American Lobster Fishery

SUMMARY: NMFS issues final regulations to manage the American lobster

fishery in the Exclusive Economic Zone (EEZ) from Maine through North

Carolina. These final regulations remove existing management measures

issued under the authority of the Magnuson-Stevens Fishery Conservation

and Management Act (Magnuson-Stevens Act) and replaces them with the

same and a variety of new management measures issued under the

authority of the Atlantic Coastal Fisheries Cooperative Management Act

(ACFCMA). New measures include designation of lobster management areas,

restrictions on fishing gear and tagging requirements for lobster

traps. In addition, these regulations establish an annual regulatory

adjustment process for implementation of additional measures in

consultation with the Atlantic States Marine Fisheries Commission

(Commission). The intent of these regulations, in combination with

state regulations governing the American lobster fishery in non-Federal

waters, is to end overfishing and rebuild stocks of American lobsters.

DATES: Effective January 5, 2000.

ADDRESSES: Copies of supporting documents, including a Final

Environmental Impact Statement and Regulatory Impact Review (FEIS/RIR)

are available from Harold C. Mears, State, Federal and Constituent

Programs Office, NMFS Northeast Region, One Blackburn Drive,

Gloucester, MA 01930. Comments regarding burden estimates should be

sent to: The Regional Administrator, NMFS, 1 Blackburn Drive,

Gloucester, MA 01930, and the Office of Information and Regulatory

Affairs, Office of Management and Budget, Washington, DC 20503 (ATTN:

NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Robert Ross, NMFS, Northeast Region,

978-281-9234.

SUPPLEMENTARY INFORMATION: These final regulations remove existing

regulations issued under the authority of the Magnuson-Stevens Act.

NMFS has withdrawn the approval for the American Lobster Fishery

Management Plan (FMP) because the majority of the lobster fishery

(approximately 80 percent) takes place in state waters. Regulatory

action in the EEZ (3 nautical miles [nm] (5.56 kilometers [km]) to 200

nm (370.4 km) from shore) alone, even a total moratorium on harvesting

lobsters, would not end overfishing of the resource. Adequate state

lobster conservation measures, therefore, are essential to end

overfishing of American lobster. It is clear to NMFS that it is not

possible to meet the rebuilding requirements of the Magnuson-Stevens

Act without full cooperation of the Atlantic coast states. Accordingly,

NMFS is implementing Federal lobster conservation measures in the EEZ

under the authority of the ACFCMA as part of Federal/state cooperative

management.

Section 804(b) of ACFCMA authorizes the Federal government to issue

regulations governing fishing in the EEZ that are compatible with the

effective implementation of the Commission's American Lobster

Interstate Fishery Management Plan (ISFMP) and consistent with the

national standards set forth in section 301 of the Magnuson-Stevens

Act. Given limitations on NMFS to manage the lobster resource

throughout its range, NMFS has determined that regulations under ACFCMA

in conjunction with the ISFMP, constitute the best option for

management of the American lobster resource.

The Commission approved Amendment 3 to the American Lobster ISFMP

in December 1997. The goal of Amendment 3 is to have a healthy lobster

resource and a management regime that provides for a sustained harvest

of lobsters, maintains appropriate opportunities for participation, and

provides for cooperative development of conservation measures by all

stakeholders. Amendment 3 includes recommended measures in Federal

waters as well as in state waters (specific measures are described

later in this preamble), and it establishes a procedure whereby

fishermen, including some who fish exclusively in Federal waters, may

make recommendations for further management measures to meet predefined

targets designed to end overfishing and facilitate stock rebuilding.

The Magnuson-Stevens Act requires NMFS to develop plans to end

overfishing and rebuild overfished stocks. NMFS has identified lobster

as overfished throughout its range. This finding has been confirmed by

an independent review panel convened by NMFS and the Commission.

Therefore, NMFS is required by the Magnuson-Stevens Act to develop a

plan to end overfishing of lobsters and rebuild the lobster fishery.

These regulations, together with a process for working with the

Commission to devise future measures, constitute a plan to meet this

mandate.

On March 27, 1996, NMFS first proposed to withdraw approval of the

FMP and issue complementary regulations under the ACFCMA (61 FR 13478).

NMFS proposed that the final withdrawal of the approval of the FMP, and

the removal of its implementing regulations, would occur upon

completion of an effective state management program developed by the

Commission.

Amendment 3 is a comprehensive plan for managing the lobster

fishery in state and Federal waters. While it does not specify future

steps that are needed to rebuild egg production and end overfishing of

lobster, it does provide a framework for the development of those

measures to rebuild the resource.

Status of Stock

The most recent NMFS assessment of the lobster stock concluded that

it is overfished throughout its range (22nd Northeast Regional Stock

Assessment Workshop Document 96-13, dated September, 1996). Background

information on the status of lobster stocks and the lobster fishery was

presented in the preamble to the proposed rule (64 FR 2708) and is not

repeated here. Additional background is available and contained in a

FEIS/RIR prepared by NMFS for this rule (see ADDRESSES). Lobster

Conservation Measures Currently in Place

Most current management measures and prohibitions for Federal

waters were promulgated under the authority of the Magnuson-Stevens Act

and are codified at 50 CFR part 649. These include:

1. A moratorium on new entrants into the fishery through December

31, 1999,

2. A prohibition on the possession of lobsters bearing eggs or from

which eggs have been removed by any means,

3. A prohibition on the possession of lobster meat and detached

tails, claws or other parts of lobster,

[[Page 68229]]

4. A prohibition on the possession of V-notched lobsters (i.e.,

female lobsters that have carried eggs and are marked with a V-shaped

cut in the tail),

5. A requirement to install a biodegradable ``ghost'' panel in each

trap (to allow lobsters to escape from a lost trap),

6. A minimum carapace size of 3\1/4\ inches (8.26 cm),

7. A requirement to install escape vents on traps,

8. A prohibition on the possession at any time of more than six

lobsters per person when aboard a head, charter, or commercial dive

vessel,

9. A requirement that gear be marked in order to identify the

permit holder,

10. A prohibition on the interstate or international trade of live

whole lobsters smaller than the Federal minimum size, and

11. A landing limit of 100 lobsters (or parts thereof) per day, up

to a maximum of 500 lobsters (or parts thereof) per trip of 5 or more

days for fishermen using non-trap methods (this limit is imposed by

regulations issued under the authority of the ACFCMA and is codified at

50 CFR 697.7).

This final regulation continues all of these measures, as well as

imposes new measures described herein, but implements them under

authority of the ACFCMA instead of the Magnuson-Stevens Act.

Accordingly, this rule removes the lobster regulations currently

codified at 50 CFR part 649 and replaces them with regulations codified

at 50 CFR part 697.

Measures Adopted by the Commission

The states, through adoption of Amendment 3 to the Commission's

American lobster ISFMP, recognized the need to end overfishing and

rebuild stocks of American lobster. Approved in December 1997, this

amendment established an 8 year stock rebuilding schedule to restore

egg production which would be 10 percent or more of the level produced

by an unfished lobster population. The associated management measures

are discussed in the proposed rule (64 FR 2708), and are not repeated

here. The Commission approved Addendum 1 to that amendment on August 3,

1999. That action approved additional area-based measures identified by

the lobster conservation management teams for the seven lobster

conservation management areas, comprised of industry representatives

and established by the Commission. Except for Area 6 (Long Island

Sound), each of the seven areas includes waters under Federal

jurisdiction. The Commission recommended to the Secretary that he

implement compatible regulations in Federal waters. The final

regulations being issued by this rulemaking implement the Commission's

recommendations contained in Amendment 3 of the American Lobster ISFMP.

The Commission's recommendations contained in the more recent Addendum

1, including imposing limitations on fishing for lobster based on

historical participation and fishing practices in selected management

areas, will be evaluated in accordance with Federal rulemaking and

public review procedures. Toward this end, an advance notice of

proposed rulemaking was published on September 1, 1999 (64 FR 47756) to

promote awareness of potential eligibility criteria for future access

to lobster management areas and to discourage shifts in the type of

gear used to harvest lobster by Federal permit holders.

The Commission area-specific management measures currently include:

Area 1, Inshore Gulf of Maine

(1) A 1000 limit on the number of traps a vessel may set in fishing

year 1999, and a 800 trap limit per vessel in fishing year 2000.

(2) A prohibition on the possession of lobsters with a carapace

length greater than 5 inches (12.7 cm).

Area 2, Inshore Southern New England

A plan to cap, and then reduce, the maximum number of traps a

vessel may set.

Area 3, Offshore Waters (Entirely in Federal Waters)

The Commission, in Amendment 3, recommended that NMFS implement a

limit of 2000 traps per vessel. The Commission in Addendum 1 to the

American Lobster ISFMP recommends trap limits based upon historical

participation.

Areas 4, 5 and 6, Long Island and South

Trap reductions based upon historical participation in these

management areas.

Outer Cape Cod Lobster Management Area

The same trap limits as for Area 1, but no maximum carapace size.

The Commission also adopted several measures for state waters which

are not directly related to the trap fishery. For example, under

Amendment 3, it adopted a prohibition on spearing lobsters, and also

established limitations on harvesting lobsters by non-trap gear.

The NMFS Plan

The NMFS Plan retains all current Federal measures for the

management of the lobster fishery, but implements them by regulations

issued under the authority of the ACFCMA. In addition, the following

new measures are implemented to make the Federal plan compatible with

the Commission's American Lobster ISFMP. Note that some measures apply

to all Federal permit holders while others apply only in specific

areas.

1. Moratorium on new entrants into the fishery. There are currently

approximately 3000 vessels with permits to fish for lobster in Federal

waters. Under the current moratorium scheduled to end on December 31,

1999, no new permits are being issued. Persons may enter the fishery

only by purchasing an existing vessel that already has a limited access

permit and then contacting NMFS to request a permit transfer. The

moratorium is continued. This will prevent any increase in the number

of vessels permitted to take lobsters in Federal waters. An increase

could undermine the conservation benefits of other measures.

2. Designation of Lobster Management Areas. In order to be

compatible with the Amendment 3, the boundaries of the lobster

management areas specified by the Commission are adopted. The

coordinates marking the perimeter of the areas are found in the

regulations at Sec. 697.18.

3. Lobster management area designation for vessels fishing for

American lobsters with traps. Owners of vessels that elect to harvest

American lobsters with traps are required to inform NMFS each year of

the lobster management areas they intend to set trap gear in. Beginning

May 1, 2000, vessels issued a limited access American lobster permit

and fishing with traps, in any of the lobster conservation management

areas (specified in Sec. 697.18), must have on board the vessel a

management area designation certificate or valid limited access

American lobster permit specifying the management area(s) the vessel is

allowed to fish in.

For fishing years 2000 and beyond, a vessel owner fishing with

traps capable of catching American lobster must inform NMFS in which

lobster management areas the vessel intends to fish when the vessel

owner applies for or renews his/her limited access American lobster

permit. Once a vessel has been issued a lobster management area

designation certificate or limited access American lobster permit

specifying the lobster EEZ management areas in which the vessel may

fish, no

[[Page 68230]]

changes to the EEZ management areas specified may be made for the

vessel for the remainder of the fishing year unless the vessel becomes

a replacement vessel for another qualified vessel.

A vessel issued a lobster management area designation certificate

or limited access American lobster permit specifying more than one EEZ

management area must abide by the most restrictive management measures

in effect for any one of the specified areas, regardless of the area

being fished, for the entire fishing year.

4. Near-shore area trap limits. In order to cap effort in the near-

shore areas, Federal permit holders fishing in or electing to fish in

Areas 1, 2, 4, 5, 6, the Outer Cape Lobster Management Area and/or only

the Area 2/3 Overlap, are limited to setting a maximum of 1000 traps in

fishing year 1999 and to setting a maximum of 800 traps in fishing year

2000. Further trap limits or alternative conservation equivalent

measures may be required in the future to meet stock rebuilding

objectives. The purpose of this approach is to ensure that the

conservation benefits that might be achieved by other measures are not

lost by further expansion of fishing effort in the near-shore areas.

Alternative and/or additional management measures other than those

pertaining to trap limits will be considered in Federal waters in

accordance with Commission recommendations and the adaptive management

procedures identified in Sec. 697.25 of the regulations.

5. Near-shore area maximum trap size. One way to increase fishing

effort without increasing the number of traps in the water is to

increase the size of those traps. The larger the trap, the more

lobsters it can hold. To minimize this, the size of lobster traps in

the near-shore areas is restricted. To allow Federal permit holders a

phase-in period to replace traps currently being fished that are larger

than those allowed in Amendment 3, a two-step process restricting the

size of traps fished in any nearshore area(s) is implemented.

Beginning January 5, 2000, vessels cannot possess or deploy traps

larger than 25,245 cubic inches (413,690 cubic centimeters) in volume

as measured on the outside portion of the trap, exclusive of runners,

in any nearshore area (Area 1, 2, 4, 5, 6, the Outer Cape Lobster

Management Area, and/or only in the Area 2/3 Overlap). Beginning May 1,

2003, vessels cannot possess or deploy traps larger than 22,950 cubic

inches (376,081 cubic centimeters) in volume as measured on the outside

portion of the trap, exclusive of runners, in any nearshore management

area.

6. Escape vents. Lobster trap gear must have a rectangular escape

vent of at least 5\3/4\ inches by 1\15/16\ inches (14.6 cm by 4.92 cm),

or two circular portals of at least 2\7/16\ inches (6.19 cm) in

diameter.

7. Area 1 maximum carapace size. In order to be compatible with the

Commission's American Lobster ISFMP recommendations, the maximum

carapace size is 5 inches (12.7 cm) in all areas, for Federal permit

holders fishing in or electing to fish in Area 1. The 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 unsegmented shell of the lobster). The purpose of

this measure is to protect large females that are capable of producing

many eggs. This measure will provide increasing conservation benefits

as the number of larger individuals increases in the American lobster

population.

8. Off-shore area trap limits and maximum trap size. Federal permit

holders fishing in, or, electing to fish in Area 3, or only Area 3 and

the Area 2/3 overlap, are limited to setting no more than 2000 traps

from the permitted vessel in fishing year 1999 and no more than 1800

traps from the permitted vessel in fishing year 2000. Further

reductions of this trap limit may be required to meet lobster stock

rebuilding objectives. The size of lobster traps in Area 3 and in the

Area 2/3 overlap also is restricted. To allow Federal permit holders a

phase-in period to replace traps currently being fished that are larger

than those allowed in Amendment 3, a two-step process restricting the

size of traps fished only in Area 3, or only in Area 3 and the Area 2/3

Overlap is implemented.

Beginning January 5, 2000, vessels fishing with traps only in Area

3 or only in Area 3 and the Area 2/3 Overlap cannot possess or deploy a

trap larger than 33,110 cubic inches (542,573 cubic centimeters) in

volume as measured on the outside portion of the trap, exclusive of

runners.

Beginning May 1, 2003, vessels fishing with traps only in Area 3 or

only in Area 3 and the Area 2/3 Overlap cannot possess or deploy a trap

larger than 30,100 cubic inches (493,249 cubic centimeters) in volume

as measured on the outside portion of the trap, exclusive of runners.

Vessels fishing only in Area 3 or only in Area 3 and the Area 2/3

Overlap are allowed a higher maximum number of traps and a larger

maximum trap size in order to offset the additional costs and time

required for fishing offshore. Federal permit holders who fish or elect

to fish in Area 3 and any of the near-shore areas (Areas 1, 2, 4, 5, 6,

and/or the Outer Cape Lobster Management Area), except the Area 2/3

Overlap, are limited to setting a maximum of 1000 traps from the

permitted vessel in fishing year 1999 and to setting a maximum of 800

traps from the permitted vessel in fishing year 2000. Federal permit

holders who elect to fish in Area 3 and any of the near-shore areas

(Areas 1, 2, 4, 5, 6 and/or the Outer Cape Lobster Management Area)

except the Area 2/3 Overlap, are prohibited from setting traps that are

larger than the near-shore maximum size limit. Alternative and/or

additional management measures will be considered in Federal waters in

accordance with Commission recommendations and procedures identified in

Sec. 697.25.

