2024-02438. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS is amending the Atlantic Large Whale Take Reduction Plan (Plan) to expand the boundaries of the seasonal Massachusetts Restricted Area (MRA) to include the wedge between State and Federal waters known as the Massachusetts Restricted Area Wedge (MRA Wedge). The MRA Wedge was seasonally closed to trap/pot fishing gear by emergency rulemaking in 2022 and 2023 to prevent the immediate risk to the North Atlantic right whale ( Eubalaena glacialis, right whale) of mortality and serious injury caused by entanglement in fixed-gear buoy lines. Substantial observational evidence has documented the consistent presence of right whales within the MRA Wedge from February through April and aerial surveys have similarly documented the presence of aggregated fixed gear in the MRA Wedge during this same time period. Due to the co-occurrence of whales and buoy lines, both in high densities in this area during the specified times of year, this entanglement risk is expected to recur annually. This action will address this gap in protection between seasonally closed State and Federal waters and reduce the incidental mortality and serious injury of right whales, fin whales (Balaenoptera physalus), and humpback whales (Megaptera novaeangliae) in commercial trap/pot fisheries. There is a specific carve out for this rule in the Consolidated Appropriations Act, 2023 (CAA).

DATES:

This rule is effective March 8, 2024.

ADDRESSES:

Copies of this action, including the Final Environmental Assessment (EA) and the Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared in support of this action, are available via the internet at https://www.regulations.gov/​ or by contacting Jennifer Goebel (see FOR FURTHER INFORMATION CONTACT below).

Several of the background documents for the Plan and the take reduction planning process can also be downloaded from the Plan website ( https://www.fisheries.noaa.gov/​ALWTRP). Information on the analytical tools used to support the development and analysis of the final regulations can be found in the EA and appendices. The complete text of current regulations implementing the Plan can be found in 50 CFR 229.32 or downloaded from the Plan's website, along with outreach compliance guides to current regulations.

FOR FURTHER INFORMATION CONTACT:

Jennifer Goebel, 978–281–9175, [e-mail], Colleen Coogan, 978–281–9181, [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The right whale population has been in decline since 2010, with the most recent published estimate of right whale population size in 2022 at 356 whales (95 percent confidence interval: 346–363) (Linden 2023) with a strong male bias (Hayes et al. 2023, Pace et al. 2017, Pace 2021). The steep population decline is a result of high levels of human-caused mortality from entanglement in fishing gear and vessel strikes in both the United States and Canada. An Unusual Mortality Event (UME) was declared for the population in 2017, due to high rates of documented vessel strikes and entanglement in fishing gear. As of January 18, 2024, the UME includes 36 detected mortalities (17 in 2017, 3 in 2018, 10 in 2019, 2 in 2020, 2 in 2021, 0 in 2022, and 2 in 2023). In addition, 35 serious injuries were documented (6 in 2017, 6 in 2018, 3 in 2019, 6 in 2020, 5 in 2021, 4 in 2022, 4 in 2023, and 1 in 2024). Lastly, 51 morbidity (or sublethal injury or illness) cases were documented (13 in 2017, 12 in 2018, 6 in 2019, 6 in 2020, 2 in 2021, 6 in 2022, and 6 in 2023). See 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; in some years population models estimate up to 64 percent of all mortalities are not seen and not accounted for in the right whale observed incident data (Pace et al. 2021, Pace et al. 2017).

The North Atlantic right whale is listed as an endangered species under the Endangered Species Act (ESA) and is a strategic stock under the Marine Mammal Protection Act (MMPA). NMFS is required by the MMPA to reduce mortality and serious injury incidental to commercial fishing to below a stock's potential biological removal (PBR) level. PBR is defined as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” In the most recently published stock assessment report (Hayes et al. 2023), PBR for the North Atlantic right whale population is 0.7 whales per year. Between 2010 and 2024, there has not been a single year where observed mortality and serious injury of right whales was below PBR. Moreover, total estimated mortality has been higher than observed mortality (Hayes et al. 2023, Linden 2023, Pace et al. 2021).

The Plan was implemented in 1997 pursuant to section 118 of the MMPA (16 U.S.C. 1387) to reduce mortality and serious injury of three stocks of large whales (fin, humpback, and North Atlantic right) incidental to certain Category I and II fisheries. Under the MMPA, a strategic stock of marine mammals is defined as a stock for which at least one of the following is demonstrated: (1) the level of direct human-caused mortality exceeds the PBR level; (2) based on the best available scientific information, the stock is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future; or (3) it is listed as a threatened or endangered species under the ESA or is designated as depleted under the MMPA (16 U.S.C. 1362(19)). The North Atlantic right whale is a strategic stock because the human-caused mortality exceeds the PBR level and because it is listed as endangered under the Endangered Species Act. When incidental mortality or serious injury of marine mammals from commercial fishing exceeds a stock's PBR level, the MMPA directs NMFS to convene a take reduction team of stakeholders that includes representatives of the following: Federal agencies; each coastal State that has fisheries interacting with the species or stock; appropriate Regional Fishery Management Councils; interstate fisheries commissions; academic and scientific organizations; environmental groups; all commercial and recreational fisheries groups using gear types that incidentally take the species or stock; and, if relevant, Alaska Native organizations or Indian tribal organizations.^[1]

The Atlantic Large Whale Take Reduction Team (Team) has 59 members, including 23 trap/pot and gillnet fishermen or fishery representatives. The background for the take reduction planning process and initial development of the Plan is provided in the preambles to the proposed rule (62 FR 16519, April 7, 1997), interim final rule (62 FR 39157, July 22, 1997), and final rule (64 FR 7529, February 16, 1999) implementing the initial plan. The Team met and recommended modifications to the Plan, implemented by NMFS through rulemaking, several times since 1997 in an ongoing effort to meet the MMPA take reduction goals.

The most recent modification to the Plan was implemented by a final rule published on September 17, 2021 (86 FR 51970). Mortalities and serious injuries of right whales continue at levels exceeding the right whale's PBR. Additional data on right whale population estimates, including cryptic (unobserved) mortality (Linden 2023, Pace et al. 2021, Pace et al. 2017), the stock's decline, changes in distribution and reproductive rates, and entanglement-related mortalities and serious injuries that have been documented in recent years, can be found in Chapters 2 and 4 of the Final Environmental Impact Statement (NMFS 2021a) and the preamble to the 2021 rule (86 FR 51970, September 17, 2021).

The 2021 rule inadvertently left a critical gap in protection for right whales in waters adjacent to the MRA. Observational sightings from 2018 through 2023 provide empirical evidence of the high risk of overlap between right whales and buoy lines in this area (see figures 2 and 3 below). The 2021 rule expanded the geographic extent of the MRA under the Plan to mirror the area included in the 2021 Massachusetts State Commercial Trap Gear Closure to Protect Right Whales (322 CMR 12.04(2), hereafter referred to as MA State Waters Trap/Pot Closure), which extended restrictions north to the New Hampshire border (figure 1). The MRA, as implemented under the Plan, is in place from February 1 through April 30, while the MA State Waters Trap/Pot Closure area is closed from February 1 through May 15, with the option to open early on April 30 or extend the closure in May depending on right whale sightings and copepod abundance. The implementation of the 2021 MRA expansion left open approximately 200 square miles (518 square kilometers) of Federal waters, called the MRA Wedge, nearly enclosed by State and Federal closures. In addition to gear normally fished in the MRA Wedge (figure 1) during these months, the State water closure caused gear aggregation in this area, necessitating a similar seasonal closure contemporaneous with the State and Federal closures in adjacent waters. Center for Coastal Studies (CCS) and the Northeast Fisheries Science Center (NEFSC) reported consistent observations of right whales within the MRA Wedge from February through April 2018–2023 (figure 3). Aerial surveys conducted by CCS in April 2021 and February and March of 2022 also documented the presence of aggregated fixed fishing gear in the MRA Wedge and in waters north of the MRA (figure 2). Though right whales and the associated entanglement risk are present annually in Federal waters adjacent to Massachusetts before and after the February 1 through April 30 MRA trap/pot closure period, the MRA Wedge poses an acute entanglement risk to right whales from February through April during the MRA closure.

