[Federal Register Volume 87, Number 41 (Wednesday, March 2, 2022)]
[Rules and Regulations]
[Pages 11590-11596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04291]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 220223-0053]
RIN 0648-BL26


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: Temporary rule; emergency final rule.

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SUMMARY: NMFS is implementing a temporary emergency rule to prohibit 
trap/pot fishery buoy lines between Federal and State waters within the 
Massachusetts Restricted Area during the month of April 2022 to reduce 
the incidental mortality and serious injury to North Atlantic right 
whales (Eubalaena glacialis) in commercial lobster and Jonah crab trap/
pot fisheries. This emergency rule is necessary to reduce the risk of 
right whale mortality and serious injury in buoy lines in an area with 
a high co-occurrence of whales and buoy lines.

DATES: Effective April 1, 2022, through April 30, 2022.

ADDRESSES: Copies of the documents associated with this emergency rule 
are available at https://www.fisheries.noaa.gov/alwtrp or by emailing 
Marisa Trego at <a href="/cdn-cgi/l/email-protection#0964687b607a68277d7b6c6e664967666868276e667f"><span class="__cf_email__" data-cfemail="2a474b5843594b045e584f4d456a44454b4b044d455c">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Marisa Trego, 978-282-8484, 
<a href="/cdn-cgi/l/email-protection#a3cec2d1cad0c28dd7d1c6c4cce3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="9cf1fdeef5effdb2e8eef9fbf3dcf2f3fdfdb2fbf3ea">[email protected]</span></a>, Colleen Coogan, 978 281-9181, 
<a href="/cdn-cgi/l/email-protection#f5969a999990909bdb969a9a92949bb59b9a9494db929a83"><span class="__cf_email__" data-cfemail="eb888487878e8e85c58884848c8a85ab85848a8ac58c849d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    The North Atlantic right whale (Eubalaena glacialis, hereafter 
referred to as right whale) population has been in decline since 2010, 
with the most recent published estimate of right whale population size 
in 2019 at 368 whales (<plus-minus>11) with a strong male bias (Pace et 
al. 2017, Pace 2021). Preliminary 2020 and 2021 data suggest the 
decline has continued and that fewer than 350 individuals remain 
(Pettis et al. 2022). Though this population estimate is not final and 
still undergoing final peer review, it relies upon the same peer-
reviewed population models used in

[[Page 11591]]

