Taking of Marine Mammals Incidental to Commercial Fishing Operations and Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, 73848-73852 [2014-29195]
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[FR Doc. 2014–28736 Filed 12–11–14; 8:45 am]
BILLING CODE 6712–01–P
Management Area closure dates to
February 1 through March 31.
DATES: Effective December 12, 2014.
ADDRESSES: Copies of the supporting
documents for this action, as well as the
Atlantic Large Whale Take Reduction
Team meeting summaries and
supporting documents, may be obtained
from the Plan Web site (https://
www.greateratlantic.fisheries.noaa.gov/
protected/whaletrp/) or by
writing to Kate Swails, NMFS, Greater
Atlantic Regional Fisheries Office,
Protected Resources Division, 55 Great
Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Kate
Swails, NMFS Greater Atlantic Regional
Fisheries, 978–282–8481, Kate.Swails@
noaa.gov; or, Kristy Long, NMFS Office
of Protected Resources, 206–526–4792,
Kristy.Long@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 229 and 697
[Docket No. 141002823–4999–02]
RIN 0648–BE57
Taking of Marine Mammals Incidental
to Commercial Fishing Operations and
Atlantic Coastal Fisheries Cooperative
Management Act Provisions; American
Lobster Fishery
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule to
amend the regulations implementing the
Atlantic Large Whale Take Reduction
Plan to modify the start date of the
Massachusetts Restricted Area to begin
on February 1, 2015, and to expand the
Massachusetts Restricted Area by 912
square miles. In addition, this rule will
revise the Federal lobster regulations to
be consistent with the revised start date
of the Massachusetts Restricted Area.
Recent Federal lobster regulations
closed the Outer Cape Lobster
Management Area to lobster trap fishing
from January 15 through March 15,
which is consistent with the lobster trap
haul-out period in the Atlantic States
Marine Fisheries Commission’s
Interstate Fishery Management Plan for
American Lobster. This rule would
adjust the Outer Cape Lobster
SUMMARY:
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This final rule combines two
regulatory modifications that are
authorized under different statutes.
Specifically, this action amends the
regulations implementing: (1) The
Atlantic Large Whale Plan (Plan)
regulations found at 50 CFR part 229
under the authority of the MMPA; and
(2) the Federal American lobster Fishery
Management Plan regulations found at
50 CFR part 697 under the authority of
the Atlantic Coastal Fisheries
Cooperative Management Act.
NMFS published a final rule
implementing an amendment to the
Plan on June 27, 2014 (79 FR 36586) to
address large whale entanglement risks
associated with vertical line (or buoy
lines) from commercial trap/pot
fisheries. That amendment included
gear modifications, gear setting
requirements, a seasonal closure
(Massachusetts Restricted Area) and
gear marking for both the trap/pot and
the gillnet fisheries. The Massachusetts
Restricted Area is a seasonal closure
effective January 1 through April 30 for
all trap/pot fisheries. Trap/pot fisheries
account for the largest number of
vertical lines in the water column.
In September 2010, in consultation
with the Atlantic Large Whale Take
Reduction Team (Team), NMFS
developed protocols for considering
modifications or exemptions to the
regulations implementing the Plan.
Following these protocols, on August
18, 2014, the Massachusetts Division of
Marine Fisheries (DMF) submitted a
proposal to modify the Massachusetts
Restricted Area and exempt several
areas from the gear setting requirements
to address safety and economic
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concerns raised by Massachusetts
fishermen.
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Review of Massachusetts Restricted
Area
The proposal submitted by DMF
contains two components:
(1) Modify the Massachusetts
Restricted Area (closure), which begins
on January 1, 2015 by:
Æ Modifying the timing and size of
the closure.
Æ Establishing gear stowage areas
during a portion of the closure.
(2) Establish several exemption areas
to the current minimum number of traps
per trawl requirement, which take effect
June 1, 2015.
Æ Exemption areas would include
portions of Southern New England
waters (Buzzards Bay, Vineyard Sound,
and Nantucket Sound) as well as state
waters north and east of Cape Cod.
Given the importance of addressing
the closure before it begins on January
1, 2015, and the time needed to
complete the analysis of the entire suite
of requests contained in the entire DMF
proposal, NMFS decided to address the
modifications to the closure and the
exemption of the minimum number of
traps per trawl requirements separately.
Changes to the Plan
This action modifies the start date of
the closure to begin on February 1, 2015
and expand the area by 912 square
miles. This action responds to
comments to improve the past action
while balancing risk reduction
considerations. Specifically, the action
decreases the number of affected vessels
and results in reductions in compliance
costs while maintaining the same
entanglement risk reduction as provided
in the June 2014 amendment to the
Plan.
At its October 1, 2014 meeting, the
Team discussed the requested
modifications to the closure, as well as
the creation of the trap/pot storage
areas. The discussion included a review
of the merits and analysis of the DMF
proposal utilizing NMFS’s cooccurrence model. The model
incorporates information on geographic
and temporal variations in fishing effort
and the distribution of fishing line, as
well as whale sightings per unit of
survey effort, and identifies areas and
times at which whales and commercial
fishing gear are likely to co-occur. The
model’s final product is a set of
indicators that provide information on
factors that contribute to the risk of
entanglement at various locations and at
different points in time. These
indicators, in particular the number of
vertical lines in an area and the area’s
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co-occurrence score, assumed to be
related to the relative entanglement risk
in different locations. They also provide
a basis for comparing the impact of
alternative management measures on
the potential for entanglements to occur.
