[Federal Register Volume 77, Number 106 (Friday, June 1, 2012)]
[Rules and Regulations]
[Pages 32420-32432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13352]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No.110722404-1073-02]
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: Final rule.

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SUMMARY: With this final rule, NMFS implements new Federal American 
lobster regulations that will limit entry into the lobster trap fishery 
in Lobster Conservation Management Area 1 (Area 1), located in the 
Federal inshore waters of the Gulf of Maine. Eligibility will be based 
on specific eligibility criteria designed to identify active Federal 
Area 1 lobster trap permits. If a permit meets the eligibility 
criteria, the permit holder will be authorized to fish in the Federal 
waters of Area 1 with up to 800 lobster traps. The 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 (ISFMP, Lobster Plan).

DATES: This final rule is effective July 2, 2012.
    Applicability Dates: Applications for Area 1 Lobster trap fishery 
eligibility are due by November 1, 2012. Eligibility decisions will 
become effective no earlier than the start of the 2013 Federal lobster 
fishing year which begins May 1, 2013; however, those who submit an 
application prior to September 1, 2012, will be assured, to the extent 
practicable, of a final decision on their eligibility in time for the 
2013 Federal lobster fishing year.

ADDRESSES: Copies of the American Lobster Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this regulatory action are available upon written 
request to Robert Ross, Supervisory Fishery Policy Analyst, Sustainable 
Fisheries Division, NMFS, 55 Great Republic Drive, Gloucester, MA 
01930, telephone (978) 281-9234. The documents also are available 
online at http://www.nero.noaa.gov
    You may submit written comments regarding the burden-hour estimates 
or

[[Page 32421]]

other aspects of the collection-of-information requirements contained 
in this final rule to the mailing address listed above and by email to 
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Policy Analyst, 
phone (978) 281-9144, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: This action will limit access to the lobster 
trap fishery in the Federal waters of Area 1 by employing qualification 
criteria similar to those recommended by the Area 1 Lobster 
Conservation Management Team (LCMT) and by the Commission's Lobster 
Board in Addendum XV to Amendment 3 of the Commission's Plan (Addendum 
XV). Specifically, interested applicants will be required to show proof 
of the following three criteria: (1) Proof that they possess an active 
Federal lobster permit; (2) proof that the permit contained an Area 1 
trap designation during the 2008 fishing season (May 1, 2008-April 30, 
2009); and (3) proof that at least one Area 1 trap tag was purchased 
under the involved permit during any one of the 2004-2008 fishing 
years. Interested applicants must apply to NMFS for access on or before 
November 1, 2012.

Statutory Authority

    These regulations will 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 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 this action is to manage the American lobster 
fishery in a manner that maximizes resource sustainability, recognizing 
that Federal management occurs in concert 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 Lobster Plan seeks to limit entry into 
the Federal 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 under the 
Commission Plan. 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 from other areas, and a shift of non-
trap fishing effort in Area 1 to trap fishing effort, potentially 
flooding Area 1 with new fishers, upsetting local lobster stock 
stability, 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 published this final rule to 
cap and control lobster trap fishing effort in Area 1 in support of 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 LCMT, an advisory group composed 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. 
They were also concerned that restrictions in other fisheries may lead 
permit holders who fish for lobster with non-trap gear to convert to 
trap fishing in Area 1. 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 will 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 
moving 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 will be needed to restrict 
the movement 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

[[Page 32422]]

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.

Description of the Public Process

    The actions set forth in this final rule have undergone extensive 
and open public notice, debate, and discussion both at the Commission 
and Federal levels.

1. Commission Public Process

    Typically, this public discussion of a potential Federal lobster 
action begins within the Commission process. Specifically, the 
Commission's Lobster Board often charges its Plan Development Team or 
Plan Review Team--sub-committees of the Lobster Board--to investigate 
whether the existing ISFMP needs to be revised or amended to address a 
problem or need, often as identified in a lobster stock assessment. The 
Plan Review and Plan Development Teams are typically comprised of 
personnel from state and Federal agencies knowledgeable in scientific 
data, stock and fishery condition, and fishery management issues. If a 
team or teams conclude that management action is warranted, it will so 
advise the Lobster Board, which would then likely charge the LCMTs to 
develop a plan to address the problem or need. The LCMTs--most often 
comprised of industry representatives--will conduct a number of 
meetings open to the public wherein they will develop a plan or 
strategy, i.e., remedial measures, in response to the Lobster Board's 
request. The LCMTs then vote on the plan and report the results of 
their vote back to the Lobster Board. Minutes of the LCMT public 
meetings can be found at the Commission's Web site at http://www.asmfc.org under the ``Minutes & Meetings Summary'' page in the 
American lobster sub-category of the Interstate Fishery Management 
heading.
    After receiving an LCMT proposal, the Commission's Lobster Board 
will often attempt to seek specialized comment from both the Lobster 
Technical Committee and Lobster Advisory Panel before the proposal is 
formally brought before the Board. The Technical Committee is comprised 
of specialists, often scientists, whose role is to provide the Lobster 
Board with specific technical or scientific information. The Advisory 
Panel is a committee of individuals with particular knowledge and 
experience in the fishery, whose role is to provide the Lobster Board 
with comment and advice. Minutes of the Technical Committee and 
Advisory Panel meetings can be found at the Commission's Web site at 
http://www.asmfc.org under the ``Minutes & Meetings Summary'' page in 
the American lobster sub-category of the Interstate Fishery Management 
heading.
    After receiving sub-committee advice, the Lobster Board debates the 
proposed measures in an open forum whenever the Board convenes (usually 
four times per year, one time in each of the spring, summer, fall, and 
winter seasons). Meeting transcripts of the Lobster Board can be found 
at the Commission's Web site at http://www.asmfc.org under ``Board 
Proceedings'' on the ``Minutes & Meetings Summary'' page in the 
American lobster sub-category of the Interstate Fishery Management 
heading. These meetings are typically scheduled months in advance and 
the public is invited to comment at every Board meeting. In the 
circumstance of an addendum, the Board will vote on potential measures 
to include in a draft addendum. Upon approving a draft addendum, the 
Lobster Board will conduct further public hearings on that draft 
addendum for any state that so requests. After conducting the public 
hearings, the Lobster Board will again convene to discuss the public 
comments, new information, and/or whatever additional matters are 
relevant. After the debate, which may or may not involve multiple 
Lobster Board meetings, additional public comment and/or requests for 
further input from the LCMTs, Technical Committee and Advisory Panel, 
the Lobster Board will vote to adopt the draft addendum, and if 
applicable, request that the Federal Government implement compatible 
regulations.
    The need for the Federal action, in this case, is based on concerns 
by the Area 1 lobster trap industry and the Commission, that unchecked 
lobster trap fishing effort in Area 1 could result in a migration of 
Federal lobster permits into Area 1. Additionally, there was concern 
expressed by the Area 1 LCMT and the Commission that lobster fishermen 
with Federal non-trap gear permits may opt to transition into the 
lobster trap fishery due to management restrictions in other Federal 
fisheries, such as the groundfish fishery. Although the number of 
Federal lobster trap permits in Area 1 has remained stable over the 
past decade, potential for effort shift exists. Area 1 was, until the 
publication of this rule, the only lobster management area in the 
Commission's Lobster Plan that was open to all lobster permits for 
lobster trap fishing. As other areas become restricted, those permits 
that do not qualify for trap fishing can be purchased and relocated to 
Area 1. Further, the most recent stock assessment in 2009 indicated 
that although the Gulf of Maine lobster stock was in favorable 
condition, increases in fishing effort could de-stabilize the fishery.
    The Area 1 LCMT held several public meetings in Maine and New 
Hampshire during 2007 and 2008 to discuss the issue and to develop 
eligibility criteria. Their proposal was forwarded to the Commission's 
Lobster Board as the basis of Addendum XV. Addendum XV was the topic of 
several public meetings prior to its approval by the Commission in 
2009.

