[Federal Register Volume 72, Number 193 (Friday, October 5, 2007)]
[Rules and Regulations]
[Pages 57104-57194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4904]



[[Page 57103]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 229, 635, and 648



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

Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules 
and Regulations

[[Page 57104]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229, 635, and 648

[Docket No. 0612242977-7216-01; I.D. 120304D]
RIN 0648-AS01


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations 
implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP). 
This final rule revises the management measures for reducing the 
incidental mortality and serious injury to the Northern right whale 
(Eubalaena glacialis), humpback whale (Megaptera novaeangliae), and fin 
whale (Balaenoptera physalus) in commercial fisheries to meet the goals 
of the Marine Mammal Protection Act (MMPA) and the Endangered Species 
Act (ESA). The measures identified in the ALWTRP are also intended to 
benefit minke whales (Balaenoptera acutorostrata), which are not 
strategic, but are known to be taken incidentally in commercial 
fisheries. This final rule implements additional regulations for the 
fisheries currently covered by the ALWTRP (the Northeast sink gillnet, 
Northeast/Mid-Atlantic American lobster trap/pot, Mid-Atlantic gillnet, 
Southeast Atlantic gillnet, and Southeastern U.S. Atlantic shark 
gillnet fisheries) and regulates several fisheries from the MMPA List 
of Fisheries for the first time under the ALWTRP, including the 
following: Northeast anchored float gillnet, Northeast drift gillnet, 
Atlantic blue crab, and Atlantic mixed species trap/pot fisheries 
targeting crab (red, Jonah, and rock), hagfish, finfish (black sea 
bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), and 
white hake), conch/whelk, and shrimp.

DATES: The amendments to Sec. Sec.  229.2, 229.3, and 648.264(a)(6)(i) 
are effective April 5, 2008 and the amendment to Sec.  635.69(a)(3) is 
effective November 5, 2007.
    As specified in the regulatory text section of this document, 
amendments to Sec.  229.32 are effective as follows:
    <bullet> Paragraphs (f) introductory text, (f)(2), and (f)(3) are 
revised effective November 5, 2007;
    <bullet> Amendments to Sec.  229.32(f)(1)(iii) and 
(g)(4)(i)(B)(1)(vi) are added effective November 5, 2007 to April 5, 
2008;
    <bullet> Paragraphs (f)(1)(ii) and (g)(4)(i)(B)(1)(iii) are removed 
and reserved effective November 5, 2007;
    <bullet> Subsequent revision of Sec.  229.32 is effective April 5, 
2008 except for paragraphs (c)(5)(ii)(B), (c)(6)(ii)(B), (c)(7)(ii)(C), 
(c)(8)(ii)(B), (c)(9)(ii)(B), (d)(6)(ii)(D), and (d)(7)(ii)(D), which 
will be effective October 5, 2008.

ADDRESSES: Copies of the Final Environmental Impact Statement/
Regulatory Impact Review for this action can be obtained from the 
ALWTRP Web site listed under the Electronic Access portion of this 
document. Atlantic Large Whale Take Reduction Team (ALWTRT) meeting 
summaries, progress reports on implementation of the ALWTRP, and the 
small entity compliance guide may be obtained by writing Diane 
Borggaard, NMFS, Northeast Region, 1 Blackburn Drive, Gloucester, MA 
01930. For additional ADDRESSES and Web sites for document availability 
see SUPPLEMENTARY INFORMATION section.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to Mary Colligan, Assistant Regional 
Administrator for Protected Resources, National Marine Fisheries 
Service, Northeast Region, 1 Blackburn Drive, Gloucester, MA 01930 and 
by e-mail to <a href="/cdn-cgi/l/email-protection#7b3f1a0d121f242914080f101e093b141619551e140b551c140d"><span class="__cf_email__" data-cfemail="175376617e7348457864637c726557787a753972786739707861">[email protected]</span></a>, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9300 Ext. 6503, <a href="/cdn-cgi/l/email-protection#d2b6bbb3bcb7fcb0bda0b5b5b3b3a0b692bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="f19598909f94df939e83969690908395b19f9e9090df969e87">[email protected]</span></a>; Kristy Long, 
NMFS, Office of Protected Resources, 301-713-2322, 
<a href="/cdn-cgi/l/email-protection#3a514853494e43145655545d7a54555b5b145d554c"><span class="__cf_email__" data-cfemail="1e756c776d6a6730727170795e70717f7f30797168">[email protected]</span></a>; or Barb Zoodsma, NMFS, Southeast Region, 904-321-
2806, <a href="/cdn-cgi/l/email-protection#60020112024e1a0f0f04130d01200e0f01014e070f16"><span class="__cf_email__" data-cfemail="dcbebdaebef2a6b3b3b8afb1bd9cb2b3bdbdf2bbb3aa">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP Web site 
at http://www.nero.noaa.gov/whaletrp/. Copies of the most recent marine 
mammal stock assessment reports may be obtained by writing to Dr. 
Richard Merrick, NMFS, 166 Water Street, Woods Hole, MA 02543 or can be 
downloaded from the Internet at http://www.nefsc.noaa.gov/psb/assesspdfs.htm. The complete text of the regulations implementing the 
ALWTRP can be found either in the Code of Federal Regulations (CFR) at 
50 CFR 229.32 or downloaded from the Web site, along with a guide to 
the regulations.

Background

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

Changes to the Boundaries and Seasons

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

[[Page 57105]]

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

Changes to the Lobster Trap/Pot Gear Requirements

Northern Inshore State and Nearshore Trap/Pot Waters, Cape Cod Bay 
Restricted Area (May 16-December 31), Stellwagen Bank/Jeffreys Ledge 
Restricted Area, and Great South Channel Restricted Area (Nearshore 
Portion)

    The regulations for Northern Nearshore Trap/Pot Waters, Stellwagen 
Bank/Jeffreys Ledge Restricted Area, and the Federal portion of the 
Cape Cod Bay Restricted Area (May 16-December 31) will continue to 
require one buoy line on trawls of 5 or fewer traps.
    For Northern Inshore State Trap/Pot Waters and the state portion of 
the Cape Cod Bay Restricted Area (May 16-December 31), this final rule 
will eliminate the Lobster Take Reduction Technology List (i.e., a list 
of gear modification options) and require a 600-lb (272.2-kg) weak link 
on all flotation devices and/or weighted devices (except traps/pots, 
anchors, and leadline woven into the buoy line) attached to the buoy 
line (effective April 7, 2008).
    This final rule will also lower the weak link breaking strength on 
all flotation devices and/or weighted devices attached to the buoy line 
in the nearshore portion of the Great South Channel Restricted Area 
that overlaps with Lobster Management Area (LMA) 2 and the Outer Cape 
(July 1-March 31) from 2,000 lb (907.2 kg) to 600 lb (272.2 kg) 
(effective April 7, 2008). All fishermen in the nearshore portion of 
the Great South Channel Restricted Area will then be required to have a 
600-lb (272.2-kg) weak link on all flotation devices and/or weighted 
devices (except traps/pots, anchors, and leadline woven into the buoy 
line) attached to the buoy line.

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

    This final rule will extend the southern boundary of the Offshore 
Trap/Pot Waters Area by following the 100-fathom (600-ft or 182.9-m) 
line from 35[deg]30' N. lat. (just north of Cape Hatteras, NC) to 
27[deg]51' N. lat. and then extending out to the eastern edge of the 
EEZ (effective April 7, 2008). In addition to the current requirements, 
this final rule will lower the maximum breaking strength of weak links 
and require weak links with appropriate breaking strength on all 
flotation devices and/or weighted devices (except traps/pots, anchors, 
and leadline woven into the buoy line) attached to the buoy line in 
Offshore Trap/Pot Waters that overlaps with the LMA 3 (including the 
area known as the Area 2/3 Overlap and Area 3/5 Overlap) and the 
offshore portion of the Great South Channel Restricted Area that 
overlaps with the LMA 2/3 overlap and LMA 3 Areas from 2,000 lb (907.2 
kg) to 1,500 lb (680.4 kg) (effective April 7, 2008).

