Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, 7362-7369 [2023-02185]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Rules and Regulations]
[Pages 7362-7369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02185]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. FR-230130-0030]
RIN 0648-BM05


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; emergency final rule.

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SUMMARY: NMFS is extending a temporary emergency rule to prohibit trap/
pot fishery buoy lines between federal and state waters within the 
Massachusetts Restricted Area (MRA) from February through April 2023 to 
reduce the incidental mortality and serious injury of North Atlantic 
right whales (Eubalaena glacialis) in commercial lobster and Jonah crab 
trap/pot fisheries. This emergency rule extension is necessary to 
reduce the risk of right whale mortality and serious injury caused by 
buoy lines in an area with a high co-occurrence of whales and buoy 
lines.

DATES: Effective February 1, 2023 through April 30, 2023.

ADDRESSES: Copies of the documents associated with this emergency rule 
are available at https://www.fisheries.noaa.gov/alwtrp or by emailing 
Marisa Trego at [email protected].

FOR FURTHER INFORMATION CONTACT: Marisa Trego, 978-282-8484, 
[email protected], Colleen Coogan, 978 281-9181, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

Background
Justification for Emergency Action
Emergency Measures
Classification
References

Background

    The North Atlantic right whale (Eubalaena glacialis, hereafter 
referred to as right whale) population has been in decline since 2010, 
with the most recent published estimate of right whale population size 
in 2019 at 368 whales (95 percent confidence interval: 356-378) with a 
strong male bias (Pace et al. 2017, Pace 2021). Data from 2020 and 2021 
suggest the decline has continued and that fewer than 350 individuals 
remain (Pettis et al. 2022). The steep population decline is a result 
of high levels of human-caused mortality caused by entanglement in 
fishing gear and vessel strikes in both the U.S. and Canada. An Unusual 
Mortality Event was declared for the population in 2017, as a result of 
high rates of vessel strikes and entanglement in fishing gear. As of 
January 11, 2023, the Event includes 35 detected mortalities (17 in 
2017, 3 in 2018, 10 in 2019, 2 in 2020, 2 in 2021, 0 in 2022, and, 
tentatively, 1 in 2023). In addition, 21 serious injuries were 
documented (2 in 2017, 5 in 2018, 1 in 2019, 4 in 2020, 5 in 2021, 4 in 
2022, and, tentatively, 1 in 2023). Lastly, 37 morbidity (or sublethal 
injury or illness) cases were documented (12 in 2017, 10 in 2018, 7 in 
2019, 5 in 2020, 1 in 2021, and 2 in 2022); see: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event). Population models 
estimate that 64 percent of all mortalities are not observed and not 
accounted for in the right whale observed incident data (Pace 2021, 
Pace et al. 2021).
    The North Atlantic right whale is listed as an endangered species 
under the Endangered Species Act (ESA), and considered a strategic 
stock under the Marine Mammal Protection Act (MMPA). NMFS is required 
by the MMPA to reduce mortality and serious injury incidental to 
commercial fishing to below a stock's potential biological removal 
(PBR) level. This is defined as the maximum number of animals that can 
be removed annually, while allowing a marine mammal stock to reach or 
maintain its optimal sustainable population level. PBR for the North 
Atlantic right whale population is 0.7 whales per year in the most 
recently published stock assessment report (Hayes et al. 2022). Between 
2010 and 2021, there has not been one year where observed mortality and 
serious injury of right whales fell below a PBR of 0.7. With the total 
estimated mortality well above this number, additional measures are 
urgently needed to reduce the impact of U.S. Atlantic fisheries on 
right whales.
    The Atlantic Large Whale Take Reduction Plan (``Plan'' or ALWTRP) 
was originally developed pursuant to section 118 of the MMPA (16 U.S.C. 
1387) to reduce mortality and serious injury of three stocks of large 
whales (fin, humpback, and North Atlantic right) incidental to certain 
Category I and II fisheries. Under the MMPA, a strategic stock of 
marine mammals is defined as a stock: (1) For which the level of direct 
human-caused mortality exceeds the PBR level; (2) which, based on the 
best available scientific information, is declining and is likely to be 
listed as a threatened species under the ESA within the foreseeable 
future; or (3) which is listed as a threatened or endangered species 
under the ESA or is designated as depleted under the MMPA (16 U.S.C. 
1362(19)). When incidental mortality or serious injury of marine 
mammals from commercial fishing exceeds a stock's PBR level, the MMPA 
directs NMFS to convene a take reduction team of stakeholders that 
includes the following: Representatives of Federal agencies; each 
coastal state that has fisheries interacting with the species or stock; 
appropriate Regional Fishery Management Councils; interstate fisheries 
commissions; academic and scientific organizations; environmental 
groups; all commercial and recreational fisheries groups using gear 
types that incidentally take the species or stock; and, if relevant, 
Alaska Native organizations or Indian tribal organizations.\1\
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    \1\ There are no Alaska Native or Indian tribal organizations 
participating in fisheries managed under the Atlantic Large Whale 
Take Reduction Team.
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    The Atlantic Large Whale Take Reduction Team (ALWTRT) was 
established in 1996 and has 60 members, including approximately 22 
trap/pot and gillnet fishermen or fishery representatives. The 
background for the take reduction planning process and initial 
development of the Plan is provided in the preambles to the proposed 
(62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22, 
1997), and final (64 FR 7529, February 16, 1999) rules implementing the 
initial plan. The ALWTRT met and recommended modifications to the 
ALWTRP, implemented by NMFS through rulemaking, several times since 
1997 in an ongoing effort to meet the MMPA take reduction goals.
    Mortalities and serious injuries of right whales confirmed in U.S. 
fishing gear or first seen in U.S. waters with an entanglement continue 
at levels exceeding the right whale's PBR. NMFS informed the ALWTRT in 
late 2017 that it was necessary to reconvene to develop recommendations 
to reduce the impacts of U.S. commercial fisheries on large whales, 
with a focus on reducing risk to the declining North Atlantic right 
whale population. During an ALWTRT meeting in April 2019, the ALWTRT 
recommended a framework of measures to modify lobster and Jonah crab 
trap/pot trawls within the Northeast Region

