[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)]
[Proposed Rules]
[Pages 46533-46537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19233]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 150610515-5515-01]
RIN 0648-BF16


Fisheries of the Northeastern United States; 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: Based on Atlantic States Marine Fisheries Commission 
recommendations, we, the National Marine Fisheries Service, are 
proposing to modify the Lobster Conservation Management Area 4 seasonal 
closure and are requesting comment. This action is necessary to reduce 
fishing effort in Area 4 by 10 percent. This action is intended to 
ensure fishery regulations for the lobster fishery in Federal waters 
remain consistent with the Commission's Interstate Fishery Management 
Plan for American Lobster and previously implemented state measures and 
the intent of the Atlantic Coastal Fisheries Cooperative Management 
Act.

DATES: Comments must be received on or before September 4, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0075, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0075, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.

[[Page 46534]]

     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on American Lobster Proposed Rule.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Allison Murphy, Fishery Policy 
Analyst, (978) 281-9122.

SUPPLEMENTARY INFORMATION: 

Background

    The American lobster fishery is managed by the Commission under 
Amendment 3 to the Interstate Fishery Management Pan for American 
Lobster (ISFMP). Since 1997, the Commission has coordinated the efforts 
of the states and Federal Government toward sustainable management of 
the American lobster fishery. We manage the portion of the fishery 
conducted in Federal waters from 3 to 200 miles offshore, based on 
management recommendations made by the Commission.
    The American lobster management unit is divided between three 
lobster stocks and seven Lobster Conservation Management Areas.
[GRAPHIC] [TIFF OMITTED] TP05AU15.013


[[Page 46535]]


    The 2009 stock assessment indicated that the Southern New England 
American lobster stock, which includes all or part of six areas, is at 
a low level of abundance and is experiencing persistent recruitment 
failure, caused by a combination of environmental factors and continued 
fishing mortality. To address the poor condition of the Southern New 
England stock, the Commission adopted Addendum XVII to Amendment 3 of 
the ISFMP in February of 2012. The measures in Addendum XVII were 
intended to reduce fishing exploitation on the Southern New England 
lobster stock by 10 percent. Copies of the Addendum are available on 
the Commission's Web site at: http://www.asmfc.org.
    Consistent with the Commission's action in Addendum XVII, we issued 
complementary regulations (80 FR 2028; January 15, 2015) for Areas 2, 
3, 4, and 5. Measures for Area 4 included mandatory v-notching 
requirement of egg-bearing female lobster and an annual seasonal 
closure from February 1-March 31. States, as required, came into 
compliance with Addendum XVII by January 1, 2013.

Proposed Measures

    We are now proposing to change the Area 4 seasonal closure from 
February 1-March 31 to April 30-May 31, consistent with the 
Commission's recommendation. The American Lobster Technical Committee 
analyzed the effectiveness of the February 1-March 31 closure after it 
was implemented by the states and presented these results to the 
Commission in late 2014. The Technical Committee's analysis indicated 
that the February and March closure in Area 4 achieved only a 3.7-
percent reduction in effort, falling short of the required 10-percent 
reduction. The Technical Committee recommended that the Lobster Board 
shift the annual seasonal closure from February 1-March 31 to April 30-
May 31. The Technical Committee projected that this shift would achieve 
a 10.1-percent reduction in effort. The Lobster Board reviewed this 
analysis and approved the Area 4 seasonal closure modification during 
several meetings in late 2014 and early 2015. The Lobster Board also 
recommended that all jurisdictions change the closure date to April 30-
May 31 annually. New York and New Jersey (the two states bordering Area 
4) have already adjusted their regulatory closure to this later date. 
In addition, the states have retained the 1-week grace period at the 
end of the seasonal closure to reset unbaited gear. They did not retain 
the 2-week grace period at the start of the closure and state 
regulations.
    The affected states have already issued or are in the process of 
issuing regulations that comply with this change. We are proposing to 
shift the timing of the Area 4 seasonal closure, consistent with the 
Commission's recommendation.

Classification

    This proposed rule has been preliminary determined to be consistent 
with the provisions of the Atlantic Coastal Act, the National Standards 
of the Magnuson-Stevens Act, and other applicable laws, subject to 
further consideration after public comment.
    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 that term is defined in E.O. 13132. The proposed 
measures are based upon the American Lobster ISFMP that was created by 
and is overseen by the states. The proposed measures were a result of a 
modification to Addendum XVII measures, which was approved by the 
states, recommended by the states through the Commission for Federal 
adoption, and are 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 does not contain a collection of information 
requirement subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA).
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
agencies to assess the economic impacts of their proposed regulations 
on small entities. The objective of the RFA is to consider the impacts 
of a rulemaking on small entities, and the capacity of those affected 
by regulations to bear the direct and indirect costs of regulation. We 
prepared an Initial Regulatory Flexibility Analysis (IRFA) for this 
action as required by section 603 of the RFA. The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. The proposed management measure would affect small entities 
(i.e., Federal lobster permit holders) fishing in Southern New England, 
specifically in Area 4.