Pace et al. (2017) and Pace (2021) and is not expected to change 
significantly in the final publication. The steep population decline is 
a result of high levels of human-caused mortality caused by 
entanglement in fishing gear and vessel strikes in both the U.S. and 
Canada. An Unusual Mortality Event, as defined in section 410 of the 
Marine Mammal Protection Act (MMPA), was declared for the population in 
2017 as a result of high rates of entanglement in fishing gear and 
vessel strikes. As of January 2022, the Event includes 34 detected 
mortalities (17 in 2017, 3 in 2018, 10 in 2019, 2 in 2020, and 2 in 
2021). In 2020, 16 serious injuries were documented (2 in 2017, 5 in 
2018, 1 in 2019, 4 in 2020, and 4 in 2021; see: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event). Mortality is higher than 
what has been observed, according to population models that estimate 
that 64 percent of all mortalities are not observed and accounted for 
in the right whale observed incident data (Pace 2021, Pace et al. 
2021).
    The North Atlantic right whale is listed as an endangered species 
under the Endangered Species Act, and considered a strategic stock 
under the Marine Mammal Protection Act (MMPA). NMFS is required by the 
MMPA to reduce the risk of serious injury and death caused by 
entanglement in commercial fishing gear to a rate below the potential 
biological removal level (PBR), prescribed as the maximum number of 
animals that can be removed annually while allowing a marine mammal 
stock to reach or maintain its optimal sustainable population level. 
PBR for the North Atlantic right whale population was 0.7 whales per 
year in the most recently published draft stock assessment report (NMFS 
2021a). Between 2010 and 2021, there has only been one year where 
observed mortality and serious injury of right whales fell below the 
PBR at the time, which was an individual with a partial serious injury 
given a prorated quantity of 0.75. With the total estimated mortality 
well above PBR, additional measures are urgently needed to reduce the 
impact of U. S. Atlantic fisheries on right whales.
    The Atlantic Large Whale Take Reduction Plan (Plan) was originally 
developed pursuant to section 118 of the MMPA (16 U.S.C. 1387) to 
reduce mortality and serious injury of three stocks of large whales 
(fin, humpback, and North Atlantic right) incidental to Category I and 
II fisheries. Under the MMPA, a strategic stock of marine mammals is 
defined as a stock: (1) For which the level of direct human-caused 
mortality exceeds the Potential Biological Removal (PBR) level; (2) 
which, based on the best available scientific information, is declining 
and is likely to be listed as a threatened species under the Endangered 
Species Act (ESA) of 1973 within the foreseeable future; or (3) which 
is listed as a threatened or endangered species under the ESA or is 
designated as depleted under the MMPA (16 U.S.C. 1362(19)). When 
incidental mortality or serious injury of marine mammals from 
commercial fishing exceeds a stock's PBR level, the MMPA directs NMFS 
to convene a take reduction team made up of stakeholders, including: 
representatives of Federal agencies; each coastal state which has 
fisheries which interact 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 and gear types which 
incidentally take the species or stock; and, if relevant, Alaska Native 
organizations or Indian tribal organizations.\1\
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    \1\ There are no Alaska Native or Indian tribal organizations 
participating in fisheries managed under the Atlantic Large Whale 
Take Reduction Team.
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    The Atlantic Large Whale Take Reduction Team (ALWTRT) was 
established in 1996 and has 60 members, including about 22 trap/pot and 
gillnet fishermen or fishery representatives. The background for the 
take reduction planning process and initial development of the Plan is 
provided in the preambles to the proposed (62 FR 16519, April 7, 1997), 
interim final (62 FR 39157, July 22, 1997), and final (64 FR 7529, 
February 16, 1999) rules implementing the initial plan. The 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.
    Mortalities and serious injuries of right whales in U.S. fishing 
gear and first seen in U.S. waters at levels above PBR have continued. 
NMFS informed the Team in late 2017 that it was necessary to reconvene 
to develop recommendations to reduce the impacts of U.S. commercial 
fisheries on large whales with a focus on reducing risk to the 
declining North Atlantic right whale population. During a Team meeting 
in April 2019, the Team recommended a framework of measures to modify 
lobster and Jonah crab trap/pot trawls within the Northeast Region 
Trap/Pot Management Area (Northeast Region). The recommended measures 
intended to reduce risk of mortality and serious injury to right whales 
incidentally entangled in buoy lines in those fisheries by at least 60 
percent, which was the best estimate at the time of the minimum amount 
of risk necessary to get annual severe entanglement rates below PBR 
based on observed entanglement incidents. NMFS published a Final 
Environmental Impact Statement (FEIS) on July 2, 2021 (86 FR 35288), 
with a 30-day comment period. The Record of Decision was signed on 
August 30, 2021, and the final rule was published on September 17, 2021 
(86 FR 51970). The new rule was estimated to meet the minimum 60-
percent reduction in risk recommended by the Team in 2019. Greater 
detail on right whale population estimates, the stock's decline, 
changes in distribution and reproductive rates, and entanglement-
related mortalities and serious injuries documented in recent years can 
be found in Chapters 2 and 4 of the FEIS (NMFS 2021b) and the preamble 
to the 2021 final rule (86 FR 51970).

