[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Proposed Rules]
[Pages 52346-52360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17557]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 0104130930-5226-03; I.D. 032301C]
RIN 0648-AP18


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes new and revised Federal American lobster 
(Homarus americanus) regulations in response to recommendations by the 
Atlantic States Marine Fisheries Commission (Commission) in Addenda II 
and III to Amendment 3 of the Interstate Fishery Management Plan for 
American Lobster (ISFMP). The proposed lobster management measures are 
intended to increase protection to American lobster broodstock 
throughout the stock's range, and would apply to lobsters harvested in 
one or more of seven Lobster Conservation Management Areas (LCMA). In 
addition, NMFS proposes measures that would clarify existing Federal 
lobster regulations.

DATES: Written comments must be received no later than 5 p.m. Eastern 
Standard Time on or before October 17, 2005.

ADDRESSES: Written comments should be sent to Harold C. Mears, 
Director, State, Federal, and Constituent Programs Office, Northeast 
Region, NMFS, One Blackburn Drive, Gloucester, MA 01930. Mark the 
outside of the envelope ``American Lobster Proposed Rule Comments.'' 
Comments may be sent via email at <a href="/cdn-cgi/l/email-protection#276b484517141712674948464609404851"><span class="__cf_email__" data-cfemail="baf6d5d88a898a8ffad4d5dbdb94ddd5cc">[email protected]</span></a>. Include in the 
subject line ``American Lobster Proposed Rule Comments.'' Comments may 
also be sent via fax (978) 281-9117, or via the Federal e-Rulemaking 
Portal at www.regulations.gov.
    Copies of the American lobster proposed rule, its Draft 
Environmental Assessment/Initial Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (DEA/IRIR/IRFA) are available from 
Harold Mears, Director, State, Federal and Constituent Programs Office, 
NMFS, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Robert Ross, NMFS, Northeast Region, 
(978) 281-9234, fax (978) 281-9117.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    These proposed regulations would modify Federal lobster 
conservation 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

[[Page 52347]]

fishing in the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. 
These regulations must be (1) compatible with the effective 
implementation of an ISFMP developed by the Commission and (2) 
consistent with the national standards set forth in section 301 of the 
Magnuson-Stevens Act.

Purpose and Need for Management

    American lobster are managed within the framework of the 
Commission. The Commission is a deliberative body comprised of 
representatives both from the Atlantic coastal states and the Federal 
Government. The Commission serves to develop fishery conservation and 
management strategies for certain coastal species and coordinates the 
efforts of the states and Federal Government toward concerted 
sustainable ends. The Commission decides upon a management strategy as 
a collective, then forwards that strategy to the states and Federal 
government along with a recommendation that the states and Federal 
Government take action (e.g., enact regulations) in furtherance of this 
strategy.
    The Commission reports that American lobster (Homarus americanus) 
experience high fishing mortality rates and are growth overfished 
throughout their range (U.S./Canada border to Cape Hatteras, North 
Carolina). Overfishing is a rate of removal that is too high and, if 
continued, the removals would not be sustainable. Growth overfishing, 
under the Commission ISFMP, means that most lobsters are harvested at 
or just above the legal minimum size and the maximum yield is not 
produced because of high fishing mortality on these smaller lobsters. 
In March 2000, the Commission issued an American lobster stock 
assessment report that concluded that the resource is growth 
overfished. That assessment was further evaluated by an external peer 
review, which took place during May 2000. The stock assessment external 
peer review concluded that fishing rates are unacceptably high, 
recruitment overfishing is occurring, and that a precautionary approach 
in management of the resource is warranted to sustain future viability 
of the lobster fishery. Recruitment overfishing, under the Commission 
ISFMP, means that the number of new lobsters available to the fishery 
each year is reduced by high fishing mortality rates. Since most egg 
production is from recruits and the first molt group above the minimum 
legal size, a decline in recruitment would lead to a decline in egg 
production. The Peer Review Report provided several management 
recommendations on the implications of the stock assessment report, 
including recommendations to address increasing lobster mortality and 
to rebuild stocks. The Commission is currently updating the American 
lobster stock assessment, and a peer review of the Commission stock 
assessment is scheduled for completion in 2005.
    The Commission has developed a plan to end the overfishing and has 
requested assistance from the Federal Government in the form of 
compatible Federal regulations. The Atlantic Coastal Act directs the 
Federal Government to support the management efforts of the Commission. 
Additionally, to the extent the Federal Government seeks to regulate a 
Commission species, those Federal regulations must be compatible with 
the Commission plan. The proposed measures in this regulatory action 
respond to: the biological need to address increasing lobster mortality 
and to rebuild stocks; the practical need to have uniform state and 
Federal regulations; and, the legal need to support the Commission plan 
in complementary fashion.

Background

    The Commission set forth the foundation of its American lobster 
fishery management plan in Amendment 3 to the ISFMP (Amendment 3) in 
December 1997. The Federal Government issued compatible regulations 
that complemented Amendment 3 in December 1999. The Amendment 3 
regulations established assorted measures to directly, even if 
preliminarily, address overfishing (e.g., trap caps and minimum gauge 
sizes). Amendment 3 created seven lobster management areas and industry 
led lobster management teams from which would spring recommendations 
for future measures to end overfishing. Examples of such more specific 
measures were set forth in Amendment 3 addenda: measures to limit 
future access to LCMAs 3, 4, and 5 in Addendum I to Amendment 3 
(Addendum I) (Commission approved August 1999 - compatible Federal 
regulations enacted March 2003); measures to increase protection of the 
American lobster broodstock described in this proposed rule as 
recommended in Addendum II to Amendment 3 (Addendum II) (Commission 
approved February 2001); and Addendum III to Amendment 3 (Addendum III) 
(Commission approved February 2002); and, measures to control fishing 
effort being analyzed in a separate rulemaking action recommended in 
Addendum IV to Amendment 3 (Addendum IV) (Commission approved December 
2003), Addendum V to Amendment 3 (Addendum V) (Commission approved 
March 2004), and Addendum VI to Amendment 3 (Addendum VI) (Commission 
approved February 2005).
    Protection of broodstock lobsters is one of the overarching 
objectives in the Commission's lobster management plan. Although 
Addendum II pre-dates Addendum III, both addenda involve protections 
designed to increase the abundance of broodstock lobsters and thereby 
increase egg production. The Commission's recommendations to implement 
the broodstock measures in Addenda II and III form the basis of the 
measures described in this proposed rule. Broodstock protective 
measures proposed in this regulatory action, and in Addenda II and III, 
are the following: increase in the minimum legal gauge size in LCMAs 2, 
3, 4, 5, and the Outer Cape; increase in the size of escape vents on 
lobster traps in LCMAs 2, 3, 4, 5, and the Outer Cape; implementation 
of a maximum legal gauge size in LCMA 4 and 5; require mandatory V-
notching of female lobsters carrying eggs in LCMA 1 and in LCMA 3 above 
the 42[deg]30' North latitude line; and require a zero tolerance 
definition of V-notched female lobsters in LCMA 1.
    In response to the Commission's Addendum II recommendations, NMFS 
published an advanced notice of proposed rulemaking (ANPR) in the 
Federal Register on May 24, 2001 (66 FR 28726). The agency responded to 
the Commission's Addendum III by filing in the Federal Register an ANPR 
and a notice of intent (NOI) to prepare an environmental impact 
statement (EIS) on September 5, 2002 (67 FR 56801). This notice 
declared NMFS' intention to combine the Addendum II and Addendum III 
rulemakings because the Addenda involved similar subject matter - 
namely management measures designed to protect brood lobster stock. 
Addenda II and III, however, also contain numerous other effort control 
management measures, such as a trap transferability program for the 
Outer Cape Management Area and a mandatory so-called ``choose and use'' 
program for LCMA 3 fishers that would require qualified permit holders 
to permanently designate LCMA 3 when renewing Federal lobster permits 
each year. Because these control measures are so intimately a part of 
the subsequently developed Commission's Addenda IV, V, and VI, NMFS 
determined that those effort control programs in Addenda II and III be 
analyzed contemporaneously with the Addenda IV - VI measures in a 
forthcoming EIS. Accordingly, NMFS published its ANPR along with an NOI 
to address these lobster fishing effort control measures in a Federal 
Register

[[Page 52348]]

notice dated May 10, 2005 (70 FR 24995). Therefore, measures proposed 
in this action would implement specified lobster broodstock measures 
from Addenda II and III, and a separate rulemaking will evaluate the 
effort control measures specified in Addenda II - VI.
    At present, most states have issued their complementary Addenda II 
and III regulations, but the Federal Government has not. As a result, 
there is presently a regulatory incongruence with the Commission's 
American lobster ISFMP, at least insofar as it pertains to the 
broodstock measures identified in Addenda II and III. Most Federal 
lobster permit holders also hold a state lobster license, and they must 
abide by the ISFMP measures by virtue of their state license, even if 
the same restrictions have not yet been placed on their Federal permit. 
Measures in this proposed rule would primarily impact Federal lobster 
permit holders from states that have not implemented all measures in 
the Commission's ISFMP. Generally, the exception to state coverage of 
all lobster ISFMP measures, under the Commission's ISFMP, is for states 
that are classified as de minimis states. Certain states located at the 
southern end of the range can qualify for de minimis status under the 
Commission's lobster ISFMP if a given state's declared annual landings, 
averaged over a 2-year period, amount to less than 40, 000 lbs (18,144 
kg) of American lobster. While de minimis states are required to 
promulgate all coastwide measures contained in Amendment 3, many of the 
area-specific management measures, including the broodstock measures 
proposed in this action, are not required to be implemented by the de 
minimis states under the Commission's lobster ISFMP. However, Federal 
lobster regulations apply to all Federal lobster permit holders, 
including permit holders residing in and landing in de minimis states. 
Four states (North Carolina, Virginia, Delaware, and Maryland) are 
classified under the Commission's lobster ISFMP as de minimis states in 
2005. Based on the analysis completed for this action, approximately 
ten percent of current Federal lobster permit holders are from de 
minimis states or reside in states that may not have fully implemented 
all Commission ISFMP management measures.

Comments and Responses

    Addenda II and III to Amendment 3 of the Commission's Interstate 
Fishery Management Plan for American Lobster (ISFMP) include both 
lobster broodstock conservation measures and lobster trap effort 
control measures. This proposed rule considers the management measures 
in these two addenda that are relevant to broodstock conservation. 
These are: recommendations for lobster minimum size increases and 
escape vent size increases in lobster conservation management areas 
(Areas) 2, 3, 4, 5 and the Outer Cape Management Area; implementation 
of a maximum carapace size in Area 4 and Area 5; mandatory v-notching 
of egg-bearing female lobster in Area 1 and in the Gulf of Maine 
portion of Area 3; a zero tolerance definition of v-notching in Area 1; 
and a 5-mile (8-km) overlap zone along the common boundary of Area 3 
and Area 5.
    Subsequent to the Commission's approval of Addenda II and III to 
Amendment 3 of the ISFMP, NMFS solicited comments from the public by 
three separate actions published in the Federal Register: an ANPR on 
May 24, 2001; a NOI dated September 24, 2001, both relative to Addendum 
II; and, a combined ANPR/NOI, relative to both Addenda II and III, 
published on September 5, 2002. As noted previously in this preamble, 
the effort control recommendations in Addenda II and III will be 
considered for Federal implementation in a separate rulemaking action. 
Therefore, this section is specific to the comments received on the 
broodstock conservation measures included in Addenda II and III, which 
are relevant to this proposed rule. NMFS notes that the public is 
encouraged to submit comments on this proposed rule during the comment 
period as specified in the DATES section of this document.

