# Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-19040

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 17, 2021
- **Citation:** 86 FR 51970

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 229 and 697
[Docket No. FR-210827-0171]
RIN 0648-BJ09
Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS is amending the regulations implementing the Atlantic Large Whale Take Reduction Plan to reduce the incidental mortality and serious injury to North Atlantic right whales (
Eubalaena glacialis
), fin whales (
Balaenoptera physalus
), and humpback whales (
Megaptera novaeangliae
) in northeast commercial lobster and Jonah crab trap/pot fisheries to meet the goals of the Marine Mammal Protection Act and the Endangered Species Act. In addition, this action also makes a small revision to Federal regulations implemented under the Atlantic State Marine Fisheries Commission's Interstate Fishery Management Plan for American Lobster to increase the maximum length of a lobster trap trawl groundline. This action is necessary to reduce the risks to North Atlantic right whales and other large whales associated with the presence of fishing gear in waters used by these animals.

DATES:

This rule is effective October 18, 2021. Compliance for 50 CFR 229.32(b)(2)(i), (b)(3), (c)(2)(i) through (iv), and (c)(8) and (9) is not required until May 1, 2022 (see
SUPPLEMENTARY INFORMATION
for more details).

ADDRESSES:

Copies of the Final Environmental Impacts Statement (FEIS) including the Record of Decision, Regulatory Impact Review (RIR), and Regulatory Flexibility Analysis (RFA) as well as supporting documents are accessible via the internet on the Atlantic Large Whale Take Reduction Plan website at:
Fisheries.NOAA.gov/ALWTRP
or you may request copies by email from Marisa Trego:
Marisa.Trego@noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule should be sent within 30 days of publication of this rule to
www.reginfo.gov/public/do/PRAMain
or by email to Ainsley Smith at
Ainsley.Smith@noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Dr. Marisa Trego, Marine Mammal Take Reduction Team Coordinator, phone: (978) 282-8484 or email:
Marisa.Trego@noaa.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

Background

Changes to the Atlantic Large Whale Take Reduction Plan

Changes to the Plan to Reduce the Number of Vertical Buoy Lines

Changes to the Plan to Related to Seasonal Restricted Areas

Changes to the Plan to Establish Weak Rope Requirements

Changes to the Plan for Gear Marking Requirements

Regulatory Language Changes (Definitions)

Changes to Federal Regulations Implementing the American Lobster Management Plan

Comments and Responses

Classification

References

List of Subjects

Background

This final rule implements modifications to the Atlantic Large Whale Take Reduction Plan (ALWTRP or Plan) as informed by the Atlantic Large Whale Take Reduction Team (ALWTRT or Team) and contained in the proposed rule, as modified based upon public input, including modifications deemed necessary by NMFS to meet the goals of the Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA). The final rule includes a one-month delay in effectiveness to allow fishermen time to move gear away from seasonal restricted areas. Compliance with gear configuration modifications described below including those changes that require fishermen to modify gear marking, change gear configurations to increase traps fished on trawls, or modify buoy lines to accommodate new weak rope and weak insertions is not required until May 1, 2022. Delayed compliance will provide fishermen with the time necessary to purchase materials and reconfigure their gear while conducting other regular gear maintenance activities.

The ALWTRP was originally developed pursuant to section 118 of the MMPA (16 U.S.C. 1387) to reduce mortality and serious injury of three stocks of large whales (fin, humpback, and North Atlantic right) incidental to Category I and II fisheries. Under the MMPA, a strategic stock of marine mammals is defined as a stock: (1) For which the level of direct human-caused mortality exceeds the Potential Biological Removal (PBR) level; (2) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the ESA of 1973 within the foreseeable future; or (3) which is listed as a threatened or endangered species under the ESA or is designated as depleted under the MMPA (16 U.S.C. 1362(19)). When incidental mortality or serious injury of marine mammals from commercial fishing exceeds a stock's PBR level, the MMPA directs NMFS to convene a take reduction team made up of stakeholders including representatives of Federal agencies, each coastal state which has fisheries which interact with the species or stock, appropriate Regional Fishery Management Councils, interstate fisheries commissions, academic and scientific organizations, environmental groups, all commercial and recreational fisheries groups and gear types which incidentally take the species or stock, and if relevant, Alaska Native organizations or Indian tribal organizations.
1

1
There are no Alaska Native or Indian tribal organizations participating in fisheries managed under the Atlantic Large Whale Take Reduction Team.

The ALWTRT was established in 1996 and has 60 members, including about 22 trap/pot and gillnet fishermen or fishery representatives. The background for the take reduction planning process and initial development of the Plan is provided in the preambles to the proposed (62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22, 1997), and final (64 FR 7529, February 16, 1999) rules implementing the initial plan. The Team met and recommended modifications to the Plan, implemented by NMFS through rulemaking, several times since 1997 in an ongoing effort to meet the MMPA take reduction goals. Despite modifications to the Plan (notably the use of sinking groundlines effective in 2009 (72 FR 57104) and efforts to reduce the number of vertical buoy lines and an expansion of the Massachusetts Restricted Area (MRA) effective in 2015 (79 FR 36586, 79 FR 73848, and 80 FR 30367)), mortalities and serious injuries of right whales in U.S. gear and first seen in U.S. waters at levels above PBR have continued.

NMFS informed the Team in late 2017 that it was necessary to reconvene to develop recommendations to reduce the impacts of U.S. commercial fisheries on

large whales with a focus on reducing risk to the declining North Atlantic right whale population (Pace
et al.
2017). Seventeen right whale mortalities were observed in 2017, including many determined to have been caused by vessel strikes and entanglements, leading to a declaration of a right whale Unusual Mortality Event. An annual average of five entanglement-related mortalities and serious injuries were documented from 2009 through 2018. Most could not be identified to a country of origin; only 0.2 per year could be attributed with certainty to U.S. fisheries, only 0.7 per year to Canadian fisheries, and an average of four per year could not be attributed to either country. For the purposes of creating a risk reduction target, NMFS assigned half of the unknown entanglement incidents to U.S. fisheries. Under this assumption, based on documented mortality and serious entanglement incidents, a 60-percent reduction would be needed to reduce right whale mortality and serious injury in U.S. commercial fisheries from an annual average PBR of 2.2 to below the current PBR of 0.8 per year. However, documented mortalities and serious injuries represent a minimum count and unobserved mortalities and serious injuries are not considered in the 60-percent target risk reduction. An upper bound target of 80 percent considered estimated mortalities generated by the Pace
et al.
2017 population model that estimates unobserved mortality (Hayes
et al.
2019). Currently, there is no way to definitively apportion unseen but estimated mortality across causes (fishery interaction vs. vessel strike) or country of origin (
United States
vs.
Canada
). For the purposes of developing a conservative target to meet the MMPA goals, in 2019 NMFS assumed that half of the estimated undocumented incidents occurred in U.S. waters and were caused primarily by incidental entanglements. However, given the assumptions and other sources of uncertainty in the 80-percent target, as well as the challenges achieving such a target, the Team focused on developing recommendations to achieve the lower 60-percent target.

Greater detail on right whale population estimates, the stock's decline, changes in distribution and reproductive rates, and entanglement-related mortalities and serious injuries documented in recent years can be found in the preamble to the proposed rule (85 FR 86878 December 31, 2020), and are briefly summarized in Chapter 2 of the FEIS.

During a Team meeting in April 2019, the Team recommended a framework of measures to modify lobster and Jonah crab trap/pot trawls within the Northeast Region Trap/Pot Management Area (Northeast Region) intended to reduce risk of mortality and serious injury to right whales incidentally entangled in buoy line in those fisheries by at least 60 percent. The Team's near-consensus recommendations included jurisdictionally specific combinations of line reduction measures to reduce right whale encounters with buoy lines and weak rope requirements to increase the chance of right whales parting the rope (self-releasing) to reduce mortalities and serious injuries when entanglements do occur. As described in more detail in the preamble to the proposed rule and in Chapter 3 of the FEIS, the Team's recommendations were not fully crafted as regulatory elements, and the proposed rule and draft environmental impact statement (DEIS) included modifications to the Team's recommendations based on public scoping and input from New England states related to implementation and operational feasibility. The proposed rule analyzed in the DEIS included less line reduction and weak rope than the Team recommended, and included additional measures to reduce right whale co-occurrence through new or expanded seasonal restricted areas. Although the Team did not make recommendations on the existing weak link requirement at the buoy line or on the proposed change to transition seasonal restricted areas to be closures to fishing with buoy lines rather than closures to fishing altogether, those measures were also proposed and analyzed. Finally, gear marking recommendations were discussed by the Team and received general support, but specific gear marking requirements were never taken to a vote for consensus, and gear marking requirements were not included in the Team's recommendations. Comments on the proposed rule and DEIS as well as new information regarding right whales were considered in the development of this final rule.

The public's vast input into this regulatory effort demonstrates stakeholder interest in conserving and recovering the North Atlantic right whale while also ensuring the development of operationally feasible and economical risk reduction measures. Benefits of large whale protection are difficult to describe in monetary value, but include non-consumer use benefits, non-use benefits, and potential costs savings from current disentanglements efforts. Economic research has demonstrated that society places economic value on environmental assets, whether or not those assets are ever directly exploited. The large number of commenters shows that society places real (and potentially measurable) economic value on simply knowing that large whale populations are flourishing in their natural environment (often referred to as “existence value”) and will be preserved for the enjoyment of future generations. Collateral benefits to other species are also incurred through buoy line reductions that benefit other endangered species of large whales and endangered sea turtles, and weaker rope that would benefit other large whales.

Protection to large whales under the take reduction process, however, cannot be done without an economic impact. The annual cost of compliance for this rulemaking is $9.8-19.2 million, representing 1.5 to 3 percent of the 2019 landings value of the fisheries. However, given the input of fishermen and fishery managers, operationally feasible measures were developed that, relative to the other alternative analyzed, achieve the purposes of this rulemaking with nearly the same risk reduction but a much lesser economic impact on regulated entities than the analyzed non-preferred Alternative.

Changes to the Atlantic Large Whale Take Reduction Plan

This rule modifies the Plan in 50 CFR part 229, specifically the Northeast Region (Maine through Rhode Island) American lobster and Jonah crab trap/pot fishery. Described in more detail below, this rule: Increases the minimum number of traps per trawl based on area fished and distance fished from shore in the Northeast Region; modifies existing restricted areas from seasonal fishing closures to seasonal closures to fishing with persistent buoy lines; expands the geographic extent of the Massachusetts Restricted Area to include Massachusetts state waters north to the New Hampshire border; establishes two new restricted areas that are seasonally closed to fishing for lobster or Jonah crab with persistent buoy lines; requires modified buoy lines to incorporate rope engineered to break at no more than 1,700 pounds (lb) (771.1 kilograms (kg)) or weak insertion configurations that break at no more than 1,700 lb (771.1 kg); and requires additional marks on buoy lines to differentiate vertical buoy lines by principal port state, includes unique marks for Federal waters, and expands requirements into areas previously exempt from gear marking.

Changes to the Plan To Reduce the Number of Vertical Buoy Lines

The rule increases the minimum number of traps between buoy lines, known as trawling up, to reduce the number of buoy lines. The trawl configurations are established by area fished and distance fished from shore in the Northeast Region (waters offshore of Maine (ME), New Hampshire (NH), Massachusetts (MA), and Rhode Island (RI)) as detailed in Table 1. The rule describes the areas established in Maine regulations and known as Maine Lobster Management Zones (Zones) (ME DMR 13-188 Chapter 25.94). As a conservation equivalency measure for vessels fishing in Zones, this rule allows fishermen to choose to either trawl up to the minimum established traps/trawl or fish a trawl with half the minimum number of traps with a buoy line on only one end.

