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Rule2021-19040

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

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Published

September 17, 2021

Effective

October 18, 2021

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

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

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[Federal Register Volume 86, Number 178 (Friday, September 17, 2021)]
[Rules and Regulations]
[Pages 51970-52024]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19040]

[[Page 51969]]

Vol. 86

Friday,

No. 178

September 17, 2021

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Parts 229 and 697

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

Federal Register / Vol. 86 , No. 178 / Friday, September 17, 2021 /
Rules and Regulations

[[Page 51970]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229 and 697

[Docket No. FR-210827-0171]
RIN 0648-BJ09

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

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

ACTION: Final rule.

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

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

ADDRESSES: Copies of the Final Environmental Impacts Statement (FEIS)
including the Record of Decision, Regulatory Impact Review (RIR), and
Regulatory Flexibility Analysis (RFA) as well as supporting documents
are accessible via the internet on the Atlantic Large Whale Take
Reduction Plan website at: <a href="http://Fisheries.NOAA.gov/ALWTRP">Fisheries.NOAA.gov/ALWTRP</a> or you may request
copies by email from Marisa Trego: <a href="/cdn-cgi/l/email-protection#83cee2f1eaf0e2add7f1e6e4ecc3edece2e2ade4ecf5">[email&#160;protected]</a>.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule should be sent within 30 days of publication of this rule to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a> or by email to Ainsley Smith at
<a href="/cdn-cgi/l/email-protection#e7a68e89948b829ec9b48a8e938fa789888686c9808891">[email&#160;protected]</a>.

FOR FURTHER INFORMATION CONTACT: Dr. Marisa Trego, Marine Mammal Take
Reduction Team Coordinator, phone: (978) 282-8484 or email:
<a href="/cdn-cgi/l/email-protection#c38ea2b1aab0a2ed97b1a6a4ac83adaca2a2eda4acb5">[email&#160;protected]</a>

SUPPLEMENTARY INFORMATION:

Table of Contents

Background
Changes to the Atlantic Large Whale Take Reduction Plan
Changes to the Plan to Reduce the Number of Vertical Buoy Lines
Changes to the Plan to Related to Seasonal Restricted Areas
Changes to the Plan to Establish Weak Rope Requirements
Changes to the Plan for Gear Marking Requirements
Regulatory Language Changes (Definitions)
Changes to Federal Regulations Implementing the American Lobster
Management Plan
Comments and Responses
Classification
References
List of Subjects

Background

This final rule implements modifications to the Atlantic Large
Whale Take Reduction Plan (ALWTRP or Plan) as informed by the Atlantic
Large Whale Take Reduction Team (ALWTRT or Team) and contained in the
proposed rule, as modified based upon public input, including
modifications deemed necessary by NMFS to meet the goals of the Marine
Mammal Protection Act (MMPA) and Endangered Species Act (ESA). The
final rule includes a one-month delay in effectiveness to allow
fishermen time to move gear away from seasonal restricted areas.
Compliance with gear configuration modifications described below
including those changes that require fishermen to modify gear marking,
change gear configurations to increase traps fished on trawls, or
modify buoy lines to accommodate new weak rope and weak insertions is
not required until May 1, 2022. Delayed compliance will provide
fishermen with the time necessary to purchase materials and reconfigure
their gear while conducting other regular gear maintenance activities.
The ALWTRP was originally developed pursuant to section 118 of the
MMPA (16 U.S.C. 1387) to reduce mortality and serious injury of three
stocks of large whales (fin, humpback, and North Atlantic right)
incidental to Category I and II fisheries. Under the MMPA, a strategic
stock of marine mammals is defined as a stock: (1) For which the level
of direct human-caused mortality exceeds the Potential Biological
Removal (PBR) level; (2) which, based on the best available scientific
information, is declining and is likely to be listed as a threatened
species under the ESA of 1973 within the foreseeable future; or (3)
which is listed as a threatened or endangered species under the ESA or
is designated as depleted under the MMPA (16 U.S.C. 1362(19)). When
incidental mortality or serious injury of marine mammals from
commercial fishing exceeds a stock's PBR level, the MMPA directs NMFS
to convene a take reduction team made up of stakeholders including
representatives of Federal agencies, each coastal state which has
fisheries which interact with the species or stock, appropriate
Regional Fishery Management Councils, interstate fisheries commissions,
academic and scientific organizations, environmental groups, all
commercial and recreational fisheries groups and gear types which
incidentally take the species or stock, and if relevant, Alaska Native
organizations or Indian tribal organizations.\1\
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\1\ There are no Alaska Native or Indian tribal organizations
participating in fisheries managed under the Atlantic Large Whale
Take Reduction Team.
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The ALWTRT was established in 1996 and has 60 members, including
about 22 trap/pot and gillnet fishermen or fishery representatives. The
background for the take reduction planning process and initial
development of the Plan is provided in the preambles to the proposed
(62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22,
1997), and final (64 FR 7529, February 16, 1999) rules implementing the
initial plan. The Team met and recommended modifications to the Plan,
implemented by NMFS through rulemaking, several times since 1997 in an
ongoing effort to meet the MMPA take reduction goals. Despite
modifications to the Plan (notably the use of sinking groundlines
effective in 2009 (72 FR 57104) and efforts to reduce the number of
vertical buoy lines and an expansion of the Massachusetts Restricted
Area (MRA) effective in 2015 (79 FR 36586, 79 FR 73848, and 80 FR
30367)), mortalities and serious injuries of right whales in U.S. gear
and first seen in U.S. waters at levels above PBR have continued.
NMFS informed the Team in late 2017 that it was necessary to
reconvene to develop recommendations to reduce the impacts of U.S.
commercial fisheries on

[[Page 51971]]

large whales with a focus on reducing risk to the declining North
Atlantic right whale population (Pace et al. 2017). Seventeen right
whale mortalities were observed in 2017, including many determined to
have been caused by vessel strikes and entanglements, leading to a
declaration of a right whale Unusual Mortality Event. An annual average
of five entanglement-related mortalities and serious injuries were
documented from 2009 through 2018. Most could not be identified to a
country of origin; only 0.2 per year could be attributed with certainty
to U.S. fisheries, only 0.7 per year to Canadian fisheries, and an
average of four per year could not be attributed to either country. For
the purposes of creating a risk reduction target, NMFS assigned half of
the unknown entanglement incidents to U.S. fisheries. Under this
assumption, based on documented mortality and serious entanglement
incidents, a 60-percent reduction would be needed to reduce right whale
mortality and serious injury in U.S. commercial fisheries from an
annual average PBR of 2.2 to below the current PBR of 0.8 per year.
However, documented mortalities and serious injuries represent a
minimum count and unobserved mortalities and serious injuries are not
considered in the 60-percent target risk reduction. An upper bound
target of 80 percent considered estimated mortalities generated by the
Pace et al. 2017 population model that estimates unobserved mortality
(Hayes et al. 2019). Currently, there is no way to definitively
apportion unseen but estimated mortality across causes (fishery
interaction vs. vessel strike) or country of origin (United States vs.
Canada). For the purposes of developing a conservative target to meet
the MMPA goals, in 2019 NMFS assumed that half of the estimated
undocumented incidents occurred in U.S. waters and were caused
primarily by incidental entanglements. However, given the assumptions
and other sources of uncertainty in the 80-percent target, as well as
the challenges achieving such a target, the Team focused on developing
recommendations to achieve the lower 60-percent target.
Greater detail on right whale population estimates, the stock's
decline, changes in distribution and reproductive rates, and
entanglement-related mortalities and serious injuries documented in
recent years can be found in the preamble to the proposed rule (85 FR
86878 December 31, 2020), and are briefly summarized in Chapter 2 of
the FEIS.
During a Team meeting in April 2019, the Team recommended a
framework of measures to modify lobster and Jonah crab trap/pot trawls
within the Northeast Region Trap/Pot Management Area (Northeast Region)
intended to reduce risk of mortality and serious injury to right whales
incidentally entangled in buoy line in those fisheries by at least 60
percent. The Team's near-consensus recommendations included
jurisdictionally specific combinations of line reduction measures to
reduce right whale encounters with buoy lines and weak rope
requirements to increase the chance of right whales parting the rope
(self-releasing) to reduce mortalities and serious injuries when
entanglements do occur. As described in more detail in the preamble to
the proposed rule and in Chapter 3 of the FEIS, the Team's
recommendations were not fully crafted as regulatory elements, and the
proposed rule and draft environmental impact statement (DEIS) included
modifications to the Team's recommendations based on public scoping and
input from New England states related to implementation and operational
feasibility. The proposed rule analyzed in the DEIS included less line
reduction and weak rope than the Team recommended, and included
additional measures to reduce right whale co-occurrence through new or
expanded seasonal restricted areas. Although the Team did not make
recommendations on the existing weak link requirement at the buoy line
or on the proposed change to transition seasonal restricted areas to be
closures to fishing with buoy lines rather than closures to fishing
altogether, those measures were also proposed and analyzed. Finally,
gear marking recommendations were discussed by the Team and received
general support, but specific gear marking requirements were never
taken to a vote for consensus, and gear marking requirements were not
included in the Team's recommendations. Comments on the proposed rule
and DEIS as well as new information regarding right whales were
considered in the development of this final rule.
The public's vast input into this regulatory effort demonstrates
stakeholder interest in conserving and recovering the North Atlantic
right whale while also ensuring the development of operationally
feasible and economical risk reduction measures. Benefits of large
whale protection are difficult to describe in monetary value, but
include non-consumer use benefits, non-use benefits, and potential
costs savings from current disentanglements efforts. Economic research
has demonstrated that society places economic value on environmental
assets, whether or not those assets are ever directly exploited. The
large number of commenters shows that society places real (and
potentially measurable) economic value on simply knowing that large
whale populations are flourishing in their natural environment (often
referred to as ``existence value'') and will be preserved for the
enjoyment of future generations. Collateral benefits to other species
are also incurred through buoy line reductions that benefit other
endangered species of large whales and endangered sea turtles, and
weaker rope that would benefit other large whales.
Protection to large whales under the take reduction process,
however, cannot be done without an economic impact. The annual cost of
compliance for this rulemaking is $9.8-19.2 million, representing 1.5
to 3 percent of the 2019 landings value of the fisheries. However,
given the input of fishermen and fishery managers, operationally
feasible measures were developed that, relative to the other
alternative analyzed, achieve the purposes of this rulemaking with
nearly the same risk reduction but a much lesser economic impact on
regulated entities than the analyzed non-preferred Alternative.

Changes to the Atlantic Large Whale Take Reduction Plan

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

[[Page 51972]]

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

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

Table 1--Line Reduction Measures
------------------------------------------------------------------------
Area Traps/trawl
------------------------------------------------------------------------
ME 3 nm (5.56 km)-6 nm *, Zone A West.. 8 traps/trawl per two buoy
lines or 4 traps/trawl per one
buoy line.
ME 3 nm (5.56 km)-6 nm *, Zone B....... 5 traps/trawl per one buoy
line.
ME 3 nm (5.56 km)-6 nm*, Zones C, D, E, 10 traps/trawl per two buoy
F, G. lines or 5 traps/trawl per one
buoy line.
ME 3 nm (5.56 km)-12 nm (22.22 km), 20 traps/trawl per two buoy
Zone A East. lines or 10 traps/trawl per
one buoy line.
ME 6*-12 nm, Zone A West............... 15 traps/trawl per two buoy
lines or 8 traps/trawl per one
buoy line.
ME 6*-12 nm, Zone B, D, E, F........... 10 traps/trawl per two buoy
lines or 5 traps/trawl per one
buoy line (status quo in D, E,
& F).
ME 6*-12 nm, Zone C, G................. 20 traps/trawl per two buoy
lines or 10 traps/trawl per
one buoy line.
MA Lobster Management Area (LMA) 1, 6*- 15 traps/trawl.
12 nm.
LMA 1 & Outer Cape Cod (OCC) 3-12 nm 15 traps/trawl.
(5.56-22.22 km).
LMA 1 over 12 nm (22.22 km)............ 25 traps/trawl.
LMA3, North of 50 fathom line on the 45 traps/trawl, increase
south end of Georges Bank. maximum trawl length from 1.5
nm (2.78 km) to 1.75 nm (3.24
km).
LMA3, South of 50 fathom line on the 35 traps/trawl, increase
south end of Georges Bank. maximum trawl length from 1.5
nm (2.78 km) to 1.75 nm (3.24
km).
LMA3, Georges Basin Restricted Area.... 50 traps/trawl, increase
maximum trawl length from 1.5
nm (2.78 km) to 1.75 nm (3.24
km).
------------------------------------------------------------------------
* ME 6 is a line offshore of Maine that is approximately 6 nm (11.1 km)
from the coast.

Changes to the Plan Related to Seasonal Restricted Areas

The rule modifies closures in two restricted areas, the
Massachusetts Restricted Area and the Great South Channel Restricted
Area, by implementing closures to buoy lines rather than closures to
the harvest of lobster or Jonah crab by the trap-pot fishery. The
change would not include the Outer Cape Cod (OCC) Lobster Management
Area (LMA), which remains closed to the lobster and Jonah crab trap/pot
fishery under Massachusetts and Federal regulations (32 Mass. Reg 6.02
paragraph(7)(a) and 50 CFR 697.7(c)(1)(xxx)) implementing the Atlantic
State Marine Fisheries Commission's (Commission) Interstate Fishery
Management Plan for American Lobster. This modification allows
fishermen with authorization to be exempt from surface marking
requirements (buoys, radar reflectors, and high flyers) to fish these
areas if they fish without the use of persistent buoy lines by remotely
retrieving traps from the bottom using an acoustic signal, or through
other means that do not require a persistent buoy line. This measure is
intended to accelerate research and development of buoyless fishing
methods, commonly termed ``ropeless'' fishing, so that in the future,
commercial fishing using ropeless technology can be used in place of
seasonal closures to allow trap/pot fishing while protecting right
whales.
NMFS has invested a substantial amount of funding in developing
ropeless fishing gear. We anticipate that these efforts to facilitate
and support the industry's development of ropeless gear will continue,
pending appropriations. Given the high cost of ropeless retrieval
technology, for the foreseeable future, industry participants are
likely to depend on loans of gear purchased by the Northeast Fisheries
Science Center for ropeless research collaborations. By 2025, we
anticipate this would allow up to 33 fishermen to fish with up to 10
trawls each in the Northeast Region, including the restricted areas.
Because they would be fishing under Federal exempted fishing permits
(EFP) or equivalent state authorization, conditions to minimize impacts
on the natural and human environment will likely include some area
restrictions, reporting and monitoring requirements, gear marking of
any stored buoy line, and evidence of communication and collaboration
with adjacent fixed and mobile gear fishermen to minimize gear
conflicts.
This rule also extends the area of the Massachusetts Restricted
Area north to the New Hampshire border for state waters, mirroring the
Massachusetts 2021 modification of the state water closure (322 CMR
12.04(2)). This final rule does not adopt the Massachusetts seasonal
extension through May 15, but instead retains the February through
April seasonal closure.
This rule also establishes two new restricted areas that would be
seasonally closed to fishing for lobster and Jonah crab with persistent
buoy lines. The LMA 1 Restricted Area would be closed to buoy lines
from October through January. The South Island Restricted Area would be
closed to buoy lines from February through April. Figure 1 shows
existing (dark gray) and new (light gray) seasonal restricted areas.

[[Page 51973]]

[GRAPHIC] [TIFF OMITTED] TR17SE21.000

Changes to the Plan To Establish Weak Rope Requirements

This rule removes the requirement for a weak link at the buoy in
the Northeast Region commercial lobster and Jonah crab trap/pot
fisheries. As described in Table 2, all buoy lines in these fisheries
will have weak rope or weak insertions well below the surface system.
There is little information available to determine the efficacy of weak
links at the buoy in reducing entanglement severity. Models suggest
that when a whale encounters rope in the water column, the rope parts
below the encounter (Knowlton et al. 2020). Retention of the buoy may
have some benefits: Buoys have identifying marks that could improve our
understanding of set locations of retrieved gear or may provide
resistance and pull gear away from a whale, improving the chances of
shedding gear.
Depending on the area fished and distance from shore, this rule
requires all buoy lines in the fisheries to use engineered weak rope or
weak inserts as described in Table 2. Under most operational
conditions, weak rope or a weak insertion within the top half of a buoy
line would not be subject to forces approaching or greater than 1,700
lb (771.1 kg) during hauls. Weak insertion placement locations were
developed and proposed by Maine Department of Marine Resources (DMR),
with much input from Maine fishermen who identified measures that could
work with their existing gear, even with the longer trawl lengths being
implemented. These measures reduce economic impacts and concerns that
longer trawl lengths would result in strong and more dangerous buoy
ropes.

Table 2--Weak Rope Measures
------------------------------------------------------------------------
Area Weak rope or weak insertions
------------------------------------------------------------------------
Northeast Region....................... For all buoy lines
incorporating weak line or
weak insertions, remove weak
link requirement at surface
system.
ME state waters outside of exemption 1 weak insertion 50 percent
line. down the line.
MA State Waters........................ Fully weak line or weak inserts
every 60 ft (18.3 m) in top 75
percent of line.
NH state waters........................ 1 weak insertion 50 percent
down the line.
RI wtate waters........................ Fully weak line or weak inserts
every 60 ft (18.3 m) in top 75
percent of line.
ME Zone A west, B, C, D, E; Federal 2 weak insertions, at 25
waters 3-12 nm (5.56-22.22 km). percent and 50 percent down
line.
ME Zone A east, F, and G; Federal 1 weak insertion 33 percent
waters 3-12 nm (5.56-22.22 km). down the line.
MA and NH LMA 1 , OCC; Federal waters 3- 2 weak insertions, at 25
12 nm (5.56-22.22 km). percent and 50 percent down
line.

[[Page 51974]]

LMA 1 & OCC over 12 nm (22.22 km)...... 1 weak insertion 33 percent
down the line.
LMA 2.................................. Fully weak line or weak inserts
every 60 ft (18.3 m) in top 75
percent of line.
LMA 3.................................. One buoy line weak to 75
percent.
------------------------------------------------------------------------

A number of approved weak insertions are detailed in this
regulation. To be approved, these weak inserts were demonstrated to
break at 1,700 lb (771.1 kg) or less through 10 trials with a
calibrated rope breaking machine, they are considered replicable, and
are large enough and created with a contrasting color so they can be
detected for enforcement purposes.
This rule also includes a provision for the Greater Atlantic
Regional Administrator to approve in writing new weak insertions that
are demonstrated to break at 1,700 lb (771.1 kg) or less and to include
information about approved weak insertions on the ALWTRP website. The
current regulations indicate that the NMFS Assistant Administrator
would approve new weak insertions, as well as weak link and gear
marking modifications. In actual practice, the NMFS Greater Atlantic
Regional Administrator makes that determination, therefore these edits
are made for accuracy. A definition for the Regional Administrator was
added to the definitions list in 50 CFR part 229.

