Magnuson-Stevens Act Provisions; Prohibition of Commercial Fishing in the Northeast Canyons and Seamounts Marine National Monument, 12282-12286 [2024-03247]
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Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Rules and Regulations
meaningful analysis and will be subject
later to the NEPA process, either
collectively or on a case-by-case basis’’)
of the Companion Manual and we have
not identified any extraordinary
circumstances listed in Chapter 4 of the
Companion Manual for NAO 216–6A
that would preclude application of this
categorical exclusion. If NMFS takes a
management action, for example,
through the development of a TRP,
NMFS would first prepare an
Environmental Impact Statement or
Environmental Assessment, as required
under NEPA, specific to that action.
This rule would not affect species
listed as threatened or endangered
under the ESA or their associated
critical habitat. The impacts of
numerous fisheries have been analyzed
in various biological opinions, and this
rule will not affect the conclusions of
those opinions. The classification of
fisheries on the LOF is not considered
to be a management action that would
adversely affect threatened or
endangered species. If NMFS takes a
management action, for example,
through the development of a TRP,
NMFS would consult under ESA section
7 on that action.
This rule would have no adverse
impacts on marine mammals and may
have a positive impact on marine
mammals by improving knowledge of
marine mammals and the fisheries
interacting with marine mammals
through information collected from
observer programs, stranding and
sighting data, or take reduction teams.
This rule would not affect the land or
water uses or natural resources of the
coastal zone, as specified under section
307 of the Coastal Zone Management
Act.
Memorandum NMFS–SWFSC–684. 409
p.
Carretta, J.W., J. Greenman, K. Wilkinson, L.
Saez, D. Lawson and J. Viezbicke. 2023a.
Sources of Human-Related Injury and
Mortality for U.S. Pacific West coast
Marine Mammal Stock Assessments,
2017–2021. U.S. Department of
Commerce. NOAA Technical
Memorandum NMFS–SWFSC–690. 225
p.
Carretta, J.W., E.M. Oleson, K.A. Forney,
M.M. Muto, D.W. Weller, A.R. Lang, J.
Baker, B. Hanson, A.J. Orr, J. Barlow, J.E.
Moore, and R.L. Brownell. 2022. U.S.
Pacific Marine Mammal Stock
Assessments: 2021. U.S. Department of
Commerce, NOAA Technical
Memorandum NMFS–SWFSC–663. 395
p.
Young, N.C, M.M. Muto, V.T. Helker, B.J.
Delean, N.C. Young, J.C. Freed R.P.
Angliss, N.A. Friday, P.L. Boveng, J.M.
Breiwick, B.M. Brost, M.F. Cameron, P.J.
Clapham, J.L. Crance, S.P. Dahle, M.E.
Dahlheim, B.S. Fadely, M.C. Ferguson,
L.W. Fritz, K.T. Goetz, R.C. Hobbs, Y.V.
Ivashchenko, A.S. Kennedy, J.M.
London, S.A. Mizroch, R.R. Ream, E.L.
Richmond, K.E.W. Shelden, K.L.
Sweeney, R.G. Towell, P.R. Wade, J.M.
Waite, and Alexandre N. Zerbini. 2023.
Alaska Marine Mammal Stock
Assessments 2022. U.S. Department of
Commerce. NOAA Technical
Memorandum NMFS–AFSC–474, 316 p.
References
50 CFR Part 600
Baird, R.W., S.D. Mahaffy, A.M. Gorgone, T.
Cullins, D.J. McSweeney, E.M. Oelson,
A.L. Bradford, J. Barlow, D.L. Webster.
2014. False Killer Whales and Fisheries
Interaction in Hawaiian Waters:
Evidence for Sex Bias and Variation
Among Populations and Social Groups.
Marine Mammal Science 31(2): 579–590.
Bradford, A.L., E.M. Oleson, R.W. Baird, C.H.
Boggs, K.A. Forney, and N.C. Young.
2015. Revised stock boundaries for false
killer whales (Pseudorca crassidens) in
Hawaiian waters. U.S. Department.
Commerce, NOAA Technical
Memorandum. NOAA–NMFS–PIFSC–47,
29p.
Carretta, J.W., E.M. Oleson, K.A. Forney,
M.M. Muto, D.W. Weller, A.R. Lang, J.
Baker, B. Hanson, A.J. Orr, J. Barlow, J.E.
Moore, and R.L. Brownell. 2023. U.S.
Pacific Marine Mammal Stock
Assessments: 2022. U.S. Department of
Commerce. NOAA Technical
[Docket No. 240212–0045]
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Dated: February 9, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024–03013 Filed 2–15–24; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–BL70
Magnuson-Stevens Act Provisions;
Prohibition of Commercial Fishing in
the Northeast Canyons and Seamounts
Marine National Monument
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This action implements
regulations for the Northeast Canyons
and Seamounts Marine National
Monument. This action is necessary to
conform U.S. fishing regulations to be
consistent with Presidential
Proclamations 9496 and 10287, which
prohibited commercial fishing in the
Northeast Canyons and Seamounts
Marine National Monument and
directed the Secretaries of Commerce
and Interior to promulgate regulations
necessary for the proper care and
management of the Monument. The
measures herein are intended to define
the boundary coordinates of the
Monument area and clarify the
prohibition on commercial fishing in
the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) regulations.
DATES: Effective March 18, 2024.
FOR FURTHER INFORMATION CONTACT:
Laura Deighan, Fishery Management
Specialist, 978–281–9184.
SUPPLEMENTARY INFORMATION:
Background
On September 15, 2016, the Northeast
Canyons and Seamounts Marine
Monument was designated in the waters
of the North Atlantic (Presidential
Proclamation 9496; 81 FR 65161,
September 21, 2016), to include both a
Canyons Unit and a Seamounts Unit.
This Proclamation prohibited
commercial fishing within the
Monument, with a 7-year exemption for
the American lobster and Atlantic deepsea red crab fisheries. In June 2020,
Monument prohibitions were revised
via Proclamation 10049 (85 FR 35793,
June 11, 2020) removing commercial
fishing from the list of prohibited
activities set forth in the 2016
Proclamation. Most recently, in October
2021, Proclamation 10287 (86 FR 57349,
October 15, 2021) restored commercial
fishing to the list of prohibited
activities, providing ‘‘for the prohibition
of all commercial fishing in the
Monument, except for red crab and
American lobster commercial fishing,
which may be permitted until
September 15, 2023.’’
Approved Measures
Consistent with Proclamation 10287
(68 FR 57349, October 15, 2021) and the
requirements of the Magnuson-Stevens
Act, this action defines the boundary
coordinates of the Monument area in the
Magnuson-Stevens Act regulations at 50
CFR 600.10. Tables 1 and 2 below
include coordinates for the Canyons and
Seamounts Units.
TABLE 1—CANYONS UNIT
COORDINATES
SUMMARY:
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Point
1
2
3
4
...................
