Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, 56935-56944 [E7-19713]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 193 (Friday, October 5, 2007)]
[Rules and Regulations]
[Pages 56935-56944]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19713]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 0612243160-7448-02; I.D. 112505A]
RIN 0648-AU07


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Final rule.

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SUMMARY: NMFS amends the Federal American lobster (Homarus americanus) 
regulations to implement further minimum carapace length (gauge) 
increases, an escape vent size increase, and trap reductions in the 
offshore American lobster fishery, consistent with recommendations for 
Federal action made by the Atlantic States Marine Fisheries Commission 
(Commission) and in support of the Commission's Interstate Fishery 
Management Plan for American Lobster (ISFMP).

DATES: Effective November 4, 2007.

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 request 
from Harold Mears, Director, State, Federal and Constituent Programs 
Office, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 
01930.

FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Management 
Specialist, (978) 281-9144, fax (978) 281-9117, e-mail 
peter.burns@noaa.gov.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    These new regulations would modify Federal lobster conservation 
management measures in the Exclusive Economic Zone (EEZ) under the 
authority of section 804 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

    American lobsters are managed within the framework of the 
Commission. The Commission serves to develop fishery conservation and 
management strategies for certain coastal species and coordinates the 
efforts of the states and Federal Government toward concerted 
sustainable ends. The Commission, under the provisions of the Atlantic 
Coastal Act, decides upon a management strategy as a collective and 
then forwards that strategy to the states and Federal Government, along 
with a recommendation that the states and Federal Government take 
action (e.g., enact regulations) in furtherance of this strategy. The 
Federal Government is obligated by statute to support the Commission's 
overall efforts. Relevant to this action, the Commission's Lobster 
Board recommended that the Federal Government create regulations 
consistent with the measures set forth in the Commission's Lobster 
ISFMP as identified in Addenda II, III, and IV and XI to Amendment 3 of 
the ISFMP. As initially adopted, these addenda included management 
measures for several lobster conservation management areas (LCMAs/
Areas) including Area 3, the Outer Cape Cod (Outer Cape) Area and Area 
1. Specifically, these measures included an escape vent size increase 
for both Area 1 and the Outer Cape Area and a series of gauge increases 
for the Outer Cape Area in addition to the measures considered for Area 
3. However, the Commission's American Lobster Management Board (Board), 
in May 2006, determined that only the Area 3 measures were required and 
repealed those specific to the Outer Cape Area and Area 1. 
Consequently, NMFS will implement regulatory measures in three general 
categories for LCMA 3: (1) Gauge size increases (recommended in Addenda 
II); (2) an escape vent size increase (recommended in Addendum IV) and 
a delay in the implementation of the escape vent size increase until 
2010 (Addendum XI); and (3) trap reductions (recommended in Addendum IV 
and Addendum XI). These regulatory changes serve as the Federal 
Government's response to the Commission's requested action and are 
consistent with NMFS' resource objectives, legal mandates, and overall 
practical/managerial requirements. The management measures for the 
areas other than Area 3 associated with these addenda and recommended 
for Federal implementation by the Commission will be addressed in 
future and ongoing rulemakings.
    The Area 3 broodstock and effort control measures relevant to this 
action directly address the concerns of the most recent stock 
assessment. The peer-reviewed lobster stock assessment in 2005 showed 
that the American lobster resource presents a mixed picture (see the 
Commission Stock Assessment Report No. 06-03, published January 2006 at 
www.asmfc.org.). One theme throughout the assessment was the high 
fishing effort and high mortality rates in all three stock areas. The 
assessment indicated that there is stable abundance for the Georges 
Bank (GBK) stock and much of the Gulf of Maine (GOM) stock and 
decreased abundance and recruitment, yet continued high fishing 
mortality rates, for the Southern New England (SNE) stock and in 
Statistical Area 514 (Massachusetts Bay and Stellwagen Bank) in the GOM 
stock. Of particular concern in the 2005 peer-reviewed stock assessment 
report is the SNE stock, where depleted stock abundance and recruitment 
coupled with high fishing mortality rates over the past few years led 
the stock assessment and peer review panel to recommend additional 
harvest restrictions. The SNE stock encompasses all of Areas 4, 5, and 
6, and part of Areas 2 and 3. Overall, stock abundance in the GOM is 
relatively high with recent fishing mortality comparable to the past. 
The GOM stock encompasses all of Area 1, and part of both Area 3 and 
the Outer Cape Management Area. Currently, high lobster fishing effort 
levels in GOM continue in concert with high stock abundance, although 
high effort levels are not likely to be supportable if abundance 
returns to long-term median levels. The GBK stock seems stable, with 
current abundance and fishing mortality similar to the 20-year average. 
The GBK stock encompasses part of Areas 2, 3, and the Outer Cape 
Management Area. While the report

[[Page 56936]]

noted the female proportion of the stock is increasing slightly, it 
also cautioned that further increases in effort are not advisable, 
hence, the need for additional effort reduction and broodstock 
protection.

