Rule2024-02438
Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations
Primary source
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Published
February 7, 2024
Effective
March 8, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is amending the Atlantic Large Whale Take Reduction Plan (Plan) to expand the boundaries of the seasonal Massachusetts Restricted Area (MRA) to include the wedge between State and Federal waters known as the Massachusetts Restricted Area Wedge (MRA Wedge). The MRA Wedge was seasonally closed to trap/pot fishing gear by emergency rulemaking in 2022 and 2023 to prevent the immediate risk to the North Atlantic right whale (Eubalaena glacialis, right whale) of mortality and serious injury caused by entanglement in fixed-gear buoy lines. Substantial observational evidence has documented the consistent presence of right whales within the MRA Wedge from February through April and aerial surveys have similarly documented the presence of aggregated fixed gear in the MRA Wedge during this same time period. Due to the co-occurrence of whales and buoy lines, both in high densities in this area during the specified times of year, this entanglement risk is expected to recur annually. This action will address this gap in protection between seasonally closed State and Federal waters 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. There is a specific carve out for this rule in the Consolidated Appropriations Act, 2023 (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 26 (Wednesday, February 7, 2024)</title>
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[Federal Register Volume 89, Number 26 (Wednesday, February 7, 2024)]
[Rules and Regulations]
[Pages 8333-8349]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02438]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 240201-0032]
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: Final rule.
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SUMMARY: NMFS is amending the Atlantic Large Whale Take Reduction Plan
(Plan) to expand the boundaries of the seasonal Massachusetts
Restricted Area (MRA) to include the wedge between State and Federal
waters known as the Massachusetts Restricted Area Wedge (MRA Wedge).
The MRA Wedge was seasonally closed to trap/pot fishing gear by
emergency rulemaking in 2022 and 2023 to prevent the immediate risk to
the North Atlantic right whale (Eubalaena glacialis, right whale) of
mortality and serious injury caused by entanglement in fixed-gear buoy
lines. Substantial observational evidence has documented the consistent
presence of right whales within the MRA Wedge from February through
April and aerial surveys have similarly documented the presence of
aggregated fixed gear in the MRA Wedge during this same time period.
Due to the co-occurrence of whales and buoy lines, both in high
densities in this area during the specified times of year, this
entanglement risk is expected to recur annually. This action will
address this gap in protection between seasonally closed State and
Federal waters 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. There
is a specific carve out for this rule in the Consolidated
Appropriations Act, 2023 (CAA).
DATES: This rule is effective March 8, 2024.
ADDRESSES: Copies of this action, including the Final Environmental
Assessment (EA) and the Regulatory Impact Review/Final Regulatory
Flexibility Analysis (RIR/FRFA) prepared in support of this action, are
available via the internet at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> or by
contacting Jennifer Goebel (see FOR FURTHER INFORMATION CONTACT below).
Several of the background documents for the Plan and the take
reduction planning process can also be downloaded from the Plan website
(<a href="https://www.fisheries.noaa.gov/ALWTRP">https://www.fisheries.noaa.gov/ALWTRP</a>). Information on the analytical
tools used to support the development and analysis of the final
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,
<a href="/cdn-cgi/l/email-protection#751f101b1b1c1310075b121a10171019351b1a14145b121a03"><span class="__cf_email__" data-cfemail="ea808f8484838c8f98c48d858f888f86aa84858b8bc48d859c">[email protected]</span></a>, Colleen Coogan, 978-281-9181,
<a href="/cdn-cgi/l/email-protection#d2b1bdbebeb7b7bcfcb1bdbdb5b3bc92bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="7f1c1013131a1a11511c1010181e113f11101e1e51181009">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The right whale population has been in decline since 2010, with the
most recent published estimate of right whale population size in 2022
at 356 whales (95 percent confidence interval: 346-363) (Linden 2023)
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 United States 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
January 18, 2024, 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, 35 serious injuries were documented (6 in 2017, 6 in 2018,
3 in 2019, 6 in 2020,
[[Page 8334]]
5 in 2021, 4 in 2022, 4 in 2023, and 1 in 2024). Lastly, 51 morbidity
(or sublethal injury or illness) cases were documented (13 in 2017, 12
in 2018, 6 in 2019, 6 in 2020, 2 in 2021, 6 in 2022, and 6 in 2023).
See <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event</a>. Documented
mortalities and serious injuries represent a minimum; in some years
population models estimate up to 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 2024, there has not been a
single year where observed mortality and serious injury of right whales
was below PBR. Moreover, total estimated mortality has been higher than
observed mortality (Hayes et al. 2023, Linden 2023, Pace et al. 2021).
The Plan was implemented in 1997 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 for which at
least one of the following is demonstrated: (1) the level of direct
human-caused mortality exceeds the PBR level; (2) based on the best
available scientific information, the stock is declining and is likely
to be listed as a threatened species under the ESA within the
foreseeable future; or (3) it 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)). The North Atlantic right whale is a strategic stock
because the human-caused mortality exceeds the PBR level and because it
is listed as endangered under the Endangered Species Act. 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
representatives of the following: 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 on
the Atlantic Large Whale Take Reduction Team.
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The Atlantic Large Whale Take Reduction Team (Team) has 59 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
rule (62 FR 16519, April 7, 1997), interim final rule (62 FR 39157,
July 22, 1997), and final rule (64 FR 7529, February 16, 1999)
implementing the initial plan. The Team met and recommended
modifications to the Plan, implemented by NMFS through rulemaking,
several times since 1997 in an ongoing effort to meet the MMPA take
reduction goals.
The most recent modification to the Plan was implemented by a final
rule published on September 17, 2021 (86 FR 51970). Mortalities and
serious injuries of right whales continue at levels exceeding the right
whale's PBR. Additional data on right whale population estimates,
including cryptic (unobserved) mortality (Linden 2023, Pace et al.
2021, Pace et al. 2017), 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 Final Environmental Impact Statement
(NMFS 2021a) and the preamble to the 2021 rule (86 FR 51970, September
17, 2021).
The 2021 rule inadvertently left a critical gap in protection for
right whales in waters adjacent to the MRA. Observational sightings
from 2018 through 2023 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 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 left open approximately 200 square miles (518 square
kilometers) of Federal waters, called the MRA Wedge, nearly enclosed by
State and Federal closures. In addition to gear normally fished in the
MRA Wedge (figure 1) during these months, the State water closure
caused gear aggregation in this area, necessitating a similar seasonal
closure contemporaneous with the State and Federal closures in adjacent
waters. Center for Coastal Studies (CCS) and the Northeast Fisheries
Science Center (NEFSC) reported consistent observations of right whales
within the MRA Wedge from February through April 2018-2023 (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 in
the MRA Wedge and in waters north of the MRA (figure 2). Though right
whales and the associated entanglement risk are present annually in
Federal waters adjacent to Massachusetts before and after the February
1 through April 30 MRA trap/pot closure period, the MRA Wedge poses an
acute entanglement risk to right whales from February through April
during the MRA closure.
