51228 Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Rules and Regulations 

(c) * * * 

(344) * * * 

(i) * * * 

(A) * * * 

(2) Rule 101, ‘‘Title,’’ and Rule 102, 

‘‘Definition of Terms,’’ originally 

adopted on February 4, 1977 and 

amended on May 17, 2005. 

(3) Rule 106, ‘‘Increments of 

Progress,’’ Rule 210, ‘‘Applications,’’

Rule 212, ‘‘Standards for Approving 

Permits,’’ and Rule 218, ‘‘Stack 

Monitoring,’’ originally adopted on 

January 9, 1976 and amended on May 

17, 2005. 

(4) Rule 108, ‘‘Alternative Emission 

Control Plans,’’ Rule 109, 

‘‘Recordkeeping for Volatile Organic 

Compound Emissions,’’ Rule 208, 

‘‘Permit for Open Burning,’’ Rule 220, 

‘‘Exemption—Net Increase in 

Emissions,’’ Rule 221, ‘‘Plans,’’ and Rule 

226, ‘‘Limitations on Potential to Emit,’’

originally adopted on March 2, 1990, 

May 5, 1989, October 8, 1976, November 

4, 1977, January 4, 1985, and March 17, 

1998, respectively, and amended on 

May 17, 2005. 

* * * * * 

[FR Doc. E8–20137 Filed 8–29–08; 8:45 am] 

BILLING CODE 6560–50–P 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Part 302–17 

[FTR Amendment 2008–03; FTR Case 2008–

302; Docket2008–002, Sequence 1] 

RIN 3090–AI48 

Federal Travel Regulation; Relocation 

Income Tax (RIT) Allowance 

TaxTables–2008 Update 

Correction 

In rule document E8–10022 beginning 

on page 25539 in the issue 

ofWednesday, May 7, 2008 make the 

following corrections: 

On page 25542, in Part 302–17, under 

Appendix D to Part 302–17,the tables 

should read as set forth below: 

Appendix D to Part 302–17—

[Corrected] 

PUERTO RICO MARGINAL TAX RATES

BY EARNED INCOME LEVEL—TAX

YEAR2007 

[Use the following table to compute the RIT allowance for Puerto Ricotaxes, as prescribed 

in 302–17.8(e)(4)(i), on taxable reimbursements receivedduring calendar year 2007.] 

Marginal tax 

rate 

For married person living 

with spouse and filing jointly, 

married person not living 

with spouse, single person, 

or head of household 

Percent Over But not over 

7% ................. $2,000 $17,000 

14% + 1,190 17,000 30,000 

25% + 3,010 30,000 50,000 

33% + 8,010 50,000 ......................

Marginal tax 

rate 

For married person living 

with spouse and filing 

separately 

Percent Over But not over 

7% ................. $1,000 $8,500 

14% + $595 .. 8,500 15,000 

25% + 1,505 15,000 25,000 

33% + 4,005 25,000 ......................

Source: Individual Income Tax Return 

2007—Long Form; Commonwealth of Puerto 

Rico, Department of the Treasury, P.O. Box 

9022501, San Juan, PR 00902–2501; http:// 

www.hacienda.gobierno.pr/. 

[FR Doc. Z8–10022 Filed 8–29–08; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 080509647–81084–02] 

RIN 0648–AW84 

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: Through this final rule, the 

National Marine Fisheries Service 

(NMFS) amends the regulations 

implementing the Atlantic Large Whale 

Take Reduction Plan (ALWTRP), to 

delay the effective date of a broad-based 

gear modification and remove one of the 

gear-related definitions required in the 

recent amendment to the ALWTRP. 

Specifically, NMFS will delay the 

broad-based sinking groundline 

requirement for trap/pot fishermen 

along the Atlantic coast for an 

additional six months, from October 5, 

2008, to April 5, 2009. Additionally, 

this final rule will delete the term 

‘‘neutrally buoyant line’’ and its 

associated definition from the ALWTRP 

regulations. 

DATES: This final rule is effective 

October 2, 2008. 

ADDRESSES: Copies of the proposed rule 

and Regulatory Impact Review related to 

this action can be obtained from the 

ALWTRP website listed under the 

Electronic Access portion of this 

document or writing Diane Borggaard, 

NMFS, Northeast Region, 1 Blackburn 

Dr., Gloucester, MA 01930. For 

additional ADDRESSES and web sites for 

document availability see 

SUPPLEMENTARY INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Diane Borggaard, NMFS, Northeast 

Region, 978–281–9300 Ext. 6503; or 

Kristy Long, NMFS, Office of Protected 

Resources, 301–713–2322. 

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/. 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 website, along 

with a guide to the regulations. 

Background 

This final rule implements 

modifications to the October 5, 2007 

amendment to the ALWTRP (72 FR 

57104, October 5, 2007; 73 FR 19171, 

April 9, 2008). Details concerning the 

development and justification of this 

final rule were provided in the preamble 

of the proposed rule (73 FR 32278, June 

6, 2008), and are not repeated here. 

Delay of Broad-based Sinking 

Groundline Requirement for Atlantic 

Trap/Pot Fishermen 

This final rule will provide an 

additional six months (through April 5, 

2009) for trap/pot fishermen along the 

Atlantic coast to comply with the 

AWLTRP’s broad-based sinking 

groundline requirement. Regulated trap/ 

pot fisheries include, but are not limited 

to, American lobster, crab (red, Jonah, 

rock, and blue), hagfish, finfish (black 

sea bass, scup, tautog, cod, haddock, 


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pollock, redfish (ocean perch), and 

white hake), conch/whelk, and shrimp. 

All other ALWTRP amendments will 

remain in effect, including the sinking 

groundline requirement for trap/pot 

fishermen in Cape Cod Bay Restricted 

Area (January 1 - April 15) and all 

AWLTRP-regulated gillnet fisheries. 

Deletion of the Term ‘‘Neutrally 

Buoyant Line’’ and its Associated 

Definition 

Under this final rule, the term 

‘‘neutrally buoyant line’’ and its 

definition will be deleted from the 

ALWTRP regulations, so that only the 

‘‘sinking line’’ term and definition will 

remain. In order to ensure clarity, the 

term will be removed for both buoy line 

and groundline requirements and for 

both gillnet and trap/pot fisheries. 

Accordingly, the ‘‘sinking line’’

definition will be modified to eliminate 

reference to ‘‘see also neutrally buoyant 

line.’’

Comments on the Notice of Proposed 

Rulemaking and Responses 

NMFS issued a proposed rule on June 

6, 2008 (73 FR 32278) with a 30–day 

comment period through July 7, 2008. 

NMFS received approximately 251 

letters on the proposed rule via letter, 

fax, or email. Additionally, NMFS 

received approximately 2,950 form 

letters and/or signatures on the 

proposed rule. Of the 2,950 form letters, 

2,840 copies were received via 

www.regulations.gov, 50 copies were a 

second type of form letter, and 60 copies 

were received from a third type of form 

letter. All comments were reviewed by 

NMFS and included issues regarding 

the proposed delay, NMFS’ mandates, 

and the proposed removal of the term 

‘‘neutrally buoyant line’’ and its 

associated definition from ALWTRP 

regulations. Comments outside the 

scope of the proposed action are not 

responded to here. However, many of 

these comments (e.g., regarding 

problems with the use of sinking 

groundline, ship strike mitigation) were 

addressed in the responses to comments 

on the recent ALWTRP final rule (72 FR 

57104, October 5, 2007) and Final 

Environmental Impact Statement (FEIS) 

(NMFS 2007) and are not repeated here. 

Comments related to reducing risk 

associated with vertical line are also 

outside the scope of this action but will 

be provided to the Atlantic Large Whale 

Take Reduction Team (ALWTRT) for 

consideration at its next meeting. The 

comments related to the proposed rule 

are summarized below, and NMFS’

response follows each comment. 

Comments on the Delay 

Comment 1: Many commenters 

expressed their support for the proposed 

six month extension (through April 5, 

2009). Commenters noted that the 

current implementation deadline falls 

during the most profitable fishing 

period, and requiring lobstermen to 

remove and reconfigure gear at this time 

would cause a substantial loss in 

financial revenue (to them and their 

surrounding communities), whereas an 

extension would allow them to fish 

uninterrupted and maximize 

profitability during the height of the 

lobster harvesting season. Commenters 

stated that converting to sinking line is 

time-consuming and expensive, 

especially during prime fishing months 

and believed that gear should be 

converted gradually during the winter 

off-season, which would provide a more 

sensible, and physically and financially 

easier transition. Other commenters felt 

that the weather is too unpredictable 

during October and the wind and sea 

conditions would be too dangerous [for 

gear conversion]. One commenter stated 

that fishermen simply need more time 

to comply and a delay in 

implementation would allow them to 

better prepare for the final rule. 

Response: NMFS agrees that the six 

month extension will facilitate the 

conversion to sinking groundline in 

trap/pot fisheries along the Atlantic. As 

stated in the Regulatory Impact Review 

(RIR; May 2008) for this action, 

providing additional time for gear 

conversion would reduce the possibility 

of a disruption in fishing effort during 

the summer and early fall of 2008, 

which would have an adverse impact on 

the catch and revenues of affected 

fishermen. Fishermen would be able to 

bring their gear into compliance during 

the winter, when fishing activity slows, 

fewer traps are in the water, and 

fishermen typically focus on gear repair 

and replacement. 

Comment 2: Many commenters 

expressed their support for the proposed 

six month extension (through April 5, 

2009) so that fishermen could adjust to 

current economic conditions (i.e., 

higher fuel and bait prices, lower 

purchase prices for lobster) and gain 

more financial resources to offset the 

difficulties many are having with 

purchasing sinking line. Several 

commenters also believed that the 

proposed delay is economically 

imperative for local communities. One 

commenter noted that the proposed 

action would allow lobstermen to 

spread out the cost of purchasing 

sinking line. Another commenter stated 

that for those that fish year-round, the 

extension will allot time to comply 

without missing fishing days. Other 

commenters expressed hope that the 

Federal government will come forth to 

assist with the expenses endured by 

each lobsterman affected by the sinking 

line requirement. 

Response: NMFS agrees that the delay 

will assist all Atlantic trap/pot 

fishermen in fully converting to sinking 

groundline. Again, as noted in the RIR, 

trap/pot fishermen would be able to 

convert their gear over an extended 

period of time to avoid any potential 

spike in demand for sinking line, which 

if it materialized, might temporarily 

outstrip the capacity of cordage 

manufacturers, drive up prices, and 

impair fishermen’s ability to comply. 

This action would also reduce 

compliance costs for those who have yet 

to complete the conversion, since more 

line could be converted when it 

ordinarily would need to be replaced, 

avoiding the costs associated with 

accelerating gear replacement. 

Comment 3: Many commenters 

expressed their support for the proposed 

six month extension (through April 5, 

2009) as lobstermen would be able to 

research and experiment with different 

types of sinking line to determine what 

works best (i.e., on hard bottoms) as 

well as learn how to effectively fish 

with sinking line to reduce gear loss and 

safety concerns. One commenter 

believed that the proposed delay would 

demonstrate that NMFS understands the 

practical challenges of the large-scale 

transition to sinking groundlines. 

Response: NMFS appreciates 

fishermen’s efforts to continue to phasein sinking groudline during the delay. 

NMFS recognizes that the conversion 

from floating to sinking groundline 

involves a major reconfiguration of gear 

involving time and resources. 

Comment 4: Several commenters 

noted that providing a 6–month delay in 

implementation would allow 

lobstermen to avoid the necessity to 

switch to fishing singles, which would 

increase the number of vertical lines in 

the water, and hence, pose a greater risk 

to whales. 

Response: NMFS agrees that the delay 

will assist all Atlantic trap/pot 

fishermen in fully converting to sinking 

groundline. NMFS also recognizes 

vertical lines as an entanglement risk to 

large whales and will be continuing to 

discuss this subject with the ALWTRT. 

Comment 5: One commenter 

supported the proposed delay in 

implementation until April 2009, for 

Federal waters only. 

