[Federal Register Volume 59, Number 46 (Wednesday, March 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5314]
[[Page Unknown]]
[Federal Register: March 9, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 649
[Docket No. 940366-4066; I.D. 021494E]
RIN: 0648-AF39
American Lobster Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to implement the conservation
and management measures proposed in Amendment 5 to the Fishery
Management Plan for the American Lobster Fishery (FMP). Amendment 5 is
intended to eliminate or prevent overfishing of American lobsters
through adoption of a management program in the exclusive economic zone
(EEZ) with anticipated complementary management action in state waters
through state initiatives. This proposed rule would: Maintain the
current 3\1/4\-inch (8.26-cm) minimum carapace length, thus rescinding
the scheduled increases in the minimum size limit promulgated through
Amendment 2 to the FMP; establish a new data collection system through
a mandatory, uniform logbook; establish a 5-year limitation on issuance
of new Federal vessel permits; establish new permit requirements;
establish a framework process to develop a stock rebuilding program in
response to overfishing; and revise the definition of overfishing.
DATES: Comments on the proposed rule must be received on or before
April 18, 1994.
ADDRESSES: Comments on the proposed rule, Amendment 5, or its
supporting documents should be sent to Richard Roe, Director, Northeast
Region, National Marine Fisheries Service, 1 Blackburn Dr., Gloucester,
MA 01930. Mark the outside of the envelope ``Comments on American
Lobster Plan''.
Comments regarding the burden-hour estimates or any other aspect of
the collection-of-information requirements contained in this proposed
rule should be sent to the Director, Northeast Region, NMFS (address
listed above), and the Office of Management and Budget (OMB) (Attention
NOAA Desk Officer), Washington, DC 20503.
Copies of Amendment 5, its regulatory impact review (RIR), initial
regulatory flexibility analysis (IRFA), and the draft supplemental
environmental impact statement (DSEIS) are available from Douglas
Marshall, Executive Director, New England Fishery Management Council
(Council), Suntaug Office Park, 5 Broadway (U.S. Rte. 1), Saugus, MA
01906-1097. Copies of the Finance Handbook may be obtained from Mr.
Joseph Giza, Chief, Fiscal Policy and Quality Assurance Branch, NOAA
Financial Management Division, Caller Service No. 8025, 20020 Century
Boulevard, Germantown, Maryland 20874, telephone 301-443-8795.
FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,
508-281-9273.
SUPPLEMENTARY INFORMATION:
Background
The FMP was implemented on September 7, 1983. The FMP established a
minimum carapace length for American lobster taken from the EEZ of 3\3/
16\ inches (8.1 cm), effective January 1, 1985. Amendment 2 increased
the minimum carapace length to 3\5/16\ inches (8.41 cm) in four \1/32\-
inch (0.79-cm) increments, effective January 1, 1988, 1989, 1991, and
1992, respectively. Two of the four scheduled increments were
implemented. In 1991, the minimum carapace length was to increase to
3\9/32\ inches (8.33 cm). Due to major disruptions in the lobster
market, the states of Maine, Massachusetts, and Rhode Island decided
not to conform the minimum carapace length in their waters to the
scheduled EEZ minimum length. If the Federal carapace length had
increased in 1991, these state actions would have created enforcement
and management problems due to the inconsistency between the minimum
lengths for lobsters taken from state waters and those taken from EEZ
waters. Also, the Mitchell Amendment to the Magnuson Fishery
Conservation and Management Act (Magnuson Act) (16 U.S.C. 1857)
prohibited the shipment, transport, sale or purchase, in interstate or
foreign commerce, of any whole live lobster, regardless of where taken,
that is smaller than the minimum length for lobsters taken from the
EEZ. That amendment had the effect of banning the interstate transport
or export of lobsters, harvested legally in state waters, that are
smaller than the Federal minimum length for EEZ lobsters.
Amendment 4, implemented on December 27, 1991 (57 FR 214),
addressed the above problems by maintaining the minimum carapace size
for American lobster at 3\1/4\ inches (8.26 cm) through December 26,
1993, when it would increase to 3\9/32\ inches (8.33 cm). The intent of
the amendment was that the Council would develop a comprehensive
amendment during the 2-year period to replace the minimum-length
increases, provide consistent management of the American lobster
resource throughout its range, and reduce the risk of overfishing.
Amendment 4 required that if, prior to December 26, 1993, the Council
transmitted a comprehensive amendment, then NMFS would change the date,
by regulatory amendment, upon which the 3\9/32\-inch (8.33-cm) minimum
carapace length would become effective (December 27, 1993) to the 146th
day after the date on which the amendment was transmitted. On December
23, 1993, the Council submitted Amendment 5. As a result of this
action, on December 28, 1993, a final rule was published in the Federal
Register (58 FR 68555) that delayed increasing the minimum carapace
length to 3\9/32\ inches (8.33 cm) until May 18, 1994.
Amendment 4 also proposed a definition of overfishing, with a
preliminary indication that overfishing may be occurring in the
offshore stock. The most recent stock assessment of American lobster
has confirmed that the overall resource is in an overfished condition.
Amendment 5 to the FMP was prepared by the Council in consultation
with the Mid-Atlantic Fishery Management Council and the Atlantic
States Marine Fisheries Commission (ASMFC), under the provisions of the
Magnuson Act. At the December 7-8, 1993, Council meeting, the Council
voted to approve Amendment 5 for submission to NMFS. A notice of
availability inviting comments on a draft supplemental environmental
impact statement (DSEIS) for Amendment 5 was published in the Federal
Register February 4, 1994 (59 FR 5428). The public comment period for
the DSEIS will end on March 20, 1994.