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 (see Appendix 3.1 in the associated
EA for this action for Letters of Concern). After further reviewing
available information and considering the high entanglement risk 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). Though the January
2022 letter
[[Page 8335]]
from MA DMF requested a closure to coincide with the MRA closure
period, running from February through April, the emergency closure in
the MRA Wedge was only implemented in April 2022 due to the months
required to prepare a new emergency rule and EA (NMFS 2022) analyzing
the potential economic and biological impacts of the closure.
In December 2022, the Team voted by majority on recommendations to
further reduce right whale entanglement mortality and serious injury in
U.S. commercial fisheries regulated under the Plan. Among the measures
recommended was a spatially 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 emergency MRA Wedge closure into 2023 and 2024, or until new long-
term measures could be implemented. On January 4, 2023, following the
signing of the Consolidated Appropriations Act, 2023 (CAA),\2\ MA DMF
reiterated its concerns about the unprotected waters of 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.
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\2\ The CAA at Sec. 101(a) declares that ``for the period
beginning on the date of enactment of this Act and ending on
December 31, 2028, the Final Rule amending the regulations
implementing the Atlantic Large Whale Take Reduction Plan (86 FR
51970) 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 Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361 et seq.) and the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).'' H.R. 2617-1631--H.R.
2617-1632, Division JJ--North Atlantic Right Whales, Title I--North
Atlantic Right Whales and Regulations. However, CAA Sec. 101(b)
provides that the ``provisions of subsection (a) shall 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 rule falls under
that exemption for the reasons explained in the Classification
section.
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On January 31, 2023, NMFS announced an extension of the 2022
emergency rule closing the MRA Wedge to trap/pot fishing with buoy
lines from February 1 to April 30 while adjacent Federal waters within
the MRA were similarly restricted (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 April 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 . . . .''
DMF also provided empirical gear and whale sightings data from 2021
through 2023 that demonstrated the high co-occurrence of gear and right
whales.
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 (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 Cape Cod Bay and surrounding waters during their
presence particularly important for population recovery (Ganley et al.
2019, Hudak et al. 2023). Ganley et al. (2019) found that sightings
data do not accurately reflect peak whale presence due to diving
behavior that reduces time on the surface. Higher abundances occur in
January through March than are detectable through simple whale counts
or sightings per unit effort, and the time of peak abundance varies
annually, sometimes occurring in March or April (Pendleton et al.
2022). Furthermore, right whale use of Cape Cod Bay has increased in
recent years as spring temperatures warm up earlier in the year,
suggesting that the time 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 demonstrate that whales continue to occupy and
travel through the MRA Wedge to feed in waters in and around
Massachusetts Bay (figure 3; also see figures 14-19 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).
Dedicated survey data on right whale presence in February and March in
Massachusetts Bay and the MRA Wedge likely underestimate the actual
presence of right whales, 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,
Ganley et al. 2022, Hudak et al. 2023), right whale distribution
accordingly shifts and the presence of right whales in the MRA Wedge
increases as they leave Cape Cod Bay, contributing to a peak of
sightings in Massachusetts Bay in April. 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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Changes to the Atlantic Large Whale Take Reduction Plan
This final rule expands the boundaries of the MRA, where the use of
persistent trap/pot buoy lines are seasonally prohibited, to include
the MRA Wedge (figure 4). This final rule closes 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 fishing gear observed in the MRA Wedge
from February through April in the years 2018-2023, 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 with the implementation of this final rule, we used
the Large Whale Decision Support Tool (DST) version 4.1.0 created by
NMFS' Northeast Fisheries Science Center to quantitatively evaluate
[[Page 8340]]
potential risk outcomes for relevant management actions. The DST
incorporates a right whale habitat-based density model built by
researchers at Duke University's Marine Geospatial Ecology Laboratory
in the Nicholas School of the Environment (Version 12, released
February 14, 2022; Roberts et al. 2016a, Roberts et al. 2016b, Roberts
et al. 2020, Roberts et al. 2021, Roberts and Halpin 2022; referred to
as the Duke University whale density model). The Duke University whale
density model estimates the spatiotemporal distribution and density of
right whales throughout the U.S. Atlantic based on observations of
whales from standardized surveys from January 2010 through September
2020 and co-located oceanographic and habitat variables. As described
below, the DST utilizes fishing gear data from 2010-2020. Efforts are
underway to add additional years of data. The DST estimates that the
MRA Wedge closure produces an approximately 1.8 to 2.3 percent
reduction of risk of mortality or serious injury due to entanglement
relative to all Northeast trap/pot fisheries. This is equivalent to a
total risk reduction of approximately 13 to 16.5 percent for the trap/
pot fisheries in Lobster Management Area 1 (LMA 1) Massachusetts
waters, where the threat of entanglement is particularly high for right
whales.
The best available scientific information demonstrates the need for
this action. It also shows that the MRA Wedge closure will likely
provide more protection for right whales than the DST estimates because
the co-occurrence of right whales and buoy lines is likely higher than
the DST estimates. First, the DST utilizes buoy line estimates from
2015-2018 (lobster and Jonah crab in State and Federal waters), 2010-
2020 (other Federal trap/pot fisheries), and 2012-2019 (other trap/pot
fisheries in State waters). The gap in right whale protections between
State and Federal closed waters following the 2021 rule (86 FR 51970,
September 17, 2021) likely pushed more gear into the MRA Wedge than the
DST estimates, as fishermen moved gear from adjacent closed waters into
open waters of the MRA Wedge.\3\ Visual observations of buoy lines in
the MRA Wedge during 2021 and 2022, (see e.g., figure 2) and
correspondence with Massachusetts DMF (see e.g., the letters from MA
DMF, discussed above), further support this conclusion in addition to
the DST analysis.
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\3\ NMFS also recognizes the reductions in buoy lines caused by
the MRA Wedge emergency closures in April 2022 and February through
April 2023.
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Second, the Duke University whale density model estimates that
approximately 0.04 right whales are likely present at any given time in
the MRA Wedge throughout the month in February; approximately 1.4 in
March; and approximately 3.3 in April (see Table 8 in the associated
EA). However, recent right whale sightings data, not yet incorporated
into the model, demonstrate a higher concentration of right whales than
the Duke University whale density model. For example, on February 23,
2021, the NEFSC aerial survey team observed seven right whales inside
the MRA Wedge. On April 8, 2021, a dedicated NEFSC aerial survey team
observed 40 right whales in groups of up to 3 within the MRA Wedge.
