Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS amends the Federal American lobster (Homarus americanus) regulations to implement further minimum carapace length (gauge) increases, an escape vent size increase, and trap reductions in the offshore American lobster fishery, consistent with recommendations for Federal action made by the Atlantic States Marine Fisheries Commission (Commission) and in support of the Commission's Interstate Fishery Management Plan for American Lobster (ISFMP).

DATES:

Effective November 4, 2007.

ADDRESSES:

Copies of the American lobster Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this regulatory action are available upon request from Harold Mears, Director, State, Federal and Constituent Programs Office, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Peter Burns, Fishery Management Specialist, (978) 281-9144, fax (978) 281-9117, e-mail peter.burns@noaa.gov.

SUPPLEMENTARY INFORMATION:

Statutory Authority

These new regulations would modify Federal lobster conservation management measures in the Exclusive Economic Zone (EEZ) under the authority of section 804 of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) 16 U.S.C 5101 et seq., which states, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. The regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

Purpose and Need for Management

American lobsters are managed within the framework of the Commission. The Commission serves to develop fishery conservation and management strategies for certain coastal species and coordinates the efforts of the states and Federal Government toward concerted sustainable ends. The Commission, under the provisions of the Atlantic Coastal Act, decides upon a management strategy as a collective and then forwards that strategy to the states and Federal Government, along with a recommendation that the states and Federal Government take action (e.g., enact regulations) in furtherance of this strategy. The Federal Government is obligated by statute to support the Commission's overall efforts. Relevant to this action, the Commission's Lobster Board recommended that the Federal Government create regulations consistent with the measures set forth in the Commission's Lobster ISFMP as identified in Addenda II, III, and IV and XI to Amendment 3 of the ISFMP. As initially adopted, these addenda included management measures for several lobster conservation management areas (LCMAs/Areas) including Area 3, the Outer Cape Cod (Outer Cape) Area and Area 1. Specifically, these measures included an escape vent size increase for both Area 1 and the Outer Cape Area and a series of gauge increases for the Outer Cape Area in addition to the measures considered for Area 3. However, the Commission's American Lobster Management Board (Board), in May 2006, determined that only the Area 3 measures were required and repealed those specific to the Outer Cape Area and Area 1. Consequently, NMFS will implement regulatory measures in three general categories for LCMA 3: (1) Gauge size increases (recommended in Addenda II); (2) an escape vent size increase (recommended in Addendum IV) and a delay in the implementation of the escape vent size increase until 2010 (Addendum XI); and (3) trap reductions (recommended in Addendum IV and Addendum XI). These regulatory changes serve as the Federal Government's response to the Commission's requested action and are consistent with NMFS' resource objectives, legal mandates, and overall practical/managerial requirements. The management measures for the areas other than Area 3 associated with these addenda and recommended for Federal implementation by the Commission will be addressed in future and ongoing rulemakings.

The Area 3 broodstock and effort control measures relevant to this action directly address the concerns of the most recent stock assessment. The peer-reviewed lobster stock assessment in 2005 showed that the American lobster resource presents a mixed picture (see the Commission Stock Assessment Report No. 06-03, published January 2006 at www.asmfc.org.). One theme throughout the assessment was the high fishing effort and high mortality rates in all three stock areas. The assessment indicated that there is stable abundance for the Georges Bank (GBK) stock and much of the Gulf of Maine (GOM) stock and decreased abundance and recruitment, yet continued high fishing mortality rates, for the Southern New England (SNE) stock and in Statistical Area 514 (Massachusetts Bay and Stellwagen Bank) in the GOM stock. Of particular concern in the 2005 peer-reviewed stock assessment report is the SNE stock, where depleted stock abundance and recruitment coupled with high fishing mortality rates over the past few years led the stock assessment and peer review panel to recommend additional harvest restrictions. The SNE stock encompasses all of Areas 4, 5, and 6, and part of Areas 2 and 3. Overall, stock abundance in the GOM is relatively high with recent fishing mortality comparable to the past. The GOM stock encompasses all of Area 1, and part of both Area 3 and the Outer Cape Management Area. Currently, high lobster fishing effort levels in GOM continue in concert with high stock abundance, although high effort levels are not likely to be supportable if abundance returns to long-term median levels. The GBK stock seems stable, with current abundance and fishing mortality similar to the 20-year average. The GBK stock encompasses part of Areas 2, 3, and the Outer Cape Management Area. While the report noted the female proportion of the stock is increasing slightly, it also cautioned that further increases in effort are not advisable, hence, the need for additional effort reduction and broodstock protection.