Table 1—Line Reduction Measures

Area
Traps/trawl

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

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

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

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

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

ME 6*-12 nm, Zone B, D, E, F
10 traps/trawl per two buoy lines or 5 traps/trawl per one buoy line (status quo in D, E, & F).

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

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

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

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

LMA3, North of 50 fathom line on the south end of Georges Bank
45 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) to 1.75 nm (3.24 km).

LMA3, South of 50 fathom line on the south end of Georges Bank
35 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) to 1.75 nm (3.24 km).

LMA3, Georges Basin Restricted Area
50 traps/trawl, increase maximum trawl length from 1.5 nm (2.78 km) to 1.75 nm (3.24 km).

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

Changes to the Plan Related to Seasonal Restricted Areas

The rule modifies closures in two restricted areas, the Massachusetts Restricted Area and the Great South Channel Restricted Area, by implementing closures to buoy lines rather than closures to the harvest of lobster or Jonah crab by the trap-pot fishery. The change would not include the Outer Cape Cod (OCC) Lobster Management Area (LMA), which remains closed to the lobster and Jonah crab trap/pot fishery under Massachusetts and Federal regulations (32 Mass. Reg 6.02 paragraph(7)(a) and 50 CFR 697.7(c)(1)(xxx)) implementing the Atlantic State Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan for American Lobster. This modification allows fishermen with authorization to be exempt from surface marking requirements (buoys, radar reflectors, and high flyers) to fish these areas if they fish without the use of persistent buoy lines by remotely retrieving traps from the bottom using an acoustic signal, or through other means that do not require a persistent buoy line. This measure is intended to accelerate research and development of buoyless fishing methods, commonly termed “ropeless” fishing, so that in the future, commercial fishing using ropeless technology can be used in place of seasonal closures to allow trap/pot fishing while protecting right whales.

NMFS has invested a substantial amount of funding in developing ropeless fishing gear. We anticipate that these efforts to facilitate and support the industry's development of ropeless gear will continue, pending appropriations. Given the high cost of ropeless retrieval technology, for the foreseeable future, industry participants are likely to depend on loans of gear purchased by the Northeast Fisheries Science Center for ropeless research collaborations. By 2025, we anticipate this would allow up to 33 fishermen to fish with up to 10 trawls each in the Northeast Region, including the restricted areas. Because they would be fishing under Federal exempted fishing permits (EFP) or equivalent state authorization, conditions to minimize impacts on the natural and human environment will likely include some area restrictions, reporting and monitoring requirements, gear marking of any stored buoy line, and evidence of communication and collaboration with adjacent fixed and mobile gear fishermen to minimize gear conflicts.

This rule also extends the area of the Massachusetts Restricted Area north to the New Hampshire border for state waters, mirroring the Massachusetts 2021 modification of the state water closure (322 CMR 12.04(2)). This final rule does not adopt the Massachusetts seasonal extension through May 15, but instead retains the February through April seasonal closure.

This rule also establishes two new restricted areas that would be seasonally closed to fishing for lobster and Jonah crab with persistent buoy lines. The LMA 1 Restricted Area would be closed to buoy lines from October through January. The South Island Restricted Area would be closed to buoy lines from February through April. Figure 1 shows existing (dark gray) and new (light gray) seasonal restricted areas.

ER17SE21.000

Changes to the Plan To Establish Weak Rope Requirements

This rule removes the requirement for a weak link at the buoy in the Northeast Region commercial lobster and Jonah crab trap/pot fisheries. As described in Table 2, all buoy lines in these fisheries will have weak rope or weak insertions well below the surface system. There is little information available to determine the efficacy of weak links at the buoy in reducing entanglement severity. Models suggest that when a whale encounters rope in the water column, the rope parts below the encounter (Knowlton
et al.
2020). Retention of the buoy may have some benefits: Buoys have identifying marks that could improve our understanding of set locations of retrieved gear or may provide resistance and pull gear away from a whale, improving the chances of shedding gear.

Depending on the area fished and distance from shore, this rule requires all buoy lines in the fisheries to use engineered weak rope or weak inserts as described in Table 2. Under most operational conditions, weak rope or a weak insertion within the top half of a buoy line would not be subject to forces approaching or greater than 1,700 lb (771.1 kg) during hauls. Weak insertion placement locations were developed and proposed by Maine Department of Marine Resources (DMR), with much input from Maine fishermen who identified measures that could work with their existing gear, even with the longer trawl lengths being implemented. These measures reduce economic impacts and concerns that longer trawl lengths would result in strong and more dangerous buoy ropes.

Table 2—Weak Rope Measures

Area
Weak rope or weak insertions

Northeast Region
For all buoy lines incorporating weak line or weak insertions, remove weak link requirement at surface system.

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

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

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

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

ME Zone A west, B, C, D, E; Federal waters 3-12 nm (5.56-22.22 km)
2 weak insertions, at 25 percent and 50 percent down line.

ME Zone A east, F, and G; Federal waters 3-12 nm (5.56-22.22 km)
1 weak insertion 33 percent down the line.

MA and NH LMA 1 , OCC; Federal waters 3-12 nm (5.56-22.22 km)
2 weak insertions, at 25 percent and 50 percent down line.

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

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

LMA 3
One buoy line weak to 75 percent.

A number of approved weak insertions are detailed in this regulation. To be approved, these weak inserts were demonstrated to break at 1,700 lb (771.1 kg) or less through 10 trials with a calibrated rope breaking machine, they are considered replicable, and are large enough and created with a contrasting color so they can be detected for enforcement purposes.

This rule also includes a provision for the Greater Atlantic Regional Administrator to approve in writing new weak insertions that are demonstrated to break at 1,700 lb (771.1 kg) or less and to include information about approved weak insertions on the ALWTRP website. The current regulations indicate that the NMFS Assistant Administrator would approve new weak insertions, as well as weak link and gear marking modifications. In actual practice, the NMFS Greater Atlantic Regional Administrator makes that determination, therefore these edits are made for accuracy. A definition for the Regional Administrator was added to the definitions list in 50 CFR part 229.

Changes to the Plan for Gear Marking Requirements

This rule modifies gear marking requirements by establishing a state-specific color for Maine (purple), New Hampshire (yellow), Massachusetts (red), and Rhode Island (silver/gray) vessels, except those fishing in LMA 3 which retains black as the primary gear mark color. For ropeless fishing operations working under EFPs or state authorizations, gear marking is likely to be recommended as a permit condition for any stored buoy line that is retrieved remotely, and a yellow/black striped mark is anticipated. All vessels in the Northeast Region are required to include a large 3-foot (0.9-meter (m)) solid mark within the surface system using paint or tape, and additional 1-foot (0.3-m) green marks (no marking convention defined; tape, paint, twine, etc.) within 6 inches (15.24 centimeters (cm)) of each area-specific gear mark to distinguish state from Federal waters or, in the case of LMA 3 vessels, to distinguish Northeast Region vessels from vessels fishing in the southern and western LMA 3 waters. For dual permitted vessels that fish in both state and Federal waters, the green gear mark can be created with a twine or other marking system that can be applied or removed during transit between state and Federal water fishing locations, or with paint, if applicable state regulations permit Federal marks to remain on buoy lines fished in state waters by dual permitted vessels. Gear marks are all required to be 1-foot long or greater when installed to distinguish them from Canadian marks, which currently are required to be at least 6 inches (15.24 cm) in length. The term “state” refers to the state associated with the vessel's principal port as declared on state and Federal permits. A principal port is considered the city and state where the majority of landings occur. Although more than 90 percent of lobster and Jonah crab Federal permit holders identify the same state as their principal port, mailing address, and home port (city and state where a vessel is moored), the port of landing was selected based on recommendations from some state managers, and is considered to be the area where fishing occurs.

Table 3—Gear Marking Modifications

Area

Northeast Region Lobster and Jonah Crab Trap/Pot
Gear Marking Requirement

State Waters
One 3-foot (0.9-m) state-specific colored mark (based on principal port state) in surface system within 2 fathoms (3.7 m) of the buoy. At least two 1-foot (0.3-m) marks in the state (principal port) color in the primary buoy line, one in the top half and one in the bottom half. Maine exempt waters will be regulated by Maine and not included in Federal regulations.

All Northeast Region Federal waters, except LMA 3
A 3-foot (0.9-m) state-specific colored mark within two fathoms (3.7m) of the buoy. At least three 1-foot (0.3-m) marks in the state (principal port) color on the top, middle and bottom of the primary buoy line. Additional Northeast Region Federal water mark within 6 inches of each state-specific color: 1-foot (0.3-m) long green marks. For dual permitted vessels, state regulations will determine whether green Federal markings can remain on gear being fished in state waters.

LMA 3
A 3-foot (0.9-m) black mark within 2 fathoms (3.7 m) of the buoy. At least three 1-foot (0.3-m) black marks on the top, middle and bottom of the primary buoy line. Additional Northeast Region Federal water mark within 6 inches of each black mark: 1-foot (0.3-m) long green marks within 6 inches (15.24 cm).

Regulatory Language Changes (Definitions)

This rule adds three definitions to § 229.2. A definition is added for “Lobster Management Area” to reference the management areas that were developed for the American lobster fishery, citing the Atlantic Coastal Fisheries Cooperative Management Act regulations at 50 CFR 697.18. A definition for “surface system” is added for clarity related to the gear marking requirements. A definition for “Regional Administrator” is added to clarify approvals for any new weak insertions and provide information about approved weak insertions on the ALWTRP website.

A housekeeping edit is made to the Table in paragraph (c)(2(iv) completing a blank cell in the table by clarifying that there is no minimum number of traps per trawl in the Southern Nearshore Trap/Pot Waters Area.

Changes to Federal Regulations Implementing the American Lobster Management Plan

In addition to changes to 50 CFR part 229, this rule makes two minor revisions to the Federal regulations implemented under the Commission's Interstate Fishery Management Plan for American Lobster at 50 CFR 697.21. To accommodate conservation equivalencies in Maine Lobster Management Zones, this rule modifies the requirement that limits lobster trap trawls with a single buoy to trawls of no more than three traps to allow up to ten traps on a trawl attached and marked with a single buoy by Maine permitted vessels fishing in some Maine Zones within LMA1. To accommodate changes in the number of traps per trawl in LMA 3, this rule also increases the maximum length of a lobster trap trawl from 1.5 nm (2.78 km) to 1.75 nm (3.24 km), as measured from radar reflector to radar reflector.

Comments and Responses

We published the Proposed Rule to Amend the Atlantic Large Whale Take Reduction Plan to Reduce Risk of Serious Injury and Mortality to North Atlantic Right Whales Caused by Entanglement in Northeast Crab and Lobster Trap/Pot Fisheries and DEIS on December 31, 2020. A 60-day public comment period began on December 31, 2020, and ended on March 1, 2021 (85 FR 86878, December 31, 2020). We reviewed and considered all written and oral public submissions received during the public comment period. Comments on the proposed rule and DEIS were accepted as electronic submissions via
regulations.gov
on docket number NOAA-NMFS-2020-0031, as electronic submissions via email to a NMFS representative, and comments submitted orally at public information sessions and hearings.

In January 2021, we held four public information sessions and in February 2021, we held four public hearings, all virtual due to the global pandemic. The sessions were organized by region, though everyone was welcome to attend any session. Although the purpose of the January meetings was to provide information and answer questions, we accepted oral comments on the proposed rule and the DEIS at all eight meetings. A total of 122 speakers submitted comments orally at public information sessions or public hearings. Many of the speakers submitted more than one comment, and several submitted comments at more than one session. If an individual commented at more than one session, the individual was counted as a unique speaker on each day. We received 2 comments from academic/scientific individuals or organizations, 3 fishing industry associations, 27 non-governmental organizations, 27 members of the public, 59 fishermen, 2 state fishery resource managers, and 2 state/Federal legislators.