...................
...................
...................
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16FER1
N Latitude
40°31.62′
40°36.00′
40°12.42′
40°7.32′
W Longitude
68°16.08′
67°37.68′
67°34.68′
68°12.72′
Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Rules and Regulations
TABLE 1—CANYONS UNIT
COORDINATES—Continued
Point
1 ...................
N Latitude
40°31.62′
W Longitude
68°16.08′
TABLE 2—SEAMOUNTS UNIT
COORDINATES
Point
1
2
3
1
...................
...................
...................
...................
N Latitude
40°2.64′
39°56.34′
38°51.90′
40°2.64′
W Longitude
67°43.32′
(a)
(b)
67°43.32′
a U.S. exclusive economic zone (EEZ) longitude, approximately 65°56.58′.
b U.S.
EEZ
longitude,
approximately
66°55.86′.
This rule also reflects Proclamation
10287’s prohibition on commercial
fishing within the boundaries of the
Monument in the Magnuson-Stevens
Act prohibitions at § 600.725 and
clarifies that commercial fishermen may
transit through the Monument if fishing
gear is stowed and not available for
immediate use during passage through
the Monument.
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Comments and Responses
We published a proposed rule in the
Federal Register on October 19, 2023
(88 FR 72038), soliciting public
comment. The comment period ended
on November 20, 2023. We received a
total of 11,640 comments submitted by
6 individual commercial and
recreational fishermen; 2 academics and
researchers; 11,589 members of the
public; and 40 environmental, 2
commercial fishing, and 1 legal
organization. One comment related to
wind development, which is not the
subject of this action, and is not
discussed further. A more detailed
summary of the relevant comments and
our responses is provided below.
Establishment of the Monument and Its
Commercial Fishing Prohibition
Comment 1: A total of seven
commenters—four individual
fishermen, two members of the public,
and one commercial fishing
organization—expressed general
opposition to the action because (1) the
commercial fishing prohibition results
in the loss of an important fishing
ground; (2) the commercial fishing
prohibition will have a negative impact
on fisheries in general or on pelagic
longline and highly migratory species
fisheries specifically; (3) the loss of
fishing opportunity for species managed
multilaterally by the International
Commission for the Conservation of
Atlantic Tunas may result in reductions
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of U.S. quota, reallocated to countries
with less sustainable management; (4)
the commercial fishing prohibition gives
exclusive access to recreational
fisheries, and the area should either be
closed or open to all fisheries without
any exceptions; (5) recreational fisheries
do not have the same level of
monitoring as commercial fisheries; (6)
marine protected areas are the least
effective fisheries management tool and
fail to recognize biology and ecology,
are not adaptive, and force vessels to
fish in less desirable areas; (7) fisheries
that do not interact with benthic habitat
and/or that have sufficient monitoring
in place should be allowed to fish in the
Monument; (8) ‘‘objects of historic or
scientific interest,’’ which the
Antiquities Act of 1906 (54 U.S.C.
320301–320303) was established to
protect, does not include living marine
resources; (9) the Monument does not
represent the ‘‘smallest area
compatible’’ with the proper care and
management of the objects the
Monument was established to protect,
as required under the Antiquities Act;
(10) the Monument does not provide
proper care and management of highly
migratory species, which have a much
larger range than the Monument; (11)
the establishment of the Monument was
not based on the best scientific
information available; and (12) the
commercial fishing prohibition poses
prosecution risk to members of industry
if gear drifts, and vessels will not be
able to set gear near the Monument
because of this risk.
A total of 11,627 commenters—11,584
members of the public, 2 individual
fishermen, 1 individual researcher, and
40 environmental organizations—
expressed general support for the
Monument for reasons including the
Monument is a relatively small area, it
is a unique area, it is in need of
protection, it supports sustainable
fisheries, and it balances conservation
and economics. One comment further
stated that the Monument should be
fully protected and all fishing activity
should be prohibited within its
boundaries.
Response: These comments address
the establishment of the Monument and
its associated commercial fishing
prohibition, which were implemented
through Presidential Proclamations
10287 and 9496. NMFS does not
establish, initiate, or control the marine
monument process. Under the
Antiquities Act, the President
establishes marine monuments and
makes the final decision on what is
protected and what uses will be
restricted upon establishment.
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Monument Management Plan
Comment 2: Two comments
submitted by commercial fishing
organizations criticize the development
of the draft Management Plan, the lack
of public involvement in its
development, and the likelihood of its
development having a substantial cost
and little benefit.
Response: This rulemaking is separate
and distinct from the development of
the draft Management Plan. Further,
NMFS is not primarily responsible for
the Management Plan’s development.
The U.S. Fish and Wildlife Service is
the lead agency responsible for the draft
Management Plan.
Legal Basis and Procedures
Comment 3: One comment submitted
by an organization asserts that NMFS’
prohibition on commercial fishing in an
area of the Atlantic Ocean is based on
an ‘‘illegal’’ Presidential Proclamation
issued under the Antiquities Act. The
comment states that the Proclamation
exceeds the President’s authority under
the Antiquities Act and violates the U.S.
Constitution’s separation of powers.
Thus, it argues that any agency action,
including this action seeking to include
the Monument and the commercial
fishing prohibition in the MagnusonStevens Act regulations, is, among other
legal flaws, arbitrary, capricious, and
not in accordance with law. Further, it
asserts that the Monument’s prohibition
on commercial fishing is outside the
President’s authority under the
Antiquities Act and that any agency
action, including this rulemaking, taken
in furtherance of the Monument
designation would violate the
Administrative Procedure Act (APA).
Response: The Monument
Proclamations 9496 and 10287 are
within the President’s authority under
the Antiquities Act, and this rule is
consistent with the APA. NMFS is an
agency of the Executive Branch and thus
is required to comply with directives
from the President. The President
prohibited commercial fishing in the
Monument in the most recent
Proclamation, Proclamation 10287. The
Proclamation further directs NMFS to
implement the existing prohibition on
commercial fishing within the
Monument.
Section 305(d) of the MagnusonStevens Act provides that ‘‘The
Secretary shall have general
responsibility to carry out any fishery
management plan (FMP) or amendment
approved or prepared by him, in
accordance with the provisions of this
Act. The Secretary may promulgate such
regulations, in accordance with section
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553 of Title 5, United States Code, as
may be necessary to discharge such
responsibility or to carry out any other
provision of this Act’’ (emphasis added).
NMFS is responding to a change in
law stemming from the Antiquities Act.
Proclamation 10287’s prohibition on
commercial fishing is ‘‘existing law,’’
and section 303(a)(1)(C) of the
Magnuson-Stevens Act requires FMPs to
be ‘‘consistent with . . . any other
applicable law.’’ (Emphasis added).
Including the prohibition against fishing
in the Monument in the MagnusonStevens Act regulations is consistent
with existing law established by the
Proclamation. It should be noted that
both the New England and Mid-Atlantic
Fishery Management Councils were
invited to act to implement the
Proclamation’s prohibition on
commercial fishing, and both declined.
