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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 229</CFR> <DEPDOC>[Docket No. 240201-0032]</DEPDOC> <RIN>RIN 0648-BM31</RIN> <SUBJECT>Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 ( <E T="03">Eubalaena glacialis,</E> 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 <E T="03">(Balaenoptera physalus),</E> and humpback whales <E T="03">(Megaptera novaeangliae)</E> in commercial trap/pot fisheries. There is a specific carve out for this rule in the Consolidated Appropriations Act, 2023 (CAA). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective March 8, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov/</E> or by contacting Jennifer Goebel (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> below). Several of the background documents for the Plan and the take reduction planning process can also be downloaded from the Plan website ( <E T="03">https://www.fisheries.noaa.gov/ALWTRP</E> ). 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. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jennifer Goebel, 978-281-9175, <E T="03">jennifer.goebel@noaa.gov,</E> Colleen Coogan, 978-281-9181, <E T="03">colleen.coogan@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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 <E T="03">et al.</E> 2023, Pace <E T="03">et al.</E> 2017, Pace 2021). The steep population decline is a result of high levels of human-caused mortality from entanglement in fishing gear and vessel strikes in both the United States and Canada. An Unusual Mortality Event (UME) was declared for the population in 2017, due to high rates of documented vessel strikes and entanglement in fishing gear. As of January 18, 2024, the UME includes 36 detected mortalities (17 in 2017, 3 in 2018, 10 in 2019, 2 in 2020, 2 in 2021, 0 in 2022, and 2 in 2023). In addition, 35 serious injuries were documented (6 in 2017, 6 in 2018, 3 in 2019, 6 in 2020, 5 in 2021, 4 in 2022, 4 in 2023, and 1 in 2024). Lastly, 51 morbidity (or sublethal injury or illness) cases were documented (13 in 2017, 12 in 2018, 6 in 2019, 6 in 2020, 2 in 2021, 6 in 2022, and 6 in 2023). <E T="03">See https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.</E> 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 <E T="03">et al.</E> 2021, Pace <E T="03">et al.</E> 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 <E T="03">et al.</E> 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 <E T="03">et al.</E> 2023, Linden 2023, Pace <E T="03">et al.</E> 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. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  There are no Alaska Native or Indian tribal organizations on the Atlantic Large Whale Take Reduction Team. </FTNT> 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 <E T="03">et al.</E> 2021, Pace <E T="03">et al.</E> 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. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 92k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━