[Federal Register Volume 83, Number 121 (Friday, June 22, 2018)]
[Rules and Regulations]
[Pages 29044-29047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13400]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 170630611-8525-02]
RIN 0648-BH01


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

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

ACTION: Final rule.

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SUMMARY: NMFS implements management measures described in Regulatory 
Amendment 4 to the Fishery Management Plan for Spiny Lobster in the 
Gulf of Mexico (Gulf) and South Atlantic (FMP), as prepared and 
submitted by the Gulf and South Atlantic Fishery Management Councils 
(Councils). This final rule increases the annual catch limit (ACL) for 
spiny lobster based on updated landings information and revised 
scientific recommendations. This final rule also prohibits 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 final rule 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: This final rule is effective on July 23, 2018.

ADDRESSES: 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, NMFS Southeast Regional 
Office, telephone: 727-824-5305, or email: [email protected].

SUPPLEMENTARY INFORMATION: The spiny lobster fishery of the 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.).
    On February 2, 2018, NMFS published a proposed rule for Regulatory 
Amendment 4 in the Federal Register and requested public comment (83 FR 
4890). Regulatory Amendment 4 and the proposed rule outline the 
rationale for the actions contained in this final rule. A summary of 
the management measures described in Regulatory Amendment 4 and 
implemented by this final rule is provided below.

Management Measures Contained in This Final Rule

    This final rule modifies the stock ACL and annual catch target 
(ACT) for spiny lobster and prohibits the use of traps for the 
recreational harvest of spiny lobster in the South Atlantic EEZ.

Stock ACL and ACT

    This final rule revises the stock ACL and ACT based on the new 
acceptable biological catch (ABC) recommendation provided by the 
Councils' Scientific and Statistical Committees (SSCs). This final rule 
sets the ACL equal to the recommended 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. This final rule sets the 
ACT at 8.64 million lb (3.92 million kg), which is 90 percent of the 
ACL. As established in Amendment 10 to the FMP (Amendment 10), the 
optimum yield (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 several variables. These 
variables include the number of trap tags issued by the state of 
Florida, commercial and recreational bag and possession limits in the 
Gulf and South Atlantic EEZ, and 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

    This final rule prohibits the use of traps for recreational harvest 
of spiny lobster in all of the South Atlantic EEZ.
    The Councils are concerned that using these traps for recreational 
harvest 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, continuing to fish after a trap is 
lost, or creating bycatch.

Measures in Regulatory Amendment 4 Not Codified Through This Final Rule

    As established in Amendment 10, the maximum sustainable yield (MSY) 
proxy and maximum fishing mortality threshold (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).

Measures in This Final Rule Not Included in Regulatory Amendment 4

    In addition to implementing the measures associated with Regulatory 
Amendment 4, this final rule corrects regulatory language that was 
mistakenly included in the final rule implementing Amendment 10. This 
final rule changes 50 CFR 622.407(c) to remove the phrase ``whichever 
is greater'' and the first occurrence of a duplicative sentence. This 
final rule also makes a minor

[[Page 29045]]

wording revision to more directly state that the total number of 
undersized spiny lobster allowed on-board a vessel is 50 plus 1 per 
trap.