Background

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

This current Federal rulemaking is one of three (3) Federal rulemakings that have their genesis, at least in part, in Commission Addenda II and III.

The first Addenda II - III rulemaking began with the publishing, in the Federal Register, of an advance notice of proposed rulemaking (“ANPR”) on May 24, 2001 (66 FR 28726), and ended with the publishing of a final rule on March 14, 2006 (71 FR 13027). This first rulemaking focused primarily on the broodstock protection measures set forth in the two addenda, and it was this similarity in purpose that resulted in NMFS combining the addenda recommendations into a single rulemaking. Addenda II and III, however, also contained additional management recommendations; most notably effort control measures and “if necessary” measures, so called because they would be considered only if determined necessary in later years. These separate measures became more prominent as the Commission issued later addenda, causing NMFS to start a second rulemaking involving Addenda II III in 2005.

The second Addenda II - III rulemaking actually focuses more on Commission Addenda IV - VII. This second rulemaking formally began with NMFS' publication of an ANPR in a Federal Register notice dated May 10, 2005 (70 FR 24495), and remains ongoing. Specifically, NMFS determined that the Addenda II - III effort control measures were modified substantively and revised by the Commission's Addenda IV, V, VI, and VII. Overall, measures proposed in those Addenda involve additional limited access programs for Area 2 and the Outer Cape LCMAs and proposals to transfer traps in LCMAs 2, 3 and the Outer Cape. As a result, NMFS will analyze the Addenda II - III effort control programs as a component of the larger more detailed second rulemaking associated with the effort control recommendations in Addenda IV VII. NMFS is still engaged in this second proposed rulemaking, and the Commission's effort control measures are still under analysis.

The third Addenda II - III rulemaking, which is represented in this final rule, also involves later Commission action, most notably Addendum XI. This third rulemaking formally began on December 13, 2005, with NMFS' publication of an ANPR in the Federal Register (70 FR 73717). The rulemaking initially focused on Addenda II III's so called “if necessary” measures because, although the measures were in Addenda II III at the time of the first Federal rulemaking, the Commission had not actually deemed them necessary until too late in the process for their inclusion in the March 26, 2006, final rule. Ultimately, the Commission modified the requirements of the ISFMP, voting on May 8, 2006 that the “if necessary” measures were, in fact, required only in LCMA 3, but not in the other LCMAs. The repealed measures include the additional escape vent size increase for LCMA 1 (2 inches X 5 3/4 inches (5.08-cm X 14.61-cm) rectangular or 2 5/8 inches (6.67 cm) circular by 2008); in the Outer Cape Cod LCMA, four additional 1/32-inch (0.08-cm) gauge increases up to 3 1/2 inches (8.89 cm) by July 2008 and an escape vent increase to 2 1/16 inches X 5 3/4 inches (5.24 cm X 14.61 cm) rectangular or 2 11/16 inch (6.82 cm) circular by 2008.

The Commission voted to approve draft Addendum XI for public comment on January 31, 2007, and the document was approved as part of the ISFMP in May 2007. The Addendum includes two additional 2.5-percent trap reductions for LCMA 3 and a delay in the implementation of the LCMA 3 escape vent size increase until 2010. NMFS incorporated the Addendum XI proposed measures in this third rulemaking in an ANPR filed in the Federal Register on December 18, 2006 (71 FR 75705), and in a subsequent proposed rule published in the Federal Register on June 20, 2007 (72 FR 33955) with the expectation that the Board would ultimately adopt the measures as part of the lobster management framework.

At present, most states have issued their complementary regulations; the Federal Government has not. Most Federal lobster permit holders also hold a state lobster license, and they must abide by the ISFMP measures by virtue of their state license, even if the same restrictions have not yet been placed on their Federal permit. Generally, the exception to state coverage of all ISFMP measures, under the Commission's ISFMP, is for states that are classified as de minimis states. The focus of the analysis of measures in this action is for Federal lobster permit holders from states that have not implemented all measures in the Commission's ISFMP, and, in the case of this rule, exceptions to coverage exist for Federal permit holders from Connecticut, New Jersey, and the de minimis states. Both the states of New Jersey and Connecticut voted to approve Addenda II and III and it is expected that those states will issue compatible regulations in the immediate future. Certain states at the southern end of the range qualify for de minimis status because a given state's declared annual landings, averaged over a two-year period, amount to less than 40,000 lb (18,144 kg) of American lobster. While de minimis states are required to promulgate all coastwide measures contained in Section 3.1 of Amendment 3, many of the area-specific measures for Area 3 identified in this action are not required to be implemented by the de minimis states. However, Federal lobster regulations apply to all entities fishing for lobster in Federal waters, including Federal permit holders in de minimis states.

