[Federal Register Volume 67, Number 2 (Thursday, January 3, 2002)]
[Proposed Rules]
[Pages 282-296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-142]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
[Docket No. 010918229-1229-01; I.D. 022301A]
RIN 0648-AP15
American Lobster Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes 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 (ASMFC): 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. NMFS
includes in this proposed rule 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: Comments must be received no later than 5 p.m., eastern standard
time, on February 19, 2002.
ADDRESSES: Comments on the proposed rule should be sent to Harry Mears,
Director, State, Federal and Constituent Programs Office, NMFS, One
Blackburn Drive, Gloucester, MA 01930. Comments will not be accepted if
submitted via e-mail or the Internet. Comments regarding the
collection-of-information requirements contained in the proposed rule
should be sent to Harry Mears at the above address, and the Office of
Information and Regulatory
[[Page 283]]
Affairs, Office of Management and Budget, Washington, DC 20503 (ATTN:
NOAA Desk Officer). Copies of a Draft Supplemental Environmental Impact
Statement/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (DSEIS/RIR/IRFA) can be obtained from Harry Mears at the above
address.
FOR FURTHER INFORMATION CONTACT: Robert Ross, NMFS, Northeast Region,
978-281-9234.
SUPPLEMENTARY INFORMATION:
Proposed Action
NMFS is proposing regulations to modify Federal lobster
conservation management measures in the EEZ under the authority of
section 803(b) of the Atlantic Coastal Fisheries Cooperative Management
Act (ACFCMA), 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 nm offshore. These regulations must be (1) compatible with the
effective implementation of an Interstate Fishery Management Plan
(ISFMP) developed by the ASMFC and (2) consistent with the national
standards set forth in section 301 of the Magnuson-Stevens Act.
The lobster management program 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. This proposed rule, issued as part
of a Federal/state cooperative management effort, would implement a
historical participation management regime to control lobster fishing
effort and to preserve the socio-economic character of the associated
lobster fisheries in Areas 3, 4, and 5. It would also establish a
process for the evaluation of recommendations from ASMFC for Federal
lobster regulations implementing ASMFC-approved conservation-
equivalency measures in state coastal waters. In this regard, the
proposed action would respond to an ASMFC recommendation to modify trap
limit restrictions for Federal lobster permit holders fishing in EEZ
Nearshore Management Area 1 who also possess a New Hampshire state
lobster license. Finally, the proposed action would modify boundaries
of lobster management areas in Massachusetts state waters for clarity
and consistency with past fishing practices.
Effort Control in Lobster Conservation Management Areas 3, 4, and 5
In 1994, NMFS implemented a 5-year moratorium on new entrants into
the EEZ lobster fishery via a limited access permit system. In December
1999, that moratorium was extended indefinitely under Federal
regulations found at 50 CFR part 697 (64 FR 68228). Based upon its
approval of selected management measures proposed by the Areas 3, 4,
and 5 Lobster Conservation Management Teams, the ASMFC recommended 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 ASMFC 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 through provision of
certain documents. The ASMFC plan for Area 3 proposes that potential
participants must meet or exceed both a landing and a fishery intensity
threshold in order to qualify, whereas the plans for Areas 4 and 5
would only require fishermen to have held a lobster trap permit during
the qualification period (see details provided in subsequent text).
The DSEIS/RIR/IRFA for this action, announced by a notice of
availability published on November 24, 2000 (65 FR 70567), used data
available to NMFS for the 2000-2001 fishing year from May 2000 through
August 2000, on the number of owners of vessels that elected to harvest
American lobsters in specific LCMAs. Some owners of vessels in
possession of a Federal lobster permit may have elected LCMAs after
August 2000, or may have elected LCMAs with no intention to fish with
lobster traps in one or more of the elected LCMAs. Therefore, the
number of vessels electing to fish in LCMAs 3, 4, or 5 may be higher
than the number identified in the DSEIS/RIR/IRFA for this action, and
the number of vessels that do not qualify for future participation in
the LCMA 3, 4, and/or 5 fisheries may be higher than the number
identified in this proposed rule and in the DSEIS/RIR/IRFA.
Area 3 Fishing Effort Control Program
Area Coordinates
EEZ Offshore Management Area 3 is defined at 50 CFR 697.18(d). 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.
Qualification Period and Establishment of a Federal Control Date
NMFS proposes to 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 (date recommended by the ASMFC) through September 1,
1999. NMFS is not proposing to use the ASMFC's recommended ending date
of November 1, 1997, for this qualification period because of NMFS'
policy to provide advance notice to the public of qualification dates.
On September 1, 1999, NMFS published an advance notice of proposed
rulemaking (ANPR) in the Federal Register (64 FR 47756), to give notice
that NMFS was considering September 1, 1999, the publication date of
the ANPR, as a possible control date, or cut-off date, to be used to
determine eligibility for future access to the Federal lobster trap
fishery. This proposed qualification period is similar to the
recommendations pertaining to historical participation in the EEZ for
Areas 3, 4, and 5 approved by the ASMFC under the ISFMP on August 1,
1999.
NMFS is proposing to use the ASMFC's recommended criterion that
would require fishermen to demonstrate that at least 200 lobster traps
were set, allowed to soak, hauled back, and re-set in Area 3 during 2
consecutive calendar months within the qualification period. The use of
a 2-consecutive calendar month period would maintain consistency with
the ASMFC's ISFMP, and avoid the potential for conflicting state and
Federal regulations when implementing this qualification criterion. In
addition, the NMFS dealer landing and vessel trip report data, which
would likely be used for qualification purposes, is based on calendar
month time periods. Due to the calendar month configuration of the NMFS
databases, the use of an alternative time frame, such as 60-consecutive
days, would be more prone to error.
NMFS is proposing to incorporate the ASMFC's recommendation to
qualify vessels based on a calendar year time
[[Page 284]]
period, rather than some other time period, such as a Federal lobster
fishing year (May 1 through April 30). The use of calendar years would
be consistent with recommendations provided by the ASMFC. In addition,
documents provided by fishermen to demonstrate historic participation,
such as tax returns, are commonly based on a calendar year rather than
a fishing year. Also, there is often less lobster fishing effort in the
winter months due to weather conditions and the availability of the
resource. Therefore, it is less likely that a 2-consecutive month
period used to qualify a vessel would overlap the December to January
time period.
Qualification Criteria
In order to qualify to fish for lobster with traps in Area 3,
Federal lobster permit holders would need to meet all of the following
criteria:
1. Possession of a current Federal limited access lobster permit.
2. Provision of documentation to demonstrate that at least 200
lobster traps were set, allowed to soak, hauled back, and re-set in
Area 3 during a 2-consecutive calendar month period in any calendar
year during the qualification period, from March 25, 1991, through
September 1, 1999. If 1991 is chosen by the permit holder as the
qualifying year, documentation should reflect relevant activity
occurring only during the part of the 1991 calendar year that falls
within the qualification period (March 25, 1991, through December 31,
1991). If the permit holder chooses 1999 as the qualifying year, the
documentation submitted in response to the qualification criteria must
reflect relevant fishing activity during the period of the 1999
calendar year that falls within the qualifying period (January 1, 1999,
through September 1, 1999). If any other calendar year within the
qualification period is chosen, documentation submitted with respect to
the qualification criteria may reflect relevant activity during any
portion of that calendar year. Documentation may include copies of
vessel logbooks; permit applications; Federal Fishing Vessel Trip
Reports (NOAA Form 88-30); official state reporting documentation
showing the number of traps fished, including, but not limited to,
state report cards, license application forms, and catch reports; an
approved Federal Fishing Vessel and Gear Damage Compensation Fund
Report (NOAA Form 88-176); and/or other forms of credible
documentation.
3. Provision of sales receipts or other documents pertaining to the
sale of lobsters and 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, through September 1, 1999.
Trap Allocations
Federal permit holders intending to fish for lobster with traps in
Area 3 would also have to provide a signed affidavit to NMFS certifying
the maximum number of individual traps the permit holder set, allowed
to soak, hauled back, and re-set in Area 3 at any one time during the
qualifying year. This affidavit must be accompanied by the same or
similar type of documentation used to demonstrate compliance with
qualification criterion number 2. Documentation submitted to support
the affidavit may reflect activity during any point within the
qualifying year and does not necessarily need to represent activity
conducted during the 2-consecutive month period used to substantiate
qualification criterion number 2.