Overall Summary of All Comments Received in Response to the Three 
Requests for Comments

    To summarize, the majority of commenters to all three requests for 
comments were in favor of gauge increases up to 3 3/8 inches (8.57 cm) 
in Areas 3, 4, 5 and the Outer Cape Area, with some favoring additional 
increases to 3 1/2 inches (8.89 cm) if necessary for conservation in 
Area 3. Generally, the comments were from Area 3 fishermen and within 
the context of Area 3 gauge increases. A majority of commenters also 
favored the escape vent size increases consistent with those approved 
in Addenda II and III. At least one comment was received stating 
opposition to the additional gauge increases in Area 3 and the Outer 
Cape Area beyond 3 3/8 inches (8.57 cm). A commenter expressed concern 
over the ability to enforce lobster regulations and pointed out the 
complexities of enforcing differing regulations at the state and 
Federal level. The representative of an association of recreational 
diving clubs opposes maximum sizes for lobster in Areas 4 and 5. Review 
of the comments revealed support from commenters for v-notching of egg-
bearing females in the Gulf of Maine portion of Area 3 and throughout 
Area 1. One state agency expressed opposition to the Area 1 v-notch 
requirement. All comments received with regard to the establishment of 
an overlap zone along the common boundary of Area 3 and Area 5 support 
this management measure.

Breakdown of Comments Received for Each Request for Comments

ANPR, published on May 24, 2001
    In response to the ANPR, published on May 24, 2001, sixteen 
comments were received. Fifteen commenters wrote in favor of the 
minimum gauge size and escape vent size increases with one opposed to 
these measures. Of those that favored the gauge increases, nine 
commenters specifically supported the four additional gauge increases 
up to 3 1/2 inches (8.89 cm), should they be deemed necessary for 
conservation in Area 3, as set forth in Addenda II and III. One in 
favor of gauge increases up to 3 3/8 inches (8.57 cm) stated that the 
four additional gauge increases up to 3 1/2 inches (8.89 cm) should not 
be implemented in Area 3.
NOI published on September 24, 2001
    A total of 23 comments were received in response to the NOI 
published on September 24, 2001. Seventeen commenters were in favor of 
the Area 3 minimum gauge size increase to 3 3/8 inches (8.57 cm), the 
additional gauge increases if necessary to 3 1/2 inches (8.89 cm), and 
the associated escape vent size increases.
    Two individuals were opposed to minimum gauge size increases. One 
commenter noted an incorrect statement in the September 24, 2001 NOI 
concerning the escape vent increases. In general the statement reads 
that traps in all lobster management areas are subject to an escape 
vent size increase in Addendum II. However, the commenter correctly 
noted that only those areas with proposed gauge increases are scheduled 
for escape vent size increases; specifically neither Area 1 nor Area 6 
are scheduled for escape vent increases in Addenda II. NMFS notes this 
oversight and will assess, within the context of this rulemaking, the 
gauge and escape vent size increases as set forth in the Addenda.

[[Page 52349]]

ANPR/NOI published September 5, 2002
    Twenty-two comments were received in response to the combined ANPR/
NOI published September 5, 2002. Five support the gauge size increases 
in the addenda while one individual is opposed to the additional 
minimum size increases in Area 3 and the Outer Cape Area beyond 3 3/8 
inches (8.57 cm) and supports consistent management measures in all 
areas. Thirteen commenters support the escape vent size increases with 
one opposed. One supports a maximum gauge size and one is opposed. 
Twelve support v-notch requirements in Area 3 with none opposed. One 
supports a v-notch requirement in Area 1 with one opposed. Twelve 
support the establishment of an overlap zone along the common boundary 
of Area 3 and Area 5 with none opposed. One comment was received in 
opposition to the Federal prohibition on changes to the lobster 
management area designations on the Federal permit when Federal permits 
are sold. One commenter supports a change to the Federal regulations to 
allow authorization of a substitute vessel to haul gear of an 
inoperable vessel with a Federal permit. A representative of an 
association of recreational diving clubs is opposed to maximum size 
limits that would impact the recreational dive fishery in Areas 4 and 
5. One commenter expressed concern about the complexity of enforcing 
management measures that differ at the state and Federal level.

Responses to Comments

    Comment 1: The great majority of commenters recommend that the 
gauge increases set forth in Addenda II and III be implemented, along 
with the associated escape vent size increases. There were a total of 
four opposing comments, although none detailed the basis of their 
opposition.
    Response: NMFS proposes to implement the minimum gauge size 
increases (up to 3 3/8 inches (8.57 cm)) and the associated escape vent 
size increases in Areas 2, 3, 4, 5 and the Outer Cape Management Area, 
to be compatible with the ISFMP. NMFS believes that implementing these 
measures will facilitate enforcement of lobster regulations and improve 
egg production consistent with the intent of the ISFMP. NMFS does, 
however, acknowledge those commenters in opposition to the gauge 
increases, and has reviewed such an alternative in its draft 
Environmental Assessment. NMFS invites the commenters to review the 
analysis and to comment further on this, or any other issue, in this 
proposed rule.
    Comment 2: One state agency, in response to the NOI on September 
24, 2001, recommended that if the minimum gauge size does increase, the 
legal minimum size for lobster should remain consistent in all lobster 
conservation management areas to facilitate enforcement and minimize 
marketing problems.
    Response: NMFS acknowledges the complexities associated with 
differing management measures amongst management areas. The agency 
further acknowledges that uniformity and standardization amongst 
management areas would simplify some of these complexities. The agency, 
however, has to balance the utility in having a uniform management 
scheme against its obligation to support a Commission management 
program that has, as two of its objectives, the maintenance of flexible 
regional programs and maintenance of existing social and cultural 
features of the industry wherever possible. Both such objectives form 
the foundation of the area management scheme established in Amendment 3 
to the Commission's ISFMP. This proposed rule seems to achieve balance. 
It simplifies overall lobster management, thereby facilitating 
enforcement, by making Federal lobster regulations more consistent with 
existing state regulations. Yet, the proposed rule remains supportive 
of the area management construct set forth in the ISFMP by 
acknowledging that lobster biology and industry practices differ 
throughout the vast range of this fishery, and thus, a ``one-size-fits-
all'' approach, although potentially easier to enforce (but only if all 
states endorsed such an approach - if some states made their 
regulations uniform, but others did not, then enforcement might 
actually become more complicated) might undermine the objectives of 
area management.
    Comment 3: Comments on at least two occasions supported the gauge 
and vent size increases and cautioned that inconsistent state and 
Federal regulations create management and enforcement difficulties.
    Response: NMFS believes that the proposed rule addresses many 
discrepancies between state and Federal regulation. NMFS notes, 
however, that although present Federal and state gauge regulations may 
differ at this time, the regulations do not conflict. Specifically, 
Federal regulations at 50 CFR 697.3(3) state that ``The regulations in 
this part do not preempt more restrictive state laws, or state 
enforcement of more restrictive state laws.'' Accordingly, NMFS expects 
that states with more restrictive gauge and vent regulations should be 
able to enforce those regulations because the Federal Government has 
expressly stated that it has not preempted the field relative to more 
restrictive gauge and vent sizes. In this particular instance, dual 
state/Federal permit holders would be able to comply with both state 
and Federal regulations by complying with the more restrictive state 
regulation, and indeed a state might so enforce such compliance. The 
``more restrictive'' regulatory concept embodied in 50 CFR 697.(3) 
becomes especially germane in situations where the Federal Government 
is in the process of creating compatible regulations in response to 
Commission recommendations. Federal rulemaking, with the numerous 
statutory obligations attendant thereto, can be a far more time 
consuming process than rulemaking at the state level. Accordingly, 
states are often able promulgate regulations in response to Commission 
regulations quicker than the Federal Government. Thus, the Federal 
regulation at 50 CFR 697.3(3) provides a degree of regulatory stability 
during the Federal rulemaking inter period.
    Comment 4: More than one commenter who favors gauge increases 
stated that the additional gauge increases up to 3 1/2 inches (8.89 cm) 
should not be implemented in Area 3.
    Response: NMFS proposes to implement the minimum size increases to 
3 3/8 inches (8.57 cm)) and escape vent size increases (2 inches by 5 
3/4 inches (5.08 cm x 14.61 cm)) rectangular, and 2 5/8 inches (6.67 
cm) circular, consistent with Addenda II and III in Areas 2, 3, 4 and 5 
and the Outer Cape Management Area. The additional gauge increases up 
to 3 1/2 inches (8.89 cm) were included in the addenda for 
implementation only if it was determined that they were necessary for 
conservation. However, the gauge size increase schedule approved by the 
Commission has already directed states to implement the first of these 
``additional'' minimum carapace size increases, that is 3 13/32 inches 
(8.66 cm) in Areas 3 and Outer Cape. Regardless, since these additional 
gauge increases are being evaluated in the current stock assessment, 
NMFS does not propose to implement the gauge increases above 3 3/8 
inches (8.57 cm) at this time until a more thorough analysis of their 
necessity is completed.
    Comment 5: One commenter expressed support for amending the current 
measure in the Federal lobster regulations prohibiting changes during 
the Federal fishing year to lobster

[[Page 52350]]

conservation management area designations after the Federal permit has 
been issued.
    Response: The current regulations allow changes to the lobster trap 
area designations on the Federal permit only during a vessel 
replacement or at the start of the Federal fishing year. This proposed 
rule offers a measure to allow the trap area designations to be 
altered, after the permit has been renewed for the fishing year, in the 
event of the sale or transfer of a Federal lobster permit, or within 45 
days of the effective date of the permit. This change will more clearly 
set forth NMFS regulatory practices, is consistent with the current 
practices for other Federal fisheries permits and will give Federal 
permit holders a chance to make a change if a mistake was made when 
areas were initially designated.
    Comment 6: A comment was received in support for Federal 
authorization of a substitute vessel to haul the lobster trap gear of 
an inoperable vessel with a Federal lobster permit.
    Response: NMFS agrees and proposes to allow short-term removal of 
trap gear from the water with a substitute vessel when a Federally 
permitted vessel is inoperable. This will facilitate the ability of 
fishermen to abide by the regulations in 50 CFR 229 that require all 
set gear to be tended every 30 days to decrease the jeopardy to marine 
mammals. This measure will also help to prevent gear theft and 
potential creation of hazardous ghost gear that may occur when traps 
are left unattended for relatively long periods.
    Comment 7: The representative of an association of recreational 
scuba divers in New Jersey questions how the proposed maximum lobster 
carapace sizes in Areas 4 and 5 will affect the recreational divers who 
seek to harvest ``trophy'' lobsters.
    Response: NMFS believes that regulations to implement maximum 
carapace size limits in Area 4 and 5 will not substantially impact the 
recreational dive fishery for lobster. As a preliminary matter, these 
size limitations will still allow scuba divers to harvest trophy sized 
lobsters - up to 5 1/2 inches (13.97 cm) in Area 5 and 5 1/4 inches 
(13.34 cm) in Area 4. The commenter provided no objective information 
relative to numbers of lobster typically caught above 5 1/2 inches 
(13.97 cm) in Area 5 and 5 1/4 inches (13.34 cm) in Area 4. Based upon 
the best available information and location of the involved areas, NMFS 
does not believe the number of lobster expected to be caught by divers 
above the proposed maximum size to be significant. NMFS, however, 
invites the public to further comment on the agency's analysis in this 
proposed rule and provide comments by the end of the comment period as 
specified in the DATES section of this document.