Based on the impact analysis relative to this final rule, a negligible number of Federal trap and non-trap vessels would be impacted by adoption of these new measures. The impacts are concentrated on those few vessels hailing from Connecticut, New Jersey and the de minimis states. However, should Connecticut and New Jersey ultimately implement these measures as mandated by the Commission's ISFMP, as expected, the impacts will be reduced even further. Impacts in the de minimis states are also expected to be minimal; by definition, the lobster catch has to be small to even qualify for de minimis status and lobster catch is not a principle component of the overall fishery in those states. In addition, a number of Federal lobster permit holders may be impacted by the trap reductions scheduled for Area 3. Some Area 3 permit holders electing to fish for lobster with traps in a nearshore management area in addition to Area 3, may endure trap reductions in the nearshore areas since the Federal lobster regulations require that Federal lobster vessels be subject to the lowest trap limit of all areas that are designated on the vessel's Federal lobster permit. In other words, if a vessel's Area 3 trap allocation is reduced to a number that is less than the vessel's nearshore allocation, that vessel's trap limit in the nearshore area will be similarly reduced. Overall, adoption of these new management measures into the Federal regulations will facilitate the cooperative state and Federal enforcement of lobster regulations by reducing the regulatory gap between the states and NMFS.

Description of the Public Process

The actions set forth in this Final Rule have undergone extensive and open public notice, debate and discussion both at the Commission and Federal levels.

1. Commission Public Process

Typically, this public discussion of a potential Federal lobster action begins within the Commission process. Specifically, the Commission's Lobster Board often charges its Plan Development Team or Plan Review Team sub-committees of the Lobster Board - to investigate whether the existing ISFMP needs to be revised or amended to address a problem or need, often as identified in a lobster stock assessment. The Plan Review and Plan Development Teams are typically comprised of personnel from state and Federal agencies knowledgeable in scientific data, stock and fishery condition and fishery management issues. If a team or teams conclude that management action is warranted, it will so advise the Lobster Board, which would then likely charge the Lobster Conservation Management Teams (LCMTs) to develop a plan to address the problem or need. The LCMTs most often comprised of industry representatives will conduct a number of meetings open to the public wherein they will develop a plan or strategy, i.e., remedial measures, in response to the Lobster Board's request. The LCMTs then vote on the plan and report the results of their vote back to the Lobster Board. Minutes of the LCMT public meetings can be found at the Commission's website at http://www.asmfc.org under the “Minutes & Meetings Summary” page in the American Lobster sub-category of the Interstate Fishery Management heading.

After receiving an LCMT proposal, the Commission's Lobster Board will often attempt to seek specialized comment from both the Lobster Technical Committee and Lobster Advisory Panel before the proposal is formally brought before the Board. The Technical Committee is comprised of specialists, often scientists, whose role is to provide the Lobster Board with specific technical or scientific information. The Advisory Panel is a committee of individuals with particular knowledge and experience in the fishery, whose role is to provide the Lobster Board with comment and advice. Minutes of the Technical Committee and Advisory Panel can be found at the Commission's website at http://www.asmfc.org under the “Minutes & Meetings Summary” page in the American Lobster sub-category of the Interstate Fishery Management heading.

After receiving sub-committee advice, the Lobster Board will then debate the proposed measures in an open forum whenever the Board convenes (usually four times per year, one time in each of the spring, summer, fall and winter seasons). Meeting transcripts of the Lobster Board can be found at the Commission's website at http://www.asmfc.org under “Board Proceedings” on the “Minutes & Meetings Summary” page in the American Lobster sub-category of the Interstate Fishery Management heading. These meetings are typically scheduled months in advance and the public is invited to comment at every Board meeting. In the circumstance of an addendum, the Board will vote on potential measures to include in a draft addendum. Upon approving a draft addendum, the Lobster Board will conduct further public hearings on that draft addendum for any state that so requests. After conducting the public hearing, the Lobster Board will again convene to discuss the public comments, new information, and/or whatever additional matters are relevant. After the debate, which may or may not involve multiple Lobster Board meetings, additional public comment and/or requests for further input from the LCMTs, Technical Committee and Advisory Panel, the Lobster Board will vote to adopt the draft addendum, and if applicable, request that the Federal Government implement compatible regulations.