Response: Based on NMFS’

monitoring of both the availability of 

sinking groundline and the progress of 


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the fishing industry in converting to 

sinking groundline, NMFS believes an 

additional six months (to April 5, 2009) 

for trap/pot fishermen along the Atlantic 

coast to comply with this requirement is 

warranted. 

Comment 6: One commenter noted 

that the original 12–month 

implementation period was not enough 

time to convert all floating groundlines 

as lobstermen typically only replace a 

portion of their groundline annually. 

The commenter also stated that there 

was a short supply for industry 

members who wished to purchase 

compliant gear before the 2008 season 

and a lack of assurance the line 

purchased would be compliant under 

the regulations. Another commenter 

noted that the marine supplier he 

coordinates with ran out of steel liner 

sinking line in April 2008. Several other 

commenters questioned the availability 

of sinking line and believed a 6–month 

delay in implementation would enable 

rope producers time to increase 

production and meet industry demands. 

Some of these commenters believed 

there would be difficulties with 

enforcement of the regulation if not 

enough sinking line had been produced 

for fishermen to complete the required 

conversion. 

Response: NMFS recognizes that the 

conversion from floating to sinking 

groundline would expedite a 

fisherman’s routine schedule of line 

replacement. Based on reasons noted in 

the proposed rule (73 FR 32278, June 6, 

2008) and RIR (May 2008), and 

comments received, NMFS believes an 

additional six months for Atlantic trap/ 

pot fishermen to convert to sinking 

groundline is warranted. NMFS believes 

that an eighteen month time period (i.e., 

from the time the final rule was 

finalized on October 5, 2007, to the new 

effective date of April 5, 2009) is 

sufficient time for the Atlantic trap/pot 

fishery to make the conversion. 

Manufacturers have indicated to NMFS 

that an adequate supply of cordage 

would be available if fishermen 

continue to convert throughout this time 

period. 

Comment 7: Many commenters 

supported the proposed 6–month delay 

in implementation as NMFS would have 

more time to continue working with 

fishermen to address ongoing issues of 

implementation and enforcement. One 

commenter felt that the proposed 

extension would allow industry to 

suggest another rule that will cause less 

financial hardship to fishermen. Other 

commenters noted that the proposed 

rule will give the Maine Lobstermen’s 

Association (MLA) and other groups 

more time to work out a ‘‘conservation 

equivalency agreement’’ to meet the 

goals of the ALWTRT while ensuring 

Maine lobstermen the ability to fish. 

One commenter maintained that the 

proposed delay would allow NMFS and 

the ALWTRT time to consider the State 

of Maine’s proposed sink rope 

exemption for Downeast Maine. A 

different commenter noted that NMFS, 

MLA, and Maine Department of Marine 

Resources (DMR) have been actively 

engaged in discussions about 

modifications to the regulations that 

would allow floating groundline to be 

used in some additional areas where 

there is low risk to whales in return for 

a reduction in endlines; the commenter 

encouraged NMFS to continue to work 

with MLA and Maine DMR and use the 

additional 6 months to craft a 

compromise on this issue. 

Response: NMFS believes an 

additional six months for Atlantic trap/ 

pot fishermen to convert to sinking 

groundline is appropriate to ensure 

implementation of this gear 

modification. However, NMFS does not 

agree that there is an enforcement 

concern regarding sinking groundline. 

The recent ALWTRP final rule (72 FR 

57104, October 5, 2007) included 

modifications to the sinking groundline 

definition, as well as prohibitions on 

attaching buoy, toggles or other 

floatation devices, to assist enforcement 

of these provisions. Additionally, 

although it is not NOAA Office of Law 

Enforcement policy to share 

enforcement procedures with the 

public, NOAA is prepared to enforce 

this requirement. NOAA Office of Law 

Enforcement relies on its partnership 

with the U.S. Coast Guard (USCG) and 

state agencies to monitor compliance 

with the ALWTRP. NMFS has been in 

discussions with the Maine DMR on 

ALWTRP enforcement efforts. 

Although the ALWTRT has been 

discussing possible proposals related to 

exemptions to the sinking groundline 

requirement (in exchange for significant 

reductions in vertical lines) in specific 

areas these have not yet received even 

conceptual support by the ALWTRT. If 

conceptual support were achieved, 

significant work would remain to 

develop and agree to details of such a 

proposal. Any associated modification 

to the ALWTRP, pending approval, 

would be conducted through a separate 

rulemaking action. Thus, those 

discussions occurring with the 

ALWTRT are on a separate track and are 

independent of this action. 

Comment 8: Several commenters 

requested the delay be extended to a 

date later than April 5, 2009. Many of 

these commenters noted that they fish 

offshore trawls year-round, and the 

current proposed delay in 

implementation would not provide the 

necessary time for their gear to be 

converted. Commenters felt that the 

proposed April 5, 2009, deadline was 

chosen without consideration for the 

offshore fleet and the time necessary to 

convert offshore gear, leaving the 

proposed rule to serve only one segment 

of the industry. They believed that a 

delay until at least December 31, 2009, 

is necessary for offshore gear due to: (1) 

the cost of converting offshore gear and 

the fact that due to current economic 

conditions fishermen do not have extra 

money to convert their gear; (2) the time 

it takes to reconfigure offshore gear 

(vessels are able to transport no more 

than two trawls out to the fishing 

grounds at any one time); (3) the 

unnecessary safety risks that will be 

posed to offshore crews if they need to 

take out more than one trawl at a time 

during the winter months; (4) the large 

amount of heavy-duty line required by 

the offshore fleet, and if that supply will 

be available; and (5) the necessity of a 

comprehensive rope recycling program. 

Many commenters also noted the 

necessity for Federal funding or the 

establishment of a financial program to 

assist them in complying with the 

sinking groundline regulation. One 

commenter felt that if financial 

assistance could not be offered, then the 

delay should be extended to December 

31, 2010. 

Response: NMFS did consider the 

Atlantic trap/pot fishery in its entirety 

when considering whether a delay in 

the conversion to sinking groundline 

was warranted. Additionally, NMFS 

considered other factors as noted in the 

proposed rule and RIR, such as impacts 

to large whales, when considering the 

appropriate delay period. NMFS 

believes that the additional six months, 

which would result in a total of 18 

months (since the October 5, 2007, final 

rule) is an adequate time period to 

convert to sinking groundline for the 

offshore fleet taking into consideration 

the points noted above. For example, 

transporting two trawls a trip over an 18 

month period should be adequate time 

to convert. NMFS has been in touch 

with gear manufacturers and suppliers 

who note that there should be a supply 

of sinking line available if fishermen 

continue to phase-in sinking groundline 

during the delay. Additionally, NMFS 

encourages fishermen to contact the 

NMFS Gear Research Team (contact 

information found at http:// 

www.nero.noaa.gov/whaletrp/plan/ 

gear/index.html) for information or 

contacts related to recycling line. 

As noted in the preambles to the 

proposed and final rule, NMFS believes 


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the six month delay through April 5, 

2009, is appropriate and that any further 

broad-based delay could increase risk 

based on the seasonal abundance and 

distribution of large whales along the 

east coast. Specifically, the highest 

frequency of right whales in the western 

Gulf of Maine is April through May 

whereby at least half of the known 

population may be seen in this area 

during that time. Similarly, the highest 

frequency of right whales generally 

occurs in the Northern Edge of Georges 

Bank during June and July (Pace RM III, 

Merrick RL. 2008. Northwest Atlantic 

Ocean Habitats Important to the 

Conservation of North Atlantic Right 

Whales (Eubalaena glacialis). Therefore, 

NMFS believes that any delay beyond 

April 5, 2009 would create an increased 

risk to right whales in the Northeast. 

Comment 9: Many commenters stated 

confusion and concern as to how to 

identify sinking line that complies with 

NMFS’ 1.03 or greater specific gravity 

standard. They questioned how 

fishermen can be certain the product 

they are buying as ‘‘sink rope’’ meets the 

standard set by NMFS. One commenter 

stated that many lobstermen were 

unable to change their gear prior to the 

start of the 2007 fishing year because 

they did not know what kinds of rope 

would be deemed sufficient to meet 

AWLTRP final rule requirements. Other 

commenters were worried that money 

already spent on available sinking line 

may have been wasted, as no one will 

verify if the line they purchased is 

compliant or not. Commenters noted 

that the rope industry does not clearly 

label its line in a manner to indicate the 

specific gravity of the line and/or if it is 

compliant with ALWTRP regulations. 

Some commenters requested NMFS to 

provide a clear directive indicating 

which line(s) comply with the rule; one 

commenter believed that providing a 

longer implementation time will enable 

the Agency to develop clearer standards 

to determine whether rope will or will 

not meet the regulation requirements. A 

different commenter requested a 

government proven line that has been 

approved for the specific buoyancy 

levels. 

Response: NMFS believes that the 

elimination of the ‘‘neutrally buoyant 

line’’ term and definition in the 

ALWTRP regulations will facilitate 

fishermen understanding the ‘‘sinking’’

groundline regulations. For example, 

industry has wondered whether NMFS 

will permit the use of ‘‘low profile’’

groundline in certain areas (the term 

‘‘low profile’’ refers to line that does not 

sink, but would remain in the water 

column relatively close to the sea floor). 

Elimination of references to ‘‘neutrally 

buoyant line’’ from the regulations 

would make clear to fishermen that 

‘‘sinking’’ groundline is required. In 

response to requests from the fishing 

industry and line manufacturers for a 

clearer definition of sinking line, NMFS 

developed criteria for establishing a 

density standard for sinking line and 

used this criteria to develop the sinking 

line definition. In addition, NMFS 

finalized a procedure for assessing the 

specific gravity of line, which NMFS 

will use to determine whether a 

manufactured line meets the accepted 

density standard. The criteria are 

available on NMFS’ website at http:// 

www.nero.noaa.gov/nero/hotnews/ 

whalesfr/. These criteria and procedures 

were meant to facilitate the manufacture 

of sinking line. Manufacturers have 

assured NMFS that they can produce 

rope that meets the definition of sinking 

line as mandated by the ALWTRP. 

Fishermen are required to ensure the 

line they purchase for their groundline 

is sinking line, and NMFS encourages 

fishermen to talk with gear suppliers 

and/or manufacturers about the 

available options for line that meets the 

sinking line requirements. However, 

NMFS does not expect fishermen to 

conduct their own specific gravity 

analyses. Additionally, NMFS does not 

believe special markings are needed for 

sinking line as NMFS is confident that 

fishermen have the ability to easily and 

confidently purchase sinking line that 

meets the requirements of the ALWTRP. 

Comment 10: One commenter stated 

that lobstermen have not received any 

information or assistance as to which 

lines will perform best for their local 

conditions and they are hesitant to 

invest in a line that may not work. 

Response: NMFS has funded research 

with the states, manufacturers, and 

industry to address this issue. NMFS’

Gear Research Team has worked with 

numerous fishermen along the Atlantic 

coast over the years to test sinking line, 

and find a line that operationally works 

in their area. Thus, NMFS is aware of 

many fishermen who use sinking line 

and encourages industry members to 

contact the NMFS Gear Research Team 

(contact information found at http:// 

www.nero.noaa.gov/whaletrp/plan/ 

gear/index.html) for contact information 

of those who have used or tested sinking 

line in their area to discuss these issues 

further. 

Comment 11: One commenter noted 

that at this time, Rhode Island 

lobstermen have not received any 

financial assistance to initiate a rope 

buyback program. The commenter 

stated that the state has two dozen 

vessels using floating line nearshore due 

to rocky bottom, and that the State is 

home to the largest offshore lobster fleet, 

all of which use floating line. Although 

many fishermen have started to convert, 

others say they simply can not afford to 

buy the required line. 

Response: NMFS believes that the 

delay will provide more time to enable 

those fishermen who have not had 

access to these buyback programs to 

find the resources to convert to sinking 

groundline. 

Comment 12: One commenter felt that 

current rope buyback programs were 

occurring at the wrong times of the year, 

requiring fishermen to bring in their 

traps during peak fishing periods in 

order to make an exchange. The 

commenter suggested the months of 

January and February for a rope buyback 

program, as that is when the gear is out 

of the water. 

