51970 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

1There are no Alaska Native or Indian tribal 

organizations participating in fisheries managed 

under the Atlantic Large Whale Take Reduction 

Team. 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 229 and 697 

[Docket No. FR–210827–0171] 

RIN 0648–BJ09 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan Regulations; Atlantic Coastal 

Fisheries Cooperative Management 

Act Provisions; American Lobster 

Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is amending the 

regulations implementing the Atlantic 

Large Whale Take Reduction Plan to 

reduce the incidental mortality and 

serious injury to North Atlantic right 

whales (Eubalaena glacialis), fin whales 

(Balaenoptera physalus), and humpback 

whales (Megaptera novaeangliae) in 

northeast commercial lobster and Jonah 

crab trap/pot fisheries to meet the goals 

of the Marine Mammal Protection Act 

and the Endangered Species Act. In 

addition, this action also makes a small 

revision to Federal regulations 

implemented under the Atlantic State 

Marine Fisheries Commission’s 

Interstate Fishery Management Plan for 

American Lobster to increase the 

maximum length of a lobster trap trawl 

groundline. This action is necessary to 

reduce the risks to North Atlantic right 

whales and other large whales 

associated with the presence of fishing 

gear in waters used by these animals. 

DATES: This rule is effective October 18, 

2021. Compliance for 50 CFR 

229.32(b)(2)(i), (b)(3), (c)(2)(i) through 

(iv), and (c)(8) and (9) is not required 

until May 1, 2022 (see SUPPLEMENTARY

INFORMATION for more details). 

ADDRESSES: Copies of the Final 

Environmental Impacts Statement 

(FEIS) including the Record of Decision, 

Regulatory Impact Review (RIR), and 

Regulatory Flexibility Analysis (RFA) as 

well as supporting documents are 

accessible via the internet on the 

Atlantic Large Whale Take Reduction 

Plan website at: Fisheries.NOAA.gov/ 

ALWTRP or you may request copies by 

email from Marisa Trego: Marisa.Trego@

noaa.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

should be sent within 30 days of 

publication of this rule to 

www.reginfo.gov/public/do/PRAMain or 

by email to Ainsley Smith at 

Ainsley.Smith@noaa.gov. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Marisa Trego, Marine Mammal Take 

Reduction Team Coordinator, phone: 

(978) 282–8484 or email: Marisa.Trego@

noaa.gov 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

Background 

Changes to the Atlantic Large Whale Take 

Reduction Plan 

Changes to the Plan to Reduce the Number 

of Vertical Buoy Lines 

Changes to the Plan to Related to Seasonal 

Restricted Areas 

Changes to the Plan to Establish Weak 

Rope Requirements 

Changes to the Plan for Gear Marking 

Requirements 

Regulatory Language Changes (Definitions) 

Changes to Federal Regulations 

Implementing the American Lobster 

Management Plan 

Comments and Responses 

Classification 

References 

List of Subjects 

Background 

This final rule implements 

modifications to the Atlantic Large 

Whale Take Reduction Plan (ALWTRP 

or Plan) as informed by the Atlantic 

Large Whale Take Reduction Team 

(ALWTRT or Team) and contained in 

the proposed rule, as modified based 

upon public input, including 

modifications deemed necessary by 

NMFS to meet the goals of the Marine 

Mammal Protection Act (MMPA) and 

Endangered Species Act (ESA). The 

final rule includes a one-month delay in 

effectiveness to allow fishermen time to 

move gear away from seasonal restricted 

areas. Compliance with gear 

configuration modifications described 

below including those changes that 

require fishermen to modify gear 

marking, change gear configurations to 

increase traps fished on trawls, or 

modify buoy lines to accommodate new 

weak rope and weak insertions is not 

required until May 1, 2022. Delayed 

compliance will provide fishermen with 

the time necessary to purchase materials 

and reconfigure their gear while 

conducting other regular gear 

maintenance activities. 

The ALWTRP was originally 

developed pursuant to section 118 of 

the MMPA (16 U.S.C. 1387) to reduce 

mortality and serious injury of three 

stocks of large whales (fin, humpback, 

and North Atlantic right) incidental to 

Category I and II fisheries. Under the 

MMPA, a strategic stock of marine 

mammals is defined as a stock: (1) For 

which the level of direct human-caused 

mortality exceeds the Potential 

Biological Removal (PBR) level; (2) 

which, based on the best available 

scientific information, is declining and 

is likely to be listed as a threatened 

species under the ESA of 1973 within 

the foreseeable future; or (3) which is 

listed as a threatened or endangered 

species under the ESA or is designated 

as depleted under the MMPA (16 U.S.C. 

1362(19)). When incidental mortality or 

serious injury of marine mammals from 

commercial fishing exceeds a stock’s 

PBR level, the MMPA directs NMFS to 

convene a take reduction team made up 

of stakeholders including 

representatives of Federal agencies, each 

coastal state which has fisheries which 

interact with the species or stock, 

appropriate Regional Fishery 

Management Councils, interstate 

fisheries commissions, academic and 

scientific organizations, environmental 

groups, all commercial and recreational 

fisheries groups and gear types which 

incidentally take the species or stock, 

and if relevant, Alaska Native 

organizations or Indian tribal 

organizations. 1

The ALWTRT was established in 1996 

and has 60 members, including about 22 

trap/pot and gillnet fishermen or fishery 

representatives. The background for the 

take reduction planning process and 

initial development of the Plan is 

provided in the preambles to the 

proposed (62 FR 16519, April 7, 1997), 

interim final (62 FR 39157, July 22, 

1997), and final (64 FR 7529, February 

16, 1999) rules implementing the initial 

plan. The Team met and recommended 

modifications to the Plan, implemented 

by NMFS through rulemaking, several 

times since 1997 in an ongoing effort to 

meet the MMPA take reduction goals. 

Despite modifications to the Plan 

(notably the use of sinking groundlines 

effective in 2009 (72 FR 57104) and 

efforts to reduce the number of vertical 

buoy lines and an expansion of the 

Massachusetts Restricted Area (MRA) 

effective in 2015 (79 FR 36586, 79 FR 

73848, and 80 FR 30367)), mortalities 

and serious injuries of right whales in 

U.S. gear and first seen in U.S. waters 

at levels above PBR have continued. 

NMFS informed the Team in late 2017 

that it was necessary to reconvene to 

develop recommendations to reduce the 

impacts of U.S. commercial fisheries on 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51971 

large whales with a focus on reducing 

risk to the declining North Atlantic right 

whale population (Pace et al. 2017). 

Seventeen right whale mortalities were 

observed in 2017, including many 

determined to have been caused by 

vessel strikes and entanglements, 

leading to a declaration of a right whale 

Unusual Mortality Event. An annual 

average of five entanglement-related 

mortalities and serious injuries were 

documented from 2009 through 2018. 

Most could not be identified to a 

country of origin; only 0.2 per year 

could be attributed with certainty to 

U.S. fisheries, only 0.7 per year to 

Canadian fisheries, and an average of 

four per year could not be attributed to 

either country. For the purposes of 

creating a risk reduction target, NMFS 

assigned half of the unknown 

entanglement incidents to U.S. fisheries. 

Under this assumption, based on 

documented mortality and serious 

entanglement incidents, a 60-percent 

reduction would be needed to reduce 

right whale mortality and serious injury 

in U.S. commercial fisheries from an 

annual average PBR of 2.2 to below the 

current PBR of 0.8 per year. However, 

documented mortalities and serious 

injuries represent a minimum count and 

unobserved mortalities and serious 

injuries are not considered in the 60- 

percent target risk reduction. An upper 

bound target of 80 percent considered 

estimated mortalities generated by the 

Pace et al. 2017 population model that 

estimates unobserved mortality (Hayes 

et al. 2019). Currently, there is no way 

to definitively apportion unseen but 

estimated mortality across causes 

(fishery interaction vs. vessel strike) or 

country of origin (United States vs. 

Canada). For the purposes of 

developing a conservative target to meet 

the MMPA goals, in 2019 NMFS 

assumed that half of the estimated 

undocumented incidents occurred in 

U.S. waters and were caused primarily 

by incidental entanglements. However, 

given the assumptions and other sources 

of uncertainty in the 80-percent target, 

as well as the challenges achieving such 

a target, the Team focused on 

developing recommendations to achieve 

the lower 60-percent target. 

Greater detail on right whale 

population estimates, the stock’s 

decline, changes in distribution and 

reproductive rates, and entanglementrelated mortalities and serious injuries 

documented in recent years can be 

found in the preamble to the proposed 

rule (85 FR 86878 December 31, 2020), 

and are briefly summarized in Chapter 

2 of the FEIS. 

During a Team meeting in April 2019, 

the Team recommended a framework of 

measures to modify lobster and Jonah 

crab trap/pot trawls within the 

Northeast Region Trap/Pot Management 

Area (Northeast Region) intended to 

reduce risk of mortality and serious 

injury to right whales incidentally 

entangled in buoy line in those fisheries 

by at least 60 percent. The Team’s nearconsensus recommendations included 

jurisdictionally specific combinations of 

line reduction measures to reduce right 

whale encounters with buoy lines and 

weak rope requirements to increase the 

chance of right whales parting the rope 

(self-releasing) to reduce mortalities and 

serious injuries when entanglements do 

occur. As described in more detail in 

the preamble to the proposed rule and 

in Chapter 3 of the FEIS, the Team’s 

recommendations were not fully crafted 

as regulatory elements, and the 

proposed rule and draft environmental 

impact statement (DEIS) included 

modifications to the Team’s 

recommendations based on public 

scoping and input from New England 

states related to implementation and 

operational feasibility. The proposed 

rule analyzed in the DEIS included less 

line reduction and weak rope than the 

Team recommended, and included 

additional measures to reduce right 

whale co-occurrence through new or 

expanded seasonal restricted areas. 

Although the Team did not make 

recommendations on the existing weak 

link requirement at the buoy line or on 

the proposed change to transition 

seasonal restricted areas to be closures 

to fishing with buoy lines rather than 

closures to fishing altogether, those 

measures were also proposed and 

analyzed. Finally, gear marking 

recommendations were discussed by the 

Team and received general support, but 

specific gear marking requirements were 

never taken to a vote for consensus, and 

gear marking requirements were not 

included in the Team’s 

recommendations. Comments on the 

proposed rule and DEIS as well as new 

information regarding right whales were 

considered in the development of this 

final rule. 

The public’s vast input into this 

regulatory effort demonstrates 

stakeholder interest in conserving and 

recovering the North Atlantic right 

whale while also ensuring the 

development of operationally feasible 

and economical risk reduction 

measures. Benefits of large whale 

protection are difficult to describe in 

monetary value, but include nonconsumer use benefits, non-use benefits, 

and potential costs savings from current 

disentanglements efforts. Economic 

research has demonstrated that society 

places economic value on 

environmental assets, whether or not 

those assets are ever directly exploited. 

The large number of commenters shows 

that society places real (and potentially 

measurable) economic value on simply 

knowing that large whale populations 

are flourishing in their natural 

environment (often referred to as 

‘‘existence value’’) and will be 

preserved for the enjoyment of future 

generations. Collateral benefits to other 

species are also incurred through buoy 

line reductions that benefit other 

endangered species of large whales and 

endangered sea turtles, and weaker rope 

that would benefit other large whales. 

Protection to large whales under the 

take reduction process, however, cannot 

be done without an economic impact. 

The annual cost of compliance for this 

rulemaking is $9.8–19.2 million, 

representing 1.5 to 3 percent of the 2019 

landings value of the fisheries. 

However, given the input of fishermen 

and fishery managers, operationally 

feasible measures were developed that, 

relative to the other alternative 

analyzed, achieve the purposes of this 

rulemaking with nearly the same risk 

reduction but a much lesser economic 

impact on regulated entities than the 

analyzed non-preferred Alternative. 

Changes to the Atlantic Large Whale 

Take Reduction Plan 

This rule modifies the Plan in 50 CFR 

part 229, specifically the Northeast 

Region (Maine through Rhode Island) 

American lobster and Jonah crab trap/ 

pot fishery. Described in more detail 

below, this rule: Increases the minimum 

number of traps per trawl based on area 

fished and distance fished from shore in 

the Northeast Region; modifies existing 

restricted areas from seasonal fishing 

closures to seasonal closures to fishing 

with persistent buoy lines; expands the 

geographic extent of the Massachusetts 

Restricted Area to include 

Massachusetts state waters north to the 

New Hampshire border; establishes two 

new restricted areas that are seasonally 

closed to fishing for lobster or Jonah 

crab with persistent buoy lines; requires 

modified buoy lines to incorporate rope 

engineered to break at no more than 

1,700 pounds (lb) (771.1 kilograms (kg)) 

or weak insertion configurations that 

break at no more than 1,700 lb (771.1 

kg); and requires additional marks on 

buoy lines to differentiate vertical buoy 

lines by principal port state, includes 

unique marks for Federal waters, and 

expands requirements into areas 

previously exempt from gear marking. 

51972 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

Changes to the Plan To Reduce the 

Number of Vertical Buoy Lines 

The rule increases the minimum 

number of traps between buoy lines, 

known as trawling up, to reduce the 

number of buoy lines. The trawl 

configurations are established by area 

fished and distance fished from shore in 

the Northeast Region (waters offshore of 

Maine (ME), New Hampshire (NH), 

Massachusetts (MA), and Rhode Island 

(RI)) as detailed in Table 1. The rule 

describes the areas established in Maine 

regulations and known as Maine Lobster 

Management Zones (Zones) (ME DMR 

13–188 Chapter 25.94). As a 

conservation equivalency measure for 

vessels fishing in Zones, this rule allows 

fishermen to choose to either trawl up 

to the minimum established traps/trawl 

or fish a trawl with half the minimum 

number of traps with a buoy line on 

only one end. 

TABLE 1—LINE REDUCTION MEASURES

Area Traps/trawl 

ME 3 nm (5.56 km)–6 nm *, Zone A West ............................................... 8 traps/trawl per two buoy lines or 4 traps/trawl per one buoy line. 

ME 3 nm (5.56 km)–6 nm *, Zone B ........................................................ 5 traps/trawl per one buoy line. 

ME 3 nm (5.56 km)–6 nm*, Zones C, D, E, F, G .................................... 10 traps/trawl per two buoy lines or 5 traps/trawl per one buoy line. 

ME 3 nm (5.56 km)–12 nm (22.22 km), Zone A East ............................. 20 traps/trawl per two buoy lines or 10 traps/trawl per one buoy line. 

ME 6*–12 nm, Zone A West .................................................................... 15 traps/trawl per two buoy lines or 8 traps/trawl per one buoy line. 

ME 6*–12 nm, Zone B, D, E, F ................................................................ 10 traps/trawl per two buoy lines or 5 traps/trawl per one buoy line 

(status quo in D, E, & F). 

ME 6*–12 nm, Zone C, G ........................................................................ 20 traps/trawl per two buoy lines or 10 traps/trawl per one buoy line. 

MA Lobster Management Area (LMA) 1, 6*–12 nm ................................ 15 traps/trawl. 

LMA 1 & Outer Cape Cod (OCC) 3–12 nm (5.56–22.22 km) ................. 15 traps/trawl. 

LMA 1 over 12 nm (22.22 km) ................................................................. 25 traps/trawl. 

LMA3, North of 50 fathom line on the south end of Georges Bank ........ 45 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) 

to 1.75 nm (3.24 km). 

LMA3, South of 50 fathom line on the south end of Georges Bank ....... 35 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) 

to 1.75 nm (3.24 km). 

LMA3, Georges Basin Restricted Area .................................................... 50 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) 

to 1.75 nm (3.24 km). 

* ME 6 is a line offshore of Maine that is approximately 6 nm (11.1 km) from the coast. 

Changes to the Plan Related to Seasonal 

Restricted Areas 

The rule modifies closures in two 

restricted areas, the Massachusetts 

Restricted Area and the Great South 

Channel Restricted Area, by 

implementing closures to buoy lines 

rather than closures to the harvest of 

lobster or Jonah crab by the trap-pot 

fishery. The change would not include 

the Outer Cape Cod (OCC) Lobster 

Management Area (LMA), which 

remains closed to the lobster and Jonah 

crab trap/pot fishery under 

Massachusetts and Federal regulations 

(32 Mass. Reg 6.02 paragraph(7)(a) and 

50 CFR 697.7(c)(1)(xxx)) implementing 

the Atlantic State Marine Fisheries 

Commission’s (Commission) Interstate 

Fishery Management Plan for American 

Lobster. This modification allows 

fishermen with authorization to be 

exempt from surface marking 

requirements (buoys, radar reflectors, 

and high flyers) to fish these areas if 

they fish without the use of persistent 

buoy lines by remotely retrieving traps 

from the bottom using an acoustic 

signal, or through other means that do 

not require a persistent buoy line. This 

measure is intended to accelerate 

research and development of buoyless 

fishing methods, commonly termed 

‘‘ropeless’’ fishing, so that in the future, 

commercial fishing using ropeless 

technology can be used in place of 

seasonal closures to allow trap/pot 

fishing while protecting right whales. 

NMFS has invested a substantial 

amount of funding in developing 

ropeless fishing gear. We anticipate that 

these efforts to facilitate and support the 

industry’s development of ropeless gear 

will continue, pending appropriations. 

Given the high cost of ropeless retrieval 

technology, for the foreseeable future, 

industry participants are likely to 

depend on loans of gear purchased by 

the Northeast Fisheries Science Center 

for ropeless research collaborations. By 

2025, we anticipate this would allow up 

to 33 fishermen to fish with up to 10 

trawls each in the Northeast Region, 

including the restricted areas. Because 

they would be fishing under Federal 

exempted fishing permits (EFP) or 

equivalent state authorization, 

conditions to minimize impacts on the 

natural and human environment will 

likely include some area restrictions, 

reporting and monitoring requirements, 

gear marking of any stored buoy line, 

and evidence of communication and 

collaboration with adjacent fixed and 

mobile gear fishermen to minimize gear 

conflicts. 

This rule also extends the area of the 

Massachusetts Restricted Area north to 

the New Hampshire border for state 

waters, mirroring the Massachusetts 

2021 modification of the state water 

closure (322 CMR 12.04(2)). This final 

rule does not adopt the Massachusetts 

seasonal extension through May 15, but 

instead retains the February through 

April seasonal closure. 

This rule also establishes two new 

restricted areas that would be seasonally 

closed to fishing for lobster and Jonah 

crab with persistent buoy lines. The 

LMA 1 Restricted Area would be closed 

to buoy lines from October through 

January. The South Island Restricted 

Area would be closed to buoy lines from 

February through April. Figure 1 shows 

existing (dark gray) and new (light gray) 

seasonal restricted areas. 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51973 

Changes to the Plan To Establish Weak 

Rope Requirements 

This rule removes the requirement for 

a weak link at the buoy in the Northeast 

Region commercial lobster and Jonah 

crab trap/pot fisheries. As described in 

Table 2, all buoy lines in these fisheries 

will have weak rope or weak insertions 

well below the surface system. There is 

little information available to determine 

the efficacy of weak links at the buoy in 

reducing entanglement severity. Models 

suggest that when a whale encounters 

rope in the water column, the rope parts 

below the encounter (Knowlton et al. 

2020). Retention of the buoy may have 

some benefits: Buoys have identifying 

marks that could improve our 

understanding of set locations of 

retrieved gear or may provide resistance 

and pull gear away from a whale, 

improving the chances of shedding gear. 

Depending on the area fished and 

distance from shore, this rule requires 

all buoy lines in the fisheries to use 

engineered weak rope or weak inserts as 

described in Table 2. Under most 

operational conditions, weak rope or a 

weak insertion within the top half of a 

buoy line would not be subject to forces 

approaching or greater than 1,700 lb 

(771.1 kg) during hauls. Weak insertion 

placement locations were developed 

and proposed by Maine Department of 

Marine Resources (DMR), with much 

input from Maine fishermen who 

identified measures that could work 

with their existing gear, even with the 

longer trawl lengths being implemented. 

These measures reduce economic 

impacts and concerns that longer trawl 

lengths would result in strong and more 

dangerous buoy ropes. 

TABLE 2—WEAK ROPE MEASURES

Area Weak rope or weak insertions 

Northeast Region ..................................................................... For all buoy lines incorporating weak line or weak insertions, remove weak link 

requirement at surface system. 

ME state waters outside of exemption line .............................. 1 weak insertion 50 percent down the line. 

MA State Waters ...................................................................... Fully weak line or weak inserts every 60 ft (18.3 m) in top 75 percent of line. 

NH state waters ........................................................................ 1 weak insertion 50 percent down the line. 

RI wtate waters ........................................................................ Fully weak line or weak inserts every 60 ft (18.3 m) in top 75 percent of line. 

ME Zone A west, B, C, D, E; Federal waters 3–12 nm (5.56– 

22.22 km).

2 weak insertions, at 25 percent and 50 percent down line. 

ME Zone A east, F, and G; Federal waters 3–12 nm (5.56– 

22.22 km).

1 weak insertion 33 percent down the line. 

MA and NH LMA 1 , OCC; Federal waters 3–12 nm (5.56– 

22.22 km).

2 weak insertions, at 25 percent and 50 percent down line. 


ER17SE21.000</GPH>

Figure 1. New (light gray) and existing (dark gray) seasonal restricted areas. 
51974 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

TABLE 2—WEAK ROPE MEASURES—Continued 

Area Weak rope or weak insertions 

LMA 1 & OCC over 12 nm (22.22 km) .................................... 1 weak insertion 33 percent down the line. 

LMA 2 ....................................................................................... Fully weak line or weak inserts every 60 ft (18.3 m) in top 75 percent of line. 

LMA 3 ....................................................................................... One buoy line weak to 75 percent. 

A number of approved weak 

insertions are detailed in this regulation. 

To be approved, these weak inserts were 

demonstrated to break at 1,700 lb (771.1 

kg) or less through 10 trials with a 

calibrated rope breaking machine, they 

are considered replicable, and are large 

enough and created with a contrasting 

color so they can be detected for 

enforcement purposes. 

This rule also includes a provision for 

the Greater Atlantic Regional 

Administrator to approve in writing 

new weak insertions that are 

demonstrated to break at 1,700 lb (771.1 

kg) or less and to include information 

about approved weak insertions on the 

ALWTRP website. The current 

regulations indicate that the NMFS 

Assistant Administrator would approve 

new weak insertions, as well as weak 

link and gear marking modifications. In 

actual practice, the NMFS Greater 

Atlantic Regional Administrator makes 

that determination, therefore these edits 

are made for accuracy. A definition for 

the Regional Administrator was added 

to the definitions list in 50 CFR part 

229. 

Changes to the Plan for Gear Marking 

Requirements 

This rule modifies gear marking 

requirements by establishing a statespecific color for Maine (purple), New 

Hampshire (yellow), Massachusetts 

(red), and Rhode Island (silver/gray) 

vessels, except those fishing in LMA 3 

which retains black as the primary gear 

mark color. For ropeless fishing 

operations working under EFPs or state 

authorizations, gear marking is likely to 

be recommended as a permit condition 

for any stored buoy line that is retrieved 

remotely, and a yellow/black striped 

mark is anticipated. All vessels in the 

Northeast Region are required to include 

a large 3-foot (0.9-meter (m)) solid mark 

within the surface system using paint or 

tape, and additional 1-foot (0.3-m) green 

marks (no marking convention defined; 

tape, paint, twine, etc.) within 6 inches 

(15.24 centimeters (cm)) of each areaspecific gear mark to distinguish state 

from Federal waters or, in the case of 

LMA 3 vessels, to distinguish Northeast 

Region vessels from vessels fishing in 

the southern and western LMA 3 waters. 

For dual permitted vessels that fish in 

both state and Federal waters, the green 

gear mark can be created with a twine 

or other marking system that can be 

applied or removed during transit 

between state and Federal water fishing 

locations, or with paint, if applicable 

state regulations permit Federal marks 

to remain on buoy lines fished in state 

waters by dual permitted vessels. Gear 

marks are all required to be 1-foot long 

or greater when installed to distinguish 

them from Canadian marks, which 

currently are required to be at least 6 

inches (15.24 cm) in length. The term 

‘‘state’’ refers to the state associated 

with the vessel’s principal port as 

declared on state and Federal permits. A 

principal port is considered the city and 

state where the majority of landings 

occur. Although more than 90 percent of 

lobster and Jonah crab Federal permit 

holders identify the same state as their 

principal port, mailing address, and 

home port (city and state where a vessel 

is moored), the port of landing was 

selected based on recommendations 

from some state managers, and is 

considered to be the area where fishing 

occurs. 

TABLE 3—GEAR MARKING MODIFICATIONS

Area Northeast Region Lobster and Jonah Crab Trap/Pot 

Gear Marking Requirement 

State Waters ....................................................... One 3-foot (0.9-m) state-specific colored mark (based on principal port state) in surface system within 2 fathoms (3.7 m) of the buoy. At least two 1-foot (0.3-m) marks in the state 

(principal port) color in the primary buoy line, one in the top half and one in the bottom half. 

Maine exempt waters will be regulated by Maine and not included in Federal regulations. 

All Northeast Region Federal waters, except 

LMA 3.

A 3-foot (0.9-m) state-specific colored mark within two fathoms (3.7m) of the buoy. At least 

three 1-foot (0.3-m) marks in the state (principal port) color on the top, middle and bottom of 

the primary buoy line. Additional Northeast Region Federal water mark within 6 inches of 

each state-specific color: 1-foot (0.3-m) long green marks. For dual permitted vessels, state 

regulations will determine whether green Federal markings can remain on gear being fished 

in state waters. 

LMA 3 .................................................................. A 3-foot (0.9-m) black mark within 2 fathoms (3.7 m) of the buoy. At least three 1-foot (0.3-m) 

black marks on the top, middle and bottom of the primary buoy line. Additional Northeast 

Region Federal water mark within 6 inches of each black mark: 1-foot (0.3-m) long green 

marks within 6 inches (15.24 cm). 

Regulatory Language Changes 

(Definitions) 

This rule adds three definitions to 

§ 229.2. A definition is added for 

‘‘Lobster Management Area’’ to 

reference the management areas that 

were developed for the American 

lobster fishery, citing the Atlantic 

Coastal Fisheries Cooperative 

Management Act regulations at 50 CFR 

697.18. A definition for ‘‘surface 

system’’ is added for clarity related to 

the gear marking requirements. A 

definition for ‘‘Regional Administrator’’ 

is added to clarify approvals for any 

new weak insertions and provide 

information about approved weak 

insertions on the ALWTRP website. 

A housekeeping edit is made to the 

Table in paragraph (c)(2(iv) completing 

a blank cell in the table by clarifying 

that there is no minimum number of 

traps per trawl in the Southern 

Nearshore Trap/Pot Waters Area. 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51975 

Changes to Federal Regulations 

Implementing the American Lobster 

Management Plan 

In addition to changes to 50 CFR part 

229, this rule makes two minor 

revisions to the Federal regulations 

implemented under the Commission’s 

Interstate Fishery Management Plan for 

American Lobster at 50 CFR 697.21. To 

accommodate conservation 

equivalencies in Maine Lobster 

Management Zones, this rule modifies 

the requirement that limits lobster trap 

trawls with a single buoy to trawls of no 

more than three traps to allow up to ten 

traps on a trawl attached and marked 

with a single buoy by Maine permitted 

vessels fishing in some Maine Zones 

within LMA1. To accommodate changes 

in the number of traps per trawl in LMA 

3, this rule also increases the maximum 

length of a lobster trap trawl from 1.5 

nm (2.78 km) to 1.75 nm (3.24 km), as 

measured from radar reflector to radar 

reflector. 

Comments and Responses 

We published the Proposed Rule to 

Amend the Atlantic Large Whale Take 

Reduction Plan to Reduce Risk of 

Serious Injury and Mortality to North 

Atlantic Right Whales Caused by 

Entanglement in Northeast Crab and 

Lobster Trap/Pot Fisheries and DEIS on 

December 31, 2020. A 60-day public 

comment period began on December 31, 

2020, and ended on March 1, 2021 (85 

FR 86878, December 31, 2020). We 

reviewed and considered all written and 

oral public submissions received during 

the public comment period. Comments 

on the proposed rule and DEIS were 

accepted as electronic submissions via 

regulations.gov on docket number 

NOAA–NMFS–2020–0031, as electronic 

submissions via email to a NMFS 

representative, and comments submitted 

orally at public information sessions 

and hearings. 

In January 2021, we held four public 

information sessions and in February 

2021, we held four public hearings, all 

virtual due to the global pandemic. The 

sessions were organized by region, 

though everyone was welcome to attend 

any session. Although the purpose of 

the January meetings was to provide 

information and answer questions, we 

accepted oral comments on the 

proposed rule and the DEIS at all eight 

meetings. A total of 122 speakers 

submitted comments orally at public 

information sessions or public hearings. 

Many of the speakers submitted more 

than one comment, and several 

submitted comments at more than one 

session. If an individual commented at 

more than one session, the individual 

was counted as a unique speaker on 

each day. We received 2 comments from 

academic/scientific individuals or 

organizations, 3 fishing industry 

associations, 27 non-governmental 

organizations, 27 members of the public, 

59 fishermen, 2 state fishery resource 

managers, and 2 state/Federal 

legislators. 

We received 171,213 written 

comments on the Proposed Rule and the 

DEIS through the comment portal. Of 

these, six comments from NonGovernmental Organizations were 

entered as counting for more than one 

comment: Pew Charitable Trusts: 

47,699; Conservation Law Foundation: 

1,192; Humane Society of the U.S: 

15,922; Oceana: 18,440; Natural 

Resources Defense Council: 33,045; and 

Riverkeepers: 4. Five additional 

comments from Non-Governmental 

Organization were entered as one 

comment, but had thousands of 

signatures attached: International Fund 

for Animal Welfare: 31,912; Whale and 

Dolphin Conservation: 3,629; 

Environment America: 11,727; Center 

for Biological Diversity: 26,594; and 

Environmental Action: 11,135. 

All of the above-referenced 

comments, which represent up to 

201,269 people, were in favor of 

stronger regulations to protect North 

Atlantic right whales. They strongly 

favored the following measures: Longer 

and larger restricted areas, increased 

gear marking, transition to ropeless gear, 

and a risk reduction target of more than 

60 percent. While many were in favor of 

weak rope or weak link requirements, 

many also voiced concerns that 1700 lb 

breaking strength has not been proven to 

reduce entanglements and could still 

severely entangle juveniles and calves. 

In addition, the vast majority urged 

NMFS to use the most updated 

population data in setting risk reduction 

targets and recommended the use of 

emergency measures to take action 

immediately. 

After accounting for the bulk 

submissions, we received 53,585 

comments uploaded through the 

regulations.gov portal, as well as 9 

comments emailed directly to our office, 

3 of which were added to 

regulations.gov, and are included in the 

53,585 total above. After running a 

deduplication analysis, identifying 

additional campaign emails not detected 

by the deduplication analysis, and 

reviewing the entries for double 

submissions or submissions of 

supporting documentation separate 

from the original comment letter, we 

received approximately 1,076 unique 

comments that were not clearly part of 

a coordinated campaign. We received 28 

comments from academic/scientific 

individuals or organizations, 2 Federal 

agencies, 1 Federal resource manager, 2 

fishery management associations, 10 

fishing industry associations, 2 

manufacturers, 71 non-governmental 

organizations, 617 members of the 

public, 300 fishermen, 2 representatives 

from other industries, 32 state/Federal 

legislators, 7 state fishery resource 

managers, and 2 towns. 

As many of the speakers who 

submitted comments orally also 

submitted comments through the 

regulations.gov portal, we considered 

each individual’s comments, both oral 

and written, as one submission. This 

gives us a total of 1,129 unique 

submissions. Combining both written 

and oral submissions, and excluding 

duplicates, we received submissions 

from 28 academic/scientific individuals 

or organizations, 2 Federal agencies, 1 

Federal resource manager, 2 fishery 

management associations, 10 fishing 

industry associations, 2 manufacturers, 

76 non-governmental organizations, 628 

members of the public, 336 fishermen, 

2 representatives from other industries, 

33 state/Federal legislators, 7 state 

fishery resource managers, and 2 towns. 

Of the 336 unique commenters who 

identified themselves as fishermen, 

either directly or through context, 312 

voiced opposition to all or part of the 

rule, 19 commented on particular 

provisions, but did not expressly 

support or oppose, and 5 supported the 

general idea of the rule, though had 

specific comments on some measures. 

Of the ten fishing industry groups, eight 

opposed all or part of the rule, one gave 

specific recommendations, but did 

expressly support or oppose, and one 

supported the general idea of the rule. 

The primary concerns raised by 

fishermen are that right whales are not 

in the areas that they fish and this rule 

will not protect right whales, but 

instead will place a large economic 

burden on fishermen with no benefit for 

the whales (>147); the economic impact 

of this rule will put them out of 

business and devastate coastal 

communities (>126); and that ropeless 

fishing is not yet and may never be 

feasible on a large scale (>105). 

Of the 628 unique commenters who 

identified themselves as members of the 

public, either directly or through 

context, the vast majority (534) 

supported this rule, but expressed the 

opinion that the rule did not go far 

enough to protect right whales, with 84 

suggesting NMFS use emergency 

authority to implement immediate 

protections for whales. Only 54 

expressed opposition to the rule. A 

small number suggested that this rule 

51976 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

should be withdrawn because it does 

not provide adequate levels of 

protection for right whales, and NMFS 

should start over. 

To summarize, overall, nearly 59 

percent of unique commenters 

supported the Proposed Rule in whole 

or in part, with the majority expressing 

the opinion that the proposed 

regulations should be strengthened to 

provide more protection to right whales. 

A little over 34 percent of commenters 

opposed the rule in whole or in part, 

and about 4 percent suggested that the 

rule should be withdrawn because it 

does not provide adequate levels of 

protection for right whales, and NMFS 

should start over. About 4 percent of 

commenters did not express support or 

opposition, but suggested specific 

measures or strategies that NMFS 

should employ. In addition, about 14 

percent of commenters (who had either 

supported the rule or suggested starting 

over) wanted NMFS to take emergency 

action. 

We identified a total of 187 distinct 

substantive comments that were within 

the scope of the current rulemaking. The 

majority of these comments were 

submitted by multiple people, some of 

them by thousands of people. We also 

received several comments that were 

outside the scope of the current 

rulemaking, which are summarized 

below. The final rule and analyses in 

the FEIS are related to amendments to 

the Plan. The Plan and the take 

reduction process are restricted to the 

monitoring and management of 

incidental mortality and serious injury 

of marine mammals in U.S. commercial 

fisheries. Because these comments were 

out of the scope of the final rule and the 

FEIS, we did not provide responses in 

this document. 

Below, we summarize the comments 

received in the topic category, and then 

provide specific comments and 

responses to each. Responses may refer 

to portions of the FEIS or final rule that 

have been modified as a result of 

comments (to obtain copies of the FEIS 

see ADDRESSES). We also made changes 

to the DEIS and the rule in response to 

the comments, where appropriate, 

including updates to data where the 

comments affect the impact analysis. 

Technical or editorial comments on the 

DEIS merely pointing out a mistake or 

missing information were addressed 

directly in the body of the FEIS and 

final rule. 

Due to the large number of comments, 

they are organized according to the 

following specific topics: 1. Canada, 2. 

Economics, 3. Enforcement, 4. Gear 

Marking, 5. Legal Issues, 6. Line/Effort 

Reduction, 7. Management, 8. Research, 

9. Restricted Areas, 10. Ropeless Gear, 

11. Stressors, 12. Trawls, 13. Weak 

Links/Inserts/Rope, 14. Out of Scope. 

1. Canada 

Of the 1,129 unique comments, 

around 43 suggested that Canadian 

fishing gear is largely to blame for the 

recent right whale mortalities and 

entanglements, and that Canada needs 

to do more to reduce right whale 

mortalities and serious injuries. In 

addition to these commenters, dozens of 

others felt it was unfair that U.S. 

fishermen are being asked to make 

expensive and time-consuming changes 

to fishing gear and practices, and many 

questioned NMFS’s apportionment of 

unknown entanglements in determining 

how much risk reduction was needed to 

reduce U.S. commercial fishery 

interactions to the PBR level established 

under the MMPA. 

Comment 1.1: Canadian fishing gear is 

primarily responsible for recent right 

whale entanglements and mortalities, 

not U.S. fishing gear, and NMFS should 

not attribute 50 percent of the unknown 

gear to the United States. 

Response: In recent years, gear has 

only been retrieved from about 54 

percent of the detected right whale 

entanglement events. The majority of 

the entangling line retrieved is of 

unknown origin. During 2010–2019, out 

of 114 documented right whale 

entanglement incidents, gear was 

present on 62 whales. Of these, gear 

could be identified to a country in only 

25 incidents (22 percent of all observed 

incidents): 18 were documented 

Canadian cases (14 Canadian snow crab, 

4 unknown Canadian) and 7 were 

documented U.S. cases (1 gillnet, 1 

lobster, 2 unknown trap, 3 unknown 

United States). The remaining 37 

incidents involved gear of unknown 

origin (6 unknown gillnet/mesh, 1 

unknown trap, 30 unknown line). Out of 

approximately 1.24 million buoy lines 

within the Northeast waters from Rhode 

Island to Maine, we estimate that 72 

percent of buoy lines were unmarked 

under current ALWTRP gear marking 

guidelines although that percentage was 

reduced when Maine required gear 

marks on lobster trap buoy lines 

beginning in September 2020. 

It is important to consider that most 

right whale mortalities are never seen. 

Entanglement incidents detected in the 

Gulf of St. Lawrence in recent years 

from May to early November may reflect 

some observer bias as the result of the 

extensive survey effort since late 

summer 2017 in an enclosed water 

body. During most of that season, the 

whereabouts of the two-thirds of the 

population that were not detected in the 

Gulf of St. Lawrence remains largely 

unknown. While acoustic detections 

indicate that right whales are present in 

U.S. waters year round, counts of 

individuals when spread over large 

areas remain outside of current 

capabilities but, given Gulf of St. 

Lawrence counts, the entire population 

could be present in U.S. waters from 

December through April and up to two 

thirds of them could be present year 

round. U.S. fisheries fish many more 

buoy lines than Canadian fisheries. That 

exposure to U.S. fisheries is balanced, 

however, by the many broad scale gear 

modifications in place, as well as 

seasonal restricted areas implemented 

under the Plan. However lacking an 

actual estimate of the proportion of the 

right whale population’s exposure to 

U.S. or Canadian fisheries each year, in 

2019 NMFS apportioned unknown 

mortality using a 50/50 split that 

recognized that more whales may be 

exposed over more months to fishing 

gear in U.S. waters (suggesting higher 

opportunity for entanglement) but broad 

based U.S. conservation measures 

would reduce mortality and serious 

injury. This apportionment also 

recognizes that mortality is occurring on 

both sides of the border, and that U.S. 

and Canadian measures are needed to 

reduce human-caused mortality to this 

transboundary species to recover the 

population. For more, see FEIS Section 

2.1.5. 

Comment 1.2: Canada’s current 

regulations are insufficient, as they rely 

on dynamic management, which could 

fail due to lack of visual or acoustic 

detections, and the delay of weak rope 

implementation until the end of 2022. 

Response: Under the MMPA, NMFS is 

responsible for U.S. fisheries and 

protected species within our borders 

and on the high seas. We work closely 

with our Canadian partners through 

bilateral meetings, coordinated 

disentanglement efforts, distribution 

and abundance data, health assessment, 

and gear analysis. Since July 2017, 

Canada has shown a commitment to 

reduce the impacts of their fisheries on 

the North Atlantic right whale 

population and they affirm that 

commitment in these bilateral efforts. 

The Canadian Department of Fisheries 

and Oceans (DFO) is responsible for 

fisheries management and protected 

species within their borders, and any 

concerns about their management 

measures should be directed to Canada’s 

DFO. 

Comment 1.3: Canada and the United 

States should collaborate in monitoring, 

data collection, and technology 

development to understand whale 

movements and sources of mortality, 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51977 

and the United States should pressure 

Canada into doing more. 

Response: NMFS coordinates with 

Canada on right whale conservation and 

recovery efforts through bilateral 

discussions and frequent information 

sharing with the DFO and Transport 

Canada at both the senior leadership 

and staff levels. NMFS senior leadership 

have had discussions with leadership 

from DFO and Transport Canada on 

conservation and management efforts 

for right whales since 2019, and plan to 

continue these discussions. We also 

coordinate and cooperate with DFO and 

Transport Canada through the Canada 

and United States Bilateral Working 

Group on North Atlantic Right Whales. 

This includes discussing lessons 

learned on fishing and vessel 

regulations, planning joint scientific 

activities (e.g., aerial surveys), and 

coordinating collaboration across all 

right whale conservation efforts. 

Comment 1.4: Maine’s Department of 

Marine Resources should be allowed to 

participate in all future bilateral 

meetings with Canada. 

Response: The U.S. Government 

routinely conducts bilateral 

consultations with foreign counterparts 

on issues of fisheries management. 

Several of these ongoing consultations 

are founded in formal collaborative 

agreements, while others occur through 

less formal arrangements. Discussions 

often include sensitive topics, such as 

respective positions being considered 

for multilateral organizations. 

Consequently, such consultations are 

restricted to Federal government 

personnel. 

2. Economics 

Approximately 143 commenters 

voiced concerns that this rule would 

cause them extreme economic hardship, 

with some stating that this rule would 

put them out of business. Many 

commenters expressed concern about 

the effects of this rule on the economic 

health of their communities, the supply 

chain, and on the state of Maine. Several 

questioned NMFS’ economic analysis 

and suggested additional factors to 

consider in the economic analysis. 

Others were concerned that economics 

inappropriately and illegally dictated 

the alternatives considered in this rule; 

see the Legal Issues section for 

responses to those comments. 

Comment 2.1: The new regulations 

will drive up costs, making fishermen 

unable to compete with Canada, 

resulting in the loss of an iconic U.S. 

fishery. 