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Trap/Pot Management Area (Northeast Region). The recommended measures 
intended to reduce risk of mortality and serious injury to right whales 
incidentally entangled in buoy lines in those fisheries by at least 60 
percent. At that time, this was the best estimate of the minimum amount 
of risk necessary to get annual mortality and serious injury rates 
below PBR based on observed entanglements. NMFS published a Final 
Environmental Impact Statement (FEIS) on July 2, 2021 (86 FR 35288), 
with a 30-day comment period. The Record of Decision was signed on 
August 30, 2021, and the final rule was published on September 17, 2021 
(86 FR 51970). The new rule was estimated to meet the minimum 60-
percent reduction in risk recommended by the ALWTRT in 2019. Further 
detail on right whale population estimates, the stock's decline, 
changes in distribution and reproductive rates, as well as 
entanglement-related mortalities and serious injuries that have been 
documented in recent years can be found in Chapters 2 and 4 of the FEIS 
(NMFS 2021b) and the preamble to the 2021 final rule (86 FR 51970; 
September 17, 2021).
    The 2021 final rule (86 FR 51970, September 17, 2021) left a 
critical gap in protection of right whales within the MRA, as suggested 
by sighting data that indicate a high risk of overlap between right 
whales and buoy lines. The 2021 expansion of the geographic extent of 
the MRA, to include Massachusetts state waters north to the New 
Hampshire border (Figure 1) mirrored the Massachusetts 2021 
modification of the state water closure (322 CMR 12.04(2)). The 
implementation of the MRA Expansion, allowed approximately 200 mi\2\ 
(518 km\2\) of federal waters to remain open to trap/pot fishing 
between state and federal closures. This created the ``MRA Wedge'' 
(Figure 1). Center for Coastal Studies (CCS) survey data from 2021 and 
2022 indicate that trap/pot gear was concentrated in the MRA Wedge 
during the closure period (Figure 2). Additionally, CCS and the 
Northeast Fisheries Science Center (NEFSC) observed right whales within 
this wedge alongside the presence of aggregated fishing gear during 
aerial surveys in April 2021, and March and April of 2022. In early 
2022, NMFS received letters and emails from Massachusetts Division of 
Marine Fisheries (MA DMF), Stellwagen Bank National Marine Sanctuary, 
and non-governmental organizations expressing concerns about this gap 
in restricted waters and the heightened risk of entanglement for right 
whales. After reviewing available information and due to the high risk 
of entanglement in this relatively small area, NMFS issued an emergency 
rule prohibiting trap/pot fishery buoy lines between federal and state 
waters within the MRA for the month of April in 2022 (87 FR 11590; 
March 2, 2022).
    On December 12, 2022, MA DMF requested that NMFS extend the MRA 
Wedge closure into 2023 and 2024, or until new long-term measures are 
implemented. On January 4, 2023, following the signing of the 
Consolidated Appropriations Act, MA DMF reiterated their concerns about 
the MRA Wedge and indicated full support for an annual closure of the 
area from February through May, or as long as the adjacent areas (i.e., 
Federal or state waters) remain closed. Further, on January 10, 2023, 
MA DMF notified the fishing community of our intent to implement an 
emergency closure of the MRA Wedge imminently. The critical gap in 
protection for right whales persists seasonally for the period of 
February through April of this year; thus, this rule is an extension of 
the 2022 emergency rule.

