[Federal Register Volume 72, Number 118 (Wednesday, June 20, 2007)]
[Proposed Rules]
[Pages 33955-33966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11964]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 0612243160-7167-01]
RIN 0648-AU07


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Lobster Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes new Federal American lobster (Homarus 
americanus) regulations that would implement further minimum carapace 
length (gauge) increases, escape vent size increases, and trap 
reductions in the offshore American lobster fishery, consistent with 
recommendations for Federal action in the Atlantic States Marine 
Fisheries Commission's (Commission) Interstate Fishery Management Plan 
for American Lobster (ISFMP) and pending management actions of the 
Commission's American Lobster Management Board (Board).

DATES: Comments must be received no later than 5 p.m. eastern standard 
time on or before August 6, 2007.

ADDRESSES: Written comments should be sent to Harold Mears, Director, 
State, Federal and Constituent Programs Office, Northeast Region, NMFS, 
One Blackburn Drive, Gloucester, MA 01930. Comments may also be sent 
via e-mail to [email protected], via fax (978) 281-9117 or via the 
Federal e-Rulemaking portal at www.regulations.gov.

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

SUPPLEMENTARY INFORMATION:

Statutory Authority

    The proposed regulations would modify Federal lobster conservation 
management measures in the Exclusive Economic Zone (EEZ) under the 
authority of section 803(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (Atlantic Coastal Act) 16 U.S.C 5101 et 
seq., which states, in the absence of an approved and implemented 
Fishery Management Plan under the Magnuson-Stevens Fishery Conservation 
and Management Reauthorization Act (Magnuson-Stevens Act) (16 U.S.C. 
1801 et seq.) and, after

[[Page 33956]]

consultation with the appropriate Fishery Management Council(s), the 
Secretary of Commerce may implement regulations to govern fishing in 
the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. The 
regulations must be (1) compatible with the effective implementation of 
an ISFMP developed by the Commission and (2) consistent with the 
national standards set forth in section 301 of the Magnuson-Stevens 
Act.

Purpose and Need for Management

    American lobsters are managed within the framework of the 
Commission. The Commission serves to develop fishery conservation and 
management strategies for certain coastal species and coordinates the 
efforts of the states and Federal Government toward concerted 
sustainable ends. The Commission, under the provisions of the Atlantic 
Coastal Act, decides upon a management strategy as a collective and 
then forwards that strategy to the states and Federal government, along 
with a recommendation that the states and Federal Government take 
action (e.g., enact regulations) in furtherance of this strategy. The 
Federal Government is obligated by statute to support of the 
Commission's overall efforts. Relevant to this action, the Commission's 
Lobster Board recommended that the Federal Government create 
regulations consistent with the measures set forth in the Commission's 
Lobster ISFMP as identified in Addenda II, III, and IV and XI to 
Amendment 3 of the ISFMP. As initially adopted, these addenda included 
management measures for several lobster conservation management areas 
(LCMAs/Areas) including Area 3, the Outer Cape Cod (Outer Cape) Area 
and Area 1. Specifically, these measures included an escape vent size 
increase for both Area 1 and the Outer Cape Area and a series of gauge 
increases for the Outer Cape Area in addition to the measures 
considered for Area 3. However, the Board, in May 2006, determined that 
only the Area 3 measures were required and repealed those specific to 
the Outer Cape and Area 1. Consequently, NMFS proposes to implement 
regulatory measures in three general categories for LCMA 3: 1) gauge 
size increases (recommended in Addenda II); 2) escape vent increases 
(recommended in Addendum IV); and 3) trap reductions (recommended in 
Addendum IV and Addendum XI). The proposed regulatory changes serve as 
the Federal government's response to the Commission's requested action 
and are consistent with NMFS' resource objectives, legal mandates, and 
overall practical/managerial requirements.
    The best available science suggests and supports the need for 
broodstock protection and effort reductions for the Southern New 
England (SNE) stock. The SNE stock encompasses all of Areas 4, 5, and 
6, and part of Areas 2 and 3. The Commission has adopted measures for 
the areas other than Area 3 that NMFS will address in future and 
ongoing rulemakings. The Area 3 broodstock and effort control measures 
relevant to this action directly address the concerns of the most 
recent stock assessment.
    The peer-reviewed lobster stock assessment in 2005 showed that the 
American lobster resource presents a mixed picture (see the Commission 
Stock Assessment Report No. 06-03, published January 2006 at 
www.asmfc.org.). One theme throughout the assessment was the high 
fishing effort and high mortality rates in all three stock areas. The 
assessment indicated that there is stable abundance for the Georges 
Bank (GBK) stock and much of the Gulf of Maine (GOM) stock and 
decreased abundance and recruitment, yet continued high fishing 
mortality rates, for the SNE stock and in Statistical Area 514 
(Massachusetts Bay and Stellwagen Bank) in the GOM stock. Of particular 
concern in the 2005 peer-reviewed stock assessment report is the SNE 
stock, where depleted stock abundance and recruitment coupled with high 
fishing mortality rates over the past few years led the stock 
assessment and peer review panel to recommend additional harvest 
restrictions. The SNE stock encompasses all of Areas 4, 5, and 6, and 
part of Areas 2 and 3. Overall, stock abundance in the GOM is 
relatively high with recent fishing mortality comparable to the past. 
The GOM stock encompasses all of Area 1, and part of both Area 3 and 
the Outer Cape Management Area. Currently, high effort levels in GOM 
continue in concert with high stock abundance, although high effort 
levels are not likely to be supportable if abundance returns to long-
term median levels. The GBK stock seems stable, with current abundance 
and fishing mortality similar to the 20-year average. The GBK stock 
encompasses part of Areas 2, 3, and the Outer Cape Management Area. 
While the report noted the female proportion of the stock is increasing 
slightly, it also cautioned that further increases in effort are not 
advisable, hence, the need for additional effort reduction and 
broodstock protection.

Background

    The Commission's American lobster management strategy is neither 
predicated upon a single measure nor is it contained within a single 
document. Rather, the structure is based on facilitating ongoing 
adaptive management with necessary elements implemented over time. The 
Commission set forth the foundation of its American Lobster ISFMP in 
Amendment 3 in December 1997. The Federal Government issued compatible 
regulations that complemented Amendment 3 in December 1999. Amendment 3 
regulations established assorted measures that directly, even if 
preliminarily, address overfishing (e.g., trap caps and minimum gauge 
sizes). Amendment 3 created seven lobster management areas and 
established industry-led lobster management teams that make 
recommendations for future measures to end overfishing, based on the 
current status of the stocks. Additional management measures were set 
forth in subsequent Amendment 3 addenda including measures to limit 
future access to LCMAs 3, 4, and 5 in Addendum I (approved by the 
Commission in August 1999 and compatible Federal regulations enacted 
March 2003); and measures to increase protection of American lobster 
broodstock in Addenda II and III (approved by the Commission in 
February 2001 and February 2002, respectively, and compatible Federal 
regulations enacted March 2005). Addenda II and III measures include 
gauge increases and mandatory v-notch requirements for Area 3. 
Additional lobster management measures, notably measures that would 
control effort, were set forth in later addenda, including Addendum 
III, and relative to this action, Addendum IV (approved by the 
Commission in December 2003)that included additional trap reductions in 
Area 3; Addendum V (approved by the Commission in March 2004) that 
included a reduced trap cap in Area 3; Addendum VI (approved by the 
Commission in February 2005); Addendum VII (approved by the Commission 
in November 2005); Addendum VIII (approved by the Commission in May 
2006); Addendum IX (approved by the Commission in October 2006), 
Addendum X (approved by the Commission in October 2006), and Addendum 
XIthat includes recommendations for additional trap reductions and a 
delay in the escape vent size increase in Area 3 (approved by the 
Commission in May 2007).
    This current Federal rulemaking is one of three (3) Federal 
rulemakings that