Proposed Changes from the Current Regulations

    This Federal lobster management action proposes the following 
specific management measures, as described here.

Modify Egg Production Schedule

    The American lobster resource is considered overfished when the 
fishing mortality rate (F) results in a reduction in estimated egg 
production per harvestable lobster to 10 percent (F10 percent) or less 
of a non-fished population. In other words, lobsters are considered 
overfished when harvest so reduces the amount of lobsters remaining in 
the water that the remaining lobsters can produce no more than 10 
percent of the eggs that an unfished population would produce. If 
lobsters are overfished- i.e., the remaining uncaught lobsters are so 
few that they can only produce as a group 10 percent of the number of 
eggs that an unfished population would collectively produce, then the 
present Commission lobster plan recommends that managers act to restore 
egg production to 10 percent or greater by a date certain, presently 
December 31, 2005.
    Originally, in Addendum I, the Commission targeted a rough deadline 
(December 31, 2005) by which they hoped to end overfishing. In so 
doing, the Commission used the best available stock information, but 
admittedly dated information, to extrapolate out an egg production 
schedule - a time line with interim objectives - that would meet the 
targeted deadline of December 31, 2005. The Commission acknowledged, 
however, that the Addendum I schedule and target deadline would need to 
be adjusted in later addenda following the peer reviewed stock 
assessment conducted in 2000.
    The May 2000 the peer-reviewed American lobster stock assessment 
confirmed that overfishing of American lobster stocks is occurring 
throughout the species' range. Based upon the year 2000 stock 
assessment, the Commission revised its target deadline to end 
overfishing to December 31, 2008. Accordingly, the Commission, in 
Addendum II and its recommendations to the Federal Government, revised 
the schedule for increasing egg production to account for updated 
information on the current status of the stock.
    This proposed Federal action would revise and extend the egg 
production schedule time line by three years, from December 31, 2005, 
to December 31, 2008. Accordingly, this action would revise the 
timeline to restore egg production in each of the management areas to 
10 percent or greater of the egg production of an unfished population 
(i.e., the present overfishing definition) by December 31, 2008. This 
action is based upon the most recent stock assessment and is 
recommended by the Commission.

Increased Minimum Harvest Size in LCMAs 2, 3, 4, 5, and the Outer Cape

    One key Addendum II broodstock management measure was to increase 
the minimum legal harvest size of American lobster from 3 1/4 inches to 
3 3/8 inches (8.26 cm to 8.57 cm) carapace length in certain LCMAs. The 
carapace is the unsegmented body shell of the American lobster. 
Carapace length is the straight line measurement from the rear of the 
eye socket parallel to the center line of the carapace to the posterior 
edge of the carapace. Many scientists believe that many lobsters are 
harvested before they have had an opportunity to reproduce. Hence, 
increasing the minimum legal size of lobster would force fishers to 
throw back lobsters at the present legal minimum size, allowing those 
lobsters an additional season to remain in the water, mature and 
reproduce. Accordingly, increasing the minimum carapace length or 
minimum gauge size will protect a larger number of mature female 
American lobsters, the broodstock, and increase egg production by 
allowing reproduction in a sector of the population that many believe 
has heretofore been harvested before reaching maturity.
    Addendum II includes a series of minimum gauge size increases in 
state and Federal waters of LCMAs 2, 3, 4, 5, and the Outer Cape, but 
not LCMA 1 and LCMA 6 (Long Island Sound). By approving Addendum II, 
the states agreed to implement annual Area-specific gauge increases 
beginning December 31, 2001. NMFS received a recommendation from the 
Commission to implement complementary Federal measures for Federal 
waters of LCMAs 2, 4, 5, and the Outer Cape, as well as in LCMA 3 
(comprised entirely of Federal waters). Specifically, the minimum 
allowable harvest size of American lobster in state waters of LCMAs 2, 
4, 5, and the Outer Cape increased 1/32 inches (0.08 cm) annually until 
2004 to an ultimate minimum size of 3 3/8 inches (8.57 cm), except for 
the de minimis states and the State of Maine. The Commission recommends 
that the gauge increases in Federal waters of LCMA 2, 4, 5, and the

[[Page 52351]]

Outer Cape, as well as in LCMA 3 increase to an ultimate minimum size 
of 3 3/8 inches (8.57 cm).
    This proposed Federal management measure would implement a single 
1/8 inch (0.32 cm) increase in the Federal minimum allowable harvest 
size of American lobster in LCMAs 2, 3, 4, 5, and the Outer Cape. The 
lobster minimum size increase would result in a change of the current 
minimum harvest size from 3 1/4 inches to 3 3/8 inches (8.26 cm to 8.57 
cm) in LCMAs 2, 3, 4, 5, and the Outer Cape. LCMA 1 and LCMA 6 would 
retain the current minimum harvest size of 3 1/4 inches (8.26 cm). 
Although a 4-year phased in Federal implementation of the 3 3/8 inches 
(8.57 cm) minimum harvest size in LCMAs 2, 3, 4, 5, and the Outer Cape 
is technically the Commission's recommendation, as specified in a 
letter dated February 13, 2001, due to the passage of time and 
compatible state regulations currently at 3 3/8 inches (8.57 cm) 
minimum harvest size, it likely no longer represents the Commission's 
preference.

Modify Size of Lobster Trap Escape Vents in LCMAs 2, 3, 4, 5, and the 
Outer Cape

    Lobster trap escape vents are another management measure designed 
to increase egg production. Conceptually, escape vents are holes 
intentionally placed in the trap that are large enough to allow 
sublegal lobsters caught in a trap to exit, yet be small enough to 
prevent legal sized lobsters from escaping.
    Addendum II called for an increase in the rectangular escape vent 
minimum size from 1 15/16 inches by 5 3/4 inches (4.92 cm by 14.61 cm) 
to 2 inches by 5 3/4 inches (5.08 cm by 14.61 cm). These 
recommendations were made to the Federal Government in a letter dated 
February 13, 2001, and are consistent with and follow the Commission's 
recommended increase in the minimum harvest size of American lobster 
from the current minimum harvest size of 3 1/4 inches to 3 3/8 inches 
(8.26 cm to 8.57 cm). As with the increased minimum gauge size, the 
Commission recommended that the increase in the trap escape vent size 
apply only to lobster trap gear fished in state and Federal waters of 
LCMAs 2, 3, 4, 5, and the Outer Cape, but not LCMA 1 and LCMA 6. An 
increase in the size of the escape vent opening by 1/16 inch ( 0.16 
cm), by requiring at least one rectangular escape vent with an 
unobstructed opening not less than 2 inches by 5 3/4 inches (5.08 cm by 
14.61 cm) per trap, or at least two circular escape vents per trap 
measuring 2 5/8 inches (6.67 cm) in diameter, was evaluated by the 
Commission's Lobster Technical Committee and determined to provide the 
maximum escapement of sublegal lobsters under 3 3/8 inches (8.57 cm), 
which is consistent with 100 percent retention of legal lobsters.
    This proposed Federal management measure would implement a single 
1/16 inch (0.16 cm) increase in the Federal minimum lobster trap 
rectangular escape vent opening of lobster traps in LCMAs 2, 3, 4, 5, 
and the Outer Cape. The increase would require at least one rectangular 
escape vent with an unobstructed opening not less than 2 inches by 5 3/
4 inches (5.08 cm by 14.61 cm) per trap or at least two circular escape 
vents per trap measuring 2 5/8 inches (6.67 cm) in diameter. At the 
current time, Federal regulations require that all lobster trap gear 
must have a rectangular escape vent with an unobstructed opening not 
less than 1 15/16 inches by 5 3/4 inches (4.92 cm by 14.61 cm) or two 
circular escape vents with unobstructed openings not less than 2 7/16 
inches (6.19 cm) in diameter. LCMA 1 and LCMA 6 would retain the 
current Federal rectangular and circular lobster trap escape vent 
requirements.

Require Mandatory V-Notching in LCMA 1 and in LCMA 3 above the 42 30' 
North Latitude Line

    Mandatory v-notching is another management measure designed to 
increase egg production. V-notching is a process wherein a lobster 
fisher cuts a v-shaped notch into the flipper in the tail of an egg-
bearing female lobster. Any subsequent lobster fisher catching that v-
notched lobster must return it to the sea. As such, v-notching is a 
management measure designed to specifically protect the female lobster 
broodstock. At present, there is no Federal requirement to cut a v-
shaped notch into the flipper in the tail of an egg-bearing female 
lobster, although Federal regulations currently prohibit possession of 
female lobsters possessing a v-notch. The Commission has recommended 
that the Federal Government require mandatory v-notching for all 
Federal vessels fishing in LCMA 1 and in LCMA 3 above the 42[deg] 30' 
North latitude line.
    This proposed Federal management measure would require all Federal 
lobster fishers with LCMA 1 permits to v-notch all egg bearing lobsters 
and would mandate all Federal permit holders fishing in LCMA 3 above 
the 42[deg] 30' North latitude line to v-notch all egg-bearing female 
lobsters. There would be no requirement to v-notch all egg-bearing 
female lobsters in LCMAs 2, 4, 5, 6, the Outer Cape or LCMA 3 below the 
42 30' North latitude line.

Implement Zero Tolerance V-Notching in LCMA 1

    Zero tolerance v-notching of female lobsters relates both to the 
interpretation of what constitutes a v-notch and the limited latitude 
that the government will grant a violator possessing a v-notched 
lobster. Commission guidelines, as well as state and Federal 
regulations, prohibit the harvesting of v-notched lobsters. Prior to 
Addendum III, however, the ISFMP, and current Federal regulations for 
all LCMAs, provided only one definition of what constituted a v-notched 
lobster, i.e., the Commission and current Federal regulations defined 
``v notch'' as being a straight-sided cut, without setal hairs, at 
least 1/4 inch (0.64 cm) in depth and tapering to a point. In contrast, 
lobster fishers from Maine had long considered a v-shaped notch to be a 
cut ``of any size'' in the flipper next to and to the right of the 
center flipper, and Maine State regulations prohibited possession based 
on that more restrictive definition. Possessors of v-notched lobsters 
outside of Maine State waters in LCMA 1, often argued that a clearly v-
notched lobster was legal to possess because the v-notch was less than 
1/4 inch (0.64 cm) or that the cut was not obviously straight sided. 
Maine argued that its definition ensured protection of female lobsters 
beyond the first molt, since after the first molt, possession was 
prohibited if there was a notch of any size discernable. The 
Commission, in Addendum III, supported and approved recommendations 
throughout LCMA 1 that sought to define ``v-notch'' as being a v-shaped 
notch of any size in the flipper next to and to the right of the center 
flipper as viewed from the rear of the female lobster. The Commission 
recommended that the Federal regulations be amended consistent 
therewith.
    This proposed Federal management measure would amend the Federal v-
notch definition to include a second, so called zero tolerance, 
definition of a v-notched lobster to mean a v-shaped notch of any size 
in the flipper next to and to the right of the center flipper as viewed 
from the rear of the female lobster in all of LCMA 1. Federal 
regulations would retain the current definition of a v-notched lobster 
in all other LCMAs (LCMAs 2, 3, 4, 5, 6, and the Outer Cape), as being 
a straight-sided cut, without setal hairs, at least 1/4 inch (0.64 cm) 
in depth and tapering to a point.

