[Federal Register Volume 67, Number 172 (Thursday, September 5, 2002)]
[Proposed Rules]
[Pages 56800-56804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22620]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 010413093-2190-02; I.D. 032301C]
RIN 0648-AP18


American Lobster; Intent to Prepare an Environmental Impact 
Statement

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

ACTION: Advance Notice of Proposed Rulemaking (ANPR), Notice of Intent 
(NOI) to combine rulemaking and prepare an Environmental Impact 
Statement (EIS); request for comments.

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SUMMARY: NMFS announces its intent to consider revisions to the Federal 
lobster regulations in response to the recommendations of the Atlantic 
States Marine Fisheries Commission (Commission) in Addendum III to 
Amendment 3 of the Interstate Fishery Management Plan for American 
Lobster (ISFMP), and prepare one EIS to assess the impact on the human 
environment of potential management measures for the American lobster 
fishery in the U.S. Exclusive Economic Zone (EEZ) as recommended by the 
Commission in Addenda II and III to Amendment 3 of the ISFMP (Addendum 
II and Addendum III; Addenda II and III). Written comments are 
requested from the public regarding issues that NMFS should address in 
the EIS relative to Addenda II and III. NMFS is also soliciting 
comments with this notification of potential modifications to parts of 
the current Federal lobster regulations to clarify these rules, assist 
with their enforcement, and better describe the inter-relationship 
between the Federal lobster regulations, the Atlantic Coastal Fisheries 
Cooperative Management Act (ACFCMA), and other applicable laws.

DATES: Written comments on the intent to prepare the EIS relative to 
Addenda II and III and on the potential modifications to parts of the 
current lobster regulations must be received no later than 5 p.m. 
Eastern Standard Time on or before October 7, 2002.

ADDRESSES: Written comments should be sent to Harold C. Mears, 
Director, State, Federal, and Constituent Programs Office, Northeast 
Region, NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments may 
also be sent via fax to (978) 281-9117.

[[Page 56801]]

Comments submitted via e-mail or Internet will not be accepted.

FOR FURTHER INFORMATION CONTACT: Peter Burns, (978) 281-9144, fax (978) 
281-9117, e-mail [email protected].

SUPPLEMENTARY INFORMATION: NMFS proposes to combine measures related to 
Addenda II and III to Amendment 3 into one rulemaking. Addenda II and 
III are both designed to address overfishing of lobster by increasing 
egg production, and as such, lend themselves to a single rulemaking.
    In response to the Commission's recommendation that NMFS implement 
regulations in the EEZ that are compatible with Addendum II to 
Amendment 3 of the ISFMP for American Lobster, NMFS published an ANPR 
(66 FR 28726) on May 24, 2001, and an NOI (66 FR 48853) on September 
24, 2001. These documents solicited written comments and informed the 
public of NMFS' intent to develop an EIS relative to Addendum II. 
Subsequently, the Commission adopted Addendum III to Amendment 3 which 
modified Addendum II and included new measures for the majority of the 
lobster conservation management areas (LCMA). The Commission has 
recommended that NMFS implement regulations compatible with Addendum 
III as well.
    Addenda II and III are part of an overall management regime set 
forth in Amendment 3 to the ISFMP. The intent of Amendment 3, approved 
by the Commission in December of 1997, is to achieve a healthy American 
lobster resource and to develop a management regime that provides for 
sustained harvest, maintains opportunities for participation, and 
provides for the cooperative development of conservation measures by 
all stakeholders. Amendment 3 employed a participatory management 
approach by creating the seven LCMAs, each with its own lobster 
conservation management team (LCMT) comprised of industry members.
    Amendment 3 tasked the LCMTs with providing recommendations for 
area-specific management measures to the Commission's American Lobster 
Management Board (Board) to meet the lobster egg production and effort 
reduction goals of the ISFMP. The effort reduction measures of the area 
plans were approved by the Board in August of 1999 as part of Addendum 
I to Amendment 3 (Addendum I). The Board then released the egg 
production measures as Addenda II and III in February 2001 and February 
2002, respectively, and recommended that NMFS implement complementary 
Federal regulations. NMFS has the authority under the ACFCMA to 
implement regulations in Federal waters that are compatible with the 
effective implementation of the ISFMP and consistent with the National 
Standards of the Magnuson-Stevens Fishery Conservation and Management 
Act. These Federal regulations are promulgated pursuant to ACFCMA and 
are codified at 50 CFR part 697.
    The requirements of the two addenda are summarized in the following 
sections.

