Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, 19015-19027 [2014-07734]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 66 (Monday, April 7, 2014)]
[Rules and Regulations]
[Pages 19015-19027]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07734]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 080219213-4259-02]
RIN 0648-AT31


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: With this final rule, NMFS implements new Federal American 
lobster regulations that will control lobster trap fishing effort by 
limiting access into the lobster trap fishery in two Lobster 
Conservation Management Areas. Additionally, this action will implement 
an individual transferable trap program in three Lobster Conservation 
Management Areas. The trap transfer program will allow Federal lobster 
permit holders to buy and sell all or part of a permit's trap 
allocation, subject to certain restrictions. The limited entry and trap 
transfer programs respond to recommendations for Federal action in the 
Atlantic States Marine Fisheries Commission's Interstate Fishery 
Management Plan for American Lobster.

DATES: Effective May 7, 2014.
    Applicability Dates: Applications for Area 2 and the Outer Cape 
Area lobster trap fishery eligibility are due November 3, 2014. 
Eligibility decisions will become effective no earlier than the start 
of the 2015 Federal lobster fishing year, which begins May 1, 2015. 
NMFS will file a separate notice indicating when the Trap Transfer 
Program will begin. Implementation of the Trap Transfer Program at 
Sec.  697.27 is contingent upon the completion of a database currently 
under development by the Atlantic States Marine Fisheries Commission. 
Once the database is complete, NMFS will notify the public and inform 
Federal lobster permit holders how to enroll into the program. Although 
the timing may allow permit holders to buy and sell transferable traps 
during the 2014 calendar year, those transfers will become effective no 
earlier than the start of the 2015 Federal lobster fishing year, which 
begins May 1, 2015.

ADDRESSES: Copies of the American Lobster Final Environmental Impact 
Statement (FEIS), including the Regulatory Impact Review (RIR) and the 
Final Regulatory Flexibility Analysis (FRFA) prepared for this 
regulatory action, are available upon written request to Peter Burns, 
Fishery Policy Analyst, Sustainable Fisheries Division, NMFS, 55 Great 
Republic Drive, Gloucester, MA 01930, telephone (978) 281-9144. The 
documents are also available online at https://www.nero.noaa.gov/sfd/lobster.
    You may submit written comments regarding the burden-hour estimates 
or other aspects of the collection-of-information requirements 
contained in this final rule to the mailing address listed above and by 
email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Policy Analyst, 
phone (978) 281-9144.

SUPPLEMENTARY INFORMATION: 

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 (Atlantic Coastal Act) 16 U.S.C. 5101 et seq., which states that, 
in the absence of an approved and implemented Fishery Management Plan 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens 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, i.e., 
from 3 to 200 nautical miles (nm) offshore. The regulations must be (1) 
compatible with the effective implementation of an Interstate Fishery 
Management Plan (ISFMP) developed by the Atlantic States Marine 
Fisheries Commission (Commission), and (2) consistent with the national 
standards

[[Page 19016]]

in section 301 of the Magnuson-Stevens Act.

Background

    The American lobster resource and fishery is managed by the states 
and Federal Government within the framework of the Commission. The role 
of the Commission is to facilitate cooperative management of 
interjurisdictional fish stocks, such as American lobster. The 
Commission does this by creating an ISFMP for each managed species or 
species complex. These plans set forth the management strategy for the 
fishery and are based upon the best available information from the 
scientists, managers, and industry. The plans are created and adopted 
at the Commission Management Board level--e.g., the Commission's 
Lobster Board created the Commission's Lobster Plan--and provide 
recommendations to the states and Federal Government that, in theory, 
allow all jurisdictions to independently respond to fishery conditions 
in a unified, coordinated way. NMFS is not a member of the Commission, 
although it is a voting member of the Commission's species management 
boards. The Atlantic Coastal Act, however, requires the Federal 
Government to support the Commission's management efforts. In the 
lobster fishery, NMFS has historically satisfied this legal mandate by 
following the Commission's Lobster Board recommendations to the extent 
possible and appropriate.
    The Commission has recommended that trap fishery access be limited 
in all Lobster Conservation Management Areas (Areas). The 
recommendations are based in large part on Commission stock assessments 
that find high lobster fishing effort as a potential threat to the 
lobster stocks. Each time the Commission limits access to an area, it 
recommends that NMFS similarly restrict access to the Federal portion 
of the area. NMFS received its first limited access recommendation in 
August 1999, when the Commission limited access to Areas 3, 4, and 5 in 
Addendum I. NMFS received its most recent limited access recommendation 
in November 2009, when the Commission limited access to Area 1 in 
Addendum XV. NMFS has already completed rules that limit access to 
Areas 1, 3, 4, and 5. This final rule responds to the Commission's 
limited access recommendations for Area 2 and the Outer Cape Area. It 
also responds to the Commission's recommendation to implement a Trap 
Transfer Program in Areas 2, 3, and the Outer Cape Area. The specific 
Commission recommendations, and NMFS' response to those 
recommendations, are the subject of this final rule.
    NMFS published a proposed rule for this action on June 12, 2013 (78 
FR 35217). We received public comments from seven different entities in 
response to the proposed rule, and all the comments, generally, 
supported the measures in the proposed rule. In addition to the 
comments submitted in response to the proposed rule, two entities 
submitted comments in response to another Federal lobster action 
outside of the proposed rule comment period, but because some of those 
comments are relevant to trap transferability and other measures under 
consideration in this action, NMFS has considered them in the 
preparation of this final rule. Overall, NMFS received 17 comments 
submitted by 8 different commenters. All comments and responses are set 
forth later in this final rule (see Comments and Responses).
    This final rule implements the following measures.

1. Outer Cape Area Limited Access Program

    NMFS will limit access into the Outer Cape Area in a manner 
consistent with the Commission's recommendations. NMFS will qualify 
individuals for access into the Outer Cape Area based upon verifiable 
landings of lobster caught by traps from the Outer Cape Area in any one 
year from 1999-2001.
    NMFS will also allocate Outer Cape Area traps according to a 
Commission regression analysis formula that calculates effective trap 
fishing effort based upon verifiable landings of lobster caught by 
traps from the Outer Cape Area in any one year from 2000-2002. The use 
of the regression formula removes the possibility that someone will 
benefit from simply reporting more traps than were actually fished.
    NMFS will accept two types of appeals to its Outer Cape Area 
Limited Access Program. The first appeal is a Clerical Appeal. The 
second is a Director's Appeal.
    The Clerical Appeal will allow NMFS to correct clerical and 
mathematical errors that sometimes inadvertently occur when 
applications are processed. It is not an appeal on the merits, and will 
involve no analysis of the decision maker's judgment. Accordingly, the 
appeal will not involve excessive agency resources to process. Requests 
for Clerical Appeals must be made by the applicant directly to NMFS.
    The Director's Appeal will allow states to petition NMFS for 
comparable trap allocations on behalf of Outer Cape Area applicants 
denied by NMFS. The appeal will only be available to Outer Cape Area 
applicants for whom a state has already granted access. The state will 
be required to explain how NMFS' approval of the appeal would advance 
the interests of the Commission's Lobster Plan. The rationale for this 
appeal is grounded in the desire to remedy regulatory disconnects. NMFS 
knows that states have already made multiple separate decisions on 
qualification, allocation, and at least in some instances, trap 
transfers for the state portion of dually permitted fishers. The 
Director's Appeal will help prevent the potential damage that such a 
mismatch between state and Federal data could create. Requests for 
Director's Appeals must be made by the director of a state fishery 
management agency to NMFS. Requests for Director's Appeals will not be 
accepted directly from applicants.
    The final rule also adopts the Commission's 2-month winter trap 
haul-out recommendation. The 2-month closure will take place January 15 
through March 15. The 2-month closure will require the removal of all 
traps from Outer Cape Area waters from January 15 through March 15. The 
2-month closure date aligns with Massachusetts' 2-month closure dates.

2. Area 2 Limited Access Program

    NMFS will limit access into Area 2 in a manner consistent with the 
Commission's recommendations. NMFS will qualify individuals for access 
into Area 2 based upon verifiable landings of lobster caught by traps 
from Area 2 from 2001-2003. NMFS will also allocate traps according to 
a Commission formula that calculates effective trap fishing effort 
based upon landings during 2001, 2002, and 2003.
    NMFS will also restrict allowable landings to those from ports in 
states that are either in or adjacent to Area 2, i.e., Massachusetts, 
Rhode Island, Connecticut, and New York. The Commission, in Addendum 
VII, found that the location of Area 2 prevented fishers from far away 
ports from actively fishing in Area 2. NMFS agrees with the 
Commission's conclusion.
    For the Area 2 Limited Access Program only, NMFS will also adopt 
the Commission's recommended Hardship Appeal. Specifically, if an Area 
2 fisher had been incapable of fishing during the 2001-2003 fishing 
years due to documented medical issues or military service, NMFS will 
allow that individual to appeal the qualification decision on hardship 
grounds, allowing the individual to use landings from 1999 and 2000 as 
the basis for qualification. NMFS will also allow a

[[Page 19017]]

Director's Appeal and a Clerical Appeal, as described above.

