Rule2023-02185
Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations
Primary source
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Published
February 3, 2023
Effective
February 1, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is extending a temporary emergency rule to prohibit trap/ pot fishery buoy lines between federal and state waters within the Massachusetts Restricted Area (MRA) from February through April 2023 to reduce the incidental mortality and serious injury of North Atlantic right whales (Eubalaena glacialis) in commercial lobster and Jonah crab trap/pot fisheries. This emergency rule extension is necessary to reduce the risk of right whale mortality and serious injury caused by buoy lines in an area with a high co-occurrence of whales and buoy lines.
Full Text
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<title>Federal Register, Volume 88 Issue 23 (Friday, February 3, 2023)</title>
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[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Rules and Regulations]
[Pages 7362-7369]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02185]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. FR-230130-0030]
RIN 0648-BM05
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: Temporary rule; emergency final rule.
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SUMMARY: NMFS is extending a temporary emergency rule to prohibit trap/
pot fishery buoy lines between federal and state waters within the
Massachusetts Restricted Area (MRA) from February through April 2023 to
reduce the incidental mortality and serious injury of North Atlantic
right whales (Eubalaena glacialis) in commercial lobster and Jonah crab
trap/pot fisheries. This emergency rule extension is necessary to
reduce the risk of right whale mortality and serious injury caused by
buoy lines in an area with a high co-occurrence of whales and buoy
lines.
DATES: Effective February 1, 2023 through April 30, 2023.
ADDRESSES: Copies of the documents associated with this emergency rule
are available at <a href="https://www.fisheries.noaa.gov/alwtrp">https://www.fisheries.noaa.gov/alwtrp</a> or by emailing
Marisa Trego at <a href="/cdn-cgi/l/email-protection#95f8f4e7fce6f4bbe1e7f0f2fad5fbfaf4f4bbf2fae3"><span class="__cf_email__" data-cfemail="432e22312a30226d373126242c032d2c22226d242c35">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Marisa Trego, 978-282-8484,
<a href="/cdn-cgi/l/email-protection#d3beb2a1baa0b2fda7a1b6b4bc93bdbcb2b2fdb4bca5"><span class="__cf_email__" data-cfemail="e38e82918a9082cd979186848ca38d8c8282cd848c95">[email protected]</span></a>, Colleen Coogan, 978 281-9181,
<a href="/cdn-cgi/l/email-protection#2f4c4043434a4a41014c4040484e416f41404e4e01484059"><span class="__cf_email__" data-cfemail="02616d6e6e67676c2c616d6d65636c426c6d63632c656d74">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
Background
Justification for Emergency Action
Emergency Measures
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 2019 at 368 whales (95 percent confidence interval: 356-378) with a
strong male bias (Pace et al. 2017, Pace 2021). Data from 2020 and 2021
suggest the decline has continued and that fewer than 350 individuals
remain (Pettis et al. 2022). The steep population decline is a result
of high levels of human-caused mortality caused by entanglement in
fishing gear and vessel strikes in both the U.S. and Canada. An Unusual
Mortality Event was declared for the population in 2017, as a result of
high rates of vessel strikes and entanglement in fishing gear. As of
January 11, 2023, the Event includes 35 detected mortalities (17 in
2017, 3 in 2018, 10 in 2019, 2 in 2020, 2 in 2021, 0 in 2022, and,
tentatively, 1 in 2023). In addition, 21 serious injuries were
documented (2 in 2017, 5 in 2018, 1 in 2019, 4 in 2020, 5 in 2021, 4 in
2022, and, tentatively, 1 in 2023). Lastly, 37 morbidity (or sublethal
injury or illness) cases were documented (12 in 2017, 10 in 2018, 7 in
2019, 5 in 2020, 1 in 2021, and 2 in 2022); see: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event</a>). Population models
estimate that 64 percent of all mortalities are not observed and not
accounted for in the right whale observed incident data (Pace 2021,
Pace et al. 2021).