NMFS compared the impacts of the
current and new closure areas for
conservation benefit using its cooccurrence model and economic
analysis. The methods and data sources
used in this analysis are consistent with
those applied in the Final
Environmental Impact Statement (FEIS)
for the 2014 Plan amendments referred
to above. The changes to the closure
would allow approximately 125 vessels
to continue to fish during a lucrative
time of year for the fishing industry and
would require a slightly greater number
of vessels to suspend activity from
February through April. This is because
the new closure area is larger than the
current closure area, an increase of 912
square miles. On average, the new
closure area offers a similar reduction in
co-occurrence to that of the current
closure (38.2%) while providing less of
an economic burden. Therefore, this
action minimizes potential economic
impacts without increasing risk to large
whales.
At the conclusion of the October 1,
2014, meeting, the Team, by consensus,
recommended that we modify the
Massachusetts Restricted Area as
proposed by DMF. However, the Team
recommended that NMFS not act on
DMF’s proposed trap/pot storage areas.
The remainder of DMF’s proposal will
be analyzed and discussed with the
Team during its January 2015 meeting.
The Team will provide NMFS a
recommendation at that time on
whether to move forward with the
remaining components of the DMF
proposal.
Changes to American Lobster
Regulations
On April 7, 2014, NMFS published a
final rule (79 FR 19015) that
implemented the Outer Cape Area
lobster haul-out period. In that rule,
NMFS acknowledged in the preamble
that it might need to adjust the closure
dates if Massachusetts ultimately
requested a different time period (See
Response to Comment 22, 78 FR 35217,
June 12, 2013). Now that Massachusetts
has done so, the original Outer Cape
Area lobster closure dates would
become outdated and may create
unintended impacts to Federal lobster
fishers. For example, if NMFS did not
adjust the January 15 start date, Federal
lobster fishers would have to remove
their traps from the Outer Cape Area
two weeks earlier than the February 1
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start date that exists in the
Massachusetts regulations and the Plan.
Therefore, in this rule, NMFS changes
the start date of the Outer Cape Lobster
Management Area closure dates from
January 15 to February 1. Further,
NMFS adjusts the end of the Outer Cape
Area haul-out period by two weeks from
March 15 to March 31, to continue with
a full two-month haul-out period as
dictated by the Commission. NMFS
considered extending the haul-out
period to April 30, to be consistent with
the Plan. However, the southwestern
portion of the Outer Cape Area is not
included in the Plan’s revised closure
area, and would be closed for an
additional month longer than the
Commission’s two-month haul-out
period. Accordingly, NMFS will simply
shift the Outer Cape Area haul-out
period dates ahead by two weeks. After
March 31, lobster trap fishermen in the
Massachusetts Restricted Area will be
held to the more restrictive Plan dates
through April 30.
Comments and Responses
NMFS published the proposed rule
amending the Plan in the Federal
Register on November 6, 2014 (79 FR
65918). Upon its publication, NMFS
issued a press email announcing the
rule; posted the proposed rule on the
Plan Web site; and notified affected
fishermen and interested parties via
several NMFS email distribution outlets.
The publication of the proposed rule
was followed by a 15-day public
comment period, which ended on
November 21, 2014. NMFS received
fourteen substantive comments via
electronic submission. All comments
received were thoroughly reviewed by
NMFS. Comments were in full support
of the action or in partial support of the
action with some concerns. The
comments addressed several topics,
including adequacy of the model, need
for enforcement of the closure, and
confusion over changes to the
Massachusetts Restricted Area closure
vs the Outer Cape Lobster Management
Area closure. The comments received
are summarized below, followed by
NMFS’s responses.
Adequacy of Co-occurrence Model
Comment 1: Several commenters
questioned the adequacy of the cooccurrence model and the data used to
develop the model. They stated that the
data are several years old, may be
flawed, and may not accurately reflect
the current fishing effort in the area.
Response: We believe the information
in the model is accurate but does have
some limitations. We previously
provided model documentation
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describing the fishing effort data upon
which the model relies, including a
detailed discussion of the models
limitations. We plan on updating the
model with more current information as
time allows for future rulemakings. The
data used for this action are the same as
the data used for the June 27, 2014 final
rule implementing the most recent
amendment to the Plan(79 FR 36586).
This allows us to conduct a comparison
between the effects of the new closure
area verses the previously approved
closure area.
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Enforcement
Comment 2: One commenter stated
that NMFS needs to do a better job
enforcing/supporting the Endangered
Species Act and not just rely on the
Marine Mammal Protection Act
measures to reduce entanglements with
lobster gear.
Response: Although NMFS agrees that
law enforcement is a critically
important component to the success of
its conservation measures, NMFS
disagrees with the claim that it relies
solely on the conservation measures
implemented through the Marine
Mammal Protection Act. NMFS has
allocated funding for enforcement of
take reduction plan regulations on an
annual basis through its Endangered
Species Act-based Joint Enforcement
Agreements (JEA) with its state partners
(Maine, New Hampshire, Massachusetts,
Rhode Island, and New Jersey). In
addition, over the past two years NMFS
has also provided additional funding set
aside for law enforcement to investigate
potential ‘‘hot spots.’’ Hot spots are
those areas identified as areas of
concern and in need of additional
enforcement.
Comment 3: One commenter stated
that there is a need for strict
enforcement of the February 1 date for
gear removal. The commenter stated
that the Plan’s requirements require
robust monitoring and enforcement
efforts.
Response: We agree that the efficacy
of the Plan depends on strong
monitoring and enforcement of the
regulations. We work closely with the
U.S. Coast Guard, NOAA Office of Law
Enforcement and state partners through
Joint Enforcement Agreements to
enforce the regulations and we will
continue to do so. We will also conduct
numerous outreach efforts to ensure the
industry knows of the impending
closure and the requirements to remove
gear.
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Changes to Massachusetts Restricted
Area vs Outer Cape Lobster
Management Area
Comment 4: One commenter voiced
confusion over the conflicting dates of
the modified Massachusetts Restricted
Area closure and the adjustment of the
gear haul-out closure period for the
Outer Cape Lobster Management Area.