In January 2022, NMFS received letters and emails from Massachusetts Division of Marine Fisheries (MA DMF), Stellwagen Bank National Marine Sanctuary, and non-governmental organizations expressing concerns about this gap in restricted waters and the heightened risk of entanglement for right whales during the MRA closure period from February through April (see Appendix 3.1 in the associated EA for this action for Letters of Concern). After further reviewing available information and considering the high entanglement risk in this relatively small area, NMFS prepared and issued an emergency rule prohibiting trap/pot fishery buoy lines within the MRA Wedge for the month of April 2022 (87 FR 11590, March 2, 2022). Though the January 2022 letter from MA DMF requested a closure to coincide with the MRA closure period, running from February through April, the emergency closure in the MRA Wedge was only implemented in April 2022 due to the months required to prepare a new emergency rule and EA (NMFS 2022) analyzing the potential economic and biological impacts of the closure.

In December 2022, the Team voted by majority on recommendations to further reduce right whale entanglement mortality and serious injury in U.S. commercial fisheries regulated under the Plan. Among the measures recommended was a spatially expanded MRA that would address the entanglement risk in the MRA Wedge and waters farther north, including Jeffreys Ledge. On December 12, 2022, MA DMF requested that NMFS extend the emergency MRA Wedge closure into 2023 and 2024, or until new long-term measures could be implemented. On January 4, 2023, following the signing of the Consolidated Appropriations Act, 2023 (CAA),^[2] MA DMF reiterated its concerns about the unprotected waters of the MRA Wedge and indicated full support for an annual closure of the area from February through May, or as long as the adjacent areas ( i.e., Federal or State waters) remain closed.

On January 31, 2023, NMFS announced an extension of the 2022 emergency rule closing the MRA Wedge to trap/pot fishing with buoy lines from February 1 to April 30 while adjacent Federal waters within the MRA were similarly restricted (88 FR 7362, February 3, 2023; NMFS 2023; see figure 1). On August 22, 2023, MA DMF again reiterated strong support for a permanent annual closure of the MRA Wedge from February through April due to “a level of entanglement risk that is troubling and begs for a permanent management solution.” MA DMF stated in a letter to NMFS that the “gap in the closure . . . created a refuge for fishers to place their gear, leading to extraordinarily high gear densities in the Wedge Area. DMF believes most gear in this area is infrequently hauled and largely being stored in this location . . . .” DMF also provided empirical gear and whale sightings data from 2021 through 2023 that demonstrated the high co-occurrence of gear and right whales.

North Atlantic right whales are known to aggregate in Cape Cod Bay in winter and spring to forage on copepods (Watkins and Schevill 1976, Mayo and Marx 1990, Mayo et al. 2018). The whales begin arriving in Cape Cod Bay and surrounding waters as early as December and typically leave the area during the month of May (Jacquet et al. 2007, Hlista et al. 2009, Pendleton et al. 2009, Plourde et al. 2019, Ganley et al. 2019). Abundance of right whales in Cape Cod Bay during winter and spring has increased over time, despite a declining population size, making protection of Cape Cod Bay and surrounding waters during their presence particularly important for population recovery (Ganley et al. 2019, Hudak et al. 2023). Ganley et al. (2019) found that sightings data do not accurately reflect peak whale presence due to diving behavior that reduces time on the surface. Higher abundances occur in January through March than are detectable through simple whale counts or sightings per unit effort, and the time of peak abundance varies annually, sometimes occurring in March or April (Pendleton et al. 2022). Furthermore, right whale use of Cape Cod Bay has increased in recent years as spring temperatures warm up earlier in the year, suggesting that the time of peak abundance may continue to occur earlier in the year in the future due to climate change (Ganley et al. 2022).

Detections of right whales in the MRA and surrounding waters from February through April demonstrate that whales continue to occupy and travel through the MRA Wedge to feed in waters in and around Massachusetts Bay (figure 3; also see figures 14–19 in the associated EA for this action). Though many right whales aggregate within Cape Cod Bay, they are highly mobile and are also detected visually or acoustically in and around Massachusetts Bay and the MRA Wedge, with a notable increase from February through April (Johnson et al. 2021). Dedicated survey data on right whale presence in February and March in Massachusetts Bay and the MRA Wedge likely underestimate the actual presence of right whales, given lower survey effort in the area north of Cape Cod Bay and variation in whale detection during these months (Ganley et al. 2019). As the right whale's food source declines in April within Cape Cod Bay (Hlista et al. 2009; Ganley et al. 2019, Ganley et al. 2022, Hudak et al. 2023), right whale distribution accordingly shifts and the presence of right whales in the MRA Wedge increases as they leave Cape Cod Bay, contributing to a peak of sightings in Massachusetts Bay in April. It is critical that the MRA includes the MRA Wedge within the boundaries of the existing closure under the Plan to reduce mortalities and serious injuries from entanglements in buoy lines (figure 4).

Changes to the Atlantic Large Whale Take Reduction Plan

This final rule expands the boundaries of the MRA, where the use of persistent trap/pot buoy lines are seasonally prohibited, to include the MRA Wedge (figure 4). This final rule closes this area during the existing MRA closure season under the Plan from February 1 through April 30 (86 FR 51970, September 17, 2021) to reduce acute entanglement risk. As shown above in figures 2 and 3, empirical observations of right whales alongside fixed fishing gear observed in the MRA Wedge from February through April in the years 2018–2023, and the high density of right whales in nearby adjacent waters, demonstrate the urgent need for the closure.

To estimate the reduction of entanglement-related mortality and serious injury risk with the implementation of this final rule, we used the Large Whale Decision Support Tool (DST) version 4.1.0 created by NMFS' Northeast Fisheries Science Center to quantitatively evaluate potential risk outcomes for relevant management actions. The DST incorporates a right whale habitat-based density model built by researchers at Duke University's Marine Geospatial Ecology Laboratory in the Nicholas School of the Environment (Version 12, released February 14, 2022; Roberts et al. 2016a, Roberts et al. 2016b, Roberts et al. 2020, Roberts et al. 2021, Roberts and Halpin 2022; referred to as the Duke University whale density model). The Duke University whale density model estimates the spatiotemporal distribution and density of right whales throughout the U.S. Atlantic based on observations of whales from standardized surveys from January 2010 through September 2020 and co-located oceanographic and habitat variables. As described below, the DST utilizes fishing gear data from 2010–2020. Efforts are underway to add additional years of data. The DST estimates that the MRA Wedge closure produces an approximately 1.8 to 2.3 percent reduction of risk of mortality or serious injury due to entanglement relative to all Northeast trap/pot fisheries. This is equivalent to a total risk reduction of approximately 13 to 16.5 percent for the trap/pot fisheries in Lobster Management Area 1 (LMA 1) Massachusetts waters, where the threat of entanglement is particularly high for right whales.

The best available scientific information demonstrates the need for this action. It also shows that the MRA Wedge closure will likely provide more protection for right whales than the DST estimates because the co-occurrence of right whales and buoy lines is likely higher than the DST estimates. First, the DST utilizes buoy line estimates from 2015–2018 (lobster and Jonah crab in State and Federal waters), 2010–2020 (other Federal trap/pot fisheries), and 2012–2019 (other trap/pot fisheries in State waters). The gap in right whale protections between State and Federal closed waters following the 2021 rule (86 FR 51970, September 17, 2021) likely pushed more gear into the MRA Wedge than the DST estimates, as fishermen moved gear from adjacent closed waters into open waters of the MRA Wedge.^[3] Visual observations of buoy lines in the MRA Wedge during 2021 and 2022, (see e.g., figure 2) and correspondence with Massachusetts DMF (see e.g., the letters from MA DMF, discussed above), further support this conclusion in addition to the DST analysis.

