[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Proposed Rules]
[Pages 71501-71509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29845]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No.110722404-1405-01 ]
RIN 0648-BA56


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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 new Federal American lobster regulations that 
would limit entry into the lobster trap fishery in Lobster Conservation 
Management Area 1 (Federal inshore waters-Gulf of Maine). Upon 
qualification, permit holders would be allowed to fish in Area 1 with 
up to 800 lobster traps. The proposed limited entry program responds to 
the recommendations for Federal action in the Atlantic States Marine 
Fisheries Commission's (Commission) Interstate Fishery Management Plan 
for American Lobster.

DATES: We must receive your comments no later than 5 p.m. eastern 
standard time on January 3, 2012.
    You may submit comments on this document, identified by NOAA-NMFS-
2011-0234, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0234 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Mail: Submit written comments to: Robert Ross, Supervisory 
Fishery Policy Analyst, Sustainable Fisheries Division, NMFS, 55 Great 
Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on Lobster Area 1 Proposed Rule.''
     Fax: (978) 281-9135; Attn: Robert Ross
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only. You may obtain copies of the draft Environmental 
Assessment (EA), including the Regulatory Impact Review (RIR) and the 
Initial Regulatory Flexibility Analysis (IRFA), prepared for this 
action at the mailing address specified above; telephone (978) 675-
2162. The documents are also available online at http://www.nero.noaa.gov.
    You may submit written comments regarding the burden-hour estimates 
or

[[Page 71502]]

other aspects of the collection-of-information requirements contained 
in this proposed rule to the mailing address listed above and by email 
to [email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Policy Analyst, 
phone (978) 675-2162, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    The proposed regulations would modify Federal lobster fishery 
management measures in the Exclusive Economic Zone (EEZ) under the 
authority of section 803(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (Atlantic Coastal Act) 16 U.S.C. 5101 et 
seq., which states, in the absence of an approved and implemented 
Fishery Management Plan under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, 
after consultation with the appropriate Fishery Management Council(s), 
the Secretary of Commerce may implement regulations to govern fishing 
in the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. The 
regulations must be (1) compatible with the effective implementation of 
an Interstate Fishery Management Plan (ISFMP) developed by the 
Commission and (2) consistent with the national standards set forth in 
section 301 of the Magnuson-Stevens Act.

Purpose and Need for Management

    The purpose of the proposed action is to manage the American 
lobster fishery in a manner that maximizes resource sustainability, 
recognizing that Federal management occurs in consort with state 
management. To achieve this purpose, NMFS needs to respond to recently-
approved state management measures that control effort within the 
lobster fishery. Specifically, the Commission's ISFMP seeks to limit 
entry into the Area 1 lobster trap fishery. Of the seven Lobster 
Conservation Management Areas (LCMAs, Areas) only Area 1 remains open 
and accessible to all Federal lobster permit holders. Commissioners and 
Area 1 permit holders alike are concerned that restrictions in these 
other LCMAs could cause a shift of trap fishing effort into Area 1, 
potentially flooding Area 1 with new fishers, upsetting local lobster 
stock stability, frustrating rebuilding efforts, and undermining 
existing social and cultural lobster fishing traditions in Area 1.

Background

    American lobsters are managed within the framework of the 
Commission. The Commission serves to develop fishery conservation and 
management strategies for certain coastal species and coordinates the 
efforts of the states and Federal Government toward concerted 
sustainable ends. The Commission, under the provisions of the Atlantic 
Coastal Act, decides upon a management strategy as a collective and 
then forwards that strategy to the states and Federal Government, along 
with a recommendation that the states and Federal Government take 
action (e.g., enact regulations) in furtherance of this strategy. The 
Federal Government is obligated by statute to support the Commission's 
ISFMP and overall fishery management efforts (See Statutory Authority). 
Consistent with these requirements, NMFS proposes the foregoing rule to 
address the potential for increased lobster trap fishing effort in Area 
1 which would support the Commission's ISFMP.
    Area 1, the most productive lobster management area with respect to 
landings, is within the Gulf of Maine stock area. The most recent 
lobster stock assessment (2009) indicated that Gulf of Maine lobster 
stock abundance is relatively high, with stable levels of fishing 
mortality. Despite favorable conditions, the stock assessment cautioned 
that unchecked trap fishing effort in Area 1 could negatively impact 
the sustainability of the Gulf of Maine lobster fishery if lobster 
abundance declined to long-term median levels.
    At this same time, lobster managers and Area 1 lobster fishers 
became aware that trap fishing effort in Area 1 was indeed relatively 
unchecked. Some fishers provided anecdotal evidence that Area 1 Federal 
waters fishing effort might be on the increase. Specifically, the Area 
1 Lobster Conservation Management Team (LCMT), an advisory group 
comprised of lobster fishermen, worried that limited access programs in 
the other lobster management areas might cause, and perhaps were 
already causing, non-qualifiers to move their businesses into Area 1--
the only remaining non-limited access area. The Area 1 LCMT recommended 
that the Commission limit access to the trap fishery in Area 1 Federal 
waters to those fishers who could document having fished there with 
trap gear in the past. The Area 1 LCMT worried that speculators would 
newly declare into Area 1 upon hearing the news and, therefore, the 
LCMT recommended establishing an immediate control date after which 
fishing history could not be credited towards qualification.
    The Commission agreed with the scientists and LCMT that a potential 
shift of trap fishing effort into Area 1 could jeopardize the 
sustainability of the Gulf of Maine lobster stock and Area 1 fishery 
and, consequently, the Commission's Lobster Board began to develop, in 
2008, Addendum XV to Amendment 3 of the ISFMP. Addendum XV and 
Amendment 3 are available at the Commission's Web site at http://www.asmfc.org. Addendum XV intends to control lobster trap fishing 
effort by limiting the transfer of Federal lobster permits into Area 1 
from other areas and from the non-trap fishery.
    As the Commission developed Addendum XV in October 2008, they asked 
NMFS to immediately publish a control date to prevent speculators from 
flooding into Area 1. On January 2, 2009, NMFS published an Advance 
Notice of Proposed Rulemaking (ANPR) in the Federal Register (74 FR 67) 
to notify the public that any further investment in the Area 1 trap 
fishery may not guarantee future access if a limited entry program is 
implemented and to solicit public comments on the issue (See Comments 
and Responses). Knowing that Federal action would be needed to restrict 
the migration of Federal lobster permits into Area 1, the Commission 
adopted the publication date of the ANPR (January 2, 2009) as a control 
date for determination of Area 1 eligibility.
    The Commission approved Addendum XV in November 2009 after 
receiving public input in numerous public meetings. In Addendum XV, the 
Commission recommended an Area 1 limited access program with the 
following three eligibility criteria: (1) Possession of a Federal 
limited access lobster permit; (2) proof of an Area 1 designation on 
the Federal lobster permit as of the January 2, 2009, control date; 
and, (3) proof of purchase of an Area 1 lobster trap tag during any 
year from 2004-2008, inclusive. Addendum XV did not recommend making 
any change to the trap cap in Area 1, currently set at 800 traps.