Response: The buyback program in 

Maine (where this commenter 

originates) is administered as part of a 

NOAA Grant. Therefore, we will 

forward the comment to the grant 

recipient for consideration. 

Comment 13: One commenter 

provided several remarks on the rope 

manufacturing industry. The commenter 

noted a rapid increase in the demand for 

sinking line from the Northeast U.S., 

roughly concurrent with the 

implementation of various rules and 

buyback programs. Although, to date, 

customer needs have been satisfied 

(though typical delivery times have 

been longer than normal) the 

commenter stated that significant 

challenges do exist to meet the current 

demand for sinking line. The 

commenter maintained that 

manufacturers are unable to control the 

sourcing of polyester used in 

constructing sinking line, as the 

material is used in other industries and 

is not always available at a reasonable 

price. The commenter also stated that 

rope manufacturers serve a variety of 

industries and the level of demand from 

markets outside fisheries may impact 

the ability of manufacturers to supply 

product within a reasonable time frame, 

especially if those outside industries are 

seasonal. The commenter believed that 

a sudden surge in demand would result 

in a temporary shortage and higher 

rices, and any price change would work 

quickly through the supply chain, 

potentially impacting individuals in a 

manner that would cause difficulties in 

complying with sinking groundline 

regulations. 

Response: NMFS appreciates the 

comment. As noted in the RIR, those 

fishermen who have not completed the 

conversion to sinking groundline are 

being provided an additional six 

months, which would help to smooth 


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any potential spike in demand for 

sinking line that might temporarily 

outstrip the capacity of cordage 

manufacturers, drive up prices, and 

impair fishermen’s ability to comply. 

Therefore, for this reason and others 

noted in the proposed rule and RIR, 

NMFS believes that the delay will allow 

industry enough time to fully convert 

and enable manufacturer’s to meet the 

demand for sinking line during this time 

period. NMFS also encourages 

fishermen to continue the conversion to 

sinking line as soon as possible to avoid 

possible problems described by the 

commenter. 

Comment 14: One commenter noted 

that a variety of products are required to 

best serve the industry as differing 

fishing environments and techniques 

require different designs of rope 

product. The commenter believed that 

since the fishing industry is now at a 

stage where a significant amount of 

compliant gear is being fished and a 

greater amount of feedback is expected 

over the next several months, 

manufacturers can use this information 

and make the necessary modifications to 

their product. The commenter felt that 

if a particular product is not available, 

it is conceivable that fishermen will be 

forced to use a product not well-suited 

for their needs in order to comply. 

Using such product could result in a 

significantly shortened product lifespan, and as a result, increased costs 

and/or reduce a fisherman’s ability to 

maximize landings. 

Response: NMFS acknowledges that 

the type of sinking line a fishermen may 

choose is dependent on many factors 

(e.g., bottom type, tide). Additionally, 

NMFS understands that many fishermen 

have tested various types of sinking 

groundline in various environments to 

determine the best line for their 

operation. NMFS encourages fishermen 

to continue the conversion to sinking 

line as soon as possible to help ensure 

availability of their desired product to 

avoid possible problems described by 

the commenter. 

Comment 15: Many commenters 

opposed the proposed six month 

extension (through April 5, 2009), 

stating that the rationale NMFS used to 

justify the proposed six-month delay in 

implementation was inadequate, 

disingenuous, unjustified, needed to be 

demonstrated factually, and is contrary 

to the protection needs of the North 

Atlantic right whale. Some commenters 

found the proposed delay to be 

unwarranted and risky. Commenters 

believed NMFS had already taken too 

long to adopt final regulations (a total of 

5 years since the previous plan was 

found to be inadequate) and at least 18 

right whale entanglements have been 

observed during those 5 years 

(commenters stated that at least 5–

percent of the right whale population 

has been entangled in fishing gear in the 

time it took to develop the new rules). 

Commenters noted that NMFS has 

stated ‘‘the loss of even a single 

individual [right whale] may contribute 

to the extinction of the species’’, and 

hence, NMFS cannot casually delay the 

implementation of a measure necessary 

to avoid this result. Another commenter 

noted that past analyses (i.e., in the FEIS 

[NMFS 2007]) show that the sinking 

groundline requirement should be 

implemented by October 5, 2008, and it 

is inconsistent for NMFS to suggest 

further delay. 

Response: Due to the magnitude of the 

time and resources needed by fishermen 

to change their gear to sinking and/or 

neutrally buoyant groundline required 

by the recent ALWTRP amendment, 

NMFS provided a one year phase-in 

period. However, since publication of 

the final rule, NMFS has monitored both 

the availability of sinking groundline 

and the progress of the fishing industry 

in converting to sinking groundline and 

determined that both the American 

lobster fishery and other trap/pot 

fisheries require additional time to 

convert to sinking groundline. NMFS 

believes fishermen will be continually 

converting their gear before the effective 

date, which will result in progressive 

risk-reduction to large whales. 

Additionally, all other ALWTRP 

requirements would remain in effect 

during this period. NMFS believes that 

this action will result in minimal risk to 

large whales (see responses to 

Comments 16 and 18 for additional 

information regarding the rationale). 

Comment 16: Many commenters 

disagreed with NMFS and felt that the 

proposed delay in implementation 

would result in further adverse impacts 

to whales, especially right whales. One 

commenter felt that the assertions 

offered for why the delay will not have 

an impact on whales were wrong and 

the facts clearly state that whales are 

indeed put at significant risk by the 

delay. Commenters questioned how 

NMFS could substantiate any delay 

when according to the Maine DMR, at 

least 26 Dynamic Area Management 

(DAM) zones had been declared 

between October-April off the coast of 

Maine and New Hampshire since 2002. 

Commenters noted that managers will 

be left with fewer options to protect 

whales with the loss of the DAM and 

the Seasonal Area Management (SAM) 

Programs in April and October 2008, 

respectively. Commenters continued to 

state that NMFS justified the 

elimination of these programs in the 

final rule because they would be 

replaced by the broad-based sinking 

groundline requirement. One 

commenter stated that NMFS is 

allowing risk reduction components of 

the ALWTRP to expire before other 

measures are in place to substitute for 

their loss. Another commenter pointed 

to the lack of Federal funding for 

disentanglement operations beginning 

in 2009. Without the means of either 

reducing the concentration of gear in the 

given area (i.e., a continuation of the 

SAM/DAM programs) or at least 

attempting to disentangle whales that 

potentially become entangled, 

commenters believed populations of 

North Atlantic large whale species 

would be placed at greater risk due to 

the delay. One commenter stated that 

neither this proposed rule nor its RIR 

elaborated on what the minimal impacts 

[to whales] are expected to be. 

Response: NMFS has made a 

qualitative assessment that the impacts 

to large whales from the delay would be 

minimal based on the various reasons 

noted in the proposed rule and RIR. In 

summary, this is based on what NMFS 

knows about gear and whale 

distribution, coupled with the 

conversion to sinking groundline which 

has already occurred due to buyback 

programs and expansive special right 

whale management areas. It is important 

to reiterate that the DAM program 

expired on April 5, 2008, when most of 

the broad-based gear modifications were 

effective. NMFS believes that the 

numerous DAM zones that have been 

established in the Gulf of Maine since 

the program was implemented in 2002 

have facilitated the conversion of lobster 

trap/pot gear to sinking groundline in 

these areas. NMFS also believes that the 

SAM program, the associated areas of 

which expanded on April 5, 2008, has 

similarly facilitated the conversion of 

lobster trap/pot gear to sinking 

groundline in these areas. However, 

NMFS acknowledges there has been 

confusion on the part of some industry, 

especially is areas that were not 

impacted by the DAM and SAM 

programs, as to who is impacted by the 

new regulations (e.g., on April 5, 2008, 

other trap/pot fisheries were subject to 

the ALWTRP including the SAM 

requirements) and what type of line is 

required for groundline (see Comment 9 

for an example of this confusion). NMFS 

is not eliminating the broad-based 

sinking groundline requirement that 

was required through the October 5, 

2007, final rule but is merely delaying 

the effective date of this by six months 

and is deleting the ‘‘neutrally buoyant’’


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line terminology to assist with 

compliance with these regulations. The 

majority of the conservation measures 

included in the October amendment to 

the ALWTRP are already in place, and 

NMFS believes that those fishermen 

who have not already converted will 

continue to convert throughout the 

delay. 

Regarding the comment on 

disentanglement, NMFS recognizes the 

critical importance of removing fishing 

gear from entangled whales but is faced 

with decreasing budgets and 

implementing other pressing priorities. 

NMFS is seeking more cost-effective 

options to disentangle whales and to 

prevent entanglements from occurring. 

Comment 17: Many commenters felt 

that the majority of conservation 

measures in the ALWTRP, which NMFS 

states will already be in place during the 

6–month extension, are inadequate and 

insufficient to protect whales. 

Commenters stated that whales will be 

vulnerable to entanglement in trap/pot 

gear during the delay as the only 

protective measure in place would be 

weak links, which NMFS has already 

determined are inadequate for risk 

reduction on their own, and no 

alternative protections are currently 

proposed. Commenters noted the 

entanglement of right whale #3107, 

which died as result of an entanglement 

in fishing gear with an unbroken 600lb 

weak link. One commenter believed it is 

misleading to state that the majority of 

ALWTRP conservation measures are 

already in place. Another commenter 

stated that any reduction in weak link 

strength or additional requirements of 

gear anchoring systems should not be 

considered significantly protective. 

Several commenters felt that the 

groundline requirement was the only 

ALWTRP requirement that would 

significantly reduce the line in the water 

column and therefore the only measure 

with a probability of further reducing 

entanglement risks. 

Response: NMFS disagrees and 

believes that large whales benefitted and 

continue to benefit from the numerous 

modifications to the ALWTRP that were 

effective April 5, 2008, as well as those 

that were previously in effect (e.g., 

restrictions in Cape Cod Bay and Great 

South Channel Restricted Areas). These 

modifications included but were not 

limited to expansion of the ALWTRP 

requirements in time and space, as well 

as numerous gear modifications. NMFS 

also 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. NMFS does not have 

evidence to suggest that weak links, 

when designed and used properly, are 

ineffective (i.e., NMFS does not have a 

documented case where a weak link 

failed to work for the type of 

entanglement it was designed to 

address). The rationale for various 

ALWTRP gear modifications, such as 

weak link strengths and gear anchoring 

systems, has been included in previous 

rulemaking documents. However, the 

comment related to this is outside the 

scope of this action and NMFS 

encourages the commenter to contact 

the NMFS Gear Research Team (contact 

information found at http:// 

www.nero.noaa.gov/whaletrp/plan/ 

gear/index.html) for further information. 

Comment 18: Some commenters 

contested NMFS’ statement that 

‘‘special right whale management areas 

have already converted to sinking 

groundline’’. One commenter stated that 

the special areas in this plan were 

already in place in a previous plan 

which was found to be inadequate, and 

the areas provide little assurance of 

protection beyond that which was 

provided in the previous plan. Another 

commenter noted that the report cited 

by NMFS (Pace and Merrick 2008) 

indicated that there are important areas 

for whales, considered potential high 

use areas (i.e., Jordan Basin in the 

spring) that may not be protected under 

the ALWTRP. Commenters again noted 

that the DAM program was eliminated 

in October 2007 in lieu of the October 

5, 2008, sinking groundline measures 

inside and outside SAM areas. One 

commenter noted that until the sinking 

groundline requirement comes into 

effect, the amount of time and area in 

which sinking groundlines would be 

required would be less than that which 

was required under the October 2007 

revised regulations. The commenter 

stated that the ALWTRP is intended for 

other large whales besides right whales, 

and many of these other endangered 

species do not stay within the ‘‘special 

management areas’’. These other species 

would get little benefit from gear 

conversion that is confined solely to 

these areas, whereas they would benefit 

from imposing regulations throughout 

the Northeast in October 2008. The 

commenter also noted that it is only 

fishermen who ‘‘typically operate’’ in 

these areas that may have converted 

their gear and other fishermen have the 

option of not setting their gear until 

these seasonal restrictions expire or to 

fish just outside the restricted areas; 

with the proposed delay, when the SAM 

program expires, the commenter 

believed these fishermen (who do not 

‘‘typically operate’’ in the ‘‘special 

management areas’’) may fish with 

unmodified gear in 2007–2008. 