The actions set forth in the final rule have their genesis in Addenda II, III and IV, and XI. Relative to Addendum II, the Lobster Board instructed the Plan Review Team to offer input on the new stock assessment, including a strategy for Addendum II, in a public meeting dated June 6, 2000. In a public meeting dated August 23, 2000, the Board directed the PRT to develop Addendum II, which was to include proposals made by many of the already involved LCMTs. In November 2000, the Board held a further public meeting in which it voted to approve Addendum II as a draft for public comment. Public hearings were held in three states in January 2001. Finally, in a public hearing dated February 1, 2001, the Lobster Board heard the results of the January public hearings and formally voted to approve Addendum II.

Addendum III followed a similar process. After discussion at the LCMT level, the Lobster Board voted to draft Addendum III in a public meeting dated July 17, 2001. The Board then voted to approve Addendum III as a draft for public comment in a public meeting dated October 16, 2001. Public Hearings were held in seven states in November and December 2001. The Lobster Board was informed of the results of the state hearings in a public meeting dated February 2, 2002 at which time it voted to formally approve the Addendum III.

Addendum IV was the subject of multiple public meetings before the Lobster Board in 2002 and 2003. The Lobster Board approved Addendum IV as a draft for public comment in a public meeting dated August 28, 2003. Public hearings were held in seven states in October and November 2003. The Lobster Board was informed of the results of the states hearings in a public meeting dated December 17, 2003 at which time it voted to formally approve Addendum IV.

Addendum XI was released for public comment as a draft document in April 2007 and responded to the findings of the 2005 peer-reviewed stock assessment regarding the need for the development of management measures to address the depleted abundance, low recruitment and high fishing mortality rates in the SNE stock. Several states held public hearings on the draft addendum in April 2007 and the final addendum was approved by the Commission's Lobster Board in May 2007. In addition to a full suite of measures designed as the SNE Stock Rebuilding Program, the addendum, as it relates to this final rule, adopts the two additional Area 3 trap reductions of 2.5 percent, the Area 3 escape vent size increase, and the extension of the implementation of the escape vent increase to 2010.

2. Federal Public Process

Since the transfer of Federal lobster management in December 1999 from the Magnuson-Stevens Act, with its Federal Fishery Management Councils, to the Atlantic Coastal Act, with the Atlantic States Marine Fisheries Commission, Federal lobster action has typically been undertaken in response to a Commission action.

The development of this current rulemaking began in response to the Commission's approval of Addendum II in February 2001 and request for complimentary Federal regulations. Since that time, NMFS has filed numerous public notices in the Federal Register seeking public comment on the recommendations made by the Commission in Addenda II, III and IV and XI. The Federal filings and notices were specified in detail in the Background section of this document. The Commission and the New England and Mid-Atlantic Fishery Management Councils were also invited to comment on the proposed rule, consistent with past actions, in letters dated June 20, 2007. No new issues were brought forward that had not already been considered in the EA/RIR/IRFA for this action. NMFS received six comments to its proposed Federal action, which are summarized and set forth below.

Comments and Responses

The proposed rule for this regulatory action was published in the Federal Register on June 20, 2007 (72 FR 33955), and written public comments were solicited through August 6, 2007. In response to the request for public input, a total of six written comments were received.

Comment 1: Five of the six respondents indicated their support for all the measures selected in this action as identified in the preferred alternative of the proposed rule and as explained in the following section of this document entitled, “Regulatory Revisions Implemented by This Action.” Specifically, these five respondents expressed their support for the gauge increase up to 3 1/2 inches (8.89 cm) by 2008, the escape vent size increase to 2 1/16 inches X 5 3/4 inches rectangular (5.24 cm X 14.61 cm) or two circular vents at 2 11/16 inches diameter (6.82 cm) by July 1, 2010, and the full suite of trap reductions through 2010.

Response: NMFS believes that these measures will provide the best means of addressing the fishing effort and broodstock protection needs of the fishery as identified in the most recent stock assessment and will best complement the efforts of the Commission in implementation of the ISFMP in support of consistent state and Federal regulations in Area 3.