Later the same month, on April 28, 2021, the Center for Coastal Studies
aerial survey team observed 19 right whales in the MRA Wedge. On March
7, 2022, NEFSC reported sighting three groups of three right whales
(nine whales total) in the middle portion of the MRA Wedge around
42[deg]20' North latitude. On April 14, 2023, five right whales (a
group of four and one individual) were sighted in the southernmost
portion of the MRA Wedge. Opportunistic sightings were also reported.
On March 14, 2020, two groups of two and three right whales (five
whales total) were reported in the middle portion of the MRA Wedge
around 42[deg]20' North latitude. On April 25, 2022, an opportunistic
sighting of a group of seven right whales was reported in the southern
portion of the MRA Wedge, off of North Scituate.
Additional data support the conclusion that there is a high
concentration of right whales in the MRA Wedge. Figure 3 shows a high
density of right whale sightings around the MRA Wedge; these whales
likely enter or transit through the MRA Wedge. Acoustic detections of
vocalizing right whales also confirm their presence in and around the
MRA Wedge (see figures 15, 17, and 19 in the associated EA). Finally,
right whale presence often goes undetected, and detectability can
depend on whale behavioral states (transiting, feeding, socializing;
Hain et al. 1999, Pendleton et al. 2009, Clark et al. 2010, Ganley et
al. 2019, Ceballos et al. 2022). In summary, there is an acute
entanglement risk that occurs annually because of the co-occurrence of
buoy lines and right whales in the MRA Wedge if the area remains open
to trap/pot fishing in February through April.
The economic impact on the lobster and Jonah crab trap/pot fishery
of adding the MRA Wedge to the MRA is estimated to be relatively small
compared to the total value of the fishery. All impacted vessels remain
authorized to fish trap/pot gear in the open waters of LMA 1, and
elsewhere as permitted. 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. We analyzed a reasonable
scenario where half of the vessels would relocate their traps, and the
other half would stop fishing.\4\ 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). We also
averaged landing values 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, please see (1) the
Classification section below; and (2) subsection 6.2 in the associated
EA and RIR/FRFA for this final rule.
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\4\ The best available data of trap/pot restricted areas show
that removal of gear is more likely for nearshore areas, such as the
MRA Wedge, where fishermen can have long transit distances to open
areas, and because fishermen are also restricted in State waters.
However, fishermen who fish in the MRA Wedge must have Federal
permits, and so they would be able to move their fishing gear to
open Federal waters in LMA 1 or elsewhere, as permitted. Discussions
with Massachusetts fishermen in 2022 indicated that relocating gear
outside the closure area is especially attractive in times of high
lobster prices such as 2021 and the spring of 2022 (Mike Lane
comments to the Team in January 2022, Robert Martin, pers. comm.
2022). Relocating gear is more likely for fishermen fishing out of
the northern ports (e.g., ports in Essex county), closer to open
Federal waters. Fishermen fishing out of the more southern ports
(e.g., ports in Plymouth county) are more likely to remove their
gear from the water. Based on Vessel Trip Report (VTR) data, transit
distances to open waters, and the economics of the fishery, we
determined that a 50/50 split between gear removal from the water
and trap relocation served as a reasonable basis for our analysis.
See RIR at section 5.4.4 for more details.
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[[Page 8341]]
Comments and Responses
On September 18, 2023, we published the proposed rule to amend the
Plan to expand the boundaries of the MRA to include the wedge between
State and Federal waters known as the MRA Wedge, along with the draft
EA. A 30-day public comment period began on September 18, 2023, and
ended on October 18, 2023 (88 FR 63917, September 18, 2023). We
reviewed and considered all written and oral public submissions
received during the comment period. Comments on the proposed rule and
draft EA were accepted as electronic submissions via <a href="http://regulations.gov">regulations.gov</a> on
docket number NOAA-NMFS-2023-0083. We also accepted public comments at
two in-person public hearings on September 26, 2023, in Gloucester, MA,
and on September 28, 2023, in Buzzards Bay, MA.
A total of 26 individuals or groups submitted written comments
through the <a href="http://regulations.gov">regulations.gov</a> comment portal, and 9 speakers submitted
comments orally at the public hearings. One speaker submitted the same
comment three times, at both public hearings, as well as through
written comment. Two speakers submitted the same comments twice, at a
public hearing and through a written comment. In total, we received
comments from 31 unique commenters (individuals or groups). Of these 31
commenters, 7 were fishermen, 3 were fishing industry associations (2
commenters were members of the same organization, but their comments
were different), 6 were other non-governmental organizations, 11 were
other members of the public, 2 were State fishery resource managers,
and 2 were Federal resource managers. Of the 31 commenters, 13
supported Alternative 1 (No Action), 9 supported Alternative 2
(Preferred), 8 supported Alternative 3, and 1 commenter did not express
support for any alternative. Overall, 17 commenters supported taking
action, while 13 did not.
We received several comments that were outside the scope of the
current rulemaking, primarily related to offshore wind energy
development and vessel strikes. NMFS recognizes that recovery of right
whales depends on reducing multiple threats to the species across its
range, in and beyond U.S. waters. Recovery priorities, efforts, and
associated milestones, termed the North Atlantic Right Whale Road to
Recovery, are detailed on the NMFS website (see <a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale/road-recovery">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale/road-recovery</a>).
NMFS undertook this final rule, as analyzed in the Final EA,
through MMPA authority specific to incidental take in U.S. commercial
fisheries. 16 U.S.C. 1387. Although right whales face threats in
addition to commercial fishing, the Plan and the take reduction process
focus on monitoring and managing incidental mortality and serious
injury of marine mammals in U.S. commercial fisheries. Because comments
related to offshore wind development and vessel strikes were outside
the scope of this rulemaking, we forwarded these comments to the
appropriate staff at NMFS but do not provide individual responses in
this document. Below are responses to comments regarding the proposed
rule.
Comment 1: Two fishermen stated that they had never seen right
whales in this area while fishing; one noted that there is no whale
sighting demarcation in the sightings figure (see figure 3 above) in
his precise fishing location within the MRA Wedge. Both expressed
skepticism about whether right whales use the MRA Wedge.
Response: As noted above and in the EA, visual detections confirm
right whale presence in and around Massachusetts Bay and the MRA Wedge,
with a substantial presence from February through April (Johnson et al.
2021, survey results from February-April 2018-2023 depicted in figure
3). Sighting locations are specific to when the whale was observed and
are an empirical confirmation of presence at a point in time. It is
also well-documented that the whales are highly mobile, within and
between foraging and breeding areas (Mate et al. 1997, Slay and Kraus
1997, Baumgartner et al. 2017)). Accordingly, protective areas
encompass waters between sighting locations. Acoustic detections of
vocalizing right whales also confirm their presence in and around the
MRA Wedge (see figures 15, 17, and 19 in the associated EA). Because
there have been instances of acoustic detections of vocalizing whales
that were undocumented by concurrent aerial surveillance (Murray et al.