Justification for Emergency Action

    New population information published since the 2019 Team meeting 
and recent 2021 final rule suggest that a greater amount of risk 
reduction is needed to reduce mortality and serious injury of right 
whales in U.S. commercial fisheries below PBR, as required by the MMPA. 
NMFS presented the new minimum risk reduction needed to the team in a 
webinar on November 2, 2021, estimating an increase from the minimum of 
60-percent risk reduction estimated in Phase 1 based on observed 
incidents, to at least a 90-percent total risk reduction based on 
estimated mortality. Phase 1 is intended to achieve an estimated 60-
percent reduction in entanglement risk from Northeast lobster and Jonah 
crab trap pot fisheries, which make up approximately 93 percent of 
fixed gear buoy lines in the right whale range within U.S. waters. A 
rulemaking process for Phase 2 modifications to the Plan began on 
August 11, 2021, with a Notice of Intent to prepare an Environmental 
Impact Statement that aims to further reduce risk in all fisheries 
covered under the plan coastwide. However, a single mortality or 
serious injury of a North Atlantic right whale in a U.S. fishery would 
exceed PBR. Therefore, observations in 2021 and new information 
submitted to NMFS merit emergency measures in an area of anticipated 
acute risk of entanglement

[[Page 11592]]

to the population while long-term measures are being developed.
    One measure included in the 2021 final rule (86 FR 51970, September 
17, 2021) has left a critical gap in protection where right whale 
distribution information identifies a high risk of overlap between 
right whales and buoy lines. Right whale monthly distribution data 
identifies risk in unrestricted waters encapsulated on three sides by 
the expanded Massachusetts Restricted Area (MRA) during the month of 
April. The 2021 expansion of the geographic extent of the MRA to 
include Massachusetts State waters north to the New Hampshire border 
(MRA Expansion, Figure 1) mirrors the Massachusetts 2021 modification 
of the State water closure (322 CMR 12.04(2)). With the implementation 
of the MRA Expansion, approximately 200 square miles (518 square 
kilometers) of Federal waters remain open to trap/pot fishing between 
State and Federal closures creating a wedge where 2021 data indicate 
that trap/pot gear is concentrated during the closure period (MRA 
Wedge, Figure 2). During aerial surveys in April 2021, the Center for 
Coastal Studies (CCS) observed right whales within this wedge alongside 
the presence of aggregated fishing gear (Figure 2). The gear in this 
area is thought to be a mix of actively fished gear and staged gear 
that is placed in preparation for Federal waters within the MRA to open 
in May. In addition, during April, fishermen anticipating the May 1 
opening of Federal waters of the MRA may start bringing gear offshore 
to prepare to move into the MRA. This, in addition to the gear from 
fishermen already actively fishing outside of the buoy line closure 
area, increases gear density in the area. Finally, weak insertion 
requirements that reduce risk of serious entanglements included in the 
2021 final rule will not yet be required in Federal waters until May 1, 
2022. Given the dense concentration of high-strength vertical lines in 
an area with persistent right whale presence, this wedge area presents 
an imminent entanglement threat.
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Emergency Measures

    This emergency rule implements a fishery closure in the waters 
nearly circumscribed by Federal and State waters of the MRA, where the 
use of persistent trap/pot buoy lines is prohibited in April 2022 
(Figure 2). This closure period is only a portion of the existing MRA 
closure season as implemented in the 2021 final rule (86 FR 51970, 
September 17, 2021), which is closed as of February 1 and continues 
through April 30 in Federal waters, and in Massachusetts State waters 
February 1 through May 15 with an option to open earlier or close 
later, depending on right whale occurrence under State regulations (322 
CMR 12.04(2)). Risk reduction and change in right whale co-occurrence 
were calculated for this emergency measure using the same version of 
the Decision Support Tool (V 3.1.0) that was used in the 2021 FEIS 
(NMFS 2021b). The area restricted by this emergency rule includes 
approximately 200 square miles (518 square kilometers and represents 
about 2.2 percent of the pre-final rule risk of Northeast lobster and 
Jonah crab trap/pot fisheries. Closure of this area to buoy lines in 
April would result in 2- to 2.2-percent risk reduction, and 1.3- to 
1.5-percent reduction in co-occurrence with right whales, depending on 
whether gear is relocated or removed, respectively. When combined with 
the 2021 final rule (86 FR 51970, September 17, 2021), this one-month 
closure adds at least an additional 1.6-percent risk reduction due to 
the interactive effects of an added closure during April with other 
measures that weaken, reduce, or relocate buoy lines. Though this 
additional reduction seems small, it offers measurable reduction in a 
relatively small area for a very short time period.
    The Decision Support Tool used to estimate risk reduction of these