Response: The ALWTRP, and the 

associated right whale management 

areas, are not considered inadequate. 

Rather, NMFS determined that a broadbased management approach focusing 

on the times and areas where large 

whales (i.e., not just right whales) are 

likely to occur would be more protective 

than the DAM and SAM programs. 

NMFS believes that the combination of 

expansive special right whale 

management areas, in addition to 

buyback programs, have facilitated the 

conversion to sinking groundline. 

One commenter stated that the Pace 

and Merrick (2008) document indicated 

that Jordan Basin is important to right 

whales in the spring, however, the 

document notes that this area is 

important August-October. Regardless, 

as NMFS has stated, the DAM program 

has facilitated conversion to sinking 

groundline. The DAM program was 

eliminated on April 5, 2008, and not 

October 2007 as indicated by one 

commenter. Additionally, the SAM 

areas were expanded in time and space 

in April 5, 2008, where sinking 

groundline was required for all affected 

gillnet and trap/pot fishermen 

(including those newly covered by the 

ALWTRP). The ALWTRP regulations are 

presently in effect in time and areas 

where right, humpback, and fin large 

whales are known to occur. Based on 

the expansive nature of the right whale 

restricted areas in the Gulf of Maine, 

these areas (and the associated sinking 

groundline restrictions) include many 

areas where humpback and fin whales 

have also been sighted. Additionally, 

once fishermen have invested 

significant time and costs into 

converting to sinking groundline, they 

are unlikely to re-invest additional 

resources to reconvert for a short six 

month window. 

Comment 19: Many commenters 

disagreed with NMFS’ assertion that 

‘‘most trap/pot gear is out of the water 

during a portion of the time period 

before the broad-based sinking 

groundline requirements go into effect’’

[in April 2009]. One commenter felt 

there was no information provided to 

justify this statement and was not aware 

of any analyses evaluating when, where, 

or how much trap/pot gear is removed 

from the water between October and 

April, nor an evaluation as to whether 

the gear that is not removed is located 

in areas where right whales are likely to 

encounter it. One commenter felt that a 

reduction in fishing effort is not a viable 

reason to justify a delay in 

implementation, especially for right 

whales. Other commenters noted that 


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fixed gear fisheries operate year-round 

in all areas where there are seasonally 

abundant, large concentrations of right 

whales, in other areas along the East 

coast, including New England. One 

commenter noted that right whales are 

typically seen off North Carolina in 

March where sea bass and crab pot 

fisheries operate in North Carolina and 

South Carolina waters at this time. 

Commenters stated that whales, 

especially right whales, who roam out of 

their expected wintering grounds will 

have no protection. Another commenter 

noted that October, November, and 

December represent busy fishing 

months for Maine lobstermen and that 

the density of vertical lines and 

groundlines in the water at this time 

would put whales at risk. 

Response: The statement that most 

Atlantic trap/pot gear is out of the water 

during a portion of the time period 

before the broad-based sinking 

groundline requirements go into effect 

(i.e., April 5, 2009) is based on historic 

fishing patterns along the east coast. 

When considering the Atlantic trap/pot 

fishery in its entirety, the majority of 

trap/pot effort occurs in the Northeast. 

However, the delay is occurring before 

the primary seasonal distribution of 

large whales in this area (although Cape 

Cod Bay is a special area for right 

whales, this area has already converted 

to sinking groundline during the critical 

periods) and buyback programs and 

special right whale management areas 

have facilitated the conversion to 

sinking groundline. When focusing on 

Maine alone, there is less concern that 

fishing effort may be high during some 

months of the delay given the 

consideration of whale distribution 

coupled with the conversion to sinking 

groundline that has occurred due to 

buyback programs and expansive DAM 

zones in the area. A NMFS analysis also 

indicates that estimated amounts of 

groundline and vertical line in Maine 

waters are at their lowest points during 

a number of months during the delay. 

Additionally, 71% of Maine state waters 

are exempt from the ALWTRP because 

these areas represent low entanglement 

risk to large whales. Regarding the mid 

and south Atlantic, the primary seasonal 

distribution of large whales occurs 

during the period of the delay, however, 

there is less trap/pot gear in the water 

(i.e., there is less density compared to 

the northeast) and a NMFS buyback 

program in this area has facilitated the 

conversion to sinking groundline. 

Comment 20: Many commenters 

disagreed with NMFS and felt that the 

seasonal distribution of large whales in 

the Northeast does occur during the 

proposed extension period. Another 

commenter asked NMFS to clarify this 

statement. One commenter felt that it is 

inaccurate for NMFS to assert that risk 

is low because the primary seasonal 

component of large whales occurs after 

April 2009, and that such an assertion 

is based on insufficient analyses of 

available data. The commenter believed 

NMFS failed to consider data indicating 

that the risk to endangered large whales 

occurs in areas larger than typically 

depicted by the Agency and that the 

Agency did not consider the best 

scientific data when determining the 

potential for risk. Commenters noted 

that many species of whales remain in 

U.S. North Atlantic waters during some 

or all of the proposed extension period. 

Many commenters maintained that the 

proposed delay would include all trap/ 

pot fisheries along the east coast at a 

time when humpback and fin whales 

are known to forage off the mid-Atlantic 

and during the migratory times for right 

whales and others traveling along the 

east coast. One commenter indicated 

that the earliest month which humpback 

whales are likely to be seasonally absent 

from the Gulf of Maine is January, not 

October and that individuals of all age 

classes, including late pregnant females 

and those due to conceive, are sighted 

and identified in Gulf of Maine waters 

from October-December. Commenters 

also stated that the location of the 

majority of the North Atlantic right 

whale population during the fall and 

spring months is poorly understood and 

may overlap with whatever fishing 

effort exists. They also pointed to recent 

sightings in the central Gulf of Maine as 

indications that this area is a significant 

overwintering area. Another commenter 

stated that right whales are routinely 

found in Northeast waters during the 

time of the proposed delay and are often 

detected acoustically when no sightings 

have occurred. An additional 

commenter stated that the largest 

concentration of right whales occurs in 

late summer in the Bay of Fundy (after 

the April 5 date) and in spring in Cape 

Cod Bay and the Great South Channel 

(before the April 5 date). Commenters 

stated that aggregations of right whales 

are known to move out of critical habitat 

areas, and right whales ι3314 and ι3346 

became entangled in the northern 

feeding grounds in late fall/early winter, 

which may be indicative of animals 

foraging in areas that would be 

unprotected during the proposed 

amendment period. One commenter 

referenced the RIR that accompanied the 

proposed action, where NMFS stated 

‘‘some right whales can be found year 

round’’. 

Response: Related to the northeast, 

NMFS considered that the delay would 

occur before the primary seasonal 

distribution of large whales (factoring in 

that although Cape Cod Bay is 

seasonally important from January 

through April, sinking groundline is 

already required there during this time 

period). This does not mean that large 

whales will not enter the northeast 

during the delay (i.e., from October 5, 

2008, through April 5, 2009), but rather 

that they have a stronger seasonal 

distribution or presence in the northeast 

after the delay (except Cape Cod Bay as 

noted above). 

The October 2007 ALWTRP 

amendment implemented modifications 

that expanded the temporal and spatial 

distribution of ALWTRP requirements 

by considering right, humpback, and fin 

whale distributions. It is important to 

note that all ALWTRP requirements 

other than the broad-based sinking 

groundline requirement will be in effect 

during the delay (i.e., year-round in the 

northeast and seasonally in the mid and 

south Atlantic). 

NMFS cited the FEIS (NMFS 2007), as 

well as Pace and Merrick (2008), when 

considering the reasons that the delay 

would cause minimal impact to large 

whales. The FEIS (NMFS 2007) does 

include the seasonal distribution of 

right, humpback and fin whales which 

was considered by NMFS when 

developing the current action. 

Additionally, NMFS considered an 

updated NMFS document (i.e., Pace and 

Merrick, 2008) that identified 

concentrations of right whales. NMFS 

does not indicate large whales will be 

absent during the time period of the 

delay, but considered the seasonal 

distribution of large whales in 

conjunction with other factors noted in 

the proposed rule and RIR (e.g., gear 

distribution, buyback, groundline 

requirements that have/are already in 

effect in various management areas) 

when stating that there would be 

minimal risk to large whales and 

proposing a delay. The FEIS (NMFS 

2007) notes that right whales occupy 

Cape Cod Bay from December onwards, 

however, sinking groundline is already 

required in this area from January 15–

April 15. According to Pace and Merrick 

(2008), the Great South Channel is 

seasonally important to right whales 

from April-June which is after the delay; 

this is also supported by the ALWTRP 

regulations in which more restrictive 

management measures (e.g., closures) 

are effective in the Great South Channel 

from April 1 - June 30. 

Comment 21: Many commenters 

questioned NMFS’ use of Pace and 

Merrick (2008) as an appropriate 


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citation to support justifications of 

whale distributions. One commenter 

maintained the publication only used 

systematic survey data for right whales 

from 1970–2005 and did not incorporate 

acoustic data. Commenters also noted 

that the research did not consider the 

distribution of other large whales 

species covered by the ALWTRP, 

including humpback whales for which 

takes also exceed their Potential 

Biological Removal (PBR) level, and that 

data used for analysis needed to be more 

recent than 2005 as numerous DAM 

zones were implemented from 2006–

2008 (before the program expired) 

during months of the proposed delay 

(91% of these DAM actions occurring 

during the proposed delay period). One 

commenter noted that although the Pace 

and Merrick (2008) report was relevant, 

it was undertaken for the purpose of 

evaluating spatial and temporal 

boundaries of critical habitat for right 

whales, not the purpose that NMFS 

attempts to use it for the proposed 

action. The commenter also stated that 

the 2008 report calls into question the 

technical reports by Merrick (2005) and 

Merrick et al. (2001), which NMFS 

relied on heavily in its FEIS (NMFS 

2007). As NMFS cites the FEIS for 

information on distribution in this 

proposed rule, the commenter felt that 

NMFS had failed to properly consider 

caveats provided by its own scientists. 

Response: NMFS believes considering 

Pace and Merrick (2008), coupled with 

information contained in the FEIS 

(NMFS 2007) was appropriate. The Pace 

and Merrick (2008) document provides 

information on right whale presence, 

and provides some indications of the 

spatial and temporal patterns of right 

whales in the Gulf of Maine. Although 

this document was written for a 

different purpose than for this particular 

action, it does provide information 

about right whale presence that is 

relevant. As with any study of 

observational data, this study comes 

with caveats but it does not necessarily 

preclude the document from being 

considered and it includes important 

information about right whale use in the 

Gulf of Maine. NMFS also acknowledges 

that acoustic data is important, but at 

this time the agency uses this detection 

tool to determine presence and not 

relative abundance. 

Comment 22: One commenter thought 

it was unclear how buyback programs 

from Maine to North Carolina could be 

considered a justification for the 

proposed delay. The commenter stated 

that NMFS has not specified the source 

or nature of the data it used to 

determine the amount of gear that has 

been exchanged, nor has NMFS 

explained how the gear already 

exchanged translates into a particular 

degree of risk reduction along the east 

coast such that a delay for unconverted 

gear is warranted and will pose a minor 

effect to large whales. Another 

commenter noted that the fact that a 

large amount of groundline has already 

been replaced demonstrates that 

fishermen have long been aware of the 

pending requirement. An additional 

commenter felt that conversion of 

floating line was not uniform, and as a 

consequence, stated that it could not be 

assumed that a similar proportion of 

gear has been converted in each fishery 

or sub-region. 

Response: Since 2005, NOAA has 

promoted trap/pot gear buyback and 

recycling programs from Maine to North 

Carolina with over $3 million in 

funding appropriated by Congress. This 

has been done with the assistance of 

industry and conservation 

organizations. 

