[Federal Register Volume 76, Number 185 (Friday, September 23, 2011)]
[Proposed Rules]
[Pages 59102-59108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24550]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 640

[Docket No. 100305126-1558-03]
RIN 0648-AY72


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; 
Amendment 10

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 10 to the 
Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of 
Mexico and South Atlantic (FMP), as prepared and submitted by the Gulf 
of Mexico and South Atlantic Fishery Management Councils (Councils). If 
implemented, this rule would revise the lobster species contained 
within the fishery management unit, establish an annual catch limit 
(ACL) for spiny lobster, revise the Federal spiny lobster tail-
separation permitting requirements, revise the regulations specifying 
the condition of spiny lobster landed during a fishing trip, modify the 
undersized attractant regulations, modify the framework procedures, and 
incorporate the state of Florida's derelict trap removal program into 
the Federal regulations that apply to the exclusive economic zone (EEZ) 
off Florida. Additionally, this rule would revise codified text to 
reflect updated contact information for the state of Florida and 
regulatory references for the Florida Administrative Code. The intent 
of this proposed rule is to specify ACLs for spiny lobster while 
maintaining catch levels consistent with achieving optimum yield (OY) 
for the resource.

DATES: Written comments must be received on or before October 24, 2011.

ADDRESSES: You may submit comments on the proposed rule identified by 
NOAA-NMFS-2011-0106 by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Susan Gerhart, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    To submit comments through the Federal e-rulemaking portal: http://www.regulations.gov, click on ``submit a comment,'' then enter ``NOAA-
NMFS-2011-0106'' in the keyword search and click on ``search.'' To view 
posted comments during the comment period, enter ``NOAA-NMFS-2011-
0106'' in the keyword search and click on ``search.'' NMFS will accept 
anonymous comments (enter N/A in the required field if you wish to 
remain anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

[[Page 59103]]

    Comments received through means not specified in this rule will not 
be considered.
    Electronic copies of documents supporting this proposed rule, which 
include a draft environmental impact statement and an initial 
regulatory flexibility analysis (IRFA), may be obtained from the 
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: 727-824-
5305, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The spiny lobster fishery of the Gulf of 
Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP 
was prepared by the Councils and implemented through regulations at 50 
CFR parts 622 and 640 under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act).

Background

    The 2006 revisions to the Magnuson-Stevens Act require that in 
2011, for FMPs for fisheries determined by the Secretary to not be 
subject to overfishing, ACLs must be established at a level that 
prevents overfishing and helps to achieve OY within a fishery. The 
Magnuson-Stevens Act requires NMFS and regional fishery management 
councils to prevent overfishing and achieve, on a continuing basis, the 
OY from Federally managed stocks. These mandates are intended to ensure 
fishery resources are managed for the greatest overall benefit to the 
nation, particularly with respect to providing food production and 
recreational opportunities, and protecting marine ecosystems.

Management Measures Contained in This Proposed Rule

    This rule would remove four species from the FMP; establish an ACL 
and an ACT for spiny lobster; revise the requirements for the Federal 
spiny lobster tail-separation permit; revise the regulations specifying 
the condition of lobster landed during a fishing trip; modify the 
regulations with respect to the use of undersized attractants; modify 
the framework procedures; and incorporate the state of Florida's 
derelict trap removal program into the Federal regulations that apply 
to the EEZ off of Florida. Additionally, this rule would revise 
codified text throughout the spiny lobster regulations to update 
relevant contact information and regulatory references.

Removal of Species From the Fishery Management Unit

    Five species of lobster are currently within the FMP: the Caribbean 
spiny lobster (Panulirus argus), the smoothtail spiny lobster 
(Panulirus laevicaus), the spotted spiny lobster (Panulirus guttatus), 
the Spanish slipper lobster (Scyllarides aequinoctialis), and the 
ridged slipper lobster (Scyllarides nodifer). At present, only the 
Caribbean spiny lobster and the ridged slipper lobster have associated 
regulatory text; the other species are in the fishery management unit 
for data collection purposes only. This rule would remove all species 
from the FMP except the Caribbean spiny lobster (spiny lobster). The 
Councils and NMFS have determined these other lobster species are not 
in need of Federal management at this time. Although these species are 
targeted in some areas, landings are relatively low. Furthermore, 
individual states have the option to extend their regulations into 
Federal waters for these other lobster species. Also, most landings of 
these other species are off Florida, and Florida regulations concerning 
the taking of egg-bearing females, or stripping or removing eggs, are 
more conservative than Federal regulations for most of these species. 
Therefore, if Florida were to extend its regulations into Federal 
waters, these species could receive greater protection than under 
current management. If landings or effort changed for the other lobster 
species and the Councils determined management at the Federal level was 
needed, these species could be added back into the FMP at a later date.

