Notice of Intent To Prepare an Environmental Impact Statement on Modifications to the Atlantic Large Whale Take Reduction Plan To Reduce Mortality and Serious Injury of Large Whales in Commercial Trap/Pot and Gillnet Fisheries Along the U.S. East Coast

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of Intent to prepare an Environmental Impact Statement, request for comments.

SUMMARY:

This notice announces an Environmental Impact Statement (EIS) will be prepared in accordance with the National Environmental Policy Act (NEPA) to analyze the impacts to the environment of alternatives to amend the Atlantic Large Whale Take Reduction Plan (Plan). The National Marine Fisheries Service (NMFS) intends to begin a rulemaking process to amend the Plan to further reduce the risk of mortalities and serious injuries of North Atlantic right whales ( Eubalaena glacialis) and other large whales caused by incidental entanglement in commercial trap/pot and gillnet fisheries along the U.S. East Coast. This notice is necessary to inform the public of NMFS's intent to prepare this EIS and to provide the public with an opportunity to provide input for NMFS's consideration.

DATES:

Comments must be received by October 11, 2022.

Public Hearing: In addition to presentations at New England and Mid Atlantic Fishery Management Council Meetings in September and October 2022, a virtual public scoping meeting will be held during the public comment period. See ADDRESSES to obtain public meeting details.

ADDRESSES:

You many submit comments on this Notice of Intent, identified by NOAA-NMFS-2022-0091, by either of the following methods:

Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0091 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

Instructions: All comments received that are timely and properly submitted are a part of the public record and may be posted for public viewing on www.regulations.gov without change. All personal identifying information ( e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by us.

Oral Comments: One remote public scoping meeting will be held during the comment period. More information, including the date of the public scoping meeting and remote access information, will be posted on the Plan website, https://www.fisheries.noaa.gov/ALWTRP, or you may contact Marisa Trego. (see FOR FURTHER INFORMATION CONTACT ).

FOR FURTHER INFORMATION CONTACT:

Marisa Trego, Atlantic Large Whale Take Reduction Team Coordinator, Greater Atlantic Region. Telephone: 978-282-8484. Address: 55 Great Republic Drive, Gloucester, MA 01930. Email: marisa.trego@noaa.gov.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Proposed Action

NMFS has determined that additional risk reduction is needed in all East Coast gillnet and trap/pot fisheries regulated under the Plan to meet the requirements of the Marine Mammal Protection Act (MMPA). This notice informs the public of an opportunity to provide public input on the next Plan modifications to reduce the risk of entanglement to right, humpback, and fin whales from all U.S. East Coast commercial trap/pot and gillnet fisheries.

A final rule implementing new modifications to reduce mortalities and serious injuries caused by incidental entanglement in the Northeast American lobster and Jonah crab trap/pot fishery was published on September 17, 2021 (86 FR 51970) and analyzed in a Final Environmental Impact Statement (FEIS) released on July 2, 2021 (86 FR 35288). These Phase 1 Plan modifications were intended to achieve the minimum 60 percent target reduction in risk within the Northeast American lobster and Jonah crab trap/pot fisheries at the time. Given new information since the 2021 modifications were initiated, the risk reduction estimated to be necessary to reduce mortality and serious injuries of right whales in U.S. commercial fisheries to below the Population Biological Removal level (PBR), as required by the MMPA, has increased from 60 to 80 percent in 2019 to at least a 90 percent risk reduction target. NMFS has been working with the Atlantic Large Whale Take Reduction Team (Team) to develop recommendations addressing risk from the U.S. East Coast gillnet, Atlantic mixed species trap/pot, and Mid-Atlantic lobster and Jonah crab trap/pot fisheries, including some that apply to Northeast lobster and Jonah crab trap/pot fishery. In a recent summary judgment in the Center for Biological Diversity, et al., v. Raimondo, et al., (Civ. No. 18-112 (D.D.C.)), the presiding judge ruled that the 2021 Final Rule failed to satisfy the requirements of the MMPA. Given that ruling and the updated 90 percent risk reduction target, additional risk reduction will be necessary from all fixed gear fisheries coastwide that are regulated under the Plan, as described below.

NMFS plans to analyze alternatives through the development of a Draft Environmental Impact Statement (DEIS) alongside a rulemaking to modify the Plan to reduce mortalities and serious injuries from incidental commercial fishing gear entanglements in all U.S. East Coast commercial gillnet and trap/pot fisheries. NMFS' purpose for the proposed action is to fulfill the mandates of the MMPA to reduce incidental mortalities and serious injuries of large whales to below each stock's PBR. This action is needed because the right whale population is in steep decline, incidental entanglement in U.S. commercial fisheries is one of the causes of serious injuries and mortalities to right whales, and the estimated level of serious injuries and mortalities in U.S. fisheries exceeds the level allowed under the MMPA.