Changes to the Plan for Gear Marking Requirements

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

Table 3--Gear Marking Modifications
------------------------------------------------------------------------
Northeast Region Lobster and Jonah
Area Crab Trap/Pot Gear Marking
Requirement
------------------------------------------------------------------------
State Waters...................... One 3-foot (0.9-m) state-specific
colored mark (based on principal
port state) in surface system
within 2 fathoms (3.7 m) of the
buoy. At least two 1-foot (0.3-m)
marks in the state (principal port)
color in the primary buoy line, one
in the top half and one in the
bottom half. Maine exempt waters
will be regulated by Maine and not
included in Federal regulations.
All Northeast Region Federal A 3-foot (0.9-m) state-specific
waters, except LMA 3. colored mark within two fathoms
(3.7m) of the buoy. At least three
1-foot (0.3-m) marks in the state
(principal port) color on the top,
middle and bottom of the primary
buoy line. Additional Northeast
Region Federal water mark within 6
inches of each state-specific
color: 1-foot (0.3-m) long green
marks. For dual permitted vessels,
state regulations will determine
whether green Federal markings can
remain on gear being fished in
state waters.
LMA 3............................. A 3-foot (0.9-m) black mark within 2
fathoms (3.7 m) of the buoy. At
least three 1-foot (0.3-m) black
marks on the top, middle and bottom
of the primary buoy line.
Additional Northeast Region Federal
water mark within 6 inches of each
black mark: 1-foot (0.3-m) long
green marks within 6 inches (15.24
cm).
------------------------------------------------------------------------

Regulatory Language Changes (Definitions)

This rule adds three definitions to Sec. 229.2. A definition is
added for ``Lobster Management Area'' to reference the management areas
that were developed for the American lobster fishery, citing the
Atlantic Coastal Fisheries Cooperative Management Act regulations at 50
CFR 697.18. A definition for ``surface system'' is added for clarity
related to the gear marking requirements. A definition for ``Regional
Administrator'' is added to clarify approvals for any new weak
insertions and provide information about approved weak insertions on
the ALWTRP website.
A housekeeping edit is made to the Table in paragraph (c)(2(iv)
completing a blank cell in the table by clarifying that there is no
minimum number of traps per trawl in the Southern Nearshore Trap/Pot
Waters Area.

[[Page 51975]]

Changes to Federal Regulations Implementing the American Lobster
Management Plan

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

Comments and Responses

We published the Proposed Rule to Amend the Atlantic Large Whale
Take Reduction Plan to Reduce Risk of Serious Injury and Mortality to
North Atlantic Right Whales Caused by Entanglement in Northeast Crab
and Lobster Trap/Pot Fisheries and DEIS on December 31, 2020. A 60-day
public comment period began on December 31, 2020, and ended on March 1,
2021 (85 FR 86878, December 31, 2020). We reviewed and considered all
written and oral public submissions received during the public comment
period. Comments on the proposed rule and DEIS were accepted as
electronic submissions via <a href="http://regulations.gov">regulations.gov</a> on docket number NOAA-NMFS-
2020-0031, as electronic submissions via email to a NMFS
representative, and comments submitted orally at public information
sessions and hearings.
In January 2021, we held four public information sessions and in
February 2021, we held four public hearings, all virtual due to the
global pandemic. The sessions were organized by region, though everyone
was welcome to attend any session. Although the purpose of the January
meetings was to provide information and answer questions, we accepted
oral comments on the proposed rule and the DEIS at all eight meetings.
A total of 122 speakers submitted comments orally at public information
sessions or public hearings. Many of the speakers submitted more than
one comment, and several submitted comments at more than one session.
If an individual commented at more than one session, the individual was
counted as a unique speaker on each day. We received 2 comments from
academic/scientific individuals or organizations, 3 fishing industry
associations, 27 non-governmental organizations, 27 members of the
public, 59 fishermen, 2 state fishery resource managers, and 2 state/
Federal legislators.
We received 171,213 written comments on the Proposed Rule and the
DEIS through the comment portal. Of these, six comments from Non-
Governmental Organizations were entered as counting for more than one
comment: Pew Charitable Trusts: 47,699; Conservation Law Foundation:
1,192; Humane Society of the U.S: 15,922; Oceana: 18,440; Natural
Resources Defense Council: 33,045; and Riverkeepers: 4. Five additional
comments from Non-Governmental Organization were entered as one
comment, but had thousands of signatures attached: International Fund
for Animal Welfare: 31,912; Whale and Dolphin Conservation: 3,629;
Environment America: 11,727; Center for Biological Diversity: 26,594;
and Environmental Action: 11,135.
All of the above-referenced comments, which represent up to 201,269
people, were in favor of stronger regulations to protect North Atlantic
right whales. They strongly favored the following measures: Longer and
larger restricted areas, increased gear marking, transition to ropeless
gear, and a risk reduction target of more than 60 percent. While many
were in favor of weak rope or weak link requirements, many also voiced
concerns that 1700 lb breaking strength has not been proven to reduce
entanglements and could still severely entangle juveniles and calves.
In addition, the vast majority urged NMFS to use the most updated
population data in setting risk reduction targets and recommended the
use of emergency measures to take action immediately.
After accounting for the bulk submissions, we received 53,585
comments uploaded through the <a href="http://regulations.gov">regulations.gov</a> portal, as well as 9
comments emailed directly to our office, 3 of which were added to
<a href="http://regulations.gov">regulations.gov</a>, and are included in the 53,585 total above. After
running a deduplication analysis, identifying additional campaign
emails not detected by the deduplication analysis, and reviewing the
entries for double submissions or submissions of supporting
documentation separate from the original comment letter, we received
approximately 1,076 unique comments that were not clearly part of a
coordinated campaign. We received 28 comments from academic/scientific
individuals or organizations, 2 Federal agencies, 1 Federal resource
manager, 2 fishery management associations, 10 fishing industry
associations, 2 manufacturers, 71 non-governmental organizations, 617
members of the public, 300 fishermen, 2 representatives from other
industries, 32 state/Federal legislators, 7 state fishery resource
managers, and 2 towns.
As many of the speakers who submitted comments orally also
submitted comments through the <a href="http://regulations.gov">regulations.gov</a> portal, we considered
each individual's comments, both oral and written, as one submission.
This gives us a total of 1,129 unique submissions. Combining both
written and oral submissions, and excluding duplicates, we received
submissions from 28 academic/scientific individuals or organizations, 2
Federal agencies, 1 Federal resource manager, 2 fishery management
associations, 10 fishing industry associations, 2 manufacturers, 76
non-governmental organizations, 628 members of the public, 336
fishermen, 2 representatives from other industries, 33 state/Federal
legislators, 7 state fishery resource managers, and 2 towns.
Of the 336 unique commenters who identified themselves as
fishermen, either directly or through context, 312 voiced opposition to
all or part of the rule, 19 commented on particular provisions, but did
not expressly support or oppose, and 5 supported the general idea of
the rule, though had specific comments on some measures. Of the ten
fishing industry groups, eight opposed all or part of the rule, one
gave specific recommendations, but did expressly support or oppose, and
one supported the general idea of the rule. The primary concerns raised
by fishermen are that right whales are not in the areas that they fish
and this rule will not protect right whales, but instead will place a
large economic burden on fishermen with no benefit for the whales
(>147); the economic impact of this rule will put them out of business
and devastate coastal communities (>126); and that ropeless fishing is
not yet and may never be feasible on a large scale (>105).
Of the 628 unique commenters who identified themselves as members
of the public, either directly or through context, the vast majority
(534) supported this rule, but expressed the opinion that the rule did
not go far enough to protect right whales, with 84 suggesting NMFS use
emergency authority to implement immediate protections for whales. Only
54 expressed opposition to the rule. A small number suggested that this
rule

[[Page 51976]]

should be withdrawn because it does not provide adequate levels of
protection for right whales, and NMFS should start over.
To summarize, overall, nearly 59 percent of unique commenters
supported the Proposed Rule in whole or in part, with the majority
expressing the opinion that the proposed regulations should be
strengthened to provide more protection to right whales. A little over
34 percent of commenters opposed the rule in whole or in part, and
about 4 percent suggested that the rule should be withdrawn because it
does not provide adequate levels of protection for right whales, and
NMFS should start over. About 4 percent of commenters did not express
support or opposition, but suggested specific measures or strategies
that NMFS should employ. In addition, about 14 percent of commenters
(who had either supported the rule or suggested starting over) wanted
NMFS to take emergency action.
We identified a total of 187 distinct substantive comments that
were within the scope of the current rulemaking. The majority of these
comments were submitted by multiple people, some of them by thousands
of people. We also received several comments that were outside the
scope of the current rulemaking, which are summarized below. The final
rule and analyses in the FEIS are related to amendments to the Plan.
The Plan and the take reduction process are restricted to the
monitoring and management of incidental mortality and serious injury of
marine mammals in U.S. commercial fisheries. Because these comments
were out of the scope of the final rule and the FEIS, we did not
provide responses in this document.
Below, we summarize the comments received in the topic category,
and then provide specific comments and responses to each. Responses may
refer to portions of the FEIS or final rule that have been modified as
a result of comments (to obtain copies of the FEIS see ADDRESSES). We
also made changes to the DEIS and the rule in response to the comments,
where appropriate, including updates to data where the comments affect
the impact analysis. Technical or editorial comments on the DEIS merely
pointing out a mistake or missing information were addressed directly
in the body of the FEIS and final rule.
Due to the large number of comments, they are organized according
to the following specific topics: 1. Canada, 2. Economics, 3.
Enforcement, 4. Gear Marking, 5. Legal Issues, 6. Line/Effort
Reduction, 7. Management, 8. Research, 9. Restricted Areas, 10.
Ropeless Gear, 11. Stressors, 12. Trawls, 13. Weak Links/Inserts/Rope,
14. Out of Scope.

1. Canada

Of the 1,129 unique comments, around 43 suggested that Canadian
fishing gear is largely to blame for the recent right whale mortalities
and entanglements, and that Canada needs to do more to reduce right
whale mortalities and serious injuries. In addition to these
commenters, dozens of others felt it was unfair that U.S. fishermen are
being asked to make expensive and time-consuming changes to fishing
gear and practices, and many questioned NMFS's apportionment of unknown
entanglements in determining how much risk reduction was needed to
reduce U.S. commercial fishery interactions to the PBR level
established under the MMPA.
Comment 1.1: Canadian fishing gear is primarily responsible for
recent right whale entanglements and mortalities, not U.S. fishing
gear, and NMFS should not attribute 50 percent of the unknown gear to
the United States.
Response: In recent years, gear has only been retrieved from about
54 percent of the detected right whale entanglement events. The
majority of the entangling line retrieved is of unknown origin. During
2010-2019, out of 114 documented right whale entanglement incidents,
gear was present on 62 whales. Of these, gear could be identified to a
country in only 25 incidents (22 percent of all observed incidents): 18
were documented Canadian cases (14 Canadian snow crab, 4 unknown
Canadian) and 7 were documented U.S. cases (1 gillnet, 1 lobster, 2
unknown trap, 3 unknown United States). The remaining 37 incidents
involved gear of unknown origin (6 unknown gillnet/mesh, 1 unknown
trap, 30 unknown line). Out of approximately 1.24 million buoy lines
within the Northeast waters from Rhode Island to Maine, we estimate
that 72 percent of buoy lines were unmarked under current ALWTRP gear
marking guidelines although that percentage was reduced when Maine
required gear marks on lobster trap buoy lines beginning in September
2020.
It is important to consider that most right whale mortalities are
never seen. Entanglement incidents detected in the Gulf of St. Lawrence
in recent years from May to early November may reflect some observer
bias as the result of the extensive survey effort since late summer
2017 in an enclosed water body. During most of that season, the
whereabouts of the two-thirds of the population that were not detected
in the Gulf of St. Lawrence remains largely unknown. While acoustic
detections indicate that right whales are present in U.S. waters year
round, counts of individuals when spread over large areas remain
outside of current capabilities but, given Gulf of St. Lawrence counts,
the entire population could be present in U.S. waters from December
through April and up to two thirds of them could be present year round.
U.S. fisheries fish many more buoy lines than Canadian fisheries. That
exposure to U.S. fisheries is balanced, however, by the many broad
scale gear modifications in place, as well as seasonal restricted areas
implemented under the Plan. However lacking an actual estimate of the
proportion of the right whale population's exposure to U.S. or Canadian
fisheries each year, in 2019 NMFS apportioned unknown mortality using a
50/50 split that recognized that more whales may be exposed over more
months to fishing gear in U.S. waters (suggesting higher opportunity
for entanglement) but broad based U.S. conservation measures would
reduce mortality and serious injury. This apportionment also recognizes
that mortality is occurring on both sides of the border, and that U.S.
and Canadian measures are needed to reduce human-caused mortality to
this transboundary species to recover the population. For more, see
FEIS Section 2.1.5.
Comment 1.2: Canada's current regulations are insufficient, as they
rely on dynamic management, which could fail due to lack of visual or
acoustic detections, and the delay of weak rope implementation until
the end of 2022.
Response: Under the MMPA, NMFS is responsible for U.S. fisheries
and protected species within our borders and on the high seas. We work
closely with our Canadian partners through bilateral meetings,
coordinated disentanglement efforts, distribution and abundance data,
health assessment, and gear analysis. Since July 2017, Canada has shown
a commitment to reduce the impacts of their fisheries on the North
Atlantic right whale population and they affirm that commitment in
these bilateral efforts. The Canadian Department of Fisheries and
Oceans (DFO) is responsible for fisheries management and protected
species within their borders, and any concerns about their management
measures should be directed to Canada's DFO.
Comment 1.3: Canada and the United States should collaborate in
monitoring, data collection, and technology development to understand
whale movements and sources of mortality,

[[Page 51977]]

and the United States should pressure Canada into doing more.
Response: NMFS coordinates with Canada on right whale conservation
and recovery efforts through bilateral discussions and frequent
information sharing with the DFO and Transport Canada at both the
senior leadership and staff levels. NMFS senior leadership have had
discussions with leadership from DFO and Transport Canada on
conservation and management efforts for right whales since 2019, and
plan to continue these discussions. We also coordinate and cooperate
with DFO and Transport Canada through the Canada and United States
Bilateral Working Group on North Atlantic Right Whales. This includes
discussing lessons learned on fishing and vessel regulations, planning
joint scientific activities (e.g., aerial surveys), and coordinating
collaboration across all right whale conservation efforts.
Comment 1.4: Maine's Department of Marine Resources should be
allowed to participate in all future bilateral meetings with Canada.
Response: The U.S. Government routinely conducts bilateral
consultations with foreign counterparts on issues of fisheries
management. Several of these ongoing consultations are founded in
formal collaborative agreements, while others occur through less formal
arrangements. Discussions often include sensitive topics, such as
respective positions being considered for multilateral organizations.
Consequently, such consultations are restricted to Federal government
personnel.

2. Economics

Approximately 143 commenters voiced concerns that this rule would
cause them extreme economic hardship, with some stating that this rule
would put them out of business. Many commenters expressed concern about
the effects of this rule on the economic health of their communities,
the supply chain, and on the state of Maine. Several questioned NMFS'
economic analysis and suggested additional factors to consider in the
economic analysis. Others were concerned that economics inappropriately
and illegally dictated the alternatives considered in this rule; see
the Legal Issues section for responses to those comments.
Comment 2.1: The new regulations will drive up costs, making
fishermen unable to compete with Canada, resulting in the loss of an
iconic U.S. fishery.
Response: Under the Fish and Fish Product Import Provisions of the
MMPA published on August 15, 2016 (81 FR 54389), fish and fish products
from fisheries identified by the NOAA Assistant Administrator in the
List of Foreign Fisheries can only be imported into the United States
if the harvesting nation has applied for and received a comparability
finding from NMFS. Nations have until November 30, 2021, to apply for
Comparability Findings for their fisheries. Beginning January 1, 2023,
all nations seeking to continue exporting fish and fish products to the
United States must have received Comparability Findings. Beginning in
2023, Canadian lobster and snow crab fisheries will face similar
conservation costs for large whale protection if they wish to enter the
U.S. seafood market. The new MMPA import regulations are intended to
even the playing field.
Comment 2.2: NMFS underestimated the economic costs of the LMA1
seasonal restricted area because it did not take into account; (1)
total affected vessels, (2) displacement of effort from those vessels,
(3) changes in value to landings.
Response: Based on the comments received, we identified new and
updated data sources and have revised our estimation methods. In the
DEIS, we relied on the Industrial Economics (IEc) model vessel data and
calculated catch per trap using NMFS Vessel Trip Report data. Because
only about 10 percent of Maine vessels provide trip reports annually,
these data may not have reflected the catch rates and landings achieved
by vessels fishing in the seasonal restricted areas. Due to public
comments, we updated the analysis using Maine Department of Marine
Resources (Maine DMR) harvester and dealer report data to re-estimate
the total landings outside 12 nm. Please see FEIS Section 6.3.4.1 for
details.
Further, not all landings would be lost when the restricted area is
in place. Fishermen are expected to relocate their gear to fishing
grounds within the same or directly adjacent Maine lobster management
zones. As fishermen commented, vessels already fishing in those
adjacent fishing grounds would then be crowded, reducing their catch
rates. We have included the crowding effects to other vessels in the
surrounding areas in our economic calculations in the FEIS. We also
assume a 5-10 percent reduction rate based on the natural lobster
mortality rate. Nearly all the lobsters not caught during the
restricted area closure are assumed to be caught at other locations or
later in the year. Looking at the industry as a whole, the lost value
to the entire fleet would be those lobsters dying from natural causes.
In Table 6.12, as one commenter noted, we had incorrect information
on the lobster price unit leading to an error in the landings values.
The prices displayed in the table are in dollars per pound but should
have been calculated as dollars per kilogram. However, the costs in the
last two columns are still correct, as they were calculated separately
using pounds.
Comment 2.3: NMFS should include the potential benefit of reducing
the need for disentanglement efforts in the economic effects analysis.
We ask NMFS to evaluate the annual average costs of retaining each
disentanglement team, including its equipment, insurance requirements,
and staff.
Response: We agree that we should consider this in our economic
analysis, and have revised our analysis to include an estimate of
disentanglement costs as well as the potential benefit of reducing the
need for disentanglement efforts. See the qualitative and quantitative
discussion in FEIS Section 9.6.4.
Comment 2.4: The DEIS does not analyze the economic benefits of
ropeless fishing.
Response: This rule does not require fishermen to fish with
``ropeless'' fishing gear. However, in response to commenters, we added
some analysis of the economic costs and benefits of ropeless fishing to
FEIS Section 6.3.3, and some details of anticipated impacts can be
found in response to comments below in response to Comment 9.4.
Comment 2.5: The Proposed Rule fails to account for the full
benefits of weakening vertical lines to reduce mortality and serious
injury from entanglements. The full benefits should be taken into
account in the development of a final rule.
Response: All cases where full weak rope was not implemented were
analyzed according to the proportional risk reduction of the number of
inserts compared to the equivalent of full weak rope (an insert every
40 feet). Please see FEIS Section 3.3.4 and 5.3.1.3 for a description
of how the use of weak rope was analyzed and the anticipated impacts on
large whales. FEIS Sections 5.3.2.3 and 5.3.4.3 discuss the expected
impacts on other protected species and protected habitat.
Comment 2.6: NMFS should consider the costs already incurred under
previous take reduction measures, and the effectiveness of those
measures, and should standardize a review of its economic analysis
based on the actual impact of previous rules.
Response: In the FEIS, we revised our analysis to provide as much
information as possible about the costs already incurred under previous
take reduction

