[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Proposed Rules]
[Pages 75916-75919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30822]


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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.

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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

[[Page 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 (non-eligible 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 Mid-Atlantic 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 Mid-Atlantic 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.

[[Page 75918]]

 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-of-
information 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

[[Page 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-of-information 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 Sec. 697.2, the definition of ``Trap'' is removed and a 
definition for ``Lobster trap'' is added to read as follows:


Sec. 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 Sec.  
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 Sec. 697.4, paragraph (d)(1) is revised and paragraph (p) is 
added to read as follows:


Sec. 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 Sec.  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 Sec. 697.26(a).

    4. In Sec. 697.7, paragraphs (c)(1)(vii) through (x) are revised to 
read as follows:


Sec. 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 Sec. 697.19 unless exempted pursuant to Sec. 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 Sec. 697.21, unless such gear has been rendered 
unfishable, or unless exempted pursuant to Sec. 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 
Sec. 697.19, unless such gear has been rendered unfishable, or unless 
exempted pursuant to Sec. 697.26.
    (x) Fail to produce, or cause to be produced, lobster trap tags 
when requested by an authorized officer, unless exempted pursuant to 
Sec. 697.26.
* * * * *

Subpart B--Management Measures

    5. In Sec.  697.19, paragraph (e) is added to read as follows:


Sec. 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 
Sec. 697.26(a) is exempt from the provisions of this section.

    6. In Sec. 697.21, paragraph (g) is added to read as follows:


Sec. 697.21  Gear identification and marking, escape vent, maximum trap 
size, and ghost panel requirements.

* * * * *
    (g) Exemption. Any vessel issued a permit under Sec. 697.26(a) is 
exempt from the provisions of this section.

    7. A new Sec. 697.26 is added to subpart B to read as follows:


Sec. 697.26  Lobster Management Area 5 Trap Waiver.

    (a) Eligibility. Vessels eligible for limited access lobster 
permits under Sec. 697.4(a)(1) and limited access black sea bass 
permits under Sec. 648.4(a)(7)(i) of this title may request an Area 5 
Trap Waiver Permit, under the procedures described in Sec. 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 
Sec. 697.19 and Sec. 697.21 if such fishing is conducted in accordance 
with all other provisions of this section except Sec. 697.19 and 
Sec. 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 Sec. 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