North Atlantic right whales are listed as endangered under the Endangered Species Act (ESA) and considered depleted under the MMPA. After more than two decades of an increasing trend, the population has been declining since 2010 (Pace et al., 2017). The most recent population estimate is fewer than 350 animals, which is well below the optimum sustainable population (Pettis et al., 2022). The decline has been exacerbated by an Unusual Mortality Event (UME) that began in 2017, when a total of 17 confirmed dead right whales were documented. It is important to note that scientists estimate only about one-third of mortalities are observed (Pace et al., 2021). As of August 2022, the UME includes 53 documented individuals, comprising 34 right whale mortalities and an additional 19 seriously injured right whales rangewide (in Canadian and U.S. waters). Of these 53 incidents, nearly half (26) involved entanglement, 13 were due to vessel strikes, 13 were either too decomposed or were not able to be examined to determine a cause of death, and one was a perinatal mortality. During this period (2017-2022), only 55 calves contributed to population growth. Two additional calves were observed but are not included in this count: one was sighted without a mother in the Canary Islands, and another calf likely died before birth ( i.e., did not take a breath after parturition).

One of the primary causes of mortality and serious injury of North Atlantic right whales is entanglement in fishing gear. Climate change and associated alterations in prey abundance and distribution are exacerbating the population decline by shifting the overlap between right whales and fisheries and by reducing the population's resilience to other stressors. With mortalities and serious injuries continuing to outpace births, the population decline continues and further mitigation of entanglements that cause mortality or serious injury is necessary for population recovery.

The MMPA mandates that NMFS develop and implement Take Reduction Plans for preventing the depletion and assisting in the recovery of certain marine mammal stocks that are killed or seriously injured incidental to commercial fisheries. Pursuant to the MMPA, NMFS convenes Take Reduction Teams composed of stakeholders to develop recommendations that achieve a short-term goal of reducing mortalities and serious injuries of marine mammals covered by the Plan to a rate below each stock's PBR. NMFS considers those recommendations when implementing Take Reduction Plans through the rulemaking process. The Atlantic Large Whale Take Reduction Team (Team) was first convened in 1996 to recommend measures to reduce mortalities and serious injuries of right, humpback, and fin whales incidental to certain commercial fisheries. Since 1997, the Plan has been amended several times to reduce the impacts of fishing gear on large whales in U.S. waters through measures that include area closures, gear configuration requirements, and gear marking. The most recent final rule, published on September 17, 2021 (86 FR 51970), implemented modifications intended to reduce mortalities and serious injuries caused by entanglement in the Northeast American lobster and Jonah crab trap/pot fishery by up to 60 percent. The alternatives considered were analyzed in a FEIS released on July 2, 2021 (86 FR 35288). The rulemaking effort is sometimes referred to as the “Phase 1” risk reduction modifications.

In 2021, the Team convened to address large whale mortalities and serious injuries caused by entanglements in the U.S. East Coast gillnet, Atlantic mixed species trap/pot, and mid-Atlantic lobster and Jonah crab trap/pot fisheries (“Phase 2” fisheries). Scoping on measures to reduce the impacts of these fisheries was conducted from August 10, 2021 through October 21, 2021. Written and verbal comments were collected during seven virtual scoping meetings, presentations to the fishery Councils and Commission, three call-in days, and via email.

After attending information webinars in November 2021 and January, February, March, and April 2022, the Team reconvened in May 2022 to begin development of recommendations for modifications to the Plan regulations related to these Phase 2 fisheries. The Team reviewed new population information showing that the population decline is continuing at a high rate, confirming that most right whale mortalities are unseen, and compelling greater risk reduction than previously anticipated. The most recent North Atlantic Right Whale Stock Assessment Report reduced PBR to 0.7 (NMFS, 2021). In October 2021, the Atlantic Scientific Review Group (ASRG), recommended that NMFS calculate the risk reduction target with the total mortality estimates derived from the population estimate outputs suggesting that many more mortalities occur unobserved than can be accounted for by relying on observed mortality (Pace et al., 2021). The ASRG recommended that NMFS assume those estimated but unseen mortalities be attributed to vessel strike or entanglements as those are the cause of nearly all observed mortalities. Finally the ASRG recommended that NMFS apply the most recent ratio of observed vessel strike to entanglement serious injuries and mortalities to the unseen mortalities to estimate how many were caused by entanglements each year. The ASRG did not make a recommendation about what portion of those mortalities occurred in U.S. or Canadian waters. For the 2021 rule and FEIS, we assumed half of all incidents occurred in each country but also provided additional estimates based on country apportionments with as many as 70 percent of incidents occurring in Canada to show how robust the estimated risk reduction needed to achieve PBR are to this assumption. Given how high total mortality is relative to PBR and a few years with higher confirmed Canadian incidents, we recalculated risk reduction according to the same range of country apportionments (50:50, 60:40, and 70:30) and found a change in 20 percent of the country apportionment resulted in only a 5-percent difference in risk reduction (89 to 94 percent). Applying these assumptions, NMFS estimates that to reduce right whale mortality and serious injury caused by incidental entanglement in U.S. commercial fisheries to below PBR, a greater level of risk reduction than originally anticipated across all regulated fisheries is necessary.