Addendum II Summary

    Specific measures under Addendum II to help achieve the egg 
production goals of the ISFMP included a series of minimum gauge size 
increases (increases to the minimum legal length of the carapace, 
defined as the unsegmented body shell of the American lobster) and an 
increase in the minimum escape vent size of lobster trap gear fished in 
state and Federal waters of LCMA 2 (inshore Southern New England), LCMA 
3 (offshore area, comprised entirely of Federal waters), LCMA 4 
(nearshore Northern Mid-Atlantic), LCMA 5 (nearshore Southern Mid-
Atlantic), and the Outer Cape Management Area (nearshore waters east of 
Cape Cod). However, Addendum II did not require the implementation of 
these specific measures to either LCMA 1 (Gulf of Maine) or LCMA 6 
(Long Island Sound).
    Addendum II required the states to promulgate regulations to 
increase the minimum allowable harvest size of American lobster in 
LCMAs 2, 3, 4, 5 and the Outer Cape LCMA from 3 1/4 inches (in) (8.26 
cm) to 3 9/32 in (8.33 cm) by December 31, 2001, and to increase 1/32 
in (0.08 cm) by the end of each calendar year from 2002 through 2004 to 
an ultimate minimum size of 3 3/8 in (8.57 cm). If the LCMA 3 egg 
production targets of the ISFMP are not reached by 2004, Addendum II 
requires additional annual minimum gauge size increases in LCMA 3 of 1/
32 in (0.08 cm), until 2008, to an ultimate minimum size of 3 and one-
half (8.89 cm). The Commission recommended that the Secretary of 
Commerce take action to implement gauge increases in the Federal waters 
of the associated LCMAs consistent with this same schedule. The current 
minimum allowable harvest size for American lobster in all Federal 
waters is 3 1/4 in (8.26 cm). This gauge increase schedule was revised 
under Addendum III.
    Addendum II required all lobster traps fished either commercially 
or recreationally in LCMAs 2, 3, 4, 5 and the Outer Cape LCMA to have 
in place by 2003, at least one rectangular escape vent measuring 2 in 
(5.08 cm) by 5 3/4 in (14.61 cm) per trap, or at least two circular 
escape vents per trap, measuring 2 and one-half in (6.35 cm) in 
diameter. The Commission recommended that NMFS implement these new 
lobster trap escape vent size requirements in Federal waters. At the 
current time, Federal regulations require that all lobster trap gear 
have a rectangular portal with an unobstructed opening not less than 1 
15/16 in (4.92 cm) by 5 3/4 in (14.61 cm); or two circular portals with 
unobstructed openings not less than 2 7/16 in (6.19 cm) in diameter. 
The escape vent size requirement was not modified further in Addendum 
III.
    Addendum II also recommended that the lobster trap reduction 
schedule previously adopted for LCMA 3 in Addendum I be updated to 
account for the elapsed time between the two addenda. Implementation of 
the updated lobster trap reduction schedule for LCMA 3 is contingent 
upon Federal rulemaking procedures currently underway to address 
historical participation in the lobster trap fishery as recommended by 
the Commission in Addendum I.
    Addendum II, furthermore, recommended that NMFS require LCMA 3 
lobstermen to maintain vessel logbooks to record lobster harvest. 
Current Federal lobster regulations do not require vessel logbooks. No 
additional modifications were adopted in Addendum III regarding the 
LCMA 3 trap reduction schedule or vessel logbook requirement.

