Rule2021-24510
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 10, 2021
Effective
November 10, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 215 (Wednesday, November 10, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="/cdn-cgi/l/email-protection#2d6042445f4c0366484141546d43424c4c034a425b"><span class="__cf_email__" data-cfemail="d994b6b0abb8f792bcb5b5a099b7b6b8b8f7beb6af">[email protected]</span></a>.
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 (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-mammal-protection/atlantic-large-whale-take-reduction-plan">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-mammal-protection/atlantic-large-whale-take-reduction-plan</a>).
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
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1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 648.81 [Amended]
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2. In Sec. 648.81, remove paragraph (a)(6).
[FR Doc. 2021-24510 Filed 11-9-21; 8:45 am]
BILLING CODE 3510-22-P
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