[[Page 52352]]

Implement a Maximum Harvest Size in LCMA 4 and LCMA 5

    Another management measure designed to protect lobster broodstock 
is the implementation of a maximum harvest size for lobster. Scientific 
evidence seems to indicate lobster can be a long-lived species, up to 
and over 50 years of age, and that bigger lobsters are more successful 
breeders, produce more eggs, and those eggs are more likely to survive. 
For that reason, maximum size gauge restrictions on lobster can improve 
egg production by prohibiting harvest of bigger, and potentially, 
better breeding lobsters, forcing their return to the sea and allowing 
further reproduction. In Amendment 3, the Commission set a 5-inch 
(12.7-cm) maximum gauge size (carapace length) on all male and female 
lobsters caught in LCMA 1. The Amendment 3 recommendations have already 
been incorporated into Federal law. The Commission, in Addendum III, 
called for a 5 1/4-inch (13.34-cm) maximum gauge size on all female 
lobsters harvested in LCMA 4, and a 5 1/2-inch (13.97-cm) maximum gauge 
size on all female lobsters harvested in LCMA 5. The Commission 
requested that the Federal Government implement compatible maximum 
gauge size regulations in LCMAs 4 and 5.
    This proposed Federal management measure would amend Federal 
lobster regulations to set a maximum size restriction for possession of 
female lobsters for Federal permit holders fishing in, or electing to 
fish in LCMA 4 and LCMA 5. This proposed measure would prohibit the 
possession of a female lobster with a carapace size in excess of 5 1/4 
inches (13.34 cm) in LCMA 4 and would prohibit the possession of a 
female lobster with a carapace size in excess of 5 1/2 inches (13.97cm) 
in LCMA 5.

Establish a Overlap Zone Between LCMA 3 and LCMA 5

    Lobster management in the southern end of the range is complicated 
by a number of factors, including distinct seasonality, limited 
abundance of lobsters, reliance on multiple mixed fisheries, and the 
similarity between finfish traps and fishing methods used to harvest 
American lobster. With the approval of Addendum I and the establishment 
of a historical participation based limited entry program for continued 
access to LCMA 3, those lobster fishers in LCMA 5 fishing near the 
boundary with LCMA 3 were disadvantaged. Specifically, a requirement to 
document annual lobster landings in excess of 25,000 lbs to qualify for 
continued access to LCMA 3 was deemed problematic for LCMA 5 lobster 
fishers, because resource availability is variable at the southern end 
of the range. The Commission, in Addendum III, proposed a 5-mile (8-km) 
overlapping boundary zone between LCMAs 3 and 5, extending in to LCMA 3 
along the length of the eastern most border of LCMA 5 for 5 miles (8 
km), and recommended that the Federal Government implement regulations 
consistent therewith.
    This proposed Federal management action would establish a 5-mile 
(8-km) overlapping boundary zone between LCMAs 3 and 5, extending along 
the length of the eastern most border of LCMA 5 for 5 miles (8 km) in 
to LCMA 3. Federal lobster vessels in possession of an LCMA 5 lobster 
permit, but not an LCMA 3 permit, would not be bound by LCMA 3 
regulations within the proposed overlap zone. Federal lobster vessels 
in possession of an LCMA 3 permit, but not an LCMA 5 permit, would not 
be bound by LCMA 5 regulations within the proposed overlap zone. 
Federal lobster vessels in possession of an LCMA 3 and LCMA 5 permit 
would be required to comply with the most restrictive regulations 
applicable within the proposed overlap zone.
    The Proposed LCMA 3/LCMA 5 coordinates are as follows:

----------------------------------------------------------------------------------------------------------------
                       Current Coordinates                           Proposed Overlap Coordinates
---------------------------------------------------------------------------------------------------
                                     Latitude        Longitude                          Longitude
             Point                   ([deg]N)         ([deg]W)     Latitude ([deg]N)    ([deg]W)
---------------------------------------------------------------------------------------------------
                  V                  39[deg]50'       73[deg]01'   39[deg]50'.......   72[deg]55'
                  X                38[deg]39.5'      73[deg] 40'   38[deg]38.2'.....  73[deg]33.8'
                  Y                 38[deg] 12'       73[deg]55'   38[deg]10.4'.....   73[deg]49'
                  Z                  37[deg]12'       74[deg]44'   37[deg]10.6'.....   74[deg]38'
                  ZA                 35[deg]34'       74[deg]51'   35[deg]31.9'.....  74[deg]45.5'
                  ZB               35[deg]14.5'       75[deg]31'   35[deg]14.5'.....  75[deg]19.3'
----------------------------------------------------------------------------------------------------------------
From point V, current coordinates extending out to new overlap coordinates, back to point ZB.

Clarify Existing Regulations

    These measures attempt to clarify existing Federal lobster 
regulations and propose to: allow a change in the LCMA designations 
upon sale or transfer of a fishing vessel with a Federal lobster 
permit, or within 45 days of the permit's effective date; clearly 
reference other laws and regulations applicable to Federal lobster 
permit holders; clearly prohibit hauling or possession of lobster trap 
gear belonging to another vessel; and, exempt lobster trap gear 
retrieval from provisions of the exempted fishing regulations by a 
substitute vessel if a Federally permitted vessel is inoperable or 
mechanically impaired.

Allow a Change in the LCMA Designations

    Current Federal regulations at 50 CFR 697.4(a)(7)(iv) prohibit a 
Federal lobster permit owner from changing the permit's lobster 
management area designations during the fishing year. In other words, 
lobster fishers have yearly flexibility to designate new or different 
LCMAs when they renew their annual permit, but upon making that 
designation, fishers are bound by that choice for the remainder of the 
fishing year. This measure was designed in large part to close a 
potential regulatory loophole. That is, Federal regulations at Sec.  
697.4(a)(7)(v) mandate that permits with multiple LCMA designations 
must abide by ''...the most restrictive management measures in effect 
for any one of the specified areas, regardless of the area being 
fished, for the entire fishing year.'' Individuals, however, could 
circumvent this most restrictive provision if they were allowed to drop 
or add LCMA permit designations based on the seasonal availability of 
the resource, or if management measures within a certain management 
area became more or less restrictive during the year.
    Although the restriction on changing LCMA designations was designed 
to prevent speculative add/drop fishing practices, it was not intended 
to apply to vessel sales and transfers or unintended errors in the 
permit category selection noted upon issuance or

[[Page 52353]]

renewal of a vessel permit. The regulation specifically allows a change 
in permit LCMA designation for a replacement vessel. The term 
``replacement vessel,'' however, could be interpreted narrowly as 
pertaining to a vessel that replaces a former vessel for reasons other 
than the sale of that former vessel (e.g., the former vessel being 
permanently or temporarily decommissioned due to damage or engine 
trouble, etc.). Accordingly, the present regulatory text has confused 
some lobster fishers as to their ability to re-designate LCMAs upon the 
sale and receipt of a new vessel and permit. Furthermore, the existing 
regulatory text could be interpreted narrowly to prevent a correction 
to either a new vessel application or permit renewal, if an error 
occurs in the permitting process. This change would allow a re-
designation of the vessel permit LCMA category upon sale or transfer of 
a vessel with a lobster permit. This change would allow permit holders, 
upon initial receipt of a new or renewed permit, one opportunity to 
request a change in the permit LCMA category if requested within 45 
days of the effective date of the vessel's permit. If such a request is 
not received within 45 days of the effective date of the vessel's 
permit, the vessel owner may not request a change in the permit 
category for the duration of the fishing year. Provision for one 
opportunity to change categories, if requested within 45 days, will 
bring lobster permitting procedures in line with existing procedures 
currently in place for other Northeast vessel permit practices.
    This proposed Federal action would clarify the existing regulations 
to specifically allow a lobster fisher to re-designate LCMAs on a newly 
purchased permit, a transferred permit, or within 45 days of the 
effective date of the vessel permit.

Clearly Reference Other Pertinent Federal Laws

    Presently, lobster regulations are issued under the Atlantic 
Coastal Act in Title 50 of the Code of Federal Regulations, Part 697--
Atlantic Coastal Fisheries Cooperative Management. Federal lobster 
permits, however, are also held subject to conditions contained in acts 
other than the Atlantic Coastal Act and regulatory parts other than 
part 697. Although there are clear links in part 697 to these other 
conditions, the pathway could be stated more plainly. For example, 
lobster permit conditions are stated in and through the regulation at 
50 CFR 697.4(b) - Vessel Permits and Trap Tags: Conditions. According 
to Sec.  697.4(b), a Federal lobster permit is held conditionally, 
subject to the permit holder abiding by all state and local laws, as 
well as ''... the requirements of this part,'' which itself is 
regulatory parlance for ``subject to the requirements of Title 50 of 
the Code of Federal Regulations, Part 697--Atlantic Coastal Fisheries 
Cooperative Management. Included in ``this part'' (i.e., part 697) is 
Sec.  697.3 - Relation to Other Federal and State Laws. Within Section 
Sec.  697.3 is reference to and incorporation of Sec. Sec.  307 through 
311 of the Magnuson-Stevens Act, which generally relate to enforcement. 
Also within Sec.  697.3 is a statement incorporating by reference 50 
CFR 600.705-Relation to Other Laws, which sets forth other pertinent 
Federal laws that Federal lobster permit holders must abide by, 
including those regulations in Part 229 - Authorization For Commercial 
Fisheries Under the Marine Mammal Protection Act of 1972. Still 
further, within part 229 are lobster restrictions pertaining to gear, 
time and area that are designed to benefit marine mammals. Thus, gear, 
time and area restrictions specified within part 229 are conditions of 
a Federal lobster permit held under Sec.  697.4(b), although it 
requires multiple steps to make the connection and could be written in 
more direct fashion.
    This proposed Federal action would clarify the existing regulations 
to more directly reference lobster permit conditions that exist outside 
of part 697. The agency would amend Sec.  697.4(b)-Conditions to 
include a direct statement that lobster permit holders are subject to 
the laws and regulations administered by NOAA, including the Endangered 
Species Act, the Marine Mammal Protection Act and the gear, time and 
area restrictions thereunder, as well as the enforcement provisions of 
the Magnuson Stevens Act. The agency would also amend Section 697.7-
Prohibitions to track the newly added text in Section 697.4(b)-
Conditions.