[[Page 33957]]

have their genesis, at least in part, in Commission Addenda II and III.
    The first Addenda II--III rulemaking began with the publishing, in 
the Federal Register, of an advance notice of proposed rulemaking 
(``ANPR'') on May 24, 2001 (66 FR 28726), and ended with the publishing 
of a final rule on March 14, 2006 (71 FR 13027). This first rulemaking 
focused primarily on the broodstock protection measures set forth in 
the two addenda, and it was this similarity in purpose that resulted in 
NMFS combining the addenda recommendations into a single rulemaking. 
Addenda II and III, however, also contained additional management 
recommendations; most notably effort control measures and ``if 
necessary'' measures, so called because they would be considered only 
if determined necessary in later years. These separate measures became 
more prominent as the Commission issued later addenda, causing NMFS to 
start a second rulemaking involving Addenda II--III in 2005.
    The second Addenda II--III rulemaking actually focuses more on 
Commission Addenda IV--VII. This second rulemaking formally began with 
NMFS' publication of an ANPR in a Federal Register notice dated May 10, 
2005 (70 FR 24495), and remains ongoing. Specifically, NMFS determined 
that the Addenda II--III effort control measures were modified 
substantively and revised by the Commission's Addenda IV, V, VI, and 
VII. Overall, measures proposed in those Addenda involve additional 
limited access programs for Area 2 and the Outer Cape LCMAs and 
proposals to transfer traps in LCMAs 2, 3 and the Outer Cape. As a 
result, NMFS will analyze the Addenda II--III effort control programs 
as a component of the larger more detailed second rulemaking associated 
with the effort control recommendations in Addenda IV--VII. NMFS is 
still engaged in this second proposed rulemaking, and the Commission's 
effort control measures are still under analysis.
    The third proposed Addenda II--III rulemaking, which is represented 
in this proposed rule, also involves later Commission action, most 
notably draft Addendum XI. This third proposed rulemaking formally 
began on December 13, 2005, with NMFS' publication of an ANPR in the 
Federal Register (70 FR 73717). The rulemaking initially focused on 
Addenda IIIII's so called ``if necessary'' measures because, although 
the measures were in Addenda II--III at the time of the first Federal 
rulemaking, the Commission had not actually deemed them necessary until 
too late in the process for their inclusion in the March 26, 2006, 
final rule. Ultimately, the Commission modified the requirements of the 
ISFMP, voting on May 8, 2006 that the ``if necessary'' measures were, 
in fact, required only in LCMA 3, but not in the other LCMAs. The 
repealed measures include the additional escape vent size increase for 
LCMA 1 (2 inches x 5\3/4\ inches (5.08 cm x 14.61 cm) rectangular or 
2\5/8\ inches (6.67 cm) circular by 2008); in the Outer Cape Cod LCMA, 
four additional 1/32 inch (0.08 cm) gauge increases up to 3\1/2\ inches 
(8.89 cm) by July 2008 and an escape vent increase to 2\1/16\ inches x 
5\3/4\ inches (5.24 cm x 14.61 cm) rectangular or 2\11/16\ inch (6.83 
cm) circular by 2008.
    The Commission voted to approve draft Addendum XI for public 
comment on January 31, 2007, and the document was approved as part of 
the ISFMP on May 8, 2007. The Addendum includes two additional 2.5 
percent trap reductions for LCMA 3 and a delay in the implementation of 
the LCMA 3 escape vent size increase until 2010. NMFS incorporated the 
Addendum XI proposed measures in this third rulemaking in an ANPR filed 
in the Federal Register on December 18, 2006 (71 FR 75705), with the 
expectation that the Board would ultimately adopt the measures as part 
of the lobster management framework.
    At present, most states have issued their complementary 
regulations; the Federal Government has not. Most Federal lobster 
permit holders also hold a state lobster license, and they must abide 
by the ISFMP measures by virtue of their state license, even if the 
same restrictions have not yet been placed on their Federal permit. 
Generally, the exception to state coverage of all ISFMP measures, under 
the Commission's ISFMP, is for states that are classified as de minimis 
states. The focus of the analysis of measures in this action is for 
Federal lobster permit holders from states that have not implemented 
all measures in the Commission's ISFMP, and, in the case of this 
proposed rule, exceptions to coverage exist for Federal permit holders 
from Connecticut, New Jersey, and the de minimis states. Both the 
states of New Jersey and Connecticut voted to approve Addenda II and 
III and it is expected that those states will issue compatible 
regulations in the immediate future.Certain states at the southern end 
of the range qualify for de minimis status because a given state's 
declared annual landings, averaged over a two-year period, amount to 
less than 40,000 lb (18,144 kg) of American lobster. While de minimis 
states are required to promulgate all coastwide measures contained in 
Section 3.1 of Amendment 3, many of the area-specific measures for Area 
3 identified in this action are not required to be implemented by the 
de minimis states. However, Federal lobster regulations apply to all 
entities fishing for lobster in Federal waters, including Federal 
permit holders in de minimis states.
    Based on the preliminary impact analysis relative to this proposed 
rule, a negligible number of Federal trap and non-trap vessels would be 
impacted by adoption of the proposed measures. The impacts are 
concentrated on those few vessels hailing from Connecticut, New Jersey 
and the de minimis states. However, should Connecticut and New Jersey 
ultimately implement these measures as mandated by the Commission's 
ISFMP, as expected, the impacts will be reduced even further.Impacts in 
the de minimis states are also expected to be minimal; by definition, 
the lobster catch has to be small to even qualify for de minimis status 
and lobster catch is not a principle component of the overall fishery 
in those states.In addition to the minimal impacts associated with 
Federal action, adoption of the proposed measures into the Federal 
regulations will facilitate the cooperative state and Federal 
enforcement of lobster regulations by reducing the regulatory gap 
between the states and NMFS.

Comments and Responses

    Addenda II through VII to Amendment 3 of the Atlantic States Marine 
Fisheries Commission's Interstate Fishery Management Plan (ISFMP) for 
American lobster are part of an overall lobster fishery management 
regime which is intended to achieve a healthy resource, develop a 
management regime that provides for sustainable harvest, maintains 
opportunities for participation, and provides for the cooperative 
development of conservation measures by stakeholders. In an ANPR 
published in the Federal Register on December 13, 2005 (70 FR 73717), 
NMFS sought public comment on the implementation of further minimum 
gauge and escape vent size increases in the Federal lobster fishery 
consistent with the Commission's recommendations for Federal action 
across multiple Lobster Conservation Management Areas. Subsequent to 
that publication, many LCMA-specific Commission recommendations were 
modified in response to information in an updated peer-reviewed stock 
assessment published in January 2006 (see detailed information in 
Background section). Consequently, NMFS published an

[[Page 33958]]

ANPR on December 18, 2006 in the Federal Register (71 FR 75706), which 
revises the previous ANPR and, again, invited comments on the 
implementation of updated gauge increase, escape vent size increase, 
and trap reductions in the offshore American lobster fishery, 
consistent with the ISFMP for American lobster. At the time of 
publication, the latest ANPR included measures that had yet to be 
adopted by the Board, in the interest of time required to promulgate 
Federal regulations and to facilitate evaluation of the associated 
impacts by bundling like measures into a single analysis. This section 
is specific to the comments received on the measures relevant to this 
proposed rule. Therefore, comments from the first ANPR regarding 
measures that are no longer related to this rulemaking are not 
addressed here. NMFS notes that the public is encouraged to submit 
comments on this proposed rule during the comment period, as specified 
in the DATES section of this document.