Proposed Management Measures
Amendment 5 proposes to maintain the minimum carapace length in the
EEZ at the current size of 3\1/4\ inches (8.26 cm) to remain consistent
with the minimum carapace size for all the major lobster-producing
states from Maine through New York. This amendment also proposes to
change the management strategy for lobster by imposing a limitation on
the issuance of new federal lobster permits and, in year 2 of the
amendment, establishing a stock rebuilding program in four management
areas in the EEZ. The four management areas are: Gulf of Maine Inshore;
Southern New England Inshore; Middle Atlantic Inshore; and Offshore. In
response to public comment, the Council has determined that a seaward
boundary line of the Southern New England Inshore area, which is
contiguous with part of the Offshore area, should not be proposed until
the Effort Management Teams (EMTs) for these areas jointly consider the
issue and make a recommendation to the Council. Long Island Sound,
under the jurisdiction of the coastal states and not part of the EEZ,
is not specifically part of the Southern New England Inshore area.
However, since Amendment 5 was developed as a joint effort by the
Council and ASMFC, Long Island Sound might be established under ASMFC
regulations as a separate management area.
The Council has proposed a division of the lobster fleet into three
vessel permit categories and the immediate establishment of a quota for
all vessels that qualify under the permit limitations and operate any
gear other than lobster pots.
In addition, the Council is proposing that the minimum dimensions
of the lobster trap escape vent width size change from 6 inches (152.4
mm) to 5\3/4\ inches (146.1 mm) (consistent with the state of Maine
regulations). The current size requirements for lobster trap escape
vents (1\7/8\ inches by 6 inches (47.6 mm by 152.4 mm) for rectangular
vents and 2\3/8\ inches (60.3 mm) for circular vents) were intended to
provide the maximum escapement of sublegal lobsters consistent with
100% retention of legal lobsters. Most escape vents snap into or are
wired into the trap over an opening cut in the meshes. Others are
hinged on the bottom edge and fastened with degradable fasteners at the
top edge and serve as a ghost panel if the trap is lost. Regardless of
the panel design, the 6-inch (152.4-mm) width requirement requires
removal of four wires horizontally and either one wire or two
vertically, depending on whether the panel is also to serve as the
ghost panel. Industry representatives have stated that the removal of
the fourth wire weakens the trap unnecessarily while not significantly
affecting escapement of sublegal size lobsters. The Council's Plan
Development Team examined this issue and concluded that reducing the
escape vent width would not change the escapement/retention levels of
traps based on the criteria established in Amendment 3. This measure
will not entail any financial impacts since existing panels will meet
the new requirement and may continue to be used until they would
normally be replaced.
The American lobster resource would be considered recruitment
overfished when, throughout its range, the fishing mortality rate (F)
results in an estimated egg production per recruit of 10 percent or
less of the egg production of a non-fished population (F10%). The
estimated level of fishing mortality in the Gulf of Maine area for the
period 1989 to 1991 was F=0.65, and has been significantly increasing
at a rate of 5.5 percent per year since 1983. F10% is estimated to
be 0.52, indicating that fishing mortality rates need to be reduced 20
percent or more in the Gulf of Maine area to prevent overfishing. For
the Georges Bank and Offshore areas, the estimated level of fishing
mortality for the period 1989 to 1991 was between F=0.17 and F=0.36 and
has been declining since 1985. F10% is estimated to be 0.44,
indicating that this segment of the resource may not be overfished, but
is probably fully exploited. In the South Cape Cod/Long Island areas,
the estimated fishing mortality rates have been very high, ranging from
F=1.12 to F=1.59, without any significant trend for the period 1986 to
1991. F10% for these areas is estimated to be 0.68, indicating
that overfishing is occurring and that F needs to be reduced
approximately 50 percent to prevent overfishing. Since overfishing is
occurring in both the Gulf of Maine area and South Cape Cod/Long Island
areas, while the Georges Bank and Offshore areas are fully exploited, F
for the aggregated resource exceeds the overfishing level and the stock
is currently in an overfished condition.
Because the lobster resource has been determined to be overfished,
Amendment 5 includes a 5-year rebuilding program for the Gulf of Maine
segment of the resource and a 10-year rebuilding program for the
Southern New England inshore resource by reducing the fishing mortality
rate by 5 percent per year for both areas starting in year 2 of the
plan.
To achieve these reductions, Amendment 5 includes a stock
rebuilding program within each of the four management areas. This
rebuilding program would be developed during year 1 and could include
any of the framework measures specified under Sec. 649.44(d). These
measures could be applied to all segments of the harvesting sector
within each management area.
To determine which of these measures would be implemented in each
of the management areas, Amendment 5 would establish an Effort
Management Team (EMT) for each of the management areas. The EMTs would
be comprised of a core group of representatives from NMFS, the states,
and the Council, which would participate on all of the EMTs, and a
group of area-specific industry representatives that would participate
only on the EMT for their area. Each EMT would establish a stock
rebuilding program for its area and make recommendations to the Council
(through the Council's Lobster Committee), no later than 6 months
following the implementation of Amendment 5. The Council would then
initiate development of a stock rebuilding program for each area within
1 year of implementation of Amendment 5. This delay will provide the
opportunity for fishermen within each area to reach a consensus as to
which options listed in Sec. 649.44(d) should apply in their respective
management area.
Also in the amendment are new permitting requirements for vessel
operators and dealers, and mandatory reporting requirements for dealers
and vessel owners. The need for mandatory reporting has become
increasingly clear to NMFS, the Council, and the industry over the last
couple of years. As a result, the Mid-Atlantic and New England Councils
are now including standardized reporting requirements in all recent
amendments to FMPs.
