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:

Interim final rule; request for comments.

SUMMARY:

Based on the Atlantic States Marine Fisheries Commission's recommendations, we are implementing aggregate ownership caps in Lobster Conservation Management Areas 2 and 3, a maximum trap cap reduction in Area 3, and mandatory coastwide electronic harvester reporting for all federally permitted lobster vessels. The ownership caps and trap cap reduction measures are intended to reduce fishing exploitation and latent effort in the trap fishery by scaling the fishery to the size of the Southern New England lobster stock. The harvester reporting requirement is intended to improve the spatial resolution of harvester data, and improve and expand the collection of fishery effort data. This action is necessary to better manage the lobster fishery toward sustainability and to ensure fishery regulations for the lobster fishery in Federal waters remain compatible with the intent of the Commission's Interstate Fishery Management Plan for American Lobster and consistent with the Atlantic Coastal Fisheries Cooperative Management Act.

DATES:

Effective dates: This rule is effective November 1, 2023; except for amendatory instructions 3(f) and 4 (§ 697.4(q) and (§ 697.6(n)(1)(ii)(B)), which are effective April 1, 2024; and amendatory instruction 6 (§ 697.19(c) and (m)), which is effective May 1, 2025.

Comments due date: Written comments on this interim final rule must be received on or before December 1, 2023.

ADDRESSES:

You may submit comments, identified by NOAA–NMFS–2022–0032, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter “NOAA–NMFS–2022–0032” in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personally identifiable information ( e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields, if you wish to remain anonymous).

A copy of the environmental assessment, including the Regulatory Impact Review (RIR) and the Regulatory Flexibility Act (RFA) analyses is available online at: https://www.fisheries.noaa.gov/action/proposed-measures-federal-american-lobster-fishery. You may also request copies of the environmental assessment, including the Regulatory Impact Review (RIR) and the Regulatory Flexibility Act (RFA) analyses prepared for this action at: National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930–2276 or by calling (978) 281–9315.

Copies of the Atlantic States Marine Fisheries Commission's Addenda to the Interstate Fishery Management Plan for American Lobster are available at: https://asmfc.org/species/american-lobster under the heading Management Plans & FMP reviews.

FOR FURTHER INFORMATION CONTACT:

Allison Murphy, Fishery Policy Analyst, (978) 281–9122.

SUPPLEMENTARY INFORMATION:

Background

Statutory Authority

These regulations modify Federal lobster fishery management measures in the Exclusive Economic Zone (EEZ) under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101 et seq.). This authority states that, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) and, after consultation with the appropriate fishery management council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, from 3 to 200 nautical miles offshore. The regulations must be: (1) Compatible with the effective implementation of an Interstate Fishery Management Plan developed by the Atlantic States Marine Fisheries Commission (hereafter Commission); and (2) consistent with the National Standards set forth in section 301 of the Magnuson-Stevens Act.

Purpose and Need for Management

The purpose of this action is to manage the American lobster fishery to maximize resource sustainability, recognizing that Federal management occurs in concert with state management, and thus, that compatibility between state and Federal measures is crucial to the overall success of American lobster management. To achieve this purpose, we are responding to state management measures to address poor stock conditions and persistent recruitment failure of the Southern New England (SNE) American lobster stock. We are also responding to efforts to improve the spatial resolution of harvester data, and improve and expand the collection of fishery effort data. A full description of the Commission's recommendations and justification for measures, as well as NMFS' rationale for measures ultimately proposed is included in the proposed rule (87 FR 41084, July 11, 2022) and is not repeated here.

Approved Measures

Area 2 Measures

In Area 2, we are implementing an ownership cap that would restrict an entity to 800 Area 2 traps, effective on May 1, 2025, as proposed, regardless of the status of those traps (actively fished, inactive, and associated with a permit in confirmation of permit history, etc.). We are accepting additional comment on this measure, as discussed below. This action does not place a limit on the number of permits that can be owned. This measure complements the Commission's Area 2 recommendations in Addendum XXI (see ADDRESSES ), but does not include all of the specific Area 2 measures as originally envisioned. The Commission intended Addendum XXI measures be implemented in conjunction with the 2016–2021 Area 2 trap reductions, including trap `banking.' Trap banking was intended to be a tool for industry to obtain additional allocation in excess of the maximum trap cap, and in advance of the annual trap reductions to avoid engaging in annual trap transfers to mitigate the trap cuts. Given that the annual 2016–2021 trap reductions are complete, the trap `banking' provisions of Addendum XXI are no longer a necessary element of the Area 2 management plan. This ownership cap of 800 Area 2 traps, effective on May 1, 2025, incorporates elements of Addendum XXI within the current context of the fishery.

As discussed in greater detail in the proposed rule (87 FR 41084, July 11, 2022), the Commission's goals were to address latent effort and scale the fishery to the size of the lobster stock to allow for potential stock rebuilding, and to preserve the owner/operator nature of the fishery. Our analysis of 2019 permit and trap data indicated that the vast majority (85 percent) of Area 2 entities own a single permit, and thus have a trap allocation of 800 traps or fewer. Thus, as the vast majority of the fishery already complies with this requirement, few negative economic impacts are expected to result from this approved measure, though these entities would be prevented from building up their businesses beyond 800 traps in the future.

Addendum XXI originally included a provision that would allow an entity owning two or more permits ( i.e., 1,600 (or more) traps) as of 2003 to retain their traps, but they would not be allowed to expand further by owning or sharing ownership of any additional traps. Consistent with this recommendation, entities who exceeded the 800-trap limit as of May 1, 2022, may retain their trap allocations, but cannot accrue ownership of additional traps.