Proposed Changes to the Current Regulations

    NMFS proposes to limit access into the Federal Area 1 lobster trap 
fishery using qualification criteria similar to those recommended by 
the Area 1 LCMT and by the Commission's Lobster Board in Addendum XV. 
The most recent stock assessment warned that unbridled effort in Area 1 
could jeopardize the sustainability of the stock if lobster abundance 
fell to more normal

[[Page 71503]]

levels. If such an event occurred, NMFS would be in less of a position 
to provide an immediate and decisive response, given the lengthy 
rulemaking apparatus available. Consequently, NMFS believes it most 
prudent to heed the scientists' advice and proactively respond to the 
issue before the situation becomes critical.
    The timing of this proposed rule is also appropriate given the 
limited access programs currently being implemented in other lobster 
management areas. Specifically, lobster trap fishing access was 
recently limited in the state waters of Area 2 and the Outer Cape Cod 
Area, and NMFS is presently developing a rule that could limit trap 
fishing access in the Federal waters of those areas as well. Trap 
fishing access to Areas 3, 4, 5 and 6 is already restricted in both 
state and Federal waters. Accordingly, to the extent that a lobster 
permit did not qualify for trap fishing access in any of those other 
areas, there is potentially great incentive for that permit to be sold 
into Area 1--that last remaining area without access limitations--where 
it could be used to fish with traps, thus proliferating effort in the 
area. Area 1 lobster fishers were greatly concerned by such a scenario, 
as was the Commission. Our analysis of the data suggests that the 
feared effort shift into Area 1 has probably not yet occurred, but that 
the potential for such an effort shift certainly exists.
    NMFS therefore agrees with the scientists, the industry-based Area 
1 LCMT, and the Commission that effort control is needed in Area 1 to 
protect the stock. This proposed rule does so by seeking to limit 
further effort into Area 1 in the manner recommended by the industry-
based Area 1 LCMT and Commission. Additionally, this proposed rule 
would not change the 800-trap cap in Area 1, which is consistent with 
Commission Addendum XV.
    This proposed rule differs from the Commission's Addendum XV 
recommendation only in that it would extend the qualification period 
cut-off date from January 2, 2009, to April 30, 2009. The April 30 date 
makes sense because it coincides with the Federal lobster fishing year 
(May 1, 2008, through April 30, 2009) and because it provides added 
months for those permit holders who were in the process of conducting 
business prior to the January 2, 2009, control date to have settled 
their affairs and renewed their Federal lobster permits during the 
normal course of the Federal fishing year. In other words, the proposed 
action would qualify the Federal lobster permits that were renewed at 
any time during the 2008 fishing year that had an Area 1 trap gear 
designation and a record of purchasing one or more trap tags during any 
one year from 2004 through 2008. This slight extension in the 
qualification period remains consistent with the Commission's overall 
recommendation and would result in negligible additional impact because 
our analysis suggests that speculation did not occur during this time 
period as originally feared. Accordingly, despite the slight 
differences in the qualification period compared to the Commission's 
criteria, NMFS expects that this proposed rule would be supported by 
the stock assessment scientists, the Area 1 lobster industry and the 
Commission's Lobster Board because it would reflect the full complement 
of 2008 Federal Area 1 permit holders with recent trap tag purchases.
    NMFS assessed the impacts of this action in a preliminary 
Environmental Assessment (EA) pursuant to the National Environmental 
Policy Act. The EA, based predominantly on Federal vessel permit data 
and state and Federal trap tag records, shows that 1,643 Federal 
lobster permits would likely qualify under the proposed action. Of this 
total, approximately 32 qualifiers would benefit from the proposed 
extension of the qualification cut-off date from January 2, 2009, to 
April 30, 2009. In other words, if NMFS adopted the January 2, 2009, 
control date originally recommended by the Commission, approximately 
1,611 permit holders would qualify, 32 less than would qualify under 
the extended qualification date in this proposed action. Our analysis 
suggests that these 32 individuals do not represent new effort (the 
majority of these individuals have fished with traps in Area 1 in the 
past) and the relative additional effort from these 32 permits holders 
is negligible when compared to the overall level of trap fishing effort 
in Area 1.
    Of the 3,152 Federal lobster permits in existence, NMFS analysis 
suggests that 1,509 permit holders would likely not qualify into the 
Area 1 trap fishery (calculated at 3,152 total permit holders minus the 
1,643 permit holders expected to qualify). Of this 1,509 total, the 
vast majority (1,419 permit holders) are from locales south of Area 1 
waters and/or have never sought to fish with traps in Area 1 in the 
past.
    For the vast majority of current Area 1 permit holders, NMFS 
already has the necessary documentation to show that the permit meets 
the eligibility requirements for Area 1. In such cases, we will notify 
those Area 1 permit holders, on or around the time when they receive 
their annual permit renewal paperwork, that they are pre-qualified into 
the Area 1 trap fishery. Those pre-qualified permit holders will need 
to simply confirm their intent to qualify their permit for the Area 1 
trap fishery by signing a pre-printed application form and sending it 
back to NMFS by a specified date. Once we receive the application, we 
will confirm that the permit meets the eligibility requirements and 
inform the permit holder in writing that the permit has officially 
qualified for the Area 1 trap fishery.
    Permit holders who do not pre-qualify will be notified that NMFS 
does not have information on hand to show that the permit meets the 
eligibility criteria. Permit holders in this category who wish to 
qualify their permit for Area 1 will need to submit the signed pre-
printed application form provided to them by NMFS. In addition, the 
application package must include documentary proof to show that the 
permit meets the eligibility criteria. Specifically, to show that the 
vessel has a current Federal limited access lobster permit, they must 
provide a copy of the current Federal lobster permit or such data that 
would allow NMFS to identify the permit in its database (such as the 
applicant's name, address, vessel name and permit number). To show that 
the permit had a valid Area 1 designation during the 2008 fishing year, 
the applicant must include a copy of the 2008 permit exhibiting the 
Area 1 designation or such information to allow NMFS to identify the 
permit in its database as previously explained. Third, as proof that 
the permit purchased trap tags in any year from 2004-2008, the 
applicant must provide documentation created during the 2004-2008 trap 
tag purchase period from the trap tag vendor or from the state or 
Federal Government affirming the purchase of the tags (See the 
Regulatory Text for details).
    We will review the applications and supporting documentation and 
make a ruling on each permit's eligibility. Those who apply and are 
denied eligibility may appeal to the Regional Administrator within 45 
days of the date of the determination of ineligibility. An appeal will 
be approved only when there is clear and convincing evidence that NMFS 
erred clerically in concluding that the permit did not qualify. The 
Regional Administrator may authorize a vessel pending appeal to fish 
with traps in Area 1 while the appeal is under review.