Spiny Lobster ACL and Accountability Measure

    In 2006, the Magnuson-Stevens Act was re-authorized and included a 
number of changes to improve the conservation of managed fishery 
resources. Included in these changes are requirements that fishery 
management councils establish both a mechanism for specifying ACLs at a 
level such that overfishing does not occur in a fishery and 
accountability measures (AMs) to help ensure that ACLs are not exceeded 
and to mitigate any ACL overages that may occur. Guidance also requires 
fishery management councils to establish a control rule to determine 
allowable biological catch (ABC).
    The Councils accepted the ABC control rule developed by the Gulf 
Council's Scientific and Statistical Committee (SSC), which set the ABC 
for spiny lobster at 7.32 million lb (3.32 million kg). The Councils 
chose not to set sector allocations and set a stock ACL equal to the 
ABC. Therefore, the spiny lobster stock ACL is proposed to be set at 
7.32 million lb (3.32 million kg). An ACT was set at 90 percent of the 
ACL, which is 6.59 million lb (2.99 million kg). If the ACT is exceeded 
in any year, the Councils will convene a scientific panel to review the 
ACL and ACT, and determine if additional AMs are needed. The ACT is 
proposed to serve as the AM for the spiny lobster stock. Landings have 
not exceeded the ACT level since the 2000/2001 fishing year. Therefore, 
it is unlikely the ACT would be exceeded under the current ACT 
preferred alternative based on landings history. However, the updated 
framework procedure contained within this amendment would facilitate 
timely adjustments of the ACT or ACL if necessary.

Revisions to Federal Spiny Lobster Tail-Separation Permit Requirements

    Spiny Lobster Amendment 1 (July 15, 1987, 52 FR 22659) initially 
implemented the Federal spiny lobster tail-separation permit. The 
original intent of the Councils was to confine holders of this permit 
to the commercial sector. However, the current requirements for 
obtaining the Federal spiny lobster tail-separation permit do not 
restrict the permit to commercial fishermen, which is contrary to the 
Councils' original intent. This rule would require applicants for a 
Federal spiny lobster tail-separation permit to possess either (1) A 
Federal spiny lobster permit or (2) a valid Florida Restricted Species 
Endorsement and a valid Crawfish Endorsement associated with a valid 
Florida Saltwater Products License.

Condition of Spiny Lobster Landed During a Fishing Trip

    Under certain situations and with possession of a valid Federal 
tail-separation permit, Caribbean spiny lobster tails may be separated 
from the body onboard a fishing vessel. This tail-separation provision 
can create difficulties for law enforcement personnel in determining if 
the lobster were originally of legal size. This rule would require 
lobster to be landed either all whole or all tailed during a single 
fishing trip. Requiring lobsters to be landed all whole or all tailed 
would discourage selective tailing of potentially undersized lobsters 
and thereby aid the enforcement of the minimum size limit.

Use of Undersized Attractants

    Federal regulations allow as many as 50 spiny lobsters less than 
the minimum size limit or one per trap, whichever is

[[Page 59104]]

greater, to be retained aboard a vessel to attract other lobsters for 
harvest. Currently, Federal regulations are not consistent with Florida 
regulations, which allow the retention of as many as 50 spiny lobsters 
less than the minimum size limit and one per trap. This rule would 
change the Federal regulations specific to the use of undersized 
attractants to be consistent with current Florida regulations. 
Additionally, although approximately 10 percent mortality is associated 
with the use of undersized attractants, traps using non-lobster bait or 
no bait at all take up to two to three times longer to harvest the same 
amount of lobsters as traps that use undersized attractants. This 
increase in effort may increase the bycatch and bycatch mortality of 
other species. Therefore, the use of undersized attractants that are 
consistent with Florida regulations provides both enforcement and 
biological benefits.

Modification of Generic Framework Procedures

    To facilitate timely adjustments to harvest parameters and other 
management measures, the Councils have added the ability to adjust ACLs 
and AMs, and establish and adjust target catch levels, including ACTs, 
to the current framework procedures. These adjustments or additions may 
be accomplished through a regulatory amendment which is less time 
intensive than an FMP amendment. By including ACLs, AMs, and ACTs in 
the framework procedure for specifying total allowable catch, the 
Councils and NMFS would have the flexibility to more promptly alter 
those harvest parameters as new scientific information becomes 
available. The proposed addition of other management options into the 
framework procedures would also add flexibility and the ability to more 
timely respond to certain future Council decisions through the 
framework procedures.

Removal of Derelict Spiny Lobster Traps in the EEZ Off Florida

    On August 27, 2009, an Endangered Species Act (ESA) biological 
opinion evaluating the impacts of the continued authorization of the 
spiny lobster fishery on ESA-listed species was completed. The opinion 
contained specific terms and conditions required to implement the 
prescribed reasonable and prudent measures, including consideration of 
alternatives to allow the public to remove trap-related marine debris 
in the EEZ off Florida. This proposed rule would authorize the removal 
of traps in Federal waters off Florida through Florida's trap cleanup 
program, as provided in existing Florida regulations. Florida's trap 
cleanup program includes provisions for public participation.

