Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, 37530-37551 [E9-17941]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 697

[Docket No. 070717357-91069-03]
RIN 0648-AV77


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Final rule.

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SUMMARY:  NMFS announces new Federal American lobster (Homarus 
americanus) regulations which implement a mandatory Federal lobster 
dealer electronic reporting requirement, changes to the maximum 
carapace length regulations for several lobster conservation management 
areas (LCMAs/Areas), and a modification of the v-notch definition for 
protection of egg-bearing female American lobsters in certain LCMAs.

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

ADDRESSES: Copies of the American Lobster Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this regulatory action are available upon written 
request to Harold C. Mears, Director, State, Federal and constituent 
Programs Office, NMFS, 55 Great Republic Drive, Gloucester, MA 01930, 
telephone (978) 281-9327. The documents are also available online at 
https://www.nero.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the mailing address listed above and by 
e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

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

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

[[Page 37531]]

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

Statutory Authority

    This final rule modifies the Federal lobster regulations in the 
Exclusive Economic Zone (EEZ) under the authority of section 803(b) of 
the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic 
Coastal Act) 16 U.S.C. 5101 et seq., which states, in the absence of an 
approved and implemented Fishery Management Plan under the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act 
(Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, after consultation 
with the appropriate Fishery Management Council(s), the Secretary of 
Commerce may implement regulations to govern fishing in the EEZ, i.e., 
from 3 to 200 nautical miles (nm) offshore. The regulations must be (1) 
compatible with the effective implementation of an ISFMP developed by 
the Commission and (2) consistent with the national standards set forth 
in section 301 of the Magnuson-Stevens Act.

Purpose and Need for Management

    One purpose of this action is to improve the availability and 
utility of fishery-dependent lobster data to meet the need for a more 
comprehensive baseline for assessing the status of lobster stocks 
coastwide. It also will provide NMFS with a complete set of trip-level 
harvest data from all Federal lobster dealers for use in cooperative 
and internal policy decisions and analyses. Additionally, this action 
will enhance lobster broodstock protection, facilitate enforcement of 
lobster measures, and aid in resource assessment by revising American 
lobster maximum carapace size and v-notch requirements, consistent with 
the recommendations of the Commission in the ISFMP. Finally, this rule 
expands the curtain of protection on broodstock lobster migrating among 
lobster management areas by extending the revised maximum carapace size 
and v-notch requirements to the Outer Cape Management Area. As 
referenced in the EA for this action, the Outer Cape lobster fishery is 
categorized as fishing on a population of transient lobsters migrating 
between inshore and offshore areas. Therefore, the expansion of the 
broodstock measures in the Outer Cape Area complements those measures 
in adjacent areas which may augment long-term biological benefits on a 
multi-area and multi-stock basis and aid in resource assessment since 
the Outer Cape Area overlaps all three lobster stock areas.
    The need for action is rooted in the 2005 peer-reviewed American 
lobster stock assessment and in recommendations in a subsequent peer 
review panel report. The findings of the stock assessment and peer 
review panel prompted the Commission to take action by adopting 
measures to address the need for improved fishery data collection and 
broodstock protection. The Commission took action to address these 
issues through the adoption of Addendum X and Addendum XI to Amendment 
3 of the ISFMP. The focus of this rulemaking is on the mandatory dealer 
reporting requirements in Addendum X and the broodstock protection 
measures of Addendum XI. This action also will facilitate enforcement 
and resource assessment by aligning measures of different management 
areas that fish on a common lobster stock.
    A new stock assessment was completed and approved by the 
Commission's Lobster Management Board in May 2009 and released to the 
Lobster Technical Committee for recommendations on future management 
measures to address the concerns raised by the assessment. Due to the 
timing of this Federal regulatory action, the Lobster Technical 
Committee recommendations are not available for incorporation in this 
document. However, a review of the assessment information available 
when this rule was prepared suggests that the measures identified in 
this action will not be contrary to the assessment results.

