[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Rules and Regulations]
[Pages 69619-69622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28544]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
[Docket No. 150610515-5999-02]
RIN 0648-BF16
Fisheries of the Northeastern United States; Atlantic Coastal
Fisheries Cooperative Management Act Provisions; American Lobster
Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This action modifies the timing of the Lobster Conservation
Management Area 4 seasonal closure. This action is necessary to ensure
fishery regulations for the lobster fishery in Federal waters remain
consistent with the Commission's Interstate Fishery Management Plan for
American Lobster and previously implemented state measures and the
intent of the Atlantic Coastal Fisheries Cooperative Management Act.
This action is intended to ensure fishing effort is reduced in Area 4.
DATES: This rule is effective December 10, 2015.
FOR FURTHER INFORMATION CONTACT: Allison Murphy, Fishery Policy
Analyst, (978) 281-9122.
SUPPLEMENTARY INFORMATION:
Background
The American lobster fishery is managed by the Atlantic States
Marine Fisheries Commission under Amendment 3 to the Interstate Fishery
Management Plan for American Lobster (ISFMP). We manage the portion of
the fishery conducted in Federal waters from 3 to 200 miles offshore,
based on management recommendations made by the Commission.
The American lobster management unit is divided between two lobster
stocks and seven Lobster Conservation Management Areas.
[[Page 69620]]
[GRAPHIC] [TIFF OMITTED] TR10NO15.000
The 2009 stock assessment indicated that the Southern New England
American lobster stock, which includes all or part of six areas
including Area 4, is at a low level of abundance. The stock is
experiencing persistent recruitment failure caused by a combination of
environmental factors and continued fishing mortality. To address the
poor condition of the stock, the Commission adopted Addendum XVII to
Amendment 3 of the ISFMP in February of 2012. The measures in the
addendum were intended to reduce fishing exploitation on the Southern
New England lobster stock by 10 percent. Copies of the addendum are
available on the Commission's Web site at: http://www.asmfc.org/uploads/file/amLobsterAddendumXVII_feb2012.pdf.
Consistent with the Commission's action in Addendum XVII, we issued
complementary regulations (80 FR 2028; January 15, 2015) for Areas 2,
3, 4, and 5. Measures for Area 4 included a mandatory v-notching
requirement for egg-bearing female lobsters and an annual seasonal
closure from February 1-March 31. States came into compliance with
Addendum XVII by January 1, 2013.
Approved Measures
We are changing the Area 4 seasonal closure from February 1-March
31 to April 30-May 31, consistent with the Commission's recommendation.
The American Lobster Technical Committee analyzed the effectiveness of
the initial February 1-March 31 Area 4 closure after it was implemented
by the states and presented these results to the Commission in late
2014. The Technical Committee's analysis indicated that the February
and March closure in Area 4 only achieved a 3.7-percent reduction in
effort, falling short of the required 10-percent reduction. The
Technical Committee recommended that the Lobster Board shift the annual
seasonal closure from February 1-March 31 to April 30-May 31. The
Technical Committee projected that this shift would achieve a 10.1-
percent reduction in effort. The Lobster Board reviewed this analysis
and approved the Area 4 seasonal closure modification during several
meetings in late 2014 and early 2015. The Lobster Board also
recommended that all jurisdictions change the closure date to April 30-
May 31 annually. New York and New Jersey (the two states bordering Area
4) have already adjusted their regulatory closure to this later date.
The changes implemented by this rule ensure consistency between state
and Federal Area 4 management measures.
Comments and Responses
Our proposed rule, published August 5, 2015 (80 FR 46533),
solicited comments through September 4, 2015. We received three
comments, one from the Atlantic States Marine Fisheries Commission, one
from the Atlantic Offshore Lobstermen's Association, and one from the
Massachusetts Lobstermen's Association, in response to the proposed
rule. A summary of the comments and our responses is provided below.
Comment 1: All three comments supported our action to modify the
date of the closure to April 30-May 31 to ensure consistency between
American lobster management in state and Federal waters.
Response: We agree and are implementing through this rule the
annual seasonal closure shift to April 30-May 31.
Comment 2: Both Associations suggested edits to the vessel
transiting provisions of the Area 4 seasonal closure. Both groups asked
that we clarify that lobster caught in other Lobster Conservation
Management
[[Page 69621]]
Areas could be retained on board while a vessel transits Area 4.
Response: We agree that a lobster vessel transiting Area 4 during
the closure should be allowed to possess lobster legally caught in
other areas. All of the seasonal closures (in Areas 4, 5, and the Outer
Cape) contain transiting provisions allowing a vessel to transit
through the area while closed, with gear properly stowed. The intent of
the transiting provision is to allow a vessel to fish in an open area
and transit through a seasonally closed area to return to port.
