Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, 63917-63928 [2023-20147]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Proposed Rules]
[Pages 63917-63928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20147]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 230912-0217]
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: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing an amendment to the Atlantic Large Whale 
Take Reduction Plan (Plan) to expand the boundaries of the 
Massachusetts Restricted Area to include the wedge between State and 
Federal waters

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known as the Massachusetts Restricted Area Wedge. The Massachusetts 
Restricted Area Wedge was closed by emergency rulemaking in 2022 and 
2023 due to the immediate risk to North Atlantic right whale (Eubalaena 
glacialis) mortality and serious injury caused by buoy lines in an area 
with a high co-occurrence of whales and buoy lines. This risk is 
expected to recur annually. This action will address this gap in 
protection 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.

DATES: Submit comments on or before October 18, 2023.

ADDRESSES: You may submit written and oral comments, identified by 
NOAA-NMFS-2023-0083, by the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter [NOAA-NMFS-2023-0083] in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    Instructions: All comments received that are timely and properly 
submitted are a part of the public record and will generally be posted 
for public viewing on https://www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.), 
confidential business information, or otherwise sensitive information 
submitted voluntarily by the sender will be publicly accessible. We 
will accept anonymous comments (enter ``N/A'' in the required fields if 
you wish to remain anonymous). Comments received after the end of the 
comment period or outside the scope of this proposed rule, may not be 
considered.
    NMFS is interested in all comments on the proposed rule. However, 
we are specifically soliciting comments on the timing and spatial 
extent of the closure, if implemented. In addition to comments on this 
proposed rule, reviewers are asked to comment on and identify support 
for Alternative 1, 2, or 3 described in the associated Environmental 
Assessment (EA; see instructions below to access the EA and other 
background documents).
    Oral Comments: Public meeting locations or webinar access 
information will be posted on the Plan website at https://www.fisheries.noaa.gov/ALWTRP or contact Jennifer Goebel for 
information on locations and dates. See FOR FURTHER INFORMATION CONTACT 
below.
    Copies of this action, including the draft EA and the Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) 
prepared in support of this action, are available via the internet at 
https://www.regulations.gov/ or by contacting Jennifer Goebel (see FOR 
FURTHER INFORMATION CONTACT below).
    Several of the background documents for the Atlantic Large Whale 
Take Reduction Plan (Plan or ALWTRP) and the take reduction planning 
process can also be downloaded from the Plan website (https://www.fisheries.noaa.gov/ALWTRP), including copies of the draft EA/RIR/
IRFA for this action. Information on the analytical tools used to 
support the development and analysis of the proposed 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, 
[email protected], Colleen Coogan, 978-281-9181, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

Background
Summary of Proposed Change
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 2020 at 338 whales (95 percent confidence interval: 325-350) 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 U.S. 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 August 31, 2023, 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, 34 serious 
injuries were documented (6 in 2017, 6 in 2018, 3 in 2019, 6 in 2020, 5 
in 2021, 4 in 2022, and 4 in 2023). Lastly, 45 morbidity (or sublethal 
injury or illness) cases were documented (13 in 2017, 12 in 2018, 6 in 
2019, 6 in 2020, 1 in 2021, 6 in 2022, and 1 in 2023; https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event). Documented mortalities 
and serious injuries represent a minimum; population models estimate 
that 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 2022, there has not been a 
single year where observed mortality and serious injury of right whales 
was below a PBR of 0.7. Moreover, total estimated mortality is higher 
than observed mortality.
    The Plan 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

