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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229, 635, and 648

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

RIN 0648-AS01

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

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to amend the regulations implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP). This final rule revises the management measures for reducing the incidental mortality and serious injury to the Northern right whale (

Eubalaena glacialis

), humpback whale (

Megaptera novaeangliae

), and fin whale (

Balaenoptera physalus

) in commercial fisheries to meet the goals of the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). The measures identified in the ALWTRP are also intended to benefit minke whales (

Balaenoptera acutorostrata

), which are not strategic, but are known to be taken incidentally in commercial fisheries. This final rule implements additional regulations for the fisheries currently covered by the ALWTRP (the Northeast sink gillnet, Northeast/Mid-Atlantic American lobster trap/pot, Mid-Atlantic gillnet, Southeast Atlantic gillnet, and Southeastern U.S. Atlantic shark gillnet fisheries) and regulates several fisheries from the MMPA List of Fisheries for the first time under the ALWTRP, including the following: Northeast anchored float gillnet, Northeast drift gillnet, Atlantic blue crab, and Atlantic mixed species trap/pot fisheries targeting crab (red, Jonah, and rock), hagfish, finfish (black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), and white hake), conch/whelk, and shrimp.

DATES:

The amendments to §§ 229.2, 229.3, and 648.264(a)(6)(i) are effective April 5, 2008 and the amendment to § 635.69(a)(3) is effective November 5, 2007.

As specified in the regulatory text section of this document, amendments to § 229.32 are effective as follows:

• Paragraphs (f) introductory text, (f)(2), and (f)(3) are revised effective November 5, 2007;

• Amendments to § 229.32(f)(1)(iii) and (g)(4)(i)(B)(

1

)(

vi

) are added effective November 5, 2007 to April 5, 2008;

• Paragraphs (f)(1)(ii) and (g)(4)(i)(B)(

1

)(

iii

) are removed and reserved effective November 5, 2007;

• Subsequent revision of § 229.32 is effective April 5, 2008 except for paragraphs (c)(5)(ii)(B), (c)(6)(ii)(B), (c)(7)(ii)(C), (c)(8)(ii)(B), (c)(9)(ii)(B), (d)(6)(ii)(D), and (d)(7)(ii)(D), which will be effective October 5, 2008.

ADDRESSES:

Copies of the Final Environmental Impact Statement/Regulatory Impact Review for this action can be obtained from the ALWTRP Web site listed under the Electronic Access portion of this document. Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, progress reports on implementation of the ALWTRP, and the small entity compliance guide may be obtained by writing Diane Borggaard, NMFS, Northeast Region, 1 Blackburn Drive, Gloucester, MA 01930. For additional

ADDRESSES

and Web sites for document availability see

SUPPLEMENTARY INFORMATION

section.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Mary Colligan, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service, Northeast Region, 1 Blackburn Drive, Gloucester, MA 01930 and by e-mail to

David_Rostker@omb.eop.gov

, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:

Diane Borggaard, NMFS, Northeast Region, 978-281-9300 Ext. 6503,

diane.borggaard@noaa.gov

; Kristy Long, NMFS, Office of Protected Resources, 301-713-2322,

kristy.long@noaa.gov;

or Barb Zoodsma, NMFS, Southeast Region, 904-321-2806,

barb.zoodsma@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP Web site at

http://www.nero.noaa.gov/whaletrp/

. Copies of the most recent marine mammal stock assessment reports may be obtained by writing to Dr. Richard Merrick, NMFS, 166 Water Street, Woods Hole, MA 02543 or can be downloaded from the Internet at

http://www.nefsc.noaa.gov/psb/assesspdfs.htm.

The complete text of the regulations implementing the ALWTRP can be found either in the Code of Federal Regulations (CFR) at 50 CFR 229.32 or downloaded from the Web site, along with a guide to the regulations.

Background

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

Changes to the Boundaries and Seasons

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

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

Changes to the Lobster Trap/Pot Gear Requirements

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

The regulations for Northern Nearshore Trap/Pot Waters, Stellwagen Bank/Jeffreys Ledge Restricted Area, and the Federal portion of the Cape Cod Bay Restricted Area (May 16-December 31) will continue to require one buoy line on trawls of 5 or fewer traps.

For Northern Inshore State Trap/Pot Waters and the state portion of the Cape Cod Bay Restricted Area (May 16-December 31), this final rule will eliminate the Lobster Take Reduction Technology List (i.e., a list of gear modification options) and require a 600-lb (272.2-kg) weak link on all flotation devices and/or weighted devices (except traps/pots, anchors, and leadline woven into the buoy line) attached to the buoy line (effective April 7, 2008).

This final rule will also lower the weak link breaking strength on all flotation devices and/or weighted devices attached to the buoy line in the nearshore portion of the Great South Channel Restricted Area that overlaps with Lobster Management Area (LMA) 2 and the Outer Cape (July 1-March 31) from 2,000 lb (907.2 kg) to 600 lb (272.2 kg) (effective April 7, 2008). All fishermen in the nearshore portion of the Great South Channel Restricted Area will then be required to have a 600-lb (272.2-kg) weak link on all flotation devices and/or weighted devices (except traps/pots, anchors, and leadline woven into the buoy line) attached to the buoy line.

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

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

Southern Nearshore Trap/Pot Waters Area

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

Changes to the Other Trap/Pot Gear Requirements

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

Red Crab Trap/Pot Gear

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

Changes to the All Trap/Pot Gear Requirements

Broad-Based Gear Modifications

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

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

ALWTRP-Regulated Trap/Pot Waters

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

Boundaries and Seasons

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

Sinking/Neutrally Buoyant Groundlines

Under this final rule, the lobster trap/pot fishery currently regulated by the ALWTRP, as well as the other trap/pot fisheries added through this final rule, will be required to use groundline composed entirely of sinking and/or neutrally buoyant line in the applicable areas and time periods effective twelve months after publication of this final rule (unless otherwise required in the Cape Cod Bay Restricted Area for trap/pots [January 1-May 15]). The sinking and/or neutrally buoyant groundline requirement will be effective in expanded SAM areas effective 6 months after publication of this final rule.

Based on public comments received regarding the line between traps and anchors, and a review of the groundline definition, NMFS finds that the definition does not cover this portion of the gear. (The groundline definition “with reference to trap/pot gear, means a line connecting traps in a trap trawl, and with reference to gillnet gear, means a line connecting a gillnet or gillnet bridle to an anchor or buoy line.”) NMFS did not specifically seek nor receive public comment on the groundline definition related to the line between traps and anchors, and accordingly cannot make any adjustments to the definition at this time. NMFS will be conducting further investigations of this gear configuration through contact with fishermen and states to determine how common a practice it is in trap/pot fisheries, determine the type of line used in this portion of the gear, quantify potential risk if floating line is used, determine any new issues that may be raised by requiring sinking and/or neutrally buoyant line in this area of the gear, and discuss the appropriate management response with the ALWTRT at the next meeting.

Weak Links

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

Changes to the Gillnet Gear Requirements

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

Anchored Gillnets

Under this final rule, NMFS will require an 1,100-lb (499.0-kg) weak link on all flotation devices and/or weighted devices (except gillnets, anchors, and leadline woven into the buoy line) attached to the buoy line (effective April 7, 2008). For anchored gillnets in the Northeast sink gillnet fishery, NMFS will also require an increase in the number of weak links per gillnet net panel from one weak link with a maximum breaking strength of 1,100 lb (499.0 kg) to five or more weak links with a maximum breaking strength of 1,100 lb (499.0 kg), depending on the length of the gillnet net panel (effective April 7, 2008). The weak link requirement will apply to all variations in panel size. For example, gillnet net panels of 50 fathoms (300 ft or 91.4 m) or less in length, will be required to have one weak link in the floatline at the center of the gillnet net panel. For gillnet net panels greater than 50 fathoms (300 ft or 91.4 m), weak links will be placed continuously along the floatline separated by a maximum distance of 25 fathoms (150 ft or 45.7 m). For all variations in panel size, the following weak link requirements will apply: (1) Weak links will be placed in the center of each of the up and down lines at each end of each gillnet net panel, and (2) one floatline weak link will be placed as close as possible to each end of the gillnet net panel just before the floatline meets the up and down line. Up and down line means the line that connects the floatline and leadline at the end of each gillnet net panel.

In addition to the above configuration for gillnet net panel weak links, NMFS will allow the following option for all variations in panel size: (1) Weak links will be placed in the center of each of the up and down lines at each end of each gillnet net panel, (2) weak links will be placed between the floatline tie loops between gillnet net panels, and (3) weak links will be placed between the floatline tie loop and bridle or buoy line at each end of a net string (depending on how the gear is configured) (see Figure 3). Tie loops mean the loops on a gillnet net panel used to connect gillnet net panels to the buoy line, groundline, bridle, or each other. NMFS will also be allowing the optional configuration in the current SAM areas, as well as in established DAM zones when a gear modification option is selected (effective November 5, 2007). See the

Changes from Proposed Rule

section (6) below for further information on the rationale for this optional configuration, as well as for allowing it in the current SAM areas and established DAM zones.

For the above configuration options, weak links must be chosen from the following combinations approved by NMFS: Plastic weak links or rope of appropriate breaking strength. If rope of appropriate breaking strength is used throughout the floatline or as the up and down line, or if no up and down line is present, then individual weak links are not required on the floatline or up and down line. In addition, all anchored gillnets, regardless of the number of gillnet net panels, will be required to be securely anchored with the holding

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

Mid/South Atlantic Gillnet Waters

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

Anchored Gillnets

Under this final rule, all anchored gillnets in the Mid/South Atlantic Gillnet Waters must have an 1,100-lb (499.0-kg) weak link on all flotation devices and/or weighted devices (except gillnets, anchors, and leadline woven into the buoy line) attached to the buoy line (effective April 7, 2008). Additionally, if gillnets are not returned to port with the vessel they must contain five or more weak links depending on the length of the gillnet net panel, with a maximum breaking strength no greater than 1,100 lb (499.0 kg) for each gillnet net panel; and be anchored at each end with an anchor capable of the holding capacity equal to or greater than a 22-lb (10.0-kg) Danforth-style anchor (effective April 7, 2008). The configuration options for gillnet net panel weak links and anchoring are similar to that specified for anchored gillnets in the Other Northeast Gillnet Waters section of this rule. The same configuration option would be required for all gillnet net panels in a string. All gillnets, even if returned to port with the vessel, must also contain one weak link with a maximum breaking strength no greater than 1,100 lb (499.0 kg) in the center of the floatline of each gillnet net panel up to and including 50 fathoms (300 ft or 91.4 m) in length, or at least every 25 fathoms (150 ft or 45.7 m) along the floatline for longer panels in previously unregulated waters (effective April 7, 2008).

Gillnets within 300 yards (900 ft or 274.3 m) of the shoreline of North Carolina that are not returned to port with the vessel will have an additional option for setting their gear. Gillnets set in this area may configure their gear as follows: five or more weak links per gillnet net panel (depending on the length of the gillnet net panel) with a maximum breaking strength of 600 lb (272.2 kg) must be deployed, and be anchored with the holding capacity equal to or greater than an 8-lb (3.6-kg) Danforth-style anchor on the offshore end of the net string and with a dead weight equal to or greater than 31-lb (14.1-kg) on the inshore end of the net string (effective April 7, 2008). The entire net string must be set within 300 yards (900 ft or 274.3 m) of the beach in North Carolina for this optional anchoring system and gillnet net panel weak link configuration. This configuration is in addition to the final configuration of five or more weak links per gillnet net panel (depending on the length of the gillnet net panel) with a maximum breaking strength of 1,100-lb (499.0-kg), and anchored with the holding capacity equal to or greater than a 22-lb (10.0-kg) Danforth-style anchor on each end of the net string. Specifics on the configuration options for the placement of gillnet net panel weak links can be found in the Other Northeast Gillnet Waters section of this rule.

At this time, NMFS is not regulating gillnets that are anchored to the beach and subsequently hauled onto the beach to retrieve the catch. This fishing technique is known to occur on the beaches of North Carolina. NMFS will be discussing the appropriate management measures for this unique fishery with the ALWTRT at a future meeting. In the meantime, NMFS will be conducting outreach and research on this fishery to support future discussions with the ALWTRT. NMFS will be coordinating with the North Carolina Department of Marine Fisheries to revise the definition for beach -based gear to help ensure landings are reported accurately for beach-based gear versus gillnets, among other issues.

Drift Gillnets

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

Other Southeast Gillnet Waters

Under this final rule, the management area for the Southeast Atlantic gillnet and Southeastern U.S. Atlantic shark gillnet fisheries off Georgia and Florida will be expanded and renamed (effective April 7, 2008). Specifically, this final rule will define the waters east of 80°00′ W. long. from 32°00′ N. lat. south to 26°46.5′ N. lat. and out to the eastern edge of the EEZ as one ALWTRP management area named “Other Southeast Gillnet Waters”. The expansion of this area east to the eastern edge of the EEZ will be consistent with the ALWTRP area boundary expansion in the Mid-Atlantic.

