[Federal Register Volume 89, Number 105 (Thursday, May 30, 2024)]
[Rules and Regulations]
[Pages 46825-46829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11453]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 240520-0141]
RIN 0648-BM92


Fisheries of the Northeastern United States; Atlantic Coastal 
Fisheries Cooperative Management Act Provisions; American Lobster 
Fishery; Removal of American Lobster Effort Control Measures

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

ACTION: Final rule.

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SUMMARY: Following the Atlantic States Marine Fisheries Commission's 
(Commission) withdrawal of Lobster Conservation Management Area 2 and 3 
ownership caps and Area 3 maximum trap cap reductions from its 
Interstate Fishery Management Plan for American Lobster (Lobster Plan), 
this action

[[Page 46826]]

removes those requirements from Federal regulations and clarifies that 
all other measures included in the October 2, 2023, interim final rule 
(IFR) remain in effect. This action is intended to support the 
Commission's management of the lobster fishery and eliminate the 
potential for inconsistent State and Federal regulations that risk 
undermining management of the fishery and is necessary to ensure that 
fishery regulations for the lobster fishery in Federal waters remain 
compatible with the Lobster Plan and consistent with the Atlantic 
Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act).

DATES: As of July 1, 2024, the revision to Sec.  697.19(c) and (m) in 
amendatory instruction 6 of the IFR, 88 FR 67667, 67687-67679 (October 
2, 2023), is withdrawn.

ADDRESSES: You may request copies of the supplemental information 
report prepared for this action at: National Marine Fisheries Service, 
55 Great Republic Drive, Gloucester, MA 01930-2276 or by calling (978) 
281-9315. The supporting document is also accessible via the internet 
at: https://www.fisheries.noaa.gov/about/greater-atlantic-regional-fisheries-office or http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: 

Background

Statutory Authority

    These regulations modify Federal lobster fishery management 
measures in the Exclusive Economic Zone (EEZ) under the authority of 
section 803(b) of the Atlantic Coastal Act. This authority states that, 
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, from 3 
to 200 nautical miles offshore. The regulations must be: (1) compatible 
with the effective implementation of an Interstate Fishery Management 
Plan developed by the Atlantic States Marine Fisheries Commission; and 
(2) consistent with the National Standards set forth in section 301 of 
the Magnuson-Stevens Act. See 16 U.S.C. 5103(b)(1)(A) (establishing 
Secretary's authority to issue Federal regulations that are compatible 
with a coastal management plan and consistent with Magnuson-Stevens Act 
National Standards), 16 U.S.C. 1502(1) (defining ``coastal management 
plan'').

Purpose and Need for Management

    The purpose of this action is to manage the American lobster 
fishery to maximize resource sustainability, recognizing that Federal 
management occurs in concert with State management and compatibility 
between State and Federal measures is crucial to the overall success of 
American lobster management and required by the Atlantic Coastal Act. 
NMFS indicated that the agency could make changes to the IFR measures 
and requested comment on that possibility in the IFR, see 88 FR at 
67669; see also 87 FR 41084 (July 11, 2022) (proposed rule requesting 
comments on measures ultimately included in the IFR); 82 FR 52871 
(November 15, 2017) (advance notice of proposed rulemaking (ANPR) 
requesting comments on change to control date for trap limits in Areas 
2 and 3); 79 FR 4319 (January 27, 2014) (ANPR establishing control date 
and requesting comments). In light of public comments received and to 
achieve the purpose of the Atlantic Coastal Act, we are withdrawing the 
Area 2 and 3 ownership caps and Area 3 maximum trap cap reductions that 
we implemented in the IFR.