Response: The February 1–March 31
gear haul-out period in NMFS’s lobster
regulations does not conflict with the
February 1–April 30 modified
Massachusetts Restricted Area closure
period in NMFS’s large whale Plan
regulations. In short, the two closures
pertain to two different, albeit mostly
overlapping areas, which are being
closed for two separate reasons. The
different closure dates maintain the
distinction in their purpose, i.e., the
February 1–March 31 closure benefits
the lobster resource, while the February
1–April 30 closure benefits whales.
Where the lobster and whale areas
overlap, fishers will have to abide by
both closures, including the whale
closure during the month of April.
The final rule will adjust the
Massachusetts Restricted Area closure
area, consistent with the revised timing
and area proposed by the
Commonwealth of Massachusetts. The
revised closure area is expanded by 912
square miles and includes most, but not
all, of the Outer Cape Area. Under the
June 2014 large whale Plan final rule,
only the northern portion of the Outer
Cape Area remained within the
Massachusetts Restricted Area closure
area. Additionally, this action revises
the Massachusetts Restricted Area
closure period to more effectively align
with the co-occurrence model, by
shifting the closure period from January
1–April 30, to February 1–April 30.
Accordingly, we have also shifted the
two-month Outer Cape Area gear haulout period in the Federal lobster
regulations to fall within the threemonth Massachusetts Restricted Area
closure period.
Under the Federal lobster regulations,
the Outer Cape Area is subject to a gear
haul-out period, which requires all
Outer Cape Area lobster trap fishers to
remove their trap gear from this Area
from January 15–March 15 each year.
These dates were adopted in the lobster
regulations because they match the
dates adopted for this purpose in the
Atlantic States Marine Fisheries
Commission’s Interstate Fishery
Management Plan for Lobster and are
consistent with those dates currently in
place by the Commonwealth of
Massachusetts. The intent of the haulout period is to facilitate the
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enforcement of trap limits and is timed
when lobster trap fishing activity in the
area is at a relatively low level.
Before we adopted the gear haul-out
period into the Federal lobster
regulations, as recommended by the
Commission, the Commonwealth of
Massachusetts was considering shifting
the two-month Outer Cape Area haulout period in state waters from the
original January 15–March 15 period, to
February 1–March 31, to better address
the needs of the Outer Cape fishery.
Consequently, in the proposed rule for
this measure, NMFS considered and
sought comment on similarly shifting
the haul-out dates should Massachusetts
ultimately do so (see response to
Comment 22, 78 FR 35217). By the time
the final rule implementing the lobster
management action published in the
Federal Register (April 7, 2014, 79 FR
19015), Massachusetts had not changed
the gear haul-out period, so NMFS
implemented in that rule the dates that
were in place at the time in the
Massachusetts regulations (January 15–
March 15), to be consistent with the
Commonwealth and the Commission’s
Plan. At the time, the start and end dates
of the two-month gear haul-out period
fell within the initial four-month
Massachusetts Restricted Area closure
dates under consideration in the Plan
proposed rule (January 1–April 30). So,
the small portion of the Outer Cape Area
that overlapped into the initial
Massachusetts Restricted Area closure
area would continue to be closed to
lobster traps after the haul-out period
ended, under the Plan, because the
haul-out period would end before the
Plan closure period ends.
Since the lobster gear haul-out
regulations were implemented, the
Commonwealth has come forward with
a comprehensive revision to the
Massachusetts Restricted Area closure
area, which now includes all of the
Outer Cape Area, with the exception of
a small portion located west of 70
degrees north longitude, in Nantucket
Sound. The Massachusetts proposal also
shifts the closure dates for the
Massachusetts Restricted Area closure
to begin on February 1. Therefore, we
have adjusted the lobster regulations
governing the Outer Cape Area gear
haul-out period, so that Outer Cape
lobster trap fishers operating inside the
affected area would not be impacted by
the closure two weeks earlier due to the
fact that the Outer Cape Area gear haulout period is currently set for a January
15 closure. Additionally, we did not
extend the full three-month closure date
to the entire Outer Cape Area, because
we did not want to unnecessarily
impact trap fishers operating in the
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western portion of the Outer Cape Area,
which is outside of the modified
Massachusetts Restricted Area closure
area.
Upon receipt of the Massachusetts
proposal, NMFS assessed the impacts
associated with the revised closure area,
but did not formally assess the potential
impacts in the portion of the Outer Cape
Area that falls outside of the revised
closure area (that area west of 70
degrees north longitude). Additionally,
because the initial assessment on the
Outer Cape Area gear haul out-period
included only a variable two-month
period, NMFS did not have the
information needed to justify aligning
the entire Outer Cape Area gear haul-out
period with the three-month closure
period for the vertical line rule,
particularly because it could potentially
impact those fishers operating in April
in the portion of the Outer Cape Area
that falls outside the vertical line
closure area. Regardless, this final rule
revises the Outer Cape Area lobster trap
gear haul-out period to fall within the
Massachusetts Restricted Area closure
period. Therefore, when the gear haulout period ends on March 15, all traps/
pots (including lobster traps) will
remain prohibited in the Massachusetts
Restricted area through April 30, under
the Plan. Shifting the dates, but
maintaining the length of the two-month
gear haul-out period will prevent those
fishermen fishing in the Outer Cape
Area west of 70 degrees north longitude
from being subject to a three-month
closure, when not required under the
Plan.
NEPA/ESA Analysis
Comment 5: One commenter was
concerned with the analysis the Agency
conducted for this action under the
Endangered Species Act (ESA) and
National Environmental Policy Act
(NEPA) saying that it is not legally
sufficient. The commenter stressed that
future changes to the Plan must be
evaluated using a full and proper NEPA
analysis and reinitiation of the ESA
Section 7 consultation.