Revisions To Update Contact Information and Regulatory Reference Text

    This rule proposes to revise a number of references within the 
regulations for spiny lobster. Specifically, this proposed rule would 
update the spiny lobster regulations with the contact information for 
the state of Florida administrative offices and the relevant references 
within the Florida statutes and administrative code that are contained 
within the Federal regulations in 50 CFR parts 622 and 640. These 
additional revisions are unrelated to the actions contained in 
Amendment 10.

Actions in Amendment 10 That Are Not Contained in This Rulemaking

    Amendment 10 also contains non-regulatory actions to revise the 
definitions of management thresholds. Definitions of maximum 
sustainable yield (MSY), optimum yield (OY), overfishing, and 
overfished were set for Caribbean spiny lobster in Amendment 6 to the 
FMP. Currently, the Councils have different definitions for each 
reference point. Amendment 10 would set a single definition for each 
biological reference point that would be used by both Councils and 
allow for a more consistent management of spiny lobster.
    Currently, no allocations are set between the commercial and 
recreational sectors for spiny lobster. The Councils considered setting 
such allocations, but instead chose to not sector allocations and 
therefore allow for a stock ACL, stock ACT, and AM that affects both 
sectors.
    The Councils considered alternatives to meet requirements from the 
2009 biological opinion to establish lobster closed areas and lobster 
gear trap line marking requirements to protect threatened and 
endangered species; however, they chose to take no action at this time 
to allow time for additional stakeholder input. The Councils intend to 
develop Amendment 11 to the Spiny Lobster FMP to implement these 
measures prior to the beginning of the next spiny lobster commercial 
fishing season that begins on August 6, 2012.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with Amendment 10 and the FMP subject to this rulemaking, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act, for this proposed rule. The IRFA describes the 
economic impact this rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the 
objectives of, and legal basis for this action are contained at the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. A copy of the full analysis is available from NMFS (see 
ADDRESSES). A summary of the IRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    The rule would affect all fishing in the EEZ that is managed under 
the FMP for Spiny Lobster in the Gulf and South Atlantic. Landings of 
spiny lobster occur predominantly in the Florida Keys (Monroe County) 
and elsewhere in south Florida. Relatively small (mostly confidential) 
amounts have been reported for other Gulf and South Atlantic states 
since 1977. Fishing for spiny lobster in Florida is managed 
cooperatively by the Councils and the state of Florida, which collects 
the data used to analyze the activity. Including fishing in Federal and 
state waters, the numbers of commercial vessels, commercial trips, and 
Florida spiny lobster trap landings, traps with commercial landings of 
spiny lobster in Florida have all declined substantially since the 
implementation of Florida's Trap Certificate Program in the early 
1990's, and productivity (CPUE) has increased.
    Businesses directly affected by the proposed rule include those 
engaged in commercial shellfish harvesting (NAICS code 114112) and for-
hire fishing (NAICS code 713990), and they meet the respective Small 
Business Administration (SBA) criteria for being small businesses. 
Commercial and for-hire fishing vessels that fish for spiny lobster in 
state and Federal waters off Florida must meet applicable Florida 
permitting requirements. An estimated 781 vessels landed spiny lobster 
commercially in Florida, on average, in the last 5 years. This includes 
274 vessels (1,977 trips) with landings from the EEZ off Florida, where 
an estimated 35 vessels (130 trips) landed both tailed and whole 
lobsters on the same trips.

[[Page 59105]]