The Council has proposed three limited access permit categories for
vessels engaged in the commercial lobster fishery, by gear type. To be
issued a limited access permit vessels would qualify based on the
following: Permits would be issued to vessels that held a valid Federal
American lobster permit and landed lobsters prior to March 25, 1991,
(date of publication of the control date) or to vessels or individuals
that held a Federally endorsed state permit and landed lobsters prior
to March 25, 1991. The Council has proposed that the moratorium be
limited to 5 years. The Council would conduct a formal review of the
effects of the moratorium during year 3 to determine whether this
action is consistent with the stock rebuilding program.
To accommodate the recreational fleet, the Council is proposing
that all party and charter boats engaged in the recreational fishery
for lobster in the EEZ, and divers on vessels for hire, be exempt from
the need to obtain a limited access permit provided that no lobsters
are sold and that no more than six lobsters per person on board the
vessel are landed or possessed.
Amendment 2 to the FMP contained a provision that allowed states
with lobster permits to enter into an agreement with NMFS, permitting
them to endorse an individual's state lobster permit for lobster
fishing in the EEZ. Vessel owners who obtained this endorsement from
the state did not have to get a Federal lobster permit to fish in the
EEZ. The Council, in Amendment 5, proposed a limited access permit
criterion that would allow any holder of a state license endorsed for
fishing in the EEZ that was obtained after the control date and has
been held continuously since 1991, to qualify for the limited access
permit, if the license holder can document lobster landings of at least
1,000 lbs (453.6 kg) in 1991 or 1992, and if the state issuing the
Federal endorsement has failed to notify applicants of the control
date. The Council reasoned that notification of the control date may
not have been consistent from state to state and that it was necessary
to accommodate vessel owners that may not have been notified by the
state. This measure was disapproved by NMFS on February 14, 1994, based
on national standard 4 of the Magnuson Act, which requires that
management measures not discriminate against residents of different
states. This proposal would allow a resident of one state, who entered
the fishery after the control date, to obtain a limited access permit
while the resident of another state in similar circumstances would be
excluded. The control date was published in the Federal Register and
also received wide publication in the commercial fishing press. Any
additional notification was supplementary to this notification.
First-Year Restrictions
The stock rebuilding measures to be proposed by the regional EMTs
would not be implemented until year 2 of this amendment. There is the
potential for significant increases in fishing mortality during the
first year through displaced effort from the multispecies and scallop
fisheries. Therefore, the Council has proposed limiting in the first
year of plan implementation the total catch of all vessels that qualify
under the moratorium and operate any gear other than lobster pots to
4.5 million lbs (2.04 million kg), which corresponds to 8 percent of
the total landings of lobsters in 1992. If the total catch by such
vessels reaches 6 percent of the 1992 catch level of 3.35 million lbs
(1.52 million kg) during the course of the year, then all vessels would
be limited to 100 lobsters, by count, per day or per trip, whichever is
longer, for the remainder of the year. The restriction would not apply
in year 2 because the framework process would be effective then.
Stock Rebuilding Program
The Council would initiate development of the Stock Rebuilding
Program by soliciting recommendations from the EMTs. With Council
approval of the recommended management measures, public hearings would
be held to receive comments on the proposed Stock Rebuilding Program.
After consultation with the Council and ASMFC, and upon their
recommendation, the Regional Director would promulgate appropriate
regulations to implement the Stock Rebuilding Program within 1 year
after the date of implementation of Amendment 5. The delay in the
starting date for the Stock Rebuilding Program of up to 1 year would
provide the opportunity for fishermen within each Management Area to
reach a consensus as to which of the options listed above should apply
in their respective Management Area.
The Council and ASMFC, through consultation with the ASMFC Lobster
Scientific Committee during the stock assessment process and with the
EMT, would continue to monitor the effectiveness of the Stock
Rebuilding Program and to ensure, to the extent possible, that regional
measures (within a Management Area) do not shift impacts from one
Management Area to another. The plan monitoring effort would also make
annual determinations whether the program is making adequate progress
in meeting the goal of eliminating any overfishing. If it is determined
that the initial specification of the Stock Rebuilding Program is
inadequate to meet the goal of the program, then the Council, in
consultation with ASMFC, would consider additional measures according
to the procedure outlined above. After Council action, with public
hearings, the Regional Director, in consultation with the Council and
ASMFC, would promulgate appropriate regulations as may be necessary to
modify the Stock Rebuilding Program.
Changes From Existing Regulations
For clarity and convenience of the public, 50 CFR part 649 would be
revised in its entirety as published in this proposed rule. Sections
649.1 and 649.3 would be revised only slightly from existing
regulations. More extensive revisions would be made to Secs. 649.2,
649.4, 649.8 (currently Sec. 649.6), 649.9 (currently Sec. 649.7),
649.20, and 649.21. Sections 649.5, 649.6, 649.7, 649.22, 649.23,
649.24, 649.25, 649.41, 649.42, 649.43, and 649.44 of this proposed
rule are either entirely new or incorporate portions of existing
regulations.
Classification
Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires
the Secretary to publish regulations proposed by the Council within 15
days of the receipt of a proposed amendment and proposed regulations.
At this time, the Secretary has not determined that the amendment these
rules would implement is consistent with the national standards, other
provisions of the Magnuson Act, and other applicable law. The
Secretary, in making that determination, will take into account the
information, views, and comments received during the comment period.
The Council prepared a DSEIS for Amendment 5 describing the
possible impacts on the environment as a result of this rule. A copy of
the DSEIS may be obtained from the Council (see ADDRESSES).
The Council prepared an initial regulatory flexibility analysis
(IRFA) that concludes that this proposed rule, if adopted, will not
have a significant impact on a substantial number of small entities.