2. Federal Public Process

    Since the transfer of Federal lobster management in December 1999 
from the Magnuson-Stevens Act, with its Federal Fishery Management 
Councils, to the Atlantic Coastal Act, with the Commission, Federal 
lobster action has typically been undertaken in response to a 
Commission action.
    The development of this current rulemaking began in 2008 as the 
Commission's Lobster Management Board began discussing measures to cap 
lobster trap fishing effort in Area 1 through the development of 
Addendum XV. The Commission recommended that NMFS publish a control 
date for potential use as a cut-off date in determining continued 
eligibility for Federal lobster permits in Area 1. Consequently, NMFS 
published an Advance Notice of Proposed Rulemaking (ANPR) in the 
Federal Register on January 2, 2009. The ANPR notified the public that 
NMFS was considering a limited entry program for the Area 1 lobster 
trap fishery and that the ANPR publication date could be used as a 
control date for that purpose. The Commission adopted the ANPR 
publication date as a control date in Addendum XV along with other 
eligibility criteria for use in determining Federal permits that are 
considered active trap permits. Addendum XV recommended that NMFS take 
action to cap the number of Federal lobster trap permits in Area 1 
using methods which are compatible with those set forth in Addendum XV.
    NMFS published a proposed rule on November 18, 2011 (76 FR 71501). 
In the proposed rule NMFS recommended liberalizing the eligibility 
period to the entire 2008 fishing year (May 1, 2008-April 30, 2009). We 
received numerous

[[Page 32423]]

public comments in response to the proposed rule, some of which 
supported liberalizing the criterion (including the state agencies and 
Commission), and none of which opposed the liberalization. Comments and 
responses to the proposed rule are set forth later in this final rule 
(see Comments and Responses).
    NMFS prepared a draft Environmental Assessment (EA) in support of 
its proposed rule. The draft EA analyzed a status quo alternative; an 
alternative that employed the Commission's Addendum XV eligibility 
criteria, including the January 2, 2009, control date; and a third 
alternative which liberalized the eligibility period to include the 
entire 2008 fishing year (May 1, 2008 to April 30, 2009), rather than 
the shorter period offered under the Commission's criteria. The draft 
EA was made available to the public in November 2011 when the proposed 
rule was published.

Final Rule

    This final rule adopts the qualification measures identified in the 
proposed rule. At the time of the proposed rule, the draft EA (now 
final) showed that 1,643 Federal lobster permits will likely qualify 
under this action. Of this total, approximately 32 qualifiers would 
benefit from the extension of the qualification cut-off date to the 
entire 2008 fishing year. 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. 
According to the draft and final EA, of the 3,152 Federal lobster 
permits in existence, 1,509 permit holders will 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.
    As previously stated in the proposed rule, this final rule requires 
that all qualification applications must be submitted by November 1, 
2012. Late applications will not be considered. In order to more 
speedily process applications, NMFS encourages that applicants not wait 
until fall 2012 to apply. As such, NMFS seeks to alert potential 
applicants that the agency will be able to render decisions before the 
close of the 2012 calendar year on all applications submitted on or 
before September 1, 2012.
    To further assist in the application process, NMFS will attempt to 
exempt permit holders from having to gather and submit documentary 
proof of their qualification criteria if NMFS already has the proof in 
its databases. NMFS expects that it already possesses proof of the 
qualification criteria in its databases for the majority of expected 
applicants. In such cases, NMFS will notify potential applicants that 
they need only apply for access, but that they do not need to submit 
proof of the qualification criteria along with the application. In some 
circumstances, however, NMFS does not already possess proof that the 
applicant meets the qualification criteria. In these situations, 
potential applicants will be required to provide such proof themselves 
along with their application. The regulatory text of this final rule 
contains more information on the type of documentary proof required. 
All Federal lobster permit holders will maintain the opportunity to 
elect Area 1 for trap gear on their 2012 Federal fisheries permit while 
NMFS is receiving and processing applications. The 2012 Federal fishing 
year began on May 1, 2012. All those who elect Area 1 on the 2012 
Federal fisheries permit will be able to fish with traps in Area 1 for 
the entire 2012 fishing year, even if their application for continued 
access to the Area 1 lobster trap fishery is denied before the end of 
the 2012 fishing year. In other words, NMFS's Area 1 trap eligibility 
decisions will not become effective until the 2013 Federal fishing 
year, on May 1, 2013. For the 2013 Federal fishing year, those whose 
applications are approved will be able to elect Area 1 for trap gear on 
their Federal lobster permit and fish in the Federal waters of Area 1 
with traps. Those whose applications for Area 1 eligibility are denied 
will not be eligible to elect Area 1 for trap gear on their 2013 
Federal fisheries permit and may no longer fish with traps in the 
Federal waters of Area 1; however, they will maintain their Federal 
limited access lobster permits and may fish for lobster in Federal 
waters, including the Federal waters of Area 1, with non-trap gear. 
Individuals who have been denied access, but who have appealed, may be 
allowed to use trap gear in Area 1 during the pendency of the appeal 
subject to the discretionary approval of the Regional Administrator. 
This appeals process is set forth in detail in the Regulatory Text of 
this final rule. If an application is still under initial review when 
the permit renewal period begins for the 2013 fishing year (permit 
applications are normally sent out in February or March in advance of 
the new fishing year start date of May 1), the permit holder may be 
authorized to designate Area 1 for trap gear on the 2013 Federal 
fisheries permit while the application is under review.