2022), acoustic data collection is an important supplement to the
visual sightings data.
Comment 2: One commenter stated that, although whales may use the
area, fishermen have been fishing in this area long before the right
whale population started to decline, and therefore any population
decline was not related to fishing gear in this area.
Response: NMFS is required to meet the mandates of the MMPA. While
co-occurrence of fishing gear and right whales in the MRA Wedge is not
new, several changes in recent years have contributed to the need for
this closure. First, decline in the right whale population size has
reduced the PBR level for the species. Between the 2018 and 2021 Stock
Assessment Reports, PBR for North Atlantic right whales declined from
0.9 per year to 0.7 per year (Hayes et al. 2019; Hayes et al. 2022),
and, in the most recently published stock assessment report, PBR stands
at merely 0.7 whales per year (Hayes et al. 2023).
Second, increased right whale habitat use and fishing gear density
in Massachusetts and Cape Cod Bays since 2015 has heightened the risk
of right whale mortality and serious injury from entanglement in
commercial fishing gear in this area. In the years since the 2015
implementation of the original MRA closure, right whale seasonal
habitat use increased in State and Federal waters inside and
immediately outside of Cape Cod Bay, particularly in Massachusetts Bay,
including the MRA Wedge (Johnson et al. 2021). As explained above and
as identified by MA DMF, the 2021 closure of adjacent State waters
likely increased the density of gear in the MRA Wedge during the MRA
closure period. Observational sightings of whales and gear during
surveys conducted from 2018 through 2023 provide empirical evidence of
the high risk of overlap between right whales and buoy lines in this
area (see figures 2 and 3 above). Recent circumstances and events have
increased the risk of lethal entanglement in the MRA Wedge and have
exacerbated the adverse population level consequences of any such an
entanglement.
Comment 3: Several commenters suggested that the risk to right
whales in the MRA Wedge may be underestimated by the DST.
Response: The DST may underestimate risk in the MRA Wedge during
February through April. The most current whale habitat density model
provided by Duke University (Version 12, released February 14, 2022;
Roberts et al. 2016a, Roberts et al. 2016b, Roberts et al. 2020,
Roberts et al. 2021, Roberts and Halpin 2022), has not yet incorporated
certain empirical data such as dedicated survey sightings from October
2020 to present, nor does it include empirical acoustic and
opportunistic right whale detections. These empirical data provide
support for the right whale distribution indicated by the Duke
University whale density model.
Using the current Duke University whale density model, the DST
estimates that risk reduction associated with a MRA Wedge closure is
substantial.
[[Page 8342]]
Recent changes to ocean circulation patterns are causing changes to
prey distribution (Record 2019a, Record 2019b), and empirical
observations, both visual and acoustic, demonstrate that the waters off
Massachusetts are increasingly used seasonally by more right whales.
Recent monitoring has also confirmed an increase in seasonal whale
presence in Federal waters near Cape Cod Bay, including in the MRA
Wedge. The DST provides a reasonable comparison of the relative risk
reduction among action and non-action alternatives and a reasonable
estimate of the overall risk reduction for each alternative. NMFS
considered the empirical evidence showing greater seasonal right whale
presence in the MRA Wedge than predicted by the Duke University whale
density model. NMFS also considered that buoy-line density would likely
be higher in the MRA Wedge than DST estimates. Recent empirical data of
right whales and buoy-lines provide the first line of evidence
justifying this rulemaking; the DST estimates, which incorporate the
Duke University whale density model, provide a strong secondary and
supporting line of evidence. Both lines of evidence are the best
scientific information available.
Comment 4: One commenter suggested that NMFS was relying on
outdated data by using the DST to support adding the MRA Wedge to the
MRA, stating that NMFS's final rulemaking should explain why whale
distribution data for the past 3 years (2020-2023) were not included in
its analysis, and suggesting that NMFS is not using the best scientific
data available.
Response: We used the most recent whale distribution data from a
variety of sources, including dedicated surveys, acoustic detections,
opportunistic sightings, and the Duke University whale habitat model.
Although the DST does not utilize whale distribution data after
September 2020, NMFS considered whale distribution data from 2010-2023.
As noted in the response to Comment 3 and elsewhere, the rule utilizes
the best available scientific information, including recent right whale
distribution data from 2020-2023. For example, we considered empirical
sightings up through the present, including acoustic and observational
sightings data from 2018-2023. For a more detailed explanation of the
data used as well as the application of the DST model and the data it
contains, please see subsections 3.2 and 6.2 in the associated EA.
Comment 5: One commenter suggested that NMFS should evaluate
whether the 2021 rule and the 2022 and 2023 emergency rules have been
effective in reducing risk outcomes for right whales over the past 2
years before implementing the MRA Wedge as an amendment to the Plan.
Response: As set forth in the Plan's Monitoring Strategy (NERO PRD
2012), we review the Plan's effectiveness and compliance with it
annually, through a variety of reports, summaries, and Team meetings.
We conduct biological analyses, including evaluating large whale
population trends, entanglement events, mortality/serious injury,
frequency of reported entanglement events, and data on large whale
scarification; disentanglement and gear analyses, including evaluating
large whale stranding response, disentanglement response, and
collection and identification of recovered gear; and oceanographic and
fisheries-based analyses, including evaluating effects of oceanographic
trends and commercial fisheries regulation on large whale species. As
part of our annual monitoring efforts, we also review fishing industry
analyses, including observer data on commercial gear and fishing
effort; conduct analysis of law enforcement activities, including
collaborating/communicating with law enforcement partners, funding of
joint enforcement agreements, and conducting targeted special
operations patrols; and undertake analysis of education and outreach
activities, including quantifying outreach efforts to the public,
evaluating effectiveness of industry liaisons, and evaluating
effectiveness of outreach to State and local law enforcement partners.
These efforts are shared with the Team every year.
As noted in the Monitoring Strategy, evaluating the effectiveness
of the Plan and its components presents several unique challenges,
including limited data pertaining to large whale fishery interactions.
Large whale entanglements are typically not observed or documented by
fishery observers or other sources. Scarring reports indicate that
right whales sometimes become entangled but then shed the gear without
human intervention, thus, even when serious injuries and mortalities
are observed with evidence of entanglement, there is no gear remaining.
Furthermore, in most of the limited number of observed entanglement
cases with gear still present, fishing gear cannot be removed, and when
gear is removed, it can rarely be attributed to a particular gear type,
component, fishery, or geographic region due to lack of distinctive
marks that would identify the source of the gear (see subsection 5.1.1
in the associated EA).