Response: We feel the analysis we
conducted for this action is sufficient.
After considering the proposed action,
new information and new
circumstances, we determined that it is
not necessary to supplement the 2014
Plan Final Environmental Impact
Statement (FEIS) and Record of Decision
(ROD) because: (1) the shift of the
closure in time/area and its impacts are
not substantially different from what
was originally considered and analyzed;
and (2) no new information or
circumstances exist that are
significantly different from when the
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ROD was signed on June 20, 2014. The
FEIS and ROD remain valid to support
this action. NMFS has also determined
that it is not necessary to supplement
the American Lobster FMP 2014 FEIS
and ROD because: (1) there are no
additional impacts from shifting the
closure period by two weeks; and (2) no
new information or circumstances exist
that are significantly different from
when the ROD was signed on April 7,
2014. The FEIS and ROD remain valid
to support this action. Also, NMFS
believes that the changes to the rule
amending the Plan do not constitute a
modification to the operation of the Plan
that would cause an effect to ESA-listed
species or critical habitat not considered
in the previous consultations. Therefore,
the proposed measures do not meet the
triggers for reinitiation of consultation.
Should activities under this action
change or new information become
available that changes the basis for this
determination, then consultation should
be reinitiated.
Lack of Management Measures
Comment 6: One commenter was
concerned that there seems to be a lack
of policies for addressing climate
change through adaptive management
when protecting right whales. The
commenter suggests instead of shifting
the date of the closure to begin on
February 1 the Agency should manage
the area using Dynamic Area
Management procedures instead of
opening the whole area to fishing for the
whole month of January.
Response: As stated in response to
similar comments in the June 27, 2014
final rule, we acknowledge that it is
challenging to manage resources in the
face of changing environmental
conditions. The Plan is an evolving Plan
and should NMFS discover that
conservation measures are no longer
appropriate as a result of climate change
and shifting baselines, we have the
ability to make changes to the measures.
Comment 7: One commenter
supported the closure but wanted the
measures to extend to the gillnet fishery.
Response: As we have stated in
response to comments on the June 27,
2014 final rule, including gillnets in the
recent management measures was
analyzed in the FEIS and rejected (See
Chapter 3, Appendix 3–A of the May
2014 FEIS). The co-occurrence model
shows that 99% of the vertical lines
coastwide are from lobster trap/pot and
other trap/pot fisheries. For this reason,
we chose to focus this closure (and
recent management measures) on trap/
pot gear only.
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Classification
The Office of Management and Budget
(OMB) has determined that this action
is not significant for the purposes of
Executive Order 12866.
The Chief Counsel for Regulation of
the Department of Commerce has
certified to the Chief Counsel for
Advocacy of the Small Business
Administration (SBA) that this final rule
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for this
certification was published with the
proposed rule and is not repeated here.
No comments were received regarding
the economic impact of this final rule.
As a result, a final regulatory flexibility
analysis is not required and one was not
prepared.
The Assistant Administrator finds
good cause under 5 U.S.C. 553(d)(3) to
waive the 30-day delay in effectiveness.
The contents of this action serve to
remove existing commercial fishing
restrictions and to prevent negative
economic impacts from otherwise
occurring as the Massachusetts
Restricted Area would have been
effective beginning January 1, 2014.
Delaying the effectiveness of this rule is
contrary to the public interest, because
any delay will prevent the additional
fishery activities implemented by this
rule, thereby reducing revenues, and
providing no additional meaningful
benefit to large whales. Accordingly, the
30-day delay in effectiveness is both
unnecessary and contrary to the public
interest, and as such, this rule will
become effective immediately.
List of Subjects
50 CFR Part 229
Administrative practice and
procedure, Confidential business
information, Fisheries, Marine
mammals, Reporting and recordkeeping
requirements.
50 CFR Part 697
Fisheries, fishing.
Dated: December 8, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR parts 229 and 697 are
amended to read as follows:
PART 229—AUTHORIZATION FOR
COMMERCIAL FISHERIES UNDER THE
MARINE MAMMAL PROTECTION ACT
OF 1972
1. The authority citation for 50 CFR
part 229 continues to read as follows:
■
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Authority: 16 U.S.C. 1361 et seq.;
§ 229.32(f) also issued under 16 U.S.C. 1531
et seq.
2. In § 229.32, paragraph (c)(3) is
revised to read as follows:
■
*
*
*
*
(c) * * *
(3) Massachusetts Restricted Area—(i)
Area. The Massachusetts restricted area
is bounded by the following points
connected by straight lines in the order
listed, and bounded on the west by the
shoreline of Cape Cod, Massachusetts.
Point
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MRA1
MRA2
MRA3
MRA4
MRA5
MRA6
MRA7
....
....
....
....
....
....
....
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N. lat.
W. long.
42°12′
42°12′
42°30′
42°30′
41°56.5′
41°21.5′
41°15.3′
70°44′
70°30′
70°30′
69°45′
69°45′
69°16′
69°57.9′
14:38 Dec 11, 2014
Jkt 235001
N. lat.
W. long.
MRA8 ....
MRA9 ....
41°20.3′
41°40.2′
70°00′
70°00′
PART 697—ATLANTIC COASTAL
FISHERIES COOPERATIVE
MANAGEMENT
3. The authority citation for part 697
continues to read as follows:
■
§ 229.32 Atlantic large whale take
reduction plan regulations.
*
Point
(ii) Closure. From February 1 to April
30, it is prohibited to fish with, set, or
possess trap/pot gear in this area unless
stowed in accordance with § 229.2.
(iii) Area-specific gear or vessel
requirements. From May 1 through
January 31, no person or vessel may fish
with or possess trap/pot gear in the
Massachusetts Restricted Area unless
that gear complies with the gear
marking requirements specified in
paragraph (b) of this section, the
universal trap/pot gear requirements
specified in paragraph (c)(1) of this
section, and the area-specific
requirements listed in (c)(2) of this
section, or unless the gear is stowed as
specified in § 229.2.
