[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58099-58109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23568]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 070717357-7593-02]
RIN 0648-AV77


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes new Federal American lobster (Homarus 
americanus) regulations that would implement a mandatory Federal 
lobster dealer electronic reporting requirement, changes to the maximum 
carapace length regulations for several lobster conservation management 
areas (LCMAs/Areas), and a modification of the v-notch definition in 
certain LCMAs. This action responds to the recommendations for Federal 
action in the Atlantic States Marine Fisheries Commission's 
(Commission) Interstate Fishery Management Plan for American Lobster 
(ISFMP). Implementation of a mandatory Federal lobster dealer reporting 
requirement would be consistent with the recommendations for Federal 
action by the Commission in Addendum X to Amendment 3 of the ISFMP and 
would assist in providing a more comprehensive and consistent coastwide 
accounting of lobster harvest data to facilitate stock assessment and 
fishery management. Additionally, this action intends to implement new 
and revise existing Federal lobster

[[Page 58100]]

regulations to support the Commission's ISFMP by adopting v-notching 
and maximum carapace length measures (together referred to as 
broodstock protection measures) in several management areas that are, 
for the most part, identical to those already enforced by the states. 
The incorporation of these proposed broodstock protection measures 
would support the Commission's ISFMP by reducing confusion and 
facilitating enforcement within and across management areas. Finally, 
the proposed action would expand the Commission's recommended 
broodstock protection measures to include the Outer Cape Management 
Area to provide further opportunities to protect lobster broodstock in 
this management area.

DATES: Comments must be received no later than 5 p.m. eastern standard 
time on or before November 20, 2008.

ADDRESSES: You may submit comments, identified by RIN number 0648-AV77, 
by any of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9117, Attn: Peter Burns.
    <bullet> Mail: Harold Mears, Director, State, Federal and 
Constituent Programs Office, Northeast Regional Office, NMFS, One 
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the 
envelope: ``Comments on Lobster Proposed Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted may be publicly accessible. Do not 
submit confidential business information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted via Microsoft Word, Microsoft Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the Environmental Assessment (EA), including the 
Regulatory Impact Review (RIR) and the Initial Regulatory Flexibility 
Analysis (IRFA), prepared for this regulatory action may be obtained at 
the mailing address specified above; telephone (978) 281-9327. The 
documents are also available online at http://www.nero.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the mailing address listed above and 
by e-mail to <a href="/cdn-cgi/l/email-protection#561237203f3209043925223d332416393b347833392678313920"><span class="__cf_email__" data-cfemail="8cc8edfae5e8d3dee3fff8e7e9fecce3e1eea2e9e3fca2ebe3fa">[email protected]</span></a> or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Management 
Specialist, phone (978) 281-9144, fax (978) 281-9117.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    The proposed regulations would modify Federal lobster regulations 
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, in the 
absence of an approved and implemented Fishery Management Plan under 
the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) 
and, after consultation with the appropriate Fishery Management 
Council(s), the Secretary of Commerce may implement regulations to 
govern fishing in the EEZ, i.e., from 3 to 200 nautical miles (nm) 
offshore. The regulations must be (1) compatible with the effective 
implementation of an 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

    One purpose of this action is to improve the availability and 
utility of fishery-dependent lobster data to meet the need for a more 
comprehensive baseline for assessing the status of lobster stocks 
coastwide. Additionally, this proposed action would enhance lobster 
broodstock protection and facilitate enforcement of lobster measures by 
revising American lobster maximum carapace size and v-notch 
requirements, consistent with the recommendations of the Commission in 
the ISFMP. Finally, this proposed action would expand the curtain of 
protection on broodstock lobster traveling among lobster management 
areas by extending the revised maximum carapace size and v-notch 
requirements to the Outer Cape Management Area.
    The need for action is rooted in the most recent American lobster 
stock assessment and in recommendations in a subsequent peer review 
panel report. The findings of the stock assessment and peer review 
panel prompted the Commission to take action by adopting measures to 
address the need for improved fishery data collection and broodstock 
protection. The Commission took action to address these issues through 
the adoption of Addendum X and Addendum XI to Amendment 3 of the ISFMP. 
The focus of this rulemaking is on the mandatory dealer reporting 
requirements in Addendum X and the broodstock protection measures of 
Addendum XI. As explained in greater detail later in this document and 
the associated draft environmental assessment completed for this 
action, NMFS analyzed three alternatives for each of the three 
regulatory actions proposed: mandatory dealer reporting requirements; 
the maximum carapace size; and, revisions to the v-notch requirements. 
The three alternatives for each of the three proposed regulatory 
actions included: a status quo (no action) alternative; an alternative 
that would implement the Commission's ISFMP recommendations in Addendum 
X and XI; and a third modified alternative that would vary in certain 
aspects from the Commission recommendations, but would be compatible 
with the Commission's ISFMP.

Background

    American lobsters are managed within the framework of the 
Commission. 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, under the provisions of the Atlantic 
Coastal Act, decides upon a management strategy as a collective and 
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 
Federal government is obligated by statute to support the Commission's 
ISFMP and overall fishery management efforts.
    In support of the ISFMP, the National Marine Fisheries Service 
(NMFS) proposes to revise Federal American lobster regulations in 
response to the Commission's recommendations for Federal action in 
Addenda X and XI. The addenda were themselves a response, at least in 
part, to conclusions contained in the most recent lobster stock 
assessment. More specifically, the 2005 stock assessment and peer 
review process identified the dearth of landings data in the American 
lobster fishery as an inhibitor to the effective evaluation of the 
status of the lobster resource, that available data are woefully 
inadequate

[[Page 58101]]

to fulfill the management needs of the resource, and that a mandatory 
catch reporting system is needed. Such conclusions provided the impetus 
for Addendum X's mandatory reporting requirements, which has spawned 
the proposed Federal dealer reporting requirement described in this 
proposed rule.
    This same assessment and peer review process concluded that the 
Southern New England (SNE) lobster stock is suffering from depleted 
stock abundance and recruitment with high dependence on new recruits. 
The SNE stock component is in poor shape with respect to spawning, 
recruit and full-recruit abundance indices. The assessment results also 
indicated that the Georges Bank (GBK) lobster stock, although in a 
stable state with respect to abundance and recruitment, is also 
dependent on new entrants to the fishery a cause for concern that the 
fishery is too reliant on newly recruited lobster. Accordingly, the 
Commission adopted Addendum XI, which sought to protect SNE and GBK 
broodstock by creating new maximum carapace lengths and implementing a 
more restrictive definition of a v-notch in certain Lobster Management 
Areas. Accordingly, NMFS proposes three independent regulatory actions:
    (1) Requiring all Federal lobster dealers to electronically report 
trip-level lobster landings to NMFS on a weekly basis;
    (2) Implementing a maximum carapace length restriction for lobster 
in Area 2, Area 3, Area 6, and the Outer Cape Management Area and 
revising the maximum carapace length requirements for Areas 4 and 5; 
and
    (3) Revising the Federal definition of a standard v-notched 
lobster, applicable to lobster in all areas, with the exception of Area 
1.

Proposed Changes to the Current Regulations

    NMFS proposes to amend the Federal lobster regulations by expanding 
reporting requirements to all Federal lobster dealers, and revising the 
maximum carapace length regulations and v-notch definition for several 
LCMAs.