Background

    American lobsters are managed within the framework of the 
Commission. The Commission serves to develop fishery conservation and 
management strategies for certain coastal species and coordinates the 
efforts of the states and Federal Government toward concerted 
sustainable ends. The Commission decides upon a management strategy as 
a collective and then forwards that strategy to the states and Federal 
Government, along with a recommendation that the states and Federal 
Government take action (e.g., enact regulations) in furtherance of this 
strategy. The Federal Government is obligated by statute to support the 
Commission's ISFMP and overall fishery management efforts.
    In support of the ISFMP, NMFS revises the Federal American lobster 
regulations in response to the Commission's recommendations for Federal 
action in Addenda X and XI. The addenda were themselves a response, at 
least in part, to conclusions contained in the 2005 lobster stock 
assessment. More specifically, the 2005 stock assessment and peer 
review process identified the dearth of landings data in the American 
lobster fishery as an inhibitor to the effective evaluation of the 
status of the lobster resource, that available data are woefully 
inadequate to fulfill the management needs of the

[[Page 37532]]

resource, and that a mandatory catch reporting system is needed. Such 
conclusions provided the impetus for Addendum X's reporting 
requirements, which initiated this action to implement the mandatory 
Federal dealer reporting requirement.
     This same 2005 assessment and peer review process concluded that 
the Southern New England (SNE) lobster stock is suffering from depleted 
stock abundance and recruitment with high dependence on new recruits. 
The SNE stock component is in poor shape with respect to spawning, 
recruit and full-recruit abundance indices. The assessment results also 
indicated that the Georges Bank (GBK) lobster stock, although in a 
stable state with respect to abundance and recruitment, is also 
dependent on new entrants to the fishery a cause for concern that the 
fishery is too reliant on newly recruited lobster. These issues 
prompted the Commission to adopt Addendum XI, which sought to protect 
SNE broodstock lobsters by creating new maximum carapace lengths and 
implementing a more restrictive definition of a v-notch in certain 
Lobster Management Areas. Accordingly, NMFS published a proposed rule 
in the Federal Register on October 6, 2008 (73 FR 58099) which 
presented the following three independent regulatory actions for public 
comment:
    (1) Requiring all Federal lobster dealers to electronically report 
trip-level lobster landings to NMFS on a weekly basis;
    (2) Establishing a maximum carapace length restriction for lobster 
in Area 2, Area 3, Area 6, and the Outer Cape Management Area and 
revising the maximum carapace length requirements for Areas 4 and 5; 
and
    (3) Revising the Federal definition of a standard v-notched 
lobster, applicable to lobster in all areas, with the exception of Area 
1.
    Three alternatives for each of the three proposed regulatory 
actions were analyzed in a draft Environmental Assessment (EA) and 
included: a status quo (no action) alternative; an alternative to 
implement the Commission's ISFMP recommendations in Addendum X and XI; 
and a third modified alternative which varies in certain aspects from 
the Commission recommendations, but still would be compatible with the 
Commission's ISFMP. Specifically, with respect to issue (1) - Dealer 
Reporting - the preferred alternative would have implemented weekly, 
trip-level electronic reporting requirements for all Federal lobster 
dealers within 30 days of publication of the final rule. The modified 
option allowed for a one-year delay in the implementation of the 
measure. This final rule finds a middle ground between the two options 
by requiring all Federal American lobster dealers to comply with 
electronic reporting requirements beginning several months after 
publication of this rule, effective January 1, 2010. The decision is 
based on public comments (five in favor of mandatory dealer reporting 
and four in opposition, See Comments and Responses) in response to the 
proposed rule that electronic reporting requirements may be expensive 
for dealers who do not currently own computers. The EA prepared for 
