57104 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

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. 

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 §§ 229.2, 

229.3, and 648.264(a)(6)(i) are effective 

April 5, 2008 and the amendment to 

§ 635.69(a)(3) is effective November 5, 

2007. 

As specified in the regulatory text 

section of this document, amendments 

to § 229.32 are effective as follows: 

• Paragraphs (f) introductory text, 

(f)(2), and (f)(3) are revised effective 

November 5, 2007; 

• Amendments to § 229.32(f)(1)(iii) 

and (g)(4)(i)(B)(1)(vi) are added effective 

November 5, 2007 to April 5, 2008; 

• Paragraphs (f)(1)(ii) and 

(g)(4)(i)(B)(1)(iii) are removed and 

reserved effective November 5, 2007; 

• Subsequent revision of § 229.32 is 

effective April 5, 2008 except for 

paragraphs (c)(5)(ii)(B), (c)(6)(ii)(B), 

(c)(7)(ii)(C), (c)(8)(ii)(B), (c)(9)(ii)(B), 

(d)(6)(ii)(D), and (d)(7)(ii)(D), which will 

be effective October 5, 2008. 

ADDRESSES: Copies of the Final 

Environmental Impact Statement/ 

Regulatory Impact Review for this 

action can be obtained from the 

ALWTRP Web site listed under the 

Electronic Access portion of this 

document. Atlantic Large Whale Take 

Reduction Team (ALWTRT) meeting 

summaries, progress reports on 

implementation of the ALWTRP, and 

the small entity compliance guide may 

be obtained by writing Diane Borggaard, 

NMFS, Northeast Region, 1 Blackburn 

Drive, Gloucester, MA 01930. For 

additional ADDRESSES and Web sites for 

document availability see 

SUPPLEMENTARY INFORMATION section. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to Mary Colligan, 

Assistant Regional Administrator for 

Protected Resources, National Marine 

Fisheries Service, Northeast Region, 1 

Blackburn Drive, Gloucester, MA 01930 

and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Diane Borggaard, NMFS, Northeast 

Region, 978–281–9300 Ext. 6503, 

diane.borggaard@noaa.gov; Kristy Long, 

NMFS, Office of Protected Resources, 

301–713–2322, kristy.long@noaa.gov; or 

Barb Zoodsma, NMFS, Southeast 

Region, 904–321–2806, 

barb.zoodsma@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

Several of the background documents 

for the ALWTRP and the take reduction 

planning process can be downloaded 

from the ALWTRP Web site at http:// 

www.nero.noaa.gov/whaletrp/. Copies 

of the most recent marine mammal stock 

assessment reports may be obtained by 

writing to Dr. Richard Merrick, NMFS, 

166 Water Street, Woods Hole, MA 

02543 or can be downloaded from the 

Internet at http://www.nefsc.noaa.gov/ 

psb/assesspdfs.htm. The complete text 

of the regulations implementing the 

ALWTRP can be found either in the 

Code of Federal Regulations (CFR) at 50 

CFR 229.32 or downloaded from the 

Web site, along with a guide to the 

regulations. 

Background 

This final rule implements 

modifications to the ALWTRP as 

suggested by the ALWTRT, as well as 

modifications deemed necessary by 

NMFS to meet the goals of the MMPA 

and ESA. Details concerning the 

development and justification of this 

final rule were provided in the preamble 

to the proposed rule (70 FR 35894, June 

21, 2005) and are not repeated here. 

This final rule also incorporates a recent 

amendment to the ALWTRP (72 FR 

34632, June 25, 2007) that implemented, 

with revisions, previous ALWTRP 

regulations by expanding the Southeast 

U.S. Restricted Area to include waters 

within 35 nm (64.82 km) of the South 

Carolina coast, dividing the Southeast 

U.S. Restricted Area into Southeast U.S. 

Restricted Areas North and South, and 

modified regulations pertaining to 

gillnetting within the Southeast U.S. 

Restricted Area. 

Changes to the Boundaries and Seasons 

The ALWTRP gear modifications for 

regulated areas of the east coast will 

extend out to the eastern edge of the 

exclusive economic zone (EEZ) 

(effective April 7, 2008) (See Figures 1 

and 2). The ALWTRP will also modify 

seasonal requirements along the east 

coast (effective April 7, 2008). Broadbased gear modifications will be 

required on a year-round basis from 

Maine to 41°18.2′ N. lat. and 71°51.5′ W. 

long. (Watch Hill, RI), south to 40°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°18.2′ N. lat. 

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

south to 40°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°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). 


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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°00′ N. lat. (near Savannah, GA) and 

29°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°00′ N. lat. and 27°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°00′ N. lat. and 

26°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°30′ N. lat. (just north of Cape 

Hatteras, NC) to 27°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°30′ N. lat. to 

27°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°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°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 ‘‘BroadBased 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 


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57106 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

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°18.2′ N. lat. and 71°51.5′ W. 

long. (Watch Hill, RI), south to 40°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 broadbased gear modifications year-round; 

the gear fished in the area south of this 

line to 32°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°00′ N. lat. will require gear 

modifications in the following areas and 

during the following seasonal time 

periods: between the 32°00′ N. lat. and 

29°00′ N. lat. east to the eastern edge of 

the EEZ from November 15–April 15; 

between 29°00′ N. lat. and 27°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 


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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°30′ W. long., south to the 

Virginia/North Carolina border, east to 

the eastern edge of the EEZ, and 

extending south to 32°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°00′ W. long. from 32°00′ N. lat. 

south to 26°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°00′ N. lat. to 29°00′ N. lat. (near New 

Smyrna Beach, FL) will be effective 

from November 15 to April 15, and 

between 29°00′ N. lat. and 27°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°00′ N. lat. to 

29°00′ N. lat. will be effective from 

November 15 to April 15, and between 

29°00′ N. lat. and 26°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°00′ N. lat. to 27°51′ N. lat. and east 

from 80°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 


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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°00′ W. 

long. from 27°51′ N. lat. to 26°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°00′ W. long. from 32°00′ N. lat. to 

27°51′ N. lat. will be designated as the 

Southeast U.S. Restricted Area, 

consisting of a northern area ‘‘N’’

between 32°00′ N. lat. and 29°00′ N. lat. 

and a southern area ‘‘S’’ between 29°00′ 

N. lat. and 27°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°00′ 

N. lat. to 29°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°00′ N. lat. 

to 26°46.5′ N. from December 1 through 

March 31, and the Southeast Atlantic 

gillnet fishery will be regulated in 

waters from 29°00′ N. lat. to 27°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°51′ N. lat. to 26°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°18.2′ N. lat. and 71°51.5′ W. long. 

