American Lobster Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 649

[Docket No. 940366-4066; I.D. 021494E]

RIN: 0648-AF39

American Lobster Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to implement the conservation

and management measures proposed in Amendment 5 to the Fishery

Management Plan for the American Lobster Fishery (FMP). Amendment 5 is

intended to eliminate or prevent overfishing of American lobsters

through adoption of a management program in the exclusive economic zone

(EEZ) with anticipated complementary management action in state waters

through state initiatives. This proposed rule would: Maintain the

current 3\1/4\-inch (8.26-cm) minimum carapace length, thus rescinding

the scheduled increases in the minimum size limit promulgated through

Amendment 2 to the FMP; establish a new data collection system through

a mandatory, uniform logbook; establish a 5-year limitation on issuance

of new Federal vessel permits; establish new permit requirements;

establish a framework process to develop a stock rebuilding program in

response to overfishing; and revise the definition of overfishing.

DATES: Comments on the proposed rule must be received on or before

April 18, 1994.

ADDRESSES: Comments on the proposed rule, Amendment 5, or its

supporting documents should be sent to Richard Roe, Director, Northeast

Region, National Marine Fisheries Service, 1 Blackburn Dr., Gloucester,

MA 01930. Mark the outside of the envelope ``Comments on American

Lobster Plan''.

Comments regarding the burden-hour estimates or any other aspect of

the collection-of-information requirements contained in this proposed

rule should be sent to the Director, Northeast Region, NMFS (address

listed above), and the Office of Management and Budget (OMB) (Attention

NOAA Desk Officer), Washington, DC 20503.

Copies of Amendment 5, its regulatory impact review (RIR), initial

regulatory flexibility analysis (IRFA), and the draft supplemental

environmental impact statement (DSEIS) are available from Douglas

Marshall, Executive Director, New England Fishery Management Council

(Council), Suntaug Office Park, 5 Broadway (U.S. Rte. 1), Saugus, MA

01906-1097. Copies of the Finance Handbook may be obtained from Mr.

Joseph Giza, Chief, Fiscal Policy and Quality Assurance Branch, NOAA

Financial Management Division, Caller Service No. 8025, 20020 Century

Boulevard, Germantown, Maryland 20874, telephone 301-443-8795.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,

508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

The FMP was implemented on September 7, 1983. The FMP established a

minimum carapace length for American lobster taken from the EEZ of 3\3/

16\ inches (8.1 cm), effective January 1, 1985. Amendment 2 increased

the minimum carapace length to 3\5/16\ inches (8.41 cm) in four \1/32\-

inch (0.79-cm) increments, effective January 1, 1988, 1989, 1991, and

1992, respectively. Two of the four scheduled increments were

implemented. In 1991, the minimum carapace length was to increase to

3\9/32\ inches (8.33 cm). Due to major disruptions in the lobster

market, the states of Maine, Massachusetts, and Rhode Island decided

not to conform the minimum carapace length in their waters to the

scheduled EEZ minimum length. If the Federal carapace length had

increased in 1991, these state actions would have created enforcement

and management problems due to the inconsistency between the minimum

lengths for lobsters taken from state waters and those taken from EEZ

waters. Also, the Mitchell Amendment to the Magnuson Fishery

Conservation and Management Act (Magnuson Act) (16 U.S.C. 1857)

prohibited the shipment, transport, sale or purchase, in interstate or

foreign commerce, of any whole live lobster, regardless of where taken,

that is smaller than the minimum length for lobsters taken from the

EEZ. That amendment had the effect of banning the interstate transport

or export of lobsters, harvested legally in state waters, that are

smaller than the Federal minimum length for EEZ lobsters.

Amendment 4, implemented on December 27, 1991 (57 FR 214),

addressed the above problems by maintaining the minimum carapace size

for American lobster at 3\1/4\ inches (8.26 cm) through December 26,

1993, when it would increase to 3\9/32\ inches (8.33 cm). The intent of

the amendment was that the Council would develop a comprehensive

amendment during the 2-year period to replace the minimum-length

increases, provide consistent management of the American lobster

resource throughout its range, and reduce the risk of overfishing.

Amendment 4 required that if, prior to December 26, 1993, the Council

transmitted a comprehensive amendment, then NMFS would change the date,

by regulatory amendment, upon which the 3\9/32\-inch (8.33-cm) minimum

carapace length would become effective (December 27, 1993) to the 146th

day after the date on which the amendment was transmitted. On December

23, 1993, the Council submitted Amendment 5. As a result of this

action, on December 28, 1993, a final rule was published in the Federal

Register (58 FR 68555) that delayed increasing the minimum carapace

length to 3\9/32\ inches (8.33 cm) until May 18, 1994.

Amendment 4 also proposed a definition of overfishing, with a

preliminary indication that overfishing may be occurring in the

offshore stock. The most recent stock assessment of American lobster

has confirmed that the overall resource is in an overfished condition.

Amendment 5 to the FMP was prepared by the Council in consultation

with the Mid-Atlantic Fishery Management Council and the Atlantic

States Marine Fisheries Commission (ASMFC), under the provisions of the

Magnuson Act. At the December 7-8, 1993, Council meeting, the Council

voted to approve Amendment 5 for submission to NMFS. A notice of

availability inviting comments on a draft supplemental environmental

impact statement (DSEIS) for Amendment 5 was published in the Federal

Register February 4, 1994 (59 FR 5428). The public comment period for

the DSEIS will end on March 20, 1994.

Proposed Management Measures

Amendment 5 proposes to maintain the minimum carapace length in the

EEZ at the current size of 3\1/4\ inches (8.26 cm) to remain consistent

with the minimum carapace size for all the major lobster-producing

states from Maine through New York. This amendment also proposes to

change the management strategy for lobster by imposing a limitation on

the issuance of new federal lobster permits and, in year 2 of the

amendment, establishing a stock rebuilding program in four management

areas in the EEZ. The four management areas are: Gulf of Maine Inshore;

Southern New England Inshore; Middle Atlantic Inshore; and Offshore. In

response to public comment, the Council has determined that a seaward

boundary line of the Southern New England Inshore area, which is

contiguous with part of the Offshore area, should not be proposed until

the Effort Management Teams (EMTs) for these areas jointly consider the

issue and make a recommendation to the Council. Long Island Sound,

under the jurisdiction of the coastal states and not part of the EEZ,

is not specifically part of the Southern New England Inshore area.

However, since Amendment 5 was developed as a joint effort by the

Council and ASMFC, Long Island Sound might be established under ASMFC

regulations as a separate management area.

The Council has proposed a division of the lobster fleet into three

vessel permit categories and the immediate establishment of a quota for

all vessels that qualify under the permit limitations and operate any

gear other than lobster pots.

In addition, the Council is proposing that the minimum dimensions

of the lobster trap escape vent width size change from 6 inches (152.4

mm) to 5\3/4\ inches (146.1 mm) (consistent with the state of Maine

regulations). The current size requirements for lobster trap escape

vents (1\7/8\ inches by 6 inches (47.6 mm by 152.4 mm) for rectangular

vents and 2\3/8\ inches (60.3 mm) for circular vents) were intended to

provide the maximum escapement of sublegal lobsters consistent with

100% retention of legal lobsters. Most escape vents snap into or are

wired into the trap over an opening cut in the meshes. Others are

hinged on the bottom edge and fastened with degradable fasteners at the

top edge and serve as a ghost panel if the trap is lost. Regardless of

the panel design, the 6-inch (152.4-mm) width requirement requires

removal of four wires horizontally and either one wire or two

vertically, depending on whether the panel is also to serve as the

ghost panel. Industry representatives have stated that the removal of

the fourth wire weakens the trap unnecessarily while not significantly

affecting escapement of sublegal size lobsters. The Council's Plan

Development Team examined this issue and concluded that reducing the

escape vent width would not change the escapement/retention levels of

traps based on the criteria established in Amendment 3. This measure

will not entail any financial impacts since existing panels will meet

the new requirement and may continue to be used until they would

normally be replaced.

The American lobster resource would be considered recruitment

overfished when, throughout its range, the fishing mortality rate (F)

results in an estimated egg production per recruit of 10 percent or

less of the egg production of a non-fished population (F10%). The

estimated level of fishing mortality in the Gulf of Maine area for the

period 1989 to 1991 was F=0.65, and has been significantly increasing

at a rate of 5.5 percent per year since 1983. F10% is estimated to

be 0.52, indicating that fishing mortality rates need to be reduced 20

percent or more in the Gulf of Maine area to prevent overfishing. For

the Georges Bank and Offshore areas, the estimated level of fishing

mortality for the period 1989 to 1991 was between F=0.17 and F=0.36 and

has been declining since 1985. F10% is estimated to be 0.44,

indicating that this segment of the resource may not be overfished, but

is probably fully exploited. In the South Cape Cod/Long Island areas,

the estimated fishing mortality rates have been very high, ranging from

F=1.12 to F=1.59, without any significant trend for the period 1986 to

1991. F10% for these areas is estimated to be 0.68, indicating

that overfishing is occurring and that F needs to be reduced

approximately 50 percent to prevent overfishing. Since overfishing is

occurring in both the Gulf of Maine area and South Cape Cod/Long Island

areas, while the Georges Bank and Offshore areas are fully exploited, F

for the aggregated resource exceeds the overfishing level and the stock

is currently in an overfished condition.

Because the lobster resource has been determined to be overfished,

Amendment 5 includes a 5-year rebuilding program for the Gulf of Maine

segment of the resource and a 10-year rebuilding program for the

Southern New England inshore resource by reducing the fishing mortality

rate by 5 percent per year for both areas starting in year 2 of the

plan.