Based on 2019 permit data, approximately 15 percent of Area 2 entities (5 entities) exceeded the approved ownership cap of 800 traps, due to owning outright, or having an ownership interest in, multiple Federal Area 2 permits. These five entities are a small portion of the fishery and demonstrate that substantial consolidation in the Area 2 fishery has not taken place. As this measure allows entities who exceeded the 800-trap limit as of May 1, 2022, to retain their trap allocations, few negative economic impacts are expected to result from this action, though these entities would be prevented from acquiring additional traps beyond their current allocations in the future. This allowance is entity-specific, and does not transfer with permits if they are sold to a new entity that did not have a trap higher limit on May 1, 2022.

This action does not place limits on the number of permits that an Area 2 entity may own. Entities would be free to own or purchase additional permits, provided that the total trap allocation across those permits does not exceed 800 traps (or the entity-specific allocation for those entities who exceeded the 800-trap limit as of May 1, 2022). Entities with multiple Federal Area 2 permits would be free to determine how to divide their trap allocation across multiple permits and would be free to adjust permit-specific trap allocations using the annual trap transfer program.

During the proposed rule (87 FR 41084, July 11, 2022) comment period, we received several comments that our management partners and industry need additional time to understand these measures, consider them in the current context of the fishery, and provide adequate comment. While we are approving these measures in this action, we are delaying implementation until May 1, 2025, while we accept additional public comments on these measures. Upon consideration of additional comments we receive, we will evaluate the Area 2 and 3 measures in this interim final rule, and, if necessary and appropriate, publish a subsequent rule to address any changes.

Area 3 Measures

This action implements two separate but related measures in Area 3. First, this action reduces the maximum number of traps that could be allocated to a permit in Area 3 ( i.e., maximum trap cap) from 1,945 traps to 1,548 traps, over the course of three years, as outlined in Table 1. We will begin implementing the 3-year maximum trap cap reductions beginning on May 1, 2025, and at the start of the following two fishing years. This maximum trap cap will be assessed on a per permit basis and may result in trap reductions if a permit's trap allocation exceeds this limit in a given fishing year. A permit holder would be free to use the annual trap transfer program to adjust their vessels' trap allocations during the maximum trap cap reductions.

Based on 2019 permit data, 21 permits have trap allocations that exceed the first-year cap of 1,805 by a total of just over 1,000 traps. In the second year of the reduction to a maximum trap cap of 1,629 traps, 37 permits have trap allocations that exceed the cap, by a total of just over 6,000 traps. By the final year of the reductions to a maximum trap cap of 1,548 traps, 43 permits would have trap allocations that exceed the cap, by just over 9,000 traps. Only the permits that are in excess of the maximum trap cap would be affected by this measure. We expect that some negative economic impacts may result from decreasing the maximum trap cap for permit holders that exceed the ultimate cap of 1,548 traps. We estimated that, at most, a corresponding loss of $600,000 (in 2019 dollars) in collective lost trap value and profit in the first year could be expected by these permit holders, as discussed in greater detail below. As discussed above, these vessel owners would be free to use the trap transfer program to either sell the right to fish with these excess traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet.

Second, as of May 1, 2025, we will implement an aggregate ownership cap, at the entity level, which would continue to allow an entity to accumulate and own as many permits as it desired, but would cap the number of traps an entity could own across permits to the equivalent of five times the maximum trap cap. The aggregate ownership cap would be reduced over three years, in proportion to the maximum trap cap reduction, as summarized in Table 1. This action does not place a limit on the number of permits that can be owned; but limits the total aggregate number of traps that an entity may own across all permits.

As discussed in greater detail in the proposed rule (87 FR 41084, July 11, 2022), the Commission's goals were to address latent effort and scale the fishery to the size of the lobster stock to allow for potential stock rebuilding, and to limit consolidation in the Area 3 fishery. A review of 2019 Area 3 permit and trap allocations by entity reveals that a substantial level of consolidation has not occurred, as only two entities exceed the final aggregate ownership allocation of 7,740 traps. Entities below this limit as of May 1, 2022, would be allowed to purchase permits or additional traps up to the aggregate ownership cap of 7,740 traps. For entities that exceeded the aggregate ownership cap as of May 1, 2022, their trap allocations will be capped at their aggregate level as of May 1, 2022, and will be prohibited from exceeding this level. Although these entities may maintain ownership of their total May 1, 2022, trap allocations, each individual permit is still subject to the maximum trap cap, including the approved 3-year maximum trap cap reductions. In other words, the ownership cap is independent of the trap reductions. Even if an entity is able to retain an aggregate trap allocation above an ownership cap, the individual permits that comprise the overall allocation are still subject to the trap reduction. Therefore, an entity may have a reduction in overall traps through the reduced maximum trap cap of their individual permits, even if they would not be affected by the aggregate cap or reductions.

As this measure would allow entities who exceeded the ownership cap as of May 1, 2022, to retain their trap allocations, few negative economic impacts are expected to result solely from this ownership cap, though these entities would be prevented from expanding their businesses beyond their current allocations in the future. As discussed above, the implementation of the maximum trap caps may result in some traps being retired from these entities; however, they would be free to use the trap transfer program to either sell traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet.

Given that the annual 2016–2020 trap reductions are complete, as with Area 2, the individual permit cap or trap `banking' provisions of Addendum XXII (see ADDRESSES ) are no longer a necessary element of the Area 3 management plan. Further, because of other Area 3 measures that will limit the number of total traps an entity can own, a limit on the number of permits is no longer necessary.