On average, these 35 vessels have fewer, but longer trips, higher trip 
landings, haul more traps per trip, and they fish at greater depths. 
Another 23 vessels landed slipper lobster in Florida during that time. 
While the number of for-hire vessels that fish for spiny lobster in the 
EEZ off Florida is not known, it is likely that less than the 1,330 
vessels that currently have the necessary Florida permits and licenses 
engage in for-hire fishing for spiny lobster in state and Federal 
waters. None of these for-hire vessels are believed to have State 
commercial fishing permits/licenses. The for-hire vessels target other 
species as well, because annual recreational landings of spiny lobster 
occur predominantly in late July through the first week of September.
    The majority of the actions in this proposed rule are either 
administrative in nature or would be expected to accommodate status quo 
harvests or fishing behavior. The possible exception to this 
determination is the proposed action relative to the possession and 
landing of tailed lobsters in or from the EEZ. Available data do not 
allow the quantification of the number of vessels that may be affected 
by this proposed action. Approximately 35 vessels with commercial 
landings from the EEZ landed both tailed and whole lobsters on the same 
trips. The effect on these vessels of the requirement to land either 
all tailed or all whole lobsters on one trip is not known. The proposed 
action may be a problem for for-hire vessels with a limited holding 
capacity. It is believed that some for-hire vessels may have been 
tailing lobsters during trips. The solution for these vessels may 
simply be the purchase of additional ice chests to store harvested 
lobster. However, while this proposed action may be limiting for some 
for-hire vessels, this would not be expected to be a problem, on 
average, for the for-hire fleet because the majority of vessels would 
not be expected to engage in the practice of landing tailed lobsters, 
or depend on this type of business for a significant portion of their 
revenues. As a result, the actions in this rule would not be expected 
to significantly reduce profits for a substantial number of small 
entities. Public comment, however, is requested on this determination 
because of the absence of data related to the potential effects of the 
proposed action on the possession and landing of tailed lobsters from 
the EEZ.
    Alternatives were considered regarding species other than Caribbean 
spiny lobster (spiny lobster) in the FMP, and the proposed action would 
remove the other four lobster species from the FMP. None of the 
alternatives would be expected have an economic impact on small 
entities because these species addressed are either not currently 
managed or are not significantly harvested. One alternative, the no-
action alternative, would not meet the requirements of the Magnuson-
Stevens Act because three species would have remained in the FMP for 
data collection purposes only without the specification of ACLs and AMs 
(which is no longer allowed under the Magnuson-Stevens Act). The other 
alternatives were not selected as preferred alternatives because the 
Councils determined that these species no longer required management at 
the Federal level because protection at the state level was adequate.
    Among the alternatives considered for the action to set ACLs, the 
proposed action specifies a single (stock) ACL, whereby ACL = OY = ABC. 
The no-action alternative would not meet Magnuson-Stevens Act 
requirements. The remaining alternatives to the proposed action would 
specify higher or lower ACLs, with each alternative specifying either a 
single ACL for the entire fishery or sector specific ACLs, one ACL for 
the commercial sector, and another ACL for the recreational sector. 
Alternatives that would have resulted in sector ACLs were not selected 
because the adoption of sector ACLs would have been inconsistent with 
the decision to not adopt allocation ratios for the sectors. Among the 
alternatives that would establish stock ACLs, the proposed action would 
be expected to result in the greatest economic benefits because it 
would allow the greatest total harvest and support more recreational 
trips and commercial revenues without compromising the health of the 
resource or jeopardizing future economic benefits.
    Several alternatives, including the no-action alternative, were 
considered for the action to set ACTs. The proposed action specifies an 
ACT which is less than the ACL. Although an ACT is not a required 
component of an FMP and the absence of an ACT would allow a harvest up 
to the level of the ACL, the no-action alternative was not selected 
because the Councils decided that an ACT was appropriate for this stock 
due to the uncertainty associated with harvest monitoring, particularly 
recreational landings. Similar to the action to specify the ACL, the 
remaining five alternatives to the proposed action would specify 
different ACTs, with each alternative specifying either a single ACT 
for the entire fishery or sector specific ACTs, one ACT for the 
commercial sector, and another ACT for the recreational sector. The 
alternatives that would have resulted in sector ACTs were not adopted 
because the adoption of sector ACTs would have been inconsistent with 
the decision to not select allocation ratios or ACLs for the sectors. 
Among the alternatives that would not establish sector ACTs, other than 
the no-action alternative, the proposed action would be expected to 
result in the greatest economic benefits because it would allow the 
greatest total harvest and support more recreational trips and 
commercial revenues.
    Several alternatives, including the no-action alternative, were 
considered for the action to establish AMs. The no-action alternative 
would not meet the Magnuson-Stevens Act requirement to establish AMs. 
The proposed action would establish the ACT as the AM for the spiny 
lobster stock. With the exception of the no-action alternative and an 
option to establish combined sector AMs, the alternatives to the 
proposed action would be inconsistent with the adoption of other 
actions in this proposed rule. Absent sector allocations, ACLs, and 
ACTs, the adoption of sector AMs would be inappropriate. Further, 
adjustment of sector seasons is not practical in the absence of sector 
ACLs or ACTs. The option that would establish combined sector AMs was 
not adopted because the Councils felt the proposed action would provide 
an adequate buffer between the target level of harvest and the annual 
limit on harvest.
    Among the alternatives, including the no-action alternative, 
considered to establish the framework procedure, the proposed action 
incorporates two of the alternatives, updating the current protocol for 
cooperative management and revising the current regulatory amendment 
procedures by adopting the base framework procedure. The no-action 
alternative was not selected because the current protocol is out of 
date with respect to terminology and relevant agency names and 
authorities, and the framework procedures are not consistent with 
current assessment and management methods. The proposed action would 
facilitate implementation of changes in management measures required 
under the Magnuson-Stevens Act, such as changes in ACLs, ACTs, and AMs. 
Two of the remaining alternatives to the proposed action were not 
selected because they could result in a delay in the implementation of 
necessary changes to the FMP. Such delays would be expected to impede 
the effective and efficient management of the stock. The final 
alternative to the proposed action was not adopted because it would 
have given the Councils and NMFS too much

