2024-03247. 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°31.62′	68°16.08′
2	40°36.00′	67°37.68′
3	40°12.42′	67°34.68′
4	40°7.32′	68°12.72′
1	40°31.62′	68°16.08′

Table 2—Seamounts Unit Coordinates

Point	N Latitude	W Longitude
1	40°2.64′	67°43.32′
2	39°56.34′	(a )
3	38°51.90′	(b )
1	40°2.64′	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.

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 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 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 § 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 Magnuson-Stevens 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 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, 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.

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

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.

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	N Latitude	W Longitude
1	40°31.62′	68°16.08′
2	40°36.00′	67°37.68′
3	40°12.42′	67°34.68′
4	40°7.32′	68°12.72′
1	40°31.62′	68°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°2.64′	67°43.32′
2	39°56.34′	(a )
3	38°51.90′	(b )
1	40°2.64′	67°43.32′
a  U.S. EEZ longitude, approximately 65°56.58′.
b  U.S. EEZ longitude, approximately 66°55.86′.

* * * * *

3. In §  600.725, add paragraph (x) to read as follows:

§  600.725

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]

* * * * *