Comment 2: Three of the five commenters who wrote in support of the selected management measures also expressed their desire for NMFS to implement a trap transferability program for Area 3 as adopted into the Commission's ISFMP to allow eligible vessels to transfer portions of their lobster trap allocations, with a conservation tax included for each transaction to facilitate trap reductions in the Area 3 fishery.

Response: NMFS is currently analyzing alternatives in an ongoing rulemaking action that considers the Commission's recommendations to implement the industry-proposed trap transferability program for Area 3 and has chosen to not address that issue within the context of this final rule. An ANPR/Notice of Intent to prepare a draft environmental impact statement was published in the Federal Register on May 10, 2005 (70 FR 24495), wherein NMFS indicated that an analysis of the potential management alternatives associated with Area 3 trap transferability is underway. The pending rulemaking that analyzes trap transferability is discussed in greater detail earlier in this final rule section where it is referred to as the “second Addenda II - III rulemaking.”

Comment 3: One commenter who supports the selected action inquired why this action did not include the maximum gauge size for Area 3 recently adopted by the Commission.

Response: The Area 3 maximum size is outside the scope of this rulemaking. The Area 3 maximum size was only recently adopted by the Commission in May 2007 as a component of Addendum XI to Amendment 3 of the ISFMP, after the scope of this rulemaking and associated impact analysis were completed. NMFS will address the Area 3 maximum size in a future rulemaking and that will include opportunities for public comment.

Comment 4: One commenter does not support the concept of a minimum carapace length or escape vent for the management of the lobster fishery, although the commenter does support trap reductions as an effective means of reducing fishing effort. The commenter states that an increase in the minimum carapace length and escape vent size will reduce the efficiency of the lobster fleet by causing boats to retain fewer lobster in relation to the costs incurred to catch the lobster. The commenter suggests that the average size of landed lobster is too small due to an excessive removal rate of lobster by the fishing fleet. Therefore, a reduction in effort will reduce the removal rate and reduce the costs of harvesting lobster, while an increase in the minimum size and the escape vent will not reduce the costs of removing lobster.

Response: The commenter here suggests a paradigm shift in overall management theory wherein management would focus on input controls (e.g., trap numbers, limited entry) rather than output controls (gauge size, escape vent size requirements). The relative merit of such a theory is the subject of ongoing discussion within industry, academic and management circles. Resolution and/or consensus as to this theory's applicability to lobster management has not yet occurred. At present, the commenter's generally preferred approach has not been adopted by the Commission in its lobster ISFMP and is incongruent with, and might actually undermine, the Commission's present lobster management strategy. NMFS believes the commenter's approach is beyond the scope of the present action, although NMFS will continue to monitor, and as appropriate, participate in discussions on ways to improve management of the lobster resource. Comment 5: One commenter is opposed to a maximum lobster carapace length since such a measure will reduce the size of the exploitable stock in terms of its contribution to the yield from the resource.

Response: This action will not implement a maximum lobster carapace length in Area 3 or any other management area.

Changes From the Proposed Rule

The following minor changes were made to the regulatory text since the publication of the proposed rule.

Edit 1

The draft regulatory text in the proposed rule at § 697.19(b) Trap limits for vessels fishing or authorized to fish in the EEZ Offshore Management Area, indicated that the current trap limits in for Federal lobster trap vessels in Area 3 are effective until November 1, 2007. However, since the timing of publication of the final rule could not be predetermined at the time of drafting, and since the regulations filed in the final rule can not become effective until 30 days after publication of the final rule, the text was revised to explain that the current trap limits would remain in effect through the date that falls 29 days after publication of the final rule in the Federal Register.

Edit 2

Paragraph (2) of § 697.19(b) Trap limits for vessels fishing or authorized to fish in the EEZ Offshore Management Area, initially referenced November 1, 2007 as the effective date for the 2007 trap limits in Area 3 associated with this action. However, since the exact publication date of the final rule could not be foreseen upon drafting, and since the regulations filed in the final rule can not become effective for 30 days after publication, the regulatory text was revised in the final rule to indicate that the 2007 trap reductions will be effective on the date that falls 30 days after the date of publication of the final rule in the Federal Register.