Prohibit the Hauling or Possession of Another's Gear

    Current Federal regulations at 50 CFR 697.7(c)(1)(viii) generally 
prohibit permit holders from possessing or hauling improperly 
identified lobster trap gear. According to Federal regulations at 50 
CFR 697.21, lobster trap gear is improperly identified if the trap is 
not properly tagged to identify the vessel possessing or hauling it. To 
put it more directly, which is what this proposed Federal action seeks 
to do, a vessel may only possess or haul its own gear and not gear 
tagged to another. Other lobster regulations also address this gear 
possession/hauling prohibition but again do so in similarly circuitous, 
even if clear, fashion. For example, 50 CFR 697.7(1)(c)(vii) prohibits 
hauling and possession of traps above a permit holder's trap limit, and 
50 CFR 697.7(c)(xii) prohibits possession of a lobster trap tag issued 
to another vessel. Accordingly, hauling and possession of another 
vessel's lobster gear is presently prohibited but stating that 
prohibition more directly might reduce the perception of confusion on 
the issue. This Federal action would clarify the existing regulations 
to more directly state the present prohibition against the hauling and 
possession of another's lobster trap gear.

Exempt Gear Retrieval from Exempted Fishing Regulations

    Federal lobster regulations, specified at 50 CFR 697.22 - Exempted 
fishing, allow the Regional Administrator to exempt any person or 
vessel from Federal lobster regulations for the conduct of exempted 
fishing beneficial to the management of the American lobster, weakfish, 
Atlantic striped bass, Atlantic sturgeon, or horseshoe crab resources 
or fisheries, pursuant to the provisions of Sec.  600.745. However, 
since administrative compliance the exempted fishing procedures may 
require up to sixty days to complete, a narrow interpretation of the 
exempted fishing regulations could significantly delay the ability of a 
Federal permit holder to retrieve lobster trap gear if a Federal vessel 
is inoperable or mechanically-impaired.
    NMFS proposes a modification to 50 CFR 697.22 to allow the Regional 
Administrator for the Northeast Region, or the Director of the Office 
of Sustainable Fisheries, as appropriate, to authorize a substitute 
vessel to haul ashore the lobster trap gear of an inoperable or 
mechanically-impaired federally permitted lobster vessel without having 
to engage in the exempted fishing process outlined at 50 CFR 600.745 - 
Exempted fishing. This revision would allow NMFS to more expeditiously 
address pressing needs than is currently provided in the regulations.

Corrections

    In addition to the proposed measures described here, the following 
change is proposed to correct an inaccurate reference in the 
regulations. NMFS proposes a modification to Sec.  697.21 - Gear 
identification and marking, escape vent, maximum trap size, and ghost 
panel requirements. Specifically, Sec.  697.21(f) references 
enforcement action and seizure and disposition

[[Page 52354]]

authority by reference to ``part 219 of this title''. Part 219 of this 
title has been superceded, and the authority for enforcement action now 
resides at 15 CFR 904. NMFS proposes Sec.  697.21(f) be revised to 
reference the correct authority to enforce seizure and disposition as 
follows: Enforcement action. Unidentified, unmarked, unvented, 
improperly vented American lobster traps, or, beginning May 1, 2000, 
any untagged American lobster traps, or any lobster traps subject to 
the requirements and specifications of Sec.  697.21, which fail to meet 
such requirements and specifications may be seized and disposed of in 
accordance with the provisions of 15 CFR 904.

Management Actions Considered but Rejected At this Time

    NMFS is not proposing to adopt certain management actions 
recommended by the Commission for Federal lobster permit holders at 
this time, including: implementation of a limited entry and trap 
transferability program for the Outer Cape LCMA; a mandatory 
requirement to elect LCMA 3 if qualified; a mandatory vessel logbook 
reporting requirement; and, imposition of restrictions on vessel 
upgrades. These topics are discussed in greater detail below.

Outer Cape Limited Entry / Trap Transferability

    In Addendum III to the ISFMP, the Commission proposed limiting 
fishing access to the Outer Cape LCMA, allocating traps to qualifiers 
and then reducing the numbers allocated, and finally allowing traps to 
be transferred among those individuals who qualify for access. Many of 
the details necessary to implement the plan measures by diverse 
regulatory agencies may allow for latitude in interpretation. The 
majority of lobstermen fishing in the Outer Cape LCMA reside in 
Massachusetts, the Outer Cape LCMA is the only LCMA in which a single 
state (Massachusetts) does not share its nearshore jurisdiction with 
any other state. The Massachusetts Division of Marine Fisheries held 
multiple public hearings on effort control proposals and presented 
alternatives for Massachusetts license holders electing to fish in 
LCMAs 1 and 2, in addition to the Outer Cape LCMA. Ultimately, 
Massachusetts submitted and received Commission concurrence to 
implement a conservation equivalent effort control program for the 
state waters of the Outer Cape LCMA.
    Central to the Outer Cape LCMA plan is the transferability of 
allocated traps. Trap transferability relates to fishers being 
allocated a specific number of traps, but then being able to transfer 
and reapportion that allocation among themselves. Trap transferability 
is born out of the concept of Individual Fishing Quotas and would be 
categorized as a Dedicated Access Program as the U. S. Commission on 
Ocean Policy has recently defined the term in its report to Congress. 
The U.S. Commission on Ocean Policy's report identified the potential 
value of Dedicated Access Programs, but acknowledged that many issues 
still needed resolution. The Ocean Policy Commission recommended 
development of national guidelines for dedicated access privileges that 
allow for regional flexibility in implementation'' and further 
identified issues that such guidelines should address.
    The Outer Cape LCMA plan does not address many of the Dedicated 
Access Program issues identified by the U.S. Commission on Ocean Policy 
for at least one obvious reason namely, that the LCMA plan predates the 
Ocean Policy Commission's report by over two years. Nevertheless, the 
Commission did subsequently approve a more detailed Dedicated Access or 
Trap Transferability Program for LCMA 3 in Addenda IV and V. LCMA 3 is 
further along in the potential Dedicated Access Program process by 
virtue of already limiting access and establishing maximum trap 
allocations in Addendum I, for which compatible Federal regulations 
were promulgated in March 2003 (68 FR 14902). Additionally, Addendum IV 
included effort control measures for LCMA 2, including a potential 
Dedicated Access Program. Following approval of Addendum IV, the 
Commission established a Trap Transferability Subcommittee in 2004 to 
bring the involved regulatory agencies together to establish an 
effective multi-jurisdictional implementation protocol and to help 
resolve transferability coordination issues. The work of the sub-
committee is ongoing, but at present, no consensus has been reached on 
how to address Dedicated Access (Trap Transferability) Program issues 
nor have any final recommendations been made to the Commission's 
Lobster Board.
    After an initial review, the Trap Transferability Subcommittee 
concluded that key components of the Addendum IV effort control plan 
for LCMA 2 prevented its implementation by all regulatory agencies. In 
May 2004, the subcommittee recommended to the Lobster Board that the 
LCMA 2 effort control measures be delayed until all regulatory agencies 
are able to implement the effort control measures specified in Addendum 
IV. After further analysis of the impacts of the effort control 
measures, the subcommittee concluded the measures, as specified in 
Addendum IV, would not effectively achieve the objectives to cap 
fishing effort in LCMA 2. Therefore, in February 2005, the Lobster 
Board approved Addendum VI which retracted the LCMA 2 effort control 
plan contained in Addendum IV. Discussions within the LCMA 2 industry 
participants are ongoing at this time to develop a modified effort 
control plan for LCMA 2 to more effectively cap effort at or near 
current levels.
    Accordingly, NMFS is presented with the following: an Outer Cape 
LCMA plan that is lacking, albeit understandably, in detail relative to 
the analysis on some issues on Dedicated Access Programs; work by the 
Commission's Lobster Board Transferability Subcommittee for which there 
is as yet no uniform Commission policy; and finally, more detailed (and 
subsequently developed) LCMA 2 and 3 Dedicated Access Programs that 
require analyses along with the Outer Cape LCMA Dedicated Access 
Program. As a result, NMFS announced its intention to act upon the 
Commission's recommendations for fishing effort control programs for 
LCMAs 2 and 3, and the Outer Cape, and the potential for similar 
programs in other LCMAs in a Federal Register document dated May 10, 
2005 (70 FR 24495).

LCMA 3 ``Choose and Use''

    The Commission in Addendum III set forth a management measure 
specific to LCMA 3 entitled ``Choose and Use.'' Under current Federal 
lobster regulations, permit holders have considerable freedom of choice 
in designating fishing areas when they renew their permit each year. 
Although a person cannot choose LCMAs 3, 4, or 5 without having first 
qualified into those areas, presently most of the LCMAs are open access 
to any person with a Federal lobster permit, subject to more 
restrictive state regulations. However, there are no LCMAs that a 
permit holder must choose when renewing a Federal lobster permit. The 
Commission's recommended Choose and Use plan, however, would require 
changes in the present Federal regulations.
    Choose and Use would obligate LCMA 3 permit holders to designate 
(i.e., ``choose'') LCMA 3 on their Federal permits when renewing 
Federal permits each year. To the extent a qualified permit holder did 
not choose LCMA 3, then that permit holder would be barred from 
designating LCMA 3 on his or her

[[Page 52355]]

permit in future years, although the permit would still retain its LCMA 
3 qualification and if sold, the subsequent owner would then be able 
restart the LCMA 3 Choose and Use process. As with all Federal permit 
holders, those fishers designating multiple LCMAs on their permit must 
abide by the most restrictive regulations among the LCMAs.
    The juxtaposition of the Federal ``Most Restrictive'' regulation 
and the proposed Choose and Use plan could present a significant 
conundrum for some lobster fishers. For example, permit holders who 
fish a limited number of traps seasonally in LCMA 3 but who fish 
predominantly in other LCMAs may have qualified for access to LCMA 3 
with a modest trap allocation. Such a permit holder, however, might not 
seek to designate LCMA 3 on his or her permit lest they be bound to 
fish the more restrictive trap cap allocated to LCMA 3. Yet if that 
person did not choose to designate LCMA 3 on the permit, then the 
Choose and Use plan would preclude their designation of LCMA 3 at any 
time in the future.
    The Commission sought to resolve this dilemma by approving a 
measure in Addendum IV that would waive application of the Most 
Restrictive rule insofar as it related to the number of lobster traps 
allocated below a maximum cap. Accordingly, NMFS has determined it 
prudent to reserve analysis and decision on the proposed LCMA 3 Choose 
and Use plan and to consider it contemporaneously with the Most 
Restrictive rule waiver for trap allocations that has been approved and 
recommended in Addendum IV. Thus, this measure will not be considered 
at this time, but, as noted in a Federal Register document dated May 
10, 2005 (70 FR 24495), will be analyzed in future rulemaking.