Second, the Duke University whale density model estimates that approximately 0.04 right whales are likely present at any given time in the MRA Wedge throughout the month in February; approximately 1.4 in March; and approximately 3.3 in April (see Table 8 in the associated EA). However, recent right whale sightings data, not yet incorporated into the model, demonstrate a higher concentration of right whales than the Duke University whale density model. For example, on February 23, 2021, the NEFSC aerial survey team observed seven right whales inside the MRA Wedge. On April 8, 2021, a dedicated NEFSC aerial survey team observed 40 right whales in groups of up to 3 within the MRA Wedge. Later the same month, on April 28, 2021, the Center for Coastal Studies aerial survey team observed 19 right whales in the MRA Wedge. On March 7, 2022, NEFSC reported sighting three groups of three right whales (nine whales total) in the middle portion of the MRA Wedge around 42°20′ North latitude. On April 14, 2023, five right whales (a group of four and one individual) were sighted in the southernmost portion of the MRA Wedge. Opportunistic sightings were also reported. On March 14, 2020, two groups of two and three right whales (five whales total) were reported in the middle portion of the MRA Wedge around 42°20′ North latitude. On April 25, 2022, an opportunistic sighting of a group of seven right whales was reported in the southern portion of the MRA Wedge, off of North Scituate.

Additional data support the conclusion that there is a high concentration of right whales in the MRA Wedge. Figure 3 shows a high density of right whale sightings around the MRA Wedge; these whales likely enter or transit through the MRA Wedge. Acoustic detections of vocalizing right whales also confirm their presence in and around the MRA Wedge (see figures 15, 17, and 19 in the associated EA). Finally, right whale presence often goes undetected, and detectability can depend on whale behavioral states (transiting, feeding, socializing; Hain et al. 1999, Pendleton et al. 2009, Clark et al. 2010, Ganley et al. 2019, Ceballos et al. 2022). In summary, there is an acute entanglement risk that occurs annually because of the co-occurrence of buoy lines and right whales in the MRA Wedge if the area remains open to trap/pot fishing in February through April.

The economic impact on the lobster and Jonah crab trap/pot fishery of adding the MRA Wedge to the MRA is estimated to be relatively small compared to the total value of the fishery. All impacted vessels remain authorized to fish trap/pot gear in the open waters of LMA 1, and elsewhere as permitted. We estimate that the MRA Wedge closure will impact between 26–31 vessels each month and that the annual costs, including gear transportation costs and lost revenue, range from $339,000 to $608,000, or $1.7 million to $3 million across 5 years. For this analysis, we evaluated two scenarios. We analyzed a reasonable scenario where half of the vessels would relocate their traps, and the other half would stop fishing.^[4] For vessels that stop fishing, the cost differences include lost revenue, gear relocation costs, and saved operating costs from not fishing. The lower and higher range of cost estimates come from the range of lost revenue of the relocated vessels, and a range of gear relocation costs for all vessels. We calculated the number of vessels impacted using the average number of vessels fishing within the MRA Wedge for the months February, March, and April for each year from 2017 to 2021, according to Vessel Trip Report (VTR) data and adjusted based on the average percentage of LMA 1 lobster-only vessels required to provide VTR data in Massachusetts (41 percent). We also averaged landing values for the time period using landing pounds from VTR data and lobster prices in Massachusetts provided in dealer reports. For more details on the economic analyses, please see (1) the Classification section below; and (2) subsection 6.2 in the associated EA and RIR/FRFA for this final rule.

Comments and Responses

On September 18, 2023, we published the proposed rule to amend the Plan to expand the boundaries of the MRA to include the wedge between State and Federal waters known as the MRA Wedge, along with the draft EA. A 30-day public comment period began on September 18, 2023, and ended on October 18, 2023 (88 FR 63917, September 18, 2023). We reviewed and considered all written and oral public submissions received during the comment period. Comments on the proposed rule and draft EA were accepted as electronic submissions via regulations.gov on docket number NOAA–NMFS–2023–0083. We also accepted public comments at two in-person public hearings on September 26, 2023, in Gloucester, MA, and on September 28, 2023, in Buzzards Bay, MA.

A total of 26 individuals or groups submitted written comments through the regulations.gov comment portal, and 9 speakers submitted comments orally at the public hearings. One speaker submitted the same comment three times, at both public hearings, as well as through written comment. Two speakers submitted the same comments twice, at a public hearing and through a written comment. In total, we received comments from 31 unique commenters (individuals or groups). Of these 31 commenters, 7 were fishermen, 3 were fishing industry associations (2 commenters were members of the same organization, but their comments were different), 6 were other non-governmental organizations, 11 were other members of the public, 2 were State fishery resource managers, and 2 were Federal resource managers. Of the 31 commenters, 13 supported Alternative 1 (No Action), 9 supported Alternative 2 (Preferred), 8 supported Alternative 3, and 1 commenter did not express support for any alternative. Overall, 17 commenters supported taking action, while 13 did not.

We received several comments that were outside the scope of the current rulemaking, primarily related to offshore wind energy development and vessel strikes. NMFS recognizes that recovery of right whales depends on reducing multiple threats to the species across its range, in and beyond U.S. waters. Recovery priorities, efforts, and associated milestones, termed the North Atlantic Right Whale Road to Recovery, are detailed on the NMFS website (see https://www.fisheries.noaa.gov/​species/​north-atlantic-right-whale/​road-recovery).

NMFS undertook this final rule, as analyzed in the Final EA, through MMPA authority specific to incidental take in U.S. commercial fisheries. 16 U.S.C. 1387. Although right whales face threats in addition to commercial fishing, the Plan and the take reduction process focus on monitoring and managing incidental mortality and serious injury of marine mammals in U.S. commercial fisheries. Because comments related to offshore wind development and vessel strikes were outside the scope of this rulemaking, we forwarded these comments to the appropriate staff at NMFS but do not provide individual responses in this document. Below are responses to comments regarding the proposed rule.

Comment 1: Two fishermen stated that they had never seen right whales in this area while fishing; one noted that there is no whale sighting demarcation in the sightings figure (see figure 3 above) in his precise fishing location within the MRA Wedge. Both expressed skepticism about whether right whales use the MRA Wedge.

Response: As noted above and in the EA, visual detections confirm right whale presence in and around Massachusetts Bay and the MRA Wedge, with a substantial presence from February through April (Johnson et al. 2021, survey results from February–April 2018–2023 depicted in figure 3). Sighting locations are specific to when the whale was observed and are an empirical confirmation of presence at a point in time. It is also well-documented that the whales are highly mobile, within and between foraging and breeding areas (Mate et al. 1997, Slay and Kraus 1997, Baumgartner et al. 2017)). Accordingly, protective areas encompass waters between sighting locations. Acoustic detections of vocalizing right whales also confirm their presence in and around the MRA Wedge (see figures 15, 17, and 19 in the associated EA). Because there have been instances of acoustic detections of vocalizing whales that were undocumented by concurrent aerial surveillance (Murray et al. 2022), acoustic data collection is an important supplement to the visual sightings data.

Comment 2: One commenter stated that, although whales may use the area, fishermen have been fishing in this area long before the right whale population started to decline, and therefore any population decline was not related to fishing gear in this area.

Response: NMFS is required to meet the mandates of the MMPA. While co-occurrence of fishing gear and right whales in the MRA Wedge is not new, several changes in recent years have contributed to the need for this closure. First, decline in the right whale population size has reduced the PBR level for the species. Between the 2018 and 2021 Stock Assessment Reports, PBR for North Atlantic right whales declined from 0.9 per year to 0.7 per year (Hayes et al. 2019; Hayes et al. 2022), and, in the most recently published stock assessment report, PBR stands at merely 0.7 whales per year (Hayes et al. 2023).