Comment 4: One comment, submitted
by a legal organization, states that the
rule seeks to ‘‘conform’’ MagnusonStevens Act regulations to the
Proclamation’s commercial fishing
prohibition within the Monument but,
the commenter states, to prohibit
commercial fishing under the
Magnuson-Stevens Act, NMFS must
conform to the statutory requirements
enacted by Congress in the MagnusonStevens Act. The commenter believes
NMFS has ‘‘ignored its duty and
provided no analysis under the
Magnuson-Stevens Act. Thus, the rule
is, among other legal flaws, arbitrary,
capricious, and not in accordance with
law.’’ A second comment, submitted by
a commercial fishing organization,
similarly stated that the rule should
have included Magnuson-Stevens Act
process requirements and National
Standard considerations.
Response: Proclamation 10287
prohibited commercial fishing in the
Monument on October 8, 2021. The
prohibition went into effect
immediately (with exceptions for red
crab and lobster fishing until September
15, 2023).
As discussed above, the use of
Magnuson-Stevens Act section 305(d) is
necessary to ensure FMPs are consistent
with all applicable law, in accordance
with section 303(a)(1)(C). In addition,
the placement of these regulations in the
overarching Magnuson-Stevens Act
regulations at part 600 ensures that all
existing and future FMPs (i.e., not solely
Greater Atlantic Region management
plans) conform to section 303(a)(1)(C)’s
mandate that plans are consistent with
other applicable law.
This action is not discretionary and
this rule does not impose a restriction
or prohibition on commercial fishing in
the Monument. The restriction and
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prohibition on commercial fishing
within the Monument exists even in the
absence of this rule. This rule is
necessary to document within
regulation the boundary coordinates of
the Monument area so that the fishing
industry and public can be informed as
to the location of the Monument in
order to comply with the commercial
fishing prohibition. This rule is also
necessary to document the prohibition
on commercial fishing within the
Monument and to ensure the
commercial fishing industry and public
are aware that commercial fishing
vessels may transit the Monument
provided that all fishing gear is stowed
and unavailable for immediate use. This
rule serves to ensure the commercial
fishing industry has the information
necessary to comply with the provisions
of the Proclamation without being
overburdened either due to uncertainty
as to the boundary coordinates of the
Monument area or uncertainty regarding
whether transiting the Monument is
authorized.
Comment 5: Four comments
submitted by environmental
organizations expressed support for the
inclusion of the Monument commercial
fishing prohibition into the MagnusonStevens Act regulations. Three of the
four comments provided the reasoning
that the action fulfills the requirement
in section 303(a)(1)(C) that FMPs be
consistent with other applicable laws, in
this case the Antiquities Act and
Presidential Proclamations 10287 and
9496. Two of them provided further
rationale that the action is consistent
with section 305(d) of the MagnusonStevens Act. One of the comments did
not provide further reasoning.
Response: NMFS agrees that section
303(a)(1)(C) of the Magnuson-Stevens
Act requires FMPs to be consistent with
other applicable laws and is
implementing this action under the
Secretarial authority at section 305(d).
Comment 6: One comment from a
legal organization states that this
rulemaking skirts NMFS’ duty to
conduct a regulatory flexibility analysis
under the Regulatory Flexibility Act
(RFA). When an agency publishes a
general notice of proposed rulemaking,
the RFA usually requires the agency to
prepare and make available for public
comment an initial regulatory flexibility
analysis (IRFA), which describes the
effect a proposed rule will have on
small entities. The commenter asserts
that the lack of an IRFA for this
proposed rule violates the RFA because
it is based on the President’s illegal
action to prohibit commercial fishing in
the Monument.
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Response: The RFA generally requires
that, when an agency publishes a
proposed rule, as NMFS has done here,
it must also ‘‘prepare and make
available for public comment’’ an IRFA,
that describes ‘‘the impact of the
proposed rule on small entities’’ and
also seek out and describe less
burdensome alternatives to the
proposed rule. However, because the
Monument has been closed to
commercial fishing by Proclamation
10287 since October 2021, this rule will
have no additional effect on regulated
entities beyond what is already in place.
Moreover, the Proclamation’s directive
to NMFS to implement the commercial
fishing prohibition gives the agency no
discretion to consider or implement any
alternatives. Therefore, NMFS cannot
describe less burdensome alternatives to
implementing the existing prohibition
on commercial fishing, because there
are no less burdensome alternatives.
While NMFS did not prepare an
IRFA, it did comply with the RFA.
Section 605(b) of the RFA indicates that
the preparation of an IRFA or final
regulatory flexibility analysis is not
required for rules that ‘‘will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities,’’ as certified
by the head of the agency. In such cases,
the agency is required to publish the
certification, along with the factual basis
for the certification, in the Federal
Register with the notice of proposed
rulemaking or the final rule. The
proposed rule included the factual basis
for this determination, as certified to the
SBA Office of Advocacy by the Chief
Counsel for Regulation of the
Department of Commerce, which
demonstrates that while entities will be
subject to this action, they are already
subject to the commercial fishing
prohibition, and, therefore, this action
has no additional effect on these
regulated entities.
Comment 7: One comment from a
commercial fishing organization states
that taking this action pursuant to an
Executive Order citing the Antiquities
Act, instead of using the processes
established in the Magnuson-Stevens
Act for closures and other actions, and
the lack of any analysis under the
National Environmental Policy Act
(NEPA), are ‘‘the antithesis of good
governance’’ and decries the lack of
public involvement. However, the
comment goes on to state: ‘‘We
understand that NMFS has no discretion
regarding this action; in fact, the docket
clearly articulates this: ‘Because this
action serves to bring the MagnusonStevens Act regulations into compliance
with Presidential Proclamations 9496
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and 10287, there is no decision-making
process for NMFS. NMFS has no
discretion. As a result, there is no
decision-making process, no alternatives
to comply with the Proclamations, and
no public involvement in the decision.
There is no ‘‘proposal’’ for action, as
defined in section 1501.1(a)(5) of the
Council on Environmental Quality
regulations implementing the NEPA.
Therefore, NEPA does not apply to this
action.’ We understand this and
therefore cannot argue against NMFS
compliance with the Executive Orders
as detailed in the Proposed Rule.’’
Response: We agree with these
comments regarding NMFS’ lack of
discretion in proposing this rule in
compliance with the Proclamations’
requirements. The President established
the Monument and prohibited fishing in
the Monument.
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Economic Impacts of the Monument
and This Action
Comment 8: We received one
comment from an individual researcher
and two comments from environmental
organizations related to the impacts of
the Monument that, based on analyses
submitted as part of one comment, there
is little evidence that the commercial
fishing prohibition had significant
economic impacts on commercial
fisheries. The two environmental
organizations also commented that the
inclusion of the commercial fishing
prohibition into the Magnuson-Stevens
Act regulations would not have
additional effects on regulated entities
because the area is already closed to
commercial fishing by Presidential
Proclamations 10287 and 9496.