Response: Under the Fish and Fish 

Product Import Provisions of the MMPA 

published on August 15, 2016 (81 FR 

54389), fish and fish products from 

fisheries identified by the NOAA 

Assistant Administrator in the List of 

Foreign Fisheries can only be imported 

into the United States if the harvesting 

nation has applied for and received a 

comparability finding from NMFS. 

Nations have until November 30, 2021, 

to apply for Comparability Findings for 

their fisheries. Beginning January 1, 

2023, all nations seeking to continue 

exporting fish and fish products to the 

United States must have received 

Comparability Findings. Beginning in 

2023, Canadian lobster and snow crab 

fisheries will face similar conservation 

costs for large whale protection if they 

wish to enter the U.S. seafood market. 

The new MMPA import regulations are 

intended to even the playing field. 

Comment 2.2: NMFS underestimated 

the economic costs of the LMA1 

seasonal restricted area because it did 

not take into account; (1) total affected 

vessels, (2) displacement of effort from 

those vessels, (3) changes in value to 

landings. 

Response: Based on the comments 

received, we identified new and 

updated data sources and have revised 

our estimation methods. In the DEIS, we 

relied on the Industrial Economics (IEc) 

model vessel data and calculated catch 

per trap using NMFS Vessel Trip Report 

data. Because only about 10 percent of 

Maine vessels provide trip reports 

annually, these data may not have 

reflected the catch rates and landings 

achieved by vessels fishing in the 

seasonal restricted areas. Due to public 

comments, we updated the analysis 

using Maine Department of Marine 

Resources (Maine DMR) harvester and 

dealer report data to re-estimate the total 

landings outside 12 nm. Please see FEIS 

Section 6.3.4.1 for details. 

Further, not all landings would be lost 

when the restricted area is in place. 

Fishermen are expected to relocate their 

gear to fishing grounds within the same 

or directly adjacent Maine lobster 

management zones. As fishermen 

commented, vessels already fishing in 

those adjacent fishing grounds would 

then be crowded, reducing their catch 

rates. We have included the crowding 

effects to other vessels in the 

surrounding areas in our economic 

calculations in the FEIS. We also 

assume a 5–10 percent reduction rate 

based on the natural lobster mortality 

rate. Nearly all the lobsters not caught 

during the restricted area closure are 

assumed to be caught at other locations 

or later in the year. Looking at the 

industry as a whole, the lost value to the 

entire fleet would be those lobsters 

dying from natural causes. 

In Table 6.12, as one commenter 

noted, we had incorrect information on 

the lobster price unit leading to an error 

in the landings values. The prices 

displayed in the table are in dollars per 

pound but should have been calculated 

as dollars per kilogram. However, the 

costs in the last two columns are still 

correct, as they were calculated 

separately using pounds. 

Comment 2.3: NMFS should include 

the potential benefit of reducing the 

need for disentanglement efforts in the 

economic effects analysis. We ask 

NMFS to evaluate the annual average 

costs of retaining each disentanglement 

team, including its equipment, 

insurance requirements, and staff. 

Response: We agree that we should 

consider this in our economic analysis, 

and have revised our analysis to include 

an estimate of disentanglement costs as 

well as the potential benefit of reducing 

the need for disentanglement efforts. 

See the qualitative and quantitative 

discussion in FEIS Section 9.6.4. 

Comment 2.4: The DEIS does not 

analyze the economic benefits of 

ropeless fishing. 

Response: This rule does not require 

fishermen to fish with ‘‘ropeless’’ 

fishing gear. However, in response to 

commenters, we added some analysis of 

the economic costs and benefits of 

ropeless fishing to FEIS Section 6.3.3, 

and some details of anticipated impacts 

can be found in response to comments 

below in response to Comment 9.4. 

Comment 2.5: The Proposed Rule fails 

to account for the full benefits of 

weakening vertical lines to reduce 

mortality and serious injury from 

entanglements. The full benefits should 

be taken into account in the 

development of a final rule. 

Response: All cases where full weak 

rope was not implemented were 

analyzed according to the proportional 

risk reduction of the number of inserts 

compared to the equivalent of full weak 

rope (an insert every 40 feet). Please see 

FEIS Section 3.3.4 and 5.3.1.3 for a 

description of how the use of weak rope 

was analyzed and the anticipated 

impacts on large whales. FEIS Sections 

5.3.2.3 and 5.3.4.3 discuss the expected 

impacts on other protected species and 

protected habitat. 

Comment 2.6: NMFS should consider 

the costs already incurred under 

previous take reduction measures, and 

the effectiveness of those measures, and 

should standardize a review of its 

economic analysis based on the actual 

impact of previous rules. 

Response: In the FEIS, we revised our 

analysis to provide as much information 

as possible about the costs already 

incurred under previous take reduction 

51978 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

measures. However, these economic 

impacts are not directly related to 

current rulemaking, so would not be 

included in the final costs. Under 

Section 610 of the Regulatory Flexibility 

Act, NMFS is required to review any 

significant rule to evaluate the 

continued need for regulation. Our 

review procedures include a summary 

of the expected economic impacts 

contained in the final rule, as well as a 

summary of any changes in technology 

or economic conditions that may have 

occurred since. To allow for sufficient 

time for economic adjustments to occur 

and for data to become available, we 

review rules every seven years. The 

most recent ALWTRP rule was 

published in 2015, and will be coming 

up for review shortly. 

Comment 2.7: Did economic analysis 

take into account fishermen from 

outside Maine, New Hampshire, 

Massachusetts, and Rhode Island, as 

there are some fishermen from New 

York and Connecticut that may be 

affected? 

Response: This rulemaking applies to 

lobster and Jonah crab fisheries in the 

Northeast Region Trap/Pot Management 

Area (Northeast Region). Please see FEIS 

Chapter 1 for the regulated waters map. 

In the DEIS, we only included 

fishermen from Maine to Rhode Island. 

In the FEIS, we identified a few New 

York fishermen that fished within the 

regulated area and we revised our 

analysis to include the economic 

impacts to those lobster and Jonah crab 

fishermen. No Connecticut fishermen 

were identified in the regulated waters. 

Due to data confidentiality 

requirements, those New York 

fishermen were combined with Rhode 

Island LMA 2 vessels and LMA 3 

vessels in the analysis. 

Comment 2.8: This rule will drive 

small fishermen out, and the fleet will 

become consolidated into larger 

corporate operations, destroying iconic 

tourist-drawing fishing communities 

and resulting in cultural loss. 

Response: A number of the measures 

including trawling up and weak 

insertion requirements were initially 

developed by Maine DMR after 

extensive outreach with Maine 

fishermen. Fishermen indicated that the 

trawling up and weak insertion 

measures could be done by 

reconfiguring existing trawls and buoy 

lines, reducing impacts of wholesale 

replacement of gear. Based on 

recommendations from the public, 

fishermen and state agencies, we have 

modified the alternatives in the FEIS to 

include conservation equivalencies in 

Southern New England, LMA 3, and 

Maine Lobster Management Zones out 

to 12 miles. As requested by Rhode 

Island fishermen and supported by the 

state, we analyzed the use of weak rope 

instead of trawling up measures for 

LMA 2. Fishermen indicated they could 

not support longer trawls unless they 

invested in a new vessel or vessel 

modifications. An analysis of risk 

reduction determined that this provided 

equal or better risk reduction. The final 

rule applies weak rope measures 

identical to the Massachusetts state 

measures for LMA 2 and does not 

require further trawling up. Similar 

concerns expressed by LMA 3 fishermen 

resulted in the implementation of 

trawling up restricted areas with varying 

trawling up requirements. Conservation 

equivalency measures provided by 

Maine fishermen and Maine DMR allow 

fishermen to choose between different 

trawl lengths with one or two buoy 

lines, or use more weak inserts instead 

of trawling up based on fishing practices 

in the Maine lobster management zones. 

Comment 2.9: Does the economic 

analysis of gear conversion take into 

account the replacement savings of 

current gear that is nearing the end of 

its lifespan? 

Response: We have revised our 

analysis to include this in the FEIS. 

Since it is difficult to estimate the life 

stages for all gears in the regulated 

areas, we applied new gear prices for 

current gear requirements in the DEIS. 

When vessels modify their gear 

configurations by trawling-up to add 

more traps between trawls, they can 

save some gear costs from the reduction 

in surface system like buoy lines, buoys 

and radar reflectors. These savings are 

calculated using new gear prices. 

For weak rope measures, in 

Alternative 2 (Preferred) and the final 

rule, weak rope can be inserted into 

current ropes, so no large-scale 

replacement of buoy lines is needed. 

Estimated costs of inserts assume the 

rope or sleeve is new. In Alternative 3, 

which requires fully engineered weak 

rope to replace the current rope, the 

compliance costs would be the 

difference between fully weak rope and 

regular rope. We also use new gear 

prices for both ropes. 

Comment 2.10: Fishermen should be 

compensated for the time it takes to 

mark all the gear. 

Response: Currently there is no 

mechanism by which NMFS is able to 

compensate fishermen for gear marking 

costs. A program of that nature would 

require Congressional appropriations. 

Similar programs have been made 

available to fishermen in the past. Note 

that effective gear marking could help 

fishermen and the government avoid 

additional regulatory burden in the 

future by better identifying areas where 

interactions are likely and unlikely to 

occur. 

Comment 2.11: The costs of lost gear 

from new weak rope requirements 

should have been considered in the 

evaluation of economic effects. 

Response: We discussed this issue 

qualitatively in FEIS Section 6.2.6.1. 

Comment 2.12: The economic impacts 

of gear marking, including the time 

already spent marking gear, should have 

been included in the economic impact 

analysis because the rules were 

implemented in direct anticipation of 

the Proposed Rule. 

Response: Other than the gear 

marking costs for fishermen fishing 

within Maine Exempt waters, who will 

be regulated by the state of Maine, we 

revised the analysis to include estimates 

of the gear marking costs (both material 

and labor costs). This revision is in 

response to public comments correctly 

noting that Maine implemented gear 

marking measures in anticipation of this 

final rule. However, improved 

information regarding the location of 

large whale entanglement related 

mortalities and serious injuries may 

allow future tailoring and reduced 

economic impacts of regulations. 

Comment 2.13: The evaluation of the 

economic effects of this rule should 

have included all parts of the supply 

chain, such as lobster processors, 

dealers, gear suppliers, trap builders, 

rope and line manufacturers, and 

restaurateurs. 

Response: We quantitatively 

evaluated the economic impact of the 

final rule as it applies to the lobster and 

Jonah crab trap/pot fisheries in the 

Northeast. We recognize that these 

changes could impact the broader 

supply chain, as well as local 

communities and economies in ways 

that are not easily quantifiable. In FEIS 

Section 6.7.2.2, we include a qualitative 

evaluation of the socioeconomic 

impacts to fishing communities. 

Comment 2.14: Fishermen should get 

economic assistance/subsidies to cover 

the costs of gear changes and lost 

revenue. 

Response: Given the vast amount of 

industry input into the development of 

weak insertions, which would not 

require fishermen to replace buoy lines, 

and trawling up measures, many gear 

modifications implemented in the final 

rule were created to control costs. 

However, the economic analysis in 

Chapter 6 indicates the first-year cost of 

this rulemaking is $9.8 to $19.2 million, 

which is 3 percent of the landings value 

of the lobster fishery in 2019. Some of 

those costs are likely to be passed on to 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51979 

the consumer but economic impacts to 

fishermen are anticipated. 

In December 2019, $1.6 million in 

Federal funds were reprogrammed to 

support recovery actions for the North 

Atlantic right whale in the lobster/Jonah 

crab trap/pot fishery. The funds were 

made available to fishermen through our 

partnership with the Commission. The 

funds were obligated to the Commission 

and have been distributed to Maine, 

New Hampshire, Massachusetts, and 

Rhode Island to assist the lobster/Jonah 

crab trap/pot fishery in adapting to and 

comply with the measures in this final 

rule and to help defray costs to support 

affected fishermen broadly. Maine and 

Massachusetts have used funds to 

improve reporting (Maine) and to 

support a gear liaison to collaborate 

with fishermen to develop and test weak 

insertions. New Hampshire and Rhode 

Island plan to use funds to purchase 

rope for fishermen once the rule 

becomes effective. At this time 

additional funds have not been 

appropriated by Congress or further 

reprogrammed to reimburse fishermen. 

Comment 2.15: NMFS should 

reevaluate the use of Automatic 

Identification Systems (AIS) to track 

vessel locations and movements, and 

not dismiss it from consideration as an 

alternative based on expense. 

Response: NMFS supports the 

collection of high-resolution spatial data 

in the lobster fishery and intends to 

continue to work with the Commission, 

through their technical working group, 

to develop data collection objectives 

and requirements, while balancing the 

financial burden to industry. Included 

in ongoing discussions are 

specifications needed to determine 

whether options less expensive than 

AIS systems can be used effectively. A 

basic vessel tracking system costs 

between $500 and $1,300, while a more 

advanced AIS system costs between 

$750 and $3,500. AIS devices also have 

ongoing operating costs. In relation to 

the overall size and value of the lobster 

fishery (approximately $600 million), 

for example, the cost of vessel tracking 

technology is small in light of the 

benefits it provides in the form of realtime fishery monitoring as well as safety 

to prevent vessel collisions. We 

anticipate continued investigation into 

the appropriate vessel tracking 

specifications to meet the needs for 

lobster and right whale management 

and, if appropriate, would pursue 

rulemaking within the next few years to 

require vessel tracking for federally 

permitted vessels fishing for lobster. 

Many lobster vessels are smaller than 

65 feet and therefore not currently 

required by law to carry AIS. While the 

individual cost of AIS systems are low 

compared to the value of the fishery, 

outfitting the entire fleet with AIS 

would not be a cost effective approach 

to monitoring, due to the trap-setting 

nature of the fishery. Other vessel 

tracking methods are being piloted by 

the Commission that are more 

responsive to tracking the movements of 

lobster boats, such as setting and 

hauling back. NMFS will work with 

them to regulate this monitoring 

approach. 

Comment 2.16: In doing its economic 

analysis, NMFS did not consider the 

ecological value of right whales, and the 

role they play in a healthy environment, 

including their role in carbon 

sequestration. 

Response: In Section 9.6.1 of the 

DEIS, we discussed the value of large 

whale protection in non-consumptive 

use benefits and non-use benefits. We 

provided the total expenditure of the 

whale watching industry as a proxy for 

non-consumption use value, and we 

provided a list of research results on the 

willingness to pay for whale protection 

programs from society as a proxy for the 

non-use value. In FEIS Section 9.6, we 

revised our analysis to include recent 

studies on the ecological and economic 

value of large whales. 

Comment 2.17: The DEIS does not 

include a reference to the Meyers and 

Moore 2020 paper that suggests a 

reduction in effort brought about by 

time/area closures and removals of traps 

and lines from the water may reduce 

costs. 

Response: When we prepared the 

DEIS in spring 2020, this Meyers and 

Moore (2020) paper had not yet been 

published. We have updated the FEIS 

and this paper has been cited. See FEIS 

Section 6.5.1. 

Comment 2.18: The economic and 

social impacts analysis fails to consider 

the impact that the ongoing COVID–19 

pandemic has had on demand for the 

fisheries. In the first six months of 2020, 

U.S. exports of lobster declined by 44.6 

percent (FAO Globefish 2021) and that 

significant uncertainty regarding the 

duration and extent of these impacts 

remains. 

Response: The full consequences of 

COVID–19 on the U.S. lobster and Jonah 

crab trap/pot fisheries cannot yet be 

determined. In the first half of 2020, the 

U.S. fishing and seafood sector 

experienced broad declines due to 

COVID–19 protective measures 

instituted in March 2020 across the 

United States. While lobster fishing 

effort and demand for lobster were low 

in the first half of 2020, landings 

increased and prices rose as the year 

went on. Maine, the state that has the 

most active and valuable lobster fishery, 

reported preliminary data that indicated 

that the value of lobster landings in 

2020 exceeded $400 million for only the 

seventh time (Maine DMR constituent 

email, March 24, 2021). The catch 

volume was reportedly 5 percent lower 

than 2019 landings but the vessel price 

was $0.44 higher per pound than the 

average price over the previous ten 

years. While the uncertainty caused by 

COVID–19 on communities that rely on 

lobster and other fisheries cannot be 

understated, in the Gulf of Maine, where 

lobster stocks are healthy, the fishery 

appears to be somewhat resilient. 

Comment 2.19: The costs of 

compliance fail to account for economic 

losses associated with shorter 

equipment durability and lifespan 

caused by the proposed weak ropes, 

insertions, and trawling up. 

Response: See the description of gear 

loss costs in Chapter 6, section 6.2.6.1. 

Gear loss is not included in the final 

costs estimation because the effect of 

trawling up on gear loss is unclear and 

not thought to be substantial. We also 

currently have no evidence that weak 

rope or weak inserts would cause 

significantly more gear loss. In a study 

of weak inserts conducted by New 

England Aquarium for the 

Massachusetts Office of Energy and 

Environmental Affairs, Knowlton et al. 

(2018) documented sleeves designed 

with reduced breaking strength breaking 

in only 11.8 percent of hauls relative to 

8.5 percent of control buoy lines, which 

they did not find statistically 

significant. Some fishermen who have 

used the South Shore Sleeves for several 

years have incurred no significant 

increase in extra gear loss. NMFS will 

continue to test and evaluate the use of 

weak inserts to ensure they are not 

likely to contribute to an increase in 

ghost gear. See Section 5.3.1.3.2 for a 

description of the anticipated indirect 

effects of trawl length and weak rope 

measures, including the likelihood of 

gear loss. Also note that lobster landings 

dropped in 2020 due to COVID–19 but 

the 2020 lobster average price was the 

second highest in the past decade, about 

$4.4/lb. 

Comment 2.20: The DEIS exclusively 

uses the Federal dealer data to analyze 

the commercial impact to the industry, 

not the full value of the supply chain, 

and so underestimates the true cost. 

Response: For our analysis of the 

impacts on commercial fisheries, the 

dealer data provides the most accurate 

information. Although we have some 

information of the total economic value 

of the supply chain in Maine, it is 

difficult to estimate the impacts of the 

proposed rule on it. The biggest impact 

51980 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

on the supply chain from the 

rulemaking would be the short-term 

landing reduction. There could be some 

negative impacts in the near term, but 

also could benefit the industry in the 

long run. We discussed this issue briefly 

in FEIS Section 6.7.2.2. 

Comment 2.20: NMFS’s economic 

analysis fails to properly consider that 

reduced effort does not equate to 

reduced catch. 

Response: For reduced effort in 

restricted areas, under the scenario 

where fishing is suspended, we 

assumed fishermen would lose all their 

revenue during the closed fishing 

period, which was the more 

conservative estimate. We recognize the 

costs could be overestimated in section 

6.3.1.2 ‘‘Caveats’’. Under the scenario 

where effort is relocated, we assumed a 

5 percent to 10 percent landing 

reduction in the first year, and we also 

applied a decreasing rate of landing 

reduction for the impacts of restricted 

areas. 

3. Enforcement 

About 14 commenters voiced 

concerns that this rule would be 

difficult to enforce, and 11 commenters 

including the United States Coast 

Guard, suggested that NMFS needs to 

develop a comprehensive enforcement 

plan for the areas affected by this rule. 

As noted in the FEIS, lobster trap/pot 

gear makes up the vast majority of buoy 

lines fished in the Northeast Region, 

making compliance with regulations 

paramount to the rule’s ultimate success 

or failure in reducing right whale 

mortalities and serious injuries. 

Comment 3.1: NMFS should develop 

a comprehensive monitoring and 

enforcement plan to ensure compliance. 

One commenter stated that there is 

currently no enforcement in 

Massachusetts, New Hampshire, and 

LMA 3, and another stressed the 

importance of including states in the 

development of any enforcement plan. 

Response: State partnerships serve a 

significant role in effective regional 

enforcement activities. The Office of 

Law Enforcement-Northeast Division 

(OLE–NED) has Joint Enforcement 

Agreements (JEA) in place with ten New 

England and Mid-Atlantic coastal states 

(Maine, New Hampshire, Massachusetts, 

Rhode Island, Connecticut, New York, 

New Jersey, Delaware, Maryland, and 

Virginia). The following states perform 

inspections of lobster gear in Lobster 

Management Areas: Maine, New 

Hampshire, Massachusetts, Rhode 

Island, Connecticut, New York, and 

New Jersey. The following states 

perform inspections of black-sea-bass 

gear in Lobster Management Areas: 

Delaware, Maryland, and Virginia. OLE– 

NED has developed and implemented a 

pilot program using remotely operated 

vehicles (ROVs) to inspect offshore 

fishing gear, including in LMA 3. The 

pilot project will inform future offshore 

enforcement activities for ALWTRP 

compliance monitoring efforts 

Additional information on this pilot 

program is provided in response to 

Comment 3.2. OLE–NED has identified 

a number of elements to review, in 

partnership with the states and the 

United States Coast Guard, to help 

develop a more comprehensive 

enforcement strategy for the ALWTRP 

regulatory requirements. Appendix 3.5 

of the FEIS provides a high-level 

overview of compliance monitoring 

plans and associated enforcement 

assets. 

Comment 3.2: Several commenters 

noted that enforcement in the offshore 

areas, particularly LMA 3, is sparse, and 

question whether Marine Patrol will be 

able to do gear inspections on longer 

trawls. 

Response: Traditional methods of 

hauling gear in offshore waters for 

compliance monitoring poses both 

safety and sustainability challenges. To 

meet these challenges, OLE–NED 

developed and implemented a pilot 

program using ROVs to inspect offshore 

fishing gear. OLE–NED has conducted 

offshore subsurface ROV surveys to 

check for sinking groundlines, gear 

markings, and weak links in previously 

uninspected areas. Gear tags were also 

inspected when possible. After initial 

trials, OLE has determined that ROVbased inspection of gear in the water is 

a safer and more efficient way to enforce 

offshore lobster gear requirements, 

rather than physically pulling the gear. 

The pilot project was carried out in 

FY2020 and FY2021, and will inform 

future offshore enforcement activities 

for ALWTRP compliance monitoring 

efforts. 

Comment 3.3: How will NMFS be able 

to enforce the different requirements in 

different areas, as fishermen move from 

area to area? 

Response: NOAA’s Office of Law 

Enforcement partners with state 

agencies and the United States Coast 

Guard to enforce all applicable lobster 

regulations nearshore and offshore. 

Fishermen are required to adhere to the 

regulations in the areas they fish. In 

Maine Lobster Management Zones, 

where conservation equivalencies 

established by zone and distance from 

shore present the greatest enforcement 

challenge, the Maine Marine Patrol 

assured us that they use outreach, 

education, and enforcement to establish 

and maximize compliance, are very 

familiar with Maine’s lobster 

management zones and boundaries, and 

that ‘‘. . . enforcement of most 

restrictive rules relative to lobster zones 

does not present any significant 

challenge . . .’’ (email from Erin 

Summers, April 20, 2021). Offshore 

enforcement poses challenges that 

enforcement partners have been 

evaluating in recent years. While OLE 

does not disclose specific law 

enforcement techniques, as discussed 

above, OLE has started deploying ROVs 

to inspect offshore gear. OLE welcomes 

and encourages the public to report 

violations to their hotline. 

4. Gear Marking 

A total of 75 commenters supported 

gear marking, indicating that gear 

marking is the best way to determine 

where and in which fisheries 

entanglements occur, and potentially 

absolving other areas and fisheries of 

blame. Gear marking was universally 

supported by conservationists and 

fishermen. Several Maine fishermen 

commented that they had already 

completed their required gear marking, 

and many are expecting the results to 

show that Maine’s lobster fishery does 

not entangle whales. 

Comment 4.1 NMFS should give 

Maine’s lobster fishery a three-year 

evaluation period to make sure that 

Maine’s rope (now with purple marks) 

is not causing entanglements before 

adding any other requirements. 

Response: The results of Pace et al. 

2021 show that in the years 1990–2009, 

roughly eight right whales per year died, 

many unseen. Since 2010, on average 21 

right whales per year have died. Recent 

observations indicate that the increase 

in mortality since 2010 is in part due to 

a significant amount of mortality in 

Canadian waters and/or from Canadian 

fishing gear. However, the sources of the 

unseen mortality (roughly eight whales 

per year) that has existed for decades 

remains uncertain and the effects of the 

Plan’s measures cannot be evaluated 

(Pace et al. 2017) and likely has not 

reduced mortality and serious injury 

below one per year as required to meet 

MMPA goals. 

If current trends continue, even 

accounting for a mean of 11 births per 

year over the last 10 years, we could 

expect to lose another 30 whales over 

the next 3 years, or 10 whales per year. 

Pace et al. (2021) estimates that 

approximately 368 right whales were 

alive at the end of 2019. At the current 

rate of decline, we would expect the 

2020 population to be 358. If we wait 3 

more years to implement risk reduction 

regulations, the population could be as 

low as 328. We are required by the 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51981 

MMPA to take action now. See FEIS 

Chapter 1 for more information on the 

need for immediate action. 

We expect gear marking and acoustic 

and aerial surveys to help us further 

identify the areas of most risk to right 

whales. Until we have additional 

information, we must regulate based on 

the best available science: Maine has the 

highest concentration of all vertical line 

gear in U.S. waters, and right whales are 

still using Maine waters. 

Comment 4.2: There should be an 

exemption for hand-hauled lobster traps 

in less than 100 feet of water, because 

when traps are pulled by hand, the 

vertical lines are not cleared of 

organisms on the rope as they would be 

when a pot hauler is used. 

Response: It is unclear what 

exemption is being requested by the 

commenter, as no exemption fitting this 

general description was included in the 

final rule. The request may be for an 

exemption from gear marking 

requirements because marks may be 

obscured by fouling. While this may 

reduce the ability to see marks from a 

vessel, gear marks would be detectable 

from line retrieved from a whale. 

Comment 4.3: We received comments 

from some who support the idea of 

individual ID tags that would allow 

NMFS to identify the fisherman whose 

gear entangles a whale, as well as from 

others who oppose individual ID tags. 

Response: Current regulations require 

buoys to be marked with information 

that can be traced back to individual 

fishermen. Buoy and individual line 

tagging technologies exist, but this 

method of marking comes at some cost 

and the benefits are unclear. Gear is not 

always recovered and often buoys or 

traps are not present on the entangled 

whale. Line marking technology, such 

as identification tape (i.e., marker tape) 

that is woven into line, is expensive and 

is difficult to enforce without severing 

the buoy rope. Radio frequency 

identification and passive integrated 

transponder tags are also expensive, 

require standardized tag readers to 

adequately enforce, and in field trials 

have not held up well in commercial 

fishing conditions. As the technology 

improves and the costs are reduced, 

NMFS will continue to monitor the 

possibility of line identification tape. 

We are not requiring individual 

markings in this rulemaking. 

Comment 4.4: One commenter 

proposed dividing Massachusetts and 

Maine into smaller subdivisions with 

distinct markers to allow NMFS to 

develop more accurate and targeted 

marine policy, and another suggested 

weak rope should be marked or colored 

to identify it as weak rope. 

Response: Current regulations include 

some small zones of multiple colored 

marks but given the rarity of gear 

retrieval, the value of small area 

marking requirements is not yet proven. 

Gear marking is one of the most 

expensive elements within the proposed 

regulations and increasing complexity 

adds expense without proven benefits or 

any risk reduction. Regarding requiring 

weak rope to be identifiable with a color 

or marking scheme, NMFS does not 

regulate rope manufacturers. However, 

we are asking them to create 

intentionally engineered weak rope with 

a tracer or a strand of a contrasting 

color. Weak insertion approval has 

included a requirement of a contrasting 

color to allow both enforcement and 

disentanglement teams to recognize the 

weak insertion. 

Comment 4.5: NMFS should not 

require any additional gear marking 

beyond what is already in place. 

Response: Currently, the majority of 

gear recovered has no identifiable marks 

and until Maine established gear 

marking requirements in Maine 

exempted waters, over half of all U.S. 

buoy lines were unmarked. In order for 

the ALWTRT to make better 

recommendations, including those that 

could allow more targeted gear 

modifications and closures, the Team 

needs a better understanding of the 

types and locations of rope that entangle 

whales. The more robust gear marking 

scheme included in the final rule, 

including some markings largely 

supported by the ALWTRT and states, 

should increase our ability to identify 

the gear, and subsequently, identify 

more targeted and more effective 

measures to reduce entanglements. 

Comment 4.6: Gear marking should be 

required for all fisheries in the right 

whale migratory path. 

Response: The ALWTRP covers 

commercial fisheries within the right 

whale migratory path from Florida to 

Maine. While, historically, the majority 

of gear recovered from right whale 

entanglements has been unknown, state 

regulations and the final rule expand 

the gear marking schemes substantially 

for the lobster/Jonah crab fishery, which 

contributes the vast majority of vertical 

lines in these waters. The new gear 

marking requirements should increase 

the frequency with which we encounter 

gear marks on recovered rope from 

entanglements and enable visual 

identification of state of origin from 

aerial and vessel-based platforms. The 

ALWTRT has begun meeting to develop 

recommendations related to reducing 

the risks posed by other U.S. fisheries in 

right whales range. In recent years, 

Canada has also implemented gear 

marking requirements for Canadian 

lobster and snow crab fisheries. 

Comment 4.7: NMFS should require 

gear markings every 17 fathoms, so that 

gear markings will be at the same 

intervals regardless of the total length of 

the rope. 

Response: The large number of 

different fisheries operating at various 

depths managed under the ALWTRP 

makes it difficult to implement a single 

gear marking structure. For those 

fisheries occurring in deep offshore 

waters, this rule more than doubles 

current gear marking requirements but 

may not result in marks as frequent as 

every 17 fathoms (31 m). However given 

the large number of buoy lines in 

shallower waters, one marking every 17 

fathoms (31 m) would be a reduction in 

gear marking compared to what we have 

in the final rule. 

Comment 4.8: Several commenters 

suggested that sinking groundlines 

should be marked to distinguish them 

from vertical lines, while others 

supported not requiring any gear 

marking on sinking groundlines. 

Response: Groundline marking has 

not been extensively discussed by the 

ALWTRT in recent years. Under current 

ALWTRP and in this final rule, no gear 

marking will be required for sinking 

ground lines. 

Comment 4.9: Why are the gear marks 

required to be 3 feet long (0.91 m), and 

would that be useful in murky water? 

Response: Gear marking and fishery 

identification relies mainly on 

recovering gear from entangled whales, 

making the water clarity a negligible 

component of gear identification. 

However, the proposed larger 3-foot 

(0.91 m) mark within 2 fathoms (3.65 m) 

of the surface system should help 

identify gear from vessel and aerial 

platforms, as the surface system will 

keep the line in relatively clear water. 

The mark could also provide useful 

information for disentanglement teams, 

and may allow gear identification in 

cases where whales are photographed, 

but not seen again. 

Comment 4.10: Any final rule should 

include requirements for all buoy lines 

to be marked the full length of the 

vertical line, or at the very least, 

markings every 40 feet, and in such a 

way that the location of where gear was 

set can be known even in cases when a 

buoy is not seen or retrieved. 

Response: The final rule increases the 

number of marks with additional 

distinction between Federal and state 

waters, offering better spatial resolution 

than those in the Proposed Rule. The 

marks will also be longer in length to 

increase the likelihood that a mark will 

be spotted without a buoy. However, it 

51982 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

was determined that marking every 40 

feet would be costly without a 

commensurate benefit given that since 

2010 gear has only been retrieved from 

about 40 percent of the observed right 

whale entanglements. 

Comment 4.11: Time consuming gear 

marking regulations should be 

implemented during the off season, as 

otherwise gear making will reduce the 

time available for fishing. 

Response: We recognize this issue, 

and this rule will include a delayed 

implementation date to allow time 

during slow seasons as practicable for 

gear configuration and gear marking 

changes. 

Comment 4.12: Can we alert whales to 

the presence of ropes with visual or 

acoustic cues? 

Response: Research conducted by 

Kraus, Fasick, Werner and McFarron 

(2014), and Kraus and Hagbloom (2016), 

suggested that red and orange lines may 

be visually detectable by North Atlantic 

right whales at greater distances than 

other colors although it is unclear to 

what depths color can be detected or 

whether detection results in avoidance. 

For more information on gear marking 

measures included in this rule, please 

see Table 3.3. Unlike toothed whales 

that use echolocation to sense their 

surroundings, baleen whales like right 

whales are not detecting fishing gear 

acoustically and acoustic cues are 

unlikely to result in gear avoidance in 

the same way that pingers have been 

successful at reducing entanglements of 

harbor porpoises, for example. 

5. Legal Issues 

Approximately 28 commenters 

believe that the Proposed Rule violated 

the requirements of the MMPA, the 

ESA, the National Environmental Policy 

Act (NEPA), and/or the Administrative 

Procedure Act (APA). Most of these 

concerns were raised by NGOs, 

including but not limited to: Whale and 

Dolphin Conservation, Oceana, Center 

for Biological Diversity, Conservation 

Law Foundation, Defenders of Wildlife, 

Humane Society of the United States, 

Natural Resources Defense Council, 

PEER, Clearwater Marine Aquarium, 

Georgia Aquarium, Southern 

Environmental Law Center, as well as 

the Maine Lobstering Union, and many 

Federal and state legislators. 

Comment 5.1: NMFS refusal to 

evaluate some strategies, including but 

not limited to certain trap reductions, 

weak line enhancements, static area 

closures, and gear marking strategies, 

was ‘‘arbitrary and capricious’’ under 

the APA. 

Response: The development of the 

Proposed Rule was the result of an 

extensive public process involving 

challenging negotiations within the 

ALWTRT and ample opportunity for 

public input as prescribed by the 

MMPA, NEPA, and the APA. 

Many options were considered, 

deliberated, and evaluated by the 

ALWTRT, the public, and NMFS, and 

some were modified or eliminated from 

further consideration as the process 

unfolded. Where the measures 

considered in the final rule would also 

affect state fisheries, the input of state 

fisheries agencies was important to 

ensure that conservation measures were 

feasible and safe in the various locations 

in which they would apply. State 

scoping and outreach helped inform the 

rulemaking efforts, and helped identify 

the measures that would be given 

extensive consideration in the NEPA 

process. 

The final rule and FEIS reflect this 

extensive involvement by the numerous 

stakeholders and considered a 

reasonable range of alternatives. 

Comment 5.2: Proposed rule and DEIS 

violated Executive Order (E.O.) 12898 

by not reviewing issues of 

environmental justice, particularly for 

Maine’s Washington County. 

Response: E.O. 12898 requires 

agencies to consider whether their 

actions result in disproportionately 

adverse human health and 

environmental impacts on minority or 

low income populations. The DEIS 

addressed E.O. 12898 by examining the 

various counties affected by the 

ALWTRP rulemaking, and concluding 

that minority and low impact 

communities will not be 

disproportionately affected. 

While Washington County has higher 

than state average low income and 

minority populations, Washington 

County is not disproportionately 

affected by adverse health and 

environmental impacts from the 

rulemaking when compared to other 

counties. Where the impacts of the 

ALWTRP rulemaking extend over a 

large area across multiple states, the 

county level is an appropriate level at 

which to assess whether the rulemaking 

would result in disproportionate 

impacts. 

The commenter’s concerns appear to 

be economic in nature, as opposed to 

adverse human health and 

environmental impacts, which are the 

focus of E.O. 12898. See FEIS Section 

10.12 for a complete analysis of this rule 

as it pertains to E.O. 12898. 

Comment 5.3: NMFS’ authorization of 

lobster and Jonah crab trap/pot fisheries 

violates the ESA by allowing 

entanglements. 

Response: NMFS has satisfied its 

obligations under the ESA by 

reinitiating consultation on the 

operation of Federal fisheries under 

eight Federal fishery management plans 

and two interstate fishery management 

plans, which was completed on May 27, 

2021, and consulting on the amendment 

of the ALWTRP itself, which was 

completed on May 25, 2021. 

The ALWTRP does not authorize 

fisheries. NMFS disagrees with the 

commenter’s claims that the ALWTRP 

‘‘allows’’ entanglements. The ALWTRP 

does not state that entanglements are 

allowed, nor does it prevent fishermen 

from taking actions to avoid or prevent 

entanglements beyond what is required 

by this rule. 

Comment 5.4: Allocating the full PBR 

to the trap/pot fishery violates the 

MMPA. 

Response: MMPA Section 118 directs 

NMFS to develop take reduction plans 

to reduce the incidental mortality and 

serious injury of marine mammals 

incidentally taken by commercial 

fishing operations to levels less than a 

stock’s PBR level. Section 118 does not 

address other sources of human-caused 

mortality (e.g., vessel strikes) and those 

other causes are not considered in the 

goals of the take reduction plan. The 

short-term goal of a take reduction plan 

is to reduce incidental mortality and 

serious injury of each marine mammal 

stock to below the stock’s PBR in the 

commercial fisheries addressed by the 

plan, with a longer term goal of 

reducing incidental mortality and 

serious injury to 10 percent of a stock’s 

PBR taking into account economics, 

available technology, and existing 

fishery management plans. NMFS has 

already reconvened the ALWTRT to 

develop recommendations for gillnet 

and other trap/pot fisheries. 

Additionally, the FEIS analyzes other 

sources of impacts on right whales. 

Although beyond the scope of this rule, 

NMFS has identified evaluation of 

current measures to protect right whales 

from vessel strikes, as well as research 

into factors affecting health and 

abundance, collaboration with Canada 

on range-wide recovery efforts, and 

consideration of emerging threats as 

2021 to 2025 priority actions in the right 

whale 5-year Species in the Spotlight 

action plan. 

Comment 5.5: The Proposed Rule 

violates the MMPA by considering 

economics as a factor when choosing 

the preferred alternative. 

Response: The commenter argues that 

NMFS is prohibited from considering 

the economic impacts of measures to be 

implemented in a Take Reduction Plan 

unless such measures are part of the 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51983 

MMPA’s long-term goal of reducing 

mortality and serious injury to 

insignificant levels approaching a zero 

mortality and injury rate (often referred 

to as ZMRG). However, the distinction 

drawn by the commenter does not 

accurately reflect the statute. Under the 

MMPA, to reach the long-term goal 

requires the TRP to take into account 

the economics of the fishery, the 

availability of existing technology, and 

existing state or regional fishery 

management plans. The portion of the 

MMPA discussing the short-term goal of 

reducing mortality and serious injury to 

below a stock’s PBR does not use this 

language. However, that does not mean 

that economics, technological 

limitations, and state or regional fishery 

management plans cannot be part of the 

consideration as to which measures 

should be chosen to achieve the shortterm goal. Here, NMFS developed a 60– 

80 percent risk reduction target based 

on the latest PBR calculations and 

estimates of mortality and serious 

injury, and the ALWTRT developed 

recommendations based on this target. 

In choosing between measures that will 

accomplish the goal of reducing 

mortality and serious injury below PBR, 

the MMPA does not prohibit the 

consideration of economics, and here 

the agency’s choice of measures to 

include in the final rule balances 

various factors, but does not do so at the 

expense of the risk reduction target to 

reach the short-term goal. 

Comment 5.6: The Proposed Rule 

violates MMPA by not meeting ZMRG 

within 5 years. 

Response: Under section 118 of the 

MMPA, NMFS is required to meet both 

the short and long-term take reduction 

plan goals of reducing mortality and 

serious injury incidental to commercial 

fishing operations. The short-term goal 

is to reduce mortality and serious injury 

to below a stock’s PBR, while the longterm goal is to reduce mortality and 

serious injury to insignificant levels 

approaching a zero mortality and 

serious injury rate (i.e., ZMRG, defined 

as 10 percent of PBR in 50 CFR 229.2), 

taking into account the economics of the 

fishery, availability of existing 

technology, and existing state or 

regional fishery management plans. 

Due to the continued entanglements 

of large whales in commercial fishing 

gear, NMFS is required to take 

additional action to further reduce 

mortality and serious injury incidental 

to commercial fisheries covered by the 

ALWTRP. NMFS will continue to 

discuss future plan modifications with 

the ALWTRT and has already 

reconvened the Team in light of these 

goals. 

Comment 5.7: The Proposed Rule 

violates MMPA by not reducing PBR in 

six months. 

Response: The MMPA created a 

framework for developing and issuing 

take reduction plans, monitoring the 

plans regularly, meeting with take 

reduction teams regularly, and 

amending plans if necessary to meet the 

goals of the MMPA. NMFS’ actions have 

been consistent with the process laid 

out by the MMPA. 

The first ALWTRP was issued in 

1997, and NMFS has modified the 

ALWTRP numerous times since, with 

input from the ALWTRT to further the 

MMPA goals of reducing mortality and 

serious injury of large whales incidental 

to commercial fisheries. 

As we state in the preamble to the 

final rule, for the purposes of creating a 

risk reduction target, NMFS assigned 

half of the right whale entanglement 

incidents of unknown origin to U.S. 

fisheries. Under this assumption, a 60 

percent reduction in mortality or serious 

injury would be needed to reduce right 

whale mortality and serious injury in 

U.S. commercial fisheries, from an 

observed annual average of 2.2 to a PBR 

of less than one whale per year. See 

Chapter 2 of the FEIS for our revised 

analysis of PBR. 

Comment 5.8: These additions to the 

ALWTRP may not prevent the 

continued decline of right whales. 

Response: NMFS tasked the ALWTRT 

with developing measures to reduce risk 

of entanglement to meet the MMPA’s 

goals that fisheries mortality and serious 

injury should be below PBR. It is not 

within the agency’s discretion to 

disregard PBR, and the current 

rulemaking is the agency’s attempt to 

reduce the risk of mortality and serious 

injury from the Northeast lobster and 

Jonah crab trap/pot fisheries to comply 

with the MMPA. That such measures in 

and of themselves may not result in 

recovery of the right whale population 

does not mean that NMFS can disregard 

the statutory direction of the MMPA. 

