SUPPLEMENTARY INFORMATION:

Purpose and Need for Proposed Action

Status of North Atlantic Right Whales

North Atlantic right whales (hereafter “right whales”) are listed as endangered under the Endangered Species Act (ESA) and considered depleted under the MMPA. After more than 2 decades of an increasing population trend peaking in 2011 with an estimated 484 whales, the population declined to an estimate of 359 living right whales in 2020 with a more recent increase to approximately 380 living right whales in 2024 (Linden 2025). The current population estimate is still well below the stock's optimum sustainable population (MMPA sec. 3(9)). An unusual mortality event (UME) was declared in 2017, when a total of 17 confirmed dead right whales were documented, many in Canadian waters. As of July 2026, the UME involves documented impacts to 176 individuals in both U.S. and Canadian waters, comprising 43 right whale mortalities, 41 seriously injured right whales, and 92 whales with sublethal injuries or illnesses. The UME considers observed and documented incidents, and while these incidents confirm human impacts on the population, the best available science predicts that the actual number of right whale deaths and serious injuries is higher, as many incidents are never observed. From 2017 through 2023, there were an estimated 147 deaths (Linden 2025). Estimated deaths for 2024, 2025, and 2026 are not yet available. NMFS will publish these data when they are available. Nevertheless, the combination of known and unknown human caused deaths and serious injuries appear to be hindering the ability of right whales to meet recovery goals.

One of the primary causes of mortality and serious injury (M/SI) of right whales is entanglement in fishing gear. Of the 176 documented incidents in the UME, 111 (63 percent) are attributed to entanglements, including 48 either killed by entanglements (11) or so seriously injured (37) that they are unlikely to survive, plus another 63 that are injured or in poor health (reduced body size, ability to reproduce) as the result of an entanglement. Scarring evidence of entanglement is observed on more than 85 percent of all right whales, with the vast majority having been entangled more than once, though only 7.8 percent of all entanglement events are seen with attached gear (Hamilton 2024). The 2023 North Atlantic Right Whale Stock Assessment Report established the potential biological removal (PBR) for the stock at 0.73 (Hayes et al. 2024), meaning that fewer than one right whale can be killed or seriously injured by human causes each year in order for the stock to reach its optimum sustainable population based on the data available at the time of publication. However, the U.S. and Canada implemented additional conservation measures in the early 2020s and the impact of those measures on the population could not be fully addressed in the 2023 Report.

Changes in oceanographic conditions and associated changes in prey abundance and distribution exacerbated the right whale's population decline in the late 2010s. These changes shifted the overlap between right whales, fisheries and vessel traffic into areas where protections were not previously implemented, and increased the energy required by right whales traveling farther in search of food. Range-wide, human-caused annual M/SI likely remains higher than the calculation of PBR in 2023. We have not yet calculated PBR based on the most recent data but intend to do so as part of the process of re-convening the Atlantic Large Whale Take Reduction Team (Team) later this year. Further mitigation of entanglements in U.S. commercial fisheries may be necessary to ensure that U.S. fishery-caused M/SI is below that PBR, the short-term goal under the MMPA, and to work towards the MMPA long-term goal of insignificant levels of M/SI (defined as 10 percent of PBR), taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans. The insignificance level was last calculated at 0.073/year (Hayes et al. 2024). In addition, while the population appears ( printed page 53233) to be exhibiting modest growth in recent years, the population is not currently achieving the average 2-percent growth rate for a period of 35 years set forth in the North Atlantic Right Whale Recovery Plan as the recovery goal under the ESA.^[1]

Atlantic Large Whale Take Reduction Plan and History

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 M/SI of marine mammals covered by the plan to a rate below each stock's PBR level. NMFS considers the Team's recommendations when amending and implementing Take Reduction Plans through the rulemaking process.