Response: NMFS agrees that this
action will have no additional effect on
regulated entities because fishing was
previously prohibited in the Monument.
Opportunities for Public Participation
Comment 9: One environmental
organization noted that the Monument
process has included several
opportunities for public participation,
including the comment period on this
rulemaking and additional comment
periods related to the Monument (e.g.,
prior to its designation, throughout the
development of a management plan, at
New England Fishery Management
Council meetings).
Response: This rulemaking included
an opportunity for public participation
through the publication of a proposed
rule in the Federal Register on October
19, 2023 (88 FR 72038), soliciting public
comment. The comment period ended
on November 20, 2023. Other actions,
including the Monument’s
establishment through Presidential
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Proclamation 9496 and the development
of a management plan and public input
submitted in response to those actions
are separate and distinct from this
rulemaking.
Requests for Additional Information
Comment 10: Two comments
submitted by members of the public
asked how the fishing prohibition
would be enforced, in general or in
regard to foreign fishing fleets.
Response: The commercial fishing
prohibition in the Monument will be
enforced with the same resources and
tools that are used to enforce other
existing closures and gear-restricted
areas, including enforcement patrols
and vessel monitoring and reporting
requirements.
Comment 11: One member of the
public stated that the reason for the 7year phase-out for lobster and red crab
is unclear and asked whether there
would be regulations limiting the
number of lobster and crab pots and
specifying the type of rope used in the
Monument for these fisheries.
Response: The 7-year phase-out for
lobster and red crab was established by
Presidential Proclamations 9496 and
10287. Under the Antiquities Act, the
President establishes marine
monuments and makes the final
decision on what is protected and what
uses will be restricted upon
establishment. NMFS does not establish,
initiate, or control the marine
monument process. Presidential
Proclamation 10287 established
September 15, 2023, as the end of the
phase-out period, and all commercial
fishing is currently prohibited in the
Monument by Presidential
Proclamation. This action adds the
commercial fishing prohibition within
the Monument to the list of prohibited
activities at § 600.725 and does not
make any exceptions or differing
regulations for the lobster or red crab
fisheries. While lobster and Jonah crab
are managed under the Atlantic Coastal
Fisheries Cooperative Management Act
with implementing regulations at part
697, this action applies to the lobster
and Jonah crab fisheries. The definitions
(§ 697.2(a)) and prohibitions for lobster
(§ 697.7(c)(1)) and Jonah crab
(§ 697.7(h)) state that the MagnusonStevens Act definitions at § 600.10 and
prohibitions at § 600.725 are also
applicable to these fisheries.
Comment 12: One member of the
public commented that it is unclear why
NEPA didn’t apply, as a ‘‘proposal’’ is
being made and a change in activities
allowed is also being implemented.
Response: Section 1501.1(a)(d) of the
Council on Environmental Quality
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regulations implementing NEPA states
that an agency should consider
‘‘whether the proposed activity or
decision, in whole or in part, is a nondiscretionary action for which the
agency lacks authority to consider
environmental effects as part of its
decision-making process’’ when
determining whether NEPA applies.
NMFS does not establish, initiate, or
control the marine monument process.
The President established the
Monument under the Antiquities Act
and made the final decision on what is
protected and what uses are restricted
within the Monument. Because this
action serves to bring the MagnusonStevens Act regulations into compliance
with Presidential Proclamations 9496
and 10287, there is no decision-making
process for NMFS. NMFS has no
discretion. Therefore, NEPA does not
apply to this action.
Requests for Additions to the
Administrative Record
Comment 13: One comment from an
individual researcher requested that the
administrative record include three
scientific analyses of fishing activity in
the Monument (Lynham, J., Fishing
Activity Before Closure, During Closure,
and After Reopening of the Northeast
Canyons and Seamounts Marine
National Monument. Sci. Reports 12, 1–
21 (2022).; Lynham, J., The Northeast
Canyons & Seamounts Marine National
Monument and the Atlantic Deep-Sea
Red Crab Fishery, Unpublished, 1–14.;
Lynham, J., The Northeast Canyons &
Seamounts Marine National Monument
and the Atlantic Lobster Fishery,
Unpublished, 1–15.) and one comment
from a commercial fishing organization
requested that it include comments it
previously submitted in response to a
Notice of Intent to Conduct Scoping and
to Prepare a Draft Environmental Impact
Statement for the Proposed Hudson
Canyon National Marine Sanctuary (87
FR 34853, June 8, 2022) and a Review
of Certain National Monuments
Established Since 1996; Notice of
Opportunity for Public Comment (82 FR
22016, May 11, 2017) and two scientific
publications (Hampton J, Lehodey P,
Senina I, Nicol S, Scutt Phillips J and
Tiamere K (2023), Limited Conservation
Efficacy of Large-scale Marine Protected
Areas for Pacific Skipjack and Bigeye
Tunas. Front. Mar. Sci. 9:1060943. doi:
10.3389/fmars.2022.1060943. Hilborn,
R., Kaiser, M.J., A Path Forward for
Analysing the Impacts of Marine
Protected Areas. Nature 607, E1–E2
(2022). https://doi.org/10.1038/s41586022-04775-1).
Response: As comments, including
attachments and hyperlinked references,
E:\FR\FM\16FER1.SGM
16FER1
12286
Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Rules and Regulations
are part of the administrative record, the
subject analyses and comments have
been added to the administrative record
for this action.
Classification
NMFS is issuing this rule pursuant to
section 305(d) of the Magnuson-Stevens
Act to comply with section 303(a)(1)(C)
by promulgating regulations (at
§§ 600.10 and 600.725) to ensure that all
FMPs implemented by the Secretary of
Commerce are consistent with, and
conform to, the Proclamations and the
Antiquities Act by ensuring clearly
articulated measures that apply to all
commercial fishing vessels operating in
the EEZ. The NMFS Assistant
Administrator has determined that this
rule is consistent with other applicable
law.
Because this action serves to bring the
Magnuson-Stevens Act regulations into
compliance with Presidential
Proclamations 9496 and 10287, there is
no decision-making process for NMFS.
NMFS has no discretion. As a result,
there is no decision-making process, no
alternatives to comply with the
Proclamations, and no public
involvement in the decision. There is no
‘‘proposal’’ for action, as defined in
section 1501.1(a)(5) of the Council on
Environmental Quality regulations
implementing NEPA. Therefore, NEPA
does not apply to this action.
This rule has been determined not to
be significant for purposes of Executive
Order 12866.
lotter on DSK11XQN23PROD with RULES1
Regulatory Flexibility Act (RFA)
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
VerDate Sep<11>2014
16:07 Feb 15, 2024
Jkt 262001
We received one comment regarding
requirements under the RFA. The
comment did not contest the factual
basis for the certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
This rule contains no information
collection requirements under the
Paperwork Reduction Act of 1995.