Overall Summary of Comments Received in Response to the First ANPR

    To summarize, a total of 17 comments were received in response to 
the two ANPR's that were published relevant to this action. The 
comments ranged from full support of the proposed measures to 
recommendations of alternate measures and requests for stricter 
enforcement. Half of the comments support all or a portion of the 
measures to increase gauge size, increase escape vent size, and 
incrementally reduce trap allocations. A total of 6 comments proposed 
alternative conservation measures, including alternate gauge increases, 
a maximum size, and establishing a buyback program. Some comments 
voiced concerns that stricter regulations and additional enforcement 
will be necessary.

Breakdown of Comments Received for Each Request for Comments

ANPR published on December 13, 2005 (70 FR 73717)
    Five comments were received, of which two fully supported the suite 
of measures that are required by Amendment 3 of the ASMFC American 
Lobster FMP. The additional three commenters were generally opposed to 
the rulemaking for a myriad of reasons. Of these, one proposed to halt 
the minimum gauge increases at 3\7/16\ inches (8.7 cm) (the July 2006 
level) and simultaneously enact a maximum gauge size at 6.0 inches 
(15.24 cm), for the protection of large female lobsters. Another stated 
that the conservation measures included in the ANPR were not strong 
enough. The last noted that as a recent stock assessment has been 
completed, it would be imprudent to implement management measures based 
on an outdated stock assessment.
ANPR published on December 18, 2006 (71 FR 75706)
    A total of 11 comments were received in response to the ANPR 
published on December 18, 2006. Four of the commenters supported the 
entire suite of measures addressed in the ANPR. Two additional comments 
supported a specific portion of the proposed regulations. One voiced 
support for the proposed vent increase, and recommended that the 
increases come all at once instead of incrementally. The second 
supported the gauge increase but could not support a future maximum 
size limit. Several other commenters proposed additional initiatives 
such as a maximum size, a permit buyback, a trap fishing moratorium on 
Stellwagen Bank, and an 1,800 trap limit in Area 3 with a subsequent 10 
percent trap reduction. Two commenters called for further enforcement 
of lobster regulations.

Response to Comments

    Comment 1: Six of the 11 commenters responding to the second ANPR 
are in favor of the gauge increases and escape vent size increases and 
the associated delay of the vent increase until 2010. Five of those six 
commenters are in favor of the full suite of trap reductions proposed 
in this action.
    Response: NMFS believes that adoption of these measures will 
benefit the industry and the lobster resource and will create a more 
consistent set of state and Federal lobster regulations which will 
facilitate enforcement.
    Comment 2: Within responses to the first ANPR, several voice their 
disapproval. Particularly, one opposed the proposed gauge increases. 
Additionally, another noted that the recent stock assessment should be 
considered before management decisions are made.
    Response: Since the first ANPR was published, a new stock 
assessment was released. Its findings prompted the Board to eliminate 
many of the management measures that were previously included in the 
ISFMP (see Background and Management Measures Considered but Rejected 
at this Time). As a result, this rulemaking is consistent with the 
revised recommendations for Federal action in the ISFMP. It also 
considers the findings of the most recent stock assessment published in 
January 2006 (see Purpose and Need for Management).
    Comment 3: One commenter expressed support for a single vent 
increase as proposed, since frequent escape vent changes can wear out 
traps and are difficult to perform at sea.
    Response: Escape vents facilitate lobster survivability and can, 
depending upon the minimum size and corresponding vent size, allow 
legal sized lobsters a chance to escape from the traps, with 
unquantifiable benefits to egg production. However, given the proposed 
gauge increases in this action, consistent with the ISFMP and Area 3 
LCMT recommendations, NMFS proposes to postpone the next escape vent 
size increase until 2010. This may provide some relief to the offshore 
industry regarding the costs and time associated with replacing the 
vent. Any foregone biological benefits associated with not requiring 
the larger vent prior to 2010, will likely be offset by the increase in 
the minimum size over the next two years, to 3\1/2\ inches (8.89 cm). 
NMFS Trawl Survey data has indicated that the median lobster size for 
the Georges Bank stock far exceeds 3\1/2\ inches (8.89 cm), so most 
lobster that are caught in the traps are likely at or above the 
intended 3\1/2\ inch (8.89 cm) minimum size.Further, to the extent that 
a sub-legal lobster is unable to use a smaller escape vent, the best 
available science indicates that lobster bycatch experience low 
mortality when returned to the sea.
    Comment 4: Three commenters recommended additional measures to what 
was included in either ANPR including a permit buyback program, a trap 
limit of 1,800 traps, with a subsequent 10 percent trap reduction, and 
a trap moratorium on Stellwagen Bank.
    Response: The Area 3 LCMT has proposed a plan for a lobster trap 
buyback in Area 3 and the plan is under development and has not yet 
been analyzed by the Commission or recommended to NMFS and would be 
premature to implement at this time. NMFS initially implemented an 
1,800 fixed trap limit in Area 3 in 2000. However, in response to a 
previous stock assessment indicating that all three stocks of lobster 
were overfished, NMFS implemented a limited entry program for the 
lobster trap industry in Area 3 in a rulemaking filed in March 2003 to 
cap and control fishing effort in the offshore EEZ. This program was 
based on the recommendations of the Area 3 lobster trap industry and 
consistent with the recommendations for Federal action in the ISFMP in 
Addendum I to Amendment 3. Area 3

[[Page 33959]]

is now limited to only 139 lobster trap vessels, each with a specific 
trap limit based on documented fishing history. Future opportunities 
for trap reductions from a conservation tax from a inter-transferable 
trap program, currently under analysis by NMFS in a separate 
rulemaking, consistent with the ISFMP and industry recommendations, 
could, if adopted into the Federal regulations, assist in the further 
reduction of traps in Area 3. NMFS will seek public comment on this 
issue in a separate rulemaking currently under development.
    One respondent recommended a moratorium on traps on Stellwagen Bank 
to assist in the survival of endemic and seasonally migrating fauna. A 
closed area on Stellwagen Bank, however, is not a formal part of the 
interjurisdictional lobster management program and if implemented by 
the Federal Government only, would likely increase regulatory 
incongruence between jurisdictions. Seasonal closed areas are in effect 
south of Georges Bank to address gear conflicts between the trap and 
non-trap fishing sectors. There is no available information regarding a 
particular biological need to stop trap fishing on Stellwagen Bank in 
particular and such an action is outside the purpose and need of the 
present action.
    Comment 5: Two commenters differed in opinions about maximum gauge 
size: one fully supported it, while the other was opposed, but was 
generally supportive of gauge increases.
    Response: A maximum gauge size for Area 3 has long been discussed 
between industry and management as a potential tool for broodstock 
protection. On May 8, 2007, the Board adopted Addendum XI to Amendment 
3 of the ISFMP which included, in part, a maximum size for lobster 
harvested from Area 3. The addendum requires a maximum carapace length 
limit of 7 inches (17.78 cm) in the first year of implementation, with 
incremental reductions in the maximum size by \1/8\ inch (0.32 cm) 
annually for the following two years resulting in an eventual maximum 
size of 6inches (17.15 cm). Addendum XI has recommended that the 
Federal government take action on this measure. Consequently, NMFS will 
analyze the impacts of the maximum size in Area 3 as adopted into the 
ISFMP and entertain public comments in a future rulemaking action.
    With respect to gauge increases, NMFS proposes to implement the 
suite of gauge increases as adopted into the ISFMP.
    Comment 6: One respondent recommended a five year moratorium on 
lobster fishing or an increase of 12 inches (30.48 cm) to the current 
minimum size. Additionally, the commenter recommended a 200 percent 
increase in the vent size and a 50 percent trap reduction.
    Response: The commenter's measures are likely more extreme than 
necessary to address the sustainability of the resource, fail to 
address the social and economic impacts and would greatly increase 
regulatory incongruence between jurisdictions. The proposed measures do 
not meet the purpose and need of this action and consequently were not 
analyzed in this rulemaking.