Southern Nearshore Trap/Pot Waters Area

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

Changes to the Other Trap/Pot Gear Requirements

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

Red Crab Trap/Pot Gear

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

Changes to the All Trap/Pot Gear Requirements

Broad-Based Gear Modifications

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

[[Page 57106]]

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

ALWTRP-Regulated Trap/Pot Waters

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

Boundaries and Seasons

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

Sinking/Neutrally Buoyant Groundlines

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

Weak Links

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

Changes to the Gillnet Gear Requirements

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

Anchored Gillnets
    Under this final rule, NMFS will require an 1,100-lb (499.0-kg) 
weak link on all flotation devices and/or weighted devices (except 
gillnets, anchors, and leadline woven into the buoy line) attached to 
the buoy line (effective April 7, 2008). For anchored gillnets in the 
Northeast sink gillnet fishery, NMFS will also require an increase in 
the number of weak links per gillnet net panel from one weak link with 
a maximum breaking strength of 1,100 lb (499.0 kg) to five or more weak 
links with a maximum breaking strength of 1,100 lb (499.0 kg), 
depending on the length of the gillnet net panel (effective April 7, 
2008). The weak link requirement will apply to all variations in panel 
size. For example, gillnet net panels of 50 fathoms (300 ft or 91.4 m) 
or less in length, will be required to have one weak link in the 
floatline at the center of the gillnet net panel. For gillnet net 
panels greater than 50 fathoms (300 ft or 91.4 m), weak links will be 
placed continuously along the floatline separated by a maximum distance 
of 25 fathoms (150 ft or 45.7 m). For all variations in panel size, the 
following weak link requirements will apply: (1) Weak links will be 
placed in the center of each of the up and down lines at each end of 
each gillnet net panel, and (2) one floatline weak link will be placed 
as close as possible to each end of the gillnet net panel just before 
the floatline meets the up and down line. Up and down line means the 
line that connects the floatline and leadline at the end of each 
gillnet net panel.
    In addition to the above configuration for gillnet net panel weak 
links, NMFS will allow the following option for all variations in panel 
size: (1) Weak links will be placed in the center of each of the up and 
down lines at each end of each gillnet net panel, (2) weak links will 
be placed between the floatline tie loops between gillnet net panels, 
and (3) weak links will be placed between the floatline tie loop and 
bridle or buoy line at each end of a net string (depending on how the 
gear is configured) (see Figure 3). Tie loops mean the loops on a 
gillnet net panel used to connect gillnet net panels to the buoy line, 
groundline, bridle, or each other. NMFS will also be allowing the 
optional configuration in the current SAM areas, as well as in 
established DAM zones when a gear modification option is selected 
(effective November 5, 2007). See the Changes from Proposed Rule 
section (6) below for further information on the rationale for this 
optional configuration, as well as for allowing it in the current SAM 
areas and established DAM zones.
    For the above configuration options, weak links must be chosen from 
the following combinations approved by NMFS: Plastic weak links or rope 
of appropriate breaking strength. If rope of appropriate breaking 
strength is used throughout the floatline or as the up and down line, 
or if no up and down line is present, then individual weak links are 
not required on the floatline or up and down line. In addition, all 
anchored gillnets, regardless of the number of gillnet net panels, will 
be required to be securely anchored with the holding

[[Page 57107]]

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

Mid/South Atlantic Gillnet Waters

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

Anchored Gillnets

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

Drift Gillnets

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

Other Southeast Gillnet Waters

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

Southeast Atlantic Gillnet Fishery

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

[[Page 57108]]

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

Southeastern U.S. Atlantic Shark Gillnet Fishery

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

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

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

Changes to the Other Gillnet Gear Requirements

Northeast Anchored Float Gillnet Fishery

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

Northeast Drift Gillnet Fishery

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

Changes to the All Gillnet Gear Requirements

Broad-Based Gear Modifications

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

Boundaries and Seasons

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

[[Page 57109]]

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

Sinking/Neutrally Buoyant Groundlines

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

Weak Links

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

Revised SAM Program

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

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

Revised SAM Gear Modifications

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

Changes to the SAM Program for All Trap/Pot Gear

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

[[Page 57110]]

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

Changes to the SAM Program for Gillnet Gear

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

Other Changes for All Trap/Pot and Gillnet Gear

DAM Program

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

Groundlines

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

Gear Marking

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

Trap/Pot Gear Marking Colors

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

Gillnet Gear Marking Colors

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

[[Page 57111]]

Exempted Waters

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

Coastal Exempted Waters

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

Offshore Exempted Areas

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

Regulatory Language Changes

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

Weak Links

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

[[Page 57112]]

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

Groundlines

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

Other Regulatory Language Changes

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

Gillnet Take Reduction Technology List

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

Anchoring Clarification

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

SAM Clarification

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

Terminology

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

Definitions

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

Prohibitions

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

[[Page 57113]]

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

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

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

Comments and Responses

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

General Comments

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

[[Page 57114]]

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

[[Page 57115]]

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

[[Page 57116]]

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

[[Page 57117]]

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

[[Page 57118]]

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

[[Page 57119]]

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

[[Page 57120]]

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

General Comments on Proposed Alternatives

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

[[Page 57121]]

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

Comments Specific to Each Alternative

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

[[Page 57122]]

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

[[Page 57123]]

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

[[Page 57124]]

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

Comments on Exemption Lines/Areas

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

[[Page 57125]]

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

Comments on Proposed Exemption Lines in Maine

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

[[Page 57126]]

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

[[Page 57127]]

than estimated in the EIS would be affected.

Comments on Right Whale Critical Habitat

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

Comments on Closed Areas

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

[[Page 57128]]

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

Comments on SAM and DAM

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

[[Page 57129]]

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

[[Page 57130]]

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

[[Page 57131]]

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

Comments on Effective Date

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

[[Page 57132]]

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

Comments on Groundline

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

[[Page 57133]]

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

[[Page 57134]]

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

[[Page 57135]]

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

[[Page 57136]]

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

[[Page 57137]]

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

[[Page 57138]]

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

Comments on Low Profile

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

[[Page 57139]]

Comments on Gear Marking

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

[[Page 57140]]

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

[[Page 57141]]

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

Comments on Weak Links

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

[[Page 57142]]

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

[[Page 57143]]

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

[[Page 57144]]

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

Comments on Vertical Lines (or Buoy Lines)

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

[[Page 57145]]

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

[[Page 57146]]

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

Comments on Gillnets

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

[[Page 57147]]

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

Comments Specific to Certain Fisheries/Additional Fisheries Under the 
ALWTRP

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

[[Page 57148]]

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

[[Page 57149]]

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

[[Page 57150]]

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

[[Page 57151]]

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

Comments on Enforcement

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

[[Page 57152]]

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

[[Page 57153]]

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

Comments on the Shipping Industry and/or Ship Strikes

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

[[Page 57154]]

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

Comments on Gear Reduction

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

[[Page 57155]]

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

Comments Regarding Canadian Gear/Fisheries

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

Comments on the Number of Traps per Trawl

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

[[Page 57156]]

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

Comments on Vessel Anchoring Systems

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

Comments on Research

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

[[Page 57157]]

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

[[Page 57158]]

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

Comments on Economic and Social Impacts (of the ALWTRP)

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

[[Page 57159]]

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

[[Page 57160]]

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

[[Page 57161]]

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

Comments on Other Species

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

[[Page 57162]]

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

Comments on Definitions

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

[[Page 57163]]

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

Clarification Requests for the FEIS

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

[[Page 57164]]

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

Changes From the Proposed Rule

    NMFS made the following changes from the proposed rule published on 
June 21, 2005 (70 FR 35984, June 21, 2005) to the final rule:
    (1) The proposed rule requirement for sinking and/or neutrally 
buoyant groundline by January 1, 2008, for trap pot gear (70 FR 35900, 
June 21, 2005) and gillnet gear (70 FR 35904, June 21, 2005) (unless 
otherwise required in the Cape Cod Bay Restricted Area for trap/pot 
(January 1-May 15) or SAM areas) is modified in this final rule to be 
effective twelve months after publication of the final rule. NMFS 
believes that the January 1, 2008, deadline will not give fishermen 
time to comply with this requirement. Typically, NMFS provides 30 or 60 
days for fishermen to comply with gear modifications such as mesh size 
restrictions and other requirements. However, as evident by 
overwhelming public comment, given the magnitude of the time and 
resources needed by fishermen to change their gear to sinking and/or 
neutrally buoyant groundline requirement, NMFS believes giving 
fishermen 12 months from the publication of the final rule to comply is 
warranted.
    Although the broad-based sinking/neutrally buoyant groundline 
requirement will become effective on October 6, 2008 (except in the 
Cape Cod Bay Restricted Area for trap/pot (January 1-May 15) and 
expanded SAM areas), NMFS believes the time frame allowed for this 
requirement will not compromise conservation efforts. As stated in the 
proposed rule, NMFS believes that fishermen will begin changing over 
their gear prior to the effective date as fishermen replace their 
groundline as it naturally wears out and due to previous or planned 
groundline exchange programs.
    The early changeover is also likely to continue particularly in the 
northeast as fishermen respond to gear modifications required by the 
implementation of SAM and DAM programs, which require seasonal or 
temporary use of non-floating groundline. For example, some fishermen 
may choose to fish with SAM and/or DAM compliant gear year round, or at 
least during the months when SAM areas are in effect and DAM zones are 
most likely to be triggered, rather than having to change their gear 
over when a SAM area is effective or remove it

[[Page 57165]]

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

[[Page 57166]]

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

[[Page 57167]]

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

[[Page 57168]]

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

Classification

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

[[Page 57169]]

