[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Proposed Rules]
[Pages 63917-63928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20147]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 230912-0217]
RIN 0648-BM31
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS is proposing an amendment to the Atlantic Large Whale
Take Reduction Plan (Plan) to expand the boundaries of the
Massachusetts Restricted Area to include the wedge between State and
Federal waters
[[Page 63918]]
known as the Massachusetts Restricted Area Wedge. The Massachusetts
Restricted Area Wedge was closed by emergency rulemaking in 2022 and
2023 due to the immediate risk to North Atlantic right whale (Eubalaena
glacialis) mortality and serious injury caused by buoy lines in an area
with a high co-occurrence of whales and buoy lines. This risk is
expected to recur annually. This action will address this gap in
protection and reduce the incidental mortality and serious injury of
right whales, fin whales (Balaenoptera physalus), and humpback whales
(Megaptera novaeangliae) in commercial trap/pot fisheries.
DATES: Submit comments on or before October 18, 2023.
ADDRESSES: You may submit written and oral comments, identified by
NOAA-NMFS-2023-0083, by the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter [NOAA-NMFS-2023-0083] in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
Instructions: All comments received that are timely and properly
submitted are a part of the public record and will generally be posted
for public viewing on https://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. We
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous). Comments received after the end of the
comment period or outside the scope of this proposed rule, may not be
considered.
NMFS is interested in all comments on the proposed rule. However,
we are specifically soliciting comments on the timing and spatial
extent of the closure, if implemented. In addition to comments on this
proposed rule, reviewers are asked to comment on and identify support
for Alternative 1, 2, or 3 described in the associated Environmental
Assessment (EA; see instructions below to access the EA and other
background documents).
Oral Comments: Public meeting locations or webinar access
information will be posted on the Plan website at https://www.fisheries.noaa.gov/ALWTRP or contact Jennifer Goebel for
information on locations and dates. See FOR FURTHER INFORMATION CONTACT
below.
Copies of this action, including the draft EA and the Regulatory
Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA)
prepared in support of this action, are available via the internet at
https://www.regulations.gov/ or by contacting Jennifer Goebel (see FOR
FURTHER INFORMATION CONTACT below).
Several of the background documents for the Atlantic Large Whale
Take Reduction Plan (Plan or ALWTRP) and the take reduction planning
process can also be downloaded from the Plan website (https://www.fisheries.noaa.gov/ALWTRP), including copies of the draft EA/RIR/
IRFA for this action. Information on the analytical tools used to
support the development and analysis of the proposed regulations can be
found in the EA and appendices. The complete text of current
regulations implementing the Plan can be found in 50 CFR 229.32 or
downloaded from the Plan's website, along with outreach compliance
guides to current regulations.
FOR FURTHER INFORMATION CONTACT: Jennifer Goebel, 978-281-9175,
[email protected], Colleen Coogan, 978-281-9181,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Background
Summary of Proposed Change
Classification
References
Background
The North Atlantic right whale (Eubalaena glacialis, hereafter
referred to as right whale) population has been in decline since 2010,
with the most recent published estimate of right whale population size
in 2020 at 338 whales (95 percent confidence interval: 325-350) with a
strong male bias (Hayes et al. 2023, Pace et al. 2017, Pace 2021). The
steep population decline is a result of high levels of human-caused
mortality from entanglement in fishing gear and vessel strikes in both
the U.S. and Canada. An Unusual Mortality Event (UME) was declared for
the population in 2017, due to high rates of documented vessel strikes
and entanglement in fishing gear. As of August 31, 2023, the UME
includes 36 detected mortalities (17 in 2017, 3 in 2018, 10 in 2019, 2
in 2020, 2 in 2021, 0 in 2022, and 2 in 2023). In addition, 34 serious
injuries were documented (6 in 2017, 6 in 2018, 3 in 2019, 6 in 2020, 5
in 2021, 4 in 2022, and 4 in 2023). Lastly, 45 morbidity (or sublethal
injury or illness) cases were documented (13 in 2017, 12 in 2018, 6 in
2019, 6 in 2020, 1 in 2021, 6 in 2022, and 1 in 2023; https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event). Documented mortalities
and serious injuries represent a minimum; population models estimate
that 64 percent of all mortalities are not seen and not accounted for
in the right whale observed incident data (Pace et al. 2021, Pace et
al. 2017).