To achieve these reductions, Amendment 5 includes a stock

rebuilding program within each of the four management areas. This

rebuilding program would be developed during year 1 and could include

any of the framework measures specified under Sec. 649.44(d). These

measures could be applied to all segments of the harvesting sector

within each management area.

To determine which of these measures would be implemented in each

of the management areas, Amendment 5 would establish an Effort

Management Team (EMT) for each of the management areas. The EMTs would

be comprised of a core group of representatives from NMFS, the states,

and the Council, which would participate on all of the EMTs, and a

group of area-specific industry representatives that would participate

only on the EMT for their area. Each EMT would establish a stock

rebuilding program for its area and make recommendations to the Council

(through the Council's Lobster Committee), no later than 6 months

following the implementation of Amendment 5. The Council would then

initiate development of a stock rebuilding program for each area within

1 year of implementation of Amendment 5. This delay will provide the

opportunity for fishermen within each area to reach a consensus as to

which options listed in Sec. 649.44(d) should apply in their respective

management area.

Also in the amendment are new permitting requirements for vessel

operators and dealers, and mandatory reporting requirements for dealers

and vessel owners. The need for mandatory reporting has become

increasingly clear to NMFS, the Council, and the industry over the last

couple of years. As a result, the Mid-Atlantic and New England Councils

are now including standardized reporting requirements in all recent

amendments to FMPs.

The Council has proposed three limited access permit categories for

vessels engaged in the commercial lobster fishery, by gear type. To be

issued a limited access permit vessels would qualify based on the

following: Permits would be issued to vessels that held a valid Federal

American lobster permit and landed lobsters prior to March 25, 1991,

(date of publication of the control date) or to vessels or individuals

that held a Federally endorsed state permit and landed lobsters prior

to March 25, 1991. The Council has proposed that the moratorium be

limited to 5 years. The Council would conduct a formal review of the

effects of the moratorium during year 3 to determine whether this

action is consistent with the stock rebuilding program.

To accommodate the recreational fleet, the Council is proposing

that all party and charter boats engaged in the recreational fishery

for lobster in the EEZ, and divers on vessels for hire, be exempt from

the need to obtain a limited access permit provided that no lobsters

are sold and that no more than six lobsters per person on board the

vessel are landed or possessed.

Amendment 2 to the FMP contained a provision that allowed states

with lobster permits to enter into an agreement with NMFS, permitting

them to endorse an individual's state lobster permit for lobster

fishing in the EEZ. Vessel owners who obtained this endorsement from

the state did not have to get a Federal lobster permit to fish in the

EEZ. The Council, in Amendment 5, proposed a limited access permit

criterion that would allow any holder of a state license endorsed for

fishing in the EEZ that was obtained after the control date and has

been held continuously since 1991, to qualify for the limited access

permit, if the license holder can document lobster landings of at least

1,000 lbs (453.6 kg) in 1991 or 1992, and if the state issuing the

Federal endorsement has failed to notify applicants of the control

date. The Council reasoned that notification of the control date may

not have been consistent from state to state and that it was necessary

to accommodate vessel owners that may not have been notified by the

state. This measure was disapproved by NMFS on February 14, 1994, based

on national standard 4 of the Magnuson Act, which requires that

management measures not discriminate against residents of different

states. This proposal would allow a resident of one state, who entered

the fishery after the control date, to obtain a limited access permit

while the resident of another state in similar circumstances would be

excluded. The control date was published in the Federal Register and

also received wide publication in the commercial fishing press. Any

additional notification was supplementary to this notification.

First-Year Restrictions

The stock rebuilding measures to be proposed by the regional EMTs

would not be implemented until year 2 of this amendment. There is the

potential for significant increases in fishing mortality during the

first year through displaced effort from the multispecies and scallop

fisheries. Therefore, the Council has proposed limiting in the first

year of plan implementation the total catch of all vessels that qualify

under the moratorium and operate any gear other than lobster pots to

4.5 million lbs (2.04 million kg), which corresponds to 8 percent of

the total landings of lobsters in 1992. If the total catch by such

vessels reaches 6 percent of the 1992 catch level of 3.35 million lbs

(1.52 million kg) during the course of the year, then all vessels would

be limited to 100 lobsters, by count, per day or per trip, whichever is

longer, for the remainder of the year. The restriction would not apply

in year 2 because the framework process would be effective then.

Stock Rebuilding Program

The Council would initiate development of the Stock Rebuilding

Program by soliciting recommendations from the EMTs. With Council

approval of the recommended management measures, public hearings would

be held to receive comments on the proposed Stock Rebuilding Program.

After consultation with the Council and ASMFC, and upon their

recommendation, the Regional Director would promulgate appropriate

regulations to implement the Stock Rebuilding Program within 1 year

after the date of implementation of Amendment 5. The delay in the

starting date for the Stock Rebuilding Program of up to 1 year would

provide the opportunity for fishermen within each Management Area to

reach a consensus as to which of the options listed above should apply

in their respective Management Area.

The Council and ASMFC, through consultation with the ASMFC Lobster

Scientific Committee during the stock assessment process and with the

EMT, would continue to monitor the effectiveness of the Stock

Rebuilding Program and to ensure, to the extent possible, that regional

measures (within a Management Area) do not shift impacts from one

Management Area to another. The plan monitoring effort would also make

annual determinations whether the program is making adequate progress

in meeting the goal of eliminating any overfishing. If it is determined

that the initial specification of the Stock Rebuilding Program is

inadequate to meet the goal of the program, then the Council, in

consultation with ASMFC, would consider additional measures according

to the procedure outlined above. After Council action, with public

hearings, the Regional Director, in consultation with the Council and

ASMFC, would promulgate appropriate regulations as may be necessary to

modify the Stock Rebuilding Program.

Changes From Existing Regulations

For clarity and convenience of the public, 50 CFR part 649 would be

revised in its entirety as published in this proposed rule. Sections

649.1 and 649.3 would be revised only slightly from existing

regulations. More extensive revisions would be made to Secs. 649.2,

649.4, 649.8 (currently Sec. 649.6), 649.9 (currently Sec. 649.7),

649.20, and 649.21. Sections 649.5, 649.6, 649.7, 649.22, 649.23,

649.24, 649.25, 649.41, 649.42, 649.43, and 649.44 of this proposed

rule are either entirely new or incorporate portions of existing

regulations.

Classification

Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires

the Secretary to publish regulations proposed by the Council within 15

days of the receipt of a proposed amendment and proposed regulations.

At this time, the Secretary has not determined that the amendment these

rules would implement is consistent with the national standards, other

provisions of the Magnuson Act, and other applicable law. The

Secretary, in making that determination, will take into account the

information, views, and comments received during the comment period.

The Council prepared a DSEIS for Amendment 5 describing the

possible impacts on the environment as a result of this rule. A copy of

the DSEIS may be obtained from the Council (see ADDRESSES).

The Council prepared an initial regulatory flexibility analysis

(IRFA) that concludes that this proposed rule, if adopted, will not

have a significant impact on a substantial number of small entities.

The proposed measures would not result in a reduction of annual gross

revenues of more than 5 percent. Annual compliance costs are not

expected to increase total costs by more than 5 percent and are not

expected to be substantially higher for small, as compared to large,

business entities. They will not force more than 2 percent of small

business entities to cease business operations. A copy of the IRFA may

be obtained from the Council (see ADDRESSES).

This proposed rule contains three new collection-of-information

requirements and three revisions to existing requirements subject to

the Paperwork Reduction Act. A request to collect this information has

been submitted to the Office of Management and Budget (OMB) for

approval. The public's reporting burdens for these collection-of-

information requirements are indicated in the parentheses in the

following statements and include the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection-of-information

requirements.

The new reporting requirements are: 1. Vessel logbooks, OMB

Approval No. 0648-0212, (5 min./response);

2. Dealer permits, OMB Approval No. 0648-0202, (5 min./response);

3. Operator permits, OMB Approval No. 0648-0202, (1 hour/response).

Revisions to the existing requirements are: 1. Dealer purchase

reports, OMB Approval No. 0648-0229, (2 min./response);

2. Vessel permits, appeal of denied permit, OMB Approval No. 0648-

0202, (3 hours/response);

3. Vessel permits, appeal of permit category, OMB Approval No.

0648-2020, (5 hours/response).

Send comments regarding these burden estimates or any other aspect

of these proposed collection-of-information requirements, including

suggestions for reducing the burdens, to Richard Roe, NMFS, and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget (see ADDRESSES).

The effects of all fisheries on threatened and endangered species

were considered in an Endangered Species Act (ESA) consultation

conducted for the implementation of the Marine Mammal Exemption Program

in 1988. The resulting Biological Opinion (NMFS, 1988) found that

fisheries may affect, but are not likely to jeopardize, the continued

existence of any population of listed species. A formal consultation on

the lobster fishery and the management measures implemented by this

proposed rule is being conducted according to section 7 of the ESA. The

Biological Opinion concluding the consultation will be completed prior

to submission of the Final Supplemental Environmental Impact Statement

and final rule. The preliminary findings suggest that the lobster

fishery may affect endangered and threatened species, but is not likely

to jeopardize the continued existence of any listed populations.

Incidental takes of endangered and threatened whales and sea turtles

have been documented and are listed in the DSEIS. Most of the

documented takes have not resulted in mortalities. Management actions

implemented through the proposed rule, including mandatory reporting

through a uniform logbook, will improve monitoring capabilities and

effort estimates.