Under this final rule, NMFS will establish the seasonal restricted time period in Other Southeast Gillnet Waters (effective April 7, 2008). ALWTRP regulations for the Southeast Atlantic gillnet fishery operating in the Other Southeast Gillnet Waters between 32°00′ N. lat. to 29°00′ N. lat. (near New Smyrna Beach, FL) will be effective from November 15 to April 15, and between 29°00′ N. lat. and 27°51′ N. lat. will be effective from December 1 to March 31. For the Southeastern U.S. Atlantic shark gillnet fishery, ALWTRP regulations in the Other Southeast Gillnet Waters between 32°00′ N. lat. to 29°00′ N. lat. will be effective from November 15 to April 15, and between 29°00′ N. lat. and 26°46.5′ N. lat. will be effective from December 1 to March 31.

Southeast Atlantic Gillnet Fishery

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

In addition, under this final rule, all gillnets in the Other Southeast Gillnet

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

Southeastern U.S. Atlantic Shark Gillnet Fishery

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

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

Under this final rule, the management areas for the Southeastern U.S. Atlantic shark gillnet and Southeast Atlantic gillnet fishery management areas will be redefined (effective April 7, 2008). Specifically, for the Southeastern U.S. Atlantic shark gillnet fishery, the regulated waters landward of 80°00′ W. long. from 27°51′ N. lat. to 26°46.5′ N. lat. will be designated as the Southeast U.S. Monitoring Area (rather than the Southeast U.S. Observer Area). For both the Southeastern U.S. Atlantic shark gillnet and Southeast Atlantic gillnet fisheries, the regulated waters landward of 80°00′ W. long. from 32°00′ N. lat. to 27°51′ N. lat. will be designated as the Southeast U.S. Restricted Area, consisting of a northern area “N” between 32°00′ N. lat. and 29°00′ N. lat. and a southern area “S” between 29°00′ N. lat. and 27°51′ N. lat.

Under this final rule, the management areas for gillnet fisheries will be regulated with rolling restrictions (effective April 7, 2008). The Southeastern U.S. Atlantic shark gillnet and Southeast Atlantic gillnet fisheries will be regulated in waters from 32°00′ N. lat. to 29°00′ N. lat. (near New Smyrna Beach, FL) from November 15 through April 15. The Southeastern U.S. Atlantic shark gillnet fishery will be regulated in waters from 29°00′ N. lat. to 26°46.5′ N. from December 1 through March 31, and the Southeast Atlantic gillnet fishery will be regulated in waters from 29°00′ N. lat. to 27°51′ N. lat. from December 1 through March 31.

NMFS is also allowing the use of vessel monitoring system (VMS) in lieu of the 100-percent observer coverage requirement for the Southeastern U.S. Atlantic shark gillnets in the newly defined Southeast U.S. Monitoring Area (27°51′ N. lat. to 26°46.5′ N.) under the ALWTRP (effective November 5, 2007). Although 100-percent observer coverage will no longer be required in this area, NMFS will retain observer coverage sufficient to produce statistically reliable results for evaluating the impact of the fishery on protected resources. In light of the revised change from 100-percent observer coverage to VMS, NMFS is changing the name of the “Southeast U.S. Observer Area” to the “Southeast U.S. Monitoring Area.”

Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks (68 FR 74746, December 24, 2003; 69 FR 19979, April 15, 2004; and 69 FR 28106, May 18, 2004) requires gillnet vessels issued directed shark limited access permits that have gillnet gear on board, regardless of their location, to employ a NMFS approved VMS during the right whale calving season specified in the ALWTRP regulations. Currently, as stated in the August 17, 2004, final rule (69 FR 51010, August 17, 2004) specifying November 15, 2004, as the effective date of this requirement, the applicable right whale calving season is identified as November 15 through March 31. This final rule will change the right whale season specified in those regulations for the Southeast U.S. Monitoring Area to December 1 through March 31 and amend the regulatory text in 50 CFR 635.69(a)(3) regarding the Highly Migratory Species (HMS) VMS requirement for Southeastern U.S. Atlantic shark gillnet vessels.

Changes to the Other Gillnet Gear Requirements

Northeast Anchored Float Gillnet Fishery

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

Northeast Drift Gillnet Fishery

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

Changes to the All Gillnet Gear Requirements

Broad-Based Gear Modifications

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

Boundaries and Seasons

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

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

Sinking/Neutrally Buoyant Groundlines

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

Weak Links

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

Revised SAM Program

The final rule will amend the SAM program by establishing new boundaries for the SAM areas and revising the gear modifications required for fishing within these areas. The changes to the SAM program described in this final rule will become effective on April 7, 2008, to protect right whales. The SAM program will be eliminated October 6, 2008, when all of the broad-based gear modifications are effective.

This final rule will modify the existing coordinates for the SAM areas. Specifically, the western boundary of SAM West will be extended westward to encompass seasonal aggregations of right whales that occur north of the Cape Cod Bay Restricted Area. Similarly, the southern boundary of SAM West will be extended further south, adjoining the Great South Channel Restricted Sliver Area, to encompass seasonal aggregations of right whales that occur south of the current SAM West and west of the Great South Channel Restricted Area. Finally, the southern boundary of SAM East would be revised to include the Great South Channel Restricted Area including the Sliver Area, but will exclude the southeast corner of the existing SAM East area where there have been very few right whale sightings. The western boundary of SAM East will be extended west to 69° 45′W. long. to encompass right whales that might remain in SAM West in May (after the SAM West area restrictions have expired) (Table 1; Figure 8).

Table 1.—Seasonal Area Management

Point

Latitude (North)

Longitude (West)

SAM

West Polygon—in Effect From March 1-April 30

1W

42°30′

70°30′ (NW Corner)

2W

42°30′

69°24′

3W

41°48.9′

69°24′

4W

41°40′

69°45′

5W

41°40′

69°57′ along the eastern shoreline of Cape Cod to

6W

42°04.8′

70°10′

7W

42°12′

70°15′

8W

42°12′

70°30′

1W

42°30′

70°30′ (NW Corner)

SAM

East Polygon—in Effect From May 1-July 31

1E

42°30′

69°45′ (NW Corner)

2E

42°30′

67°27′

3E

42°09′

67°08.4′

4E

41°00′

69°05′

5E

41°40′

69°45′

1E

42°30′

69°45′ (NW Corner)

Revised SAM Gear Modifications

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

Changes to the SAM Program for All Trap/Pot Gear

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

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

Changes to the SAM Program for Gillnet Gear

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

Other Changes for All Trap/Pot and Gillnet Gear

DAM Program

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

Groundlines

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

Gear Marking

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

Trap/Pot Gear Marking Colors

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

Gillnet Gear Marking Colors

Under this final rule, for consistency with the current gillnet gear marking scheme in the Northeast Atlantic, NMFS will require one 4-inch (10.2-cm) green mark midway along the buoy line for the two new fisheries that will be added to the ALWTRP: Northeast drift gillnet and Northeast anchored float gillnet.

Prior to this final rule, there were no gear marking requirements for the two gillnet fisheries operating in the Mid/South Atlantic: the Mid/South Atlantic anchored gillnet and Mid/South Atlantic drift gillnet fisheries. Under this final rule, NMFS will require that these fisheries mark their buoy lines with one 4-inch (10.2-cm) blue mark midway along the buoy line.

Under this final rule, the Southeast Atlantic gillnet fishery will be required to mark their buoy lines with one 4-inch (10.2-cm) yellow mark midway on the buoy line in the same manner as the Mid/South Atlantic gillnet fisheries. As mentioned above, the color and marking scheme for nets used in the Southeastern U.S. Atlantic shark gillnet fishery would remain status quo and only buoy lines greater than 4 feet (1.2 m) in length will need to be marked.

Exempted Waters

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

Coastal Exempted Waters

To be consistent throughout the east coast, under this final rule, with the exceptions detailed below, NMFS will exempt all marine and tidal waters landward of the 72 COLREGS demarcation lines. The 72 COLREGS lines are well known and widely published lines of demarcation. In four areas, Casco Bay (Maine), Portsmouth Harbor (New Hampshire), the state of Massachusetts, and Long Island Sound and Gardiners Bay (New York), NMFS will not use the 72 COLREGS lines and will instead create different exemption lines. Any exemption lines for these areas, as well as areas where the 72 COLREGS lines do not exist, are explained in the

Changes From the Proposed Rule

sections (2) through (4) below.

Based on the public comments received and an analysis of the available data, NMFS will use an exemption line for the coast of Maine that is largely based on the line suggested by the Maine Department of Marine Resources (Maine DMR). The final exemption line for Maine will begin at the Maine-Canada border and extend south and west along the Maine coastline to Odiornes Point, New Hampshire. The line will be connected using a series of 25 buoys and islands along the Maine coast (Figure 4). See the regulations in this final rule for the coordinates of the Maine exemption line. See

Changes From the Proposed Rule

section (2) below for further information on the rationale for the final Maine exemption line.

Through this final rule, NMFS is modifying the exempted waters for New Hampshire's three harbors, two as proposed and one slightly modified. As proposed, NMFS will exempt Rye and Hampton Harbors according to the lines drawn across the headlands which mark their entrances to the sea. Portsmouth Harbor will not be exempted according to the 72 COLREGS demarcation line (the only 72 COLREGS line found in the state) because it will be exempted through the final exemption line for Maine, as this line's final coordinate is located at Odiornes Point, New Hampshire.

The exempted waters for Massachusetts will continue to include state waters landward of the first bridge over any embayment, harbor, or inlet. See the

Changes From the Proposed Rule

section (3) below for further information on the rationale for the final Massachusetts exemption line. This final rule will not modify the current exemption lines for Massachusetts or Rhode Island, except for minor refinement of the exemption line coordinates for Point Judith Pond and Quonochontaug Pond Inlets in Rhode Island. However, under this final rule, NMFS will clarify that the exemption line coordinates drawn for Narragansett Bay and the Sakonnet River match the 72 COLREGS lines for these waters (Figure 5).

In New York, with the exception of New York Harbor, all embayments, harbors, and inlets are currently exempted under the ALWTRP. Under this final rule, these exempted waters will remain unchanged with the exception of the Long Island Sound and Gardiners Bay area. However, NMFS will clarify that the exemption lines for Shinnecock Bay Inlet, Moriches Bay Inlet, Fire Island Inlet, and Jones Inlet match the 72 COLREGS demarcation lines. In addition, NMFS will create an exemption line for New York Harbor based on the 72 COLREGS line. This is a line drawn from East Rockaway Inlet Breakwater Light to Sandy Hook Light. Under this final rule, NMFS will exempt a portion of Block Island Sound landward of the territorial sea baseline which extends from Watch Hill Point, Rhode Island, to Montauk Point, New York (Figure 5). See the

Changes From the Proposed Rule

section (4) below for further information on the rationale for creating the Block Island Sound exemption line.

NMFS clarifies that the entire shoreline of New Jersey would be exempted landward of the 72 COLREGS demarcation lines. In doing this, the exemption line for Barnegat Inlet will be relocated slightly east of the current exemption line to make it consistent with the 72 COLREGS demarcation line.

NMFS redefines the exemption line for Delaware Bay as the 72 COLREGS demarcation line. This is a line drawn from Cape May Light to Harbor of Refuge Light; thence to the northernmost extremity of Cape Henlopen (Figure 6). Along the Maryland and Virginia shorelines, two of the four existing exemption lines match the 72 COLREGS lines. However, the exemption line from Chincoteague to Ship Shoal Inlet crosses the 3-nautical mile (5.6-km) state waters line, which is not consistent with the 72 COLREGS lines. Under this final rule, NMFS clarifies that the shoreline of Maryland and Virginia would be exempted landward of the 72 COLREGS lines. This includes using the 72 COLREGS line to exempt Chesapeake Bay. This is a line drawn from Cape Charles Light to Cape Henry Light (Figure 7). In addition, the existing exemption line for Smith Island Inlet will be removed from the exempted waters section of the regulations because the 72 COLREGS line for Chesapeake Bay includes the entrance to this inlet.

The existing exemption lines in the Southeast (North Carolina to Florida) will remain unchanged. However, Captain Sam's Inlet (South Carolina) will be added to the exempted waters section of the regulations because it does not have a 72 COLREGS line.

NMFS believes that the exemption lines contained in this final rule are appropriate in light of the analysis of the most recent sightings data from available sources, and will not create a substantial increase in risk to large whales from fishing gear. NMFS will continue to work in collaboration with state partners to monitor all exemption areas and should new information become available regarding the exemption areas, NMFS will share this information with the ALWTRT to determine if changes to the exemption areas are warranted.