The North Atlantic right whale is listed as an endangered species
under the Endangered Species Act (ESA) and is a strategic stock under
the Marine Mammal Protection Act (MMPA). NMFS is required by the MMPA
to reduce mortality and serious injury incidental to commercial fishing
to below a stock's potential biological removal (PBR) level. PBR is
defined as ``the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population.'' In the most recently published stock assessment report
(Hayes et al. 2023), PBR for the North Atlantic right whale population
is 0.7 whales per year. Between 2010 and 2022, there has not been a
single year where observed mortality and serious injury of right whales
was below a PBR of 0.7. Moreover, total estimated mortality is higher
than observed mortality.
The Plan 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 certain 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 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 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 of stakeholders
that includes the following: Representatives of Federal agencies; each
coastal State that has fisheries interacting with the species or stock;
appropriate Regional Fishery Management Councils; interstate fisheries
commissions; academic and scientific organizations; environmental
[[Page 63919]]
groups; all commercial and recreational fisheries groups using gear
types that 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 on
the Atlantic Large Whale Take Reduction Team.
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The Atlantic Large Whale Take Reduction Team (ALWTRT) was
established in 1996 and has 60 members, including 23 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 ALWTRT met
and recommended modifications to the ALWTRP, implemented by NMFS
through rulemaking, several times since 1997 in an ongoing effort to
meet the MMPA take reduction goals.
Mortalities and serious injuries of right whales continue at levels
exceeding the right whale's PBR. NMFS informed the ALWTRT in late 2017
that it was necessary to reconvene to develop recommendations to reduce
the impacts of U.S. commercial fisheries on large whales, with a focus
on reducing risk to the declining North Atlantic right whale
population. During an ALWTRT meeting in April 2019, the ALWTRT
recommended a framework of measures to modify lobster and Jonah crab
trap/pot trawls within the Northeast Region Trap/Pot Management Area
(Northeast Region). The recommended measures intended to reduce the
risk of mortality and serious injury to right whales incidentally
entangled in buoy lines in those fisheries by at least 60 percent. At
the time of the 2019 ALWTRT meeting and subsequent rulemaking, 60
percent was the best estimate of the minimum amount of risk reduction
necessary to reduce annual mortality and serious injury rates below
PBR. This estimate was calculated based on observed entanglements. On
July 2, 2021, NMFS published a Final Environmental Impact Statement
(FEIS) (86 FR 35288), with a 30-day comment period. The Record of
Decision was signed on August 30, 2021, and the final rule published on
September 17, 2021 (86 FR 51970). NMFS estimated that the new rule
would meet the minimum 60-percent reduction in risk recommended by the
ALWTRT in 2019, though updated estimates suggest the rule only achieved
47 percent risk reduction coastwide. Additional data on right whale
population estimates, the stock's decline, changes in distribution and
reproductive rates, and entanglement-related mortalities and serious
injuries that have been documented in recent years can be found in
Chapters 2 and 4 of the FEIS (NMFS 2021) and the preamble to the 2021
final rule (86 FR 51970, September 17, 2021).
The 2021 final rule (86 FR 51970, September 17, 2021) inadvertently
left a critical gap in protection for right whales within the
Massachusetts Restricted Area (MRA). Observational sightings from 2018
through 2022 provide empirical evidence of the high risk of overlap
between right whales and buoy lines in this area (See Figures 2 and 3
below). The 2021 rule expanded the geographic extent of the MRA under
the Plan to mirror the area included in the 2021 Massachusetts State
Commercial Trap Gear Closure to Protect Right Whales (322 CMR 12.04(2),
hereafter referred to as MA State Waters Trap/Pot Closure), which had
extended restrictions north to the New Hampshire border (Figure 1). The
MRA, as implemented under the Plan, is in place from February 1 through
April 30 while the MA State Waters Trap/Pot Closure area is closed from
February 1 through May 15, with the option to open early on April 30 or
extend the closure in May depending on right whale sightings and
copepod abundance. The implementation of the 2021 MRA expansion
resulted in approximately 200 square miles (518 square kilometers) of
Federal waters remaining open to trap/pot fishing between State and
Federal closures. This created the ``MRA Wedge'' (Figure 1). Center for
Coastal Studies (CCS) and the Northeast Fisheries Science Center
(NEFSC) reported consistent observations of right whales within this
wedge February through April 2018-2022 (Figure 3). Aerial surveys
conducted by CCS in April 2021 and February and March of 2022 also
documented the presence of aggregated fixed fishing gear (i.e., gillnet
and trap/pot gear) in the MRA Wedge and in waters north of the MRA
(Figure 2). In January 2022, NMFS received letters and emails from
Massachusetts Division of Marine Fisheries (MA DMF), Stellwagen Bank
National Marine Sanctuary, and non-governmental organizations
expressing concerns about this gap in restricted waters and the
heightened risk of entanglement for right whales during the MRA closure
period from February through April. After reviewing available
information and considering the high risk of entanglement in this
relatively small area, NMFS prepared and issued an emergency rule
prohibiting trap/pot fishery buoy lines within the MRA Wedge for the
month of April 2022 (87 FR 11590, March 2, 2022; NMFS 2022). Though the
January 2022 letter from MA DMF requested a closure to address the
closure period in the MRA, which begins in February and remains closed
through April under the Plan, the closure was only implemented in April
due to the several months it took to prepare a new emergency rule and
Environmental Assessment to understand the potential economic and
biological impacts of the closure.