Mandatory Reporting

    Mandatory reporting relates to the requirement of fishers to report 
catch data to the government. Presently, all Federal Northeast 
Multispecies permit holders must report their entire catch to the 
Federal Government, including species covered under other permits, such 
as a Federal lobster permit. In Addendum II, the Commission called for 
all Federal LCMA 3 permit holders to report their catch to the Federal 
Government in a manner similar to that required of Northeast 
Multispecies permit holders (and several other Federal limited access 
permits). The Commission recommended that the Federal Government 
implement regulations consistent therewith. The current mandatory 
reporting requirements for Federal limited access permit holders were 
developed to accommodate traditional finfish harvest from mobile gear 
vessels and is burdensome for traditional trap gear fishermen. At this 
time, several state and Federal pilot programs are underway, or have 
been completed with the intent to develop a reporting platform tailored 
for lobstermen and potentially to report their catch data from multiple 
fishing trips at one time rather than on a daily trip by trip basis. 
This measure will be considered and analyzed at such time that a 
recommended reporting platform becomes available for implementation.

Vessel Upgrade Limits

    The Commission in Addendum III set forth management measures 
specific to LCMA 5 that would limit a permit holder's ability to 
upgrade his or her vessel. Specifically, Addendum III limits a permit 
holder's ability to upgrade an LCMA 5 vessel to a 10-percent increase 
in length and a 20-percent increase in horsepower. Addendum III 
provided no further detail on the measure. The Commission ultimately 
included the LCMA 5 vessel upgrade limitations as a recommended 
management measure to the Federal Government. However, the vessel 
upgrade limitations have not been implemented by state jurisdictions. 
Specifically, New Jersey requested, and the Commission Lobster Board 
approved, an exemption for New Jersey state license holders from this 
LCMA 5 requirement. Also, state lobster license holders residing in the 
Commission de minimis states adjacent to and south of New Jersey, 
including Maryland, Delaware, Virginia, and North Carolina are exempt 
from the ISFMP requirement to implement the vessel upgrade restriction. 
In Technical Addendum 1, dated July 18, 2002, the Commission withdrew 
section 2.1.1.3 Vessel Upgrade Limit from the requirements for LCMA 5. 
The LCMA 2 effort control plan in Addendum IV (that was withdrawn in 
Addendum VI), included measures that would limit a permit holder's 
ability to upgrade his or her vessel. Addendum IV had proposed limits 
to a permit holder's ability to upgrade an LCMA 2 vessel to a 15 
percent increase in length. Addendum IV provides no further detail on 
the measure.
    NMFS has previously considered vessel upgrade restrictions in the 
lobster fishery. Most recently, in its rulemaking based upon Addendum 
I, NMFS considered but rejected vessel upgrade limitations in LCMA 3. 
At that time, NMFS concluded that the upgrade restrictions would be 
unnecessarily costly and burdensome to fishers because existing 
baseline vessel characteristics on many vessels are likely 
undocumented. The analysis further stated that vessel upgrade 
limitations may pose safely constraints and offered no obvious 
conservation benefits to the resource. In addition, the implementation 
of trap limits, either fixed or based on a historical level of 
participation, has the potential to effectively limit fishing effort in 
the offshore lobster fishery without an additional requirement for 
vessel upgrade restrictions. The analysis concluded that there were no 
obvious benefits to vessel upgrade limitations.
    NMFS' reasoning in its Addendum I rulemaking analysis is equally 
relevant to this present rulemaking. Lobster trap vessels are generally 
small e.g., the average length is 39 ft (11.9 m) -- and as such, the 
specifications of many vessels are not documented with the U.S. Coast 
Guard. Therefore, information on length and horsepower may not be 
readily available, thereby necessitating a marine survey to establish 
legal vessel specifications, which would add a financial burden on 
vessel owners. The potential cost to hire a marine surveyor or naval 
architect to verify existing baseline vessel characteristics can range 
from $150 to $600, with associated costs increasing with vessel size, 
and would result in added delays for vessel replacement and transfers, 
if implemented. NMFS does not consider the burden justified given that 
vessel upgrade limitations offer no obvious conservation benefit to the 
resource, and certainly the Commission's recommendation indicates no 
nexus between the restriction and the egg production measures that 
constitute Addenda II and III or a connection to overall Fishery 
Management Plan goals. Accordingly, NMFS has determined it prudent to 
reject vessel upgrade restrictions at this time.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism 
implications as defined in E.O. 13132.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and

[[Page 52356]]

the legal basis for this action are contained in the SUMMARY section of 
the preamble and in the preamble to this proposed rule.
    As described above, the proposed action would: revise the Egg Per 
Recruit overfishing target timeline from the year 2005 to the year 
2008; increase the current Federal lobster minimum legal carapace size 
limit from 3 1/4 inches (8.26 cm) to 3 3/8 inches (8.57 cm) in LCMAs 2, 
3, 4, 5, and the Outer Cape; increase the current Federal rectangular 
lobster trap escape vent size from 1 15/16 inches x 5 3/4 inches (4.92 
cm x 14.61 cm) to 2 inches x 5 3/4 inches (5.08 cm x 14.61 cm) in LCMAs 
2, 3, 4, 5, and the Outer Cape; increase the current Federal circular 
lobster trap escape vent size from 2 7/16 inches (6.19 cm) to 2 5/8 
inches (6.67 cm) in LCMAs 2, 3, 4, 5, and the Outer Cape; implement a 
new 5 1/4 inch (13.34 cm) maximum legal carapace size on possession of 
female lobsters in LCMA 4, and a new 5 1/2 inch (13.97 cm) maximum 
legal carapace size on possession of female lobsters in LCMA 5; require 
mandatory V-notching of female lobsters carrying eggs in LCMA 1 and in 
LCMA 3 above the 42[deg] 30' North latitude line; require a zero 
tolerance definition of V-notched female lobsters in LCMA 1; and 
implement a new 5-mile (8-km) overlap boundary area between LCMAs 3 and 
5. These actions were recommended to the Federal government by the 
Commission to assure a unified consistent state-Federal approach to 
lobster management as required under the Atlantic Coastal Act.
    The proposed action was compared to the No Action alternative and 
three other non-selected alternatives. In this analysis, the baseline 
(the Modified No Action alternative) is the set of measures currently 
in place for state and Federal lobster permit holders throughout the 
range of the resource. All measures analyzed in the Modified No Action 
alternative are identical to those analyzed in the No Action 
alternative, except the Egg Per Recruit overfishing target timeline is 
revised from the year 2005 to the year 2008. As described in the draft 
EA completed for this action, the No Action alternative would retain 
December 31, 2005, as the operative deadline for the egg production 
schedule and restoration time line in each of the management areas. 
Accordingly, egg production in each management area would need to meet 
or exceed 10 percent of the egg production of an unfished population, 
which is the overfishing definition for American lobster, by a targeted 
deadline of December 31, 2005. The scheduled overfishing time line in 
the No Action alternative does not incorporate the most recent (year 
2000) stock assessment information. Since landings from the EEZ account 
for approximately 20 percent of all American lobster landed in U.S. 
waters, under the No Action alternative a complete ban on fishing for 
lobster in Federal waters might need to be considered to achieve the 
targets specified in the existing egg production schedule by the end of 
2005. Relative to the involved management issues and measures, the No 
Action alternative, unlike the Modified No Action alternative, might 
require a complete closure of Federal waters to fishing for, possession 
of, or landing of American lobster, and would not represent a realistic 
baseline comparison of state and Federal lobster management measures 
currently in place to those proposed in this action. The Modified No 
Action alternative does propose changing the deadline for the egg 
production schedule from 2005 to 2008, but proposes no additional 
changes to current regulations, thereby providing a realistic baseline 
comparison of current state and Federal lobster management measures to 
those proposed in this action. Therefore, the Modified No Action 
alternative was used as the baseline for comparison rather than the No 
Action alternative.

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

    The proposed action would potentially affect any vessel in the 
Northeast region that holds a Federal limited access lobster permit. 
During fishing year 2003, a total of 3,217 limited access lobster 
permits were issued to Northeast region permitted vessels. Based on the 
Small Business Administration's (SBA) size standard of $3.5 million in 
gross sales, all of these vessels would be considered small entities as 
the maximum earnings for any given vessel was less than half of this 
standard.
    While the number of permitted vessels represents the universe of 
vessels that may be affected, an assessment of impacts needs to 
distinguish between this universe and the number of vessels that are 
actually participating in the lobster fishery. Unfortunately the 
precise number of participating vessels is not known with certainty 
since lobster permit holders are not subject to mandatory reporting. 
Specifically, less than half of all vessels using trap gear (the 
primary gear used on the fishery) were subject to mandatory reporting. 
Based on 2003 dealer records, while 62 percent of these vessels subject 
to mandatory reporting reported landings, only 18 percent (361 vessels) 
reported landing lobster. Applying this proportion to the total number 
of permit holders would result in an estimate of 582 participating 
vessels. Alternatively, where it was possible to identify Federal 
permit holders, comparing the number of vessels eligible to purchase 
trap tags to the number of vessels that actually did purchase trap tags 
in 2003 indicates that about 46 percent of Federal permit holders using 
trap gear participate in the EEZ fishery. Applying this number to the 
total number or permit holders results in an estimate of almost 1,500 
participating vessels; an estimate that seems more likely than that 
based on activity reports but is still subject to uncertainty.

Economic Impacts of the Proposed Action

    The proposed action would implement changes to the rebuilding 
target, minimum and maximum sizes, escape vent size, and v-notch 
requirements in certain LCMA's. The proposed action would implement a 3 
3/8 inch (8.57 cm) minimum legal carapace size in LCMA 2, 3, 4, 5 and 
the Outer Cape; an escape vent increase to 2 inches by 5 3/4 inches 
(5.08 cm x 14.61 cm) for rectangular vents and to 2 5/8 inches (6.67 
cm) for circular vents. The preferred alternative would also implement 
mandatory v-notch in LCMA 1 and in LCMA 3 above 42[deg] 30' North 
latitude, a zero tolerance v-notch definition in LCMA 1, as well as a 
maximum legal carapace size of 5 1/4 inches (13.34 cm) in LCMA 4 and 5 
1/2 inches (13.97 cm) in LCMA 5. Based on the analysis of these 
proposed measures, approximately 10 percent of Federal lobster permit 
holders (approximately 251 vessels) could be affected by these changes. 
That is, due to the Federal requirement to abide by the more 
restrictive state or Federal measures, about 90 percent of Federal 
lobster vessels would already be required to fish in a manner 
consistent with the proposed measures due to action already taken by 
the states. Further, the economic analysis also suggests that the 
majority of the 251 affected vessels - i.e., the remaining 10 percent - 
likely fish in areas unaffected by the proposed Federal action. That 
is, the majority of vessels potentially affected by the minimum legal 
carapace size change are likely to fish predominantly in LCMA 1 where 
neither minimum size nor escape vent size changes would be made. 
Similarly, the majority of vessels fishing in LCMA 3 would not be 
affected by the change

[[Page 52357]]

to a mandatory v-notch regulation because they do not fish in the 
affected area (i.e. they fish south of 42[deg] 30' North latitude). In 
effect, the proposed measures would have negligible impacts on a large 
majority of Federal lobster vessels since the proposed action would not 
impose any added economic burden beyond what states have already 
implemented or would have no impact on existing fishing practices.
    For those vessels that would be affected, an estimate of realized 
impact cannot be quantified. At an estimate $1.40 in materials in 
labor, replacement of escape vents for a vessel with the maximum of 800 
traps (most vessels fish less than 800 traps) would be $1,000. The 
foregone revenue associated with a change in the minimum legal gauge 
size will depend on the relative proportion of lobsters between 3 1/4 
inches (8.26 cm) and 3 3/8 inches (8.57 cm) in an individual's catch. 
In the absence of reliable data on the size composition of the trap or 
non-trap commercial catch, this proportion cannot be reasonably 
estimated. Similarly, the impact of a change in the maximum legal gauge 
size in LCMA 4 and 5 is not known although the proportion of lobster at 
or above these sizes is small so the impact on landings to an 
individual lobster business is likely to be very low. Last, the 
foregone revenue associated with a change in v-notch requirements will 
depend on the proportion of berried female lobsters and lobsters with a 
v-shaped notch in an individual's catch. As noted previously, this 
impact would only affect a vessel fishing above 42[deg] 30' North 
latitude in LCMA 3. Any such vessel would be able to move traps below 
this line and would not be subject to the mandatory v-notch 
requirement. In general, the overall impact on non-trap vessels is 
likely to be less than that for trap vessels since lobster is 
predominantly a bycatch in non-trap fisheries. On average, lobster 
represented less than 4 percent of total fishing income for non-trap 
vessels in calendar year 2003.
    The previous discussion suggests that while the impact on a 
particular small Federal lobster fishing entity cannot be readily 
determined, this impact is likely to affect only a portion of total 
fishing income. The majority of lobster vessels would be largely 
unaffected under the proposed measures. Therefore, while the proposed 
measures could have an impact on some number of small entities, the 
proposed measures would not affect a substantial number of small 
entities.