Comments and Responses

    A total of 14 comments were received on the proposed rule to 
implement Regulatory Amendment 4. Comments that were beyond the scope 
of the proposed rule and comments that agreed with the proposed actions 
are not responded to in this final rule. Other comments that relate to 
the actions contained in Regulatory Amendment 4 and the proposed rule 
are grouped as appropriate and summarized below, followed by NMFS' 
respective responses.
    Comment 1: The ACL for spiny lobster should not be increased. The 
ACL should remain at its current level for another 5 years to allow the 
spiny lobster populations to increase.
    Response: NMFS disagrees. The new ACL is consistent with a new ABC 
recommendation by the Councils' SSCs. The prior ABC recommendation was 
based on a time period when landings were historically low. The new ABC 
and the corresponding increase in the ACL are based on a longer time 
period (1991/1992 through 2015/2016) to better capture the dynamics of 
the fishery that are influenced by factors beyond spiny lobster biology 
and harvest, such as environmental, economic, and social conditions. As 
described in Regulatory Amendment 4, increasing the ACL is not expected 
to negatively affect the spiny lobster population because fishing 
effort is not expected to increase. Current fishing effort is limited 
by such measures as the number of commercial trap tags issued by the 
state of Florida, commercial and recreational bag and possession limits 
in the South Atlantic and Gulf EEZ, and the duration of the fishing 
seasons, which varies based on location. Further, maintaining the 
current ACL for 5 years would not necessarily allow for the spiny 
lobster populations to increase in U.S. waters. Spiny lobster is widely 
distributed throughout the western Atlantic Ocean from as far north as 
North Carolina to as far south as Brazil, including Bermuda, The 
Bahamas, Caribbean, and Central America. Genetic studies show that most 
larval recruits in U.S. waters are from elsewhere in the Caribbean, 
with only 10-40 percent locally spawned larvae retained in U.S. waters.
    Comment 2: The timeframe used to specify catch limits for spiny 
lobster should be continuously updated to incorporate periods of low 
and high landings, natural disasters such as hurricanes, and to allow 
for accurate estimates of the stock OFL and ABC.
    Response: NMFS agrees that is appropriate to reevaluate the ABC, 
which is used to set the catch limit, when relevant new information 
becomes available. That is what occurred through the process leading to 
up to the Council proposing Regulatory Amendment 4. As explained above, 
the current OFL and ABC for spiny lobster were established using the 
mean of the most recent 10 years of landings at that time (i.e., 
fishing years 2000/2001 through 2009/2010). The Councils' SSCs 
reevaluated this approach in 2016 in response to a recommendation from 
a review panel, which was convened as required by the accountability 
measures when landings exceeded the ACT. The SSCs agreed with the 
review panel's recommendation to use a longer time series of landings 
(i.e., fishing years 1991/1992 through 2015/2016) to re-specify the OFL 
and ABC for spiny lobster. This resulted in the increase in the ACL and 
ACT implemented through this final rule. Regulatory Amendment 4 also 
states that a review panel should be convened if there are 2 
consecutive years of low landings (below 5.3 million lb). Thus, there 
are mechanisms in place to respond to changes in harvest and update the 
ACL as appropriate.
    Comment 3: The increase in spiny lobster ACL and prohibition of 
recreational harvest using traps will allow more commercial harvest of 
spiny lobster. This will have an economic impact on small business 
entities and therefore, as a result of increased commercial harvest, 
NMFS should prepare an initial regulatory flexibility act analysis 
(IRFA) to better address the economic impacts of these actions.
    Response: NMFS disagrees that it is necessary to prepare an IRFA. 
As stated in the Classification section of the proposed rule and again 
in this final rule, the increase in the ACL and ACT for spiny lobster 
will have no impact on small commercial fishing businesses because the 
AMs do not require a closure or otherwise limit commercial landings of 
spiny lobster taken from Federal waters if landings reach or exceed the 
ACL or ACT. Further, the majority of commercial harvest of spiny 
lobster occurs off Florida, and effort is limited by the number of trap 
tags issued by the state of Florida, commercial limits, and the length 
of the fishing season. Therefore, any reduction in the use of traps for 
recreational harvest is not expected to increase commercial harvest.
    Comment 4: NMFS should not prohibit the use of traps for 
recreational harvest in the EEZ off North Carolina. To avoid 
interaction of traps with whales, it would be better to close the 
recreational fishing season for spiny lobster in the EEZ off North 
Carolina during the whale migration period.
    Response: NMFS does not agree that a season restriction on the use 
of traps for recreational harvest is appropriate. Potential 
interactions between traps and protected species was one issue the 
Councils considered in deciding to prohibit the use of traps for 
recreational harvest in the EEZ off all of the South Atlantic states. 
However, the Councils were also concerned about bycatch and damage to 
habitat. Therefore, the Councils did not consider seasonal restrictions 
for recreational harvest of spiny lobster in Regulatory Amendment 4.
    Comment 5: NMFS should allow the use of traps for recreational 
harvest in the EEZ off Florida to make current spiny lobster 
regulations consistent in the EEZ off all the states in the South 
Atlantic region. The proposed rule did not include any evidence that 
the recreational sector is harming the resource or its habitat as a 
result of trap use.
    Response: NMFS disagrees that consistency in the regulations 
related to recreational harvest by traps should be achieved by allowing 
the use of traps in the EEZ off Florida. Consistency was not the basis 
for the Councils' decision to prohibit the use of this gear. Although 
current recreational harvest using traps in the EEZ outside Florida is 
likely minimal, the Councils were concerned that there could be an 
increase in the use of recreational traps and associated negative 
impacts. As discussed in Regulatory Amendment 4, trap gear can 
negatively affect the bottom substrate, entangle protected species, and 
continue ghost fishing when the trap is lost. Because the majority of 
spiny lobster harvest occurs in the EEZ off Florida, opening this area 
to recreational traps would be expected to increase these negatives 
impacts. In addition, because spiny lobsters are larger in the EEZ off 
Georgia, South Carolina, and North Carolina than in Florida, traps in 
those areas would require larger mouths (entrances) that would likely 
increase bycatch. Recreational harvest is still permitted with dive and 
snorkel gears, which are the predominant gears used by the recreational 
sector, and these gears do not have the same impact on habitat and 
other species as traps do.
    Comment 6: Commercial harvest of spiny lobster has fluctuated, 
while recreational harvest, a small part of overall harvest, has 
remained consistent. In order to protect the resource, there should be 
restrictions on