We received 171,213 written comments on the Proposed Rule and the DEIS through the comment portal. Of these, six comments from Non-Governmental Organizations were entered as counting for more than one comment: Pew Charitable Trusts: 47,699; Conservation Law Foundation: 1,192; Humane Society of the U.S: 15,922; Oceana: 18,440; Natural Resources Defense Council: 33,045; and Riverkeepers: 4. Five additional comments from Non-Governmental Organization were entered as one comment, but had thousands of signatures attached: International Fund for Animal Welfare: 31,912; Whale and Dolphin Conservation: 3,629; Environment America: 11,727; Center for Biological Diversity: 26,594; and Environmental Action: 11,135.

All of the above-referenced comments, which represent up to 201,269 people, were in favor of stronger regulations to protect North Atlantic right whales. They strongly favored the following measures: Longer and larger restricted areas, increased gear marking, transition to ropeless gear, and a risk reduction target of more than 60 percent. While many were in favor of weak rope or weak link requirements, many also voiced concerns that 1700 lb breaking strength has not been proven to reduce entanglements and could still severely entangle juveniles and calves. In addition, the vast majority urged NMFS to use the most updated population data in setting risk reduction targets and recommended the use of emergency measures to take action immediately.

After accounting for the bulk submissions, we received 53,585 comments uploaded through the
regulations.gov
portal, as well as 9 comments emailed directly to our office, 3 of which were added to
regulations.gov,
and are included in the 53,585 total above. After running a deduplication analysis, identifying additional campaign emails not detected by the deduplication analysis, and reviewing the entries for double submissions or submissions of supporting documentation separate from the original comment letter, we received approximately 1,076 unique comments that were not clearly part of a coordinated campaign. We received 28 comments from academic/scientific individuals or organizations, 2 Federal agencies, 1 Federal resource manager, 2 fishery management associations, 10 fishing industry associations, 2 manufacturers, 71 non-governmental organizations, 617 members of the public, 300 fishermen, 2 representatives from other industries, 32 state/Federal legislators, 7 state fishery resource managers, and 2 towns.

As many of the speakers who submitted comments orally also submitted comments through the
regulations.gov
portal, we considered each individual's comments, both oral and written, as one submission. This gives us a total of 1,129 unique submissions. Combining both written and oral submissions, and excluding duplicates, we received submissions from 28 academic/scientific individuals or organizations, 2 Federal agencies, 1 Federal resource manager, 2 fishery management associations, 10 fishing industry associations, 2 manufacturers, 76 non-governmental organizations, 628 members of the public, 336 fishermen, 2 representatives from other industries, 33 state/Federal legislators, 7 state fishery resource managers, and 2 towns.

Of the 336 unique commenters who identified themselves as fishermen, either directly or through context, 312 voiced opposition to all or part of the rule, 19 commented on particular provisions, but did not expressly support or oppose, and 5 supported the general idea of the rule, though had specific comments on some measures. Of the ten fishing industry groups, eight opposed all or part of the rule, one gave specific recommendations, but did expressly support or oppose, and one supported the general idea of the rule. The primary concerns raised by fishermen are that right whales are not in the areas that they fish and this rule will not protect right whales, but instead will place a large economic burden on fishermen with no benefit for the whales (>147); the economic impact of this rule will put them out of business and devastate coastal communities (>126); and that ropeless fishing is not yet and may never be feasible on a large scale (>105).

Of the 628 unique commenters who identified themselves as members of the public, either directly or through context, the vast majority (534) supported this rule, but expressed the opinion that the rule did not go far enough to protect right whales, with 84 suggesting NMFS use emergency authority to implement immediate protections for whales. Only 54 expressed opposition to the rule. A small number suggested that this rule

should be withdrawn because it does not provide adequate levels of protection for right whales, and NMFS should start over.

To summarize, overall, nearly 59 percent of unique commenters supported the Proposed Rule in whole or in part, with the majority expressing the opinion that the proposed regulations should be strengthened to provide more protection to right whales. A little over 34 percent of commenters opposed the rule in whole or in part, and about 4 percent suggested that the rule should be withdrawn because it does not provide adequate levels of protection for right whales, and NMFS should start over. About 4 percent of commenters did not express support or opposition, but suggested specific measures or strategies that NMFS should employ. In addition, about 14 percent of commenters (who had either supported the rule or suggested starting over) wanted NMFS to take emergency action.

We identified a total of 187 distinct substantive comments that were within the scope of the current rulemaking. The majority of these comments were submitted by multiple people, some of them by thousands of people. We also received several comments that were outside the scope of the current rulemaking, which are summarized below. The final rule and analyses in the FEIS are related to amendments to the Plan. The Plan and the take reduction process are restricted to the monitoring and management of incidental mortality and serious injury of marine mammals in U.S. commercial fisheries. Because these comments were out of the scope of the final rule and the FEIS, we did not provide responses in this document.

Below, we summarize the comments received in the topic category, and then provide specific comments and responses to each. Responses may refer to portions of the FEIS or final rule that have been modified as a result of comments (to obtain copies of the FEIS see
ADDRESSES
). We also made changes to the DEIS and the rule in response to the comments, where appropriate, including updates to data where the comments affect the impact analysis. Technical or editorial comments on the DEIS merely pointing out a mistake or missing information were addressed directly in the body of the FEIS and final rule.

Due to the large number of comments, they are organized according to the following specific topics: 1. Canada, 2. Economics, 3. Enforcement, 4. Gear Marking, 5. Legal Issues, 6. Line/Effort Reduction, 7. Management, 8. Research, 9. Restricted Areas, 10. Ropeless Gear, 11. Stressors, 12. Trawls, 13. Weak Links/Inserts/Rope, 14. Out of Scope.

1. Canada

Of the 1,129 unique comments, around 43 suggested that Canadian fishing gear is largely to blame for the recent right whale mortalities and entanglements, and that Canada needs to do more to reduce right whale mortalities and serious injuries. In addition to these commenters, dozens of others felt it was unfair that U.S. fishermen are being asked to make expensive and time-consuming changes to fishing gear and practices, and many questioned NMFS's apportionment of unknown entanglements in determining how much risk reduction was needed to reduce U.S. commercial fishery interactions to the PBR level established under the MMPA.

Comment 1.1:
Canadian fishing gear is primarily responsible for recent right whale entanglements and mortalities, not U.S. fishing gear, and NMFS should not attribute 50 percent of the unknown gear to the United States.

Response:
In recent years, gear has only been retrieved from about 54 percent of the detected right whale entanglement events. The majority of the entangling line retrieved is of unknown origin. During 2010-2019, out of 114 documented right whale entanglement incidents, gear was present on 62 whales. Of these, gear could be identified to a country in only 25 incidents (22 percent of all observed incidents): 18 were documented Canadian cases (14 Canadian snow crab, 4 unknown Canadian) and 7 were documented U.S. cases (1 gillnet, 1 lobster, 2 unknown trap, 3 unknown United States). The remaining 37 incidents involved gear of unknown origin (6 unknown gillnet/mesh, 1 unknown trap, 30 unknown line). Out of approximately 1.24 million buoy lines within the Northeast waters from Rhode Island to Maine, we estimate that 72 percent of buoy lines were unmarked under current ALWTRP gear marking guidelines although that percentage was reduced when Maine required gear marks on lobster trap buoy lines beginning in September 2020.

It is important to consider that most right whale mortalities are never seen. Entanglement incidents detected in the Gulf of St. Lawrence in recent years from May to early November may reflect some observer bias as the result of the extensive survey effort since late summer 2017 in an enclosed water body. During most of that season, the whereabouts of the two-thirds of the population that were not detected in the Gulf of St. Lawrence remains largely unknown. While acoustic detections indicate that right whales are present in U.S. waters year round, counts of individuals when spread over large areas remain outside of current capabilities but, given Gulf of St. Lawrence counts, the entire population could be present in U.S. waters from December through April and up to two thirds of them could be present year round. U.S. fisheries fish many more buoy lines than Canadian fisheries. That exposure to U.S. fisheries is balanced, however, by the many broad scale gear modifications in place, as well as seasonal restricted areas implemented under the Plan. However lacking an actual estimate of the proportion of the right whale population's exposure to U.S. or Canadian fisheries each year, in 2019 NMFS apportioned unknown mortality using a 50/50 split that recognized that more whales may be exposed over more months to fishing gear in U.S. waters (suggesting higher opportunity for entanglement) but broad based U.S. conservation measures would reduce mortality and serious injury. This apportionment also recognizes that mortality is occurring on both sides of the border, and that U.S. and Canadian measures are needed to reduce human-caused mortality to this transboundary species to recover the population. For more, see FEIS Section 2.1.5.

Comment 1.2:
Canada's current regulations are insufficient, as they rely on dynamic management, which could fail due to lack of visual or acoustic detections, and the delay of weak rope implementation until the end of 2022.

Response:
Under the MMPA, NMFS is responsible for U.S. fisheries and protected species within our borders and on the high seas. We work closely with our Canadian partners through bilateral meetings, coordinated disentanglement efforts, distribution and abundance data, health assessment, and gear analysis. Since July 2017, Canada has shown a commitment to reduce the impacts of their fisheries on the North Atlantic right whale population and they affirm that commitment in these bilateral efforts. The Canadian Department of Fisheries and Oceans (DFO) is responsible for fisheries management and protected species within their borders, and any concerns about their management measures should be directed to Canada's DFO.

Comment 1.3:
Canada and the United States should collaborate in monitoring, data collection, and technology development to understand whale movements and sources of mortality,

and the United States should pressure Canada into doing more.

Response:
NMFS coordinates with Canada on right whale conservation and recovery efforts through bilateral discussions and frequent information sharing with the DFO and Transport Canada at both the senior leadership and staff levels. NMFS senior leadership have had discussions with leadership from DFO and Transport Canada on conservation and management efforts for right whales since 2019, and plan to continue these discussions. We also coordinate and cooperate with DFO and Transport Canada through the Canada and United States Bilateral Working Group on North Atlantic Right Whales. This includes discussing lessons learned on fishing and vessel regulations, planning joint scientific activities (
e.g.,
aerial surveys), and coordinating collaboration across all right whale conservation efforts.

Comment 1.4:
Maine's Department of Marine Resources should be allowed to participate in all future bilateral meetings with Canada.

Response:
The U.S. Government routinely conducts bilateral consultations with foreign counterparts on issues of fisheries management. Several of these ongoing consultations are founded in formal collaborative agreements, while others occur through less formal arrangements. Discussions often include sensitive topics, such as respective positions being considered for multilateral organizations. Consequently, such consultations are restricted to Federal government personnel.

2. Economics

Approximately 143 commenters voiced concerns that this rule would cause them extreme economic hardship, with some stating that this rule would put them out of business. Many commenters expressed concern about the effects of this rule on the economic health of their communities, the supply chain, and on the state of Maine. Several questioned NMFS' economic analysis and suggested additional factors to consider in the economic analysis. Others were concerned that economics inappropriately and illegally dictated the alternatives considered in this rule; see the Legal Issues section for responses to those comments.

Comment 2.1:
The new regulations will drive up costs, making fishermen unable to compete with Canada, resulting in the loss of an iconic U.S. fishery.

Response:
Under the Fish and Fish Product Import Provisions of the MMPA published on August 15, 2016 (81 FR 54389), fish and fish products from fisheries identified by the NOAA Assistant Administrator in the List of Foreign Fisheries can only be imported into the United States if the harvesting nation has applied for and received a comparability finding from NMFS. Nations have until November 30, 2021, to apply for Comparability Findings for their fisheries. Beginning January 1, 2023, all nations seeking to continue exporting fish and fish products to the United States must have received Comparability Findings. Beginning in 2023, Canadian lobster and snow crab fisheries will face similar conservation costs for large whale protection if they wish to enter the U.S. seafood market. The new MMPA import regulations are intended to even the playing field.