[[Page 71504]]

Comments and Responses

    The ANPR published in the Federal Register on January 2, 2009, 
informed the public that NMFS was considering a rule to limit future 
access to the lobster trap fishery in Area 1 and to solicit public 
comments on the issue. The comment period closed on February 2, 2009. 
We received a total of nine comments in response to the ANPR. Four 
respondents were concerned about the loss of their current state 
lobster fishing license; two were concerned that Maine lobster fisher 
apprentices would be unable to obtain a Federal permit; one was 
concerned that the ability to transfer permits would be taken away; one 
wanted to know what documentation would be needed in order to qualify 
for an Area 1 permit; one was concerned about seal and cormorant 
predation on lobsters; one asked for exceptions for fishers who bought 
a vessel holding an American lobster permit, or were in the process of 
transferring a vessel holding an American lobster permit before the 
control date; and one supported the proposal to limit or restrict 
future access to the American lobster trap fishery in the Federal 
waters of Area 1. The specific comments and NMFS's responses are as 
follows:
    Comment 1: Four respondents were concerned that they would lose 
their state lobster fishing license.
    Response: This proposed rule is limited to the qualification of 
vessels carrying Federal lobster permits to fish in the Federal waters 
of Area 1. It does not involve any qualification decision or ruling on 
an individual's state lobster license; therefore, it does not follow 
that individuals would ``lose'' their state lobster permit as a result 
of the proposed Federal qualification process (or at least it is not 
sufficiently clear from the comment to determine how this would occur).
    Comment 2: Two respondents were concerned that apprentice lobster 
fishers would not be able to purchase a Federal lobster permit if this 
proposed rule were approved.
    Response: Under the proposed action, NMFS would determine whether a 
Federal lobster permit will remain eligible to fish for lobster with 
traps in Area 1 based on the permit's fishing history as it pertains to 
the eligibility criteria. It would not alter the current allowances for 
the purchase of a vessel and permit or the transfer of a permit to 
another vessel or entity.
    Comment 3: One respondent feared that the control date would 
effectively eliminate the transfer of permits.
    Response: This proposed rule places no restriction on the transfer 
of Federal lobster permits from one vessel to another. If a Federal 
lobster permit that qualifies for Area 1 under the proposed rule is 
transferred to another vessel, the Area 1 trap eligibility would remain 
part of the permit and would be attributed to the replacement vessel.
    Comment 4: One respondent was concerned that the January 2, 2009, 
control date and forthcoming rule would result in his Federal lobster 
permit being taken away.
    Response: This proposed rule would not take away any Federal 
lobster permits. This proposed rule responds to recommendations made by 
the Commission's Lobster Board and industry-based Area 1 LCMT to 
prevent the expansion of trap fishing effort into the Federal waters of 
Area 1. Those Federal lobster vessels that were actively fishing with 
traps in Area 1 during the 2008 fishing year--meaning that they had a 
valid Area 1 lobster trap permit during the 2008 Federal fishing year 
and purchased a lobster trap tag during any year from 2004 through 
2008--would be allowed to continue to fish there with trap gear in the 
future. Those that do not meet the eligibility criteria would not be 
allowed to fish with traps in the Federal waters of Area 1. But, 
regardless of whether a vessel carrying a Federal permit qualifies to 
fish with traps in Area 1, that Federal vessel would be allowed to 
retain its Federal lobster permit and fish for and possess lobsters 
wherever allowed under Federal regulation, including fishing for 
lobster in Area 1. However, it would not be allowed to fish with trap 
gear in Area 1.
    Comment 5: One respondent asked what documentation would be needed 
in order to qualify for a Federal permit into Area 1.
    Response: The qualifying documentation can be found in the 
BACKGROUND section of this proposed rule. Most of the information is 
available to NMFS through state or Federal records/databases. NMFS has 
access to trap tag data and can determine which vessels qualify. Those 
permit holders would only need to submit an application form and no 
additional supporting documentation would be needed since sufficient 
evidence is already available to NMFS. If NMFS does not have sufficient 
evidence on-hand to pre-qualify a permit, those permit holders would be 
notified and may submit an application including documentation to 
support the eligibility criteria. If a permit is ruled to be ineligible 
for Area 1 access and a case arises where an error occurred, the 
lobster fisher may request an appeal, as described in the Background 
section of this proposed rule.
    Comment 6: One respondent expressed concerns about predation of 
lobsters by seals and cormorants.
    Response: Although there is a recent scientific report by the 
American Lobster Technical Committee dated April 17, 2010, that 
discusses increased natural mortality in shallow waters by some mid-
Atlantic predators whose abundance has increased substantially in the 
last decade, this issue is beyond the scope of the proposed rule.
    Comment 7: Two respondents were against the control date and one 
stated that lobster fishers could not have known of this proposed 
control date or the criteria used to determine who would be eligible 
for a permit.
    Response: Although NMFS cannot speak to the specific circumstances 
of the respondents, the agency can state with certainty that the 
Commission's Area 1 Limited Access Program, including the control date, 
was the subject of much public debate both before and after January 2, 
2009. As a preliminary matter, it was the Area 1 LCMT, which is made up 
of lobstermen from Maine, New Hampshire and Massachusetts (including 
representatives from the Maine Lobstermen's Association, New Hampshire 
Lobstermen's Association and Massachusetts Lobstermen's Association), 
that initially proposed the idea of a limited access program with a 
control date. More specifically, the industry-based Area 1 LCMT had 
numerous public meetings and discussions on the issue and ultimately 
voted on and approved the concept in the summer of 2008. Next, the 
Commission's Lobster Board took the Area 1 LCMT's concept and, after 
public discussion, formally recommended the use of a control date at 
the Lobster Board's October 2008 public meeting. Media coverage of the 
Lobster Board's approval appeared in the Commercial Fisheries News in 
November 2008. NMFS published notice of the control date in the Federal 
Register on January 2, 2009. The Area 1 LCMT and the Commission's 
Lobster Board continued to conduct public meetings on the issue after 
the January 2009 control date publication. Ultimately, the Lobster 
Board adopted the Area 1 Limited Access Plan at a public meeting on 
November 3, 2009, which was also reported in the media. Public comments 
on the specific dates and criteria used were sought and received 
throughout this time period. NMFS, in fact, is proposing to liberalize 
the control date cut-off used in this rule based upon

[[Page 71505]]