This action does not place limits on the number of permits that an Area 3 entity may own. Entities would be free to own or purchase additional permits, provided that the total trap allocation across those permits does not exceed the ownership cap in any given year (and final ownership cap of 7,740 traps), and each individual vessel's trap allocation does not exceed the maximum trap cap in any given year (and final maximum trap cap of 1,548 traps). Entities with multiple Federal Area 3 permits would be free to determine how to divide their total trap allocation across multiple permits and would be free to adjust permit-specific trap allocations using the annual trap transfer program.

During the proposed rule comment period, we received several comments that our management partners and industry need additional time to understand these measures, consider them in the current context of the fishery, and provide adequate comment. While we are proceeding with implementation of these measures as proposed on May 1, 2025, we are accepting comment for an additional 60 days through this interim final rule. Upon consideration of additional comments, we will publish a subsequent rule if changes to these measures are determined to be necessary and appropriate. If we make no changes to these measures, we will ensure adequate and appropriate notification of such is provided to the fishing industry in advance of the May 1, 2025, effective date.

Mandatory Reporting

We are implementing mandatory electronic harvester reporting requirements for all Federal lobster permit holders and adding the collection of several additional data elements in the electronic form, within 48 hours following the completion of a trip, beginning April 1, 2024. The submission of electronic vessel trip reports (eVTR) is being required that align the reporting requirements for Federal lobster permit holders with the existing reporting requirements for all other fisheries permitted by Greater Atlantic Regional Fisheries Office (GARFO).

This rule also implements the collection of several additional data elements in the electronic form and includes some changes from the proposed rule. In addition to the existing reporting elements of the Federal eVTR, Addendum XXVI (see ADDRESSES ) recommended that we collect information on: Lobster Management Area fished; 10-minute square fished; number of traps hauled; trip length; and total number of buoy lines in the water. As states and NMFS moved to consider modifying databases to accommodate the collection of these elements, the Commission convened a Data Working Group during 2020 consisting of state and Federal partners, Atlantic Coastal Cooperative Statistics Program (ACCSP) staff, and the Commission's lobster policy staff. The Working Group provided guidance for how jurisdictions should collect these data, which resulted in a March 8, 2021, letter recommending the collection of additional data elements, including: Total number of traps hauled by chart area; total number of traps in the water in each chart area fished; average number of traps per string hauled in each chart area fished; total number of buoy lines in each chart area fished; and total number of buoy lines in the water.

While we proposed all new data elements, as recommended, we requested comment on the redundancy of several new data elements. First, we requested comment on the utility of several of these new data elements, as we are able to derive the lobster management area, 10-minute square fished, and trip length from fields that are already on the VTR. Ultimately, we are approving data elements that are new. All of these are: Total number of traps hauled by chart area, number of traps in chart area fished, average number of traps per string hauled in the chart area fished, number of buoy lines in the chart area fished, and total number of buoy lines in the water. To alleviate the reporting burden to industry, we are not implementing or requiring redundant fields (the lobster management area, 10-minute square fished, and trip length) in the Federal eVTR. However, to remain consistent with the data that states are providing to the ACCSP data warehouse from state-level reporting requirements, we intend to derive these data elements from data collected and provide derived data to the ACCSP data warehouse.

While other elements of this rule are set to become effective at the start of the 2025 fishing year, this rule implements mandatory harvester reporting requirements earlier, on April 1, 2024. We recognize that mandating the collection of this data as soon as possible is essential to improve the science and management of the lobster fishery, to understand the co-occurrence of the fishery with protected species, and to support our ability to determine impacts from other marine activities. Further, as discussed in greater detail in the comments and responses below, most comment letters supported proceeding with mandatory harvester requirements on an accelerated timeframe from the Area 2 and 3 requirements. Based on the need for the data and general support for this approach, Federal eVTRs will become required for all Federal American lobster permit holders beginning on April 1, 2024.

Benefits, Costs and Other Economic Impacts

Overall economic impacts, as summarized in the accompanying environmental assessment and presented in Table 2, are difficult to quantify but expected to be minimal.

Ownership caps in Areas 2 and 3 are expected to have minimal impacts, as these measures capture the Area 2 and 3 fisheries as they are prosecuted today in perpetuity. As entities that exceed these ownership caps will be capped at their aggregate level as of May 1, 2022, and will be prohibited from exceeding this level in the future, no entity will lose traps as a result of this measure, and thus will not incur an economic loss. These caps would restrict entities that are at or above the caps from continuing to build up their businesses. Positive impacts can be expected to the larger fishing community, as such an action supports National Standard 8 of the Magnuson-Stevens Fishery Conservation and Management Act, by providing sustained fishery participation at current levels for communities engaged in the Area 2 and 3 fisheries. In addition, implementation of Federal regulations that are mirrored at the state level would avoid administrative and regulatory disconnects that could have occurred if the states and the Federal government made disparate allocative decisions on a single entity. Such a situation would cause confusion for harvesters and enforcement, resulting in an ineffective management program, and avoidance of this situation creates a cost savings. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment.

As discussed in greater detail in Section 7.2.2.2 of the environmental assessment accompanying this action, Area 3 maximum trap cap reductions may, at most, result in approximately 10,000 traps being retired from 43 permit holders whose trap allocation exceeds the year 3 maximum trap cap of 1,548 traps. We estimated that, at most, a corresponding loss of $600,000 (in 2019 dollars) in collective lost trap value (based on the 2019 value of traps on the trap transfer market) and profit in the first year could be expected by these permit holders. However, these permit holders would be free to use the trap transfer program to either sell traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet. In addition, implementation of Federal regulations that are mirrored at the state level would avoid administrative and regulatory disconnects that could have occurred if the states and the Federal government made disparate allocative decisions on a single entity. Such a situation would cause confusion for harvesters and enforcement, resulting in an ineffective management program, and avoidance of this situation creates a cost savings. Further, any traps retired from the Area 3 fishery may reduce fishing pressure and aid in rebuilding on the SNE stock, leading to increased future catch by Area 3 permit holders. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment.