Comment 2.2:
NMFS underestimated the economic costs of the LMA1 seasonal restricted area because it did not take into account; (1) total affected vessels, (2) displacement of effort from those vessels, (3) changes in value to landings.

Response:
Based on the comments received, we identified new and updated data sources and have revised our estimation methods. In the DEIS, we relied on the Industrial Economics (IEc) model vessel data and calculated catch per trap using NMFS Vessel Trip Report data. Because only about 10 percent of Maine vessels provide trip reports annually, these data may not have reflected the catch rates and landings achieved by vessels fishing in the seasonal restricted areas. Due to public comments, we updated the analysis using Maine Department of Marine Resources (Maine DMR) harvester and dealer report data to re-estimate the total landings outside 12 nm. Please see FEIS Section 6.3.4.1 for details.

Further, not all landings would be lost when the restricted area is in place. Fishermen are expected to relocate their gear to fishing grounds within the same or directly adjacent Maine lobster management zones. As fishermen commented, vessels already fishing in those adjacent fishing grounds would then be crowded, reducing their catch rates. We have included the crowding effects to other vessels in the surrounding areas in our economic calculations in the FEIS. We also assume a 5-10 percent reduction rate based on the natural lobster mortality rate. Nearly all the lobsters not caught during the restricted area closure are assumed to be caught at other locations or later in the year. Looking at the industry as a whole, the lost value to the entire fleet would be those lobsters dying from natural causes.

In Table 6.12, as one commenter noted, we had incorrect information on the lobster price unit leading to an error in the landings values. The prices displayed in the table are in dollars per pound but should have been calculated as dollars per kilogram. However, the costs in the last two columns are still correct, as they were calculated separately using pounds.

Comment 2.3:
NMFS should include the potential benefit of reducing the need for disentanglement efforts in the economic effects analysis. We ask NMFS to evaluate the annual average costs of retaining each disentanglement team, including its equipment, insurance requirements, and staff.

Response:
We agree that we should consider this in our economic analysis, and have revised our analysis to include an estimate of disentanglement costs as well as the potential benefit of reducing the need for disentanglement efforts. See the qualitative and quantitative discussion in FEIS Section 9.6.4.

Comment 2.4:
The DEIS does not analyze the economic benefits of ropeless fishing.

Response:
This rule does not require fishermen to fish with “ropeless” fishing gear. However, in response to commenters, we added some analysis of the economic costs and benefits of ropeless fishing to FEIS Section 6.3.3, and some details of anticipated impacts can be found in response to comments below in response to Comment 9.4.

Comment 2.5:
The Proposed Rule fails to account for the full benefits of weakening vertical lines to reduce mortality and serious injury from entanglements. The full benefits should be taken into account in the development of a final rule.

Response:
All cases where full weak rope was not implemented were analyzed according to the proportional risk reduction of the number of inserts compared to the equivalent of full weak rope (an insert every 40 feet). Please see FEIS Section 3.3.4 and 5.3.1.3 for a description of how the use of weak rope was analyzed and the anticipated impacts on large whales. FEIS Sections 5.3.2.3 and 5.3.4.3 discuss the expected impacts on other protected species and protected habitat.

Comment 2.6:
NMFS should consider the costs already incurred under previous take reduction measures, and the effectiveness of those measures, and should standardize a review of its economic analysis based on the actual impact of previous rules.

Response:
In the FEIS, we revised our analysis to provide as much information as possible about the costs already incurred under previous take reduction

measures. However, these economic impacts are not directly related to current rulemaking, so would not be included in the final costs. Under Section 610 of the Regulatory Flexibility Act, NMFS is required to review any significant rule to evaluate the continued need for regulation. Our review procedures include a summary of the expected economic impacts contained in the final rule, as well as a summary of any changes in technology or economic conditions that may have occurred since. To allow for sufficient time for economic adjustments to occur and for data to become available, we review rules every seven years. The most recent ALWTRP rule was published in 2015, and will be coming up for review shortly.

Comment 2.7:
Did economic analysis take into account fishermen from outside Maine, New Hampshire, Massachusetts, and Rhode Island, as there are some fishermen from New York and Connecticut that may be affected?

Response:
This rulemaking applies to lobster and Jonah crab fisheries in the Northeast Region Trap/Pot Management Area (Northeast Region). Please see FEIS Chapter 1 for the regulated waters map. In the DEIS, we only included fishermen from Maine to Rhode Island. In the FEIS, we identified a few New York fishermen that fished within the regulated area and we revised our analysis to include the economic impacts to those lobster and Jonah crab fishermen. No Connecticut fishermen were identified in the regulated waters. Due to data confidentiality requirements, those New York fishermen were combined with Rhode Island LMA 2 vessels and LMA 3 vessels in the analysis.

Comment 2.8:
This rule will drive small fishermen out, and the fleet will become consolidated into larger corporate operations, destroying iconic tourist-drawing fishing communities and resulting in cultural loss.

Response:
A number of the measures including trawling up and weak insertion requirements were initially developed by Maine DMR after extensive outreach with Maine fishermen. Fishermen indicated that the trawling up and weak insertion measures could be done by reconfiguring existing trawls and buoy lines, reducing impacts of wholesale replacement of gear. Based on recommendations from the public, fishermen and state agencies, we have modified the alternatives in the FEIS to include conservation equivalencies in Southern New England, LMA 3, and Maine Lobster Management Zones out to 12 miles. As requested by Rhode Island fishermen and supported by the state, we analyzed the use of weak rope instead of trawling up measures for LMA 2. Fishermen indicated they could not support longer trawls unless they invested in a new vessel or vessel modifications. An analysis of risk reduction determined that this provided equal or better risk reduction. The final rule applies weak rope measures identical to the Massachusetts state measures for LMA 2 and does not require further trawling up. Similar concerns expressed by LMA 3 fishermen resulted in the implementation of trawling up restricted areas with varying trawling up requirements. Conservation equivalency measures provided by Maine fishermen and Maine DMR allow fishermen to choose between different trawl lengths with one or two buoy lines, or use more weak inserts instead of trawling up based on fishing practices in the Maine lobster management zones.

Comment 2.9:
Does the economic analysis of gear conversion take into account the replacement savings of current gear that is nearing the end of its lifespan?

Response:
We have revised our analysis to include this in the FEIS. Since it is difficult to estimate the life stages for all gears in the regulated areas, we applied new gear prices for current gear requirements in the DEIS.

When vessels modify their gear configurations by trawling-up to add more traps between trawls, they can save some gear costs from the reduction in surface system like buoy lines, buoys and radar reflectors. These savings are calculated using new gear prices.

For weak rope measures, in Alternative 2 (Preferred) and the final rule, weak rope can be inserted into current ropes, so no large-scale replacement of buoy lines is needed. Estimated costs of inserts assume the rope or sleeve is new. In Alternative 3, which requires fully engineered weak rope to replace the current rope, the compliance costs would be the difference between fully weak rope and regular rope. We also use new gear prices for both ropes.

Comment 2.10:
Fishermen should be compensated for the time it takes to mark all the gear.

Response:
Currently there is no mechanism by which NMFS is able to compensate fishermen for gear marking costs. A program of that nature would require Congressional appropriations. Similar programs have been made available to fishermen in the past. Note that effective gear marking could help fishermen and the government avoid additional regulatory burden in the future by better identifying areas where interactions are likely and unlikely to occur.

Comment 2.11:
The costs of lost gear from new weak rope requirements should have been considered in the evaluation of economic effects.

Response:
We discussed this issue qualitatively in FEIS Section 6.2.6.1.

Comment 2.12:
The economic impacts of gear marking, including the time already spent marking gear, should have been included in the economic impact analysis because the rules were implemented in direct anticipation of the Proposed Rule.

Response:
Other than the gear marking costs for fishermen fishing within Maine Exempt waters, who will be regulated by the state of Maine, we revised the analysis to include estimates of the gear marking costs (both material and labor costs). This revision is in response to public comments correctly noting that Maine implemented gear marking measures in anticipation of this final rule. However, improved information regarding the location of large whale entanglement related mortalities and serious injuries may allow future tailoring and reduced economic impacts of regulations.

Comment 2.13:
The evaluation of the economic effects of this rule should have included all parts of the supply chain, such as lobster processors, dealers, gear suppliers, trap builders, rope and line manufacturers, and restaurateurs.

Response:
We quantitatively evaluated the economic impact of the final rule as it applies to the lobster and Jonah crab trap/pot fisheries in the Northeast. We recognize that these changes could impact the broader supply chain, as well as local communities and economies in ways that are not easily quantifiable. In FEIS Section 6.7.2.2, we include a qualitative evaluation of the socioeconomic impacts to fishing communities.

Comment 2.14:
Fishermen should get economic assistance/subsidies to cover the costs of gear changes and lost revenue.

Response:
Given the vast amount of industry input into the development of weak insertions, which would not require fishermen to replace buoy lines, and trawling up measures, many gear modifications implemented in the final rule were created to control costs. However, the economic analysis in Chapter 6 indicates the first-year cost of this rulemaking is $9.8 to $19.2 million, which is 3 percent of the landings value of the lobster fishery in 2019. Some of those costs are likely to be passed on to

the consumer but economic impacts to fishermen are anticipated.

In December 2019, $1.6 million in Federal funds were reprogrammed to support recovery actions for the North Atlantic right whale in the lobster/Jonah crab trap/pot fishery. The funds were made available to fishermen through our partnership with the Commission. The funds were obligated to the Commission and have been distributed to Maine, New Hampshire, Massachusetts, and Rhode Island to assist the lobster/Jonah crab trap/pot fishery in adapting to and comply with the measures in this final rule and to help defray costs to support affected fishermen broadly. Maine and Massachusetts have used funds to improve reporting (Maine) and to support a gear liaison to collaborate with fishermen to develop and test weak insertions. New Hampshire and Rhode Island plan to use funds to purchase rope for fishermen once the rule becomes effective. At this time additional funds have not been appropriated by Congress or further reprogrammed to reimburse fishermen.

Comment 2.15:
NMFS should reevaluate the use of Automatic Identification Systems (AIS) to track vessel locations and movements, and not dismiss it from consideration as an alternative based on expense.

Response:
NMFS supports the collection of high-resolution spatial data in the lobster fishery and intends to continue to work with the Commission, through their technical working group, to develop data collection objectives and requirements, while balancing the financial burden to industry. Included in ongoing discussions are specifications needed to determine whether options less expensive than AIS systems can be used effectively. A basic vessel tracking system costs between $500 and $1,300, while a more advanced AIS system costs between $750 and $3,500. AIS devices also have ongoing operating costs. In relation to the overall size and value of the lobster fishery (approximately $600 million), for example, the cost of vessel tracking technology is small in light of the benefits it provides in the form of real-time fishery monitoring as well as safety to prevent vessel collisions. We anticipate continued investigation into the appropriate vessel tracking specifications to meet the needs for lobster and right whale management and, if appropriate, would pursue rulemaking within the next few years to require vessel tracking for federally permitted vessels fishing for lobster.

Many lobster vessels are smaller than 65 feet and therefore not currently required by law to carry AIS. While the individual cost of AIS systems are low compared to the value of the fishery, outfitting the entire fleet with AIS would not be a cost effective approach to monitoring, due to the trap-setting nature of the fishery. Other vessel tracking methods are being piloted by the Commission that are more responsive to tracking the movements of lobster boats, such as setting and hauling back. NMFS will work with them to regulate this monitoring approach.

Comment 2.16:
In doing its economic analysis, NMFS did not consider the ecological value of right whales, and the role they play in a healthy environment, including their role in carbon sequestration.