Edit 3

Section 697.20(a)(5) Size, harvesting and landing requirements, was changed to indicate that the increase in the minimum carapace length to 3 15/32 inches (8.81 cm) for American lobster harvested in or from Area 3 is effective through June 30, 2008. Similarly, § 697.20(a)(6) was also changed to indicate that the minimum carapace length for all American lobsters landed, harvested or possessed by vessels issued a Federal limited access American lobster permit fishing in or electing to fish in EEZ Offshore Management Area 3 is 3 15/32 inches (8.81 cm), through June 30, 2008. As initially written, these two paragraphs did not reference a date upon which this measure would no longer be effective. Since this rule implements an additional gauge increase effective on July 1, 2008, as clearly stated later in the same section of the regulatory text, the reference was made to June 30, 2008 to more succinctly specify the dates though which the first of the two gauge increases will remain in effect.

Regulatory Revisions Implemented by This Action

This Federal lobster management action will implement the following specific management measures for LCMA 3 as described here.

Increase Minimum Carapace Length in Area 3

To protect lobster broodstock NMFS will implement two additional gauge increases, resulting in a 3 1/2-inch (8.89-cm) minimum gauge size requirement for LCMA 3 by July 1, 2008. Most states have already begun the four-year gauge increase schedule, beginning in 2005, as mandated by the ISFMP. To remain consistent with the ISFMP, the Federal lobster minimum carapace length in LCMA 3 will increase to 3 15/32 inches (8.81 cm) effective November 4, 2007. Effective July 1, 2008, the Federal lobster minimum carapace length in LCMA 3 will increase to 3 1/2 inches (8.89 cm). These measures are consistent with the gauge increases set forth in the ISFMP.

Increase Lobster Trap Escape Vent Size for Area 3 in 2010

Under this action, and consistent with the Commission's recommendations in Addendum XI, NMFS will increase the LCMA 3 escape vent size to 2 1/16 inches X 5 3/4 inches rectangular (5.24 cm X 14.61 cm) or two circular vents at 2 11/16 inches diameter (6.82 cm) by July 1, 2010.

Area 3 Lobster Trap Reductions Through 2010

By way of this rulemaking, NMFS will implement a suite of trap reductions in LCMA 3. First, Addendum IV to Amendment 3 of the ISFMP calls for a 10-percent trap reduction implemented over two consecutive years with a scheduled 5-percent reduction for 2007 and a 5-percent reduction in 2008. To address the need for further fishing mortality and fishing effort reductions in the offshore fishery as identified in the updated stock assessment released in 2005, the Board developed Addendum XI, that included consideration of an additional 5-percent reduction in traps in LCMA 3, to be implemented as a 2.5-percent reduction each year for two consecutive years following the initial 10-percent trap reduction specified in Addendum IV. The Commission voted to approve draft Addendum XI for public comment on January 31, 2007, and subsequently Addendum XI was approved by the Commission in May 2007, including the requirement for an additional 5-percent reduction in traps in LCMA 3. Table 1 illustrates the LCMA 3 gauge increases, escape vent size increases and the 10-percent trap reductions currently recommended in the ISFMP for Federal implementation. Also included in the table are the two additional 2.5-percent trap reductions for LCMA 3 just approved by the Board in May 2007.

Classification

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

This final rule does not contain policies with Federalism implications as that term is defined in E.O. 13132.

NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) as required by section 603 of the Regulatory Flexibility Act (RFA). The FRFA describes the economic impact this final rule will have on small entities. A description of the action, the reason for consideration, and its legal basis are contained in the Supplemental Information section of this final rule.

The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, the NMFS responses to those comments, and a summary of the analyses completed to support the action. The IRFA was summarized in the proposed rule (72 FR 33955, June 20, 2007) and is thus not repeated here. A copy of the IRFA, RIR, and the EA prepared for this action are available from the Northeast Regional Office (see ADDRESSES). A description of the action, it's reasons for consideration, and the legal basis for this action are contained in the SUMMARY section of the preamble and in the preamble to this final rule.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides”. The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office (see ADDRESSES), and the guide will be sent to all holders of permits for the American lobster fishery as part of a permit holder letter. The guide and this final rule will be available upon request.

Summary of the Significant Issues Raised by the Public Comments

A total of six written comments were received in response to the publication of the proposed rule for this action (72 FR 33955). No significant issues were raised about the IRFA or the economic effects of the rule in the public comments. A summary of the comments and Agency responses is provided in the preamble section of this document.

