75916 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

There are no recordkeeping or reporting

requirements associated with this rule.

A copy of the IRFA is available from

the Council (see ADDRESSES).

The President has directed Federal

agencies to use plain language in their

communications with the public,

including regulations. To comply with

this directive, we seek public comment

on any ambiguity or unnecessary

complexity arising from the language

used in this proposed rule. Such

comments should be sent to Patricia A.

Kurkul, the Regional Administrator (see

ADDRESSES).

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and

recordkeeping requirements.

Dated: November 28, 2000.

William T. Hogarth,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 648 is proposed

to be amended as follows:

PART 648—FISHERIES OF THE

NORTHEASTERN UNITED STATES

1. The authority citation for part 648

continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 648.21, paragraph (e) is revised

to read as follows:

§ 648.21 Procedures for determining initial

annual amounts.

* * * * *

(e) Distribution of annual Loligo squid

commercial quota. (1) Beginning

January 1, 2001, a commercial quota

will be allocated annually for Loligo

squid into quarterly periods, based on

the following percentages:

COMMERCIAL QUOTA

Quarter Percent

I JanuaryMarch 33.23

II AprilJune 17.61

III JulySeptember 17.30

IV October-December 31.86

(2) Beginning January 1, 2001, any

overages of commercial quota landed

from Quarter I will be subtracted from

Quarter III and any overages of

commercial quota landed from Quarter

II will be subtracted from Quarter IV.

* * * * *

3. In § 648.22, paragraph (a) is revised

to read as follows:

§ 648.22 Closure of the fishery.

(a) General. NMFS shall close the

directed mackerel fishery in the EEZ

when U.S. fishermen have harvested 80

percent of the DAH of that fishery if

such closure is necessary to prevent the

DAH from being exceeded. The closure

shall remain in effect for the remainder

of the fishing year, with incidental

catches allowed as specified in

paragraph (c) of this section, until the

entire DAH is attained. When the

Regional Administrator projects that

DAH will be attained for mackerel,

NMFS will close the mackerel fishery in

the EEZ, and the incidental catches

specified for mackerel in paragraph (c)

of this section will be prohibited. NMFS

will close the directed fishery in the

EEZ for Loligo when 80 percent is

harvested in Quarters I, II and III, and

when 95 percent of the total annual

DAH has been harvested. The closure of

the directed fishery will be in effect for

the remainder of the fishing year, with

incidental catches allowed as specified

in paragraph (c) of this section. NMFS

will close the directed fishery in the

EEZ for Illex or butterfish when 95

percent of the DAH has been harvested.

The closure of the directed fishery will

be in effect for the remainder of the

fishing year, with incidental catches

allowed as specified in paragraph (c) of

this section.

* * * * *

[FR Doc. 00–30819 Filed 12–4–00; 8:45 am]

BILLING CODE: 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 697

[Docket No. 001120327-0327-01; I.D.

091800H ]

RIN 0648-AO58

American Lobster Fishery

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule.

SUMMARY: NMFS proposes regulations to

modify the management measures

applicable to the American lobster

fishery. This action would exempt black

sea bass fishers who concurrently hold

limited access lobster and limited access

black sea bass permits from the more

restrictive gear requirements in the

lobster regulations when fishing in

Lobster Management Area (LMA) 5 if

they elect to be restricted to the non-trap

lobster allowance while targeting sea

bass in LMA 5. This regulation also

clarifies that lobster trap regulations do

not affect trap gear requirements for

fishermen who do not possess a limited

access American lobster permit. The

intent of these regulations is to relieve

restrictions on fishers that were

unintended, without compromising

lobster conservation goals.

DATES: Comments on this proposed rule

must be received at the appropriate

address (see ADDRESSES) no later than 5

p.m., eastern standard time, on

December 26, 2000.

