[Federal Register Volume 83, Number 23 (Friday, February 2, 2018)]
[Proposed Rules]
[Pages 4890-4893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02119]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 170630611-8032-01]
RIN 0648-BH01


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; 
Regulatory Amendment 4

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 to implement management measures described in 
Regulatory Amendment 4 to the Fishery Management Plan for Spiny Lobster 
in 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 proposed rule would increase 
the annual catch limit (ACL) for spiny lobster based on updated 
landings information and revised scientific recommendations. This 
proposed rule would also prohibit the use of traps for recreational 
harvest of spiny lobster in the South Atlantic exclusive economic zone 
(EEZ) off Georgia, South Carolina, and North Carolina. The purposes of 
this proposed rule and Regulatory Amendment 4 are to ensure catch 
levels for spiny lobster are based on the best scientific information 
available, to prevent overfishing, and to minimize potential negative 
effects of traps on habitat and protected species interactions in the 
South Atlantic EEZ.

DATES: Written comments must be received on or before March 4, 2018.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2017-0125'' by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0125, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit all written comments to Nikhil Mehta, 
Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, 
FL 33701.
    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), 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).
    Electronic copies of Regulatory Amendment 4, which includes an 
environmental assessment and a regulatory flexibility analysis, and a 
regulatory impact review, may be obtained from the Southeast Regional 
Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_sa/spiny_lobster/A4_lobster_acl/a4_lobster_acl_index.html.

FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305, 
or email: [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 part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C 1801 
et seq.).

Background

    In 2012, NMFS implemented Amendment 10 to the FMP, which included 
an overfishing limit (OFL), acceptable biological catch (ABC), ACL, 
annual catch target (ACT), accountability measure (AM), and status 
determination criteria for spiny lobster (76 FR 75488; December 2, 
2011). The OFL and ABC were specified using Tier 3a of the Gulf 
Council's ABC Control Rule (control rule), as recommended by the 
Scientific and Statistical Committees (SSCs) of the South Atlantic and 
Gulf of Mexico Fishery Management Councils (Councils). Applying the 
control rule, the SSCs recommended an OFL equal to the mean of the most 
recent 10 years of landings (fishing years 2000/2001 through 2009/2010) 
plus 2 standard deviations, and an ABC equal to the mean of the most 
recent 10 years of landings plus 1.5 standard deviations. This resulted 
in an OFL of 7.9 million lb (3.58 million kg) and an ABC of 7.32 
million lb (3.32 million kg). The maximum sustainable yield (MSY) proxy 
and overfishing threshold (maximum fishing mortality threshold (MFMT)) 
were set equal to the OFL. The ACL was set equal to the ABC. The ACT, 
which equals the optimum yield (OY), was set at 90 percent of the ACL.
    Since that time, the spiny lobster ACT has been exceeded three 
times, the ACL has been exceeded twice, and the OFL has been exceeded 
once. The AM established in Amendment 10 requires that the Councils 
convene a review panel if the spiny lobster ACT is exceeded, and the 
National Standard 1 guidelines state that if the ACL is exceeded more 
than once in a 4-year period, then the system of ACLs and AMs should be 
re-evaluated and modified, as necessary, to improve its performance and 
effectiveness (50 CFR 600.310(g)(7)). Therefore, The Councils convened 
a Spiny Lobster Review Panel (Review Panel) in February 2015, and again 
in March 2016, to assess whether action was needed to prevent the ACL 
from being exceeded. The Review Panel recommended that the catch levels 
for spiny lobster be based on the mean of landings during the fishing 
years 1991/1992 through 2015/2016, which is a longer time period than 
the 10-year period that was used to determine the current catch levels 
(fishing years 2000/2001 through 2009/2010). This is because the 
landings were historically low during the 2000/2001 through 2009/2010 
time period used for the calculation of the current catch levels. The 
Review Panel determined that using the longer time period to calculate 
catch levels would better capture the dynamics of the fishery. Both 
SSCs agreed with the Review Panel and recommended using the longer time 
series of landings under Tier 3a of the control rule for setting the 
OFL and ABC. Using the longer time series of landings results in a 
revised OFL of 10.46 million lb (4.74 million kg) and a revised ABC of 
9.60 million lb (4.35 million kg). Although the revised OFL and ABC are 
higher than the current OFL and ABC, using the longer time series is a 
more precautionary approach for calculating OFL and ABC than using the 
most recent 10 years of landings (2006/2007 through 2015/2016) because 
these landings have been historically high. The longer time series

[[Page 4891]]

incorporates periods of both low and high landings.