Description of the Reasons Why Action by NMFS Is Being Considered

    For a full description of the reasons why this action is being 
considered, please refer to the Background section of the preamble. The 
Commission has recommended a change to the Area 4 seasonal closure, 
which is expected to better achieve the required effort reduction. The 
affected states have already issued regulations that comply with this 
change. Consistent with the Atlantic Coastal Act, we intend to 
implement regulations consistent with Commission recommendations and 
those promulgated by our partner states.

Statement of the Objectives of, and Legal Basis for, This Proposed Rule

    The objective of the proposed action is to assist in the reduction 
of fishing exploitation by 10 percent as part of an overall effort to 
rebuild the Southern New England lobster stock. The legal basis for the 
proposed action is the ISFMP and promulgating regulations at 50 CFR 
part 697.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rule Would Apply

    The RFA recognizes and defines three kinds of small entities: Small 
businesses; small organizations; and small governmental jurisdictions. 
The Small Business Administration (SBA) size standards define whether a 
business entity is small and, thus, eligible for Government programs 
and preferences reserved for ``small business'' concerns. Size 
standards have been established (and recently modified) for all for-
profit economic activities or industries in the North American Industry 
Classification System (NAICS). Designations of large and small entities 
were based on each entity's 3-year average landings. For entities 
landing a plurality of revenue in shellfish (NAICS 111412), the 
threshold for ``large'' is $5.0 million. For entities landing a 
plurality of revenue in finfish (NAICS 111411), the threshold for 
``large'' is $19.0 million. The number of directly regulated entities 
for purposes of analyzing the economic impacts and describing those 
that are small businesses is selected based on permits held. Since this 
proposed regulation applies only to the businesses that hold Area 4 
permits, only those business entities are evaluated. Business entities 
that do not own vessels with directly regulated permits are not 
described.
    Of the 47 small entities identified in the IRFA, 23 are considered 
a shellfish business, 12 are considered a finfish business, and 12 
could not be identified

[[Page 46536]]

as either because even though they had a lobster permit (in Area 4), 
they had no earned revenue from fishing activity. Because they had no 
revenue in the last 3 years, they would be considered small by default, 
but would also be considered as latent effort.
    The entity definition used by the Northeast Fisheries Science 
Center Social Sciences Branch uses only unique combinations of owners. 
That is, entities are not combined if they have a shared owner. Section 
3 of the SBA defines affiliation as: Affiliation may arise among two or 
more persons with an identity of interest. Individuals or firms that 
have identical or substantially identical business or economic 
interests (such as family members, individuals or firms with common 
investments, or firms that are economically dependent through 
contractual or other relationships) may be treated as one party with 
such interests aggregated (13 CFR 121.103(f)).
    The recent addition of vessel owner information to the permit data 
allows us to better define fishing ``businesses.'' The vessel ownership 
data identify all the individual people who own fishing vessels. 
Vessels can be grouped together according to common owners, which can 
then be treated as a fishing business, for purposes of RFA analyses. 
Revenues summed across all vessels in the group and the activities that 
generate those revenues form the basis for determining whether the 
entity is a large or small business. Ownership data are available for 
the potentially impacted by the proposed action from 2010 onward.
    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, been destroyed, or transferred 
to another person, must apply for and receive a ``confirmation of 
history'' (CPH) if the fishing and permit history of such vessel has 
been retained lawfully by the applicant. Issuance of a valid CPH 
preserves the eligibility of the applicant to apply for a permit for a 
replacement vessel based on the qualifying vessel's fishing and permit 
history at a subsequent time. The ownership data based on the permits 
held do not contain information on CPH permits. A total of six CPH's 
exist for lobster Area 4.
    While considering the number of affected entities, it is also worth 
noting that the vast majority of permit holders are either dually 
permitted (i.e., issued both a Federal and state permit) or otherwise 
subject to a state's lobster regulations. Accordingly, most all Federal 
permit holders will be required to comply with the proposed measures 
even if NMFS does not implement these measures. In other words, these 
Federal permit holders will be obligated to comply with these measures 
and responsibilities attendant to their state permit regardless of 
whether these same measures are also required under their Federal 
permit. In fact, if we do not take the proposed action, these dual 
permit holders will be restricted for a total of 3 months (February 1-
March 31 under the Federal permit and April 30-May 31 under the state 
permit). Neither the Technical Committee or the Lobster Board 
recommended this scenario.