Comments and Responses

    The proposed rule solicited public comments through January 3, 
2012. During the comment period, NMFS received comments from 18 persons 
and entities, which are broken down as follows: One from the 
Commission; three from the states of Massachusetts, New Hampshire, and 
Maine; two from Area 1 lobstermen's associations (Massachusetts 
Lobstermen's Association and Maine Lobstermen's Association); two from 
private stakeholder groups (the Humane Society of the United States and 
the New Jersey Council of Diving Clubs); six from Area 1 fishermen; and 
four from private citizens. Of that total, 11 comments supported the 
proposed rule; 3 comments were neither in support or opposition of the 
Area 1 Limited Entry Program; and 4 opposed the Area 1 Limited Entry 
Program. Some persons and entities made multiple comments in a single 
response. The specific comments and our responses are as follows.
    Comment 1: Eleven individuals and entities--including the 
Commission, state governments, Lobstermen's Associations, and three 
Area 1 lobstermen--supported the Area 1 limited entry program proposal 
set forth in the proposed rule.
    Response: NMFS agrees that the proposed rule, now final, will 
provide the best means of capping trap fishing effort in the Federal 
waters of Area 1 and that it is well designed to prevent trap fishing 
effort from increasing in the Federal waters of Area 1. The final rule 
is substantially identical to the lobster industry's proposal and 
Commission recommendations set forth in Addendum XV and will allow NMFS 
to act in such a way that not only satisfies Federal statutory 
mandates, but that also allows NMFS to support the Commission's ISFMP 
for American lobster in a coordinated fashion.
    Comment 2: An Area 1 fisherman supported the proposal for an Area 1 
Limited Entry Program in the Federal waters of Area 1 due to the 
increased regulations in other lobster management areas (such as Area 2 
and the Outer Cape Cod Lobster Management Areas) and because of 
increased regulations in other fisheries (such as new regulations, 
including sector management in the groundfish fishery). As a result, 
there

[[Page 32424]]

exists great potential and incentive for trap fishing effort to be re-
directed into Area 1.
    Response: NMFS agrees and notes that this potential scenario for 
trap effort shift into Area 1 provided the genesis for industry's Area 
1 proposal in Commission Addendum XV. NMFS analyzed this potential 
threat in its EA and agrees that the potential for effort shift is real 
and that it could potentially flood the Area 1 trap fishery with new 
fishers, therein upsetting local lobster stock and fishery stability, 
and undermining existing social and cultural lobster fishing 
traditions. This issue is discussed in more detail in the Purpose and 
Need for Management section and Background section of this final rule.
    Comment 3: One respondent supported the proposed rule's Area 1 
Limited Entry Program, but also recommended increasing the legal size 
limit for lobsters and reducing the standard trap allocation for each 
vessel from 800 traps to 600 traps to prevent overfishing.
    Response: NMFS is implementing the Area 1 limited entry program as 
described in this final rule. NMFS is not implementing lobster size and 
trap reductions in this rule. Lobster size limitations and trap 
restrictions currently exist in Area 1 and remain a management tool 
that could be modified in the future if scientists, stakeholders, and 
managers believe it appropriate. At present, however, such limitations 
and restrictions are not within the scope of this final rule.
    Comment 4: The Maine Department of Marine Resources, while strongly 
supporting the Area 1 limited entry program as set forth in the 
proposed rule, recommended that we make the eligibility decisions early 
enough to simplify the issuance of 2013 lobster trap tags by the State.
    Response: The final rule timeline attempts to allow for good 
coordination between the states and the Federal Government. In response 
to Maine's recommendation, we adjusted our program to offer an 
incentive to lobster permit holders to apply early to allow more 
eligibility review time and improve the chances of finalizing all the 
eligibility determinations prior to the start of the 2013, fishing 
year. As such, permit holders who submit an application prior to 
September 1, 2012, will be given priority review, with the intent of 
providing them with a final eligibility decision, to the extent 
practicable, in time for the 2013, fishing year which begins on May 1, 
2013.
    The application timeline should allow NMFS to make most application 
decisions in time to coordinate with Maine and other involved states 
before the states' fishing year begin in earnest. This final rule will 
allow applicants to apply for entry into the Area 1 trap fishery almost 
immediately upon the publication of this rule and subsequent 
solicitation of applications by NMFS. Although permit holders will have 
until November 1, 2012, to apply, NMFS is offering an incentive to 
permit holders who apply on or before September 1, 2012--namely, that 
the agency will make every effort to make a decision on that permit 
holder's application in 2012 if the application is received on or 
before September 1, 2012. Accordingly, NMFS expects that most Area 1 
application decisions will be made before January 1, 2013. In addition, 
because the results of NMFS's application decisions will not take 
effect until May 1, 2013 (the start of the Federal fishing year), and 
because January, February, and March are the least active lobster 
fishing months, NMFS anticipates having sufficient time, prior to the 
start of the fishing season and the Federal fishing year, to coordinate 
with the states over the qualification results.
    Comment 5: One state agency suggests that NMFS utilize the relevant 
data on-hand to make a determination on each permit's Area 1 
eligibility and then simply notify permit holders and inform them as to 
whether or not they are qualified to fish with traps in the Federal 
waters of Area 1. A different state agency expressed concern that 
automatic qualification would qualify permits that have since left the 
Area 1 trap fishery and thus create incentive for effort shift back 
into Area 1.
    Response: While NMFS does not intend to automatically qualify 
permit holders, the final rule authorizes the Regional Administrator, 
at his or her discretion, to waive documentary obligations for certain 
elements of the qualification criteria for an applicant if NMFS itself 
has clear and credible evidence that will satisfy that qualification 
criteria for the applicant, as explicitly stated in the regulatory text 
in this final rule.
    Nevertheless, this final rule requires potential applicants to 
affirmatively apply for entry. In choosing this application procedure, 
NMFS seeks a balance. Although there would be no burden to the permit 
holder were NMFS to automatically determine the eligibility of each 
permit, NMFS does not think it overly burdensome for otherwise 
qualified permit holders to fill out the one-page application form by 
checking the appropriate box, signing the application, and mailing it 
to NMFS. NMFS is reluctant to automatically qualify permit holders into 
the Area 1 trap fishery because some of those qualifiers might have no 
interest in fishing in Area 1. NMFS is aware that there are some 
permits with qualified history that, for whatever reason, are either 
inactive or have been sold out of the Area 1 trap fishery. 
Automatically qualifying permits that are no longer in the Area 1 trap 
fishery and have no interest in fishing in Area 1 will increase latent 
effort by allowing the automatic re-introduction of effort into the 
fishery that may have migrated elsewhere, which does not advance the 
overall spirit of the Lobster Plan's Area 1 Limited Entry Program. As a 
result, the final rule application procedure requires some effort, 
albeit minimal, for an otherwise qualified applicant, but advances the 
overall objectives of the Area 1 Limited Entry Program better than if 
NMFS were to automatically qualify individuals.
    Comment 6: An Area 1 fisherman commented on whether he will be able 
to buy a Federal lobster permit after 2012; and if a person bought a 
permit in 2011, will they be able to use it after 2012?
    Response: The final rule limits Area 1 trap fishing access to 
permits that have a certain history of Area 1 trap fishing. Any Federal 
lobster permit holder who wishes to fish for lobster with traps in Area 
1 beginning May 1, 2013, must submit an application under this program 
prior to November 1, 2012, and be deemed eligible for future 
participation in the Area 1 lobster trap fishery. If the purchased 
permit's fishing history meets the criteria set forth in this final 
rule, then it would qualify and an individual would be able use it to 
fish with traps in the Federal waters of Area 1 on May 1, 2013, when 
the rule takes effect. If the purchased permit's history does not meet 
the rule's criteria, then a person would not be able to use it to fish 
with traps in Area 1 as of May 1, 2013. Such a permit, however, would 
still authorize lobster fishing in Area 1 without traps. Finally, the 
rule does not regulate, much less restrict, the purchase, sale, or 
transfer of those permits.
    Comment 7: The Humane Society stated that the Area 1 800-trap limit 
may lead to excessive vertical lines in the water that pose a threat to 
endangered large whales. This commentator suggests that NMFS coordinate 
internally with its Protected Resources Division to reduce traps and 
thus further reduce vertical lines in the water.
    Response: NMFS staff has coordinated internally regularly 
throughout this