Comment 5.9: State measures should 

be included in the final rule. 

Response: NMFS agrees that the 

MMPA authority applies in both state 

and Federal waters. Many state 

measures are included in the final rule, 

including Massachusetts weak insertion 

requirements and extension of the MRA 

north to the New Hampshire border. 

Because dynamic management is 

difficult to accomplish under Federal 

procedural requirements and such 

measures were not part of the proposed 

rule, the Massachusetts extension of the 

state water closure into May was not 

included. Other Massachusetts 

measures, such as a maximum state 

water line diameter, were not included 

because they were not analyzed or part 

of the proposed rule. 

Comment 5.10: NMFS ‘‘Purpose and 

Need’’ statement is too narrow. 

Response: The Purpose and Need 

chapter of the FEIS states that the 

measures need to achieve a risk 

reduction of at least 60 percent, rather 

than an exact risk reduction target, and 

therefore, it was not meant to constrain 

the risk reduction to a specific number. 

Rather, this is the minimum target 

needed. Both of the action alternatives 

considered in the DEIS met the Purpose 

and Need. The Alternatives have been 

modified in the FEIS. 

The Alternatives were selected 

because, using the Decision Support 

Tool, these suites of measures, which 

include ongoing and anticipated fishery 

management measures, measures that 

will be regulated by Maine and 

Massachusetts, and the benefits of the 

MRA, are estimated to achieve or exceed 

a 60 percent risk reduction necessary to 

reduce impacts to right whales to below 

the PBR level of 0.8 mortalities or 

serious injuries per year based on 

observed incidents. Thus, mortality and 

serious injury of right whales in U.S. 

fishing gear must be reduced by 60 

percent (documented) to 80 percent 

(estimated) to achieve the MMPA goal of 

reducing fishery-related incidental 

mortality and serious injury to below 

the right whale PBR. 

For more information on the Decision 

Support Tool and the input data, 

assumptions, and uncertainty please see 

FEIS Appendix 3.1. 

In terms of the ESA, the final rule has 

been identified as a first anticipated step 

in the adaptive management approach 

within the conservation framework in 

the Section 7 Consultation on the 

authorization and permitting of a 

number of Federal fisheries, including 

lobster and Jonah crab. Additionally, a 

consultation on the ALWTRP which 

included the implementation of final 

rule determined that the gear 

regulations implemented by the Plan for 

U.S. fixed gear fisheries including those 

measures in the final rule will have 

wholly beneficial effects to ESA-listed 

species or their critical habitat and 

therefore the Plan is not likely to 

adversely affect ESA-listed species or 

designated critical habitat. 

Comment 5.11: NMFS cannot rely on 

CEQ’s recent amendments to NEPA. 

Response: Because the Notice of 

Intent to prepare an Environmental 

Impact Statement (84 FR 37822, August 

2, 2019) was published prior to 

September 14, 2020, this action was 

prepared under the NEPA regulations 

first implemented in 1978. Text has 

51984 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

been added to the Purpose and Need 

section (FEIS Section 2.2) to reflect this. 

As written, the FEIS addresses direct 

and indirect impacts in Chapter 5 

(Biological Impacts), Chapter 6 

(Economic and Social Impacts), and 

Chapter 7 (Summary of Biological, 

Economic, and Social Impacts). 

Cumulative Effects are addressed in 

Chapter 8, which also summarizes the 

direct and indirect impacts of the action 

as well. 

Comment 5.12: NMFS failure to 

consider a ‘‘no commercial fishing’’ 

alternative is in violation of NEPA. 

Response: Not allowing any 

commercial fishing is not a reasonable 

alternative under NMFS’ regulatory 

responsibilities, namely the MagnusonStevens Act, and does not meet the 

Purpose and Need of the action nor the 

goals of the Plan. Per the agency’s 

mission, NMFS is responsible for the 

stewardship of the nation’s ocean 

resources and their habitat. We provide 

vital services for the nation: Productive 

and sustainable fisheries, safe sources of 

seafood, the recovery and conservation 

of protected species, and healthy 

ecosystems—all backed by sound 

science and an ecosystem-based 

approach to management. 

Comment 5.13: NMFS did not 

evaluate a reasonable range of 

alternatives or all reasonable measures 

in violation of NEPA. 

Response: The development of the 

Proposed Rule was the result of an 

extensive public process involving the 

ALWTRT as prescribed by the MMPA, 

NEPA, and the APA. Many alternatives 

were considered, deliberated, and 

evaluated by NMFS, the ALWTRT 

stakeholders, and the public, but some 

were eliminated from further 

consideration as the process unfolded. 

For example, while the non-preferred 

alternative considered a reduction and 

cap on buoy lines, achieving that 

reduction specifically through a large 

reduction in the number of traps 

allocated to fishermen or through a 

reduction in the number of permits 

issued was not analyzed despite studies 

that suggest that trap reductions may 

not substantially or over the long term 

reduce lobster landings and would 

reduce operational costs to fishermen 

(e.g., Myers and Moore 2020; Myers et 

al., 2007). These measures were not 

included in large part due to failed 

efforts to establish effort reduction 

measures with the primary fishery 

management body responsible for 

lobster fishery management, the 

Commission, demonstrating the 

complexity of developing these 

measures in a fishery with varied state 

reporting requirements. There was also 

strong opposition from the regulated 

community, most notably when Maine 

DMR attempted to develop this option 

through Maine Zone Council meetings. 

Strong industry opposition to measures 

that would require consideration of 

fishing histories and landings data 

would further extend the rule 

development and implementation 

timeline and compromise compliance. 

Additionally, trap reduction would 

not in itself necessarily reduce buoy line 

numbers. Increasing the minimum 

number of traps per trawl would still be 

required in conjunction with trap 

reductions, otherwise fishermen could 

use trawls with fewer traps resulting in 

no decrease in vertical buoy lines. 

While some commenters raised 

concerns about additional weight 

associated with more traps per trawl 

and stronger buoy lines, weak insertions 

required in all buoy lines regulated 

under this rule would provide for 

breakable buoy lines. This example 

demonstrates the complex 

interrelationship of many of the 

measures analyzed and adopted or 

rejected, although given the large 

volume of comments not all measures 

provided in scoping and comments on 

the proposed rule were analyzed. 

Where the measures considered here 

would also affect state fisheries, the 

input of state fisheries agencies was 

important to ensure that conservation 

measures were feasible and safe in the 

various locations in which they would 

apply. As such, state scoping and 

outreach helped inform the rulemaking, 

and measures given extensive 

consideration in the NEPA process. The 

FEIS reflects this extensive involvement 

by the numerous stakeholders and 

contains a reasonable range of 

alternatives for the agency and the 

public’s consideration. The Alternatives 

were selected because, using the 

Decision Support Tool, they achieve or 

exceed a 60 percent risk reduction 

necessary to reduce impacts to right 

whales to below the PBR level of 0.8 

serious injury or mortality per year. 

Comment 5.14: NMFS rejected trap 

reductions in violation of NEPA. 

Response: While agencies shall 

include reasonable alternatives not 

within the jurisdiction of the lead 

agency, these trap reduction strategies 

were not considered reasonable under 

the Purpose and Need due to multiple 

factors. They are complex, timeintensive, and carry a large 

administrative burden. For example, 

implementing a line or trap cap would 

require pinpointing accurate data 

sources, identifying qualifying criteria, 

outlining an allocation method, and 

engaging the industry, on top of 

managing current measures. Given the 

need for rapid rulemaking and 

conservation measures, these trap 

reduction strategies are not currently 

cost effective, nor could they be 

implemented in a timely manner. For 

more information on trap reduction 

strategies undertaken by the 

Commission, see also response to 

Comment 5.14, above, and comment 6.4, 

below. 

Comment 5.15: DEIS did not analyze 

all risks in concluding the rule will 

reduce mortality and serious injury 

below PBR in violation of NEPA and 

APA. 

Response: In accordance with NEPA, 

as part of its cumulative impacts 

analysis, the DEIS described impacts to 

right whales and other large whales 

from various anthropogenic sources, 

including vessel strikes, aquaculture, 

and offshore energy development. 

However, attribution of sources of 

mortality in the PBR framework is not 

a legal requirement of NEPA, but of the 

MMPA. Section 118 of the MMPA 

directs that NMFS develop take 

reduction plans to reduce the mortality 

and serious injury of marine mammals 

incidental to commercial fishing 

operations to levels less than PBR for 

the marine mammal stock. While the 

DEIS did address other sources of 

impacts on right whales, the MMPA 

does not mandate that take reduction 

plans must reduce incidental mortality 

and serious injury from fisheries to 

levels that would accommodate 

mortality and serious injury from other 

anthropogenic sources within PBR. In 

other words, NMFS does not apportion 

PBR; PBR is a reference point that serves 

as the short-term goal for a take 

reduction plans and also alerts NMFS to 

take management actions needed to 

reduce all sources of human-caused 

mortality so that we can meet the 

overarching MMPA goal of recovering 

marine mammals to their optimum 

sustainable populations. 

Comment 5.16: NMFS did not 

consider dynamic area management as 

required under NEPA and APA. 

Response: The commenter is correct 

that in the past the take reduction plan 

included dynamic closure measures. 

Such measures were found to be 

problematic with the fixed gear lobster 

fishery, and so were not considered in 

this final rule. When a closure is made 

gear cannot be removed 

instantaneously, and factors such as 

weather and sea conditions affect the 

timing of gear removal. Dynamic 

closures must allow for safety concerns, 

which make them less effective from a 

conservation perspective, as such delays 

can result in gear remaining after whales 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51985 

are sighted, and may also result in a 

situation where, by the time fishermen 

are able to remove their gear, the whales 

may have already left the area subject to 

the closure. Further, while Canada 

began using dynamic closures in 2018 

as part of its right whale conservation 

effort, in 2019 there were twelve 

Canadian right whale mortalities despite 

these measures. See Comment 9.2 under 

Restricted Areas and Borggaard et al. 

(2017) for further discussion of dynamic 

management. 

Comment 5.17: Proposed rule violates 

MMPA and ESA because regulations are 

not effective and immediate. 

Response: The MMPA take reduction 

rulemaking process is subject to 

procedural requirements arising from 

the APA, MMPA, NEPA, and ESA that 

make ‘‘immediate’’ protections in the 

form of a Take Reduction Plan 

amendment a legally difficult 

proposition. While there are 

circumstances in which MMPA 

emergency rulemaking authority may be 

exercised, as described in more detail in 

response to comment 7.5, NMFS has not 

concluded that this would be 

appropriate here, and even if this 

authority were used it would not allow 

for ‘‘immediate’’ protections, as there 

are other non-MMPA procedural steps 

that must occur. NMFS has undertaken 

the current rulemaking process using 

the best available scientific information 

while engaging with various 

stakeholders in the take reduction team 

process to develop effective 

conservation measures to reduce 

entanglements of right whales in 

Northeast lobster and Jonah crab trap/ 

pot fisheries. 

Comment 5.18: NMFS did not use the 

best scientific information available in 

violation of NEPA, MMPA, and ESA. 

Response: The rulemaking process 

unfortunately cannot react 

instantaneously as new information 

comes to light. The MMPA take 

reduction planning process requires the 

involvement of numerous stakeholders 

in the TRT in the development of 

conservation measures, followed by the 

required NEPA and APA processes. At 

all points, however, NMFS uses the best 

available scientific information to 

inform its decisions, and when the TRT 

was reconvened, NMFS developed a 60– 

80 percent risk reduction target based 

on the latest PBR calculations and 

estimates of mortality and serious 

injury. 

As NMFS prepared to publish the 

DEIS and Proposed Rule, new 

information regarding North Atlantic 

right whale population came in the form 

of preliminary estimates from the NMFS 

Northeast Fisheries Science Center in 

the fall of 2020. These estimates have 

since undergone additional review, and 

are being incorporated into the North 

Atlantic right whale stock assessment 

that includes a new PBR calculation, a 

process that includes public notice and 

comment. This new information is 

included in the FEIS. 

Comment 5.19: The proposed 

regulation is not only unconstitutional, 

but a direct attack on the citizens and 

sovereignty of the state of Maine. You 

should refrain from implementing this 

regulation. 

Response: NMFS is acting in 

accordance with direction from 

Congress under the MMPA and other 

applicable laws. See FEIS Chapter 10. 

6. Line/Effort Reduction 

At least 34 commenters were in favor 

of effort reduction through trap limits, 

line caps, and buybacks, as a way to 

reduce the number of vertical lines in 

the water, thus reducing risk to right 

whales, while a few were against any 

effort reduction measures. Maine DMR 

noted that the administrative burden of 

a line cap system is also something that 

has deterred them from pursuing this 

management measure. Several 

commenters pointed out that, due to 

latent effort, NMFS’ assumptions on 

effort may be artificially high, though 

Maine’s DMR stated that the latent effort 

calculations were consistent with their 

view. Some commenters suggested that 

fewer fishermen are entering the fishery, 

leading to a natural reduction in effort, 

and therefore line reduction was already 

taking place, which would contribute to 

the risk reduction goals of the final rule. 

Comment 6.1: NMFS should review 

the amount of latent effort in the fishery, 

and ensure that latent effort is properly 

accounted for in determining the risk 

reduction value of any measures. 

Response: Since the collapse of the 

Southern New England (SNE) lobster 

stock, the Commission has taken action 

to attempt to address latency in LMA 2 

and 3. The Commission’s Lobster 

Management Board initiated Addendum 

XVIII to scale the SNE fishery to the 

diminished size of the SNE lobster 

resource with a consolidation program 

aimed at addressing latent effort 

(unfished allocation) and reductions in 

traps fished. Addendum XVIII included 

an approximate 50 percent trap 

reduction in LMA 2 implemented over 

6 years and an approximate 25 percent 

trap reduction in LMA 3 implemented 

over 5 years. These trap reductions 

concluded in fishing years 2020 and 

2021. 

Given that the Gulf of Maine/Georges 

Bank (GOM/GB) lobster stock 

(overlapping with LMA 1, 3, and the 

Outer Cape) is at a near time series high 

for abundance, we can assume that the 

amount of latency is comparatively 

lower than that found in SNE. As 

discussed in Chapter 5 of the FEIS, 

positive market and lobster stock 

conditions for the GOM/GB stock 

incentivize fishermen to increase fishing 

effort and may encourage inactive 

fishermen to reenter the fishery. For that 

reason, it is likely that fishermen in the 

Gulf of Maine have been fishing at a 

high capacity in recent years. Maine, 

which accounts for the majority of 

permits issued in the Gulf of Maine, 

submitted data on latency rates of state 

permits (Appendix 3.2 of the DEIS), 

indicating a stable number of latent 

permits over the last 10 years (2008– 

2018). Of its approximately 6,000 

permits issued, approximately 1,500 

permits have no reported purchased 

landings and are considered latent. 

While other jurisdictions have not 

completed similar analyses, latency 

rates are likely similar. 

Given the actions to reduce latency in 

LMA 2 and 3, the relatively low but 

stable amount of latency in LMA 1, and 

the current fishery incentives given high 

abundance in the Gulf of Maine, fishery 

data included in the Decision Support 

Tool are considered accurate and 

representative of existing fishery 

conditions, including existing rates of 

latency. See FEIS Chapter 5 for more 

details. 

Comment 6.2: A range of views were 

expressed on the Non-preferred 

Alternative of capping buoy lines. One 

comment stated that NMFS should 

choose its Non-preferred Alternative of 

capping buoy lines at 50 percent of the 

average monthly lines fished in Federal 

waters in 2017. Another expressed 

opposition to it, citing that 

Massachusetts is the only state where 

end lines are accurately counted or 

regulated, and it would be time and 

labor-intensive to develop such a system 

across the other states without funding 

or capacity to do so. 

Response: Regulating buoy lines was 

analyzed in the DEIS and the FEIS as an 

element within the Non-preferred 

Alternative 3, taking an alternate 

approach to achieving risk reduction 

across the proposed areas that would 

reduce line numbers while allowing 

fishermen to respond to the reduction 

according to their preferences and 

individual operational capacity. 

Alternative 3 would cap the total 

number of lines available for trap/pot 

fishing in Federal waters to 50 percent 

of the average baseline number of lines 

(2017) outside of state waters. Because 

this was not a Preferred Alternative, the 

exact regulatory mechanism for 

51986 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

2All Addenda can be found at www.asmfc.org, 

under Interstate Fisheries Management, American 

Lobster. 

3New England Fishery Management Council 

document. This action occurred prior to the 1999 

transfer of Federal lobster management to the 

Commission under the Atlantic Coastal Act. 

4Addendum IV was rescinded in Addendum VI 

and then revised and approved in Addenda VII and 

XII. 

5Through various addenda to the ISFMP for 

American lobster, history-based effort control plans 

based on fishery performance have been enacted by 

NMFS (LCMAs 1, 3, 4, and 5) and states (MA in 

Outer Cape Cod; NY and CT for LCMA 6; and MA, 

RI, CT, & NY for LCMA 2). 

implementing a line cap was not 

identified. It was assumed, however, 

that NMFS would work with the 

Commission and New England states to 

qualify the number of buoy lines based 

on an April 29, 2019, control date (84 

FR 43785, August 22, 2019) using vessel 

trip reports or, for Maine, other data 

sources to distribute allocations of line 

tags to fishermen. 

NMFS did not select this Nonpreferred Alternative because 

development of a buoy line control 

program would be time- and laborintensive and come at a substantial cost 

to the industry. The Commission 

process, including soliciting public 

feedback, requires, at a minimum, 

approximately six months to develop an 

adaptive management action. Larger, 

more controversial actions can take 8 to 

18 months. One commenter is likely 

correct that, given the lack of mandatory 

vessel trip reports in the Federal lobster 

fishery in the baseline year of 2017, the 

Commission would have had to rely on 

state data as the best scientific 

information available to develop a 

qualification program through an 

addendum. 

Given the variable data regarding 

individual fishermen’s lobster fishing 

histories due to inconsistent state and 

Federal reporting requirements, this 

would be a large and controversial 

action. Even once approved by the 

Commission, additional time would be 

required for NMFS to undertake a 

Federal rulemaking and associated 

analysis. The FEIS estimates that a 50 

percent reduction of buoy lines in 

Federal waters would alone achieve an 

average 45 percent risk reduction in 

Federal waters with economic impacts 

ranging from $3.9 to 13.4 million. The 

combined set of measures included in 

the preferred alternative was projected 

to achieve a 69 percent risk reduction at 

a cost of $9.8 to $19.2 million in the first 

year of implementation. Given 

implementation challenges, the 

economic impacts of this preferred 

alternative and the fact that the 

preferred alternative achieves the stated 

risk reduction target, buoy line 

reductions will not be implemented in 

the final rule. 

Comment 6.3: States should cap and 

reduce the number of licenses, and 

reduce risk to right whales. 

Response: Through the Commission’s 

Interstate Fishery Management Plan for 

American Lobster, states and NMFS 

have made substantial efforts at capping 

the number of permits and traps 

authorized in the lobster fishery, which 

serves as a primary effort control. The 

concept of controlling lobster fishing 

effort by limiting access to historical 

participants began in 1994 when NMFS 

generally limited access into the Federal 

lobster fishery to those who could 

document participation in the fishery 

before 1991 (59 FR 31938, June 21, 

1994). Years later, in August 1999, the 

Commission passed Addendum 1 to 

Amendment 3 to the Interstate Plan, 

which limited access to Lobster 

Conservation Management Areas 3, 4, 

and 5 to only those who could 

document fishing history in those areas. 

Subsequent Commission addenda 

similarly attempt to control effort by 

limiting access to other Areas: 

TABLE 4—ACTIONS UNDER INTERSTATE FISHERY MANAGEMENT PLAN FOR AMERICAN LOBSTER

Lobster conservation management 

area Commission action 2 Corresponding Federal action 

EEZ ................................................. March 1994—Amendment 5 3 ................................... June 21, 1994 (59 FR 31938) 

LMA 1 .............................................. November 2009—Addendum XV .............................. June 12, 2012 (77 FR 32420) 

LMA 2 .............................................. December 2003—Addendum IV4 .............................

February 2005—Addendum VI ..................................

November 2005—Addendum VII ..............................

April 7, 2014 (79 FR 19015) 

May 10, 2005 (70 FR 24495) 

LMA 3 .............................................. August 1999—Addendum 1 ...................................... March 2003 (68 FR 14902) 

LMA 4 .............................................. August 1999—Addendum 1 ...................................... March 2003 (68 FR 14902) 

LMA 5 .............................................. August 1999—Addendum 1 ...................................... March 2003 (68 FR 14902) 

LMA 6 .............................................. 1995—by State action ............................................... Not Applicable in Federal Waters 

Outer Cape Cod .............................. February 2002—Addendum III ..................................

May 2008—Addendum XIII .......................................

April 7, 2014 (79 FR 19015) 

All Areas .......................................... February 2009—Addendum XII ................................. April 7, 2014 (79 FR 19015) 

The Commission has used a similar 

step-by-step approach in all of the areas. 

First, participants are qualified based 

upon their ability to document a history 

of fishing within the area. Second, those 

who qualify are allocated some number 

of traps within a given management 

area, based upon their ability to 

document the level of past fishing effort 

in the area.5 These addenda have largely 

required that states implement similar 

limited access programs (with the 

exception of LMA 1, where 

recommendations were for the Federal 

fishery only). 

The Commission Interstate Plan has 

not included reductions to the number 

of permits issued in the lobster fishery. 

However, since area qualifications were 

implemented, the number of Federal 

permits issued in each area has either 

held steady or declined. The 2020 

American Lobster Benchmark Stock 

Assessment summarized state and 

Federal permits issued in the lobster 

fishery, with approximately 1,400 fewer 

permits being issued in 2018 than in 

2010. Further, the Commission has 

approved numerous actions that reduce 

area-specific maximum trap caps or 

reduce the number of traps allocated to 

each permit. Most recently, Addendum 

XVIII required an approximate 50 

percent trap reduction in LMA 2 

implemented over six years and an 

approximate 25 percent trap reduction 

in LMA 3 implemented over 5 years. 

These trap reductions concluded in 

fishing years 2020 and 2021. 

The Commission recommended a 

reduction in the LMA 3 maximum trap 

cap as well as ownership caps in LMA 

2 and 3 that are expected to further 

reduce the number of traps authorized 

in the areas, as part of Addenda XXI and 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51987 

XXII. NMFS is in rulemaking to 

consider the implementation of these 

measures. This FEIS anticipates this 

future rulemaking and has given credit 

to the risk reductions associated with 

Addenda XVIII, XXI, and XXII. 

Comment 6.4: NMFS should remove 

half the traps from the water, which 

would reduce the risk to right whales 

while still allowing fishermen to make 

a living. 

Response: Since 1994 under the 

Commission’s Interstate Fishery 

Management Plan for American Lobster, 

states and NMFS have made substantial 

efforts at capping the number of permits 

and traps authorized in the lobster 

fishery. Participation caps serve as a 

primary effort control. Reducing trap 

caps by half could result in less effort 

and, when paired with traps/trawl 

requirements, could reduce the number 

of lines being fished, with an associated 

reduction in risk to large whales. A 

number of fisheries and managers that 

have participated in the public meetings 

of the Commission and the Take 

Reduction Team have expressed 

confidence that, on productive fishing 

grounds, lobster trap reductions could 

occur without negative economic 

consequences. A number of studies have 

demonstrated this, see for examples 

Myers and Moore (2020), Myers et al. 

(2007), and Acheson (2013). 

However, for a reduction in the 

number of actively fished buoy lines to 

be fairly distributed based on vessel 

fishing histories or other commonly 

used metrics, detailed knowledge of the 

amount of fishing effort by sector or 

individual vessel is required. Allocation 

decisions in effort control management 

of a capped resource (lines or traps) are 

also usually informed by iterative public 

fishery management processes and 

include appeal options that are 

administratively burdensome. Because 

the lobster fishery has variable reporting 

requirements across states, and because 

only about 10 percent of Maine 

fishermen have been required to report 

in any year and Federal reporting has 

been variable, data to easily determine 

effective trap and line cap measures is 

not available. This was demonstrated by 

the failed attempt of the Commission to 

identify an effort limit addendum, as 

described in FEIS Section 3.1.1.2. 

7. Management 

We received thousands of comments 

on management issues, ranging from the 

use of adaptive management strategies 

to including southeastern states in 

future rulemaking to evaluating the 

effectiveness of the final rule. 

Thousands of commenters, primarily 

through campaigns organized by NGOs, 

but also at least 149 unique 

commenters, advocated NMFS taking 

emergency action to institute immediate 

vertical line reductions or closed areas, 

and of them, many suggested shutting 

down all fishing activities that involve 

vertical lines. Several also 

recommended shutting down all 

commercial fishing. We also received 

thousands of comments, again primarily 

through campaigns organized by NGOs, 

but also from 83 unique commenters, 

about our risk reduction calculations 

being based on outdated population 

estimates. 

Comment 7.1: NMFS should use 

adaptive management to assess and 

recalibrate the measures every few years 

to reach goals of reduced entanglements 

in fishing gear. 

Response: During the ESA Section 7 

consultation on the operation of eight 

fisheries managed under Federal fishery 

management plans and two fisheries 

managed under interstate fisheries 

management plans, NMFS identified the 

need for additional measures to meet 

the mandates of the ESA, and developed 

a Conservation Framework to outline 

the agency’s commitment to implement 

measures necessary for the recovery of 

right whales. In addition to the current 

rulemaking that seeks to reduce risk of 

mortality and serious injury by 60 

percent, the Conservation Framework 

provides for additional rulemakings to 

further reduce risk over the next decade 

at levels expected to lead to survival 

and recovery of the species. Central to 

the Conservation Framework is an 

adaptive management approach by 

which new information relating to the 

status of right whales and the impacts 

of fisheries and non-fisheries activities 

will be used to determine the extent of 

additional management measures 

needed. 

Comment 7.2: NMFS should establish 

another process through which 

stakeholders can propose measures that 

could achieve equal or greater 

protections for right whales. The 

ALWTRP process is time-consuming, 

and does not allow for flexibility and 

adaptability. 

Response: The MMPA requires NMFS 

to convene Take Reduction Teams and 

develop Take Reduction Plans. While 

this process can be time consuming, it 

provides a framework for developing 

mitigation measures and clear goals for 

the ALWTRP. The ALWTRT has the 

discretion to recommend mitigation 

measures that are flexible and adaptable 

in meeting the MMPA goals. 

Comment 7.3: NMFS should include 

southeastern states in any future 

rulemakings, since right whales spend 

time in the southeast. 

Response: To simplify and expedite 

rulemaking, NMFS chose to direct the 

ALWTRT efforts initially on the 

Northeast Region lobster and Jonah crab 

trap/pot fisheries because these fisheries 

constitute 93 percent of the U.S. buoy 

lines in areas where right whales occur. 

The Team includes southeastern state 

fishery managers as well as members 

that represent the South Atlantic 

Fishery Management Council and 

Southeast U.S. fishermen. NMFS has 

begun working with the ALWTRT to get 

their recommendations on further 

rulemaking that may include 

modifications to the southeastern 

fisheries that are subject to the 

ALWTRP. We will include outreach to 

stakeholders in these states in our future 

rulemaking efforts. 

Comment 7.4: NMFS should enlist 

fishermen in disentanglement efforts, 

rather than relying on college students 

and other groups. 

Response: Disentanglement efforts on 

large whales are conducted under a 

NMFS permit by highly skilled and 

trained responders throughout the 

United States. These responders come 

from a variety of backgrounds, including 

fishermen, and NMFS regularly 

conducts training that specifically 

targets fishermen and other members of 

the on-water community. 

Disentanglement techniques, tools, and 

protocols have been developed over 

decades and have been used as a model 

for successful rescues and international 

disentanglement efforts. National and 

international trainees come from all 

over the world to learn from and train 

with our teams in the United States. We 

do ask for assistance from untrained 

fishermen from time to time on specific 

cases, and will continue to do so to 

provide an effective disentanglement 

effort that is safe for both the 

disentanglement team and the whales. 

Comment 7.5: NMFS should take 

emergency action to close all fisheries 

that use vertical lines or other gear that 

may entangle right whales, or to close 

all areas where whales may co-occur 

with fishing. 

Response: There are several statutes 

that lay out the situations in which 

NMFS can take emergency action. In 

Section 118(g) of the MMPA, which 

many commenters mentioned, the 

Secretary of Commerce may implement 

emergency rules when incidental take 

from commercial fisheries are having 

‘‘an immediate and significant adverse 

impact on a stock or species.’’ Where 

there is already a take reduction plan in 

place, the Secretary should develop 

such emergency rules that are consistent 

with the plan to the maximum extent 

practicable, and follow ‘‘on an 

51988 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

expedited basis’’ with amendments to 

the plan as recommended by the TRT to 

address the situation. In developing 

emergency rules, the Secretary must 

consult with the Marine Mammal 

Commission, TRT, fishery management 

councils, and state fishery managers. 

Emergency rules can only stay in place 

for 180 days, but can be extended for 

additional 90 days if an emergency 

situation persists. 

Section 4(b)(7) of the ESA also 

includes emergency rulemaking 

authority provisions. NMFS has used 

this authority in the past to implement 

emergency rules for right whale 

protections (e.g., SERO 2006 gillnet 

closure, 71 FR 66469, Nov. 15, 2006). 

This authority is available when there is 

an ‘‘emergency posing a significant risk 

to the well-being of any species of fish 

or wildlife or plants.’’ In an ESA 

emergency rulemaking, the Secretary 

must provide detailed reasons why the 

regulation is necessary, and must 

provide actual notice to state agencies in 

states where species occur. An ESA 

emergency rule can only last 240 days. 

While ESA emergency rulemaking 

provisions explicitly waive the 

procedural rulemaking requirements of 

the APA and the ESA, likewise, the 

MMPA’s emergency rulemaking 

authority provides an alternative to the 

normal rulemaking process of the 

MMPA, which would ordinarily include 

the APA’s notice and comment 

requirements. These MMPA emergency 

provisions do not, however, waive other 

procedural requirements that agencies 

are subject to when undertaking a 

rulemaking, including NEPA, the 

Paperwork Reduction Act (PRA), or E.O. 

12866. The NEPA regulations at 40 CFR 

1506.12, for example, allow agencies to 

consult with the Council on 

Environmental Quality to develop 

‘‘alternative provisions’’ in addressing 

an emergency situation, but agencies are 

expected to ‘‘limit such arrangements to 

actions necessary to control the 

immediate impacts of the emergency.’’ 

E.O. 12866 provides that in an 

emergency situation, ‘‘the agency shall 

notify the Office of Information and 

Regulatory Affairs (OIRA) as soon as 

possible and, to the extent practicable, 

comply with subsections (a)(3)(B) and 

(C) of this section.’’ The PRA includes 

emergency review provisions, subject to 

approval by the Office of Management 

and Budget (OMB) with a finding that 

the normal process will result in public 

harm or is not possible because of an 

unanticipated event, and even then the 

agency must take all practicable steps to 

consult with members of the public. To 

the extent that an emergency action 

would impact a wide range of the 

fishing community, the need to satisfy 

these procedural requirements would 

limit the speed of such actions. 

Due to the above-referenced 

requirements for emergency action 

under the MMPA and ESA, including 

public notice and comment 

requirements NEPA, PRA, or E.O. 

12866, and the limitations on how long 

an emergency rule can stay in effect 

(270 for MMPA, 240 days for ESA), 

NMFS believes that proceeding with the 

current action will provide the fastest 

relief and longest-lasting protections for 

right whales. NMFS generally views 

emergency actions to be appropriate 

where a clearly identifiable problem can 

be addressed with directed, focused 

measures, and such measures will 

effectively address the emergency in the 

timeframes to which such authorities 

are limited. Because it is difficult to 

predict where entanglements will occur 

given the relative scarcity of identified 

locations of entanglement, an 

emergency action to completely close all 

fisheries using vertical lines at this time 

would appear to be an overbroad use of 

its emergency authority. NMFS has not 

identified a geographic location or 

discrete temporal period within which 

emergency action would address a 

specific entanglement concern, and 

therefore NMFS believes that the 

complex issues associated with right 

whale fishery interactions are better 

addressed through the comprehensive 

approach in the final rule. 

Comment 7.6: NMFS should take 

emergency action to immediately 

implement a year-round closure south 

of Martha’s Vineyard and Nantucket. 

Response: As noted in the response to 

Comment 7.5, we believe that the final 

rule will provide the fastest relief and 

longest-lasting protections for right 

whales, so we are not planning to take 

emergency action at this time. The final 

rule does include a seasonal closure 

south of Martha’s Vineyard and 

Nantucket that will be in effect from 

February to April, when right whales 

have been sighted most frequently in 

high numbers in this area. 

We have selected the larger of the 

closed areas analyzed as a restricted 

area in Alternative 3 (Non-preferred) in 

the DEIS, but is in the Preferred 

Alternative in the FEIS and is being 

implemented in the final rule. This 

larger restricted area was best supported 

by the most recent sightings data. Since 

2018, right whales have been 

documented to the west of the originally 

proposed closure, such that the closure 

could relocate lines into areas of equally 

high whale density during the restricted 

season. The Preferred Alternative in the 

FEIS and final rule area encompasses 

the majority of the area where the 

highest density of right whales have 

been sighted, and the most recent 

sightings in years not yet within the 

Decision Support Tool demonstrate 

these aggregations have persisted. 

Restricting buoy lines within this area 

between February and April provides an 

estimated 4.6 percent risk reduction for 

the entire Northeast and captures much 

of the risk within that area. See FEIS 

Section 3.1.2.5 for our revised analysis. 

Comment 7.7: NMFS should take 

emergency action to immediately 

implement seasonal closures in the 

three areas in the Gulf of Maine: 

Downeast summer closure from August 

1–October 31, a western Gulf of Maine 

spring closure from May 1 to July 31, 

and an offshore migration closure from 

October 1 to April 30. 

Response: As noted above, we believe 

that the final rule will provide the 

fastest relief and longest-lasting 

protections for right whales, so we are 

not planning to take emergency action at 

this time. NMFS analyzed the closure 

areas in the three Gulf of Maine areas 

proposed in an emergency rulemaking 

petition submitted by The Pew 

Charitable Trusts. Along with the yearround closure proposed in Southern 

New England, these four areas would 

achieve an estimated 12.6 percent risk 

reduction according to Decision Support 

Tool Version 3, using the updated right 

whale habitat density model (2010– 

2018). However, the team working on 

the current rule would have to divert to 

preparing a new emergency rule and the 

required NEPA analyses. As noted 

above, emergency measures may only be 

implemented within the limited 

timeframe provided by the statutory 

authority, and the approximate 67 

percent risk reduction from the current 

rule far exceeds the estimated risk 

reduction suggested by the commenters. 

The final rule is a priority in order to 

implement broad risk reduction in a 

timely manner. See FEIS Section 3.4 for 

a further discussion of this and other 

alternatives that were considered but 

rejected. 

Comment 7.8: NMFS should issue 

emergency regulations that remove 

vertical buoy lines from the water in 

areas of high entanglement risk to North 

Atlantic right whales. 

Response: As noted above, NMFS 

would typically use its emergency 

authority in situations where a clearly 

defined problem can be addressed using 

discrete measures in a defined 

geographical area to effectively provide 

conservation protections within the 

limited timeframe provided by the 

statutory authority. Because the location 

of entanglements are so rarely observed, 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51989 

it is difficult to pinpoint times and 

places where emergency measures 

might provide effective protections from 

entanglements. NMFS has not currently 

identified new areas where emergency 

regulations would be appropriate, but 

the final rule includes comprehensive 

measures that address entanglements on 

a broad scale, including measures that 

will reduce vertical buoy lines through 

trawling up and seasonal area closures. 

See FEIS Chapter 3. 

Comment 7.9: How will the 

regulations in this final rule be 

evaluated? 

Response: NMFS anticipates annual 

meetings of the Team to review the 

North Atlantic right whale and other 

large whale distribution and abundance 

data, mortality and serious injury data, 

retrieved entanglement gear analyses, 

fishing effort data, and other relevant 

research results. As they become 

available, these new data will also 

inform the evolving Decision Support 

Tool. Modifications to seasonal 

restricted areas will be considered 

annually by the Team, and they may 

make recommendations to amend the 

Plan, as needed. Following the 

recommendations of the NMFS Expert 

Working Group asked to review right 

whale surveillance and monitoring 

programs (Oleson et al. 2020), we 

anticipate a three-year surveillance and 

review cycle, providing additional 

opportunities to evaluate right whale 

distribution data to gauge seasonal 

restricted areas and other conservation 

measures contained in the ALWTRP. 

Comment 7.10: NMFS should 

evaluate the success of past regulations, 

like sinking groundlines and 

breakaways, before adding more 

regulations. 

Response: Under Section 610 of the 

Regulatory Flexibility Act, NMFS is 

required to review any significant rule 

to evaluate the continued need for 

regulation. To allow for sufficient time 

for economic adjustments to occur and 

for data to become available, we review 

rules every 7 years. The most recent 

ALWTRP rule was published in 2015, 

and will be coming up for review 

shortly. 

Comment 7.11: Several commenters 

suggested that NMFS ban commercial 

fishing, ban certain commercial fishing 

gears, or focus on reducing the demand 

for seafood. 

Response: MSA is the primary law 

that governs marine fisheries 

management in U.S. Federal waters. 

First passed in 1976, the MSA fosters 

the long-term biological and economic 

sustainability of marine fisheries. Its 

objectives include preventing 

overfishing, rebuilding overfished 

stocks, increasing long-term economic 

and social benefits and ensuring a safe 

and sustainable supply of seafood. The 

Atlantic Coastal Fisheries Cooperative 

Management Act, governing the U.S. 

lobster and Jonah crab trap/pot fisheries, 

directs the Federal government to 

support the management efforts of the 

Commission and, to the extent the 

Federal government seeks to regulate a 

Commission species, develop 

regulations that are compatible with the 

Commission’s Interstate Fishery 

Management Plan and consistent with 

the MSA’s National Standards. 

Regulations to seasonally close areas to 

fishing or to fishing with certain gear 

types have been implemented to comply 

with the MMPA, the ESA, and even the 

Magnuson-Stevens Act. However, a 

complete ban on commercial fishing or 

closure of an entire fishing sector when 

other options exist that allow fishing to 

occur while complying with the Acts 

would be inconsistent with our 

mandates under these laws. 

Comment 7.12: NMFS should require 

all vessels in fixed-gear fisheries to use 

Vessel Monitoring Systems and/or AIS, 

submit Vessel Trip Reports, and have 

observer coverage in order to get better 

information on distribution and density 

of vertical lines. 

Response: NMFS supports the 

collection of high resolution spatial data 

in the lobster fishery. The Commission 

recommended the collection of 

mandatory harvester reports in the 

Federal fishery, as part of Addendum 

XXVI to Amendment 3 to the Interstate 

Fishery Management Plan for American 

Lobster. NMFS is in rulemaking to 

develop harvester reporting 

requirements that complement the 

Commission’s Interstate Plan for lobster. 

NMFS intends to work with the 

Commission, through a technical 

working group, to develop additional 

high resolution spatial data collection 

objectives and requirements, while 

balancing the financial burden to 

industry. 

Comment 7.13: If the lobster/Jonah 

crab trap/pot fishery had been managed 

like the Northeast Multispecies fishery, 

there would be fewer offshore fishing 

permits, and we wouldn’t be having this 

problem. 

Response: The interaction risk of a 

protected species is largely associated 

with the gear type, but also the quantity 

of gear in the water, gear soak/tow 

duration, and the temporal and spatial 

overlap of the gear and a given protected 

species. For the critically endangered 

North Atlantic right whale, fixed gear 

fisheries with lines linking gear on the 

ocean floor to surface marking systems 

(buoys, etc.) pose the greatest risk as 

they have accounted for the majority of 

identifiable past fishery interactions. 

The DEIS indicated that the 2017 IEC 

model estimated that over 93 percent of 

fixed gear buoy lines within right whale 

habitats along the Northeast U.S. 

Atlantic coast are fished by the lobster 

and Jonah crab fishery. Thus, the lobster 

and Jonah crab fishery poses the greatest 

risk to right whales and has been the 

focus of this action. For comparison, the 

Northeast multispecies fishery 

authorizes the use of fixed gear (e.g., 

gillnets), however, it is a relatively small 

component of the fishery and one of 

several fisheries comprising the other 7 

percent of fixed gear fisheries with buoy 

lines. 

The MSA, governing the Northeast 

Multispecies Fishery Management Plan, 

and the Atlantic Coastal Act (ACA), 

governing the Interstate Fishery 

Management Plan for American Lobster, 

are the primary laws governing marine 

fisheries management in U.S. Federal 

waters. First passed in 1976, the MSA 

fosters the long-term biological and 

economic sustainability of marine 

fisheries. Its objectives include 

preventing overfishing, rebuilding 

overfished stocks, increasing long-term 

economic and social benefits, and 

ensuring a safe and sustainable supply 

of seafood. The ACA directs the Federal 

government to support the management 

efforts of the Commission and, to the 

extent the Federal government seeks to 

regulate a Commission species, develop 

regulations that are compatible with the 

Commission’s Interstate Fishery 

Management Plan and consistent with 

the MSA. These laws allow for the 

updating of management measures to 

meet legislative and management 

objectives. While adjustments to 

management measures may affect the 

quantity of gear fished, soak time or tow 

duration, or the spatial or temporal 

usage of gear, and, thus, may alter the 

interaction risk associated with any 

fishery to protected species, they are 

unlikely to dramatically alter the gear 

usage in these fisheries. 

Comment 7.14: These rules will create 

safety hazards for fishermen, and will 

not reduce right whale entanglements or 

mortalities. 