(Watch Hill, RI), south to 40°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 


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area south of this line to 32°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°00′ N. lat. will be 

required to comply with the broadbased gear modifications in the 

following areas and seasonal time 

periods: All gillnet fisheries (Southeast 

Atlantic and Southeastern U.S. Atlantic 

shark) between 32°00′ N. lat. and 29°00′ 

N. lat. from November 15–April 15; 

Southeast Atlantic gillnet fishery 

between 29°00′ N. lat. and 27°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°00′ N. lat. and 

26°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° 

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°30′ .............................................................................. 70°30′ (NW Corner) 

2W ........................................ 42°30′ .............................................................................. 69°24′ 

3W ........................................ 41°48.9′ ........................................................................... 69°24′ 

4W ........................................ 41°40′ .............................................................................. 69°45′ 

5W ........................................ 41°40′ .............................................................................. 69°57′ along the eastern shoreline of Cape Cod to 

6W ........................................ 42°04.8′ ........................................................................... 70°10′ 

7W ........................................ 42°12′ .............................................................................. 70°15′ 

8W ........................................ 42°12′ .............................................................................. 70°30′ 

1W ........................................ 42°30′ .............................................................................. 70°30′ (NW Corner) 

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

1E ......................................... 42°30′ .............................................................................. 69°45′ (NW Corner) 

2E ......................................... 42°30′ .............................................................................. 67°27′ 

3E ......................................... 42°09′ .............................................................................. 67°08.4′ 

4E ......................................... 41°00′ .............................................................................. 69°05′ 

5E ......................................... 41°40′ .............................................................................. 69°45′ 

1E ......................................... 42°30′ .............................................................................. 69°45′ (NW Corner) 

Revised SAM Gear Modifications 

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 


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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. 


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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 MaineCanada 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 


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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 MidAtlantic; 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°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 

§ 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 

§ 229.3 and § 229.32 regarding the 

activities prohibited under the 

ALWTRP. Specifically, in paragraphs 

(h) through (l) of § 229.3, and where 

applicable in § 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 


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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 humancaused mortalities and serious injury 


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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 yearround 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 


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(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 


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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 nonphysical 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 


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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 riskaverse. 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 


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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 


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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 °F (21.1 °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 °F (13–15 °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 MidAtlantic 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, coastwide 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 yearround 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, coastwide 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 MidAtlantic 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. 


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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-byregion 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 


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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 pre1997 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 


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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 MidAtlantic 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 MidAtlantic 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°18.2′ N. lat. and 71°51.5′ 

W) south to 40°00′ N. is arbitrary and 

not sufficiently protective of right 

whales, which have sometimes been 

seen west of 72°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°18.2′ N. lat. and 71°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°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 


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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 yearround requirements provided in 

Alternative 4 for the waters off the MidAtlantic 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 broadbased 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 MidAtlantic. 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 


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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 


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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 midSeptember 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. 


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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 statepermitted 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 


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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 twofold. 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 


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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°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°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°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°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°46.5′ N. should be the 

southern boundary for Other Southeast 

gillnet waters. 

Response: NMFS believes that 27°51′ 

N. is the appropriate southern boundary 

for Southeast Atlantic gillnet fisheries 

under the ALWTRP. The line for 

operational restrictions is north of 

27°51′ N. for both Southeast Atlantic 

gillnet and trap/pot fisheries. Right 

whales are occasionally found in waters 

south of 27°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°51′ N. south to 

26°46.5′ N. NMFS will continue to 

monitor this area from 27°51′ N. south 

to 26°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°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°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°00′ N. lat. during the restricted 

period and that, in general, fishermen 

are targeting Spanish mackerel with 

runaround nets south of 29°00′ N. lat. 

and have used sink gillnets to target 

whiting north of 29°00′ N. lat. For this 

reason, and due to the seasonal northsouth 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°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°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°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 


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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 yearround; (3) combining an expanded yearround 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/whalenetstuff/reportsRW_NE). 

Response: NMFS believes that the 

expanded SAM area implemented in 

this final rule provides increased 

protection for right whales, as well as 


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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 yearround basis. NMFS believes that many 

fishermen chose to convert on a yearround 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 


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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 


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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 


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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. 


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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, bottomtending 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 


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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 phasein 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 MidAtlantic 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 


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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 


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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 nonfloating 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 


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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. 


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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 statemandated 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 


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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 


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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 lifethreatening 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 


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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 


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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°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 


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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 


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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 broadbased 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 


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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 yearround 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 


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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 MidAtlantic 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 


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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 


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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 MidAtlantic. 

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 midAtlantic 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 


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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. 


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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. 


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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 noncompliance. 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 


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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 timearea 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. 


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Response: NMFS agrees that ship 

strikes and the need to mitigate risks 

posed by large, fast-moving vessels are 

important to large whale conservation 

and recovery. As such, NMFS is 

pursuing other rulemaking strategies 

and policy discussions to address the 

issue of ship strikes. See response to 

Comment 279. 

Comment 284: Some commenters 

stated that NMFS should address all 

sources of endangered whale mortality. 

Many commenters were concerned 

about the level of regulation on the 

fishing industry relative to other causes 

of mortality like shipping and land 

based activities (e.g., water quality 

issues). One commenter pointed to 

those which endanger whales by 

disposing of waste at sea as another 

example of an unregulated group that is 

not reached by today’s regulations. 