(2) Seamounts Unit. The Seamounts
Unit is defined by the area bounded by
straight lines connecting the following
points, except between points 1 and 2,
where the boundary follows the outer
limits of the U.S. EEZ:
List of Subjects in 50 CFR Part 600
Fisheries, Fishing.
Point
Dated: February 13, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NMFS amends 50 CFR part
600 to read as follows:
1
2
3
1
N Latitude
......
......
......
......
40°2.64′ ..............
39°56.34′ ............
38°51.90′ ............
40°2.64′ ..............
a U.S.
EEZ
65°56.58′.
b U.S.
EEZ
66°55.86′.
*
*
■
1. The authority citation for part 600
continues to read as follows:
§ 600.725
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801
et seq.
2. In § 600.10, add the definition for
‘‘Northeast Canyons and Seamounts
Marine National Monument’’ as follows:
■
§ 600.10
Definitions.
*
*
*
*
*
Northeast Canyons and Seamounts
Marine National Monument means the
area designated by Presidential
Proclamation 9496, consisting of:
(1) Canyons Unit. The Canyons Unit
is defined by the area bounded by
straight lines connecting the following
points, in the order stated:
Point
1
2
3
4
1
...................
...................
...................
...................
...................
PO 00000
Frm 00056
N Latitude
40°31.62′
40°36.00′
40°12.42′
40°7.32′
40°31.62′
Fmt 4700
W Longitude
68°16.08′
67°37.68′
67°34.68′
68°12.72′
68°16.08′
Sfmt 9990
*
67°43.32′
(a)
(b)
67°43.32′
longitude,
approximately
longitude,
approximately
*
*
3. In § 600.725, add paragraph (x) to
read as follows:
PART 600—MAGNUSON–STEVENS
ACT PROVISIONS
■
W Longitude
General prohibitions.
*
*
*
*
*
(x) Fish for commercial purposes
within the Northeast Canyons and
Seamounts Marine National Monument,
as defined in § 600.10, consistent with
Presidential Proclamations 9496 and
10287. Fishing for commercial purposes
means fishing that is intended to, or
results in, the barter, trade, transfer, or
sale of fish, either in whole or in part.
(1) Vessels may transit the Northeast
Canyons and Seamounts Marine
National Monument, provided
commercial fishing gear is stowed and
not available for immediate use during
passage without interruption through
the Northeast Canyons and Seamounts
Marine National Monument.
(2) [Reserved]
*
*
*
*
*
[FR Doc. 2024–03247 Filed 2–15–24; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\16FER1.SGM
16FER1
]]>Agencies
[Federal Register Volume 89, Number 33 (Friday, February 16, 2024)]
[Rules and Regulations]
[Pages 12282-12286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03247]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 240212-0045]
RIN 0648-BL70
Magnuson-Stevens Act Provisions; Prohibition of Commercial
Fishing in the Northeast Canyons and Seamounts Marine National Monument
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action implements regulations for the Northeast Canyons
and Seamounts Marine National Monument. This action is necessary to
conform U.S. fishing regulations to be consistent with Presidential
Proclamations 9496 and 10287, which prohibited commercial fishing in
the Northeast Canyons and Seamounts Marine National Monument and
directed the Secretaries of Commerce and Interior to promulgate
regulations necessary for the proper care and management of the
Monument. The measures herein are intended to define the boundary
coordinates of the Monument area and clarify the prohibition on
commercial fishing in the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) regulations.
DATES: Effective March 18, 2024.
FOR FURTHER INFORMATION CONTACT: Laura Deighan, Fishery Management
Specialist, 978-281-9184.
SUPPLEMENTARY INFORMATION:
Background
On September 15, 2016, the Northeast Canyons and Seamounts Marine
Monument was designated in the waters of the North Atlantic
(Presidential Proclamation 9496; 81 FR 65161, September 21, 2016), to
include both a Canyons Unit and a Seamounts Unit. This Proclamation
prohibited commercial fishing within the Monument, with a 7-year
exemption for the American lobster and Atlantic deep-sea red crab
fisheries. In June 2020, Monument prohibitions were revised via
Proclamation 10049 (85 FR 35793, June 11, 2020) removing commercial
fishing from the list of prohibited activities set forth in the 2016
Proclamation. Most recently, in October 2021, Proclamation 10287 (86 FR
57349, October 15, 2021) restored commercial fishing to the list of
prohibited activities, providing ``for the prohibition of all
commercial fishing in the Monument, except for red crab and American
lobster commercial fishing, which may be permitted until September 15,
2023.''
Approved Measures
Consistent with Proclamation 10287 (68 FR 57349, October 15, 2021)
and the requirements of the Magnuson-Stevens Act, this action defines
the boundary coordinates of the Monument area in the Magnuson-Stevens
Act regulations at 50 CFR 600.10. Tables 1 and 2 below include
coordinates for the Canyons and Seamounts Units.
Table 1--Canyons Unit Coordinates
------------------------------------------------------------------------
Point N Latitude W Longitude
------------------------------------------------------------------------
1.............................. 40[deg]31.62' 68[deg]16.08'
2.............................. 40[deg]36.00' 67[deg]37.68'
3.............................. 40[deg]12.42' 67[deg]34.68'
4.............................. 40[deg]7.32' 68[deg]12.72'
[[Page 12283]]
1.............................. 40[deg]31.62' 68[deg]16.08'
------------------------------------------------------------------------
Table 2--Seamounts Unit Coordinates
------------------------------------------------------------------------
Point N Latitude W Longitude
------------------------------------------------------------------------
1.............................. 40[deg]2.64' 67[deg]43.32'
2.............................. 39[deg]56.34' (\a\)
3.............................. 38[deg]51.90' (\b\)
1.............................. 40[deg]2.64' 67[deg]43.32'
------------------------------------------------------------------------
\a\ U.S. exclusive economic zone (EEZ) longitude, approximately
65[deg]56.58'.
\b\ U.S. EEZ longitude, approximately 66[deg]55.86'.
This rule also reflects Proclamation 10287's prohibition on
commercial fishing within the boundaries of the Monument in the
Magnuson-Stevens Act prohibitions at Sec. 600.725 and clarifies that
commercial fishermen may transit through the Monument if fishing gear
is stowed and not available for immediate use during passage through
the Monument.
Comments and Responses
We published a proposed rule in the Federal Register on October 19,
2023 (88 FR 72038), soliciting public comment. The comment period ended
on November 20, 2023. We received a total of 11,640 comments submitted
by 6 individual commercial and recreational fishermen; 2 academics and
researchers; 11,589 members of the public; and 40 environmental, 2
commercial fishing, and 1 legal organization. One comment related to
wind development, which is not the subject of this action, and is not
discussed further. A more detailed summary of the relevant comments and
our responses is provided below.
