Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8333 

1These notifications of enforcement of the 

regulation can be found at: https://regulations.gov 

by searching for docket number USCG–2024–0106, 

and USCG–2024–0085. 

a portion of the safety zone as listed in 

33 CFR 165.T07–0806(a)(1), and the 

safety zones listed in (a)(2) and (a)(3) on 

February 2, 2024 through February 10, 

2024, for the AXIOM–3 Commercial 

Crew mission reentry vehicle 

splashdown, and the associated 

recovery operations in the U.S. EEZ. 

These safety zones are located within 

the COTP Savannah Area of 

Responsibility (AOR) offshore of 

Jacksonville, Florida. The Coast Guard 

is activating these safety zones in order 

to protect vessels and waterway users 

from the potential hazards created by 

reentry vehicle splashdowns and 

recovery operations. In accordance with 

the general regulations in 33 CFR part 

165, subpart C, no U.S.-flagged vessel 

may enter the safety zones unless 

authorized by the COTP Savannah or a 

designated representative except as 

provided in § 165.T07–0806(d)(3). All 

foreign-flagged vessels are encouraged 

to remain outside the safety zones. 

There are two other safety zones listed 

in § 165.T07–0806(a)(2) through (a)(5), 

which are located within the COTP St. 

Petersburg and Jacksonville AORs, that 

are being simultaneously activated 

through separate notifications of 

enforcement of the regulation document 

issued under Docket Numbers USCG– 

2024–106, and USCG–2024–0085.1

Twenty-four hours prior to the 

Axiom-3 recovery operations, the COTP 

Jacksonville, the COTP Savannah, the 

COTP St. Petersburg, or designated 

representative will inform the public 

that whether any of the five safety zones 

described in § 165.T07–0806, paragraph 

(a), will remain activated (subject to 

enforcement). If one of the safety zones 

described in § 165.T07–0806, paragraph 

(a), remains activated it will be enforced 

for four hours prior to the Axiom-3 

splashdown and remain activated until 

announced by Broadcast Notice to 

Mariners on VHF–FM channel 16, and/ 

or Marine Safety Information Bulletin 

(as appropriate) that the safety zone is 

no longer subject to enforcement. After 

the Axiom-3 reentry vehicle 

splashdown, the COTP or a designated 

representative will grant general 

permission to come no closer than 3 

nautical miles of any reentry vehicle or 

space support vessel engaged in the 

recovery operations, within the 

activated safety zone described in 

§ 165.T07–0806, paragraph (a). Once the 

reentry vehicle, and any personnel 

involved in reentry service, are removed 

from the water and secured onboard a 

space support vessel, the COTP or 

designated representative will issue a 

Broadcast Notice to Mariners on VHF– 

FM channel 16 announcing the 

activated safety zone is no longer 

subject to enforcement. The recovery 

operations are expected to last 

approximately one hour. 

The Coast Guard may be assisted by 

other Federal, State, or local law 

enforcement agencies in enforcing this 

regulation. 

Dated: February 1, 2024. 

Nathaniel L. Robinson, 

Commander, U.S. Coast Guard, Captain of 

the Port Savannah. 

[FR Doc. 2024–02404 Filed 2–6–24; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 240201–0032] 

RIN 0648–BM31 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: 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, 

jennifer.goebel@noaa.gov, Colleen 

Coogan, 978–281–9181, 

colleen.coogan@noaa.gov. 

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, 


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1There are no Alaska Native or Indian tribal 

organizations on the Atlantic Large Whale Take 

Reduction Team. 

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-lifedistress/2017-2023-north-atlantic-rightwhale-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 


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Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8335 

2The 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. 

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). 

BILLING CODE 3510–22–P 


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khammond on DSKJM1Z7X2PROD with RULESER07FE24.030</GPH>

0 510 20 30 40 --=•--==--- ======----Nautical Miles 

Massachusetts Restricted Area 

MA State Waters Trap/Pot .Closure 

Figure I -Massachusetts Restricted Area, MRA Wedge, and MA State Waters 

Trap/Pot Closure Areas 
Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8337 


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l021 and 1022 Fixed-Fishh1g 'G~tt (# Buev,s) 