Some commenters stated that all 

industries should share the regulatory 

burden, yet some are unregulated (e.g., 

shipping and Canadian fishing gear). 

Other commenters stated that NMFS 

should seek a comprehensive whale 

protection strategy that takes other 

impacts into account nationally and 

internationally to share the 

responsibility of conservation efforts. 

Response: NMFS realizes that other 

marine resource user groups are 

affecting large whale populations, and 

NMFS will continue efforts to reduce 

these impacts. NMFS is pursuing 

various regulatory and non-regulatory 

strategies for reducing the impact of 

vessel collisions on northern right 

whales. See response to Comment 279. 

Many ocean disposal and discharge 

activities require permits issued by 

other Federal agencies such as the U.S. 

Environmental Protection Agency and 

the U.S. Army Corps of Engineers. 

Under section 7 of the ESA, any Federal 

agency issuing such a permit must 

consult with NMFS (or U.S. Fish and 

Wildlife Service) to ensure that the 

issuance of the permit is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of critical habitat. Section 

7 consultations often result in 

restrictions and mitigation measures 

that are required of the permit applicant 

in order to reduce impacts to 

endangered species. 

NMFS also continues to participate in 

international fora that address impacts 

to large whales. NMFS is continuing to 

work with Canadian biologists and to 

support efforts to expand 

disentanglement efforts in Canadian 

waters. NMFS will continue to work 

with the government of Canada toward 

development of similar protective 

measures from fishing operations for 

right whales in Canadian waters. NMFS 

has also initiated discussions regarding 

an International Conservation 

Agreement for right whales with 

Canada, which would include the 

impacts of shipping on right whales. 

The Conservation Committee of the 

International Whaling Commission 

(IWC) identified ship strike as a priority 

item in the conservation agenda, and 

recently formed a ship strikes working 

group to assess the level of threat caused 

by maritime traffic worldwide and to 

examine policies that could be 

implemented to mitigate the impact of 

ship strikes. The International Maritime 

Organization (IMO) has reviewed and 

approved proposals to address the 

impacts of shipping on marine 

mammals, including approval of the 

right whale Mandatory Ship Reporting 

System in 1998 and the shifting of the 

Bay of Fundy shipping lanes in Canada 

in 2003. In December 2006, the IMO 

approved a proposal to shift the Boston 

Traffic Separation Scheme to reduce the 

overlap between heavy shipping traffic 

and large whales. 

International organizations such as 

the IWC and the International Council 

on the Exploration of the Sea (ICES) are 

examining the effects of ocean noise on 

marine mammals, including the noise 

generated by shipping, oil drilling, and 

seismic exploration. NMFS convened 

the first international symposium on 

shipping noise and marine mammals in 

2003. All of these groups are 

considering strategies for managing 

human-produced noise sources in the 

marine environment. 

Many of NMFS’ activities to promote 

the conservation and recovery of large 

whales are directed by actions outlined 

in recovery plans developed in 

accordance with the ESA. Recovery 

plans are designed to provide 

comprehensive strategies for recovering 

endangered species. 

Comment 285: Several commenters 

believe that the negative impacts of the 

whale watch industry need to be 

assessed. One commenter said that there 

is a problem with whale watching 

vessels getting too close to whales. 

Response: NMFS monitors the 

activities of the whale watch industry. 

NMFS has developed a set of whale 

watching guidelines for the Northeast, 

which outline appropriate speed limits 

and approach distances to reduce the 

potential for harassment of whales. 

NMFS also has a regulation prohibiting 

approaching closer than 500 yards (1500 

ft, 457.2 m) to a right whale. NMFS 

conducts active outreach to whale 

watch companies to encourage 

compliance with these guidelines. 

NMFS is also working on a proposed 

rule to minimize the potential for future 

serious injury and mortality of whales 

from whale watch vessels. 

Comment 286: One commenter asked 

why NMFS is not attacking the real 

problem, which the commenter said is 

cruise ships, ferries, tankers, and whale 

watchers. The commenter said some 

vessels leave Bar Harbor going 35 miles 

an hour (56.3 km/h), and he hears on 

the radio about the whales they are 

seeing. The commenter said that these 

vessels could be chasing whales into 

fishing gear. 

Response: NMFS is currently 

pursuing a comprehensive strategy of 

regulatory and non-regulatory measures 

to reduce the impact of shipping on 

right whales. See response to Comment 

279. Although it is possible that a whale 

could become entangled in fishing gear 

while attempting to escape an oncoming 

vessel, NMFS is not aware of such an 

event being documented. Researchers 

continue to investigate the 

circumstances under which whale/gear 

and whale/vessel interactions occur. 

Comments on Gear Reduction 

Comment 287: Two commenters 

referenced LMA 3 as an area where 

there was a reduction in lobster traps 

being fished. One commenter urged 

NMFS to consider the recent LMA 3 

offshore historical qualification process 

that reduced the number of offshore 

permits from 968 to 133 and the number 

of traps from approximately 400,000 to 

160,000. The other commenter stated 

that in LMA 3 there has been a 40- 

percent reduction in traps fished. The 

commenter stated that trap reduction is 

the most valuable way to stop 

interaction with whales. Another 

commenter stated that reducing the 

number of traps in an area, such as in 

LMA 3 will be better than gear 

modifications and it will better help 

protect whales. The Federal lobster 

management plan identifies and 

restricts the number of fishermen able to 

fish offshore, and this smaller number of 

fishermen will reduce their traps, 

buoylines, and loops. The commenter 

estimated a nearly 50 percent reduction 

over the next five to seven years. One 

commenter states that the overall 

amount of gear and fishing effort will be 

reduced over the next couple of years. 

The commenter states the number of 

lobstermen is declining from 3,000 to 

less than 150 and the amount of gear in 

the water will decline by more than 40 

percent. 