Mandatory Federal Lobster Dealer Electronic Reporting

    Consistent with the Commission's recommendations in Addendum X, 
NMFS proposes to implement regulations to extend mandatory reporting 
coverage to all Federal lobster dealers. Currently, if a Federal dealer 
holds a lobster dealer permit and no other Federal seafood dealer 
permits, that dealer is not required to report lobster or other seafood 
purchases to the Federal government. Based on the analysis completed 
for this action, 148 Federal lobster dealers (29 percent of all Federal 
lobster dealers) fall in this category and, therefore, are not 
currently subject to Federal reporting requirements. The remaining 71 
percent of Federal lobster dealers hold another Federal seafood dealer 
permit that requires routine reporting. Such dealers are mandated to 
report all species purchased, including lobster.
    Accordingly, this proposed action would affect only those Federal 
lobster dealers not currently required to report lobster sales based on 
reporting requirements mandated by other federally-managed fisheries. 
Under this requirement, all Federal lobster dealers would complete 
trip-level reports and submit them electronically each week, consistent 
with current Federal dealer reporting requirements. This proposed 
measure differs from the Commission's recommendations because this 
proposed measure would mandate electronic dealer reporting and would 
collect the data in a timelier manner (weekly vs. monthly).
    The Commission's Expanded Coastwide Data Collection Program set 
forth in Addendum X is intended to increase the quality and quantity of 
fisheries-dependent and fisheries-independent data collected at the 
state and Federal level. Federal fishery-independent data collection 
programs, such as sea sampling and port sampling activities, are 
longstanding and underway as implemented by NMFS, contributing 
substantially to the pool of information used for lobster stock 
assessments, as are the trawl surveys conducted by the Northeast 
Fisheries Science Center. NMFS believes that these Federal fisheries-
independent data collection activities exceed those as identified in 
Addendum X. Further, with respect to fishery-dependent data collection, 
Addendum X mandates participating states, and recommends that NMFS, 
require at least 10 percent of all lobster harvesters to report their 
catch. Currently, approximately 61 percent of all Federal lobster 
vessels report their catch through the NMFS Vessel Trip Report (VTR) 
program, exceeding the reporting threshold under the ISFMP. Since these 
fishery-dependent and fishery-independent activities in place already 
exceed those recommended in Addendum X, NMFS intends to take no further 
action in this rulemaking to modify the current level of harvester 
reporting. Consequently, the harvester reporting and fishery-
independent elements of Addendum X are not part of this proposed 
rulemaking.
    Both NMFS and the states acquire dealer and harvester data, 
although the frequency and reporting requirements vary across state and 
Federal jurisdictions. In an effort to achieve a common forum for 
collecting and assessing coastwide fishery data, NMFS and its Atlantic 
states partners developed the Atlantic Coastal Cooperative Statistics 
Program (ACCSP). ACCSP is a state and Federal fisheries statistical 
data collection program. The data are compiled into a common management 
system to facilitate fishery management and meet the needs of fishery 
managers, scientists and the fishing industry. To more specifically 
address the need for real-time landings data to assist in fisheries 
management, the ACCSP established the Standard Atlantic Fisheries 
Information System (SAFIS). Since 2003, SAFIS has evolved to handle the 
fisheries data from state-permitted dealers from participating states 
along the Atlantic coast. Since May 2004, SAFIS has incorporated 
Federal seafood dealer data.
    Although SAFIS was intended to be the overall entry point and 
warehouse for state and Federal dealer data, NMFS relies on its 
Commercial Fisheries Database System (CFDBS), managed by the Northeast 
Fisheries Science Center, as the official warehouse for Federal dealer 
data even though all Federal and state data are, ultimately, available 
on the SAFIS database. The proposed Federal dealer reporting 
requirements would be implemented consistent with those reporting 
requirements currently in place for Federal lobster dealers and other 
Federal seafood dealers who are already subject to mandatory electronic 
reporting requirements for fisheries managed under the authority of the 
Magnuson-Stevens Act. The mandatory electronic reporting requirements 
for fisheries managed under the authority of the Magnuson-Stevens Act 
are set forth in 50 CFR 648.6 and 50 CFR 648.7 of the Federal fisheries 
regulations and specify the data elements and technological 
requirements needed for electronic reporting. As such, Federal lobster 
dealers who would be affected by the proposed reporting regulations 
would be required to submit their weekly reports into SAFIS.
    Federal lobster dealers affected by the proposed action, similar to 
Federal dealers already required to report, would be required to submit 
electronic reports to NMFS by selecting one of three methods: direct 
real-time, online data entry into SAFIS; off-line data entry using 
software provided by NMFS, followed by file upload to SAFIS; or

[[Page 58102]]

proprietary record-keeping software which could be uploaded to SAFIS. 
Those entering the data directly into the SAFIS system could do so with 
a personal computer and Internet access. Those who choose to enter the 
data using a file upload system would also need a computer and Internet 
access. However, these respondents may be eligible to obtain the file 
upload software through a NMFS contractor, at no cost to the impacted 
dealer. The no-cost option could mitigate some of the financial impact 
to Federal lobster dealers who would be subject to mandatory dealer 
reporting. However, all impacted lobster dealers would still be 
required to maintain a personal computer and Internet connection to 
upload the data to NMFS.

Maximum Carapace Length Requirements

    In support of the Commission's measures in Addendum XI to address 
the recommendations contained in the stock assessment and peer review 
process, NMFS proposes to implement a maximum size of 5\1/4\ inches 
(13.34 cm) on all (male and female) lobsters in Area 2 wherein there is 
currently no maximum size requirement in the Federal regulations. In 
Area 4, the current Federal requirement of 5\1/4\ inches (13.34 cm) 
pertains to female lobster only. This proposed regulatory action would 
broaden the scope of the maximum size to include all lobsters (male and 
female). In Area 5, the current Federal requirement is 5\1/2\ inches 
(13.97 cm), applicable only to female lobster. This proposed regulatory 
action would reduce the maximum size to 5\1/4\ inches (13.97 cm) for 
both male and female lobster. Currently, the Federal lobster 
regulations for Area 4 and Area 5 allow recreational fishermen to 
retain one female lobster that exceeds the maximum size requirement as 
long as such lobster is not intended for commercial sale. This so-
called ``trophy'' lobster allowance in Area 4 and Area 5 would be 
eliminated. In Area 6, this proposed action would establish a maximum 
size of 5\1/4\ inches (13.34 cm) for all lobster harvested by Federal 
vessels in this area.
    Additionally, this regulatory action would establish a maximum 
carapace size requirement in Area 3. The Commission's plan requires the 
states to have implemented a lobster maximum carapace length of 7 
inches (17.78 cm) by July 1, 2008, reduced by \1/8\ inch (0.32) during 
each of two successive subsequent years until a terminal maximum size 
of 6\3/4\ inches (17.15 cm) is in place in July 2010. Given the timing 
associated with Federal rulemaking on this proposed action, the 
earliest NMFS would establish a 7-inch (17.78 cm) maximum size would be 
July 1, 2009. Therefore, to be consistent with the Commission and 
States' recommended time frame for implementation and fully complement 
state regulations, this proposed action would implement the maximum 
size recommended by the Commission for the second year of the three-
year implementation schedule and implement the 6 7/8-inch (17.46 cm) 
maximum size in July 2009. Consistent with the ISFMP, the terminal 
maximum size for Area 3 of 6\3/4\ inches (17.15 cm) would take effect 
on July 1, 2010. The aforementioned measures would be consistent with 
the Commission's plan. The Commission's plan does not include a maximum 
size requirement for the Outer Cape Area, the only Area without a 
maximum size requirement under the Commission's ISFMP. NMFS, however, 
in this regulatory action proposes to adopt a maximum carapace length 
requirement for the Federal waters of the Outer Cape Area, consistent 
with the sizes and implementation time-line proposed for Area 3. It is 
anticipated that such action would provide additional conservation 
benefits for lobster migrating through this area from the other stock 
areas.