Response: We acknowledge that open 

ocean fishing is inherently dangerous, 

and that fishing is one of the most 

dangerous occupations. Fishermen 

configure their operations in the ways 

that work best for them, and any 

regulatory changes that require them to 

modify their practices can increase risk 

until adaptations to the new practices 

are made. Although some commenters 

have criticized the deference that NMFS 

gave to the states and offshore fishery 

51990 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

members in developing the Proposed 

Rule analyzed in the DEIS, the extensive 

outreach to fishermen informed the 

development of measures included in 

the final rule. Fishermen informed 

measures with important information 

such as number of traps that can fit 

safely on deck at one time, amount of 

force on rope hauled under commercial 

fishing practices, rope size that fits 

safely through blocks and haulers on 

commercial vessels, sizes of vessels and 

crews fishing at various distances from 

shore, local fishing conditions, and 

conservation equivalencies. 

Alternative 2 (Preferred) of the FEIS 

and the final rule consider those public 

comments, including many of the 

conservation equivalencies requested, 

and accommodate those changes along 

with measures from the Proposed Rule 

that benefitted from earlier scoping. 

Together, these measures should 

prevent this rulemaking from 

introducing hazards beyond those that 

already exist in the lobster and Jonah 

crab fisheries. 

Comment 7.15: NMFS should also 

evaluate the effects of these regulations 

on all the other large whale species in 

the region. 

Response: Chapter 5 of the FEIS 

evaluates the effects of the final rule on 

large whales, other protected species, 

and habitat. 

Comment 7.16: Thousands of 

commenters were concerned that 

cryptic mortality and uncertainty in the 

data was not taken into account when 

choosing the risk reduction target, and 

recommended an 80 percent risk 

reduction target or higher, with a few 

suggesting 100 percent. 

Response: The application of cryptic 

mortality estimates in determining 

annual entanglement mortality and 

serious injury rates relative to the PBR 

level was a new concept when first 

introduced to the ALWTRT in 2019. 

Peer review of the cryptic mortality 

estimate had not yet been completed 

and although it was discussed in the 

2018 Marine Mammal Stock Assessment 

Report (Hayes et al. 2019) that was 

available to the Team for the April 2019 

meeting, cryptic mortality was not 

incorporated into the entanglement 

related mortality and serious injury 

estimates in that report. The 60 percent 

target based on documented mortality 

was in itself seen as a difficult challenge 

for the Team given uncertainties about 

the location of origin of most 

documented entanglement events. The 

80 percent target was an initial attempt 

to account for early estimates of cryptic 

mortality, but was even more daunting 

and the Team recognized the 

uncertainty in that higher target given 

the many unknowns related to the 

unseen mortalities, including cause and 

location of deaths. Therefore, while the 

Team accepted the challenges of a 60 

percent mortality and serious injury risk 

reduction, they were unable to agree on 

the higher target. The recent paper by 

Pace et al. 2021 on cryptic mortality and 

the more recent analysis in the current 

population estimate (Pace 2021) now 

provide more support for the 80 percent 

target than at the time the ALWTRT 

undertook its efforts to develop 

recommendations. Our understanding of 

cryptic mortality will affect 

management decisions going forward as 

new stock assessments and PBR 

calculations incorporate this new 

science. 

Here, NMFS considered this new 

information, as well as the remaining 

uncertainty around apportioning 

mortalities to country and source, 

conservation equivalency 

recommendations from states and 

stakeholders, and the need for urgency 

in completing the current rulemaking 

constraining us to the scope of the 

analyses in the DEIS. Resulting 

modifications to the final rule included 

selection of a larger area closure south 

of the islands and modifications to 

management measures that improved 

risk reduction estimates to achieve a 

nearly 70 percent risk reduction as 

determined by the Decision Support 

Tool. Further efforts by NMFS to 

estimate serious injury and mortality 

and to apportion the estimates to 

country and mortality source will be 

included in guidance to the ALWTRT to 

support their development of 

recommendations for further 

amendments to the ALWTRP. 

Comment 7.17: NMFS should focus 

risk reduction efforts on areas of high 

right whale occurrence. 

Response: Chapter 3 in the FEIS 

describes how the alternatives were 

developed and explains that while 

precautionary measures are required 

throughout the regulated areas, more 

restrictive and protective measures are 

focused on areas of high right whale cooccurrence with buoy lines (e.g., the 

hotspot analysis that identified 

restricted areas). Particularly, the 

months and areas with highest whale 

occurrence and co-occurrence are the 

areas that were selected for seasonal 

restricted areas. However, as described 

in Chapters 2, 3, and 8 of the FEIS, there 

is also a great need to implement 

measures that will be resilient to 

changes in whale distribution and 

therefore requires broader precautionary 

risk reduction across the regulated area. 

Comment 7.18: Pending fishery 

management measures should not be 

counted in analyzing risk reduction. 

Response: Noted in the ALWTRT 

recommendations and throughout the 

development of this rule, other relevant 

actions that we considered to be 

reasonably certain to occur within the 

timeframe evaluated within this rule 

were treated as such in our analysis of 

anticipated risk reduction throughout 

the regulated area. We commit to 

monitoring the progress of these related 

actions and reporting our findings to the 

ALWTRT at future meetings for 

consideration. 

Comment 7.19: Massachusetts did not 

ban single traps on vessels longer than 

29 feet in their rule, so how was that 

risk reduction re-allocated? 

Response: During the development of 

the Proposed Rule, NMFS discussed this 

measure with the Massachusetts 

Department of Marine Fisheries and 

recognized that it was likely to be 

positive toward risk reduction. 

However, we were unable to estimate 

the impacts on risk. Since we did not 

assign any quantified risk reduction to 

that measure in the DEIS, there was no 

need to re-allocate it. 

Comment 7.20: NMFS should adopt 

Maine’s proposed conservation 

equivalencies. 

Response: As discussed in FEIS 

Section 3.3, NMFS is adopting most of 

the conservation equivalencies offered 

by Maine out to 12 nm, and is 

appreciative of the work done by Maine 

Department of Marine Resources and 

the Zone Councils to develop and 

recommend weak insertion and trawling 

up requirements in collaboration with 

Zone Councils that are familiar with 

capacity and constraints of Zonespecific fishing operations and 

conditions. 

Comment 7.21: Maine should get gear 

reduction credit if Maine funds tags or 

development of a GPS tracker. 

Response: Technology and tracking in 

and of themselves do not reduce the risk 

of fishing gear on large whales. 

However, if Maine develops a line 

reduction program and reporting/ 

tracking technology that demonstrates 

line reduction, it would be considered 

toward risk reduction. 

Comment 7.22: In LMA 3, NMFS 

should analyze the difference in risk 

reduction between a 50 percent 

reduction in buoy lines and the 

proposed closure with potential gear 

displacement. 

Response: Several scenarios were 

analyzed in Georges Basin Restricted 

Area for the DEIS and FEIS, including 

a 50 percent reduction in lines through 

a line cap or through trawling up and a 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51991 

restricted area. The FEIS includes longer 

trawl lengths in this area compared to 

the DEIS (50 traps per trawl versus 45 

traps per trawl) but still implements 

broader trawling up measures 

throughout LMA 3 in order to distribute 

risk reduction more evenly. The Georges 

Basin Restricted Area was predicted to 

increase co-occurrence in the DEIS (See 

co-occurrence maps in Chapter 5 and 

Appendix 5.2). 

Comment 7.23: How is the 

Massachusetts Restricted Area credit 

being added to the risk reduction 

estimates? 

Response: FEIS Section 3.3.5.1 

discusses credit assigned to the 

Massachusetts Restricted Area and 

provides an assessment of risk reduction 

with and without application of the 

value of that area. The Team 

unanimously supported including credit 

for the Massachusetts Restricted Area, 

which was fully implemented in its 

current configuration in 2015 (79 FR 

36585), given recent years’ increased 

use of that area by right whales (e.g., 

Ganley et al. 2019). 

Comment 7.24: Were all the proposals 

evaluated using the same model? 

Response: Each individual risk 

reduction measure and suite of 

measures were run through the Decision 

Support Tool (DST) Version 3 to 

identify the estimated contribution to 

risk reduction across the Northeast 

Region as defined by the Northeast 

Trap/Pot Management Area. 

Comment 7.25: The Woods Hole 

Oceanographic Institute has developed a 

methodology in collaboration with the 

fishing industry to attribute risk to gear 

based on proportion of water column 

occupied. This information must be 

considered in this rulemaking. 

Response: We anticipate adding this 

information to the DST in the near 

future. However, this is less important 

for the current rulemaking because an 

endline, assuming it approximates a 

straight line from the bottom to the 

surface, occupies all portions of the 

water column equally and the lobster 

industry has incorporated sinking 

groundline so groundlines may be 

assumed to have negligible presence in 

the water column. Incorporating 

proportions of the water column 

occupied are more critical for complex 

structures like gillnets or potential 

aquaculture installations, in which case 

it is important to model not only the 

proportion of water column occupied 

but also which portion of the water 

column is occupied and the vertical 

distribution of whales. This will be 

incorporated into the DST for future 

analysis of risk posed by different gear 

types that do not use the entire water 

column. 

Comment 7.26: Some commenters 

questioned the validity of the threat 

component of the DST. 

Response: The threat model based on 

the TRT opinion poll is no longer in 

use. Starting with the CIE review in 

2019, the threat model has been based 

only on the analysis of empirical data 

on rope breaking strengths, rope 

samples retrieved from entangled 

whales, and whale spatial distributions. 

At this time, the model is unfortunately 

constrained to rope breaking strength 

but in two years of polling scientists and 

stakeholders, nobody has proposed a 

viable alternative. It is appropriate for 

the threat model to be equally weighted 

with line and whale density because 

entanglement risk only exists when 

lines are present, whales are present, 

and the lines pose a risk to whales. If 

any of these three factors are not 

present, the risk of entanglement is zero. 

Comment 7.27: The DST is critically 

flawed in its reliance on an estimate of 

gear threat that significantly 

overemphasizes the contribution of rope 

strength to entanglement risk. By failing 

to account for the uncertainty inherent 

in the DST, NMFS overestimated the 

effectiveness of the selected methods for 

reducing risks to right whales. 

Response: There are uncertainties in 

the DST calculations that we have not 

fully quantified. However, it is 

important to distinguish between 

uncertainty and bias and we have no 

reason to believe that the inputs and 

therefore model outputs are particularly 

biased high or low. Thus, while there is 

unquantified uncertainty around the 

risk reduction calculated by the DST, it 

is equally likely that actual risk 

reduction is higher than estimated as 

lower than estimated and no reason to 

believe that risk reductions are 

overestimated. 

Comment 7.28: NMFS should 

implement these regulations as soon as 

possible as any delays come at the 

expense of right whales. 

Response: NMFS recognizes the 

urgency of the current situation and 

intends to implement these regulations 

to provide needed conservation benefits 

to right whales as soon as possible. We 

intend to implement new seasonal 

restricted areas 30 days after the rule is 

finalized. Massachusetts Restricted Area 

fishermen have indicated that it takes 

several trips for them to remove all of 

their gear, and because of unpredictable 

winter weather and holidays, they 

remove and move beginning at least a 

month in advance of their February 1 

closure. The LMA 1 closure will likely 

result in moved trawls rather than 

trawls brought to the beach and stored 

on land so may not require round-trips 

to the dock. Many fishermen moving 

gear from the South Island Restricted 

Area would be expected to remove gear 

prior to the February 1 closure; one 

month should provide sufficient time to 

remove gear. Gear configuration changes 

including trawling up, weak buoy lines 

or weak insertion installation, and gear 

marking, will be delayed for a longer 

period of time because these buoy and 

groundline modifications will take 

substantial time. The delayed effective 

date will factor in winter or low effort 

months when many fishermen have 

removed gear from the water for 

maintenance. The actual effective dates 

will depend on when the Notice of 

Availability of the FEIS and the final 

rule are released. Our intention is that 

all measures will be in place for the next 

fishing year starting in the spring of 

2022. 

Comment 7.29: Some components of 

the rule state prohibitions ‘‘to fish with, 

set, or possess’’ where other portions 

leave out ‘‘set.’’ If this was strategic, 

please clarify how ‘‘setting’’ is separate 

from the regulatory intent of ‘‘to fish 

with. 

Response: This was carryover 

language from the existing regulations. 

The word ‘‘set’’ is included within 

seasonal restricted areas; seasons when 

gear must be removed unless fishing 

without buoy lines. During the season 

that the gear can be fished with gear 

configuration requirements referenced 

in the regulations, the word ‘‘set’’ is not 

included. 

Comment 7.30: It is our 

understanding that any trap, pot, 

contrivance etc. that is capable of 

catching a lobster is required to have a 

valid lobster trap tag affixed to it. This 

would indicate that any trap which falls 

into this category is subject to the 

marking, weak insert, and trawling up 

requirements of this rule. We would ask 

for clarification on this assumption from 

NOAA, which should help to guide 

discussions in the next ALWTRT 

process which will be aimed at the 

additional gear types of gill nets and 

fish pots. 

Response: Any trap/pot within the 

Northeast Trap/Pot Management Region 

with a lobster trap tag will be required 

to comply with the marking, weak 

insert, weak line, and trawl length 

requirements. 

Comment 7.31: While some of these 

proposals may end up being effective, 

this proposal makes very clear that there 

is insufficient mortality and tracking 

data on right whales, and many of the 

suggested changes will be considerably 

51992 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

more detrimental to the fishing industry 

than beneficial to the whales. 

Response: The Decision Support Tool 

estimates at least a 60 percent reduction 

in entanglement risk, which is spread 

across the region to remain resilient to 

changes in right whale distribution. The 

population and distribution are 

frequently monitored via aerial/vessel 

surveys as well as with acoustic 

detection, and will be evaluated to 

ensure the measures are targeting areas 

where entanglement risk exists. See 

more about monitoring in response to 

Comment 9.10. 

Comment 7.32: The proposed rule 

does not consider reduction in effort, 

particularly for recreational fisheries. 

PEER urges NOAA to consider the effect 

of reducing or eliminating recreational 

fisheries in right whale habitat. 

Response: The ALWTRP only 

regulates Category I and II commercial 

fixed gear fisheries identified in the 

Plan. Additional regulation of 

recreational fisheries is outside the 

scope of the current rulemaking. 

8. Research 

Comments on research generally fell 

into one of three categories: Whale 

distribution, insufficiency of current 

data, and entanglements. Many of the 

fishermen commenting said they had 

either never seen a right whale where 

they fish, never seen or heard of an 

entangled right whale in areas where 

they fish, did not believe that there was 

any recent evidence of entanglement in 

their trap/pot lines, and questioned the 

validity of the scientific models on 

whale distribution. 

Comment 8.1: NMFS has not shown 

that entanglement in lobster trap/pot 

gear contributes to low birth rates. 

Response: There is a wealth of 

research that demonstrates that 

stressors, including entanglements in 

fishing gear like traps/pots, have effects 

on marine mammal health and 

reproduction. Entanglements in fishing 

line, such as those used in the lobster 

trap/pot fishery, is energetically costly 

for right whales and requires 

expenditure of a portion of their energy 

budget that would otherwise be 

allocated to reproduction (van der Hoop 

et al. 2017a). Entanglements can reduce 

overall whale health and increase 

calving intervals (Rolland et al. 2016, 

Moore et al. 2021). Entanglements that 

restrict feeding further impact energetic 

reserves and ability to feed (van der 

Hoop et al. 2017b). An inability to get 

enough food is also an important factor 

in the reproductive health of right 

whales (Meyer-Gutbrod et al. 2015). See 

FEIS Chapters 5 and 8. 

Comment 8.2: Healthy whales don’t 

get entangled in fishing gear; there is 

something else wrong with them. 

Response: Several commenters stated 

the belief that healthy whales do not get 

entangled in fishing gear. Entanglement 

in fishing gear is a global problem that 

has been documented for many whale 

and dolphin species. In the Northeast 

Region, humpback and minke whale 

entanglements are not uncommon. More 

than 85 percent of North Atlantic right 

whales have experienced entanglement 

in fishing gear, many more than once. A 

recent assessment of all right whale 

photos reveals that entanglement 

scarring injuries have increased, with 

roughly more than 30 percent of the 

population having at least minor 

entanglements each year. Much of the 

population has been entangled multiple 

times, and there is a more than 90 

percent chance that a healthy female 

will get entangled between each calving 

cycle potentially contributing to 

reduced calving rates. Repeated and 

chronic entanglement affects whale 

health and some whales with unrelated 

compromised health status may be more 

vulnerable to injury and death. 

However, there is no evidence that 

healthy whales are more adept at 

avoiding entanglement. 

Comment 8.3: NMFS should hire 

mechanical engineers to examine the 

rope and net configurations that are 

causing entanglements to occur. 

Response: NMFS conducts extensive 

analysis of recovered gear from 

entangled whales using our gear team, 

which includes former and active 

fishermen. We also regularly consult 

with active fishermen who have decades 

of experience and are well versed in 

various fishing methods and local 

practices. The various configurations we 

have seen over decades of recorded 

entanglements varies widely, but the 

basic fact is that rope or net in the water 

column has the potential to entangle 

large whales. NMFS also funds bycatch 

reduction research, and considers 

research by right whale scientists that 

include modeling of entanglement 

configurations. NMFS does not believe 

that hiring mechanical engineers is 

necessary. 

Comment 8.4: NMFS should develop 

a plan to monitor all whale 

entanglements, including observer 

coverage and satellite monitoring. 

Response: NMFS, state, and 

independent research organizations 

coordinate monitoring whale 

entanglements. Monitoring of entangled 

whales is done through comprehensive 

survey effort to resight individuals and 

check for entangling gear or scarring. 

Satellite position beacons are sometimes 

attached to gear entangling a whale to 

facilitate finding the whale for a 

disentanglement effort. Because whale 

entanglement incidents are rare relative 

to fishing effort hours and whales 

typically carry gear away from incident 

sites before a vessel returns to the gear, 

an observer program is not an effective 

means for large whale entanglement 

monitoring. 

Comment 8.5: How can NMFS justify 

a seasonal restricted area if there have 

been no confirmed entanglements in 

that area in over a decade? No North 

Atlantic right whales have been 

entangled in gear attributable to Maine 

trap/pot gear in at least 15 years, 

because the whales no longer are in 

Maine waters. 

Response: No gear remains on most 

right whales that bear entanglement 

scars. In the cases where gear does 

remain, it is rarely collected, and even 

more rarely has any identifying marks. 

Between 1980 and 2016, the New 

England Aquarium analyzed 1,462 right 

whale entanglement interactions (A. 

Knowlton pers comm). Only 110 of 

these incidents had gear still attached, 

and in only 13 cases could that gear be 

traced to the original set location. 

Because we lack information on exactly 

where interactions occur, we use areas 

of high co-occurrence of right whales 

and fishing gear as a proxy for 

identifying areas of high entanglement 

potential. The Decision Support Tool 

also considers the type of gear in 

determining the risk of a serious 

entanglement that would cause 

mortality or serious injury. The seasonal 

restricted areas identified in the final 

rule are based on hot spots, areas with 

high current and historic habitat use by 

North Atlantic right whales, high fishing 

gear density and high configuration 

threat. The population and distribution 

are monitored via aerial/vessel surveys 

as well as with acoustic detection, and 

will be evaluated to ensure the 

restricted areas are effective. See more 

about evaluation below in response to 

Comment 9.10. 

Until September 2020, when Maine 

required gear marking in exempted 

waters, most Maine lobster fishery buoy 

lines were unmarked. Therefore, if a 

buoy line fished by a vessel operating 

under a Maine permit entangled a right 

whale, the odds of tracing that rope to 

a Maine lobster fishery buoy line have 

been extremely low. The commenters 

are correct that no rope retrieved from 

a right whale has been specifically 

traced to gear set by Maine trap/pot 

fishermen since the 2000s. However, 

cases in 2011 and 2012 were identified 

as U.S. unknown trap/pot gear with red 

ALWTRP marks, consistent with the 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51993 

marking scheme for Maine fishermen 

outside of exempted waters during those 

years. Additionally, a number of 

anchored minke whales and humpback 

whales have been identified in Maine 

gear in the past 15 years. Maine lobster 

buoy lines entangle and kill whales. 

As noted by the commenters, right 

whale distribution has changed in the 

past decade, and there may be fewer or 

less dense aggregations of whales in the 

Gulf of Maine. Right whales continue to 

occur in Maine waters; however, and 

given the endangered status of the 

population, the high rate of 

entanglements evidenced by scars on 

right whales, and the continued 

mortality and serious injuries above 

PBR, NMFS must provide protective 

measures throughout the population’s 

range in U.S. waters. 

Comment 8.6: One commenter 

indicated that the data shows that 

gillnet and netting gear were the most 

prevalent gear (other than Canadian 

snow crab gear) and the Northeast 

lobster fishery were the least prevalent 

in right whale entanglements. 

Response: As detailed in Chapter 2, 

while gillnet gear may be identified at 

rates higher than anticipated given the 

relative number of buoy lines, there are 

more cases identified as trap/pot found 

on right whales than identified gillnet 

gear and the most prevalent gear seen on 

right whales is described as unknown 

rope. 

Comment 8.7: The Decision Support 

Tool relies on coarse data for both line 

density and whale density, and should 

not be used. There is no way to model 

where the whales are and where the 

gear is with any degree of certainty. 

Response: The Decision Support Tool 

(DST) was and continues to be the best 

available analytical tool to assess the cooccurring risk of large whale 

entanglement in commercial fixed gear. 

The model compiles the best available 

large whale habitat density modeling by 

Roberts et al. (2016) which incorporates 

data from nearly every systematic 

marine mammal survey of the eastern 

United States. The DST also draws from 

every available state and Federal 

fisheries data source to incorporate the 

best available estimate of the 

distribution of fixed gear fisheries 

vertical lines within the Exclusive 

Economic Zone. We agree that there are 

uncertainties associated with this 

model, and any model, but we are 

confident in the DST’s ability to inform 

the Team’s discussion and 

recommendations toward a risk 

reduction goal. 

Comment 8.8: NMFS right whale 

population model overestimates the 

cumulative mortalities. 

Response: The estimates of total 

mortality are derived from a peerreviewed methodology designed to 

estimate the abundance of North 

Atlantic right whales. The model itself 

is a version of methodology used for 

many species of wildlife in which 

particular statistical characterizations 

are used to characterize the capture and/ 

or resighting (both alive and dead) 

histories of individually marked whales 

to estimate survival rates. These models 

take into account that individuals are 

not seen every year, and this particular 

model allows individuals to have 

different probability of being ‘‘captured’’ 

on each capture occasion. 

It is true that these models cannot 

distinguish between true mortality and 

the appearance of mortality that would 

come from an individual permanently 

leaving the survey areas. For that to 

happen in great abundance would 

suggest that many whales use the 

United States and Canadian coasts for 

enough time to become catalogued and 

then decide to move elsewhere and 

never return. There is simply no 

evidence for that scenario. Indeed, there 

is abundant evidence that the great 

mobility and long life of right whales 

allows them to take modest sojourns to 

Icelandic and even Norwegian waters 

and return to the survey areas to be 

‘‘recaptured’’ once again. 

Very few wildlife populations even 

approach having all mortality 

documented by detected carcasses. 

Despite the vast survey effort directed at 

right whales, given the large amount of 

area that right whales travel, right 

whales and other large whales likely die 

without their carcasses ever being seen. 

Comment 8.9: NMFS should use a 

longer time series to make any 

determinations, as well as acoustic and 

prey data. 

Response: The FEIS is a compilation 

of the best available scientific 

information including information on 

documented and projected changes in 

prey distribution. Acoustic data are 

increasingly used to identify right whale 

distribution and are included in the 

near real-time sightings posted on our 

website at fisheries.noaa.gov/resource/ 

map/north-atlantic-right-whalesightings, and passive acoustic 

monitoring research is available at appsnefsc.fisheries.noaa.gov/pacm/#/narw. 

For a complete list of citations, see the 

list of references included at the end of 

every FEIS chapter. 

Recent population models 

demonstrate that the right whale 

population decline began in 2010 and 

accelerated around 2015 (Pace et al. 

2021). We cannot wait another decade 

to respond to that decline. 

Comment 8.10: Thousands of 

commenters who submitted comments 

as part of a campaign noted that the 

Proposed Rule relied on outdated 

population estimates to calculate PBR, 

and requested that the calculations be 

updated and a new PBR determined. 

Response: The calculations in the 

DEIS showing how NMFS proposed to 

achieve that risk reduction relied on the 

2018 Stock Assessment report available 

when the DEIS was drafted, using 2016 

population estimates. The FEIS has been 

updated with the most recent 

population estimate (Pace et al. 2021) 

and stock assessment data (Hayes et al. 

2020), including the PBR of 0.8, down 

from 0.9 in the DEIS. For more, see FEIS 

Section 2.1.1. 

Comment 8.11: NMFS should use 

peer-reviewed science before 

implementing any regulations. 

Response: NMFS concurs. The FEIS is 

a compilation of the best available 

scientific information. Included in the 

FEIS are data from the Stock 

Assessment Reports, which are peer 

reviewed by the Atlantic Scientific 

Review Group and subject to review by 

the public, and results from the 

Decision Support Tool, which 

underwent an independent peer review 

conducted by the Center for 

Independent Experts. 

Comment 8.12: The data used to 

determine whale distribution is flawed 

and incomplete, and therefore should 

not be used to make regulations. 

Response: NMFS disagrees with this 

assessment. The whale distribution data 

is the best available information. 

Although more data will help increase 

the accuracy of analysis results, there is 

no indication that results to date are 

incorrect, nor is there evidence that 

either the data or the analytical 

approaches taken to date are flawed. 

The data have been collected with strict 

adherence to established protocols, and 

analyses have used accepted peerreviewed statistical methods. 

Comment 8.13: What are the 

migratory patterns of right whales in 

LMA 2? 

Response: An interactive map of right 

whale sightings data, including 

sightings in LMA 2, can be found online 

at fisheries.noaa.gov/resource/map/ 

north-atlantic-right-whale-sightings. 

Comment 8.14: NMFS should do more 

to gather data on right whale 

distribution, including increasing aerial, 

boat-based, and drone surveys. 

Response: We agree that more data are 

needed to refine our understanding of 

right whale distribution. With available 

resources, NMFS is maintaining aerial 

surveys, increasing acoustic surveys and 

investigating additional tools to 

51994 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

document whale distribution and 

individual identification. NMFS is 

working to identify the primary factors 

that correlate with right whale 

distribution to help identify other areas 

where right whales are likely to occur to 

direct future survey efforts. 

Comment 8.15: NMFS should develop 

ways to tag and track right whales. 

Response: NMFS agrees that tagging 

would help us learn more about right 

whale movements and habitat use. 

Long-term attachments used in past 

studies require an invasive approach to 

implant tag anchors. These efforts were 

halted on right whales out of concerns 

regarding potential health impacts. 

NMFS has supported development of 

less invasive tags to track (greater than 

24 hours) right whales since 2014. First, 

we began supporting an investigation 

into using dart-style Low Impact 

Minimally Percutaneous Electronic 

Transmitters (LIMPETs) on right whales. 

Although a few of the tags successfully 

tracked right whale movements through 

the mid-Atlantic, most tag attachments 

were relatively brief. Fortunately, there 

was no evidence of negative health 

impacts in any of the whales that were 

tagged. We also began, and continue to 

support, the development of blubberonly tags. These are slightly more 

invasive than the LIMPET tags. The 

fieldwork component of this study was 

interrupted by the global pandemic. 

Still, tag enhancements continue to be 

supported including investigations into 

tag materials, tag retention methods, etc. 

It should be noted that despite several 

decades of development, many of the 

technical and logistical challenges of 

tagging continue to limit the utility of 

this approach. It is therefore important 

for NMFS to continue and enhance 

existing monitoring programs to provide 

whale location information for a large 

portion of the population. 

Comment 8.16: NMFS should use 

spotter planes to make fishermen aware 

of when whales are in their area. 

Response: NMFS uses multiple means 

to track right whales, including aerial 

surveys and acoustic monitoring 

systems. Near real-time sighting 

information can be found on our 

website at fisheries.noaa.gov/resource/ 

map/north-atlantic-right-whalesightings. 

Comment 8.17: Warming in the Gulf 

of Maine is causing changes in copepod 

distribution, driving whales to Canada, 

and out of Maine. 

Response: NMFS agrees that large 

whales are susceptible to ecosystem 

changes caused by climate change and 

right whale habitat use changes have 

been documented. Baleen whales will 

most likely continue to expand or shift 

their current range in response to prey 

species but the nature of the impacts 

varies by species (MacLeod 2009). Right 

whale habitat shifts in recent years 

follow their preferred prey farther north 

as the Gulf of Maine warms (MeyerGutbrod et al. 2018, Meyer-Gutbrod and 

Greene 2018, Record et al. 2019a, 

Record et al. 2019b). Climate change 

impacts their preferred prey abundance, 

which is known to impede reproductive 

success in this species (Meyer-Gutbrod 

et al. 2015a). Since 2010, there has been 

a documented change in right whale 

prey distribution that has shifted right 

whales into new areas with nascent risk 

reduction measures, increasing 

documented anthropogenic mortality 

(Plourde et al. 2019, Record et al. 2019). 

However, data shows that while 

abundance and duration of stays may 

have shifted, right whales still occur in 

waters offshore of Maine and 

throughout the Gulf of Maine at various 

times of the year. Past and near realtime right whale sighting information 

can be accessed online at 

fisheries.noaa.gov/resource/map/northatlantic-right-whale-sightings. 

Comment 8.18: North Atlantic right 

whales do not occur in coastal, shallow 

waters or in LMA 1, and therefore, 

Maine coastal waters, particularly inside 

the 3 nm line, should be exempted from 

these regulations. 

Response: Gear marking and weak 

insertion requirements inside the Maine 

exempted waters are not included in 

this rulemaking. These measures are 

(gear marking) or will (weak insertions) 

be implemented by Maine DMR. Note, 

however, that the risk reduction benefits 

of weak insertions are considered in the 

FEIS. 

Comment 8.19: Massachusetts lobster 

and Jonah crab trap/pot fishing gear has 

never killed a right whale. These 

regulations will not save whales and 

will force Massachusetts lobstermen out 

of business. 

Response: No gear remains on most 

right whales that bear entanglement 

scars. In the cases where gear does 

remain, it is rarely collected, and even 

more rarely has any identifying marks. 

Between 1980 and 2016, the New 

England Aquarium analyzed 1,462 right 

whale entanglement interactions (A. 

Knowlton pers comm). Only 110 of 

these incidents had gear still attached, 

and in only 13 cases could that gear be 

traced to the original set location. 

Because we lack information on exactly 

where interactions occur, we use areas 

of high co-occurrence of right whales 

and fishing gear as a proxy for 

identifying areas of high entanglement 

potential. For example, the 

Massachusetts Restricted Area was 

identified in the 2014 modifications to 

the ALWTRP based on high cooccurrence given frequent habitat use by 

North Atlantic right whales and fishing 

gear density. There are other areas in 

Massachusetts that have been identified 

as hotspots where entanglement risk is 

high for right whales based on predicted 

whale density and the presence and 

strength of trap/pot gear (see Chapter 3). 

There are cases in 2011 and 2012 

where gear was recovered and were 

identified as U.S. unknown trap/pot 

gear with red ALWTRP marks, 

consistent with the marking scheme for 

Massachusetts fishermen outside of 

exempted waters during those years. In 

2001 and 2016, right whale mortalities 

or serious injuries in Massachusetts 

lobster gear were avoided only because 

they were successfully disentangled. 

Additionally, a number of anchored 

minke whales and humpback whales 

have been identified in Massachusetts 

gear in the past 15 years, so 

Massachusetts lobster buoy lines do 

entangle and kill whales. 

Comment 8.20: Whale population 

data is flawed because right whales are 

traveling between Iceland and Labrador, 

and are not dead as the model suggests. 

Response: The right whale population 

model estimates the number of right 

whales that have disappeared from the 

population. Given the high percentage 

of the population seen in most years, 

those whales are to some extent 

presumed dead. It is possible that some 

right whales are not dead, but have 

emigrated to another area for an 

extended period. Some individuals have 

been resighted after an absence of many 

years. This is unusual, however, and it 

is unlikely that all the whales 

considered dead have only emigrated. 

We currently have few records of right 

whales seen beyond Newfoundland, and 

to date the whales photographed in the 

Eastern Atlantic have all been seen 

again in U.S. waters. See our response 

to Comment 8.7 for more detail. 

9. Restricted Areas 

The vast majority of commenters 

associated with campaigns, as well as at 

least 97 unique commenters, support 

restricted areas as a management tool, 

with many suggesting that some or all 

of the closures should be larger and/or 

longer. A few commenters did not 

support specific restricted areas, and 

some did not support restricted areas of 

any kind. Many commenters supported 

the idea of dynamic management for 

restricted areas, such that the areas 

could be opened if no right whales were 

documented in the area at the time of a 

closure or areas could be closed upon 

the sightings of right whales. Several 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51995 

commenters questioned the risk 

reduction value for the Massachusetts 

Bay Restricted Area, which we did 

continue to include in our risk 

reduction estimate for the Preferred 

Alternative, as described in FEIS 

Section 3.3.4.2. 

Comment 9.1: Several commenters 

suggested that restricted areas should 

apply to gillnet/mobile gear. 

Response: The ALWTRT is meeting to 

develop recommendations to reduce the 

risk of gillnet and other trap/pot 

fisheries on right whales and other large 

whales. Seasonal restricted areas are 

likely to be among the risk reduction 

strategies considered by the Team. 

Comment 9.2: NMFS should use 

dynamic closures such as those being 

used in Canada. Dynamic closures 

would allow fishermen to keep fishing 

as long as the whales are not there. 

Response: The ALWTRP has used 

Seasonal Area Management to protect 

right whales in areas of annual 

predictable aggregations since the 

inception of the Plan. The Plan also has 

employed dynamic management to 

protect temporary right whale 

aggregations. Measures implemented 

through amendments to the Plan in 

2002 triggered closures or gear 

modification requirements for lobster 

and gillnet fishing within a prescribed 

distance from sightings of right whale 

aggregations. Borggaard et al. (2017) 

summarizes the ALWTRP’s 

amendments, including the evolution of 

the Dynamic Area Management (DAM) 

program. More than 60 dynamic area 

management zones were implemented 

between 2002 and 2009. Borggaard et al. 

notes that the program was 

administratively burdensome and 

attracted significant complaints 

regarding feasibility and effectiveness, 

ranging from delayed implementation 

preventing whale protection, to such 

rapid implementation that fishermen 

could not safely remove or modify their 

gear in time for the required effective 

dates. Given these concerns about the 

DAM program, the Team modified the 

Plan to instead apply broad-based 

extensions of the gear modifications 

used in DAMs (such as sinking 

groundline required in most trap trawls 

through 2009 Plan amendments). Broadbased gear requirements afford 

protection to whales, and is a measure 

that is resilient to changes in whale and 

fishery distribution. 

Although it was not effective at 

preventing mortalities in 2019, Canada’s 

vessel speed and fishery dynamic 

management program seems to have 

afforded substantial protection to right 

whales in the Gulf of St. Lawrence in 

2018 and 2020. Canada implements 

time-area closures with boundaries that 

vary based on direct observations that 

respond to annual or seasonal resources 

distribution changes. To be done well 

Canada currently implements an 

intensive and expensive surveillance 

program through aerial surveys and 

acoustic monitoring. Canada also has an 

agile regulatory implementation 

authority. 

While NMFS and our collaborators 

may be able to support an intensive 

surveillance program when resources 

are available, the U.S. regulatory 

requirements are not as agile. As 

discussed above, while DAMs were 

being implemented, NMFS rulemaking 

was often unsuccessful at responding 

rapidly to changing conditions. NMFS 

rulemakings under the MMPA and ESA 

are also subject to procedurally complex 

Federal laws and requirements that 

Canadian resource management is not 

subject to, including NEPA, PRA, APA, 

and E.O. 12866. These laws include 

consultation requirements, notice and 

comment requirements, and 

environmental and economic analyses 

of the impacts of Federal rulemaking 

before final decisions can be made about 

Federal actions that could have 

environmental effects. Evaluating the 

impacts of future actions that have not 

yet been determined is logistically very 

challenging. NMFS, other Federal 

agencies, and many collaborators are 

continuing to develop models that may 

be able to project prey and whale 

distribution into future months that 

could provide tools to develop 

predictable triggers for dynamic area 

management measures. 

Comment 9.3: Many commenters 

voiced concern that NMFS had not 

adequately accounted for the effort 

displacement and crowding that will be 

caused by closures. 

Response: In response to these 

comments, we modified our analysis in 

the FEIS to consider the impacts that 

would be caused by vessels relocating 

gear from the LMA 1 Restricted Area to 

offshore waters of Maine Lobster Zones 

C, D, and E. The analysis in FEIS 

Section 6.3 estimates the landing 

reduction for all vessels outside 12 nm 

in Maine Lobster Zones C, D, and E by 

using data from the Maine DMR 

harvester reports, which are only 

available for 10 percent of Maine lobster 

fishermen, and from 100 percent of the 

dealer reports. 

Comment 9.4: How will the restricted 

areas affect mobile gear fishermen? 

Response: Restricted areas may result 

in opening up of fishing habitat that 

mobile gear vessels have not been able 

to access due to the presence of lobster 

trawls, although the benefits may be 

marginal. 

Mobile gear fishermen have expressed 

concerns about conflicts with ropeless 

gear trawls that may be fished under 

EFPs and that could increase gear 

conflicts if trawlers do not know the 

gear is on the bottom. The final rule 

changes existing and new seasonal 

restricted areas from fishing closures to 

buoy line closures. This would allow 

the use of gear fished without buoy lines 

(commonly referred to as ‘‘ropeless’’ 

gear). Fishermen who obtain EFPs to 

fish without buoy lines could pose some 

gear conflict threat to mobile gear 

fishermen. Ropeless experimentation 

with the proper authorization can be 

done anywhere, however access to areas 

otherwise closed to lobster fishing could 

incentivize fishermen to conduct 

ropeless fishing within the seasonal 

restricted areas. 

Ropeless experimentation in the 

lobster and black sea bass trap/pot 

fisheries is occurring already. In the 

northeast, NMFS and ropeless fishing 

collaborators are working with 

groundfish and scallop bottom trawl 

fishermen to assess bottom marking 

technology being developed to allow 

mariners to detect lobster. Concerns that 

this experimentation will occur broadly 

in the near term appear to be 

unfounded. Due to the cost of ropeless 

technology, for the foreseeable future we 

believe that ropeless experimentation 

will be limited to collaborators 

accessing the NMFS ropeless gear cache, 

with perhaps an additional 10 percent 

of trawls being fished with other 

ropeless units. The NMFS gear cache 

also loans technology to collaborating 

mobile gear fishermen. For the next few 

years, we anticipate that the largest 

number of trap/pot trawls that could be 

supported by these efforts would 

approach about 330 pot/trap trawls 

coastwide (Maine through Florida). 

Additionally, we anticipate that EFP 

conditions will require participants to 

work with adjacent trawl fisheries, as 

well as other notice requirements that 

will prevent gear conflicts and support 

enforcement efforts. Collaboration 

across gear sectors, use of the NMFS 

ropeless gear cache, and reporting and 

monitoring conditions under exempted 

fishing permits should keep costs and 

gear conflicts to a minimum while 

ropeless technology is evaluated for 

potential use as an alternative to fishery 

closures. 

Comment 9.5: Many commenters were 

concerned that restricted areas would 

create ‘‘walls’’ of dense gear right 

outside the borders, posing a greater risk 

to right whales. 

51996 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

Response: We have modified our 

analysis in the FEIS to consider gear 

displacement in response to the 

restricted areas. These analyses resulted 

in changes in the South Island 

Restricted Area selected for final 

rulemaking, and was one of the reasons 

that a seasonal buoy line closure was 

not selected for the Georges Basin 

Restricted Area in the preferred 

alternative. Updated calculations on the 

gear displacement effects of restricted 

areas suggested the alternative restricted 

areas displaced gear to areas of equal or 

higher co-occurrence, although ‘‘walls’’ 

of gear were not projected. The borders 

of the restricted areas are not uniformly 

productive lobster habitat. Fishermen 

are more likely to redistribute their gear 

to fishing ground that is productive. 

Please see Chapters 3, 5, and 6 of the 

FEIS for more details. 

Until recently, NMFS had no 

evidence that existing closures created 

‘‘walls’’ of gear. In April 2021, however, 

concentrations of gear were observed in 

a small open area east of the state of 

Massachusetts extended spring closure 

area and west of the Massachusetts 

Restricted Area (MRA). This appears to 

be an unintended consequence of the 

state extension of the MRA in state 

waters to the northern state boundary. 

Although this patch of Massachusetts 

Bay is not a productive fishing ground 

during this season, fishery managers 

believe that fishermen permitted to fish 

in both state and Federal waters did not 

remove their gear in response to the 

closure, but instead moved gear out of 

the state waters and into this small open 

band of water while waiting for the 

MRA to open up May 1 (Bob Glenn, 

Massachusetts DMF, pers comm April 

26, 2021). Federally permitted 

fishermen may also have been staging 

their gear, taking it out over multiple 

trips and days until the MRA opened. 

NMFS will consider future rulemaking 

to extend the northern boundary of the 

MRA across to the coast to close that 

gap and prevent an annual development 

of this high-risk dense gear storage area. 

The unconstricted nature of waters 

surrounding other seasonal restricted 

areas are not expected to similarly 

aggregate gear. 

Comment 9.6: NMFS should add a 

restricted area north of Georges Bank 

and/or expand the Georges Bank 

restricted area. Georges Basin has a right 

whale hot-spot analysis five times 

greater than LMA 1. 