NMFS discussed floating groundline 

buyback programs in Section 7.4.3 of 

the ALWTRP FEIS (NMFS 2007); the 

FEIS was referenced in both the 

proposed rule and RIR. At the time of 

the FEIS’s publication (August 2007), 

two buyback programs had been 

implemented. During the fall of 2004 

and spring of 2005, the International 

Fund for Animal Welfare (IFAW), in 

collaboration with the Massachusetts 

Division of Marine Fisheries (MA DMF) 

and the Massachusetts’s Lobstermen’s 

Association, conducted a gear 

replacement program to assist 

Massachusetts inshore trap/pot 

lobstermen. Approximately 300,000 

pounds (∼2,100 miles) of floating 

groundline was collected and replaced. 

In mid-January 2006, NMFS conducted 

a mid-Atlantic gear buyback and 

recycling program for state and federally 

permitted trap/pot fishermen in the 

states of NJ, DE, MD, VA, and NC, in 

coordination with the National Fish and 

Wildlife Foundation (NFWF). Nearly 

100,000 pounds (∼541 miles) of floating 

groundline was collected. 

NMFS noted in the FEIS (NMFS 2007) 

that the Gulf of Maine Lobster 

Foundation (GOMLF) had received 

funding to administer a floating 

groundline buyback program for state 

and federally permitted lobster trap/pot 

fishermen in the state of Maine. The 

first stage of the ‘‘Bottom Line Project’’

was implemented in May of 2007 and 

approximately 137,590 pounds (∼745 

miles) of floating groundline were 

collected. In FY 08, NOAA made an 

additional $356K available to the 

GOMLF to further their gear buyback 

and recycling program within the State 

of Maine. Since publication of the FEIS 

(August 2007), Phase II of the GOMLF 

‘‘Bottom Line Project’’ has been 

completed (March-May 2008), and 

approximately 452,890 pounds (∼2,450 

miles) of floating groundline was 

collected from four Maine ports. The 

GOMLF recently announced summer 

2008 rope exchange dates and locations: 

August 2008 in Ellsworth, ME and 

September 2008 in Rockland, ME. 

An additional recent groundline 

buyback program targeting state and 

federally permitted New York trap/pot 

fishermen was implemented in February 

2008 on Long Island, New York, by 

NFWF and the New York State 

Department of Environmental 

Conservation. A total of 15,380 pounds 

(∼83 miles) of floating line was collected 

and an additional future line collection 

is being scheduled to make use of 

remaining funds. 

Each agency/group administering the 

buyback program keeps track on the 

information related to the program. 

Specific to NMFS’ mid-Atlantic buyback 

program, NMFS determined the amount 

of line that could fit into a cardboard 

box prior to the collection which 

enabled NMFS to record how much line 

was collected. NMFS therefore estimates 

that, to date, a total of 1,422 trap/pot 

fishermen from ME, MA, NY, NJ, DE, 

MD, VA, and NC have participated in 

buyback programs and approximately 

1,595,755 pounds (∼9,116 miles) of 

floating groundline has been exchanged. 

With buyback programs ongoing (e.g., 

projects in NY and ME), NMFS 

anticipates additional floating 

groundline will be collected in the 

future. Although the buyback programs 

may not be uniformly distributed, the 

use of floating groundlines in different 

fisheries or regions are likewise not 

uniform. Therefore, NMFS believes a 

valuable entanglement risk reduction 

has been provided for large whales in 

the areas where the gear buyback efforts 

have occurred. 

Comment 23: One commenter asked 

why proposals such as a more narrowly 

focused, targeted delay, a limited 

deferral of enforcement, or a ‘‘bye’’ for 

fishermen that can verify that an order 

for sinking line has been submitted, 

were not contemplated. Another 

commenter stated that NMFS could 

choose an alternative that provides for 

flexibility in enforcement while at the 

same time provides the greatest 

protection for whales. The commenter 

suggested NMFS to keep the October 

2008 deadline for all aspects of the 

ALWTRP and then use a ‘‘rebuttal 

presumption’’ that it is feasible and 

appropriate for fishermen to comply. If 

a fisherman is subject to an enforcement 

action, the burden could be placed on 


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that individual to show why it was not 

feasible and/or appropriate for them to 

comply by October 2008. This would 

require the agency to set a cut off date 

by which the affected fisherman would 

have submitted their orders to known 

gear manufacturers. If a fisherman 

without compliant gear is able to 

document that they submitted their 

order before June 6, 2008 (or some other 

date showing a good faith effort by 

fishermen to comply), then that 

fisherman could avoid a penalty. 

Response: NMFS believes that the 

proposals the commenter suggested 

cannot be feasibly enforced or 

implemented. NMFS believes this final 

action is the best option to ensure 

compliance with the broad-based 

sinking groundline requirement with 

minimal risk to large whales. 

Comment 24: One commenter stated 

that if NMFS does move forward with 

the delay, then the Agency should 

encourage fishermen to use that time to 

ensure their gear is 100% compliant 

with the new implementation deadline 

and that there will be no more delays or 

excuses as to why any fishermen have 

failed to comply. The commenter noted 

that some lobstermen have made 

comments in the media that they believe 

the delay will provide an opportunity to 

implement an alternative solution to 

sinking lines in Maine before April 

2009. The commenter maintained that 

even if a Maine working group recently 

convened were to reach an agreement, 

the full ALWTRT would need to be 

consulted and a new rulemaking 

process initiated, and NMFS would not 

be able to finalize rulemaking to 

implement an alternative before April 

2009. The commenter believed that 

NMFS needs to send a clear message to 

lobstermen that they need to take swift 

action to convert their gear even with 

the prospect of an alternative to sinking 

line. 

Response: NMFS will be distributing 

a small entity compliance guide to 

affected fishermen to notify them of the 

new broad-based sinking groundline 

deadline (April 5, 2009), as well as the 

removal of the ‘‘neutrally buoyant line’’

term and definition. NMFS will also 

clarify that the removal of the ‘‘neutrally 

buoyant line’’ term and definition does 

not change what NMFS is requiring 

fishermen to use for their groundline 

(i.e., 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). Although 

the ALWTRT has been discussing 

possible proposals related to 

exemptions to the sinking groundline 

requirement (in exchange for significant 

reductions in vertical lines) in specific 

areas, these have not yet received even 

conceptual support by the ALWTRT or 

NMFS. If conceptual support were 

achieved, significant time would be 

needed to develop and agree to details 

of such a proposal. Any associated 

modification to the ALWTRP, pending 

approval, would be conducted through 

a separate rulemaking action. Thus, 

those discussions occurring with the 

ALWTRT are on a separate track and are 

independent of this action. 

Comment 25: Several commenters 

believed that fishermen have already 

had plenty of time to convert their gear 

within the original 12–month delay in 

implementation, and questioned why 

fishermen did not take action to convert 

their line last winter when their gear 

was out of the water. 

Response: Confusion over the type of 

line the ALWTRP regulations require 

and debate over potential changes to the 

regulations have slowed the commercial 

fishing industry’s progress in converting 

to sinking groundline. For example, 

trap/pot fishermen have inquired about 

the definition of low profile groundline 

(a line that does not sink, but loops 

some distance above the ocean bottom 

lower than floating line), and have 

asked NMFS for clarification on 

whether neutrally buoyant line is the 

same as low profile line. The conversion 

process has also been slowed by 

confusion over which trap/pot fisheries 

are now subject to ALWTRP regulations. 

Prior to 2007, the only trap/pot fishery 

subject to ALWTRP requirements was 

the American lobster fishery. The 

amendments to the ALWTRP published 

in October 2007 expanded the scope of 

the plan to other trap/pot fisheries. In 

light of this situation, NMFS removed 

the ‘‘neutrally buoyant line’’ term from 

the regulations (whereby only ‘‘sinking 

line’’ remains) to facilitate 

understanding of the regulations and 

delayed the effective date of the sinking 

groundline requirement for trap/pot 

fisheries from October 5, 2008, to April 

5, 2009, to ensure compliance with 

these requirements. 

Comment 26: Many commenters 

believed the proposed action is 

unnecessarily broad in scope and will 

relax requirements already in place and 

being used by many New England 

fishermen (i.e., fishermen who 

converted a portion of their gear due to 

SAM and DAM regulations, and/or MA 

state lobstermen). Several commenters 

were concerned fishermen may revert to 

the use of floating line in the absence of 

previous requirements for sinking line 

in certain areas and one commenter 

failed to see how this situation justified 

the proposed deferral. Another 

commenter stated that fishermen who 

have yet to make the conversion to 

sinking groundlines, or that were 

planning to make the conversion before 

October, are now being told they have 

no obligation to use sinking line during 

the delay. 

Response: NMFS believes an 

extended phase-in period is warranted 

along the Atlantic coast to enable trap/ 

pot fishermen to rig their gear with 

sinking groundline, but believes 

fishermen will be continually 

converting their gear up until the 

effective date, which will result in 

progressive risk-reduction to large 

whales. Additionally, once fishermen 

have invested significant time and costs 

into converting to sinking groundline, 

they are unlikely to reinvest additional 

resources to reconvert their gear for a 

short, six-month window. See response 

to Comment 25. 

Comment 27: Some commenters felt 

that although NMFS justified the 

proposed delay in implementation 

based upon confusion and/or an 

inability to comply, the real reason 

behind the proposed delay is to allow 

the industry time to undermine the 

protective measures in the October 2007 

ALWTRP final rule. Commenters cited a 

June 3, 2008, MLA press release, where 

the group states that the delay would 

allow them time to ‘‘work to find a 

whale protection plan that is better 

suited for [their] area’’ and would allow 

them to ‘‘submit an alternative proposal 

that would exempt certain additional 

areas from the sinking line rule’’. 

Several commenters also noted that the 

Maine senatorial delegation issued a 

press release shortly before NMFS 

published its proposal to delay 

implementation, stating that 

implementation would be delayed and 

the delay would provide ‘‘an 

opportunity to improve the rules that 

will ultimately go into effect’’ (Snowe 

2008). Commenters believed that such 

statements indicate the intent by the 

Maine lobster industry to further delay 

their compliance and to work to 

undermine and further modify the 

protections of the October 2007 

ALWTRP rule. Commenters also 

believed that NMFS’ rationale appeared 

to accommodate the trap/pot industry’s 

desire to further amend the final rule. 

Response: Confusion over the type of 

line the regulations require and debate 

over potential changes to the regulations 

have slowed the commercial fishing 

industry’s progress in converting to 

sinking groundline. The conversion 

process has also been slowed by 

confusion over which trap/pot fisheries 

are now subject to ALWTRP regulations. 

In light of this situation, NMFS is 

delaying the effective date of the sinking 


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groundline requirement for trap/pot 

fisheries from October 5, 2008, to April 

5, 2009. 

Although the ALWTRT has been 

discussing possible proposals related to 

exemptions to the sinking groundline 

requirement (in exchange for significant 

reductions in vertical lines) in specific 

areas these have not yet received even 

conceptual support by the ALWTRT. If 

conceptual support were achieved, 

significant work would remain to 

develop and agree to details of such a 

proposal. Any associated modification 

to the ALWTRP, pending approval, 

would be conducted through a separate 

rulemaking action. Thus, those 

discussions occurring with the 

ALWTRT are on a separate track and are 

independent of this action. See response 

to Comment 7 for further clarification. 

Comment 28: One commenter 

believed that most of the concerns about 

the sinking line requirement were 

coming from Maine fishermen. 

Although the MLA asserts that Maine 

state waters are low risk to whales, the 

commenter noted that NMFS’ own data 

show whales have become entangled in 

lobster gear in Maine state waters. 

Specifically, the commenter stated that 

a number of documented large whale 

entanglement cases were from the 

Maine inshore lobster industry and 

these numbers likely underestimate all 

the entanglements. 

Response: The majority of the east 

coast lobster trap/pot fishery, is off the 

state of Maine. Thus, it is not surprising 

that much of the confusion has occurred 

in the Northeast. However, there has 

been confusion in other areas as well. 

NMFS acknowledges that some 

entanglements have occurred in gear 

originally set in Maine state waters; 

therefore, there are portions of Maine 

waters that are subject to the ALWTRP 

regulations. 