Justification for Emergency Action

    At the time of the 2022 emergency action, NMFS had already begun 
the rulemaking process for a second round of modifications to the 
ALWTRP, because new population information indicated a need for further 
risk reduction to reduce mortality and serious injury of right whales 
below PBR in U.S. commercial fisheries. Concurrently, NMFS faced 
litigation on the 2021 Batched Fisheries Biological Opinion issued 
under the ESA and the 2021 amendment to the ALWTRP issued under the 
MMPA (86 FR 51970; September 17, 2021). On July 8, 2022, the District 
Court for the District of Columbia held that the 2021 final ALWTRP rule 
violated the MMPA for failing to include measures expected to reduce 
mortality and serious injury to below the PBR level within six months 
of implementation. (Center for Biological Diversity, et al., v. 
Raimondo, et al., (Civ. No. 18-112 (D.D.C.)). As a result, on September 
9, 2022, NMFS announced it was scoping in advance of additional 
rulemaking (87 FR 55405) to meet its MMPA mandate as described by the 
Court's decision. Then, on November 17, 2022, the Court ordered NMFS to 
promulgate a new MMPA compliant ALWTRP rule by December 9, 2024. 
(Center for Biological Diversity, et al., v. Raimondo, et al., (Civ. 
No. 18-112 (D.D.C.)).
    When the 2022 emergency rule was published, NMFS anticipated that 
the upcoming modifications to the ALWTRP would address the risk 
associated with the lack of seasonal restrictions in the MRA Wedge. 
However, in light of the Court's decisions, an ALWTRP rule addressing 
the MRA Wedge area was not feasible by February 2023, given that the 
Court instructed NMFS to promulgate the ALWTRP amendment with measures 
necessary to meet the PBR level within 6 months of implementation and 
the ALWTRT had not completed deliberations on recommended measures 
until December 2, 2022. Accordingly, the risk associated with a lack of 
seasonal restrictions in the MRA Wedge could not be feasibly addressed 
by an ALWTRP amendment in time to mitigate an immediate and significant 
adverse impact to right whales in the MRA Wedge, while the MRA is 
closed in 2023.
    On December 29, 2022, President Biden signed H.R. 2617, the 
Consolidated Appropriations Act, 2023 (``Consolidated Appropriations 
Act'') into law. The Consolidated Appropriations Act establishes that 
from December 29, 2022, through December 31, 2028, NMFS' September 17, 
2021, rule amending the ALWTRP, Taking of Marine Mammals Incidental to 
Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan 
Regulations, 86 FR 51970 (September 17, 2021), ``shall be deemed 
sufficient to ensure that the continued Federal and State 
authorizations of the American lobster and Jonah crab fisheries are in 
full compliance'' with the MMPA and the ESA. H.R. 2617-1631-H.R. 2617-
1632 (Division JJ-North Atlantic Right Whales, Title I-North Atlantic 
Right Whales and Regulations, Sec.  101(a)). The Consolidated 
Appropriations Act disrupts the Court's 2024 deadline and requires that 
NMFS promulgate new regulations for the American lobster and Jonah crab 
fisheries, consistent with the MMPA and ESA, to take effect by December 
31, 2028. Id.
    This emergency rule, however, is permitted pursuant to an exception 
at Sec.  101(b), stating that Sec.  101(a) does not apply to ``an 
existing emergency rule, or any action taken to extend or make final an 
emergency rule that is in place on the date of enactment of this Act, 
affecting lobster and Jonah crab.'' This explicit exception in the 
Consolidated Appropriations Act can only refer to the 2022 MRA Wedge 
Rule, because that is the only emergency rulemaking implemented under 
the MMPA, ESA, or other relevant statutes, affecting lobster and Jonah 
crab, to occur in the past decade. The exception at Sec.  101(b) is a 
specific reference to the 2022 emergency

