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Friday, October 5, 2007

Part II

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Parts 229, 635, and 648 Taking of Marine Mammals Incidental to Operations; Atlantic Large Whale Take Reduction Plan Regulations; Final Rule

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DEPARTMENT OF COMMERCE • Amendments to § 229.32(f)(1)(iii) CFR 229.32 or downloaded from the and (g)(4)(i)(B)(1)(vi) are added effective Web site, along with a guide to the National Oceanic and Atmospheric November 5, 2007 to April 5, 2008; regulations. Administration • Paragraphs (f)(1)(ii) and (g)(4)(i)(B)(1)(iii) are removed and Background 50 CFR Parts 229, 635, and 648 reserved effective November 5, 2007; This final rule implements • [Docket No. 0612242977–7216–01; I.D. Subsequent revision of § 229.32 is modifications to the ALWTRP as 120304D] effective April 5, 2008 except for suggested by the ALWTRT, as well as paragraphs (c)(5)(ii)(B), (c)(6)(ii)(B), modifications deemed necessary by RIN 0648–AS01 (c)(7)(ii)(C), (c)(8)(ii)(B), (c)(9)(ii)(B), NMFS to meet the goals of the MMPA (d)(6)(ii)(D), and (d)(7)(ii)(D), which will Taking of Marine Mammals Incidental and ESA. Details concerning the be effective October 5, 2008. to Commercial Fishing Operations; development and justification of this Atlantic Large Whale Take Reduction ADDRESSES: Copies of the Final final rule were provided in the preamble Plan Regulations Environmental Impact Statement/ to the proposed rule (70 FR 35894, June Regulatory Impact Review for this 21, 2005) and are not repeated here. AGENCY: National Marine action can be obtained from the This final rule also incorporates a recent Service (NMFS), National Oceanic and ALWTRP Web site listed under the amendment to the ALWTRP (72 FR Atmospheric Administration (NOAA), Electronic Access portion of this 34632, June 25, 2007) that implemented, Commerce. document. Atlantic Large Whale Take with revisions, previous ALWTRP ACTION: Final rule. Reduction Team (ALWTRT) meeting regulations by expanding the Southeast summaries, progress reports on U.S. Restricted Area to include waters SUMMARY: NMFS issues this final rule to implementation of the ALWTRP, and within 35 nm (64.82 km) of the South amend the regulations implementing the the small entity compliance guide may Carolina coast, dividing the Southeast Atlantic Large Whale Take Reduction be obtained by writing Diane Borggaard, U.S. Restricted Area into Southeast U.S. Plan (ALWTRP). This final rule revises NMFS, Northeast Region, 1 Blackburn Restricted Areas North and South, and the management measures for reducing Drive, Gloucester, MA 01930. For modified regulations pertaining to the incidental mortality and serious additional ADDRESSES and Web sites for within the Southeast U.S. injury to the Northern right whale document availability see (Eubalaena glacialis), humpback whale Restricted Area. SUPPLEMENTARY INFORMATION section. (Megaptera novaeangliae), and fin Written comments regarding the Changes to the Boundaries and Seasons whale (Balaenoptera physalus) in burden-hour estimates or other aspects The ALWTRP gear modifications for commercial fisheries to meet the goals of the collection-of-information of the Marine Mammal Protection Act regulated areas of the east coast will requirements contained in this final rule extend out to the eastern edge of the (MMPA) and the Endangered Species may be submitted to Mary Colligan, Act (ESA). The measures identified in (EEZ) Assistant Regional Administrator for (effective April 7, 2008) (See Figures 1 the ALWTRP are also intended to Protected Resources, National Marine benefit minke whales (Balaenoptera and 2). The ALWTRP will also modify Fisheries Service, Northeast Region, 1 acutorostrata), which are not strategic, seasonal requirements along the east Blackburn Drive, Gloucester, MA 01930 but are known to be taken incidentally coast (effective April 7, 2008). Broad- and by e-mail to in commercial fisheries. This final rule based gear modifications will be [email protected], or fax to implements additional regulations for required on a year-round basis from 202–395–7285. the fisheries currently covered by the to 41°18.2′ N. lat. and 71°51.5′ W. ALWTRP (the Northeast sink gillnet, FOR FURTHER INFORMATION CONTACT: long. (Watch Hill, RI), south to 40°00′ N. Northeast/Mid-Atlantic American Diane Borggaard, NMFS, Northeast lat., and east to the eastern edge of the trap/pot, Mid-Atlantic gillnet, Region, 978–281–9300 Ext. 6503, EEZ. NMFS will require gear Southeast Atlantic gillnet, and [email protected]; Kristy Long, modifications in the Mid and South Southeastern U.S. Atlantic gillnet NMFS, Office of Protected Resources, Atlantic (called ‘‘Mid/South Atlantic’’ fisheries) and regulates several fisheries 301–713–2322, [email protected]; or from this point) on a seasonal basis, from the MMPA List of Fisheries for the Barb Zoodsma, NMFS, Southeast from September 1 to May 31, when first time under the ALWTRP, including Region, 904–321–2806, more sightings are reported and the risk the following: Northeast anchored float [email protected]. of entanglement with commercial gillnet, Northeast drift gillnet, Atlantic SUPPLEMENTARY INFORMATION: fishing gear is greater. Under this final blue , and Atlantic mixed species rule, a line drawn from 41°18.2′ N. lat. trap/pot fisheries targeting crab (red, Electronic Access and 71°51.5′ W. long. (Watch Hill, RI), Jonah, and rock), , finfish (black Several of the background documents south to 40°00′ N. lat., and east to the sea bass, scup, tautog, , , for the ALWTRP and the take reduction eastern edge of the EEZ, will serve as , redfish (ocean perch), and planning process can be downloaded the northern boundary for seasonal gear white hake), conch/whelk, and . from the ALWTRP Web site at http:// modifications in the Mid/South Atlantic DATES: The amendments to §§ 229.2, www.nero.noaa.gov/whaletrp/. Copies and 32°00′ N. lat. (near Savannah, GA) 229.3, and 648.264(a)(6)(i) are effective of the most recent marine mammal stock east to the eastern edge of the EEZ will April 5, 2008 and the amendment to assessment reports may be obtained by serve as the southern boundary. § 635.69(a)(3) is effective November 5, writing to Dr. Richard Merrick, NMFS, Portions of the Mid/South Atlantic 2007. 166 Water Street, Woods Hole, MA Gillnet Waters (i.e., waters within 35 nm As specified in the regulatory text 02543 or can be downloaded from the (64.82 km) of the South Carolina coast) section of this document, amendments Internet at http://www.nefsc.noaa.gov/ will be included in the Southeast U.S. to § 229.32 are effective as follows: psb/assesspdfs.htm. The complete text Restricted Area (a gillnet management • Paragraphs (f) introductory text, of the regulations implementing the area) during the restricted periods (f)(2), and (f)(3) are revised effective ALWTRP can be found either in the associated with the right whale calving November 5, 2007; Code of Federal Regulations (CFR) at 50 season (i.e. November 15 to April 15).

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NMFS is revising the seasons and the Great South Channel Restricted Area Changes to the Other Trap/Pot Gear boundaries for the southeast from will then be required to have a 600-lb Requirements November 15 to April 15 for all (272.2-kg) weak link on all flotation Effective April 7, 2008, NMFS will ALWTRP regulated fisheries, except for devices and/or weighted devices (except regulate the following trap/pot fisheries the gillnet fisheries modified through traps/pots, anchors, and leadline woven under the ALWTRP (designated as the recent amendment to the ALWTRP into the buoy line) attached to the buoy ‘‘Other Trap/Pot Fisheries’’): Crab (red, (72 FR 34632, June 25, 2007), between line. Jonah, rock, and blue), hagfish, finfish ° ′ 32 00 N. lat. (near Savannah, GA) and (black sea bass, scup, tautog, cod, ° ′ Offshore Trap/Pot Waters Area and 29 00 N. lat. (near New Smyrna Beach, haddock, pollock, redfish (ocean perch), FL) east to the eastern edge of the EEZ. Great South Channel Restricted Area (Offshore Portion) and white hake), conch/whelk, and From December 1 to March 31, shrimp. Through this final rule, these restrictions will be required for the This final rule will extend the Other Trap/Pot fisheries will be Atlantic blue crab and Atlantic mixed southern boundary of the Offshore Trap/ required to comply with current species trap/pot fisheries and the Pot Waters Area by following the 100- ALWTRP regulations, including the Southeast Atlantic gillnet universal gear modifications, and will ° ′ ° ′ fathom (600-ft or 182.9-m) line from between 29 00 N. lat. and 27 51 N. lat. 35°30′ N. lat. (just north of Cape follow the same area designations and (near Sebastian Inlet, FL) east to the Hatteras, NC) to 27°51′ N. lat. and then requirements (e.g., weak links, Seasonal eastern edge of the EEZ, and for the extending out to the eastern edge of the Area Management (SAM) program Southeastern U.S. Atlantic shark gillnet EEZ (effective April 7, 2008). In requirements as modified in this final fishery between 29°00′ N. lat. and addition to the current requirements, rule, and Cape Cod Bay and Great South 26°46.50′ N. lat. (near West Palm Beach, this final rule will lower the maximum Channel Area restrictions) currently FL) east to the eastern edge of the EEZ. breaking strength of weak links and required and revised for the / The Southeastern U.S. shark gillnet require weak links with appropriate pot fisheries covered by the ALWTRP. fishery as regulated in this final rule breaking strength on all flotation Where applicable, these fisheries will includes shark gillnetting with 5-inch devices and/or weighted devices (except also be regulated under the ALWTRP (12.7-cm) or greater stretched mesh traps/pots, anchors, and leadline woven within the portion of LMA 6 that is not south of the South Carolina/Georgia into the buoy line) attached to the buoy exempted by the ALWTRP (i.e., mouth border. line in Offshore Trap/Pot Waters that of Long Island Sound). In addition to Changes to the Lobster Trap/Pot Gear overlaps with the LMA 3 (including the complying with the current ALWTRP Requirements area known as the Area 2/3 Overlap and requirements, the Other Trap/Pot Fisheries will be required to comply Area 3/5 Overlap) and the offshore Northern Inshore State and Nearshore with the modifications for the lobster portion of the Great South Channel Trap/Pot Waters, Cape Cod Bay trap/pot fishery specified in this final Restricted Area that overlaps with the Restricted Area (May 16–December 31), rule (effective April 7, 2008) except for LMA 2/3 overlap and LMA 3 Areas from Stellwagen Bank/Jeffreys Ledge the groundline requirements where 2,000 lb (907.2 kg) to 1,500 lb (680.4 kg) Restricted Area, and Great South applicable as noted under the ‘‘Broad- (effective April 7, 2008). Channel Restricted Area (Nearshore Based Gear Modifications’’ section Portion) Southern Nearshore Trap/Pot Waters below. The regulations for Northern Area Red Crab Trap/Pot Gear Nearshore Trap/Pot Waters, Stellwagen Bank/Jeffreys Ledge Restricted Area, This final rule will extend the Through this final rule, the maximum and the Federal portion of the Cape Cod southern boundary of the Southern weak link breaking strength will be Bay Restricted Area (May 16–December Nearshore Trap/Pot Waters Area by lowered from 3,780 lb (1,714.6 kg) to 31) will continue to require one buoy following the 100-fathom (600-ft or 2,000 lb (907.2 kg). A 2,000-lb (907.2-kg) 182.9-m) line from 35°30′ N. lat. to weak link will be required on all line on trawls of 5 or fewer traps. ° ′ For Northern Inshore State Trap/Pot 27 51 N. lat. and then extending the flotation devices and/or weighted Waters and the state portion of the Cape boundary inshore to the shoreline or devices (except traps/pots, anchors, and Cod Bay Restricted Area (May 16– exempted areas. The Southern leadline woven into the buoy line) December 31), this final rule will Nearshore Trap/Pot Waters is defined by attached to the buoy line in the red crab eliminate the Lobster Take Reduction LMAs 4, 5, and 6 (except for the fishery (effective April 7, 2008). ° ′ Technology List (i.e., a list of gear exempted areas) north of 35 30 N. lat. Changes to the All Trap/Pot Gear modification options) and require a 600- and by the 100-fathom (600-ft or 182.9- Requirements lb (272.2-kg) weak link on all flotation m) line west to the shoreline or devices and/or weighted devices (except exempted areas south of 35°30′ N. lat. In Broad-Based Gear Modifications traps/pots, anchors, and leadline woven addition to the current requirements, The majority of the broad-based gear into the buoy line) attached to the buoy this final rule will implement the modifications identified in this final line (effective April 7, 2008). regulations currently required in the rule for trap/pot gear will become This final rule will also lower the Southern Nearshore Trap/Pot Waters in effective six months after publication of weak link breaking strength on all the portion of LMA 6 that is neither this final rule, April 7, 2008, except for flotation devices and/or weighted exempted under the ALWTRP waters the groundline requirement that will be devices attached to the buoy line in the (i.e., mouth of Long Island Sound) nor phased-in and effective October 6, 2008, nearshore portion of the Great South currently regulated by the ALWTRP except in SAM and Cape Cod Bay Channel Restricted Area that overlaps (effective April 7, 2008). This final rule Restricted Areas. When the majority of with Lobster Management Area (LMA) 2 will also require a 600-lb (272.2-kg) the broad-based gear modifications and the Outer Cape (July 1–March 31) weak link on all flotation devices and/ become effective on April 7, 2008, the from 2,000 lb (907.2 kg) to 600 lb (272.2 or weighted devices (except traps/pots, Dynamic Area Management (DAM) kg) (effective April 7, 2008). All anchors, and leadline woven into the program will be eliminated. When the fishermen in the nearshore portion of buoy line) attached to the buoy line. sinking/neutrally buoyant groundline

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requirement becomes fully effective, definition, NMFS finds that the 1,100 lb (499.0 kg), depending on the October 6, 2008, this final rule will definition does not cover this portion of length of the gillnet net panel (effective eliminate the Seasonal Area the gear. (The groundline definition April 7, 2008). The weak link Management (SAM) program. However, ‘‘with reference to trap/pot gear, means requirement will apply to all variations until October 6, 2008, the Other Trap/ a line connecting traps in a trap trawl, in panel size. For example, gillnet net Pot Fisheries will be subject to SAM and with reference to gillnet gear, means panels of 50 fathoms (300 ft or 91.4 m) program requirements (see a line connecting a gillnet or gillnet or less in length, will be required to modifications to area and gear bridle to an anchor or buoy line.’’) have one weak link in the floatline at requirements as noted in this final rule). NMFS did not specifically seek nor the center of the gillnet net panel. For receive public comment on the gillnet net panels greater than 50 ALWTRP-Regulated Trap/Pot Waters groundline definition related to the line fathoms (300 ft or 91.4 m), weak links Due to the addition of new trap/pot between traps and anchors, and will be placed continuously along the fisheries, ALWTRP-Regulated Lobster accordingly cannot make any floatline separated by a maximum Waters will be re-designated as adjustments to the definition at this distance of 25 fathoms (150 ft or 45.7 ALWTRP-Regulated Trap/Pot Waters to time. NMFS will be conducting further m). For all variations in panel size, the reflect the broader application of investigations of this gear configuration following weak link requirements will ALWTRP requirements. Accordingly, through contact with fishermen and apply: (1) Weak links will be placed in under the final rule, the term ‘‘lobster states to determine how common a the center of each of the up and down trap/pot’’ will be replaced with ‘‘trap/ practice it is in trap/pot fisheries, lines at each end of each gillnet net pot’’ where it appears in the regulations determine the type of line used in this panel, and (2) one floatline weak link implementing the ALWTRP. portion of the gear, quantify potential will be placed as close as possible to Boundaries and Seasons risk if floating line is used, determine each end of the gillnet net panel just any new issues that may be raised by before the floatline meets the up and Under this final rule, the areas will be requiring sinking and/or neutrally down line. Up and down line means the created by establishing a line that is buoyant line in this area of the gear, and line that connects the floatline and bounded on the west by a line running discuss the appropriate management leadline at the end of each gillnet net ° ′ ° ′ from 41 18.2 N. lat. and 71 51.5 W. response with the ALWTRT at the next panel. ° ′ long. (Watch Hill, RI), south to 40 00 N. meeting. In addition to the above configuration lat., and east to the eastern edge of the for gillnet net panel weak links, NMFS EEZ. The gear fished in the area north Weak Links will allow the following option for all of this line will be required to Through this final rule, weak links of variations in panel size: (1) Weak links incorporate current and revised broad- the appropriate breaking strength will will be placed in the center of each of based gear modifications year-round; be required on all flotation devices and/ the up and down lines at each end of the gear fished in the area south of this or weighted devices (except traps/pots, each gillnet net panel, (2) weak links line to 32°00′ N. lat. and east to the anchors, and leadline woven into the will be placed between the floatline tie eastern edge of the EEZ will require gear buoy line) attached to the buoy line loops between gillnet net panels, and (3) modifications from September 1 to May (effective April 7, 2008) for all weak links will be placed between the 31 (effective April 7, 2008). Areas south ALWTRP-regulated areas and fisheries floatline tie loop and bridle or buoy line of 32°00′ N. lat. will require gear during the time periods when ALWTRP at each end of a net string (depending modifications in the following areas and restrictions apply. The Other Trap/Pot on how the gear is configured) (see during the following seasonal time Fisheries added to the ALWTRP by this Figure 3). Tie loops mean the loops on periods: between the 32°00′ N. lat. and final rule will also be subject to the a gillnet net panel used to connect 29°00′ N. lat. east to the eastern edge of weak link requirements. gillnet net panels to the buoy line, the EEZ from November 15–April 15; groundline, bridle, or each other. NMFS ° ′ ° ′ Changes to the Gillnet Gear between 29 00 N. lat. and 27 51 N. lat. Requirements will also be allowing the optional east to the eastern edge of the EEZ from configuration in the current SAM areas, December 1 through March 31 (effective Other Northeast Gillnet Waters, as well as in established DAM zones April 7, 2008). Stellwagen Bank/Jeffreys Ledge when a gear modification option is Restricted Area, Cape Cod Bay selected (effective November 5, 2007). Sinking/Neutrally Buoyant Groundlines Restricted Area (May 16–December 31), See the Changes from Proposed Rule Under this final rule, the lobster trap/ Great South Channel Restricted Area section (6) below for further information pot fishery currently regulated by the (July 1–March 31), and Great South on the rationale for this optional ALWTRP, as well as the other trap/pot Channel Sliver Restricted Area configuration, as well as for allowing it fisheries added through this final rule, in the current SAM areas and Anchored Gillnets will be required to use groundline established DAM zones. composed entirely of sinking and/or Under this final rule, NMFS will For the above configuration options, neutrally buoyant line in the applicable require an 1,100-lb (499.0-kg) weak link weak links must be chosen from the areas and time periods effective twelve on all flotation devices and/or weighted following combinations approved by months after publication of this final devices (except gillnets, anchors, and NMFS: Plastic weak links or rope of rule (unless otherwise required in the leadline woven into the buoy line) appropriate breaking strength. If rope of Cape Cod Bay Restricted Area for trap/ attached to the buoy line (effective April appropriate breaking strength is used pots [January 1–May 15]). The sinking 7, 2008). For anchored gillnets in the throughout the floatline or as the up and and/or neutrally buoyant groundline Northeast sink gillnet fishery, NMFS down line, or if no up and down line requirement will be effective in will also require an increase in the is present, then individual weak links expanded SAM areas effective 6 months number of weak links per gillnet net are not required on the floatline or up after publication of this final rule. panel from one weak link with a and down line. In addition, all anchored Based on public comments received maximum breaking strength of 1,100 lb gillnets, regardless of the number of regarding the line between traps and (499.0 kg) to five or more weak links gillnet net panels, will be required to be anchors, and a review of the groundline with a maximum breaking strength of securely anchored with the holding

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capacity equal to or greater than a 22- unregulated waters (effective April 7, Other Southeast Gillnet Waters lb (10.0-kg) Danforth-style anchor at 2008). Under this final rule, the management each end of the net string (effective Gillnets within 300 yards (900 ft or area for the Southeast Atlantic gillnet April 7, 2008). Dead weights and heavy 274.3 m) of the shoreline of North and Southeastern U.S. Atlantic shark leadline will not be available as an Carolina that are not returned to port gillnet fisheries off Georgia and Florida optional anchoring system. The same with the vessel will have an additional will be expanded and renamed configuration option would be required option for setting their gear. Gillnets set (effective April 7, 2008). Specifically, for all gillnet net panels in a string. in this area may configure their gear as this final rule will define the waters east Mid/South Atlantic Gillnet Waters follows: five or more weak links per of 80°00′ W. long. from 32°00′ N. lat. ° ′ Under this final rule, the Mid-Atlantic gillnet net panel (depending on the south to 26 46.5 N. lat. and out to the Coastal Waters Area will be expanded length of the gillnet net panel) with a eastern edge of the EEZ as one ALWTRP and renamed to include waters maximum breaking strength of 600 lb management area named ‘‘Other currently unregulated by the ALWTRP (272.2 kg) must be deployed, and be Southeast Gillnet Waters’’. The that include a component of the U.S. anchored with the holding capacity expansion of this area east to the eastern Mid-Atlantic gillnet fishery and equal to or greater than an 8-lb (3.6-kg) edge of the EEZ will be consistent with Southeast Atlantic gillnet fishery. Danforth-style anchor on the offshore the ALWTRP area boundary expansion Specifically, gillnet fisheries in the end of the net string and with a dead in the Mid-Atlantic. waters from 72°30′ W. long., south to the weight equal to or greater than 31-lb Under this final rule, NMFS will Virginia/North Carolina border, east to (14.1-kg) on the inshore end of the net establish the seasonal restricted time the eastern edge of the EEZ, and string (effective April 7, 2008). The period in Other Southeast Gillnet extending south to 32°00′ N. lat. and out entire net string must be set within 300 Waters (effective April 7, 2008). to the eastern edge of the EEZ will be yards (900 ft or 274.3 m) of the beach ALWTRP regulations for the Southeast referred to as Mid/South Atlantic in North Carolina for this optional Atlantic gillnet fishery operating in the Gillnet Waters (effective April 7, 2008). anchoring system and gillnet net panel Other Southeast Gillnet Waters between ° ′ ° ′ Portions of the Mid/South Atlantic weak link configuration. This 32 00 N. lat. to 29 00 N. lat. (near New Gillnet Waters (i.e., waters within 35 nm configuration is in addition to the final Smyrna Beach, FL) will be effective (64.82 km) of the South Carolina coast) configuration of five or more weak links from November 15 to April 15, and ° ′ ° ′ are also included in the Southeast U.S. per gillnet net panel (depending on the between 29 00 N. lat. and 27 51 N. lat. Restricted Area during the November 15 length of the gillnet net panel) with a will be effective from December 1 to to April 15 right whale calving season. maximum breaking strength of 1,100-lb March 31. For the Southeastern U.S. Atlantic shark gillnet fishery, ALWTRP Anchored Gillnets (499.0-kg), and anchored with the holding capacity equal to or greater than regulations in the Other Southeast ° ′ Under this final rule, all anchored a 22-lb (10.0-kg) Danforth-style anchor Gillnet Waters between 32 00 N. lat. to ° ′ gillnets in the Mid/South Atlantic on each end of the net string. Specifics 29 00 N. lat. will be effective from Gillnet Waters must have an 1,100-lb on the configuration options for the November 15 to April 15, and between ° ′ ° ′ (499.0-kg) weak link on all flotation placement of gillnet net panel weak 29 00 N. lat. and 26 46.5 N. lat. will be devices and/or weighted devices (except links can be found in the Other effective from December 1 to March 31. gillnets, anchors, and leadline woven Northeast Gillnet Waters section of this Southeast Atlantic Gillnet Fishery into the buoy line) attached to the buoy rule. line (effective April 7, 2008). All gillnet gear in Other Southeast Additionally, if gillnets are not returned At this time, NMFS is not regulating Gillnet Waters will be regulated in the to port with the vessel they must gillnets that are anchored to the beach same manner as the Mid/South Atlantic contain five or more weak links and subsequently hauled onto the beach anchored gillnet fishery (effective April depending on the length of the gillnet to retrieve the catch. This fishing 7, 2008). The regulated waters for the net panel, with a maximum breaking technique is known to occur on the Southeast Atlantic gillnet fishery south strength no greater than 1,100 lb (499.0 beaches of North Carolina. NMFS will of 32°00′ N. lat. to 27°51′ N. lat. and east kg) for each gillnet net panel; and be be discussing the appropriate from 80°00′ W. long. to the eastern edge anchored at each end with an anchor management measures for this unique of the EEZ will be required to comply capable of the holding capacity equal to fishery with the ALWTRT at a future with the ALWTRP universal gear or greater than a 22-lb (10.0-kg) meeting. In the meantime, NMFS will be requirements (e.g., no buoy line floating Danforth-style anchor (effective April 7, conducting outreach and research on at the surface and no wet storage of 2008). The configuration options for this fishery to support future gear), as well as the following: gillnets gillnet net panel weak links and discussions with the ALWTRT. NMFS must have all flotation devices and/or anchoring are similar to that specified will be coordinating with the North weighted devices (except gillnets, for anchored gillnets in the Other Carolina Department of Marine anchors, and leadline woven into the Northeast Gillnet Waters section of this Fisheries to revise the definition for buoy line) attached to the buoy line rule. The same configuration option beach -based gear to help ensure with a weak link having a maximum would be required for all gillnet net landings are reported accurately for breaking strength no greater than 1,100 panels in a string. All gillnets, even if beach-based gear versus gillnets, among lb (499.0 kg); and have all gillnet net returned to port with the vessel, must other issues. panels containing weak links with a also contain one weak link with a Drift Gillnets maximum breaking strength no greater maximum breaking strength no greater than 1,100 lb (499.0 kg) in the center of than 1,100 lb (499.0 kg) in the center of Under this final rule, current each floatline of each 50 fathom (300 ft the floatline of each gillnet net panel up requirements for drift gillnet gear in or 91.4m) gillnet net panel or every 25 to and including 50 fathoms (300 ft or Mid/South Atlantic Gillnet Waters are fathoms (150 ft or 45.7 m) for longer 91.4 m) in length, or at least every 25 expanded in time and space as noted in panels (effective April 7, 2008). fathoms (150 ft or 45.7 m) along the the Boundaries and Seasons section In addition, under this final rule, all floatline for longer panels in previously above (effective April 7, 2008). gillnets in the Other Southeast Gillnet

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Waters that are not returned to port with regulated in waters from 29°00′ N. lat. seasonal closures in right whale the vessel will be required to contain to 26°46.5′ N. from December 1 through restricted areas. Specifically, fishermen five or more weak links, depending on March 31, and the Southeast Atlantic using Northeast anchored float gillnets the length of the gillnet net panel, with gillnet fishery will be regulated in will be prohibited from fishing inside a maximum breaking strength no greater waters from 29°00′ N. lat. to 27°51′ N. the Cape Cod Bay Restricted Area than 1,100 lb (499.0 kg) for each gillnet lat. from December 1 through March 31. annually from January 1 through May net panel; and be anchored at each end NMFS is also allowing the use of 15, and inside the Great South Channel with an anchor with the holding (VMS) in lieu Restricted Area annually from April 1 capacity equal to or greater than a 22- of the 100-percent observer coverage through June 30. lb (10.0-kg) Danforth-style anchor requirement for the Southeastern U.S. (effective April 7, 2008). The Atlantic shark gillnets in the newly Northeast Drift Gillnet Fishery configuration options for gillnet net defined Southeast U.S. Monitoring Area This final rule will regulate the panel weak links and anchoring are (27°51′ N. lat. to 26°46.5′ N.) under the Northeast drift gillnet fishery (i.e., nets similar to that specified for anchored ALWTRP (effective November 5, 2007). that are present at the ocean surface and gillnets in the Other Northeast Gillnet Although 100-percent observer coverage are not anchored to the ocean floor on Waters section of this final rule. The will no longer be required in this area, either end) according to the same configuration option would be NMFS will retain observer coverage requirements for the Mid-Atlantic drift required for all gillnet net panels in a sufficient to produce statistically gillnet fishery (effective April 7, 2008). string. reliable results for evaluating the impact The Northeast drift gillnet fishery will Southeastern U.S. Atlantic Shark of the fishery on protected resources. In not be subject to the SAM program, but Gillnet Fishery light of the revised change from 100- drift gillnets will be prohibited from percent observer coverage to VMS, Cape Cod Bay Restricted Area from For the Southeastern U.S. Atlantic NMFS is changing the name of the January 1 through May 15 and from the Shark gillnet fishery operating in Other ‘‘Southeast U.S. Observer Area’’ to the Great South Channel Restricted Area Southeast Gillnet Waters, the following ‘‘Southeast U.S. Monitoring Area.’’ from April 1 through June 30 (similar to requirements will be in effect: (1) No net Amendment 1 to the FMP for Atlantic the requirements for anchored gillnet), is set within 3 nautical miles (5.6 km) , , and (68 FR except for the Sliver Area, where of a right, humpback, or fin whale; and 74746, December 24, 2003; 69 FR 19979, restricted drift gillnet fishing will be (2) If a right, humpback, or fin whale April 15, 2004; and 69 FR 28106, May allowed. moves within 3 nautical miles (5.6 km) 18, 2004) requires gillnet vessels issued Changes to the All Gillnet Gear of the set gear, the gear is removed directed shark limited access permits Requirements immediately from the water (effective that have gillnet gear on board, April 7, 2008). regardless of their location, to employ a Broad-Based Gear Modifications Southeast U.S. Restricted Area (N and NMFS approved VMS during the right Most of the broad-based gear S) and Southeast U.S. Monitoring Area whale calving season specified in the modifications for gillnet gear identified Under this final rule, the management ALWTRP regulations. Currently, as in this final rule will become effective areas for the Southeastern U.S. Atlantic stated in the August 17, 2004, final rule six months after publication of this final shark gillnet and Southeast Atlantic (69 FR 51010, August 17, 2004) rule, April 7, 2008, except for the gillnet fishery management areas will be specifying November 15, 2004, as the groundline requirement discussed redefined (effective April 7, 2008). effective date of this requirement, the below, which will be phased-in and Specifically, for the Southeastern U.S. applicable right whale calving season is effective twelve months after Atlantic shark gillnet fishery, the identified as November 15 through publication of this final rule (except in regulated waters landward of 80°00′ W. March 31. This final rule will change SAM areas), October 6, 2008. When the long. from 27°51′ N. lat. to 26°46.5′ N. the right whale season specified in those majority of the broad-based gear lat. will be designated as the Southeast regulations for the Southeast U.S. modifications become effective on April U.S. Monitoring Area (rather than the Monitoring Area to December 1 through 7, 2008, the DAM program will be Southeast U.S. Observer Area). For both March 31 and amend the regulatory text eliminated. When the sinking/neutrally the Southeastern U.S. Atlantic shark in 50 CFR 635.69(a)(3) regarding the buoyant groundline requirement gillnet and Southeast Atlantic gillnet Highly Migratory Species (HMS) VMS becomes fully effective, October 6, 2008, fisheries, the regulated waters landward requirement for Southeastern U.S. this final rule will eliminate the SAM of 80°00′ W. long. from 32°00′ N. lat. to Atlantic shark gillnet vessels. program. However, until this occurs, 27°51′ N. lat. will be designated as the Changes to the Other Gillnet Gear some of the other gillnet fisheries that Southeast U.S. Restricted Area, Requirements will be added to the ALWTRP will be consisting of a northern area ‘‘N’’ subject to the SAM program (see between 32°00′ N. lat. and 29°00′ N. lat. Northeast Anchored Float Gillnet modifications to area and gear and a southern area ‘‘S’’ between 29°00′ Fishery requirements as noted in this final rule). N. lat. and 27°51′ N. lat. This final rule will regulate the Under this final rule, the management Northeast anchored float gillnet fishery Boundaries and Seasons areas for gillnet fisheries will be (gillnets anchored to the ocean floor Under this final rule, an area bounded regulated with rolling restrictions with lines running from the anchors to on the west by a line running from (effective April 7, 2008). The the nets at the surface) according to the 41°18.2′ N. lat. and 71°51.5′ W. long. Southeastern U.S. Atlantic shark gillnet requirements for the Northeast anchored (Watch Hill, RI), south to 40°00′ N. lat., and Southeast Atlantic gillnet fisheries gillnet fishery requirements (effective and east to the eastern edge of the EEZ will be regulated in waters from 32°00′ April 7, 2008). The Northeast anchored will be created. The gillnet gear fished N. lat. to 29°00′ N. lat. (near New float gillnet fishery will be subject to the in the area north of this line will be Smyrna Beach, FL) from November 15 SAM program as modified in this final required to incorporate current and through April 15. The Southeastern U.S. rule until twelve months after revised broad-based gear modifications Atlantic shark gillnet fishery will be publication of this final rule, and to year-round. Gillnet gear fished in the

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area south of this line to 32°00′ N. lat. ALWTRP, and the Northeast anchored within these areas. The changes to the and east to the eastern edge of the EEZ float gillnet fishery, which will be SAM program described in this final will be required to comply with the added by this final rule, will be required rule will become effective on April 7, broad-based gear modifications detailed to use groundline composed entirely of 2008, to protect right whales. The SAM above in Mid/South Atlantic Gillnet sinking and/or neutrally buoyant line in program will be eliminated October 6, Waters from September 1 to May 31. the areas and time periods covered 2008, when all of the broad-based gear However, portions of the Mid/South under the ALWTRP effective on October modifications are effective. Atlantic Gillnet Waters (i.e., waters 6, 2008. The sinking and/or neutrally This final rule will modify the within 35 nm (64.82 km) of the South buoyant groundline requirement will be existing coordinates for the SAM areas. Carolina coast) will be included in the effective in expanded SAM areas Specifically, the western boundary of effective on April 7, 2008. Southeast U.S. Restricted Area during SAM West will be extended westward the November 15 to April 15 right whale Weak Links to encompass seasonal aggregations of calving season. Gillnet fishing in the right whales that occur north of the area south of 32°00′ N. lat. will be Under this final rule, to further reduce the risk of serious injury and mortality Cape Cod Bay Restricted Area. required to comply with the broad- Similarly, the southern boundary of based gear modifications in the from entanglement in gillnet gear, weak links having a maximum breaking SAM West will be extended further following areas and seasonal time south, adjoining the Great South periods: All gillnet fisheries (Southeast strength of 1,100 lb (499.0 kg) will be required on all flotation devices and/or Channel Restricted Sliver Area, to Atlantic and Southeastern U.S. Atlantic encompass seasonal aggregations of shark) between 32°00′ N. lat. and 29°00′ weighted devices (except gillnets, anchors, and leadline woven into the right whales that occur south of the N. lat. from November 15–April 15; current SAM West and west of the Great Southeast Atlantic gillnet fishery buoy line) attached to the buoy line (effective April 7, 2008). This South Channel Restricted Area. Finally, between 29°00′ N. lat. and 27°51′ N. lat. requirement will apply to all current the southern boundary of SAM East east to the eastern edge of the EEZ from and revised ALWTRP regulated areas would be revised to include the Great December 1–March 31; and and gillnet fisheries. The weak link South Channel Restricted Area Southeastern U.S. Atlantic shark gillnet requirement is intended to reduce the including the Sliver Area, but will fisheries between 29°00′ N. lat. and risk of entanglement and serious injury exclude the southeast corner of the 26°46.5′ N. lat. east to the eastern edge or mortality due to entanglements in existing SAM East area where there of the EEZ from December 1–March 31. buoy lines and surface systems. have been very few right whale Sinking/Neutrally Buoyant Groundlines sightings. The western boundary of Revised SAM Program SAM East will be extended west to 69° Under this final rule, the Northeast The final rule will amend the SAM 45′W. long. to encompass right whales anchored gillnet, Mid-Atlantic anchored program by establishing new boundaries that might remain in SAM West in May gillnet, and Southeast Atlantic gillnet for the SAM areas and revising the gear (after the SAM West area restrictions fisheries currently regulated by the modifications required for fishing 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°30′ ...... 70°30′ (NW Corner) 2W ...... 42°30′ ...... 69°24′ 3W ...... 41°48.9′ ...... 69°24′ 4W ...... 41°40′ ...... 69°45′ 5W ...... 41°40′ ...... 69°57′ along the eastern shoreline of Cape Cod to 6W ...... 42°04.8′ ...... 70°10′ 7W ...... 42°12′ ...... 70°15′ 8W ...... 42°12′ ...... 70°30′ 1W ...... 42°30′ ...... 70°30′ (NW Corner)

SAM East Polygon—in Effect From May 1–July 31

1E ...... 42°30′ ...... 69°45′ (NW Corner) 2E ...... 42°30′ ...... 67°27′ 3E ...... 42°09′ ...... 67°08.4′ 4E ...... 41°00′ ...... 69°05′ 5E ...... 41°40′ ...... 69°45′ 1E ...... 42°30′ ...... 69°45′ (NW Corner)

Revised SAM Gear Modifications buoy lines per trap/pot trawl or per net Changes to the SAM Program for All string, allow the use of floating line on Trap/Pot Gear In addition to the changes discussed the bottom one-third or less of the buoy above, this final rule will revise the gear line, and allow two configuration Under this final rule, in addition to modifications required for fishing options for gillnet net panel weak links. the measures revised for trap/pot within the SAM areas during the The same configuration option would be fisheries, the following requirements applicable time periods. Under this final required for all gillnet net panels in a specific to the SAM and DAM programs rule, NMFS will allow the use of two string. would apply. The SAM areas will be

