[Federal Register Volume 68, Number 59 (Thursday, March 27, 2003)]
[Rules and Regulations]
[Pages 14902-14932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7067]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No.010918229-3033-02;I. D.022301A]
RIN 0648-AP15


American Lobster Fishery

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

ACTION: Final rule.

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SUMMARY: NOAA Fisheries amends regulations to modify the management 
measures applicable to the American lobster fishery. This action 
responds to the following recommendations made by the Atlantic States 
Marine Fisheries Commission (Commission):To control fishing effort as 
determined by historical participation in the American lobster trap 
fisheries conducted in the offshore Lobster Conservation Management 
Area (LCMA) 3 (Area 3) and in the nearshore LCMAs of the Exclusive 
Economic Zone (EEZ) from New York through North Carolina (Areas 4 and 
5); to implement a mechanism for conservation equivalency and 
associated trap limits for owners of vessels in possession of a Federal 
lobster permit (permit holders) fishing in New Hampshire state waters; 
and to clarify lobster management area boundaries in Massachusetts 
waters. NOAA Fisheries includes in this final rule a mechanism for 
Federal consideration of future Commission requests to implement 
conservation equivalent measures and a technical amendment to the 
regulations clarifying that Federal lobster permit holders must attach 
federally approved lobster trap tags to all lobster traps fished in any 
portion of any management area (whether in state or Federal waters). 
This requirement is not new, but was not previously clearly specified 
in the regulatory text, and this announcement is intended to make the 
regulations easier to understand.

DATES: This rule is effective April 28, 2003.

ADDRESSES: Copies of a Final Supplemental Environmental Impact 
Statement/Regulatory Impact Review/Final Regulatory Flexibility 
Analysis (FSEIS/RIR/FRFA) can be obtained from Harold Mears, Director, 
State, Federal and Constituent Programs Office, NOAA Fisheries, One 
Blackburn Drive, Gloucester, MA 01930. Comments regarding the 
collection-of-information requirements should be sent to Harold Mears 
at the above address, 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, NOAA Fisheries, Northeast 
Region, 978-281-9234.

SUPPLEMENTARY INFORMATION:

Statutory Authority

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

Purpose and Need for Management

    American lobster experience very high fishing mortality rates 
throughout their range, from Canada to Cape Hatteras. In 2000, the 
Commission issued a peer reviewed American lobster stock assessment 
report that concluded that the resource is overfished. The review 
concluded that fishing rates are unacceptably high and that a 
precautionary approach in management of the resource is warranted to 
sustain future viability of the lobster fishery. The report recommended 
that reductions in fishing mortality could be achieved through 
reductions in fishing effort. The 2001 Annual State and Federal Trawl 
Survey Update to the 2000 lobster stock assessment indicated that 
resource conditions have not improved since the stock assessment in 
2000. For pre-recruit lobsters, which are those lobsters within one-
half inch (1.2 cm) of the current Federal legal minimum carapace size 
of 3-1/4 inches (8.26 cm), the mean number per tow generally declined 
throughout all stock areas for both sexes. Although harvest and 
population abundance are near record levels due to high recent

[[Page 14903]]

recruitment and favorable environmental conditions, revenue from the 
2001 lobster harvest decreased 21.1 percent as compared to 1999. 
Concerns over the condition of the resource continued into 2003, with 
reports of a dramatic decline in abundance in Area 2 surrounding Block 
Island Sound and the state waters of Rhode Island in 2002. A 
significant decline would have serious implications for the American 
lobster fishery, which is the most valuable fishery in the northeastern 
United States. In 2001, approximately 74 million pounds (33,439 metric 
tons (mt)) of American lobster were landed with an ex-vessel value of 
approximately 255 million dollars. Additional background information on 
the status of the stocks was presented in the FSEIS/RIR/FRFA prepared 
by NOAA Fisheries for this final rule and is not repeated here (see 
ADDRESSES).

The Commission ISFMP Recommendations for Effort Control in Areas 3, 4, 
and 5

    The Commission approved Addendum I on August 3, 1999. The Addendum 
is principally an effort control measure that determines trap limits 
based upon historical participation (as opposed to fixed trap limits) 
in Lobster Management Area 3 (offshore EEZ), and Areas 4 and 5 (inshore 
EEZ areas south of New York).
    Based upon its approval of selected management measures proposed by 
the Area 3, 4, and 5 LCMTs, the Commission recommended to NOAA 
Fisheries that access to, and levels of effort in, the lobster trap 
fishery in EEZ Offshore Area 3 and Nearshore EEZ waters of Areas 4 and 
5 be based on historical participation. The Commission recommendations 
for qualification based on historical participation addressed 
qualification criteria, allocation of fishing effort, and limitations 
on vessel upgrades. Qualification criteria are different among the 
areas and include demonstration of active involvement in the fishery 
during a specified qualification period through provision of certain 
documents. The Commission plan for Area 3 proposes that potential 
participants must meet or exceed both a landing and a fishery intensity 
threshold in order to qualify and specifically defines that threshold. 
The Commission plans for Areas 4 and 5 however, although similar, only 
generally prescribe that qualification and trap limits be based on 
``historical levels'' without providing further definition.

The Commission ISFMP Recommendations for New Hampshire Conservation 
Equivalency

    In October 1998, the Commission approved a proposal from the State 
of New Hampshire for conservation equivalent lobster trap limits that 
vary from the 800 lobster trap limit in Area 1 (see subsequent text for 
details on the state program). In keeping with ISFMP procedures, this 
conservation equivalent proposal was submitted by the State of New 
Hampshire to the Board with supporting documentation to support the 
state's contention that the state lobster fishing effort control 
program would, in fact, be equivalent to the fixed trap limits for LCMA 
1. The state proposal and supporting documentation was submitted to the 
Commission's Lobster Technical Committee (``TC''), composed of lobster 
scientists from several states and NOAA Fisheries, and following a 
review of the conservation equivalency proposal and supporting 
documentation, the TC concurred with the State of New Hampshire that 
the state's program would be equivalent to the LCMA 1 fixed trap limit 
of 800 traps. Following the TC review, and the Commission approval, the 
Commission recommended that NOAA Fisheries implement compatible 
measures for impacted Federal lobster permit holders.
    The State of New Hampshire's lobster management program provides 
for a two-tier lobster license system:State fishermen who provide 
documentation of landing more than 12,000 lb (5,443 kg) of lobster in 
at least 2 years, from 1994 to 1998, receive a full commercial lobster 
license issued by the State of New Hampshire; those who cannot provide 
this documentation are issued a limited commercial lobster license. 
Those fishermen who qualify for a full license may fish up to 1,200 
lobster traps in state waters, and those in the limited category may 
fish a maximum of 600 lobster traps in state waters. Following approval 
of the New Hampshire proposal under the ISFMP, the Commission 
recommended that NOAA Fisheries modify Federal regulations to maintain 
the biological and socio-economic basis of New Hampshire's lobster 
management program. The Commission requested that NOAA Fisheries modify 
Federal regulations to allow Federal permit holders who elect to fish 
in Area 1 and also possess a New Hampshire full commercial lobster 
license to fish 400 lobster traps in New Hampshire state waters in 
addition to the 800 lobster traps they may fish in state and Federal 
waters of Area 1 under current Federal regulations. However, these 
fishermen would not be allowed to fish more than 800 lobster traps in 
the Federal waters of Area 1.

The Commission ISFMP Recommendations for Revisions to Area Boundaries

    In Addendum I to Amendment 3 of the American Lobster ISFMP, the 
Commission revised the boundary lines for three of the LCMAs adjacent 
to Massachusetts, including Area 1, Area 2, and the Outer Cape Area, to 
bring the area boundaries more in line with traditional fishing 
practices in those areas and to correct an oversight in the 
specification of an Area 1 boundary line in Amendment 3 to the ISFMP. 
Following approval of Addendum I, the Commission recommended that NOAA 
Fisheries modify Federal regulations to maintain compatible boundary 
lines in Federal regulations. A copy of charts showing the affected 
American lobster EEZ management areas is available from NOAA Fisheries 
(see ADDRESSES).
    Discussion of the selected management actions includes reference to 
other recommendations made by the Commission, but not extensively 
analyzed for this action. These include upgrade limitations for vessels 
participating in the LCMA 3 trap fishery, an increase in the minimum 
gauge size in Federal waters, and ``closed areas'' which would prohibit 
harvest of lobsters taken by trap gear in selected portions of LCMA 4. 
See subheading ``Commission recommendations considered but rejected'' 
in this Summary Information section of this final rule for additional 
information on recommendations considered but rejected. The selected 
management actions also include a discussion of concerns raised by NOAA 
Fisheries in two areas relative to the ability of Federal permit 
holders to compile and provide documentation which will be required to 
certify historical participation on the basis of the qualification 
criteria, and the ability of NOAA Fisheries to accommodate 
recommendations from the Commission for Federal rulemaking responding 
to conservation-equivalent management measures specific to state 
jurisdictional waters. See subheading ``Historic participation 
implementation analysis'' in this Summary Information section of this 
final rule for additional discussion of documentation requirements for 
measures specified in this final rule.

Federal Rulemaking for Compatible Measures to the ISFMP

    The current Federal lobster management program implemented

[[Page 14904]]

with regulations in the Final Rule on December 6, 1999 (64 FR 68228), 
uses a fishing effort limitation strategy, among other measures, to 
control lobster fishing mortality. Fishing effort is currently limited 
by restricting the access of new vessels to the fishery and by limiting 
the number and size of traps that may be fished by each vessel. The 
Commission's Addendum I recommendations to NOAA Fisheries were the 
first attempt in the lobster ISFMP to begin controlling effort through 
trap limits based on historic participation. To support the Commission, 
and as a result of the Commission's recommending compatible measures in 
Federal waters, NOAA Fisheries published an Advance Notice of Proposed 
Rulemaking (ANPR) in the Federal Register on September 1, 1999 (64 FR 
47756), to seek public comment on whether there is a need under the 
Atlantic Coastal Act to restrict access of Federal permit holders in 
the lobster EEZ fishery on the basis of historical participation. The 
ANPR also notified the public that NOAA Fisheries established September 
1, 1999, the publication date of the ANPR, as a potential control date, 
or cut-off date, to be used to determine eligibility for future access 
to lobster management areas, and to discourage shifts into new areas by 
lobster trap vessels subject to Federal lobster regulations.
    NOAA Fisheries subsequently published a Notice of Intent (NOI) to 
prepare an Environmental Impact Statement (EIS) in the Federal Register 
on December 10, 1999 (64 FR 69227). NOAA Fisheries later published a 
notice of availability for a Draft Supplemental Environmental Impact 
Statement (DSEIS) on November 24, 2000 (65 FR 70567). The DSEIS 
responded to recommendations made by the Commission, and considered the 
biological, economic, and social impacts of several alternative actions 
for waters under Federal jurisdiction. The preferred alternatives in 
the DSEIS included:implementation of a historical participation 
management regime to control lobster fishing effort and preserve the 
socio-economic character of the associated lobster fisheries in Lobster 
Management Areas 3, 4 and 5; modification of trap limit restrictions 
for Federal Lobster permit holders who also hold a New Hampshire state 
lobster license, to be consistent with New Hampshire regulations, which 
were determined by the Commission to be conservation equivalent to the 
ISFMP; and modifications to the coordinates of lobster management areas 
in Massachusetts state waters, for clarity, and to be consistent with 
past fishing practices. In November and December 2000, NOAA Fisheries 
held public meetings in Maine, Rhode Island, New York, and New Jersey, 
to receive comments on the biological, economic and social impacts 
addressed in the DSEIS. A total of 153 individuals attended the public 
meetings, which were held in November and December 2000, and 225 
written comments were received by January 9, 2001, the closing date for 
public comment on the DSEIS.
    NOAA Fisheries published its Proposed Rule in the Federal Register 
on January 3, 2002 (67 FR 282). The Proposed Rule addressed management 
measures identified in the DSEIS, and included a technical amendment to 
the regulations to clarify that Federal lobster permit holders must 
attach federally approved lobster trap tags to all lobster traps fished 
in any portion of any management area (whether in state or Federal 
waters). NOAA Fisheries received 190 comments on the American lobster 
proposed rule during the comment period which ran from January 3-
February 28, 2002. The comment period on the proposed rule was extended 
from February 19, 2002, to February 28, 2002, to ensure all interested 
parties adequate time for review of the document, and, in part, to 
allow the Commission opportunity to discuss during the Commission 
American Lobster Board Meeting held February 20, 2002, in Washington, 
D. C. All of the public comments were carefully considered and a 
summary of comments and NOAA Fisheries responses are provided later in 
this document. On November 8, 2002, NOAA Fisheriespublished a notice of 
availability for a Final Supplemental Environmental Impact Statement 
(67 FR 68128). The deadline for acceptance of public comment in 
response to the biological, economic, and social impacts addressed in 
the FSEIS was December 9, 2002. NOAA Fisheries received 82 comments on 
the FSEIS.

Alternatives Evaluated

    The DSEIS and FSEIS presented several alternatives for each of the 
major measures addressed by this regulatory action, within the 
parameters of the Atlantic Coastal Act and Magnuson-Stevens Act 
requirements. Four of these (Alternatives 1A - 1D) address alternatives 
relating to implementation of historical participation as a means to 
control lobster fishing effort in LCMAs 3, 4, and 5. The preamble and 
classification section of this final rule summarize the impacts and the 
cost effectiveness of the selected management actions on small entities 
and the economy. The FSEIS for this action thoroughly discusses and 
evaluates the effectiveness of each of the four historic participation 
alternatives to achieve the ISFMP and Atlantic Coastal Act objectives 
(see ADDRESSES).

Effort Control Alternatives in Areas 3, 4, and 5

Final Measures Selected

    NOAA Fisheries will implement measures aligned with alternatives 
identified in theFSEIS for this action. Note that most measures will 
apply to Federal permit holders who fish only in specific management 
areas. The following is a summary of the major actions, each action 
will be discussed in further detail later in this document.
    1. NOAA Fisheries will implement measures to control fishing effort 
as determined by historical participation in the American lobster trap 
fisheries conducted in the offshore Area 3 and in the nearshore Areas 4 
and 5, but will also establish a maximum trap limit of 1,440 traps for 
vessels qualifying to fish with traps in LCMA 4 and 5 as outlined in 
the DSEIS selected Alternative 1D. Although not recommended by the 
Commission, NOAA Fisheries will implement the trap limit to preclude 
excessive trap fishing effort to the lobster resource and comment 
received during this rulemaking. NOAA Fisheries believes the removal of 
existing trap limits in Areas 4 and 5 (800 lobster traps per vessel 
under current Federal regulations), without implementation of an 
alternative trap limit, would likely result in excessive lobster 
fishing mortality. Implementation of a maximum trap limit in Areas 4 
and 5 of 1,440 lobster traps per vessel, in combination with the 
proposed qualification criteria for participation in the Areas 4 and 5 
trap fishery, may preclude excessive trap fishing effort and 
corresponding levels of lobster fishing mortality. A maximum trap limit 
in Areas 4 and 5 may also alleviate marine mammal and endangered 
species interactions with lobster trap gear.
    There were three other significant alternative solutions considered 
for this action in addition to the selected alternative 1D. With non-
selected alternative 1A, there would be a maximum trap limit and a 
sliding scale trap reduction schedule associated with each vessel 
qualifying to fish with traps in LCMA 3, but this non-selected 
alternative would not establish a maximum trap limit of 1,440 traps for 
vessels qualifying to fish with traps in LCMA 4 and 5. Under the No 
Action non-selected alternative 1B, American

[[Page 14905]]

lobster would continue to be managed in Federal waters under the 
current fixed trap limit provisions of existing regulations of the 
Atlantic Coastal Act (50 CFR part 697). Under existing regulations (50 
CFR 697.4(a)(7)), qualified vessels may elect to fish with traps in any 
or all LCMAs, and trap allocations are based on this election. If a 
permit holder elects to fish in any Nearshore LCMA, or any Nearshore 
LCMA and LCMA 3, the vessel is restricted to a maximum of 800 traps. If 
a vessel elects to fish only in LCMA 3, or in LCMA 3 and the LCMA 2/3 
overlap, the vessel is restricted to a maximum of 1,800 traps. Non-
selected alternative 1C, similar in part to the DSEIS alternatives 1A, 
and 1D, would also require evidence of a history ofactive trap fishing 
for each elected area (LCMA 3, 4, and/or 5) during the same 
qualification period, and also includes the Area 3 requirement to 
demonstrate that at least 25,000 lb (11,340 kg) of lobster were 
harvested throughout the range of the resource during the qualifying 
year, however under non-selected alternative 1C, there would be 
fixedtrap limits of 800 and 1800, the same as those described in the 
no-action/status quo non-selected alternative 1B.
    2. NOAA Fisheries will implement a mechanism for conservation 
equivalency and associated trap limits for owners of vessels in 
possession of a Federal lobster permit (permit holders) fishing in New 
Hampshire State waters. This regulatory action will modify Federal 
regulations to allow Federal permit holders who elect to fish in Area 1 
and also possess a New Hampshire full commercial lobster license to 
fish 400 additional lobster traps in New Hampshire state waters in 
addition to the 800 lobster traps they may fish in state and Federal 
waters of Area 1 under current Federal regulations. However, these 
fishermen would not be allowed to fish more than 800 lobster traps in 
the Federal waters of Area 1.
    Two alternatives to address LCMA 1 trap limits for Federal lobster 
permit holders fishing in New Hampshire waters were presented for this 
action in the SEIS. Under the Atlantic Coastal Act, The selected DSEIS 
alternative 2A, implement measures to allow Federal permit holders who 
fish for lobster in LCMA1 and who also possess a New Hampshire full 
commercial lobster fishing license to fish a maximum of 400 additional 
traps only in the state waters of New Hampshire as specified in New 
Hampshire state regulations to complement the ISFMP; or continue the no 
action/status quo non-selected DSEIS alternative 2B that, under current 
Federal regulations, restrict Federal permit holders who elect to fish 
in LCMA 1, or any other Nearshore LCMA and LCMA 3, to a maximum of 800 
traps, regardless of whether they fish in state or Federal waters. The 
selected DSEIS alternative 2A, will allow Federal permit holders who 
fish for lobster in LCMA1 and who also possess a New Hampshire full 
commercial lobster fishing license to fish a maximum of 400 additional 
traps only in the state waters of New Hampshire as specified in New 
Hampshire state regulations.
    3. NOAA Fisheries will clarify lobster management area boundaries 
in Massachusetts waters. With this action, NOAA Fisheries will 
implement compatible boundary lines for Area 1, Area 2, and the Outer 
Cape Area that are compatible to the Commission's American lobster 
ISFMP.
    Due to the unique nature of the alternatives relating to the 
regulatory actions to address LCMA boundary clarifications, only two 
alternatives were presented for this action in the SEIS:Implement 
measures to complement the ISFMP, the selected DSEIS alternative 3A and 
revise the boundary lines for three of the LCMAs adjacent to 
Massachusetts, including Area 1, Area 2, and the Outer Cape Area,; or 
continue the no action/status quo alternative, the non-selected DSEIS 
alternative 3B and maintain the existing Federal boundary lines for all 
LCMAs including the three LCMAs adjacent to Massachusetts:LCMA 1, LCMA 
2, and the Outer Cape LCMA. NOAA Fisheries selected the DSEIS 
alternative 3A in keeping with the intention of the Atlantic Coastal 
Act to implement complementary regulations to maintain consistency with 
the Commission's American lobster ISFMP and to avoid confusion if the 
Federal and Commission area boundaries and their associated lobster 
management measures differ.
    4. NOAA Fisheries includes a technical amendment to the regulations 
clarifying that Federal lobster permit holders must attach federally 
approved lobster trap tags to all lobster traps fished in any portion 
of any management area (whether in state or Federal waters). This 
requirement is not new, but was not previously clearly specified in the 
regulatory text, and this technical amendment is intended to make the 
regulations easier to understand.

Area 3, 4, and 5 Fishing Effort Control Program

    The Lobster Management Areas are defined at 50 CFR 697.18. A copy 
of a map showing the American lobster EEZ management areas is available 
upon request from the Director of the State, Federal and Constituent 
Programs Office (see ADDRESSES).

Area 3--Qualification Criteria

    In order to qualify to fish for lobster with traps in Area 3, 
Federal lobster permit holders will need to meet or exceed both a 
landing and fishery intensity threshold. With this action, NOAA 
Fisheries will limit the number of traps fished in Area 3 based on 
proof of historical participation in the Area 3 fishery and the number 
of traps fished by a vessel during a qualifying period from March 25, 
1991, through September 1, 1999. Qualification criteria for Area 3 are 
specified in Sec.  697.4(a)(7)(vi) of this rule. Extensive discussion 
regarding selection of the Area 3 qualification criteria, qualification 
period, and the landing and fishery intensity threshold, was presented 
in the FSEIS prepared by NOAA Fisheries for this rule and is not 
repeated here (see ADDRESSES).

Area 3--Trap Allocation Criteria

    A maximum allocation of 2,656 lobster traps with the associated 
sliding scale reductions over a 4-year period was recommended by the 
Commission to NOAA Fisheries as a result of Addendum II to Amendment 3 
of the ISFMP. The selection of 2,656 traps and the corresponding matrix 
of trap allocations as identified in Table 1 specified in Sec.  
697.19(b)(2) of this final rule were developed by the Area 3 LCMT. 
Discussion of the matrix of initial maximum trap allocations was 
provided in the FSEIS/RIR/FRFA prepared by NOAA Fisheries for this 
final rule and is not repeated here (see ADDRESSES).

Areas 4/5 Fishing Effort Control Program with a Maximum Trap Limit

    In order to qualify to fish for lobster with traps in Area 4 or 
Area 5, Federal lobster permit holders will need to meet or exceed a 
fishery participation threshold. NOAA Fisheries will limit the number 
of traps fished in Area 4 and/or Area 5 based on proof of historical 
participation in the Area 4 and Area 5 fishery and the numbers of traps 
fished by a vessel during a qualifying period from March 25, 1991, 
through September 1, 1999. This particular threshold for Area 4 and 5 
is identical to the Area 3 qualification threshold specified in Sec.  
697.4(a)(7)(vi) of this final rule.
    Although establishment of criteria based on a specific minimum 
number of traps fished by a vessel during the qualifying period was not 
specifically

[[Page 14906]]

recommended by the Commission, the criteria certainly fall within the 
general recommendation that individuals must prove historical 
participation. In leaving the details to the Federal Government, the 
Commission gave NOAA Fisheries the ability to achieve some 
standardization in its management regime, not only an important 
practical consideration, but also a relevant consideration under the 
National Standards, particularly National Standards 3 and 8. Note that 
this same deliberative process resulted in NOAA Fisheries failing to 
include a landing requirement in Area 4 or Area 5 as it did in Area 3. 
NOAA Fisheries received commentary that 25,000 lb (11,340 kg) landed 
might not, in all circumstances, be a reasonable indicator of 
historical participation, particularly the further south one fished in 
the area. Accordingly, NOAA Fisheries did not use that criterion in 
this area.
    Commission recommendations for the Areas 4 and 5 fisheries, unlike 
those for the Area 3 fishery, do not contain either trap limits or trap 
reduction schedules. Although not recommended by the Commission, NOAA 
Fisheries is imposing a trap limit not to exceed 1,440 lobster traps 
per vessel to preclude excessive trap fishing effort on the lobster 
resource, and in response to public comment on this action.