Response: The final rule does not 

implement a restricted area in Georges 

Basin, but instead includes additional 

reduction of lines in this area (50 traps 

per trawl within the restricted area). The 

previous analyses suggest that it is 

difficult to restrict fishing in this 

hotspot without pushing effort to areas 

that increase risk outside of the hotspot 

based on predicted whale density (see 

co-occurrence maps in Chapter 5 and 

Appendix 5.2 the DEIS). Broad line 

reduction, however, achieves line and 

associated risk reduction without 

incidentally increasing co-occurrence of 

gear with right whales within this area. 

Comment 9.7: The Pew Charitable 

Trusts’ online message campaign of 

more than 47,000 submissions requested 

that NMFS implement a year-round 

closure South of the Islands, and 

seasonal closures in three areas in the 

Gulf of Maine: Downeast summer 

closure from August 1–October 31, a 

western Gulf of Maine spring closure 

from May 1 to July 31, and an offshore 

migration closure from October 1 to 

April 30. 

Response: NMFS analyzed the Gulf of 

Maine closures proposed by The Pew 

Charitable Trusts along with the yearround closure proposed in southern 

New England. Some of the areas 

identified were predicted to move gear 

into areas of equal or greater risk. One 

area south of Cape Cod is similar to the 

seasonal restricted area implemented in 

this rule, although the area they 

proposed was larger in size and 

duration. The risk reduction estimate for 

the configurations and seasons proposed 

by Pew would achieve an estimated 12 

percent risk reduction according to 

Decision Support Tool Version 3, using 

the updated right whale habitat density 

model (2010–2018). 

However, to implement these 

measures, NMFS would have to set 

aside the current rulemaking conducted 

under the ALWTRT, and divert staff 

working on final rule and FEIS to 

prepare a new rule and NEPA analyses, 

not a small undertaking. The final rule, 

which is estimated to achieve 

approximately 67 percent risk 

reduction, is the NMFS priority. See 

FEIS Section 3.4 for a further discussion 

of the petition and other alternatives 

that were considered but rejected. 

Comment 9.8: Many commenters 

wanted to know how NMFS will 

evaluate and modify restricted areas 

based on changes to whale distribution, 

and how often those evaluations will 

take place. 

Response: NMFS anticipates annual 

meetings of the Team to review the 

North Atlantic right whale and other 

large whale distribution and abundance 

data, mortality and serious injury 

updates, retrieved entanglement gear 

analyses, fishing effort data, and other 

relevant research results. These data 

will be incorporated into the next 

iterations of the Decision Support Tool. 

The Team will consider modifications 

to seasonal restricted areas on an annual 

basis, and the team will continue to 

make recommendations to amend the 

Plan. Following the recommendations of 

the NMFS Expert Working Group, 

which reviewed the right whale 

surveillance and monitoring programs 

(Oleson et al. 2020), the NEFSC 

anticipates a three-year surveillance and 

review cycle, providing an additional 

opportunity to review right whale 

distribution data to evaluate seasonal 

restricted areas and other conservation 

measures contained within the 

ALWTRP. 

Comment 9.9: Restricted areas should 

be based on the best available science, 

which includes recent and historical 

sightings, acoustic data, and prey data. 

Response: As described in FEIS 

Section 5.1, the seasonal restricted areas 

that are being implemented through the 

final rule are based on the best available 

information, including recent and 

historical right whale and other large 

whale sightings data, acoustic 

monitoring data, and data on prey 

distribution. The FEIS includes analysis 

based on updated data that has become 

available since we drafted the DEIS. 

Comment 9.10: Dynamic triggers for 

closures would not be feasible, and 

NMFS should remove that from 

consideration in the final rule. 

Response: NMFS agrees that real time 

data are not available to develop an 

effective trigger for restricted areas. To 

reduce risk to right whales, the LMA 1 

area will be implemented as a closure to 

lobster/Jonah crab fishing with buoy 

lines from October through January each 

year. 

Comment 9.11: Commenters 

suggested that LMA 1 was designated a 

‘‘hotspot’’ for right whales based on old 

data, and should be analyzed using data 

after the ecosystem shift that began in 

2010. As a result of old data, the 

analysis in the proposed LMA 1 closed 

area appears to be disproportionately 

high in risk reduction value compared 

to the Massachusetts Restricted Area, 

given the relatively low abundance of 

right whales in that area and the high 

abundance in Cape Cod Bay. 

Response: In the DEIS, we evaluated 

whale data from 2003 to 2017 (Whale 

model 8, DST Version 2). The proposed 

LMA 1 Seasonal Restricted Area was 

estimated to have the same risk 

reduction value of the MRA. However, 

when the Duke whale model was 

updated to include only whale 

distribution since 2010 (Whale model 

11, DST Version 3), while the spatial 

distribution off Maine generally didn’t 

change, the relative abundance of right 

whales did. Using the newer data, the 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51997 

LMA 1 restricted area contributes less 

risk reduction benefit (approximately 

6.6 percent) than was considered in the 

DEIS when considered across all of the 

Northeast Lobster Trap/Pot Management 

Area. However, the value of the LMA 1 

Seasonal Restricted Area remains an 

important piece of the risk reduction for 

Maine permitted fishermen. See FEIS 

Sections 3.1.2.5.1 and 5.3.1.1.2 for more 

information regarding the selection and 

analysis of the LMA 1 restricted area. 

The LMA 1 Seasonal Restricted Area 

was created to supplement the risk 

reduction contribution of the Maine 

lobster fishery to the overall 60–80 

percent risk reduction for the Northeast 

Trap/Pot Management Area, following 

the ALWTRT’s recommendation in 

April 2019 to spread risk reduction 

across jurisdictions. The original 

recommendation approved by the Maine 

caucus achieved that level of risk 

reduction primarily through a 50 

percent line reduction. However, after 

the ALWTRT meeting, the Maine DMR 

and the Maine Lobstermen’s Association 

members on the Team withdrew their 

support for such extensive line 

reduction measures. Maine DMR 

developed alternatives and used an 

alternative risk reduction calculation to 

demonstrate their belief that their 

alternative, which included broad use of 

weak insertions and some trawling up to 

reduce vertical buoy line numbers, 

achieved a 60 percent risk reduction. 

NMFS’ analysis of the Maine risk 

reduction measures for the DEIS 

estimated that the Maine DMR revisions 

were insufficient to achieve 60 percent 

risk reduction for Maine-permitted 

fishermen in LMA 1. In discussions 

regarding preliminary analyses with 

Maine DMR prior to their submission of 

alternatives, NMFS suggested a closure 

along the LMA1 Restricted Area border 

with LMA 3 to improve the risk 

reduction calculation for that area 

during winter months when right 

whales have been demonstrated to 

aggregate in offshore waters. 

Comment 9.12: NMFS erred in 

conducting hot-spot analysis by Lobster 

Management Area rather than the region 

as a whole, and as a result, fails to 

provide evidence that the LMA 1 

Restricted Area is supported by the data. 

Response: We disagree. As analyzed 

in FEIS Section 5.1, and in comment 

9.11 above, the LMA 1 Restricted Area 

provides significant risk reduction for 

right whales. This area was identified as 

part of a Northeast Trap/Pot 

Management Area fishery-wide hotspot 

analysis. See FEIS Section 3.1.2.4 for 

further details. 

Comment 9.13: Several commenters 

suggested that LMA 1 should be closed 

in the spring rather than fall, both to 

alleviate lost profits and to protect 

calves. 

Response: In evaluating the risk 

reduction provided by the restricted 

areas, we relied on the peer-reviewed 

DST. The DST does not indicate 

substantial risk reduction from 

restricted areas implemented in the 

spring or summer months. The DST 

indicates that October through January 

demonstrate the most effective risk 

reduction to right whales. See FEIS 

Section 5.1 for more information. 

Estimated right whale habitat density 

and co-occurrence is included in the 

table below. 

TABLE 5—LMA 1 MONTHLY RIGHT

WHALE DENSITY AND CO-OCCURRENCE WITH BUOY LINES

Month Right whale 

habitat density 

Right whale 

co-occurrence 

January ..... 6.31 23.50 

February ... 1.37 3.87 

March ........ 0.12 0.33 

April ........... 0.16 0.43 

May ........... 0.98 1.74 

June .......... 0.85 1.26 

July ........... 0.44 0.66 

August ....... 0.17 0.37 

September 0.35 0.74 

October ..... 4.50 11.00 

November 8.75 24.42 

December 5.37 15.99 

Comment 9.14: NMFS should allow 

ropeless fishing in LMA 1. 

Response: The LMA 1 Seasonal 

Restricted Area would be a buoy line 

closure rather than a fishery closure. 

Fishermen with an EFP for fishing 

without the use of persistent buoy lines 

would be able to fish within the 

seasonal restricted area from October to 

January. 

Comment 9.15: NMFS should 

reconfigure the LMA1 restricted area so 

that it would be narrower and run the 

entire length of the Area 1 line, and 

should also be at least the same size— 

if not larger—on the Area 3 side of that 

line, too. This would spread the burden 

of the closure, and would benefit the 

whales according to the co-occurrence 

model. It would also reduce crowding at 

the area borders, and the accompanying 

gear conflicts and losses. 

Response: This is a novel idea that 

could have been assessed if it had been 

received during scoping. Because this 

proposed seasonal restricted area was 

not analyzed in the DEIS, we are unable 

to implement it through final 

rulemaking at this time. The ALWTRT 

could consider this as an amendment 

during future discussions. 

Comment 9.16: A number of 

commenters suggested that the LMA 1 

restricted area was not supported by the 

acoustic data, either because acoustic 

gliders were not deployed at the right 

time of year, or because the acoustic 

data showed that only 27 percent of the 

right whale detections were inside LMA 

1. 

Response: The right whale habitat 

model (Duke Model Version 11) that the 

LMA 1 Restricted Area was based on 

projects a higher density of whales in 

this area throughout October to January. 

Like some commenters, given the lack of 

recent systematic surveys in this area, 

we were concerned that whales might 

not be using this area after they shifted 

distributions in the last decade. The 

glider data validated that right whales 

are still in LMA 1 during the season 

predicted by the Duke Whale Habitat 

Model (Version 11). 

The commenter notes that only 27 

percent of reported positions from 

deployed acoustic gliders were inside 

the LMA 1 Seasonal Restricted Area and 

season. The glider data supports the 

Duke whale habitat model (Version 11), 

which estimates higher whale densities 

on the LMA 3 side of the LMA boundary 

than the LMA 1 side. The glider data 

does, however, validate that whales are 

still in this area seasonally. Gear density 

on the LMA 3 side is much lower than 

on the LMA 1 side. We initially assessed 

a restricted area that included both sides 

of the boundary, but determined that 

there was minimal benefit from the 

LMA 3 side. LMA 3 vessels are adopting 

trawling up and weak line measures that 

provide greater risk reduction, so the 

restricted area does not include the 

LMA 3 side of the boundary. 

During the comment period, we 

received information that we had 

underestimated the number of vessels 

that would be affected by the LMA 1 

Restricted Area. In our revised analysis, 

we considered that in conjunction with 

the fact that there are only about 75 

LMA 3-permitted vessels. LMA 3 

vessels have higher rates of vessel trip 

reporting, which contributes to our 

estimates of gear distribution. However, 

because we also received anecdotal 

reports of higher gear densities on the 

LMA 3 side than our data indicate, we 

are investigating whether LMA 1 

permitted vessels are inaccurately 

reporting location, or whether we are we 

are underestimating gear density and 

entanglement threat on the LMA 3 side. 

We have modified our analysis of the 

value of the LMA 1 Seasonal Restricted 

Area in the FEIS. See Chapters 3 and 5. 

Comment 9.17: NMFS should add 

restricted areas in LMA 3, as a huge 

majority of the boats there already fish 

51998 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

45 pot trawls or longer, and the 

proposed regulations will have little 

effect on reducing the risk posed by 

fishing in LMA 3. 

Response: Alternative 3 analyzed 

restricted areas in offshore waters of 

LMA 3. The final rule does not 

implement restricted areas in LMA 3, 

and instead requires a combination of 

trawling up and weak rope 

requirements. Some areas originally 

considered for seasonal closures to buoy 

lines in LMA 3 were difficult to create 

without just shifting the risk (see cooccurrence maps in Chapter 5 of the 

FEIS). Broad line reduction and weak 

rope requirements achieved associated 

risk reduction without incidentally 

increasing co-occurrence with right 

whales within this area. Contrary to the 

comment, the average baseline gear 

configuration according to the line 

model in the DST is 35 traps per trawl, 

so requiring a minimum of 45 traps per 

trawl is predicted to reduce lines in this 

area. The new preferred alternative 

offers a conservation equivalency that 

would result in an average of 44 traps 

on a trawl, but with longer trawl lengths 

occurring in areas of high whale 

density, thus offering slightly greater 

risk reduction for LMA 3. 

Comment 9.18: The Massachusetts 

Bay Restricted Area should be 

expanded. 

Response: The final rule would 

expand the restricted area to include 

state waters to the Massachusetts/New 

Hampshire line, mirroring the 

regulations implemented by 

Massachusetts Division of Marine 

Fisheries in the Code of Massachusetts 

Regulations, Title 322 Section 12. 

Comment 9.19: We ask NMFS to 

expand its proposed trigger of three 

right whales to extend the 

Massachusetts Bay Restricted Area to 

include a cow/calf as a trigger, in 

addition to three right whales. 

Response: The final rule does not 

include a dynamic opening mechanism 

or trigger for the Massachusetts Bay 

Restricted Area. 

Comment 9.20: Seasonal restricted 

areas should be re-evaluated as a 

management measure once the 

commercial fishery transitions to 

ropeless fishing systems. 

Response: We anticipate that the 

ALWTRT will consider the 

appropriateness of existing and new 

seasonal management areas at meetings 

annually within the context of the best 

available information on large whale 

distribution, abundance, mortality, birth 

rates, and population metrics. Should 

ropeless fishing develop as an 

operationally feasible alternative to 

closures, that will also be evaluated. 

Comment 9.21: What is the risk 

reduction value to other large whale 

species of the South Island restricted 

area? 

Response: The South Island Restricted 

Area was designed to reduce cooccurrence and associated risk of 

entanglement to right whales and is not 

a hot spot for other species. For the 

FEIS, new analyses conducted by the 

NMFS Decision Support Tool team 

evaluated the amount of humpback and 

fin whale co-occurrence reduction in 

the expanded South Island Restricted 

Area. These analyses found that, though 

these species may occur within this area 

and indirectly benefit from a reduction 

in buoy lines, this buoy line closure 

does not measurably reduce cooccurrence and the associated overall 

entanglement risk for humpback whales 

or fin whales within the Northeast Trap/ 

Pot Management Region. 

Comment 9.22: NMFS should 

establish a larger restricted area south of 

Nantucket, which has become 

recognized as an important winter 

habitat for right whales. 

Response: The final rule implements 

the larger South Island Restricted Area, 

which had been analyzed in Alternative 

3 (Non-preferred) in the DEIS. See FEIS 

Chapter 3 for the South Island 

Restricted Area selected for 

implementation. 

Comment 9.23: The South Island 

Restricted Area should be closed yearround, as NMFS has confirmed that the 

area south of the islands is a year-round 

habitat for the species. 

Response: The monthly risk scores 

within the South Island Restricted Area 

are shown in the table below. The risk 

within this specific area is estimated to 

be very low between June and 

November. A year-round closure is not 

supported by this data. The closure is 

being implemented when the risk level 

and predicted whale density are the 

highest. 

TABLE 6—SOUTH ISLAND RESTRICTED

AREA MONTHLY RISK SCORES

Month Default risk Right whale 

habitat density 

1 ................ 4.12 83.85 

2 ................ 3.54 87.82 

3 ................ 3.25 92.54 

4 ................ 3.68 104.14 

5 ................ 1.32 47.87 

6 ................ 0.19 4.54 

7 ................ 0.03 0.61 

8 ................ 0.02 0.5 

9 ................ 0.03 0.67 

10 .............. 0.08 1.4 

11 .............. 0.38 8.4 

12 .............. 1.95 45.39 

Comment 9.24: Because right whales 

use the South Island area year-round, 

NMFS should require only one buoy 

line between May and October to reduce 

risk of entanglement in this heavy 

offshore gear. 

Response: The use of one buoy line on 

long trawls in areas of high mobile gear 

fishing effort would likely increase gear 

conflicts until technology becomes 

available that allows surface detection 

of bottom gear. Work on this challenge 

is currently being conducted to support 

the development of ropeless fishing 

methods, including a collaboration with 

mobile gear fishermen to assess bottom 

gear marking technology. These efforts 

could make this possible for future 

consideration as a risk reduction 

measure. 

Comment 9.25: NMFS has drastically 

underestimated the amount of 

fishermen actively fishing in the LMA 1 

restricted area, and thus the effects of 

the restricted area on fishermen. If there 

are only 45 fishermen in the LMA 1 

restricted area, the risk reduction value 

of the closure should be much lower, 

since that would mean there aren’t 

many buoy lines in that area. 

Response: Based on the comments we 

received from Maine fishermen saying 

that we had underestimated the number 

of fishermen in LMA 1, we have 

modified our economic analysis of the 

impacts of the LMA 1 seasonal 

restricted area. Fishermen fishing in the 

fishing zones that are bisected by the 

LMA 1 restricted area are not all 

required to submit vessel trip reports, 

making a precise count of affected 

vessels difficult. Based on fishermen’s 

input, the evaluation, which can be 

found in FEIS Section 6.3, now assumes 

that up to 50 percent of the vessels that 

fish outside of 12 nm in Maine Zones 

C, D, and E, up to 60 vessels, may have 

landings from the restricted area. The 

other half of the vessels may be crowded 

by the vessels that move from the 

restricted area into the waters 12 nm 

offshore of Maine Zones C, D, and E, 

reducing their catch rates. As a result, 

our estimate of vessels that may be 

affected by the LMA 1 Restricted Area 

has been increased to 120 in the FEIS. 

See FEIS Section 6.3. 

Estimated buoy line numbers are only 

one component of the risk estimated for 

the LMA 1 Seasonal Restricted Area. 

Three factors are considered: Whale 

density, gear density, and threat of the 

configuration of gear used in an area. 

Those were sufficient to identify this 

area as a hotspot, as described further in 

FEIS Section 3.1.2.4. 

Comment 9.26: If NMFS closes an 

area during the summer, the available 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51999 

fishing window would be cut by 40 to 

50 percent. 

Response: There are no summer 

restricted areas in this final rule. For 

analysis of the restricted areas being 

implemented in this final rule, see FEIS 

Section 1.4.3. 

Comment 9.27: NMFS should require 

that fishing vessels operate at less than 

10 knots under EFPs in restricted areas, 

regardless of their vessel length. 

Response: Vessel speed restrictions 

are likely to be included as a condition 

of EFPs for activities in seasonally 

restricted areas. Evidence suggests that 

10 knot speed restrictions within areas 

of large whale occurrence have 

successfully mitigated vessel strikes 

(Laist et al. 2014). Fishing vessels 

actively fishing either operate at 

relatively slow speeds, drift, or remain 

idle when setting, soaking and hauling 

gear. Listed species in the path of a 

fishing vessel would be more likely to 

have time to move away before being 

struck. However, fishing vessels 

transiting to and from port or between 

fishing areas can travel at greater speeds 

and could strike a right whale or other 

vulnerable species. A 10-knot transit 

requirement for fishing vessels 

authorized to harvest lobster from 

seasonally restricted areas is merited as 

these areas are seasonally important to 

right whales. 

Comment 9.28: Closures in offshore 

areas would also minimize the impact 

on fishermen, because the majority of 

lobster fishing occurs closer to shore. 

Response: For an explanation for how 

seasonal restricted areas were selected, 

see FEIS Section 3.1.2.4 and for a 

description of the number vessels 

impacted and the economic impacts by 

seasonal restricted areas considered in 

the preferred and non-preferred 

alternatives, see FEIS Section 6.3. 

10. Ropeless Technology 

We received thousands of comments, 

including the majority of campaign 

comments, on ropeless fishing, with the 

vast majority of non-fishermen 

supporting an immediate transition to 

ropeless gear throughout the northeast 

lobster and Jonah crab trap/pot fishery, 

and the majority of fishermen opposing 

ropeless fishing on the grounds that it 

is expensive, unproven, and impractical 

for a variety of reasons. While ropeless 

technology is not required in the final 

rule, fishermen who wish to try ropeless 

fishing may apply for an EFP, and will 

be able to fish in the restricted areas to 

test the technology. 

Comment 10.1: NMFS should 

promote the permitting process and 

make sure that all fishermen are aware 

of and have the opportunity to 

participate in EFP trials of ropeless gear. 

Response: An EFP is a permit issued 

by NMFS’ Greater Atlantic Regional 

Fisheries Office. EFPs authorize a vessel 

to conduct fishing activities that would 

otherwise be prohibited under the 

regulations at 50 CFR part 648 or part 

697. Generally, EFPs are issued for 

activities in support of fisheries-related 

research, including landing undersized 

fish or fish in excess of a possession 

limit for research purposes, seafood 

product development and/or market 

research, compensation fishing, the 

collection of fish for public display, or 

in this case, testing various aspects of 

ropeless gear. Anyone that intends to 

engage in an activity that would be 

prohibited under these regulations (with 

the exception of scientific research on a 

scientific research vessel, and exempted 

educational activities) is required to 

obtain an EFP prior to commencing the 

activity. While NMFS believes that 

ropeless gear should be widely tested by 

vessels under varying operating 

conditions, researchers submitting the 

EFP requests will be responsible for 

soliciting and securing participants. 

Comment 10.2: Many fishermen had 

questions and concerns about the 

feasibility of ropeless fishing. Fishermen 

were concerned about whether ropeless 

technology could work in areas subject 

to different tides, on different bottoms, 

and in different weather conditions. 

Others raised concerns about conflicts 

with bottom-tending mobile gear, 

conflicts with other ropeless traps/pot 

gear, a reported 80 percent retrieval rate, 

an increase in lost gear, which leads to 

ghost gear, and the need for a marking 

system. Still others were concerned that 

ropeless technology is not ready to be 

implemented, and would take too long 

to implement. Concerns about repairs, 

enforcement, expense, and safety 

hazards were also raised. 

Response: We acknowledge that 

considering broad scale deployment of 

ropeless fishing requires additional 

planning and research to overcome 

obstacles to implementation. This 

would include many of the potential 

issues identified within these 

comments. However, technologies are 

developing to enable fishermen to 

increase the rate of successful retrieval 

of ropeless gear and to minimize gear 

conflicts and increase enforceability 

over time. NMFS has invested a 

substantial amount of funding in the 

industry’s development of ropeless 

fishing gear. We anticipate that these 

efforts to facilitate and support the 

industry’s development of ropeless gear 

will continue, pending appropriations, 

including cooperative research and field 

trials, economic analyses and cost 

projection, and policy implementation, 

among the many factors that require 

consideration and further study. 

Comment 10.3: NMFS should offer 

buybacks or subsidies for fishermen 

unable to transition to ropeless gear. 

Response: Section 312(b) of the MSA 

establishes the mechanism for NMFS to 

conduct a buyback or fishing capacity 

reduction program. It requires funding 

appropriations from Congress and a 

determination that the program is 

necessary to prevent or end overfishing, 

rebuild stocks of fish, or achieve 

measurable or significant improvements 

in the conservation and management of 

the fishery. 

Comment 10.4: NMFS did not analyze 

the costs or effects of conflicts between 

ropeless gear and bottom-tending 

mobile gear, or the effects of ropelessonly fishing areas on mobile gear 

fisheries, some of which significantly 

overlap with prime scallop grounds. 

Response: NMFS agrees that this 

would be useful information to analyze 

but was unable to provide a specific cost 

estimate in the FEIS. We have modified 

our discussion of the effects of gear 

conflicts associated with ropeless gear. 

See FEIS Section 3.3.3. 

Comment 10.5: NMFS needs to invest 

in the technology to make it viable, 

which should include working with 

manufacturers to develop virtual gear 

marking systems and to tailor the 

devices to the needs of fishermen in 

different areas. 

Response: NMFS has invested a 

substantial amount of funding in the 

collaborative development of ropeless 

fishing gear. Virtual gear marking 

systems are being tested by mobile and 

fixed gear fishermen and we anticipated 

that these efforts will continue, pending 

appropriations. 

Comment 10.6: Ropeless gear 

regulations will be difficult to 

impossible to enforce. 

Response: Currently ropeless fishing 

is conducted under EFPs or state 

authorizations to exempt fishermen 

from the fishery management 

regulations that require the use of buoy 

lines to notify mariners of the presence 

of fixed fishing gear. Conditions of 

authorization include notification of 

effort, monitoring and reporting. If a 

permittee does not abide by the terms of 

the permit, the permittee will be subject 

to enforcement action. As data is 

collected throughout the EFP process for 

ropeless gear, law enforcement has the 

opportunity to review that data. Lessons 

learned from ropeless testing will be 

incorporated into an enforcement 

strategy in the event that ropeless 

52000 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

technology is authorized for use in the 

fishery. 

Comment 10.7: For ropeless fishing to 

work, we will need a new trap 

allocation system. There are too many 

traps in the water for ropeless to work. 

Response: We recognize that 

feasibility in terms of both affordability 

and effective avoidance of gear conflicts 

will be most challenging in areas of 

dense fishing effort. A number of 

studies have demonstrated that effort 

reduction could be done without 

substantial economic impacts, see for 

example, Myers and Moore (2020) and 

Acheson (2013). Commenters including 

fishermen have suggested that a 

reduction in traps would provide fast 

and effective risk reduction. Less rope 

might ameliorate the need for further 

measures in some areas, and would 

reduce the cost of any future broadscale 

implementation of ropeless fishing. 

Comment 10.8: NMFS received 

several comments on space-sharing to 

address potential gear conflicts 

associated with ropeless gear. One 

commenter suggested that NMFS should 

not require trap fishermen and mobile 

gear fishermen to undertake spacesharing negotiations themselves. The 

other commenter suggested the use of 

seasonal areas for different gear types. 

Response: If broad adoption of 

ropeless fishing methods is considered 

and area management is deemed 

essential for success in preventing gear 

conflicts, NMFS anticipates that 

engagement and collaboration with the 

fishery management councils and 

commissions would be required to 

successfully design and implement any 

area-based management following 

fishery management public processes. 

This is well beyond the scope of what 

is being implemented by this rule. 

Comment 10.9: NMFS should fasttrack and simplify permitting to make 

ropeless fishing an easier option for 

fishermen. 

Response: The provisions within this 

rule expand fishermen’s options and 

provide incentives to fish with ropeless 

gear in an area otherwise restricted 

under the ALWTRP. The NMFS Greater 

Atlantic Region Fisheries Office is 

considering conducting an 

Environmental Assessment (EA) 

identifying and analyzing ropeless 

fishing under EFPs, including measures 

to minimize environmental impacts. 

The EA would facilitate development of 

EFP requests and reduce the need of the 

applicant for separate environmental 

analysis, expediting the EFP process 

substantially. The Northeast Fisheries 

Science Center has developed a ‘‘gear 

library’’ for collaborating fishermen to 

access ropeless gear and virtual gear 

marking technology. We expect to 

continue to learn about the feasibility of 

ropeless gear on a broader scale as more 

fishermen take advantage of the 

opportunity to try ropeless. If 

operational challenges including surface 

markings are overcome, NMFS would 

work with the Council to determine if 

fishery management regulations could 

be modified to not require buoy lines, 

allowing ropeless fishing without an 

EFP. 

Comment 10.10: NMFS should 

develop a comprehensive roadmap for 

fishermen to permanently transition to 

ropeless gear so that they can continue 

to fish without endangering right 

whales. Relying on EFPs is not a longterm solution. 

Response: NMFS is currently 

developing a ‘‘Roadmap to Ropeless 

Fishing’’ comprehensive plan to 

document the agency’s approach to 

researching and testing ropeless gear. 

This plan will also include economic 

analyses and potential policy pathways 

of ropeless fishing, along with 

identifying partners and establishing 

short and long-term goals for ropeless 

research and development 

Comment 10.11: For ropeless to work, 

there needs to be a single universal 

platform for all devices, so that all 

fishermen may see other’s gear and 

locate their own. 

Response: Ropeless gear and the 

technologies enabling it have evolved 

rapidly in recent years. If ropeless 

fishing continues to develop, other 

technologies platforms such as those to 

view the location of set ropeless gear 

and to prevent gear conflicts and 

facilitate law enforcement, will need to 

develop concurrently. 

Comment 10.12: NMFS should 

establish additional ropeless restricted 

offshore areas, and require the offshore 

fishery to transition to ropeless gear 

within three years. 

Response: We will continue to 

evaluate the latest population 

abundance, mortality and serious injury, 

and PBR estimates calculated for large 

whales to inform the risk reduction 

targets that we provide to the ALWTRT. 

As we work to reduce lethal 

entanglement risk as required by the 

MMPA, we will continue to convene the 

Team to analyze the latest data and to 

make recommendations to us as to how 

best to fulfill these goals. 

Comment 10.13: Due to the high 

incidence of right whales in Cape Cod 

Bay from February to May, we 

recommend that NMFS not permit 

testing of ropeless fishing systems 

during these times. 

Response: We recognize that in some 

areas at some times, like Cape Cod Bay 

in late winter/early spring, any 

additional risk to right whales 

(increased vessel traffic, etc.) may be 

unacceptable. These risks may be 

evaluated and avoided or mitigated on 

an individual basis as applicants seek 

EFPs for ropeless experimentation 

within ALWTRP restricted areas. 

Comment 10.14: There is no way to 

implement ropeless in the gray zone, 

where Canadians are also setting their 

gear. 

Response: The rule does not require 

ropeless fishing in the gray zone or 

anywhere else. 

Comment 10.15: Ropeless fishing will 

still put thousands of end lines in the 

water column, but without tension on 

them, posing a greater risk for all marine 

mammals and boaters. 

Response: Ropeless fishing as it is 

currently being tested would only result 

in buoy lines in the water column when 

a fishing vessel is on site to retrieve the 

trawl. While we agree that 

operationalization of a ropeless fishery 

will require much more planning and 

evaluation in the future, ropeless 

vertical lines would spend a 

significantly lower proportion of time in 

the water column than a traditional 

fixed vertical line with a surface buoy. 

This would significantly lower exposure 

to marine mammals and therefore 

significantly lower entanglement risk. 

Comment 10.16: NMFS erred in 

asserting that ropeless gear should be 

considered ‘‘neutral risk’’ as sinking 

groundline may still pose a risk to large 

whales. While ropeless gear is not 

expected to be widely used in the 

immediate future, technology may 

advance to make it more feasible, and so 

NMFS should re-evaluate the risk posed 

by the gear. 

Response: To date, evidence of 

sinking groundline in large whale 

entanglements is limited, though we 

continue to investigate as the scarce 

data and opportunities allow. The 

discussion in the FEIS was modified per 

comments about possible addition of 

risk in areas where none currently 

occurs in existing closed areas. The 

qualitative discussion of risk including 

anticipated conditions while ropeless 

fishing is developed is summarized in 

the FEIS Section 5.3.1.1.2.1.2. 

11. Stressors on Right Whales 

Dozens of commenters suggested a 

variety of factors that may be 

contributing to right whale decline, with 

many fishermen pointing to other 

known and possible causes of mortality. 

These commenters stated or suggested 

that this regulation will not contribute 

to the recovery of right whales due to 

issues beyond the scope of this 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52001 

rulemaking. Among the issues raised are 

climate change, disease, pollution, 

inbreeding/small population size, 

previous entanglements, sonar, noise, 

oil spills, plastic pollution, shark 

predation on calves, vessel strikes, and 

offshore wind. The final rule and 

analyses in the FEIS are related to 

amendments to the Plan. The Plan and 

the take reduction process are restricted 

to monitoring and mitigating incidental 

mortality and serious injury of marine 

mammals incidental to particular U.S. 

commercial fisheries. The majority of 

these issues are outside the scope of this 

regulation, and many are beyond the 

authority of the NMFS but given the 

frequency with which these issues were 

introduced, we have provided some 

answers below. 

Comment 11.1: Climate change/global 

warming is primarily to blame for the 

decline of right whales, and it has 

nothing to do with fishermen. 

Response: The effects of climate 

change may have led to a shift in the 

distribution of right whales sometime 

between 2010 to 2013. This distribution 

shift increasingly brought right whales 

into areas of greater risk from human 

activities, including fishing. 

Entanglement in fishing gear is one of 

the primary causes of serious injury and 

mortality in right whales. See FEIS 

Section 1.1 for an overview. 

Comment 11.2: Since the right whales 

have found their food sources in the 

Gulf of St. Lawrence, they are thriving 

again and this rulemaking is 

unnecessary. 

Response: NMFS disagrees. Since the 

population started regularly using the 

Gulf of St. Lawrence, the population has 

declined by 23 percent overall, and 

roughly 200 right whales have died, 

many of them outside the Gulf of St. 

Lawrence. Threats to right whales are 

spread across their range in U.S. and 

Canadian waters. 

The need to amend the ALWTRP is 

driven by the average reported mortality 

and serious injury to right whales due 

to fishery entanglement compared to 

PBR is 0.8 per year and, unfortunately, 

fishery entanglement-related mortality 

and serious injury is 5.55 whales per 

year (Hayes et al. 2020). Since fishery 

entanglement-induced mortality and 

serious injury exceeds PBR, this rule is 

necessary. 

Comment 11.3: NMFS should 

consider the effects of disease and 

increased pollution on right whales. 

Response: NMFS agrees. In NMFS’ 

Species in the Spotlight North Atlantic 

right whale five-year action plan, one of 

the five priorities identified for the next 

five years to halt the decline of this 

species is to ‘‘Investigate North Atlantic 

Right Whale Population Abundance, 

Status, Distribution and Health.’’ NMFS 

also convened a 2019 Health 

Assessment Workshop to help evaluate 

current health information data, 

including associated data gaps, and 

identified appropriate available and 

needed tools and techniques for 

collecting standardized health data that 

can be used to understand health effects 

of environmental and human impacts, 

and inform fecundity and survivorship 

models to ultimately guide right whale 

recovery (Fauquier et al. 2020). The 

Species in the Spotlight North Atlantic 

right whale five-year action plan is 

available online at 

www.fisheries.noaa.gov/resource/ 

document/species-spotlight-priorityactions-2021-2025-north-atlantic-rightwhale. Please see Chapter 8 of the FEIS, 

which has a summary of Cumulative 

Effects. 

Comment 11.4: Right whales are 

suffering from inbreeding, and will 

never be able to have a viable 

population again, so there is no point to 

these regulations. 

Response: Small population sizes may 

carry some greater risk of inbreeding as 

a potential limiting factor to recovery, 

however, there is evidence that natural 

populations have mechanisms to reduce 

the loss of genetic diversity (Frasier et 

al. 2013). Additionally, the North 

Atlantic right whale population has 

continued to produce healthy whales 

despite the relative low level of genetic 

variability when compared to other 

large whales, a condition that has 

apparently been sustained since the 

16th century (McLeod et al. 2009). 

Numerous mammalian species have 

recovered from much smaller 

population sizes than the North Atlantic 

Right whale population, including 

Northern Elephant seals and gray seals 

in New England. Many of the great 

whale populations were decimated by 

the end of commercial whaling and 

most have recovered. Despite being 

reduced to about 260 right whales alive 

in 1990, North Atlantic right whales 

were genetically sound enough to 

recover, albeit slowly due to persistent 

human impacts, until peaking at 481 

individuals in 2010. After 2010, the 

change in habitat use that involved 

more regular excursion into areas where 

management protections were not in 

place. This resulted in increased 

human-caused mortality and additional 

stresses, including both environmental 

food limitations and increased nonlethal entanglement. Together these 

stressors are likely contributing to 

documented reduced caving rates. 

While inbreeding could play a negative 

role here, there is little evidence to 

support that theory. After accounting for 

human-caused mortality, the 1990–2010 

calving rates and population growth 

rates were well within normal cetacean 

population demographic rate. The 

changes in those rates since 2010 may 

be driven by increased anthropogenic 

mortality and climate change. 

Comment 11.5: After vessel strikes, 

industrial sonar and ocean noise are the 

greatest threats to right whales. Has 

there been any research on the effects of 

Naval use of sonar in training, and the 

effects of ocean noise generally, on the 

increase or decrease in entanglements? 

Response: We are not aware of any 

studies evaluating the correlation 

between ocean noise and rates of 

entanglement in fishing gear. However, 

given that right whales are not detecting 

fishing gear acoustically, it would seem 

highly unlikely that ocean noise levels 

would directly affect or have any 

relationship to entanglement rates. 

Furthermore, while increases in ocean 

noise is of concern for the 

communication ability for right whales 

and many other species, these effects are 

generally ‘‘sub-lethal,’’ whereas 

entanglement in fishing gear can lead 

directly to serious injury and mortality. 

Comment 11.6: Did the 2010 BP 

Deepwater Horizon oil spill in the Gulf 

of Mexico or a change in food source 

affect right whale birth rates? 

Response: NMFS is not aware of any 

studies, data, or evidence that suggest 

right whales have been affected by the 

BP Deepwater Horizon oil spill. For 

information on factors that may affect 

birth rates, see Chapter 8 of the FEIS, 

which has a summary of Cumulative 

Effects. 

Comment 11.7: NMFS should 

consider the environmental impact of 

the consumption of additional plastic 

products this rule will require. 

Response: This rule is not likely to 

change the need for ropes or weak links 

made from plastic material. The final 

rule may temporarily increase the 

production of new inserts, which may 

have plastic components, but ultimately 

would decrease with the reduction of 

gear in the water. Please see Chapter 5 

and for a description of indirect effects, 

the likelihood of ghost gear, and 

frequency of gear replacement, as well 

as Chapter 8 for our Cumulative Effects 

Analysis. 

Comment 11.8: NMFS should 

consider the role of seismic testing in 

right whale population declines. 

Response: Seismic survey operators 

for oil and gas exploration require 

permits from the Bureau of Ocean 

Energy Management (BOEM). As part of 

issuing these permits, BOEM consults 

with NMFS under Section 7 of the ESA 

52002 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

to ensure the proposed action (i.e., the 

seismic surveys) does not jeopardize the 

continued existence of any ESA listed 

species, including North Atlantic right 

whales. Through this process, NMFS 

fully evaluates the potential impacts of 

seismic testing on the right whales (e.g., 

Biological Opinion on the Bureau of 

Ocean Energy Management’s Issuance of 

Five Oil and Gas Permits for Geological 

and Geophysical Seismic Surveys off 

the Atlantic Coast of the United States, 

and the NMFS’ Issuance of Associated 

Incidental Harassment Authorizations at 

https://repository.library.noaa.gov/view/ 

noaa/19552). Seismic surveys for other 

purposes such as those conducted by 

the National Science Foundation or the 

United States Geological Survey for 

research purposes also require the same 

type of consideration under Section 7 of 

the ESA (e.g., Biological Opinion on a 

National Science Foundation-funded 

seismic survey by the Scripps 

Institution of Oceanography in the 

South Atlantic Ocean, and Issuance of 

an Incidental Harassment Authorization 

pursuant to section 101(a)(5)(D) of the 

Marine Mammal Protection Act by the 

Permits and Conservation Division, 

National Marine Fisheries Service at 

https://repository.library.noaa.gov/view/ 

noaa/22585). Finally, any take of marine 

mammals that is likely to occur as a 

result of these seismic surveys requires 

authorization under the MMPA (e.g., 

Incidental Take Authorization: Oil and 

Gas Industry Geophysical Survey 

Activity in the Atlantic Ocean at https:// 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oil-andgas-industry-geophysical-surveyactivity-atlantic), and as part of this 

authorization, NMFS also analyzes 

impacts to marine mammal population 

stocks, including right whales. 

Under both the MMPA and ESA, in 

authorizing take of marine mammals 

including right whales, NMFS requires 

mitigation and monitoring as well as 

terms and conditions to monitor and 

reduce the impacts from such take. 

However, it is important to note that 

there is no concrete evidence that 

seismic surveys are likely to have any 

population level effects on large baleen 

whales such as right whales. 

Furthermore, the impacts of seismic 

surveys on the vital rates (e.g., survival, 

reproduction, growth) of individual 

baleen whales are not well understood, 

but current evidence does not support 

that they cause serious injury, mortality, 

or lower reproduction. Finally, at 

present, and in the recent past, there is 

very little seismic survey activity in the 

U.S. Atlantic Ocean other than 

infrequent surveys conducted for 

scientific research purposes that 

typically use lower source level (i.e., 

quieter) airguns as compared to the 

louder oil and gas exploration surveys 

such as those in the Gulf of Mexico. 

In summary, NMFS does evaluate 

impacts from seismic surveys on right 

whales and while there have been and 

currently are few surveys being 

conducted, through the MMPA and ESA 

ensures that such surveys are not 

furthering the decline of the population. 

Comment 11.9: Many commenters 

voiced their concern that recent right 

whale mortalities and serious injuries 

were due to vessel strikes, and 

suggested that vessels should be a 

higher priority for NMFS than reducing 

entanglements in fishing gear. Several 

commenters pointed out that more right 

whale calves were born this year, a year 

in which the cruise ship industry was 

largely shut down due to the global 

pandemic, than in any recent years. 

Others raised concerns about mortalities 

and serious injuries caused by Naval, 

whale watch and shipping industry 

vessels. Many commenters favored 

expediting updated regulations on 

vessel speeds, including in shipping 

lanes. 

Response: Right whales are 

particularly vulnerable to vessel strikes 

due to their use of coastal habitats and 

frequent occurrence at near surface 

depths. Furthermore, they are 

vulnerable to strikes by nearly all types 

and sizes of vessels operating within the 

whales’ range. In 2008 (73 FR 60173, 

October 10, 2008), NMFS implemented 

regulations requiring most vessels equal 

to or greater than 65 feet in length to 

transit at speeds of 10 knots or less in 

designated Seasonal Management Areas 

(SMAs) along the U.S. East Coast. 