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

[[Page 57170]]

changes, including: (1) Expanding exempted waters off of Maine and Long 
Island Sound; (2) allowing anchored gillnet vessels to use an alternate 
weak link configuration; and (3) allowing anchored gillnet vessels 
operating within 300 yards (900 ft or 274.3 m) of the shoreline of 
North Carolina to use an alternate anchoring configuration. These and 
other minor variations decrease the number of affected vessels and 
result in reductions in compliance costs, while sacrificing little in 
terms of entanglement risk reduction.
    The small entities affected by this final rule are commercial trap/
pot and gillnet fisherman operating in Northeast Atlantic, Mid-
Atlantic, and Southeast Atlantic waters. The analysis of the final 
preferred alternative identified approximately 4,350 vessels that would 
be affected by this final rule (this number does not include 
Southeastern U.S. Atlantic shark gillnet vessels, as the analysis for 
this action concluded that these vessels would not incur significant 
compliance costs).
    In the lobster trap/pot fishery, approximately 2,900 vessels would 
be affected. The analysis identified 11 vessel segments that can be 
considered ``heavily affected'', where estimated compliance costs 
exceeded 15 percent of average annual revenues. Nearly all of these 
segments are composed of smaller (Class I or Class II) vessels, which 
typically have a smaller revenue base with which to absorb compliance 
costs. Seven of these segments represent lobster/trap vessels.
    Approximately 1,980 other vessels fell into the ``at-risk vessel'' 
category, where estimated compliance costs were between 5 and 15 
percent of average annual revenues. The majority of at-risk vessels are 
Class II lobster vessels; of these, the most affected subsets are 
vessels in Maine, which are estimated to have greater gear loss costs. 
A variety of other vessels fall in the at-risk range, including 
northern nearshore lobster vessels, several categories of other trap/
pot vessels (e.g., black sea bass, hagfish, red crab), and Class I 
gillnet vessels in the Mid-Atlantic.
    This final rule contains collection of information requirements 
subject to the Paperwork Reduction Act (PRA), because of the proposed 
gear marking scheme. The proposed collection of information requirement 
was submitted to the Office of Management and Budget (OMB) for 
approval, and is still under review. Once the information collection 
has been approved, NMFS will publish a Federal Register notice 
providing the OMB approval control number. Public comment was sought 
regarding whether this proposed collection of information is necessary 
for the proper performance and function of the agency, including: The 
practical utility of the information; the accuracy of the burden 
estimate; the opportunities to enhance the quality, utility, and 
clarity of the information to be collected; and the ways to minimize 
the burden of the collection of information, including the use of 
automated collection techniques or other forms of information 
technology. Send comments regarding this burden estimate, or any other 
aspect of this data collection, including suggestions for reducing the 
burden, to NMFS (see ADDRESSES) and by e-mail to <a href="/cdn-cgi/l/email-protection#2f6b4e59464b707d405c5b444a5d6f40424d014a405f01484059"><span class="__cf_email__" data-cfemail="377356415e5368655844435c524577585a551952584719505841">[email protected]</span></a>, or fax to 202-395-7285.
    This collection of information requirement applies to a total of 
2,695 newly affected vessels, including 64 model vessel types. Model 
vessel types were developed for gillnet fisheries, lobster trap/pot 
fisheries, and other trap/pot fisheries. Total burden hours for all 
newly affected vessels is 40,702 over three years or 13,567 per year. 
Total cost burden for all newly affected vessels is $26,863 over three 
years or $8,954 per year. For more information, please see the PRA 
submission associated with this rulemaking.
    Any information collection requirements subject to PRA and related 
to VMS requirements in the U.S. Southeast Atlantic shark gillnet 
fishery were addressed in a previous rulemaking (69 FR 51010, August 
17, 2004) and approved by OMB under control number 0648-0372. Fishermen 
will not incur any additional costs as they currently have all the 
equipment required to comply with the reporting requirements.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    NMFS has determined that this final action is consistent to the 
maximum extent practicable with the approved coastal management program 
of the U.S. Atlantic coastal states. The proposed rule, RIR, RFA 
analysis, and DEIS were submitted to the responsible state agencies for 
review under section 307 of the Coastal Zone Management Act (CZMA). The 
following states agreed with NMFS' determination: New Hampshire, Rhode 
Island, New Jersey, Pennsylvania, Delaware, Virginia, South Carolina, 
Georgia, and Florida. Maine, Massachusetts, and Maryland did not 
respond, therefore, consistency is inferred. Three states, Connecticut, 
New York, and North Carolina conditionally concurred with NMFS' 
conclusion that the proposed action is consistent with the enforceable 
policies of the approved coastal management program for that state; 
however, the North Carolina conditional concurrence was treated as an 
objection because NMFS could not meet the state agency's conditions.
    The Connecticut Department of Environmental Protection and New York 
State Department of Environmental Conservation concurred with NMFS' 
determination that the amendments to the ALWTRP are consistent to the 
maximum extent practicable with the enforceable policies of the states' 
Coastal Management Programs provided that NMFS adopt the modifications 
recommended by the Connecticut Marine Fisheries Division. The 
recommended modifications included an adjustment of the proposed ALWTRP 
exempted line for Long Island Sound. Without this adjustment, the 
Connecticut Department of Environmental Protection indicated that the 
proposed action would create an unjustified economic hardship on the 
Connecticut fishing industry, as there is an absence of whale 
interactions in this area. This final rule adopts the modifications 
suggested by the Connecticut Marine Fisheries Division and New York 
State Department of Environmental Conservation; therefore, in 
accordance with 15 CFR 930.4(a)(2), the final rule was modified 
pursuant to the state agency's conditions that allow the state agency 
to concur with the Federal action.
    The NCDCM also conditionally concurred with NMFS' determination 
that the proposed action is consistent to the maximum extent 
practicable with the enforceable policies of North Carolina's coastal 
management program. NCDCM was concerned that the proposed action would 
adversely affect the public's ability to conduct recreational and/or 
commercial fishing, causing safety hazards as well as economic and 
operational burdens. Thus, NCDCM offered three conditions that the 
agency would have to adopt in order to be consistent with North 
Carolina's coastal management program. First, NCDCM recommended that 
the mid-Atlantic gillnet restriction season from December 1 through 
March 31 of any year should not be expanded to the proposed period of 
September 1 through May 31. Alternatively, NCDCM suggested that, if the 
season is expanded, the inshore small mesh gillnet fishery (<5 inches 
(0.1 m), 300-yard (274.3 m or 900 ft) maximum set) be allowed to use 
deadweight anchors on the inshore end of the net and

[[Page 57171]]

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

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

List of Subjects

50 CFR Part 229

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

50 CFR Part 635

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

[[Page 57180]]

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

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

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

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

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

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


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


Sec.  229.2  Definitions.

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

0
3. In Sec.  229.3:
0
a. Redesignate paragraphs (l), (m), (n), (o), (p), (q), and (r) as 
paragraphs (m), (n), (o), (p), (q), (r), and (s), respectively; and
0
b. Paragraphs (h) through (k) are then revised and paragraph (l) is 
added to read as follows:


Sec.  229.3   Prohibitions.

* * * * *
    (h) It is prohibited to fish with or possess trap/pot gear in the 
areas and during the times specified in Sec.  229.32 (c)(2) through 
(c)(9) unless the trap/pot gear complies with the marking requirements, 
closures, modifications, and restrictions specified in Sec.  
229.32(b)(2)(ii), (b)(2)(iii), and (c)(1) through (c)(9), or unless the 
gear is stowed as specified in Sec.  229.2.
    (i) It is prohibited to fish with or possess anchored gillnet gear 
in the areas and during the times specified in Sec.  229.32(d)(2) 
through (d)(7) unless that gillnet gear complies with the marking 
requirements, closures, modifications, and restrictions specified in 
Sec.  229.32(b)(2)(ii), (b)(2)(iii), and (d)(1) through (d)(7), or 
unless the gear is stowed as specified in Sec.  229.2.
    (j) It is prohibited to fish with or possess drift gillnet gear in 
the areas and during the times specified in Sec.  229.32(e)(1) through 
(e)(6) unless the drift gillnet gear complies with the marking 
requirements, closures, modifications, and restrictions specified in 
Sec.  229.32(b)(2)(ii), (b)(2)(iii), and (e)(1) through (e)(6), or 
unless the gear is stowed as specified in Sec.  229.2.
    (k) It is prohibited to fish with or possess gillnet gear in the 
areas and during the times specified in Sec.  229.32(f)(1) and (g)(1) 
unless the gillnet gear complies with the marking requirements, 
closures, modifications, and restrictions specified in Sec.  
229.32(b)(2)(ii), (b)(2)(iii), (f)(2)(ii), (f)(2)(iv), (f)(2)(v), and 
(g)(3), or for (g)(3) unless the gear is stowed as specified in Sec.  
229.2.
    (l) It is prohibited to fish with or possess shark gillnet gear 
(i.e. gillnet gear for shark with webbing of 5 inches (12.7 cm) or 
greater stretched mesh) in the areas and during the times specified in 
Sec.  229.32(f)(1), (g)(1) and (h)(1) unless the gear complies with the 
marking requirements, closures, modifications, and restrictions 
specified in Sec.  229.32(b)(2)(i), (b)(2)(iii), (f)(2)(ii), 
(f)(2)(iii), (f)(2)(v), (g)(2), and (h)(2), or for the gear marking 
requirements for (h)(2) unless the gear is stowed as specified in Sec.  
229.2.
* * * * *
0
4. Section Sec.  229.32 is amended as follows:
0
A. Paragraphs (f) introductory text, (f)(2), and (f)(3) are revised 
effective November 5, 2007.
0
B. Amendments to Sec.  229.32 (f)(1)(iii) and (g)(4)(i)(B)(1)(vi) are 
added effective November 5, 2007 to April 5, 2008.
0
C. Paragraphs (f)(1)(ii) and (g)(4)(i)(B)(1)(iii) are removed and 
reserved effective November 5, 2007.