ADDRESSES: Send written comments on

this proposed rule to, and obtain copies

of supporting documents that also

include a Draft Environmental

Assessment/Regulatory Impact Review

(DEA/RIR) from, the Director, State,

Federal and Constituent Programs

Office, NMFS, One Blackburn Drive,

Gloucester, MA 01930. Comments will

not be accepted if submitted via e-mail

or Internet. Comments regarding the

collection of information requirements

contained in the proposed rule should

be sent to: the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Robert Ross, NMFS, Northeast Region,

978-281-9234.

SUPPLEMENTARY INFORMATION: NMFS

proposes regulations to modify the

Federal lobster conservation

management measures issued as part of

a Federal/state cooperative management

effort under the authority of the Atlantic

Coastal Fisheries Cooperative

Management Act (ACFCMA). Section

804(b) of ACFCMA authorizes NMFS to

issue regulations governing fishing in

the Exclusive Economic Zone (EEZ) that

are compatible with the effective

implementation of the Atlantic States

Marine Fisheries Commission’s

American Lobster Interstate Fishery

Management Plan and consistent with

the national standards set forth in

section 301 of the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act).

On December 6, 1999, NMFS, in an

effort to end overfishing of the

American lobster resource, published a

final rule (64 FR 68228) creating seven

LMAs; imposing trap limits (800 traps/

vessel in LMA 5), trap tagging

requirements, and a maximum trap size;

increasing the lobster escape vent size;

restricting lobster trap fishers to their

annually selected LMAs; and

establishing a harvest limit for non-trap

vessels. A Final Environmental Impact

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75917

Statement/Regulatory Impact Review

was prepared for the action and was

published on May 28, 1999 (64 FR

29025).

The lobster management program uses

a gear conservation and effort limitation

strategy to control lobster mortality.

Fishing effort is limited by limiting the

access of new vessels to the fishery and

the number and size of traps that may

be fished per vessel. To enforce these

measures, lobster traps must be tagged,

and the tags must be traceable to the

owner of each vessel. A minimum

lobster size combined with a

corresponding escape vent opening in

traps helps control mortality on juvenile

lobsters. A maximum trap size was

imposed to preclude possible increases

in trap efficiency. These measures are

applied to all traps designed for, and

capable of, catching lobster. NMFS does

not consider traps targeting other

species and fished by non-lobster permit

holders to be ‘‘designed for’’ or ‘‘capable

of’’ catching lobsters. This proposed

rule would remove the present

definition of trap and add a definition

for lobster trap to in essence exclude

those traps fished by vessels not eligible

for limited access lobster permits (noneligible vessels). Non-eligible vessels are

prohibited from retaining, landing, or

possessing American lobster.

The black sea bass fishery is managed

under the Fishery Management Plan for

Summer Flounder, Scup, and Black Sea

Bass (FMP) developed by the MidAtlantic Fishery Management Council

(Mid-Atlantic Council) under the

Magnuson-Stevens Act. The black sea

bass fishery was added to the FMP

when Amendment 9 was approved and

implemented in 1997 (61 FR 58461,

November 15, 1996). Amendment 9 to

the FMP established a limited access

permit system for the entry of new

vessels to the fishery.

Black sea bass (Centropristis striata)

and American lobster (Homarus

americanus) are often harvested using

similarly configured fish traps or pots,

although black sea bass traps are not

usually baited. Black sea bass fishermen

prefer to use as many as 1,500 traps/

vessel but are now restricted by the

lobster regulations under 50 CFR part

697 to 800 traps/vessel when fishing in

LMA 5. Black sea bass fishermen also

prefer to use traps with smaller escape

vents than the lobster regulations allow.

In the Mid-Atlantic where the two

fisheries overlap considerably, the two

management strategies come into

conflict. Concerned about the impacts

on commercial fishing enterprises from

differing management systems, the MidAtlantic Council and the ASMFC

requested that NMFS provide an

exemption from the lobster gear

requirements to black sea bass fishers

when fishing in LMA 5. LMA 5, which

is located in the Mid-Atlantic area, has

historically represented less than 2

percent of the total annual lobster

landings. The Mid-Atlantic Council and

ASMFC recommended further that the

non-trap lobster allowance that applies

to non-trap lobster fishers be applied to

exempted black sea bass fishers. As a

result, NMFS prepared a DEA/RIR and

this proposed rule to address this

management issue.