*
*
*
*
*
PO 00000
Frm 00052
Fmt 4700
Sfmt 9990
Authority: 16 U.S.C. 5101 et seq.
4. In § 697.7, revise paragraph
(c)(1)(xxx) introductory text to read as
follows:
■
§ 697.7
Prohibitions.
*
*
*
*
*
(c) * * *
(1) * * *
(xxx) Outer Cape Area seasonal
closure. The Federal waters of the Outer
Cape Area shall be closed to lobster
fishing with traps by Federal lobster
permit holders from February 1 through
March 31.
*
*
*
*
*
[FR Doc. 2014–29195 Filed 12–11–14; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\12DER1.SGM
12DER1
Agencies
[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Rules and Regulations]
[Pages 73848-73852]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29195]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 229 and 697
[Docket No. 141002823-4999-02]
RIN 0648-BE57
Taking of Marine Mammals Incidental to Commercial Fishing
Operations and Atlantic Coastal Fisheries Cooperative Management Act
Provisions; American Lobster Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to amend the regulations
implementing the Atlantic Large Whale Take Reduction Plan to modify the
start date of the Massachusetts Restricted Area to begin on February 1,
2015, and to expand the Massachusetts Restricted Area by 912 square
miles. In addition, this rule will revise the Federal lobster
regulations to be consistent with the revised start date of the
Massachusetts Restricted Area. Recent Federal lobster regulations
closed the Outer Cape Lobster Management Area to lobster trap fishing
from January 15 through March 15, which is consistent with the lobster
trap haul-out period in the Atlantic States Marine Fisheries
Commission's Interstate Fishery Management Plan for American Lobster.
This rule would adjust the Outer Cape Lobster Management Area closure
dates to February 1 through March 31.
DATES: Effective December 12, 2014.
ADDRESSES: Copies of the supporting documents for this action, as well
as the Atlantic Large Whale Take Reduction Team meeting summaries and
supporting documents, may be obtained from the Plan Web site (https://www.greateratlantic.fisheries.noaa.gov/protected/whaletrp/)
or by writing to Kate Swails, NMFS, Greater Atlantic Regional Fisheries
Office, Protected Resources Division, 55 Great Republic Drive,
Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Kate Swails, NMFS Greater Atlantic
Regional Fisheries, 978-282-8481, Kate.Swails@noaa.gov; or, Kristy
Long, NMFS Office of Protected Resources, 206-526-4792,
Kristy.Long@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
This final rule combines two regulatory modifications that are
authorized under different statutes. Specifically, this action amends
the regulations implementing: (1) The Atlantic Large Whale Plan (Plan)
regulations found at 50 CFR part 229 under the authority of the MMPA;
and (2) the Federal American lobster Fishery Management Plan
regulations found at 50 CFR part 697 under the authority of the
Atlantic Coastal Fisheries Cooperative Management Act.
NMFS published a final rule implementing an amendment to the Plan
on June 27, 2014 (79 FR 36586) to address large whale entanglement
risks associated with vertical line (or buoy lines) from commercial
trap/pot fisheries. That amendment included gear modifications, gear
setting requirements, a seasonal closure (Massachusetts Restricted
Area) and gear marking for both the trap/pot and the gillnet fisheries.
The Massachusetts Restricted Area is a seasonal closure effective
January 1 through April 30 for all trap/pot fisheries. Trap/pot
fisheries account for the largest number of vertical lines in the water
column.
In September 2010, in consultation with the Atlantic Large Whale
Take Reduction Team (Team), NMFS developed protocols for considering
modifications or exemptions to the regulations implementing the Plan.
Following these protocols, on August 18, 2014, the Massachusetts
Division of Marine Fisheries (DMF) submitted a proposal to modify the
Massachusetts Restricted Area and exempt several areas from the gear
setting requirements to address safety and economic
[[Page 73849]]
concerns raised by Massachusetts fishermen.
Review of Massachusetts Restricted Area
The proposal submitted by DMF contains two components:
(1) Modify the Massachusetts Restricted Area (closure), which
begins on January 1, 2015 by:
[cir] Modifying the timing and size of the closure.
[cir] Establishing gear stowage areas during a portion of the
closure.
(2) Establish several exemption areas to the current minimum number
of traps per trawl requirement, which take effect June 1, 2015.
[cir] Exemption areas would include portions of Southern New
England waters (Buzzards Bay, Vineyard Sound, and Nantucket Sound) as
well as state waters north and east of Cape Cod.
Given the importance of addressing the closure before it begins on
January 1, 2015, and the time needed to complete the analysis of the
entire suite of requests contained in the entire DMF proposal, NMFS
decided to address the modifications to the closure and the exemption
of the minimum number of traps per trawl requirements separately.
Changes to the Plan
This action modifies the start date of the closure to begin on
February 1, 2015 and expand the area by 912 square miles. This action
responds to comments to improve the past action while balancing risk
reduction considerations. Specifically, the action decreases the number
of affected vessels and results in reductions in compliance costs while
maintaining the same entanglement risk reduction as provided in the
June 2014 amendment to the Plan.
At its October 1, 2014 meeting, the Team discussed the requested
modifications to the closure, as well as the creation of the trap/pot
storage areas. The discussion included a review of the merits and
analysis of the DMF proposal utilizing NMFS's co-occurrence model. The
model incorporates information on geographic and temporal variations in
fishing effort and the distribution of fishing line, as well as whale
sightings per unit of survey effort, and identifies areas and times at
which whales and commercial fishing gear are likely to co-occur. The
model's final product is a set of indicators that provide information
on factors that contribute to the risk of entanglement at various
locations and at different points in time. These indicators, in
particular the number of vertical lines in an area and the area's co-
occurrence score, assumed to be related to the relative entanglement
risk in different locations. They also provide a basis for comparing
the impact of alternative management measures on the potential for
entanglements to occur.