The Team was first convened in 1996 to recommend measures to reduce mortalities and serious injuries of right, humpback, and fin whales incidental to certain U.S. commercial fisheries. NMFS develops and implements measures under the Plan. Since 1997, the Plan has been amended several times to reduce the impacts of fishing gear on large whales, particularly on endangered right whales, through measures that include area closures; gear configuration requirements such as the use of sinking groundline, trawling up, and weak links; and gear marking rules. In 2021, a final rule (86 FR 51970; September 17, 2021) implemented modifications to reduce the risk of M/SI of right whales caused by entanglement in the northeast American lobster and Jonah crab trap/pot fishery by approximately 60 percent, which was analyzed in a final environmental impact statement (FEIS) published on July 2, 2021 (86 FR 35288).

In May 2022, NMFS convened the Team to address large whale M/SI caused by entanglements in the other fisheries regulated under the Plan, namely the U.S. East Coast gillnet, Atlantic mixed species trap/pot, and mid-Atlantic lobster and Jonah crab trap/pot fisheries, which were not addressed by the 2021 final rule. Scoping on measures to reduce the impacts of these fisheries was conducted from August 10, 2021 through October 21, 2021 (86 FR 43996; August 11, 2021). However, in the fall of 2022, the Team received new population information showing that the right whale population decline was continuing at a high rate and confirming that most mortalities are unobserved as carcasses, thus indicating a need for greater risk reduction than previously anticipated. In addition, a 2022 summary judgment decision in Ctr. for Biological Diversity v. Raimondo ruled that the 2021 final rule failed to provide right whales with sufficient protections under the MMPA from entanglement-caused mortalities and serious injuries. 610 F. Supp. 3d 252 (D.D.C. 2022) (vacated, 2024 WL 324103 (D.D.C. Jan. 29, 2024)). Given that ruling and the updated population mortality estimate, NMFS determined that additional risk reduction was likely necessary from all fixed gear fisheries coastwide regulated under the Plan including the lobster and Jonah crab fisheries.

Given the potential for additional needed risk reduction, NMFS opened a second 30-day scoping period to gather additional public input on further modifications to the Plan from September 9 to October 11, 2022 (87 FR 55405; September 9, 2026). The Team met again in November and December 2022, and although consensus was not reached, a majority of Team members present voted in favor of a suite of recommendations for additional risk reduction measures.

Shortly after the 2022 meetings were concluded, Congress passed the Consolidated Appropriations Act, 2023 (CAA). The CAA deemed the 2021 rule sufficient for the authorization of American lobster and Jonah crab trap/pot fisheries to be in full compliance with the MMPA and ESA until December 31, 2028, reflecting Congressional intent to provide the industry with regulatory stability while feasible solutions are developed. The CAA also directs NMFS to issue “new regulations for the American lobster and Jonah crab fisheries consistent with the [MMPA and ESA]” that “take effect by December 31, 2028.”

The purpose of this proposed NEPA action is to evaluate measures that may be needed in 2029 in order to fill the requirements both of section 118 of the MMPA, which regulates the taking of marine mammals incidental to U.S. commercial fishing operations and of the CAA. Scoping is an early step in the development of regulations to ensure compliance with the CAA.

Take Reduction Planning

To meet the timeline set by Congress in the CAA, we will convene a series of Team meetings in 2026 and 2027. During these meetings, the Team will discuss and may recommend measures to reduce right whale M/SI from U.S. commercial fishing gear to MMPA-compliant levels, should further reductions be required. Since the Team last met in 2022, new estimates for population abundance and mortality have been released (Linden 2025), which show a small but positive short-term (2021-2024) estimated population increase and a reduction in estimated mortality. Based on the 2023 PBR calculation and the 2019-2024 M/SI data (Hayes et al. 2024), entanglement-related deaths and serious injuries exceeded the MMPA required levels at the time that 2023 PBR calculation was made. However, prior to meeting with the Team, NMFS will review the best available scientific information describing right whale M/SI remaining after, among other things, the 2021 Plan modifications were fully implemented in May 2022, and the Massachusetts Restricted Area was expanded in 2024 (89 FR 8333, February 7, 2024) to determine whether additional risk reduction is necessary, and if so, identify a target for risk reduction.