3. Timeline for Outer Cape and Area 2 Limited Access Program

    Federal lobster permit holders may submit applications for Area 2 
and Outer Cape Area eligibility during a 6-month period beginning May 
7, 2014, and ending November 3, 2014. NMFS will review the applications 
and notify applicants of their eligibility and trap allocations during 
the 2014 Federal fishing year, and those decisions will take effect at 
the start of the 2015 Federal fishing year, on May 1, 2015. All Federal 
lobster permit holders may elect Area 2 and/or the Outer Cape Area on 
their 2014 Federal lobster permit and fish with traps in these areas 
during the 2014 Federal fishing year, which begins May 1, 2014, and 
ends April 30, 2015. However, starting May 1, 2015, only those with 
qualified permits may designate and fish in Area 2 and/or the Outer 
Cape Area.
    This final rule requires that all qualification applications for 
the Area 2 and Outer Cape Area limited access program must be submitted 
by November 3, 2014. Late applications will not be considered.

4. Individual Transferable Trap Program (ITT, Trap Transfer Program)

    NMFS will implement an optional Trap Transfer Program for Areas 2, 
3, and the Outer Cape Area in a manner consistent with the Commission's 
recommendations. The Program will allow qualified permit holders to 
sell portions of their trap allocation to other Federal lobster permit 
holders. Buyers can purchase traps up to the area's trap cap, with 10 
percent of the transferred allocation debited and retired from the 
fishery as a conservation tax. The Trap Transfer Program affords buyers 
and sellers the flexibility opportunity to scale their businesses to 
optimum efficiency.
    Under the Trap Transfer Program, NMFS will allow a dual state and 
Federal permit holder to purchase Federal trap allocation from any 
other dual Federal lobster permit holder. NMFS will require that the 
transferring parties' state/Federal allocation be synchronized at the 
end of the transaction. A dual permit holder can purchase a Federal 
allocation from an individual in another state, as well as an equal 
state-only allocation from a third individual in his or her own state 
for the purpose of matching the purchaser's state and Federal trap 
allocations. Any participants holding both state and Federal lobster 
permits (``dual permit holders'') with different trap allocations must 
agree to abide by the lower of the two trap allocations to take part in 
the program. In this way, permit holders will not be obliged to forfeit 
their higher trap allocation, but they will not be able to participate 
in the Trap Transfer Program if they choose to retain it. This will 
synchronize the dual permit holder's allocations at the initial opt-in 
time, thus greatly facilitating the tracking of the transferred traps. 
As trap allocations are transferred, a centralized Trap Transfer 
Database accessible by all jurisdictions will keep track of trap 
transfers, thus ensuring that all jurisdictions are operating with the 
same numbers at the beginning and end of every trap transfer period. 
The centralized Trap Transfer Database is created by the Atlantic 
Coastal Cooperative Statistics Program (ACCSP) and is a critical, 
foundational prerequisite to the Trap Transfer Program.
    The timeline to submit an application for the Trap Transfer Program 
for its first year will be announced in a separate Federal Register 
notice once NMFS is assured that the Commission's Trap Tag Database is 
fully functional.

Comments and Responses

    NMFS received 17 comments relevant to this action. During the 
proposed rule comment period from June 12, 2013, through July 29, 2013, 
NMFS received multiple comments from seven persons or entities, which 
are broken down as follows: One from a Massachusetts lobster fisher; 
one from a Rhode Island lobster fisher; one from a New Jersey lobster 
fisher; one from the Rhode Island Lobstermen's Association; one from 
the Atlantic Offshore Lobstermen's Association; one from the Maine 
Lobstermen's Association; and one from the Atlantic States Marine 
Fisheries Commission. All seven of these commenters supported the 
proposed rule. In addition to the comments received in direct response 
to the proposed rule, NMFS received a second comment letter from the 
Commission and a comment from a Board member who is the Director of the 
Connecticut Department of Environmental Protection. Both submissions 
were sent in response to a separate NMFS lobster action and received 
after the proposed rule comment period had closed. However, because the 
proposed rule comment period did not coincide with any of the 
Commission's regularly scheduled Lobster Management Board meetings, the 
Board was not able to meet as a group and discuss the proposed rule 
until after the comment period ended. With respect to this timing, and 
given the relevance of these comments to the final rule measures, the 
comments were considered in the development of this action, and NMFS' 
responses are provided in this section. The specific comments and 
responses are as follows.
    Comment 1: Two industry associations, the Commission, and one 
individual lobster fisher commented in support of a 10-percent 
allocation tax on full business transfers. A full business transfer 
refers to the transfer of a Federal lobster fishing permit and all of 
its trap allocation to another vessel. The Commission suggested that 
the transfer tax on full business transfers could result in fewer 
vertical lines in the water, which could benefit right whales, as well 
as assist in the rebuilding of the Southern New England (SNE) lobster 
stock.
    Response: NMFS will not require a 10-percent trap allocation 
reduction on full business transfers at this time. The Commission's 
Lobster Plan is presently not designed to accommodate such a measure. 
The measure presupposes that the transferring lobster permit holder 
will have an allocation to debit by 10 percent. While that is the case 
in most lobster management areas (those for which qualified permit 
holders are allocated a number of traps based on their fishing 
history), it is not true for Area 1, which is by far the largest 
lobster area both in terms of participants and business transfers 
conducted. Area 1 has only a trap cap, and anyone with a Federal 
lobster permit that qualified for Area 1 may fish up to 800 traps in 
Area 1; therefore, there is no trap allocation to debit. NMFS' proposed 
rule specifically asked for comment on this issue, and neither Maine 
nor the Commission asked NMFS to convert the Area 1 trap cap to an 
individual allocation. Nor did Maine indicate that it would change its 
trap cap in state waters to an individual trap allocation, which would 
be necessary to ensure consistency and prevent regulatory disconnects 
between Maine and NMFS. See response to Comment 5 for additional 
discussion of this issue.
    Comment 2: One lobster fisher commented that failure to implement a 
full business transfer tax might lead to manipulation of a transfer to 
avoid the tax. The individual suggested taxing full business transfers 
only in the areas where transferability occurred.
    Response: NMFS disagrees. Lobster permits are not area specific. 
Federal permit holders can choose to fish in any or all areas for which 
they are qualified. Permit holders change designations year-to-year; 
e.g., a permit holder might designate Areas 2 and 3 one year, Area 1 
the next year, and non-trap (mobile

[[Page 19018]]