[[Page 59106]]

discretion to change management outside of the plan amendment process.
    Five alternatives, including the no-action alternative, were 
considered for the action to revise the regulations regarding 
undersized spiny lobsters. The proposed action would allow undersized 
spiny lobster not exceeding 50 per vessel and 1 per trap aboard each 
vessel if used in the EEZ exclusively for luring, decoying, or 
otherwise attracting non-captive spiny lobsters into the trap. The 
proposed action would be expected to result in an unquantifiable 
increase in economic benefits to spiny lobster fishermen relative to 
the status quo. The other alternatives, including the no-action 
alternative, were not selected because they would not be consistent 
with Florida regulations and would result in greater restrictions on 
the possession of undersized spiny lobsters used as attractants. As a 
result, each of these alternatives would be expected to result in lower 
economic benefits than the proposed action.
    Four alternatives, including the no-action alternative, were 
considered for the action to modify tailing requirements. Two of the 
alternatives are included in the proposed action, which would require 
that all lobsters from the EEZ be landed either all whole or all tailed 
on a single trip, and require that vessels applying for a Federal 
tailing permit must have either the requisite Florida permits/licenses 
for commercial fishing for lobster or a Federal spiny lobster permit. 
The no-action alternative was not selected because the Federal tailing 
permit was originally intended to allow tailing by commercial fishermen 
on long trips but, instead, current regulatory language has allowed 
recreational fishermen to obtain the permit, contrary to the Councils' 
original intent. The remaining alternative to the proposed action would 
prohibit any Federal lobster tail-separation permits and was not 
selected because it would be expected to result in greater economic 
losses than the proposed action.
    Six alternatives, including the no-action alternative, were 
considered for the action to designate authority to remove derelict 
spiny lobster traps in the EEZ off Florida. The no-action alternative 
was not selected because it would not allow the removal of derelict 
traps, and would not, therefore, be consistent with the Council's 
objective to limit the amount of derelict spiny lobster gear in the EEZ 
off Florida. This proposed rule would authorize the removal of traps in 
Federal waters off Florida through Florida's trap cleanup program, as 
provided in existing Florida regulations, and would be expected to have 
the least economic impact on small entities, based on public comment 
provided by commercial fishermen. The other alternatives to the 
proposed action would allow the public to remove derelict traps, or 
portions thereof, during different portions of the closed season. 
Assuming such authority only resulted in the removal of derelict traps, 
and not licensed and appropriate lobster traps, none of the 
alternatives to the proposed action, other than the no-action 
alternative, would be expected to adversely affect ongoing activity in 
the commercial sector during the commercial open season because, by 
definition, the removed traps would no longer be part of an active 
business operation. The no-action alternative would also not be 
expected to affect ongoing commercial activity because derelict trap 
removal by the public would not be allowed. The proposed action was 
selected by the Councils to allow the traps to be removed through an 
existing, coordinated, and well-managed Florida program.
    Additional actions and alternatives were considered in the 
amendment but are not included in this proposed rule because they would 
either establish management reference points or the preferred action 
would not result in any regulatory change. These actions and 
alternatives are discussed in the following paragraphs.
    Alternative definitions for maximum sustainable yield, the 
overfishing threshold, and the overfished threshold and other 
biological parameters for spiny lobster were considered. The respective 
alternatives proposed by the Councils are intended to bring the FMP 
into compliance with requirements of the Magnuson-Stevens Act, and are 
based on SSC recommendations. Defining these biological parameters for 
a species does not alter the current harvest or use of the resource. 
Therefore, no economic impact on small entities would be expected to 
result from the specification of these management parameters.
    Among the alternatives considered by the Councils to establish 
sector allocations, the no-action alternative was adopted as the 
proposed action. The other alternatives would specify allocations that 
would have varying effects determined by the combination of 
alternatives used to specify allocations, ABC, ACL, OY, and ACT. The 
result is that some single (stock) or paired-set (sector) ACLs were 
greater than or less than the respective status-quo landings. Any 
scenario where allowable landings would be reduced would be expected to 
result in a reduction in economic benefits to the respective affected 
sector. The Councils concluded that it was best to manage the spiny 
lobster fishery without allocations between the recreational and 
commercial sectors because no mechanism currently exists to track 
recreational landings and the commercial trip ticket data are not 
compiled with sufficient speed to support in-season quota monitoring.
    Among the alternatives to specify an ABC control rule, the proposed 
action specifies the Gulf Council's SSC recommended ABC Control Rule. 
The no-action alternative and two other alternatives (for which the ABC 
exceeded that recommended by the SSC) would not meet Magnuson-Stevens 
Act guidance that an ABC control rule be used to set the ABC and that 
the SSC recommend the ABC to the Council. Each of the other 
alternatives to the proposed action would specify a lower ABC. Because 
specifying an ABC control rule is an administrative action, no direct 
economic effects on any small entities would be expected to result from 
any of these alternatives. The proposed action was adopted because it 
would be consistent with decisions made for other species managed by 
the Councils and would provide a statistically based method of setting 
ABC, even if a new stock assessment changed the status of the stock. 
Further, the remaining alternatives, other than the no action 
alternative, were not adopted because they would not allow for changes 
to the ABC based on subsequent stock assessments.
    Including the no-action alternative, four alternatives were 
considered for the action to limit spiny lobster fishing to certain 
areas in the EEZ off Florida to protect threatened staghorn and elkhorn 
corals. Each of the alternatives to the proposed action would increase 
the restrictions on where spiny lobster fishing could occur relative to 
the status quo. As a result, each of these alternatives would be 
expected to result in adverse economic effects to spiny lobster 
fishermen relative to the status quo. The no action alternative was 
adopted as the proposed action in order to allow more public input 
before taking additional action and this action will be re-addressed in 
a subsequent amendment to the FMP.
    Three alternatives, including the no-action alternative, were 
considered for the action to require gear markings on all lobster trap 
lines used in the EEZ off Florida. Each of the alternatives to the 
proposed action would impose new gear marking requirements and, as a 
result, each of these alternatives would be expected to result in 
adverse economic effects to spiny lobster fishermen

