[Federal Register Volume 60, Number 156 (Monday, August 14, 1995)]
[Rules and Regulations]
[Pages 41828-41832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20024]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 640
[Docket No. 950424112-5201-02; I.D. 032095B]
RIN 0648-AF37
Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic;
Amendment 4
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 4 to the
Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of
Mexico and South Atlantic (FMP). Amendment 4 allows the harvest of
spiny lobster year-round and establishes a daily bag or possession
limit of two spiny lobster per person in the exclusive economic zone
off North Carolina, South Carolina, and Georgia.
EFFECTIVE DATES: September 13, 1995, except for Sec. 640.23(a) and (b)
which will be effective [September 21, 1995. The incorporations by
reference of certain sections of the Florida Administrative Code and
Florida Statutes are approved by the Director of the Office of the
Federal Register as of September 13, 1995.
FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.
[[Page 41829]]
SUPPLEMENTARY INFORMATION: The FMP was prepared by the Gulf of Mexico
and South Atlantic Fishery Management Councils (Councils). The FMP is
implemented through regulations at 50 CFR part 640 under the authority
of the Magnuson Fishery Conservation and Management Act (Magnuson Act).
Detailed descriptions, backgrounds, and rationales for the
management measures in Amendment 4 and the additional measures proposed
by NMFS were included in the preamble to the proposed rule (60 FR
21493, May 2, 1995) and are not repeated here.
Comments and Responses
Four written comments were received on the proposed rule. One of
the Councils' advisory panel members strongly supported this action.
Three recreational divers opposed Amendment 4 because of a
perceived risk to lobster stocks from the elimination of the spawning
season closure. These three commenters also believe that this action
will seriously increase recreational taking of lobsters off North
Carolina. Two of the three commenters recommended a monitoring system
to determine the number of recreational divers, catch, and size of
lobsters before taking this action. One of those commenters opposed to
Amendment 4 questioned the data contained in the amendment regarding
the depth at which the fishery is prosecuted and the size of available
lobsters. This commenter submitted a videotape to the South Atlantic
Fishery Management Council office that purports to show lobsters common
at depths from 45 to 100 ft (13.7 to 30.5 m) and significant
populations of small lobsters in these waters, e.g., carapace lengths
less than 1 inch (2.54 cm).
NMFS notes that there is scientific debate regarding the biological
status and population dynamics of spiny lobsters in waters north of
Florida, including the issue of recruitment and the fate of larvae from
the adult population in this area. However, based on the best available
scientific information, NMFS and the Councils believe that allowing a
limited year-round harvest in the subject area will have no adverse
biological impacts on the lobster stocks.
Some divers believe that the spawning season off North Carolina
does not begin until July, due to the colder water temperatures. They
reported seeing egg-bearing lobsters as late as early October. Thus,
the current spawning season closure from April through July, based on
data from Florida, may not be particularly relevant to the area north
of Florida. Amendment 4 would not change the current prohibition on
taking egg-bearing female lobsters.
NMFS believes that a monitoring system for this fishery would not
be cost-effective. Our surveys indicate that there are only a small
number of participants in the spiny lobster fishery north of Florida.
The South Atlantic Council intends to monitor the fishery to determine
the need for further management actions, including a possible reduction
in the bag limit.
According to testimony at public hearings on Amendment 4, the
fishery takes place about 30 nautical miles (55.6 km) offshore in at
least 100 ft (30.5 m) of water. A typical dive at these depths lasts
less than 30 minutes. Lobsters harvested ranged from 2 to 16 lb (0.9 to
7.3 kg). Comments on the proposed rule contradicted this testimony and
raised questions about the potential for significant increases in
recreational take and the availability of undersized lobster in the
area.
If lobsters are found in relatively shallow water that is
accessible to most recreational divers, there is a possibility of an
increase in participation due to the year-round harvest. However, a
recent NMFS survey indicated that only a small number of recreational
divers harvested spiny lobster north of Florida. Comments on the
proposed rule also indicate the possible presence of significant
numbers of undersized lobsters, i.e., with carapace lengths less than 3
inches (7.62 cm), increasing the possibility of taking undersized
lobsters in this fishery. The presence of subadult lobsters was not
reported during public hearings on Amendment 4.
NMFS is concerned about the new information that arose during the
public comment period on the proposed rule, since this information was
not available to the Councils when they approved Amendment 4. However,
NMFS has reviewed the administrative record on the Councils' decision
and has determined that this new information does not outweigh the
record underlying the Councils' decision. Consequently, NMFS approved
Amendment 4 with the expectation that the Councils will consider this
new information during development of a subsequent FMP amendment.