Modified Definition of V-Notch

    As approved by the Commission in Addendum XI, NMFS proposes to 
revise the v-notch definition in Areas 2, 3, 4, 5 and 6 to apply to any 
female lobster that bears a notch or indentation in the base of the 
flipper that is at least as deep as \1/8\ inches (0.32 cm), with or 
without setal hairs. In the proposed revision, v-notched lobster also 
pertains to any female which is mutilated in a manner which could hide, 
obscure, or obliterate such a mark. Under the Commission's ISFMP, the 
zero tolerance v-notch definition for Area 1 would remain unchanged, 
and the Outer Cape Area would maintain the current definition of a v-
notch (at least \1/4\ inch (0.64 cm) in depth, without setal hair). 
NMFS however, proposes in this regulatory action to also include the 
Outer Cape Management Area under the revised v-notch definition as 
specified in the Commission's ISFMP for Areas 2, 3, 4, 5 and 6.

Comments and Responses

    In response to the Commission's recommendations for Federal action 
in Addenda X and XI, NMFS published an Advance Notice of Proposed 
Rulemaking (ANPR) on September 21, 2007 (72 FR 53978), to inform the 
public that the agency is considering implementing several management 
measures including a mandatory electronic reporting requirement for 
Federal lobster dealers and changes to the v-notch and maximum size 
regulations in several LCMAs. The comment period closed on October 22, 
2007.
    A total of eight entities commented in response to the ANPR. Some 
of the comments spoke to more than one of the proposed actions. The 
comments can be categorized as follows: Six commentators wrote in 
opposition of the mandatory electronic Federal lobster dealer reporting 
requirement; One commentator commented in favor of the proposed maximum 
size and v-notch requirements; Two commentators opposed the maximum 
size requirements.
    The dealer reporting comments were received from three lobster 
dealers, the State of Maine Department of Marine Resources, and two 
lobster fishermen's organizations. The general theme of these comments 
was that mandatory weekly electronic reporting would add more 
administrative burden to lobster dealers and it would be redundant 
since many dealers are already providing the data to their respective 
state fisheries agency. There were no comments in favor of this 
measure. Two comments opposing the maximum size requirements were 
received by a mobile gear fishermen's group and a recreational diving 
group. The comments and the NMFS response to each comment are provided 
here.
    Comment 1: Three lobster dealers from Maine wrote in opposition to 
the mandatory electronic dealer reporting requirement, generally 
stating that this measure would unnecessarily add to the reporting 
burden already mandated by the state. One dealer is concerned that this 
additional burden would cause the business to have to hire additional 
office staff.
    Response: NMFS understands that there might be a small amount of 
seeming redundancy for those Federally permitted dealers who also have 
a state dealer permit and who are thus already bound to report by 
virtue of their state permit. On balance, however, NMFS believes that 
the utility of electronic reporting outweighs the minor burden 
associated with the minority of dealers who would have to report both 
electronically and by paper. More specifically, the majority of Federal 
lobster permit dealers, approximately 71 percent, already have to 
report electronically. Collection and assembly of the requisite data 
likely the most time intensive task is a one-time event that must occur 
regardless of the format in

[[Page 58103]]

which the data is ultimately reported (and such data is undoubtedly 
being collected by the business in some form as part of the dealer's 
regular business practices). Although there might be some start-up 
costs associated with electronic reporting (See NMFS Response to 
Comment 4), computer reporting is intuitively more efficient and less 
time intensive than having to write the data out and submit it in paper 
format. Whether computer reporting would ultimately result in new 
efficiencies in every case is difficult to gauge and might be dependent 
on individuals on a case by case basis. Nevertheless, NMFS has received 
no information to suggest that its proposed electronic reporting would 
be a significant additional burden to the 29 percent of the dealers who 
do not presently report in such a format, much less that the burden 
would cause the need to hire additional office staff.
    In proposing electronic Federal lobster dealer reporting, NMFS 
balances the relatively small additional burden against the utility 
gained by the proposed action. First, there is great utility for 
managers having access to, and thus having their decisions guided by, 
up-to-date harvest information. Electronic reporting allows for far 
more speedy collection of data than can be accomplished through a paper 
reporting system. The submission of paper reports is cumbersome and the 
data are not consistently loaded by the states into the SAFIS system in 
a timely manner. Some states require trip-level dealer reports be 
submitted on a monthly basis at which time, state employees enter in 
the data. Consequently, the data may not reach the SAFIS system until 
six weeks or more after a particular lobster fishing trip which could 
hamper fisheries management and assessment efforts. Conversely, under 
the proposed electronic reporting process, once received, the data is 
already in the system, with no data entry or handling of paper reports 
needed. Some states may even eliminate their paper-based reporting 
requirements for those state dealers who would be required under a 
Federal mandatory reporting program to report to NMFS on an electronic 
basis, although such an outcome is speculative.
    Second, NMFS believes that data received through different systems 
can undermine the integrity and usefulness of the data. NMFS finds it 
advantageous for its data to be collected in consistent fashion, not 
only for administrative efficiencies (NMFS already has a successful and 
tested electronic reporting system in place for other species), but for 
the statistical integrity of collecting similar data sets for a single 
species by the same means. Further, NMFS's experience suggests that 
while overall compliance with Commission plans is excellent, states do 
not always interpret, and are not always able to implement, the plans 
consistently and uniformly. Accordingly, NMFS believes it more prudent 
in this instance to mandate a single uniform Federal lobster dealer 
reporting system rather than rely on the eleven states on the Lobster 
Board to submit data for certain Federal dealers according to the 
individual state's reporting program.
    Comment 2: One dealer wrote that he purchases lobster from 
fishermen who drop off their catch on a floating lobster car. The 
lobster are dropped off by fishermen when the dealer is not there, 
complicating the ability to garner specific data on where and when the 
lobster where harvested.
    Response: The Commission's plan recommends that the dealer provide 
the statistical area where the lobster were harvested. NMFS has 
considered but rejected this recommendation and, at this time, does not 
propose that Federal dealers provide data on where the lobster they 
purchase were harvested. NMFS is aware that some lobster dealers in 
Maine acquire lobster without interacting directly with the harvester 
as lobster are collected by the dealers from the harvesters' lobster 
cars. NMFS believes that lobster harvesting information is best 
provided by the harvester, not the dealer.
    Comment 3: One lobster cooperative manager commented that dealer 
reporting for lobster is not necessary since lobster is not a quota-
managed species.
    Response: Although the lobster fishery is not managed by a quota 
system, the benefits of consistent fishery-dependent data in 
effectively managing the resource cannot be overstated. The lobster 
fishery is the most economically lucrative in the Northwest Atlantic, 
with ex-vessel revenues totaling nearly $395 million in 2006, 
sustaining numerous fishing communities. Yet, only 61 percent of 
Federal lobster harvesters and only 71 percent of Federal lobster 
dealers provide landings data to NMFS. The most recent peer-reviewed 
lobster stock assessment indicated that improvements to the quality and 
quantity of fishery-dependent data, including dealer data, are needed 
to facilitate the assessment of the lobster stocks. In the absence of a 
mandatory Federal harvester reporting program NMFS is proposing to act 
on the Commission's recommendation to implement a mandatory dealer 
reporting program to complement the actions of the states in enhancing 
the quality and quantity of lobster fishery data to assist in the 
management of this important fishery.
    Comment 4: The State of Maine Department of Marine Resources 
responded in opposition to the proposed mandatory dealer reporting 
measure, indicating that it would impact about 86 small dealers in 
Maine. The Maine Department of Marine Resources is already collecting 
trip-level data from dealers on a monthly basis and believes that 
electronic reporting requirements would be too burdensome on dealers 
who do not have access to the Internet or to a computer and are now 
able to provide this data on paper trip tickets to fulfill state 
requirements. The State of Maine believes this Federal action could 
jeopardize the relationship that Maine has fostered with its dealers to 
facilitate the receipt of lobster landing data.
    Response: Maine's industry outreach to establish the cooperation 
and trust needed to acquire this important data is laudable, as is the 
commitment of the lobster industry to provide invaluable fishery-
dependent data for management purposes. This relationship embodies the 
concept of cooperative management that is vital to the management 
framework for the lobster fishery. It is not clear, however, how a 
Federal reporting requirement would undermine industry cooperation at 
the state level. Integration of an electronic reporting program may 
enhance the relationship between industry and public agencies by 
reducing the time and costs of both providing and acquiring the data 
over time.
    NMFS realizes that although a Federal electronic dealer reporting 
requirement would only impact a minority of lobster dealers (estimated 
to be 29 percent of all Federal lobster dealers), a large portion of 
the 29 percent come from Maine (88 of the 148 non-reporting Federal 
lobster dealers are based in Maine, based on NMFS permit data). At the 
same time, 36 dealers in Maine are successfully reporting on an 
electronic basis. However, as the largest lobster harvesting state by 
far, Maine harvest data is critical to ensure the responsible 
management of the fishery.
    It is evident, both anecdotally and from some of the comments 
received that some dealers, especially in more remote areas, may not 
use computers as part of their business operations. Therefore, it is 
assumed that the State of Maine and other states allow dealers the 
option of submitting either paper or electronic reports to maintain 
current business practices and avoid the start-