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expanded and all lobster trap/pot restrictive Great South Channel 7, 2008). Under this final rule, the color fisheries operating within these areas Restricted Gillnet Area closure (April 1 and marking scheme for nets used in the during the restricted time periods would through June 30) will supercede the Southeastern U.S. Atlantic shark gillnet be subject to the current SAM SAM program. As a result, gear fishery will remain status quo and only restrictions, plus the following: A modifications for fishing with gillnet buoy lines greater than 4 feet (1.2 m) in second buoy line will be allowed and gear in the SAM area will apply in the length would need to be marked for this the bottom one-third of the buoy line Great South Channel Restricted Gillnet fishery. may consist of floating line. In addition, Area from July 1 through July 31, and Trap/Pot Gear Marking Colors the trap/pot fisheries subject to the SAM in the Great South Channel Sliver program will be expanded to include: Restricted Area from May 1 through July The ALWTRP will require fishermen hagfish, finfish (black sea bass, scup, 31. The DAM program will be to mark their trap/pot buoy lines with tautog, cod, haddock, pollock redfish, eliminated, and replaced with the one red 4-inch (10.2 cm) mark while and white hake), conch/whelk, shrimp, expanded SAM areas (effective April 7, they fish in the following management red, blue, rock, and Jonah crab. The 2008). areas: Cape Cod Bay Restricted Area, expanded SAM area will include the Northern Nearshore Trap/Pot Waters, Other Changes for All Trap/Pot and Great South Channel Restricted Area; and Stellwagen Bank/Jeffreys Ledge. To Gillnet Gear therefore, trap/pot gear will be subject to remain consistent with the gear marking the SAM program inside right whale DAM Program color scheme in the North Atlantic, restricted areas during time periods The majority of the modifications in under this final rule, NMFS will require when the requirements for fishing this final rule will become effective on red marking on the buoy lines of trap/ inside these areas are no more April 7, 2008, including the pot gear fished in Northern Inshore conservative than the surrounding replacement of the DAM program. State Trap/Pot Waters. The trap/pot gear waters (i.e., when the protections of Consequently, on April 7, 2008, when marking color in the Great South right whale restricted areas disappear). the SAM areas are expanded, the Channel Restricted Area is black. However, the more restrictive Great expanded SAM program will replace the However, under this final rule, for South Channel Restricted Trap/Pot Area DAM program. However, until April 7, consistency with nearby management closure (April 1 through June 30) will 2008, the currently regulated trap/pot areas, the Great South Channel supercede the SAM program. As a and gillnet fisheries, will be subject to Restricted Area gear marking color will result, gear modifications for fishing both the SAM and DAM programs. After be either black or red, depending on the with trap/pot gear in the SAM area will April 7, 2008, the currently regulated area of overlap with offshore (i.e., LMA apply in the Great South Channel trap/pot and gillnet fisheries, as well as 2/3 Overlap and LMA 3) and nearshore Restricted Trap/Pot Area from July 1 those added to the ALWTRP, will be areas (i.e., LMA 2 and the Outer Cape), through July 31. The DAM program will subject to the expanded SAM program. respectively. The gear marking colors be eliminated, and replaced with the for trap/pot gear in the Southern expanded SAM areas (effective April 7, Groundlines Nearshore Trap/Pot Waters and Offshore 2008). Under this final rule, for both trap/pot Trap/Pot Waters will remain orange and black, respectively. Changes to the SAM Program for Gillnet and gillnet fisheries, the SAM program Gear will be eliminated and replaced with Gillnet Gear Marking Colors broad-based gear modifications, Under this final rule, in addition to including a requirement that all Under this final rule, for consistency the measures revised for gillnet groundlines must be composed of with the current gillnet gear marking fisheries, the following requirements sinking and/or neutrally buoyant line, scheme in the Northeast Atlantic, NMFS specific to the SAM and DAM programs effective on October 6, 2008 (unless will require one 4-inch (10.2-cm) green would apply. The SAM areas will be otherwise required in the Cape Cod Bay mark midway along the buoy line for expanded, and all gillnet fisheries Restricted Area for trap/pot (January 1– the two new fisheries that will be added operating within these areas during the May 15) or SAM areas). to the ALWTRP: Northeast drift gillnet restricted time periods will be subject to and Northeast anchored float gillnet. the current SAM restrictions, plus the Gear Marking Prior to this final rule, there were no following: A second buoy line will be Under this final rule, NMFS will gear marking requirements for the two allowed and the bottom one-third of the expand requirements to fisheries and gillnet fisheries operating in the Mid/ buoy line may be composed of floating areas not previously regulated under the South Atlantic: the Mid/South Atlantic line. In addition, gillnet fisheries would ALWTRP or required to mark gear such anchored gillnet and Mid/South be allowed two configuration options as the following: Northeast drift gillnet; Atlantic drift gillnet fisheries. Under for gillnet net panel weak links as noted Northeast anchored float gillnet; this final rule, NMFS will require that in the Other Northeast Gillnet Waters Northern Inshore State Trap/Pot Waters; these fisheries mark their buoy lines section of this rule. The gillnet fisheries LMA 6 portion of Southern Nearshore with one 4-inch (10.2-cm) blue mark regulated under the SAM program will Trap/Pot Waters; Mid/South Atlantic midway along the buoy line. be expanded to include Northeast Gillnet Waters; and Other Southeast Under this final rule, the Southeast anchored float gillnets. The expanded Gillnet Waters (effective April 7, 2008). Atlantic gillnet fishery will be required SAM area will include the Great South The gear marking scheme will require to mark their buoy lines with one 4-inch Channel Restricted Area; therefore, one 4-inch (10.2 cm) colored mark (10.2-cm) yellow mark midway on the gillnet gear will be subject to the SAM midway along the buoy line. buoy line in the same manner as the program inside right whale restricted Additionally, the gear marking scheme Mid/South Atlantic gillnet fisheries. As areas during time periods when the will require all surface buoys to identify mentioned above, the color and marking requirements for fishing inside these the vessel registration number, vessel scheme for nets used in the areas are no more conservative than the documentation number, Federal permit Southeastern U.S. Atlantic shark gillnet surrounding waters (i.e., when the number, or whatever positive fishery would remain status quo and protections of right whale restricted identification marking is required by the only buoy lines greater than 4 feet (1.2 areas disappear). However, the more vessel’s home-port state (effective April m) in length will need to be marked.

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Exempted Waters Massachusetts exemption line. This Charles Light to Cape Henry Light Modifications to the exempted waters final rule will not modify the current (Figure 7). In addition, the existing are effective on April 7, 2008. exemption lines for Massachusetts or exemption line for Smith Island Inlet Rhode Island, except for minor will be removed from the exempted Coastal Exempted Waters refinement of the exemption line waters section of the regulations To be consistent throughout the east coordinates for Point Judith Pond and because the 72 COLREGS line for coast, under this final rule, with the Quonochontaug Pond Inlets in Rhode Chesapeake Bay includes the entrance exceptions detailed below, NMFS will Island. However, under this final rule, to this inlet. exempt all marine and tidal waters NMFS will clarify that the exemption The existing exemption lines in the landward of the 72 COLREGS line coordinates drawn for Narragansett Southeast (North Carolina to Florida) demarcation lines. The 72 COLREGS Bay and the Sakonnet River match the will remain unchanged. However, lines are well known and widely 72 COLREGS lines for these waters Captain Sam’s Inlet (South Carolina) published lines of demarcation. In four (Figure 5). will be added to the exempted waters In New York, with the exception of areas, Casco Bay (Maine), Portsmouth section of the regulations because it New York Harbor, all embayments, Harbor (New Hampshire), the state of does not have a 72 COLREGS line. harbors, and inlets are currently NMFS believes that the exemption Massachusetts, and Long Island Sound exempted under the ALWTRP. Under lines contained in this final rule are and Gardiners Bay (New York), NMFS this final rule, these exempted waters appropriate in light of the analysis of will not use the 72 COLREGS lines and will remain unchanged with the the most recent sightings data from will instead create different exemption exception of the Long Island Sound and available sources, and will not create a lines. Any exemption lines for these Gardiners Bay area. However, NMFS substantial increase in risk to large areas, as well as areas where the 72 will clarify that the exemption lines for whales from fishing gear. NMFS will COLREGS lines do not exist, are Shinnecock Bay Inlet, Moriches Bay continue to work in collaboration with explained in the Changes From the Inlet, Fire Island Inlet, and Jones Inlet state partners to monitor all exemption Proposed Rule sections (2) through (4) match the 72 COLREGS demarcation areas and should new information below. lines. In addition, NMFS will create an become available regarding the Based on the public comments exemption line for New York Harbor received and an analysis of the available exemption areas, NMFS will share this based on the 72 COLREGS line. This is information with the ALWTRT to data, NMFS will use an exemption line a line drawn from East Rockaway Inlet for the coast of Maine that is largely determine if changes to the exemption Breakwater Light to Sandy Hook Light. areas are warranted. based on the line suggested by the Under this final rule, NMFS will exempt Maine Department of Marine Resources a portion of Block Island Sound Offshore Exempted Areas (Maine DMR). The final exemption line landward of the territorial sea baseline Based on a review of the best for Maine will begin at the Maine- which extends from Watch Hill Point, available scientific information, NMFS Canada border and extend south and Rhode Island, to Montauk Point, New has determined that exempting waters at west along the Maine coastline to York (Figure 5). See the Changes From depths greater than 275 fathoms (1,650 Odiornes Point, New Hampshire. The the Proposed Rule section (4) below for ft or 502.9 m) will not increase the risk line will be connected using a series of further information on the rationale for of large whale entanglement in 25 buoys and islands along the Maine creating the Block Island Sound groundlines, as most large whales are coast (Figure 4). See the regulations in exemption line. not known to dive to these depths. To this final rule for the coordinates of the NMFS clarifies that the entire account for variations in groundline Maine exemption line. See Changes shoreline of New Jersey would be profiles, NMFS added 5 fathoms (30 ft From the Proposed Rule section (2) exempted landward of the 72 COLREGS or 9.1 m) to achieve an offshore below for further information on the demarcation lines. In doing this, the exemption depth of 280 fathoms (1,680 rationale for the final Maine exemption exemption line for Barnegat Inlet will be ft or 512.1 m). Therefore, this final rule line. relocated slightly east of the current exempts trap/pot and gillnet fishermen Through this final rule, NMFS is exemption line to make it consistent from the requirement to use sinking modifying the exempted waters for New with the 72 COLREGS demarcation line. and/or neutrally buoyant groundlines in Hampshire’s three harbors, two as NMFS redefines the exemption line waters deeper than 280 fathoms (1,680 proposed and one slightly modified. As for Delaware Bay as the 72 COLREGS ft or 512.1 m). Additionally, this final proposed, NMFS will exempt Rye and demarcation line. This is a line drawn rule exempts gillnet net panel weak link Hampton Harbors according to the lines from Cape May Light to Harbor of and anchoring requirements if the depth drawn across the headlands which mark Refuge Light; thence to the of the float-line is in waters deeper than their entrances to the sea. Portsmouth northernmost extremity of Cape 280 fathoms (1,680 ft or 512.1 m). Harbor will not be exempted according Henlopen (Figure 6). Along the to the 72 COLREGS demarcation line Maryland and Virginia shorelines, two Regulatory Language Changes (the only 72 COLREGS line found in the of the four existing exemption lines Changes listed below are effective on state) because it will be exempted match the 72 COLREGS lines. However, April 7, 2008 unless otherwise noted. through the final exemption line for the exemption line from Chincoteague Maine, as this line’s final coordinate is to Ship Shoal Inlet crosses the 3- Weak Links located at Odiornes Point, New nautical mile (5.6-km) state waters line, The ALWTRT recommended that, for Hampshire. which is not consistent with the 72 consistency, NMFS should change all The exempted waters for COLREGS lines. Under this final rule, headings for weak links in the ALWTRP Massachusetts will continue to include NMFS clarifies that the shoreline of regulations from ‘‘Weak Links on all state waters landward of the first bridge Maryland and Virginia would be Buoy Lines,’’ ‘‘Buoy Weak Links,’’ and over any embayment, harbor, or inlet. exempted landward of the 72 COLREGS ‘‘Buoy Line Weak Links’’ to simply See the Changes From the Proposed lines. This includes using the 72 ‘‘Weak Links.’’ Under the ALWTRP final Rule section (3) below for further COLREGS line to exempt Chesapeake rule, ‘‘Buoy Line Weak Links,’’ or ‘‘Net information on the rationale for the final Bay. This is a line drawn from Cape Panel Weak Links’’ will be used for

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clarification. NMFS also clarifies that m), or at least every 25 fathoms (150 ft Anchoring Clarification weak links must be placed on all or 45.7 m) along the floatline for longer This final rule amends the regulatory floatation and/or weighted devices, etc. panels.’’ This final rule also amends the text to clarify how to comply with the that are attached to the buoy line, and requirements for the placement of weak holding power of a 22-lb (10.0-kg) not just the main buoy. This final rule links in the SAM areas and other Danforth-style anchoring requirement adds to the regulatory text that weak applicable areas where more than one for anchored gillnet fishing gear in the links must be designed such that the weak link is required for gillnet net Northeast, including SAM areas, and bitter end (the loose end of the line that panels of lengths up to and including 50 Mid/South Atlantic (that is not returned detaches from the weak link) of the line fathoms, (300 ft or 91.4 m) as well as to port with the vessel), as well as is clean and free of any knots when the those greater than 50 fathoms (300 ft or gillnet gear in the Southeast that is not link breaks, and that splices are not 91.4 m). Additionally, this final rule returned to port with the vessel. considered to be knots for the purposes specifies two configuration options for of this provision. The final rule clarifies gillnet net panel weak links for SAM Clarification that gillnets, traps/pots, anchors, and anchored gillnet fisheries in the This final rule clarifies that for gillnet leadline woven into the buoy line are Northeast (effective April 7, 2008, and trap/pot fisheries, the Stellwagen not considered weighted devices including SAM areas April 7, 2008, and Bank/Jeffreys Ledge Restricted Area attached to the buoy line. Therefore, Mid/South Atlantic (that is not returned overlaps with SAM West boundaries. under this final rule, when referring to to port with the vessel), as well as Thus, the Stellwagen Bank/Jeffreys the techniques for meeting the weak gillnet fisheries in the Southeast that are Ledge Restricted Area will be added to link requirements, the wording will not returned to port with the vessel the list of ALWTRP management areas read, ‘‘All buoys, flotation devices and/ (effective April 7, 2008). See the under the SAM section of the or weights (except traps/pots [or requirements for anchored gillnets in regulations. gillnets], anchors, and leadline woven the Other Northeast Gillnet Waters Terminology into the buoy line), such as surface section of this rule for the specifics on buoys, high flyers, sub-surface buoys, these configurations for gillnet net panel For consistency, in the ‘‘Other toggles, window weights, etc. must be weak links. The same configuration Provisions’’ section of the ALWTRP attached to the buoy line with a weak option would be required for all gillnet regulations, this final rule will change link placed as close to each individual net panels in a string. the term ‘‘Cape Cod Bay Critical buoy, flotation device and/or weight as Habitat’’ to ‘‘Cape Cod Bay Restricted operationally feasible and that meets the Groundlines Area.’’ In addition, this final rule will following specifications’’. This final rule clarifies that fishermen change the name of the ‘‘Southeast U.S. In a final rule published on January may use sinking and/or neutrally Restricted Area’’ to ‘‘Southern U.S. 10, 2002, the use of line 7⁄16 inch (1.11 buoyant line for their groundlines and Restricted Area (N and S)’’ (using 29°00′ cm) in diameter or less for all buoy lines buoy lines. Under this final rule, from N. lat. as the dividing line for ‘‘N’’ and was removed as an option from the January 1 through May 15 fishermen ‘‘S’’), and change the name of the ALWTRP’s Take Reduction Technology will be allowed to use sinking and/or Southeast U.S. Observer Area to the Lists, as the breaking strength of 7⁄16 neutrally buoyant groundlines in the ‘‘Southeast U.S. Monitoring Area.’’ inch (1.11 cm) line can vary Cape Cod Bay Restricted Area. Definitions dramatically (67 FR 1300, January 10, Similarly, for the SAM gear 2002). Therefore, because the diameter modifications, this final rule will allow The final rule adds definitions to of line is not appropriate to use for risk the use of sinking and/or neutrally § 229.2 for ‘‘bitter end’’ and ‘‘bottom reduction, NMFS will also change the buoyant groundlines. portion of the line.’’ The ‘‘bottom text that describes the list of approved Where sinking and/or neutrally portion of the line’’ definition is revised weak links. Specifically, the regulatory buoyant line is required for groundlines, to clarify the regulatory requirements for text referring to ‘‘rope of appropriate this final rule prohibits the attachment allowing, where applicable, floating line diameter’’ will be changed to ‘‘rope of of flotation devices, such as buoys and in a section of the buoy line not to appropriate breaking strength’’. toggles. This clarifies the prohibition on exceed one-third the overall length of Where the gear modification floating groundlines by expanding the the buoy line. requirements are referred to, this final prohibition to the attachment of any The final rule also revises the terms rule includes reference to a brochure devices that cause groundlines to float ‘‘Lobster trap’’ and ‘‘Lobster trap trawl’’ that describes techniques for complying into the , to reduce the to ‘‘Trap/pot’’ and ‘‘Trap/pot trawl’’ to with these requirements and provide risk of entangling large whales. reflect the broader scope of the information about how to obtain a copy. ALWTRP once the new trap/pot This final rule amends the current Other Regulatory Language Changes fisheries are included under the regulatory text describing the placement The following changes to the current management regime. These definitions of weak links in the floatline of gillnet ALWTRP regulations are revised to will apply to the trap/pot fisheries that net panels. Specifically, the text will be improve consistency and clarity will be regulated under the ALWTRP. modified to change the requirements for (effective April 7, 2008). the placement of one weak link in Prohibitions gillnet net panels that are shorter than Gillnet Take Reduction Technology List The final rule revises the language in 50 fathoms (300 ft or 91.4 m). This final In 2002, NMFS published a final rule § 229.3 and § 229.32 regarding the rule modifies the requirements in the (67 FR 1300, January 10, 2002) that activities prohibited under the Mid/South Atlantic Gillnet Waters (for replaced the Gillnet Take Reduction ALWTRP. Specifically, in paragraphs anchored gillnets) and adds Technology List with specific (h) through (l) of § 229.3, and where requirements for the Other Southeast requirements for gillnet gear in the Mid- applicable in § 229.32, NMFS clarifies Gillnet Waters as follows: ‘‘Weak links Atlantic; however, the list was that where it is prohibited to fish with must be placed in the center of the inadvertantly left in the regulations. certain gear types, it is also prohibited floatline of each gillnet net panel up to This final rule will delete the Gillnet to have the gear available for immediate and including 50 fathoms (300 ft or 91.4 Take Reduction Technology List. use. This added language is intended to

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clarify the activities prohibited under hearings held in Virginia, North according to region, gear type, or other the ALWTRP and improve enforcement. Carolina, New Jersey, Maryland, affiliation. Also, the phrase ‘‘lobster trap’’ has been Florida, Massachusetts, Rhode Island, Comment 3: Several comments were changed to ‘‘trap/pot.’’ and Maine. NMFS received 37 letters received in support of, as well as in from commenters on the proposed rule opposition to, the proposed elimination Criteria for Establishing a Density via mail, fax, or email. The comments of the Lobster Take Reduction Standard for Neutrally Buoyant and are summarized and grouped below by Technology List in Northern Inshore Sinking Line and Procedure for major subject headings. NMFS response waters. Determining the Specific Gravity of follows each comment. NMFS received Response: As proposed, NMFS has Line comments on FEIS technical changes eliminated the Lobster Take Reduction In response to requests from the that were not substantive, and made Technology List in Northern Inshore fishing and line manufacturers changes to the FEIS as appropriate. waters and other areas. Eliminating the for a clearer definition of neutrally These technical comments are not Lobster Take Reduction Technology List buoyant and sinking line, NMFS has listed. in Northern Inshore waters will enable developed criteria for establishing a NMFS to utilize broad-based density standard for neutrally buoyant General Comments management measures in the Inshore and sinking line and used these criteria Comment 1: Some commenters asked waters. However, NMFS acknowledges to develop definitions. In addition, for a more balanced representation of that the elimination of the Technology NMFS finalizes a procedure for stakeholders on the ALWTRT. List does not preclude NMFS from using assessing the specific gravity of line, Specifically, commenters believed that a similar management scheme in the which NMFS will use in the future to there should be more seats for future if warranted. determine whether a manufactured line conservationists on the ALWTRT. Comment 4: Two commenters meets the accepted density standard. Response: The ALWTRT is composed requested that all information used in NMFS’ criteria for establishing the of Federal agencies, each coastal state formulating proposed alternatives and density standard and procedure to that has fisheries that interact with large effectiveness of existing programs be determine specific gravity of line are whale species or stocks protected under provided to the public. NMFS should included in the FEIS and available to the ALWTRP, Regional Fishery develop and implement a statistically the public upon request (see ADDRESSES Management Councils, interstate reliable methodology for measuring and for contact information). fisheries commissions, academic and reporting serious injury and mortality This final rule amends the definitions scientific organizations, environmental rates of all species of marine mammals, of ‘‘Neutrally buoyant line’’ and groups, and all commercial fisheries as required by the MMPA. ‘‘Sinking line’’ and clarifies each groups and gear types which Response: In support of the proposed definition in relation to groundlines and incidentally take large whale species or action, NMFS prepared a DEIS. In buoy lines. Under this final rule, stocks. The Marine Mammal Protection accordance with the National neutrally buoyant and sinking line will Act (MMPA) states that take reduction Environmental Policy Act (NEPA), the share the same definition; however, a teams shall, to the maximum extent DEIS disclosed the purpose and need for distinction will be made to clarify that practicable, consist of an equitable the action; a description of the proposed sinking and/or neutrally buoyant balance among representatives of alternatives, including a No Action groundline could not float in the water resource user interests and nonuser Alternative; a description of the affected column. Therefore, in this final rule, the interests. The MMPA does not provide environment; and a description of the current definition of ‘‘neutrally buoyant a fixed number or percentage for each environmental consequences of each line’’ is amended to mean, ‘‘for both stakeholder group. NMFS believes that alternative including any adverse groundlines and buoy lines, line that it has an adequate representation of environmental effects that will be has a specific gravity of 1.030 or greater, stakeholders including conservationists. unavoidable if the proposed action is and, for groundlines only, does not float Comment 2: One commenter implemented. As required by NEPA, at any point in the water column (See suggested that better results would be NMFS made all of the information and also Sinking line).’’ NMFS will keep the produced by the ALWTRT if issues were analysis contained in the DEIS available ‘‘neutrally buoyant’’ and ‘‘sinking line’’ addressed regionally. to the public for an 81-day written terms based on industry’s comment that Response: At its 2004 meeting, NMFS comment period and conducted 13 these are familiar terms that have been provided detailed information on public hearings from Maine to Florida to used for a number of years. Accordingly, organizational issues specific to the receive oral testimony regarding this the current definition of ‘‘Sinking line’’ ALWTRT. NMFS presented several action and its supporting information is amended to mean, ‘‘for both options for restructuring the ALWTRT and analysis. All comments received groundlines and buoy lines, line that and the pros and cons of each option. during the public comment period and has a specific gravity of 1.030 or greater, One option included a regional public hearings were considered in the and, for groundlines only, does not float component whereby the ALWTRT FEIS and final rule. at any point in the water column (See would split into two regional teams NMFS has developed protocols for also Neutrally buoyant line).’’ (Northeast and Mid/South Atlantic). determining large whale serious injuries However, the ALWTRT did not develop and human-caused mortalities. Such Comments and Responses a consensus recommendation on information is contained in mortality NMFS received 81 letters from formally dividing the ALWTRT into and serious injury determinations commenters on the Draft Environmental separate teams by region or other issued by the Northeast Fisheries Impact Statement (DEIS) via letter, fax, affiliation. Currently, the ALWTRT is Science Center (NEFSC). Human-caused or email. Additionally, approximately continuing to meet as a full team, but mortality and serious injury rates 25,000 of one type of form letter and 73 NMFS has allocated resources to presented in these reports represent the of another type of form letter of similar conduct small scale regional sub-group minimum levels of impact to Atlantic content were received on the DEIS via meetings when necessary. In addition, large whale stocks from 1999–2003 letter and email. NMFS also solicited NMFS has allocated time in its full (Waring et al., 2006). Confirmed human- comments on the DEIS during 13 public ALWTRT meetings for smaller groups caused mortalities and serious injury

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

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

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

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

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

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

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Response: NMFS appreciates the the public sector cost of administering that has been determined to be from the support and assistance being offered by and enforcing the proposed rules; such sink gillnet or pot/trap gear, NMFS must this commenter. Sea-sampling observers an analysis is not required in an EIS. take additional action to protect right do collect large whale sightings data, Alternatively, the commenter may be whales. Evaluation of implementation however, this is one of many data referring to the economic impact of the and effectiveness of existing measures is collection responsibilities. If a right proposed alternatives on the fishing ongoing; however, since serious injury whale is sighted, the sighting is entered industry, a subject addressed and mortality of large whales in directly into the SAS Right Whale extensively in the EIS. Chapter 6 commercial fisheries exceeds PBR, Reporting System. However, broad-scale estimates per-vessel and industry-wide NMFS needs to take additional action in surveys are the best source of incremental costs for affected fisheries. response to its requirements under the information on the spatial and temporal Chapter 7 considers the socioeconomic MMPA. distribution of large whales. impact of the alternatives, i.e., what Comment 49: Some commenters Comment 44: One commenter said geographic areas are most affected and stated that until research shows how, that humpback whales can be will the regulations affect the economic when, and where whales become consistently found in the Gulf of Maine viability of fishing operations. entangled in fishing gear, none of the during a longer period (April– Furthermore, the regulatory flexibility alternatives should be implemented. December) than indicated in the DEIS. analysis (Chapter 11) focuses on the One commenter believes research is The commenter also believed that data implications of the rules for small needed regarding where and when presented were obtained by analysis of business. whales are most at risk. Otherwise, the a right whale sightings database with commenter believes a new management opportunistic data for other large whale General Comments on Proposed plan may be ineffective to protect species. The commenter said that Alternatives whales, while also causing economic humpback whales have different Comment 47: NMFS received many hardship to fishermen. The commenter ecological characteristics than right comments stating that none of the believes new rules must be based on the whales and do not use the same feeding proposed alternatives would sufficiently most recent data and build in flexibility habitats concurrently. The commenter protect large whales for several reasons to generate new data for consideration. believed that opportunistic sightings that include: (1) The proposed Response: The FEIS notes that data may not paint a representative regulations will not achieve PBR; (2) the entanglements of large whales are still picture of the spatial and temporal proposed actions may not achieve the occurring in sink gillnet and trap/pot distribution of humpback whales. goals of the MMPA; and (3) proposed gear and highlights the legal mandates Response: NMFS has modified the regulations need to be strengthened, as of the MMPA and ESA that NMFS is FEIS to reflect this comment. However, it is NMFS’ mandate under the ESA. required to follow. Based on the NMFS did not analyze only Response: NMFS disagrees with the continued serious injury and mortality opportunistic sightings data when commenters’ assessment that none of of large whales due to entanglement in analyzing the distribution of other large the proposed alternatives would these gear types, NMFS must take action whale species. Systemic sightings data sufficiently protect large whales. NMFS to provide more protection to large (e.g., NMFS survey data), are believes that the EIS represents a whales. Although NMFS acknowledges incorporated into the NARWC Database comprehensive suite of alternatives to a need for more scientific information, (curated by URI). These aerial and amend the ALWTRP as well as a NMFS is required to take action based vessel surveys are conducted thorough analysis of the impacts of the on the best information that is available throughout the Atlantic coast, and proposed alternatives on the human when developing the EIS. As new although many surveys are focused on environment. NMFS worked with the information becomes available regarding right whale documentation, many other ALWTRT to help evaluate the ALWTRP large whales, entanglements, or surveys are conducted to sight and and discuss additional modifications commercial fishing gear modifications, record the location of other large whale necessary to meet the goals of the NMFS will share this information with species or marine mammals. MMPA and ESA. the ALWTRT to determine if additional Comment 45: One commenter Comment 48: Numerous commenters changes to the ALWTRP are warranted. believes whales that get entangled are stated that more time is needed to Comment 50: Several commenters sick, which inhibits their ability to evaluate whether the current plan is urged NMFS to develop whale rules navigate around gear. The commenter working. Many believed that other with as much flexibility as possible, further believes whales get entangled in ALWTRP measures (i.e., weak links, allowing for to be ghost gear (e.g., trailing lines and critical habitat closures, buoy implemented as they are developed. refuse). modifications, and limited time-area One commenter believes that as NMFS Response: Currently there is no data closures) should be properly evaluated constructs the final rule for this Plan, to support this hypothesis. Scarification to determine their effectiveness before the agency should adopt a flexible and analyses indicate a large percentage of implementing a prohibition on floating adaptive approach, and continue whales interact with fishing gear, with groundlines. refining the regulations on a region-by- most surviving these encounters. Also, Response: Since right, humpback, and region basis. The commenter also at this time, NMFS cannot state fin whales are listed as endangered believes that, considering our limited conclusively that whales are becoming species under the ESA, they are understanding of large whale ecology entangled in ghost gear. considered strategic stocks under the across diverse habitats, as well as the Comment 46: One commenter wanted MMPA. In response to its obligations variability among the dozens of different to know if the economics and under the MMPA, NMFS established the fixed gear fisheries along the Atlantic technological feasibility of ALWTRT to develop a plan for reducing seaboard, the Plan must be flexible and implementation had been considered. the incidental take of large whales in responsive to changing ecological and Response: The specific meaning of the commercial fisheries to below the PBR. economic conditions over time. ‘‘economics and technological PBR for right whales is set at zero. Response: NMFS acknowledges this feasibility of implementation’’ is Consequently, if any right whale is very important comment and will unclear. The commenter may refer to entangled in commercial fishing gear continue to work with the ALWTRT and

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with its legal mandates and harm to large whales by reducing the anchored gillnets are not used by requirements to help facilitate better likelihood of entanglement and/or Florida fisheries; (4) sinking or neutrally flexibility within the ALWTRP reducing the severity of an buoyant line is already used on buoys; regulations. NMFS has developed and entanglement should one occur. NMFS and (5) gillnets are always tended (i.e., implemented flexible regulations in the seeks to achieve these objectives within eyesight of fishermen). past, but learned that the mandates and through a combination of two general Response: NMFS acknowledges that requirements that NMFS must follow measures: (1) Gear modification some gillnet fisheries conducted off the limited NMFS’ flexibility and ability to requirements; and (2) restrictions on coast of Florida may already use gear react quickly. In addition, in many fishing activity at specified locations that is more restrictive than that gear instances, NMFS is also limited by the and times. Chapter 5 of the EIS proposed in the EIS. However, NMFS lack of information available to examines the impact of these measures believes that there are several new and implement flexible regulations. NMFS on whale entanglement risks. emerging fisheries that do not prescribe will continue to explore the concept of Comment 53: Several commenters to the gear requirements noted by the flexible rulemaking with the ALWTRT. disagreed with NMFS’ conclusion that commenter. This final rule will regulate Comment 51: One commenter stated gear modifications were necessary for several new fisheries under the that the 2001 biological opinions on the tended and/or actively fished net ALWTRP through the Category I and II , Multispecies, Spiny fisheries. annual list of fisheries process Dogfish, and Monkfish FMPs make clear Response: NMFS specifically implemented under the MMPA. The that unless the agency identifies an requested public comment on whether final rule provides protection to large alternative that would eliminate gear modifications were warranted for whales from these new and emerging entanglement and ship strikes, the gear that is tended and/or actively fisheries and, at the same time, ensures alternative is unlawful. fished. NMFS is not implementing the that the current fisheries have an Response: The 2001 Biological proposed weak link requirement for established baseline for large whale Opinion included an RPA composed of tended driftnet gear at this time due to protection. several measures that were subsequently potential safety issues that were raised. Comment 56: One commenter incorporated into the ALWTRP. The Thus, NMFS believes further research supports the implementation of a pre- Biological Opinion also included on this fishery, and specifically testing 1997 status quo. criteria to monitor the RPA’s weak links in drift gillnet gear, is Response: A pre-1997 status quo effectiveness. The RPA and monitoring needed before weak links should be option was not analyzed in the DEIS. criteria are based solely on right whale required. Section 118 of the MMPA requires that entanglements with commercial fishing Comment 54: One commenter NMFS reduce of strategic gear, not ship strikes. Ship strikes are suggested the alternatives should be marine mammal stocks incidentally evaluated through a separate action in harmonized with other federal mammal taken during commercial fishing support of the implementation of the protection plans (e.g., the bottlenose operations. The level of documented national right whale ship strike strategy. dolphin protection plan) to prevent the serious injury and mortality of right, At that time, the 2001 Biological possibility of creating several plans each humpback, and fin whales due to Opinion concluded that the RPA was with their own unique requirements. entanglement in fishing gear required sufficient to allow the commercial Response: Chapter 9 of the EIS NMFS to convene a take reduction team lobster trap/pot fishery to continue. includes a cumulative effects analysis and develop a take reduction plan to However, since that time NMFS has that examined the impacts of this action protect these whales. This final rule reinitiated consultation on the in conjunction with other factors that implements modifications to the continued implementation of the affect the physical, biological, and ALWTRP, which are necessary because American lobster fishery in federal socioeconomic resource components of NMFS has evidence that serious injury waters based on new information on the the affected environment. The purpose and mortality in commercial fishing effects of the fishery on right whales. of the cumulative effects analysis is to gear is still occurring at unsustainable This consultation is ongoing. NMFS will ensure that Federal decisions consider levels. consider changes to the ALWTRP the full range of an action’s during consultation on the American consequences, incorporating this Comments Specific to Each Alternative lobster fishery. information into the planning process. Comment 57: NMFS received Comment 52: One commenter asked The cumulative effects analysis studies numerous comments in support of how many lethal takes are expected to the impacts of the regulatory Alternative 1. Commenters believed occur under the status quo and how alternatives to other federal marine NMFS has not provided data to show many lethal takes are expected to occur mammal take reduction plans and there is a problem that warrants under each alternative. plans within the amending the current ALWTRP. Other Response: NMFS cannot predict how context of other past, present, and commenters thought existing many lethal takes are expected to occur reasonably foreseeable future actions. regulations have not been given enough under each alternative. The evaluation Comment 55: Several commenters time to work. One commenter also said of the impact of regulatory changes on believed that the proposed rule should that economically, in today’s dollars, it whale entanglement risks is largely not apply to Florida gillnet fisheries for would probably cost $8,000 to replace qualitative. This approach is necessary several reasons: (1) Some non-shark groundline as proposed in the other because models that would enable fisheries currently use rope that has a alternatives, and the way that the NMFS to conduct a rigorous breaking point of 800 lb (362.9 kg), well material is increasing in price, costs quantitative assessment of such risks do below the 1,100-lb (499.0-g) weak link could be greater than $10,000 by 2008. not exist. The known threat that breaking point indicated in the take Response: NEPA requires NMFS to commercial fishing poses to large reduction plan; (2) night fishing is analyze a no action alternative whales is the risk of incidental allowed only if strike nets are deployed (Alternative 1). NMFS did not choose to entanglement in commercial fishing (strike nets are set in a circle and sink finalize this alternative because it does gear. The regulatory changes under two to five feet (0.6 to 1.5 m) below not adequately protect large whales, and consideration are designed to reduce water; the net is then retrieved); (3) therefore, does not satisfy the

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

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

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

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Island Sound to run from Watch Hill, Response: LMA 2 is located in Response: The alternatives provided RI, to Montauk Point, NY. Southern New England nearshore in the DEIS and proposed rule did not Comment 79: One commenter waters, south of Cape Cod and off the include a proposal to exempt inshore of recommended that NMFS check the southern coast of Rhode Island. Despite the 50-fathom (91.4-m or 300-ft) curve to accuracy of Exhibit 6H–1. The the fact that a DAM may not have been explore low profile groundline. commenter stated that Connecticut triggered in this area, NMFS sightings Comment 83: Several commenters fishermen operate in waters other than data indicate that right whales are believe that NMFS should analyze the Connecticut waters; they report occurring within LMA 2. Although 50-fathom (91.4 m or 300 ft) curve in commercial fishing activities outside of sightings may not be numerous, right Maine as a line for delineating gear Connecticut waters to the CTDEP and whales have been seen in these waters, modification requirements (i.e., exempt they fish in the ‘‘Race’’ under New York including areas outside of Long Island inshore of 50 fathoms (91.4 m or 300 non-resident commercial lobster Sound and Block Island. It should also ft)). They believe this may protect right licenses. The commenter believes the be noted that DAM zones are a whales going to and from the Bay of assumption in Exhibit 6H–1, that vessel regulatory measure only intended for Fundy while allowing operationally activity for state-permitted vessels is Northern right whales. Thus, a lack in realistic risk reduction gear equally distributed only within state DAM density is not a reliable indicator modifications. waters, is not accurate. Also, the of whale distribution of other species, in Response: NMFS sightings data commenter believes Exhibit 6G–2 is not general. Other large whale species confirms the frequent occurrence of accurate because, although there are covered under the ALWTRP that would right whales in waters landward of the fishermen who operate in Connecticut not trigger a DAM are known to occur 50-fathom (91.4-m or 300-ft) curve (e.g., waters inside Long Island Sound, which in this area. southern Maine), thus it would not be is exempted, there are also vessels that Comment 81: One commenter an appropriate exemption line. fish in the ‘‘Race’’ and are affected by believed that NMFS does not have a ALWTRP requirements. plan to deal with gear in exempted areas Comments on Proposed Exemption Response: NMFS recognizes that if and when right whales are reported in Lines in Maine Connecticut lobstermen fish in New those exempted waters. The commenter Comment 84: One commenter said York State waters. The analysis of other stated that since 2002 it does seem that that if there is going to be an exemption trap/pot and gillnet vessels applies a there have been a lot more of what is line set, it should be based off LMA 1, broad assessment of licenses issued by considered to be out of season/out of New York that likely includes licenses which already has a line 40 miles (64.4 habitat sightings and there is no way for to out-of-state vessels. NMFS km) out. The commenter suggested NMFS to deal with them. acknowledges that Connecticut-based using this line until research shows a vessels that purchase trap tags from Response: The changes to the problem inside the line. The commenter Connecticut may not be accounted for exemption lines have been developed in said the problem is not in the nearshore under Alternatives 2 through 6 Draft (in response to requests from state fishery fishery where 95-percent of fishermen the DEIS). However, under the preferred management agencies, as well as others, in the State of Maine are fishing. alternative, Alternative 6 Final, the and are designed to ensure that the Response: In developing potential portion of waters referred to in this ALWTRP does not unnecessarily extend changes to state exempted waters, comment (the ‘‘Race’’) would be commercial fishing regulations to waters NMFS reviewed the NARW Sightings exempted from the proposed regulatory in which endangered or protected large Database from 1960 through mid- requirements. As a result, under the whales have been rarely, if ever, September 2005 containing dedicated preferred alternative, Connecticut-based observed and there is low risk. In survey effort and opportunistic sightings vessels operating in these waters would developing the revised exempted areas, data, which is supplemented by not be affected by the regulations. The NMFS reviewed the available sightings additional data on humpback and fin EIS acknowledges that fishing activity is information (including information whale sightings, sightings data collected not likely to be equally distributed since 2002) and right whale tracking from 2002 through 2006 through the throughout state waters. Data on the information where available, and NEFSC systematic aerial surveys and location of state-permitted vessel determined that the potential for the Northeast U.S. Right Whale SAS, as activity are unavailable; in lieu of better entanglement of whales is low in these well as a large whale sightings database data, the analysis employs assumptions areas so that no changes to the compiled by Maine DMR, for data on that provide a reasonable basis for exemption lines are needed, other than right, fin, and humpback whale estimating the number of affected those modifications noted in this final sightings from 1960 to 2002. The areas vessels. To the extent that fishing rule. NMFS will continue to monitor all that would be newly exempted from activity is disproportionately exempted areas, and encourage states to ALWTRP requirements contained in concentrated in waters exempted from develop contingency plans in the event this final rule include only those in the requirements, fewer vessels than a large whale is sighted in such areas. which whales are only occasionally estimated in the EIS would be affected. Should new information become found and are at low risk, as suggested Conversely, to the extent that activity is available that indicates that a change in both by NMFS’ review of the data and disproportionately concentrated outside the exemption areas is warranted, its current understanding of whale of the exempted waters, more vessels NMFS will share the information with behavior. NMFS does not believe that than estimated in the EIS would be the ALWTRT and will take appropriate regulating the waters that will be affected. action. exempted from the ALWTRP would Comment 80: One commenter wants Comment 82: One commenter have a significant benefit to large LMA 2 to be exempt from any new believes that the proposal to exempt whales. The sightings data do not regulations as no whales are seen in that inshore of the 50-fathom (91.4-m or 300- support exempting state waters out to 40 area. Another commenter said that there ft) curve to explore low profile nautical miles (64.4 km). Exempting this is no Dynamic Area Management (DAM) groundline is inappropriate. The large of an area from ALWTRP density in Area 2, thus, the area should commenter states that this proposal regulations would likely have a be exempt. would put whales at risk. significant, direct effect on large whales.