Proposed Changes to the Current Regulations

    NMFS proposes the following changes to the Federal American lobster 
regulations for LCMA 3.

Increase Minimum Carapace Length in Area 3

    To protect lobster broodstock NMFS proposes to implement two 
additional gauge increases that would result in a 3\1/2\ inch (8.89 cm) 
minimum gauge size requirement for LCMA 3 by July 1, 2008. Most states 
have already begun the four-year gauge increase schedule, beginning in 
2005, as mandated by the ISFMP. To remain consistent with the ISFMP, 
NMFS proposes to implement a gauge increase subsequent to publication 
of a final rule later in 2007. These measures are consistent with the 
ISFMP.

Increase Lobster Trap Escape Vent Size for Area 3 in 2010

    NMFS proposes escape vent size increases in LCMA 3 to 2\1/16\ 
inches x 5\3/4\ inches rectangular (5.24 cm x 14.61 cm) or two circular 
vents at 2\11/16\ inches diameter (6.83 cm) by July 1, 2010. Although 
the ISFMP requires the escape vent increase implementation by July 1, 
2008, the delay until 2010 is currently included in the Commission's 
Addendum XI.

Area 3 Lobster Trap Reductions Through 2010

    NMFS also is considering a suite of trap reductions in LCMA 3. 
First, Addendum IV to Amendment 3 of the ISFMP calls for a 10 percent 
trap reduction implemented over two consecutive years with a scheduled 
5 percent reduction for 2007 and a 5 percent reduction in 2008. To 
address the need for further fishing mortality and fishing effort 
reductions in the offshore fishery as identified in the updated stock 
assessment released in 2005, the Board developed Addendum XI, that 
included consideration of an additional 5 percent reduction in traps in 
LCMA 3, to be implemented as a 2.5 percent reduction each year for two 
consecutive years following the initial 10 percent trap reduction 
specified in Addendum IV. The Commission voted to approve draft 
Addendum XI for public comment on January 31, 2007, and subsequently 
Addendum XI was approved by the Commission on May 9, 2007, including 
the requirement for an additional 5 percent reduction in traps in LCMA 
3. Table 1 illustrates the LCMA 3 gauge increases, escape vent size 
increases and the 10 percent trap reductions currently recommended in 
the ISFMP for Federal implementation. Also included in the table are 
the two additional 2.5 percent trap reductions for LCMA 3 just approved 
by the Board in May 2007. These pending trap reductions are included 
within the scope of this rulemaking because they have been adopted into 
the ISFMP and recommended for Federal implementation.
    Table 1. American Lobster ISFMP Gauge, Escape Vent and Trap 
Reduction Schedule for LCMA 3 and Corresponding Federal Action 
(Includes only the measures currently recommended in the ISFMP for 
Federal implementation and relevant trap reductions).

[[Page 33960]]



                                                                                  [Measurements are in inches]
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                                                      Addenda II-VIII, XI                       Current Federal Lobster Regulations        Proposed Changes to Federal Lobster  Regulations
              LCMA               ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         gauge               vent*         trap  reductions          gauge               vent*               gauge               vent*        trap  reductions**
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LCMA3                             3 3/8 July 2004     2 1/16 X 5 3/4      5% in 2007          3 3/8               2 X 5 3/4           3 15/32 in 2007     2 1/16 X 5 3/4      5% in 2007
                                  3 13/32 July 2005    rectangular        5% in 2008                               rectangular        3 \1/2\ by 2008      rectangular        5% in 2008
                                  3 7/16 July 2006    or                  2.5% in 2009                            or                                      or                  2.5% in 2009
                                  3 15/32 July 2007   2 11/16 circular    2.5% in 2010                            2 5/8 circular                          2 11/16 circular    2.5% in 2010
                                  3 \1/2\ July 2008    by 2010                                                                                             by 2010
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* All vent sizes include a rectangular and corresponding circular vent size. In all cases, each trap is required to have one rectangular vent or two circular vents at the sizes indicated.
** The two 5% trap reductions scheduled for 2007 and 2008 were established in Addendum IV; the two 2.5% reductions and delay of the escape vent increase until 2010 were incorporated into the
  ISFMP in Addendum XI.

Management Actions Considered but Rejected at this Time

    Referring specifically to the proposals discussed in this section, 
the Commission Lobster Board (Board) took several actions in 2001 and 
2002 that were contingent in part on the future status of the lobster 
stocks, as determined by updated stock assessment information. In 
essence, several Area-specific management measures were inserted in 
Addenda II--IV that would be implemented if the measures were deemed 
``necessary'' to meet the ISFMP goals and objectives. These proposed 
measures are commonly referred to as the ``if necessary'' measures. The 
Board approved several ``if necessary'' provisions, including: 
provisions for additional lobster minimum gauge increases for Area 3 
and the Outer Cape Area, and provisions to increase the lobster trap 
escape vent size for traps fished in Area 1 and Area 3. In addition, if 
ISFMP trap reduction targets for the Outer Cape Management Area were 
not met from the implementation of a limited entry transferable trap 
program outlined in Addendum I, the ISFMP included ``if necessary'' 
provisions to continue additional trap reductions totaling 10 percent 
over two years. When an updated lobster stock assessment was completed 
in January 2006 (ASMFC 2006), the Board revisited the ``if necessary'' 
proposals specified in Addenda II--IV. Based on the updated assessment, 
on May 8, 2006, the Lobster Board repealed the ``if necessary'' 
provisions described above for LCMAs where the lobster stocks are not 
considered overfished. For copies of the 2006 Assessment, or Addenda 
II--IV, visit the Commission website at: http://www.asmfc.org/.
    In addition to the ``if necessary'' proposals outlined in the 
paragraph above, the Board took several actions in 2002-2003 to address 
the reported sharp decline in lobster landings in Area 2, (the 
nearshore Area adjacent to Massachusetts, Rhode Island, Connecticut, 
and New York). Based on several meetings between the Area 2 industry, 
the Commission, and impacted state and Federal agencies, in February 
2003, the Board took Emergency Action to implement an increase in the 
minimum gauge size in Area 2, from 3\3/8\ inches to 3\1/2\ inches (8.57 
cm to 8.89 cm), pending further evaluation of the scope and extent of 
the resource decline, and implementation of appropriate management 
action to address the Area 2 situation. At that time, the Area 2 LCMT 
began development of a comprehensive limited access program for Area 2 
that ultimately was incorporated in Addendum VII, approved in November, 
2005 by the Commission. A component of Addendum VII included the 
revocation of the Emergency Action that mandated the increase in the 
minimum gauge size in Area 2, and established a minimum gauge size in 
Area 2 of 3\3/8\ inches (8.57 cm). NMFS is analyzing the Addendum VII 
recommendations in a separate rulemaking.

Implement an Area 1 Lobster Trap Escape Vent Increase by 2007

    The Commission approved an ``if necessary'' provision to increase 
the lobster trap escape vent size for traps fished in Area 1 as 
specified in Addendum III, approved by the Commission in February 2002. 
If this provision had not been rescinded by the Commission on May 8, 
2006, the ISFMP would require a lobster trap escape vent size increase 
in Area 1 from one rectangular escape vent measuring per trap at least 
1\15/16\ inches by 5\3/4\ inches (4.92 cm x 14.61 cm), or two circular 
escape vents measuring 2\7/16\ inches (6.19 cm), to a requirement for 
each trap to contain at least one rectangular escape vent measuring at 
least 2 inches by 5\3/4\ inches (5.08 cm x 14.61 cm), or two circular 
escape vents measuring 2\1/2\ inches (6.35 cm), later revised in 
Addendum IV to 2\5/8\ inches (6.67 cm) circular. The Area 1 trap escape 
vent increase was rescinded by the Commission after a determination, 
based on the updated stock assessment completed in 2006, that the 
measure was unnecessary to meet the ISFMP goals and objectives for the 
Gulf of Maine lobster stock, as previously specified in Addendum III. 
Therefore, based on that determination, the Area 1 trap escape vent 
increase is no longer considered as a recommendation for complementary 
action by the Federal government. To implement such a measure at the 
Federal level would create a regulatory incongruence between the 
Federal regulations and the Commission Lobster Plan. Accordingly, the 
measure is considered but NMFS is proposing that it be rejected for 
this action.