Economic Impacts of Alternatives to the Proposed Measures

    In addition to the proposed measures, four other alternatives were 
considered. Among these, Alternative 2, the Modified No Action 
alternative, and Alternative 3, the Commission alternative, may have 
less economic impact on small entities. Alternative 1, the No Action 
alternative, and Alternative 5, the Environmental alternative, would 
have much greater economic impact on small lobster businesses. 
Alternative 2 would implement the Commission rebuilding schedule but 
would make no changes to existing Federal management regulations. That 
is, the minimum gauge and escape vent sizes would remain unchanged; the 
v-notch regulations would not be implemented; there would be no maximum 
gauge in LCMAs 4 and 5, and no overlap boundary between LCMAs 3 and 5. 
As noted above, at least 90 percent of Federal lobster vessels would 
still be required to fish under more restrictive measures due to 
actions already taken by the states, but the remaining 10 percent of 
vessels would be able to fish under the less restrictive Federal 
regulations. As a practical matter, even vessels that would be able to 
fish under less restrictive measures are unlikely to do so since 
current fishing practices are likely to be consistent with requirements 
appropriate to the area in which they fish. This means that for the 
vast majority of trap and non-trap vessels, the realized impact of 
Alternative 2 is likely to be no different than that of the proposed 
measures. Nevertheless, under Alternative 2 vessels from two different 
states could fish under different conditions even though they may set 
traps or otherwise fish for lobster in the same area. Such a 
discrepancy creates regulatory inequities, confusions related to 
enforcement of regulations, potential equity issues, and is counter to 
the spirit and intent of the Atlantic Coastal Act. For these reasons, 
and the fact that the anticipated impacts between Alternative 2 and the 
measures identified in this proposed rule would be virtually 
indistinguishable, Alternative 2 was rejected.
    Alternative 3 would implement the Commission recommended 
regulations in certain LCMA's but would do so according to the original 
Addendum II and III schedule. In effect, this would involve a phase-in 
of the minimum gauge size increase measure over a 4-year period. In 
fact, had complementary Federal measures been implemented at the time 
these Addenda were approved by the Commission, present Federal 
regulations would be consistent with current State regulations. 
Alternative 3 would perpetuate the current problem of having a gap 
between state and Federal regulations for another 4 years. Further, as 
a practical reality, the Commission is likely to take additional action 
(Addendum IV through VI have already been approved) within this time 
frame. This means that other complementary regulations would end up 
being promulgated or superseding those of Alternative 3 before they 
have been fully implemented. In terms of economic impacts on small 
entities, Alternative 3 would likely have less impact on small fishing 
businesses than the proposed measures since small fishing businesses 
would be allowed to phase-in changes to their fishing practices over 
time. However, as noted previously, action taken by States has brought 
the vast majority of vessels under the more restrictive measures 
contemplated by Alternative 3 so the realized difference between the 
measures in this proposed rule and Alternative 3 would be negligible. 
For this reason as well as the practical problems of a phased in 
implementation of the Commission recommendations under Alternative 3, 
this alternative was rejected.
    Alternative 1 would require a complete closure of the EEZ to 
lobster fishing. The key element to Alternative 1 would be that no 
change would be made to the current rebuilding schedule and time frame. 
Specifically, this time frame would require that the rebuilding target 
be accomplished by the end of calendar year 2005. The maximum that the 
NMFS could do to achieve this biological objective would be a closure 
of the EEZ to all lobster fishing. Based on NMFS dealer data, which 
include state summary data, the EEZ has been estimated to account for 
about 20-percent of all domestic landings of American Lobster. Total 
landings were 71.7 million pounds (32,523 mt) valued at $284.8 million 
in calendar year 2003. This means that the EEZ would have accounted for 
approximately 14.3 million pounds (6,486 mt) valued at nearly $57 
million. This value may be underestimated since EEZ landings tends to 
be comprised of larger, more valuable lobsters. The removal of 20 
percent of the domestic lobster supply at a time when landings from 
Long Island Sound, Southern New England and the Mid-Atlantic have been 
declining would cause significant disruptions in lobster markets from 
wholesalers to final consumers. At a minimum, lobster prices may be 
expected to increase, which could result

[[Page 52358]]

in reduced profit margins (i.e. only a portion of a price increase is 
likely to be able to be passed on to consumers) for lobster 
distributors and retailers (restaurants, fish markets, grocery stores, 
etc.) and a loss in consumers surplus. This supply reduction may also 
make U.S. lobsters less price competitive in international markets for 
U.S. exporters. These impacts could affect approximately $57 million in 
lobster revenues. The estimated average loss in fishing revenues was 
about $27,000 per vessel, but could be as high or much higher than 
$80,000 per vessel. In addition, the Atlantic Coastal Act directs the 
Federal Government to support the management efforts of the Commission 
and, to the extent the Federal Government seeks to regulate a 
Commission species, those Federal regulations must be compatible with 
the Commission plan. This Alternative 1 is not compatible with the 
Commission plan because it would require the closure of the EEZ to 
lobster fishing, which was not recommended by the Commission. 
Therefore, Alternative 1 was rejected because it may led to a large 
economic impact to lobster fishermen, and because it would not support 
the Commission's management efforts, nor result in compatible Federal 
regulations, as required under the Atlantic Coastal Act.
    Alternative 5 would provide the highest assurance that the 
biological objectives for the lobster resource are met by implementing 
the most restrictive of the management measures proposed in this action 
throughout the range of the resource. Such action would implement 
mandatory v-notch, zero tolerance, a 3 3/8 inches (8.57 cm) minimum 
legal gauge size, a larger escape vent size, and maximum legal gauge 
size in all LCMA's. The impacts of these measures are difficult to 
quantitatively assess. However, Alternative 5 would have at least some 
impact on 95 percent of all Federal lobster permit holders. At least in 
the short term, these impacts would be likely to be greatest on vessels 
fishing in LCMA 1 as a substantial portion of the lobster catch is at 
the current 3 1/4 inch (8.26 cm) minimum legal carapace size limit. 
Over time, these losses would be recovered as lobsters molt into the 3 
3/8 inch (8.57 cm) legal carapace size class. Nevertheless, the 
immediate impact would likely be significant for a substantial number 
of small lobster fishing entities. Alternative 5 was rejected because 
of its impact on small lobster business entities. In addition, it would 
be inconsistent with the spirit and intent of the Atlantic Coastal Act 
since it would neither support the Commission's management efforts, nor 
result in compatible Federal regulations.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: August 29, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR chapter VI, part 
697, is proposed to be amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

    Authority: 16 U.S.C. 5101 et seq.
    2. In Sec.  697.2, the definition of ``V-shaped notch'' is removed. 
The definition of ``Standard v-shaped notch'' and ``zero tolerance v-
shaped notch'' are added in alphabetical order to read as follows:


Sec.  697.2  Definitions.

* * * * *
    Standard V-shaped notch means a straight-sided triangular cut, 
without setal hairs, at least 1/4 inch (0.64 cm) in depth and tapering 
to a point.
* * * * *
    Zero tolerance V-shaped notch means a v-shaped notch of any size, 
with or without straight sides, with or without setal hairs.
    3. In Sec.  697.3, paragraph (b) is revised to read as follows:


Sec.  697.3  Relation to other Federal and state laws.

* * * * *
    (b) Federal limited access American lobster permit holders are 
required to comply with all regulations and statues administered by the 
National Oceanic and Atmospheric Administration (NOAA), including, but 
not limited to the regulations in this part issued pursuant to the 
ACFCMA, the regulations at part 229 issued pursuant to the Marine 
Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) , and 
the regulations at part 648 issued pursuant to the Magnuson-Stevens 
Act. The relation of this part to other laws is further set forth in 
Sec.  600.705 of this chapter.
* * * * *
    4. In Sec.  697.4, paragraph (a)(7)(iv) is added and paragraph (b) 
is revised to read as follows:


Sec.  697.4  Vessel permits and trap tags.

* * * * *
    (a) * * *
    (7) * * *
    (iv) Once a vessel has been issued a lobster management area 
designation certificate or limited access American lobster permit 
specifying the lobster EEZ management areas in which the vessel may 
fish, no changes to the EEZ management areas specified may be made for 
such vessel for the remainder of the fishing year. There are two 
exceptions to this re-designation restriction:
    (A) Vessels that have been bought, transferred, or become a 
replacement vessel for another qualified vessel may request re-
designation of the EEZ management areas; and
    (B) All vessels will have one opportunity to request a correction 
in permit category, if such request is made in writing to the Regional 
Administrator within 45 days of the effective date of the vessel's 
permit.
* * * * *
    (b) Condition. Vessel owners who apply for a Federal limited access 
American lobster permit under this section must agree, as a condition 
of the permit, that the vessel and vessel's fishing, catch, and 
pertinent gear (without regard to whether such fishing occurs in the 
EEZ or landward of the EEZ, and without regard to where such fish or 
gear are possessed, taken, or landed), are subject to all requirements 
of this part, as well as gear, time, and area restrictions issued or 
set forth in other parts, including, but not limited to, part 229 and 
part 648. The vessel and all such fishing, catch, and gear shall remain 
subject to all applicable state or local requirements. If a requirement 
of this part and a management measure required by state or local law 
differ, any vessel owner permitted to fish in the EEZ must comply with 
the more restrictive requirement.
    5. In Sec.  697.7, paragraphs (c)(1)(i) and (c)(1)(v) are revised 
and paragraphs (c)(1)(xxvii) through (c)(1)(xxix) are added to read as 
follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (i) Retain on board, land, or possess at or after landing, whole 
American lobsters that fail to meet the minimum carapace length 
standard specified in Sec.  697.20(a). All American lobsters will be 
subject to inspection and enforcement action, up to and including the 
time when a dealer receives or possesses American lobsters for a 
commercial purpose.
* * * * *

[[Page 52359]]

    (v) V-notch. (A) Retain on board, land, or possess any zero 
tolerance v-notched female American lobster when fishing in or electing 
to fish in EEZ Nearshore Lobster Management Area 1. (B) Retain on 
board, land, or possess any standard v-notched female American lobster 
when fishing in or electing to fish in the EEZ Nearshore Management 
Area 2, 4, 5, 6, and the Outer Cape Lobster Management Area or the EEZ 
Offshore Management Area 3.
* * * * *
    (c) * * *
    (1) * * *
    (xxvii) Possess, deploy, fish with, haul, harvest lobster from, or 
carry aboard a vessel trap gear issued to another vessel.
    (xxviii) Fail to comply with any gear, time, or area restriction in 
this part or, as is explained in Sec.  697.3 and Sec.  697.4(b), fail 
to comply with any gear, time, or area regulation set forth in any 
other regulatory part, including part 229 and part 648.
    (xxix) Retain on board, land, or possess at or after landing, whole 
American lobsters that exceed the maximum carapace length standard 
specified in Sec.  697.20(b). All American lobsters will be subject to 
inspection and enforcement action, up to and including the time when a 
dealer receives or possesses American lobsters for a commercial 
purpose.
* * * * *
    6. In Sec.  697.18, paragraph (f) is revised to read as follows:


Sec.  697.18  Lobster management areas.

