Environmental Impact Statement on Phase 2 Modifications to the Atlantic Large Whale Take Reduction Plan To Reduce Serious Injury and Mortality 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:

The National Marine Fisheries Service (NMFS) intends to begin a rulemaking process that will amend the Atlantic Large Whale Take Reduction Plan (Plan) to reduce the risk of mortalities and serious injuries of North Atlantic right whales (Eubalaena glacialis) and other large whales caused by entanglement in commercial trap/pot and gillnet fisheries along the U.S. East Coast. 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 Plan. This notice informs the public of upcoming scoping meetings to solicit public input on Phase 2 of our efforts to reduce the risk of entanglement to right, humpback, and fin whales in U.S. commercial fisheries managed under the Plan. Phase 1, 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, is anticipated shortly, and was analyzed in a Final Environmental Impact Statement released (FEIS) on July 2, 2021. Phase 2 focuses on risk reduction in U.S. East Coast gillnet, Atlantic mixed species trap/pot, and Mid-Atlantic lobster and Jonah crab trap/pot fisheries.

DATES:

Written or electronic scoping inputs must be received at the appropriate address, email mailbox, or phone number (see ADDRESSES) by October 21, 2021.

Public Hearings: At least seven virtual public meetings will be held during the public comment period. In addition, we will be holding three call-in days for interested parties to call and speak to a NMFS staff member to ask questions or submit information and recommendations.

See ADDRESSES to obtain public hearing and call-in day notification details. Scoping will also occur through presentations and discussions at the Atlantic States Marine Fisheries Commission and New England, Mid-Atlantic, and South Atlantic Fishery Management Council meetings during the scoping period.

ADDRESSES:

You may submit input on this document via email. Submit all electronic public comments by sending an email to nmfs.gar.ALWTRT2021@noaa.gov using the subject line “Comments on Atlantic Large Whale Take Reduction Plan Scoping.” Input can also be provided via webinar during scoping meetings or via phone on call-in days. Remote public meeting dates, access, and call-in information is available in the SUPPLEMENTARY INFORMATION section. Meeting information will also be posted on the Plan website fisheries.noaa.gov/ALWTRP, or you may contact Marisa Trego for information on dates and times.

FOR FURTHER INFORMATION CONTACT:

Marisa Trego, 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

The proposed action for analysis in the EIS would be NMFS rulemaking to modify the Plan to reduce mortalities and serious injuries from incidental commercial fishing gear entanglements in U.S. East Coast gillnet fisheries as well as trap/pot fisheries, including the Atlantic mixed species and Mid-Atlantic lobster and Jonah crab 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 potential biological removal (PBR) level.

North Atlantic right whales are listed as endangered under the Endangered Species Act (ESA) and considered depleted under the Marine Mammal Protection Act (MMPA). After more than two decades of an increasing trend, the right whale population has been declining since 2010, and the most recent estimate of 368 whales in 2019 (Pace 2021) is well below the optimum sustainable population. This estimate represents a minimum population number and reflects new research suggesting that many mortalities occur undetected (Pace et al. 2021). The decline was exacerbated by an Unusual Mortality Event (UME) that began in 2017, when a total of 17 confirmed dead right whales were documented. As of July 2021, the UME totals 50 individuals, comprising 34 right whale mortalities and an additional 16 seriously injured right whales. Of these 50 individuals, 18 definitively involved entanglement and another 5 were probable entanglements. During this period (2017-2021), only 40 calves have been born.

One of the primary causes of mortality and serious injury of North Atlantic right whales is entanglement in fishing gear. Climate change and associated changes in prey abundance and distribution are exacerbating the population decline by shifting the overlap between right whales and fisheries and reducing the population's resilience to stressors. With mortalities 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 level. 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. NMFS implements measures under the Plan. Since 1997, the Plan has been amended several times to reduce the impacts of fishing gear on large whales in the region through measures that include area closures, gear configuration requirements, and gear marking rules. A final rule implementing new modifications to reduce mortalities and serious injuries caused by entanglement in the northeast American lobster and Jonah crab trap/pot fishery is anticipated shortly, and was analyzed in a FEIS released on July 2, 2021 (86 FR 35288).