information that it has received during this time period in 
consideration of those permit holders who did not renew their 2008 
Federal lobster permits prior to the control date (See Background).
    Comment 8: One respondent asked for exceptions for fishers who 
bought a vessel holding an American lobster permit, or were in the 
process of transferring a vessel before the control date.
    Response: The proposed April 30, 2009, limited entry cut-off date 
attempts to strike a balance between two competing interests: (1) The 
desire to have a cut-off date that is flexible enough to accommodate 
Area 1 fishers who were in the process of transferring permits and 
caught off-guard by the January 2009 control date notice; and, (2) the 
need to have a quick and specific cut-off date so speculators would not 
be able to take advantage of the January 2009 control date notice and 
declare into the Area 1 fishery, not to fish, but simply to satisfy 
potential permit qualification criteria. More specifically, in 2008, 
members of the industry-based Area 1 LCMT expressed concern that effort 
in other LCMAs was shifting and/or would shift into Area 1, especially 
as other LCMAs began their own limited entry programs. The Area 1 LCMT 
was adamant that Area 1 trap fishery access needed to be restricted to 
ensure stock and fishery stability in Area 1 and that a clear and 
definitive control date needed to be established immediately--some 
suggested retroactively--to prevent the influx of speculation that they 
feared would occur as more and more individuals became aware of the 
limited access proposal. In other words, the LCMT worried that non-Area 
1 permit holders might try to designate Area 1 on their permits and 
purchase Area 1 trap tags without any intention of ever fishing there, 
simply so they could stake a claim for future Area 1 access. The 
Commission's Lobster Board agreed with the Area 1 LCMT and urged, by 
letter dated October 22, 2008, that NMFS set a control date 
immediately, which NMFS did by Federal Register publication January 2, 
2009.
    In proposing the April 30, 2009, cut-off date, instead of the 
January 2, 2009, cut-off date, NMFS specifically rejected the 
suggestions of some who thought the cut-off date should be set at a 
time before the January 2, 2009, control date notice. In fact, our 
proposed cut-off date is more than 4 months after the January 2009 
control date, which could potentially include those fishers who were 
renewing their permits at the time of the control date. We believe that 
the proposed choice provides flexibility for those few fishers who were 
potentially transferring permits in January 2009, and those who renewed 
after January 2009, while still addressing the overall goals of capping 
effort and discouraging speculation as articulated by the Area 1 LCMT 
and Lobster Board. Our choice of this date was analyzed in the draft EA 
for this action.
    Comment 9: One respondent supported the proposal to limit or 
restrict future access to the American lobster trap fishery in the EEZ 
of Area 1.
    Response: We agree with the respondent and with the Commission's 
reasoning behind its adoption of Addendum XV. This proposed rule 
addresses the Area 1 industry's concerns that lobster fishers, 
restricted from other limited conservation management areas, may shift 
their lobster trap fishing effort into Area 1. The potential for 
shifting effort into Area 1 may threaten Gulf of Maine lobster stock 
stability and stock rebuilding efforts, and this proposed rule would 
cap lobster trap fishing effort and promote the stability of the stock 
and stock rebuilding efforts.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with federalism 
implications as defined in E.O. 13132. The proposed measures are based 
upon the lobster ISFMP that was created by and is overseen by the 
states. The proposed measures are a result of Addendum XV, which was 
approved by the states, recommended by the states through the 
Commission for Federal adoption, and is in place at the state level. 
Consequently, NMFS has consulted with the states in the creation of the 
ISFMP, which makes recommendations for Federal action. Additionally, 
these proposed measures would not pre-empt state law and would do 
nothing to directly regulate the states.
    This proposed rule contains a collection of information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). A PRA analysis, 
including a revised Form 83i and supporting statement have been 
submitted to OMB for approval. The PRA analysis evaluates the burden on 
Federal lobster permit holders and the Federal Government resulting 
from the Area 1 application and appeals process.
    There are two types of applicants evaluated in the PRA analysis as 
summarized here--those whose permits pre-qualify and need only to sign 
and remit an application form, and those who do not pre-qualify and 
would need to remit an application form along with documentation to 
support the qualification criteria. For pre-qualifiers, NMFS would 
notify the approximately 1,643 permit holders for whom there is 
sufficient evidence to show that the permit would qualify for Area 1 
access, should the permit holder decide to return a pre-printed letter 
with his/her signature. The estimated burden for each of these 
applicants is 2 minutes, and the cost is estimated at $0.74 to mail the 
letter. NMFS expects all such permit holders to submit an application, 
with a total burden of 54.8 hours (hr) and $1,216 to the permit 
holders.
    The remaining permit holders, those whose permits would not pre-
qualify, would be sent a letter indicating that insufficient 
information is on-hand to qualify the permit. NMFS estimates that 288 
permit holders would apply in this fashion. The burden is estimated at 
22 minutes to allow for the search for documents to support the 
qualification criteria and sign the application. The estimated cost per 
applicant is $1.14. The cumulative cost for this category of applicants 
is 105.6 hr and $328. NMFS hypothesizes that roughly 28 applicants who 
are denied might appeal. The estimated appeals burden on each appellant 
is 30 minutes and $4.22. The cumulative burden on all appellants is 14 
hr and $118. Overall, the total program burden on permit holder is 
calculated at 174 hr and $1,662.
    Burden on the Federal Government to implement the program includes 
the labor and material costs of communicating with the applicants, 
reviewing and making a determination on the applications, and 
processing appeals. The total burden of the program on the Federal 
Government is 941 hr of labor, calculated to cost $19,406. Material 
costs to the Federal Government include those for paper, envelopes, 
postage and other supplies associated with processing the applications 
and appeals. When the estimated material costs of $2,811 are 
considered, the overall costs to the Federal Government are estimated 
at $22,217.
    Public comment is sought regarding whether this proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility and clarity of the information to be collected; and 
ways to minimize the

[[Page 71506]]

burden of the collection of information, including though the use of 
automated collection techniques or other forms of information 
technology. Send comments on these or any other aspects of the 
collection of information to the Sustainable Fisheries Division at the 
ADDRESSES above, and by email to [email protected] or fax to 
(202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, the reason 
for consideration, and its legal basis are contained in the SUMMARY 
section of the preamble in this proposed rule.
    The proposed management measures would affect small entities 
engaged in several different aspects of the lobster fishery. The 
affected entities include Federal lobster trap and non-trap permit 
holders and would limit future participation in the Area 1 lobster trap 
fishery to those historical participants that meet the proposed 
eligibility requirements as described in the SUPPLEMENTARY INFORMATION 
section.