Comment 29: Several commenters 

questioned why NMFS is not proposing 

a delay for the gillnet fishing industry, 

as NMFS began to regulate the Northeast 

anchored float gillnet and drift gillnet 

fisheries under the October 5, 2007, 

final rule (72 FR 57104), in addition to 

the other new fisheries. The 

commenters requested that NMFS 

provide an explanation as to why the 

regulated gillnet fisheries are apparently 

capable of complying with the sinking 

groundline requirement, the limited 

availability of sinking groundline does 

not apply to this industry, and there is 

no confusion as to what constitutes 

sinking groundline within the gillnet 

fishery (but all of the above applies to 

regulated trap/pot fisheries). 

Response: It is important to note that 

the newly regulated Northeast anchored 

float and drift gillnet fisheries represent 

much lower effort than the Northeast 

sink gillnet fishery which has been 

regulated previously. Additionally, the 

Northeast sink gillnet fishery in turn 

represents much lower effort compared 

to the Atlantic trap/pot fisheries. NMFS 

believes that the gillnet industry does 

not require the same amount of time and 

resources to change over their 

groundline compared to the trap/pot 

industry. The gillnet fishery is smaller 

in size and does not have the length of 

groundline compared to the trap/pot 

fishery (NMFS, 2007). Thus, NMFS 

believes that the gillnet fishery can 

convert its groundline to sinking line in 

a shorter amount of time. Additionally, 

the gillnet fishery is accustomed to 

using rope that sinks to the bottom (i.e., 

leadline) versus the trap/pot fishery. 

Gillnet fishermen have therefore had 

more experience using line that lies on 

the bottom of the ocean floor. 

Comment 30: One commenter 

questioned NMFS’ statement that the 

delay is needed to avoid a spike in 

demand which could outstrip the 

capacity of rope manufacturers and that 

NMFS has monitored the availability of 

line. The commenter stated that NMFS 

has failed to explain why/how the 

initial 12–month phase-in was 

inadequate nor has the Agency provided 

the results of its purported 

‘‘monitoring’’ or document that supply 

has been insufficient over the last 9 

months since the publication of the final 

rule. 

Response: Those who have yet to 

complete the conversion to sinking rope 

would be allowed under this final rule 

to continue this process for an 

additional six months. This would 

reduce compliance costs, since more 

line could be converted when it 

ordinarily would need to be replaced, 

avoiding the costs associated with 

accelerating gear replacement. This 

would also help to smooth any spike in 

demand for sinking line, which could 

outstrip the capacity of cordage 

manufacturers, drive up prices, and 

impair fishermen’s ability to comply. 

See Comment 13 which was written by 

a manufacturer and which supports 

NMFS’ statements on demand and 

availability issues. In the October 2007 

final rule, NMFS allowed a twelve 

month phase-in of the sinking 

groundline requirement based on the 

magnitude of this requirement. 

However, as noted in the Record of 

Decision (ROD) for the October 2007 

amendments to the ALWTRP (72 FR 

56335, October 3, 2007), NMFS 

committed to continue to monitor the 

supply and situation of available rope 

through discussions with industry 

during the upcoming year. Since 

publication of the final rule, NMFS has 

monitored both the availability of 

sinking groundline and the progress of 

the fishing industry in converting to 

sinking groundline. Through these 

efforts, NMFS has determined that both 

the American lobster fishery and other 

trap/pot fisheries require additional 

time to convert to sinking groundline. 

This has been determined through 

various forms of NMFS communication 

(e.g., meetings, phone calls) with 

stakeholders, including manufacturers, 

gear suppliers, and industry members. 

Comment 31: Many commenters 

noted a potential mistake in the 

preamble to the proposed rule within 

the list of reasons NMFS supplies to 

justify how the impact of the proposed 

extension would be minimal to large 

whales. The fifth justification reads, 

‘‘gear buyback programs from Maine to 

North Carolina that have assisted in the 

conversion of sinking groundline for 

lobster trap/pot fisheries have already 

removed a large amount of sinking 

groundline from the ocean ‘‘

Commenters indicated that the word 

‘‘sinking’’ should have actually read 

‘‘floating’’. One commenter noted that as 

written, the statement appears to justify 

rejecting rather than adopting the delay. 

Response: In the preamble to the 

proposed rule, the statement above 

should have read ‘‘gear buyback 

programs from Maine to North Carolina 

that have assisted in the conversion of 

sinking groundline for lobster trap/pot 

fisheries have already removed a large 

amount of floating groundline from the 

ocean ‘‘ This represented an error 

during writing the preamble to the 

proposed rule only, and does not mean 

the justification should be rejected. 

Comment 32: Many commenters 

disputed NMFS’ statement that there 

was confusion within the industry, 

especially in the Northeast. Commenters 

believed there was no information 

provided to evaluate the extent of this 

confusion, whether it was based on 

terminology in the October 2007 

regulations, and why a simple 

clarification would not rectify the 

confusion. Commenters felt the stated 

confusion does not exist because: (1) 

thousands of comments have been 

received from the lobster industry 

focused on the groundline requirement, 

indicating that fishery participants have 

clearly understood what has been 

proposed for several years; (2) NMFS 

has invested ample time and effort in 

advising and preparing fishermen for 

implementation of this requirement 

through the development and 

distribution of extensive outreach 

materials, including the distribution of 


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permit holder letters which detailed 

requirements for compliance (3) NMFS 

has two fisheries liaisons to bring 

information about the rule to local 

fishermen; (4) although the final rule 

added new fisheries under the 

ALWTRP, it was clearly stated which 

new fisheries were added and the 

proposed rule also contained the same 

list of fisheries; (5) several of the 

fisheries are represented on the 

ALWTRT, and hence, would be aware of 

pending regulations; (6) the definition of 

sinking groundline has not been 

substantively changed since regulation 

began in 1997 and NMFS has developed 

a flyer that describes how the Agency 

will determine the specific gravity of 

rope; (7) several fishing industry trade 

publications have written articles on 

meetings for fishermen about the 

upcoming changeover of line, funds 

available and listed manufacturers who 

offer compliant line from Maine through 

the mid-Atlantic (CFN 2006, FV 2006); 

(8) in January, 2007, the State of 

Massachusetts required all lobstermen 

to convert to sinking groundlines, using 

the same specifications as NMFS, and 

no confusion resulted; and (9) fishermen 

have been required to convert to sinking 

line since 2003 due to SAM and DAM 

regulations. One commenter questioned 

why NMFS finds it necessary to defer 

implementation of the rule outside the 

Northeast if the majority of the 

confusion is in the Northeast. One 

commenter believed it was unacceptable 

for large whales to bear the burden of 

the Agency’s failure to clearly 

communicate the regulatory 

requirements of the ALWTRP. 

Response: Based on the actions 

commenters note above, NMFS believes 

numerous fishermen have made the 

conversion to sinking groundline. 

However, regardless of the numerous 

efforts NMFS had undertaken, 

confusion with the requirements has 

continued to occur ranging from which 

type of line is required to which 

fishermen are impacted and where. The 

October 5, 2007, amendment to the 

ALWTRP represented significant 

modifications to the regulations. 

Fishermen from Maine through Florida 

were affected and the rule introduced 

several new requirements for both 

fishermen previously regulated under 

the plan as well as numerous fishermen 

regulated for the first time by the 

October 2007 final rule. 

Comments on NMFS’ Mandates 

Comment 33: Several commenters 

stated that they believed the proposed 

delay in implementation would be in 

violation of the Marine Mammal 

Protection Act (MMPA). Commenters 

explained that according to the MMPA, 

when the take of a species/population 

exceeds PBR, it is afforded a take 

reduction plan and that, under this 

specification, the death of right whale 

#3107 should have resulted in a new 

ALWTRP final rule by 2004, however 

the final rule was not published until 

October 2007, only after legal action was 

taken. One commenter asserted that 

delaying implementation of the 2007 

final rule violates the strict, statutory 

deadlines of the MMPA requiring the 

prompt development and issuance of a 

final rule as well as the timely 

implementation of that rule. Also, some 

commenters noted that the deaths of 

right and humpback whales continue to 

exceed PBR and that the purpose of a 

take reduction plan is to ‘‘reduce, 

within six months of its 

implementation, the incidental 

mortality or serious injury’’ of marine 

mammals ‘‘to levels less than’’ PBR 

levels (16 U.S.C.1387(f)(2)). One 

commenter believed that NMFS has 

been out of compliance with the 

MMPA’s deadlines for development, 

approval, and implementation of the 

revised ALWTRP for several years 

following the death of right whale 

#3107. 

Response: The MMPA sets up a 

process for developing and issuing take 

reduction plans, monitoring the plans 

regularly, meeting with the take 

reduction teams regularly, and making 

amendments if necessary to meet the 

goals of the MMPA. NMFS has been 

acting consistent with that process. The 

first ALWTRP was issued in 1997, and 

NMFS has modified the ALWTRP 

numerous times since with input from 

the ALWTRT to further these goals of 

the MMPA to reduce serious injury and 

mortality of large whales in commercial 

fisheries. 

Comment 34: Some commenters 

stated that they believed the proposed 

delay would be in violation of the 

Endangered Species Act (ESA). Under 

the ESA, NMFS is required to ensure 

that actions authorized by the Agency 

are not likely to jeopardize endangered 

and/or threatened species, and one 

commenter believed under these 

provisions, NMFS can not legally 

authorize the take of a single animal. 

Two commenters stated that, in the 

2001 ESA Section 7 consultations, 

NMFS identified SAM/DAM programs 

as Reasonable and Prudent Alternatives 

(RPAs) to jeopardy for right whales and 

that NMFS would be in violation of the 

ESA if current whale protections 

required under that consultation, 

including SAM and DAM, were to be 

phased out before the sinking 

groundline requirement was 

implemented. The commenters 

requested that, if the Agency moves 

forward with the delay, then the SAM/ 

DAM programs should be reinstated 

during the time of the delay, for all 

areas. Two commenters maintained that, 

although NMFS stated the delay would 

pose ‘‘minimal’’ risk, the Agency did 

not state if it meets the legal standards 

of the ESA (or the MMPA) to ensure that 

no right whales will be taken. 

Response: The proposed delay in the 

effective date for the use of sinking line 

on pot/trap gear for all pot/trap fisheries 

does not violate the ESA. NMFS 

considered the effects to ESA-listed 

species under NMFS jurisdiction as a 

result of the proposed action in 

accordance with Section 7(a)(2) of the 

ESA. NMFS concluded that a delay in 

the effective date of the requirement to 

use sinking line will delay by six 

months the benefit to ESA-listed 

cetaceans anticipated as a result of the 

October 5, 2007 final rule (72 FR 57104) 

requiring the broad-based use of sinking 

groundline. However, the proposed 

action to delay the use of sinking 

groundline for pot/trap fisheries will 

not, in itself, cause harm to ESA-listed 

cetaceans. Since switching to sinking 

line is neither likely to benefit or harm 

ESA-listed sea turtles, shortnose 

sturgeon, or Gulf of Maine Distinct 

Population Segment of Atlantic salmon, 

a delay in the effective date for the use 

of sinking line on pot/trap gear is also 

not expected to benefit or harm these 

species. 

NMFS has reinitiated ESA Section 7 

consultation on the continued 

authorization of the federal lobster 

fishery as well as the multispecies, 

monkfish, and spiny dogfish fisheries 

given the changes to the ALWTRP, 

specifically the elimination of the DAM 

and SAM programs. Those consultations 

are in-progress. 

As noted in the recent ALWTRP final 

rule (72 FR 57104, October 5, 2007; 73 

FR 19171, April 9, 2008) the DAM and 

SAM programs were being replaced 

with a broad-based management 

scheme. Specifically, when the majority 

of the broad-based gear modifications 

became effective on April 5, 2008, the 

DAM program was eliminated. Also, the 

final rule eliminated the SAM program 

effective October 5, 2008 when the 

broad-based sinking/neutrally buoyant 

groundline requirement was to be 

effective. However, the proposed action 

does not change the requirement to use 

sinking groundline on pot/trap gear in 

areas where this modification is already 

required by the ALWTRP (either 

previously or as of April 5, 2008), such 

as SAM and the Cape Cod Restricted 

Areas. Broadening the DAM and SAM 


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gear modifications in time and space to 

all gillnet and trap/pot fisheries is more 

protective to large whales than the 

limited temporal and spatial DAM and 

SAM programs required in the RPA, 

even given the delay in effective date for 

the use of sinking line on pot/trap gear. 