[[Page 51978]]

measures. However, these economic impacts are not directly related to
current rulemaking, so would not be included in the final costs. Under
Section 610 of the Regulatory Flexibility Act, NMFS is required to
review any significant rule to evaluate the continued need for
regulation. Our review procedures include a summary of the expected
economic impacts contained in the final rule, as well as a summary of
any changes in technology or economic conditions that may have occurred
since. To allow for sufficient time for economic adjustments to occur
and for data to become available, we review rules every seven years.
The most recent ALWTRP rule was published in 2015, and will be coming
up for review shortly.
Comment 2.7: Did economic analysis take into account fishermen from
outside Maine, New Hampshire, Massachusetts, and Rhode Island, as there
are some fishermen from New York and Connecticut that may be affected?
Response: This rulemaking applies to lobster and Jonah crab
fisheries in the Northeast Region Trap/Pot Management Area (Northeast
Region). Please see FEIS Chapter 1 for the regulated waters map. In the
DEIS, we only included fishermen from Maine to Rhode Island. In the
FEIS, we identified a few New York fishermen that fished within the
regulated area and we revised our analysis to include the economic
impacts to those lobster and Jonah crab fishermen. No Connecticut
fishermen were identified in the regulated waters. Due to data
confidentiality requirements, those New York fishermen were combined
with Rhode Island LMA 2 vessels and LMA 3 vessels in the analysis.
Comment 2.8: This rule will drive small fishermen out, and the
fleet will become consolidated into larger corporate operations,
destroying iconic tourist-drawing fishing communities and resulting in
cultural loss.
Response: A number of the measures including trawling up and weak
insertion requirements were initially developed by Maine DMR after
extensive outreach with Maine fishermen. Fishermen indicated that the
trawling up and weak insertion measures could be done by reconfiguring
existing trawls and buoy lines, reducing impacts of wholesale
replacement of gear. Based on recommendations from the public,
fishermen and state agencies, we have modified the alternatives in the
FEIS to include conservation equivalencies in Southern New England, LMA
3, and Maine Lobster Management Zones out to 12 miles. As requested by
Rhode Island fishermen and supported by the state, we analyzed the use
of weak rope instead of trawling up measures for LMA 2. Fishermen
indicated they could not support longer trawls unless they invested in
a new vessel or vessel modifications. An analysis of risk reduction
determined that this provided equal or better risk reduction. The final
rule applies weak rope measures identical to the Massachusetts state
measures for LMA 2 and does not require further trawling up. Similar
concerns expressed by LMA 3 fishermen resulted in the implementation of
trawling up restricted areas with varying trawling up requirements.
Conservation equivalency measures provided by Maine fishermen and Maine
DMR allow fishermen to choose between different trawl lengths with one
or two buoy lines, or use more weak inserts instead of trawling up
based on fishing practices in the Maine lobster management zones.
Comment 2.9: Does the economic analysis of gear conversion take
into account the replacement savings of current gear that is nearing
the end of its lifespan?
Response: We have revised our analysis to include this in the FEIS.
Since it is difficult to estimate the life stages for all gears in the
regulated areas, we applied new gear prices for current gear
requirements in the DEIS.
When vessels modify their gear configurations by trawling-up to add
more traps between trawls, they can save some gear costs from the
reduction in surface system like buoy lines, buoys and radar
reflectors. These savings are calculated using new gear prices.
For weak rope measures, in Alternative 2 (Preferred) and the final
rule, weak rope can be inserted into current ropes, so no large-scale
replacement of buoy lines is needed. Estimated costs of inserts assume
the rope or sleeve is new. In Alternative 3, which requires fully
engineered weak rope to replace the current rope, the compliance costs
would be the difference between fully weak rope and regular rope. We
also use new gear prices for both ropes.
Comment 2.10: Fishermen should be compensated for the time it takes
to mark all the gear.
Response: Currently there is no mechanism by which NMFS is able to
compensate fishermen for gear marking costs. A program of that nature
would require Congressional appropriations. Similar programs have been
made available to fishermen in the past. Note that effective gear
marking could help fishermen and the government avoid additional
regulatory burden in the future by better identifying areas where
interactions are likely and unlikely to occur.
Comment 2.11: The costs of lost gear from new weak rope
requirements should have been considered in the evaluation of economic
effects.
Response: We discussed this issue qualitatively in FEIS Section
6.2.6.1.
Comment 2.12: The economic impacts of gear marking, including the
time already spent marking gear, should have been included in the
economic impact analysis because the rules were implemented in direct
anticipation of the Proposed Rule.
Response: Other than the gear marking costs for fishermen fishing
within Maine Exempt waters, who will be regulated by the state of
Maine, we revised the analysis to include estimates of the gear marking
costs (both material and labor costs). This revision is in response to
public comments correctly noting that Maine implemented gear marking
measures in anticipation of this final rule. However, improved
information regarding the location of large whale entanglement related
mortalities and serious injuries may allow future tailoring and reduced
economic impacts of regulations.
Comment 2.13: The evaluation of the economic effects of this rule
should have included all parts of the supply chain, such as lobster
processors, dealers, gear suppliers, trap builders, rope and line
manufacturers, and restaurateurs.
Response: We quantitatively evaluated the economic impact of the
final rule as it applies to the lobster and Jonah crab trap/pot
fisheries in the Northeast. We recognize that these changes could
impact the broader supply chain, as well as local communities and
economies in ways that are not easily quantifiable. In FEIS Section
6.7.2.2, we include a qualitative evaluation of the socioeconomic
impacts to fishing communities.
Comment 2.14: Fishermen should get economic assistance/subsidies to
cover the costs of gear changes and lost revenue.
Response: Given the vast amount of industry input into the
development of weak insertions, which would not require fishermen to
replace buoy lines, and trawling up measures, many gear modifications
implemented in the final rule were created to control costs. However,
the economic analysis in Chapter 6 indicates the first-year cost of
this rulemaking is $9.8 to $19.2 million, which is 3 percent of the
landings value of the lobster fishery in 2019. Some of those costs are
likely to be passed on to

[[Page 51979]]

the consumer but economic impacts to fishermen are anticipated.
In December 2019, $1.6 million in Federal funds were reprogrammed
to support recovery actions for the North Atlantic right whale in the
lobster/Jonah crab trap/pot fishery. The funds were made available to
fishermen through our partnership with the Commission. The funds were
obligated to the Commission and have been distributed to Maine, New
Hampshire, Massachusetts, and Rhode Island to assist the lobster/Jonah
crab trap/pot fishery in adapting to and comply with the measures in
this final rule and to help defray costs to support affected fishermen
broadly. Maine and Massachusetts have used funds to improve reporting
(Maine) and to support a gear liaison to collaborate with fishermen to
develop and test weak insertions. New Hampshire and Rhode Island plan
to use funds to purchase rope for fishermen once the rule becomes
effective. At this time additional funds have not been appropriated by
Congress or further reprogrammed to reimburse fishermen.
Comment 2.15: NMFS should reevaluate the use of Automatic
Identification Systems (AIS) to track vessel locations and movements,
and not dismiss it from consideration as an alternative based on
expense.
Response: NMFS supports the collection of high-resolution spatial
data in the lobster fishery and intends to continue to work with the
Commission, through their technical working group, to develop data
collection objectives and requirements, while balancing the financial
burden to industry. Included in ongoing discussions are specifications
needed to determine whether options less expensive than AIS systems can
be used effectively. A basic vessel tracking system costs between $500
and $1,300, while a more advanced AIS system costs between $750 and
$3,500. AIS devices also have ongoing operating costs. In relation to
the overall size and value of the lobster fishery (approximately $600
million), for example, the cost of vessel tracking technology is small
in light of the benefits it provides in the form of real-time fishery
monitoring as well as safety to prevent vessel collisions. We
anticipate continued investigation into the appropriate vessel tracking
specifications to meet the needs for lobster and right whale management
and, if appropriate, would pursue rulemaking within the next few years
to require vessel tracking for federally permitted vessels fishing for
lobster.
Many lobster vessels are smaller than 65 feet and therefore not
currently required by law to carry AIS. While the individual cost of
AIS systems are low compared to the value of the fishery, outfitting
the entire fleet with AIS would not be a cost effective approach to
monitoring, due to the trap-setting nature of the fishery. Other vessel
tracking methods are being piloted by the Commission that are more
responsive to tracking the movements of lobster boats, such as setting
and hauling back. NMFS will work with them to regulate this monitoring
approach.
Comment 2.16: In doing its economic analysis, NMFS did not consider
the ecological value of right whales, and the role they play in a
healthy environment, including their role in carbon sequestration.
Response: In Section 9.6.1 of the DEIS, we discussed the value of
large whale protection in non-consumptive use benefits and non-use
benefits. We provided the total expenditure of the whale watching
industry as a proxy for non-consumption use value, and we provided a
list of research results on the willingness to pay for whale protection
programs from society as a proxy for the non-use value. In FEIS Section
9.6, we revised our analysis to include recent studies on the
ecological and economic value of large whales.
Comment 2.17: The DEIS does not include a reference to the Meyers
and Moore 2020 paper that suggests a reduction in effort brought about
by time/area closures and removals of traps and lines from the water
may reduce costs.
Response: When we prepared the DEIS in spring 2020, this Meyers and
Moore (2020) paper had not yet been published. We have updated the FEIS
and this paper has been cited. See FEIS Section 6.5.1.
Comment 2.18: The economic and social impacts analysis fails to
consider the impact that the ongoing COVID-19 pandemic has had on
demand for the fisheries. In the first six months of 2020, U.S. exports
of lobster declined by 44.6 percent (FAO Globefish 2021) and that
significant uncertainty regarding the duration and extent of these
impacts remains.
Response: The full consequences of COVID-19 on the U.S. lobster and
Jonah crab trap/pot fisheries cannot yet be determined. In the first
half of 2020, the U.S. fishing and seafood sector experienced broad
declines due to COVID-19 protective measures instituted in March 2020
across the United States. While lobster fishing effort and demand for
lobster were low in the first half of 2020, landings increased and
prices rose as the year went on. Maine, the state that has the most
active and valuable lobster fishery, reported preliminary data that
indicated that the value of lobster landings in 2020 exceeded $400
million for only the seventh time (Maine DMR constituent email, March
24, 2021). The catch volume was reportedly 5 percent lower than 2019
landings but the vessel price was $0.44 higher per pound than the
average price over the previous ten years. While the uncertainty caused
by COVID-19 on communities that rely on lobster and other fisheries
cannot be understated, in the Gulf of Maine, where lobster stocks are
healthy, the fishery appears to be somewhat resilient.
Comment 2.19: The costs of compliance fail to account for economic
losses associated with shorter equipment durability and lifespan caused
by the proposed weak ropes, insertions, and trawling up.
Response: See the description of gear loss costs in Chapter 6,
section 6.2.6.1. Gear loss is not included in the final costs
estimation because the effect of trawling up on gear loss is unclear
and not thought to be substantial. We also currently have no evidence
that weak rope or weak inserts would cause significantly more gear
loss. In a study of weak inserts conducted by New England Aquarium for
the Massachusetts Office of Energy and Environmental Affairs, Knowlton
et al. (2018) documented sleeves designed with reduced breaking
strength breaking in only 11.8 percent of hauls relative to 8.5 percent
of control buoy lines, which they did not find statistically
significant. Some fishermen who have used the South Shore Sleeves for
several years have incurred no significant increase in extra gear loss.
NMFS will continue to test and evaluate the use of weak inserts to
ensure they are not likely to contribute to an increase in ghost gear.
See Section 5.3.1.3.2 for a description of the anticipated indirect
effects of trawl length and weak rope measures, including the
likelihood of gear loss. Also note that lobster landings dropped in
2020 due to COVID-19 but the 2020 lobster average price was the second
highest in the past decade, about $4.4/lb.
Comment 2.20: The DEIS exclusively uses the Federal dealer data to
analyze the commercial impact to the industry, not the full value of
the supply chain, and so underestimates the true cost.
Response: For our analysis of the impacts on commercial fisheries,
the dealer data provides the most accurate information. Although we
have some information of the total economic value of the supply chain
in Maine, it is difficult to estimate the impacts of the proposed rule
on it. The biggest impact

[[Page 51980]]

on the supply chain from the rulemaking would be the short-term landing
reduction. There could be some negative impacts in the near term, but
also could benefit the industry in the long run. We discussed this
issue briefly in FEIS Section 6.7.2.2.
Comment 2.20: NMFS's economic analysis fails to properly consider
that reduced effort does not equate to reduced catch.
Response: For reduced effort in restricted areas, under the
scenario where fishing is suspended, we assumed fishermen would lose
all their revenue during the closed fishing period, which was the more
conservative estimate. We recognize the costs could be overestimated in
section 6.3.1.2 ``Caveats''. Under the scenario where effort is
relocated, we assumed a 5 percent to 10 percent landing reduction in
the first year, and we also applied a decreasing rate of landing
reduction for the impacts of restricted areas.

3. Enforcement

About 14 commenters voiced concerns that this rule would be
difficult to enforce, and 11 commenters including the United States
Coast Guard, suggested that NMFS needs to develop a comprehensive
enforcement plan for the areas affected by this rule. As noted in the
FEIS, lobster trap/pot gear makes up the vast majority of buoy lines
fished in the Northeast Region, making compliance with regulations
paramount to the rule's ultimate success or failure in reducing right
whale mortalities and serious injuries.
Comment 3.1: NMFS should develop a comprehensive monitoring and
enforcement plan to ensure compliance. One commenter stated that there
is currently no enforcement in Massachusetts, New Hampshire, and LMA 3,
and another stressed the importance of including states in the
development of any enforcement plan.
Response: State partnerships serve a significant role in effective
regional enforcement activities. The Office of Law Enforcement-
Northeast Division (OLE-NED) has Joint Enforcement Agreements (JEA) in
place with ten New England and Mid-Atlantic coastal states (Maine, New
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New
Jersey, Delaware, Maryland, and Virginia). The following states perform
inspections of lobster gear in Lobster Management Areas: Maine, New
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, and New
Jersey. The following states perform inspections of black-sea-bass gear
in Lobster Management Areas: Delaware, Maryland, and Virginia. OLE-NED
has developed and implemented a pilot program using remotely operated
vehicles (ROVs) to inspect offshore fishing gear, including in LMA 3.
The pilot project will inform future offshore enforcement activities
for ALWTRP compliance monitoring efforts Additional information on this
pilot program is provided in response to Comment 3.2. OLE-NED has
identified a number of elements to review, in partnership with the
states and the United States Coast Guard, to help develop a more
comprehensive enforcement strategy for the ALWTRP regulatory
requirements. Appendix 3.5 of the FEIS provides a high-level overview
of compliance monitoring plans and associated enforcement assets.
Comment 3.2: Several commenters noted that enforcement in the
offshore areas, particularly LMA 3, is sparse, and question whether
Marine Patrol will be able to do gear inspections on longer trawls.
Response: Traditional methods of hauling gear in offshore waters
for compliance monitoring poses both safety and sustainability
challenges. To meet these challenges, OLE-NED developed and implemented
a pilot program using ROVs to inspect offshore fishing gear. OLE-NED
has conducted offshore subsurface ROV surveys to check for sinking
groundlines, gear markings, and weak links in previously uninspected
areas. Gear tags were also inspected when possible. After initial
trials, OLE has determined that ROV-based inspection of gear in the
water is a safer and more efficient way to enforce offshore lobster
gear requirements, rather than physically pulling the gear. The pilot
project was carried out in FY2020 and FY2021, and will inform future
offshore enforcement activities for ALWTRP compliance monitoring
efforts.
Comment 3.3: How will NMFS be able to enforce the different
requirements in different areas, as fishermen move from area to area?
Response: NOAA's Office of Law Enforcement partners with state
agencies and the United States Coast Guard to enforce all applicable
lobster regulations nearshore and offshore. Fishermen are required to
adhere to the regulations in the areas they fish. In Maine Lobster
Management Zones, where conservation equivalencies established by zone
and distance from shore present the greatest enforcement challenge, the
Maine Marine Patrol assured us that they use outreach, education, and
enforcement to establish and maximize compliance, are very familiar
with Maine's lobster management zones and boundaries, and that ``. . .
enforcement of most restrictive rules relative to lobster zones does
not present any significant challenge . . .'' (email from Erin Summers,
April 20, 2021). Offshore enforcement poses challenges that enforcement
partners have been evaluating in recent years. While OLE does not
disclose specific law enforcement techniques, as discussed above, OLE
has started deploying ROVs to inspect offshore gear. OLE welcomes and
encourages the public to report violations to their hotline.

4. Gear Marking

A total of 75 commenters supported gear marking, indicating that
gear marking is the best way to determine where and in which fisheries
entanglements occur, and potentially absolving other areas and
fisheries of blame. Gear marking was universally supported by
conservationists and fishermen. Several Maine fishermen commented that
they had already completed their required gear marking, and many are
expecting the results to show that Maine's lobster fishery does not
entangle whales.
Comment 4.1 NMFS should give Maine's lobster fishery a three-year
evaluation period to make sure that Maine's rope (now with purple
marks) is not causing entanglements before adding any other
requirements.
Response: The results of Pace et al. 2021 show that in the years
1990-2009, roughly eight right whales per year died, many unseen. Since
2010, on average 21 right whales per year have died. Recent
observations indicate that the increase in mortality since 2010 is in
part due to a significant amount of mortality in Canadian waters and/or
from Canadian fishing gear. However, the sources of the unseen
mortality (roughly eight whales per year) that has existed for decades
remains uncertain and the effects of the Plan's measures cannot be
evaluated (Pace et al. 2017) and likely has not reduced mortality and
serious injury below one per year as required to meet MMPA goals.
If current trends continue, even accounting for a mean of 11 births
per year over the last 10 years, we could expect to lose another 30
whales over the next 3 years, or 10 whales per year. Pace et al. (2021)
estimates that approximately 368 right whales were alive at the end of
2019. At the current rate of decline, we would expect the 2020
population to be 358. If we wait 3 more years to implement risk
reduction regulations, the population could be as low as 328. We are
required by the

[[Page 51981]]

MMPA to take action now. See FEIS Chapter 1 for more information on the
need for immediate action.
We expect gear marking and acoustic and aerial surveys to help us
further identify the areas of most risk to right whales. Until we have
additional information, we must regulate based on the best available
science: Maine has the highest concentration of all vertical line gear
in U.S. waters, and right whales are still using Maine waters.
Comment 4.2: There should be an exemption for hand-hauled lobster
traps in less than 100 feet of water, because when traps are pulled by
hand, the vertical lines are not cleared of organisms on the rope as
they would be when a pot hauler is used.
Response: It is unclear what exemption is being requested by the
commenter, as no exemption fitting this general description was
included in the final rule. The request may be for an exemption from
gear marking requirements because marks may be obscured by fouling.
While this may reduce the ability to see marks from a vessel, gear
marks would be detectable from line retrieved from a whale.
Comment 4.3: We received comments from some who support the idea of
individual ID tags that would allow NMFS to identify the fisherman
whose gear entangles a whale, as well as from others who oppose
individual ID tags.
Response: Current regulations require buoys to be marked with
information that can be traced back to individual fishermen. Buoy and
individual line tagging technologies exist, but this method of marking
comes at some cost and the benefits are unclear. Gear is not always
recovered and often buoys or traps are not present on the entangled
whale. Line marking technology, such as identification tape (i.e.,
marker tape) that is woven into line, is expensive and is difficult to
enforce without severing the buoy rope. Radio frequency identification
and passive integrated transponder tags are also expensive, require
standardized tag readers to adequately enforce, and in field trials
have not held up well in commercial fishing conditions. As the
technology improves and the costs are reduced, NMFS will continue to
monitor the possibility of line identification tape. We are not
requiring individual markings in this rulemaking.
Comment 4.4: One commenter proposed dividing Massachusetts and
Maine into smaller subdivisions with distinct markers to allow NMFS to
develop more accurate and targeted marine policy, and another suggested
weak rope should be marked or colored to identify it as weak rope.
Response: Current regulations include some small zones of multiple
colored marks but given the rarity of gear retrieval, the value of
small area marking requirements is not yet proven. Gear marking is one
of the most expensive elements within the proposed regulations and
increasing complexity adds expense without proven benefits or any risk
reduction. Regarding requiring weak rope to be identifiable with a
color or marking scheme, NMFS does not regulate rope manufacturers.
However, we are asking them to create intentionally engineered weak
rope with a tracer or a strand of a contrasting color. Weak insertion
approval has included a requirement of a contrasting color to allow
both enforcement and disentanglement teams to recognize the weak
insertion.
Comment 4.5: NMFS should not require any additional gear marking
beyond what is already in place.
Response: Currently, the majority of gear recovered has no
identifiable marks and until Maine established gear marking
requirements in Maine exempted waters, over half of all U.S. buoy lines
were unmarked. In order for the ALWTRT to make better recommendations,
including those that could allow more targeted gear modifications and
closures, the Team needs a better understanding of the types and
locations of rope that entangle whales. The more robust gear marking
scheme included in the final rule, including some markings largely
supported by the ALWTRT and states, should increase our ability to
identify the gear, and subsequently, identify more targeted and more
effective measures to reduce entanglements.
Comment 4.6: Gear marking should be required for all fisheries in
the right whale migratory path.
Response: The ALWTRP covers commercial fisheries within the right
whale migratory path from Florida to Maine. While, historically, the
majority of gear recovered from right whale entanglements has been
unknown, state regulations and the final rule expand the gear marking
schemes substantially for the lobster/Jonah crab fishery, which
contributes the vast majority of vertical lines in these waters. The
new gear marking requirements should increase the frequency with which
we encounter gear marks on recovered rope from entanglements and enable
visual identification of state of origin from aerial and vessel-based
platforms. The ALWTRT has begun meeting to develop recommendations
related to reducing the risks posed by other U.S. fisheries in right
whales range. In recent years, Canada has also implemented gear marking
requirements for Canadian lobster and snow crab fisheries.
Comment 4.7: NMFS should require gear markings every 17 fathoms, so
that gear markings will be at the same intervals regardless of the
total length of the rope.
Response: The large number of different fisheries operating at
various depths managed under the ALWTRP makes it difficult to implement
a single gear marking structure. For those fisheries occurring in deep
offshore waters, this rule more than doubles current gear marking
requirements but may not result in marks as frequent as every 17
fathoms (31 m). However given the large number of buoy lines in
shallower waters, one marking every 17 fathoms (31 m) would be a
reduction in gear marking compared to what we have in the final rule.
Comment 4.8: Several commenters suggested that sinking groundlines
should be marked to distinguish them from vertical lines, while others
supported not requiring any gear marking on sinking groundlines.
Response: Groundline marking has not been extensively discussed by
the ALWTRT in recent years. Under current ALWTRP and in this final
rule, no gear marking will be required for sinking ground lines.
Comment 4.9: Why are the gear marks required to be 3 feet long
(0.91 m), and would that be useful in murky water?
Response: Gear marking and fishery identification relies mainly on
recovering gear from entangled whales, making the water clarity a
negligible component of gear identification. However, the proposed
larger 3-foot (0.91 m) mark within 2 fathoms (3.65 m) of the surface
system should help identify gear from vessel and aerial platforms, as
the surface system will keep the line in relatively clear water. The
mark could also provide useful information for disentanglement teams,
and may allow gear identification in cases where whales are
photographed, but not seen again.
Comment 4.10: Any final rule should include requirements for all
buoy lines to be marked the full length of the vertical line, or at the
very least, markings every 40 feet, and in such a way that the location
of where gear was set can be known even in cases when a buoy is not
seen or retrieved.
Response: The final rule increases the number of marks with
additional distinction between Federal and state waters, offering
better spatial resolution than those in the Proposed Rule. The marks
will also be longer in length to increase the likelihood that a mark
will be spotted without a buoy. However, it

[[Page 51982]]

was determined that marking every 40 feet would be costly without a
commensurate benefit given that since 2010 gear has only been retrieved
from about 40 percent of the observed right whale entanglements.
Comment 4.11: Time consuming gear marking regulations should be
implemented during the off season, as otherwise gear making will reduce
the time available for fishing.
Response: We recognize this issue, and this rule will include a
delayed implementation date to allow time during slow seasons as
practicable for gear configuration and gear marking changes.
Comment 4.12: Can we alert whales to the presence of ropes with
visual or acoustic cues?
Response: Research conducted by Kraus, Fasick, Werner and McFarron
(2014), and Kraus and Hagbloom (2016), suggested that red and orange
lines may be visually detectable by North Atlantic right whales at
greater distances than other colors although it is unclear to what
depths color can be detected or whether detection results in avoidance.
For more information on gear marking measures included in this rule,
please see Table 3.3. Unlike toothed whales that use echolocation to
sense their surroundings, baleen whales like right whales are not
detecting fishing gear acoustically and acoustic cues are unlikely to
result in gear avoidance in the same way that pingers have been
successful at reducing entanglements of harbor porpoises, for example.

5. Legal Issues

Approximately 28 commenters believe that the Proposed Rule violated
the requirements of the MMPA, the ESA, the National Environmental
Policy Act (NEPA), and/or the Administrative Procedure Act (APA). Most
of these concerns were raised by NGOs, including but not limited to:
Whale and Dolphin Conservation, Oceana, Center for Biological
Diversity, Conservation Law Foundation, Defenders of Wildlife, Humane
Society of the United States, Natural Resources Defense Council, PEER,
Clearwater Marine Aquarium, Georgia Aquarium, Southern Environmental
Law Center, as well as the Maine Lobstering Union, and many Federal and
state legislators.
Comment 5.1: NMFS refusal to evaluate some strategies, including
but not limited to certain trap reductions, weak line enhancements,
static area closures, and gear marking strategies, was ``arbitrary and
capricious'' under the APA.
Response: The development of the Proposed Rule was the result of an
extensive public process involving challenging negotiations within the
ALWTRT and ample opportunity for public input as prescribed by the
MMPA, NEPA, and the APA.
Many options were considered, deliberated, and evaluated by the
ALWTRT, the public, and NMFS, and some were modified or eliminated from
further consideration as the process unfolded. Where the measures
considered in the final rule would also affect state fisheries, the
input of state fisheries agencies was important to ensure that
conservation measures were feasible and safe in the various locations
in which they would apply. State scoping and outreach helped inform the
rulemaking efforts, and helped identify the measures that would be
given extensive consideration in the NEPA process.
The final rule and FEIS reflect this extensive involvement by the
numerous stakeholders and considered a reasonable range of
alternatives.
Comment 5.2: Proposed rule and DEIS violated Executive Order (E.O.)
12898 by not reviewing issues of environmental justice, particularly
for Maine's Washington County.
Response: E.O. 12898 requires agencies to consider whether their
actions result in disproportionately adverse human health and
environmental impacts on minority or low income populations. The DEIS
addressed E.O. 12898 by examining the various counties affected by the
ALWTRP rulemaking, and concluding that minority and low impact
communities will not be disproportionately affected.
While Washington County has higher than state average low income
and minority populations, Washington County is not disproportionately
affected by adverse health and environmental impacts from the
rulemaking when compared to other counties. Where the impacts of the
ALWTRP rulemaking extend over a large area across multiple states, the
county level is an appropriate level at which to assess whether the
rulemaking would result in disproportionate impacts.
The commenter's concerns appear to be economic in nature, as
opposed to adverse human health and environmental impacts, which are
the focus of E.O. 12898. See FEIS Section 10.12 for a complete analysis
of this rule as it pertains to E.O. 12898.
Comment 5.3: NMFS' authorization of lobster and Jonah crab trap/pot
fisheries violates the ESA by allowing entanglements.
Response: NMFS has satisfied its obligations under the ESA by
reinitiating consultation on the operation of Federal fisheries under
eight Federal fishery management plans and two interstate fishery
management plans, which was completed on May 27, 2021, and consulting
on the amendment of the ALWTRP itself, which was completed on May 25,
2021.
The ALWTRP does not authorize fisheries. NMFS disagrees with the
commenter's claims that the ALWTRP ``allows'' entanglements. The ALWTRP
does not state that entanglements are allowed, nor does it prevent
fishermen from taking actions to avoid or prevent entanglements beyond
what is required by this rule.
Comment 5.4: Allocating the full PBR to the trap/pot fishery
violates the MMPA.
Response: MMPA Section 118 directs NMFS to develop take reduction
plans to reduce the incidental mortality and serious injury of marine
mammals incidentally taken by commercial fishing operations to levels
less than a stock's PBR level. Section 118 does not address other
sources of human-caused mortality (e.g., vessel strikes) and those
other causes are not considered in the goals of the take reduction
plan. The short-term goal of a take reduction plan is to reduce
incidental mortality and serious injury of each marine mammal stock to
below the stock's PBR in the commercial fisheries addressed by the
plan, with a longer term goal of reducing incidental mortality and
serious injury to 10 percent of a stock's PBR taking into account
economics, available technology, and existing fishery management plans.
NMFS has already reconvened the ALWTRT to develop recommendations for
gillnet and other trap/pot fisheries.
Additionally, the FEIS analyzes other sources of impacts on right
whales. Although beyond the scope of this rule, NMFS has identified
evaluation of current measures to protect right whales from vessel
strikes, as well as research into factors affecting health and
abundance, collaboration with Canada on range-wide recovery efforts,
and consideration of emerging threats as 2021 to 2025 priority actions
in the right whale 5-year Species in the Spotlight action plan.
Comment 5.5: The Proposed Rule violates the MMPA by considering
economics as a factor when choosing the preferred alternative.
Response: The commenter argues that NMFS is prohibited from
considering the economic impacts of measures to be implemented in a
Take Reduction Plan unless such measures are part of the

[[Page 51983]]

MMPA's long-term goal of reducing mortality and serious injury to
insignificant levels approaching a zero mortality and injury rate
(often referred to as ZMRG). However, the distinction drawn by the
commenter does not accurately reflect the statute. Under the MMPA, to
reach the long-term goal requires the TRP to take into account the
economics of the fishery, the availability of existing technology, and
existing state or regional fishery management plans. The portion of the
MMPA discussing the short-term goal of reducing mortality and serious
injury to below a stock's PBR does not use this language. However, that
does not mean that economics, technological limitations, and state or
regional fishery management plans cannot be part of the consideration
as to which measures should be chosen to achieve the short-term goal.
Here, NMFS developed a 60-80 percent risk reduction target based on the
latest PBR calculations and estimates of mortality and serious injury,
and the ALWTRT developed recommendations based on this target. In
choosing between measures that will accomplish the goal of reducing
mortality and serious injury below PBR, the MMPA does not prohibit the
consideration of economics, and here the agency's choice of measures to
include in the final rule balances various factors, but does not do so
at the expense of the risk reduction target to reach the short-term
goal.
Comment 5.6: The Proposed Rule violates MMPA by not meeting ZMRG
within 5 years.
Response: Under section 118 of the MMPA, NMFS is required to meet
both the short and long-term take reduction plan goals of reducing
mortality and serious injury incidental to commercial fishing
operations. The short-term goal is to reduce mortality and serious
injury to below a stock's PBR, while the long-term goal is to reduce
mortality and serious injury to insignificant levels approaching a zero
mortality and serious injury rate (i.e., ZMRG, defined as 10 percent of
PBR in 50 CFR 229.2), taking into account the economics of the fishery,
availability of existing technology, and existing state or regional
fishery management plans.
Due to the continued entanglements of large whales in commercial
fishing gear, NMFS is required to take additional action to further
reduce mortality and serious injury incidental to commercial fisheries
covered by the ALWTRP. NMFS will continue to discuss future plan
modifications with the ALWTRT and has already reconvened the Team in
light of these goals.
Comment 5.7: The Proposed Rule violates MMPA by not reducing PBR in
six months.
Response: The MMPA created a framework for developing and issuing
take reduction plans, monitoring the plans regularly, meeting with take
reduction teams regularly, and amending plans if necessary to meet the
goals of the MMPA. NMFS' actions have been consistent with the process
laid out by the MMPA.
The first ALWTRP was issued in 1997, and NMFS has modified the
ALWTRP numerous times since, with input from the ALWTRT to further the
MMPA goals of reducing mortality and serious injury of large whales
incidental to commercial fisheries.
As we state in the preamble to the final rule, for the purposes of
creating a risk reduction target, NMFS assigned half of the right whale
entanglement incidents of unknown origin to U.S. fisheries. Under this
assumption, a 60 percent reduction in mortality or serious injury would
be needed to reduce right whale mortality and serious injury in U.S.
commercial fisheries, from an observed annual average of 2.2 to a PBR
of less than one whale per year. See Chapter 2 of the FEIS for our
revised analysis of PBR.
Comment 5.8: These additions to the ALWTRP may not prevent the
continued decline of right whales.
Response: NMFS tasked the ALWTRT with developing measures to reduce
risk of entanglement to meet the MMPA's goals that fisheries mortality
and serious injury should be below PBR. It is not within the agency's
discretion to disregard PBR, and the current rulemaking is the agency's
attempt to reduce the risk of mortality and serious injury from the
Northeast lobster and Jonah crab trap/pot fisheries to comply with the
MMPA. That such measures in and of themselves may not result in
recovery of the right whale population does not mean that NMFS can
disregard the statutory direction of the MMPA.
Comment 5.9: State measures should be included in the final rule.
Response: NMFS agrees that the MMPA authority applies in both state
and Federal waters. Many state measures are included in the final rule,
including Massachusetts weak insertion requirements and extension of
the MRA north to the New Hampshire border. Because dynamic management
is difficult to accomplish under Federal procedural requirements and
such measures were not part of the proposed rule, the Massachusetts
extension of the state water closure into May was not included. Other
Massachusetts measures, such as a maximum state water line diameter,
were not included because they were not analyzed or part of the
proposed rule.
Comment 5.10: NMFS ``Purpose and Need'' statement is too narrow.
Response: The Purpose and Need chapter of the FEIS states that the
measures need to achieve a risk reduction of at least 60 percent,
rather than an exact risk reduction target, and therefore, it was not
meant to constrain the risk reduction to a specific number. Rather,
this is the minimum target needed. Both of the action alternatives
considered in the DEIS met the Purpose and Need. The Alternatives have
been modified in the FEIS.
The Alternatives were selected because, using the Decision Support
Tool, these suites of measures, which include ongoing and anticipated
fishery management measures, measures that will be regulated by Maine
and Massachusetts, and the benefits of the MRA, are estimated to
achieve or exceed a 60 percent risk reduction necessary to reduce
impacts to right whales to below the PBR level of 0.8 mortalities or
serious injuries per year based on observed incidents. Thus, mortality
and serious injury of right whales in U.S. fishing gear must be reduced
by 60 percent (documented) to 80 percent (estimated) to achieve the
MMPA goal of reducing fishery-related incidental mortality and serious
injury to below the right whale PBR.
For more information on the Decision Support Tool and the input
data, assumptions, and uncertainty please see FEIS Appendix 3.1.
In terms of the ESA, the final rule has been identified as a first
anticipated step in the adaptive management approach within the
conservation framework in the Section 7 Consultation on the
authorization and permitting of a number of Federal fisheries,
including lobster and Jonah crab. Additionally, a consultation on the
ALWTRP which included the implementation of final rule determined that
the gear regulations implemented by the Plan for U.S. fixed gear
fisheries including those measures in the final rule will have wholly
beneficial effects to ESA-listed species or their critical habitat and
therefore the Plan is not likely to adversely affect ESA-listed species
or designated critical habitat.
Comment 5.11: NMFS cannot rely on CEQ's recent amendments to NEPA.
Response: Because the Notice of Intent to prepare an Environmental
Impact Statement (84 FR 37822, August 2, 2019) was published prior to
September 14, 2020, this action was prepared under the NEPA regulations
first implemented in 1978. Text has