Second, increased right whale habitat use and fishing gear density in Massachusetts and Cape Cod Bays since 2015 has heightened the risk of right whale mortality and serious injury from entanglement in commercial fishing gear in this area. In the years since the 2015 implementation of the original MRA closure, right whale seasonal habitat use increased in State and Federal waters inside and immediately outside of Cape Cod Bay, particularly in Massachusetts Bay, including the MRA Wedge (Johnson et al. 2021). As explained above and as identified by MA DMF, the 2021 closure of adjacent State waters likely increased the density of gear in the MRA Wedge during the MRA closure period. Observational sightings of whales and gear during surveys conducted from 2018 through 2023 provide empirical evidence of the high risk of overlap between right whales and buoy lines in this area (see figures 2 and 3 above). Recent circumstances and events have increased the risk of lethal entanglement in the MRA Wedge and have exacerbated the adverse population level consequences of any such an entanglement.

Comment 3: Several commenters suggested that the risk to right whales in the MRA Wedge may be underestimated by the DST.

Response: The DST may underestimate risk in the MRA Wedge during February through April. The most current whale habitat density model provided by Duke University (Version 12, released February 14, 2022; Roberts et al. 2016a, Roberts et al. 2016b, Roberts et al. 2020, Roberts et al. 2021, Roberts and Halpin 2022), has not yet incorporated certain empirical data such as dedicated survey sightings from October 2020 to present, nor does it include empirical acoustic and opportunistic right whale detections. These empirical data provide support for the right whale distribution indicated by the Duke University whale density model.

Using the current Duke University whale density model, the DST estimates that risk reduction associated with a MRA Wedge closure is substantial. Recent changes to ocean circulation patterns are causing changes to prey distribution (Record 2019a, Record 2019b), and empirical observations, both visual and acoustic, demonstrate that the waters off Massachusetts are increasingly used seasonally by more right whales. Recent monitoring has also confirmed an increase in seasonal whale presence in Federal waters near Cape Cod Bay, including in the MRA Wedge. The DST provides a reasonable comparison of the relative risk reduction among action and non-action alternatives and a reasonable estimate of the overall risk reduction for each alternative. NMFS considered the empirical evidence showing greater seasonal right whale presence in the MRA Wedge than predicted by the Duke University whale density model. NMFS also considered that buoy-line density would likely be higher in the MRA Wedge than DST estimates. Recent empirical data of right whales and buoy-lines provide the first line of evidence justifying this rulemaking; the DST estimates, which incorporate the Duke University whale density model, provide a strong secondary and supporting line of evidence. Both lines of evidence are the best scientific information available.

Comment 4: One commenter suggested that NMFS was relying on outdated data by using the DST to support adding the MRA Wedge to the MRA, stating that NMFS's final rulemaking should explain why whale distribution data for the past 3 years (2020–2023) were not included in its analysis, and suggesting that NMFS is not using the best scientific data available.

Response: We used the most recent whale distribution data from a variety of sources, including dedicated surveys, acoustic detections, opportunistic sightings, and the Duke University whale habitat model. Although the DST does not utilize whale distribution data after September 2020, NMFS considered whale distribution data from 2010–2023. As noted in the response to Comment 3 and elsewhere, the rule utilizes the best available scientific information, including recent right whale distribution data from 2020–2023. For example, we considered empirical sightings up through the present, including acoustic and observational sightings data from 2018–2023. For a more detailed explanation of the data used as well as the application of the DST model and the data it contains, please see subsections 3.2 and 6.2 in the associated EA.

Comment 5: One commenter suggested that NMFS should evaluate whether the 2021 rule and the 2022 and 2023 emergency rules have been effective in reducing risk outcomes for right whales over the past 2 years before implementing the MRA Wedge as an amendment to the Plan.

Response: As set forth in the Plan's Monitoring Strategy (NERO PRD 2012), we review the Plan's effectiveness and compliance with it annually, through a variety of reports, summaries, and Team meetings. We conduct biological analyses, including evaluating large whale population trends, entanglement events, mortality/serious injury, frequency of reported entanglement events, and data on large whale scarification; disentanglement and gear analyses, including evaluating large whale stranding response, disentanglement response, and collection and identification of recovered gear; and oceanographic and fisheries-based analyses, including evaluating effects of oceanographic trends and commercial fisheries regulation on large whale species. As part of our annual monitoring efforts, we also review fishing industry analyses, including observer data on commercial gear and fishing effort; conduct analysis of law enforcement activities, including collaborating/communicating with law enforcement partners, funding of joint enforcement agreements, and conducting targeted special operations patrols; and undertake analysis of education and outreach activities, including quantifying outreach efforts to the public, evaluating effectiveness of industry liaisons, and evaluating effectiveness of outreach to State and local law enforcement partners. These efforts are shared with the Team every year.

As noted in the Monitoring Strategy, evaluating the effectiveness of the Plan and its components presents several unique challenges, including limited data pertaining to large whale fishery interactions. Large whale entanglements are typically not observed or documented by fishery observers or other sources. Scarring reports indicate that right whales sometimes become entangled but then shed the gear without human intervention, thus, even when serious injuries and mortalities are observed with evidence of entanglement, there is no gear remaining. Furthermore, in most of the limited number of observed entanglement cases with gear still present, fishing gear cannot be removed, and when gear is removed, it can rarely be attributed to a particular gear type, component, fishery, or geographic region due to lack of distinctive marks that would identify the source of the gear (see subsection 5.1.1 in the associated EA).

Nevertheless, the 2022 emergency closure and its extension in 2023 had their intended effect of separating whales from risk during the closure period. Substantial risk reduction is evident, given that vertical buoy lines were not present in the MRA Wedge in April 2022 and February through April 2023—months when large groups of right whales were observed in the area in recent years (including, among other sightings, single day observations of 40 right whales on April 28, 2021 and 9 whales on March 7, 2022). The present rulemaking is therefore necessary to address present and future risk in the MRA Wedge. NMFS reasonably anticipates that the MRA Wedge closure will immediately address entanglement risk from static vertical lines. Removing static vertical lines from the MRA Wedge at the time of year when there is documented high presence of right whales decreases the risk of right whale entanglement. NMFS will continue to consider and address new information as it comes to light.

Comment 6: During the two public hearings in September 2023, several fishermen raised concerns about landings being impacted by the potential crowding effects outside the MRA Wedge closure, especially in late April before Federal waters reopen.

Response: It is unlikely that this closure will affect trap catches due to crowding during the months of February, March, and April, when fishing effort is relatively low, or as compared to summer and fall months when fishing effort is higher. We examined the VTR data from 2019 to 2023 and found decreased effort in April 2022 and increased effort in April 2023 outside the MRA Wedge within one nautical mile (nmi; 1.85 kilometers) to the east of the MRA Wedge closure, an area referred to as the Wedge Buffer Zone (see figure 5),^[5] when compared to 2019 and 2021.^[6] Throughout the years 2019 to 2023, the total reported number of active vessels in the Wedge Buffer Zone in April remained relatively low when compared to other months (see footnote 4).

In April 2022, the MRA Wedge was closed for the first time under the emergency rule (87 FR 11590, March 2, 2022). VTR data showed only one vessel in the Wedge Buffer Zone, and the total number of traps fished increased slightly, relative to reported effort in March 2022, but decreased when compared to April 2019 and 2021. In 2023, the MRA Wedge was closed under the emergency rule (88 FR 7362, February 3, 2023) from February 1 to April 30, 2023. During the emergency closures, crowding was not evident. There were few vessels observed in the Wedge Buffer Zone in the VTR data (one vessel in February, two vessels in March and April 2023). The total number of trips and the total number of traps fished increased significantly, but those increased trips were from the same fisherman who had been fishing in the Wedge Buffer Zone before April 2023.

While VTR data represent a subset of effort, comparing VTR data shows some interannual variability, but does not demonstrate enough displaced effort to cause substantial crowding and reduce catch values due to the closure. Effort that may have moved was still well below the effort that is sustained across LMA 1 Massachusetts waters during the times of year, such as late summer, when more fishermen are actively fishing. Given the low fishing effort in the Wedge Buffer Zone during the emergency closures, NMFS reasonably expects that the fishing effort in other nearby and adjacent waters will be similarly low during the permanent seasonal closure. Accordingly, we do not anticipate effects to landings from crowding outside the MRA Wedge closure.