NMFS compared the impacts of the current and new closure areas for
conservation benefit using its co-occurrence model and economic
analysis. The methods and data sources used in this analysis are
consistent with those applied in the Final Environmental Impact
Statement (FEIS) for the 2014 Plan amendments referred to above. The
changes to the closure would allow approximately 125 vessels to
continue to fish during a lucrative time of year for the fishing
industry and would require a slightly greater number of vessels to
suspend activity from February through April. This is because the new
closure area is larger than the current closure area, an increase of
912 square miles. On average, the new closure area offers a similar
reduction in co-occurrence to that of the current closure (38.2%) while
providing less of an economic burden. Therefore, this action minimizes
potential economic impacts without increasing risk to large whales.
At the conclusion of the October 1, 2014, meeting, the Team, by
consensus, recommended that we modify the Massachusetts Restricted Area
as proposed by DMF. However, the Team recommended that NMFS not act on
DMF's proposed trap/pot storage areas. The remainder of DMF's proposal
will be analyzed and discussed with the Team during its January 2015
meeting. The Team will provide NMFS a recommendation at that time on
whether to move forward with the remaining components of the DMF
proposal.
Changes to American Lobster Regulations
On April 7, 2014, NMFS published a final rule (79 FR 19015) that
implemented the Outer Cape Area lobster haul-out period. In that rule,
NMFS acknowledged in the preamble that it might need to adjust the
closure dates if Massachusetts ultimately requested a different time
period (See Response to Comment 22, 78 FR 35217, June 12, 2013). Now
that Massachusetts has done so, the original Outer Cape Area lobster
closure dates would become outdated and may create unintended impacts
to Federal lobster fishers. For example, if NMFS did not adjust the
January 15 start date, Federal lobster fishers would have to remove
their traps from the Outer Cape Area two weeks earlier than the
February 1 start date that exists in the Massachusetts regulations and
the Plan. Therefore, in this rule, NMFS changes the start date of the
Outer Cape Lobster Management Area closure dates from January 15 to
February 1. Further, NMFS adjusts the end of the Outer Cape Area haul-
out period by two weeks from March 15 to March 31, to continue with a
full two-month haul-out period as dictated by the Commission. NMFS
considered extending the haul-out period to April 30, to be consistent
with the Plan. However, the southwestern portion of the Outer Cape Area
is not included in the Plan's revised closure area, and would be closed
for an additional month longer than the Commission's two-month haul-out
period. Accordingly, NMFS will simply shift the Outer Cape Area haul-
out period dates ahead by two weeks. After March 31, lobster trap
fishermen in the Massachusetts Restricted Area will be held to the more
restrictive Plan dates through April 30.
Comments and Responses
NMFS published the proposed rule amending the Plan in the Federal
Register on November 6, 2014 (79 FR 65918). Upon its publication, NMFS
issued a press email announcing the rule; posted the proposed rule on
the Plan Web site; and notified affected fishermen and interested
parties via several NMFS email distribution outlets. The publication of
the proposed rule was followed by a 15-day public comment period, which
ended on November 21, 2014. NMFS received fourteen substantive comments
via electronic submission. All comments received were thoroughly
reviewed by NMFS. Comments were in full support of the action or in
partial support of the action with some concerns. The comments
addressed several topics, including adequacy of the model, need for
enforcement of the closure, and confusion over changes to the
Massachusetts Restricted Area closure vs the Outer Cape Lobster
Management Area closure. The comments received are summarized below,
followed by NMFS's responses.
Adequacy of Co-occurrence Model
Comment 1: Several commenters questioned the adequacy of the co-
occurrence model and the data used to develop the model. They stated
that the data are several years old, may be flawed, and may not
accurately reflect the current fishing effort in the area.
Response: We believe the information in the model is accurate but
does have some limitations. We previously provided model documentation
[[Page 73850]]
describing the fishing effort data upon which the model relies,
including a detailed discussion of the models limitations. We plan on
updating the model with more current information as time allows for
future rulemakings. The data used for this action are the same as the
data used for the June 27, 2014 final rule implementing the most recent
amendment to the Plan(79 FR 36586). This allows us to conduct a
comparison between the effects of the new closure area verses the
previously approved closure area.
Enforcement
Comment 2: One commenter stated that NMFS needs to do a better job
enforcing/supporting the Endangered Species Act and not just rely on
the Marine Mammal Protection Act measures to reduce entanglements with
lobster gear.
Response: Although NMFS agrees that law enforcement is a critically
important component to the success of its conservation measures, NMFS
disagrees with the claim that it relies solely on the conservation
measures implemented through the Marine Mammal Protection Act. NMFS has
allocated funding for enforcement of take reduction plan regulations on
an annual basis through its Endangered Species Act-based Joint
Enforcement Agreements (JEA) with its state partners (Maine, New
Hampshire, Massachusetts, Rhode Island, and New Jersey). In addition,
over the past two years NMFS has also provided additional funding set
aside for law enforcement to investigate potential ``hot spots.'' Hot
spots are those areas identified as areas of concern and in need of
additional enforcement.
Comment 3: One commenter stated that there is a need for strict
enforcement of the February 1 date for gear removal. The commenter
stated that the Plan's requirements require robust monitoring and
enforcement efforts.
Response: We agree that the efficacy of the Plan depends on strong
monitoring and enforcement of the regulations. We work closely with the
U.S. Coast Guard, NOAA Office of Law Enforcement and state partners
through Joint Enforcement Agreements to enforce the regulations and we
will continue to do so. We will also conduct numerous outreach efforts
to ensure the industry knows of the impending closure and the
requirements to remove gear.