This action would allow dual permit

status vessels–vessels having limited

access eligibility in the black sea bass

and lobster fisheries– to elect to

participate in a program that exempts

them from the lobster gear restrictions

while targeting black sea bass in LMA

5 but which limits them to the non-trap

lobster allowance. The non-trap

allowance is a landing limit of 100

lobsters per day and up to 500 lobsters

per trip for trips 5 days or longer.

To participate in the proposed

exemption, a vessel would obtain an

‘‘Area 5 Trap Waiver’’ category permit

through the normal permitting process.

A vessel with the waiver would be

limited to the non-trap allowance and

may only land lobsters in greater

numbers by formally canceling the

‘‘Area 5 Trap Waiver’’ permit and

switching to the commercial lobster

category, again through the normal

Federal permitting process.

Cancellations of the ‘‘Area 5 Trap

Waiver’’ permit would be treated

administratively as a lobster permit

category change and would not result in

the loss of limited access eligibility in

either the lobster or the black sea bass

fisheries. Vessels would be required to

comply with the regulations that are

appropriate for the target fishery and

with the category of permits presently

issued.

The creation of this new permit

category addresses a common problem

in managing overlapping or mixed

fisheries. Ideally, conservation

restrictions should be tailored as closely

as possible to the target fishery; for

instance, lobster fishers would be

required to comply with the lobster gear

restrictions and black sea bass fishers

with sea bass restrictions. In mixed

fisheries, tailoring becomes more

difficult because the least restricted

fishery can be used as a loophole for the

other; in this case, black sea bass traps

can become a loophole in the lobster

conservation program. This proposed

rule isolates and prohibits the

problematic trips, namely, those that

would target lobster with black sea bass

traps. Only incidental amounts of

lobster could be retained from such

trips.

NMFS has prepared a DEA/RIR that

discusses the impacts of this proposed

rule as well as the impacts of the

reasonable alternatives. Because access

to both the lobster and black sea bass

fisheries is closed to new entrants, the

universe of vessels that may be affected

by this rule is estimated as the number

of vessels from states bordering LMA 5

that are currently eligible to fish in both

fisheries, or 204 vessels. Fewer vessels

actually land both species in 1 year or

have selected LMA 5 to fish in.

The impacts on the lobster resource,

essential fish habitat, or protected

resources from the exemption are

expected to be neutral, while a positive

economic benefit should accrue to some

fishers. The exemption provides an

opportunity for dual permit status

vessel owners to maintain their limited

access eligibility in the fisheries in

which they have historically

participated. Although there is an

additional administrative burden

imposed on NMFS and on those opting

for this exemption, NMFS believes this

is an important and necessary trade-off

for enforceability and conservation

effectiveness.

This alternative preserves the ability

to fish in both fisheries in a single year

under rules appropriate to the fisher’s

preferred target and without the loss of

limited access status in either fishery.

Detection of violations is simplified

through the permit mechanism because

an agent would need only to compare

the observed landings with the rules

associated with the permit.

Environmental benefits to marine

habitat, mammals, and other protected

species are generally considered to

increase as the amount of gear in the

water decreases. A change in the

number of traps deployed as a result of

this or of any alternative would depend

on whether dual status vessels

previously used separate traps for the

lobster and black sea bass fisheries and

on the individual decisions made by the

affected fishers in reaction to the

measures imposed. If a lobster/black sea

bass vessel historically fished a separate

set of traps for each fishery, the

preferred alternative would potentially

restore this dual ability, but would not

allow simultaneous fishing of both types

of traps. While data is not available on

the number of dual status vessels fishing

separate traps for each fishery,

environmental impacts are expected to

be neutral.

Classification

This proposed rule is published under

the authority of the ACFCMA.

75918 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

Paragraphs (A) and (B) of section

804(b)(1) of the ACFCMA authorize the

Secretary of Commerce (Secretary) to

issue regulations in the EEZ that are

compatible with the effective

implementation of a coastal fishery

management plan and consistent with

the national standards set forth in

section 301 of the Magnuson-Stevens

Act. This authority has been delegated

to the Assistant Administrator for

Fisheries, NOAA (AA). The AA has

preliminarily determined that these

actions are consistent with the national

standards of the Magnuson-Stevens Act.

The AA, before making the final

determinations, will take into account

the data, views, and comments received

during the comment period.

An updated Biological Opinion under

section 7 of the Endangered Species Act

(ESA) was issued for the American

Lobster fishery on December 17, 1998. A

formal consultation concluded that the

continued operation of the American

lobster fishery operating under new

measures implemented to reduce

entanglements, ‘‘may affect but is not

likely to jeopardize the continued

existence of the northern right whale,

humpback whale, fin whale, blue whale,

sperm whale, sei whale, leatherback sea

turtle, and loggerhead sea turtle and is

not likely to destroy or adversely modify

critical habitat that has been designated

for the northern right whale.’’

As a result of entanglement events in

1999, including one mortality of a right

whale, NMFS is currently revising the

Atlantic Large Whale Take Reduction

Plan (ALWTRP) to determine what

changes or additional measures are

necessary to meet the plan objectives.

NMFS has re-initiated consultation on

the lobster fishery to determine whether

the revised ALWTRP will be an

acceptable reasonable and prudent

alternative to remove the likelihood of

jeopardy to right whales caused by the

lobster fishery.

As a result of the proposed measures,

traps targeting black sea bass in the

waters of LMA 5 could potentially

increase to levels in place prior to the

imposition of lobster trap limits.

However, there have been no observed

takes of ESA or Marine Mammal

Protection Act listed species in the

black sea bass trap fishery, and these

measures are expected to affect only a

small number of fishers. Therefore, this

proposal would not change the basis of

the Biological Opinion made on

December 17, 1998, or affect any

ongoing consultation for this fishery

under section 7 of the ESA.

The proposed measures for a LMA 5

Black Sea Bass Trap Waiver fall within

the scope of consultations on previous

American lobster and Black Sea Bass

FMP actions. Given the number of

vessels affected by these proposed

measures, the limited presence of

protected species most susceptible to

trap gear (i.e., right whales, humpback

whales) in the area, and the application

of ALWTRP measures to black sea bass

trap fishers, none of the proposed

measures is expected to result in the

addition of adverse impacts that would

change the basis for the determinations

in those consultations. Should activities

under this action change or new

information become available that

changes the basis for this determination,

consultation will be re-initiated.

NMFS has prepared a DEA/RIR,

supplemented by the preamble to this

proposed rule that describes the impact

this proposed rule, if adopted, would

have on small entities. A copy of this

analysis is available from NMFS (see

ADDRESSES). All participants in the

lobster and black sea bass fisheries are

considered to be small entities.

The Chief Counsel for Regulation of

the Department of Commerce certified

to the Chief Counsel for Advocacy of the

Small Business Administration that this

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities.

This certification is based on the

analysis in the DEA/RIR, which takes

into account the applicable criteria

established by the agency for

determining whether economic impacts

on small entities are ‘‘significant’’ under

the Regulatory Flexibility Act. The

factual basis for the certification is as

follows:

NMFS found no significant impact on

small entities because the proposed rule

would relieve a restriction on black sea

bass fishers who concurrently hold

limited access lobster and limited access

black sea bass permits and are thus

subject to the more restrictive gear

requirements in the lobster regulations.