NMFS presented the new risk reduction target to the team in a webinar on November 2, 2021. The risk reduction estimated to be necessary to reduce mortality and serious injuries of right whales in U.S. commercial fisheries to below the PBR, as required by the MMPA, has increased from a minimum of 60 percent to at least a 90 percent risk reduction from the baseline year of 2017. It is likely that additional modifications to all of the fixed gear trap/pot and gillnet fisheries regulated under the Plan will be necessary to meet the goals of the MMPA.

NMFS will open a scoping period to gather additional public input on further modifications to the Plan including: (1) Northeast lobster and Jonah crab trap/pot fishery; (2) Mid-Atlantic gillnet fisheries for monkfish, spiny dogfish, smooth dogfish, bluefish, weakfish, menhaden, spot, croaker, striped bass, large and small coastal sharks, Spanish mackerel, king mackerel, American shad, black drum, skate species, yellow perch, white perch, herring, scup, kingfish, spotted seatrout, and butterfish; (3) Northeast sink gillnet fisheries for Atlantic cod, haddock, pollock, yellowtail flounder, winter flounder, witch flounder, American plaice, windowpane flounder, spiny dogfish, monkfish, silver hake, red hake, white hake, ocean pout, skate spp., mackerel, redfish, and shad; (4) Northeast drift gillnet fisheries for shad, herring, mackerel, and menhaden and any residual large pelagic driftnet effort in New England; (5) Southeast Atlantic gillnet fisheries for finfish, including, but not limited to: king mackerel, Spanish mackerel, whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, cobia, and striped mullet; (6) Southeast Atlantic shark gillnet fisheries for large and small coastal sharks, including but not limited to blacktip, blacknose, finetooth, bonnethead, and sharpnose sharks; (7) Northeast anchored float gillnet fishery for mackerel, herring (particularly for bait), shad, and menhaden; (8) Atlantic mixed species trap/pot fisheries for hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, Pollock, redfish (ocean perch), white hake, spot, skate, catfish, stone crab, and cunner; (9) mid-Atlantic trap/pot fisheries for lobster and Jonah crab, and (10) Atlantic trap/pot fishery for Atlantic blue crab.

Further information about the Plan and the 2021-2022 Team meetings where potential management measures were discussed, including recordings of all the informational webinars, can be found on the Plan's web page: https://www.fisheries.noaa.gov/alwtrp.

Preliminary Description of Proposed Action and Alternatives

NMFS will develop and analyze suites of regulatory measures that would modify existing Plan requirements to reduce the risk of mortalities and serious injuries of large whales in U.S. fisheries caused by ongoing large whale incidental entanglements. Plan modifications are necessary to reduce the mortality and serious injury of right whales in U.S. East Coast gillnet and trap/pot fisheries. In addition to the status quo or no action alternative, potential alternatives that the draft EIS may analyze include measures that would:

• Weaken ropes such as buoy lines in these fisheries
• Reduce co-occurrence of this gear and right whales by reducing the amount of fishing gear in the water column where right whales occur (closures to buoy lines, reduction in the number of buoy lines through trap or panel limits, requiring fishing trawls or sets with only one endline)

• Improve identification of the source of entangling gear through increased gear marking such as applying larger or more colored marks on buoy lines, and/or inserting a ribbon with details about the source fishery

• Restrain increased effort by controlling latent effort, and
• Establish or modify seasonal hot-spot management areas in which more strict measures would be implemented.