gear) fishing the third. This ability to choose multiple areas and 
change them year-to-year highlights the interconnectedness of the areas 
and why management measures should not be considered in the vacuum of a 
single area. Limiting permit holders to a single area--in this 
instance, to separate out Area 1 fishers so that a transfer tax can 
occur in other areas--might simplify management and reduce 
opportunities to manipulate the system, but it would also restrict 
lobster business flexibility. On balance, NMFS has determined that the 
potential benefits of such a measure do not outweigh the cost in 
reduced flexibility.
    Comment 3: One lobster fisher and one industry association 
commented that transfer taxes, such as a 10-percent tax on full 
business transfers, were a useful tool to prevent the activation of 
latent effort. A different association and different lobster fisher, 
however, suggested that past trap cuts and the future Addendum XVIII 
trap cuts created a relatively lean industry such that a significant 
activation of latent effort was unlikely.
    Response: NMFS does not expect this final rule to increase effort 
and, therefore, a tax on full business transfers is not necessary to 
prevent the activation of latent effort. Further, existing trap caps 
and the 10-percent trap transfer tax provide additional assurance that 
effort will not increase, as does the Commission's Addendum XVIII trap 
cuts that the states have implemented and which NMFS proposed (see 
Advanced Notice of Proposed Rulemaking (78 FR 51131, August 20, 2013)). 
NMFS discussed the issue of latent trap activation and trap 
transferability in detail in its proposed rule responses to Comments 7, 
13, and 14 (78 FR 35217, June 12, 2013) and those responses remain 
relevant.
    Comment 4: Two people commented in opposition to taxing full 
business transfers. One of the individuals stated that an owner should 
be able to transfer a permit in and out of Confirmation of Permit 
History and among vessels owned by the person without the allocation 
being taxed. The other individual commented that the taxing of full 
business transfers could have unintended consequences insofar as an 
operative definition of ``business'' is unknown and might be 
interpreted to encompass transfers that industry would not want 
covered, such adding immediate family members as co-owners or 
incorporating the business.
    Response: This final rule does not tax full business transfers.
    Comment 5: One association supported NMFS' proposed Trap Transfer 
Program, but expressed concern that Program participants from Area 1 
would have to forfeit their Area 1 permits. The association suggested 
that Area 1 permit holders be excluded from implementation of this 
initial phase of the Trap Transfer Program, but that NMFS allow for 
future change to the rule in the event that Area 1 adopts permit-based 
allocations instead of the current trap cap.
    Response: This final rule implements the Trap Transfer Program as 
proposed. Federal lobster permits are not assigned specific fishing 
areas; fishers with permits can fish with traps in any area for which 
they have qualified, or fish with non-trap gear anywhere in the EEZ. As 
such, there is no such thing as a separate Federal ``Area 1 permit.'' 
Further, the final rule does not automatically disqualify Area 1 
participants upon entry into the Trap Transfer Program. Permit holders 
can purchase allocation and remain qualified for Area 1 and many may 
choose to do so (e.g., Area 1 individuals with a small Area 3 
allocation may seek additional Area 3 allocation in order to designate 
Areas 1 and 3 on their license without the Most Restrictive Rule making 
such a designation economically unfeasible). Area 1 qualifiers would, 
however, forfeit their Area 1 eligibility if they choose to sell traps. 
As discussed in the response to Comment 1, there is presently no way to 
debit Area 1 traps and prevent an expansion of fishing effort other 
than to altogether restrict that person from fishing in Area 1 in such 
a circumstance. On balance, NMFS asserts the Program benefits to Area 1 
trap buyers outweigh the negatives to Area 1 trap sellers. Selling 
traps is optional and may, in some circumstances, represent the best 
course of action for an Area 1 business. The rule allows Area 1 
qualifiers to weigh the consequences, analyze what is best for them, 
and act accordingly.
    Comment 6: One business association and one lobster fisher opposed 
the proposed rule's treatment of multi-area trap history, commenting 
that transferred allocation should retain its history and that trap 
transfer recipients should be allowed to fish in any area for which 
that trap allocation qualified. A different association supported the 
proposed rule, commenting that the recipient of allocation with multi-
area trap history should be required to choose a single area, but that 
the allocation's multi-area history be retained in the lobster 
database. The Commission wrote in favor of allowing those who purchase 
traps with multi-area history to fish the traps in all the areas for 
which they are qualified.
    Response: This final rule allows recipients of trap allocations 
with multi-area history to retain and use that trap history to fish in 
multiple areas. This is a change from the proposed rule, which proposed 
that transfer recipients of multi-area allocation had to forever assign 
a single area to that allocation. The change provides lobster 
businesses with greater flexibility to potentially fish in multiple 
areas. The proposed version followed Commission Addendum XII, which 
recommended paring down a multi-area trap allocation to a single area. 
Addendum XII's recommendation was predicated on a perceived need to 
keep things simple for the Trap Tag Database. Since that time, however, 
the ACCSP's Lobster Trap Transfer Database subcommittee indicated that 
it can develop a database that can track multi-area trap allocation 
history. With that new development, the Commission rescinded its 
Addendum XII recommendation on August 6, 2013, when it approved 
Addendum XXI. Addendum XXI incorporates into the Lobster Plan a 
provision to allow the declaration of multi-area history for 
transferred traps. To be compatible with Addendum XXI, the final rule 
withdraws this proposed requirement and retains the status quo; i.e., 
trap fishers can fish traps in all the areas for which the trap has 
qualified.
    Comment 7: Commenters universally supported the need for a 
centralized database that can keep track of all permit allocations and 
transfers. These commenters generally indicated that the database needs 
to be fully functional and tested before transferability can begin. One 
association went so far as to state that transferability cannot be 
expected to progress without it.
    Response: NMFS agrees and has repeatedly stated at Commission 
Lobster Board meetings that a fully developed and properly functioning 
trap allocation database is a necessary prerequisite to any trap 
transfer program.
    Comment 8: One lobster fisher commented that, although the database 
needs to be fully functioning prior to the start of a trap transfer 
program, the database should not be allowed to hold up the 
implementation of trap transferability and that NMFS be forceful in 
making sure the database is completed and tested on time.
    Response: NMFS agrees that the database must be fully functional 
prior to the start of the Trap Transfer Program and understands that 
the industry wants the Trap Transfer Program in place as soon as 
possible.
    NMFS will begin the qualification and allocation process for 
Federal lobster permits in Area 2 and the Outer Cape

[[Page 19019]]

Area. The final rule also sets forth the Trap Transfer Program. When 
the completion and release date of the database is known, NMFS will 
file a subsequent notice that will establish the timeline and effective 
dates for the Trap Transfer Program.
    Comment 9: One lobster fisher commented that the Addendum XVIII 
trap cuts will potentially be devastating to industry and that they 
need the Trap Transfer Program to mitigate the trap cut impacts.
    Response: This final rule establishes the Trap Transfer Program; 
however, the effective date for this program has been postponed pending 
the completion of the Trap Transfer Database. The proposed trap cuts 
are the subject of a separate rulemaking action, and NMFS intends to 
coordinate the timing of the Trap Transfer Program to allow fishermen 
to utilize it as a means of mitigating the potential economic effects 
of the proposed trap cuts. NMFS has no plans to implement the trap cuts 
prior to full implementation of the Trap Transfer Program.
    Comment 10: Commenters universally supported the Trap Transfer 
Program and urged that it be implemented as soon as possible.
    Response: NMFS agrees and intends to implement the Trap Transfer 
Program as soon as it is reasonable and practicable.
    Comment 11: One association commented that trap cuts should precede 
transferability so that ``inactive traps don't get reactivated.''
    Response: One potential benefit to having trap cuts precede 
transferability is that the trap cuts would remove effort--including 
potentially latent effort--before it could be transferred. However, 
NMFS does not expect the activation of latent effort to be a 
significant issue in this matter (see response to Comment 3). Given 
that latent effort is not expected to be significant, NMFS is 
implementing the Trap Transfer Program in this action; any trap 
reductions will be implemented through a separate rulemaking.
    Comment 12: One association said that trap cuts should happen after 
transferability; a different commenter offered that cutting traps 
during transferability was also a viable option.
    Response: NMFS is establishing the Trap Transfer Program through 
this action, to be effective as soon as practicable. Under a separate 
rulemaking action, NMFS will analyze various options for the 
implementation of the trap cuts in consideration of the Trap Transfer 
Program.
    Comment 13: A number of commenters suggested that NMFS extend the 
trap tag expiration date and delay the issuance of trap tags beyond the 
new fishing year so that new trap allocations, trap cuts, and the next 
trap tag cycle can become linked.
    Response: NMFS disagrees, and this final rule takes no steps to 
extend the trap tag expiration date or to delay the issuance of trap 
tags. Variables such as the trap tag ordering dates (February for 
Federal permit holders, December for Massachusetts, and other months 
for other states) and differing start dates for the fishing year (May 1 
for Federal permit holders, January 1 or July 1 for the states) 
illustrate the tremendous logistical challenge that exists to begin a 
new program in a coordinated fashion. However, NMFS does not consider 
extending the trap tag expiration date to be necessary. Most 
commenters' desire to hurry transferability and/or to alter variables 
such as trap tag issuance is so lobster fishers will not be forced to 
endure trap cuts while waiting for the NMFS Trap Transfer Program to be 
finalized. Addendum XVIII states that trap cuts cannot be enacted until 
NMFS implements its transferability plan. The final rule anticipates 
that date to be the start of the 2015 Federal fishing year, which will 
provide sufficient time to account for trap cuts and process 
transferred trap allocation.
    Comment 14: Numerous commenters supported allowing buyers to 
purchase allocation above an area trap cap, which would be unfishable, 
but which could be drawn upon and activated if trap cuts lowered a 
fisher's allocation below the cap.
    Response: This concept--referred to as ``trap banking'' in earlier 
Commission documents--was approved for Area 2 in Addendum XXI in August 
2013, and for Area 3 in Addendum XXII in October 2013. NMFS plans to 
consider trap banking under a separate future rulemaking. NMFS analyzed 
the issue preliminarily in its FEIS and concluded that implementing the 
Trap Transfer Program without trap banking will not undermine the Trap 
Transfer Program, nor would it necessarily prevent trap banking from 
being added to the Program in the future if the Commission decided to 
recommend such.
    Comment 15: One association and one lobster fisher commented in 
support of increasing the Area 3 trap cap to 2,000 traps. The 
Commission's Lobster Board adopted the 2,000 trap cap for Area 3 in 
Addendum XIV to the Lobster Plan on May 5, 2009, and perpetuated this 
measure when it approved Addendum XXI on August 6, 2013. Addendum XXI 
adopted a 5-year trap cap reduction schedule for Area 3, starting at 
2,000 traps. Consequently, the Commission recommended that NMFS align 
with the Area 3 trap cap to coincide with the 2,000-trap cap in the 
Lobster Plan.
    Response: This final rule will not change the Area 3 trap cap in 
the Federal regulations, which is currently set at 1,945 traps. The 
FEIS for this action did not analyze the change in the trap cap for 
Area 3, and NMFS is analyzing this measure in concert with the trap 
reductions for Area 2 and Area 3, as well as the other measures adopted 
by the Commission in Addenda XVII and XVIII, which were intended to 
address the recruitment failure in the SNE lobster stock. NMFS asserts 
that the adoption of the 2,000-trap cap should be assessed within the 
context of the 5-year trap cap reductions under Addendum XVIII, which 
are outside the scope of this rulemaking.
    Comment 16: The Connecticut Department of Environmental Protection 
recommended that the trap transfer process be conducted in a manner 
that allows for the fair participation of all citizens, and should be 
done in an open forum and in conjunction with the Commission's Trap 
Transfer Database.
    Response: NMFS intends for the Trap Transfer Program to be open and 
accessible. The Program, however, is new, and participant behavior and 
response is unknowable at this point. NMFS does not want to introduce 
variables that could engineer market behavior in response to a problem 
that may not exist. NMFS will monitor its Trap Transfer Program and 
agrees with the commenter that the agency should, and will, work with 
the Commission to investigate ways to make available transferable trap 
allocations known and accessible to participants.
    Comment 17: The Commission agreed that all Federal lobster permit 
holders be allowed to purchase transferable trap allocations for Areas 
2, 3, and the Outer Cape Area.
    Response: NMFS agrees and adopted this measure as part of the Trap 
Transfer Program to allow those Federal lobster permit holders who do 
not initially qualify for the trap fishery in these areas to obtain 
access through the purchase of transferable traps.