Establishment of the Monument and Its Commercial Fishing Prohibition
Comment 1: A total of seven commenters--four individual fishermen,
two members of the public, and one commercial fishing organization--
expressed general opposition to the action because (1) the commercial
fishing prohibition results in the loss of an important fishing ground;
(2) the commercial fishing prohibition will have a negative impact on
fisheries in general or on pelagic longline and highly migratory
species fisheries specifically; (3) the loss of fishing opportunity for
species managed multilaterally by the International Commission for the
Conservation of Atlantic Tunas may result in reductions of U.S. quota,
reallocated to countries with less sustainable management; (4) the
commercial fishing prohibition gives exclusive access to recreational
fisheries, and the area should either be closed or open to all
fisheries without any exceptions; (5) recreational fisheries do not
have the same level of monitoring as commercial fisheries; (6) marine
protected areas are the least effective fisheries management tool and
fail to recognize biology and ecology, are not adaptive, and force
vessels to fish in less desirable areas; (7) fisheries that do not
interact with benthic habitat and/or that have sufficient monitoring in
place should be allowed to fish in the Monument; (8) ``objects of
historic or scientific interest,'' which the Antiquities Act of 1906
(54 U.S.C. 320301-320303) was established to protect, does not include
living marine resources; (9) the Monument does not represent the
``smallest area compatible'' with the proper care and management of the
objects the Monument was established to protect, as required under the
Antiquities Act; (10) the Monument does not provide proper care and
management of highly migratory species, which have a much larger range
than the Monument; (11) the establishment of the Monument was not based
on the best scientific information available; and (12) the commercial
fishing prohibition poses prosecution risk to members of industry if
gear drifts, and vessels will not be able to set gear near the Monument
because of this risk.
A total of 11,627 commenters--11,584 members of the public, 2
individual fishermen, 1 individual researcher, and 40 environmental
organizations--expressed general support for the Monument for reasons
including the Monument is a relatively small area, it is a unique area,
it is in need of protection, it supports sustainable fisheries, and it
balances conservation and economics. One comment further stated that
the Monument should be fully protected and all fishing activity should
be prohibited within its boundaries.
Response: These comments address the establishment of the Monument
and its associated commercial fishing prohibition, which were
implemented through Presidential Proclamations 10287 and 9496. NMFS
does not establish, initiate, or control the marine monument process.
Under the Antiquities Act, the President establishes marine monuments
and makes the final decision on what is protected and what uses will be
restricted upon establishment.
Monument Management Plan
Comment 2: Two comments submitted by commercial fishing
organizations criticize the development of the draft Management Plan,
the lack of public involvement in its development, and the likelihood
of its development having a substantial cost and little benefit.
Response: This rulemaking is separate and distinct from the
development of the draft Management Plan. Further, NMFS is not
primarily responsible for the Management Plan's development. The U.S.
Fish and Wildlife Service is the lead agency responsible for the draft
Management Plan.
Legal Basis and Procedures
Comment 3: One comment submitted by an organization asserts that
NMFS' prohibition on commercial fishing in an area of the Atlantic
Ocean is based on an ``illegal'' Presidential Proclamation issued under
the Antiquities Act. The comment states that the Proclamation exceeds
the President's authority under the Antiquities Act and violates the
U.S. Constitution's separation of powers. Thus, it argues that any
agency action, including this action seeking to include the Monument
and the commercial fishing prohibition in the Magnuson-Stevens Act
regulations, is, among other legal flaws, arbitrary, capricious, and
not in accordance with law. Further, it asserts that the Monument's
prohibition on commercial fishing is outside the President's authority
under the Antiquities Act and that any agency action, including this
rulemaking, taken in furtherance of the Monument designation would
violate the Administrative Procedure Act (APA).
Response: The Monument Proclamations 9496 and 10287 are within the
President's authority under the Antiquities Act, and this rule is
consistent with the APA. NMFS is an agency of the Executive Branch and
thus is required to comply with directives from the President. The
President prohibited commercial fishing in the Monument in the most
recent Proclamation, Proclamation 10287. The Proclamation further
directs NMFS to implement the existing prohibition on commercial
fishing within the Monument.
Section 305(d) of the Magnuson-Stevens Act provides that ``The
Secretary shall have general responsibility to carry out any fishery
management plan (FMP) or amendment approved or prepared by him, in
accordance with the provisions of this Act. The Secretary may
promulgate such regulations, in accordance with section
[[Page 12284]]
553 of Title 5, United States Code, as may be necessary to discharge
such responsibility or to carry out any other provision of this Act''
(emphasis added).
NMFS is responding to a change in law stemming from the Antiquities
Act. Proclamation 10287's prohibition on commercial fishing is
``existing law,'' and section 303(a)(1)(C) of the Magnuson-Stevens Act
requires FMPs to be ``consistent with . . . any other applicable law.''
(Emphasis added). Including the prohibition against fishing in the
Monument in the Magnuson-Stevens Act regulations is consistent with
existing law established by the Proclamation. It should be noted that
both the New England and Mid-Atlantic Fishery Management Councils were
invited to act to implement the Proclamation's prohibition on
commercial fishing, and both declined.
Comment 4: One comment, submitted by a legal organization, states
that the rule seeks to ``conform'' Magnuson-Stevens Act regulations to
the Proclamation's commercial fishing prohibition within the Monument
but, the commenter states, to prohibit commercial fishing under the
Magnuson-Stevens Act, NMFS must conform to the statutory requirements
enacted by Congress in the Magnuson-Stevens Act. The commenter believes
NMFS has ``ignored its duty and provided no analysis under the
Magnuson-Stevens Act. Thus, the rule is, among other legal flaws,
arbitrary, capricious, and not in accordance with law.'' A second
comment, submitted by a commercial fishing organization, similarly
stated that the rule should have included Magnuson-Stevens Act process
requirements and National Standard considerations.
Response: Proclamation 10287 prohibited commercial fishing in the
Monument on October 8, 2021. The prohibition went into effect
immediately (with exceptions for red crab and lobster fishing until
September 15, 2023).
As discussed above, the use of Magnuson-Stevens Act section 305(d)
is necessary to ensure FMPs are consistent with all applicable law, in
accordance with section 303(a)(1)(C). In addition, the placement of
these regulations in the overarching Magnuson-Stevens Act regulations
at part 600 ensures that all existing and future FMPs (i.e., not solely
Greater Atlantic Region management plans) conform to section
303(a)(1)(C)'s mandate that plans are consistent with other applicable
law.
This action is not discretionary and this rule does not impose a
restriction or prohibition on commercial fishing in the Monument. The
restriction and prohibition on commercial fishing within the Monument
exists even in the absence of this rule. This rule is necessary to
document within regulation the boundary coordinates of the Monument
area so that the fishing industry and public can be informed as to the
location of the Monument in order to comply with the commercial fishing
prohibition. This rule is also necessary to document the prohibition on
commercial fishing within the Monument and to ensure the commercial
fishing industry and public are aware that commercial fishing vessels
may transit the Monument provided that all fishing gear is stowed and
unavailable for immediate use. This rule serves to ensure the
commercial fishing industry has the information necessary to comply
with the provisions of the Proclamation without being overburdened
either due to uncertainty as to the boundary coordinates of the
Monument area or uncertainty regarding whether transiting the Monument
is authorized.