Economic Impacts of the Proposed Rule on Small Entities

    The proposed action would limit entry to the Area 1 lobster trap 
fishery for any small entity engaged in the harvesting of lobsters that 
hold a Federal limited access lobster permit. During fishing year 2008 
there were a total of 3,152 such permitted vessels. Note that fishing 
year 2008 permit data were used in the assessment of economic impacts 
in the EA. A review of fishing year 2009 and fishing year 2010 permit 
application data found that there was no change in either gear (trap/
non-trap) or LCMA designations for more than 98 percent of all valid 
permits issued during fishing year 2008, fishing year 2009, and fishing 
year 2010. For this reason, fishing year 2008 permit data are 
considered reasonably representative of fishing year 2009 and fishing 
year 2010 permit status and are used herein for purposes of analysis.
    Under current regulations any fishing business may fish for 
lobsters with trap gear in Area 1 provided it has been issued a valid 
limited access lobster permit, it designates Area 1 as part of the 
annual permit renewal process, and it purchases Area 1 trap tags. 
However, of the 3,152 limited access permit holders, 1,867 permits 
elected to fish using trap gear in Area 1 while the remainder either 
elected to fish for lobster with non-trap gear or did not designate 
Area 1 on their 2008 permit application. Thus, while the option to fish 
in Area 1 with trap gear sometime in the future would be curtailed for 
about 40 percent of limited access lobster permit holders, the proposed 
action would have a more immediate impact on permitted vessels that may 
already be participating in the Area 1 trap fishery. Note that the 
proposed action would only limit entry to the Area 1 lobster trap 
fishery. Any Federal limited access lobster vessel that may not qualify 
would still be able to fish for lobster in Area 1 using non-trap gear.
    The small business size standard for businesses engaged in a 
commercial fishing activity is $4 million in gross sales. The number of 
regulated entities most likely to be affected by the proposed action is 
expected to be 1,867 limited access permit holders that designated Area 
1 on their 2008 permit application. The number of these entities that 
may be above or below the SBA size standard is indeterminate. Unlike 
most other federally managed fisheries, the lobster fishery is not 
subject to mandatory reporting. This means that gross sales for 
entities that possess only a Federal limited access lobster permit, 
which is the case for a majority of permitted vessels, particularly in 
Area 1, cannot be reliably determined. For purposes of further 
analysis, all 1,867 regulated entities are considered small entities.
    The proposed action would qualify any Federal permit holder that 
designated Area 1 on their 2008 permit application at any time during 
the 2008 fishing year (May 1, 2008 to April 30, 2009), and had a record 
of purchasing Area 1 trap tags in any year during 2004-2008. The 
proposed action qualification criterion regarding the date of when the 
2008 permit application had to be received is less restrictive than 
that recommended by the Commission. Specifically, the Commission 
alternative would have required that fishing year 2008 permits be 
renewed by January 2, 2009. Consequently, the proposed action would be 
less burdensome for regulated small entities than the Commission's 
alternative, because it provides an opportunity for more affected 
entities to qualify for limited access to the Area 1 trap fishery.
    Based on the proposed action qualification criteria, 1,643 (88 
percent) of the 1,867 affected small entities would qualify for the 
Area 1 trap fishery. Note that the Commission's alternative would have 
qualified 32 fewer regulated small entities. The 224 potential non-
qualifiers--calculated by taking the 1,867 permit holders that 
designated Area 1 in 2008 and subtracting the 1,643 expected 
qualifiers--are permit holders for which NMFS has no record of having 
purchased Area 1 trap tags in any year from 2004 to 2008. Further 
analysis of these non-qualifiers suggest that the majority had selected 
non-trap as a gear type during 2008, or had selected other LCMA's in 