As discussed in greater detail below in Classification, mandatory electronic harvester reporting is expected to apply to all 2,291 Federal American lobster permits, 2,025 entities, and 1,683 small entities. It is also expected to have a minimal cost with associated benefits. Devices used to complete and submit reports (smartphones, tablets, etc.) are nearly universally used and reporting applications for these devices are available free of charge. Improved spatial resolution of fishery data would result in a better understanding of where fishing activity occurs, which would aid lobster management and assist with understanding the overlap between the fishery and protected species. It would also bring consistency with requirements for other permits, thus minimizing potential confusion about applicable requirements. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment. Further, half (approximately 1,500) of all Federal lobster permit holders (see section 6.1.5 of the environmental assessment) are presently required to report to NMFS due to holding permits in other fisheries with mandatory reporting requirements. The remainder of Federal lobster permit holders (approximately 1,400) must, at this time, report to their state. Therefore, this action transitions Federal permit holders who currently report to their state to reporting to NMFS.

Corrections

This rule also makes several regulatory corrections. We are removing regulations that are no longer necessary because they were time-limited and outdated or have been updated by this action, including:

• Area 1 participation requirements at § 697.4(a)(7)(vi);
• Outer Cape Area participation requirements at § 697.4(a)(7)(vii);
• Area 2 participation requirements at § 697.4(a)(7)(viii);
• Outdated lobster size restrictions at § 697.20(a)(5) and (6); and
• Outdated gear marking requirements at § 697.21(a)(1).

In addition, we are correcting several regulations, including:

• Updating the Greater Atlantic Regional Fisheries Office name and address in several locations;
• Correcting management area coordinates at § 697.18 and § 697.23; and
• Trap transferability requirements at § 697.27(a)(1)(vi), allowing traps to be transferred in any increment.

Comments and Responses

We published a proposed rule in the Federal Register on July 11, 2022 (87 FR 41084), soliciting public comment. The comment period ended on August 10, 2022. We received comments from 10 different groups: Atlantic States Marine Fisheries Commission; the Maine Department of Marine Resources; the Massachusetts Lobstermen's Association; the Atlantic Offshore Lobstermen's Association; three members of the fishing industry; two members of the public; and a group of environmental organizations. Only comments that were applicable to the proposed measures are addressed below.

General Comments

Comment 1: One member of the public supported the proposed rule, indicating that more regulation and data collection will increase sustainability. The commenter also cited the continued need for regulations to improve the condition of the critically endangered North Atlantic right whale.

Response: We agree that this action will improve management of the lobster fishery. The measures being implemented in Areas 2 and 3 are designed to respond to the poor condition of the Southern New England lobster stock. They are intended to reduce fishing exploitation and latent effort in the trap fishery by scaling the fishery to the smaller size of the Southern New England lobster stock. Data resulting from mandatory harvester reporting through eVTRs will be critical to future evaluation of lobster stock condition and utilization, and fishery effort. These fishery effort data will be an invaluable part of understanding the overlap between the lobster fishery and the occurrence of all protected species, including the North Atlantic right whale, as well as understanding impacts from other marine activities.

Area 2 and 3 Measures

Comment 2: The Atlantic States Marine Fisheries Commission, the Atlantic Offshore Lobstermen's Association, and two individuals requested that we extend the comment period on the Area 2 and 3 measures, to allow industry, industry representatives, and management partners additional time to understand the proposed measures. The Commission, Association, and one individual noted that nearly 10 years have passed since the Commission finalized these measures, during which additional consolidation and other management measures ( e.g., implementation of the Interstate Fishery Management Plan for Jonah crab and measures to protect North Atlantic right whales) have resulted in fundamental fishery changes. The Commission and Association also noted several points of confusion and requested clarification. One individual also suggested that any proposed trap cap, trap reduction, and ownership cap measures that were proposed for implementation in 2023 be delayed until 2024, giving industry time to optimize their trap allocations using the trap transfer program during the 2023 application period.

Response: We agree that additional time for the industry and our management partners to understand the Area 2 and 3 measures is warranted. Through this interim final rule, we will solicit additional public comment for 60 days to provide more time for industry and our management partners to comment further upon these measures. As a result, we are also delaying implementation of the Area 2 and 3 ownership caps and Area 3 maximum trap cap reductions until 2025. Upon consideration of additional comments, we will publish a subsequent rule if changes to these measures are determined to be necessary and appropriate. We appreciate the feedback on areas of confusion in the proposed rule, and have provided clarifications in the preamble of this interim final rule.

Comment 3: A group of conservation organizations, including the Conservation Law Foundation, Center for Biological Diversity, Defenders of Wildlife, and Whale and Dolphin Conservation, commented in support of the Area 2 and 3 measures as proposed, as a means to reduce vertical lines used by the fishery. The organizations acknowledged that we may receive requests to take additional comments, and requested we use the additional time to ensure that unfished traps are not activated, resulting in additional vertical lines being deployed by the fishery.