Comment 5: Four comments submitted by environmental organizations
expressed support for the inclusion of the Monument commercial fishing
prohibition into the Magnuson-Stevens Act regulations. Three of the
four comments provided the reasoning that the action fulfills the
requirement in section 303(a)(1)(C) that FMPs be consistent with other
applicable laws, in this case the Antiquities Act and Presidential
Proclamations 10287 and 9496. Two of them provided further rationale
that the action is consistent with section 305(d) of the Magnuson-
Stevens Act. One of the comments did not provide further reasoning.
Response: NMFS agrees that section 303(a)(1)(C) of the Magnuson-
Stevens Act requires FMPs to be consistent with other applicable laws
and is implementing this action under the Secretarial authority at
section 305(d).
Comment 6: One comment from a legal organization states that this
rulemaking skirts NMFS' duty to conduct a regulatory flexibility
analysis under the Regulatory Flexibility Act (RFA). When an agency
publishes a general notice of proposed rulemaking, the RFA usually
requires the agency to prepare and make available for public comment an
initial regulatory flexibility analysis (IRFA), which describes the
effect a proposed rule will have on small entities. The commenter
asserts that the lack of an IRFA for this proposed rule violates the
RFA because it is based on the President's illegal action to prohibit
commercial fishing in the Monument.
Response: The RFA generally requires that, when an agency publishes
a proposed rule, as NMFS has done here, it must also ``prepare and make
available for public comment'' an IRFA, that describes ``the impact of
the proposed rule on small entities'' and also seek out and describe
less burdensome alternatives to the proposed rule. However, because the
Monument has been closed to commercial fishing by Proclamation 10287
since October 2021, this rule will have no additional effect on
regulated entities beyond what is already in place. Moreover, the
Proclamation's directive to NMFS to implement the commercial fishing
prohibition gives the agency no discretion to consider or implement any
alternatives. Therefore, NMFS cannot describe less burdensome
alternatives to implementing the existing prohibition on commercial
fishing, because there are no less burdensome alternatives.
While NMFS did not prepare an IRFA, it did comply with the RFA.
Section 605(b) of the RFA indicates that the preparation of an IRFA or
final regulatory flexibility analysis is not required for rules that
``will not, if promulgated, have a significant economic impact on a
substantial number of small entities,'' as certified by the head of the
agency. In such cases, the agency is required to publish the
certification, along with the factual basis for the certification, in
the Federal Register with the notice of proposed rulemaking or the
final rule. The proposed rule included the factual basis for this
determination, as certified to the SBA Office of Advocacy by the Chief
Counsel for Regulation of the Department of Commerce, which
demonstrates that while entities will be subject to this action, they
are already subject to the commercial fishing prohibition, and,
therefore, this action has no additional effect on these regulated
entities.
Comment 7: One comment from a commercial fishing organization
states that taking this action pursuant to an Executive Order citing
the Antiquities Act, instead of using the processes established in the
Magnuson-Stevens Act for closures and other actions, and the lack of
any analysis under the National Environmental Policy Act (NEPA), are
``the antithesis of good governance'' and decries the lack of public
involvement. However, the comment goes on to state: ``We understand
that NMFS has no discretion regarding this action; in fact, the docket
clearly articulates this: `Because this action serves to bring the
Magnuson-Stevens Act regulations into compliance with Presidential
Proclamations 9496
[[Page 12285]]
and 10287, there is no decision-making process for NMFS. NMFS has no
discretion. As a result, there is no decision-making process, no
alternatives to comply with the Proclamations, and no public
involvement in the decision. There is no ``proposal'' for action, as
defined in section 1501.1(a)(5) of the Council on Environmental Quality
regulations implementing the NEPA. Therefore, NEPA does not apply to
this action.' We understand this and therefore cannot argue against
NMFS compliance with the Executive Orders as detailed in the Proposed
Rule.''
Response: We agree with these comments regarding NMFS' lack of
discretion in proposing this rule in compliance with the Proclamations'
requirements. The President established the Monument and prohibited
fishing in the Monument.
Economic Impacts of the Monument and This Action
Comment 8: We received one comment from an individual researcher
and two comments from environmental organizations related to the
impacts of the Monument that, based on analyses submitted as part of
one comment, there is little evidence that the commercial fishing
prohibition had significant economic impacts on commercial fisheries.
The two environmental organizations also commented that the inclusion
of the commercial fishing prohibition into the Magnuson-Stevens Act
regulations would not have additional effects on regulated entities
because the area is already closed to commercial fishing by
Presidential Proclamations 10287 and 9496.
Response: NMFS agrees that this action will have no additional
effect on regulated entities because fishing was previously prohibited
in the Monument.
Opportunities for Public Participation
Comment 9: One environmental organization noted that the Monument
process has included several opportunities for public participation,
including the comment period on this rulemaking and additional comment
periods related to the Monument (e.g., prior to its designation,
throughout the development of a management plan, at New England Fishery
Management Council meetings).
Response: This rulemaking included an opportunity for public
participation through the publication of a proposed rule in the Federal
Register on October 19, 2023 (88 FR 72038), soliciting public comment.
The comment period ended on November 20, 2023. Other actions, including
the Monument's establishment through Presidential Proclamation 9496 and
the development of a management plan and public input submitted in
response to those actions are separate and distinct from this
rulemaking.
Requests for Additional Information
Comment 10: Two comments submitted by members of the public asked
how the fishing prohibition would be enforced, in general or in regard
to foreign fishing fleets.
Response: The commercial fishing prohibition in the Monument will
be enforced with the same resources and tools that are used to enforce
other existing closures and gear-restricted areas, including
enforcement patrols and vessel monitoring and reporting requirements.
Comment 11: One member of the public stated that the reason for the
7-year phase-out for lobster and red crab is unclear and asked whether
there would be regulations limiting the number of lobster and crab pots
and specifying the type of rope used in the Monument for these
fisheries.
Response: The 7-year phase-out for lobster and red crab was
established by Presidential Proclamations 9496 and 10287. Under the
Antiquities Act, the President establishes marine monuments and makes
the final decision on what is protected and what uses will be
restricted upon establishment. NMFS does not establish, initiate, or
control the marine monument process. Presidential Proclamation 10287
established September 15, 2023, as the end of the phase-out period, and
all commercial fishing is currently prohibited in the Monument by
Presidential Proclamation. This action adds the commercial fishing
prohibition within the Monument to the list of prohibited activities at
Sec. 600.725 and does not make any exceptions or differing regulations
for the lobster or red crab fisheries. While lobster and Jonah crab are
managed under the Atlantic Coastal Fisheries Cooperative Management Act
with implementing regulations at part 697, this action applies to the
lobster and Jonah crab fisheries. The definitions (Sec. 697.2(a)) and
prohibitions for lobster (Sec. 697.7(c)(1)) and Jonah crab (Sec.