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

The selected action will have a potential effect on the 139 federally permitted vessels with an Area 3 trap allocation. This action will also have a potential effect on federally permitted vessels that elected to fish lobster using non-trap gear of which there were 1,105 in fishing year 2006. Gross sales for any one of these vessels would not exceed the small business size standard for commercial fishing of $4 million. Therefore, all 1,244 fishing businesses are considered small entities for purposes of the Regulatory Flexibility Act (RFA).

The selected action would only change regulations for trap and non-trap vessels fishing in Area 3; only vessels that actually fished or intend to fish in Area 3 would be effected. Available data indicate that 87 of the 139 vessels with an Area 3 trap allocation and 265 non-trap vessels actually landed lobster while fishing Area 3 for a total of 352 small entities (about 30 percent of the total number of potentially effected permit holders) that have demonstrated recent participation in the Area 3 lobster fishery.

The Commission has lead responsibility for managing lobster and developing a regulatory framework for implementation by the individual member states and making recommendations for complementary action by the Federal Government. Since nearly all permit holders must be licensed in a state and are bound by the most restrictive management measures no matter where they fish, Federal action will have added economic impact only in cases where the federal regulation is more restrictive than any given state regulation. This Federal action will either align Federal regulations with existing state regulations or anticipates highly probable state actions to be taken in the future.

Economic Impacts of the Selected Action

Minimum Size Increases

The ISFMP calls for a series of scheduled increases of 1/32 inch (0.08 cm) from 3 3/8 inches (8.57 cm) in Area 3 in 2004 to 3 1/2 inches (8.89 cm) by July 2008. These scheduled gauge increases have already been implemented by all states except for New Jersey, Connecticut and the de minimis states. Currently, the minimum Federal gauge size in Area 3 is 3 3/8 inches (8.57 cm). However, since the majority of lobster trap and non-trap vessels are licensed in states that have already implemented the ASMFC recommended size increases for Area 3, only 21 of the participating federally permitted trap and non-trap vessels are currently able to retain lobster at the lower Federal minimum gauge. This action will raise the gauge to 3 15/32 inches (8.81 cm) in 2007 and to 3 1/2 inches (8.89 cm) in July 2008. This schedule replicates what has already been implemented by most states and will affect the 21 participating Area 3 vessels that are currently licensed in states that have not implemented the recommended gauge size.

The economic impact on these vessels is uncertain but is expected to be low for the 6 affected trap vessels and even lower for the 15 affected non-trap vessels. That is, lobsters landed from Area 3 tend to be larger than lobsters landed elsewhere. For example, sea sampling data indicate that the minimum carapace length for 98 percent of non-trap lobster landings on observed trips was at least 3 1/2 inches (8.89 cm) in both 2004 and 2005. Assuming the size distribution of the trap gear catch is similar to that of non-trap gear the majority of lobster income by either trap or non-trap vessels will be unaffected by the increase in the Area 3 Federal gauge. However, non-trap vessel impacts are likely to be proportionally lower than that of the trap vessels because lobster comprises only a small percentage of total fishing income for non-trap vessels.

Escape Vent Size Increase

When the draft Environmental Assessment was conducted to evaluate the impacts of this action, the Commission had not yet adopted Addendum XI. However, although the preferred alternatives associated with the delay of the escape vent size increase and two additional 2.5-percent trap reductions were not yet incorporated into the ISFMP, the draft EA/RIR/IRFA did analyze these measures. At present, the NMFS final rule is consistent with the current ISFMP, as amended in May 2007 with the adoption of Addenda XI, and will delay implementation of increase in vent size to 2 1/16 x 5 3/4 inches (5.24 cm x 14.61 cm) rectangular or 2 11/16 inches (6.83 cm) circular until 2010 instead of 2008, as originally adopted by the Commission.

Delaying the escape vent size will have no effect on non-trap vessels but will provide some economic relief to any vessel that fished traps in Area 3. The larger escape vent size will allow any sub-legal and some legal sized lobsters to escape. Delaying the increase in escape vent size will theoretically allow for the retention of all legal-sized lobsters that enter the trap and provide some compensation for the change in the minimum gauge size since more legal-sized lobsters would be retained. Note that all vessels will still be required to bear the cost of replacing non-conforming escape vents but the two-year delay in implementation provides sufficient additional income to offset the cost of replacing escape vents. This measure will also maintain consistency between the state escape vent size requirements for Area 3 as dictated by the ISFMP, and Federal regulations.