This rule is not subject to review under Executive Order 12866.

List of Subjects in 50 CFR Part 649

Fisheries, Reporting and recordkeeping requirements.

Dated: March 3, 1994.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 649 is

proposed to be revised to read as follows:

PART 649--AMERICAN LOBSTER FISHERY

Subpart A--General Provisions

Sec.

649.1 Purpose and scope.

649.2 Definitions.

649.3 Relation to other laws.

649.4 Vessel permits.

649.5 Operator permits.

649.6 Dealer permits.

649.7 Recordkeeping and reporting.

649.8 Vessel identification.

649.9 Prohibitions.

649.10 Facilitation of enforcement.

649.11 Penalties.

Subpart B--Management Measures

649.20 Minimum size and landing requirements.

649.21 Gear identification and marking, escape vent, and ghost

panel requirements.

649.22 Possession restrictions and target quota.

649.23 Transfer at sea.

649.24 Restrictions on trawl gear while in the trap fishery.

649.25 Experimental fishing exemption.

Subpart C--Stock Rebuilding Program and Framework Adjustments to

Management Measures

649.41 Purpose and scope.

649.42 Stock rebuilding program requirements and time frame.

649.43 First-year framework specifications.

649.44 Framework specifications after year 1.

Figures to Part 649

Figure 1--Standard Tetrahedral Corner Radar Reflector.

Figure 2--American Lobster Management Areas Established for the

Purposes of Regional Lobster Management.

Authority: 16 U.S.C. 1801 et seq.

Subpart A--General Provisions

Sec. 649.1 Purpose and scope.

The purpose of this part is to implement the Fishery Management

Plan for the American Lobster Fishery (FMP), which was prepared and

adopted by the New England Fishery Management Council in consultation

with the Mid-Atlantic Fishery Management Council and the Atlantic

States Marine Fisheries Commission (ASMFC), and approved by the

Assistant Administrator for Fisheries, NOAA. Red crab fishing gear,

which is fished deeper than 200 fathoms (365.8 m), is gear not capable

of taking lobsters, and is not subject to the provisions of this part.

Sec. 649.2 Definitions.

In addition to the definitions in the Magnuson Act and in

Sec. 620.2 of this chapter, the terms used in this part have the

following meanings:

American lobster or lobster means the species Homarus americanus.

Berried female means a female American lobster bearing eggs

attached to the abdominal appendages.

Carapace length is the straight line measurement from the rear of

the eye socket parallel to the center line of the carapace to the

posterior edge of the carapace. The carapace is the unsegmented body

shell of the American lobster.

Council means the New England Fishery Management Council.

Dealer means any person who receives American lobsters for a

commercial purpose from the owner or operator of a vessel, other than

exclusively for transport on land.

Dive vessel means any vessel carrying divers engaged in

recreational fishing for a per capita fee or a charter fee.

Effort Monitoring Team (EMT) means a group of technical experts

made up of representatives from the Council, NMFS, the appropriate

states, and an appointed group of American lobster industry

representatives, per management area, to each EMT.

Escape vent means an opening in a lobster trap designed to allow

lobster smaller than the legal minimum size to escape from the trap.

Fishery Management Plan (FMP) means the Fishery Management Plan for

American Lobsters, as amended.

Ghost panel means a panel, or other mechanism, designed to allow

for the escapement of lobster 12 months after a trap has been abandoned

or lost.

Gross registered tonnage means the gross registered tonnage

specified on the U.S. Coast Guard documentation for a vessel.

Land means to enter port with fish on board, to begin offloading

fish, or to offload fish.

Lobster Plan Development Team (PDT) means a team of technical

experts appointed by the Council.

Net tonnage means the net tonnage specified on the U.S. Coast Guard

documentation for a vessel.

Offload means to begin to remove, to remove, to pass over the rail,

or otherwise take away fish from any vessel.

Operator means the master or captain of the vessel, or other

individual on board the vessel, who is in charge of that vessel's

operations.

Party/charter boat means any vessel carrying recreational fishing

persons or parties for a per capita fee or for a charter fee.

Postmark means independently verifiable evidence of date of

mailing, such as U.S. Postal Service postmark, United Parcel Service

(U.P.S.) or other private carrier postmark, certified mail receipt,

overnight mail receipt, or receipt received upon hand delivery to an

authorized representative of NMFS.

Recreational fishing means fishing that is not intended to, nor

does it result in the barter, trade, or sale of fish.

Recreational fishing vessel means any vessel from which no fishing

other than recreational fishing is conducted. Charter and party boats

and dive boats are not considered recreational fishing vessels.

Regional Director means the Director, Northeast Region, NMFS, 1

Blackburn Drive, Gloucester, MA 01930-2298, or a designee.

Reporting month means a period of time beginning at 0001 hours

local time on the first day of each calendar month and ending at 2400

hours local time on the last day of each calendar month.

Reporting week means a period of time beginning at 0001 hours local

time on Sunday; and ending at 2400 hours local time the following

Saturday.

Re-rig or re-rigged means physical alteration of the vessel or its

gear in order to transform the vessel into one capable of fishing

commercially for American lobsters.

Scrubbing is the forcible removal of eggs from a berried female

American lobster.

Sixth tail segment is that tail segment closest to the fan of an

American lobster's tail with the segment length measured along the

dorsal center line with the tail flexed.

Transfer means to begin to remove, to remove, to pass over the

rail, or otherwise take away fish from any vessel and move them to

another vessel.

Trawl means gear consisting of a net that is towed and is capable

of catching American lobsters, including Danish and Scottish seine

gear.

Trip is the period of time during which a fishing vessel is absent

from port, beginning when the vessel leaves port and ending when the

vessel returns to port.

Under agreement for construction means that the keel has been laid

and that there is a written agreement to construct a fishing vessel.

Vessel registered length means the registered length specified on

the U.S. Coast Guard documentation for a vessel or on the state

registration for a vessel not required to be documented under chapter

123 of title 46 U.S.C., if the state-registered length is verified by

an authorized officer.

V-notched American lobster means any American lobster bearing a V-

shaped notch in the right (underside of the lobster down and tail

toward the viewer) flipper next to the middle flipper or any female

American lobster that is mutilated in a manner that could hide or

obliterate such a mark.

V-shaped notch means a straight-sided triangular cut, without setal

hairs, as least 1/4 inch (0.64 cm) in depth and tapering to a point.

Whole American lobster means a lobster with an intact and

measurable body (tail and carapace). A whole American lobster may have

one or both claws missing.

Sec. 649.3 Relation to other laws.

(a) The relation of this part to other laws is set forth in

Sec. 620.3 of this chapter.

(b) Nothing in these regulations shall supersede more restrictive

state management measures for American lobsters.

Sec. 649.4 Vessel permits.

(a) Limited access American lobster permits. Any vessel of the

United States that fishes for, possesses, or lands American lobster, in

or harvested from the EEZ; except party, charter and dive boats that

possess six or fewer American lobsters per person aboard the vessel,

and recreational vessels and vessels that fish exclusively in state

waters for American lobsters; must have been issued and carry on board

a valid Federal limited access American lobster permit.

(1) Eligibility in 1994. (i) To be eligible to obtain a limited

access American lobster permit for 1994, a vessel must meet one of the

following criteria: (A) The vessel or vessel owner had been issued a

Federal American lobster permit, or a Federally endorsed state American

lobster permit and landed American lobsters prior to March 25, 1991; or

(B) The vessel was under written agreement for construction or for

re-rigging for directed American lobster fishing as of March 25, 1991,

and the vessel was issued a Federal American lobster permit and landed

American lobster prior to March 25, 1991; or

(C) The vessel is replacing a vessel that meets any of the criteria

set forth in paragraph (a)(1)(i)(A) or (a)(1)(i)(B) of this section.

(ii) No more than one vessel may qualify, at any one time, for a

limited access American lobster permit based on that or another

vessel's fishing and permit history. If more than one vessel owner

claims eligibility for a limited access American lobster permit, based

on one vessel's fishing and permit history, the Regional Director shall

determine who is entitled to qualify for the limited access American

lobster permit.

(iii) A limited access American lobster permit for 1994 will not be

issued unless an application for such permit is received by the

Regional Director on or before December 31, 1994.

(2) Eligibility in 1995 and thereafter. To be eligible to renew or

apply for a limited access American lobster permit after 1994, a vessel

must have been issued a limited access American lobster permit for the

preceding year, or the vessel must be replacing a vessel that had been

issued a limited access American lobster permit for the preceding year.

If more than one vessel owner claims eligibility to apply for a limited

access American lobster permit based on one vessel's fishing and permit

history after 1994, the Regional Director shall determine who is

entitled to qualify for the limited access American lobster permit.

(3) Change in ownership. The fishing and permit history of a vessel

is presumed to transfer with the vessel whenever it is bought, sold, or

otherwise transferred, unless there is a written agreement, signed by

the transferor/seller and transferee/buyer, or other credible written

evidence, verifying that the transferor/seller is retaining the vessel

fishing and permit history for purposes of replacing the vessel.

(4) Notification of eligibility for a limited access permit.

(i) NMFS will attempt to notify all owners of vessels for which

NMFS has credible evidence that they meet the criteria in paragraph

(a)(1) of this section.

(ii) If a vessel owner has not been notified that the vessel is

eligible to be issued a limited access American lobster permit, and the

vessel owner believes that there is credible evidence that the vessel

does qualify under the pertinent criteria, the vessel owner may apply

for a limited access American lobster permit by submitting the

information described in paragraphs (a)(1) through (3) of this section.