Response:
In Section 9.6.1 of the DEIS, we discussed the value of large whale protection in non-consumptive use benefits and non-use benefits. We provided the total expenditure of the whale watching industry as a proxy for non-consumption use value, and we provided a list of research results on the willingness to pay for whale protection programs from society as a proxy for the non-use value. In FEIS Section 9.6, we revised our analysis to include recent studies on the ecological and economic value of large whales.

Comment 2.17:
The DEIS does not include a reference to the Meyers and Moore 2020 paper that suggests a reduction in effort brought about by time/area closures and removals of traps and lines from the water may reduce costs.

Response:
When we prepared the DEIS in spring 2020, this Meyers and Moore (2020) paper had not yet been published. We have updated the FEIS and this paper has been cited. See FEIS Section 6.5.1.

Comment 2.18:
The economic and social impacts analysis fails to consider the impact that the ongoing COVID-19 pandemic has had on demand for the fisheries. In the first six months of 2020, U.S. exports of lobster declined by 44.6 percent (FAO Globefish 2021) and that significant uncertainty regarding the duration and extent of these impacts remains.

Response:
The full consequences of COVID-19 on the U.S. lobster and Jonah crab trap/pot fisheries cannot yet be determined. In the first half of 2020, the U.S. fishing and seafood sector experienced broad declines due to COVID-19 protective measures instituted in March 2020 across the United States. While lobster fishing effort and demand for lobster were low in the first half of 2020, landings increased and prices rose as the year went on. Maine, the state that has the most active and valuable lobster fishery, reported preliminary data that indicated that the value of lobster landings in 2020 exceeded $400 million for only the seventh time (Maine DMR constituent email, March 24, 2021). The catch volume was reportedly 5 percent lower than 2019 landings but the vessel price was $0.44 higher per pound than the average price over the previous ten years. While the uncertainty caused by COVID-19 on communities that rely on lobster and other fisheries cannot be understated, in the Gulf of Maine, where lobster stocks are healthy, the fishery appears to be somewhat resilient.

Comment 2.19:
The costs of compliance fail to account for economic losses associated with shorter equipment durability and lifespan caused by the proposed weak ropes, insertions, and trawling up.

Response:
See the description of gear loss costs in Chapter 6, section 6.2.6.1. Gear loss is not included in the final costs estimation because the effect of trawling up on gear loss is unclear and not thought to be substantial. We also currently have no evidence that weak rope or weak inserts would cause significantly more gear loss. In a study of weak inserts conducted by New England Aquarium for the Massachusetts Office of Energy and Environmental Affairs, Knowlton
et al.
(2018) documented sleeves designed with reduced breaking strength breaking in only 11.8 percent of hauls relative to 8.5 percent of control buoy lines, which they did not find statistically significant. Some fishermen who have used the South Shore Sleeves for several years have incurred no significant increase in extra gear loss. NMFS will continue to test and evaluate the use of weak inserts to ensure they are not likely to contribute to an increase in ghost gear. See Section 5.3.1.3.2 for a description of the anticipated indirect effects of trawl length and weak rope measures, including the likelihood of gear loss. Also note that lobster landings dropped in 2020 due to COVID-19 but the 2020 lobster average price was the second highest in the past decade, about $4.4/lb.

Comment 2.20:
The DEIS exclusively uses the Federal dealer data to analyze the commercial impact to the industry, not the full value of the supply chain, and so underestimates the true cost.

Response:
For our analysis of the impacts on commercial fisheries, the dealer data provides the most accurate information. Although we have some information of the total economic value of the supply chain in Maine, it is difficult to estimate the impacts of the proposed rule on it. The biggest impact

on the supply chain from the rulemaking would be the short-term landing reduction. There could be some negative impacts in the near term, but also could benefit the industry in the long run. We discussed this issue briefly in FEIS Section 6.7.2.2.

Comment 2.20:
NMFS's economic analysis fails to properly consider that reduced effort does not equate to reduced catch.

Response:
For reduced effort in restricted areas, under the scenario where fishing is suspended, we assumed fishermen would lose all their revenue during the closed fishing period, which was the more conservative estimate. We recognize the costs could be overestimated in section 6.3.1.2 “Caveats”. Under the scenario where effort is relocated, we assumed a 5 percent to 10 percent landing reduction in the first year, and we also applied a decreasing rate of landing reduction for the impacts of restricted areas.

3.
Enforcement

About 14 commenters voiced concerns that this rule would be difficult to enforce, and 11 commenters including the United States Coast Guard, suggested that NMFS needs to develop a comprehensive enforcement plan for the areas affected by this rule. As noted in the FEIS, lobster trap/pot gear makes up the vast majority of buoy lines fished in the Northeast Region, making compliance with regulations paramount to the rule's ultimate success or failure in reducing right whale mortalities and serious injuries.

Comment 3.1:
NMFS should develop a comprehensive monitoring and enforcement plan to ensure compliance. One commenter stated that there is currently no enforcement in Massachusetts, New Hampshire, and LMA 3, and another stressed the importance of including states in the development of any enforcement plan.

Response:
State partnerships serve a significant role in effective regional enforcement activities. The Office of Law Enforcement-Northeast Division (OLE-NED) has Joint Enforcement Agreements (JEA) in place with ten New England and Mid-Atlantic coastal states (Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, and Virginia). The following states perform inspections of lobster gear in Lobster Management Areas: Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, and New Jersey. The following states perform inspections of black-sea-bass gear in Lobster Management Areas: Delaware, Maryland, and Virginia. OLE-NED has developed and implemented a pilot program using remotely operated vehicles (ROVs) to inspect offshore fishing gear, including in LMA 3. The pilot project will inform future offshore enforcement activities for ALWTRP compliance monitoring efforts Additional information on this pilot program is provided in response to Comment 3.2. OLE-NED has identified a number of elements to review, in partnership with the states and the United States Coast Guard, to help develop a more comprehensive enforcement strategy for the ALWTRP regulatory requirements. Appendix 3.5 of the FEIS provides a high-level overview of compliance monitoring plans and associated enforcement assets.

Comment 3.2:
Several commenters noted that enforcement in the offshore areas, particularly LMA 3, is sparse, and question whether Marine Patrol will be able to do gear inspections on longer trawls.

Response:
Traditional methods of hauling gear in offshore waters for compliance monitoring poses both safety and sustainability challenges. To meet these challenges, OLE-NED developed and implemented a pilot program using ROVs to inspect offshore fishing gear. OLE-NED has conducted offshore subsurface ROV surveys to check for sinking groundlines, gear markings, and weak links in previously uninspected areas. Gear tags were also inspected when possible. After initial trials, OLE has determined that ROV-based inspection of gear in the water is a safer and more efficient way to enforce offshore lobster gear requirements, rather than physically pulling the gear. The pilot project was carried out in FY2020 and FY2021, and will inform future offshore enforcement activities for ALWTRP compliance monitoring efforts.

Comment 3.3:
How will NMFS be able to enforce the different requirements in different areas, as fishermen move from area to area?

Response:
NOAA's Office of Law Enforcement partners with state agencies and the United States Coast Guard to enforce all applicable lobster regulations nearshore and offshore. Fishermen are required to adhere to the regulations in the areas they fish. In Maine Lobster Management Zones, where conservation equivalencies established by zone and distance from shore present the greatest enforcement challenge, the Maine Marine Patrol assured us that they use outreach, education, and enforcement to establish and maximize compliance, are very familiar with Maine's lobster management zones and boundaries, and that “. . . enforcement of most restrictive rules relative to lobster zones does not present any significant challenge . . .” (email from Erin Summers, April 20, 2021). Offshore enforcement poses challenges that enforcement partners have been evaluating in recent years. While OLE does not disclose specific law enforcement techniques, as discussed above, OLE has started deploying ROVs to inspect offshore gear. OLE welcomes and encourages the public to report violations to their hotline.

4.
Gear Marking

A total of 75 commenters supported gear marking, indicating that gear marking is the best way to determine where and in which fisheries entanglements occur, and potentially absolving other areas and fisheries of blame. Gear marking was universally supported by conservationists and fishermen. Several Maine fishermen commented that they had already completed their required gear marking, and many are expecting the results to show that Maine's lobster fishery does not entangle whales.

Comment 4.1
NMFS should give Maine's lobster fishery a three-year evaluation period to make sure that Maine's rope (now with purple marks) is not causing entanglements before adding any other requirements.

Response:
The results of Pace
et al.
2021 show that in the years 1990-2009, roughly eight right whales per year died, many unseen. Since 2010, on average 21 right whales per year have died. Recent observations indicate that the increase in mortality since 2010 is in part due to a significant amount of mortality in Canadian waters and/or from Canadian fishing gear. However, the sources of the unseen mortality (roughly eight whales per year) that has existed for decades remains uncertain and the effects of the Plan's measures cannot be evaluated (Pace et al. 2017) and likely has not reduced mortality and serious injury below one per year as required to meet MMPA goals.

If current trends continue, even accounting for a mean of 11 births per year over the last 10 years, we could expect to lose another 30 whales over the next 3 years, or 10 whales per year. Pace
et al.
(2021) estimates that approximately 368 right whales were alive at the end of 2019. At the current rate of decline, we would expect the 2020 population to be 358. If we wait 3 more years to implement risk reduction regulations, the population could be as low as 328. We are required by the

MMPA to take action now. See FEIS Chapter 1 for more information on the need for immediate action.

We expect gear marking and acoustic and aerial surveys to help us further identify the areas of most risk to right whales. Until we have additional information, we must regulate based on the best available science: Maine has the highest concentration of all vertical line gear in U.S. waters, and right whales are still using Maine waters.

Comment 4.2:
There should be an exemption for hand-hauled lobster traps in less than 100 feet of water, because when traps are pulled by hand, the vertical lines are not cleared of organisms on the rope as they would be when a pot hauler is used.

Response:
It is unclear what exemption is being requested by the commenter, as no exemption fitting this general description was included in the final rule. The request may be for an exemption from gear marking requirements because marks may be obscured by fouling. While this may reduce the ability to see marks from a vessel, gear marks would be detectable from line retrieved from a whale.

Comment 4.3:
We received comments from some who support the idea of individual ID tags that would allow NMFS to identify the fisherman whose gear entangles a whale, as well as from others who oppose individual ID tags.

Response:
Current regulations require buoys to be marked with information that can be traced back to individual fishermen. Buoy and individual line tagging technologies exist, but this method of marking comes at some cost and the benefits are unclear. Gear is not always recovered and often buoys or traps are not present on the entangled whale. Line marking technology, such as identification tape (
i.e.,
marker tape) that is woven into line, is expensive and is difficult to enforce without severing the buoy rope. Radio frequency identification and passive integrated transponder tags are also expensive, require standardized tag readers to adequately enforce, and in field trials have not held up well in commercial fishing conditions. As the technology improves and the costs are reduced, NMFS will continue to monitor the possibility of line identification tape. We are not requiring individual markings in this rulemaking.

Comment 4.4:
One commenter proposed dividing Massachusetts and Maine into smaller subdivisions with distinct markers to allow NMFS to develop more accurate and targeted marine policy, and another suggested weak rope should be marked or colored to identify it as weak rope.

Response:
Current regulations include some small zones of multiple colored marks but given the rarity of gear retrieval, the value of small area marking requirements is not yet proven. Gear marking is one of the most expensive elements within the proposed regulations and increasing complexity adds expense without proven benefits or any risk reduction. Regarding requiring weak rope to be identifiable with a color or marking scheme, NMFS does not regulate rope manufacturers. However, we are asking them to create intentionally engineered weak rope with a tracer or a strand of a contrasting color. Weak insertion approval has included a requirement of a contrasting color to allow both enforcement and disentanglement teams to recognize the weak insertion.

Comment 4.5:
NMFS should not require any additional gear marking beyond what is already in place.