Gear Sightings Collected by * 1 • 7., 10 

Center for Coa$1.l Studies • z - ~ a .u -1s 

Aerial Surveys • 4 - 6 e10- as 

10°3fYW 

10 

,__ ____ _.J'4autle9I Miles 

1111 M~thusetts Restricted Area 

~.MAA~e 

Figure 2 -- Fixed-Fishing Gear Observed by CCS Within Portions of the 

Massachusetts Restricted Area, MRA Wedge, and Other Adjacent Waters 
8338 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 


khammond on DSKJM1Z7X2PROD with RULESER07FE24.032</GPH>

North Atlantie right wl'tale sightings 

Feflruc1ry-Aptil 2018401$ • 

(:sJMRAWedge 

- Massachusetts Restricted Area 

10 

+ 1 .. 1'·3 

oedaeateti • + 14 • 6 

$un,ey + 7· m 

S{ghtings +' it• 15 

• l~I-2U + 21-30 

Opportunistic 

Sightings 

~ 1 

+ 2- 3 • 4.-6 

c:li 7-10: 

qp· tl·-15. 

a:{p 16-20 

a:ff:a· 2:1 • 30 

Figure 3 -- North Atlantic Right Whale Sightings Spanning February-April 2018-2023 

in Portions of the Massachusetts Restricted Area, MRA Wedge, and Other Adjacent 

Waters 
Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8339 

BILLING CODE 3510–22–C 

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 


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71°w 10°3o•w 69°30'W 

MRA1 

110cw 

Figure 4 -- Coordinates for the Boundaries of the Massachusetts Restricted Area 
8340 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 

3NMFS also recognizes the reductions in buoy 

lines caused by the MRA Wedge emergency 

closures in April 2022 and February through April 

2023. 

4The 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. 

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. 


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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 inperson 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 nongovernmental 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/roadrecovery). 

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 welldocumented 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 cooccurrence 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. 


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5Because 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. 

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 buoylines 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 


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Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8343 

when compared to other months (see 

footnote 4). 

BILLING CODE 3510–22–P 

BILLING CODE 3510–22–C 

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 yearround 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 


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70"50'W 

[SJ MAA Wedge 

- Massachusetts Restricted Area 

70"40'W 70"30'W 10°2.0w 70"10'W 

Figure 5. One nautical mile Wedge Buffer Zone to the east of the MRA Wedge. 
8344 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 

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 worstcase 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 


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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). 


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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 nonactively 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 fixedgear 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 


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Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 8347 

7NMFS 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. 

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. 


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8348 Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 / Rules and Regulations 

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. 

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Large Whale Take Reduction Plan: Risk 

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Regional Fisheries Office. 

NMFS. 2021b. Endangered Species Act 

Section 7 Consultation on the: (a) 

Authorization of the American Lobster, 

Atlantic Bluefish, Atlantic Deep-Sea Red 

Crab, Mackerel/Squid/Butterfish, 

Monkfish, Northeast Multispecies, 

Northeast Skate Complex, Spiny Dogfish, 

Summer Flounder/Scup/Black Sea Bass, 

and Jonah Crab Fisheries and (b) 

Implementation of the New England 

Fisheries Management Council’s 

Omnibus Essential Fish Habitat 

Amendment 2. NMFS GARFO May 28, 

2021. 

NMFS. 2022. Environmental Assessment, 

Finding of No Significance, and 

Regulatory Impact Review for the 2022 

Emergency Final Rule to Reduce Right 

Whale Interactions with Lobster and 

Jonah Crab Trap/Pot Gear. NOAA, 

National Marine Fisheries Service, 

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Pace, R.M., P.J. Corkeron, and S.D. Kraus. 

2017. State-space mark-recapture 

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Knowlton, and H.M. Pettis. 2021. Cryptic 

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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′ 

* * * * * 

[FR Doc. 2024–02438 Filed 2–6–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230306–0065; RTID 0648– 

XD706] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Reallocation of 

Pollock in the Bering Sea and Aleutian 

Islands 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; reallocation. 

SUMMARY: NMFS is reallocating the 

projected unused amounts of the Aleut 

Corporation and the Community 

Development Quota (CDQ) pollock 

directed fishing allowance (DFA) from 

the Aleutian Islands subarea to the 

Bering Sea subarea. This action is 

necessary to provide the opportunity for 

the harvest of the 2024 total allowable 

catch (TAC) of pollock, consistent with 

the goals and objectives of the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (BSAI). 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), February 7, 2024, 

through 2400 hours, A.l.t., December 31, 

2024. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 


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