In the event the application is denied, the applicant may appeal as

specified in paragraph (a)(6) of this section. If, through either of

these procedures, the Regional Director determines that the vessel

meets the eligibility criteria, a limited access American lobster

permit will be issued to the vessel.

(5) Permit categories. Each vessel issued a limited access American

lobster permit under the criteria specified in paragraph (a) of this

section shall be assigned to and must fish under one or more of the

three permit categories listed in paragraphs (a)(5) (i) through (iii)

of this section, whenever the vessel fishes for, possess, or lands

American lobster in or from the EEZ, based on the eligibility and

operating criteria specified below. Limited access American lobster

permits will indicate which category or categories the vessel may fish

under. A vessel assigned to Category A or B may also qualify for and

fish under Category C, if it meets the eligibility and operating

criteria specified.

(i) Category A vessel permit. A vessel that cannot document that it

landed at least 300 lbs (136.1 kg) of American lobster on at least one

trip prior to May 25, 1991, must have on board a valid Category A

permit at any time it possesses or lands American lobster harvested

with fishing gear other than lobster traps;

(ii) Category B vessel permit. A vessel that can document that it

landed at least 300 lbs (136.1 kg) of American lobster on at least one

trip prior to May 25, 1991, must have on board a valid Category B

permit at any time it possesses or lands American lobster harvested

with fishing gear other than lobster traps;

(iii) Category C vessel permit. A vessel must have on board a valid

Category C permit at any time it possesses or lands American lobster

harvested exclusively with lobster traps. A vessel fishing under this

category may have fishing gear other than lobster traps on board the

vessel, if such gear is disabled and not available for immediate use

for the entire fishing trip as specified in Sec. 649.24.

(6) Appeal of denial of limited access American lobster permit or

of permit category assignment. (i) Any applicant denied a limited

access American lobster permit or any applicant who believes he/she is

assigned to an incorrect American lobster permit category, may appeal

the denial to the Regional Director within 30 days of the notice of

denial. Any such appeal must be based on one or more of the following

grounds, must be in writing, and must state the grounds for the appeal:

(A) The information used by the Regional Director was based on mistaken

or incorrect data;

(B) The applicant was prevented by circumstances beyond his/her

control from meeting relevant criteria; or

(C) The applicant has new or additional information.

(ii) The Regional Director will appoint a designee who will make

the initial decision on the appeal.

(iii) The appellant may request a review of the initial decision by

the Regional Director by so requesting in writing within 30 days of the

notice of initial decision. If the appellant does not request a review

of the initial decision within 30 days, the initial decision shall

become the final administrative action of the Department of Commerce.

(iv) Recommendations to the Regional Director by a hearing officer.

A hearing officer shall be appointed by the Regional Director to review

the initial decision. The hearing officer shall make findings and a

recommendation to the Regional Director, which shall be advisory only.

(v) Upon receiving the findings and a recommendation, the Regional

Director will issue a final decision on the appeal. The Regional

Director's decision is the final administrative action of the

Department of Commerce.

(b) Condition. Vessel owners who apply for a permit under this

section must agree as a condition of the permit that the vessel and

vessel's fishing, catch, and pertinent gear (without regard to whether

such fishing occurs in the EEZ or landward of the EEZ, and without

regard to where such fish or gear are possessed, taken, or landed), are

subject to all requirements of this part. The vessel and all such

fishing, catch, and gear shall remain subject to all applicable State

or local requirements. If a requirement of this part and a management

measure required by State or local law differ, any vessel owner

permitted to fish in the EEZ must comply with the more restrictive

requirement.

(c) Vessel permit application. Applicants for a permit under this

section must submit a completed application on an appropriate form

obtained from the Regional Director. The application must be signed by

the owner of the vessel, or the owner's authorized representative, and

be submitted to the Regional Director at least 30 days before the date

on which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section. Applicants for limited access

American lobster permits who have not been notified of eligibility by

the Regional Director shall provide information with the application

sufficient for the Regional Director to determine whether the vessel

meets the eligibility requirements specified under paragraph (a)(1) of

this section. Acceptable forms of proof include, but are not limited

to, state weigh-out records, packout forms, and settlement sheets.

(d) Information requirements. In addition to applicable information

required to be provided by paragraph (c) of this section, an

application for a limited access American lobster permit must contain

at least the following information, and any other information required

by the Regional Director: Vessel name; owner name, mailing address, and

telephone number; U.S. Coast Guard documentation number and a copy of

vessel's U.S. Coast Guard documentation or, if undocumented, state

registration number and a copy of the state registration; home port and

principal port of landing; length; gross tonnage; net tonnage; engine

horsepower; year the vessel was built; type of construction; type of

propulsion; approximate fish-hold capacity; type of fishing gear used

by the vessel; permit category; if the owner is a corporation, a copy

of the Certificate of Incorporation; and the names and addresses of all

shareholders owning 25 percent or more of the corporation's shares; if

the owner is a partnership, a copy of the Partnership Agreement and the

names and addresses of all partners; if there is more than one owner,

names of all owners having more than a 25 percent interest; and name

and signature of the owner or the owner's authorized representative.

(e) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee shall be calculated in accordance with the

procedures of the NOAA Finance Handbook for determining administrative

costs of each special product or service. The fee may not exceed such

costs and is specified with each application form. The appropriate fee

must accompany each application; if it does not, the application will

be considered incomplete for purposes of paragraph (f)(1) of this

section.

(f) Issuance. (1) Except as provided in subpart D of 15 CFR part

904 and under paragraph (a)(6) of this section, the Regional Director

shall issue a Federal American lobster vessel permit within 30 days of

receipt of the application unless: (i) The applicant has failed to

submit a completed application. An application is complete when all

requested forms, information, documentation, and fees, if applicable,

have been received and the applicant has submitted all applicable

reports specified at Sec. 649.7; or

(ii) The application was not received by the Regional Director by

the deadlines set forth in paragraph (a)(1)(iii) of this section; or

(iii) The applicant and applicant's vessel failed to meet all

eligibility requirements described in paragraphs (a)(1) and (2) of this

section; or

(iv) The applicant has failed to meet any other application

requirements stated in this part.

(2) Upon receipt of an incomplete or improperly executed

application, the Regional Director shall notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(g) Expiration. A Federal American lobster permit must be renewed

annually, and unless renewed will expire upon the renewal date

specified in the permit.

(h) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or until it otherwise expires, or

ownership changes, or the applicant has failed to report any change in

the information on the permit application to the Regional Director as

specified in paragraph (k) of this section.

(i) Replacement. Replacement permits, for an otherwise valid

permit, may be issued by the Regional Director when requested in

writing by the owner or authorized representative, stating the need for

replacement, the name of the vessel, and the Federal Fisheries Permit

number assigned. An application for a replacement permit will not be

considered a new application. An appropriate fee may be charged for

issuance of the replacement permit.

(j) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the vessel and owner to whom

it is issued.

(k) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written notice of the change must be submitted to the

Regional Director. If the written notice of the change in information

is not received by the Regional Director within 15 days, the permit is

void.

(l) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(m) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(n) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

(o) Limited access American lobster permit renewal. To renew or

apply for a limited access American lobster permit in 1995 and

thereafter, a completed application must be received by the Regional

Director by December 31 of the year before the permit is needed. For

example, to receive a limited access American lobster permit for 1996,

vessel owners must apply by December 31, 1995. Failure to renew a

limited access American lobster permit in any year bars the renewal of

the permit in subsequent years.

(p) Abandonment or voluntary relinquishment of limited access

American lobster permits. If a vessel's limited access American lobster

permit is voluntarily relinquished to the Regional Director, or

abandoned through failure to renew or otherwise, no limited access

American lobster permit may be re-issued or renewed based on that

vessel's history or to any vessel relying on that vessel's history.

Sec. 649.5 Operator permits.

(a) General. Any operator of a vessel issued a Federal limited

access American lobster permit under Sec. 649.4, or any operator of a

vessel fishing for, in possession of, or landing American lobsters in

or from the EEZ; except party, charter, and dive boats that possess on

board six or fewer American lobsters per person aboard the vessel,

recreational vessels, and vessels that fish exclusively in state waters

for American lobsters; must carry on board a valid operator's permit

issued under this part.

(b) Operator application. Applicants for a permit under this

section must submit a completed permit application on an appropriate

form obtained from the Regional Director. The application must be

signed by the applicant and submitted to the Regional Director at least

30 days prior to the date on which the applicant desires to have the

permit made effective. The Regional Director will notify the applicant

of any deficiency in the application, pursuant to this section.

(c) Condition. Vessel operators who apply for an operator's permit

under this section must agree as a condition of this permit that the

operator and vessel's fishing, catch, crew size, and pertinent gear

(without regard to whether such fishing occurs in the EEZ or landward

of the EEZ, and without regard to where such fish or gear are

possessed, taken, or landed), are subject to all requirements of this

part while fishing in the EEZ or on board a vessel permitted under

Sec. 649.4. The vessel and all such fishing, catch, and gear will

remain subject to all applicable state or local requirements. Further,

such operators must agree as a condition of this permit that if the

permit is suspended or revoked pursuant to 15 CFR part 904, the

operator cannot be on board any fishing vessel issued a Federal

Fisheries Permit or any vessel subject to Federal fishing regulations

while the vessel is at sea or engaged in offloading. If a requirement

of this part and a management measure required by state or local law

differ, any operator issued a permit under this part must comply with

the more restrictive requirement.

(d) Information requirements. An applicant must provide at least

all the following information and any other information required by the

Regional Director: Name, mailing address, and telephone number; date of

birth; hair color; eye color; height; weight; social security number

(optional) and signature of the applicant. The applicant must also

provide two color passport- size photographs.

(e) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Financial Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified with each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (f) of this section.

(f) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director shall issue an operator's permit within 30 days

of receipt of a completed application if the criteria specified herein

are met. Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(g) Expiration. A Federal operator permit must be renewed annually,

and unless renewed will expire upon the renewal date specified in the

permit.

(h) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or otherwise expires, or the applicant

has failed to report a change in the information on the permit

application to the Regional Director as specified in paragraph (k) of

this section.

(i) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal operator

permit number assigned. An applicant for a replacement permit must also

provide two color passport size photos of the applicant. An application

for a replacement permit will not be considered a new application. An

appropriate fee may be charged.

(j) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person to whom it is

issued.

(k) Change in application information. Notice of a change in the

permit holder's name, address, or telephone number must be submitted in

writing to, and received by, the Regional Director within 15 days of

the change in information. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(l) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(m) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(n) Sanctions. Vessel operators with suspended or revoked permits

may not be on board a Federally permitted fishing vessel in any

capacity while the vessel is at sea or engaged in offloading.

Procedures governing enforcement related permit sanctions and denials

are found at subpart D of 15 CFR part 904.

(o) Vessel owner responsibility. Vessel owners are responsible for

ensuring that their vessels are operated by an individual with a valid

operator's permit issued under this section.

Sec. 649.6 Dealer permits.

(a) All dealers must have been issued and have in their possession

a valid permit issued under this part.

(b) Dealer application. Applicants for a permit under this section

must submit a completed application on an appropriate form provided by

the Regional Director. The application must be signed by the applicant

and submitted to the Regional Director at least 30 days before the date

upon which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section.

(c) Information requirements. Applications must contain at least

the following information and any other information required by the

Regional Director: Company name, place(s) of business, mailing

address(es) and telephone number(s); owner's name; dealer permit number

(if a renewal); and name and signature of the person responsible for

the truth and accuracy of the report. If the dealer is a corporation, a

copy of the certificate of incorporation must be included with the

application. If a partnership, a copy of the Partnership Agreement and

the names and addresses of all partners must be included with the

application.

(d) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Finance Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified with each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (e) of this section.

(e) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director will issue a permit at any time during the

fishing year to an applicant unless the applicant has failed to submit

a completed application. An application is complete when all requested

forms, information, and documentation have been received and the

applicant has submitted all applicable reports specified in

Sec. 649.7(a). Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(f) Expiration. A Federal dealer permit must be renewed annually,

and unless renewed will expire upon the renewal date specified in the

permit.

(g) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or otherwise expires, or ownership

changes, or the applicant has failed to report any change in the

information on the permit application to the Regional Director as

required by paragraph (j) of this section.

(h) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal dealer

permit number assigned. An application for a replacement permit will

not be considered a new application. An appropriate fee may be charged.

(i) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person, or other business

entity, to which it is issued.

(j) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written report of the change must be submitted to, and

received by, the Regional Director. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(k) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(l) Display. Any permit, or a valid duplicate thereof, issued under

this part must be maintained in legible condition and displayed for

inspection upon request by any authorized officer.

(m) Federal versus state requirements. If a requirement of this

part differs from a fisheries management measure required by state law,

any dealer issued a Federal dealer permit must comply with the more

restrictive requirement.

(n) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

Sec. 649.7 Recordkeeping and reporting.

(a) Dealers--(1) Weekly report. Dealers must send a report of

lobster purchases by mail to the Regional Director, or official

designee, on a weekly basis, on forms supplied by or approved by the

Regional Director. If authorized in writing by the Regional Director,

dealers may submit reports electronically or through other media. The

following information, and any other information required by the

Regional Director, must be provided: Name and mailing address of

dealer; dealer number; name and permit number of the vessels from which

lobsters are landed or received; dates of purchases; pounds; price; and

port landed. If no lobsters are purchased during the week, a report so

stating must be submitted.

(2) Inspection. Upon request by an authorized officer, or by an

employee of NMFS designated by the Regional Director to make such

inspections, the dealer must make immediately available for inspection

copies of the required reports that have been submitted, or should have

been submitted, and the records upon which the reports were based.

(3) Record retention. Copies of reports, and records upon which the

reports were based, must be retained and available for review for 1

year after the date of the last entry on the report. The dealer shall

retain such reports and records at its principal place of business.

(4) Submitting reports. Reports must be received or postmarked, if

mailed, within 3 days after the end of each reporting week. Each dealer

will be sent forms and instructions, including the address to which to

submit reports, shortly after receipt of a dealer permit. If no

lobsters are purchased during a week, a report so stating must be

submitted.

(b) Vessel owners--(1) Fishing log reports. The owner of any vessel

holding a Federal American lobster permit under Sec. 649.4 shall

maintain, on board the vessel, and submit an accurate daily fishing log

report for all fishing trips regardless of species fished for or taken,

on forms supplied by or approved by the Regional Director. At least the

following information, and any other information required by the

Regional Director, must be provided: Vessel name; U.S. Coast Guard

(USCG) documentation number (or state registration number if

undocumented); permit number; date/time sailed; date/time landed; trip

type; number of crew; gear fished; quantity and size of gear; mesh/ring

size; chart area fished; average depth; latitude/longitude (or loran

station and bearings); total hauls per area fished; average tow time

duration; pounds, by species of all species landed and discarded;

dealer permit number; dealer name; date sold; port and state landed;

and vessel operator's name, signature, and operator permit number.

(2) When to fill in the log. Such log reports must be filled in,

except for information required but not yet ascertainable, before

offloading has begun. At the end of a fishing trip all information in

paragraph (b)(1) of this section must be filled in for each fishing

trip before starting the next fishing trip.

(3) Inspection. Owners and operators shall, immediately upon

request, make the fishing log reports currently in use or to be

submitted available for inspection by an authorized officer, or an

employee of the NMFS designated by the Regional Director to make such

inspections, at any time during or after a trip.

(4) Record retention. Copies of fishing log reports must be

retained and available for review for 1 year after the date of the last

entry on the report.

(5) Submitting reports. Fishing log reports must be received or

postmarked, if mailed, within 15 days after the end of each reporting

month. Each owner will be sent forms and instructions, including the

address to which to submit reports, shortly after receipt of a Federal

Fisheries Permit. If no fishing trip is made during a month, a report

so stating must be submitted.

Sec. 649.8 Vessel identification.

(a) Vessel name. Each fishing vessel subject to this part and that

is over 25 ft (7.6 m) in length must display its name on the port and

starboard sides of its bow and, if possible, on its stern.

(b) Official number. Each fishing vessel subject to this part that

is over 25 ft (7.6 m) in length must display its official number on the

port and starboard sides of its deckhouse or hull, and on an

appropriate weather deck, so as to be visible from above by enforcement

vessels and aircraft. The official number is the U.S. Coast Guard

documentation number or the vessel's state registration number for

vessels not required to be documented under chapter 123 of title 46

U.S.C.

(c) Numerals. The official number must be permanently affixed in

contrasting block Arabic numerals at least 18 inches (45.7 cm) in

height for vessels over 65 ft (19.8 m), and at least 10 inches (25.4

cm) in height for all other vessels over 25 ft (7.6 m) in length.

(d) Duties of owner and operator. The owner and operator of each

vessel subject to this part shall: (1) Keep the vessel name and

official number clearly legible and in good repair; and

(2) Ensure that no part of the vessel, its rigging, its fishing

gear, or any other object obstructs the view of the official number

from an enforcement vessel or aircraft.

Sec. 649.9 Prohibitions.

(a) In addition to the general prohibitions specified in Sec. 620.7

of this chapter, it is unlawful for any person owning or operating a

vessel issued a limited access American lobster permit under Sec. 649.4

to do any of the following: (1) Retain on board, land, or possess at or

after landing, American lobsters that fails to meet the carapace length

standard specified in Sec. 649.20(b). All American lobsters will be

subject to inspection and enforcement, up to and including the time

when a dealer receives or possesses American lobsters for a commercial

purpose.

(2) Retain on board, land or possess any American lobster or parts

thereof in violation of the mutilation standards specified in

Sec. 649.20(c).

(3) Retain on board, possess, or land any berried female American

lobster specified in Sec. 649.20(d).

(4) Remove eggs from any berried female American lobster, or to

possess or land any such lobster from which eggs have been removed.

(5) Retain on board, land or possess any V-notched female American

lobsters throughout the range of the stock.

(6) Possess, deploy, haul, harvest lobster from, or carry aboard a

vessel any gear not identified, marked, vented, and panelled in

accordance with the requirements specified in Sec. 649.21.

(7) Fail to comply in an accurate and timely fashion with the log

report, reporting, record retention, inspection, and other requirements

of Sec. 649.7(b).

(8) Fish for, possess, or land American lobsters unless the

operator of the vessel has been issued an operator's permit under

Sec. 649.5, and the permit is on board the vessel and is valid.

(9) Fail to report to the Regional Director within 15 days any

change in the information contained in the permit application as

required under Sec. 649.4(k) or Sec. 649.5(k).

(10) Make any false statement in connection with an application

under Sec. 649.4 or Sec. 649.5.

(11) Fail to affix and maintain permanent markings as required by

Sec. 649.8.

(12) Sell, transfer, or barter or attempt to sell, transfer, or

barter to a dealer any American lobsters unless the dealer has a valid

Federal Dealer's Permit issued under Sec. 649.6.

(13) Land, offload, remove, or otherwise transfer; or attempt to

land, offload, remove, or otherwise transfer American lobsters or fish

from one vessel to another vessel.

(b) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel with a Category A American lobster permit as described under

Sec. 649.4(a)(5)(i) to do any of the following: (1) Land or possess on

board the vessel more than the possession limit specified in

Sec. 649.22.

(2) Land or possess on board the vessel more than 100 American

lobsters in any one calendar day.

(c) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel with a Category B American lobster permit as described under

Sec. 649.4(a)(5)(ii), to land, or possess on board the vessel, American

lobsters in excess of the Category B possession limit established

according to the publication of an interim final rule in accordance

with the process under Sec. 649.22(c).

(d) In addition to the prohibitions specified in paragraphs (a),

(b), and (c) of this section, it is unlawful for any person owning or

operating a vessel that has not been issued a limited access American

lobster permit as described under Sec. 649.4(a), to do any of the

following: (1) Possess on board a vessel or land American lobsters

harvested in or from the EEZ unless the vessel is a party/charter or

dive boat and there are six or fewer American lobsters per person on

such boats and the lobsters are not sold, traded or bartered.

(2) [Reserved]

(e) In addition to the general prohibitions specified in Sec. 620.7

of this chapter and the prohibitions specified in paragraphs (a), (b)

and (c) of this section, it is unlawful for any person to do any of the

following: (1) Possess on board a vessel or land American lobsters

unless: (i) The American lobsters were harvested by a vessel that has

been issued and carries on board a valid limited access American

lobster permit under Sec. 649.4; or

(ii) The American lobsters were harvested by a vessel without a

Federal American lobster permit and that fishes for American lobsters

exclusively in state waters; or

(iii) The American lobsters were harvested by a party/charter or

dive vessel that possesses six or fewer American lobsters not intended

for trade, barter or sale per person aboard the vessel.

(2) Sell, barter or trade, or otherwise transfer, or attempt to

sell, barter or trade, or otherwise transfer, for a commercial purpose,

any American lobsters from a vessel unless the vessel has been issued a

valid Federal limited access American lobster permit under Sec. 649.4,

or the American lobsters were harvested by a vessel without a Federal

American lobster permit that fishes for American lobsters exclusively

in state waters;

(3) Land, offload, cause to be offloaded, sell, or transfer, or

attempt to land, offload, cause to be offloaded, sell or transfer

American lobsters from a fishing vessel issued a Federal limited access

American lobster permit, whether on land or at sea, as an owner or

operator, without accurately preparing and submitting, in a timely

fashion, the documents required by Sec. 649.7.

(4) Land, offload, cause to be offloaded, sell, or transfer, or

attempt to land, offload, cause to be offloaded, sell or transfer;

American lobsters harvested in or from the EEZ whether on land or at

sea, as an owner or operator, without accurately preparing and

submitting, in a timely fashion, the documents required by Sec. 649.7,

unless American lobsters were harvested by a party/charter or dive

vessel that possesses six or fewer, per person aboard the vessel,

American lobsters not intended for sale, trade, or barter.

(5) Purchase or receive American lobsters, or attempt to purchase

or receive American lobsters, whether on land or at sea, as a dealer

without accurately preparing, submitting and retaining, in a timely

fashion, the documents required by Sec. 649.7;

(6) Land, offload, remove, or otherwise transfer, or attempt to

land, offload, remove or otherwise transfer, American lobsters from one

vessel to another unless the American lobsters were harvested by a

vessel without a Federal American lobster permit and that fishes for

American lobsters exclusively in state waters;

(7) Purchase, possess, or receive for a commercial purpose, or

attempt to purchase, possess, or receive for a commercial purpose, as,

or in the capacity of, a dealer, American lobsters taken from a fishing

vessel, unless in possession of a valid dealer's permit issued under

Sec. 649.6;

(8) Purchase, possess, or receive for commercial purposes, or

attempt to purchase or receive for commercial purposes, American

lobsters caught by a vessel other than one issued a valid Federal

limited access American lobster permit under Sec. 649.4, unless the

American lobsters were harvested by a vessel without a Federal American

lobster permit and that fishes for American lobsters exclusively in

state waters;

(9) Purchase, possess or receive for commercial purpose from a

vessel or attempt to purchase, possess or receive for commercial

purposes, American lobsters from a vessel in excess of any possession

or landing limit applicable to such vessel under Sec. 649.22.

(10) To be, or act as, an operator of a vessel fishing for or

possessing American lobsters in or from the EEZ, or issued a Federal

American lobster permit under Sec. 649.4, without having been issued

and possessing a valid operator's permit issued under Sec. 649.5.

(11) Assault, resist, oppose, impede, harass, intimidate, or

interfere with either a NMFS-approved observer aboard a vessel, or an

authorized officer conducting any search, inspection, investigation, or

seizure in connection with enforcement of this part;

(12) Make any false statement, oral or written, to an authorized

officer, concerning the taking, catching, harvesting, landing,

purchase, sale, or transfer of any American lobsters;

(13) Make any false statement on any report required to be

submitted or maintained under Sec. 649.7; or

(14) Violate any provision of this part, the Magnuson Act, or any

regulation, permit, or notification issued under the Magnuson Act or

these regulations.

(15) Possess or land any American lobsters harvested in or from the

EEZ in violation of Sec. 649.20.

(f) Any person possessing, or landing American lobsters at or prior

to the time when those American lobsters are landed, or are received or

possessed by a dealer, is subject to all of the prohibitions specified

in paragraphs (a), (b) and (c) of this section, unless the American

lobsters were harvested by a vessel without a Federal American lobster

permit and that fishes for American lobsters exclusively in state

waters or are from a party/charter or dive vessel that possesses or

possessed six or fewer American lobsters per person aboard the vessel

and the lobsters are not intended for sale, trade, or barter.

(g) Presumption. American lobsters that are possessed, or landed at

or prior to the time when the American lobsters are received by a

dealer, or American lobsters that are possessed by a dealer, are

presumed to be harvested from the EEZ. A preponderance of all submitted

evidence that such American lobsters were harvested by a vessel without

a Federal American lobster permit and fishing exclusively for American

lobsters in state waters will be sufficient to rebut the presumption.

(h) The possession of egg-bearing female American lobsters, V-

notched female American lobsters, or American lobsters that are smaller

than the minimum size set forth in Sec. 649.20(b), will be prima facie

evidence that such American lobsters were taken or imported in

violation of these regulations. Evidence that such American lobsters

were harvested by a vessel not holding a permit under this part and

fishing exclusively within state or foreign waters will be sufficient

to rebut the presumption.

Sec. 649.10 Facilitation of enforcement.

See Sec. 620.8 of this chapter.

Sec. 649.11 Penalties.

See Sec. 620.9 of this chapter.

Subpart B--Management Measures

Sec. 649.20 Minimum size and landing requirements.

(a) Condition. By being issued a Federal limited access American

lobster permit, the vessel owner is subject to all measures in this

subpart regardless of where American lobsters were harvested.

(b) Carapace length. (1) The minimum carapace length for all

American lobsters harvested in or from the EEZ is 3\1/4\ inches (8.26

cm).

(2) The minimum carapace length for all American lobsters landed,

harvested, or possessed at or after landing by vessels issued a Federal

American lobster permit, is 3\1/4\ inches (8.26 cm).

(c) Mutilation. (1) It is unlawful for any person to remove meat or

any body appendage from any American lobster harvested in or from the

EEZ before landing, or to have in possession on board any American

lobster part other than whole lobsters.

(2) It is unlawful for any owner, operator or person aboard a

vessel issued a Federal American lobster permit to remove meat or any

body appendage from any American lobster before landing, or to have in

possession on board any American lobster part other than whole

lobsters.

(d) Berried females. (1) Any berried female American lobster

harvested in or from the EEZ must be returned to the sea immediately.

(2) Any berried female American lobster harvested or possessed by a

vessel issued a Federal American lobster permit must be returned to the

sea immediately.

(e) Scrubbing. (1) No person may remove extruded eggs attached to

the abdominal appendages from any female American lobster harvested on

or from the EEZ.

(2) No owner, operator or person aboard a vessel issued a Federal

American lobster permit may remove extruded eggs attached to the

abdominal appendages from any female American lobster.

Sec. 649.21 Gear identification and marking, escape vent, and ghost

panel requirements.

(a) Identification. All lobster gear deployed in the EEZ or

possessed by a person whose vessel is permitted for fishing in the EEZ,

and not permanently attached to the vessel, must be legibly and

indelibly marked with one of the following codes of identification: (1)

A number assigned by the Regional Director; and/or

(2) Whatever positive identification marking is required by the

vessel's home-port state.

(b) Marking. In the areas of the EEZ described in paragraph (b)(4)

of this section, lobster pot trawls are to be marked as follows: (1)

Lobster pot trawls of three or fewer pots must be marked with a single

buoy.

(2) Lobster pot trawls consisting of more than three pots must have

a radar reflector and a single flag or pennant on the westernmost end

(marking the half compass circle from magnetic south through west to

and including north), while the easternmost end (meaning the half

compass circle from magnetic north through east to and including south)

of an American lobster trawl must be marked with a radar reflector

only. Standard tetrahedral corner radar reflectors (see Figure 1 of

this part) of at least 8 inches (20.32 cm) (both in height and width

and made from metal) must be employed.

(3) No American lobster pot trawl shall exceed 1.5 nautical miles

(2.78 km) in length as measured from buoy to buoy.

(4) Gear marking requirements apply in the following areas: (i)

Gulf of Maine gear area. All waters of the EEZ north of 42 deg.20' N.

latitude seaward of a line drawn 12 nautical miles (22.2 km) from the

baseline of the territorial sea;

(ii) Georges Bank Gear Area. All waters of the EEZ south of

42 deg.20' N. latitude and east of 70 deg.00' W. longitude or the outer

boundary of the territorial sea, whichever lies farther east;

(iii) Southern New England Gear Area. All waters of the EEZ west of

70 deg.00' W. longitude, east of 71 deg.30' W. longitude at a depth

greater than 25 fathoms (45.72 m); and

(iv) Mid-Atlantic Gear Area. All waters of the EEZ, west of

71 deg.30' W. longitude and north of 36 deg.33' N. latitude at a depth

greater than 40 fathoms (73.15 m).

(c) Escape vents. All American lobster traps deployed in the EEZ or

possessed by a person whose vessel is permitted for fishing in the EEZ,

as specified under Sec. 649.4, must be constructed to include one of

the following escape vents in the parlor section of the trap. The vent

must be located in such a manner that it would not be blocked or

obstructed by any portion of the trap, associated gear, or the sea

floor in normal use.

(1) The specifications for escape vents are as follows:

(i) A rectangular portal with an unobstructed opening not less than

1\7/8\ inches (4.76 cm) by 5\3/4\ inches (14.61 cm);

(ii) Two circular portals with unobstructed openings not less than

2\3/8\ inches (6.03 cm) in diameter.

(2) The Regional Director may, at the request of, or after

consultation with, the Lobster Oversight Committee of the Council,

approve, and publish in the Federal Register any other type of

acceptable escape vent that the Regional Director finds to be

consistent with paragraphs (c)(1) (i) and (ii) of this section.

(d) Ghost panel. Lobster traps not constructed entirely of wood

must contain a ghost panel.

(1) The specifications of this requirement are as follows:

(i) The opening to be covered by the ghost panel must be

rectangular and shall not be less than 3\3/4\ inches (9.53 cm) by 3\3/

4\ inches (9.53 cm).

(ii) The panel must be constructed of, or fastened to the trap

with, one of the following untreated materials: Wood lath, cotton,

hemp, sisal or jute twine not greater than \3/16\ inch (0.48 cm) in

diameter, or non-stainless, uncoated ferrous metal not greater than \3/

32\ inch (0.24 cm) in diameter.

(iii) The door of the trap may serve as the ghost panel if fastened

with a material specified in paragraph (d)(1)(ii) of this section.

(iv) The ghost panel must be located in the outer parlor(s) of the

trap and not the bottom of the trap.

(2) The Regional Director may, at the request of, or after

consultation with, the Lobster Oversight Committee of the Council,

approve, and publish in the Federal Register, any other design,

mechanism, material, or specification not described in the regulations

in this part that serves to create an escape portal not less than 3\3/

4\ inches (9.53 cm) by 3\3/4\ inches (9.53 cm).

(e) Enforcement action. Unidentified, unmarked, unvented, or

improperly vented American lobster traps will be seized and disposed of

in accordance with the provisions of part 219 of this title.

Sec. 649.22 Possession restrictions and target quota.

(a) Owners or operators of vessels not issued a Federal American

lobster permit, except party, charter, and dive boats that possess six

or fewer American lobsters per person aboard the vessel, recreational

vessels, and vessels fishing for American lobsters exclusively in state

waters, are prohibited from possessing on a vessel or landing American

lobsters harvested in or from the EEZ. Owners or operators of vessels

not issued Federal American lobster permits are prohibited from

selling, bartering, or trading or attempting to sell, trade, or barter

American lobsters harvested by the vessel in or from the EEZ.

(b) Owners or operators of vessels with a Category A American

lobster limited access permit, as specified under Sec. 649.4, are

prohibited from possessing or landing more than 100 American lobsters,

by count, per trip, regardless of length, or per calendar day if more

than one trip is made in a calendar day, while fishing with or

harvested by gear other than lobster traps.

(c) In 1994, when the Regional Director determines that the

commercial landings of American lobster by owners or operators of

vessels with Category A and B American lobster limited access permits

using gear other than lobster traps, as specified under Sec. 649.4,

will exceed 3.35 million lbs (1.52 million kg) (75 percent of the

target quota) he/she shall implement the following vessel landing quota

as an interim final rule: All vessels issued Federal American lobster

permits shall be prohibited from possessing or landing more than 100

American lobsters, by count, per trip, regardless of length, or per

calendar day if more than one trip is made in a calendar day, while

fishing with or harvested by gear other than American lobster traps.

Sec. 649.23 Transfer at sea.

(a) Owners or operators of vessels permitted under Sec. 649.4 are

prohibited from transferring or attempting to transfer fish from one

vessel to another vessel.

(b) All persons are prohibited from transferring or attempting to

transfer American lobsters harvested in or from the EEZ from one vessel

to another vessel.

Sec. 649.24 Restrictions on trawl gear while in the trap fishery.

(a) To possess or land American lobster as a Category C vessel, to

possess any gear other than American lobster traps, including but not

limited to trawl gear, that is capable of catching American lobsters

and is aboard the vessel, such gear must be disabled so that it is

incapable of catching American lobsters. Nets or gear other than

lobster traps that conform to one of the following specifications and

that can be shown not to have been in recent use and not available for

immediate use is considered to be disabled:

(1) Gear stowed below deck, provided:

(i) It is located below the main working deck from which the gear

is deployed and retrieved;

(ii) The towing wires, including the ``leg'' wires, are detached

from the gear, if trawl gear;

(iii) It is fan-folded (flaked) and bound around its circumference

if it is trawl gear.

(2) Gear stowed and lashed down on deck, provided: (i) It is fan-

folded (flaked) and bound around its circumference if trawl gear;

(ii) It is securely fastened to the deck or rail of the vessel; and

(iii) The towing wires, including the leg wires, are detached from

the net, if trawl gear.

(3) A net or other gear that is on a reel and is covered and

secured, provided: (i) The entire surface of the gear is covered with

canvas or other similar material that is securely bound;

(ii) The towing wires, including the leg wires, are detached from

the net, if trawl gear; and

(iii) The codend is removed from the net and stored below deck, if

trawl gear.

(4) Nets or other gear that are secured in a manner authorized in

writing by the Regional Director.

Sec. 649.25 Experimental fishing exemption.

(a) The Regional Director may exempt any person or vessel from the

requirements of this part for the conduct of experimental fishing

beneficial to the management of the American lobster resource or

fishery.

(b) The Regional Director may not grant such exemption unless it is

determined that the purpose, design, and administration of the

exemption is consistent with the objectives of the FMP, the provisions

of the Magnuson Act, and other applicable law, and that granting the

exemption will not: (1) Have a detrimental effect on the American

lobster resource and fishery; or

(2) Create significant enforcement problems.

(c) Each vessel participating in any exempted experimental fishing

activity is subject to all provisions of this part, except those

necessarily relating to the purpose and nature of the exemption. The

exemption will be specified in a letter issued by the Regional Director

to each vessel participating in the exempted activity. This letter must

be carried aboard the vessel seeking the benefit of such exemption.

Subpart C--Stock Rebuilding Program and Framework Adjustments to

Management Measures

Sec. 649.41 Purpose and scope.

The purpose of this subpart is to specify the requirements and

framework procedures for implementing the Stock Rebuilding Program,

intended to eliminate overfishing in any resource areas.

Sec. 649.42 Stock rebuilding program requirements and time frame.

(a) General. (1) The Council shall have 1 year from [insert

effective date of the final rule] to submit management measures to

achieve the objectives of the FMP. The measures must be designed to

achieve the FMP objectives for reducing fishing mortality in 5 years

for the stock in the Gulf of Maine segment of the fishery and 10 years

for the Southern New England segment of the stock. Such measures may be

submitted through the Magnuson Act amendment process or through the

first-year area management framework specifications in Sec. 649.44.

(2) In developing such management measures the Council shall submit

management measures to reduce fishing mortality in each of four

management areas specified in paragraph (b) of this section. These

management measures shall be implemented according to the first-year

area management framework specifications in Sec. 649.43.

(3) If the Council has not submitted management measures sufficient

to achieve the objectives of the FMP on or before [insert date 1 year

from effective date of the final rule], the Secretary shall determine,

according to provisions of 16 U.S.C. 1854(c), whether to prepare an

amendment to the FMP.

(b) Management areas. The Stock Rebuilding Program to be submitted

by the Council shall be developed based on the status of stock of

American lobsters and management considerations for each of the areas

described and defined in this paragraph (b).

(1) Area 1. Near-shore EEZ Waters of the Gulf of Maine. This area

is defined by the area bounded by straight lines (rhumb lines)

connecting the following points in the order stated and the territorial

sea:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

A........................... 44 deg.04' N. 67 deg.19' W. and northward

along the irregular U.S.-

Canada Maritime Boundary

to the territorial sea.

B........................... 43 deg.03' N. 70 deg.00' W.

C........................... 42 deg.14' N. 70 deg.00' W.

D........................... 42 deg.08' N. 69 deg.55' W.

E........................... 42 deg.06' N. 70 deg.04' W.

------------------------------------------------------------------------

(2) Area 2. Near-shore EEZ Waters of Southern New England. This

area is defined by the area bounded by straight lines (rhumb lines)

connecting the following points in the order stated and the territorial

sea:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

E........................... 42 deg.06' N. 70 deg.04' W.

D........................... 42 deg.08' N. 69 deg.55' W.

F........................... 41 deg.10' N. 69 deg.06' W.

G........................... 40 deg.46' N. 71 deg.34' W.

H........................... 41 deg.06' N. 71 deg.43' W.

------------------------------------------------------------------------

(3) Area 3. EEZ Offshore Waters. This area is defined by the area

bounded by straight lines (rhumb lines) connecting the following points

in the order stated and westerly of the U.S.-Canada Maritime Boundary:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

A........................... 44 deg.04' N. 67 deg.19' W. and northward

along the irregular U.S.-

Canada Maritime Boundary

to the territorial sea.

B........................... 43 deg.03' N. 70 deg.00' W.

C........................... 42 deg.14' N. 70 deg.00' W.

D........................... 42 deg.08' N. 69 deg.55' W.

F........................... 41 deg.10' N. 69 deg.06' W.

G........................... 40 deg.46' N. 71 deg.34' W.

J........................... 40 deg.13' N. 72 deg.44' W.

K........................... 38 deg.39' N. 73 deg.24' W.

L........................... 38 deg.12' N. 73 deg.55' W.

M........................... 37 deg.12' N. 74 deg.44' W.

N........................... 35 deg.41' N. 75 deg.10' W.

O........................... 35 deg.15' N. 75 deg.28' W.

------------------------------------------------------------------------

(4) Area 4. Near-shore Waters of the Middle Atlantic. This area is

defined by the area bounded by straight lines (rhumb lines) connecting

the following points in the order stated and the territorial sea:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

I........................... 41 deg.05' N. 71 deg.49' W.

H........................... 41 deg.06' N. 71 deg.43' W.

G........................... 40 deg.46' N. 71 deg.34' W.

J........................... 40 deg.13' N. 72 deg.44' W.

K........................... 38 deg.39' N. 73 deg.24' W.

L........................... 38 deg.12' N. 73 deg.55' W.

M........................... 37 deg.12' N. 74 deg.44' W.

N........................... 35 deg.41' N. 75 deg.10' W.

O........................... 35 deg.15' N. 75 deg.28' W.

------------------------------------------------------------------------

(c) Effort Management Teams (EMT). (1) The Council shall establish

EMTs for each area specified in paragraph (b) of this section for the

purpose of making recommendations to the Council on management measures

to achieve the objectives of the FMP.

(2) Members of each EMT shall be appointed by the Council, in

consultation with appropriate states and NMFS. Members of the EMT shall

consist of a group of technical representatives that serve on each EMT

and a group of representatives from the lobster industry, based on

their geographical affiliation with an EMT. The Council may decide the

number of representatives and operating procedures of the EMTs.

(3) No later than [insert date 6 months from effective date of

final rule], each EMT shall report its recommendations for management

measures for the stock rebuilding program for the area it represents to

the Council.

Sec. 649.43 First year framework specifications.

(a) On or before [insert date 6 months from effective date of final

rule], each EMT shall submit its recommendations for management

measures for the area it represents to the Council.

(b) After receiving the recommendations of the EMTs, the Council

shall determine what management measures are necessary for each

management area in order to achieve the objectives of stock rebuilding

specified in the FMP. For the management measures the Council

determines are necessary to meet FMP objectives, the Council shall

provide appropriate rationale and economic and biological analysis of

the determinations. The Council shall make these determinations over

the span of at least two Council meetings and provide the public with

advance notice of and opportunity to comment on the determinations and

the analyses before making final recommendations to be submitted to

NMFS. The Council's recommendation on necessary management measures

must come from one or more of the following categories:

(1) Minimum-size changes;

(2) A maximum-size limit;

(3) Trap limits;

(4) Seasonal closures of one or more management areas;

(5) Closed areas or zones within a management area;

(6) Restrictions on allowable fishing time;

(7) Restrictions on allowable catches;

(8) Permitting restrictions;

(9) Additional restrictions on gear;

(10) Overfishing definition;

(11) Any other management measures currently included in the FMP.

(c) After developing necessary management measures and receiving

public testimony, the Council shall make a recommendation to the

Regional Director on or before [insert date 1 year from effective date

of final rule]. The Council's recommendation must include supporting

rationale and, if management measures are recommended, an analysis of

impacts, and a recommendation to the Regional Director on whether to

publish the management measures as a final rule. If the Council

recommends that the management measures should be published as a final

rule, the Council must consider at least the following factors and

provide support and analysis for each factor considered: (1) Whether

the availability of data on which the recommended management measures

are based allows for adequate time to publish a proposed rule, and

whether regulations have to be in place for an entire harvest/fishing

season;

(2) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Council's recommended management measures;

(3) Whether there is an immediate need to protect the resource; and

(4) Whether there will be a continuing evaluation of management

measures adopted following their promulgation as a final rule.

(d) If the Council's recommendation includes adjustments or

additions to management measures, and if, after reviewing the Council's

recommendation and supporting information: (1) The Regional Director

concurs with the Council's recommended management measures and

determines that the recommended management measures may be published as

a final rule based on the factors specified in paragraph (c) of this

section, the action will be published in the Federal Register as a

final rule; or

(2) The Regional Director concurs with the Council's recommendation

and determines that the recommended management measures should be

published first as a proposed rule, the action will be published as a

proposed rule in the Federal Register. After additional public comment,

if the Regional Director concurs with the Council recommendation, the

action will be published as a final rule in the Federal Register; or

(3) The Regional Director does not concur, the Council will be

notified, in writing, of the reasons for the non-concurrence.

(e) Nothing in this section is meant to diminish the authority of

the Secretary to take emergency action under section 305(e) of the

Magnuson Act.

Sec. 649.44 Framework specifications after year 1.

(a) Annually, upon request from the Council, the Regional Director

will provide the Council with information of the status of the American

lobster resource, based on the most recent stock assessment report.

(b) The Council and ASMFC, through consultation with the ASMFC

Lobster Scientific Committee within the stock assessment process and

with the EMT, shall continue to monitor the effectiveness of the Stock

Rebuilding Program and to ensure, to the extent possible, that regional

measures (within a Management Area) do not shift costs from one

Management Area to another.

(c) In addition, the Council's Plan Development Team (PDT) for

American lobster shall make a determination whether other resource

conservation issues exist that require a management response in order

to meet the goals and objectives outlined in the FMP. The PDT shall

report its findings and recommendations to the Council. In its report

to the Council, the PDT shall provide the appropriate rationale and

economic and biological analysis for its recommendation, utilizing the

most current catch, effort, and other relevant data from the fishery.

(d) After receiving the PDT findings and recommendations, the

Council shall determine whether adjustments to, or additional,

management measures are necessary to meet the goals and objectives of

the FMP. After considering the PDT's findings and EMT recommendations,

or at any other time, if the Council determines that adjustments to, or

additional, management measures are necessary, it shall develop and

analyze appropriate management actions over the span of at least two

Council meetings. The Council shall provide the public with advance

notice of the availability of both the proposals and the analyses, and

opportunity to comment on them prior to and at the second Council

meeting. The Council's recommendation on adjustments or additions to

management measures must come from one or more of the following

categories:

(1) Minimum-size changes;

(2) A maximum-size limit;

(3) Trap limits;

(4) Seasonal closures of one or more management areas;

(5) Closed areas or zones within a management area;

(6) Restrictions on allowable fishing time;

(7) Restrictions on allowable catches;

(8) Permitting restrictions;

(9) Additional restrictions on gear;

(10) Overfishing definition;

(11) Any other management measures currently included in the FMP.

(e) After developing management actions and receiving public

testimony, the Council shall make a recommendation to the Regional

Director. The Council's recommendation must include supporting

rationale and, if management measures are recommended, an analysis of

impacts, and a recommendation to the Regional Director on whether to

publish the management measures as a final rule. If the Council

recommends that the management measures should be published as a final

rule, the Council must consider at least the following factors and

provide support and analysis for each factor considered:

(1) Whether the availability of data on which the recommended

management measures are based allows for adequate time to publish a

proposed rule, and whether regulations have to be in place for an

entire harvest/fishing season;

(2) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Council's recommended management measures;

(3) Whether there is an immediate need to protect the resource; and

(4) Whether there will be a continuing evaluation of management

measures adopted following their promulgation as a final rule.

(f) If the Council's recommendation includes adjustments or

additions to management measures, and if after reviewing the Council's

recommendation and supporting information:

(1) The Regional Director concurs with the Council's recommended

management measures and determines that the recommended management

measures may be published as a final rule based on the factors

specified in paragraph (d) of this section, the action will be

published in the Federal Register as a final rule; or

(2) The Regional Director concurs with the Council's recommendation

and determines that the recommended management measures should be

published first as a proposed rule, the action will be published as a

proposed rule in the Federal Register. After additional public comment,

if the Regional Director concurs with the Council recommendation, the

action will be published as a final rule in the Federal Register; or

(3) The Regional Director does not concur, the Council will be

notified, in writing, of the reasons for the non-concurrence.

(g) Nothing in this section shall impair the authority of the

Secretary to take emergency action under section 305(e) of the Magnuson

Act.

BILLING CODE 3510-22-P

TP09MR94.000

Figure 1 to Part 649.--Standard Tetrahedral Corner Radar Reflector.

TP09MR94.001

Figure 2 to Part 649.--American lobster Management Areas

established for the purposes of regional lobster management.

[FR Doc. 94-5314 Filed 3-4-94; 10:39 am]