ALWTRT meetings and deliberations in November and December of 2022
culminated in a majority vote for a Plan amendment to implement new
measures to further reduce right whale entanglement mortality and
serious injury. Among those measures was an expanded MRA that would
address the entanglement risk in the MRA Wedge and waters farther
north, including Jeffreys Ledge. On December 12, 2022, MA DMF requested
that NMFS extend the MRA Wedge closure into 2023 and 2024, or until new
long-term measures are implemented. On January 4, 2023, following the
signing of the Consolidated Appropriations Act, 2023 (CAA), MA DMF
reiterated its concerns about the MRA Wedge and indicated full support
for an annual closure of the area from February through May, or as long
as the adjacent areas (i.e., Federal or State waters) remain closed. On
January 31, 2023, NMFS announced an extension of the 2022 Emergency
Rule closing the MRA Wedge to trap/pot fishing with buoy lines while
adjacent Federal waters within the MRA were similarly restricted from
February 1 through April 30 to address this gap in protections again in
2023 (88 FR 7362, February 3, 2023; NMFS 2023; see Figure 1). On August
22, 2023, MA DMF again reiterated strong support for a permanent annual
closure of the MRA Wedge from February through May due to ``a level of
entanglement risk that is troubling and begs for a permanent management
solution.'' MA DMF stated in a letter to NMFS that the ``gap in the
closure . . . created a refuge for fishers to place their gear, leading
to extraordinarily high gear densities in the Wedge Area. DMF believes
most gear in this area is infrequently hauled and largely being stored
in this location. . . .''
The MRA was first implemented in 2015, and was originally intended
to restrict trap/pot fishing from January through April due to the
recurring seasonal presence of right whales in the
[[Page 63920]]
area (79 FR 36585, June 27, 2014). Instead of a smaller closure limited
to Cape Cod Bay, the MRA's boundaries offered greater protection to
right whales given their presence in the area north of Race Point and
Outer Cape Cod. However, the MRA was amended prior to implementation to
allow fishing during January, not because whales are not present in the
area in January, but because it is a key month for the fishing industry
(79 FR 73848, December 12, 2014). Though right whales and the
associated entanglement risk are present annually in Federal waters
adjacent to Massachusetts before and after the MRA trap/pot closure,
the MRA Wedge poses an acute entanglement risk to right whales from
February through April during the MRA closure.
North Atlantic right whales are known to aggregate in Cape Cod Bay
in winter and spring to forage on copepods (Watkins and Schevill 1976,
Mayo and Marx 1990, Mayo et al. 2018). The whales begin arriving in
Cape Cod Bay and surrounding waters as early as December and typically
leave the area during the month of May after copepod abundance has
declined (Jacquet et al. 2007, Hlista et al. 2009, Pendleton et al.
2009, Plourde et al. 2019, Ganley et al. 2019). Abundance of right
whales in Cape Cod Bay during winter and spring has increased over
time, despite a declining population size, making protection of the Bay
and surrounding waters during their presence particularly important for
population recovery (Ganley et al. 2019). Past and current sightings
data indicate that April is, on average, the month of peak abundance in
the Bay (see Figure 12, Figure 13, Figure 14 in the associated EA for
this action). Ganley et al. (2019) found that sightings data do not
accurately reflect peak whale presence due to diving behavior, with
higher abundances in January through March than detectable through
simple whale counts or sightings per unit effort and that the month of
peak abundance varies annually, sometimes occurring in March or April
(Pendleton et al. 2022). Furthermore, right whale use of the Bay has
increased as spring temperatures warm up earlier in the year and
suggest the month of peak abundance may continue to occur earlier in
the year in the future due to climate change (Ganley et al. 2022).
Detections of right whales in the MRA and surrounding waters from
February through April continue to demonstrate that whales occupy and
travel through the MRA Wedge to feed in waters in and around
Massachusetts Bay (Figure 3; also see Figure 12, Figure 13, Figure 14
in the associated EA for this action). Though many right whales
aggregate within Cape Cod Bay, they are highly mobile and are also
detected visually or acoustically in and around Massachusetts Bay and
the MRA Wedge, with a notable increase from February through April
(Johnson et al. 2021). Data on right whale presence in February and
March in Massachusetts Bay and the MRA Wedge are also likely
underestimated given lower survey effort in the area north of Cape Cod
Bay and variation in whale detection during these months (Ganley et al.
2019). As the right whale's food source declines in April within Cape
Cod Bay (Hlista et al. 2009; Ganley et al. 2019, 2022), right whale
distribution accordingly shifts and increases the presence of right
whales in the MRA Wedge as they leave Cape Cod Bay, contributing to a
peak of sightings in Massachusetts Bay in April. Right whale presence
in Massachusetts Bay is likely to shift as climate change impacts the
population use of Cape Cod Bay, potentially contributing to higher
abundance in earlier months. Accordingly, it is critical that the MRA
includes the MRA Wedge within the boundaries of the existing closure
under the Plan to reduce mortalities and serious injuries from
entanglements in buoy lines (Figure 4).
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BILLING CODE 3510-22-C
Summary of Proposed Changes
This proposed rule, if adopted, would expand the boundaries of the
MRA, where the use of persistent trap/pot buoy lines are seasonally
prohibited, to include the MRA Wedge (Figure 4). The proposed rule, if
adopted, would close this area during the existing MRA closure season
under the Plan from February 1 through April 30 (86 FR 51970, September
17, 2021) to reduce acute entanglement risk. As shown above in Figures
2 and 3, empirical observations of right whales alongside fixed gear in
the MRA Wedge from February through April in the years 2018-2022, and
the high density of right whales in nearby adjacent waters, demonstrate
the urgent need for the closure. To estimate the reduction of
entanglement-related mortality and serious injury risk that would
likely result if the proposed rule was
[[Page 63925]]
implemented, we used the Large Whale Decision Support Tool (DST)
version 4.1.0, which quantitatively evaluates potential risk outcomes
for relevant management actions. The DST estimates that the proposed
closure would result in an approximately 1.9 to 2.4 percent reduction
of risk of mortality or serious injury due to entanglement. This is
equivalent to a total risk reduction of approximately 13.2 to 16.6
percent for the trap/pot fisheries in Lobster Management Area 1 (LMA 1)
adjacent to Massachusetts, where the threat of entanglement is
particularly high for right whales.
The DST version used to estimate anticipated risk reduction relies
on right whale distribution data from 2010 through September 2020 and
buoy line estimates from recent years (2015-2018 for lobster, 2010-2020
for other Federal trap/pot fisheries, and 2012-2019 for other trap/pot
fisheries in state waters), before the current boundaries of the MRA
and the MA State Waters Trap/Pot Closure were implemented. The 2021
restrictions likely pushed more gear into this area than is reflected
in the gear data that was incorporated into DST. In addition, we used
the right whale habitat density model produced by Duke University
(Version 12; Roberts et al. 2016a, Roberts et al. 2016b, Roberts et al.
2020, Roberts et al. 2021, Roberts and Halpin 2022) within the DST,
which estimates that up to five whales total are likely to be present
in this locality at any given time throughout the time frame. However,
sightings data collected during the months of February through April in
the years from 2018 through 2022 shows that there are at times more
right whales in the area than the model estimates (Figure 3). For
example, on April 28, 2021, dedicated surveys sighted 15 whales in the
Wedge Area. Accordingly, the DST provides strong supporting evidence
for the Rule, and the empirical observational evidence collected in
2018-2022 demonstrates that the proposed closure of the MRA Wedge area
will likely have greater value to right whale conservation than the DST
estimates (see section 6.2 in the associated EA for more details on
these analyses).