Nevertheless, the 2022 emergency closure and its extension in 2023
had their intended effect of separating whales from risk during the
closure period. Substantial risk reduction is evident, given that
vertical buoy lines were not present in the MRA Wedge in April 2022 and
February through April 2023--months when large groups of right whales
were observed in the area in recent years (including, among other
sightings, single day observations of 40 right whales on April 28, 2021
and 9 whales on March 7, 2022). The present rulemaking is therefore
necessary to address present and future risk in the MRA Wedge. NMFS
reasonably anticipates that the MRA Wedge closure will immediately
address entanglement risk from static vertical lines. Removing static
vertical lines from the MRA Wedge at the time of year when there is
documented high presence of right whales decreases the risk of right
whale entanglement. NMFS will continue to consider and address new
information as it comes to light.
Comment 6: During the two public hearings in September 2023,
several fishermen raised concerns about landings being impacted by the
potential crowding effects outside the MRA Wedge closure, especially in
late April before Federal waters reopen.
Response: It is unlikely that this closure will affect trap catches
due to crowding during the months of February, March, and April, when
fishing effort is relatively low, or as compared to summer and fall
months when fishing effort is higher. We examined the VTR data from
2019 to 2023 and found decreased effort in April 2022 and increased
effort in April 2023 outside the MRA Wedge within one nautical mile
(nmi; 1.85 kilometers) to the east of the MRA Wedge closure, an area
referred to as the Wedge Buffer Zone (see figure 5),\5\ when compared
to 2019 and 2021.\6\ Throughout the years 2019 to 2023, the total
reported number of active vessels in the Wedge Buffer Zone in April
remained relatively low
[[Page 8343]]
when compared to other months (see footnote 4).
---------------------------------------------------------------------------
\5\ Because the minimum trawl length in LMA 1 in the area 3-6
nmi (5.6-11 km) offshore is 10-15 traps, which is approximately a
trawl length of 1 nmi (1.9 km), if a fisherman is relocating traps
just outside the MRA Wedge to have easy access to the area when it
opens, the Wedge Buffer Zone is the most likely area (1 nmi [1.9 km]
next to the MRA Wedge) for these traps to be placed.
\6\ During 2020, the pandemic year, most vessels did not fish
regularly in the spring. Therefore, we did not consider 2020 data to
be representative or informative.
---------------------------------------------------------------------------
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR07FE24.034
BILLING CODE 3510-22-C
In April 2022, the MRA Wedge was closed for the first time under
the emergency rule (87 FR 11590, March 2, 2022). VTR data showed only
one vessel in the Wedge Buffer Zone, and the total number of traps
fished increased slightly, relative to reported effort in March 2022,
but decreased when compared to April 2019 and 2021. In 2023, the MRA
Wedge was closed under the emergency rule (88 FR 7362, February 3,
2023) from February 1 to April 30, 2023. During the emergency closures,
crowding was not evident. There were few vessels observed in the Wedge
Buffer Zone in the VTR data (one vessel in February, two vessels in
March and April 2023). The total number of trips and the total number
of traps fished increased significantly, but those increased trips were
from the same fisherman who had been fishing in the Wedge Buffer Zone
before April 2023.
While VTR data represent a subset of effort, comparing VTR data
shows some interannual variability, but does not demonstrate enough
displaced effort to cause substantial crowding and reduce catch values
due to the closure. Effort that may have moved was still well below the
effort that is sustained across LMA 1 Massachusetts waters during the
times of year, such as late summer, when more fishermen are actively
fishing. Given the low fishing effort in the Wedge Buffer Zone during
the emergency closures, NMFS reasonably expects that the fishing effort
in other nearby and adjacent waters will be similarly low during the
permanent seasonal closure. Accordingly, we do not anticipate effects
to landings from crowding outside the MRA Wedge closure.
Comment 7: The MRA Wedge will make it harder for fishermen to get
fishing crew to help with harvesting without the option for year-round
employment. Temporary or seasonal fishing crew are harder to find.
Response: We recognize that in the past few seasons, the fishing
industry, like other employers, experienced labor shortages. Based on a
research study by the Society of Human Resource Management (SHRM 2021),
nearly 9 in 10 of the organizations surveyed said they were finding it
difficult to fill certain open positions--especially those at entry
level--and nearly 7 in 10 organizations believe that the expanded
COVID-19 unemployment benefits contributed to this difficulty.
Crew on lobster boats are usually paid based on the harvest, so
their income is unstable, especially during the winter/spring season
when there are more severe weather days and lower catch rates. We
understand from scoping meetings and public hearings that if lobster
vessels are unable to secure year-round crew at the beginning of the
year, they might have to offer higher pay to get crew when peak season
starts. Lobster boats without extra crew would likely fish fewer traps
and trawls, or
[[Page 8344]]
may make fewer hauls per trip; therefore, they might experience some
catch reduction and lower revenue.
As the pandemic has eased, the labor market has gradually returned
to normal. For example, according to the Bureau of Labor Statistics,
the Massachusetts unemployment rate dropped from 17 percent in April
2020 to 3 percent in April 2023. With the labor market stabilizing, we
do not anticipate that this rule will have a substantial impact on the
availability of labor. NMFS will continue to consider new information
that becomes available.
Comment 8: In many places where affected fishermen reside, there is
very little opportunity to make income by other means, so the MRA Wedge
closure will hurt fishermen economically.
Response: NMFS has considered the reliance of impacted communities
on lobster fishing and alternative employment opportunities; please see
section 6 of the associated EA and section 5 of the RIR for our
detailed analyses. In summary, the Massachusetts counties that are home
to the affected fishing ports have varying levels of reliance on
lobster fishing. All offer other fishery and employment opportunities
for any crew or vessel operators impacted by the expansion of the MRA
closure area. We note that we considered but did not select a more
expansive rulemaking (see Alternative 3 in the associated EA), because
of, among other reasons, its potential adverse economic effects on
fishermen. The present rule reasonably balances right whale protections
with economic impacts.
Comment 9: One commenter requested as much notice as possible
regarding permanent rulemaking on this matter to provide sufficient
time for the fishing industry to prepare.
Response: We recognize the importance of providing sufficient time
for the fishing industry to prepare for regulatory changes.
Accordingly, NMFS is providing 30 days' notice before the final rule
becomes effective, to allow regulated entities to come into compliance.
This will provide the fishing industry with sufficient time to attain
compliance by, for example, relocating trap/pot gear from the MRA Wedge
to dry storage or to waters open to trap/pot fishing.
Comment 10: One commenter voiced support for implementation of
Alternative 2 (this rule) for the years 2024 through 2028, with the
understanding that NMFS would thereafter implement amendments to the
Plan in accordance with the CAA.
Response: Subject to new data or circumstances, the MRA Wedge
addition to the MRA closure is a permanent rulemaking, effective March
8, 2024. NMFS will comply with the CAA to the full extent of the law.