The intent of these regulations is to

relieve unintended restrictions without

compromising lobster conservation

goals. Participating vessels in the LMA

5 trap waiver program would be exempt

from the 800 lobster traps per vessel

limit and the trap tagging requirements,

the maximum trap size requirement,

and the increased lobster escape vent

size requirement. Because of not being

subject to the smaller vent size

requirement, they would be able to

harvest black sea bass and because of

not being subject to the 800 traps/vessel

limitation some may even catch a

greater number of lobsters. Participating

vessels would be allowed to land the

non-trap allowance of lobster (100

lobsters per day and up to 500 lobsters

per trip for trips of over 5 days). In

addition, to the extent that a black sea

bass vessel is relieved from the lobster

gear restrictions, compliance costs

reductions of up to $1180 per inshore

vessel may be experienced. Eligible

vessels will not have to incur the costs

of converting black sea bass traps to

conform to the lobster regulations, will

not be forced to use less efficient lobster

gear when targeting black sea bass, and

will have greater flexibility to fish under

regulations and possession limits

appropriate to the target fishery. Eligible

vessels will also not be forced to incur

the cost of switching from trap gear to

towed gear. While these savings are not

considered substantial in terms of their

proportion to overall operating costs per

inshore vessel, each of these

considerations will enable participating

vessels to achieve higher levels of gross

revenue. The prospects for higher gross

revenue resulting from this regulatory

action, as well as the ability to maintain

and possibly improve the relative

competitive position for each affected

business, will result in a net

improvement in distributive impacts of

regulatory action.

The preferred alternative would also

allow dual permit holders to retain their

dual limited access status and to

alternately fish in the black sea bass and

lobster fisheries under appropriate

regulations for each of those species.

The need to permanently cancel access

to one or the other limited access

fisheries to avoid a conflicting

regulatory regime would be eliminated,

allowing fishers flexibility to adjust to

changing economic conditions in one or

the other fishery.

As a result, an initial regulatory

flexibility analysis was not prepared.

Notwithstanding any other provision

of law, no person is required to respond

to, nor shall any person be subject to a

penalty for failure to comply with, a

collection of information subject to the

requirements of the Paperwork

Reduction Act (PRA), unless that

collection-of-information displays a

currently valid Office of Management

and Budget (OMB) control number.

This proposed rule contains

collection-of-information requirements

subject to the PRA. The following are

the proposed new collection-ofinformation requirements and their

respective estimated response times that

have been submitted to OMB for

approval:

1. Initiate a permit category change

and select the LMA 5 Trap Waiver

Permit category (15 minutes);

2. Return a suspended limited access

lobster trap permit to NMFS (2

minutes); and

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75919

3. Initiate cancellation of a LMA 5

Trap Waiver Permit and re-activate a

suspended limited access lobster trap

permit (15 minutes).

The following collection-ofinformation requirements are being

restated and have already been

approved by OMB as shown: vessel

permit applications approved under

OMB control number 0648-0202 with

the response times per application of 30

minutes for a new application, and 15

minutes for renewal applications, and a

lobster trap tag requirement approved

under OMB control number 0648–0351

with a response time of 1 minute per

tag.

Public comment is sought regarding

whether these proposed collections of

information are necessary for the proper

performance of the functions of the

agency, including whether the

information has practical utility; the

accuracy of the burden estimates; ways

to enhance the quality, utility, and

clarity of the information to be

collected; and ways to minimize the

burden of the collection of information,

including information through the use

of automated collection techniques or

other forms of information technology.

Send comments regarding these

burden estimates or any other aspect of

the data requirements, including

suggestions for reducing the burden, to

NMFS and to the Office of Information

and Regulatory Affairs (see ADDRESSES).

This proposed rule has been

determined to be not significant for

purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 697

Fisheries, Fishing.

Dated: November 28, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 697 is proposed

to be 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.

Subpart A—General Provisions

2. In § 697.2, the definition of ‘‘Trap’’

is removed and a definition for ‘‘Lobster

trap’’ is added to read as follows:

§ 697.2 Definitions.