* * * * *
    (f) EEZ Nearshore Management Area 5. EEZ Nearshore Management Area 
5 is defined by the area, including state and Federal waters that are 
near-shore in the southern Mid-Atlantic, bounded by straight lines 
connecting the following points, in the order stated:

------------------------------------------------------------------------
                  Point                      Latitude        Longitude
------------------------------------------------------------------------
                  W                        39[deg]50' N.  74[deg] 09' W.
                  V                       39[deg] 50' N.  72[deg] 55' W.
                  X                         38[deg]38.2'   73[deg] 33.8'
                                                      N.              W.
                  Y                         38[deg]10.4'  73[deg] 49' W.
                                                      N.
                  Z                       37[deg]10.6'N.   74[deg]38' W.
                  ZA                        35[deg]31.9'   74[deg] 45.5'
                                                      N.              W.
                  ZB                       35[deg] 14.5'   75[deg] 19.3'
                                                      N.              W.
------------------------------------------------------------------------
From Point ``ZB'' along the coasts of North Carolina, Virginia,
  Maryland, Delaware, New Jersey back to Point ``W''.

* * * * *
    7. Section 697.20 is revised to read as follows:


Sec.  697.20  Size, harvesting and landing requirements.

    (a) Minimum Carapace length. (1) The minimum carapace length for 
all American lobsters harvested in or from the EEZ Nearshore Management 
Area 1or the EEZ Nearshore Management Area 6 is 3 1/4 inches (8.26 cm).
    (2) The minimum carapace length for all American lobsters landed, 
harvested, or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in the Nearshore 
Management Area 1 or the EEZ Nearshore Management Area 6 is 3 1/4 
inches (8.26 cm).
    (3) The minimum carapace length for all American lobsters harvested 
in or from the Nearshore Management Area 2, 4, 5, and the Outer Cape 
Lobster Management Area or the Offshore Management Area 3 is 3 3/8 
inches (8.57 cm).
    (4) The minimum carapace length for all American lobsters landed, 
harvested, or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in the EEZ 
Nearshore Management Area 2, 4, 5, and the Outer Cape Lobster 
Management Area or the EEZ Offshore Management Area 3 is 3 3/8 inches 
(8.57 cm).
    (5) No person may ship, transport, offer for sale, sell, or 
purchase, in interstate or foreign commerce, any whole live American 
lobster that is smaller than the minimum size specified in paragraph 
(a) in this section.
    (b) Maximum carapace length. (1) The maximum carapace length for 
all American lobster harvested in or from the EEZ Nearshore Management 
Area 1 is 5 inches (12.7 cm).
    (2) The maximum carapace length for all American lobster landed, 
harvested, or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in the EEZ 
Nearshore Management Area 1 is 5 inches (12.7 cm).
    (3) The maximum carapace length for all American lobster harvested 
in or from the EEZ Nearshore Management Area 4 is 5 1/4 inches (13.34 
cm).
    (4) The maximum carapace length for all American lobster landed, 
harvested, or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in the EEZ 
Nearshore Management Area 4 is 5 1/4 inches (13.34 cm).
    (5) The maximum carapace length for all American lobster harvested 
in or from the EEZ Nearshore Management Area 5 is 5 1/2 inches (13.97 
cm).
    (6) The maximum carapace length for all American lobster landed, 
harvested, or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in the EEZ 
Nearshore Management Area 5 is 5 1/2 inches (13.97 cm).
    (c) Mutilation. (1) Subject to the rebuttable presumption in Sec.  
697.7(c)(3), no person may remove meat or any body appendage from any 
American lobster harvested in or from the EEZ before, or at the time of 
landing, or have in possession any American lobster part other than 
whole lobsters, up to the time when a dealer first receives or 
possesses American lobster.
    (2) Subject to the rebuttable presumption in Sec.  697.7(c)(3), no 
owner, operator or person aboard a vessel issued a Federal American 
lobster permit may remove meat or any body appendage from any American 
lobster before or at the time of landing, or have in possession any 
American lobster part other than whole lobsters, up to the time when a 
dealer first receives or possesses American lobster.
    (d) Berried females. (1) Any berried female harvested in or from 
the EEZ must be returned to the sea immediately. If any berried female 
is harvested in or from the EEZ Nearshore Management Area 1, or in or 
from the EEZ Offshore Management Area 3 above 42 30', it must be v-
notched before being returned to the sea immediately.
    (2) Any berried female harvested or possessed by a vessel issued a 
Federal limited access American lobster permit must be returned to the 
sea immediately. If any berried female is harvested in or from the EEZ 
Nearshore Management Area 1, or in or from the EEZ Offshore Management 
Area 3 above 42 30', it must be v-notched before being returned to the 
sea immediately.
    (3) No vessel, or owner, operator or person aboard a vessel issued 
a Federal limited access American lobster permit may possess any 
berried female.
    (4) No person may possess, ship, transport, offer for sale, sell, 
or purchase, in interstate or foreign commerce, any berried female as 
specified in paragraph (d) of this section.
    (e) Removal of eggs. (1) No person may remove, including, but not 
limited to, the forcible removal and removal by chemicals or other 
substances or liquids, extruded eggs attached to the abdominal 
appendages from any female American lobster.
    (2) No owner, operator or person aboard a vessel issued a Federal 
limited access American lobster permit may remove, including but not 
limited to, the forcible removal, and removal by chemicals or other 
substances or liquids, extruded eggs attached to the abdominal 
appendages from any female American lobster.

[[Page 52360]]

    (3) No person may possess, ship, transport, offer for sale, sell, 
or purchase, in interstate or foreign commerce, any whole live American 
lobster that bears evidence of the removal of extruded eggs from its 
abdominal appendages as specified in paragraph (e) of this section.
    (f) Spearing. (1) No person may spear any American lobster in the 
EEZ.
    (2) No person on a vessel issued a Federal lobster license may 
spear a lobster.
    (3) No person may harvest or possess any American lobster which has 
been speared in the EEZ.
    (4) No person on a vessel issued a Federal lobster license may 
harvest or possess any American lobster which has been speared.
    (5) No person may possess, ship, transport, offer for sale, sell, 
or purchase, in interstate or foreign commerce, any American lobster 
which has been speared.
    (g) V-notched females. (1) No person may possess any female lobster 
possessing a zero tolerance v-shaped notch harvested in or from the EEZ 
Nearshore Management Area 1.
    (2) No vessel, owner, or operator issued a Federal limited access 
American lobster permit fishing in or electing to fish in EEZ Nearshore 
Management Area 1 may land, harvest, or possess any female lobster 
possessing a zero tolerance v-shaped notch.
    (3) No person may possess any female lobster possessing a standard 
v-shaped notch harvested in or from the EEZ Nearshore Management Area 
2, 4, 5, 6, and the Outer Cape Lobster Management Area or the EEZ 
Offshore Management Area 3 may possess.
    (4) No vessel, owner, or operator issued a Federal limited access 
American lobster permit fishing in or electing to fish in EEZ Nearshore 
Management Area 2, 4, 5, 6, and the Outer Cape Lobster Management Area 
or the EEZ Offshore Management Area 3 may land, harvest, or possess any 
female lobster possessing a standard v-shaped notch.
    8. In Sec.  697.21, paragraphs (c) and (f) are revised to read as 
follows:


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

* * * * *
    (c) Escape vents. (1) All American lobster traps deployed or 
possessed in the EEZ Nearshore Management Area 1 or the EEZ Nearshore 
Management Area 6 or, deployed or possessed by a person on or from a 
vessel issued a Federal limited access American lobster permit fishing 
in or electing to fish in the EEZ Nearshore Management Area 1 or the 
EEZ Nearshore Management Area 6, must include either of the following 
escape vents in the parlor section of the trap, located in such a 
manner that it will not be blocked or obstructed by any portion of the 
trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
1 15/16 inches (4.92 cm) by 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 7/16 inches (6.19 cm) in diameter.
    (2) All American lobster traps deployed or possessed in the EEZ 
Nearshore Management Area 2, 4, 5, and the Outer Cape Lobster 
Management Area or the EEZ Offshore Management Area 3, or, deployed or 
possessed by a person on or from a vessel issued a Federal limited 
access American lobster permit fishing in or electing to fish in the 
EEZ Nearshore Management Area 2, 4, 5, and the Outer Cape Lobster 
Management Area or the EEZ Offshore Management Area 3, must include 
either of the following escape vents in the parlor section of the trap, 
located in such a manner that it will not be blocked or obstructed by 
any portion of the trap, associated gear, or the sea floor in normal 
use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 inches (5.08 cm) x 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 5/8 inches (6.67 cm) in diameter.
    (3) The Regional Administrator may, at the request of, or after 
consultation with, the Commission, approve and specify, through a 
technical amendment of this final rule, any other type of acceptable 
escape vent that the Regional Administrator finds to be consistent with 
paragraph (c) of this section.
* * * * *
    (f) Enforcement action. Unidentified, unmarked, unvented, 
improperly vented American lobster traps, or, beginning May 1, 2000, 
any untagged American lobster traps, or any lobster traps subject to 
the requirements and specifications of Sec.  697.21, which fail to meet 
such requirements and specifications may be seized and disposed of in 
accordance with the provisions of 15 CFR part 904.
* * * * *
    9. In Sec.  697.22, paragraph (c) is added as follows:


Sec.  697.22  Exempted fishing.

* * * * *
    (c) The Regional Administrator, or the Director of the Office of 
Sustainable Fisheries, as appropriate, may authorize a substitute 
vessel to haul ashore the lobster trap gear of an inoperable or 
mechanically-impaired federally permitted lobster vessel without having 
to engage in the exempted fishing process as specified in this section.
[FR Doc. 05-17557 Filed 9-1-05; 8:45 am]
BILLING CODE 3510-22-S


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