Comment 11: Several commenters stated their position that this
regulation is not allowed under the CAA. Specifically, one or more
commenters said that the language of the CAA prohibits any additional
rulemaking that affects the Northeast lobster/Jonah crab fishery
through the end of 2028; that Congress did not grant NMFS the power to
transform, or make final, the emergency rule closing the MRA Wedge into
a permanent rule; and that the 2023 MRA Wedge Closure is not an
extension of the 2022 MRA Wedge Closure, and therefore was not
permissible under the CAA.
Response: These comments misunderstand the CAA. NMFS is
promulgating this rule pursuant to MMPA section 118. And as explained
in the regulation's Classification section, this rule falls under the
CAA's Sec. 101(b) exemption.
Section 101(a) of the CAA established that from December 29, 2022,
through December 31, 2028, NMFS' 2021 rule ``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)). Section 101(a) of the CAA also 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). In Sec. 101(b) of the CAA, however, Congress
explained that Sec. 101(a) ``shall 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.''
Under Sec. 101(b), NMFS may use its existing rulemaking authority
under the MMPA to close the MRA Wedge. Rather than ``misstating'' Sec.
101(b), as one commenter argued, NMFS is adhering to the text of Sec.
101(b) and its surrounding context because this regulation ``make[s]
final'' the 2022 emergency rule. As described in the regulation's
Background and Classification sections, the 2022 emergency rule is the
only ``emergency rule'' that Sec. 101(b) could refer to, and it was
``in place on the date of enactment of the CAA,'' given the continuing
emergency and NMFS' authority under the MMPA to extend that rule at the
time of the CAA's enactment. NMFS does not believe, as some commenters
seem to suggest, that ``in place'' means ``in effect.'' That reading
would mean the Sec. 101(b) exemption has no effect--it had no effect
when the CAA was enacted, and it would never have any legal effect,
since the commenters do not identify any other emergency rule that
Congress could reasonably have been referencing in Sec. 101(b) (and
there is none for the reasons explained below). As explained in the
Classification section below, NMFS declines to adopt a reading of the
statute that would render Sec. 101(b) meaningless surplusage.
For further explanation that is responsive to these comments,
please see the regulation's Background and Classification sections.
Comment 12: Two commenters claimed that the proposed rule was
illegal under Maine Lobstermen's Association v. Raimondo, 70 F.4th 582
(D.C. Circuit 2023) (MLA), stating that the Court determined that the
underlying science supporting the 2021 rule, and by extension this
regulation, was invalid based on the Agency's consideration of a
``worst-case scenario'' in the development of the 2021 Batched
Fisheries Biological Opinion (2021 BiOp, NMFS 2021b).
Response: These comments misunderstand MLA. The MLA ruling
addressed an ESA Section 7 formal consultation (2021 BiOp) conducted by
NMFS regarding Federal authorization of the lobster fishery. By
contrast, the 2021 rule underwent a separate and distinct ESA Section 7
informal consultation, and this regulation falls under the informal
consultation for the 2021 rule. As explained below in the
Classification section, this regulation is simply not ``promulgated on
the basis of the 2021 Biological Opinion,'' as one commenter suggests.
Moreover, the 2021 rule and this regulation are promulgated under
the MMPA, not the ESA. The MLA court did not analyze the legal
standards set forth in the MMPA. While the court vacated the 2021 BiOp,
the panel explained, ``we are not convinced the error claimed by the
lobstermen is fatal to the [2021 rule].'' MLA at 601. In any event,
this regulation applies the best available scientific information
including recent observational and acoustic detections of right whales;
does not consider worst-case scenarios; and is supported by its own
administrative record.
Comment 13: One commenter argued that NMFS was ``on notice that a
court of law has already said it is violating the law,'' relying on
statements that D.C. District Court Chief Judge Boasberg made during a
February 16, 2023 hearing on a motion for a Temporary
[[Page 8345]]
Restraining Order in Massachusetts Lobstermen's Association, Inc. v.
NMFS, No. 1:23-cv-00293 (D.D.C.), which challenged the 2023 emergency
rule extension (i.e., 88 FR 7362). In particular, the commenter quoted
the following statement: ``I think that the plaintiffs may well have a
better argument on the merits than the government. It's a close
question and one that I probably need to think about more. But in the
time that I have had, I think that Mr. Cragg has probably got a better
reading of the way--a better interpretation of the exception.''
Response: Far from ``sa[ying] [NMFS] is violating'' the CAA, the
court made clear that it was not deciding the correct interpretation of
the CAA at that hearing. Even the statement quoted by the commenter
includes the caveat that ``[i]t's a close question and one that [the
judge] probably need[s] to think about more.'' The court ultimately
denied Plaintiff's Motion for a Temporary Restraining Order on other
grounds, and the case was dismissed without briefing or ruling on the
merits. In any event, we carefully considered these statements and
determined that the present rulemaking complies with all applicable
laws.
Comment 14: One commenter asserted that the 2023 MRA Wedge closure
was illegal and, therefore, this regulation is illegal.
Response: We dispute this characterization of the 2023 MRA Wedge
closure. Independently, as described in the Classification section
below, we determined that the present rulemaking complies with all
applicable laws.
Comment 15: One commenter stated that this rulemaking is occurring
outside of the traditional Take Reduction Team process.
Response: The commenter is incorrect; this rulemaking was conducted
within the Take Reduction Team process. In January 2022, NMFS received
letters and emails from MA DMF, Stellwagen Bank National Marine
Sanctuary, and non-governmental organizations expressing concerns about
the gap in restricted waters and the heightened risk of entanglement
for right whales during the annual MRA closure period from February
through April. We brought these letters, and the underlying
information, to the Team's attention later that same month, in a
January 2022 Team webinar. State, academic, and non-governmental
organizations expressed support for including the MRA Wedge in a future
Plan amendment, while Massachusetts fishing representatives expressed
concerns about economic impacts during a season when effort is
generally low and price is sometimes high. The Team discussed the MRA
Wedge closure as a future possible Plan amendment and determined it was
worth considering for expedited rulemaking, due to its potential for
significant risk reduction. In December 2022, a majority of Team
members voted in favor of recommending several suites of measures that
included expanding the MRA closure to include the MRA Wedge and waters
farther north, including Jeffreys Ledge. NMFS considered the Team's
December 2022 non-consensus recommendations, and, as the agency
ultimately responsible for ensuring that the requirements of the MMPA
are met, decided to move forward with promulgating this permanent rule
and has explained its reasoning for the present rulemaking.