[[Page 29046]]

both the commercial and recreational sectors.
    Response: Restrictions are already in place for spiny lobster in 
place for both the commercial and recreational sectors, and this final 
rule will not remove these restrictions. Commercial and recreational 
bag and possession limits, and fishing seasons for spiny lobster are in 
place to control harvest. Any person who commercially fishes for and 
sells spiny lobster caught in either the Gulf or South Atlantic EEZ, 
except off Florida, must have a Federal spiny lobster vessel permit. 
Any person who commercially fishes for spiny lobster caught in the EEZ 
off Florida, or sells spiny lobster in Florida must have the permits 
and licenses required by Florida (http://www.myfwc.com/fishing/saltwater/commercial/spiny-lobster/). There are also requirements 
related to gear and vessel identification, and trap construction.

Changes From the Proposed Rule

    This final rule revises a reference to a boundary point coordinate 
for the Tortugas shrimp sanctuary in 50 CFR 622.55(c)(2)(iii), which 
incorrectly refers to paragraph (d)(1) rather than paragraph (c)(1).

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is consistent with Regulatory Amendment 4, the 
FMP, the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Magnuson-Stevens Act provides the statutory basis for this 
rule. No duplicative, overlapping, or conflicting Federal rules have 
been identified. In addition, no new reporting, record-keeping, or 
other compliance requirements are introduced by this final rule.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this final rule 
would not have a significant economic impact on a substantial number of 
small entities. The factual basis for this determination was published 
in the proposed rule and is not repeated here.
    One public comment (Comment 3) stated that the increase in 
commercial harvest would have an economic impact on small entities and 
therefore an IRFA analysis must be prepared. As stated in the 
Classification section of the proposed rule, although the rule would 
increase the ACL and ACT, there would be no impact on small commercial 
fishing businesses because there are no AMs that can either close the 
Federal season early or otherwise limit commercial landings of spiny 
lobster taken from Federal waters if landings reach or exceed the ACL 
or ACT.
    No changes were made to the final rule in response to public 
comments, and NMFS has not received any new information that would 
affect its previous determination. As a result, a final regulatory 
flexibility analysis is not required and none was prepared.
    The Assistant Administrator for NOAA Fisheries finds that with 
respect to the change to 50 CFR 622.55(c)(2)(iii) there is good cause 
to waive the requirements to provide prior notice and opportunity for 
public comment pursuant to the authority set forth in 5 U.S.C. 
553(b)(B), as such procedures are unnecessary. Such procedures are 
unnecessary because the rule implementing the provision has been 
subject to notice and comment and the revision corrects only a 
typographical error.

List of Subjects in 50 CFR Part 640

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

    Dated: June 18, 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 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.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

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.  622.55, revise paragraph (c)(2)(iii) to read as follows:


Sec.  622.55  Closed areas.

* * * * *
    (c) * * *
    (2) * * *

[[Page 29047]]

    (iii) Effective from May 26 through July 31, each year, that part 
of the Tortugas shrimp sanctuary seaward of rhumb lines connecting the 
following points is open to trawling: From point F, as specified in 
paragraph (c)(1) of this section, to point Q at 24[deg]46.7' N lat., 
81[deg]52.2' W long. (on the line denoting the seaward limit of 
Florida's waters); thence along the seaward limit of Florida's waters, 
as shown on the current edition of NOAA chart 11439, to point U and 
north to point T, both points as specified in paragraph (c)(2)(i) of 
this section.
* * * * *

0
5. 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
6. 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 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 1 hour 
after official sunset each day. No more than 50 undersized spiny 
lobsters plus 1 per trap aboard the vessel may be retained aboard for 
use as attractants.
* * * * *

0
7. 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.

[FR Doc. 2018-13400 Filed 6-21-18; 8:45 am]
BILLING CODE 3510-22-P