The proposed measures would not result in a reduction of annual gross
revenues of more than 5 percent. Annual compliance costs are not
expected to increase total costs by more than 5 percent and are not
expected to be substantially higher for small, as compared to large,
business entities. They will not force more than 2 percent of small
business entities to cease business operations. A copy of the IRFA may
be obtained from the Council (see ADDRESSES).
This proposed rule contains three new collection-of-information
requirements and three revisions to existing requirements subject to
the Paperwork Reduction Act. A request to collect this information has
been submitted to the Office of Management and Budget (OMB) for
approval. The public's reporting burdens for these collection-of-
information requirements are indicated in the parentheses in the
following statements and include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection-of-information
requirements.
The new reporting requirements are: 1. Vessel logbooks, OMB
Approval No. 0648-0212, (5 min./response);
2. Dealer permits, OMB Approval No. 0648-0202, (5 min./response);
3. Operator permits, OMB Approval No. 0648-0202, (1 hour/response).
Revisions to the existing requirements are: 1. Dealer purchase
reports, OMB Approval No. 0648-0229, (2 min./response);
2. Vessel permits, appeal of denied permit, OMB Approval No. 0648-
0202, (3 hours/response);
3. Vessel permits, appeal of permit category, OMB Approval No.
0648-2020, (5 hours/response).
Send comments regarding these burden estimates or any other aspect
of these proposed collection-of-information requirements, including
suggestions for reducing the burdens, to Richard Roe, NMFS, and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (see ADDRESSES).
The effects of all fisheries on threatened and endangered species
were considered in an Endangered Species Act (ESA) consultation
conducted for the implementation of the Marine Mammal Exemption Program
in 1988. The resulting Biological Opinion (NMFS, 1988) found that
fisheries may affect, but are not likely to jeopardize, the continued
existence of any population of listed species. A formal consultation on
the lobster fishery and the management measures implemented by this
proposed rule is being conducted according to section 7 of the ESA. The
Biological Opinion concluding the consultation will be completed prior
to submission of the Final Supplemental Environmental Impact Statement
and final rule. The preliminary findings suggest that the lobster
fishery may affect endangered and threatened species, but is not likely
to jeopardize the continued existence of any listed populations.
Incidental takes of endangered and threatened whales and sea turtles
have been documented and are listed in the DSEIS. Most of the
documented takes have not resulted in mortalities. Management actions
implemented through the proposed rule, including mandatory reporting
through a uniform logbook, will improve monitoring capabilities and
effort estimates.
This rule is not subject to review under Executive Order 12866.
List of Subjects in 50 CFR Part 649
Fisheries, Reporting and recordkeeping requirements.
Dated: March 3, 1994.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 649 is
proposed to be revised to read as follows:
PART 649--AMERICAN LOBSTER FISHERY
Subpart A--General Provisions
Sec.
649.1 Purpose and scope.
649.2 Definitions.
649.3 Relation to other laws.
649.4 Vessel permits.
649.5 Operator permits.
649.6 Dealer permits.
649.7 Recordkeeping and reporting.
649.8 Vessel identification.
649.9 Prohibitions.
649.10 Facilitation of enforcement.
649.11 Penalties.
Subpart B--Management Measures
649.20 Minimum size and landing requirements.
649.21 Gear identification and marking, escape vent, and ghost
panel requirements.
649.22 Possession restrictions and target quota.
649.23 Transfer at sea.
649.24 Restrictions on trawl gear while in the trap fishery.
649.25 Experimental fishing exemption.
Subpart C--Stock Rebuilding Program and Framework Adjustments to
Management Measures
649.41 Purpose and scope.
649.42 Stock rebuilding program requirements and time frame.
649.43 First-year framework specifications.
649.44 Framework specifications after year 1.
Figures to Part 649
Figure 1--Standard Tetrahedral Corner Radar Reflector.
Figure 2--American Lobster Management Areas Established for the
Purposes of Regional Lobster Management.
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 649.1 Purpose and scope.
The purpose of this part is to implement the Fishery Management
Plan for the American Lobster Fishery (FMP), which was prepared and
adopted by the New England Fishery Management Council in consultation
with the Mid-Atlantic Fishery Management Council and the Atlantic
States Marine Fisheries Commission (ASMFC), and approved by the
Assistant Administrator for Fisheries, NOAA. Red crab fishing gear,
which is fished deeper than 200 fathoms (365.8 m), is gear not capable
of taking lobsters, and is not subject to the provisions of this part.
Sec. 649.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 620.2 of this chapter, the terms used in this part have the
following meanings:
American lobster or lobster means the species Homarus americanus.
Berried female means a female American lobster bearing eggs
attached to the abdominal appendages.
Carapace length is the straight line measurement from the rear of
the eye socket parallel to the center line of the carapace to the
posterior edge of the carapace. The carapace is the unsegmented body
shell of the American lobster.
Council means the New England Fishery Management Council.
Dealer means any person who receives American lobsters for a
commercial purpose from the owner or operator of a vessel, other than
exclusively for transport on land.
Dive vessel means any vessel carrying divers engaged in
recreational fishing for a per capita fee or a charter fee.
Effort Monitoring Team (EMT) means a group of technical experts
made up of representatives from the Council, NMFS, the appropriate
states, and an appointed group of American lobster industry
representatives, per management area, to each EMT.
Escape vent means an opening in a lobster trap designed to allow
lobster smaller than the legal minimum size to escape from the trap.
Fishery Management Plan (FMP) means the Fishery Management Plan for
American Lobsters, as amended.