Comment 16: One commenter noted that Alternative 2 could
incentivize lobstermen to stage their trap/pot gear just north of the
MRA Wedge during the month of April while waiting for the MRA to reopen
on May 1. The commenter suggested that NMFS revise the wet storage
regulation to require gear to be hauled out of the water at least once
every 14 days. The commenter proposed that staging gear just outside of
the restricted areas should be closely monitored and addressed if
necessary. Another commenter noted that wherever lines are drawn in the
ocean, there will be gear piling up outside those lines.
Response: We recognize that some fishermen may wish to ``stage''
their gear outside the closures, particularly in April, ahead of the
May 1 opening of the MRA. It is possible that a change in current
regulations requiring gear to be hauled and reset every 14 days, rather
than every 30 days, might encourage the removal of gear to reduce the
need for offshore trips during winter months. However, such a change
was not considered in the proposed rule or analyzed in the draft EA.
Accordingly, it is not being considered for inclusion in this
rulemaking. In addition, MA DMF explains that gear in the MRA Wedge is
infrequently hauled and is largely used for wet storage, presumably due
to the inconvenience of hauling gear on land and, in some cases, the
lack of storage areas on land. (See Appendix 3.1 in the associated EA
for Letters of Concern). To address this issue, we recommend that
fishermen and industry organizations work with partners to locate areas
where gear can be stored on land during the seasonal closure.
Comment 17: One commenter questioned whether commercial fishing is
any more detrimental to whale populations than commercial shipping, now
that weak rope and weak link requirements have been implemented.
Response: Weak rope and weak links provide risk reduction benefits
to right whales because they may allow adult right whales to break the
lines during an entanglement, reducing the severity of entanglement
events. However, further protective measures are needed because weak
rope and weak links do not reduce the number of entanglements, nor do
they protect right whale calves and young right whales that are not
strong enough to break free of these lines before mortalities and
serious injuries occur. To further reduce mortalities and serious
injuries, we have determined that closures are necessary in areas where
there is a high co-occurrence of right whales and vertical lines.
Without a closure, entanglement risk is high in the MRA Wedge from
February through April, when right whales are present in the area in
high numbers.
As the commenter notes, vessel strike risk continues to be of
concern. The best available scientific information demonstrates that
reduction of both entanglements and vessel strikes is necessary for
recovery of the North Atlantic right whale population throughout its
range, including in the United States and Canada (Runge et al. 2023).
Commercial shipping activities are outside of the scope of this
rulemaking.
Comment 18: Several commenters noted that the continued threat
posed by the overlap between dense accumulations of gear within the MRA
Wedge or along the MRA Wedge borders (fencing) and right whale
aggregations requires a permanent management solution rather than
consecutive emergency actions.
Response: With respect to waters within the MRA Wedge, this
regulation provides a permanent management solution. With respect to
open waters just outside the MRA Wedge, we assessed the risk of gear
accumulation, known as a fencing or ``curtain effect,'' in which
fishermen displaced by the MRA Wedge closure will instead choose to set
their gear along the perimeter of the closure boundary, in an area
referred to as the Wedge Buffer Zone (figure 5). As discussed in
response to Comment 6, we did this by examining Federal VTR data from
2019 to 2023 to identify trends in fishing effort outside of the MRA
Wedge following the 2022 and 2023 emergency closures. The data show
that there was not displaced effort sufficient to cause a curtain
effect in the Wedge Buffer Zone following the closed periods in 2022
and 2023 (see subsection 6.2.4 in the associated EA).
[[Page 8346]]
Nevertheless, not all gear stored in the Wedge Buffer Zone is
captured by VTR data; more observational data are needed to evaluate
the extent of wet storage in this area. Still, relative to the fishing
effort that occurs during more active fishing months such as late
summer, the amount of gear displaced is low and unlikely to create a
substantial curtain. At this time, the risk of a curtain effect from
the MRA Wedge closure is outweighed by the high entanglement risk
within the MRA Wedge waters from February through April each year if it
remains open during the MRA closure period.
Comment 19: Seven commenters expressed support for Alternative 3,
citing: (1) the need for aggressive action to achieve the MMPA goals of
reducing incidental mortality and serious injury to below the PBR
level; (2) additional incentive for fishermen to remove non-actively
fished gear from the water and store the gear on land, as opposed to
wet storage in the ocean; (3) concern that Alternative 2 would likely
lead to pot/trap gear movement north from the MRA Wedge to other areas
where right, humpback, and fin whales historically have been sighted;
and (4) the fact that coverage of the entirety of the Stellwagen Bank
National Marine Sanctuary would provide consistency with the aims of
the Stellwagen Bank National Marine Sanctuary Final Management Plan.
Response: As the commenters noted, Alternative 3 would have greater
risk reduction benefits for right whales, and potentially also for fin
and humpback whales, as gear removal reduces risk of entanglements.
However, Alternative 2 provides a reasonable balance between risk
reduction and economic impacts as it will substantially reduce the risk
of right whale entanglement during a critical time period, while
displacing few fishermen overall and allowing fishermen to continue
fishing during that time in areas with less risk. This rulemaking does
not specifically target fin and humpback whales. Nevertheless, NMFS
concluded that this regulation may benefit fin and humpback whales
after considering their known distributions and likely effects on gear
movement (see subsection 6.2 in the associated EA and subsection 5.4 of
the associated RIR/FRFA). NMFS does not anticipate that this regulation
will meaningfully increase entanglement risk to right, humpback, and
fin whales in areas outside the MRA and MRA Wedge.
With respect to the Stellwagen Bank National Marine Sanctuary, NMFS
refers the commenter to the U.S. Congress's mandate in CAA Sec. 101.
Comment 20: One commenter supported Alternative 3, noting that the
difference in economic impacts is relatively small (i.e., the
compliance cost for Alternative 2 is $400 per vessel, compared with
$2,000 per vessel for Alternative 3). However, the risk reduction is
higher for Alternative 3 than Alternative 2.
Response: The difference in per-vessel compliance costs between
Alternative 2 and Alternative 3 is material. And although the overall
risk reduction for Alternative 3 is higher than for Alternative 2, the
cost for each percentage of risk reduction is higher for Alternative 3
(approximately $30,000-$48,000 per percentage point of risk reduction)
than for Alternative 2 (approximately $22,000-$40,000 per percentage
point of risk reduction). In other words, Alternative 3 costs more for
each percentage of benefit for right whales. While information is not
available to conduct a full benefit-cost analysis (see subsection 5.4
of the associated RIR), the cost for each percent of risk reduction
provides a useful comparison.
Comment 21: A few commenters suggested that we expand the MRA Wedge
to apply to all fixed-gear fisheries.
Response: This rulemaking is limited to trap/pot fishing, the
fishery operations that deploy approximately 93 percent of all the buoy
lines in U.S. waters (NMFS 2021a) and represent the vast majority of
entanglement risk to right whales in the MRA Wedge. Other fixed-gear
fisheries were not considered for restrictions in the proposed rule so
their inclusion in this final rule is not proper. NMFS is currently
working to address the risks posed by other fixed-gear fisheries by
considering potential new regulations for non-lobster and Jonah crab
fisheries, based on the Team's December 2022 recommendations. Those
considerations are ongoing.
Changes From the Proposed Rule
There are no changes to the final rule.
Classification
The NMFS Assistant Administrator has determined that the final rule
is consistent with the Plan, with the rulemaking authority under MMPA
section 118(f), and with other applicable laws including the
Administrative Procedure Act and 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. Section 101(a) of the CAA establishes that from December 29,
2022, through December 31, 2028, NMFS' September 17, 2021 rule amending
the Plan, 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 Sec. 101(a) shall not apply to ``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 final rule complies with CAA Sec. 101(b). The ``emergency
rule'' in Sec. 101(b)'s express exception must refer to the 2022 MRA
Wedge rule, 87 FR 11590 (March 2, 2022), because there is no other
``emergency rule'' to which Congress could have been referring.
Moreover, the 2022 emergency rule was ``in place'' within the meaning
of that phrase under Sec. 101(b) at the time of the CAA's enactment on
December 29, 2022, thereby satisfying the conditions for the Sec.
101(b) exception.
There is no other ``emergency rule'' that Sec. 101(b)'s exception
could cover because the 2022 emergency rule is the only emergency
rulemaking implemented in the past decade under the MMPA, ESA, or any
other relevant statutes affecting the lobster and Jonah crab fisheries.
Congress would not reasonably have expected NMFS to issue another
emergency rule when it was enacting the CAA, or in the short time
between when Congress passed and the President signed the CAA, which
would have been insufficient time for emergency rulemaking. That is
particularly the case because Sec. 101(b) contemplates that NMFS may
``extend'' or ``make final'' an emergency rule that is in place at the
time of the CAA's enactment, which indicates that Congress was
referring to an emergency
[[Page 8347]]
rule that it had notice of, rather than the possibility of a new
hypothetical rule.
The 2022 emergency rule was also ``in place on the date of
enactment of'' the CAA within the meaning of that phrase in Sec.
101(b). Although the 2022 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
under MMPA Sec. 118(g) to extend that rule at the time of the CAA's
enactment. 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 trap/pot 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.\7\
Accordingly, because NMFS was authorized to extend the rule under MMPA
Sec. 118(g)(4), the 2022 emergency rule 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. If
Congress intended to limit CAA Sec. 101(b) to an emergency rule that
was ``in effect'' on the date of the CAA's enactment, Congress could
have used that language.
---------------------------------------------------------------------------
\7\ NMFS does not, however, retain extension authority ad
infinitum. For example, if the extension is unreasonably attenuated
from the original emergency rule, an extension is improper. In
contrast, the 2023 emergency rule extension was a single extension
that immediately followed the original 2022 emergency rule during
the subsequent migration season, while all other material features
of the ongoing emergency remained constant. Moreover, the ongoing
emergency was seasonal, given the timing of right whale migrations
in and around the MRA Wedge and the timing of the MRA closure in
adjacent waters. The 2023 emergency rule extension was, accordingly,
seasonally consecutive with the 2022 emergency rule. Under the
emergency rulemaking's applicable facts and circumstances, NMFS
properly utilized MMPA Sec. 118(g)(4), given the close nexus
between the 2022 emergency rule and its 2023 emergency rule
extension.
---------------------------------------------------------------------------
Any other reading of the statute would deprive the Sec. 101(b)
exception of any legal effect. Commenters objecting to NMFS's reading
of the CAA did not identify any other emergency rule to which Sec.
101(b) could reasonably refer, and as explained above, there is no
other emergency rule that could be subject to Sec. 101(b). NMFS
declines to adopt a reading of the statute that would render Sec.
101(b)--one of only two subsections in Sec. 101 of the CAA--
meaningless.
Based on the foregoing reading of the CAA, NMFS ``extend[ed]'' the
2022 emergency rule, CAA Sec. 101(b), the following year by closing
the MRA Wedge from February 1, 2023 through April 30, 2023 to match the
broader closure of Federal waters in the MRA. This rule seeks to ``make
final,'' CAA Sec. 101(b), the 2022 emergency rule by incorporating the
MRA Wedge into the larger MRA boundaries. The final 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 final rule
would therefore ``make final'' the MRA Wedge closure under the Plan, in
accordance with the MMPA and CAA.
National Environmental Policy Act
NMFS prepared a Final EA for this rule that discusses the potential
impacts on the environment of changes to the Plan. In addition to the
status quo (Alternative 1), two alternatives are analyzed: Alternative
2 (preferred and the basis of this 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. (We note that, in 2024,
the MRA Wedge closure will occur after February 1, due to the 30-day
delay in effectiveness after publication, to provide adequate notice.)
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 1.8 to 2.3 percent. Alternative 3 is estimated to reduce
risk by 3.1 to 5.3 percent. The difference in impact between the two
alternatives is even greater when considering local risk in the area in
LMA 1 Massachusetts waters, an area with particularly high entanglement
risk during the MRA closure months (13 to 16.5 percent risk reduction
under Alternative 2, compared to 22.6 to 38.3 percent under Alternative
3). Overall, the economic impacts of 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 over 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
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 final 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 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 a final regulatory flexibility analysis (FRFA) in support of
this action, as required by section 603 of the RFA. The FRFA describes
the economic impact this final rule will have on small entities.
Although we analyzed an alternative that would close a larger area and
result in greater risk reduction (see Alternative 3 in the associated
EA), twice as many small entities would have been affected and each
risk reduction unit would cost 19 to 32 percent more than the
alternative implemented under this final rule. While the risk reduction
estimate for this alternative was higher, it was not selected due to,
among other reasons, its economic effects on fishermen. The present
rule reasonably balances right whale protections with economic impacts.
A description of the action, why it is being considered, and its legal
basis 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.
[[Page 8348]]
The FRFA 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 so that it would not be economically feasible
to travel to this area to fish. Therefore, this final rule would
directly affect relatively few entities that actually fished with
vertical lines in the MRA Wedge 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 final 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 final rule
falls within the scope of the analysis conducted in the informal ESA
Section 7 consultation on the implementation of the 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 final rule is a separate action independent from the 2021 ESA
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; NMFS
2021b). The final rule was not developed during the fisheries
consultation process that culminated in the 2021 BiOp, and the final
rule satisfies the ESA and MMPA requirements through a consultation
that was entirely distinct from the 2021 BiOp. The final 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 final rule.
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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: February 1, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 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 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) * * *
(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 this 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. 2024-02438 Filed 2-6-24; 8:45 am]
BILLING CODE 3510-22-P
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