Increase the Minimum Gauge Size in Outer Cape Management Area by 2008

    The Commission approved an ``if necessary'' provision to increase 
the Outer Cape Management Area minimum gauge size to 3\1/2\ inches 
(8.89 cm) by 2008 as specified in Addendum III, approved by the 
Commission in February 2002. If this provision had not been rescinded 
by the Commission on May 8, 2006, the minimum gauge size for all 
lobsters taken in the Outer Cape Management Area would increase from 
the current minimum gauge size of 3\3/8\

[[Page 33961]]

inches (8.57 cm) to 3\1/2\ inches (8.89 cm). The Outer Cape Management 
Area minimum gauge size provision was rescinded by the Commission after 
a determination, based on the updated stock assessment completed in 
2006, that the measure was unnecessary to meet the ISFMP goals and 
objectives for the Gulf of Maine lobster stock, as previously specified 
in Addendum III. Therefore, based on that determination, the Outer Cape 
Management Area minimum gauge size provision is no longer considered as 
a recommendation for complementary action by the Federal government. To 
implement such a measure at the Federal level would create a regulatory 
incongruence between the Federal regulations and the Commission Lobster 
Plan. Accordingly, the measure is considered but NMFS is proposing that 
it be rejected for this action.

Active Trap Reductions for the Outer Cape Management Area

    The Commission approved an ``if necessary'' provision to require 
lobster vessels with trap allocations in the Outer Cape Management Area 
be reduced by 5 percent per year for a two year period if a limited 
entry transferable trap program, approved for the Outer Cape Management 
Area in Addendum III, did not achieve a 20 percent reduction in the 
total number of traps allowed to be fished in the Outer Cape Management 
Area. The Outer Cape Management Area If Necessary trap reduction 
schedule provision was rescinded by the Commission after a 
determination, based on information provided by the impacted state 
management agency, that the limited entry transferable trap program had 
meet the ISFMP goals and objectives, as previously specified in 
Addendum III. Therefore, based on that determination, the Outer Cape 
Management Area ``if necessary'' trap reduction provision is no longer 
considered as a recommendation for complementary action by the Federal 
government. To implement such a measure at the Federal level would 
create a regulatory incongruence between the Federal regulations and 
the Commission Lobster Plan. Accordingly, the measure is considered but 
NMFS is proposing that it be rejected for this action.

Increase in the Area 2 Minimum Gauge Size up to 3\1/2\ Inches (8.89 cm) 
by 2008

    The Commission approved in February 2003, via Emergency Action, a 
provision to increase the minimum gauge size in Area 2, from 3\3/8\ 
inches to 3\1/2\ inches (8.57 cm to 8.89 cm). During this time period, 
the Area 2 LCMT and impacted participants in the Area 2 lobster 
fishery, held multiple public meetings that culminated in approval of a 
limited entry transferable trap program for Area 2 as specified in 
Addendum VII, approved November 2005. Based on the implementation of an 
integrated plan to address the status of the stock in Area 2, in 
Addendum VII, the Commission approved the revocation of the Emergency 
Action that mandated the minimum gauge size increase in Area 2, and, by 
the same action, established a minimum gauge size in Area 2 of 3\3/8\ 
inches (8.57 cm). Therefore, based on that determination, the provision 
to increase the minimum gauge size in Area 2 is no longer considered as 
a recommendation for complementary action by the Federal government. To 
implement such a measure at the Federal level would create a regulatory 
incongruence between the Federal regulations and the Commission Lobster 
Plan. Accordingly, the measure is considered but NMFS is proposing that 
it be rejected for this action.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism 
implications as defined in E.O. 13132.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, the reason 
for consideration, and its legal basis are contained in the SUMMARY 
section of the preamble in this proposed rule.
    As previously described, the proposed action would implement two 
additional gauge increases that would result in a 3\1/2\ inch (8.89 cm) 
minimum gauge size requirement for LCMA 3 by July 1, 2008. Most states 
have already begun the four-year gauge increase schedule in 2005 as 
mandated by the ISFMP which brings the ISFMP's minimum size in Area 3 
to 3\15/32\ inches (8.81 cm) beginning July 1, 2007, with the final \1/
32\ inch (0.08 cm) increase scheduled for July 1, 2008. Therefore, NMFS 
proposes to implement a gauge increase subsequent to publication of a 
final rule later in 2007 that will raise the minimum carapace length in 
Area 3 to 3\15/32\ inches (8.81 cm), with the regulatory text 
specifying an additional increase to 3\1/2\ inches (8.89 cm) effective 
July 1, 2008. In addition, NMFS proposes to adopt the escape vent size 
increase for lobster traps in Area 3 to 2\1/16\ inches x 5\3/4\ inches 
rectangular (5.24 cm x 14.61 cm) or two circular vents at 2\11/16\ 
inches diameter (6.83 cm). However, consistent with an industry 
proposal recently approved by the Commission's Lobster Management Board 
in Addendum XI, NMFS proposes to delay the implementation of the Area 3 
escape vent size increase until July 1, 2010. Finally, NMFS proposes a 
suite of trap reductions in LCMA 3. First, Addendum IV to Amendment 3 
of the ISFMP calls for a 10 percent trap reduction implemented over two 
consecutive years with a scheduled 5 percent reduction for 2007 and a 5 
percent reduction in 2008. To address the need for further fishing 
mortality and fishing effort reductions in the offshore fishery as 
identified in the updated stock assessment released in 2005, the Board 
developed Addendum XI, that included consideration of an additional 5 
percent reduction in traps in LCMA 3, to be implemented as a 2.5 
percent reduction each year for two consecutive years following the 
initial 10 percent trap reduction specified in Addendum IV. The 
Commission voted to approve draft Addendum XI for public comment on 
January 31, 2007, and subsequently Addendum XI was approved by the 
Commission on May 8, 2007, including the requirement for the two 
additional 2.5 percent reductions in traps in LCMA 3. Table 1 
illustrates the LCMA 3 gauge increases, escape vent size increases, the 
10 percent trap reductions recommended in Addendum IV to the ISFMP and 
the two additional 2.5 percent trap reductions for LCMA 3 recommended 
in Addendum XI, approved by the Board in May 2007.
    The proposed action was compared to the no action alternative and 
one other alternative as noted in Table 1 of this proposed rule. In 
summary, the no action alternative would retain the current LCMA 3 
vessel-specific trap allocations, and retain the current Federal 
minimum gauge and escape vent sizes in LCMA 3. The non-preferred 
alternative would implement a 10% trap reduction over two years as 
specified in Addendum IV, increase the minimum gauge size from 3\3/8\ 
inches (8.57 cm) to 3\1/2\ inches (8.89 cm) over four years, and 
increase the escape vent size in 2008. The preferred alternative 
selected for this proposed action would implement a 15% trap reduction 
over four years as specified in Addendum IV and Addendum XI, increase 
the minimum gauge size to 3\1/2\ inches (8.89 cm) over two years to 
coincide with the gauge size requirements