Concurrently, NMFS initiated a 

voluntary Dynamic Management Area 

(DMA) speed reduction program to 

provide additional protection for 

aggregations of right whales outside of 

active SMAs. To reduce the spatial/ 

temporal overlap of whales and vessel 

traffic NMFS established recommended 

routes for vessels transiting Cape Cod 

Bay and into/out of ports in northern 

Florida and Georgia, and modified the 

shipping lane approaching the port of 

Boston. 

In January 2021, NMFS released an 

assessment evaluating the conservation 

value and economic and navigational 

safety impacts of the speed rule (50 CFR 

224.105). While the assessment is 

considered final, we sought comments 

on the report findings through March 

26, 2021, as we evaluate the need for 

future action and modifications to the 

existing speed regulations. 

The report evaluates four aspects of 

the right whale vessel speed rule: 

Biological efficacy, mariner compliance, 

impacts to navigational safety, and 

economic cost to mariners. It also 

assesses general trends in vessel traffic 

characteristics within SMAs over time, 

provides a detailed assessment of the 

speed rule’s effectiveness and offers 

recommendations for strengthening the 

rule based on these findings. In addition 

to the assessment of the vessel speed 

rule, the report also evaluates mariner 

cooperation with the DMA program and 

investigates small vessel transit patterns 

through active SMAs. 

NMFS is evaluating whether further 

efforts are needed to minimize the 

spatial overlap of right whales and 

vessel traffic. Reducing the speed of 

vessels transiting through right whale 

habitat remains the most viable option 

to reduce vessel strikes in U.S. waters. 

The review and information collected 

during public comment will be used to 

consider whether current measures are 

appropriate given recent shifts in right 

whale distribution. For more 

information, please see Chapter 8 of the 

FEIS, which has a summary of 

Cumulative Effects. 

Comment 11.10: Many fishermen 

commented that they feared offshore 

wind energy projects would displace 

them, and questioned NMFS’ role in 

permitting offshore wind energy 

projects. 

Response: BOEM is the lead Federal 

agency and primary decision-maker for 

offshore wind development projects. 

NOAA works with BOEM and offshore 

wind developers to provide information 

and consultation on how offshore wind 

projects may affect endangered or 

threatened species, marine mammals, 

fisheries, marine habitats, and fishing 

communities. Each proposed project is 

evaluated individually, with 

opportunities for public input, which 

can be found on the BOEM website. 

NOAA’s engagement on offshore wind 

activities is limited to our authorities 

under the NEPA, the ESA, the MMPA, 

and the MSA. Further information on 

NOAA’s role in offshore wind 

development can be found on our 

website at fisheries.noaa.gov/newengland-mid-atlantic/science-data/ 

offshore-wind-energy-development-newengland-mid-atlantic-waters. 

12. Trawls 

Many of the campaign commenters as 

well as 38 of the unique commenters 

supported trawling up as a way to 

reduce the number of vertical lines in 

the water, while 52 unique commenters 

disagreed, saying that trawling up is 

may instead result in more severe 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52003 

entanglements and more danger to 

fishermen. Comments from NGOs and 

members of the public indicated 

concern about whether heavier trawl 

lines would increase the severity of 

entanglements. Fishermen voiced 

concerns about the specifics of trawling 

up requirements in particular areas. 

Several fishermen supported the option 

of splitting buoy lines, and having only 

one line on a trawl. Some fishermen 

were concerned that trawling up would 

have an impact on landings. 

Comment 12.1: A 50 percent vertical 

buoy line reduction mandate would 

harm smaller vessels and lead to 

consolidation of the fishery. 

Response: A 50 percent vertical line 

reduction is a measure in the nonpreferred alternative, and is not be 

implemented under this final rule. See 

FEIS Chapter 2 for more details. 

Comment 12.2: Trawling up is 

expensive, and will put some fishermen 

out of business. 

Response: The final rule provides 

conservation equivalencies to provide 

more flexibility to fishermen. We expect 

these options to help fishermen choose 

the options that minimize their 

economic impacts. We understood from 

Maine DMR that the trawling up 

configurations developed through 

collaborations with Zone Councils were 

selected because fishermen could do 

them with minimal investment in time 

or new gear relative. 

Comment 12.3: What will the effects 

of trawling up be on landings? 

Response: The effects will depend on 

several factors, including the increase in 

the number of traps per trawl. For 

vessels trawling up fewer than 2 traps 

per set, we would expect to see a 

reduction rate of 0–5 percent on 

landings. For vessels trawling up 2 or 

more traps per set, we expect the 

landing reduction rate to be 5–10 

percent. See FEIS Chapter 6 for more 

details including a summary of the 

limited previous investigations into the 

impacts of trawling up on catch rates. 

Comment 12.4: NMFS should allow 

different trawls lengths depending on 

vessel sizes, vessel configurations 

(open/closed transom or equipment 

placement), distance from shore, and 

fishing depth. Several specific requests 

were submitted, such as four traps per 

trawl measure in New Hampshire 

waters, one buoy line along the northern 

edge of Georges Bank, and triples in the 

‘‘sliver’’ area. 

Response: The final rule establishes 

varying trawl lengths (traps per trawl), 

primarily by distance from shore. These 

are based on measures proposed by the 

ALWTRT, states, conservation 

equivalencies requested, and comments 

received during scoping and 

rulemaking. Configurations by distance 

from shore were considered likely to 

parallel vessel sizes, with smaller 

vessels operating closer to shore. 

Trawling up requirements by vessel size 

or configuration would be difficult to 

implement, enforce, and evaluate. 

Comment 12.5: NMFS should exempt 

waters from 50 fathoms (91 m) and 

deeper along the continental slope from 

trawling up. 

Response: The final rule implements 

a less restrictive trawling up 

requirement for vessels fishing in waters 

deeper than the 50 fathom curve south 

of Georges Bank (35 traps per trawl) 

than was initially proposed (45 traps/ 

trawl) in response to conservation 

equivalency requests from the Atlantic 

Offshore Lobster Fishermen’s 

Association. There is no information to 

suggest that right whales and other large 

whales are not entangled in waters 

deeper than 50 fathoms therefore an 

exemption from trawling up 

requirements without a concurrent line 

or risk reduction alternative would not 

provide sufficient risk reduction. 

Comment 12.6: NMFS should 

consider the 3 mile zones around 

Matinicus and Ragged Islands to be the 

same as other Maine coastal areas, and 

regulate them as such. 

Response: As noted below in this rule, 

there is an island buffer for this fishing 

in waters within 1⁄4 nautical miles of the 

following Maine islands are exempt 

from the minimum number of traps per 

trawl requirement in paragraph (c)(2)(iv) 

of this section: Monhegan Island, 

Matinicus Island Group (Metinic Island, 

Small Green Island, Large Green Island, 

Seal Island, Wooden Ball Island, 

Matinicus Island, Ragged Island), and 

Isles of Shoals Island Group (Duck 

Island, Appledore Island, Cedar Island, 

Smuttynose Island). 

Comment 12.6: The problem with 

using only one buoy line is that other 

fishermen won’t be able to tell where 

my gear is, more catch-downs, and 

losing the ability to haul in a certain 

direction because of the wind. 

Response: Area-specific allowances of 

up to ten traps per trawl with one buoy 

line was requested by Maine DMR, after 

discussion with the Zone Councils, as a 

conservation equivalency that would 

allow fishermen to fish shorter trawls 

while still reducing the number of buoy 

lines. Because this change is restricted 

to Maine Zones at the request of Zone 

Councils, it may reflect vessel capacity 

and current fishing practices. However, 

as occurs whenever measures are 

modified, there will be a transition 

period as fishermen adjust to new 

measures that the fishing community 

will likely work out relative to issues of 

gear placement and safety. 

Comment 12.7: Trawling up increases 

chances of gear conflicts due to longer 

lines. 

Response: The impact of minimum 

trawl length requirements on gear loss 

in trap/pot fisheries is difficult to 

predict with confidence. The 

uncertainty is largely attributable to the 

array of underlying factors responsible 

for gear loss. On the one hand, longer 

trawls may increase the likelihood that 

groundline will foul on bottom 

structure, increasing the potential for 

line to part while hauling traps. Longer 

trawls may also increase the potential 

for gear conflicts, particularly situations 

in which one fisherman’s gear is laid 

across another’s. This could be 

exacerbated by the Maine conservation 

equivalencies which will allow 

fishermen in some Maine Lobster Zones 

to fish trawls of up to 10 traps with only 

one buoy line. Overlain gear can cause 

one party to inadvertently sever 

another’s lines, making it impossible to 

retrieve all or some of the gear. A longer 

trawl also increases the consequences of 

such incidents; i.e., the more gear on a 

single trawl, the more gear is lost when 

that trawl is rendered irretrievable. 

In other ways, trawling requirements 

may reduce the potential for gear loss. 

The fundamental objective of longer 

trawls is to limit the number of buoy 

lines in the water column and reduce 

encounters with large whales; such 

encounters are one possible source of 

gear loss. Likewise, a decrease in the 

number of buoy lines may reduce the 

frequency with which gear is entangled 

in vessel propellers or mobile fishing 

gear. Furthermore, in areas where 

trawling up requirements necessitate 

addition of a second buoy line (e.g., for 

configurations greater than 20 traps or a 

vessel going from triples to ten-trap 

trawls), the second buoy line may make 

it easier to locate and retrieve gear when 

one buoy line is lost. Longer trawls are 

also heavier and may be less likely to be 

swept away during extreme storm or 

tidal events. For more, see FEIS Section 

6.2.6.1. 

Comment 12.8: NMFS should not 

leave it to fishermen to develop 

agreements between large and small 

boats to set trawl lengths that would 

meet an overall goal of line reduction, 

as this would be difficult to evaluate 

and enforce. 

Response: Agreed. The final rule does 

not implement any regulations based on 

boat length or size. 

Comment 12.9: Trawling up leads to 

longer, heavier lines that pose a greater 

risk to right whales, causing worse and 

heavier entanglements. 

52004 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

Response: While we recognize that 

the trawls will be longer, for many of 

the configurations, the portion of the 

trawl hanging in the water column and 

putting force on the hauling rope is 

based on water depth and distance 

between traps rather than wholly on 

trawl length and the configuration 

changes may not substantially change 

that. Many of the configurations adapted 

were proposed by fishermen during 

scoping and were proposed because 

they can be fished using existing rope 

and do not require a turnover in buoy 

lines currently being fished. Finally, 

every buoy line will be fished with 

weak insertions or weak rope. In a 2016 

study, Knowlton et al. showed evidence 

that 1,700 lb weak links within buoy 

lines or 1,700 lb weak line will allow 

whales to part the gear and reduce the 

likelihood of serious injury. Trawling 

up reduces the chance of an 

entanglement as fewer buoy lines will 

be present in the water column. The 

combination of these two measures will 

reduce the threat of mortality and 

serious injury of entanglement for large 

whales. 

Comment 12.10: Many fishermen 

voiced safety concerns about trawling 

up, including not having enough room 

on their vessel for 45 traps, that the 

increased weight of the vessel could 

lead to greater danger of capsizing in 

bad weather, and that longer lines may 

injure and entangle the crew. 

Response: Throughout the 

development of the final rule, we have 

taken safety considerations into account 

in identifying alternatives. Several 

proposed measures were rejected in 

whole or in part due to safety concerns. 

See Table 3.4. Conservation 

equivalencies adopted in the final rule 

better accommodate small scale fishing 

operations and traditional practices, 

considers fishing safety concerns, and 

requires less costly gear modifications. 

Comment 12.11: NMFS should 

require all trap/pot vessels be rigged for 

trawl nets or aluminum beam trawl type 

equipment, and cease to allow trap/pot 

gear with buoy lines. 

Response: NMFS does not have the 

authority under either the ACA or MSA 

to unilaterally require trawl gear in all 

fisheries. The ACA directs the Federal 

government to support the management 

efforts of the Commission and, to the 

extent the Federal government seeks to 

regulate a Commission species, develop 

regulations that are compatible with the 

Commission’s Interstate Fishery 

Management Plan and consistent with 

the MSA’s National Standards. The 

Commission’s Interstate Fishery 

Management Plans for lobster and Jonah 

crab specifically contemplate the use of 

trap/pot gear. NMFS would not have the 

authority to implement a requirement to 

prohibit trap/pot gear and require trawl 

gear without such a measure being 

incorporated into the Interstate Fishery 

Management Plan and recommended by 

the Commission. Similarly, the MSA 

charged regional fishery management 

councils with developing fishery 

management plans that meet the 

requirements of the Act. Under the 

MSA, the Secretary shall approve, 

disapprove, or partially approve a plan 

or management action developed by the 

Councils. Unless and until the MidAtlantic and New England fishery 

management councils modify gear 

requirements for their fishery 

management plans, NMFS is not 

authorized to take action under the 

MSA. 

Comment 12.12: NMFS should focus 

on keeping tension in buoy lines and 

reducing length between surface buoys 

to 3–4 feet (0.91–1.2 m) to reduce 

entanglements of all marine mammals. 

Response: Documentation from 

entanglements indicates that buoy lines 

and unknown lines represent the 

majority of interactions. Surface system 

direct interactions are rarely 

documented. 

Current industry practice and the 

ALWTRP already requires the use of 

sinking line on the top of buoy lines to 

reduce floating line at the surface. 

Under many conditions, fishermen also 

minimize scope in their buoy lines to 

prevent the lines from interacting with 

nearby set gear, although in areas of 

high tidal range and currents, more 

scope may be needed. 

The final rule reduces the possibility 

of entanglements by using a 

combination of closed areas, trawling up 

(less buoy lines in water column), weak 

line, weak insertions, and weak 

contrivances. 

13. Weak Rope/Links/Inserts 

More than 71 of the unique 

commenters supported the use of some 

form of weak rope to reduce the severity 

of right whale entanglements in fishing 

gear, while thousands of campaign 

comments and 144 unique commenters 

noted that weak rope may not reduce 

entanglement events and may still have 

detrimental effects on juveniles and 

calves, as well as cause sublethal effects 

to adults. Many fishermen are 

concerned that weak rope will result in 

gear loss, which will result in economic 

losses to them and increase the amount 

of ghost gear, which poses an 

entanglement risk to right whales. 

Comment 13.1: Many commenters 

had questions or concerns about weak 

link locations, configurations, and 

surface systems. 

Response: We received dozens of 

comments questioning the reasons for 

locations of the weak links/inserts, 

suggestions for other configurations of 

weak points, and the effectiveness of 

weak links/inserts, particularly the 600 

lb (272 kg) weak link, in reducing right 

whale entanglements. We also received 

dozens of suggestions for different 

options for weak links/inserts, including 

but not limited to, knots, time tension 

line cutters, loops and tucks, eye splices 

with sheep bends, and Novabraids. We 

received several suggestions regarding 

surface systems, with some commenters 

suggesting that they be eliminated, 

others wanting to keep them, and some 

asking for evidence that they are 

effective at reducing entanglement. 

For reasons specified in FEIS Section 

3.3.3, we removed the requirement for 

lobster and Jonah crab fishermen to 

connect their buoy to the buoy line 

using a weak link because the new 

measures require using weak rope or 

weak insertions in the buoy line. For 

our evaluation of surface system weak 

links, please see FEIS Section 3.3.3.1. 

Comment 13.2: Many commenters 

had questions or concerns about safety 

and economic loss related to weak 

inserts, link, or rope. Fishermen were 

particularly concerned that weak rope 

and weak inserts may result in injuries 

to fishermen and economic impacts due 

to lost gear. 

Response: Forces on lines hauling up 

lobster trawls were measured during 

commercial operations. Forces greater 

than 1,700 lb (771.1 kg) breaking 

strength were required to retrieve gear, 

particularly for trawls of 35 traps and 

more in waters greater than 50 fathoms 

(91.4 m) (Maine DMR 2020). Timed haul 

data indicated those higher forces were 

not detected on the line until well past 

halfway through hauling the buoy line 

(for example, Figure 7 in Maine 

proposal, Appendix 3.2). This suggests 

that under most operational conditions, 

weak rope or a weak insertion within 

the top half of a buoy line would not be 

subjected to forces approaching or 

greater than 1,700 lb (771.1 kg) during 

a haul. This is consistent with modeling 

work conducted by Knowlton et al. 

(2018) who demonstrated that 

operational changes in fishing practices 

to minimize speed and the amount of 

gear in the water column would further 

minimize rope tensions. In field work 

conducted by Knowlton et al. (2018), 

gear loss for buoy ropes using Novabraid 

sleeves inserted every 40 feet 

throughout the buoy lines fished in 

waters from 42 to 310 feet (12.8 to 94.5 

m) was not significantly different than 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52005 

gear loss using standard buoy lines. The 

final rule does not require the 

configuration studied by Knowlton et al. 

(2018), and while that means that the 

final configurations do not get the level 

of risk reduction that would be achieved 

through their experimental 

configuration, the measures reduce the 

likelihood that weak insertions will 

occur where forces may exceed the 

breaking strength of the rope. That 

compromise is intended to minimize 

safety risks to fishermen and economic 

impacts of increased gear loss. For more, 

see FEIS Section 3.3.3.2. 

Comment 13.3: Many commenters 

had questions or concerns about the 

effects of weak inserts and weak rope on 

right whales. 

Response: Conservationists voiced 

concerns that weak rope wouldn’t 

reduce the risk of entanglement, and 

would still cause sublethal effects to 

adults, and could cause lethal effects to 

juveniles and calves. There were also 

suggestions that weak rope will hamper 

disentanglement teams and could result 

in more right whale mortalities and 

serious injuries. Some commenters 

questioned our analysis of the spacing, 

particularly concerning why we elected 

to use weak insertions every 40 feet as 

equivalent to weak rope. 

We evaluated weak line relative to the 

findings of Knowlton et al. (2016), 

which documented that no ropes 

retrieved from entangled right whales of 

all ages had breaking strengths that were 

below 7.56 kN (1,700 lb). Knowlton et 

al. (2016) suggest that right whales can 

break free from these weaker ropes 

before a serious injury occurs. This is 

consistent with estimates of the force 

that large whales are capable of 

applying, based on axial locomotor 

muscle morphology study conducted by 

Arthur et al. (2015). The authors 

suggested that the maximum force 

output for a large right whale is likely 

sufficient to break line at that breaking 

strength. That study and others 

recognized that a whale’s ability to 

break free from an entanglement is also 

somewhat dependent on the complexity 

of the entanglement configuration (van 

der Hoop et al. 2017). 

The research available suggests that a 

full-length weak line provides the 

maximum precautionary benefit to 

whales (Knowlton et al. 2016, DeCew et 

al. 2017). However, when full weak rope 

is not readily available or when 

replacement of an entire buoy line is not 

feasible, weak links are also effective at 

reducing breaking strength. To evaluate 

the risk reduction benefit of weak rope 

alternatives, we compared the relative 

risk reduction achieved from a rope 

with one or two weak inserts at 

particular buoy line depths to a rope 

with inserts at regular intervals of 40 

feet. We selected 40 foot intervals based 

on the work of Knowlton et al. (2016 

and 2018) which was selected because 

it was within the range of a right 

whale’s girth and length, is within the 

range of rope length typically removed 

from entangled whales and was the 

configuration discussed most directly by 

the Team when considering weak rope. 

Spacing of every 40 feet provides the 

greatest benefit to whales, since 

entanglements can be very complex, and 

inserts every 40 feet provide the greatest 

likelihood that at least one weak point 

will be present on an entangled whale, 

allowing it to break the rope. Weak line 

models suggest that weak points will 

not necessarily benefit a whale that 

encounters the rope below the weak 

point, particularly with a heavy trawl. 

The lower the lowest weak insertions, 

the higher the potential for the rope to 

part (DeCew et al 2017). See Chapter 3 

for a more detailed description of the 

calculations of the proportional risk 

reduction estimated for inserts that were 

not at regular intervals, and how we 

determined the measures included in 

the final rule. 

We agree that there may be added or 

reduced risk reduction to whales 

depending on how weak insertions are 

configured. The greater the number of 

weak points on a line, the greater the 

likelihood that a weak point will be 

located below where the whale 

encounters the line, and that there will 

be a weak insertion outside of the 

mouth where the whale may have a 

better chance of breaking free from the 

entanglement. Configurations that are 

knot-free may also pose less risk. Gear 

that is knot-free, and/or free of 

attachments may be less likely to get 

caught in baleen if a mouth 

entanglement occurs, more likely to 

slide through the whale’s baleen 

without becoming lodged in the mouth 

or elsewhere, decreasing the risk of 

serious injury or mortality. However 

there is evidence that splices and knots 

introduce weaknesses into buoy lines. 

Lines undergoing breaking strength 

testing broke on the smaller or weaker 

side of a knot or splice (Maine DMR 

2020). 

We evaluate risk reduction under the 

assumption that weak rope is not zero 

risk to whales and that few insertions do 

not provide the risk reduction benefits 

of fully weak rope or weak rope with 

insertions every 40 feet. However, in 

concert with the other measures in the 

final rule, NMFS believes that it will 

achieve the required levels of risk 

reduction and applies a precautionary 

measure across the Northeast Region. 

For more on our analysis, see FEIS 

Section 3.3.4 and Appendix 3.1. 

Comment 13.4: Commenters indicated 

current buoy weak link requirements 

should be rescinded. Reasons included: 

To retain buoy to increase our ability to 

identify fishery and location of 

incidents, so buoy drag in concert with 

weak rope or weak inserts in buoy line 

can pull parted gear free from whales, 

to improve visibility to disentanglement 

teams. 

Response: The final rule rescinds 

buoy weak link requirements for 

Northeast Region lobster and Jonah crab 

buoy lines that require weak rope or 

weak inserts in the buoy line. See 

Chapter 3 of the FEIS for a discussion 

of this modification. 

Comment 13.5: The weak rope 

equipment suggested as an alternative in 

the Proposed Rule has not been proven 

to effectively reduce harm to right 

whales. In fact, many fishermen have 

stated that they will use more rope if the 

weak rope requirement is implemented, 

overall increasing the likelihood of 

entanglements. 

Response: For LMA 1 fishermen, the 

weak rope/weak insertion measures 

were proposed by Maine DMR after 

extensive outreach with Maine 

fishermen. The insertion locations are 

informed by research done by Maine 

DMR measuring at what point the forces 

on rope when trawls are hauled in 

exceed 1,700 lb (771.1 kg). Insertion 

locations were selected for placement in 

the buoy line above that point. 

Fishermen indicated a preference for a 

solution that would not require them to 

purchase additional rope, suggesting 

that most fishermen do not anticipate 

purchasing more rope other than the 

short lengths needed to create weak 

insertions, adding only a three to six 

feet to the amount of buoy line already 

fished. 

See FEIS Section 3.3.42, Knowlton et 

al. (2016) and Arthur et al. (2015) for 

evidence indicating large whales 

including right whales can break free of 

rope with breaking strengths below 1700 

lb, reducing opportunity for serious 

injury and mortality. 

14. Outside Scope 

As noted above, we received dozens 

of comments that were outside the 

scope of the current rulemaking. The 

final rule and analyses in the FEIS are 

related to amendments to the Plan. The 

Plan and the take reduction process are 

restricted to the monitoring and 

management of incidental mortality and 

serious injury of marine mammals in 

U.S. commercial fisheries. Because 

these comments were out of the scope 

of the final rule and the FEIS, we did 

52006 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

not provide responses in this document. 

A list of the out of scope comments 

appears below. 

1. NMFS or the states should institute 

a lobster and crab tax or other funding 

mechanism to make up for the economic 

deficit caused by the regulations. 

2. The Economic Impact Analysis 

produced by Nathan Associates 

incorrectly states that the Casco Bay 

Lines ferry to Long Island has 24 daily 

runs year round, casting doubt on 

NMFS’ entire economic analysis. 

3. We are concerned that the Agency’s 

broad assumptions may unnecessarily 

alarm industry members and their 

families. 

4. NMFS should monitor the travel 

routes of whales and enforce all 

regulations that might impact whales, 

such as ocean dumping. 

5. NMFS and states should work with 

manufacturers to produce ropes in a 

single color to match state requirements, 

which would reduce the difficulty of 

maintaining marks at the designated 

increments for fishermen moving to 

different depths. 

6. NMFS should use emergency action 

to close all high seas transport to allow 

right whales to recover. 

7. NMFS should not issue incidental 

take permits for right whales under the 

ESA. 

8. Several commenters submitted 

recommendations on gillnet and other 

mobile gear configurations, which are 

not the subject of this rule, but may be 

considered by the ALWTRT in the 

future. 

9. Expand and strengthen response 

networks comprising researchers, 

environmental organizations, industry 

groups and stakeholders, and 

government decision-makers to help 

manage the crisis and start rebuilding 

the population. 

10. The percentage of vertical lines 

proposed to be reduced (60 percent up 

to 98 percent) in the Biological Opinion 

was not derived based on any scientific 

findings. 

11. NMFS should study the effects of 

the rebounding white shark populations 

on the survival of right whale calves. 

Classification 

NMFS issues this final rule to amend 

the regulations implementing the 

Atlantic Large Whale Take Reduction 

Plan (Plan, ALWTRP). This rule revises 

the management measures for reducing 

the incidental mortality and serious 

injury to the North Atlantic right whale 

(Eubalaena glacialis), as well as to 

humpback (Megaptera novaeangliae) 

and fin whales (Balaenoptera physalus) 

in commercial trap/pot fisheries in the 

Northeast Trap/Pot Management Area 

(Northeast Region). The NMFS Assistant 

Administrator has determined that this 

rule is consistent with the Plan and the 

provisions of the MMPA, as well as the 

goals of the ESA, the Atlantic Coastal 

Fisheries Cooperative Management Act 

(ACFCMA), and other applicable law. 

NMFS prepared an FEIS for this rule. 

The Notice of Availability published in 

the Federal Register on July 2, 2021 (86 

FR 35286). Three alternatives, 

consisting of a ‘‘No Action’’ or status 

quo alternative (Alternative 1), one 

Preferred Alternative (Alternative 2) that 

is implemented by this rule, and one 

additional alternative (Alternative 3 or 

Non-preferred Alternative), were 

analyzed using the NMFS Decision 

Support Tool, described in detail in 

Chapter 5 of the FEIS. The biological 

impact analysis uses both quantitative 

(produced by the NMFS Decision 

Support Tool) and qualitative indicators 

to compare the regulatory alternatives 

against the 2017 conditions. Impacts on 

all large whales are analyzed, but the 

intention of this rulemaking is a 60 to 

80 percent risk reduction for right 

whales to reduce incidental 

entanglement mortality and serious 

injury to below the potential biological 

removal level of 0.8 mortalities and 

serious injuries a year. The analyses 

estimate percent reduction in the 

number of vertical buoy lines and 

reduction in co-occurrence between 

whales and buoy lines as proxies for 

reduced likelihood of encounter and 

entanglement. Mean line strength, and 

change in strength and associated gear 

threat of rope in buoy lines that are 

weakened, are estimated toward 

reduction of the likelihood of a serious 

injury or mortality in the event of an 

entanglement. The biological analysis 

estimates the risk reduction 

contributions of the measures that 

would require Plan modifications, as 

well as of ongoing risk reduction 

measures implemented by states and 

previous or imminent fishery 

management rules that reduce effort in 

the lobster fishery. Note that the 

economic analysis considers only the 

costs of the measures that would be 

implemented through the Federal 

rulemaking to amend the Plan. 

The ‘‘No Action’’ alternative 

(Alternative 1) would result in no 

changes to the current measures under 

the Plan. The rate of right whale 

mortality and serious injuries caused by 

incidental entanglement in U.S. 

commercial fisheries would continue to 

greatly exceed PBR. There would be no 

additional economic effects on the 

fishing industry. 

Alternative 2, the Preferred 

Alternative, is implemented in this final 

rule. It reduces the number of buoy lines 

fished in the Northeast Region lobster 

and Jonah trap/pot crab fisheries by 

increasing the minimum number of 

traps per trawl based on area fished and 

miles fished from shore in the Northeast 

Region. This alternative modifies 

existing restricted areas from seasonal 

fishing closures to seasonal closures to 

fishing with persistent buoy lines, 

expands the geographic extent of the 

Massachusetts Restricted Area (MRA) to 

include Massachusetts state waters 

north to the New Hampshire border, and 

establishes two new restricted areas that 

are seasonally closed to fishing for 

lobster or Jonah crab with persistent 

buoy lines. Alternative 2 requires buoy 

lines to be modified to incorporate rope 

engineered to break at no more than 

1,700 lb (771.1 kg) or weak insertion 

configurations that break at no more 

than 1,700 lb (771.1 kg). Finally, the 

rule requires additional marks on buoy 

lines to differentiate vertical buoy lines 

by principal port state, includes unique 

marks for Federal waters, and expands 

into areas previously exempt from gear 

marking. 

The Decision Support Tool estimates 

that Alternative 2 and this rule achieves 

a 69- to 73-percent risk reduction when 

the value of the current MRA is 

included, and a 60-percent risk 

reduction without the value of the 

current MRA. This risk reduction is 

achieved by an estimated seven percent 

reduction in the number of buoy lines 

that would be fished in the Northeast 

Region American lobster and Jonah crab 

fisheries, a 65-percent reduction in right 

whale and buoy line co-occurrence (54 

percent without including the value of 

the current MRA), and a weakening of 

each buoy rope in these fisheries for a 

nine percent reduction in mean line 

strength and a 17-percent reduction in 

gear threat. The first-year costs under 

Alternative 2 range from $9.8 million to 

$19.2 million, depending on 

implementation assumptions (e.g., buoy 

lines relocated versus buoy lines 

removed in seasonal restricted areas). 

Alternative 3, the Non-preferred 

Alternative, would reduce the number 

of buoy lines in Federal waters through 

the implementation of a buoy line cap 

allocated at 50 percent of the buoy lines 

fished in 2017. Like Alternative 2, this 

alternative would modify existing 

restricted areas (except the Outer Cape 

Cod LMA, which is closed for lobster 

management purposes) from seasonal 

fishing closures to seasonal closures to 

fishing with persistent buoy lines. 

Alternative Three would expand the 

geographic extent of the MRA to include 

Massachusetts state waters north to the 

New Hampshire border and extend the 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52007 

MRA closure season to include May, 

with a soft opening if surveys show that 

whales have left the area. Three new 

seasonal restricted areas would be 

established, including an LMA 1 

seasonal restricted area with the same 

boundaries as in the preferred 

alternative but with a one month 

extension, a seasonal restricted area in 

LMA 3 north of Georges Bank, and a 

South Island Restricted Area smaller 

than the one in the Preferred Alternative 

but extended through May. Finally, 

Alternative 3 would require a large 

visible mark on the surface system of 

each buoy line that would incorporate a 

tape that identifies the permit holder’s 

state and fishery. 

The Decision Support Tool estimates 

that Alternative 3 achieves a 72-percent 

risk reduction. This risk reduction is 

achieved by an estimated seven percent 

reduction in the number of buoy lines 

that would be fished in the Northeast 

Region American lobster and Jonah crab 

trap/pot fisheries, a 60-percent 

reduction in right whale and buoy line 

co-occurrence, and a weakening of each 

buoy rope in these fisheries for a 19- 

percent reduction in mean line strength 

and a 29-percent reduction in gear 

threat. The first-year costs under 

Alternative 3 range from $32.8 million 

to $44.6 million, depending on 

implementation assumptions (buoy 

lines relocated vs. buoy lines removed). 

On August/September XX, 2021, 

NMFS issued a Record of Decision 

identifying the selected alternative. A 

copy of the Record of Decision is 

available from NMFS (see ADDRESSES). 

This rule has been determined 

significant for the purposes of Executive 

Order 12866. 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 601–612, requires agencies to 

assess the economic impacts of their 

proposed regulations on small entities. 

The objective of the RFA is to consider 

the impacts of a rulemaking on small 

entities, and the capacity of those 

affected by regulations to bear the direct 

and indirect costs of regulation. We 

prepared a final regulatory flexibility 

analysis (FRFA) in support of this 

action, as required by section 604 of the 

RFA. The FRFA consists of the initial 

regulatory flexibility analysis (IRFA), a 

statement of the need for, and objectives 

of, the rule; a summary of the significant 

issues raised by the public comments in 

response to the IRFA, a statement of the 

assessment of the agency of such issues, 

and a statement of any changes made to 

the rule as a result of such comments; 

the response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration in response to the 

proposed rule, if any (none were 

received), and a detailed statement of 

any change made to the proposed rule 

in the final rule as a result of the 

comments; a description of and an 

estimate of the number of small entities 

to which the rule will apply or an 

explanation of why no such estimate is 

available; a description of the projected 

reporting, recordkeeping and other 

compliance requirements of the rule, 

including an estimate of the classes of 

small entities which will be subject to 

the requirement and the type of 

professional skills necessary for 

preparation of the report or record; a 

description of the steps the agency has 

taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes, including a 

statement of the factual, policy, and 

legal reasons for selecting the alternative 

adopted in the final rule and why each 

one of the other significant alternatives 

to the rule considered by the agency 

which affect the impact on small 

entities was rejected; a description of 

the steps the agency has taken to 

minimize any additional cost of credit 

for small entities, and; the agency shall 

make copies of the final regulatory 

flexibility analysis available to members 

of the public and shall publish in the 

Federal Register such analysis or a 

summary thereof. 

All of the documents that constitute 

the FRFA and a copy of the EIS/RIR/ 

FRFA are available upon request (see 

ADDRESSES) or via the internet at: 

Fisheries.NOAA.gov/ALWTRP. 

Information in the sections above 

(Background, Comments and Responses, 

and Changes From the Proposed Rule) 

summarize information found in the 

FRFA and will not be repeated here. 

Additional summary information from 

the FRFA follows. 

A Summary of the Significant Issues 

Raised by the Public in Response to the 

IRFA, a Summary of the Agency’s 

Assessment of Such Issues, and a 

Statement of Any Changes Made in the 

Final Rule as a Result of Such 

Comments 

After publication of the proposed rule 

and DEIS, we received over 1,300 

unique submissions and many 

submissions generated by nongovernmental organization campaigns 

including some submissions with 

multiple signatures representing over 

200,000 people. Three hundred and 

thirty six unique commenters identified 

themselves as fishermen, either directly 

or through context, of which 312 voiced 

opposition to all or part of the rule, 19 

commented on particular provisions, 

but did not expressly support or oppose, 

and 5 supported the general idea of the 

rule, though had specific comments on 

some measures. Of the ten fishing 

industry groups, eight opposed all or 

part of the rule, one gave specific 

recommendations, but did expressly 

support or oppose, and one supported 

the general idea of the rule. State and 

Federal legislators also commented, 

including some that opposed the rule or 

some provisions of the rule. Fifty four 

unique commenters that identified 

themselves as members of the public 

expressed opposition to the rule. A 

small number suggested that this rule 

should be withdrawn because it does 

not provide adequate levels of 

protection for right whales, and NMFS 

should start over. A little over 34 

percent of commenters opposed the rule 

in whole or in part, and about 4 percent 

suggested that the rule should be 

withdrawn because it does not provide 

adequate levels of protection for right 

whales, and NMFS should start over. 

Many commenters were concerned 

that these regulations would have a 

negative impact on the personal 

economics of fishermen, as well as the 

economies of their communities, their 

counties, and their state. Many 

commenters from Maine opposed the 

LMA 1 Seasonal Restricted Area due to 

economic impacts on their fishing 

operations, and recommended that if we 

did implement a seasonal closure to 

buoy lines there, we should establish a 

trigger of some sort, such as sightings of 

right whales, to close the area. 

Commenters opposing the rule 

expressed concerns about the safety of 

using more traps per trawl for their 

fishing operations and the safety of 

using weak buoy lines, as well as the 

potential for increased gear conflict and 

gear loss. Fishermen also wanted clarity 

and certainty in the regulations, and 

many wanted assurances that these 

regulations should be easy to 

understand, monitor, and enforce. 

There was also strong opposition to 

any suggestion that fishermen would be 

required to use ropeless technology, 

although neither the proposed nor final 

rule would mandate ropeless fishing. 

Commenters expressed concerns about 

the lack of detailed economic analysis of 

the use of ropeless technology and 

economic impacts on both trap/pot 

fisheries and mobile gear fisheries that 

are not currently Category I and II 

fisheries managed under the Take 

Reduction Plan. Finally, Maine DMR, 

Rhode Island Division of Marine 

Fisheries, Connecticut and New York 

Marine Fisheries Programs, the Atlantic 

Offshore Lobstermen’s Association, and 

other commenters requested 

52008 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

6We use terms affiliation, fishing business and 

entity interchangeably in this section. 

7 During the time period of our analysis (2017– 

2019), no specific permit was needed to fish for 

Jonah crab. Beginning on December 12, 2019, only 

vessels that have a federal American lobster trap or 

non-trap permit may retain Jonah crabs. 

modifications for the final rule to 

accommodate conservation 

equivalencies that would achieve the 

same risk reduction, but better reflect 

more localized fishing conditions or 

practices. 

Given the vast amount of industry 

input into the development of weak 

insertions, which would not require 

fishermen to replace buoy lines, and 

trawling up measures, many gear 

modifications implemented in this final 

rule were created to control costs. 

Additionally, a number of modifications 

to the rule were made in response to 

these comments, including: 

Rather than increase traps fished 

between buoy lines (trawling up) in 

southern New England’s Lobster 

Management Area (LMA) 2, the final 

rule requires additional weak insertions 

for vessels fishing throughout LMA 2. 

Analysis indicates this achieves 

improved risk reduction. This 

modification was requested in public 

comments submitted by Rhode Island 

fishermen and state managers as safer 

for Rhode Island vessels; 

The final rule implements 

conservation equivalency measures 

submitted by the Atlantic Offshore 

Lobstermen’s Association, 

recommending three trawling-up 

restricted areas where 50, 45, or 35 traps 

per trawl would be required rather than 

45 across the Northeast LMA 3 as 

conservation equivalencies that 

accommodate smaller vessels that fish 

south of Georges Bank. Those 

requirements were adopted in the final 

rule after analysis confirmed that the 

measures achieved similar risk 

reduction; 

The Maine Department of Marine 

Resources requested extensive 

modifications by Maine Lobster 

Management Zones based on their 

outreach to Maine Zone Councils. The 

changes modified the trawling up and 

weak insertion requirements. Most of 

the requested conservation 

equivalencies out to 12 miles were 

adopted in this final rule; 

The final rule implements a buoy line 

closure offshore of Maine in LMA 1 

from October through January. The 

proposed rule requested comments on 

not closing the area, or closing it after 

a trigger was reached, but no feasible 

trigger was offered and the closure is 

necessary to achieve sufficient risk 

reduction, and; 

The final rule removes a requirement 

for weak links at the buoy. This measure 

is not needed for buoy lines that now 

require weak rope or weak insertions. 

See chapter 1 section 1.6 of the FEIS 

for a full discussion of changes made to 

the final rule based on new information 

and comments received during the 

public comment period and see 

Comments and Responses or Chapter 1, 

Appendix 1.1, and Volume 3 of the FEIS 

for further details on comments on the 

DEIS and proposed rule. Those 

comments were aggregated across 

themes and our responses are not 

repeated here. All revisions and 

clarifications to the proposed rule, as 

well as the rationale for these revisions, 

are described in Chapter 1 of the FEIS 

and are not repeated here. 

Description and Estimate of the Number 

of Small Entities to Which the Rule 

Would Apply 

The RFA requires agencies to assure 

that decision makers consider 

disproportionate and/or significant 

adverse economic impacts of their 

proposed regulations on small entities. 

The Regulatory Flexibility Act Analysis 

determines whether the proposed action 

would have a significant economic 

impact on a substantial number of small 

entities. This section provides an 

assessment and discussion of the 

potential economic impacts of the 

proposed action, as required of the RFA. 

Section 3 of the Small Business Act 

defines affiliation as: Affiliation may 

arise among two or more persons with 

an identity of interest. Individuals or 

firms that have identical or substantially 

identical business or economic interests 

(such as family members, individuals or 

firms with common investments, or 

firms that are economically dependent 

through contractual or other 

relationships) may be treated as one 

party with such interests aggregated (13 

CFR 121.103(f)). These principles of 

affiliation allow for consideration of 

shared interest that does not necessarily 

require common ownership. However, 

data are not available to ascertain nonownership interest so we use an 

affiliated 6 vessel database created by 

the Social Sciences Branch (SSB) of the 

Northeast Fisheries Science Center. 

There are three major components of 

this dataset: Vessel affiliation 

information, landing values by species, 

and vessel permits. All Federal 

permitted vessels in the Northeast 

Region from 2017 to 2019 are included 

in this dataset where affiliation is 

determined by unique combinations of 

owners. 

The total number of directly regulated 

entities is based on permits held. Since 

the final rule would apply only to the 

lobster and Jonah crab trap/pot 

businesses 7 in LMA 1, LMA 2, LMA 3, 

and OCC, only entities that possess one 

or more of these permits are evaluated. 

Then for each affiliation, the revenues 

from all member vessels of the entity are 

summed into affiliation revenue in each 

year. On December 29, 2015, the NMFS 

issued a final rule establishing a small 

business size standard of $11 million in 

annual gross receipts for all businesses 

primarily engaged in the commercial 

fishing industry (NAICS 11411) for RFA 

compliance purposes only. The $11 

million standard became effective on 

July 1, 2016. Thus, the RFA defines a 

small business in the lobster fishery as 

a firm that is independently owned and 

operated with receipts of less than $11 

million annually. Based on this size 

standard, the three-year average (2017– 

2019) affiliation revenue is greater than 

$11 million, the fishing business is 

considered a large entity, otherwise it is 

a small entity. Then we determine the 

number of impacted entities by 

examining the landing values of lobster. 

If one or more members of the affiliation 

landed lobster in 2019, this business 

will be considered an impacted entity in 

our analysis. 