this action determined that delaying the requirements would reduce 
short-term costs of acquiring Internet service, for those who did not 
already have it, during that interim year. Additionally, a delay would 
provide more time for affected dealers to obtain the required equipment 
and otherwise adjust their business practices to accommodate electronic 
reporting. Some affected dealers may choose to offset costs by 
obtaining the file upload software through a NMFS contractor, at no 
cost to the impacted dealer. The no-cost option could mitigate some of 
the financial impact to Federal lobster dealers who now will be subject 
to mandatory dealer reporting on January 1, 2010. Additionally, 
delaying implementation of the dealer reporting program until January 
1, 2010 will allow for a more seamless integration of the new dealers 
into the data collection program since the effective date coincides 
with the start of the annual Federal dealer reporting period which is 
January 1. All dealer data are entered into the Standard Atlantic 
Fisheries Information System (SAFIS).
    With respect to the broodstock protection measures of this rule: 
Issue (2)- Maximum Size Restrictions; and Issue (3) - Revisions to the 
V-Notch Definition, NMFS analyzed two options in addition to the no 
action alternative. These options included the straight Commission 
recommendations that would not extend the broodstock measures to the 
Outer Cape Area and a modified alternative that would include the Outer 
Cape Area.
    NMFS received many comments from the Outer Cape industry in 
opposition to the expansion of the broodstock measures into the Outer 
Cape (See Comments and Responses). The general theme of the comments 
was that the proposed broodstock measures would affect a higher 
percentage of the catch than the NMFS analysis in the draft EA had 
determined and would, consequently, have greater economic impacts. In 
an effort to understand industry concerns with the proposed rule, NMFS 
attended an Outer Cape Lobster Conservation Management Team (LCMT) 
meeting in Chatham, MA on November 10, 2008, which occurred during the 
comment period for the proposed rule. This industry meeting, 
facilitated by the Massachusetts Division of Marine Fisheries (MA DMF), 
was widely attended by the Outer Cape lobster fishing sector as well as 
members and proxies of the Massachusetts state legislature and local 
media.
    NMFS listened to the concerns of the industry during the meeting 
and encouraged the public to submit written comments by the end of the 
comment period. At the suggestion of the industry during the meeting, 
NMFS agreed to review data from an ongoing expanded sea sampling 
program designed to further evaluate the potential impacts of the 
proposed measures on the Outer Cape lobster fishing sector. Conducted 
as a cooperative effort between MA DMF and the Outer Cape industry, the 
expanded sea sampling program in 2008 was initiated to more accurately 
document the impacts of the broodstock measures in the Outer Cape 
Management Area.
    Accordingly, in 2008, MA DMF enhanced its ongoing sea sampling 
program by doubling the number of Outer Cape sea sampling trips for the 
2008 sampling year. Normally, MA DMF takes 14 sea sampling trips from 
the Outer Cape ports of Chatham and Nauset from May through November of 
each year (seven trips from each of Chatham (southern part of the Outer 
Cape Area) and Nauset (central part of the Outer Cape Area)). However, 
for this expanded 2008 program MA DMF completed an additional 14 Outer 
Cape sea sampling trips during the sampling season. All 14 additional 
trips were conducted aboard vessels operating out of the port of 
Provincetown (northern part of the Outer Cape Area), a port not 
previously included in MA DMF's lobster sea sampling program.
    NMFS received the completed analysis of the expanded sea sampling 
program from MA DMF on February 11, 2009. Upon review of the MA DMF 
analysis (MA DMF Report) of the enhanced sea sampling program data, 
NMFS chose to support the preferred alternative to expand the 
broodstock measures into the Outer Cape Area, as the information in the 
report did not contradict the rationale for expanding the broodstock 
measures to include the Outer Cape Area. However, in consideration of 
the comments and concerns of the Outer Cape industry as