[[Page 33962]]

specified for the last two years (2007 and 2008) of the Commission's 
four year minimum gauge schedule, and implement the escape vent size 
increase in 2010 as specified in Addendum XI.
    After fully evaluating all three alternatives, the proposed 
alternative is preferred for several reasons. This preferred option 
would best address the concerns of the stock assessment and call for 
action to reduce effort and provide for broodstock protection because, 
simply, it would bring all Federal lobster permit holders under the 
same set of regulations. As explained in the draft environmental 
assessment completed for this action, the impacts associated with no 
action, or limited action will have a negligible effect on the biology 
of the lobster resource since nearly the entire fishery is or will be 
bound under state regulations to the suite of Area 3 management 
measures adopted into the ISFMP. However, the preferred alternative 
will facilitate the effective management of the resource by providing a 
standard gauge size for all Federal lobster vessels that fish in or 
elect to fish in Area 3, including those not covered under state 
lobster regulations. The states and the Commission's Lobster Board, 
with input from public sector scientists and the Area 3 lobster 
industry, have indicated the need for these additional gauge increases 
to further conserve the offshore lobster fishery and ensure its 
sustainability. The Commission has recommended that the Federal 
government adopt these gauge increases into the Federal regulations to 
assist in this goal. By adopting these gauge increases in Area 3, NMFS 
will support the Commission's ISFMP in the conservation of the resource 
with compatible measures for fishery management.
    The delay in the implementation of the escape vent increase will 
offer a more palatable option for a sector of the industry that has 
been relatively proactive in developing and promoting its own 
regulatory program: the epitome of area management. In the meantime, 
the gauge increases will afford protection to legal lobster that are 
not able to escape from the current vents. Finally, the preferred 
alternative would implement the Commission's adopted trap reductions 
and seizes the opportunity, on the prompting of industry, to address 
scientific concerns associated with fishing effort, to further ensure 
that latent and real-time effort are controlled to the maximum degree 
available under the current management scenario.

Description of and Estimate of the Number of Small Entities to Which 
the Proposed Rule Would Apply

    The proposed action would have a potential effect on the 139 
federally permitted vessels with an Area 3 trap allocation. The 
proposed action would also have a potential effect on federally 
permitted vessels that elected to fish lobster using non-trap gear of 
which there were 1,105 in fishing year 2006. Gross sales for any one of 
these vessels would not exceed the small business size standard for 
commercial fishing of $4 million. Therefore, all 1,244 fishing 
businesses are considered small entities for purposes of the Regulatory 
Flexibility Act (RFA).
    Since the proposed action would only change regulations for trap 
and non-trap vessels fishing in Area 3, only vessels that actually 
fished or intend to fish in Area 3 would be effected. Available data 
indicate that 87 of the 139 vessels with an Area 3 trap allocation and 
265 non-trap vessels actually landed lobster while fishing Area 3 for a 
total of 352 small entities (about 30 percent of the total number of 
potentially effected permit holders) that have demonstrated recent 
participation in the Area 3 lobster fishery.
    The ASMFC has lead responsibility for managing lobster and 
developing a regulatory framework for implementation by the individual 
member states and making recommendations for complementary action by 
the Federal government. Since nearly all permit holders must be 
licensed in a state and are bound by the most restrictive management 
measures no matter where they fish, Federal action will have added 
economic impact only in cases where the federal regulation would be 
more restrictive than any given state regulation. The proposed Federal 
action would either align Federal regulations with that of already 
existing state regulations or anticipates highly probable state actions 
to be taken in the future.

Economic Impacts of the Proposed Action

Minimum Size Increases

    The ISFMP calls for a scheduled increase of \1/32\ inch (0.08 cm) 
from 3\3/8\ inches (8.57 cm) in Area 3 in 2004 to 3\1/2\ inches (8.89 
cm) by July 2008. These scheduled gauge increases have already been 
implemented by all states except for New Jersey, Connecticut and the de 
minimis states. Currently, the minimum Federal gauge size in Area 3 is 
3\3/8\ inches (8.57 cm). However, since the majority of lobster trap 
and non-trap vessels are licensed in states that have already 
implemented the ASMFC recommended size increases for Area 3, only 21 of 
the participating federally permitted trap and non-trap vessels are 
currently able to retain lobster at the lower federal minimum gauge. 
The proposed action would raise the gauge to 3\15/32\-inches (8.81 cm) 
in July 2007 and to 3\1/2\ inches (8.89 cm) in July 2008. This schedule 
would replicate what has already been implemented by most states and 
would effect the 21 participating Area 3 vessels that are currently 
licensed in states that have not implemented the recommended gauge 
size.
    The economic impact on these vessels is uncertain but is expected 
to be low for the 6 effected trap vessels and even lower for the 15 
effected non-trap vessels. That is, lobsters landed from Area 3 tend to 
be larger than lobsters landed elsewhere. For example, sea sampling 
data indicate that the minimum carapace length for 98 percent of non-
trap lobster landings on observed trips was at least 3\1/2\ inches 
(8.89 cm) in both 2004 and 2005. Assuming the size distribution of the 
trap-gear catch is similar to that of non-trap gear the majority of 
lobster income by either trap or non-trap vessels would be unaffected 
by the increase in the Area 3 Federal gauge. However, non-trap vessel 
impacts are likely to be proportionally lower than that of the trap 
vessels because lobster comprises only a small percentage of total 
fishing income for non-trap vessels.

Escape Vent Size Increase

    When the environmental assessment was conducted to evaluate the 
impacts of this proposed action, the Commission had not yet adopted 
Addendum XI and therefore, the preferred alternatives associated with 
the delay of the escape vent size increase and two additional 2.5 
percent trap reductions were not yet incorporated into the ISFMP. 
However, the Commission just recently adopted these measures into the 
ISFMP in May 2007. Therefore, the proposed action would be consistent 
with the current ISFMP and would delay implementation of increase in 
vent size to 2\1/16\ x 5\3/4\ inches (5.24 cm x 14.61 cm) rectangular 
or 2\11/16\ inches (6.83 cm) circular until 2010 instead of 2008, as 
originally adopted by the Commission.
    Delaying the escape vent size would have no effect on non-trap 
vessels but would provide some economic relief to any vessel that 
fished traps in Area 3. The larger escape vent size would allow any 
sub-legal and some legal sized lobsters to escape. Delaying the 
increase in escape vent size would retain all legal

[[Page 33963]]

sized lobsters which would provide some compensation for the change in 
the minimum gauge size since more legal size lobsters would be 
retained. Note that all vessels would still be required to bear the 
cost of replacing non-conforming escape vents but the two-year delay in 
implementation provide sufficient additional income to offset the cost 
of replacing escape vents. Adoption of this measure would also maintain 
consistency between the state escape vent size requirements for Area 3 
as dictated by the ISFMP, and Federal regulations.