Background

    The Commission's American lobster management strategy is neither 
predicated upon a single measure nor is it contained within a single 
document. Rather, the structure is based on facilitating ongoing 
adaptive management with necessary elements implemented over time. The 
Commission set forth the foundation of its American Lobster ISFMP in 
Amendment 3 in December 1997. The Federal Government issued compatible 
regulations that complemented Amendment 3 in December 1999. Amendment 3 
regulations established assorted measures that directly, even if 
preliminarily, address overfishing (e.g., trap caps and minimum gauge 
sizes). Amendment 3 created seven lobster management areas and 
established industry-led lobster management teams that make 
recommendations for future measures to end overfishing, based on the 
current status of the stocks. Additional management measures were set 
forth in subsequent Amendment 3 addenda including measures to limit 
future access to LCMAs 3, 4, and 5 in Addendum I (approved by the 
Commission in August 1999 and compatible Federal regulations enacted 
March 2003); and measures to increase protection of American lobster 
broodstock in Addenda II and III (approved by the Commission in 
February 2001 and February 2002, respectively, and compatible Federal 
regulations enacted March 2005). Addenda II and III measures included 
gauge increases and mandatory v-notch requirements for Area 3. 
Additional lobster management measures, notably measures that would 
control effort, were set forth in later addenda, including Addendum 
III, and relative to this action, Addendum IV (approved by the 
Commission in December 2003) that included additional trap reductions 
in Area 3; Addendum V (approved by the Commission in March 2004) that 
included a reduced trap cap in Area 3; Addendum VI (approved by the 
Commission in February 2005); Addendum VII (approved by the Commission 
in November 2005); Addendum VIII (approved by the Commission in May 
2006); Addendum IX (approved by the Commission in October 2006), 
Addendum X (approved by the Commission in October 2006), and Addendum 
XI that included recommendations for additional trap reductions and a 
delay in the escape vent size increase in Area 3 (approved by the 
Commission in May 2007).
    This current Federal rulemaking is one of three (3) Federal 
rulemakings that have their genesis, at least in part, in Commission 
Addenda II and III.
    The first Addenda II - III rulemaking began with the publishing, in 
the Federal Register, of an advance notice of proposed rulemaking 
(``ANPR'') on May 24, 2001 (66 FR 28726), and ended with the publishing 
of a final rule on March 14, 2006 (71 FR 13027). This first rulemaking 
focused primarily on the broodstock protection measures set forth in 
the two addenda, and it was this similarity in purpose that resulted in 
NMFS combining the addenda recommendations into a single rulemaking. 
Addenda II and III, however, also contained additional management 
recommendations; most notably effort control measures and ``if 
necessary'' measures, so called because they would be considered only 
if determined necessary in later years. These separate measures became 
more prominent as the Commission issued later addenda, causing NMFS to 
start a second rulemaking involving Addenda II III in 2005.
    The second Addenda II - III rulemaking actually focuses more on 
Commission Addenda IV - VII. This second rulemaking formally began with 
NMFS' publication of an ANPR in a Federal Register notice dated May 10, 
2005 (70 FR 24495), and remains ongoing. Specifically, NMFS determined 
that the Addenda II - III effort control measures were modified 
substantively and revised by the Commission's Addenda IV, V, VI, and 
VII. Overall, measures proposed in those Addenda involve additional 
limited access programs for Area 2 and the Outer Cape LCMAs and 
proposals to transfer traps in LCMAs 2, 3 and the Outer Cape. As a 
result, NMFS will analyze the Addenda II - III effort control programs 
as a component of the larger more detailed second rulemaking associated 
with the effort control recommendations in Addenda IV VII. NMFS is 
still engaged in this second proposed rulemaking, and the Commission's 
effort control measures are still under analysis.
    The third Addenda II - III rulemaking, which is represented in this 
final rule, also involves later Commission action, most notably 
Addendum XI. This third rulemaking formally began on December 13, 2005, 
with NMFS' publication of an ANPR in the Federal Register (70 FR 
73717). The rulemaking initially focused on Addenda II III's so called 
``if necessary'' measures because, although the measures were in 
Addenda II III at the time of the first Federal rulemaking, the 
Commission had not actually deemed them necessary until too late in the 
process for their inclusion in the March 26, 2006, final rule. 
Ultimately, the Commission modified the requirements of the ISFMP, 
voting on May 8, 2006 that the ``if necessary'' measures were, in fact, 
required only in LCMA 3, but not in the other LCMAs. The repealed 
measures include the additional escape vent size increase for LCMA 1 (2 
inches X 5 3/4 inches (5.08-cm X 14.61-cm) rectangular or 2 5/8 inches 
(6.67 cm) circular by 2008); in the Outer Cape Cod LCMA, four 
additional 1/32-inch (0.08-cm) gauge increases up to 3 1/2 inches (8.89 
cm) by July 2008 and an escape vent increase to 2 1/16 inches X 5 3/4 
inches (5.24 cm X 14.61 cm) rectangular or 2 11/16 inch (6.82 cm) 
circular by 2008.
    The Commission voted to approve draft Addendum XI for public 
comment on January 31, 2007, and the document was approved as part of 
the ISFMP in May 2007. The Addendum includes two additional 2.5-percent 
trap reductions for LCMA 3 and a delay in the implementation of the 
LCMA 3 escape vent size increase until 2010. NMFS incorporated the 
Addendum XI proposed measures in this third rulemaking in an ANPR filed 
in the Federal Register on December 18, 2006 (71 FR 75705), and in a 
subsequent proposed rule published in the Federal Register on June 20, 
2007 (72 FR 33955) with the expectation that the Board would ultimately 
adopt the measures as part of the lobster management framework.
    At present, most states have issued their complementary 
regulations; the Federal Government has not. 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. 
Generally, the exception to state coverage of all ISFMP measures, under 
the Commission's ISFMP, is for states that are classified as de minimis 
states. The focus of the analysis of measures in this action is for 
Federal lobster permit holders from states that have not implemented 
all measures in the Commission's ISFMP, and, in the case of this rule, 
exceptions to coverage exist for Federal permit holders from 
Connecticut, New Jersey, and the de minimis states. Both the states of 
New Jersey and Connecticut voted to approve Addenda II and III and it 
is expected that those states will issue compatible regulations in the 
immediate