Changes to Massachusetts Restricted Area vs Outer Cape Lobster
Management Area
Comment 4: One commenter voiced confusion over the conflicting
dates of the modified Massachusetts Restricted Area closure and the
adjustment of the gear haul-out closure period for the Outer Cape
Lobster Management Area.
Response: The February 1-March 31 gear haul-out period in NMFS's
lobster regulations does not conflict with the February 1-April 30
modified Massachusetts Restricted Area closure period in NMFS's large
whale Plan regulations. In short, the two closures pertain to two
different, albeit mostly overlapping areas, which are being closed for
two separate reasons. The different closure dates maintain the
distinction in their purpose, i.e., the February 1-March 31 closure
benefits the lobster resource, while the February 1-April 30 closure
benefits whales. Where the lobster and whale areas overlap, fishers
will have to abide by both closures, including the whale closure during
the month of April.
The final rule will adjust the Massachusetts Restricted Area
closure area, consistent with the revised timing and area proposed by
the Commonwealth of Massachusetts. The revised closure area is expanded
by 912 square miles and includes most, but not all, of the Outer Cape
Area. Under the June 2014 large whale Plan final rule, only the
northern portion of the Outer Cape Area remained within the
Massachusetts Restricted Area closure area. Additionally, this action
revises the Massachusetts Restricted Area closure period to more
effectively align with the co-occurrence model, by shifting the closure
period from January 1-April 30, to February 1-April 30. Accordingly, we
have also shifted the two-month Outer Cape Area gear haul-out period in
the Federal lobster regulations to fall within the three-month
Massachusetts Restricted Area closure period.
Under the Federal lobster regulations, the Outer Cape Area is
subject to a gear haul-out period, which requires all Outer Cape Area
lobster trap fishers to remove their trap gear from this Area from
January 15-March 15 each year. These dates were adopted in the lobster
regulations because they match the dates adopted for this purpose in
the Atlantic States Marine Fisheries Commission's Interstate Fishery
Management Plan for Lobster and are consistent with those dates
currently in place by the Commonwealth of Massachusetts. The intent of
the haul-out period is to facilitate the enforcement of trap limits and
is timed when lobster trap fishing activity in the area is at a
relatively low level.
Before we adopted the gear haul-out period into the Federal lobster
regulations, as recommended by the Commission, the Commonwealth of
Massachusetts was considering shifting the two-month Outer Cape Area
haul-out period in state waters from the original January 15-March 15
period, to February 1-March 31, to better address the needs of the
Outer Cape fishery. Consequently, in the proposed rule for this
measure, NMFS considered and sought comment on similarly shifting the
haul-out dates should Massachusetts ultimately do so (see response to
Comment 22, 78 FR 35217). By the time the final rule implementing the
lobster management action published in the Federal Register (April 7,
2014, 79 FR 19015), Massachusetts had not changed the gear haul-out
period, so NMFS implemented in that rule the dates that were in place
at the time in the Massachusetts regulations (January 15-March 15), to
be consistent with the Commonwealth and the Commission's Plan. At the
time, the start and end dates of the two-month gear haul-out period
fell within the initial four-month Massachusetts Restricted Area
closure dates under consideration in the Plan proposed rule (January 1-
April 30). So, the small portion of the Outer Cape Area that overlapped
into the initial Massachusetts Restricted Area closure area would
continue to be closed to lobster traps after the haul-out period ended,
under the Plan, because the haul-out period would end before the Plan
closure period ends.
Since the lobster gear haul-out regulations were implemented, the
Commonwealth has come forward with a comprehensive revision to the
Massachusetts Restricted Area closure area, which now includes all of
the Outer Cape Area, with the exception of a small portion located west
of 70 degrees north longitude, in Nantucket Sound. The Massachusetts
proposal also shifts the closure dates for the Massachusetts Restricted
Area closure to begin on February 1. Therefore, we have adjusted the
lobster regulations governing the Outer Cape Area gear haul-out period,
so that Outer Cape lobster trap fishers operating inside the affected
area would not be impacted by the closure two weeks earlier due to the
fact that the Outer Cape Area gear haul-out period is currently set for
a January 15 closure. Additionally, we did not extend the full three-
month closure date to the entire Outer Cape Area, because we did not
want to unnecessarily impact trap fishers operating in the
[[Page 73851]]
western portion of the Outer Cape Area, which is outside of the
modified Massachusetts Restricted Area closure area.
Upon receipt of the Massachusetts proposal, NMFS assessed the
impacts associated with the revised closure area, but did not formally
assess the potential impacts in the portion of the Outer Cape Area that
falls outside of the revised closure area (that area west of 70 degrees
north longitude). Additionally, because the initial assessment on the
Outer Cape Area gear haul out-period included only a variable two-month
period, NMFS did not have the information needed to justify aligning
the entire Outer Cape Area gear haul-out period with the three-month
closure period for the vertical line rule, particularly because it
could potentially impact those fishers operating in April in the
portion of the Outer Cape Area that falls outside the vertical line
closure area. Regardless, this final rule revises the Outer Cape Area
lobster trap gear haul-out period to fall within the Massachusetts
Restricted Area closure period. Therefore, when the gear haul-out
period ends on March 15, all traps/pots (including lobster traps) will
remain prohibited in the Massachusetts Restricted area through April
30, under the Plan. Shifting the dates, but maintaining the length of
the two-month gear haul-out period will prevent those fishermen fishing
in the Outer Cape Area west of 70 degrees north longitude from being
subject to a three-month closure, when not required under the Plan.
NEPA/ESA Analysis
Comment 5: One commenter was concerned with the analysis the Agency
conducted for this action under the Endangered Species Act (ESA) and
National Environmental Policy Act (NEPA) saying that it is not legally
sufficient. The commenter stressed that future changes to the Plan must
be evaluated using a full and proper NEPA analysis and reinitiation of
the ESA Section 7 consultation.