Management Measures Contained in This Proposed Rule

    This proposed rule would modify the stock ACL and ACT for spiny 
lobster and prohibit the use of traps for the recreational harvest of 
spiny lobster in the South Atlantic EEZ.

Stock ACL and ACT

    This proposed rule would revise the stock ACL and ACT based on the 
new ABC recommendation provided by the Councils' SSCs. As stated above, 
the current spiny lobster stock ACL is equal to the ABC, and the stock 
ACT is set at 90 percent of the ACL. This proposed rule would set the 
ACL equal to the ABC of 9.60 million lb (4.35 million kg), which is 
based on the mean landings from the years 1991/1992-2015/2016 plus 1.5 
standard deviations. The ACT would be set at 8.64 million lb (3.92 
million kg), which is 90 percent of the proposed ACL. As established in 
Amendment 10, the OY equals the ACT. NMFS does not expect the increase 
in the ACT and ACL to result in negative biological effects on the 
stock because current fishing effort is limited by the number of trap 
tags issued by the state of Florida, by commercial and recreational bag 
and possession limits in the EEZ in the South Atlantic and the Gulf 
EEZ, and by the duration of the fishing season, which varies depending 
on the area where spiny lobsters are harvested.

Recreational Harvest of Spiny Lobster Using Traps in the South Atlantic 
EEZ

    Currently, the use of traps is not allowed for recreational harvest 
of spiny lobster in the EEZ off Florida, but traps may be used for 
recreational harvest of spiny lobster in the South Atlantic EEZ off the 
states of Georgia, South Carolina, and North Carolina. This proposed 
rule would prohibit the use of traps for recreational harvest of spiny 
lobster in all of the South Atlantic EEZ.
    The public has expressed little interest in using traps for the 
recreational harvest of spiny lobster, which may be a result of the two 
lobsters per person per trip limit applicable to harvest from Federal 
waters of the South Atlantic. However, the Councils are concerned that 
using this gear may become more popular and result in potential 
negative impacts on essential fish habitat and an increase in the use 
of vertical lines that may interact with protected species, for 
example, by creating entanglement issues. Trap gear also has the 
potential to ``ghost fish,'' which occurs when a trap continues to fish 
after it is lost. Because spiny lobsters are larger in size in the EEZ 
off Georgia, South Carolina, and North Carolina than in the EEZ off 
Florida, current trap configuration may not be efficient in capturing 
spiny lobster in these areas, and recreational traps used in these 
areas may require larger mouths (entrances), which could result in 
greater bycatch of fish, crabs, and other invertebrates, including 
undersized spiny lobsters.

Measures in Regulatory Amendment 4 Not in Codified Through This 
Proposed Rule

    As established in Amendment 10, the MSY proxy and MFMT are equal to 
the OFL, which was set at 7.9 million lb (3.58 million kg). Consistent 
with Amendment 10, Regulatory Amendment 4 would modify the MSY proxy 
and MFMT values, so that they are equal to the revised OFL of 10.46 
million lb (4.74 million kg).