The economic impact of the addition of the MRA Wedge to the MRA on
the lobster and Jonah crab trap/pot fishery is estimated to be
relatively small compared to the total value of the fishery. We
estimate that the MRA Wedge closure will impact between 26-31 vessels
each month and that the annual costs, including gear transportation
costs and lost revenue, range from $339,000 to $608,000, or $1.7
million to $3 million across 5 years. For this analysis, we evaluated
two scenarios for the economic impacts on lobster vessels. We assumed
that half of the vessels would relocate their traps, and the other half
would stop fishing. For vessels that stop fishing, the cost differences
include lost revenue, gear relocation costs, and saved operating costs
from not fishing. The lower and higher range of cost estimates come
from the range of lost revenue of the relocated vessels, and a range of
gear relocation costs for all vessels. We calculated the number of
vessels impacted using the average number of vessels fishing within the
MRA Wedge for the months February, March, and April for each year from
2017 to 2021 according to Vessel Trip Report (VTR) data and adjusted
based on the average percentage of LMA 1 lobster-only vessels required
to provide VTR data in Massachusetts (41 percent). Landing values were
similarly averaged for the time period using landing pounds from VTR
data and lobster prices in Massachusetts provided in dealer reports.
For more details on the economic analyses and underlying assumptions,
please see section 6.2 in the associated EA and RIR/IRFA for this
proposed rule.
Classification
The NMFS Assistant Administrator has determined that the proposed
rule is consistent with the ALWTRP, with the rulemaking authority under
MMPA section 118(f), and with other applicable laws including the CAA,
2023 (H.R. 2617-1631--H.R. 2617-1632, Division JJ--North Atlantic Right
Whales, Title I--North Atlantic Right Whales and Regulations).
Consolidated Appropriations Act
On December 29, 2022, President Biden signed H.R. 2617, the CAA,
into law. The CAA establishes that from December 29, 2022, through
December 31, 2028, NMFS' September 17, 2021, rule amending the ALWTRP,
Taking of Marine Mammals Incidental to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction Plan Regulations, published at 86
FR 51970 (September 17, 2021), ``shall be deemed sufficient to ensure
that the continued Federal and State authorizations of the American
lobster and Jonah crab fisheries are in full compliance'' with the MMPA
and the ESA. H.R. 2617-1631--H.R. 2617-1632 (Division JJ--North
Atlantic Right Whales, Title I--North Atlantic Right Whales and
Regulations, Sec. 101(a)). The CAA requires NMFS to promulgate new
lobster and Jonah crab regulations, consistent with the MMPA and ESA,
that take effect by December 31, 2028. Id at Sec. 101(a)(2).
Notwithstanding these directions, Sec. 101(b) of the CAA provides that
NMFS may take ``any action . . . to extend or make final an emergency
rule that is in place on the date of enactment of this Act, affecting
lobster and Jonah crab.''
This proposed rule is permitted under Sec. 101(b). The ``emergency
rule'' in Sec. 101(b)'s express exception plainly refers to the 2022
MRA Wedge Rule, 87 FR 11590 (Mar. 2, 2022), because the 2022 Emergency
Rule was ``in place'' at the time of the CAA's enactment on December
29, 2022.
Although the Emergency Rule's seasonal closure was effective from
April 1, 2022 through April 30, 2022, the state of emergency
necessitating the rule continued and NMFS was authorized to extend that
rule at the time of the CAA's enactment under MMPA Sec. 118(g). The
2022 Emergency Rule closed the MRA Wedge for 30 days under MMPA Sec.
118(g)(3). After that 30-day closure, NMFS retained authority to extend
the 2022 Emergency Rule for 90 additional days under MMPA Sec.
118(g)(4), which allows an extension of an emergency rule where
``incidental mortality and serious injury of marine mammals in a
commercial fishery is continuing to have an immediate and significant
adverse impact on a stock or species.'' That was the case at the time
of the CAA's enactment because, after the 2022 Emergency Rule was no
longer in effect, right whales continued to occupy and travel through
the MRA Wedge annually during February through April, while vertical-
line fishermen also continued to fish and stage gear there at great
risk of causing incidental mortality or serious injury by entanglement.