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. Specifically, these fisheries include: (1) 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; (2) 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; (3) Northeast drift gillnet fisheries for shad, herring, mackerel, and menhaden and any residual large pelagic driftnet effort in New England; (4) 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; (5) Southeast Atlantic shark gillnet fisheries for large and small coastal sharks, including but not limited to blacktip, blacknose, finetooth, bonnethead, and sharpnose sharks; (6) Northeast anchored float gillnet fishery for mackerel, herring (particularly for bait), shad, and menhaden; and (7) 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; (8) Mid-Atlantic trap/pot fisheries for lobster and Jonah crab, and (9) Atlantic trap/pot fishery for Atlantic blue crab.

The Team met most recently on June 28 and July 1, 2021, to discuss the types of management actions that should be included in scoping to decrease the risk and severity of right whale and other large whale entanglements in the above-listed fisheries. Further information about the Plan and the 2021 Team meetings where potential management measures were discussed, including recordings of all the meetings, can be found at the Team's website: https://www.fisheries.noaa.gov/alwtrp.

Preliminary Description of Proposed Action and Alternatives

NMFS will consider suites of regulatory measures that would modify existing Plan requirements to address ongoing large whale entanglements. The primary purpose of the Plan modifications is to reduce the mortality and serious injury of right whales in U.S. East Coast gillnet, Atlantic mixed species trap/pot, and Mid-Atlantic lobster and Jonah crab trap/pot fisheries. In addition to the proposed action and the no action alternative, potential alternatives that the draft EIS may analyze include measures that would reduce or weaken line in gear associated with these fisheries, to reduce co-occurrence of this gear and right whales, and to improve identification of entangling gear. For gillnet fisheries, possible management options include changing configurations such as increasing the minimum number of net panels per set to reduce endline numbers, 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, establishing seasonal restricted areas, and expanding gear marking requirements. For trap/pot fisheries, possible management options include changing configurations such as traps per trawl to reduce endline numbers and installation of weak inserts or ropes that break at forces of less than 1,700 lb, establishment of seasonal restricted areas, and expansion of gear marking requirements.

NEPA (42 U.S.C. 4321 et al.) requires that Federal agencies conduct an environmental analysis of their proposed actions to determine if the actions may significantly affect the human environment. NMFS has determined that an EIS should be prepared under NEPA for the purpose of informing rulemaking to modify the Plan. We will prepare an EIS in accordance with NEPA requirements, as amended (42 U.S.C. 4321 et al.); 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 draft EIS.

Summary of Expected Impacts

The draft EIS will identify and describe the potential effects of the proposed action on the human environment that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action. This includes such effects that occur at the same time and place as the proposed action or alternatives and such effects that are later in time or occur in a different place. The proposed action may include, but is 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 for modifying gear configurations and gear markings, and reduced profit due to reduced catches, access to fishing grounds, or seasons. 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 draft and final EIS.

Schedule for the Decision-Making Process

After the draft EIS is completed, NMFS will publish a notice of availability (NOA) and request public comments on the draft EIS. NMFS expects to issue the NOA in the Fall of 2022. After the public comment period ends, NMFS will review, consider, and respond to comments received and will develop the final EIS. NMFS expects to make the final EIS available to the public in 2023. A record of decision will be completed no sooner than 30 days after the final EIS is released, in accordance with 40 CFR 1506.11.

Scoping Process: This NOI commences the public scoping process for identifying issues and potential alternatives for consideration. 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.

NMFS will hold virtual public scoping meetings at the following dates and times (eastern):

• Thursday, September 9, 2021, 6:30-8:30 p.m., for Maryland, Delaware, Virginia, Northern North Carolina trap/pot fisheries;
• Tuesday, September 14, 2021, 6:30-8:30 p.m., for Rhode Island, Connecticut, New York, and New Jersey trap/pot fisheries;
• Tuesday, September 21, 2021, 6:30-8:30 p.m., for Maine, New Hampshire, Massachusetts, and Rhode Island trap/pot fisheries;
• Thursday, September 23, 2021, 6:30-8:30 p.m., for Rhode Island, Connecticut, New York, and New Jersey gillnet fisheries;
• Tuesday, October 5, 2021, 6:30-8:30 p.m., for Southern North Carolina, South Carolina, Georgia, Florida, all gear;
• Tuesday, October 12, 2021, 6:30-8:30 p.m., for Maryland, Delaware, Virginia, Northern North Carolina gillnet fisheries;
• Thursday, October 14, 2021, 6:30-8:30 p.m., for Maine, New Hampshire, Massachusetts, and Rhode Island gillnet fisheries.

To register, go to our website: https://www.fisheries.noaa.gov/alwtrp. NMFS will also hold public call-in days:

• Friday, October 1, 2021, 12 noon to 6 p.m.
• Monday, October 4, 2021, 8 a.m. to 3 p.m.
• Tuesday, October 12, 10 a.m. to 4 p.m.

For more information on how to call, go to our website: https://www.fisheries.noaa.gov/alwtrp.

Request for Identification of Potential Alternatives, Information, and Analyses Relevant to the Proposed Action

Everyone potentially impacted by or interested in changes to the Plan, and particularly, 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, attending public scoping webinar meetings, or calling us during designated call-in days. This scoping process aims to gather input 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.

For gillnet fisheries, the Team discussed and NMFS requests input on management options, particularly concerning information about operational challenges, time, and costs required to change configurations such as net panels per set to reduce endline numbers, gear tending or daytime-only sets for gillnets, installation of weak inserts or rope that breaks at forces of less than 1,700 lb, to establish restricted areas, and to expand gear marking requirements. For trap/pot fisheries, the Team discussed and NMFS requests input on management options, particularly including information about operational challenges, time, and costs required to change configurations such as traps per trawl to reduce endline numbers and to install weak inserts or rope that breaks at forces of less than 1,700 lb, to establish restricted areas, and to expand gear marking requirements.

NMFS and the Team particularly request input on latent effort in U.S. East Coast gillnet and trap/pot operations that may affect measures designed to reduce gear that could entangle whales, potential impacts to fishery operations arising from gear modifications likely to be considered, potential risks and benefits to large whales, and information regarding whale distribution or behavior along the U.S. East Coast that should be considered in developing risk reduction measures. In addition to direct costs of replacing new gear, input is requested on indirect cost of gear modification measure alternatives, such as costs and time required to install sleeves, install weak rope, and mark gear, and costs related to fewer vertical lines, seasonal closures, or exempted areas. Information on the value of whale conservation and the economic benefits of whale conservation is also requested.

NMFS and the Team also identified data needs to support future discussions, including data on open access fisheries, gear configurations across the fisheries, whale distribution, whale behavioral information, and gear marking. Data related to fishing gear configurations specific to areas or target species, how gear alterations measures may affect those fisheries, and how existing gear configurations contribute to large whale entanglement risk would be very welcome. As an example, longer gear marks near the buoy and gear marks distinguishing permitting states, specific Federal and state water markings, and gear identification tape throughout buoy lines were analyzed in the FEIS released on July 2, 2021, for northeast lobster and Jonah crab trap/pot fisheries. One Team member suggested restricting fishing rope diameter to no greater than 0.5 inch (1.27 cm) to distinguish it from offshore Canadian gear.

Information received through this scoping process will inform the development of alternative risk reduction measures for an environmental impact analysis. 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 this proposed action, 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. Input submitted anonymously will be accepted and considered.

Citations

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.

Authority: This NOI is published pursuant to NEPA, 42 U.S.C. 4321 et al., and MMPA, 31 U.S.C. 1361 et al.