[[Page 11595]]

measures relies on whale distribution data through 2018 and line 
estimates from recent years before the new seasonal restricted area was 
implemented. These data likely underestimate the risk reduction given 
2020 and 2021 observations of right whale distribution and the 2021 
restrictions may have pushed more gear into this area. Furthermore, the 
right whale habitat density model produced by Duke University and used 
within the Decision Support Tool estimates that approximately 4.6 
whales are likely to be present in this locality during the month of 
April, but observation data collected during April 2021 suggest that in 
2022 there may be more right whales in the area than the model predicts 
(Figure 2). Given the empirical evidence collected in 2021, it is 
likely that the risk reduction estimated in this small area may have 
even greater value to the right whale population than the percent 
reduction suggests, particularly in years when right whale aggregations 
are high.
    The economic impact of an April fishery closure to lobster and 
Jonah crab trap/pot buoy lines is estimated to be small relative to the 
total value of the fishery. It is estimated to impact approximately 37 
vessels and represents a landing value of approximately $2,210 per 
vessel for a total cost of $82,869. This estimate is a worse-case 
scenario that assumes the gear is removed rather than relocated 
elsewhere. The number of vessels impacted was calculated from the 
average number of vessels fishing within the MRA Wedge during April 
from 2015 to 2019 according to Vessel Trip Report (VTR) data, and was 
adjusted based on the average percentage of Lobster Management Area 1 
lobster-only vessels required to provide VTR data in Massachusetts, 
which is 42 percent. Landing values were similarly averaged for April 
using landing pounds from VTR data and April lobster prices in 
Massachusetts from dealer reports.

Classification

    The NMFS Assistant Administrator has determined that this emergency 
rule is consistent with the Plan, with the emergency rulemaking 
authority under section 118(g) of the Marine Mammal Protection Act 
(MMPA), and with other applicable laws. Further evaluation of this 
authority and environmental impacts can be found at https://www.fisheries.noaa.gov/alwtrp. This emergency rule has been determined 
to be not significant for the purposes of Executive Order 12866.
    This emergency final rule is exempt from the procedures of the 
Regulatory Flexibility Act because the rule will not include prior 
notice or an opportunity for public comment.
    This emergency final rule contains no information collection 
requirements under the Paperwork Reduction Act of 1995.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries finds prior notice and public comment is not required because 
it would be impracticable and contrary to the public interest. Right 
whale monthly distribution data identifies risk in unrestricted waters 
encapsulated on three sides by the expanded Massachusetts Restricted 
Area (MRA) during the month of April. The 2021 expansion of the 
geographic extent of the MRA to include Massachusetts State waters 
north to the New Hampshire border (MRA Expansion, Figure 1) mirrors the 
Massachusetts 2021 modification of the State water closure (322 CMR 
12.04(2)). With the implementation of the MRA Expansion, approximately 
200 square miles (518 square km) of Federal waters remain open to trap/
pot fishing between State and Federal closures creating a wedge where 
2021 data indicates that trap/pot gear is concentrated during the 
closure period (MRA Wedge, Figure 2). During aerial surveys in April 
2021, the Center for Coastal Studies (CCS) observed right whales within 
this wedge alongside the presence of aggregated fishing gear (Figure 
2). The gear in this area is thought to be a mix of actively fished 
gear and staged gear that is placed in preparation for Federal waters 
within the MRA to open in May. In addition, during April fishermen 
anticipating the May 1 opening of Federal waters of the MRA may start 
bringing gear offshore to prepare to move into the MRA. This, in 
addition to the gear from fishermen already actively fishing outside of 
the buoy line closure area, could increase gear density in the area. 
Finally, weak insertion requirements that reduce risk of serious 
entanglements, included in the 2021 final rule, will not yet be 
required in Federal waters until May 1, 2022. Given the dense 
concentration of high-strength vertical lines in an area with 
persistent right whale presence, this wedge area presents an imminent 
entanglement threat.
    In summary, this emergency action is necessary to prevent risk to 
right whales in an area of elevated risk in Massachusetts Bay in April 
2022. Providing prior notice through proposed rulemaking and public 
comment period in the normal rulemaking process would be counter to 
public interest by delaying implementation of emergency measures 
intended to provide relief for this time sensitive management problem. 
For the reasons outlined above, NMFS finds it impracticable and 
contrary to the public interest to provide prior notice and public 
comment on these emergency measures.