Incorporation by Reference of Florida Statutes and Regulations
As explained in the proposed rule, NMFS is adding language to the
regulatory text of the regulations implementing the FMP to ensure that
the incorporations by reference of certain portions of the Florida
Statutes (FS) and Florida Administrative Code (FAC) meet procedural
specifications of the Office of the Federal Register. NMFS has
determined that the references at 50 CFR 640.6(a)(1) to sections 370.14
and 370.142, FS, are unnecessarily broad. The references are in the
context of vessel and gear identification requirements applicable to
the harvesting of spiny lobsters by traps in Florida's waters. However,
such requirements are contained in only three paragraphs of those
sections. Accordingly, in this final rule, the references are changed
to sections 370.14(2)(a) and (3) and 370.142(2)(b), FS.
The current references are to the portions of the FS and FAC as
specified on November 30, 1992. In the proposed rule and this final
rule the references are to the FS in effect as of July 1, 1994, and FAC
in effect as of June 1, 1994, the dates of the currently effective
referenced portions. This change is necessary in order for fishermen to
have access to the referenced portions--earlier versions are not
readily available. The following changes, none of which are
substantive, have been made to the referenced FS and FAC since November
30, 1992:
Section 370.142, FS - paragraph (2)(c) has been removed. The
paragraph contained identification requirements for recreational spiny
lobster traps. However, those requirements were duplicative of
requirements for all traps, as contained in FS 370.14(2)(a) and
370.142(2)(b).
Rule 46-24.002(2), FAC - As of November 30, 1992, this rule
specified August 1, 1993, as the beginning date that a restricted
species endorsement would be required on the Florida saltwater products
license in order to be a commercial harvester of spiny lobsters. That
date was changed to August 1, 1994. However, since the reference to
this rule was not included in the Federal Register until October 21,
1994, the change in date is inconsequential.
In several paragraphs of the referenced FS and FAC ``Department of
Natural Resources'' was changed to ``Department of Environmental
Protection.''
Changes from the Proposed Rule
As discussed above, the references to sections 370.14 and 370.142,
FS, have been changed.
Classification
The Director, Southeast Region, NMFS, determined that Amendment 4
is necessary for the conservation and management of the spiny lobster
fishery of the Gulf of Mexico and South
[[Page 41830]]
Atlantic and that it is consistent with the Magnuson Act and other
applicable law.
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when the proposed rule was published
that it would not have a significant economic impact on a substantial
number of small entities. The reasons for this certification were
published in the preamble to the proposed rule (60 FR 21493, May 2,
1995). As a result, a regulatory flexibility analysis was not prepared.
The incorporation by reference of certain sections of the Florida
Administrative Code and Florida Statutes does not constitute a
substantive rule, as they are not changing the regulation, but, rather,
are correcting the process by which those sections were previously
incorporated. Thus, pursuant to 5 U.S.C. 553(d) there is no need to
delay the effective date of those provisions. Additionally, due to the
fact that the fishery for spiny lobster opened on August 6, 1995, the
Assistant Administrator for Fisheries, NOAA, finds that good cause
exists, under 5 U.S.C. 553(d)(3), to waive the 30-day delay in
effective date with respect to the provisions of this rule that specify
the daily bag or possession limit of spiny lobster. The conservation
and management needs that lead NMFS to impose the limit, as described
in the proposed rule, along with the fact that it takes little, if any,
time to come into compliance with such a limit make a delay in
effective date contrary to the public interest and unnecessary,
respectively. However, in order to provide time for notice of the bag
limit to be provided to fishermen, NMFS will delay the effective date
of this provision for 7 days.
List of Subjects in 50 CFR Part 640
Fisheries, Fishing, Incorporation by reference, Reporting and
recordkeeping requirements.
Dated: August 9, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 640 is amended
as follows:
PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH
ATLANTIC
1. The authority citation for part 640 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 640.2, definitions for ``Off the Gulf states, other than
Florida'' and ``Off the southern Atlantic states, other than Florida''
are added, in alphabetical order, to read as follows:
Sec. 640.2 Definitions.
* * * * *
Off the Gulf states, other than Florida means the area from the
coast to the outer limit of the EEZ between the Texas/Mexico border to
the Alabama/Florida boundary (87 deg.31'06'' W. long.).
Off the southern Atlantic states, other than Florida means the area
from the coast to the outer limit of the EEZ between the Virginia/North
Carolina boundary (36 deg.34'55'' N. lat.) to the Georgia/Florida
boundary (30 deg.42'45.6'' N. lat.).
* * * * *
3. In Sec. 640.4, paragraph (a)(1) is revised to read as follows:
Sec. 640.4 Permits and fees.
