[Federal Register Volume 79, Number 215 (Thursday, November 6, 2014)]
[Proposed Rules]
[Pages 65918-65921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26323]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229 and 697

[Docket No. 141002823-4823-01]
RIN 0648-BE57


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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to amend the regulations implementing the 
Atlantic Large Whale Take Reduction Plan to modify the start date of 
the Massachusetts Restricted Area to begin on February 1, 2015, and to 
expand the Massachusetts Restricted Area by 912 square miles. In 
addition, this action also proposes to revise the Federal lobster 
regulations to be consistent with the revised start date of the 
Massachusetts Restricted Area. Recent Federal lobster regulations 
closed the Outer Cape Lobster Management Area to lobster trap fishing 
from January 15 through March 15, which is consistent with the lobster 
trap haul-out period in the Atlantic States Marine Fisheries 
Commission's Interstate Fishery Management Plan for American Lobster. 
This proposed rule would adjust the Outer Cape Lobster Management Area 
closure dates to February 1 through March 31.

DATES: Submit comments on or before November 21, 2014.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2014-0127, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal at www.regulations.gov.
     Mail: Submit written comments to Kim Damon-Randall, 
Assistant Regional Administrator for Protected Resources, NMFS Greater 
Atlantic Region, 55 Great Republic Dr., Gloucester, MA 01930, Attn: 
Large Whale Proposed Rule.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kate Swails, NMFS Greater Atlantic 
Region, 978-282-8481, [email protected]; or, Kristy Long, NMFS 
Office of Protected Resources, 206-526-4792, [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the Plan and the take 
reduction planning process can be downloaded from the Plan Web site at 
http://www.greateratlantic.fisheries.noaa.gov/

[[Page 65919]]

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

Background

    This proposed rule combines two regulatory modifications that are 
authorized under different statutes. Specifically, this action proposes 
to amend the regulations implementing: (1) the Atlantic Large Whale 
Plan (Plan)_regulations found at 50 CFR part 229 under the authority of 
the MMPA; and (2) the Federal American lobster Fishery Management Plan 
regulations found at 50 CFR part 697 under the authority of the 
Atlantic Coastal Fisheries Cooperative Management Act.
    NMFS published a final rule implementing an amendment to the Plan 
on June 27, 2014 (79 FR 36586) to address large whale entanglement 
risks associated with vertical line (or buoy lines) from commercial 
trap/pot fisheries. That amendment included gear modifications, gear 
setting requirements, a seasonal closure (Massachusetts Restricted 
Area) and gear marking for both the trap/pot and the gillnet fisheries. 
The Massachusetts Restricted Area is a seasonal closure that is 
effective January 1 through April 30 for all trap/pot fisheries, which 
accounts for the largest number of vertical lines in the water column.
    In September 2010, in consultation with the Atlantic Large Whale 
Take Reduction Team (Team), NMFS developed protocols for considering 
modifications or exemptions to the regulations implementing the Plan. 
Following these protocols, on August 18, 2014, the Massachusetts 
Division of Marine Fisheries (DMF) submitted a proposal to modify the 
Massachusetts Restricted Area and exempt several areas from the gear 
setting requirements to address safety and economic concerns raised by 
Massachusetts fishermen.

Review of Massachusetts Restricted Area

    The proposal submitted by DMF contains two components:
    (1) Modify the Massachusetts Restricted Area (closure), which 
begins on January 1, 2015 by:
    [cir] Modifying the timing and size of the closure.
    [cir] Establishing gear stowage areas during a portion of the 
closure.
    (2) Establish several exemption areas to the current minimum number 
of traps per trawl requirement, which take effect June 1, 2015.
    [cir] Exemption areas would include portions of Southern New 
England waters (Buzzards Bay, Vineyard Sound, and Nantucket Sound) as 
well as state waters north and east of Cape Cod.
    Given the importance of addressing the Massachusetts Restricted 
Area before the closure begins on January 1, 2015, and the time needed 
to complete the analysis of the entire suite of requests contained in 
the entire DMF proposal, NMFS decided to address the modifications to 
the Massachusetts Restricted Area and the exemption of the minimum 
number of traps per trawl requirements separately.