The use of Federal Fishing Vessel Trip Reports to document
historical fishing effort (fishing location and number of traps fished)
in the lobster fishery would be possible for some, but not all, Federal
lobster permit holders (e.g., those holding other Federal species
permits that, unlike lobster permits, require mandatory reporting). A
recent review by NMFS indicates that of 3,153 Federal lobster permit
holders in 1997, 1,984 (approximately 62 percent) 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).
Use of Federal Fishing Vessel and Gear Damage Compensation Reports
will be limited to an unknown number of Federal lobster permit holders
who have submitted compensation claims for gear loss under the
provisions of the Fishermen's Protective Act (22 U.S.C. 1980 et seq.).
Vessel logbooks, receipts from the sale of lobsters or the purchase of
lobster traps, observer trip reports, and income tax forms provide
other examples of documentation that could be used to help substantiate
previous levels of lobster fishing effort (i.e., number of traps). Due
to the varying degrees to which each of these forms of documentation
may be either available or relevant for purposes of certifying
historical trapping effort on a case-by-case basis, NMFS proposes that
the discretion should be left to the individual permit holder to decide
which documents to use. Accordingly, NMFS does not agree with the
ASMFC's recommendations that a priority ranking should be assigned to
the use of any one form of documentation over another.
Some fishermen would likely need a combination of documents to
certify the number of traps fished historically. Although NMFS
recognizes the importance of this information as a basis to certify
historical participation in the Area 3 fishery, it is sensitive to the
fact that no mandatory reporting requirements in the lobster fishery
exist. NMFS believes, at this point, that the use of an affidavit, with
the provision of supporting documentation to NMFS, would accommodate
the necessary procedures to implement lobster trap fishing effort
controls on the basis of historical participation.
The ASMFC has also recommended that NMFS contract with an
independent outside entity to determine and recommend trap allocations
and publish a notice that specifies initial trap allocations for each
lobster permit holder. NMFS disagrees and believes that an in-house
review would be the most efficient and equitable means of approving
trap allocations. In addition, the release of personal documents and
records to an outside review body raises privacy issues. NMFS also
believes that the issuance of a public notice that would specify
individual trap allocations for each Federal permit holder, as
recommended by the ASMFC, also raises privacy issues and serves no
constructive purpose.
Trap Reduction Plan
Once qualified, a lobster permit holder would be allocated a
certain number of lobster traps, based on the affidavit and supporting
documentation provided, but no Federal lobster permit holder would be
given an initial lobster trap allocation of more than 2,656 lobster
traps. (This maximum trap allocation was recommended by ASMFC as a
result of Addendum II to Amendment 3 of the ISFMP.) Each trap
allocation of more than 1,200 traps would be reduced annually on a
sliding scale basis over 4 years. Trap reductions would not go below a
baseline of 1,200 traps. Each initial allocation in Area 3 of fewer
than 1,200 traps would remain at that allocation. The reduction
schedule recommended by the ASMFC is shown in Table 1.
[[Page 285]]
Table 1. Area 3 Trap Reduction Schedule
----------------------------------------------------------------------------------------------------------------
Trap Allocation by Fishing Year*
---------------------------------------------------
2005 and
Number of Traps Approved by the Regional Administrator beyond
2002 2003 2004 until
changed
----------------------------------------------------------------------------------------------------------------
1200-1299 1200 1200 1200 1200
1300-1399 1200 1200 1200 1200
1400-1499 1290 1251 1213 1200
1500-1599 1388 1337 1297 1276
1600-1699 1467 1423 1380 1352
1700-1799 1548 1498 1452 1417
1800-1899 1628 1573 1523 1482
1900-1999 1705 1644 1589 1549
2000-2099 1782 1715 1654 1616
2100-2199 1856 1782 1715 1674
2200-2299 1930 1849 1776 1732
2300-2399 2003 1905 1836 1789
2400-2499 2076 1981 1896 1845
2500-2599 2197 2034 1952 1897
2600-2699 2218 2107 2008 1949
2700-2799 2288 2169 2063 2000
2800-2899 2357 2230 2117 2050
2900-2999 2425 2291 2171 2100
3000-3099 2493 2351 2225 2150
3100-3199 2575 2422 2288 2209
3200 2656 2493 2351 2267
----------------------------------------------------------------------------------------------------------------
* Trap allocations below 1,200 will not be subject to further reductions.
This proposed rule would require that any Federal lobster permit
holder applying for an Area 3 trap allocation who also applies for a
trap allocation in Area 4, Area 5, or in all three of those areas use
the same qualifying year for all areas and avoid a combined trap
allocation greater than the number of traps that the permit holder
fished with any one vessel in any one year. In addition, the current
requirement that Federal permit holders who elect to fish in multiple
areas must abide by the most restrictive regulations, including trap
allocations, in any one elected area at any one time, would remain in
effect.
Vessel Upgrades
NMFS is not proposing to adopt the ASMFC's recommendation to limit
vessel upgrades for Federal permit holders receiving an Area 3 trap
allocation. This limitation, if implemented, would preclude federally
permitted vessels in the Area 3 lobster fishery that measure over 50 ft
(15.24 m) in length, or upgrading to over 50 ft (15.24 m) in length,
from upgrades or replacement that would result in more than a 10-
percent increase in length overall, or a 20-percent increase in shaft
horsepower, for 2 years.
NMFS does not concur with this recommendation. A prohibition on an
increase in vessel length or an increase in horsepower for a 2-year
period would require existing permit holders to substantiate existing
baseline vessel characteristics. Lobster trap vessels are generally
small, with an average length of 39 ft (11.9 m). Many such vessels are
not U.S. Coast Guard documented, and, therefore, information on length
and horsepower may not be available to NMFS. The implementation of
lobster vessel upgrade criteria may accordingly require a marine survey
to establish legal vessel specifications, adding a financial burden on
vessel owners. The potential cost to hire a marine surveyor or naval
architect to verify existing baseline vessel characteristics can range
from $150 to $600, with associated costs increasing with vessel size,
and would result in added delays for vessel replacement and transfers,
if implemented. NMFS' review of requests for transfers would take more
time, because NMFS would need to verify whether the specific vessel
with a limited access American lobster permit would qualify to fish in
Area 3 and, therefore, would be restricted by the upgrade provision.
NMFS is concerned that implementation of the ASMFC's recommended,
temporary upgrade restrictions would be unnecessarily burdensome for
fishermen and NMFS and would afford no obvious conservation benefits to
the lobster resource, unlike the permanent restrictions on vessel and
horsepower upgrades in the scallop and groundfish fisheries. In
addition, an unknown number of vessels that would qualify for
historical participation in Area 3 as specified in this proposed rule
may currently hold a Federal fisheries permit in another fishery that
permanently restricts vessel and horsepower upgrades. The
implementation of trap limits, either fixed or based on a historical
level of participation, has the potential to effectively limit fishing
effort in the offshore lobster fishery without an additional
requirement for vessel upgrade restrictions.
Areas 4 and 5 Fishing Effort Control Program
Area Coordinates
EEZ Nearshore Management Area 4 and EEZ Nearshore Management Area 5
are defined in 50 CFR 697.18(e) and (f), respectively. A copy of a map
showing the American lobster EEZ management areas is available upon
request to the Director, State, Federal and Constituent Programs
Office, see ADDRESSES.
Qualification Period and Establishment of a Federal Control Date
The eligibility of Federal lobster permit holders to fish with
traps in the Areas 4 and/or 5 fishery would be based on proof of
historical participation and numbers of traps fished by a vessel during
a qualifying period from March 25, 1991, through September 1, 1999.
NMFS is not proposing to adopt the ASMFC-recommended ending date
(control date) of September 15, 1998, for this qualification period
because NMFS previously notified the public that it may use September
1, 1999, as the control date. See Area 3 discussion for
[[Page 286]]
associated rationale. NMFS is proposing to use the ASMFC's recommended
2-consecutive calendar month period criterion within the qualification
period to demonstrate that at least 200 lobster traps were set, allowed
to soak, hauled back, and re-set in Areas 4 or 5. See Area 3 discussion
for associated rationale. NMFS is proposing to incorporate the ASMFC's
recommendation to qualify vessels based on a calendar year time period,
rather than some other time period such as a Federal lobster fishing
year (May 1 through April 30). See Area 3 discussion for associated
rationale.