Comment 7: The MRA Wedge will make it harder for fishermen to get fishing crew to help with harvesting without the option for year-round employment. Temporary or seasonal fishing crew are harder to find.

Response: We recognize that in the past few seasons, the fishing industry, like other employers, experienced labor shortages. Based on a research study by the Society of Human Resource Management (SHRM 2021), nearly 9 in 10 of the organizations surveyed said they were finding it difficult to fill certain open positions—especially those at entry level—and nearly 7 in 10 organizations believe that the expanded COVID–19 unemployment benefits contributed to this difficulty.

Crew on lobster boats are usually paid based on the harvest, so their income is unstable, especially during the winter/spring season when there are more severe weather days and lower catch rates. We understand from scoping meetings and public hearings that if lobster vessels are unable to secure year-round crew at the beginning of the year, they might have to offer higher pay to get crew when peak season starts. Lobster boats without extra crew would likely fish fewer traps and trawls, or may make fewer hauls per trip; therefore, they might experience some catch reduction and lower revenue.

As the pandemic has eased, the labor market has gradually returned to normal. For example, according to the Bureau of Labor Statistics, the Massachusetts unemployment rate dropped from 17 percent in April 2020 to 3 percent in April 2023. With the labor market stabilizing, we do not anticipate that this rule will have a substantial impact on the availability of labor. NMFS will continue to consider new information that becomes available.

Comment 8: In many places where affected fishermen reside, there is very little opportunity to make income by other means, so the MRA Wedge closure will hurt fishermen economically.

Response: NMFS has considered the reliance of impacted communities on lobster fishing and alternative employment opportunities; please see section 6 of the associated EA and section 5 of the RIR for our detailed analyses. In summary, the Massachusetts counties that are home to the affected fishing ports have varying levels of reliance on lobster fishing. All offer other fishery and employment opportunities for any crew or vessel operators impacted by the expansion of the MRA closure area. We note that we considered but did not select a more expansive rulemaking (see Alternative 3 in the associated EA), because of, among other reasons, its potential adverse economic effects on fishermen. The present rule reasonably balances right whale protections with economic impacts.

Comment 9: One commenter requested as much notice as possible regarding permanent rulemaking on this matter to provide sufficient time for the fishing industry to prepare.

Response: We recognize the importance of providing sufficient time for the fishing industry to prepare for regulatory changes. Accordingly, NMFS is providing 30 days' notice before the final rule becomes effective, to allow regulated entities to come into compliance. This will provide the fishing industry with sufficient time to attain compliance by, for example, relocating trap/pot gear from the MRA Wedge to dry storage or to waters open to trap/pot fishing.

Comment 10: One commenter voiced support for implementation of Alternative 2 (this rule) for the years 2024 through 2028, with the understanding that NMFS would thereafter implement amendments to the Plan in accordance with the CAA.

Response: Subject to new data or circumstances, the MRA Wedge addition to the MRA closure is a permanent rulemaking, effective March 8, 2024. NMFS will comply with the CAA to the full extent of the law.

Comment 11: Several commenters stated their position that this regulation is not allowed under the CAA. Specifically, one or more commenters said that the language of the CAA prohibits any additional rulemaking that affects the Northeast lobster/Jonah crab fishery through the end of 2028; that Congress did not grant NMFS the power to transform, or make final, the emergency rule closing the MRA Wedge into a permanent rule; and that the 2023 MRA Wedge Closure is not an extension of the 2022 MRA Wedge Closure, and therefore was not permissible under the CAA.

Response: These comments misunderstand the CAA. NMFS is promulgating this rule pursuant to MMPA section 118. And as explained in the regulation's Classification section, this rule falls under the CAA's § 101(b) exemption.

Section 101(a) of the CAA established that from December 29, 2022, through December 31, 2028, NMFS' 2021 rule “shall be deemed sufficient to ensure that the continued Federal and State authorizations of the American lobster and Jonah crab fisheries are in full compliance” with the MMPA and the ESA. H.R. 2617–1631—H.R. 2617–1632 (Division JJ—North Atlantic Right Whales, Title I—North Atlantic Right Whales and Regulations, § 101(a)). Section 101(a) of the CAA also requires NMFS to promulgate new lobster and Jonah crab regulations, consistent with the MMPA and ESA, that take effect by December 31, 2028. Id. at § 101(a)(2). In § 101(b) of the CAA, however, Congress explained that § 101(a) “shall not apply to an existing emergency rule, or any action taken to extend or make final an emergency rule that is in place on the date of enactment of this Act, affecting lobster and Jonah crab.”

Under § 101(b), NMFS may use its existing rulemaking authority under the MMPA to close the MRA Wedge. Rather than “misstating” § 101(b), as one commenter argued, NMFS is adhering to the text of § 101(b) and its surrounding context because this regulation “make[s] final” the 2022 emergency rule. As described in the regulation's Background and Classification sections, the 2022 emergency rule is the only “emergency rule” that § 101(b) could refer to, and it was “in place on the date of enactment of the CAA,” given the continuing emergency and NMFS' authority under the MMPA to extend that rule at the time of the CAA's enactment. NMFS does not believe, as some commenters seem to suggest, that “in place” means “in effect.” That reading would mean the § 101(b) exemption has no effect—it had no effect when the CAA was enacted, and it would never have any legal effect, since the commenters do not identify any other emergency rule that Congress could reasonably have been referencing in § 101(b) (and there is none for the reasons explained below). As explained in the Classification section below, NMFS declines to adopt a reading of the statute that would render § 101(b) meaningless surplusage.

For further explanation that is responsive to these comments, please see the regulation's Background and Classification sections.

Comment 12: Two commenters claimed that the proposed rule was illegal under Maine Lobstermen's Association v. Raimondo, 70 F.4th 582 (D.C. Circuit 2023) ( MLA), stating that the Court determined that the underlying science supporting the 2021 rule, and by extension this regulation, was invalid based on the Agency's consideration of a “worst-case scenario” in the development of the 2021 Batched Fisheries Biological Opinion (2021 BiOp, NMFS 2021b).

Response: These comments misunderstand MLA. The MLA ruling addressed an ESA Section 7 formal consultation (2021 BiOp) conducted by NMFS regarding Federal authorization of the lobster fishery. By contrast, the 2021 rule underwent a separate and distinct ESA Section 7 informal consultation, and this regulation falls under the informal consultation for the 2021 rule. As explained below in the Classification section, this regulation is simply not “promulgated on the basis of the 2021 Biological Opinion,” as one commenter suggests.

Moreover, the 2021 rule and this regulation are promulgated under the MMPA, not the ESA. The MLA court did not analyze the legal standards set forth in the MMPA. While the court vacated the 2021 BiOp, the panel explained, “we are not convinced the error claimed by the lobstermen is fatal to the [2021 rule].” MLA at 601. In any event, this regulation applies the best available scientific information including recent observational and acoustic detections of right whales; does not consider worst-case scenarios; and is supported by its own administrative record.

Comment 13: One commenter argued that NMFS was “on notice that a court of law has already said it is violating the law,” relying on statements that D.C. District Court Chief Judge Boasberg made during a February 16, 2023 hearing on a motion for a Temporary Restraining Order in Massachusetts Lobstermen's Association, Inc. v. NMFS, No. 1:23–cv–00293 (D.D.C.), which challenged the 2023 emergency rule extension ( i.e.,88 FR 7362). In particular, the commenter quoted the following statement: “I think that the plaintiffs may well have a better argument on the merits than the government. It's a close question and one that I probably need to think about more. But in the time that I have had, I think that Mr. Cragg has probably got a better reading of the way—a better interpretation of the exception.”