Management Measures

Area 2 and 3 Measures

    The IFR implemented ownership caps in Areas 2 and 3 and maximum 
trap cap reductions in Area 3, effective May 1, 2025. These measures 
complemented the Commission's Addenda XXI and XXII to Amendment 3 to 
the Lobster Plan, both of which were approved by the Commission in 
2013. The objective of these addenda was to scale the southern New 
England lobster fishery to the diminished size of the resource by 
addressing latent effort in the fishery and reducing trap limits in an 
attempt to control harvest to allow for potential stock rebuilding. A 
full description of those measures is included in the IFR and not 
repeated here.
    During the proposed rule (87 FR 41084, July 11, 2022) comment 
period, we received several comments stating that our management 
partners and industry needed additional time to understand these 
measures, consider them in the current context of the fishery, and 
provide adequate comment. We delayed implementation of the measures 
until May 1, 2025, while we accepted additional public comments on 
these measures as provided in the IFR, which indicated that we would 
consider any additional comments received and would, if necessary and 
appropriate, publish a subsequent rule to address any changes. See 88 
FR at 67669.
    On January 23, 2024, the Commission's Lobster Board withdrew its 
prior recommendation for implementation of Area 2 and 3 ownership caps 
and Area 3 maximum trap cap reductions, determining that these measures 
are no longer relevant in the current context of the fishery. On 
February 12, 2024, the Commission confirmed the decision of the Lobster 
Board in a letter to NMFS, citing numerous ways in which the fishery in 
these Areas has changed. The Commission noted that while the Addenda 
that originally called for the Area 2 and 3 measures attempted to 
prevent consolidation, the lag time between Commission approval and 
NMFS implementation has allowed for consolidation to occur, removing 
the need for these specific measures. In addition, the Commission 
expressed concern that the implementation of these measures would 
change how permits and traps will be bought and sold. The Commission 
also explained the economics of the fishery in these areas and changing 
operational needs of harvesters to maintain their businesses, citing 
increased costs, loss of fishing grounds due to other ocean uses, 
additional management measures on the American lobster fishery to 
reduce the risk to North Atlantic right whales posed by the fishery, 
and the evolution of the fishery in these areas from a lobster fishery 
to a mixed-crustacean fishery targeting both lobsters and Jonah crabs.
    The Atlantic Coastal Act provides that the Secretary ``may 
implement regulations'' affecting fisheries also regulated by the 
Commission if no fishery management plan exists pursuant to the 
Magnuson-Stevens Act and the regulations are ``compatible with the 
effective implementation of a coastal fishery management plan.'' 16 
U.S.C. 5103(b)(1)(A). Removing the Area 2 and 3 measures ensures that 
Federal regulations continue to complement the Commission's Lobster 
Plan. Further, this action will minimize confusion between State and 
Federal requirements. If we do not remove these Area 2 and 3 measures, 
there would be inconsistent State and Federal lobster regulations, 
potentially undermining management of the fishery.

Other Management Measures

    The IFR also implemented mandatory electronic harvester reporting 
requirements and corrections. This final

[[Page 46827]]

rule makes no changes to those measures, which have already become 
effective.