(a) * * *
(1) Licenses, certificates, and permits--(i) EEZ off Florida and
spiny lobster landed in Florida. For a person to sell, trade, or
barter, or attempt to sell, trade, or barter, a spiny lobster harvested
or possessed in the EEZ off Florida, or harvested in the EEZ other than
off Florida and landed from a fishing vessel in Florida, or for a
person to be exempt from the daily bag and possession limit specified
in Sec. 640.23(b)(1) for such spiny lobster, such person must have the
licenses and certificates specified to be a ``commercial harvester,''
as defined in Rule 46-24.002(2), Florida Administrative Code, in effect
as of June 1, 1994. This incorporation by reference was approved by the
Director of the Office of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the
Florida Marine Fisheries Commission, 2540 Executive Center Circle West,
Suite 106, Tallahassee, FL 32301; telephone: 904-487-0554. Copies may
be inspected at the Office of the Regional Director; the Office of
Fisheries Conservation and Management, NMFS, 1315 East-West Highway,
Silver Spring, MD; or the Office of the Federal Register, 800 North
Capitol Street NW, Suite 700, Washington, DC.
(ii) EEZ other than off Florida. For a person to sell, trade, or
barter, or attempt to sell, trade, or barter, a spiny lobster harvested
in the EEZ other than off Florida or for a person to be exempt from the
daily bag and possession limit specified in Sec. 640.23(b)(1) for such
spiny lobster, a Federal vessel permit must be issued to the harvesting
vessel and must be on board. However, see paragraph (a)(1)(i) of this
section for the licenses and certificates required for a person to
possess or land spiny lobster harvested in the EEZ other than off
Florida and subsequently possessed in the EEZ off Florida or landed
from a fishing vessel in Florida.
* * * * *
4. In Sec. 640.6, in paragraph (c), the word ``Secretary'' is
revised to read ``Assistant Administrator'' and paragraph (a) is
revised to read as follows:
Sec. 640.6 Vessel and gear identification.
(a) EEZ off Florida. (1) An owner or operator of a vessel that is
used to harvest spiny lobsters by traps in the EEZ off Florida must
comply with the vessel and gear identification requirements applicable
to the harvesting of spiny lobsters by traps in Florida's waters in
sections 370.14(2)(a) and (3) and 370.142(2)(b), Florida Statutes, in
effect as of July 1, 1994, and in Rule 46-24.006(3), (4), and (5),
Florida Administrative Code, in effect as of June 1, 1994.
(2) An owner or operator of a vessel that is used to harvest spiny
lobsters by diving in the EEZ off Florida must comply with the vessel
identification requirements applicable to the harvesting of spiny
lobsters by diving in Florida's waters in Rule 46-24.006(6), Florida
Administrative Code, in effect as of June 1, 1994.
(3) The incorporation by reference in paragraphs (a)(1) and (a)(2)
of this section of sections 370.14(2)(a) and (3) and 370.142(2)(b),
Florida Statutes, and Rule 46-24.006(3), (4), (5), and (6), Florida
Administrative Code, was approved by the Director of the Office of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the Florida Marine Fisheries Commission,
2540 Executive Center Circle West, Suite 106, Tallahassee, FL 32301;
telephone: 904-487-0554. Copies may be inspected at the Office of the
Regional Director; the Office of Fisheries Conservation and Management,
NMFS, 1315 East-West Highway, Silver Spring, MD; or the Office of the
Federal Register, 800 North Capitol Street NW, Suite 700, Washington,
DC.
* * * * *
[[Page 41831]]
Sec. 640.7 [Amended]
5. In Sec. 640.7, in paragraph (e), the reference to ``Sec. 640.20
(c)(1) and (c)(2)'' is revised to read ``Sec. 640.20(b)(3)(i) and
(b)(3)(ii)''; in paragraph (f), the reference to ``Sec. 640.20(d)'' is
revised to read ``Sec. 640.20(b)(4)''; in paragraph (p), the reference
to ``Sec. 640.23(a) or (b)'' is revised to read ``Sec. 640.23(a),
(b)(1), or (b)(2)'' and the reference to ``Sec. 640.23(c) and (d)'' is
revised to read ``Sec. 640.23(b)(3) and (b)(4)''; in paragraph (q), the
reference to ``Sec. 640.23(d)'' is revised to read
``Sec. 640.23(b)(4)''; in paragraph (r), the reference to
``Sec. 640.23(g)'' is revised to read ``Sec. 640.23(d)''; and in
paragraph (s), the reference to ``Sec. 640.23(h)'' is revised to read
``Sec. 640.23(e)''.