The wording of the proposed rule already allows a lobster vessel to
transit an area closure with lobsters legally caught in other areas. As
a result, although we acknowledge the commenters' concerns, we are not
modifying the Area 4 transiting provisions from those we proposed.
In addition, changing transiting regulations for Area 4 would
create an inconsistency with the transiting regulations for other
areas. Changing the transiting provisions in Area 4 could lead industry
to believe that lobsters could not be retained onboard while transiting
Areas 5 or the Outer Cape. We do not want to create additional
confusion. Therefore, we are not modifying the transiting provisions.
Classification
This final 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.
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 that term is defined in E.O. 13132. The approved
measures are based upon the American Lobster ISFMP that was created by
and is overseen by the states. These measures were a result of a
modification to Addendum XVII measures, which was approved by the
Commission's American Lobster Board, recommended by the Commission for
Federal adoption, and are in place at the state level. Consequently,
NMFS has consulted with the states in the creation of the ISFMP, which
makes recommendations for Federal action. Additionally, these measures
would not pre-empt state law and would do nothing to directly regulate
the states.
This final rule does not contain a collection of information
requirement subject to review and approval by the Office of Management
and Budget under the Paperwork Reduction Act.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to assess the economic impacts of their regulations on small
entities. The objective of the RFA is to consider the impacts of a
rulemaking on small entities, and the capacity of those affected by
regulations to bear the direct and indirect costs of regulation. We
prepared a Final Regulatory Flexibility Analysis (FRFA) for this action
as required by section 603 of the RFA. The FRFA describes the economic
impact this final rule would have on small entities. The approved
management measure would affect small entities (i.e., Federal lobster
permit holders) fishing in Southern New England, specifically in Area
4.
A Summary of the Significant Issues Raised by the Public in Response to
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a
Statement of Any Changes Made in the Final Rule as a Result of Such
Comments
No public comments were submitted about the IRFA. See the Comments
and Responses section for general comments received on the rule's
measures.
Description and Estimate of the Number of Small Entities to Which the
Rule Would Apply
The RFA recognizes and defines three kinds of small entities: Small
businesses; small organizations; and small governmental jurisdictions.
The Small Business Administration (SBA) size standards define whether a
business entity is small and, thus, eligible for Government programs
and preferences reserved for ``small business'' concerns. Size
standards have been established (and recently modified) for all for-
profit economic activities or industries in the North American Industry
Classification System (NAICS). Designations of large and small entities
were based on each entity's 3-year average landings. For entities
landing a majority of revenue in shellfish (NAICS 111412), the
threshold for ``large'' is $5.5 million. For entities landing a
plurality of revenue in finfish (NAICS 111411), the threshold for
``large'' is $20.5 million. The number of directly regulated entities
for purposes of analyzing the economic impacts and describing those
that are small businesses is selected based on permits held. Because
this regulation applies only to the businesses that hold Area 4
permits, only those business entities are evaluated. Business entities
that do not own vessels with directly regulated permits are not
described.
Of the 47 small entities identified in the IRFA, 23 are considered
a shellfish business, 12 are considered a finfish business, and 12
could not be identified as either because even though they had a
lobster permit (in Area 4), they had no earned revenue from fishing
activity. Because they had no revenue in the last 3 years, they would
be considered small by default and would also be considered as latent
effort.
The entity definition used by the Northeast Fisheries Science
Center Social Sciences Branch uses only unique combinations of owners.
That is, entities are not combined if they have a shared owner. Section
3 of the Small Business Act defines affiliation as: Affiliation may
arise among two or more persons with an identity of interest.
Individuals or firms that have identical or substantially identical
business or economic interests (such as family members, individuals or
firms with common investments, or firms that are economically dependent
through contractual or other relationships) may be treated as one party
with such interests aggregated (13 CFR 121.103(f)).
The recent addition of vessel owner information to the permit data
allows us to better define fishing ``businesses.'' The vessel ownership
data identify all the individual people who own fishing vessels.
Vessels can be grouped together according to common owners, which can
then be treated as a fishing business for purposes of RFA analyses.
Revenues summed across all vessels in the group and the activities that
generate those revenues form the basis for determining whether the
entity is a large or small business. Ownership data are available for
those potentially impacted by this action from 2010 onward.