[[Page 51984]]

been added to the Purpose and Need section (FEIS Section 2.2) to
reflect this. As written, the FEIS addresses direct and indirect
impacts in Chapter 5 (Biological Impacts), Chapter 6 (Economic and
Social Impacts), and Chapter 7 (Summary of Biological, Economic, and
Social Impacts). Cumulative Effects are addressed in Chapter 8, which
also summarizes the direct and indirect impacts of the action as well.
Comment 5.12: NMFS failure to consider a ``no commercial fishing''
alternative is in violation of NEPA.
Response: Not allowing any commercial fishing is not a reasonable
alternative under NMFS' regulatory responsibilities, namely the
Magnuson-Stevens Act, and does not meet the Purpose and Need of the
action nor the goals of the Plan. Per the agency's mission, NMFS is
responsible for the stewardship of the nation's ocean resources and
their habitat. We provide vital services for the nation: Productive and
sustainable fisheries, safe sources of seafood, the recovery and
conservation of protected species, and healthy ecosystems--all backed
by sound science and an ecosystem-based approach to management.
Comment 5.13: NMFS did not evaluate a reasonable range of
alternatives or all reasonable measures in violation of NEPA.
Response: The development of the Proposed Rule was the result of an
extensive public process involving the ALWTRT as prescribed by the
MMPA, NEPA, and the APA. Many alternatives were considered,
deliberated, and evaluated by NMFS, the ALWTRT stakeholders, and the
public, but some were eliminated from further consideration as the
process unfolded. For example, while the non-preferred alternative
considered a reduction and cap on buoy lines, achieving that reduction
specifically through a large reduction in the number of traps allocated
to fishermen or through a reduction in the number of permits issued was
not analyzed despite studies that suggest that trap reductions may not
substantially or over the long term reduce lobster landings and would
reduce operational costs to fishermen (e.g., Myers and Moore 2020;
Myers et al., 2007). These measures were not included in large part due
to failed efforts to establish effort reduction measures with the
primary fishery management body responsible for lobster fishery
management, the Commission, demonstrating the complexity of developing
these measures in a fishery with varied state reporting requirements.
There was also strong opposition from the regulated community, most
notably when Maine DMR attempted to develop this option through Maine
Zone Council meetings. Strong industry opposition to measures that
would require consideration of fishing histories and landings data
would further extend the rule development and implementation timeline
and compromise compliance.
Additionally, trap reduction would not in itself necessarily reduce
buoy line numbers. Increasing the minimum number of traps per trawl
would still be required in conjunction with trap reductions, otherwise
fishermen could use trawls with fewer traps resulting in no decrease in
vertical buoy lines. While some commenters raised concerns about
additional weight associated with more traps per trawl and stronger
buoy lines, weak insertions required in all buoy lines regulated under
this rule would provide for breakable buoy lines. This example
demonstrates the complex interrelationship of many of the measures
analyzed and adopted or rejected, although given the large volume of
comments not all measures provided in scoping and comments on the
proposed rule were analyzed.
Where the measures considered here would also affect state
fisheries, the input of state fisheries agencies was important to
ensure that conservation measures were feasible and safe in the various
locations in which they would apply. As such, state scoping and
outreach helped inform the rulemaking, and measures given extensive
consideration in the NEPA process. The FEIS reflects this extensive
involvement by the numerous stakeholders and contains a reasonable
range of alternatives for the agency and the public's consideration.
The Alternatives were selected because, using the Decision Support
Tool, they achieve or exceed a 60 percent risk reduction necessary to
reduce impacts to right whales to below the PBR level of 0.8 serious
injury or mortality per year.
Comment 5.14: NMFS rejected trap reductions in violation of NEPA.
Response: While agencies shall include reasonable alternatives not
within the jurisdiction of the lead agency, these trap reduction
strategies were not considered reasonable under the Purpose and Need
due to multiple factors. They are complex, time-intensive, and carry a
large administrative burden. For example, implementing a line or trap
cap would require pinpointing accurate data sources, identifying
qualifying criteria, outlining an allocation method, and engaging the
industry, on top of managing current measures. Given the need for rapid
rulemaking and conservation measures, these trap reduction strategies
are not currently cost effective, nor could they be implemented in a
timely manner. For more information on trap reduction strategies
undertaken by the Commission, see also response to Comment 5.14, above,
and comment 6.4, below.
Comment 5.15: DEIS did not analyze all risks in concluding the rule
will reduce mortality and serious injury below PBR in violation of NEPA
and APA.
Response: In accordance with NEPA, as part of its cumulative
impacts analysis, the DEIS described impacts to right whales and other
large whales from various anthropogenic sources, including vessel
strikes, aquaculture, and offshore energy development. However,
attribution of sources of mortality in the PBR framework is not a legal
requirement of NEPA, but of the MMPA. Section 118 of the MMPA directs
that NMFS develop take reduction plans to reduce the mortality and
serious injury of marine mammals incidental to commercial fishing
operations to levels less than PBR for the marine mammal stock. While
the DEIS did address other sources of impacts on right whales, the MMPA
does not mandate that take reduction plans must reduce incidental
mortality and serious injury from fisheries to levels that would
accommodate mortality and serious injury from other anthropogenic
sources within PBR. In other words, NMFS does not apportion PBR; PBR is
a reference point that serves as the short-term goal for a take
reduction plans and also alerts NMFS to take management actions needed
to reduce all sources of human-caused mortality so that we can meet the
overarching MMPA goal of recovering marine mammals to their optimum
sustainable populations.
Comment 5.16: NMFS did not consider dynamic area management as
required under NEPA and APA.
Response: The commenter is correct that in the past the take
reduction plan included dynamic closure measures. Such measures were
found to be problematic with the fixed gear lobster fishery, and so
were not considered in this final rule. When a closure is made gear
cannot be removed instantaneously, and factors such as weather and sea
conditions affect the timing of gear removal. Dynamic closures must
allow for safety concerns, which make them less effective from a
conservation perspective, as such delays can result in gear remaining
after whales

[[Page 51985]]

are sighted, and may also result in a situation where, by the time
fishermen are able to remove their gear, the whales may have already
left the area subject to the closure. Further, while Canada began using
dynamic closures in 2018 as part of its right whale conservation
effort, in 2019 there were twelve Canadian right whale mortalities
despite these measures. See Comment 9.2 under Restricted Areas and
Borggaard et al. (2017) for further discussion of dynamic management.
Comment 5.17: Proposed rule violates MMPA and ESA because
regulations are not effective and immediate.
Response: The MMPA take reduction rulemaking process is subject to
procedural requirements arising from the APA, MMPA, NEPA, and ESA that
make ``immediate'' protections in the form of a Take Reduction Plan
amendment a legally difficult proposition. While there are
circumstances in which MMPA emergency rulemaking authority may be
exercised, as described in more detail in response to comment 7.5, NMFS
has not concluded that this would be appropriate here, and even if this
authority were used it would not allow for ``immediate'' protections,
as there are other non-MMPA procedural steps that must occur. NMFS has
undertaken the current rulemaking process using the best available
scientific information while engaging with various stakeholders in the
take reduction team process to develop effective conservation measures
to reduce entanglements of right whales in Northeast lobster and Jonah
crab trap/pot fisheries.
Comment 5.18: NMFS did not use the best scientific information
available in violation of NEPA, MMPA, and ESA.
Response: The rulemaking process unfortunately cannot react
instantaneously as new information comes to light. The MMPA take
reduction planning process requires the involvement of numerous
stakeholders in the TRT in the development of conservation measures,
followed by the required NEPA and APA processes. At all points,
however, NMFS uses the best available scientific information to inform
its decisions, and when the TRT was reconvened, NMFS developed a 60-80
percent risk reduction target based on the latest PBR calculations and
estimates of mortality and serious injury.
As NMFS prepared to publish the DEIS and Proposed Rule, new
information regarding North Atlantic right whale population came in the
form of preliminary estimates from the NMFS Northeast Fisheries Science
Center in the fall of 2020. These estimates have since undergone
additional review, and are being incorporated into the North Atlantic
right whale stock assessment that includes a new PBR calculation, a
process that includes public notice and comment. This new information
is included in the FEIS.
Comment 5.19: The proposed regulation is not only unconstitutional,
but a direct attack on the citizens and sovereignty of the state of
Maine. You should refrain from implementing this regulation.
Response: NMFS is acting in accordance with direction from Congress
under the MMPA and other applicable laws. See FEIS Chapter 10.

6. Line/Effort Reduction

At least 34 commenters were in favor of effort reduction through
trap limits, line caps, and buybacks, as a way to reduce the number of
vertical lines in the water, thus reducing risk to right whales, while
a few were against any effort reduction measures. Maine DMR noted that
the administrative burden of a line cap system is also something that
has deterred them from pursuing this management measure. Several
commenters pointed out that, due to latent effort, NMFS' assumptions on
effort may be artificially high, though Maine's DMR stated that the
latent effort calculations were consistent with their view. Some
commenters suggested that fewer fishermen are entering the fishery,
leading to a natural reduction in effort, and therefore line reduction
was already taking place, which would contribute to the risk reduction
goals of the final rule.
Comment 6.1: NMFS should review the amount of latent effort in the
fishery, and ensure that latent effort is properly accounted for in
determining the risk reduction value of any measures.
Response: Since the collapse of the Southern New England (SNE)
lobster stock, the Commission has taken action to attempt to address
latency in LMA 2 and 3. The Commission's Lobster Management Board
initiated Addendum XVIII to scale the SNE fishery to the diminished
size of the SNE lobster resource with a consolidation program aimed at
addressing latent effort (unfished allocation) and reductions in traps
fished. Addendum XVIII included an approximate 50 percent trap
reduction in LMA 2 implemented over 6 years and an approximate 25
percent trap reduction in LMA 3 implemented over 5 years. These trap
reductions concluded in fishing years 2020 and 2021.
Given that the Gulf of Maine/Georges Bank (GOM/GB) lobster stock
(overlapping with LMA 1, 3, and the Outer Cape) is at a near time
series high for abundance, we can assume that the amount of latency is
comparatively lower than that found in SNE. As discussed in Chapter 5
of the FEIS, positive market and lobster stock conditions for the GOM/
GB stock incentivize fishermen to increase fishing effort and may
encourage inactive fishermen to reenter the fishery. For that reason,
it is likely that fishermen in the Gulf of Maine have been fishing at a
high capacity in recent years. Maine, which accounts for the majority
of permits issued in the Gulf of Maine, submitted data on latency rates
of state permits (Appendix 3.2 of the DEIS), indicating a stable number
of latent permits over the last 10 years (2008-2018). Of its
approximately 6,000 permits issued, approximately 1,500 permits have no
reported purchased landings and are considered latent. While other
jurisdictions have not completed similar analyses, latency rates are
likely similar.
Given the actions to reduce latency in LMA 2 and 3, the relatively
low but stable amount of latency in LMA 1, and the current fishery
incentives given high abundance in the Gulf of Maine, fishery data
included in the Decision Support Tool are considered accurate and
representative of existing fishery conditions, including existing rates
of latency. See FEIS Chapter 5 for more details.
Comment 6.2: A range of views were expressed on the Non-preferred
Alternative of capping buoy lines. One comment stated that NMFS should
choose its Non-preferred Alternative of capping buoy lines at 50
percent of the average monthly lines fished in Federal waters in 2017.
Another expressed opposition to it, citing that Massachusetts is the
only state where end lines are accurately counted or regulated, and it
would be time and labor-intensive to develop such a system across the
other states without funding or capacity to do so.
Response: Regulating buoy lines was analyzed in the DEIS and the
FEIS as an element within the Non-preferred Alternative 3, taking an
alternate approach to achieving risk reduction across the proposed
areas that would reduce line numbers while allowing fishermen to
respond to the reduction according to their preferences and individual
operational capacity. Alternative 3 would cap the total number of lines
available for trap/pot fishing in Federal waters to 50 percent of the
average baseline number of lines (2017) outside of state waters.
Because this was not a Preferred Alternative, the exact regulatory
mechanism for

[[Page 51986]]

implementing a line cap was not identified. It was assumed, however,
that NMFS would work with the Commission and New England states to
qualify the number of buoy lines based on an April 29, 2019, control
date (84 FR 43785, August 22, 2019) using vessel trip reports or, for
Maine, other data sources to distribute allocations of line tags to
fishermen.
NMFS did not select this Non-preferred Alternative because
development of a buoy line control program would be time- and labor-
intensive and come at a substantial cost to the industry. The
Commission process, including soliciting public feedback, requires, at
a minimum, approximately six months to develop an adaptive management
action. Larger, more controversial actions can take 8 to 18 months. One
commenter is likely correct that, given the lack of mandatory vessel
trip reports in the Federal lobster fishery in the baseline year of
2017, the Commission would have had to rely on state data as the best
scientific information available to develop a qualification program
through an addendum.
Given the variable data regarding individual fishermen's lobster
fishing histories due to inconsistent state and Federal reporting
requirements, this would be a large and controversial action. Even once
approved by the Commission, additional time would be required for NMFS
to undertake a Federal rulemaking and associated analysis. The FEIS
estimates that a 50 percent reduction of buoy lines in Federal waters
would alone achieve an average 45 percent risk reduction in Federal
waters with economic impacts ranging from $3.9 to 13.4 million. The
combined set of measures included in the preferred alternative was
projected to achieve a 69 percent risk reduction at a cost of $9.8 to
$19.2 million in the first year of implementation. Given implementation
challenges, the economic impacts of this preferred alternative and the
fact that the preferred alternative achieves the stated risk reduction
target, buoy line reductions will not be implemented in the final rule.
Comment 6.3: States should cap and reduce the number of licenses,
and reduce risk to right whales.
Response: Through the Commission's Interstate Fishery Management
Plan for American Lobster, states and NMFS have made substantial
efforts at capping the number of permits and traps authorized in the
lobster fishery, which serves as a primary effort control. The concept
of controlling lobster fishing effort by limiting access to historical
participants began in 1994 when NMFS generally limited access into the
Federal lobster fishery to those who could document participation in
the fishery before 1991 (59 FR 31938, June 21, 1994). Years later, in
August 1999, the Commission passed Addendum 1 to Amendment 3 to the
Interstate Plan, which limited access to Lobster Conservation
Management Areas 3, 4, and 5 to only those who could document fishing
history in those areas. Subsequent Commission addenda similarly attempt
to control effort by limiting access to other Areas:
---------------------------------------------------------------------------

\2\ All Addenda can be found at <a href="http://www.asmfc.org">www.asmfc.org</a>, under Interstate
Fisheries Management, American Lobster.
\3\ New England Fishery Management Council document. This action
occurred prior to the 1999 transfer of Federal lobster management to
the Commission under the Atlantic Coastal Act.

Table 4--Actions Under Interstate Fishery Management Plan for American
Lobster
------------------------------------------------------------------------
Lobster conservation management Commission action Corresponding
area \2\ Federal action
------------------------------------------------------------------------
EEZ............................. March 1994-- June 21, 1994 (59
Amendment 5 \3\. FR 31938)
LMA 1........................... November 2009-- June 12, 2012 (77
Addendum XV. FR 32420)
LMA 2........................... December 2003-- ..................
Addendum IV \4\. April 7, 2014 (79
February 2005-- FR 19015)
Addendum VI. May 10, 2005 (70
November 2005-- FR 24495)
Addendum VII.
LMA 3........................... August 1999-- March 2003 (68 FR
Addendum 1. 14902)
LMA 4........................... August 1999-- March 2003 (68 FR
Addendum 1. 14902)
LMA 5........................... August 1999-- March 2003 (68 FR
Addendum 1. 14902)
LMA 6........................... 1995--by State Not Applicable in
action. Federal Waters
Outer Cape Cod.................. February 2002-- April 7, 2014 (79
Addendum III. FR 19015)
May 2008--Addendum
XIII.
All Areas....................... February 2009-- April 7, 2014 (79
Addendum XII. FR 19015)
------------------------------------------------------------------------

The Commission has used a similar step-by-step approach in all of
the areas. First, participants are qualified based upon their ability
to document a history of fishing within the area. Second, those who
qualify are allocated some number of traps within a given management
area, based upon their ability to document the level of past fishing
effort in the area.\5\ These addenda have largely required that states
implement similar limited access programs (with the exception of LMA 1,
where recommendations were for the Federal fishery only).
---------------------------------------------------------------------------

\4\ Addendum IV was rescinded in Addendum VI and then revised
and approved in Addenda VII and XII.
\5\ Through various addenda to the ISFMP for American lobster,
history-based effort control plans based on fishery performance have
been enacted by NMFS (LCMAs 1, 3, 4, and 5) and states (MA in Outer
Cape Cod; NY and CT for LCMA 6; and MA, RI, CT, & NY for LCMA 2).
---------------------------------------------------------------------------

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

[[Page 51987]]

XXII. NMFS is in rulemaking to consider the implementation of these
measures. This FEIS anticipates this future rulemaking and has given
credit to the risk reductions associated with Addenda XVIII, XXI, and
XXII.
Comment 6.4: NMFS should remove half the traps from the water,
which would reduce the risk to right whales while still allowing
fishermen to make a living.
Response: Since 1994 under the Commission's Interstate Fishery
Management Plan for American Lobster, states and NMFS have made
substantial efforts at capping the number of permits and traps
authorized in the lobster fishery. Participation caps serve as a
primary effort control. Reducing trap caps by half could result in less
effort and, when paired with traps/trawl requirements, could reduce the
number of lines being fished, with an associated reduction in risk to
large whales. A number of fisheries and managers that have participated
in the public meetings of the Commission and the Take Reduction Team
have expressed confidence that, on productive fishing grounds, lobster
trap reductions could occur without negative economic consequences. A
number of studies have demonstrated this, see for examples Myers and
Moore (2020), Myers et al. (2007), and Acheson (2013).
However, for a reduction in the number of actively fished buoy
lines to be fairly distributed based on vessel fishing histories or
other commonly used metrics, detailed knowledge of the amount of
fishing effort by sector or individual vessel is required. Allocation
decisions in effort control management of a capped resource (lines or
traps) are also usually informed by iterative public fishery management
processes and include appeal options that are administratively
burdensome. Because the lobster fishery has variable reporting
requirements across states, and because only about 10 percent of Maine
fishermen have been required to report in any year and Federal
reporting has been variable, data to easily determine effective trap
and line cap measures is not available. This was demonstrated by the
failed attempt of the Commission to identify an effort limit addendum,
as described in FEIS Section 3.1.1.2.