Changes From the Proposed Rule

    NMFS made some minor changes to the final rule to allow for more 
consistency with the Commission's Plan and to facilitate the 
administrative effectiveness in carrying out the new measures.
    The proposed rule would have restricted the buyer of a trap with a 
multi-area history to electing only one

[[Page 19020]]

management area in which to fish that trap, with the history in the 
other areas retired permanently. Instead, this final rule continues the 
status quo, which allows a Federal lobster permit holder to elect any 
and all areas for which the transferred traps have history. NMFS did 
not receive any comments to suggest that the retention of multi-area 
trap history be disallowed, and members of the industry wrote in 
support of retention of multi-area trap history.
    The proposed rule suggested that trap transferability would begin 
150 days after the publication of the final rule. However, the 
completion date of the Commission's Trap Transfer Database remains 
uncertain. Therefore, although this final rule establishes the Trap 
Transfer Program, the exact dates for the administrative transfer of 
traps (trap transfer period) will be announced in a subsequent Federal 
Register notice once NMFS has full assurance that the database is ready 
to track and administer trap transfers by dual permit holders. 
Depending on the availability of the database, Federal lobster permit 
holders may be able to transfer traps beginning in the fall of 2014, 
with those transactions taking effect on May 1, 2015.
    Finally, NMFS made minor changes to the regulatory text in Sec.  
697.19(b) through (f) to clarify that Federal lobster vessels with trap 
gear designations for Areas 2, 3, 4, 5, and the Outer Cape Area are 
limited to the number of traps allocated by the Regional Administrator 
and, although this allocation may vary, in no case shall it exceed the 
trap limit.

Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that 
this final rule is necessary for the conservation and management of the 
American lobster fishery and that it is consistent with the provisions 
of the Atlantic Coastal Act, the National Standards of the Magnuson-
Stevens Act, and other applicable laws.
    NMFS prepared an FEIS for this action. The FEIS was filed with the 
Environmental Protection Agency on December 13, 2013. A notice of 
availability was published on December 20, 2013 (78 FR 77121). In 
approving this action, NMFS issued a record of decision (ROD) 
identifying the selected alternatives. A copy of the ROD is available 
from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    A FRFA was prepared for this action. The FRFA incorporates the 
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 analysis completed to support the action. A copy of this 
analysis is available from NMFS (see ADDRESSES). A summary of the FRFA 
follows.

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 All Changes Made in the Final Rule as a Result of Such 
Comments

    None of the public comments we received regarding this rulemaking 
action raised any significant or new issues that resulted in NMFS 
changing course with respect to the major elements of the proposed 
rule. We received a total of 17 comments from 8 different commenters, 
and all generally supported the implementation of a limited access 
program for the Area 2 and Outer Cape Area and the Trap Transfer 
Program. None of the comments raised any significant issues with the 
IRFA or its supporting analyses. For a complete description of the 
comments received and NMFS's responses to those comments, see the 
COMMENTS AND RESPONSES section of this preamble.

Description and Estimate of the Number of Small Entities To Which the 
Final Rule Applies

    The regulated entities affected by this action include small 
entities engaged in the commercial lobster trap fishery. On June 20, 
2013, the Small Business Administration (SBA) issued a final rule 
revising the small business size standards for several industries, 
effective July 22, 2013 (78 FR 37398). That final rule increased the 
small entity size standard based on gross sales for finfish fishing 
from $4 million to $19 million, shellfish fishing from $4 million to $5 
million, and other marine fishing from $4 million to $7 million. 
Pursuant to the RFA, and prior to SBA's June 20, 2013, final rule, a 
FRFA analysis was conducted for this action using SBA's former size 
standards. NMFS has reviewed the analyses prepared for this action in 
light of the new standards. NMFS has determined that the new size 
standards do not affect the analyses prepared for this action because 
all Federal lobster permit holders remain categorized as small entities 
under both the old and new SBA small business size standards.
    This final rule would potentially affect any fishing vessel using 
trap gear that holds a Federal lobster permit. Despite the increase in 
the threshold for the SBA size standard for commercial fishing, all 
operating units in the commercial lobster fishery are considered small 
businesses for the purposes of this FRFA. According to dealer records 
no single lobster vessel would exceed $4 million in gross sales. In 
2012, there were a total of 3,047 Federal lobster permits, of which 
2,750 were active. The remaining 297 were in Confirmation of Permit 
History status and, therefore, inactive. Of those active permits in 
2012, 575 were issued a non-trap only lobster permit, 1,860 were issued 
a trap only lobster permit, and 315 were issued both a non-trap and 
trap gear designation. Some individuals own multiple operating units, 
so it is possible that affiliated vessels would be classified as a 
large entity under the SBA size standard. However, the required 
ownership documentation submitted with the permit application was not 
adequate to reliably identify affiliated ownership. Therefore, all 
operating units in the commercial lobster fishery are considered small 
entities for purposes of analysis.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final rule contains a collection of information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). A PRA analysis, 
including a revised Form 83i and supporting statement, have been 
reviewed and approved under OMB control number 0648-0673. There are 
five types of respondents characterized in the PRA analysis. Group 1 
applicants are those for whom NMFS has data on hand to show that their 
permits meet the eligibility criteria for one or both of the Outer Cape 
Area and Area 2. These permit holders will still need to apply by 
submitting an application form to NMFS agreeing with the NMFS 
assessment of their eligibility based on the state data. Group 2 
applicants are the subset of Group 1 pre-qualifiers who do not agree 
with the NMFS pre-determination of the areas for which they are 
eligible and/or the corresponding trap allocations. These applicants 
will be required to submit the application form, but would also need to 
provide additional documentation to support their disagreement with 
NMFS' assessment of their permits' eligibility. Group 3 applicants are 
those Federal lobster permit holders for whom there are no state data 
available to show that their permits meet the eligibility criteria for 
either Area 2 or the Outer Cape Area and who, consequently, have no 
trap allocation for either area based on

[[Page 19021]]

NMFS's review of the state-supplied data. Permit holders in this group 
may still apply for eligibility, but must submit, along with their 
application forms, documentation to support their claim of eligibility 
and trap allocation for the relevant areas. Group 4 applicants are 
those who apply for access to either Area 2 and/or the Outer Cape Area, 
are deemed ineligible (a subset of Groups 2 and 3), and appeal the 
decision based on a military, medical, or technical issue. Group 5 
applicants consist of those who fall under the Director's Appeal.

Description of the Steps the Agency Has Taken To Minimize the Economic 
Impact on Small Entities Consistent With the Stated Objectives of 
Applicable Statutes

    NMFS took several steps to minimize the burden of this action on 
small entities. First, we deferred the implementation of the Trap 
Transfer Program until the Commission's Trap Transfer Database is 
proven to be ready to track the transfers. The database is critical to 
the effective implementation of the Program and critical to allowing 
the necessary communication between NMFS and the states to be sure that 
the transfers are administered properly. Allowing transferability to 
begin prior to the completion of the database would have increased the 
likelihood of problems in the tracking of the transfers, which could 
inconvenience permit holders and severely complicate the trap transfer 
process. Further, the Program will give ample time for permit holders 
to plan for their trap transfer transactions. It will give time for 
trap buyers to locate trap sellers, negotiate a price, make an 
agreement, and have that agreement affirmed by the affected states and 
NMFS so that the new allocations can be easily effectuated at the start 
of the 2015 Federal fishing year.
    Second, NMFS will allow all Federal lobster permit holders to 
maintain their ability to elect to fish with traps in Area 2 and the 
Outer Cape Area during the entire 2014 fishing year while NMFS makes 
qualification and allocation decisions on applications for these areas. 
This will allow for a more seamless implementation of the new 
eligibility and allocation decisions, effective at the start of the 
2015 Federal fishing year. If NMFS tried to activate qualification and 
allocation decisions during the 2014 fishing year, after fishermen 
declared their areas, were issued trap tags, and issued state licenses, 
it would cause confusion amongst the fishermen and the affected state 
and Federal agencies and could complicate enforcement of trap limits 
and other lobster management measures.
    NMFS will alleviate the burden on permit holders by attempting to 
align with allocative and eligibility decisions that the states have 
already made on dual permit holders. Since a dual permit holder's 
Federal and state fishing history are one and the same, NMFS will 
accept the state's decision as a valid form of eligibility. Those who 
have been qualified by their state will be notified by NMFS that 
information exists to suggest that they qualify, which will 
substantially reduce the burden on applicants who would otherwise need 
to provide documents in support of the eligibility criteria.
    Recognizing that some permit holders have already transferred traps 
or may have different allocations than what NMFS can acknowledge, we 
incorporated a Director's Appeal provision into the qualification and 
allocation process. In the event that an allocation decision cannot be 
adopted by NMFS, the applicant's state fisheries director can appeal on 
his or her behalf and declare why allowing the applicant to qualify or 
have a certain allocation will benefit the industry and resource. In 
the event that a permit holder's state and Federal allocations do not 
align, the permit holder may opt to maintain the higher of the two 
allocations, but he or she would be prohibited from transferring traps.