Qualification Criteria for EEZ Nearshore Management Area 4
This proposed rule would require Federal lobster permit holders to
meet the following criteria in order to fish for lobster with traps in
Federal waters of Area 4:
1. Possession of a current Federal limited access lobster permit.
2. Provision of documentation to demonstrate that at least 200
lobster traps were set, allowed to soak, hauled back, and re-set in
Area 4 during a 2-consecutive calendar month period in any calendar
year during the qualification period from March 25, 1991, through
September 1, 1999. If 1991 is chosen by the permit holder as the
qualifying year, documentation should reflect relevant activity
occurring only during the part of the 1991 calendar year that falls
within the qualification period (March 25, 1991, through December 31,
1991). If the permit holder chooses 1999 as the qualifying year, the
documentation submitted in response to the qualification criteria must
reflect relevant fishing activity during the period of the 1999
calendar year that falls within the qualifying period (January 1, 1999,
through September 1, 1999). If any other calendar year within the
qualification period is chosen, documentation submitted with respect to
the qualification criteria may reflect relevant activity during any
portion of that calendar year.
Documentation may include copies of vessel logbooks; permit
applications; Federal Fishing Vessel Trip Reports (NOAA Form 88-30);
official state reporting documentation showing the number of traps
fished, including, but not limited to, state report cards, license
application forms, and catch reports; an approved Federal Fishing
Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-176);
and/or other forms of credible documentation.
Qualification Criteria for EEZ Nearshore Management Area 5
This proposed rule would require Federal lobster permit holders to
meet the following criteria in order to fish for lobster with traps in
Federal waters of Area 5:
1. Possession of a current Federal limited access lobster permit.
2. Provision of documentation to demonstrate that at least 200
lobster traps were set, allowed to soak, hauled back, and re-set in
Area 5 during a 2-consecutive calendar month period in any calendar
year during the qualification period from March 25, 1991, through
September 1, 1999. If 1991 is chosen by the permit holder as the
qualifying year, documentation should reflect relevant activity
occurring only during the part of the 1991 calendar year that falls
within the qualification period (March 25, 1991, through December 31,
1991). If the permit holder chooses 1999 as the qualifying year, the
documentation submitted in response to the qualification criteria must
reflect relevant fishing activity during the period of the 1999
calendar year that falls within the qualifying period (January 1, 1999,
through September 1, 1999). If any other calendar year within the
qualification period is chosen as the qualifying year, documentation
submitted with respect to the qualification criteria may reflect
relevant activity during any portion of that calendar year.
Documentation may include copies of vessel logbooks; permit
applications; Federal Fishing Vessel Trip Reports (NOAA Form 88-30);
official state reporting documentation showing the number of traps
fished, including, but not limited to, state report cards, license
application forms, and catch reports; an approved Federal Fishing
Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-176);
and/or other forms of credible documentation indicating that at least
200 lobster traps were set, allowed to soak, hauled back, and re-set in
Area 5 during a 2-consecutive calendar month period in any calendar
year during the qualification period.
Rationale for Provision of Documentation in Support of a History of
Lobster Trap Fishing in Areas 4 or 5
Although not recommended by the ASMFC, NMFS believes that requiring
documentation to substantiate that at least 200 lobster traps were set,
allowed to soak, hauled back, and re-set in either or both Areas 4 or
5, during a 2-consecutive calendar month period in any calendar year
during the qualification period is necessary to effectively establish
historical participation, consistent with the qualification criteria of
the Area 3 plan. NMFS has no conclusive data for determining historical
numbers of traps fished in Areas 4 and 5. However, on the basis of the
best information available to NMFS and associated comments received
with respect to the DSEIS, NMFS believes that the setting, soaking,
hauling back, and re-setting of at least 200 lobster traps in Areas 4
or 5 during a 2-consecutive calendar month period in any calendar year
during the qualification period represents a reasonable indicator of a
fisherman's socio-economic reliance on the lobster fishery.
Trap Allocations for Areas 4 and 5
Similar to the proposed action for Area 3, this proposed rule would
require Federal permit holders qualifying to fish for lobster with
traps in Areas 4 and/or 5 to provide a signed affidavit certifying the
maximum number of individual traps the permit holder set, allowed to
soak, hauled back, and re-set in Areas 4 and/or 5 at any one time
during the qualifying year. The affidavit would be submitted to the
Regional Administrator for use in determining the permitted vessel's
lobster trap allocation for Areas 4 and/or 5. This proposed rule would
require that such certification be based upon the same or similar type
of documentation used to fulfill the qualification criterion number 2,
and that the affidavit be accompanied by credible, written documents
that corroborate the number of individual lobster traps claimed in the
affidavit. Documentation submitted to support the affidavit may reflect
activity during any point within the qualifying year and does not
necessarily need to represent activity conducted during the 2-
consecutive month period used to substantiate trap fishing activity in
qualification criterion number 2.
ASMFC 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 ASMFC, NMFS is
proposing a trap limit not to exceed 1,440 lobster traps per vessel, on
the basis of public comment received on the DSEIS, and the conservation
benefit to the resource. NMFS 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
[[Page 287]]
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.
The implementation of a trap limit is also consistent with the
proposed measure for controlling lobster trap fishing effort on the
basis of historical participation proposed for Area 3. A trap limit not
to exceed 1,440 lobster traps was initially analyzed as a non-preferred
alternative in the DSEIS. In accordance with ASMFC recommendations,
NMFS is not proposing a trap reduction requirement once the initial
trap allocations have been determined for qualified participants in the
Areas 4 and 5 trap fisheries.
This proposed rule would require any Federal lobster permit holder
applying for access to more than one of the 3 areas (Areas 3, 4, or 5)
to 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, would remain in effect.
Appeals Process
Any applicant denied a limited access American lobster permit for
Areas 3, 4, and/or 5 could appeal to the Regional Administrator within
30 days of the date indicated on the notice of denial. Any such appeal
would need to be in writing. The only ground for appeal would be that
the Regional Administrator erred in concluding that the vessel did not
meet the criteria specified in this proposed rule. The appeal would
need to set forth the basis for the applicant's belief that the
Regional Administrator's decision was made in error.
The Regional Administrator would appoint a designee to make the
initial decision on the appeal. Within 30 days of the date on the
notice of the initial decision on the appeal, the appellant could
request in writing a review by the Regional Administrator of the
initial decision. The appellant could present his/her objections to the
initial decision on the appeal at a hearing before an officer appointed
by the Regional Administrator. The hearing officer would make findings
of fact and a recommendation to the Regional Administrator. Upon
receiving the findings and the recommendation, the Regional
Administrator would make a decision on the appeal, which would be the
final decision of the Department of Commerce. If the appellant did not
request a review within 30 days of the date on the notice of the
initial decision on the appeal, the initial decision would be the final
administrative action of the Department of Commerce.
A vessel denied a limited access American lobster permit for Areas
3, 4, and/or 5 could fish in Areas 3, 4, and/or 5, provided that the
denial had been appealed, the appeal was pending, and the vessel had on
board a letter from the Regional Administrator authorizing the vessel
to fish in Areas 3, 4, and/or 5. The Regional Administrator would issue
such a letter for the pendency of any appeal. This letter of
authorization would be the final administrative action of the
Department of Commerce pending a final decision on the appeal. While
the appeal was pending, the vessel could fish up to 800 lobster traps,
unless the vessel's Federal lobster permit had designated only Area 3
for lobster trap fishing, whereby, the vessel could fish up to 1,800
lobster traps in Area 3 only. If the appeal was finally denied, the
Regional Administrator would send a notice of final denial to the
vessel owner; the authorizing letter would become invalid 5 days after
receipt of the notice of denial or 15 days after the date it was sent,
whichever occurred first.
Clarification of Procedures for Consideration of Conservation
Equivalency Measures as They Apply to Federal Lobster Permit
Holders
The ISFMPs developed by ASMFC allow states to adopt management
measures that differ from the specific management measures in the
ISFMPs as long as the states' alternative measures achieve the same
quantified level of conservation for the resource under management.
Such alternative management measures are referred to as ``conservation
equivalent measures.'' For example, any state may request a change to
regulations in waters under its jurisdiction pertaining to the default
trap limits specified in the ISFMP. Such requests are reviewed by
ASMFC's Lobster Technical Committee, which provides its evaluation of
the biological merit of such proposals to ASMFC's Lobster Board for
subsequent policy review and approval. Upon approval of such measures,
the ASMFC, under the provisions of the ACFCMA, may decide to recommend
modifications to Federal lobster regulations, as may be deemed
necessary, to complement a state's conservation equivalent measures.
This proposed rule would clarify a procedure by which NMFS would
consider such recommended modifications to Federal lobster regulations
as they may pertain to the activities of Federal lobster permit holders
from the affected state(s).
Specifically, under 50 CFR 697.25, NMFS would consider any future
recommendations for modifications to Federal regulations based on
conservation equivalency that are formally submitted to the agency in
writing by the ASMFC and that contain the following supporting
information: (1) a description of how Federal regulations would 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 a recommendation for conservation equivalent measures
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.