9. Trap tag allocations. As a way to enforce the trap limits for

each lobster management area, effective May 1, 2000, each trap set by a

Federal permit holder must have a trap tag attached to the trap bridge

or central cross-member. Lobster fishermen are required to purchase

tags from NMFS or a NMFS-authorized distributor. On or after January 1,

2000, a permit holder letter will be sent to all eligible Federal

limited access American lobster vessels informing them of the costs

associated with the tagging requirement and directions for obtaining

tags. Each permit holder will be allowed to purchase tags, up to the

maximum number of traps allowed in his or her area(s), plus 10 percent

to cover in-season losses. Those persons fishing in near-shore areas

will be allowed to purchase up to 880 tags in fishing year 2000. Those

persons fishing only in Area 3 or only in Area 3 and the Area 2/3

Overlap will be allowed to purchase up to 1980 tags in fishing year

2000. Tags will only be valid for one year and must be replaced each

year. Tags may not be sold, transferred or given away. The requirement

to affix a tag to each trap, beginning May 1, 2000, will be in lieu of

the current requirement that gear be marked with a vessel's official

number, Federal permit or tag number, or other specified form of

identification.

10. State/Federal coordination. NMFS may consider alternative

tagging programs with cooperating states through appropriate formal

agreements to allow American lobster permit holders to use trap tags

issued by those agencies to fish for lobster in the EEZ in lieu of trap

tags issued by NMFS. NMFS will provide notice, as appropriate, to

American lobster permit holders concerning procedures for procuring

trap tags.

11. Non-trap harvest restrictions. The regulations pertaining to

non-trap

[[Page 68231]]

landing limits that are currently in place are continued. It is

unlawful for a vessel that takes lobster by a method other than traps

to possess, retain on board, or land, in excess of 100 lobsters (or

parts thereof), for each lobster day-at-sea, or part of a lobster day-

at-sea, up to a maximum of 500 lobsters (or parts thereof) for any one

trip, unless otherwise restricted.

12. Modifications to the plan. On or before February 15, 2001, and

at least annually on or before February 15, thereafter, NMFS may

publish a proposed rule for evaluation of additional or different

management measures for Federal waters to meet ISFMP and/or lobster

stock rebuilding objectives. Some of the measures that might be

considered are (1) continued reductions in fishing effort (e.g., number

of traps fished) and (2) increases in the minimum harvestable size.

NMFS will consult with the Commission in the identification of

measures.

NMFS endorses an area management approach which allows industry-

tailored management measures to meet industry needs on an area-by-area

basis. Under this process, NMFS will work in partnership with the

Commission and the states, under the provisions of the American Lobster

ISFMP, in continuing efforts to develop a unified ``seamless'' approach

to bridge state and Federal jurisdictions on an area-by-area basis.

Comments and Responses

NMFS received hundreds of written comments on the American Lobster

proposed rule during the public comment period, which ran from January

11--February 26, 1999. Written comments were received from four members

of the Senate of the United States, three members of the U.S. Congress,

the Mid-Atlantic Fishery Management Council, the Atlantic States Marine

Fisheries Commission, the U.S. Department of Interior, eight state

fishery and environmental protection agencies, one state senator, nine

fishing industry associations, two environmental groups, and 748

individuals. One environmental group and two individuals supported

implementation of the management measures as identified in the proposed

Federal rule for American lobster. Conversely, 642 individuals

submitted letters and postcards that expressed general opposition to

the implementation of management measures in the proposed federal rule

for American lobster. All of the comments were carefully considered.

Concerns or opposition to specific aspects of the proposed Federal rule

are identified and responded to here.

Comment 1: Four hundred and seventy-eight commenters requested that

NMFS delay implementation of management measures until the Commission

approves the LCMT area management plans identified in the American

Lobster ISFMP Amendment 3, addenda 1 and 2, scheduled for public

hearings during 1999.

Response: Selected aspects of the LCMT plans, e.g., management

measures to control fishing effort in some areas based upon historical

fishing practices, were recently approved by the Commission through an

addendum to the American Lobster ISFMP. Approval of other measures

proposed by the LCMTs to end lobster overfishing has been further

postponed until a date uncertain, pending the results of an updated

stock assessment. NMFS believes that continued delay for full

consideration of the LCMT plans until a date yet to be determined by

the Commission jeopardizes needed management measures to protect the

lobster resource. On the basis of the recent ISFMP addendum, an advance

notice of proposed rulemaking was published on September 1, 1999, in

the Federal Register, to seek public comment on the potential for

compatible action to limit fishing effort in the EEZ on the basis of

historical participation. Additional area-specific management measures

in the EEZ, as may be recommended by the Commission under future

revisions to the ISFMP, will be considered under separate rulemaking.

Also, supplemental measures to achieve the ISFMP's objective to end

overfishing of American lobster will be implemented as described in the

preamble to this final rule during subsequent years of the stock

rebuilding period.

All management measures in the final rule, with the exception of

trap tag requirements and the requirement for possession of a

certificate or a permit relating to area management designations,

become effective January 5, 2000. A fishing area certificate or a

permit relating to area management designations and the lobster trap

tag program becomes effective May 1, 2000, coincident with the 2000/

2001 Federal fishing year. The delay of the certificate or a permit

requirement relating to area management designations affords the time

required for notification to Federal lobster permit holders and the

subsequent response and mailing of the certificates or permits. The

delay of the trap tag requirements allows additional time for

coordination of trap tag regulations with the Commission and state

fishery agencies, and will also allow additional time for the selection

of a trap tag vendor and subsequent purchase and deployment of tags by

Federal lobster permit holders coincident with the beginning of the

next fishing year.

Comment 2: Fourteen commenters opposed implementation of uniform

trap limits as described in the proposed rule, and provided

recommendations for alternative methods to determine trap allocations,

especially allocations based on historic trap levels.

Response: The capping and reduction of fishing effort, through

uniform trap limits, is an important first step in reducing lobster

fishing mortality that, when combined with other management measures,

will increase the effectiveness of those measures in achieving ISFMP

objectives to end overfishing and rebuild stocks of American lobster.

The LCMTs have submitted area management proposals to the Commission,

including management measures to control effort (some of which involve

historic participation considerations) and increase egg production. The

Commission adopted a two-phase approach to incorporate the LCMT

recommendations, which will involve two addenda to Amendment 3 to the

ISFMP. Addendum 1 incorporates measures from the LCMT proposals

directed at controlling fishing effort, while other management measures

to rebuild lobster stocks will be addressed in Addendum 2. The

Commission held public hearings during April-May 1999 on Addendum 1,

and will hold additional hearings on Addendum 2 in the future to

receive public comments on egg production objectives and other facets

of lobster management on an area by area basis. Since lobstermen

throughout the range of the resource often fish in more than one

management area, and since the plans vary with respect to proposed

regulatory measures (including trap allocation strategies), these

hearings provide an essential mechanism to enable an integrated public

and policy evaluation of a unified approach for lobster area

management. On August 3, 1999, the Commission approved guidelines as

part of Addendum 1 to Amendment 3 of the ISFMP for the determination of

trap limits based upon historical participation in certain lobster

management areas. As a result of that action, an advance notice of

proposed rulemaking was published on September 1, 1999 (64 FR 47756),

to seek public comment on whether there is a need to restrict access of

Federal permit holders to the lobster EEZ fishery on the basis of

historical participation. Continued Federal rulemaking, along with the

associated biological and

[[Page 68232]]

economic analyses, may be initiated in the near future.

Comment 3: Forty-eight commenters felt that NMFS should adopt a

plan and regulations that more specifically complement the Commission

plan, especially with regard to implementation dates for default

measures, including trap limits and trap tags.

Response: NMFS is attempting to the extent practicable to implement

EEZ regulations compatible with those in state waters identified in the

ISFMP. One of the ISFMP goals is to minimize inconsistencies between

state and Federal management regimes. The successful implementation of

needed measures to achieve lobster management objectives is contingent

not only on the resolve of state agencies to achieve those objectives,

but also by the Commission's timeframe for the technical, public and

policy review of area management proposals. The successful attainment

of management goals is also influenced by the ISFMP's specifications of

mandatory regulations in state waters, the establishment of a

compliance schedule for implementation of those measures, and the

inclusion of recommendations in the ISFMP for actions in the EEZ. Area

management is further challenged by the time required to implement

regulatory measures in state waters on a state by state basis, which

can vary from several days to several months. Similarly, timing of

lobster management measures in the EEZ is subject to Federal

legislative requirements and rulemaking.

With regard to the establishment of a resource-wide trap tagging

program, the Commission recommends an implementation date of January 1,

2000, rather than the May 1, 1999, implementation date for Federal

waters referenced in the proposed rule. Accordingly, NMFS is delaying

the implementation of a trap tag program for Federal lobster permit

holders until the beginning (May 1) of the Federal lobster fishing year

in the year 2000.

In response to public comments, NMFS has decided, beyond fishing

year 2000, not to identify, at this time, continued trap reductions as

a ``default'' management measure. Instead, NMFS will evaluate

forthcoming Commission recommendations for resource-wide management of

American lobster, based upon the Commission's review and approval of

conservation-equivalent proposals submitted by the LCMTs. Thus, NMFS is

attempting to be as compatible as possible with ISFMP implementation

dates, yet retaining the commitment to implement additional management

measures during the stock rebuilding period necessary to end

overfishing and rebuild stocks of American lobster.

Comment 4: Twenty-seven commenters objected to the mutual exclusion

provisions of the proposed rule which would prohibit vessels from

fishing in the offshore area if any nearshore management area was

elected, and would prohibit vessels from fishing in any of the

nearshore management areas if the vessel elected the offshore

management area.

Response: This ``mutual exclusion'' provision has been deleted from

the Federal regulations to be compatible with the Commission's ISFMP

management measures. Accordingly, the final rule allows Federal lobster

permit holders access to both inshore and offshore waters. A vessel

issued a lobster management area designation certificate or limited

access American lobster permit specifying more than one EEZ management

area must abide by the most restrictive management measures in effect

for any one of the specified areas, regardless of the area being

fished, for the entire fishing year.

Comment 5: Several commenters stressed the need for the regulations

to be adaptable for each lobster management area, preferably through

the use of industry LCMTs, to fit the needs and fishing patterns of the

industry in each area.

Response: The regulations were developed to accommodate

consideration of unique management strategies for each of the lobster

management areas. Proposals submitted by the respective LCMTs have been

evaluated and approved by the Commission during the approval procedures

for Addendum 1 to Amendment 3 of the ISFMP. See response to Comment 2.

At such time when the Commission may adopt future modifications to LCMT

proposals, NMFS will consider these changes, along with biological and

socio-economic analyses, through rule-making procedures.

Comment 6: One commenter does not believe that American lobsters

are overfished and, therefore, no additional management measures are

necessary.

Response: NMFS disagrees. The most recent NMFS assessment of the

lobster stock concluded that the resource is overfished throughout its

range (22nd Northeast Regional Stock Assessment Workshop Document 96-

13, dated September 1996).

Comment 7: Eight commenters stated that the measures identified in

the proposed rule do not adequately demonstrate that the proposed

management measures will end overfishing, increase egg production, or

protect the lobster resource.

Response: Management measures in Federal waters alone cannot end

overfishing or rebuild American lobster stocks. Since most of the

lobster fishery takes place in state waters, a joint management

approach in cooperation with the states and Commission is the best way

to protect the lobster resource. NMFS intends to work closely with the

Commission and its LCMTs to implement whatever further compatible

regulations are necessary to end overfishing and rebuild the lobster

resource.

Comment 8: Fifty-six commenters stated that NMFS should revise the

proposed gear marking requirements and allow vessels to continue to use

buoys instead of radar reflectors on lobster trawls containing more

than three traps when fishing within 12 nm (22.2 km) of shore. A

requirement to use radar reflectors would be cost prohibitive,

unnecessary, and could become a hazard to navigation in heavily fished

areas where dense concentrations of reflectors could appear as a solid

land mass on ship radar.

Response: NMFS agrees, and will maintain ``status quo'' gear

marking requirements.

Comment 9: One commenter felt NMFS should not mandate the compass

direction of gear marking trap trawls consisting of more than three

traps, but should allow fishermen to determine the appropriate

direction.

Response: NMFS disagrees. This requirement, contained in current

regulations, is necessary to facilitate the enforcement and

standardization of gear marking practices throughout the range of the

resource.

Comment 10: Several commenters stated that there is no accurate up-

to-date stock assessment or industry information (e.g., landings data,

fishing effort) upon which to base management decisions.

Response: NMFS disagrees. See response to Comment 6. The next stock

assessment, as well as a peer review of that assessment, has been

scheduled by the Commission to take place during the Fall 1999. The

conclusion that American lobster is overfished is based upon the best

available scientific information, as required by the ACFCMA. NMFS

agrees, however, that statistics on landings and fishing effort should

be improved to better characterize the resource and the lobster

fishery, for example, through increased sea sampling and mandatory

reporting at the vessel and dealer level on a trip-

[[Page 68233]]

by-trip basis. The associated requirements for such a program to

monitor the eventual success of fishery management measures are being

developed under the auspices of the State/Federal Atlantic Coastal

Cooperative Statistics Program (ACCSP).

Comment 11: Two commenters felt NMFS should increase the sea

sampling program for vessels using trap gear.

Response: NMFS agrees that there is a need to increase sea

sampling. However, increasing sea sampling is restricted by budgetary

constraints. NMFS has consulted with the Maine Department of Marine

Resources to enhance sea sampling of American lobsters in Maine state

waters during 1999.

Comment 12: Five commenters supported continuation of the current

moratorium on new entrants in the Federal lobster fishery until lobster

is no longer overfished.

Response: The current moratorium has been extended.

Comment 13: Twenty-two commenters felt that license holders with

Federal limited access lobster licenses who have not harvested lobsters

within a predetermined time period should lose their ability to renew

their permits.

Response: Current Federal regulations for Federal American lobster

(limited access) permit holders require annual renewals, but do not

require that the permit be used in order for it to be renewed. The

potential and rationale for requiring participation in the lobster

fishery as a requirement to renewal is currently being evaluated

through an advance notice of proposed rulemaking (64 FR 47756).

Comment 14: Fifteen commenters supported the use of historic

participation and historic trap allocations when determining where a

lobsterman is allowed to fish and how much trap gear an individual may

have in the water at any one time.

Response: Industry-wide evaluation of lobster management area plans

and management alternatives, including historic participation, is being

coordinated through the Commission's adaptive management procedures.

See Response for Comment 2.

Comment 15: Two hundred and three commenters supported

implementation of a management plan for the offshore area proposed by

the Atlantic Offshore Lobstermen's Association (AOLA).

Response: A primary component of the AOLA plan involves a capping

of fishing effort based upon historic participation in the Area 3

fishery. See response to Comment 2.

Comment 16: Five commenters stated that the expansion of the

offshore lobster fishery in the past 10 to 15 years represents a shift

in traditional fishing practices of the industry and should not be the

basis for higher trap allocations.

Response: A higher trap limit in the offshore EEZ (Area 3) is based

upon the Commission's recommendations and the historical character and

economics of that fishery sector. Although not always the case, vessels

in excess of 50 feet (15.24 meters) are required to prosecute the

offshore fishery. Operating expenses are generally higher for these

larger boats. Generally, it has also been necessary for these vessels

to fish a greater number of lobster traps in efforts to increase and

maintain harvest levels to offset the higher operational costs, as well

as to adequately ensure effective fishing operations offshore.

Therefore, in an attempt to achieve parity with inshore vessels in

terms of impacts from reduction in trap limits, a higher trap limit is

justified.

Comment 17: Sixty-two commenters supported the coast-wide

implementation of a maximum carapace size limit, varying from 4\1/4\

(11.43 cm) to 5\1/2\ inches (13.97 cm), for American lobster. Several

of the commenters identified the benefit of maintaining a broodstock of

large, prolific, female egg-bearing lobsters, which also have more

viable and healthier eggs than lobsters at the current minimum legal

size of 3\1/4\ inches (8.26 cm).

Response: This rule implements a 5-inch (12.7 cm) maximum size, as

recommended in Amendment 3 of the Commission's American Lobster ISFMP

for the Area 1 (Gulf of Maine) lobster management area, in part, to

maintain a long standing management measure in this fishing region.