Small Business Regulatory Enforcement and Fairness Act

    Section 212 of the Small Business Regulatory Enforcement and 
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 
will publish one or more guides to assist small entities in complying 
with the rule, and will designate such publications as ``small entity 
compliance guides.'' The agency will 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 
a small entity compliance guide was prepared. Copies of this final rule 
are available from the Greater Atlantic Regional Fisheries Office, and 
the small entity compliance guide will be sent to all Federal lobster 
permit holders. The small entity compliance guide and this final rule 
will be available upon request and will be posted on the Greater 
Atlantic Regional Fisheries Office Web site at https://www.nero.noaa.gov/sfd/lobster.

Paperwork Reduction Act

    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0673. Public reporting burden 
for this action is estimated as follows, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information:
     For Group 1 applicants to the Outer Cape and/or Area 2 
Limited Access Program--2 min per response;
     For Group 2 and 3 applicants to the Outer Cape and/or Area 
2 Limited Access Program--22 min per response;
     For Group 4 applicants to the Outer Cape and/or Area 2 
Limited Access Program--30 min per response;
     For Group 5 applicants to the Outer Cape and/or Area 2 
Limited Access Program--20 min per response; and
     For Trap Transfer Requests--10 min per response.

Send comments regarding these burden estimates or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by email to OIRA_Submission@omb.eop.gov, or 
fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to the 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.

    Dated: March 31, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 697 is amended 
as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

0
1. The authority citation for part 697 continues to read as follows:

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


0
2. In Sec.  697.4, revise paragraph (a)(7)(ii), remove paragraphs 
(a)(7)(vii) through (xi), and add new paragraphs (a)(7)(vii) and (viii) 
to read as follows:

[[Page 19022]]

Sec.  697.4  Vessel permits and trap tags.

    (a) * * *
    (7) * * *
    (ii) Each owner of a fishing vessel that fishes with traps capable 
of catching lobster must declare to NMFS in his/her annual application 
for permit renewal which management areas, as described in Sec.  
697.18, the vessel will fish in for lobster with trap gear during that 
fishing season. The ability to declare into Lobster Conservation 
Management Areas 1, 2, 3, 4, 5, and/or the Outer Cape Management Area, 
is first contingent upon a one-time initial qualification. The Area 3, 
4, and 5 qualification programs are concluded and the Area 1, 2, and 
Outer Cape Area qualification programs are set forth in paragraphs 
(a)(7)(vi) through (a)(7)(viii) of this section.
* * * * *
    (vii) Participation requirements for EEZ Nearshore Outer Cape Area 
(Outer Cape Area). To fish for lobster with traps in the EEZ portion of 
the Outer Cape Area, a Federal lobster permit holder must apply for 
access in an application to the Regional Administrator. The application 
process is set forth as follows:
    (A) Qualification criteria. To initially qualify into the EEZ 
portion of the Outer Cape Area, the applicant must establish with 
documentary proof the following:
    (1) That the applicant possesses a current Federal lobster permit;
    (2) That the applicant landed lobster caught in traps from the 
Outer Cape Area in either 1999, 2000, or 2001. Whichever year used 
shall be considered the qualifying year for the purposes of 
establishing the applicant's Outer Cape Area trap allocation;
    (B) Trap allocation criteria. To receive a trap allocation for the 
EEZ portion of the Outer Cape Area, the qualified applicant must also 
establish with documentary proof the following:
    (1) The number of lobster traps fished by the qualifying vessel in 
2000, 2001, and 2002; and
    (2) The total pounds of lobster landed in 2000, 2001, and 2002.
    (C) Trap allocation formula. The Regional Administrator shall 
allocate traps for use in the Outer Cape Area based upon the 
applicant's highest level of Effective Traps Fished during the 
qualifying year. Effective Traps Fished shall be the lower value of the 
maximum number of traps reported fished for that qualifying year 
compared to the predicted number of traps that is required to catch the 
reported poundage of lobsters for that year as set forth in the 
Commission's allocation formula identified in Addendum XIII to 
Amendment 3 of the Commission's Interstate Fishery Management Plan for 
American Lobster.
    (D) Documentary proof. To satisfy the Outer Cape Area Qualification 
and Trap Allocation Criteria set forth in paragraphs (a)(7)(vii)(A) and 
(B) of this section, the applicants will be limited to the following 
documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that will allow NMFS to identify the Federal lobster permit 
in its database, which will at a minimum include: The applicant's name 
and address; vessel name; and permit number.
    (2) As proof of traps fished in the Outer Cape Area and lobsters 
landed from the Outer Cape Area in 2000, 2001, or 2002, the applicant 
must provide the documentation reported to the state of the traps 
fished and lobsters landed during any of those years, as follows:
    (i) State records. An applicant must provide documentation of his 
or her state reported traps fished and lobster landings in 2000, 2001, 
or 2002. The Regional Administrator shall presume that the permit 
holder was truthful and accurate when reporting to his or her state the 
traps fished and lobster landed in 2000, 2001, and 2002, and that the 
state records of such are the best evidence of traps fished and lobster 
landed during those years.
    (ii) State decision. An applicant may provide his or her state's 
qualification and allocation decision to satisfy the documentary 
requirements of this section. The Regional Administrator shall accept a 
state's qualification and allocation decision as prima facie evidence 
in support of the Federal qualification and allocation decision. The 
Regional Administrator shall presume that the state decision is 
appropriate, but that presumption is rebuttable and the Regional 
Administrator may choose to disallow the use of the state decision if 
the state decision was incorrect or based on factors other than those 
set forth in this section. This state decision may include not only the 
initial state qualification and allocation decision, but may also 
incorporate state trap transfer decisions that the state allowed since 
the time of the initial allocation decision.
    (iii) States lacking reporting. An applicant may provide Federal 
vessel trip reports, dealer records, or captain's logbook as 
documentation in lieu of state records if the applicant can establish 
by clear and convincing evidence that the involved state did not 
require the permit holder to report traps or landings during 2000, 
2001, or 2002.
    (E) Application period. Applicants will have 180 days to submit an 
application. The time period for submitting an application for access 
to the EEZ portion of the Outer Cape Area begins on May 7, 2014 
(application period start date) and ends November 3, 2014. Failure to 
apply for Outer Cape Management Area access by that date shall be 
considered a waiver of any future claim for trap fishery access into 
the Outer Cape Area.
    (F) Appeal of denial of permit. Any applicant having first applied 
for initial qualification into the Outer Cape Area trap fishery 
pursuant to this section, but having been denied access or allocation, 
may appeal to the Regional Administrator within 45 days of the date 
indicated on the notice of denial. Any such appeal must be in writing. 
Appeals may be submitted in the following two situations:
    (1) Clerical Appeal. The grounds for Clerical Appeal shall be that 
the Regional Administrator erred clerically in concluding that the 
vessel did not meet the criteria in paragraph (a)(7)(vii) of this 
section. Errors arising from oversight or omission such as ministerial, 
mathematical, or typographical mistakes would form the basis of such an 
appeal. Alleged errors in substance or judgment do not form a 
sufficient basis of appeal under this paragraph. The appeal must set 
forth the basis for the applicant's belief that the Regional 
Administrator's decision was made in error. If the appealing applicant 
does not clearly and convincingly prove that an error occurred, the 
appeal must be denied.
    (2) Director's Appeal. A state's marine fisheries agency may appeal 
on behalf of one of its state permit holders. The only grounds for a 
Director's Appeal shall be that the Regional Administrator's decision 
on a dual permit holder's Federal permit has created a detrimental 
incongruence with the state's earlier decision on that permit holder's 
state permit. In order to pursue a Director's Appeal, the state must 
establish the following by a preponderance of the evidence:
    (i) Proof of an incongruence. The state must establish that the 
individual has a state lobster permit that the state has qualified for 
access with traps into the Outer Cape Area, as well as a Federal 
lobster permit that the Regional Administrator has denied access or 
restricted the permit's trap allocation into the Outer Cape Area. The 
state must establish that the incongruent permits were linked during 
the year or years used in the initial application

