[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Rules and Regulations]
[Pages 37530-37551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17941]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 697

[Docket No. 070717357-91069-03]
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: Final rule.

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SUMMARY:  NMFS announces new Federal American lobster (Homarus 
americanus) regulations which 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 for 
protection of egg-bearing female American lobsters in certain LCMAs.

DATES:  Effective Date: This final rule is effective August 28, 2009.
    Applicability dates: The revised broodstock protection measures 
(maximum carapace length and v-notch definition) set forth in this 
final rule in Sec.  697.20(b)(3) through Sec.  697.20(b)(6) and Sec.  
697.20(g)(3) and (4) for Areas 2, 3, 4, 5 and 6 are applicable August 
28, 2009. Broodstock protection measures relevant to the Outer Cape 
Area are applicable July 1, 2010 as set forth in Sec.  697.20(b)(7) and 
(8) and Sec.  697.20(g)(7) and (8). The weekly trip-level Federal 
lobster dealer electronic reporting requirements are applicable for all 
Federal lobster dealers beginning January 1, 2010 as set forth in Sec.  
697.6 paragraphs (n) through (s).

ADDRESSES: Copies of the American Lobster Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this regulatory action are available upon written 
request to Harold C. Mears, Director, State, Federal and constituent 
Programs Office, NMFS, 55 Great Republic Drive, Gloucester, MA 01930, 
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 
final rule may be submitted to the mailing address listed above and by 
e-mail to <a href="/cdn-cgi/l/email-protection#f5b194839c91aaa79a86819e9087b59a9897db909a85db929a83"><span class="__cf_email__" data-cfemail="fdb99c8b9499a2af928e8996988fbd92909fd398928dd39a928b">[email protected]</span></a> or fax to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION: 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). The mandatory Federal lobster dealer reporting requirement is 
consistent with the recommendations for Federal action by the 
Commission in Addendum X to Amendment 3 of the ISFMP and allows for a 
more comprehensive and consistent coastwide accounting of lobster 
harvest data to facilitate stock assessment and fishery management. 
Accordingly, effective January 1, 2010, this final rule requires all 
Federal lobster dealers to provide trip-level electronic reports on a 
weekly basis. Under the preferred alternative in the proposed rule for 
this action (70 FR 58099), the dealer reporting requirements would have 
been effective thirty days after publication of this final rule. 
However, in consideration of the public comments received on the 
reporting requirements, NMFS has deferred the effective date for 
electronic reporting for affected lobster dealers until January 1, 
2010, to provide dealers with several additional months to adjust their 
business practices and comply with these new requirements.
    In addition to expanded dealer reporting requirements, this action 
revises existing Federal lobster regulations and implements new 
requirements to support the Commission's ISFMP by adopting v-notching 
and maximum carapace length measures (together referred to as 
broodstock protection measures) in Areas 2, 3, 4, 5 and 6 (see 50 CFR 
Sec.  697.18 for descriptions and locations of all LCMAs). These 
measures are, for the most part, identical to those already enforced by 
the states. These Federal broodstock protection measures complement the 
Commission's ISFMP objectives and state regulations, thereby reducing 
confusion and facilitating enforcement and resource assessment within 
and across lobster stock and management areas.
    Specifically, for Areas 2, 4, 5 and 6, this rule implements a 
maximum carapace size restriction for both male and female American 
lobster at 5 1/4 inches (13.34 cm) and a maximum size

[[Page 37531]]

of 6 7/8 inches (17.46 cm) for offshore Area 3. These measures take 
effect thirty days after the publication of this final rule. On July 1, 
2010, the maximum carapace length regulation in Area 3 will decrease to 
6 3/4 inches (17.15 cm). Further, effective thirty days after the 
publication of this rule, Areas 2, 3, 4, 5 and 6 will be held to the 
Commission's v-notch definition which is a notch or indentation in the 
base of the flipper that is at least as deep as 1/8 inch (0.32 cm), 
with or without setal hairs. The Commission's definition revises the 
definition of a standard v-shaped notch in Sec.  697.2.
    Finally, this action expands the Commission's recommended 
broodstock protection measures to include the Outer Cape Management 
Area (Outer Cape Area/Outer Cape) to provide further opportunities to 
protect lobster broodstock and provide for a framework of consistent 
management measures across lobster stock areas. The broodstock 
protection measures for the Outer Cape Area, under the preferred 
alternative in the proposed rule, would have taken effect thirty days 
after the publication of this final rule, consistent with the 
broodstock requirements for Areas 2, 3, 4, 5 and 6. However, after 
considering the concerns of the Outer Cape lobster industry regarding 
the perceived economic impacts of these measures, and after reviewing, 
at the request of the Outer Cape industry, newly-available Outer Cape 
sea sampling data provided by the Commonwealth of Massachusetts, NMFS 
has deferred effective implementation of the Outer Cape Area broodstock 
measures until July 1, 2010, to allow affected fishers in the Outer 
Cape Area additional time to adjust to these new regulatory 
requirements. Accordingly, the revised standard v-notch definition (a 
notch or indentation in the base of the flipper that is at least as 
deep as 1/8 inch (0.32 cm), with or without setal hairs) and the 6 3/4-
inch (17.15 cm) maximum size will take effect in the Outer Cape Area on 
July 1, 2010. Until July 1, 2010, the Outer Cape Area will not have a 
maximum carapace length restriction and will remain governed by the 1/
4-inch (0.64-cm) v-notch definition in the Federal lobster regulations 
which is a straight-sided triangular cut, without setal hairs, at least 
1/4 inch (0.64 cm) in depth and tapering to a point.

Statutory Authority

    This final rule modifies the 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. It also will provide NMFS with a complete set of trip-level 
harvest data from all Federal lobster dealers for use in cooperative 
and internal policy decisions and analyses. Additionally, this action 
will enhance lobster broodstock protection, facilitate enforcement of 
lobster measures, and aid in resource assessment by revising American 
lobster maximum carapace size and v-notch requirements, consistent with 
the recommendations of the Commission in the ISFMP. Finally, this rule 
expands the curtain of protection on broodstock lobster migrating among 
lobster management areas by extending the revised maximum carapace size 
and v-notch requirements to the Outer Cape Management Area. As 
referenced in the EA for this action, the Outer Cape lobster fishery is 
categorized as fishing on a population of transient lobsters migrating 
between inshore and offshore areas. Therefore, the expansion of the 
broodstock measures in the Outer Cape Area complements those measures 
in adjacent areas which may augment long-term biological benefits on a 
multi-area and multi-stock basis and aid in resource assessment since 
the Outer Cape Area overlaps all three lobster stock areas.
    The need for action is rooted in the 2005 peer-reviewed 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. This action also will facilitate enforcement 
and resource assessment by aligning measures of different management 
areas that fish on a common lobster stock.
    A new stock assessment was completed and approved by the 
Commission's Lobster Management Board in May 2009 and released to the 
Lobster Technical Committee for recommendations on future management 
measures to address the concerns raised by the assessment. Due to the 
timing of this Federal regulatory action, the Lobster Technical 
Committee recommendations are not available for incorporation in this 
document. However, a review of the assessment information available 
when this rule was prepared suggests that the measures identified in 
this action will not be contrary to the assessment results.

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 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, NMFS revises the 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 2005 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 to fulfill the management needs of the

[[Page 37532]]

resource, and that a mandatory catch reporting system is needed. Such 
conclusions provided the impetus for Addendum X's reporting 
requirements, which initiated this action to implement the mandatory 
Federal dealer reporting requirement.
     This same 2005 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. These issues 
prompted the Commission to adopt Addendum XI, which sought to protect 
SNE broodstock lobsters by creating new maximum carapace lengths and 
implementing a more restrictive definition of a v-notch in certain 
Lobster Management Areas. Accordingly, NMFS published a proposed rule 
in the Federal Register on October 6, 2008 (73 FR 58099) which 
presented the following three independent regulatory actions for public 
comment:
    (1) Requiring all Federal lobster dealers to electronically report 
trip-level lobster landings to NMFS on a weekly basis;
    (2) Establishing 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.
    Three alternatives for each of the three proposed regulatory 
actions were analyzed in a draft Environmental Assessment (EA) and 
included: a status quo (no action) alternative; an alternative to 
implement the Commission's ISFMP recommendations in Addendum X and XI; 
and a third modified alternative which varies in certain aspects from 
the Commission recommendations, but still would be compatible with the 
Commission's ISFMP. Specifically, with respect to issue (1) - Dealer 
Reporting - the preferred alternative would have implemented weekly, 
trip-level electronic reporting requirements for all Federal lobster 
dealers within 30 days of publication of the final rule. The modified 
option allowed for a one-year delay in the implementation of the 
measure. This final rule finds a middle ground between the two options 
by requiring all Federal American lobster dealers to comply with 
electronic reporting requirements beginning several months after 
publication of this rule, effective January 1, 2010. The decision is 
based on public comments (five in favor of mandatory dealer reporting 
and four in opposition, See Comments and Responses) in response to the 
proposed rule that electronic reporting requirements may be expensive 
for dealers who do not currently own computers. The EA prepared for 
this action determined that delaying the requirements would reduce 
short-term costs of acquiring Internet service, for those who did not 
already have it, during that interim year. Additionally, a delay would 
provide more time for affected dealers to obtain the required equipment 
and otherwise adjust their business practices to accommodate electronic 
reporting. Some affected dealers may choose to offset costs by 
obtaining 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 now will be subject 
to mandatory dealer reporting on January 1, 2010. Additionally, 
delaying implementation of the dealer reporting program until January 
1, 2010 will allow for a more seamless integration of the new dealers 
into the data collection program since the effective date coincides 
with the start of the annual Federal dealer reporting period which is 
January 1. All dealer data are entered into the Standard Atlantic 
Fisheries Information System (SAFIS).
    With respect to the broodstock protection measures of this rule: 
Issue (2)- Maximum Size Restrictions; and Issue (3) - Revisions to the 
V-Notch Definition, NMFS analyzed two options in addition to the no 
action alternative. These options included the straight Commission 
recommendations that would not extend the broodstock measures to the 
Outer Cape Area and a modified alternative that would include the Outer 
Cape Area.
    NMFS received many comments from the Outer Cape industry in 
opposition to the expansion of the broodstock measures into the Outer 
Cape (See Comments and Responses). The general theme of the comments 
was that the proposed broodstock measures would affect a higher 
percentage of the catch than the NMFS analysis in the draft EA had 
determined and would, consequently, have greater economic impacts. In 
an effort to understand industry concerns with the proposed rule, NMFS 
attended an Outer Cape Lobster Conservation Management Team (LCMT) 
meeting in Chatham, MA on November 10, 2008, which occurred during the 
comment period for the proposed rule. This industry meeting, 
facilitated by the Massachusetts Division of Marine Fisheries (MA DMF), 
was widely attended by the Outer Cape lobster fishing sector as well as 
members and proxies of the Massachusetts state legislature and local 
media.
    NMFS listened to the concerns of the industry during the meeting 
and encouraged the public to submit written comments by the end of the 
comment period. At the suggestion of the industry during the meeting, 
NMFS agreed to review data from an ongoing expanded sea sampling 
program designed to further evaluate the potential impacts of the 
proposed measures on the Outer Cape lobster fishing sector. Conducted 
as a cooperative effort between MA DMF and the Outer Cape industry, the 
expanded sea sampling program in 2008 was initiated to more accurately 
document the impacts of the broodstock measures in the Outer Cape 
Management Area.
    Accordingly, in 2008, MA DMF enhanced its ongoing sea sampling 
program by doubling the number of Outer Cape sea sampling trips for the 
2008 sampling year. Normally, MA DMF takes 14 sea sampling trips from 
the Outer Cape ports of Chatham and Nauset from May through November of 
each year (seven trips from each of Chatham (southern part of the Outer 
Cape Area) and Nauset (central part of the Outer Cape Area)). However, 
for this expanded 2008 program MA DMF completed an additional 14 Outer 
Cape sea sampling trips during the sampling season. All 14 additional 
trips were conducted aboard vessels operating out of the port of 
Provincetown (northern part of the Outer Cape Area), a port not 
previously included in MA DMF's lobster sea sampling program.
    NMFS received the completed analysis of the expanded sea sampling 
program from MA DMF on February 11, 2009. Upon review of the MA DMF 
analysis (MA DMF Report) of the enhanced sea sampling program data, 
NMFS chose to support the preferred alternative to expand the 
broodstock measures into the Outer Cape Area, as the information in the 
report did not contradict the rationale for expanding the broodstock 
measures to include the Outer Cape Area. However, in consideration of 
the comments and concerns of the Outer Cape industry as