[[Page 32425]]

rulemaking process. Although reducing vertical lines is not the purpose 
of this final rule and is beyond its scope, NMFS is and has been very 
much aware of the Protected Resources Division's efforts in this 
regard, and NMFS's EA suggests that the Area 1 limited entry program 
will have some ancillary, albeit unquantifiable, benefits to whales, 
threatened, and endangered species.
    Comment 8: The New Jersey Council of Diving Clubs recommended that 
the Area 1 Limited Entry Program should pertain to commercial fishermen 
and not divers who are recreational fishermen. Further, the respondent 
commented that unless the Area 1 lobster population shows a decline, 
then a limited entry program should not be put in place due to economic 
complications and unfairness. Finally, the respondent commented that 
the potential effort restrictions on the southern New England stock 
should apply only to Area 2 (nearshore EEZ from southern Massachusetts 
to Rhode Island), and Area 6 (Long Island Sound), because those are the 
only areas that have shown a decline due to environmental conditions.
    Response: The final rule applies to all Federal lobster permit 
holders who fish with traps. As such, it is not anticipated to impact 
divers and it in no way suggests, as the respondent was concerned, that 
trap fishing is the only allowable way to catch lobster. The rule 
itself was originated from the Area 1 lobster trap fishing industry 
specifically because they did not want to wait until they were in the 
midst of decline before protecting their fishery. The genesis and 
rationale of the rule are discussed in greater detail in the 
Supplementary Information section of this final rule. The southern New 
England lobster stock problem is the subject of ongoing deliberation 
and development of mitigation measures by the Commission and is beyond 
the scope of this present rulemaking.
    Comment 9: One respondent opposes the Area 1 limited entry program 
in the Federal waters of Area 1 on grounds that it may limit the 
environmental, economic, and social significance of lobster in Maine. 
The respondent commented that the impact on small quantity lobster 
catchers could have a big impact on small businesses in the area and 
recommends that the fishery remain unregulated and trap levels 
increased.
    Response: It is for those very reasons--i.e., the environmental, 
economic, and social significance of lobster in Maine--that the Area 1 
trap lobster fishery requested that the Commission, and thereafter 
NMFS, cap trap fishing effort and implement this final rule. 
Specifically, many members of the Area 1 lobster trap fishery became 
concerned that restrictions in other fisheries (e.g., restrictions in 
other lobster management areas and restrictions in other commercial 
fisheries, like groundfish) might squeeze new trap effort into Area 1. 
This new trap fishing effort could have the potential to upset local 
lobster stock stability, and undermine existing social and cultural 
traditions. NMFS analyzed the final rule's potential impact on small 
businesses and concluded that the rule would not have a significant 
impact, largely because this rule is expected to maintain the existing 
economic structure of the fishery. In other words, those who fished for 
lobster with traps in Area 1 in the past are expected to qualify to 
fish for lobsters with traps in the future. These economic impacts are 
discussed in greater detail in this final rule in the section entitled 
``Economic Impacts of the Proposed Rule on Small Entities.'' NMFS 
disagrees with the respondent's statement that the fishery is 
unregulated--with or without this rule, the lobster fishery is and 
would remain highly regulated. In fact, lobster has been regulated for 
well over a century--regulations prohibiting the harvest of egg-bearing 
lobsters (similar to present regulations) date back to 1872. The 
respondent gives no reason in support of her suggestion to increase 
trap levels, which would, in any case, be beyond the scope of this 
particular rule.
    Comment 10: One lobsterman stated that the economy is not good and 
that the proposed rule could impact local economies by putting people 
out of business.
    Response: NMFS has taken a hard look at the LCMT's and Lobster 
Board's recommended criteria and concluded that its economic impacts 
should be minimal. As a preliminary matter, NMFS analysis suggests that 
the number of permits actively fishing with traps in Area 1 has 
remained relatively static from 2000 to 2010, including during the 2008 
Federal fishing year, which is one of the criteria. As such, the 
analysis confirms that the LCMT and Lobster Board criteria did not 
focus on an anomalous year or capture aberrant data in its proposal. 
Accordingly, although there may be a few individual instances where a 
specific permit was active one year but not the next, the data suggests 
that most of the Area 1 permit holders who fished with traps in the 
recent past will likely qualify under the final rule criteria. Further, 
NMFS analysis of its Confirmation of Permit History (CPH) database 
(where inactive permits can be stored) suggests that no permits existed 
in CPH during the 2008 fishing year that were otherwise active in the 
Area 1 trap fishing immediately before and after that year. In other 
words, permits with Area 1 trap fishing history existed in CPH in 2008, 
but those permits were inactive for longer periods of time than that 1 
year (e.g., they went into CPH before 2008 and/or still remain in CPH, 
or were taken out of CPH after 2008). A more detailed analysis is set 
forth in NMFS EA for this action, as well as the section entitled 
``Economic Impacts of the Final Rule on Small Entities.''
    Comment 11: One lobsterman stated that the notification of the 
proposed rule was not widespread. A different lobsterman counters that 
the Area 1 limited entry proposal was well known, publicly debated, and 
``* * * should not be news to anyone.''
    Response: The Commission's Area 1 limited entry program, including 
the control date, was the subject of much public debate both before and 
after January 2, 2009. As a preliminary matter, 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 lobster industry, and Massachusetts Lobstermen's 
Association), 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 LCMT forwarded their proposal to the Commission's Lobster 
Board. The Lobster Board is made up of three members from each of the 
involved states, including a state's director of marine fisheries, as 
well as an appointee of the state governor, and a member of the state 
legislature, all of whom are politically accountable to the respondent. 
In October 2008, after public discussion at the Lobster Board's public 
meeting, the Board voted to recommend the use of a control date 
suggested by the LCMT. The vote was unanimous and included all members 
of the respondent's state delegation. 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