The MMPA does not require that emergency rule extensions are
coterminous in time with the original emergency rule.
Any other reading of the statute would deprive the Sec. 101(b)
exception of any meaning. The 2022 Emergency Rule is the only emergency
rulemaking implemented in the past decade under the MMPA, ESA, or other
relevant statutes affecting lobster and Jonah crab; there is no other
``emergency rule'' to which the exception could have referred.
Moreover, Congress would not have reasonably expected NMFS to issue
another emergency rule when Congress was contemplating and enacting the
statute, or in the short time between when Congress passed and the
President signed the CAA. For example, no other emergency rule related
to right whale and the lobster fishery was under consideration in and
around that time. Accordingly, the 2022 Emergency Rule
[[Page 63926]]
was ``in place'' within the meaning of the CAA at the time of its
enactment, even though the seasonal closure required by that rule was
no longer in effect.
Based on this understanding, NMFS ``extend[ed]'' the 2022 Emergency
Rule, CAA Sec. 101(b), the following year on February 1, 2023, by
closing the MRA Wedge from February 2023 through April 2023 to match
the broader closure of Federal waters in the MRA. This proposed rule
seeks to ``make final,'' CAA Sec. 101(b), the 2022 Emergency Rule by
incorporating the MRA Wedge into the larger MRA boundaries. The
proposed rule is based on the scientific evidence demonstrating the
annual recurrence of high entanglement risk in the MRA Wedge--i.e.,
direct observations of right whales and extensive fishing gear
occupying the MRA Wedge annually from February through April, and the
supporting DST analysis. The proposed rule would therefore ``make
final'' the wedge closure under the Plan, in accordance with the MMPA
and CAA.
National Environmental Policy Act
NMFS prepared a draft EA for this proposed rule that discusses the
potential impacts of proposed changes to the ALWTRP on the environment.
In addition to the status quo (Alternative 1), two alternatives are
analyzed: Alternative 2 (preferred and the basis of this proposed rule)
and Alternative 3. Alternative 1 (No Action) would maintain the status
quo as implemented in 2021. Alternative 2 (Preferred Alternative) would
add the MRA Wedge, approximately 200 square miles (518 square
kilometers) of Federal waters adjacent to the existing MRA, to the MRA
during the current closure period of February 1 through April 30.
Alternative 3 would add approximately 1,297 square miles (3,359 square
kilometers) to the MRA and extend the northern MRA boundaries up to the
New Hampshire border during the same time period.
Alternative 2 is estimated to reduce risk of mortality or serious
injury from entanglement in trap/pot gear in the Northeast by
approximately 1.9 to 2.4 percent. Alternative 3 is estimated to reduce
risk by 3.3 to 5.5 percent. The difference in impact between the two
alternatives is even greater when considering local risk in the area in
LMA 1 adjacent to Massachusetts, an area with particularly high
entanglement risk during the MRA closure months (13.2 to 22.3 percent
risk reduction under Alternative 2 compared to 14.9 to 37.4 percent
under Alternative 3). Overall, the economic impacts of the Alternative
2 result in an estimated total annual cost (including lost revenue) of
$339,000 to $608,000 with approximately 26 to 31 affected vessels, or
$1.7 million to $3 million across 5 years. Alternative 3 is estimated
to impact 53 to 66 vessels for an estimated annual cost (including lost
revenue) of $898,000 to $1,453,000 and an estimated total 5-year cost
of $4.5 million to $7.3 million. The social and economic impacts on the
human community would decrease year by year as fishermen adapt to the
proposed restricted area. A copy of the EA is available in the docket
or from NMFS (see ADDRESSES).
Executive Order 12866--Regulatory Planning and Review
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866. NMFS has prepared a regulatory
impact review.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to assess the economic impacts of their proposed regulations
on small entities. The objective of the RFA is to consider the impacts
of a rulemaking on small entities, and the capacity of those affected
by regulations to bear the direct and indirect costs of regulation. We
prepared an initial regulatory flexibility analysis (IRFA) in support
of this action, as required by section 603 of the RFA. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the legal basis for this action are contained at the
beginning of this section in the preamble and in the SUMMARY section of
the preamble. A copy of this analysis is available in the docket or
from NMFS (see ADDRESSES), and a summary follows.