Ghost panel means a panel, or other mechanism, designed to allow
for the escapement of lobster 12 months after a trap has been abandoned
or lost.
Gross registered tonnage means the gross registered tonnage
specified on the U.S. Coast Guard documentation for a vessel.
Land means to enter port with fish on board, to begin offloading
fish, or to offload fish.
Lobster Plan Development Team (PDT) means a team of technical
experts appointed by the Council.
Net tonnage means the net tonnage specified on the U.S. Coast Guard
documentation for a vessel.
Offload means to begin to remove, to remove, to pass over the rail,
or otherwise take away fish from any vessel.
Operator means the master or captain of the vessel, or other
individual on board the vessel, who is in charge of that vessel's
operations.
Party/charter boat means any vessel carrying recreational fishing
persons or parties for a per capita fee or for a charter fee.
Postmark means independently verifiable evidence of date of
mailing, such as U.S. Postal Service postmark, United Parcel Service
(U.P.S.) or other private carrier postmark, certified mail receipt,
overnight mail receipt, or receipt received upon hand delivery to an
authorized representative of NMFS.
Recreational fishing means fishing that is not intended to, nor
does it result in the barter, trade, or sale of fish.
Recreational fishing vessel means any vessel from which no fishing
other than recreational fishing is conducted. Charter and party boats
and dive boats are not considered recreational fishing vessels.
Regional Director means the Director, Northeast Region, NMFS, 1
Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
Reporting month means a period of time beginning at 0001 hours
local time on the first day of each calendar month and ending at 2400
hours local time on the last day of each calendar month.
Reporting week means a period of time beginning at 0001 hours local
time on Sunday; and ending at 2400 hours local time the following
Saturday.
Re-rig or re-rigged means physical alteration of the vessel or its
gear in order to transform the vessel into one capable of fishing
commercially for American lobsters.
Scrubbing is the forcible removal of eggs from a berried female
American lobster.
Sixth tail segment is that tail segment closest to the fan of an
American lobster's tail with the segment length measured along the
dorsal center line with the tail flexed.
Transfer means to begin to remove, to remove, to pass over the
rail, or otherwise take away fish from any vessel and move them to
another vessel.
Trawl means gear consisting of a net that is towed and is capable
of catching American lobsters, including Danish and Scottish seine
gear.
Trip is the period of time during which a fishing vessel is absent
from port, beginning when the vessel leaves port and ending when the
vessel returns to port.
Under agreement for construction means that the keel has been laid
and that there is a written agreement to construct a fishing vessel.
Vessel registered length means the registered length specified on
the U.S. Coast Guard documentation for a vessel or on the state
registration for a vessel not required to be documented under chapter
123 of title 46 U.S.C., if the state-registered length is verified by
an authorized officer.
V-notched American lobster means any American lobster bearing a V-
shaped notch in the right (underside of the lobster down and tail
toward the viewer) flipper next to the middle flipper or any female
American lobster that is mutilated in a manner that could hide or
obliterate such a mark.
V-shaped notch means a straight-sided triangular cut, without setal
hairs, as least 1/4 inch (0.64 cm) in depth and tapering to a point.
Whole American lobster means a lobster with an intact and
measurable body (tail and carapace). A whole American lobster may have
one or both claws missing.
Sec. 649.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter.
(b) Nothing in these regulations shall supersede more restrictive
state management measures for American lobsters.
Sec. 649.4 Vessel permits.
(a) Limited access American lobster permits. Any vessel of the
United States that fishes for, possesses, or lands American lobster, in
or harvested from the EEZ; except party, charter and dive boats that
possess six or fewer American lobsters per person aboard the vessel,
and recreational vessels and vessels that fish exclusively in state
waters for American lobsters; must have been issued and carry on board
a valid Federal limited access American lobster permit.
(1) Eligibility in 1994. (i) To be eligible to obtain a limited
access American lobster permit for 1994, a vessel must meet one of the
following criteria: (A) The vessel or vessel owner had been issued a
Federal American lobster permit, or a Federally endorsed state American
lobster permit and landed American lobsters prior to March 25, 1991; or
(B) The vessel was under written agreement for construction or for
re-rigging for directed American lobster fishing as of March 25, 1991,
and the vessel was issued a Federal American lobster permit and landed
American lobster prior to March 25, 1991; or
(C) The vessel is replacing a vessel that meets any of the criteria
set forth in paragraph (a)(1)(i)(A) or (a)(1)(i)(B) of this section.
(ii) No more than one vessel may qualify, at any one time, for a
limited access American lobster permit based on that or another
vessel's fishing and permit history. If more than one vessel owner
claims eligibility for a limited access American lobster permit, based
on one vessel's fishing and permit history, the Regional Director shall
determine who is entitled to qualify for the limited access American
lobster permit.
(iii) A limited access American lobster permit for 1994 will not be
issued unless an application for such permit is received by the
Regional Director on or before December 31, 1994.
(2) Eligibility in 1995 and thereafter. To be eligible to renew or
apply for a limited access American lobster permit after 1994, a vessel
must have been issued a limited access American lobster permit for the
preceding year, or the vessel must be replacing a vessel that had been
issued a limited access American lobster permit for the preceding year.
If more than one vessel owner claims eligibility to apply for a limited
access American lobster permit based on one vessel's fishing and permit
history after 1994, the Regional Director shall determine who is
entitled to qualify for the limited access American lobster permit.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the vessel
fishing and permit history for purposes of replacing the vessel.
(4) Notification of eligibility for a limited access permit.
(i) NMFS will attempt to notify all owners of vessels for which
NMFS has credible evidence that they meet the criteria in paragraph
(a)(1) of this section.
