[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Rules and Regulations]
[Pages 73848-73852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29195]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229 and 697

[Docket No. 141002823-4999-02]
RIN 0648-BE57


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations and 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 issues this final rule 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 rule will 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 rule would adjust the Outer Cape Lobster Management Area closure 
dates to February 1 through March 31.

DATES: Effective December 12, 2014.

ADDRESSES: Copies of the supporting documents for this action, as well 
as the Atlantic Large Whale Take Reduction Team meeting summaries and 
supporting documents, may be obtained from the Plan Web site (http://www.greateratlantic.fisheries.noaa.gov/protected/whaletrp/index.html) 
or by writing to Kate Swails, NMFS, Greater Atlantic Regional Fisheries 
Office, Protected Resources Division, 55 Great Republic Drive, 
Gloucester, MA 01930.

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

SUPPLEMENTARY INFORMATION:

Background

    This final rule combines two regulatory modifications that are 
authorized under different statutes. Specifically, this action amends 
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 effective 
January 1 through April 30 for all trap/pot fisheries. Trap/pot 
fisheries account 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

[[Page 73849]]

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 closure before it 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 closure and the exemption 
of the minimum number of traps per trawl requirements separately.

Changes to the Plan

    This action modifies the start date of the closure to begin on 
February 1, 2015 and expand the area by 912 square miles. This action 
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 closure, 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's 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 current and new 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 to above. The 
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 new 
closure area is larger than the current closure area, an increase of 
912 square miles. On average, the new 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 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, the original Outer Cape Area lobster 
closure dates would become outdated and may create unintended impacts 
to Federal lobster fishers. For example, if NMFS did 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 Plan. Therefore, in this rule, NMFS changes the start date of the 
Outer Cape Lobster Management Area closure dates from January 15 to 
February 1. Further, NMFS adjusts 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 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 will 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.

Comments and Responses

    NMFS published the proposed rule amending the Plan in the Federal 
Register on November 6, 2014 (79 FR 65918). Upon its publication, NMFS 
issued a press email announcing the rule; posted the proposed rule on 
the Plan Web site; and notified affected fishermen and interested 
parties via several NMFS email distribution outlets. The publication of 
the proposed rule was followed by a 15-day public comment period, which 
ended on November 21, 2014. NMFS received fourteen substantive comments 
via electronic submission. All comments received were thoroughly 
reviewed by NMFS. Comments were in full support of the action or in 
partial support of the action with some concerns. The comments 
addressed several topics, including adequacy of the model, need for 
enforcement of the closure, and confusion over changes to the 
Massachusetts Restricted Area closure vs the Outer Cape Lobster 
Management Area closure. The comments received are summarized below, 
followed by NMFS's responses.

Adequacy of Co-occurrence Model

    Comment 1: Several commenters questioned the adequacy of the co-
occurrence model and the data used to develop the model. They stated 
that the data are several years old, may be flawed, and may not 
accurately reflect the current fishing effort in the area.
    Response: We believe the information in the model is accurate but 
does have some limitations. We previously provided model documentation

[[Page 73850]]

describing the fishing effort data upon which the model relies, 
including a detailed discussion of the models limitations. We plan on 
updating the model with more current information as time allows for 
future rulemakings. The data used for this action are the same as the 
data used for the June 27, 2014 final rule implementing the most recent 
amendment to the Plan(79 FR 36586). This allows us to conduct a 
comparison between the effects of the new closure area verses the 
previously approved closure area.

Enforcement

    Comment 2: One commenter stated that NMFS needs to do a better job 
enforcing/supporting the Endangered Species Act and not just rely on 
the Marine Mammal Protection Act measures to reduce entanglements with 
lobster gear.
    Response: Although NMFS agrees that law enforcement is a critically 
important component to the success of its conservation measures, NMFS 
disagrees with the claim that it relies solely on the conservation 
measures implemented through the Marine Mammal Protection Act. NMFS has 
allocated funding for enforcement of take reduction plan regulations on 
an annual basis through its Endangered Species Act-based Joint 
Enforcement Agreements (JEA) with its state partners (Maine, New 
Hampshire, Massachusetts, Rhode Island, and New Jersey). In addition, 
over the past two years NMFS has also provided additional funding set 
aside for law enforcement to investigate potential ``hot spots.'' Hot 
spots are those areas identified as areas of concern and in need of 
additional enforcement.
    Comment 3: One commenter stated that there is a need for strict 
enforcement of the February 1 date for gear removal. The commenter 
stated that the Plan's requirements require robust monitoring and 
enforcement efforts.
    Response: We agree that the efficacy of the Plan depends on strong 
monitoring and enforcement of the regulations. We work closely with the 
U.S. Coast Guard, NOAA Office of Law Enforcement and state partners 
through Joint Enforcement Agreements to enforce the regulations and we 
will continue to do so. We will also conduct numerous outreach efforts 
to ensure the industry knows of the impending closure and the 
requirements to remove gear.