Comments and Responses

    As noted above, the IFR delayed implementation of certain measures 
and solicited public comment on them. The comment period ended on 
December 1, 2023. We received comments from 10 groups: The Atlantic 
Offshore Lobstermen's Association (AOLA), the Animal Welfare Institute, 
a group of environmental organizations, 6 members of the fishing 
industry, and 1 member of the public. Only comments that were 
applicable to the proposed measures are addressed below.
    Comment 1: AOLA stated that the Area 3 maximum trap reductions are 
inconsistent with the National Standards and are purely an economic 
reallocation, which is specifically prohibited; that the analysis in 
the environmental assessment did not rely on the best available 
science; and that the economic analysis was insufficient because it did 
not discuss impacts to crew, communities, shoreside employees, and 
owners.
    Response: The commenter's assertions are the same arguments made in 
AOLA v. Raimondo, an active lawsuit in the Federal Court for the 
District of New Hampshire. When developed, the IFR measures reflected 
the best scientific information available and appropriate consideration 
of economic and social impacts and was supported by the regulated 
community, including AOLA. However, NOAA is withdrawing the relevant 
measures because of changed circumstances in the fishery as articulated 
by the public and the Commission and because the maintaining the 
measures would create incompatibility between state and Federal 
management of the fishery.
    Comment 2: AOLA commented against the ownership caps and maximum 
trap cap reductions, stating that it is unlikely that the level of 
fishing necessary to harvest optimum yield could be maintained, as 
these measures seem to encourage the downsizing of offshore vessels.
    Response: The 2022 environmental assessment accompanying the IFR 
noted that it was difficult to predict industry response to these 
measures, specifically whether traps would be reduced or whether owners 
would attempt to transfer traps in an attempt to recoup costs. 
Likewise, it was difficult to assess how fishing practices would have 
changed. NOAA is withdrawing the Area 2 and 3 IFR measures because of 
changed circumstances in the fishery and the need for Federal 
regulations to be compatible with the Commission's Lobster Plan as 
discussed in the response to comment 1.
    Comment 3: AOLA stated that there is no justification for the Area 
3 measures, citing multiple reasons. First, the commenter asserted that 
the majority of fishing effort in Area 3 is on the Gulf of Maine/
Georges Bank stock, not the southern New England stock that these 
measures were intended to conserve. Second, the commenter cited 
economic impacts, predicting loss in profits and the potential for 
effort shifts. Third, the commenter discussed how Area 3 permit holders 
have appropriately scaled their businesses for their trap allocations 
and lack the ability to consolidate effort. Finally, the commenter 
stated that they are not aware of any concerns from the fishing 
industry about the existing level of consolidation in the fishery.
    Response: As discussed above, NOAA is withdrawing the Area 3 
measures because of changed circumstances in the fishery and the need 
for Federal regulations to be compatible with the Commission's Lobster 
Plan. On February 12, 2024, the Commission notified NOAA that the 
lobster fishery's circumstances had changed and that it no longer 
supported certain measures in the IFR. Accordingly, the purpose and 
need for the involved Federal measures no longer exists and NOAA is 
withdrawing those measures to avoid incompatibility with the Commission 
Lobster Plan. See 16 U.S.C. 5103(b)(1)(A).
    Comment 4: Environmental organizations indicated general support 
for measures that reduce risk to protected species. These organizations 
urged us to implement all possible measures as soon as possible and to 
continue the development of on-demand (or ropeless) gear to minimize 
risk from persistent vertical buoy lines.
    Response: NOAA takes its responsibilities to protect North Atlantic 
right whales seriously and has expended great effort and resources in 
doing so. Recent or ongoing efforts include: (1) continued trial and 
testing of on-demand gear, as facilitated by the approval of several 
exempted fishing permits and the Northeast Fisheries Science Center's 
on-demand gear library; (2) support of and participation on the New 
England Fishery Management Council's On-Demand Gear Conflict Working 
Group; (3) hosting various on-demand workshops in late 2023; and (4) 
the February 7, 2024, final rule (89 FR 8333) to close portions of 
Federal waters north of Cape Cod Bay to lobster fishing every year from 
February 1 through April 30 to protect right whales on their way to and 
from their feeding grounds in Cape Cod Bay. This February 7, 2024 final 
rule is currently in litigation. Our whale protection efforts are 
continuous and ongoing.
    Comment 5: A group of environmental organizations indicated that 
the maximum trap cap reductions will reduce trap fishing effort thus 
benefiting both the lobster stock, by reducing the number of traps 
fished, and whales, by reducing the number of associated fishing lines 
in the water.
    Response: The maximum trap cap reduction would have been unlikely 
to reduce the number of traps fished due to the Area 3 trap allocation 
and trap transfer program and the financial incentive for lobster 
businesses to maximize profits by transferring (selling) unused trap 
allocation. On March 27, 2003, we published a final rule (68 FR 14902) 
that established a program to set the total number of Area 3 traps per 
permit. On April 7, 2014, we published a final rule (79 FR 19015) that 
established a trap transfer program, allowing lobster businesses to 
transfer (sell) these allocated traps to other lobster businesses. 
These allocated traps remain an asset of the lobster permit regardless 
of the permit holder's ability to use any excess allocation created by 
the lowering of the Area 3 trap cap. In such a trap cap adjustment, 
there is economic incentive for a permit holder to transfer (sell) this 
now unusable excess allocation to a lobster business that can use it 
because their allocation is under the cap. Such a transfer would be 
subject to a 10-percent conservation tax, which somewhat decreases the 
overall Area 3 trap allocation with every transfer. Recent public 
commentary and debate at the Lobster Board, however, suggested that 
consolidation has already taken place in response to other management 
measures. Consequently, the actual result of the maximum trap cap 
reduction would be more of a redistribution than a reduction of trap 
allocation and, as such, the reduction in traps being fished, and the 
reduction of lines in the water, would have been expected to be 
minimal. For more detail on this issue, please see NOAA's Environmental 
Assessment, section 7.2.2, December 2022, as well as the Supplemental 
Information Report, section 6.
    Comment 6: A group of environmental organizations expressed 
surprise that comments submitted at the proposed rule stage of this 
rulemaking that referenced measures to reduce risk to North Atlantic 
right whales implemented by a September 17, 2021,