[[Page 19023]]

such that the fishing history used in Federal and state permit 
decisions was the same.
    (ii) Proof of detriment. The state must provide a letter supporting 
the granting of trap access for the Federal permit holder. In the 
support letter, the state must explain how the incongruence in this 
instance is detrimental to the Outer Cape Area lobster fishery and why 
granting the appeal is, on balance, in the best interests of the 
fishery overall. A showing of detriment to the individual permit holder 
is not grounds for this appeal and will not be considered relevant to 
the decision.
    (G) Appellate timing and review. All appeals must be submitted to 
the Regional Administrator in writing and reviewed as follows:
    (1) Clerical Appeals timing. Applicants must submit Clerical 
Appeals no later than 45 days after the date on the NMFS Notice of 
Denial of the Initial Qualification Application. NMFS shall consider 
the appeal's postmark date as constituting the submission date for the 
purposes of determining timing. Failure to register an appeal within 45 
days of the date of the Notice of Denial will preclude any further 
appeal. The appellant may notify the Regional Administrator in writing 
of his or her intent to appeal within the 45 days and request a time 
extension to procure the necessary documentation. Time extensions shall 
be limited to 30 days and shall be calculated as extending 30 days 
beyond the initial 45-day period that begins on the original date on 
the Notice of Denial. Appeals submitted beyond the deadlines stated 
herein will not be accepted.
    (2) Director's Appeals timing. State Directors must submit 
Director's Appeals on behalf of their constituents no later than 180 
days after the date of the NMFS Notice of Denial of the Initial 
Qualification Application. NMFS shall consider the appeal's postmark 
date as constituting the submission date for the purposes of 
determining timing. Failure to register an appeal within 180 days of 
the date of the Notice of Denial will preclude any further appeal. The 
Director may notify the Regional Administrator in writing of his or her 
intent to appeal within the 180 days and request a time extension to 
procure the necessary documentation. Time extensions shall be limited 
to 30 days and shall be calculated as extending 30 days beyond the 
initial 180-day period that begins on the original date on the Notice 
of Denial. Appeals submitted beyond the deadline will not be accepted.
    (3) Agency response. Upon receipt of a complete written appeal with 
supporting documentation in the time frame allowable, the Regional 
Administrator will then appoint an appeals officer who will review the 
appellate documentation. After completing a review of the appeal, the 
appeals officer will make findings and a recommendation, which shall be 
advisory only, to the Regional Administrator, who shall make the final 
agency decision whether to qualify the applicant.
    (H) Status of vessels pending appeal. The Regional Administrator 
may authorize a vessel to fish with traps in the Outer Cape Area during 
an appeal. The Regional Administrator may do so by issuing a letter 
authorizing the appellant to fish up to 800 traps in the Outer Cape 
Area during the pendency of the appeal. The Regional Administrator's 
letter must be present onboard the vessel while it is engaged in such 
fishing in order for the vessel to be authorized. If the appeal is 
ultimately denied, the Regional Administrator's letter authorizing 
fishing during the appeal will become invalid 5 days after receipt of 
the notice of appellate denial, or 15 days after the date on the notice 
of appellate denial, whichever occurs first.
    (viii) Participation requirements for EEZ nearshore lobster 
management area 2 (Area 2). To fish for lobster with traps in the EEZ 
portion of Area 2, a Federal lobster permit holder must apply for 
access in an application to the Regional Administrator. The application 
process is as follows:
    (A) Qualification criteria. To initially qualify into the EEZ 
portion of Area 2, the applicant must establish with documentary proof 
the following:
    (1) That the applicant possesses a current Federal lobster permit;
    (2) That the applicant landed lobster caught in traps from Area 2 
in 2001, 2002, or 2003. Whichever year used shall be considered the 
qualifying year for the purposes of establishing the applicant's Area 2 
trap allocation;
    (B) Trap allocation criteria. To receive a trap allocation for the 
EEZ portion of Area 2, the qualified applicant must also establish with 
documentary proof the following:
    (1) The number of lobster traps fished by the qualifying vessel in 
the qualifying year; and
    (2) The total pounds of lobster landed during that qualifying year.
    (C) Trap allocation formula. The Regional Administrator shall 
allocate traps for use in Area 2 based upon the applicant's highest 
level of Effective Traps Fished during the qualifying year. Effective 
Traps Fished shall be the lower value of the maximum number of traps 
reported fished for that qualifying year compared to the predicted 
number of traps that is required to catch the reported poundage of 
lobsters for that year as set forth in the Commission's allocation 
formula identified in Addendum VII to Amendment 3 of the Commission's 
Interstate Fishery Management Plan for American Lobster.
    (D) Documentary proof. To satisfy the Area 2 Qualification and Trap 
Allocation Criteria set forth in paragraphs (a)(7)(viii)(A) and (B) of 
this section, the applicants will be limited to the following 
documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that will allow NMFS to identify the Federal lobster permit 
in its database, which will at a minimum include: The applicant's name 
and address; vessel name; and permit number.
    (2) As proof of traps fished in Area 2 and lobsters landed from 
Area 2 in 2001, 2002, or 2003, the applicant must provide the 
documentation reported to the state of the traps fished and lobsters 
landed during any of those years as follows:
    (i) State records. An applicant must provide documentation of his 
or her state reported traps fished and lobster landings in 2001, 2002, 
or 2003. The landings must have occurred in a state adjacent to Area 2, 
which the Regional Administrator shall presume to be limited to 
Massachusetts, Rhode Island, Connecticut, and/or New York. The Regional 
Administrator shall presume that the permit holder was truthful and 
accurate when reporting to his or her state the traps fished and 
lobster landed in 2001, 2002, and 2003 and that the state records of 
such are the best evidence of traps fished and lobster landed during 
those years.
    (ii) State decision. An applicant may provide his or her state's 
qualification and allocation decision to satisfy the documentary 
requirements of this section. The Regional Administrator shall accept a 
state's qualification and allocation decision as prima facie evidence 
in support of the Federal qualification and allocation decision. The 
Regional Administrator shall presume that the state decision is 
appropriate, but that presumption is rebuttable and the Regional 
Administrator may choose to disallow the use of the state decision if 
the state decision was incorrect or based on factors other than those 
set forth in this section. This state decision may include not only the 
initial state qualification

[[Page 19024]]