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rule closing the MRA Wedge. If the exception did not cover an extension 
or finalization of the MRA Wedge Rule, the provision would have no 
purpose. Moreover, the emergency rulemaking provisions of MMPA Section 
118(g) allow for extensions of existing emergency rules when conditions 
warrant, and the statutory language does not require an extension to 
follow immediately upon the expiration of the original emergency 
action. Thus, the continued existence of the emergency, as opposed to 
the operability of the emergency rule, is what matters for an extension 
of an emergency rule. Here, the 2022 30-day emergency rule was not in 
effect longer than 270 days (the statute's temporal limit), but the 
same conditions exist this year to warrant an extension. Section Sec.  
101(b) explains that NMFS may take any action, including this action, 
to extend the MRA Wedge closure. NMFS is extending the 2022 emergency 
rule into 2023 and also extending the duration of closure to February 
through April to match the broader closure of Federal waters in the MRA 
that left a spatial gap in protection between State and Federal waters 
and thereby addressing the emergency Congress intended that NMFS 
address during the 2023 fishing season. Therefore, this extension of 
the 2022 emergency rule into 2023 is justified, in part, as a 
consequence of changing circumstances following the 2022 emergency rule 
which put in place ``emergency measures in an area of anticipated acute 
risk of entanglement to the population while long-term measures are 
being developed'' (87 FR 11591-92).
    This extension of the 2022 emergency rule into 2023 is also 
justified based on the scientific evidence regarding right whale and 
gear locations. North Atlantic right whales are known to aggregate in 
Cape Cod Bay in winter and spring to forage on copepods (Calanus spp.). 
As this food source declines, right whale distribution accordingly 
shifts and increases the presence of right whales in the MRA Wedge as 
they leave the Bay. Federal waters reopen to trap/pot fishing in May, 
increasing the area available to fishermen and reducing the likelihood 
of high gear density from fishermen ``storing'' their gear in the MRA 
Wedge. Aerial surveys from 2021 and 2022 capturing gear sightings on 
specific days when surrounding waters of the MRA are closed to buoy 
lines, demonstrate the high risk of entanglement that right whales face 
while in or traversing the waters of the MRA Wedge (Figure 2). 
Additionally, sightings of right whales throughout the spring in the 
MRA Wedge and surrounding waters continue to demonstrate that whales 
are in the MRA Wedge or likely traveling through this gap in the MRA 
closure to feed in waters in and around Massachusetts Bay (Figure 3). 
Without restrictions in place in the MRA Wedge, gear may increase in 
this area as fishermen pushed out of surrounding waters move gear into 
this small open area and continue to actively fish. Gear may also 
increase if fishermen start bringing gear into the MRA Wedge 
anticipating the May 1 opening of Federal waters. The staging of gear 
in anticipation of Federal waters opening may be especially likely in 
April when whale sightings are still high. Given the high likelihood 
that endangered right whales are present throughout this area and in 
adjoining waters during February through April, the MRA Wedge poses a 
particularly high risk of mortality or serious injury from entanglement 
in fishing gear. Accordingly, it is critical that this buoy line 
closure address the gap between State and Federal waters within the MRA 
Wedge during the MRA closure in Federal waters in 2023 to prevent the 
likelihood of an immediate and significant adverse impact on right 
whales in the MRA Wedge.
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Emergency Measures