[[Page 56937]]

future. Certain states at the southern end of the range qualify for de 
minimis status because a given state's declared annual landings, 
averaged over a two-year period, amount to less than 40,000 lb (18,144 
kg) of American lobster. While de minimis states are required to 
promulgate all coastwide measures contained in Section 3.1 of Amendment 
3, many of the area-specific measures for Area 3 identified in this 
action are not required to be implemented by the de minimis states. 
However, Federal lobster regulations apply to all entities fishing for 
lobster in Federal waters, including Federal permit holders in de 
minimis states.
    Based on the impact analysis relative to this final rule, a 
negligible number of Federal trap and non-trap vessels would be 
impacted by adoption of these new measures. The impacts are 
concentrated on those few vessels hailing from Connecticut, New Jersey 
and the de minimis states. However, should Connecticut and New Jersey 
ultimately implement these measures as mandated by the Commission's 
ISFMP, as expected, the impacts will be reduced even further. Impacts 
in the de minimis states are also expected to be minimal; by 
definition, the lobster catch has to be small to even qualify for de 
minimis status and lobster catch is not a principle component of the 
overall fishery in those states. In addition, a number of Federal 
lobster permit holders may be impacted by the trap reductions scheduled 
for Area 3. Some Area 3 permit holders electing to fish for lobster 
with traps in a nearshore management area in addition to Area 3, may 
endure trap reductions in the nearshore areas since the Federal lobster 
regulations require that Federal lobster vessels be subject to the 
lowest trap limit of all areas that are designated on the vessel's 
Federal lobster permit. In other words, if a vessel's Area 3 trap 
allocation is reduced to a number that is less than the vessel's 
nearshore allocation, that vessel's trap limit in the nearshore area 
will be similarly reduced. Overall, adoption of these new management 
measures into the Federal regulations will facilitate the cooperative 
state and Federal enforcement of lobster regulations by reducing the 
regulatory gap between the states and NMFS.

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 management action is warranted, it will so 
advise the Lobster Board, which would then likely charge the Lobster 
Conservation Management Teams (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 https://www.asmfc.org under the ``Minutes & Meetings 
Summary'' page in the American Lobster sub-category of the Interstate 
Fishery Management heading.
    After receiving an LCMT proposal, the Commission's Lobster Board 
will often attempt to seek specialized comment from both the Lobster 
Technical Committee and Lobster Advisory Panel before the proposal is 
formally brought before the Board. The Technical Committee is comprised 
of specialists, often scientists, whose role is to provide the Lobster 
Board with specific technical or scientific information. The Advisory 
Panel is a committee of individuals with particular knowledge and 
experience in the fishery, whose role is to provide the Lobster Board 
with comment and advice. Minutes of the Technical Committee and 
Advisory Panel can be found at the Commission's website at https://
www.asmfc.org under the ``Minutes & Meetings Summary'' page in the 
American Lobster sub-category of the Interstate Fishery Management 
heading.
    After receiving sub-committee advice, the Lobster Board will then 
debate 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 https://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 actions set forth in the final rule have their genesis in 
Addenda II, III and IV, and XI. Relative to Addendum II, the Lobster 
Board instructed the Plan Review Team to offer input on the new stock 
assessment, including a strategy for Addendum II, in a public meeting 
dated June 6, 2000. In a public meeting dated August 23, 2000, the 
Board directed the PRT to develop Addendum II, which was to include 
proposals made by many of the already involved LCMTs. In November 2000, 
the Board held a further public meeting in which it voted to approve 
Addendum II as a draft for public comment. Public hearings were held in 
three states in January 2001. Finally, in a public hearing dated 
February 1, 2001, the Lobster Board heard the results of the January 
public hearings and formally voted to approve Addendum II.
    Addendum III followed a similar process. After discussion at the 
LCMT level, the Lobster Board voted to draft Addendum III in a public 
meeting dated July 17, 2001. The Board then voted to approve Addendum 
III as a draft for public comment in a public meeting dated October 16, 
2001. Public Hearings were held in seven states in November and 
December 2001. The Lobster Board was informed of the results of the 
state hearings in a public meeting dated

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February 2, 2002 at which time it voted to formally approve the 
Addendum III.
    Addendum IV was the subject of multiple public meetings before the 
Lobster Board in 2002 and 2003. The Lobster Board approved Addendum IV 
as a draft for public comment in a public meeting dated August 28, 
2003. Public hearings were held in seven states in October and November 
2003. The Lobster Board was informed of the results of the states 
hearings in a public meeting dated December 17, 2003 at which time it 
voted to formally approve Addendum IV.
    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. In addition to 
a full suite of measures designed as the SNE Stock Rebuilding Program, 
the addendum, as it relates to this final rule, adopts the two 
additional Area 3 trap reductions of 2.5 percent, the Area 3 escape 
vent size increase, and the extension of the implementation of the 
escape vent increase to 2010.

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 Addendum II in February 2001 and request for 
complimentary Federal regulations. Since that time, NMFS has filed 
numerous public notices in the Federal Register seeking public comment 
on the recommendations made by the Commission in Addenda II, III and IV 
and XI. The Federal filings and notices were specified in detail in the 
Background section of this document. The Commission and the New England 
and Mid-Atlantic Fishery Management Councils were also invited to 
comment on the proposed rule, consistent with past actions, in letters 
dated June 20, 2007. No new issues were brought forward that had not 
already been considered in the EA/RIR/IRFA for this action. NMFS 
received six comments to its proposed Federal action, which are 
summarized and set forth below.

Comments and Responses

    The proposed rule for this regulatory action was published in the 
Federal Register on June 20, 2007 (72 FR 33955), and written public 
comments were solicited through August 6, 2007. In response to the 
request for public input, a total of six written comments were 
received.
    Comment 1: Five of the six respondents indicated their support for 
all the measures selected in this action as identified in the preferred 
alternative of the proposed rule and as explained in the following 
section of this document entitled, ``Regulatory Revisions Implemented 
by This Action.'' Specifically, these five respondents expressed their 
support for the gauge increase up to 3 1/2 inches (8.89 cm) by 2008, 
the escape vent size increase to 2 1/16 inches X 5 3/4 inches 
rectangular (5.24 cm X 14.61 cm) or two circular vents at 2 11/16 
inches diameter (6.82 cm) by July 1, 2010, and the full suite of trap 
reductions through 2010.
    Response: NMFS believes that these measures will provide the best 
means of addressing the fishing effort and broodstock protection needs 
of the fishery as identified in the most recent stock assessment and 
will best complement the efforts of the Commission in implementation of 
the ISFMP in support of consistent state and Federal regulations in 
Area 3.
    Comment 2: Three of the five commenters who wrote in support of the 
selected management measures also expressed their desire for NMFS to 
implement a trap transferability program for Area 3 as adopted into the 
Commission's ISFMP to allow eligible vessels to transfer portions of 
their lobster trap allocations, with a conservation tax included for 
each transaction to facilitate trap reductions in the Area 3 fishery.
    Response: NMFS is currently analyzing alternatives in an ongoing 
rulemaking action that considers the Commission's recommendations to 
implement the industry-proposed trap transferability program for Area 3 
and has chosen to not address that issue within the context of this 
final rule. An ANPR/Notice of Intent to prepare a draft environmental 
impact statement was published in the Federal Register on May 10, 2005 
(70 FR 24495), wherein NMFS indicated that an analysis of the potential 
management alternatives associated with Area 3 trap transferability is 
underway. The pending rulemaking that analyzes trap transferability is 
discussed in greater detail earlier in this final rule section where it 
is referred to as the ``second Addenda II - III rulemaking.''
    Comment 3: One commenter who supports the selected action inquired 
why this action did not include the maximum gauge size for Area 3 
recently adopted by the Commission.
    Response: The Area 3 maximum size is outside the scope of this 
rulemaking. The Area 3 maximum size was only recently adopted by the 
Commission in May 2007 as a component of Addendum XI to Amendment 3 of 
the ISFMP, after the scope of this rulemaking and associated impact 
analysis were completed. NMFS will address the Area 3 maximum size in a 
future rulemaking and that will include opportunities for public 
comment.
    Comment 4: One commenter does not support the concept of a minimum 
carapace length or escape vent for the management of the lobster 
fishery, although the commenter does support trap reductions as an 
effective means of reducing fishing effort. The commenter states that 
an increase in the minimum carapace length and escape vent size will 
reduce the efficiency of the lobster fleet by causing boats to retain 
fewer lobster in relation to the costs incurred to catch the lobster. 
The commenter suggests that the average size of landed lobster is too 
small due to an excessive removal rate of lobster by the fishing fleet. 
Therefore, a reduction in effort will reduce the removal rate and 
reduce the costs of harvesting lobster, while an increase in the 
minimum size and the escape vent will not reduce the costs of removing 
lobster.
    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 of such a 
theory is the subject of ongoing discussion within industry, academic 
and management circles. Resolution and/or consensus as to this theory's 
applicability to lobster management has not yet occurred. At present, 
the commenter's generally preferred approach has not been adopted by 
the Commission in its lobster ISFMP and is incongruent with, and might 
actually undermine, the Commission's present lobster management 
strategy. NMFS believes the commenter's approach is beyond the scope of 
the present action, although NMFS will continue to monitor, and as 
appropriate, participate in discussions on ways to improve management 
of the lobster resource. Comment 5: One

[[Page 56939]]

commenter is opposed to a maximum lobster carapace length since such a 
measure will reduce the size of the exploitable stock in terms of its 
contribution to the yield from the resource.
    Response: This action will not implement a maximum lobster carapace 
length in Area 3 or any other management area.

Changes From the Proposed Rule

    The following minor changes were made to the regulatory text since 
the publication of the proposed rule.

Edit 1

    The draft regulatory text in the proposed rule at Sec.  697.19(b) 
Trap limits for vessels fishing or authorized to fish in the EEZ 
Offshore Management Area, indicated that the current trap limits in for 
Federal lobster trap vessels in Area 3 are effective until November 1, 
2007. However, since the timing of publication of the final rule could 
not be predetermined at the time of drafting, and since the regulations 
filed in the final rule can not become effective until 30 days after 
publication of the final rule, the text was revised to explain that the 
current trap limits would remain in effect through the date that falls 
29 days after publication of the final rule in the Federal Register.

Edit 2

    Paragraph (2) of Sec.  697.19(b) Trap limits for vessels fishing or 
authorized to fish in the EEZ Offshore Management Area, initially 
referenced November 1, 2007 as the effective date for the 2007 trap 
limits in Area 3 associated with this action. However, since the exact 
publication date of the final rule could not be foreseen upon drafting, 
and since the regulations filed in the final rule can not become 
effective for 30 days after publication, the regulatory text was 
revised in the final rule to indicate that the 2007 trap reductions 
will be effective on the date that falls 30 days after the date of 
publication of the final rule in the Federal Register.

Edit 3

    Section 697.20(a)(5) Size, harvesting and landing requirements, was 
changed to indicate that the increase in the minimum carapace length to 
3 15/32 inches (8.81 cm) for American lobster harvested in or from Area 
3 is effective through June 30, 2008. Similarly, Sec.  697.20(a)(6) was 
also changed to indicate that the minimum carapace length for all 
American lobsters landed, harvested or possessed by vessels issued a 
Federal limited access American lobster permit fishing in or electing 
to fish in EEZ Offshore Management Area 3 is 3 15/32 inches (8.81 cm), 
through June 30, 2008. As initially written, these two paragraphs did 
not reference a date upon which this measure would no longer be 
effective. Since this rule implements an additional gauge increase 
effective on July 1, 2008, as clearly stated later in the same section 
of the regulatory text, the reference was made to June 30, 2008 to more 
succinctly specify the dates though which the first of the two gauge 
increases will remain in effect.

Regulatory Revisions Implemented by This Action

    This Federal lobster management action will implement the following 
specific management measures for LCMA 3 as described here.