addition to Area 1, or based their fishing operation in states that do 
not border the Gulf of Maine. NMFS believes that they likely elected 
Area 1 on their permit out of speculation, not because they were 
fishing there. Specifically, 49 of the 224 non-qualifiers listed a 
homeport state of Rhode Island, New York, New Jersey, Virginia, North 
Carolina, or other state. Of the 175 non-qualifiers from Maine, 
Massachusetts, or New Hampshire, 106 selected non-trap gear on their 
permit and 55 had elected to use trap gear in an LCMA other than Area 
1. Thus, available data suggest that 92 percent of the non-qualifiers 
may not be economically affected by the proposed action because they 
are not engaged in the Area 1 trap fishery. The potential economic 
impact on the remaining 14 non-qualifiers is uncertain. These non-
qualifiers did not select non-trap gear, nor did they select a trap 
area alternative to Area 1. Given the absence of any indication of trap 
fishing in Area 1, these 14 vessels may not be actively fishing for 
lobster at all.
    The proposed action would not implement any regulatory measures 
that would affect the manner in which qualifiers prosecute the Area 1 
trap fishery and would not, therefore, have any direct economic impact 
on qualifying entities. As noted above, the majority of non-qualifiers 
that listed Area 1 are most likely using non-trap gear to fish for 
lobster or are engaged in a lobster trap fishery in other LCMAs. The 
direct economic impact on these non-qualifying vessels is likely to be 
negligible in terms of their gross sales or profitability. However, 
these non-qualifiers, as well as the 1,285 permit holders that did not 
elect Area 1 on their 2008 permit (most of which did not select Area 1 
in other years since) may suffer some economic loss in terms of the 
value of their fishing vessel. That is, the value of a fishing vessel 
depends on the condition of the physical asset itself, its fishing 
history, and the suite of limited access permits (i.e., an open

[[Page 71507]]

access permit conveys no added value since there is no scarcity) that 
are attached to the vessel. To the extent that limited access fishing 
permits may themselves be considered assets, any change in the rights 
or conditions affecting the current or future use of the permit affects 
its asset value. Limiting access to the Area 1 trap fishery will 
restrict the future use of a limited access lobster permit for non-
qualifiers, hence some diminution of the contribution of the lobster 
permit to the value of the fishing business may occur. Notably, the 
permit value of Area 1 qualifiers may increase, since these permits 
would retain the access rights that would no longer be available to 
non-qualifiers. The magnitude of any such changes in permit value to 
either non-qualifiers or qualifiers is highly uncertain. There 
certainly is no indication or available data to suggest that the 
proposed action would have anything other than a small, if any, impact 
on permit values.

Federal Lobster Permits in Confirmation of Permit History

    If a Federal lobster permit was in Confirmation of Permit History 
(CPH) status during the entire 2008 fishing year, then it was inactive 
and the permit holder was not fishing under the permit. Consequently, 
the permit would not have an Area 1 designation for that year and thus 
would likely fail to satisfy that criterion in the proposed rule. There 
were five permits that went into CPH status prior to the start of the 
2008 fishing year that remained in CPH throughout the entire fishing 
year. Preliminary analysis indicates that only one of these permits was 
from a vessel hailing from an Area 1 port. These permits would likely 
not qualify under either the Commission's Alternative or the Preferred 
Alternative, nor would any permits that were in CPH during the 2004-
2008 trap tag purchase period that did not purchase trap tags or elect 
Area 1 on their 2008 Federal permit. In contrast, under the status quo 
alternative, these permits could transition into the Area 1 fishery if 
taken out of CPH and transferred to a vessel in the future. On balance, 
this appears to be a negligible number of permits that were inactive 
and not representative of the Area 1 lobster trap fleet.