(ii) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access American lobster permit, and the
vessel owner believes that there is credible evidence that the vessel
does qualify under the pertinent criteria, the vessel owner may apply
for a limited access American lobster permit by submitting the
information described in paragraphs (a)(1) through (3) of this section.
In the event the application is denied, the applicant may appeal as
specified in paragraph (a)(6) of this section. If, through either of
these procedures, the Regional Director determines that the vessel
meets the eligibility criteria, a limited access American lobster
permit will be issued to the vessel.
(5) Permit categories. Each vessel issued a limited access American
lobster permit under the criteria specified in paragraph (a) of this
section shall be assigned to and must fish under one or more of the
three permit categories listed in paragraphs (a)(5) (i) through (iii)
of this section, whenever the vessel fishes for, possess, or lands
American lobster in or from the EEZ, based on the eligibility and
operating criteria specified below. Limited access American lobster
permits will indicate which category or categories the vessel may fish
under. A vessel assigned to Category A or B may also qualify for and
fish under Category C, if it meets the eligibility and operating
criteria specified.
(i) Category A vessel permit. A vessel that cannot document that it
landed at least 300 lbs (136.1 kg) of American lobster on at least one
trip prior to May 25, 1991, must have on board a valid Category A
permit at any time it possesses or lands American lobster harvested
with fishing gear other than lobster traps;
(ii) Category B vessel permit. A vessel that can document that it
landed at least 300 lbs (136.1 kg) of American lobster on at least one
trip prior to May 25, 1991, must have on board a valid Category B
permit at any time it possesses or lands American lobster harvested
with fishing gear other than lobster traps;
(iii) Category C vessel permit. A vessel must have on board a valid
Category C permit at any time it possesses or lands American lobster
harvested exclusively with lobster traps. A vessel fishing under this
category may have fishing gear other than lobster traps on board the
vessel, if such gear is disabled and not available for immediate use
for the entire fishing trip as specified in Sec. 649.24.
(6) Appeal of denial of limited access American lobster permit or
of permit category assignment. (i) Any applicant denied a limited
access American lobster permit or any applicant who believes he/she is
assigned to an incorrect American lobster permit category, may appeal
the denial to the Regional Director within 30 days of the notice of
denial. Any such appeal must be based on one or more of the following
grounds, must be in writing, and must state the grounds for the appeal:
(A) The information used by the Regional Director was based on mistaken
or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make
the initial decision on the appeal.
(iii) The appellant may request a review of the initial decision by
the Regional Director by so requesting in writing within 30 days of the
notice of initial decision. If the appellant does not request a review
of the initial decision within 30 days, the initial decision shall
become the final administrative action of the Department of Commerce.
(iv) Recommendations to the Regional Director by a hearing officer.
A hearing officer shall be appointed by the Regional Director to review
the initial decision. The hearing officer shall make findings and a
recommendation to the Regional Director, which shall be advisory only.
(v) Upon receiving the findings and a recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(b) Condition. Vessel owners who apply for a permit under this
section must agree as a condition of the permit that the vessel and
vessel's fishing, catch, and pertinent gear (without regard to whether
such fishing occurs in the EEZ or landward of the EEZ, and without
regard to where such fish or gear are possessed, taken, or landed), are
subject to all requirements of this part. The vessel and all such
fishing, catch, and gear shall remain subject to all applicable State
or local requirements. If a requirement of this part and a management
measure required by State or local law differ, any vessel owner
permitted to fish in the EEZ must comply with the more restrictive
requirement.
(c) Vessel permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from the Regional Director. The application must be signed by
the owner of the vessel, or the owner's authorized representative, and
be submitted to the Regional Director at least 30 days before the date
on which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section. Applicants for limited access
American lobster permits who have not been notified of eligibility by
the Regional Director shall provide information with the application
sufficient for the Regional Director to determine whether the vessel
meets the eligibility requirements specified under paragraph (a)(1) of
this section. Acceptable forms of proof include, but are not limited
to, state weigh-out records, packout forms, and settlement sheets.
(d) Information requirements. In addition to applicable information
required to be provided by paragraph (c) of this section, an
application for a limited access American lobster permit must contain
at least the following information, and any other information required
by the Regional Director: Vessel name; owner name, mailing address, and
telephone number; U.S. Coast Guard documentation number and a copy of
vessel's U.S. Coast Guard documentation or, if undocumented, state
registration number and a copy of the state registration; home port and
principal port of landing; length; gross tonnage; net tonnage; engine
horsepower; year the vessel was built; type of construction; type of
propulsion; approximate fish-hold capacity; type of fishing gear used
by the vessel; permit category; if the owner is a corporation, a copy
of the Certificate of Incorporation; and the names and addresses of all
shareholders owning 25 percent or more of the corporation's shares; if
the owner is a partnership, a copy of the Partnership Agreement and the
names and addresses of all partners; if there is more than one owner,
names of all owners having more than a 25 percent interest; and name
and signature of the owner or the owner's authorized representative.
(e) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee shall be calculated in accordance with the
procedures of the NOAA Finance Handbook for determining administrative
costs of each special product or service. The fee may not exceed such
costs and is specified with each application form. The appropriate fee
must accompany each application; if it does not, the application will
be considered incomplete for purposes of paragraph (f)(1) of this
section.
(f) Issuance. (1) Except as provided in subpart D of 15 CFR part
904 and under paragraph (a)(6) of this section, the Regional Director
shall issue a Federal American lobster vessel permit within 30 days of
receipt of the application unless: (i) The applicant has failed to
submit a completed application. An application is complete when all
requested forms, information, documentation, and fees, if applicable,
have been received and the applicant has submitted all applicable
reports specified at Sec. 649.7; or
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraph (a)(1)(iii) of this section; or
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraphs (a)(1) and (2) of this
section; or
(iv) The applicant has failed to meet any other application
requirements stated in this part.