[[Page 32426]]

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. The final rule, in 
fact, liberalizes the control date cut-off used in this rule based upon 
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.
    Comment 12: One lobsterman commented that while the proposed rule 
accomplishes its objectives in preventing trawl vessels and non-Area 1 
trap fishers from fishing with traps in Area 1, it ``changes course'' 
and over-reaches its objectives by also restricting latent (inactive) 
permits with Area 1 fishing history.
    Response: Activation of latent effort is and has always been a 
concern of the LCMTs, Lobster Board and NMFS, not only in Area 1, but 
in the lobster fishery in general. Latent effort is potential effort. 
It is effort that was dormant at the time in question (regardless of 
whether it was active some time beforehand) but that could become 
active in the future. Although latency is fluid, constantly changing, 
and impossible to precisely calculate given existing data, industry and 
managers alike know it exists and that latency may represent a 
relatively high percentage of existing permits in certain management 
areas in any one year. Accordingly, even if draggers and non-Area 1 
trap permits were restricted, effort in Area 1 could still increase 
precipitously simply by activation of this latent effort. The LCMT and 
Lobster Board decided that increased trap effort is a threat regardless 
of its origin, i.e., be it from draggers or non-Area 1 permits or 
latent Area 1 permits. See response to Comment 9 for additional detail 
on the effort shift threat. In choosing its criteria, the Area 1 LCMT 
and Lobster Board attempted to address this threat by recommending that 
effort be capped, not at past levels, nor at future levels, but at 
current levels as it actively existed in 2008 when the decision was 
made. NMFS liberalizes these criteria somewhat by extending the 
proposed January 2, 2009, control date to April 30, 2009, but NMFS 
nevertheless understands the rationale behind the LCMT and Lobster 
Board recommendation and finds it reasonable.
    Comment 13: One lobsterman from Maine commented that he knew of 
individuals that recently purchased Federal Area 1 permits that might 
have been latent (inactive) during the time-period set forth in this 
final rule's criteria, and that it is unfair for these individuals to 
have wasted their money purchasing a permit without knowing that a new 
regulation might render the permits ``worthless.''
    Response: NMFS has reviewed and analyzed the recommended criteria 
and has concluded that it is reasonable and rationally related to the 
objectives it seeks. In short, the LCMT and Lobster Board sought to cap 
effort at existing levels, with the term ``existing'' meaning permits 
that were active in 2008. NMFS even liberalized the criteria in an 
attempt to accommodate permit holders who were in the midst of permit 
transactions when the control date ANPR was published in the Federal 
Register in January 2009. Nevertheless, the possibility of this rule 
was well known, or should have been well known, to all permit holders 
years before NMFS published its proposed rule. Lobster regulations have 
existed in the commentator's home state for well over 100 years and it 
remains amongst the most highly regulated of all fisheries. The final 
rule's criteria were developed by local lobster fishers, including 
lobstermen from Maine, and approved unanimously in public meetings by 
the Commission's Lobster Board including politically-appointed, and 
thus accountable, members of the commentator's state delegation. For 
additional public notice information, see response to Comment 10.
    Unfortunately for the commentator, rules by their very nature draw 
lines that include some and exclude others. That is, in fact, the very 
purpose of this rule--to include trap fishing effort that was active in 
2008 and to exclude trap fishing effort that was not. While NMFS 
expects that some applicants will not qualify for trap fishing access, 
NMFS's analysis suggests that very few permit holders will be impacted 
and none impacted in a way that has not been previously considered. 
Non-qualified permits will not be worthless; they simply will not allow 
trap fishing in the Federal waters of Area 1. All other attributes of 
the permit--including lobster fishing in Area 1 without traps--will 
remain.
    Comment 14: The New Hampshire Department of Fish and Game commented 
that some New Hampshire lobstermen have purchased ``state-only'' tags, 
even though they were authorized to fish in Federal waters, and were 
concerned that New Hampshire's administrative process might 
unintentionally prevent its lobstermen from qualifying.
    Response: In an effort to avoid duplication, NMFS and several 
lobster fishing states agreed that trap fishers with dual state and 
Federal permits did not need to have both state trap tags and Federal 
trap tags on the same trap. Depending on the circumstances, the 
lobsterman could get his trap tags from his state or from NMFS and 
either entity would recognize and accept a trap tag from the other. The 
specifics of these agreements are set forth in various Memoranda of 
Agreements (MOA) between NMFS and the states. Given that differing 
entities (i.e., the various state and Federal governments) issue trap 
tags, NMFS is aware that the issued trap tags, although quite similar, 
are not identical in the information they convey. Accordingly, NMFS is 
not surprised to learn that a state might issue trap tags to a dual 
state/federal permit holder under its MOA with NMFS, yet have those 
trap tags contain little Federal information. NMFS does not intend this 
present rule to elevate form over substance and NMFS would not deny 
access to an otherwise qualified Federal Area 1 trap fishers based upon 
the circumstances described in this comment.
    Comment 15: One person commented that he was confused about the 
purpose of this action and, if the intent is to reduce the number of 
lobsters taken from Area 1, then limiting the number of fishermen will 
not be effective.
    Response: The intent of this final rule is not to limit the number 
of lobster taken out of Area 1. The intent is to maintain the 
sustainability of the Area 1 lobster stock and fishery by preventing 
the migration of trap fishing effort from other areas and other gear 
types into Area 1. We assert that capping effort at recent levels, as 
recommended by the Area 1 lobster industry and the Commission, will 
effectively control effort in the fishery by maintaining the economic 
structure in the fishery while continuing to allow opportunities for 
others to purchase existing Area 1 trap permits. This action does not 
strive to reduce the lobster harvest in Area 1. The most recent 
assessment of the Gulf of Maine lobster stock, conducted in 2009, 
indicates that the stock, overall, is in favorable condition. However, 
the assessment cautioned that uncontrolled access into the trap fishery 
could lead to an increase in trap fishing effort which could be 
detrimental to the long-term sustainability of the stock. It was that 
advice, and the potential for migration of permits into Area 1 from 
other areas and other fisheries due to a lack of controls on the number 
of Federal trap permits in Area 1, that initiated action by the 
industry and the Commission to recommend a limited entry program for 
the Area 1 trap fishery.