Corrections in This Proposed Rule Not Included in Regulatory Amendment 
4

    In addition to the measures associated with Regulatory Amendment 4, 
this proposed rule would also correct regulatory language that was 
mistakenly included in the final rule implementing Amendment 10. 
Amendment 10 modified the restrictions on the possession of undersized 
spiny lobsters for use as attractants in the commercial sector. Prior 
to Amendment 10, no more than fifty undersized spiny lobsters, or one 
per trap aboard the vessel, whichever was greater, could be retained on 
board for use as attractants. Amendment 10 changed this restriction to 
allow for no more than fifty per vessel plus one per trap aboard the 
vessel. This change was correctly included in the proposed rule to 
implement Amendment 10 (76 FR 59102; September 23, 2011), but was 
inadvertently changed in the final rule to include the additional 
phrase (from the prior language), ``whichever is greater'' (76 FR 
75488; December 2, 2011). The final rule also inadvertently included 
this restriction twice in the applicable paragraph. To correct these 
mistakes, this proposed rule would change 50 CFR 622.407(c) to remove 
the phase ``whichever is greater'' and remove the first occurrence of 
the duplicative sentence. This proposed rule would also change the 
wording of the restriction slightly to more directly state that the 
total number of undersized spiny lobster allowed onboard a vessel is 
fifty plus one per trap. The restriction currently states: ``No more 
than fifty undersized spiny lobsters, and one per trap aboard the 
vessel, may be retained aboard for use as attractants.'' The proposed 
rule would change the ``and'' to ``plus'' so that the sentence reads: 
``No more than fifty undersized spiny lobsters plus one per trap aboard 
the vessel may be retained aboard for use as attractants.''

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 Regulatory Amendment 4, the FMP, 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.
    The Magnuson-Stevens Act provides the statutory basis for this 
proposed rule. No duplicative, overlapping, or conflicting Federal 
rules have been identified. A description of this proposed rule and its 
purpose and need are contained in the SUMMARY section of the preamble.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is described below.
    This proposed rule would directly affect commercial and 
recreational fishing for spiny lobster in the Gulf EEZ and the South 
Atlantic EEZ. Anglers (recreational fishers) are not considered small 
entities as that term is defined in 5 U.S.C. 601(6). Consequently, 
estimates of the number of anglers directly affected by the rule and 
the impacts on them are not provided here.
    Any commercial fishing business that operates a fishing vessel that 
lands whole spiny lobster in the Gulf EEZ and/or the South Atlantic 
EEZ, except off Florida, must have a valid Federal spiny lobster permit 
that is specifically assigned to that vessel. In the EEZ off Florida, a 
commercial vessel must have either a valid Federal spiny lobster permit 
or all required Florida licenses and certificates to harvest the 
species. Any vessel that lands only the tail from a spiny lobster 
caught in the EEZ must have a Federal tailing permit on board in 
addition to either a valid Federal spiny lobster permit or all required 
Florida licenses and certificates. Both Federal permits are open access 
permits.
    As of March 1, 2017, there were 185 Federal spiny lobster and 210 
spiny lobster tailing permits issued to a total of 272 vessels. 
Approximately 45

[[Page 4892]]

percent of those vessels have both Federal permits. These 272 vessels 
make up the federally permitted spiny lobster fleet. Approximately 75 
percent of the Federal permits are held by businesses in Florida, 
followed in turn by those in North Carolina with approximately 12 
percent. Florida businesses account for all but one of the vessels with 
only a tailing permit. NMFS estimates a total of 198 businesses hold 
all of the Federal spiny lobster permits assigned to the above 272 
vessels.
    The individual businesses have from 1 to 11 vessels in the 
federally permitted spiny lobster fleet. Approximately 84 percent of 
the 198 businesses have only one vessel in the fleet, and collectively 
these businesses account for 61 percent of the 272 federally permitted 
vessels. Approximately 95 percent of the businesses have no more than 2 
vessels, while 3 percent have 6 or more vessels and collectively make 
up approximately 18 percent of the 272 vessels.
    Approximately 99 percent of commercial landings of spiny lobster 
occur in Florida. Hence, NMFS expects that almost all of the impacts of 
the rule will be on commercial fishing businesses located in Florida, 
and within Florida, approximately 91 percent of the state's landings 
are in Monroe County.
    For purposes of the Regulatory Flexibility Act, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily involved in commercial fishing (NAICS 
11411) is classified as a small business if it is independently owned 
and operated, is not dominant in its field of operation (including its 
affiliates), and its combined annual receipts are not in excess of $11 
million for all of its affiliated operations worldwide. NMFS expects 
that most to all of the businesses that harvest spiny lobster in the 
EEZ (with or without a Federal permit) are small businesses, based on 
historical average annual revenues per vessel that are less than 
$50,000.
    Regulatory Amendment 4 would revise the MSY proxy and MFMT. Those 
revisions would have no direct impact on any small businesses, and any 
indirect impact is dependent on subsequent action.
    This proposed rule would increase the ACL to 9.60 million lb (4.35 
million kg), and ACT to 8.64 million lb (3.92 million kg), whole 
weight. There would be no impact on small businesses, however, because 
there is no Federal closure if landings reach or are projected to reach 
the ACL or ACT.
    In conclusion, NMFS expects this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, an initial regulatory flexibility analysis is not required, 
and none has been prepared.
    No new reporting, record-keeping, or other compliance requirements 
are introduced by this proposed rule. Accordingly, this proposed rule 
does not implicate the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 640