Response: NMFS acknowledges the 

effort reductions that are occurring in 

LMA 3, and agrees that this should help 

reduce serious injury and mortality of 


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large whales. NMFS believes these effort 

reductions will be critical to future 

discussions with the ALWTRT on how 

to reduce risk associated with vertical 

line. However, NMFS believes reducing 

risk associated with groundline through 

this final rule is appropriate even with 

the effort reductions occurring offshore. 

Additionally, with this final rule, NMFS 

intends to address all fishing gear that 

poses a risk to large whales similarly. 

Comment 288: One commenter states 

that the figures in the DEIS do not 

reflect an additional two-year lobster 

gear reduction along with continual 

passive reductions through a proposed 

trap transferability plan recommended 

to the ASMFC. The commenter would 

like to see a trap buyback to further 

reduce the number of traps to help 

whales and the lobster fishery. 

Response: The commenter is likely 

referring to Addenda IV and V to the 

Lobster FMP. As discussed in Chapter 9 

of the FEIS, Addendum IV as initially 

proposed incorporated an accelerated 

trap reduction program and the 

implementation of a transferable trap 

program in LMA 3 (among other 

provisions). ASMFC deferred action on 

this proposal, opting instead to address 

this issue under Addendum V. The 

approach originally outlined in 

Addendum IV proposed an overall trap 

cap of 2,600 traps and a two-tiered tax 

on the purchase of traps, with a higher 

tax applied when the purchaser owns 

2,100 traps or more. In response to 

concerns raised at public hearings that 

a 2,600 trap cap may be too high, the 

LMA 3 Lobster Conservation 

Management Team (LCMT) amended its 

original proposal under Draft 

Addendum V. Addendum V proposed a 

cap of 2,200 traps and a two-tiered tax 

on the purchase of traps, with a higher 

tax imposed when the purchaser owns 

1,800 or more. Addendum V was 

approved by the Board at the March 

2004 Board meeting and went into effect 

in 2005. 

NMFS and others have supported 

buybacks of groundline. See response to 

Comment 93. Limiting the number of 

traps in a fishery, if resulting in reduced 

fishing effort, may provide conservation 

benefits to large whales. However, this 

management measure is beyond the 

scope of this final rule. NMFS is 

pursuing measures such as trap effort 

reduction through other rulemaking 

actions (e.g., 70 FR 24495, May 10, 

2005). 

Comments Regarding Canadian Gear/ 

Fisheries 

Comment 289: Several commenters 

said that Maine fishermen mark 

balloons with fishermen’s name, harbor 

name, and boat name. Commenters 

stated that most balloons picked up that 

are not marked come from Canada. 

Another commenter said that he fears 

being evicted from the lobster grey area 

because Canadian and U.S. gear is being 

fished side by side and one would not 

be able to tell whose gear is responsible 

for potential entanglements. 

Response: NMFS disagrees with the 

commenters’ claim that most recovered 

polyballs or ‘‘balloons’’ that are not 

marked come from Canada. Further, 

NMFS notes that it is not revising the 

ALWTRP based on the recovery of 

unmarked polyballs or gear that may 

have originated from the grey area. The 

need for the revisions of the ALWTRP 

is the continuing risk of serious injury 

and mortality of Atlantic large whales 

due to entanglement in commercial 

fishing gear. NMFS considered several 

factors when evaluating the 

entanglement information: (1) A 

mortality or injury may involve multiple 

factors (e.g., whales that have been both 

struck by a ship and entangled are not 

uncommon); (2) the actual gear type/ 

source is often uncertain; and (3) several 

types of gear may be involved in a given 

reported entanglement. NMFS limits a 

‘‘serious injury’’ designation to only 

those reports that offer substantiated 

evidence that the injury is likely to lead 

to the whale’s death. Injuries that 

impede the whale’s locomotion or 

feeding are not considered serious 

injuries unless they are likely to be fatal 

in the foreseeable future. 

Comment 290: One commenter 

expressed concern over the lack of 

Canadian take reduction efforts and gear 

modification requirements. The 

commenter expressed concern that all 

entangled whales get counted against 

U.S. fishermen. 

Response: NMFS is issuing this final 

rule specifically to address commercial 

fishery impacts from U.S. fisheries. 

NMFS acknowledges that entanglements 

with fishing gear from Canadian 

fisheries may also cause serious injury 

and mortality to large whales. NMFS is 

currently addressing these threats 

through formal discussions with 

Canada. For example, NMFS is working 

with representatives from the Canadian 

DFO to develop and implement 

protective measures for right whales in 

Canadian waters. The ALWTRP is 

designed to respond to the threats posed 

by domestic fishing gear. 

Comment 291: Several commenters 

state that NMFS should work more 

closely with the Canadian Government 

to harmonize American and Canadian 

fishery regulations. They state that 

Canadian fishing gear is a major cause 

of whale entanglements that lead to 

injuries and mortalities. Commenters 

encouraged NMFS to pursue parallel 

conservation measures with the 

shipping industry and military vessels 

in the U.S. as well as Canada. One 

commenter encouraged NMFS to work 

with the Canadian Government through 

the Canadian Species at Risk Act for 

joint efforts to protect right whales. 

Response: Coordination between 

Canada and the U.S. concerning 

transboundary marine mammal and 

other protected species has been 

ongoing since mid-1990. In earlier years 

the coordinated efforts focused on 

broader issues concerning Atlantic 

salmon, harbor porpoise, and right 

whales. At that time, most of the issues 

regarding right whales were secondary 

as both countries addressed other 

pressing issues. Although both countries 

continued to work cooperatively on 

right whale issues, limited resources 

prevented both countries from meeting 

on a regular basis. However, in 

anticipation of the implementation of 

SARA, the group was reconstituted in 

January 2003. The focus of the group 

was still based on species-specific 

conservation, but the charge for the 

working group was expanded to include 

joint assessments, listing criteria, and 

recovery planning and implementation 

in a broader sense to include all 

transboundary marine mammal and 

protected species stocks (with the 

exception of Atlantic salmon). The 

working group’s primary efforts are 

toward right whale recovery efforts. 