[[Page 32427]]

    Comment 16: One Area 1 lobsterman from Maine who supports the 
proposal, recommends that an apprenticeship program be established for 
the Federal fishery to facilitate participation by those who are 
responsible stewards of the resource.
    Response: Most, if not all Federal permit holders hold some type of 
state lobster license, either a fishing or landing license. The 
majority of Area 1 Federal permit holders reside in Maine and are 
subject to the apprenticeship requirements and other regulations that 
control entry into the fishery. Since Federal lobster permits are 
issued to vessels and not people, an apprenticeship program would be 
difficult to implement, especially because the permit holder is not 
necessarily the operator of the permitted vessel. We contend that the 
state-implemented controls on fishermen, including the apprenticeship 
program in Maine, are sufficient to instill a level of responsible 
stewardship among lobstermen. This concept is outside the scope of this 
action and is best addressed at the state level.

Changes From the Proposed Rule

    There are no changes in substance from the proposed rule. There 
are, however, four minor changes to the text of the final rule where 
clarifying language was added. In Sec.  697.4(a)(7)(vi), the words 
``after April 30, 2013,'' and ``or have an open pending application to 
fish in the area'' were added to clarify that if an application was 
still under initial review the applicant would be able to designate 
Area 1 for trap gear on their Federal fisheries permit application for 
the 2013 fishing year.
    In Sec.  697.4(a)(7)(vi), the words ``the Federal waters of'' were 
added to make clear in the regulatory text that the limited access 
program relates only to the Federal waters of Area 1. In Sec.  
697.4(a)(7)(vi)(A)(3), the term ``Area 1'' was added to make it clear 
that trap tag criterion related specifically to an Area 1 trap tag and 
not a trap tag from a different area. In Sec.  697.4(a)(7)(vi)(B)(3), 
the term ``Area 1'' was added to make it clear that the documentary 
proof requires evidence of a trap tag from Area 1. None of these 
additions are changes in substance--the Background section of the 
proposed rule makes clear that the program relates to the Federal 
waters of Area 1 and that the trap tag criterion relates to the 
purchase of an ``Area 1 lobster trap tag during any year from 2004-
2008.'' The additions were simply added for the purpose of clarity.

Changes to Existing Regulations

    This final rule enacts regulations that will require any Federal 
lobster permit holder who wishes to maintain access to the lobster trap 
fishery in the Federal waters of Area 1, to submit an application to 
NMFS by November 1, 2012. Each applicant must meet the eligibility 
requirements to retain the ability to fish with up to 800 lobster traps 
in Area 1 beyond the 2012 Federal fishing year. Those eligibility 
requirements are provided under SUPPLEMENTARY INFORMATION and are fully 
discussed throughout this final rule.
    Those permits that meet the eligibility requirements will be issued 
an Area 1 lobster trap permit for the 2013 Federal fishing year which 
begins on May 1, 2013. Those that do not meet the requirements will 
maintain a limited access Federal lobster permit, but the permit will 
no longer be eligible to fish with trap gear in the Federal waters of 
Area 1.
    This final rule also provides the opportunity for a permit holder 
whose application for Area 1 trap fishery access is denied to appeal 
the decision. The process for this provision is detailed in the 
Regulatory Text of this final rule.

Classification

    This proposed rule has been 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 and public comment. Paragraphs (A) and (B) of section 
803(b)(1) of the Atlantic Coastal Act authorize the Secretary of 
Commerce to issue regulations in the EEZ that are compatible with the 
effective implementation of an Interstate Fishery Management Plan 
developed by the Commission and consistent with the national standards 
set forth in section 301 of the Magnuson-Stevens Act.
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    This final rule does not contain policies with federalism 
implications as defined in E.O. 13132. These measures are based upon 
the lobster ISFMP that was created by and is overseen by the states. 
These 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, this final rule will 
not pre-empt state law and will do nothing to directly regulate the 
states.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final 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 
reviewed and approved by OMB under control number 0648-0642. 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 for whom NMFS already has sufficient documentary 
information to satisfy the proof required and thus will need only to 
sign and remit an application form, and those for whom NMFS does not 
presently have sufficient documentary information and thus will need to 
remit an application form along with documentation to support the 
qualification criteria. For those permit holders in the former 
category, NMFS will notify the approximately 1,643 permit holders for 
whom there is sufficient evidence to show that the permit will 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 1,509 permit holders, those whose permits for which 
NMFS does not have pre-existing documentary evidence, will be sent a 
letter indicating that insufficient information is on-hand to qualify 
the permit. NMFS estimates that 288 of the 1,509 permit holders for 
which NMFS does not have pre-existing documentary evidence, will apply 
for Area 1 trap fishery access. These 288 permit holders represent the 
224 whose permits had an Area 1 trap gear designation during the 2008 
fishing year, but did not have a record of purchasing a trap tag 
between 2004-2008. The additional 64 permit holders are the estimated 5 
percent of the 1,285 Federal lobster permit holders who did not have 
either an Area 1 designation in 2008 or a trap tag purchase record, but 
whom may submit an application