In addition, NMFS has determined that 

large whales will be minimally effected 

by the delay in effective date given that: 

(1) the majority of the conservation 

measures included in the amendment to 

the ALWTRP would already be in place; 

(2) fishermen in special right whale 

management areas have already 

converted to sinking groundline as 

described above; (3) most trap/pot gear 

is out of the water during a portion of 

the time period before the broad-based 

sinking groundline requirements go into 

effect; (4) the primary seasonal 

distribution of large whales in the 

Northeast does not occur during the 

proposed delay time period (Pace and 

Merrick 2008; NMFS 2007) (where the 

majority of confusion has been reported 

to have occurred); and (5) gear buyback 

programs from Maine to North Carolina 

that have assisted in the conversion of 

sinking groundline for lobster trap/pot 

fisheries have already removed a large 

amount of sinking groundline from the 

ocean. 

Comment 35: One commenter 

asserted that delaying the 

implementation of the 2007 sinking 

groundline requirement will be in 

violation of the settlement agreement in 

HSUS v. Gutierrez (Civ. No. 07–0333). 

The commenter maintained that if 

NMFS decides to amend its ‘‘final’’

ALWTRP rule before it is ever 

implemented, the agency will violate 

the terms of the settlement which 

required the submission of an actual 

final rule on October 1, 2007. According 

to the commenter, the settlement 

agreement also requires the agency to 

either seek parties’ consent or an order 

of the court if it wishes to modify the 

date upon which the final rule is due, 

and the commenter believed NMFS has 

failed to comply with these procedures. 

Response: NMFS believes that the 

settlement agreement was fully 

complied with because the agreement 

only addressed publication of the final 

rule, and the settlement was silent with 

respect to anything else, including any 

delay of any effective dates. 

Specifically, the settlement agreement 

required NMFS to submit a final rule to 

the Federal Register by October 1, 2008, 

which NMFS did. The agreement does 

not obligate NMFS in any way regarding 

the substance of that final rule (or what 

would happen after the final rule was 

issued). 

Comment 36: One commenter 

believed that a categorical exclusion 

(CE) for this proposed rule is not 

appropriate under the National 

Environmental Policy Act (NEPA) and/ 

or NOAA Administrative Order 216–6 

(NAO 216–6) and hence, NMFS is not 

relieved of its NEPA obligations. The 

commenter maintained that pursuant to 

NEPA, the Agency must either prepare 

an Environmental Assessment (EA) or 

an Environmental Impact Statement 

(EIS) to consider the ‘‘significant’’

impacts of this proposal. The 

commenter believed NMFS could not 

argue the proposal to extend the 

implementation deadline was the 

‘‘same’’ as any other previous action 

where NMFS has already demonstrated 

no ‘‘significant impacts’’ would result, 

nor has the agency considered the 

impact of removing SAM and/or DAM 

programs without substituting broadbased gear requirements. The 

commenter states that by issuing an EIS 

for the October 2007 ALWTRP 

amendment NMFS concluded 

implementing the ALWTRP would 

cause ‘‘significant impacts,’’ and 

therefore NMFS could not now justify 

its decision that the delay would not 

have ‘‘significant impacts’’. To further 

demonstrate the inappropriateness of a 

CE and how the proposed action would 

have ‘‘significant impacts’’, the 

commenter listed several factors defined 

under 40 CFR 1508.27 and believed the 

following: (1) the proposed delay will be 

highly controversial with the public, as 

is the science NMFS is using to supports 

its CE determination; (2) there are 

questions regarding the data and science 

NMFS is relying on; (3) there may be a 

cumulatively significant impacts on the 

environment from the delay; (4) a delay 

in implementation will affect three 

endangered species (right, humpback, 

and fin whales), and NMFS’ Federal 

Register notice does not mention the 

species or their status; and (5) the 

proposed delay will violate the MMPA’s 

deadlines. 

Response: NMFS determined that this 

action is categorically excluded from the 

requirement to prepare an EA or EIS in 

accordance with sections 6.03a.3(a) and 

6.03c.3(d) of NAO 216–6. NMFS added 

clarification text to the ‘‘Classification’’

section of the proposed rule to relate 

each section to the associated action 

being considered, and expands upon the 

justification here. Under section 

6.03a.3(a) of NAO 216–6 the revision 

includes a delay amendment that ‘‘will 

hold no potential for significant 

environmental impacts.’’ Specifically, 

NMFS has determined that the impact 

on large whales from this delay would 

be minimal (see response to Comment 

34 below for information on the 

rationale). Additionally, NMFS 

determined that a delay in the effective 

date of the requirement to sinking line 

will delay the benefit afforded by this 

change for six months, but will not, in 

itself, cause harm to ESA-listed 

cetaceans. Additionally, under section 

6.03c.3(d) of NAO 216–6 this 

amendment would will facilitate 

enforcement efforts. Specifically, this 

action will help to clarify the intent of 

the agency with respect to the type of 

sinking line to purchase and to aid in 

enforcement of the current regulations. 

This action does not trigger the 

exceptions to categorical exclusions 

listed in NAO 216–6, Section 5.05c, 

because it: 

(1) Does not involve a geographic area 

with unique characteristics. The 

Atlantic coast includes many diverse 

characteristics; 

(2) Is not the subject of public 

controversy based on potential 

environmental consequences. This 

action is not scientifically controversial 

(see response to Comment 37 below); 

(3) Does not involve uncertain 

environmental impacts or unique or 

unknown risks. See the biological 

information summarized in the 

paragraph above, as well as in the 

proposed rule and RIR; 

(4) Does not establish a precedent or 

decision in principle about future 

proposals. See responses to Comments 

23 and 39 with regards to other 

proposals; 

(5) Does not result in cumulatively 

significant impacts. NMFS determined 

that a delay in the effective date of the 

requirement to sinking line will delay 

the benefit afforded by this change for 

six months, but will not, in itself, cause 

harm to ESA-listed cetaceans. See the 

biological information summarized in 

the paragraph above, as well as in the 

proposed rule and RIR. Also, as noted 

in NMFS Notice of Intent (NOI) to 

conduct an EIS (68 FR 38676, June 30, 

2003), this EIS was originally intended 

to analyze impacts to the environment 

of different management alternatives 

that would finalize the SAM program. 

However, due to continuing large whale 

entanglements in fishing gear since the 

publication of the SAM interim final 

rule, NMFS determined that additional 

modifications to the ALWTRP were 

needed. Therefore, the notice 

announced NMFS’ intent to change the 

scope of the EIS and consider more 

alternatives for possible amendments to 

the ALWTRP. Thus, the rationale for the 

EIS as noted in the NOI was not related 

to significance but rather expanding the 

scope of the ALWTRP modifications to 


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consider. This present action is not as 

broad in scope as the October 5, 2007, 

ALWTRP amendment for which a FEIS 

(NMFS 2007) was conducted and all 

impacts on the human environment 

analyzed. This final action represents an 

ALWTRP amendment that is much more 

limited in scope and solely represents a 

6–month delay of a requirement and 

deletion of a definition. Additionally, it 

is important to note that issuing an EIS 

under NEPA does not mean that an 

action is significant; and 

(6) Does not have any adverse effects 

upon endangered or threatened species 

or their habitats. NMFS determined that 

a delay in the effective date of the 

requirement to sinking line will delay 

the benefit afforded by this change but 

will not, in itself, cause harm to ESAlisted cetaceans. Therefore, if there are 

no adverse effects expected from this 

action then there are also no significant 

adverse impacts (See additional 

biological information summarized in 

the paragraph above). 

Comment 37: One commenter cited 

Hawaii County Green Party v. Evans, 

where the Northern District of California 

refused to allow NMFS to issue a CE 

when amending a scientific research 

permit, stating that NMFS may not issue 

a CE if ‘‘any of the six exceptions for 

CEs apply’’. The court found NMFS 

could not issue a CE for the research 

permit because legitimate public 

controversy regarding the permit 

existed. As the commenter felt this 

proposed action is the subject of public 

controversy, they also believed a CE is 

not appropriate. 

Response: The cited case is an 

unpublished decision, and dealt with a 

scientific research permit amendment 

issued under Section 104 of the MMPA. 

This final action is an amendment to a 

take reduction plan (i.e., a management 

plan), where a CE is appropriate as the 

six exceptions do not apply. 

Specifically, related to the exception for 

public controversy, under NEPA this is 

only meant for scientific controversy 

which NMFS has determined is not 

applicable this action. The scientific 

information cited for this rulemaking 

action is based on information in the 

FEIS (NMFS 2007), as well as Pace and 

Merrick (2008). Although the 

rulemaking that the FEIS supported was 

controversial, NMFS does not consider 

the underlying scientific data 

controversial. Additionally, NMFS does 

not consider the Pace and Merrick 

(2008) document to be scientifically 

controversial. 

Comment 38: NMFS cites sections 

6.03a.3(a) of NAO 216–6 which allows 

CEs for certain ‘‘management plans’’

and 6.03c.3(d) which allows CEs for 

certain ‘‘administrative’’ programs. One 

commenter believed that none these CE 

categories were applicable. The 

commenter stated that 6.03a.3(a)’s 

authorization of a CE is limited in 

scope, and although NAO 216–6 does 

allow CEs to be issued for some ‘‘plan 

amendments’’, it specifically requires in 

6.03a.3(a) that all ‘‘plan amendments 

not requiring an EIS must be 

accompanied by an EA unless they meet 

the criteria of a CE in section 5.05b’’. 

The commenter maintained that NMFS’

proposed delay does not meet the 

criteria in 5.05b (1) (same action 

previously determined to have no 

significant impact) or 5.05b (2) (does not 

have significant impact under the 

significance factors in 40 CFR1508.27), 

and accordingly, the proposed 

amendment ‘‘must be accompanied by 

an EA’’. The commenter also stated that 

in section 6.03a.3(b), a specific list of 

‘‘plan amendment’’ actions that warrant 

a CE are given; however, NMFS does not 

and could not claim that any of these 

actions apply. The commenter 

maintained that section 6.03a.3(b) is 

inapplicable, stating that NMFS can not 

argue that the delay in implementation 

of this measure is a ‘‘minor’’ or 

‘‘technical’’ change to the plan nor that 

the delay or implementing the delay 

without extending SAM/DAM or 

substituting new protection measures 

would have no effect (6.03a.3(b)(1)). The 

commenter believed that section 

6.03c.3(d) also does not apply to the 

proposed action, as NMFS can not 

justify a 6–month delay of 

implementation as an ‘‘administrative or 

routine’’ function under this section. 

The commenter maintained that the 

proposed rule is a substantive change to 

the ALWTRP final rule and will have 

the effect of delaying implementation of 

critical protection measures for 

endangered whales. The commenter felt 

it was unclear which of the 

administrative programs listed in 

section 6.03c.3 (d) NMFS would believe 

the proposed amendment falls into. As 

NMFS states that extending the 

implementation date will ‘‘facilitate 

enforcement efforts’’ the commenter 

found it unclear if NMFS was 

suggesting, through this statement, that 

the delay is exempt under section 

6.03c.3 (d) as an ‘‘enforcement 

operation’’, and if so, the commenter 

requested the Agency to explain how 

extending the implementation deadline 

has any relationship to facilitating 

‘‘enforcement’’. The commenter went on 

to assert that ‘‘enforcement operations’’

in 6.03c.3(d) was intended to cover 

‘‘administrative’’ enforcement decisions, 

not broad, substantive, rulemaking 

decisions regarding compliance dates. 

Lastly, the commenter stated that NAO 

216–6 contains a specific section 

governing NEPA actions for MMPArelated decisions, and that according to 

section 6.03f.1, this ‘‘take reduction 

plan amendment’’ requires require an 

EA, and hence, NMFS is not authorized 

to issue a CE for the proposed action. 