[[Page 58104]]

up and maintenance costs associated with acquiring the technological 
means to conduct business in an electronic format. For the purposes of 
this proposed rulemaking, NMFS estimates that the initial costs to 
dealers would be about $580 for an adequate computer and approximately 
$652 annually to support Internet access for those dealers that 
currently do not have a computer or Internet service. The potential 
impact that the cost of acquiring a computer and maintaining Internet 
access would have on affected Federal dealer business income is 
uncertain. However, potential impacts to lobster dealers with no other 
Federal permits could be assumed to be similar to Federal dealers who 
are currently subject to mandatory reporting whose business is solely 
or primarily comprised of lobster sales. Under this assumption, the 
estimated first-year cost of purchasing equipment and Internet access 
would represent 0.47 percent of gross net sales assuming a 40 percent 
markup (based on a NMFS economic analysis conducted on lobster fishery 
transactions) and median purchases of 134,000 pounds (60,909 kg) with 
net gross sales valued at $245,000 during 2007. These estimates are 
based on dealer reports for all Federal lobster permit holders who were 
subject to mandatory reporting during 2007. At these values, the annual 
cost of maintaining Internet access would be 0.27 percent of net gross 
sales. The expected costs would be lower for any dealer who already has 
Internet access and a computer meeting the minimum specifications. 
Further, the computer and Internet service, having been purchased, 
would have great utility and application to improve other aspects of 
the dealer's business in ways not associated with data reporting.
    Put another way, based on the assumed markup of 40 percent, dealers 
would receive $1.83 per pound over the cost of purchasing lobster from 
harvesters. This translates into sales of 673 pounds (305.3 kg) of 
lobster to cover the cost of purchasing equipment and Internet access 
in year 1 and 356 pounds (161.8 kg) of lobster sales to cover the cost 
of Internet access on an ongoing basis.
    Electronic dealer reporting, as proposed in this regulatory action, 
despite the initial costs, could save time and money for dealers 
affected by this requirement. Additionally, it has the potential to 
save time for state agencies now devoting staff to hand-enter these 
paper reports for submission into the SAFIS system. In addition to the 
potential benefits to industry participants, reporting consistency with 
all other Federal dealers in possession of limited access permits, and 
timeliness of electronic dealer reports represent additional benefits 
associated with this proposed electronic dealer reporting action. NMFS 
also analyzed an option to allow dealers one year to acquire the means 
necessary to provide electronic reports, however, it appears that this 
approach would merely defer the costs associated with acquiring the 
necessary technology to the following year, with savings limited to the 
uncommitted costs of Internet service.
    In general, the proposed measures are based upon the lobster ISFMP 
that was created and overseen by the states. Further, the measures are 
the result of addenda that were unanimously approved by the states, 
including the State of Maine, and are consistent with regulations 
already in place at the state level.
    Comment 5: A commercial lobster fishing industry association 
commented in favor of the proposed maximum size and v-notching 
requirements as described in the ANPR.
    Response: NMFS agrees and believes that the implementation of the 
proposed measures would be compatible with the Commission's 
recommendations for Federal action and would reduce confusion on the 
part of the participants and regulatory agencies, and facilitate 
enforcement by aligning state and Federal lobster management measures. 
Additionally, by expanding the scope of this action to include the 
Outer Cape LCMA under the maximum size and v-notching requirements as 
proposed, some unknown level of protection to transient lobster moving 
among different management areas may be realized. Further, this action 
could reduce the potential for more directed fishing effort into the 
Outer Cape LCMA that could occur if that area remained the only LCMA 
not governed by a maximum size requirement and bound to a less 
restrictive definition of a legal v-notch .
    Comment 6: A commercial fishing industry group whose membership 
includes vessels participating in the non-trap lobster fishery sector 
wrote to oppose the proposed maximum size requirements in the ANPR. The 
commentator adds that the non-trap sector has a comparatively 
negligible impact on lobster mortality although the lobster bycatch of 
this sector provides an essential contribution to the groundfish fleet. 
The commentator requests that NMFS justify the biological need for this 
restriction as well as the economic analysis of its impacts.
    Response: With the exception of the Outer Cape Area, NMFS action 
would not further impact lobster vessels since they are already subject 
to the new maximum sizes under state regulations. NMFS has proposed to 
implement the recommended maximum sizes for Area 2, Area 3, Area 4, 
Area 5 and Area 6 consistent with the Commission's plan to diminish 
confusion that could occur with differing state and Federal regulations 
in these areas and to support the intent of these measures to provide 
additional broodstock protection as advised through the most recent 
American lobster stock assessment peer review process. Consistent with 
this conservation premise, NMFS is proposing to extend the Area 3 
maximum size requirement to the Outer Cape Area. The intent of this 
proposed action would be to provide further protection for lobster 
broodstock in this area which is known to be a corridor for lobster 
moving between inshore and offshore areas and between stock and 
management areas. In other words, there is the potential to undermine 
the maximum size broodstock protection benefits of these proposed 
measures if lobster are protected in one area (i.e., caught, but 
released back to the sea), only to have that lobster caught and kept 
while transiting another area. In addition, at-sea enforcement would be 
significantly enhanced if the proposed broodstock measures were 
implemented in all LCMAs.
    The commentator has asked that the economic impacts of this 
proposed action to the non-trap sector be addressed. Given previous 
state action to adopt the new maximum size requirements with the 
exception of the Outer Cape Area, the proposed Federal action would 
only impact non-trap lobster harvest of lobster greater than 6 3/4 
inches (17.15 cm) taken from the Outer Cape Area. Based on NMFS 
observer data, approximately 5.7 percent of the lobster taken by the 
non-trap fleet in Area 521, used as a proxy for the Outer Cape Area, 
exceeded 6\3/4\ inches (17.15 cm). Based on this information and in 
consideration of average lobster price, NMFS estimates that the three-
year average value of reduced lobster landings for non-trap vessels 
fishing in the Outer Cape Area would range from less than $1 to under 
$1,000 annually. The estimated median loss of foregone lobster value 
would be about $117 annually per affected vessel. In terms of impacts 
on total fishing revenue for affected non-trap vessels, these values 
translate into losses ranging from less than 0.01 percent to 1.2 
percent. Therefore, the relative change in total fishing income is much 
less than the expected change in Outer Cape Area