Offshore Exempted Areas

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

Regulatory Language Changes

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

Weak Links

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

clarification. NMFS also clarifies that weak links must be placed on all floatation and/or weighted devices, etc. that are attached to the buoy line, and not just the main buoy. This final rule adds to the regulatory text that weak links must be designed such that the bitter end (the loose end of the line that detaches from the weak link) of the line is clean and free of any knots when the link breaks, and that splices are not considered to be knots for the purposes of this provision. The final rule clarifies that gillnets, traps/pots, anchors, and leadline woven into the buoy line are not considered weighted devices attached to the buoy line. Therefore, under this final rule, when referring to the techniques for meeting the weak link requirements, the wording will read, “All buoys, flotation devices and/or weights (except traps/pots [or gillnets], anchors, and leadline woven into the buoy line), such as surface buoys, high flyers, sub-surface buoys, toggles, window weights, etc. must be attached to the buoy line with a weak link placed as close to each individual buoy, flotation device and/or weight as operationally feasible and that meets the following specifications”.

In a final rule published on January 10, 2002, the use of line

7/16

inch (1.11 cm) in diameter or less for all buoy lines was removed as an option from the ALWTRP's Take Reduction Technology Lists, as the breaking strength of

7/16

inch (1.11 cm) line can vary dramatically (67 FR 1300, January 10, 2002). Therefore, because the diameter of line is not appropriate to use for risk reduction, NMFS will also change the text that describes the list of approved weak links. Specifically, the regulatory text referring to “rope of appropriate diameter” will be changed to “rope of appropriate breaking strength”.

Where the gear modification requirements are referred to, this final rule includes reference to a brochure that describes techniques for complying with these requirements and provide information about how to obtain a copy.

This final rule amends the current regulatory text describing the placement of weak links in the floatline of gillnet net panels. Specifically, the text will be modified to change the requirements for the placement of one weak link in gillnet net panels that are shorter than 50 fathoms (300 ft or 91.4 m). This final rule modifies the requirements in the Mid/South Atlantic Gillnet Waters (for anchored gillnets) and adds requirements for the Other Southeast Gillnet Waters as follows: “Weak links must be placed in the center of the floatline of each gillnet net panel up to and including 50 fathoms (300 ft or 91.4 m), or at least every 25 fathoms (150 ft or 45.7 m) along the floatline for longer panels.” This final rule also amends the requirements for the placement of weak links in the SAM areas and other applicable areas where more than one weak link is required for gillnet net panels of lengths up to and including 50 fathoms, (300 ft or 91.4 m) as well as those greater than 50 fathoms (300 ft or 91.4 m). Additionally, this final rule specifies two configuration options for gillnet net panel weak links for anchored gillnet fisheries in the Northeast (effective April 7, 2008, including SAM areas April 7, 2008, and Mid/South Atlantic (that is not returned to port with the vessel), as well as gillnet fisheries in the Southeast that are not returned to port with the vessel (effective April 7, 2008). See the requirements for anchored gillnets in the

Other Northeast Gillnet Waters

section of this rule for the specifics on these configurations for gillnet net panel weak links. The same configuration option would be required for all gillnet net panels in a string.

Groundlines

This final rule clarifies that fishermen may use sinking and/or neutrally buoyant line for their groundlines and buoy lines. Under this final rule, from January 1 through May 15 fishermen will be allowed to use sinking and/or neutrally buoyant groundlines in the Cape Cod Bay Restricted Area. Similarly, for the SAM gear modifications, this final rule will allow the use of sinking and/or neutrally buoyant groundlines.

Where sinking and/or neutrally buoyant line is required for groundlines, this final rule prohibits the attachment of flotation devices, such as buoys and toggles. This clarifies the prohibition on floating groundlines by expanding the prohibition to the attachment of any devices that cause groundlines to float into the water column, to reduce the risk of entangling large whales.

Other Regulatory Language Changes

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

Gillnet Take Reduction Technology List

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

Anchoring Clarification

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

SAM Clarification

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

Terminology

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

Definitions

The final rule adds definitions to § 229.2 for “bitter end” and “bottom portion of the line.” The “bottom portion of the line” definition is revised to clarify the regulatory requirements for allowing, where applicable, floating line in a section of the buoy line not to exceed one-third the overall length of the buoy line.

The final rule also revises the terms “Lobster trap” and “Lobster trap trawl” to “Trap/pot” and “Trap/pot trawl” to reflect the broader scope of the ALWTRP once the new trap/pot fisheries are included under the management regime. These definitions will apply to the trap/pot fisheries that will be regulated under the ALWTRP.

Prohibitions

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

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

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

In response to requests from the fishing industry and line manufacturers for a clearer definition of neutrally buoyant and sinking line, NMFS has developed criteria for establishing a density standard for neutrally buoyant and sinking line and used these criteria to develop definitions. In addition, NMFS finalizes a procedure for assessing the specific gravity of line, which NMFS will use in the future to determine whether a manufactured line meets the accepted density standard. NMFS' criteria for establishing the density standard and procedure to determine specific gravity of line are included in the FEIS and available to the public upon request (see

ADDRESSES

for contact information).

This final rule amends the definitions of “Neutrally buoyant line” and “Sinking line” and clarifies each definition in relation to groundlines and buoy lines. Under this final rule, neutrally buoyant and sinking line will share the same definition; however, a distinction will be made to clarify that sinking and/or neutrally buoyant groundline could not float in the water column. Therefore, in this final rule, the current definition of “neutrally buoyant line” is amended to mean, “for both groundlines and buoy lines, line that has a specific gravity of 1.030 or greater, and, for groundlines only, does not float at any point in the water column (See also

Sinking line

).” NMFS will keep the “neutrally buoyant” and “sinking line” terms based on industry's comment that these are familiar terms that have been used for a number of years. Accordingly, the current definition of “Sinking line” is amended to mean, “for both groundlines and buoy lines, line that has a specific gravity of 1.030 or greater, and, for groundlines only, does not float at any point in the water column (See also

Neutrally buoyant line

).”

Comments and Responses

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

General Comments

Comment 1:

Some commenters asked for a more balanced representation of stakeholders on the ALWTRT. Specifically, commenters believed that there should be more seats for conservationists on the ALWTRT.

Response:

The ALWTRT is composed of Federal agencies, each coastal state that has fisheries that interact with large whale species or stocks protected under the ALWTRP, Regional Fishery Management Councils, interstate fisheries commissions, academic and scientific organizations, environmental groups, and all commercial fisheries groups and gear types which incidentally take large whale species or stocks. The Marine Mammal Protection Act (MMPA) states that take reduction teams shall, to the maximum extent practicable, consist of an equitable balance among representatives of resource user interests and nonuser interests. The MMPA does not provide a fixed number or percentage for each stakeholder group. NMFS believes that it has an adequate representation of stakeholders including conservationists.

Comment 2:

One commenter suggested that better results would be produced by the ALWTRT if issues were addressed regionally.

Response:

At its 2004 meeting, NMFS provided detailed information on organizational issues specific to the ALWTRT. NMFS presented several options for restructuring the ALWTRT and the pros and cons of each option. One option included a regional component whereby the ALWTRT would split into two regional teams (Northeast and Mid/South Atlantic). However, the ALWTRT did not develop a consensus recommendation on formally dividing the ALWTRT into separate teams by region or other affiliation. Currently, the ALWTRT is continuing to meet as a full team, but NMFS has allocated resources to conduct small scale regional sub-group meetings when necessary. In addition, NMFS has allocated time in its full ALWTRT meetings for smaller groups according to region, gear type, or other affiliation.

Comment 3:

Several comments were received in support of, as well as in opposition to, the proposed elimination of the Lobster Take Reduction Technology List in Northern Inshore waters.

Response:

As proposed, NMFS has eliminated the Lobster Take Reduction Technology List in Northern Inshore waters and other areas. Eliminating the Lobster Take Reduction Technology List in Northern Inshore waters will enable NMFS to utilize broad-based management measures in the Inshore waters. However, NMFS acknowledges that the elimination of the Technology List does not preclude NMFS from using a similar management scheme in the future if warranted.

Comment 4:

Two commenters requested that all information used in formulating proposed alternatives and effectiveness of existing programs be provided to the public. NMFS should develop and implement a statistically reliable methodology for measuring and reporting serious injury and mortality rates of all species of marine mammals, as required by the MMPA.

Response:

In support of the proposed action, NMFS prepared a DEIS. In accordance with the National Environmental Policy Act (NEPA), the DEIS disclosed the purpose and need for the action; a description of the proposed alternatives, including a No Action Alternative; a description of the affected environment; and a description of the environmental consequences of each alternative including any adverse environmental effects that will be unavoidable if the proposed action is implemented. As required by NEPA, NMFS made all of the information and analysis contained in the DEIS available to the public for an 81-day written comment period and conducted 13 public hearings from Maine to Florida to receive oral testimony regarding this action and its supporting information and analysis. All comments received during the public comment period and public hearings were considered in the FEIS and final rule.

NMFS has developed protocols for determining large whale serious injuries and human-caused mortalities. Such information is contained in mortality and serious injury determinations issued by the Northeast Fisheries Science Center (NEFSC). Human-caused mortality and serious injury rates presented in these reports represent the minimum levels of impact to Atlantic large whale stocks from 1999-2003 (Waring

et al.

, 2006). Confirmed human-caused mortalities and serious injury

records from 2000-2004 are also presented in Cole

et al.

(2006). Both reports are available to the public through the NEFSC publications office and can also be located online. NMFS does not attempt to expand data beyond that which was observed, and at this time, there is no reliable methodology that enables NMFS to extrapolate further from this data.

Comment 5:

Two commenters suggested implementing a ghost gear removal program.

Response:

NMFS does not currently have the resources to administer and/or implement such a program. However, NMFS has supported ghost gear removal initiatives in the past through its Right Whale State Cooperative Program, which is administered through its partnership with the National Fish and Wildlife Federation (NFWF), and will continue to consider future support for ghost gear removal through this competitive funding initiative.

Comment 6:

Two commenters suggested that the observer program is not being used to its fullest potential. Specifically, one commenter urged NMFS to prioritize observer coverage for ALWTRP fisheries. The commenter believes this would assist in assessing the effectiveness of gear modifications and seasonal closures.

Response:

Based on the limited observer resources available and the competing needs for observer coverage in many other fisheries, NMFS believes that the observer program is being used to the fullest extent practicable given the resources available and competing observer needs in other fisheries. Although NMFS agrees in principle with the commenter's suggestion that increased observer coverage could assist in assessing the effectiveness of gear modifications and seasonal closures, the NMFS observer program is not intended to be an extension of law enforcement resources. The National Observer Program is intended and designed to collect fisheries dependent physical, biological, and economic data to assist NMFS in making management decisions.

Comment 7:

Many commenters questioned why the Federal Government is making regulations and not individual states. Specifically, some commenters stated that Federal mandates are not going to work for the State of Maine while others stated that there are already state fishery management plans (FMPs) (e.g., the State of Florida's Spanish Mackerel Plan) that impose rules that are more protective of whales than the alternatives proposed by the ALWTRP.

Response:

The MMPA gives NMFS the authority to administer the provisions of the MMPA within state waters. To protect the large whale stocks included under the ALWTRP from serious injury or mortality incidental to commercial fishing interactions, NMFS convenes the ALWTRT to help develop appropriate management actions. The ALWTRT includes each coastal state that has fisheries that interact with large whale species or stocks protected under the ALWTRP. Each state also has industry representatives who serve on the ALWTRT. State officials and state industry representatives have input into the development of regulations within state waters. NMFS considered all comments regarding state fisheries and areas; this final rule modified certain provisions within state waters as a result of these comments.

Comment 8:

One commenter stated concern that more fishermen may fish in the state exempted areas, which would create increased gear concentrations in inshore areas.

Response:

In determining the state exemption lines, NMFS analyzed data from available sources, including data that are more current than the data analyzed for the DEIS. Large whale sightings distribution data from 1960 to mid-September 2005 were obtained from the North Atlantic Right Whale Consortium (NARWC) Sightings Database containing dedicated survey effort and opportunistic sightings data, which is curated by the University of Rhode Island (URI), and supplemented by additional data on humpback and fin whale sightings. In addition, NMFS analyzed large whale sightings data from 2002 through 2006 that were collected through the NEFSC's systematic aerial surveys, as well as through the Northeast U.S. Right Whale Sighting Advisory System (SAS). NMFS also analyzed a right, humpback, and fin whale sightings database compiled by the Maine Department of Marine Resources (Maine DMR), which includes sightings reported by the Maine Marine Patrol, whale watch vessels, etc. Based on this analysis, NMFS believes that the final exemption line will provide large whales with an adequate level of protection. For example, sightings data along the east coast indicated that endangered large whales rarely venture into bays, harbors, and inlets. Therefore, although gear may increase in the state exemption areas, the risk to large whales would be minimal.

Comment 9:

One commenter stated that NMFS should not regulate Rhode Island fishermen the same as Cape Cod Bay fishermen.