Response:
Currently, the majority of gear recovered has no identifiable marks and until Maine established gear marking requirements in Maine exempted waters, over half of all U.S. buoy lines were unmarked. In order for the ALWTRT to make better recommendations, including those that could allow more targeted gear modifications and closures, the Team needs a better understanding of the types and locations of rope that entangle whales. The more robust gear marking scheme included in the final rule, including some markings largely supported by the ALWTRT and states, should increase our ability to identify the gear, and subsequently, identify more targeted and more effective measures to reduce entanglements.

Comment 4.6:
Gear marking should be required for all fisheries in the right whale migratory path.

Response:
The ALWTRP covers commercial fisheries within the right whale migratory path from Florida to Maine. While, historically, the majority of gear recovered from right whale entanglements has been unknown, state regulations and the final rule expand the gear marking schemes substantially for the lobster/Jonah crab fishery, which contributes the vast majority of vertical lines in these waters. The new gear marking requirements should increase the frequency with which we encounter gear marks on recovered rope from entanglements and enable visual identification of state of origin from aerial and vessel-based platforms. The ALWTRT has begun meeting to develop recommendations related to reducing the risks posed by other U.S. fisheries in right whales range. In recent years, Canada has also implemented gear marking requirements for Canadian lobster and snow crab fisheries.

Comment 4.7:
NMFS should require gear markings every 17 fathoms, so that gear markings will be at the same intervals regardless of the total length of the rope.

Response:
The large number of different fisheries operating at various depths managed under the ALWTRP makes it difficult to implement a single gear marking structure. For those fisheries occurring in deep offshore waters, this rule more than doubles current gear marking requirements but may not result in marks as frequent as every 17 fathoms (31 m). However given the large number of buoy lines in shallower waters, one marking every 17 fathoms (31 m) would be a reduction in gear marking compared to what we have in the final rule.

Comment 4.8:
Several commenters suggested that sinking groundlines should be marked to distinguish them from vertical lines, while others supported not requiring any gear marking on sinking groundlines.

Response:
Groundline marking has not been extensively discussed by the ALWTRT in recent years. Under current ALWTRP and in this final rule, no gear marking will be required for sinking ground lines.

Comment 4.9:
Why are the gear marks required to be 3 feet long (0.91 m), and would that be useful in murky water?

Response:
Gear marking and fishery identification relies mainly on recovering gear from entangled whales, making the water clarity a negligible component of gear identification. However, the proposed larger 3-foot (0.91 m) mark within 2 fathoms (3.65 m) of the surface system should help identify gear from vessel and aerial platforms, as the surface system will keep the line in relatively clear water. The mark could also provide useful information for disentanglement teams, and may allow gear identification in cases where whales are photographed, but not seen again.

Comment 4.10:
Any final rule should include requirements for all buoy lines to be marked the full length of the vertical line, or at the very least, markings every 40 feet, and in such a way that the location of where gear was set can be known even in cases when a buoy is not seen or retrieved.

Response:
The final rule increases the number of marks with additional distinction between Federal and state waters, offering better spatial resolution than those in the Proposed Rule. The marks will also be longer in length to increase the likelihood that a mark will be spotted without a buoy. However, it

was determined that marking every 40 feet would be costly without a commensurate benefit given that since 2010 gear has only been retrieved from about 40 percent of the observed right whale entanglements.

Comment 4.11:
Time consuming gear marking regulations should be implemented during the off season, as otherwise gear making will reduce the time available for fishing.

Response:
We recognize this issue, and this rule will include a delayed implementation date to allow time during slow seasons as practicable for gear configuration and gear marking changes.

Comment 4.12:
Can we alert whales to the presence of ropes with visual or acoustic cues?

Response:
Research conducted by Kraus, Fasick, Werner and McFarron (2014), and Kraus and Hagbloom (2016), suggested that red and orange lines may be visually detectable by North Atlantic right whales at greater distances than other colors although it is unclear to what depths color can be detected or whether detection results in avoidance. For more information on gear marking measures included in this rule, please see Table 3.3. Unlike toothed whales that use echolocation to sense their surroundings, baleen whales like right whales are not detecting fishing gear acoustically and acoustic cues are unlikely to result in gear avoidance in the same way that pingers have been successful at reducing entanglements of harbor porpoises, for example.

5.
Legal Issues

Approximately 28 commenters believe that the Proposed Rule violated the requirements of the MMPA, the ESA, the National Environmental Policy Act (NEPA), and/or the Administrative Procedure Act (APA). Most of these concerns were raised by NGOs, including but not limited to: Whale and Dolphin Conservation, Oceana, Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, Humane Society of the United States, Natural Resources Defense Council, PEER, Clearwater Marine Aquarium, Georgia Aquarium, Southern Environmental Law Center, as well as the Maine Lobstering Union, and many Federal and state legislators.

Comment 5.1:
NMFS refusal to evaluate some strategies, including but not limited to certain trap reductions, weak line enhancements, static area closures, and gear marking strategies, was “arbitrary and capricious” under the APA.

Response:
The development of the Proposed Rule was the result of an extensive public process involving challenging negotiations within the ALWTRT and ample opportunity for public input as prescribed by the MMPA, NEPA, and the APA.

Many options were considered, deliberated, and evaluated by the ALWTRT, the public, and NMFS, and some were modified or eliminated from further consideration as the process unfolded. Where the measures considered in the final rule would also affect state fisheries, the input of state fisheries agencies was important to ensure that conservation measures were feasible and safe in the various locations in which they would apply. State scoping and outreach helped inform the rulemaking efforts, and helped identify the measures that would be given extensive consideration in the NEPA process.

The final rule and FEIS reflect this extensive involvement by the numerous stakeholders and considered a reasonable range of alternatives.

Comment 5.2:
Proposed rule and DEIS violated Executive Order (E.O.) 12898 by not reviewing issues of environmental justice, particularly for Maine's Washington County.

Response:
E.O. 12898 requires agencies to consider whether their actions result in disproportionately adverse human health and environmental impacts on minority or low income populations. The DEIS addressed E.O. 12898 by examining the various counties affected by the ALWTRP rulemaking, and concluding that minority and low impact communities will not be disproportionately affected.

While Washington County has higher than state average low income and minority populations, Washington County is not disproportionately affected by adverse health and environmental impacts from the rulemaking when compared to other counties. Where the impacts of the ALWTRP rulemaking extend over a large area across multiple states, the county level is an appropriate level at which to assess whether the rulemaking would result in disproportionate impacts.

The commenter's concerns appear to be economic in nature, as opposed to adverse human health and environmental impacts, which are the focus of E.O. 12898. See FEIS Section 10.12 for a complete analysis of this rule as it pertains to E.O. 12898.

Comment 5.3:
NMFS' authorization of lobster and Jonah crab trap/pot fisheries violates the ESA by allowing entanglements.

Response:
NMFS has satisfied its obligations under the ESA by reinitiating consultation on the operation of Federal fisheries under eight Federal fishery management plans and two interstate fishery management plans, which was completed on May 27, 2021, and consulting on the amendment of the ALWTRP itself, which was completed on May 25, 2021.

The ALWTRP does not authorize fisheries. NMFS disagrees with the commenter's claims that the ALWTRP “allows” entanglements. The ALWTRP does not state that entanglements are allowed, nor does it prevent fishermen from taking actions to avoid or prevent entanglements beyond what is required by this rule.

Comment 5.4:
Allocating the full PBR to the trap/pot fishery violates the MMPA.

Response:
MMPA Section 118 directs NMFS to develop take reduction plans to reduce the incidental mortality and serious injury of marine mammals incidentally taken by commercial fishing operations to levels less than a stock's PBR level. Section 118 does not address other sources of human-caused mortality (
e.g.,
vessel strikes) and those other causes are not considered in the goals of the take reduction plan. The short-term goal of a take reduction plan is to reduce incidental mortality and serious injury of each marine mammal stock to below the stock's PBR in the commercial fisheries addressed by the plan, with a longer term goal of reducing incidental mortality and serious injury to 10 percent of a stock's PBR taking into account economics, available technology, and existing fishery management plans. NMFS has already reconvened the ALWTRT to develop recommendations for gillnet and other trap/pot fisheries.

Additionally, the FEIS analyzes other sources of impacts on right whales. Although beyond the scope of this rule, NMFS has identified evaluation of current measures to protect right whales from vessel strikes, as well as research into factors affecting health and abundance, collaboration with Canada on range-wide recovery efforts, and consideration of emerging threats as 2021 to 2025 priority actions in the right whale 5-year Species in the Spotlight action plan.

Comment 5.5:
The Proposed Rule violates the MMPA by considering economics as a factor when choosing the preferred alternative.

Response:
The commenter argues that NMFS is prohibited from considering the economic impacts of measures to be implemented in a Take Reduction Plan unless such measures are part of the

MMPA's long-term goal of reducing mortality and serious injury to insignificant levels approaching a zero mortality and injury rate (often referred to as ZMRG). However, the distinction drawn by the commenter does not accurately reflect the statute. Under the MMPA, to reach the long-term goal requires the TRP to take into account the economics of the fishery, the availability of existing technology, and existing state or regional fishery management plans. The portion of the MMPA discussing the short-term goal of reducing mortality and serious injury to below a stock's PBR does not use this language. However, that does not mean that economics, technological limitations, and state or regional fishery management plans cannot be part of the consideration as to which measures should be chosen to achieve the short-term goal. Here, NMFS developed a 60-80 percent risk reduction target based on the latest PBR calculations and estimates of mortality and serious injury, and the ALWTRT developed recommendations based on this target. In choosing between measures that will accomplish the goal of reducing mortality and serious injury below PBR, the MMPA does not prohibit the consideration of economics, and here the agency's choice of measures to include in the final rule balances various factors, but does not do so at the expense of the risk reduction target to reach the short-term goal.

Comment 5.6:
The Proposed Rule violates MMPA by not meeting ZMRG within 5 years.

Response:
Under section 118 of the MMPA, NMFS is required to meet both the short and long-term take reduction plan goals of reducing mortality and serious injury incidental to commercial fishing operations. The short-term goal is to reduce mortality and serious injury to below a stock's PBR, while the long-term goal is to reduce mortality and serious injury to insignificant levels approaching a zero mortality and serious injury rate (
i.e.,
ZMRG, defined as 10 percent of PBR in 50 CFR 229.2), taking into account the economics of the fishery, availability of existing technology, and existing state or regional fishery management plans.

Due to the continued entanglements of large whales in commercial fishing gear, NMFS is required to take additional action to further reduce mortality and serious injury incidental to commercial fisheries covered by the ALWTRP. NMFS will continue to discuss future plan modifications with the ALWTRT and has already reconvened the Team in light of these goals.

Comment 5.7:
The Proposed Rule violates MMPA by not reducing PBR in six months.

Response:
The MMPA created a framework for developing and issuing take reduction plans, monitoring the plans regularly, meeting with take reduction teams regularly, and amending plans if necessary to meet the goals of the MMPA. NMFS' actions have been consistent with the process laid out by the MMPA.

The first ALWTRP was issued in 1997, and NMFS has modified the ALWTRP numerous times since, with input from the ALWTRT to further the MMPA goals of reducing mortality and serious injury of large whales incidental to commercial fisheries.

As we state in the preamble to the final rule, for the purposes of creating a risk reduction target, NMFS assigned half of the right whale entanglement incidents of unknown origin to U.S. fisheries. Under this assumption, a 60 percent reduction in mortality or serious injury would be needed to reduce right whale mortality and serious injury in U.S. commercial fisheries, from an observed annual average of 2.2 to a PBR of less than one whale per year. See Chapter 2 of the FEIS for our revised analysis of PBR.

Comment 5.8:
These additions to the ALWTRP may not prevent the continued decline of right whales.