If needed, NMFS anticipates employing a range of risk reduction targets to achieve PBR to take into account uncertainties regarding where and how M/SI occurs, with intent to rigorously evaluate the economic feasibility of any proposed measures. Given the annual variability and uncertainties in determining the extent to which estimated/unseen deaths and serious injuries of right whales are caused by U.S. commercial fisheries, NMFS anticipates that the Team would develop recommendations for broad risk reduction rather than a singular risk reduction target. Professional third-party facilitation of Team meetings is intended to forge mutually beneficial outcomes among the competing interests to minimize regulatory burdens and meet administration priorities, while fulfilling statutory requirements. At the Team meetings, the Team will develop recommendations for NMFS to consider in drafting a proposed rule. NMFS will incorporate any relevant new information available after Team deliberations into both proposed and final rules as appropriate during the multi-year rulemaking process. NMFS will also consider Team recommendations and any new information in furtherance of the Plan's long-term MMPA goal: to reduce, within ( printed page 53234) 5 years of its implementation, the incidental M/SI of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing state or regional fishery management plans.^[2]

Scoping on Modifications to the Atlantic Large Whale Take Reduction Plan

Any needed modifications to the Plan would be informed by Team recommendations, decades of discussions with Team members, as well as information obtained during scoping, and other available information. The Team will be provided with previously-discussed recommendations informed by new technologies, improved whale distribution data from increased survey efforts, and improved fishery-dependent data sources describing fishing gear distribution and configurations. A range of risk reduction considerations can be found in the scoping document on the website identified in the ADDRESSES section.

Modifications analyzed may affect the following fisheries currently regulated by the Plan: (1) northeast trap/pot fisheries for American lobster and Jonah crab; (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 and anchored float 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, herring, menhaden, and shad; (4) northeast drift gillnet fisheries for shad, herring, mackerel, and menhaden and any residual large pelagic driftnet effort in New England; (5) Massachusetts mixed species trap/pot; (6) 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; (7) Mid-Atlantic trap/pot fisheries for lobster and Jonah crab; (8) Atlantic trap/pot fishery for Atlantic blue crab; (9) 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; and (10) Southeast Atlantic shark gillnet fisheries for large and small coastal sharks, including but not limited to blacktip, blacknose, finetooth, bonnethead, and sharpnose sharks.

To inform Team discussions and build on past efforts, NMFS requests information from the public on the following topics: (1) vertical line reduction through gear reduction measures (trap/line caps, reduced gillnet panel lengths or numbers, ropeless retrieval devices subject to rigorous testing for safety, affordability, and operational feasibility for the fleet) or gear configuration changes (increasing nets per string or traps per trawl; lower profile gillnets through tie downs or restricted panel heights); (2) fishing effort reductions through shorter soak times or restrictions to daytime fishing; (3) measures that reduce the likelihood of severe injuries including gear tending or gear modifications to reduce the weight of gear (single traps on weak rope); (4) reducing the breaking strength of nets and ropes so that entangled whales could break free; (5) seasonal restricted areas that would prohibit persistent buoy lines or be closed to fishing in those areas where right whales can be predicted to aggregate seasonally; (6) development of a dynamic area management program that would allow real-time responses to right whale aggregations; (7) modifications to the timing or dimensions of existing seasonal restrictions, seasonal closure areas, and exemption areas; (8) updates to gear marking requirements; (9) data gaps; and (10) any additional measures not mentioned above. For more details, please visit the Atlantic Large Whale Take Reduction Plan website at www.fisheries.noaa.gov/​alwtrp.

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 environmental analysis should be prepared under NEPA for the purpose of informing the next step in any rulemaking necessary to modify the Plan. We plan to prepare an environmental analysis in accordance with NEPA requirements, as amended (42 U.S.C. 4321 et seq.) and other Federal laws, regulations, and policies.