The North Atlantic right whale is listed as an endangered species
under the Endangered Species Act (ESA), and considered 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. This is defined as the maximum number of animals that can
be removed annually, while allowing a marine mammal stock to reach or
maintain its optimal sustainable population level. PBR for the North
Atlantic right whale population is 0.7 whales per year in the most
recently published stock assessment report (Hayes et al. 2022). Between
2010 and 2021, there has not been one year where observed mortality and
serious injury of right whales fell below a PBR of 0.7. With the total
estimated mortality well above this number, additional measures are
urgently needed to reduce the impact of U.S. Atlantic fisheries on
right whales.
The Atlantic Large Whale Take Reduction Plan (``Plan'' or ALWTRP)
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
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
participating in fisheries managed under 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 approximately 22
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 confirmed in U.S.
fishing gear or first seen in U.S. waters with an entanglement 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
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Trap/Pot Management Area (Northeast Region). The recommended measures
intended to reduce risk of mortality and serious injury to right whales
incidentally entangled in buoy lines in those fisheries by at least 60
percent. At that time, this was the best estimate of the minimum amount
of risk necessary to get annual mortality and serious injury rates
below PBR based on observed entanglements. NMFS published a Final
Environmental Impact Statement (FEIS) on July 2, 2021 (86 FR 35288),
with a 30-day comment period. The Record of Decision was signed on
August 30, 2021, and the final rule was published on September 17, 2021
(86 FR 51970). The new rule was estimated to meet the minimum 60-
percent reduction in risk recommended by the ALWTRT in 2019. Further
detail on right whale population estimates, the stock's decline,
changes in distribution and reproductive rates, as well as
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 2021b) and the preamble to the 2021 final rule (86 FR 51970;
September 17, 2021).
The 2021 final rule (86 FR 51970, September 17, 2021) left a
critical gap in protection of right whales within the MRA, as suggested
by sighting data that indicate a high risk of overlap between right
whales and buoy lines. The 2021 expansion of the geographic extent of
the MRA, to include Massachusetts state waters north to the New
Hampshire border (Figure 1) mirrored the Massachusetts 2021
modification of the state water closure (322 CMR 12.04(2)). The
implementation of the MRA Expansion, allowed approximately 200 mi\2\
(518 km\2\) of federal waters to remain open to trap/pot fishing
between state and federal closures. This created the ``MRA Wedge''
(Figure 1). Center for Coastal Studies (CCS) survey data from 2021 and
2022 indicate that trap/pot gear was concentrated in the MRA Wedge
during the closure period (Figure 2). Additionally, CCS and the
Northeast Fisheries Science Center (NEFSC) observed right whales within
this wedge alongside the presence of aggregated fishing gear during
aerial surveys in April 2021, and March and April of 2022. In early
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. After reviewing available information and due to the high risk
of entanglement in this relatively small area, NMFS issued an emergency
rule prohibiting trap/pot fishery buoy lines between federal and state
waters within the MRA for the month of April in 2022 (87 FR 11590;
March 2, 2022).
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, MA DMF reiterated their 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. Further, on January 10, 2023,
MA DMF notified the fishing community of our intent to implement an
emergency closure of the MRA Wedge imminently. The critical gap in
protection for right whales persists seasonally for the period of
February through April of this year; thus, this rule is an extension of
the 2022 emergency rule.
Justification for Emergency Action
At the time of the 2022 emergency action, NMFS had already begun
the rulemaking process for a second round of modifications to the
ALWTRP, because new population information indicated a need for further
risk reduction to reduce mortality and serious injury of right whales
below PBR in U.S. commercial fisheries. Concurrently, NMFS faced
litigation on the 2021 Batched Fisheries Biological Opinion issued
under the ESA and the 2021 amendment to the ALWTRP issued under the
MMPA (86 FR 51970; September 17, 2021). On July 8, 2022, the District
Court for the District of Columbia held that the 2021 final ALWTRP rule
violated the MMPA for failing to include measures expected to reduce
mortality and serious injury to below the PBR level within six months
of implementation. (Center for Biological Diversity, et al., v.