Trap Reduction

This action will implement reductions in individual trap allocations of 5 percent in each of 2007 and in July 2008, and the two additional reductions in individual allocations; 2.5 percent in 2009 and another 2.5 percent in 2010, consistent with the trap reductions adopted by the Commission. Since the majority of states have already implemented the scheduled Area 3 trap reductions for 2007 and 2008 Federal action will not impose any added economic costs on the majority of participating Area 3 trap vessels. Federal action will affect an estimated 13 trap vessels from New Jersey and the de minimis states since these states have yet to enact the 5-percent Area 3 trap reductions for 2007 and 2008. Furthermore, the states of Connecticut and Rhode Island have adopted the first two 5-percent reductions but their respective regulations do not specify the two additional 2.5-percent reductions as adopted by the Commission in May 2007. With the exception of the de minimis states who are not required to implement the trap reductions, each state is expected to adopt the full suite of Area 3 trap reductions as required by the ISFMP. Should Connecticut and Rhode Island fail to implement these additional reductions, this Federal action will impact the 49 Federally-permitted lobster trap vessels hailing from these states that would otherwise be regulated by state-implemented reductions, in addition to the 13 vessels from New Jersey and the de minimis states that will be impacted if those states do not implement the two 5-percent reductions and the two 2.5-percent reductions. Therefore, between 3 (total vessels from the de minimis states) and 62 vessels may be impacted by this Federal action depending on the extent to which New Jersey, Connecticut and Rhode Island enact the trap reductions.

Regardless of whether states or the Federal Government implement trap reductions the economic impact on small entities is difficult to quantify with precision, but is expected to be minimal. Fishing strategy adaptation, such as tending traps more frequently and the decreased operating costs associated with fishing less traps, can often offset the economic impacts associated with reduced trap allocations. Therefore, the realized impact on landings and revenue is uncertain but is expected to be small. There may be differences in impact, however, among Area 3 participants that fish in other LCMAs if their Area 3 trap allocation falls below the number of traps they may be eligible to fish in another management areas. Specifically, due to the Federal definition of the most restrictive provision, any vessel with an Area 3 trap allocation which falls below the number of traps that may be fished by that vessel in another management area will be limited to the lowest area-specific trap allocation of all areas indicated for trap fishing on the vessel's federal permit. For example, a vessel eligible for 800 Area 3 traps, designating both Area 1 and Area 3 on the Federal permit, can fish a combined total of 800 traps in Area 1 and Area 3. In 2007, however, after the same vessel's Area 3 allocation declines to 760 traps under the trap reduction scenario associated with this action, the number of traps that can be fished in Area 1 will also be limited to 760 traps even though other Area 1 participants will be able to fish 800 traps.

The number of vessels impacted by this situation is contingent upon the areas designated on the Federal permit and the business practices employed by each small entity. It is also contingent upon the interpretation of the most restrictive rule as practiced by affected states. Consequently, some Area 3 participants in this situation, depending on their chosen course of action in defining their fishing practices, may endure reductions in nearshore trap allocations as a result of Area 3 trap reductions since their Area 3 allocations are below or will fall below their nearshore trap allocation. In consideration of these variables, this action may potentially impact the nearshore allocations of between 22 and 49 Federal lobster vessels over the four-year trap reduction period. This is a conservative estimate that includes all eligible Area 3 trap vessels that may potentially elect Area 3 and whose Area 3 trap allocations are below or will fall below their nearshore area allocation due to the Area 3 trap reductions. However, a more real-time estimate considers only the subset of vessels which actively designated Area 3 on the 2006 Federal permit, equating to between 22 and 26 vessels over the four-year trap reduction period.

Overall, this impact is not considered to be significant since it will only affect a small number of vessels and since reductions in the number of traps are not necessarily correlated with reductions in catch, especially considering the differences in how traps are fished with respect to depth, seasons, area, soak time and other factors. Small-scale trap reductions at this level may have some overall benefits by reducing the costs to a fishing operation associated with fishing time and bait and fuel costs. NMFS is presently analyzing its application of the most restrictive trap standard as part of a separate rulemaking.

List of Subjects in 50 CFR Part 697

• Fisheries
• Fishing

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

PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

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

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

2. In § 697.19, paragraph (b) is revised to read as follows:

3. In § 697.20, paragraphs (a)(3) through (a)(5) are revised and paragraph (a)(6) through (a)(9) are added to read as follows:

4. In § 697.21, paragraph (c) is revised to read as follows:

5. In part 697, Table 1 to part 697 is revised to read as follows: