[Federal Register Volume 73, Number 170 (Tuesday, September 2, 2008)]
[Rules and Regulations]
[Pages 51228-51242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20167]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080509647-81084-02]
RIN 0648-AW84


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

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

ACTION: Final rule.

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SUMMARY: Through this final rule, the National Marine Fisheries Service 
(NMFS) amends the regulations implementing the Atlantic Large Whale 
Take Reduction Plan (ALWTRP), to delay the effective date of a broad-
based gear modification and remove one of the gear-related definitions 
required in the recent amendment to the ALWTRP. Specifically, NMFS will 
delay the broad-based sinking groundline requirement for trap/pot 
fishermen along the Atlantic coast for an additional six months, from 
October 5, 2008, to April 5, 2009. Additionally, this final rule will 
delete the term ``neutrally buoyant line'' and its associated 
definition from the ALWTRP regulations.

DATES: This final rule is effective October 2, 2008.

ADDRESSES: Copies of the proposed rule and Regulatory Impact Review 
related to this action can be obtained from the ALWTRP website listed 
under the Electronic Access portion of this document or writing Diane 
Borggaard, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 
01930. For additional ADDRESSES and web sites for document availability 
see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9300 Ext. 6503; or Kristy Long, NMFS, Office of 
Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP web site 
at http://www.nero.noaa.gov/whaletrp/. The complete text of the 
regulations implementing the ALWTRP can be found either in the Code of 
Federal Regulations (CFR) at 50 CFR 229.32 or downloaded from the 
website, along with a guide to the regulations.

Background

    This final rule implements modifications to the October 5, 2007 
amendment to the ALWTRP (72 FR 57104, October 5, 2007; 73 FR 19171, 
April 9, 2008). Details concerning the development and justification of 
this final rule were provided in the preamble of the proposed rule (73 
FR 32278, June 6, 2008), and are not repeated here.

Delay of Broad-based Sinking Groundline Requirement for Atlantic Trap/
Pot Fishermen

    This final rule will provide an additional six months (through 
April 5, 2009) for trap/pot fishermen along the Atlantic coast to 
comply with the AWLTRP's broad-based sinking groundline requirement. 
Regulated trap/pot fisheries include, but are not limited to, American 
lobster, crab (red, Jonah, rock, and blue), hagfish, finfish (black sea 
bass, scup, tautog, cod, haddock,

[[Page 51229]]

pollock, redfish (ocean perch), and white hake), conch/whelk, and 
shrimp. All other ALWTRP amendments will remain in effect, including 
the sinking groundline requirement for trap/pot fishermen in Cape Cod 
Bay Restricted Area (January 1 - April 15) and all AWLTRP-regulated 
gillnet fisheries.

Deletion of the Term ``Neutrally Buoyant Line'' and its Associated 
Definition

    Under this final rule, the term ``neutrally buoyant line'' and its 
definition will be deleted from the ALWTRP regulations, so that only 
the ``sinking line'' term and definition will remain. In order to 
ensure clarity, the term will be removed for both buoy line and 
groundline requirements and for both gillnet and trap/pot fisheries. 
Accordingly, the ``sinking line'' definition will be modified to 
eliminate reference to ``see also neutrally buoyant line.''

Comments on the Notice of Proposed Rulemaking and Responses

    NMFS issued a proposed rule on June 6, 2008 (73 FR 32278) with a 
30-day comment period through July 7, 2008. NMFS received approximately 
251 letters on the proposed rule via letter, fax, or email. 
Additionally, NMFS received approximately 2,950 form letters and/or 
signatures on the proposed rule. Of the 2,950 form letters, 2,840 
copies were received via www.regulations.gov, 50 copies were a second 
type of form letter, and 60 copies were received from a third type of 
form letter. All comments were reviewed by NMFS and included issues 
regarding the proposed delay, NMFS' mandates, and the proposed removal 
of the term ``neutrally buoyant line'' and its associated definition 
from ALWTRP regulations. Comments outside the scope of the proposed 
action are not responded to here. However, many of these comments 
(e.g., regarding problems with the use of sinking groundline, ship 
strike mitigation) were addressed in the responses to comments on the 
recent ALWTRP final rule (72 FR 57104, October 5, 2007) and Final 
Environmental Impact Statement (FEIS) (NMFS 2007) and are not repeated 
here. Comments related to reducing risk associated with vertical line 
are also outside the scope of this action but will be provided to the 
Atlantic Large Whale Take Reduction Team (ALWTRT) for consideration at 
its next meeting. The comments related to the proposed rule are 
summarized below, and NMFS' response follows each comment.
Comments on the Delay
    Comment 1: Many commenters expressed their support for the proposed 
six month extension (through April 5, 2009). Commenters noted that the 
current implementation deadline falls during the most profitable 
fishing period, and requiring lobstermen to remove and reconfigure gear 
at this time would cause a substantial loss in financial revenue (to 
them and their surrounding communities), whereas an extension would 
allow them to fish uninterrupted and maximize profitability during the 
height of the lobster harvesting season. Commenters stated that 
converting to sinking line is time-consuming and expensive, especially 
during prime fishing months and believed that gear should be converted 
gradually during the winter off-season, which would provide a more 
sensible, and physically and financially easier transition. Other 
commenters felt that the weather is too unpredictable during October 
and the wind and sea conditions would be too dangerous [for gear 
conversion]. One commenter stated that fishermen simply need more time 
to comply and a delay in implementation would allow them to better 
prepare for the final rule.
    Response: NMFS agrees that the six month extension will facilitate 
the conversion to sinking groundline in trap/pot fisheries along the 
Atlantic. As stated in the Regulatory Impact Review (RIR; May 2008) for 
this action, providing additional time for gear conversion would reduce 
the possibility of a disruption in fishing effort during the summer and 
early fall of 2008, which would have an adverse impact on the catch and 
revenues of affected fishermen. Fishermen would be able to bring their 
gear into compliance during the winter, when fishing activity slows, 
fewer traps are in the water, and fishermen typically focus on gear 
repair and replacement.
    Comment 2: Many commenters expressed their support for the proposed 
six month extension (through April 5, 2009) so that fishermen could 
adjust to current economic conditions (i.e., higher fuel and bait 
prices, lower purchase prices for lobster) and gain more financial 
resources to offset the difficulties many are having with purchasing 
sinking line. Several commenters also believed that the proposed delay 
is economically imperative for local communities. One commenter noted 
that the proposed action would allow lobstermen to spread out the cost 
of purchasing sinking line. Another commenter stated that for those 
that fish year-round, the extension will allot time to comply without 
missing fishing days. Other commenters expressed hope that the Federal 
government will come forth to assist with the expenses endured by each 
lobsterman affected by the sinking line requirement.
    Response: NMFS agrees that the delay will assist all Atlantic trap/
pot fishermen in fully converting to sinking groundline. Again, as 
noted in the RIR, trap/pot fishermen would be able to convert their 
gear over an extended period of time to avoid any potential spike in 
demand for sinking line, which if it materialized, might temporarily 
outstrip the capacity of cordage manufacturers, drive up prices, and 
impair fishermen's ability to comply. This action would also reduce 
compliance costs for those who have yet to complete the conversion, 
since more line could be converted when it ordinarily would need to be 
replaced, avoiding the costs associated with accelerating gear 
replacement.
    Comment 3: Many commenters expressed their support for the proposed 
six month extension (through April 5, 2009) as lobstermen would be able 
to research and experiment with different types of sinking line to 
determine what works best (i.e., on hard bottoms) as well as learn how 
to effectively fish with sinking line to reduce gear loss and safety 
concerns. One commenter believed that the proposed delay would 
demonstrate that NMFS understands the practical challenges of the 
large-scale transition to sinking groundlines.
    Response: NMFS appreciates fishermen's efforts to continue to 
phase-in sinking groudline during the delay. NMFS recognizes that the 
conversion from floating to sinking groundline involves a major 
reconfiguration of gear involving time and resources.
    Comment 4: Several commenters noted that providing a 6-month delay 
in implementation would allow lobstermen to avoid the necessity to 
switch to fishing singles, which would increase the number of vertical 
lines in the water, and hence, pose a greater risk to whales.
    Response: NMFS agrees that the delay will assist all Atlantic trap/
pot fishermen in fully converting to sinking groundline. NMFS also 
recognizes vertical lines as an entanglement risk to large whales and 
will be continuing to discuss this subject with the ALWTRT.
    Comment 5: One commenter supported the proposed delay in 
implementation until April 2009, for Federal waters only.
    Response: Based on NMFS' monitoring of both the availability of 
sinking groundline and the progress of

[[Page 51230]]

the fishing industry in converting to sinking groundline, NMFS believes 
an additional six months (to April 5, 2009) for trap/pot fishermen 
along the Atlantic coast to comply with this requirement is warranted.
    Comment 6: One commenter noted that the original 12-month 
implementation period was not enough time to convert all floating 
groundlines as lobstermen typically only replace a portion of their 
groundline annually. The commenter also stated that there was a short 
supply for industry members who wished to purchase compliant gear 
before the 2008 season and a lack of assurance the line purchased would 
be compliant under the regulations. Another commenter noted that the 
marine supplier he coordinates with ran out of steel liner sinking line 
in April 2008. Several other commenters questioned the availability of 
sinking line and believed a 6-month delay in implementation would 
enable rope producers time to increase production and meet industry 
demands. Some of these commenters believed there would be difficulties 
with enforcement of the regulation if not enough sinking line had been 
produced for fishermen to complete the required conversion.
    Response: NMFS recognizes that the conversion from floating to 
sinking groundline would expedite a fisherman's routine schedule of 
line replacement. Based on reasons noted in the proposed rule (73 FR 
32278, June 6, 2008) and RIR (May 2008), and comments received, NMFS 
believes an additional six months for Atlantic trap/pot fishermen to 
convert to sinking groundline is warranted. NMFS believes that an 
eighteen month time period (i.e., from the time the final rule was 
finalized on October 5, 2007, to the new effective date of April 5, 
2009) is sufficient time for the Atlantic trap/pot fishery to make the 
conversion. Manufacturers have indicated to NMFS that an adequate 
supply of cordage would be available if fishermen continue to convert 
throughout this time period.
    Comment 7: Many commenters supported the proposed 6-month delay in 
implementation as NMFS would have more time to continue working with 
fishermen to address ongoing issues of implementation and enforcement. 
One commenter felt that the proposed extension would allow industry to 
suggest another rule that will cause less financial hardship to 
fishermen. Other commenters noted that the proposed rule will give the 
Maine Lobstermen's Association (MLA) and other groups more time to work 
out a ``conservation equivalency agreement'' to meet the goals of the 
ALWTRT while ensuring Maine lobstermen the ability to fish. One 
commenter maintained that the proposed delay would allow NMFS and the 
ALWTRT time to consider the State of Maine's proposed sink rope 
exemption for Downeast Maine. A different commenter noted that NMFS, 
MLA, and Maine Department of Marine Resources (DMR) have been actively 
engaged in discussions about modifications to the regulations that 
would allow floating groundline to be used in some additional areas 
where there is low risk to whales in return for a reduction in 
endlines; the commenter encouraged NMFS to continue to work with MLA 
and Maine DMR and use the additional 6 months to craft a compromise on 
this issue.
    Response: NMFS believes an additional six months for Atlantic trap/
pot fishermen to convert to sinking groundline is appropriate to ensure 
implementation of this gear modification. However, NMFS does not agree 
that there is an enforcement concern regarding sinking groundline. The 
recent ALWTRP final rule (72 FR 57104, October 5, 2007) included 
modifications to the sinking groundline definition, as well as 
prohibitions on attaching buoy, toggles or other floatation devices, to 
assist enforcement of these provisions. Additionally, although it is 
not NOAA Office of Law Enforcement policy to share enforcement 
procedures with the public, NOAA is prepared to enforce this 
requirement. NOAA Office of Law Enforcement relies on its partnership 
with the U.S. Coast Guard (USCG) and state agencies to monitor 
compliance with the ALWTRP. NMFS has been in discussions with the Maine 
DMR on ALWTRP enforcement efforts.
    Although the ALWTRT has been discussing possible proposals related 
to exemptions to the sinking groundline requirement (in exchange for 
significant reductions in vertical lines) in specific areas these have 
not yet received even conceptual support by the ALWTRT. If conceptual 
support were achieved, significant work would remain to develop and 
agree to details of such a proposal. Any associated modification to the 
ALWTRP, pending approval, would be conducted through a separate 
rulemaking action. Thus, those discussions occurring with the ALWTRT 
are on a separate track and are independent of this action.
    Comment 8: Several commenters requested the delay be extended to a 
date later than April 5, 2009. Many of these commenters noted that they 
fish offshore trawls year-round, and the current proposed delay in 
implementation would not provide the necessary time for their gear to 
be converted. Commenters felt that the proposed April 5, 2009, deadline 
was chosen without consideration for the offshore fleet and the time 
necessary to convert offshore gear, leaving the proposed rule to serve 
only one segment of the industry. They believed that a delay until at 
least December 31, 2009, is necessary for offshore gear due to: (1) the 
cost of converting offshore gear and the fact that due to current 
economic conditions fishermen do not have extra money to convert their 
gear; (2) the time it takes to reconfigure offshore gear (vessels are 
able to transport no more than two trawls out to the fishing grounds at 
any one time); (3) the unnecessary safety risks that will be posed to 
offshore crews if they need to take out more than one trawl at a time 
during the winter months; (4) the large amount of heavy-duty line 
required by the offshore fleet, and if that supply will be available; 
and (5) the necessity of a comprehensive rope recycling program. Many 
commenters also noted the necessity for Federal funding or the 
establishment of a financial program to assist them in complying with 
the sinking groundline regulation. One commenter felt that if financial 
assistance could not be offered, then the delay should be extended to 
December 31, 2010.
    Response: NMFS did consider the Atlantic trap/pot fishery in its 
entirety when considering whether a delay in the conversion to sinking 
groundline was warranted. Additionally, NMFS considered other factors 
as noted in the proposed rule and RIR, such as impacts to large whales, 
when considering the appropriate delay period. NMFS believes that the 
additional six months, which would result in a total of 18 months 
(since the October 5, 2007, final rule) is an adequate time period to 
convert to sinking groundline for the offshore fleet taking into 
consideration the points noted above. For example, transporting two 
trawls a trip over an 18 month period should be adequate time to 
convert. NMFS has been in touch with gear manufacturers and suppliers 
who note that there should be a supply of sinking line available if 
fishermen continue to phase-in sinking groundline during the delay. 
Additionally, NMFS encourages fishermen to contact the NMFS Gear 
Research Team (contact information found at http://www.nero.noaa.gov/whaletrp/plan/gear/index.html) for information or contacts related to 
recycling line.
    As noted in the preambles to the proposed and final rule, NMFS 
believes

[[Page 51231]]

the six month delay through April 5, 2009, is appropriate and that any 
further broad-based delay could increase risk based on the seasonal 
abundance and distribution of large whales along the east coast. 
Specifically, the highest frequency of right whales in the western Gulf 
of Maine is April through May whereby at least half of the known 
population may be seen in this area during that time. Similarly, the 
highest frequency of right whales generally occurs in the Northern Edge 
of Georges Bank during June and July (Pace RM III, Merrick RL. 2008. 
Northwest Atlantic Ocean Habitats Important to the Conservation of 
North Atlantic Right Whales (Eubalaena glacialis). Therefore, NMFS 
believes that any delay beyond April 5, 2009 would create an increased 
risk to right whales in the Northeast.
    Comment 9: Many commenters stated confusion and concern as to how 
to identify sinking line that complies with NMFS' 1.03 or greater 
specific gravity standard. They questioned how fishermen can be certain 
the product they are buying as ``sink rope'' meets the standard set by 
NMFS. One commenter stated that many lobstermen were unable to change 
their gear prior to the start of the 2007 fishing year because they did 
not know what kinds of rope would be deemed sufficient to meet AWLTRP 
final rule requirements. Other commenters were worried that money 
already spent on available sinking line may have been wasted, as no one 
will verify if the line they purchased is compliant or not. Commenters 
noted that the rope industry does not clearly label its line in a 
manner to indicate the specific gravity of the line and/or if it is 
compliant with ALWTRP regulations. Some commenters requested NMFS to 
provide a clear directive indicating which line(s) comply with the 
rule; one commenter believed that providing a longer implementation 
time will enable the Agency to develop clearer standards to determine 
whether rope will or will not meet the regulation requirements. A 
different commenter requested a government proven line that has been 
approved for the specific buoyancy levels.
    Response: NMFS believes that the elimination of the ``neutrally 
buoyant line'' term and definition in the ALWTRP regulations will 
facilitate fishermen understanding the ``sinking'' groundline 
regulations. For example, industry has wondered whether NMFS will 
permit the use of ``low profile'' groundline in certain areas (the term 
``low profile'' refers to line that does not sink, but would remain in 
the water column relatively close to the sea floor). Elimination of 
references to ``neutrally buoyant line'' from the regulations would 
make clear to fishermen that ``sinking'' groundline is required. In 
response to requests from the fishing industry and line manufacturers 
for a clearer definition of sinking line, NMFS developed criteria for 
establishing a density standard for sinking line and used this criteria 
to develop the sinking line definition. In addition, NMFS finalized a 
procedure for assessing the specific gravity of line, which NMFS will 
use to determine whether a manufactured line meets the accepted density 
standard. The criteria are available on NMFS' website at http://www.nero.noaa.gov/nero/hotnews/whalesfr/. These criteria and procedures 
were meant to facilitate the manufacture of sinking line. Manufacturers 
have assured NMFS that they can produce rope that meets the definition 
of sinking line as mandated by the ALWTRP. Fishermen are required to 
ensure the line they purchase for their groundline is sinking line, and 
NMFS encourages fishermen to talk with gear suppliers and/or 
manufacturers about the available options for line that meets the 
sinking line requirements. However, NMFS does not expect fishermen to 
conduct their own specific gravity analyses. Additionally, NMFS does 
not believe special markings are needed for sinking line as NMFS is 
confident that fishermen have the ability to easily and confidently 
purchase sinking line that meets the requirements of the ALWTRP.
    Comment 10: One commenter stated that lobstermen have not received 
any information or assistance as to which lines will perform best for 
their local conditions and they are hesitant to invest in a line that 
may not work.
    Response: NMFS has funded research with the states, manufacturers, 
and industry to address this issue. NMFS' Gear Research Team has worked 
with numerous fishermen along the Atlantic coast over the years to test 
sinking line, and find a line that operationally works in their area. 
Thus, NMFS is aware of many fishermen who use sinking line and 
encourages industry members to contact the NMFS Gear Research Team 
(contact information found at http://www.nero.noaa.gov/whaletrp/plan/gear/index.html) for contact information of those who have used or 
tested sinking line in their area to discuss these issues further.
    Comment 11: One commenter noted that at this time, Rhode Island 
lobstermen have not received any financial assistance to initiate a 
rope buyback program. The commenter stated that the state has two dozen 
vessels using floating line nearshore due to rocky bottom, and that the 
State is home to the largest offshore lobster fleet, all of which use 
floating line. Although many fishermen have started to convert, others 
say they simply can not afford to buy the required line.
    Response: NMFS believes that the delay will provide more time to 
enable those fishermen who have not had access to these buyback 
programs to find the resources to convert to sinking groundline.
    Comment 12: One commenter felt that current rope buyback programs 
were occurring at the wrong times of the year, requiring fishermen to 
bring in their traps during peak fishing periods in order to make an 
exchange. The commenter suggested the months of January and February 
for a rope buyback program, as that is when the gear is out of the 
water.
    Response: The buyback program in Maine (where this commenter 
originates) is administered as part of a NOAA Grant. Therefore, we will 
forward the comment to the grant recipient for consideration.
    Comment 13: One commenter provided several remarks on the rope 
manufacturing industry. The commenter noted a rapid increase in the 
demand for sinking line from the Northeast U.S., roughly concurrent 
with the implementation of various rules and buyback programs. 
Although, to date, customer needs have been satisfied (though typical 
delivery times have been longer than normal) the commenter stated that 
significant challenges do exist to meet the current demand for sinking 
line. The commenter maintained that manufacturers are unable to control 
the sourcing of polyester used in constructing sinking line, as the 
material is used in other industries and is not always available at a 
reasonable price. The commenter also stated that rope manufacturers 
serve a variety of industries and the level of demand from markets 
outside fisheries may impact the ability of manufacturers to supply 
product within a reasonable time frame, especially if those outside 
industries are seasonal. The commenter believed that a sudden surge in 
demand would result in a temporary shortage and higher rices, and any 
price change would work quickly through the supply chain, potentially 
impacting individuals in a manner that would cause difficulties in 
complying with sinking groundline regulations.
    Response: NMFS appreciates the comment. As noted in the RIR, those 
fishermen who have not completed the conversion to sinking groundline 
are being provided an additional six months, which would help to smooth

[[Page 51232]]

any potential spike in demand for sinking line that might temporarily 
outstrip the capacity of cordage manufacturers, drive up prices, and 
impair fishermen's ability to comply. Therefore, for this reason and 
others noted in the proposed rule and RIR, NMFS believes that the delay 
will allow industry enough time to fully convert and enable 
manufacturer's to meet the demand for sinking line during this time 
period. NMFS also encourages fishermen to continue the conversion to 
sinking line as soon as possible to avoid possible problems described 
by the commenter.
    Comment 14: One commenter noted that a variety of products are 
required to best serve the industry as differing fishing environments 
and techniques require different designs of rope product. The commenter 
believed that since the fishing industry is now at a stage where a 
significant amount of compliant gear is being fished and a greater 
amount of feedback is expected over the next several months, 
manufacturers can use this information and make the necessary 
modifications to their product. The commenter felt that if a particular 
product is not available, it is conceivable that fishermen will be 
forced to use a product not well-suited for their needs in order to 
comply. Using such product could result in a significantly shortened 
product life-span, and as a result, increased costs and/or reduce a 
fisherman's ability to maximize landings.
    Response: NMFS acknowledges that the type of sinking line a 
fishermen may choose is dependent on many factors (e.g., bottom type, 
tide). Additionally, NMFS understands that many fishermen have tested 
various types of sinking groundline in various environments to 
determine the best line for their operation. NMFS encourages fishermen 
to continue the conversion to sinking line as soon as possible to help 
ensure availability of their desired product to avoid possible problems 
described by the commenter.
    Comment 15: Many commenters opposed the proposed six month 
extension (through April 5, 2009), stating that the rationale NMFS used 
to justify the proposed six-month delay in implementation was 
inadequate, disingenuous, unjustified, needed to be demonstrated 
factually, and is contrary to the protection needs of the North 
Atlantic right whale. Some commenters found the proposed delay to be 
unwarranted and risky. Commenters believed NMFS had already taken too 
long to adopt final regulations (a total of 5 years since the previous 
plan was found to be inadequate) and at least 18 right whale 
entanglements have been observed during those 5 years (commenters 
stated that at least 5-percent of the right whale population has been 
entangled in fishing gear in the time it took to develop the new 
rules). Commenters noted that NMFS has stated ``the loss of even a 
single individual [right whale] may contribute to the extinction of the 
species'', and hence, NMFS cannot casually delay the implementation of 
a measure necessary to avoid this result. Another commenter noted that 
past analyses (i.e., in the FEIS [NMFS 2007]) show that the sinking 
groundline requirement should be implemented by October 5, 2008, and it 
is inconsistent for NMFS to suggest further delay.
    Response: Due to the magnitude of the time and resources needed by 
fishermen to change their gear to sinking and/or neutrally buoyant 
groundline required by the recent ALWTRP amendment, NMFS provided a one 
year phase-in period. However, since publication of the final rule, 
NMFS has monitored both the availability of sinking groundline and the 
progress of the fishing industry in converting to sinking groundline 
and determined that both the American lobster fishery and other trap/
pot fisheries require additional time to convert to sinking groundline. 
NMFS believes fishermen will be continually converting their gear 
before the effective date, which will result in progressive risk-
reduction to large whales. Additionally, all other ALWTRP requirements 
would remain in effect during this period. NMFS believes that this 
action will result in minimal risk to large whales (see responses to 
Comments 16 and 18 for additional information regarding the rationale).
    Comment 16: Many commenters disagreed with NMFS and felt that the 
proposed delay in implementation would result in further adverse 
impacts to whales, especially right whales. One commenter felt that the 
assertions offered for why the delay will not have an impact on whales 
were wrong and the facts clearly state that whales are indeed put at 
significant risk by the delay. Commenters questioned how NMFS could 
substantiate any delay when according to the Maine DMR, at least 26 
Dynamic Area Management (DAM) zones had been declared between October-
April off the coast of Maine and New Hampshire since 2002. Commenters 
noted that managers will be left with fewer options to protect whales 
with the loss of the DAM and the Seasonal Area Management (SAM) 
Programs in April and October 2008, respectively. Commenters continued 
to state that NMFS justified the elimination of these programs in the 
final rule because they would be replaced by the broad-based sinking 
groundline requirement. One commenter stated that NMFS is allowing risk 
reduction components of the ALWTRP to expire before other measures are 
in place to substitute for their loss. Another commenter pointed to the 
lack of Federal funding for disentanglement operations beginning in 
2009. Without the means of either reducing the concentration of gear in 
the given area (i.e., a continuation of the SAM/DAM programs) or at 
least attempting to disentangle whales that potentially become 
entangled, commenters believed populations of North Atlantic large 
whale species would be placed at greater risk due to the delay. One 
commenter stated that neither this proposed rule nor its RIR elaborated 
on what the minimal impacts [to whales] are expected to be.
    Response: NMFS has made a qualitative assessment that the impacts 
to large whales from the delay would be minimal based on the various 
reasons noted in the proposed rule and RIR. In summary, this is based 
on what NMFS knows about gear and whale distribution, coupled with the 
conversion to sinking groundline which has already occurred due to 
buyback programs and expansive special right whale management areas. It 
is important to reiterate that the DAM program expired on April 5, 
2008, when most of the broad-based gear modifications were effective. 
NMFS believes that the numerous DAM zones that have been established in 
the Gulf of Maine since the program was implemented in 2002 have 
facilitated the conversion of lobster trap/pot gear to sinking 
groundline in these areas. NMFS also believes that the SAM program, the 
associated areas of which expanded on April 5, 2008, has similarly 
facilitated the conversion of lobster trap/pot gear to sinking 
groundline in these areas. However, NMFS acknowledges there has been 
confusion on the part of some industry, especially is areas that were 
not impacted by the DAM and SAM programs, as to who is impacted by the 
new regulations (e.g., on April 5, 2008, other trap/pot fisheries were 
subject to the ALWTRP including the SAM requirements) and what type of 
line is required for groundline (see Comment 9 for an example of this 
confusion). NMFS is not eliminating the broad-based sinking groundline 
requirement that was required through the October 5, 2007, final rule 
but is merely delaying the effective date of this by six months and is 
deleting the ``neutrally buoyant''

[[Page 51233]]

line terminology to assist with compliance with these regulations. The 
majority of the conservation measures included in the October amendment 
to the ALWTRP are already in place, and NMFS believes that those 
fishermen who have not already converted will continue to convert 
throughout the delay.
    Regarding the comment on disentanglement, NMFS recognizes the 
critical importance of removing fishing gear from entangled whales but 
is faced with decreasing budgets and implementing other pressing 
priorities. NMFS is seeking more cost-effective options to disentangle 
whales and to prevent entanglements from occurring.
    Comment 17: Many commenters felt that the majority of conservation 
measures in the ALWTRP, which NMFS states will already be in place 
during the 6-month extension, are inadequate and insufficient to 
protect whales. Commenters stated that whales will be vulnerable to 
entanglement in trap/pot gear during the delay as the only protective 
measure in place would be weak links, which NMFS has already determined 
are inadequate for risk reduction on their own, and no alternative 
protections are currently proposed. Commenters noted the entanglement 
of right whale 3107, which died as result of an entanglement 
in fishing gear with an unbroken 600lb weak link. One commenter 
believed it is misleading to state that the majority of ALWTRP 
conservation measures are already in place. Another commenter stated 
that any reduction in weak link strength or additional requirements of 
gear anchoring systems should not be considered significantly 
protective. Several commenters felt that the groundline requirement was 
the only ALWTRP requirement that would significantly reduce the line in 
the water column and therefore the only measure with a probability of 
further reducing entanglement risks.
    Response: NMFS disagrees and believes that large whales benefitted 
and continue to benefit from the numerous modifications to the ALWTRP 
that were effective April 5, 2008, as well as those that were 
previously in effect (e.g., restrictions in Cape Cod Bay and Great 
South Channel Restricted Areas). These modifications included but were 
not limited to expansion of the ALWTRP requirements in time and space, 
as well as numerous gear modifications. NMFS also believes that weak 
links add a level of protection for large whales, and in combination 
with other mitigation measures, serve as a valuable conservation tool. 
NMFS does not have evidence to suggest that weak links, when designed 
and used properly, are ineffective (i.e., NMFS does not have a 
documented case where a weak link failed to work for the type of 
entanglement it was designed to address). The rationale for various 
ALWTRP gear modifications, such as weak link strengths and gear 
anchoring systems, has been included in previous rulemaking documents. 
However, the comment related to this is outside the scope of this 
action and NMFS encourages the commenter to contact the NMFS Gear 
Research Team (contact information found at http://www.nero.noaa.gov/whaletrp/plan/gear/index.html) for further information.
    Comment 18: Some commenters contested NMFS' statement that 
``special right whale management areas have already converted to 
sinking groundline''. One commenter stated that the special areas in 
this plan were already in place in a previous plan which was found to 
be inadequate, and the areas provide little assurance of protection 
beyond that which was provided in the previous plan. Another commenter 
noted that the report cited by NMFS (Pace and Merrick 2008) indicated 
that there are important areas for whales, considered potential high 
use areas (i.e., Jordan Basin in the spring) that may not be protected 
under the ALWTRP. Commenters again noted that the DAM program was 
eliminated in October 2007 in lieu of the October 5, 2008, sinking 
groundline measures inside and outside SAM areas. One commenter noted 
that until the sinking groundline requirement comes into effect, the 
amount of time and area in which sinking groundlines would be required 
would be less than that which was required under the October 2007 
revised regulations. The commenter stated that the ALWTRP is intended 
for other large whales besides right whales, and many of these other 
endangered species do not stay within the ``special management areas''. 
These other species would get little benefit from gear conversion that 
is confined solely to these areas, whereas they would benefit from 
imposing regulations throughout the Northeast in October 2008. The 
commenter also noted that it is only fishermen who ``typically 
operate'' in these areas that may have converted their gear and other 
fishermen have the option of not setting their gear until these 
seasonal restrictions expire or to fish just outside the restricted 
areas; with the proposed delay, when the SAM program expires, the 
commenter believed these fishermen (who do not ``typically operate'' in 
the ``special management areas'') may fish with unmodified gear in 
2007-2008.
    Response: The ALWTRP, and the associated right whale management 
areas, are not considered inadequate. Rather, NMFS determined that a 
broad-based management approach focusing on the times and areas where 
large whales (i.e., not just right whales) are likely to occur would be 
more protective than the DAM and SAM programs. NMFS believes that the 
combination of expansive special right whale management areas, in 
addition to buyback programs, have facilitated the conversion to 
sinking groundline.
    One commenter stated that the Pace and Merrick (2008) document 
indicated that Jordan Basin is important to right whales in the spring, 
however, the document notes that this area is important August-October. 
Regardless, as NMFS has stated, the DAM program has facilitated 
conversion to sinking groundline. The DAM program was eliminated on 
April 5, 2008, and not October 2007 as indicated by one commenter. 
Additionally, the SAM areas were expanded in time and space in April 5, 
2008, where sinking groundline was required for all affected gillnet 
and trap/pot fishermen (including those newly covered by the ALWTRP). 
The ALWTRP regulations are presently in effect in time and areas where 
right, humpback, and fin large whales are known to occur. Based on the 
expansive nature of the right whale restricted areas in the Gulf of 
Maine, these areas (and the associated sinking groundline restrictions) 
include many areas where humpback and fin whales have also been 
sighted. Additionally, once fishermen have invested significant time 
and costs into converting to sinking groundline, they are unlikely to 
re-invest additional resources to reconvert for a short six month 
window.
    Comment 19: Many commenters disagreed with NMFS' assertion that 
``most trap/pot gear is out of the water during a portion of the time 
period before the broad-based sinking groundline requirements go into 
effect'' [in April 2009]. One commenter felt there was no information 
provided to justify this statement and was not aware of any analyses 
evaluating when, where, or how much trap/pot gear is removed from the 
water between October and April, nor an evaluation as to whether the 
gear that is not removed is located in areas where right whales are 
likely to encounter it. One commenter felt that a reduction in fishing 
effort is not a viable reason to justify a delay in implementation, 
especially for right whales. Other commenters noted that

[[Page 51234]]

fixed gear fisheries operate year-round in all areas where there are 
seasonally abundant, large concentrations of right whales, in other 
areas along the East coast, including New England. One commenter noted 
that right whales are typically seen off North Carolina in March where 
sea bass and crab pot fisheries operate in North Carolina and South 
Carolina waters at this time. Commenters stated that whales, especially 
right whales, who roam out of their expected wintering grounds will 
have no protection. Another commenter noted that October, November, and 
December represent busy fishing months for Maine lobstermen and that 
the density of vertical lines and groundlines in the water at this time 
would put whales at risk.
    Response: The statement that most Atlantic trap/pot gear is out of 
the water during a portion of the time period before the broad-based 
sinking groundline requirements go into effect (i.e., April 5, 2009) is 
based on historic fishing patterns along the east coast. When 
considering the Atlantic trap/pot fishery in its entirety, the majority 
of trap/pot effort occurs in the Northeast. However, the delay is 
occurring before the primary seasonal distribution of large whales in 
this area (although Cape Cod Bay is a special area for right whales, 
this area has already converted to sinking groundline during the 
critical periods) and buyback programs and special right whale 
management areas have facilitated the conversion to sinking groundline. 
When focusing on Maine alone, there is less concern that fishing effort 
may be high during some months of the delay given the consideration of 
whale distribution coupled with the conversion to sinking groundline 
that has occurred due to buyback programs and expansive DAM zones in 
the area. A NMFS analysis also indicates that estimated amounts of 
groundline and vertical line in Maine waters are at their lowest points 
during a number of months during the delay. Additionally, 71% of Maine 
state waters are exempt from the ALWTRP because these areas represent 
low entanglement risk to large whales. Regarding the mid and south 
Atlantic, the primary seasonal distribution of large whales occurs 
during the period of the delay, however, there is less trap/pot gear in 
the water (i.e., there is less density compared to the northeast) and a 
NMFS buyback program in this area has facilitated the conversion to 
sinking groundline.
    Comment 20: Many commenters disagreed with NMFS and felt that the 
seasonal distribution of large whales in the Northeast does occur 
during the proposed extension period. Another commenter asked NMFS to 
clarify this statement. One commenter felt that it is inaccurate for 
NMFS to assert that risk is low because the primary seasonal component 
of large whales occurs after April 2009, and that such an assertion is 
based on insufficient analyses of available data. The commenter 
believed NMFS failed to consider data indicating that the risk to 
endangered large whales occurs in areas larger than typically depicted 
by the Agency and that the Agency did not consider the best scientific 
data when determining the potential for risk. Commenters noted that 
many species of whales remain in U.S. North Atlantic waters during some 
or all of the proposed extension period. Many commenters maintained 
that the proposed delay would include all trap/pot fisheries along the 
east coast at a time when humpback and fin whales are known to forage 
off the mid-Atlantic and during the migratory times for right whales 
and others traveling along the east coast. One commenter indicated that 
the earliest month which humpback whales are likely to be seasonally 
absent from the Gulf of Maine is January, not October and that 
individuals of all age classes, including late pregnant females and 
those due to conceive, are sighted and identified in Gulf of Maine 
waters from October-December. Commenters also stated that the location 
of the majority of the North Atlantic right whale population during the 
fall and spring months is poorly understood and may overlap with 
whatever fishing effort exists. They also pointed to recent sightings 
in the central Gulf of Maine as indications that this area is a 
significant overwintering area. Another commenter stated that right 
whales are routinely found in Northeast waters during the time of the 
proposed delay and are often detected acoustically when no sightings 
have occurred. An additional commenter stated that the largest 
concentration of right whales occurs in late summer in the Bay of Fundy 
(after the April 5 date) and in spring in Cape Cod Bay and the Great 
South Channel (before the April 5 date). Commenters stated that 
aggregations of right whales are known to move out of critical habitat 
areas, and right whales 3314 and 3346 became 
entangled in the northern feeding grounds in late fall/early winter, 
which may be indicative of animals foraging in areas that would be 
unprotected during the proposed amendment period. One commenter 
referenced the RIR that accompanied the proposed action, where NMFS 
stated ``some right whales can be found year round''.
    Response: Related to the northeast, NMFS considered that the delay 
would occur before the primary seasonal distribution of large whales 
(factoring in that although Cape Cod Bay is seasonally important from 
January through April, sinking groundline is already required there 
during this time period). This does not mean that large whales will not 
enter the northeast during the delay (i.e., from October 5, 2008, 
through April 5, 2009), but rather that they have a stronger seasonal 
distribution or presence in the northeast after the delay (except Cape 
Cod Bay as noted above).
    The October 2007 ALWTRP amendment implemented modifications that 
expanded the temporal and spatial distribution of ALWTRP requirements 
by considering right, humpback, and fin whale distributions. It is 
important to note that all ALWTRP requirements other than the broad-
based sinking groundline requirement will be in effect during the delay 
(i.e., year-round in the northeast and seasonally in the mid and south 
Atlantic).
    NMFS cited the FEIS (NMFS 2007), as well as Pace and Merrick 
(2008), when considering the reasons that the delay would cause minimal 
impact to large whales. The FEIS (NMFS 2007) does include the seasonal 
distribution of right, humpback and fin whales which was considered by 
NMFS when developing the current action. Additionally, NMFS considered 
an updated NMFS document (i.e., Pace and Merrick, 2008) that identified 
concentrations of right whales. NMFS does not indicate large whales 
will be absent during the time period of the delay, but considered the 
seasonal distribution of large whales in conjunction with other factors 
noted in the proposed rule and RIR (e.g., gear distribution, buyback, 
groundline requirements that have/are already in effect in various 
management areas) when stating that there would be minimal risk to 
large whales and proposing a delay. The FEIS (NMFS 2007) notes that 
right whales occupy Cape Cod Bay from December onwards, however, 
sinking groundline is already required in this area from January 15-
April 15. According to Pace and Merrick (2008), the Great South Channel 
is seasonally important to right whales from April-June which is after 
the delay; this is also supported by the ALWTRP regulations in which 
more restrictive management measures (e.g., closures) are effective in 
the Great South Channel from April 1 - June 30.
    Comment 21: Many commenters questioned NMFS' use of Pace and 
Merrick (2008) as an appropriate

[[Page 51235]]

citation to support justifications of whale distributions. One 
commenter maintained the publication only used systematic survey data 
for right whales from 1970-2005 and did not incorporate acoustic data. 
Commenters also noted that the research did not consider the 
distribution of other large whales species covered by the ALWTRP, 
including humpback whales for which takes also exceed their Potential 
Biological Removal (PBR) level, and that data used for analysis needed 
to be more recent than 2005 as numerous DAM zones were implemented from 
2006-2008 (before the program expired) during months of the proposed 
delay (91% of these DAM actions occurring during the proposed delay 
period). One commenter noted that although the Pace and Merrick (2008) 
report was relevant, it was undertaken for the purpose of evaluating 
spatial and temporal boundaries of critical habitat for right whales, 
not the purpose that NMFS attempts to use it for the proposed action. 
The commenter also stated that the 2008 report calls into question the 
technical reports by Merrick (2005) and Merrick et al. (2001), which 
NMFS relied on heavily in its FEIS (NMFS 2007). As NMFS cites the FEIS 
for information on distribution in this proposed rule, the commenter 
felt that NMFS had failed to properly consider caveats provided by its 
own scientists.
    Response: NMFS believes considering Pace and Merrick (2008), 
coupled with information contained in the FEIS (NMFS 2007) was 
appropriate. The Pace and Merrick (2008) document provides information 
on right whale presence, and provides some indications of the spatial 
and temporal patterns of right whales in the Gulf of Maine. Although 
this document was written for a different purpose than for this 
particular action, it does provide information about right whale 
presence that is relevant. As with any study of observational data, 
this study comes with caveats but it does not necessarily preclude the 
document from being considered and it includes important information 
about right whale use in the Gulf of Maine. NMFS also acknowledges that 
acoustic data is important, but at this time the agency uses this 
detection tool to determine presence and not relative abundance.
    Comment 22: One commenter thought it was unclear how buyback 
programs from Maine to North Carolina could be considered a 
justification for the proposed delay. The commenter stated that NMFS 
has not specified the source or nature of the data it used to determine 
the amount of gear that has been exchanged, nor has NMFS explained how 
the gear already exchanged translates into a particular degree of risk 
reduction along the east coast such that a delay for unconverted gear 
is warranted and will pose a minor effect to large whales. Another 
commenter noted that the fact that a large amount of groundline has 
already been replaced demonstrates that fishermen have long been aware 
of the pending requirement. An additional commenter felt that 
conversion of floating line was not uniform, and as a consequence, 
stated that it could not be assumed that a similar proportion of gear 
has been converted in each fishery or sub-region.
    Response: Since 2005, NOAA has promoted trap/pot gear buyback and 
recycling programs from Maine to North Carolina with over $3 million in 
funding appropriated by Congress. This has been done with the 
assistance of industry and conservation organizations.
    NMFS discussed floating groundline buyback programs in Section 
7.4.3 of the ALWTRP FEIS (NMFS 2007); the FEIS was referenced in both 
the proposed rule and RIR. At the time of the FEIS's publication 
(August 2007), two buyback programs had been implemented. During the 
fall of 2004 and spring of 2005, the International Fund for Animal 
Welfare (IFAW), in collaboration with the Massachusetts Division of 
Marine Fisheries (MA DMF) and the Massachusetts's Lobstermen's 
Association, conducted a gear replacement program to assist 
Massachusetts inshore trap/pot lobstermen. Approximately 300,000 pounds 
(~2,100 miles) of floating groundline was collected and replaced. In 
mid-January 2006, NMFS conducted a mid-Atlantic gear buyback and 
recycling program for state and federally permitted trap/pot fishermen 
in the states of NJ, DE, MD, VA, and NC, in coordination with the 
National Fish and Wildlife Foundation (NFWF). Nearly 100,000 pounds 
(~541 miles) of floating groundline was collected.
    NMFS noted in the FEIS (NMFS 2007) that the Gulf of Maine Lobster 
Foundation (GOMLF) had received funding to administer a floating 
groundline buyback program for state and federally permitted lobster 
trap/pot fishermen in the state of Maine. The first stage of the 
``Bottom Line Project'' was implemented in May of 2007 and 
approximately 137,590 pounds (~745 miles) of floating groundline were 
collected. In FY 08, NOAA made an additional $356K available to the 
GOMLF to further their gear buyback and recycling program within the 
State of Maine. Since publication of the FEIS (August 2007), Phase II 
of the GOMLF ``Bottom Line Project'' has been completed (March-May 
2008), and approximately 452,890 pounds (~2,450 miles) of floating 
groundline was collected from four Maine ports. The GOMLF recently 
announced summer 2008 rope exchange dates and locations: August 2008 in 
Ellsworth, ME and September 2008 in Rockland, ME.
    An additional recent groundline buyback program targeting state and 
federally permitted New York trap/pot fishermen was implemented in 
February 2008 on Long Island, New York, by NFWF and the New York State 
Department of Environmental Conservation. A total of 15,380 pounds (~83 
miles) of floating line was collected and an additional future line 
collection is being scheduled to make use of remaining funds.
    Each agency/group administering the buyback program keeps track on 
the information related to the program. Specific to NMFS' mid-Atlantic 
buyback program, NMFS determined the amount of line that could fit into 
a cardboard box prior to the collection which enabled NMFS to record 
how much line was collected. NMFS therefore estimates that, to date, a 
total of 1,422 trap/pot fishermen from ME, MA, NY, NJ, DE, MD, VA, and 
NC have participated in buyback programs and approximately 1,595,755 
pounds (~9,116 miles) of floating groundline has been exchanged. With 
buyback programs ongoing (e.g., projects in NY and ME), NMFS 
anticipates additional floating groundline will be collected in the 
future. Although the buyback programs may not be uniformly distributed, 
the use of floating groundlines in different fisheries or regions are 
likewise not uniform. Therefore, NMFS believes a valuable entanglement 
risk reduction has been provided for large whales in the areas where 
the gear buyback efforts have occurred.
    Comment 23: One commenter asked why proposals such as a more 
narrowly focused, targeted delay, a limited deferral of enforcement, or 
a ``bye'' for fishermen that can verify that an order for sinking line 
has been submitted, were not contemplated. Another commenter stated 
that NMFS could choose an alternative that provides for flexibility in 
enforcement while at the same time provides the greatest protection for 
whales. The commenter suggested NMFS to keep the October 2008 deadline 
for all aspects of the ALWTRP and then use a ``rebuttal presumption'' 
that it is feasible and appropriate for fishermen to comply. If a 
fisherman is subject to an enforcement action, the burden could be 
placed on

[[Page 51236]]

that individual to show why it was not feasible and/or appropriate for 
them to comply by October 2008. This would require the agency to set a 
cut off date by which the affected fisherman would have submitted their 
orders to known gear manufacturers. If a fisherman without compliant 
gear is able to document that they submitted their order before June 6, 
2008 (or some other date showing a good faith effort by fishermen to 
comply), then that fisherman could avoid a penalty.
    Response: NMFS believes that the proposals the commenter suggested 
cannot be feasibly enforced or implemented. NMFS believes this final 
action is the best option to ensure compliance with the broad-based 
sinking groundline requirement with minimal risk to large whales.
    Comment 24: One commenter stated that if NMFS does move forward 
with the delay, then the Agency should encourage fishermen to use that 
time to ensure their gear is 100% compliant with the new implementation 
deadline and that there will be no more delays or excuses as to why any 
fishermen have failed to comply. The commenter noted that some 
lobstermen have made comments in the media that they believe the delay 
will provide an opportunity to implement an alternative solution to 
sinking lines in Maine before April 2009. The commenter maintained that 
even if a Maine working group recently convened were to reach an 
agreement, the full ALWTRT would need to be consulted and a new 
rulemaking process initiated, and NMFS would not be able to finalize 
rulemaking to implement an alternative before April 2009. The commenter 
believed that NMFS needs to send a clear message to lobstermen that 
they need to take swift action to convert their gear even with the 
prospect of an alternative to sinking line.
    Response: NMFS will be distributing a small entity compliance guide 
to affected fishermen to notify them of the new broad-based sinking 
groundline deadline (April 5, 2009), as well as the removal of the 
``neutrally buoyant line'' term and definition. NMFS will also clarify 
that the removal of the ``neutrally buoyant line'' term and definition 
does not change what NMFS is requiring fishermen to use for their 
groundline (i.e., line that has a specific gravity greater than or 
equal to 1.030, and, for groundlines only, does not float at any point 
in the water column). Although the ALWTRT has been discussing possible 
proposals related to exemptions to the sinking groundline requirement 
(in exchange for significant reductions in vertical lines) in specific 
areas, these have not yet received even conceptual support by the 
ALWTRT or NMFS. If conceptual support were achieved, significant time 
would be needed to develop and agree to details of such a proposal. Any 
associated modification to the ALWTRP, pending approval, would be 
conducted through a separate rulemaking action. Thus, those discussions 
occurring with the ALWTRT are on a separate track and are independent 
of this action.
    Comment 25: Several commenters believed that fishermen have already 
had plenty of time to convert their gear within the original 12-month 
delay in implementation, and questioned why fishermen did not take 
action to convert their line last winter when their gear was out of the 
water.
    Response: Confusion over the type of line the ALWTRP regulations 
require and debate over potential changes to the regulations have 
slowed the commercial fishing industry's progress in converting to 
sinking groundline. For example, trap/pot fishermen have inquired about 
the definition of low profile groundline (a line that does not sink, 
but loops some distance above the ocean bottom lower than floating 
line), and have asked NMFS for clarification on whether neutrally 
buoyant line is the same as low profile line. The conversion process 
has also been slowed by confusion over which trap/pot fisheries are now 
subject to ALWTRP regulations. Prior to 2007, the only trap/pot fishery 
subject to ALWTRP requirements was the American lobster fishery. The 
amendments to the ALWTRP published in October 2007 expanded the scope 
of the plan to other trap/pot fisheries. In light of this situation, 
NMFS removed the ``neutrally buoyant line'' term from the regulations 
(whereby only ``sinking line'' remains) to facilitate understanding of 
the regulations and delayed the effective date of the sinking 
groundline requirement for trap/pot fisheries from October 5, 2008, to 
April 5, 2009, to ensure compliance with these requirements.
    Comment 26: Many commenters believed the proposed action is 
unnecessarily broad in scope and will relax requirements already in 
place and being used by many New England fishermen (i.e., fishermen who 
converted a portion of their gear due to SAM and DAM regulations, and/
or MA state lobstermen). Several commenters were concerned fishermen 
may revert to the use of floating line in the absence of previous 
requirements for sinking line in certain areas and one commenter failed 
to see how this situation justified the proposed deferral. Another 
commenter stated that fishermen who have yet to make the conversion to 
sinking groundlines, or that were planning to make the conversion 
before October, are now being told they have no obligation to use 
sinking line during the delay.
    Response: NMFS believes an extended phase-in period is warranted 
along the Atlantic coast to enable trap/pot fishermen to rig their gear 
with sinking groundline, but believes fishermen will be continually 
converting their gear up until the effective date, which will result in 
progressive risk-reduction to large whales. Additionally, once 
fishermen have invested significant time and costs into converting to 
sinking groundline, they are unlikely to reinvest additional resources 
to reconvert their gear for a short, six-month window. See response to 
Comment 25.
    Comment 27: Some commenters felt that although NMFS justified the 
proposed delay in implementation based upon confusion and/or an 
inability to comply, the real reason behind the proposed delay is to 
allow the industry time to undermine the protective measures in the 
October 2007 ALWTRP final rule. Commenters cited a June 3, 2008, MLA 
press release, where the group states that the delay would allow them 
time to ``work to find a whale protection plan that is better suited 
for [their] area'' and would allow them to ``submit an alternative 
proposal that would exempt certain additional areas from the sinking 
line rule''. Several commenters also noted that the Maine senatorial 
delegation issued a press release shortly before NMFS published its 
proposal to delay implementation, stating that implementation would be 
delayed and the delay would provide ``an opportunity to improve the 
rules that will ultimately go into effect'' (Snowe 2008). Commenters 
believed that such statements indicate the intent by the Maine lobster 
industry to further delay their compliance and to work to undermine and 
further modify the protections of the October 2007 ALWTRP rule. 
Commenters also believed that NMFS' rationale appeared to accommodate 
the trap/pot industry's desire to further amend the final rule.
    Response: Confusion over the type of line the regulations require 
and debate over potential changes to the regulations have slowed the 
commercial fishing industry's progress in converting to sinking 
groundline. The conversion process has also been slowed by confusion 
over which trap/pot fisheries are now subject to ALWTRP regulations. In 
light of this situation, NMFS is delaying the effective date of the 
sinking

[[Page 51237]]

groundline requirement for trap/pot fisheries from October 5, 2008, to 
April 5, 2009.
    Although the ALWTRT has been discussing possible proposals related 
to exemptions to the sinking groundline requirement (in exchange for 
significant reductions in vertical lines) in specific areas these have 
not yet received even conceptual support by the ALWTRT. If conceptual 
support were achieved, significant work would remain to develop and 
agree to details of such a proposal. Any associated modification to the 
ALWTRP, pending approval, would be conducted through a separate 
rulemaking action. Thus, those discussions occurring with the ALWTRT 
are on a separate track and are independent of this action. See 
response to Comment 7 for further clarification.
    Comment 28: One commenter believed that most of the concerns about 
the sinking line requirement were coming from Maine fishermen. Although 
the MLA asserts that Maine state waters are low risk to whales, the 
commenter noted that NMFS' own data show whales have become entangled 
in lobster gear in Maine state waters. Specifically, the commenter 
stated that a number of documented large whale entanglement cases were 
from the Maine inshore lobster industry and these numbers likely 
underestimate all the entanglements.
    Response: The majority of the east coast lobster trap/pot fishery, 
is off the state of Maine. Thus, it is not surprising that much of the 
confusion has occurred in the Northeast. However, there has been 
confusion in other areas as well. NMFS acknowledges that some 
entanglements have occurred in gear originally set in Maine state 
waters; therefore, there are portions of Maine waters that are subject 
to the ALWTRP regulations.
    Comment 29: Several commenters questioned why NMFS is not proposing 
a delay for the gillnet fishing industry, as NMFS began to regulate the 
Northeast anchored float gillnet and drift gillnet fisheries under the 
October 5, 2007, final rule (72 FR 57104), in addition to the other new 
fisheries. The commenters requested that NMFS provide an explanation as 
to why the regulated gillnet fisheries are apparently capable of 
complying with the sinking groundline requirement, the limited 
availability of sinking groundline does not apply to this industry, and 
there is no confusion as to what constitutes sinking groundline within 
the gillnet fishery (but all of the above applies to regulated trap/pot 
fisheries).
    Response: It is important to note that the newly regulated 
Northeast anchored float and drift gillnet fisheries represent much 
lower effort than the Northeast sink gillnet fishery which has been 
regulated previously. Additionally, the Northeast sink gillnet fishery 
in turn represents much lower effort compared to the Atlantic trap/pot 
fisheries. NMFS believes that the gillnet industry does not require the 
same amount of time and resources to change over their groundline 
compared to the trap/pot industry. The gillnet fishery is smaller in 
size and does not have the length of groundline compared to the trap/
pot fishery (NMFS, 2007). Thus, NMFS believes that the gillnet fishery 
can convert its groundline to sinking line in a shorter amount of time. 
Additionally, the gillnet fishery is accustomed to using rope that 
sinks to the bottom (i.e., leadline) versus the trap/pot fishery. 
Gillnet fishermen have therefore had more experience using line that 
lies on the bottom of the ocean floor.
    Comment 30: One commenter questioned NMFS' statement that the delay 
is needed to avoid a spike in demand which could outstrip the capacity 
of rope manufacturers and that NMFS has monitored the availability of 
line. The commenter stated that NMFS has failed to explain why/how the 
initial 12-month phase-in was inadequate nor has the Agency provided 
the results of its purported ``monitoring'' or document that supply has 
been insufficient over the last 9 months since the publication of the 
final rule.
    Response: Those who have yet to complete the conversion to sinking 
rope would be allowed under this final rule to continue this process 
for an additional six months. This would reduce compliance costs, since 
more line could be converted when it ordinarily would need to be 
replaced, avoiding the costs associated with accelerating gear 
replacement. This would also help to smooth any spike in demand for 
sinking line, which could outstrip the capacity of cordage 
manufacturers, drive up prices, and impair fishermen's ability to 
comply. See Comment 13 which was written by a manufacturer and which 
supports NMFS' statements on demand and availability issues. In the 
October 2007 final rule, NMFS allowed a twelve month phase-in of the 
sinking groundline requirement based on the magnitude of this 
requirement. However, as noted in the Record of Decision (ROD) for the 
October 2007 amendments to the ALWTRP (72 FR 56335, October 3, 2007), 
NMFS committed to continue to monitor the supply and situation of 
available rope through discussions with industry during the upcoming 
year. Since publication of the final rule, NMFS has monitored both the 
availability of sinking groundline and the progress of the fishing 
industry in converting to sinking groundline. Through these efforts, 
NMFS has determined that both the American lobster fishery and other 
trap/pot fisheries require additional time to convert to sinking 
groundline. This has been determined through various forms of NMFS 
communication (e.g., meetings, phone calls) with stakeholders, 
including manufacturers, gear suppliers, and industry members.
    Comment 31: Many commenters noted a potential mistake in the 
preamble to the proposed rule within the list of reasons NMFS supplies 
to justify how the impact of the proposed extension would be minimal to 
large whales. The fifth justification reads, ``gear buyback programs 
from Maine to North Carolina that have assisted in the conversion of 
sinking groundline for lobster trap/pot fisheries have already removed 
a large amount of sinking groundline from the ocean `` Commenters 
indicated that the word ``sinking'' should have actually read 
``floating''. One commenter noted that as written, the statement 
appears to justify rejecting rather than adopting the delay.
    Response: In the preamble to the proposed rule, the statement above 
should have read ``gear buyback programs from Maine to North Carolina 
that have assisted in the conversion of sinking groundline for lobster 
trap/pot fisheries have already removed a large amount of floating 
groundline from the ocean `` This represented an error during writing 
the preamble to the proposed rule only, and does not mean the 
justification should be rejected.
    Comment 32: Many commenters disputed NMFS' statement that there was 
confusion within the industry, especially in the Northeast. Commenters 
believed there was no information provided to evaluate the extent of 
this confusion, whether it was based on terminology in the October 2007 
regulations, and why a simple clarification would not rectify the 
confusion. Commenters felt the stated confusion does not exist because: 
(1) thousands of comments have been received from the lobster industry 
focused on the groundline requirement, indicating that fishery 
participants have clearly understood what has been proposed for several 
years; (2) NMFS has invested ample time and effort in advising and 
preparing fishermen for implementation of this requirement through the 
development and distribution of extensive outreach materials, including 
the distribution of

[[Page 51238]]

permit holder letters which detailed requirements for compliance (3) 
NMFS has two fisheries liaisons to bring information about the rule to 
local fishermen; (4) although the final rule added new fisheries under 
the ALWTRP, it was clearly stated which new fisheries were added and 
the proposed rule also contained the same list of fisheries; (5) 
several of the fisheries are represented on the ALWTRT, and hence, 
would be aware of pending regulations; (6) the definition of sinking 
groundline has not been substantively changed since regulation began in 
1997 and NMFS has developed a flyer that describes how the Agency will 
determine the specific gravity of rope; (7) several fishing industry 
trade publications have written articles on meetings for fishermen 
about the upcoming changeover of line, funds available and listed 
manufacturers who offer compliant line from Maine through the mid-
Atlantic (CFN 2006, FV 2006); (8) in January, 2007, the State of 
Massachusetts required all lobstermen to convert to sinking 
groundlines, using the same specifications as NMFS, and no confusion 
resulted; and (9) fishermen have been required to convert to sinking 
line since 2003 due to SAM and DAM regulations. One commenter 
questioned why NMFS finds it necessary to defer implementation of the 
rule outside the Northeast if the majority of the confusion is in the 
Northeast. One commenter believed it was unacceptable for large whales 
to bear the burden of the Agency's failure to clearly communicate the 
regulatory requirements of the ALWTRP.
    Response: Based on the actions commenters note above, NMFS believes 
numerous fishermen have made the conversion to sinking groundline. 
However, regardless of the numerous efforts NMFS had undertaken, 
confusion with the requirements has continued to occur ranging from 
which type of line is required to which fishermen are impacted and 
where. The October 5, 2007, amendment to the ALWTRP represented 
significant modifications to the regulations. Fishermen from Maine 
through Florida were affected and the rule introduced several new 
requirements for both fishermen previously regulated under the plan as 
well as numerous fishermen regulated for the first time by the October 
2007 final rule.
Comments on NMFS' Mandates
    Comment 33: Several commenters stated that they believed the 
proposed delay in implementation would be in violation of the Marine 
Mammal Protection Act (MMPA). Commenters explained that according to 
the MMPA, when the take of a species/population exceeds PBR, it is 
afforded a take reduction plan and that, under this specification, the 
death of right whale 3107 should have resulted in a new ALWTRP 
final rule by 2004, however the final rule was not published until 
October 2007, only after legal action was taken. One commenter asserted 
that delaying implementation of the 2007 final rule violates the 
strict, statutory deadlines of the MMPA requiring the prompt 
development and issuance of a final rule as well as the timely 
implementation of that rule. Also, some commenters noted that the 
deaths of right and humpback whales continue to exceed PBR and that the 
purpose of a take reduction plan is to ``reduce, within six months of 
its implementation, the incidental mortality or serious injury'' of 
marine mammals ``to levels less than'' PBR levels (16 
U.S.C.1387(f)(2)). One commenter believed that NMFS has been out of 
compliance with the MMPA's deadlines for development, approval, and 
implementation of the revised ALWTRP for several years following the 
death of right whale 3107.
    Response: The MMPA sets up a process for developing and issuing 
take reduction plans, monitoring the plans regularly, meeting with the 
take reduction teams regularly, and making amendments if necessary to 
meet the goals of the MMPA. NMFS has been acting consistent with that 
process. The first ALWTRP was issued in 1997, and NMFS has modified the 
ALWTRP numerous times since with input from the ALWTRT to further these 
goals of the MMPA to reduce serious injury and mortality of large 
whales in commercial fisheries.
    Comment 34: Some commenters stated that they believed the proposed 
delay would be in violation of the Endangered Species Act (ESA). Under 
the ESA, NMFS is required to ensure that actions authorized by the 
Agency are not likely to jeopardize endangered and/or threatened 
species, and one commenter believed under these provisions, NMFS can 
not legally authorize the take of a single animal. Two commenters 
stated that, in the 2001 ESA Section 7 consultations, NMFS identified 
SAM/DAM programs as Reasonable and Prudent Alternatives (RPAs) to 
jeopardy for right whales and that NMFS would be in violation of the 
ESA if current whale protections required under that consultation, 
including SAM and DAM, were to be phased out before the sinking 
groundline requirement was implemented. The commenters requested that, 
if the Agency moves forward with the delay, then the SAM/DAM programs 
should be reinstated during the time of the delay, for all areas. Two 
commenters maintained that, although NMFS stated the delay would pose 
``minimal'' risk, the Agency did not state if it meets the legal 
standards of the ESA (or the MMPA) to ensure that no right whales will 
be taken.
    Response: The proposed delay in the effective date for the use of 
sinking line on pot/trap gear for all pot/trap fisheries does not 
violate the ESA. NMFS considered the effects to ESA-listed species 
under NMFS jurisdiction as a result of the proposed action in 
accordance with Section 7(a)(2) of the ESA. NMFS concluded that a delay 
in the effective date of the requirement to use sinking line will delay 
by six months the benefit to ESA-listed cetaceans anticipated as a 
result of the October 5, 2007 final rule (72 FR 57104) requiring the 
broad-based use of sinking groundline. However, the proposed action to 
delay the use of sinking groundline for pot/trap fisheries will not, in 
itself, cause harm to ESA-listed cetaceans. Since switching to sinking 
line is neither likely to benefit or harm ESA-listed sea turtles, 
shortnose sturgeon, or Gulf of Maine Distinct Population Segment of 
Atlantic salmon, a delay in the effective date for the use of sinking 
line on pot/trap gear is also not expected to benefit or harm these 
species.
    NMFS has reinitiated ESA Section 7 consultation on the continued 
authorization of the federal lobster fishery as well as the 
multispecies, monkfish, and spiny dogfish fisheries given the changes 
to the ALWTRP, specifically the elimination of the DAM and SAM 
programs. Those consultations are in-progress.
    As noted in the recent ALWTRP final rule (72 FR 57104, October 5, 
2007; 73 FR 19171, April 9, 2008) the DAM and SAM programs were being 
replaced with a broad-based management scheme. Specifically, when the 
majority of the broad-based gear modifications became effective on 
April 5, 2008, the DAM program was eliminated. Also, the final rule 
eliminated the SAM program effective October 5, 2008 when the broad-
based sinking/neutrally buoyant groundline requirement was to be 
effective. However, the proposed action does not change the requirement 
to use sinking groundline on pot/trap gear in areas where this 
modification is already required by the ALWTRP (either previously or as 
of April 5, 2008), such as SAM and the Cape Cod Restricted Areas. 
Broadening the DAM and SAM

[[Page 51239]]

gear modifications in time and space to all gillnet and trap/pot 
fisheries is more protective to large whales than the limited temporal 
and spatial DAM and SAM programs required in the RPA, even given the 
delay in effective date for the use of sinking line on pot/trap gear. 
In addition, NMFS has determined that large whales will be minimally 
effected by the delay in effective date given that: (1) the majority of 
the conservation measures included in the amendment to the ALWTRP would 
already be in place; (2) fishermen in special right whale management 
areas have already converted to sinking groundline as described above; 
(3) most trap/pot gear is out of the water during a portion of the time 
period before the broad-based sinking groundline requirements go into 
effect; (4) the primary seasonal distribution of large whales in the 
Northeast does not occur during the proposed delay time period (Pace 
and Merrick 2008; NMFS 2007) (where the majority of confusion has been 
reported to have occurred); and (5) gear buyback programs from Maine to 
North Carolina that have assisted in the conversion of sinking 
groundline for lobster trap/pot fisheries have already removed a large 
amount of sinking groundline from the ocean.
    Comment 35: One commenter asserted that delaying the implementation 
of the 2007 sinking groundline requirement will be in violation of the 
settlement agreement in HSUS v. Gutierrez (Civ. No. 07-0333). The 
commenter maintained that if NMFS decides to amend its ``final'' ALWTRP 
rule before it is ever implemented, the agency will violate the terms 
of the settlement which required the submission of an actual final rule 
on October 1, 2007. According to the commenter, the settlement 
agreement also requires the agency to either seek parties' consent or 
an order of the court if it wishes to modify the date upon which the 
final rule is due, and the commenter believed NMFS has failed to comply 
with these procedures.
    Response: NMFS believes that the settlement agreement was fully 
complied with because the agreement only addressed publication of the 
final rule, and the settlement was silent with respect to anything 
else, including any delay of any effective dates. Specifically, the 
settlement agreement required NMFS to submit a final rule to the 
Federal Register by October 1, 2008, which NMFS did. The agreement does 
not obligate NMFS in any way regarding the substance of that final rule 
(or what would happen after the final rule was issued).
    Comment 36: One commenter believed that a categorical exclusion 
(CE) for this proposed rule is not appropriate under the National 
Environmental Policy Act (NEPA) and/or NOAA Administrative Order 216-6 
(NAO 216-6) and hence, NMFS is not relieved of its NEPA obligations. 
The commenter maintained that pursuant to NEPA, the Agency must either 
prepare an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) to consider the ``significant'' impacts of this 
proposal. The commenter believed NMFS could not argue the proposal to 
extend the implementation deadline was the ``same'' as any other 
previous action where NMFS has already demonstrated no ``significant 
impacts'' would result, nor has the agency considered the impact of 
removing SAM and/or DAM programs without substituting broad-based gear 
requirements. The commenter states that by issuing an EIS for the 
October 2007 ALWTRP amendment NMFS concluded implementing the ALWTRP 
would cause ``significant impacts,'' and therefore NMFS could not now 
justify its decision that the delay would not have ``significant 
impacts''. To further demonstrate the inappropriateness of a CE and how 
the proposed action would have ``significant impacts'', the commenter 
listed several factors defined under 40 CFR 1508.27 and believed the 
following: (1) the proposed delay will be highly controversial with the 
public, as is the science NMFS is using to supports its CE 
determination; (2) there are questions regarding the data and science 
NMFS is relying on; (3) there may be a cumulatively significant impacts 
on the environment from the delay; (4) a delay in implementation will 
affect three endangered species (right, humpback, and fin whales), and 
NMFS' Federal Register notice does not mention the species or their 
status; and (5) the proposed delay will violate the MMPA's deadlines.
    Response: NMFS determined that this action is categorically 
excluded from the requirement to prepare an EA or EIS in accordance 
with sections 6.03a.3(a) and 6.03c.3(d) of NAO 216-6. NMFS added 
clarification text to the ``Classification'' section of the proposed 
rule to relate each section to the associated action being considered, 
and expands upon the justification here. Under section 6.03a.3(a) of 
NAO 216-6 the revision includes a delay amendment that ``will hold no 
potential for significant environmental impacts.'' Specifically, NMFS 
has determined that the impact on large whales from this delay would be 
minimal (see response to Comment 34 below for information on the 
rationale). Additionally, NMFS determined that a delay in the effective 
date of the requirement to sinking line will delay the benefit afforded 
by this change for six months, but will not, in itself, cause harm to 
ESA-listed cetaceans. Additionally, under section 6.03c.3(d) of NAO 
216-6 this amendment would will facilitate enforcement efforts. 
Specifically, this action will help to clarify the intent of the agency 
with respect to the type of sinking line to purchase and to aid in 
enforcement of the current regulations.
    This action does not trigger the exceptions to categorical 
exclusions listed in NAO 216-6, Section 5.05c, because it:
    (1) Does not involve a geographic area with unique characteristics. 
The Atlantic coast includes many diverse characteristics;
    (2) Is not the subject of public controversy based on potential 
environmental consequences. This action is not scientifically 
controversial (see response to Comment 37 below);
    (3) Does not involve uncertain environmental impacts or unique or 
unknown risks. See the biological information summarized in the 
paragraph above, as well as in the proposed rule and RIR;
    (4) Does not establish a precedent or decision in principle about 
future proposals. See responses to Comments 23 and 39 with regards to 
other proposals;
    (5) Does not result in cumulatively significant impacts. NMFS 
determined that a delay in the effective date of the requirement to 
sinking line will delay the benefit afforded by this change for six 
months, but will not, in itself, cause harm to ESA-listed cetaceans. 
See the biological information summarized in the paragraph above, as 
well as in the proposed rule and RIR. Also, as noted in NMFS Notice of 
Intent (NOI) to conduct an EIS (68 FR 38676, June 30, 2003), this EIS 
was originally intended to analyze impacts to the environment of 
different management alternatives that would finalize the SAM program. 
However, due to continuing large whale entanglements in fishing gear 
since the publication of the SAM interim final rule, NMFS determined 
that additional modifications to the ALWTRP were needed. Therefore, the 
notice announced NMFS' intent to change the scope of the EIS and 
consider more alternatives for possible amendments to the ALWTRP. Thus, 
the rationale for the EIS as noted in the NOI was not related to 
significance but rather expanding the scope of the ALWTRP modifications 
to

[[Page 51240]]