Response: NMFS has determined that 

this final rule constitutes a change to a 

management plan where a CE is 

appropriate under section 6.03a.3(a) of 

NAO 216–6. Section 6.03f.1. of NAO 

216–6 relates to the issuance of take 

reduction plans between marine 

mammals and commercial fisheries, and 

not necessarily amendments. NMFS did 

conduct an EA on the original 

implementing regulations to the 

ALWTRP in 1997. It was never NMFS’

intent for the implementation of the six 

month delay to be labeled as 

‘‘administrative’’ or as an ‘‘enforcement 

operation≥; thus, NMFS relied upon 

section 6.03a.3(a) of NAO 216–6 for the 

six month delay. 

NMFS used section 6.03c.3(d) for the 

portion of this action of deleting the 

term ‘‘neutrally buoyant line’’ in the 

October 5, 2007, final rule to facilitate 

enforcement efforts. In the October 5, 

2007, final rule, NMFS included both 

the terms ‘‘sinking’’ and ‘‘neutrally 

buoyant’’ line, with identical 

definitions, in an attempt to include 

familiar industry terms and assist in the 

understanding of the regulations. 

However, industry feedback since the 

final rule published indicates that using 

two terms has led to confusion and 

resulted in some fishermen not 

understanding what type of line is 

required for the groundline. 

Additionally, trap/pot fishermen have 

inquired about the definition of low 

profile groundline (a line that does not 

sink, but loops some distance above the 

ocean bottom lower than floating line), 

and have asked NMFS for clarification 

on whether neutrally buoyant line is the 

same as low profile line. Therefore, in 

order to ensure clarity regarding the 

groundline requirement, this action 

would remove all references to the term 

‘‘neutrally buoyant line’’ from the 

regulations (whereby only ‘‘sinking 

line’’ would remain) to facilitate both 

industry understanding of the 

regulations and enforcement efforts of 

this requirement. Therefore, this change 

is for both clarification of the 

regulations for fishermen and to 

facilitate enforcement. However, NMFS 

also believes that section 6.03a.3(b)(2) 

could also have been cited based on this 

being a minor technical change to a 

management plan. It is also important to 

clarify that NMFS did not rely on 


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Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Rules and Regulations 51241 

section 6.03a.3(b)(1) for the CE. See 

response to Comment 36 which also 

addresses comments on NAO 216–6. 

See response to Comment 34 for 

information on the elimination of the 

SAM and DAM programs. 

Comment 39: One commenter noted 

that no other alternatives were 

considered in the proposed rule. 

Response: Under NEPA, alternatives 

are not required when a CE is issued. 

Comments on Removal of ‘‘Neutrally 

Buoyant Line’’ and Its Associated 

Definition 

Comment 40: Many commenters 

supported the proposed removal of the 

term ‘‘neutrally buoyant line’’ and its 

associated definition from the ALWTRP 

regulations. Commenters agreed with 

NMFS that the deletion of this term will 

avoid potential conflict within the 

regulations, ensure a clearer 

understanding among fishermen and 

management, and assist in enforcement 

efforts. One commenter stated that the 

proposed change would not alter 

existing requirements and could reduce 

confusion. Another commenter agreed 

that the proposed deletion will 

eliminate some of the confusion within 

the industry as to which rope is legal to 

fish with under the ALWTRP. 

Response: NMFS agrees with the 

comments. 

Classification 

This final action is categorically 

excluded from the requirement to 

prepare an Environmental Assessment 

in accordance with sections 6.03a.3(a) 

and 6.03c.3(d) of NAO 216–6. 

Specifically, under section 6.03a.3(a) of 

NAO 216–6 the revision includes a 

delay amendment that ‘‘will hold no 

potential for significant environmental 

impacts,’’ and under section 6.03c.3(d) 

of NAO 216–6 the revision includes 

removal of the ‘‘neutrally buoyant line’’

term and definition which would will 

facilitate enforcement efforts. This 

action does not trigger the exceptions to 

categorical exclusions listed in NAO 

216–6, Section 5.05c; thus, a categorical 

exclusion memorandum to the file has 

been prepared.This final rule has been 

determined to be not significant for the 

purposes of Executive Order 12866. 

This final rule does not contain a 

collection of information requirements 

subject to the Paperwork Reduction Act 

(PRA). 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required and none was prepared. 

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 was submitted to the responsible 

state agencies for review under section 

307 of the Coastal Zone Management 

Act. The following states agreed with 

NMFS’ determination: New Hampshire, 

Rhode Island, New Jersey, 

Pennsylvania, Delaware, Virginia, and 

Georgia. Maine, Massachusetts, 

Connecticut, New York, Maryland, 

North Carolina, South Carolina, and 

Florida did not respond, therefore, 

consistency is inferred. 

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 provided notice of the proposed 

rule to the appropriate official(s) of 

affected state, local, and/or tribal 

governments. 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. 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. 

References 

NMFS. 2007. Final Environmental 

Impact Statement for Amending the 

Atlantic Large Whale Take Reduction 

Plan: Broad-Based Gear Modifications. 

Prepared by: Industrial Economics, Inc. 

and NOAA’s National Marine Fisheries 

Service. Northeast Region. 

Pace, Richard M. III, and Merrick, 

Richard. 2008. Northwest Atlantic 

Ocean Habitats Important to the 

Conservation of North Atlantic Right 

Whales. Northeast Fisheries Science 

Center Reference Document 08–07. 32 

pp. 

List of Subjects in 50 CFR Part 229 

Administrative practice and 

procedure, Confidential business 

information, Fisheries, Marine 

mammals, Reporting and recordkeeping 

requirements. 

Dated: August 25, 2008. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 229 is amended 

as follows: 

PART 229—AUTHORIZATION FOR 

COMMERCIAL FISHERIES UNDER THE 

MARINE MAMMAL PROTECTION ACT 

OF 1972 

■ 1. The authority citation for 50 CFR 

part 229 continues to read as follows: 

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

■ 2. In § 229.2, the definition ‘‘Neutrally 

buoyant line’’ is removed and the 

definition of ‘‘Sinking line’’ is revised to 

read as follows: 

§ 229.2 Definitions. 

* * * * * 

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. 

* * * * * 

■ 3. In § 229.32, revise paragraphs (a)(4), 

(c)(2)(ii)(D), (c)(2)(ii)(E), the first 

sentence of 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), (d)(7)(ii)(D), 

(i)(3)(i)(B)(1)(i), (i)(3)(i)(B)(2)(i), and the 

second sentence of (d)(1)(i) to read as 

follows: 

§ 229.32 Atlantic large whale take 

reduction plan regulations. 

(a)* * * 

(4) Sinking groundline exemption. 

The fisheries regulated under this 

section are exempt from the requirement 

to have groundlines composed of 

sinking line if their groundline is at a 

depth equal to or greater than 280 

fathoms (1,680 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)). 

* * * * * 

(c)* * * 

(2)* * * 

(ii)* * * 

(D) 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. 


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51242 Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Rules and Regulations 

(E) Groundlines. All groundlines must 

be composed entirely of sinking line. 

The attachment of buoys, toggles, or 

other floatation devices to groundlines 

is prohibited. 

* * * * * 

(5)* * * 

(ii)* * * 

(B) Groundlines. On or before April 5, 

2009, all groundlines must be composed 

entirely of sinking line unless exempted 

from this requirement under paragraph 

(a)(4) of this section. * * * 

* * * * * 

(6) * * * 

(ii) * * * 

(B) Groundlines. On or before April 5, 

2009, all groundlines must be composed 

entirely of sinking line unless exempted 

for this requirement under paragraph 

(a)(4) of this section. * * * 

* * * * * 

(7) * * * 

(ii) * * * 

(C) Groundlines. On or before April 5, 

2009, all groundlines must be composed 

entirely of sinking line unless exempted 

from this requirement under paragraph 

(a)(4) of this section. * * * 

* * * * * 

(8) * * * 

(ii) * * * 

(B) Groundlines. On or before April 5, 

2009, all groundlines must be composed 

entirely of sinking line unless exempted 

from this requirement under paragraph 

(a)(4) of this section. * * * 

* * * * * 

(9) * * * 

(ii) * * * 

(B) Groundlines. On or before April 5, 

2009, all groundlines must be composed 

entirely of sinking line unless exempted 

from this requirement under paragraph 

(a)(4) of this section. * * * 

* * * * * 

(d) * * * 

(1) * * * 

(i) * * * 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 line must 

be used between these objects. 

* * * * * 

(6) * * * 

(ii) * * * 

(D) Groundlines. On or before October 

5, 2008, all groundlines must be 

composed entirely of sinking line unless 

exempted from this requirement under 

paragraph (a)(4) of this section. * * * 

* * * * * 

(7) * * * 

(ii) * * * 

(D) Groundlines. On or before October 

5, 2008, all groundlines must be 

composed entirely of sinking line unless 

exempted from this requirement under 

paragraph (a)(4) of this section. * * * 

* * * * * 

(i) * * * 

(3) * * * 

(i) * * * 

(B) * * * 

(1) Anchored gillnet gear—(i) 

Groundlines. All groundlines must be 

made entirely of sinking line. * * * 

* * * * * 

(2) Trap/pot gear—(i) Groundlines. 

All groundlines must be made entirely 

of sinking line. * * * 

* * * * * 

[FR Doc. E8–20167 Filed 8–29–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 071106673–8011–02] 

RIN 0648–XK14 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Atka Mackerel in the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closures and 

openings. 

SUMMARY: NMFS is prohibiting directed 

fishing for Atka mackerel in the Eastern 

Aleutian District and the Bering Sea 

subarea of the Bering Sea and Aleutian 

Islands management area (BSAI) by 

vessels participating in the BSAI trawl 

limited access fishery. This action is 

necessary to prevent exceeding the 2008 

total allowable catch (TAC) of Atka 

mackerel in these areas by vessels 

participating in the BSAI trawl limited 

access fishery. NMFS is also 

announcing the opening and closing 

dates of the first and second directed 

fisheries within the harvest limit area 

(HLA) in areas 542 and 543. These 

actions are necessary to conduct 

directed fishing for Atka mackerel in the 

HLA in areas 542 and 543. 

DATES: The effective dates are provided 

in Table 1 under the SUPPLEMENTARY

INFORMATION section of this temporary 

action. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Hogan, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2008 TAC of Atka mackerel for 

vessels participating in the BSAI trawl 

limited access fishery in the Eastern 

Aleutian District and the Bering Sea 

subarea was established as 319 metric 

tons (mt) by the 2008 and 2009 final 

harvest specifications for groundfish in 

the BSAI (73 FR 10160, February 26, 

2008), reallocation (73 FR 44173, July 

30, 2008), and correction (73 FR 47559, 

August 14, 2008). 

In accordance with § 679.20(d)(1)(i) 

and (d)(1)(ii)(B), the Administrator, 

Alaska Region, NMFS (Regional 

Administrator), has determined that 159 

mt of the 2008 Atka mackerel TAC 

allocated to vessels participating in the 

BSAI trawl limited access fishery in the 

Eastern Aleutian District and the Bering 

Sea subarea will be necessary as 

incidental catch to support other 

anticipated groundfish fisheries. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 160 mt. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Atka mackerel in the 

Eastern Aleutian District and the Bering 

Sea subarea by vessels participating in 

the BSAI trawl limited access fishery. 

In accordance with 

§ 679.20(a)(8)(iii)(C), the Regional 

Administrator is opening the first 

directed fisheries for Atka mackerel 

within the HLA in areas 542 and 543, 

48 hours after prohibiting directed 

fishing for Atka mackerel in the Eastern 

Aleutian District and the Bering Sea 

subarea. The Regional Administrator 

has established the opening dates for the 

second HLA directed fisheries as 48 

hours after the last closure of the first 

HLA fisheries in either area 542 or 543. 

Consequently, NMFS is opening and 

closing directed fishing for Atka 

mackerel in the HLA of areas 542 and 

543 in accordance with the periods 

listed under Table 1 of this notice. 


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