(2) Upon receipt of an incomplete or improperly executed
application, the Regional Director shall notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. A Federal American lobster permit must be renewed
annually, and unless renewed will expire upon the renewal date
specified in the permit.
(h) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or until it otherwise expires, or
ownership changes, or the applicant has failed to report any change in
the information on the permit application to the Regional Director as
specified in paragraph (k) of this section.
(i) Replacement. Replacement permits, for an otherwise valid
permit, may be issued by the Regional Director when requested in
writing by the owner or authorized representative, stating the need for
replacement, the name of the vessel, and the Federal Fisheries Permit
number assigned. An application for a replacement permit will not be
considered a new application. An appropriate fee may be charged for
issuance of the replacement permit.
(j) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the vessel and owner to whom
it is issued.
(k) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written notice of the change must be submitted to the
Regional Director. If the written notice of the change in information
is not received by the Regional Director within 15 days, the permit is
void.
(l) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(n) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
(o) Limited access American lobster permit renewal. To renew or
apply for a limited access American lobster permit in 1995 and
thereafter, a completed application must be received by the Regional
Director by December 31 of the year before the permit is needed. For
example, to receive a limited access American lobster permit for 1996,
vessel owners must apply by December 31, 1995. Failure to renew a
limited access American lobster permit in any year bars the renewal of
the permit in subsequent years.
(p) Abandonment or voluntary relinquishment of limited access
American lobster permits. If a vessel's limited access American lobster
permit is voluntarily relinquished to the Regional Director, or
abandoned through failure to renew or otherwise, no limited access
American lobster permit may be re-issued or renewed based on that
vessel's history or to any vessel relying on that vessel's history.
Sec. 649.5 Operator permits.
(a) General. Any operator of a vessel issued a Federal limited
access American lobster permit under Sec. 649.4, or any operator of a
vessel fishing for, in possession of, or landing American lobsters in
or from the EEZ; except party, charter, and dive boats that possess on
board six or fewer American lobsters per person aboard the vessel,
recreational vessels, and vessels that fish exclusively in state waters
for American lobsters; must carry on board a valid operator's permit
issued under this part.
(b) Operator application. Applicants for a permit under this
section must submit a completed permit application on an appropriate
form obtained from the Regional Director. The application must be
signed by the applicant and submitted to the Regional Director at least
30 days prior to the date on which the applicant desires to have the
permit made effective. The Regional Director will notify the applicant
of any deficiency in the application, pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree as a condition of this permit that the
operator and vessel's fishing, catch, crew size, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ, and without regard to where such fish or gear are
possessed, taken, or landed), are subject to all requirements of this
part while fishing in the EEZ or on board a vessel permitted under
Sec. 649.4. The vessel and all such fishing, catch, and gear will
remain subject to all applicable state or local requirements. Further,
such operators must agree as a condition of this permit that if the
permit is suspended or revoked pursuant to 15 CFR part 904, the
operator cannot be on board any fishing vessel issued a Federal
Fisheries Permit or any vessel subject to Federal fishing regulations
while the vessel is at sea or engaged in offloading. If a requirement
of this part and a management measure required by state or local law
differ, any operator issued a permit under this part must comply with
the more restrictive requirement.
(d) Information requirements. An applicant must provide at least
all the following information and any other information required by the
Regional Director: Name, mailing address, and telephone number; date of
birth; hair color; eye color; height; weight; social security number
(optional) and signature of the applicant. The applicant must also
provide two color passport- size photographs.
(e) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Financial Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (f) of this section.
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director shall issue an operator's permit within 30 days
of receipt of a completed application if the criteria specified herein
are met. Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. A Federal operator permit must be renewed annually,
and unless renewed will expire upon the renewal date specified in the
permit.
(h) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Director as specified in paragraph (k) of
this section.
(i) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal operator
permit number assigned. An applicant for a replacement permit must also
provide two color passport size photos of the applicant. An application
for a replacement permit will not be considered a new application. An
appropriate fee may be charged.
(j) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom it is
issued.
(k) Change in application information. Notice of a change in the
permit holder's name, address, or telephone number must be submitted in
writing to, and received by, the Regional Director within 15 days of
the change in information. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(l) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be on board a Federally permitted fishing vessel in any
capacity while the vessel is at sea or engaged in offloading.
Procedures governing enforcement related permit sanctions and denials
are found at subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
Sec. 649.6 Dealer permits.
(a) All dealers must have been issued and have in their possession
a valid permit issued under this part.
(b) Dealer application. Applicants for a permit under this section
must submit a completed application on an appropriate form provided by
the Regional Director. The application must be signed by the applicant
and submitted to the Regional Director at least 30 days before the date
upon which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section.
(c) Information requirements. Applications must contain at least
the following information and any other information required by the
Regional Director: Company name, place(s) of business, mailing
address(es) and telephone number(s); owner's name; dealer permit number
(if a renewal); and name and signature of the person responsible for
the truth and accuracy of the report. If the dealer is a corporation, a
copy of the certificate of incorporation must be included with the
application. If a partnership, a copy of the Partnership Agreement and
the names and addresses of all partners must be included with the
application.
(d) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (e) of this section.
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director will issue a permit at any time during the
fishing year to an applicant unless the applicant has failed to submit
a completed application. An application is complete when all requested
forms, information, and documentation have been received and the
applicant has submitted all applicable reports specified in
Sec. 649.7(a). Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(f) Expiration. A Federal dealer permit must be renewed annually,
and unless renewed will expire upon the renewal date specified in the
permit.