[[Page 32428]]

anyway. The burden is estimated at 22 minutes for each applicant 
considering the time estimated to locate 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 for all appellants is 14 
hr and $118. Overall, the total program burden on the combined number 
of affected Federal permit holders 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 $26,815. Material 
costs to the Federal Government include those for paper, envelopes, 
postage and other supplies associated with mailings, processing the 
applications, and appeals. When the estimated material costs of $3,678 
are considered, the overall total costs to the Federal Government to 
implement this program are estimated at $30,493.
    The proposed rule for this action solicited public comments on the 
burden estimates of this action. In response, a state fisheries agency 
suggested that NMFS utilize the relevant data on-hand to make a 
determination on each permit's Area 1 eligibility and then simply 
notify permit holders and inform them as to whether or not they are 
qualified to fish with traps in the Federal waters of Area 1. In 
contrast, a different state agency expressed concern that automatic 
qualification would qualify permits that have since left the Area 1 
trap fishery and thus create incentive for effort shift back into Area 
1. This issue was addressed in response to Comment 5 in the Comments 
and Responses.
    We considered this issue and seek a balance. This rule will require 
all permit holders to submit an application to avoid automatically 
qualifying permits that may no longer be involved in the Area 1 trap 
fishery, but may qualify. To automatically qualify, such permits would 
increase latent effort in the Area 1 trap fishery and compromise the 
intent of this effort control program. Although we will require all 
permit holders to actively apply, we acknowledge that we have the 
information on-hand to qualify the vast majority of eligible Area 1 
trap permits. Consequently, we will minimize the burden by informing 
those permit holders that we have sufficient information to qualify 
their permit and they need only sign and remit the application form 
requesting that their permit be considered for eligibility for the Area 
1 trap fishery. Those permits holders for whom we do not have 
sufficient information available to make the determination on their 
permit will be requested to remit documentation in support of the 
eligibility criteria. This approach requires a limited level of burden 
on otherwise qualified permit holders without undermining the effort 
control intent of this action.
    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 a Final Regulatory Flexibility Analysis (FRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact this final rule will have on small 
entities. Copies of the FRFA, RIR, and the EA prepared for this action 
are available from the Northeast Regional Office (see ADDRESSES). A 
description of the action, the reason for consideration, and its legal 
basis are contained under SUPPLEMENTARY INFORMATION.
    This final rule will 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 this rule will 
limit future participation in the Area 1 lobster trap fishery to 
historical participants that meet the eligibility requirements as 
described under SUPPLEMENTARY INFORMATION section.

Summary of the Significant Issues Raised by the Public Comments

    None of the public comments received in response to the proposed 
rule raised any significant issues, meaning that nothing new was 
presented that caused NMFS to change course with respect to the policy 
and regulations to implement a limited entry program for the Area 1 
lobster trap fishery. Of the 18 comments received in response to the 
proposed rule, the majority, or 11 comments, fully supported the 
proposed rule; 3 comments neither supported nor opposed the Area 1 
limited entry program; while 4 opposed the Area 1 limited entry 
program. A summary of the comments received as well as detailed 
responses to each comment are provided under Comments and Responses.
    Although not significant in relation to this final rule, the 
content of some comment submissions raised issues that afforded us the 
opportunity to more fully analyze the impacts of this action on certain 
entities to assure that our initial impact analysis, prepared in 
support of the proposed rule, was accurate and comprehensive. 
Additionally, we made non-regulatory and esoteric changes to this 
program's application submission process to allow for a more timely 
review and decision-making period to the benefit of affected permit 
holders, state agencies, and NMFS.
    First, comments from state agencies recommended that we attempt to 
make all eligibility decisions prior to the start of the 2013 state 
lobster fishing year, which begins January 1, 2013. The intent of this 
request was to assure that the states had the appropriate information 
to indicate whether a permit was qualified for Area 1 trap fishing to 
simplify the authorization for the permit holder to purchase 2013 
lobster trap tags. Under agreements with certain states, NMFS allows 
Federal permit holders to purchase lobster trap tags annually from 
their home state. The regulations set forth in this rule, consistent 
with those in the proposed rule, allow permit holders to apply for Area 
1 eligibility until November 1, 2012. However, we are alerting the 
public in this final rule that we will be accepting applications as 
early as 30 days after the date of this final rule and that those who 
choose to apply early, that is by September 1, 2012, will be assured, 
to the extent practicable, of a final decision for the 2013 Federal 
fishing year, which begins on May 1, 2013. This change was only 
programmatic in nature and is not linked to the regulatory text of this 
final rule. Although we expect to have all decisions made by the end of 
the 2012 calendar year as requested by the states, the revised process 
provides an incentive to the permit holder to apply early and will give 
us more time to review and make decisions on each application. See 
Comments and Responses for additional information.
    Additionally, we received a comment outside of the comment period 
that questioned the impact to Federal permits which were in 
Confirmation of Permit History (CPH) status during the 2008 Federal 
fishing year--the critical period during which a permit must have had 
an Area 1 trap gear designation in order to qualify. Since this is one 
of the eligibility criteria, a permit that was in

[[Page 32429]]

CPH status during the entire 2008 Federal fishing year would not 
qualify because it was inactive during that critical year. This comment 
prompted us to explore this issue in more depth. Our subsequent 
analysis revealed that this situation would not result in a significant 
group of otherwise active Area 1 permit holders who would not qualify 
while their permit was in CPH due to a temporary absence from the 
fishery.
    This issue is explained in detail under Federal Lobster Permits in 
Confirmation of Permit History in Description and Estimate of the 
Number of Small Entities to Which the Final Rule Applies under 
SUPPLEMENTARY INFORMATION.

Description and Estimate of the Number of Small Entities To Which the 
Final Rule Applies