Descriptions of Significant Alternatives Which Minimize Any Significant 
Economic Impact of Proposed Action on Small Entities

    Due to the expected high rate of dual permitting and that the fact 
that all of the impacted states already comply with the revised Area 4 
seasonal closure or soon will, the majority of Federal vessels must 
already abide by these requirements, and therefore have already been 
impacted. For those vessels not dually permitted, this change in the 
Area 4 seasonal closure can be expected to have limited economic impact 
to permit holders. Because the proposed regulations are consistent with 
Commission recommendations and current state regulations, alternative 
measures, such as maintaining the status quo, would likely create 
inconsistencies and regulatory disconnects with the states and would 
likely worsen potential economic impacts. Therefore, the status quo was 
not considered reasonable, and, for similar reasons, other alternatives 
that maintained disconnected state and Federal closures were not 
considered. The status quo is also inconsistent with the objectives of 
Addendum XVII to the ISFMP and, consequently, was not considered.

Reporting, Recordkeeping and Other Compliance Requirements

    This action contains no new collection-of-information, reporting, 
or recordkeeping requirements.

Duplication, Overlap or Conflict With Other Federal Rules

    This action does not duplicate, overlap, or conflict with any other 
Federal Laws.

List of Subjects in 50 CFR Part 697

    Fisheries, fishing.

    Dated: July 30, 2015.
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

0
1. The authority citation for part 697 continues to read as follows:

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

0
2. In Sec.  697.7, revise paragraph (c)(1)(xxx)(B) to read as follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (xxx) * * *
    (B) Area 4 seasonal closure. The Federal waters of Area 4 shall be 
closed to lobster fishing from April 30 through May 31.
    (1) Lobster fishing is prohibited in Area 4 during this seasonal 
closure. Federal lobster permit holders are prohibited from possessing 
or landing lobster taken from Area 4 during the seasonal closure.
    (2) All lobster traps must be removed from Area 4 waters before the 
start of the seasonal closure and may not be re-deployed into Area 4 
waters until after the seasonal closure ends. Federal trap fishers are 
prohibited from setting, hauling, storing, abandoning, or in any way 
leaving their traps in Area 4 waters during this seasonal closure.
    (i) Lobster fishers have a 1-week grace period from May 24 to May 
31 to re-set gear in the closed area. During this grace period, re-set 
traps may not be re-hauled and any Federal lobster permit holder re-
setting Area 4 traps during this grace period is prohibited from 
possessing on board any lobster regardless of the area from which the 
lobster may have been harvested.
    (ii) [Reserved]
    (3) Federal lobster permit holders are prohibited from possessing 
or carrying lobster traps aboard a vessel in Area 4 waters during this 
seasonal closure unless the vessel is operating subject to the grace 
period identified in paragraph (c)(1)(xxx)(B)(2)(ii) of this section or 
is transiting through Area 4 pursuant to paragraph (c)(1)(xxx)(B)(5) of 
this section.
    (4) The Area 4 seasonal closure relates only to Area 4. The 
restrictive provisions of Sec.  697.3 and Sec.  697.4(a)(7)(v) do not 
apply to this closure. Federal

[[Page 46537]]

lobster permit holders with an Area 4 designation and another Lobster 
Management Area designation on their Federal lobster permits would not 
have to similarly remove their lobster gear from the other designated 
management areas.
    (5) Transiting Area 4. Federal lobster permit holders may possess 
lobster traps on their vessels in Area 4 during the seasonal closure 
only if:
    (i) The trap gear is stowed; and
    (ii) The vessel is transiting the Area 4. For the purposes of this 
section, transiting shall mean passing through Area 4 without stopping, 
to reach a destination outside Area 4.
    (6) The Regional Administrator may authorize a permit holder or 
vessel owner to haul ashore lobster traps from Area 4 during the 
seasonal closure without having to engage in the exempted fishing 
process in Sec.  697.22, if the permit holder or vessel owner can 
establish the following:
    (i) That the lobster traps were not able to be hauled ashore before 
the seasonal closure due to incapacity, vessel/mechanical 
inoperability, and/or poor weather; and
    (ii) That all lobsters caught in the subject traps will be 
immediately returned to the sea.
    (iii) The Regional Administrator may condition this authorization 
as appropriate in order to maintain the overall integrity of the 
closure.
* * * * *
[FR Doc. 2015-19233 Filed 8-4-15; 8:45 am]
 BILLING CODE 3510-22-P