Changes to Massachusetts Restricted Area vs Outer Cape Lobster 
Management Area

    Comment 4: One commenter voiced confusion over the conflicting 
dates of the modified Massachusetts Restricted Area closure and the 
adjustment of the gear haul-out closure period for the Outer Cape 
Lobster Management Area.
    Response: The February 1-March 31 gear haul-out period in NMFS's 
lobster regulations does not conflict with the February 1-April 30 
modified Massachusetts Restricted Area closure period in NMFS's large 
whale Plan regulations. In short, the two closures pertain to two 
different, albeit mostly overlapping areas, which are being closed for 
two separate reasons. The different closure dates maintain the 
distinction in their purpose, i.e., the February 1-March 31 closure 
benefits the lobster resource, while the February 1-April 30 closure 
benefits whales. Where the lobster and whale areas overlap, fishers 
will have to abide by both closures, including the whale closure during 
the month of April.
    The final rule will adjust the Massachusetts Restricted Area 
closure area, consistent with the revised timing and area proposed by 
the Commonwealth of Massachusetts. The revised closure area is expanded 
by 912 square miles and includes most, but not all, of the Outer Cape 
Area. Under the June 2014 large whale Plan final rule, only the 
northern portion of the Outer Cape Area remained within the 
Massachusetts Restricted Area closure area. Additionally, this action 
revises the Massachusetts Restricted Area closure period to more 
effectively align with the co-occurrence model, by shifting the closure 
period from January 1-April 30, to February 1-April 30. Accordingly, we 
have also shifted the two-month Outer Cape Area gear haul-out period in 
the Federal lobster regulations to fall within the three-month 
Massachusetts Restricted Area closure period.
    Under the Federal lobster regulations, the Outer Cape Area is 
subject to a gear haul-out period, which requires all Outer Cape Area 
lobster trap fishers to remove their trap gear from this Area from 
January 15-March 15 each year. These dates were adopted in the lobster 
regulations because they match the dates adopted for this purpose in 
the Atlantic States Marine Fisheries Commission's Interstate Fishery 
Management Plan for Lobster and are consistent with those dates 
currently in place by the Commonwealth of Massachusetts. The intent of 
the haul-out period is to facilitate the enforcement of trap limits and 
is timed when lobster trap fishing activity in the area is at a 
relatively low level.
    Before we adopted the gear haul-out period into the Federal lobster 
regulations, as recommended by the Commission, the Commonwealth of 
Massachusetts was considering shifting the two-month Outer Cape Area 
haul-out period in state waters from the original January 15-March 15 
period, to February 1-March 31, to better address the needs of the 
Outer Cape fishery. Consequently, in the proposed rule for this 
measure, NMFS considered and sought comment on similarly shifting the 
haul-out dates should Massachusetts ultimately do so (see response to 
Comment 22, 78 FR 35217). By the time the final rule implementing the 
lobster management action published in the Federal Register (April 7, 
2014, 79 FR 19015), Massachusetts had not changed the gear haul-out 
period, so NMFS implemented in that rule the dates that were in place 
at the time in the Massachusetts regulations (January 15-March 15), to 
be consistent with the Commonwealth and the Commission's Plan. At the 
time, the start and end dates of the two-month gear haul-out period 
fell within the initial four-month Massachusetts Restricted Area 
closure dates under consideration in the Plan proposed rule (January 1-
April 30). So, the small portion of the Outer Cape Area that overlapped 
into the initial Massachusetts Restricted Area closure area would 
continue to be closed to lobster traps after the haul-out period ended, 
under the Plan, because the haul-out period would end before the Plan 
closure period ends.
    Since the lobster gear haul-out regulations were implemented, the 
Commonwealth has come forward with a comprehensive revision to the 
Massachusetts Restricted Area closure area, which now includes all of 
the Outer Cape Area, with the exception of a small portion located west 
of 70 degrees north longitude, in Nantucket Sound. The Massachusetts 
proposal also shifts the closure dates for the Massachusetts Restricted 
Area closure to begin on February 1. Therefore, we have adjusted the 
lobster regulations governing the Outer Cape Area gear haul-out period, 
so that Outer Cape lobster trap fishers operating inside the affected 
area would not be impacted by the closure two weeks earlier due to the 
fact that the Outer Cape Area gear haul-out period is currently set for 
a January 15 closure. Additionally, we did not extend the full three-
month closure date to the entire Outer Cape Area, because we did not 
want to unnecessarily impact trap fishers operating in the

[[Page 73851]]

western portion of the Outer Cape Area, which is outside of the 
modified Massachusetts Restricted Area closure area.
    Upon receipt of the Massachusetts proposal, NMFS assessed the 
impacts associated with the revised closure area, but did not formally 
assess the potential impacts in the portion of the Outer Cape Area that 
falls outside of the revised closure area (that area west of 70 degrees 
north longitude). Additionally, because the initial assessment on the 
Outer Cape Area gear haul out-period included only a variable two-month 
period, NMFS did not have the information needed to justify aligning 
the entire Outer Cape Area gear haul-out period with the three-month 
closure period for the vertical line rule, particularly because it 
could potentially impact those fishers operating in April in the 
portion of the Outer Cape Area that falls outside the vertical line 
closure area. Regardless, this final rule revises the Outer Cape Area 
lobster trap gear haul-out period to fall within the Massachusetts 
Restricted Area closure period. Therefore, when the gear haul-out 
period ends on March 15, all traps/pots (including lobster traps) will 
remain prohibited in the Massachusetts Restricted area through April 
30, under the Plan. Shifting the dates, but maintaining the length of 
the two-month gear haul-out period will prevent those fishermen fishing 
in the Outer Cape Area west of 70 degrees north longitude from being 
subject to a three-month closure, when not required under the Plan.

NEPA/ESA Analysis

    Comment 5: One commenter was concerned with the analysis the Agency 
conducted for this action under the Endangered Species Act (ESA) and 
National Environmental Policy Act (NEPA) saying that it is not legally 
sufficient. The commenter stressed that future changes to the Plan must 
be evaluated using a full and proper NEPA analysis and reinitiation of 
the ESA Section 7 consultation.
    Response: We feel the analysis we conducted for this action is 
sufficient. After considering the proposed action, new information and 
new circumstances, we determined that it is not necessary to supplement 
the 2014 Plan Final Environmental Impact Statement (FEIS) and Record of 
Decision (ROD) because: (1) the shift of the closure in time/area and 
its impacts are not substantially different from what was originally 
considered and analyzed; and (2) no new information or circumstances 
exist that are significantly different from when the ROD was signed on 
June 20, 2014. The FEIS and ROD remain valid to support this action. 
NMFS has also determined that it is not necessary to supplement the 
American Lobster FMP 2014 FEIS and ROD because: (1) there are no 
additional impacts from shifting the closure period by two weeks; and 
(2) no new information or circumstances exist that are significantly 
different from when the ROD was signed on April 7, 2014. The FEIS and 
ROD remain valid to support this action. Also, NMFS believes that the 
changes to the rule amending the Plan do not constitute a modification 
to the operation of the Plan that would cause an effect to ESA-listed 
species or critical habitat not considered in the previous 
consultations. Therefore, the proposed measures do not meet the 
triggers for reinitiation of consultation. Should activities under this 
action change or new information become available that changes the 
basis for this determination, then consultation should be reinitiated.

Lack of Management Measures

    Comment 6: One commenter was concerned that there seems to be a 
lack of policies for addressing climate change through adaptive 
management when protecting right whales. The commenter suggests instead 
of shifting the date of the closure to begin on February 1 the Agency 
should manage the area using Dynamic Area Management procedures instead 
of opening the whole area to fishing for the whole month of January.
    Response: As stated in response to similar comments in the June 27, 
2014 final rule, we acknowledge that it is challenging to manage 
resources in the face of changing environmental conditions. The Plan is 
an evolving Plan and should NMFS discover that conservation measures 
are no longer appropriate as a result of climate change and shifting 
baselines, we have the ability to make changes to the measures.
    Comment 7: One commenter supported the closure but wanted the 
measures to extend to the gillnet fishery.
    Response: As we have stated in response to comments on the June 27, 
2014 final rule, including gillnets in the recent management measures 
was analyzed in the FEIS and rejected (See Chapter 3, Appendix 3-A of 
the May 2014 FEIS). The co-occurrence model shows that 99% of the 
vertical lines coastwide are from lobster trap/pot and other trap/pot 
fisheries. For this reason, we chose to focus this closure (and recent 
management measures) on trap/pot gear only.

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 final rule would not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification was published with the proposed rule and 
is not repeated here. No comments were received regarding the economic 
impact of this final rule. As a result, a final regulatory flexibility 
analysis is not required and one was not prepared.
    The Assistant Administrator finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effectiveness. The contents of 
this action serve to remove existing commercial fishing restrictions 
and to prevent negative economic impacts from otherwise occurring as 
the Massachusetts Restricted Area would have been effective beginning 
January 1, 2014. Delaying the effectiveness of this rule is contrary to 
the public interest, because any delay will prevent the additional 
fishery activities implemented by this rule, thereby reducing revenues, 
and providing no additional meaningful benefit to large whales. 
Accordingly, the 30-day delay in effectiveness is both unnecessary and 
contrary to the public interest, and as such, this rule will become 
effective immediately.

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: December 8, 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 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:


[[Page 73852]]


    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.
------------------------------------------------------------------------
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'
------------------------------------------------------------------------

    (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 31, 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.
* * * * *

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 text 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. 2014-29195 Filed 12-11-14; 8:45 am]
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