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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 (ALWTRT) was 
established in 1996 and has 60 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 (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 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 Trap/Pot Management Area 
(Northeast Region). The recommended measures intended to reduce the 
risk of mortality and serious injury to right whales incidentally 
entangled in buoy lines in those fisheries by at least 60 percent. At 
the time of the 2019 ALWTRT meeting and subsequent rulemaking, 60 
percent was the best estimate of the minimum amount of risk reduction 
necessary to reduce annual mortality and serious injury rates below 
PBR. This estimate was calculated based on observed entanglements. On 
July 2, 2021, NMFS published a Final Environmental Impact Statement 
(FEIS) (86 FR 35288), with a 30-day comment period. The Record of 
Decision was signed on August 30, 2021, and the final rule published on 
September 17, 2021 (86 FR 51970). NMFS estimated that the new rule 
would meet the minimum 60-percent reduction in risk recommended by the 
ALWTRT in 2019, though updated estimates suggest the rule only achieved 
47 percent risk reduction coastwide. Additional data on right whale 
population estimates, 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 FEIS (NMFS 2021) and the preamble to the 2021 
final rule (86 FR 51970, September 17, 2021).
    The 2021 final rule (86 FR 51970, September 17, 2021) inadvertently 
left a critical gap in protection for right whales within the 
Massachusetts Restricted Area (MRA). Observational sightings from 2018 
through 2022 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 had 
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 
resulted in approximately 200 square miles (518 square kilometers) of 
Federal waters remaining open to trap/pot fishing between State and 
Federal closures. This created the ``MRA Wedge'' (Figure 1). Center for 
Coastal Studies (CCS) and the Northeast Fisheries Science Center 
(NEFSC) reported consistent observations of right whales within this 
wedge February through April 2018-2022 (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 (i.e., gillnet 
and trap/pot gear) in the MRA Wedge and in waters north of the MRA 
(Figure 2). 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. After reviewing available 
information and considering the high risk of entanglement 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; NMFS 2022). Though the 
January 2022 letter from MA DMF requested a closure to address the 
closure period in the MRA, which begins in February and remains closed 
through April under the Plan, the closure was only implemented in April 
due to the several months it took to prepare a new emergency rule and 
Environmental Assessment to understand the potential economic and 
biological impacts of the closure.
    ALWTRT meetings and deliberations in November and December of 2022 
culminated in a majority vote for a Plan amendment to implement new 
measures to further reduce right whale entanglement mortality and 
serious injury. Among those measures was an 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 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, 2023 (CAA), MA DMF 
reiterated its 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. On 
January 31, 2023, NMFS announced an extension of the 2022 Emergency 
Rule closing the MRA Wedge to trap/pot fishing with buoy lines while 
adjacent Federal waters within the MRA were similarly restricted from 
February 1 through April 30 to address this gap in protections again in 
2023 (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 May 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. . . .''
    The MRA was first implemented in 2015, and was originally intended 
to restrict trap/pot fishing from January through April due to the 
recurring seasonal presence of right whales in the

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area (79 FR 36585, June 27, 2014). Instead of a smaller closure limited 
to Cape Cod Bay, the MRA's boundaries offered greater protection to 
right whales given their presence in the area north of Race Point and 
Outer Cape Cod. However, the MRA was amended prior to implementation to 
allow fishing during January, not because whales are not present in the 
area in January, but because it is a key month for the fishing industry 
(79 FR 73848, December 12, 2014). Though right whales and the 
associated entanglement risk are present annually in Federal waters 
adjacent to Massachusetts before and after the MRA trap/pot closure, 
the MRA Wedge poses an acute entanglement risk to right whales from 
February through April during the MRA closure.
    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 after copepod abundance has 
declined (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 the Bay 
and surrounding waters during their presence particularly important for 
population recovery (Ganley et al. 2019). Past and current sightings 
data indicate that April is, on average, the month of peak abundance in 
the Bay (see Figure 12, Figure 13, Figure 14 in the associated EA for 
this action). Ganley et al. (2019) found that sightings data do not 
accurately reflect peak whale presence due to diving behavior, with 
higher abundances in January through March than detectable through 
simple whale counts or sightings per unit effort and that the month of 
peak abundance varies annually, sometimes occurring in March or April 
(Pendleton et al. 2022). Furthermore, right whale use of the Bay has 
increased as spring temperatures warm up earlier in the year and 
suggest the month 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 continue to demonstrate that whales occupy and 
travel through the MRA Wedge to feed in waters in and around 
Massachusetts Bay (Figure 3; also see Figure 12, Figure 13, Figure 14 
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). Data on right whale presence in February and 
March in Massachusetts Bay and the MRA Wedge are also likely 
underestimated 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, 2022), right whale 
distribution accordingly shifts and increases the presence of right 
whales in the MRA Wedge as they leave Cape Cod Bay, contributing to a 
peak of sightings in Massachusetts Bay in April. Right whale presence 
in Massachusetts Bay is likely to shift as climate change impacts the 
population use of Cape Cod Bay, potentially contributing to higher 
abundance in earlier months. Accordingly, 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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Summary of Proposed Changes

    This proposed rule, if adopted, would expand the boundaries of the 
MRA, where the use of persistent trap/pot buoy lines are seasonally 
prohibited, to include the MRA Wedge (Figure 4). The proposed rule, if 
adopted, would close 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 gear in 
the MRA Wedge from February through April in the years 2018-2022, 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 that would 
likely result if the proposed rule was

