52346 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

Commission has heard from participants 

in the NVOCC industry that it would be 

useful if the exemption permitted NSAs 

to be jointly offered by unaffiliated 

NVOCCs. At its meeting of August 3, 

2005, the Commission determined that 

it would seek further comment on the 

issue. The Commission now seeks 

comment on the following specific 

questions: 

1. In what manner could two or more 

unaffiliated NVOCCs jointly offer NSAs? 

Would two or more NVOCCs use a 

single document to offer their services 

as carriers to other NVOCCs acting as 

shippers? Would two or more NVOCCs 

offer identical services or rates in 

separately-filed NSAs? Are there other 

possibilities? 

2. How would rates and defined 

service levels for such jointly offered 

NSAs be determined? 

3. Would unaffiliated NVOCCs jointly 

offering NSAs keep the terms of such 

NSAs confidential from nonparticipating NVOCCs? From other 

shippers (including NVOCCs)? 

4. How would such an exemption 

meet the statutory requirements of 

section 16 of the Shipping Act of 1984? 

Would such an exemption cause a 

substantial reduction in: 

• Competition among NVOCCs; 

• Competition between NVOCCS and 

vessel-operating common carriers 

(VOCCs); 

• Competition among beneficial cargo 

owners; and 

• Other competition? 

5. Would such an exemption cause 

detriment to commerce by any general 

or specific adverse economic impacts on 

the carriage of cargo in the U.S.-foreign 

trade or U.S. commerce generally? 

6. What might be the benefits or harm 

to beneficial cargo owners of jointlyoffered NSAs? 

7. Do any issues with regard to 

NVOCC financial responsibility arise 

stemming from jointly-offered NSAs? 

For example, should a joint bond or 

higher individual bond be required for 

NVOCCs that jointly offer NSAs? If so, 

how should the amount be determined? 

8. Would there likely be any specific 

benefits or harm to small NVOCCs if 

jointly offered NSAs were permitted? 

9. If jointly offered NSAs are allowed, 

should there be limits on the number (or 

combined market share) of the NVOCCs 

participating in a single joint NSA? If so, 

how should the relevant market be 

defined? Should the Commission or the 

parties determine the market share? 

Should NVOCCs be required to obtain 

Department of Justice business review 

letters prior to offering jointly offered 

NSAs? 

10. What would be the likely impact, 

if any, of joint NSAs on individual rates 

offered by the participating NVOCCs in 

the same trade? In other trades? 

11. Should the contract details which 

must be made publicly available 

(‘‘essential terms’’) be more extensive 

for jointly offered NSAs than for other 

NSAs? For example, should the 

Commission require that the identities 

of each of the NVOCC carrier parties to 

the jointly offered NSA be made public? 

12. Are there any additional 

procedures (e.g., registration, reporting, 

monitoring, measuring) that should be 

considered to ensure that each jointlyoffered NSA does not result in a 

substantial reduction in competition or 

detriment to commerce? 

13. Should the Commission require 

some type of notification to the VOCC 

carrying the cargo moving under a 

jointly offered NSA? If so, describe what 

form such notification should take and 

when it should be required. 

14. How would bills of lading be 

issued for cargo moving under a joint 

NSA? 

15. Please describe any other matters 

that may be relevant to the 

Commission’s consideration of this 

issue. 

In order best to facilitate the 

Commission’s consideration of the 

issues raised in this Notice of Inquiry, 

commenters should provide detailed 

responses, and should supply examples 

whenever feasible. 

By the Commission. 

Bryant L. VanBrakle, 

Secretary. 

[FR Doc. 05–17555 Filed 9–1–05; 8:45 am] 

BILLING CODE 6730–01–P 

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. 

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 

Lob0305@noaa.gov. 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 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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°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 

52348 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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 eggbearing 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. 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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 

52350 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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 Areaspecific 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 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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 vnotching for all Federal vessels fishing 

in LCMA 1 and in LCMA 3 above the 

42° 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° 

30′ North latitude line to v-notch all eggbearing female lobsters. There would be 

no requirement to v-notch all eggbearing 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 vnotched lobster. Commission 

guidelines, as well as state and Federal 

regulations, prohibit the harvesting of vnotched 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 vnotched 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 vnotch definition to include a second, so 

called zero tolerance, definition of a vnotched 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 straightsided cut, without setal hairs, at least 1/ 

4 inch (0.64 cm) in depth and tapering 

to a point. 

52352 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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 

Point Latitude (°N) Longitude (°W) Latitude (°N) Longitude 

(°W) 

V 39°50′ ............ 73°01′ ............ 39°50′ ........................................................ 72°55′.

X 38°39.5′ ......... 73° 40′ ........... 38°38.2′ ..................................................... 73°33.8′.

Y 38° 12′ ........... 73°55′ ............ 38°10.4′ ..................................................... 73°49′.

Z 37°12′ ............ 74°44′ ............ 37°10.6′ ..................................................... 74°38′.

ZA 35°34′ ............ 74°51′ ............ 35°31.9′ ..................................................... 74°45.5′.

ZB 35°14.5′ ......... 75°31′ ............ 35°14.5′ ..................................................... 75°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 

§ 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 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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 redesignation 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 redesignate 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 § 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 § 697.3 - Relation to 

Other Federal and State Laws. Within 

Section § 697.3 is reference to and 

incorporation of §§ 307 through 311 of 

the Magnuson-Stevens Act, which 

generally relate to enforcement. Also 

within § 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 § 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 § 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 § 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 § 697.21 - 

Gear identification and marking, escape 

vent, maximum trap size, and ghost 

panel requirements. Specifically, 

§ 697.21(f) references enforcement 

action and seizure and disposition 

52354 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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 § 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 § 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 multijurisdictional 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 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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 

52356 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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° 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 stateFederal 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° 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 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 52357 

to a mandatory v-notch regulation 

because they do not fish in the affected 

area (i.e. they fish south of 42° 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 vshaped notch in an individual’s catch. 

As noted previously, this impact would 

only affect a vessel fishing above 42° 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 nontrap 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 

52358 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

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 § 697.2, the definition of ‘‘Vshaped 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: 

§ 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 § 697.3, paragraph (b) is revised 

to read as follows: 

§ 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 MagnusonStevens Act. The relation of this part to 

other laws is further set forth in 

§ 600.705 of this chapter. 

* * * * * 

4. In § 697.4, paragraph (a)(7)(iv) is 

added and paragraph (b) is revised to 

read as follows: 

§ 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 § 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: 

§ 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 

§ 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. 

* * * * * 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 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 § 697.3 and § 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 § 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 § 697.18, paragraph (f) is revised 

to read as follows: 

§ 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°50′ N. 74° 09′ W. 

V 39° 50′ N. 72° 55′ W. 

X 38°38.2′ N. 73° 33.8′ W. 

Y 38°10.4′ N. 73° 49′ W. 

Z 37°10.6′N. 74°38′ W. 

ZA 35°31.9′ N. 74° 45.5′ W. 

ZB 35° 14.5′ N. 75° 19.3′ 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: 

§ 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 § 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 § 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. 

52360 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Proposed Rules 

(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 § 697.21, paragraphs (c) and (f) 

are revised to read as follows: 

§ 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 § 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 § 697.22, paragraph (c) is added 

as follows: 

§ 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