Raimondo, et al., (Civ. No. 18-112 (D.D.C.)). As a result, on September
9, 2022, NMFS announced it was scoping in advance of additional
rulemaking (87 FR 55405) to meet its MMPA mandate as described by the
Court's decision. Then, on November 17, 2022, the Court ordered NMFS to
promulgate a new MMPA compliant ALWTRP rule by December 9, 2024.
(Center for Biological Diversity, et al., v. Raimondo, et al., (Civ.
No. 18-112 (D.D.C.)).
When the 2022 emergency rule was published, NMFS anticipated that
the upcoming modifications to the ALWTRP would address the risk
associated with the lack of seasonal restrictions in the MRA Wedge.
However, in light of the Court's decisions, an ALWTRP rule addressing
the MRA Wedge area was not feasible by February 2023, given that the
Court instructed NMFS to promulgate the ALWTRP amendment with measures
necessary to meet the PBR level within 6 months of implementation and
the ALWTRT had not completed deliberations on recommended measures
until December 2, 2022. Accordingly, the risk associated with a lack of
seasonal restrictions in the MRA Wedge could not be feasibly addressed
by an ALWTRP amendment in time to mitigate an immediate and significant
adverse impact to right whales in the MRA Wedge, while the MRA is
closed in 2023.
On December 29, 2022, President Biden signed H.R. 2617, the
Consolidated Appropriations Act, 2023 (``Consolidated Appropriations
Act'') into law. The Consolidated Appropriations Act 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, 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 Consolidated
Appropriations Act disrupts the Court's 2024 deadline and requires that
NMFS promulgate new regulations for the American lobster and Jonah crab
fisheries, consistent with the MMPA and ESA, to take effect by December
31, 2028. Id.
This emergency rule, however, is permitted pursuant to an exception
at Sec. 101(b), stating that Sec. 101(a) does not apply to ``an
existing emergency rule, or any action taken 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 explicit exception in the
Consolidated Appropriations Act can only refer to the 2022 MRA Wedge
Rule, because that is the only emergency rulemaking implemented under
the MMPA, ESA, or other relevant statutes, affecting lobster and Jonah
crab, to occur in the past decade. The exception at Sec. 101(b) is a
specific reference to the 2022 emergency
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rule closing the MRA Wedge. If the exception did not cover an extension
or finalization of the MRA Wedge Rule, the provision would have no
purpose. Moreover, the emergency rulemaking provisions of MMPA Section
118(g) allow for extensions of existing emergency rules when conditions
warrant, and the statutory language does not require an extension to
follow immediately upon the expiration of the original emergency
action. Thus, the continued existence of the emergency, as opposed to
the operability of the emergency rule, is what matters for an extension
of an emergency rule. Here, the 2022 30-day emergency rule was not in
effect longer than 270 days (the statute's temporal limit), but the
same conditions exist this year to warrant an extension. Section Sec.
101(b) explains that NMFS may take any action, including this action,
to extend the MRA Wedge closure. NMFS is extending the 2022 emergency
rule into 2023 and also extending the duration of closure to February
through April to match the broader closure of Federal waters in the MRA
that left a spatial gap in protection between State and Federal waters
and thereby addressing the emergency Congress intended that NMFS
address during the 2023 fishing season. Therefore, this extension of
the 2022 emergency rule into 2023 is justified, in part, as a
consequence of changing circumstances following the 2022 emergency rule
which put in place ``emergency measures in an area of anticipated acute
risk of entanglement to the population while long-term measures are
being developed'' (87 FR 11591-92).
This extension of the 2022 emergency rule into 2023 is also
justified based on the scientific evidence regarding right whale and
gear locations. North Atlantic right whales are known to aggregate in
Cape Cod Bay in winter and spring to forage on copepods (Calanus spp.).