[[Page 57181]]

Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (f) Restrictions applicable to the Southeast U.S. Restricted Area 
and the Southeast U.S. Monitoring Area--
    (1) * * *
    (i) * * *
    (iii) Southeast U.S. Monitoring Area--(A) Management areas and 
restricted periods. From December 1 through March 31, the Southeast 
U.S. Monitoring Area consists of the area from 27[deg]51' N. lat. south 
to 26[deg]46.50' N. lat. (near West Palm Beach, FL), extending from the 
shoreline or exemption line out to 80[deg]00' W. long., unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (B) Vessel monitoring systems and observer requirements. No person 
may fish for shark with gillnet with webbing of 5 inches (12.7 cm) or 
greater stretched mesh in the Southeast U.S. Monitoring Area during the 
restricted period unless the person or vessel satisfies the vessel 
monitoring system and observer requirements listed below.
    (1) Vessel monitoring systems. No person or vessel may fish with or 
possess gillnet gear for shark with webbing of 5 inches (12.7 cm) or 
greater stretched mesh in the Southeast U.S. Monitoring Area during the 
restricted period unless the operator of the vessel is in compliance 
with the vessel monitoring system (VMS) requirements found in 50 CFR 
635.69.
    (2) At-sea observer coverage. NMFS may select any shark gillnet 
vessel (i.e., vessel fishing gillnet gear for shark with webbing of 5 
inches (12.7 cm) or greater stretched mesh) regulated under Sec.  
229.32 to carry an observer. When selected, vessels are required to 
take observers on a mandatory basis in compliance with the requirements 
for at-sea observer coverage found in 50 CFR 229.7. Any vessel that 
fails to carry an observer once selected is prohibited from fishing 
pursuant to 50 CFR part 635.
    (2) Gear marking requirements. From November 15 through March 31 of 
the following year, no person may fish with gillnet gear in the 
Southeast U.S. Restricted Area and Southeast U.S. Monitoring Area 
unless that gear is marked according to the gear marking code specified 
under paragraph (b) of this section. All buoy lines must be marked 
within 2 ft (0.6m) of the top of the buoy line and midway along the 
length of the buoy line. From November 15, 1999, each net panel must be 
marked along both the float line and the lead line at least once every 
100 yards (92.4m).
    (3) Observer requirement. No person may fish for shark with gillnet 
with webbing of 5 inches (12.7cm) or greater stretched mesh in the 
Southeast U.S. Restricted Area from December 1 through March 31 south 
of 29[deg]00' N. lat. unless the operator of the vessel calls the 
Southeast Fisheries Science Center Panama City Laboratory in Panama 
City, FL, not less than 48 hours prior to departing on any fishing 
trip, in order to arrange for observer coverage. If the Panama City 
Laboratory requests that an observer be taken on board a vessel during 
a fishing trip at any time from December 1 through March 31 south of 
29[deg] 00' N. lat., no person may fish with such gillnet gear aboard 
that vessel in the Southeast U.S. Restricted Area unless an observer is 
on board that vessel during the trip.
* * * * *
    (g) * * *
    (4) * * *
    (i) * * *
    (B) * * *
    (1) * * *
    (vi) Net panel weak links. The breaking strength of each weak link 
must not exceed 1,100 lb (499.0 kg). The weak link requirements apply 
to all variations in panel size. One weak link must be placed in the 
center of the floatline and one weak link must be placed in the center 
of each of the up and down lines at both ends of the net panel. 
Additionally, one weak link must be placed as close as possible to each 
end of the net panels on the floatline; or one weak link must be placed 
between floatline tie-loops between net panels and one weak link must 
be placed where the floatline tie-loops attach to the bridle, buoy 
line, or groundline at each end of a net string.
* * * * *

0
5. Revise Sec.  229.32, effective April 5, 2008 except for paragraphs 
(c)(5)(ii)(B), (c)(6)(ii)(B), (c)(7)(ii)(C), (c)(8)(ii)(B), 
(c)(9)(ii)(B), (d)(6)(ii)(D), and (d)(7)(ii)(D), which will be 
effective October 5, 2008, to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

    (a)(1) Purpose and scope. 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. 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.
    (2) Regulated 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.
    (3) Exempted waters. (i) The regulations in this section do not 
apply to waters landward of the first bridge over any embayment, 
harbor, or inlet in Massachusetts.
    (ii) 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.
    (iii) Other exempted waters. The regulations in this section do not 
apply to waters landward of the following lines:
Maine
    A line connecting the following points (Quoddy Narrows/U.S.-Canada 
border to Odiornes Pt., Portsmouth, New Hampshire):

44[deg]49.67' N. lat., 66[deg]57.77' W. long. (R N ``2'', Quoddy 
Narrows)
44[deg]48.64' N. lat., 66[deg]56.43' W. long. (G ``1'' Whistle, West 
Quoddy Head)
44[deg]47.36' N. lat., 66[deg]59.25' W. long. (R N ``2'', Morton Ledge)
44[deg]45.51' N. lat., 67[deg]02.87' W. long. (R ``28M'' Whistle, 
Baileys Mistake)
44[deg]37.70' N. lat., 67[deg]09.75' W. long. (Obstruction, Southeast 
of Cutler)
44[deg]27.77' N. lat., 67[deg]32.86' W. long. (Freeman Rock, East of 
Great Wass Island)
44[deg]25.74' N. lat., 67[deg]38.39' W. long. (R ``2SR'' Bell, Seahorse 
Rock, West of Great Wass Island)
44[deg]21.66' N. lat., 67[deg]51.78'' W. long. (R N ``2'', Petit Manan 
Island)
44[deg]19.08' N. lat., 68[deg]02.05' W. long. (R ``2S'' Bell, Schoodic 
Island)
44[deg]13.55' N. lat., 68[deg]10.71' W. long. (R ``8BI'' Whistle, Baker 
Island)
44[deg]08.36' N. lat., 68[deg]14.75' W. long. (Southern Point, Great 
Duck Island)
43[deg]59.36' N. lat., 68[deg]37.95' W. long. (R ``2'' Bell, Roaring 
Bull Ledge, Isle Au Haut)
43[deg]59.83' N. lat., 68[deg]50.06'' W. long. (R ``2A'' Bell, Old 
Horse Ledge)
43[deg]56.72' N. lat., 69[deg]04.89' W. long. (G ``5TB'' Bell, Two Bush 
Channel)

[[Page 57182]]

43[deg]50.28' N. lat., 69[deg]18.86' W. long. (R ``2 OM'' Whistle, Old 
Man Ledge)
43[deg]48.96' N. lat., 69[deg]31.15' W. long. (GR C ``PL'', Pemaquid 
Ledge)
43[deg]43.64' N. lat., 69[deg]37.58' W. long. (R ``2BR'' Bell, Bantam 
Rock)
43[deg]41.44' N. lat., 69[deg]45.27' W. long. (R ``20ML'' Bell, Mile 
Ledge)
43[deg]36.04' N. lat., 70[deg]03.98' W. long. (RG N ``BS'', Bulwark 
Shoal)
43[deg]31.94' N. lat., 70[deg]08.68' W. long. (G ``1'', East Hue and 
Cry)
43[deg]27.63' N. lat., 70[deg]17.48' W. long. (RW ``WI'' Whistle, Wood 
Island)
43[deg]20.23' N. lat., 70[deg]23.64' W. long. (RW ``CP'' Whistle, Cape 
Porpoise)
43[deg]04.06' N. lat., 70[deg]36.70' W. long. (R N ``2MR'', Murray 
Rock)
43[deg]02.93' N. lat., 70[deg]41.47' W. long. (R ``2KR'' Whistle, 
Kittery Point)
43[deg]02.55' N. lat., 70[deg]43.33' W. long. (Odiornes Pt., 
Portsmouth, New Hampshire)
New Hampshire
A line from 42[deg]53.691' N. lat., 70[deg]48.516' W. long. to 
42[deg]53.516' N. lat., 70[deg]48.748' W. long. (Hampton Harbor)
A line from 42[deg]59.986' N. lat., 70[deg]44.654' W. long. to 
42[deg]59.956' N., 70[deg]44.737' W. long. (Rye Harbor)
Rhode Island
A line from 41[deg]22.441' N. lat., 71[deg]30.781' W. long. to 
41[deg]22.447' N. lat., 71[deg]30.893' W. long. (Pt. Judith Pond Inlet)
A line from 41[deg]21.310' N. lat., 71[deg]38.300' W. long. to 
41[deg]21.300' N. lat., 71[deg]38.330' W. long. (Ninigret Pond Inlet)
A line from 41[deg]19.875' N. lat., 71[deg]43.061' W. long. to 
41[deg]19.879' N. lat., 71[deg]43.115' W. long. (Quonochontaug Pond 
Inlet)
A line from 41[deg]19.660' N. lat., 71[deg]45.750' W. long. to 
41[deg]19.660' N. lat., 71[deg]45.780' W. long. (Weekapaug Pond Inlet)
New York
A line that follows the territorial sea baseline through Block Island 
Sound (Watch Hill Point, RI, to Montauk Point, NY)
South Carolina
A line from 32[deg]34.717' N. lat., 80[deg]08.565' W. long. to 
32[deg]34.686' N. lat., 80[deg]08.642' W. long. (Captain Sams Inlet)