In the DSEIS prepared for this action, NMFS expressed concern that
recommendations from the ASMFC for Federal implementation of
conservation equivalent measures may unduly burden the agency, given
that there are 15 member states in the ASMFC and that each state may
seek Federal implementation of the conservation equivalent of several
different types of measures under the ISFMP. NMFS believes that
receiving the supporting information and analyses along with a
recommendation for Federal implementation of conservation equivalent
measures is necessary to enable NMFS to respond to recommendations for
Federal rulemaking in a more timely and efficient manner. This
cooperative approach to the implementation of conservation equivalent
measures would benefit the states, fishermen, and enforcement of
fishery regulations by minimizing the time lag between state and
Federal implementation of approved conservation equivalent
[[Page 288]]
measures and by reducing the time period during which state-only permit
holders and Federal permit holders from the same state may be subject
to different requirements.
Modification of Area 1 Trap Limits for New Hampshire Lobster
License Holders
In October 1998, ASMFC 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. That state'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 ASMFC recommended that NMFS modify Federal regulations
to maintain the biological and socio-economic basis of New Hampshire's
lobster management program. The ASMFC has not received similar
proposals, although allowable, from the States of Maine and
Massachusetts, which also border Area 1. The ASMFC requested that NMFS
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.
There are approximately 80 Federal lobster permit holders with
vessel ports in New Hampshire (1998 data) who harvest lobster primarily
with trap gear. Twenty-two of these individuals also possess a full
commercial lobster license, and 26 possess a limited commercial lobster
license issued by the State of New Hampshire, as described in the
DSEIS.
Under current regulations, Federal lobster permit holders must
abide by the stricter of either Federal or state lobster management
measures. Under the preferred alternative, NMFS would waive this
requirement with respect to the number of lobster traps for Federal
lobster permit holders who elect to fish in Area 1 and who possess a
valid New Hampshire full commercial lobster license for Area 1.
Specifically, this proposed rule would 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 would be allowed to fish an
additional 400 lobster traps in New Hampshire state waters.
Lobster Management Area Boundary Clarification
In Addendum 1 to the American Lobster ISFMP, the ASMFC 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.
NMFS proposes to implement compatible boundary lines for Area 1,
Area 2, and the Outer Cape Area to maintain consistency with the
ASMFC's American lobster ISFMP and to avoid confusion if the Federal
and ASMFC area boundaries and their associated lobster management
measures differ.
Cape Cod Canal Overlap
The Cape Cod Canal (Canal) cuts through the Cape Cod peninsula in
Massachusetts and connects the waters of Cape Cod Bay to the north
(within Area 1) with the waters of Buzzards Bay to the south (within
Area 2). The Canal is large enough at certain points to allow the
setting of lobster trap gear, and lobster fishermen from both Areas 1
and 2 have historically set trap gear in the Canal.
To allow fishermen in the adjacent areas of Area 1 and Area 2 to
maintain their historical ability to fish in the Canal, the Cape Cod
Canal would be considered an area of overlap between Areas 1 and 2. To
establish this overlap area, the existing boundaries of both Area 1 and
Area 2 would be modified to encompass the Cape Cod Canal.
Outer Cape Lobster Management Area's Northern Boundary
As a result of an oversight contained in Amendment 3 to the ISFMP,
the boundary line coordinates separating the Outer Cape Area from Area
1 did not extend to the shoreline of Massachusetts and, therefore, did
not effectively separate these management areas. To correct this
situation, under Addendum 1 to the ISFMP, the coordinates for the
boundary line separating Area 1 and the northern boundary of the Outer
Cape Area were revised and extended around the western tip of Cape Cod.
This revision effectively extended the boundary line to the shoreline
of Massachusetts and created an area of overlap between Area 1 and the
Outer Cape Area.
NMFS proposes to revise the existing boundary line coordinates as
follows:
Northern Boundary: Following the LORAN C 9960-Y-44120 line to the
intersection with the 9960-W-13850 line (42 deg.04.25' N. lat.,
70 deg.17.22' W. long.), then following that line in a southeasterly
direction to the intersection with the 9960-Y-44110 line (42 deg.02.84'
N. lat., 70 deg.16.1' W. long.), then following that line in an
easterly direction to Race Point (42 deg.03.35' N. lat., 70 deg.14.2'
W. long.) in the town of Provincetown, MA.
Overlap Zone Boundary: Beginning at Race Point, MA (42 deg.03.35'
N. lat., 70 deg.14.2' W. long.) following the LORAN C 9960-Y-44110 in a
westerly direction to its intersection with 9960-W-13850 line
(42 deg.02.84' N. lat., 70 deg.16.1' W. long.), then following that
line in a southeasterly direction to its intersection with a 9960-X-
25330 line (41 deg.52' N. lat., 70 deg.07.49' W. long.), then following
that line in a northeasterly direction to where it meets the shoreline
of Great Island in the town of Wellfleet, MA (41 deg.54.46' N. lat.,
70 deg.03.99' W. long.), then following the shoreline in a northerly
direction back to the beginning.
When the coordinates for the recommended revision to the Overlap
Zone boundary between Area 1 and the Outer Cape Area were plotted,
there was a problem with the information provided in Addendum I. As a
result, the chart included in the Addendum does not agree with the
associated LORAN C coordinates. The chart in Addendum I indicates that
the area of overlap extends to a point northeast of and beyond Race
Point, MA, continuing around the tip of Cape Cod, while the coordinates
denote an overlap area beginning at Race Point, MA. NMFS developed the
coordinates in this section based on the coordinates in Addendum I, not
on the graphics (chart) in Addendum I. The ASMFC has been informed of
this discrepancy.
Boundary Change Between Area 2 and The Outer Cape Management Area
In Addendum I the ASMFC revised the boundary separating Area 2 and
the Outer Cape Area, which runs from the southeastern tip of Cape Cod
to Nantucket Island, by shifting it west by
[[Page 289]]
5 minutes of longitude, from 70 deg. W. Long. to 70 deg. 05' W. Long.
Revised Boundary Description for Area 1, Area 2, and the Outer Cape
Area
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. This
proposed rule would re-define Area 1 to be the area 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' W.
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.04.25' 70 deg.17.22'
N. W.
G2 42 deg.02.84' 70 deg.16.1'
N. W.
G3 42 deg.03.35' 70 deg.14.2'
N. W.
------------------------------------------------------------------------
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.
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' W.
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.47.25'
N. W.
R 41 deg.18.5' 71 deg.54.5'
N. W.
------------------------------------------------------------------------
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.
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.04.25' 70 deg.17.22'
N. W.
G2 42 deg.02.84' 70 deg.16.1'
N. W.
G4 41 deg.52' N. 70 deg.07.49'
W.
G5 41 deg.54.46' 70 deg.03.99'
N. W.
From Point ``G5'' along the outer Cape Cod coast to point ``H''
H 41 deg.40' N. 70 deg.05' W.
H1 41 deg.18' N. 70 deg.05' W.
From Point ``H1'' along the eastern coast of Nantucket Island, MA, to
Point ``I''
I 41 deg.15' N 70 deg.00' W.
J 41 deg.21.5' 69 deg.16' W.
N.
From Point ``J'' Back to Point ``F.''
------------------------------------------------------------------------
Clarification of Lobster Trap Tag Requirements
NMFS includes in this proposed rule 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 clearly specified in the
regulatory text. This amendment would clarify a tagging requirement
that was previously specified by reading several sections in
combination, including regulations found under 50 CFR 697.7 and 50 CFR
697.19. This technical amendment is intended to make the regulations
easier to understand.
Classification
This proposed rule has been determined to be significant for the
purposes of Executive Order 12866.
NMFS prepared a DSEIS/RIR/IRFA for this action; a notice of
availability was published on November 24, 2000 (65 FR 70567). The
Initial Regulatory Flexibility Analysis (IRFA), in compliance with the
Regulatory Flexibility Act, describes the economic impacts of the
proposed rule, if adopted, on small entities. A summary of the IRFA
follows: Reasons why the action is considered, as well as the
objectives and legal basis for this rule, are described in the IRFA and
the preamble to this rule and are not repeated here. All participants
in the lobster fishery are considered to be small entities.
Implementation of historical participation and lobster trap limits in
Areas 3, 4, and 5 is expected to result in a reduction in the number of
Federal permit holders qualified to fish for lobster with traps in
these management areas. Individuals failing to meet the proposed
qualification criteria may: (1) decide to fish in areas not subject to
historical participation; (2) decide to retain their lobster fishing
permit but not use it; (3) leave the lobster fishery entirely by
selling his/her lobster vessel; or (4) fail to renew their Federal
lobster permit.