Summary of Potential Impacts

The environmental analysis 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 may include 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 including weak rope, weak links, trawling up, float line, line caps, effort controls, and the possible use of on-demand gear in some seasonal restricted areas; modification to fishing seasons and/or areas including the potential for dynamic management areas and changes to gear tending requirements; and modifications to gear marking requirements. Potential impacts to commercial fishermen in the above-mentioned fisheries may include, but are not limited to, severe economic strain on family-owned businesses, threats to the cultural heritage of coastal fishing communities, 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, safety hazards associated with increased time required to retrieve gear under some modifications, costs associated with the purchase of new gear, reduced profit due to reduced catches, associated gear modifications, gear moving, or gear removal and other costs associated with seasonally restricted access to fishing grounds. Potential impacts to Atlantic large whales include, but are not limited to, reduced M/SI due to a reduction in entanglement in fishing gear or reduced injury 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. Consideration of any irreversible and irretrievable commitments of Federal resources which would be involved in any proposed action should it be implemented may also be analyzed. Public comments on potential impacts ( printed page 53235) are requested and these potential impacts will be analyzed.

The environmental analysis may identify and describe: reasonably foreseeable environmental effects of the proposed agency action; reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented; a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative that are technically and economically feasible and meet the purpose and need of the proposal; the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.

Schedule for the Decision-Making Process

NMFS plans to convene the Team in 2026 and 2027 to develop consensus recommendations on Plan modifications, as necessary to ensure the impacts of U.S. commercial fisheries on Atlantic large whales complies with the MMPA, while also minimizing regulatory burdens. NMFS anticipates completing an Environmental Assessment or draft environmental impact statement (DEIS), if required, by late 2027. If a DEIS is required, NMFS will publish a notice of availability requesting public comments. After the public comment period ends, NMFS will review, consider, and respond to comments received and will develop the FEIS, if an FEIS is required. NMFS will make the FEIS available to the public at or around the time NMFS publishes the final rule. NMFS will make and issue a Record of Decision in late 2028, in order to meet the timeline set forth by Congress in the CAA.

This NOI commences a public scoping period in which NMFS requests public comment on issues and potential alternatives to modify the Plan to reduce M/SI of large whales in U.S. commercial fisheries to below PBR while also reducing regulatory burden. This is not a notice of proposed rulemaking. 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, as well as to provide additional information.

Everyone potentially impacted by or interested in changes to the Plan is invited to participate in the public scoping process by submitting written input via the Regulations.gov comment portal, 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, and the potential impacts of management actions.

Information received through this scoping process will inform the potential development of alternative risk reduction measures for an environmental 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. 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 and the CAA. NMFS is also soliciting comments on measures that would further the recovery goals of ESA-listed right whales as affected by fisheries regulated under the Plan, as well as topics related to incidental take authorizations and statements under the MMPA and ESA. 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.

To promote informed decision-making, input should be as specific as possible and should provide as much detail as necessary to 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 potential alternatives to a proposed action, as well as economic and other impacts affecting the quality of the human environment.

It is important that commenters provide their input prior to the close of the scoping period and clearly articulate their 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 a proposed action discussed in this notice. Input submitted anonymously will be accepted and considered.

References

Hamilton, P.K., Howe, K.R., Knowlton, A.R., Lockwood, D.J., McPherson, K.D., Pettis, H.M., Warren, A.M., Vance, S.L., and Zani, M.A. 2024. Maintenance of the North Atlantic Right Whale Catalog, Whale Scarring and Visual Health Databases, Anthropogenic Injury Case Students, and Near Real-Time Matching for Biopsy Efforts, Entangled, Injured, Sick, or Dead Whales. Final Report to the National Marine Fisheries Service 1305M2-18-P-NFFM-0108.

Hayes, S., E. Josephson, K. Maze-Foley, P.E. Rosel, and J. McCordic, Eds. 2024. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 2023. NOAA Technical Memorandum NMFS-NE-321. 372 pp.

Linden, D.W. 2025. Population size estimation of North Atlantic right whales from 1990-2024. NOAA NEFSC Technical Memorandum 20.

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: 42 U.S.C. 4321 et seq.;16 U.S.C. 1361 et seq.)

91 FR 53231