Response: Far from “sa[ying] [NMFS] is violating” the CAA, the court made clear that it was not deciding the correct interpretation of the CAA at that hearing. Even the statement quoted by the commenter includes the caveat that “[i]t's a close question and one that [the judge] probably need[s] to think about more.” The court ultimately denied Plaintiff's Motion for a Temporary Restraining Order on other grounds, and the case was dismissed without briefing or ruling on the merits. In any event, we carefully considered these statements and determined that the present rulemaking complies with all applicable laws.

Comment 14: One commenter asserted that the 2023 MRA Wedge closure was illegal and, therefore, this regulation is illegal.

Response: We dispute this characterization of the 2023 MRA Wedge closure. Independently, as described in the Classification section below, we determined that the present rulemaking complies with all applicable laws.

Comment 15: One commenter stated that this rulemaking is occurring outside of the traditional Take Reduction Team process.

Response: The commenter is incorrect; this rulemaking was conducted within the Take Reduction Team process. In January 2022, NMFS received letters and emails from MA DMF, Stellwagen Bank National Marine Sanctuary, and non-governmental organizations expressing concerns about the gap in restricted waters and the heightened risk of entanglement for right whales during the annual MRA closure period from February through April. We brought these letters, and the underlying information, to the Team's attention later that same month, in a January 2022 Team webinar. State, academic, and non-governmental organizations expressed support for including the MRA Wedge in a future Plan amendment, while Massachusetts fishing representatives expressed concerns about economic impacts during a season when effort is generally low and price is sometimes high. The Team discussed the MRA Wedge closure as a future possible Plan amendment and determined it was worth considering for expedited rulemaking, due to its potential for significant risk reduction. In December 2022, a majority of Team members voted in favor of recommending several suites of measures that included expanding the MRA closure to include the MRA Wedge and waters farther north, including Jeffreys Ledge. NMFS considered the Team's December 2022 non-consensus recommendations, and, as the agency ultimately responsible for ensuring that the requirements of the MMPA are met, decided to move forward with promulgating this permanent rule and has explained its reasoning for the present rulemaking.

Comment 16: One commenter noted that Alternative 2 could incentivize lobstermen to stage their trap/pot gear just north of the MRA Wedge during the month of April while waiting for the MRA to reopen on May 1. The commenter suggested that NMFS revise the wet storage regulation to require gear to be hauled out of the water at least once every 14 days. The commenter proposed that staging gear just outside of the restricted areas should be closely monitored and addressed if necessary. Another commenter noted that wherever lines are drawn in the ocean, there will be gear piling up outside those lines.

Response: We recognize that some fishermen may wish to “stage” their gear outside the closures, particularly in April, ahead of the May 1 opening of the MRA. It is possible that a change in current regulations requiring gear to be hauled and reset every 14 days, rather than every 30 days, might encourage the removal of gear to reduce the need for offshore trips during winter months. However, such a change was not considered in the proposed rule or analyzed in the draft EA. Accordingly, it is not being considered for inclusion in this rulemaking. In addition, MA DMF explains that gear in the MRA Wedge is infrequently hauled and is largely used for wet storage, presumably due to the inconvenience of hauling gear on land and, in some cases, the lack of storage areas on land. (See Appendix 3.1 in the associated EA for Letters of Concern). To address this issue, we recommend that fishermen and industry organizations work with partners to locate areas where gear can be stored on land during the seasonal closure.

Comment 17: One commenter questioned whether commercial fishing is any more detrimental to whale populations than commercial shipping, now that weak rope and weak link requirements have been implemented.

Response: Weak rope and weak links provide risk reduction benefits to right whales because they may allow adult right whales to break the lines during an entanglement, reducing the severity of entanglement events. However, further protective measures are needed because weak rope and weak links do not reduce the number of entanglements, nor do they protect right whale calves and young right whales that are not strong enough to break free of these lines before mortalities and serious injuries occur. To further reduce mortalities and serious injuries, we have determined that closures are necessary in areas where there is a high co-occurrence of right whales and vertical lines. Without a closure, entanglement risk is high in the MRA Wedge from February through April, when right whales are present in the area in high numbers.

As the commenter notes, vessel strike risk continues to be of concern. The best available scientific information demonstrates that reduction of both entanglements and vessel strikes is necessary for recovery of the North Atlantic right whale population throughout its range, including in the United States and Canada (Runge et al. 2023). Commercial shipping activities are outside of the scope of this rulemaking.

Comment 18: Several commenters noted that the continued threat posed by the overlap between dense accumulations of gear within the MRA Wedge or along the MRA Wedge borders (fencing) and right whale aggregations requires a permanent management solution rather than consecutive emergency actions.

Response: With respect to waters within the MRA Wedge, this regulation provides a permanent management solution. With respect to open waters just outside the MRA Wedge, we assessed the risk of gear accumulation, known as a fencing or “curtain effect,” in which fishermen displaced by the MRA Wedge closure will instead choose to set their gear along the perimeter of the closure boundary, in an area referred to as the Wedge Buffer Zone (figure 5). As discussed in response to Comment 6, we did this by examining Federal VTR data from 2019 to 2023 to identify trends in fishing effort outside of the MRA Wedge following the 2022 and 2023 emergency closures. The data show that there was not displaced effort sufficient to cause a curtain effect in the Wedge Buffer Zone following the closed periods in 2022 and 2023 (see subsection 6.2.4 in the associated EA).

Nevertheless, not all gear stored in the Wedge Buffer Zone is captured by VTR data; more observational data are needed to evaluate the extent of wet storage in this area. Still, relative to the fishing effort that occurs during more active fishing months such as late summer, the amount of gear displaced is low and unlikely to create a substantial curtain. At this time, the risk of a curtain effect from the MRA Wedge closure is outweighed by the high entanglement risk within the MRA Wedge waters from February through April each year if it remains open during the MRA closure period.

Comment 19: Seven commenters expressed support for Alternative 3, citing: (1) the need for aggressive action to achieve the MMPA goals of reducing incidental mortality and serious injury to below the PBR level; (2) additional incentive for fishermen to remove non-actively fished gear from the water and store the gear on land, as opposed to wet storage in the ocean; (3) concern that Alternative 2 would likely lead to pot/trap gear movement north from the MRA Wedge to other areas where right, humpback, and fin whales historically have been sighted; and (4) the fact that coverage of the entirety of the Stellwagen Bank National Marine Sanctuary would provide consistency with the aims of the Stellwagen Bank National Marine Sanctuary Final Management Plan.

Response: As the commenters noted, Alternative 3 would have greater risk reduction benefits for right whales, and potentially also for fin and humpback whales, as gear removal reduces risk of entanglements. However, Alternative 2 provides a reasonable balance between risk reduction and economic impacts as it will substantially reduce the risk of right whale entanglement during a critical time period, while displacing few fishermen overall and allowing fishermen to continue fishing during that time in areas with less risk. This rulemaking does not specifically target fin and humpback whales. Nevertheless, NMFS concluded that this regulation may benefit fin and humpback whales after considering their known distributions and likely effects on gear movement (see subsection 6.2 in the associated EA and subsection 5.4 of the associated RIR/FRFA). NMFS does not anticipate that this regulation will meaningfully increase entanglement risk to right, humpback, and fin whales in areas outside the MRA and MRA Wedge.

With respect to the Stellwagen Bank National Marine Sanctuary, NMFS refers the commenter to the U.S. Congress's mandate in CAA § 101.

Comment 20: One commenter supported Alternative 3, noting that the difference in economic impacts is relatively small ( i.e., the compliance cost for Alternative 2 is $400 per vessel, compared with $2,000 per vessel for Alternative 3). However, the risk reduction is higher for Alternative 3 than Alternative 2.

Response: The difference in per-vessel compliance costs between Alternative 2 and Alternative 3 is material. And although the overall risk reduction for Alternative 3 is higher than for Alternative 2, the cost for each percentage of risk reduction is higher for Alternative 3 (approximately $30,000–$48,000 per percentage point of risk reduction) than for Alternative 2 (approximately $22,000–$40,000 per percentage point of risk reduction). In other words, Alternative 3 costs more for each percentage of benefit for right whales. While information is not available to conduct a full benefit-cost analysis (see subsection 5.4 of the associated RIR), the cost for each percent of risk reduction provides a useful comparison.