Trap Reductions

    The preferred alternative would implement the Commission 
recommended reductions in individual trap allocations of 5 percent in 
July 2007 and in July 2008. In addition, the preferred alternative 
would also implement two additional reductions in individual 
allocations or 2.5 percent in 2009 and another 2.5 percent in 2010 
recently approved by the Commission in May 2007. Since the majority of 
states have already implemented the scheduled Area 3 trap reductions 
for 2007 and 2008 Federal action would not impose any added economic 
costs on the majority of participating Area 3 trap vessels. Federal 
action would effect an estimated 13 trap vessels from New Jersey and 
the de minimis states that have not yet implemented the Area 3 trap 
reductions for 2007 and 2008.
    Regardless of whether states or the Federal government implement 
trap reductions the economic impact on small entities is difficult to 
quantify. Given the number of potential adaptations to fishing 
strategies available to lobster trap businesses, the realized impact on 
landings and revenue is uncertain but is likely to be proportionally 
less than the reduction in traps. There may be differences in impact, 
however, among Area 3 participants that fish in other LCMAs if the 
total trap allocation falls below the number of traps they may be 
eligible to fish in those other areas. Specifically, due to the Federal 
definition of the most restrictive provision, any vessel whose Area 3 
trap allocation falls below the number of traps that may be fished 
elsewhere would still be limited to the smaller of the number of 
eligible traps in any area. For example, a vessel that qualifies for 
800 Area 3 traps and that designates both Area 1 and Area 3 would be 
able to fish a total of 800 traps in any combination in Area 1 and Area 
3. In 2007, however, after the same vessel's Area 3 allocation would 
decline to 760 Area 3 traps, which would also mean that the number of 
traps that could be fished in Area 1 would also be limited to 760 traps 
even though other Area 1 participants would be able to fish 800 traps. 
Historically, however, Area 3 had a trap cap of 1,800, which was 1,000 
traps greater than the 800 trap caps set in the other LCMAs. 
Accordingly, for the majority of participants, would likely to continue 
to be so even with reductions. NMFS is presently analyzing its 
application of the most restrictive trap standard as part of a separate 
rulemaking.

Economic Impacts of the Non-Preferred Alternatives to the Proposed 
(Preferred) Action

Non-Preferred Alternatives to the Proposed Minimum Gauge Size Increases

    No Action--Taking no action would not change the economic status of 
the overwhelming majority of participating Area 3 trap and non-trap 
vessels. No action would provide some economic relief to the 21 vessels 
identified above. This alternative was not selected because it would 
perpetuate an inconsistency between state and Federal regulations in 
Area 3 as well as creating inequities between the majority of Area 3 
participants and the small number of vessels that might benefit from 
continuing present regulations. Furthermore, continued inconsistency 
would undermine the effectiveness of the ISFMP in promoting cooperative 
State-Federal management of the lobster fishery.
    Implement Scheduled Size Increases Beginning in 2007--This 
alternative would maintain the original schedule of four consecutive 
gauge size increases beginning with a \1/32\ inch (0.08 cm) increase 
from 3\3/8\ inches (8.57 cm) in July 2007 and ending at 3\1/2\ inches 
(8.89 cm) in 2010. As noted previously this alternative would provide 
some negligible relief to the 21 vessels that are not currently bound 
by state regulation. This alternative schedule of gauge increases would 
eventually resolve any inconsistencies between State-Federal 
regulations, but would not do so until two years later than the 
preferred alternative and what has already been implemented by most 
states effecting the majority of participating small entities. This 
alternative was not selected since the negligible economic benefit to a 
small minority of small entities would not outweigh the potential to 
undermine the intended objectives of the ISFMP to achieve consistency 
between State-Federal lobster fishery management.

Non-Preferred Alternatives to the Escape Vent Size Increase in 2010

    No Action--Taking no action would leave the escape vent in Area 3 
at its current size of 2 x 5\3/4\ inches (5.08 cm x 14.61 cm) 
rectangular or 2\5/8\ inches (6.67 cm) circular. However, since the 
ISFMP required, prior to the recent approval of Addendum XI in May 
2007, that all states implement the larger escape vents size by 2008, 
the majority of participating Area 3 trap vessels would be required to 
replace all escape vents with or without Federal action since the 
majority of states have already promulgated regulations in accordance 
with the ISFMP. In the absence of Federal action, a total of 16 vessels 
would be exempted from the 2008 vent size increases as they are 
currently licensed by states (Connecticut and New Jersey) that have not 
yet implemented the recommended change in escape vent size. This action 
would provide less economic relief across the entire Area 3 trap 
fishery as compared to the preferred alternative and would perpetuate 
inconsistency between State-Federal lobster fishery management. For 
these reasons, the no action alternative is not preferred.
    Implement the Escape Vent Size Increase in 2008--The ISFMP had 
initially adopted 2008 as the implementation year of the escape vent 
size increase associated with this action. However, with the 
Commission's adoption of Addendum XI in May 2007, this measure is now 
part of the ISFMP. Therefore, Federal implementation of this measure 
would allow for consistency between the ISFMP and Federal regulations. 
Compared to the preferred alternative, this alternative would require 
all vessels to replace all escape vents two years earlier without the 
potential mitigating effects of the higher retention rates associated 
with a delay in the escape vent size.

Non-Preferred Alternatives to the Area 3 Trap Reductions

    No Action--Taking no action would leave the present federally 
allowable Area 3 trap allocations unchanged. However, the Federal 
regulations at 50 CFR 697.3(c) require that Federal lobster vessels 
that designate more than one lobster management area, be limited to the 
lowest trap allocation of all the lobster management areas associated 
with the vessel's Federal permit and the lower of any differing state 
or federal allocations. Since the majority of states have already 
implemented the ISFMP required 5 percent trap reductions for 2007 and 
2008 most participating Area 3 lobster trap vessels would be held to

[[Page 33964]]

the state mandated trap allocations even in the absence of Federal 
action. A small number of vessels (13) from states that have not yet 
implemented the Commission adopted trap reductions would not be 
effected under the no action alternative. Since the Commission adopted 
the LCMT 3 recommended trap reductions for implementation in 2009 and 
2010, there would be no appreciable difference in economic impact 
between the preferred and the no action alternative, with the exception 
of the 13 vessels that would remain unaffected.
    Implement Trap Reductions in Only 2007 and 2008--This alternative 
would limit the Area 3 trap reductions to 5 percent in 2007 and another 
5 percent in 2008 as initially recommended by the Commission. However, 
the Commission has since adopted the additional 2.5 percent trap 
reduction in 2009 and again in 2010, consistent with the NMFS preferred 
alternative. The economic impacts of this alternative on small fishing 
entities would be equivalent to that of the preferred alternative in 
2007 and 2008 and would be similar to that of taking no action. If the 
Commission had not adopted the Area 3 management team proposed trap 
reduction in 2009 and 2010, then this alternative would allow 
participating vessels to fish more traps as compared to the preferred 
alternative. Since the Commission did implement, in May 2007, the 
additional trap reductions for 2009 and 2010, a Federal delay would 
require a separate subsequent action to implement complementary Federal 
regulations; a process that has frequently resulted in delayed 
implementation of Commission proposed measures. In this case, there 
would be added administrative costs associated with taking Federal 
action but economic impact on small entities fishing traps in Area 3 
would be similar to that of the preferred alternative.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: June 14, 2007.
Samuel D. Rauch III,
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 proposed to be 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.  697.19, paragraph (b) is revised to read as follows:


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

* * * * *
    (b) Trap limits for vessels fishing or authorized to fish in the 
EEZ Offshore Management Area. (1) Beginning September 1, 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 the number of lobster traps 
allocated by the Regional Administrator pursuant to the qualification 
process set forth at Sec.  697.4 (a)(7)(vi) and the maximum trap limits 
identified in Table 1, Column 2 to this part, except as noted in 
paragraphs (c) and (e) of this section.
    (2) Beginning November 1, 2007, 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 the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4 (a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 3, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (3) Beginning July 1, 2008, 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 the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4 (a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 4, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (4) Beginning July 1, 2009, 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 the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4 (a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 5, to this part, except as noted in paragraphs (c) and 
(e) of this section.
    (5) Beginning July 1, 2010, and beyond, 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 the number of lobster traps allocated by the 
Regional Administrator pursuant to the qualification process set forth 
at Sec.  697.4 (a)(7)(vi) and the maximum trap limits identified in 
Table 1, Column 6, to this part, except as noted in paragraphs (c) and 
(e) of this section.
* * * * *
    3. In Sec.  697.20, paragraphs (a)(3) through (a)(5) are revised 
and paragraph (a)(6) through (a)(9) are added to read as follows:


Sec.  697.20  Size, harvesting and landing requirements.