Response: Although we believe that the rule will have ancillary benefits to marine mammals, the purpose of this action is to improve the sustainable management of lobster and complement the Commission's Interstate Fishery Management Plan for American Lobster to ensure compatibility between state and federal regulations. As such, the comments are beyond the scope of this rulemaking. We note, however, that NMFS, in other actions, has and/or is in the process of implementing regulatory measures to protect marine mammals (see, e.g., the Atlantic Large Whale Take Reduction Plan Phase 1 action, 86 FR 51970, September 17, 2021; Proposed Vessel Speed Rule, 87 FR 46921, August 1, 2022; and Notice of Intent to Prepare Environmental Impact Statement for Phase 2 and 3 actions, 87 FR 55405, September 9, 2022). All of these actions, including the present action, will reduce mortalities and serious injuries from Northeast lobster/Jonah crab pots and traps to North Atlantic right whales.

Comment 4: The Massachusetts Lobstermen's Association supported an ownership cap of 800 traps to promote support of an owner/operator fishery. The Association opposed any additional trap cuts, or regulating the number of permits that could be owned, as owning additional permits has been used to weather past trap cuts by effectively `banking' traps. The Association further requested that the 10-percent conservation tax associated with the trap transfer program be rescinded, as the Area 2 fishery has already reduced the number of traps permitted in the area by approximately 50 percent.

Response: We agree, and are approving the Area 2 ownership cap of 800 traps per entity for most Area 2 entities. While we are allowing any entity that exceeded the 800-trap limit as of May 1, 2022, to retain their trap allocations, these entities are prohibited from owning any additional traps beginning on May 1, 2025. We agree that this measure, along with prohibiting all entities under the 800-trap limit to not exceed an allocation of 800 traps in the future will work to preserve the owner/operator nature of the Area 2 fishery.

This action did not propose, and does not include, any restrictions on the number of permits that can be owned. When considering the Commission's recommendation and developing these measures, we reviewed Area 2 permit data and were aware that some entities owned multiple permits, often transferring the trap allocation from a secondary permit to mitigate the 2016–2021 traps cuts and retain a full allocation of 800 traps. Thus, this action only regulates the number of traps that can be owned per entity. Entities can determine how best to split traps across their permits to maximize their business operations. Further, these Area 2 measures will not result in NMFS assessing any additional trap reductions on Area 2 entities. Due to the 2016–2021 trap reductions, the vast majority of Area 2 entities hold 800 traps or fewer and, thus, are at or under the limits approved in this action. The Commission recommended that we allow entities that exceeded the 800-trap limit to maintain their trap allocations, but prevent these entities from ownership in additional traps. Thus, this action allows any entity that exceeded the 800-trap limit as of May 1, 2022, to retain their trap allocation as of May 1, 2022, but prevents these entities from owning additional traps. Together, these measures codify the Area 2 fishery, as it exists in 2022, and will not make any further changes or reduce Area 2 allocations.

Finally, a change such as the removal of the trap transfer conservation tax, without concurrent implementation by the states, would create a misalignment in our trap transfer programs and would result in inconsistent individual vessel trap allocations. As we have stated in past actions, particularly our Final Rule (79 FR 19026, April 7, 2014) implementing our Trap Transfer Program, incongruent state and federal management has the potential to undermine effective lobster management. Thus, this action includes no changes to the trap transfer conservation tax.

Comment 5: One commenter opposed the Area 3 maximum trap cap reductions, and instead, suggested using enhanced enforcement of V-Notch requirements, or possibly implementation of Zero Tolerance V-Notch to achieve management and conservation objectives. The commenter stated:

1. The measures were developed following the 2009 stock assessment, and are no longer based on the best available science;

2. The Area 3 fishery has already undergone a near 25-percent trap reduction;

3. The proposed measures, coupled with regulations to protect the North Atlantic right whale requiring longer trap trawls, will create inefficiencies for industry, including their ability to locate lobster, and will increase the fishery's carbon footprint; and

4. These measures run counter to National Standards 5 and 7.

Response: We disagree. First, while the commenter is correct that these measures were developed in response to the 2009 American lobster stock assessment, they are still based on the full suite of best available scientific information. Subsequent 2015 and 2020 stock assessments have yielded similar results to the 2009 assessment, indicating that the stock remains in recruitment failure and at record low levels of abundance. Despite these measures being developed in 2013 following the 2009 assessment; the Commission, including numerous members of the lobster fishery, recently affirmed their support of the measures to appropriately scale the fishery to the Southern New England lobster stock. Further, the data used in developing the environmental assessment and supporting analyses drew on more recent data on lobsters and other managed species, habitat, protected species, and economics of the fishery, including the most recent permit data available. Thus, this action is consistent with National Standard 2 in using the best scientific information available, including the information used to develop these measures and information used in the impacts analyses and environmental assessment.

The commenter is correct that we implemented a 5-year, 5-percent trap reduction, assessed at the permit level, from 2016 to 2020, complementing measures in Addendum XVIII. The Lobster Board developed Addendum XXI shortly after the approval of Addendum XVIII and intended for concurrent implementation, such that Area 3 allocations and the maximum trap cap would be reduced in tandem. Ultimately, Federal implementation of these measures did not proceed as originally conceived. As discussed in greater detail in the response to Comment 6, our outreach materials for the annual trap transfer program notified industry that future regulations may impact trap allocations, and to proceed at their own risk. Any permit holders who chose to rebuild their allocations made short-term business decisions, and were advised of the risks. Thus, these permit holders may have experienced unexpected benefits, but this does not change our obligation under the Atlantic Coastal Fisheries Cooperative Management Act to complement the measures recommended by the Commission.