[[Page 58105]]

landings since non-trap vessels may fish for lobster in other areas and 
because they earn the majority of their fishing income from species 
other than lobster. However, a survey of lobster vessels indicates that 
increased fuel costs have caused a reduction in the profit margin for 
some fishing businesses. In the Outer Cape Area the added effect of 
reduced revenue potential could compound the economic stress on the 
financial viability of lobster businesses operating in the area.
    Comment 7: A representative of a recreational diving club wrote to 
express concerns over the passage of Addendum XI wherein the Commission 
adopted the revised maximum sizes to include both male and female 
lobster. This group submitted a proposal before the Commission's 
Lobster Management Board after adoption of Addendum XI to request the 
recreational take of one oversized lobster per trip by divers. Although 
discussed at several Board meetings, both prior to and after approval 
of Addendum XI, the proposal was not approved by the Board.
    Response: Although NMFS acknowledges that the proposed rule might 
have some impact on recreational divers seeking so-called ``trophy 
sized'' lobster, NMFS believes that, on balance, applying maximum sizes 
consistently to male and female lobster is prudent. As a preliminary 
matter, maximum size restrictions are known to protect larger lobsters 
which, according to the best available scientific information, are more 
prolific breeders. Further, application of the standard to both male 
and female lobsters would make the regulation more consistent, 
understandable, and enforceable. Additionally, the maximum size 
restriction of 5\1/4\ inches (13.34 cm) would still allow for the 
capture of large lobsters and NMFS has received no information to 
suggest that divers currently diving for oversized lobster would not 
dive for lobsters in excess of 5 inches (12.7 cm) which would still 
remain legal under this proposed rule. Regardless of Federal action, 
recreational divers are already bound by the proposed maximum size 
revisions by virtue of the states having approved the restrictions of 
the Commission's Addendum XI.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism 
implications as defined in E.O. 13132. The proposed measures are based 
upon the lobster ISFMP that was created and is overseen by the states. 
The proposed measures are the result of addenda that were unanimously 
approved by the states, have been recommended by the states through the 
Commission, for Federal adoption, and are in place at the state level. 
Consequently, NMFS has consulted with the states in the creation of the 
ISFMP which makes recommendations for Federal action. Additionally, 
these proposed regulations do not pre-empt state law and do nothing to 
directly regulate the states.
    This proposed rule contains a collection of information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. Public reporting burden for the 
Mandatory Federal Lobster Dealer Electronic Reporting requirement is 
estimated to average four minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
State, Federal and Constituent Programs Office at the ADDRESSES above, 
and by e-mail to <a href="/cdn-cgi/l/email-protection#aeeacfd8c7caf1fcc1dddac5cbdceec1c3cc80cbc1de80c9c1d8"><span class="__cf_email__" data-cfemail="efab8e99868bb0bd809c9b848a9daf80828dc18a809fc1888099">[email protected]</span></a> or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    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, the reason 
for consideration, and the legal basis are contained in the SUMMARY 
section of the preamble in this proposed rule. A summary of the IRFA 
follows:
    The proposed (preferred) action would implement a mandatory 
electronic Federal lobster dealer reporting requirement. In addition, 
it would revise the current lobster maximum carapace length 
restrictions in Area 4 and Area 5 and establish a maximum size in Areas 
2, 3, and 6. Beyond the scope of the ISFMP, the proposed Federal action 
would expand the Area 3 maximum size requirement to the Outer Cape Area 
wherein the Federal regulations do not currently limit lobster harvest 
based on a maximum carapace length. Additionally, it would include the 
Outer Cape Area under the more restrictive 1/8-inch (0.32 cm) v-notch 
requirement.
    The proposed management measures would affect small entities 
engaged in several different aspects of the lobster fishery. The 
affected entities include lobster dealers, party/charter vessel 
operators, and commercial fishers using trap and non-trap gears. The 
proposed action would implement a mandatory electronic reporting 
program for Federal lobster dealers, a maximum carapace length 
limitation and a change in the definition of a standard v-notched 
lobster. Specifically, the latter two measures, intended for lobster 
broodstock protection, would impact Federal vessels that fish in the 
Outer Cape Area.

Economic Impacts of the Proposed Rule on Small Entities

Mandatory Federal Lobster Dealer Electronic Reporting

    Federal lobster dealers are the entity that would be most affected 
by this proposed requirement. According to the Small Business 
Administration (SBA), lobster dealers are considered small entities 
when they employ less than 100 people. NMFS does not collect employment 
data from Federally-permitted lobster dealers in the Northeast region. 
However, based on review of data reported in the U.S. Census Bureau's 
County Business Patterns it is estimated that all regulated entities 
that specialize in lobster wholesale trade, as well as those entities 
that may not specialize in the lobster trade yet would be required to 
comply with the proposed action, are presumed to be small entities for 
purposes of the Regulatory Flexibility Act (RFA).
    The proposed action would require all federally-permitted lobster 
dealers to report all seafood purchases, including lobster, through an 
electronic reporting system. This action would only affect