Response:

Assuming the commenter is fishing entirely in Rhode Island northern inshore waters and comparing their requirements to fishermen who fish in Cape Cod Bay during the restricted period, there are differences between how Rhode Island and Cape Cod Bay fishermen are being regulated under the ALWTRP. Specifically, the trap/pot gear restrictions and weak link requirement are different for these areas and more restrictive in Cape Cod Bay from January 1-May 15. Also, the provision to prohibit floating groundline does not take effect in Rhode Island until 12 months after publication of the final rule while the floating groundline prohibition is already in effect in Cape Cod Bay for trap/pot fishermen. Regarding gillnet gear, Cape Cod Bay is closed to all gillnet gear during the restricted season while Rhode Island inshore waters may use gillnets provided they comply with the specified gear requirements.

Comment 10:

Numerous commenters believe NMFS should not regulate fishermen in the Mid-Atlantic/Southeast the same as those in New England and believe NMFS should justify new gear requirements in the Mid-Atlantic and provide a rationale of why impacts of new requirements are necessary to achieve the goals of the ALWTRP. The commenters believe that regional management areas should be managed differently for the following reasons: (1) Year-round closures are unnecessary in the Mid-Atlantic area; (2) there are relatively few right whale sightings; (3) there is less gear and fewer fishing vessels; (4) no critical habitat has been designated in the Mid-Atlantic; and (5) there are different regional and seasonal fishing practices in the New England, Mid-Atlantic, and Southeast fisheries.

Response:

The ALWTRP was developed to reduce the level of serious injury and mortality of North Atlantic right, humpback, and fin whales. Although right whales and humpback whales are more common in New England throughout the year, they are also present in the Mid-Atlantic. Further, fin whales are common year-round north of Cape Hatteras. Therefore, NMFS believes all fisheries in these areas should be subject to similar gear modification requirements. However, based on sightings data and comments received on the proposed rule, NMFS chose an alternative that allows seasonal gear restrictions in the Mid-Atlantic as opposed to year round requirements in New England. Further, NMFS allowed small changes to some of these gear modifications to account for how local fisheries operate in the Mid-Atlantic

(see Changes from the Proposed Rule section of the preamble).

Comment 11:

One commenter calls for a set of regional alternatives rather than one national alternative for all East Coast fisheries.

Response:

The alternatives examined in the EIS were the product of extensive outreach conducted by NMFS. NMFS reconvened the ALWTRT on April 28-30, 2003. Proposals from the April 2003 ALWTRT meeting and subsequent subgroup meetings were used to develop an issues and options document, which NMFS made available to the public during the scoping process. The scoping document described the major issues, current management and legal requirements, and potential management measures to address fisheries that may frequently or occasionally interact with large whales. During the summer of 2003, NMFS conducted six public scoping meetings at locations from Maine to Florida along the east coast. Based on this outreach effort NMFS developed a suite of alternatives that best reflected the comments from the ALWTRT and public while at the same time afforded protection to large whales. The alternative ultimately selected by NMFS does include regional measures.

Comment 12:

One commenter believes NMFS needs to look at gear and effort in different areas. The commenter believed that regulations are in place due to problems in Massachusetts, and if that is where the problem is then that is where the regulations should be, not for the entire coast.

Response:

Large whale entanglements are not solely a Massachusetts issue. Atlantic large whales are at risk of becoming entangled in fishing gear because the whales feed, travel, and breed in many of the same ocean areas utilized for commercial fishing. Fishermen typically leave fishing gear, such as gillnets and traps/pots in the water for specific periods of time. While the gear is in the water, whales may become incidentally entangled in the lines and nets that comprise trap/pot and gillnet fishing gear. The number of entanglements for which gear type can be identified is too small to detect any trends in the type of gear involved in lethal entanglements. However, trap/pot and gillnet gear are the most common. NMFS believes that floating groundlines pose the biggest risk for large whales, but acknowledges that any type and part of fixed gear is capable of entangling a whale throughout its entire range. NMFS, in consultation with the ALWTRT, has developed a coast-wide strategy with regional components to address entanglements.

Comment 13:

One commenter asked how many whale entanglements occurred in traps/pots in 2004.

Response:

There were 16 known entanglements that were first reported in 2004. However, for most of these, the actual year of entanglement is not known. Gear was recovered from seven of these entanglements. Of the seven entanglements from which gear was recovered, five were identified to a specific gear type. Trap/pot gear accounted for four entanglements and gillnet gear accounted for one.

Comment 14:

One commenter believed that it is important that NMFS listen to the Maine DMR because they do a good job communicating with fishermen.

Response:

NMFS views all state representatives serving on the ALWTRT as valued partners in making sound management decisions.

Comment 15:

Several commenters believe that fishermen are unlikely to modify their gear for 9 months, and then switch to unmodified gear for 3 months. The commenter believes the economic burden on the industry would be relatively the same as year-round requirements.

Response:

Many commenters asked NMFS to choose seasonal windows based on large whale distribution. Some commenters also supported seasonal requirements due to the occurrence of seasonal fisheries in some areas. However, the economic analysis in Chapter 6 of the EIS assumes that vessel operators that would be subject to seasonal ALWTRP requirements would switch to compliant gear year-round. Therefore, the implications of seasonal requirements are accounted for in the discussion of costs and socioeconomic impacts. Because the difference in costs between seasonal and year-round requirements is low, and the differences in biological impacts is also low, NMFS chose seasonal requirements.

Comment 16:

One commenter believes that gillnets should be prohibited from the Stellwagen Bank National Marine Sanctuary and the number of lobster traps and lines should be limited.

Response:

The regulations implementing the Northeast Multispecies FMP contain a closure provision named the Western Gulf of Maine Closure Area. The closure area encompasses the vast majority of the Stellwagen Bank National Marine Sanctuary. Accordingly, no fishing vessel or person on a fishing vessel may enter, fish in, or be in, and no fishing gear capable of catching NE multispecies, including gillnet gear, may be in, or on board a vessel in, the Western Gulf of Maine Closure Area. The Interstate FMP for American Lobster has also implemented an effort reduction strategy that limits the volume of trap/pot gear targeting lobsters. In addition to the management efforts in specific FMPs, through this final action the ALWTRP is implementing measures that significantly reduce the risk of an entanglement and serious injury and mortality of large whales should an entanglement occur, such as implementing a prohibition on floating groundline for trap/pot and gillnet gear and an increase in the number of break away links in the net panels of gillnet gear. Floating rope between traps/pots, and the gillnets and anchor systems gear serves as the greatest risk to large whale entanglements.

Comment 17:

Some commenters believe that NMFS needs a better international strategy, otherwise Maine fishermen are shouldering the burden of whale conservation. The commenter believes Maine fishermen take on more compliance costs than are necessary, while their counterparts in other industries and in Canada operate free of whale take reduction measures.

Response:

Since the implementation of Canada's Species at Risk Act (SARA), NMFS has established a strong relationship with Canada's Department of Fisheries and Oceans (DFO) regarding right whale management. In recent years, NMFS staff from the Northeast Regional Office and DFO's Maritime Regional Office have met to coordinate on several critical right whale management and science issues. Of particular importance is the development of a collaborative approach to managing both gear and vessel interactions with large whales.

Because of the geographic concentration of the lobster fishery in Maine, it is true that Maine vessels bear a large share of the overall estimated costs of the ALWTRP modifications. However, the social impact analysis suggests that under Alternative 6 Final (Preferred) only a limited subset of smaller vessels are likely to experience costs that represent a large share of fishing revenues. As reviewed in the cumulative effects analysis in the FEIS, fishing gear entanglement and ship strikes are the two largest contributors to human-caused whale mortality. NMFS is currently working on implementing a ship strike strategy that will seek to reduce injuries and mortalities associated with this source. Chapter 9 of the EIS also reviews a variety of measures implemented by the Canadian government. In 2000, DFO, in cooperation with the World Wildlife

Fund Canada, developed Canada's first Right Whale Recovery Plan and recovery implementation team. The recovery plan, which is intended as a “blueprint” for action, includes a number of recommendations related to gear entanglement, whale research, and regulatory and enforcement actions.

Comment 18:

One commenter believes that it is too difficult to determine what gear modifications will save right whales. The commenter believes that there is no one specific gear modification that we can point to and say that it is going to save right whales.

Response:

NMFS agrees that currently there is no one gear modification that can save right whales. NMFS believes that the success of the ALWTRP and right whale conservation depends on a combination of conservation measures designed to reduce entanglements and serious injury and mortality should an entanglement occur. The ALWTRP includes a combination of fishing gear modifications and time/area closures to reduce whale entanglement in commercial fishing gear. The nature of the gear modification requirements varies by location and time of year, maximizing reduction in entanglement risk based on whale distribution and movement. NMFS complements these gear modification requirements with prohibitions on fishing at times and in places where right whale aggregations are greatest, and therefore where entanglement risk may be particularly high.

Comment 19:

One commenter believed fishermen cannot control ship strikes or entanglements with fishing gear that is obviously not from the Northern Nearshore Lobster Waters Area. The commenter believes that Maine fishermen are required to compromise to fix a problem that they are not causing.

Response:

NMFS is addressing vessel interactions with large whales through a separate action (71 FR 36299, June 26, 2006). The number of entanglements for which gear type can be identified is too small to detect any trends in the type of gear involved or the area where the entanglement occurred. However, trap/pot and gillnet gear appears to be the most common gear involved in entanglements. Based on the limited information available on entanglements, NMFS views the entanglement issue as a coast-wide problem rather than solely a “Maine problem”. Consequently, NMFS in consultation with the ALWTRT, has developed a coast-wide strategy with regional components to address entanglements.

Comment 20:

One commenter stated that in Grand Manan Channel, Machias, Seal Islands, and many areas in Down East Maine, fishermen cannot operate under existing requirements (i.e., weak links cannot hold and fishermen are constantly replacing poly balls).

Response:

In developing the appropriate breaking strengths for weak links used by commercial fishermen in this area, NMFS worked closely with the ALWTRT, including commercial fishermen and the state of Maine to develop what it believes is the appropriate breaking strength tolerance for fishermen fishing in this area. Should new information become available that may warrant a change to the weak link tolerances in this area, NMFS will consult with the ALWTRT regarding whether to take a subsequent action.

Comment 21:

One commenter believes that environmentalists are pushing NMFS to over-regulate and that fishermen are being put out of business everyday.

Response:

Federal regulations are not based on pressure from environmentalists. The purpose of the revisions to the ALWTRP is to provide additional conservation and protection to Atlantic large whales. Such revisions would fulfill NMFS' obligations under the ESA and the MMPA. The need for the revisions in this final rule is demonstrated by the continuing risk of serious injury and mortality of Atlantic large whales due to entanglement in commercial fishing gear.

Comment 22:

Many commenters believed that the DEIS is not adequate for the following reasons: (1) It failed to follow NEPA requirements; (2) it disregarded certain comments provided during the scoping process; and (3) it lacked an assessment of the biological benefits to large whales that are likely to occur as a result of implementing these modifications to the ALWTRP.

Response:

The DEIS complies with all applicable requirements of NEPA and contains, among other analyses, complete assessments of the biological, social, economic, and cumulative impacts associated with this action. In addition, the DEIS summarizes and integrates the biological, economic and social impacts analyses allowing for a broad assessment of the relative merits of the regulatory alternatives considered by NMFS. The DEIS also contains a discussion of the alternatives considered but rejected by NMFS. The DEIS summarizes various approaches and briefly explains why NMFS chose not to integrate the approach into the regulatory alternatives under consideration by NMFS. However, based on public comment, some of the discussions regarding why some of the approaches were not adopted by NMFS was expanded upon in the FEIS to better articulate NMFS' rationale.

Comment 23:

One commenter stated that the DEIS fails to discuss the ethical values of whales and the marine environment, which deserve protection from human interference and threats. The commenter believed that DEIS Chapter 7 in particular discusses social impact on fishermen's quality of life, but shows no contrasting view of spiritual and intellectual enjoyment of whales.

Response:

Under NEPA, a Federal agency is not required to consider non-physical effects such as psychological effects or moral and ethical values caused by or in anticipation of a proposed action. Nonetheless, the analysis contained in the DEIS does discuss passive uses as raised by the commenter. The DEIS discusses passive use in Chapter 10, the regulatory impact review section. Chapter 7 of the DEIS also discusses “passive uses” and provides a table of passive use studies related to marine mammals. Language has been added to the FEIS to clarify that non-use values such as those measured in these studies are closely related to the “spiritual” or “ethical” values emphasized by the commenter.

Comment 24:

One commenter supported continued disentanglement efforts, such as floating forklifts, hydraulic slings between two boats, and an inflatable blanket to keep a subdued whale afloat.

Response:

NMFS appreciates the support for continued disentanglement efforts. NMFS recently convened a third workshop in a series, which included marine animal experts from numerous disciplines including, veterinarian sciences, disentanglement experts, anesthesiology, marine mammal behaviorists, etc. to discuss these suggested approaches as well as many other options to ascertain which had the most merit for investigating further versus which were too cost prohibitive and logistically impractical. NMFS reiterates that disentanglement is only a temporary “band-aid” approach and that the solution that all involved parties are striving for is to prevent entanglement and reduce serious injury and mortality, if an entanglement occurs.