    (4) Sinking and/or neutrally buoyant groundline exemption. The 
fisheries regulated under this section are exempt from the requirement 
to have groundlines composed of sinking and/or neutrally buoyant line 
if their groundline is at a depth equal to or greater than 280 fathoms 
(1,680 ft or 512.1 m) (as shown on NOAA charts 13200 (Georges Bank and 
Nantucket Shoals, 1:400,000), 12300 (NY Approaches--Nantucket Shoals to 
Five Fathom Bank, 1:400,000), 12200 (Cape May to Cape Hatteras, 
1:419,706), 11520 (Cape Hatteras to Charleston, 1:432,720), 11480 
(Charleston Light to Cape Canaveral, 1:449,659) and 11460(Cape 
Canaveral to Key West, 1:466,940)).
    (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 ft or 512.1 m) (as shown on NOAA charts 13200 
(Georges Bank and Nantucket Shoals, 1:400,000), 12300 (NY Approaches--
Nantucket Shoals to Five Fathom Bank, 1:400,000), 12200 (Cape May to 
Cape Hatteras, 1:419,706), 11520 (Cape Hatteras to Charleston, 
1:432,720), 11480 (Charleston Light to Cape Canaveral, 1:449,659) and 
11460(Cape Canaveral to Key West, 1:466,940)).
    (b) Gear marking requirements. (1) Specified gear consists of trap/
pot gear and gillnet gear set in specified areas.
    (2) Specified areas. The following areas are specified for gear 
marking purposes: Northern Inshore State Trap/Pot Waters, Cape Cod Bay 
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 Area, and Southeast U.S. 
Monitoring Area.
    (i) Requirements for Shark Gillnet Gear in the Southeast U.S. 
Restricted Area S, Southeast U.S. Monitoring Area and Other Southeast 
Gillnet Waters--(A) Color code. Shark gillnet gear (i.e., gillnet gear 
for shark with webbing of 5 inches (12.7 cm) or greater stretched mesh) 
in the Southeast U.S. Restricted Area S, Southeast U.S. Monitoring 
Area, and Other Southeast Gillnet Waters must be marked with the 
appropriate color code to designate gear types and areas as follows:
    (1) Gear type code. Shark gillnet gear must be marked with a green 
marking.
    (2) Area code. Shark gillnet gear set in the Southeast U.S. 
Restricted Area S, Southeast U.S. Monitoring Area, and Other Southeast 
Gillnet Waters must be marked with a blue marking.
    (B) Markings. All specified gear in specified areas must be marked 
with two color codes, one designating the gear type, the other 
indicating the area where the gear is set. Each color of the two-color 
code must be permanently marked on or along the line or lines specified 
below under paragraphs (b)(2)(i)(C) and (D) of this section. Each color 
mark of the color codes must be clearly visible when the gear is hauled 
or removed from the water. Each mark must be at least 4 inches (10.2 
cm) long. The two color marks must be placed within 6 inches (15.2 cm) 
of each other. If the color of the rope is the same as or similar to a 
color code, a white mark may be substituted for that color code. In 
marking or affixing the color code, the line may be dyed, painted, or 
marked with thin colored whipping line, thin colored plastic, or heat-
shrink tubing, or other material; or a thin line may be woven into or 
through the line; or the line may be marked as approved in writing by 
the Assistant Administrator. A brochure illustrating the techniques for 
marking gear is available from the Regional Administrator, NMFS, 
Northeast Region upon request.
    (C) Buoy line markings. All buoy lines greater than 4 feet (1.22 m) 
long must be marked within 2 feet (0.6 m) of the top of the buoy line 
(closest to the surface) and midway along the length of the buoy line.
    (D) Net panel markings. Each gillnet net panel must be marked along 
both the floatline and the leadline at least once every 100 yards (91.4 
m), unless otherwise required by the Assistant Administrator under 
paragraph (i) of this section.
    (ii) Requirements for other specified areas. Any person who owns or 
fishes with specified gear in the other specified areas must mark that 
gear in accordance with paragraphs (b)(2)(ii)(A), (b)(2)(ii)(B), and 
(b)(2)(iii) of this section, unless otherwise required by the Assistant 
Administrator under paragraph (i) of this section.
    (A) Color code. Specified gear must be marked with the appropriate 
colors to designate gear-types and areas as follows:
    (1) Trap/pot gear in the Northern Inshore State Trap/Pot Waters 
Area, the Cape Cod Bay Restricted Area, the Stellwagen Bank/Jeffreys 
Ledge Restricted Area, the Great South Channel Restricted Trap/Pot Area 
where it overlaps with Lobster Management Area (LMA) 2 and the Outer 
Cape LMA (as defined in the American Lobster Fishery regulations in 50 
CFR 697.18), and the Northern Nearshore Trap/Pot

[[Page 57183]]

Waters Area must be marked with a red marking.
    (2) Trap/pot gear in the Southern Nearshore Trap/Pot Waters Area 
must be marked with an orange marking.
    (3) Trap/pot gear in the Great South Channel Restricted Trap/Pot 
Area where it overlaps with LMA \2/3\ Overlap and LMA 3 (as defined in 
the American Lobster Fishery regulations in 50 CFR 697.18), and the 
Offshore Trap/Pot Waters Area must be marked with a black marking.
    (4) Anchored and drift gillnet gear in the Cape Cod Bay Restricted 
Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, Great South 
Channel Restricted Gillnet Area, Great South Channel Sliver Restricted 
Area, and Other Northeast Gillnet Waters Area must be marked with a 
green marking.
    (5) Anchored and drift gillnet gear in the Mid/South Atlantic 
Gillnet Waters Area must be marked with a blue marking.
    (6) Gillnet gear (except gillnet gear for shark with webbing of 5 
inches (12.7 cm) or greater stretched mesh) in the Southeast U.S. 
Restricted Area S and Other Southeast Gillnet Waters must be marked 
with a yellow marking.
    (B) Markings. All specified gear in specified areas must be marked 
with one color code described in paragraph (b)(2)(ii)(A) of this 
section (which indicates the gear type and general area where the gear 
is set). Each color code must be permanently affixed on or along the 
line or lines. Each color code must be clearly visible when the gear is 
hauled or removed from the water. Each mark must be at least 4 inches 
(10.2 cm) long and be placed midway on the buoy line in the water 
column. If the color of the rope is the same as or similar to a color 
code, a white mark may be substituted for that color code. In marking 
or affixing the color code, the line may be dyed, painted, or marked 
with thin colored whipping line, thin colored plastic, or heat-shrink 
tubing, or other material; or a thin line may be woven into or through 
the line; or the line may be marked as approved in writing by the 
Assistant Administrator. A brochure illustrating the techniques for 
marking gear is available from the Regional Administrator, NMFS, 
Northeast Region upon request.
    (iii) Requirements for all specified areas--(A) 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. A brochure 
illustrating the techniques for marking gear is available upon from the 
Regional Administrator, NMFS, Northeast Region upon request.
    (3) Changes to requirements. If the Assistant Administrator revises 
the gear marking requirements in accordance with paragraph (i) of this 
section, the gear must be marked in compliance with those requirements.
    (c) Restrictions applicable to trap/pot gear in regulated waters--
(1) Universal trap/pot gear requirements. In addition to the area-
specific measures listed in paragraphs (c)(2) through (c)(9) 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 here.\1\ The Assistant Administrator may revise 
these requirements in accordance with paragraph (i) of this section.
---------------------------------------------------------------------------

    \1\ Fishermen 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.
---------------------------------------------------------------------------