Although it can be assumed that there will be no immediate impact
on existing fishing operations that do not harvest lobster in
substantial numbers with lobster trap gear, the option to do so in the
future will be precluded under a trap fishing effort program based on
historical participation. This may affect the economic value associated
with their Federal lobster permit in the event that permit holders wish
to sell their vessel to buyers who would otherwise desire to fish for
lobster with traps. Vessels that qualify to participate in Areas 3, 4,
and/or 5 will likely see a reduction in gear conflict and be protected
from lobster fishing effort expansion. The proposed action will also
alleviate socio-economic impacts from any reduction in lobster harvests
which may have resulted if qualifying vessels historically fished a
number of lobster traps in excess of the current fixed trap limits.
Permit holders who fish greater amounts of gear than allowed by the
proposed maximum lobster trap limits may experience a small, yet
unquantifiable, reduction in landings if they are unable to alter their
fishing practices to mitigate this lower level of lobster trap fishing
effort.
The proposed action to allow owners of vessels who are in
possession of a Federal limited access lobster permit and who also
possess a New Hampshire full commercial lobster fishing license to fish
up to 800 lobster traps in Federal waters and a maximum of 400
additional lobster traps in New Hampshire state waters would alleviate
adverse impacts on fishing practices and income which would otherwise
be imposed by a lower lobster trap limit. Due to more restrictive
lobster trap limits imposed on New Hampshire part time commercial
lobster permit holders, a potential overall reduction in traps fished
by commercial lobster permit holders in that state could result in some
unquantified decrease in lobster fishing mortality and marine mammal
and sea turtle trap gear entanglements.
The proposed action to revise and clarify the boundary coordinates
within the state waters of Massachusetts for Area 1, 2, and the Outer
Cape
[[Page 290]]
Management Area would: allow Federal lobster permit holders to maintain
traditional fishing practices; avoid confusion and maintain consistency
with the ISFMP; and allow Federal American lobster permit holders to
fish under lobster management measures associated with the respective
management area. If implemented, the proposed boundary revisions would
have no direct effect on the lobster resource since it is specific to a
minor modification of coordinates for lobster area boundaries in
Massachusetts state waters and is not expected to substantially affect
marine mammals or sea turtles.
The DSEIS/RIR/IRFA analyzed a preferred alternative which
recommended the implementation of historical participation measures to
control lobster fishing effort in Areas 3, 4 and 5, with a maximum
lobster trap limit and a lobster trap reduction schedule for Area 3;
implementation of conservation equivalent trap limits in New Hampshire
waters of Area 1; and clarification of boundaries of specific lobster
management areas. The DSEIS/RIR/IRFA also analyzed five alternatives to
specific components of the preferred alternative. Three of these
alternatives propose implementation of historical participation as a
means to control lobster fishing effort in Areas 3, 4, and 5. Due to
the unique nature of the proposed action relating to Area 1 lobster
trap limits for Federal lobster permit holders fishing in New Hampshire
waters and management area boundary clarifications, only one
alternative (no action-status quo) was presented for each of these two
components of this proposed rule.
Impacts of Historical Participation for Areas 3, 4, and 5
The three alternatives relating to historical participation
included: taking no action; implementing historical participation
requirements for Areas 3, 4, and 5, but retaining current trap limits;
and implementing historical participation requirements as identified
under the proposed action, but incorporating a maximum trap allocation
for Areas 4 and 5.
Under current Federal regulations, owners of vessels that elect to
harvest American lobsters with traps are required to inform NMFS each
year of the lobster management area(s) they intend to set trap gear in.
The election of one or more LCMA requires only that the vessel possess
a current Federal American lobster limited access permit. The DSEIS/
RIR/IRFA for this action, announced by a notice of availability
published on November 24, 2000 (65 FR 70567), used data available to
NMFS for the 2000-2001 fishing year, from May 2000 through August 2000,
on the number of owners of vessels that elected to harvest American
lobsters in specific LCMAs. Some owners of vessels in possession of a
Federal lobster permit may have elected LCMAs after August 2000, or may
have elected LCMAs with no intention to fish with lobster traps in one
or more of the elected LCMAs. Therefore, the number of vessels electing
to fish in LCMAs 3, 4, or 5 may be higher than the number identified in
the DSEIS/RIR/IRFA for this action and the total number that do not
qualify may be higher. Following the comment period on this proposed
rule, a Final Supplemental Environmental Impact Statement/Regulatory
Impact Review/Final Regulatory Flexibility Analysis (FSEIS/RIR/FRFA)
will analyze and evaluate the effects of implementing regulations for
this action and will incorporate the most current data available to
NMFS at that time.
The DSEIS/RIR/IRFA analysis for this action indicated that
approximately 3,361 vessels possess a current Federal lobster permit
and fish for lobster with either trap or non-trap gear. Of the 3,361
lobster vessels that possess a current Federal lobster permit, 769 have
designated Area 3 as at least one of their areas for trap fishing. Of
these, NMFS estimates that the total number of vessels that would
qualify under the proposed historical qualification criteria to
continue fishing for lobster with traps in the Area 3 lobster trap
fishery would range from a low of 53 to a high of 117.
Similarly, of the approximately 405 vessels in possession of
current Federal lobster permits that were designated for trap fishing
in either Areas 4 or 5, the total number of vessels that would qualify
to continue fishing with traps in Areas 4 and 5 on the basis of the
proposed qualification criteria for the Areas 4 and 5 lobster trap
fisheries would range from 47 to 60. The proposed implementation of a
maximum trap limit of 1,440 lobster traps in Areas 4 and 5 is expected
to result in a reduction in the number of lobster traps fished in these
areas. Although NMFS has no information on the total number of lobster
traps fished in those areas, data provided to NMFS by New Jersey,
summarizing the results of a survey of New Jersey lobstermen, indicate
that approximately 15% (14 individuals) of fishermen responding to the
survey who possess both a New Jersey lobster trap license and a Federal
lobster permit have fished with greater than 1,440 traps in LCMA 4. The
fishing effort for these 14 permit holders has ranged from 1,500 to
2,500 (with an average of 1,868) traps. On the basis of this
information, establishment of a maximum trap limit for LCMA 4 would
result in at least a reduction of 26,152 traps, with a corresponding,
but unquantifiable, reduction in lobster fishing mortality.
The exact degree of lobster trap reductions in Areas 4 and 5 is
unquantifiable because, in the Federal American lobster fishery, there
are currently no requirements to submit vessel trip reports. In Area 3,
where lobster traps will be reduced over a 4-year period, the scheduled
lobster trap reductions are likely to result in a small, yet
unquantifiable, reduction in Area 3 landings. If markets are affected,
the effect is likely to be small. Landings in Areas 4 and 5 accounted
for less than 10 percent of total domestic lobster landings in 1999,
and market effects from lobster trap reductions in Area 3 may occur in
a limited segment of the market for larger lobsters (i.e., the offshore
fishery lands larger lobsters, on average, than other components of the
lobster fishery as a whole). If lobster prices do increase, vessels
fishing in areas not subject to historical participation and where
expansion of trap effort is possible (i.e., up to the 800 lobster trap
limit) may increase their effort and offset any reduction in landings
from Areas 3, 4, and 5. In this dynamic setting, lobster prices are
likely to be unaffected by regulatory action under this proposed rule.
The effect of limiting access to historical participants in Areas
3, 4, and 5 is expected to have two major economic effects. First,
limiting access in these areas will protect qualifiers from effort
expansion. Second, lobster trap allocations in Areas 3, 4, and 5 and
overall trap reductions in Area 3 over a 4-year period based on
historical participation will preserve the competitive position and
structure of the offshore fishery. Although it can be assumed that
there will be no immediate impact on current fishing operations that do
not harvest lobster in substantial numbers with trap gear, the option
to do so in the future will be precluded under a trap fishing effort
program based on historical participation. This situation may also
impact the ``economic value'' associated with these permits in the
event that permit holders wish to sell their vessels to buyers who
would otherwise desire to fish in the lobster trap fishery, but would
be unable to do so. Economic effects will be greater for those vessels
that are currently fishing lobster traps in Areas 3, 4, or 5, but will
not qualify for historical participation in these areas because they
will not be able to meet
[[Page 291]]
one or more of the qualification criteria. Effective on May 1, 2000,
Federal lobster permit holders are required to elect on their permits
the lobster management areas in which they intend to fish for lobster
with traps. However, NMFS does not have adequate data on the extent to
which permit holders, although authorized, actually fish with traps in
the elected management areas. Given this uncertainty, Federal lobster
permit data indicates that a maximum of 769 permit holders elected to
fish for lobster with traps in Area 3. On the basis of NMFS analyses, a
low of 652 to a high of 716 Federal permit holders, who would meet the
qualification criteria to fish with lobster traps in Area 3 under this
proposed rule, would no longer be able to continue fishing with lobster
traps in this management area.