Increase Minimum Carapace Length in Area 3

    To protect lobster broodstock NMFS will implement two additional 
gauge increases, resulting in a 3 1/2-inch (8.89-cm) minimum gauge size 
requirement for LCMA 3 by July 1, 2008. Most states have already begun 
the four-year gauge increase schedule, beginning in 2005, as mandated 
by the ISFMP. To remain consistent with the ISFMP, the Federal lobster 
minimum carapace length in LCMA 3 will increase to 3 15/32 inches (8.81 
cm) effective November 4, 2007. Effective July 1, 2008, the Federal 
lobster minimum carapace length in LCMA 3 will increase to 3 1/2 inches 
(8.89 cm). These measures are consistent with the gauge increases set 
forth in the ISFMP.

Increase Lobster Trap Escape Vent Size for Area 3 in 2010

    Under this action, and consistent with the Commission's 
recommendations in Addendum XI, NMFS will increase the LCMA 3 escape 
vent size to 2 1/16 inches X 5 3/4 inches rectangular (5.24 cm X 14.61 
cm) or two circular vents at 2 11/16 inches diameter (6.82 cm) by July 
1, 2010.

Area 3 Lobster Trap Reductions Through 2010

    By way of this rulemaking, NMFS will implement a suite of trap 
reductions in LCMA 3. First, Addendum IV to Amendment 3 of the ISFMP 
calls for a 10-percent trap reduction implemented over two consecutive 
years with a scheduled 5-percent reduction for 2007 and a 5-percent 
reduction in 2008. To address the need for further fishing mortality 
and fishing effort reductions in the offshore fishery as identified in 
the updated stock assessment released in 2005, the Board developed 
Addendum XI, that included consideration of an additional 5-percent 
reduction in traps in LCMA 3, to be implemented as a 2.5-percent 
reduction each year for two consecutive years following the initial 10-
percent trap reduction specified in Addendum IV. The Commission voted 
to approve draft Addendum XI for public comment on January 31, 2007, 
and subsequently Addendum XI was approved by the Commission in May 
2007, including the requirement for an additional 5-percent reduction 
in traps in LCMA 3. Table 1 illustrates the LCMA 3 gauge increases, 
escape vent size increases and the 10-percent trap reductions currently 
recommended in the ISFMP for Federal implementation. Also included in 
the table are the two additional 2.5-percent trap reductions for LCMA 3 
just approved by the Board in May 2007.

[[Page 56940]]



                                   Table 1. American Lobster ISFMP Gauge, Escape Vent and Trap Reduction Schedule for LCMA 3 and Corresponding Federal Action
                                                                                  [Measurements are in inches]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Current Federal Lobster                Addenda II-VIII, XI(Commission Recommendations)                     Changes to Federal Lobster Regulations
                                            Regulations           ------------------------------------------------------------------------------------------------------------------------------
              LCMA              ----------------------------------
                                      gauge            vent*               gauge                  vent*            trap reductions**           gauge             vent*        trap reductions**
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LCMA3                            3 3/8            2 X 5 3/4        3 3/8 July 2004        2 1/16 X 5 3/4         5% in July 2007        3 15/32 in Nov.     2 1/16 X 5 3/4  5% in Nov. 2007
                                                   rectangular     3 13/32 July 2005       rectangular           5% in July 2008         2007                rectangular    5% in July 2008
                                                  or               3 7/16 July 2006       or                     2.5% in July 2009      3 1/2 in July 2008  or              2.5% in July 2009
                                                  2 5/8 circular   3 1/2 July 2008        2 11/16 circular by    2.5% in July 2010                          2 11/16         2.5% in July 2010
                                                                                           2010                  3 15/32 in Nov. 2007                        circular by
                                                                                                                                                             2010
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* All vent sizes include a rectangular and corresponding circular vent size. In all cases, each trap is required to have one rectangular vent or two circular vents at the sizes indicated. The
  delay of the escape vent size increase until 2010 was adopted into the ISFMP in Addendum XI.
** The two 5% trap reductions scheduled for 2007 and 2008 were established in Addendum IV; the two 2.5% reductions were incorporated into the ISFMP in Addendum XI.

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 that term is defined in E.O. 13132.
    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 final rule will have on small 
entities. A description of the action, the reason for consideration, 
and its legal basis are contained in the Supplemental 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 (72 FR 33955, June 20, 2007) and is 
thus not repeated here. A copy of the IRFA, RIR, and the EA prepared 
for this action are available from the Northeast Regional Office (see 
ADDRESSES). A description of the action, it's reasons for 
consideration, and the legal basis for this action are contained in the 
SUMMARY section of the preamble and in the preamble to this final rule.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an 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. Copies of 
this final rule are available from the Northeast Regional Office (see 
ADDRESSES), and the guide will be sent to all holders of permits for 
the American lobster fishery as part of a permit holder letter. The 
guide and this final rule will be available upon request.

Summary of the Significant Issues Raised by the Public Comments

    A total of six written comments were received in response to the 
publication of the proposed rule for this action (72 FR 33955). No 
significant issues were raised about the IRFA or the economic effects 
of the rule in the public comments. A summary of the comments and 
Agency responses is provided in the preamble section of this document.