6. Section 640.20 is revised to read as follows:
Sec. 640.20 Seasons.
(a) EEZ off the southern Atlantic states, other than Florida. In
the EEZ off the southern Atlantic states, other than Florida, there are
no seasonal restrictions on the harvest of spiny lobster or on the
possession of traps.
(b) EEZ off Florida and off the Gulf states, other than Florida--
(1) Commercial and recreational fishing season. The commercial and
recreational fishing season for spiny lobster in the EEZ off Florida
and the EEZ off the Gulf states, other than Florida, begins on August 6
and ends on March 31.
(2) Special recreational fishing seasons--(i) EEZ off Florida.
There is a 2-day special recreational fishing season in the EEZ off
Florida on the last Wednesday and successive Thursday of July each year
during which fishing for spiny lobster is limited to diving or use of a
bully net or hoop net. (See Sec. 640.22(a) for general prohibitions on
gear and methods.) In the EEZ off Monroe County, Florida, no person may
harvest spiny lobster by diving at night, that is, from 1 hour after
official sunset to 1 hour before official sunrise, during this 2-day
special recreational fishing season.
(ii) EEZ off the Gulf states, other than Florida. There is a 2-day
special recreational fishing season in the EEZ off the Gulf states,
other than Florida, during the last Saturday and successive Sunday of
July each year during which fishing for spiny lobster may be conducted
by authorized gear and methods other than traps. (See Sec. 640.22(a)
for general prohibitions on gear and methods.)
(3) Possession of traps. (i) In the EEZ off Florida, the rules and
regulations applicable to the possession of spiny lobster traps in
Florida's waters in Rule 46-24.005(3), (4), and (5), Florida
Administrative Code, in effect as of June 1, 1994, apply in their
entirety to the possession of spiny lobster traps in the EEZ off
Florida. This incorporation by reference was approved by the Director
of the Office of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from the Florida
Marine Fisheries Commission, 2540 Executive Center Circle West, Suite
106, Tallahassee, FL 32301; telephone: 904-487-0554. Copies may be
inspected at the Office of the Regional Director; the Office of
Fisheries Conservation and Management, NMFS, 1315 East-West Highway,
Silver Spring, MD; or the Office of the Federal Register, 800 North
Capitol Street NW, Suite 700, Washington, DC.
(ii) In the EEZ off the Gulf states, other than Florida, a spiny
lobster trap may be placed in the water prior to the commercial and
recreational fishing season, which is specified in paragraph (b)(1) of
this section beginning on August 1 and must be removed from the water
after such season not later than April 5.
(iii) A spiny lobster trap, buoy, or rope in the EEZ off Florida or
in the EEZ off the Gulf states, other than Florida, during periods not
authorized in paragraphs (b)(3)(i) and (b)(3)(ii) of this section will
be considered unclaimed or abandoned property and may be disposed of in
any manner considered appropriate by the Assistant Administrator or an
authorized officer. An owner of such trap, buoy, or rope remains
subject to appropriate civil penalties.
(4) Possession of spiny lobsters. In the EEZ off Florida and the
Gulf states, a whole or a part of a spiny lobster subject to these
regulations may only be possessed during the commercial and
recreational fishing season and the special recreational fishing season
specified in Sec. 640.20, unless accompanied by proof of lawful harvest
in the waters of a foreign nation. Consistent with the provisions of
paragraphs (b)(3)(i) and (ii) of this section, a spiny lobster in a
trap in this area will not be deemed to be possessed provided such
spiny lobster is returned immediately to the water unharmed when a trap
is removed from the water between March 31 and April 15.
(c) Primacy of seasonal restrictions in the EEZ off Florida. The
seasonal restrictions applicable in the EEZ off Florida apply to all
spiny lobsters and traps in the EEZ off Florida, without regard to
harvest or use elsewhere, unless accompanied by proof of lawful harvest
elsewhere.
7. In Sec. 640.22, a sentence is added to the end of paragraph
(a)(1) and paragraph (b)(3)(i) is revised to read as follows:
Sec. 640.22 Gear and diving restrictions.
(a) * * *
(1) * * * Hook, as used in this paragraph (a)(1), does not include
a hook in a hook-and-line fishery for species other than spiny lobster;
and possession of a spiny lobster that has been speared, pierced, or
punctured by such hook is not considered evidence that prohibited gear
was used to take the spiny lobster, provided no prohibited gear is on
board the vessel.