consider. This present action is not as broad in scope as the October 
5, 2007, ALWTRP amendment for which a FEIS (NMFS 2007) was conducted 
and all impacts on the human environment analyzed. This final action 
represents an ALWTRP amendment that is much more limited in scope and 
solely represents a 6-month delay of a requirement and deletion of a 
definition. Additionally, it is important to note that issuing an EIS 
under NEPA does not mean that an action is significant; and
    (6) Does not have any adverse effects upon endangered or threatened 
species or their habitats. NMFS determined that a delay in the 
effective date of the requirement to sinking line will delay the 
benefit afforded by this change but will not, in itself, cause harm to 
ESA-listed cetaceans. Therefore, if there are no adverse effects 
expected from this action then there are also no significant adverse 
impacts (See additional biological information summarized in the 
paragraph above).
    Comment 37: One commenter cited Hawaii County Green Party v. Evans, 
where the Northern District of California refused to allow NMFS to 
issue a CE when amending a scientific research permit, stating that 
NMFS may not issue a CE if ``any of the six exceptions for CEs apply''. 
The court found NMFS could not issue a CE for the research permit 
because legitimate public controversy regarding the permit existed. As 
the commenter felt this proposed action is the subject of public 
controversy, they also believed a CE is not appropriate.
    Response: The cited case is an unpublished decision, and dealt with 
a scientific research permit amendment issued under Section 104 of the 
MMPA. This final action is an amendment to a take reduction plan (i.e., 
a management plan), where a CE is appropriate as the six exceptions do 
not apply. Specifically, related to the exception for public 
controversy, under NEPA this is only meant for scientific controversy 
which NMFS has determined is not applicable this action. The scientific 
information cited for this rulemaking action is based on information in 
the FEIS (NMFS 2007), as well as Pace and Merrick (2008). Although the 
rulemaking that the FEIS supported was controversial, NMFS does not 
consider the underlying scientific data controversial. Additionally, 
NMFS does not consider the Pace and Merrick (2008) document to be 
scientifically controversial.
    Comment 38: NMFS cites sections 6.03a.3(a) of NAO 216-6 which 
allows CEs for certain ``management plans'' and 6.03c.3(d) which allows 
CEs for certain ``administrative'' programs. One commenter believed 
that none these CE categories were applicable. The commenter stated 
that 6.03a.3(a)'s authorization of a CE is limited in scope, and 
although NAO 216-6 does allow CEs to be issued for some ``plan 
amendments'', it specifically requires in 6.03a.3(a) that all ``plan 
amendments not requiring an EIS must be accompanied by an EA unless 
they meet the criteria of a CE in section 5.05b''. The commenter 
maintained that NMFS' proposed delay does not meet the criteria in 
5.05b (1) (same action previously determined to have no significant 
impact) or 5.05b (2) (does not have significant impact under the 
significance factors in 40 CFR1508.27), and accordingly, the proposed 
amendment ``must be accompanied by an EA''. The commenter also stated 
that in section 6.03a.3(b), a specific list of ``plan amendment'' 
actions that warrant a CE are given; however, NMFS does not and could 
not claim that any of these actions apply. The commenter maintained 
that section 6.03a.3(b) is inapplicable, stating that NMFS can not 
argue that the delay in implementation of this measure is a ``minor'' 
or ``technical'' change to the plan nor that the delay or implementing 
the delay without extending SAM/DAM or substituting new protection 
measures would have no effect (6.03a.3(b)(1)). The commenter believed 
that section 6.03c.3(d) also does not apply to the proposed action, as 
NMFS can not justify a 6-month delay of implementation as an 
``administrative or routine'' function under this section. The 
commenter maintained that the proposed rule is a substantive change to 
the ALWTRP final rule and will have the effect of delaying 
implementation of critical protection measures for endangered whales. 
The commenter felt it was unclear which of the administrative programs 
listed in section 6.03c.3 (d) NMFS would believe the proposed amendment 
falls into. As NMFS states that extending the implementation date will 
``facilitate enforcement efforts'' the commenter found it unclear if 
NMFS was suggesting, through this statement, that the delay is exempt 
under section 6.03c.3 (d) as an ``enforcement operation'', and if so, 
the commenter requested the Agency to explain how extending the 
implementation deadline has any relationship to facilitating 
``enforcement''. The commenter went on to assert that ``enforcement 
operations'' in 6.03c.3(d) was intended to cover ``administrative'' 
enforcement decisions, not broad, substantive, rulemaking decisions 
regarding compliance dates. Lastly, the commenter stated that NAO 216-6 
contains a specific section governing NEPA actions for MMPA-related 
decisions, and that according to section 6.03f.1, this ``take reduction 
plan amendment'' requires require an EA, and hence, NMFS is not 
authorized to issue a CE for the proposed action.
    Response: NMFS has determined that this final rule constitutes a 
change to a management plan where a CE is appropriate under section 
6.03a.3(a) of NAO 216-6. Section 6.03f.1. of NAO 216-6 relates to the 
issuance of take reduction plans between marine mammals and commercial 
fisheries, and not necessarily amendments. NMFS did conduct an EA on 
the original implementing regulations to the ALWTRP in 1997. It was 
never NMFS' intent for the implementation of the six month delay to be 
labeled as ``administrative'' or as an ``enforcement 
operation; thus, NMFS relied upon section 6.03a.3(a) of NAO 
216-6 for the six month delay.
    NMFS used section 6.03c.3(d) for the portion of this action of 
deleting the term ``neutrally buoyant line'' in the October 5, 2007, 
final rule to facilitate enforcement efforts. In the October 5, 2007, 
final rule, NMFS included both the terms ``sinking'' and ``neutrally 
buoyant'' line, with identical definitions, in an attempt to include 
familiar industry terms and assist in the understanding of the 
regulations. However, industry feedback since the final rule published 
indicates that using two terms has led to confusion and resulted in 
some fishermen not understanding what type of line is required for the 
groundline. Additionally, trap/pot fishermen have inquired about the 
definition of low profile groundline (a line that does not sink, but 
loops some distance above the ocean bottom lower than floating line), 
and have asked NMFS for clarification on whether neutrally buoyant line 
is the same as low profile line. Therefore, in order to ensure clarity 
regarding the groundline requirement, this action would remove all 
references to the term ``neutrally buoyant line'' from the regulations 
(whereby only ``sinking line'' would remain) to facilitate both 
industry understanding of the regulations and enforcement efforts of 
this requirement. Therefore, this change is for both clarification of 
the regulations for fishermen and to facilitate enforcement. However, 
NMFS also believes that section 6.03a.3(b)(2) could also have been 
cited based on this being a minor technical change to a management 
plan. It is also important to clarify that NMFS did not rely on

[[Page 51241]]

section 6.03a.3(b)(1) for the CE. See response to Comment 36 which also 
addresses comments on NAO 216-6. See response to Comment 34 for 
information on the elimination of the SAM and DAM programs.
    Comment 39: One commenter noted that no other alternatives were 
considered in the proposed rule.
    Response: Under NEPA, alternatives are not required when a CE is 
issued.
Comments on Removal of ``Neutrally Buoyant Line'' and Its Associated 
Definition
    Comment 40: Many commenters supported the proposed removal of the 
term ``neutrally buoyant line'' and its associated definition from the 
ALWTRP regulations. Commenters agreed with NMFS that the deletion of 
this term will avoid potential conflict within the regulations, ensure 
a clearer understanding among fishermen and management, and assist in 
enforcement efforts. One commenter stated that the proposed change 
would not alter existing requirements and could reduce confusion. 
Another commenter agreed that the proposed deletion will eliminate some 
of the confusion within the industry as to which rope is legal to fish 
with under the ALWTRP.
    Response: NMFS agrees with the comments.

Classification

    This final action is categorically excluded from the requirement to 
prepare an Environmental Assessment in accordance with sections 
6.03a.3(a) and 6.03c.3(d) of NAO 216-6. Specifically, under section 
6.03a.3(a) of NAO 216-6 the revision includes a delay amendment that 
``will hold no potential for significant environmental impacts,'' and 
under section 6.03c.3(d) of NAO 216-6 the revision includes removal of 
the ``neutrally buoyant line'' term and definition which would will 
facilitate enforcement efforts. This action does not trigger the 
exceptions to categorical exclusions listed in NAO 216-6, Section 
5.05c; thus, a categorical exclusion memorandum to the file has been 
prepared.This final rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    This final rule does not contain a collection of information 
requirements subject to the Paperwork Reduction Act (PRA).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    NMFS has determined that this final action is consistent to the 
maximum extent practicable with the approved coastal management program 
of the U.S. Atlantic coastal states. The proposed rule was submitted to 
the responsible state agencies for review under section 307 of the 
Coastal Zone Management Act. The following states agreed with NMFS' 
determination: New Hampshire, Rhode Island, New Jersey, Pennsylvania, 
Delaware, Virginia, and Georgia. Maine, Massachusetts, Connecticut, New 
York, Maryland, North Carolina, South Carolina, and Florida did not 
respond, therefore, consistency is inferred.
    This final rule contains policies with federalism implications as 
that term is defined in Executive Order 13132. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs 
provided notice of the proposed rule to the appropriate official(s) of 
affected state, local, and/or tribal governments. Letters were sent to 
officials in Maine, New Hampshire, Massachusetts, Rhode Island, 
Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, 
Delaware, North Carolina, South Carolina, Georgia and Florida. No 
concerns were raised by the states contacted; hence, NMFS will infer 
that these states concur with the finding that the proposed regulations 
for amending the ALWTRP were consistent with fundamental federalism 
principles and federalism policymaking criteria.

References

    NMFS. 2007. Final Environmental Impact Statement for Amending the 
Atlantic Large Whale Take Reduction Plan: Broad-Based Gear 
Modifications. Prepared by: Industrial Economics, Inc. and NOAA's 
National Marine Fisheries Service. Northeast Region.
    Pace, Richard M. III, and Merrick, Richard. 2008. Northwest 
Atlantic Ocean Habitats Important to the Conservation of North Atlantic 
Right Whales. Northeast Fisheries Science Center Reference Document 08-
07. 32 pp.

List of Subjects in 50 CFR Part 229

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

    Dated: August 25, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 229 is amended as 
follows:

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

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

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


0
2. In Sec.  229.2, the definition ``Neutrally buoyant line'' is removed 
and the definition of ``Sinking line'' is revised to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Sinking line means, for both groundlines and buoy lines, line that 
has a specific gravity greater than or equal to 1.030, and, for 
groundlines only, does not float at any point in the water column.
* * * * *

0
3. In Sec.  229.32, revise paragraphs (a)(4), (c)(2)(ii)(D), 
(c)(2)(ii)(E), the first sentence of paragraphs, (c)(5)(ii)(B), 
(c)(6)(ii)(B), (c)(7)(ii)(C), (c)(8)(ii)(B), (c)(9)(ii)(B), 
(d)(6)(ii)(D), (d)(7)(ii)(D), (i)(3)(i)(B)(1)(i), (i)(3)(i)(B)(2)(i), 
and the second sentence of (d)(1)(i) to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

    (a)* * *
    (4) Sinking groundline exemption. The fisheries regulated under 
this section are exempt from the requirement to have groundlines 
composed of sinking line if their groundline is at a depth equal to or 
greater than 280 fathoms (1,680 ft or 512.1 m) (as shown on NOAA charts 
13200 (Georges Bank and Nantucket Shoals, 1:400,000), 12300 (NY 
Approaches - Nantucket Shoals to Five Fathom Bank, 1:400,000), 12200 
(Cape May to Cape Hatteras, 1:419,706), 11520 (Cape Hatteras to 
Charleston, 1:432,720), 11480 (Charleston Light to Cape Canaveral, 
1:449,659) and 11460(Cape Canaveral to Key West, 1:466,940)).
* * * * *
    (c)* * *
    (2)* * *
    (ii)* * *
    (D) Buoy lines. All buoy lines must be composed of sinking line 
except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.

[[Page 51242]]

    (E) Groundlines. All groundlines must be composed entirely of 
sinking line. The attachment of buoys, toggles, or other floatation 
devices to groundlines is prohibited.
* * * * *
    (5)* * *
    (ii)* * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (6) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted for this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (7) * * *
    (ii) * * *
    (C) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (8) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (9) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (d) * * *
    (1) * * *
    (i) * * * If more than one buoy is attached to a single buoy line 
or if a high flyer and a buoy are used together on a single buoy line, 
sinking line must be used between these objects.
* * * * *
    (6) * * *
    (ii) * * *
    (D) Groundlines. On or before October 5, 2008, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (7) * * *
    (ii) * * *
    (D) Groundlines. On or before October 5, 2008, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (i) * * *
    (3) * * *
    (i) * * *
    (B) * * *
    (1) Anchored gillnet gear--(i) Groundlines. All groundlines must be 
made entirely of sinking line. * * *
* * * * *
    (2) Trap/pot gear--(i) Groundlines. All groundlines must be made 
entirely of sinking line. * * *
* * * * *
[FR Doc. E8-20167 Filed 8-29-08; 8:45 am]
BILLING CODE 3510-22-S