Regulated entities in this rulemaking 

include both entities with Federal 

lobster permits and lobster vessels that 

only fish in state managed waters except 

for the exempted areas in Maine. Using 

vessel data from Vertical Line Model 

developed by the Industrial Economics 

(see Appendix 5.1 of FEIS for 

documentation), we identify 1,913 

vessels that fished only in state waters 

outside Maine exempted areas. Due to 

the lack of owner and landing 

information of these vessels, we could 

not provide detailed analysis but have 

to assume all to be small entities. Using 

Federal permit data, there are 1,547 

distinct entities identified as directly 

regulated entities in this action, those 

that held lobster permits in LMA 1, 2, 

3, or OCC, or some combination. So all 

together, 3,460 entities are regulated 

under this action. Table 1 displays the 

details of regulated entities holding 

Federal permits. Of all 1,547 entities, 

only two of them are large. Within the 

1,545 small entities, 262 had no earned 

revenue from fishing activity even 

though they had a lobster permit. 

Because they had no revenue, they 

would be considered small by default. 

Among the 1,283 small entities with 

fishing revenue, 110 entities had no 

lobster landings. Therefore, 3,086 small 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52009 

entities would be considered as 

impacted small entities during this 

rulemaking. The average gross annual 

revenue for small entities with lobster 

landings was $287,000 in 2019, and 91.5 

percent of that is from lobsters. For 

small entities without lobster landings, 

their annual gross revenue was 

$135,000. The average revenue for all 

small entities was about $252,000. The 

revenue of large entities are not reported 

here for data confidentiality reasons. 

TABLE 7—THE NUMBER OF REGULATED ENTITIES WITH FEDERAL PERMITTED VESSELS AND THEIR LOBSTER LANDING

VALUE PERCENTAGE OF ANNUAL GROSS REVENUE IN 2019 

[In 2020 U.S. $] 

Large entity 

(E) 

Lob % 

revenue 

large E 

Average 

revenue 

large E 

Small entity 

Lob % 

revenue 

small E 

Average 

revenue 

small E 

Total entities 

Fishing with Lobster 

Landing ..................... 2 83.9% N/A 1,173 91.5% $287,000 1,175 

Fishing Without Lobster 

Landing ..................... 0 0 N/A 110 0 135,000 110 

No revenue .................. 0 0 N/A 262 0 0 262 

Total Entities ......... 2 ........................ N/A 1,545 ........................ 252,000 1,547 

Notes: 1. The determination of large or small entity is based on three-year average affiliation revenue from 2017 to 2019. Lobster landing percentage is calculated using only 2019 data. 

2. Gross annual average revenue for large entities are not reported here due to confidentiality concern. 

Source: Social Science Branch vessel affiliation data, 2017–2019. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, an outreach 

document that serves as a small entity 

compliance guide was prepared. Copies 

of this final rule are available from the 

Greater Atlantic Regional Fisheries 

Office (GARFO), and the compliance 

guide will be sent to all holders of 

permits for the lobster fishery in the 

Northeast Region. The compliance guide 

and this final rule will be posted on the 

Plan web page at Fisheries.NOAA.gov/ 

ALWTRP. 

Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes 

NMFS determined a 60- to 80-percent 

risk reduction was necessary to reduce 

mortality and serious injury in the 

American lobster and Jonah crab 

commercial fisheries to below PBR. 

Where risk reduction benefits were 

equal and where safety, capacity, 

economic, or operational constraints 

were better served, conservation 

equivalencies requested through public 

comments on the DEIS and proposed 

rule to mitigate those concerns were 

accepted and are included in this final 

rule. These include conservation 

equivalencies in Maine LMA 1 waters, 

LMA 2 and LMA 3 waters. To enable the 

Maine LMA 1 conservation 

equivalencies, this rule also modifies 

regulations implementing the Atlantic 

Coastal Fisheries Cooperative 

Management Act at 50 CFR 697.21(b)2), 

increasing the maximum number of 

traps on a trawl with a single buoy line 

from three to ten in some Maine Zones. 

This would allow vessel operators to 

trawl up to a 20-trap trawls or to use 

two 10-trap trawls with one buoy line. 

Additional changes made to 

accommodate conservation equivalency 

measures offered by the Maine 

Department of Marine Resources and 

supported by commenters from the 

Maine fishing industry, including 

modifications to the number of traps on 

a trawl or the number of weak insertions 

based on Maine fishery zones and 

distance from shore out to 12 nm (22.2 

km). This rule also implements 

conservation equivalency 

recommendations submitted by Rhode 

Island and supported by Rhode Island 

fishermen, modifying the LMA 2 

measures with more expansive weak 

insert requirements throughout the LMA 

rather than trawling up requirements 

that challenged the capacity of some 

Rhode Island vessels. Additionally, this 

rule implements some of the 

conservation equivalency 

recommendations submitted by the 

Atlantic Offshore Lobstermen’s 

Association as public comments on the 

DEIS and Proposed Rule for LMA 3. 

This rule implements three management 

areas in LMA 3 with three different 

trawling up requirements, requiring 

more traps/trawl in the Georges Basin 

area where there is more risk to right 

whales. This increase in number of traps 

per trawl of Georges Basin was offset by 

a lower number of traps required within 

the Northeast Region south of the 50 

fathom (91.4 m) depth contour on the 

south end of Georges Bank. 

All these conservation equivalencies 

were created with input from fishermen 

from these areas, informed by their 

knowledge of measures that would best 

fit their economic, operational or safety 

needs. For LMA 2 vessels, the weak 

rope alternative implemented has less 

impact on catch and landings and 

therefore could have a lower economic 

impact compared to the LMA 2 

measures analyzed in the IRFA. 

This rule also modifies existing 

seasonal restricted areas that were 

closed to lobster and Jonah crab trap/pot 

fishing to allow ropeless fishing with 

exempted fishing permits (EFP). Under 

a revised restricted area definition, trap/ 

pot fishermen could fish with trap/pot 

gear using ‘‘ropeless’’ methods, although 

an EFP would be required to exempt 

fishermen from surface marking 

requirements under other laws. Since 

2018, NOAA has invested a substantial 

amount of funding in the industry’s 

development of ropeless gear, in 

specific geographic areas and in general. 

We anticipate that these efforts to 

facilitate and support the industry’s 

development of ropeless gear would 

continue, pending appropriations, and 

would be essential to defray costs for 

early adopters. 

52010 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

This final rule contains a collectionof-information requirement subject to 

review and approval by OMB under the 

Paperwork Reduction Act (PRA), 

specifically the marking of fishing gear. 

This rule changes the existing 

requirements for the collection of 

information 0648–0364 by modifying 

gear marking for all buoy lines with the 

exemption of those fishing in Maine 

exempted waters in the Northeast 

Region Trap/Pot Management Area. As 

described in this preamble, mark colors 

will be changed for vessels identifying 

principal ports from Maine through 

Rhode Island to state-specific marks. 

Under the new marking scheme, a large 

3-foot (91-cm) mark would be required 

within the top 2 fathoms (60.96 cm) of 

the buoy in state and Federal waters. 

Within state waters, at least two 

additional 12-inch (30.5-cm) marks 

would be required in the top and bottom 

of the main buoy line. In Federal waters, 

at least three 12-inch (30.5-cm) marks 

would be required at the top, middle, 

and bottom of the main buoy line. In 

Federal waters, an additional 12-inch 

(30.5 cm) green mark is required within 

6 inches (15.25 cm) of each state 

specific mark (at least four in total, 

including the large mark in the surface 

system and at least three marks in the 

main buoy line). Each color mark must 

be permanently affixed on or along the 

line, and each color mark must be 

clearly visible when the gear is hauled 

or removed from the water. Paint and 

tape will be required for the surface 

system marks, and the commonly used 

colored ties and twine can be used 

within the main buoy lines. The 

changes from current gear marking 

include: The state color, the addition of 

a surface system mark, one less mark 

required in the main buoy line in state 

waters, and four additional marks 

required to distinguish Federal waters. 

While Maine fishermen in non-exempt 

state waters have already marked their 

gear under Maine regulations, we 

include the costs of that effort in our 

calculation in response to comments 

that noted that the Maine regulations 

were implemented in anticipation of 

this rule. Additionally, we had 

previously assumed that about 20 

percent of the gear marks were 

reapplied each year, but new 

information suggests they are applied 

annually. Using these assumptions, the 

public reporting burden for the 

Northeast Region lobster and Jonah crab 

gear marking requirements are estimated 

to affect 3,970 vessels that need to 

remark an average of 389 marks each 

year. Each mark takes between 

approximately 6.7 and 8.6 minutes to 

apply, depending on the size of the 

mark and method used. Applying the 

annual hourly wage rate for fishermen 

of $26.5 results in a total estimated 

annual wage burden cost of $4.5 to 5.9 

million dollars. 

We invite the general public and other 

Federal agencies to comment on 

proposed and continuing information 

collections, which helps us assess the 

impact of our information collection 

requirements and minimize the public’s 

reporting burden. Written comments 

and recommendations for this 

information collection should be 

submitted at the following website 

www.reginfo.gov/public/do/PRAMain. 

Find this particular information 

collection by using the search function 

and entering either the title of the 

collection or the OMB Control Number 

0648–0364. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

Consistency With Coastal Zone 

Management Act 

NMFS has determined that this action 

is consistent to the maximum extent 

practicable with the approved coastal 

management programs of the U.S. 

Atlantic coastal states affected by the 

action. This determination was 

submitted for review by the responsible 

state agencies under section 307 of the 

Coastal Zone Management Act. New 

Hampshire and Rhode Island agreed 

with NMFS’ determination. Maine and 

Massachusetts did not respond; 

therefore, consistency is inferred. 

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Ziccardi. 2021. REVIEW Assessing North 

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Moore, Paul Wade. 2020. North Atlantic 

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2017. State-space mark-recapture 

estimates reveal a recent decline in 

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whales. Ecology and Evolution 7:8730– 

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Pace, R.M., R. Williams, S.D. Kraus, A.R. 

Knowlton, H.M Pettis. 2021. Cryptic 

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Improvements for Hypothesis Testing. 

NOAA NEFSC Tech Memo 269. 

Plourde, S., C. Lehoux, C.L. Johnson, G. 

Perrin, and V. Lesage. 2019. North 

Atlantic right whale (Eubalaena 

glacialis) and its food: (I) a spatial 

climatology of Calanus biomass and 

potential foraging habitats in Canadian 

waters. 00:19. 

Record, N.R., W.M. Balch, and K. 

Stamieszkin. 2019a. Century-scale 

changes in phytoplankton phenology in 

the Gulf of Maine. PeerJ 7:e6735. 

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2019b. Rapid Climate-Driven Circulation 

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Garrison, K.D. Mullin, T.V.N. Cole, C.B. 

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G.G. Lockhart. 2016. Habitat-based 

cetacean density models for the United 

States Atlantic and Gulf of Mexico. 

Scientific Reports 6:22615. 

Rolland, R., R. Schick, H. Pettis, A. 

Knowlton, P. Hamilton, J. Clark, and S. 

Kraus. 2016. Health of North Atlantic 

right whales Eubalaena glacialis over 

three decades: from individual health to 

demographic and population health 

trends. Marine Ecology Progress Series 

542:265–282. 

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A.R. Knowlton, and M.J. Moore. 2017. 

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List of Subjects 

50 CFR Part 229 

Administrative practice and 

procedure, Confidential business 

information, Endangered Species, 

Fisheries, Marine mammals, Reporting 

and recordkeeping requirements. 

50 CFR Part 697 

Fisheries, Fishing. 

Dated: August 30, 2021. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR parts 229 and 697 are 

amended as follows: 

PART 229—AUTHORIZATION FOR 

COMMERCIAL FISHERIES UNDER THE 

MARINE MAMMAL PROTECTION ACT 

OF 1972 

■ 1. The authority citation for 50 CFR 

part 229 continues to read as follows: 

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

§ 229.32(f) also issued under 16 U.S.C. 1531 

et seq. 

■ 2. In § 229.2, add definitions for 

‘‘Lobster Management Area,’’ ‘‘Greater 

Atlantic Regional Administrator’’ and 

‘‘Surface system’’ in alphabetical order 

to read as follows: 

§ 229.2 Definitions. 

* * * * * 

Lobster Management Area as used in 

this part means the management areas 

defined in the American Lobster Fishery 

regulations found at 50 CFR 697.18. 

* * * * * 

Greater Atlantic Regional 

Administrator as used in this part, 

means the Regional Administrator for 

the regional fisheries office of the 

National Oceanic and Atmospheric 

Administration for the large marine 

ecosystem from Maine to Cape Hatteras, 

North Carolina directed from the 

Regional Office in Gloucester, 

Massachusetts. 

* * * * * 

Surface system, with reference to 

trap/pot and fixed gillnet gear, includes 

the components at the sea surface to 

identify the presence of stationary 

bottom fishing gear, and includes buoys, 

radar reflectors, and high flyers. 

* * * * * 

■ 3. Revise § 229.32 to read as follows: 

§ 229.32 Atlantic large whale take 

reduction plan regulations. 

(a) Purpose and scope—(1) Whales 

and fixed gear fisheries. The purpose of 

this section is to implement the Atlantic 

Large Whale Take Reduction Plan to 

reduce incidental mortality and serious 

injury of fin, humpback, and right 

whales in specific Category I and 

Category II commercial fisheries from 

Maine through Florida. Specific 

Category I and II commercial fisheries 

within the scope of the Plan are 

identified and updated in the annual 

List of Fisheries. The measures 

identified in the Atlantic Large Whale 

Take Reduction Plan are also intended 

to benefit minke whales, which are not 

designated as a strategic stock, but are 

known to be taken incidentally in 

gillnet and trap/pot fisheries. The gear 

types affected by this plan include 

gillnets (e.g., anchored, drift, and shark) 

and traps/pots. The Assistant 

Administrator may revise the 

52012 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

requirements set forth in this section in 

accordance with paragraph (i) of this 

section; 

(2) Regulated waters—(i) U.S. Atlantic 

waters. The regulations in this section 

apply to all U.S. waters in the Atlantic 

except for the areas exempted in 

paragraph (a)(3) of this section; 

(ii) Northeast Region. The Northeast 

Region referred to in paragraphs (b)(1) 

(b)(2)(i), (b)(3), and (c)(2)(iv) of this 

section applies to ocean waters within 

an area bounded on the west by land or 

by a rhumb line from 41°18.2′ N lat., 

71°51.5′ W long. (Watch Hill Point, RI) 

and on the south by the 40°00′ N lat. 

line running east to the EEZ line, and 

bounded on the east by the EEZ north 

to the U.S./Canada border except for the 

areas and specific purposes exempted in 

paragraph (a)(3) of this section; and 

(iii) Six-mile line. The six-mile line 

referred to in paragraph (c)(2)(iv) of this 

section is a line connecting the 

following points (Machias Seal to 

Provincetown): 

Table 1 to Paragraph (a)(2)(iii) 

44°31.98′ N lat., 67°9.72′ W long. 

(Machias Seal) 

44°3.42′ N lat., 68°10.26′ W long. 

(Mount Desert Island) 

43°40.98′ N lat., 68°48.84′ W long. 

(Matinicus) 

43°39.24′ N lat., 69°18.54′ W long. 

(Monhegan) 

43°29.4′ N lat., 70°5.88′ W long. (Casco 

Bay) 

42°55.38′ N lat., 70°28.68′ W long. (Isle 

of Shoals) 

42°49.53′ N lat., 70°32.84′ W long. 

42°46.74′ N lat., 70°27.70′ W long. 

42°44.18′ N lat., 70°24.91′ W long. 

42°41.61′ N lat., 70°23.84′ W long. 

42°38.18′ N lat., 70°24.06′ W long. 

42°35.39′ N lat., 70°25.77′ W long. 

42°32.61′ N lat., 70°27.91′ W long. 

42°30.00′ N lat., 70°30.60′ W long. 

42°17.19′ N lat., 70°34.80′ W long. 

42°12.48′ N lat., 70°32.20′ W long. 

42°12.27′ N lat., 70°25.98′ W long. 

42°11.62′ N lat., 70°16.78′ W long. 

42°12.27′ N lat., 70°10.14′ W long. 

42°12.05′ N lat., 70°54.26′ W long. 

42°11.20′ N lat., 70°17.86′ W long. 

42°09.55′ N lat., 69°58.80′ W long. 

(Provincetown) 

(iv) Maine pocket waters. The pocket 

waters referred to in paragraph (c)(2)(iv) 

of this section are defined as follows: 

Table 2 to Paragraph (a)(2)(iv) 

West of Monhegan Island in the area 

north of the line 43°42.17′ N lat., 

69°34.27′ W long. and 43°42.25′ N 

lat., 69°19.3′ W long. 

East of Monhegan Island in the area 

located north of the line 43°44′ N 

lat., 69°15.08′ W long. and 43°48.17′ 

N lat., 69°8.02′ W long. 

South of Vinalhaven Island in the area 

located west of the line 43°52.31′ N 

lat., 68°40′ W long. and 43°58.12′ N 

lat., 68°32.95′ W long. 

South of Bois Bubert Island in the area 

located northwest of the line 

44°19.27′ N lat., 67°49.5′ W long. 

and 44°23.67′ N lat., 67°40.5′ W 

long. 

(v) Maine Lobster Management Zones: 

The Maine Zones referred to in 

paragraph (c)(2)(iv) of this section 

include waters seaward of the Maine 

Exempted Waters referred to in 

paragraph (a)(3)(ii)(A) of this section as 

managed in eight Zones defined by 

Maine DMR. The Zones are bounded 

northeast by the U.S./Canada EEZ 

International Boundary line, offshore by 

the Lobster Management Area (LMA) 

boundary where LMA 1 meets the 

border of LMA 3 (LMA 1/LMA 3 

boundary), and to the west by a 

boundary proceeding offshore from the 

Maine/New Hampshire state line. 

Individual Zone boundaries are defined 

as follows: 

TABLE 3 TO PARAGRAPH (a)(2)(v) 

Maine lobster management zone Description 

A—East ........................................... The eastern and offshore boundary of Zone A East follows the International Boundary line between Canada and the United States (Maine) extending to and following the Exclusive Economic Zone boundary to 

approximately 44°8′ N lat., 67°18.00′ W long. 

The western boundary runs from that point due north along the 67°18.00′ W long. line to Cross Island, 

Maine. 

A—West .......................................... The eastern boundary of Zone A West is the western boundary of Zone A East. 

The western boundary of Zone A West follows: A line running from the Southern tip of Schoodic Point at 

44°19.90′ N lat., and 68°03.61′ W long. and running south southeast to the LMA1/LMA3 border at 

43°45.43′ N lat. and 67°50.12′ W long. 

The offshore boundary is the LMA1/LMA3 boundary. 

B ...................................................... The eastern boundary of Zone B is the western boundary of Zone A West. 

The western boundary follows a line that starts at the southernmost end of Newbury Neck following a 

straight line connecting the points as follows: 

44°13.7′ N lat, 68°27.8 W long. (a point 1⁄4 mile due east of Pond Island), then to the easternmost point of 

Black Island then to the navigation buoy R ‘‘8’’ at the western entrance of York Narrows then south to 

Swans Island Head then continuing along the southwestern shore of Swans Island to West Point then 

following the western boundary of the Swans Island Lobster Conservation Area southerly to a point at 

44° 01.9′ N lat, 68°28.6′ W long, then SSE to 43°32.66′ N lat., 68°17.28′ W long. where it intersects the 

LMA1/LMA3 boundary. 

The offshore boundary is the LMA1/LMA3 boundary. 

C ...................................................... The eastern boundary of Zone C is the western boundary of Zone B. 

The western boundary runs along a line connecting the points as follows: 

44°18.72′ N lat., 68°49.61′ W long. (Head of the Cape, Cape Rosier), SSW to 44°10.49′ N lat., 68°55.57′ 

W long., SW to 44°06.14′ N lat, 69°00.00′ W long., S to 44°04.51′ N lat., 69°00.01′ W long., SSE to 44° 

00.79′ N lat., 68°59.48′ W long., SSE to 43°58.01′ N lat., 68°58.02′ W long., WSW to 43°57.82′ N lat., 

68° 58.69′ W long., SSW to 43°56.86′ N lat., 68°58.85′ W long., SE to 43°55.30′ N lat., 68°55.00′ W 

long., WSW to 43°54.27′ N lat., 68°58.33′ W long., S to 43°51.00′ N lat., 68°58.31′ W long., W to 

43°51.00′ N lat., 69°00.11′ W long., SSE to 43°46.57′ N lat., 68°59.30′ W long., SW to 43°44.88′ N lat., 

69°01.97′ W long., SE to 43°35.08′ N lat., 68° 50.08′ W long., S to 43°19.63′ N lat., 68° 44.255′ W long. 

where it intersects the LMA1/LMA3 boundary. 

The offshore boundary is the LMA1/LMA3 boundary. 

D ...................................................... The eastern boundary of Zone D runs along the points as follows: 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52013 

TABLE 3 TO PARAGRAPH (a)(2)(v)—Continued 

Maine lobster management zone Description 

44° 18.72′ N, 068° 49.61′ W (Head of the Cape, Cape Rosier), SSW to 44° 10.492′ N, 068° 55.574′ W, 

SW to 44° 06.136′ N, 069° 00.000′ W, S to 44° 04.506′ N, 069° 00.014′ W, SSE to 44° 00.788′ N, 068° 

59.475′ W, SSE to 43° 58.011′ N, 068° 58.023′ W, ENE to 43° 58.194′ N, 068° 57.381′ W, SSE to 43° 

57.309′ N, 068° 57.226′ W, SE to 43° 55.688′ N, 068° 53.662′ W, WSW to 43° 55.285′ N, 068° 55.000′ 

W, WSW to 43° 54.265′ N, 068° 58.330′ W, S to 43° 50.997′ N, 068° 58.313′ W, W to 43° 51.001′ N, 

069° 00.107′ W, SSE to 43° 46.565′ N, 068° 59.298′ W, NE to 43° 47452′ N, 068° 57.853′ W, SE to 43° 

44.669′ N, 068° 54.350′ W, S to 43°19.63′ N lat., 68° 44.255′ W long. where it intersects the LMA1/ 

LMA3 boundary. 

The western boundary of Zone D starts at the southern tip of Pemaquid Point, SSW and follows a line 

connecting the points as follows: 

43°48.1′ N lat, 69°30′W long., S to 43°39.0′ N lat, 69°30.0′ W long., S to 43°02.57′ N lat, 69°16.43′ W 

long., to where it intersects the LMA1/LMA3 boundary. 

The offshore boundary is the LMA1/LMA3 boundary. 

E ...................................................... The eastern boundary of Zone E is the western boundary of Zone C. 

The western boundary of Zone E begins at Newbury Point in Small Point Harbor, Phippsburg and follows a 

line connecting the points as follows: 

SSW to N′′2′, SSE to ‘‘2BH’’, S to 43°38.73′ N lat., 69°49.95′ W long., along the 3 mile line to 43°38.87′ N 

lat., 69°48.82′ W long, S to 42°53.51′ N lat., 69° 32.18′ W long., where it intersects the LMA1/LMA3 

boundary. 

The offshore boundary is the LMA1/LMA3 boundary. 

F ...................................................... The eastern boundary of Zone F is the western boundary of Zone E. 

The western boundary of Zone F runs in a straight line from the active Lighthouse at Two Lights Cape 

Elizabeth and follows a line connecting the points as follows: 

43°31.80′ N lat. 70°08.56′ W long. near the C ‘‘1’’ East Hue & Cry buoy, WSW to 43°29.28′ N lat, 

70°11.77′ W long., S to 42°36.22′ N lat. 69°52.66′ W long, where it intersects the southeastern apex of 

Zone G. From this point, Zone F boundary follows a straight line southeast to 42°29.85′ N¥69° 40.08′ 

W where it meets the LMA1/LMA3 boundary. 

The offshore boundary is the LMA1/LMA3 boundary. 

G ..................................................... The eastern boundary of Zone G is as follows: 

43° 41.550′ N, 070° 14.650′ W, SSE 159° Magnetic to 43° 32.875′ N, 070° 05.920′ W, SSE to 42° 31.50′ 

N, ¥69° 43.34′ W where it meets with the southwestern boundary of Zone F. 

The western boundary of Zone G is the seaward extension of the Maine—NH border and follows a line 

connecting the points as follows: 

43°02.62′ N lat. 70°42.1′ W long., to 42°58.92′ N lat., 70°37.65′ W long., to 42°58.75′ N lat., 70°36.72′ W 

long., to where it intersects with the western Zone F boundary. 

(3) Exempted waters—(i) COLREGS 

demarcation line. The regulations in 

this section do not apply to waters 

landward of the 72 COLREGS 

demarcation lines (International 

Regulations for Preventing Collisions at 

Sea, 1972), as depicted or noted on 

nautical charts published by the 

National Oceanic and Atmospheric 

Administration (Coast Charts 1:80,000 

scale), and as described in 33 CFR part 

80 with the exception of the COLREGS 

lines for Casco Bay (Maine), Portsmouth 

Harbor (New Hampshire), Gardiners Bay 

and Long Island Sound (New York), and 

the state of Massachusetts; 

(ii) Other exempted waters—(A) 

Maine. The regulations in this section 

do not apply to waters landward of a 

line connecting the following points 

(Quoddy Narrows/U.S.-Canada border 

to Odiornes Pt., Portsmouth, New 

Hampshire): 

Table 4 to Paragraph (a)(3)(ii)(A) 

44°49.67′ N lat., 66°57.77′ W long. (R N 

‘‘2’’, Quoddy Narrows) 

44°48.64′ N lat., 66°56.43′ W long. (G 

‘‘1’’ Whistle, West Quoddy Head) 

44°47.36′ N lat., 66°59.25′ W long. (R N 

‘‘2’’, Morton Ledge) 

44°45.51′ N lat., 67°02.87′ W long. (R 

‘‘28M’’ Whistle, Baileys Mistake) 

44°37.70′ N lat., 67°09.75′ W long. 

(Obstruction, Southeast of Cutler) 

44°27.77′ N lat., 67°32.86′ W long. 

(Freeman Rock, East of Great Wass 

Island) 

44°25.74′ N lat., 67°38.39′ W long. (R 

‘‘2SR’’ Bell, Seahorse Rock, West of 

Great Wass Island) 

44°21.66′ N lat., 67°51.78′ W long. (R N 

‘‘2’’, Petit Manan Island) 

44°19.08′ N lat., 68°02.05′ W long. (R 

‘‘2S’’ Bell, Schoodic Island) 

44°13.55′ N lat., 68°10.71′ W long. (R 

‘‘8BI’’ Whistle, Baker Island) 

44°08.36′ N lat., 68°14.75′ W long. 

(Southern Point, Great Duck Island) 

43°59.36′ N lat., 68°37.95′ W long. (R 

‘‘2’’ Bell, Roaring Bull Ledge, Isle 

Au Haut) 

43°59.83′ N lat., 68°50.06′ W long. (R 

‘‘2A’’ Bell, Old Horse Ledge) 

43°56.72′ N lat., 69°04.89′ W long. (G 

‘‘5TB’’ Bell, Two Bush Channel) 

43°50.28′ N lat., 69°18.86′ W long. (R ‘‘2 

OM’’ Whistle, Old Man Ledge) 

43°48.96′ N lat., 69°31.15′ W long. (GR 

C ‘‘PL’’, Pemaquid Ledge) 

43°43.64′ N lat., 69°37.58′ W long. (R 

‘‘2BR’’ Bell, Bantam Rock) 

43°41.44′ N lat., 69°45.27′ W long. (R 

‘‘20ML’’ Bell, Mile Ledge) 

43°36.04′ N lat., 70°03.98′ W long. (RG 

N ‘‘BS’’, Bulwark Shoal) 

43°31.94′ N lat., 70°08.68′ W long. (G 

‘‘1’’, East Hue and Cry) 

43°27.63′ N lat., 70°17.48′ W long. (RW 

‘‘WI’’ Whistle, Wood Island) 

43°20.23′ N lat., 70°23.64′ W long. (RW 

‘‘CP’’ Whistle, Cape Porpoise) 

43°04.06′ N lat., 70°36.70′ W long. (R N 

‘‘2MR’’, Murray Rock) 

43°02.93′ N lat., 70°41.47′ W long. (R 

‘‘2KR’’ Whistle, Kittery Point) 

43°02.55′ N lat., 70°43.33′ W long. 

(Odiornes Pt., Portsmouth, New 

Hampshire) 

(B) New Hampshire. New Hampshire 

state waters are exempt from the 

minimum number of traps per trawl 

requirement in paragraph (c)(2)(iv) of 

this section. Harbor waters landward of 

the following lines are exempt from all 

the regulations in this section; 

Table 5 to Paragraph (a)(3)(ii)(B) 

A line from 42°53.691′ N lat., 70°48.516′ 

W long. to 42°53.516′ N lat., 

70°48.748′ W long. (Hampton 

Harbor) 

52014 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

A line from 42°59.986′ N lat., 70°44.654′ 

W long. to 42°59.956′ N, 70°44.737′ 

W long. (Rye Harbor) 

(C) Rhode Island. Rhode Island state 

waters are exempt from the minimum 

number of traps per trawl requirement 

in paragraph (c)(2)(iv) of this sectioN 

Harbor waters landward of the following 

lines are exempt from all the regulations 

in this section; 

Table 6 to Paragraph (a)(3)(ii)(C) 

A line from 41°22.441′ N lat., 71°30.781′ 

W long. to 41°22.447′ N lat., 

71°30.893′ W long. (Pt. Judith Pond 

Inlet) 

A line from 41°21.310′ N lat., 71°38.300′ 

W long. to 41°21.300′ N lat., 

71°38.330′ W long. (Ninigret Pond 

Inlet) 

A line from 41°19.875′ N lat., 71°43.061′ 

W long. to 41°19.879′ N lat., 

71°43.115′ W long. (Quonochontaug 

Pond Inlet) 

A line from 41°19.660′ N lat., 71°45.750′ 

W long. to 41°19.660′ N lat., 

71°45.780′ W long. (Weekapaug 

Pond Inlet) 

A line from 41°26.550′ N lat., 71°26.400′ 

W long. to 41°26.500′ N lat., 

71°26.505′ W long. (Pettaquamscutt 

Inlet) 

(D) New York. The regulations in this 

section do not apply to waters landward 

of a line that follows the territorial sea 

baseline through Block Island Sound 

(Watch Hill Point, RI, to Montauk Point, 

NY); 

(E) Massachusetts. The regulations in 

this section do not apply to waters 

landward of the first bridge over any 

embayment, harbor, or inlet in 

Massachusetts. The following 

Massachusetts state waters are exempt 

from the minimum number of traps per 

trawl requirement in paragraph (c)(2)(iv) 

of this section: 

(1) Exempt waters of Massachusetts 

Bay and Outer Cape. Heading From the 

New Hampshire border to 70° W 

longitude south of Cape Cod, waters in 

EEZ Nearshore Management Area 1 and 

the Outer Cape Lobster Management 

Area (as defined in the American 

Lobster Fishery regulations under 

§ 697.18 of this title), from the shoreline 

to 3 nautical miles from shore, and 

including waters of Cape Cod Bay 

southeast of a straight line connecting 

41° 55.8′ N lat., 70°8.4′ W long. and 

41°47.2′ N lat., 70°19.5′ W long.; and 

(2) Exempt waters of southern 

Massachusetts. Heading From 70° W 

longitude south of Cape Cod to the 

Rhode Island border, all Massachusetts 

state waters in EEZ Nearshore 

Management Area 2 and the Outer Cape 

Lobster Management Area (as defined in 

the American Lobster Fishery 

regulations 50 CFR 697.18), including 

Federal waters of Nantucket Sound west 

of 70° W long.; 

(F) South Carolina. The regulations in 

this section do not apply to waters 

landward of a line connecting the 

following points from 32°34.717′ N lat., 

80°08.565′ W long. to 32°34.686′ N lat., 

80°08.642′ W long. (Captain Sams Inlet); 

(4) Sinking groundline exemption. 

The fisheries regulated under this 

section are exempt from the requirement 

to have groundlines composed of 

sinking line if their groundline is at a 

depth equal to or greater than 280 

fathoms (1,680 feet or 512.1 m); 

(5) Net panel weak link and anchoring 

exemption. The anchored gillnet 

fisheries regulated under this section are 

exempt from the requirement to install 

weak links in the net panel and anchor 

each end of the net string if the float-line 

is at a depth equal to or greater than 280 

fathoms (1,680 feet or 512.1 m); and 

(6) Island buffer. Those fishing in 

waters within 1⁄4 nautical miles of the 

following Maine islands are exempt 

from the minimum number of traps per 

trawl requirement in paragraph (c)(2)(iv) 

of this section: Monhegan Island, 

Matinicus Island Group (Metinic Island, 

Small Green Island, Large Green Island, 

Seal Island, Wooden Ball Island, 

Matinicus Island, Ragged Island), and 

Isles of Shoals Island Group (Duck 

Island, Appledore Island, Cedar Island, 

Smuttynose Island). 

(b) Gear marking requirements—(1) 

Specified areas Fishermen permitted by 

Maine, New Hampshire, Massachusetts, 

Rhode Island, and NMFS to fish for 

lobster and Jonah crab using trap/pot 

gear in the Northeast Region will follow 

the color marking requirements for 

Federal waters as indicated in paragraph 

(b)(2) of this section and, except for 

when fishing in LMA3, will follow the 

color code scheme assigned to their 

state, indicated in paragraph (b)(3) of 

this section. For all other trap/pot and 

gillnet gear, excluding shark gillnet, the 

following areas are specified for gear 

marking purposes: Northern Inshore 

State Trap/Pot Waters, Cape Cod Bay 

Restricted Area, Massachusetts 

Restricted Area, Stellwagen Bank/ 

Jeffreys Ledge Restricted Area, Northern 

Nearshore Trap/Pot Waters Area, Great 

South Channel Restricted Trap/Pot 

Area, Great South Channel Restricted 

Gillnet Area, Great South Channel 

Sliver Restricted Area, Southern 

Nearshore Trap/Pot Waters Area, 

Offshore Trap/Pot Waters Area, Other 

Northeast Gillnet Waters Area, Mid/ 

South Atlantic Gillnet Waters Area, 

Other Southeast Gillnet Waters Area, 

Southeast U.S. Restricted Areas, and 

Southeast U.S. Monitoring Area; 

(i) Jordan Basin. The Jordan Basin 

Restricted Area is bounded by the 

following points connected by straight 

lines in the order listed: 

TABLE 7 TO PARAGRAPH (b)(1)(i) 

Point N Lat. W Long. 

JBRA1 ...................................................................................................................................................................... 43°15′ 68°50′ 

JBRA2 ...................................................................................................................................................................... 43°35′ 68°20′ 

JBRA3 ...................................................................................................................................................................... 43°25′ 68°05′ 

JBRA4 ...................................................................................................................................................................... 43°05′ 68°20′ 

JBRA5 ...................................................................................................................................................................... 43°05′ 68°35′ 

JBRA1 ...................................................................................................................................................................... 43°15′ 68°50′ 

(ii) Jeffreys Ledge Restricted Area. The 

Jeffreys Ledge Restricted Area is 

bounded by the following points 

connected by a straight line in the order 

listed: 

TABLE 8 TO PARAGRAPH (b)(1)(ii) 

Point N Lat. W Long. 

JLRA1 ...................................................................................................................................................................... 43°15′ 70°25′ 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52015 

TABLE 8 TO PARAGRAPH (b)(1)(ii)—Continued 

Point N Lat. W Long. 

JLRA2 ...................................................................................................................................................................... 43°15′ 70°00′ 

JLRA3 ...................................................................................................................................................................... 42°50′ 70°00′ 

JLRA4 ...................................................................................................................................................................... 42°50′ 70°25′ 

JLRA1 ...................................................................................................................................................................... 43°15′ 70°25′ 

(2) Markings. All specified gear in 

specified areas must be marked with the 

color code shown in paragraph (b)(3) of 

this section. The color must be 

permanently marked on or along the 

rope or ropes specified under 

paragraphs (b)(2)(i) through (iv) of this 

section. Each colored mark must be 

clearly visible when the gear is hauled 

or removed from the water, including if 

the color of the rope is the same as or 

similar to the respective color code; 

(i) Northeast Region lobster and Jonah 

crab buoy line markings. Beginning May 

1, 2022, for all Federal and state 

Northeast Region lobster and Jonah crab 

trap/pot gear regulated under this 

section, the buoy lines must be marked 

with a solid mark at least 36 inches 

(91.4 cm) in length within 2 fathoms 

(3.7 m) of the surface buoy. When 

fishing in Federal waters, all Northeast 

Region lobster and Jonah crab trap/pot 

buoy lines must have an additional 

green mark of at least 12 inches (30.5 

cm) in length no more than 6 inches 

(15.2 cm) from the 36-inch (91.4 cm) 

mark. These long marks within 2 

fathoms (3.7 m) of the buoy must be 

solid marks that may be applied with 

dyed, painted, or heat-shrink tubing, 

insertion of a colored rope or braided 

sleeve, or the line may be marked as 

approved in writing by the Greater 

Atlantic Regional Administrator. When 

fishing in state waters, the buoy line 

below the surface system must be 

marked by the principal port state color 

at least two additional times (top half, 

bottom half) and each mark must at least 

total 12 inches (30.5 cm) for a total of 

at least three marks in state waters. For 

dual permitted vessels, state regulations 

will determine whether green Federal 

markings in the surface system and 

buoy line below the surface system can 

remain on gear being fished in state 

waters. When in Federal waters, the 

buoy line below the surface system must 

be marked at least three additional times 

(top, middle, and bottom) with the state 

or LMA 3 specific color, and each mark 

must total at least 12 inches (30.5 cm) 

in length. An additional green mark of 

at least 12 inches (30.5 cm) in length 

denoting Northeast Region Federal 

waters must be placed within 6 inches 

(15.2 cm) of each area-specific colored 

mark for a total of at least eight marks 

in Federal waters. In marking or affixing 

the color code(s) for the 1-foot buoy line 

marks for gear regulated under this 

paragraph (b)(2)(i), the line may be: 

Dyed; painted, marked with thin 

colored whipping line, thin colored 

plastic, or heat-shrink tubing; spliced in 

insertion of a colored rope or braided 

sleeve or other material, or a thin line 

may be woven into or through the line; 

or the line may be marked as approved 

in writing by the Greater Atlantic 

Regional Administrator. An outreach 

guide illustrating the techniques for 

marking gear is available from the 

Greater Atlantic Regional Administrator 

upon request and posted on the Atlantic 

Large Whale Take Reduction Plan 

website at Fisheries.NOAA.gov/ 

ALWTRP; 

(ii) Other buoy line markings. For all 

other trap/pot and gillnet gear regulated 

under this section, the buoy line must 

be marked at least three times (top, 

middle, bottom) and each mark must 

total at least 12 inches (30.5 cm) in 

length. If the mark consists of two 

colors, then each color mark may be at 

least 6 inches (15.2 cm) for a total mark 

of 12 inches (30.5 cm). In marking or 

affixing the color code for gear regulated 

under this paragraph (b)(2)(ii), the line 

may be: Dyed, painted, marked with 

thin colored whipping line, thin colored 

plastic, or heat-shrink tubing, spliced in 

insertion of a colored rope or braided 

sleeve or other material, or a thin line 

may be woven into or through the line, 

or the line may be marked as approved 

in writing by the Greater Atlantic 

Regional Administrator. An outreach 

guide illustrating the techniques for 

marking gear is available from the 

Greater Atlantic Regional Administrator 

upon request and posted on the Atlantic 

Large Whale Take Reduction Plan 

website at Fisheries.NOAA.gov/ 

ALWTRP; 

(iii) Net panel markings. Shark gillnet 

gear net panels in the Southeast U.S. 

Restricted Area S, Southeast U.S. 

Monitoring Area and Other Southeast 

Gillnet Waters are required to be 

marked. The net panel must be marked 

along both the floatline and the leadline 

at least once every 100 yards (91.4 m); 

(iv) Surface buoy markings. Trap/pot 

and gillnet gear regulated under this 

section must mark all surface buoys to 

identify the vessel or fishery with one 

of the following: The owner’s motorboat 

registration number, the owner’s U.S. 

vessel documentation number, the 

Federal commercial fishing permit 

number, or whatever positive 

identification marking is required by the 

vessel’s home-port state. When marking 

of surface buoys is not already required 

by state or Federal regulations, the 

letters and numbers used to mark the 

gear to identify the vessel or fishery 

must be at least 1 inch (2.5 cm) in height 

in block letters or Arabic numbers in a 

color that contrasts with the background 

color of the buoy. An outreach guide 

illustrating the techniques for marking 

gear is available from the Greater 

Atlantic Regional Administrator upon 

request and posted on the Atlantic Large 

Whale Take Reduction Plan website 

Fisheries.NOAA.gov/ALWTRP; 

(3) Color code. Gear must be marked 

with the appropriate colors to designate 

gear types and areas as follows: 

TABLE 9 TO PARAGRAPH (b)(3) 

Color code scheme 

Plan management area Color 

Northeast Region, Lobster and Jonah Crab Trap/Pot Gear, Applicable beginning May 1, 2022 

Trawls fished by vessels permitted by the state of Maine and with a principal port identified in Maine when 

fished in state waters.

Purple. 

52016 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

1Fishermen are also encouraged to maintain their 

buoy lines to be as knot-free as possible. Splices are 

considered to be less of an entanglement threat and 

are thus preferable to knots. 

TABLE 9 TO PARAGRAPH (b)(3)—Continued 

Color code scheme 

Plan management area Color 

Trawls fished by vessels permitted by the state of Maine and NMFS, with a principal port identified in 

Maine when fished in Federal LMA 1 waters *.

Purple, Green. 

Trawls fished by vessels permitted by the state of New Hampshire and with a principal port identified in 

New Hampshire when fished in state waters.

Yellow. 

Trawls fished by vessels permitted by the state of New Hampshire and NMFS, with a principal port identified in New Hampshire when fished in Federal LMA 1 waters *.Yellow, Green. 