Analyses of impacts for current participants in the Areas 4 and 5
lobster trap fisheries are combined because of the lack of more precise
information on lobster trap fishing locations in these areas. Federal
lobster permit data indicates that, under current Federal regulations,
405 vessels in possession of current Federal lobster permits were
designated for lobster trap fishing in Areas 4 and/or 5. NMFS estimates
that a low of 47 to a high of 60 vessels would be able to meet the
proposed qualification criteria for Areas 4 and/or 5 under this
proposed rule and, consequently, would be able to continue fishing with
lobster traps in Areas 4 and 5. Lobster vessels that do not qualify
will still be able to fish for lobster with traps, but they will have
to do so by moving their traps into lobster management areas (other
than Areas 3, 4, and 5) that may already be congested, likely resulting
in increased fishing effort, additional congestion, and a potential
reduction in overall productivity and profitability. The extent to
which non-qualifiers would potentially decide to move trap operations
to other management areas is unknown. Furthermore, moving may be most
difficult for non-qualifying lobster permit holders who fish traps in
inshore areas and have vessel ports south of New York, since Area 2
(waters between Cape Cod and Long Island Sound) would be the closest
lobster management area not requiring historical participation.
Based on available information, approximately 14 vessels fished
more than 1,440 lobster traps in Areas 4 and 5 combined, out of the
total number of vessels electing to fish in Areas 4 and/or 5. On
average, these vessels fished 1,868 lobster traps prior to the
implementation of a fixed trap limit in January 2000. However, current
regulations limit vessels electing to fish in Areas 4 and/or 5 to 800
lobster traps. There may be a small, yet unquantifiable, reduction in
landings if impacted vessels are unable to alter their fishing
practices to mitigate this lower level of trap fishing effort compared
to historical trap levels. Yet, given that the current regulations
limit these vessels to 800 lobster traps, some qualifying vessels that
previously fished traps in excess of the current fixed trap limit may
be able to increase the number of traps fished up to the proposed trap
cap of 1,440 lobster traps for Areas 4 and 5, assuming they are
allocated 1,440 lobster traps under a historical participation regime.
The incentive and/or ability to increase traps fished would depend
on the scale of operation and other socio-economic factors. Incentives
may include a desire to establish and document a history of lobster
trap fishing in anticipation of future fishing effort reduction
measures and of a decline in alternative fishing opportunities in other
fisheries. Since the lobster trap fishery is a territorial fishery,
removal of traps by non-qualifiers or by vessels fishing in excess of
the proposed 1,440 lobster trap cap will open up territory that other
vessels may exploit.
In addition, an increase in the number of lobster traps fished does
not automatically translate to higher gross revenue; other factors such
as market conditions and operating costs have to be evaluated.
Fishermen setting lobster traps close to shore are likely to be able to
maintain landing levels because they can tend their lobster traps more
often. Harvest costs may decline for vessels that have historically
fished more than 1,440 lobster traps prior to the implementation of a
fixed trap limit; however, revenues may decline if fishing fewer
lobster traps translates into fewer lobster being landed. Assuming non-
qualifiers cannot or will not move trap operations to other management
areas, they would no longer be able to fish for lobster with trap gear.
Some such fishermen may be able to switch to other fisheries.
Historical Qualification Costs
Vessel owners would be required to provide an affidavit and
supporting documentation to substantiate their historical participation
application when attempting to qualify in one, two, or in all three of
the lobster management areas proposing to implement historical
participation in this proposed rule. The estimated time required to
provide an affidavit and supporting documentation to substantiate the
historical participation application are specified under collection-of-
information requirements, while historical qualification costs are
primarily associated with costs to locate, copy, telephone, and mail
the submission of the supporting documentation. The average historical
qualification cost, per vessel, for vessel owners who have been
notified by NMFS that they pre-qualify for historical participation in
Areas 3, 4, and/or 5, based on data available to NMFS, is estimated to
be $5.45 to provide an affidavit concurring with the NMFS pre-
qualification determination.
Vessels that do not pre-qualify need to submit the necessary forms
and all supporting documentation. The average historical qualification
cost, per vessel, for vessels submitting documentation to qualify in
one area ranges from $7.38 for Areas 4 and 5 to $8.89 for Area 3.
Documentation costs are higher for Area 3 due to the requirement to
show landings of at least 25,000 pounds during the qualifying year,
while criteria for Areas 4 and 5 have no minimum landings requirement.
The average historical qualification cost, per vessel, for vessels
submitting documentation to qualify in two lobster management areas
reflects the higher documentation costs associated with the Area 3
minimum landings criteria. The per vessel qualification costs range
from $9.98 for vessels submitting documentation to qualify for Areas 4
and 5 (but not Area 3), to $10.45 for vessels submitting documentation
to qualify for Area 3 and either Areas 4 or 5. The average historical
qualification cost, per vessel, for vessels submitting documentation to
qualify in all three lobster management areas is $14.35. These costs
are considered insignificant relative to other costs of doing business.
The proposed action concerning New Hampshire conservation
equivalent trap limits would allow those Federal lobster permit holders
who are also authorized by the State of New Hampshire to fish more
lobster traps in state waters (1,200 rather than 600 lobster traps) to
maintain or increase their relative share of landings in state waters
and to preserve the competitive position of that industry sector. It is
expected that Federal permit holders who are authorized to fish only
600 rather than 1,200 lobster traps in state waters under New Hampshire
state regulations would also be able to retain their historical
competitive position but will be unable to expand fishing operations
above 600 lobster traps.
Revision and clarification of the boundary coordinates for lobster
management areas in Massachusetts waters will allow fishermen to
maintain
[[Page 292]]
traditional fishing practices and fish under the lobster management
measures associated with the respective management area. Implementation
of the proposed revision to these boundary lines will also maintain
consistency with the identification of lobster management areas as
established under the ISFMP and will avoid the confusion that could
result if ISFMP and Federal area boundaries and their associated
lobster management measures differ.
This proposed rule, supplemented by the DSEIS, describes associated
reporting, record keeping, and compliance requirements. Special
professional skills would not be required to fulfill these
requirements. There are no other Federal regulations that overlap or
duplicate measures under this proposed rule. This proposed 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; and a lobster trap tag requirement
approved under OMB control number 0648-0351 with a response time of 1
minute per tag.
This proposed rule also contains new collection-of-information
requirements subject to the PRA which have been submitted to OMB for
approval. The public reporting burden for each collection of
information per response is indicated in parentheses 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 documentation of possession of a current valid
Federal lobster permit (5 minutes);
2. 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 period from March 25, 1991, through September
1, 1999 (15 minutes);
3. (For Area 3 only) Provision of sales receipts or other documents
pertaining to the sale of lobsters indicating the landing of at least
25,000 pounds of lobster from any location during the year used as the
qualifying year from March 25, 1991, to September 1, 1999 (10 minutes);
4. Provision of documentation for proof of historical participation
in two rather than one lobster management area (additional 15 minutes
if different consecutive two-month periods of trap fishing are used);
5. Provision of documentation for proof of historical participation
in three rather than one lobster management area (additional 30 minutes
if three different consecutive two-month periods are used);
6. Completion of lobster trap fishing area eligibility application
form (2 minutes for each area selected);
7. 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
(15 minutes); and
8. Provision of a written appeal request to the Regional
Administrator by non-qualifying permit holders (15 minutes).
Public comment is sought regarding: whether these proposed
collections-of-information are necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimates; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including information through the use of automated
collection techniques or other forms of information technology.
Send comments regarding these burden estimates or any other aspect
of the data requirements, including suggestions for reducing the
burden, to NMFS 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.