    This emergency rule implements a fishery closure in the waters 
nearly circumscribed by federal and state waters of the MRA, where the 
use of persistent trap/pot buoy lines is prohibited seasonally (Figure 
1). This closure period aligns with the existing MRA closure season for 
Federal waters, as of February 1 and continues through April 30 (322 
CMR 12.04(2)). Risk reduction and change in right whale co-occurrence 
were calculated for this emergency measure using the Decision Support 
Tool (DST) version 4.1.0, which is an updated version of the model that 
was used in the 2021 FEIS (NMFS 2021b). The area restricted by this 
emergency rule includes approximately 200 mi\2\ (518 km\2\), 
representing about 1.9 to 2.4 percent reduction of the total trap/pot 
entanglement risk in the Northeast. This amounts to a 13.2 to 16.6 
percent reduction of the total risk of trap/pot fisheries in LMA 1 
adjacent to Massachusetts where the threat of entanglement is 
particularly high for right whales.
    The DST used to estimate risk reduction of the emergency closure 
relies on whale distribution data from 2010 through September 2020 and 
line estimates from recent years before the new boundaries of the MRA 
and the new Massachusetts State Water closure were implemented (2015-
2018 for lobster, 2010-2020 for other federal trap/pot fisheries, and 
2012-2019 for other trap/pot fisheries in state waters). These data 
likely underestimate the risk reduction according to 2018-2022 right 
whale sightings (Figure 3). The 2021 restrictions may have also pushed 
more gear into this area. Furthermore, the right whale habitat density 
model produced by Duke University and used within the DST estimates 
that up to 5 whales total are likely to be present in this locality 
throughout the time frame, but sighting data collected during February-
April 2018-2022 indicate that in 2022 there may be more right whales in 
the area than the model predicts (Figure 3). Given the empirical 
evidence collected in 2018-2022, it is likely that the risk reduction 
estimated in this small area may have even greater value to the right 
whale population than the DST estimates.
    The economic impact of a February-April closure to the lobster and 
Jonah crab trap/pot fishery is estimated to be small relative to the 
total value of the fishery. It is estimated to impact between 26-31 
vessels in a given month and the total costs including gear 
transportation costs and lost revenue range from $338,804-$608,346. For 
this analysis, we evaluated two scenarios for the economic impacts on 
lobster vessels. We assume half of the vessels would

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relocate their traps, and the other half would stop fishing. For 
vessels that stop fishing, the cost differences include lost revenue, 
gear relocation costs, and saved operating costs from not fishing. The 
lower and higher end of cost estimates come from the range of lost 
revenue of the relocated vessels, and a range of gear relocation costs 
for all vessels. The number of vessels impacted was calculated from the 
average number of vessels fishing within the MRA Wedge in a given month 
from 2017 to 2021 according to Vessel Trip Report (VTR) data, and was 
adjusted based on the average percentage of Lobster Management Area 1 
lobster-only vessels required to provide VTR data in Massachusetts (41 
percent). Landing values were similarly averaged for the time period 
using landing pounds from VTR data and lobster prices in Massachusetts 
from dealer reports.

