Magnuson-Stevens Act Provisions; Prohibition of Commercial Fishing in the Northeast Canyons and Seamounts Marine National Monument

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 600</CFR> <DEPDOC>[Docket No. 240212-0045]</DEPDOC> <RIN>RIN 0648-BL70</RIN> <SUBJECT>Magnuson-Stevens Act Provisions; Prohibition of Commercial Fishing in the Northeast Canyons and Seamounts Marine National Monument</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> This action implements regulations for the Northeast Canyons and Seamounts Marine National Monument. This action is necessary to conform U.S. fishing regulations to be consistent with Presidential Proclamations 9496 and 10287, which prohibited commercial fishing in the Northeast Canyons and Seamounts Marine National Monument and directed the Secretaries of Commerce and Interior to promulgate regulations necessary for the proper care and management of the Monument. The measures herein are intended to define the boundary coordinates of the Monument area and clarify the prohibition on commercial fishing in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective March 18, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Laura Deighan, Fishery Management Specialist, 978-281-9184. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> On September 15, 2016, the Northeast Canyons and Seamounts Marine Monument was designated in the waters of the North Atlantic (Presidential Proclamation 9496; 81 FR 65161, September 21, 2016), to include both a Canyons Unit and a Seamounts Unit. This Proclamation prohibited commercial fishing within the Monument, with a 7-year exemption for the American lobster and Atlantic deep-sea red crab fisheries. In June 2020, Monument prohibitions were revised via Proclamation 10049 (85 FR 35793, June 11, 2020) removing commercial fishing from the list of prohibited activities set forth in the 2016 Proclamation. Most recently, in October 2021, Proclamation 10287 (86 FR 57349, October 15, 2021) restored commercial fishing to the list of prohibited activities, providing “for the prohibition of all commercial fishing in the Monument, except for red crab and American lobster commercial fishing, which may be permitted until September 15, 2023.” <HD SOURCE="HD1">Approved Measures</HD> Consistent with Proclamation 10287 (68 FR 57349, October 15, 2021) and the requirements of the Magnuson-Stevens Act, this action defines the boundary coordinates of the Monument area in the Magnuson-Stevens Act regulations at 50 CFR 600.10. Tables 1 and 2 below include coordinates for the Canyons and Seamounts Units. <GPOTABLE COLS="3" OPTS="L2,i1" CDEF="s25,xls50,xls50"> <TTITLE>Table 1—Canyons Unit Coordinates</TTITLE> <CHED H="1">Point</CHED> <CHED H="1">N Latitude</CHED> <CHED H="1">W Longitude</CHED> <ROW> <ENT I="01">1</ENT> <ENT>40°31.62′</ENT> <ENT>68°16.08′</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>40°36.00′</ENT> <ENT>67°37.68′</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>40°12.42′</ENT> <ENT>67°34.68′</ENT> </ROW> <ROW> <ENT I="01">4</ENT> <ENT>40°7.32′</ENT> <ENT>68°12.72′</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>40°31.62′</ENT> <ENT>68°16.08′</ENT> </ROW> </GPOTABLE> <GPOTABLE COLS="3" OPTS="L2,i1" CDEF="s25,xls50,xls50"> <TTITLE>Table 2—Seamounts Unit Coordinates</TTITLE> <CHED H="1">Point</CHED> <CHED H="1">N Latitude</CHED> <CHED H="1">W Longitude</CHED> <ROW> <ENT I="01">1</ENT> <ENT>40°2.64′</ENT> <ENT>67°43.32′</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>39°56.34′</ENT> <ENT>38°51.90′</ENT> <ENT>40°2.64′</ENT> <ENT>67°43.32′</ENT> </ROW> <TNOTE> <SU>a</SU>  U.S. exclusive economic zone (EEZ) longitude, approximately 65°56.58′. </TNOTE> <TNOTE> <SU>b</SU>  U.S. EEZ longitude, approximately 66°55.86′. </TNOTE> </GPOTABLE> This rule also reflects Proclamation 10287's prohibition on commercial fishing within the boundaries of the Monument in the Magnuson-Stevens Act prohibitions at § 600.725 and clarifies that commercial fishermen may transit through the Monument if fishing gear is stowed and not available for immediate use during passage through the Monument. <HD SOURCE="HD1">Comments and Responses</HD> We published a proposed rule in the <E T="04">Federal Register</E> on October 19, 2023 (88 FR 72038), soliciting public comment. The comment period ended on November 20, 2023. We received a total of 11,640 comments submitted by 6 individual commercial and recreational fishermen; 2 academics and researchers; 11,589 members of the public; and 40 environmental, 2 commercial fishing, and 1 legal organization. One comment related to wind development, which is not the subject of this action, and is not discussed further. A more detailed summary of the relevant comments and our responses is provided below. <HD SOURCE="HD1">Establishment of the Monument and Its Commercial