    (a) * * *
    (3) The minimum carapace length for all American lobsters harvested 
in or from the EEZ Nearshore Management Area 2, 4, 5 and the Outer Cape 
Lobster Management Area is 3\3/8\ inches (8.57 cm).
    (4) The minimum carapace length for all American lobsters landed, 
harvested or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in EEZ Nearshore 
Management Area 2, 4, 5 and the Outer Cape Lobster Management Area is 
3\3/8\ inches (8.57 cm).
    (5) The minimum carapace length for all American lobsters harvested 
in or from the Offshore Management Area 3 is 3\15/32\ inches (8.81 cm).
    (6) The minimum carapace length for all American lobsters landed, 
harvested or possessed by vessels issued a Federal limited access 
American lobster permit fishing in or electing to fish in EEZ Offshore 
Management Area 3 is 3\15/32\ inches (8.81 cm).
    (7) Effective July 1, 2008, the minimum carapace length for all 
American lobsters harvested in or from the Offshore Management Area 3 
is 3\1/2\ inches (8.89 cm).
    (8) Effective July 1, 2008, the minimum carapace length for all 
American lobsters landed, harvested or

[[Page 33965]]

possessed by vessels issued a Federal limited access American lobster 
permit fishing in or electing to fish in EEZ Offshore Management Area 3 
is 3\1/2\ inches (8.89 cm).
    (9) No person may ship, transport, offer for sale, sell, or 
purchase, in interstate or foreign commerce, any whole live American 
lobster this is smaller than the minimum size specified in paragraph 
(a) of this section.
* * * * *
    4. In Sec.  697.21, paragraph (c) is revised to read as follows:


Sec.  697.21  Gear identification and marking, escape vent, maximum 
trap size, and ghost panel requirements.

* * * * *
    (c) Escape vents. (1) All American lobster traps deployed or 
possessed in the EEZ Nearshore Management Area 1 or the EEZ Nearshore 
Management Area 6 or, deployed or possessed by a person on or from a 
vessel issued a Federal limited access American lobster permit fishing 
in or electing to fish in the EEZ Nearshore Management Area 1 or the 
EEZ Nearshore Management Area 6, must include either of the following 
escape vents in the parlor section of the trap, located in such a 
manner that it will not be blocked or obstructed by any portion of the 
trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
1\15/16\ inches (4.92 cm) by 5\3/4\ inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2\7/16\ inches (6.19 cm) in diameter.
    (2) All American lobster traps deployed or possessed in the EEZ 
Nearshore Management Area 2, 4, 5, and the Outer Cape Lobster 
Management Area, or, deployed or possessed by a person on or from a 
vessel issued a Federal limited access American lobster permit fishing 
in or electing to fish in the EEZ Nearshore Management Area 2, 4, 5, 
and the Outer Cape Lobster Management Area, must include either of the 
following escape vents in the parlor section of the trap, located in 
such a manner that it will not be blocked or obstructed by any portion 
of the trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 inches (5.08 cm) x 5\3/4\ inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2\5/8\ inches (6.67 cm) in diameter.
    (3) Effective through June 30, 2010, all American lobster traps 
deployed or possessed in the EEZ Offshore Management Area 3, or 
deployed or possessed by a person on or from a vessel issued a Federal 
limited access American lobster permit fishing in or electing to fish 
the EEZ Offshore Management Area 3, must include either of the 
following escape vents in the parlor section of the trap, located in 
such a manner that it will not be blocked or obstructed by any portion 
of the trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2 inches (5.08 cm) 5\3/4\ inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2\5/8\ inches (6.67 cm) in diameter.
    (4) Effective July 1, 2010, all American lobster traps deployed or 
possessed in the EEZ Offshore Management Area 3, or deployed or 
possessed by a person on or from a vessel issued a Federal limited 
access American lobster permit fishing in or electing to fish in the 
EEZ Offshore Management Area 3, must include either of the following 
escape vents in the parlor section of the trap, located in such a 
manner that it will not be blocked or obstructed by any portion of the 
trap, associated gear, or the sea floor in normal use:
    (i) A rectangular portal with an unobstructed opening not less than 
2\1/16\ inches (5.24 cm) x 5\3/4\ inches (14.61 cm);
    (ii) Two circular portals with unobstructed openings not less than 
2\11/16\ inches (6.82 cm) in diameter.
    (5) The Regional Administrator may, at the request of, or after 
consultation with, the Commission, approve and specify, through a 
technical amendment of this final rule, any other type of acceptable 
escape vent that the Regional Administrator finds to be consistent with 
paragraph (c) of this section.
* * * * *
    5. In part 697, Table 1 to part 697 is revised to read as follows:

                               Table 1 to Part 697--Area 3 Trap Reduction Schedule
----------------------------------------------------------------------------------------------------------------
  HISTORIC Trap      Year 2006 Trap    Year 1--5% Trap    Year 2--5% Trap   Year 3--2.5% Trap  Year 4--2.5% Trap
    Allocation         Allocation         Reduction          Reduction          Reduction          Reduction
-------------------------------------     Effective      Effective July 1,  Effective July 1,  Effective July 1,
                                       November 1, 2007         2008               2009               2010
     Column 1           Column 2     ---------------------------------------------------------------------------
                                           Column 3           Column 4           Column 5           Column 6
----------------------------------------------------------------------------------------------------------------
200                           200                190                181                176                172
240                           240                228                217                211                206
250                           250                238                226                220                214
264                           264                251                238                232                226
300                           300                285                271                264                257
320                           320                304                289                282                275
325                           325                309                293                286                279
360                           360                342                325                317                309
370                           370                352                334                326                317
400                           400                380                361                352                343
450                           450                428                406                396                386
480                           480                456                433                422                412
500                           500                475                451                440                429
590                           590                561                532                519                506
600                           600                570                542                528                515
700                           700                665                632                616                601
720                           720                684                650                634                618
768                           768                730                693                676                659
800                           800                760                722                704                686
883                           883                839                797                777                758
900                           900                855                812                792                772

[[Page 33966]]

 
930                           930                884                839                818                798
1000                         1000                950                903                880                858
1004                         1004                954                906                883                861
1020                         1020                969                921                898                875
1100                         1100               1045                993                968                944
1150                         1150               1093               1038               1012                987
1170                         1170               1112               1056               1030               1004
1200-1299                    1200               1140               1083               1056               1030
1300-1399                    1200               1140               1083               1056               1030
1400-1499                    1200               1140               1083               1056               1030
1500-1599                    1276               1212               1152               1123               1095
1600-1699                    1352               1284               1220               1190               1160
1700-1799                    1417               1346               1279               1247               1216
1800-1899                    1482               1408               1338               1304               1271
1900-1999                    1549               1472               1398               1363               1329
2000-2099                    1616               1535               1458               1422               1386
2100-2199                    1674               1590               1511               1473               1436
2200-2299                    1732               1645               1563               1524               1486
2300-2399                    1789               1700               1615               1574               1535
2400-2499                    1845               1753               1665               1623               1583
2500-2599                    1897               1802               1712               1669               1628
2600-2699                    1949               1852               1759               1715               1672
2700-2799                    2000               1900               1805               1760               1716
2800-2899                    2050               1948               1850               1804               1759
2900-2999                    2100               1995               1895               1848               1802
3000-3099                    2150               2043               1940               1892               1845
3100-3199                    2209               2099               1994               1944               1895
>3199                        2267               2154               2046               1995               1945
----------------------------------------------------------------------------------------------------------------

[FR Doc. E7-11964 Filed 6-19-07; 8:45 am]
BILLING CODE 3510-22-S