We recognize that the management landscape has changed in the 10 years since the Commission approved Addendum XXI, including several NMFS actions to promote the recovery of North Atlantic right whales. As discussed in the above comment response, we are delaying implementation of the Area 2 and 3 measures approved in this interim final rule and accepting additional comment on these measures. This will give industry, partner states, and the Commission additional time to understand and formulate comments and recommendations on these measures, in light of recent changes to the fishery.

We disagree that the proposed measures do not comply with National Standards 5 and 7. The proposed measures were developed by the Commission with a goal of scaling the fishery to the smaller size of the Southern New England lobster stock in light of the most recent stock assessment information. Ownership caps and the maximum trap cap reductions, in conjunction with the existing trap transfer program, promote efficiency by allowing participants to regulate their trap allocation or even exit the fishery based on their situation and the economics within the Area-specific fishery. Thus, we are promoting efficiencies in the Area 3 fishery, consistent with National Standard 5, while meeting necessary conservation objectives for the Southern New England lobster stock. In addition, these measures are intended to ensure state and Federal regulations are compatible, minimize confusion by industry participants, enhance compliance, and avoid duplication. The Commission has mandated that the states implement these measures and has similarly requested that NMFS do the same. Compatible measures and coordinated management of the ownership caps also reduces administrative costs to agencies and industry participants, clarify and standardize application procedures, and more effectively quantifies trap fishing effort in the future. Thus, we are minimizing costs and avoiding unnecessary duplication. Failure to complement these recommended measures and unilaterally implement alternative measures would be inappropriate and not consistent with our authority under section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101 et seq.).

Comment 6: One commenter argued against the proposed Area 3 maximum trap cap reductions, stating that the larger problem is gear fished in excess of the current 1,945-trap limit. The letter indicated that 1,548 traps would not be sufficient for permit holders to make a living and plan for the future.

Response: In general, fishery regulations exist to ensure sustainable fish populations and protect endangered species and habitat, and to ensure that resources are available for future generations to enjoy. We agree with the commenter that illegal fishing and willful violation of fishery management regulations threaten the sustainability of fisheries and put those who comply with the rules at a disadvantage. NOAA's Office of Law Enforcement, as well as the enforcement offices of our state partners, work to ensure compliance with these various regulations. NMFS recently acquired a remotely operated vehicle (ROV) to aid in enforcement efforts for the lobster fishery. This ROV better enables enforcement to ensure compliance with trap limits and tagging requirements, as well as measures to ensure the conservation of protected species.

The Area 3 trap measures are intended to scale the fishery in light of the Southern New England lobster stock population. Our analysis indicated that approximately 40 Area 3 permit holders would be affected by the proposed maximum trap cap reductions, with a potential to affect approximately 9,000 traps. We acknowledge that this could result in some negative socio-economic impacts to these permit holders. However, these negative impacts may be mitigated by participating in the annual trap transfer program. At worst, a permit holder could recoup some of their potential losses. At best, permit holders with multiple vessels/permits would have the opportunity to reconfigure their trap allocations across their fleet.

As summarized in other response to comments and in the preamble of this rule, we acknowledge that these measures were recommended by the Commission 10 years ago, and much about the fishery and fishery management landscape has changed in the intervening years. Nevertheless, the Commission, which includes members of industry, supported this rulemaking and the proposed measures, but requested more time to consider the Area 2 and 3 measures in the current context of the fishery. As a result of public comments received, we are approving these measures and delaying implementation for 1 year to accept additional public comment and give industry time to better understand these measures and provide more input.

Comment 7: One commenter inquired what would happen to traps purchased in recent years through the annual trap transfer program. The commenter questioned our perceived incentivizing of business growth through the trap transfer program, only to later take away traps purchased.

Response: As discussed in the above comment response, our analysis indicates that approximately 40 permit holders would lose a total of 9,000 traps with the implementation of the maximum trap cap reductions. Some of these traps were likely acquired through the trap transfer program. Regardless of their origin, traps over the proposed 3-year maximum trap cap reduction schedule will be retired, unless permit holders engage in the trap transfer program to either sell traps or realign their trap allocations across multiple permits.

Since the inception of the trap transfer program, our outreach materials and trap transfer application notified permit holders to proceed with caution when participating in the program. Since we began rulemaking on these addenda in the late 2010s, we have specifically stated in these materials that we were undertaking rulemaking that could affect future trap allocations, and to proceed with transfers at their own risk. Thus, industry has been frequently cautioned about the implications of their individual business decisions. We also note, as we stated in the response to Comment 6, that the lobster management under the Commission is a bottoms-up approach where regulations are recommended to the states and Federal Government by the Commission, which is an entity comprised of a multitude of stakeholders, including members of the fishing industry. The Commission recommended this measure and supported it in its recent commentary.

Comment 8: One commenter supported only permitting subsistence fishing as a way to support the recovery of the Southern New England lobster stock.

Response: We work in partnership with regional fishery management councils and commissions to manage our nation's Federal fisheries. Through this process, we have implemented subsistence, tribal, and non-commercial fishing opportunities throughout the nation. More information on these opportunities can be found at: https://www.fisheries.noaa.gov/topic/resources-fishing/subsistence-fishing.

Subsistence fishing is not within the purpose and need of this action and has not, to date, been incorporated into the Commission's Interstate Fishery Management Plan for American Lobster. Thus, it would be inappropriate for us to implement such a measure as it would be a radical departure from the Lobster Plan and create incompatible state and federal regulations. The ownership and trap cap measures approved in this rule were developed to scale the fishery to the Southern New England lobster stock, and are expected to sufficiently meet this conservation objective, while still providing permit holders flexibility and ways to mitigate these reductions. Eliminating all fishing for this stock, with the exception of subsistence fishing, would not be consistent with the goals and objectives of the Fishery Management Plan.