NMFS is continuing to work with the 

Canadian Government to develop and 

implement protective measures for right 

whales in Canadian waters. In addition, 

NMFS is working with Canadian whale 

biologists and support teams to improve 

and expand disentanglement efforts in 

Canadian waters. 

Comments on the Number of Traps per 

Trawl 

Comment 292: One commenter 

encourages more traps per buoy line 

whenever possible. For areas in eastern 

Maine where sinking groundline cannot 

be used, the commenter thinks reducing 

line by shifting to longer trawls where 

possible would be a viable option. The 

commenter recommends a limit on the 

number of traps per lobster trawls as an 

emergency action. Another commenter 

opposes putting limits on the number of 

traps per trawl. The commenter states 

that he cannot fish more than 25 traps 

per trawl due to boat size. 

Response: In this final rule, NMFS is 

maintaining the status quo for the 

minimum number of traps/pots with a 

single buoy line in specific management 

areas. Additionally, NMFS believes that 


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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 broadbased 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, 


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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 


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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 


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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 longterm 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 longterm 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. 


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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 


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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 exvessel 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’’


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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 MidAtlantic. 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 insitu 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. 


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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) Danforthstyle 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 


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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 ESAlisted 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 nonwhale species and explicitly 

acknowledges that weak links are not 

likely to reduce bycatch of most nonwhale 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 nonfloating 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 


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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 


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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 midway 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) Danforthstyle 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) Danforthstyle 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) Danforthstyle 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 

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in requirement for observer coverage in 

the ‘‘Southeast U.S. Monitoring Area,’’

from 32°00′ N. lat. to 26°46.5′ 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°51′ N. lat. to 26°46.5′ N. 

lat. landward of 80°00′ 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 riskadverse 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 MidAtlantic 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°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°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°00′ W. long., but this area 

will now only extend from 27°51′ N. lat. 

south to 26°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°00′ W. long. from 

32°00′ N. lat. south to 26°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°00′ N. lat. south 

to 27°51′ N. lat. for the Southeast 

Atlantic gillnet fishery, and south to 

26°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°00′ W. long. 

in the Southeast region. Hence, less 

restrictive ALWTRP measures will be 

required in ‘‘Other Southeast Gillnet 

Waters’’ east of 80°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°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°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. 


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(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 

§ 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°00′ N. lat. 

would be seasonal rather than yearround. Waters north of 40°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 yearround 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 


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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 broadbased, 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 onethird 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 


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changes, including: (1) Expanding 

exempted waters off of Maine and Long 

Island Sound; (2) allowing anchored 

gillnet vessels to use an alternate weak 

link configuration; and (3) allowing 

anchored gillnet vessels operating 

within 300 yards (900 ft or 274.3 m) of 

the shoreline of North Carolina to use an 

alternate anchoring configuration. These 

and other minor variations decrease the 

number of affected vessels and result in 

reductions in compliance costs, while 

sacrificing little in terms of 

entanglement risk reduction. 

The small entities affected by this 

final rule are commercial trap/pot and 

gillnet fisherman operating in Northeast 

Atlantic, Mid-Atlantic, and Southeast 

Atlantic waters. The analysis of the final 

preferred alternative identified 

approximately 4,350 vessels that would 

be affected by this final rule (this 

number does not include Southeastern 

U.S. Atlantic shark gillnet vessels, as the 

analysis for this action concluded that 

these vessels would not incur 

significant compliance costs). 

In the lobster trap/pot fishery, 

approximately 2,900 vessels would be 

affected. The analysis identified 11 

vessel segments that can be considered 

‘‘heavily affected’’, where estimated 

compliance costs exceeded 15 percent 

of average annual revenues. Nearly all of 

these segments are composed of smaller 

(Class I or Class II) vessels, which 

typically have a smaller revenue base 

with which to absorb compliance costs. 

Seven of these segments represent 

lobster/trap vessels. 

Approximately 1,980 other vessels fell 

into the ‘‘at-risk vessel’’ category, where 

estimated compliance costs were 

between 5 and 15 percent of average 

annual revenues. The majority of at-risk 

vessels are Class II lobster vessels; of 

these, the most affected subsets are 

vessels in Maine, which are estimated to 

have greater gear loss costs. A variety of 

other vessels fall in the at-risk range, 

including northern nearshore lobster 

vessels, several categories of other trap/ 

pot vessels (e.g., black sea bass, hagfish, 

red crab), and Class I gillnet vessels in 

the Mid-Atlantic. 

This final rule contains collection of 

information requirements subject to the 

Paperwork Reduction Act (PRA), 

because of the proposed gear marking 

scheme. The proposed collection of 

information requirement was submitted 

to the Office of Management and Budget 

(OMB) for approval, and is still under 

review. Once the information collection 

has been approved, NMFS will publish 

a Federal Register notice providing the 

OMB approval control number. Public 

comment was sought regarding whether 

this proposed collection of information 

is necessary for the proper performance 

and function of the agency, including: 

The practical utility of the information; 

the accuracy of the burden estimate; the 

opportunities to enhance the quality, 

utility, and clarity of the information to 

be collected; and the ways to minimize 

the burden of the collection of 

information, including the use of 

automated collection techniques or 

other forms of information technology. 

Send comments regarding this burden 

estimate, or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

This collection of information 

requirement applies to a total of 2,695 

newly affected vessels, including 64 

model vessel types. Model vessel types 

were developed for gillnet fisheries, 

lobster trap/pot fisheries, and other 

trap/pot fisheries. Total burden hours 

for all newly affected vessels is 40,702 

over three years or 13,567 per year. 

Total cost burden for all newly affected 

vessels is $26,863 over three years or 

$8,954 per year. For more information, 

please see the PRA submission 

associated with this rulemaking. 

Any information collection 

requirements subject to PRA and related 

to VMS requirements in the U.S. 

Southeast Atlantic shark gillnet fishery 

were addressed in a previous 

rulemaking (69 FR 51010, August 17, 

2004) and approved by OMB under 

control number 0648–0372. Fishermen 

will not incur any additional costs as 

they currently have all the equipment 

required to comply with the reporting 

requirements. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

NMFS has determined that this final 

action is consistent to the maximum 

extent practicable with the approved 

coastal management program of the U.S. 