Classification

    The NMFS Assistant Administrator has determined that this emergency 
rule is consistent with the ALWTRP, with the emergency rulemaking 
authority under MMPA section 118(g), and with other applicable laws 
including the Consolidated Appropriations Act, 2023. H.R. 2617-1631-
H.R. 2617-1632 (Division JJ--North Atlantic Right Whales, Title I--
North Atlantic Right Whales and Regulations).
    The Office of Management and Budget has waived review of this 
emergency rule under Executive Order 12866. NMFS has prepared a 
regulatory impact review.
    This emergency final rule is exempt from the procedures of the 
Regulatory Flexibility Act because the rule will not include prior 
notice or an opportunity for public comment.
    This emergency final rule contains no information collection 
requirements under the Paperwork Reduction Act of 1995.
    This emergency rule falls within the scope of the analysis 
conducted in the informal ESA consultation, Endangered Species Act 
section 7 consultation on the implementation of the Atlantic Large 
Whale Take Reduction Plan (May 25, 2021), a separate consultation is 
not required for this action. The emergency rule modifies a separate 
action independent from the 2021 Endangered Species Act Section 7 
Consultation on the: (a) Authorization of the American Lobster, 
Atlantic Bluefish, Atlantic Deep-Sea Red Crab, Mackerel/Squid/
Butterfish, Monkfish, Northeast Multispecies, Northeast Skate Complex, 
Spiny Dogfish, Summer Flounder/Scup/Black Sea Bass, and Jonah Crab 
Fisheries and (b) Implementation of the New England Fishery Management 
Council's Omnibus Essential Fish Habitat Amendment 2 (``2021 BiOp''). 
The emergency rule was not developed during the fisheries consultation 
process that culminated in the 2021 BiOp and it satisfies its ESA and 
MMPA requirements through consultation that was entirely distinct from 
the 2021 BiOp. The emergency rule is not associated with the 2021 BiOp, 
and was not analyzed under the 2021 BiOp, nor does the 2021 BiOp 
provide ESA or MMPA coverage for the emergency rule.
    Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3) the Assistant 
Administrator for Fisheries finds good cause to waive notice and public 
comment, and the 30 day delay in rule effectiveness. Right whale 
distribution data identify risk in unrestricted waters encapsulated on 
three sides by the expanded MRA while seasonal restrictions are in 
place from February through April in surrounding waters, as noted in 
the Justification for Emergency Action section above. While publication 
of this rule will implement this closure immediately, the fishing 
community was notified on January 10, 2023, of the anticipated closure 
of the MRA Wedge by the Massachusetts Division of Marine Fisheries, 
which fully supports this closure. This notification provides time for 
fishermen to comply with the emergency restrictions by removing or 
relocating their gear from the MRA Wedge before the seasonal closure is 
effective.
    In summary, this emergency action is necessary to prevent 
entanglements of right whales in an area of elevated risk in 
Massachusetts Bay in February through April of 2023, while seasonal 
restrictions are in place in nearby Federal waters. Providing prior 
notice through proposed rulemaking and public comment period in the 
normal rulemaking process, or providing a delay in effective date, 
would delay implementation of time sensitive emergency measures 
necessary to prevent incidental mortality and serious injury of right 
whales that would likely have an immediate and significant adverse 
impact on the species. Providing notice and comment or a delay in 
effective date would prevent NMFS from meeting its obligations to 
protect right whales from entanglements in the MRA Wedge, in 
contravention of the MMPA and ESA, because such a delay would inhibit 
NMFS' ability to stave off an imminent risk to right whales. Similarly, 
providing notice and comment or a delay in effective date would harm 
the public by preventing NMFS' from immediately addressing this 
emergency. The emergency will not be adequately addressed if the action 
is delayed. For the reasons outlined above, NMFS finds it impracticable 
and contrary to the public interest to provide prior notice and public 
comment on these emergency measures. For the same reasons, NMFS finds 
good cause to waive the delay in the effective date of this rule.