Comment 25:

Two commenters believed NMFS did not address minke whales in the EIS. One commenter said that the ALWTRP currently does not consider minke whales, yet the State of Maine actively trained and equipped fishermen to disentangle minke whales

in state waters. The commenter believes that for the State of Maine to go to such lengths indicates that these protected species do become entangled at a significant rate and that those whales should be considered under the plan.

Response:

The ALWTRP is designed to protect right whales, humpback whales, and fin whales. Right, humpback, and fin whales are strategic stocks because they are listed as endangered under the ESA. Therefore, because these strategic stocks interact with Category I and II fisheries, under the MMPA, the ALWTRP was established to assist in the recovery of these large whale species. Minke whales are neither listed as endangered or threatened under the ESA, nor do they have high incidental mortalities relative to population abundance. Therefore, minke whales are not considered a strategic stock and are not included within the ALWTRP. However, the ALWTRP does provide ancillary benefits to the minke whale. The minke disentanglement program is a component of the Maine's Large Whale Conservation Program whereby only a few commercial fishermen are trained and authorized to respond to entangled minke whales. The program was not developed because of increased takes of minke whales within state waters.

Comment 26:

Several commenters expressed concern for minke whale regulations under the ALWTRP. One commenter believes the potential biological removal (PBR) for minke whales may be exceeded based on the fact that half of the whales stranded between Maine and Virginia (2002-2004) showed signs of fishery interactions. Another commenter requested that the minke whale stock be considered “strategic” under the ALWTRP and for NMFS to continue current take reduction measures for the species. The commenter stated that the status of minke whales in Atlantic waters is poorly known with more fishery interactions occurring than that which is reported. The commenter states that minke whales are found dead 2 and a half times more than all other species combined. Another commenter stated that the Large Whale Entanglement Report suggests high entanglement-related mortality. Two commenters stated that minke whale carcasses may be less likely to float after death, thus underestimating serious injury and mortality.

Response:

Stranding data alone do not provide a reliable base to estimate PBR and currently, there is no accurate method to extrapolate further from stranding data. Minke whales are neither listed as endangered or threatened under the ESA, nor do they have high incidental mortalities relative to population abundance. Therefore, minke whales are not considered strategic and are not included within the ALWTRP. However, the species will still benefit from ALWTRP regulations, see responses to Comments 4, 25, and 299. It should be noted that minke whales are the most common species of baleen whales found in western North Atlantic waters; estimates suggest that there may be four times as many minke whales in these waters as there are humpback whales. High overall minke whale abundance may account for the high incidence of carcass recovery. Also, there is no current data to either suggest or support that minke whales are less likely to float after death when compared to other large whale species such as humpback and fin whales.

Comment 27:

Numerous commenters believed there was a lack of discussion in the EIS regarding how these measures will be enforced. One commenter further encouraged NMFS to make monitoring and enforcement plans a formal part of a take reduction plan.

Response:

At its April 2003 meeting, the ALWTRT recommended that NMFS establish a Compliance Committee to discuss issues such as evaluating, monitoring, and improving ALWTRP compliance. The plan development includes working through the Atlantic States Marine Fisheries Commission (ASMFC) and Joint Enforcement Agreement (JEA) contacts and involves stakeholder groups on the ALWTRT. NMFS has made some progress regarding this issue, particularly with NMFS and state enforcement offices through the JEA process. However, NMFS acknowledges more work is needed in this area. At its 2004 and 2005 meetings, the ALWTRT also discussed separating monitoring issues from the Compliance Committee and addressing these through a Status Report Subcommittee. The discussion focused on the interpretations of the annual right whale and humpback whale scarification analysis. Specifically, the ALWTRT discussed whether the scarification analysis was the best method for evaluating the ALWTRP. NMFS has and intends to continue these discussions with the ALWTRT.

Comment 28:

One commenter asked why vertical lines were not addressed in the DEIS. One commenter believed that the key elements of a vertical line strategy could have been articulated in the DEIS without committing at this time to specific alternatives.

Response:

The proposed changes to the ALWTRP include some gear modifications to vertical line and the DEIS includes a discussion of vertical lines. Specifically, the DEIS notes that further risk reduction to address risk associated with vertical line will occur through a future rulemaking action due to the need for additional information and discussions to develop comprehensive and effective management measures. NMFS and its partners (e.g., scientific, state, and industry) are currently researching ways to reduce risk associated with vertical line. NMFS and its partners are also investigating how whales utilize the water column, including their foraging ecology and diving behavior, which will help to determine appropriate mitigation strategies to reduce entanglement risk of vertical line. NMFS has developed a list of potential management options to reduce risk associated with vertical line that was provided to the ALWTRT at its 2005 and 2006 meetings. NMFS discussed these options with the ALWTRT during the 2006 meeting and intends to further discuss these at the next meeting.

Comment 29:

One commenter stated that the agency is balancing the desires of the industry with the needs of conservation and the commenter states this is not appropriate. The commenter says that the ESA is quite clear that the needs of the species outweigh economic impact. The commenter prefers NMFS to require the institution of the more risk-averse groundline profile immediately. It should be coast-wide and year-round, because whales do wander.

Response:

NMFS believes it is implementing the appropriate measures to reduce risk associated with groundlines, amongst other risk reduction measures, as quickly as is feasible and consistent with the requirements of the ESA. NMFS believes a phase-in period is warranted to enable fishermen to rig their gear with sinking and/or neutrally buoyant groundline, but believes fishermen will be continually converting their gear before the effective date, which will result in risk-reduction to large whales. Additionally, NMFS believes that the coast-wide management approach, with year-round requirements in the northeast, and seasonal requirements in the mid and south Atlantic, is risk-averse. Although whales may be present outside a seasonal window, the sightings are rare and the risk of gear to large whales at these times of the year is minimal. However, NMFS will continue to monitor the areas where seasonal requirements are in effect. Should new information become available that indicates that a change in

seasonal window is warranted, NMFS will share the information with the ALWTRT and take appropriate action.

Comment 30:

Several commenters believe NMFS failed to hold hearings in jurisdictions or locations where groups other than the industry could be heard. One commenter requested that the public comment period on the DEIS be extended even further, or a supplemental EIS be issued with additional hearings held in metropolitan areas so interested public, advocacy groups, and the scientific community can take part.

Response:

NEPA provides opportunities for public involvement at various stages of the environmental review process. NMFS held scoping meetings and public hearings on the DEIS from Maine to Florida. NMFS chose areas and locations that were most affected by the action. NMFS also solicited public comment through three open comment periods where comments could be submitted to NMFS in writing. NMFS provided an opportunity for the public to comment during the publication of its Notice of Intent (NOI) to prepare a DEIS (68 FR 38676, June 30, 2003), the notice of availability for the DEIS (70 FR 9306, February 25, 2005), and the proposed rule (70 FR 35894, June 21, 2005). The public comment period of the DEIS was originally 45 days, but was extended to 81 days (70 FR 15315, March 25, 2005) while the public comment period on the proposed rule was extended from 31 to 63 days (70 FR 40301, July 13, 2005). A summary of all scoping comments and copies of all written DEIS comments received by NMFS are found in the FEIS. NMFS believes that it has selected appropriate areas for its public hearings and provided adequate opportunity for public comment.

Comment 31:

One commenter recommended NMFS prepare a supplemental DEIS to consider alternate time/area fishing closures in areas where right whales and other large whales congregate, such as critical habitat. Another commenter recommended that NMFS develop a supplemental DEIS to discuss available information on the frequency of vertical line entanglements that involved weak links. The commenter believes that results of this analysis should be used to estimate whether, and to what extent, weak links will reduce the number of entanglements under each alternative.

Response:

NMFS believes that the DEIS represents a comprehensive suite of alternatives to amend the ALWTRP as well as a thorough analysis of the impacts of the proposed alternatives on the human environment. NMFS worked with the ALWTRT to help evaluate the ALWTRP and discuss additional modifications necessary to meet the goals of the MMPA and ESA. NMFS also solicited input from the public after issuing a Notice of Intent to prepare an EIS. Although there were no consensus recommendations from the ALWTRT or consistent proposals from the public, NMFS believes that it has developed the best options available for amending the ALWTRP. NMFS did consider seasonal closures to prohibit lobster trap/pot and gillnet fishing in all designated right whale critical habitats during times when whales are known to congregate in those areas. This discussion is included in the DEIS summary of written scoping comments received. This comment is reflected in the section of the DEIS that lists the alternatives considered and rationale for rejection, as well as in the section that describes the alternatives considered. In the FEIS, NMFS included additional language to clarify that this comment was considered. NMFS has analyzed all entanglements including those that involve weak links. Although weak links are one gear modification that is included in the current ALWTRP, as well as a component of the broad-based gear modifications in the DEIS, NMFS is not relying solely on this modification. There is no evidence to suggest that weak links are ineffective. NMFS believes weak links, in combination with other mitigation measures, serve as a valuable conservation tool.

Comment 32:

One commenter stated that the Southern monkfish area is not overfished and is not deemed overfished and this should be fixed in the DEIS.

Response:

Monkfish has been determined by NMFS to not be overfished in both the northern and southern areas from 2003 through 2005. The NEFSC held a monkfish stock assessment workshop in the fall of 2004 (SAW 40). The data used in the 2004 assessment included NEFSC research survey data, data from the 2001 and 2004 Cooperative Monkfish Surveys, commercial fishery data from vessel trip reports, dealer landings records, and observer data. The Stock Assessment Review Committee concluded that the resource is not overfished in either stock management area (north or south). Chapter 4 of the EIS discusses the status of affected fisheries and does not indicate that monkfish are overfished. Therefore, NMFS agrees with the comment that monkfish is not overfished in the southern area as of December 31, 2005. NMFS has changed the FEIS to reflect this, but has noted that new information (New England Fishery Management Council (NEFMC and NEFSC 2006 Monkfish Monitoring Report)) finds that monkfish are now overfished in both the northern and southern areas. In the monkfish Management History section of Chapter 9 of the EIS, the discussion has been updated to reflect the latest assessment of the fishery's status.

Comment 33:

One commenter states ship strike mortalities are not covered in the DEIS.

Response:

Section 118 of the MMPA requires that take reduction teams address serious injuries and mortalities of marine mammals that interact with commercial fishing operations. The DEIS is focused on serious injuries and mortalities of large whales that result from entanglements in commercial fishing gear. However, NMFS did consider ship strike mortality as part of the cumulative effects analysis in Chapter 9 of the DEIS.

Comment 34:

One commenter wants NMFS to consider the importance of the DEIS as NMFS balances the survival of right whales against development and commercial interests that can be modified while still profitable. The commenter believes that development and commercial interests can be done in an environmentally friendly and commercially viable way. The commenter also believes that it is the North Atlantic right whale that may not survive without NMFS' strong protection.

Response:

NMFS acknowledges the commenter and believes that the DEIS represents a comprehensive suite of alternatives that has thoroughly analyzed the impacts of the proposed alternatives on the human environment and large whales, including right whales, as well as other marine mammal species.

Comment 35:

One commenter states that Exhibit 6-6 identifies potential sources of increased gear loss, but there was no specific analysis for gear loss in rocky/tidal habitats. Further, there is no analysis for the concept of low profile groundline in the potential reduction of gear loss rates. The commenter states that Exhibit 6-8 states the estimated change in annual gear loss for Maine inshore waters in Alternatives 2-4 and 6 will increase by 10-percent; the commenter states that anecdotal information says this is a very low estimation.

Response:

As noted in Exhibit 6-6, the EIS acknowledges that gear loss may be higher in certain waters such as rocky bottom areas. Consequently, the analysis of changes in gear loss rates separately examines Maine's inshore fishery and applies the higher rate of 10 percent. This value represents an

estimate of the typical change in gear loss rates for Maine inshore waters; NMFS acknowledges that some fishermen will likely experience higher rates while others will likely experience lower rates.

NMFS and its partners are actively researching the use of low profile line in rocky/tidal habitats to minimize gear loss; however, additional research is required before NMFS can determine whether use of this gear is feasible. See response to Comment 128.

Comment 36:

One commenter believes that Exhibit 6C-1 does not seem to account for the useful life of sinking line in rocky/tidal habitats.

Response:

The analysis assumes that the useful life of sinking and/or neutrally buoyant line will be lower, on average, than the useful life of floating line. This assumption is based in large part on recognition that the line is more susceptible to chafing, particularly in rocky or heavy tide habitats. Adjusting estimates of the line's useful life to take local conditions into account would introduce a level of detail into the analysis that is infeasible as it would be impossible to test in all locations where groundline could be used.

Comment 37:

One commenter believed that the ESA is relatively blind to costs of the reasonable and prudent alternatives of a biological opinion if the species is in jeopardy.

Response:

Regulations implementing section 7 of the ESA define the criteria for reasonable and prudent alternatives (RPA). RPAs must be technologically and economically feasible. The ALWTRP is promulgated under the MMPA. Pursuant to NEPA, NMFS analyzed the social, biological, and economic impacts of the various ALWTRP alternatives on the human environment.