Trawls fished by vessels permitted by the state of Massachusetts and with a principal port identified in 

Massachusetts when fished in state waters.

Red. 

Trawls fished by vessels permitted by the state of Massachusetts and NMFS with a principal port identified 

in Massachusetts when fished in Federal waters of LMA 1, OC, LMA 2 (including 2/3 overlap) *.

Red, Green. 

Trawls fished by vessels permitted by the state of Rhode Island and with a principal port identified in 

Rhode Island when fished in state waters.

Silver/Gray. 

Trawls fished by vessels permitted by the state of Rhode Island and NMFS, with a principal port identified 

in Rhode Island when in Federal waters of LMA 2 (including 2/3 overlap) *.

Silver/Gray, Green. 

Trawls fished in the Northeast EEZ Offshore Management Area 3 (LMA3) excluding the 2/3 overlap ........... Black, Green. 

Northeast Region, Other Trap/Pot gear 

Massachusetts Restricted Area ......................................................................................................................... Red. 

Northern Nearshore ........................................................................................................................................... Red. 

Northern Inshore State ....................................................................................................................................... Red. 

Stellwagen Bank/Jeffreys Ledge Restricted Area ............................................................................................. Red. 

Great South Channel Restricted Area overlapping with LMA 2 and/or Outer Cape ........................................ Red. 

Exempt Rhode Island state waters (single traps) .............................................................................................. Red and Blue. 

Exempt Massachusetts state waters in LMA 1 (single traps) ........................................................................... Red and White. 

Exempt Massachusetts state waters in LMA 2 (single traps) ........................................................................... Red and Black. 

Exempt Massachusetts state waters in Outer Cape (single traps) ................................................................... Red and Yellow. 

Isles of Shoals, ME (single traps) ...................................................................................................................... Red and Orange. 

Great South Channel Restricted Area overlapping with LMA 2/3 and/or LMA 3 .............................................. Black. 

Jordan Basin ...................................................................................................................................................... Black and Purple (LMA 3), Red and 

Purple (LMA 1) 

Jeffreys Ledge .................................................................................................................................................... Red and Green. 

Trap/Pot Gear 

Southern Nearshore ........................................................................................................................................... Orange. 

Southeast Restricted Area North (state Waters) ............................................................................................... Blue and Orange. 

Southeast Restricted Area North (Federal Waters) ........................................................................................... Green and Orange. 

Offshore .............................................................................................................................................................. Black. 

Gillnet excluding shark gillnet 

Cape Cod Bay Restricted Area ......................................................................................................................... Green. 

Stellwagen Bank/Jeffreys Ledge Restricted Area ............................................................................................. Green. 

Great South Channel Restricted Area ............................................................................................................... Green. 

Great South Channel Restricted Sliver Area ..................................................................................................... Green. 

Other Northeast Gillnet Waters .......................................................................................................................... Green. 

Jordan Basin ...................................................................................................................................................... Green and Yellow. 

Jeffreys Ledge .................................................................................................................................................... Green and Black. 

Mid/South Atlantic Gillnet Waters ...................................................................................................................... Blue. 

Southeast U.S. Restricted Area South .............................................................................................................. Yellow. 

Other Southeast Gillnet Waters ......................................................................................................................... Yellow. 

Shark Gillnet (with webbing of 5′′ or greater) 

Southeast U.S. Restricted Area South .............................................................................................................. Green and Blue. 

Southeast Monitoring Area ................................................................................................................................ Green and Blue. 

Other Southeast Waters .................................................................................................................................... Green and Blue. 

* For dual permitted vessels, state regulations will determine whether green marks can remain on gear being fished in state waters. 

(c) Restrictions applicable to trap/pot 

gear in regulated waters—(1) Universal 

trap/pot gear requirements. In addition 

to the gear marking requirements listed 

in paragraph (b) of this section and the 

area-specific measures listed in 

paragraphs (c)(2) through (14) of this 

section, all trap/pot gear in regulated 

waters, including the Northern Inshore 

State Trap/Pot Waters Area, must 

comply with the universal gear 

requirements listed in paragraphs 

(c)(1)(i) through (iii) of this section; 1

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52017 

(i) No buoy line floating at the 

surface. No person or vessel may fish 

with trap/pot gear that has any portion 

of the buoy line floating at the surface 

at any time when the buoy line is 

directly connected to the gear at the 

ocean bottom. If more than one buoy is 

attached to a single buoy line or if a 

high flyer and a buoy are used together 

on a single buoy line, floating line may 

be used between these objects; 

(ii) No wet storage of gear. Trap/pot 

gear must be hauled out of the water at 

least once every 30 days; and 

(iii) Groundlines. All groundlines 

must be composed entirely of sinking 

line. The attachment of buoys, toggles, 

or other floatation devices to 

groundlines is prohibited. 

(2) Area specific gear requirements. 

Trap/pot gear must be set according to 

the requirements outlined in paragraphs 

(c)(2)(i) through (iii) of this section and 

in the table to paragraph (c)(2)(iv) of this 

section; 

(i) Single traps and multiple-trap 

trawls. All traps must be set according 

to the configuration outlined in the table 

to paragraph (c)(2)(iv) of this section. 

Trawls up to and including five traps 

must only have one buoy line unless 

specified otherwise in the table to 

paragraph (c)(2)(iv) of this section; 

(ii) Buoy line weak links. With the 

exception of Northeast Region lobster 

and Jonah crab trap/pot trawls, all 

buoys, flotation devices and/or weights 

(except traps/pots, anchors, and leadline 

woven into the buoy line), such as 

surface buoys, high flyers, radar 

reflectors, subsurface buoys, toggles, 

window weights, etc., must be attached 

to the buoy line with a weak link placed 

either as close to each individual buoy, 

flotation device and/or weight as 

operationally feasible, or at the base of 

the surface system where the surface 

system attaches to the single buoy line, 

and that meets the following 

specifications; 

(A) Weak link breaking strengths. The 

breaking strength of the weak links must 

not exceed the breaking strength listed 

in paragraph (c)(2)(iv) of this section for 

a specified management area; 

(B) Approved weak links. The weak 

link must be chosen from the following 

list approved by NMFS: Swivels, plastic 

weak links, rope of appropriate breaking 

strength, hog rings, rope stapled to a 

buoy stick, or other materials or devices 

approved in writing by the Greater 

Atlantic Regional Administrator. An 

outreach guide illustrating the 

techniques for making weak links is 

available from the Greater Atlantic 

Regional Administrator upon request 

and posted on the Atlantic Large Whale 

Take Reduction Plan website 

Fisheries.NOAA.gov/ALWTRP; and 

(C) Clean breaks. Weak links must 

break cleanly leaving behind the bitter 

end of the line. The bitter end of the line 

must be free of any knots when the 

weak link breaks. Splices are not 

considered to be knots for the purposes 

of this paragraph (c)(2)(ii)(C); 

(iii) Weak buoy lines and weak 

insertion devices. Beginning May 1, 

2022, all lobster and Jonah crab trap/pot 

buoy lines in the management areas and 

configurations outlined in the table to 

paragraph (c)(2)(iv) of this section must 

use weak line or must insert weak 

devices along the buoy line as described 

in the table to paragraph (c)(2)(iv). The 

weak line and weak insert devices must 

meet the following specifications; 

(A) Breaking strength. The breaking 

strength of the weak buoy lines and 

weak insertion devices must not exceed 

1,700 lb (771 kgs); 

(B) Approved devices and distance 

between weak insertions. Weak 

insertion devices must be inserted in the 

specified intervals from the surface 

system and must be devices chosen 

from the following list approved by 

NMFS, including any rope no thinner 

than 5/16 inch (8 mm) diameter that is 

engineered to break at 1,700 lb (771 kg) 

or less in a color contrasting with the 

primary buoy line and 3 feet (91.4 cm) 

or longer spliced on either end into the 

primary buoy line. Splices that achieve 

nearly the manufactured breaking 

strength include but are not limited to: 

Three or more tuck splices, an eye to 

loop with 3 or more tuck splices, or a 

butt splice. A 3-foot long hollow braided 

sleeve such as those known as the South 

Shore Sleeve installed over a parted 

buoy line is approved. A plastic weak 

link engineered to break at 1700 lb (771 

kg) or less in a color that contrasts with 

the buoy line and with the breaking 

strength imprinted on the weak link is 

approved. The Greater Atlantic Regional 

Administrator will approve other 

materials, devices, or configurations 

inserted according to specifications 

approved in writing by the Greater 

Atlantic Regional Administrator. An 

outreach guide illustrating the 

techniques for making weak insert 

devices is available from the Greater 

Atlantic Regional Administrator upon 

request and posted on the Atlantic Large 

Whale Take Reduction Plan website 

Fisheries.NOAA.gov/ALWTRP; and 

(C) Clean breaks. Weak line and weak 

inserts must break cleanly leaving 

behind the bitter end of the line. The 

bitter end of the line must be free of any 

knots when the weak insert breaks. 

Splices are not considered to be knots 

for the purposes of this paragraph 

(c)(2)(iii)(D). 

(iv) Table of area specific trap/pot 

gear requirements. 

TABLE 10 TO PARAGRAPH (c)(2)(iv) 

Mgmt area; location Minimum number traps/trawl Minimum number of weak rope or weak insertion 

configuration 

Northeast Region Lobster and Jonah Crab Trap/Pot, Applicable beginning May 1, 2022 

Northern Inshore State; Maine Zones A, B, F, G exempt waters to 3 miles.3 (1 buoy line) ............................... Weak line for the top 50 percent of the buoy line or 

one weak insertion device at 50 percent buoy line 

length from top. 

Northern Inshore State; Maine Zones C, D, and E 

exempt waters to 3 miles.

2 (1 buoy line) or 4 (2 buoy lines) Weak line for the top 50 percent of the buoy line or 

one weak insertion device at 50 percent buoy line 

length from top. 

Northern Nearshore: Maine Zone A East 3 to 12 

miles.

10 (1 buoy line) or 20 (2 buoy 

lines).

Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Nearshore: Maine Zone A West 3 to 6 

miles.

4 (1 buoy line) or 8 (2 buoy lines) Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore: Maine Zone A West 6 to 12 

miles.

8 (1 buoy line) or 15 (2 buoy lines) Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

52018 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

TABLE 10 TO PARAGRAPH (c)(2)(iv)—Continued 

Mgmt area; location Minimum number traps/trawl Minimum number of weak rope or weak insertion 

configuration 

Northern Nearshore: Maine Zone B 3 to 6 miles ....... 5 (1 buoy line) ............................... Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore: Maine Zone C, D, E 3 to 6 

miles.

5 (1 buoy line) or 10 (2 buoy lines) Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore: Maine Zone F and G 3 to 6 

miles.

5 (1 buoy line) or 10 (2 buoy lines) Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Nearshore: Maine Zone B, D, and E 6 to 12 

miles.

5 (1 buoy line) or 10 (2 buoy lines) Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore: Maine Zone C 6 to 12 miles ..... 10 (1 buoy line) or 20 (2 buoy 

lines).

Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore: Maine Zone F 6 to 12 miles ..... 5 (1 buoy line) or 10 (2 buoy lines) Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Nearshore: Maine Zone G 6 to 12 miles ..... 10 (1 buoy line) or 20 (2 buoy 

lines).

Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Inshore State and Massachusetts Restricted Area; Massachusetts State Waters 2.No minimum number of traps per 

trawl. Trawls up to and including 

3 or fewer traps must only have 

one buoy line.

Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Northern Inshore State and Massachusetts Restricted Area; Other Massachusetts State Waters.2 (1 buoy line) Trawls up to and 

including 3 or fewer traps must 

only have one buoy line.

Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Northern Inshore State; New Hampshire State 

Waters.

No minimum trap/trawl .................. Weak line for the top 50 percent of the buoy line or 

one weak insertion device at 50 percent buoy line 

length from top. 

Northern Nearshore; New Hampshire and Massachusetts (3–6 miles).10 ................................................... Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore, Massachusetts Restricted Area, 

and Stellwagen Bank/Jeffreys Ledge Restricted 

Area; LMA 1 (6–12 miles).

15 ................................................... Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore and LMA1 Restricted Area; 

LMA1 (12+ miles).

25 ................................................... Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Inshore State, Massachusetts Restricted 

Area, and Massachusetts South Island Restricted 

Area; OC and LMA1/OC Overlap(0–3 miles).

No minimum number of traps per 

trawl.

Weak inserts every 60 ft (18.3 m) in top 75 percent 

of line or full weak line through top 75 percent of 

line. 

Northern Nearshore and Massachusetts Restricted 

Area; OC (3–12 miles).

15 ................................................... Weak line for the top 50 percent of the buoy line or 

two weak insertion devices, one at 25 percent 

and one at 50 percent buoy line length from top. 

Northern Nearshore and Great South Channel Restricted Area; OC (12+ miles).20 ................................................... Weak line for the top 33 percent of the buoy line or 

one weak insertion device at 33 percent buoy line 

length from top. 

Northern Inshore State; RI State Waters .................... No minimum number of traps per 

trawl.

Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Northern Nearshore; LMA 2 (3–12 miles) .................. 10 ................................................... Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Northern Nearshore, Great South Channel Restricted 

Area, and Massachusetts South of Island Restricted Area; LMA 2 (12+ miles).

20 ................................................... Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Offshore, Great South Channel Restricted Area, and 

Massachusetts South Island Restricted Area; LMA 

2/3 Overlap (12+ miles).

20 ................................................... Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line. 

Northeast Region Offshore waters including Great 

South Channel Restricted Area, and Massachusetts South Island Restricted Area, with the exception of the Georges Basin and South Georges 50 

Fathom Restricted Areas; LMA 3 including LMA3- 

only vessels fishing in 2/3 overlap.

45 ................................................... Weak line for the top 75 percent of one buoy line. 

Northeast Region Offshore waters Georges Basin 

Restricted Area.

50 ................................................... Weak line for the top 75 percent of the buoy line. 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52019 

TABLE 10 TO PARAGRAPH (c)(2)(iv)—Continued 

Mgmt area; location Minimum number traps/trawl Minimum number of weak rope or weak insertion 

configuration 

Northeast Region Offshore waters South Georges 50 

Fathom Restricted Area.

35 ................................................... Weak line for the top 75 percent of the buoy line. 

Other Trap/Pot 

Northern Inshore State; Maine State and Pocket 

Waters 1.

2 (1 buoy line) ............................... ≤600 lb. 

Northern Nearshore; Maine Zones A–G (3–6 miles) 1 3 (1 buoy line) ............................... ≤600 lb. 

Northern Nearshore; Maine Zones A–C (6–12 

miles) 1.

5 (1 buoy line) ............................... ≤600 lb. 

Northern Nearshore; Maine Zones D–G (6–12 

miles) 1.

10 ................................................... ≤600 lb. 

Northern Nearshore, Offshore, and LMA1 Restricted 

Area; Maine Zones A–E (12+ miles).

15 ................................................... ≤600 lb (≤1500 lb in offshore, 2,000 lb if red crab 

trap/pot). 

Northern Nearshore, Offshore, and LMA1 Restricted 

Area; Maine Zones F–G (12+ miles).

15 (Mar 1–Oct 31) 20 (Nov 1–Feb 

28/29).

≤600 ls (≤1500 lb in offshore, 2,000 ls if red crab 

trap/pot). 

Northern Inshore State and Massachusetts Restricted Area; Massachusetts State Waters 2.No minimum number of traps per 

trawl. Trawls up to and including 

3 or fewer traps must only have 

one buoy line.

≤600 lb. 

Northern Inshore State, Massachusetts Restricted 

Area, and Massachusetts South Island Restricted 

Area; Other Massachusetts State Waters.

2 (1 buoy line) Trawls up to and 

including 3 or fewer traps must 

only have one buoy line.

≤600 lb. 

Northern Inshore State; New Hampshire State 

Waters.

No minimum number of traps per 

trawl.

≤600 lb. 

Northern Nearshore and Massachusetts Restricted 

Area and Stellwagen Bank/Jeffreys Ledge Restricted Area; LMA 1 (3–12 miles).

10 ................................................... ≤600 lb. 

Northern Nearshore and LMA1 Restricted Area; LMA 

1 (12+ miles).

20 ................................................... ≤600 lb. 

Northern Inshore State and Massachusetts Restricted Area; LMA1/OC Overlap (0–3 miles).No minimum number of traps per 

trawl.

≤600 lb. 

Northern Inshore State and Massachusetts Restricted Area; OC (0–3 miles).No minimum number of traps per 

trawl.

≤600 lb. 

Northern Nearshore and Massachusetts Restricted 

Area; OC (3–12 miles).

10 ................................................... ≤600 lb. 

Northern Nearshore and Great South Channel Restricted Area; OC (12+ miles).20 ................................................... ≤600 lb. 

Northern Inshore State; Rhode Island State Waters .. No minimum number of traps per 

trawl.

≤600 lb. 

Northern Nearshore, and Massachusetts South Island Restricted Area; LMA 2 (3–12 miles).10 ................................................... ≤600 lb. 

Northern Nearshore, Great South Channel Restricted 

Area; LMA 2 (12+ miles).

20 ................................................... ≤600 lb. 

Northeast Offshore and Great South Channel Restricted Area, and Massachusetts South Island Restricted Area; LMA 2/3 Overlap (12+ miles).20 ................................................... ≤1500 lb (2,000 lb if red crab trap/pot). 

Northeast Offshore waters, Great South Channel Restricted Area, and Massachusetts South Island Restricted Area; LMA 3 (12+ miles).20 ................................................... ≤1500 lb (2,000 lb if red crab trap/pot). 

Southern Nearshore; LMA 4,5,6 ................................. No minimum number of traps per 

trawl.

≤600 lb. 

Southeast U.S. Restricted Area North 3 Florida State 

Waters.

1 ..................................................... ≤200 lb. 

Southeast U.S. Restricted Area North; 3 Georgia 

State Waters.

1 ..................................................... ≤600 lb. 

Southeast U.S. Restricted Area North; 3 South Carolina State Waters.1 ..................................................... ≤600 lb. 

Southeast U.S. Restricted Area North; 3 Federal 

Waters off Florida, Georgia, South Carolina.

1 ..................................................... ≤600 lb. 

1The 6-mile line, pocket waters, and Maine Zones are defined in paragraphs (a)(2)(iii) through (v) of this section. 

2 Massachusetts State waters as defined as paragraph (a)(3)(ii)(E) of this section. 

3See paragraph (f)(1) of this section for description of area. 

(3) Massachusetts Restricted Area—(i) 

Area. The Massachusetts Restricted 

Area is bounded landward by the 

Massachusetts shoreline, from points 

MRA1 through MRA3 bounded seaward 

by the designated Massachusetts state 

waters boundary, and then bounded by 

a rhumb line connecting points MRA3 

through MRA11 in order as detailed in 

table 11 to paragraph (c)(3)(i); 

52020 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

TABLE 11 TO PARAGRAPH (c)(3)(i) 

Point N lat. W long. 

MRA1 ........ 42°52.32′ 70°48.98′ 

MRA2 ........ 42°52.58′ 70°43.94′ 

MRA3 ........ 42°12′ 70°38.69′ 

MRA4 ........ 42°12′ 70°30′ 

MRA5 ........ 42°30′ 70°30′ 

MRA6 ........ 42°30′ 69°45′ 

MRA7 ........ 41°56.5′ 69°45′ 

MRA8 ........ 41°21.5′ 69°16′ 

MRA9 ........ 41°15.3′ 69°57.9′ 

MRA10 ...... 41°20.3′ 70°00′ 

MRA11 ...... 41°40.2′ 70°00′ 

(ii) Closure to fishing with buoy lines. 

From February 1 to April 30, it is 

prohibited to fish with, set, or possess 

trap/pot gear in the area in this 

paragraph (c)(3)(i) of this section unless 

it is fished without buoy lines or with 

buoy lines that are stored on the bottom 

until it can be remotely released for 

hauling, or it is stowed in accordance 

with § 229.2 of this chapter. 

Authorizations for fishing without buoy 

lines must be obtained if such fishing 

would not be in accordance with surface 

marking requirements of §§ 697.21 and 

648.84 of this title or other applicable 

fishery management regulations. The 

minimum number of trap/trawl gear 

configuration requirements specified in 

paragraph (c)(2)(iv) of this section 

remain in effect unless an exemption to 

those requirements is authorized. 

(iii) Area-specific gear or vessel 

requirements. From May 1 through 

January 31, no person or vessel may fish 

with or possess trap/pot gear in the 

Massachusetts Restricted Area unless 

that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed in paragraph (c)(2) 

of this section, or unless the gear is 

stowed as specified in § 229.2. 

(4) South Island Restricted Area—(i) 

Area. The South Island Restricted Area 

is bounded by the following points 

connected by rhumb lines in the order 

listed, and bounded on the north by the 

shoreline of Nantucket, Massachusetts. 

TABLE 12 TO PARAGRAPH (c)(4)(i) 

Point N lat. W long. 

SIRA1 ....................................................................................................................................................................... 41°20.00′ N 71°19.00′ W 

SIRA2 ....................................................................................................................................................................... 41°20.00′ N 69°30.00′ W 

SIRA3 ....................................................................................................................................................................... 40°30.00′ N 69°30.00′ W 

SIRA4 ....................................................................................................................................................................... 40°30.00′ N 71°19.00′ W 

SIRA ......................................................................................................................................................................... 41°20.00′ N 71°19.00′ W 

(ii) Closure to fishing with buoy lines. 

From February 1 to April 30, it is 

prohibited to fish with, set, or possess 

trap/pot gear in the area in paragraph 

(c)(4)(i) of this section unless it is fished 

without buoy lines or with buoy lines 

that are stored on the bottom until they 

can be remotely released for hauling, or 

the trap/pot gear is stowed in 

accordance with § 229.2. Authorizations 

for fishing without buoy lines must be 

obtained if such fishing would not be in 

accordance with surface marking 

requirements of 50 CFR 697.21 and 

648.84. The minimum number of trap/ 

trawl gear configuration requirements 

specified in paragraph (c)(2)(iv) of this 

section remain in effect unless an 

exemption to those requirements is 

authorized. 

(iii) Area-specific gear or vessel 

requirements. From May 1 through 

January 31, no person or vessel may fish 

with or possess trap/pot gear in the 

Massachusetts South Island Restricted 

Area unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed in paragraph (c)(2) 

of this section, or unless the gear is 

stowed as specified in § 229.2. 

(5) Great South Channel Restricted 

Trap/Pot Area—(i) Area. The Great 

South Channel Restricted Trap/Pot Area 

consists of the area bounded by the 

following points. 

TABLE 13 TO PARAGRAPH (c)(5)(i) 

Point N lat. W long. 

GSC1 ....................................................................................................................................................................... 41°40′ 69°45′ 

GSC2 ....................................................................................................................................................................... 41°0′ 69°05′ 

GSC3 ....................................................................................................................................................................... 41°38′ 68°13′ 

GSC4 ....................................................................................................................................................................... 42°10′ 68°31′ 

GSC1 ....................................................................................................................................................................... 41°40′ 69°45′ 

(ii) Closure to fishing with buoy lines. 

From April 1 through June 30, it is 

prohibited to fish with, set, or possess 

trap/pot gear in the area in paragraph 

(c)(5)(i) of this section unless it is fished 

without buoy lines or with buoy lines 

that are stored on the bottom until they 

can be remotely released for hauling, or 

the trap/pot gear is stowed in 

accordance with § 229.2. Authorizations 

for fishing without buoy lines must be 

obtained if such fishing would not be in 

accordance with surface marking 

requirements of 50 CFR 697.21 and 

648.84. 

(iii) Area-specific gear or vessel 

requirements. From July 1 through 

March 31, no person or vessel may fish 

with or possess trap/pot gear in the 

Great South Channel Restricted Trap/ 

Pot Area unless that gear complies with 

the gear marking requirements specified 

in paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed in paragraph (c)(2) 

of this section, or unless the gear is 

stowed as specified in § 229.2. 

(6) Lobster Management Area One 

Restricted Area—(i) Area. The Lobster 

Management Area One Restricted Area 

(LMRA1) is bounded by the following 

points connected by rhumblines in the 

order listed. 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52021 

TABLE 14 TO PARAGRAPH (c)(6)(i) 

Point N lat. W long. 

LMA1RA 1 ............................................................................................................................................................... 43°06′ 69°36.77′ 

LMA1RA 2 ............................................................................................................................................................... 43°44′ 68°21.6′ 

LMA1RA 3 ............................................................................................................................................................... 43°32.68′ 68°17.27′ 

LMA1RA 4 ............................................................................................................................................................... 42°53.52′ 69°32.16′ 

LMA1RA 1 ............................................................................................................................................................... 43°06′ 69°36.77′ 

(ii) Restrictions to fishing with buoy 

lines. From October 1 to January 31, it 

is prohibited to fish with, set, or possess 

trap/pot gear in the area in paragraph 

(c)(6)(i) of this section unless it is fished 

without buoy lines or with buoy lines 

that are stored on the bottom until they 

can be remotely released for hauling, or 

the trap/pot gear is stowed in 

accordance with § 229.2. Authorizations 

for fishing without buoy lines must be 

obtained if such fishing would not be in 

accordance with surface marking 

requirements of 50 CFR 697.21 and 

648.84. The minimum number of trap/ 

trawl gear configuration requirements 

specified in paragraph (c)(2)(iv) of this 

section remain in effect unless an 

exemption to those requirements is 

authorized. 

(iii) Area-specific gear or vessel 

requirements. From February 1 through 

September 30, no person or vessel may 

fish with or possess trap/pot gear in the 

LMA 1 Restricted Area unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, and the 

area-specific requirements listed in 

paragraph (c)(2) of this section, or 

unless the gear is stowed as specified in 

§ 229.2. 

(7) Stellwagen Bank/Jeffreys Ledge 

Restricted Area—(i) Area. The 

Stellwagen Bank/Jeffreys Ledge 

Restricted Area includes all Federal 

waters of the Gulf of Maine, except 

those designated as the Massachusetts 

Restricted Area in paragraph (c)(3) of 

this section, that lie south of 43°15′ N 

lat. and west of 70°00′ W long. 

(ii) Year round area-specific gear or 

vessel requirements. No person or vessel 

may fish with or possess trap/pot gear 

in the Stellwagen Bank/Jeffreys Ledge 

Restricted Area unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, and the 

area-specific requirements listed in 

paragraph (c)(2) of this section, or 

unless the gear is stowed as specified in 

§ 229.2. 

(8) Georges Basin Restricted Area (i) 

Area. The Georges Basin Restricted Area 

(GBRA) referred to in paragraph 

(c)(2)(iv) of this section is bounded by 

rhumb lines connecting the following 

points in the order listed in table 15 to 

paragraph (c)(8)(i). 

TABLE 15 TO PARAGRAPH (c)(8)(i) 

Point N lat. W long. 

GBRA 1 .................................................................................................................................................................... 42°03.00′ 67°40.02′ 

GBRA 2 .................................................................................................................................................................... 42°30.00′ 67°40.02′ 

GBRA 3 .................................................................................................................................................................... 42°30.00′ 67°27.00′ 

GBRA 4 .................................................................................................................................................................... 42°09.30′ 67°08.70′ 

GBRA 1 .................................................................................................................................................................... 42°03.00′ 67°40.02′ 

(iii) Area-specific gear or vessel 

requirements. Beginning May 1 2022, no 

person or vessel may fish with or 

possess trap/pot gear in the Georges 

Basin Restricted Area unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, and the 

area-specific requirements listed in 

paragraph (c)(2) of this section, or 

unless the gear is stowed as specified in 

§ 229.2. 

(9) South Georges 50 Fathom 

Restricted Area—(i) Area. The South 

Georges 50 Fathom Restricted Area 

curve line referred to in paragraph 

(c)(2)(iv) of this section is an area 

bounded in the south by the 40 degree 

southern border of the Northeast Region, 

bounded seaward by the EEZ, and 

bounded in the north by rhumb lines 

connecting the following points in the 

order listed in table 16 to paragraph 

(c)(9)(i). 

TABLE 16 TO PARAGRAPH (c)(9)(i) 

Point N lat. W long. 

SGRA 1 .................................................................................................................................................................... 40°00.00′ 71°49.86′ 

SGRA 2 .................................................................................................................................................................... 40°06.47′ 71°24.69′ 

SGRA 3 .................................................................................................................................................................... 40°06.49′ 71°24.62′ 

SGRA 4 .................................................................................................................................................................... 40°20.82′ 71°03.52′ 

SGRA 5 .................................................................................................................................................................... 40°20.89′ 71°03.42′ 

SGRA 6 .................................................................................................................................................................... 40°21.16′ 70°35.17′ 

SGRA 7 .................................................................................................................................................................... 40°21.16′ 70°35.02′ 

SGRA 8 .................................................................................................................................................................... 40°16.84′ 70°07.34′ 

SGRA 9 .................................................................................................................................................................... 40°16.81′ 70°07.17′ 

SGRA 10 .................................................................................................................................................................. 40°09.92′ 69°40.43′ 

SGRA 11 .................................................................................................................................................................. 40°09.87′ 69°40.25′ 

SGRA 12 .................................................................................................................................................................. 40°14.72′ 69°12.77′ 

52022 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

TABLE 16 TO PARAGRAPH (c)(9)(i)—Continued 

Point N lat. W long. 

SGRA 13 .................................................................................................................................................................. 40°14.74′ 69°12.63′ 

SGRA 14 .................................................................................................................................................................. 40°19.83′ 68°45.19′ 

SGRA 15 .................................................................................................................................................................. 40°19.86′ 68°45.05′ 

SGRA 16 .................................................................................................................................................................. 40°31.55′ 68°21.25′ 

SGRA 17 .................................................................................................................................................................. 40°31.63′ 68°21.10′ 

SGRA 18 .................................................................................................................................................................. 40°34.09′ 67°52.94′ 

SGRA 19 .................................................................................................................................................................. 40°34.11′ 67°52.76′ 

SGRA 20 .................................................................................................................................................................. 40°38.45′ 67°24.98′ 

SGRA 21 .................................................................................................................................................................. 40°38.46′ 67°24.90′ 

SGRA 22 .................................................................................................................................................................. 40°50.05′ 67°00.91′ 

SGRA 23 .................................................................................................................................................................. 40°50.14′ 67°00.73′ 

SGRA 24 .................................................................................................................................................................. 41°00.10′ 66°35.45′ 

SGRA 25 .................................................................................................................................................................. 41°00.21′ 66°35.18′ 

SGRA 26 .................................................................................................................................................................. 41°14.84′ 66°21.82′ 

(ii) Area-specific gear or vessel 

requirements. Beginning May 1, 2022, 

no person or vessel may fish with or 

possess trap/pot gear in the South 

Georges 50 Fathom Restricted Area 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed in paragraph (c)(2) 

of this section, or unless the gear is 

stowed as specified in § 229.2. 

(10) Offshore Trap/Pot Waters Area— 

(i) Area. The Offshore Trap/Pot Waters 

Area includes all Federal waters of the 

EEZ Offshore Management Area known 

as Lobster Management Area 3, 

including the area known as the Area 2/ 

3 Overlap and Area 3/5 Overlap as 

defined in the American Lobster Fishery 

regulations at 50 CFR 697.18, with the 

exception of the Great South Channel 

Restricted Trap/Pot Area, Southeast 

Restricted Area, Georges Basin 

Restricted Area, South Georges 50 

Fathom Restricted Area, and extending 

south along the 100-fathom (600-ft or 

182.9-m) depth contour from 35°14′ N 

lat. South to 27°51′ N lat., and east to 

the eastern edge of the EEZ. 

(ii) Year-round area-specific gear or 

vessel requirements. No person or vessel 

may fish with or possess trap/pot gear 

in the Northeast Region portion of 

Offshore Trap/Pot Waters Area that 

overlaps an area from the U.S./Canada 

border south to a straight line from 

41°18.2′ N lat., 71°51.5′ W long. (Watch 

Hill Point, RI) south to 40°00′ N lat., and 

then east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed in paragraph (c)(2) 

of this section, or unless the gear is 

stowed as specified in § 229.2. 

(iii) Seasonal area-specific gear or 

vessel requirements. From September 1 

to May 31, no person or vessel may fish 

with or possess trap/pot gear in the 

Offshore Trap/Pot Waters Area that 

overlaps an area bounded on the north 

by a straight line from 41°18.2′ N lat., 

71°51.5′ W long. (Watch Hill Point, RI) 

south to 40°00′ N lat. and then east to 

the eastern edge of the EEZ, and 

bounded on the south by a line at 32°00′ 

N lat., and east to the eastern edge of the 

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

(iv) Seasonal area-specific gear or 

vessel requirements. From November 15 

to April 15, no person or vessel may fish 

with or possess trap/pot gear in the 

Offshore Trap/Pot Waters Area that 

overlaps an area from 32°00′ N lat. south 

to 29°00′ N lat. and east to the eastern 

edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, the areaspecific requirements in paragraph (c)(2) 

of this section or unless the gear is 

stowed as specified in § 229.2. 

(v) Seasonal area-specific gear or 

vessel requirements. From December 1 

to March 31, no person or vessel may 

fish with or possess trap/pot gear in the 

Offshore Trap/Pot Waters Area that 

overlaps an area from 29°00′ N lat. south 

to 27°51′ N lat. and east to the eastern 

edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, the areaspecific requirements in paragraph (c)(2) 

in this section, or unless the gear is 

stowed as specified in § 229.2. 

(11) Northern Inshore State Trap/Pot 

Waters Area—(i) Area. The Northern 

Inshore State Trap/Pot Waters Area 

includes the state waters of Rhode 

Island, Massachusetts, New Hampshire, 

and Maine, with the exception of 

Massachusetts Restricted Area and those 

waters exempted under paragraph (a)(3) 

of this section. Federal waters west of 

70°00′ N lat. in Nantucket Sound are 

also included in the Northern Inshore 

State Trap/Pot Waters Area. 

(ii) Year-round area-specific gear or 

vessel requirements. No person or vessel 

may fish with or possess trap/pot gear 

in the Northern Inshore State Trap/Pot 

Waters Area unless that gear complies 

with the gear marking requirements 

specified in paragraph (b) of this 

section, the universal trap/pot gear 

requirements specified in paragraph 

(c)(1) of this section, the area-specific 

requirements in paragraph (c)(2) of this 

section or unless the gear is stowed as 

specified in § 229.2. 

(12) Northern Nearshore Trap/Pot 

Waters Area—(i) Area. The Northern 

Nearshore Trap/Pot Waters Area 

includes all Federal waters of EEZ 

Nearshore Management Area 1, Area 2, 

and the Outer Cape Lobster 

Management Area (as defined in the 

American Lobster Fishery regulations at 

50 CFR 697.18), with the exception of 

the Great South Channel Restricted 

Trap/Pot Area, Massachusetts Restricted 

Area, Stellwagen Bank/Jeffreys Ledge 

Restricted Area, and Federal waters 

west of 70°00′ N lat. in Nantucket Sound 

(included in the Northern Inshore State 

Trap/Pot Waters Area) and those waters 

exempted under paragraph (a)(3) of this 

section. 

(ii) Year-round area-specific gear or 

vessel requirements. No person or vessel 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 52023 

may fish with or possess trap/pot gear 

in the Northern Nearshore Trap/Pot 

Waters Area unless that gear complies 

with the gear marking requirements 

specified in paragraph (b) of this 

section, the universal trap/pot gear 

requirements specified in paragraph 

(c)(1) of this section, the area-specific 

requirements in paragraph (c)(2) of this 

section, or unless the gear is stowed as 

specified in § 229.2. 

(13) Southern Nearshore Trap/Pot 

Waters Area—(i) Area. The Southern 

Nearshore Trap/Pot Waters Area 

includes all state and Federal waters 

that fall within EEZ Nearshore 

Management Area 4, EEZ Nearshore 

Management Area 5, and EEZ Nearshore 

Management Area 6 (as defined in the 

American Lobster Fishery regulations in 

§ 697.18 of this title, and excluding the 

Area 3/5 Overlap), and inside the 100- 

fathom (600-ft or 182.9-m) depth 

contour line from 35°30′ N lat. south to 

27°51′ N lat. and extending inshore to 

the shoreline or exemption line, with 

the exception of those waters exempted 

under paragraph (a)(3) of this section 

and those waters in the Southeast 

Restricted Area defined in paragraph 

(f)(1) of this section. 

(ii) Year-round area-specific gear or 

vessel requirements. No person or vessel 

may fish with or possess trap/pot gear 

in the Southern Nearshore Trap/Pot 

Waters Area that is east of a straight line 

from 41°18.2′ N lat., 71°51.5′ W long. 

(Watch Hill Point, RI) south to 40°00′ N 

lat., unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

(iii) Seasonal area-specific gear or 

vessel requirements. From September 1 

to May 31, no person or vessel may fish 

with or possess trap/pot gear in the 

Southern Nearshore Trap/Pot Waters 

Area that overlaps an area bounded on 

the north by a straight line from 41°18.2′ 

N lat., 71°51.5′ W long. (Watch Hill 

Point, RI) south to 40°00′ N lat. and then 

east to the eastern edge of the EEZ, and 

bounded on the south by 32°00′ N lat., 

and east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements in 

paragraph (c)(1) of this section, the areaspecific requirements in paragraph (c)(2) 

of this section or unless the gear is 

stowed as specified in § 229.2. 

(iv) Seasonal area-specific gear or 

vessel requirements. From November 15 

to April 15, no person or vessel may fish 

with or possess trap/pot gear in the 

Southern Nearshore Trap/Pot Waters 

Area that overlaps an area from 32°00′ 

N lat. south to 29°00′ N lat. and east to 

the eastern edge of the EEZ, unless that 

gear complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, the areaspecific requirements in paragraph (c)(2) 

of this section or unless the gear is 

stowed as specified in § 229.2. 

(v) Seasonal area-specific gear or 

vessel requirements. From December 1 

to March 31, no person or vessel may 

fish with or possess trap/pot gear in the 

Southern Nearshore Trap/Pot Waters 

Area that overlaps an area from 29°00′ 

N lat. south to 27°51′ N lat. and east to 

the eastern edge of the EEZ, unless that 

gear complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, the areaspecific requirements in paragraph (c)(2) 

of this section or unless the gear is 

stowed as specified in § 229.2. 

(14) Restrictions applicable to the red 

crab trap/pot fishery—(i) Area. The red 

crab trap/pot fishery is regulated in the 

waters identified in paragraphs (c)(10)(i) 

and (c)(14)(i) of this section. 

(ii) Year-round area-specific gear or 

vessel requirements. No person or vessel 

may fish with or possess red crab trap/ 

pot gear in the area identified in 

paragraph (c)(14)(i) of this section that 

overlaps an area from the U.S./Canada 

border south to a straight line from 41° 

18.2′ N lat., 71°51.5′ W long. (Watch Hill 

Point, RI) south to 40°00′ N lat., and 

then east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

(iii) Seasonal area-specific gear or 

vessel requirements. From September 1 

to May 31, no person or vessel may fish 

with or possess red crab trap/pot gear in 

the area identified in paragraph 

(c)(14)(i) of this section that overlaps an 

area bounded on the north by a straight 

line from 41°18.2′ N lat., 71°51.5′ W 

long. (Watch Hill Point, RI) south to 

40°00′ N lat. and then east to the eastern 

edge of the EEZ, and bounded on the 

south by a line at 32°00′ N lat., and east 

to the eastern edge of the EEZ, unless 

that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

(iv) Seasonal area-specific gear or 

vessel requirements. From November 15 

to April 15, no person or vessel may fish 

with or possess red crab trap/pot gear in 

the area identified in paragraph 

(c)(14)(i) of this section that overlaps an 

area from 32°00′ N lat. south to 29°00′ 

N lat. and east to the eastern edge of the 

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

(v) Seasonal area-specific gear or 

vessel requirements. From December 1 

to March 31, no person or vessel may 

fish with or possess red crab trap/pot 

gear in the area identified in paragraph 

(c)(14)(i) of this section that overlaps an 

area from 29°00′ N lat. south to 27°51′ 

N lat. and east to the eastern edge of the 

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

in paragraph (c)(2) of this section or 

unless the gear is stowed as specified in 

§ 229.2. 

PART 697—ATLANTIC COASTAL 

FISHERIES COOPERATIVE 

MANAGEMENT 

■ 4. The authority citation for 50 CFR 

part 697 continues to read as follows: 

Authority: 16 U.S.C. 5101 et seq. 

■ 5. In § 697.21, revise paragraphs (b)(2) 

and (3) to read as follows: 

§ 697.21 Gear identification and marking, 

escape vent, maximum trap size, and ghost 

panel requirements. 

* * * * * 

(b) * * * 

(2) With the exception of Maine 

permitted vessels fishing in Maine 

Lobster Management Zones that can fish 

up to ten lobster traps on a trawl with 

one buoy line, lobster trap trawls 

consisting of more than three traps must 

have a radar reflector and a single flag 

or pennant on the westernmost end 

(marking the half compass circle from 

magnetic south through west, to and 

including north), while the easternmost 

end (meaning the half compass circle 

52024 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

from magnetic north through east, to 

and including south) of an American 

lobster trap trawl must be configured 

with a radar reflector only. Standard 

tetrahedral corner radar reflectors of at 

least 8 inches (20.32 cm) (both in height 

and width, and made from metal) must 

be employed. (A copy of a diagram 

showing a standard tetrahedral corner 

radar reflector is available upon request 

to the Office of the Greater Atlantic 

Regional Administrator.) 

(3) No American lobster trap trawl 

shall exceed 1.5 nautical miles (2.78 

km) in length, as measured from radar 

reflector to radar reflector, except in the 

EEZ Offshore Management Area 3 where 

the maximum length of a lobster trap 

trawl shall not exceed 1.75 nautical 

miles (3.24 km). 

* * * * * 

[FR Doc. 2021–19040 Filed 9–16–21; 8:45 am] 

BILLING CODE 3510–22–P