[[Page 37533]]

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

[[Page 37534]]

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

Description of the Public Process

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

1. Commission Public Process

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

[[Page 37535]]

management action is warranted, it will so advise the Lobster Board, 
which would then likely charge the LCMTs to develop a plan to address 
the problem or need. The LCMTs most often comprised of industry 
representatives will conduct a number of meetings open to the public 
wherein they will develop a plan or strategy, i.e., remedial measures, 
in response to the Lobster Board's request. The LCMTs then vote on the 
plan and report the results of their vote back to the Lobster Board. 
Minutes of the LCMT public meetings can be found at the Commission's 
website at 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 debates the 
proposed measures in an open forum whenever the Board convenes (usually 
four times per year, one time in each of the spring, summer, fall and 
winter seasons). Meeting transcripts of the Lobster Board can be found 
at the Commission's website at 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 need for the Federal action is rooted in the 2005 peer-reviewed 
American lobster stock assessment and in recommendations in a 
subsequent peer review panel report. The findings of the stock 
assessment and peer review panel prompted the Commission to take action 
by adopting measures to address the need for improved fishery data 
collection and broodstock protection. The Commission took action to 
address these issues through the adoption of Addendum X and Addendum XI 
to Amendment 3 of the ISFMP. The focus of this rulemaking is on the 
mandatory dealer reporting requirements in Addendum X and the 
broodstock protection measures of Addendum XI.
    Addendum X was approved by the Board in February 2007 to augment 
and enhance fisheries-dependent and fisheries-independent data 
collection efforts at the state and Federal level and set forth an 
expanded coastwide mandatory reporting and data collection program. The 
program set coastwide standards for the submission of dealer and 
harvester reports, sea and port sampling and trawl surveys. The purpose 
of the addendum was to address the concerns of inadequate data for use 
in fishery assessments as indicated in the 2005 stock assessment peer-
review process.
    Addendum XI was released for public comment as a draft document in 
April 2007 and responded to the findings of the 2005 peer-reviewed 
stock assessment regarding the need for the development of management 
measures to address the depleted abundance, low recruitment and high 
fishing mortality rates in the SNE stock. Several states held public 
hearings on the draft addendum in April 2007 and the final addendum was 
approved by the Commission's Lobster Board in May 2007. Addendum XI 
includes a full suite of management measures designed as the SNE Stock 
Rebuilding Program. Certain measures in the Addendum XI SNE Stock 
Rebuilding Program, such as the Area 3 minimum gauge size increase and 
escape vent size increase, and two additional Area 3 trap reductions of 
2.5 percent, were implemented by NMFS in a separate rulemaking 
published in the Federal Register (72 FR 56935). The dealer reporting 
requirements and broodstock protection measures of the SNE Stock 
Rebuilding Program are addressed here in this final rule.

2. Federal Public Process

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

Comments and Responses

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

[[Page 37536]]

reporting requirements. Similar to those received in response to the 
ANPR for this action as addressed in the proposed rule, the comments in 
opposition to the electronic dealer reporting requirements were 
received from two lobster dealers, the State of Maine Department of 
Marine Resources (ME DMR), and a lobster fishermen's organization. The 
general theme of these comments was that mandatory weekly electronic 
reporting would add more administrative burden to affected lobster 
dealers and would be redundant since many dealers are already providing 
the data to their respective state fisheries agency.
    Thirty-two comments were received in opposition to the inclusion of 
the Outer Cape Area under the expanded broodstock protection measures. 
Seven comments were received in general support of the broodstock 
protection measures, while four individuals wrote to support the 
expansion of the broodstock measures into the Outer Cape Area. Three 
commenters opposed the broodstock protection measures in management 
areas other than the Outer Cape Area.
    Two comments opposing the maximum size requirements were received 
by a mid-Atlantic pot gear fisherman and a recreational diving group. 
Representatives of the offshore lobster fishing sector wrote in favor 
of the dealer reporting, maximum size and v-notching requirements. Two 
fishermen recommended consistent measures throughout all lobster 
management areas and one fisherman commented that more restrictive 
broodstock measures are needed coastwide.
    The significant comments and the NMFS response to each comment are 
provided here.
    Comment 1: Two lobster dealers from Maine wrote in opposition to 
the mandatory electronic dealer reporting requirement, generally 
stating that this measure would unnecessarily add to the reporting 
burden already mandated by the state.
    Response: NMFS understands that there might be a small amount of 
redundancy for those Federally permitted dealers who also have a state 
dealer permit and who are thus already bound to report by virtue of 
their state permit. Generally, these requirements mirror those of state 
agencies as both NMFS and the states use the same SAFIS system (see 
Changes to Existing Regulations). By design, users meet the 
requirements of all relevant regulatory entities. On balance, NMFS 
believes that the utility of electronic reporting outweighs the burden 
associated with the minority of dealers who would have to report both 
electronically and by paper. More specifically, the majority of Federal 
lobster permit dealers, approximately 71 percent, already have to 
report electronically. Collection and assembly of the requisite data 
likely the most time intensive task is a one-time event that must occur 
regardless of the format in which the data is ultimately reported (and 
such data is undoubtedly being collected by the business in some form 
as part of the dealer's regular business practices). Although there 
might be some start-up costs associated with electronic reporting, 
computer reporting is intuitively more efficient and less time 
intensive than having to write the data out and submit it in paper 
format. Whether computer reporting would ultimately result in new 
efficiencies in every case is difficult to gauge and might be dependent 
on individuals on a case by case basis.
    In adopting the mandatory electronic Federal lobster dealer 
reporting, NMFS balances the relatively small additional burden against 
the utility gained by the requirement. First, there is great utility 
for Federal managers having access to, and thus having their decisions 
guided by, up-to-date harvest information. Electronic reporting allows 
for far more expedient collection of data than can be accomplished 
through a paper reporting system. The submission of paper reports is 
cumbersome and the data are not consistently loaded by the states into 
the SAFIS system in a timely manner. Some states require trip-level 
dealer reports be submitted on a monthly basis and upon receipt, state 
employees enter in the data. Consequently, the data may not reach the 
SAFIS system until several weeks or more after a particular lobster 
fishing trip which could hamper fisheries management and assessment 
efforts and limit the availability and utility of the dataset for 
internal needs. Conversely, under the proposed electronic reporting 
process, once received, the data is already in the system, with no data 
entry or handling of paper reports needed. Some states may even 
eliminate their paper-based reporting requirements for those state 
dealers who would be required under a Federal mandatory reporting 
program to report to NMFS on an electronic basis, although such an 
outcome is speculative.
    Second, NMFS believes that data received through different systems 
can undermine the integrity and usefulness of the data. When similar 
data elements are collected in an inconsistent manner, the ability to 
efficiently utilize that information is compromised. NMFS finds it 
advantageous for its data to be collected in consistent fashion, such 
as through the use of the SAFIS system, not only for administrative 
efficiencies (NMFS already has a successful and tested electronic 
reporting system in place for other species), but for the statistical 
integrity of collecting similar data sets for a single species by the 
same means. Further, NMFS's experience suggests that while overall 
compliance with Commission plans is excellent, states do not always 
interpret, and are not always able to implement, the plans consistently 
and uniformly. Accordingly, NMFS believes it more prudent in this 
instance to mandate a single uniform Federal lobster dealer reporting 
system rather than rely on the eleven states on the Lobster Board to 
submit data for certain Federal dealers according to the individual 
state's reporting program.
    Comment 2: One dealer wrote that he purchases lobster from 
fishermen who drop off their catch on a floating lobster car. The 
lobster are dropped off by fishermen when the dealer is not there, 
complicating the ability to garner specific data on the statistical 
area and time the lobster where harvested.
    Response: The Commission's plan recommends that the dealer provide 
the statistical area where the lobster were harvested. The Final Rule 
does not implement such a requirement. NMFS has considered but rejected 
this recommendation and has not adopted a fishing area data collection 
requirement for dealers. NMFS believes that lobster harvesting 
information is best provided by the harvester, not the dealer.
    Comment 3: Some commenters commented that dealer reporting for 
lobster is not necessary since lobster is not a quota-managed species 
and the data are not needed on a weekly basis.
    Response: Although the lobster fishery is not managed by a quota 
system, the benefits of consistent fishery-dependent data in 
effectively managing the resource cannot be overstated. The lobster 
fishery is the most economically lucrative in the Northwest Atlantic, 
with ex-vessel revenues totaling nearly $349 million in 2007, 
sustaining numerous fishing communities. Yet, only 61 percent of 
Federal lobster harvesters and only 71 percent of Federal lobster 
dealers provide landings data to NMFS. The 2005 peer-reviewed lobster 
stock assessment indicated that improvements to the quality and 
quantity of fishery-dependent data, including dealer data, are needed 
to facilitate the assessment of the lobster stocks. In the absence of a 
mandatory Federal harvester reporting program NMFS has adopted a 
mandatory electronic dealer reporting