Area 3, 4 and/or 5--Qualification and Trap Allotment Process

    After an analysis of landings, vessel trip report records, and 
permit histories, NOAA Fisheries may notify permit holders by letter of 
information NOAA Fisheries has regarding one or more of the historic 
participation criteria specified in this final rule. That is, if NOAA 
Fisheries has its own clear and convincing documentation relating to an 
element of a vessel's historical participation, the agency may in its 
discretion relieve the potential applicant of the need to document that 
element in its initial notice. However, NOAA Fisheries will not 
automatically issue any pre-qualification permits; any person or entity 
wishing to receive a historical participation allocation to fish with 
traps in Areas 3, 4, and/or 5, must submit a signed application and 
furnish the appropriate documentation necessary to demonstrate 
eligibility. Potential qualifiers must provide credible documentation 
as proof of each of the qualifying elements. At the same time, the 
potential qualifiers must also credibly document the number of traps 
fished at any one time in Areas 3, 4, and/or 5 during the qualifying 
year. The documentation and eligibility criteria for Areas 3, 4, and 5 
are specified in Sec.  697.4(a)(7)(vi through viii) of this final rule. 
Discussion concerning selection of appropriate documentation and 
eligibility criteria was provided in the FSEIS/RIR/FRFA prepared by 
NOAA Fisheries for this final rule and is not repeated here (see 
ADDRESSES).
    NOAA Fisheries anticipates that the submitted documentation will 
vary in form, content and legibility. However, this documentation must 
be dated, created on or about the date of the activity described in the 
document, and must be clearly attributable to the qualifying vessel. A 
clear relationship may include a vessel name, state or Federal permit 
number, Coast Guard documentation number, or the name of the owner of 
the vessel at the time being used as the qualification period. NOAA 
Fisheries will require that each potential qualifier explain his or her 
proof in a cover letter to be included along with the submitted 
documents. Illegible documents will not be considered by NOAA 
Fisheries. Further, submission of falsified information would subject 
the applicant both to general sanction, including revocation of his or 
her federal lobster permit as well as to prosecution under the 
applicable law.

Area 3/4/5--Qualifying for More Than One Lobster Management Area

    Any Federal lobster permit holder applying for access to more than 
one of the 3 areas (Areas 3, 4, or 5) must use the same qualifying year 
for all areas in order to avoid a combined allocation greater than the 
number of traps that the permit holder ever fished with any one vessel 
at any one time during any one year. In addition, the current 
requirement that Federal permit holders who elect to fish in multiple 
areas must abide at all times by the most restrictive regulations, 
including trap allocations, in any one elected area regardless of the 
area being fished, will remain in effect. The Commission Lobster 
Management Board, in consultation with the states and LCMTs, is 
evaluating alternative options to the most restrictive regulations 
concerning trap allocations for vessels fishing in multiple Areas. 
However, no recommendation has been made at this time, and there is no 
clear consensus on a preferable alternative to the current measures in 
place. NOAA Fisheries may evaluate this issue further in future 
rulemaking at such time as the Commission reaches a consensus and 
provides a recommendation to NOAA Fisheries concerning a waiver of the 
most restrictive trap allocation.

Areas 3, 4, and/or 5 Appeals.

    If NOAA Fisheries denies an Area(s) 3, 4, and/or 5 permit after the 
potential qualifier undergoes the application process specified in this 
final rule, that person may appeal the denial to the NOAA Fisheries 
Regional Administrator. There will only be two grounds for appeal. The 
first is that NOAA Fisheries erred in concluding that the vessel did 
not meet the stated criteria for the Area in question. This basis for 
appeal would provide a mechanism for correcting an improper finding 
based upon NOAA Fisheries clerical error. The second basis of appeal is 
that of documentary hardship. In order to appeal on this basis, the 
appellant must have first applied in the manner set forth in the 
application for historic participation specified in this final rule and 
been denied by the NOAA Fisheries Regional Administrator because of an 
inability to document the qualifying criteria.
    An appeal based on documentary hardship must establish two 
elements:(1) The appellant must document the nature of the hardship; 
and (2) the appellant must establish the necessary qualification and 
trap allocation elements by affidavit.
    First, as to documenting the nature of the hardship, it is not 
enough to simply indicate that the applicant no longer possesses the 
necessary records. The hardship must have been caused by factors beyond 
the applicant's control. Such a hardship would need to be corroborated 
by independent documents, such as by insurance claims forms or police 
and fire reports. Failure to create the document in the first instance, 
or simple loss of the document, or the intentional destruction or 
discarding of the document in the past by the appellant would not 
constitute grounds for a hardship under this action.
    Second, after claiming and documenting hardship beyond his or her 
control, the appellant would then need to submit to NOAA Fisheries 
affidavits from current Federal permit holders so that three affidavits 
corroborate each of the qualification criteria specified for Area 3 in 
Sec.  697.4(a)(7)(vi), for Area 4 in Sec.  697.4(a)(7)(vii), and/or for 
Area 5 as indicated in Sec.  697.4(a)(7)(viii). The Federal permit 
holder need not necessarily be a lobster permit holder, although he or 
she may be. Each affidavit must clearly specify in separate and 
specific paragraphs:(1) The name, address,Federal permit number and 
vessel of the person signing the affidavit; (2)that the person signing 
the affidavit can attest to by personal first-handknowledge that the 
qualifying vessel set, allowed to soak, hauled back and re-set at least 
200 lobster traps

[[Page 14907]]

during the 2-month period in the qualifying year in the area being 
selected by the applicant, identifying those months and that year and 
further identifying the nature of that knowledge; (3)for Area 3 only, 
that the person signing the affidavit can attest to by personal first-
hand knowledge that the qualifying vessel landed at least 25,000 pounds 
oflobster during the qualifying year, identifying that year and further 
identifying the nature of that knowledge; (4) that the person signing 
the affidavit can attest by personal first-hand knowledge to the total 
number of traps that the applicant claims his or her vessel fished in 
the area in question during the qualifying year and further identifying 
the nature of that knowledge; (5) that the person signing the affidavit 
also fished in the area being claimed by the applicant during the 
months in the qualifying year chosen by the applicant; and (6) be 
signed under the penaltiesof perjury. Further, at least one affidavit 
must also corroborate the basis for the hardship claimed by the 
appellant, for example, by a representative of the insurance agency, 
police, or fire department if the hardship was the result of a flood or 
fire. The person signing this last affidavit need not be Federalpermit 
holder, although he or she may be if the individual has personal 
knowledge of the hardship claimed by the applicant. Hence the potential 
for four (4) affidavits:if none of the three Federal permit holders can 
also document the hardship, then the appellant could submit a fourth 
affidavit from a non-permit holder to do so. Additional affidavits 
beyond that outlined herein are not necessary and will grant the 
appellant no advantage. In other words, if three (or four, depending on 
the circumstances) affidavits establish the required elements, then 
additional affidavits are superfluous and will be given no extra 
weight. All affidavits must be signed under the penalties of perjury. 
As with submissions under the initial qualification process, any person 
submitting false information, including the permit holders submitting 
the supporting affidavits, will be subject to general sanction, 
including revocation of his or her Federal permit and further 
prosecution under applicable law, including the Magnuson-Stevens Act 
and the Atlantic Coastal Act.

Historic Participation Implementation Analysis

    The stated qualification process for Areas 3, 4, and/or 5 specified 
by measures in this final rule was the product of considerable 
deliberation. NOAA Fisheries' challenge was to create a limited access 
rule in Areas 3, 4, and 5 within the parameters of the Commission's 
Addendum I historical participation model and consistent with the legal 
requirements set forth in the Atlantic Coastal Act and other laws. 
Simply put, NOAA Fisheries' charge was to design a practical process 
that was flexible enough to qualify permit holders who met the relevant 
criteria and yet strict enough to keep out those who did not.
    Any potential qualification process in the lobster fishery would be 
complicated by the lack of documentary uniformity in the industry. NOAA 
Fisheries, in the DSEIS stage of this rulemaking process, noted with 
concern the lack of uniform mandatory reporting in the industry. The 
proposed qualification scheme is similar but slightly more rigid in its 
initial review than that which was identified in the DSEIS for this 
action. Specifically, the proposed scheme requires specific document 
types as proof, whereas the DSEIS left the proof open-ended by merely 
stating that certain types of documents ``may be'' used and leaving it 
up to the ``discretion'' of the applicant to choose the most 
appropriate type. NOAA Fisheries made this change because it believed 
that the less specific DSEIS language provided insufficient guidance 
and definition to both the applicant and the NOAA Fisheries' reviewer.
    NOAA Fisheries did, however, consider that some potential 
qualifiers may be denied access in this more rigid process because 
they, through no fault of their own, no longer had the documents 
specifically required under the proposed scheme. To ameliorate the 
harshness of such an eventuality, NOAA Fisheries considered an appeal 
on the basis of documentary hardship. The documentary hardship appeal 
attempts to soften for some the rigidity of the proposed action's 
strict documentation scheme, while still maintaining standards that 
would prevent trap fishing access to those who have not historically 
fished in Areas 3, 4, and/or 5. An appeal based upon documentary 
hardship for reasons beyond the applicant's control adds flexibility to 
the process without undermining the rule's effectiveness. The appellate 
parameters may have harsh impacts for some--e.g., for applicants 
lacking documents due to inadvertence, carelessness or excusable 
neglect--but inclusion of individuals who would qualify but for reasons 
beyond their control appears to be a just, logical, and reasonable 
place to draw such a line. On balance, NOAA Fisheries considers the 
proposed documentation and qualification scheme to be both practical 
and just, and believes that it otherwise supports the Commission's 
lobster management regime, is compatible with Addendum I and is 
consistent with the applicable laws. Additional discussion on the 
proposed documentation and qualification scheme was provided in the 
FSEIS/RIR/FRFA prepared by NOAA Fisheries for this final rule (see 
ADDRESSES).

Area 1 Trap Limits for NH Lobster License Holders

    With this action, NOAA Fisheries will waive the requirement that 
Federal lobster permit holders must abide by the stricter of either 
Federal or state lobster management measures with respect to the number 
of lobster traps for Federal lobster permit holders who elect to fish 
in Area 1 and who fish 1,200 traps under a valid New Hampshire full 
commercial lobster license for Area 1. Specifically, NOAA Fisheries 
will not make any change in the number of traps allowed to be fished in 
the Federal waters of Area 1. However, a New Hampshire full commercial 
lobster licensee fishing aboard a federally permitted vessel will be 
allowed to fish an additional 400 lobster traps in New Hampshire state 
waters.

Procedures for Consideration of Conservation Equivalency Measures

    The ISFMP includes a provision which allows states to request 
approval, from the Commission, of management measures different from 
selected measures which otherwise would be required to satisfy state 
compliance with the plan. The New Hampshire proposal for conservation 
equivalent trap limits is a case in point. In October 1998, the 
Commission approved such a proposal from the State of New Hampshire 
and, as a result, the Commission has requested NOAA Fisheries to modify 
Federal lobster regulations. While NOAA Fisheries acknowledges the 
importance of the conservation equivalency, and the flexibility this 
provision allows to address unique socio-economic situations in state 
jurisdictions, complications arise when this results in a divergence 
between state and Federal regulations affecting operations of fishermen 
who possess both a state and Federal lobster permit. As in the present 
case, this will necessitate consideration of complementary regulations 
in the EEZ through lengthy Federal rulemaking and public comment 
procedures. Consequently, continued approval of conservation equivalent 
proposals under the ISFMP which necessitate complementary Federal 
rulemaking, if

[[Page 14908]]

left unchecked, could inadvertently increase the complexity of Federal 
regulatory involvement and undermine the management of a resource which 
is harvested predominantly in waters under state jurisdiction.
    To address this concern, regulatory action will clarify a procedure 
by which NOAA Fisheries will consider such recommended conservation 
equivalent modifications to Federal lobster regulations as they may 
pertain to the activities of Federal lobster permit holders from the 
affected state(s). Specifically, NOAA Fisheries will only consider 
future Commission conservation equivalency recommendations that are 
formally submitted to the agency in writing by the Commission and that 
contain supporting information deemed necessary to address federal 
rulemaking requirements. NOAA Fisheries believes that receiving the 
supporting information and analyses along with a recommendation for 
Federal implementation of conservation equivalent measures is necessary 
to enable NOAA Fisheries to respond to recommendations for Federal 
rulemaking in a more timely and efficient manner. Procedures to address 
future conservation equivalency recommendations have not changed from 
procedures identified in the proposed rule (67 FR 287) completed for 
this action, and are specified in Sec.  697.25(b) of this final rule.

Lobster Management Area boundary clarification

    In Addendum I to Amendment 3 to the American Lobster ISFMP, the 
Commission revised the boundary lines for three of the LCMAs adjacent 
to Massachusetts, including Area 1, Area 2, and the Outer Cape Area, to 
bring the area boundaries more in line with traditional fishing 
practices in those areas and to correct an oversight in the 
specification of an Area 1 boundary line in Amendment 3 to the ISFMP. 
There have been no changes in the boundary descriptions from the 
proposed rule (67 FR 287) completed for this action. Updated boundary 
coordinates are specified in Sec.  697.18 of this rule.

Summary of Public Comments Received in Response to the American Lobster 
Proposed Rule Published on January 3, 2002

    The Proposed Rule was published in the Federal Register on January 
3, 2002, and comments were initially solicited until February 19, 2002. 
Upon request of the Atlantic States Marine Fisheries Commission 
(Commission) to allow the Commission's Lobster Board to discuss the 
rule at their previously scheduled meeting on February 17 and allow 
ample time to submit written comments, NOAA Fisheries extended the 
comment period until February 28, 2002. Comments were solicited on 
potential changes to the Federal lobster regulations as described in 
the Proposed Rule including the proposed implementation of a program to 
control fishing effort as determined by historical participation in 
Lobster Conservation Management Areas (LCMAs/Areas) 3, 4 and 5; a 
mechanism for conservation equivalency and associated trap limits for 
owners of vessels in possession of a Federal lobster permit fishing in 
New Hampshire state waters; and clarification of lobster management 
area boundaries in Massachusetts waters. The Proposed Rule also 
included a technical amendment to the Federal regulations clarifying 
that Federal lobster permit holders must attach federally approved 
lobster trap tags to all lobster traps fished in any portion of any 
management area, including state waters.
    A total of 190 comments were received by NOAA Fisheries in response 
to the Proposed Rule. Twelve of these comments were submitted by six 
state fisheries agencies, four fishermen's associations, one state 
senator, and one state governor. The remainder of the comments were 
received from members of the general public.
    Of the 190 total comments, 125 favored either the entire Proposed 
Rule or, specifically,historical participation as a means of limiting 
future access to fish with traps in LCMAs 3, 4, or 5. Thirty-one 
commenters expressed general support for the Proposed Rule with 26 
generally opposed to it. Seventeen individuals wrote in general 
opposition to historical participation as a means of limiting future 
access to fish with traps in LCMAs 3, 4, or 5, and 35 comments were 
received in opposition to the historical qualification criteria as 
presented in the Proposed Rule. Of the total comments, those that 
specifically related, either pro or con, to a particular lobster 
conservation management area are as follows. Relative to LCMA 3, 91 
comments were received in support of the historical participation 
recommendations of the Area 3 LCMT and seven were received in 
opposition to historical participation in LCMA 3. Three respondents 
support historical participation as a means to limit access to fish 
with traps for either LCMA 4 or LCMA 5 or both. No comments were 
received in opposition to historical participation in LCMA 4 and 5. 
Twenty comments were received in support of the New Hampshire 
conservation equivalent trap allocations while 13 respondents commented 
in opposition to this measure. One individual commented in opposition 
to the proposed area boundary changes.
    All comments were carefully considered. Specific questions, 
concerns, opposition to elements of the Proposed Rule, and comments on 
measures not presented in the Proposed Rule such as gauge increases, 
maximum size requirements and v-notching, are more thoroughly addressed 
in this section.

Historical Participation Comments (HP)

    HP Comment 1: Ninety-one individuals wrote in support of a 
historical participation program in Area 3 and 78 additional comments 
were received in support of the Area 3 trap reduction schedule 
presented in the Proposed Rule. Three respondents support historical 
participation for either Area 4 or Area 5 or both.
    Response: NOAA Fisheries intends to implement a historical 
participation effort control program in LCMAs 3, 4 and 5 compatible 
with that recommended by the Commission and developed by the LCMTs and 
consistent with the National Standards set forth in the Magnuson-
Stevens Act (MSA), with some variation. NOAA Fisheries believes that 
this management program is a fair and equitable means of implementing 
the necessary management measures in consideration ofLCMT and 
Commission recommendations.
    HP Comment 2: Seven comments were received in opposition to 
historical participation in LCMA 3.
    Response: See response to Comment 1.
    HP Comment 3: Three supporters of historical participation 
recommend that historical participation be implemented but that flat 
trap allocations be maintained.
    Response: Historical participation with fixed trap limits was 
analyzed as non-selected alternative 1C of the FSEIS (see Section 3 of 
the FSEIS for more detail). This non-selected alternative would impose 
a greater economic impact, compared to the selected action, on those 
Federal permit holders who have historically derived a higher income 
from increased lobster harvest from fishing a number of traps in excess 
of the fixed trap limits. Also, this non-selected action would impact 
twice as many Federal permit holders by requiring them to fish a 
reduced number of traps, than would the proposed action. Historical 
trap allocations under the proposed action can be effectively enforced 
through a trap tagging

[[Page 14909]]

program, similar to what is currently in place coastwide. The non-
selected alternative 1C would impose a lower administrative burden 
since documentation in support of historical trap levels would not need 
to be submitted or analyzed. On balance, the proposed action is more 
compatible with the recommendations of the Commission for Federal 
management.
    HP Comment 4: One Commenter suggests that the current Federal trap 
limits be maintained without historical participation.
    Response: This scenario was analyzed and rejected in the FSEIS as 
non-selected DSEIS alternative 1B. (No Action/Status Quo). By not 
implementing historical participation in Areas 3, 4 and 5, NOAA 
Fisheries would not be compliant with the mandate to implement measures 
compatible with the Commission's ISFMP as mandated in the Atlantic 
Coastal Fisheries Cooperative Management Act (ACA). Further, the 
process of analyzing the specific options used the best available data 
and it is NOAA Fisheries' best estimate that trap reductions are likely 
under the selected action and that an appropriate reduction in fishing 
effort will be realized when these measures are implemented. Fixed trap 
limits without historical participation will not cap trap fishing 
effort and reduce effort shifts to other management areas and will 
compromise the ability of the ISFMP to rebuild American lobster stocks 
and end overfishing of the lobster resource.
    HP Comment 5: Eight respondents are opposed to the qualification 
period for determining eligibility under historical participation that 
would require a vessel to have participated in the lobster trap fishery 
in Areas 3, 4 or 5 during the period from March 25, 1991, to September 
1, 1999.
    Response: NOAA Fisheries believes this qualification period is fair 
and will result in the qualification of a set a vessels that reflects 
the historical nature of this fishery. The first date, March 25, 1991, 
was recommended by the Commission and was originally established as a 
control date by the New England Fishery Management Council to determine 
eligibility for future access to the Federal lobster fishery. The 
second date, September 1, 1999, is the date of publication of an 
Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register 
that informed the public that NOAA Fisheries was considering that date 
as a potential cut-off date for determining eligibility for future 
access to LCMAs 3, 4 and 5. Accordingly, NOAA Fisheries believes that 
all had notice of the potential for limited access, that the period is 
broad enough to include those whose personal circumstances required 
unavoidable temporary absence (e.g. illness, etc.), and that it will 
result in the accurate qualification of permit holders based upon 
historical participation. If the commenters are suggesting that those 
who fished in these areas prior to 1991 but abandoned the fishery 
thereafter, NOAA Fisheries disagrees that these permit holders should 
qualify based on the historical participation model recommended by the 
Commission. If, however, these commenters are only referring to those 
who fished both prior to 1991 as well as currently, then NOAA Fisheries 
believes that these individuals will, in fact, qualify because they 
likely fished at least one season during the nine years in between. 
Certainly, NOAA Fisheries received no comments suggesting that long 
absences were typical, or that they even occurred at all for those who 
historically fished in these areas.
    HP Comment 6: One individual commented that he would support 
historical participation in Area 3 if the 2,656 maximum trap allocation 
was reduced to 1,800-traps. Offshore lobstermen have been making a 
living at the 1,800 trap level since the year 2000 and a return to 
higher trap allocations will increase the gap between large and small 
operations and create discontent within the fleet.
    Response: If this Commenter is suggesting that historical 
participation be implemented in Area 3 with a fixed trap limit of 1,800 
traps for all qualified vessels, then this concept is the same as the 
non-selected alternative 1C analyzed in the FSEIS -historical 
participation with fixed trap limits (see section 3 of the FSEIS for 
more detail and note the response to HP Comment 3). This non-selected 
alternative would impose a greater economic impact, compared to the 
selected action, on those Federal permit holders who have historically 
derived a higher income from increased lobster harvest from fishing a 
number of traps in excess of the current fixed trap limits. Also, this 
non-selected action would impact twice as many Federal permit holders 
by requiring them to fish a reduced number of traps than would the 
selected action. On balance, the selected action is more compatible 
with the recommendations of the Commission for Federal management.
    However, the commenter may be suggesting that the maximum trap 
allocation associated with historical participation in Area 3 in the 
NOAA Fisheries selected alternative be substituted with an 1,800-trap 
maximum subject to annual reductions under the Commission's Area 3 trap 
reduction schedule. In this case, the commenter's scenario is likely 
even more restrictive than non-selected alternative 1C in the FSEIS, 
since it would subject qualifying vessels to even lower maximum trap 
allocations.
    HP Comment 7: One trawl fisherman, although an advocate of 
historical participation in the lobster fishery, believes that otter 
trawl fishermen with a history of catching lobster should also be 
included in this program and that all gear types be subject to the same 
possession and access limits.
    Response: The LCMTs for Areas 3, 4 and 5 did not develop, and the 
Commission did not recommend to NOAA Fisheries that non-trap gear be 
included in the historical participation program. The NOAA Fisheries 
selected alternative implemented in this final rule is aimed at 
reducing trap fishing effort in the lobster trap fishery and will not 
affect Federal lobster vessels that fish with non-trap gear. Under the 
selected action, non-trap gear lobster vessels will not be required to 
qualify for access to LCMAs 3, 4 and 5 and will not be excluded from 
fishing with non-trap gear for lobster in these areas, or any other 
portion of the EEZ. NOAA Fisheries previously included in the Federal 
regulations a landing limit of 100 lobster per day/500 lobster per trip 
of 5 days or more to address lobster fishing effort in the non-trap 
sector, consistent with the ISFMP.
    HP Comment 8: Discrimination against certain gear types is not 
reasonable, as determined by a recent court decision on monkfish 
concerning differential trip limits. Therefore, allowing a lower 
possession limit for non-trap lobster vessels violates this principal 
established by the court. As such, those who fished non-trap gear 
during the qualification period and had Federal lobster permits should 
retain their right to fish traps if they so choose.
    Response: This final rule is designed to address trap reductions 
and no specific recommendations were provided by the Commission 
concerning Federal action with respect to the lobster non-trap gear 
sector. See previous response.
    HP Comment 9: Two individuals suggest that NOAA Fisheries allow 
those who have always had a Federal lobster permit but do not qualify 
to fish with traps under historical participation (i.e., trawl gear 
fishermen) to have a limited level of participation initially and then 
have full participation in Area 3 once the resource is rebuilt.
    Response: Allowing a baseline number of traps for non-trap gear 
vessels or for non-qualifying trap vessels