Impacts to Federal Lobster Permit Holders With Federal Multispecies 
Permits

    To address industry concerns that catch limitations under the 
multispecies sector management program may prompt traditional 
multispecies fishermen to re-direct their efforts into the lobster trap 
fishery, we analyzed the potential impact of the proposed action on 
multispecies vessels that also hold Federal lobster permits. The sector 
management program implemented by Amendment 16 to the Northeast 
Multispecies Fishery Management Plan allows federally permitted 
multispecies (groundfish) vessels to form cooperative groups called 
sectors. Within each sector, the participating vessels combine their 
respective historical groundfish quotas, allowing them the flexibility 
to share and manage the cumulative quota of their sector. Those Federal 
multispecies vessels that do not participate in a sector may harvest 
groundfish on an individual basis, but must adhere to trip-based catch 
limits and days-at-sea. This component of the fleet is known as the 
common pool.
    As part of this analysis, we analyzed the potential impacts of the 
proposed action on the dual lobster and multispecies vessels that 
participate in the common pool and would not qualify for the Area 1 
trap fishery. We considered that these vessels may be most susceptible 
to restrictions in the multispecies fishery and may be most inclined to 
pursue the directed lobster trap fishery. Common pool vessels make up 
about half of the groundfish fleet, but share less than 10 percent of 
the overall groundfish quota for all species combined.
    Of the 967 vessels that have both a Federal lobster and 
multispecies permit, 758 would not qualify for the Area 1 trap fishery 
under the proposed action. Of these, 51 permits are in the common pool 
category and hail from Area 1 ports. Adoption of the proposed action 
would prohibit these permit holders from transitioning into the Area 1 
lobster trap fishery if restrictions on groundfishing, particularly 
those impacts on the more vulnerable common pool vessels, necessitate a 
change in fishing operations from groundfishing to the lobster trap 
fishery. On balance, we believe that this would result only in indirect 
negative impacts on these common pool fishers, since they do not have a 
previous history of fishing with traps, they had not previously taken 
advantage of the long-standing opportunity to transition into the Area 
1 trap fishery, and refitting their vessels for trap fishing may be 
cost-prohibitive. Furthermore, restricting these non-historical 
participants from the Area 1 trap fishery is consistent with the 
Commission's recommendations in Addendum XV to cap effort at recent 
(2004-2008) levels.
    In contrast to the number of dual multispecies and lobster permits 
that would not qualify for the Area 1 trap fishery under the proposed 
action, 209 vessels with both a Federal lobster and multispecies permit 
would qualify. Compared to the Commission's Alternative, five more 
Federal lobster permits with a multispecies permit would qualify under 
the proposed action--two from Massachusetts and three from Maine. All 
five are in the common pool and hail from Gulf of Maine ports, thus the 
proposed action decreases the number of affected common pool 
participants hailing from the Gulf of Maine ports, since the extension 
of the eligibility period would allow these vessels to qualify for the 
Area 1 trap fishery.

Economic Impacts of Non-Selected Alternatives

    We analyzed two other management alternatives in addition to the 
proposed action: The Commission's Alternative that requires renewal of 
the Area 1 permit prior to the January 2, 2009, control date; and a 
Status Quo Alternative that would continue to allow all Federal lobster 
permit holders the ability to gain access into the Area 1 trap fishery.
    Under the Commission's Alternative, 1,541 Federal lobster permits 
would not qualify for the Area 1 lobster trap fishery. Of these, 1,285 
have no history of fishing in Area 1 with traps. These same permits 
would not qualify under the proposed action. The remaining 256 non-
qualifying permits elected Area 1 on the 2008 Federal permit but did 
not purchase a trap tag during the established 2004-2008 trap tag 
purchase period. Forty-three of the 256 renewed their permits in 2008, 
but did so after the control date. Thirty-two of these purchased a trap 
tag during the required period and would qualify under the proposed 
action. Overall, the Commission's Alternative would qualify 32 fewer 
permits compared to the proposed action. These 32 non-qualifiers would 
likely suffer losses in value to their Federal fishing permits through 
loss of access to Area 1. The remaining non-qualifiers would also lose 
permit value, but were not actively fishing in Area 1. Therefore, any 
negative impacts due to ineligibility would be indirect and would not 
interfere with current or historical fishing practices.
    Under the status quo alternative, all Federal lobster permits would 
maintain the option to prosecute the Area 1 lobster trap fishery, 
regardless of any historical participation. Traditional Area 1 trap 
fishery participants may be negatively impacted if fishing effort 
increases due to lack of effort controls. Unchecked effort may impact 
stock

[[Page 71508]]

stability and could result in losses in income due to deteriorating 
stock conditions and increased competition. Gear conflicts may increase 
with potential increases in traps. Non-traditional participants may 
benefit by gaining access to the Area 1 lobster trap fishery, the most 
prolific lobster producing area. Such benefits may be short-lived if 
unchecked effort results in de-stabilization of the stock and fishery.

List of Subjects in 50 CFR Part 697

    Fisheries, fishing.

    Dated: November 14, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 697 is 
proposed to be amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

    1. The authority citation for part 697 continues to read as 
follows:

    Authority:  16 U.S.C. 5101 et seq.

    2. In Sec.  697.4, revise paragraph (a)(7)(ii), redesignate 
paragraphs (a)(7)(vi) through (a)(7)(x) to (a)(7)(vii) through 
(a)(7)(xi), and add a new paragraph (a)(7)(vi) to read as follows:


Sec.  697.4  Vessel permits and trap tags.