Fishing Prohibition</HD> <E T="03">Comment 1:</E> A total of seven commenters—four individual fishermen, two members of the public, and one commercial fishing organization—expressed general opposition to the action because (1) the commercial fishing prohibition results in the loss of an important fishing ground; (2) the commercial fishing prohibition will have a negative impact on fisheries in general or on pelagic longline and highly migratory species fisheries specifically; (3) the loss of fishing opportunity for species managed multilaterally by the International Commission for the Conservation of Atlantic Tunas may result in reductions of U.S. quota, reallocated to countries with less sustainable management; (4) the commercial fishing prohibition gives exclusive access to recreational fisheries, and the area should either be closed or open to all fisheries without any exceptions; (5) recreational fisheries do not have the same level of monitoring as commercial fisheries; (6) marine protected areas are the least effective fisheries management tool and fail to recognize biology and ecology, are not adaptive, and force vessels to fish in less desirable areas; (7) fisheries that do not interact with benthic habitat and/or that have sufficient monitoring in place should be allowed to fish in the Monument; (8) “objects of historic or scientific interest,” which the Antiquities Act of 1906 (54 U.S.C. 320301-320303) was established to protect, does not include living marine resources; (9) the Monument does not represent the “smallest area compatible” with the proper care and management of the objects the Monument was established to protect, as required under the Antiquities Act; (10) the Monument does not provide proper care and management of highly migratory species, which have a much larger range than the Monument; (11) the establishment of the Monument was not based on the best scientific information available; and (12) the commercial fishing prohibition poses prosecution risk to members of industry if gear drifts, and vessels will not be able to set gear near the Monument because of this risk. A total of 11,627 commenters—11,584 members of the public, 2 individual fishermen, 1 individual researcher, and 40 environmental organizations—expressed general support for the Monument for reasons including the Monument is a relatively small area, it is a unique area, it is in need of protection, it supports sustainable fisheries, and it balances conservation and economics. One comment further stated that the Monument should be fully protected and all fishing activity should be prohibited within its boundaries. <E T="03">Response:</E> These comments address the establishment of the Monument and its associated commercial fishing prohibition, which were implemented through Presidential Proclamations 10287 and 9496. NMFS does not establish, initiate, or control the marine monument process. Under the Antiquities Act, the President establishes marine monuments and makes the final decision on what is protected and what uses will be restricted upon establishment. <HD SOURCE="HD1">Monument Management Plan</HD> <E T="03">Comment 2:</E> Two comments submitted by commercial fishing organizations criticize the development of the draft Management Plan, the lack of public involvement in its development, and the likelihood of its development having a substantial cost and little benefit. <E T="03">Response:</E> This rulemaking is separate and distinct from the development of the draft Management Plan. Further, NMFS is not primarily responsible for the Management Plan's development. The U.S. Fish and Wildlife Service is the lead agency responsible for the draft Management Plan. <HD SOURCE="HD1">Legal Basis and Procedures</HD> <E T="03">Comment 3:</E> One comment submitted by an organization asserts that NMFS' prohibition on commercial fishing in an area of the Atlantic Ocean is based on an “illegal” Presidential Proclamation issued under the Antiquities Act. The comment states that the Proclamation exceeds the President's authority under the Antiquities Act and violates the U.S. Constitution's separation of powers. Thus, it argues that any agency action, including this action seeking to include the Monument and the commercial fishing prohibition in the Magnuson-Stevens Act regulations, is, among other legal flaws, arbitrary, capricious, and not in accordance with law. Further, it asserts that the Monument's prohibition on commercial fishing is outside the President's authority under the Antiquities Act and that any agency action, including this rulemaking, taken in furtherance of the Monument designation would violate the Administrative Procedure Act (APA). <E T="03">Response:</E> The Mo ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 32k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━