Atlantic coastal states. The proposed 

rule, RIR, RFA analysis, and DEIS were 

submitted to the responsible state 

agencies for review under section 307 of 

the Coastal Zone Management Act 

(CZMA). The following states agreed 

with NMFS’ determination: New 

Hampshire, Rhode Island, New Jersey, 

Pennsylvania, Delaware, Virginia, South 

Carolina, Georgia, and Florida. Maine, 

Massachusetts, and Maryland did not 

respond, therefore, consistency is 

inferred. Three states, Connecticut, New 

York, and North Carolina conditionally 

concurred with NMFS’ conclusion that 

the proposed action is consistent with 

the enforceable policies of the approved 

coastal management program for that 

state; however, the North Carolina 

conditional concurrence was treated as 

an objection because NMFS could not 

meet the state agency’s conditions. 

The Connecticut Department of 

Environmental Protection and New 

York State Department of 

Environmental Conservation concurred 

with NMFS’ determination that the 

amendments to the ALWTRP are 

consistent to the maximum extent 

practicable with the enforceable policies 

of the states’ Coastal Management 

Programs provided that NMFS adopt the 

modifications recommended by the 

Connecticut Marine Fisheries Division. 

The recommended modifications 

included an adjustment of the proposed 

ALWTRP exempted line for Long Island 

Sound. Without this adjustment, the 

Connecticut Department of 

Environmental Protection indicated that 

the proposed action would create an 

unjustified economic hardship on the 

Connecticut fishing industry, as there is 

an absence of whale interactions in this 

area. This final rule adopts the 

modifications suggested by the 

Connecticut Marine Fisheries Division 

and New York State Department of 

Environmental Conservation; therefore, 

in accordance with 15 CFR 930.4(a)(2), 

the final rule was modified pursuant to 

the state agency’s conditions that allow 

the state agency to concur with the 

Federal action. 

The NCDCM also conditionally 

concurred with NMFS’ determination 

that the proposed action is consistent to 

the maximum extent practicable with 

the enforceable policies of North 

Carolina’s coastal management program. 

NCDCM was concerned that the 

proposed action would adversely affect 

the public’s ability to conduct 

recreational and/or commercial fishing, 

causing safety hazards as well as 

economic and operational burdens. 

Thus, NCDCM offered three conditions 

that the agency would have to adopt in 

order to be consistent with North 

Carolina’s coastal management program. 

First, NCDCM recommended that the 

mid-Atlantic gillnet restriction season 

from December 1 through March 31 of 

any year should not be expanded to the 

proposed period of September 1 through 

May 31. Alternatively, NCDCM 

suggested that, if the season is 

expanded, the inshore small mesh 

gillnet fishery (<5 inches (0.1 m), 300- 

yard (274.3 m or 900 ft) maximum set) 

be allowed to use deadweight anchors 

on the inshore end of the net and 


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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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BILLING CODE 3510–22–C 

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. 


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57180 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

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. 

■ 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 

■ 1. The authority citation for 50 CFR 

part 229 continues to read as follows: 

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

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

et seq. 

■ 2. In § 229.2, 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: 

§ 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. 

* * * * * 

■ 3. In § 229.3: 

■ a. Redesignate paragraphs (l), (m), (n), 

(o), (p), (q), and (r) as paragraphs (m), 

(n), (o), (p), (q), (r), and (s), respectively; 

and 

■ b. Paragraphs (h) through (k) are then 

revised and paragraph (l) is added to 

read as follows: 

§ 229.3 Prohibitions. 

* * * * * 

(h) It is prohibited to fish with or 

possess trap/pot gear in the areas and 

during the times specified in § 229.32 

(c)(2) through (c)(9) unless the trap/pot 

gear complies with the marking 

requirements, closures, modifications, 

and restrictions specified in 

§ 229.32(b)(2)(ii), (b)(2)(iii), and (c)(1) 

through (c)(9), or unless the gear is 

stowed as specified in § 229.2. 

(i) It is prohibited to fish with or 

possess anchored gillnet gear in the 

areas and during the times specified in 

§ 229.32(d)(2) through (d)(7) unless that 

gillnet gear complies with the marking 

requirements, closures, modifications, 

and restrictions specified in 

§ 229.32(b)(2)(ii), (b)(2)(iii), and (d)(1) 

through (d)(7), or unless the gear is 

stowed as specified in § 229.2. 

(j) It is prohibited to fish with or 

possess drift gillnet gear in the areas and 

during the times specified in 

§ 229.32(e)(1) through (e)(6) unless the 

drift gillnet gear complies with the 

marking requirements, closures, 

modifications, and restrictions specified 

in § 229.32(b)(2)(ii), (b)(2)(iii), and (e)(1) 

through (e)(6), or unless the gear is 

stowed as specified in § 229.2. 

(k) It is prohibited to fish with or 

possess gillnet gear in the areas and 

during the times specified in 

§ 229.32(f)(1) and (g)(1) unless the 

gillnet gear complies with the marking 

requirements, closures, modifications, 

and restrictions specified in 

§ 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 

§ 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 § 229.32(f)(1), (g)(1) and (h)(1) unless 

the gear complies with the marking 

requirements, closures, modifications, 

and restrictions specified in 

§ 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 § 229.2. 

* * * * * 

■ 4. Section § 229.32 is amended as 

follows: 

■ A. Paragraphs (f) introductory text, 

(f)(2), and (f)(3) are revised effective 

November 5, 2007. 

■ B. Amendments to § 229.32 (f)(1)(iii) 

and (g)(4)(i)(B)(1)(vi) are added effective 

November 5, 2007 to April 5, 2008. 

■ C. Paragraphs (f)(1)(ii) and 

(g)(4)(i)(B)(1)(iii) are removed and 

reserved effective November 5, 2007. 