* * * * *
(b) * * *
(3) * * *
(i) For traps in the EEZ off Florida, by the Florida Division of
Law Enforcement, Department of Environmental Protection, in accordance
with the procedures in Rule 46-24.006(7), Florida Administrative Code,
in effect as of June 1, 1994. This incorporation by reference was
approved by the Director of the Office of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from the Florida Marine Fisheries Commission, 2540 Executive
Center Circle West, Suite 106, Tallahassee, FL 32301; telephone: 904-
487-0554. Copies may be inspected at the Office of the Regional
Director; the Office of Fisheries Conservation and Management, NMFS,
1315 East-West Highway, Silver Spring, MD; or the Office of the Federal
Register, 800 North Capitol Street NW, Suite 700, Washington, DC.
* * * * *
8. Section 640.23 is revised to read as follows:
Sec. 640.23 Bag/possession limits.
(a) EEZ off the southern Atlantic states, other than Florida. The
daily bag or possession limit for spiny lobster in or from the EEZ off
the southern Atlantic states, other than Florida, is two per person for
commercial and recreational fishing, year-round.
(b) EEZ off Florida and off the Gulf states, other than Florida--
(1) Commercial and recreational fishing season. Except as specified in
paragraphs (b)(3) and (b)(4) of this section, during the commercial and
recreational fishing season specified in Sec. 640.20(b)(1), the daily
bag or possession limit of spiny lobster in or from the EEZ off Florida
and off the Gulf states, other than Florida, is six per person.
(2) Special recreational fishing seasons. During the special
recreational
[[Page 41832]]
fishing seasons specified in Sec. 640.20(b)(2), the daily bag or
possession limit of spiny lobster--
(i) In or from the EEZ off the Gulf states, other than Florida, is
six per person;
(ii) In or from the EEZ off Florida other than off Monroe County,
Florida, is twelve per person; and
(iii) In or from the EEZ off Monroe County, Florida, is six per
person.
(3) Exemption from the bag/possession limit. During the commercial
and recreational fishing season specified in Sec. 640.20(b)(1), a
person is exempt from the bag and possession limit specified in
paragraph (a) of this section, provided--
(i) The harvest of spiny lobsters is by diving, or by the use of a
bully net, hoop net, or spiny lobster trap; and
(ii) The vessel from which the person is operating has on board the
required licenses, certificates, or permits, as specified in
Sec. 640.4(a)(1).
(4) Harvest by net or trawl. During the commercial and recreational
fishing season specified in Sec. 640.20(b)(1), aboard a vessel with the
required licenses, certificates, or permits specified in
Sec. 640.4(a)(1) that harvests spiny lobster by net or trawl or has on
board a net or trawl, the possession of spiny lobster in or from the
EEZ off Florida and off the Gulf states, other than Florida, may not
exceed at any time 5 percent, whole weight, of the total whole weight
of all fish lawfully in possession on board such vessel. If such vessel
lawfully possesses a separated spiny lobster tail, the possession of
spiny lobster in or from the EEZ may not exceed at any time 1.6
percent, by weight of the spiny lobster or parts thereof, of the total
whole weight of all fish lawfully in possession on board such vessel.
For the purposes of this paragraph (b)(4), the term ``net or trawl''
does not include a hand-held net, a loading or dip net, a bully net, or
a hoop net.
(5) Diving at night. The provisions of paragraph (b)(3) of this
section notwithstanding, a person who harvests spiny lobster in the EEZ
by diving at night, that is, from 1 hour after official sunset to 1
hour before official sunrise, is limited to the bag limit specified in
paragraph (b)(1) of this section, whether or not a Federal vessel
permit specified in Sec. 640.4(a)(1) has been issued to and is on board
the vessel from which the diver is operating.
(c) Combination of bag/possession limits. A person who fishes for
or possesses spiny lobster in or from the EEZ under a bag or possession
limit specified in paragraph (a) or (b) of this section may not combine
the bag or possession limits of those paragraphs or combine such bag or
possession limit with a bag or possession limit applicable to state
waters.
(d) Responsibility for bag/possession limits. The operator of a
vessel that fishes for or possesses spiny lobster in or from the EEZ is
responsible for the cumulative bag or possession limit specified in
paragraphs (a) and (b) of this section applicable to that vessel, based
on the number of persons aboard.
(e) Transfer at sea. A person who fishes for or possesses spiny
lobster in or from the EEZ under a bag or possession limit specified in
paragraph (a) or (b) of this section may not transfer a spiny lobster
at sea from a fishing vessel to any other vessel, and no person may
receive at sea such spiny lobster.
Sec. 640.24 [Amended]
9. In Sec. 640.24, the word ``Secretary'' is revised to read
``Assistant Administrator''.
[FR Doc. 95-20024 Filed 8-11-95; 8:45 am]
BILLING CODE 3510-22-F