References

Hayes, S.H., E. Josephson, K. Maze-Foley, P.E. Rosel, and J. 
Wallace. 2022. US Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments 2021. Northeast Fisheries Science Center, Woods Hole, 
MA.
NMFS. 2019. Guidance on the Application of NEPA for Emergency 
Response Actions. Memo to National Environmental Policy Act (NEPA) 
Practitioners. September 23, 2019.
NMFS. 2021b. Final Environmental Impact Statement, Regulatory Impact 
Review, and Initial Regulatory Flexibility Analysis for Amending the 
Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule. NOAA, 
National Marine Fisheries Service, Greater Atlantic Regional 
Fisheries Office.
NMFS. 2022. Environmental Assessment, Finding of No Significance, 
and Regulatory Impact Review for the 2022 Emergency Final Rule to 
Reduce Right Whale Interactions with Lobster and Jonah Crab Trap/Pot 
Gear. NOAA, National Marine Fisheries Service, Greater Atlantic 
Regional Fisheries Office.
Pace, R.M., P.J. Corkeron, and S.D. Kraus. 2017. State-space mark-
recapture estimates reveal a recent decline in abundance of North 
Atlantic right whales. Ecology and Evolution 7:8730-8741.
Pace, R.M. 2021. Revisions and Further Evaluations of the Right 
Whale Abundance Model: Improvements for Hypothesis Testing. NOAA 
Technical Memorandum NMFS-NE-269. Northeast Fisheries Science 
Center, Woods Hole, MA.
Pace, R.M., R. Williams, S.D. Kraus, A.R. Knowlton, and H.M. Pettis. 
2021. Cryptic mortality of North Atlantic right whales. Conservation 
Science and Practice 2021:e346.
Pettis, H.M., R.M. Pace, and P.K. Hamilton. 2022. North Atlantic 
Right Whale Consortium 2021 Annual Report Card. Report to the North 
Atlantic Right Whale Consortium.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Endangered Species, Fisheries, Marine mammals, Reporting 
and recordkeeping requirements.


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    Dated: January 30, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for 50 CFR part 229 continues to read as 
follows:

    Authority:  16 U.S.C. 1361 et seq.; Sec.  229.32(f) also issued 
under 16 U.S.C. 1531 et seq.


0
2. Amend Sec.  229.32 by adding paragraph (c)(3)(iv) to read as 
follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (c) * * *
    (3) * * *
    (iv) Massachusetts Restricted Area Emergency Extension. During the 
period from February 1, 2023 through April 30, 2023, the Massachusetts 
Restricted Area defined in paragraph (c)(3)(i) of this section is 
extended from the Massachusetts state waters boundary at MRAW1 to MRAW2 
(also MRA3 in Table 11 to paragraph (c)(3)(i)), then it is bounded by a 
rhumb line connecting points MRAW2 to MRAW3 (MRA4), and then bounded by 
a rhumb line connecting points MRAW3 through MRAW4 (MRA5) back to 
MRAW1, in the order detailed in Table 11a to paragraph (c)(3)(iv); From 
February 1, 2023 through April 30, 2023, it is prohibited to fish with, 
set, or possess trap/pot gear in the area in this paragraph (c)(3)(iv) 
of this section unless it is fished without buoy lines or with buoy 
lines that are stored on the bottom until remotely released for 
hauling, or buoy lines that are stowed in accordance with Sec.  229.2. 
Authorizations for fishing without buoy lines must be obtained if such 
fishing would not be in accordance with surface marking requirements of 
Sec. Sec.  697.21 and 648.84 of this title or other applicable fishery 
management regulations. The minimum number of trap/trawl gear 
configuration requirements specified in paragraph (c)(2)(iv) of this 
section remain in effect unless an exemption to those requirements is 
authorized.

                         Table 11a to (c)(3)(iv)
------------------------------------------------------------------------
                      Point                           Lat        Long
------------------------------------------------------------------------
MRAW1...........................................  42[deg]39.  70[deg]30'
                                                         77'
MRAW2 (MRA3)....................................  42[deg]12'  70[deg]38.
                                                                     69'
MRAW3 (MRA4)....................................  42[deg]12'  70[deg]30'
MRAW4 (MRA5)....................................  42[deg]30'  70[deg]30'
MRAW1...........................................  42[deg]39.  70[deg]30'
                                                         77'
------------------------------------------------------------------------

* * * * *
[FR Doc. 2023-02185 Filed 2-1-23; 8:45 am]
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