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

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than estimated in the EIS would be April 1 through June 30). Additional closures are not an economically affected. closures to fisheries operating in Critical feasible option for commercial Habitat areas were not within the scope fishermen given the uncertainty of right Comments on Right Whale Critical of the DEIS. whale distribution patterns. Despite Habitat The preferred alternative in the FEIS increased aerial survey effort, there is Comment 91: Due to limitations of takes a broad-based management still a high degree of variability available technology, particularly for approach by expanding the more regarding right whale distribution. vertical lines, two commenters protective gear modifications for lobster Generally, NMFS has a good recommended that NMFS adopt in Cape Cod Bay Critical Habitat, and understanding of when and where right seasonal closures to prohibit all gillnet lobster and gillnet gear for the DAM gear whales will be in an area, but the size and lobster gear in all designated right modifications coast-wide. Additionally, of the area and timing of when right whale critical habitats during times as discussed in the FEIS, NMFS believes whales enter these areas vary year to when whales are known to congregate that there is a need to re-evaluate year. Fishermen could be closed out of in those areas until gear modifications whether critical habitat boundaries a given area to protect right whales, but that give reasonable assurance to should be modified, and revisit the the whales might not yet be in that area. prevent entanglement are developed. relationship between critical habitat and Similarly, the shift in effort to other Two commenters urged NMFS to the ALWTRP before further changing areas may also be to areas where right consider revising right whale critical current requirements in these areas. whales are present. habitat. One commenter suggested NMFS is currently taking a number of Second, total closures refocus fishing NMFS revise right whale critical habitat steps prior to deciding whether to efforts to other areas and may result in to include both SAM areas as well as the propose any revisions to critical habitat, an edge effect where gear is DAM areas that had been implemented including an analysis of the following: concentrated around the periphery of a through 2004. The other commenter (1) Southeast U.S. right whale closed area, posing a greater risk of suggested NMFS analyze all available distribution data in relation to entanglement. NMFS believes that the right whale sightings data to reassess bathymetry and sea surface temperature gear modifications required in this final appropriate critical habitat boundaries derived from Advanced Very High rule prevent entanglements where that encompass high-use feeding and Resolution Radiometer imagery; and (2) possible and will alleviate the threat of calving habitat. characterizing the spatial and temporal serious injury or mortality. Response: NMFS did consider distribution of zooplankton in the Comment 93: Several commenters adopting new seasonal closures in Northeast U.S. NMFS hopes to begin stated that closures may not be very critical habitat areas in response to discussions with the ALWTRT effective in light of right whale comments provided during the scoping regarding these critical habitat issues movements as indicated by satellite process for the DEIS. This issue was and their relationship to the ALWTRP tracking data. Commenters state that included in the DEIS summary of in 2008. closures may shift gear and effort to the written scoping comments received. The edges of these areas (i.e., creating a issue is addressed in the section of the Comments on Closed Areas ‘‘wall’’ of gear), thus increasing the DEIS that lists the alternatives Comment 92: Several commenters entanglement risk for whales and considered and rationale for rejection urged NMFS to continue implementing placing gear where the whales feed and (e.g., implement a gillnet closure in the closures given the uncertainty of gear travel. Great South Channel Sliver Area from modification effectiveness and until Response: NMFS believes that the April 1 through June 30), as well as in proven gear modifications are gear modifications required in this final the section that describes the implemented. One commenter believes rule prevent entanglements where alternatives considered (e.g., gillnet closures are needed for high-risk areas possible and will alleviate the threat of fisheries not currently regulated would during peak right whale occurrence (this serious injury or mortality. However, if be required to abide by current is in addition to critical habitat areas) future serious injury and mortalities due restrictions which include closures). In and suggests removing gear from to entanglements are proven to have the FEIS, NMFS included additional feeding/calving areas. In New England, occurred in high risk areas where gear language to clarify that this comment the commenter suggested closing Cape modifications are in effect, or in critical was considered but rejected. Cod Bay to trap/pot fishing during peak habitat or restricted areas during the There are currently closures in place months based on the best available data relative restricted periods from to protect critical habitat. Contrary to at the time (e.g., right whale surveys, allowable gear, NMFS will consider the sentiments expressed by the prey abundance). Additionally, the closures for reducing the serious injury commenters, NMFS is not relieving commenter suggested closures in the and mortality of large whales due to current restrictions in critical habitat Mid-Atlantic during migration (e.g., entanglements by requiring the areas. This is consistent with the from the third week of February to the complete removal of all trap/pot and/or Conservationist members’ proposal third week of March and mid-December gillnet gear. Absent such circumstances, provided at the 2003 ALWTRT meeting to mid-January). NMFS will continue to work with the that, amongst other measures, critical Response: NMFS considered the ALWTRT to monitor and modify fishing habitat restrictions remain in place until concept of a total closure to trap/pot and gear to adequately reduce the risk of vertical and groundline risks are gillnet gear in unique ‘‘high risk’’ areas serious injury and mortality of large reduced. In fact, Alternatives 2 through and determined that gear modifications whales. 6 in the DEIS considered that any gillnet developed through the ALWTRT Comment 94: One commenter and trap/pot fishery not regulated in process would result in more requested that NMFS analyze the these areas be required to abide by the conservation benefits to the animals. existing Western Gulf of Maine Closure current Critical Habitat restrictions (e.g., The basis for this determination is two- that encompasses most of Jeffreys Ledge gillnet closure in Cape Cod Bay Critical fold. First, comments received from for potential inclusion as a year round Habitat Area from January 1 through some ALWTRT members and the modified gear area. May 15; trap/pot closure in Great South general public during the scoping and Response: The Western Gulf of Maine Channel Critical Habitat Area from public hearing meetings stated that Closure and Jeffreys Ledge area are

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included in ALWTRP management north of this line for non-shark gear and NMFS is implementing a modified areas. Modifications to these this should be recognized in the name change more similar to the status management areas were considered in regulations. quo. For regulated waters west of 80°00′ Alternatives 2, 3, 4, 5, and 6 in the DEIS. Response: NMFS agrees with the W. long., NMFS is keeping the The final rule requires year-round gear commenter and is aware that the ‘‘Southeast U.S. Restricted Area’’ modifications in and around Jeffreys Southeast U.S. Atlantic shark gillnet terminology and adding a ‘‘N’’ or ‘‘S’’ to Ledge. See Chapter 3 section 3.1.7 of the fishery is active primarily south of denote North or South of 29°00′ N. FEIS or the ‘‘Changes to the ALWTRP 29°00′ N. lat. during the restricted NMFS is changing ‘‘Southeast U.S. for Gillnet Gear Requirements’’ section period. Furthermore, NMFS is aware Observer Area’’ to ‘‘Southeast U.S. of this preamble for a complete that the Southeast Atlantic gillnet Monitoring Area’’ due to the Vessel description of the gear modifications fishery has been active north and south Monitoring System (VMS) being required for this area. of 29°00′ N. lat. during the restricted substituted for 100-percent observer Comment 95: Several commenters period and that, in general, fishermen coverage in the Southeastern U.S. said that they supported changing the are targeting Spanish mackerel with Atlantic shark gillnet fishery. restricted period for the Southeast U.S. runaround nets south of 29°00′ N. lat. Restricted Area south of 29°00′ N. lat. and have used sink gillnets to target Comments on SAM and DAM from November 15–March 31 to whiting north of 29°00′ N. lat. For this Comment 102: Several commenters December 1–March 31. reason, and due to the seasonal north- support the elimination of the SAM Response: Recent data indicate that south movements of right whales, program stating that the effectiveness right whales are rarely sighted south of NMFS has divided the Southeast U.S. and enforceability of SAM is 29°00′ N. lat. in November or April. Restricted Area into two separate controversial. Consequently, NMFS has determined management areas (N and S) that are Response: NMFS disagrees with the that a restricted period beginning on divided at 29°00′ N. lat. commenters’ statements that the SAM December 1 and ending on March 31 is Comment 99: One commenter said program is being eliminated because of appropriate for the Southeast Restricted that the restricted period in the controversiality regarding its Area N. Southeast should be changed from effectiveness and enforceability. This Comment 96: One commenter said March 31 to March 25 or earlier south final rule implements an expansion of that south of 29°00′ N. the area should of the Cape Canaveral and north of the SAM program to bridge the gap be opened due to a lack of whales in the Sebastian Inlet. The commenter also between the publication of the final rule area. One commenter said that NMFS said that if whales are not present in the and the effectiveness of the floating should consider an area only 6 miles area, it should be opened. groundline prohibition 12 months after (11.1 km) from shore. Response: NMFS has considered this publication of this final rule. NMFS has Response: Aerial survey and other comment. However, sightings data from no evidence that the gear modifications sightings data indicate that right whales aerial surveys indicate that March 31 is required under the SAM program have routinely move south of 29°00′ N., an appropriate temporal boundary for resulted in an entanglement, serious particularly during January and this area. injury, or mortality to large whales. February. Reviewing sightings data may Comment 100: One commenter NMFS believes that the entanglements suggest most/more whales occur within believed that extending the current that occurred since the 2002 a few miles of shore; however, it is eastern boundary to the EEZ line for implementation of the SAM and DAM important to note that survey effort is Florida fisheries should only occur if programs are the result of gear biased toward shore (see Comment 39) NMFS has precise data about whale interactions with large whales in areas and thus, whales farther from shore are migratory patterns and routes. outside of the SAM and DAM programs. likely undercounted. Response: This final rule implements In fact, this final rule will implement Comment 97: One commenter a broad-based approach to the ALWTRP many of the SAM gear modifications on suggested that 26°46.5′ N. should be the regulations, and focuses on the times a year-round or seasonal basis southern boundary for Other Southeast and areas where large whales are likely throughout the Atlantic coast. The gillnet waters. to occur. NMFS believes that the elimination of the SAM program 12 Response: NMFS believes that 27°51′ boundaries of management areas, as months after publication of the final N. is the appropriate southern boundary presented in this final rule, are rule is a result of the expansion of the for Southeast Atlantic gillnet fisheries appropriate for large whale protection. final SAM gear requirements rather than under the ALWTRP. The line for Surveys are continually conducted by an elimination of the SAM program operational restrictions is north of the NMFS Southeast because it is not effective or enforceable. 27°51′ N. for both Southeast Atlantic Center and other NMFS partners. At this NMFS agrees that at-sea enforcement gillnet and trap/pot fisheries. Right time, NMFS cannot conclude with is important to the success of the whales are occasionally found in waters certainty that large whales are not ALWTRP and has conducted south of 27°51′ N.; thus, observational occurring in offshore waters out to the enforcement activities. NMFS also relies requirements (e.g., VMS, gear marking) eastern edge of the EEZ; thus, NMFS on its partnership with the U.S. Coast will be in effect under this final rule for deems it appropriate to extend the Guard (USCG) and state agencies to the Southeastern U.S. Atlantic shark boundary. monitor compliance with the ALWTRP. gillnet fishery from 27°51′ N. south to Comment 101: Several commenters NMFS has existing penalty schedules 26°46.5′ N. NMFS will continue to suggested that the original names for the for violations of the MMPA and the monitor this area from 27°51′ N. south Southeast management areas should be ESA, and regulations pursuant to those to 26°46.5′ N. in the event that sightings kept the same for clarity because the statutes. In addition, NMFS has entered data warrant the expansion of new names are confusing. into agreements with many states to management areas or restricted time Response: Based on public comment, encourage and facilitate joint periods. NMFS is not including the proposed enforcement of regulations. In recent Comment 98: One commenter said name change in this final rule. However, years, NMFS, in collaboration with the that fishing practices south of 29°00′ N. based on the commenters’ view that the USCG and its state partners, has targeted lat. off Florida are different from those proposed name changes are confusing, small areas within SAM areas to check

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

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

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the expanded SAM analysis for in this final rule before they are required 6 and 7 of the EIS explicitly consider Alternative 2, given that several DAM to do so through the ALWTRP. In the incremental effects of groundline zones occurred outside the expanded addition, NMFS, in collaboration with replacement beyond routine levels. The SAM area from 2003–2005. National Fish and Wildlife Foundation cost analysis presented in the EIS is Response: NMFS considered many (NFWF), administered a similar buyback based on prevailing market prices for all DAM areas when expanding SAM program in the Mid-Atlantic; see factor inputs, including neutrally boundaries for this final rule. If whales response to Comment 110. Finally, the buoyant and/or sinking groundline. One were observed in the same area during Gulf of Maine Lobster Foundation commenter points out that groundline the same season in three or more years, received a grant from NMFS for the suppliers may take advantage of a then this area was considered to have development and implementation of a mandate to use neutrally buoyant and/ predictable concentrations of whales, floating groundline buyback and or sinking groundline by resorting to and was incorporated into the final recycling program, in which floating price gouging, i.e., charging artificially SAM area. However, many DAMs only groundline is exchanged for sinking or high prices in order to realize large occurred once in an area and were thus neutrally buoyant groundline. The first profits. The government is aware of the considered too unpredictable to be phase of this program took place in May potential for such behavior and, if it considered as Seasonal Management 2007 in southern Maine and occurs, may take action to stop it. NMFS zones (Merrick 2005). Beginning 12 participants included Maine state also believes, however, that the months after publication of this final lobster fishermen in Zone G as well as schedule for implementing the rule, the expanded SAM zones will be federal lobster permit holders in Maine. modifications in the final rule will eliminated as the final gear Comment 118: Many commenters reduce the potential for price gouging. modifications required in the SAM stated that the time period for The requirement to use neutrally zones will be expanded to include all implementing the final rule is too short. buoyant and/or sinking groundline does areas, both spatially and temporarily, The commenters believe NMFS should not take effect until 12 months after throughout the range of right whales extend the time to implement the publication of the final rule. NMFS and other large whale species. ALWTRP because: (1) There is a limited believes spreading initial demand for availability of line; (2) price gouging Comments on Effective Date neutrally buoyant and/or sinking line may occur; (3) gear manufacturers are over this period of time will likely Comment 117: Many commenters hesitant to produce line based on their relieve market pressures that might urged NMFS to implement gear awareness of current line testing; (4) otherwise lead to price gouging. NMFS modifications sooner than 2008. The there is a lack of awareness of the actual further believes the 12 month phase-in commenters believed NMFS should [line] breaking strength and schedule of period would give suppliers of neutrally implement ALWTRP modifications degradation; (5) there is no immediate sooner because: (1) The proposed buoyant and/or sinking line the process for changing line; (6) two line opportunity to increase production to effective date does not comply with the testing experiments are currently MMPA; (2) the proposed effective date meet the increased demand; this underway to determine the usable life of increase in production would likely does not comply with the intent of ESA; sinking groundline and the practical and (3) PBR is being exceeded. Several mitigate against price gouging. Thus, commercial application of new NMFS believes rope will continue to be commenters believed the gear materials; (7) it will give offshore modifications should occur sooner than available for fishermen to comply with lobstermen more time and allow NMFS the effective date for the ALWTRP 2008 in certain large whale habitats, to consider the possibility of low profile sinking and/or neutrally buoyant such as Great South Channel, groundline; (8) it will allow for more groundline requirements. Stellwagen Bank, and Jeffreys Ledge, research and financial planning by especially in light of the Massachusetts industry; (9) as is, it would cause a large Although the model vessels analyzed buyback program that assisted capital expenditure over a 2-year period; in Chapter 6 of the EIS are generalized fishermen in converting to sinking and/ (10) it will give the Federal Government and may not reflect costs for all or neutrally buoyant groundline. and environmental groups more time individual vessels, NMFS does not Response: The ESA requires agency needed to secure funding to minimize believe incremental costs (i.e., costs actions to avoid jeopardy, and NMFS the financial burden; and (11) it will beyond routine gear replacement costs) believes the effective dates for this cost approximately $100,000 for an will typically be as high as $100,000. action are sufficient to avoid jeopardy. offshore lobsterman to switch over his The analysis suggests that initial The action and effective dates are also gear. Many commenters suggested an investment costs are more on the order in compliance with the goals of the implementation time of 4 years from the of $39,000 for large offshore vessels. MMPA, including reducing serious publication date of the final rule. Furthermore, while costs may be high injury and mortality of large whales to Response: Typically, NMFS provides for some large offshore lobster vessels, below PBR. 30 or 60 days for fishermen to comply the compliance costs are generally In 2004, the International Fund for with gear modifications such as mesh commensurate with revenues for these Animal Welfare, Massachusetts Division size restrictions and other requirements. large operations, i.e., costs as a percent of Marine Fisheries (MADMF), and the However, as evident by overwhelming of revenue are not prohibitive. Chapter Massachusetts Lobstermen’s Association public comment, given the magnitude of 7 of the EIS identifies vessel segments partnered to implement a lobster gear the time and resources needed by that may be heavily impacted by the buyback program. More than $650,000 fishermen to change their gear to requirements and suggests that under was disbursed to Massachusetts lobster sinking and/or neutrally buoyant Alternative 6 Final (Preferred), a limited fishermen who turned in floating groundline requirement, NMFS believes number of small vessels are most at risk. groundline; these fishermen replaced giving fishermen 12 months from the Although costs are high for some the floating line with non-buoyant line publication of the final rule to comply vessels, NMFS made modifications to consistent with the measures contained is warranted. See the ‘‘Comments on the final rule, based on public comment, in this final rule. Therefore, NMFS Low Profile’’ portion of the this section to decrease costs where possible while believes a portion of the industry is with respect to low profile issues. The still meeting its goals under the MMPA voluntarily implementing the measures costs and impacts analyzed in Chapters and ESA (see Changes from the

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Proposed Rule section of the preamble). equal to the interests of the fishing published data that supports these While these vessels may still realize industry, and that this approach directly reports; whale behavior (i.e., foraging) at high costs relative to revenues, counters NMFS’ obligation to protect various depths and bottom types is also fishermen have some options to try to whales and take measures to recover largely unknown at this time. NMFS mitigate the costs. For example, the species under the MMPA and ESA. recognizes that whales may spend time impacts of converting to sinking and/or Response: NMFS disagrees and at or near the bottom in some habitats, neutrally buoyant groundline may be believes it is implementing the as described by the commenter. The defrayed, in part, by current and future appropriate measures to reduce risk sinking groundline concept is a measure groundline buyback programs operated associated with groundlines, amongst to remove the maximum amount of line by NMFS and other partners. In other risk reduction measures, as from the water column in an effort to addition, although the requirements quickly as is feasible and consistent reduce the overall risk of entanglement. under Alternative 6 Final (Preferred) with the requirements of the MMPA and See also Comment 267. may impose significant costs within the ESA. Comment 125: Many commenters believed that rocky ledges are unlikely first year after publication of the final Comments on Groundline rule (to convert all groundline to sinking habitat for large whales and questioned and/or neutrally buoyant groundline), Comment 122: One commenter whether NMFS knew if large whales are fishermen may be able to distribute the questioned whether there is bottom feeders around rocky bottoms. cost of the new gear over its useful life overwhelming evidence that groundline These commenters also believed low by seeking a loan. After the first year, has caused entanglements. profile line should not be prohibited in ongoing costs would be significantly Response: There is evidence that such areas (i.e., inshore rocky habitat). lower as fishermen would only need to groundline has been involved in whale Response: Currently, available data replace worn-out and lost gear. entanglements. Both buoy lines and and scientific literature do not suggest Comment 119: One commenter groundlines have been identified as that whales treat rocky bottom areas any suggested NMFS require switching to sources of entanglements. differently than locations with other sinking/neutrally buoyant groundline Comment 123: Many commenters bottom types (e.g., mud). NMFS data for trap/pot gear in 2009. supported the use of sinking groundline. show whales aggregate over the Response: The sinking and/or One commenter stated that it will northern edges of George’s Bank, which neutrally buoyant groundline substantially reduce entanglement risks is dominated by rocky ledges. NMFS requirement will be effective in because it will reduce the amount of acknowledges that a better expanded SAM areas six months after line in the water column. One understanding is needed on prey publication of this final rule, and in all commenter stated there are few areas in distribution, and how whales utilize the other areas effective 12 months after Massachusetts where large whales have water column, including the foraging publication. not been sighted, and also stated that and diving behavior of whales. Comment 120: Some commenters sinking groundline may cause fewer Comment 126: One commenter does stated that complying with the proposed gear conflicts. However, another not believe that sinking/neutrally weak link regulations by 2008 would be commenter supported the use of sinking buoyant groundline would pose a risk to problematic. One commenter stated that groundline only if it would help the bottom-feeding whales. splicing weak links into existing gear whales, and is not in favor of it in areas Response: NMFS recognizes that any will be time-consuming, costly, change where there are going to be gear losses line in the ocean poses some risk of how gillnets work, and lower the catch. and it would not save any whales. entanglement and believes that sinking The commenters suggested requiring Response: NMFS appreciates the and/or neutrally buoyant line reduces weak links by 2009 or 2010, as this support with respect to sinking and/or that risk substantially. would help reduce compliance costs neutrally buoyant groundline and agrees Comment 127: One commenter and allow more time for gear that the end result is less line in the supports sinking groundline for gillnet modification. water column, and therefore a reduced gear. Response: NMFS agrees that meeting risk of entanglement. NMFS agrees that Response: NMFS appreciates the the increase in the number of weak links fewer gear conflicts may be a byproduct support for sinking groundline in gillnet per net panel from one to five or more, of sinking and/or neutrally buoyant gear. depending on the length of the net groundline. As discussed in the FEIS, Comment 128: Many commenters panel, will take time for fishermen. NMFS believes the use of sinking opposed sinking/neutrally buoyant However, based on public comments groundline will reduce the risk of groundline. The commenters objected to received, this final rule gives gillnet entanglement and recognizes it may this requirement because they believed fishermen 2 options to install the increase gear losses. the use of sinking/neutrally buoyant additional net panel weak links. These Comment 124: One commenter groundline would cause the following: two net panel weak link options will be cautions that juvenile humpback whales (1) The potential for an increase in effective six months after publication of and right whales have emerged with hangdowns, chafe, snag and/or burring the final rule. However, thirty days after mud on their heads, which indicates that would then increase gear loss/ghost publication of the final rule, these net feeding on the bottom. Therefore, risks gear; (2) safety issues and potential panel weak link options will be allowed to these whales may be increased when injury to fishermen; (3) a significant in current SAM areas and implemented using sinking groundline. The increase of vertical lines in the water as DAM zones when a gear modification commenter states that it will be critical fishermen who normally fish pairs, option is selected. to monitor gear modifications, triples, or trawls would probably move Comment 121: One commenter states specifically regarding how and when to fishing singles (i.e., if they had to use that NMFS seems to be balancing effectiveness will be measured. sinking and/or neutrally buoyant line); interests of different groups that Response: Although there are (4) the line to twist around the traps; advocate for accelerated phase-in of gear anecdotal reports of whales going to the and (5) the line to sand up during modifications with those that favor a bottom or having scratches on their storms and making it hard to grapple to longer phase-in period. The commenter snouts and stomachs, presumably from get it back. Furthermore, commenters stated that NMFS sees species survival traveling to the bottom, there is little cited other reasoning for not using

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

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

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

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

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

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to sinking and/or neutrally buoyant from vertical line. Additionally, NMFS information on ‘‘low profile’’ groundline groundline may be defrayed, in part, by has discussed and will continue to through the public comment process for current and future groundline buyback discuss options to reduce risk associated this rulemaking. Thus, states and fishing programs operated by NMFS and other with vertical line with the ALWTRT. industry are working with NMFS and partners. Further, NMFS has considered the ALWTRT to determine if emerging Comments on Low Profile concerns about sinking and/or neutrally technology exists to allow a buoyant groundline in Maine in NMFS solicited comments and conservation equivalent gear developing its preferred alternative, information from the public on issues modification to sinking and/or neutrally identifying additional areas off the coast related to ‘‘low profile’’ groundline (e.g., buoyant groundline in identified areas. of Maine that would be exempt from prey distribution, large whale NMFS may consider ‘‘low profile’’ ALWTRP requirements. Expansion of distribution and behavior, and methods groundline in the future, and will be the exempted areas would reduce the for reducing the profile), and received further discussing these issues with the economic burden on Maine lobstermen numerous comments. As many of those ALWTRT at the next meeting. without increasing entanglement risks. comments are not directly related to the Comment 159: One commenter stated In addition, although the requirements present rulemaking action, this that sinking line between anchors or under Alternative 6 Final (Preferred) preamble does not respond to all of the concrete blocks and the traps is may impose significant costs within the ‘‘low profile’’ comments received during problematic as the line wraps around first year after publication of the final the public comment period in this rule. these anchors. The commenter believed rule (to convert all groundline to sinking NMFS will provide all comments a 6-fathom (11.0-m or 36-ft) piece of and/or neutrally buoyant groundline), regarding low profile to the ALWTRT at floating line or shorter piece (e.g., one fishermen may be able to distribute the the next meeting when low profile to three fathoms (1.8 or 6 ft to 5.5 m or cost of the new gear over its useful life groundline will be discussed further. 18 ft) is necessary in this area to avoid by seeking a loan. After the first year, NMFS and the ALWTRT will have an gear loss and would not affect risk ongoing costs would be significantly opportunity to review and consider reduction. these comments at that time. lower as fishermen would only need to Response: Based on this comment replace worn-out and lost gear. Comment 158: One commenter said that the state of Maine low profile regarding the line between traps and Comment 157: One commenter said anchors, and review of the groundline that a consequence of the four research that has been done with the underwater camera has not been taken definition, NMFS finds that the alternatives (Alternatives 2, 3, 4, and 6) definition does not cover this portion of would be that because sinking into consideration by NMFS. the gear. (The groundline definition groundlines are too dangerous to Response: As noted in the preamble to ‘‘with reference to trap/pot gear, means employ, lobstermen will be forced to the proposed rule and DEIS, NMFS was a line connecting traps in a trap trawl, fish single traps in areas where they unable to support using ‘‘low profile’’ and with reference to gillnet gear, means normally fish pairs, triples, or small groundline in the development of this a line connecting a gillnet or gillnet trawls. The commenter also said that rulemaking action. NMFS identified bridle to an anchor or buoy line.’’) this will be an incredible economic additional research and analysis NMFS did not specifically seek or burden to fishermen and it will double necessary to determine whether receive public comment on the the amount of surface lines and buoys. lowering the profile of groundline to Response: See Response to Comment depths other than the ocean bottom groundline definition related to the line 128 regarding safety. The social impact reduces the potential for large whale between traps and anchors, and analysis included in the FEIS examines entanglement in certain areas. accordingly cannot make any the economic burden posed by the Additionally, NMFS determined that adjustments to the definition at this alternatives and the likely effect on the the depth to which the groundline time. NMFS will investigate this gear economic viability of fishing operations. profile could be reduced needs to be configuration through contact with The analysis identifies vessel segments established after more information is fishermen and states to determine how that may be heavily impacted by the collected and analyzed on prey common a practice it is in trap/pot requirements and suggests that under distribution, large whale distribution fisheries, determine the type of line Alternative 6 Final (Preferred) a limited and behavior, and methods for reducing used in this portion of the gear, quantify number of small vessels are most at risk the profile of groundline. NMFS would potential risk if floating line is used, when comparing annual compliance need to define ‘‘low profile’’ line in determine any new issues that may be costs to average vessel revenues. such a way that it is enforceable, is raised by requiring sinking and/or Contrary to the commenter’s assertion operationally feasible for fishermen, and neutrally buoyant line in this area of the that the alternatives would increase the reduces the risk of entanglement. gear, and discuss the appropriate amount of surface line, the alternatives Presently, NMFS and others are management response with the are specifically designed to reduce the researching all of these issues. For ALWTRT at the next meeting. amount of fishing line in the water example, NMFS has supported Comment 160: One commenter said column by requiring sinking and/or groundline studies by Maine DMR since that more research on using low profile neutrally buoyant groundline and by 2003, including use of a Remote groundline (i.e., groundlines that float extending sinking buoy line Operating Vehicle (ROV) to investigate between traps/pots at a height no greater requirements at the surface to new groundline profile and the experimental than 2 to 4 feet (0.6 to 1.2 m)) should fisheries not currently covered by the testing of low-profile groundline. During be pursued by NMFS as an ALWTRP. In addition, NMFS is the development of this final rule, administrative procedure. currently performing related research on NMFS also conducted a series of Reponse: Low profile groundline is vertical line by examining the workshops in September 2005 to gather not being required in this final rule. geographic distribution of vertical line information on low profile groundline, However, as noted earlier in this relative to whale distribution. This which included discussion of Maine’s preamble, NMFS will be further research will help characterize how research, and was discussed at the discussing the concept of low profile ALWTRP requirements and other December 2006 ALWTRT meeting. In groundline with the ALWTRT at the regulatory changes have influenced risk addition, NMFS solicited comments and next meeting.

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

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

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currents in the Quoddy Head area (see strengths and the best number and Comment 185: One commenter agrees the report ‘‘Load Measurements in placement of weak links according to with using weak links in gillnets more Lobster Gear’’ in NMFS’ Large Whale gear type and use. Another commenter than in buoy lines, but does not believe Gear Research Summary (NMFS, 2002)). stated that weak links on the buoy lines that NMFS has proven that 1,100-lb There are many reliable techniques should be designed to break. One (499-kg) weak links are sufficiently risk available in marking or affixing the commenter believes that without further averse. color code: The line may be dyed, research, NMFS cannot assume that the Response: NMFS believes that 1,100- painted, or marked with thin colored benefits of weak links to survival of lb (499-kg) weak links reduce whipping line, thin colored plastic, or whales are greater than the dangers entanglement risks by reducing breaking heat-shrink tubing, or other material; or posed by weak links; this commenter strength of traditional gear, which a thin line may be woven into or states that the greatest danger is using ranges from 3000 to 5000 lbs (1361 to through the line. In this final rule, the untested methods that could result in 2268 kgs). The breaking strength of gear marking scheme will require one 4- death and injury to whales that should weak links is based on the tractive force inch (10.2-cm) colored mark midway have been protected by other means. of animals in addition to commercial along the buoy line in the water column. Response: NMFS is committed to gear fishing practices (DeAlteris et al., 2002). Comment 181: One commenter stated research and development, and intends Should new information become that all gear-buoys and floats are marked to continue to support studies on weak available that may warrant a change to by law so there are 3,000 chances to links to reduce interactions between the weak link tolerances in gillnets, identify gear. The commenter said that large whales and commercial fishing NMFS will consider this new most of lines are marked 4 times with gear. NMFS has gear laboratories and information in consultation with the license number, name, and sometimes research teams that specifically focus on ALWTRT. home port. gear development and testing. Comment 186: Several commenters Response: NMFS understands that Additionally, NMFS contracts with disagreed with requiring five or more there are requirements that both traps researchers, individuals, and companies weak links with a 1,100-lb (499-kg) breaking strength per net panel. One and buoys be marked in many areas. To to develop gear solutions. Much of the improve the chances of identifying a commenter stated that modifying gear current take reduction plan measures gear type when neither a trap or buoy under the proposed weak link are based on the outcome of such gear are recovered some identification on the regulations is not possible, as they will research (e.g., weak links) conducted buoy line could be helpful. Under this incur great financial losses during and/or funded by NMFS. NMFS final rule, the gear marking scheme will haulback. One commenter specifically believes that weak links add a level of require one 4-inch (10.2 cm) colored suggested conducting further research to protection for large whales, and in mark midway along the buoy line in the determine if this is operationally combination with other mitigation water column. Additionally, trap/pot feasible for the offshore gillnet fishery in measures, serve as a valuable and gillnet gear regulated by the Maine. conservation tool. ALWTRP must mark all surface buoys to Response: In developing the identify the vessel or fishery with one Comment 184: Numerous commenters appropriate gear modifications in this of the following: the owner’s motorboat stated that weak links have never been area, testing has been done with registration number, the owner’s U.S. proven to reduce risk and that NMFS offshore vessels in the Gulf of Maine. vessel documentation number, the relies too much on them. Several Testing showed no additional federal commercial fishing permit commenters stated that lethal and life- operational problems beyond those number, or whatever positive threatening entanglements are known to experienced in the course of traditional identification marking is required by the have involved gear with weak links still fishing practices. NMFS worked closely vessel’s home-port state. attached, which had breaking strengths with commercial fishermen and the equal to or less than what NMFS has state of Maine to develop weak links for Comments on Weak Links proposed. One commenter stated that fishermen in this area. Comment 182: Several commenters weak link requirements in current Comment 187: A few commenters support the proposed use of weak links/ ALWTRP regulations have been in place questioned why NMFS is proposing to weak link regulations for the following for nearly 5 years, yet the rate of large retain the same breaking strength for reasons: (1) Fishermen have been whale entanglement has not been inshore fisheries while allowing greater cooperative in using them; (2) reduced. The commenter believes that breaking strengths in offshore fisheries. considerable research has already been the effectiveness of deploying weak Several commenters stated that weak done; and (3) weak links may reduce links on gear needs to be better analyzed link breaking strengths should be greater drowning deaths, reduce rope wounds for entanglement prevention. Another for offshore fisheries. One commenter at early entanglement stages, and lessen commenter suggested weak link failure believes that, for the lobster trap/pot the effects of entanglement by allowing may be a result of where the weak links fishery, the weak links should be 1,500 the whale to shed smaller lengths of are being placed in the gear. lb (680.4 kg) offshore and 600 lb (272.2 gear. Response: There is no evidence to kg) inshore, and should be in place from Response: The continued cooperation suggest that weak links, when designed Sept 1–Mar 31 only. Another and support from the fishing industry is and used properly, are ineffective. Weak commenter would like to see a 1,000-lb essential for the ALWTRP to achieve its links reduce the breaking strength of (499-kg) weak link or 1,500-lb (680.4-kg) goals. NMFS is committed to gear traditional gear. The breaking strength weak link versus a 600-lb (272.2-kg) research and development and intends of weak links is based on the tractive weak link in offshore waters so that to continue to support studies on weak force of animals in addition to there is not as much gear loss during links, which add a level of protection commercial fishing practices (DeAlteris bad weather. for large whales. et al., 2002). Weak links add a level of Response: Several months of at-sea Comment 183: Several commenters protection for large whales and NMFS testing of trap/pot gear has been support weak link research. One intends to continue to support studies conducted and NMFS believes the commenter suggested that NMFS on weak links to reduce entanglement breaking strengths in this final rule for determine species-appropriate breaking risk. See also response to Comment 183. inshore and offshore fisheries are

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

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

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commenter stated a loss of 10-percent of in risk (between one buoy line or two) split trawls or strings, thus increasing his buoys due to boat traffic. or the biological impacts and has not the number of vertical lines in the water Response: Pleasure boats causing loss offered a compensatory risk reduction column. In addition, requiring one buoy of surface systems is not necessarily due measure. line may increase the risk of gear loss, to the weak link. Based on the result of Response: NMFS considered the thereby increasing the entanglement at-sea testing, NMFS believes the Johnson et al. (2005) analysis that risks associated with ‘‘ghost gear’’ or breaking strength requirements are examined the fishing gear involved in fishing gear left untended or lost that appropriate. right and humpback whale continues to fish. Therefore, this would Comment 207: One commenter states entanglements. According to Johnson et not be an effective broad-based measure that weak links are unnecessary in shoal al. (2005), any line rising into the water to implement. NMFS will work with the waters because they pose a problem column presents an entanglement risk to ALWTRT to address the risk associated when changing lines, plus whales large whales. While it may appear from with vertical lines through future would hit the bottom if they entered this analysis that buoy and surface rulemaking. these areas. However, the commenter system lines represent a greater Comment 209: Several commenters understands that whales could be in 40– entanglement risk to large whales than prefer the single buoy line requirement 50 fathom (73.2 m or 240 ft–91.4 m or groundlines do, both the authors of the in SAM. One commenter stated that this 300 ft) water. analysis and the DEIS note that it is would decrease the number of buoy Response: NMFS has determined difficult to compare the relative risks lines in the water, which offsets the based on its understanding of current associated with these parts of fixed gear amount of ghost gear created from gear fishing practices that placing weak links for a number of reasons. There are many lost due to weather, gear conflicts, etc. as close to the buoy as operationally uncertainties associated with Another commenter suggested using one feasible presents little problem when entanglements; for example, the history buoy line in Cape Cod Bay, Great South changing buoy line, whether the trap is of a particular entanglement may not be Channel, Stellwagen Bank/Jeffreys in shoal or deep water. fully reflected from the gear recovered Ledge, other Northeast gillnet waters, Comments on Vertical Lines (or Buoy or the location of gear on a whale’s body SAM, Mid-Atlantic Coastal waters, and Lines) when an entanglement is first reported. other Southeast gillnet waters. There are also biases associated with Response: As noted in Comment 208, NMFS solicited comments and entanglement reporting effort, as well as neither the ALWTRT nor NMFS is able information from the public on issues a lack of information about the types to identify a viable option for further related to vertical line (e.g., how whales and amounts of gear currently in use. In reducing the risk associated with utilize the water column, gear addition, it is possible that vertical lines at this time. NMFS has modification options). Those comments entanglements in buoy lines are concluded that allowing the use of two related to this rulemaking action are reported more frequently at sea than buoys in SAM areas as specified in this responded to below. Those comments entanglements in groundline, as buoy final action will not result in an increase that are outside the scope of the present lines are easier to identify based on the in the amount of vertical line in the rulemaking action are not responded to presence of a buoy or high flyer. water. NMFS will work with the in this final rule, but will be provided Groundline does not have any ALWTRT to address the risk associated to the ALWTRT at the next meeting, distinguishing characteristics that with vertical lines through future when options for reducing risk would make it easy to identify; thus, rulemaking. associated with vertical lines will be this part of the gear can usually only be Comment 210: Many commenters discussed further. NMFS and the identified if gear has been recovered supported the use of two buoy lines for ALWTRT will have an opportunity to from an entangled whale, and even then the following reasons: (1) It would review and consider these comments at it is difficult to determine the part of the reduce the number of buoy lines in the that time. It is important to note that gear that piece of line came from. area; (2) it would make gear easier to NMFS provided the ALWTRT with a list Johnson et al. (2005) state that, despite grapple; (3) it would help reduce gear of management options to reduce risk gear recovery and/or identification, 44 loss/ghost gear; and (4) it would provide associated with vertical line to support percent of the entanglement events for safer hauling conditions. future discussion on this issue. analyzed in the study involved an Response: NMFS supports and allows Additionally, NMFS is funding an unknown part of the gear. The study the use of more than one buoy line. analysis to evaluate the effectiveness of confirms that vertical lines and floating However, NMFS notes that Cape Cod current and/or future fishing effort groundlines pose risks for large whales. Bay (January 1—May 15), Northern reductions in decreasing the amount of NMFS believes that addressing the risk Nearshore Lobster Waters, Stellwagen vertical line in the water column. This associated with floating groundline by Bank/Jeffreys Ledge Restricted Area, information will be provided to the requiring the use of sinking and/or and Cape Cod Bay Restricted Area ALWTRT at the next meeting to assist neutrally buoyant groundline will (Federal Waters May 16–December 31) in the discussion and development of reduce serious injury and mortality of currently have minimum limits on the recommendations to NMFS on reducing large whales due to incidental number of traps per one buoy line. See risk associated with vertical line. entanglement in commercial fishing response to Comment 208. Comment 208: A few comments were gear. As noted in the DEIS and FEIS, Comment 211: Many commenters received that claimed that the DEIS was NMFS believes that further research and supported 2 buoy lines for trawls of 5 inadequate because it only dealt with discussions with the ALWTRT are or more traps. half of the entanglement risk to large needed to address risks associated with Response: NMFS agrees with the whales. The commenters referenced the vertical line. commenters that 2 buoy lines are Johnson et al. (2005) analysis, which At this time, neither the ALWTRT or needed for many fixed gear fisheries. was provided in the DEIS, and indicated NMFS is able to identify a viable option However, see response to Comment 208. that entanglements occur in both for further reducing the risk associated NMFS notes that Cape Cod Bay (January groundline and vertical lines on an with vertical lines. NMFS has, in fact, 1–May 15), Northern Nearshore Lobster equal basis. Some commenters believe concluded that requiring the use of one Waters, Stellwagen Bank/Jeffreys Ledge NMFS has not quantified the net change buoy line may encourage fishermen to Restricted Area, and Cape Cod Bay

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

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buoyant line’’ and ‘‘sinking line’’ (see Comment 225: One commenter said AHDs are audible alarm devices which section 229.2). Under the ALWTRP, that no options were considered other warn small cetaceans and pinnipeds buoy line floating at the surface is than weak links. away from commercial fishing gear and universally prohibited. Response: In addition to weak links, operations by emitting Comment 220: One commenter states a number of options to reduce the risk sound pulses. No evidence exists that that the use of neutrally buoyant line of serious injury and mortality due to large whales would, in fact, respond to has not been proven for buoy lines in all vertical lines have been considered. such a sound signal. In addition, conditions. While the alternatives considered in this exposure to alarm or alerting stimuli Response: Presently, fishermen use proposed rule focus primarily on may result in whales abandoning a neutrally buoyant line for buoy line in reducing risks associated with desired feeding or mating area, which active fishing operations. In addition, a groundlines, NMFS is responding to the could result in significant adverse recent modeling study conducted by the vertical line issue through such effects on the population. Finally, ADDs Massachusetts Department of Marine measures as expanded gear marking, typically operate at much higher Fisheries compared the profiles of buoy reducing the breaking strength of weak frequencies (e.g., about 12 kHz) than links, regulating additional fisheries lines of different proportions of floating, right whales generally hear and vocalize under the ALWTRP, and considering sinking and neutrally buoyant rope (e.g., less than 4 kHz). two buoy lines allowed per trawl or under a variety of currents. The Comment 228: One commenter string. As a result, NMFS is outlining a modeling results indicate that, except suggested that NMFS implement gillnet strategy to reduce interactions with for at all but the lowest of currents, buoy measures year-round everywhere, groundlines in this final rule, along with lines showed similar profiles regardless including the Southeast. some measures to address vertical lines, Response: The potential for of line composition (i.e., sink, float, and plans to further address the risk entanglement of whales in the south and neutrally buoyant). Finally, it is known associated with vertical lines through Mid-Atlantic waters during summer that fishermen have experimented with future rulemaking. In addition, research months is minor. Therefore, the year- neutrally buoyant rope as buoy lines into reducing the risk associated with round requirements offer only minimal since the late 1990s and continue to use vertical line is ongoing. This research is risk reduction compared to the seasonal it. focusing on the profiles of vertical line requirements provided in this final rule, Comment 221: One commenter states with different buoy line configurations 1 which are based on the movement and that the bottom ⁄3 floating line on buoy (e.g., sinking and/or neutrally buoyant sightings of whales. lines should be allowed in SAM. He vs. polypropylene), as well as other Comment 229: One commenter urged also stated that flume experiments modifications (e.g., requiring a NMFS to prohibit gillnets from 1 showed that leaving the bottom ⁄3 as minimum number of traps per trawl in Stellwagen Bank National Marine floating line did not pose a problem to certain areas). NMFS and others are also Sanctuary. the whales and also prevented the traps investigating how whales utilize the Response: See response to Comment from ‘‘rocking down’’ (i.e., hanging water column, including foraging 16. down). He states that floating ecology and diving behavior, which will Comment 230: NMFS received one groundline is the cause of most help determine the appropriate comment in support of the 22-lb (10-kg) entanglements, and that there is more mitigation strategies for reducing Danforth-style anchor. groundline in the ocean than buoy line, entanglement risk from vertical lines. Response: NMFS agrees that the 22-lb thus groundline should be regulated Comment 226: One commenter stated (10-kg) Danforth-style anchor is more than buoy line. that fishermen use a knot in the middle appropriate based on research and Response: See response to Comment attached to a buoy to keep sinking line testing and has implemented this 217. off the bottom and asked that we not provision in this final rule. Comment 222: One commenter states eliminate buoy line with 2⁄3 sinking line Comment 231: One commenter that a clip is needed to take buoys off on top spliced to 1⁄3 floating line on the opposed the anchoring requirement for the line. bottom, which is more whale-friendly. ‘‘stab nets’’ in the Mid-Atlantic. Response: Clips to facilitate removal Response: NMFS currently Response: In Mid-Atlantic gillnet of buoys are not prohibited as long as encourages, but does not require, waters, the anchoring requirement is they are located above the strong end of fishermen to maintain knot-free buoy only in effect when anchored gillnets do the weak link in the buoy line. lines. See response to Comment 217. not return to port with the vessel. Therefore, this final rule does not Comment 223: One commenter states Comments on Gillnets contain an anchoring requirement for that, for vertical line in 30 feet (9.1 m) Comment 227: One commenter cannot stab nets returned to port with the water, there are 150 feet (45.7 m) of see how gillnets can ever be modified vessel. vertical line. In the bay with less such that they are risk-free to whales, Comment 232: Several commenters current, any sinking rope has a tendency unless a pinger modification is found cautioned that many of the proposed to get wrapped around the anchor. that works with no adverse effects. gear modifications (e.g., the use of Response: See response to Comment Response: NMFS believes that the sinking line, weak links and 22-lb (10.0- 217. required gear modifications will prevent kg) Danforth anchors) pose considerable Comment 224: One commenter said entanglements where possible and safety risks to fishermen. These that, if sinking vertical lines are reduce the severity of entanglements commenters advised that sinking line required, people are going to use toggles due to gillnet gear and will reduce the will snag on jagged bottom surfaces, and they are going to tie or snap-on risk of serious injury or mortality. At weak links could snap during hauls, and toggles to the vertical line. These toggles this time, NMFS does not believe that Danforth anchors will be dangerous to will keep rope straight up, which is Acoustic Deterrent Devices (ADDs or retrieve in rough seas. One commenter going to produce more stuff for whales pingers) and Acoustic Harassment also stated that the difficulty of to drag around. Devices (AHDs) are an appropriate retrieving Danforth anchors in adverse Response: See response to Comment measure to reduce interactions with conditions will lead to more anchors 217. large whales. ADDs (or pingers) and being left on the bottom and force

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fishermen to buy already-expensive Thus, NMFS believes further research beach-based gear to help ensure replacement anchors more often. on this fishery, and specifically testing landings are reported accurately for Response: Safety issues are always a weak links in drift gillnet gear, is beach-based gear versus gillnets, among concern to NMFS. NMFS believes that needed before weak links should be other issues. the gear modifications required under required. NMFS will conduct research Comment 237: Several commenters the ALWTRP do not present significant in this fishery and discuss whether state that recreational fisheries are increased dangers above those of normal additional requirements are warranted currently not covered under the plan fishing practices. However, NMFS will with the ALWTRT. NMFS and should be regulated under the continue to monitor this situation acknowledges that few interactions ALWTRP and, in some areas, such as through discussions with industry and between large whales and commercial southern New England, they comprise a the ALWTRT. All three modifications fisheries have been observed and great deal of fixed gear. One commenter stated by the commenters were tested in recorded by NMFS observers. These are states that all fixed gear, whether it be the Northeast, Mid-Atlantic, and rare events; however, they are occurring from recreational or commercial Southeast regions under diverse weather at a rate unsustainable for the large fisheries, should be regulated similarly. conditions and were found to be whale populations covered by the Response: NMFS appreciates the successful. Although NMFS tested ALWTRP. concerns raised by the commenter and Danforth-style anchors in unfavorable Comment 234: One commenter reiterates that NMFS currently issues weather conditions, fishermen should encouraged NMFS to require 600-lb regulations to reduce marine mammal contact the NMFS Gear Research Team (272.2-kg) weak links on all flotation serious injuries and mortalities during if they experience problems. This final devices attached to the buoy line of commercial fishing operations as rule states that gear has to be anchored driftnet gear. mandated by MMPA section 118. The at each end of the net string with an Response: Driftnet gear will have MMPA does not currently authorize the anchor that has the holding power of at requirements under this final rule; Secretary to address marine mammal least a 22-lb (10.0-kg) Danforth-style however, buoy line weak links will not bycatch from non-commercial fisheries. anchor, not necessarily a Danforth be required. NMFS will discuss whether However, recreational fishers that take anchor. However, fishermen in the Mid- additional restrictions are warranted for marine mammals are in violation of the Atlantic and Southeast do not have an the driftnet fishery with the ALWTRT. MMPA prohibition against taking anchoring requirement unless they Comment 235: Several commenters marine mammals. NMFS has created return to port without their gear. were concerned about the current brochures designed to inform Additionally, NMFS is approving a requirement that driftnets be attached to recreational fishermen about protected weak link anchoring option for gillnet the boat at all times at night. The species conservation. fisherman within 300 yards (274.3 m or commenters stated that certain types of Comment 238: One commenter 900 ft) of the beach in North Carolina to driftnets used in the Mid-Atlantic region requested that NMFS consider alleviate safety issues in this area. would not fish properly if the net is regulations that prohibit recreational NMFS gear specialists are available to constantly attached to the boat. boats from leaving vessel anchoring consult on these issues and to provide Response: Presently, this requirement systems to occupy a fishing spot suggestions on how to comply with this applies in the Mid-Atlantic from without actually fishing there. The requirement. In response to any safety December to March under the ALWTRP. commenter believes recreational vessels risks posed by weak links, gear research This final rule extends this requirement should be prohibited from tying up to studies that involved pulling a string of from September to May. NMFS will fixed gear high flyers because it is nets in the Gulf of Maine in up to 45 raise this issue for further discussion doubtful that a 1,500-lb (680.4-kg) weak knots (51.8 mi/hr or 83.3 km/hr) of wind with the ALWTRT at future meetings. link would hold a recreational vessel. in 100 fathoms (182.9 m or 600 ft) of However, at this time, NMFS is not The commenter believes this practice water and utilizing 1,100-lb (272.4-kg) aware of driftnet fisheries that release increases gear loss in the Mid-Atlantic. weak links resulted in no failures. Thus, the net from the vessel at night. Response: See response to Comment NMFS believes that it is unlikely that 237 for legal authorization to regulate Comments Specific to Certain Fisheries/ the weak links in the gillnets would recreational fisheries. See also response Additional Fisheries Under the break during fishing operations. The to Comment 190 regarding vessels tying ALWTRP NMFS Gear Research Team will onto other vessels’ line. It is unlawful, continue to investigate weak links and Comment 236: One commenter states however, for any person to steal or various anchoring systems. Regarding that testing is needed on the beach seine attempt to steal or to negligently and safety issues related to sinking line, see fishery, which is a selective type of without authorization remove, damage, response to Comment 128. fishing. or tamper with fishing gear owned by Comment 233: Two commenters do Response: At this time, NMFS is not another person located in the EEZ. not support an 1,100-lb (499-kg) weak regulating gillnets that are anchored to Comment 239: Several commenters link for driftnets fished at night. They the beach and subsequently hauled onto urged NMFS to investigate emerging state that nets are 50–60 ft (15.2–18.3 m) the beach to retrieve the catch. This fisheries (e.g., whiting fishery and deep, are not strong enough, catch fish fishing technique is known to occur on fishery in Florida) that could like bluefish and , and can the beaches of North Carolina. NMFS use fishing gear that poses a threat to break easily and create ghost gear if will be discussing what the appropriate whales. weak links are required. The fishery is management measures for this unique Response: NMFS currently publishes from May to July. They state that there fishery should be with the ALWTRT at the , Gulf of Mexico, and has been observer coverage the last 4 yrs a future meeting. In the meantime, Caribbean Category I & II List of (36 trips) and no entanglements were NMFS will conduct outreach and Fisheries under the Marine Mammal observed. research on this fishery to support Authorization Program (MMAP) and Response: NMFS is not implementing future discussions with the ALWTRT. includes both state and Federal waters. the proposed weak link requirement for NMFS will be coordinating with the In addition to the current list of fisheries tended driftnet gear at this time due to North Carolina Department of Marine managed by NMFS, any new or potential safety issues that were raised. Fisheries to revise the definition for emerging fishery operating in Federal

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

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

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

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Response: Limiting the number of compliance, because every time NMFS gillnet fishery. Presently, there is no fishermen in a fishery, if resulting in writes a rule, the commenter believes VMS requirement for lobster trap/pot reduced fishing effort, may provide that the honest fishermen are being gear. conservation benefits to large whales. punished. The requirements to tag lobster traps However, such a management measure Response: NMFS is aware of the and some gillnet fishing activities is beyond the scope of this ALWTRP desire to haul gear to monitor allows NMFS to identify individual final rule. NMFS may consider such compliance with ALWTRP traps and some net panels by discreet action in future rulemaking regarding requirements. Federal funds have been identification numbers. authorized gears and permit reform for made available to state enforcement Comment 267: One commenter Highly Migratory Species (HMS) entities. Some of these funds have been acknowledged and encouraged NMFS’ fisheries. The current definitions in 50 utilized to purchase or lease/rent vessels plans to convene an ALWTRT Subgroup CFR 229.2 explain the difference capable of hauling trap/pot gear. Law on monitoring. between anchored (e.g., sink gillnet) and enforcement also can board a vessel and Response: A Status Report Review driftnet gear. observe as the operator retrieves gear to Subcommittee, which will address Comment 262: Several shark monitor compliance with gear monitoring, has been established as an fishermen in the Southeast said they requirements. NMFS seeks to identify outcome of the April 2005 ALWTRT lost 3 fishing days due to right whales non-compliant fishermen in its Meeting. being in the area and fishermen moving enforcement efforts. Comment 268: One commenter stated their gear. The commenter wanted this Comment 265: One commenter a perceived lack of enforcement in the to be acknowledged by NMFS. suggested developing an enforcement Gulf of Maine, which was brought up at Response: NMFS appreciates the plan that outlines agencies with the last NEFMC meeting. The efforts of these fishermen and their authority, the role of each agency with commenter stated that the NEFMC was participation in helping to conserve authority, and a letter of agreement briefed on NMFS’ enforcement efforts highly endangered right whales. See among authorities for timely and and cooperation with the states. response to Comment 274. efficient enforcement. Response: NMFS has increased Response: The authority and the role enforcement of ALWTRP regulations in Comments on Enforcement of individual agencies with respect to the Gulf of Maine, George’s Bank, and Comment 263: Several commenters species covered by the ALWTRP is Southern New England. This has been stress the need for strong enforcement determined directly by the ESA and the done through USCG efforts and through and believe there is no mechanism or MMPA. The USCG provides the state-Federal partnerships over the past system (e.g., enforcement strategy) or resources, personnel, and expertise for 3 years. The states of Maine, timeframe for handling violations or enforcement at sea while NMFS Massachusetts, and Rhode Island have monitoring compliance in the proposed provides case development and received funds to conduct at sea rule. One commenter states that the prosecution. Coastal states have enforcement of ALWTRP regulations. existing regulations are under-enforced, assumed an increased role in Comment 269: One commenter stated and that adequate enforcement of enforcement at sea. that NMFS should address the fact that existing regulations would protect Comment 266: One commenter the State of Maine has apparently not whales sufficiently. requested that NMFS mandate new mandated compliance with the Response: Enforcement of the reporting programs where fishermen protocols used under the Atlantic Large ALWTRP regulations is essential to their report in real-time where they are Whale Disentanglement Network. success. Current regulations are being placing fishing gear and where the gear Response: The State of Maine has enforced and increased enforcement is being lost. developed a conservation program that would likely lead to increased Response: NMFS is concerned about assumes a larger role, relative to many compliance. The mechanism for lost gear and collects data on losses. For states along the eastern seaboard, in the enforcement is through a partnership example, in the Federal lobster fishery, disentanglement of large whales. NMFS between NMFS Office of Law data are collected about losses that has worked closely with the state on the Enforcement (OLE), the USCG, and state exceed the allocated gear loss development and evolution of the enforcement entities. Monitoring allowance. The fishing gear types that conservation plan and believes Maine is compliance levels at sea is challenging the ALWTRP regulates are operating in accordance with the because of the complexity and predominantly lobster trap and multi protocols. geographic expanse of the fishing species sink gillnet. Federal lobster and Comment 270: One commenter activity subject to the ALWRTP. NMFS’ gillnet fishery reporting requirements believed year-round requirements in the strategy is to partner with state entities collect some location information EEZ would facilitate enforcement, as many states have personnel and through vessel trip reports. State lobster whereas a three month exemption in the vessel resources available for marine fishery management plans monitor Mid-Atlantic (as in Alternative 3) would resources compliance monitoring. These effort by distinct fishing areas under an be problematic for enforcement. partnerships have yielded some interstate fishery management plan. Response: The enforcement excellent results. For example, a short Neither of these processes is real time as community has experience with a large duration random survey of lobster gear suggested by the commenter. number and variety of time-area was conducted by the Maine Marine As of November 22, 2006, all limited closures and gear restricted areas in the Patrol along the coast of Maine in 2004. access Northeast multi-species vessels Mid-Atlantic as well as the Northeast. This 30 day survey demonstrated a 98- (which would include sink gillnet NMFS believes the 3-month period in percent compliance rate with ALWTRP activities) are required to use real time question, versus year round requirements. reporting of vessel location through the requirements, may not be optimum in Comment 264: Commenters stated vessel monitoring system (VMS). VMS terms of enforcement but has been that NMFS needs some kind of is being considered for the entire selected to reduce regulatory impacts on enforcement where either states or the groundfish fleet, which would include the fishing industry during periods federal government is able to lift these sink gillnet activities, under Framework when whales are infrequently sighted in nets and make sure they are in 42. VMS is also utilized in the shark that area.

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

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VMS device does not indicate whether reduce the risk of ship strike to right mechanism. Although current reporting it is functioning properly. whales, such as speed restrictions and practices and improved knowledge Response: NMFS disagrees that VMS vessel routing measures. about the types of wounds inflicted by and observer coverage are duplicative, The proposed rule is one component ship strikes have improved as each program serves a different of a suite of comprehensive right whale understanding of ship strikes, many purpose. The Observer Program is ship strike reduction measures, which ship strikes are still likely to go intended and designed to collect also includes and outreach to undetected or unreported. fisheries-dependent physical, biological, commercial and recreational mariners, Comment 281: One commenter states and economic data, which can then be research on technologies that may help that more whales are hurt by ships used in stock assessments and also mariners avoid whales, a outside three miles (5.6 km) than by verify logbooks; the program is not comprehensive program of sighting rope and buoys used in fishing meant for compliance monitoring. In advisories to mariners, section 7 operations. contrast, VMS’ primary purpose is the consultations to address Federal vessel Response: Because many ship strike monitoring and enforcement of time- activities, and the development of a and entanglement events are area closure restrictions, as well as gear Conservation Agreement with Canada. unobserved at the time the incident compliance. As Federal agencies, under section 7 actually occurred, it is difficult to NMFS believes it is the responsibility of the ESA, the branches of the U.S. determine where whales are struck or of fishermen to make sure that their military are required to consult with become entangled. In addition, many VMS units are functioning properly. If NMFS (or U.S. Fish and Wildlife entanglement and ship strike events units malfunction, individuals should Service) to ensure that their actions are likely go undetected. As such, it is coordinate with Southeast Enforcement not likely to jeopardize the continued difficult to draw conclusions about VMS personnel or contact a vendor or existence of any endangered or where these events occur and whether electrician to tend to the unit; vessel threatened species or result in the ship strike or entanglement poses a operators are advised to not leave port destruction or adverse modification of greater threat to large whale until the unit is functioning properly. critical habitat. Both the U.S. Navy and populations. NMFS recognizes both See Comment 275. the USCG have undergone ESA section entanglement and ship strikes as 7 consultations on various activities that human-caused sources of serious injury Comments on the Shipping Industry may affect large whales. In addition, the and mortality to large whales that need and/or Ship Strikes U.S. Navy and USCG implement to be addressed in order to recover these Comment 279: Numerous commenters internal policies regarding marine species, and is undertaking regulatory stated that NMFS needs to address the mammals, including marine mammal efforts to address both issues. See shipping industry (e.g., tankers, observer training, restrictions on response to Comment 279. freighters, large ships, and ocean liners) activities in protected areas and Comment 282: Two commenters and the Navy, as ship strikes are the important habitats, reporting of any stated that the LNG Terminal, which is leading cause of serious injury and dead or injured whales sighted and located in the summer feeding ground, death to large whales (as opposed to just mandatory reporting of any interactions will result in vessels going through the regulating commercial fishermen). One with marine species. feeding grounds, which is more commenter requested that NMFS NMFS recognizes both entanglement dangerous than entanglement risk. One address shipping and cruise industry and ship strike as human-caused of these commenters believes that it is ship strikes before prohibiting floating sources of serious injury and mortality wrong to put a proposed LNG terminal groundline. to large whales that need to be into the Critical Habitat Area. The Response: NMFS acknowledges and addressed in order to recover these commenter states that the big propellers appreciates the commercial fishing species. Floating groundline has been on the patrol boats are more apt to kill industry’s involvement in the ALWTRT identified as an entanglement risk to a whale then some fishing gear. and the modifications already made to whales, and is therefore being addressed Response: While NMFS appreciates reduce the risk of serious injury and in this final action. the concern raised, the current action mortality of large whales. NMFS agrees Comment 280: Many commenters said addresses the effects of entanglement in that ship strikes and the need to that more should be done to reduce the commercial fishing gear on large mitigate the risks posed by vessel traffic mortality of whales due to commercial whales. The effects of other marine is also important to large whale and military ship strikes. Commenters resource uses, such as commercial conservation and recovery. As such, stated that NMFS has not found a shipping and offshore LNG terminals, NMFS is simultaneously pursuing other solution to ship strikes or entanglements are being addressed through other rulemaking strategies and policy and little has been done. Other regulatory and management processes. discussions to address the threat of ship commenters believed that, though LNG terminals are licensed by other strike. The Northeast and Southeast commercial and naval ships pose the Federal agencies, which are subject to Implementation Teams (NEIT/SEIT) for greatest threat to whales’ existence, the requirements of section 7 the recovery of the North Atlantic right these ships continue to operate largely consultation under the ESA. See whale include representatives from unregulated. Several commenters response to Comment 279. various Federal agencies, such as the believed that ship strikes occur more Comment 283: Another commenter Navy and the USCG, state agencies, port often than previously thought. mentioned that whales are beyond authorities, and the shipping industry. Response: NMFS agrees that ship Schoodic Ridge, west of Blue Nose Based on information and strikes are a source of mortality to large Buoy, and in deep water. The recommendations provided by these whales that needs to be addressed in commenter has seen large vessels groups, NMFS developed and published order to recover these species. See including a high speed ferry traveling at a propose rule for right whale ship response to Comment 279. NMFS 50 knots (92.6 km) through feeding strike reduction in the Federal Register acknowledges that historic reports of whales. The commenter believes that (71 FR 36299, June 26, 2006). The ship strikes may not accurately there should be regulations on ships, proposed rule presents regulatory represent the frequency of ship strikes and does not understand why measures that NMFS is considering to due to the lack of a central reporting lobstermen are singled out.

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Response: NMFS agrees that ship measures from fishing operations for NMFS is also working on a proposed strikes and the need to mitigate risks right whales in Canadian waters. NMFS rule to minimize the potential for future posed by large, fast-moving vessels are has also initiated discussions regarding serious injury and mortality of whales important to large whale conservation an International Conservation from whale watch vessels. and recovery. As such, NMFS is Agreement for right whales with Comment 286: One commenter asked pursuing other rulemaking strategies Canada, which would include the why NMFS is not attacking the real and policy discussions to address the impacts of shipping on right whales. problem, which the commenter said is issue of ship strikes. See response to The Conservation Committee of the cruise ships, ferries, tankers, and whale Comment 279. International Commission watchers. The commenter said some Comment 284: Some commenters (IWC) identified ship strike as a priority vessels leave Bar Harbor going 35 miles stated that NMFS should address all item in the conservation agenda, and an hour (56.3 km/h), and he hears on sources of endangered whale mortality. recently formed a ship strikes working the radio about the whales they are Many commenters were concerned group to assess the level of threat caused seeing. The commenter said that these about the level of regulation on the by maritime traffic worldwide and to vessels could be chasing whales into fishing industry relative to other causes examine policies that could be fishing gear. of mortality like shipping and land implemented to mitigate the impact of Response: NMFS is currently based activities (e.g., water quality ship strikes. The International Maritime pursuing a comprehensive strategy of issues). One commenter pointed to Organization (IMO) has reviewed and regulatory and non-regulatory measures those which endanger whales by approved proposals to address the to reduce the impact of shipping on disposing of waste at sea as another impacts of shipping on marine right whales. See response to Comment example of an unregulated group that is mammals, including approval of the 279. Although it is possible that a whale not reached by today’s regulations. right whale Mandatory Ship Reporting could become entangled in fishing gear Some commenters stated that all System in 1998 and the shifting of the while attempting to escape an oncoming industries should share the regulatory Bay of Fundy shipping lanes in Canada vessel, NMFS is not aware of such an burden, yet some are unregulated (e.g., in 2003. In December 2006, the IMO event being documented. Researchers shipping and Canadian fishing gear). approved a proposal to shift the Boston continue to investigate the Other commenters stated that NMFS Traffic Separation Scheme to reduce the circumstances under which whale/gear should seek a comprehensive whale overlap between heavy shipping traffic and whale/vessel interactions occur. protection strategy that takes other and large whales. Comments on Gear Reduction impacts into account nationally and International organizations such as internationally to share the the IWC and the International Council Comment 287: Two commenters responsibility of conservation efforts. on the Exploration of the Sea (ICES) are referenced LMA 3 as an area where Response: NMFS realizes that other examining the effects of ocean noise on there was a reduction in lobster traps marine resource user groups are marine mammals, including the noise being fished. One commenter urged affecting large whale populations, and generated by shipping, oil drilling, and NMFS to consider the recent LMA 3 NMFS will continue efforts to reduce seismic exploration. NMFS convened offshore historical qualification process these impacts. NMFS is pursuing the first international symposium on that reduced the number of offshore various regulatory and non-regulatory shipping noise and marine mammals in permits from 968 to 133 and the number strategies for reducing the impact of 2003. All of these groups are of traps from approximately 400,000 to vessel collisions on northern right considering strategies for managing 160,000. The other commenter stated whales. See response to Comment 279. human-produced noise sources in the that in LMA 3 there has been a 40- Many ocean disposal and discharge marine environment. percent reduction in traps fished. The activities require permits issued by Many of NMFS’ activities to promote commenter stated that trap reduction is other Federal agencies such as the U.S. the conservation and recovery of large the most valuable way to stop Environmental Protection Agency and whales are directed by actions outlined interaction with whales. Another the U.S. Army Corps of Engineers. in recovery plans developed in commenter stated that reducing the Under section 7 of the ESA, any Federal accordance with the ESA. Recovery number of traps in an area, such as in agency issuing such a permit must plans are designed to provide LMA 3 will be better than gear consult with NMFS (or U.S. Fish and comprehensive strategies for recovering modifications and it will better help Wildlife Service) to ensure that the endangered species. protect whales. The Federal lobster issuance of the permit is not likely to Comment 285: Several commenters management plan identifies and jeopardize the continued existence of believe that the negative impacts of the restricts the number of fishermen able to any endangered or threatened species or whale watch industry need to be fish offshore, and this smaller number of result in the destruction or adverse assessed. One commenter said that there fishermen will reduce their traps, modification of critical habitat. Section is a problem with whale watching buoylines, and loops. The commenter 7 consultations often result in vessels getting too close to whales. estimated a nearly 50 percent reduction restrictions and mitigation measures Response: NMFS monitors the over the next five to seven years. One that are required of the permit applicant activities of the whale watch industry. commenter states that the overall in order to reduce impacts to NMFS has developed a set of whale amount of gear and fishing effort will be endangered species. watching guidelines for the Northeast, reduced over the next couple of years. NMFS also continues to participate in which outline appropriate speed limits The commenter states the number of international fora that address impacts and approach distances to reduce the lobstermen is declining from 3,000 to to large whales. NMFS is continuing to potential for harassment of whales. less than 150 and the amount of gear in work with Canadian biologists and to NMFS also has a regulation prohibiting the water will decline by more than 40 support efforts to expand approaching closer than 500 yards (1500 percent. disentanglement efforts in Canadian ft, 457.2 m) to a right whale. NMFS Response: NMFS acknowledges the waters. NMFS will continue to work conducts active outreach to whale effort reductions that are occurring in with the government of Canada toward watch companies to encourage LMA 3, and agrees that this should help development of similar protective compliance with these guidelines. reduce serious injury and mortality of

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large whales. NMFS believes these effort name, and boat name. Commenters injuries and mortalities. Commenters reductions will be critical to future stated that most balloons picked up that encouraged NMFS to pursue parallel discussions with the ALWTRT on how are not marked come from Canada. conservation measures with the to reduce risk associated with vertical Another commenter said that he fears shipping industry and military vessels line. However, NMFS believes reducing being evicted from the lobster grey area in the U.S. as well as Canada. One risk associated with groundline through because Canadian and U.S. gear is being commenter encouraged NMFS to work this final rule is appropriate even with fished side by side and one would not with the Canadian Government through the effort reductions occurring offshore. be able to tell whose gear is responsible the Canadian Species at Risk Act for Additionally, with this final rule, NMFS for potential entanglements. joint efforts to protect right whales. intends to address all fishing gear that Response: NMFS disagrees with the Response: Coordination between poses a risk to large whales similarly. commenters’ claim that most recovered Canada and the U.S. concerning Comment 288: One commenter states polyballs or ‘‘balloons’’ that are not transboundary marine mammal and that the figures in the DEIS do not marked come from Canada. Further, other protected species has been reflect an additional two-year lobster NMFS notes that it is not revising the ongoing since mid-1990. In earlier years gear reduction along with continual ALWTRP based on the recovery of the coordinated efforts focused on passive reductions through a proposed unmarked polyballs or gear that may broader issues concerning Atlantic trap transferability plan recommended have originated from the grey area. The , harbor porpoise, and right to the ASMFC. The commenter would need for the revisions of the ALWTRP whales. At that time, most of the issues like to see a trap buyback to further is the continuing risk of serious injury regarding right whales were secondary reduce the number of traps to help and mortality of Atlantic large whales as both countries addressed other whales and the lobster fishery. due to entanglement in commercial pressing issues. Although both countries Response: The commenter is likely fishing gear. NMFS considered several continued to work cooperatively on referring to Addenda IV and V to the factors when evaluating the right whale issues, limited resources Lobster FMP. As discussed in Chapter 9 entanglement information: (1) A prevented both countries from meeting of the FEIS, Addendum IV as initially mortality or injury may involve multiple on a regular basis. However, in proposed incorporated an accelerated factors (e.g., whales that have been both anticipation of the implementation of trap reduction program and the struck by a ship and entangled are not SARA, the group was reconstituted in implementation of a transferable trap uncommon); (2) the actual gear type/ January 2003. The focus of the group program in LMA 3 (among other source is often uncertain; and (3) several was still based on species-specific provisions). ASMFC deferred action on types of gear may be involved in a given conservation, but the charge for the this proposal, opting instead to address reported entanglement. NMFS limits a working group was expanded to include this issue under Addendum V. The ‘‘serious injury’’ designation to only joint assessments, listing criteria, and approach originally outlined in those reports that offer substantiated recovery planning and implementation Addendum IV proposed an overall trap evidence that the injury is likely to lead in a broader sense to include all cap of 2,600 traps and a two-tiered tax to the whale’s death. Injuries that transboundary marine mammal and on the purchase of traps, with a higher impede the whale’s locomotion or protected species stocks (with the tax applied when the purchaser owns feeding are not considered serious exception of ). The 2,100 traps or more. In response to injuries unless they are likely to be fatal working group’s primary efforts are concerns raised at public hearings that in the foreseeable future. toward right whale recovery efforts. a 2,600 trap cap may be too high, the Comment 290: One commenter NMFS is continuing to work with the LMA 3 Lobster Conservation expressed concern over the lack of Canadian Government to develop and Management Team (LCMT) amended its Canadian take reduction efforts and gear implement protective measures for right original proposal under Draft modification requirements. The whales in Canadian waters. In addition, Addendum V. Addendum V proposed a commenter expressed concern that all NMFS is working with Canadian whale cap of 2,200 traps and a two-tiered tax entangled whales get counted against biologists and support teams to improve on the purchase of traps, with a higher U.S. fishermen. and expand disentanglement efforts in tax imposed when the purchaser owns Response: NMFS is issuing this final Canadian waters. 1,800 or more. Addendum V was rule specifically to address commercial Comments on the Number of Traps per approved by the Board at the March fishery impacts from U.S. fisheries. Trawl 2004 Board meeting and went into effect NMFS acknowledges that entanglements in 2005. with fishing gear from Canadian Comment 292: One commenter NMFS and others have supported fisheries may also cause serious injury encourages more traps per buoy line buybacks of groundline. See response to and mortality to large whales. NMFS is whenever possible. For areas in eastern Comment 93. Limiting the number of currently addressing these threats Maine where sinking groundline cannot traps in a fishery, if resulting in reduced through formal discussions with be used, the commenter thinks reducing fishing effort, may provide conservation Canada. For example, NMFS is working line by shifting to longer trawls where benefits to large whales. However, this with representatives from the Canadian possible would be a viable option. The management measure is beyond the DFO to develop and implement commenter recommends a limit on the scope of this final rule. NMFS is protective measures for right whales in number of traps per lobster trawls as an pursuing measures such as trap effort Canadian waters. The ALWTRP is emergency action. Another commenter reduction through other rulemaking designed to respond to the threats posed opposes putting limits on the number of actions (e.g., 70 FR 24495, May 10, by domestic fishing gear. traps per trawl. The commenter states 2005). Comment 291: Several commenters that he cannot fish more than 25 traps state that NMFS should work more per trawl due to boat size. Comments Regarding Canadian Gear/ closely with the Canadian Government Response: In this final rule, NMFS is Fisheries to harmonize American and Canadian maintaining the status quo for the Comment 289: Several commenters fishery regulations. They state that minimum number of traps/pots with a said that Maine fishermen mark Canadian fishing gear is a major cause single buoy line in specific management balloons with fishermen’s name, harbor of whale entanglements that lead to areas. Additionally, NMFS believes that

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reducing profile of groundline along the anchoring at sea with the ALWTRT at action to further reduce serious injury east coast, including eastern Maine, that time. and mortality to large whales resulting through this action is important to from interactions with commercial Comments on Research reduce the serious injury and mortality fishing gear regulated under the of large whale due to incidental Comment 296: One commenter states ALWTRP. Also, see response to entanglement in commercial fisheries. that research concerning right whale Comment 296. Options such as this for reducing risk behavior and its use of the water Comment 298: One commenter associated with vertical lines will be column is needed as there are gaps in suggested NMFS conduct research discussed with the ALWTRT at the next information and high priority needs. concerning large whale prey meeting. Response: NMFS agrees that more distribution and whale foraging areas, Comment 293: One commenter research is needed on right whale and how these tie into effective gear understands that NMFS is not proposing behavior and their use of the water marking and how to effectively reduce to move nearshore requirements into column. To try to gather this needed risk of vertical lines. inshore waters. The commenter states information, NMFS developed a number Response: This is an area that both that there should not be restrictions of right whale biological needs priorities NMFS and the ALWTRT recognize as such as ‘‘no single traps’’ or ‘‘one buoy in support of the ALWTRP and included important. A variety of organizations are these in the 2006 NMFS Northeast line for less than five trawls’’ in inshore already conducting research on large Region’s Request for Proposals for right waters. The commenter does not agree whale prey items; for example, Maine whale research and Atlantic coast states with nearshore regulations being DMR is working in conjunction with a right whale recovery plan programs. expanded into inshore waters. number of whale research organizations These priorities included the need for to gather zooplankton data in Maine Response: As the commenter stated, research on the horizontal and vertical NMFS is managing inshore and waters. In addition, NMFS developed a distribution of right whales in the water number of right whale biological nearshore trap/pot waters differently column, including over rocky bottom under the plan. NMFS will be priorities in support of the ALWTRP and coral or wreck habitats, as well as and included these in the 2006 NMFS discussing options for addressing risk research on the temporal and spatial associated with vertical line with the Northeast Region’s Request for distribution of right whales. In this final Proposals for right whale research and ALWTRT at the next meeting, and will rule, NMFS is implementing broad- pass along the commenter’s concerns. Atlantic coast states right whale based measures to further reduce the recovery plan programs. One priority Comments on Vessel Anchoring risk of serious injury and mortality to included the need for research on the Systems large whales from interactions with vertical distributions of both the commercial fishing gear. In the future, Comment 294: Many commenters processes and the prey organisms NMFS will discuss with the ALWTRT related to right whale foraging for requested that NMFS investigate the the results of any projects that study degree to which vessel anchoring habitat characterization and predictive right whale behavior and their use of the modeling. See response to Comment systems pose a risk to whales. For water column. example, according to the commenter, 307. Comment 297: One commenter urged Comment 299: Several commenters in 2003, a humpback whale in NMFS to consider right whale foraging suggested NMFS research humpback Stellwagen Bank National Marine research, specifically the and finback whale foraging, given they Sanctuary was entangled in a small boat recommendations from the Northern feed on different prey items than right anchoring system. Additionally, Gulf of Maine Foraging Workshop. The whales. One commenter said that more commenters stated that two humpback commenter stated a need to understand whale research is needed to identify whales were disentangled from if large whales forage in rocky and tidal foraging areas, the availability of food, anchors—one gillnet and one vessel areas before requiring the investment in how it affects whales, migration anchoring system. These commenters new gear. patterns, and feeding habitats. stated that NMFS does not consider Response: NMFS agrees that more Response: NMFS agrees and anchoring systems as a risk. information must be collected on large continues to conduct research, as well Response: Anchoring systems have whale foraging behavior in rocky and as support research conducted by NMFS been recognized by NMFS as a risk to tidal areas and some of this information partners, on all the above mentioned large whales and have been addressed is currently being gathered. For topics. by requiring sinking line on lines example, Maine DMR is working with a Comment 300: One commenter leading from gillnets to the anchor. The number of whale research organizations suggested that NMFS work with Maine anchoring systems of small recreational to gather zooplankton data along the DMR to periodically review whale vessels in pursuit of fin fish in areas like coast of Maine to help determine if right foraging and distribution and other Stellwagen Bank National Marine whales may be foraging there. Once sources of mortality. Sanctuary are not captured in the these data are collected and analyzed, Response: NMFS agrees and will ALWTRP process. See response to the resulting information will be continue to work with Maine DMR and Comment 237 for information on the presented to the ALWTRT. At the other entities, including the ALWTRT, management of marine mammal present time, for both right and to study and review factors affecting interactions with recreational fisheries. humpback whales, serious injuries and whale foraging, distribution, and other Comment 295: One commenter states mortalities resulting from interactions sources of mortality. that NMFS should require all vessel with commercial fishing gear regulated Comment 301: One commenter anchoring systems to be brought back to under the ALWTRP continue to occur, suggested using humpback whales as the dock and not left unattended. and PBR has been exceeded. PBR for the proxies for right whales when testing Response: NMFS is considering future North Atlantic stock of right whales is new technology because of the larger rulemaking to address vertical line and set at zero and for the Gulf of Maine population (i.e., permitting may be will be discussing these issues with the stock of humpback whales, PBR is set at easier). ALWTRT at the next meeting. NMFS 1.3 (Waring et al., 2006). Therefore, Response: As indicated in the FEIS for will discuss the practice of vessel NMFS is required to take additional the SAM interim final rule (67 FR 1142,

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

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will then be provided to the full gear modifications. NMFS has gear (2006) and/or Cole et al., (2006). Data ALWTRT. See also response to laboratories and research teams that the commenter cites may not have been Comment 305. The ALWTRT is specifically focus on gear development available when the DEIS was originally composed of a wide variety of and testing, incorporating tides, sea formulated; the report would have since participants from many different conditions, weather conditions, load been incorporated into current analyses backgrounds, including state and federal cell data, and the size/and or weight of where feasible. See Comment 4. managers, scientists, the fishing gear into their analyses. Additionally, Comment 313: One commenter stated industry, environmentalists, fishery NMFS contracts with researchers, that the DEIS does not address the management organizations, and more. individuals and companies to develop remotely operated vehicle (ROV) At each meeting, the ALWTRT is briefed gear solutions. research conducted in Maine. with the most recent available NMFS agrees that it would be useful Response: NMFS has added text to information on a variety of topics, to determine how whales directly Chapter 5 in the FEIS to address this including the species managed by the interact with fishing gear. However this research. ALWTRP, as well as information about would be difficult research to conduct Comment 314: One commenter asked the fisheries that are regulated under the without endangering right whales if NMFS is assuming that entanglement ALWTRP. The Status Report further, and is thus, not particularly risks occur solely during foraging since Subcommittee is the avenue by which tractable at this time. research on other cetacean behavior and ALWTRP monitoring will be discussed. Comment 309: One commenter stated entanglement risks is not suggested. Comment 307: One commenter that there needs to be more research Response: While the nature of suggested combining the results of done to examine appropriate gear foraging behavior is consistent with the whale-related and gear-related research. modifications when necessary. mouth entanglements recorded, NMFS The commenter encouraged further Response: See response to Comment does not assume this is the only research on the seasonal distribution of 306. cetacean behavior that leads to buoy lines and the number of traps Comment 310: One commenter entanglements. The potential for fished per buoy as well as the seasonal suggested that NMFS research include entanglement as a result of different distribution of whale sightings and their exempted areas. behaviors is suggested by both the prey (i.e., look at the probability of how Response: NMFS is working with diverse geographic locations in which these overlap in real time). states to help monitor exempted areas. entanglements occur (see Chapter 4 of Response: This is an area that both Based on analysis of sightings data, the EIS) and the parts of the whale on NMFS and the ALWTRT are interested NMFS understands that large whales which gear or scarring are found (see in exploring. NMFS is presently may occasionally be reported in Chapter 2 of the EIS). supporting an analysis that is examining exempted waters such as bays and Comments on Economic and Social the seasonal and temporal distribution harbors, but believes that these Impacts (of the ALWTRP) of vertical lines for all trap/pot and occurrences are rare. If, in the future, gillnet fisheries. In addition, much right whales are more frequently reported in Comment 315: Several commenters whale research is being conducted and exempted waters, NMFS and the suggested that the government issue supported by NMFS at this time. NMFS’ ALWTRT will reevaluate the exemption grants to fishermen to help defray costs NEFSC is currently conducting research lines for those particular areas to and replace old gear. to ultimately compare the density of determine whether changes are needed. Response: NMFS understands that fishing gear to the density of whales to Comment 311: One commenter there are costs associated with develop a better picture of potential requested that NMFS develop a converting gear to become compliant overlap. Ecological work is also being prioritization scheme for granting with the new ALWTRP requirements. carried out in the Great South Channel scientific research permits that address To date, NMFS has supported two to see how right whales are interacting critical bycatch, entanglement, or other floating groundline gear exchange with the sea floor; results will help conservation needs. programs, and their purpose was to NMFS gain a better understanding of Response: NMFS recognizes the provide financial aid to commercial whale interactions with fixed fishing concern, however, it is not within the fishermen to replace their floating gear. Right whale foraging research is scope of this final rule. groundline with sinking and/or also being conducted and forms the Comment 312: One commenter neutrally buoyant groundline. The first foundation of critical habitat analyses questioned a NMFS study that indicated took place in 2004 and early 2005 and currently being preformed by NMFS. that more than 90 whales were killed included participation from Once these analyses are finalized, the between the early 1990s and 2002. The Massachusetts-licensed inshore lobster results will be compiled and distributed commenter asked what the cause of trap/pot fishermen. The second took to the ALWTRT. These results will then death was in each case and specifically place in January 2006 and sought the be used by NMFS and the ALWTRT whether any were linked to lobster participation of state and/or federally when discussing different management fishing because the study mentions ship licensed commercial trap/pot fishermen options that can be used to reduce strikes as cause of death. The in New Jersey, Delaware, Maryland, entanglement risk associated with commenter also requested a breakdown Virginia, and North Carolina. vertical lines. by year to determine whether there is an Approximately $200,000 was spent Comment 308: Commenters urged upward or downward trend during the replacing floating groundline with NMFS to do more research on: (1) reporting period. The commenter stated sinking and/or neutrally buoyant Fishing gear that works reliably and that data from 2003–04 are not groundline in the Mid-Atlantic. Both safely, under all weather conditions; presented, so it is difficult to determine programs involved the collection of and (2) how whales interact with fishing if current steps taken by fishermen are actively fished floating groundline and gear in order to know what kind of gear working since not enough time has the issuance of vouchers that fishermen will keep whales free of entanglement. elapsed. used toward the purchase of sinking Response: NMFS is committed to gear Response: For updated and complete and/or neutrally buoyant groundline. A research and development and will reports on large whale mortality similar floating groundline exchange continue to develop reliable and safe estimates, NMFS suggests Waring et al., program is underway for state and

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

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

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that may be required to convert gear. government that supports them is defrayed, in part, by current and future Although costs are high for some coming to them with alternatives that groundline buyback programs operated vessels, NMFS made modifications to would severely impact, if not end, their by NMFS and other partners. In the final rule, based on public comment, way of life. The commenter said that addition, although the requirements to decrease costs where possible while Coastal Maine and coastal communities under Alternative 6 Final (Preferred) still meeting its goals under the MMPA depend on the lobster fishery as part of may impose significant costs within the and ESA (see Changes from the their heritage and culture, as well as an first year after publication of the final Proposed Rule section of the preamble). economic base and there is nothing that rule (to convert all groundline to sinking While these vessels may still realize can take its place. and/or neutrally buoyant groundline), high costs relative to revenues, the Response: NMFS acknowledges the fishermen may be able to distribute the impacts of converting to sinking and/or economic importance of the lobster cost of the new gear over its useful life neutrally buoyant groundline may be industry and has attempted to by seeking a loan. defrayed, in part, by current and future characterize the harvest and processing Comments on Other Species groundline buyback programs operated sectors accurately in the EIS. The by NMFS and other partners. In specific source of the commenter’s $500 Comment 333: One commenter states addition, although the requirements million figure is uncertain, but the that NMFS has not looked at the under Alternative 6 Final (Preferred) estimate is not unreasonable given ex- impacts on other species and has little may impose significant costs within the vessel revenues and the regional basis to assume humpbacks, finbacks, first year after publication of the final economic contribution of industries that and minke whales would benefit. The rule (to convert all groundline to sinking depend on fishing. However, the commenter states that right whales, and/or neutrally buoyant groundline), ALWTRP modifications contained in which have different prey requirements, fishermen may be able to distribute the the final rule are not likely to have the are the main target of conservation. This cost of the new gear over its useful life severe implications suggested by the leads to different feeding and by seeking a loan. After the first year, commenter. While costs may be high for distribution, which may also lead to ongoing costs would be significantly some vessels, the compliance costs are different conservation needs. The lower as fishermen would only need to generally commensurate with revenues, commenter believes NMFS should not replace worn-out and lost gear. i.e., costs as a percent of revenue are not rely on closures and gear modifications Comment 330: One commenter said prohibitive. Chapter 7 identifies vessel that only protect right whales because that NMFS needs to think about social segments that may be heavily impacted the agency may omit areas that are and economic impact to fishermen by the requirements and suggests that important to other large whale species. themselves, including the cost to change under Alternative 6 Final (Preferred), a Response: The ALWTRP is designed things around for fishermen and the limited number of small vessels are to reduce the risk of mortality and social and economical factors going on. most at risk. As a result, harvest levels serious injury to large whales (right, Response: NMFS is sensitive to the are unlikely to change and related humpback, and fin whales), with costs of complying with this final rule industries (e.g., processing) are benefits to non-endangered minke and has characterized the economic and not likely to be affected. whales, due to interactions with social impacts in the FEIS. Chapter 7 of Comment 332: One commenter was commercial fishing gear. The ALWTRP the EIS identifies vessel segments that concerned about the economic impacts focuses on reducing entanglements of may be heavily affected by the of changing over from either neutrally critically endangered North Atlantic requirements and suggests that under buoyant rope or going to all sink rope. right whales, whose population contains Alternative 6 Final (Preferred), a limited The commenter recently bought approximately 300 animals. NMFS number of small vessels are most at risk. neutrally buoyant rope for $1.85/pound established the areas and seasons being As a result, harvest levels are unlikely and does not understand where NMFS implemented in this final rule by to change and related industries (e.g., got $3,500 per boat cost. A few analyzing databases that included right, seafood processing) are not likely to be commenters believed that cost is too humpback, and fin whale sightings. affected. Although costs are high for low, and that money spent on NMFS believes that the gear some vessels, NMFS made groundlines alone will be over $20,000. modifications being implemented, modifications to the final rule, based on Response: The per-vessel cost cited especially the requirement to use public comment, to decrease costs ($3,500) is the average across a variety sinking and/or neutrally buoyant where possible while still meeting its of vessel size classes and is an groundline, will benefit all large whale goals under the MMPA and ESA (see annualized figure; that is, it represents species by reducing entanglement risk Changes from the Proposed Rule section the sum of annualized initial investment of commercial fishing gear. In the of the preamble). While some vessels costs and annual maintenance costs. future, NMFS will re-evaluate the may still realize high costs relative to Consistent with the comment, the lump ALWTRP with the ALWTRT if revenues, fishermen have some options sum initial investment for most lobster information becomes available to try to mitigate these costs. For vessels will be higher than annualized indicating that the measures being example, the impacts of converting to costs. Although costs are high for some implemented in this final rule are sinking and/or neutrally buoyant vessels, NMFS made modifications to ineffective. groundline may be defrayed, in part, by the final rule, based on public comment, Comment 334: One commenter stated current and future groundline buyback to decrease costs where possible while that there is an increase in lobster effort programs operated by NMFS and other still meeting its goals under the MMPA (800 in 1996 and 1400 today) and gear partners. and ESA (see Changes from the conflicts, and a decrease in Comment 331: One commenter said Proposed Rule section of the preamble). abundance due to expanded ; that it has been estimated recently that While these vessels may still realize therefore, there are fewer humpbacks, the economic benefit of the lobster high costs relative to revenues, finbacks, and minke whales in Maine fishery in Maine is 500 million dollars. fishermen have some options to try to according to an article published in This commenter stated that it was ironic mitigate the costs. For example, the ‘‘Fisherman’s Voice,’’ April 2005. that the fishermen were a week away impacts of converting to sinking and/or Response: The information provided from paying taxes and the same neutrally buoyant groundline may be in the article in ‘‘Fisherman’s Voice’’

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with respect to large whales off the coast exemption waters in final preferred USCG personnel will be unable to of Maine is anecdotal. NMFS does not alternative, NMFS believes the risk of determine the breaking strength of any estimate the local abundance of gear to large whales in the exempted type of weak link unless the breaking humpback, fin, and minke whale areas is minimal. However, NMFS will strength is clearly indicated by the populations so it is difficult to continue to monitor all exempted areas, manufacturer. determine the local abundance of these and encourage states to develop Response: NMFS believes that the species off the coast of Maine. For contingency plans for large whales in weak link requirements are enforceable. further information on these species, these areas. Should new information In the regulations, NMFS references a please see the SAR (Waring et al., 2006). become available that indicates that a brochure that outlines the weak link Comment 335: One commenter change in the inshore or deep water techniques currently approved to assist believed that the take levels for some exemption areas is warranted, NMFS in compliance with and enforcement of whale species are so low that they could will share the information with the the regulations, and specifies how to not be achieved. This commenter ALWTRT and take appropriate action. obtain the brochure. NMFS has worked believed, therefore, that any takes Comment 338: One commenter with the USCG in the past to provide resulting from whale entanglements in requested that NMFS define ‘‘weighted training and tools for enforcement fishing gear would lead to more device’’ for enforcement purposes (i.e., efforts. NMFS will continue to provide stringent fishery regulations. ‘‘include a weak link on all flotation necessary additional training and tools Response: Under section 118 of the and/or weighted devices attached to the to the USCG to support enforcement of MMPA, NMFS is required to meet both buoy line’’). the short and long-term take reduction Response: NMFS agrees and has the ALWTRP. plan goals of reducing serious injury or modified the regulatory text to identify Comment 342: NMFS received one mortality from commercial fishing acceptable ‘‘weighted devices’’. For comment regarding the definition of operations. The short-term goal is to example, a weighted device includes tending/anchoring/weak links on page reduce serious injury or mortality to window weights, but does not include 35927, (ii)(c), of the proposed rule (70 below PBR, while the long-term goal is traps/pots, gillnets, anchors, or leadline FR 35894, June 21, 2005). This section to achieve a level that is approaching a woven into buoyline. states that all gillnets must return to zero mortality and serious injury rate Comment 339: One commenter does port with the vessel unless the gear (i.e., ZMRG). Due to the continued not support the definition of a set meets the required specifications. The entanglements of large whales in gillnet, which is considered an commenter states that a USCG officer commercial fishing gear, NMFS is anchored gillnet, and suggests a has no way of determining whether in- required to take additional action to definition of a set gillnet as ‘‘any gillnet situ gear is in compliance with weak further reduce the entanglement risk that is weighted, but does not have an link or anchoring requirements. To associated with commercial fishing gear. anchor(s) on either end and returns to enforce this, a law enforcement officer NMFS will continue to discuss with the port with the vessel’’. would need to be present during gear set ALWTRT any future modifications that Response: Although various types of or retrieval. Additionally, the will be made to the ALWTRP. gillnets are included in the anchored commenter states that some Comment 336: One commenter states gillnet definition, such as set and stab requirements (e.g., breaking strength) that NMFS has not updated SARs and nets, NMFS recognizes that the nets may may be impossible to determine on entanglement studies for finbacks or be fished in various ways. This issue is scene, undermining the intended effect minke whales. Without scientific of particular relevance in the Mid- of this regulation. Atlantic. NMFS will discuss this with information, the commenter believes Response: Although the ALWTRP the ALWTRT and coordinate with other there is no way to assess impacts of regulations are complex, NMFS believes TRTs that may use this definition under entanglements on these stocks or the they are enforceable. NMFS has worked section 229.2 to determine whether this ALWTRP benefits to them. with the USCG in the past to coordinate type of change to the definition is Response: NMFS recently published during the development of regulations, appropriate. updated SARs for all four of the large and as well as to provide training as Comment 340: One commenter stated whale species affected by the ALWTRP noted in the response to Comment 341. that the proposed definition of wet (Waring et. al., 2006). Information from Additionally, NMFS will work with the storage of gear in the proposed rule at these and earlier SARs has been USCG on a coordinated plan to facilitate paragraph (c)(ii) on page 35922 (70 FR integrated into the FEIS. enforcement of the ALWTRP. 35894, June 21, 2005) is not enforceable Comments on Definitions as currently written. The definition Comment 343: NMFS received one Comment 337: Some commenters specifies that trap or pot gear must be comment regarding the definition of questioned NMFS’ basis for determining hauled out of the water at least once gear requirements on page 35923 (iii)(B) exempted areas. One commenter asked every 30 days. The commenter is of the proposed rule (70 FR 35894, June how ‘‘frequently’’ is defined in the concerned that to prove this portion of 21, 2005), specifically ‘‘No person may DEIS. The commenter specifically the rule, an unsustainable amount of fish with or have available for referenced the DEIS language that states surveillance would be required to immediate use trap/pot gear.’’ The NMFS will re-evaluate exempted areas maintain visual proximity of a commenter suggested clearly defining if right whales are frequently reported particular piece of gear. the term ‘‘available for immediate use’’ inside these areas. Response: Thirty-day soak limits have for law enforcement personnel. The Response: NMFS did not define been enforced. Enforcement actions commenter stated that a good example ‘‘frequently’’ in the DEIS. NMFS based on the 30-day soak limit were is found in enforcement of Turtle believes, based on scientific data, that taken in 10 cases in 2005. Excluder Devices (TEDs), where endangered large whales will rarely Comment 341: NMFS received one shackling the trawl to the doors is venture into bays, harbors, or inlets that comment regarding the definition of indicative of ‘‘available for immediate have been exempted. Based on this, and weak links on page 35922 (ii)(B)(1) of use’’. Without amplifying information, other information provided in Appendix the proposed rule (70 FR 35894, June the commenter believes that arbitrary 3–A of the FEIS related to the 21, 2005). The commenter states that and capricious enforcement may result.

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Response: NMFS agrees and has additional training and tools to the been incorporated into the ALWTRP modified the regulatory text to address USCG to support enforcement of the through past rulemakings. this issue. ALWTRP. Response: The measures described in Comment 344: NMFS received one Comment 346: NMFS received one the DEIS were developed by NMFS comment regarding the definition of comment regarding the definition of through feedback received during ‘‘groundline’’ on page 35923 (5)(ii)(B) of ‘‘night’’ on page 35932 of the proposed meetings with the ALWTRT, as well as the proposed rule (70 FR 35894, June rule (70 FR 35894, June 21, 2005). The through public scoping and comment, 21, 2005). That section states that all commenter suggests changing the not as a result of a section 7 groundlines must be composed entirely definition to ‘‘Night means, with consultation on any Federal action. A of sinking or neutrally buoyant line reference to the regulated waters of section 7 consultation has been unless exempted. The commenter states Georgia and Florida, any time after reinitiated to examine the effects of the that if this line is not labeled as sinking official sunset and before official sunrise Federal lobster fishery, as modified by or neutrally buoyant, it will not be as determined for the date and location the existing ALWTRP and RPA for right recognized as a violation. A USCG in the nautical Almanac, prepared by whales. This consultation is in progress. boarding officer will only see the line the U.S. naval Observatory’’. NMFS has also reinitiated consultation coiled on deck or under strain as it is Response: NMFS proposed definitions on the continued implementation of the in the process of being hauled back or of sunset and sunrise that referenced the Federal summer , scup, and set and neither condition will National Almanac, prepared by the U.S. black sea bass fisheries that are managed demonstrate compliance with the Naval Observatory. However, since under the Summer Flounder, Scup, and regulation. proposing definitions in 50 CFR 229.2 Black Sea Bass FMP, based on new Response: In this final rule, NMFS is for ‘‘sunrise’’ and ‘‘sunset’’, these information that suggested effects to amending the definitions of ‘‘neutrally definitions were added through the listed species as a result of the black sea buoyant line’’ and ‘‘sinking line’’ and is BDTRP (71 FR 24776, April 26, 2006). bass and scup trap/pot fisheries in a clarifying each definition in relation to Thus, the definitions in 50 CFR 229.2 manner or to an extent not previously groundlines and buoy lines. Also, to are as follows: ‘‘Sunrise means the time considered. This consultation is provide a clearer definition of neutrally of sunrise as determined for the date ongoing. NMFS will consider the buoyant and sinking line, NMFS has and location in the Nautical Almanac, provisions of this final rule during developed criteria for establishing a prepared by the U.S. Naval consultation on the continued density standard for neutrally buoyant Observatory;’’ and ‘‘Sunset means the implementation of the Summer and sinking line and used these criteria time of sunset as determined for the Flounder, Scup, and Black Sea Bass to develop the definitions. NMFS will date and location in the Nautical FMP. NMFS will also consider, based finalize a procedure for assessing the Almanac, prepared by the U.S. Naval on the criteria for reinitiating specific gravity of line, which NMFS Observatory.’’ NMFS believes that these consultation (50 CFR 402.16), whether will use in the future to determine modifications will make the ‘‘night’’ formal consultation for the continued whether a manufactured line meets the definition clearer and more enforceable. implementation of the Northeast accepted density standard, through this Comment 347: One comment was Multispecies, Monkfish, and Spiny final action. Additionally, NMFS is received regarding the definition of Dogfish FMPs must be reinitiated as a developing guidance for law special provision for strike nets on page result of the changes to the ALWTRP. enforcement officers on how to evaluate 35929(5)(i)(A) of the proposed rule (70 Section 7 consultations completed June whether line is sinking/neutrally FR 35894, June 21, 2005). This 14, 2001, on the continued buoyant or floating in the field. paragraph states that no nets can be set implementation of these FMPs Comment 345: NMFS received one at night when visibility is less than 500 concluded that the fisheries would comment regarding the definition of yards (457.2 m or 1,500 ft). The jeopardize the continued existence of ‘‘anchoring system’’ on page 35926 commenter believes this would be right whales. An RPA was provided, (ii)(C) of the proposed rule (70 FR subjectively enforced. The commenter and the regulatory components were 35894, June 21, 2005). The commenter recommended less subjective language implemented as part of the ALWTRP. believes the requirement to have a (e.g., ‘‘No nets may be set after official NMFS has determined that the burying anchor is easily enforceable, but sunset as determined for the date and operation of other federally-managed it will be difficult to determine if the location in the Nautical Almanac, fisheries (e.g., HMS, Coastal Pelagics, different types that will be encountered prepared by the U.S. Naval Snapper/Grouper) will not jeopardize will have a holding capacity equal to or Observatory’’). the continued existence of right whales greater than a 22-lb (10.0-kg) Danforth- Response: The regulations require, or any other large whale species style anchor. The commenter suggested amongst other requirements, that no managed under the ALWTRP. providing the USCG with a table that nets are set at night or when visibility Comment 349: One commenter asked identifies all the anchoring systems of is less than 500 yards (1500 ft, 457.2 m). NMFS to discuss the need for additional these types that meet the holding Night is currently defined under 50 CFR ESA section 7 consultations to address capacity requirement. 229.2 as any time between one half hour the potential impacts of the revised Response: NMFS believes that the before sunset and one half hour after ALWTRP on right whales and other anchoring requirements are enforceable. sunset. Through this final rule, NMFS is listed species in the FEIS. In the regulations, NMFS references a defining sunset and sunrise by Response: An informal consultation brochure that outlines how to comply referencing the Nautical Almanac under the ESA was concluded for the with any anchoring requirements to prepared by the U.S. Naval Laboratory. rule to modify the Atlantic Large Whale assist in compliance with and Take Reduction Plan on December 21, enforcement of the regulations, and Clarification Requests for the FEIS 2004. As a result of the informal specifies how to obtain the brochure. Comment 348: One commenter asked consultation, the Regional NMFS has worked with the USCG in the if the RPA measures (developed Administrator determined that the past to provide training and tools for pursuant to ESA section 7) contained in measures to modify the ALWTRP are enforcement efforts. NMFS will the DEIS alter the reasonable and not likely to adversely affect ESA-listed continue to provide any necessary prudent measures that have previously cetaceans, sea turtles, fish, or critical

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habitat that occur within the area frequently weak links have failed to Effects Analysis) that considers various affected by the rulemaking. prevent entanglements in cases for sources of mortality to right whales, Modifications are being made to the which gear was examined. Another including the following sources of ALWTRP by this final rule to more commenter stated that the DEIS leaves mortality: commercial whaling, ship broadly address the incidental a false impression that weak links are strikes, water pollution, noise pollution, entanglement of large whales in fishing known to be effective in reducing climate change, and prey availability. gear that result in serious injury and entanglements and that using such Changes From the Proposed Rule mortality. Some of these modifications devices would reduce bycatch to (e.g., regulating additional trap/pot and required PBR levels. NMFS made the following changes gillnet fisheries under the ALWTRP, Response: NMFS has added from the proposed rule published on requiring the broad-based use of sinking additional clarification in the FEIS on June 21, 2005 (70 FR 35984, June 21, and/or neutrally buoyant groundline) these issues regarding weak links. 2005) to the final rule: are expected to have an effect on ESA- Evidence that weak links help prevent (1) The proposed rule requirement for listed species. However, depending on whale entanglements is discussed in sinking and/or neutrally buoyant the species, all of the effects are Chapter 5, Section 5.1.1.3 of the FEIS. groundline by January 1, 2008, for trap expected to be either beneficial or Section 5.2 discusses impacts on non- pot gear (70 FR 35900, June 21, 2005) negligible. whale species and explicitly and gillnet gear (70 FR 35904, June 21, Comment 350: One commenter said acknowledges that weak links are not 2005) (unless otherwise required in the that on p. 3–6 of the DEIS, the driftnet likely to reduce bycatch of most non- Cape Cod Bay Restricted Area for trap/ provisions needed to be clarified. whale species; only whale species with pot (January 1–May 15) or SAM areas) Response: NMFS has made a variety the size/strength to break weak links are is modified in this final rule to be of edits and clarifications in Chapter 3 likely to benefit from weak link effective twelve months after of the FEIS that may better characterize requirements. publication of the final rule. NMFS proposed changes for driftnet vessels. Comment 354: One commenter states believes that the January 1, 2008, Comment 351: One commenter asked that the DEIS is incorrectly describing deadline will not give fishermen time to NMFS to clarify DEIS pg. 5–40; as the collaborative real and simulated fishing comply with this requirement. commenter detected a contradiction and field tests conducted by fishermen Typically, NMFS provides 30 or 60 days between whale distribution and when and the NMFS gear research team as for fishermen to comply with gear the requirements are required. ‘‘simulated whale entanglements’’. modifications such as mesh size Response: NMFS disagrees. The Response: A search of the entire EIS restrictions and other requirements. alternatives under consideration in the document yielded no instances of the However, as evident by overwhelming DEIS considered whale distribution term ‘‘simulated whale entanglements’’. public comment, given the magnitude of when determining the time periods of However, NMFS did find a discussion the time and resources needed by the requirements. Although whales may in the footnote of Chapter 5 of the DEIS fishermen to change their gear to be present outside a seasonal window, describing NMFS investigations sinking and/or neutrally buoyant the sightings are rare, and the risk of ‘‘simulating an entanglement.’’ NMFS groundline requirement, NMFS believes gear to large whales at these times of the believes that the characterization of the giving fishermen 12 months from the year is minimal. However, NMFS will studies as written is appropriate. publication of the final rule to comply continue to monitor the areas where Comment 355: One commenter is warranted. seasonal requirements are in effect. referenced page 2–39 of the DEIS, in Although the broad-based sinking/ Should new information become which NMFS reports that 9 fatal neutrally buoyant groundline available that indicates that a change in entanglements and 22 live requirement will become effective on seasonal window is warranted, NMFS entanglements of large whales were October 6, 2008 (except in the Cape Cod will share the information with the observed in 2002, after the most recent Bay Restricted Area for trap/pot ALWTRT and take appropriate action. revisions of the ALWTRP. The (January 1–May 15) and expanded SAM See response to Comment 41. commenter requested that NMFS areas), NMFS believes the time frame Comment 352: One commenter states address this in the FEIS, as caveats were allowed for this requirement will not that the hazards to whales and areas of not taken into account in the DEIS. compromise conservation efforts. As most risk need to be clarified. Response: Data on entanglements stated in the proposed rule, NMFS Response: The ALWTRP regulations occurring since the most recent believes that fishermen will begin favor broad-based gear modifications revisions to the ALWTRP have been changing over their gear prior to the over additional special management updated using finalized figures effective date as fishermen replace their areas. Movement and location of whales published in the 2003 Stock Assessment groundline as it naturally wears out and is often difficult to predict with Report (Waring et al., 2006). Apart from due to previous or planned groundline certainty. However, as NMFS continues the general caveats applying to all exchange programs. to conduct rulemaking to achieve the entanglement information, additional The early changeover is also likely to goals of the ALWTRP, special caveats are no longer appropriate. continue particularly in the northeast as management areas could be defined in Comment 356: One commenter states fishermen respond to gear modifications the future. that the DEIS does not provide the required by the implementation of SAM Comment 353: Some commenters history or context of right whale status and DAM programs, which require urged NMFS to include a discussion in relative to federal efforts to protect seasonal or temporary use of non- the FEIS about the effectiveness of weak whales and fails to consider cumulative floating groundline. For example, some links because they are treated as an effects of all sources of mortality on fishermen may choose to fish with SAM important risk reducing element, but right whales. and/or DAM compliant gear year round, effectiveness is still unclear. One Response: NMFS disagrees. The DEIS or at least during the months when SAM commenter states that in the DEIS, and FEIS provide a status of right areas are in effect and DAM zones are NMFS indicates the agency believes whales (Chapter 4—Affected most likely to be triggered, rather than weak links might work, but does not Environment), as well as a cumulative having to change their gear over when provide data or analysis on how effects analysis (Chapter 9—Cumulative a SAM area is effective or remove it

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

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

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

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(15) This final rule also incorporates The objective of this final rule, issued regulated area boundaries, extend the the modifications to the Southeast U.S. pursuant to section 118 of the Marine scope of the ALWTRP regulations out to Restricted Area implemented through a Mammal Protection Act (MMPA), is to the eastern edge of the EEZ, and expand recent ALWTRP final rule (72 FR 34632, reduce the level of serious injury and and clarify the areas exempted from the June 25, 2007). These modifications mortality of right, humpback, and fin plan. The incremental costs that include revised management measures whales in commercial east coast trap/ Alternative 2 would impose on the and boundaries for this management pot and gillnet fisheries. The key commercial fishing industry range is area, as well as associated changes to fisheries affected by this final rule estimated to be approximately $19.2 the regulations. Consequently, portions include the American lobster trap/pot million per year. NMFS concluded that of the Mid/South Atlantic Gillnet fishery, other trap/pot fisheries, and the potential for entanglement of whales Waters (i.e., waters within 35 nm (64.82 gillnetting operations. ALWTRP in Mid-Atlantic or South Atlantic waters km) of the South Carolina coast) will be requirements could also potentially during summer months is minor, and included in the Southeast U.S. affect seafood dealers and processors as that year-round requirements, as Restricted Area from November 15 well as fishing gear manufacturers, proposed by this alternative, would through April 15, during the right whale suppliers, and marina operators. offer a marginal risk reduction benefit to calving season. Also, based on the However, data are not readily available large whales. Seasonal implementation modifications to the June 25, 2007 final on the latter sectors, so the analysis does of gear conversion requirements, instead rule (72 FR 34632), NMFS will not be not examine them in detail. of year-round gear modifications, would making the proposed regulatory changes There were six alternatives also reduce compliance costs for related to the straight set and strikenet considered to modify the ALWTRP, fishermen without increasing risks to definitions in this final rule. including a status quo (no action whales. Furthermore, this final rule will not add alternative), two preferred alternatives, 3. Alternative 3, which was identified the straight set definition based on the and three other alternatives. The final as one of two preferred alternatives in deletion of the associated strikenet preferred alternative is a modification to the proposed rule, would implement all definition in the June 25, 2007 final rule one of the original preferred of the requirements included in (72 FR 34632). alternatives. All alternatives to the final Alternative 2, except that the rule, except for the status quo (no action requirements for Mid- and South (16) NMFS proposed definitions in ° ′ § 229.2 for ‘‘sunrise’’ and ‘‘sunset’’; alternative), were evaluated using model Atlantic waters south of 40 00 N. lat. vessels, each of which represents a would be seasonal rather than year- however, since that time, these ° ′ definitions were added through the group of vessels that share similar round. Waters north of 40 00 N. lat. Bottlenose Dolphin Take Reduction operating characteristics and would face would be subject to ALWTRP gear similar requirements under a given modifications year-round. The Plan (71 FR 24776, April 26, 2006). regulatory alternative. A summary of the incremental costs that Alternative 3 Thus, these definitions are not included analysis follows: would impose on the commercial in this action. 1. Under Alternative 1, NMFS would fishing industry is similar to costs under Classification continue with the status quo, i.e., the Alternative 2 (approximately $19.2 baseline set of ALWTRP requirements million per year). NMFS rejected this This final rule has been determined to currently in place. This would result in alternative as it did not provide be significant for the purposes of no changes to the current measures immediate protection to right whales by Executive Order 12866. under the ALWTRP and, as such, would offering an expanded SAM zone with This final rule identifies measures to result in no additional economic effects sinking and/or neutrally buoyant reduce the risk of serious injury or on the fishing industry. This alternative, groundline requirements to protect mortality from entanglement of large however, would not achieve the predictable aggregations of right whales. whales under the ALWTRP. A DEIS was required reduction in incidental 4. NMFS considered and rejected prepared for the proposed rule and was mortality and or serious injury of large Alternative 4, which consisted of all of finalized based on the changes made whales in commercial fishing gear, nor the gear modifications included in from the proposed to final rules. NMFS meet the requirements of the ALWTRP, Alternative 2, except that the considered six alternatives for this final thus NMFS rejected this alternative. requirements for South Atlantic waters rule; the final preferred alternative is 2. NMFS considered and rejected south of the South Carolina/Georgia recognized and justified in the FEIS. Alternative 2, which would implement border would be seasonal rather than As required by the Regulatory broad-based, coast-wide gear year-round. Waters north of this border Flexibility Act, NMFS prepared a Final modifications year-round for all Atlantic would be subject to ALWTRP gear Regulatory Flexibility Analysis (FRFA) fisheries regulated by the ALWTRP. modifications year-round. The for this final rule. The FRFA These gear modifications would incremental costs that Alternative 4 incorporates a summary of the include: The use of weak links on all would impose on the commercial significant issues raised by the public flotation devices; discontinuing the fishing industry is similar to costs under comments in response to the Initial SAM and DAM programs and requiring Alternative 2 and 3 (approximately Regulatory Flexibility Analysis (IRFA), the use of entirely sinking and/or $19.2 million per year). This alternative and NMFS responses to those comments neutrally buoyant groundline effective was rejected because NMFS concluded provided elsewhere in the preamble to 12 months after publication of the final that the potential for entanglement of this final rule, and a summary of the rule; the use of weak links and whales in Mid-Atlantic waters during analyses completed to support the final anchoring systems for gillnets; and summer months is minor, and that year- action. A copy of this analysis for this implementing new gear marking round requirements, as proposed by this final rule is available from NMFS (see requirements for buoy lines. This alternative, would offer a marginal risk ADDRESSES). Cost and benefit estimates alternative would also cover several reduction benefit to large whales. were developed and examined for six new fisheries under the ALWTRP Seasonal implementation of gear regulatory alternatives, including a regulations that use gear similar to gear conversion requirements, instead of status quo (no action alternative). A used by those fisheries already subject year-round gear modifications, would summary of the FRFA follows: to the regulations, redefine some of the also reduce compliance costs for

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

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changes, including: (1) Expanding is necessary for the proper performance York, and North Carolina conditionally exempted waters off of Maine and Long and function of the agency, including: concurred with NMFS’ conclusion that Island Sound; (2) allowing anchored The practical utility of the information; the proposed action is consistent with gillnet vessels to use an alternate weak the accuracy of the burden estimate; the the enforceable policies of the approved link configuration; and (3) allowing opportunities to enhance the quality, coastal management program for that anchored gillnet vessels operating utility, and clarity of the information to state; however, the North Carolina within 300 yards (900 ft or 274.3 m) of be collected; and the ways to minimize conditional concurrence was treated as the shoreline of North Carolina to use an the burden of the collection of an objection because NMFS could not alternate anchoring configuration. These information, including the use of meet the state agency’s conditions. and other minor variations decrease the automated collection techniques or The Connecticut Department of number of affected vessels and result in other forms of information technology. Environmental Protection and New reductions in compliance costs, while Send comments regarding this burden York State Department of sacrificing little in terms of estimate, or any other aspect of this data Environmental Conservation concurred entanglement risk reduction. collection, including suggestions for with NMFS’ determination that the The small entities affected by this reducing the burden, to NMFS (see amendments to the ALWTRP are final rule are commercial trap/pot and ADDRESSES) and by e-mail to consistent to the maximum extent gillnet fisherman operating in Northeast [email protected], or fax to practicable with the enforceable policies Atlantic, Mid-Atlantic, and Southeast 202–395–7285. of the states’ Coastal Management Atlantic waters. The analysis of the final This collection of information Programs provided that NMFS adopt the preferred alternative identified requirement applies to a total of 2,695 modifications recommended by the approximately 4,350 vessels that would newly affected vessels, including 64 Connecticut Marine Fisheries Division. be affected by this final rule (this model vessel types. Model vessel types The recommended modifications number does not include Southeastern were developed for gillnet fisheries, included an adjustment of the proposed U.S. Atlantic shark gillnet vessels, as the lobster trap/pot fisheries, and other ALWTRP exempted line for Long Island analysis for this action concluded that trap/pot fisheries. Total burden hours Sound. Without this adjustment, the these vessels would not incur for all newly affected vessels is 40,702 Connecticut Department of significant compliance costs). over three years or 13,567 per year. Environmental Protection indicated that In the lobster trap/pot fishery, Total cost burden for all newly affected the proposed action would create an approximately 2,900 vessels would be vessels is $26,863 over three years or unjustified economic hardship on the affected. The analysis identified 11 $8,954 per year. For more information, Connecticut fishing industry, as there is vessel segments that can be considered please see the PRA submission an absence of whale interactions in this ‘‘heavily affected’’, where estimated associated with this rulemaking. area. This final rule adopts the compliance costs exceeded 15 percent Any information collection modifications suggested by the of average annual revenues. Nearly all of requirements subject to PRA and related Connecticut Marine Fisheries Division these segments are composed of smaller to VMS requirements in the U.S. and New York State Department of (Class I or Class II) vessels, which Southeast Atlantic shark gillnet fishery Environmental Conservation; therefore, typically have a smaller revenue base were addressed in a previous in accordance with 15 CFR 930.4(a)(2), with which to absorb compliance costs. rulemaking (69 FR 51010, August 17, the final rule was modified pursuant to Seven of these segments represent 2004) and approved by OMB under the state agency’s conditions that allow lobster/trap vessels. control number 0648–0372. Fishermen the state agency to concur with the Approximately 1,980 other vessels fell will not incur any additional costs as Federal action. into the ‘‘at-risk vessel’’ category, where they currently have all the equipment The NCDCM also conditionally estimated compliance costs were required to comply with the reporting concurred with NMFS’ determination between 5 and 15 percent of average requirements. that the proposed action is consistent to annual revenues. The majority of at-risk Notwithstanding any other provision the maximum extent practicable with vessels are Class II lobster vessels; of of the law, no person is required to the enforceable policies of North these, the most affected subsets are respond to, nor shall any person be Carolina’s coastal management program. vessels in Maine, which are estimated to subject to a penalty for failure to comply NCDCM was concerned that the have greater gear loss costs. A variety of with, a collection of information subject proposed action would adversely affect other vessels fall in the at-risk range, to the requirements of the PRA, unless the public’s ability to conduct including northern nearshore lobster that collection of information displays a recreational and/or commercial fishing, vessels, several categories of other trap/ currently valid OMB Control Number. causing safety hazards as well as pot vessels (e.g., black sea bass, hagfish, NMFS has determined that this final economic and operational burdens. red crab), and Class I gillnet vessels in action is consistent to the maximum Thus, NCDCM offered three conditions the Mid-Atlantic. extent practicable with the approved that the agency would have to adopt in This final rule contains collection of coastal management program of the U.S. order to be consistent with North information requirements subject to the Atlantic coastal states. The proposed Carolina’s coastal management program. Paperwork Reduction Act (PRA), rule, RIR, RFA analysis, and DEIS were First, NCDCM recommended that the because of the proposed gear marking submitted to the responsible state mid-Atlantic gillnet restriction season scheme. The proposed collection of agencies for review under section 307 of from December 1 through March 31 of information requirement was submitted the Coastal Zone Management Act any year should not be expanded to the to the Office of Management and Budget (CZMA). The following states agreed proposed period of September 1 through (OMB) for approval, and is still under with NMFS’ determination: New May 31. Alternatively, NCDCM review. Once the information collection Hampshire, Rhode Island, New Jersey, suggested that, if the season is has been approved, NMFS will publish Pennsylvania, Delaware, Virginia, South expanded, the inshore small mesh a Federal Register notice providing the Carolina, Georgia, and Florida. Maine, gillnet fishery (<5 inches (0.1 m), 300- OMB approval control number. Public Massachusetts, and Maryland did not yard (274.3 m or 900 ft) maximum set) comment was sought regarding whether respond, therefore, consistency is be allowed to use deadweight anchors this proposed collection of information inferred. Three states, Connecticut, New on the inshore end of the net and

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Danforth-style anchors with a minimum determination that the proposed that these states concur with the finding weight of 8 lb on the offshore end. measures are consistent to the that the proposed regulations for Second, NCDCM required that the maximum extent practicable with North amending the ALWTRP were consistent proposal to implement the mandatory Carolina’s Coastal Management with fundamental federalism principles use of sinking and/or neutrally buoyant Program. and federalism policymaking criteria. groundline on pots/traps be replaced This final rule contains policies with An informal consultation under the with an alternative for reducing the federalism implications as that term is ESA for this final rule to modify the profile of the groundline, such as defined in Executive Order 13132. ALWTRP was concluded on December weaving sections of lead core line in the Accordingly, the Assistant Secretary for 21, 2004. As a result of the informal groundlines currently in use. Third, in order to be found consistent Legislative and Intergovernmental consultation, the Regional with North Carolina’s coastal Affairs at the Department of Commerce Administrator determined that the management program, NCDCM required provided notice of the DEIS and measures to modify the ALWTRP are that the gear marking requirement of the proposed rule to the appropriate not likely to adversely affect ESA-listed ALWTRP be consistent with those official(s) of affected state, local, and/or cetaceans, sea turtles, fish, or critical already implemented by other protected tribal governments. Two letters were habitat that occur within the area species take reduction plans and/or sent to officials in Maine, New affected by the rulemaking. Regional Fishery Management Council Hampshire, Massachusetts, Rhode Modifications are being made to the or NMFS FMPs for oceanic waters. Island, Connecticut, New York, New ALWTRP to more broadly address the This final rule adopts an optional Jersey, Pennsylvania, Maryland, incidental entanglement of large whales anchoring requirement, and also Virginia, Delaware, North Carolina, in fishing gear that result in serious considers gear marking requirements by South Carolina, Georgia, and Florida, injury and mortality. Some of these other take reduction or fishery requesting a review of the DEIS and modifications (e.g., regulating additional management plans as suggested by proposed rule as the proposed trap/pot and gillnet fisheries under the NCDCM. However, this final rule does amendments could have a direct impact ALWTRP, requiring the broad-based use not allow for a low profile groundline on the State. The purpose of these of sinking and/or neutrally buoyant option. Thus, NMFS did not meet all the proposed amendments and their groundline) are expected to have an state agency’s conditions. Therefore, components were outlined, and a effect on ESA-listed species. However, pursuant to 15 CFR 930.4, the justification for the proposed rule was depending on the species, all of the requirements of paragraphs (a)(1) provided to each state through these effects are expected to be either through (3) were not met, and the letters. No concerns were raised by the beneficial or negligible. NCDCM no longer concurs with the states contacted; hence, NMFS will infer BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C Clapham. 2005. Fishing gear involved in RFMRP. 2005. Marine mammal abundance References entanglements of right and humpback survey for North Atlantic right whales in the whales, Marine Mammal Science, 21(4): 635– New York Bight and the Mid Atlantic region. Baumgartner, M.F. and B.R. Mate. 2005. 645. Summer and fall habitat of North Atlantic Riverhead Foundation for Marine Research Keller, C.A., L.I. Ward-Geiger, W.B. Brooks, right whales (Eubalaena glacialis) inferred and Preservation. Draft report to the National C.K. Slay, C.R. Taylor, and B.J. Zoodsma. from satellite telemetry, Canadian Journal of Fish and Wildlife Foundation. 28 pp. 2006. North Atlantic Right Whale Aquatic Science, 62: 527–543. Waring, G.T., E. Josephson, C.P. Fairfield, Clapham, P.J. and R.M. Pace, III. 2001. Distribution in Relation to Sea-Surface and K. Maze-Foley (eds.), U.S. Atlantic and Defining triggers for temporary area closures Temperature in the Southeastern United Gulf of Mexico marine mammal stock to protect right whales from entanglements: States Calving Grounds. Marine Mammal assessments—2005, NOAA Technical Science, 22(2): 426–445. issues and options. Northeast Fisheries Memorandum NOAA–NE–194, 2006. Science Center Reference Document 01–06. Mate, B.R.; Nieukirk, S.L.; and S.D. Kraus. April 2001. 1997. Satellite-monitored movements of the List of Subjects Cole, T., D. Hartley, and M. Garron. 2006. northern right whale, Journal of Wildlife Mortality and Serious Injury Determinations Management, 61(4). 50 CFR Part 229 for Baleen Whale Stocks along the Eastern Merrick, R.L. 2005. Seasonal management Seaboard of the United States, 2000–2004. areas to reduce ship strikes of northern right Administrative practice and Northeast Fisheries Science Center Reference whales in the Gulf of Maine. U.S. Department procedure, Confidential business Document 06–04. pp. 26. of Commerce, Northeast Fisheries Science information, Fisheries, Marine DeAlteris, J., A. Fridman, D. Williams, and Center Reference Document 05–19; 18 pp. mammals, Reporting and recordkeeping J. Guimond. 2002. Estimation of the Tractive NMFS. 2002. Large Whale Gear Research requirements. Force of the Northern Right Whale Summary. Prepared by the Gear Research (Eubalaena glacialis). Revised final report Team, National Marine Fisheries Service, 50 CFR Part 635 submitted to the National Marine Fisheries Northeast Regional Office. Service, Northeast Region Protected NMFS. 2004. Draft Environmental Impact Fisheries, Fishing, Fishing vessels, Resources Division, Gear Research Team. Statement on the Proposed Rule to Amend Foreign relations, Imports, Penalties, Johnson, A.J., G.S. Salvador, J.F. Kenney, J. the Atlantic Large Whale Take Reduction Reporting and recordkeeping Robbins, S.D. Kraus, S.C. Landry, and P.J. Plan. Northeast Region. requirements, Treaties.

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50 CFR Part 648 trap trawl, and, with reference to gillnet § 229.3 Prohibitions. Fisheries, Fishing, Reporting and gear, means a line connecting a gillnet * * * * * recordkeeping requirements. or gillnet bridle to an anchor or buoy (h) It is prohibited to fish with or line. possess trap/pot gear in the areas and Dated: September 21, 2007. * * * * * during the times specified in § 229.32 Samuel D. Rauch III, Neutrally buoyant line means, for (c)(2) through (c)(9) unless the trap/pot Deputy Assistant Administrator for both groundlines and buoy lines, line gear complies with the marking Regulatory Programs, National Marine requirements, closures, modifications, Fisheries Service. that has a specific gravity greater than or equal to 1.030, and, for groundlines and restrictions specified in I For the reasons set out in the only, does not float at any point in the § 229.32(b)(2)(ii), (b)(2)(iii), and (c)(1) preamble, 50 CFR parts 229, 635, and water column (See also Sinking line). through (c)(9), or unless the gear is 648 are amended to read as follows: stowed as specified in § 229.2. * * * * * (i) It is prohibited to fish with or PART 229—AUTHORIZATION FOR Sinking line means, for both possess anchored gillnet gear in the COMMERCIAL FISHERIES UNDER THE groundlines and buoy lines, line that areas and during the times specified in MARINE MAMMAL PROTECTION ACT has a specific gravity greater than or § 229.32(d)(2) through (d)(7) unless that OF 1972 equal to 1.030, and, for groundlines gillnet gear complies with the marking I 1. The authority citation for 50 CFR only, does not float at any point in the requirements, closures, modifications, part 229 continues to read as follows: water column (See also Neutrally and restrictions specified in buoyant line). § 229.32(b)(2)(ii), (b)(2)(iii), and (d)(1) Authority: 16 U.S.C. 1361 et seq.; § 229.32(f) also issued under 16 U.S.C. 1531 * * * * * through (d)(7), or unless the gear is et seq. Stowed means traps/pots and gillnets stowed as specified in § 229.2. that are unavailable for immediate use (j) It is prohibited to fish with or I 2. In § 229.2, the definitions of and further, all gillnets are stored in possess drift gillnet gear in the areas and ‘‘Lobster trap’’ and ‘‘Lobster trap trawl’’ accordance with the following: during the times specified in are removed. The definitions of (1) All nets are covered with canvas § 229.32(e)(1) through (e)(6) unless the ‘‘Anchored gillnet’’, ‘‘Gillnet’’, or other similar material and lashed or drift gillnet gear complies with the ‘‘Groundline’’, ‘‘Neutrally buoyant otherwise securely fastened to the deck, marking requirements, closures, line’’, ‘‘Sinking line’’, and ‘‘Stowed’’ are rail, or drum, and all buoys larger than modifications, and restrictions specified revised in alphabetical order to read as 6 inches (15.24 cm) in diameter, high in § 229.32(b)(2)(ii), (b)(2)(iii), and (e)(1) follows below. The definitions of ‘‘Bitter flyers, and anchors are disconnected; through (e)(6), or unless the gear is end’’, ‘‘Bottom portion of the line’’, ‘‘Tie and stowed as specified in § 229.2. loops’’, ‘‘Trap/Pot’’, ‘‘Trap/pot trawl’’, (k) It is prohibited to fish with or and ‘‘Up and down line’’ are added in (2) Any other method of stowage possess gillnet gear in the areas and alphabetical order to read as follows: authorized in writing by the Regional during the times specified in Administrator and subsequently § 229.32(f)(1) and (g)(1) unless the § 229.2 Definitions. published in the Federal Register. gillnet gear complies with the marking * * * * * * * * * * requirements, closures, modifications, Anchored gillnet means any gillnet Tie loops means the loops on a gillnet and restrictions specified in gear, including an anchored float gillnet, panel used to connect net panels to the § 229.32(b)(2)(ii), (b)(2)(iii), (f)(2)(ii), sink gillnet or stab net, that is set buoy line, groundline, bridle or each (f)(2)(iv), (f)(2)(v), and (g)(3), or for (g)(3) anywhere in the water column and other. unless the gear is stowed as specified in which is anchored, secured, or weighted Trap/Pot means any structure or other § 229.2. to the bottom of the sea. Also called a device, other than a net or longline, that (l) It is prohibited to fish with or set gillnet. is placed, or designed to be placed, on possess shark gillnet gear (i.e. gillnet * * * * * the ocean bottom and is designed for or gear for shark with webbing of 5 inches Bitter end means the end of a line that is capable of, catching species including (12.7 cm) or greater stretched mesh) in detaches from a weak link. but not limited to lobster, crab (red, the areas and during the times specified Bottom portion of the line means, for Jonah, rock, and blue), hagfish, finfish in § 229.32(f)(1), (g)(1) and (h)(1) unless buoy lines, the portion of the line in the (black sea bass, scup, tautog, cod, the gear complies with the marking water column that is closest to the haddock, pollock, redfish (ocean perch), requirements, closures, modifications, fishing gear. and white hake), conch/whelk, and and restrictions specified in * * * * * shrimp. § 229.32(b)(2)(i), (b)(2)(iii), (f)(2)(ii), Gillnet means fishing gear consisting Trap/pot trawl means two or more (f)(2)(iii), (f)(2)(v), (g)(2), and (h)(2), or of a wall of webbing (meshes) or nets, trap/pots attached to a single for the gear marking requirements for designed or configured so that the groundline. (h)(2) unless the gear is stowed as webbing (meshes) or nets are placed in Up and down line means the line that specified in § 229.2. the water column, usually held connects the float-line and lead-line at * * * * * approximately vertically, and are the end of each gillnet net panel. I 4. Section § 229.32 is amended as designed to capture fish by * * * * * follows: entanglement, gilling, or wedging. The I A. Paragraphs (f) introductory text, term ‘‘gillnet’’ includes gillnets of all I 3. In § 229.3: (f)(2), and (f)(3) are revised effective types, including but not limited to sink I a. Redesignate paragraphs (l), (m), (n), November 5, 2007. gillnets, other anchored gillnets (e.g., (o), (p), (q), and (r) as paragraphs (m), I B. Amendments to § 229.32 (f)(1)(iii) anchored float gillnets, stab, and set (n), (o), (p), (q), (r), and (s), respectively; and (g)(4)(i)(B)(1)(vi) are added effective nets), and drift gillnets. Gillnets may or and November 5, 2007 to April 5, 2008. may not be attached to a vessel. I b. Paragraphs (h) through (k) are then I C. Paragraphs (f)(1)(ii) and Groundline, with reference to trap/pot revised and paragraph (l) is added to (g)(4)(i)(B)(1)(iii) are removed and gear, means a line connecting traps in a read as follows: reserved effective November 5, 2007.

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§ 229.32 Atlantic large whale take (3) Observer requirement. No person gillnet and trap/pot fisheries. The gear reduction plan regulations. may fish for shark with gillnet with types affected by this plan include * * * * * webbing of 5 inches (12.7cm) or greater gillnets (e.g., anchored, drift, and shark) (f) Restrictions applicable to the stretched mesh in the Southeast U.S. and traps/pots. Southeast U.S. Restricted Area and the Restricted Area from December 1 (2) Regulated waters. The regulations Southeast U.S. Monitoring Area— through March 31 south of 29°00′ N. lat. in this section apply to all U.S. waters (1) * * * unless the operator of the vessel calls in the Atlantic except for the areas (i) * * * the Southeast Fisheries Science Center exempted in paragraph (a)(3) of this (iii) Southeast U.S. Monitoring Area— Panama City Laboratory in Panama City, section. (A) Management areas and restricted FL, not less than 48 hours prior to (3) Exempted waters. (i) The periods. From December 1 through departing on any fishing trip, in order regulations in this section do not apply March 31, the Southeast U.S. to arrange for observer coverage. If the to waters landward of the first bridge Monitoring Area consists of the area over any embayment, harbor, or inlet in ° ′ ° ′ Panama City Laboratory requests that an from 27 51 N. lat. south to 26 46.50 N. observer be taken on board a vessel Massachusetts. lat. (near West Palm Beach, FL), during a fishing trip at any time from (ii) The regulations in this section do extending from the shoreline or not apply to waters landward of the 72 ° ′ December 1 through March 31 south of exemption line out to 80 00 W. long., 29° 00′ N. lat., no person may fish with COLREGS demarcation lines unless the Assistant Administrator such gillnet gear aboard that vessel in (International Regulations for changes that area in accordance with the Southeast U.S. Restricted Area Preventing Collisions at Sea, 1972), as paragraph (g) of this section. depicted or noted on nautical charts (B) Vessel monitoring systems and unless an observer is on board that vessel during the trip. published by the National Oceanic and observer requirements. No person may Atmospheric Administration (Coast fish for shark with gillnet with webbing * * * * * Charts 1:80,000 scale), and as described of 5 inches (12.7 cm) or greater stretched (g) * * * in 33 CFR part 80 with the exception of mesh in the Southeast U.S. Monitoring (4) * * * the COLREGS lines for Casco Bay Area during the restricted period unless (i) * * * (Maine), Portsmouth Harbor (New the person or vessel satisfies the vessel (B) * * * Hampshire), Gardiners Bay and Long monitoring system and observer (1) *** Island Sound (New York), and the state requirements listed below. (vi) Net panel weak links. The of Massachusetts. (1) Vessel monitoring systems. No breaking strength of each weak link (iii) Other exempted waters. The person or vessel may fish with or must not exceed 1,100 lb (499.0 kg). The regulations in this section do not apply possess gillnet gear for shark with weak link requirements apply to all to waters landward of the following webbing of 5 inches (12.7 cm) or greater variations in panel size. One weak link lines: stretched mesh in the Southeast U.S. must be placed in the center of the Maine Monitoring Area during the restricted floatline and one weak link must be period unless the operator of the vessel placed in the center of each of the up A line connecting the following is in compliance with the vessel and down lines at both ends of the net points (Quoddy Narrows/U.S.-Canada monitoring system (VMS) requirements panel. Additionally, one weak link must border to Odiornes Pt., Portsmouth, found in 50 CFR 635.69. be placed as close as possible to each New Hampshire): (2) At-sea observer coverage. NMFS end of the net panels on the floatline; or 44°49.67′ N. lat., 66°57.77′ W. long. (R may select any shark gillnet vessel (i.e., one weak link must be placed between N ‘‘2’’, Quoddy Narrows) vessel fishing gillnet gear for shark with floatline tie-loops between net panels 44°48.64′ N. lat., 66°56.43′ W. long. (G webbing of 5 inches (12.7 cm) or greater and one weak link must be placed ‘‘1’’ Whistle, West Quoddy Head) stretched mesh) regulated under where the floatline tie-loops attach to 44°47.36′ N. lat., 66°59.25′ W. long. (R § 229.32 to carry an observer. When the bridle, buoy line, or groundline at N ‘‘2’’, Morton Ledge) ° ′ ° ′ selected, vessels are required to take each end of a net string. 44 45.51 N. lat., 67 02.87 W. long. (R observers on a mandatory basis in * * * * * ‘‘28M’’ Whistle, Baileys Mistake) 44°37.70′ N. lat., 67°09.75′ W. long. compliance with the requirements for I 5. Revise § 229.32, effective April 5, (Obstruction, Southeast of Cutler) at-sea observer coverage found in 50 2008 except for paragraphs (c)(5)(ii)(B), ° ′ ° ′ CFR 229.7. Any vessel that fails to carry 44 27.77 N. lat., 67 32.86 W. long. (c)(6)(ii)(B), (c)(7)(ii)(C), (c)(8)(ii)(B), (Freeman Rock, East of Great Wass an observer once selected is prohibited (c)(9)(ii)(B), (d)(6)(ii)(D), and from fishing pursuant to 50 CFR part Island) (d)(7)(ii)(D), which will be effective 44°25.74′ N. lat., 67°38.39′ W. long. (R 635. October 5, 2008, to read as follows: (2) Gear marking requirements. From ‘‘2SR’’ Bell, Seahorse Rock, West of November 15 through March 31 of the § 229.32 Atlantic large whale take Great Wass Island) 44°21.66′ N. lat., 67°51.78′’ W. long. (R following year, no person may fish with reduction plan regulations. N ‘‘2’’, Petit Manan Island) gillnet gear in the Southeast U.S. (a)(1) Purpose and scope. The purpose 44°19.08′ N. lat., 68°02.05′ W. long. (R Restricted Area and Southeast U.S. of this section is to implement the ‘‘2S’’ Bell, Schoodic Island) Monitoring Area unless that gear is Atlantic Large Whale Take Reduction 44°13.55′ N. lat., 68°10.71′ W. long. (R marked according to the gear marking Plan to reduce incidental mortality and ‘‘8BI’’ Whistle, Baker Island) code specified under paragraph (b) of serious injury of fin, humpback, and 44°08.36′ N. lat., 68°14.75′ W. long. this section. All buoy lines must be right whales in specific Category I and (Southern Point, Great Duck Island) marked within 2 ft (0.6m) of the top of Category II commercial fisheries from 43°59.36′ N. lat., 68°37.95′ W. long. (R the buoy line and midway along the Maine through Florida. The measures ‘‘2’’ Bell, Roaring Bull Ledge, Isle Au length of the buoy line. From November identified in the Atlantic Large Whale Haut) 15, 1999, each net panel must be Take Reduction Plan are also intended 43°59.83′ N. lat., 68°50.06′’ W. long. (R marked along both the float line and the to benefit minke whales, which are not ‘‘2A’’ Bell, Old Horse Ledge) lead line at least once every 100 yards designated as a strategic stock, but are 43°56.72′ N. lat., 69°04.89′ W. long. (G (92.4m). known to be taken incidentally in ‘‘5TB’’ Bell, Two Bush Channel)

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43°50.28′ N. lat., 69°18.86′ W. long. (R greater than 280 fathoms (1,680 ft or (B) Markings. All specified gear in ‘‘2 OM’’ Whistle, Old Man Ledge) 512.1 m) (as shown on NOAA charts specified areas must be marked with 43°48.96′ N. lat., 69°31.15′ W. long. (GR 13200 (Georges Bank and Nantucket two color codes, one designating the C ‘‘PL’’, Pemaquid Ledge) Shoals, 1:400,000), 12300 (NY gear type, the other indicating the area 43°43.64′ N. lat., 69°37.58′ W. long. (R Approaches—Nantucket Shoals to Five where the gear is set. Each color of the ‘‘2BR’’ Bell, Bantam Rock) Fathom Bank, 1:400,000), 12200 (Cape two-color code must be permanently 43°41.44′ N. lat., 69°45.27′ W. long. (R May to Cape Hatteras, 1:419,706), 11520 marked on or along the line or lines ‘‘20ML’’ Bell, Mile Ledge) (Cape Hatteras to Charleston, 1:432,720), specified below under paragraphs 43°36.04′ N. lat., 70°03.98′ W. long. (RG 11480 (Charleston Light to Cape (b)(2)(i)(C) and (D) of this section. Each N ‘‘BS’’, Bulwark Shoal) Canaveral, 1:449,659) and 11460(Cape color mark of the color codes must be 43°31.94′ N. lat., 70°08.68′ W. long. (G Canaveral to Key West, 1:466,940)). clearly visible when the gear is hauled ‘‘1’’, East Hue and Cry) (5) Net panel weak link and anchoring or removed from the water. Each mark 43°27.63′ N. lat., 70°17.48′ W. long. (RW exemption. The anchored gillnet must be at least 4 inches (10.2 cm) long. ‘‘WI’’ Whistle, Wood Island) fisheries regulated under this section are The two color marks must be placed ° ′ ° ′ 43 20.23 N. lat., 70 23.64 W. long. (RW exempt from the requirement to install within 6 inches (15.2 cm) of each other. ‘‘CP’’ Whistle, Cape Porpoise) weak links in the net panel and anchor If the color of the rope is the same as ° ′ ° ′ 43 04.06 N. lat., 70 36.70 W. long. (R each end of the net string if the float-line or similar to a color code, a white mark N ‘‘2MR’’, Murray Rock) is at a depth equal to or greater than 280 may be substituted for that color code. ° ′ ° ′ 43 02.93 N. lat., 70 41.47 W. long. (R fathoms (1,680 ft or 512.1 m) (as shown In marking or affixing the color code, ‘‘2KR’’ Whistle, Kittery Point) on NOAA charts 13200 (Georges Bank ° ′ ° ′ the line may be dyed, painted, or 43 02.55 N. lat., 70 43.33 W. long. and Nantucket Shoals, 1:400,000), marked with thin colored whipping (Odiornes Pt., Portsmouth, New 12300 (NY Approaches—Nantucket line, thin colored plastic, or heat-shrink Hampshire) Shoals to Five Fathom Bank, 1:400,000), tubing, or other material; or a thin line 12200 (Cape May to Cape Hatteras, New Hampshire may be woven into or through the line; 1:419,706), 11520 (Cape Hatteras to or the line may be marked as approved A line from 42°53.691′ N. lat., Charleston, 1:432,720), 11480 in writing by the Assistant 70°48.516′ W. long. to 42°53.516′ N. (Charleston Light to Cape Canaveral, Administrator. A brochure illustrating lat., 70°48.748′ W. long. (Hampton 1:449,659) and 11460(Cape Canaveral to the techniques for marking gear is Harbor) Key West, 1:466,940)). available from the Regional A line from 42°59.986′ N. lat., (b) Gear marking requirements. (1) Administrator, NMFS, Northeast Region 70°44.654′ W. long. to 42°59.956′ N., Specified gear consists of trap/pot gear upon request. 70°44.737′ W. long. (Rye Harbor) and gillnet gear set in specified areas. (2) Specified areas. The following (C) Buoy line markings. All buoy lines Rhode Island areas are specified for gear marking greater than 4 feet (1.22 m) long must be A line from 41°22.441′ N. lat., purposes: Northern Inshore State Trap/ marked within 2 feet (0.6 m) of the top 71°30.781′ W. long. to 41°22.447′ N. Pot Waters, Cape Cod Bay Restricted of the buoy line (closest to the surface) lat., 71°30.893′ W. long. (Pt. Judith Area, Stellwagen Bank/Jeffreys Ledge and midway along the length of the Pond Inlet) Restricted Area, Northern Nearshore buoy line. A line from 41°21.310′ N. lat., Trap/Pot Waters Area, Great South (D) Net panel markings. Each gillnet 71°38.300′ W. long. to 41°21.300′ N. Channel Restricted Trap/Pot Area, Great net panel must be marked along both lat., 71°38.330′ W. long. (Ninigret South Channel Restricted Gillnet Area, the floatline and the leadline at least Pond Inlet) Great South Channel Sliver Restricted once every 100 yards (91.4 m), unless A line from 41°19.875′ N. lat., Area, Southern Nearshore Trap/Pot otherwise required by the Assistant 71°43.061′ W. long. to 41°19.879′ N. Waters Area, Offshore Trap/Pot Waters Administrator under paragraph (i) of lat., 71°43.115′ W. long. Area, Other Northeast Gillnet Waters this section. (Quonochontaug Pond Inlet) Area, Mid/South Atlantic Gillnet Waters (ii) Requirements for other specified A line from 41°19.660′ N. lat., Area, Other Southeast Gillnet Waters areas. Any person who owns or fishes 71°45.750′ W. long. to 41°19.660′ N. Area, Southeast U.S. Restricted Area, with specified gear in the other lat., 71°45.780′ W. long. (Weekapaug and Southeast U.S. Monitoring Area. specified areas must mark that gear in Pond Inlet) (i) Requirements for Shark Gillnet accordance with paragraphs (b)(2)(ii)(A), (b)(2)(ii)(B), and (b)(2)(iii) of this New York Gear in the Southeast U.S. Restricted Area S, Southeast U.S. Monitoring Area section, unless otherwise required by A line that follows the territorial sea and Other Southeast Gillnet Waters— the Assistant Administrator under baseline through Block Island Sound (A) Color code. Shark gillnet gear (i.e., paragraph (i) of this section. (Watch Hill Point, RI, to Montauk gillnet gear for shark with webbing of 5 (A) Color code. Specified gear must be Point, NY) inches (12.7 cm) or greater stretched marked with the appropriate colors to designate gear-types and areas as South Carolina mesh) in the Southeast U.S. Restricted follows: ° ′ Area S, Southeast U.S. Monitoring Area, A line from 32 34.717 N. lat., and Other Southeast Gillnet Waters (1) Trap/pot gear in the Northern 80°08.565′ W. long. to 32°34.686′ N. Inshore State Trap/Pot Waters Area, the ° ′ must be marked with the appropriate lat., 80 08.642 W. long. (Captain color code to designate gear types and Cape Cod Bay Restricted Area, the Sams Inlet) areas as follows: Stellwagen Bank/Jeffreys Ledge (4) Sinking and/or neutrally buoyant (1) Gear type code. Shark gillnet gear Restricted Area, the Great South groundline exemption. The fisheries must be marked with a green marking. Channel Restricted Trap/Pot Area where regulated under this section are exempt (2) Area code. Shark gillnet gear set in it overlaps with Lobster Management from the requirement to have the Southeast U.S. Restricted Area S, Area (LMA) 2 and the Outer Cape LMA groundlines composed of sinking and/or Southeast U.S. Monitoring Area, and (as defined in the American Lobster neutrally buoyant line if their Other Southeast Gillnet Waters must be Fishery regulations in 50 CFR 697.18), groundline is at a depth equal to or marked with a blue marking. and the Northern Nearshore Trap/Pot

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Waters Area must be marked with a red identification marking is required by the specified in paragraph (c)(1) of this marking. vessel’s home-port state. When marking section, and the area-specific (2) Trap/pot gear in the Southern of surface buoys is not already required requirements listed below for the winter Nearshore Trap/Pot Waters Area must by state or federal regulations, the letters restricted period, or unless the gear is be marked with an orange marking. and numbers used to mark the gear to stowed as specified in (3) Trap/pot gear in the Great South identify the vessel or fishery must be at § 229.2. The Assistant Administrator Channel Restricted Trap/Pot Area where least 1 inch (2.5 cm) in height in block may revise these requirements in it overlaps with LMA 2⁄3 Overlap and letters or arabic numbers in a color that accordance with paragraph (i) of this LMA 3 (as defined in the American contrasts with the background color of section. Lobster Fishery regulations in 50 CFR the buoy. A brochure illustrating the (A) Winter restricted period. The 697.18), and the Offshore Trap/Pot techniques for marking gear is available winter restricted period for the Cape Waters Area must be marked with a upon from the Regional Administrator, Cod Bay Restricted Area is from January black marking. NMFS, Northeast Region upon request. 1 through May 15 of each year unless (4) Anchored and drift gillnet gear in (3) Changes to requirements. If the the Assistant Administrator changes this the Cape Cod Bay Restricted Area, Assistant Administrator revises the gear period in accordance with paragraph (i) Stellwagen Bank/Jeffreys Ledge marking requirements in accordance of this section. Restricted Area, Great South Channel with paragraph (i) of this section, the (B) Buoy line weak links. All buoys, Restricted Gillnet Area, Great South gear must be marked in compliance flotation devices and/or weights (except Channel Sliver Restricted Area, and with those requirements. traps/pots, anchors, and leadline woven Other Northeast Gillnet Waters Area (c) Restrictions applicable to trap/pot into the buoy line), such as surface must be marked with a green marking. gear in regulated waters—(1) Universal buoys, high flyers, sub-surface buoys, (5) Anchored and drift gillnet gear in trap/pot gear requirements. In addition toggles, window weights, etc., must be the Mid/South Atlantic Gillnet Waters to the area-specific measures listed in attached to the buoy line with a weak Area must be marked with a blue paragraphs (c)(2) through (c)(9) of this link placed as close to each individual marking. section, all trap/pot gear in regulated buoy, flotation device and/or weight as (6) Gillnet gear (except gillnet gear for waters, including the Northern Inshore operationally feasible and that meets the shark with webbing of 5 inches (12.7 following specifications: cm) or greater stretched mesh) in the State Trap/Pot Waters Area, must comply with the universal gear (1) The breaking strength of the weak Southeast U.S. Restricted Area S and 1 links must not exceed 500 lb (226.8 kg). Other Southeast Gillnet Waters must be requirements listed here. The Assistant Administrator may revise these (2) The weak link must be chosen marked with a yellow marking. from the following list approved by (B) Markings. All specified gear in requirements in accordance with paragraph (i) of this section. NMFS: Swivels, plastic weak links, rope specified areas must be marked with of appropriate breaking strength, hog one color code described in paragraph (i) No buoy line floating at the surface. No person or vessel may fish rings, rope stapled to a buoy stick, or (b)(2)(ii)(A) of this section (which other materials or devices approved in indicates the gear type and general area with trap/pot gear that has any portion of the buoy line floating at the surface writing by the Assistant Administrator. where the gear is set). Each color code A brochure illustrating the techniques must be permanently affixed on or along at any time when the buoy line is directly connected to the gear at the for making weak links is available from the line or lines. Each color code must the Regional Administrator, NMFS, be clearly visible when the gear is ocean bottom. If more than one buoy is attached to a single buoy line or if a Northeast Region upon request. hauled or removed from the water. Each (3) Weak links must break cleanly mark must be at least 4 inches (10.2 cm) high flyer and a buoy are used together on a single buoy line, floating line may leaving behind the bitter end of the line. long and be placed midway on the buoy The bitter end of the line must be free line in the water column. If the color of be used between these objects. (ii) No wet storage of gear. Trap/pot of any knots when the weak link breaks. the rope is the same as or similar to a Splices are not considered to be knots color code, a white mark may be gear must be hauled out of the water at least once every 30 days. for the purposes of this provision. substituted for that color code. In (C) Single traps and multiple-trap marking or affixing the color code, the (2) Cape Cod Bay Restricted Area—(i) Area. The Cape Cod Bay restricted area trawls. Single traps and three-trap trawls line may be dyed, painted, or marked are prohibited. All traps must be set in with thin colored whipping line, thin consists of the Cape Cod Bay right whale critical habitat area specified either a two-trap string or in a trawl of colored plastic, or heat-shrink tubing, or four or more traps. A two-trap string other material; or a thin line may be under 50 CFR 226.203(b) unless the Assistant Administrator changes that must have no more than one buoy line. woven into or through the line; or the (D) Buoy lines. All buoy lines must be area in accordance with paragraph (i) of line may be marked as approved in composed of sinking and/or neutrally this section. writing by the Assistant Administrator. buoyant line except the bottom portion (ii) Area-specific gear or vessel A brochure illustrating the techniques of the line, which may be a section of requirements during the winter for marking gear is available from the floating line not to exceed one-third the restricted period. No person or vessel Regional Administrator, NMFS, overall length of the buoy line. Northeast Region upon request. may fish with or possess trap/pot gear (E) Groundlines. All groundlines must (iii) Requirements for all specified in the Cape Cod Bay Restricted Area be comprised entirely of sinking and/or areas—(A) Surface buoy markings. during the winter restricted period neutrally buoyant line. The attachment Trap/pot and gillnet gear regulated unless that gear complies with the gear of buoys, toggles, or other floatation under this section must mark all surface marking requirements specified in devices to groundlines is prohibited. buoys to identify the vessel or fishery paragraph (b) of this section, the (iii) Area-specific gear or vessel with one of the following: The owner’s universal trap/pot gear requirements requirements for the other restricted motorboat registration number, the period. No person or vessel may fish 1 Fishermen are also encouraged to maintain their owner’s U.S. vessel documentation buoy lines to be as knot-free as possible. Splices are with or possess trap/pot gear in the number, the federal commercial fishing considered to be less of an entanglement threat and Cape Cod Bay Restricted Area during permit number, or whatever positive are thus preferable to knots. the other restricted period unless that

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gear complies with the gear marking practices in accordance with paragraph Nearshore Trap/Pot Waters Area requirements specified in paragraph (b) (i) of this section and the gear or specified in paragraph (c)(7) of this of this section and the universal trap/ practices comply with those section, or unless the gear is stowed as pot gear requirements specified in specifications, or unless the gear is specified in § 229.2. The Assistant paragraph (c)(1) of this section as well stowed as specified in § 229.2. Administrator may revise these as the area-specific requirements listed (iii) Area-specific gear or vessel requirements in accordance with below for the other restricted period, or requirements for the other restricted paragraph (i) of this section. unless the gear is stowed as specified in period. The other restricted period for (5) Offshore Trap/Pot 2 Waters Area— § 229.2. The Assistant Administrator the Great South Channel Restricted (i) Area. The Offshore Trap/Pot Waters may revise these requirements in Trap/Pot Area is July 1 through March Area includes all Federal waters of the accordance with paragraph (i) of this 31, unless the Assistant Administrator EEZ Offshore Management Area 3 section. revises this period in accordance with (including the area known as the Area (A) Other restricted period. The other paragraph (i) of this section. During the 2⁄3 Overlap and Area 3⁄5 Overlap as restricted period for the Cape Cod Bay other restricted period, no person or defined in the American Lobster Fishery Restricted Area is from May 16 through vessel may fish with or possess trap/pot regulations at 50 CFR 697.18, with the December 31 of each year unless the gear in the Great South Channel exception of the Great South Channel Assistant Administrator revises this Restricted Trap/Pot Area unless that Restricted Trap/Pot Area), and period in accordance with paragraph (i) gear complies with the gear marking extending south along the 100-fathom of this section. requirements specified in paragraph (b) (600-ft or 182.9-m) depth contour from (B) Gear and vessel requirements—(1) of this section, and the universal trap/ 35°30′ N. lat. south to 27°51′ N. lat., and State-water portion. No person or vessel pot gear requirements specified in east to the eastern edge of the EEZ. The may fish with or possess trap/pot gear paragraph (c)(1) of this section, or Assistant Administrator may revise in the state-water portion of the Cape unless the gear is stowed as specified in these requirements in accordance with Cod Bay Restricted Area during the § 229.2. Additionally, no person or paragraph (i) of this section. other restricted period unless that gear vessel may fish with or possess trap/pot (ii) Year-round area-specific gear or complies with the requirements for the gear in the Great South Channel vessel requirements. No person or vessel Northern Inshore State Trap/Pot Waters Restricted Trap/Pot Area unless that may fish with or possess trap/pot gear Area listed in paragraph (c)(6) of this gear complies with the requirements in the Offshore Trap/Pot Waters Area section, or unless the gear is stowed as listed for Northern Nearshore Trap/Pot that overlaps an area from the specified in § 229.2. The Assistant Waters Area in paragraph (c)(7) of this U.S./Canada border south to a straight Administrator may revise these section where the Great South Channel line from 41°18.2′ N. lat., 71°51.5′ W. requirements in accordance with Restricted Trap/Pot Area overlaps with long. (Watch Hill Point, RI) south to paragraph (i) of this section. Lobster Management Area (LMA) 2 and 40°00′ N. lat., and then east to the (2) Federal-water portion. No person the Outer Cape LMA (as defined in the eastern edge of the EEZ, unless that gear or vessel may fish with or possess trap/ American Lobster Fishery regulations in complies with the gear marking pot gear in the Federal-water portion of 50 CFR 697.18); the requirements listed requirements specified in paragraph (b) the Cape Cod Bay Restricted Area for Offshore Trap/Pot Waters in of this section, the universal trap/pot during the other restricted period unless paragraph (c)(5) of this section where gear requirements specified in that gear complies with the the Great South Channel Restricted paragraph (c)(1) of this section, and the requirements for the Northern Trap/Pot Area overlaps with LMA 2/3 area-specific requirements listed below, Nearshore Trap/Pot Waters Area in Overlap and LMA 3 (as defined in the or unless the gear is stowed as specified paragraph (c)(7) of this section, or American Lobster Fishery regulations in in § 229.2. The Assistant Administrator unless the gear is stowed as specified in 50 CFR 697.18); or unless the gear is may revise these requirements in § 229.2. The Assistant Administrator stowed as specified in § 229.2. The accordance with paragraph (i) of this may revise these requirements in Assistant Administrator may revise section. accordance with paragraph (i) of this these requirements in accordance with (A) Buoy line weak links. All buoys, section. paragraph (i) of this section. flotation devices and/or weights (except (3) Great South Channel Restricted (4) Stellwagen Bank/Jeffreys Ledge traps/pots, anchors, and leadline woven Trap/Pot Area—(i) Area. The Great Restricted Area—(i) Area. The into the buoy line), such as surface South Channel Restricted Trap/Pot Area Stellwagen Bank/Jeffreys Ledge buoys, high flyers, sub-surface buoys, consists of the Great South Channel Restricted Area includes all Federal toggles, window weights, etc., must be right whale critical habitat area waters of the Gulf of Maine, except attached to the buoy line with a weak specified under 50 CFR 226.203(a) those designated as right whale critical link placed as close to each individual unless the Assistant Administrator habitat under 50 CFR 226.203(b), that lie ° ′ ° ′ buoy, flotation device and/or weight as changes that area in accordance with south of 43 15 N. lat. and west of 70 00 operationally feasible and that meets the paragraph (i) of this section. W. long. The Assistant Administrator following specifications: (ii) Closure during the spring may change that area in accordance (1) The weak link must be chosen restricted period. The spring restricted with paragraph (i) of this section. from the following list approved by period for the Great South Channel (ii) Year-round area-specific gear or NMFS: Swivels, plastic weak links, rope Restricted Trap/Pot Area is from April vessel requirements. No person or vessel of appropriate breaking strength, hog 1 through June 30 of each year unless may fish with or possess trap/pot gear rings, rope stapled to a buoy stick, or the Assistant Administrator revises this in the Stellwagen Bank/Jeffreys Ledge other materials or devices approved in period in accordance with paragraph (i) Restricted Area unless that gear writing by the Assistant Administrator. of this section. During the spring complies with the gear marking A brochure illustrating the techniques restricted period, no person or vessel requirements specified in paragraph (b) for making weak links is available from may fish with, set, or possess trap/pot of this section, the universal trap/pot gear in this Area unless the Assistant gear requirements specified in 2 Fishermen using red crab trap/pot gear should Administrator specifies gear paragraph (c)(1) of this section, and the refer to § 229.32(c)(9) for the restrictions applicable modifications or alternative fishing requirements listed for the Northern to red crab trap/pot fishery.

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the Regional Administrator, NMFS, Offshore Trap/Pot Waters Area that (3) Weak links must break cleanly Northeast Region upon request. overlaps an area from 29°00′ N. lat. leaving behind the bitter end of the line. (2) The breaking strength of the weak south to 27°51′ N. lat. and east to the The bitter end of the line must be free links may not exceed 1,500 lb (680.4 eastern edge of the EEZ, unless that gear of any knots when the weak link breaks. kg). complies with the gear marking Splices are not considered to be knots (3) Weak links must break cleanly requirements specified in paragraph (b) for the purposes of this provision. leaving behind the bitter end of the line. of this section, the universal trap/pot (B) Groundlines. On or before October The bitter end of the line must be free gear requirements specified in (c)(1) of 6, 2008, all groundlines must be of any knots when the weak link breaks. this section, and the area-specific comprised entirely of sinking and/or Splices are not considered to be knots requirements specified in paragraphs neutrally buoyant line unless exempted for the purposes of this provision. (c)(5)(ii)(A) and (c)(5)(ii)(B) of this for this requirement under paragraph (B) Groundlines. On or before October section, or unless the gear is stowed as (a)(4) of this section. The attachment of 6, 2008, all groundlines must be specified in § 229.2. The Assistant buoys, toggles, or other flotation devices comprised entirely of sinking and/or Administrator may revise this period to groundlines is prohibited. neutrally buoyant line unless exempted and these requirements in accordance (C) [Reserved] from this requirement under paragraph with paragraph (i) of this section. (7) Northern Nearshore Trap/Pot (a)(4) of this section. The attachment of (vi) [Reserved] Waters Area—(i) Area. The Northern buoys, toggles, or other flotation devices (6) Northern Inshore State Trap/Pot Nearshore Trap/Pot Waters Area to groundlines is prohibited. Waters Area—(i) Area. The Northern includes all Federal waters of EEZ (iii) Seasonal area-specific gear or Inshore State Trap/Pot Waters Area vessel requirements. From September 1 Nearshore Management Area 1, Area 2, includes the state waters of Rhode and the Outer Cape Lobster to May 31, no person or vessel may fish Island, Massachusetts, New Hampshire, Management Area (as defined in the with or possess trap/pot gear in the and Maine, with the exception of Cape American Lobster Fishery regulations at Offshore Trap/Pot Waters Area that Cod Bay Restricted Area and those 50 CFR 697.18), with the exception of overlaps an area bounded on the north waters exempted under paragraph (a)(3) the Great South Channel Restricted by a straight line from 41°18.2′ N. lat., of this section. The Assistant Trap/Pot Area, Cape Cod Bay Restricted 71°51.5′ W. long. (Watch Hill Point, RI) Administrator may change that area in Area, Stellwagen Bank/Jeffreys Ledge south to 40°00′ N. lat. and then east to accordance with paragraph (i) of this Restricted Area and those waters the eastern edge of the EEZ, and section. bounded on the south by a line at 32°00′ (ii) Year-round area-specific gear or exempted under paragraph (a)(3) of this N. lat., and east to the eastern edge of vessel requirements. No person or vessel section. The Assistant Administrator the EEZ, unless that gear complies with may fish with or possess trap/pot gear may change that area in accordance the gear marking requirements specified in the Northern Inshore State Trap/Pot with paragraph (i) of this section. in paragraph (b) of this section, the Waters Area unless that gear complies (ii) Year-round area-specific gear or universal trap/pot gear requirements with the gear marking requirements vessel requirements. No person or vessel specified in paragraph (c)(1) of this specified in paragraph (b) of this may fish with or possess trap/pot gear section, the area-specific requirements section, the universal trap/pot gear in the Northern Nearshore Trap/Pot specified in paragraphs (c)(5)(ii)(A) and requirements specified in paragraph Waters Area unless that gear complies (c)(5)(ii)(B) of this section, or unless the (c)(1) of this section, and the area- with the gear marking requirements gear is stowed as specified in § 229.2. specific requirements listed below, or specified in paragraph (b) of this The Assistant Administrator may revise unless the gear is stowed as specified in section, the universal trap/pot gear that period and these requirements in § 229.2. The Assistant Administrator requirements specified in paragraph accordance with paragraph (i) of this may revise these requirements in (c)(1) of this section, and the area- section. accordance with paragraph (i) of this specific requirements listed below, or (iv) Seasonal area-specific gear or section. unless the gear is stowed as specified in vessel requirements. From November 15 (A) Buoy line weak links. All buoys, § 229.2. The Assistant Administrator to April 15, no person or vessel may fish flotation devices and/or weights (except may revise these requirements in with or possess trap/pot gear in the traps/pots, anchors, and leadline woven accordance with paragraph (i) of this Offshore Trap/Pot Waters Area that into the buoy line), such as surface section. overlaps an area from 32°00′ N. lat. buoys, high flyers, sub-surface buoys, (A) Buoy line weak links. All buoys, south to 29°00′ N. lat. and east to the toggles, window weights, etc., must be flotation devices and/or weights (except eastern edge of the EEZ, unless that gear attached to the buoy line with a weak traps/pots, anchors, and leadline woven complies with the gear marking link placed as close to each individual into the buoy line), such as surface requirements specified in paragraph (b) buoy, flotation device and/or weight as buoys, high flyers, sub-surface buoys, of this section, the universal trap/pot operationally feasible and that meets the toggles, window weights, etc., must be gear requirements specified in following specifications: attached to the buoy line with a weak paragraph (c)(1) of this section, and the (1) The weak link must be chosen link placed as close to each individual area-specific requirements specified in from the following list approved by buoy, flotation device and/or weight as paragraphs (c)(5)(ii)(A) and (c)(5)(ii)(B) NMFS: swivels, plastic weak links, rope operationally feasible and that meets the of this section, or unless the gear is of appropriate breaking strength, hog following specifications: stowed as specified in § 229.2. The rings, rope stapled to a buoy stick, or (1) The weak link must be chosen Assistant Administrator may revise that other materials or devices approved in from the following list approved by period and these requirements in writing by the Assistant Administrator. NMFS: swivels, plastic weak links, rope accordance with paragraph (i) of this A brochure illustrating the techniques of appropriate breaking strength, hog section. for making weak links is available from rings, rope stapled to a buoy stick, or (v) Seasonal area-specific gear or the Regional Administrator, NMFS, other materials or devices approved in vessel requirements. From December 1 Northeast Region upon request. writing by the Assistant Administrator. to March 31, no person or vessel may (2) The breaking strength of the weak A brochure illustrating the techniques fish with or possess trap/pot gear in the links may not exceed 600 lb (272.2 kg). for making weak links is available from

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the Regional Administrator, NMFS, traps/pots, anchors, and leadline woven marking requirements specified in Northeast Region upon request. into the buoy line), such as surface paragraph (b) of this section, the (2) The breaking strength of the weak buoys, high flyers, sub-surface buoys, universal trap/pot gear requirements links must not exceed 600 lb (272.2 kg). toggles, window weights, etc., must be specified in paragraph (c)(1) of this (3) Weak links must break cleanly attached to the buoy line with a weak section, and the area-specific leaving behind the bitter end of the line. link placed as close to each individual requirements specified in paragraphs The bitter end of the line must be free buoy, flotation device and/or weight as (c)(8)(ii)(A) and (c)(8)(ii)(B) of this of any knots when the weak link breaks. operationally feasible and that meets the section, or unless the gear is stowed as Splices are not considered to be knots following specifications: specified in § 229.2. The Assistant for the purposes of this provision. (1) The weak link must be chosen Administrator may revise that period (B) Single traps and multiple-trap from the following list approved by and these requirements in accordance trawls. Single traps are prohibited. All NMFS: swivels, plastic weak links, rope with paragraph (i) of this section. traps must be set in trawls of two or of appropriate breaking strength, hog (v) Seasonal area-specific gear or more traps. All trawls up to and rings, rope stapled to a buoy stick, or vessel requirements. From December 1 including five traps must have no more other materials or devices approved in to March 31, no person or vessel may than one buoy line. writing by the Assistant Administrator. fish with or possess trap/pot gear in the (C) Groundlines. On or before October A brochure illustrating the techniques Southern Nearshore Trap/Pot Waters 6, 2008, all groundlines must be for making weak links is available from Area that overlaps an area from 29°00′ comprised entirely of sinking and/or the Regional Administrator, NMFS, N. lat. south to 27°51′ N. lat. and east neutrally buoyant line unless exempted Northeast Region upon request. to the eastern edge of the EEZ, unless from this requirement under paragraph (2) The breaking strength of the weak that gear complies with the gear (a)(4) of this section. The attachment of links may not exceed 600 lb (272.2 kg). marking requirements specified in buoys, toggles, or other floatation (3) Weak links must break cleanly paragraph (b) of this section, the devices to groundlines is prohibited. leaving behind the bitter end of the line. universal trap/pot gear requirements (D) [Reserved] The bitter end of the line must be free specified in paragraph (c)(1) of this (8) Southern Nearshore3 Trap/Pot of any knots when the weak link breaks. section, and the area-specific Waters Area—(i) Area. The Southern Splices are not considered to be knots requirements specified in paragraphs Nearshore Trap/Pot Waters Area for the purposes of this provision. (c)(8)(ii)(A) and (c)(8)(ii)(B) of this includes all state and Federal waters (B) Groundlines. On or before October section, or unless the gear is stowed as which fall within EEZ Nearshore 6, 2008, all groundlines must be specified in § 229.2. The Assistant Management Area 4, EEZ Nearshore comprised entirely of sinking and/or Administrator may revise this period Management Area 5, and EEZ Nearshore neutrally buoyant line unless exempted and these requirements in accordance Management Area 6 (as defined in the from this requirement under paragraph with paragraph (i) of this section. American Lobster Fishery regulations in (a)(4) of this section. The attachment of (vi) [Reserved] 50 CFR 697.18), and inside the 100- buoys, toggles, or other floatation (9) Restrictions applicable to the red fathom (600-ft or 182.9-m) depth devices to groundlines is prohibited. crab trap/pot fishery—(i) Area. The red contour line from 35°30′ N lat. south to (iii) Seasonal area-specific gear or crab trap/pot fishery is regulated in the vessel requirements. From September 1 27°51′ N lat. and extending inshore to waters identified in paragraphs (c)(5)(i) to May 31, no person or vessel may fish the shoreline or exemption line, with and (c)(8)(i) of this section. with or possess trap/pot gear in the the exception of those waters exempted (ii) Year-round area-specific gear or Southern Nearshore Trap/Pot Waters under paragraph (a)(3) of this section. vessel requirements. No person or vessel Area that overlaps an area bounded on The Assistant Administrator may may fish with or possess red crab trap/ the north by a straight line from 41°18.2′ change that area in accordance with pot gear in the area identified in N. lat., 71°51.5′ W. long. (Watch Hill paragraph (i) of this section. paragraph (c)(9)(i) of this section that Point, RI) south to 40°00′ N. lat. and overlaps an area from the U.S./Canada (ii) Year-round area-specific gear or ° vessel requirements. No person or vessel then east to the eastern edge of the EEZ, border south to a straight line from 41 and bounded on the south by 32°00′ N. 18.2′ N. lat., 71°51.5′ W. long. (Watch may fish with or possess trap/pot gear ° ′ in the Southern Nearshore Trap/Pot lat., and east to the eastern edge of the Hill Point, RI) south to 40 00 N. lat., Waters Area that is east of a straight line EEZ, unless that gear complies with the and then east to the eastern edge of the from 41°18.2′ N. lat.,71°51.5′ W. long. gear marking requirements specified in EEZ, unless that gear complies with the (Watch Hill Point, RI) south to 40°00′ N. paragraph (b) of this section, the gear marking requirements specified in lat., unless that gear complies with the universal trap/pot gear requirements in paragraph (b) of this section, the gear marking requirements specified in paragraph (c)(1) of this section, universal trap/pot gear requirements paragraph (b) of this section, the requirements specified in paragraphs specified in paragraph (c)(1) of this universal trap/pot gear requirements (c)(8)(ii)(A) and (c)(8)(ii)(B) of this section, and the area-specific specified in paragraph (c)(1) of this section, or unless the gear is stowed as requirements listed below, or unless the section, and the area-specific specified in § 229.2. The Assistant gear is stowed as specified in § 229.2. requirements listed here, or unless the Administrator may revise that period The Assistant Administrator revises gear is stowed as specified in § 229.2. and these requirements in accordance these requirements in accordance with The Assistant Administrator may revise with paragraph (i) of this section. paragraph (i) of this section. (iv) Seasonal area-specific gear or (A) Buoy line weak links. All buoys, that period and these requirements in vessel requirements. From November 15 flotation devices and/or weights (except accordance with paragraph (i) of this to April 15, no person or vessel may fish traps/pots, anchors, and leadline woven section. with or possess trap/pot gear in the into the buoy line), such as surface (A) Buoy line weak links. All buoys, Southern Nearshore Trap/Pot Waters buoys, high flyers, sub-surface buoys, flotation devices and/or weights (except Area that overlaps an area from 32°00′ toggles, window weights, etc., must be ° ′ 3 Fishermen using red crab trap/pot gear should N. lat. south to 29 00 N. lat. and east attached to the buoy line with a weak refer to § 229.32(c)(9) for the restrictions applicable to the eastern edge of the EEZ, unless link placed as close to each individual to red crab trap/pot fishery. that gear complies with the gear buoy, flotation device and/or weight as

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operationally feasible and that meets the requirements specified in paragraphs period. The winter restricted period for following specifications: (c)(9)(ii)(A) and (c)(9)(ii)(B) of this this area is from January 1 through May (1) The weak link must be chosen section, or unless the gear is stowed as 15 of each year, unless the Assistant from the following list approved by specified in § 229.2. The Assistant Administrator revises that period in NMFS: Swivels, plastic weak links, rope Administrator may revise that period accordance with paragraph (i) of this of appropriate breaking strength, hog and these requirements in accordance section. rings, rope stapled to a buoy stick, or with paragraph (i) of this section. (B) Closure. During the winter other materials or devices approved in (v) Seasonal area-specific gear or restricted period, no person or vessel writing by the Assistant Administrator. vessel requirements. From December 1 may fish with or possess anchored A brochure illustrating the techniques to March 31, no person or vessel may gillnet gear in the Cape Cod Bay for making weak links is available from fish with or possess red crab trap/pot Restricted Area unless the Assistant the Regional Administrator, NMFS, gear in the area identified in paragraph Administrator specifies gear restrictions Northeast Region upon request. (c)(9)(i) of this section that overlaps an or alternative fishing practices in ° ′ ° ′ (2) The breaking strength of the weak area from 29 00 N. lat. south to 27 51 accordance with paragraph (i) of this links may not exceed 2,000 lb (907.2 N. lat. and east to the eastern edge of the section and the gear or practices comply kg). EEZ, unless that gear complies with the with those specifications, or unless the (3) Weak links must break cleanly gear marking requirements specified in gear is stowed as specified in § 229.2. leaving behind the bitter end of the line. paragraph (b) of this section, the The Assistant Administrator may waive The bitter end of the line must be free universal trap/pot gear requirements this closure for the remaining portion of of any knots when the weak link breaks. specified in paragraph (c)(1) of this the winter restricted period in any year Splices are not considered to be knots section, and the area-specific through a notification in the Federal for the purposes of this provision. requirements specified in paragraphs Register if NMFS determines that right (B) Groundlines. On or before October (c)(9)(ii)(A) and (c)(9)(ii)(B) of this 6, 2008, all groundlines must be whales have left the restricted area and section, or unless the gear is stowed as are unlikely to return for the remainder comprised entirely of sinking and/or specified in § 229.2. The Assistant neutrally buoyant line unless exempted of the season. Administrator may revise that period (iii) Area-specific gear or vessel from this requirement under paragraph and these requirements in accordance (a)(4) of this section. The attachment of requirements for the other restricted with paragraph (i) of this section. period—(A) Other restricted period. The buoys, toggles, or other floatation (vi) [Reserved] devices to groundlines is prohibited. (d) Restrictions applicable to other restricted period for the Cape Cod (iii) Seasonal area-specific gear or anchored gillnet gear—(1) Universal Bay Restricted Area is from May 16 vessel requirements. From September 1 anchored gillnet gear requirements. In through December 31 of each year to May 31, no person or vessel may fish addition to the area-specific measures unless the Assistant Administrator with or possess red crab trap/pot gear in listed in paragraphs (d)(2) through (d)(7) changes that period in accordance with the area identified in paragraph (c)(9)(i) of this section, all anchored gillnet gear paragraph (i) of this section. of this section that overlaps an area in regulated waters must comply with (B) Area-specific gear or vessel bounded on the north by a straight line the universal gear requirements listed requirements. No person or vessel may from 41°18.2′ N. lat., 71°51.5′ W. long. here. 4 The Assistant Administrator may fish with or possess anchored gillnet (Watch Hill Point, RI) south to 40°00′ N. revise these requirements in accordance gear in the Cape Cod Bay Restricted lat. and then east to the eastern edge of with paragraph (i) of this section. Area during the other restricted period the EEZ, and bounded on the south by (i) No buoy line floating at the unless that gear complies with the gear a line at 32°00′ N. lat., and east to the surface. No person or vessel may fish marking requirements specified in eastern edge of the EEZ, unless that gear with anchored gillnet gear that has any paragraph (b) of this section, the complies with the gear marking portion of the buoy line floating at the universal anchored gillnet gear requirements specified in paragraph (b) surface at any time when the buoy line requirements specified in paragraph of this section, the universal trap/pot is directly connected to the gear at the (d)(1) of this section, and the area- gear requirements specified in ocean bottom. If more than one buoy is specific requirements listed in paragraph (c)(1) of this section, and the attached to a single buoy line or if a paragraph (d)(6)(ii) of this section for area-specific requirements listed in high flyer and a buoy are used together the Other Northeast Gillnet Waters Area, paragraphs (c)(9)(ii)(A) and (c)(9)(ii)(B) on a single buoy line, sinking and/or or unless the gear is stowed as specified of this section, or unless the gear is neutrally buoyant line must be used in § 229.2. The Assistant Administrator stowed as specified in § 229.2. The between these objects. may revise these requirements in Assistant Administrator revises these (ii) No wet storage of gear. Anchored accordance with paragraph (i) of this requirements in accordance with gillnet gear must be hauled out of the section. paragraph (i) of this section. water at least once every 30 days. (3) Great South Channel Restricted (iv) Seasonal area-specific gear or (2) Cape Cod Bay Restricted Area—(i) Gillnet Area—(i) Area. The Great South vessel requirements. From November 15 Area. The Cape Cod Bay Restricted Area Channel Restricted Gillnet Area consists to April 15, no person or vessel may fish consists of the Cape Cod Bay right of the area bounded by lines connecting with or possess red crab trap/pot gear in whale critical habitat area specified the following four points: 41°02.2′ N. the area identified in paragraph (c)(9)(i) under 50 CFR 226.203(b), unless the lat./69°02′ W. long., 41°43.5′ N. lat./ of this section that overlaps an area from Assistant Administrator changes that 69°36.3′ W. long., 42°10′ N. lat./68°31′ 32°00′ N. lat. south to 29°00′ N. lat. and area in accordance with paragraph (i) of W. long., and 41°38′ N. lat./68°13′ W. east to the eastern edge of the EEZ, this section. long. This area includes most of the unless that gear complies with the gear (ii) Closure during the winter Great South Channel right whale critical marking requirements specified in restricted period—(A) Winter restricted habitat area specified under 50 CFR paragraph (b) of this section, the 226.203(a), with the exception of the 4 universal trap/pot gear requirements Fishermen are also encouraged to maintain their sliver along the western boundary buoy lines to be as knot-free as possible. Splices are specified in paragraph (c)(1) of this considered to be less of an entanglement threat and described in paragraph (d)(4)(i) of this section, and the area-specific are thus preferable to knots. section. The Assistant Administrator

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may change that area in accordance requirements specified in paragraph (b) south to 40°00′ N. lat. and then east to with paragraph (i) of this section. of this section, the universal anchored the eastern edge of the EEZ, unless that (ii) Closure during the spring gillnet gear requirements specified in gear complies with the gear marking restricted period—(A) Spring restricted paragraph (d)(1) of this section, and the requirements specified in paragraph (b) period. The spring restricted period for area-specific requirements listed in of this section, the universal anchored the Great South Channel Restricted paragraph (d)(6)(ii) of this section for gillnet gear requirements specified in Gillnet Area is from April 1 through the Other Northeast Gillnet Waters Area, paragraph (d)(1) of this section, and the June 30 of each year unless the Assistant or unless the gear is stowed as specified area-specific requirements listed below, Administrator revises that period in in § 229.2. The Assistant Administrator or unless the gear is stowed as specified accordance with paragraph (i) of this may revise these requirements in in § 229.2. The Assistant Administrator section. accordance with paragraph (i) of this may revise these requirements in (B) Closure. During the spring section. accordance with paragraph (i) of this restricted period, no person or vessel (5) Stellwagen Bank/Jeffreys Ledge section. may set, fish with or possess anchored Restricted Area—(i) Area. The (A) Buoy line weak links. All buoys, gillnet gear in the Great South Channel Stellwagen Bank/Jeffreys Ledge flotation devices and/or weights (except Restricted Gillnet Area unless the Restricted Area includes all Federal gillnets, anchors, and leadline woven Assistant Administrator specifies gear waters of the Gulf of Maine, except into the buoy line), such as surface restrictions or alternative fishing those designated as right whale critical buoys, high flyers, sub-surface buoys, practices in accordance with paragraph habitat under 50 CFR 226.203(b), that lie toggles, window weights, etc., must be (i) of this section and the gear or south of 43°15′ N. lat. and west of 70°00′ attached to the buoy line with a weak practices comply with those W. long, and those waters exempted link placed as close to each individual specifications, or unless the gear is under paragraph (a)(3) of this section. buoy, flotation device and/or weight as stowed as specified in § 229.2. The Assistant Administrator may operationally feasible and that meets the (iii) Area-specific gear or vessel change that area in accordance with following specifications: requirements for the other restricted paragraph (i) of this section. (1) The weak link must be chosen period—(A) Other restricted period. The (ii) Year-round area-specific gear or from the following list approved by other restricted period for the Great vessel requirements. No person or vessel NMFS: Swivels, plastic weak links, rope South Channel Restricted Gillnet Area is may fish with or possess anchored of appropriate breaking strength, hog from July 1 though March 31 of each gillnet gear in the Stellwagen Bank/ rings, rope stapled to a buoy stick, or year unless the Assistant Administrator Jeffreys Ledge Restricted Area unless other materials or devices approved in changes that period in accordance with that gear complies with the gear writing by the Assistant Administrator. paragraph (i) of this section. marking requirements specified in A brochure illustrating the techniques (B) Area-specific gear or vessel paragraph (b) of this section, the for making weak links is available from requirements. During the other universal anchored gillnet gear the Regional Administrator, NMFS, restricted period, no person or vessel requirements specified in paragraph Northeast Region upon request. may fish with or possess anchored (d)(1) of this section, and the area- (2) The breaking strength of the weak gillnet gear in the Great South Channel specific requirements listed in links must not exceed 1,100 lb (499.0 Restricted Gillnet Area unless that gear paragraph (d)(6)(ii) of this section for kg). complies with the gear marking the Other Northeast Gillnet Waters Area, (3) Weak links must break cleanly requirements specified in paragraph (b) or unless the gear is stowed as specified leaving behind the bitter end of the line. of this section, the universal anchored in § 229.2. The Assistant Administrator The bitter end of the line must be free gillnet gear requirements specified in may revise these requirements in of any knots when the weak link breaks. paragraph (d)(1) of this section, and the accordance with paragraph (i) of this Splices are not considered to be knots area-specific requirements listed in section. for the purposes of this provision. paragraph (d)(6)(ii) of this section for (6) Other Northeast Gillnet Waters (B) Net panel weak links. The the Other Northeast Gillnet Waters Area, Area—(i) Area. The Other Northeast breaking strength of each weak link or unless the gear is stowed as specified Gillnet Waters Area consists of all U.S. must not exceed 1,100 lb (499.0 kg). The in § 229.2. The Assistant Administrator waters from the U.S./Canada border to weak link requirements apply to all may revise these requirements in Long Island, NY, at 72°30′ W. long. variations in panel size. All net panels accordance with paragraph (i) of this south to 36°33.03′ N. lat. and east to the in a string must contain weak links that section. eastern edge of the EEZ, with the meet one of the following two (4) Great South Channel Sliver exception of the Cape Cod Bay configurations: Restricted Area—(i) Area. The Great Restricted Area, Stellwagen Bank/ (1) Configuration 1. (i) The weak link South Channel Sliver Restricted Area Jeffreys Ledge Restricted Area, Great must be chosen from the following list consists of the area bounded by lines South Channel Restricted Gillnet Area, approved by NMFS: Plastic weak links connecting the following points: Great South Channel Sliver Restricted or rope of appropriate breaking strength. 41°02.2′ N. lat./69°02′ W. long., 41°43.5′ Area, and exempted waters listed in If rope of appropriate breaking strength N. lat./69°36.3′ W. long., 41°40′ N. lat./ paragraph (a)(3) of this section. The is used throughout the floatline or as the 69°45′ W. long., and 41°00′ N. lat./ Assistant Administrator may change up and down line, or if no up and down 69°05′ W. long. The Assistant that area in accordance with paragraph line is present, then individual weak Administrator may change that area in (i) of this section. links are not required on the floatline or accordance with paragraph (i) of this (ii) Year-round area-specific gear or up and down line. A brochure section. vessel requirements. No person or vessel illustrating the techniques for making (ii) Year-round area-specific gear or may fish with or possess anchored weak links is available from the vessel requirements. No person or vessel gillnet gear in the Other Northeast Regional Administrator, NMFS, may fish with or possess anchored Gillnet Waters Area that overlaps an Northeast Region upon request; and gillnet gear in the Great South Channel area from the U.S./Canada border south (ii) One weak link must be placed in Sliver Restricted Area unless that gear to a straight line from 41°18.2′ N. lat., the center of each of the up and down complies with the gear marking 71°51.5′ W. long. (Watch Hill Point, RI) lines at both ends of the net panel; and

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(iii) One weak link must be placed as to May 31, no person or vessel may fish attached to the buoy line with a weak close as possible to each end of the net with or possess anchored gillnet gear in link placed as close to each individual panels on the floatline; and the Other Northeast Gillnet Waters Area buoy, flotation device and/or weight as (iv) For net panels of 50 fathoms (300 that is south of a straight line from operationally feasible and that meets the ft or 91.4 m) or less in length, one weak 41°18.2′ N. lat., 71°51.5′ W. long. (Watch following specifications: link must be placed in the center of the Hill Point, RI) south to 40°00′ N. lat. and (1) The weak link must be chosen floatline; or then east to the eastern edge of the EEZ, from the following list approved by (v) For net panels greater than 50 unless that gear complies with the gear NMFS: Swivels, plastic weak links, rope fathoms (300 ft or 91.4 m) in length, one marking requirements specified in of appropriate breaking strength, hog weak link must be placed at least every paragraph (b) of this section, the rings, rope stapled to a buoy stick, or 25 fathoms (150 ft or 45.7 m) along the universal anchored gillnet gear other materials or devices approved in floatline. requirements specified in paragraph writing by the Assistant Administrator. (2) Configuration 2. (i) The weak link (d)(1) of this section, and the area- A brochure illustrating the techniques must be chosen from the following list specific requirements listed in for making weak links is available from approved by NMFS: Plastic weak links paragraphs (d)(6)(ii)(A) through the Regional Administrator, NMFS, or rope of appropriate breaking strength. (d)(6)(ii)(D) of this section, or unless the Northeast Region upon request. If rope of appropriate breaking strength gear is stowed as specified in § 229.2. (2) The breaking strength of the weak is used throughout the floatline or as the The Assistant Administrator may revise links must not exceed 1,100 lb (499.0 up and down line, or if no up and down these requirements in accordance with kg). line is present, then individual weak paragraph (i) of this section. (3) Weak links must break cleanly links are not required on the floatline or (7) Mid/South Atlantic Gillnet leaving behind the bitter end of the line. up and down line. A brochure Waters—(i) Area. The Mid/South The bitter end of the line must be free illustrating the techniques for making Atlantic Gillnet Waters consists of all of any knots when the weak link breaks. weak links is available from the U.S. waters bounded on the north from Splices are not considered to be knots Regional Administrator, NMFS, Long Island, NY, at 72°30′ W. long. for the purposes of this provision. Northeast Region upon request; and south to 36°33.03′ N. lat. and east to the (B) Net panel weak links. The weak (ii) One weak link must be placed in eastern edge of the EEZ, and bounded link requirements apply to all variations the center of each of the up and down on the south by 32°00′ N. lat., and east in panel size. All net panels must lines at both ends of the net panel; and to the eastern edge of the EEZ. The contain weak links that meet the (iii) One weak link must be placed Assistant Administrator may change following specifications: between the floatline tie loops between that area in accordance with paragraph (1) The breaking strength for each of net panels; and (i) of this section. When the Mid/South the weak links must not exceed 1,100 lb (iv) One weak link must be placed Atlantic Gillnet Waters Area overlaps (499.0 kg). where the floatline tie loops attaches to the Southeast U.S. Restricted Area and (2) The weak link must be chosen the bridle, buoy line, or groundline at its restricted period as specified in from the following list approved by the end of a net string; and paragraphs (f)(1) and (f)(2), then the NMFS: Plastic weak links or rope of (v) For net panels of 50 fathoms (300 closure and exemption for the Southeast appropriate breaking strength. If rope of ft or 91.4 m) or less in length, one weak U.S. Restricted Area as specified in appropriate breaking strength is used link must be placed in the center of the paragraph (f)(2) applies. throughout the floatline then individual floatline; or (ii) Area-specific gear or vessel weak links are not required. A brochure (vi) For net panels greater than 50 requirements. From September 1 illustrating the techniques for making fathoms (300 ft or 91.4 m) in length, one through May 31, no person or vessel weak links is available from the weak link must be placed at least every may fish with or possess anchored Regional Administrator, NMFS, 25 fathoms (150 ft or 45.7 m) along the gillnet gear in the Mid/South Atlantic Northeast Region upon request. floatline. Gillnet Waters unless that gear complies (3) Weak links must be placed in the (C) Anchoring systems. All anchored with the gear marking requirements center of the floatline of each gillnet net gillnets, regardless of the number of net specified in paragraph (b) of this panel up to and including 50 fathoms panels, must be secured at each end of section, the universal anchored gillnet (300 ft or 91.4 m) in length, or at least the net string with a burying anchor (an gear requirements specified in every 25 fathoms (150 ft or 45.7 m) anchor that holds to the ocean bottom paragraph (d)(1) of this section, and the along the floatline for longer panels. through the use of a fluke, spade, plow, following area-specific requirements, or (C) Additional anchoring system and or pick) having the holding capacity unless the gear is stowed as specified in net panel weak link requirements. All equal to or greater than a 22-lb (10.0-kg) § 229.2. The Assistant Administrator gillnets must return to port with the Danforth-style anchor. Dead weights do may revise these requirements in vessel unless the gear meets the not meet this requirement. A brochure accordance with paragraph (i) of this following specifications: illustrating the techniques for rigging section. When the Mid/South Atlantic (1) Anchoring systems. All anchored anchoring systems is available from the Gillnet Waters Area overlaps the gillnets, regardless of the number of net Regional Administrator, NMFS, Southeast U.S. Restricted Area and its panels, must be secured at each end of Northeast Region upon request. restricted period as specified in the net string with a burying anchor (an (D) Groundlines. On or before October paragraphs (f)(1) and (f)(2), then the anchor that holds to the ocean bottom 6, 2008, all groundlines must be closure and exemption for the Southeast through the use of a fluke, spade, plow, comprised entirely of sinking and/or U.S. Restricted Area as specified in or pick) having the holding capacity neutrally buoyant line unless exempted paragraph (f)(2) applies. equal to or greater than a 22-lb (10.0-kg) from this requirement under paragraph (A) Buoy line weak links. All buoys, Danforth-style anchor. Dead weights do (a)(4) of this section. The attachment of flotation devices and/or weights (except not meet this requirement. A brochure buoys, toggles, or other floatation gillnets, anchors, and leadline woven illustrating the techniques for rigging devices to groundlines is prohibited. into the buoy line), such as surface anchoring systems is available from the (iii) Seasonal area-specific gear or buoys, high flyers, sub-surface buoys, Regional Administrator, NMFS, vessel requirements. From September 1 toggles, window weights, etc., must be Northeast Region upon request.

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(2) Net panel weak links. Net panel (B) Closure. During the winter (ii) Closure during the spring weak links must meet the specifications restricted period, no person or vessel restricted period—(A) Spring restricted in this paragraph. The breaking strength may fish with or possess drift gillnet period. The spring restricted period for of each weak link must not exceed 1,100 gear in the Cape Cod Bay Restricted the Great South Channel Restricted lb (499.0 kg). The weak link Area unless the Assistant Administrator Gillnet Area is from April 1 through requirements apply to all variations in specifies gear restrictions or alternative June 30 of each year unless the Assistant panel size. All net panels in a string fishing practices in accordance with Administrator changes that period in must contain weak links that meet one paragraph (i) of this section and the gear accordance with paragraph (i) of this of the following two configurations or practices comply with those section. found in paragraph (d)(6)(ii)(B)(1) or specifications, or unless the gear is (B) Closure. During the spring (d)(6)(ii)(B)(2) of this section. stowed as specified in §229.2. The restricted period, no person or vessel (3) Additional provision for North Assistant Administrator may waive this may set, fish with or possess drift gillnet Carolina. All gillnets set 300 yards closure for the remaining portion of the gear in the Great South Channel (274.3 m) or less from the shoreline in winter restricted period in any year Restricted Gillnet Area unless the North Carolina must meet the anchoring through a notification in the Federal Assistant Administrator specifies gear system and net panel weak link Register if NMFS determines that right restrictions or alternative fishing requirements in paragraphs whales have left the restricted area and practices in accordance with paragraph (d)(7)(ii)(C)(1) and (d)(7)(ii)(C)(2) of this are unlikely to return for the remainder (i) of this section and the gear or section, or the following: of the season. practices comply with those (i) The entire net string must be less (iii) Area-specific gear or vessel specifications, or unless the gear is than 300 yards (274.3 m) from shore. requirements for the other restricted stowed as specified in § 229.2. (ii) The breaking strength of each period—(A) Other restricted period. The (iii) Area-specific gear or vessel weak link must not exceed 600 lb (272.2 other restricted period for the Cape Cod requirements for the other restricted period—(A) Other restricted period. The kg). The weak link requirements apply Bay Restricted Area is from May 16 other restricted period for the Great to all variations in panel size. through December 31 of each year South Channel Restricted Gillnet Area is (iii) All net panels in a string must unless the Assistant Administrator from July 1 though March 31 of each contain weak links that meet one of the changes that period in accordance with year unless the Assistant Administrator following two configuration paragraph (i) of this section. (B) Area specific gear or vessel changes that period in accordance with specifications found in paragraph requirements. During the other paragraph (i) of this section. (d)(6)(ii)(B)(1) or (d)(6)(ii)(B)(2) of this restricted period, no person or vessel (B) Area-specific gear or vessel section. may fish with or possess drift gillnet requirements. During the other (iv) Regardless of the number of net gear in the Cape Cod Bay Restricted restricted period, no person or vessel panels, all anchored gillnets must be Area unless that gear complies with the may fish with or possess drift gillnet secured at the offshore end of the net gear marking requirements specified in gear in the Great South Channel string with a burying anchor (an anchor paragraph (b) of this section, or unless Restricted Gillnet Area unless that gear that holds to the ocean bottom through the gear is stowed as specified in § complies with the gear marking the use of a fluke, spade, plow, or pick) 229.2. Additionally, no person or vessel requirements specified in paragraph (b) having a holding capacity equal to or may fish with or possess drift gillnet of this section, or unless the gear is greater than an 8-lb (3.6-kg) Danforth- gear at night in the Cape Cod Bay stowed as specified in § 229.2. style anchor, and at the inshore end of Restricted Area during the other Additionally, no person or vessel may the net string with a dead weight equal restricted period unless that gear is fish with or possess drift gillnet gear at to or greater than 31 lb (14.1 kg). tended, or unless the gear is stowed as night in the Great South Channel (D) Groundlines. On or before October specified in § 229.2. During that time, Restricted Gillnet Area unless that gear 6, 2008, all groundlines must be all drift gillnet gear set by that vessel in is tended, or unless the gear is stowed comprised entirely of sinking and/or the Cape Cod Bay Restricted Area must as specified in § 229.2. During that time, neutrally buoyant line unless exempted be removed from the water and stowed all drift gillnet gear set by that vessel in from this requirement under paragraph on board the vessel before a vessel the Great South Channel Restricted (a)(4). The attachment of buoys, toggles, returns to port. The Assistant Gillnet Area must be removed from the or other floatation devices to Administrator may revise these water and stowed on board the vessel groundlines is prohibited. requirements in accordance with before a vessel returns to port. The (8) [Reserved] paragraph (i) of this section. Assistant Administrator may revise (e) Restrictions applicable to drift (2) Great South Channel Restricted these requirements in accordance with gillnet gear—(1) Cape Cod Bay Gillnet Area—(i) Area. The Great South paragraph (i) of this section. Restricted Area—(i) Area. The Cape Cod Channel Restricted Gillnet Area consists (3) Great South Channel Sliver Bay Restricted Area consists of the Cape of the area bounded by lines connecting Restricted Area—(i) Area. The Great Cod Bay right whale critical habitat area the following four points: 41°02.2′ N. South Channel Sliver Restricted Area specified under 50 CFR 226.203(b), lat./69°02′ W. long., 41°43.5′ N. lat./ consists of the area bounded by lines unless the Assistant Administrator 69°36.3′ W. long., 42°10′ N. lat./68°31′ connecting the following points: changes that area in accordance with W. long., and 41°38′ N. lat./68°13′ W. 41°02.2′ N. lat./69°02′ W. long., 41°43.5′ paragraph (i) of this section. long. This area includes most of the N. lat./69°36.3′ W. long., 41°40′ N. lat./ (ii) Closure during the winter Great South Channel right whale critical 69°45′ W. long., and 41°00′ N. lat./ restricted period—(A) Winter restricted habitat area specified under 50 CFR 69°05′ W. long. The Assistant period. The winter restricted period for 226.203(a), with the exception of the Administrator may change that area in this area is from January 1 through May sliver along the western boundary accordance with paragraph (i) of this 15 of each year, unless the Assistant described in paragraph (e)(3)(i) of this section. Administrator changes that period in section. The Assistant Administrator (ii) Year-round area-specific gear or accordance with paragraph (i) of this may change that area in accordance vessel requirements. No person or vessel section. with paragraph (i) of this section. may fish with or possess drift gillnet

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gear in the Great South Channel Sliver that area in accordance with paragraph U.S. Restricted Area as specified in Restricted Gillnet Area unless that gear (i) of this section. paragraph (f)(2) applies. complies with the gear marking (ii) Year-round area-specific gear or (ii) Area-specific gear or vessel requirements specified in paragraph (b) vessel requirements. No person or vessel requirements. From September 1 of this section, or unless the gear is may fish with or possess drift gillnet through May 31, no person or vessel stowed as specified in § 229.2. gear in the Other Northeast Gillnet may fish with or possess drift gillnet Additionally, no person or vessel may Waters Area unless that gear complies gear at night in the Mid/South Atlantic fish with or possess drift gillnet gear at with the gear marking requirements Gillnet Waters Area unless that gear night in the Great South Channel Sliver specified in paragraph (b) of this complies with the gear marking Restricted Area unless that gear is section, or unless the gear is stowed as requirements specified in paragraph (b) tended, or unless the gear is stowed as specified in § 229.2. Additionally, no of this section, or unless the gear is specified in § 229.2. During that time, person or vessel may fish with or stowed as specified in § 229.2. During all drift gillnet gear set by that vessel in possess drift gillnet gear at night in the that time, no person may fish with or the Great South Channel Sliver Other Northeast Gillnet Waters Area possess drift gillnet gear at night in the Restricted Area must be removed from unless that gear is tended, or unless the Mid/South Atlantic Gillnet Waters Area the water and stowed on board the gear is stowed as specified in § 229.2. unless that gear is tended, or unless the vessel before a vessel returns to port. During that time, all drift gillnet gear set gear is stowed as specified in § 229.2. The Assistant Administrator may revise by that vessel in the Other Northeast During that time, all drift gillnet gear set these requirements in accordance with Gillnet Waters Area must be removed by that vessel in the Mid/South Atlantic paragraph (i) of this section. from the water and stowed on board the Gillnet Waters Area must be removed (4) Stellwagen Bank/Jeffreys Ledge vessel before a vessel returns to port. from the water and stowed on board the Restricted Area—(i) Area. The The Assistant Administrator may revise vessel before a vessel returns to port. Stellwagen Bank/Jeffreys Ledge these requirements in accordance with The Assistant Administrator may revise Restricted Area includes all Federal paragraph (i) of this section. these requirements in accordance with waters of the Gulf of Maine, except (iii) Seasonal area-specific gear or paragraph (i) of this section. When the those designated as right whale critical vessel requirements. From September 1 Mid/South Atlantic Gillnet Waters Area habitat under 50 CFR 226.203(b), that lie to May 31, no person or vessel may fish overlaps the Southeast U.S. Restricted south of 43°15′ N. lat. and west of 70°00′ with or possess drift gillnet gear in the Area and its restricted period as W. long. The Assistant Administrator Other Northeast Gillnet Waters Area specified in paragraphs (f)(1) and (f)(2), may change that area in accordance that is south of a straight line from then the closure and exemption for the with paragraph (i) of this section. ° ′ ° ′ Southeast U.S. Restricted Area as (ii) Year-round area-specific gear or 41 18.2 N. lat., 71 51.5 W. long. (Watch Hill Point, RI) south to 40°00′ N. lat. and specified in paragraph (f)(2) applies. vessel requirements. No person or vessel (7) [Reserved] may fish with or possess drift gillnet then east to the eastern edge of the EEZ, unless that gear complies with the gear (f) Restrictions applicable to the gear in the Stellwagen Bank/Jeffreys Southeast U.S. Restricted Area—(1) Ledge Restricted Area unless that gear marking requirements specified in paragraph (b) of this section, or unless Area. The Southeast U.S. Restricted complies with the gear marking Area consists of the area bounded by requirements specified in paragraph (b) the gear is stowed as specified in §§229.2. Additionally, no person or straight lines connecting the following of this section, or unless the gear is points in the order stated from south to stowed as specified in § 229.2. vessel may fish with or possess drift gillnet gear at night in the Other north, unless the Assistant Additionally, no person or vessel may Administrator changes that area in fish with or possess drift gillnet gear at Northeast Gillnet Waters Area unless that gear is tended, or unless the gear is accordance with paragraph (i) of this night in the Stellwagen Bank/Jeffreys section: Ledge Area unless that gear is tended, stowed as specified in § 229.2. During that time, all drift gillnet gear set by that or unless the gear is stowed as specified Point N. lat. W. long. in § 229.2. During that time, all drift vessel in the Other Northeast Gillnet gillnet gear set by that vessel in the Waters Area must be removed from the SERA1 ...... 27°51′ (1) Stellwagen Bank/Jeffreys Ledge water and stowed on board the vessel SERA2 ...... 27°51′ 80°00′ Restricted Area must be removed from before a vessel returns to port. The SERA3 ...... 32°00′ 80°00′ Assistant Administrator may revise SERA4 ...... 32°36′ 78°52′ the water and stowed on board the ° ′ ° ′ vessel before a vessel returns to port. these requirements in accordance with SERA5 ...... 32 51 78 36 paragraph (i) of this section. SERA6 ...... 33°15′ 78°24′ The Assistant Administrator may revise ° ′ ° ′ (6) Mid/South Atlantic Gillnet Waters SERA7 ...... 33 27 78 04 these requirements in accordance with SERA8 ...... (2) 78°33.9′ paragraph (i) of this section. Area—(i) Area. The Mid/South Atlantic (5) Other Northeast Gillnet Waters Gillnet Waters consists of all U.S. waters 1 Florida shoreline. Area—(i) Area. The Other Northeast bounded on the north from Long Island, 2 South Carolina shoreline. Gillnet Waters Area consists of all U.S. NY at 72°30′ W. long. south to 36°33.03′ (i) Southeast U.S. Restricted Area N. waters from the U.S./Canada border to N. lat. and east to the eastern edge of the The Southeast U.S. Restricted Area N Long Island, NY, at 72°30′ W. long. EEZ, and bounded on the south by consists of the Southeast U.S. Restricted south to 36°33.03′ N. lat. and east to the 32°00′ N. lat., and east to the eastern Area from 29°00′ N. lat. northward. eastern edge of the EEZ, with the edge of the EEZ. The Assistant (ii) Southeast U.S. Restricted Area S. exception of the Cape Cod Bay Administrator may change that area in The Southeast U.S. Restricted Area S Restricted Area, Stellwagen Bank/ accordance with paragraph (i) of this consists of the Southeast U.S. Restricted Jeffreys Ledge Restricted Area, Great section. When the Mid/South Atlantic Area southward of 29°00′ N. lat. South Channel Restricted Gillnet Area, Gillnet Waters Area overlaps the (2) Restricted periods, closure, and Great South Channel Sliver Restricted Southeast U.S. Restricted Area and its exemptions—(i) Restricted periods. The Area, and exempted waters listed in restricted period as specified in restricted period for the Southeast U.S. paragraph (a)(3) of this section. The paragraphs (f)(1) and (f)(2), then the Restricted Area N is from November 15 Assistant Administrator may change closure and exemption for the Southeast through April 15, and the restricted

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period for the Southeast U.S. Restricted from December 1 through December 31, drum; and all buoys, high flyers, and Area S is from December 1 through and from March 1 through March 31 if: anchors are disconnected from all March 31, unless the Assistant (A) Gillnet mesh size is between 3.5 gillnets. No fish may be possessed Administrator revises the restricted inches (8.9 cm) and 4 7⁄8 inches (12.4 aboard such a vessel in transit. period in accordance with paragraph (i) cm) stretched mesh; (vi) [Reserved] of this section. (B) A valid commercial vessel permit (g) Restrictions applicable to the (ii) Closure for gillnets. (A) Except as for Spanish mackerel has been issued to Other Southeast Gillnet Waters Area— provided under paragraph (f)(2)(v) of the vessel in accordance with 50 CFR (1) Area. The Other Southeast Gillnet this section, fishing with or possessing 622.4(a)(2)(iv) and is on board; Waters Area consists of the area from gillnet in the Southeast U.S. Restricted (C) No person may fish with, set, 32°00′ N. lat. (near Savannah, GA) south Area N during the restricted period is place in the water, or have on board a to 27°51′ N. lat. for the Southeast prohibited. vessel a gillnet with a float line longer Atlantic gillnet fishery, and from 32°00 (B) Except as provided under than 800 yards (2,400 ft, 732 m); N. lat. south to 26°46.50′ N. lat. (near paragraph (f)(2)(iii) of this section and (D) No person may fish with, set, or West Palm Beach, FL) for the (f)(2)(iv) of this section, fishing with place in the water more than one gillnet Southeastern U.S. Atlantic shark gillnet gillnet in the Southeast U.S. Restricted at any time; fishery, and extending from 80°00′ W. Area S during the restricted period is (E) No more than two gillnets, long. east to the eastern edge of the EEZ, prohibited. including any net in use, may be for both the Southeast Atlantic gillnet (iii) Exemption for Southeastern U.S. possessed at any one time; provided, and Southeastern U.S. Atlantic gillnet Atlantic shark gillnet fishery. Fishing however, that if two gillnets, including fisheries unless the Assistant with gillnet for sharks with webbing of any net in use, are possessed at any one Administrator changes this area in 5 inches (12.7 cm) or greater stretched time, they must have stretched mesh accordance with paragraph (i) of this mesh is exempt from the restrictions sizes (as allowed under the regulations) section. under paragraph (f)(2)(ii)(B) if: that differ by at least .25 inch (.64 cm); (2) Restrictions for Southeastern U.S. (A) The gillnet is deployed so that it (F) No person may soak a gillnet for Atlantic shark gillnet fishery. No person encloses an area of water; more than 1 hour. The soak period or vessel may fish with or possess (B) A valid commercial directed shark begins when the first mesh is placed in gillnet gear for shark with webbing of 5 limited access permit has been issued to the water and ends either when the first inches (12.7 cm) or greater stretched the vessel in accordance with 50 CFR mesh is retrieved back on board the mesh in the Other Southeast Gillnet 635.4(e) and is on board; vessel or the gathering of the gillnet is Waters Area north of 29°00′ N. lat. (near (C) No net is set at night or when begun to facilitate retrieval on board the New Smyrna Beach, FL) from November visibility is less than 500 yards (1,500 ft, vessel, whichever occurs first; providing 15 through April 15 and south of 29°00′ 460 m); that, once the first mesh is retrieved or N. lat. from December 1 through March (D) The gillnet is removed from the the gathering is begun, the retrieval is 31 unless that gear complies with the water before night or immediately if continuous until the gillnet is gear marking requirements specified in visibility decreases below 500 yards completely removed from the water; paragraph (b) of this section, and the set (1,500 ft, 460 m); (G) No net is set at night or when restrictions listed below, or unless the (E) Each set is made under the visibility is less than 500 yards (1,500 ft, gear is stowed as specified in § 229.2. observation of a spotter plane; 460 m); The Assistant Administrator may revise (F) No gillnet is set within 3 nautical (H) The gillnet is removed from the these requirements in accordance with miles (5.6 km) of a right, humpback, or water before night or immediately if paragraph (i) of this section. fin whale; visibility decreases below 500 yards (i) Set restrictions. All gillnets must (G) The gillnet is removed (1,500 ft, 460 m); comply with the following set immediately from the water if a right, (I) No net is set within 3 nautical restrictions: humpback, or fin whale moves within 3 miles (5.6 km) of a right, humpback, or (A) No net is set within 3 nautical nautical miles (5.6 km) of the set gear; fin whale; miles (5.6 km) of a right, humpback, or (H) The gear complies with the gear (J) The gillnet is removed immediately fin whale; and marking requirements specified in from the water if a right, humpback, or (B) If a right, humpback, or fin whale paragraph (b) of this section; and fin whale moves within 3 nautical miles moves within 3 nautical miles (5.6 km) (I) The operator of the vessel calls the (5.6 km) of the set gear; and of the set gear, the gear is removed Southeast Fisheries Science Center (K) The gear complies with the gear immediately from the water. Panama City Laboratory in Panama City, marking requirements specified in (3) Restrictions for Southeast Atlantic FL, not less than 48 hours prior to paragraph (b) of this section, the gillnet fishery. No person or vessel may departing on any fishing trip in order to universal anchored gillnet gear fish with or possess gillnet gear in the arrange for observer coverage. If the requirements specified in paragraph Other Southeast Gillnet Waters Area, Panama City Laboratory requests that an (d)(1) of this section, and the area- except as provided in paragraph (g)(2) of observer be taken on board a vessel specific requirements for anchored this section, north of 29°00′ N. lat. from during a fishing trip at any time from gillnets specified in paragraphs November 15 through April 15 and December 1 through March 31 south of (d)(7)(ii)(A) through (d)(7)(ii)(D) of this south of 29°00′ N. lat. from December 1 29°00′ N. lat., no person may fish with section for the Mid/South Atlantic through March 31 unless that gear such gillnet aboard that vessel in the Gillnet Waters. complies with the gear marking Southeast U.S. Restricted Area S unless (v) Exemption for vessels in transit requirements specified in paragraph (b) an observer is on board that vessel with gillnet aboard. Possession of gillnet of this section, the universal anchored during the trip. aboard a vessel in transit is exempt from gillnet gear requirements specified in (iv) Exemption for Spanish Mackerel the restrictions under paragraph paragraph (d)(1) of this section, and the component of the Southeast Atlantic (f)(2)(ii)(A) of this section if: All nets are area-specific requirements for anchored gillnet fishery. Fishing with gillnet for covered with canvas or other similar gillnets specified in paragraphs Spanish mackerel is exempt from the material and lashed or otherwise (d)(7)(ii)(A) through (d)(7)(ii)(D) of this restrictions under paragraph (f)(2)(ii)(B) securely fastened to the deck, rail, or section for the Mid/South Atlantic

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Gillnet Waters, or unless the gear is April 1 through June 30, the Southeast (i)(3)(i)(B) and (i)(3)(ii)(B) of this section stowed as specified in § 229.2. The U.S. Restricted Area N from November supercede requirements found at Assistant Administrator may revise 15 to April 15, or the Southeast U.S. § 229.32 (b)–(d) when the former are these requirements in accordance with Restricted Area S from December 1 more restrictive than the latter. For paragraph (i) of this section. through March 31 as the result of an example, the closures applicable to trap/ (4) [Reserved] entanglement by trap/pot or gillnet gear pot and gillnet gear in the Great South (h) Restrictions applicable to the allowed to be used in those areas and Channel found in paragraphs (c)(3)(ii) Southeast U.S. Monitoring Area—(1) times, the Assistant Administrator shall and (d)(3)(ii) of this section are more Area. The Southeast U.S. Monitoring close that area to that gear type (i.e., restrictive than the gear modifications ° ′ Area consists of the area from 27 51 N. trap/pot or gillnet) for the rest of that described in this section and, therefore, lat. (near Sebastian Inlet, FL) south to time period and for that same time supercede them. A copy of a chart ° ′ 26 46.50 N. lat. (near West Palm Beach, period in each subsequent year, unless depicting these areas is available upon FL), extending from the shoreline or the Assistant Administrator revises the request from the Regional ° ′ exemption line out to 80 00 W. long., restricted period in accordance with Administrator, NMFS, Northeast unless the Assistant Administrator paragraph (i)(2) of this section or unless Region, 1 Blackburn Drive, Gloucester, changes that area in accordance with other measures are implemented under MA 01930. paragraph (i) of this section. paragraph (i)(2) of this section. (i) SAM West—(A) Area. SAM West (2) Restrictions for Southeastern U.S. (2) Other special measures. The consists of all waters bounded by Atlantic shark gillnet fishery. No person Assistant Administrator may revise the straight lines connecting the following or vessel may fish with or possess requirements of this section through a points in the order stated: gillnet gear for shark with webbing of 5 publication in the Federal Register if: inches (12.7 cm) or greater stretched (i) NMFS verifies that certain gear SAM WEST mesh in the Southeast U.S. Monitoring characteristics are both operationally Area from December 1 through March effective and reduce serious injuries and Point N. lat. W. long 31 unless that gear complies with the mortalities of endangered whales; gear marking requirements specified in (ii) New gear technology is developed 1W ...... 42°30′ 70°30′ paragraph (b) of this section, or unless 2W ...... 42°30′ 69°24′ and determined to be appropriate; ° ′ ° ′ the gear is stowed as specified in (iii) Revised breaking strengths are 3W ...... 41 48.9 69 24 4W ...... 41°40′ 69°45′ § 229.2, and the person or vessel determined to be appropriate; 5W ...... 41°40′ 69°57′ satisfies the vessel monitoring system (iv) New marking systems are and along the eastern shoreline of Cape Cod and observer requirements listed below. developed and determined to be to The Assistant Administrator may revise appropriate; 6W ...... 42°04.8′ 70°10′ these requirements in accordance with (v) NMFS determines that right 7W ...... 42°12′ 70°15′ paragraph (i) of this section. whales are remaining longer than 8W ...... 42°12′ 70°30′ (i) Vessel monitoring systems. No expected in a closed area or have left person or vessel may fish with or earlier than expected; (B) Gear or vessel requirements. possess gillnet gear for shark with (vi) NMFS determines that the Unless otherwise authorized by the webbing of 5 inches (12.7 cm) or greater boundaries of a closed area are not Assistant Administrator, in accordance stretched mesh in the Southeast U.S. appropriate; with paragraph (i)(2) of this section, Monitoring Area during the restricted (vii) Gear testing operations are from March 1 through April 30, no period unless the operator of the vessel considered appropriate; or person or vessel may fish with or is in compliance with the vessel (viii) Similar situations occur. possess anchored gillnet or trap/pot gear monitoring system (VMS) requirements (3) Seasonal Area Management (SAM) in SAM West unless that gear complies found in 50 CFR 635.69. Program. Until October 6, 2008, in with the following gear modifications, (ii) At-sea observer coverage. When addition to existing requirements for or unless the gear is stowed as specified selected, vessels are required to take vessels deploying anchored gillnet or in § 229.2. observers on a mandatory basis in trap/pot gear in the Other Northeast (1) Anchored gillnet gear—(i) compliance with the requirements for Gillnet Waters, Northern Inshore State Groundlines. All groundlines must be at-sea observer coverage found in 50 Trap/Pot Waters, Trap/Pot Waters, made entirely of sinking and/or CFR 229.7. Any vessel that fails to carry Offshore Trap/Pot Waters, Great South neutrally buoyant line. Floating an observer once selected is prohibited Channel Restricted Gillnet Area (July 1 groundlines are prohibited. The from fishing pursuant to 50 CFR part through July 31), Great South Channel attachment of buoys, toggles, or other 635. Sliver Restricted Area (May 1 through floatation devices to groundlines is (iii) [Reserved] July 31), Great South Channel Restricted prohibited. (i) Other provisions. In addition to Trap/Pot Area (July 1 through July 31), (ii) Buoy lines. All buoy lines must be any other emergency authority under and Stellwagen Bank/Jeffreys Ledge composed of sinking line except the the Marine Mammal Protection Act, the Restricted Area (anchored gillnet and bottom portion of the line, which may Endangered Species Act, the Magnuson- trap/pot area) found at § 229.32 (b)–(d), be a section of floating line not to Stevens Fishery Conservation and a vessel may fish in the SAM Areas as exceed one-third the overall length of Management Act, or other appropriate described in paragraphs (i)(3)(i)(A) and the buoy line. authority, the Assistant Administrator (i)(3)(ii)(A) of this section, which (iii) Buoy line weak links. All buoys, may take action under this section in overlay the previously mentioned areas, flotation devices and/or weights (except the following situations: provided the gear or vessel complies gillnets, anchors, and leadline woven (1) Entanglements in critical habitat with the requirements specified in into the buoy line), such as surface or restricted areas. If a serious injury or paragraphs (i)(3)(i)(B) and (i)(3)(ii)(B) of buoys, high flyers, sub-surface buoys, mortality of a right whale occurs in the this section during the times specified toggles, window weights, etc., must be Cape Cod Bay Restricted Area from in those paragraphs. These requirements attached to the buoy line with a weak January 1 through May 15, in the Great are in addition to requirements found in link placed as close to each individual South Channel Restricted Area from § 229.32 (b)–(d). The requirements in buoy, flotation device and/or weight as

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operationally feasible that has a (except traps/pots, anchors, and leadline SAM EAST maximum breaking strength of 1,100 lb woven into the buoy line), such as (499.0 kg). The weak link must be surface buoys, high flyers, sub-surface Point N. Lat. W. Long. chosen from the following list approved buoys, toggles, window weights, etc., 1E ...... 42°30′ 69°45′ by NMFS: Swivels, plastic weak links, must be attached to the buoy line with ° ′ ° ′ rope of appropriate breaking strength, 2E ...... 42 30 67 27 a weak link placed as close to each 3E ...... 42°09′ 67°08.4′ hog rings, rope stapled to a buoy stick, individual buoy, flotation device, and/ 4E ...... 41°00′ 69°05′ or other materials or devices approved or weight as operationally feasible that 5E ...... 41°40′ 69°45′ in writing by the Assistant has a maximum breaking strength of up Administrator. Weak links must break to 600 lb (272.2 kg). The weak link must (B) Gear or vessel requirements. cleanly leaving behind the bitter end of be chosen from the following list Unless otherwise authorized by the the line. The bitter end of the line must approved by NMFS: Swivels, plastic Assistant Administrator, in accordance be free of any knots when the weak link weak links, rope of appropriate breaking with paragraph (i)(2) of this section, breaks. Splices are not considered to be strength, hog rings, rope stapled to a from May 1 through July 31, no person knots for the purposes of this provision. buoy stick, or other materials or devices or vessel may fish with or possess A brochure illustrating the techniques approved in writing by the Assistant anchored gillnet or trap/pot gear in for making weak links is available from Administrator. Weak links must break SAM East unless that gear complies the Regional Administrator, NMFS, cleanly leaving behind the bitter end of with the gear modifications found in Northeast Region upon request. the line. The bitter end of the line must paragraphs (i)(3)(i)(B)(1) and (iv) Net panel weak links. The be free of any knots when the weak link (i)(3)(i)(B)(2) of this section, or unless breaking strength of each weak link breaks. Splices are not considered to be the gear is stowed as specified in must not exceed 1,100 lb (499.0 kg). The knots for the purposes of this provision. § 229.2. weak link requirements apply to all A brochure illustrating the techniques variations in panel size. All net panels for making weak links is available from PART 635—ATLANTIC HIGHLY in a string must contain weak links that the Regional Administrator, NMFS, MIGRATORY SPECIES meet one of the following two Northeast Region upon request. configuration specifications found in I 6. The authority citation for 50 CFR (iv) Offshore Trap/Pot Waters Area paragraph (d)(6)(ii)(B)(1) or part 635 continues to read as follows: (d)(6)(ii)(B)(2) of this section. and Great South Channel Restricted (v) Anchoring systems. All anchored Trap/Pot Area (that overlaps with LMA Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. gillnets, regardless of the number of net 2/3 Overlap and LMA 3 only) buoy line 1801 et seq. panels, must be secured at each end of weak links. All buoys, flotation devices, I 7. In § 635.69, paragraph (a)(3) is the net string with a burying anchor (an and/or weights (except traps/pots, revised to read as follows: anchor that holds to the ocean bottom anchors, and leadline woven into the through the use of a fluke, spade, plow, buoy line), such as surface buoys, high § 635.69 Vessel monitoring systems. or pick) having the holding capacity flyers, sub-surface buoys, toggles, (a) * * * equal to or greater than a 22-lb (10.0-kg) window weights, etc., must be attached (3) Whenever a vessel, issued a Danforth-style anchor. Dead weights do to the buoy line with a weak link placed directed shark LAP, is away from port not meet this requirement. A brochure as close to each individual buoy, with a gillnet on board during the right illustrating the techniques for rigging flotation device, and/or weight as whale calving season specified in the anchoring systems is available from the operationally feasible that has a regulations implementing the Atlantic Regional Administrator, NMFS, maximum breaking strength of up to Large Whale Take Reduction Plan Northeast Region upon request. 1,500 lb (680.4 kg). The weak link must Regulations in § 229.32 of this title. (2) Trap/pot gear—(i) Groundlines. be chosen from the following list * * * * * All groundlines must be made entirely approved by NMFS: swivels, plastic of sinking and/or neutrally buoyant line. weak links, rope of appropriate breaking PART 648—FISHERIES OF THE Floating groundlines are prohibited. The strength, hog rings, rope stapled to a NORTHEASTERN UNITED STATES attachment of buoys, toggles, or other buoy stick, or other materials or devices floatation devices to groundlines is I 8. The authority citation for 50 CFR approved in writing by the Assistant part 648 continues to read as follows: prohibited. Administrator. Weak links must break (ii) Buoy lines. All buoy lines must be cleanly leaving behind the bitter end of Authority: 16 U.S.C. 1801 et seq. composed of sinking line except the the line. The bitter end of the line must bottom portion of the line, which may I 9. In § 648.264, paragraph (a)(6)(i) is be free of any knots when the weak link be a section of floating line not to revised to read as follows: breaks. Splices are not considered to be exceed one-third the overall length of knots for the purposes of this provision. § 648.264 Gear requirements/restrictions. the buoy line. (iii) Northern Inshore State Trap/Pot A brochure illustrating the techniques (a) * * * Waters, Northern Nearshore Trap/Pot for making weak links is available from (6) Additional gear requirements. (i) Waters Areas, Stellwagen Bank/Jeffreys the Regional Administrator, NMFS, Vessels must comply with the gear Ledge Restricted Area, and Great South Northeast Region upon request. regulations found at § 229.32 of this Channel Restricted Trap/Pot Area (that (ii) SAM East—(A) Area. SAM East title. overlaps with LMA 2 and Outer Cape consists of all waters bounded by * * * * * LMA only) buoy line weak links. All straight lines connecting the following [FR Doc. 07–4904 Filed 10–1–07; 8:45 am] buoys, flotation devices, and/or weights points in the order stated: BILLING CODE 3510–22–P

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