Ideas discussed by the Team for gillnet fisheries include changing configurations such as increasing the minimum number of net panels per set to reduce endline numbers, reducing the number of buoy lines on a set of gillnet, gear tending or daytime-only sets for gillnets, installation of weak links at panels and weak rope that breaks at forces of less than 1,700 lb (771 kg), establishing seasonal restricted areas, dynamic management for some gillnet fisheries, and expanding gear marking requirements. Ideas discussed for trap/pot fisheries include changing configurations such as traps per trawl to reduce buoy line numbers, requiring only one endline in certain offshore areas where weak rope is not feasible, installation of weak inserts or ropes in buoy lines to break at forces of less than 1,700 lb (771 kg), establishment or modification of seasonal restricted areas, and expansion of gear marking requirements. NMFS requests input on allowing specific groups, such as Northeast Multispecies Sectors or state fishery managers the latitude to develop their own measures to meet conservation targets.

NMFS is looking for information specific to additional risk reduction in all U.S. East Coast commercial gillnet and trap/pot fisheries, including, but not limited to, ways to reduce buoy lines through line caps, trawling up, trawls and sets limited to one buoy line, net and trap reductions, or other methods of achieving line reduction, modifications to existing restricted areas, new or expanded areas or seasons to consider restricting fishing with persistent buoy lines, opportunities for dynamic management, and any modifications to the weak line requirements published on September 17, 2021 (86 FR 51970). Additional feedback on ideas that were discussed in previous scoping and comments on earlier modifications is also invited. Examples include, but are not limited to, increasing the number of weak inserts required to increase the chance large whales will interact with a weak section of rope and can break free without injury, modifying start or end dates of seasonal restricted areas, new or expanded seasonal restricted areas, restricting fishing rope diameter to no greater than 0.5 inch (1.27 cm) to distinguish it from offshore Canadian gear, submission of information on latent effort, and the use of gear identification tape.

We are also seeking feedback on the inclusion of some measures that might modify the regulations implemented under the September 2021 Final Rule apply to Northeast lobster and Jonah crab in the Phase 2 rulemaking, such as conservation equivalencies for weak rope in the offshore Lobster Management Area 3 fleet. As of July 2022, no operationally feasible large diameter weak rope has been identified. Input on an extension of the Massachusetts Seasonal Restricted Area into Federal waters (which was implemented through an Emergency Rule in 2022 (87 FR 11590, March 2, 2022) is also specifically requested.

Input is also welcome on information about operational challenges, time, and costs regarding restricted areas, gear marking requirements, installation of weak inserts or rope that breaks at forces of less than 1,700 lb (771 kg), and the use of one endline in offshore areas, the use of grappling, acoustic releases of buoys, timed release of buoys is also requested. Given U.S. rulemaking requirements, even dynamic management procedures are likely to take weeks to implement, however information on whether dynamic management should be considered is also requested. Dynamic management could include dynamically opening an area if active monitoring does not demonstrate that whales are present or the implementation of a dynamic closure if whales are documented. Comments could include input on whether acoustic detection can trigger or maintain a closure, the number of days fishermen would require to remove all of their gear, how many whales would trigger a closure and for how long, whether in some areas closures shift rather than remove risk. In addition to input on the direct costs of replacing new gear, input is requested on indirect cost of gear modification measure alternatives, such as potential gear losses and catch reduction related to weak rope, use of one endline, and seasonal restricted areas. Information on the value and the ecological and economic benefits of whale conservation is also requested.

NEPA (42 U.S.C. 4321 et seq.) requires that Federal agencies prepare detailed statements assessing the environmental impact of and alternatives to major Federal actions significantly affecting the environment. NMFS has determined that an EIS should be prepared under NEPA for the purpose of informing the next phase of rulemaking to modify the Plan. We will prepare an EIS in accordance with NEPA requirements, as amended (42 U.S.C. 4321 et seq.); NEPA implementing regulations (40 CFR 1500-1508); and other Federal laws, regulations, and policies. Reasonable alternatives that are identified during the scoping period will be evaluated in the DEIS.

Summary of Expected Impacts

The DEIS will identify and describe the potential effects of Plan modifications on the human environment, including the natural and physical environment and the relationship of people with that environment, that are reasonably foreseeable and have a reasonably close causal relationship to the modifications. This includes such effects that occur at the same time and place as the alternatives and such effects that are later in time or occur in a different place. The alternatives that will be analyzed may include, but are not limited to, modifications to configurations of fishing gear, modification to fishing seasons and/or areas, and modifications to gear marking requirements. Expected potential impacts to commercial fishermen in the above-mentioned fisheries may include, but are not limited to, additional costs and labor to modify gear configurations and gear markings, labor costs associated with increased time required to retrieve gear under some gear modifications, reduced profit due to reduced catches associated gear modifications or with seasonally restricted access to fishing grounds. Expected potential impacts to Atlantic large whales include, but are not limited to, reduced mortality and serious injury due to a reduction in entanglement in fishing gear or reduced severity of any entanglements that do occur. Other potential impacts may include, but are not limited to, impacts (both beneficial and adverse) to other marine life, cultural resources, demographics, employment, and economics. These expected potential impacts will be analyzed in the DEIS and FEIS.