Description of and Estimate of the Number of Small Entities to Which 
the Proposed Rule Would Apply

    The selected action will have a potential effect on the 139 
federally permitted vessels with an Area 3 trap allocation. This action 
will also have a potential effect on federally permitted vessels that 
elected to fish lobster using non-trap gear of which there were 1,105 
in fishing year 2006. Gross sales for any one of these vessels would 
not exceed the small business size standard for commercial fishing of 
$4 million. Therefore, all 1,244 fishing businesses are considered 
small entities for purposes of the Regulatory Flexibility Act (RFA).
    The selected action would only change regulations for trap and non-
trap vessels fishing in Area 3; only vessels that actually fished or 
intend to fish in Area 3 would be effected. Available data indicate 
that 87 of the 139 vessels with an Area 3 trap allocation and 265 non-
trap vessels actually landed lobster while fishing Area 3 for a total 
of 352 small entities (about 30 percent of the total number of 
potentially effected permit holders) that have demonstrated recent 
participation in the Area 3 lobster fishery.
    The Commission has lead responsibility for managing lobster and 
developing a regulatory framework for implementation by the individual 
member states and making recommendations for complementary action by 
the Federal Government. Since nearly all permit holders must be 
licensed in a state and are bound by the most restrictive management 
measures no matter where they fish, Federal action will have added 
economic impact only in cases where the federal regulation is more 
restrictive than any given state regulation. This Federal action will 
either align Federal regulations with existing state regulations or 
anticipates highly probable state actions to be taken in the future.

Economic Impacts of the Selected Action

Minimum Size Increases

    The ISFMP calls for a series of scheduled increases of 1/32 inch 
(0.08 cm) from 3 3/8 inches (8.57 cm) in Area 3 in 2004 to 3 1/2 inches 
(8.89 cm) by July 2008. These scheduled gauge

[[Page 56941]]

increases have already been implemented by all states except for New 
Jersey, Connecticut and the de minimis states. Currently, the minimum 
Federal gauge size in Area 3 is 3 3/8 inches (8.57 cm). However, since 
the majority of lobster trap and non-trap vessels are licensed in 
states that have already implemented the ASMFC recommended size 
increases for Area 3, only 21 of the participating federally permitted 
trap and non-trap vessels are currently able to retain lobster at the 
lower Federal minimum gauge. This action will raise the gauge to 3 15/
32 inches (8.81 cm) in 2007 and to 3 1/2 inches (8.89 cm) in July 2008. 
This schedule replicates what has already been implemented by most 
states and will affect the 21 participating Area 3 vessels that are 
currently licensed in states that have not implemented the recommended 
gauge size.
    The economic impact on these vessels is uncertain but is expected 
to be low for the 6 affected trap vessels and even lower for the 15 
affected non-trap vessels. That is, lobsters landed from Area 3 tend to 
be larger than lobsters landed elsewhere. For example, sea sampling 
data indicate that the minimum carapace length for 98 percent of non-
trap lobster landings on observed trips was at least 3 1/2 inches (8.89 
cm) in both 2004 and 2005. Assuming the size distribution of the trap 
gear catch is similar to that of non-trap gear the majority of lobster 
income by either trap or non-trap vessels will be unaffected by the 
increase in the Area 3 Federal gauge. However, non-trap vessel impacts 
are likely to be proportionally lower than that of the trap vessels 
because lobster comprises only a small percentage of total fishing 
income for non-trap vessels.

Escape Vent Size Increase

    When the draft Environmental Assessment was conducted to evaluate 
the impacts of this action, the Commission had not yet adopted Addendum 
XI. However, although the preferred alternatives associated with the 
delay of the escape vent size increase and two additional 2.5-percent 
trap reductions were not yet incorporated into the ISFMP, the draft EA/
RIR/IRFA did analyze these measures. At present, the NMFS final rule is 
consistent with the current ISFMP, as amended in May 2007 with the 
adoption of Addenda XI, and will delay implementation of increase in 
vent size to 2 1/16 x 5 3/4 inches (5.24 cm x 14.61 cm) rectangular or 
2 11/16 inches (6.83 cm) circular until 2010 instead of 2008, as 
originally adopted by the Commission.
    Delaying the escape vent size will have no effect on non-trap 
vessels but will provide some economic relief to any vessel that fished 
traps in Area 3. The larger escape vent size will allow any sub-legal 
and some legal sized lobsters to escape. Delaying the increase in 
escape vent size will theoretically allow for the retention of all 
legal-sized lobsters that enter the trap and provide some compensation 
for the change in the minimum gauge size since more legal-sized 
lobsters would be retained. Note that all vessels will still be 
required to bear the cost of replacing non-conforming escape vents but 
the two-year delay in implementation provides sufficient additional 
income to offset the cost of replacing escape vents. This measure will 
also maintain consistency between the state escape vent size 
requirements for Area 3 as dictated by the ISFMP, and Federal 
regulations.

