[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Rules and Regulations]
[Pages 62493-62494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24510]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 211104-0225]
RIN 0648-BK96


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Removal of 
Prohibitions for Gillnet Gear in Nantucket Lightship and Closed Area I

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

ACTION: Final rule.

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SUMMARY: This action reopens gillnet fishing in the Nantucket Lightship 
and Closed Area I Closure Areas previously ordered suspended by a Court 
decision. Gillnet fishing will be allowed in the Nantucket Lightship 
and Closed Area I Groundfish Closure Areas, as approved in the New 
England Fishery Management Council's Omnibus Essential Fish Habitat 
Amendment 2. This action is necessary to end the suspension of measures 
from a previously approved and implemented Council action and remove 
temporary prohibitions that were in place to comply with a Federal 
court order.

DATES: Effective on November 10, 2021.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Senior Fishery Program 
Specialist, Greater Atlantic Regional Fisheries Office, 978-281-9218 
[email protected].

SUPPLEMENTARY INFORMATION: On January 3, 2018, NMFS partially approved 
the New England Fishery Management Council's Omnibus Essential Fish 
Habitat Amendment 2. The Omnibus Amendment updated essential fish 
habitat designations for all Council-managed species and implemented 
changes to the spatial management of Council-managed fisheries 
throughout the Gulf of Maine, Georges Bank, and Southern New England. 
On April 9, 2018, a final rule implemented the approved measures (83 FR 
15240). The final rule opened, modified, and maintained various 
previously closed areas, as well as established new closures to 
implement approved measures of the Amendment. The Nantucket Lightship 
and Closed Area I Groundfish Closure Areas were opened to fishing by 
gears capable of catching groundfish, including gillnets and bottom-
trawls, throughout the areas in this final rule. (Note, scallop fishing 
was prohibited for a brief time, pending a follow-on scallop action 
that incorporated the newly opened areas into the Scallop Fishery 
Management Plan's rotational management program. See: 83 FR 17300; 
April 19, 2018.) Directed groundfish fishing had been prohibited in 
these general areas consistently since the 1980s and early 1990s.
    The Conservation Law Foundation filed suit against NMFS arguing 
that the rulemaking process that allowed the opening of the Nantucket 
Lightship and Closed Area I Groundfish Closure Areas to gears capable 
of catching groundfish, including gillnet gear, was not done in 
compliance with the Endangered Species Act consultation requirements as 
it pertains to North Atlantic right whales.
    On October 28, 2019, First District Court Judge James E. Boasberg 
(see Conservation Law Found. v. Ross, No. CV 18-1087 (JEB), 2019 WL 
5549814 (D.D.C. Oct. 28, 2019)) agreed with the Conservation Law 
Foundation and enjoined NMFS from allowing gillnet fishing in those 
previously closed areas, until such time that NMFS fully complied with 
the requirements of the Endangered Species Act and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). We 
implemented that suspension through a final rule on December 17, 2019 
(84 FR 68798).

Reopening Closure Areas to Gillnet Fishing

    Recently, NMFS completed the Endangered Species Act Section 7 
Consultation on 10 fisheries and the New England Fishery Management 
Council's Omnibus Essential Fish Habitat Amendment. The consultation 
concluded that the implementation of the approved portions of the 
Amendment, including removing the prohibition on gillnet fishing in the 
Nantucket Lightship and Closed Area I Groundfish Closure Areas, would 
not result in large shifts of fishing effort across or within the 
region. As a result, these shifts are not expected to increase the risk 
to protected species in the region. The completion of this consultation 
satisfied the requirements of the court order.
    Therefore, this action re-opens the Nantucket Lightship and Closed 
Area I Closure Area to gillnet fishing, as approved in the Omnibus 
Habitat Amendment.

[[Page 62494]]

On-Going Issues Related to Gillnet Fishing and North Atlantic Right 
Whales

    The Atlantic Large Whale Take Reduction Team is considering broader 
impacts of gillnet fishing on North Atlantic right whales. These 
considerations may include area-based closures (seasonal or year-round) 
or other measures that may restrict gillnet fishing in the areas of the 
Nantucket Lightship and Groundfish Closure Areas in the future. 
Interested parties should continue to follow the Take Reduction Team 
process and provide comments, concerns, and suggestions as described. 
More information is available on our website (https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-mammal-protection/atlantic-large-whale-take-reduction-plan).

Classification

    Pursuant to section 304(a) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that the regulations as 
implemented in this final rule are necessary to discharge the 
Secretary's responsibilities under the Magnuson-Stevens Act and to 
comply with the Order issued from the First District Court on October 
28, 2019.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The NMFS Assistant Administrator finds good cause that prior notice 
and an opportunity for public comment is unnecessary or contrary to 
public interest pursuant to 5 U.S.C. 553(b)(B). Notice and opportunity 
for public comment prior to reopening the Nantucket Lightship and 
Closed Area 1 Groundfish Closure Areas to gillnet fishing is contrary 
to public interest because the Omnibus Habitat Amendment and its 
suspended measures fully comply with the Endangered Species Act and 
Magnuson-Stevens Act, and the prohibitions against fishing with 
gillnets are no longer necessary to comply with the Court's order 
enjoining fishing with gillnets in the Nantucket Lightship and Closed 
Area I Groundfish Closure Areas. Because the Amendment is now in full 
compliance with the Endangered Species Act and Magnuson-Stevens Act, 
the Secretary has no basis on which to keep the areas closed or modify 
the gillnet provisions that the Secretary approved in the Amendment. 
Further delaying reopening the areas for public comment would be 
inconsistent with the Secretary's responsibility to carry out fishery 
management amendments the Secretary has approved and are in full 
compliance with all applicable laws.
    Additional opportunity for public comment on the open areas is 
unnecessary because notice and opportunity for comment on the Omnibus 
Habitat Amendment measures and its implementing regulations were 
provided already. The development of the Omnibus Habitat Amendment was 
a public process led by the New England Fishery Management Council, 
during which there were over 200 public meetings. The public had an 
opportunity to comment on the Amendment's measures and regulations 
involved in this action when they were implemented through publication 
in the Federal Register of the proposed and final rules for the Omnibus 
Habitat Amendment. An additional opportunity for comments on the 
suspended measures would be unnecessarily duplicative. Therefore, it is 
unnecessary and contrary to the public interest to delay this action 
for prior notice and the opportunity for public comment.
    For the same reasons as above and additional reasons stated below, 
pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds 
good cause for these provisions to be effective immediately upon 
publication of this final rule. A delay in implementation is 
unnecessary because affected members of the public do not need time to 
prepare and the rule relieves a restriction implemented by the Court. 
The suspended measures were implemented on April 9, 2018. From that day 
until December 17, 2019, approximately 11 gillnet vessels took 39 trips 
into these areas. These vessel owners and operators along with others 
are familiar with the suspended measures. Access to these areas once 
these measures are restored and the prohibitions removed in this action 
is expected to provide an economic benefit to gillnet vessels fishing 
in these areas. Delaying the effective date for reopening these areas 
will unnecessarily delay and reduce this economic benefit to these 
vessels that could be gained during this fishing year.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 4, 2021.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq.


Sec.  648.81  [Amended]

0
2. In Sec.  648.81, remove paragraph (a)(6).

[FR Doc. 2021-24510 Filed 11-9-21; 8:45 am]
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