37530 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

Related Information 

(h) Refer to MCAI European Aviation 

Safety Agency (EASA) Airworthiness 

Directive 2008–0167, dated September 2, 

2008; BAE Systems (Operations) Limited 

Inspection Service Bulletin ISB.55–020, 

dated December 11, 2007; and BAE Systems 

(Operations) Limited Repair Instruction 

Leaflet HC551H9061, Issue 3, dated January 

31, 2008; for related information. 

Material Incorporated by Reference 

(i) You must use BAE Systems (Operations) 

Limited Inspection Service Bulletin ISB.55– 

020, dated December 11, 2007, to do the 

actions required by this AD, unless the AD 

specifies otherwise. If you do the repair 

option provided in paragraph (f)(4) of this 

AD, you must use BAE Systems (Operations) 

Limited Repair Instruction Leaflet 

HC551H9061, Issue 3, dated January 31, 

2008, unless the AD specifies otherwise. (The 

issue date, January 31, 2008, of BAE Systems 

(Operations) Limited Repair Instruction 

Leaflet HC551H9061, Issue 3, is specified 

only on the first page of the document.) 

(1) The Director of the Federal Register 

approved the incorporation by reference of 

this service information under 5 U.S.C. 

552(a) and 1 CFR part 51. 

(2) For service information identified in 

this AD, contact BAE Systems Regional 

Aircraft, 13850 McLearen Road, Herndon, 

Virginia 20171; telephone 703–736–1080; email raebusiness@baesystems.com; Internet 

http://www.baesystems.com/Businesses/

RegionalAircraft/index.htm. 

(3) You may review copies of the service 

information at the FAA, Transport Airplane 

Directorate, 1601 Lind Avenue, SW., Renton, 

Washington. For information on the 

availability of this material at the FAA, call 

425–227–1221 or 425–227–1152. 

(4) You may also review copies of the 

service information that is incorporated by 

reference at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, or go 

to: http://www.archives.gov/federal_register/

code_of_federal_regulations/ibr_

locations.html. 

Issued in Renton, Washington, on July 13, 

2009. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. E9–17542 Filed 7–28–09; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 

§ 697.20(b)(3) through § 697.20(b)(6) and 

§ 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 

§ 697.20(b)(7) and (8) and § 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 § 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 

DavidlRostker@omb.eop.gov 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 vnotching and maximum carapace length 

measures (together referred to as 

broodstock protection measures) in 

Areas 2, 3, 4, 5 and 6 (see 50 CFR 

§ 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 


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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 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 § 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 vnotch 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) vnotch 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 vnotch 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 longterm 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 


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37532 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

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 fullrecruit 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 nocost 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 


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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 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 longterm 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 vnotched 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’’ vnotch definition. According to the MA 

DMF report, 87 percent of the sampling 


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trips out of Provincetown occurred west 

of 70 ° 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-byside....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 vnotched 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 vnotch 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 zerotolerance 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) vnotch 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 


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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 subcategory 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 subcategory 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 


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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 fisherydependent 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 


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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 easilyaccessible 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 reassessed 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 


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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 


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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 realtime 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 vnotch requirement coast-wide. A midAtlantic 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 multifaceted 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. 


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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 vnotching 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 vnotch measures commensurate with 

those in the GOM stock area. Nor is it 

sufficient to justify less restrictive vnotch 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 


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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 vnotched 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 zerotolerance 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 


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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 ‘‘largersized’’ 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 vnotching 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. 


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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 midAtlantic 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 newlyrecruited 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 


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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-inhand 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 § 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 § 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 fisheryindependent 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 


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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 statepermitted 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 MagnusonStevens 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 


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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 vnotch 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 vnotched American lobster in § 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 vnotch 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) vnotch 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. 


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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 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 federallypermitted 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 


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37548 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

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, worstcase 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 vnotch 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 vnotch 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 


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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 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 nontrap 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. 

■ 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 

■ 1. The authority citation for part 902 

continues to read as follows: 

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

■ 2. In § 902.1, the table in paragraph (b) 

under ‘‘50 CFR’’ is amended by adding 

a new entry for 697.7 to read as follows: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

* * * * * 

CFR part or section 

where the information 

collection requirement 

is located 

Current OMB control 

number the information (All numbers 

begin with 0648–) 

*****

50 CFR 

*****

697.7 –0202 

*****

PART 697—ATLANTIC COASTAL 

FISHERIES COOPERATIVE 

MANAGEMENT 

■ 3. The authority citation for part 697 

continues to read as follows: 

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

■ 4. In § 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: 

§ 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. 

* * * * * 

■ 5. In § 697.6, paragraphs (n) through 

(s) are added to read as follows: 

§ 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 § 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: 


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37550 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

(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 § 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 § 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 

§ 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 § 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 § 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 atsea 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 


sroberts on DSKD5P82C1PROD with RULES
Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 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 §§ 648.6 and 648.7 of this 

chapter, whichever is most restrictive. 

■ 6. In § 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: 

§ 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 § 697.20(g). 

* * * * * 

(2) * * * 

(xxi) Fail to comply with dealer 

record keeping and reporting 

requirements as specified in § 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 

§ 697.20(g), American lobsters that are 

smaller than the minimum size set forth 

in § 697.20(a), American lobsters that 

are larger than the maximum carapace 

sizes set forth in § 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. 

* * * * * 

■ 7. In § 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: 

§ 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) vshaped 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 

DEPARTMENT OF THE TREASURY 

Alcohol and Tobacco Tax and Trade 

Bureau 

27 CFR Parts 40, 41, and 45 

[Docket No. TTB–2009–0002; T.D. TTB–80; 

Re: T.D. TTB–78 and Notice No. 95] 

RIN 1513–AB72 

Implementation of Statutory 

Amendments Requiring the 

Qualification of Manufacturers and 

Importers of Processed Tobacco and 

Other Amendments Related to Permit 

Requirements, and the Expanded 

Definition of Roll-Your-Own Tobacco; 

Correction 

AGENCY: Alcohol and Tobacco Tax and 

Trade Bureau, Treasury. 

ACTION: Temporary rule; Treasury 

decision; correction. 

SUMMARY: On June 22, 2009, the Alcohol 

and Tobacco Tax and Trade Bureau 

published a temporary rule in the 

Federal Register to implement certain 

changes made to the Internal Revenue 

Code of 1986 by the Children’s Health 

Insurance Program Reauthorization Act 

of 2009. The principal changes involve 

permit and related requirements for 

manufacturers and importers of 

processed tobacco and an expansion of 

the definition of roll-your-own tobacco. 

That temporary rule contained several 

minor inadvertent errors; this document 

corrects those errors. 

DATES: Effective Date: These 

amendments are effective July 29, 2009 

through June 22, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Amy R. Greenberg, Regulations and 

Rulings Division, Alcohol and Tobacco 

Tax and Trade Bureau (202–453–2099). 

SUPPLEMENTARY INFORMATION: On June 

22, 2009, the Alcohol and Tobacco Tax 

and Trade Bureau (TTB) published a 

temporary rule in the Federal Register 

to implement certain changes made to 

the Internal Revenue Code of 1986 by 

the Children’s Health Insurance 

Program Reauthorization Act of 2009 

(see T.D. TTB–78, 74 FR 29401). The 

temporary rule was effective on the date 


sroberts on DSKD5P82C1PROD with RULES