As this food source declines, right whale distribution accordingly
shifts and increases the presence of right whales in the MRA Wedge as
they leave the Bay. Federal waters reopen to trap/pot fishing in May,
increasing the area available to fishermen and reducing the likelihood
of high gear density from fishermen ``storing'' their gear in the MRA
Wedge. Aerial surveys from 2021 and 2022 capturing gear sightings on
specific days when surrounding waters of the MRA are closed to buoy
lines, demonstrate the high risk of entanglement that right whales face
while in or traversing the waters of the MRA Wedge (Figure 2).
Additionally, sightings of right whales throughout the spring in the
MRA Wedge and surrounding waters continue to demonstrate that whales
are in the MRA Wedge or likely traveling through this gap in the MRA
closure to feed in waters in and around Massachusetts Bay (Figure 3).
Without restrictions in place in the MRA Wedge, gear may increase in
this area as fishermen pushed out of surrounding waters move gear into
this small open area and continue to actively fish. Gear may also
increase if fishermen start bringing gear into the MRA Wedge
anticipating the May 1 opening of Federal waters. The staging of gear
in anticipation of Federal waters opening may be especially likely in
April when whale sightings are still high. Given the high likelihood
that endangered right whales are present throughout this area and in
adjoining waters during February through April, the MRA Wedge poses a
particularly high risk of mortality or serious injury from entanglement
in fishing gear. Accordingly, it is critical that this buoy line
closure address the gap between State and Federal waters within the MRA
Wedge during the MRA closure in Federal waters in 2023 to prevent the
likelihood of an immediate and significant adverse impact on right
whales in the MRA Wedge.
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
Emergency Measures
This emergency rule implements a fishery closure in the waters
nearly circumscribed by federal and state waters of the MRA, where the
use of persistent trap/pot buoy lines is prohibited seasonally (Figure
1). This closure period aligns with the existing MRA closure season for
Federal waters, as of February 1 and continues through April 30 (322
CMR 12.04(2)). Risk reduction and change in right whale co-occurrence
were calculated for this emergency measure using the Decision Support
Tool (DST) version 4.1.0, which is an updated version of the model that
was used in the 2021 FEIS (NMFS 2021b). The area restricted by this
emergency rule includes approximately 200 mi\2\ (518 km\2\),
representing about 1.9 to 2.4 percent reduction of the total trap/pot
entanglement risk in the Northeast. This amounts to a 13.2 to 16.6
percent reduction of the total risk of trap/pot fisheries in LMA 1
adjacent to Massachusetts where the threat of entanglement is
particularly high for right whales.
The DST used to estimate risk reduction of the emergency closure
relies on whale distribution data from 2010 through September 2020 and
line estimates from recent years before the new boundaries of the MRA
and the new Massachusetts State Water closure were implemented (2015-
2018 for lobster, 2010-2020 for other federal trap/pot fisheries, and
2012-2019 for other trap/pot fisheries in state waters). These data
likely underestimate the risk reduction according to 2018-2022 right
whale sightings (Figure 3). The 2021 restrictions may have also pushed
more gear into this area. Furthermore, the right whale habitat density
model produced by Duke University and used within the DST estimates
that up to 5 whales total are likely to be present in this locality
throughout the time frame, but sighting data collected during February-
April 2018-2022 indicate that in 2022 there may be more right whales in
the area than the model predicts (Figure 3). Given the empirical
evidence collected in 2018-2022, it is likely that the risk reduction
estimated in this small area may have even greater value to the right
whale population than the DST estimates.