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implemented, we used the Large Whale Decision Support Tool (DST) 
version 4.1.0, which quantitatively evaluates potential risk outcomes 
for relevant management actions. The DST estimates that the proposed 
closure would result in an approximately 1.9 to 2.4 percent reduction 
of risk of mortality or serious injury due to entanglement. This is 
equivalent to a total risk reduction of approximately 13.2 to 16.6 
percent for the trap/pot fisheries in Lobster Management Area 1 (LMA 1) 
adjacent to Massachusetts, where the threat of entanglement is 
particularly high for right whales.
    The DST version used to estimate anticipated risk reduction relies 
on right whale distribution data from 2010 through September 2020 and 
buoy line estimates from recent years (2015-2018 for lobster, 2010-2020 
for other Federal trap/pot fisheries, and 2012-2019 for other trap/pot 
fisheries in state waters), before the current boundaries of the MRA 
and the MA State Waters Trap/Pot Closure were implemented. The 2021 
restrictions likely pushed more gear into this area than is reflected 
in the gear data that was incorporated into DST. In addition, we used 
the right whale habitat density model produced by Duke University 
(Version 12; Roberts et al. 2016a, Roberts et al. 2016b, Roberts et al. 
2020, Roberts et al. 2021, Roberts and Halpin 2022) within the DST, 
which estimates that up to five whales total are likely to be present 
in this locality at any given time throughout the time frame. However, 
sightings data collected during the months of February through April in 
the years from 2018 through 2022 shows that there are at times more 
right whales in the area than the model estimates (Figure 3). For 
example, on April 28, 2021, dedicated surveys sighted 15 whales in the 
Wedge Area. Accordingly, the DST provides strong supporting evidence 
for the Rule, and the empirical observational evidence collected in 
2018-2022 demonstrates that the proposed closure of the MRA Wedge area 
will likely have greater value to right whale conservation than the DST 
estimates (see section 6.2 in the associated EA for more details on 
these analyses).
    The economic impact of the addition of the MRA Wedge to the MRA on 
the lobster and Jonah crab trap/pot fishery is estimated to be 
relatively small compared to the total value of the fishery. 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 for the economic impacts on lobster vessels. We assumed 
that half of the vessels would 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 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). Landing values were 
similarly averaged 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 and underlying assumptions, 
please see section 6.2 in the associated EA and RIR/IRFA for this 
proposed rule.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the ALWTRP, with the rulemaking authority under 
MMPA section 118(f), and with other applicable laws including 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. The CAA 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, 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 
NMFS may take ``any action . . . 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 proposed rule is permitted under Sec.  101(b). The ``emergency 
rule'' in Sec.  101(b)'s express exception plainly refers to the 2022 
MRA Wedge Rule, 87 FR 11590 (Mar. 2, 2022), because the 2022 Emergency 
Rule was ``in place'' at the time of the CAA's enactment on December 
29, 2022.
    Although the 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 to extend that 
rule at the time of the CAA's enactment under MMPA Sec.  118(g). 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 vertical-
line 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.
    Any other reading of the statute would deprive the Sec.  101(b) 
exception of any meaning. The 2022 Emergency Rule is the only emergency 
rulemaking implemented in the past decade under the MMPA, ESA, or other 
relevant statutes affecting lobster and Jonah crab; there is no other 
``emergency rule'' to which the exception could have referred. 
Moreover, Congress would not have reasonably expected NMFS to issue 
another emergency rule when Congress was contemplating and enacting the 
statute, or in the short time between when Congress passed and the 
President signed the CAA. For example, no other emergency rule related 
to right whale and the lobster fishery was under consideration in and 
around that time. Accordingly, the 2022 Emergency Rule

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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.
    Based on this understanding, NMFS ``extend[ed]'' the 2022 Emergency 
Rule, CAA Sec.  101(b), the following year on February 1, 2023, by 
closing the MRA Wedge from February 2023 through April 2023 to match 
the broader closure of Federal waters in the MRA. This proposed rule 
seeks to ``make final,'' CAA Sec.  101(b), the 2022 Emergency Rule by 
incorporating the MRA Wedge into the larger MRA boundaries. The 
proposed 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 proposed rule would therefore ``make 
final'' the wedge closure under the Plan, in accordance with the MMPA 
and CAA.

National Environmental Policy Act

    NMFS prepared a draft EA for this proposed rule that discusses the 
potential impacts of proposed changes to the ALWTRP on the environment. 
In addition to the status quo (Alternative 1), two alternatives are 
analyzed: Alternative 2 (preferred and the basis of this proposed 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. 
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 1.9 to 2.4 percent. Alternative 3 is estimated to reduce 
risk by 3.3 to 5.5 percent. The difference in impact between the two 
alternatives is even greater when considering local risk in the area in 
LMA 1 adjacent to Massachusetts, an area with particularly high 
entanglement risk during the MRA closure months (13.2 to 22.3 percent 
risk reduction under Alternative 2 compared to 14.9 to 37.4 percent 
under Alternative 3). Overall, the economic impacts of the 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 across 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 
proposed 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 proposed 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 proposed 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 an initial regulatory flexibility analysis (IRFA) in support 
of this action, as required by section 603 of the RFA. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action 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.
    The IRFA 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 area so that it would not be economically 
feasible to travel to this area to fish. Therefore, this proposed rule 
would directly affect relatively few entities that actually fished with 
vertical lines in the proposed Wedge Area 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 proposed 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 proposed 
rule falls within the scope of the analysis conducted in the informal 
Endangered Species Act section 7 consultation on the implementation of 
the Atlantic Large Whale Take Reduction 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 proposed rule is 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 proposed rule was not developed during the fisheries 
consultation process that culminated in the 2021 BiOp, and the proposed 
rule satisfies the ESA and MMPA requirements through a consultation 
that was entirely distinct from the 2021 BiOp. The proposed 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 proposed rule.