The IRFA analysis estimates that 1,273 distinct entities had at
least one LMA 1 Federal lobster permit in 2021, and 39 distinct
entities were in other trap/pot fisheries. All of them are small
entities with annual landings value below $11 million. While
considering the compliance costs for the small entities, it is worth
noting that the vast majority of the regulated entities are located far
away from the MRA Wedge area so that it would not be economically
feasible to travel to this area to fish. Therefore, this proposed rule
would directly affect relatively few entities that actually fished with
vertical lines in the proposed Wedge Area within the past five seasons
(2017-2021). Alternative 2 would affect 26 to 31 entities, with the
estimated annual compliance costs ranging from $339,000 to $608,000.
The estimated cost for each entity ranges from $9,500 to $19,100.
Alternative 3 would affect 53 to 66 entities, and the estimated annual
compliance costs range from $898,000 to $1,453,000. The estimated cost
for each entity ranges from $9,900 to $20,500.
Paperwork Reduction Act
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
Endangered Species Act
NMFS completed an ESA section 7 consultation on the implementation
of the Plan on July 15, 1997, and concluded that the action was not
likely to adversely affect any ESA-listed species under NMFS
jurisdiction. Five subsequent consultations were conducted in 2004,
2008, 2014, 2015, and 2021 when NMFS amended the Plan. This proposed
rule falls within the scope of the analysis conducted in the informal
Endangered Species Act section 7 consultation on the implementation of
the Atlantic Large Whale Take Reduction Plan (May 25, 2021), and a
separate consultation is not required for this action. NMFS, as both
the action agency and the consulting agency, reviewed the changes and
determined that the measures as revised through this rulemaking would
not affect ESA-listed species under NMFS jurisdiction in a manner that
had not been previously considered.
This proposed rule is a separate action independent from the 2021
Endangered Species Act section 7 Consultation on the: (a) Authorization
of the American Lobster, Atlantic Bluefish, Atlantic Deep-Sea Red Crab,
Mackerel/Squid/Butterfish, Monkfish, Northeast Multispecies, Northeast
Skate Complex, Spiny Dogfish, Summer Flounder/Scup/Black Sea Bass, and
Jonah Crab Fisheries and (b) Implementation of the New England Fishery
Management Council's Omnibus Essential Fish Habitat Amendment 2 (2021
BiOp). The proposed rule was not developed during the fisheries
consultation process that culminated in the 2021 BiOp, and the proposed
rule satisfies the ESA and MMPA requirements through a consultation
that was entirely distinct from the 2021 BiOp. The proposed rule is not
associated with the 2021 BiOp and was not analyzed under the 2021 BiOp,
nor does the 2021 BiOp provide ESA coverage for the proposed rule.
[[Page 63927]]
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List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Endangered Species, Fisheries, Marine mammals, Reporting
and recordkeeping requirements.
Dated: September 13, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 229 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. Amend Sec. 229.32 by revising paragraph (c)(3)(i) to read as
follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(c) * * *
(3) * * *
[[Page 63928]]
(i) Area. The Massachusetts Restricted Area is bounded landward by
the Massachusetts shoreline, from points MRA1 through MRA3 bounded
seaward by the designated Massachusetts State waters boundary, and then
bounded by a rhumb line connecting points MRA3 through MRA10 in order
as detailed in table 11 to paragraph (c)(3)(i);
Table 11 to Paragraph (c)(3)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
MRA1............................ 42[deg]52.32' 70[deg]48.98'
MRA2............................ 42[deg]52.58' 70[deg]43.94'
MRA3............................ 42[deg]39.77' 70[deg]30'
MRA4............................ 42[deg]30' 70[deg]30'
MRA5............................ 42[deg]30' 69[deg]45'
MRA6............................ 41[deg]56.5' 69[deg]45'
MRA7............................ 41[deg]21.5' 69[deg]16'
MRA8............................ 41[deg]15.3' 69[deg]57.9'
MRA9............................ 41[deg]20.3' 70[deg]00'
MRA10........................... 41[deg]40.2' 70[deg]00'
------------------------------------------------------------------------
* * * * *
[FR Doc. 2023-20147 Filed 9-15-23; 8:45 am]
BILLING CODE 3510-22-P