Comment 21: A few commenters suggested that we expand the MRA Wedge to apply to all fixed-gear fisheries.

Response: This rulemaking is limited to trap/pot fishing, the fishery operations that deploy approximately 93 percent of all the buoy lines in U.S. waters (NMFS 2021a) and represent the vast majority of entanglement risk to right whales in the MRA Wedge. Other fixed-gear fisheries were not considered for restrictions in the proposed rule so their inclusion in this final rule is not proper. NMFS is currently working to address the risks posed by other fixed-gear fisheries by considering potential new regulations for non-lobster and Jonah crab fisheries, based on the Team's December 2022 recommendations. Those considerations are ongoing.

Changes From the Proposed Rule

There are no changes to the final rule.

Classification

The NMFS Assistant Administrator has determined that the final rule is consistent with the Plan, with the rulemaking authority under MMPA section 118(f), and with other applicable laws including the Administrative Procedure Act and the CAA, 2023 (H.R. 2617–1631—H.R. 2617–1632, Division JJ—North Atlantic Right Whales, Title I—North Atlantic Right Whales and Regulations).

Consolidated Appropriations Act

On December 29, 2022, President Biden signed H.R. 2617, the CAA, into law. Section 101(a) of the CAA establishes that from December 29, 2022, through December 31, 2028, NMFS' September 17, 2021 rule amending the Plan, Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, published at 86 FR 51970 (September 17, 2021), “shall be deemed sufficient to ensure that the continued Federal and State authorizations of the American lobster and Jonah crab fisheries are in full compliance” with the MMPA and the ESA. H.R. 2617–1631—H.R. 2617–1632 (Division JJ—North Atlantic Right Whales, Title I—North Atlantic Right Whales and Regulations, § 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 § 101(a)(2). Notwithstanding these directions, § 101(b) of the CAA provides that § 101(a) shall not apply to “any action taken to extend or make final an emergency rule that is in place on the date of enactment of this Act, affecting lobster and Jonah crab.”

This final rule complies with CAA § 101(b). The “emergency rule” in § 101(b)'s express exception must refer to the 2022 MRA Wedge rule, 87 FR 11590 (March 2, 2022), because there is no other “emergency rule” to which Congress could have been referring. Moreover, the 2022 emergency rule was “in place” within the meaning of that phrase under § 101(b) at the time of the CAA's enactment on December 29, 2022, thereby satisfying the conditions for the § 101(b) exception.

There is no other “emergency rule” that § 101(b)'s exception could cover because the 2022 emergency rule is the only emergency rulemaking implemented in the past decade under the MMPA, ESA, or any other relevant statutes affecting the lobster and Jonah crab fisheries. Congress would not reasonably have expected NMFS to issue another emergency rule when it was enacting the CAA, or in the short time between when Congress passed and the President signed the CAA, which would have been insufficient time for emergency rulemaking. That is particularly the case because § 101(b) contemplates that NMFS may “extend” or “make final” an emergency rule that is in place at the time of the CAA's enactment, which indicates that Congress was referring to an emergency rule that it had notice of, rather than the possibility of a new hypothetical rule.

The 2022 emergency rule was also “in place on the date of enactment of” the CAA within the meaning of that phrase in § 101(b). Although the 2022 emergency rule's seasonal closure was effective from April 1, 2022, through April 30, 2022, the state of emergency necessitating the rule continued, and NMFS was authorized under MMPA § 118(g) to extend that rule at the time of the CAA's enactment. The 2022 emergency rule closed the MRA Wedge for 30 days under MMPA § 118(g)(3). After that 30-day closure, NMFS retained authority to extend the 2022 emergency rule for 90 additional days under MMPA § 118(g)(4), which allows an extension of an emergency rule where “incidental mortality and serious injury of marine mammals in a commercial fishery is continuing to have an immediate and significant adverse impact on a stock or species.” That was the case at the time of the CAA's enactment because, after the 2022 emergency rule was no longer in effect, right whales continued to occupy and travel through the MRA Wedge annually during February through April, while trap/pot fishermen also continued to fish and stage gear there at great risk of causing incidental mortality or serious injury by entanglement. The MMPA does not require that emergency rule extensions are coterminous in time with the original emergency rule.^[7] Accordingly, because NMFS was authorized to extend the rule under MMPA § 118(g)(4), the 2022 emergency rule was “in place” within the meaning of the CAA at the time of its enactment, even though the seasonal closure required by that rule was no longer in effect. If Congress intended to limit CAA § 101(b) to an emergency rule that was “ in effect” on the date of the CAA's enactment, Congress could have used that language.

Any other reading of the statute would deprive the § 101(b) exception of any legal effect. Commenters objecting to NMFS's reading of the CAA did not identify any other emergency rule to which § 101(b) could reasonably refer, and as explained above, there is no other emergency rule that could be subject to § 101(b). NMFS declines to adopt a reading of the statute that would render § 101(b)—one of only two subsections in § 101 of the CAA—meaningless.

Based on the foregoing reading of the CAA, NMFS “extend[ed]” the 2022 emergency rule, CAA § 101(b), the following year by closing the MRA Wedge from February 1, 2023 through April 30, 2023 to match the broader closure of Federal waters in the MRA. This rule seeks to “make final,” CAA § 101(b), the 2022 emergency rule by incorporating the MRA Wedge into the larger MRA boundaries. The final rule is based on the scientific evidence demonstrating the annual recurrence of high entanglement risk in the MRA Wedge— i.e., direct observations of right whales and extensive fishing gear occupying the MRA Wedge annually from February through April—and the supporting DST analysis. The final rule would therefore “make final” the MRA Wedge closure under the Plan, in accordance with the MMPA and CAA.

National Environmental Policy Act

NMFS prepared a Final EA for this rule that discusses the potential impacts on the environment of changes to the Plan. In addition to the status quo (Alternative 1), two alternatives are analyzed: Alternative 2 (preferred and the basis of this rule) and Alternative 3. Alternative 1 (No Action) would maintain the status quo as implemented in 2021. Alternative 2 (Preferred Alternative) would add the MRA Wedge, approximately 200 square miles (518 square kilometers) of Federal waters adjacent to the existing MRA, to the MRA during the current closure period of February 1 through April 30. (We note that, in 2024, the MRA Wedge closure will occur after February 1, due to the 30-day delay in effectiveness after publication, to provide adequate notice.) Alternative 3 would add approximately 1,297 square miles (3,359 square kilometers) to the MRA and extend the northern MRA boundaries up to the New Hampshire border during the same time period.

Alternative 2 is estimated to reduce risk of mortality or serious injury from entanglement in trap/pot gear in the Northeast by approximately 1.8 to 2.3 percent. Alternative 3 is estimated to reduce risk by 3.1 to 5.3 percent. The difference in impact between the two alternatives is even greater when considering local risk in the area in LMA 1 Massachusetts waters, an area with particularly high entanglement risk during the MRA closure months (13 to 16.5 percent risk reduction under Alternative 2, compared to 22.6 to 38.3 percent under Alternative 3). Overall, the economic impacts of Alternative 2 result in an estimated total annual cost (including lost revenue) of $339,000 to $608,000, with approximately 26 to 31 affected vessels, or $1.7 million to $3 million over 5 years. Alternative 3 is estimated to impact 53 to 66 vessels for an estimated annual cost (including lost revenue) of $898,000 to $1,453,000 and an estimated total 5-year cost of $4.5 million to $7.3 million. The social and economic impacts on the human community would decrease year by year as fishermen adapt to the restricted area. A copy of the EA is available in the docket or from NMFS (see ADDRESSES ).