[[Page 63927]]

References

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there is: Estimating North Atlantic right whale Eubalaena glacialis 
local abundance. Endangered Species Research, 38, 101-113.
Ganley, L. C., J. Byrnes, D. E. Pendleton, C. A. Mayo, K. D. 
Friedland, J. V. Redfern, J. T. Turner, and S. Brault. 2022. Effects 
of changing temperature phenology on the abundance of a critically 
endangered baleen whale. Global Ecology and Conservation 38:e02193.
Hayes, S. H., E. Josephson, K. Maze-Foley, J. McCordic, P. E. Rosel, 
and J. Wallace. 2023. US Atlantic and Gulf of Mexico Marine Mammal 
Stock Assessments 2022. Northeast Fisheries Science Center, Woods 
Hole, MA.
Hlista B. L., H. M. Sosik, L.V. Martin Traykovski, R. D. Kenney, M. 
J. Moore. 2009. Seasonal and interannual correlations between right-
whale distribution and calving success and chlorophyll 
concentrations in the Gulf of Maine, USA. Mar Ecol Prog Ser 394:289-
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Jaquet, N., C. A. Mayo, D. Osterberg, C. L. Browning, and M. K. 
Marx. 2007. Surveillance, Monitoring, and Management of North 
Atlantic Right Whales in Cape Cod Bay and Adjacent Waters--2007: 
Final Report. Provincetown Center for Coastal Studies, 260 pp.
Johnson, H., D. Morrison, and C. Taggart C. 2021. WhaleMap: a tool 
to collate and display whale survey results in near real-time. 
Journal of Open Source Software. 6(62): 3094.
Mayo, C. A., L. Ganley, C. A. Hudak, S. Brault, M. K. Marx, E. 
Burke, and M. W. Brown. 2018. Distribution, demography, and behavior 
of North Atlantic right whales (Eubalaena glacialis) in Cape Cod 
Bay, Massachusetts, 1998-2013: Right Whales in Cape Cod Bay. Marine 
Mammal Science. 34:979-996.
Mayo, C. A., and M. K. Marx. 1990. Surface behavior of the North 
Atlantic right whale, Eubalaena glacialis, and associated 
zooplankton characteristics. Canadian Journal of Zoology. 68:2.
NMFS. 2021. 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.
NMFS. 2023. Environmental Assessment, Finding of No Significance, 
and Regulatory Impact Review for the 2023 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.
Pendleton, D., A. Pershing, M. Brown, C. Mayo, R. Kenney, N. Record, 
and T. Cole. 2009. Regional-scale mean copepod concentration 
indicates relative abundance of North Atlantic right whales. Marine 
Ecology Progress Series, 378, 211-225.
Pendleton, D. E., M. W. Tingley, L. C. Ganley, K. D. Friedland, C. 
Mayo, M. W. Brown, B. E. McKenna, A. Jordaan, and M. D. Staudinger. 
2022. Decadal[hyphen]scale phenology and seasonal climate drivers of 
migratory baleen whales in a rapidly warming marine ecosystem. 
Global Change Biology, 28(16), 4989-5005.
Plourde, S., C. Lehoux, C. L. Johnson, G. Perrin, and V. Lesage. 
2019. North Atlantic right whale (Eubalaena glacialis) and its food: 
(I) a spatial climatology of Calanus biomass and potential foraging 
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667-685.
Roberts, J. J., B. D. Best, L. Mannocci, E. Fujioka, P. N. Halpin, 
D. L. Palka, L. P. Garrison, K. D. Mullin, T. V. N. Cole, C. B. 
Khan, W. A. McLellan, D. A. Pabst, and G. G. Lockhart. 2016a. 
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Roberts J. J., L. Mannocci, and P. N. Halpin. 2016b. Final Project 
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the AFTT Study Area, 2015-2016 (Base Year). Document version 1.0. 
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Atlantic by the Duke University Marine Geospatial Ecology Lab, 
Durham, NC.
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the AFTT Study Area, 2020 (Option Year 4). Document version 2.2. 
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baleen rattle. Journal of Mammalogy. 57:58-66.

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: September 13, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 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 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 revising paragraph (c)(3)(i) to read as 
follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (c) * * *
    (3) * * *

[[Page 63928]]

    (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 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. 2023-20147 Filed 9-15-23; 8:45 am]
BILLING CODE 3510-22-P