NMFS agrees that the implementation of a maximum size limit has benefit

to the rebuilding of lobster stocks, but this benefit at the current

time is limited, due to the paucity of larger lobsters since most

lobsters are harvested before they become sexually mature. NMFS has

determined that the uncertain benefits of the maximum size limit in

areas other than Area 1 are outweighed by the costs of fishermen

adjusting to such a measure. Nevertheless, the measure has strong

support in the Gulf of Maine fishery as an area-specific regulation,

and has been in place in Maine state waters for a number of years. On

balance, therefore, since the maximum size limit is not a new measure

for many fishermen, continuing the status quo provides some

conservation benefit without introducing new management measures.

Comment 18: Four commenters opposed the coast-wide implementation

of a maximum carapace size limit of 5 inches (12.7cm) for American

lobster. One commenter objected, identifying the high percentage of

larger lobsters its members harvest and the adverse economic impact of

a maximum gauge size would have on its members. Another commenter

identified the need for ``trophy lobsters'' by its members and objected

to implementation of a maximum carapace size limit restriction on the

dive industry.

Response: A maximum size requirement is being implemented only in

Area 1 (Gulf of Maine), as recommended in the ISFMP.

Comment 19: Three commenters expressed general concern about the

continuing buildup in the number of traps fished by individual

fishermen and the resulting increase in fishing effort on the lobster

resource. Commenters stated that the practice of setting traps to stake

out or claim productive fishing areas is becoming more common, and

this, in turn, forces all other lobstermen to increase their traps to

hold on to their existing fishing grounds.

Response: Concern regarding increasing fishing effort in the

American lobster fishery was noted in the Commission's American lobster

ISFMP and the Federal Draft Environmental Impact Statement and

Regulatory Impact Review (DEIS/RIR). Measures under this final rule cap

fishing effort in both the nearshore and offshore EEZ. Further

restrictions on fishing effort may be evaluated under the ISFMP

provisions in future years in order to achieve stock rebuilding

objectives for the American lobster resource.

Comment 20: Fifty-two commenters supported a ban on the harvest of

American lobster by non-trap fishing gear (otter trawls, dredges,

gillnets, diving).

Response: EEZ management measures continue a newly implemented

(March 1998) landing limit of 100 lobsters (or parts thereof) per day,

up to a maximum of 500 lobsters (or parts thereof) per trip of 5 or

more days using non-trap methods. This possession limit allows for a

legitimate bycatch of lobsters by non-trap gear, but creates a

disincentive to target lobsters, thereby eliminating the potential for

an unpredictable increase in effort by fishing vessels that are being

severely restricted in other fisheries. Under this measure, historical

levels of harvest by the non-trap fishery are not anticipated to be

substantively impacted, resulting in a no-net decrease in revenues for

approximately 76 percent of participants in this fishery.

[[Page 68234]]

On the basis of information available to NMFS, additional restrictions

on the non-trap fishing sector, which accounts for approximately 2.2

percent of total annual lobster landings, are not warranted at this

time.

Comment 21: One commenter stated that the proposed Federal

regulations have failed to define a recreational dive vessel, one that

is not a charter boat.

Response: The definition for ``recreational fishing vessel'' has

been clarified in the regulations to exclude ``commercial'' dive

vessels. A commercial dive vessel means any vessel carrying divers for

a per capita fee, a charter fee, or any other type of fee.

Comment 22: One commenter sought clarification on whether the

restricted gear areas apply to the sport diving community.

Response: Restricted gear areas (50 CFR Sec. 697.23) apply only to

lobster traps and mobile gear.

Comment 23: One commenter supported continuation of Federal landing

limits of 100 lobsters (or parts thereof) per day up to a maximum of

500 lobsters (or parts thereof) per trip of 5 days or more on the non-

trap gear sector (otter trawl, dredge, gillnet, divers).

Response: This restriction will be continued in the current

regulations.

Comment 24: One commenter sought clarification on whether Federal

landing limits of 100 lobsters per day up to a maximum of 500 lobsters

per trip of 5 days or more would apply to commercial dive vessels or if

commercial dive vessels would be limited to six lobsters per person on

board.

Response: The possession limits for commercial dive vessels is six

or fewer American lobsters per person on board the vessel. See

Sec. 697.7(c)(2)(i)(C).

Comment 25: Twenty-four commenters opposed any management measure

that would result in an increase in the minimum carapace size of 3\1/4\

inches (8.26 cm).

Response: An increase in the minimum carapace size as a fishery

management measure is not currently included in the Federal

regulations.

Comment 26: Forty-one commenters supported an increase in the

minimum legal size for American lobster. Several proposals recommended

gradual incremental carapace increases spread out over multiple years

with the most support centered on four \1/16\ of an inch (0.159 cm)

increases over a 5-year period. Several commenters felt the gauge

increase provided the single most effective conservation benefit to the

lobster resource of any identified management measure.

Response: Proposals to increase the minimum size of American

lobster have been controversial due to potential and/or perceived

economic impacts of marketing a slightly larger and marginally more

expensive lobster. In addition, there has been concern over the

financial impacts of a minimum size increase on those overseas markets

that prefer a smaller-sized lobster. However, NMFS agrees that an

increase in the minimum legal size has the potential to be an effective

management measure in achieving ISFMP stock-rebuilding objectives. The

potential for achieving this benefit is being evaluated for several

lobster management areas by peer review and deliberations among the

respective LCMTs through the Commission's adaptive management

procedures. In response to recommendations contained in the ISFMP, NMFS

has initiated consultations with the Canadian government concerning

coordination of any future gauge size increases in both U.S. and

Canadian waters.

Comment 27: Sixty commenters supported a Federal requirement to v-

notch the tail section of egg-bearing female lobsters throughout the

range of the resource. Several commenters wanted the definition of what

constitutes a v-notched lobster to match the more restrictive Maine

regulations.

Response: A requirement to v-notch lobsters in Federal waters alone

would not be compatible with the ISFMP, and benefits associated with

the mandatory v-notching of lobsters have been disputed. However, NMFS

has accepted the ISFMP recommendation to continue the prohibition on

the possession of V-notched female lobsters in the EEZ. The current

definition of a v-notched lobster conforms with the Commission's

definition. NMFS is open to further refinement of this definition in

consultation with the Commission.

Comment 28: One commenter opposed v-notching the tail section of

egg-bearing female lobsters, expressing concerns about an increased

likelihood of bacterial infections to the cut tail flipper of v-notched

lobsters and questionable conservation benefits of the practice.

Response: See response for Comment 27.

Comment 29: Eight commenters supported a regulation requiring the

owner-operator to be present on board whenever the vessel is fishing.

Response: Such a regulation at this time has not been considered

for management of American lobster because it has not been proposed

under the ISFMP. However, it is open for future consideration through

the ISFMP's adaptive management procedures, and as may be appropriate,

through subsequent Federal rulemaking procedures.

Comment 30: Several commenters supported the need for a per vessel

trap limit of 800 traps in the nearshore area by fishing year 2000.

Response: For fishing year 1999, the trap limit is 1000 per vessel,

and for fishing year 2000, the trap limit is 800 per vessel.

Comment 31: Six commenters did not support the use of trap limits

as a means to end overfishing of lobsters. Commenters indicated that

trap limits would be too difficult to enforce and felt that trap

reductions would force fishermen to fish more frequently due to

economic necessity, which would increase the risk to personal health

and safety.

Response: Enforcement of a trap tag program has been a topic of

concern and discussion throughout the development of the ISFMP. The

Commission's Law Enforcement Committee, comprised of state and Federal

law enforcement representatives, is addressing how best to enforce trap

tag programs, given the importance of this management measure in

reducing lobster fishing mortality and achieving ISFMP stock rebuilding

objectives for American lobster. The impacts of management measures on

fishing practices and the behavior of fishermen are difficult to

predict. However, NMFS believes that most lobster fishermen will abide

by the trap limits, notwithstanding enforceability concerns of the

measures.

Comment 32: Several commenters wrote in support of implementing

maximum size limits on lobster traps as specified in the Commission's

ISFMP and allowing for an exemption process for individuals with traps

that exceed the specified maximum size.

Response: To phase-in the implementation of a maximum size for

American lobster trap gear in the EEZ, the regulations allow a 10-

percent overage to the maximum trap size recommended by the ISFMP until

May 1, 2003, at which time the maximum trap size will be compatible

with the recommendations in the Commissions ISFMP. This phase-in will

help minimize economic burdens on lobstermen who currently use larger

traps.

Comment 33: Two commenters objected to the implementation of a trap

tag program for Federal permit holders, and identified the measure as

an unfunded Federal requirement that will be expensive to comply with.

[[Page 68235]]

Response: NMFS believes that a trap tag program is an essential

component of the American Lobster ISFMP to help ensure enforceability

of trap limits in both state and Federal waters throughout the range of

the American lobster.

Comment 34: Fifteen commenters supported the implementation of a

trap tag program to enforce proposed trap limits on Federal permit

holders, but stressed the need to implement the requirement in

coordination with the Commission. Commenters also stated that NMFS

should recognize state tagging programs and require only one tag per

trap to avoid duplication.

Response: Implementation of some area management measures, such as

trap limits, may initially result in duplication and/or differences

between state and Federal regulations on a lobster management area by

area basis. NMFS, working with the Commission, will consider ways to

streamline and jointly administer such regulations with cooperating

states through appropriate formal agreements.

Comment 35: One commenter felt the current moratorium on the

issuance of new permits in Federal waters should be eased by allowing a

limited number of new permits for young people in the fishery.

Response: NMFS believes that this would be counter to the

objectives of the moratorium and the ISFMP goals during the American

lobster stock rebuilding period.

Comment 36: Thirty commenters supported increasing the minimum size

of required rectangular escape vents from 1\3/4\ inches (4.45 cm) by

5\3/4\ inches (14.61 cm) up to 1\15/16\ inches (4.92 cm) by 5\3/4\

inches (14.61 cm). A complementary circular vent size increase

providing equivalent conservation was also supported.

Response: Federal regulations will implement increased sizes of

escape vents for all lobster traps deployed or possessed in the EEZ, or

deployed, or possessed on or from a vessel issued a Federal limited

access lobster permit. The specifications for escape vents are: a

rectangular portal with an unobstructed opening not less than 1\15/16\

inches (4.92 cm) by 5\3/4\ inches (14.61 cm) or two circular portals

with unobstructed openings not less than 2\7/16\ inches (6.19 cm) in

diameter.

Comment 37: Twenty-six commenters objected to an increase in the

minimum size of required rectangular escape vents, arguing that the

increased vent size would allow legal lobsters to escape from the trap.

Response: The implementation of an increased vent size, as

recommended in the ISFMP, is a necessary component of measures to

rebuild stocks of American lobster, i.e., to help ensure the escapement

of sub-legal size lobsters.

Comment 38: Fourteen commenters stated that NMFS should implement

measures, including a control date, which would maintain the current

structure of the industry and prevent vessels from shifting from non-

trap gear to trap gear.

Response: The potential for a shift in effort from non-trap gear to

trap gear is difficult to predict based on information before the

agency at this time. The design and rationale of measures to address

this potential, given this lack of information, is not possible without

a more comprehensive evaluation of this concern. NMFS will consider

public comments on potential limited access through the Advance Notice

of Proposed Rulemaking that was published on September 1, 1999 (64 FR

47756).

Comment 39: One commenter supported the implementation of a

prohibition on spearing lobsters.

Response: This prohibition is included in the final rule.

Comment 40: Several commenters objected to the boundary line

between the Area 1 and Area 3 lobster management areas that occurs

farther offshore from the line approved under the American Lobster FMP.

Response: Designation of the boundary line as currently defined

reflects the current consensus, in collaboration with the lobster

industry, as referenced in Amendment 3 to the American Lobster ISFMP.

Comment 41: Two individuals supported the use of seasonal closures

to all lobster fishing as a management measure to end overfishing of

lobster and allow for better enforcement of proposed Federal trap

limits.

Response: Seasonal closures as a management approach have not been

evaluated under the ISFMP. Such closures may be, however, appropriate

for public review and consideration through deliberations of the LCMTs.

Comment 42: Six commenters proposed that the entire Gulf of Maine

north of 42 deg. should be one management area, primarily to ensure

enforcement of the 5 inch (12.7 cm) maximum carapace size prohibition

in the offshore areas of the Gulf of Maine.

Response: This suggestion would not be compatible with the lobster

area designations, and associated boundary lines, recommended by the

Commission and its member states under Amendment 3 to the ISFMP. The

waters north of 42 deg. encompass separated portions of Lobster

Management Area 1, the Outer Cape Management Area, and Lobster

Management Area 3.

Comment 43: Six commenters expressed concern that restrictive trap

limits and trap reductions in Federal waters would result in a shift of

effort to state waters with less restrictive regulations.

Response: The trap limits in Federal waters for fishing years 1999

and 2000 are similar to the trap limits for state waters in the Gulf of

Maine and southern New England, as recommended in the ISFMP. There will

be an annual adjustment of additional or different management measures

for Federal waters which may include, but not be limited to, continued

reductions in fishing effort and/or other management area-specific

measures as may be recommended by the Commission to end overfishing and

rebuild stock of American lobster. The behavior of fishermen and

associated fishing practices, which may occur due to differing

management measures in state and Federal waters, are difficult to

predict. The potential impacts if they occur can be addressed through

the ISFMP's adaptive management provisions, and adjustments to EEZ

regulations for American lobster can be accomplished through Federal

rulemaking procedures.

Comment 44: One commenter felt that the entire offshore management

area 3 should be closed to the harvest of American lobster to protect

the population of large lobsters which may replenish the nearshore

areas with larval and juvenile lobsters.

Response: NMFS is aware of no compelling information which would

justify closure of the Area 3 fishery to attain ISFMP objectives. In

the absence of this information, such an action would not be based on

the best scientific information available and would not be fair and

equitable to the offshore EEZ industry sector. Geographical and

seasonal closures of management areas or portions thereof, are a

possible regulatory measure which may be potentially considered under

the adaptive management provisions of the ISFMP.

Comment 45: One commenter identified the need to prevent or reduce

mortality on softshell lobsters, lobsters which have just molted or

shed their shell.

Response: Although NMFS agrees that it is important to protect

softshell lobster, specific regulations for their protection have not

been proposed under the ISFMP. Appropriate management measures, in

consultation with the LCMTs, can be addressed during future years of

the American

[[Page 68236]]

lobster stock rebuilding period through the ISFMP adaptive management

provisions.

Comment 46: One commenter supported implementation of lobster

management area lines in Federal waters, as specified in the

Commission's lobster ISFMP Amendment 3.

Response: The final rule implements the lobster management areas as

specified in Amendment 3 of the ISFMP.

Comment 47: Twenty-five commenters expressed concern that the trap

limits specified in this final rule could actually result in an

increase in the number of traps fished. Commenters identified concerns

over allowing permit holders currently fishing less than the proposed

limits to increase their traps up to the proposed limit. In addition, a

larger trap limit in Management Area 3 may attract nearshore vessels

into Area 3, thereby increasing effort in the offshore fishery.

Response: The behavior of fishermen and associated changes in

fishing practices may or may not occur, and are difficult to predict.

See response to Comment 45. NMFS questions whether new trap limits in

nearshore and offshore EEZ waters would actually attract vessels to

Area 3, since Federal permit holders fishing only in nearshore waters

have always had this option. Those who have historically fished

nearshore, and now opt to fish both nearshore and offshore, would have

to abide by the stricter nearshore trap limits, regardless of where the

fishing for lobster occurs.

Comment 48: Seven commenters stated that proposed trap limits and

escape vent regulations would create economic hardship for Federal

permit holders who have historically fished primarily for black sea

bass and also hold a Federal lobster permit. Commenters recommended an

exemption or waiver for vessels legally fishing for black sea bass so

the traps could be fitted with nonconforming escape vents and still

retain American lobster.

Response: A previous evaluation of this suggestion in 1986 (51 FR

19210) under the New England Fishery Management Council's FMP concluded

that such a measure is not justified or appropriate for management of

the lobster resource. Such a measure could have the unintended effect

of creating a loophole for Federal permit holders intending to fish

primarily for black sea bass and yet would allow the retention of a

significant harvest of lobsters, and would compromise the

enforceability of the vent size requirement in the lobster fishery.

NMFS concludes that, on balance, the need to maintain the integrity of

the vent size requirement, and its benefits as a lobster management

measure, outweigh the loss resulting from a possible but unquantified

escapement of black sea bass through the required size vents of trap

fishing gear. The final rule minimizes hardship on Federal permit

holders, while initiating necessary additional management measures to

end overfishing and rebuild stocks of American lobster. The rule

requires vessels with a Federal limited access lobster permit fishing

with traps to comply with lobster escape vent requirements specified in

Sec. 697.21(c).