References

NMFS. 2019. Guidance on the Application of NEPA for Emergency 
Response Actions. Memo to National Environmental Policy Act (NEPA) 
Practitioners. September 23, 2019.
NMFS. 2021a. Draft U.S. Atlantic and Gulf of Mexico Marine Mammal 
Stock Assessments 2021 https://media.fisheries.noaa.gov/2021-10/Draft%202021%20NE%26SE%20SARs.pdf.
NMFS. 2021b. Final Environmental Impact Statement, Regulatory Impact 
Review, and Initial Regulatory Flexibility Analysis for Amending the 
Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule. NOAA, 
National Marine Fisheries Service, Greater Atlantic Regional 
Fisheries Office.
Pace, R.M., P.J. Corkeron, and S.D. Kraus. 2017. State-space mark-
recapture estimates reveal a recent decline in abundance of North 
Atlantic right whales. Ecology and Evolution 7:8730-8741.
Pace, R.M. 2021. Revisions and Further Evaluations of the Right 
Whale Abundance Model: Improvements for Hypothesis Testing. NOAA 
Technical Memorandum NMFS-NE-269. Northeast Fisheries Science 
Center, Woods Hole, MA.
Pace, R.M., R. Williams, S.D. Kraus, A.R. Knowlton, and H.M. Pettis. 
2021. Cryptic mortality of North Atlantic right whales. Conservation 
Science and Practice 2021:e346.
Pettis, H.M., R.M. Pace, and P.K. Hamilton. 2022. North Atlantic 
Right Whale Consortium 2021 Annual Report Card. Report to the North 
Atlantic Right Whale Consortium.

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 23, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

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

0
1. The authority citation for 50 CFR part 229 continues to read as 
follows:


[[Page 11596]]


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


0
2. In Sec.  229.32, add paragraph (c)(3)(iv) to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (c) * * *
    (3) * * *
    (iv) Massachusetts Restricted Area emergency extension. During the 
period April 1-30, 2022, the Massachusetts Restricted Area defined in 
paragraph (c)(3)(i) of this section is extended from the Massachusetts 
State waters boundary at MRAW1 to MRAW2 (also MRA3 in Table 11 to 
paragraph (c)(3)(i)), then it is bounded by a rhumb line connecting 
points MRAW2 to MRAW3 (MRA4), and then bounded by a rhumb line 
connecting points MRAW3 through MRAW4 (MRA5) back to MRAW1, in the 
order detailed in Table 11a to this paragraph (c)(3)(iv). From April 1, 
2022, through April 30, 2022, it is prohibited to fish with, set, or 
possess trap/pot gear in the area in this paragraph (c)(3)(iv) unless 
it is fished without buoy lines or with buoy lines that are stored on 
the bottom until remotely released for hauling, or buoy lines that are 
stowed in accordance with Sec.  229.2. Authorizations for fishing 
without buoy lines must be obtained if such fishing would not be in 
accordance with surface marking requirements of Sec. Sec.  697.21 and 
648.84 of this title or other applicable fishery management regulations 
in this title. The minimum number of trap/trawl gear configuration 
requirements specified in paragraph (c)(2)(iv) of this section remain 
in effect unless an exemption to those requirements is authorized.

                    Table 11a to Paragraph (c)(3)(iv)
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               Point                       Lat                Long
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MRAW1.............................  42[deg]39.77'....  70[deg]30'
MRAW2 (MRA3)......................  42[deg]12'.......  70[deg]38.69'
MRAW3 (MRA4)......................  42[deg]12'.......  70[deg]30'
MRAW4 (MRA5)......................  42[deg]30'.......  70[deg]30'
MRAW1.............................  42[deg]39.77'....  70[deg]30'
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[FR Doc. 2022-04291 Filed 3-1-22; 8:45 am]
BILLING CODE 3510-22-P


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