Harvester Reporting

Comment 9: The Atlantic State Marine Fisheries Commission, Maine Department of Marine Resources, the Atlantic Offshore Lobstermen's Association, and a group of conservation organizations, including the Conservation Law Foundation, Center for Biological Diversity, Defenders of Wildlife, and Whale and Dolphin Conservation, supported the proposed harvester reporting measures with a January 1, 2023, implementation date. The Commission, Department, and Association supported the derivation of redundant data. While the Department and Association noted potential data limitations associated with the reporting of a single point for reported fishing location on the Federal eVTR, they indicated that a future `vessel tracking' program may fill this gap. The Department and Commission noted that a successful transition to reporting must include a comprehensive outreach plan to inform permit holders of these new requirements. The conservation organizations supported the collection of additional fishing location and depth information.

Response: We appreciate the support for Federal eVTRs, including minimizing reporting redundancy. We agree that additional reporting requirements approved and recommended by the Commission for state and Federal implementation ( i.e., the vessel tracking program) will allow for a finer-scale understanding of effort in the lobster fishery, including location and depth information. The Commission's vessel tracking recommendation will be considered in a subsequent rulemaking.

With regard to the implementation date, we understand the urgent need to begin collecting these data as quickly as possible. However, we must balance that need against the industry's ability to comply with new requirements. Thus, we intend to implement this requirement on April 1, 2024, which will provide industry with the opportunity to understand the requirements and options, receive any necessary training, obtain any technology, acquire a free reporting application, and begin to report.

Comment 9: The Massachusetts Lobstermen's Association opposed the proposed mandatory harvester reporting requirements using the Federal eVTR, noting the recent burden on industry in complying with recent regulations aimed at protecting the critically endangered North Atlantic right whale.

Response: As discussed in section 7.2.3.2 of the environmental assessment, we understand the regulatory burden on the lobster industry to comply with a host of new regulations; however, we disagree that this will place a significant new burden on the industry. Data presented in our environmental assessment indicated that of the approximate 900 Federal lobster permit holders who reside in Massachusetts, over 500 permit holders are already required to submit Federal trip reports because they hold Federal permits for other species. Over 200 of these 900 permits are in confirmation of permit history and would not be required to submit reports due to their permit status. The remaining approximately 150 permits would be newly required to submit Federal eVTRs; however, as the Commonwealth has required harvester reporting for its state lobster permit holders for many years, we view this as a transition of reporting and not a wholly new requirement. Further, as discussed in the environmental assessment, because electronic reporting applications are free and run on electronic devices that are ubiquitous, minimal out-of-pocket costs are expected to result from this requirement.

In addition, we intend to give industry sufficient time to comply with this harvester reporting requirement. We intend to implement this requirement on April 1, 2024, which will provide industry with the opportunity to understand the requirements and options, receive any necessary training, obtain any technology, acquire a free reporting application, and begin to report.

Changes From the Proposed Rule

We are implementing the mandatory harvester reporting requirements, Area 2 cap measures, and corrections as proposed. Based on comments requesting additional time to consider the Area 2 and 3 proposed measures, we are approving the Area 3 measures largely as proposed, but with a 1-year delay. Upon consideration of additional comments, we will publish a subsequent rule if changes to these measures are determined to be necessary and appropriate. If we make no changes to these measures, we will ensure adequate and appropriate notification of such is provided to the fishing industry in advance of the May 1, 2025, effective date.

Classification

The NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Coastal Fisheries Cooperative Management Act, applicable provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

This final rule has been determined to be significant for purposes of Executive Order 12866.

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ).

A Statement of the Need for, and Objectives, of the Rule

This is provided in the preamble to this rule and the proposed rule (87 FR 41084, July 11, 2022) and not repeated here.

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 received pertaining directly to the economic effects of this rule. Comments 2, 5 and 6 (see Comments and Responses) raised the need for additional time to understand the economic impacts of this action, citing that the impacts of this action plus recent actions regulating the lobster fishery will change the economics of the fishery. No specific data or dollar value estimates were provided. Responses to the comments are provided above.

The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments.

NMFS received no comments on the proposed rule for this action from the Chief Counsel for Advocacy of the Small Business Administration; therefore, no changes were made in this final rule as a result.

Description and Estimate of the Number of Small Entities to Which the Rule Would Apply

As of June 1, 2021, NMFS had issued 2,291 Federal American lobster permits that are potentially regulated by this action. The Area 2-preferred alternative would apply to 131 Federal permits, and the Area 3-preferred alternatives would apply to 82 Federal permits. The reporting requirements preferred alternative would apply to all 2,291 Federal American lobster permits, though many of these permit holders are already subject to electronic trip reporting based on other species permits they hold that require eVTRs.

Each vessel may be individually owned or part of a larger corporate ownership structure and, for RFA purposes, it is the ownership entity that is ultimately regulated by this action. Ownership entities are identified on June 1st of each year based on the list of all permit numbers, for the most recent complete calendar year, that have applied for any type of Greater Atlantic Region Federal fishing permit. The current ownership data set is based on calendar year 2020 permits and contains gross sales associated with those permits for calendar years 2018 through 2020.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The Small Business Administration (SBA) has established size standards for all other major industry sectors in the U.S., including for-hire fishing (NAICS code 487210). These entities are classified as small businesses if combined annual receipts are not in excess of $8.0 million for all its affiliated operations. Similar to permit data, the annual average of the three most recent years (2018–2020) is used in determining annual receipts for fishing and for-hire businesses.