    This final rule will 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 on their permit 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 will be 
curtailed for about 40 percent of limited access lobster permit 
holders, this final rule will have a more immediate impact on permitted 
vessels that may already be participating in the Area 1 trap fishery. 
Note that this action will only limit entry to the Area 1 lobster trap 
fishery. Any Federal limited access lobster vessel that may not qualify 
will 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 this action is 
expected to be 1,867 limited access permit holders who designated Area 
1 on their 2008 permit application. The number of these entities that 
may be above or below the Small Business Administration (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.
    NMFS evaluated three management alternatives prior to moving 
forward with the preferred alternative set forth in this final rule. 
One alternative, the status quo alternative, would make no changes to 
the Federal lobster regulations and would continue to allow any Federal 
lobster permit to gain access into the Area 1 lobster trap fishery. 
This alternative provides the greatest potential for trap fishing 
effort to proliferate in Area 1. The status quo alternative was not 
selected because it was counter to the recommendations of the 
Commission and the Area 1 lobster industry, as well as the scientists 
of the Commission's Lobster Technical Committee who cautioned that 
unchecked lobster trap fishing effort could jeopardize the 
sustainability of the Gulf of Maine lobster stock and the Area 1 
lobster fishery.
    A second management alternative we analyzed was the Commission's 
alternative. This alternative would have implemented changes to the 
Federal lobster regulations to limit access into the Area 1 lobster 
trap fishery by employing the eligibility criteria adopted by the 
Commission in Addendum XV. The only difference between the Commission's 
alternative and the preferred alternative established in this final 
rule is that the Commission's alternative adopted a January 2, 2009, 
control date which is the date that NMFS published the ANPR in the 
Federal Register (74 FR 67) to notify the public that an Area 1 trap 
fishery limited entry program was under consideration. Consequently, 
Area 1 trap fishery eligibility under the Commission's alternative 
would require that a permit had an Area 1 trap tag purchase during any 
year from 2004-2008 and that the permit was active for the 2008 fishing 
year with an Area 1 designation prior to January 2, 2009. January 2, 
2009, falls in the middle of the 2008 fishing year and would not 
effectively capture all Area 1 Federal lobster permits that were active 
during that fishing year.
    In contrast, the final rule will 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 
qualification criterion regarding the date when the 2008 permit 
application had to be received is less restrictive than the January 2, 
2009, control date recommended by the Commission. An additional 32 
permit holders would likely qualify under this adopted alternative as 
opposed to the Commission's alternative. These 32 permits, however, do 
not represent new or additional effort, and is such a small number that 
it would likely have no measurable impact on the species. The 
Commission, states and industry groups support this alternative as 
following the spirit and intent of their recommendation. As such, the 
final rule will 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, while remaining consistent with the Commission's intent to cap 
the number of Federal lobster trap permits in Area 1 at 2008 levels.
    Based on the qualification criteria, 1,643 (88 percent) of the 
1,867 potentially affected small entities will 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 asserts that these potential non-
qualifiers 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.

[[Page 32430]]

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 this rule 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.
    This final rule will not implement any regulatory measures that 
will affect the manner in which qualifiers prosecute the Area 1 trap 
fishery and will 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 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 will retain the access rights that will 
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 final rule will 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 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 will not have an 
Area 1 designation for that year, will fail to satisfy that criterion, 
and would be considered ineligible for future participation in the 
Federal Area 1 lobster trap fishery.
    To better understand the consequences of this rule and its 
potential impact on individuals who may have been active permit holders 
immediately before and/or after 2008, we conducted a review of all 
permits in CPH status during the 2008 fishing year. Specifically, we 
identified 34 Federal lobster permits that were inactive (in CPH 
status) during much of 2008, but that might have been active 
immediately before or after. Our investigation revealed that the vast 
majority of these permits never fished in Area 1 because they were 
associated with vessels from southern New England and points south and 
show a history of fishing in more southerly lobster management areas, 
or they had a history of fishing with mobile gear and not traps.
    We focused our attention on 12 of the 34 permits that had a 
previous Area 1 trap gear designation and were taken out of CPH after 
the 2008 fishing year. We were interested in this group of permits 
because they represent a category of permit holders that may be most 
impacted the eligibility criterion that requires a 2008 Area 1 
designation. Of these 12 permits, only one purchased trap tags during 
the required 2004-2008 period (in 2005 only). Since this permit did not 
have an Area 1 designation in 2008, it would not qualify. Nevertheless, 
it is not the type of permit that this rule (and the Commission and 
LCMT) strives to qualify, since the permit has not been an active Area 
1 trap permit since 2005.
    Overall, we found that our criterion requiring that a permit have 
an Area 1 trap gear designation during the 2008 fishing year did not 
create a significant group of non-qualifying permit holders, 
particularly those whose permits were in CPH status during that year. A 
more detailed analysis of this issue is provided in the EA.

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 will 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 will probably 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. This final rule will 
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 contend that this will 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 will not qualify for the Area 1 trap

[[Page 32431]]

fishery under the proposed action, 209 vessels with both a Federal 
lobster and multispecies permit will qualify. Compared to the 
Commission's Alternative, five more Federal lobster permits with a 
multispecies permit will qualify under the final rule's criteria--two 
from Massachusetts and three from Maine. All five are in the common 
pool and hail from Gulf of Maine ports, thus the final rule decreases 
the number of affected common pool participants hailing from the Gulf 
of Maine ports, since the extension of the eligibility period will 
allow these vessels to qualify for the Area 1 trap fishery.

Description of Steps the Agency Has Taken To Minimize the Economic 
Impact on Small Entities Consistent With the Stated Objectives of 
Applicable Statutes

    We took several steps to minimize the economic impact of this 
action on small entities. First, we extended the permit qualification 
period four months beyond the control date to consider all Federal 
lobster permits that elected Area 1 for trap gear on their 2008 Federal 
lobster permit, as discussed under the Final Rule section of this 
document. Ultimately, this will allow about 32 additional active Area 1 
trap permits to qualify without compromising the effort control 
intentions of the Commission's plan. Second, we have set forth an 
application process that reduces the burden on the vast majority of 
Federal Area 1 lobster permit holders for whom NMFS already has 
sufficient information on hand to qualify the permit for the Area 1 
trap fishery. This issue is described in more detail in the Description 
of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements section. Third, we will allow all Federal lobster permit 
holders to fish with traps in Area 1 for the remainder of the 2012 
Federal fishing year while the application review process is underway 
to avoid short-term disruptions in current fishing practices. Finally, 
those permit holders who choose to apply early, that is by September 1, 
2012, will be assured, to the extent practicable, of a final decision 
for the 2013 Federal fishing year, which begins on May 1, 2013. This 
issue is discussed in more detail under the Summary of Significant 
Issues Raised by the Public Comments section.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: May 29, 2012.
Alan D. Risenhoover,
Acting 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. 5101 et seq.


0
2. In Sec.  697.4, redesignate paragraphs (a)(7)(vi) through (a)(7)(x) 
to paragraphs (a)(7)(vii) through (a)(7)(xi), revise paragraph 
(a)(7)(ii), 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 the Federal waters of Area 1 after 
April 30, 2013, a Federal lobster permit holder must initially qualify 
into the area, or have an open pending application to fish in 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 Area 1 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 will allow NMFS to identify the Federal lobster permit 
in its database, which will 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 will allow NMFS 
to identify the Federal lobster permit in its database, which will at a 
minimum include: The applicant's name and address; vessel name; and 
permit number.
    (3) As proof of Area 1 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 will 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

[[Page 32432]]

omission such as ministerial, mathematical, or typographical mistakes 
will 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 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. 2012-13352 Filed 5-31-12; 8:45 am]
BILLING CODE 3510-22-P