    (a) * * *
    (7) * * *
    (ii) Each owner of a fishing vessel that fishes with traps capable 
of catching lobster must declare to NMFS in his/her annual application 
for permit renewal which management areas, as described in Sec.  
697.18, the vessel will fish in for lobster with trap gear during that 
fishing season. The ability to declare into Lobster Conservation 
Management Areas 1, 3, 4 and/or 5, however, will be first contingent 
upon a one-time initial qualification as set forth in paragraphs 
(a)(7)(vi) through (a)(7)(ix) of this section.
* * * * *
    (vi) Participation requirements for EEZ Nearshore Management Area 
1. To fish for lobster with traps in Area 1, a Federal lobster permit 
holder must initially qualify into the area. To qualify, the permit 
holder seeking initial qualification must satisfy the following 
requirements in an application to the Regional Administrator:
    (A) Qualification criteria. To initially qualify into Area 1, the 
applicant must establish with documenting proof the following:
    (1) That the applicant has a valid and current Federal Lobster 
permit as of the date of the application; and
    (2) That the involved Federal Lobster Permit had an Area 1 trap 
designation at some time during the 2008 fishing year, which was May 1, 
2008, through April 30, 2009; and
    (3) That at least one trap tag was purchased to fish with traps 
under the involved Federal Lobster Permit in any one fishing year from 
2004 to 2008.
    (B) Documentary proof. To satisfy the Area 1 Initial Qualification 
and Trap Allocation Criteria set forth in paragraph (a)(7)(vi)(A) of 
this section, the applicants will be limited to the following 
documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that would allow NMFS to identify the Federal Lobster Permit 
in its data base, which would at a minimum include: The applicant's 
name and address, vessel name and permit number.
    (2) As proof of the Lobster Permit's 2008 Area 1 trap designation, 
the applicant must provide a copy of the vessel's Federal Lobster 
Permit for the 2008 fishing year. The potential qualifier may, in lieu 
of providing a copy, provide NMFS with such data that would allow NMFS 
to identify the Federal Lobster Permit in its data base, which would at 
a minimum include: The applicant's name and address, vessel name, and 
permit number.
    (3) As proof of trap tag purchases in any one fishing year from 
2004 to 2008, the applicant must provide documentation from those 
years, either from the trap tag vendor supplying the tags or from the 
state or Federal government agency, affirming the purchase of the tags 
from the vendor.
    (4) The Regional Administrator may, at his or her discretion, waive 
documentary obligations for certain elements of the qualification 
criteria for an applicant if NMFS itself has clear and credible 
evidence that would satisfy that qualification criteria for the 
applicant.
    (C) Application period. Federal lobster permit holders seeking 
entry into the Area 1 trap fishery must apply for qualification by 
November 1, 2012. Failure to apply for Area 1 access by that date shall 
be considered a waiver of any future claim for trap fishery access into 
Area 1.
    (D) Appeal of denial of permit. Any applicant having first applied 
for initial qualification into the Area 1 trap fishery pursuant to 
paragraph (a)(7)(vi) of this section, but having been denied access, 
may appeal to the Regional Administrator within 45 days of the date 
indicated on the notice of denial. Any such appeal must be in writing.
    (1) Grounds for appeal: The sole grounds for administrative appeal 
shall be that NMFS erred clerically in concluding that the vessel did 
not meet the criteria in paragraph (a)(7)(vi) of this section. Errors 
arising from oversight or omission such as ministerial, mathematical, 
or typographical mistakes would form the basis of such an appeal. 
Alleged errors in substance or judgment do not form a sufficient basis 
of appeal under this paragraph. The appeal must set forth the basis for 
the applicant's belief that the Regional Administrator's decision was 
made in error. If the appealing applicant does not clearly and 
convincingly prove that an error occurred, the appeal must be denied.
    (2) Appellate timing and review. All appeals must be in writing and 
must be submitted to the Regional Administrator postmarked no later 
than 45 days after the date on NMFS's Notice of Denial of Initial 
Qualification application. Failure to register an appeal within 45 days 
of the date of the Notice of Denial will preclude any further appeal. 
The appellant may notify the Regional Administrator of his or her 
intent to appeal within the 45 days and request a time extension to 
procure the necessary documentation. Time extensions shall be limited 
to 30 days and shall be calculated as extending 30 days beyond the 
initial 45-day period that begins on the original date on the Notice of 
Denial. Appeals submitted beyond the deadlines stated herein will not 
be accepted. Upon receipt of a complete written appeal with supporting 
documentation in the time frame allowable, the Regional Administrator 
will then appoint an appeals officer who will review the appellate 
documentation. After completing a review of the appeal, the appeals 
officer will make findings and a recommendation, which shall be 
advisory only, to the Regional Administrator, who shall make the final 
agency decision whether to qualify the applicant.
    (3) Status of vessels pending appeal. The Regional Administrator 
may authorize a vessel to fish with traps in Area 1 during an appeal. 
The Regional Administrator may do so by issuing a letter authorizing 
the appellant to fish up to 800 traps in Area 1 during the pendency of 
the appeal. The Regional Administrator's letter must be present onboard 
the vessel while it is engaged in such fishing in order for the vessel 
to be authorized to fish. If the appeal is

[[Page 71509]]

ultimately denied, the Regional Administrator's letter authorizing 
fishing during the appeal will become invalid 5 days after receipt of 
the notice of appellate denial or 15 days after the date on the notice 
of appellate denial, whichever occurs first.
* * * * *
[FR Doc. 2011-29845 Filed 11-17-11; 8:45 am]
BILLING CODE 3510-22-P