Response:
NMFS tasked the ALWTRT with developing measures to reduce risk of entanglement to meet the MMPA's goals that fisheries mortality and serious injury should be below PBR. It is not within the agency's discretion to disregard PBR, and the current rulemaking is the agency's attempt to reduce the risk of mortality and serious injury from the Northeast lobster and Jonah crab trap/pot fisheries to comply with the MMPA. That such measures in and of themselves may not result in recovery of the right whale population does not mean that NMFS can disregard the statutory direction of the MMPA.

Comment 5.9:
State measures should be included in the final rule.

Response:
NMFS agrees that the MMPA authority applies in both state and Federal waters. Many state measures are included in the final rule, including Massachusetts weak insertion requirements and extension of the MRA north to the New Hampshire border. Because dynamic management is difficult to accomplish under Federal procedural requirements and such measures were not part of the proposed rule, the Massachusetts extension of the state water closure into May was not included. Other Massachusetts measures, such as a maximum state water line diameter, were not included because they were not analyzed or part of the proposed rule.

Comment 5.10:
NMFS “Purpose and Need” statement is too narrow.

Response:
The Purpose and Need chapter of the FEIS states that the measures need to achieve a risk reduction of at least 60 percent, rather than an exact risk reduction target, and therefore, it was not meant to constrain the risk reduction to a specific number. Rather, this is the minimum target needed. Both of the action alternatives considered in the DEIS met the Purpose and Need. The Alternatives have been modified in the FEIS.

The Alternatives were selected because, using the Decision Support Tool, these suites of measures, which include ongoing and anticipated fishery management measures, measures that will be regulated by Maine and Massachusetts, and the benefits of the MRA, are estimated to achieve or exceed a 60 percent risk reduction necessary to reduce impacts to right whales to below the PBR level of 0.8 mortalities or serious injuries per year based on observed incidents. Thus, mortality and serious injury of right whales in U.S. fishing gear must be reduced by 60 percent (documented) to 80 percent (estimated) to achieve the MMPA goal of reducing fishery-related incidental mortality and serious injury to below the right whale PBR.

For more information on the Decision Support Tool and the input data, assumptions, and uncertainty please see FEIS Appendix 3.1.

In terms of the ESA, the final rule has been identified as a first anticipated step in the adaptive management approach within the conservation framework in the Section 7 Consultation on the authorization and permitting of a number of Federal fisheries, including lobster and Jonah crab. Additionally, a consultation on the ALWTRP which included the implementation of final rule determined that the gear regulations implemented by the Plan for U.S. fixed gear fisheries including those measures in the final rule will have wholly beneficial effects to ESA-listed species or their critical habitat and therefore the Plan is not likely to adversely affect ESA-listed species or designated critical habitat.

Comment 5.11:
NMFS cannot rely on CEQ's recent amendments to NEPA.

Response:
Because the Notice of Intent to prepare an Environmental Impact Statement (84 FR 37822, August 2, 2019) was published prior to September 14, 2020, this action was prepared under the NEPA regulations first implemented in 1978. Text has

been added to the Purpose and Need section (FEIS Section 2.2) to reflect this. As written, the FEIS addresses direct and indirect impacts in Chapter 5 (Biological Impacts), Chapter 6 (Economic and Social Impacts), and Chapter 7 (Summary of Biological, Economic, and Social Impacts). Cumulative Effects are addressed in Chapter 8, which also summarizes the direct and indirect impacts of the action as well.

Comment 5.12:
NMFS failure to consider a “no commercial fishing” alternative is in violation of NEPA.

Response:
Not allowing any commercial fishing is not a reasonable alternative under NMFS' regulatory responsibilities, namely the Magnuson-Stevens Act, and does not meet the Purpose and Need of the action nor the goals of the Plan. Per the agency's mission, NMFS is responsible for the stewardship of the nation's ocean resources and their habitat. We provide vital services for the nation: Productive and sustainable fisheries, safe sources of seafood, the recovery and conservation of protected species, and healthy ecosystems—all backed by sound science and an ecosystem-based approach to management.

Comment 5.13:
NMFS did not evaluate a reasonable range of alternatives or all reasonable measures in violation of NEPA.

Response:
The development of the Proposed Rule was the result of an extensive public process involving the ALWTRT as prescribed by the MMPA, NEPA, and the APA. Many alternatives were considered, deliberated, and evaluated by NMFS, the ALWTRT stakeholders, and the public, but some were eliminated from further consideration as the process unfolded. For example, while the non-preferred alternative considered a reduction and cap on buoy lines, achieving that reduction specifically through a large reduction in the number of traps allocated to fishermen or through a reduction in the number of permits issued was not analyzed despite studies that suggest that trap reductions may not substantially or over the long term reduce lobster landings and would reduce operational costs to fishermen (
e.g.,
Myers and Moore 2020; Myers
et al.,
2007). These measures were not included in large part due to failed efforts to establish effort reduction measures with the primary fishery management body responsible for lobster fishery management, the Commission, demonstrating the complexity of developing these measures in a fishery with varied state reporting requirements. There was also strong opposition from the regulated community, most notably when Maine DMR attempted to develop this option through Maine Zone Council meetings. Strong industry opposition to measures that would require consideration of fishing histories and landings data would further extend the rule development and implementation timeline and compromise compliance.

Additionally, trap reduction would not in itself necessarily reduce buoy line numbers. Increasing the minimum number of traps per trawl would still be required in conjunction with trap reductions, otherwise fishermen could use trawls with fewer traps resulting in no decrease in vertical buoy lines. While some commenters raised concerns about additional weight associated with more traps per trawl and stronger buoy lines, weak insertions required in all buoy lines regulated under this rule would provide for breakable buoy lines. This example demonstrates the complex interrelationship of many of the measures analyzed and adopted or rejected, although given the large volume of comments not all measures provided in scoping and comments on the proposed rule were analyzed.

Where the measures considered here would also affect state fisheries, the input of state fisheries agencies was important to ensure that conservation measures were feasible and safe in the various locations in which they would apply. As such, state scoping and outreach helped inform the rulemaking, and measures given extensive consideration in the NEPA process. The FEIS reflects this extensive involvement by the numerous stakeholders and contains a reasonable range of alternatives for the agency and the public's consideration. The Alternatives were selected because, using the Decision Support Tool, they achieve or exceed a 60 percent risk reduction necessary to reduce impacts to right whales to below the PBR level of 0.8 serious injury or mortality per year.

Comment 5.14:
NMFS rejected trap reductions in violation of NEPA.

Response:
While agencies shall include reasonable alternatives not within the jurisdiction of the lead agency, these trap reduction strategies were not considered reasonable under the Purpose and Need due to multiple factors. They are complex, time-intensive, and carry a large administrative burden. For example, implementing a line or trap cap would require pinpointing accurate data sources, identifying qualifying criteria, outlining an allocation method, and engaging the industry, on top of managing current measures. Given the need for rapid rulemaking and conservation measures, these trap reduction strategies are not currently cost effective, nor could they be implemented in a timely manner. For more information on trap reduction strategies undertaken by the Commission, see also response to Comment 5.14, above, and comment 6.4, below.

Comment 5.15:
DEIS did not analyze all risks in concluding the rule will reduce mortality and serious injury below PBR in violation of NEPA and APA.

Response:
In accordance with NEPA, as part of its cumulative impacts analysis, the DEIS described impacts to right whales and other large whales from various anthropogenic sources, including vessel strikes, aquaculture, and offshore energy development. However, attribution of sources of mortality in the PBR framework is not a legal requirement of NEPA, but of the MMPA. Section 118 of the MMPA directs that NMFS develop take reduction plans to reduce the mortality and serious injury of marine mammals incidental to commercial fishing operations to levels less than PBR for the marine mammal stock. While the DEIS did address other sources of impacts on right whales, the MMPA does not mandate that take reduction plans must reduce incidental mortality and serious injury from fisheries to levels that would accommodate mortality and serious injury from other anthropogenic sources within PBR. In other words, NMFS does not apportion PBR; PBR is a reference point that serves as the short-term goal for a take reduction plans and also alerts NMFS to take management actions needed to reduce all sources of human-caused mortality so that we can meet the overarching MMPA goal of recovering marine mammals to their optimum sustainable populations.

Comment 5.16:
NMFS did not consider dynamic area management as required under NEPA and APA.

Response:
The commenter is correct that in the past the take reduction plan included dynamic closure measures. Such measures were found to be problematic with the fixed gear lobster fishery, and so were not considered in this final rule. When a closure is made gear cannot be removed instantaneously, and factors such as weather and sea conditions affect the timing of gear removal. Dynamic closures must allow for safety concerns, which make them less effective from a conservation perspective, as such delays can result in gear remaining after whales

are sighted, and may also result in a situation where, by the time fishermen are able to remove their gear, the whales may have already left the area subject to the closure. Further, while Canada began using dynamic closures in 2018 as part of its right whale conservation effort, in 2019 there were twelve Canadian right whale mortalities despite these measures. See Comment 9.2 under Restricted Areas and Borggaard
et al.
(2017) for further discussion of dynamic management.

Comment 5.17:
Proposed rule violates MMPA and ESA because regulations are not effective and immediate.

Response:
The MMPA take reduction rulemaking process is subject to procedural requirements arising from the APA, MMPA, NEPA, and ESA that make “immediate” protections in the form of a Take Reduction Plan amendment a legally difficult proposition. While there are circumstances in which MMPA emergency rulemaking authority may be exercised, as described in more detail in response to comment 7.5, NMFS has not concluded that this would be appropriate here, and even if this authority were used it would not allow for “immediate” protections, as there are other non-MMPA procedural steps that must occur. NMFS has undertaken the current rulemaking process using the best available scientific information while engaging with various stakeholders in the take reduction team process to develop effective conservation measures to reduce entanglements of right whales in Northeast lobster and Jonah crab trap/pot fisheries.

Comment 5.18:
NMFS did not use the best scientific information available in violation of NEPA, MMPA, and ESA.

Response:
The rulemaking process unfortunately cannot react instantaneously as new information comes to light. The MMPA take reduction planning process requires the involvement of numerous stakeholders in the TRT in the development of conservation measures, followed by the required NEPA and APA processes. At all points, however, NMFS uses the best available scientific information to inform its decisions, and when the TRT was reconvened, NMFS developed a 60-80 percent risk reduction target based on the latest PBR calculations and estimates of mortality and serious injury.

As NMFS prepared to publish the DEIS and Proposed Rule, new information regarding North Atlantic right whale population came in the form of preliminary estimates from the NMFS Northeast Fisheries Science Center in the fall of 2020. These estimates have since undergone additional review, and are being incorporated into the North Atlantic right whale stock assessment that includes a new PBR calculation, a process that includes public notice and comment. This new information is included in the FEIS.

Comment 5.19:
The proposed regulation is not only unconstitutional, but a direct attack on the citizens and sovereignty of the state of Maine. You should refrain from implementing this regulation.

Response:
NMFS is acting in accordance with direction from Congress under the MMPA and other applicable laws. See FEIS Chapter 10.

6. Line/Effort Reduction

At least 34 commenters were in favor of effort reduction through trap limits, line caps, and buybacks, as a way to reduce the number of vertical lines in the water, thus reducing risk to right whales, while a few were against any effort reduction measures. Maine DMR noted that the administrative burden of a line cap system is also something that has deterred them from pursuing this management measure. Several commenters pointed out that, due to latent effort, NMFS' assumptions on effort may be artificially high, though Maine's DMR stated that the latent effort calculations were consistent with their view. Some commenters suggested that fewer fishermen are entering the fishery, leading to a natural reduction in effort, and therefore line reduction was already taking place, which would contribute to the risk reduction goals of the final rule.

Comment 6.1:
NMFS should review the amount of latent effort in the fishery, and ensure that latent effort is properly accounted for in determining the risk reduction value of any measures.