Schedule for the Decision-Making Process

After the DEIS is completed, NMFS will publish a notice of availability (NOA) and request public comments on the DEIS. After the public comment period ends, NMFS will review, consider, and respond to comments received and will develop the FEIS. NMFS expects to make the FEIS available to the public. A Record of Decision (ROD) will be completed no sooner than 30 days after the final EIS is released, in accordance with 40 CFR 1506.11.

Scoping Process: This Notice of Intent (NOI) commences the public scoping process for identifying additional issues and potential alternatives to modify the Plan to reduce mortalities and serious injuries of large whales in U.S. commercial fisheries to below PBR. Throughout the scoping process, Federal agencies, state, tribal, local governments, and the general public have the opportunity to help NMFS determine reasonable alternatives and potential measures to be analyzed in the EIS, as well as to provide additional information.

Everyone potentially impacted by or interested in changes to the Plan, and particularly in changes to management of commercial trap/pot and gillnet fisheries along the East Coast, is invited to participate in the public scoping process by submitting written input via email or by giving oral input at the scoping meeting. This scoping process aims to gather input on the gillnet and trap/pot fisheries regarding the scope of actions to be proposed for rulemaking, the development of alternatives to analyze in the EIS, and the potential impacts of management actions.

Information received through this scoping process will inform the development of alternative risk reduction measures for an environmental impact analysis on modifications to the Plan. Only inputs and suggestions that are within the scope of the proposed actions will be considered when developing the alternatives for analysis in the EIS. This includes items related to reducing risk of mortality and serious injury of large whales due to entanglements in commercial U.S. fishing gear and improving gear marking to reduce uncertainty about where entanglements occur. The purpose is to develop measures to fulfill the requirements of Section 118 of the MMPA, which regulates the taking of marine mammals incidental to U.S. commercial fishing operations. NMFS implements additional endangered species conservation and recovery programs under the ESA and also affords marine mammals protections under multiple programs pursuant to the MMPA. Therefore, for the purposes of the scoping period for the proposed action discussed in this notice, we are not requesting input related to other stressors, such as vessel strikes, anthropogenic noise, natural mortality, international entanglement risk, offshore wind development, or climate change.

To promote informed decision-making, input should be as specific as possible and should provide as much detail as necessary to allow a commenter's meaningful participation and fully inform NMFS of the commenter's position. Input should explain why the issues raised are important to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and other impacts affecting the quality of the human environment.

It is important that reviewers provide their input at such times and in such a manner that they are useful to the agency's preparation of the EIS. Comments should be provided prior to the close of the scoping period and should clearly articulate the reviewer's concerns and contentions. Input received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action discussed in this notice. Input submitted anonymously will be accepted and considered.

References

Linden, D.W. and Pace III, R.M. 2021. A multi-state mark-recapture-recovery model to estimate rates of severe injury and cause-specific mortality in North Atlantic right whales. North Atlantic Right Whale Consortium Annual Meeting. October 26-27, 2021.

Hayes, S.A., Josephson, E., Maze-Foley, K., Rosel, P.E., & Turek, J. (2021). U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 2020 (p. 403). Northeast Fisheries Science Center.

NMFS. 2021. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 2021 https://media.fisheries.noaa.gov/2022-08/NOAA-TM-AFSC-441.pdf

Pace III, R.M. May 2021. Revisions and Further Evaluations of the Right Whale Abundance Model: Improvements for Hypothesis Testing. NOAA NEFSC Tech Memo 269.

Pace, R.M., R. Williams, S.D. Kraus, A.R. Knowlton, H.M. Pettis. 2021. Cryptic mortality in North Atlantic right whales. Conserv. Sci. Pract. 3:e346

Pace, R.M., III, P.J. Corkeron and S.D. Kraus. 2017. State-space mark-recapture estimates reveal a recent decline in abundance of North Atlantic right whales. Ecol. and Evol. 7:8730-8741.

Pettis, H.M., Pace, R.M. III, Hamilton, P.K. 2022. North Atlantic Right Whale Consortium 2021 Annual Report Card. Report to the North Atlantic Right Whale Consortium.

Authority: 42 U.S.C. 4321 et seq.; 31 U.S.C 1361 et seq.