[[Page 59107]]

relative to the status quo. The no action alternative was adopted as 
the proposed action in order to allow for more public input before 
taking additional action and this action will be re-addressed in a 
subsequent amendment to the FMP.

List of Subjects

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

50 CFR Part 640

    Fisheries, Fishing, Incorporation by reference, Reporting and 
recordkeeping requirements.

    Dated: September 20, 2011.
 John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 622 and 640 
are proposed to be amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

    Authority:  16 U.S.C. 1801 et seq.

    2. In Sec.  622.2, the definition for ``Caribbean spiny lobster'' 
is removed and the definition for ``Caribbean spiny lobster or spiny 
lobster'' is added in alphabetical order to read as follows.


Sec.  622.2  Definitions and acronyms.

* * * * *
    Caribbean spiny lobster or spiny lobster means the species 
Panulirus argus, or a part thereof.
* * * * *
    3. In Sec.  622.6, a sentence is added to the end of paragraph 
(b)(1)(iv) to read as follows:


Sec.  622.6  Vessel and gear identification.

* * * * *
    (b) * * *
    (1) * * *
    (iv) * * * In the EEZ off Florida, during times other than the 
authorized fishing season, a Caribbean spiny lobster trap, buoy, or any 
connecting lines will be considered derelict and may be disposed of in 
accordance with Rules 68B-55.002 and 68B-55.004 of the Florida 
Administrative Code.
* * * * *

PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH 
ATLANTIC

    4. The authority for part 640 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq.

    5. In Sec.  640.1, the first sentence of paragraph (b) is revised 
to read as follows:


Sec.  640.1  Purpose and scope.

* * * * *
    (b) This part governs the conservation and management of Caribbean 
spiny lobster (spiny lobster) in the EEZ in the Atlantic Ocean and Gulf 
of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/
North Carolina border south and through the Gulf of Mexico. * * *
* * * * *
    6. In Sec.  640.2, the definitions for ``slipper (Spanish) 
lobster'' and ``spiny lobster'' are removed and the definition for 
``Caribbean spiny lobster or spiny lobster'' is added in alphabetical 
order to read as follows:


Sec.  640.2  Definitions and acronyms.

* * * * *
    Caribbean spiny lobster or spiny lobster means the species 
Panulirus argus, or a part thereof.
* * * * *
    7. In Sec.  640.4, paragraphs (a)(1)(i) and (a)(2) are revised to 
read as follows:


Sec.  640.4  Permits and fees.