Comment 38:

One commenter suggested developing a new approach to eliminate all takes, such as real-time right whale tracking, improved reporting of location and amount of gear in the water, mandatory gear marking, and effective area closures for trap/pot and gillnet gear.

Response:

The ALWTRT has discussed many of the commenter's concepts in the past. Several of the commenter's ideas are currently being pursued by NMFS and the ALWTRT. However, a couple of these concepts need further development. In particular, real-time right whale tracking has several limitations both from a technical and legal standpoint. Monitoring the location and volume of gear in the water is also very challenging. Nonetheless, these ideas have some merit and NMFS will continue to discuss these issues with the ALWTRT.

Comment 39:

A few commenters believed that there are generally no whales beyond 4-6 miles (7.4-11.1 km) offshore, so the eastern edge of the ALWTRP line off of Florida should not be extended to the Exclusive Economic Zone (EEZ). Another commenter said that fisheries in the Southeast occur greater than 3 nautical miles (5.6 km) from shore, but most whales are inside of 3 nautical miles (5.6 km) and in temperatures greater than 70 °F (21.1 °C) where most fisheries do not occur.

Response:

Habitat models based upon the aerial survey data collected off the southeast suggest a strong relationship between the spatial distribution of calving right whales, water temperature, and bathymetry. In particular, calving right whales were strongly correlated with water temperatures between 55.4-59 °F (13-15 °C) and water depths 49.2-65.6 ft (15-20 m) (Keller

et al.

, 2006; NMFS unpublished, 2006). However, southeast spatial distributions and habitat correlations for non-calving right whales (e.g., females without calves) and other large whale species remain unclear at this time. Sightings data from the North Atlantic Right Whale Sightings Database suggest that right whales, and other large whale species, do occupy waters greater than 3 nautical miles (5.6 km) from shore. However, given the lack of offshore survey effort in this region, it is possible that there are more large whales in this area than reflected in the database. Thus, NMFS has extended management measures out to the eastern edge of the EEZ to protect any large whales in this area, but also to remain consistent with management areas extending to the EEZ in Mid-Atlantic and Northeast waters.

Comment 40:

One commenter said that there is little effort in the shark gillnet fishery in the Southeast and this should be acknowledged.

Response:

NMFS acknowledges that gillnetting effort in the Southeast does not meet or exceed gillnetting levels in the Mid-Atlantic or Northeast.

Comment 41:

NMFS received many comments supporting year-round, coast-wide gear modifications. Comments supporting this idea included the following rationale: (1) Right whales and humpback whales have been seen as far south as the Carolinas or even farther south all year long (e.g., humpback whales documented feeding off North Carolina in June 2004); (2) fin whales have been documented in the Mid-Atlantic from January through March; (3) seasonal exemptions seem linked to survey effort (i.e., there is little winter/early spring survey effort in southern areas); (4) documented sightings of large endangered whales off New Jersey (within 20 mile (37.0 km) radius of Cape May) in summer; (5) stranding/ship strike data show whales using waters south of Rhode Island in summer; (6) Mate data (Mate

et al.

, 1997) show right whale mother/calf off New Jersey in August of 1997; (7) humpback whale strandings in Virginia and North Carolina have been recorded in summer; and (8) large whale movements are unpredictable (e.g., Kingfisher went from the southeast to New England and back again in a few weeks), therefore, NMFS should consider updated satellite tracking information (Baumgartner and Mate, 2005). One commenter questioned the sighting effort for right and humpback whales in the Mid-Atlantic during the late spring/summer and suggested increased effort in this area; in the interim, the commenter supported year-round requirements in the Mid-Atlantic.

Response:

NMFS has based its regulations on the best available data and has considered and incorporated all sources of available data (e.g., satellite tracking papers) into this final rule and the FEIS. NMFS recognizes that animals occur in Mid-Atlantic waters outside seasonal management periods, however, sightings referred to in the above comments are not typical of the known ecology of large whales. Expanding seasonal measures to year-round, coast-wide modifications would only offer minimal risk reduction for large whales in comparison.

Comment 42:

One commenter stated that whale watch boats operate in the Mid-Atlantic from April 1 through November 30. The commenter believes that if the numbers of whales were expected to be low from May 31 through September 1, whale watch boats would not operate during this time.

Response:

Many Mid-Atlantic whale watching operations conduct tours for dolphins and other cetacean species. However, NMFS currently does not possess data on where such vessels are traveling or what type of marine mammals they are observing. Data that are available to NMFS at this time show a low sightings record of large whales in the Mid-Atlantic from June 1 through August 31. NMFS is not opposed to receiving new information on large whales in this area and would welcome sightings and effort data from Mid-Atlantic whale watching vessels.

Comment 43:

One commenter said that he takes sea-sampling observers out everyday and is willing to take someone with him if it would help determine if whales are there.

Response:

NMFS appreciates the support and assistance being offered by this commenter. Sea-sampling observers do collect large whale sightings data, however, this is one of many data collection responsibilities. If a right whale is sighted, the sighting is entered directly into the SAS Right Whale Reporting System. However, broad-scale surveys are the best source of information on the spatial and temporal distribution of large whales.

Comment 44:

One commenter said that humpback whales can be consistently found in the Gulf of Maine during a longer period (April-December) than indicated in the DEIS. The commenter also believed that data presented were obtained by analysis of a right whale sightings database with opportunistic data for other large whale species. The commenter said that humpback whales have different ecological characteristics than right whales and do not use the same feeding habitats concurrently. The commenter believed that opportunistic sightings data may not paint a representative picture of the spatial and temporal distribution of humpback whales.

Response:

NMFS has modified the FEIS to reflect this comment. However, NMFS did not analyze only opportunistic sightings data when analyzing the distribution of other large whale species. Systemic sightings data (e.g., NMFS survey data), are incorporated into the NARWC Database (curated by URI). These aerial and vessel surveys are conducted throughout the Atlantic coast, and although many surveys are focused on right whale documentation, many other surveys are conducted to sight and record the location of other large whale species or marine mammals.

Comment 45:

One commenter believes whales that get entangled are sick, which inhibits their ability to navigate around gear. The commenter further believes whales get entangled in ghost gear (e.g., trailing lines and refuse).

Response:

Currently there is no data to support this hypothesis. Scarification analyses indicate a large percentage of whales interact with fishing gear, with most surviving these encounters. Also, at this time, NMFS cannot state conclusively that whales are becoming entangled in ghost gear.

Comment 46:

One commenter wanted to know if the economics and technological feasibility of implementation had been considered.

Response:

The specific meaning of the “economics and technological feasibility of implementation” is unclear. The commenter may refer to the public sector cost of administering and enforcing the proposed rules; such an analysis is not required in an EIS. Alternatively, the commenter may be referring to the economic impact of the proposed alternatives on the fishing industry, a subject addressed extensively in the EIS. Chapter 6 estimates per-vessel and industry-wide incremental costs for affected fisheries. Chapter 7 considers the socioeconomic impact of the alternatives, i.e., what geographic areas are most affected and will the regulations affect the economic viability of fishing operations. Furthermore, the regulatory flexibility analysis (Chapter 11) focuses on the implications of the rules for small business.

General Comments on Proposed Alternatives

Comment 47:

NMFS received many comments stating that none of the proposed alternatives would sufficiently protect large whales for several reasons that include: (1) The proposed regulations will not achieve PBR; (2) the proposed actions may not achieve the goals of the MMPA; and (3) proposed regulations need to be strengthened, as it is NMFS' mandate under the ESA.

Response:

NMFS disagrees with the commenters' assessment that none of the proposed alternatives would sufficiently protect large whales. NMFS believes that the EIS represents a comprehensive suite of alternatives to amend the ALWTRP as well as a thorough analysis of the impacts of the proposed alternatives on the human environment. NMFS worked with the ALWTRT to help evaluate the ALWTRP and discuss additional modifications necessary to meet the goals of the MMPA and ESA.

Comment 48:

Numerous commenters stated that more time is needed to evaluate whether the current plan is working. Many believed that other ALWTRP measures (i.e., weak links, critical habitat closures, buoy modifications, and limited time-area closures) should be properly evaluated to determine their effectiveness before implementing a prohibition on floating groundlines.

Response:

Since right, humpback, and fin whales are listed as endangered species under the ESA, they are considered strategic stocks under the MMPA. In response to its obligations under the MMPA, NMFS established the ALWTRT to develop a plan for reducing the incidental take of large whales in commercial fisheries to below the PBR. PBR for right whales is set at zero. Consequently, if any right whale is entangled in commercial fishing gear that has been determined to be from the sink gillnet or pot/trap gear, NMFS must take additional action to protect right whales. Evaluation of implementation and effectiveness of existing measures is ongoing; however, since serious injury and mortality of large whales in commercial fisheries exceeds PBR, NMFS needs to take additional action in response to its requirements under the MMPA.

Comment 49:

Some commenters stated that until research shows how, when, and where whales become entangled in fishing gear, none of the alternatives should be implemented. One commenter believes research is needed regarding where and when whales are most at risk. Otherwise, the commenter believes a new management plan may be ineffective to protect whales, while also causing economic hardship to fishermen. The commenter believes new rules must be based on the most recent data and build in flexibility to generate new data for consideration.

Response:

The FEIS notes that entanglements of large whales are still occurring in sink gillnet and trap/pot gear and highlights the legal mandates of the MMPA and ESA that NMFS is required to follow. Based on the continued serious injury and mortality of large whales due to entanglement in these gear types, NMFS must take action to provide more protection to large whales. Although NMFS acknowledges a need for more scientific information, NMFS is required to take action based on the best information that is available when developing the EIS. As new information becomes available regarding large whales, entanglements, or commercial fishing gear modifications, NMFS will share this information with the ALWTRT to determine if additional changes to the ALWTRP are warranted.

Comment 50:

Several commenters urged NMFS to develop whale rules with as much flexibility as possible, allowing for innovations to be implemented as they are developed. One commenter believes that as NMFS constructs the final rule for this Plan, the agency should adopt a flexible and adaptive approach, and continue refining the regulations on a region-by-region basis. The commenter also believes that, considering our limited understanding of large whale ecology across diverse habitats, as well as the variability among the dozens of different fixed gear fisheries along the Atlantic seaboard, the Plan must be flexible and responsive to changing ecological and economic conditions over time.

Response:

NMFS acknowledges this very important comment and will continue to work with the ALWTRT and

with its legal mandates and requirements to help facilitate better flexibility within the ALWTRP regulations. NMFS has developed and implemented flexible regulations in the past, but learned that the mandates and requirements that NMFS must follow limited NMFS' flexibility and ability to react quickly. In addition, in many instances, NMFS is also limited by the lack of information available to implement flexible regulations. NMFS will continue to explore the concept of flexible rulemaking with the ALWTRT.

Comment 51:

One commenter stated that the 2001 biological opinions on the American Lobster, Multispecies, Spiny Dogfish, and Monkfish FMPs make clear that unless the agency identifies an alternative that would eliminate entanglement and ship strikes, the alternative is unlawful.

Response:

The 2001 Biological Opinion included an RPA composed of several measures that were subsequently incorporated into the ALWTRP. The Biological Opinion also included criteria to monitor the RPA's effectiveness. The RPA and monitoring criteria are based solely on right whale entanglements with commercial fishing gear, not ship strikes. Ship strikes are evaluated through a separate action in support of the implementation of the national right whale ship strike strategy. At that time, the 2001 Biological Opinion concluded that the RPA was sufficient to allow the commercial lobster trap/pot fishery to continue. However, since that time NMFS has reinitiated consultation on the continued implementation of the American lobster fishery in federal waters based on new information on the effects of the fishery on right whales. This consultation is ongoing. NMFS will consider changes to the ALWTRP during consultation on the American lobster fishery.

Comment 52:

One commenter asked how many lethal takes are expected to occur under the status quo and how many lethal takes are expected to occur under each alternative.

Response:

NMFS cannot predict how many lethal takes are expected to occur under each alternative. The evaluation of the impact of regulatory changes on whale entanglement risks is largely qualitative. This approach is necessary because models that would enable NMFS to conduct a rigorous quantitative assessment of such risks do not exist. The known threat that commercial fishing poses to large whales is the risk of incidental entanglement in commercial fishing gear. The regulatory changes under consideration are designed to reduce harm to large whales by reducing the likelihood of entanglement and/or reducing the severity of an entanglement should one occur. NMFS seeks to achieve these objectives through a combination of two general measures: (1) Gear modification requirements; and (2) restrictions on fishing activity at specified locations and times. Chapter 5 of the EIS examines the impact of these measures on whale entanglement risks.

Comment 53:

Several commenters disagreed with NMFS' conclusion that gear modifications were necessary for tended and/or actively fished net fisheries.

Response:

NMFS specifically requested public comment on whether gear modifications were warranted for gear that is tended and/or actively fished. NMFS is not implementing the proposed weak link requirement for tended driftnet gear at this time due to potential safety issues that were raised. Thus, NMFS believes further research on this fishery, and specifically testing weak links in drift gillnet gear, is needed before weak links should be required.