and allocation decision, but may also incorporate state trap transfer 
decisions that the state allowed since the time of the initial 
allocation decision.
    (iii) States lacking reporting. An applicant may provide Federal 
vessel trip reports, dealer records, or captain's logbook as 
documentation in lieu of state records if the applicant can establish 
by clear and convincing evidence that the involved state did not 
require the permit holder to report traps or landings during 2001, 
2002, or 2003.
    (E) Application period. Applicants will have 180 days to submit an 
application. The time period for submitting an application for access 
to the EEZ portion of Area 2 begins on May 7, 2014 (application period 
start date) and ends November 3, 2014. Failure to apply for Area 2 
access by that date shall be considered a waiver of any future claim 
for trap fishery access into Area 2.
    (F) Appeal of denial of permit. Any applicant having first applied 
for initial qualification into the Area 2 trap fishery pursuant to this 
section, but having been denied access, may appeal to the Regional 
Administrator within 45 days of the date indicated on the notice of 
denial. Any such appeal must be in writing. Appeals may be submitted in 
the following three situations:
    (1) Clerical Appeal. The grounds for Clerical Appeal shall be that 
the Regional Administrator clerically erred in concluding that the 
vessel did not meet the criteria in paragraph (a)(7)(viii) of this 
section. Errors arising from oversight or omission, such as 
ministerial, mathematical, or typographical mistakes, would form the 
basis of such an appeal. Alleged errors in substance or judgment do not 
form a sufficient basis of appeal under this paragraph. The appeal must 
set forth the basis for the applicant's belief that the Regional 
Administrator's decision was made in error. If the appealing applicant 
does not clearly and convincingly prove that an error occurred, the 
appeal must be denied.
    (2) Medical or Military Hardship Appeal. The grounds for a Hardship 
Appeal shall be limited to those situations in which medical incapacity 
or military service prevented a Federal lobster permit holder from 
fishing for lobster in 2001, 2002, and 2003. If the Federal lobster 
permit holder is able to prove such a hardship, then the individual 
shall be granted the additional years of 1999 and 2000 from which to 
provide documentary proof in order to qualify for and fish traps in 
Area 2. In order to pursue a Hardship Appeal, the applicant must 
establish the following by a preponderance of the evidence:
    (i) Proof of medical incapacity or military service. To prove 
incapacity, the applicant must provide medical documentation from a 
medical provider, or military service documentation from the military, 
that establishes that the applicant was incapable of lobster fishing in 
2001, 2002, and 2003. An applicant may provide his/her state's 
qualification and allocation appeals decision to satisfy the 
documentary requirements of this section. The Regional Administrator 
shall accept a state's appeals decision as prima facie evidence in 
support of the Federal decision on the appeal. The Regional 
Administrator shall presume that the state decision is appropriate, but 
that presumption is rebuttable and the Regional Administrator may 
choose to disallow the use of the state decision if the state decision 
was incorrect or based on factors other than those set forth in this 
section.
    (ii) Proof of Area 2 trap fishing in 1999 and 2000. To prove a 
history of Area 2 lobster trap fishing in 1999 and/or 2000, the 
applicant must provide documentary proof as outlined in paragraph 
(a)(7)(viii)(D) of this section.
    (3) Director's Appeal. A state's marine fisheries agency may appeal 
on behalf of one of its state permit holders. The only grounds for a 
Director's Appeal shall be that the Regional Administrator's decision 
on a dual permit holder's Federal permit has created a detrimental 
incongruence with the state's earlier decision on that permit holder's 
state permit. In order to pursue a Director's Appeal, the state must 
establish the following by a preponderance of the evidence:
    (i) Proof of an incongruence. The state must establish that the 
individual has a state lobster permit, which the state has qualified 
for access with traps into Area 2, as well as a Federal lobster permit, 
which the Regional Administrator has denied access or restricted the 
permit's trap allocation into Area 2. The state must establish that the 
incongruent permits were linked during the year or years used in the 
initial application such that the fishing history used in Federal and 
state permit decisions was the same.
    (ii) Proof of detriment. The state must provide a letter supporting 
the granting of trap access for the Federal permit holder. In the 
support letter, the state must explain how the incongruence in this 
instance is detrimental to the Area 2 lobster fishery and why granting 
the appeal is, on balance, in the best interests of the fishery 
overall. A showing of detriment to the individual permit holder is not 
grounds for this appeal and will not be considered relevant to the 
decision.
    (G) Appellate timing and review. All appeals must be submitted to 
the Regional Administrator in writing and reviewed as follows:
    (1) Clerical Appeals timing. Applicants must submit Clerical 
Appeals no later than 45 days after the date on the NMFS Notice of 
Denial of the Initial Qualification Application. NMFS shall consider 
the appeal's postmark date as constituting the submission date for the 
purposes of determining timing. Failure to register an appeal within 45 
days of the date of the Notice of Denial will preclude any further 
appeal. The appellant may notify the Regional Administrator in writing 
of his or her intent to appeal within the 45 days and request a time 
extension to procure the necessary documentation. Time extensions shall 
be limited to 30 days and shall be calculated as extending 30 days 
beyond the initial 45-day period that begins on the original date on 
the Notice of Denial. Appeals submitted beyond the deadlines stated 
herein will not be accepted.
    (2) Medical or Military Hardship Appeals timing. Applicants must 
submit Medical or Military Hardship Appeals no later than 45 days after 
the date on the NMFS Notice of Denial of the Initial Qualification 
Application. NMFS shall consider the appeal's postmark date as 
constituting the submission date for the purposes of determining 
timing. Failure to register an appeal within 45 days of the date of the 
Notice of Denial will preclude any further appeal. The appellant may 
notify the Regional Administrator in writing of his or her intent to 
appeal within the 45 days and request a time extension to procure the 
necessary documentation. Time extensions shall be limited to 30 days 
and shall be calculated as extending 30 days beyond the initial 45-day 
period that begins on the original date on the Notice of Denial. 
Appeals submitted beyond the deadlines stated herein will not be 
accepted.
    (3) Director's Appeals timing. State Directors must submit 
Director's Appeals on behalf of their constituents no later than 180 
days after the date of the NMFS Notice of Denial of the Initial 
Qualification Application. NMFS shall consider the appeal's postmark 
date as constituting the submission date for the purposes of 
determining timing. Failure to register an appeal within 180 days of 
the date of the Notice of Denial will preclude any further appeal. The 
Director may notify the Regional Administrator in writing of his or her 
intent to appeal within the 180 days and

[[Page 19025]]

request a time extension to procure the necessary documentation. Time 
extensions shall be limited to 30 days and shall be calculated as 
extending 30 days beyond the initial 180-day period that begins on the 
original date on the Notice of Denial. Appeals submitted beyond the 
deadline will not be accepted.
    (4) Agency response. Upon receipt of a complete written appeal with 
supporting documentation in the time frame allowable, the Regional 
Administrator will appoint an appeals officer who will review the 
appellate documentation. After completing a review of the appeal, the 
appeals officer will make findings and a recommendation, which shall be 
advisory only, to the Regional Administrator, who shall make the final 
agency decision whether to qualify the applicant.
    (H) Status of vessels pending appeal. The Regional Administrator 
may authorize a vessel to fish with traps in Area 2 during an appeal. 
The Regional Administrator may do so by issuing a letter authorizing 
the appellant to fish up to 800 traps in Area 2 during the pendency of 
the appeal. The Regional Administrator's letter must be present onboard 
the vessel while it is engaged in such fishing in order for the vessel 
to be authorized. If the appeal is ultimately denied, the Regional 
Administrator's letter authorizing fishing during the appeal will 
become invalid 5 days after receipt of the notice of appellate denial 
or 15 days after the date on the notice of appellate denial, whichever 
occurs first.
* * * * *

0
3. In Sec.  697.7, add paragraph (c)(1)(xxx) to read as follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (xxx) Outer Cape Area seasonal closure. The Federal waters of the 
Outer Cape Area shall be closed to lobster fishing with traps by 
Federal lobster permit holders from January 15 through March 15.
    (A) Lobster fishing with traps is prohibited in the Outer Cape Area 
during this seasonal closure. Federal trap fishers are prohibited from 
possessing or landing lobster taken from the Outer Cape Area during the 
seasonal closure.
    (B) All lobster traps must be removed from Outer Cape Area waters 
before the start of the seasonal closure and may not be re-deployed 
into Outer Cape Area waters until after the seasonal closure ends. 
Federal trap fishers are prohibited from setting, hauling, storing, 
abandoning or in any way leaving their traps in Outer Cape Area waters 
during this seasonal closure. Federal lobster permit holders are 
prohibited from possessing or carrying lobster traps aboard a vessel in 
Outer Cape Area waters during this seasonal closure unless the vessel 
is transiting through the Outer Cape Area pursuant to paragraph 
(c)(1)(xxx)(D) of this section.
    (C) The Outer Cape Area seasonal closure relates only to the Outer 
Cape Area. The restrictive provisions of Sec. Sec.  697.3 and 
697.4(a)(7)(v) do not apply to this closure. Federal lobster permit 
holders with an Outer Cape Area designation and another Lobster 
Management Area designation on their Federal lobster permit would not 
have to similarly remove their lobster gear from the other designated 
management areas.
    (D) Transiting Outer Cape Area. Federal lobster permit holders may 
possess lobster traps on their vessel in the Outer Cape Area during the 
seasonal closure only if:
    (1) The trap gear is stowed; and
    (2) The vessel is transiting the Outer Cape Area. For the purposes 
of this section, transiting shall mean passing through the Outer Cape 
Area without stopping to reach a destination outside the Outer Cape 
Area.
    (E) The Regional Administrator may authorize a permit holder or 
vessel owner to haul ashore lobster traps from the Outer Cape Area 
during the seasonal closure without having to engage in the exempted 
fishing process in Sec.  697.22, if the permit holder or vessel owner 
can establish the following:
    (1) That the lobster traps were not able to be hauled ashore before 
the seasonal closure due to incapacity, vessel/mechanical 
inoperability, and/or poor weather; and
    (2) That all lobsters caught in the subject traps will be 
immediately returned to the sea.
    (F) The Regional Administrator may condition the authorization 
described in paragraph (c)(1)(xxx)(E) as appropriate in order to 
maintain the overall integrity of the closure.
* * * * *

0
4. Revise Sec.  697.19 to read as follows:


Sec.  697.19  Trap limits and trap tag requirements for vessels fishing 
with lobster traps.

    (a) Area 1 trap limits. The Area 1 trap limit is 800 traps. 
Federally permitted lobster fishing vessels shall not fish with, deploy 
in, possess in, or haul back more than 800 lobster traps in Area 1.
    (b) Area 2 trap limits. The Area 2 trap limit is 800 traps. 
Federally permitted lobster fishing vessels may only fish with traps 
that have been previously qualified and allocated into Area 2 by the 
Regional Administrator. This allocation may be modified by trap cuts 
and/or trap transfers, but in no case shall the allocation exceed the 
trap limit.
    (c) Area 3 trap limits. The Area 3 trap limit is 1,945 traps. 
Federally permitted lobster fishing vessels may only fish with traps 
that have been previously qualified and allocated into Area 3 by the 
Regional Administrator. This allocation may be modified by trap cuts 
and/or trap transfers, but in no case shall the allocation exceed the 
trap limit.
    (d) Area 4 trap limits. The Area 4 trap limit is 1,440 traps. 
Federally permitted lobster fishing vessels may only fish with traps 
that have been previously qualified and allocated into Area 4 by the 
Regional Administrator. This allocation may be modified by trap cuts 
and/or trap transfers, but in no case shall the allocation exceed the 
trap limit.
    (e) Area 5 trap limits. The Area 5 trap limit is 1,440 traps, 
unless the vessel is operating under an Area 5 Trap Waiver permit 
issued under Sec.  697.26. Federally permitted lobster fishing vessels 
may only fish with traps that have been previously qualified and 
allocated into Area 5 by the Regional Administrator. This allocation 
may be modified by trap cuts and/or trap transfers, but in no case 
shall the allocation exceed the trap limit.
    (f) Outer Cape Area. The Outer Cape Area trap limit is 800 traps. 
Federally permitted lobster fishing vessels may only fish with traps 
that have been previously qualified and allocated into the Outer Cape 
Area by the Regional Administrator. This allocation may be modified by 
trap cuts and/or trap transfers, but in no case shall the allocation 
exceed the trap limit.
    (g) Lobster trap limits for vessels fishing or authorized to fish 
in more than one EEZ management area. A vessel owner who elects to fish 
in more than one EEZ Management Area is restricted to the lowest trap 
limit of those areas and may not fish with, deploy in, possess in, or 
haul back from any of those elected management areas more lobster traps 
than the lowest number of lobster traps allocated to that vessel for 
any of the elected management areas.
    (h) Conservation equivalent trap limits in New Hampshire state 
waters. Notwithstanding any other provision, any vessel with a Federal 
lobster permit