7. Management

We received thousands of comments on management issues, ranging
from the use of adaptive management strategies to including
southeastern states in future rulemaking to evaluating the
effectiveness of the final rule. Thousands of commenters, primarily
through campaigns organized by NGOs, but also at least 149 unique
commenters, advocated NMFS taking emergency action to institute
immediate vertical line reductions or closed areas, and of them, many
suggested shutting down all fishing activities that involve vertical
lines. Several also recommended shutting down all commercial fishing.
We also received thousands of comments, again primarily through
campaigns organized by NGOs, but also from 83 unique commenters, about
our risk reduction calculations being based on outdated population
estimates.
Comment 7.1: NMFS should use adaptive management to assess and
recalibrate the measures every few years to reach goals of reduced
entanglements in fishing gear.
Response: During the ESA Section 7 consultation on the operation of
eight fisheries managed under Federal fishery management plans and two
fisheries managed under interstate fisheries management plans, NMFS
identified the need for additional measures to meet the mandates of the
ESA, and developed a Conservation Framework to outline the agency's
commitment to implement measures necessary for the recovery of right
whales. In addition to the current rulemaking that seeks to reduce risk
of mortality and serious injury by 60 percent, the Conservation
Framework provides for additional rulemakings to further reduce risk
over the next decade at levels expected to lead to survival and
recovery of the species. Central to the Conservation Framework is an
adaptive management approach by which new information relating to the
status of right whales and the impacts of fisheries and non-fisheries
activities will be used to determine the extent of additional
management measures needed.
Comment 7.2: NMFS should establish another process through which
stakeholders can propose measures that could achieve equal or greater
protections for right whales. The ALWTRP process is time-consuming, and
does not allow for flexibility and adaptability.
Response: The MMPA requires NMFS to convene Take Reduction Teams
and develop Take Reduction Plans. While this process can be time
consuming, it provides a framework for developing mitigation measures
and clear goals for the ALWTRP. The ALWTRT has the discretion to
recommend mitigation measures that are flexible and adaptable in
meeting the MMPA goals.
Comment 7.3: NMFS should include southeastern states in any future
rulemakings, since right whales spend time in the southeast.
Response: To simplify and expedite rulemaking, NMFS chose to direct
the ALWTRT efforts initially on the Northeast Region lobster and Jonah
crab trap/pot fisheries because these fisheries constitute 93 percent
of the U.S. buoy lines in areas where right whales occur. The Team
includes southeastern state fishery managers as well as members that
represent the South Atlantic Fishery Management Council and Southeast
U.S. fishermen. NMFS has begun working with the ALWTRT to get their
recommendations on further rulemaking that may include modifications to
the southeastern fisheries that are subject to the ALWTRP. We will
include outreach to stakeholders in these states in our future
rulemaking efforts.
Comment 7.4: NMFS should enlist fishermen in disentanglement
efforts, rather than relying on college students and other groups.
Response: Disentanglement efforts on large whales are conducted
under a NMFS permit by highly skilled and trained responders throughout
the United States. These responders come from a variety of backgrounds,
including fishermen, and NMFS regularly conducts training that
specifically targets fishermen and other members of the on-water
community. Disentanglement techniques, tools, and protocols have been
developed over decades and have been used as a model for successful
rescues and international disentanglement efforts. National and
international trainees come from all over the world to learn from and
train with our teams in the United States. We do ask for assistance
from untrained fishermen from time to time on specific cases, and will
continue to do so to provide an effective disentanglement effort that
is safe for both the disentanglement team and the whales.
Comment 7.5: NMFS should take emergency action to close all
fisheries that use vertical lines or other gear that may entangle right
whales, or to close all areas where whales may co-occur with fishing.
Response: There are several statutes that lay out the situations in
which NMFS can take emergency action. In Section 118(g) of the MMPA,
which many commenters mentioned, the Secretary of Commerce may
implement emergency rules when incidental take from commercial
fisheries are having ``an immediate and significant adverse impact on a
stock or species.'' Where there is already a take reduction plan in
place, the Secretary should develop such emergency rules that are
consistent with the plan to the maximum extent practicable, and follow
``on an

[[Page 51988]]

expedited basis'' with amendments to the plan as recommended by the TRT
to address the situation. In developing emergency rules, the Secretary
must consult with the Marine Mammal Commission, TRT, fishery management
councils, and state fishery managers. Emergency rules can only stay in
place for 180 days, but can be extended for additional 90 days if an
emergency situation persists.
Section 4(b)(7) of the ESA also includes emergency rulemaking
authority provisions. NMFS has used this authority in the past to
implement emergency rules for right whale protections (e.g., SERO 2006
gillnet closure, 71 FR 66469, Nov. 15, 2006). This authority is
available when there is an ``emergency posing a significant risk to the
well-being of any species of fish or wildlife or plants.'' In an ESA
emergency rulemaking, the Secretary must provide detailed reasons why
the regulation is necessary, and must provide actual notice to state
agencies in states where species occur. An ESA emergency rule can only
last 240 days.
While ESA emergency rulemaking provisions explicitly waive the
procedural rulemaking requirements of the APA and the ESA, likewise,
the MMPA's emergency rulemaking authority provides an alternative to
the normal rulemaking process of the MMPA, which would ordinarily
include the APA's notice and comment requirements. These MMPA emergency
provisions do not, however, waive other procedural requirements that
agencies are subject to when undertaking a rulemaking, including NEPA,
the Paperwork Reduction Act (PRA), or E.O. 12866. The NEPA regulations
at 40 CFR 1506.12, for example, allow agencies to consult with the
Council on Environmental Quality to develop ``alternative provisions''
in addressing an emergency situation, but agencies are expected to
``limit such arrangements to actions necessary to control the immediate
impacts of the emergency.'' E.O. 12866 provides that in an emergency
situation, ``the agency shall notify the Office of Information and
Regulatory Affairs (OIRA) as soon as possible and, to the extent
practicable, comply with subsections (a)(3)(B) and (C) of this
section.'' The PRA includes emergency review provisions, subject to
approval by the Office of Management and Budget (OMB) with a finding
that the normal process will result in public harm or is not possible
because of an unanticipated event, and even then the agency must take
all practicable steps to consult with members of the public. To the
extent that an emergency action would impact a wide range of the
fishing community, the need to satisfy these procedural requirements
would limit the speed of such actions.
Due to the above-referenced requirements for emergency action under
the MMPA and ESA, including public notice and comment requirements
NEPA, PRA, or E.O. 12866, and the limitations on how long an emergency
rule can stay in effect (270 for MMPA, 240 days for ESA), NMFS believes
that proceeding with the current action will provide the fastest relief
and longest-lasting protections for right whales. NMFS generally views
emergency actions to be appropriate where a clearly identifiable
problem can be addressed with directed, focused measures, and such
measures will effectively address the emergency in the timeframes to
which such authorities are limited. Because it is difficult to predict
where entanglements will occur given the relative scarcity of
identified locations of entanglement, an emergency action to completely
close all fisheries using vertical lines at this time would appear to
be an overbroad use of its emergency authority. NMFS has not identified
a geographic location or discrete temporal period within which
emergency action would address a specific entanglement concern, and
therefore NMFS believes that the complex issues associated with right
whale fishery interactions are better addressed through the
comprehensive approach in the final rule.
Comment 7.6: NMFS should take emergency action to immediately
implement a year-round closure south of Martha's Vineyard and
Nantucket.
Response: As noted in the response to Comment 7.5, we believe that
the final rule will provide the fastest relief and longest-lasting
protections for right whales, so we are not planning to take emergency
action at this time. The final rule does include a seasonal closure
south of Martha's Vineyard and Nantucket that will be in effect from
February to April, when right whales have been sighted most frequently
in high numbers in this area.
We have selected the larger of the closed areas analyzed as a
restricted area in Alternative 3 (Non-preferred) in the DEIS, but is in
the Preferred Alternative in the FEIS and is being implemented in the
final rule. This larger restricted area was best supported by the most
recent sightings data. Since 2018, right whales have been documented to
the west of the originally proposed closure, such that the closure
could relocate lines into areas of equally high whale density during
the restricted season. The Preferred Alternative in the FEIS and final
rule area encompasses the majority of the area where the highest
density of right whales have been sighted, and the most recent
sightings in years not yet within the Decision Support Tool demonstrate
these aggregations have persisted. Restricting buoy lines within this
area between February and April provides an estimated 4.6 percent risk
reduction for the entire Northeast and captures much of the risk within
that area. See FEIS Section 3.1.2.5 for our revised analysis.
Comment 7.7: NMFS should take emergency action to immediately
implement seasonal closures in the three areas in the Gulf of Maine:
Downeast summer closure from August 1-October 31, a western Gulf of
Maine spring closure from May 1 to July 31, and an offshore migration
closure from October 1 to April 30.
Response: As noted above, we believe that the final rule will
provide the fastest relief and longest-lasting protections for right
whales, so we are not planning to take emergency action at this time.
NMFS analyzed the closure areas in the three Gulf of Maine areas
proposed in an emergency rulemaking petition submitted by The Pew
Charitable Trusts. Along with the year-round closure proposed in
Southern New England, these four areas would achieve an estimated 12.6
percent risk reduction according to Decision Support Tool Version 3,
using the updated right whale habitat density model (2010-2018).
However, the team working on the current rule would have to divert to
preparing a new emergency rule and the required NEPA analyses. As noted
above, emergency measures may only be implemented within the limited
timeframe provided by the statutory authority, and the approximate 67
percent risk reduction from the current rule far exceeds the estimated
risk reduction suggested by the commenters. The final rule is a
priority in order to implement broad risk reduction in a timely manner.
See FEIS Section 3.4 for a further discussion of this and other
alternatives that were considered but rejected.
Comment 7.8: NMFS should issue emergency regulations that remove
vertical buoy lines from the water in areas of high entanglement risk
to North Atlantic right whales.
Response: As noted above, NMFS would typically use its emergency
authority in situations where a clearly defined problem can be
addressed using discrete measures in a defined geographical area to
effectively provide conservation protections within the limited
timeframe provided by the statutory authority. Because the location of
entanglements are so rarely observed,

[[Page 51989]]

it is difficult to pinpoint times and places where emergency measures
might provide effective protections from entanglements. NMFS has not
currently identified new areas where emergency regulations would be
appropriate, but the final rule includes comprehensive measures that
address entanglements on a broad scale, including measures that will
reduce vertical buoy lines through trawling up and seasonal area
closures. See FEIS Chapter 3.
Comment 7.9: How will the regulations in this final rule be
evaluated?
Response: NMFS anticipates annual meetings of the Team to review
the North Atlantic right whale and other large whale distribution and
abundance data, mortality and serious injury data, retrieved
entanglement gear analyses, fishing effort data, and other relevant
research results. As they become available, these new data will also
inform the evolving Decision Support Tool. Modifications to seasonal
restricted areas will be considered annually by the Team, and they may
make recommendations to amend the Plan, as needed. Following the
recommendations of the NMFS Expert Working Group asked to review right
whale surveillance and monitoring programs (Oleson et al. 2020), we
anticipate a three-year surveillance and review cycle, providing
additional opportunities to evaluate right whale distribution data to
gauge seasonal restricted areas and other conservation measures
contained in the ALWTRP.
Comment 7.10: NMFS should evaluate the success of past regulations,
like sinking groundlines and breakaways, before adding more
regulations.
Response: Under Section 610 of the Regulatory Flexibility Act, NMFS
is required to review any significant rule to evaluate the continued
need for regulation. To allow for sufficient time for economic
adjustments to occur and for data to become available, we review rules
every 7 years. The most recent ALWTRP rule was published in 2015, and
will be coming up for review shortly.
Comment 7.11: Several commenters suggested that NMFS ban commercial
fishing, ban certain commercial fishing gears, or focus on reducing the
demand for seafood.
Response: MSA is the primary law that governs marine fisheries
management in U.S. Federal waters. First passed in 1976, the MSA
fosters the long-term biological and economic sustainability of marine
fisheries. Its objectives include preventing overfishing, rebuilding
overfished stocks, increasing long-term economic and social benefits
and ensuring a safe and sustainable supply of seafood. The Atlantic
Coastal Fisheries Cooperative Management Act, governing the U.S.
lobster and Jonah crab trap/pot fisheries, directs the Federal
government to support the management efforts of the Commission and, to
the extent the Federal government seeks to regulate a Commission
species, develop regulations that are compatible with the Commission's
Interstate Fishery Management Plan and consistent with the MSA's
National Standards. Regulations to seasonally close areas to fishing or
to fishing with certain gear types have been implemented to comply with
the MMPA, the ESA, and even the Magnuson-Stevens Act. However, a
complete ban on commercial fishing or closure of an entire fishing
sector when other options exist that allow fishing to occur while
complying with the Acts would be inconsistent with our mandates under
these laws.
Comment 7.12: NMFS should require all vessels in fixed-gear
fisheries to use Vessel Monitoring Systems and/or AIS, submit Vessel
Trip Reports, and have observer coverage in order to get better
information on distribution and density of vertical lines.
Response: NMFS supports the collection of high resolution spatial
data in the lobster fishery. The Commission recommended the collection
of mandatory harvester reports in the Federal fishery, as part of
Addendum XXVI to Amendment 3 to the Interstate Fishery Management Plan
for American Lobster. NMFS is in rulemaking to develop harvester
reporting requirements that complement the Commission's Interstate Plan
for lobster. NMFS intends to work with the Commission, through a
technical working group, to develop additional high resolution spatial
data collection objectives and requirements, while balancing the
financial burden to industry.
Comment 7.13: If the lobster/Jonah crab trap/pot fishery had been
managed like the Northeast Multispecies fishery, there would be fewer
offshore fishing permits, and we wouldn't be having this problem.
Response: The interaction risk of a protected species is largely
associated with the gear type, but also the quantity of gear in the
water, gear soak/tow duration, and the temporal and spatial overlap of
the gear and a given protected species. For the critically endangered
North Atlantic right whale, fixed gear fisheries with lines linking
gear on the ocean floor to surface marking systems (buoys, etc.) pose
the greatest risk as they have accounted for the majority of
identifiable past fishery interactions. The DEIS indicated that the
2017 IEC model estimated that over 93 percent of fixed gear buoy lines
within right whale habitats along the Northeast U.S. Atlantic coast are
fished by the lobster and Jonah crab fishery. Thus, the lobster and
Jonah crab fishery poses the greatest risk to right whales and has been
the focus of this action. For comparison, the Northeast multispecies
fishery authorizes the use of fixed gear (e.g., gillnets), however, it
is a relatively small component of the fishery and one of several
fisheries comprising the other 7 percent of fixed gear fisheries with
buoy lines.
The MSA, governing the Northeast Multispecies Fishery Management
Plan, and the Atlantic Coastal Act (ACA), governing the Interstate
Fishery Management Plan for American Lobster, are the primary laws
governing marine fisheries management in U.S. Federal waters. First
passed in 1976, the MSA fosters the long-term biological and economic
sustainability of marine fisheries. Its objectives include preventing
overfishing, rebuilding overfished stocks, increasing long-term
economic and social benefits, and ensuring a safe and sustainable
supply of seafood. The ACA directs the Federal government to support
the management efforts of the Commission and, to the extent the Federal
government seeks to regulate a Commission species, develop regulations
that are compatible with the Commission's Interstate Fishery Management
Plan and consistent with the MSA. These laws allow for the updating of
management measures to meet legislative and management objectives.
While adjustments to management measures may affect the quantity of
gear fished, soak time or tow duration, or the spatial or temporal
usage of gear, and, thus, may alter the interaction risk associated
with any fishery to protected species, they are unlikely to
dramatically alter the gear usage in these fisheries.
Comment 7.14: These rules will create safety hazards for fishermen,
and will not reduce right whale entanglements or mortalities.
Response: We acknowledge that open ocean fishing is inherently
dangerous, and that fishing is one of the most dangerous occupations.
Fishermen configure their operations in the ways that work best for
them, and any regulatory changes that require them to modify their
practices can increase risk until adaptations to the new practices are
made. Although some commenters have criticized the deference that NMFS
gave to the states and offshore fishery

[[Page 51990]]

members in developing the Proposed Rule analyzed in the DEIS, the
extensive outreach to fishermen informed the development of measures
included in the final rule. Fishermen informed measures with important
information such as number of traps that can fit safely on deck at one
time, amount of force on rope hauled under commercial fishing
practices, rope size that fits safely through blocks and haulers on
commercial vessels, sizes of vessels and crews fishing at various
distances from shore, local fishing conditions, and conservation
equivalencies.
Alternative 2 (Preferred) of the FEIS and the final rule consider
those public comments, including many of the conservation equivalencies
requested, and accommodate those changes along with measures from the
Proposed Rule that benefitted from earlier scoping. Together, these
measures should prevent this rulemaking from introducing hazards beyond
those that already exist in the lobster and Jonah crab fisheries.
Comment 7.15: NMFS should also evaluate the effects of these
regulations on all the other large whale species in the region.
Response: Chapter 5 of the FEIS evaluates the effects of the final
rule on large whales, other protected species, and habitat.
Comment 7.16: Thousands of commenters were concerned that cryptic
mortality and uncertainty in the data was not taken into account when
choosing the risk reduction target, and recommended an 80 percent risk
reduction target or higher, with a few suggesting 100 percent.
Response: The application of cryptic mortality estimates in
determining annual entanglement mortality and serious injury rates
relative to the PBR level was a new concept when first introduced to
the ALWTRT in 2019. Peer review of the cryptic mortality estimate had
not yet been completed and although it was discussed in the 2018 Marine
Mammal Stock Assessment Report (Hayes et al. 2019) that was available
to the Team for the April 2019 meeting, cryptic mortality was not
incorporated into the entanglement related mortality and serious injury
estimates in that report. The 60 percent target based on documented
mortality was in itself seen as a difficult challenge for the Team
given uncertainties about the location of origin of most documented
entanglement events. The 80 percent target was an initial attempt to
account for early estimates of cryptic mortality, but was even more
daunting and the Team recognized the uncertainty in that higher target
given the many unknowns related to the unseen mortalities, including
cause and location of deaths. Therefore, while the Team accepted the
challenges of a 60 percent mortality and serious injury risk reduction,
they were unable to agree on the higher target. The recent paper by
Pace et al. 2021 on cryptic mortality and the more recent analysis in
the current population estimate (Pace 2021) now provide more support
for the 80 percent target than at the time the ALWTRT undertook its
efforts to develop recommendations. Our understanding of cryptic
mortality will affect management decisions going forward as new stock
assessments and PBR calculations incorporate this new science.
Here, NMFS considered this new information, as well as the
remaining uncertainty around apportioning mortalities to country and
source, conservation equivalency recommendations from states and
stakeholders, and the need for urgency in completing the current
rulemaking constraining us to the scope of the analyses in the DEIS.
Resulting modifications to the final rule included selection of a
larger area closure south of the islands and modifications to
management measures that improved risk reduction estimates to achieve a
nearly 70 percent risk reduction as determined by the Decision Support
Tool. Further efforts by NMFS to estimate serious injury and mortality
and to apportion the estimates to country and mortality source will be
included in guidance to the ALWTRT to support their development of
recommendations for further amendments to the ALWTRP.
Comment 7.17: NMFS should focus risk reduction efforts on areas of
high right whale occurrence.
Response: Chapter 3 in the FEIS describes how the alternatives were
developed and explains that while precautionary measures are required
throughout the regulated areas, more restrictive and protective
measures are focused on areas of high right whale co-occurrence with
buoy lines (e.g., the hotspot analysis that identified restricted
areas). Particularly, the months and areas with highest whale
occurrence and co-occurrence are the areas that were selected for
seasonal restricted areas. However, as described in Chapters 2, 3, and
8 of the FEIS, there is also a great need to implement measures that
will be resilient to changes in whale distribution and therefore
requires broader precautionary risk reduction across the regulated
area.
Comment 7.18: Pending fishery management measures should not be
counted in analyzing risk reduction.
Response: Noted in the ALWTRT recommendations and throughout the
development of this rule, other relevant actions that we considered to
be reasonably certain to occur within the timeframe evaluated within
this rule were treated as such in our analysis of anticipated risk
reduction throughout the regulated area. We commit to monitoring the
progress of these related actions and reporting our findings to the
ALWTRT at future meetings for consideration.
Comment 7.19: Massachusetts did not ban single traps on vessels
longer than 29 feet in their rule, so how was that risk reduction re-
allocated?
Response: During the development of the Proposed Rule, NMFS
discussed this measure with the Massachusetts Department of Marine
Fisheries and recognized that it was likely to be positive toward risk
reduction. However, we were unable to estimate the impacts on risk.
Since we did not assign any quantified risk reduction to that measure
in the DEIS, there was no need to re-allocate it.
Comment 7.20: NMFS should adopt Maine's proposed conservation
equivalencies.
Response: As discussed in FEIS Section 3.3, NMFS is adopting most
of the conservation equivalencies offered by Maine out to 12 nm, and is
appreciative of the work done by Maine Department of Marine Resources
and the Zone Councils to develop and recommend weak insertion and
trawling up requirements in collaboration with Zone Councils that are
familiar with capacity and constraints of Zone-specific fishing
operations and conditions.
Comment 7.21: Maine should get gear reduction credit if Maine funds
tags or development of a GPS tracker.
Response: Technology and tracking in and of themselves do not
reduce the risk of fishing gear on large whales. However, if Maine
develops a line reduction program and reporting/tracking technology
that demonstrates line reduction, it would be considered toward risk
reduction.
Comment 7.22: In LMA 3, NMFS should analyze the difference in risk
reduction between a 50 percent reduction in buoy lines and the proposed
closure with potential gear displacement.
Response: Several scenarios were analyzed in Georges Basin
Restricted Area for the DEIS and FEIS, including a 50 percent reduction
in lines through a line cap or through trawling up and a