An updated Biological Opinion under Section 7 of the Endangered
Species Act (ESA) was issued for the American lobster fishery on
December 17, 1998. A formal consultation concluded that the continued
operation of the American lobster fishery operating under new measures
implemented to reduce entanglements, ``may affect but is not likely to
jeopardize the continued existence of the northern right whale,
humpback whale, fin whale, blue whale, sperm whale, sei whale,
leatherback sea turtle, and loggerhead sea turtle and is not likely to
destroy or adversely modify critical habitat that has been designated
for the northern right whale.'' In June 2000, formal consultations on
the lobster fishery were reinitiated. An updated Biological Opinion
under Section 7 of the ESA was issued for the Federal American lobster
fishery on June 14, 2001. The updated Biological Opinion concluded that
the Federal American lobster fishery is likely to jeopardize the
continued existence of the western North Atlantic right whale, but is
not likely to destroy or adversely modify critical habitat designated
for the right whale. The Biological Opinion also concluded that the
Federal American lobster fishery is not likely to jeopardize the
continued existence of humpback, fin, sei, blue, and sperm whales; or
loggerhead, Kemp's ridley, green, leatherback, and hawksbill sea
turtles. Following release of the updated Biological Opinion on June
14, 2001, a formal consultation was initiated on the effects of this
proposed action on endangered and threatened species.
List of Subjects in 50 CFR Part 697
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: December 20, 2001.
Rebecca Lent.
Deputy Assistant Administrator for Fisheries, 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. 697.4, paragraphs (a)(7)(vi) through (xi) are added to
read as follows:
Sec. 697.4 Vessel permits and trap tags.
(a) * * *
(7) * * *
(vi) Participation requirements for EEZ Nearshore Management Area
4. For fishing year 2002 and beyond, to fish for lobster with lobster
traps in EEZ Nearshore Management Area 4 (Area 4), the owner of a
vessel with a Federal lobster permit must provide the following to the
Regional Administrator within [45 days after the date of publication of
the final rule]:
(A) A copy of the vessel's current Federal lobster permit;
(B) Written documentation demonstrating that at least 200 lobster
[[Page 293]]
traps were set, allowed to soak, hauled back, and re-set in Area 4
during a 2-consecutive calendar month period in any calendar year
(hereinafter, ``the qualifying year'') during the period from March 25,
1991, through September 1, 1999 (hereinafter, ``the qualification
period'') 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). Documentation may include copies of vessel logbooks; permit
applications; Federal Fishing Vessel Trip Reports (NOAA Form 88-30);
official state reporting documentation showing the number of lobster
traps fished, including, but not limited to, state report cards,
license application forms, and catch reports; an approved Federal
Fishing Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-
176); and/or other forms of credible documentation; and
(C) A signed affidavit that certifies the number of individual
lobster traps the permit holder set, allowed to soak, hauled back, and
re-set in Area 4 at any one time during the chosen qualifying year must
be submitted to the Regional Administrator for use in determining the
permitted vessel's lobster trap allocation. This affidavit must be
accompanied by credible, written documents that corroborate the number
of individual lobster traps claimed in the affidavit. Such documents
may include the types of documents identified in paragraph
(a)(7)(vi)(B) of this section. Documentation submitted to support the
affidavit may reflect activity during any point within the qualifying
year and does not necessarily need to represent the 2-consecutive month
period used in paragraph (a)(7)(vi)(B) of this section.
(vii) Participation requirements for EEZ Nearshore Management Area
5. For fishing year 2002 and beyond, to fish for lobster with lobster
traps in EEZ Nearshore Management Area 5 (Area 5), the owner of a
vessel with a Federal lobster permit must provide the following to the
Regional Administrator within [45 days after the date of publication of
the final rule]:
(A) A copy of the vessel's current Federal lobster permit;
(B) Written documentation demonstrating that at least 200 lobster
traps were set, allowed to soak, hauled back, and re-set in Area 5
during a 2-consecutive calendar month period in any calendar year
(hereinafter, ``the qualifying year) during the period from March 25,
1991, through September 1, 1999 (hereinafter, ``the qualification
period'') 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). Documentation may include copies of vessel logbooks; permit
applications; Federal Fishing Vessel Trip Reports (NOAA Form 88-30);
official state reporting documentation showing the number of lobster
traps fished, including, but not limited to, state report cards,
license application forms, and catch reports; an approved Federal
Fishing Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-
176); and/or other forms of credible documentation; and
(C) A signed affidavit that certifies the number of individual
lobster traps the permit holder set, allowed to soak, hauled back, and
re-set in Area 5 at any one time during the qualifying year must be
submitted to the Regional Administrator for use in determining the
permitted vessel's lobster trap allocation. This affidavit must be
accompanied by credible, written documents that corroborate the number
of individual lobster traps claimed in the affidavit. Such documents
may include the types of documents identified in paragraph
(a)(7)(vii)(B) of this section. Documentation submitted to support the
affidavit may reflect activity during any point within the qualifying
year and does not necessarily need to represent the 2-consecutive month
period used in paragraph (a)(7)(vii)(B) of this section.
(viii) Participation requirements for EEZ Offshore Management Area
3. For fishing year 2002 and beyond, to fish for lobster with traps in
EEZ Offshore Management Area 3 (Area 3), a Federal lobster permit
holder must provide the following to the Regional Administrator within
[45 days after the date of publication of the final rule]:
(A) A copy of the vessel's current Federal lobster permit;
(B) Written documentation demonstrating that at least 200 lobster
traps were set, allowed to soak, hauled back, and re-set in Area 3
during a 2-consecutive calendar month period in any calendar year
(hereinafter, ``the qualifying year'') during the period from March 25,
1991, through September 1, 1999 (hereinafter, ``the qualification
period'') 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). Documentation may include copies of vessel logbooks; permit
applications; Federal Fishing Vessel Trip Reports (NOAA Form 88-30);
official state reporting documentation showing the number of lobster
traps fished, including, but not limited to, state report cards,
license application forms, and catch reports; an approved Federal
Fishing Vessel and Gear Damage Compensation Fund Report (NOAA Form 88-
176); and/or other forms of credible documentation that indicate that
at least 200 lobster traps were set, allowed to soak, hauled back, and
re-set in Area 3 during a 2-consecutive calendar month period in any
chosen qualifying year during the qualification period.
(C) Sales receipts or other documents pertaining to the sale of
lobsters and indicating the landing of at least 25,000 lb (11,340 kg)
of lobster from any location during the calendar year used as the
qualifying year from March 25, 1991, through September 1, 1999, to
qualify to fish for lobster with traps Area 3; and
(D) A signed affidavit to NMFS, certifying the total number of
individual lobster traps the permit holder set, allowed to soak, hauled
back, and re-set in Area 3 at any one time during the qualifying year.
This affidavit must be accompanied by the same or similar type of
documentation identified in paragraph (a)(7)(viii)(B). Documentation
submitted to support the affidavit may reflect activity during any
point within the qualifying year and does not necessarily need to
represent the 2-consecutive month period used in paragraph
(a)(7)(viii)(B) of this section.
(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 under this section
who also applies for a second or third lobster trap allocation among
Areas 3, 4, and 5, must use the same qualifying year for all areas, to
avoid a combined lobster trap allocation greater than the number of
lobster traps that the permit holder ever fished with any one vessel in
any one year.
(x) Notification of eligibility to fish for lobster with lobster
traps in 2002 in Areas 3, 4, and 5. (A) NMFS will attempt to notify all
owners of vessels for which NMFS has credible evidence available that
they meet some or all of the qualification criteria described in
paragraph (a)(7)(vi), (a)(7)(vii), or (a)(7)(viii) of this section and
that they may qualify for a limited access American lobster permit for
one or more of Areas 3, 4, and/or 5. Vessel owners must still provide
documentation indicating that the vessel meets the qualification
criteria for which NMFS lacks information, complete an affidavit
[[Page 294]]
certifying the total number of individual lobster traps the permit
holder set, allowed to soak, hauled back, and re-set in Areas 3, 4,
and/or 5 at any one time during the qualifying year, and apply for a
limited access lobster permit for Areas 3, 4, and/or 5 by April 30,
2002, to be considered for an Areas 3, 4, and/or 5 limited access
lobster permit. Consistent with paragraph (a)(7)(ix) of this section,
any Federal lobster permit holder applying for a lobster trap
allocation under this section who also applies for a second or third
lobster trap allocation among Areas 3, 4, and 5, must use the same
qualifying year for all areas to avoid a combined lobster trap
allocation greater than the number of lobster traps that the permit
holder ever fished with any one vessel in any one year. In addition,
Federal lobster permit holders who elect to fish in multiple lobster
conservation management areas are required under paragraph (a)(7)(iv)
of this section to abide by the most restrictive regulations of all
areas elected, regardless of which area the permit holder is fishing in
at any given time.