Comment 54:

One commenter suggested the alternatives should be harmonized with other federal mammal protection plans (e.g., the bottlenose dolphin protection plan) to prevent the possibility of creating several plans each with their own unique requirements.

Response:

Chapter 9 of the EIS includes a cumulative effects analysis that examined the impacts of this action in conjunction with other factors that affect the physical, biological, and socioeconomic resource components of the affected environment. The purpose of the cumulative effects analysis is to ensure that Federal decisions consider the full range of an action's consequences, incorporating this information into the planning process. The cumulative effects analysis studies the impacts of the regulatory alternatives to other federal marine mammal take reduction plans and fisheries management plans within the context of other past, present, and reasonably foreseeable future actions.

Comment 55:

Several commenters believed that the proposed rule should not apply to Florida gillnet fisheries for several reasons: (1) Some non-shark fisheries currently use rope that has a breaking point of 800 lb (362.9 kg), well below the 1,100-lb (499.0-g) weak link breaking point indicated in the take reduction plan; (2) night fishing is allowed only if strike nets are deployed (strike nets are set in a circle and sink two to five feet (0.6 to 1.5 m) below water; the net is then retrieved); (3) anchored gillnets are not used by Florida fisheries; (4) sinking or neutrally buoyant line is already used on buoys; and (5) gillnets are always tended (i.e., within eyesight of fishermen).

Response:

NMFS acknowledges that some gillnet fisheries conducted off the coast of Florida may already use gear that is more restrictive than that gear proposed in the EIS. However, NMFS believes that there are several new and emerging fisheries that do not prescribe to the gear requirements noted by the commenter. This final rule will regulate several new fisheries under the ALWTRP through the Category I and II annual list of fisheries process implemented under the MMPA. The final rule provides protection to large whales from these new and emerging fisheries and, at the same time, ensures that the current fisheries have an established baseline for large whale protection.

Comment 56:

One commenter supports the implementation of a pre-1997 status quo.

Response:

A pre-1997 status quo option was not analyzed in the DEIS. Section 118 of the MMPA requires that NMFS reduce bycatch of strategic marine mammal stocks incidentally taken during commercial fishing operations. The level of documented serious injury and mortality of right, humpback, and fin whales due to entanglement in fishing gear required NMFS to convene a take reduction team and develop a take reduction plan to protect these whales. This final rule implements modifications to the ALWTRP, which are necessary because NMFS has evidence that serious injury and mortality in commercial fishing gear is still occurring at unsustainable levels.

Comments Specific to Each Alternative

Comment 57:

NMFS received numerous comments in support of Alternative 1. Commenters believed NMFS has not provided data to show there is a problem that warrants amending the current ALWTRP. Other commenters thought existing regulations have not been given enough time to work. One commenter also said that economically, in today's dollars, it would probably cost $8,000 to replace groundline as proposed in the other alternatives, and the way that the material is increasing in price, costs could be greater than $10,000 by 2008.

Response:

NEPA requires NMFS to analyze a no action alternative (Alternative 1). NMFS did not choose to finalize this alternative because it does not adequately protect large whales, and therefore, does not satisfy the

requirements of the MMPA or ESA. Due to the endangered status of the North Atlantic right whale population, and the insufficiency of existing measures in addressing right whale mortality, there is a need to further reduce serious injury and mortality. NMFS has determined that the additional regulatory measures included in this action are necessary to meet the objectives of the ESA and the MMPA. The ESA requires that NMFS ensure that activities it authorizes, including commercial fishing, do not jeopardize the continued existence of endangered and threatened species. The MMPA provides that the immediate goal of a take reduction plan is to reduce incidental mortality and serious injury of marine mammals taken in the course of commercial fishing to levels less than the PBR level and the long-term goal is to reduce such incidental mortality and serious injury to insignificant levels approaching a zero rate. These regulatory changes are necessary to attain these goals.

The costs associated with converting to sinking and/or neutrally buoyant groundline will vary by vessel, depending on the quantity of gear fished. The $8,000 to $10,000 range specified by the commenter may be valid for certain vessels. In the FEIS, gear replacement costs have been revised to incorporate up-to-date data on key inputs such as groundline. Chapter 7 of the EIS identifies vessel segments that may be heavily impacted by comparing average vessel revenues with compliance costs. The analysis suggests that under Alternative 6 Final (Preferred), a limited number of small vessels are most at risk. Although costs are high for some vessels, NMFS made modifications to the final rule, based on public comment, to decrease costs where possible while still meeting its goals under the MMPA and ESA (see

Changes from the Proposed Rule

section of the preamble). While these vessels may still realize high costs relative to revenues, fishermen have some options to try to mitigate the costs. For example, the impacts of converting to sinking and/or neutrally buoyant groundline may be defrayed, in part, by current and future groundline buyback programs operated by NMFS and other partners. In addition, although the requirements under Alternative 6 Final (Preferred) may impose significant costs within the first year after publication of the final rule (to convert all groundline to sinking and/or neutrally buoyant groundline), fishermen may be able to distribute the cost of the new gear over its useful life by seeking a loan. After the first year, ongoing costs would be significantly lower as fishermen would only need to replace worn-out and lost gear.

Comment 58:

NMFS received a comment opposing Alternative 1.

Response:

NMFS agrees with the commenter (see response to Comment 57).

Comment 59:

One commenter supports Alternative 1 until the shipping industry and Navy have been regulated so their take is considerably less than it is now.

Response:

NMFS recognizes that other marine resource users such as the shipping industry and the U.S. military are impacting large whale species, and NMFS is simultaneously pursuing various regulatory and non-regulatory means of addressing the ship strike issue (see response to Comment 279). However, serious injury and mortality to large whales due to entanglement continues to occur under the current regulations, and as such, NMFS must continue to address the impact by modifying the ALWTRP as appropriate.

Comment 60:

Numerous commenters expressed support for Alternative 2 stating that it is the only option that truly affords large whales protection from the risk of entanglement.

Response:

Alternative 2 is the most conservative, risk-averse approach to the protection of endangered whales because it would require year-round use of low-risk gear along the entire Atlantic coast. However, based on the available sighting information the potential for entanglement of whales in the Mid-Atlantic or South Atlantic waters during summer months is minor. Therefore, the year-round requirements provided in Alternative 2 would likely offer a minimal risk reduction benefit relative to NMFS' preferred alternative, Alternative 6 Final, which incorporates seasonal requirements based on sightings data documenting the movements of large whales.

Comment 61:

NMFS received several comments objecting to Alternative 2. In addition, one commenter proposed specific changes to Alternative 2 regarding the number of traps per trawl in specified areas.

Response:

NMFS agrees with the commenters (see response to Comment 60). NMFS has reverted back to the status quo for the number of traps per trawl in specified areas.

Comment 62:

Several commenters expressed support for Alternative 3. One commenter supported the alternative because it incorporates seasonal components. Another commenter would only support Alternative 3 if the Mid-Atlantic northern boundary was moved to the southern border of Delaware, in order to better protect whale habitat. Conversely, NMFS received many comments objecting to Alternative 3. One commenter believed its requirements may cause effort to shift into exempted areas. The commenter believes the line drawn from Watch Hill Point, RI (41°18.2′ N. lat. and 71°51.5′ W) south to 40°00′ N. is arbitrary and not sufficiently protective of right whales, which have sometimes been seen west of 72°00′ W. The commenter states that NMFS used sightings data to determine this line, but those data are not included in the DEIS. Further, the commenter believes a more regional management approach is prudent and suggested that NMFS analyze incorporating the “Middle Zone” boundary.

Response:

The DEIS identified Alternative 3 as one of its preferred alternatives because of the risk reduction benefit of implementing broad-based gear modifications on a seasonal basis. NMFS did consider implementing Alternative 3 along with the commenters proposed change to the northern boundary of the Mid-Atlantic area. However, the available sighting information did not support the proposed change to the Mid-Atlantic boundary. At this time, NMFS considers waters south of Watch Hill Point, RI (41°18.2′ N. lat. and 71°51.5′ W) to have a seasonality for Atlantic large whales (e.g., migratory corridor). Although animals may be present in Mid-Atlantic waters outside the seasonal period defined in this final rule, recorded large whale sightings are rare at that time for waters south of Long Island Sound. Thus, moving the northern boundary of the Mid-Atlantic management area to the southern border of Delaware would not offer substantial risk reduction for large whales. However, NMFS will reconsider such measures if it receives additional data for such areas and seasons. In addition, NMFS believed that Alternative 6 also offered more immediate protection to right whales and identified this as the other preferred alternative in the DEIS.

NMFS recognizes that there have been sightings of right whales west of 72°00′ W.; however, such events are uncommon. The seasonal variation in gear modification requirements is based on whale distribution data in NMFS' analysis of the NARW Sightings Database through early 2003, supplemented by additional data on humpback and fin whale sightings.

Comment 63:

NMFS received several comments in support of and in opposition to Alternative 4.

Response:

Alternative 4 is one of the more risk-averse approaches to the protection of endangered whales

because it would require year-round use of low-risk gear from the coast of Maine through the South Carolina/Georgia border and seasonal restrictions off the coast of Georgia and Florida. However, based on sighting information, the potential for entanglement of whales in the Mid-Atlantic waters during summer months is low. Therefore, the year-round requirements provided in Alternative 4 for the waters off the Mid-Atlantic coast would likely offer a minimal risk reduction benefit relative to NMFS' preferred alternative, Alternative 6 Final, which incorporates seasonal requirements based on sightings data documenting the movements of large whales.

Comment 64:

NMFS received many comments in support of Alternative 5. Most comments in support of Alternative 5 were from the commercial fishing industry from Maine. Many of these commenters supported Alternative 5 only if the status quo alternative (Alternative 1) could not be maintained. Others believed Alternative 5 best suited fishermen in Maine because Maine fishermen would only have to shoulder a small fraction of the compliance costs under this alternative as compared to the other alternatives. One commenter believed that Alternative 5 has the least impact on Maine fishermen while still meeting baseline whale protection goals of the ALWTRP. Two state representatives and several other commenters supported Alternative 5 as it did not prohibit the use of floating rope. Similar comments were also received from fishermen from the Mid-Atlantic and Southeast.

Response:

As noted in the response to Comment 57, the status quo Alternative 1 does not adequately protect large whales resulting in NMFS determination that regulatory changes are necessary to attain the goals of the ESA and MMPA. Of the remaining alternatives considered, NMFS believed that Alternative 5 was the least conservative, risk-averse approach to the protection of endangered whales. Although the SAM area was proposed to be expanded beyond what is currently required, the use of low-risk gear (e.g., prohibition on floating groundline) was only required in a relatively small area along the entire Atlantic coast. Thus, NMFS believed Alternative 5 offered less protection to large whales compared to the final preferred alternative because the risk of serious injury and mortality is greater under Alternative 5 and less likely to obtain the goals under the ESA and MMPA.

Most fishermen seemed to prefer Alternative 5 based primarily on economic impacts. By adopting Alternative 5, the cost of compliance would be shifted to fishermen who fish within the smaller SAM area. However, based on the available sighting information, NMFS believes the potential for entanglement of whales can occur outside of SAM areas. Although Alternative 5 produces the lowest economic effect to industry, it provides a lower risk reduction benefit compared to both the seasonal and area requirements provided under NMFS' preferred alternative, Alternative 6 Final, which is based on the movements and sightings of large whales.

Comment 65:

The States of Connecticut and New York concurred with NMFS' determination that the proposed measures are consistent with the state's Coastal Zone Management (CZMA) Program, provided that NMFS exempt Lobster Management Area 6 (LMA 6) from the requirements of the ALWTRP. They noted that the available sightings information indicates that large whales do not frequent this area and there is a significant increase in the risk of gear loss. They further identified Alternative 5 as its first preference, but noted that should NMFS not select Alternative 5, that they would favor Alternative 6.

Response:

NMFS reviewed the available sightings information within LMA 6 and determined that the potential for entanglement of whales is low in this area while the potential for gear loss is high. Therefore, NMFS has expanded the exemption line in Rhode Island sound to extend from Watch Hill, Rhode Island, to Montauk Point, New York. As noted in the response to Comment 64, NMFS believes Alternative 5 provides a lower risk reduction benefit compared to both the seasonal and area requirements provided under NMFS' final approved Alternative 6, which is based on the movements and sightings of large whales.

Comment 66:

Several commenters objected to Alternative 5 stating that it is the least protective alternative to protect large whales.

Response:

Not including the status quo Alternative 1, NMFS agrees that Alternative 5 was the least conservative, risk-averse approach to the protection of endangered large whales and did not select this alternative in the final rule.

Comment 67:

One commenter stated that Alternative 5 does not include a phase-in of gear modification requirements (i.e., there are no broad-based gear modifications outside of expanded SAM). The commenter believes that NMFS should justify this by showing the level of risk reduction for Alternative 5 with respect to other alternatives, or how risk reduction deficiencies would be compensated elsewhere.