[[Page 58106]]

regulated lobster dealers who are not already required report by virtue 
of holding at least one other Federal dealer permit requiring mandatory 
reporting. During 2007 there were 511 lobster dealers issued a Federal 
permit to purchase lobster. Of these dealers the majority (71 percent) 
were already required to report leaving 148 regulated small entities 
that would be required to comply with the proposed action.
    To comply with the electronic reporting requirements, dealers would 
need a personal computer and Internet service. The required 
specifications for the personal computer are such that any recently 
purchased computer, and most older computers would meet the minimum 
specifications. For this reason, any dealer that currently owns a 
computer would not likely be required to purchase new equipment. The 
number of regulated lobster dealers who do not now own a computer is 
uncertain but is expected to be low. Those who already have Internet 
access and a computer would not have any specific costs associated with 
this new reporting requirement. It is estimated that the average start-
up costs for those lobster dealers who do not have a computer would be 
about $580 to purchase a personal computer and monitor that would meet 
or exceed the specifications needed to participate in the electronic 
dealer reporting program. Preliminary estimates of additional costs of 
about $652 per year for Internet access would bring the total start-up 
costs to approximately $1,232, with annual costs for Internet access 
continuing annually. The unknown number of dealers impacted by the 
proposed dealer reporting program, whom already own a computer but are 
not connected to the Internet, would assume the estimated annual fees 
for this service at about $652 annually. Based on data from dealers who 
are currently required to report, these costs were estimated to be 0.47 
percent of gross net sales (i.e. sales less the cost of purchasing 
lobster) in the first year for the one-time cost of purchasing a 
computer and the first year of Internet service. Ongoing costs were 
estimated to represent 0.27 percent of gross net sales.

Changes to Maximum Carapace Length Requirements and Revision to V-Notch 
Definition

    Since the states have already implemented the maximum size and v-
notch requirements for the affected areas, with the exception of the 
Outer Cape Area as proposed in this rulemaking action, the small 
entities impacted by the maximum size and v-notch provisions proposed 
herein would be limited to the Federal commercial lobster fishing 
vessels and party/charter dive vessels that fish, or are permitted to 
fish, in the Outer Cape Area. The Outer Cape Area has been 
characterized as fishing on a population of transient lobsters 
migrating between inshore and offshore areas.
    Party/Charter Vessels. Party/Charter operators are classified with 
businesses that offer sightseeing and excursion services where the 
vessel departs and returns to the same location within the same day. 
Relevant to this proposed action, these businesses include party/
charter recreational fishing vessels which offer SCUBA divers 
recreational opportunities to harvest lobsters for personal use. The 
SBA size standard for this sector is $7 million in gross sales. 
Although sales data are not available, party/charter operators in the 
lobster fishery tend to be small in size and do not carry a large 
number of passengers on any given trip. For these reasons it is 
expected that all regulated party/charter operators holding a Federal 
lobster permit would be classified as a small entity for purposes of 
the RFA. All Federal lobster party/charter permit holders are already 
required to abide by all state regulations under the most restrictive 
rule of the ISFMP. This means that the proposed action would only 
affect party/charter operators that take passengers for hire in the 
Outer Cape Area since this is the only area in the proposed Federal 
action not included for a maximum size or a more restrictive v-notch in 
the ISFMP and therefore, not under such restrictions by any state.
    During 2007 there were a total of 31 Federal permit holders with a 
party/charter lobster permit. Of these vessels all but one held at 
least one other Federal party/charter permit (for another species), 
while the majority (24) held four or more other Federal party/charter 
permits in addition to the lobster permit. These data indicate nearly 
all lobster party/charter permit holders have at least one other 
Federal permit requiring mandatory reporting. Available logbook (VTR) 
data show that only 3 of the 31 lobster party/charter permit holders 
reported taking passengers for hire during trips when lobster were kept 
during the 2007 fishing year. Of the trips that did report landing 
lobsters none took place within NMFS statistical area 521, used a proxy 
for the Outer Cape Area. In fact, all for-hire recreational trips took 
place in statistical areas in the Mid-Atlantic region. Although the 
number of participating for-hire vessels was larger in Fishing Year 
(FY) 2005 (6 vessels) and FY 2006 (7 vessels), these vessels also took 
recreational lobster fishing trips only within the Mid-Atlantic area. 
None took a for-hire trip in the Outer Cape Area.
    These data suggest that participating for-hire lobster permit 
holders would not be affected by the proposed action in the Outer Cape 
Area although these permit holders may have been affected by action 
already taken by individual states. While the magnitude of any impact 
associated with state action is uncertain, it is likely to have been 
relatively small. In the areas where recreational lobster fishing was 
reported (corresponding to Area 4 and/or 5) a maximum size for female 
lobsters has already been in place for several years. Despite the state 
action and proposed Federal action to reduce the maximum size from 5\1/
2\ inches (13.97 cm) to 5\1/4\ inches (13.34 cm) in Area 5 and expand 
it to provide additional protection for male lobsters in Areas 4 and 5, 
these areas represent the southern terminus of the lobster resource. 
Therefore, eliminating the exemption for a trophy lobster would have 
little impact on the recreational fishery since the encounter rate with 
lobsters of that size is expected to be very low.
    Federal Commercial Lobster Vessels. The SBA size standard for 
commercial fishing businesses is $4 million in gross sales. According 
to dealer records, no single lobster vessel would exceed $4 million in 
gross sales. Therefore, all operating units in the commercial lobster 
fishery are considered small entities for purposes of analysis. The 
economic impacts of the change in maximum size in the Outer Cape Area 
are uncertain since all vessels are not required to report their 
landings to NMFS. Survey data collected during 2005 by researchers at 
the Gulf of Maine Research Institute and made available to NMFS 
included information on lobster business profitability for vessels 
operating in Areas 1, 2, and 3. Operators in the Outer Cape Area were 
not specifically sampled. However, it is likely that these entities are 
of similar scale to operators that were sampled and fish on a lobster 
stock that bear some similarities to operators in Area 1 although the 
size composition of catch tends to be larger than would be the case in 
Area 1. Subject to these caveats, it was assumed that the cost and 
earnings profile for Area 1 survey participants would be a suitable 
proxy for financial performance of Outer Cape Area trap participants.
    The survey data indicate that the majority of Area 1 lobster 
businesses were able to cover operating costs with gross sales. 
However, net earnings for the majority of businesses were below

[[Page 58107]]