    (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.
    (2) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay right whale critical 
habitat area specified under 50 CFR 226.203(b) unless the Assistant 
Administrator changes that area in accordance with paragraph (i) of 
this section.
    (ii) Area-specific gear or vessel requirements during the winter 
restricted period. No person or vessel may fish with or possess trap/
pot gear in the Cape Cod Bay Restricted Area during the winter 
restricted period 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 below for the winter 
restricted period, or unless the gear is stowed as specified in Sec.  
229.2. The Assistant Administrator may revise these requirements in 
accordance with paragraph (i) of this section.
    (A) Winter restricted period. The winter restricted period for the 
Cape Cod Bay Restricted Area is from January 1 through May 15 of each 
year unless the Assistant Administrator changes this period in 
accordance with paragraph (i) of this section.
    (B) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as operationally feasible and that meets the following 
specifications:
    (1) The breaking strength of the weak links must not exceed 500 lb 
(226.8 kg).
    (2) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from the Regional Administrator, NMFS, Northeast Region upon request.
    (3) 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 provision.
    (C) Single traps and multiple-trap trawls. Single traps and three-
trap trawls are prohibited. All traps must be set in either a two-trap 
string or in a trawl of four or more traps. A two-trap string must have 
no more than one buoy line.
    (D) Buoy lines. All buoy lines must be composed of sinking and/or 
neutrally buoyant line except the bottom portion of the line, which may 
be a section of floating line not to exceed one-third the overall 
length of the buoy line.
    (E) Groundlines. All groundlines must be comprised entirely of 
sinking and/or neutrally buoyant line. The attachment of buoys, 
toggles, or other floatation devices to groundlines is prohibited.
    (iii) Area-specific gear or vessel requirements for the other 
restricted period. No person or vessel may fish with or possess trap/
pot gear in the Cape Cod Bay Restricted Area during the other 
restricted period unless that

[[Page 57184]]

gear complies with the gear marking requirements specified in paragraph 
(b) of this section and the universal trap/pot gear requirements 
specified in paragraph (c)(1) of this section as well as the area-
specific requirements listed below for the other restricted period, or 
unless the gear is stowed as specified in Sec.  229.2. The Assistant 
Administrator may revise these requirements in accordance with 
paragraph (i) of this section.
    (A) Other restricted period. The other restricted period for the 
Cape Cod Bay Restricted Area is from May 16 through December 31 of each 
year unless the Assistant Administrator revises this period in 
accordance with paragraph (i) of this section.
    (B) Gear and vessel requirements--(1) State-water portion. No 
person or vessel may fish with or possess trap/pot gear in the state-
water portion of the Cape Cod Bay Restricted Area during the other 
restricted period unless that gear complies with the requirements for 
the Northern Inshore State Trap/Pot Waters Area listed in paragraph 
(c)(6) of this section, or unless the gear is stowed as specified in 
Sec.  229.2. The Assistant Administrator may revise these requirements 
in accordance with paragraph (i) of this section.
    (2) Federal-water portion. No person or vessel may fish with or 
possess trap/pot gear in the Federal-water portion of the Cape Cod Bay 
Restricted Area during the other restricted period unless that gear 
complies with the requirements for the Northern Nearshore Trap/Pot 
Waters Area in paragraph (c)(7) of this section, or unless the gear is 
stowed as specified in Sec.  229.2. The Assistant Administrator may 
revise these requirements in accordance with paragraph (i) of this 
section.
    (3) Great South Channel Restricted Trap/Pot Area--(i) Area. The 
Great South Channel Restricted Trap/Pot Area consists of the Great 
South Channel right whale critical habitat area specified under 50 CFR 
226.203(a) unless the Assistant Administrator changes that area in 
accordance with paragraph (i) of this section.
    (ii) Closure during the spring restricted period. The spring 
restricted period for the Great South Channel Restricted Trap/Pot Area 
is from April 1 through June 30 of each year unless the Assistant 
Administrator revises this period in accordance with paragraph (i) of 
this section. During the spring restricted period, no person or vessel 
may fish with, set, or possess trap/pot gear in this Area unless the 
Assistant Administrator specifies gear modifications or alternative 
fishing practices in accordance with paragraph (i) of this section and 
the gear or practices comply with those specifications, or unless the 
gear is stowed as specified in Sec.  229.2.
    (iii) Area-specific gear or vessel requirements for the other 
restricted period. The other restricted period for the Great South 
Channel Restricted Trap/Pot Area is July 1 through March 31, unless the 
Assistant Administrator revises this period in accordance with 
paragraph (i) of this section. During the other restricted period, 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, and the universal trap/pot gear requirements specified in 
paragraph (c)(1) of this section, or unless the gear is stowed as 
specified in Sec.  229.2. Additionally, 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 requirements listed 
for Northern Nearshore Trap/Pot Waters Area in paragraph (c)(7) of this 
section where the Great South Channel Restricted Trap/Pot Area overlaps 
with Lobster Management Area (LMA) 2 and the Outer Cape LMA (as defined 
in the American Lobster Fishery regulations in 50 CFR 697.18); the 
requirements listed for Offshore Trap/Pot Waters in paragraph (c)(5) of 
this section where the Great South Channel Restricted Trap/Pot Area 
overlaps with LMA 2/3 Overlap and LMA 3 (as defined in the American 
Lobster Fishery regulations in 50 CFR 697.18); or unless the gear is 
stowed as specified in Sec.  229.2. The Assistant Administrator may 
revise these requirements in accordance with paragraph (i) of this 
section.
    (4) 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 right whale 
critical habitat under 50 CFR 226.203(b), that lie south of 
43[deg]15[min] N. lat. and west of 70[deg]00[min] W. long. The 
Assistant Administrator may change that area in accordance with 
paragraph (i) 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 
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 requirements listed for the 
Northern Nearshore Trap/Pot Waters Area specified in paragraph (c)(7) 
of this section, or unless the gear is stowed as specified in Sec.  
229.2. The Assistant Administrator may revise these requirements in 
accordance with paragraph (i) of this section.
    (5) Offshore Trap/Pot \2\ Waters Area--(i) Area. The Offshore Trap/
Pot Waters Area includes all Federal waters of the EEZ Offshore 
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), and extending south along the 100-
fathom (600-ft or 182.9-m) depth contour from 35[deg]30[min] N. lat. 
south to 27[deg]51[min] N. lat., and east to the eastern edge of the 
EEZ. The Assistant Administrator may revise these requirements in 
accordance with paragraph (i) of this section.
---------------------------------------------------------------------------

    \2\ Fishermen using red crab trap/pot gear should refer to Sec.  
229.32(c)(9) for the restrictions applicable to red crab trap/pot 
fishery.
---------------------------------------------------------------------------

    (ii) Year-round area-specific gear or vessel requirements. No 
person or vessel may fish with or possess trap/pot gear in the Offshore 
Trap/Pot Waters Area that overlaps an area from the U.S./Canada border 
south to a straight line from 41[deg]18.2[min] N. lat., 
71[deg]51.5[min] W. long. (Watch Hill Point, RI) south to 
40[deg]00[min] 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 below, or unless the gear is stowed 
as specified in Sec.  229.2. The Assistant Administrator may revise 
these requirements in accordance with paragraph (i) of this section.
    (A) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as operationally feasible and that meets the following 
specifications:
    (1) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from

[[Page 57185]]

the Regional Administrator, NMFS, Northeast Region upon request.
    (2) The breaking strength of the weak links may not exceed 1,500 lb 
(680.4 kg).
    (3) 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 provision.
    (B) Groundlines. On or before October 6, 2008, all groundlines must 
be comprised entirely of sinking and/or neutrally buoyant line unless 
exempted from this requirement under paragraph (a)(4) of this section. 
The attachment of buoys, toggles, or other flotation devices to 
groundlines is prohibited.
    (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[deg]18.2' N. lat., 
71[deg]51.5' W. long. (Watch Hill Point, RI) south to 40[deg]00' N. 
lat. and then east to the eastern edge of the EEZ, and bounded on the 
south by a line at 32[deg]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 specified in paragraphs (c)(5)(ii)(A) and 
(c)(5)(ii)(B) of this section, or unless the gear is stowed as 
specified in Sec.  229.2. The Assistant Administrator may revise that 
period and these requirements in accordance with paragraph (i) of this 
section.
    (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[deg]00' N. lat. south to 29[deg]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 the area-specific requirements specified in 
paragraphs (c)(5)(ii)(A) and (c)(5)(ii)(B) of this section, or unless 
the gear is stowed as specified in Sec.  229.2. The Assistant 
Administrator may revise that period and these requirements in 
accordance with paragraph (i) of this section.
    (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[deg]00' N. lat. south to 27[deg]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 (c)(1) of this 
section, and the area-specific requirements specified in paragraphs 
(c)(5)(ii)(A) and (c)(5)(ii)(B) of this section, or unless the gear is 
stowed as specified in Sec.  229.2. The Assistant Administrator may 
revise this period and these requirements in accordance with paragraph 
(i) of this section.
    (vi) [Reserved]
    (6) 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 Cape Cod Bay Restricted Area and those waters exempted 
under paragraph (a)(3) of this section. The Assistant Administrator may 
change that area in accordance with paragraph (i) 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 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, and the area-specific requirements listed below, or 
unless the gear is stowed as specified in Sec.  229.2. The Assistant 
Administrator may revise these requirements in accordance with 
paragraph (i) of this section.
    (A) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as operationally feasible and that meets the following 
specifications:
    (1) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from the Regional Administrator, NMFS, Northeast Region upon request.
    (2) The breaking strength of the weak links may not exceed 600 lb 
(272.2 kg).
    (3) 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 provision.
    (B) Groundlines. On or before October 6, 2008, all groundlines must 
be comprised entirely of sinking and/or neutrally buoyant line unless 
exempted for this requirement under paragraph (a)(4) of this section. 
The attachment of buoys, toggles, or other flotation devices to 
groundlines is prohibited.
    (C) [Reserved]
    (7) 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, Cape Cod Bay Restricted Area, Stellwagen 
Bank/Jeffreys Ledge Restricted Area and those waters exempted under 
paragraph (a)(3) of this section. The Assistant Administrator may 
change that area in accordance with paragraph (i) 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 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, and the area-specific requirements listed below, or 
unless the gear is stowed as specified in Sec.  229.2. The Assistant 
Administrator may revise these requirements in accordance with 
paragraph (i) of this section.
    (A) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as operationally feasible and that meets the following 
specifications:
    (1) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from