(B) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access American lobster permit for
Areas 3, 4, and/or 5, and the vessel owner believes that there is
credible evidence that the vessel does qualify under the listed
criteria, the vessel owner must apply for a limited access American
lobster permit for Areas 3, 4, and/or 5 by April 30, 2002, to fish for
lobster with traps in Areas 3, 4, and/or 5 after that date and submit
documentation substantiating that the vessel meets the area
qualification criteria as described in paragraphs (a)(7)(vi)(A) and
(B); (a)(7)(vii)(A) and (B); and (a)(7)(viii)(A) through (C) of this
section; and submit a signed affidavit certifying the total number of
lobster traps he/she set, allowed to soak, hauled back, and re-set in
Areas 3, 4, and/or 5 at any one time during the qualifying year as
described in paragraphs (a)(7)(vi)(C), (a)(7)(vii)(C), and
(a)(7)(viii)(D) of this section.
(xi) Appeal of denial of permit. (A) Any applicant denied a limited
access American lobster permit for Areas 3, 4, and/or 5, may appeal to
the Regional Administrator within 30 days of the date indicated on the
notice of denial. Any such appeal must be in writing. The only ground
for appeal is that the Regional Administrator erred in concluding that
the vessel did not meet the criteria in paragraph (a)(7)(vi), (vii),
and/or (viii) of this section. The appeal must set forth the basis for
the applicant's belief that the Regional Administrator's decision was
made in error.
(B) Appeal review. (1) The Regional Administrator will appoint a
designee who will make the initial decision on the appeal.
(2) The appellant may request a review by the Regional
Administrator of the initial decision on the appeal by so requesting
such a review in writing within 30 days of the date on the notice of
the initial decision on the appeal. The appellant may present his/her
objections to the initial decision on the appeal at a hearing before an
officer appointed by the Regional Administrator. The hearing officer
must make findings of fact and a recommendation to the Regional
Administrator. Upon receiving the findings and the recommendation, the
Regional Administrator must decide on the appeal, which will be the
final decision of the Department of Commerce. If the appellant does not
request a review of the initial decision on the appeal within 30 days
of the date on the notice of the initial decision on the appeal, then
the initial decision is the final administrative action of the
Department of Commerce.
(C) Status of vessels pending appeal. A vessel denied a limited
access American lobster permit for Areas 3, 4, and/or 5 may fish in
Areas 3, 4, and/or 5, provided that the denial has been appealed, the
appeal is pending, and the vessel has on board a letter from the
Regional Administrator authorizing the vessel to fish in the area for
which access is sought through the appeals process, unless otherwise
determined by the Regional Administrator. The Regional Administrator
will issue such a letter for the pendency of any appeal. This letter of
authorization would be the final administrative action of the
Department of Commerce pending a final decision on the appeal. While
the appeal is pending, the vessel may fish up to 800 lobster traps,
unless the vessel's Federal lobster permit has designated only Area 3
for lobster trap fishing, whereby, the vessel may fish up to 1,800
lobster traps in Area 3 only. If the appeal is finally denied, the
Regional Administrator must send a notice of final denial to the vessel
owner; the letter of authorization will become invalid 5 days after
receipt of the notice of denial or 15 days after the date it is sent,
whichever occurs first.
* * * * *
3. 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' W.
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.04.25' 70 deg.17.22'
N. W.
G2 42 deg.02.84' 70 deg.16.1'
N. W.
G3 42 deg.03.35' 70 deg.14.2'
N. W.
------------------------------------------------------------------------
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.
(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' W.
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.47.25'
N. W.
R 41 deg.18.5' 71 deg.54.5'
N. W.
------------------------------------------------------------------------
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.
* * * * *
(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.04.25' 70 deg.17.22'
N. W.
G2 42 deg.02.84' 70 deg.16.1'
N. W.
G4 41 deg.52' N. 70 deg.07.49'
W.
G5 41 deg.54.46' 70 deg.03.99'
N. W.
[[Page 295]]
From Point ``G5'' along the outer Cape Cod coast to point ``H''
H 41 deg.40' N. 70 deg.05' W.
H1 41 deg.18' N. 70 deg.05' W.
From Point ``H1'' along the eastern coast of Nantucket Island to Point
``I''
I 41 deg.15' N. 70 deg.00' W.
J 41 deg.21.5' 69 deg.16' W.
N.
From Point ``J'' Back to Point ``F.''
------------------------------------------------------------------------
* * * * *
4. 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 April 30, 2002, 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 May 1, 2002, 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 May 1, 2002, 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
more lobster traps in Area 4 than the number approved by the Regional
Administrator pursuant to Sec. 697.4 (a)(7)(vi), which will not exceed
1,440 lobster traps.
(4) Beginning May 1, 2002, 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
more lobster traps in Area 5 than the number approved by the Regional
Administrator pursuant to Sec. 697.4 (a)(7)(vii), which will not
exceed 1,440 lobster traps, 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 April 30, 2002, 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 May 1, 2002, for fishing years 2002, 2003, 2004,
2005, 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 than the number of lobster traps indicated in Table 1
for the appropriate fishing year with respect to the number of lobster
traps approved by the Regional Administrator under Sec.
697.4(a)(7)(vii) for each vessel. Area 3 lobster trap allocations for
the initial fishing year, beginning May 1, 2002, will not exceed 2,656
lobster traps.
Table 1. Area 3 Trap Reduction Schedule
----------------------------------------------------------------------------------------------------------------
Trap Allocation by Fishing Year*
---------------------------------------------------
2005 and
Number of Traps Approved by the Regional Administrator beyond
2002 2003 2004 until
changed
----------------------------------------------------------------------------------------------------------------
1200-1299 1200 1200 1200 1200
1300-1399 1200 1200 1200 1200
1400-1499 1290 1251 1213 1200
1500-1599 1388 1337 1297 1276
1600-1699 1467 1423 1380 1352
1700-1799 1548 1498 1452 1417
1800-1899 1628 1573 1523 1482
1900-1999 1705 1644 1589 1549
2000-2099 1782 1715 1654 1616
2100-2199 1856 1782 1715 1674
2200-2299 1930 1849 1776 1732
2300-2399 2003 1905 1836 1789
2400-2499 2076 1981 1896 1845
2500-2599 2197 2034 1952 1897
2600-2699 2218 2107 2008 1949
2700-2799 2288 2169 2063 2000
2800-2899 2357 2230 2117 2050
2900-2999 2425 2291 2171 2100
3000-3099 2493 2351 2225 2150
3100-3199 2575 2422 2288 2209
3200 2656 2493 2351 2267
----------------------------------------------------------------------------------------------------------------
* Trap allocations below 1,200 will not be subject to further reductions.
(3) For example, if a limited access Federal lobster permit holder
elects 1991 as the qualifying year, and is assigned a fishing effort
level of 2,323 lobster traps under Sec. 697.4(a)(7)(viii), then the
lobster trap allocation for that vessel would be 2,003 lobster traps
during fishing year 2002 and would decrease annually by incremental
reductions until reaching a lobster trap allocation of 1,789 lobster
traps in fishing year 2005. Thus, each lobster trap allocation of
greater than 1,200 lobster traps will be reduced on a sliding scale
over 4 years. The
[[Page 296]]
respective lobster trap reductions will not go below a baseline of
1,200 lobster traps. Each initial allocation in Area 3 of fewer than
1,200 lobster traps will remain at that allocation.
(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) Notwithstanding any other provision, lobster trap limits in New
Hampshire state waters. 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, as may be
authorized by New Hampshire lobster fishery regulations. However, such
vessel may not fish, possess, deploy, or haul back more than 800
lobster traps at any one time 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. When fishing in the Federal waters of
EEZ Nearshore Management Area 1, any vessel with a Federal lobster
permit may not possess, deploy, or haul back lobster traps in excess of
the maximum number of lobster traps specified at paragraph (a)(2) of
this section.
(e) 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.
(f) 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.
(g) 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.
5. In Sec. 697.25, paragraphs (b) and (c) are redesignated as
paragraphs (c) and (d), and new paragraph (b) is added to read as
follows:
Sec. 697.25 Adjustment to management measures.
* * * * *
(b) Conservation equivalency measures. A conservation equivalency
measure is defined as a measure adopted by a state that differs from
the specific requirements of the interstate fishery management plan,
but achieves the same quantified level of conservation for the resource
under management. Under this section, the Regional Administrator may
consider any future recommendations for modifications to Federal
regulations based on conservation equivalency that are formally
submitted to him/her in writing by the ASMFC and that 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.
* * * * *
[FR Doc. 02-142 Filed 1-2-02; 8:45 am]
BILLING CODE 3510-22-S