[[Page 37533]]

demonstrated through the industry meeting and in written comments, NMFS 
defers the effective date of these measures (the 6 3/4-inch (17.15-cm) 
maximum carapace length restriction and 1/8-inch (0.32 cm) v-notch 
definition) only in the Outer Cape Area for a full year (until July 1, 
2010) to allow the industry time to adjust to the new requirements.
    The decision to move ahead with the preferred alternative was 
straightforward with respect to the maximum size requirements. The NMFS 
EA analysis estimates impacts to the Outer Cape industry due to 
restricting the harvest of lobster in excess of 6 3/4 inches (17.15 cm) 
as not significant - about 0.5 percent for the trap sector and about 
5.7 percent for the non-trap sector. The MA DMF 2008 expanded sea 
sampling data analysis had similar findings. In fact, the expanded sea 
sampling data suggest that the impacts on Outer Cape lobstermen of the 
6 3/4-inch (17.15-cm) maximum size are even less than estimated in the 
NMFS analysis. Specifically, during the entire 2008 sea sampling 
season, which included 28 sampling trips aboard commercial trap fishing 
vessels in the Outer Cape Area, not one harvestable lobster was 
observed in excess of the 6 3/4-inch (17.15-cm) maximum carapace 
length. Although the MA DMF report affirms NMFS' rationale in proposing 
these new regulations, the report is not being relied upon to form the 
basis of the rationale.
    Based on the findings of the NMFS analysis with which the expanded 
MA DMF sampling program data is consistent, the impacts of the maximum 
size regulations on the Outer Cape lobster industry are not expected to 
be significant. This finding is highlighted in the MA DMF report on the 
expanded Outer Cape sea sampling program which indicated that ``very 
few marketable (non-egg bearing, non-v-notched) lobsters greater than 
the proposed maximum sizes were observed, as such the potential loss to 
the fishery...would be negligible.'' The MA DMF report further states 
that only 14 lobsters out of 85,695 lobsters sampled in the Outer Cape 
region since 1981 (0.02 percent) had a carapace length which exceeded 
the proposed maximum size of 6 3/4 inches (17.15 cm). NMFS stands 
behind its analysis of the impacts of these measures in the EA and 
reviewed the MA DMF report at the industry's request as a check on the 
accuracy of the analysis. After reviewing the MA DMF report, there is 
nothing to change the decision to expand the maximum size restrictions 
to include the Outer Cape. It should be noted that the MA DMF expanded 
survey only sampled trap vessels but the expected impacts to the non-
trap component of the Outer Cape lobster fishery are not expected to be 
significant based on the analysis conducted in the EA for this action. 
On balance, NMFS will defer the implementation of the 6 3/4-inch 
(17.15-cm) maximum size in the Outer Cape Area for a full year, until 
July 1, 2010, to allow the industry additional time to mitigate any 
adverse impacts resulting from the implementation of these broodstock 
measures on Outer Cape lobstermen.
    NMFS review of the v-notch data from the expanded MA DMF sea 
sampling program found results to be consistent with the NMFS impact 
analysis in the EA regarding the Nauset and Chatham trips. The EA 
considered MA DMF sea sampling data collected from 1999 to 2005, which 
indicated that the percentage of females with a v-notch in the Outer 
Cape Area varied between 2 percent and 4 percent of the lobsters 
observed as cited in the EA. This long-term data set is among the few 
available for assessing v-notch status for the northwest Atlantic 
lobster resource and the best available for assessing v-notch status in 
the Outer Cape Area. Despite the longevity and consistency of the data 
set, concerns with the precision of the v-notch measurement are 
notable. Specifically, MA DMF sampling protocol did not include 
quantitative measurement of notch depth. Since the notches were not 
measured, it is not known what proportion of the population of v-
notched lobsters would be legal under various v-notching definitions. 
Regardless of the notch depth, if the most conservative assumption is 
applied (essentially a zero-tolerance definition) and all the v-notched 
lobsters are considered illegal for harvest, still only about 4 percent 
of the lobster would be illegal due to the presence of any type of v-
notch. However, the percentage of illegal lobster is likely less than 4 
percent since some unknown number of notched lobsters would still be 
legal under either the 1/8-inch (0.32-cm) or 1/4-inch (0.64-cm) v-notch 
definitions.
    Since the 1/8-inch (0.32-cm) definition is more restrictive 
(assuming that all notches are made consistent with an industry 
standard of a 1/4-inch (0.64-cm) notch), it would appear that the 
impacts of this standard would be somewhat less than 4 percent, 
although somewhat higher than under a 1/4-inch (0.64-cm) standard. 
Regardless, these losses in catch are expected to be relatively low for 
the Nauset and Chatham fleets. This estimate was supported by MA DMF's 
expanded sea sampling program which considered Outer Cape v-notch 
statistics from 2005 through 2008. That data segment estimated that the 
difference in losses in catch between the current 1/4-inch (0.64-cm) v-
notch definition and the proposed 1/8-inch (0.32-cm) v-notch would fall 
between 3.8 percent to 5 percent for the Nauset and Chatham areas.
    The data in the MA DMF report on the 14 Provincetown trips revealed 
a much higher instance of v-notched female lobster, estimated at 
approximately 14.9 percent of the catch. Therefore, without considering 
the manner in which the sampling was conducted and other relevant 
factors, the report indicates that implementation of a 1/8-inch (0.32-
cm) v-notch standard could result in a 10.7 percent loss in harvest 
when compared to the 1/4-inch (0.64-cm) v-notch standard. However, this 
estimate does not accurately reflect the expected losses in catch that 
would be endured by the lobster industry if the 1/8-inch (0.32-cm) v-
notch standard is applied, in fact, the impacts are expected to be much 
less. The MA DMF report aptly points out the reasons for this over-
estimation as noted below and cautions users of the data from accepting 
the data on face value, stating ``the dramatic difference in v-notch 
rate detected by location mandates caution when applying any OCC-wide 
estimates of losses.''
    When considering the data from the Provincetown sampling trips, 
many factors must be considered. Primarily, the data reflect only one 
season's worth of sea sampling, totaling 14 trips between May and 
November, 2008. More than one third of the trips were conducted in 
November when lobsters are expected to be moving from cooling inshore 
waters to deeper offshore locations. Therefore, more notched lobsters 
may be present and observed as they move offshore from Massachusetts 
and Cape Cod Bays through the Outer Cape Area. Further, the sampling 
bias from conducting over 30 percent of the sampling trips for the 
season in a single month limits the manner in which the data can be 
interpreted and applied. More importantly, one would expect the 
incidence of v-notched lobsters in the northern portion of the Outer 
Cape Area to be higher than other parts of the Outer Cape Area since it 
is immediately adjacent to Lobster Management Area 1, which is part of 
the GOM Stock Area and subject to a mandatory v-notching requirement 
(lobstermen must v-notch and release all egg-bearing lobsters) and a 
more restrictive ``zero-tolerance'' v-notch definition. According to 
the MA DMF report, 87 percent of the sampling

[[Page 37534]]

trips out of Provincetown occurred west of 70 [deg] W. Long., the 
meridian which separates the GOM and GBK stocks, with the former on the 
west side of the meridian (NMFS Statistical Area 514) and the latter on 
the east side (NMFS Statistical Area 521). Additionally, the MA DMF 
report states that ``the highest incidence of v-notched lobster was 
observed in the ``overlap area'' around Provincetown where Area 1 
lobstermen and Outer Cape lobstermen fish side-by-side....indicating 
that the majority of the Provincetown fishery occurred within the Gulf 
of Maine Stock Unit.'' The overlap area refers to the Area 1/Outer Cap 
Overlap Area. Lobstermen who traditionally fish in Area 1 can fish in 
this overlap area under Area 1 management regulations, while lobstermen 
who fish in the Outer Cape Area can fish in the overlap under the Outer 
Cape Area management measures.
    Another important fact in assessing the extent to which the 
incidence of v-notched lobsters in the MA DMF investigation may be 
interpreted is that the sea samplers did not measure the depth of the 
v-notch of the lobsters encountered during the sea sampling trips. 
Rather, samplers categorized notches as either a sharp notch, old 
notch, or mutilated or missing flipper. In the MA DMF report, a sharp 
notch is a defined as a straight-sided v-shaped notch without setal 
hair. An old notch is defined as a notch that has endured at least one 
molt, usually more irregular in shape and often with setal hair 
present. A flipper that is missing or mutilated in a manner that could 
obscure the notch was considered by samplers as a v-notch. Therefore, 
since all such notches were not measured, the MA DMF analysis assumes 
that all old notches were deeper than 1/8 inch (0.32 cm) and therefore 
all such lobster were protected, as cited in the MA DMF report. 
However, it is expected that many of these old notches, as well as some 
subset of the mutilated lobster, would actually be legal for harvest 
under the 1/8-inch (0.32 cm) notch definition. In other words, the 
sampling design estimated the incidence of v-notch based on a zero-
tolerance definition and assumes that all notched lobster are illegal. 
The MA DMF report points out that this represents ``a worst case 
scenario'' and that the ``actual degree of protection and losses to the 
industry would be less'' than the additional 10.7 percent calculated in 
the report for the Provincetown area, based only on one season's worth 
of data (2008).
    Despite the short time series of the Provincetown v-notch data set 
and the skewed distribution of sampling trips from that port over the 
course of the season, the 2008 MA DMF data affirms the rationale for 
NMFS to carry forward with the expansion of the 1/8-inch (0.32-cm) v-
notch requirement to include the Outer Cape Area. Under the current 
scenario, fishermen in Area 1 are subject to the most restrictive zero 
tolerance v-notch definition. These fishermen are discarding lobster 
with any mark resembling a trace of a notch or any which are mutilated 
in a manner that could obscure a notch. Fishing alongside them are 
Provincetown fishermen who, prior to this rulemaking, were subject to 
the least restrictive 1/4-inch (0.64-cm) v-notch definition and allowed 
to harvest some percentage of the v-notched lobsters that the 
Commission's ISFMP, as well as Area 1 lobstermen, are trying to protect 
from harvest. Mitigating the compromising effects of inconsistent 
management measures across management areas is one of the intentions of 
this rule which has generally focused on alignment of the broodstock 
protection measures of the Outer Cape with those of Area 3 since the 
majority of the Outer Cape fishery targets the GBK stock it shares with 
Area 3. However, the 2008 data from the MA DMF expanded sampling 
program suggests that inconsistent measures may be compromising 
management of the GOM stock as well, although the short-term nature of 
this data should not be over-interpreted and is insufficient to make 
any robust determinations. The expanded MA DMF sampling data provided a 
snapshot of conditions existing at the time of observation, and 
accordingly, the MA DMF report cautioned against giving it undue 
weight. Nevertheless, even if accorded little weight, the report was 
notable in that it did nothing to contradict NMFS' findings.
    Although the MA DMF data indicate that the majority of the 
Provincetown fishery occurs on the GOM stock, they still remain part of 
the Outer Cape fishery and their continuance in this category was 
affirmed by the adoption of a common overlap area with Area 1 in the 
Commission's plan, and subsequently by NMFS for the purposes of 
consistency and cooperation. Applying the more restrictive zero-
tolerance v-notch definition to the Provincetown sector of the fishery 
may more directly assist in the conservation of the GOM stock, although 
such an assumption warrants more extensive review and evaluation. The 
scope of the analysis of the broodstock protection measures focused on 
aligning the Outer Cape with Area 3 since the majority of the Outer 
Cape and a major component of Area 3 fall within the GBK stock area. 
Given the confusion that differential management measures would cause 
within a single management area, the potential for additional economic 
impacts due to the implementation of the zero-tolerance definition, and 
the lack of confidence in a single years' worth of data (2008) for 
making such assumptions, NMFS intends to implement the 1/8-inch (0.32-
cm) standard to the entire Outer Cape Area.
    The MA DMF study shows that the impacts of the 1/8-inch (0.32 cm) 
v-notch on Nauset and Chatham fishermen are relatively consistent with 
those estimated by NMFS in the EA (3.8-5 percent loss of catch in the 
MA DMF study versus less than 4 percent in the EA based on previous MA 
DMF sea sampling time series data). At the same time, data collected in 
2008 by MA DMF indicate additional losses in Provincetown could exceed 
10 percent under an unlikely ``worst case scenario'' due to the manner 
in which the sea sampling data was collected. However, NMFS 
acknowledges the challenges referenced in the report which states that 
``the dramatic difference in v-notch rate detected by location mandates 
caution when applying any OCC-wide estimates of losses.'' Accordingly, 
NMFS maintains its intent to expand the 1/8-inch (0.32-cm) v-notch 
measure to the Outer Cape Area. However, the effective implementation 
date for Federal Outer Cape Area permit holders is deferred until July 
1, 2010, to mitigate the impacts and allow the industry additional time 
to adjust their business practices to this new requirement.

Description of the Public Process

    The actions set forth in this Final Rule have undergone extensive 
and open public notice, debate and discussion both at the Commission 
and Federal levels.

1. Commission Public Process

    Typically, this public discussion of a potential Federal lobster 
action begins within the Commission process. Specifically, the 
Commission's Lobster Board often charges its Plan Development Team or 
Plan Review Team sub-committees of the Lobster Board - to investigate 
whether the existing ISFMP needs to be revised or amended to address a 
problem or need, often as identified in a lobster stock assessment. The 
Plan Review and Plan Development Teams are typically comprised of 
personnel from state and federal agencies knowledgeable in scientific 
data, stock and fishery condition and fishery management issues. If a 
team or teams conclude that

[[Page 37535]]

management action is warranted, it will so advise the Lobster Board, 
which would then likely charge the LCMTs to develop a plan to address 
the problem or need. The LCMTs most often comprised of industry 
representatives will conduct a number of meetings open to the public 
wherein they will develop a plan or strategy, i.e., remedial measures, 
in response to the Lobster Board's request. The LCMTs then vote on the 
plan and report the results of their vote back to the Lobster Board. 
Minutes of the LCMT public meetings can be found at the Commission's 
website at http://www.asmfc.org under the ``Minutes & Meetings 
Summary'' page in the American Lobster sub-category of the Interstate 
Fishery Management heading.
    After receiving an LCMT proposal, the Commission's Lobster Board 
will often attempt to seek specialized comment from both the Lobster 
Technical Committee and Lobster Advisory Panel before the proposal is 
formally brought before the Board. The Technical Committee is comprised 
of specialists, often scientists, whose role is to provide the Lobster 
Board with specific technical or scientific information. The Advisory 
Panel is a committee of individuals with particular knowledge and 
experience in the fishery, whose role is to provide the Lobster Board 
with comment and advice. Minutes of the Technical Committee and 
Advisory Panel can be found at the Commission's website at http://www.asmfc.org under the ``Minutes & Meetings Summary'' page in the 
American Lobster sub-category of the Interstate Fishery Management 
heading.
    After receiving sub-committee advice, the Lobster Board debates the 
proposed measures in an open forum whenever the Board convenes (usually 
four times per year, one time in each of the spring, summer, fall and 
winter seasons). Meeting transcripts of the Lobster Board can be found 
at the Commission's website at http://www.asmfc.org under ``Board 
Proceedings'' on the ``Minutes & Meetings Summary'' page in the 
American Lobster sub-category of the Interstate Fishery Management 
heading. These meetings are typically scheduled months in advance and 
the public is invited to comment at every Board meeting. In the 
circumstance of an addendum, the Board will vote on potential measures 
to include in a draft addendum. Upon approving a draft addendum, the 
Lobster Board will conduct further public hearings on that draft 
addendum for any state that so requests. After conducting the public 
hearing, the Lobster Board will again convene to discuss the public 
comments, new information, and/or whatever additional matters are 
relevant. After the debate, which may or may not involve multiple 
Lobster Board meetings, additional public comment and/or requests for 
further input from the LCMTs, Technical Committee and Advisory Panel, 
the Lobster Board will vote to adopt the draft addendum, and if 
applicable, request that the Federal Government implement compatible 
regulations.
    The need for the Federal action is rooted in the 2005 peer-reviewed 
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.
    Addendum X was approved by the Board in February 2007 to augment 
and enhance fisheries-dependent and fisheries-independent data 
collection efforts at the state and Federal level and set forth an 
expanded coastwide mandatory reporting and data collection program. The 
program set coastwide standards for the submission of dealer and 
harvester reports, sea and port sampling and trawl surveys. The purpose 
of the addendum was to address the concerns of inadequate data for use 
in fishery assessments as indicated in the 2005 stock assessment peer-
review process.
    Addendum XI was released for public comment as a draft document in 
April 2007 and responded to the findings of the 2005 peer-reviewed 
stock assessment regarding the need for the development of management 
measures to address the depleted abundance, low recruitment and high 
fishing mortality rates in the SNE stock. Several states held public 
hearings on the draft addendum in April 2007 and the final addendum was 
approved by the Commission's Lobster Board in May 2007. Addendum XI 
includes a full suite of management measures designed as the SNE Stock 
Rebuilding Program. Certain measures in the Addendum XI SNE Stock 
Rebuilding Program, such as the Area 3 minimum gauge size increase and 
escape vent size increase, and two additional Area 3 trap reductions of 
2.5 percent, were implemented by NMFS in a separate rulemaking 
published in the Federal Register (72 FR 56935). The dealer reporting 
requirements and broodstock protection measures of the SNE Stock 
Rebuilding Program are addressed here in this final rule.

2. Federal Public Process

    Since the transfer of Federal lobster management in December 1999 
from the Magnuson Stevens Act, with its Federal Fishery Management 
Councils, to the Atlantic Coastal Act, with the Atlantic States Marine 
Fisheries Commission, Federal lobster action has typically been 
undertaken in response to a Commission action.
    The development of this current rulemaking began in response to the 
Commission's approval of Addenda X and XI February 2007 and May 2007, 
respectively, and the Commission's request for complementary Federal 
regulations. Since that time, NMFS has filed an Advance Notice of 
Proposed Rulemaking (ANPR) in the Federal Register (72 FR 53978, 
September 21, 2007) and a proposed rule (73 FR 58099, October 6, 2008) 
seeking public comment on the recommendations made by the Commission 
and the NMFS alternatives based on Addenda X and XI. The Commission and 
the New England and Mid-Atlantic Fishery Management Councils were also 
invited to comment and consult on the proposed rule, consistent with 
past actions, in letters dated October 6, 2008. Since the publication 
of the proposed rule, NMFS met with concerned members of the Outer Cape 
lobster industry to hear their comments. At the industry's request and 
in cooperation with the Commonwealth of Massachusetts, NMFS received 
additional information from MA DMF and considered its findings in 
determining the measures for implementation in this final rule. NMFS 
received 49 comments to its proposed Federal action, which are 
summarized below.

Comments and Responses

    The proposed rule for this action was published in the Federal 
Register on October 6, 2008 (73 FR 58099) to address the Commission's 
recommendations for Federal action in Addenda X (dealer reporting) and 
XI (broodstock protection) to Amendment 3 of the Commission's ISFMP for 
American Lobster. The proposed rule solicited public comments through 
November 20, 2008. A total of 49 comments were received. Four comments 
were received in opposition to the Federal lobster dealer electronic 
reporting requirements, while five wrote in favor of the dealer 
electronic

[[Page 37536]]

reporting requirements. Similar to those received in response to the 
ANPR for this action as addressed in the proposed rule, the comments in 
opposition to the electronic dealer reporting requirements were 
received from two lobster dealers, the State of Maine Department of 
Marine Resources (ME DMR), and a lobster fishermen's organization. The 
general theme of these comments was that mandatory weekly electronic 
reporting would add more administrative burden to affected lobster 
dealers and would be redundant since many dealers are already providing 
the data to their respective state fisheries agency.
    Thirty-two comments were received in opposition to the inclusion of 
the Outer Cape Area under the expanded broodstock protection measures. 
Seven comments were received in general support of the broodstock 
protection measures, while four individuals wrote to support the 
expansion of the broodstock measures into the Outer Cape Area. Three 
commenters opposed the broodstock protection measures in management 
areas other than the Outer Cape Area.
    Two comments opposing the maximum size requirements were received 
by a mid-Atlantic pot gear fisherman and a recreational diving group. 
Representatives of the offshore lobster fishing sector wrote in favor 
of the dealer reporting, maximum size and v-notching requirements. Two 
fishermen recommended consistent measures throughout all lobster 
management areas and one fisherman commented that more restrictive 
broodstock measures are needed coastwide.
    The significant comments and the NMFS response to each comment are 
provided here.
    Comment 1: Two 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.
    Response: NMFS understands that there might be a small amount of 
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. Generally, these requirements mirror those of state 
agencies as both NMFS and the states use the same SAFIS system (see 
Changes to Existing Regulations). By design, users meet the 
requirements of all relevant regulatory entities. On balance, NMFS 
believes that the utility of electronic reporting outweighs the 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 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, 
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.
    In adopting the mandatory electronic Federal lobster dealer 
reporting, NMFS balances the relatively small additional burden against 
the utility gained by the requirement. First, there is great utility 
for Federal managers having access to, and thus having their decisions 
guided by, up-to-date harvest information. Electronic reporting allows 
for far more expedient 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 and upon receipt, state 
employees enter in the data. Consequently, the data may not reach the 
SAFIS system until several weeks or more after a particular lobster 
fishing trip which could hamper fisheries management and assessment 
efforts and limit the availability and utility of the dataset for 
internal needs. 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. When similar 
data elements are collected in an inconsistent manner, the ability to 
efficiently utilize that information is compromised. NMFS finds it 
advantageous for its data to be collected in consistent fashion, such 
as through the use of the SAFIS system, 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 the statistical 
area and time the lobster where harvested.
    Response: The Commission's plan recommends that the dealer provide 
the statistical area where the lobster were harvested. The Final Rule 
does not implement such a requirement. NMFS has considered but rejected 
this recommendation and has not adopted a fishing area data collection 
requirement for dealers. NMFS believes that lobster harvesting 
information is best provided by the harvester, not the dealer.
    Comment 3: Some commenters commented that dealer reporting for 
lobster is not necessary since lobster is not a quota-managed species 
and the data are not needed on a weekly basis.
    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 $349 million in 2007, 
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 2005 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 has adopted a 
mandatory electronic dealer reporting

[[Page 37537]]

program for Federal dealers to complement the Commission's plan and the 
actions of the states in enhancing the quality and quantity of lobster 
fishery data to assist in the management of this important fishery.
     More and more, landings data are needed by NMFS to address not 
only lobster policy issues, but other relevant issues such as large 
whale take reduction planning, Endangered Species Act analyses, and 
economic analyses, for example. NMFS is consistently challenged with 
insufficient and questionable data and sees this as an opportunity to 
obtain a consistent data set, from its own dealers, to assist in its 
decision-making and policy analysis responsibilities for lobster 
management and other critical needs.
    Although data on lobster landings may not be needed on a weekly 
basis, weekly receipt of trip-level data from all Federal dealers is 
certainly more timely and hence, more readily available. Additionally, 
implementing a weekly reporting requirement for the affected Federal 
lobster dealers will mesh with the current requirements in place for 
all Federal seafood dealers, creating a common format across all 
Federal fisheries. The opportunity to obtain this important information 
in a consistent manner will improve its utility for internal as well as 
for cooperative management and policy needs.
    Comment 4: ME DMR responded in opposition to the dealer reporting 
measure, indicating that it would impact about 86 small dealers in 
Maine. ME DMR is collecting trip-level data from dealers on a monthly 
basis and believes that weekly 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.
    Response: NMFS understands that Maine lobster dealers have recently 
begun reporting trip level transactions to ME DMR on a monthly basis. 
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 and 
comprises a major component of the overall universe of Federal harvest 
data that currently is not readily available to NMFS in a consistent, 
reliable or easily-accessible fashion.
    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. However, that 
number is unknown. Since no additional information is available 
regarding either the number of individuals without the required 
equipment or more specific details on the costs of acquiring the 
technology, NMFS stands behind its analysis in the EA regarding the 
impacts of electronic reporting on the affected set of Federal dealers. 
As such, 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. In consideration of ME DMR's concern, 
however, NMFS re-assessed the potential costs to dealers and found that 
they are likely to be less than initially estimated (see response to 
comment 6).
    Comment 5: ME DMR and one other commenter disputed that dealers get 
a 40 percent markup on lobsters they sell and, therefore, the NMFS 
estimates of the costs of purchasing the necessary equipment as a 
percentage of gross income, based on this percentage, are inaccurate.
    Response: It is possible that many affected dealers, especially 
smaller operations, do not convey a 40-percent markup on their product. 
ME DMR made these comments based on responses to an ``informal survey'' 
of Maine dealers but it is not known how many dealers ME DMR canvassed 
or the size of their respective operations. The NMFS analysis of 
impacts is based on business transaction information acquired from 
Federal dealer data which is the best information available for 
assessing the impacts of Federal dealers. NMFS understands that this 
data may not be reflective of the entire universe of Federal lobster 
dealers which vary in size and sales volume. Consequently, if all 
Federal dealers report to NMFS in a consistent fashion, then the 
assessment of future impacts on dealers may more accurately reflect the 
overall range of affected businesses.
     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, may provide additional 
benefits to the dealer's business in ways not associated with data 
reporting.
    Comment 6: ME DMR commented that NMFS failed to account for the 
time and cost burdens to dealers associated with completing the weekly 
electronic reports and underestimated the costs associated with 
purchasing a computer and Internet service.
    Response: NMFS analyzed the costs associated with the collection of 
information requirements for weekly electronic dealer reporting. This 
analysis was completed under the authority of the Paperwork Reduction 
Act (OMB Control Number 0648-0229). NMFS based the burden estimates on 
the data available from the current pool of Federal seafood dealers who 
are already required to submit weekly electronic reports. The analysis 
estimated the reporting burden for each weekly transaction to be about 
4 minutes to populate and submit the electronic data files. The 
reporting costs are based on a respondent wage of $18.88 per hour, with 
the overall annual burden for all 148 affected dealers estimated at 539 
hours, costing $10,171. NMFS realizes that the time needed to complete 
and upload the reports may be higher for some dealers who may not be 
familiar with the electronic programs. However, NMFS staff will work 
with all dealers to assist them in meeting their reporting 
requirements, consistent with past practices.
    Although 148 Federal lobster dealers will be affected by the 
electronic dealer reporting requirement, NMFS believes that only a 
small, albeit unknown, number will need to purchase both a computer and 
acquire Internet service to comply with the new reporting standards. 
Further, only one dealer

[[Page 37538]]

commented that the costs associated with purchasing the necessary 
equipment would be too expensive. However, to further address concerns 
with costs to Federal dealers associated with acquiring the necessary 
technology to comply with electronic reporting, NMFS reassessed its 
cost estimates by investigating computer pricing in May 2009. The 
investigation revealed that the costs for a computer as presented in 
the initial NMFS analysis are probably overestimated and, more than 
likely, represent a high-end, worst-case scenario of potential cost to 
affected Federal lobster dealers. Based on the information obtained 
through the new cost investigation, a new desk-top personal computer 
system can be purchased for as little as $272. This is a price for a 
system with specifications that reflect the most current technology 
with electronic capabilities (speed and memory) which far exceed what 
is needed for the purposes of electronic dealer reporting. The pricing 
query revealed the availability of 17 models of desktop computer 
systems that range in price from $272 to $403 with sufficient 
technology such as 1.60 GHz, 1 GB RAM, 160 GB hard drive 
(www.pricescan.com). Further, it is expected that the cost of 
purchasing a used computer would likely be even less, especially since 
old computers usually require a disposal fee, prompting many who have 
upgraded their systems to attempt to sell their used computer equipment 
rather than pay for disposal. These figures reveal the potential for 
substantially lower costs than the initial NMFS estimates of about 
$580.
    NMFS also re-assessed the costs associated with Internet service, 
particularly in Maine where the majority of the affected Federal 
lobster dealers do business. The inquiry revealed that Internet service 
could be attained throughout Maine at a cost of about $20 per month. 
Even more remote, down-east locations such as Machias have access to 
Internet service providers offering dial-up Internet service for as low 
as $14.95 per month. This equates to annual Internet service costs of 
between $180 and $240, compared to the more conservative initial NMFS 
estimates of about $652 or approximately $54 per month.
    NMFS stands by its initial estimates of costs to Federal lobster 
dealers associated with the electronic reporting requirements which, on 
balance, are not perceived to be overly intrusive to the majority of 
dealers since most are likely to have a computer and Internet service 
already. However, these more recent investigations of the economic 
impacts of acquiring the computer and Internet service should not be 
overlooked and may, in fact, reflect a more current and realistic 
estimate of the costs associated with this action. Generally, in 
consideration of the more recent cost query, if one considers the cost 
of a computer to be about $400 and the annual cost of Internet service 
to be $240 (assuming the $20 per month charge and not the lowest 
possible charge) then the annual cost could be about 50 percent less 
than NMFS has estimated in the initial estimation. More specifically, 
the cost to pay in full for a brand new computer and the annual 
Internet service charge would be approximately $640 or about $53 per 
month, compared to the initial estimate of $1,232 or about $103 per 
month.
    Comment 7: ME DMR commented that some affected dealers from Maine 
may not have the appropriate software or other capabilities to upload 
the information to SAFIS.
    Response: NMFS acknowledges that some unknown, but likely small, 
number of affected dealers may not have the appropriate electronic 
capabilities at the current time to facilitate the submission of 
electronic reports. However, on balance, NMFS believes that acquiring 
the data in an electronic format will provide long-term benefits for 
the management of the resource and improve the usefulness of the data, 
consistent with the recommendations for improved coastwide fishery 
dependent data in the 2005 stock assessment peer review. Understanding 
that a subset of affected dealers may not have the necessary 
technological means, NMFS has postponed the electronic reporting 
requirement for the 148 Federal lobster dealers who previously have not 
been required to report to NMFS. The delay until January 1, 2010, of 
the weekly electronic reporting requirements, will allow these dealers 
some additional time to adjust their business practices to mitigate the 
impacts of electronic reporting. During that time, NMFS will inform the 
affected dealers of the specifics of the reporting systems. 
Additionally, due to this specific situation, affected dealers will 
have the opportunity to acquire the necessary software packages from a 
NMFS contractor at no charge to the dealer.
    NMFS is aware that the costs associated with the electronic 
reporting requirements will vary for some affected dealers, and those 
costs may be higher for some businesses than the NMFS estimates, 
although it is difficult to envision it being significantly so based 
upon the best available present information. Expanding the weekly 
electronic dealer reporting requirements to all Federal lobster dealers 
will provide a consistent framework for Federal dealer data submission 
to assist NMFS in fisheries policy decisions and will facilitate error 
checking and reporting compliance checks. On balance, NMFS anticipates 
that the longer term benefits will outweigh the shorter term impacts. 
Further, the transition to an electronic reporting format is expected 
to ease the cost and time burdens to dealers, states and the Federal 
Government as users become more adept at electronic reporting and if 
states decide to accept Federal dealer reports in satisfaction of state 
requirements for Federal dealers with state dealer permits.
    Comment 8: A representative of a federally permitted wholesale 
lobster dealer who purchases lobster exclusively from other dealers 
requested that NMFS clarify whether the trip level reporting 
requirements would apply to dealer-to-dealer transactions.
    Response: The trip-level electronic dealer reporting requirements 
apply to first-point-of-sale transactions between federally permitted 
lobster vessels and federal lobster dealers. The trip level information 
is reflected in the dealer reports which would document the dealer's 
purchase from each vessel. Lobster sold by those dealers to other 
dealers or to other establishments would not need to be reported by 
either the dealer or the recipient of the lobsters since the purchases 
would already be accounted for.
    Comment 9: Two dealers from Maine responded that the data NMFS 
collects from a mandatory dealer reporting program will be flawed 
because the data set will not include the several hundred dealers that 
have state dealer licenses but no Federal dealer permit. Similarly, ME 
DMR quoted the NMFS proposed rule for this action wherein it states 
that NMFS is proposing that all Federal dealers report because such a 
requirement would ``...assist in providing a more comprehensive and 
consistent coastwide accounting of lobster harvest data...''. ME DMR 
and the dealers who commented point out that, in spite of mandatory 
reporting for Federal permit holders, NMFS will not obtain a 
comprehensive data set of lobster landings because the requirements 
fail to include lobster dealers with only a state and not a federal 
dealer permit and thus not be required to report.
    Response: To clarify, NMFS intends to obtain a ``comprehensive and 
consistent'' set of electronic data from all Federal dealers, not all 
dealers coast wide. The intent of this Federal data

[[Page 37539]]

collection program is to obtain data on lobster purchased by Federal 
dealers, a statistic that is not currently available to NMFS in a 
simple, common, or real-time capacity. NMFS is not using the data to 
estimate the overall coastwide catch, although a consistent and 
commonly reported Federal dealer dataset will certainly assist in stock 
assessments and other resource-wide needs. The states will continue to 
provide the data from state-only dealers into the SAFIS system which is 
designed to hold the data for all lobster landed coastwide and used for 
the stock assessments and other cooperative interjurisdictional 
management purposes. Overall, a consistent Federal lobster dealer 
reporting system will improve the data available to NMFS and will 
enhance its utility for internal and shared management and policy 
purposes.
    NMFS is implementing the electronic dealer reporting requirement 
because, under the current scenario, NMFS does not have comprehensive, 
real-time data on lobster catch from either the full complement of 
Federal harvesters or Federal dealers readily available in a consistent 
format. Since the Federal reporting requirements are currently 
determined by the type of permits a vessel or dealer holds, and not 
mandated by a random stratified or other statistically sound means, 
extrapolating the data from a portion of the industry to derive total 
coast-wide Federal landings, landings by area or other useful 
statistics is difficult to accomplish with certainty.
    Mandating dealer reports from all Federal lobster dealers will 
address a gap in the current Federal catch data resulting from a lack 
of mandatory vessel and dealer reporting. About 61 percent of all 
Federal lobster vessels report their landings on a trip-by-trip basis 
to NMFS through the Federal Vessel Trip Report (VTR) system and about 
71 percent of Federal dealers report electronically to NMFS. However, 
at any given time, NMFS does not have an internal data set that fully 
accounts for current lobster purchases by dealers from Federal vessels. 
Specifically, 77 percent (about 1,000 lobster vessels) of the Federal 
lobster vessels which are not required to report landings to NMFS 
because they hold only a Federal lobster permit and no other federal 
permits, hail from Maine ports. Moreover, more than half of the Federal 
lobster dealers who are not reporting are from Maine. Therefore, this 
represents a component of both the harvester and dealer sectors from 
the most prolific lobster-producing state that is not reporting 
landings to NMFS. NMFS eventually can access this data through the 
SAFIS system, but only after it is sent to ME DMR by the dealers on a 
monthly basis, keypunched into an electronic system by ME DMR staff and 
then, at some later date, uploaded onto SAFIS. The time lag and 
inconsistency in reporting delays the availability of the data and 
decreases its utility in management and policy decisions.
    Comment 10: One lobster industry association wrote in favor of the 
broodstock protection measures, including the expansion of these 
measures to the Outer Cape Management Area. The association, 
representing a large portion of both the offshore and coastal lobster 
industry approves of these measures because of the benefits of 
protecting large broodstock lobsters, and because including the Outer 
Cape will provide additional benefits by protecting lobsters that 
migrate in and out of the Outer Cape Area.
    Response: NMFS agrees and believes that the broodstock measures set 
forth in this final rule provide a balanced approach for protecting 
lobster broodstock across and within management and stock areas. 
Further, the measures will complement the Commission's plan and address 
efforts to improve broodstock protection as recommended in the 2005 
stock assessment peer review.
    Comment 11: Several Area 3 lobstermen and a lobster industry 
association representing offshore lobstermen wrote in favor of 
mandatory dealer reporting, the modified v-notch definition and the 
Area 3 maximum size requirements.
    Response: NMFS agrees and believes that the maximum size and 
broodstock protection measures provide a measure of protection to GBK 
and SNE lobster broodstock with minimal impact to the industry. These 
measures will also facilitate enforcement and resource evaluation 
efforts by aligning management measures on a stock-wide basis. 
Electronic trip-level reporting for Federal dealers will assist NMFS in 
its role in managing the fishery and will improve the quality of 
Federal lobster data for internal and cooperative management purposes.
    Comment 12: One Area 1 lobsterman agreed with the broodstock 
protection measures established in this final rule but recommended even 
more restrictive measures such as a 5-inch (12.7-cm) maximum size and a 
zero-tolerance v-notch requirement coast-wide. A mid-Atlantic 
lobsterman who fishes in Area 4 is opposed to the implementation of a 
more restrictive maximum size requirement for that area because it will 
add to the numerous restrictions already in place. Specifically, the 
maximum size in Area 4 will decrease from 5 1/2 inches (13.97 cm) to 5 
1/4 inches (13.34 cm) and will now include both male and female 
lobster. Finally, one lobsterman recommended that a 6-inch (15.24-cm) 
maximum size be implemented coastwide.
    Response: NMFS understands the view points on all sides of this 
issue as expressed by these commenters. One commenter believes even 
more stringent regulations are necessary, another feels that the 
fishery is already too restricted, and a third states the need for a 
consistent maximum size coastwide.
    Lobster management is complicated by several factors. First, it 
requires the management of three distinct stock units, each with its 
own stock rebuilding needs. Second, these stock areas include either 
all, or portions, of multiple management areas. There are multiple 
jurisdictions - both state and Federal - which must implement and 
enforce the differential area-specific management measures in place in 
the Commission's plan. Additionally, there are several different 
sectors of the fishery - a nearshore fishery, offshore fishery, a 
directed trap fishery, and multiple non-trap sectors that rely on 
lobster as a bycatch. All of these important factors influence and 
complicate the management of the lobster resource.
    Overall, NMFS embraces the concept of cooperative management and 
the area-based management of the lobster fishery. This concept allows 
stakeholders to have input in how their segment of the fishery is 
managed. However, a balance must be achieved that allows for the 
responsible management of the resource in consideration of the impacts 
on the industry. On balance, given the multi-faceted nature of the 
industry, NMFS believes that the broodstock measures in this final rule 
will best complement Addendum XI of the Commission's plan which is 
intended to protect lobster and enhance the SNE stock. With this rule, 
affected management areas will have a maximum size that corresponds to 
the needs of the resource and the industry working in those areas, 
consistent with limits already in place and enforced at the state 
level. Although broodstock measures are expanded to the Outer Cape Area 
beyond the scope of the Commission's plan, NMFS believes that these 
measures complement the plan, will benefit the resource and will 
facilitate management and enforcement efforts within and across stock 
and management areas since both the Outer Cape and Area 3 overlap into 
all three stock areas.

[[Page 37540]]

    Comment 13: Thirty-two commenters wrote in opposition to the 
expansion of the broodstock protection measures into the Outer Cape 
lobster management area. Among the reasons for the opposition, the 
commenters stated that the estimates for impacts in catch by NMFS were 
underestimated. Some commenters suggested that the since the broodstock 
measures were not part of those approved in the Commission's plan for 
the Outer Cape Area, their inclusion in this final rule undermines the 
utility and integrity of the LCMT process.
    Response: NMFS used the best available data to determine the 
biological, social and economic impacts associated with this action. 
The impact estimates were largely based on v-notching and sea sampling 
data collected consistently in the Outer Cape Area since 1981 by the MA 
DMF with industry cooperation. As necessary, NMFS observer data and 
other relevant research was referenced to estimate the impacts of the 
broodstock measures. At the industry's request, more recent and 
expanded sea sampling data from the Outer Cape was also considered in 
this final rule.
    Upon review of the additional data MA DMF sea sampling data, there 
was no information to significantly alter the basis for selection of 
the preferred alternatives or the expansion of the broodstock measures 
to the Outer Cape Area. The maximum size data from the MA DMF report 
indicated that no lobsters over the intended 6 3/4-inch (17.15-cm) 
maximum size were encountered during any of the 2008 sea sampling 
trips.
    Certainly, the information regarding the estimates of the v-notch 
in the Provincetown fleet due to the location of the fishing grounds 
largely within Area 1 was notable, suggesting a higher proportion of v-
notched lobster than in the more southerly parts of the Outer Cape 
Area. In fact, this component of the data underscored the relevance of 
consistent protections for broodstock lobster across management areas 
sharing a common stock; in this case the GOM stock (see response to 
Comment 14). The limitations of the Provincetown data such as its short 
time series, lack of measured v-notches, and the strong words of 
caution in the MA DMF report relevant to its application across the 
entire Outer Cape Area limit its utility in forming any significant 
conclusions. Thus the additional MA DMF sea sampling data on the 
Provincetown fleet is not sufficient to cause NMFS to implement either 
more restrictive v-notch measures commensurate with those in the GOM 
stock area. Nor is it sufficient to justify less restrictive v-notch 
measures due to the potential for higher rates of v-notched lobster and 
decreased landings. Maintaining the initial intent to implement the 1/
8-inch (0.32-cm) v-notch will allow for consistency within the Outer 
Cape Area itself as well as across the GBK stock area. It will also 
provide some additional level of protection to lobster in the GOM 
sector of the Outer Cape fishery beyond the status quo, albeit not as 
extensive as those imparted upon Area 1 fishermen.
    NMFS acknowledges that expansion of the broodstock measures to the 
Outer Cape Area was not part of the Commission's plan and not 
recommended for implementation by the Outer Cape LCMT, but that does 
not mean that NMFS must implement only Commission-sanctioned management 
measures. Section 803(b) of the Atlantic Coastal Act states that the 
Secretary of Commerce may implement regulations to govern fishing in 
federal waters that are both compatible with the effective 
implementation of a coastal fishery management plan (in this case, the 
Commission's ISFMP) and consistent with the national standards set 
forth in the Magnuson-Stevens Act. As such, NMFS is obligated to 
support the effective implementation of the Commission's lobster plan 
but retains the authority to enact compatible regulations in Federal 
waters as long as those regulations are consistent with the MSA 
National Standards. Therefore, even though the broodstock measures were 
not part of the Outer Cape component of the Commission's plan, NMFS 
believes, based on the analysis of the best available and most recent 
data, that the expansion of the broodstock measures to the Outer Cape 
Area will support the Commission's intent to protect lobster broodstock 
in the SNE stock areas as intended in Addendum XI and will extend that 
barrier of protection to include the GBK stock area. NMFS further 
acknowledges that the LCMTs serve a valuable role in recommended 
measures which reflect the fishing practices and nuances of their 
respective fishing communities and the associated lobster resource. 
However, this is an advisory role and NMFS maintains the discretion to 
enact regulations to support the Commission's plan. See Description of 
the Public Process under SUPPLEMENTARY INFORMATION for more details on 
the role of the LCMTs, NMFS and the Commission. Furthermore, NMFS 
listened to the industry, specifically the Outer Cape LCMT, waiting to 
review and consider the expanded 2008 MA DMF sea sampling data before 
making a final decision on the management measures associated with this 
rulemaking. NMFS does not take lightly the advice of the LCMTs and 
other industry advisors as demonstrated in the consideration of the 
expanded Outer Cape data in the evaluation of this Final Rule.
    Comment 14: A Massachusetts Congressman commented that NMFS should 
postpone the broodstock rule changes for six months and form a working 
group consisting of NMFS, state and industry representatives to further 
assess the impacts of these measures on the Outer Cape lobster 
industry. Similarly, commenters representing the Outer Cape lobster 
industry requested that NMFS review 2008 sea sampling data collected by 
the MA DMF to better assess the economic impacts resulting from this 
final rule.
    Response: NMFS agrees and postponed the rulemaking to allow for the 
review of additional sea sampling data, which was not made available by 
MA DMF until February 2009. In consideration of that data and public 
comments, NMFS has postponed action in the Outer Cape for a full year 
to allow the industry to adjust to the new requirements.
    As explained in detail in the Background section of this final 
rule, NMFS staff attended a meeting consisting of Outer Cape 
lobstermen, a representative of the MA DMF, and representatives of the 
state legislature and local media in Chatham, MA on November 10, 2008. 
NMFS listened to the concerns of the industry and explained the 
rationale for the proposed broodstock protection measures. Many in 
attendance stated that the NMFS estimates of lost catch resulting from 
the expansion of the broodstock measures into the Outer Cape area were 
understated and warranted further investigation. The industry commented 
that more recent sea sampling in the Outer Cape area was underway to 
more specifically address the impacts of these measures on the Outer 
Cape lobster fleet and requested that NMFS consider this new data when 
determining the course of the final rule.
    Upon review of the expanded sea sampling data, NMFS found nothing 
to suggest that a 6 3/4-inch (17.15-cm) maximum size would 
substantially impact landings in the Outer Cape lobster fishery. In 
fact, review of the MA DMF expanded sea sampling data revealed that the 
impacts could be even less than initially determined in the NMFS EA for 
this action. Similarly, the findings of the expanded MA DMF sea 
sampling data collection program were

[[Page 37541]]

consistent with the NMFS estimates for catch reductions associated with 
the implementation of a 1/8-inch (0.32-cm) v-notch standard for the 
Nauset and Chatham regions of the Outer Cape.
    The data collected during the 14 sea sampling trips out of 
Provincetown provided an interesting perspective on the nature of the 
lobster fishery in the northern portion of the Outer Cape Area. 
Specifically, the MA DMF expanded study indicates that the Provincetown 
fleet is essentially fishing on the GOM lobster stock and the majority 
of the sea sampling trips (87 percent) occurred in the Outer Cape/Area 
1 overlap area, where fishermen from these two adjacent management 
areas fish side by side but are subject to different maximum size and 
v-notch standards. Under the current regulatory framework, Area 1 
lobstermen are subjected to more restrictive maximum carapace length 
and v-notching requirements than those in the Outer Cape Area. This 
phenomenon highlights one of the intentions of this rulemaking which 
aims to provide a more consistent and enforceable set of broodstock 
measures within and across management areas, especially among those 
areas which fish on a common lobster stock. Although it appears that a 
large proportion of Provincetown's lobster fishery may involve the GOM 
stock, NMFS did not fully analyze the impacts of applying Area 1 
broodstock measures to that segment of the Outer Cape fishery. 
Limitations in the MA DMF sampling design as illustrated in the MA DMF 
report caution the use of this data for making assumptions on the 
entire Outer Cape Area. It is expected that this part of the Outer Cape 
Area would have a higher instance of v-notched lobster due to its 
overlap with the Gulf of Maine Area 1 fishery wherein Area 1 lobstermen 
are required to v-notch all egg-bearing lobsters and are subject to a 
more restrictive zero-tolerance v-notch definition.
    Provincetown fishermen are likely to endure more impacts due to the 
1/8-inch (0.32-cm) v-notch requirements than are fellow lobstermen in 
more southerly portions of the Outer Cape Area. In contrast, the 
impacts of this rule are likely to be far less than if the northern 
portion of the Outer Cape were subject to the Area 1 broodstock 
measures. On balance, and given the uncertainties associated with one 
year's worth of sampling data, but also considering the potentially 
higher losses in catches for the northern portion of the Outer Cape 
Area, NMFS has deferred the effective implementation of the 1/8-inch 
(0.32-cm) v-notch standard for the Outer Cape until July 1, 2010.
    Comment 15: Two state legislators and some industry commenters 
wrote in opposition to the expansion of the broodstock measures into 
the Outer Cape Area, stating that the measures could result in a 30-
percent loss in catch for the Outer Cape fleet.
    Response: Initial estimates from the EA, based on NMFS observer 
data, indicate that less than 5.7 percent of the lobster harvested by 
non-trap vessels in the GBK stock area is larger than the proposed 
maximum carapace length of 6 3/4 inches (17.15 cm), while only about 
0.5 percent of the trap fishery catch is expected to be impacted in the 
GBK portion of the Outer Cape. Review of the 2008 expanded sea sampling 
data provided by the MA DMF revealed similar results. In fact, in 28 
sea sampling trips - during the entire 2008 sea sampling season - not 
one lobster was observed with a carapace length in excess of 6 3/4 
inches (17.15 cm).
    NMFS agrees that Outer Cape lobstermen are relying heavily on 
``large'' lobsters as the Outer Cape is comprised of individual lobster 
that are larger, on average, than the minimum legal size. This trend 
has been documented by MA DMF researchers as cited in the EA. As such, 
the Outer Cape Area is known for generally landing a ``larger-sized'' 
lobster. However, lobstermen, in the general course of their fishing 
operations, are likely only measuring lobsters against the legal 
lobster minimum size gauge and are not measuring the actual carapace 
length of the lobsters. Until now, lobstermen in the Outer Cape Area 
have not had a maximum size requirement and have needed only to assure 
that the lobsters they harvest are larger than the minimum size. 
Therefore, many of the lobsters they encounter at sea and believe to be 
over 6 3/4 inches (17.15 cm) may not be that large and may remain legal 
for harvest under the new maximum size requirements. Notably, any 
lobster with a carapace measuring more than 5 inches (12.7 cm) may be 
considered a ``large'' lobster and without actually measuring a 
lobster, it is difficult to estimate its actual carapace length. This 
could lead to misconceptions among the fleet of the actual impacts in 
terms of lost catch resulting from a 6 3/4-inch (17.15-cm) maximum 
carapace length regulation.
    When analyzing the potential impacts of a maximum size restriction 
for lobster harvested in the Outer Cape, NMFS chose the standard equal 
to that implemented for Area 3, since both areas are largely within the 
GBK stock area, although both areas overlap all three stock areas. Area 
3 is subject to these management measures as part of the Commission's 
SNE stock rebuilding initiatives and including the Outer Cape Area will 
ensure that stock protection measures occurring in Area 3 and other 
areas will not be undermined due to a lack of consistent measures in 
the Outer Cape Area which shares all three stocks with Area 3.
    Based on observer data, nearly 17 percent of the lobsters 
encountered in GBK traps were between 5 inches (12.7 cm) and 6 3/4 
inches (17.15-cm) carapace length, and this was true for about 41 
percent of the non-trap observances of lobster in GBK. NMFS considered 
this and concluded that a 5-inch (12.7-cm) maximum size would be too 
restrictive on the Outer Cape fishery and inconsistent with the 
management measures set forth for the GBK stock, which accounts for the 
largest component of the Outer Cape Area.
    Comment 16: MA DMF stated that they do not dispute the reasons for 
the expansion of the broodstock measures into the Outer Cape fishery 
because doing so improves regulatory consistency and compliance and 
would provide protection to GBK lobster which is the dominant stock in 
the Outer Cape Area; a stock protected by similar measures in Area 3. 
MA DMF cautioned that this action could immediately impact Outer Cape 
lobstermen, especially those in the non-trap sector, and recommended 
that NMFS postpone any final action until the expanded Outer Cape sea 
sampling data is considered.
    Response: NMFS agrees. Review of the expanded sea sampling data 
provided perspective on the evaluation of the impacts of these new 
measures to the trap sector of the fishery but the MA DMF 
investigations did not include any additional data on the non-trap 
fishery. As previously stated, NMFS expects the resulting losses in 
catch to be higher for the non-trap fishery, consistent with the 
estimations in the NMFS EA for this action.
    Comment 17: The two state legislators indicate that the measures 
have no basis in science, citing Section 4.2.3.5 of the EA which 
states, in part, ``...there are no expected impacts or benefits to 
protected resources directly attributable to the maximum lobster size 
requirements...'', and Section 4.3.3.1 which states, ``Limited data are 
available regarding the number or percentage of lobster that may be 
conserved if the more restrictive v-notch were to expand into the Outer 
Cape Area...broodstock measures have an inherent uncertainty since so 
many environmental factors affect larval

[[Page 37542]]

survival...and recruitment....these factors...make it difficult to 
assure Outer Cape Area participants a stake in the economic benefits 
that would accrue due to the proposed broodstock measures.''
    Response: As a preliminary matter, given the low observance rate of 
oversized lobsters present in Outer Cape traps over the years as 
highlighted by the recently enhanced MA DMF sea sampling program data, 
some may question the biological need for this management measure. 
However, the inclusion of the measure is consistent with that for the 
offshore fishery and could protect some lobster that migrate inshore 
from Area 3. Aligning the Outer Cape broodstock measures with those in 
Area 3 is reasonable given the fact that both areas overlap all three 
stock areas and rely mostly on the GBK stock. Additionally, the 
inclusion of the maximum size limit to the Outer Cape Area would reduce 
confusion and facilitate enforcement. Equating a maximum size in the 
Outer Cape to that of Area 1 (5 inches (12.7 cm)) would be much more 
restrictive to the industry as NMFS observer data indicate that over 16 
percent of the trap harvest and about 41 percent of the non-trap 
lobster harvested in the GBK stock area fall between 5 inches (12.7 cm) 
and 6 3/4 inches (17.15 cm) carapace length.
    To clarify with respect to Section 4.2.3.5, ``protected resources'' 
is a term of art that relates to animals protected under either or both 
of the Marine Mammal Protection Act and Endangered Species Act. 
Therefore, this excerpt from the EA indicates, quite simply, that the 
imposition of a maximum size requirement in the Outer Cape Area is not 
expected to impact whales or other marine mammals, sea turtles or any 
species granted special statutory protection.
    Regarding Section 4.3.3.1, NMFS agrees that there is little 
information on the percentage of lobster that may be conserved if the 
more restrictive v-notch definition is applied to the Outer Cape. The 
broodstock measures are intended to protect lobster broodstock which 
are known to travel in and out of the Outer Cape Area. Therefore, as 
the referenced passage suggests, the broodstock measures may benefit 
the lobster on a stock-wide or regional level but there is no way to 
guarantee or equate any such benefits directly to the Outer Cape Area. 
The same is true for Area 3, since lobsters in that area may move in 
and out of the Outer Cape Area and elsewhere. Therefore, given the 
propensity of lobsters to migrate across management and stock areas, 
these measures will assure consistent application on a stock-wide 
basis.
    Comment 18: Some Outer Cape industry members expressed concerns 
that the vessels sampled by MA DMF in the expanded sea sampling program 
are biased against the harvest of larger lobster since these vessels 
fish traps with smaller entrance heads than are routinely deployed by 
Outer Cape fishermen.
    Response: MA DMF staff did not measure the entrance heads on the 
traps fished during the sea sampling trips so there is no way of 
verifying this statistic, and thus no means of considering it in the 
analysis of management alternatives. MA DMF researchers have 
determined, based on 27 years of sea sampling data that, unlike 
surrounding management areas, more than 90 percent of the total catch 
in the Outer Cape Area is comprised of individuals that are larger on 
average than the minimum legal size. Accordingly, the Outer Cape Area 
is known for generally landing a ``larger-sized'' lobster. Because of 
this areal trend, there is no reason to expect that Outer Cape 
lobstermen would fish with traps that do not select for larger 
lobsters. This does not mean that larger lobster are not present in the 
Outer Cape Area, although MA DMF sea sampling data since 1981 indicates 
that a relatively low percentage of lobsters over 6 3/4 inches (17.15 
cm) are caught in traps. Consequently, as indicated by a review of the 
NMFS observer data for GBK, the non-trap fishery is expected to suffer 
more losses due to the maximum size regulations than the trap fishery 
since non-trap gears are not as size selective and this sector of the 
industry may high-grade the catch over the course of a fishing trip, 
selectively retaining the largest lobsters caught.
    Comment 19: A commercial lobster fishing industry association 
commented in favor of the proposed maximum size and v-notching 
requirements as described in the proposed rule, including the expansion 
of those measures into the Outer Cape Area.
    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 Area under the maximum size and v-notching requirements as 
proposed, some, albeit difficult to quantify, 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 Area that could occur if 
that area remained the only management area not governed by a maximum 
size requirement and bound to a less restrictive definition of a legal 
v-notch.
    Comment 20: An Outer Cape lobster fisherman wrote in favor of 
expansion of the maximum size requirements into the Outer Cape Area, 
specifying that the maximum carapace lengths consistent with those 
established for the offshore fishery, are appropriate. The commenter 
added that the maximum size will protect large lobster and accordingly, 
foster recruitment, and may help to increase the lobster price by 
lowering the supply of large lobsters on the market.
    Response: NMFS agrees that applying the maximum sizes to the Outer 
Cape, consistent with those for Area 3, is appropriate given that Area 
3 and a large component of the Outer Cape Area fall within the GBK 
stock area.
    Expanding the Area 3 maximum size requirements to the Outer Cape 
Area will support efforts to protect broodstock on a stock-wide basis, 
as the Outer Cape Area is known as a corridor for lobster moving 
between inshore and offshore areas and between stock and management 
areas. As such, this action will limit 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 after transiting 
into another area. In addition, at-sea enforcement would be 
significantly enhanced if the proposed broodstock measures are 
implemented in the relevant lobster management areas.
    Comment 21: 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: NMFS acknowledged the recreational dive industry's 
concerns about the impacts of maximum size regulations in Areas 4 and 5 
beginning with a prior Federal rulemaking in response to the 
Commission's recommendations in Addenda II and III.

[[Page 37543]]

Those addenda required the states to implement a maximum carapace size 
for the first time in Area 4 and Area 5 of 5 1/4 inches (13.34 cm) and 
5 1/2 inches (13.97 cm) respectively, pertaining only to female 
lobster. In evaluating the impacts of these measures, NMFS responded to 
the concerns of the mid-Atlantic recreational dive fishery which tends 
to target large ``trophy lobsters'' on wreck sites aboard charter and 
party vessels. It was determined by canvassing state agencies that an 
extremely low number of lobster in excess of these new maximum sizes 
would be taken by the recreational dive sector, considering that most 
oversized lobsters are likely taken in the deeper offshore areas along 
the continental shelf in excess of 150 feet (46 meters) which is beyond 
the depth range of the divers. Consequently, in consideration of the 
dive industry's concerns and given the small chance that a substantial 
number of oversized lobsters would be taken in these management areas 
by the dive sector, the NMFS final rule on this issue (71 FR 13027) 
allowed recreational divers to possess one female lobster per trip in 
excess of the maximum carapace length in Area 4 and Area 5. Since then, 
the Commission adopted the more stringent maximum sizes of Addendum XI 
which revised the maximum carapace measures for Area 4 and 5 to be 
consistent at 5 1/4 inches (13.34 cm) and pertain both male and female 
lobster. Once these regulations became effective at the state level, 
the more restrictive state regulations negated the standing Federal 
allowance for recreational divers.
    Although NMFS had acknowledged the relatively minimal impacts on 
the lobster resource associated with allowing the harvest of a single 
trophy lobster per recreational dive trip, NMFS believes that revising 
the maximum sizes in Areas 4 and 5 is the best alternative. Given the 
strong recommendations for broodstock protection in SNE in the 2005 
stock assessment peer review, and the continued poor condition of the 
SNE stock, NMFS will implement measures that remain consistent with 
those required under the Commission's plan.
    Although NMFS acknowledges that the proposed regulation 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 final 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.
    Comment 22: Some commenters say that the Outer Cape Area is meeting 
its conservation goals and this final rule will cause unnecessary 
financial hardship for Outer Cape fishermen. Further, some dissenters 
state that the Outer Cape industry did not know about this issue prior 
to the publication of the proposed rule.
    Response: Outer Cape lobstermen fish primarily on the GOM and GBK 
lobster stocks. These two stocks tend to be stable, but the 2005 stock 
assessment raised concerns about high fishing effort and high 
dependence on newly-recruited lobster which could have impacts on the 
future stability of these stocks despite relatively high landings. The 
Outer Cape Area does have an approved effort management plan based on 
state-level historical participation under the Commission's ISFMP. 
However, the MA DMF expanded sea sampling data from 2008 brings to 
light the possibility that a component of the Outer Cape fishery is 
occurring predominantly in statistical area 514, which is part of the 
GOM stock. Therefore, it is unknown whether the Outer Cape effort 
control measures are sufficient in addressing the effort issue in the 
GOM stock area. Statistical area 514 was identified in the 2005 stock 
assessment as an area of concern due to extremely high lobster trap 
fishing effort. Further, from a broodstock perspective, the Outer Cape 
is the only management area that does not have any broodstock 
protection measures in place. Given that the Outer Cape Area straddles 
all three lobster stocks and is a known migratory pathway for lobster 
from other management areas with broodstock protection, it is 
reasonable to apply some consistent standard to the Outer Cape Area. 
Failing to do so could undermine the ongoing broodstock protection 
measures in place in adjacent management areas, affecting multiple 
stocks. NMFS has applied the more liberal standards consistent with the 
Area 3 offshore fishery since the Outer Cape is known to fish on a 
larger-sized lobster and the majority of the Outer Cape Area resides 
within the GBK stock area shared by both the Outer Cape and Area 3.
    The commenters also state that the measures could result in undue 
financial hardship. NMFS expects that the Outer Cape lobster industry 
will be impacted by this measure but, on balance, believes that the 
stock-wide broodstock protection, enforcement and resource assessment 
benefits outweigh the financial impacts. The impacts as estimated in 
the EA were supported after review of the MA DMF expanded 2008 sea 
sampling data. The economic impacts are discussed in more detail in the 
SUPPLEMENTARY INFORMATION section and under Economic Impacts of the 
Selected Actions in the Classification section. NMFS has deferred the 
implementation of these measures until July 1, 2010 to offset any 
economic impacts and allow the industry more time to adjust to the new 
regulations.
    NMFS heard the concerns of the Outer Cape industry at the November 
10, 2008, LCMT meeting in Chatham, MA. NMFS staff addressed this 
concern and stated that the general scope of measures was initially 
announced in the ANPR for this action wherein NMFS notified the public 
that broodstock measures related to the recommendations of the 
Commission in Addendum XI were being considered. The ANPR and proposed 
rule for this action were posted on the NMFS website along with a 
notice of availability informing the public of this action and how to 
comment and obtain copies of the relevant documents. Some in attendance 
stated that they are normally notified by mail of such actions. NMFS 
does not contact permit holders by mail regarding proposed rules or 
ANPR publications. However, NMFS does have an email and fax contact 
list for such actions. NMFS received the contact information of those 
in attendance expressing interest for electronic notification and NMFS 
has included these individuals on the list. Further, it should be 
stated that the Fishery Management Councils, the Commission, state 
agencies, and a wide range of fishermen's organizations and media 
contacts were notified of prior publications relevant to this action.
    Comment 23: One individual commented that the v-notch requirements 
make the lobster industry more inefficient by increasing the discard 
rate and requiring harvesters to spend more money on bait, fuel, labor 
and capital. The commenter suggests

[[Page 37544]]

that more effective alternatives such as catch quotas or effort 
limitations be implemented to control fishing effort at the desired 
fishing mortality rate.
    Response: The commenter here suggests a paradigm shift in overall 
management theory wherein management would focus on input controls 
(e.g., trap numbers, limited entry) rather than output controls (gauge 
size, escape vent size requirements). The relative merit to such a 
theory is the subject of ongoing discussion within industry, academic 
and management circles. However, the Commission's plan does consider 
effort as part of the coast-wide lobster fishery management program. 
The Outer Cape industry has already instituted such a plan as 
facilitated by the MA DMF which has allocated vessel specific trap 
allocations to qualified Outer Cape lobstermen. Similar programs are in 
place at the state level concerning the SNE stock and NMFS is in 
rulemaking now to address limited entry and trap transferability in 
multiple management areas, including the Outer Cape, as recommended by 
the Commission. Effort control is an important component to assuring 
both economic and biological sustainability with respect to the lobster 
industry and the resource. Output controls are also important and the 
two work hand-in-hand by controlling both inputs and outputs in the 
fishery. However, with respect to this action, the commenter's approach 
may fall beyond the scope of the present action, although NMFS welcomes 
such comments and will continue to monitor, and as appropriate, 
participate in discussions on ways to improve management of the lobster 
resource.

Changes From the Proposed Rule

    The following minor changes were made to the regulatory text since 
the publication of the proposed rule to reflect the timing adjustments 
made to the implementation dates of the various regulations based on 
industry concerns and to clarify the revised definition of a standard 
v-shaped notch.

Edit 1

    This final rule modifies the wording in the definition of a 
standard v-shaped notch from that provided in the regulatory text of 
the proposed rule. The definition in the proposed rule read, ``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.'' The wording was 
modified in the final rule to match the Commission's recommended 
wording in Addendum XI and now reads, ``a notch or indentation in the 
base of the flipper that is at least as deep as 1/8 inch (0.32 cm), 
with or without setal hairs.'' This change in wording is considered 
minor, is within the scope of this rulemaking, and reflects the true 
intent of this action to support the Commission's plan and effectuate 
interjurisdictional management of the lobster resource through 
compatible broodstock regulations.

Edit 2

    The final rule defers the effective implementation of the revised 
v-notch measure in the Outer Cape Area until July 1, 2010, whereas in 
the proposed rule, the Outer Cape Area would have been subject to this 
measure thirty days after the publication of the final rule. Until July 
1, 2010, the Outer Cape Area remains held to the 1/4-inch (0.64-cm) v-
notch definition which served as the definition for a standard v-shaped 
notch prior to this rulemaking. Since the definition of a standard v-
shaped notch now relates to a 1/8-inch (0.32-cm) notch effective with 
this final rule, a new definition for the 1/4-inch (0.64 cm) notch has 
been established in the regulations to cover the Outer Cape Area 
through June 30, 2010. This measure is now referred to as a ``One-
quarter-inch (1/4-inch) v-shaped notch,'' and defined as ``... a 
straight-sided triangular cut, without setal hairs, at least 1/4 inch 
(0.64 cm) in depth and tapering to a point.''

Edit 3

    Revisions were made to Sec.  697.7 Prohibitions to reflect the 
changes to the maximum size and v-notching requirements to indicate 
that those requirements would be effective in the Outer Cape Area 
beginning July 1, 2010, and effective in Areas 2, 3, 4, 5, and 6 thirty 
days after the publication of the final rule.

Edit 4

    The text, ``Effective January 1, 2010,'' was added to Sec.  
697.6(n)(1) to indicate that the reporting requirements for affected 
lobster dealers would not begin until that date. In the proposed rule, 
the preferred alternative would have implemented those requirements 30 
days after the publication of this rule.

Changes to Existing Regulations

    NMFS herein amends 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

    The Commission's Expanded Coastwide Data Collection Program set 
forth in Addendum X is intended to increase the quality and quantity of 
fishery-dependent and fishery-independent data collected at the state 
and Federal level and sets guidelines for data collection associated 
with dealer and harvester reporting, sea sampling, port sampling and 
fishery-independent data collection programs. Consistent with the 
Commission's recommendations in Addendum X, NMFS, by way of this final 
rule, extends weekly, trip-level electronic reporting coverage to all 
Federal lobster dealers. Formerly, if a seafood dealer held a Federal 
lobster dealer permit and no other Federal seafood dealer permits, that 
dealer was 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) fell in this category and, therefore, were not previously 
subjected to Federal reporting requirements. The other 71 percent of 
Federal lobster dealers have another Federal seafood dealer permit that 
requires routine reporting. Such dealers have been and will continue to 
be mandated to report all species purchased, including lobster. The 
reporting requirements for these dealers who were required to report 
prior to this rulemaking will not change as a result of this action. 
Accordingly, this action affects only those Federal lobster dealers not 
previously required to report lobster sales based on reporting 
requirements mandated by other federally-managed fisheries.
    Under this final rule, all Federal lobster dealers must complete 
trip-level reports and submit them electronically each week, consistent 
with current Federal dealer reporting requirements. This measure 
differs from the Commission's recommendations because it requires the 
electronic submission of the reports and would collect the data in a 
timelier manner (weekly vs. monthly). To address concerns from some 
dealers, the State of Maine, and industry groups which wrote in 
opposition to this requirement, NMFS has deferred the effective date of 
this action to January 1, 2010, to allow those affected by this rule 
some additional time to adjust their business practices to comply with 
the new requirements.
    This action does not alter harvester reporting, sea sampling, port 
sampling or fishery-independent data collection

[[Page 37545]]

programs. Federal fishery-dependent data collection programs, such as 
sea sampling and port sampling activities, are longstanding and 
underway, 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 fishery-dependent and fishery-independent data collection 
activities exceed those identified in Addendum X and, therefore, do not 
warrant further action at this time. Further, with respect to harvester 
reporting, 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 VTR program, thus 
exceeding the reporting threshold under the ISFMP. Therefore, with 
respect to the reporting requirements in Addendum X of the Commission's 
ISFMP, this final rule changes only the dealer reporting requirements 
and no other data collection or reporting programs.
    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 new Federal dealer reporting requirements 
are consistent with the reporting requirements already in place for 
Federal seafood dealers who are already subject to electronic reporting 
requirements for fisheries managed under the authority of the Magnuson-
Stevens Act, including those of whom also hold Federal lobster permits. 
The electronic dealer 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.
    Federal lobster dealers affected by this action, similar to Federal 
dealers already required to report, may choose one of three methods for 
submitting their electronic reports: direct real-time, online data 
entry into SAFIS; off-line data entry using software provided by NMFS, 
followed by file upload to SAFIS; or proprietary record-keeping 
software followed by file upload 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 would be eligible to obtain the file upload software 
through a NMFS contractor, at no cost to the impacted dealer. The no-
cost option would mitigate some of the financial impact to Federal 
lobster dealers who would be subject to mandatory dealer reporting. All 
impacted lobster dealers would be required to maintain or have access 
to a personal computer and Internet connection.

Maximum Carapace Length Requirements

    In support of the Commission's measures in Addendum XI to address 
the recommendations provided in the stock assessment and peer review 
process, this final rule establishes a maximum size of 5 1/4 inches 
(13.34 cm) on all (male and female) lobsters in Area 2 wherein there 
was formerly no maximum size requirement in the Federal regulations. 
Formerly, in Area 4, the Federal maximum carapace length regulation 
restricted the harvest of female lobster in excess of 5 1/4 inches 
(13.34 cm). This final rule broadens the scope of the maximum size to 
include all lobsters (male and female) in Area 4. In Area 5, the former 
Federal maximum carapace regulation restricted harvest of female 
lobster in excess of 5 1/2 inches (13.97 cm). This action reduces the 
maximum size in Area 5 to 5 1/4 inches (13.34 cm) and applies to both 
male and female lobster. Prior to this rule, the Federal lobster 
regulations for Area 4 and Area 5 allowed recreational fishermen to 
retain one female lobster exceeding 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 is now 
eliminated. In Area 6, this action establishes a maximum size of 5 1/4 
inches (13.34 cm) for all lobster harvested by Federal vessels in this 
area. Consequently, with this final rule, the maximum size restrictions 
are identical for Areas 2, 4, 5 and 6 and consistent with the maximum 
size measures already enforced by the states adjacent to these 
management areas.
    In addition to the changes in the maximum sizes in the near shore 
lobster management areas, this regulatory action establishes a maximum 
carapace size requirement in offshore Area 3. The Commission's plan 
requires the states to implement a lobster maximum carapace length of 7 
inches (17.78 cm) by July 1, 2008, reduced by 1/8 inches (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. Therefore, to be 
consistent with the Commission and States' recommended time frame for 
implementation and fully complement state regulations, this action 
establishes the maximum size recommended by the Commission for the 
second year of the three-year implementation schedule, which equates to 
a 6 7/8-inch (17.46-cm) maximum size effective thirty days after the 
publication of the final rule. Consistent with the ISFMP, the terminal 
maximum size for Area 3 of 6 3/4 inches (17.15 cm) will take effect on 
July 1, 2010. The aforementioned measures are 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. As part of this 
final rule, NMFS establishes a maximum carapace length requirement for 
the Federal waters of the Outer Cape Area, consistent with the terminal 
maximum size for Area 3. The rationale for the expansion of this 
measure is that the Outer Cape lobster resource, like that of offshore 
Area 3, is largely composed of animals from the Georges Bank lobster 
stock. Given the propensity of lobster to move inshore and offshore and 
between Area 3, the Outer Cape Area and other areas, consistent 
broodstock protection measures are a reasonable and prudent means of 
assuring protection of broodstock throughout the stock area. The

[[Page 37546]]

expansion of these broodstock measures into the Outer Cape would 
support the efforts of lobstermen in Area 3 and Area 1 whom are 
releasing lobster broodstock which would otherwise be harvested as 
these lobsters move into the Outer Cape Area. The concerns of the Outer 
Cape industry in response to the proposed rule were seriously 
considered by NMFS. In consideration of comments in opposition by the 
Outer Cape lobster industry in response to the proposed broodstock 
measures and timeline for implementation which under the preferred 
alternative would have established a 6 7/8-inch (17.46-cm) maximum 
carapace limit effective thirty days after the publication of this 
final rule, NMFS has adjusted these requirements in this final rule to 
alleviate the economic burden on the industry while providing a plan 
for conserving lobster broodstock throughout the stock area. 
Accordingly, the maximum size requirement for the Outer Cape Area will 
be deferred until July 1, 2010. At that time, the maximum size will be 
6 3/4 inches (17.15 cm), consistent with the terminal maximum size for 
Area 3 at that time.

Modified Definition of V-Notch

    As approved by the Commission in Addendum XI, NMFS revises 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. The Commission's definition also pertains to any female which is 
mutilated in a manner which could hide, obscure, or obliterate such a 
mark; a clause which is previously existed and remains part of the 
definition of a v-notched American lobster in Sec.  697.2. As with the 
Commission's ISFMP, the zero tolerance v-notch definition for Area 1 
remains unchanged. The Commission's ISFMP allows the Outer Cape Area to 
maintain the former definition of a standard v-notch (at least 1/4 inch 
(0.64 cm) in depth, without setal hair). However, to provide a 
consistent set of regulations to protect broodstock across stock and 
management areas while balancing economic impacts to the Outer Cape 
lobster industry, this final rule extends the modified definition of a 
standard v-notch (at least as deep as 1/8 inches (0.32 cm), with or 
without setal hairs) to include the Outer Cape Area.
    The concerns of the Outer Cape industry were not overlooked in 
selecting the manner in which the v-notch regulation is implemented. 
Specifically, NMFS has deferred the effective date of the 1/8-inch 
(0.32-cm) v-notch in the Outer Cape until July 1, 2010, consistent with 
the effective date for the maximum size regulations in this area. In 
the meantime, and consistent with the Commission's ISFMP, the Outer 
Cape v-notch restriction will prohibit possession of any lobster 
bearing a notch at least 1/4 inch (0.64 cm) in depth, without setal 
hair, now defined in the Federal lobster regulations as a ``1/4-inch 
(0.64-cm) v-notch lobster.'' Effective July 1, 2010, all lobster 
management areas, with the exception of Area 1- essentially all of the 
SNE and GBK stock areas - will be bound by a consistent v-notch size 
which will be the standard v-shaped notch (at least as deep as 1/8 
inches (0.32 cm), with or without setal hairs).

Classification

    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    This final rule does not contain policies with Federalism 
implications as defined in E.O. 13132. The measures set forth in this 
final rule are based upon the lobster ISFMP that was created and is 
overseen by the states. The 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 regulations do not pre-empt state law and 
do nothing to directly regulate the states.
    This final rule contains a collection of information requirement 
subject to the Paperwork Reduction Act (PRA) which has been approved by 
the Office of Management and Budget (OMB) under control number 0648-
0229. 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 was sought during the proposed rule stage 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. Some 
comments were received in response to the proposed rule regarding the 
collection of information requirements. Those comments disagreed with 
the estimates for operating and start-up costs associated with the 
electronic dealer reporting requirements and asked why the proposed 
rule did not estimate the costs associated with the compilation and 
submission of the electronic reports. NMFS used existing data based on 
Federal dealers who already report as the basis for the burden 
estimates. Further, NMFS did provide information in the proposed rule 
concerning the estimates of compiling and submitting the data. Since 
the proposed rule, NMFS reassessed the costs associated with complying 
with the reporting requirements and found that the initial estimates 
likely overstated the potential costs of these requirements to affected 
dealers. This additional information was assessed in the EA for this 
action. More detailed responses to these and other comments are 
provided in the Comments and Responses section under SUPPLEMENTARY 
INFORMATION.
    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 a Final Regulatory Flexibility Analysis (FRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact this rule, if adopted, will have on 
small entities. A description of the action, the reason for 
consideration, and the legal basis are contained in the SUPPLEMENTARY 
INFORMATION section of this final rule.
    The FRFA incorporates the initial regulatory flexibility analysis 
(IRFA), a summary of the significant issues raised by the public 
comments in response to the IRFA, the NMFS responses to those comments, 
and a summary of the analyses completed to support the action. The IRFA 
was summarized in the proposed rule (73 FR 58099, October 6, 2008) and 
is thus not repeated here. Copies of the FRFA, RIR, and the EA prepared 
for this action are available from the Northeast Regional Office (see 
ADDRESSES). A description of the action, its reasons for consideration, 
and the legal basis for this action are contained in the SUMMARY and 
SUPPLEMENTARY INFORMATION sections of this final rule.

[[Page 37547]]

Summary of the Significant Issues Raised by the Public Comments

    A total of 49 comments were received. Four comments were received 
in opposition to the Federal lobster dealer electronic reporting 
requirements, while five wrote in favor of the dealer electronic 
reporting requirements. Similar to those received in response to the 
ANPR for this action as addressed in the proposed rule, the comments in 
opposition to the electronic dealer reporting requirements were 
received from two lobster dealers, the State of Maine Department of 
Marine Resources (ME DMR), and a lobster fishermen's organization. The 
general theme of these comments was that mandatory weekly electronic 
reporting would add more administrative burden to affected lobster 
dealers and would be redundant since many dealers are already providing 
the data to their respective state fisheries agency.
    Thirty-two comments were received in opposition to the inclusion of 
the Outer Cape Area under the expanded broodstock protection measures. 
Of those comments, 14 stated that the expansion of the broodstock 
requirements into the Outer Cape Area would cause some level of 
financial hardship for Outer Cape lobster trap fishermen. Seven of the 
32 individuals disagreed with the NMFS estimates of catch reductions in 
the Outer Cape lobster trap sector associated with the new 
requirements, stating that the losses in catch would be higher than the 
NMFS estimates.
    Seven comments were received in general support of the broodstock 
protection measures, and four individuals wrote expressly to support 
the expansion of the broodstock measures into the Outer Cape Area. 
Three commenters opposed the broodstock protection measures in 
management areas other than the Outer Cape Area.
    Two comments opposing the maximum size requirements were received, 
one by a mid-Atlantic pot gear fisherman and one by a recreational 
diving group. Representatives of the offshore lobster fishing sector 
wrote in favor of the dealer reporting, maximum size and v-notching 
requirements. Two fishermen recommended consistent measures throughout 
all lobster management areas and one fisherman commented that more 
restrictive broodstock measures are needed coastwide.
    Detailed responses to all the comments are provided in the Comments 
and Responses section of SUPPLEMENTARY INFORMATION.

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

    The final rule will impact approximately 148 Federal lobster 
dealers who were not formerly required to report lobster purchases to 
NMFS. With this action, these Federal lobster dealers will be required 
to submit weekly electronic reports of trip-level lobster purchases 
from lobster vessels. These requirements are consistent with the 
reporting requirements in place for all other Federal seafood dealers 
who are subject to reporting requirements.
    Promulgation of Federal regulations to implement the broodstock 
management measures in Areas 2, 3, 4, 5 and 6 are not expected to 
impact any vessels as these measures are part of the Commission's plan. 
Consequently, the measures are currently enforced by the states and 
Federal vessels are subject to these more restrictive requirements in 
the absence of complementary Federal regulations. In the Outer Cape 
Area, the broodstock measures are not part of the Commission's plan and 
Federal implementation of the broodstock measures in the Outer Cape 
Area are expected to impact a maximum of 184 to 203 trap and non-trap 
vessels. However, the actual number of impacted vessels is expected to 
be much less. The broadness of this estimate is evident because Federal 
lobster vessels fishing with non-trap gear are not required to indicate 
a lobster trap fishing area on their permit. If such vessels provide 
VTRs then a statistical area is provided to reflect fishing areas but 
the statistical areas do not always fall exclusively within a single 
management area, complicating the ability to narrow down the specific 
areas fished. Further, trap vessels may select the Outer Cape Area on 
their permit but may not fish in that area. For these reasons, the 
exact number of vessels is unknown but is likely less than the upper 
end estimates determined from the EA.

Economic Impacts of the Selected Action

Mandatory Federal Lobster Dealer Electronic Reporting

    Federal lobster dealers are the entity most affected by this 
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).
    This action requires all federally-permitted lobster dealers to 
report all seafood purchases, including lobster, through an electronic 
reporting system. This action affects regulated lobster dealers who are 
not already required to report by virtue of holding at least one other 
Federal dealer permit requiring 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 to 
NMFS leaving 148 regulated small entities required to comply with this 
action.
    To comply with the electronic reporting requirements, dealers 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 who 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 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. Since the 
publication of

[[Page 37548]]

the proposed rule and in response to comments regarding the accuracy of 
the economic impact estimates, NMFS reassessed the costs associated 
with acquiring the necessary computer and Internet requirements. 
Although NMFS stands by its initial estimates, the reassessment 
suggests that the costs for a computer and Internet service as 
presented in the initial NMFS analysis are probably overestimated and, 
more than likely, represent a high-end, worst-case scenario of 
potential cost to affected Federal lobster dealers. Based on the 
information obtained through the new cost investigation, a new desk-top 
personal computer system can be purchased for as little as $272 and 
Internet service can be acquired in most areas for about $20 per month. 
In consideration of the more recent cost query, if one considers the 
cost of a computer to be about $400 and the annual cost of Internet 
service to be $240 (assuming the $20 per month charge and not the 
lowest possible charge) then the annual cost could be about 50 percent 
less than NMFS has estimated in the initial analysis. More 
specifically, the cost to pay in full for a brand new computer and the 
annual Internet service charge would be approximately $640 or about $53 
per month, compared to the initial estimate of $1,232 or about $103 per 
month.

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 reflected 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 this 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 as 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 this 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 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. This Federal action would directly affect only 
those Federal lobster vessels that selected the Outer Cape Area. For 
the 2007 fishing

[[Page 37549]]

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 3/4 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 3/
4-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 3/4-inch (17.15-cm) 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.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which and agency is required to prepare a FRFA, the agency shall 
publish one or more guides to assist small entities in complying with 
the rule, and shall designate such publications as ``small entity 
compliance guides.'' The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules.
    As part of this rulemaking process, a letter to permit holders that 
also serves as a small entity compliance guide (the guide) was 
prepared. The small entity compliance guide will be sent to all holders 
of Federal American lobster vessel and dealer permits as part of the 
permit holder letter. Copies of this final rule and the small entity 
compliance guide are available upon request from the Northeast Regional 
Office (see ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 697

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 22, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR 
part 697 are amended as follows:

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.

0
2. In Sec.  902.1, the table in paragraph (b) under ``50 CFR'' is 
amended by adding a new entry for 697.7 to read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *

 
    CFR part or section where the       Current OMB control number the
 information collection requirement     information (All numbers begin
             is located                           with 0648-)
 
                                * * * * *
 
50 CFR                                ..................................
                                * * * * *
697.7                                 -0202
                                * * * * *
 
 

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

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

0
4. In Sec.  697.2(a), the definition for ``One-quarter-inch (1/4-inch) 
v-shaped notch'' is added and the and the definition for ``Standard v-
shaped notch'' is revised to read as follows:


Sec.  697.2  Definitions.

    (a) * * *
    One-quarter-inch (1/4-inch) 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.
* * * * *
    Standard V-shaped notch means a notch or indentation in the base of 
the flipper that is at least as deep as 1/8 inch (0.32 cm), with or 
without setal hairs.
* * * * *

0
5. 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. Effective January 1, 2010, all Federally-permitted 
lobster dealers, and any person acting in the capacity of a dealer, 
must submit to the Regional Administrator or to the official designee a 
detailed report of all fish purchased or received for a commercial 
purpose, 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(a)(1)(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:

[[Page 37550]]

    (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 transferred, purchased or received for a commercial 
purpose; 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) or total value by species (by 
market category, if applicable); port landed; cage tag numbers for 
surfclams and ocean quahogs, if applicable; 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.
    (iii) Dealer reporting requirements for skates. In addition to the 
requirements under paragraph (n)(1)(i) of this section, dealers shall 
report the species of skates received. Species of skates shall be 
identified according to the following categories: winter skate, little 
skate, little/winter skate, barndoor skate, smooth skate, thorny skate, 
clearnose skate, rosette skate, and unclassified skate. NMFS will 
provide dealers with a skate species identification guide.
    (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. Failure to comply with the minimum 
specifications identified in the permit holder letter are prohibited.
    (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:
    (i) 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.
    (ii) Surfclam and ocean quahog processors and dealers whose plant 
processing capacities change more than 10 percent during any year shall 
notify the Regional Administrator in writing within 10 days after the 
change.
    (iii) Atlantic herring processors, including processing vessels, 
must complete and submit all sections of the Annual Processed Products 
Report.
    (iv) Atlantic hagfish processors must complete and submit all 
sections of the Annual Processed Products Report.
    (o) Inspection. Upon the request of an authorized officer or an 
employee of NMFS designated by the Regional Administrator to make such 
inspections, all persons required to submit reports under this part 
must make immediately available for inspection copies of reports, and 
all records upon which those reports are or will be based, that are 
required to be submitted or kept under this part.
    (p) Record retention. Any record as defined at Sec.  648.2, related 
to fish possessed, received, or purchased by a dealer that is required 
to be reported, must be retained and be available for immediate review 
for a total of 3 years after the date the fish were first possessed, 
received, or purchased. Dealers must retain the required records and 
reports 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) The trip identifier required under paragraph (n)(1) of this 
section 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 must be submitted with 
the detailed report, as required under paragraph (q)(1) of this 
section. 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.
    (5) At-sea purchasers and processors. With the exception of the 
owner or operator of an Atlantic herring carrier vessel, the owner or 
operator of an at-sea purchaser or processor that purchases or 
processes any Atlantic herring, Atlantic mackerel, squid, butterfish, 
scup, or black sea bass at sea must submit information identical to 
that required by paragraph (n)(1) of this section and provide those 
reports to the Regional Administrator or designee by the same mechanism 
and on the same frequency basis.
    (r) Additional data and sampling. Federally permitted dealers must 
allow access to their premises and make available to an official 
designee of 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

[[Page 37551]]

of age structures such as otoliths or scales.
    (s) Additional dealer reporting requirements. 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.

0
6. In Sec.  697.7, paragraph (c)(1)(v) is revised, paragraph 
(c)(2)(xxi) is added, and paragraph (c)(3)(iii) is revised to read as 
follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (v) Retain on board, land, or possess any female lobster that do 
not meet the area-specific v-notch requirements set forth in Sec.  
697.20(g).
* * * * *
    (2) * * *
    (xxi) Fail to comply with dealer record keeping and reporting 
requirements as specified in Sec.  697.6.
* * * * *
    (3) * * *
    (iii) The possession of egg-bearing female American lobsters, v-
notched female American lobsters in violation of the v-notch 
requirements set forth in Sec.  697.20(g), American lobsters that are 
smaller than the minimum size set forth in Sec.  697.20(a), American 
lobsters that are larger than the maximum carapace sizes set forth in 
Sec.  697.20(b), or lobster parts, possessed at or prior to the time 
when the aforementioned lobsters or parts are received by a dealer, 
will be prima facie evidence that such American lobsters or parts were 
taken or imported in violation of these regulations. A preponderance of 
all submitted evidence that such American lobsters were harvested by a 
vessel not holding a permit under this part and fishing exclusively 
within state or foreign waters will be sufficient to rebut the 
presumption.
* * * * *

0
7. In Sec.  697.20, paragraphs (b)(3) through (b)(7) are revised and 
paragraph (b)(8) is added; paragraphs (g)(3) and (g)(4) are revised, 
and paragraphs (g)(5) through (g)(8) are added as follows:


Sec.  697.20  Size, harvesting and landing requirements.

* * * * *
    (b) * * *
    (3) The maximum carapace length for all American lobster harvested 
in or from the EEZ Nearshore Management Areas 2, 4, 5, and 6 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 one or more 
of EEZ Nearshore Management Areas 2, 4, 5, and 6 is 5 1/4 inches (13.34 
cm).
    (5) The maximum carapace length for all American lobster harvested 
in or from EEZ Offshore Management Area 3 is 6 7/8 inches (17.46 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 EEZ Offshore 
Management Area 3 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, or the EEZ Offshore Management Area 3.
    (4) No vessel, owner or operator issued a Federal limited access 
American lobster permit fishing in or electing to fish in the EEZ 
Nearshore Management Area 2, 4, 5, 6 or the EEZ Offshore Management 
Area 3 may land, harvest or possess any female lobster possessing a 
standard v-shaped notch.
    (5) Through June 30, 2010, no person may possess any female lobster 
possessing a 1/4-inch (0.64-cm) v-shaped notch harvested in or from the 
EEZ Outer Cape Lobster Management Area.
    (6) Through June 30, 2010, no vessel, owner or operator issued a 
Federal limited access American lobster permit fishing in or electing 
to fish in the EEZ Outer Cape Lobster Management Area may land, harvest 
or possess any female lobster possessing a 1/4-inch (0.64-cm) v-shaped 
notch.
    (7) Effective July 1, 2010, no person may possess any female 
lobster possessing a standard v-shaped notch harvested in or from the 
EEZ Outer Cape Lobster Management Area.
    (8) Effective July 1, 2010, no vessel, owner or operator issued a 
Federal limited access American lobster permit fishing in or electing 
to fish in the EEZ Outer Cape Lobster Management Area may land, harvest 
or possess any female lobster possessing a standard v-shaped notch.
* * * * *
[FR Doc. E9-17941 Filed 7-28-09; 8:45 am]
BILLING CODE 3510-22-S


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