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Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 57181 

§ 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°51′ N. lat. south to 26°46.50′ N. 

lat. (near West Palm Beach, FL), 

extending from the shoreline or 

exemption line out to 80°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 

§ 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°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° 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. 

* * * * * 

■ 5. Revise § 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: 

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

N ‘‘2’’, Quoddy Narrows) 

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

‘‘1’’ Whistle, West Quoddy Head) 

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

N ‘‘2’’, Morton Ledge) 

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

‘‘28M’’ Whistle, Baileys Mistake) 

44°37.70′ N. lat., 67°09.75′ W. long. 

(Obstruction, Southeast of Cutler) 

44°27.77′ N. lat., 67°32.86′ W. long. 

(Freeman Rock, East of Great Wass 

Island) 

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

‘‘2SR’’ Bell, Seahorse Rock, West of 

Great Wass Island) 

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

N ‘‘2’’, Petit Manan Island) 

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

‘‘2S’’ Bell, Schoodic Island) 

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

‘‘8BI’’ Whistle, Baker Island) 

44°08.36′ N. lat., 68°14.75′ W. long. 

(Southern Point, Great Duck Island) 

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

‘‘2’’ Bell, Roaring Bull Ledge, Isle Au 

Haut) 

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

‘‘2A’’ Bell, Old Horse Ledge) 

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

‘‘5TB’’ Bell, Two Bush Channel) 


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57182 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

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

‘‘2 OM’’ Whistle, Old Man Ledge) 

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

C ‘‘PL’’, Pemaquid Ledge) 

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

‘‘2BR’’ Bell, Bantam Rock) 

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

‘‘20ML’’ Bell, Mile Ledge) 

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

N ‘‘BS’’, Bulwark Shoal) 

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

‘‘1’’, East Hue and Cry) 

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

‘‘WI’’ Whistle, Wood Island) 

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

‘‘CP’’ Whistle, Cape Porpoise) 

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

N ‘‘2MR’’, Murray Rock) 

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

‘‘2KR’’ Whistle, Kittery Point) 

43°02.55′ N. lat., 70°43.33′ W. long. 

(Odiornes Pt., Portsmouth, New 

Hampshire) 

New Hampshire 

A line from 42°53.691′ N. lat., 

70°48.516′ W. long. to 42°53.516′ N. 

lat., 70°48.748′ W. long. (Hampton 

Harbor) 

A line from 42°59.986′ N. lat., 

70°44.654′ W. long. to 42°59.956′ N., 

70°44.737′ W. long. (Rye Harbor) 

Rhode Island 

A line from 41°22.441′ N. lat., 

71°30.781′ W. long. to 41°22.447′ N. 

lat., 71°30.893′ W. long. (Pt. Judith 

Pond Inlet) 

A line from 41°21.310′ N. lat., 

71°38.300′ W. long. to 41°21.300′ N. 

lat., 71°38.330′ W. long. (Ninigret 

Pond Inlet) 

A line from 41°19.875′ N. lat., 

71°43.061′ W. long. to 41°19.879′ N. 

lat., 71°43.115′ W. long. 

(Quonochontaug Pond Inlet) 

A line from 41°19.660′ N. lat., 

71°45.750′ W. long. to 41°19.660′ N. 

lat., 71°45.780′ W. long. (Weekapaug 

Pond Inlet) 

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°34.717′ N. lat., 

80°08.565′ W. long. to 32°34.686′ N. 

lat., 80°08.642′ W. long. (Captain 

Sams Inlet) 

(4) Sinking 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 


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1Fishermen are also encouraged to maintain their 

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

considered to be less of an entanglement threat and 

are thus preferable to knots. 

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. 

(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 

§ 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 


yshivers on PROD1PC62 with RULES2
57184 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

2Fishermen using red crab trap/pot gear should 

refer to § 229.32(c)(9) for the restrictions applicable 

to red crab trap/pot fishery. 

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 

§ 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 § 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 

§ 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 § 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 

§ 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 § 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°15′ N. lat. and west of 70°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 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 § 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°30′ N. lat. south to 27°51′ 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. 

(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°18.2′ N. lat., 71°51.5′ W. 

long. (Watch Hill Point, RI) south to 

40°00′ N. lat., and then east to the 

eastern edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

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

area-specific requirements listed below, 

or unless the gear is stowed as specified 

in § 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 


yshivers on PROD1PC62 with RULES2
Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 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°18.2′ N. lat., 

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

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

the eastern edge of the EEZ, and 

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

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

the EEZ, unless that gear complies with 

the gear marking requirements specified 

in paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, the area-specific requirements 

specified in paragraphs (c)(5)(ii)(A) and 

(c)(5)(ii)(B) of this section, or unless the 

gear is stowed as specified in § 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°00′ N. lat. 

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

eastern edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, 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 § 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°00′ N. lat. 

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

eastern edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in (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 § 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 areaspecific requirements listed below, or 

unless the gear is stowed as specified in 

§ 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 areaspecific requirements listed below, or 

unless the gear is stowed as specified in 

§ 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 


yshivers on PROD1PC62 with RULES2
57186 Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 

3Fishermen using red crab trap/pot gear should 

refer to § 229.32(c)(9) for the restrictions applicable 

to red crab trap/pot fishery. 

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 Nearshore3 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°30′ N lat. south to 

27°51′ N lat. and extending inshore to 

the shoreline or exemption line, with 

the exception of those waters exempted 

under paragraph (a)(3) of this section. 

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 Southern Nearshore Trap/Pot 

Waters Area that is east of a straight line 

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

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

lat., unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed here, or unless the 

gear is stowed as specified in § 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°18.2′ 

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

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

then east to the eastern edge of the EEZ, 

and bounded on the south by 32°00′ N. 

lat., and east to the eastern edge of the 

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements in 

paragraph (c)(1) of this section, 

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 § 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°00′ 

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

to the eastern edge of the EEZ, unless 

that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, 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 § 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°00′ 

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

to the eastern edge of the EEZ, unless 

that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, 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 § 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° 

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

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

and then east to the eastern edge of the 

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, and the area-specific 

requirements listed below, or unless the 

gear is stowed as specified in § 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 


yshivers on PROD1PC62 with RULES2
Federal Register / Vol. 72, No. 193 / Friday, October 5, 2007 / Rules and Regulations 57187 

4Fishermen 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. 