[[Page 19026]]

and a New Hampshire Full Commercial Lobster license may fish up to a 
maximum of 1,200 lobster traps in New Hampshire state waters, to the 
extent authorized by New Hampshire lobster fishery regulations. 
However, such vessel may not fish, possess, deploy, or haul back more 
than 800 lobster traps in the Federal waters of EEZ Nearshore 
Management Area 1, and may not fish more than a combined total of 1,200 
lobster traps in the Federal and New Hampshire state waters portions of 
EEZ Nearshore Management Area 1.
    (i) Trap tag requirements for vessels fishing with lobster traps. 
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. Any vessel with a Federal lobster permit may not possess, 
deploy, or haul back lobster traps in any portion of any management 
area that do not have a valid, federally recognized lobster trap tag 
permanently attached to the trap bridge or central cross-member.
    (j) Maximum lobster trap tags authorized for direct purchase. In 
any fishing year, the maximum number of tags authorized for direct 
purchase by each permit holder is the applicable trap limit specified 
in paragraphs (a) through (f) of this section plus an additional 10 
percent to cover trap loss.
    (k) EEZ Management Area 5 trap waiver exemption. Any vessel issued 
an Area 5 Trap Waiver permit under Sec.  697.4(p) is exempt from the 
provisions of this section.

0
5. Add Sec.  697.27 to read as follows:


Sec.  697.27  Trap transferability.

    (a) Federal lobster permit holders may elect to participate in a 
program that allows them to transfer trap allocation to other 
participating Federal lobster permit holders, subject to the following 
conditions:
    (1) Participation requirements. To be eligible to participate in 
the Federal Trap Transfer Program:
    (i) An individual must possess a valid Federal lobster permit; and
    (ii) If the individual is dually permitted with both Federal and 
state lobster licenses, the individual must agree to synchronize his or 
her state and Federal allocations in each area for which there is an 
allocation. This synchronization shall be set at the lower of the state 
or Federal allocation in each area. This provision does not apply to 
Areas 1 and 6 as neither area have a Federal trap allocation.
    (iii) Individuals participating in the Lobster Management Area 1 
trap fishery may participate in the Trap Transfer Program, but doing so 
may result in forfeiture of future participation in the Area 1 trap 
fishery as follows:
    (A) Area 1 fishers may accept, receive, or purchase trap 
allocations up to their Area 1 trap limit identified in Sec.  697.19 
and fish with that allocation both in Area 1 and the other area or 
areas subject to the restrictive provisions of Sec.  697.3 and Sec.  
697.4(a)(7)(v).
    (B) Area 1 fishers with trap allocations in Areas 2, 3, and/or the 
Outer Cape Area may transfer away or sell any portion of that 
allocation, but, in so doing, the Area 1 fisher shall forfeit any right 
to fish in Area 1 with traps in the future.
    (2) Trap allocation transfers. Trap allocation transfers will be 
allowed subject to the following conditions:
    (i) State/Federal alignment. Participants with dual state and 
Federal permits may participate in the Trap Transfer Program each year, 
but their state and Federal trap allocations must be aligned as 
required in paragraph (a)(1)(ii) of this section at the start and close 
of each trap transfer period.
    (ii) Eligible traps. Buyers and sellers may only transfer trap 
allocations from Lobster Management Areas 2, 3, and the Outer Cape 
Area.
    (iii) Debiting remaining allocation. The permit holder transferring 
trap allocations shall have his or her remaining Federal trap 
allocation in all Lobster Conservation Management Areas debited by the 
total amount of allocation transferred. This provision does not apply 
to Areas 1 and 6, as neither area have a Federal trap allocation. A 
seller may not transfer a trap allocation if, after the transfer is 
debited, the allocation in any remaining Lobster Conservation 
Management Area would be below zero.
    (iv) Crediting allocations for partial trap transfers. In a partial 
trap transfer, where the transfer is occurring independent of a Federal 
lobster permit transfer, the permit holder receiving the transferred 
allocation shall have his or her allocation credited as follows:
    (A) Trap retirement. All permit holders receiving trap allocation 
transfers shall retire 10 percent of that transferred allocation from 
the fishery for conservation. This provision does not pertain to full 
business transfers where the transfer includes the transfer of a 
Federal lobster permit and all traps associated with that permit.
    (B) Multi-area trap allocation history. To the extent that 
transferred trap allocations have been granted access into multiple 
management areas, the recipient may elect any and all management areas 
for which the traps have demonstrated history.
    (C) All trap allocation transfers are subject to whatever trap 
allocation cap exists in the involved lobster management area. No 
participant may receive a transfer that, when combined with existing 
allocation, would put that permit holder's trap allocation above the 
involved trap caps in Sec.  697.19.
    (v) In all allocation transfers, the buyer's and seller's initial 
allocations shall be calculated as being the allocation that the buyer 
and seller would otherwise have on the last day of the fishing year.
    (vi) Trap allocations may only be transferred in 10-trap 
increments.
    (vii) Trap allocation transfers must be approved by the Regional 
Administrator before becoming effective. The Regional Administrator 
shall approve a transfer upon a showing by the involved permit holders 
of the following:
    (A) The proposed transfer is documented in a legible written 
agreement signed and dated by the involved permit holders. The 
agreement must identify the amount of allocation being transferred as 
well as the Federal lobster permit number from which the allocation is 
being taken and the Federal lobster permit number that is receiving the 
allocation. If the transfer involves parties who also possess a state 
lobster license, the parties must identify the state lobster license 
number and state of issuance.
    (B) That the transferring permit holder has sufficient allocation 
to transfer and that the permit holder's post-transfer allocation is 
clear and agreed to. In determining whether seller has sufficient 
allocation to transfer, the Regional Administrator will calculate the 
seller's pre-transfer and post-transfer allocations. The pre-transfer 
allocation shall be the amount of the seller's allocation as it would 
exist on the last day of the fishing year. The post-transfer allocation 
shall be the pre-transfer allocation minus the total amount of traps 
being transferred prior to application of the 10-percent trap 
retirement set forth in paragraph (a)(2)(iv)(A) of this section.
    (C) That the permit holder receiving the transfer has sufficient 
room under any applicable trap cap identified in Sec.  697.19 to 
receive the transferred allocation and that the recipient's post-
transfer allocation is clear and agreed to. In determining whether the 
buyer has sufficient room to receive allocation, the Regional 
Administrator will calculate the buyer's pre-transfer and post-transfer 
allocations. The pre-transfer allocation shall be the amount of the 
buyer's allocation as it would exist on the last day of the fishing 
year. The post-transfer allocation shall be the pre-

[[Page 19027]]

transfer allocation plus the total amount of traps being transferred 
minus 10 percent of the transferred allocation that shall be retired 
pursuant to the provisions of (a)(2)(iv)(A) of this section.
    (3) Trap transfer period. The timing of the Trap Transfer Program 
is as follows:
    (i) Federal lobster permit holders must declare their election into 
the program in writing to the NMFS Permit Office. Electing into the 
Trap Transfer Program is a one-time declaration, and the permit holder 
may participate in the program in later years without needing to re-
elect into the program year after year. Federal permit holders may 
elect into the program at any time in any year, but their ability to 
actively transfer traps will be limited by the timing restrictions 
identified in paragraphs (a)(3)(ii) and (iii) of this section.
    (ii) All trap transfer requests must be made in writing before 
September 30 each year, and if approved, will become effective at the 
start of the next fishing year. The Regional Administrator shall 
attempt to review, reconcile and notify the transferring parties of the 
disposition of the requested transfer before December 31 each year. 
Transfers are not valid until approved by the Regional Administrator.
    (iii) Year 1. Notwithstanding paragraph (a)(3)(ii) of this section, 
the timing of the first year of the Trap Transfer Program is linked to 
the completion of the Commission's Trap Tag Database. NMFS will analyze 
the Trap Tag Database and when NMFS finds that the database is capable 
of tracking transfers for multiple jurisdictions, then NMFS will file a 
notice alerting the public of the date of when the Trap Transfer 
Program will begin.
    (b) [Reserved]

[FR Doc. 2014-07734 Filed 4-4-14; 8:45 am]
BILLING CODE 3510-22-P