[[Page 57186]]

the Regional Administrator, NMFS, Northeast Region upon request.
    (2) The breaking strength of the weak links must not exceed 600 lb 
(272.2 kg).
    (3) 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 provision.
    (B) Single traps and multiple-trap trawls. Single traps are 
prohibited. All traps must be set in trawls of two or more traps. All 
trawls up to and including five traps must have no more than one buoy 
line.
    (C) Groundlines. On or before October 6, 2008, all groundlines must 
be comprised entirely of sinking and/or neutrally buoyant line unless 
exempted from this requirement under paragraph (a)(4) of this section. 
The attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited.
    (D) [Reserved]
    (8) Southern Nearshore\3\ Trap/Pot Waters Area--(i) Area. The 
Southern Nearshore Trap/Pot Waters Area includes all state and Federal 
waters which 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 50 CFR 697.18), and inside 
the 100-fathom (600-ft or 182.9-m) depth contour line from 35[deg]30' N 
lat. south to 27[deg]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. The Assistant Administrator may 
change that area in accordance with paragraph (i) of this section.
---------------------------------------------------------------------------

    \3\ Fishermen using red crab trap/pot gear should refer to Sec.  
229.32(c)(9) for the restrictions applicable to red crab trap/pot 
fishery.
---------------------------------------------------------------------------

    (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[deg]18.2' N. lat.,71[deg]51.5' W. long. (Watch Hill Point, RI) south 
to 40[deg]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, and the area-specific requirements listed here, or unless the 
gear is stowed as specified in Sec.  229.2. The Assistant Administrator 
may revise that period and these requirements in accordance with 
paragraph (i) of this section.
    (A) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as operationally feasible and that meets the following 
specifications:
    (1) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from the Regional Administrator, NMFS, Northeast Region upon request.
    (2) The breaking strength of the weak links may not exceed 600 lb 
(272.2 kg).
    (3) 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 provision.
    (B) Groundlines. On or before October 6, 2008, all groundlines must 
be comprised entirely of sinking and/or neutrally buoyant line unless 
exempted from this requirement under paragraph (a)(4) of this section. 
The attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited.
    (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[deg]18.2' N. lat., 71[deg]51.5' W. long. (Watch Hill Point, RI) 
south to 40[deg]00' N. lat. and then east to the eastern edge of the 
EEZ, and bounded on the south by 32[deg]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, requirements specified in paragraphs (c)(8)(ii)(A) and 
(c)(8)(ii)(B) of this section, or unless the gear is stowed as 
specified in Sec.  229.2. The Assistant Administrator may revise that 
period and these requirements in accordance with paragraph (i) of this 
section.
    (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[deg]00' N. lat. south to 29[deg]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 the area-specific requirements 
specified in paragraphs (c)(8)(ii)(A) and (c)(8)(ii)(B) of this 
section, or unless the gear is stowed as specified in Sec.  229.2. The 
Assistant Administrator may revise that period and these requirements 
in accordance with paragraph (i) of this section.
    (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[deg]00' N. lat. south to 27[deg]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, and the area-specific requirements 
specified in paragraphs (c)(8)(ii)(A) and (c)(8)(ii)(B) of this 
section, or unless the gear is stowed as specified in Sec.  229.2. The 
Assistant Administrator may revise this period and these requirements 
in accordance with paragraph (i) of this section.
    (vi) [Reserved]
    (9) 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)(5)(i) and (c)(8)(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)(9)(i) of this section that overlaps an 
area from the U.S./Canada border south to a straight line from 41[deg] 
18.2' N. lat., 71[deg]51.5' W. long. (Watch Hill Point, RI) south to 
40[deg]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 below, or unless the gear is stowed 
as specified in Sec.  229.2. The Assistant Administrator revises these 
requirements in accordance with paragraph (i) of this section.
    (A) Buoy line weak links. All buoys, flotation devices and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as

[[Page 57187]]

operationally feasible and that meets the following specifications:
    (1) 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 Assistant Administrator. A 
brochure illustrating the techniques for making weak links is available 
from the Regional Administrator, NMFS, Northeast Region upon request.
    (2) The breaking strength of the weak links may not exceed 2,000 lb 
(907.2 kg).
    (3) 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 provision.
    (B) Groundlines. On or before October 6, 2008, all groundlines must 
be comprised entirely of sinking and/or neutrally buoyant line unless 
exempted from this requirement under paragraph (a)(4) of this section. 
The attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited.
    (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)(9)(i) of 
this section that overlaps an area bounded on the north by a straight 
line from 41[deg]18.2[min] N. lat., 71[deg]51.5[min] W. long. (Watch 
Hill Point, RI) south to 40[deg]00[min] N. lat. and then east to the 
eastern edge of the EEZ, and bounded on the south by a line at 
32[deg]00[min] 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 the area-specific 
requirements listed in paragraphs (c)(9)(ii)(A) and (c)(9)(ii)(B) of 
this section, or unless the gear is stowed as specified in Sec.  229.2. 
The Assistant Administrator revises these requirements in accordance 
with paragraph (i) of this section.
    (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)(9)(i) of 
this section that overlaps an area from 32[deg]00[min] N. lat. south to 
29[deg]00[min] 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 the area-specific 
requirements specified in paragraphs (c)(9)(ii)(A) and (c)(9)(ii)(B) of 
this section, or unless the gear is stowed as specified in Sec.  229.2. 
The Assistant Administrator may revise that period and these 
requirements in accordance with paragraph (i) of this section.
    (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)(9)(i) of 
this section that overlaps an area from 29[deg]00[min] N. lat. south to 
27[deg]51[min] 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 the area-specific 
requirements specified in paragraphs (c)(9)(ii)(A) and (c)(9)(ii)(B) of 
this section, or unless the gear is stowed as specified in Sec.  229.2. 
The Assistant Administrator may revise that period and these 
requirements in accordance with paragraph (i) of this section.
    (vi) [Reserved]
    (d) Restrictions applicable to anchored gillnet gear--(1) Universal 
anchored gillnet gear requirements. In addition to the area-specific 
measures listed in paragraphs (d)(2) through (d)(7) of this section, 
all anchored gillnet gear in regulated waters must comply with the 
universal gear requirements listed here. \4\ The Assistant 
Administrator may revise these requirements in accordance with 
paragraph (i) of this section.
---------------------------------------------------------------------------

    \4\ Fishermen 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.
---------------------------------------------------------------------------

    (i) No buoy line floating at the surface. No person or vessel may 
fish with anchored gillnet 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, sinking and/or neutrally buoyant line 
must be used between these objects.
    (ii) No wet storage of gear. Anchored gillnet gear must be hauled 
out of the water at least once every 30 days.
    (2) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay 
Restricted Area consists of the Cape Cod Bay right whale critical 
habitat area specified under 50 CFR 226.203(b), unless the Assistant 
Administrator changes that area in accordance with paragraph (i) of 
this section.
    (ii) Closure during the winter restricted period--(A) Winter 
restricted period. The winter restricted period for this area is from 
January 1 through May 15 of each year, unless the Assistant 
Administrator revises that period in accordance with paragraph (i) of 
this section.
    (B) Closure. During the winter restricted period, no person or 
vessel may fish with or possess anchored gillnet gear in the Cape Cod 
Bay Restricted Area unless the Assistant Administrator specifies gear 
restrictions or alternative fishing practices in accordance with 
paragraph (i) of this section and the gear or practices comply with 
those specifications, or unless the gear is stowed as specified in 
Sec.  229.2. The Assistant Administrator may waive this closure for the 
remaining portion of the winter restricted period in any year through a 
notification in the Federal Register if NMFS determines that right 
whales have left the restricted area and are unlikely to return for the 
remainder of the season.
    (iii) Area-specific gear or vessel requirements for the other 
restricted period--(A) Other restricted period. The other restricted 
period for the Cape Cod Bay Restricted Area is from May 16 through 
December 31 of each year unless the Assistant Administrator changes 
that period in accordance with paragraph (i) of this section.
    (B) Area-specific gear or vessel requirements. No person or vessel 
may fish with or possess anchored gillnet gear in the Cape Cod Bay 
Restricted Area during the other restricted period unless that gear 
complies with the gear marking requirements specified in paragraph (b) 
of this section, the universal anchored gillnet gear requirements 
specified in paragraph (d)(1) of this section, and the area-specific 
requirements listed in paragraph (d)(6)(ii) of this section for the 
Other Northeast Gillnet Waters Area, or unless the gear is stowed as 
specified in Sec.  229.2. The Assistant Administrator may revise these 
requirements in accordance with paragraph (i) of this section.
    (3) Great South Channel Restricted Gillnet Area--(i) Area. The 
Great South Channel Restricted Gillnet Area consists of the area 
bounded by lines connecting the following four points: 41[deg]02.2' N. 
lat./69[deg]02' W. long., 41[deg]43.5' N. lat./69[deg]36.3' W. long., 
42[deg]10' N. lat./68[deg]31' W. long., and 41[deg]38' N. lat./
68[deg]13' W. long. This area includes most of the Great South Channel 
right whale critical habitat area specified under 50 CFR 226.203(a), 
with the exception of the sliver along the western boundary described 
in paragraph (d)(4)(i) of this section. The Assistant Administrator