[[Page 51991]]

restricted area. The FEIS includes longer trawl lengths in this area
compared to the DEIS (50 traps per trawl versus 45 traps per trawl) but
still implements broader trawling up measures throughout LMA 3 in order
to distribute risk reduction more evenly. The Georges Basin Restricted
Area was predicted to increase co-occurrence in the DEIS (See co-
occurrence maps in Chapter 5 and Appendix 5.2).
Comment 7.23: How is the Massachusetts Restricted Area credit being
added to the risk reduction estimates?
Response: FEIS Section 3.3.5.1 discusses credit assigned to the
Massachusetts Restricted Area and provides an assessment of risk
reduction with and without application of the value of that area. The
Team unanimously supported including credit for the Massachusetts
Restricted Area, which was fully implemented in its current
configuration in 2015 (79 FR 36585), given recent years' increased use
of that area by right whales (e.g., Ganley et al. 2019).
Comment 7.24: Were all the proposals evaluated using the same
model?
Response: Each individual risk reduction measure and suite of
measures were run through the Decision Support Tool (DST) Version 3 to
identify the estimated contribution to risk reduction across the
Northeast Region as defined by the Northeast Trap/Pot Management Area.
Comment 7.25: The Woods Hole Oceanographic Institute has developed
a methodology in collaboration with the fishing industry to attribute
risk to gear based on proportion of water column occupied. This
information must be considered in this rulemaking.
Response: We anticipate adding this information to the DST in the
near future. However, this is less important for the current rulemaking
because an endline, assuming it approximates a straight line from the
bottom to the surface, occupies all portions of the water column
equally and the lobster industry has incorporated sinking groundline so
groundlines may be assumed to have negligible presence in the water
column. Incorporating proportions of the water column occupied are more
critical for complex structures like gillnets or potential aquaculture
installations, in which case it is important to model not only the
proportion of water column occupied but also which portion of the water
column is occupied and the vertical distribution of whales. This will
be incorporated into the DST for future analysis of risk posed by
different gear types that do not use the entire water column.
Comment 7.26: Some commenters questioned the validity of the threat
component of the DST.
Response: The threat model based on the TRT opinion poll is no
longer in use. Starting with the CIE review in 2019, the threat model
has been based only on the analysis of empirical data on rope breaking
strengths, rope samples retrieved from entangled whales, and whale
spatial distributions. At this time, the model is unfortunately
constrained to rope breaking strength but in two years of polling
scientists and stakeholders, nobody has proposed a viable alternative.
It is appropriate for the threat model to be equally weighted with line
and whale density because entanglement risk only exists when lines are
present, whales are present, and the lines pose a risk to whales. If
any of these three factors are not present, the risk of entanglement is
zero.
Comment 7.27: The DST is critically flawed in its reliance on an
estimate of gear threat that significantly overemphasizes the
contribution of rope strength to entanglement risk. By failing to
account for the uncertainty inherent in the DST, NMFS overestimated the
effectiveness of the selected methods for reducing risks to right
whales.
Response: There are uncertainties in the DST calculations that we
have not fully quantified. However, it is important to distinguish
between uncertainty and bias and we have no reason to believe that the
inputs and therefore model outputs are particularly biased high or low.
Thus, while there is unquantified uncertainty around the risk reduction
calculated by the DST, it is equally likely that actual risk reduction
is higher than estimated as lower than estimated and no reason to
believe that risk reductions are overestimated.
Comment 7.28: NMFS should implement these regulations as soon as
possible as any delays come at the expense of right whales.
Response: NMFS recognizes the urgency of the current situation and
intends to implement these regulations to provide needed conservation
benefits to right whales as soon as possible. We intend to implement
new seasonal restricted areas 30 days after the rule is finalized.
Massachusetts Restricted Area fishermen have indicated that it takes
several trips for them to remove all of their gear, and because of
unpredictable winter weather and holidays, they remove and move
beginning at least a month in advance of their February 1 closure. The
LMA 1 closure will likely result in moved trawls rather than trawls
brought to the beach and stored on land so may not require round-trips
to the dock. Many fishermen moving gear from the South Island
Restricted Area would be expected to remove gear prior to the February
1 closure; one month should provide sufficient time to remove gear.
Gear configuration changes including trawling up, weak buoy lines or
weak insertion installation, and gear marking, will be delayed for a
longer period of time because these buoy and groundline modifications
will take substantial time. The delayed effective date will factor in
winter or low effort months when many fishermen have removed gear from
the water for maintenance. The actual effective dates will depend on
when the Notice of Availability of the FEIS and the final rule are
released. Our intention is that all measures will be in place for the
next fishing year starting in the spring of 2022.
Comment 7.29: Some components of the rule state prohibitions ``to
fish with, set, or possess'' where other portions leave out ``set.'' If
this was strategic, please clarify how ``setting'' is separate from the
regulatory intent of ``to fish with.
Response: This was carryover language from the existing
regulations. The word ``set'' is included within seasonal restricted
areas; seasons when gear must be removed unless fishing without buoy
lines. During the season that the gear can be fished with gear
configuration requirements referenced in the regulations, the word
``set'' is not included.
Comment 7.30: It is our understanding that any trap, pot,
contrivance etc. that is capable of catching a lobster is required to
have a valid lobster trap tag affixed to it. This would indicate that
any trap which falls into this category is subject to the marking, weak
insert, and trawling up requirements of this rule. We would ask for
clarification on this assumption from NOAA, which should help to guide
discussions in the next ALWTRT process which will be aimed at the
additional gear types of gill nets and fish pots.
Response: Any trap/pot within the Northeast Trap/Pot Management
Region with a lobster trap tag will be required to comply with the
marking, weak insert, weak line, and trawl length requirements.
Comment 7.31: While some of these proposals may end up being
effective, this proposal makes very clear that there is insufficient
mortality and tracking data on right whales, and many of the suggested
changes will be considerably

[[Page 51992]]

more detrimental to the fishing industry than beneficial to the whales.
Response: The Decision Support Tool estimates at least a 60 percent
reduction in entanglement risk, which is spread across the region to
remain resilient to changes in right whale distribution. The population
and distribution are frequently monitored via aerial/vessel surveys as
well as with acoustic detection, and will be evaluated to ensure the
measures are targeting areas where entanglement risk exists. See more
about monitoring in response to Comment 9.10.
Comment 7.32: The proposed rule does not consider reduction in
effort, particularly for recreational fisheries. PEER urges NOAA to
consider the effect of reducing or eliminating recreational fisheries
in right whale habitat.
Response: The ALWTRP only regulates Category I and II commercial
fixed gear fisheries identified in the Plan. Additional regulation of
recreational fisheries is outside the scope of the current rulemaking.

8. Research

Comments on research generally fell into one of three categories:
Whale distribution, insufficiency of current data, and entanglements.
Many of the fishermen commenting said they had either never seen a
right whale where they fish, never seen or heard of an entangled right
whale in areas where they fish, did not believe that there was any
recent evidence of entanglement in their trap/pot lines, and questioned
the validity of the scientific models on whale distribution.
Comment 8.1: NMFS has not shown that entanglement in lobster trap/
pot gear contributes to low birth rates.
Response: There is a wealth of research that demonstrates that
stressors, including entanglements in fishing gear like traps/pots,
have effects on marine mammal health and reproduction. Entanglements in
fishing line, such as those used in the lobster trap/pot fishery, is
energetically costly for right whales and requires expenditure of a
portion of their energy budget that would otherwise be allocated to
reproduction (van der Hoop et al. 2017a). Entanglements can reduce
overall whale health and increase calving intervals (Rolland et al.
2016, Moore et al. 2021). Entanglements that restrict feeding further
impact energetic reserves and ability to feed (van der Hoop et al.
2017b). An inability to get enough food is also an important factor in
the reproductive health of right whales (Meyer-Gutbrod et al. 2015).
See FEIS Chapters 5 and 8.
Comment 8.2: Healthy whales don't get entangled in fishing gear;
there is something else wrong with them.
Response: Several commenters stated the belief that healthy whales
do not get entangled in fishing gear. Entanglement in fishing gear is a
global problem that has been documented for many whale and dolphin
species. In the Northeast Region, humpback and minke whale
entanglements are not uncommon. More than 85 percent of North Atlantic
right whales have experienced entanglement in fishing gear, many more
than once. A recent assessment of all right whale photos reveals that
entanglement scarring injuries have increased, with roughly more than
30 percent of the population having at least minor entanglements each
year. Much of the population has been entangled multiple times, and
there is a more than 90 percent chance that a healthy female will get
entangled between each calving cycle potentially contributing to
reduced calving rates. Repeated and chronic entanglement affects whale
health and some whales with unrelated compromised health status may be
more vulnerable to injury and death. However, there is no evidence that
healthy whales are more adept at avoiding entanglement.
Comment 8.3: NMFS should hire mechanical engineers to examine the
rope and net configurations that are causing entanglements to occur.
Response: NMFS conducts extensive analysis of recovered gear from
entangled whales using our gear team, which includes former and active
fishermen. We also regularly consult with active fishermen who have
decades of experience and are well versed in various fishing methods
and local practices. The various configurations we have seen over
decades of recorded entanglements varies widely, but the basic fact is
that rope or net in the water column has the potential to entangle
large whales. NMFS also funds bycatch reduction research, and considers
research by right whale scientists that include modeling of
entanglement configurations. NMFS does not believe that hiring
mechanical engineers is necessary.
Comment 8.4: NMFS should develop a plan to monitor all whale
entanglements, including observer coverage and satellite monitoring.
Response: NMFS, state, and independent research organizations
coordinate monitoring whale entanglements. Monitoring of entangled
whales is done through comprehensive survey effort to resight
individuals and check for entangling gear or scarring. Satellite
position beacons are sometimes attached to gear entangling a whale to
facilitate finding the whale for a disentanglement effort. Because
whale entanglement incidents are rare relative to fishing effort hours
and whales typically carry gear away from incident sites before a
vessel returns to the gear, an observer program is not an effective
means for large whale entanglement monitoring.
Comment 8.5: How can NMFS justify a seasonal restricted area if
there have been no confirmed entanglements in that area in over a
decade? No North Atlantic right whales have been entangled in gear
attributable to Maine trap/pot gear in at least 15 years, because the
whales no longer are in Maine waters.
Response: No gear remains on most right whales that bear
entanglement scars. In the cases where gear does remain, it is rarely
collected, and even more rarely has any identifying marks. Between 1980
and 2016, the New England Aquarium analyzed 1,462 right whale
entanglement interactions (A. Knowlton pers comm). Only 110 of these
incidents had gear still attached, and in only 13 cases could that gear
be traced to the original set location. Because we lack information on
exactly where interactions occur, we use areas of high co-occurrence of
right whales and fishing gear as a proxy for identifying areas of high
entanglement potential. The Decision Support Tool also considers the
type of gear in determining the risk of a serious entanglement that
would cause mortality or serious injury. The seasonal restricted areas
identified in the final rule are based on hot spots, areas with high
current and historic habitat use by North Atlantic right whales, high
fishing gear density and high configuration threat. The population and
distribution are monitored via aerial/vessel surveys as well as with
acoustic detection, and will be evaluated to ensure the restricted
areas are effective. See more about evaluation below in response to
Comment 9.10.
Until September 2020, when Maine required gear marking in exempted
waters, most Maine lobster fishery buoy lines were unmarked. Therefore,
if a buoy line fished by a vessel operating under a Maine permit
entangled a right whale, the odds of tracing that rope to a Maine
lobster fishery buoy line have been extremely low. The commenters are
correct that no rope retrieved from a right whale has been specifically
traced to gear set by Maine trap/pot fishermen since the 2000s.
However, cases in 2011 and 2012 were identified as U.S. unknown trap/
pot gear with red ALWTRP marks, consistent with the

[[Page 51993]]

marking scheme for Maine fishermen outside of exempted waters during
those years. Additionally, a number of anchored minke whales and
humpback whales have been identified in Maine gear in the past 15
years. Maine lobster buoy lines entangle and kill whales.
As noted by the commenters, right whale distribution has changed in
the past decade, and there may be fewer or less dense aggregations of
whales in the Gulf of Maine. Right whales continue to occur in Maine
waters; however, and given the endangered status of the population, the
high rate of entanglements evidenced by scars on right whales, and the
continued mortality and serious injuries above PBR, NMFS must provide
protective measures throughout the population's range in U.S. waters.
Comment 8.6: One commenter indicated that the data shows that
gillnet and netting gear were the most prevalent gear (other than
Canadian snow crab gear) and the Northeast lobster fishery were the
least prevalent in right whale entanglements.
Response: As detailed in Chapter 2, while gillnet gear may be
identified at rates higher than anticipated given the relative number
of buoy lines, there are more cases identified as trap/pot found on
right whales than identified gillnet gear and the most prevalent gear
seen on right whales is described as unknown rope.
Comment 8.7: The Decision Support Tool relies on coarse data for
both line density and whale density, and should not be used. There is
no way to model where the whales are and where the gear is with any
degree of certainty.
Response: The Decision Support Tool (DST) was and continues to be
the best available analytical tool to assess the co-occurring risk of
large whale entanglement in commercial fixed gear. The model compiles
the best available large whale habitat density modeling by Roberts et
al. (2016) which incorporates data from nearly every systematic marine
mammal survey of the eastern United States. The DST also draws from
every available state and Federal fisheries data source to incorporate
the best available estimate of the distribution of fixed gear fisheries
vertical lines within the Exclusive Economic Zone. We agree that there
are uncertainties associated with this model, and any model, but we are
confident in the DST's ability to inform the Team's discussion and
recommendations toward a risk reduction goal.
Comment 8.8: NMFS right whale population model overestimates the
cumulative mortalities.
Response: The estimates of total mortality are derived from a peer-
reviewed methodology designed to estimate the abundance of North
Atlantic right whales. The model itself is a version of methodology
used for many species of wildlife in which particular statistical
characterizations are used to characterize the capture and/or
resighting (both alive and dead) histories of individually marked
whales to estimate survival rates. These models take into account that
individuals are not seen every year, and this particular model allows
individuals to have different probability of being ``captured'' on each
capture occasion.
It is true that these models cannot distinguish between true
mortality and the appearance of mortality that would come from an
individual permanently leaving the survey areas. For that to happen in
great abundance would suggest that many whales use the United States
and Canadian coasts for enough time to become catalogued and then
decide to move elsewhere and never return. There is simply no evidence
for that scenario. Indeed, there is abundant evidence that the great
mobility and long life of right whales allows them to take modest
sojourns to Icelandic and even Norwegian waters and return to the
survey areas to be ``recaptured'' once again.
Very few wildlife populations even approach having all mortality
documented by detected carcasses. Despite the vast survey effort
directed at right whales, given the large amount of area that right
whales travel, right whales and other large whales likely die without
their carcasses ever being seen.
Comment 8.9: NMFS should use a longer time series to make any
determinations, as well as acoustic and prey data.
Response: The FEIS is a compilation of the best available
scientific information including information on documented and
projected changes in prey distribution. Acoustic data are increasingly
used to identify right whale distribution and are included in the near
real-time sightings posted on our website at <a href="http://fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings">fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings</a>, and passive acoustic
monitoring research is available at <a href="http://apps-nefsc.fisheries.noaa.gov/pacm/#/narw">apps-nefsc.fisheries.noaa.gov/pacm/#/narw</a>. For a complete list of citations, see the list of references
included at the end of every FEIS chapter.
Recent population models demonstrate that the right whale
population decline began in 2010 and accelerated around 2015 (Pace et
al. 2021). We cannot wait another decade to respond to that decline.
Comment 8.10: Thousands of commenters who submitted comments as
part of a campaign noted that the Proposed Rule relied on outdated
population estimates to calculate PBR, and requested that the
calculations be updated and a new PBR determined.
Response: The calculations in the DEIS showing how NMFS proposed to
achieve that risk reduction relied on the 2018 Stock Assessment report
available when the DEIS was drafted, using 2016 population estimates.
The FEIS has been updated with the most recent population estimate
(Pace et al. 2021) and stock assessment data (Hayes et al. 2020),
including the PBR of 0.8, down from 0.9 in the DEIS. For more, see FEIS
Section 2.1.1.
Comment 8.11: NMFS should use peer-reviewed science before
implementing any regulations.
Response: NMFS concurs. The FEIS is a compilation of the best
available scientific information. Included in the FEIS are data from
the Stock Assessment Reports, which are peer reviewed by the Atlantic
Scientific Review Group and subject to review by the public, and
results from the Decision Support Tool, which underwent an independent
peer review conducted by the Center for Independent Experts.
Comment 8.12: The data used to determine whale distribution is
flawed and incomplete, and therefore should not be used to make
regulations.
Response: NMFS disagrees with this assessment. The whale
distribution data is the best available information. Although more data
will help increase the accuracy of analysis results, there is no
indication that results to date are incorrect, nor is there evidence
that either the data or the analytical approaches taken to date are
flawed. The data have been collected with strict adherence to
established protocols, and analyses have used accepted peer-reviewed
statistical methods.
Comment 8.13: What are the migratory patterns of right whales in
LMA 2?
Response: An interactive map of right whale sightings data,
including sightings in LMA 2, can be found online at
<a href="http://fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings">fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings</a>.
Comment 8.14: NMFS should do more to gather data on right whale
distribution, including increasing aerial, boat-based, and drone
surveys.
Response: We agree that more data are needed to refine our
understanding of right whale distribution. With available resources,
NMFS is maintaining aerial surveys, increasing acoustic surveys and
investigating additional tools to

[[Page 51994]]

document whale distribution and individual identification. NMFS is
working to identify the primary factors that correlate with right whale
distribution to help identify other areas where right whales are likely
to occur to direct future survey efforts.
Comment 8.15: NMFS should develop ways to tag and track right
whales.
Response: NMFS agrees that tagging would help us learn more about
right whale movements and habitat use. Long-term attachments used in
past studies require an invasive approach to implant tag anchors. These
efforts were halted on right whales out of concerns regarding potential
health impacts. NMFS has supported development of less invasive tags to
track (greater than 24 hours) right whales since 2014. First, we began
supporting an investigation into using dart-style Low Impact Minimally
Percutaneous Electronic Transmitters (LIMPETs) on right whales.
Although a few of the tags successfully tracked right whale movements
through the mid-Atlantic, most tag attachments were relatively brief.
Fortunately, there was no evidence of negative health impacts in any of
the whales that were tagged. We also began, and continue to support,
the development of blubber-only tags. These are slightly more invasive
than the LIMPET tags. The fieldwork component of this study was
interrupted by the global pandemic. Still, tag enhancements continue to
be supported including investigations into tag materials, tag retention
methods, etc. It should be noted that despite several decades of
development, many of the technical and logistical challenges of tagging
continue to limit the utility of this approach. It is therefore
important for NMFS to continue and enhance existing monitoring programs
to provide whale location information for a large portion of the
population.
Comment 8.16: NMFS should use spotter planes to make fishermen
aware of when whales are in their area.
Response: NMFS uses multiple means to track right whales, including
aerial surveys and acoustic monitoring systems. Near real-time sighting
information can be found on our website at <a href="http://fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings">fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings</a>.
Comment 8.17: Warming in the Gulf of Maine is causing changes in
copepod distribution, driving whales to Canada, and out of Maine.
Response: NMFS agrees that large whales are susceptible to
ecosystem changes caused by climate change and right whale habitat use
changes have been documented. Baleen whales will most likely continue
to expand or shift their current range in response to prey species but
the nature of the impacts varies by species (MacLeod 2009). Right whale
habitat shifts in recent years follow their preferred prey farther
north as the Gulf of Maine warms (Meyer-Gutbrod et al. 2018, Meyer-
Gutbrod and Greene 2018, Record et al. 2019a, Record et al. 2019b).
Climate change impacts their preferred prey abundance, which is known
to impede reproductive success in this species (Meyer-Gutbrod et al.
2015a). Since 2010, there has been a documented change in right whale
prey distribution that has shifted right whales into new areas with
nascent risk reduction measures, increasing documented anthropogenic
mortality (Plourde et al. 2019, Record et al. 2019). However, data
shows that while abundance and duration of stays may have shifted,
right whales still occur in waters offshore of Maine and throughout the
Gulf of Maine at various times of the year. Past and near real-time
right whale sighting information can be accessed online at
<a href="http://fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings">fisheries.noaa.gov/resource/map/north-atlantic-right-whale-sightings</a>.
Comment 8.18: North Atlantic right whales do not occur in coastal,
shallow waters or in LMA 1, and therefore, Maine coastal waters,
particularly inside the 3 nm line, should be exempted from these
regulations.
Response: Gear marking and weak insertion requirements inside the
Maine exempted waters are not included in this rulemaking. These
measures are (gear marking) or will (weak insertions) be implemented by
Maine DMR. Note, however, that the risk reduction benefits of weak
insertions are considered in the FEIS.
Comment 8.19: Massachusetts lobster and Jonah crab trap/pot fishing
gear has never killed a right whale. These regulations will not save
whales and will force Massachusetts lobstermen out of business.
Response: No gear remains on most right whales that bear
entanglement scars. In the cases where gear does remain, it is rarely
collected, and even more rarely has any identifying marks. Between 1980
and 2016, the New England Aquarium analyzed 1,462 right whale
entanglement interactions (A. Knowlton pers comm). Only 110 of these
incidents had gear still attached, and in only 13 cases could that gear
be traced to the original set location. Because we lack information on
exactly where interactions occur, we use areas of high co-occurrence of
right whales and fishing gear as a proxy for identifying areas of high
entanglement potential. For example, the Massachusetts Restricted Area
was identified in the 2014 modifications to the ALWTRP based on high
co-occurrence given frequent habitat use by North Atlantic right whales
and fishing gear density. There are other areas in Massachusetts that
have been identified as hotspots where entanglement risk is high for
right whales based on predicted whale density and the presence and
strength of trap/pot gear (see Chapter 3).
There are cases in 2011 and 2012 where gear was recovered and were
identified as U.S. unknown trap/pot gear with red ALWTRP marks,
consistent with the marking scheme for Massachusetts fishermen outside
of exempted waters during those years. In 2001 and 2016, right whale
mortalities or serious injuries in Massachusetts lobster gear were
avoided only because they were successfully disentangled. Additionally,
a number of anchored minke whales and humpback whales have been
identified in Massachusetts gear in the past 15 years, so Massachusetts
lobster buoy lines do entangle and kill whales.
Comment 8.20: Whale population data is flawed because right whales
are traveling between Iceland and Labrador, and are not dead as the
model suggests.
Response: The right whale population model estimates the number of
right whales that have disappeared from the population. Given the high
percentage of the population seen in most years, those whales are to
some extent presumed dead. It is possible that some right whales are
not dead, but have emigrated to another area for an extended period.
Some individuals have been resighted after an absence of many years.
This is unusual, however, and it is unlikely that all the whales
considered dead have only emigrated. We currently have few records of
right whales seen beyond Newfoundland, and to date the whales
photographed in the Eastern Atlantic have all been seen again in U.S.
waters. See our response to Comment 8.7 for more detail.

9. Restricted Areas

The vast majority of commenters associated with campaigns, as well
as at least 97 unique commenters, support restricted areas as a
management tool, with many suggesting that some or all of the closures
should be larger and/or longer. A few commenters did not support
specific restricted areas, and some did not support restricted areas of
any kind. Many commenters supported the idea of dynamic management for
restricted areas, such that the areas could be opened if no right
whales were documented in the area at the time of a closure or areas
could be closed upon the sightings of right whales. Several

[[Page 51995]]

commenters questioned the risk reduction value for the Massachusetts
Bay Restricted Area, which we did continue to include in our risk
reduction estimate for the Preferred Alternative, as described in FEIS
Section 3.3.4.2.
Comment 9.1: Several commenters suggested that restricted areas
should apply to gillnet/mobile gear.
Response: The ALWTRT is meeting to develop recommendations to
reduce the risk of gillnet and other trap/pot fisheries on right whales
and other large whales. Seasonal restricted areas are likely to be
among the risk reduction strategies considered by the Team.
Comment 9.2: NMFS should use dynamic closures such as those being
used in Canada. Dynamic closures would allow fishermen to keep fishing
as long as the whales are not there.
Response: The ALWTRP has used Seasonal Area Management to protect
right whales in areas of annual predictable aggregations since the
inception of the Plan. The Plan also has employed dynamic management to
protect temporary right whale aggregations. Measures implemented
through amendments to the Plan in 2002 triggered closures or gear
modification requirements for lobster and gillnet fishing within a
prescribed distance from sightings of right whale aggregations.
Borggaard et al. (2017) summarizes the ALWTRP's amendments, including
the evolution of the Dynamic Area Management (DAM) program. More than
60 dynamic area management zones were implemented between 2002 and
2009. Borggaard et al. notes that the program was administratively
burdensome and attracted significant complaints regarding feasibility
and effectiveness, ranging from delayed implementation preventing whale
protection, to such rapid implementation that fishermen could not
safely remove or modify their gear in time for the required effective
dates. Given these concerns about the DAM program, the Team modified
the Plan to instead apply broad-based extensions of the gear
modifications used in DAMs (such as sinking groundline required in most
trap trawls through 2009 Plan amendments). Broad-based gear
requirements afford protection to whales, and is a measure that is
resilient to changes in whale and fishery distribution.
Although it was not effective at preventing mortalities in 2019,
Canada's vessel speed and fishery dynamic management program seems to
have afforded substantial protection to right whales in the Gulf of St.
Lawrence in 2018 and 2020. Canada implements time-area closures with
boundaries that vary based on direct observations that respond to
annual or seasonal resources distribution changes. To be done well
Canada currently implements an intensive and expensive surveillance
program through aerial surveys and acoustic monitoring. Canada also has
an agile regulatory implementation authority.
While NMFS and our collaborators may be able to support an
intensive surveillance program when resources are available, the U.S.
regulatory requirements are not as agile. As discussed above, while
DAMs were being implemented, NMFS rulemaking was often unsuccessful at
responding rapidly to changing conditions. NMFS rulemakings under the
MMPA and ESA are also subject to procedurally complex Federal laws and
requirements that Canadian resource management is not subject to,
including NEPA, PRA, APA, and E.O. 12866. These laws include
consultation requirements, notice and comment requirements, and
environmental and economic analyses of the impacts of Federal
rulemaking before final decisions can be made about Federal actions
that could have environmental effects. Evaluating the impacts of future
actions that have not yet been determined is logistically very
challenging. NMFS, other Federal agencies, and many collaborators are
continuing to develop models that may be able to project prey and whale
distribution into future months that could provide tools to develop
predictable triggers for dynamic area management measures.
Comment 9.3: Many commenters voiced concern that NMFS had not
adequately accounted for the effort displacement and crowding that will
be caused by closures.
Response: In response to these comments, we modified our analysis
in the FEIS to consider the impacts that would be caused by vessels
relocating gear from the LMA 1 Restricted Area to offshore waters of
Maine Lobster Zones C, D, and E. The analysis in FEIS Section 6.3
estimates the landing reduction for all vessels outside 12 nm in Maine
Lobster Zones C, D, and E by using data from the Maine DMR harvester
reports, which are only available for 10 percent of Maine lobster
fishermen, and from 100 percent of the dealer reports.
Comment 9.4: How will the restricted areas affect mobile gear
fishermen?
Response: Restricted areas may result in opening up of fishing
habitat that mobile gear vessels have not been able to access due to
the presence of lobster trawls, although the benefits may be marginal.
Mobile gear fishermen have expressed concerns about conflicts with
ropeless gear trawls that may be fished under EFPs and that could
increase gear conflicts if trawlers do not know the gear is on the
bottom. The final rule changes existing and new seasonal restricted
areas from fishing closures to buoy line closures. This would allow the
use of gear fished without buoy lines (commonly referred to as
``ropeless'' gear). Fishermen who obtain EFPs to fish without buoy
lines could pose some gear conflict threat to mobile gear fishermen.
Ropeless experimentation with the proper authorization can be done
anywhere, however access to areas otherwise closed to lobster fishing
could incentivize fishermen to conduct ropeless fishing within the
seasonal restricted areas.
Ropeless experimentation in the lobster and black sea bass trap/pot
fisheries is occurring already. In the northeast, NMFS and ropeless
fishing collaborators are working with groundfish and scallop bottom
trawl fishermen to assess bottom marking technology being developed to
allow mariners to detect lobster. Concerns that this experimentation
will occur broadly in the near term appear to be unfounded. Due to the
cost of ropeless technology, for the foreseeable future we believe that
ropeless experimentation will be limited to collaborators accessing the
NMFS ropeless gear cache, with perhaps an additional 10 percent of
trawls being fished with other ropeless units. The NMFS gear cache also
loans technology to collaborating mobile gear fishermen. For the next
few years, we anticipate that the largest number of trap/pot trawls
that could be supported by these efforts would approach about 330 pot/
trap trawls coastwide (Maine through Florida). Additionally, we
anticipate that EFP conditions will require participants to work with
adjacent trawl fisheries, as well as other notice requirements that
will prevent gear conflicts and support enforcement efforts.
Collaboration across gear sectors, use of the NMFS ropeless gear cache,
and reporting and monitoring conditions under exempted fishing permits
should keep costs and gear conflicts to a minimum while ropeless
technology is evaluated for potential use as an alternative to fishery
closures.
Comment 9.5: Many commenters were concerned that restricted areas
would create ``walls'' of dense gear right outside the borders, posing
a greater risk to right whales.

[[Page 51996]]

Response: We have modified our analysis in the FEIS to consider
gear displacement in response to the restricted areas. These analyses
resulted in changes in the South Island Restricted Area selected for
final rulemaking, and was one of the reasons that a seasonal buoy line
closure was not selected for the Georges Basin Restricted Area in the
preferred alternative. Updated calculations on the gear displacement
effects of restricted areas suggested the alternative restricted areas
displaced gear to areas of equal or higher co-occurrence, although
``walls'' of gear were not projected. The borders of the restricted
areas are not uniformly productive lobster habitat. Fishermen are more
likely to redistribute their gear to fishing ground that is productive.
Please see Chapters 3, 5, and 6 of the FEIS for more details.
Until recently, NMFS had no evidence that existing closures created
``walls'' of gear. In April 2021, however, concentrations of gear were
observed in a small open area east of the state of Massachusetts
extended spring closure area and west of the Massachusetts Restricted
Area (MRA). This appears to be an unintended consequence of the state
extension of the MRA in state waters to the northern state boundary.
Although this patch of Massachusetts Bay is not a productive fishing
ground during this season, fishery managers believe that fishermen
permitted to fish in both state and Federal waters did not remove their
gear in response to the closure, but instead moved gear out of the
state waters and into this small open band of water while waiting for
the MRA to open up May 1 (Bob Glenn, Massachusetts DMF, pers comm April
26, 2021). Federally permitted fishermen may also have been staging
their gear, taking it out over multiple trips and days until the MRA
opened. NMFS will consider future rulemaking to extend the northern
boundary of the MRA across to the coast to close that gap and prevent
an annual development of this high-risk dense gear storage area. The
unconstricted nature of waters surrounding other seasonal restricted
areas are not expected to similarly aggregate gear.
Comment 9.6: NMFS should add a restricted area north of Georges
Bank and/or expand the Georges Bank restricted area. Georges Basin has
a right whale hot-spot analysis five times greater than LMA 1.
Response: The final rule does not implement a restricted area in
Georges Basin, but instead includes additional reduction of lines in
this area (50 traps per trawl within the restricted area). The previous
analyses suggest that it is difficult to restrict fishing in this
hotspot without pushing effort to areas that increase risk outside of
the hotspot based on predicted whale density (see co-occurrence maps in
Chapter 5 and Appendix 5.2 the DEIS). Broad line reduction, however,
achieves line and associated risk reduction without incidentally
increasing co-occurrence of gear with right whales within this area.
Comment 9.7: The Pew Charitable Trusts' online message campaign of
more than 47,000 submissions requested that NMFS implement a year-round
closure South of the Islands, and seasonal closures in three areas in
the Gulf of Maine: Downeast summer closure from August 1-October 31, a
western Gulf of Maine spring closure from May 1 to July 31, and an
offshore migration closure from October 1 to April 30.
Response: NMFS analyzed the Gulf of Maine closures proposed by The
Pew Charitable Trusts along with the year-round closure proposed in
southern New England. Some of the areas identified were predicted to
move gear into areas of equal or greater risk. One area south of Cape
Cod is similar to the seasonal restricted area implemented in this
rule, although the area they proposed was larger in size and duration.
The risk reduction estimate for the configurations and seasons proposed
by Pew would achieve an estimated 12 percent risk reduction according
to Decision Support Tool Version 3, using the updated right whale
habitat density model (2010-2018).
However, to implement these measures, NMFS would have to set aside
the current rulemaking conducted under the ALWTRT, and divert staff
working on final rule and FEIS to prepare a new rule and NEPA analyses,
not a small undertaking. The final rule, which is estimated to achieve
approximately 67 percent risk reduction, is the NMFS priority. See FEIS
Section 3.4 for a further discussion of the petition and other
alternatives that were considered but rejected.
Comment 9.8: Many commenters wanted to know how NMFS will evaluate
and modify restricted areas based on changes to whale distribution, and
how often those evaluations will take place.
Response: NMFS anticipates annual meetings of the Team to review
the North Atlantic right whale and other large whale distribution and
abundance data, mortality and serious injury updates, retrieved
entanglement gear analyses, fishing effort data, and other relevant
research results. These data will be incorporated into the next
iterations of the Decision Support Tool. The Team will consider
modifications to seasonal restricted areas on an annual basis, and the
team will continue to make recommendations to amend the Plan. Following
the recommendations of the NMFS Expert Working Group, which reviewed
the right whale surveillance and monitoring programs (Oleson et al.
2020), the NEFSC anticipates a three-year surveillance and review
cycle, providing an additional opportunity to review right whale
distribution data to evaluate seasonal restricted areas and other
conservation measures contained within the ALWTRP.
Comment 9.9: Restricted areas should be based on the best available
science, which includes recent and historical sightings, acoustic data,
and prey data.
Response: As described in FEIS Section 5.1, the seasonal restricted
areas that are being implemented through the final rule are based on
the best available information, including recent and historical right
whale and other large whale sightings data, acoustic monitoring data,
and data on prey distribution. The FEIS includes analysis based on
updated data that has become available since we drafted the DEIS.
Comment 9.10: Dynamic triggers for closures would not be feasible,
and NMFS should remove that from consideration in the final rule.
Response: NMFS agrees that real time data are not available to
develop an effective trigger for restricted areas. To reduce risk to
right whales, the LMA 1 area will be implemented as a closure to
lobster/Jonah crab fishing with buoy lines from October through January
each year.
Comment 9.11: Commenters suggested that LMA 1 was designated a
``hotspot'' for right whales based on old data, and should be analyzed
using data after the ecosystem shift that began in 2010. As a result of
old data, the analysis in the proposed LMA 1 closed area appears to be
disproportionately high in risk reduction value compared to the
Massachusetts Restricted Area, given the relatively low abundance of
right whales in that area and the high abundance in Cape Cod Bay.
Response: In the DEIS, we evaluated whale data from 2003 to 2017
(Whale

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