[[Page 37537]]

program for Federal dealers to complement the Commission's plan and the 
actions of the states in enhancing the quality and quantity of lobster 
fishery data to assist in the management of this important fishery.
     More and more, landings data are needed by NMFS to address not 
only lobster policy issues, but other relevant issues such as large 
whale take reduction planning, Endangered Species Act analyses, and 
economic analyses, for example. NMFS is consistently challenged with 
insufficient and questionable data and sees this as an opportunity to 
obtain a consistent data set, from its own dealers, to assist in its 
decision-making and policy analysis responsibilities for lobster 
management and other critical needs.
    Although data on lobster landings may not be needed on a weekly 
basis, weekly receipt of trip-level data from all Federal dealers is 
certainly more timely and hence, more readily available. Additionally, 
implementing a weekly reporting requirement for the affected Federal 
lobster dealers will mesh with the current requirements in place for 
all Federal seafood dealers, creating a common format across all 
Federal fisheries. The opportunity to obtain this important information 
in a consistent manner will improve its utility for internal as well as 
for cooperative management and policy needs.
    Comment 4: ME DMR responded in opposition to the dealer reporting 
measure, indicating that it would impact about 86 small dealers in 
Maine. ME DMR is collecting trip-level data from dealers on a monthly 
basis and believes that weekly electronic reporting requirements would 
be too burdensome on dealers who do not have access to the Internet or 
to a computer and are now able to provide this data on paper trip 
tickets to fulfill state requirements.
    Response: NMFS understands that Maine lobster dealers have recently 
begun reporting trip level transactions to ME DMR on a monthly basis. 
Although a Federal electronic dealer reporting requirement would only 
impact a minority of lobster dealers (estimated to be 29 percent of all 
Federal lobster dealers), a large portion of the 29 percent come from 
Maine (88 of the 148 non-reporting Federal lobster dealers are based in 
Maine, based on NMFS permit data). At the same time, 36 dealers in 
Maine are successfully reporting on an electronic basis. However, as 
the largest lobster harvesting state by far, Maine harvest data is 
critical to ensure the responsible management of the fishery and 
comprises a major component of the overall universe of Federal harvest 
data that currently is not readily available to NMFS in a consistent, 
reliable or easily-accessible fashion.
    It is evident, both anecdotally and from some of the comments 
received that some dealers, especially in more remote areas, may not 
use computers as part of their business operations. However, that 
number is unknown. Since no additional information is available 
regarding either the number of individuals without the required 
equipment or more specific details on the costs of acquiring the 
technology, NMFS stands behind its analysis in the EA regarding the 
impacts of electronic reporting on the affected set of Federal dealers. 
As such, NMFS estimates that the initial costs to dealers would be 
about $580 for an adequate computer and approximately $652 annually to 
support Internet access for those dealers that currently do not have a 
computer or Internet service. In consideration of ME DMR's concern, 
however, NMFS re-assessed the potential costs to dealers and found that 
they are likely to be less than initially estimated (see response to 
comment 6).
    Comment 5: ME DMR and one other commenter disputed that dealers get 
a 40 percent markup on lobsters they sell and, therefore, the NMFS 
estimates of the costs of purchasing the necessary equipment as a 
percentage of gross income, based on this percentage, are inaccurate.
    Response: It is possible that many affected dealers, especially 
smaller operations, do not convey a 40-percent markup on their product. 
ME DMR made these comments based on responses to an ``informal survey'' 
of Maine dealers but it is not known how many dealers ME DMR canvassed 
or the size of their respective operations. The NMFS analysis of 
impacts is based on business transaction information acquired from 
Federal dealer data which is the best information available for 
assessing the impacts of Federal dealers. NMFS understands that this 
data may not be reflective of the entire universe of Federal lobster 
dealers which vary in size and sales volume. Consequently, if all 
Federal dealers report to NMFS in a consistent fashion, then the 
assessment of future impacts on dealers may more accurately reflect the 
overall range of affected businesses.
     The potential impact that the cost of acquiring a computer and 
maintaining Internet access would have on affected Federal dealer 
business income is uncertain. However, potential impacts to lobster 
dealers with no other Federal permits could be assumed to be similar to 
Federal dealers who are currently subject to mandatory reporting whose 
business is solely or primarily comprised of lobster sales. Under this 
assumption, the estimated first-year cost of purchasing equipment and 
Internet access would represent 0.47 percent of gross net sales 
assuming a 40-percent markup (based on a NMFS economic analysis 
conducted on lobster fishery transactions) and median purchases of 
134,000 pounds (60,909 kg) with net gross sales valued at $245,000 
during 2007. These estimates are based on dealer reports for all 
Federal lobster permit holders who were subject to mandatory reporting 
during 2007. At these values, the annual cost of maintaining Internet 
access would be 0.27 percent of net gross sales. The expected costs 
would be lower for any dealer who already has Internet access and a 
computer meeting the minimum specifications. Further, the computer and 
Internet service, having been purchased, may provide additional 
benefits to the dealer's business in ways not associated with data 
reporting.
    Comment 6: ME DMR commented that NMFS failed to account for the 
time and cost burdens to dealers associated with completing the weekly 
electronic reports and underestimated the costs associated with 
purchasing a computer and Internet service.
    Response: NMFS analyzed the costs associated with the collection of 
information requirements for weekly electronic dealer reporting. This 
analysis was completed under the authority of the Paperwork Reduction 
Act (OMB Control Number 0648-0229). NMFS based the burden estimates on 
the data available from the current pool of Federal seafood dealers who 
are already required to submit weekly electronic reports. The analysis 
estimated the reporting burden for each weekly transaction to be about 
4 minutes to populate and submit the electronic data files. The 
reporting costs are based on a respondent wage of $18.88 per hour, with 
the overall annual burden for all 148 affected dealers estimated at 539 
hours, costing $10,171. NMFS realizes that the time needed to complete 
and upload the reports may be higher for some dealers who may not be 
familiar with the electronic programs. However, NMFS staff will work 
with all dealers to assist them in meeting their reporting 
requirements, consistent with past practices.
    Although 148 Federal lobster dealers will be affected by the 
electronic dealer reporting requirement, NMFS believes that only a 
small, albeit unknown, number will need to purchase both a computer and 
acquire Internet service to comply with the new reporting standards. 
Further, only one dealer

[[Page 37538]]

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