[[Page 14910]]

would compromise the intent of the Addendum I to Amendment 3 of the 
ISFMP to reduce trap fishing effort in order to decrease lobster 
fishing mortality. See previous response.
    HP Comment 10: One state agency that supports historical 
participation opposes the transfer of historic trap allocations for 
Areas 4 and 5 because it may make it more difficult to implement trap 
reductions through regulations in the future if these permits and 
associated allocations are transferred (sold). The transfer of history-
based trap limits may also create discrepancies between state and 
Federal regulations if a permit holder who qualifies under the NOAA 
Fisheries for historical participation program in Area 4, for example, 
does not qualify under the State's plan which used a 1991-1998 
qualification period, which differs from the NOAA Fisheries 
qualification period.
    Response: The comment refers to the concept of individual 
transferrable quotas (ITQs), a highly controversial management tool and 
the subject of ongoing Congressional, agency and Commission 
deliberations. The concept of ITQs was not proposed by the Commission 
as part of this action and public comment has not yet been proposed by 
the Commission on this issue. NOAA Fisheries would consider ITQs in 
future rulemaking if recommended by the Commission at a later time.
    HP Comment 11: One state recommends that NOAA Fisheries allow all 
vessels that qualify for access under the historical participation 
program receive a baseline number of traps and then also be eligible 
for their historical allocation. If the Federal permit is subsequently 
transferred, the associated trap allocation reverts to the baseline 
level. The most restrictive of state or Federal regulations can't be 
enforced because NOAA Fisheries issues 880 tags to everyone regardless 
of their state historical allocation. Then, a long-term framework such 
as a total allowable trap allocation program for each management area 
should be considered. That total allocation could be distributed 
equitably as active fishermen divest from the fishery.
    Response: NOAA Fisheries acknowledges the concerns raised by this 
state and is confident that such issues can be resolved through more 
effective state and Federal coordination, including revisiting the trap 
tag memorandums of understanding that NOAA Fisheries has with the 
fisheries agencies of the major lobster harvesting states.
    The State's concept of a baseline allocation for all lobster permit 
holders, while interesting, could compromise the long-term 
effectiveness of historical participation effort reduction measures by 
not restricting access to only those fishermen who have historically 
fished in specific management areas. The Commission has created a task 
force to research and provide recommendations to the Lobster Board 
concerning the ``most restrictive'' rule. NOAA Fisheries intends to 
remain involved in future discussions concerning this and other novel 
management measures such as total trap allocations and trap 
transferability as the Commission moves forward in addressing these 
issues for consideration in the ISFMP. NOAA Fisheries did not 
extensively analyze the State's proposal because it was largely 
conceptual and is outside the recommended management regime adopted 
under Addendum I to Amendment 3 to the ISFMP, the focus of this 
rulemaking and associated analyses, and is believed to be incompatible 
with the recommendations made by the Commission.
    HP Comment 12: One state agency opposed the qualification period 
for Areas 4 and 5. Since there was no prior notification to the 
industry prior to the September 1, 1999, control date that a vessel may 
be restricted from access to certain areas if there was no documented 
history of fishing in that specific area. Federal lobster permit 
holders were advised by the New England Fishery Management Council in 
1991, that they should purchase a vessel with a documented catch and 
effort history, could be limited to that history in the future if 
necessary, and that they could fish anywhere in Federal waters but 
would be held to the more restrictive of state or Federal regulations.
    Response: NOAA Fisheries believes that the qualification period for 
eligibility under this Final Rule is appropriate and consistent to the 
Commission's recommendations, to the extent practicable. Even under the 
State's scenario, a permit holder that followed the Council's 
recommendation to purchase a vessel with history in a specific area, 
and if those areas included either one or more of Areas 3, 4 or 5, that 
vessel would likely qualify for participation under this Final Rule if 
it actively fished (consistent with the qualification criteria 
established in this action) in those areas after 1991 and prior to 
September 1, 1999.
    HP Comment 13: A state agency commented that with the September 1, 
1999, control date vessels with Federal permits that were purchased 
from an area other than Areas 4 or 5, but are now fishing in those 
areas may not qualify for access under this final rule. Therefore, NOAA 
Fisheries should modify the Federal management program to allow any 
individual who purchased a vessel prior to 1999 and relocated that 
vessel to a state abutting Area 4 or 5 to qualify for access to those 
areas based on its fishing and effort history of its previous area. 
This should not be done for Area 3 since this is a coastwide along the 
range of the resource and a vessel with an Area 3 fishing history which 
is relocated to another state at the opposite end of the range and the 
history would be aptly transferrable to the new state.
    Response: NOAA Fisheries believes that the state's suggestion is 
counter to the intent of the historical participation management 
regime. The Respondent is stating that vessels that were purchased with 
a Federal permit with Area 1 history, for example, and began fishing 
for lobster with traps in Area 4 or 5 after September 1, 1999, be 
considered eligible for future access in Areas 4 or 5 because they 
historically fished in Area 1. The historical participation program for 
lobster in Areas 3, 4 and 5 was crafted by the lobster fishing industry 
in these areas in response to the need to end overfishing and rebuild 
stocks of American lobster consistent with the ISFMP and in keeping 
with the advice of the most current stock assessment. While directed at 
capping fishing effort to reduce fishing mortality, historical 
participation is also intended to prevent effort shift into other 
management areas and allow the historical participants of the fishery 
in these respective areas to resume fishing their historical trap 
allocations.
    HP Comment 14: A commenter referenced information in an industry 
newspaper regarding NOAA Fisheries' proposed rule. The article 
indicated that, based on information available to NOAA Fisheries as of 
June 18, 2001, NOAA Fisheries expected between 53 and 117 vessels to 
qualify for Area 3, that 769 vessels elected Area 3 as at least one of 
the areas they desired to fish in, and that 112 vessels selected only 
Area 3. The commenter interpreted this to mean that only those that 
designated exclusively Area 3 would qualify since the 112 estimated to 
qualifyfalls within the expected range of qualifiers (53 - 117), and 
those electing Area 3 in combination with other areas would not 
qualify.
    Response: The data indicating that 769 vessels had selected Area 3 
as at least one of the fishing areas, and the estimate of 112 vessels 
that elected only Area 3, are derived from actual Federal

[[Page 14911]]

fishing permit data from the 2001 Federal fishing year, indicating the 
area designations of Federal lobster permit holders who indicated traps 
as a gear type. Prior to that fishing year, Federal lobster permit 
holders were not required to designate the areas they fished in and, 
therefore, limited data was available on the actual areas that 
Federally permitted lobster vessels fished in. Consequently, the newly 
available area designation information proved useful to NOAA Fisheries 
in determining a basis for analyzing the potential number of qualifying 
and non-qualifying vessels based on recent activity and the most 
current data available. Conversely, the estimate of an expected range 
of 53 to 117 qualifying vessels was initially used in developing the 
Draft Supplemental Environmental Impact Statement (DSEIS) in 2000. At 
that time no Federal permit data was available regarding specific 
lobster management areas fished on a vessel-specific basis since 
Federal lobster permit holders were not required to designate lobster 
management areas. Therefore, this data, provided by the Area 3 LCMT, 
served as the best available data at that time to determine how many 
vessels might qualify. The two data sets are, therefore, not mutually 
exclusive; that is, they support one another in that the LCMT data 
represent actual fishing activity and the permit data represent both 
actual and potential fishing activity. Further, NOAA Fisheries will not 
be basing qualification in Area 3 on the permit area designations as 
this requirement was established after the September 1, 1999, control 
date. A vessel that historically fished in LCMA 3 and in, for example, 
Area 1, will be considered for eligibility under the same criteria as a 
vessel that historically fished in Area 3 exclusively.
    HP Comment 15: A small boat operator in Area 3 feels the trap limit 
is biased in favor of large operators who have historically reaped the 
greatest amount of the resource.
    Response: The proposed action is intended neither to punish nor 
reward past actions, but is a measure directed to ending overfishing 
henceforth. Additionally, it does not necessarily correlate that those 
with larger operations (i.e., bigger boats, more traps) harvest a 
proportionately larger total of the stock than those who fish less 
traps because of a number of variables relating to gear efficiencies, 
tending time, area fished, etc. See FSEIS Section V.1. for more detail. 
To the extent that a vessel historically fished at high trap levels 
(e.g., more than 3,000 traps) that vessel, may experience greater cut 
backs than those vessels fishing less traps, albeit at proportional 
levels. Finally, allowing eligible vessels to fish their historical 
trap allocations, up to a maximum level, is compatible with the 
Commission's recommendations for Federal action in the EEZ.
    HP Comment 16: One individual opposed historical participation 
because it will force lobster fishermen to downsize their operations.
    Response: NOAA Fisheries acknowledges that some fishermen may have 
to downsize given that this action is an effort reduction measure 
recommended by the LCMTs and the Commission. However, if a fisher is 
allocated less traps than currently allowed, then such a reduction will 
be both proportional and consistent with that vessel's historical 
effort. Further, downsizing should not be likely unless that fisher 
increased effort after the control date. See previous response.
    HP Comment 17: One supporter of historical participation recommends 
that qualified permits and the associated trap allocations be published 
in the Federal Register to allow any qualified stakeholder to challenge 
anyone on the list.
    Response: NOAA Fisheries considered but rejected the Commission's 
recommendation to publish a notice that would specify individual trap 
allocations for each Federal permit holder that qualifies to fish LCMAs 
3, 4 and 5 under the historical participation program because this 
raises privacy issues, would serve no constructive purpose and may give 
way to a ``witch trial'' atmosphere. Further, the respondent's comment, 
if different from that recommended by the Commission in this regard, 
offers neither protocol for challenging the eligibility of a permit 
holder nor supporting reasons for incorporating such a measure into the 
qualification process.
    HP Comment 18: One commenter believes that all those who qualify 
for LCMA 3 be subject to the trap reduction schedule, not just those 
that have allocations above 1,200 traps.
    Response: NOAA Fisheries will use the LCMA 3 trap reduction 
schedule, initially adopted into the ISFMP by the Commission in 
Addendum I to Amendment 3 and further modified in Addendum II. That 
schedule did not include provisions for reducing allocations at or 
below the 1,200-trap mark. This is due to the diminishing utility of 
returns from such subsequent trap reductions that are not expected to 
assist in effectively reducing trap fishing effort given the additional 
economic impacts to qualified fishermen. Further, this measure wasn't 
recommended by the Commission for Federal action and, therefore, 
implementation through this final rule would result in inconsistencies 
with the Commission's approved trap reduction measures.
    HP Comment 19: One commenter recommended that only logbooks be used 
as the basis for qualifying permit holders and that no one be admitted 
based solely on an affidavit to substantiate history.
    Response: Due to the varying degree to which certain types of 
documents were historically used throughout the fishery, the proposed 
action gives the potential qualifier flexibility in document 
submission. The use of Federal Vessel Trip Report (VTR) documents to 
support historical fishing effort (number of traps fished and location) 
in the lobster fishery will be possible for the majority of the Federal 
lobster permit holders (e.g., those holding other Federal species 
permits that, unlike lobster permits, require mandatory reporting). A 
review by NOAA Fisheries indicates that of 3,153 Federal lobster permit 
holders in 1997, 1,984 (approximately 62percent) held Federal permits 
for other fisheries requiring mandatory reporting. The utility of these 
reports for documenting lobster fishing effort would be further 
restricted to those permit holders who accurately noted, on the 
reports, the number of individual lobster traps fished on an area-by-
area basis. Similarly, an informal review of the utility of official 
state reports for determination of lobster trapping effort concludes 
that such documents may be relevant only to Connecticut and 
Massachusetts residents (approximately 34 percent of Federal lobster 
permit holders). Therefore, allowing more than just logbooks to be 
submitted will provide more flexibility for Federal permit holders 
given the inconsistencies in logbook reporting requirements, will avoid 
bias on those who held only a Federal lobster permit during the 
eligibility period, and will result in a more accurate qualification 
process.
    HP Comment 20: Seventy-eight comments were received in support of 
the accelerated trap reduction schedule for LCMA 3.
    Response: NOAA Fisheries incorporated the revised Area 3 trap 
allocations and the accelerated 4-year sliding scale trap reduction 
schedule into the final rule to be compatible with the trap reduction 
schedule as updated in Addendum II to Amendment 3 of the ISFMP. The 
updated schedule reduces the maximum trap allocation in Year 1 from 
2,920 to 2,656 traps and accelerates the sliding scale trap

[[Page 14912]]

reduction schedule from five years to four years.
    HP Comment 21: One supporter of historical participation states 
that historical trap allocations are needed because uniform trap limits 
will create latent effort and compromise the conservation benefits of 
historical participation.
    Response: NOAA Fisheries believes that historical participation in 
Areas 3, 4 and 5 is the best means for controlling trap fishing effort 
in these management areas since it is expected to, at least, cap and 
potentially reduce levels of trap fishing in Areas 4 and 5 and reduce 
trap fishing levels in Area 3. Effort reductions as a consequence of 
this action are expected to result in decreased lobster fishing 
mortality, contributing to the fulfillment of the goals of the ISFMP to 
end overfishing and rebuild American lobster stocks. Further, this 
management regime is compatible with the recommendations of the 
Commission in Addendum I to Amendment 3.
    HP Comment 22: One comment was received expressing concern that the 
State of New Jersey's rules weren't coordinated with Addendum I and 
that some who qualified under the State of New Jersey's historical 
participation eligibility program will be allowed different numbers of 
traps under the Federal plan which will cause confusion.
    Response: NOAA Fisheries will continue to cooperate with state 
agencies to the extent practicable and legal to determine the 
eligibility of Federal permit holders to fish in Areas 3, 4 and or 5. 
However, NOAA Fisheries' determination of eligibility for each 
applicant will be based on the specific qualifying criteria and 
documentation as identified in Section III.(2). of the FSEIS, and 
codified, by way of this final rule, in the Federal regulations at 50 
CFR 697.4(a)(7)(vi), (vii) and (viii). These requirements are 
compatible with those proposed by the LCMTs and recommended for EEZ 
implementation by the Commission, of which the State of New Jersey is 
an active participant and voting member.
    HP Comment 23: One proponent of historical participation in Area 4 
recommends a trap cap at 2,400 traps rather than the proposed 1,440 
traps.
    Response: NOAA Fisheries established a 1,440 maximum trap limit as 
a safeguard against trap proliferation. NOAA Fisheries believes the 
removal of existing 800 traps per vessel limit in Areas 4 and 5 without 
implementation of an alternative maximum trap limit, could result in 
excessive lobster fishing mortality and limit the ability of historical 
participation to reduce trap fishing effort. A maximum trap limit in 
Areas 4 and 5 of 1,440 lobster traps per vessel was selected utilizing 
data provided by the State of New Jersey that indicated the majority of 
participants fished less than 1,440 traps (32 of 46 Federal permit 
holders who responded to New Jersey's lobster industry survey). 
Additionally, the 1,440-trap limit corresponds proportionately to the 
relationship between the existing fixed trap limits (800 traps in Areas 
4 and 5, and 1,800 traps in Area 3) and the LCMA 3-maximum trap limit 
proposed by the Area 3 LCMT in Addendum I.
    HP Comment 24: One person stated that New Jersey fishermen need 
more traps in general because there are less lobsters spread over a 
larger area and recommends a 1,500-trap allocation.
    Response: The 1,500-trap allocation recommended by this respondent 
is generally consistent with the maximum trap limit of 1,440 traps per 
qualified vessel in Areas 4 or 5 implemented with this final rule. NOAA 
Fisheries believes that establishing a maximum trap cap will prevent a 
potential escalation of future trap fishing effort and associated 
lobster fishing mortality in Areas 4 and 5, while allowing qualified 
vessels to fish their historical trap allocations as evidenced in data 
provided by the State of New Jersey lobster industry survey. See 
previous response.
    HP Comment 25: Two individuals recommend that NOAA Fisheries limit 
every vessel to 800 traps in Area 4 and 1,200 traps in Area 3.
    Response: The scenario suggested by these individuals runs counter 
to the management recommendations of the Commission and the LCMTs and 
could result in more traps being fished than would be expected under 
the selected alternative, if these commenters are suggesting that 
historical participation not be implemented under this scenario. 
Further, if these commenters are suggesting that historical 
participation not be implemented in these management areas, then the 
potential for effort shift into other lobster management areas could 
occur. Additionally, it is likely that not all vessels are fishing up 
to the current allowable fixed trap limits and, while the selected 
management action would cap effort at historical levels, this suggested 
action (similar to status quo) could allow vessels fishing below the 
current fixed trap limits to expand their trap fishing effort.
    HP Comment 26: One fisherman recommends a 600-trap limit be imposed 
in the Federal waters off the Maine coast.
    Response: Assuming the commenter is referring to Area 1, NOAA 
Fisheries disagrees. This topic is outside the scope of this rulemaking 
and Addendum I and inconsistent with the recommendations for lobster 
management in Area 1 provided by the Area 1 LCMT, the Commission, and 
the ISFMP.
    HP Comment 27: One LCMA 2 lobsterman opposes historical 
participation and recommends that every lobsterman be allocated 500 
traps.
    Response: The Commission has yet to adopt a historical 
participation program for LCMA 2 and has not made any recommendations 
to the Secretary of Commerce that such action be taken in the EEZ 
portions of LCMA 2. Therefore, this measure was not considered in this 
rulemaking action and associated analyses.
    HP Comment 28: A Federal lobster permit holder who has never fished 
for lobster believes that historical participation is unfair and that 
all Federal lobster permit holders should have unlimited access to the 
lobster resource in Federal waters.
    Response: This final rule is the result of extensive public comment 
and is based upon the Commission's ISFMP for American Lobster which 
also underwent extensive public comment. All have had the opportunity 
to engage in and influence deliberations on this matter. Ultimately, 
the LCMTs, comprised of industry representatives, and the Commission, 
made up of a number of politically accountable members, chose a 
management plan that would reflect the historical make-up of the 
fishery. This final rule is based on that decision and conforms with 
the applicable law. The intent of the historical participation 
component of this final rule is to implement a system that caps fishing 
effort at historical levels, likely reduces effort from current levels, 
and reflects the traditional fishing practices of the offshore fishing 
fleet. This selected action considers the recommendations of the 
industry's LCMTs and the Commission aimed at decreasing fishing effort 
and increasing egg production in accordance with the ISFMP. This 
selected action intends to limit participation in LCMAs 3, 4 and 5 to 
those permits with a demonstrated lobster trap fishing history, 
consistent with the eligibility criteria in this final rule and that 
recommended by the Commission in Addendum I to Amendment 3 of the 
ISFMP.
    HP Comment 29: Three individuals request that NOAA Fisheries 
execute the plan as fairly as possible so that no single type of 
business operation benefits over another. Trap allocations

[[Page 14913]]

for qualifiers into Area 3 should be of a smaller range to avoid a 
disadvantage to smaller operations that will have to work harder to be 
competitive against those with larger allocations.
    Response: NOAA Fisheries intends to execute the historical 
participation program fairly and to not give any single type of 
business an unfair competitive advantage over another. Regarding the 
commenter's point concerning Area 3 trap allocations, NOAA Fisheries 
points out that number of traps fished, not necessarily vessel size, is 
the factor that will determine the initial trap allocation of a 
qualified vessel. The historical participation program will not 
discriminate against small vessels. It will allow any vessel with 
demonstrated participation during the qualification period to fish its 
historical allocation of traps up to 1,440 in LCMAs 4 and 5, and up to 
2,656 (with subsequent reductions) in LCMA 3, in order to most 
accurately represent the historical aspects of the trap fishery. See 
previous response. Further, NOAA Fisheries notes that it does not 
necessarily follow that smaller operators have to work harder to 
compete against larger operations that may have higher business 
overhead and other expenses.
    HP Comment 30: A 25-year lobster diver with a state and Federal 
lobster permit believes that history in the fishery should be based on 
participation in general, not just on numbers of traps fished. This 
fisherman is concerned that as age forces him to move from diving, his 
opportunityto fish with trap gear may be lost since he has no trap 
fishing history.
    Response: The selected action is intended to cap effort in the 
lobster trap fishery in LCMAs 3, 4 and 5 in order to rebuild growth-
overfished stocks of American lobster, while reflecting the historical 
make-up of the trap fishery as such occurs. Non-trap fishermen, such as 
those in the otter trawl and dive fisheries, have been, alternatively, 
regulated by possession limits and will continue to have access to any 
or all LCMAs. Further, present information suggests that there is a 
market for vessels and their accompanying Federal lobster permits. 
Therefore, non-qualifiers into the trap fishery in Area 3, 4 and 5 
still have the option to purchase a permit that has previously 
qualified to fish trap gear in these areas.
    HP Comment 31: One individual commented that consideration should 
be given to permit holders who could not fish during the qualification 
period due to illness.
    Response: Comments received by NOAA Fisheries do not indicate that 
long absences in the trap fishery, particularly for 8 or more years, 
were typical. Regardless, the intent of the historical participation 
management program is to decrease fishing mortality by capping and 
reducing trap fishing effort, while allowing those permits that 
currently, and have historically, fished for lobster with trap gear in 
these areas to continue to do so. NOAA Fisheries believes its 
qualification period to be quite fair and will result in qualification 
based upon historical participation in the area fisheries. The first 
date of the qualification period, March 25, 1991, was recommended by 
the Commission and was originally established as a control date by the 
New England Fishery Management Council to determine eligibility for 
future access to the Federal lobster fishery. The second date, 
September 1, 1999, is the date of publication of an ANPR in the Federal 
Register that informed the pubic that NOAA Fisheries was considering 
that date as a potential cut-off date for determining eligibility for 
future access to LCMAs 3, 4 and 5. Accordingly, NOAA Fisheries believes 
that all had notice of the potential for limited access, that the 
period is broad enough to include those whose personal circumstances 
required unavoidable temporary absence (i.e., illness, etc.), and that 
it will result in the accurate qualification of permit holders based 
upon historical participation.
    HP Comment 32:One individual and a state agency commented that the 
25,000 lb (11,340 kg) landing requirement for Area 3 is too high.
    Response: The 25,000 lb (11,340 kg) landing requirement is intended 
to be used as an eligibility requirement for LCMA 3 only, and was 
specifically recommended as an appropriate measure of economic reliance 
on lobstering by the industry experts on the Commission's Area 3 LCMT. 
In opposition, NOAA Fisheries notes that the commenters did not 
indicate why they disagree with these experts. Under the NOAA Fisheries 
proposed action, these landings may have occurred from anywhere within 
the range of the lobster resource, not just LCMA 3. NOAA Fisheries has 
not included a landing requirement for determining eligibility in LCMAs 
4 and 5. Available information indicates that LCMA 4 and 5 fishermen 
generally participate in a directed trap fishery for lobster on a 
seasonal basis and rely on other fisheries throughout the year in 
addition to lobster. For example, only a relatively small percentage of 
the lobster resource has been historically harvested from LCMAs 4 and 
5, which is consistent with seasonal fishing activity. Accordingly, a 
25,000 lb (11,340 kg) landing threshold may unnecessarily restrict and 
not accurately reflect the historical nature of the fishery in those 
areas. Such is not the case, generally, for historical participants of 
the Area 3 offshore fishery who tend to fish directly for lobster on a 
more full-time basis throughout the year.
    HP Comment 33: An Area 6 Federal permit holder opposes historical 
participation because it will prevent him from being able to shift into 
Federal waters especially now after Long Island Sound lobster die-off 
has substantially reduced lobster abundance in that area. Other gear 
types can move freely, and lobster trappers should be able to do the 
same.
    Response: NOAA Fisheries sympathizes with all those affected by the 
Long Island Sound lobster die-off and notes that it helped administer 
Federal funds to assist those affected who sought assistance. However, 
NOAA Fisheries intends to adhere to the control dates and qualification 
periods as proposed in the FSEIS to decrease fishing mortality by 
reducing fishing effort in LCMAs 3, 4 and 5. To do otherwise as the 
commenters suggest would create an unmanageable exemption incompatible 
with the lobster ISFMP that could significantly undermine the 
effectiveness of the proposed action. These control dates provided 
notice and are, in fact, more liberal than those dates originally 
proposed by the Commission.
    HP Comment 34: One commenter states that several fishermen who 
fished for lobster in Long Island Sound purchased Federal lobster 
permits in 1999 after the die-off, now will not be able to fish in 
LCMAs 3, 4 and 5 because they won't meet the eligibility criteria.
    Response: NOAA Fisheries believes that the selected action set 
forth in this final rule is fair, legal and appropriate. Further, 
depending on when, and the extent to which these individuals began 
fishing in Areas 3, 4 or 5 in 1999, there still remains the potential 
to qualify based upon historical participation depending on the 
individual circumstances. See previous response.
    HP Comment 35: One state agency (New Jersey) recommends an 
extension of the NMFS September 1, 1999, control date and disagrees 
with the proof of fishing 200 lobster traps over a 2-consecutive month 
period as an eligibility criterion for historical participation and 
recommends documentation by annual landings instead.
    Response: As to the control date, see response to HP Comment 31. 
With regard to the 200 lobster traps fished over a 2-consecutive month 
period

[[Page 14914]]

criterion, the LCMTs recommended, and the Commission adopted this 
criterion as part of Addendum I. NOAA Fisheries is required to 
implement regulations that are compatible with the Commission's ISFMP. 
Third, the State of New Jersey offers no evidence to suggest that 
landings would be a more accurate indicator of trap fishing effort, 
which is the focus of New Jersey's criterion. See responses to HP 
Comments 12, 13 and 31.
    HP Comment 36: A state recommends that NOAA Fisheries replace the 
1,440-maximum trap allocation in Areas 4 and 5 with 3,250-maximum trap 
allocation since many vessels that historically fished in those areas 
had fished more than 1,440 lobster traps.
    Response: See responses to HP Comments 23 and 24.
    HP Comment 37: Historical participation will negatively affect 
value of vessels and permits for those who don't qualify and will 
benefit only the few fishermen that have access to the resource in 
certain areas.
    Response: This comment is hypothetical and engages in 
characterizations, although NOAA Fisheries acknowledges that any 
limited access program could, in certain instances, negatively affect 
the value of non-qualifying permits and positively affect the value of 
qualifying permits. However, the commenter is implying an element of 
unfairness, which NOAA Fisheries disagrees with (see HP Comments 28 and 
29).
    HP Comment 38: One commenter stated that current fixed trap limits 
are working and only more effective enforcement of the trap limits is 
needed.
    Response: Fixed trap limits in the EEZ portions of Areas 3, 4 and 5 
were implemented as an interim measure by NOAA Fisheries to cap effort 
in these areas until the concept of historical participation could be 
adequately analyzed and to allow for public comments on the issue. The 
latest stock assessment information indicates that the lobster resource 
is overfished and the measures adopted in the ISFMP, including 
historical participation in Areas 3, 4 and 5, were adopted to end 
overfishing and rebuild the lobster resource. Further, the Commission 
has adopted a trap tagging requirement to enforce trap limits 
coastwide. NOAA Fisheries has implemented this measure and will carry 
this forward as a means of enforcing historical trap allocations, with 
effective results expected. NOAA Enforcement has consistently 
cooperated with state marine enforcement agencies to enforce the trap 
limits with commendable results and will continue to do so.
    HP Comment 39: Two individuals commented that NOAA Fisheries should 
cooperate more with state agencies in an effort to better enforce trap 
limits.
    Response: As stated in the previous response, NOAA Fisheries 
intends to continue to cooperate with state and other Federal agencies 
in enforcing trap limits. NOAA Fisheries has proactively pursued such a 
relationship by initiating and continuing communications with state 
agencies and the Commission regarding the implementation and 
enforcement of trap limits through the coastwide trap tag program. This 
action has resulted in the development of memorandums of understanding 
between NOAA Fisheries and several of the lobster producing states to 
facilitate the issuance and enforcement of trap tags and to promote the 
exchange of the resulting data between agencies. However, NOAA 
Fisheries believes that this issue extends beyond the mere state/
Federal relationship. The states must also cooperate with each other 
and with the Commission to ensure that both the stated directives and 
unstated intents of Amendment 3 and Addenda I-III are carried out.
    HP Comment 40: The owner of a Federal lobster permit with Area 3 
history may not qualify because although history was retained, he does 
not have the records to document it since he did not own the vessel at 
that time and previous owner will not authorize NOAA Fisheries to 
release any related documentation. This permit holder recommends that 
NOAA Fisheries use data from previous permit holders to qualify vessels 
while keeping that information confidential, allow affidavits from 
fishermen and dealers, implement less restrictive documentation 
requirements for vessels purchased at state or Federal auctions between 
1991 to 1999, consider a hardship clause in consideration of years 
fished, capital investments, and economic impact on the community, use 
port agent data or sworn statements from Port Agents regarding permit 
activity during the qualification period.
    Response: NOAA Fisheries acknowledges that, due to a lack of 
mandatory reporting for all Federal lobster vessels and in 
consideration of confidentiality, some permit holders who should 
qualify may have difficulty obtaining the necessary documentation. As a 
preliminary matter, NOAA Fisheries urges permit holders in this 
situation to work with the permit's previous owners to get the 
necessary documentation. NOAA Fisheries, however, is developing a 
moratorium rights qualification system to track the history of a permit 
that submitted Federal VTR data. That information may be disseminated 
to the current permit holder without breaching confidentiality and may 
be used by the current permit holder to substantiate the permit's 
eligibility. As a result of this final rule, the Federal lobster 
regulations at 50 CFR 697.4(a)(7)(vi)(vii) and (viii) identify the 
explicit types of documentation for Areas 3, 4 and 5, respectively, 
that are acceptable to demonstrate the permit's lobster trap fishing 
history, and consider the recommendations of the industry and recognize 
the inconsistent reporting requirements amongst Federally permitted 
vessels. With respect to consideration of hardship, NOAA Fisheries has 
addressed this in the Final Rule by implementing a documentary hardship 
provision as a basis for appeal. This would apply in such cases where a 
permit holder applies for access to Areas 3, 4 or 5 and is denied 
because insufficient documentation in support of the qualification 
criteria is provided. If the necessary documentation no longer exists 
due to no fault of the permit holder, he/she may submit affidavits from 
Federal permit holders attesting to the permit's fishing activity and 
the nature of the loss of the documentation as specified in 50 CFR 
697.4(a)(7)(x).
    HP Comment 41:Two commenters suggest that NOAA Fisheries assure 
that those who bought a vessel with history but the associated 
documentation is not available be able to get the vessel's full 
historical allocation.
    Response: NOAA Fisheries devised a qualification program that would 
consider the potential difficulties that some permit holders may have 
in locating and compiling existing documents. First, the final rule 
incorporates flexibility as to the type of documentation allowable, 
thus increasing the likelihood that an applicant will have one category 
of document if not another. Second, the final rule establishes a long 
qualification period (1991-1999), thereby increasing the opportunity 
that a qualified applicant will have documents for at least one of the 
years. Third, the application submission and extension timeline is 
purposefully broad to provide applicants ample time to compile and 
submit documentation during the application period if they do not have 
ready access to the necessary information. Additionally, frequent and 
timely notification has been provided to permit holders and the public 
since September 1, 1999, that NOAA Fisheries was considering a 
historical

[[Page 14915]]

participation program that would require submission of documentation 
and given such notice, NOAA Fisheries anticipates that most applicants 
have already been gathering their application information.
    NOAA Fisheries also has been reviewing its own data and has 
incorporated into this final rule the ability of an applicant to 
request and use NOAA Fisheries data in the application to the extent 
that the data can establish a qualification criterion. Further, to the 
extent that an applicant is seeking qualification based upon vessel 
history from the activity of a former holder of that permit, NOAA 
Fisheries may be able to review such confidential data without its 
release -- NOAA Fisheries cannot release economic information to 
unrelated entiitles, without consent, due to confidentiality mandates -
- in an effort to qualify the vessel if the data clearly establishes a 
criterion.
    If the documentation no longer exists, then NOAA Fisheries believes 
that the historical participation qualification process established in 
this final rule aptly addresses this as well. This final rule 
establishes an appeals measure whereby a Federal lobster permit holder 
who once possessed the necessary documentation to support historical 
participation but no longer is in possession of that documentation due 
to no fault of the permit holder, can appeal under and ultimately 
qualify under a documentary hardship provision (see previous response 
and 50 CFR 697.4(a)(7)(x) of the Federal regulations as set forth by 
this final rule).
    HP Comment 42: A permit holder whose permit has history in Area 3 
bought the vessel after the fishing activity in that area had occurred 
and had only a lobster permit. Therefore, no Federal vessel trip 
reports exist. Coast Guard boarding reports and IRS records are only 
retained for 3 years and are, therefore, no longer available. Catch 
reports from dealers do not have vessel specific landings and small 
vessels like his had their landings grouped together. Therefore, NMFS 
should not be able to take away the right to fish in an area because of 
unavailable documentation originating from as far back as 10 years ago.
    Response: This final rule does not require an applicant to have 
saved 10 years of documentation to qualify, although in order to 
provide flexibility, NOAA Fisheries allows that applicant to use 10-
year old data if such establishes the necessary criteria. The ability 
to use 10-year old data should, therefore, be considered a benefit to 
applicants, not a burden. See Response to HP Comment 41. NOAA Fisheries 
gave formal notice of the need to retain documents in publishing its 
control date in the Federal Register in September, 1999. Certainly, 
informal notification was available in advance of that date as the 
qualification criteria were created in the Commission's earlier public 
process in developing Addendum I. In any event, if the commenter kept 3 
years of Coast Guard boarding reports and IRS records as indicated in 
the comment, then, as of the control date when participants were 
formally notified to retain records, the commenter would have already 
had documentation for 1996, 1997, and 1998 and would reasonably be 
expected to have saved those documents plus whatever documentation was 
ultimately created in 1999. Under this final rule, the commenter could 
potentially use documentation for any one of those years to qualify.
    HP Comment 43: The years 1999 and 2000 should not be used as 
qualifying years because the lobsters were on the decline and fishermen 
were fishing less gear than normal. Trap fishing activity for the years 
1994 - 1998 is more indicative of traditional numbers of traps fished 
by the lobster fleet in LCMA 2.
    Response: NOAA Fisheries intends to use the portion of 1999 up to 
September 1, for qualification purposes. The remainder of the 1999 
calendar year and the calendar year 2000, in its entirety, will not be 
considered valid periods for demonstrating historical participation in 
LCMAs 3, 4 and 5. The calendar years 1994 through 1998 fall within the 
qualification period implemented by this final rule, but, the commenter 
is reminded that historical participation does not pertain, 
specifically, to LCMA 2 in this action. However, lobster landings in 
LCMA 2 may be used to establish the 25,000 lb (11,340 kg) of lobster 
landed during the qualifying year if the vessel is attempting to 
qualify for access to LCMA 3.
    HP Comment 44: Eleven individuals recommend that for appeals, NOAA 
Fisheries require the applicant to provide an affidavit signed by five 
previously qualified Federal lobster permit holders to document the 
validity of the applicant's claim for either the location for his 
traditional fishing grounds and/or the numbers of traps he claims to 
historically fish.
    Response: NOAA Fisheries recognizes that some potential qualifiers 
may be denied access to the lobster fishery in Areas 3, 4 or 5 due to 
the rigid, but necessary, qualification scheme because they, due to no 
fault of their own, no longer possess the documentation necessary to 
support their eligibility. Accordingly, NOAA Fisheries sought to craft 
an appeal process that is just and allows flexibility in the process 
without diminishing the effectiveness of the final rule. Consequently, 
NOAA Fisheries incorporated a documentary hardship appeal option into 
this rulemaking, whereby the appellant must provide affidavits from 
three Federal permit holders and one affidavit from an individual, 
although not necessarily a Federal permit holder, who can attest to the 
nature of the loss of the documents (See Section III.(2).(C) of the 
FSEIS and 50 CFR 697.4(a)(7)(x) of the Federal regulations as set forth 
by this final rule). The documentary hardship appeals process is 
intended to soften the qualification requirements without compromising 
the ability of the historical participation program to effectively 
allow only historical participants into the Area 3, 4 and 5 lobster 
trap fishery. NOAA Fisheries is sensitive to the potential use of fraud 
as a means to exploit the proposed qualification system. In choosing 
affidavits from three Federal permit holders, NOAA Fisheries sought a 
balance. Requiring just one or two affidavits would be insufficient 
while requiring five affidavits as the commenter suggests, may be too 
difficult to achieve for an appellant from a remote port. NOAA 
Fisheries also broadened the supporting affidavit requirement by 
allowing affidavits from Federal permit holders who are not necessarily 
Federal lobster permit holders, but further defined the requirements by 
requiring proof and corroboration of the hardship through one of the 
affidavits, and potential revocation of the appellant's Federal permit 
in the event of fraud. NOAA Fisheries believes that this is a 
reasonable just and appellate process.
    HP Comment 45: One individual is opposed to requiring an appealing 
applicant to provide affidavits from five qualified permit holders in 
order to substantiate participation.
    Response: See previous response.

Closed Area Comments (CA)

    CA Comment 1: An individual wrote that offshore lobstermen have 
depleted the large lobsters and the inshore New Jersey lobster boats no 
longer catch 5-15 lb (2.3-6.8 kg) lobsters. Therefore, offshore closed 
areas should be established in the Canyons and a maximum size limit 
implemented on lobsters of 5 lb (2.3 kg) or more.
    Response: NOAA Fisheries' analysis of closed areas in the FSEIS 
focused on the LCMA 4 closed areas adopted in Addendum I. The 
Commission did not recommend that NOAA Fisheries

[[Page 14916]]

implement closed areas in other LCMAs that contain deep water canyon 
environments, such as in LCMAs 3 and 5. Therefore, closed areas were 
not further analyzed as a potential management option outside the scope 
of the Commission's recommendations in Addendum I and are not 
incorporated as an element in this Final Rule. Addendum III to 
Amendment 3 of the ISFMP does contain provisions for a maximum size 
requirement in LCMAs 4 and 5 if deemed necessary. NOAA Fisheries will 
analyze these measures under a separate rulemaking action.

New Hampshire Conservation Equivalency Comments (NH)

    NH Comment 1: Twenty comments were received in support of the New 
Hampshire conservation equivalent trap allocations and thirteen 
respondents commented in opposition to this measure.
    Response: The best available information supports the Commission's 
finding that New Hampshire's proposal is a conservation equivalent to 
current management measures. In fact, available information suggests 
that it will actually reduce effort. As such, this action satisfies 
NOAA Fisheries' legal obligations insofar as it is consistent with the 
National Standards and is supportive of the Commission's ISFMP that 
allows conservation equivalency. Accordingly, the NOAA Fisheries' final 
action will allow a New Hampshire full commercial license holder 
fishing aboard a federally permitted lobster vessel to fish an 
additional 400 lobster traps in New Hampshire state waters. This action 
will not result in more traps fished in the Federal waters of LCMA 1.
    NH Comment 2: Three individuals stated that the New Hampshire two-
tiered trap limit that would allow full commercial lobster license 
holders in New Hampshire to fish up to 1,200 traps in New Hampshire 
state waters violates National Standard 4 of the Magnuson-Stevens 
Fishery Conservation and Management Act.
    Response: As a preliminary matter, New Hampshire full commercial 
license holders can fish 1,200 traps irrespective of Federal action 
because the ASMFC's Lobster Board has already approved New Hampshire's 
conservation equivalency request and the state has already implemented 
the program. In any event, National Standard 4 is not triggered because 
this final rule involves no Federal allocative measures. That is, this 
final rule does not create New Hampshire's equivalency program, but 
merely waives the most restrictive Federal regulatory language in order 
to prevent the potential for trap proliferation that would result if 
NOAA Fisheries took no action. In other words, this final rule simply 
reflects the Federal Government's conservation response to a formal 
conservation equivalency recommendation made by the ASMFC pursuant to 
the Atlantic Coastal Act. Put another way, this final rule does not 
endorse or advance the program's measures so much as it deals with 
them.
    The current 800-trap limitation existing in the EEZ in Area 1 
remains unchanged and would not allow any additional lobster traps in 
Federal waters. In fact, analysis of available information suggests an 
actual decrease in traps fished in Area 1, both in the EEZ and in New 
Hampshire State waters. As such, the state measure is self-contained 
and reflects an internal repositioning of traps within New Hampshire 
borders that is not expected to have any extraterritorial impacts or to 
impact citizens of other states. In other words, to the extent, if at 
all, that the increase to 1,200 traps benefits some New Hampshire 
permit holders (see FSEIS Section V.1. for discussion on economic 
effects of trap limitations), then that benefit is not excessive and is 
internally counterbalanced by the New Hampshire permit holders whose 
trap limits will decrease to 600 traps. Accordingly, the measure does 
not differentiate among citizens in different states (which could also 
seek conservation equivalency from the Lobster Board) or advantage the 
citizens of one state over another. Overall, conservation benefits are 
expected in furtherance of National Standard 1 with no corresponding 
degradation of the standards set forth in National Standard 4.
    NH Comment 3: One commenter opposed the New Hampshire conservation 
equivalent trap measures because it will benefit only 22 Federal permit 
holders from New Hampshire and questions its effectiveness in 
contributing toward rebuilding lobster stocks.
    Response: The New Hampshire two-tiered trap allocation program was 
determined to be conservation equivalent to the fixed trap limits in 
LCMA 1 by the Commission's Lobster Board. NOAA Fisheries' analysis 
concurs with this finding. In fact, analysis suggests that the measure 
will not simply be equivalent, but will actually benefit the resource 
by decreasing the overall number of traps in the water. As such, those 
not participating in this program also gain potential relative benefit. 
The most recent information provided by New Hampshire Fish and Game 
Department supports this premise:Recent data indicates that this 
measure is accountable for a reduction in the number of traps fished by 
New Hampshire fishermen to date, compared to what would currently be 
allowed under the fixed trap limits in area 1, despite the absence of a 
cap on limited licenses. Specifically, according to updated information 
provided by New Hampshire Department of Fish and Game for the period 
between 2000 and 2002, the number of limited licenses increased by 
approximately 11 percent, or 30 licenses. However, since these licenses 
are capped at only 600 traps, it resulted in 1,800 additional traps 
into the fishery, rather than 2,400 that would otherwise have been 
allowed if the limited license category was allowed the standard 800 
traps. In any event, NOAA Fisheries recognizes that any state can 
utilize the adaptive management provisions of the ISFMP to present a 
conservation equivalent alternative to the approved management 
scenario, as applicable.
    NH Comment 4: A Maine lobsterman stated that he had to reduce his 
traps by 400 three years ago when the state of Maine implemented a trap 
limit and now would not want to see a New Hampshire fisherman be able 
to fish that extra 400 traps under New Hampshire's conservation 
equivalent trap allocation program.
    Response: The Federal trap limit in Area 1 remains at 800 traps 
regardless of whether an individual resides in the State of Maine or 
the State of New Hampshire. Individual states may, however, choose to 
implement more restrictive measures or conservationally equivalent 
measures, which is the scenario currently described by the commenter. 
The New Hampshire measure is a state measure approved by the 
Commission's Lobster Board of which the State of Maine is a member. In 
any event, NOAA Fisheries' best information suggests that the measure 
will result in an overall reduction of traps being fished by New 
Hampshire lobster fishers. Accordingly, while a very few New Hampshire 
permit holders may choose to fish 400 extra traps, an overall reduction 
in traps in the area should result that would benefit Maine lobster 
fishers. Certainly, if NOAA Fisheries did not approve the measure, New 
Hampshire's conservation equivalency program would nonetheless exist. 
That is, the Lobster Board already approved New Hampshire's 
conservation equivalent measure and the State of New Hampshire already 
promulgated regulations consistent therewith before issuance of this 
final rule. As such,

[[Page 14917]]

disallowance of the measure in this final rule could result in trap 
proliferation if New Hampshire full license holders retained their 
1,200-trap state permit and sold their Federal permit to another.
    NH Comment 5: A state commented that with the uncertainty 
surrounding the impact of the proposed New Hampshire trap limit 
conservation equivalency on the resource, the negative socio-economic 
impact on Maine and Massachusetts fishermen should become the deciding 
factor. Allowing this measure to go forward will undermine support for 
the Area 1 plan and may lead to additional requests for exemptions that 
may reverse progress to date.
    Response: NOAA Fisheries acknowledges the right of New Hampshire or 
any other state to utilize the process for alternative state management 
regimes outlined in the law and Amendment 3 of the ISFMP to address 
specific socio-economic or industry-related situations. Importantly, 
New Hampshire's conservation equivalency proposal is a self-contained 
measure that is not expected to create extra-territorial 
responsibilities for her sister states or the Federal Government, nor 
is it expected to have any extra-territorial impacts. Overall, if there 
is an impact as a result of the measure, it should be positive for 
Maine and Massachusetts fishers since overall trap usage should 
decrease. However, NOAA Fisheries does note that continued creation and 
approval of conservation equivalent measures by the Commission could, 
depending on the measure, unintentionally increase the complexity of 
the present management system, burdening all parties, including sister 
states, industry and the Federal Government, and thereby greatly 
decreasing the efficiency and effectiveness of the overall ISFMP.
    NH Comment 6: Allowing the New Hampshire conservation equivalency 
plan would be waiving the most restrictive rule in the ISFMP that 
requires lobstermen to fish the most restrictive of trap limits 
regardless of whether they fish in state or Federal waters.
    Response: The Commission has created a task force to research and 
provide recommendations to the Lobster Board concerning the ``most 
restrictive'' rule. NOAA Fisheries intends to remain involved in future 
discussions concerning this and other novel management measures such as 
total trap allocations and trap transferability as the Commission moves 
forward in addressing these issues for consideration in the ISFMP. In 
the meantime, NOAA Fisheries acknowledges the right of New Hampshire to 
implement an alternative trap allocation system in state waters only, 
as approved by the Commission's Lobster Management Board, and 
consistent with the adaptive management measures set forth in the 
ISFMP.
    NH Comment 7: The New Hampshire plan has greatly limited the number 
of traps fished by New Hampshire lobstermen. If it hadn't been 
implemented there would be about 20,000 traps fished by New Hampshire 
lobstermen compared to the approximately 10,000 that are currently 
estimated to be fished.
    Response: Recent data from the New Hampshire Fish and Game 
Department indicate the state's plan reduces the potential number of 
traps fished in New Hampshire waters. See response to NH Comment 4.

Area Boundary Changes (AB)

    AB Comment 1: One individual wrote in opposition to the proposed 
revisions to the Area 1, Area 2, and Outer Cape Area boundary lines as 
recommended by the Commission.
    Response: NOAA Fisheries will implement compatible boundary lines 
for Area 1. Area 2 and the Outer Cape Area to maintain consistency with 
the ISFMP and to avoid confusion if the Federal and Commission area 
boundaries and their associated lobster management measures differ.

Gauge Size Comments (GS)

    GS Comment 1: Nine individuals support some manner of a gauge 
increase.
    Response: NOAA Fisheries will analyze minimum gauge size increases 
along with other measures adopted by the Commission in Addenda II and 
III to Amendment 3 of the ISFMP in a future Federal rulemaking package. 
The impacts of a gauge increase in Federal waters will require a 
thorough examination of the biological and socio-economic impacts of 
such a measure, including the interstate and U. S.- Canada trade 
implications.
    GS Comment 2: Three individuals support a maximum carapace size 
requirement.
    Response: The Federal lobster regulations currently do not allow a 
vessel fishing in or permitted to fish in LCMA 1 to possess lobster 
larger than 5 inch (13 cm) carapace length. Potential implementation of 
maximum gauge sizes as they pertain to those measures adopted in 
Addenda II and III to Amendment 3 of the ISFMP will be addressed by 
NOAA Fisheries in a separate rulemaking action.
    GS Comment 3: One individual is opposed to a gauge increase in Area 
1.
    Response: Currently, the ISFMP does not include a requirement for 
gauge increases in LCMA 1 so this issue is not addressed in this Final 
Rule.

Vessel Upgrade Comments (VU)

    VU Comment 1: One person suggested that NOAA Fisheries allow a 10-
20 percent increase in vessel length and horsepower.
    Response: NOAA Fisheries does not intend to limit lobster vessel 
size or horsepower requirements since these parameters are not 
indicative of fishing effort, as are numbers of traps.

General Comments (GC)

    GC Comment 1: One commenter suggests a closed lobster season 
beginning December 1 rather than January 1. Another commenter suggests 
closed seasons from December 1 through March 1.
    Response: Closed seasons were not included in the Commission's 
recommendations for Federal action in the EEZ in Addendum I and, 
therefore, were not analyzed as part of this rulemaking action. An 
annual closed season from January 1 through March 31 was adopted by the 
Commission in Addendum III to Amendment 3 of the ISFMP for the Outer 
Cape Management Area only. The Commission has recommended that NOAA 
Fisheries implement compatible measures into the Federal regulations, 
however, this will be addressed in future rulemaking.
    GC Comment 2: Two individuals believe the rule violates the 
Magnuson-Stevens Act.
    Response: NOAA Fisheries notes that the commenters make no specific 
reference as to how the proposed rule violates the MSA. Federal 
American lobster management is authorized under the Atlantic Coastal 
Act which requires that NOAA Fisheries, acting on behalf of the 
Secretary of Commerce, implement management measures that are 
compatible with the Commission's ISFMP and consistent with the National 
Standards set forth in the MSA. The manner in which this final rule 
addresses all 10 of the National Standards is detailed in the 
Classification section of this final rule and in section V.(5) of the 
FSEIS, Relationship to Other Applicable Law.
    GC Comment 3: One commenter recommends that NOAA Fisheries 
implement a buy back program to allow industry members a way out of the 
business.
    Response: Under section 312(a) and (b) of the MSA, the Secretary of 
Commerce may make funds available to

[[Page 14918]]

assist the fishing industry, such as a buy back program. This may only 
occur if the Secretary, at his or her discretion, or at the request of 
the Governor of an affected state, declares that a commercial fishery 
failure has occurred as the result of a fishery resource disaster. This 
was done in 1999 to alleviate impacts to commercial lobster fishermen 
in Connecticut and New York due to the Long Island Sound lobster 
fishery disaster (see responses to HP Comments 33 and 34). Although all 
three stocks of American lobster are overfished, it is not evident that 
a commercial fishery failure is occurring in the lobster fishery in 
Areas 3, 4 or 5, which are the subject of this final rule. The 
Secretary of Commerce may consider such an option if warranted under 
the requirements of Section 312(a) of the MSA. Regardless, current 
Federal lobster permits remain transferrable if the permitted vessel is 
soldto another individual or entity. Therefore, there is nothing that 
would prohibit, under current Federal regulations, a permit holder from 
selling his or her vessel and Federal lobster permit and gear to a 
willing buyer.
    GC Comment 4: One opponent of historical participation states that 
the LCMTs don't represent the entire body of lobstermen.
    Response: The LCMTs were established under Amendment 3 of the 
ISFMP, each acting in an advisory role to the Commission's Lobster 
Management Board. Their participation in the lobster management process 
is intended to ensure that the industry has a voice in how the resource 
is managed and allows the diverse nature of individual fishing 
operations, economic considerations and the unique issues of the 
specific areas to be addressed in the lobster management program. As 
mandated by the ISFMP, each LCMT must be comprised of a specific number 
of members from the associated states that represent the fleet in that 
particular management area. NOAA Fisheries is obliged under the 
Atlantic Coastal Act to implement regulations that are compatible with 
Commission recommendations as they relate to the ISFMP and includes 
acknowledging the LCMT's as a legitimate advisory body of the 
Commission. NOAA Fisheries suggests that any member of the lobster 
industry interested in becoming involved in the LCMT process contact 
their state fisheries agency or the Commission's American Lobster ISFMP 
Coordinator to inform them of that interest.
    GC Comment 5:One individual commented that there is no scientific 
data to suggest that the lobster stock is depleted .
    Response: The latest lobster stock assessment conducted in March 
2000 indicates that all three stocks of American lobster are growth 
overfished and overfished according to the overfishing definition in 
the ISFMP. A subsequent peer review of that assessment by an external 
stock assessment peer review panel supported the conclusions of the 
2000 stock assessment and determined that additional regulatory 
measures are necessary. The review panel also concluded that, although 
the resource is not recruitment overfished, recruitment overfishing is 
occurring, which could result in recruitment failure. The panel further 
noted that shifts in fishing effort from nearshore areas to offshore 
areas has occurred. Allowing such effort shifts t continue could 
negatively impact lobster egg production. Refer to FSEIS Section I.1, 
Science, and Section IV.3.(B)., Stock Assessment. The measures in the 
Commission's ISFMP, including historical participation for Areas 3, 4 
and 5, have been determined to be effective in ending overfishing and 
rebuilding the lobster resource. Further, more recent anecdotal 
information and reports from state agencies indicate that lobster 
catches in southern New England are on the decline and the presence of 
shell disease is increasing. A massive die-off in Long Island Sound in 
1999, although not proven to be directly related to overfishing, has 
substantially reduced lobster abundance, especially in western Long 
Island Sound.

Marine Mammal Comment (MM)

    MM Comment 1: One individual cannot understand why NOAA Fisheries 
would allow a significant number of vessels to double their trap 
allocations compared to current allocations, given the increasing 
concern for protecting right whales.
    Response: The selected action is anticipated to at least cap, and 
potentially reduce, levels of trap fishing in Areas 4 and 5 and reduce 
trap fishing levels in Area 3. Therefore, this should diminish the 
effects of trap gear on right whales. Further, the Atlantic Large Whale 
Take Reduction Plan is a major component of NOAA Fisheries' activities 
to cetaceans listed under the Endangered Species Act using a multi-
faceted approach that includes fishing gear modifications and time-area 
closures, supplemented by gear research to reduce the risk of 
entanglement of whales in fixed fishing gear.

V-notching Comments (V-notch)

    V-notch Comment 1: Six comments were received in favor of v-
notching.
    Response: Current Federal lobster regulations at 50 CFR 697. 7 
prohibiting the retention, landing or possession of any v-notched 
female American lobster. Based on recommendations by the Commission in 
Addenda II and III to Amendment 3 of the ISFMP, NOAA Fisheries is in 
the process of analyzing the mandatory v-notching requirement for Areas 
1 and 3, and the zero-tolerance v-notch definition for Area 3, adopted 
in the ISFMP. These measures will be addressed in a separate rulemaking 
action.
    V-notch Comment 2: NOAA Fisheries should rectify the discrepancy 
between the Maine V-notch regulation and the Federal v-notch 
regulation. The Federal regulation is too broad and encompassing and 
only applies to lobsters that have recently been notched.
    Response: NOAAFisheries believes that the current Federal 
definition of v-notch is sufficient and is enforceable since it 
provides specifics on what is recognized as a v-notch. This definition 
is consistent with that adopted by the Commission in the ISFMP. NOAA 
Fisheries may look more closely at this issue in future rulemaking 
actions when Commission recommended measures such as zero-tolerance v-
notching and mandatory v-notch requirements are analyzed.

Changes from the Proposed Rule

    Changes were made to several sections of the proposed rule to 
clarify the qualification and appeals process for determination of 
historical participation in Areas 3, 4, and 5; to respond to public 
comments; and to increase the period, from 30 to 45 days, during which 
appeals may be made subsequent to any associated notice of denial of 
permits for trap fishing in these lobster management areas. Changes 
were made as follows:
    In Sec.  697.2, definitions are added for ``Conservation 
equivalency'' and ``Qualifying year.''
    In Sec.  697.4, paragraph (a)(7)(ii) is revised to describe how 
qualification for historical participation will impact annual permit 
renewal procedures for fishing with traps in Lobster Conservation 
Management Areas 3, 4, and 5.
    In Sec.  697.4, paragraphs (a)(7)(vi), (a)(7)(vii), and 
(a)(7)(viii) were revised to clarify and restrict the type and nature 
of documentation that is required to meet qualification and trap 
allocation criteria for participation in the Area 3,

[[Page 14919]]

Area 4, and Area 5 lobster trap fishery; to extend the timeframe during 
which applicants can submit associated applications to qualify for trap 
allocations; to re-align qualification criteria and documentary proof 
under two major sub-headings; to require the submission of an affidavit 
(previously proposed to apply only to the certification of the number 
of traps fished in Area 3, Area 4, and/or Area 5 during the qualifying 
year) that attests that the applicant meets the qualification and trap 
allocation criteria for participation in the Area 3, Area 4, and/or 
Area 5 trap fishery, and that the supporting information being provided 
is truthful, accurate, and was created contemporaneously in the 
qualifying year; and to allow the submission of tax returns and sales 
receipts to the extent that such documents support the requested trap 
allocation(s) - to help demonstrate the number of traps fished in each 
lobster management area during the qualifying year.
    In Sec.  697.4, a new provision at (a)(7)(vi)(C)(5), 
(a)(7)(vii)(C)(4) and (a)(7)(viii)(C)(4), was added to require a signed 
cover letter along with the needed documentation which potential 
qualifiers must provide for explaining the nature of proof being 
submitted for qualification in the lobster trap fishery in Area 3, Area 
4, and/or Area 5.
    In Sec.  697.4, paragraph (a)(7)(x) was deleted, and associated 
provisions for notification by NMFS were moved to paragraphs 
(a)(7)(vi)(C)(8), (a)(7)(vii)(C)(7), and (a)(7)(viii)(C)(7).
    In Sec.  697.4, paragraph (a)(7)(xi) is redesignated as (a)(7)(x) 
and revised to modify procedures for appeal of denial of an American 
lobster limited access request for use of trap gear in Area 3, Area 4 
and/or Area 5, to allow only two grounds for appeal and to change the 
period of appeal from 30 days to 45 days from the date of the notice of 
denial.
    In Sec.  697.19, paragraphs (a) and (b) were revised to change the 
implementation date for limited access changes in the Area 3, Area 4, 
and Area 5 lobster trap fishery from May 1, 2002 to August 2, 2003.
    In Sec.  697.19, paragraph (b)(2) was revised to change the 
implementation period for the referenced Area 3 trap reduction schedule 
from fishing years 2002-2003 to fishing years 2003-2006.
    In Sec.  697.19, the cross reference to lobster trap allocations 
approved by the Regional Administrator for qualifiers in Area 3 in 
paragraph (b)(2) was changed from 697.4(a)(7)(vii), incorrectly 
referenced in the proposed rule, to Sec.  697.4 (a)(7)(vi) and the 
sliding maximum trap limits identified in Table 1.
    In Sec.  697.19, paragraphs (e) through (g) were redesignated as 
paragraphs (f) through (h), respectively, and a new paragraph (e) was 
added to explain that the Regional Administrator may issue temporary 
interim permits prior to completion of NMFS review of qualification 
applications for the Area 3, Area 4, and/or Area 5 lobster trap 
fishery, and how this may affect allowable levels of trap fishing 
effort prior and subsequent to the NMFS review.
    In Sec.  697.25, the definition for ``Conservation equivalency'' is 
moved to Sec.  697.2, and requires that, for consideration by the 
Regional Administrator of associated recommendations by ASMFC for 
American lobster, specific supporting information be provided.

Classification

    The Assistant Administrator for NOAA Fisheries determined that the 
measures specified in this final rule are necessary for the 
conservation and management of the American lobster fishery and that 
these measures are consistent with the Atlantic Coastal Act, the 
Magnuson-Stevens Act, and other applicable laws.
    The selected management actions in this final rule have been 
determined to be significant for the purposes of Executive Order 12866.

National Environmental Policy Act

    NMFS prepared a Draft Supplemental Environmental Impact Statement, 
Regulatory Impact Review, and an Initial Regulatory Flexibility 
Analysis(DSEIS/RIR/IRFA) for this action; a notice of availability was 
published in the Federal Register on November 24, 2000 (65 FR 70567). 
Public comments on the DSEIS/RIR/IRFA were addressed, and NMFS prepared 
a Final Supplemental Environmental Impact Statement/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (FSEIS/RIR/FRFA) following 
publication of a proposed rule on lobster management in Federal waters 
in the Federal Register on January 3, 2002 (67 FR 282). A notice of 
availability for the FSEIS/RIR was published in the Federal Register on 
November 8, 2002 (67 FR 68128). NOAA Fisheries determined that 
implementation of this action is environmentally preferable to the 
status quo. The FSEIS/RIR/FRFA demonstrates that, notwithstanding 
potential, yet unknown, changes in fishing practices and behavior, this 
action contains management measures able to mitigate, to the extent 
possible, overfishing and begin to 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 Final Regulatory Flexibility Analysis (FRFA), prepared in 
compliance with the Regulatory Flexibility Act, describes the economic 
impacts of the management measures on small entities. A summary of the 
FRFA follows. Reasons why the action is considered, as well as the 
objectivesfor this final rule, are described in the FRFA and the 
preamble to this final rule and are not repeated here. All participants 
in the lobster fishery are considered to be small entities. A 
description of and an estimate of the number of small entities to which 
this final rule will apply is discussed below.

Public Comments

    One hundred and ninety comments were received on the measures 
contained in the proposed rule. Because all entities affected by this 
final rule are small entities, all of the comments and responses are 
considered to pertain to small entities. While none of the comments 
specifically referred to the IRFA, there are eight comments that 
discuss economic impacts on small entities in the Comments and 
Responses portion of this final rule (see commentsnumbered - HP Comment 
6, HP Comment 18, HP Comment 32-34, HP Comment 37, NH Comment 2, and NH 
Comment 5).
    In this section, the economic impacts of the selected regulatory 
action and the non-selected alternatives potential economic effects are 
examined from the perspective of the individual firm or business. For 
purposes of this section, a small entity is defined as being any vessel 
with gross sales not exceeding $3.5 million annually, consistent with 
that of the size standards of the Small Business Administration. Under 
this definition, all entities that are permitted to fish and that 
participate in the American lobster fishery are small. The economic 
impacts associated with the selected management actions and the non-
selected alternatives are described in the FSEIS, and are incorporated 
herein by reference. The selected regulatory action and the non-
selected alternatives would affect only those entities that hold a 
Federal lobster permit.

Number of Small Entities

    Based on permit application records analyzed at the time the 
environmental impacts of this action were completed, a total of 2,901 
vessels held Federal lobster permits. Of these vessels, 18 held only 
charter or head boat non-trap

[[Page 14920]]

commercial permits, 6 held both charter/head boat and non-trap 
commercial permits, and 2065 vessels held Federal commercial lobster 
trap permits. Due to a lack of mandatory data collection in the lobster 
fishery, activity data to discern between vessels that merely hold a 
permit and vessels that have participated or are currently 
participating in the fishery cannot be determined with any degree of 
reliability. All Federal lobster permit holders must be considered as 
potential industry participants; therefore, a regulatory flexibility 
analysis was conducted. The regulatory flexibility analysis provides 
information on the expected economic impacts of the selected regulatory 
action and the non-selected alternatives on affected small entities, 
i.e. Federal permit holders engaged in the lobster fishery to the 
extent possible.

Economic Effects on Historic Participation Qualifiers

    Based on data provided by the LCMA 3 participants, at least 64 
vessels are expected to qualify for historic participation in LCMA 3. 
No such data is available for LCMA 4 and 5 nor does the information on 
the proportion of vessels fishing in each trap category provided by the 
Area 3 LCMT mean that the number of eventual qualifiers for historic 
participation will be limited to 64. Due to the lack of any mandatory 
data collection for Federal lobster permit holders, the actual number 
of qualifiers will not be known with certainty until after plan 
implementation. However, using available permit and activity data and 
adopting some simple decision rules an estimate of the potential number 
of qualifiers may be figured.
    LCMA 3 and LCMA 4 and 5 qualifiers were estimated by matching 
permit application data to identify all vessels that have a current 
lobster permit against combined dealer and logbook to estimate 
qualification based on poundage and trap history requirements (Table 
1). In the latter case, trap history was approximated by assuming some 
minimum poundage that may be expected to be produced from at least 200 
traps on a given trip. If, for example, average catch per trap were 2 
lb (0.9 kg) and if 200 traps were hauled on a given trip then at least 
400 lb (181 kg) would be produced. Any vessel with at least one trip in 
excess of 400 lb (181 kg) of lobster in two consecutive calendar months 
in the appropriate LCMA was deemed to meet the trap history requirement 
for that calendar year.
    An upper bound and lower bound estimate of historic participation 
qualifiers was estimated by using a sensitivity analysis on the catch 
per trip assumption and by adopting two different delineations for 
trips taken in the required LCMA. In the latter case, statistical area 
was used to delineate trips that took place in LCMA 3 and LCMA 4 and 5. 
Since statistical areas overlap the LCMA boundaries a lower bound 
estimate of participants was developed by dropping all statistical 
areas that had any overlap with either LCMA 3 or LCMA 4 and 5 
boundaries. An upper bound estimate was developed by including 
statistical area overlaps. This procedure was necessary due to a lack 
of more precise latitude and longitude data in dealer data.

                  Table 1.--Summary of Number of Qualifying Vessels for Historic Participation
----------------------------------------------------------------------------------------------------------------
                                                  Catch-per-trap  Catch-per-trap  Catch-per-trap  Catch-per-trap
                                                        = 4             = 3             = 2             = 1
                                                 ---------------------------------------------------------------
                                                   Upper   Lower   Upper   Lower   Upper   Lower   Upper   Lower
----------------------------------------------------------------------------------------------------------------
LCMA 3                                                99      53     106      55     111      55     117      58
LCMA 4 and 5                                          47      47      50      50      54      54      60      60
----------------------------------------------------------------------------------------------------------------

    The analysis using available data suggests that the number of 
qualifiers could be as many as 117 vessels for the LCMA 3 fishery and 
60 vessels for LCMA 4 and 5. Of the qualified vessels for LCMA 3, the 
majority had home ports in either Rhode Island or Massachusetts. For 
LCMA 4 and 5, the majority of qualified vessels were from home ports in 
the states of New York and New Jersey. These data are consistent with 
known patterns of participation in both LCMA 3 and LCMA 4 and 5 (Table 
1). Nevertheless, given problems with data collection for the lobster 
fishery these qualification estimates are likely to under-estimate the 
number of vessels that will qualify for historic participation.

                   Table 2.--Summary of Home Port of Historic Participation Qualifiers by LCMA
----------------------------------------------------------------------------------------------------------------
                                                                       LCMA 3                 LCMA 4 and 5
                       Home Port State                       ---------------------------------------------------
                                                              Lower Bound  Upper Bound  Lower Bound  Upper Bound
----------------------------------------------------------------------------------------------------------------
DE                                                                      1            1            1            1
MA                                                                     52           58            2            3
MD                                                                      0            0            0            1
NH                                                                      1            1            0            0
NJ                                                                      7            7           24           31
NY                                                                      1            7           14           16
RI                                                                     35           41            3            3
VA                                                                      0            0            0            1
OTHER                                                                   2            2            3            4
Total                                                                  99          117           47           60
----------------------------------------------------------------------------------------------------------------

    The effect of limiting access to historic participants will have 
several economic effects. Limiting access will protect qualifiers from 
effort expansion in the impacted offshore and nearshore LCMA's of Areas 
3 ,4, and 5. The

[[Page 14921]]

selected management action will result in a closed system, restricting 
future participation in these areas to a known universe of qualified 
vessels that fished in these areas prior to the access control date of 
September 1, 1999. A closed universe of participants will effectively 
cap effort in Areas 4 and 5 at historic levels and, in Area 3, is 
intended to result in an estimated 20 percent reduction in gear after a 
4-year trap reduction period compared to 1991-1993 estimated fishing. 
However, due to the ability of fishermen to compensate for a reduction 
in traps by increased fishing intensity, i.e.; more frequent trips and 
more frequent trap hauls per trip, landings and revenue are likely to 
be unaffected. A reduction in participants will also reduce the 
likelihood of gear conflicts and reduce associated loss of gear, while 
allowing the remaining trap gear to fish more efficiently since it will 
be possible to set gear in the more productive lobster grounds. A halt 
in effort expansion will effectively prevent a shift in effort by non-
qualifiers from non-trap to trap gear in the impacted areas, and 
prevent a geographic shift by non-qualifiers from other areas that may 
be attracted to participate in the impacted areas for a variety of 
reasons, including potential financial incentives, localized 
overcrowding, or a resource decline such as that experienced in Long 
Island Sound.
    A major economic effect of trap allocations based on historical 
participation will be to preserve the competitive position of fishing 
businesses in the offshore fishery. Vessels that have historically 
fished a greater volume of gear will be able to more effectively set 
gear to hold productive ground or claim seasonally productive lobster 
territory rather than always setting gear to maximize catch levels. It 
will also, to some unknown extent, increase the relative share of 
landings in these LCMAs for those who are able to meet the 
qualification criteria. However, increased trap usage may correlate 
into increased costs for qualifiers since increasing the numbers of 
traps fished brings with it increases in cost in purchasing and 
maintaining those extra traps, additional costs for bait, as well as 
the added time and fuel expenses necessary to tend the extra gear.
    It is difficult to provide a more concrete statement of benefits 
associated with implementation of limited access in LCMA 3, 4, and 5, 
to historic participants for reasons described in this analysis. 
However, the lobster resource in these LCMAs is overfished and 
available data evaluated for this action indicates the number of traps 
will decrease. Notwithstanding data limitations, quantifiable impacts 
are discussed in greater detail in this regulatory flexibility analysis 
if possible. Additional benefits are described in the FSEIS (see 
ADDRESSES).
    Assuming that the data provided by the Area 3 LCMT on the 
proportion of vessels fishing in each trap category is representative 
of the majority of vessels that currently fish and that may eventually 
qualify for historic participation, the economic effect of the selected 
regulatory action may be viewed in contrast to the trap caps under the 
non-selected status quo alternative and that of non-selected 
Alternative 1C.
    Under the fixed trap cap identified in the non-selected status quo 
alternative and that of non-selected Alternative 1C, nearly half of the 
64 vessels reporting trap numbers would be forced to reduce their traps 
by at least 100 traps and 16 vessels would have to reduce their traps 
fished by at least 500 traps. By contrast, under the fixed trap cap 
alternatives, 27 vessels would be able to increase trap numbers by at 
least 200 traps and 10 vessels would be able to increase trap numbers 
by at least 600 traps. Under the non-selected status quo and 
Alternative 1C, the potential for increased trap usage by 27 vessels 
and possible decreased trap usage by 30 vessels does not necessarily 
correlate to increased or decreased vessel profits for these respective 
vessels. That is, increasing the numbers of traps fished brings with it 
increases in cost in purchasing and maintaining those extra traps, 
additional costs for bait, as well as the added time and fuel expenses 
necessary to tend the extra gear. Similarly, decreases in traps usage 
will result in savings in time and costs. In fact, some have observed 
that decreases in traps do not result in decreases in harvest. 
(Acheson, 1997). Reasons for such include increased trap efficiencies--
e.g. the same number of lobsters are caught, but concentrated in fewer 
traps and increased time and ability to more frequently tend the traps 
existing. Where a lack of data resolution prevents a quantifiable 
analysis of the potential economic benefits, qualitative benefits are 
provided. Certainly, based upon available data, many vessels fish below 
their current cap limit, presumably in order to maximize the economic 
efficiencies of their own circumstances. NOAA Fisheries anticipates 
this practice to continue, further ameliorating the expected financial 
impacts and disparity of the proposed action. In any event, trap 
allocations based on historical participation is not designed to create 
new financial positioning so much as it will preserve the historical 
competitive position and structure of the offshore fishery.
    Among the regulatory alternatives considered in this action, the 
non-selected Alternative 1C would compromise the historic competitive 
balance of the offshore fishery by allowing vessels that currently fish 
below the existing fixed trap limits to increase effort and would 
permit some room for growth among the small entities (in terms of 
numbers of traps fished). Vessels currently fishing below the current 
cap may be able to use surplus gear above their current effort level 
and below the current trap cap to more effectively set gear to hold 
productive ground or claim seasonally productive lobster territory 
rather than always setting gear to maximize catch levels. It will also 
increase the relative share of landings in these LCMAs for vessels 
fishing below the current cap at the expense of reducing industry share 
for entities that have historically fished above the trap cap. Vessels 
that have historically fished above the current trap cap may find 
increased competition for seasonally productive lobster territory. On 
balance, however, both the selected regulatory action and the non-
selected Alternative 1C would have the same general economic effect 
among qualifiers. Given the similarities, ultimately the selected 
actions are intended to implement Federal regulations that are 
compatible with the Commission's lobster ISFMP.

Economic Effects on Historic Participation Non-qualifiers

    Given the relatively small number of historic participation 
qualifiers there will be a large number of vessels that will not 
qualify. Note, however, that the number of vessels that have 
participated in the offshore fishery has historically been low so the 
selected regulatory action will primarily affect vessels that may 
currently be actively pursuing entry into the offshore fishery (i.e.; 
Permit holders who have a vessel under construction or agreement, for 
example), vessels that began trap fishing effort after the 
qualification period ended, and other vessels that have participated in 
the offshore fishery but may not qualify due to one or more of the 
qualification criteria. However, as explained in detail in the FSEIS/
RIR/FRFA (see ADDRESSES), NOAA Fisheries believes that potentially 
displaced fishers, having been given ample notice, are expected to have 
already diversified prior to the time the measures in this final rule 
take effect.

[[Page 14922]]

    Under current Federal regulations, Federal lobster permit holders 
may elect to fish in any LCMA, but must abide by the most restrictive 
measures in effect for any LCMA elected. Based on an upper bound 
estimate of 60 qualifiers in LCMA 4 and 5, there is a total of 2,189 
vessels that may not qualify to fish for lobster with traps under the 
selected regulatory action. This number, however, is potentially 
misleading because it represents all Federal permit holders across the 
range of the fishery, from Maine to North Carolina. As such, the number 
includes permit holders who have never fished in Areas 3, 4 or 5 and 
who have no intention of ever doing so, but who could potentially put 
Areas 3, 4 or 5 on their permit because current regulations do not 
prohibit such. Accordingly, the figure represents a theoretical upper 
boundary useful for analysis, but not intended to suggest the actual 
suspected impact set.
    More realistic, however, is that of the 2,000 plus potential 
qualifiers, only 185 vessels designated at least area 4 or area 5 (or 
both) on their permit application records analyzed at the time the 
environmental impacts of this actions were completed. These vessels 
represent the set of permit holders that are most likely to be 
potentially impacted by historic participation in LCMA 4 and 5 (Table 
3). Similarly, of the total theoretical upper boundary set of non-
qualifiers for LCMA 3, 566 permit holders elected area 3 on the permit 
application. This set of 566 can be further reduced because many permit 
holders declare into an area even if they have no intention of fishing 
in that area. Reasons for this include maintaining fishing flexibility 
and the idea that in declaring an area one is preserving his or her 
right to fish there in the future if access to that area is limited. 
Certainly commenters have suggested that the number of vessels that 
actually fish in Area 3 is quite limited. Consistent with the findings 
for qualifying vessels, the majority of LCMA 4 and 5 non-qualifiers 
would be from home ports in New York and New Jersey. However, vessels 
from home ports in Maine would comprise the majority of LCMA 3 non-
qualifiers and are believed to be predominantly Area 1 fishers.
    To examine the restrictiveness of the qualification criteria, the 
alternative levels of qualification were developed to determine how 
many vessels might qualify under less restrictive requirements. 
Specifically, qualification for LCMA 3 historic participation for 
alternative poundage qualification levels of 10,000, 15,000 and 20,000 
lb (4,536, 6,804, and 9,072 kg) was estimated. The various levels of 
assumed catch per trap were also retained. Note that since 
qualification for LCMA 4 and 5 historic participation has no poundage 
requirement, the number of qualifiers would only be affected by the 
ability to demonstrate historic levels of trap fishing. The sensitivity 
for LCMA 4 and 5 qualifiers to the assumed level of catch per trap was 
reported in Table 1.
    The lower bound estimates for the LCMA 3 historic participation 
program were similarly insensitive to the poundage qualification 
criteria and were not particularly sensitive to the assumption of 
average catch per trap. By contrast, the upper bound estimates for LCMA 
3 were sensitive to the poundage qualification criterion and this 
sensitivity increased as the assumed average catch per trap was 
reduced. Nevertheless, lowering the poundage criterion would result in, 
at most, a 37 vessel increase in LCMA 3 qualifiers.

  Table 3.--Summary of Home Port State for Historic Participation Non-
   Qualifiers for Permit Applications Selecting LCMA 3 or LCMA 4 and 5
------------------------------------------------------------------------
                                                  LCMA 4 and
                 Home Port State                    5 Non-    LCMA 3 Non-
                                                  Qualifiers  Qualifiers
------------------------------------------------------------------------
CT                                                        2           0
DE                                                        6           4
MA                                                       29         161
MD                                                        4           4
ME                                                       11         269
NC                                                        1           0
NH                                                        2          18
NJ                                                       49          43
NY                                                       49          21
RI                                                       27          38
OTHER                                                     5           8
Total                                                   185         566
------------------------------------------------------------------------


                       Table 4.--Sensitivity Analysis of Qualifiers by Poundage Criterion
----------------------------------------------------------------------------------------------------------------
                                                                CPU = 4      CPU = 3      CPU = 2      CPU = 1
                Poundage Requirement(number)                     Pounds       Pounds       Pounds       Pounds
                                                                (number)     (number)     (number)     (number)
----------------------------------------------------------------------------------------------------------------
Upper Bound Estimate for Area 3
25000 lbs                                                              99          106          111          117
20000 lbs                                                             105          114          124          131
15000 lbs                                                             110          121          133          144
10000 lbs                                                             111          127          140          154
Lower Bound Estimate for Area 3
25000 lbs                                                              53           55           55           58
20000 lbs                                                              55           57           57           59
15000 lbs                                                              57           59           59           62
10000 lbs                                                              57           60           60           64
----------------------------------------------------------------------------------------------------------------

    The results reported in the Table 3 - Sensitivity Analysis of 
Qualifiers by Poundage Criterion are based upon limited data. Vessel 
history that may not be fully represented in NOAA Fisheries data may 
increase the number of qualifiers. Nevertheless, vessels that will not 
qualify for either LCMA 3 or LCMA 4 and 5 historic participation, will 
not be able to expand their businesses into these areas. The economic 
effects will be more severe for those vessels that are currently 
fishing some portion of their traps but will not qualify for historic 
participation because they could not meet one or more of the 
qualification criteria. These vessels will either have to:sell their 
Federal permit and fish their allowable number of traps in state 
waters, assuming they qualify under their individual state program; 
move their trap fishing effort to other management areas not requiring 
historic participation; or, use their vessel and gear in some 
alternative fishery. Thus, non-qualifying vessels will likely be able 
to offset some of their losses by fishing other areas or in other 
fisheries, but associated operations may not be as profitable as 
before.
    A less obvious economic effect is that the value of the non-
qualifier's Federal lobster permit might be eroded while

[[Page 14923]]

that of qualifying vessels could increase in certain hypothetical 
situations. Thus, while there may be no distinct operational effect the 
equity position of the business could be affected. The normal cost 
associated with baiting and hauling traps may not change but if the 
value of the lobster permit is capitalized into the value of the 
vessel, then the value of the owners' business could similarly be 
reduced. Since owner equity is an important component of obtaining 
favorable loan conditions non-qualifiers may be put at some competitive 
disadvantage when seeking business loans. If nothing else, the resale 
value of the business could be affected in certain circumstances.

Impacts of Historic Participation Alternatives on Small Entities

    On balance, the non-selected Alternatives 1A and 1C would not have 
significant differential impacts on non-qualifiers. Thus, under 
alternative 1A and 1C, non-qualifiers that are participants in the 
offshore fishery would still be forced to seek alternative fishing 
locations. These vessels would suffer some loss in profitability since 
alternative areas would likely already have been heavily fished. Non-
qualifiers might also suffer a decline in the value of their business 
affecting resale and possibly putting them at a competitive 
disadvantage when seeking business loans.
    Non-selected Alternative lA would have approximately the same 
impact as that of the selected regulatory action except that vessels in 
LCMA 4 and 5 might be less negatively affected relative to the selected 
regulatory action. The possible negative effect of the selected action 
is due to the imposition of a cap on initial trap allocations. Such a 
cap would require some portion of qualifying vessels to reduce the 
number of traps fished proportionally more than vessels that will 
qualify for initial allocations at or below the cap.
    Non-selected Alternative 1C might have mixed effects on qualifying 
vessels in LCMA 3 and LCMA 4 and 5. Vessels that are operating above 
the cap would have to reduce traps while vessels below the cap would be 
able to increase their traps. On balance, approximately the same number 
of vessels would be forced to reduce as would be able to increase their 
traps. At an industry level, this non-selected alternative might result 
in an equalization of competitiveness but would do so by negatively 
impacting relatively larger businesses.

Rationale for Selecting this Regulatory Action

    Based on information available at this time, NOAA Fisheries 
concludes that the selected regulatory action is the best among the 
considered alternatives. The reader is referred to the preamble of this 
final rule and Section III of the FSEIS completed for this action (see 
ADDRESSES) for a detailed description of the selected regulatory action 
and its rationale and environmental consequences.

Impacts of New Hampshire Conservation Equivalency on Small Entities

Selected Action--New Hampshire Conservation Equivalency

    Under New Hampshire conservation equivalency measures contained in 
this final rule, Federal permit holders with New Hampshire full 
licenses may be able to increase their relative share of landings 
compared to New Hampshire limited license holders and other non-New 
Hampshire LCMA 1 Federal participants because full license holders will 
be allowed to fish up to 400 more traps in New Hampshire state waters 
than is allowed under the current trap cap. Gross revenues for New 
Hampshire full license holders fishing above the current 800 maximum 
trap limit in the state waters of New Hampshire may be increased. To 
the extent that revenue increases are offset by equipment expenses 
(i.e. the procurement, tending, and maintenance of more gear), profits 
may remain unchanged. New Hampshire full license holders may also be 
able to more efficiently ``hold ground'' or claim seasonally productive 
lobster territory. However, gear conflicts may increase and offset the 
benefits of increased landings. Limited license holders fishing below 
the current maximum trap limit may experience reduced landings, and, 
since prices are expected to remain unchanged, gross revenues may 
decrease. However, reduced equipment expenses and the ability to 
increase efficiencies through an increase in the number of trips and 
more frequent trips may offset revenue losses and profits may remain 
unchanged. However, the State of New Hampshire has already implemented 
this conservation equivalency program notwithstanding the coordinated 
Federal measures contained in this rule. Accordingly, the financial 
impacts associated with fishing 1,200 traps would be encountered 
regardless of Federal action (see NH Comment 4).

Non-Selected No Action/Status Quo Alternative 2B--New Hampshire

    Under the non-selected status quo alternative, Federal permit 
holders with New Hampshire full license would be restricted to the 
current 800-maximum trap limit. This non-selected alternative might 
result in a variety of responses on the part of impacted Federal permit 
holders. If NOAA Fisheries did not implement the selected action to 
allow fishers who qualify to use 1,200 traps in New Hampshire state 
waters, the impacted fisher could relinquish his Federal permit, sell 
the vessel and associated Federal permit, or continue to fish for 
lobster with traps under the existing Area 1 trap limit (800 traps) in 
both state and Federal waters. Relinquishment of the Federal permit 
would result in less gear being fished in Federal waters although the 
1,200 traps would still be fished, but entirely in state waters, 
potentially greatly increasing line density in state waters. However, 
given the economic value of a vessel with an associated Federal limited 
access lobster permit, it is unlikely that a fisher would simply 
relinquish the Federal permit. Sale of the vessel and associated 
Federal limited access lobster permit to a fisher who did not possess a 
New Hampshire lobster permit would not be expected to result in a 
reduction in trap gear. It is likely that a sale would result in 
increased effort under the assumption that the seller would continue to 
fish the 1,200 traps entirely in state waters, thereby potentially 
greatly increasing fishing effort, traps, and trap line density in 
state waters, while the buyer of the vessel and Federal lobster permit 
could fish up to the maximum trap limit in Federal waters for the 
area(s) elected. If the impacted fisher were to elect to continue to 
fish for lobster with traps under the existing Area 1 trap limit (800 
traps) in both state and Federal waters, vessels unable to increase 
efficiencies and make adjustments to fishing practices to compensate 
for trap reductions might experience a reduction in profits. Not taking 
action to establish a 600-trap ceiling for Federal limited license 
holders, a more conservative limit than the 800-trap limit required by 
the ISFMP, might result in an increase in lobster landings for license 
holders actually fishing above the 600-trap limit. However, an absence 
of information on the actual number of traps actively fished by New 
Hampshire lobstermen makes it impossible to quantify the impact on 
landings.

[[Page 14924]]

Impacts of Compatible Management Area Boundaries

Selected Action 3A

    The selected action will implement compatible boundary lines for 
Area 1, Area 2, and the Outer Cape Area to maintain consistency with 
the Commission's lobster ISFMP. Impacted vessels will benefit from 
compatible boundary lines, by the elimination of potential regulatory 
differences between state and Federal area specific regulations, and 
the elimination of differential enforcement as interpreted by state and 
Federal agencies.

Non-selected No Action Status Quo Alternative 3B--Boundaries

    This non-selected alternative would result in incompatible boundary 
lines for Area 1, Area 2, and the Outer Cape Area. Incompatible 
boundaries could result in differential enforcement of area specific 
management measures as interpreted by state and Federal agencies as 
well as confusion on the part of impacted Federal permit holders.

Reporting and Recordkeeping Requirements

    Small entities applying under the historic participation 
application process for LCMAs 3, 4, or 5, would be required to comply 
with the new collection-of-information requirements described in the 
Classification section of this final rule under the Paperwork Reduction 
Act section. No professional skills are necessary to comply with any of 
the reporting requirements associated with this action.

Paperwork Reduction Act

    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). The following collection-
of-information requirements are being restated and have already been 
approved by the Office of Management and Budget (OMB) as shown:vessel 
permit applications approved under OMB control number 0648-0202 with 
the response times per application of 30 minutes for a new application, 
and 15 minutes for renewal applications; the Area 5 Waiver program 
approved under OMB control number 0648-0202 with the response times per 
application of 15 minutes to initiate a permit category change and 
select the LCMA 5 Trap Waiver Permit category, 2 minutes per response 
to return a suspended limited access lobster trap permit, and 15 
minutes per response to initiate cancellation of a LCMA 5-Trap Waiver 
Permit and re-activate a suspended limited access lobster trap permit; 
and a lobster trap tag requirement approved under OMB control number 
0648 0351 with a response time of 1 minute per tag.
    This final rule contains new collection-of-information requirements 
subject to the PRA. The collection of this information has been 
approved by OMB under OMB control number 0648-0450. These requirements 
include the compilation of information by Federal permit holders 
pertaining to historical fishing operations in the lobster fishery, and 
the submission of one or more affidavits to NOAA Fisheries, certifying 
the information provided to qualify based on the area specific 
qualification criteria number in LCMAs 3, 4, and 5. The public 
reporting burden for each collection of information per response is 
indicated in the following list of new requirements, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.
    The new requirements are as follows: (1) Provision of a cover 
letter intended to describe the types of documentation included in the 
application and the relevance of the documentation to the application 
process with a response time per application of 15 minutes; (2) 
Provision of documentation of possession of a current valid Federal 
lobster permit with a response time per application of 5 minutes; (3) 
Provision of documentation to demonstrate at least 200 lobster traps 
were set, allowed to soak, hauled back, and re-set in Areas 3, 4, or 5 
during a 2-consecutive calendar month period in any calendar year 
during the qualification periodfrom March 25, 1991, through September 
1, 1999 with a response time per application of 15 minutes; (4) (For 
Area 3 only) Provision of documents pertaining to the sale of lobsters 
indicating the landing of at least 25,000 lb (11,340 kg) of lobster 
from any location during the year used as the qualifying year from 
March 25, 1991, to September 1, 1999 with a response time per 
application of 10 minutes;(5) Provision of documentation for proof of 
historical participation in two rather than one lobster management area 
with a response time per application of an additional 17 minutes if 
different consecutive two-month periods of trap fishing are used; (6) 
Provision of documentation for proof of historical participation in 
three rather than one lobster management area with a response time per 
application of an additional 34 minutes if three different consecutive 
2-month periods are used; (7) Completion of lobster trap fishing area 
eligibility application form with a response time per application of 2 
minutes for each area selected; (8) Provision of affidavit stating 
total number of individual lobster traps the permit holder set, allowed 
to soak, hauled back, and re-set in Areas 3, 4, or 5 at any one time 
during the qualifying year with a response time per application of 15 
minutes; (9) Provision of a written appeal request to the Regional 
Administrator by non-qualifying permit holders with a response time per 
application of 15 minutes; and10. Provision of affidavits in support of 
documentary hardship written appeal request to the Regional 
Administrator by non-qualifying permit holders with a response time per 
application of 3.25 hours if three affidavits are required and 4.25 
hours per application if four affidavits are required.
    Send comments regarding these burden estimates or any other aspect 
of the data requirements, including suggestions for reducing the 
burden, to the Director, State, Federal and Constituent Programs 
Office, NOAA Fisheries, and to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (see ADDRESSES).
    Notwithstanding any other provision of 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 PRA, unless that collection-of-information displays a currently 
valid OMB control number.

Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA)

    Section 7(a)(2) of the Endangered Species Act (ESA) (16 U. S. 
C.1531 et seq.) requires that each Federal agency shall ensure that any 
action authorized, funded, or carried out by such agency is not likely 
to jeopardize the continued existence of any endangered or threatened 
species or result in the destruction or adverse modification of 
critical habitat of such species. When the action of a Federal agency 
may affect species listed as threatened or endangered, that agency is 
required to consult with either the National Marine Fisheries Service 
(NOAA Fisheries) or the U. S. Fish and Wildlife Service (FWS), 
depending upon the species that may be affected. In instances where 
NOAA Fisheries or FWS are themselves proposing an action that may 
affect listed species, the agency must conduct intra-service 
consultation. Management measures described in this final rule resulted 
in the initiation of an informal

[[Page 14925]]

and a formal intra-service section 7 consultation with NOAA Fisheries' 
Northeast Region Protected Resources Division.
    Informal consultation on the actions described in this final rule 
concluded on March 1, 2001, that parts of the action, as proposed, were 
likely to adversely affect ESA-listed right whales, humpback whales, 
fin whales, sei whales, sperm whales, leatherback sea turtles and 
loggerhead sea turtles as a result of displacement of lobster trap gear 
from LCMAs 3, 4, and 5 to nearshore lobster management areas where 
these species are known to occur.
    Formal intra-service ESA section 7 consultation on NOAA Fisheries' 
implementation of new management measures described in this final rule 
was initiated on July 11, 2001. The most recent section 7 consultation 
for this action is based on information developed byNOAA Fisheries' 
State, Federal and Constituents Programs Office, and other sources of 
information.
    The formal section 7 consultation concluded on October 31, 2002, 
that the selected management measures described in this final rule are 
not likely to jeopardize the continued existence of right whales, 
humpback whales, fin whales, sei whales, or sperm whales, loggerhead or 
leatherback sea turtles. Critical habitat for right whales has been 
designated within the action area, but the action is not likely to 
affect that critical habitat. Therefore, the management measures 
described in this final rule are not likely to destroy or adversely 
modify designated critical habitat.
    The management measures described in this final rule are expected 
to result in a reduction of effort as a result of limiting 
participation in LCMAs 3, 4 and 5 and requiring trap reductions over a 
4-year period for LCMA 3. Protected species known to become entangled 
in lobster trap gear, namely right, humpback, and fin whales as well as 
leatherback sea turtles, are expected to benefit from trap gear 
reductions in LCMAs 3, 4, and 5. Historic participation in LCMAs 3, 4, 
and 5 may also result in a shift in effort to nearshore areas. However, 
additional entanglements of ESA-listed cetaceans and sea turtles are 
not expected given that the overall effort in the fishery will decrease 
and there are management measures in place to reduce the number and 
severity of large whale entanglements in lobster gear. Some of these 
management measures are expected to be of benefit to sea turtles as 
well, such as by reducing the amount of line in the water. Sperm 
whales, and sei whales are not expected to occur in sufficient numbers 
in affected nearshore areas such that an increase in lobster gear in 
these areas will result in the addition of adverse affects to these 
species.
    The management measures described in this final rule for 
conservation equivalency for New Hampshire, while likely reducing the 
combined overall number of traps fished by state and Federal permit 
holders combined, could potentially result in the addition of lobster 
trap gear fished solely by these few Federal permit holders in New 
Hampshire state waters. The Biological Opinion for this action has 
identified that the activity for implementation of conservation 
equivalency for federal lobster fishers who also possess a full-time 
commercial New Hampshire lobster license will directly affect 
leatherback sea turtles as a result of entanglement in lobster trap 
gear set in New Hampshire waters. NOAA Fisheries has determined that 
this level of anticipated take is not likely to jeopardize the 
continued existence of leatherback sea turtles. Reasonable and Prudent 
Measures and Terms and Conditions are provided with the opinion to 
minimize the take of sea turtles in the lobster trap fishery.
    For additional discussion on the most recent ESA section 7 
consultation for this action, a complete administrative record of this 
consultation is on file at the NOAA Fisheries, Northeast Regional 
Office, Office of Protected Resources, One Blackburn Drive, Gloucester, 
Massachusetts, 01930 [Consultation No. F/NER/2001/01263].

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 19, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

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

    2. In Sec.  697.2, definitions for ``Conservation equivalency'' and 
``Qualifying year'' are added in alphabetical order to read as follows:


Sec.  697.2  Definitions.

* * * * *
    Conservation equivalency means a measure adopted by a state that 
differs from the specific requirements of an interstate fishery 
management plan, but achieves the same level of conservation for the 
resource under management.
* * * * *
    Qualifying year means any calendar year during the period from 
March 25, 1991, through September 1, 1999, excluding the time periods 
in calendar years 1991 and 1999 that are outside the qualification 
period (i.e., January 1, 1991 through March 24, 1991, and September 2, 
1999, through December 31, 1999), and refers to the specific year 
selected by the applicant for the purposes of qualifying for access to 
the lobster trap fishery in Areas 3, 4 and/or 5 under the requirements 
set forth in 697.4(a)(7)(vi-x).
* * * * *

    3. In Sec.  697.4, paragraph (a)(7)(ii) is revised and paragraphs 
(a)(7)(vi) through (x), and (f)(1)(v) are added to read as follows:


Sec.  697.4  Vessel permits and trap tags.

    (a) * * *
    (7) * * *
    (ii) Each owner of a fishing vessel that fishes with traps capable 
of catching American lobster must declare to NMFS in his/her annual 
application for permit renewal which management areas, as described in 
Sec.  697.18, the vessel will fish in for lobster with trap gear during 
that fishing season. The ability to declare into Lobster Conservation 
Management Areas 3, 4 and/or 5, however, will be first contingent upon 
a one time initial qualification as set forth in paragraphs (a)(7)(vi) 
through (a)(7)(viii).
* * * * *
    (vi) Participation requirements for EEZ Offshore Management Area 3 
(Area 3). To fish for lobster with traps in Area 3, a Federal lobster 
permit holder must initially qualify into the area. To qualify, the 
permit holder seeking initial qualification must satisfy the following 
requirements in an application to the Regional Administrator:
    (A) Qualification criteria. To initially qualify into Area 3, the 
applicant must establish with documenting proof the following:
    (1) That the applicant possesses a current Federal lobster permit;
    (2) That at least 200 lobster traps were set, allowed to soak, 
hauled back, and re-set in Area 3 by the qualifying vessel during a 
period of two consecutive calendar months in any calendar year during 
the period from March 25, 1991, through September 1, 1999, excluding 
the time period in calendar years 1991

[[Page 14926]]

and 1999 that are outside the qualification period (i.e., January 1, 
1991 through March 24, 1991 and September 2, 1999 through December 31, 
1999);
    (3) That at least 25,000 lb (11,340 kg) of lobster were landed by 
the qualifying vessel from any location during the qualifying year 
selected in paragraph (9)(7)(vi)(A)(2).
    (B) Trap allocation criteria. A qualified applicant must also 
establish with documentary proof the number of lobster traps fished by 
the qualifying vessel in Area 3 during the qualifying year. To the 
extent that the documentation so establishes, the Regional 
Administrator will then allocate a maximum number of lobster traps with 
which to fish in Area 3 as it relates to the sliding scale set forth in 
Sec.  697.19.
    (C) Documentary proof. To satisfy the Area 3 Initial Qualification 
and Trap Allocation Criteria set forth in paragraphs (9)(7)(vi)(A) and 
(B) of this section, the applicants will be limited to the following 
documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that would allow NMFS to identify the current permit holder 
in its data base, which would at a minimum include:the applicant's name 
and address, vessel name and permit number;
    (2) As proof of 200 trap/two consecutive month criterion, the 
applicant must provide - to the extent that the document(s) clearly and 
credibly establishes this criterion - one or more of the following 
types of documentation: copies of Federal Fishing Vessel Trip Reports 
(NOAA Form 88-30), Federal Port Agent Vessel Interview forms (NOAA Form 
88-30), Federal Sea Sampling Observer Reports or a Federal Fishing 
Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-176); 
personal vessel logbooks; state permit applications; and/or official 
state reporting documentation showing the number of lobster traps 
fished, including, but not limited to, state report cards, state vessel 
interview forms, license application forms, state sea sampling observer 
reports, and catch reports. These documents must have been created on 
or about the time of activity stated in the document. NMFS will not 
accept recent vessel log book entries or other recently created 
documents identified in this part as proof of fishing activity that 
occurred in prior years;
    (3) As proof that 25,000 lb (11,340 kg) of lobster were landed the 
applicant must provide - to the extent that the document(s) clearly and 
credibly establishes this criterion - one or more of the following 
types of documentation:copies of Federal Fishing Vessel Trip Reports 
(NOAA Form 88-30), Federal Port Agent Vessel Interview forms (NOAA Form 
88-30) or Federal Sea Sampling Observer Reports; personal vessel 
logbooks; official state reporting documentation showing the pounds of 
lobster landed, including, but not limited to, state report cards, 
state vessel interview forms, state sea sampling observer reports, and 
catch reports; and/or sales receipts or landing slips. These documents 
must have been created on or about the time of activity stated in the 
document. NMFS will not accept recent vessel log book entries or other 
recently created documents identified in this part as proof of fishing 
activity that occurred in prior years;
    (4) As proof of the number of traps fished during the qualifying 
year, NOAA Fisheries will accept to the extent that the document(s) 
clearly and credibly establishes this criterion one or more of the 
following types of documentation:copies of Federal Fishing Vessel Trip 
Reports (NOAA Form 88-30); Federal Port Agent Vessel Interview Forms 
(NOAA Form 88-30); Federal Sea Sampling Observer Reports; Federal 
Fishing Vessel and Gear Damage Compensation Fund Reports (NOAA Form 88-
176); personal vessel logbooks; tax returns and sales receipts; state 
permit applications; and/or official state reporting documentation 
showing the number of traps fished, including, but not limited to, 
state report cards, state vessel interview forms, license application 
forms, state sea sampling observer reports, and catch reports. 
Documentation may represent the number of traps fished during any point 
in the qualifying year and does not necessarily need to represent the 
2-consecutive month period used in paragraph (a)(7)(vi)(C)(2) of this 
section. These documents must have been created on or about the time of 
the activity stated in the document. NMFS will not accept recent vessel 
log book entries or other recently created documents identified in this 
part as proof of fishing activity that occurred in prior years;
    (5) All applicants must further provide a signed cover letter that 
identifies the documents provided and which qualifying and trap 
allocation criteria the documents are being used to establish;
    (6) All applicants must further provide an affidavit attesting 
under the penalties of perjury that each aspect of each of the 
qualification and trap allocation criteria has been met and the 
submitted supporting documentation is truthful, accurate and created 
contemporaneously with the dates identified on the documents. 
Specifically, each affidavit must attest in separate and specific 
paragraphs:
    (i) The name, address, lobster permit number and vessel of the 
applicant;
    (ii) That at least 200 lobster traps were set, allowed to soak, 
hauled back and re-set during the 2-month period in the qualifying year 
in the area being selected by the applicant, identifying those months 
and that year and further identifying which documents are being offered 
as proof of such;
    (iii) That at least 25,000 lb (11,340 kg) of lobster were landed 
during the qualifying year by the vessel, identifying that year and 
further identifying which documents are being offered as proof of such;
    (iv) The total number of traps set in the qualifying area during 
the qualifying year, identifying that area and year, and further 
identifying which documents are being offered as proof of such; and
    (v) That the submitted documents in support of these claims are 
truthful, accurate and created during the qualifying year.
    (7) All documents and submissions must be legible. Illegible 
documents or submissions will not be considered;
    (8) The Regional Administrator may, at his or her discretion, waive 
documentary obligations for certain elements of the qualification 
criteria for an applicant if NMFS itself has clear and credible 
evidence that would satisfy that qualification criteria for the 
applicant;
    (9) At the discretion of the Regional Administrator, all submitted 
documentation must be accompanied by a completed NMFS Lobster 
Historical Participation Application Form.
    (10) Applicants must retain copies of all the application materials 
and documentation submitted to NMFS while the application is pending.
    (D) Application period. The time period for submitting a historical 
qualification and trap allocation application begins on the date 30 
days after publication of this final rule (application period start 
date) and ends December 31, 2003.
    (1) Earlier submissions. Applicants who submit their applications 
to the Regional Administrator by July 31, 2003 (or in less than 60 days 
after the application period start date, whichever is later) will be 
eligible to receive a temporary interim permit that would allow the 
vessel to continue fishing with

[[Page 14927]]

traps in Area 3 at existing levels during the 2003 fishing season while 
NMFS processes the application. After processing and reaching a 
decision on this earlier submitted application, the Regional 
Administrator may then issue a revised permit that will indicate the 
vessel's Area 3 eligibility and trap allocation. This revised permit 
will supersede the temporary interim permit and be effective 
immediately.
    (2) Later submissions. Applicants who submit their applications to 
the Regional Administrator after July 31, 2003 (or more than 60 days 
after the application period start date, whichever is later), will not 
be eligible to receive a temporary interim permit that would allow 
continued fishing in Area 3 while NMFS processes the application. Even 
though they may be deemed qualified, applicants submitting applications 
in this later time period will not be eligible to fish in Area 3 until 
the 2004 fishing season.
    (vii) Participation requirements for EEZ Nearshore Management Area 
4 (Area 4). To fish for lobster with traps in Area 4, a Federal lobster 
permit holder must initially qualify into the area. To qualify, the 
permit holder seeking initial qualification must satisfy the following 
requirements in an application to the Regional Administrator:
    (A) Qualification criteria. To initially qualify into Area 4, the 
applicant must establish with documenting proof the following:
    (1) That the applicant possesses a current Federal lobster permit;
    (2) That at least 200 lobster traps were set, allowed to soak, 
hauled back, and re-set in Area 4 by the qualifying vessel during a 
period of two consecutive calendar months in any calendar year during 
the period from March 25, 1991, through September 1, 1999, excluding 
the time period in calendar years 1991 and 1999 that are outside the 
qualification period (i.e., January 1, 1991 through March 24, 1991 and 
September 2, 1999 through December 31, 1999).
    (B) Trap allocation criteria. A qualified applicant must also 
establish with documentary proof the number of lobster traps fished by 
the qualifying vessel in Area 4 during the qualifying year. To the 
extent that the documentation so establishes, the Regional 
Administrator will then allocate a maximum number of lobster traps with 
which to fish in Area 4, not to exceed 1,440 traps.
    (C) Documentary proof. To satisfy the Area 4 Initial Qualification 
and Trap Allocation Criteria set forth in paragraphs (A) and (B) of 
this section, the applicants will be limited to the following 
documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that would allow NMFS to identify the current permit holder 
in its data base, which would at a minimum include: the applicant's 
name and address, vessel name and permit number;
    (2) As proof of 200 trap/two consecutive month criterion, the 
applicant must provide - to the extent that the document(s) clearly and 
credibly establishes this criterion - one or more of the following 
types of documentation:Copies of Federal Fishing Vessel Trip Reports 
(NOAA Form 88-30), Federal Port Agent Vessel Interview forms (NOAA Form 
88-30), Federal Sea Sampling Observer Reports or a Federal Fishing 
Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-176); 
personal vessel logbooks; state permit applications; and/or official 
state reporting documentation showing the number of lobster traps 
fished, including, but not limited to, state report cards, state vessel 
interview forms, license application forms, state sea sampling observer 
reports, and catch reports. These documents must have been created on 
or about the time of activity stated in the document. NMFS will not 
accept recent vessel log book entries or other recently created 
documents identified in this part as proof of fishing activity that 
occurred in prior years;
    (3) As proof of the number of traps fished during the qualifying 
year, NOAA Fisheries will accept to the extent that the document(s) 
clearly and credibly establishes this criterion - one or more of the 
following types of documentation:Copies of Federal Fishing Vessel Trip 
Reports (NOAA Form 88-30); Federal Port Agent Vessel Interview Forms 
(NOAA Form 88-30); Federal Sea Sampling Observer Reports; Federal 
Fishing Vessel and Gear Damage Compensation Fund Reports (NOAA Form 88-
176); personal vessel logbooks; tax returns and sales receipts; state 
permit applications; and/or official state reporting documentation 
showing the number of traps fished, including, but not limited to, 
state report cards, state vessel interview forms, license application 
forms, state sea sampling observer reports, and catch reports. 
Documentation may represent the number of traps fished during any point 
in the qualifying year and does not necessarily need to represent the 
2-consecutive month period used in paragraph (a)(7)(vii)(C)(2) of this 
section. These documents must have been created on or about the time of 
the activity stated in the document. NMFS will not accept recent vessel 
log book entries or other recently created documents identified in this 
part as proof of fishing activity that occurred in prior years;
    (4) All applicants must further provide a signed cover letter that 
identifies the documents provided and which qualifying and trap 
allocation criteria the documents are being used to establish;
    (5) All applicants must further provide an affidavit attesting 
under the penalties of perjury that each aspect of each of the 
qualification and trap allocation criteria has been met and the 
submitted supporting documentation is truthful, accurate and created 
contemporaneously with the dates identified on the documents. 
Specifically, each affidavit must attest in separate and specific 
paragraphs:
    (i) The name, address, lobster permit number and vessel of the 
applicant;
    (ii) That at least 200 lobster traps were set, allowed to soak, 
hauled back and re-set during the two month period in the qualifying 
year in the area being selected by the applicant, identifying those 
months and that year and further identifying which documents are being 
offered as proof of such;
    (iii) The total number of traps set in the qualifying area during 
the qualifying year, identifying that area and year, and further 
identifying which documents are being offered as proof of such; and
    (iv) That the submitted documents in support of these claims are 
truthful, accurate and created during the qualifying year.
    (6) All documents and submissions must be legible. Illegible 
documents or submissions will not be considered;
    (7) The Regional Administrator may, at his or her discretion, waive 
documentary obligations for certain elements of the qualification 
criteria for an applicant if NMFS itself has clear and credible 
evidence that would satisfy that qualification criteria for the 
applicant;
    (8) At the discretion of the Regional Administrator, all submitted 
documentation must be accompanied by a completed NMFS Lobster 
Historical Participation Application Form.
    (9) Applicants must retain copies of all the application materials 
and documentation submitted to NMFS while the application is pending.
    (D) Application period. The time period for submitting a historical 
qualification and trap allocation application begins on the date 30 
days

[[Page 14928]]

after publication of this final rule (application period start date) 
and ends December 31, 2003.
    (1) Earlier submissions. Applicants who submit their applications 
to the Regional Administrator by July 31, 2003 (or in less than 60 days 
after the application period start date, whichever is later) will be 
eligible to receive a temporary interim permit that would allow the 
vessel to continue fishing in Area 4 at existing levels during the 2003 
fishing season while NMFS processes the application. After processing 
and reaching a decision on this earlier submitted application, the 
Regional Administrator may then issue a revised permit that will 
indicate the vessel's Area 4 eligibility and trap allocation. This 
revised permit will supercede the temporary interim permit and be 
effective immediately.
    (2) Later submissions. Applicants who submit their applications to 
the Regional Administrator after July 31, 2003 (or more than 60 days 
after the application period start date, whichever is later), will not 
be eligible to receive a temporary interim permit that would allow 
continued fishing in Area 4 while NMFS processes the application. Even 
though they may be deemed qualified, applicants submitting applications 
in this later time period will not be eligible to fish in Area 4 until 
the 2004 fishing season.
    (viii) Participation requirements for EEZ Nearshore Management Area 
5 (Area 5). To fish for lobster with traps in Area 5, a Federal lobster 
permit holder must initially qualify into the area. To qualify, the 
permit holder seeking initial qualification must satisfy the following 
requirements in an application to the Regional Administrator:
    (A) Qualification criteria. To initially qualify into Area 5, the 
applicant must establish the following:
    (1) That the applicant possesses a current Federal lobster permit;
    (2) That at least 200 lobster traps were set, allowed to soak, 
hauled back, and re-set in Area 5 by the qualifying vessel during a two 
consecutive calendar month period in any calendar year during the 
period from March 25, 1991, through September 1, 1999, excluding the 
time period in calendar years 1991 and 1999 that are outside the 
qualification period (i.e., January 1, 1991 through March 24, 1991 and 
September 2, 1999 through December 31, 1999).
    (B) Trap allocation criteria. A qualified applicant must also 
establish with documentary proof the number of lobster traps fished by 
the qualifying vessel in Area 5 during the qualifying year. To the 
extent that the documentation so establishes, the Regional 
Administrator will then allocate a maximum number of lobster traps with 
which to fish in Area 5, not to exceed 1,440 traps.
    (C) Documentary proof. To satisfy the Area 5 Initial Qualification 
and Trap Allocation Criteria set forth in paragraphs (9)(7)(viii)(A) 
and (B) of this section, the applicants will be limited to the 
following documentary proof:
    (1) As proof of a valid Federal lobster permit, the applicant must 
provide a copy of the vessel's current Federal lobster permit. The 
potential qualifier may, in lieu of providing a copy, provide NMFS with 
such data that would allow NMFS to identify the current permit holder 
in its data base, which would at a minimum include: the applicant's 
name and address, vessel name and permit number.
    (2) As proof of 200-trap/2-consecutive month criterion, the 
applicant must provide - to the extent that the document(s) clearly and 
credibly establishes this criterion - one or more of the following 
types of documentation:copies of Federal Fishing Vessel Trip Reports 
(NOAA Form 88-30), Federal Port Agent Vessel Interview forms (NOAA Form 
88-30), Federal Sea Sampling Observer Reports or a Federal Fishing 
Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-176); 
personal vessel logbooks; state permit applications; and/or official 
state reporting documentation showing the number of lobster traps 
fished, including, but not limited to, state report cards, state vessel 
interview forms, license application forms, state sea sampling observer 
reports, and catch reports. These documents must have been created on 
or about the time of activity stated in the document. NMFS will not 
accept recent vessel log book entries or other recently created 
documents identified in this part as proof of fishing activity that 
occurred in prior years.
    (3) As proof of the number of traps fished during the qualifying 
year, NOAA Fisheries will accept to the extent that the document(s) 
clearly and credibly establishes this criterion - one or more of the 
following types of documentation:copies of Federal Fishing Vessel Trip 
Reports (NOAA Form 88-30); Federal Port Agent Vessel Interview Forms 
(NOAA Form 88-30); Federal Sea Sampling Observer Reports; Federal 
Fishing Vessel and Gear Damage Compensation Fund Reports (NOAA Form 88-
176); personal vessel logbooks; tax returns and sales receipts; state 
permit applications; and/or official state reporting documentation 
showing the number of traps fished, including, but not limited to, 
state report cards, state vessel interview forms, license application 
forms, state sea sampling observer reports, and catch reports. 
Documentation may represent the number of traps fished during any point 
in the qualifying year and does not necessarily need to represent the 
2-consecutive month period used in paragraph (a)(7)(viii)(C)(2) of this 
section. These documents must have been created on or about the time of 
the activity stated in the document. NMFS will not accept recent vessel 
log book entries or other recently created documents identified in this 
part as proof of fishing activity that occurred in prior years;
    (4) All applicants must further provide a signed cover letter that 
identifies the documents provided and which qualifying and trap 
allocation criteria the documents are being used to establish;
    (5) All applicants must further provide an affidavit attesting 
under the penalties of perjury that each aspect of each of the 
qualification and trap allocation criteria has been met and the 
submitted supporting documentation is truthful, accurate and created 
contemporaneously with the dates identified on the documents. 
Specifically, each affidavit must attest in separate and specific 
paragraphs:
    (i) The name, address, lobster permit number and vessel of the 
applicant;
    (ii) That at least 200 lobster traps were set, allowed to soak, 
hauled back and re-set during the two month period in the qualifying 
year in the area being selected by the applicant, identifying those 
months and that year and further identifying which documents are being 
offered as proof of such;
    (iii) The total number of traps set in the qualifying area during 
the qualifying year, identifying that area and year, and further 
identifying which documents are being offered as proof of such; and
    (iv) That the submitted documents in support of these claims are 
truthful, accurate and created during the qualifying year.
    (6) All documents and submissions must be legible. Illegible 
documents or submissions will not be considered;
    (7) The Regional Administrator may, at his or her discretion, waive 
documentary obligations for certain elements of the qualification 
criteria for an applicant if NMFS itself has clear and credible 
evidence that would satisfy that qualification criteria for the 
applicant;
    (8) At the discretion of the Regional Administrator, all submitted 
documentation must be accompanied by

[[Page 14929]]

a completed NMFS Lobster Historical Participation Application Form.
    (9) Applicants must retain copies of all the application materials 
and documentation submitted to NMFS while the application is pending.
    (D) Application period. The time period for submitting a historical 
qualification and trap allocation application begins on the date 30 
days after publication of this Final Rule (application period start 
date) and ends December 31, 2003.
    (1) Earlier submissions. Applicants who submit their applications 
to the Regional Administrator by July 31, 2003 (or in less than 60 days 
after the application period start date, whichever is later) will be 
eligible to receive a temporary interim permit that would allow the 
vessel to continue fishing in Area 5 at existing levels during the 2003 
fishing season while NMFS processes the application. After processing 
and reaching a decision on this earlier submitted application, the 
Regional Administrator may then issue a revised permit that will 
indicate the vessel's Area 5 eligibility and trap allocation. This 
revised permit will supercede the temporary interim permit and be 
effective immediately.
    (2) Later submissions. Applicants who submit their applications to 
the Regional Administrator after July 31, 2003 (or more than 60 days 
after the application period start date, whichever is later), will not 
be eligible to receive a temporary interim permit that would allow 
continued fishing in Area 5 while NMFS processes the application. Even 
though they may be deemed qualified, applicants submitting applications 
in this later time period will not be eligible to fish in Area 5 until 
the 2004 fishing season.
    (ix) Qualifying year for vessels seeking to fish for lobster with 
traps in more than one area of Areas 3, 4, and 5. Any Federal lobster 
permit holder applying for a lobster trap allocation in more than one 
area amongst Areas 3, 4 and 5 must use the same qualifying year for all 
areas.
    (x) Appeal of denial of permit. Any applicant having first applied 
for initial qualification pursuant to Sec.  6 paragraphs (a)(7)(vi), 
(a)(7)(vii) and/or (a)(7)(viii) of this section, but having been denied 
a limited access American lobster permit for Areas 3, 4, and/or 5, may 
appeal to the Regional Administrator within 45 days of the date 
indicated on the notice of denial. Any such appeal must be in writing.
    (A) Grounds for appeal. There shall be two grounds for appeal:
    (1) Clerical error. It shall be grounds for appeal that the 
Regional Administrator erred clerically in concluding that the vessel 
did not meet the criteria in paragraphs (a)(7)(vi), (a)(7)(vii), and/or 
(a)(7)(viii) of this section. Errors arising from oversight or omission 
such as ministerial, mathematical or typographical mistakes would form 
the basis of such an appeal. Alleged errors in substance or judgment do 
not form a sufficient basis of appeal under this paragraph. The appeal 
must set forth the basis for the applicant's belief that the Regional 
Administrator's decision was made in error.
    (2) Documentary hardship. It shall be grounds for appeal that an 
otherwise qualified applicant is unable to produce qualification 
evidence due to documentary hardship. The hardship must have been 
caused by factors beyond the applicant's control, such as documents 
lost in a flood or fire. Failure to create the documents in the first 
instance, or simple loss of the document, or the intentional 
destruction or discarding of the document in the past by the appellant, 
or lacking the appropriate qualification documents due to inadvertence, 
carelessness or excusable neglect, do not constitute grounds for 
hardship under this paragraph. Appeals based on documentary hardship 
must establish the following:
    (i) Nature of the hardship. The appellant must identify the 
hardship and submit to the Regional Administrator a document 
corroborating the hardship, such as by insurance claims forms or police 
and fire reports; and
    (ii) Affidavits. The appellant must submit affidavits from current 
Federal permit holders so that three affidavits corroborate each of the 
qualification criteria for Area 3 as indicated in paragraph (a)(7)(vi) 
of this section, Area 4 as indicated in paragraph (a)(7)(vii) of this 
section, and/or for Area 5 as indicated in paragraph (a)(7)(viii) of 
this section. Each affidavit must clearly specify in separate and 
specific paragraphs:The name, address, Federal permit number and vessel 
name of the affiant; that the affiant can attest to by personal first-
hand knowledge that the qualifying vessel set, allowed to soak, hauled 
back and re-set at least 200 lobster traps during the 2-month period in 
the qualifying year in the area being selected by the applicant, 
identifying those months and that year and further identifying the 
nature of that knowledge; for Area 3 only, that the affiant can attest 
to by personal first-hand knowledge that the qualifying vessel landed 
at least 25,000 lb (11,340 kg) oflobster during the qualifying year, 
identifying that year and further identifying the nature of that 
knowledge; that the affiant can attest to by personal first-hand 
knowledge to the total number of traps that the applicant claims his or 
her vessel fished in the area in question during the qualifying year 
and further identifying the nature of that knowledge; that the affiant 
also fished in the area being claimed by theapplicant during the months 
in the qualifying year chosen by the applicant; and be signed under the 
penaltiesof perjury. The requirement that each qualification criteria 
must be independently affirmed by three Federal permit holders does not 
restrict the appellant to using the same three affiants for each 
qualification criterion, although the appellant is encouraged to do so. 
The term personal first-hand knowledge in this paragraph means 
information directly gained by the affiant and would not include 
information gained from word of mouth or hearsay.
    (B) Appellate timing and review. All appeals must be in writing and 
must be submitted to the Regional Administrator postmarked no later 
than 45 days after the date on NMFS' Notice of Denial of Initial 
Qualification application. Failure to register an appeal within 45 days 
of the date of the Notice of Denial will preclude any further appeal. 
The appellant may notify the Regional Administrator of his or her 
intent to appeal within the 45 days and request a time extension to 
procure the necessary affidavits and documentation. Time extensions 
shall be limited to 30 days and shall be calculated as extending 30 
days beyond the initial 45-day period that begins on the original date 
on the Notice of Denial. Appeals submitted beyond the deadlines stated 
herein will not be accepted. Upon receipt of a complete written appeal 
with supporting documentation in the time frame allowable, the Regional 
Administrator will then appoint an appeals officer who will review the 
appellate documentation. After completing a review of the appeal, the 
appeals officer will make findings and a recommendation, which shall be 
advisory only, to the Regional Administrator, who shall make the final 
agency decision whether to qualify the applicant.
    (C) Status of vessels pending appeal. The Regional Administrator 
may authorize a vessel to fish in Areas 3, 4 or 5 during an appeal. The 
Regional Administrator may do so by issuing a letter authorizing the 
appellant to fish up to 800 traps in Areas 4 or 5, or up to 1,800 traps 
in Area 3 during the pendency of the appeal. The Regional

[[Page 14930]]

Administrator's letter must be present onboard the vessel while it is 
engaged in such fishing in order for the vessel to be authorized. If 
the appeal is ultimately denied, the Regional Administrator's letter 
authorizing fishing during the appeal will become invalid 5 days after 
receipt of the notice of appellate denial or 15 days after the date on 
the notice of appellate denial, whichever occurs first.
* * * * *
    (f) * * *
    (1) * * *(v) The application is for initial qualification for 
access to Area 3, 4 or 5 pursuant to the historical participation 
process in paragraphs(a)(7)(vi)(D), (a)(vii)(D), and (a)(viii)(D) of 
this section.
* * * * *

    4. In Sec.  697.18, paragraphs (a), (b), and (h) are revised to 
read as follows:


Sec.  697.18  Lobster management areas.

* * * * *
    (a) EEZ Nearshore Management Area 1. EEZ Nearshore Management Area 
1 is defined by the area, including state and Federal waters that are 
nearshore in the Gulf of Maine, bounded by straight lines connecting 
the following points, in the order stated, and the coastline of Maine, 
New Hampshire, and Massachusetts to the northernmost point of Cape Cod:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
A                                               43[deg]58'N  67[deg]22'W
                                                          .            .
B                                               43[deg]41'N  68[deg]00'N
                                                          .            .
C                                               43[deg]12'N  69[deg]00'W
                                                          .            .
D                                               42[deg]49'N  69[deg]40'W
                                                          .            .
E                                               42[deg]15.5  70[deg]40'W
                                                        'N.            .
F                                               42[deg]10'N  69[deg]56'W
                                                          .            .
G                                               42[deg]05.5  70[deg]14'W
                                                        'N.            .
G1                                              42[deg]04.2  70[deg]17.2
                                                       5'N.         2'W.
G2                                              42[deg]02.8  70[deg]16.1
                                                       4'N.          'W.
G3                                              42[deg]03.3  70[deg]14.2
                                                       5'N.          'W.
------------------------------------------------------------------------

    (1) From point ``G3'' along the coastline of Massachusetts, 
including the southwestern end of the Cape Cod Canal, continuing along 
the coastlines of Massachusetts, New Hampshire, Maine, and the seaward 
EEZ boundary back to Point A.
    (2) [Reserved]
    (b) EEZ Nearshore Management Area 2. EEZ Nearshore Management Area 
2 is defined by the area, including state and Federal waters that are 
nearshore in Southern New England, bounded by straight lines connecting 
the following points, in the order stated:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
H                                               41[deg]40'N  70[deg]05'W
                                                          .            .
I                                               41[deg]15'N  70[deg]05'N
                                                          .            .
J                                               41[deg]21.5  69[deg]16.5
                                                        'N.          'W.
K                                               41[deg]10'N  69[deg]06.5
                                                          .          'W.
L                                               40[deg]55'N  68[deg]54'W
                                                          .            .
M                                               40[deg]27.5  71[deg]14'W
                                                        'N.            .
N                                               40[deg]45.5  71[deg]34'W
                                                        'N.            .
O                                               41[deg]07'N  71[deg]43'W
                                                          .            .
P                                               41[deg]06.5  71[deg]47'W
                                                        'N.            .
Q                                               41[deg]11.5  71[deg]47.2
                                                        'N.         5'W.
R                                               41[deg]18.5  71[deg]54.5
                                                        'N.           'W
------------------------------------------------------------------------

    (1) From point ``R'' along the maritime boundary between 
Connecticut and Rhode Island to the coastal Connecticut/Rhode Island 
boundary and then back to point ``H'' along the Rhode Island and 
Massachusetts coast, including the northeastern end of the Cape Cod 
Canal.
    (2) [Reserved]
* * * * *
    (h) EEZ Nearshore Outer Cape Lobster Management Area. EEZ Nearshore 
Outer Cape Lobster Management Area is defined by the area, including 
state and Federal waters off Cape Cod, bounded by straight lines 
connecting the following points, in the order stated:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
F                                               42[deg]10'N  69[deg]56'W
                                                          .            .
G                                               42[deg]05.5  70[deg]14'W
                                                        'N.            .
G1                                              42[deg]04.2  70[deg]17.2
                                                       5'N.         2'W.
G2                                              42[deg]02.8  70[deg]16.1
                                                       4'N.          'W.
G4                                              41[deg]52.'  70[deg]07.4
                                                         N.         9'W.
G5                                              41[deg]54.4  70[deg]03.9
                                                       6'N.         9'W.
------------------------------------------------------------------------

    (1) From Point ``G5'' along the outer Cape Cod coast to Point 
``H'':

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
H                                               41[deg]40'N  70[deg]05'W
                                                          .            .
H1                                              41[deg]18'N  70[deg]05'W
                                                          .            .
------------------------------------------------------------------------

    (2) From Point ``H1'' along the eastern coast of Nantucket Island 
to Point ``I'':

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
I                                               41[deg]15'N  70[deg]00'W
                                                          .            .
J                                               41[deg]21.5  69[deg]16'W
                                                        'N.            .
------------------------------------------------------------------------

    (3) From Point ``J'' back to Point ``F''.
* * * * *

    5. Section 697.19 is revised to read as follows:


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

    (a) Trap limits for vessels fishing or authorized to fish in any 
Nearshore Management Area. (1) Through August 31, 2003, vessels fishing 
in or issued a management area designation certificate or valid limited 
access American lobster permit specifying one or more EEZ Nearshore 
Management Area(s), whether or not in combination with the Area 2/3 
Overlap, shall not fish with, deploy in, possess in, or haul back from 
such area more than 800 lobster traps.
    (2) Beginning September 1, 2003, vessels fishing in or issued a 
valid limited access American lobster permit specifying one or more of 
EEZ Nearshore Management Areas 1, 2, or the Outer Cape Management Area, 
regardless of whether it is in combination with the Area 2/3 Overlap, 
shall not fish with, deploy in, possess in, or haul back from such 
area(s) more than 800 lobster traps, except as noted in paragraph (d) 
of this section.
    (3) Beginning September 1, 2003, vessels fishing in or issued a 
management area designation certificate or valid limited access 
American lobster permit specifying EEZ Management Area 4 may not fish 
with, deploy in, possess in, or haul back from such areas more than the 
number of lobster traps allocated by the Regional Administrator 
pursuant to the qualification process set forth at Sec.  
697.4(a)(7)(vii), which will not exceed 1,440 lobster traps, except as 
noted in paragraphs (c) and (e) of this section.
    (4) Beginning September 1, 2003, vessels fishing in or issued a 
management area designation certificate or valid limited access 
American lobster permit specifying EEZ Management Area 5 may not fish 
with, deploy in, possess in, or haul back from such areas more than the 
number of lobster traps allocated by the Regional Administrator 
pursuant to the qualification process set forth at Sec.  
697.4(a)(7)(viii), which will not exceed 1,440 lobster traps, except as 
noted in paragraphs (c) and (e) of this section unless the vessel is 
operating under an Area 5 Trap Waiver permit issued under Sec.  697.26.
    (b) Trap limits for vessels fishing or authorized to fish in the 
EEZ Offshore Management Area. (1) Through August 31, 2003, vessels 
fishing only in or issued a management area designation certificate or 
valid limited access American lobster permit specifying only EEZ 
Offshore Management Area 3, or, specifying only EEZ Offshore Management 
Area 3 and the Area 2/3 Overlap, may not fish with, deploy in, possess 
in, or haul back from such areas more than 1,800 lobster traps.
    (2) Beginning September 1, 2003, for fishing years 2003, 2004, 
2005, 2006, and beyond until changed, vessels fishing only in or issued 
a management area designation certificate or valid limited access 
American lobster permit specifying only EEZ Offshore Management Area 3, 
or, specifying only EEZ Offshore Management Area 3 and the Area 2/3 
Overlap, may not fish with, deploy in, possess in, or haul back from 
such areas more the number of lobster

[[Page 14931]]

traps allocated by the Regional Administrator pursuant to the 
qualification process set forth at Sec.  697.4(a)(7)(vi) and the 
sliding maximum trap limits identified in Table 1 to part 697, except 
as noted in paragraphs (c) and (e) of this section.
    (c) Lobster trap limits for vessels fishing or authorized to fish 
in more than one EEZ Management Area. A vessel owner who elects to fish 
in more than one EEZ Management Area may not fish with, deploy in, 
possess in, or haul back from any of those elected management areas 
more lobster traps than the lowest number of lobster traps allocated to 
that vessel for any one elected management area.
    (d) Conservation equivalent trap limits in New Hampshire state 
waters. Notwithstanding any other provision, any vessel with a Federal 
lobster permit and a New Hampshire Full Commercial Lobster license may 
fish up to a maximum of 1,200 lobster traps in New Hampshire state 
waters, to the extent authorized by New Hampshire lobster fishery 
regulations. However, such vessel may not fish, possess, deploy, or 
haul back more than 800 lobster traps in the Federal waters of EEZ 
Nearshore Management Area 1, and may not fish more than a combined 
total of 1,200 lobster traps in the Federal and New Hampshire state 
waters portions of EEZ Nearshore Management Area 1.
    (e) Potential Modifications to Area 3, Area 4, and/or Area 5 Trap 
Limits in Fishing Year 2003. The Regional Administrator may issue 
temporary interim Federal American lobster trap fishing permits 
pursuant to Sec.  697.4 for Areas 3, 4 and/or 5 prior to completion of 
NMFS' review of the Area 3, Area 4 and/or Area 5 qualification 
applications, if the applicant has designated one or more of those 
areas on their 2003 Federal lobster permit. These temporary permits 
will become effective on September 1, 2003, for those applicants who 
have applied in the manner set forth in Sec.  697.4(a)(7)(vi)(D)(1), 
(a)(7)(vii)(D)(1), and/or (a)(7)(viii)(D)(1). Any vessel issued a 
temporary trap fishing permit for Area 3 may fish up to 1,800 lobster 
traps, except as noted in paragraph (c) of this section. Any vessel 
issued a temporary trap fishing permit for Area 4 and/or 5 shall not 
fish more than 800 traps. The temporary interim permit will remain 
valid during fishing year 2003 until such time the Regional 
Administrator has reviewed and either approved or denied the temporary 
permitee's historical participation application. If approved, the 
Regional Administrator may issue a revised permit and/or management 
area designation certificate, depending on whether the applicant 
designated that area on his or her 2003 Federal permit at the beginning 
of the year. Any traps being fished, deployed, or possessed by the 
qualified Federal permit holder in excess of the number of traps as 
described in paragraphs (a)(3), (a)(4), and (b)(2) of this section must 
be removed from the water within 14 days after receipt of the revised 
permit, or 30 days after the date it is sent, whichever comes first. 
Revised Federal lobster permits must be retained aboard the fishing 
vessel at all times.
    (f) Trap tag requirements for vessels fishing with lobster traps. 
Any lobster trap fished in Federal waters must have a valid Federal 
lobster trap tag permanently attached to the trap bridge or central 
cross-member. Any vessel with a Federal lobster permit may not possess, 
deploy, or haul back lobster traps in any portion of any management 
area that do not have a valid, federally recognized lobster trap tag 
permanently attached to the trap bridge or central cross-member.
    (g) Maximum lobster trap tags authorized for direct purchase. In 
any fishing year, the maximum number of tags authorized for direct 
purchase by each permit holder is the applicable trap limit specified 
in paragraphs (a) and (b) of this section plus an additional 10 percent 
to cover trap loss.
    (h) EEZ Management area 5 trap waiver exemption. Any vessel issued 
an Area 5 Trap Waiver permit under Sec.  697.4(p) is exempt from the 
provisions of this section.

    6. In Sec.  697.25, paragraphs (b) and (c) are redesignated as 
paragraphs (c) and (d), respectively and new paragraph (b) is added to 
read as follows:


Sec.  697.25  Adjustment to management measures.

* * * * *
    (b) Conservation equivalency measures. The Regional Administrator 
may consider future recommendations for modifications to Federal 
regulations based on conservation equivalency for American lobster that 
are formally submitted to him/her in writing by the ASMFC. These 
recommendations must, for consideration by the Regional Administrator, 
contain the following supporting information:
    (1) A description of how Federal regulations should be modified;
    (2) An explanation of how the recommended measure(s) would achieve 
a level of conservation benefits for the resource equivalent to the 
applicable Federal regulations;
    (3) An explanation of how Federal implementation of the 
conservation equivalent measure(s) would achieve ISFMP objectives, be 
consistent with the Magnuson-Stevens Act national standards, and be 
compatible with the effective implementation of the ISFMP; and
    (4) A detailed analysis of the biological, economic, and social 
impacts of the recommended conservation equivalent measure(s). After 
considering the recommendation and the necessary supporting 
information, NMFS may issue a proposed rule to implement the 
conservation equivalent measures. After considering public comment, 
NMFS may issue a final rule to implement such measures.
* * * * *
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[FR Doc. 03-7067 Filed 3-24-03; 4:42 pm]
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