[[Page 46828]]

final rule (86 FR 51970) were described as not relevant to the action.
    Response: The purpose and need of the IFR was not to implement 
whale protection measures but rather to complement lobster management 
measures outlined in Addenda XXI, XXII, and XXVI to Amendment 3 to the 
Lobster Plan (see Lobster EA, section 1.0 Executive Summary--Purpose 
and Need (August 2022)). All of those Addenda pre-date the September 
17, 2021, final rule (86 FR 51970), some by as much as eight years. As 
such, the IFR did not implement protections for the North Atlantic 
right whale pursuant to the Marine Mammal Protection Act. Instead, the 
IFR was promulgated under the Atlantic Coastal Act, which mandates that 
Federal lobster regulations be compatible with the Commission's Lobster 
Plan and requires the withdrawal of the IFR that we are announcing 
today.
    Comment 7: Two environmental organizations supported the IFR, 
requesting whale protection measures to be put into place as soon as 
possible. One of the organizations indicated that industry has had 
ample time to understand and come into compliance with these 
requirements.
    Response: Similar to comment 6, this comment conflates NOAA's whale 
protection efforts and rulemakings with this rulemaking, which 
implements the agency's responsibilities pursuant to the Atlantic 
Coastal Act. The purpose of the IFR was to implement lobster management 
measures outlined in Addenda XXI, XXII and XXVI. The Commission, 
however, rescinded their request for us to implement these measures by 
vote on January 23, 2024, and by letter to NOAA on February 12, 2024. 
We are likewise rescinding the Federal regulations to ensure 
compatibility with the Commission's Lobster Plan as required by the 
Atlantic Coastal Act. Management measures for the purposes of reducing 
the risk from lobster fishing on protected species are implemented 
through other processes, as described in the response to comment 4. 
Whether the affected industry had sufficient time to comply with this 
action is moot, given that, for the reasons stated above, we are 
removing these requirements.
    Comment 8: One member of the fishing industry stated that the Gulf 
of Maine/Georges Bank stock remains at high levels of abundance and not 
in need of trap reductions. That industry member also stated that there 
is no evidence that reducing fishing effort of the Gulf of Maine/
Georges Bank lobster stock will address the deterioration of the 
southern New England lobster stock. Another member of the industry 
stated that these measures are unnecessary, as juvenile and egg-bearing 
female lobster are abundant on Georges Bank.
    Response: The best available science from the 2020 benchmark stock 
assessment indicates that the Gulf of Maine/Georges Bank stock remains 
in favorable condition based on the reference points. The 2020 
assessment concluded that the stock is not depleted and overfishing is 
not occurring, though more recent information made available since both 
the assessment and the publication of the interim final rule indicates 
a decline in recruit abundance, triggering other management actions for 
those fishing on the Gulf of Maine/Georges Bank stock. The decision 
whether to apply Area 3 measures to all of Area 3 (i.e., harvesters 
fishing on both the Gulf of Maine/Georges Bank and southern New England 
lobster stocks), was debated and decided upon by the Lobster Board. 
Draft Addendum XXI, released for public comment in May 2013, included 
options for a southern New England permit designation, which would have 
allowed for the trap reductions to only apply to harvesters fishing on 
the southern New England stock. The Lobster Board did not select permit 
designations as a final management measure, thus applying management 