Trap Reduction

    This action will implement reductions in individual trap 
allocations of 5 percent in each of 2007 and in July 2008, and the two 
additional reductions in individual allocations; 2.5 percent in 2009 
and another 2.5 percent in 2010, consistent with the trap reductions 
adopted by the Commission. Since the majority of states have already 
implemented the scheduled Area 3 trap reductions for 2007 and 2008 
Federal action will not impose any added economic costs on the majority 
of participating Area 3 trap vessels. Federal action will affect an 
estimated 13 trap vessels from New Jersey and the de minimis states 
since these states have yet to enact the 5-percent Area 3 trap 
reductions for 2007 and 2008. Furthermore, the states of Connecticut 
and Rhode Island have adopted the first two 5-percent reductions but 
their respective regulations do not specify the two additional 2.5-
percent reductions as adopted by the Commission in May 2007. With the 
exception of the de minimis states who are not required to implement 
the trap reductions, each state is expected to adopt the full suite of 
Area 3 trap reductions as required by the ISFMP. Should Connecticut and 
Rhode Island fail to implement these additional reductions, this 
Federal action will impact the 49 Federally-permitted lobster trap 
vessels hailing from these states that would otherwise be regulated by 
state-implemented reductions, in addition to the 13 vessels from New 
Jersey and the de minimis states that will be impacted if those states 
do not implement the two 5-percent reductions and the two 2.5-percent 
reductions. Therefore, between 3 (total vessels from the de minimis 
states) and 62 vessels may be impacted by this Federal action depending 
on the extent to which New Jersey, Connecticut and Rhode Island enact 
the trap reductions.
    Regardless of whether states or the Federal Government implement 
trap reductions the economic impact on small entities is difficult to 
quantify with precision, but is expected to be minimal. Fishing 
strategy adaptation, such as tending traps more frequently and the 
decreased operating costs associated with fishing less traps, can often 
offset the economic impacts associated with reduced trap allocations. 
Therefore, the realized impact on landings and revenue is uncertain but 
is expected to be small. There may be differences in impact, however, 
among Area 3 participants that fish in other LCMAs if their Area 3 trap 
allocation falls below the number of traps they may be eligible to fish 
in another management areas. Specifically, due to the Federal 
definition of the most restrictive provision, any vessel with an Area 3 
trap allocation which falls below the number of traps that may be 
fished by that vessel in another management area will be limited to the 
lowest area-specific trap allocation of all areas indicated for trap 
fishing on the vessel's federal permit. For example, a vessel eligible 
for 800 Area 3 traps, designating both Area 1 and Area 3 on the Federal 
permit, can fish a combined total of 800 traps in Area 1 and Area 3. In 
2007, however, after the same vessel's Area 3 allocation declines to 
760 traps under the trap reduction scenario associated with this 
action, the number of traps that can be fished in Area 1 will also be 
limited to 760 traps even though other Area 1 participants will be able 
to fish 800 traps.
    The number of vessels impacted by this situation is contingent upon 
the areas designated on the Federal permit and the business practices 
employed by each small entity. It is also contingent upon the 
interpretation of the most restrictive rule as practiced by affected 
states. Consequently, some Area 3 participants in this situation, 
depending on their chosen course of action in defining their fishing 
practices, may endure reductions in nearshore trap allocations as a 
result of Area 3 trap reductions since their Area 3 allocations are 
below or will fall below their nearshore trap allocation. In 
consideration of these variables, this action may potentially impact 
the nearshore allocations of between 22 and 49 Federal lobster vessels 
over the four-year trap reduction period. This is a conservative 
estimate that includes all

[[Page 56942]]

eligible Area 3 trap vessels that may potentially elect Area 3 and 
whose Area 3 trap allocations are below or will fall below their 
nearshore area allocation due to the Area 3 trap reductions. However, a 
more real-time estimate considers only the subset of vessels which 
actively designated Area 3 on the 2006 Federal permit, equating to 
between 22 and 26 vessels over the four-year trap reduction period.
    Overall, this impact is not considered to be significant since it 
will only affect a small number of vessels and since reductions in the 
number of traps are not necessarily correlated with reductions in 
catch, especially considering the differences in how traps are fished 
with respect to depth, seasons, area, soak time and other factors. 
Small-scale trap reductions at this level may have some overall 
benefits by reducing the costs to a fishing operation associated with 
fishing time and bait and fuel costs. NMFS is presently analyzing its 
application of the most restrictive trap standard as part of a separate 
rulemaking.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: September 25, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR chapter VI, part 697, 
is amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

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

0
2. In Sec.  697.19, paragraph (b) is revised to read as follows:


Sec.  697.19  Trap limits and trap tag requirements for vessels fishing 
with lobster traps.

* * * * *
    (b) Trap limits for vessels fishing or authorized to fish in the 
EEZ Offshore Management Area. (1) Effective through November 3, 2007, 
vessels fishing only in or issued a management area designation 
certificate or valid limited access American lobster permit specifying 
only EEZ Offshore Management Area 3, or, specifying only EEZ Offshore 
Management Area 3 and the Area 2/3 Overlap, may not fish with, deploy 
in, possess in, or haul back from such areas more than the number of 
lobster traps allocated by the Regional Administrator pursuant to the 
qualification process set forth at Sec.  697.4(a)(7)(vi) and the 
maximum trap limits identified in Table 1, Column 2 to this part, 
except as noted in paragraphs (c) and (e) of this section.
    (2) Beginning November 4, 2007, vessels fishing only in or issued a 
management area designation certificate or valid limited access 
American lobster permit specifying only EEZ Offshore Management Area 3, 
or, specifying only EEZ Offshore Management Area 3 and the Area 2/3 
Overlap, may not fish with, deploy in, possess in, or haul back from 
such areas more than the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4(a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 3, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (3) Beginning July 1, 2008, vessels fishing only in or issued a 
management area designation certificate or valid limited access 
American lobster permit specifying only EEZ Offshore Management Area 3, 
or, specifying only EEZ Offshore Management Area 3 and the Area 2/3 
Overlap, may not fish with, deploy in, possess in, or haul back from 
such areas more than the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4(a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 4, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (4) Beginning July 1, 2009, vessels fishing only in or issued a 
management area designation certificate or valid limited access 
American lobster permit specifying only EEZ Offshore Management Area 3, 
or, specifying only EEZ Offshore Management Area 3 and the Area 2/3 
Overlap, may not fish with, deploy in, possess in, or haul back from 
such areas more than the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4(a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 5, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (5) Beginning July 1, 2010, and beyond, vessels fishing only in or 
issued a management area designation certificate or valid limited 
access American lobster permit specifying only EEZ Offshore Management 
Area 3, or, specifying only EEZ Offshore Management Area 3 and the Area 
2/3 Overlap, may not fish with, deploy in, possess in, or haul back 
from such areas more than the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4(a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 6, to this part, except as noted in paragraphs (c) and 
(e) of this section.
* * * * *

0
3. In Sec.  697.20, paragraphs (a)(3) through (a)(5) are revised and 
paragraph (a)(6) through (a)(9) are added to read as follows:


Sec.  697.20  Size, harvesting and landing requirements.