Comment 49: Five commenters stated the need to allow vessels to

fish under their particular area regulations for Area 2 or Area 3 when

fishing in the area defined as the Area 2/3 Overlap.

Response: NMFS has made this change to the regulations.

Comment 50: One commenter asked why replacement tags will be

limited to only 10 percent of the annual trap tag allocation.

Response: The 10-percent initial limitation for replacement tags is

based upon the successful implementation of an identical limitation in

a trap tag program which has been in existence in Maine waters for a

number of years, and upon Commission recommendations for future

implementation of trap tag programs in state and Federal waters. These

recommendations were developed jointly among state, NMFS, industry, and

law enforcement representatives to provide uniformity between state and

Federal programs. The 10-percent initial limitation also serves to

streamline the administrative logistics of a trap tag program in

Federal waters and minimizes potential abuse of trap tag allocations.

The regulations provide for reissuance of lobster tags above the 10-

percent annual tag allocation to accommodate catastrophic loss of tags.

A request for the reissuance of tags above the 10-percent limit must be

submitted in writing to the Regional Administrator and a decision will

be reached in the number of replacement tags, if any, to be issued, on

a case-by-case basis.

Comment 51: One commenter requested that NMFS recognize and respect

the Commission's management tool of conservation equivalency which

allows states to develop management measures which are equal to, or

more restrictive than, what is called for in the ISFMP.

Response: NMFS agrees and acknowledges the provisions for

conservation equivalency in the ISFMP. As conservation equivalent

measures are proposed and approved by the Commission, NMFS will

evaluate such measures and, as appropriate, consider them for

implementation in the EEZ through Federal rulemaking procedures.

Comment 52: One commenter stated that lobstermen fishing

exclusively in state waters should not be limited to Federal trap

limits, even if they hold a Federal lobster permit.

Response: NMFS disagrees. Federal lobster permit holders must abide

by stricter Federal regulations, when such regulations exist, even when

fishing in state waters. This promotes enforceability and consistency

between state and Federal jurisdictions. A vessel fishing exclusively

in state waters has the option of turning in the Federal permit.

Comment 53: One commenter asked for clarification on whether

federally permitted lobster fishermen could sell their lobsters to

federally permitted dealers only or to other dealers, as well.

Response: Current and continuing regulations prohibit the sale of

American lobster by federally permitted vessels to any dealer, unless

the dealer has a valid Federal dealer's permit to purchase, possess, or

receive for a commercial purpose, American lobster.

Comment 54: Several commenters stated that NMFS should implement

horsepower and vessel length restrictions that have been implemented in

other Federal fisheries to curb an increase in fishing effort in the

offshore fishery.

Response: Although such restrictions could provide a disincentive

for inshore vessels to participate in the offshore EEZ fishery, the

lobster fishery has historically, and continues to be, primarily an

inshore fishery. Horsepower and vessel length restrictions however,

have recently been recommended by the ASMFC for the offshore fishery,

and may be evaluated through future Federal rulemaking procedures.

Comment 55: One commenter asked for clarification on several

aspects of the Federal regulations (Sec. 697.12) concerning at-sea sea

sampler/observer coverage; specifically, can a lobster vessel continue

to fish once notified that the vessel has been selected to take a sea

sampler/observer; does the sea sampler/observer provide his/her own

liability insurance; and does the sea sampler/observer provide his/her

safety equipment such as the survival suit?

Response: Once a vessel is requested to carry a NMFS-approved area

sea sampler/observer, that vessel may not engage in any lobster fishing

operations unless a sea sampler/observer is on board, or until NMFS

waives the

[[Page 68237]]

requirement. It would be the responsibility of the vessel owner to

arrange for and facilitate sea sampler/observer placement. In similar

situations for other fisheries, NMFS has helped arrange or provided

guidance regarding liability coverage and access to survival gear. See

the regulations at 50 CFR 600.746.

Comment 56: Several commenters asked NMFS to specify more clearly

the ghost panel requirement, since no trap is made entirely of wood.

Response: The requirements relating to a ghost panel for lobster

traps not constructed entirely of wood have been clarified and are

specified in Sec. 697.21(d).

Comment 57: One commenter noted that the approved Area 1 line

heading west does not hit land at the northernmost part of Cape Cod, MA

and requested NMFS look closely at this line and work with the

Commission to correct this error.

Response: This oversight was acknowledged during public hearings

relating to proposed addendum 1 to the ISFMP. Accordingly, this final

rule changes the Area 1 line to reflect the correction proposed by the

Commission.

Comment 58: One commenter opposed the proposed Federal requirement

to display lobsters traps for an on-shore count, upon request by an

authorized officer, to verify the number of lobster traps being fished

in compliance with limits on lobster trap allocations.

Response: NMFS agrees, and concludes that the proposed regulation

is burdensome and ineffective for the intended purpose of ensuring

compliance with the trap limit requirement, and, therefore, has deleted

the provision.

Comment 59: Several commenters opposed the wording requiring

notification of lost trap tags as not practical, and stated that NMFS

should reconsider this provision.

Response: NMFS has reconsidered the logistics requiring

notification of lost tags, and has increased the notification from 24

hours to ``as soon as feasible, but not more than 7 days after tags

have been discovered lost.'' This notification may be made by letter or

fax to the Regional Administrator.

Comment 60: Seven commenters requested that NMFS extend the comment

period to allow adequate time to review and respond to measures

described in the proposed Federal rule.

Response: NMFS extended the public comment period from February 10,

1999, to February 26, 1999. A second request to further extend this

period through March 15, 1999, was not approved, since the February 26

extension was determined to afford adequate time for the public to

provide comments on the proposed rule.

Comment 61: One commenter requested NMFS review the coordinates

identifying points Q and R which delineate the boundary for Area 6 in

Sec. 697.31, which describe the lobster management areas. The commenter

stated that these coordinates have been transposed by the Commission

and in the proposed Federal rule.

Response: NMFS has made this correction for both Area 2 and Area 6.

Changes From the Proposed Rule

Changes were made to several sections of the proposed rule to

clarify the measures, respond to public comments, and to ensure

consistency with other fishery regulations. Changes were made as

follows:

In Sec. 697.2, the definition of ``dealer'' was added.

In Sec. 697.2, the definition of ``Dive boat'' was modified to add

the word ``commercial'' and the word ``boat'' was changed to

``vessel''. The intent of this modification is to clarify and

differentiate any vessel carrying divers for a per capita fee, a

charter fee, or any other fee, from other recreational fishing vessels

where any lobsters taken are not intended to be, or are not, traded,

bartered, or sold.

In Sec. 697.2, the definition of ``recreational fishing'' was

added.

In Sec. 697.2, the definition of ``recreational fishing vessel''

was added.

In Sec. 697.2, the definition of ``scrubbing'' was removed. The

reference to the definition occurred in Sec. 697.20 ``Size, harvesting

and landing requirements'' in paragraph (e) which has been more clearly

described as ``Removal of eggs'', eliminating the need to define the

word ``scrubbing'.

In Sec. 697.2, the definition of ``trap'' was revised to include

the sentence ``Red crab fishing gear, fished deeper than 200 fathoms

(365.8 m), is gear deemed not to be a trap for the purposes of this

part, and is not subject to the provisions of this part.''. The

exemption from lobster regulations for red crab fishing gear is in

existing regulations and was added because it was inadvertently omitted

in the proposed rule.

In Sec. 697.4, paragraph (a)(1), the text was revised to more

clearly indicate that vessels currently holding a limited access

American lobster permit issued under Sec. 649.4 do not need to renew

their existing permit upon transfer of management authority from the

Magnuson-Stevens Act to the ACFCMA.

In Sec. 697.4, paragraph (a)(3), the text regarding change of

ownership was revised by adding the phrase ``and management area

designation, when required'' to clearly indicate that lobster

management area designations are presumed to transfer with the vessel

whenever it is bought, sold, or otherwise transferred, unless there is

written agreement, signed by the transferor/seller and transferee/

buyer, or other credible written evidence, verifying that the

transferor/seller is retaining the vessel's fishing and permit history

for the purposes of replacing the vessel.

In Sec. 697.4, paragraph (a)(7), was redesignated as (a)(7) and the

text was simplified. Paragraph (a)(7) was expanded to more clearly

indicate the date of implementation for the management area designation

requirement is specified as May 1, 2000, and now includes text on the

management area designation requirements previously located at

Sec. 697.32(a). See the text describing additional Sec. 697.32

revisions located further along in this section.

In Sec. 697.4, paragraph (c), the phrase ``lobster management area

designation, as specified in Sec. 697.18, the vessel will fish if

fishing with traps capable of catching American lobster'' was added to

the vessel permit requirements, to incorporate the requirement to

declare the lobster management area(s) the vessel will specify, as part

of the annual permit renewal process.

In Sec. 697.4, paragraph (d) was added to consolidate and clarify

the trap tag information requirements for vessels fishing with traps,

previously located at Sec. 697.34(a).

In Sec. 697.5, paragraphs (d), (e), (f), and (k) were revised to

eliminate a referral to see similar text found in Sec. 697.4 and, in

place of the referral, text was added to specifically apply to

requirements for operator permits.

In Sec. 697.6, paragraphs (b), (c), (r), (i), (j), (k), and (m)

were revised to eliminate a referral to see similar text found in

Sec. 697.4 and Sec. 697.5 and, in place of the referral, text was added

to specifically apply to requirements for dealer permits.

In Sec. 697.7, paragraphs (c), (d), and (e) containing all lobster

prohibitions and presumptions were revised and consolidated under

paragraph (c) for clarity. Paragraph (c)(1) now contains prohibitions

previously identified as (c), paragraph (c)(2) now contains

prohibitions previously identified as (e), and paragraph (c)(3) now

contains prohibitions previously identified as (d) in the proposed

rule. Paragraph (d) now

[[Page 68238]]

contains prohibitions for Atlantic sturgeon.

In Sec. 697.7, paragraph (c), redesignated as (c)(1), the phrase

``or a vessel or person holding a valid State of Maine American lobster

permit or license and fishing under the provisions of and under the

areas designated in Sec. 697.24 to do any of the following:'' is a

continuation of existing regulations inadvertently omitted from the

proposed rule text and was added back to the prohibitions. On October

11, 1996, the Sustainable Fisheries Act (SFA) was signed into law and

amended, among other statutes, the ACFCMA (16 U.S.C. 5101 et seq.) to

allow fishing for lobster by vessels issued Maine State American

lobster permits in designated areas of the EEZ. These areas are often

referred to as Maine pocket waters. The SFA provides that any person

holding a valid permit issued by the State of Maine may engage in

lobster fishing in these pocket waters, if such fishing is in

accordance with all other applicable Federal and state regulations.

These pocket waters are small areas of the EEZ that lie between two

areas of State waters, created by islands near the coast of Maine.

In Sec. 697.7, paragraph (c)(1)(vii) was added to the Prohibitions

section to make it unlawful for any person owning or operating a vessel

issued a Federal limited access American lobster permit under

Sec. 697.4 or a vessel or person holding a valid State of Maine

American lobster permit or license and fishing under the provisions of

and under the areas designated in Sec. 697.24 to possess, deploy, fish

with, haul, harvest lobster from, or carry aboard a vessel trap gear in

excess of the trap limits specified in Sec. 697.19. This management

requirement was identified under management measures in the Proposed

Rule, but was inadvertently omitted from the prohibition section at

that time.

In Sec. 697.7, paragraph (c)(1) (xix) and (xx) were added to the

Prohibitions section to make it unlawful for any person owning or

operating a vessel issued a Federal limited access American lobster

permit under Sec. 697.4 or a vessel or person holding a valid State of

Maine American lobster permit or license and fishing under the

provisions of and under the areas designated in Sec. 697.24 to refuse

or fail to carry a sea sampler/observer if requested to do so by the

Regional Administrator, or to fail to provide a sea sampler/observer

with required food, accommodations, access, and assistance, as

specified in Sec. 697.12. This management requirement was identified

under management measures in the proposed rule, but was inadvertently

omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(1)(xxi) was added to the prohibitions

section to make it unlawful to for any person owning or operating a

vessel issued a Federal limited access American lobster permit under

Sec. 697.4 or a vessel or person holding a valid State of Maine

American lobster permit or license and fishing under the provisions of

and under the areas designated in Sec. 697.24 to violate any terms of a

letter authorizing exempted fishing pursuant to Sec. 697.22 or to fail

to keep such letter aboard the vessel during the time period of the

exempted fishing. This management requirement was identified under

management measures in the proposed rule, but was inadvertently omitted

from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(1)(xxii) was added to the Prohibitions

section to make it unlawful for any person owning or operating a vessel

issued a Federal limited access American lobster permit under

Sec. 697.4 or a vessel or person holding a valid State of Maine

American lobster permit or license and fishing under the provisions of

and under the areas designated in Sec. 697.24 to possess, deploy, fish

with, haul, harvest lobster from, or carry aboard a vessel any trap

gear on a fishing trip in the EEZ from a vessel that fishes for, takes,

catches, or harvests lobster by a method other than traps. This

management requirement was identified under management measures in the

Proposed Rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(1)(xxiii) was added to the

Prohibitions section to make it unlawful for any person owning or

operating a vessel issued a Federal limited access American lobster

permit under Sec. 697.4 or a vessel or person holding a valid State of

Maine American lobster permit or license and fishing under the

provisions of and under the areas designated in Sec. 697.24 to fish

for, take, catch, or harvest lobster on a fishing trip in or from the

EEZ by a method other than traps, in excess of 100 lobsters (or parts

thereof) for each lobster day-at-sea or part of a lobster day-at-sea,

up to a maximum of 500 lobsters (or parts thereof) for any one trip

unless otherwise restricted by Sec. 648.80(a)(3)(i), (a)(4)(i)(A),

(a)(8)(i), (a)(9)(i)(D), (a)(12)(i)(A), (a)(13)(i)(A), (b)(3)(ii) or

Sec. 697.7(c)(2)(i)(C) of this chapter. This management requirement was

identified under management measures in the proposed rule, but was

inadvertently omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(1)(xxiv) was added to the prohibitions

section to make it unlawful for any person owning or operating a vessel

issued a Federal limited access American lobster permit under

Sec. 697.4 or a vessel or person holding a valid State of Maine

American lobster permit or license and fishing under the provisions of

and under the areas designated in Sec. 697.24 to possess, retain on

board, or land lobster by a vessel with any non-trap gear on board

capable of catching lobsters, in excess of 100 lobsters (or parts

thereof) for each lobster day-at-sea or part of a lobster day-at-sea,

up to a maximum of 500 lobsters (or parts thereof) for any one trip

unless otherwise restricted by Sec. 648.80(a)(3)(i), (a)(4)(i)(A),

(a)(8)(i), (a)(9)(i)(D), (a)(12)(i)(A), (a)(13)(i)(A), (b)(3)(ii) or

Sec. 697.7(c)(2)(i)(C) of this chapter. This management requirement was

identified under management measures in the proposed rule, but was

inadvertently omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(1)(xxv) was added to the prohibitions

section to make it unlawful for any person owning or operating a vessel

issued a Federal limited access American lobster permit under

Sec. 697.4 or a vessel or person holding a valid State of Maine

American lobster permit or license and fishing under the provisions of

and under the areas designated in Sec. 697.24 to transfer or attempt to

transfer American lobster from one vessel to another vessel. This

management requirement was identified under management measures in the

proposed rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(1)(xxvi) was added to the prohibitions

section to make it unlawful, beginning May 1, 2000, for any person

owning or operating a vessel issued a Federal limited access American

lobster permit under Sec. 697.4 or a vessel or person holding a valid

State of Maine American lobster permit or license and fishing under the

provisions of and under the areas designated in Sec. 697.24 to possess,

deploy, fish with, haul, harvest lobster from, or carry aboard a vessel

any trap gear in or from the management areas specified in Sec. 697.18,

unless such fishing vessel has been issued a valid management area

designation certificate or valid limited access American lobster permit

specifying such management area(s) as required under Sec. 697.4(a)(7).

This management requirement was identified under management measures in

the proposed rule, but was inadvertently omitted from the prohibition

section at that time.

[[Page 68239]]

In Sec. 697.7, paragraph (c)(2), redesignated as (c)(1)(ii), the

phrase ``up to the time when a dealer receives or possesses American

lobster for a commercial purpose,'' was added to clarify that the

prohibition against possession of lobster parts in violation of the

mutilation standards applies up to the point of possession by a

licensed dealer.

In Sec. 697.7, paragraph (c)(2)(vi) was added to the prohibitions

section to make it unlawful for any person to assault, resist, oppose,

impede, harass, intimidate, or interfere with or bar by command,

impediment, threat, or coercion any NMFS-approved sea sampler/observer

aboard a vessel conducting his or her duties aboard a vessel, or any

authorized officer conducting any search, inspection, investigation, or

seizure in connection with enforcement of this part, or any official

designee of the Regional Administrator conducting his or her duties.

This management requirement was identified under management measures in

the proposed rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(2)(vii) was added to the prohibitions

section to make it unlawful for any person to refuse to carry a sea

sampler/observer if requested to do so by the Regional Administrator.

This management requirement was identified under management measures in

the proposed rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(2)(viii) was added to the prohibitions

section to make it unlawful for any person to refuse reasonable

assistance to either a NMFS-approved sea sampler/observer conducting

his or her duties aboard a vessel. This management requirement was

identified under management measures in the proposed rule, but was

inadvertently omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(2)(xvi) was added to the prohibitions

section to make it unlawful for any person to violate any terms of a

letter authorizing exempted fishing pursuant to Sec. 697.22 or to fail

to keep such letter aboard the vessel during the time period of the

exempted fishing. This management requirement was identified under

management measures in the proposed rule, but was inadvertently omitted

from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(2)(xvii) was added to the prohibitions

section to make it unlawful for any person to possess, deploy, fish

with, haul, harvest lobster from, or carry aboard a vessel any trap

gear on a fishing trip in the EEZ from a vessel that fishes for, takes,

catches, or harvests lobster by a method other than traps. This

management requirement was identified under management measures in the

proposed rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(2)(xviii) was added to the

prohibitions section to make it unlawful for any person to fish for,

take, catch, or harvest lobster on a fishing trip in or from the EEZ by

a method other than traps, in excess of 100 lobsters (or parts thereof)

for each lobster day-at-sea or part of a lobster day-at-sea, up to a

maximum of 500 lobsters (or parts thereof) for any one trip unless

otherwise restricted by Sec. 648.80(a)(3)(i), (a)(4)(i)(A), (a)(8)(i),

(a)(9)(i)(D), (a)(12)(i)(A), (a)(13)(i)(A), (b)(3)(ii) or

Sec. 697.7(c)(2)(i)(C) of this chapter. This management requirement was

identified under management measures in the proposed rule, but was

inadvertently omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(2)(xix) was added to the prohibitions

section to make it unlawful for any person to possess, retain on board,

or land lobster by a vessel with any non-trap gear on board capable of

catching lobsters, in excess of 100 lobsters (or parts thereof) for

each lobster day-at-sea or part of a lobster day-at-sea, up to a

maximum of 500 lobsters (or parts thereof) for any one trip unless

otherwise restricted by Sec. 648.80(a)(3)(i), (a)(4)(i)(A), (a)(8)(i),

(a)(9)(i)(D), (a)(12)(i)(A), (a)(13)(i)(A), (b)(3)(ii) or

Sec. 697.7(c)(2)(i)(C) of this chapter. This management requirement was

identified under management measures in the proposed rule, but was

inadvertently omitted from the prohibition section at that time.

In Sec. 697.7, paragraph (c)(2)(xx) was added to the prohibitions

section to make it unlawful for any person to transfer or attempt to

transfer American lobster from one vessel to another vessel. This

management requirement was identified under management measures in the

proposed rule, but was inadvertently omitted from the prohibition

section at that time.

In Sec. 697.7, paragraph (c)(7), redesignated as (c)(1)(viii), the

word ``trap'' was added to clarify NMFS' intent to exclude non-trap

gear from the trap gear requirements to mark, vent, tag, panel, and

limit the maximum trap size.

In Sec. 697.7, paragraphs (c)(1)(ix) through (c)(1)(xiii) were

added to address the lag in implementation of the lobster trap tag

requirements, which will also replace the existing gear marking

requirements, effective May 1, 2000.

In Sec. 697.7, paragraph (e)(1), redesignated as (c)(2)(i),

paragraph (E) was added. This text, which addresses the regulations

relating to the areas often referred to as Maine pocket waters, was

inadvertently omitted from the proposed rule text, and is a

continuation of existing regulations.

In Sec. 697.7, paragraph (e)(2), redesignated as (c)(2)(ii), the

phrase ``or unless the vessel or person holds a valid State of Maine

American lobster permit or license and is fishing under the provisions

of and in the areas designated in Sec. 697.24.'' was added. This text,

which addresses the regulations relating to the areas often referred to

as Maine pocket waters, was inadvertently omitted from the proposed

rule text, and is a continuation of existing regulations.

In Sec. 697.7, paragraph (e)(5), redesignated as (c)(2)(v), the

phrase ``or one holding or owned or operated by one holding a valid

State of Maine American lobster permit or license and fishing under the

provisions of and in the areas designated in Sec. 697.24,'' was added.

This text, which addresses the regulations relating to the areas often

referred to as Maine pocket waters, was inadvertently omitted from the

proposed rule text, and is a continuation of existing regulations.

In Sec. 697.7, paragraph (d)(1), redesignated as (c)(3)(i), the

phrase ``or parts thereof'' was added to the first sentence to clarify

the intent to include lobster parts as well as whole lobsters taken in

violation of Federal regulations. The word ``whole'' was added to the

first sentence to clarify dealer possession requirements. The words

``or foreign'' was added to the second sentence to clarify that

lobsters harvested by non-U.S. vessels in a foreign country are

exempted from the identified Federal regulations.

In Sec. 697.7, paragraph (d)(2), redesignated as (c)(3)(ii), in the

first sentence, the phrase ``or parts thereof possessed at or prior to

the time when the parts are received by a dealer'' was added to clarify

that possession of parts prior to possession by a dealer is prohibited.

In the same sentence, the phrase ``or parts thereof'' was added to

clarify that possession of parts prior to possession by a dealer is

prohibited.

In Sec. 697.8, paragraph (d) was revised by adding the phrase

``over 25 ft (7.6 m) in registered length, fishing in the EEZ and'' to

make the non-permanent marking requirements applicable to vessels

carrying recreational fishing parties on a per capita basis or by

charter, compatible with the vessel marking requirements for each

vessel

[[Page 68240]]

issued a limited access American lobster permit.

In Sec. 697.9, paragraph (b) was added to notify permit holders, as

applicable, to be alert for communication conveying enforcement

instructions.

In Sec. 697.20 paragraphs (c)(1) and (c)(2), the phrase ``Subject

to the rebuttable presumption in Sec. 697.7(d),'' was added to clarify

exemptions to the mutilation requirements if it can be shown the

American lobsters were harvested by a vessel without a Federal limited

access American lobster permit that fishes for American lobsters

exclusively in state waters; or are from a charter, head, or commercial

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; or are from a recreational fishing vessel.

In Sec. 697.20 paragraphs (c)(1) and (c)(2), the phrase ``prior to

offloading from a vessel'' was removed, and the phrase ``before, or at

the time of landing'' and the phrase ``up to the time when a dealer

first receives or possesses American lobster'' were added to clarify

the prohibition against mutilation applies on board the vessel and up

to the point of purchase by a dealer.

In Sec. 697.20, paragraph (e), the title was revised by removing

the word ``scrubbing'' and inserting the phase ``Removal of eggs'' to

more clearly describe the contents of the paragraph. In addition, the

text in paragraph (e) was revised and clarified by adding the text

``including, but not limited to the forcible removal, or removal by

chemicals, or other substances or liquids''.

In Sec. 697.21, paragraphs (a) and (c) were combined and

redesignated as Sec. 697.21(a), to allow the continuation of the

current Federal gear marking requirements until the trap tag marking

requirement is implemented on May, 1, 2000.

In Sec. 697.21, paragraph (b), the text was re-labeled from ``Gear

configuration'' to ``Deployment and gear configuration'' and the text

was rewritten to refer to the gear areas identified in paragraph

(b)(4). Paragraph (b)(4) of this section was rewritten to identify and

continue the existing gear marking requirements currently in place,

which were inadvertently omitted in the proposed rule.

In Sec. 697.21, paragraphs (d) through (g) were redesignated as

Sec. 697.21, paragraph (c) through (f), because, as described

previously, paragraphs (a) and (c) are combined and redesignated as

Sec. 697.21(a).

In Sec. 697.21, paragraph (e), redesignated as paragraph (d), the

phrase ``excluding heading or parlor twine and the escape vent'' was

added to the introductory sentence to clarify the fact that no lobster

trap is made entirely of wood.

In Sec. 697.21, paragraph (f), redesignated as paragraph (e), the

paragraph was revised to allow for and to describe an exemption period,

extending until April 30, 2003, to the maximum trap size restriction

for vessels currently fishing with traps in excess of the identified

maximum trap size.

In Sec. 697.21(f)(1), redesignated as paragraph (e)(2), the text

was modified to clarify that the larger offshore maximum trap size

applies to vessels who elect to fish only in EEZ Offshore Management

Area 3 or EEZ Offshore Management Area 3 and the Area 2/3 Overlap.

In Sec. 697.21, paragraph (g), redesignated as paragraph (f), the

paragraph was revised to specify that the trap tag requirement will be

implemented beginning on May 1, 2000.

As described previously, Sec. 697.34 was removed and the regulatory

text was redesignated as Sec. 697.7, containing prohibitions and

Sec. 697.19, containing the trap tag measures. The following text

provides specific information on the removal or redesignation of

Sec. 697.34.

Subpart C and section Sec. 697.30 of Subpart C, containing the Egg

Production Rebuilding Schedule and Adaptive Management Adjustments--

Purpose and Scope text, was deleted. Subpart C represented a

continuation of general provisions and lobster management measures

which were more appropriately contained in Subpart A--General

Provisions, and Subpart B--Management Measures. The following text

addresses other sections of Subpart C which were either redesignated as

other sections, or removed in whole or in part to provide the reader

with clearer information on the regulatory text of the lobster

management measures in this final rule.

Section Sec. 697.31, describing the coordinates for the lobster

management areas, was redesignated as Sec. 697.18 to enhance the

readability of the document. In addition, Sec. 697.31 (a)(1) through

(a)(9) was redesignated as Sec. 697.18 (a) through (i) and

Sec. 697.31(b) is removed.

In Sec. 697.31, paragraph (a)(1), redesignated as Sec. 697.18(a),

the narrative at the end of the EEZ Nearshore Management Area 1 was

modified to clarify the description of the boundary line from the Maine

coast along the seaward EEZ boundary back to point A.

In Sec. 697.31, paragraphs (a)(2) and (a)(7), redesignated as

Sec. 697.18 (b) and (g), the point coordinates designated as Q and R,

which help define the EEZ Nearshore Area 2 and Nearshore Area 6 were

revised to correct an error. Point Q was relabeled as point R and point

R was relabeled as point Q.

In Sec. 697.31, paragraph (a)(4), redesignated as Sec. 697.18(d),

the EEZ Offshore Management Area 3 boundary coordinate designated as

point C was modified to be consistent with the EEZ Nearshore Area 1

boundary coordinate designated as point C which follows the Loran C

navigation frequency coordinate 9960-X-25600.

In Sec. 697.31, paragraph (a)(7), redesignated as Sec. 697.18(g),

the title and introductory text were modified by removing the word

``EEZ''. Nearshore Management Area 6 is entirely within state waters

and, as noted during the public comment period, a more accurate

description of Area 6 would not include a reference to the EEZ for this

management area.

In Sec. 697.31, paragraph (a)(1) and (a)(8), redesignated as

Sec. 697.18 (a) and (h), the point coordinates `` G1'' identified as

42 deg.04.25' N. lat. and 70 deg.17.22' W. long., ``G2'' identified as

42 deg.02.84' N. lat. and 70 deg.16.1' W. long., and ``G3'' identified

as 42 deg.03.35' N. lat. and 70 deg.14.2' W. long. were added. The

boundary line separating EEZ Nearshore Management Area 1 and EEZ

Nearshore Outer Cape Lobster Management Area does not come to land at

point G: therefore, the EEZ Nearshore Management Area 1 and EEZ

Nearshore Outer Cape Lobster Management Area are not effectively

separated as intended. This discrepancy was identified during the

public comment period on the proposed rule and was discussed and

addressed by the Commission during development of Addendum 1 to the

ISFMP. To facilitate enforcement of area based management measures, the

three new point coordinates, which are compatible with those proposed

by the Commission in Addendum 1, were added to EEZ Nearshore Management

Area 1 and EEZ Nearshore Outer Cape Lobster Management Area to clearly

delineate and separate these management areas.

In Sec. 697.32, paragraphs (a)(1) through (a)(4) and (a)(9), were

redesignated as Sec. 697.4, paragraph (a)(7)(i) through (a)(7)(v). The

text describes the election of lobster management areas which will

become part of the annual vessel permit renewal process and is more

appropriately included in the vessel permit renewal section,

Sec. 697.4(a)(7).

In Sec. 697.32, paragraphs (a)(5) through (a)(8), were removed

because similar language is more appropriately located in Sec. 697.19,

the section containing

[[Page 68241]]

regulations on trap limits and trap tag requirements for vessels

fishing with traps.

In Sec. 697.32, paragraph (a)(1)(i), redesignated as Sec. 697.4

(a)(7)(i), May 1, 2000, was specified as the date of implementation of

the requirement to have a lobster management area designation

certificate or valid limited access American lobster permit containing

the elected management area designation(s) on board all vessels with a

limited access lobster permit fishing with traps to allow adequate time

for notification, mailing and return of permit holder area designation

election forms prior to implementation of the requirement.

In Sec. 697.33, paragraphs (a) through (d), redesignated as

Sec. 697.19 paragraphs (a) and (b), were extensively rewritten to

remove the mutual exclusion requirement which prohibited vessels

electing any of the nearshore management areas from also electing to

fish in the Offshore Management Area 3. Vessels may elect to fish in

any or all of the lobster management areas, but must fish by the most

restrictive regulations that apply to any of the management areas

elected, regardless of which management area the vessel may currently

be fishing in.

In Sec. 697.33, paragraphs (a) through (d), redesignated as

Sec. 697.19 paragraphs (a) and (b), were rewritten to clarify the

management measure requirements for the Area 2/3 Overlap. All vessels

electing the Area 2/3 Overlap alone, or in addition to any of the

nearshore management areas must abide by the most restrictive

management measures in effect for any of the elected nearshore

management areas while fishing in the Area 2/3 Overlap. All vessels

electing the Area 2/3 Overlap and only the offshore management Area 3

must abide by the management measures in effect for the offshore

management Area 3 while fishing in the Area 2/3 Overlap. All vessels

electing to fish only in the Area 2/3 Overlap must abide by trap and

trap tag allocations requirements applicable to the nearshore

management areas as specified in Sec. 697.19.

The trap limits and other trap management measures contained in

Sec. 697.33 and the trap tag management measures contained in

Sec. 697.34 were combined for reader clarity and are redesignated

Sec. 697.19. Section 697.33, paragraphs (a) through (d), were

consolidated and redesignated as Sec. 697.19, paragraphs (a) and (b),

and describe the trap limits for the EEZ nearshore and offshore lobster

fishery for fishing years 1999 and 2000 and Sec. 697.34, paragraph (b)

was redesignated as Sec. 697.19, paragraph (d)(1), and describes trap

tag administrative procedures.

In Sec. 697.33, paragraphs (a) through (d), were combined and

redesignated as Sec. 697.19, paragraphs (a) and (b), text was added to

specify that the date of implementation of the requirement to have a

lobster management area designation certificate or a permit relating to

area management designations on board all vessels with a limited access

lobster permit fishing with traps is May 1, 2000, to allow adequate

time for notification, mailing and return of permit holder area

designation election forms prior to implementation of the requirement.

In Sec. 697.33, paragraphs (a) through (d), consolidated and

redesignated as Sec. 697.19, paragraphs (a) and (b), were rewritten to

postpone the trap tag requirement until May 1, 2000, following

recommendations received by the Commission, several state agencies and

numerous individuals.

In Sec. 697.33, paragraph (e), requiring an on-shore trap count if

requested by an authorized officer, was deleted as burdensome and

ineffective for the intended purpose of ensuring compliance with the

trap limit requirement.

In Sec. 697.34, redesignated as Sec. 697.19, paragraph (a) was

removed because paragraph (a) described administrative procedures for a

trap tag program as well as possible alternative state tagging

programs. Administrative procedures are not appropriate for inclusion

in the regulatory text describing management measures.

In Sec. 697.34, paragraph (b) was redesignated as Sec. 697.19(d) to

consolidate and clarify both the trap limits and trap tag aspects of

the management measures.

In Sec. 697.34, paragraph (b)(2), redesignated as

Sec. 697.19(d)(2), the phrase ``within 24 hours'' was replaced by the

phrase ``as soon as feasible within 7 days'' and the phrase ``on an

official lobster trap tag replacement order form signed by the permit

holder or authorized representative'' was replaced by ``by letter or

fax to the Regional Administrator''. The notification requirement was

modified and extended to allow a reasonable time period for lobstermen

to notify NMFS concerning requests for replacement of lost tags.

In Sec. 697.34, paragraph (c)(1) was redesignated as Sec. 697.19(c)

to consolidate the trap tag requirement to permanently attach a trap

tag to any lobster trap in Federal waters beginning May 1, 2000, with

other trap tag management measures.

In Sec. 697.34, paragraphs (c)(2) through (c)(5) were redesignated

as Sec. 697.7, paragraphs (c)(1)(ix)(B) through (c)(1)(xiii)(E) to

consolidate trap tag prohibitions for reader clarity.

Section 697.35 was redesignated as Sec. 697.17 to consolidate non-

trap lobster management measures under Subpart B--Management Measures

rather than have management measures under both Subpart B and Subpart

C.

In Sec. 697.35, paragraph (a), redesignanted Sec. 697.17, paragraph

(a), the paragraph was modified to include the non-trap landing

restriction found in Sec. 697.7(d)(1)(iii) to add the more restrictive

regulations which apply to the charter and head boats and commercial

dive vessels which are restricted to six or fewer American lobsters per

person on board the vessel and the lobsters are not intended to be, or

are not, traded, bartered, or sold.

Section 697.24 ``Exempted waters for Maine State American lobster

permits.'' was added. On October 11, 1996, the SFA was signed into law

and amended, among other statutes, the ACFCMA (16 U.S.C. 5101 et seq.)

to allow fishing for lobster by vessels issued Maine State American

lobster permits in designated areas of the EEZ. These areas are often

referred to as Maine pocket waters. The SFA provides that any person

holding a valid permit issued by the State of Maine may engage in

lobster fishing in these pocket waters, if such fishing is in

accordance with all other applicable Federal and State regulations. The

SFA specifications for these areas apparently included an unintentional

line across land which is repeated in these regulations until further

clarification is received from Congress. These pocket waters are small

areas of the EEZ that lie between two areas of state waters, created by

islands near the coast of Maine, and are described in Sec. 697.24. This

section, which contains existing lobster regulations currently in place

was inadvertently omitted in the proposed rule.

Section 697.36 was redesignated Sec. 697.25 in its entirety. As

previously discussed, this change was made to consolidate lobster

management measures under Subpart B--Management Measures, rather than

have management measures under both Subpart B and Subpart C.

NOAA codifies its OMB control numbers for information collection at

15 CFR part 902. Part 902 collects and displays the control numbers

assigned to information collection requirements of NOAA by OMB pursuant

to the Paperwork Reduction Act (PRA). This final rule codifies OMB

control number 0648-0202 for Secs. 697.4 through 697.6

[[Page 68242]]

and Sec. 697.12, OMB control number 0648-0309 for Sec. 697.22, OMB

control number 0648-0350 for Sec. 697.8, and OMB control number 0648-

0351 for Sec. 697.21.

Under NOAA Administrative Order 205-11, dated December 17, 1990,

the Under Secretary for Oceans and Atmosphere has delegated to the

Assistant Administrator for Fisheries, NOAA, the authority to sign

material for publication in the Federal Register.

Classification

Atlantic Coastal Fisheries Cooperative Management Act

Paragraphs (A) and (B) of section 804(b)(1) of the ACFCMA authorize

the Secretary of Commerce to issue regulations in the EEZ that are

compatible with the effective implementation of a coastal fishery

management plan and consistent with the national standards set forth in

section 301 of the Magnuson-Stevens Act. This authority has been

delegated to the Assistant Administrator for Fisheries, NOAA (AA). The

AA has determined that these actions are compatible with the

Commission's American Lobster Interstate Management Plan and consistent

with the national standards of the Magnuson-Stevens Act. Federal action

alone in the EEZ is not likely to stop overfishing, to rebuild lobster

egg production, or to meet Federal management requirements to do so.

Only cooperative state and Federal action will rebuild American lobster

stocks.

Executive Order 12866

This final rule has been determined to be not significant for

purposes of E.O. 12866. Industry revenues were projected to increase

$2.13 million annually. Projected over a 10 year period at a discount

rate of 7.0 percent, the management measures in this rule would exceed

the status quo (current management measures) by $16.09 million in

present value. If states do not implement any fishing mortality rate

reduction initiatives, the expected benefit of implementing the

management measures in this rule in the EEZ only will be greatly

diminished but is still positive. Specifically, an EEZ-only effort

reduction program would result in an annual net gain of $0.18 million.

Projected over 10 years at 7.0 percent, the present value of an EEZ-

only effort reduction program would be $1.22 million. The cost for trap

tags and tag replacement to the inshore and offshore sectors for

complying with the final rule is estimated at $332,900 for the first

year.

Executive Order 13132

This rule does not contain policies with federalism implications

sufficient to warrant preparation of a federalism assessment under E.O.

13132.

Paperwork Reduction Act

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection of information subject to the

requirements of the Paperwork Reduction Act (PRA), unless that

collection of information displays a currently valid Office of

Management and Budget (OMB) control number.

This rule contains collection-of-information requirements subject

to the PRA. The following new collection-of-information requirements

have been approved by OMB. The estimated time per individual response

is shown.

1. Revision of existing gear (trap) marking requirements (1 minute)

has been approved by OMB under control number 0648-0351;

2. Lobster management area designation, request for trap tags, and

preparing payment for trap tags (5 minutes) has been approved by OMB

under control number 0648-0202;

3. Reporting lost trap tags and requesting replacement trap tags (3

minutes) has been approved by OMB under control number 0648-0202;

4. Requests for additional trap tags (2 minutes) has been approved

by OMB under control number 0648-0202; and

5. Extend sea sampler/observer coverage to include the American

lobster fishery (2 minutes) has been approved by OMB under control

number 0648-0202.

The following collection-of-information requirements are being

restated and have been approved by OMB control number 0648-0202 with

the response times per application as shown: vessel permit applications

(30 minutes for a new application, 15 minutes for renewal

applications), confirmations of permit history (30 minutes); operator

permit applications (1 hour); and dealer permit applications (5

minutes).

The following collection-of-information requirement is being

restated and has been approved by OMB under control number 0648-0350:

vessel identification requirements, estimated at 45 minutes per vessel.

The following collection-of-information requirement is referred to

and has been approved by OMB under control number 0648-0309: exempted

fishing, estimated at one hour per vessel.

Send comments regarding these burden estimates or any other aspect

of the data requirements, including suggestions for reducing the

burden, to NMFS (see ADDRESSES) and to the Office of Information and

Regulatory Affairs, OMB (see ADDRESSES).

Endangered Species Act and Marine Mammal Protection Act

A formal section 7 consultation under the Endangered Species Act

was initiated for this rule in a biological opinion by NMFS dated

December 17, 1998. After reviewing the best available information on

the status of endangered and threatened species under NMFS

jurisdiction, the environmental baseline for the action area, the

effects of the action, and the cumulative effects, it is NMFS'

Biological Opinion that the continued operation of the Federal lobster

fishery, with modifications to reduce impacts of entanglement through

the Atlantic Large Whale Take Reduction Plan, is not likely to

jeopardize the continued existence of the northern right whale,

humpback whale, fin whale, blue whale, sperm whale, sei whale,

leatherback sea turtle, and loggerhead sea turtle. In addition, the

changes are not likely to destroy or adversely modify right whale

critical habitat.

Essential Fish Habitat

An Essential Fish Habitat (EFH) consultation was performed on this

action. The management measures for the trap sector that could impact

EFH for species managed under the MSA include: declaration of fishing

area; trap limits; and the maximum trap size. The implementation of

limits on the number and size of traps and areas fished by Federal

permit holders should serve to reduce the effects of fishing on EFH. No

new conservation recommendations were provided, since this action

already minimizes impacts to EFH, to the extent practicable.

For the non-trap sector, the implementation of a landing limit of

100 lobsters (or parts thereof) per day, up to a maximum of 500

lobsters (or parts thereof) per trip of 5 days or longer, effectively

limits landings by the non-trap sector to a bycatch fishery. A

significant portion of lobster landed by non-trap lobster permit

holders is landed by fishermen also holding permits for multispecies;

sea scallop; squid, mackerel, butterfish; scup; black sea bass, and

summer flounder fisheries. Impacts to habitat from each of these

fisheries is managed according to the Magnuson-Stevens Act under the

FMP for each fishery. The appropriate vehicle for fully analyzing these

impacts is

[[Page 68243]]

through the FMPs for the directed fishery rather than the regulations

for the lobster non-trap bycatch fishery, although it can be determined

that these regulations may reduce the amount of time draggers will have

contact with the benthic environment while fishing for lobsters.

National Environmental Policy Act

NMFS prepared a Draft Environmental Impact Statement and Regulatory

Impact Review (DEIS/RIR) for this action; a notice of availability was

published in the Federal Register on March 27, 1998 (63 FR 14922).

Public comments on the DEIS/RIR were addressed, and NMFS prepared a

Final Environmental Impact Statement and Regulatory Impact Review

(FEIS/RIR) following publication of a proposed rule on lobster

management in Federal waters on January 15, 1999 (64 FR 2708). A notice

of availability for the FEIS/RIR was published in the Federal Register

on May 28, 1999 (64 FR 29026). NMFS determined that implementation of

this action is environmentally preferable to the status quo. The FEIS/

RIR demonstrates that, notwithstanding potential, yet unknown, changes

in fishing practices and behavior, this action contains management

measures able to end overfishing and rebuild stocks of American

lobster; protect marine mammals and sea turtles; and provide economic

and social benefits to the lobster industry in the long term. The FEIS/

RIR further emphasizes the importance of concurrent action by the

states during the stock rebuilding period to the realization of these

benefits.

Final Regulatory Flexibility Analysis

In compliance with the Regulatory Flexibility Act, NMFS prepared an

Initial Regulatory Flexibility Analysis (IRFA), supplemented by the

preamble to the proposed rule (64 FR 2708), as well as by further

analysis contained in the FEIS/RIR (64 FR 29026), that describes the

impact this action may have on small entities. The Final Regulatory

Flexibility Analysis (FRFA) consists of the IRFA, public comments and

responses thereto, and the preamble to the proposed rule, the analysis

of impacts and alternatives to this action, and the summary that

follows.

Objectives

The objective of lobster management is to prevent overfishing of

American lobster throughout the species' range and to rebuild lobster

stocks to a level that will produce optimum yield. To accomplish this,

NMFS must ensure that existing lobster conservation measures in federal

waters are maintained and take further action in concert with actions

by the States in coastal waters under their jurisdiction. As documented

in Amendment 5 of the New England Fishery Management Council's American

Lobster FMP (May 1994), the American lobster resource is considered

recruitment overfished when, throughout its range, the fishing

mortality rate (F), given the regulations in place at that time under

the suite of regulatory management measures, results in a reduction in

estimated egg production per recruit to 10 percent or less of a non-

fished population.

Public Comment

Sixty-one public comments and responses are presented under

Comments and Responses.

Estimate of Small Entities

Virtually all participants in the lobster fishery are considered to

be small entities. Consequently, management measures, including all

measures to mitigate impacts, affect small entities only, and all

analyses of such effects are necessarily analyses of effects on small

entities.

As of December, 1997, 3,153 vessel owners held Federal lobster

permits. The majority of these are associated with smaller vessels and

the bulk are identified with Maine or Massachusetts as the primary port

of landing, followed distantly by Rhode Island, and then New Jersey,

New York and New Hampshire. Of these 3,153 vessels, 1,962 also hold at

least one other federal permit. As of December, 1997, there were a

total of 2785 Federal permit holders fishing with traps to harvest

lobsters. Although not always the case, it is generally recognized that

vessels in excess of 50 feet are required to prosecute the offshore

fishery. Based on this distinction, there were 297 trap vessels that

may be involved in the offshore fishery and 2,488 trap vessels that may

fish predominantly in the nearshore zones. An additional 802 non-trap

vessels possessed American lobster permits.

Based on dealer reports, the total value of American lobster landed

by Federal permit holders in 1997 was $23.97 million. This value

represented 10.7 percent of the total value of American lobster ($223.7

million) landed in the Northeast region in 1997. Note that landings by

Federal permit holders can come from a mixture of state waters, and

nearshore/offshore EEZ areas. Revenues by Federal permit holders were

divided among trap and trawl vessels, with trap vessels accounting for

90 percent of the revenues ($21.5 million). Among trap vessels in

excess of 50 feet in overall length, American lobster landings were

valued at $13.95 million in 1997.

A detailed description of the small businesses which may be

impacted by Federal lobster management actions is available and

contained in a FEIS/RIR prepared by NMFS for this rule (see ADDRESSES).

Recordkeeping and Reporting Requirements

Collection-of-information requirements are presented in this final

rule in the Classification section under Paperwork Reduction Act.

According to the data provided, there are a total of 2,785 Federal

permit holders that use traps to harvest American lobster and will have

to comply with both the trap tag and the area designation requirements

of these regulations. The average number of traps fished by these

vessels was 667 and 1,321 by nearshore and offshore vessels,

respectively.

Since management alternatives differ between the non-trap (mobile

gear) and trap (fixed gear) groups, the analysis was performed

separately for each gear group.

The Trap Sector

The action for the trap sector initially cap and then will reduce

fishing effort (gear in the water), in addition to other management

measures. These measures apply to all participants in the trap sector.

Trap Caps, Trap Tags, and Maximum Carapace Size

Two measures that could directly affect revenues are the trap cap

for both the nearshore and offshore EEZ and the maximum carapace in

Area 1. There are a total of 2,785 Federal permit holders fishing with

traps that will have to comply with both the trap regulations and the

maximum carapace in Area 1. The average number of traps fished by these

vessels was 667 and 1,321 by nearshore and offshore vessels,

respectively. For an average nearshore zone vessel fishing 667 traps,

trap tag regulations will require an annual increase in compliance

costs of $247. For an average offshore vessel fishing 1,321 traps, the

annual increase in compliance costs for trap tags will be $515.

The regulations prohibit the taking of lobsters in excess of the

maximum size by anyone fishing with either trap or trawl gear in Area

1. The prohibition also applies to any trap vessel that selects Area 1

no matter where it fishes. Entities that currently fish in Area 1 will

not be able to sell lobsters above the maximum carapace length and will

lose

[[Page 68244]]

a portion of their revenues. Landings data by carapace length are not

available to provide a quantitative estimate of these lost revenues.

However, estimates of the size structure of female lobsters landed in

the Gulf of Maine produced for the stock assessment for American

lobster during June 1993 at the NMFS Northeast Region's Stock

Assessment Workshop No. 16 indicate lobsters in excess of 128 mm

(approximately 5'') comprised 0.06 percent of 1992 landings. Given this

finding, the proportion of total revenues to Area 1 vessels comprised

of lobsters in excess of the maximum size is not likely to be very

high.

NMFS analysis indicates that approximately 30 percent of trap

fishermen will have to reduce the numbers of traps fished. However,

within certain limits, adjustments to days fished, trap hauls, crew,

soak times, and trap configurations may be adopted to at least

partially offset the loss in traps. These adaptive strategies, together

with an anticipated reduction in fishing mortality rates, will likely

result in an eventual increase in catch per unit effort (i.e., catch

per trap hauled). However, given the difference in timing between the

trap reductions and the anticipated longer term increases in catch, it

seems likely that a substantial number of individual entities will

experience reductions in total revenues that exceed 5 percent for at

least some portion of the stock rebuilding schedule. Even if vessels

find ways of maintaining gross revenues, it will likely require

substantial changes in the way in which they organize their business.

Further, as described above, for at least some portion of fishermen

operating in Area 1, additional revenues will be lost from the sale of

lobsters in excess of the proposed maximum carapace length. Therefore,

it appears likely that a substantial number of vessels will experience

a reduction in revenues, and that trap reductions will likely require

significant changes in business operations for a substantial number of

entities.

Maximum Trap Size and Increased Escape Vent

In addition, it is likely that at least some portion of the trap

fishery will bear compliance costs relating to maximum trap size, and

increased escape vent size. These regulations impose a limit on trap

size in terms of volume. The maximum size differs between offshore and

nearshore fishing zones and affect all Federal permit holders that use

trap gear. The maximum trap size is intended as a capping mechanism to

prevent increased trapping efficiency by limiting expansion of trap

sizes. No data is currently available to document the numbers of traps

that are currently above the size cap in either nearshore or offshore

areas. However, the size caps were determined through a series of

Commission meetings with industry representatives and were set at or

above known industry standards at the time. For this reason, the

maximum trap size has been set to accommodate the majority of gear

currently in use. For the worst case scenario, the average nearshore

vessel fishing 667 traps have to replace every trap at a cost of $50

per trap for a total cost of $33,350. Similarly, the cost burden for an

average offshore vessel will be $66,050 (1,321 traps at $50/trap). The

regulations require installation of an escape vent that is 1/16th of an

inch (0.159 cm) greater than what the regulations use to require. This

regulation applies to all traps fished by Federal lobster permit

holders. Evidence offered by Effort Management Team (EMTs) members

during the development of Amendment 5 to the American lobster FMP

indicates that at least some portion of the lobster industry is already

using escape vents larger than old regulations use to require, and are

in compliance with the new regulation. No data is currently available

to document the actual number of escape panels that will be replaced.

However, assuming a worst case scenario, replacement of escape vents

cost an average nearshore vessel fishing 667 traps a total of $933. The

cost to an average offshore vessel fishing 1,321 traps will be $1,848.

These costs represent a one-time only increase in compliance costs

since the new escape vents will be incorporated into traps through

normal replacement and maintenance. Vessels that are currently using

conforming escape vents will not have to bear these costs. The added

costs of replacing escape vents may be partially offset with cost

savings, as the time required to cull the catch will be reduced (the

principal reason why many industry participants already are using

escape vents larger than required by the old regulations).

Although it is likely that compliance costs for some vessels will

increase by 5 percent or more compared to current compliance costs, the

exact number of vessels that will be effected cannot be determined with

the maximum trap size, trap tags requirements, and increased escape

vents requirements. Some amount of cash outlay will be required to come

into compliance. Under a worst case scenario, for an average vessel,

the cumulative cost of replacing escape vents and purchasing trap tags

is estimated to be $1,180 and $2,363 for nearshore and offshore

vessels, respectively. Surveys of offshore and nearshore lobster

vessels by the University of Rhode Island indicate that average annual

operating costs for offshore vessels will be approximately $190,000 per

year, exclusive of crew payments. Similarly, the estimated average

operating costs for nearshore vessels are $24,000. As a proportion of

operating costs, the estimated compliance costs (1.2 percent) for

offshore vessels does not exceed NMFS threshold. The proportional

increase (4.9 percent) in compliance costs for replacement of escape

panels and trap tags by nearshore vessels does not approach the NMFS

threshold for significance. Replacement of nonconforming traps

represents a significantly larger increase in compliance costs, since

new traps are estimated to cost $50 each. It is likely that at least

some portion of small entities will bear compliance costs that will

exceed the NMFS threshold of a 5 percent or greater increase in

compliance costs. However, given available data, it is not possible to

determine with reasonable certainty whether a substantial number of

entities will be significantly impacted.

Vessels that are currently fishing a number of traps greater than

the trap caps under this final rule will likely suffer greater short

run revenue losses. If these same vessels also previously used traps in

excess of the maximum trap size dimensions, the combined impacts of

revenue losses and gear replacement cost (compliance costs) could

likely put some of these vessels out of business. Unfortunately, while

the possibility exists for these circumstances to occur, because of

lack of data it is not possible to determine how many vessels will

actually be affected.

Non-Trap Sector

Interim non-trap regulations on March 2, 1998 (63 FR 10154) become

permanent this rulemaking. The non-trap regulations impose a possession

limit of 100 lobsters (or parts thereof) per day up to a maximum of 500

lobsters (or parts thereof) per trip for vessels using mobile gear to

harvest lobsters. The impact of this limit was evaluated by examining

Northeast dealer data for the 1996 calendar year for all Federally

permitted vessels using bottom trawl gear. Dealer data does not include

landings on a count basis or vessel fishing time. To overcome this lack

of information, two assumptions were required. First, it is assumed

that

[[Page 68245]]

the average weight of a trawl-caught lobster is 1 lb (0.454 kg). A one

pound lobster is approximately the weight of a lobster at its minimum

legal size. Second, all landings are associated with one 24-hour

period. These two assumptions are equivalent to a 100-pound (45.4 kg)

possession limit for mobile gear fishing participants. Based on this

analysis and the threshold of a 5 percent reduction in gross revenues,

48 (5.3 percent) trawl vessels will be impacted by more than a 5

percent reduction in revenues. By contrast, 76 percent of all trawl

vessels included in the analysis will not be impacted at all because

their documented landings did not exceed the possession limit on any

trips taken during the 1996 calendar year. Based on these findings, the

threshold of a 5 percent reduction in gross revenues for more than 20

percent of participants is not exceeded. The majority of vessels

harvesting lobster by mobile gear in the EEZ do not rely on lobster as

the principal source of annual income.

The ISFMP, through its area management approach, identifies and

addresses socio-economic impacts among the industry sectors on an area-

by-area basis. In the ISFMP, the management unit for American lobster

(state and Federal waters from Maine to North Carolina) is subdivided

into seven areas, and LCMTs were established for each of these areas.

These LCMTs, comprised of lobster industry members, make

recommendations for management measures to meet predefined targets

designed to end overfishing. Industry recommended LCMT measures,

implemented on an area by area basis after favorable review and by the

Commission and NMFS, would mitigate adverse economic impacts to area

participants by allowing for variable regulations by area, depending on

the fishing practices and unique fishery characteristics for each

management area. This approach, with industry participation, strives to

alleviate adverse economic impacts to the extent possible.

NMFS regulations, under this action, do not identify ``default''

management measures (such as continued trap reductions) beyond the

fishing year 2000. Instead, NMFS will evaluate the Commission's

recommendations for resource-wide management of lobster in the EEZ,

based upon the Commission's review and approval of conservation-

equivalent proposals submitted by the LCMTs. On at least an annual

basis, NMFS will identify, in consultation with the Commission and its

LCMTs, these and/or additional measures in Federal waters to meet ISFMP

objectives to end overfishing and to rebuild stocks of American

lobster. If additional measures are necessary, NMFS will conduct a

rulemaking action, including the appropriate biological and economic

analyses.

Selection of Alternative

The DEIS/RIR analyzed six different alternatives for the lobster

trap fishery and three alternatives for the non-trap (mobile gear)

fishery. For the trap fishery, the six alternatives included: Taking no

action (status quo); implementing measures in Federal waters

recommended by the Commission; implementing additional nearshore/

offshore trap limits with a buffer zone; implementing a four-tier

nearshore/offshore trap limit; implementing nearshore fixed trap limits

in combination with offshore limits based on historical participation;

and prohibiting lobster fishing in Federal waters. The non-trap fishery

alternatives included: A possession limit of 100 lobsters (or parts

thereof) per day or a maximum of 500 per trip (no action/status quo); a

possession limit of 500 per trip regardless of trip length, and a

prohibition on the harvest and possession of American lobster in

Federal waters. In addition, various alternatives were suggested by the

commenters which were rejected for reasons given in the response to

such sections.

Overall public comment during review of the DEIS/RIR indicated

strong support for the plan embodied by the Commission's ISFMP

(Alternative 2, for the lobster trap fishery and Alternative 1 for the

non-trap fishery), and little support for other alternatives. Due to

the preponderance of public comment for the alternatives noted here,

NMFS continued development of those alternatives in the FEIS/RIR and in

the proposed rule. See also Section III of the FEIS/RIR for rationale

for the adoption of the subject action.

Trap Fishery

In this regulatory action, management of the American lobster trap

fishery in the EEZ implements Alternative 2 identified in the DEIS:

Implement ASMFC Interstate FMP Amendment 3 measures in Federal waters

recommended by the Commission. The regulations implement a trap tag

program and trap limits in Federal waters throughout the species'

range. For nearshore management areas (Area 1, 2, 4, 5, 6, and the

Outer Cape), fishermen are limited to a maximum of 1000 traps in 1999,

and to a maximum of 800 traps in fishing year 2000. For the offshore

fishery (Management Area 3), fishermen are limited to a maximum of 2000

traps in 1999, and to a maximum of 1800 traps in fishing year 2000.

Additional new measures include: A prohibition on spearing lobster;

adopting the lobster management areas specified in the Commission's

ISFMP; a requirement that vessel owners who elect to use traps must

inform NMFS each year of the lobster management areas in which they

will set gear; a near-shore maximum trap size which, after a phase-in

period will, beginning May 1, 2003, be in line with the Commission's

Amendment 3 recommended size of 22,950 cubic inches (376,081 cubic

centimeters); an off-shore maximum trap size which, after a phase in

period will, beginning May 1, 2003, be in line with the Commission's

Amendment 3 size of 30,100 cubic inches (493,249 cubic centimeters);

increasing the minimum size of rectangular escape vents on lobster

traps to not less than 1\15/16\ inches (\4/92\ cm) by 5\3/4\ inches

(14.61 cm) or an increase in the minimum size of circular escape vents

to two portals with unobstructed openings not less than 2\7/16\ inches

(6.19 cm) diameter; for Federal permit holders fishing in lobster

management area 1, lobsters with a carapace size greater than 5 inches

(12.7 cm) cannot be retained, or effective May 1, 2000, when the area

designation requirement is implemented, lobsters with a carapace size

greater than 5 inches (12.7 cm) cannot be retained by fishermen who

elect Area 1 as one of their designated management areas; and a

requirement, effective May 1, 2000, that each trap set by a Federal

permit holder have a trap tag attached to the trap bridge or cental

cross-member.

In addition, a continuation of existing measures include: Extending

the moratorium on new entrants into the fishery; a prohibition on the

possession of lobsters bearing eggs or from which eggs have been

removed; a prohibition on the possession of lobster meat and detached

tails, claws, or other parts; a prohibition on the possession of V-

notched lobsters; a requirement to install a biodegradable ``ghost''

panel on traps; a minimum carapace size of 3\1/4\ inches (8.26 cm); a

requirement to install escape vents on traps; a prohibition on the

possession at any time of more than six lobsters per person when aboard

a head, charter, or dive vessel; a requirement that gear be marked in

order to identify the permit holder; and a prohibition on the

interstate or international trade of live whole lobsters smaller than

the Federal minimum size.

1. Alternative 1--No Action/Status Quo

See Section III.2.A of the DEIS/RIR.

[[Page 68246]]

Taking no action would continue current regulations pertaining to

harvest, possession, sale, purchase, or receipt of American lobster. No

other management measures would be implemented for the trap fishery.

Alternative 2, containing the measures implemented by this final rule,

was selected and Alternative 1 was rejected since current fishing

effort levels, if left unchecked under this alternative, would

jeopardize the ability of the lobster population to sustain itself and

would continue the danger of a possible stock collapse. Requirements

for trap tags and tag replacement costs in Alternative 2, compared to

alternative 1 (taking no action), will cost industry approximately

$2,501,821 over 10 years. The estimated costs for administrating the

trap tag program implemented by this final rule will be $94,506 for the

first and subsequent years of the program. Enforcement costs will focus

on verifying lobster management area designations and enforcing the

trap tag requirement. Enforcement costs should stabilize unless future

management measures include additional reductions in trap limits in

future years. (For a full description containing the details used in

determining the economic costs, see the FEIS, Regulatory Impact Review

under A--Costs to the Industry, B--Administrative Costs, and C--

Enforcement costs and burden).

2. Alternative 3--Nearshore/Offshore Trap Limits With a Buffer Zone

See Section III.2.C of the DEIS/RIR.

Alternative 3 would implement a four-year annual reduction in the

maximum number of lobster traps fished by, and would establish a 10 nm

(18.52 km) buffer zone where no traps could be deployed, in an effort

to separate the inshore and offshore EEZ fisheries for enforcement and

conservation purposes. No positive comments were provided on this

alternative at the 1998 public hearings. The 4-year reduction in trap

limits was rejected as a ``default'' approach in favor of an allowance

for primary consideration of conservation-equivalent measures to be

identified by the LCMTs. The buffer zone concept also received little,

if any, favorable public support, primarily since it was construed as

an unfair restriction on the trap vs. non-trap lobster fishery.

Requirements for trap tags and tag replacement costs in Alternative 2,

measures implemented by this final rule, will cost industry

approximately $2,501,821 over 10 years compared to this alternative 3,

which would cost industry approximately $1,804,754 over 10 years, due

to the trap reduction schedule in this alternative of 10 percent a year

up to a 40 percent reduction in the total number of traps fished. The

estimated costs for administrating the trap tag program implemented by

the final rule will be $94,506 for the first and subsequent years of

the program, while Alternative 3 would cost $94,506.00 for the first

and second year. By year 3, the trap tag reduction schedule would

impact traps in the water with a scheduled 10 percent reduction

continuing until year five. Costs therefore in year three would be

approximately $85,000, year four would be $75,600 and year five and

thereafter would be $66,150. Enforcement costs under alternative 3

would focus on verifying lobster management area designations,

enforcing the buffer zone prohibition and enforcing the trap tag

requirement. Enforcement costs under alternative 3 would increase,

compared to measures implemented under Alternative 2, since the

additional 10 percent reductions in trap limits in Alternative 3 would

require additional enforcement effort. (For a full description

containing the details used in determining the economic costs, see the

FEIS, Regulatory Impact Review under A--Costs to the Industry, B--

Administrative Costs, and C--Enforcement costs and burden).

3. Alternative 4--Four-tier Trap Reduction Strategy

See Section III.2.D of the DEIS/RIR.

This alternative compared to Alternative 3, would further limit

trap allocations among Federal permit holders, based upon the number of

traps actually fished in 1997. When compared to Alternative 2,

Alternative 4 was rejected since further analysis and public comments

indicates that this strategy is more germane to trap fisheries in

certain state waters, and not germane to the EEZ fishery. Available

data indicates that Federal permit holders tend to fish at or above the

maximum trap limits proposed in Alternative 4.

Requirements for trap tags and tag replacement costs in this final

rule will cost industry approximately $2,501,821 over 10 years, while

costs in Alternative 4 would cost industry approximately $1,353,566

over 10 years. Under Alternative 4, the estimated costs for

administrating the trap tag program would be approximately $70,880.00

for the first year and second year, $63,750 in year three, $56,700 for

year four, and $49,600 for year five and thereafter verses $94,506 for

the first and subsequent years of the program to be implemented by

regulations in this rule. Under the final rule and under Alternative 4,

enforcement costs will focus on verifying lobster management area

designations and enforcing the trap tag requirement. Enforcement costs

should stabilize unless future management measures include additional

reductions in trap limits in future years. (For a full description

containing the details used in determining the economic costs, see the

FEIS, Regulatory Impact Review under A--Costs to the Industry, B--

Administrative Costs, and C--Enforcement costs and burden).

4. Alternative 5--Nearshore Fixed Trap Limits/Offshore Historical

Participation

See Section III.2.E of the DEIS/RIR.

This alternative is similar to Alternative 3, but would allow

higher trap allocations to Federal permit holders in the offshore vs

nearshore EEZ fishery. This strategy for the offshore fishery is

supported by the Area 3 LCMT, which has been evaluated by the

Commission through public hearings. Issues concerning how this approach

relates to fishing effort limitations and other elements of the other

six lobster area management plans, have been contentious. Lobstermen

often fish in more than one management area in both nearshore and

offshore EEZ waters, and area plans under the ISFMP vary with respect

to proposed regulatory measures such as lobster minimum size, historic

participation, trap limits, and trap allocation procedures. The

Commission has recently approved guidelines for historical

participation in four of the seven lobster management areas (including

Area 3), and has recommended that NMFS implement such measures in the

EEZ portion of those areas. In follow-up to that recommendation, an

Advance Notice of Proposed Rulemaking (ANPR) was published in the

Federal Register on September 1, 1999 (64 FR 47756), to seek public

comment on whether there is a need to restrict access of Federal permit

holders to the lobster EEZ fishery on the basis of historical

participation. Depending on this public response, continued Federal

rulemaking, along with associated biological and economic analyses, may

be initiated in the near future. Accordingly, Alternative 5 was

rejected, but may be re-considered during future rulemaking, depending

on public response to the ANPR.

Requirements for trap tags and tag replacement costs in this final

rule will cost industry approximately $2,501,821 over 10 years,

compared to Alternative 5 which will cost industry approximately

$1,679,095 over 10 years. The estimated costs for administrating the

trap tag program implemented by

[[Page 68247]]

this final rule will be $94,506 for the first and subsequent years of

the program, while administrative costs under Alternative 5 would be

$86,945.00 for the first and second year, approximately $78,200 in year

three, $69,550 in year four, and in year five and thereafter costs

would be approximately $60,850. Also, it should be noted that

Alternative 5 would have an additional requirement to identify and

verify the recent historical trap possession by about 200 offshore

permitted vessels and allow the vessel owners to appeal to resolve trap

tag allocation. The additional requirement would accrue an additional

administrative task which is estimated to require a 0.5 staff year at

the cost to the government of approximately $16,000.00 for the first

year. Enforcement costs will focus on verifying lobster management area

designations and enforcing the trap tag requirement. Enforcement costs

should stabilize, unless future management measures include additional

reductions in trap limits in future years. (For a full description

containing the details used in determining the economic costs, see the

FEIS, Regulatory Impact Review under A--Costs to the Industry, B--

Administrative Costs, and C--Enforcement costs and burden).

5. Alternative 6--Ban Fishing for and Possession of Lobster

See Section III.2.F of the DEIS/RIR.

Alternative 6 would require removal of all trap gear and closure of

the EEZ to fishing for, and possession of lobster by any fishing vessel

until lobster stocks recover throughout their range. This alternative

was rejected when compared to Alternative 2, since it would have severe

socio-economic impacts on Federal permit holders and would likely

result in an adverse, substantial shift of fishing effort to other EEZ,

as well as inshore fisheries.

Requirements for trap tags and tag replacement costs in this final

rule will cost industry approximately $2,501,821 over 10 years compared

to Alternative 6 which would close Federal waters and therefore have no

tagging requirements or associated costs. However, based on exvessel

value for 1997, the trap ban would result in revenue loss to Federal

permit holders of $21.5 million in the first year. It is not known

whether these vessels would be able to move into state waters or other

fisheries to continue in business.

Compared to Alternative 6, the estimated costs for administrating

the trap tag program implemented by this final rule will be $94,506 for

the first and subsequent years of the program. Enforcement costs under

Alternative 6 would provide the most cost savings of any alternative,

since there would be no requirement to verify lobster management area

designations or enforce a trap tag requirement. Enforcement activities

under Alternative 6 would focus on compliance of the trap gear ban and

lobster possession prohibitions from EEZ waters. (For a full

description containing the details used in determining the economic

costs, see the FEIS, Regulatory Impact Review under A--Costs to the

Industry, B--Administrative Costs, and C--Enforcement costs and

burden).

Non-Trap Fishery

NMFS will continue the regulations pertaining to the non-trap

landing limits that are currently in place, implemented in Federal

waters as an interim final regulation (63 FR 10154) March 2, 1998. It

will be unlawful for a vessel that takes lobster by a method other than

traps to possess, retain on board, or land, in excess of 100 lobsters

(or parts thereof), for each lobster day-at-sea, or part of a lobster

day-at-sea, up to a maximum of 500 lobsters (or parts thereof) for any

one trip, unless otherwise restricted.

1. Alternative 2--Limit Landings to 500 Lobster Per Day, Regardless of

Trip Length

See Section III.3.B of the DEIS/RIR.

Alternative 2 was rejected in favor of Alternative 1, the status

quo option because Alternative 1 will retain lobster landings by the

non-trap fishery at historical levels, and prevent any potential

expansion of harvest during the American lobster stock rebuilding

period.

2. Alternative 3--Ban Fishing for and Possession of Lobster

See Section III.3.C of the DEIS/RIR.

This alternative was rejected in favor of Alternative 1, the status

quo option, because Alternative 3 would have severe economic impacts on

Federal permit holders and would likely result in an adverse,

substantial shift of fishing effort to other EEZ, as well as inshore

fisheries.

Although this rule does not modify existing regulations found at 50

CFR part 697 pertaining to weakfish, Atlantic striped bass, and

Atlantic sturgeon, the entirety of part 697, as proposed, is repeated

here.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Parts 649 and 697

Fisheries, Fishing.

Dated: November 22, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, under the authority of 16

U.S.C. 1801 et seq., 15 CFR chapter IX and 50 CFR parts chapter VI, are

amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE

PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as

follows:

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

2. In Sec. 902.1, the table in paragraph (b) is amended by:

A. Removing under 50 CFR the entries for Secs. 649.4, 649.5, 649.6,

649.7 and 649.21; and

B. Adding under 50 CFR the following entries in numerical order.

Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) * * *

------------------------------------------------------------------------

CFR part or section where the information collection

requirement is located Number \1\

------------------------------------------------------------------------

* * * * *

50 CFR:

* * * * *

697.4(a), (d) and (e)..................................... 0648-0202

697.5..................................................... -0202

697.6..................................................... -0202

697.8..................................................... -0350

697.12.................................................... -0202

697.21.................................................... -0351

697.22.................................................... -0309

------------------------------------------------------------------------

\1\ Current OMB control number (all numbers begin with 0648--).

50 CFR CHAPTER VI

PART 649--AMERICAN LOBSTER FISHERY--[REMOVED]

3. Part 649 is removed.

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

4. The authority citation for part 697 continues to read as

follows:

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

5. Part 697 is revised to read as follows:

[[Page 68248]]

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

Subpart A--General Provisions

Sec.

697.1 Purpose and scope.

697.2 Definitions.

697.3 Relation to other Federal and state laws.

697.4 Vessel permits and trap tags.

697.5 Operator permits.

697.6 Dealer permits.

697.7 Prohibitions.

697.8 Vessel identification.

697.9 Facilitation of enforcement.

697.10 Penalties.

697.11 Civil procedures.

697.12 At-sea sea sampler/observer coverage.

Subpart B--Management Measures

697.17 Non-trap harvest restrictions.

697.18 Lobster management areas.

697.19 Trap limits and trap tag requirements for vessels fishing

with traps.

697.20 Size, harvesting and landing requirements.

697.21 Gear identification and marking, escape vent, maximum trap

size, and ghost panel requirements.

697.22 Exempted fishing.

697.23 Restricted gear areas.

697.24 Exempted waters for Maine State American lobster permits.

697.25 Adjustment to management measures.

Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq.

Subpart A--General Provisions

Sec. 697.1 Purpose and scope.

The regulations in this part are issued under the authority of

section 804(b) of the Atlantic Coastal Fisheries Cooperative Management

Act, 16 U.S.C. 5101 et seq., and section 6 of the Atlantic Striped Bass

Conservation Act Appropriations Authorization, 16 U.S.C. 1851 note, and

govern fishing in the EEZ on the Atlantic Coast for species covered by

those acts.

Sec. 697.2 Definitions.

(a) In addition to the definitions in the Magnuson-Stevens Act and

in Secs. 600.10 and 648.2 of this chapter, for the purposes of this

part, the following terms have the following meanings:

American lobster or lobster means Homarus americanus.

Approved TED means any approved TED as defined at Sec. 217.12 of

this title.

Atlantic striped bass means members of stocks or populations of the

species Morone saxatilis found in the waters of the Atlantic Ocean

north of Key West, FL.

Atlantic sturgeon means members of stocks or populations of the

species Acipenser oxyrhynchus.

Berried female means a female American lobster bearing eggs

attached to the abdominal appendages.

Block Island Southeast Light means the aid to navigation light

located at Southeast Point, Block Island, RI, and defined as follows:

Located at 40 deg.09.2' N. lat., 71 deg.33.1' W. long; is 201 ft (61.3

m) above the water; and is shown from a brick octagonal tower 67 ft

(20.4 m) high attached to a dwelling on the southeast point of Block

Island, RI.

BRD means bycatch reduction device.

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.

Certified BRD means any BRD, as defined in part 622, Appendix D of

this chapter: Specifications for Certified BRDs.

Charter or head boat means any vessel carrying fishing persons or

parties for a per capita fee, for a charter fee, or any other type of

fee.

Commercial dive vessel means any vessel carrying divers for a per

capita fee, a charter fee, or any other type of fee.

Commercial purposes means for the purpose of selling, trading,

transferring, or bartering all or part of the fish harvested.

Commission means the Atlantic States Marine Fisheries Commission

established under the interstate compact consented to and approved by

Congress in Pub. L. 77-539 and Pub. L. 81-721.

Continuous transit means that a vessel does not have fishing gear

in the water and remains continuously underway.

CPH means Confirmation of Permit History.

Crab trawl means any trawl net that is rigged for fishing and has a

mesh size of 3.0 inches (7.62 cm), as measured between the centers of

opposite knots when pulled taut.

Cull American lobster means a whole American lobster that is

missing one or both claws.

Dealer means any person who receives, for a commercial purpose

(other than solely for transport on land), any species of fish, the

harvest of which is managed by this part, from the owner or operator of

a vessel issued a valid permit under this part, or any person who

receives, for a commercial purpose (other than solely for transport on

land), any species of fish managed under this part.

De minimis state means any state where the landings are so low that

the Commission's Fisheries Management Board has exempted that state

from some of its regulatory responsibilities under an Interstate

Fishery Management Plan.

Egg Production Rebuilding Schedule means the schedule identified in

section 2.5 of Amendment 3 to the Commission's ISFMP.

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

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

Fishing trip or trip means a period of time during which fishing is

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

vessel returns to port.

Fishing year means, for the American lobster fishery, from May 1

through April 30 of the following year.

Flynet means any trawl net, except shrimp trawl nets containing

certified BRDs and approved TEDs, when required under Sec. 227.72(e)(2)

of this title, and except trawl nets that comply with the gear

restrictions specified at Sec. 648.104 of this chapter for the summer

flounder fishery and contain an approved TED, when required under

Sec. 227.72 (e)(2) of this title.

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

for the escapement of lobster after a period of time if the trap has

been abandoned or lost.

ISFMP means the Commission's Interstate Fishery Management Plan for

American Lobster, as amended.

Land means to begin offloading fish, to offload fish, or to enter

port with fish.

Lobster day-at-sea with respect to the American lobster fishery

means each 24-hour period of time during which a fishing vessel is

absent from port in which the vessel intends to fish for, possess, or

land, or fishes for, possesses, or lands American lobster.

Lobster permit means a Federal limited access American lobster

permit.

Lobster trap trawl means 2 or more lobster traps, all attached to a

single ground line.

Management area means each of the geographical areas identified in

this part for management purposes under the lobster ISFMP.

Montauk light means the aid to navigation light located at Montauk

Point, NY, and defined as follows: Located at 41 deg.04.3' N. lat.,

71 deg.51.5' W. long.; is shown from an octagonal, pyramidal tower, 108

ft (32.9 m) high; and has a covered way to a dwelling.

Natural Atlantic sturgeon means any Atlantic sturgeon that is not

the result of a commercial aquaculture operation, and includes any

naturally occurring Atlantic sturgeon (those Atlantic sturgeon

naturally spawned and grown

[[Page 68249]]

in rivers and ocean waters of the Atlantic Coast).

Parts thereof means any part of an American lobster. A part of a

lobster counts as one lobster.

Point Judith Light means the aid to navigation light located at

Point Judith, RI, and defined as follows: Located at 41 deg.21.7' N.

lat., 71 deg.28.9' W. long.; is 65 ft (19.8 m) above the water; and is

shown from an octagonal tower 51 ft (15.5 m) high.

Recreational fishing means fishing that is not intended to, nor

results 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 head boats

and commercial dive vessels are not considered recreational fishing

vessels.

Regional Administrator means the Regional Administrator, Northeast

Region, NMFS, or a designee.

Retain means to fail to return any species specified under

Sec. 697.7 of this chapter to the sea immediately after the hook has

been removed or after the species has otherwise been released from the

capture gear.

Sea sampler/observer means any person required or authorized to be

carried on a vessel for conservation and management purposes by

regulations or permits.

Shrimp trawl net means any trawl net that is rigged for fishing and

has a mesh size less than 2.50 inches (6.35 cm), as measured between

the centers of opposite knots when pulled taut, and each try net, as

defined in Sec. 622.2 of this chapter, that is rigged for fishing and

has a headrope length longer than 16 ft (4.9 m).

Stocked Atlantic sturgeon means any Atlantic sturgeon cultured in a

hatchery that is placed in rivers and ocean waters of the Atlantic

Coast to enhance the Atlantic sturgeon spawning stocks.

TED means Turtle Excluder Device, which is a device designed to be

installed in a trawl net forward of the codend for the purpose of

excluding sea turtles from the net.

Trap means any structure or other device, other than a net, that is

placed, or designed to be placed, on the ocean bottom and is designed

for or is capable of, catching lobsters. Red crab fishing gear, fished

deeper than 200 fathoms (365.8 m), is gear deemed not to be a trap for

the purpose of this part, and is not subject to the provisions of this

part.

V-notched American lobster means any female American lobster

bearing a V-shaped notch in the flipper next to and to the right of the

center flipper as viewed from the rear of the lobster (underside of the

lobster down and tail toward the viewer), 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, at least \1/4\ inch (0.64 cm) in depth and tapering to a point.

Weakfish means members of the stock or population of the species

Cynoscion regalis, found along the Atlantic Coast from southern Florida

to Massachusetts Bay.

Whole American lobster means a lobster with an intact and

measurable body (tail and carapace). An American lobster with an intact

and measurable body that is missing one or both claws, i.e., a cull

lobster, is considered to be a whole American lobster.

(b) [Reserved]

Sec. 697.3 Relation to other Federal and state laws.

(a) The provisions of sections 307 through 311 of the Magnuson-

Stevens Act, as amended, regarding prohibited acts, civil penalties,

criminal offenses, civil forfeitures, and enforcement apply with

respect to the regulations in this part, as if the regulations in this

part were issued under the Magnuson-Stevens Act.

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

Sec. 600.705 of this chapter.

(c) The regulations in this part do not preempt more restrictive

state laws, or state enforcement of more restrictive state laws, with

respect to weakfish fishing and American lobster fishing. 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 or measure.

Sec. 697.4 Vessel permits and trap tags.

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

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

or harvested from the EEZ must have been issued and carry on board a

valid Federal limited access lobster permit. This requirement does not

apply to: charter, head, and commercial dive vessels that possess six

or fewer American lobsters per person aboard the vessel if such

lobsters are not intended for, nor used, in trade, barter or sale;

recreational fishing vessels; and vessels that fish exclusively in

state waters for American lobster.

(1) Eligibility in 1999 and thereafter. To be eligible for issuance

or renewal of a Federal limited access lobster permit for fishing year

1999 and thereafter, a vessel must:

(i) Have been issued a Federal limited access lobster permit for

the preceding fishing year by the last day of such fishing year unless

a CPH has been issued as specified in paragraph (a)(5) of this section

or unless otherwise authorized by the Regional Administrator;

(ii) Be replacing a vessel that was issued a Federal limited access

lobster permit for the preceding year; or

(iii) Be replacing a vessel issued a CPH.

(2) Qualification restriction. Unless the Regional Administrator

determines otherwise, no more than one vessel may qualify, at any one

time, for a Federal limited access 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 permit, based on one

vessel's fishing and permit history, the Regional Administrator will

determine who is eligible for the permit or a CPH under paragraph

(a)(3) of this section.

(3) Change in ownership. The fishing and permit history, and

management area designation, when required 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's fishing and permit history, and management area designation,

for the purposes of replacing the vessel.

(4) Consolidation restriction. Federal limited access American

lobster permits, and any rights or privileges associated thereto, may

not be combined or consolidated.

(5) Confirmation of permit history. Notwithstanding any other

provisions of this

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