Changes Proposed to the Plan

    NMFS proposes to modify the start date of the Massachusetts 
Restricted Area to begin on February 1, 2015 and expand the area by 912 
square miles. NMFS proposes this action because it responds to comments 
to improve the past action while balancing risk reduction 
considerations. Specifically, the action decreases the number of 
affected vessels and results in reductions in compliance costs while 
maintaining the same entanglement risk reduction as provided in the 
June 2014 amendment to the Plan.
    At its October 1, 2014 meeting, the Team discussed the requested 
modifications to the Massachusetts Restricted Area, as well as the 
creation of the trap/pot storage areas. The discussion included a 
review of the merits and analysis of the DMF proposal utilizing NMFS' 
co-occurrence model. The model incorporates information on geographic 
and temporal variations in fishing effort and the distribution of 
fishing line, as well as whale sightings per unit of survey effort, and 
identifies areas and times at which whales and commercial fishing gear 
are likely to co-occur. The model's final product is a set of 
indicators that provide information on factors that contribute to the 
risk of entanglement at various locations and at different points in 
time. These indicators, in particular the number of vertical lines in 
an area and the area's co-occurrence score, assumed to be related to 
the relative entanglement risk in different locations. They also 
provide a basis for comparing the impact of alternative management 
measures on the potential for entanglements to occur.
    NMFS compared the impacts of the two closure areas for conservation 
benefit using its co-occurrence model and economic analysis. The 
methods and data sources used in this analysis are consistent with 
those applied in the Final Environmental Impact Statement (FEIS) for 
the 2014 Plan amendments referred above. The proposed changes to the 
closure would allow approximately 125 vessels to continue to fish 
during a lucrative time of year for the fishing industry and would 
require a slightly greater number of vessels to suspend activity from 
February through April. This is because the proposed closure area is 
larger than the current closure area, an increase of 912 square miles. 
On average, the proposed closure area offers a similar reduction in co-
occurrence to that of the current closure (38.2%) while providing less 
of an economic burden. Therefore, this proposed action minimizes 
potential economic impacts without increasing risk to large whales.
    At the conclusion of the October 1, 2014, meeting, the Team, by 
consensus, recommended that we modify the Massachusetts Restricted Area 
as proposed by DMF. However, the Team recommended that NMFS not act on 
DMF's proposed trap/pot storage areas. The remainder of DMF's proposal 
will be analyzed and discussed with the Team during its January 2015 
meeting. The Team will provide NMFS a recommendation at that time on 
whether to move forward with the remaining components of the DMF 
proposal.

Changes to American Lobster Regulations

    On April 7, 2014, NMFS published a final rule (79 FR 19015) that 
implemented the Outer Cape Area lobster haul-out period. In that rule, 
NMFS acknowledged in the preamble that it might need to adjust the 
closure dates if Massachusetts ultimately requested a different time 
period (See Response to Comment 22, 78 FR 35217, June 12, 2013). Now 
that Massachusetts has done so, if this proposed rule is adopted, the 
original Outer Cape Area lobster closure dates would become outdated 
and may create unintended impacts to Federal lobster fishers. For 
example, if NMFS does not adjust the January 15 start date, Federal 
lobster fishers would have to remove their traps from the Outer Cape 
Area two weeks earlier than the February 1 start date that exists in 
the Massachusetts regulations and the large whale Plan. Therefore, in 
this rule, NMFS proposes to change the start date of the Outer Cape 
Lobster Management Area closure dates from January 15 to February 1. 
Further, NMFS proposes to adjust the end of the Outer Cape Area haul-
out period by two weeks from March 15 to March 31, to continue with a 
full two-month haul-out period as dictated by the Commission. NMFS 
considered

[[Page 65920]]

extending the haul-out period to April 30, to be consistent with the 
Plan. However, the southwestern portion of the Outer Cape Area is not 
included in the Plan's revised closure area, and would be closed for an 
additional month longer than the Commission's two-month haul-out 
period. Accordingly, NMFS proposes to simply shift the Outer Cape Area 
haul-out period dates ahead by two weeks. After March 31, lobster trap 
fishermen in the Massachusetts Restricted Area will be held to the more 
restrictive Plan dates through April 30.