Executive Order 12866—Regulatory Planning and Review

This final rule has been determined to be not significant for the purposes of Executive Order 12866. NMFS has prepared a regulatory impact review.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, requires agencies to assess the economic impacts of their regulations on small entities. The objective of the RFA is to consider the impacts of a rulemaking on small entities, and the capacity of those affected by regulations to bear the direct and indirect costs of regulation. We prepared a final regulatory flexibility analysis (FRFA) in support of this action, as required by section 603 of the RFA. The FRFA describes the economic impact this final rule will have on small entities. Although we analyzed an alternative that would close a larger area and result in greater risk reduction (see Alternative 3 in the associated EA), twice as many small entities would have been affected and each risk reduction unit would cost 19 to 32 percent more than the alternative implemented under this final rule. While the risk reduction estimate for this alternative was higher, it was not selected due to, among other reasons, its economic effects on fishermen. The present rule reasonably balances right whale protections with economic impacts. A description of the action, why it is being considered, and its legal basis are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of this analysis is available in the docket or from NMFS (see ADDRESSES ), and a summary follows.

The FRFA analysis estimates that 1,273 distinct entities had at least one LMA 1 Federal lobster permit in 2021, and 39 distinct entities were in other trap/pot fisheries. All of them are small entities with annual landings value below $11 million. While considering the compliance costs for the small entities, it is worth noting that the vast majority of the regulated entities are located far away from the MRA Wedge so that it would not be economically feasible to travel to this area to fish. Therefore, this final rule would directly affect relatively few entities that actually fished with vertical lines in the MRA Wedge within the past five seasons (2017–2021). Alternative 2 would affect 26 to 31 entities, with the estimated annual compliance costs ranging from $339,000 to $608,000. The estimated cost for each entity ranges from $9,500 to $19,100. Alternative 3 would affect 53 to 66 entities, and the estimated annual compliance costs range from $898,000 to $1,453,000. The estimated cost for each entity ranges from $9,900 to $20,500.

Paperwork Reduction Act

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

Endangered Species Act

NMFS completed an ESA Section 7 consultation on the implementation of the Plan on July 15, 1997, and concluded that the action was not likely to adversely affect any ESA-listed species under NMFS' jurisdiction. Five subsequent consultations were conducted in 2004, 2008, 2014, 2015, and 2021, when NMFS amended the Plan. This final rule falls within the scope of the analysis conducted in the informal ESA Section 7 consultation on the implementation of the Plan (May 25, 2021), and a separate consultation is not required for this action. NMFS, as both the action agency and the consulting agency, reviewed the changes and determined that the measures as revised through this rulemaking would not affect ESA-listed species under NMFS' jurisdiction in a manner that had not been previously considered.

This final rule is a separate action independent from the 2021 ESA Section 7 Consultation on the: (a) Authorization of the American Lobster, Atlantic Bluefish, Atlantic Deep-Sea Red Crab, Mackerel/Squid/Butterfish, Monkfish, Northeast Multispecies, Northeast Skate Complex, Spiny Dogfish, Summer Flounder/Scup/Black Sea Bass, and Jonah Crab Fisheries and (b) Implementation of the New England Fishery Management Council's Omnibus Essential Fish Habitat Amendment 2 (2021 BiOp; NMFS 2021b). The final rule was not developed during the fisheries consultation process that culminated in the 2021 BiOp, and the final rule satisfies the ESA and MMPA requirements through a consultation that was entirely distinct from the 2021 BiOp. The final rule is not associated with the 2021 BiOp and was not analyzed under the 2021 BiOp, nor does the 2021 BiOp provide ESA coverage for the final rule.

References

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List of Subjects in 50 CFR Part 229

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

Dated: February 1, 2024.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 50 CFR part 229 as follows:

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

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

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

2. Amend § 229.32 by revising paragraph (c)(3)(i) to read as follows:

§ 229.32

Atlantic large whale take reduction plan regulations.

* * * * *

(c) * * *

(3) * * *

(i) Area. The Massachusetts Restricted Area is bounded landward by the Massachusetts shoreline, from points MRA1 through MRA3 bounded seaward by the designated Massachusetts State waters boundary, and then bounded by a rhumb line connecting points MRA3 through MRA10 in order as detailed in table 11 to this paragraph (c)(3)(i);

Table 11 to Paragraph ( c )(3)( i )

Point	N Lat.	W Long.
MRA1	42°52.32′	70°48.98′
MRA2	42°52.58′	70°43.94′
MRA3	42°39.77′	70°30′
MRA4	42°30′	70°30′
MRA5	42°30′	69°45′
MRA6	41°56.5′	69°45′
MRA7	41°21.5′	69°16′
MRA8	41°15.3′	69°57.9′
MRA9	41°20.3′	70°00′
MRA10	41°40.2′	70°00′

* * * * *

Footnotes

1.  There are no Alaska Native or Indian tribal organizations on the Atlantic Large Whale Take Reduction Team.

2.  The CAA at § 101(a) declares that “for the period beginning on the date of enactment of this Act and ending on December 31, 2028, the Final Rule amending the regulations implementing the Atlantic Large Whale Take Reduction Plan (86 FR 51970) shall be deemed sufficient to ensure that the continued Federal and State authorizations of the American lobster and Jonah crab fisheries are in full compliance with the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).” H.R. 2617–1631—H.R. 2617–1632, Division JJ—North Atlantic Right Whales, Title I—North Atlantic Right Whales and Regulations. However, CAA § 101(b) provides that the “provisions of subsection (a) shall not apply to an existing emergency rule, or any action taken to extend or make final an emergency rule that is in place on the date of enactment of this Act, affecting lobster and Jonah crab.” This rule falls under that exemption for the reasons explained in the Classification section.

3.  NMFS also recognizes the reductions in buoy lines caused by the MRA Wedge emergency closures in April 2022 and February through April 2023.

4.  The best available data of trap/pot restricted areas show that removal of gear is more likely for nearshore areas, such as the MRA Wedge, where fishermen can have long transit distances to open areas, and because fishermen are also restricted in State waters. However, fishermen who fish in the MRA Wedge must have Federal permits, and so they would be able to move their fishing gear to open Federal waters in LMA 1 or elsewhere, as permitted. Discussions with Massachusetts fishermen in 2022 indicated that relocating gear outside the closure area is especially attractive in times of high lobster prices such as 2021 and the spring of 2022 (Mike Lane comments to the Team in January 2022, Robert Martin, pers. comm. 2022). Relocating gear is more likely for fishermen fishing out of the northern ports ( e.g., ports in Essex county), closer to open Federal waters. Fishermen fishing out of the more southern ports ( e.g., ports in Plymouth county) are more likely to remove their gear from the water. Based on Vessel Trip Report (VTR) data, transit distances to open waters, and the economics of the fishery, we determined that a 50/50 split between gear removal from the water and trap relocation served as a reasonable basis for our analysis. See RIR at section 5.4.4 for more details.

5.  Because the minimum trawl length in LMA 1 in the area 3–6 nmi (5.6–11 km) offshore is 10–15 traps, which is approximately a trawl length of 1 nmi (1.9 km), if a fisherman is relocating traps just outside the MRA Wedge to have easy access to the area when it opens, the Wedge Buffer Zone is the most likely area (1 nmi [1.9 km] next to the MRA Wedge) for these traps to be placed.

6.  During 2020, the pandemic year, most vessels did not fish regularly in the spring. Therefore, we did not consider 2020 data to be representative or informative.

7.  NMFS does not, however, retain extension authority ad infinitum. For example, if the extension is unreasonably attenuated from the original emergency rule, an extension is improper. In contrast, the 2023 emergency rule extension was a single extension that immediately followed the original 2022 emergency rule during the subsequent migration season, while all other material features of the ongoing emergency remained constant. Moreover, the ongoing emergency was seasonal, given the timing of right whale migrations in and around the MRA Wedge and the timing of the MRA closure in adjacent waters. The 2023 emergency rule extension was, accordingly, seasonally consecutive with the 2022 emergency rule. Under the emergency rulemaking's applicable facts and circumstances, NMFS properly utilized MMPA § 118(g)(4), given the close nexus between the 2022 emergency rule and its 2023 emergency rule extension.