The economic impact of a February-April closure to the lobster and
Jonah crab trap/pot fishery is estimated to be small relative to the
total value of the fishery. It is estimated to impact between 26-31
vessels in a given month and the total costs including gear
transportation costs and lost revenue range from $338,804-$608,346. For
this analysis, we evaluated two scenarios for the economic impacts on
lobster vessels. We assume half of the vessels would
[[Page 7368]]
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 end of cost estimates come from the range of lost
revenue of the relocated vessels, and a range of gear relocation costs
for all vessels. The number of vessels impacted was calculated from the
average number of vessels fishing within the MRA Wedge in a given month
from 2017 to 2021 according to Vessel Trip Report (VTR) data, and was
adjusted based on the average percentage of Lobster Management Area 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
from dealer reports.
Classification
The NMFS Assistant Administrator has determined that this emergency
rule is consistent with the ALWTRP, with the emergency rulemaking
authority under MMPA section 118(g), and with other applicable laws
including the Consolidated Appropriations Act, 2023. H.R. 2617-1631-
H.R. 2617-1632 (Division JJ--North Atlantic Right Whales, Title I--
North Atlantic Right Whales and Regulations).
The Office of Management and Budget has waived review of this
emergency rule under Executive Order 12866. NMFS has prepared a
regulatory impact review.
This emergency final rule is exempt from the procedures of the
Regulatory Flexibility Act because the rule will not include prior
notice or an opportunity for public comment.
This emergency final rule contains no information collection
requirements under the Paperwork Reduction Act of 1995.
This emergency rule falls within the scope of the analysis
conducted in the informal ESA consultation, Endangered Species Act
section 7 consultation on the implementation of the Atlantic Large
Whale Take Reduction Plan (May 25, 2021), a separate consultation is
not required for this action. The emergency rule modifies 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 emergency rule was not developed during the fisheries consultation
process that culminated in the 2021 BiOp and it satisfies its ESA and
MMPA requirements through consultation that was entirely distinct from
the 2021 BiOp. The emergency rule is not associated with the 2021 BiOp,
and was not analyzed under the 2021 BiOp, nor does the 2021 BiOp
provide ESA or MMPA coverage for the emergency rule.
Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3) the Assistant
Administrator for Fisheries finds good cause to waive notice and public
comment, and the 30 day delay in rule effectiveness. Right whale
distribution data identify risk in unrestricted waters encapsulated on
three sides by the expanded MRA while seasonal restrictions are in
place from February through April in surrounding waters, as noted in
the Justification for Emergency Action section above. While publication
of this rule will implement this closure immediately, the fishing
community was notified on January 10, 2023, of the anticipated closure
of the MRA Wedge by the Massachusetts Division of Marine Fisheries,
which fully supports this closure. This notification provides time for
fishermen to comply with the emergency restrictions by removing or
relocating their gear from the MRA Wedge before the seasonal closure is
effective.
In summary, this emergency action is necessary to prevent
entanglements of right whales in an area of elevated risk in
Massachusetts Bay in February through April of 2023, while seasonal
restrictions are in place in nearby Federal waters. Providing prior
notice through proposed rulemaking and public comment period in the
normal rulemaking process, or providing a delay in effective date,
would delay implementation of time sensitive emergency measures
necessary to prevent incidental mortality and serious injury of right
whales that would likely have an immediate and significant adverse
impact on the species. Providing notice and comment or a delay in
effective date would prevent NMFS from meeting its obligations to
protect right whales from entanglements in the MRA Wedge, in
contravention of the MMPA and ESA, because such a delay would inhibit
NMFS' ability to stave off an imminent risk to right whales. Similarly,
providing notice and comment or a delay in effective date would harm
the public by preventing NMFS' from immediately addressing this
emergency. The emergency will not be adequately addressed if the action
is delayed. For the reasons outlined above, NMFS finds it impracticable
and contrary to the public interest to provide prior notice and public
comment on these emergency measures. For the same reasons, NMFS finds
good cause to waive the delay in the effective date of this rule.
References
Hayes, S.H., E. Josephson, K. Maze-Foley, P.E. Rosel, and J.
Wallace. 2022. US Atlantic and Gulf of Mexico Marine Mammal Stock
Assessments 2021. Northeast Fisheries Science Center, Woods Hole,
MA.
