2015-28544. 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.

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, [phone].

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.

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 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.

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

1. The authority citation for part 697 continues to read as follows:

Authority: 16 U.S.C. 5101 et seq.

2. In § 697.7, revise paragraphs (c)(1)(xxx)(B) to read as follows:

§ 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 §§ 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 § 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.

* * * * *