Response:
Since the collapse of the Southern New England (SNE) lobster stock, the Commission has taken action to attempt to address latency in LMA 2 and 3. The Commission's Lobster Management Board initiated Addendum XVIII to scale the SNE fishery to the diminished size of the SNE lobster resource with a consolidation program aimed at addressing latent effort (unfished allocation) and reductions in traps fished. Addendum XVIII included an approximate 50 percent trap reduction in LMA 2 implemented over 6 years and an approximate 25 percent trap reduction in LMA 3 implemented over 5 years. These trap reductions concluded in fishing years 2020 and 2021.

Given that the Gulf of Maine/Georges Bank (GOM/GB) lobster stock (overlapping with LMA 1, 3, and the Outer Cape) is at a near time series high for abundance, we can assume that the amount of latency is comparatively lower than that found in SNE. As discussed in Chapter 5 of the FEIS, positive market and lobster stock conditions for the GOM/GB stock incentivize fishermen to increase fishing effort and may encourage inactive fishermen to reenter the fishery. For that reason, it is likely that fishermen in the Gulf of Maine have been fishing at a high capacity in recent years. Maine, which accounts for the majority of permits issued in the Gulf of Maine, submitted data on latency rates of state permits (Appendix 3.2 of the DEIS), indicating a stable number of latent permits over the last 10 years (2008-2018). Of its approximately 6,000 permits issued, approximately 1,500 permits have no reported purchased landings and are considered latent. While other jurisdictions have not completed similar analyses, latency rates are likely similar.

Given the actions to reduce latency in LMA 2 and 3, the relatively low but stable amount of latency in LMA 1, and the current fishery incentives given high abundance in the Gulf of Maine, fishery data included in the Decision Support Tool are considered accurate and representative of existing fishery conditions, including existing rates of latency. See FEIS Chapter 5 for more details.

Comment 6.2:
A range of views were expressed on the Non-preferred Alternative of capping buoy lines. One comment stated that NMFS should choose its Non-preferred Alternative of capping buoy lines at 50 percent of the average monthly lines fished in Federal waters in 2017. Another expressed opposition to it, citing that Massachusetts is the only state where end lines are accurately counted or regulated, and it would be time and labor-intensive to develop such a system across the other states without funding or capacity to do so.

Response:
Regulating buoy lines was analyzed in the DEIS and the FEIS as an element within the Non-preferred Alternative 3, taking an alternate approach to achieving risk reduction across the proposed areas that would reduce line numbers while allowing fishermen to respond to the reduction according to their preferences and individual operational capacity. Alternative 3 would cap the total number of lines available for trap/pot fishing in Federal waters to 50 percent of the average baseline number of lines (2017) outside of state waters. Because this was not a Preferred Alternative, the exact regulatory mechanism for

implementing a line cap was not identified. It was assumed, however, that NMFS would work with the Commission and New England states to qualify the number of buoy lines based on an April 29, 2019, control date (84 FR 43785, August 22, 2019) using vessel trip reports or, for Maine, other data sources to distribute allocations of line tags to fishermen.

NMFS did not select this Non-preferred Alternative because development of a buoy line control program would be time- and labor-intensive and come at a substantial cost to the industry. The Commission process, including soliciting public feedback, requires, at a minimum, approximately six months to develop an adaptive management action. Larger, more controversial actions can take 8 to 18 months. One commenter is likely correct that, given the lack of mandatory vessel trip reports in the Federal lobster fishery in the baseline year of 2017, the Commission would have had to rely on state data as the best scientific information available to develop a qualification program through an addendum.

Given the variable data regarding individual fishermen's lobster fishing histories due to inconsistent state and Federal reporting requirements, this would be a large and controversial action. Even once approved by the Commission, additional time would be required for NMFS to undertake a Federal rulemaking and associated analysis. The FEIS estimates that a 50 percent reduction of buoy lines in Federal waters would alone achieve an average 45 percent risk reduction in Federal waters with economic impacts ranging from $3.9 to 13.4 million. The combined set of measures included in the preferred alternative was projected to achieve a 69 percent risk reduction at a cost of $9.8 to $19.2 million in the first year of implementation. Given implementation challenges, the economic impacts of this preferred alternative and the fact that the preferred alternative achieves the stated risk reduction target, buoy line reductions will not be implemented in the final rule.

Comment 6.3:
States should cap and reduce the number of licenses, and reduce risk to right whales.

Response:
Through the Commission's Interstate Fishery Management Plan for American Lobster, states and NMFS have made substantial efforts at capping the number of permits and traps authorized in the lobster fishery, which serves as a primary effort control. The concept of controlling lobster fishing effort by limiting access to historical participants began in 1994 when NMFS generally limited access into the Federal lobster fishery to those who could document participation in the fishery before 1991 (59 FR 31938, June 21, 1994). Years later, in August 1999, the Commission passed Addendum 1 to Amendment 3 to the Interstate Plan, which limited access to Lobster Conservation Management Areas 3, 4, and 5 to only those who could document fishing history in those areas. Subsequent Commission addenda similarly attempt to control effort by limiting access to other

Areas:

2
All Addenda can be found at
www.asmfc.org,
under Interstate Fisheries Management, American Lobster.

3
New England Fishery Management Council document. This action occurred prior to the 1999 transfer of Federal lobster management to the Commission under the Atlantic Coastal Act.

Table 4—Actions Under Interstate Fishery Management Plan for American Lobster

Lobster conservation management area

Commission action
2

Corresponding Federal action

EEZ

March 1994—Amendment 5
3

June 21, 1994 (59 FR 31938)

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

LMA 2

December 2003—Addendum IV
4
February 2005—Addendum VI
November 2005—Addendum VII

April 7, 2014 (79 FR 19015)
May 10, 2005 (70 FR 24495)

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

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

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

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

Outer Cape Cod

February 2002—Addendum III
May 2008—Addendum XIII

April 7, 2014 (79 FR 19015)

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

The Commission

has used a similar step-by-step approach in all of the areas. First, participants are qualified based upon their ability to document a history of fishing within the area. Second, those who qualify are allocated some number of traps within a given management area, based upon their ability to document the level of past fishing effort in the area.
5

These addenda have largely required that states implement similar limited access programs (with the exception of LMA 1, where recommendations were for the Federal fishery only).

4
Addendum IV was rescinded in Addendum VI and then revised and approved in Addenda VII and XII.

5
Through various addenda to the ISFMP for American lobster, history-based effort control plans based on fishery performance have been enacted by NMFS (LCMAs 1, 3, 4, and 5) and states (MA in Outer Cape Cod; NY and CT for LCMA 6; and MA, RI, CT, & NY for LCMA 2).

The Commission Interstate Plan has not included reductions to the number of permits issued in the lobster fishery. However, since area qualifications were implemented, the number of Federal permits issued in each area has either held steady or declined. The 2020 American Lobster Benchmark Stock Assessment summarized state and Federal permits issued in the lobster fishery, with approximately 1,400 fewer permits being issued in 2018 than in 2010. Further, the Commission has approved numerous actions that reduce area-specific maximum trap caps or reduce the number of traps allocated to each permit. Most recently, Addendum XVIII required an approximate 50 percent trap reduction in LMA 2 implemented over six years and an approximate 25 percent trap reduction in LMA 3 implemented over 5 years. These trap reductions concluded in fishing years 2020 and 2021.

The Commission recommended a reduction in the LMA 3 maximum trap cap as well as ownership caps in LMA 2 and 3 that are expected to further reduce the number of traps authorized in the areas, as part of Addenda XXI and

XXII. NMFS is in rulemaking to consider the implementation of these measures. This FEIS anticipates this future rulemaking and has given credit to the risk reductions associated with Addenda XVIII, XXI, and XXII.

Comment 6.4:
NMFS should remove half the traps from the water, which would reduce the risk to right whales while still allowing fishermen to make a living.

Response:
Since 1994 under the Commission's Interstate Fishery Management Plan for American Lobster, states and NMFS have made substantial efforts at capping the number of permits and traps authorized in the lobster fishery. Participation caps serve as a primary effort control. Reducing trap caps by half could result in less effort and, when paired with traps/trawl requirements, could reduce the number of lines being fished, with an associated reduction in risk to large whales. A number of fisheries and managers that have participated in the public meetings of the Commission and the Take Reduction Team have expressed confidence that, on productive fishing grounds, lobster trap reductions could occur without negative economic consequences. A number of studies have demonstrated this, see for examples Myers and Moore (2020), Myers
et al.
(2007), and Acheson (2013).

However, for a reduction in the number of actively fished buoy lines to be fairly distributed based on vessel fishing histories or other commonly used metrics, detailed knowledge of the amount of fishing effort by sector or individual vessel is required. Allocation decisions in effort control management of a capped resource (lines or traps) are also usually informed by iterative public fishery management processes and include appeal options that are administratively burdensome. Because the lobster fishery has variable reporting requirements across states, and because only about 10 percent of Maine fishermen have been required to report in any year and Federal reporting has been variable, data to easily determine effective trap and line cap measures is not available. This was demonstrated by the failed attempt of the Commission to identify an effort limit addendum, as described in FEIS Section 3.1.1.2.

7. Management

We received thousands of comments on management issues, ranging from the use of adaptive management strategies to including southeastern states in future rulemaking to evaluating the effectiveness of the final rule. Thousands of commenters, primarily through campaigns organized by NGOs, but also at least 149 unique commenters, advocated NMFS taking emergency action to institute immediate vertical line reductions or closed areas, and of them, many suggested shutting down all fishing activities that involve vertical lines. Several also recommended shutting down all commercial fishing. We also received thousands of comments, again primarily through campaigns organized by NGOs, but also from 83 unique commenters, about our risk reduction calculations being based on outdated population estimates.

Comment 7.1:
NMFS should use adaptive management to assess and recalibrate the measures every few years to reach goals of reduced entanglements in fishing gear.

Response:
During the ESA Section 7 consultation on the operation of eight fisheries managed under Federal fishery management plans and two fisheries managed under interstate fisheries management plans, NMFS identified the need for additional measures to meet the mandates of the ESA, and developed a Conservation Framework to outline the agency's commitment to implement measures necessary for the recovery of right whales. In addition to the current rulemaking that seeks to reduce risk of mortality and serious injury by 60 percent, the Conservation Framework provides for additional rulemakings to further reduce risk over the next decade at levels expected to lead to survival and recovery of the species. Central to the Conservation Framework is an adaptive management approach by which new information relating to the status of right whales and the impacts of fisheries and non-fisheries activities will be used to determine the extent of additional management measures needed.

Comment 7.2:
NMFS should establish another process through which stakeholders can propose measures that could achieve equal or greater protections for right whales. The ALWTRP process is time-consuming, and does not allow for flexibility and adaptability.

Response:
The MMPA requires NMFS to convene Take Reduction Teams and develop Take Reduction Plans. While this process can be time consuming, it provides a framework for developing mitigation measures and clear goals for the ALWTRP. The ALWTRT has the discretion to recommend mitigation measures that are flexible and adaptable in meeting the MMPA goals.

Comment 7.3:
NMFS should include southeastern states in any future rulemakings, since right whales spend time in the southeast.

Response:
To simplify and expedite rulemaking, NMFS chose to direct the ALWTRT efforts initially on the Northeast Region lobster and Jonah crab trap/pot fisheries because these fisheries constitute 93 percent of the U.S. buoy lines in areas where right whales occur. The Team includes southeastern state fishery managers as well as members that represent the South Atlantic Fishery Management Council and Southeast U.S. fishermen. NMFS has begun working with the ALWTRT to get their recommendations on further rulemaking that may include modifications to the southeastern fisheries that are subject to the ALWTRP. We will include outreach to stakeholders in these states in our future rulemaki

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-19040. Public record. Not legal advice.