median personal income for the New England region and only about 20 
percent of lobster businesses earned a positive return to invested 
capital. Since 2005, fuel costs have more than doubled cutting average 
net return by about 30 percent; this is before taking into account the 
opportunity cost of the owner's labor or capital. Thus, profit margins 
have shrunk significantly since 2005 and even small changes in revenue 
streams could place lobster businesses in financial risk. However, as 
the following analysis describes, few vessels rely exclusively on the 
Outer Cape Area for lobster fishing revenue. Further, only a small 
percentage of the catch in the trap sector is expected to be impacted 
by the proposed measures.
    Trap Gear Vessels. The proposed Federal action would directly 
affect only those Federal lobster vessels that selected the Outer Cape 
Area. For the 2007 fishing year, 184 Federal lobster trap vessels 
selected the Outer Cape as one of the potential trap fishing areas. 
Federal Fisheries Observer data suggest, in consideration of the 
terminal maximum size proposed in the preferred alternative of 6 inches 
(17.15 cm), trap vessels operating in this area would expect a 
reduction in catch of approximately 0.5 percent. Note, however, that a 
price premium is paid for larger lobsters such that the realized 
economic impact on lobster fishing businesses is likely to be 
proportionally larger than the expected change in catch.
    Non-Trap Gear Vessels. Based on a three-year average (2005-2007) 
overall dependence on lobster for non-trap vessels ranged from 0.03 
percent to 30.6 percent in terms of annual value and from 0.01 percent 
to 10.6 percent in volume. Few vessels relied exclusively on the Outer 
Cape Area for lobster fishing revenue. Using statistical area 521 as a 
proxy for the Outer Cape during the 2005-2007 period, dependence on 
lobster in value ranged from 0.01 percent to 19.4 percent, averaging 
1.4 percent of overall value. In volume, lobster harvested from area 
521 ranged from 0.002 percent to 5.7 percent, averaging 0.4 percent of 
overall volume. The maximum expected annual economic impact of the 6-
inch (17.15-cm) maximum size in the Outer Cape Area on non-trap vessels 
is estimated to be about $1,000, while the median annual impact was 
estimated to be $117 per vessel. These values are reflective of the 
relatively low dependence on the Outer Cape Area for lobster fishing 
revenue and the low encounter rate suggested by observer data of 
lobsters above the 6-inch (17.15 cm) proposed maximum size. In terms of 
total fishing revenue these estimated revenue impacts represent between 
0.01 percent and 1.2 percent of total fishing revenue for participating 
regulated non-trap gear small entities.
    The added economic impact of the change in v-notch definition 
across all areas is highly uncertain. Although this change would result 
in an unknown level of reduced opportunities to retain legal lobsters 
it seems likely that this additional impact would have less impact on 
non-trap than trap vessels since non-trap vessels earn only a portion 
of total fishing revenue from lobsters. The added effect on trap 
vessels is difficult to assess, but would reduce potential revenue in 
addition to that which may be associated with either changes in 
existing maximum size or implementation of new maximum size 
regulations. Available sea sampling data from the Commonwealth of 
Massachusetts indicate that between 2 percent and 4 percent of females 
encountered in the Outer Cape Area were v-notched. A substantial 
portion of the Outer Cape Area legal harvest is comprised of females 
(64 percent), an unknown proportion of which would be illegal under the 
preferred alternative.

Economic Impacts of Non-Preferred Alternatives to the Proposed Action

Mandatory Federal Dealer Electronic Reporting

    NMFS analyzed two alternatives in addition to the proposed 
alternative for this action: a no action alternative and a one-year 
delay in the implementation of mandatory lobster dealer electronic 
reporting. With the no action alternative, there would be no expected 
economic impacts to Federal lobster dealers. Those who are not required 
to report under the current Federal requirements would not be required 
to report lobster purchases to NMFS and would not suffer any associated 
economic impacts. Specifically, 148 Federal lobster dealers would not 
be required to submit electronic trip-level reports to NMFS on a weekly 
basis. This could impede the availability of an up-to-date, 
comprehensive data set of trip-level lobster landings from Federal 
dealers on a coastwide basis. NMFS believes that the optimal situation 
from a fishery monitoring and data management perspective would be one 
wherein all Federal dealers report electronically to NMFS, making this 
trip-level data available in a single format on a weekly basis.
    If the one-year delay in implementation is selected, this 
alternative would provide some temporary relief to affected regulated 
entities, but would only put off the cost of coming into compliance 
with the proposed action for one year. Consistent with the proposed 
action, it would allow for the receipt of all trip-level lobster data 
by all Federal lobster dealers in a consistent and more timely fashion. 
However, it would allow the industry more time to comply with the 
requirements. It would postpone the start-up and maintenance costs 
associated with the purchase of a computer ($580) in cases where the 
dealer does not currently own one, and would postpone the costs of 
Internet service ($652 per year), as applicable.

Maximum Carapace Length Measures

    As with the dealer reporting requirement, NMFS analyzed a no action 
alternative and the Commission's alternative in addition to the 
proposed alternative selected for this rulemaking action. Essentially, 
all Federal permit holders possess either a landing permit or lobster 
fishing license from a state of landing. Under the Federal lobster 
regulations (50 CFR part 697), Federal lobster vessels are subject to 
the most restrictive of either state or Federal regulations, regardless 
of where the vessels fish. Therefore, in the absence of Federal rules 
that mirror revised state regulations based on the Commission's plan, 
Federal vessels will be held to the new state regulations for the 
respective lobster management areas, even if fishing in Federal waters. 
So, the impact is, theoretically, the same to Federal vessels and to 
the resource, regardless of whether the no action alternative or the 
Commission's alternative is selected, assuming that states remain in 
compliance with the ISFMP. However, in choosing the no action 
alternative, differences in the state and Federal regulations across 
multiple management areas could cause some confusion among the industry 
and managers and may inhibit effective enforcement of fisheries 
regulations. This could occur since, without complementary Federal 
action, nearly all the lobster management areas within the scope of 
this action would have inconsistent Federal and state maximum size 
requirements within each area. Conversely, implementation of the 
Commission recommendations, the second alternative that NMFS analyzed 
an has rejected in favor of the proposed measures, would negate any 
inconsistencies between state and Federal regulations. With the 
Commission's alternative, the industry would not be impacted since they 
are already complying with these measures under state law. Under either 
of these

[[Page 58108]]

rejected alternatives, Outer Cape lobster vessels would not be impacted 
and could, with some exceptions, harvest lobster in the Outer Cape Area 
without regard to maximum carapace lengths.

Revision to V-notch Definition

    The consequences associated with the Federal implementation of the 
v-notch definition as recommended in the Commission's alternative and 
set forth in the respective state regulations are the same, in most 
respects, as no Federal action. The measures adopted by the states 
would impact the Federal permit holders since they are more restrictive 
than the current Federal regulations. Implementing these measures at 
the Federal level would not subject Federal lobster vessels to any 
further economic burden since they would already be subject to these 
restrictions by standing state laws in the absence of Federal action. 
However, there are benefits to Federal action in implementing the 
Commission's recommended measures compared to the no action alternative 
because consistent state and Federal regulations would limit confusion 
as to the enforceable standards among jurisdictions and management 
areas and would facilitate the enforcement of these measures and foster 
their utility in augmenting egg production through broodstock 
protection. Therefore, on balance, the Commission's alternative would 
provide additional benefits to industry participants and would allow 
for more effective enforcement than the no-action alternative.
    Socio-economic impacts would not be expected by choosing to 
maintain the current Federal v-notching standards or by implementing 
the Commission's recommendations which would not include a revised v-
notch for the Outer Cape Area. Federal vessels will be subject to the 
more restrictive v-notch measures in place at the state level even if 
NMFS maintains the status quo. Outer Cape lobster fishers would not be 
impacted by a more restrictive v-notch under either non-preferred 
alternative and could continue to harvest lobster under the current \1/
4\-inch (0.64-cm) v-notch requirement, while vessels in other 
management areas would remain subject to the stricter \1/8\-inch (0.32-
cm) v-notch standard.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: October 1, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR chapter VI, part 
697, is proposed to be amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

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

    2. In Sec.  697.2(a), the definition for ``Standard v-shaped 
notch'' is revised to read as follows:


Sec.  697.2  Definitions.