Response: We feel the analysis we conducted for this action is
sufficient. After considering the proposed action, new information and
new circumstances, we determined that it is not necessary to supplement
the 2014 Plan Final Environmental Impact Statement (FEIS) and Record of
Decision (ROD) because: (1) the shift of the closure in time/area and
its impacts are not substantially different from what was originally
considered and analyzed; and (2) no new information or circumstances
exist that are significantly different from when the ROD was signed on
June 20, 2014. The FEIS and ROD remain valid to support this action.
NMFS has also determined that it is not necessary to supplement the
American Lobster FMP 2014 FEIS and ROD because: (1) there are no
additional impacts from shifting the closure period by two weeks; and
(2) no new information or circumstances exist that are significantly
different from when the ROD was signed on April 7, 2014. The FEIS and
ROD remain valid to support this action. Also, NMFS believes that the
changes to the rule amending the Plan do not constitute a modification
to the operation of the Plan that would cause an effect to ESA-listed
species or critical habitat not considered in the previous
consultations. Therefore, the proposed measures do not meet the
triggers for reinitiation of consultation. Should activities under this
action change or new information become available that changes the
basis for this determination, then consultation should be reinitiated.
Lack of Management Measures
Comment 6: One commenter was concerned that there seems to be a
lack of policies for addressing climate change through adaptive
management when protecting right whales. The commenter suggests instead
of shifting the date of the closure to begin on February 1 the Agency
should manage the area using Dynamic Area Management procedures instead
of opening the whole area to fishing for the whole month of January.
Response: As stated in response to similar comments in the June 27,
2014 final rule, we acknowledge that it is challenging to manage
resources in the face of changing environmental conditions. The Plan is
an evolving Plan and should NMFS discover that conservation measures
are no longer appropriate as a result of climate change and shifting
baselines, we have the ability to make changes to the measures.
Comment 7: One commenter supported the closure but wanted the
measures to extend to the gillnet fishery.
Response: As we have stated in response to comments on the June 27,
2014 final rule, including gillnets in the recent management measures
was analyzed in the FEIS and rejected (See Chapter 3, Appendix 3-A of
the May 2014 FEIS). The co-occurrence model shows that 99% of the
vertical lines coastwide are from lobster trap/pot and other trap/pot
fisheries. For this reason, we chose to focus this closure (and recent
management measures) on trap/pot gear only.
Classification
The Office of Management and Budget (OMB) has determined that this
action is not significant for the purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this final rule would not have a significant
economic impact on a substantial number of small entities. The factual
basis for this certification was published with the proposed rule and
is not repeated here. No comments were received regarding the economic
impact of this final rule. As a result, a final regulatory flexibility
analysis is not required and one was not prepared.
The Assistant Administrator finds good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in effectiveness. The contents of
this action serve to remove existing commercial fishing restrictions
and to prevent negative economic impacts from otherwise occurring as
the Massachusetts Restricted Area would have been effective beginning
January 1, 2014. Delaying the effectiveness of this rule is contrary to
the public interest, because any delay will prevent the additional
fishery activities implemented by this rule, thereby reducing revenues,
and providing no additional meaningful benefit to large whales.
Accordingly, the 30-day delay in effectiveness is both unnecessary and
contrary to the public interest, and as such, this rule will become
effective immediately.
List of Subjects
50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
50 CFR Part 697
Fisheries, fishing.
Dated: December 8, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 229 and 697
are amended to read 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:
[[Page 73852]]
Authority: 16 U.S.C. 1361 et seq.; Sec. 229.32(f) also issued
under 16 U.S.C. 1531 et seq.
0
2. In Sec. 229.32, paragraph (c)(3) is revised to read as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(c) * * *
(3) Massachusetts Restricted Area--(i) Area. The Massachusetts
restricted area is bounded by the following points connected by
straight lines in the order listed, and bounded on the west by the
shoreline of Cape Cod, Massachusetts.
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
MRA1.................................... 42[deg]12' 70[deg]44'
MRA2.................................... 42[deg]12' 70[deg]30'
MRA3.................................... 42[deg]30' 70[deg]30'
MRA4.................................... 42[deg]30' 69[deg]45'
MRA5.................................... 41[deg]56.5' 69[deg]45'
MRA6.................................... 41[deg]21.5' 69[deg]16'
MRA7.................................... 41[deg]15.3' 69[deg]57.9'
MRA8.................................... 41[deg]20.3' 70[deg]00'
MRA9.................................... 41[deg]40.2' 70[deg]00'
------------------------------------------------------------------------
(ii) Closure. From February 1 to April 30, it is prohibited to fish
with, set, or possess trap/pot gear in this area unless stowed in
accordance with Sec. 229.2.
(iii) Area-specific gear or vessel requirements. From May 1 through
January 31, no person or vessel may fish with or possess trap/pot gear
in the Massachusetts Restricted Area unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
of this section, and the area-specific requirements listed in (c)(2) of
this section, or unless the gear is stowed as specified in Sec. 229.2.
* * * * *
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
0
3. The authority citation for part 697 continues to read as follows:
Authority: 16 U.S.C. 5101 et seq.
0
4. In Sec. 697.7, revise paragraph (c)(1)(xxx) introductory text to
read as follows:
Sec. 697.7 Prohibitions.
* * * * *
(c) * * *
(1) * * *
(xxx) Outer Cape Area seasonal closure. The Federal waters of the
Outer Cape Area shall be closed to lobster fishing with traps by
Federal lobster permit holders from February 1 through March 31.
* * * * *
[FR Doc. 2014-29195 Filed 12-11-14; 8:45 am]
BILLING CODE 3510-22-P