Ownership data collected from permit holders indicates that there are 2,025 distinct business entities that hold at least one Federal permit regulated by this action. All 2,025 business entities identified could be directly regulated by this action. Of these 2,025 entities, 1,685 are commercial fishing entities, 6 are for-hire entities, and 334 did not have revenues ( i.e., were inactive in 2020). Of the 1,685 commercial fishing entities, 1,677 are categorized as small entities and 8 are categorized as large entities, per the NMFS guidelines. All six for-hire entities are categorized as small businesses. A summary of these entity designations is provided in Table 4.

The Area 2 cap of 800 traps is at, or higher than, most entities' trap allocations, and all entities with trap allocations in excess of the preferred cap will be able to retain their current allocation as of May 1, 2022. Thus, no costs are expected. The Area 3 ownership caps are similarly set higher than most entities' allocations, and all entities in excess of the preferred cap will be able to retain their current allocation. The maximum trap cap reduction may result in the loss of some traps, reducing fishing revenues and profits for fishing businesses. The loss in fishing profit from retired traps is estimated to be between $307,000 and $419,000, assuming a profit margin of 5 percent. For harvester reporting, the GARFO-supported application for eVTRs is free of charge, and most individuals in the fishery own a device which can be used to submit eVTRs. Wage hours are summarized below. We requested comments in the proposed rule on economic impacts of the reporting requirements approved in this rule, including assumptions that impacts are discountable due to the prevalence of smartphones and tablets in society and the fact that reporting applications are free, and that entities are able to cover fixed costs on diminished revenues. No comments were received on the proposed approach.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This action contains new reporting and recordkeeping requirements for Federal American lobster permit holders that would involve costs to vessels to catch lobsters. Vessels would be required to complete a Federal vessel trip report at sea and submit the report electronically to GARFO within 48 hours of returning to port. Costs in terms of burden is estimated to be 7 minutes per report, or 10,065 burden hours total. With a mean hourly wage of $14.49 dollars, total wage burden costs are $155,586 (in 2019 dollars).

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

This action imposes minimal impacts on small entities. Given the current state of the Area management programs, the implemented measures remain consistent with the Commission's recommendations, but do not consider outdated management measures ( i.e., trap banking). Further, both the Area 2 and Area 3 ownership caps allow for entities who exceed the specified ownership cap limits to retain their permits and traps, but prevent these entities from ownership in additional permits and traps. For Area 3, we are also approving a reduction to the maximum number of traps that can be fished. Area 3 permit holders may participate in the Trap Transfer Program ahead of reductions going into place, and thus could either optimize trap allocations across vessels owned or sell traps and recoup some economic losses. Finally, approving mandatory harvester requirements using eVTR would leverage technology to minimize the burden of completing and submitting/mailing paper Federal vessel trip reports.

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, a letter to permit holders that also serves as this small entity compliance guide was prepared. Copies of the guide and this rule are available upon request from the Greater Atlantic Regional Office (see ADDRESSES ), and the guide/permit holder bulletin will be sent to all holders of lobster permits.

This final rule contains a new collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). The collection-of-information requirement in this rule, currently assigned Control Number 0648–0806, relates to the collection under Control Number 0648–0212, “Greater Atlantic Region Logbook Family of Forms” as both collect similar types of information. However, due to multiple concurrent actions revising Control Number 0648–0212, the collection-of-information requirement in this final rule was assigned a temporary Control Number that will later be merged into Control Number 0648–0212. This rule creates new requirements by requiring all Federal lobster permit holders to submit electronic vessel trip reports, including several additional new data elements. Public reporting burden for electronic trip reports is estimated to average 7 minutes (0.117 hours) per individual response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Total annual cost to the public from this collection is estimated to be approximately $156,000 (in 2019 dollars).

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review” or by using the search function and entering the title of the collection.

Notwithstanding any other provision of the 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 PRA, unless that collection of information displays a currently valid OMB Control Number

List of Subjects in 50 CFR Part 697

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

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. 1501 et seq.

2. In § 697.2, remove the definition for “Qualifying Year” and revise the definition for “Regional Administrator” to read as follows:

3. In § 697.4,

a. Revise paragraph (a)(1) introductory text, and paragraphs (a)(7)(i) and (ii);

b. Remove and reserve paragraphs (a)(7)(vi) through (viii);

c. Revise paragraph (d)(1);

d. Revise paragraph (f)(1)(i);

e. Remove paragraph (f)(1)(v); and

f. Effective April 1, 2024, add paragraph (q).

The revisions and addition read as follows:

4. Effective April 1, 2024, in § 697.6, revise paragraph (n)(1)(ii)(B) to read as follows:

5. Revise § 697.18 to read as follows:

6. Effective May 1, 2025, in § 697.19, revise the section heading and paragraph (c), and add paragraph (m), to read as follows:

7. In § 697.20, revise paragraphs (a)(5) through (7), and remove paragraphs (a)(8) and (9), to read as follows:

8. In § 697.21;

a. Revise paragraphs (a)(1);

b. Remove and reserve paragraph (a)(2);

c. Revise paragraphs (b)(4)(i) through (iii), (c)(3) and (4);

d. Remove paragraph (c)(5); and

e. Revise paragraphs (e) and (f).

The revisions are to read as follows:

9. In § 697.23, revise paragraphs (b)(2), (c)(2), (d)(2), and (e)(2) to read as follows:

10. Revise § 697.24 to read as follows:

11. In § 697.27, revise paragraph (a)(2)(vi) to read as follows: