Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, 52346-52360 [05-17557]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

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


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: Written comments should be sent to Harold C. Mears, 
Director, State, Federal, and Constituent Programs Office, Northeast 
Region, NMFS, One Blackburn Drive, Gloucester, MA 01930. Mark the 
outside of the envelope ``American Lobster Proposed Rule Comments.'' 
Comments may be sent via email at Lob0305@noaa.gov. Include in the 
subject line ``American Lobster Proposed Rule Comments.'' Comments may 
also be sent via fax (978) 281-9117, or via the Federal e-Rulemaking 
Portal at www.regulations.gov.
    Copies of the American lobster proposed rule, its Draft 
Environmental Assessment/Initial Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (DEA/IRIR/IRFA) are available from 
Harold Mears, Director, State, Federal and Constituent Programs Office, 
NMFS, One Blackburn Drive, Gloucester, MA 01930.

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

SUPPLEMENTARY INFORMATION:

Statutory Authority

    These proposed regulations would modify Federal lobster 
conservation management measures in the Exclusive Economic Zone (EEZ) 
under the authority of section 803(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 5101 et 
seq., which states that, in the absence of an approved and implemented 
Fishery Management Plan under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, 
after consultation with the appropriate Fishery Management Council(s), 
the Secretary of Commerce may implement regulations to govern

[[Page 52347]]

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

Purpose and Need for Management

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

Background

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

[[Page 52348]]

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

Comments and Responses

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

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

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

Breakdown of Comments Received for Each Request for Comments

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

[[Page 52349]]

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

Responses to Comments

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

[[Page 52350]]

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

Proposed Changes from the Current Regulations

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

Modify Egg Production Schedule

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

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

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

[[Page 52351]]

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

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

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

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

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

Implement Zero Tolerance V-Notching in LCMA 1

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

[[Page 52352]]

Implement a Maximum Harvest Size in LCMA 4 and LCMA 5

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

Establish a Overlap Zone Between LCMA 3 and LCMA 5

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

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

Clarify Existing Regulations

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

Allow a Change in the LCMA Designations

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

[[Page 52353]]

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

Clearly Reference Other Pertinent Federal Laws

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

Prohibit the Hauling or Possession of Another's Gear

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

Exempt Gear Retrieval from Exempted Fishing Regulations

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

Corrections

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

[[Page 52354]]

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

Management Actions Considered but Rejected At this Time

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

Outer Cape Limited Entry / Trap Transferability

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

LCMA 3 ``Choose and Use''

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

[[Page 52355]]

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

Mandatory Reporting

    Mandatory reporting relates to the requirement of fishers to report 
catch data to the government. Presently, all Federal Northeast 
Multispecies permit holders must report their entire catch to the 
Federal Government, including species covered under other permits, such 
as a Federal lobster permit. In Addendum II, the Commission called for 
all Federal LCMA 3 permit holders to report their catch to the Federal 
Government in a manner similar to that required of Northeast 
Multispecies permit holders (and several other Federal limited access 
permits). The Commission recommended that the Federal Government 
implement regulations consistent therewith. The current mandatory 
reporting requirements for Federal limited access permit holders were 
developed to accommodate traditional finfish harvest from mobile gear 
vessels and is burdensome for traditional trap gear fishermen. At this 
time, several state and Federal pilot programs are underway, or have 
been completed with the intent