697.7(h)) state that the Magnuson-Stevens Act definitions at Sec.
600.10 and prohibitions at Sec. 600.725 are also applicable to these
fisheries.
Comment 12: One member of the public commented that it is unclear
why NEPA didn't apply, as a ``proposal'' is being made and a change in
activities allowed is also being implemented.
Response: Section 1501.1(a)(d) of the Council on Environmental
Quality regulations implementing NEPA states that an agency should
consider ``whether the proposed activity or decision, in whole or in
part, is a non-discretionary action for which the agency lacks
authority to consider environmental effects as part of its decision-
making process'' when determining whether NEPA applies. NMFS does not
establish, initiate, or control the marine monument process. The
President established the Monument under the Antiquities Act and made
the final decision on what is protected and what uses are restricted
within the Monument. Because this action serves to bring the Magnuson-
Stevens Act regulations into compliance with Presidential Proclamations
9496 and 10287, there is no decision-making process for NMFS. NMFS has
no discretion. Therefore, NEPA does not apply to this action.
Requests for Additions to the Administrative Record
Comment 13: One comment from an individual researcher requested
that the administrative record include three scientific analyses of
fishing activity in the Monument (Lynham, J., Fishing Activity Before
Closure, During Closure, and After Reopening of the Northeast Canyons
and Seamounts Marine National Monument. Sci. Reports 12, 1-21 (2022).;
Lynham, J., The Northeast Canyons & Seamounts Marine National Monument
and the Atlantic Deep-Sea Red Crab Fishery, Unpublished, 1-14.; Lynham,
J., The Northeast Canyons & Seamounts Marine National Monument and the
Atlantic Lobster Fishery, Unpublished, 1-15.) and one comment from a
commercial fishing organization requested that it include comments it
previously submitted in response to a Notice of Intent to Conduct
Scoping and to Prepare a Draft Environmental Impact Statement for the
Proposed Hudson Canyon National Marine Sanctuary (87 FR 34853, June 8,
2022) and a Review of Certain National Monuments Established Since
1996; Notice of Opportunity for Public Comment (82 FR 22016, May 11,
2017) and two scientific publications (Hampton J, Lehodey P, Senina I,
Nicol S, Scutt Phillips J and Tiamere K (2023), Limited Conservation
Efficacy of Large-scale Marine Protected Areas for Pacific Skipjack and
Bigeye Tunas. Front. Mar. Sci. 9:1060943. doi: 10.3389/
fmars.2022.1060943. Hilborn, R., Kaiser, M.J., A Path Forward for
Analysing the Impacts of Marine Protected Areas. Nature 607, E1-E2
(2022). https://doi.org/10.1038/s41586-022-04775-1).
Response: As comments, including attachments and hyperlinked
references,
[[Page 12286]]
are part of the administrative record, the subject analyses and
comments have been added to the administrative record for this action.
Classification
NMFS is issuing this rule pursuant to section 305(d) of the
Magnuson-Stevens Act to comply with section 303(a)(1)(C) by
promulgating regulations (at Sec. Sec. 600.10 and 600.725) to ensure
that all FMPs implemented by the Secretary of Commerce are consistent
with, and conform to, the Proclamations and the Antiquities Act by
ensuring clearly articulated measures that apply to all commercial
fishing vessels operating in the EEZ. The NMFS Assistant Administrator
has determined that this rule is consistent with other applicable law.
Because this action serves to bring the Magnuson-Stevens Act
regulations into compliance with Presidential Proclamations 9496 and
10287, there is no decision-making process for NMFS. NMFS has no
discretion. As a result, there is no decision-making process, no
alternatives to comply with the Proclamations, and no public
involvement in the decision. There is no ``proposal'' for action, as
defined in section 1501.1(a)(5) of the Council on Environmental Quality
regulations implementing NEPA. Therefore, NEPA does not apply to this
action.
This rule has been determined not to be significant for purposes of
Executive Order 12866.
Regulatory Flexibility Act (RFA)
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. We received one comment
regarding requirements under the RFA. The comment did not contest the
factual basis for the certification. As a result, a regulatory
flexibility analysis was not required and none was prepared.
This rule contains no information collection requirements under the
Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing.
Dated: February 13, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
600 to read as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.10, add the definition for ``Northeast Canyons and
Seamounts Marine National Monument'' as follows:
Sec. 600.10 Definitions.
* * * * *
Northeast Canyons and Seamounts Marine National Monument means the
area designated by Presidential Proclamation 9496, consisting of:
(1) Canyons Unit. The Canyons Unit is defined by the area bounded
by straight lines connecting the following points, in the order stated:
------------------------------------------------------------------------
Point N Latitude W Longitude
------------------------------------------------------------------------
1.............................. 40[deg]31.62' 68[deg]16.08'
2.............................. 40[deg]36.00' 67[deg]37.68'
3.............................. 40[deg]12.42' 67[deg]34.68'
4.............................. 40[deg]7.32' 68[deg]12.72'
1.............................. 40[deg]31.62' 68[deg]16.08'
------------------------------------------------------------------------
(2) Seamounts Unit. The Seamounts Unit is defined by the area
bounded by straight lines connecting the following points, except
between points 1 and 2, where the boundary follows the outer limits of
the U.S. EEZ:
------------------------------------------------------------------------
Point N Latitude W Longitude
------------------------------------------------------------------------
1............................... 40[deg]2.64'...... 67[deg]43.32'
2............................... 39[deg]56.34'..... (\a\)
3............................... 38[deg]51.90'..... (\b\)
1............................... 40[deg]2.64'...... 67[deg]43.32'
------------------------------------------------------------------------
\a\ U.S. EEZ longitude, approximately 65[deg]56.58'.
\b\ U.S. EEZ longitude, approximately 66[deg]55.86'.
* * * * *
0
3. In Sec. 600.725, add paragraph (x) to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(x) Fish for commercial purposes within the Northeast Canyons and
Seamounts Marine National Monument, as defined in Sec. 600.10,
consistent with Presidential Proclamations 9496 and 10287. Fishing for
commercial purposes means fishing that is intended to, or results in,
the barter, trade, transfer, or sale of fish, either in whole or in
part.
(1) Vessels may transit the Northeast Canyons and Seamounts Marine
National Monument, provided commercial fishing gear is stowed and not
available for immediate use during passage without interruption through
the Northeast Canyons and Seamounts Marine National Monument.
(2) [Reserved]
* * * * *
[FR Doc. 2024-03247 Filed 2-15-24; 8:45 am]
BILLING CODE 3510-22-P