* * * * *

Lobster trap means any structure or

other device, other than a net, that is

placed, or designed to be placed, on the

ocean bottom and is designed for or is

capable of, catching lobsters. Red crab

fishing gear, fished deeper than 200

fathoms (365.8 m), and fishing gear

fished by a vessel not issued a limited

access lobster permit under § 697.4(a),

are gear deemed not to be lobster traps

for the purpose of this part, and are not

subject to the provisions of this part.

* * * * *

3. In § 697.4, paragraph (d)(1) is

revised and paragraph (p) is added to

read as follows:

§ 697.4 Vessel permits and trap tags.

* * * * *

(d) * * * (1) Beginning fishing year

2000, any lobster trap fished in Federal

waters must have a valid Federal lobster

trap tag permanently attached to the

trap bridge or central cross-member,

unless exempt under § 697.26.

* * * * *

(p) Permit category change. A vessel

permit category change may be issued

by the Regional Administrator when

requested in writing by the owner or by

an authorized representative of a vessel

meeting the eligibility requirements

under § 697.26(a).

4. In § 697.7, paragraphs (c)(1)(vii)

through (x) are revised to read as

follows:

§ 697.7 Prohibitions.

* * * * *

(c) * * *

(1) * * *

(vii) Possess, deploy, fish with, haul,

harvest lobster from, or carry aboard a

vessel trap gear in excess of the trap

limits specified in § 697.19 unless

exempted pursuant to § 697.26.

(viii) Possess, deploy, haul, harvest

lobster from, or carry aboard a vessel

any trap gear that does not satisfy the

requirements on gear identification and

marking, escape vents, ghost panel and

maximum trap size specified in

§ 697.21, unless such gear has been

rendered unfishable, or unless

exempted pursuant to § 697.26.

(ix) Possess, deploy, haul, harvest

lobster from, or carry aboard a vessel

any trap gear not tagged in accordance

with the requirements in § 697.19,

unless such gear has been rendered

unfishable, or unless exempted

pursuant to § 697.26.

(x) Fail to produce, or cause to be

produced, lobster trap tags when

requested by an authorized officer,

unless exempted pursuant to § 697.26.

* * * * *

Subpart B—Management Measures

5. In § 697.19, paragraph (e) is added

to read as follows:

§697.19 Trap limits and trap tag

requirements for vessels fishing with traps.

* * * * *

(e) Exemption. Any vessel issued an

Area 5 Trap Waiver permit under

§ 697.26(a) is exempt from the

provisions of this section.

6. In § 697.21, paragraph (g) is added

to read as follows:

§ 697.21 Gear identification and marking,

escape vent, maximum trap size, and ghost

panel requirements.

* * * * *

(g) Exemption. Any vessel issued a

permit under § 697.26(a) is exempt from

the provisions of this section.

7. A new § 697.26 is added to subpart

B to read as follows:

§ 697.26 Lobster Management Area 5 Trap

Waiver.

(a) Eligibility. Vessels eligible for

limited access lobster permits under

§ 697.4(a)(1) and limited access black

sea bass permits under § 648.4(a)(7)(i) of

this title may request an Area 5 Trap

Waiver Permit, under the procedures

described in § 697.4.

(b) Restrictions. A vessel issued an

Area 5 Trap Waiver permit under this

section may engage in trap fishing for

black sea bass in Lobster Management

Area 5 and is exempt from the

provisions of § 697.19 and § 697.21 if

such fishing is conducted in accordance

with all other provisions of this section

except § 697.19 and § 697.21 and all

other Federal and state laws and

regulations applicable to lobster and

black sea bass fishing.

(1) A vessel issued a permit under this

section may retain, land and sell an

incidental allowance of lobster equal to

the non-trap harvest restrictions

specified in § 697.17(a).

(2) A vessel issued a permit under this

section may not possess on board or

deploy bait or baited traps.

[FR Doc. 00–30822 Filed 12–4–00; 8:45 am]

BILLING CODE 3510–22–S