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°18.2′ N. lat., 71°51.5′ W. long. 

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

lat. and then east to the eastern edge of 

the EEZ, and bounded on the south by 

a line at 32°00′ N. lat., and east to the 

eastern edge of the EEZ, unless that gear 

complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal trap/pot 

gear requirements specified in 

paragraph (c)(1) of this section, and 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 § 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°00′ N. lat. south to 29°00′ N. lat. and 

east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, 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 § 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°00′ N. lat. south to 27°51′ 

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

EEZ, unless that gear complies with the 

gear marking requirements specified in 

paragraph (b) of this section, the 

universal trap/pot gear requirements 

specified in paragraph (c)(1) of this 

section, 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 § 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. 

(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 § 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 areaspecific 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 § 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°02.2′ N. 

lat./69°02′ W. long., 41°43.5′ N. lat./ 

69°36.3′ W. long., 42°10′ N. lat./68°31′ 

W. long., and 41°38′ N. lat./68°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 


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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 § 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 § 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°02.2′ N. lat./69°02′ W. long., 41°43.5′ 

N. lat./69°36.3′ W. long., 41°40′ N. lat./ 

69°45′ W. long., and 41°00′ N. lat./ 

69°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 § 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°15′ N. lat. and west of 70°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 areaspecific 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 § 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°30′ W. long. 

south to 36°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°18.2′ N. lat., 

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

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

the eastern edge of the EEZ, unless that 

gear complies with the gear marking 

requirements specified in paragraph (b) 

of this section, the universal 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 § 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 


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

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

then east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, the 

universal anchored gillnet gear 

requirements specified in paragraph 

(d)(1) of this section, and the areaspecific 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 § 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°30′ W. long. 

south to 36°33.03′ N. lat. and east to the 

eastern edge of the EEZ, and bounded 

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

to the eastern edge of the EEZ. 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 

§ 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. 


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(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) Danforthstyle 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 §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 §

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 § 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°02.2′ N. 

lat./69°02′ W. long., 41°43.5′ N. lat./ 

69°36.3′ W. long., 42°10′ N. lat./68°31′ 

W. long., and 41°38′ N. lat./68°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 § 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 § 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 § 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°02.2′ N. lat./69°02′ W. long., 41°43.5′ 

N. lat./69°36.3′ W. long., 41°40′ N. lat./ 

69°45′ W. long., and 41°00′ N. lat./ 

69°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 


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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 § 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 § 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°15′ N. lat. and west of 70°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 § 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 § 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°30′ W. long. 

south to 36°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 § 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 § 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°18.2′ N. lat., 71°51.5′ W. long. (Watch 

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

then east to the eastern edge of the EEZ, 

unless that gear complies with the gear 

marking requirements specified in 

paragraph (b) of this section, or unless 

the gear is stowed as specified in 

§§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 § 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°30′ W. long. south to 36°33.03′ 

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

EEZ, and bounded on the south by 

32°00′ N. lat., and east to the eastern 

edge of the EEZ. 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 § 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 § 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°51′ (1) 

SERA2 .................. 27°51′ 80°00′ 

SERA3 .................. 32°00′ 80°00′ 

SERA4 .................. 32°36′ 78°52′ 

SERA5 .................. 32°51′ 78°36′ 

SERA6 .................. 33°15′ 78°24′ 

SERA7 .................. 33°27′ 78°04′ 

SERA8 .................. (2) 78°33.9′ 

1Florida shoreline. 

2South 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°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°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 


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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°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 areaspecific 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°00′ N. lat. (near Savannah, GA) south 

to 27°51′ N. lat. for the Southeast 

Atlantic gillnet fishery, and from 32°00 

N. lat. south to 26°46.50′ N. lat. (near 

West Palm Beach, FL) for the 

Southeastern U.S. Atlantic shark gillnet 

fishery, and extending from 80°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°00′ N. lat. (near 

New Smyrna Beach, FL) from November 

15 through April 15 and south of 29°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 § 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°00′ N. lat. from 

November 15 through April 15 and 

south of 29°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 


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Gillnet Waters, or unless the gear is 

stowed as specified in § 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°51′ N. 

lat. (near Sebastian Inlet, FL) south to 

26°46.50′ N. lat. (near West Palm Beach, 

FL), extending from the shoreline or 

exemption line out to 80°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 

§ 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 MagnusonStevens 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 § 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 

§ 229.32 (b)–(d). The requirements in 

(i)(3)(i)(B) and (i)(3)(ii)(B) of this section 

supercede requirements found at 

§ 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°30′ 70°30′ 

2W ......................... 42°30′ 69°24′ 

3W ......................... 41°48.9′ 69°24′ 

4W ......................... 41°40′ 69°45′ 

5W ......................... 41°40′ 69°57′ 

and along the eastern shoreline of Cape Cod 

to 

6W ......................... 42°04.8′ 70°10′ 

7W ......................... 42°12′ 70°15′ 

8W ......................... 42°12′ 70°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 § 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 


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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°30′ 69°45′ 

2E ......................... 42°30′ 67°27′ 

3E ......................... 42°09′ 67°08.4′ 

4E ......................... 41°00′ 69°05′ 

5E ......................... 41°40′ 69°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 

§ 229.2. 

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 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. 

■ 7. In § 635.69, paragraph (a)(3) is 

revised to read as follows: 

§ 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 § 229.32 of this title. 

* * * * * 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 8. The authority citation for 50 CFR 

part 648 continues to read as follows: 

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

■ 9. In § 648.264, paragraph (a)(6)(i) is 

revised to read as follows: 

§ 648.264 Gear requirements/restrictions. 

(a) * * * 

(6) Additional gear requirements. (i) 

Vessels must comply with the gear 

regulations found at § 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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