Classification

    The Office of Management and Budget (OMB) has determined that this 
action is not significant for the purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities.
    The fisheries affected by this proposed rule are the Northeast 
American lobster trap/pot, Atlantic blue crab trap/pot and Atlantic 
mixed species trap/pot. The population of vessels that are affected by 
this proposed action includes commercial trap/pot vessels fishing in 
state and federal waters in Massachusetts. On June 12, 2014, the SBA 
issued an interim final rule revising the small business size standards 
for several industries effective July 14, 2014 (79 FR 33647). The rule 
increased the size standard for Finfish Fishing from $19.0 to 20.5 
million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine 
Fishing from $7.0 to 7.5 million (79 FR 33656, 33660, 33666). 
Currently, the Massachusetts Restricted Area closure impacts an average 
of 109 vessels. All of the entities (fishing vessels) affected by this 
action are considered small entities under the SBA size standards for 
small fishing businesses.
    The analysis of the economic impacts for this action were based on 
data from the 2014 FEIS that supported the most recent Plan amendment 
published as a final rule on June 27, 2014 (79 FR 36586). The number of 
vessels and level of overall fishing effort have remained constant 
since the preparation of the FEIS. Therefore, NMFS believes that these 
data are still relevant for the purpose of this analysis.
    Currently, the Massachusetts Restricted Area closure impacts an 
average of 109 vessels, with $1.2 M in gross revenue potentially lost 
during the closure period. Relatively strong landings make this a 
critical time for the Massachusetts lobster fishery, especially in the 
northern part of the closure area. Based on an analysis of the affected 
number of vessels, average traps per vessel, and net revenues, NMFS 
estimates that by starting the closure in February, instead of January, 
this action would result in net revenue gains of $447,000. The net 
change in revenue has two components: (1) the revenue gain associated 
with allowing trap/pot fishing in January within the current boundaries 
of the Massachusetts Bay Restricted Area, and (2) the revenue loss 
associated with expanding the boundaries of the closure to include all 
waters within the Outer Cape Lobster Management Area, thus prohibiting 
trap/pot fishing in these newly-closed waters from February through 
April. The difference between the two is the overall net revenue gain.
    This rule would result in positive economic impacts on the affected 
vessels by excluding the prime fishing month of January. The start date 
of February 1 would allow lobstermen to complete normal lobster fishing 
operations through the lucrative holiday months of November into 
January. Although the closed area is increasing by 912 square miles, 
the number of vessels affected by the increase in area is minimal. The 
average number of vessels impacted in the larger area is 106 versus the 
109 vessels impacted under current regulations.
    NMFS has determined that this action is consistent to the maximum 
extent practicable with the approved coastal management programs of 
Massachusetts. This determination was submitted for review by the 
responsible state agency under section 307 of the Coastal Zone 
Management Act.
    This proposed rule contains policies with federalism implications 
as that term is defined in Executive Order 13132. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs will 
provide notice of the proposed action to the appropriate official(s) of 
affected state, local, and/or tribal governments.

List of Subjects

50 CFR Part 229

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

50 CFR Part 697

    Fisheries, fishing.

    Dated: October 31, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 229 and 697 
are proposed to be amended to read as follows:

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

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

    Authority:  16 U.S.C. 1361 et seq.; Sec.  229.32(f) also issued 
under 16 U.S.C. 1531 et seq.

0
2. In Sec.  229.32, paragraph (c)(3) is revised to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (c) * * *
    (3) Massachusetts Restricted Area--(i) Area. The Massachusetts 
restricted area is bounded by the following points connected by 
straight lines in the order listed, and bounded on the west by the 
shoreline of Cape Cod, Massachusetts.

------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
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MRA1..........................................   42[deg]12'   70[deg]44'
MRA2..........................................   42[deg]12'   70[deg]30'
MRA3..........................................   42[deg]30'   70[deg]30'
MRA4..........................................   42[deg]30'   69[deg]45'
MRA5..........................................  41[deg]56.5   69[deg]45'
                                                          '
MRA6..........................................  41[deg]21.5   69[deg]16'
                                                          '
MRA7..........................................  41[deg]15.3  69[deg]57.9
                                                          '            '
MRA8..........................................  41[deg]20.3   70[deg]00'
                                                          '
MRA9..........................................  41[deg]40.2   70[deg]00'
                                                          '
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    (ii) Closure. From February 1 to April 30, it is prohibited to fish 
with, set, or possess trap/pot gear in this area unless stowed in 
accordance with Sec.  229.2.
    (iii) Area-specific gear or vessel requirements. From May 1 through 
January 30, no person or vessel may fish with or possess trap/pot gear 
in the Massachusetts Restricted Area unless that gear complies with the 
gear marking requirements specified in paragraph (b) of this section, 
the universal trap/pot gear requirements specified in paragraph (c)(1) 
of this section, and the area-specific requirements listed in (c)(2) of 
this section, or unless the gear is stowed as specified in Sec.  229.2.
* * * * *

[[Page 65921]]

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

0
3. The authority citation for part 697 continues to read as follows:

    Authority:  16 U.S.C. 5101 et seq.

0
4. In Sec.  697.7, revise paragraph (c)(1)(xxx) introductory paragraph 
to read as follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (xxx) Outer Cape Area seasonal closure. The Federal waters of the 
Outer Cape Area shall be closed to lobster fishing with traps by 
Federal lobster permit holders from February 1 through March 31.
* * * * *
[FR Doc. 2014-26323 Filed 11-5-14; 8:45 am]
BILLING CODE 3510-22-P