[[Page 57188]]

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

[[Page 57189]]

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

[[Page 57190]]

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

[[Page 57191]]

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

------------------------------------------------------------------------
                      Point                         N. lat.    W. long.
------------------------------------------------------------------------
SERA1...........................................  27[deg]51'       (\1\)
SERA2...........................................  27[deg]51'  80[deg]00'
SERA3...........................................  32[deg]00'  80[deg]00'
SERA4...........................................  32[deg]36'  78[deg]52'
SERA5...........................................  32[deg]51'  78[deg]36'
SERA6...........................................  33[deg]15'  78[deg]24'
SERA7...........................................  33[deg]27'  78[deg]04'
SERA8...........................................       (\2\)  78[deg]33.
                                                                     9'
------------------------------------------------------------------------
\1\ Florida shoreline.
\2\ South Carolina shoreline.

    (i) Southeast U.S. Restricted Area N. The Southeast U.S. Restricted 
Area N consists of the Southeast U.S. Restricted Area from 29[deg]00' 
N. lat. northward.
    (ii) Southeast U.S. Restricted Area S. The Southeast U.S. 
Restricted Area S consists of the Southeast U.S. Restricted Area 
southward of 29[deg]00' N. lat.
    (2) Restricted periods, closure, and exemptions--(i) Restricted 
periods. The restricted period for the Southeast U.S. Restricted Area N 
is from November 15 through April 15, and the restricted

[[Page 57192]]

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

[[Page 57193]]

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

                                SAM West
------------------------------------------------------------------------
                      Point                         N. lat.     W. long
------------------------------------------------------------------------
1W..............................................  42[deg]30'  70[deg]30'
2W..............................................  42[deg]30'  69[deg]24'
3W..............................................  41[deg]48.  69[deg]24'
                                                          9'
4W..............................................  41[deg]40'  69[deg]45'
5W..............................................  41[deg]40'  69[deg]57'
 
and along the eastern shoreline of Cape Cod to
 6W.............................................  42[deg]04.  70[deg]10'
                                                          8'
7W..............................................  42[deg]12'  70[deg]15'
8W..............................................  42[deg]12'  70[deg]30'
------------------------------------------------------------------------

    (B) Gear or vessel requirements. Unless otherwise authorized by the 
Assistant Administrator, in accordance with paragraph (i)(2) of this 
section, from March 1 through April 30, no person or vessel may fish 
with or possess anchored gillnet or trap/pot gear in SAM West unless 
that gear complies with the following gear modifications, or unless the 
gear is stowed as specified in Sec.  229.2.
    (1) Anchored gillnet gear--(i) Groundlines. All groundlines must be 
made entirely of sinking and/or neutrally buoyant line. Floating 
groundlines are prohibited. The attachment of buoys, toggles, or other 
floatation devices to groundlines is prohibited.
    (ii) Buoy lines. All buoy lines must be composed of sinking line 
except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.
    (iii) Buoy line weak links. All buoys, flotation devices and/or 
weights (except gillnets, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device and/or 
weight as

[[Page 57194]]

operationally feasible that has a maximum breaking strength of 1,100 lb 
(499.0 kg). 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 Assistant 
Administrator. 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 provision. A brochure illustrating the techniques 
for making weak links is available from the Regional Administrator, 
NMFS, Northeast Region upon request.
    (iv) Net panel weak links. The breaking strength of each weak link 
must not exceed 1,100 lb (499.0 kg). The weak link requirements apply 
to all variations in panel size. All net panels in a string must 
contain weak links that meet one of the following two configuration 
specifications found in paragraph (d)(6)(ii)(B)(1) or (d)(6)(ii)(B)(2) 
of this section.
    (v) Anchoring systems. All anchored gillnets, regardless of the 
number of net panels, must be secured at each end of the net string 
with a burying anchor (an anchor that holds to the ocean bottom through 
the use of a fluke, spade, plow, or pick) having the holding capacity 
equal to or greater than a 22-lb (10.0-kg) Danforth-style anchor. Dead 
weights do not meet this requirement. A brochure illustrating the 
techniques for rigging anchoring systems is available from the Regional 
Administrator, NMFS, Northeast Region upon request.
    (2) Trap/pot gear--(i) Groundlines. All groundlines must be made 
entirely of sinking and/or neutrally buoyant line. Floating groundlines 
are prohibited. The attachment of buoys, toggles, or other floatation 
devices to groundlines is prohibited.
    (ii) Buoy lines. All buoy lines must be composed of sinking line 
except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.
    (iii) Northern Inshore State Trap/Pot Waters, Northern Nearshore 
Trap/Pot Waters Areas, Stellwagen Bank/Jeffreys Ledge Restricted Area, 
and Great South Channel Restricted Trap/Pot Area (that overlaps with 
LMA 2 and Outer Cape LMA only) buoy line weak links. All buoys, 
flotation devices, and/or weights (except traps/pots, anchors, and 
leadline woven into the buoy line), such as surface buoys, high flyers, 
sub-surface buoys, toggles, window weights, etc., must be attached to 
the buoy line with a weak link placed as close to each individual buoy, 
flotation device, and/or weight as operationally feasible that has a 
maximum breaking strength of up to 600 lb (272.2 kg). 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 Assistant Administrator. 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 provision. A brochure 
illustrating the techniques for making weak links is available from the 
Regional Administrator, NMFS, Northeast Region upon request.
    (iv) Offshore Trap/Pot Waters Area and Great South Channel 
Restricted Trap/Pot Area (that overlaps with LMA 2/3 Overlap and LMA 3 
only) buoy line weak links. All buoys, flotation devices, and/or 
weights (except traps/pots, anchors, and leadline woven into the buoy 
line), such as surface buoys, high flyers, sub-surface buoys, toggles, 
window weights, etc., must be attached to the buoy line with a weak 
link placed as close to each individual buoy, flotation device, and/or 
weight as operationally feasible that has a maximum breaking strength 
of up to 1,500 lb (680.4 kg). 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 Assistant 
Administrator. 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 provision. A brochure illustrating the techniques 
for making weak links is available from the Regional Administrator, 
NMFS, Northeast Region upon request.
    (ii) SAM East--(A) Area. SAM East consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM East
------------------------------------------------------------------------
                      Point                         N. Lat.    W. Long.
------------------------------------------------------------------------
1E..............................................  42[deg]30'  69[deg]45'
2E..............................................  42[deg]30'  67[deg]27'
3E..............................................  42[deg]09'  67[deg]08.
                                                                      4'
4E..............................................  41[deg]00'  69[deg]05'
5E..............................................  41[deg]40'  69[deg]45'
------------------------------------------------------------------------

    (B) Gear or vessel requirements. Unless otherwise authorized by the 
Assistant Administrator, in accordance with paragraph (i)(2) of this 
section, from May 1 through July 31, no person or vessel may fish with 
or possess anchored gillnet or trap/pot gear in SAM East unless that 
gear complies with the gear modifications found in paragraphs 
(i)(3)(i)(B)(1) and (i)(3)(i)(B)(2) of this section, or unless the gear 
is stowed as specified in Sec.  229.2.

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
6. The authority citation for 50 CFR part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


0
7. In Sec.  635.69, paragraph (a)(3) is revised to read as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (3) Whenever a vessel, issued a directed shark LAP, is away from 
port with a gillnet on board during the right whale calving season 
specified in the regulations implementing the Atlantic Large Whale Take 
Reduction Plan Regulations in Sec.  229.32 of this title.
* * * * *

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
8. The authority citation for 50 CFR part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.


0
9. In Sec.  648.264, paragraph (a)(6)(i) is revised to read as follows:


Sec.  648.264  Gear requirements/restrictions.

    (a) * * *
    (6) Additional gear requirements. (i) Vessels must comply with the 
gear regulations found at Sec.  229.32 of this title.
* * * * *
[FR Doc. 07-4904 Filed 10-1-07; 8:45 am]
BILLING CODE 3510-22-P


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