A person who does not currently own a fishing vessel, but who has
owned a qualifying vessel that has sunk, been destroyed, or transferred
to another person, must apply for and receive a ``confirmation of
history'' (CPH) if the fishing and permit history of such vessel has
been retained lawfully by the applicant. Issuance of a valid CPH
preserves the eligibility of the applicant to apply for a permit for a
replacement vessel based on the qualifying vessel's fishing and permit
history at a subsequent time. The ownership data based on the permits
held do not contain information on CPH permits. A total of six CPH's
exist for lobster Area 4.
[[Page 69622]]
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
This action contains no new collection-of-information, reporting,
or recordkeeping requirements.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes
Due to the expected high rate of dual permitting and that the
states are already compliant with the revised Area 4 seasonal closure,
the majority of Federal vessels must already abide by these
requirements and have already been impacted. For those vessels not
dually permitted, this change in the Area 4 seasonal closure can be
expected to have a limited economic impact to permit holders. Because
the regulations are consistent with Commission recommendations and
current state regulations, alternative measures, such as maintain the
status quo, would likely create inconsistencies and regulatory
disconnects with the states and would likely worsen potential economic
impacts. Therefore, the status quo was not considered reasonable, and
for similar reasons, other alternatives that maintained disconnected
state and Federal closures were not considered.
Small Entity Compliance Guide
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, we will send a small entity compliance guide
to all Federal permit holders affected by this action. In addition,
copies of this final rule and guide (i.e., information bulletin) are
available from NMFS (see ADDRESSES) and at the following Web site:
http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/lobster/index.html.
List of Subjects in 50 CFR Part 697
Fisheries, fishing.
Dated: November 5, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 697 is amended
as follows:
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
0
1. The authority citation for part 697 continues to read as follows:
Authority: 16 U.S.C. 5101 et seq.
0
2. In Sec. 697.7, revise paragraphs (c)(1)(xxx)(B) to read as follows:
Sec. 697.7 Prohibitions.
* * * * *
(c) * * *
(1) * * *
(xxx) * * *
(B) Area 4 seasonal closure. The Federal waters of Area 4 shall be
closed to lobster fishing from April 30 through May 31.
(1) Lobster fishing is prohibited in Area 4 during this seasonal
closure. Federal lobster permit holders are prohibited from possessing
or landing lobster taken from Area 4 during the seasonal closure.
(2) All lobster traps must be removed from Area 4 waters before the
start of the seasonal closure and may not be re-deployed into Area 4
waters until after the seasonal closure ends. Federal trap fishers are
prohibited from setting, hauling, storing, abandoning, or in any way
leaving their traps in Area 4 waters during this seasonal closure.
(i) Lobster fishers have a 1-week grace period from May 24 to May
31 to re-set gear in the closed area. During this grace period, re-set
traps may not be re-hauled and any Federal lobster permit holder re-
setting Area 4 traps during this grace period is prohibited from
possessing on board any lobster regardless of the area from which the
lobster may have been harvested.
(ii) [Reserved]
(3) Federal lobster permit holders are prohibited from possessing
or carrying lobster traps aboard a vessel in Area 4 waters during this
seasonal closure unless the vessel is operating subject to the grace
period identified in paragraph (c)(1)(xxx)(B)(2)(i) of this section or
is transiting through Area 4 pursuant to paragraph (c)(1)(xxx)(B)(5) of
this section.
(4) The Area 4 seasonal closure relates only to Area 4. The
restrictive provisions of Sec. Sec. 697.3 and 697.4(a)(7)(v) do not
apply to this closure. Federal lobster permit holders with an Area 4
designation and another Lobster Management Area designation on their
Federal lobster permits would not have to similarly remove their
lobster gear from the other designated management areas.
(5) Transiting Area 4. Federal lobster permit holders may possess
lobster traps on their vessels in Area 4 during the seasonal closure
only if:
(i) The trap gear is stowed; and
(ii) The vessel is transiting the Area 4. For the purposes of this
section, transiting shall mean passing through Area 4 without stopping,
to reach a destination outside Area 4.
(6) The Regional Administrator may authorize a permit holder or
vessel owner to haul ashore lobster traps from Area 4 during the
seasonal closure without having to engage in the exempted fishing
process in Sec. 697.22, if the permit holder or vessel owner can
establish the following:
(i) That the lobster traps were not able to be hauled ashore before
the seasonal closure due to incapacity, vessel/mechanical
inoperability, and/or poor weather; and
(ii) That all lobsters caught in the subject traps will be
immediately returned to the sea.
(iii) The Regional Administrator may condition this authorization
as appropriate in order to maintain the overall integrity of the
closure.
* * * * *
[FR Doc. 2015-28544 Filed 11-9-15; 8:45 am]
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