    Fisheries, Fishing, Gulf, South Atlantic, Spiny lobster, Trap.

     Dated: January 30, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 600 and 622 
are proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

Subpart R--Spiny Lobster Fishery of the Gulf of Mexico and South 
Atlantic

0
2. In Sec.  600.725, in the table in paragraph (v), under heading 
``III. South Atlantic Fishery Management Council,'' under entry 7, 
revise entry B pertaining to the ``Recreational fishery'' in the 
``Authorized gear types'' column to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

 
----------------------------------------------------------------------------------------------------------------
                Fishery                                           Authorized gear types
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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                                 III. South Atlantic Fishery Management Council
 
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
7. South Atlantic Spiny Lobster Fishery (FMP):
 
                                                  * * * * * * *
B. Recreational fishery................  B. Dip net, bully net, snare, hand harvest.
 
                                                  * * * * * * *
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PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH 
ATLANTIC

0
3. The authority citation for part 622 continues to read as follows:

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

0
4. In Sec.  622.404, add paragraph (d) to read as follows:


Sec.  622.404  Prohibited gear and methods.

* * * * *
    (d) Except for black sea bass pots and golden crab traps as allowed 
in Sec.  622.188 and Sec.  622.248, respectively, the possession of all 
other traps is prohibited onboard a vessel in the South Atlantic EEZ 
when spiny lobster subject to the recreational bag and possession 
limits specified in Sec.  622.408 is also onboard the vessel. The 
recreational harvest of spiny lobster using a trap is prohibited in the 
South Atlantic EEZ.
0
5. In Sec.  622.407, revise paragraph (c) to read as follows:


Sec.  622.407  Minimum size limits and other harvest limitations.

* * * * *
    (c) Undersized attractants. A live spiny lobster under the minimum 
size limit specified in paragraph (a)(1) of this

[[Page 4893]]

section that is harvested in the EEZ by a trap may be retained aboard 
the harvesting vessel for future use as an attractant in a trap 
provided it is held in a live well aboard the vessel. The live well 
must provide a minimum of \3/4\ gallons (1.7 liters) of seawater per 
spiny lobster. An undersized spiny lobster so retained must be released 
to the water alive and unharmed immediately upon leaving the trap lines 
and prior to one hour after official sunset each day. No more than 
fifty undersized spiny lobsters plus one per trap aboard the vessel may 
be retained aboard for use as attractants.
* * * * *
0
6. Revise Sec.  622.411, to read as follows:


Sec.  622.411  Annual catch limits (ACLs), annual catch targets (ACTs), 
and accountability measures (AMs).

    For recreational and commercial spiny lobster landings combined, 
the ACL is 9.60 million lb (4.35 million kg), whole weight. The ACT is 
8.64 million lb, (3.92 million kg) whole weight.
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[FR Doc. 2018-02119 Filed 2-1-18; 8:45 am]
 BILLING CODE 3510-22-P