Addendum III Summary

    Addendum III updates the implementation dates for the minimum gauge 
size increases initially approved in Addendum II, includes additional 
management measures for LCMAs 2, 3, 4, 5 and the Outer Cape Area, and 
adopts management programs for LCMAs 1 and 6, neither of which 
submitted LCMT plans for Board approval under Addendum II..
    Addendum III carries forward the Addendum II gauge increase 
schedule with some modification. Consistent with Addendum II, the 
initial 1/32 in (0.08 cm) gauge increase must be implemented by the 
associated states for LCMAs 2, 3, and the Outer Cape Management Area by 
December 31, 2001. However, Addendum III modifies the implementation 
date to July 1 (formerly December 31 as presented in Addendum II) for 
gauge increases in each of the subsequent years through 2004 until the 
3 3/8 in (8.57 cm) minimum size is reached (or through

[[Page 56802]]

2008 if increases up to 3 and one-half in (8.89 cm) are necessary in 
LCMA 3 and the Outer Cape LCMA).
    Additionally, Addendum III allows LCMAs 4 and 5 the option to 
either follow this same gauge increase schedule, or take no action in 
2001 and implement a 1/16 in (0.16 cm) gauge size increase to 3 5/16 in 
(8.42 cm) by July 1, 2002, and implement the subsequent annual 1/32 in 
(0.08 cm) increases consistent with the approved Addendum III gauge 
increase schedule in the following years (July 1, 2003, and July 1, 
2004).
    Addendum III also includes additional (new) minimum gauge size 
increases for the Outer Cape LCMA, if necessary to meet the egg 
production targets of the ISFMP. After annual implementation of the 
first four gauge increases up to 3 3/8 in (8.57 cm) from 2001 through 
2004, a 1/32 in (0.08 cm) increase would be implemented by July 1 
annually during the subsequent 4-year period (2005 through 2008), to a 
final minimum gauge size in the Outer Cape LCMA of 3 and one-half in 
(8.89 cm).
    In addition to the modifications of existing measures adopted under 
Addendum II, Addendum III includes several new management measures. 
Those new measures are detailed in this section for each LCMA. As 
written in Addendum III, some of the new measures need only be 
implemented if it is determined in subsequent years that a particular 
LCMA is not on target to achieve the egg production goals of the ISFMP. 
These contingent measures were provided as a safety net by some of the 
LCMTs to ensure that the necessary level of egg production is met. 
However, review of the LCMT plans by the Commission's Lobster Technical 
Committee (Technical Committee) concluded that all the contingent 
measures identified are, in fact, necessary to achieve the egg 
production goals based on the most recent 2000 lobster stock 
assessment. Subsequent to the next lobster stock assessment scheduled 
for late 2003, it is anticipated that the Technical Committee will 
reassess the need for the contingent provisions for each LCMA.

LCMA 1

    Several new measures were adopted into the LCMA 1 management 
program in Addendum III:
    Escape Vent Size Increase. If necessary, all lobster traps fished 
either commercially or recreationally in LCMA 1 must, by July 1, 2007, 
have at least one escape vent per trap measuring 2 in (5.08 cm) by 5 3/
4 in (14.61 cm) or two circular vents with a diameter measuring 2 and 
one-half in (6.35 cm).
    Zero-Tolerance V-Notching. Addendum III establishes a zero-
tolerance approach to the determination of a v-notched female and 
defines a v-notched female lobster in LCMA 1 as any female lobster 
bearing a v-shaped notch of any size in the flipper immediately to the 
right of the center flipper as viewed when the underside of the lobster 
is down and its tail is toward the person making the determination. In 
the context of Addendum III, V-notched female lobster also means any 
female that is mutilated in a manner which could hide, obscure or 
obliterate such a mark.
    Mandatory V-notching Requirement. All LCMA 1 lobster fishers are 
required by Addendum III to v-notch all egg-bearing female lobsters 
caught in the process of lobstering. This facet of the LCMA 1 plan was 
approved by the Board with the understanding that the Commonwealth of 
Massachusetts Division of Marine Fisheries (MA DMF) will monitor the 
percentage of v-notched egg-bearing female lobster in commercial 
catches during 2002. If the observed percentage of v-notched females 
does not reach 50 percent by the end of 2002, MA DMF will consider 
additional measures in 2003 to help achieve the goals of the ISFMP. In 
this situation, at a minimum, all regulations promulgated to implement 
Addendum III in LCMAs 2, 3 and the Outer Cape LCMA would be expanded to 
include the Massachusetts portion of LCMA 1. Other entities of LCMA 1 
may also consider additional management measures in 2003 to achieve the 
goals of Adde ndum III.

LCMA 2

    No new measures were adopted for LCMA 2 under Addendum III. 
However, as previously described, the implementation date for annual 
increases of 1/32 in (0.08 cm) to the minimum gauge size as required 
under Addendum II was changed from December 31 to July 1 for calendar 
years 2002 through 2004.

LCMA 3

    Mandatory V-Notch Requirement. All vessels fishing in LCMA 3 north 
of 42[deg] 30' N. lat. are required to v-notch all egg-bearing female 
lobsters caught while lobster fishing.
    Overlap Boundary Between LCMA 3 and LCMA 5. Addendum III adopted a 
5-mile (8.05 km) overlap along the entire length of the boundary 
between LCMAs 3 and 5. This overlap area is defined by the following 
coordinates:

                                       LMCA 3/LCMA 5 OVERLAP BOUNDARY AREA
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                 POINT                     CURRENT COORDINATES (LAT/LONG)       OVERLAP COORDINATES (LAT/LONG)
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V                                       39[deg]50' N/73[deg]01' W            39[deg]48' N/72[deg]55' W
X                                       38[deg]39' N/73[deg]40' W            38[deg]38.2' N/73[deg]33.8' W
Y                                       38[deg]12' N/73[deg]55' W            38[deg]10.4' N/73[deg]49' W
Z                                       37[deg]12' N/74[deg]44' W            37[deg]10.6' N/74[deg]38' W
ZA                                      35[deg]34' N/74[deg]41.' W           35[deg]31.9' N/74[deg]45.5' W
ZB                                      35[deg]14.5' N/75[deg]31' W          35[deg]10.3' N/75[deg]27.7' W
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From point V, current coordinates extending out to new overlap coordinates, back to point ZB

    Choose and Use Provision. This measure would require those vessels 
qualifying for access under a historical participation effort reduction 
program, if implemented under Federal regulations in LCMA 3, to 
designate LCMA 3 each year on the vessel's Federal permit, or else 
forego subsequent participation in the LCMA 3 lobster trap fishery.

LCMA 4

    Maximum Gauge Size. The maximum gauge size for American lobster in 
LCMA 4 shall be no greater than 5 1/4 in (13.34 cm) beginning July 1, 
2002. A 5 in (12.7 cm) maximum gauge size may also be considered if, 
following an updated stock assessment, it is deemed necessary to meet 
the lobster management plan goals and objectives. If maximum gauge 
sizes are not in place in adjacent management areas, then LCMA 4 
fishermen may v-notch female lobsters above the maximum size.

[[Page 56803]]

LCMA 5

    Maximum Gauge Size. The maximum gauge size for American lobster in 
LCMA 5 shall be no greater than 5 and one-half in (13.97 cm) beginning 
July 1, 2004. The 5 and one-half in (13.97 cm) maximum size will be 
implemented in LCMA 5 if, following an updated stock assessment, this 
measure is considered necessary to meet the lobster management plan 
goals and objectives. If maximum gauge sizes are not in place in 
adjacent management areas, then LCMA 5 fishermen may v-notch female 
lobsters above the maximum size.
    Vessel Upgrade Limit. This measure restricts the limit on increases 
in vessel length to no more than 10 percent and limits increases in 
vessel horsepower through upgrading or replacement by no more than 20 
percent.

LCMA 6

    A combination of minimum gauge size increases and escape vent size 
increases has been approved for LCMA 6 in Addendum III. Although LCMA 6 
is comprised entirely of New York and Connecticut state waters within 
Long Island Sound, Federal lobster permit holders authorized by these 
states to fish for lobster in this LCMA will be affected by these 
measures.
    Minimum Gauge Size. The minimum gauge size for American lobster in 
LCMA 6 shall be no lower than the minimum carapace length identified in 
the following table. The implementation date for associated regulations 
mandating each gauge increase is also indicated.

                                 LMCA 6
July 1, 2004*-3 9/32 in (8.33 cm)
July 1, 2005*-3 5/16 in (8.42 cm)
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* NOTE-LCMA 6 will implement minimum size increases beyond 3 1/4 in
  (8.26 cm) at the rate of 1/32 in (0.08 cm) per year, beginning in
  2004, until a final minimum size of 3 5/16 in (8.42 cm) is reached,
  if, following an updated stock assessment, it is necessary to meet
  lobster management plan goals and objectives.

    LCMT 6 will choose among two possible paths for lobster management 
beyond 2005. Regulations for these measures must be in place according 
to the following implementation schedule.

                                 PATH 1
------------------------------------------------------------------------
               YEAR                                ACTION
------------------------------------------------------------------------
July 1, 2006                        Elevate gauge increase and effort
                                     reduction from trap tag buy back
                                     program
July 1, 2007*                       Implement 1 32 in (0.08 cm) gauge
                                     size increase, and or 2 in (5.08
                                     cm) escape vent size increase, and
                                     or V-notch some percentage of
                                     female lobsters, and or establish a
                                     maximum gauge size*
July 1, 2008*                       Implement 1/32 in (0.08 cm) gauge
                                     size increase, and/or 2 in (5.08
                                     cm) escape vent size increase, and/
                                     or V-notch some percentage of
                                     female lobsters, and/or establish a
                                     maximum gauge size
------------------------------------------------------------------------
NOTE: LCMA 6 will implement the above management measures, if, following
  an updated stock assessment, it is necessary to meet lobster
  management plan goals and objectives.

    OR

                                 PATH 2
------------------------------------------------------------------------
                 YEAR                                ACTION
------------------------------------------------------------------------
July 1, 2006                           Implement a 2 in (5.08 cm) escape
                                        vent size if a gauge increase
                                        was implemented in 2005
July 1, 2007                           Evaluate with new information,
                                        confirm that the overfishing
                                        threshold has been met or
                                        exceeded
July 1, 2008                           Evaluate with new information,
                                        confirm that the overfishing
                                        threshold has been met or
                                        exceeded
------------------------------------------------------------------------

    If Path 2 is selected for implementation, then all lobster traps in 
LCMA 6, whether fished commercially or recreationally, must contain at 
least one rectangular escape vent per trap or at least two circular 
escape vents according to the following schedule. Regulations must be 
implemented in accordance with the dates indicated.

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                                                    One rectangular Vent                 Two Circular vents
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July 1, 2006*                              2 in (5.08 cm) by 5 3/4 in (14.61 cm)   2 and one-half in (6.35 cm)
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*NOTE: LCMA 6 will implement a 2 in (5.08 cm) escape vent size if a gauge size increase is implemented in 2005,
  as outlined in Section 2.1.5.1 of Addendum III.

Outer Cape LCMA

    Minimum Gauge Size Increases. Addendum II adopted increases to the 
minimum gauge size for lobster harvested in the Outer Cape LCMA that 
would result in achievement of a 3 3/8 in (8.57 cm) minimum size in 
2004. Addendum III mandates implementation of additional 1/32 in (0.08 
cm) increases annually beginning July 1 of each year from 2005 through 
2008 to a final minimum size of 3 [half] in (8.89 cm) if such measures 
are deemed necessary to meet the egg production goals of the ISFMP.
    Trap Reduction Schedule. To control expansion of fishing effort, 
the overall total number of traps allowed to be fished in the Outer 
Cape LCMA will be established from the sum of the individual maximum 
traps reported by each Outer Cape lobster fisherman on their 1998 MA 
DMF catch report. Addendum III mandates that beginning in 2002 and 
extending through 2008, a 20 percent reduction of the total number of 
traps allowed to be fished will occur in the Outer Cape LCMA. An 
additional 5-percent reduction of the number of the total number of 
traps allowed to be fished per year may be employed in 2006 and 2007, 
if necessary, to meet lobster egg production goals and objectives. The 
initial trap allocations for each lobsterman will be based on catch 
report statistics from MA DMF and will be reduced annually during the 
reduction period. Those who fished in the Outer Cape LCMA in 2001 but 
have no prior fishing history there (in other words, have not submitted 
MA DMF catch reports) will be issued a trap allocation based on proof 
of documentation of the number of traps they fished during 2001. In 
such situations, allocations will be apportioned from a percentage of 
the overall trap cap number, not to exceed 2 percent of that total. 
Those who received a transferred license with an Outer Cape LCMA 
fishing history (based on submission of MA DMF catch reports) will 
receive an initial trap allocation based on that history.
    Annual Trap Transfer Period and Passive Reductions. Trap transfers 
are allowed annually from January 1 through March 31. Trap tags may be 
transferred among Outer Cape lobster

[[Page 56804]]

fishers to allow individual operations to build up or down within the 
maximum allowable 800 trap limit. For each trap tag transfer event, a 
10 percent passive reduction in traps will occur for that allocation. 
For example, a 100-trap tag transaction will result in a net amount of 
90 tags transferred. The overall Outer Cape trap cap will be reduced 
accordingly through active and or passive trap reduction measures until 
the fishing mortality rate in the Outer Cape LCMA is reduced to a level 
consistent with the egg production goals of the ISFMP. Each time a 
lobster license is transferred within this LCMA, the trap tag 
allocation associated with that license will be reduced by 10 percent. 
No new participants will be allowed to participate in the Outer Cape 
lobster fishery unless they receive trap tags through a transfer from 
fishermen operating under the established total trap cap. A trap haul-
out period is also established under Addendum III for the Outer Cape 
LCMA from January 1 through March 31 annually to assist in the 
enforcement of the trap cap. No trap gear will be allowed in the Outer 
Cape LCMA during this period.

Additional Issues for Consideration

    NMFS seeks comments on the following potential changes to the 
Federal lobster regulations, in addition to those as described in 
Addenda II and III to Amendment 3 of the ISFMP, to more effectively 
express their initial intent and facilitate enforcement:
    (1) Modification of 50 CFR 697.4(a)(7)(iv),Vessel permits and trap 
tags, to allow a change to a vessel's lobster trap area designations on 
the Federal limited access lobster permit when the vessel and permit 
are sold to a second party. Currently, the regulations prohibit such 
changes during the course of the Federal permit year once the permit 
has been issued unless the permitted vessel becomes a replacement 
vessel for another qualified vessel.
    (2) Inclusion of a specific reference to already existing 
enforcement measures in the conditions section of 50 CFR 697.4(b), 
Vessel permits and trap tags.
    (3) Modification of 50 CFR 697.7(c)(1)viii, Prohibitions, to more 
directly specify that Federal lobster permit holders are prohibited 
from hauling or possessing lobster trap gear belonging to another 
vessel.
    (4) Modification of 50 CFR 697.22, Exempted fishing, to specify, 
consistent with the wording in 50 CFR part 600.745, that either the 
Regional Administrator for the Northeast Region, or the Director of the 
Office of Sustainable Fisheries, as appropriate, may exempt any person 
or vessel from the regulations in 50 CFR part 697 for the conduct of 
exempted fishing pursuant to the provisions of 50 CFR part 600.745. 
This modification would also provide additional language to allow the 
Regional Administrator for the Northeast Region, or the Director of the 
Office of Sustainable Fisheries, as appropriate, to authorize a 
substitute vessel to haul ashore the lobster trap gear of an inoperable 
or mechanically impaired federally permitted lobster vessel without 
having to engage in the exempted fishing process outlined at 50 CFR 
600.745, Exempted fishing. This revision would allow NMFS to more 
expeditiously address exigent needs than is currently provided in the 
regulations.
    If revised regulations relative to the management measures as 
described in this notice are promulgated they may have a significant 
economic effect on a substantial number of small entities, including 
Federal lobster permit holders. Accordingly, NMFS requests public input 
on the entire suite of Addenda II and III measures and additional 
issues relative to the Federal lobster regulations as identified to 
assist in conducting a comprehensive assessment of the impacts of these 
and other associated measures to the human and natural environment in 
the EIS.

Classification

    This ANPR has been determined to be not significant for the 
purposes of Executive Order 12866.

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

    Dated: August 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory programs, National Marine 
Marine Fisheries Service.
[FR Doc. 02-22620 Filed 9-4-02; 8:45 am]
BILLING CODE 3510-22-S