measures to the entirety of Area 3, including the portion of Area 3 
that fishes on the Gulf of Maine/Georges Bank lobster stock. We 
proposed and implemented these measures based on the Commission's 
original request for complementary measures in Federal waters. Given 
their more recent request to withdraw the measures, we are now acting 
accordingly.
    Comment 9: One member of the fishing industry contends that the 
declines of the southern New England stock are being driven by climate 
change, not overfishing or excessive fishing pressure, as supported by 
the action's environmental assessment. Further, the member of the 
fishing industry stated that we did not establish an adequate link 
between fishing effort and stock depletion.
    Response: The best available science suggests that environmental 
factors are a significant factor in the decline of the southern New 
England stock. The 2020 American Lobster Benchmark Stock Assessment 
made major advances in considering the impact of changing environmental 
conditions on lobster population dynamics. Environmental factors 
contributed to the assessment's analysis of regime shifts and 
associated thresholds by which stock health is now measured. While this 
information was not directly discussed in the environmental assessment, 
it was the foundation for stock status discussed in section 6.2.3 of 
the environmental assessment. While not available to the Commission 
during the development of Addenda XXI and XXII, a 2016 American Lobster 
Technical Committee analysis suggests that, despite overfishing not 
occurring, stabilization of the southern New England lobster stock was 
only possible with a reduction in exploitation. This analysis thus 
links fishing effort and recovery of the southern New England lobster 
stock.
    Comment 10: One member of the fishing industry stated that the 
analysis included in the environmental assessment was out of date, as 
it relied on the Atlantic States Marine Fisheries commission's 2009 and 
2015 benchmark American lobster stock assessments.
    Response: The environmental assessment accompanying the IFR made 
reference to several recent benchmark American lobster stock 
assessments. At the time the Commission considered and approved Addenda 
XXI and XXII, the 2009 stock assessment was considered the best 
available science. Since that time, the 2015 and 2020 assessments have 
confirmed the continued downward trend in the southern New England 
lobster stock. Section 6.2.3 of the environmental assessment 
accompanying the IFR which discusses stock status, uses the best 
available scientific information from the 2020 benchmark stock 
assessment.
    Comment 11: Five members of the fishing industry commented in 
opposition to the Area 3 measures, citing changes to the fishery over 
the last 10 years and financial issues. Two industry members stated 
that these regulations will create inefficiencies for current fishery 
participants, with one arguing that these measures would be detrimental 
to owners with multiple vessels. A third industry member suggested 
freezing the number of traps at current levels. Other commenters cited 
the increased cost of fuel and bait, previous investments made to 
maintain higher allocations following the 2016-2020 trap reductions, 
and the difficulty of paying and retaining crew members.
    Response: We agree with the commenters that imposing the IFR 
measures could have had some negative impacts to Area 3 harvesters, 
although we assessed them as slight in the short term when the IFR was 
released. See 88 FR at 67674-67675. We acknowledge that each business 
is different, thus impacts are not uniform, with some businesses 
potentially being more affected by the measures than others. As