NMFS. 2019. Guidance on the Application of NEPA for Emergency
Response Actions. Memo to National Environmental Policy Act (NEPA)
Practitioners. September 23, 2019.
NMFS. 2021b. Final Environmental Impact Statement, Regulatory Impact
Review, and Initial Regulatory Flexibility Analysis for Amending the
Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule. NOAA,
National Marine Fisheries Service, Greater Atlantic Regional
Fisheries Office.
NMFS. 2022. Environmental Assessment, Finding of No Significance,
and Regulatory Impact Review for the 2022 Emergency Final Rule to
Reduce Right Whale Interactions with Lobster and Jonah Crab Trap/Pot
Gear. NOAA, National Marine Fisheries Service, Greater Atlantic
Regional Fisheries Office.
Pace, R.M., P.J. Corkeron, and S.D. Kraus. 2017. State-space mark-
recapture estimates reveal a recent decline in abundance of North
Atlantic right whales. Ecology and Evolution 7:8730-8741.
Pace, R.M. 2021. Revisions and Further Evaluations of the Right
Whale Abundance Model: Improvements for Hypothesis Testing. NOAA
Technical Memorandum NMFS-NE-269. Northeast Fisheries Science
Center, Woods Hole, MA.
Pace, R.M., R. Williams, S.D. Kraus, A.R. Knowlton, and H.M. Pettis.
2021. Cryptic mortality of North Atlantic right whales. Conservation
Science and Practice 2021:e346.
Pettis, H.M., R.M. Pace, and P.K. Hamilton. 2022. North Atlantic
Right Whale Consortium 2021 Annual Report Card. Report to the North
Atlantic Right Whale Consortium.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Endangered Species, Fisheries, Marine mammals, Reporting
and recordkeeping requirements.
[[Page 7369]]
Dated: January 30, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
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 adding paragraph (c)(3)(iv) to read as
follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(c) * * *
(3) * * *
(iv) Massachusetts Restricted Area Emergency Extension. During the
period from February 1, 2023 through April 30, 2023, the Massachusetts
Restricted Area defined in paragraph (c)(3)(i) of this section is
extended from the Massachusetts state waters boundary at MRAW1 to MRAW2
(also MRA3 in Table 11 to paragraph (c)(3)(i)), then it is bounded by a
rhumb line connecting points MRAW2 to MRAW3 (MRA4), and then bounded by
a rhumb line connecting points MRAW3 through MRAW4 (MRA5) back to
MRAW1, in the order detailed in Table 11a to paragraph (c)(3)(iv); From
February 1, 2023 through April 30, 2023, it is prohibited to fish with,
set, or possess trap/pot gear in the area in this paragraph (c)(3)(iv)
of this section unless it is fished without buoy lines or with buoy
lines that are stored on the bottom until remotely released for
hauling, or buoy lines that are stowed in accordance with Sec. 229.2.
Authorizations for fishing without buoy lines must be obtained if such
fishing would not be in accordance with surface marking requirements of
Sec. Sec. 697.21 and 648.84 of this title or other applicable fishery
management regulations. The minimum number of trap/trawl gear
configuration requirements specified in paragraph (c)(2)(iv) of this
section remain in effect unless an exemption to those requirements is
authorized.
Table 11a to (c)(3)(iv)
------------------------------------------------------------------------
Point Lat Long
------------------------------------------------------------------------
MRAW1........................................... 42[deg]39. 70[deg]30'
77'
MRAW2 (MRA3).................................... 42[deg]12' 70[deg]38.
69'
MRAW3 (MRA4).................................... 42[deg]12' 70[deg]30'
MRAW4 (MRA5).................................... 42[deg]30' 70[deg]30'
MRAW1........................................... 42[deg]39. 70[deg]30'
77'
------------------------------------------------------------------------
* * * * *
[FR Doc. 2023-02185 Filed 2-1-23; 8:45 am]
BILLING CODE 3510-22-P
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