Response:

Chapter 5 of the EIS provides a detailed discussion of the risk reduction associated with Alternative 5 relative to the other alternatives. Consistent with the comment, Chapter 5 concludes that the absence of broad-based gear modification requirements in Alternative 5 would result in lower risk reduction benefits for large whales.

Comment 68:

One commenter believes that if NMFS were to implement Alternative 5, SAM areas may be further expanded even more in the future.

Response:

The SAM area developed in Alternative 5 was based on the best sightings information available. However, had NMFS selected Alternative 5, NMFS could have modified the SAM area through a separate rule if an expansion of the SAM area was warranted.

Comment 69:

A commenter recommended that if Alternative 5 is selected it should be effective September 1-March 31 in the Mid-Atlantic. The commenter pointed out that year-round closures are unnecessary in the Mid-Atlantic area (especially around New Jersey) since sightings of large whale tend to occur between January and March.

Response:

Seasonal gear modifications for the Mid-Atlantic will be required from September 1-May 31, as defined in this final rule. At this time of year, large whales primarily occur and are still migrating from southern waters to northern feeding grounds (through April and May). NMFS believes that implementing regulations through March 31 would not offer adequate protection.

Comment 70:

Several commenters believed that Alternative 5 was impracticable because it required 600-lb. (272.2-kg) weak links for vertical lines, which would snap in heavy tides and lead to more ghost gear (i.e., gear lost at sea).

Response:

There is no 600-lb. (272.2-kg) weak link requirement for vertical lines. The 600-lb. (272.2-kg) weak link requirement is for flotation and/or weighted devices added to the vertical line. Due to results from load-testing analyses, NMFS believes these breaking strengths are appropriate.

Comment 71:

NMFS received a few objections to Alternative 6; one commenter opposed Alternative 6 because of the seasonal component of the broad-based gear modifications. However, numerous other commenters expressed support for Alternative 6. One

commenter asked that NMFS only apply Alternative 6 where whales have been sighted.

Response:

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

Comments on Exemption Lines/Areas

Comment 72:

One commenter believed exemption lines should be proposed by state governments.

Response:

As part of the scoping process provided under NEPA, NMFS conducted several scoping meetings throughout the Atlantic coast. At each meeting, NMFS made available a scoping document that contained issues and options for modifications to the ALWTRP. The document contained a section concerning exemption areas and requested input from the general public, including state representatives on the ALWTRT, to identify exemption areas. The proposed exemption areas have been developed in response to requests from state fishery management agencies, as well as others, and are designed to ensure that the ALWTRP does not unnecessarily extend commercial fishing regulations to waters in which endangered or protected whales have been rarely, if ever, observed. However, partially based on the comments submitted by interested states, NMFS modified the proposed exemption areas. The

Changes from the Proposed Rule

section of the preamble discusses these exemption line changes. NMFS will continue to monitor all exempted areas, and encourage states to develop contingency plans in the event a large whale is sighted in such areas.

Comment 73:

Many commenters supported using the International Regulations for Preventing Collisions at Sea (COLREGS) to base exemption lines. However, one commenter did not support using the COLREGS in Buzzards Bay and Long Island Sound and requested NMFS to review large whale sightings and reconsider these exemptions. Another commenter stated there is little evidence to support exempting Buzzards Bay and Cape Cod Canal from gear modification requirements because sightings data corroborate that whales do occur in both areas.

Response:

NMFS reviewed the large whale sightings for Long Island Sound and has amended the proposed exemption line. The new exemption line runs from Watch Hill, RI, to Montauk Point, NY. Based on comments, NMFS will revert to the status quo exemption lines for Massachusetts, which includes Buzzards Bay. Thus Buzzards Bay will not have an exemption at this time. See response to Comment 77 for more specific information about Massachusetts.

Comment 74:

Many commenters believe that there need to be exemptions within 3 nautical miles (5.6 km). One commenter stated that the considered regulations seem unfair and unsafe for those fishing near the shore, where they said whales are not seen. Several other commenters believed that SAM areas should not exist inshore of 3 nautical miles (5.6 km) due to the fact that no whales have been seen within 3 nautical miles (5.6 km) of shore.

Response:

NMFS has received many reports throughout New England and the Mid-Atlantic detailing numerous sightings of large whales within 3 nautical miles (5.6 km) of shore. Therefore, NMFS does not believe exemptions within the 3 nautical mile (5.6 km) line along the coast would provide adequate protection for large whales and is not appropriate at this time.

Comment 75:

One commenter stated that NMFS has no means to require modifications if whale habitat use changes (e.g., if fisheries expanded to > 280 fathoms (512.1 m or 1,680 ft) or if right whale habitat use changes due to potential climatic shifts. Such changes could result in whales using proposed exempted areas, such as Delaware and Chesapeake Bays.

Response:

Should new information become available that indicates that a change in the inshore or deep water exemption areas is warranted, NMFS will share the information with the ALWTRT and will take appropriate action.

Comment 76:

One commenter believes the 280 fathom (512.1 m or 1,680 ft) groundline exemption should be flexible and revisited when the agency has more research information and sightings data.

Response:

Currently available dive data suggest that large whales do not dive deeper than 280 fathoms (512.1 m or 1,680 ft). Data come from world-wide observations and are not limited to the Gulf of Maine. As with all exempted areas, if NMFS is presented with new information on the diving behavior of large whales along the east coast that calls the 280 fathom (1,680 ft or 512.1 m) depth level into question, then it will revisit regulations in waters greater than 280 fathoms (512.1 m or 1,680 ft) if necessary. See Comment 75.

Comment 77:

Several commenters oppose the proposed exemption line for Massachusetts for the following reasons: (1) It would cause a safety issue as there are 8,000 recreational lobstermen in the state and enforcing ALWTRP requirements so close to shore could be dangerous; (2) the proposed area is too small to benefit fishermen; and (3) nearly all trap/pot fishermen who fish in the exempted area have received a 75-percent subsidy to convert to sinking groundline, therefore, exempting these areas would be difficult to explain and enforce.

Response:

NMFS agrees with the concerns raised by the commenters and therefore did not adopt the proposed expansion of the exemption line within Massachusetts state waters. Should new information become available to alleviate these concerns, NMFS in consultation with the ALWTRT, may take future action to modify the exemption line.

Comment 78:

Numerous commenters expressed concern for exemptions in the area known as “the Race” in Connecticut and New York. The commenters suggested that waters west of a straight line drawn from Montauk Point, Long Island, to Watch Hill, Rhode Island (current Lobster Management Area 6 line), should be excluded from the proposed amended ALWTRP.

Response:

Discussed in response to Comment 65, NMFS reviewed the available sightings information within LMA 6 and determined that the potential for entanglement of whales is low in this area while the potential for gear loss is high. The data revealed that large whales are rarely sighted near the mouth of Long Island Sound and there are no documented interactions between whales and fishing gear in this area. Upon further inspection NMFS found that this area falls on either side of the current exemption line and has exceptionally strong currents with varying depths and very rocky topography. This area also has high vessel traffic where gear loss is already common. NMFS believes that the use of sinking groundline and 600-lb (272.2-kg) weak links in this area coupled with the issues noted above would increase this gear loss and create a safety risk to fishermen. Consequently, NMFS has modified the exemption line in Long

Island Sound to run from Watch Hill, RI, to Montauk Point, NY.

Comment 79:

One commenter recommended that NMFS check the accuracy of Exhibit 6H-1. The commenter stated that Connecticut fishermen operate in waters other than Connecticut waters; they report commercial fishing activities outside of Connecticut waters to the CTDEP and they fish in the “Race” under New York non-resident commercial lobster licenses. The commenter believes the assumption in Exhibit 6H-1, that vessel activity for state-permitted vessels is equally distributed only within state waters, is not accurate. Also, the commenter believes Exhibit 6G-2 is not accurate because, although there are fishermen who operate in Connecticut waters inside Long Island Sound, which is exempted, there are also vessels that fish in the “Race” and are affected by ALWTRP requirements.

Response:

NMFS recognizes that Connecticut lobstermen fish in New York State waters. The analysis of other trap/pot and gillnet vessels applies a broad assessment of licenses issued by New York that likely includes licenses to out-of-state vessels. NMFS acknowledges that Connecticut-based vessels that purchase trap tags from Connecticut may not be accounted for under Alternatives 2 through 6 Draft (in the DEIS). However, under the preferred alternative, Alternative 6 Final, the portion of waters referred to in this comment (the “Race”) would be exempted from the proposed regulatory requirements. As a result, under the preferred alternative, Connecticut-based vessels operating in these waters would not be affected by the regulations. The EIS acknowledges that fishing activity is not likely to be equally distributed throughout state waters. Data on the location of state-permitted vessel activity are unavailable; in lieu of better data, the analysis employs assumptions that provide a reasonable basis for estimating the number of affected vessels. To the extent that fishing activity is disproportionately concentrated in waters exempted from the requirements, fewer vessels than estimated in the EIS would be affected. Conversely, to the extent that activity is disproportionately concentrated outside of the exempted waters, more vessels than estimated in the EIS would be affected.

Comment 80:

One commenter wants LMA 2 to be exempt from any new regulations as no whales are seen in that area. Another commenter said that there is no Dynamic Area Management (DAM) density in Area 2, thus, the area should be exempt.

Response:

LMA 2 is located in Southern New England nearshore waters, south of Cape Cod and off the southern coast of Rhode Island. Despite the fact that a DAM may not have been triggered in this area, NMFS sightings data indicate that right whales are occurring within LMA 2. Although sightings may not be numerous, right whales have been seen in these waters, including areas outside of Long Island Sound and Block Island. It should also be noted that DAM zones are a regulatory measure only intended for Northern right whales. Thus, a lack in DAM density is not a reliable indicator of whale distribution of other species, in general. Other large whale species covered under the ALWTRP that would not trigger a DAM are known to occur in this area.

Comment 81:

One commenter believed that NMFS does not have a plan to deal with gear in exempted areas if and when right whales are reported in those exempted waters. The commenter stated that since 2002 it does seem that there have been a lot more of what is considered to be out of season/out of habitat sightings and there is no way for NMFS to deal with them.

Response:

The changes to the exemption lines have been developed in response to requests from state fishery management agencies, as well as others, and are designed to ensure that the ALWTRP does not unnecessarily extend commercial fishing regulations to waters in which endangered or protected large whales have been rarely, if ever, observed and there is low risk. In developing the revised exempted areas, NMFS reviewed the available sightings information (including information since 2002) and right whale tracking information where available, and determined that the potential for entanglement of whales is low in these areas so that no changes to the exemption lines are needed, other than those modifications noted in this final rule. NMFS will continue to monitor all exempted areas, and encourage states to develop contingency plans in the event a large whale is sighted in such areas. Should new information become available that indicates that a change in the exemption areas is warranted, NMFS will share the information with the ALWTRT and will take appropriate action.

Comment 82:

One commenter believes that the proposal to exempt inshore of the 50-fathom (91.4-m or 300-ft) curve to explore low profile groundline is inappropriate. The commenter states that this proposal would put whales at risk.

Response:

The alternatives provided in the DEIS and proposed rule did not include a proposal to exempt inshore of the 50-fathom (91.4-m or 300-ft) curve to explore low profile groundline.

Comment 83:

Several commenters believe that NMFS should analyze the 50-fathom (91.4 m or 300 ft) curve in Maine as a line for delineating gear modification requirements (i.e., exempt inshore of 50 fathoms (91.4 m or 300 ft)). They believe this may protect right whales going to and from the Bay of Fundy while allowing operationally realistic risk reduction gear modifications.

Response:

NMFS sightings data confirms the frequent occurrence of right whales in waters landward of the 50-fathom (91.4-m or 300-ft) curve (e.g., southern Maine), thus it would not be an appropriate exemption line.

Comments on Proposed Exemption Lines in Maine

Comment 84:

One commenter said that if there is going to be an exemption line set, it should be based off LMA 1, which already has a line 40 miles (64.4 km) out. The commenter suggested using this line until research shows a problem inside the line. The commenter said the problem is not in the nearshore fishery where 95-percent of fishermen in the State of Maine are fishing.

Response:

In developing potential changes to state exempted waters, NMFS reviewed the NARW Sightings Database from 1960 through mid-September 2005 containing dedicated survey effort and opportunistic sightings data, which is supplemented by additional data on humpback and fin whale sightings, sightings data collected from 2002 through 2006 through the NEFSC systematic aerial surveys and the Northeast U.S. Right Whale SAS, as well as a large whale sightings database compiled by Maine DMR, for data on right, fin, and humpback whale sightings from 1960 to 2002. The areas that would be newly exempted from ALWTRP requirements contained in this final rule include only those in which whales are only occasionally found and are at low risk, as suggested both by NMFS' review of the data and its current understanding of whale behavior. NMFS does not believe that regulating the waters that will be exempted from the ALWTRP would have a significant benefit to large whales. The sightings data do not support exempting state waters out to 40 nautical miles (64.4 km). Exempting this large of an area from ALWTRP regulations would likely have a significant, direct effect on large whales.

Comment 85:

NMFS received numerous commen

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