    (a) * * *
* * * * *
    Standard V-shaped notch means a straight-sided triangular cut, with 
or without setal hairs, at least \1/8\ inch (0.32 cm) in depth and 
tapering to a point.
* * * * *
    3. In Sec.  697.6, paragraphs (n) through (s) are added to read as 
follows:


Sec.  697.6  Dealer permits.

* * * * *
    (n) Lobster dealer recordkeeping and reporting requirements--(1) 
Detailed report. All Federally-permitted lobster dealers must submit to 
the Regional Administrator or to the official designee a detailed 
report of all fish purchased or received for commercial purposes, other 
than solely for transport on land, within the time periods specified in 
paragraph (q) of this section, or as specified in Sec.  648.7(f) of 
this chapter, whichever is most restrictive, by one of the available 
electronic reporting mechanisms approved by NMFS, unless otherwise 
directed by the Regional Administrator. The following information, and 
any other information required by the Regional Administrator, must be 
provided in each report:
    (i) Required information. All dealers issued a Federal lobster 
dealer permit under this part must provide the following information, 
as well as any additional information as applicable under Sec.  
648.7(a)(1)(i) of this chapter: Dealer name; dealer permit number; name 
and permit number or name and hull number (USCG documentation number or 
state registration number, whichever is applicable) of vessel(s) from 
which fish are purchased or received; trip identifier for each trip 
from which fish are purchased or received from a commercial fishing 
vessel permitted under part 648 of this chapter with a mandatory vessel 
trip reporting requirement; date(s) of purchases and receipts; units of 
measure and amount by species (by market category, if applicable); 
price per unit by species (by market category, if applicable); port 
landed; disposition of the seafood product; and any other information 
deemed necessary by the Regional Administrator. If no fish are 
purchased or received during a reporting week, a report so stating must 
be submitted.
    (ii) Exceptions. The following exceptions apply to reporting 
requirements for dealers permitted under this part:
    (A) Inshore Exempted Species, as defined in Sec.  648.2 of this 
chapter, are not required to be reported under this part;
    (B) When purchasing or receiving fish from a vessel landing in a 
port located outside of the Northeast Region (Maine, New Hampshire, 
Massachusetts, Connecticut, Rhode Island, New York, New Jersey, 
Pennsylvania, Maryland, Delaware, Virginia and North Carolina), only 
purchases or receipts of species managed by the Northeast Region under 
this part (American lobster), and part 648 of this chapter, must be 
reported. Other reporting requirements may apply to those species not 
managed by the Northeast Region, which are not affected by the 
provision; and
    (C) Dealers issued a permit for Atlantic bluefin tuna under part 
635 of this chapter are not required to report their purchases or 
receipts of Atlantic bluefin tuna under this part. Other reporting 
requirements, as specified in Sec.  635.5 of this chapter, apply to the 
receipt of Atlantic bluefin tuna.
    (2) System requirements. All persons required to submit reports 
under paragraph (n)(1) of this section are required to have the 
capability to transmit data via the Internet. To ensure compatibility 
with the reporting system and database, dealers are required to utilize 
a personal computer, in working condition, that meets the minimum 
specifications identified by NMFS. The affected public will be notified 
of the minimum specifications via a letter to all Federal lobster 
dealer permit holders.
    (3) Annual report. All persons issued a permit under this part are 
required to submit the following information on an annual basis, on 
forms supplied by the Regional Administrator: All dealers and 
processors issued a permit under this part must complete all sections 
of the Annual Processed Products Report for all species that were 
processed during the previous year. Reports must be submitted to the 
address supplied by the Regional Administrator.

[[Page 58109]]

    (o) Inspection. All persons required to submit reports under this 
section, upon the request of an authorized officer, or by an employee 
of NMFS designated by the Regional Administrator to make such 
inspections, must make immediately available for inspection copies of 
the required reports and the records upon which the reports are or will 
be based.
    (p) Record retention. Records upon which trip-level reports are 
based must be retained and be available for immediate review for a 
total of 3 years after the date of the last entry on the report. 
Dealers must retain the required records at their principal place of 
business.
    (q) Submitting dealer reports. (1) Detailed dealer reports required 
by paragraph (n)(1)(i) of this section must be received by midnight of 
the first Tuesday following the end of the reporting week. If no fish 
are purchased or received during a reporting week, the report so 
stating required under paragraph (n)(1)(i) of this section must be 
received by midnight of the first Tuesday following the end of the 
reporting week.
    (2) Dealers who want to make corrections to their trip-level 
reports via the electronic editing features may do so for up to 3 
business days following submission of the initial report. If a 
correction is needed more than 3 business days following the submission 
of the initial trip-level report, the dealer must contact NMFS directly 
to request an extension of time to make the correction.
    (3) Price and disposition information may be submitted after the 
initial detailed report, but must be received within 16 days of the end 
of the reporting week.
    (4) Annual reports for a calendar year must be postmarked or 
received by February 10 of the following year. Contact the Regional 
Administrator (see Table 1 to Sec.  600.502) for the address of NMFS 
Statistics.
    (r) Additional data and sampling. Federally permitted dealers must 
allow access to their premises and make available to an official 
designee or the Regional Administrator any fish purchased from vessels 
for the collection of biological data. Such data include, but are not 
limited to, length measurements of fish and the collection of age 
structures such as otoliths or scales.
    (s) Additional dealer reporting requirements. (1) All persons 
issued a lobster dealer permit under this part are subject to the 
reporting requirements set forth in paragraph (n) of this section, as 
well as Sec. Sec.  648.6 and 648.7 of this chapter, whichever is most 
restrictive.
    (2) [Reserved]
    4. In Sec.  697.20, paragraphs (b)(3) through (b)(7), and paragraph 
(g)(3) are revised, and paragraph (b)(8) is added, to read as follows:


Sec.  697.20  Size, harvesting and landing requirements.

* * * * *
    (b) * * *
    (3) Effective July 1, 2009, the maximum carapace length for all 
American lobster harvested in or from one or more of the EEZ Nearshore 
Management Areas 2, 4, 5, and 6 is 5\1/4\ inches (13.34 cm).
    (4) Effective July 1, 2009, 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 one or more of EEZ Nearshore Management Areas 2, 4, 5, and 6 
is 5\1/4\ inches (13.34 cm).
    (5) Effective July 1, 2009, the maximum carapace length for all 
American lobster harvested in or from EEZ Offshore Management Area 3 or 
the Outer Cape Lobster Management Area is 6\7/8\ inches (17.46 cm).
    (6) Effective July 1, 2009, 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 EEZ Offshore Management Area 3 or the Outer Cape Lobster 
Management Area is 6\7/8\ inches (17.46 cm).
    (7) Effective July 1, 2010, the maximum carapace length for all 
American lobster harvested in or from EEZ Offshore Management Area 3 or 
the Outer Cape Lobster Management Area is 6\3/4\ inches (17.15 cm).
    (8) Effective July 1, 2010, 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 EEZ Offshore Management Area 3 or the Outer Cape Lobster 
Management Area is 6\3/4\ inches (17.15 cm).
* * * * *
    (g) * * *
    (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.
* * * * *
[FR Doc. E8-23568 Filed 10-3-08; 8:45 am]
BILLING CODE 3510-22-S


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