    (a) * * *
    (3) The minimum carapace length for all American lobsters harvested 
in or from the EEZ Nearshore Management Area 2, 4, 5 and the Outer Cape 
Lobster Management Area is 3 3/8 inches (8.57 cm).
    (4) The minimum carapace length for all American lobsters landed, 
harvested or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in EEZ Nearshore 
Management Area 2, 4, 5 and the Outer Cape Lobster Management Area is 3 
3/8 inches (8.57 cm).
    (5) Through June 30, 2008, the minimum carapace length for all 
American lobsters harvested in or from the Offshore Management Area 3 
is 3 15/32 inches (8.81 cm).
    (6) Through June 30, 2008, the minimum carapace length for all 
American lobsters landed, harvested or possessed by vessels issued a 
Federal limited access American lobster permit fishing in or electing 
to fish in EEZ Offshore Management Area 3 is 3 15/32 inches (8.81 cm).
    (7) Effective July 1, 2008, the minimum carapace length for all 
American lobsters harvested in or from the Offshore Management Area 3 
is 3 1/2 inches (8.89 cm).
    (8) Effective July 1, 2008, the minimum carapace length for all 
American lobsters landed, harvested or possessed by vessels issued a 
Federal limited access American lobster permit fishing in or electing 
to fish in EEZ Offshore Management Area 3 is 3 1/2 inches (8.89 cm).
    (9) No person may ship, transport, offer for sale, sell, or 
purchase, in interstate or foreign commerce, any whole live American 
lobster that is smaller than the minimum size specified in paragraph 
(a) of this section.
* * * * *

0
4. In Sec.  697.21, paragraph (c) is revised to read as follows:


Sec.  697.21  Gear identification and marking, escape vent, maximum 
trap size, and ghost panel requirements.

* * * * *

[[Page 56943]]

    (c) Escape vents. (1) All American lobster traps deployed or 
possessed in the EEZ Nearshore Management Area 1 or the EEZ Nearshore 
Management Area 6 or, deployed or possessed by a person on or from a 
vessel issued a Federal limited access American lobster permit fishing 
in or electing to fish in the EEZ Nearshore Management Area 1 or the 
EEZ Nearshore Management Area 6, must include either of the following 
escape vents in the parlor section of the trap, located in such a 
manner that it will not be blocked or obstructed by any portion of the 
trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
1 15/16 inches (4.92 cm) by 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 7/16 inches (6.19 cm) in diameter.
    (2) All American lobster traps deployed or possessed in the EEZ 
Nearshore Management Area 2, 4, 5, and the Outer Cape Lobster 
Management Area, or, deployed or possessed by a person on or from a 
vessel issued a Federal limited access American lobster permit fishing 
in or electing to fish in the EEZ Nearshore Management Area 2, 4, 5, 
and the Outer Cape Lobster Management Area, must include either of the 
following escape vents in the parlor section of the trap, located in 
such a manner that it will not be blocked or obstructed by any portion 
of the trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 inches (5.08 cm) 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 5/8 inches (6.67 cm) in diameter.
    (3) Effective through June 30, 2010, all American lobster traps 
deployed or possessed in the EEZ Offshore Management Area 3, or 
deployed or possessed by a person on or from a vessel issued a Federal 
limited access American lobster permit fishing in or electing to fish 
the EEZ Offshore Management Area 3, must include either of the 
following escape vents in the parlor section of the trap, located in 
such a manner that it will not be blocked or obstructed by any portion 
of the trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 inches (5.08 cm) 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 5/8 inches (6.67 cm) in diameter.
    (4) Effective July 1, 2010, all American lobster traps deployed or 
possessed in the EEZ Offshore Management Area 3, or deployed or 
possessed by a person on or from a vessel issued a Federal limited 
access American lobster permit fishing in or electing to fish in the 
EEZ Offshore Management Area 3, must include either of the following 
escape vents in the parlor section of the trap, located in such a 
manner that it will not be blocked or obstructed by any portion of the 
trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 1/16 inches (5.24 cm) X 5 3/4 inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2 11/16 inches (6.82 cm) in diameter.
    (5) The Regional Administrator may, at the request of, or after 
consultation with, the Commission, approve and specify, through a 
technical amendment of this final rule, any other type of acceptable 
escape vent that the Regional Administrator finds to be consistent with 
paragraph (c) of this section.
* * * * *

0
5. In part 697, Table 1 to part 697 is revised to read as follows:

                                                  Table 1 to Part 697 - Area 3 Trap Reduction Schedule
--------------------------------------------------------------------------------------------------------------------------------------------------------
     HISTORIC Trap Allocation       Year 2006 Trap       Year 1 - 5% Trap          Year 2 - 5% Trap        Year 3- 2.5% Trap        Year 4 - 2.5% Trap
----------------------------------    Allocation       Reduction Effective       Reduction Effective      Reduction Effective      Reduction Effective
                                  -----------------       November 2007              July 1, 2008             July 1, 2009             July 1, 2010
             Column 1                              -----------------------------------------------------------------------------------------------------
                                       Column 2              Column 3                  Column 4                 Column 5                 Column 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
200                                200              190                        181                      176                      172
--------------------------------------------------------------------------------------------------------------------------------------------------------
240                                240              228                        217                      211                      206
--------------------------------------------------------------------------------------------------------------------------------------------------------
250                                250              238                        226                      220                      214
--------------------------------------------------------------------------------------------------------------------------------------------------------
264                                264              251                        238                      232                      226
--------------------------------------------------------------------------------------------------------------------------------------------------------
300                                300              285                        271                      264                      257
--------------------------------------------------------------------------------------------------------------------------------------------------------
320                                320              304                        289                      282                      275
--------------------------------------------------------------------------------------------------------------------------------------------------------
325                                325              309                        293                      286                      279
--------------------------------------------------------------------------------------------------------------------------------------------------------
360                                360              342                        325                      317                      309
--------------------------------------------------------------------------------------------------------------------------------------------------------
370                                370              352                        334                      326                      317
--------------------------------------------------------------------------------------------------------------------------------------------------------
400                                400              380                        361                      352                      343
-------------------------------------------------------------------------------------------------------------------------------------------