[[Page 46829]]

discussed in the response to comment 5, the environmental assessment 
acknowledged that permit holders may respond to these measures 
differently, by either selling off or redistributing traps. Following 
requests during the proposed rule comment period, we provided 
additional time for management partners and industry to understand 
these measures, consider them in the current context of the fishery, 
and provide additional comment. Comments by these and other commenters 
and the recommendation from the Commission confirm that the fishery has 
changed, and these measures no longer make sense, resulting in the 
Commission's withdrawal of these measures. We are now withdrawing the 
Area 3 measures because of changed circumstances in the fishery and the 
need for Federal regulations to be compatible with the Commission's 
Lobster Plan. As part of its recommendation to withdraw these measures, 
the Commission stated that it also intends to evaluate potential 
replacement measures. We intend to support the Commission during that 
process.
    Comment 12: One industry member and one fishery organization stated 
that the economic impacts in the environmental assessment were 
underestimated. In particular, the fishery organization questioned our 
assumption of a 5-percent profit loss when the Area 3 maximum trap cap 
reduction may affect up to 18 percent of Area 3 traps.
    Response: Based on the input received from comments and the Lobster 
Board and discussed in greater detail in response to comment 5, 
consolidation at some level had already taken place. Additional input 
received indicated that permit holders would be likely to sell traps 
through the trap transfer program to recoup individual losses. At the 
fishery level, nearly the same number of traps could be expected to be 
fished, resulting in similar landings and, therefore, revenue for the 
fishery overall. That said, as discussed in response to other comments 
above, given the Commission's more recent request to withdraw the 
measures, we are now rescinding the Federal regulations to ensure 
compatibility with the Commission's Plan.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Atlantic Coastal Fisheries Cooperative 
Management Act, applicable provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act, and other applicable law. The agency 
finds public comment is unnecessary under the Administrative Procedure 
Act. See 5 U.S.C. 553(b)(B). The Atlantic Coastal Act requires Federal 
regulations to be ``compatible with the effective implementation of a 
coastal fishery management plan,'' 16 U.S.C. 5103(b)(1)(A), and 
following the Commission's modification of the Lobster Plan, the only 
regulatory option to ensure the regulations are compatible with the 
revised plan is to maintain the status quo, i.e., to withdraw the 
relevant provisions of the IFR. If those provisions were to go into 
effect, the result would be inconsistent management of State and 
Federal waters, creating confusion for the regulated industry and 
potential harm to the resource. Moreover, the public has had multiple 
opportunities to comment on the relevant measures, see 88 FR at 67669 
(IFR), 87 FR 41084 (proposed rule), 82 FR 52871 (ANPR), 79 FR 4319 
(ANPR), and has done so.
    This final rule has been determined to not be significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this action and described in the IFR. The FRFA incorporated the initial 
regulatory flexibility analysis (IRFA), a summary of the significant 
issues raised by the public comments in response to the IRFA and NMFS 
responses to those comments, and a summary of the analyses completed to 
support the action. The IRFA and FRFA analyzed the suite of measures 
considered during this rulemaking, including actions that minimize 
impacts to small entities. Therefore, the analysis included in the FRFA 
remains valid. This final rule would remove some of the measures in the 
IFR, and will, therefore, reduce the overall costs of this action.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, letters to permit holders that also serves as 
this small entity compliance guide were prepared at both the interim 
final rule and this final rule stage. Copies of these guide and this 
rule are available upon request from the Greater Atlantic Regional 
Office (see ADDRESSES), and the guide/permit holder bulletin will be 
sent to all holders of lobster permits.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: May 20, 2024.
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 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. 1501 et seq.

0
2. Effective July 1, 2024, NMFS withdraws amendatory instruction 6 of 
the interim final rule published at 88 FR 67667, on October 2, 2023.

[FR Doc. 2024-11453 Filed 5-29-24; 8:45 am]
BILLING CODE 3510-22-P