    (a) * * *
    (1) * * *
    (i) EEZ off Florida and spiny lobster landed in Florida. For a 
person to sell, trade, or barter, or attempt to sell, trade, or barter, 
a spiny lobster harvested or possessed in the EEZ off Florida, or 
harvested in the EEZ other than off Florida and landed from a fishing 
vessel in Florida, or for a person to be exempt from the daily bag and 
possession limit specified in Sec.  640.23(b)(1) for such spiny 
lobster, such person must have the licenses and certificates specified 
to be a ``commercial harvester,'' as defined in Rule 68B-24.002, 
Florida Administrative Code, in effect as of July 1, 2008. This 
incorporation by reference was approved by the Director of the Office 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Copies may be obtained from the Florida Division of Marine 
Fisheries Management, 620 South Meridian Street, Tallahassee, FL 32399; 
telephone: 850-488-4676. Copies may be inspected at the Office of the 
Regional Administrator; the Office of Sustainable Fisheries, NMFS, 1315 
East-West Highway, Silver Spring, MD; or the Office of the Federal 
Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
* * * * *
    (2) Tail-separation permits. For a person to possess aboard a 
fishing vessel a separated spiny lobster tail in or from the EEZ as 
defined in Sec.  640.1 (b), a valid Federal tail-separation permit must 
be issued to the vessel and must be on board. Permitting prerequisites 
for the tail-separation permit are either a valid Federal vessel permit 
for spiny lobster or a valid Florida Saltwater Products License with a 
valid Florida Restricted Species Endorsement and a valid Crawfish 
Endorsement.
* * * * *
    8. In Sec.  640.6, paragraphs (a) and (c) are revised to read as 
follows:


Sec.  640.6  Vessel and gear identification.

    (a) EEZ off Florida. (1) An owner or operator of a vessel that is 
used to harvest spiny lobster by traps in the EEZ off Florida must 
comply with the vessel and gear identification requirements specified 
in sections 379.367(2)(a)1. and 379.367(3), Florida Statutes, in effect 
as of July 1, 2009, and in Rule 68B-24.006(3), (4), and (5), Florida 
Administrative Code, in effect as of July 1, 2008.
    (2) An owner or operator of a vessel that is used to harvest spiny 
lobsters by diving in the EEZ off Florida must comply with the vessel 
identification requirements applicable to the harvesting of spiny 
lobsters by diving in Florida's waters in Rule 68B-24.006(6), Florida 
Administrative Code, in effect as of July 1, 2008.
    (3) The incorporation by reference in paragraphs (a)(1) and (a)(2) 
of this section of sections 379.367(2)(a)1. and 379.367(3), Florida 
Statutes, Rule 68B-24.006(3), (4), and (5), and (6) Florida 
Administrative Code, was approved by the Director of the Office of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
Copies may be obtained from the Florida Division of Marine Fisheries 
Management, 620 South Meridian Street, Tallahassee, FL 32399; 
telephone: 850-488-4676. Copies may be inspected at the Office of the 
Regional Administrator; the Office of Sustainable Fisheries, NMFS, 1315 
East-West Highway, Silver Spring, MD; or the Office of the Federal 
Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
* * * * *
    (c) Unmarked traps and buoys. An unmarked spiny lobster trap or 
buoy in the EEZ is illegal gear.
    (1) EEZ off Florida. Such trap or buoy, and any connecting lines, 
during times other than the authorized fishing season, will be 
considered derelict and may be disposed of in accordance with Rules 
68B-55.002 and 68B-55.004 of the Florida Administrative Code. An owner 
of such trap or buoy remains subject to appropriate civil penalties.

[[Page 59108]]

    (2) EEZ other than off Florida. Such trap or buoy, and any 
connecting lines, will be considered unclaimed or abandoned property 
and may be disposed of in any manner considered appropriate by the 
Assistant Administrator or an authorized officer. An owner of such trap 
or buoy remains subject to appropriate civil penalties.
    9. In Sec.  640.7, paragraph (g) is revised to read as follows:


Sec.  640.7  Prohibitions.

* * * * *
    (g) Fail to return immediately to the water a berried spiny 
lobster; strip eggs from or otherwise molest a berried spiny lobster; 
or possess a spiny lobster, or part thereof, from which eggs, 
swimmerettes, or pleopods have been removed or stripped; as specified 
in Sec.  640.21(a).
* * * * *
    10. In Sec.  640.20, paragraph (b)(3)(iii) is removed, and 
paragraph (b)(3)(i) is revised and two sentences are added at the end 
of paragraph (b)(3)(ii) to read as follows:


Sec.  640.20  Seasons.

* * * * *
    (b) * * *
    (3) * * *
    (i) In the EEZ off Florida, the rules and regulations applicable to 
the possession of spiny lobster traps in Florida's waters in Rule 68B-
24.005(3), (4), and (5), Florida Administrative Code, in effect as of 
June 1, 1994, apply in their entirety to the possession of spiny 
lobster traps in the EEZ off Florida. This incorporation by reference 
was approved by the Director of the Office of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
obtained from the Florida Division of Marine Fisheries Management, 620 
South Meridian Street, Tallahassee, FL 32399; telephone: 850-488-4676. 
Copies may be inspected at the Office of the Regional Administrator; 
the Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, 
Silver Spring, MD; or the Office of the Federal Register, 800 North 
Capitol Street, NW., Suite 700, Washington, DC. A spiny lobster trap, 
buoy, or rope in the EEZ off Florida, during periods not authorized in 
this paragraph will be considered derelict and may be disposed of in 
accordance with Rules 68B-55.002 and 68B-55.004 of the Florida 
Administrative Code. An owner of such trap, buoy, or rope remains 
subject to appropriate civil penalties.
    (ii) * * * A spiny lobster trap, buoy, or rope in the EEZ off the 
Gulf states, other than Florida, during periods not authorized in this 
paragraph (b)(3) will be considered unclaimed or abandoned property and 
may be disposed of in any manner considered appropriate by the 
Assistant Administrator or an authorized officer. An owner of such 
trap, buoy, or rope remains subject to appropriate civil penalties.
* * * * *
    11. In Sec.  640.21, paragraph (a), the second sentence of 
paragraph (c), and paragraph (d) are revised to read as follows:


Sec.  640.21  Harvest limitations.

    (a) Berried lobsters. A berried (egg-bearing) spiny lobster in or 
from the EEZ must be returned immediately to the water unharmed. If 
found in a trap in the EEZ, a berried spiny lobster may not be retained 
in the trap. A berried spiny lobster in or from the EEZ may not be 
stripped of its eggs or otherwise molested. The possession of a spiny 
lobster, or part thereof, in or from the EEZ from which eggs, 
swimmerettes, or pleopods have been removed or stripped is prohibited.
* * * * *
    (c) Undersized attractants. * * * No more than fifty undersized 
spiny lobsters and one per trap aboard the vessel, may be retained 
aboard for use as attractants. * * *
    (d) Tail separation. (1) The possession aboard a fishing vessel of 
a separated spiny lobster tail in or from the EEZ as defined in Sec.  
640.1 (b), is authorized only when the possession is incidental to 
fishing exclusively in the EEZ on a trip of 48 hours or more and a 
valid Federal tail-separation permit, and either a valid Federal vessel 
permit for spiny lobster or a valid Florida Saltwater Products License 
with a valid Florida Restricted Species Endorsement and a valid 
Crawfish Endorsement, as specified in Sec.  640.4(a)(2), has been 
issued to and are on board the vessel.
    (2) Spiny lobster must be landed either all whole or all tailed on 
a single fishing trip.
    12. In Sec.  640.22, paragraphs (a)(3) and (b)(3)(i) are revised to 
read as follows:


Sec.  640.22  Gear and diving restrictions.

    (a) * * *
    (3) Poisons and explosives may not be used to take a spiny lobster 
in the EEZ as defined in Sec.  640.1 (b). For the purposes of this 
paragraph (a)(3), chlorine, bleach, and similar substances, which are 
used to flush a spiny lobster out of rocks or coral, are poisons. A 
vessel in the spiny lobster fishery may not possess on board in the EEZ 
any dynamite or similar explosive substance.
* * * * *
    (b) * * *
    (3) * * *
    (i) For traps in the EEZ off Florida, by the Division of Law 
Enforcement, Florida Fish and Wildlife Conservation Commission, in 
accordance with the procedures in Rule 68B-24.006(7), Florida 
Administrative Code, in effect as of July 1, 2008. This incorporation 
by reference was approved by the Director of the Office of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the Florida Division of Marine Fisheries 
Management, 620 South Meridian Street, Tallahassee, FL 32399; 
telephone: 850-488-4676. Copies may be inspected at the Office of the 
Regional Administrator; the Office of Sustainable Fisheries, NMFS, 1315 
East-West Highway, Silver Spring, MD; or the Office of the Federal 
Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
* * * * *
    13. Section 640.25 is revised to read as follows:


Sec.  640.25  Adjustment of management measures.

    In accordance with the framework procedure of the Fishery 
Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and 
South Atlantic, the Regional Administrator may establish or modify the 
following items: reporting and monitoring requirements, permitting 
requirements, bag and possession limits, size limits, vessel trip 
limits, closed seasons, closed areas, reopening of sectors that have 
been prematurely closed, annual catch limits (ACLs), annual catch 
targets (ACTs), quotas, accountability measures (AMs), maximum 
sustainable yield (or proxy), optimum yield, total allowable catch 
(TAC), management parameters such as overfished and overfishing 
definitions, gear restrictions, gear markings and identification, 
vessel identification requirements, allowable biological catch (ABC) 
and ABC control rule, rebuilding plans, and restrictions relative to 
conditions of harvested fish (such as tailing lobster, undersized 
attractants, and use as bait).
    14. Add Sec.  640.28 to subpart B to read as follows:


Sec.  640.28  Annual catch limits (ACLs) and accountability measures 
(AMs).

    For recreational and commercial spiny lobster landings combined, 
the ACL is 7.32 million lb (3.32 million kg), whole weight. The ACT is 
6.59 million lb, (2.99 million kg) whole weight.

[FR Doc. 2011-24550 Filed 9-22-11; 8:45 am]
BILLING CODE 3510-22-P