(g) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or ownership
changes, or the applicant has failed to report any change in the
information on the permit application to the Regional Director as
required by paragraph (j) of this section.
(h) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal dealer
permit number assigned. An application for a replacement permit will
not be considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person, or other business
entity, to which it is issued.
(j) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written report of the change must be submitted to, and
received by, the Regional Director. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(k) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(l) Display. Any permit, or a valid duplicate thereof, issued under
this part must be maintained in legible condition and displayed for
inspection upon request by any authorized officer.
(m) Federal versus state requirements. If a requirement of this
part differs from a fisheries management measure required by state law,
any dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
Sec. 649.7 Recordkeeping and reporting.
(a) Dealers--(1) Weekly report. Dealers must send a report of
lobster purchases by mail to the Regional Director, or official
designee, on a weekly basis, on forms supplied by or approved by the
Regional Director. If authorized in writing by the Regional Director,
dealers may submit reports electronically or through other media. The
following information, and any other information required by the
Regional Director, must be provided: Name and mailing address of
dealer; dealer number; name and permit number of the vessels from which
lobsters are landed or received; dates of purchases; pounds; price; and
port landed. If no lobsters are purchased during the week, a report so
stating must be submitted.
(2) Inspection. Upon request by an authorized officer, or by an
employee of NMFS designated by the Regional Director to make such
inspections, the dealer must make immediately available for inspection
copies of the required reports that have been submitted, or should have
been submitted, and the records upon which the reports were based.
(3) Record retention. Copies of reports, and records upon which the
reports were based, must be retained and available for review for 1
year after the date of the last entry on the report. The dealer shall
retain such reports and records at its principal place of business.
(4) Submitting reports. Reports must be received or postmarked, if
mailed, within 3 days after the end of each reporting week. Each dealer
will be sent forms and instructions, including the address to which to
submit reports, shortly after receipt of a dealer permit. If no
lobsters are purchased during a week, a report so stating must be
submitted.
(b) Vessel owners--(1) Fishing log reports. The owner of any vessel
holding a Federal American lobster permit under Sec. 649.4 shall
maintain, on board the vessel, and submit an accurate daily fishing log
report for all fishing trips regardless of species fished for or taken,
on forms supplied by or approved by the Regional Director. At least the
following information, and any other information required by the
Regional Director, must be provided: Vessel name; U.S. Coast Guard
(USCG) documentation number (or state registration number if
undocumented); permit number; date/time sailed; date/time landed; trip
type; number of crew; gear fished; quantity and size of gear; mesh/ring
size; chart area fished; average depth; latitude/longitude (or loran
station and bearings); total hauls per area fished; average tow time
duration; pounds, by species of all species landed and discarded;
dealer permit number; dealer name; date sold; port and state landed;
and vessel operator's name, signature, and operator permit number.
(2) When to fill in the log. Such log reports must be filled in,
except for information required but not yet ascertainable, before
offloading has begun. At the end of a fishing trip all information in
paragraph (b)(1) of this section must be filled in for each fishing
trip before starting the next fishing trip.
(3) Inspection. Owners and operators shall, immediately upon
request, make the fishing log reports currently in use or to be
submitted available for inspection by an authorized officer, or an
employee of the NMFS designated by the Regional Director to make such
inspections, at any time during or after a trip.
(4) Record retention. Copies of fishing log reports must be
retained and available for review for 1 year after the date of the last
entry on the report.
(5) Submitting reports. Fishing log reports must be received or
postmarked, if mailed, within 15 days after the end of each reporting
month. Each owner will be sent forms and instructions, including the
address to which to submit reports, shortly after receipt of a Federal
Fisheries Permit. If no fishing trip is made during a month, a report
so stating must be submitted.
Sec. 649.8 Vessel identification.
(a) Vessel name. Each fishing vessel subject to this part and that
is over 25 ft (7.6 m) in length must display its name on the port and
starboard sides of its bow and, if possible, on its stern.
(b) Official number. Each fishing vessel subject to this part that
is over 25 ft (7.6 m) in length must display its official number on the
port and starboard sides of its deckhouse or hull, and on an
appropriate weather deck, so as to be visible from above by enforcement
vessels and aircraft. The official number is the U.S. Coast Guard
documentation number or the vessel's state registration number for
vessels not required to be documented under chapter 123 of title 46
U.S.C.
(c) Numerals. The official number must be permanently affixed in
contrasting block Arabic numerals at least 18 inches (45.7 cm) in
height for vessels over 65 ft (19.8 m), and at least 10 inches (25.4
cm) in height for all other vessels over 25 ft (7.6 m) in length.
(d) Duties of owner and operator. The owner and operator of each
vessel subject to this part shall: (1) Keep the vessel name and
official number clearly legible and in good repair; and
(2) Ensure that no part of the vessel, its rigging, its fishing
gear, or any other object obstructs the view of the official number
from an enforcement vessel or aircraft.
Sec. 649.9 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a limited access American lobster permit under Sec. 649.4
to do any of the following: (1) Retain on board, land, or possess at or
after landing, American lobsters that fails to meet the carapace length
standard specified in Sec. 649.20(b). All American lobsters will be
subject to inspection and enforcement, up to and including the time
when a dealer receives or possesses American lobsters for a commercial
purpose.
(2) Retain on board, land or possess any American lobster or parts
thereof in violation of the mutilation standards specified in
Sec. 649.20(c).
(3) Retain on board, possess, or land any berried female American
lobster specified in Sec. 649.20(d).
(4) Remove eggs from any berried female American lobster, or to
possess or land any such lobster from which eggs have been removed.
(5) Retain on board, land or possess any V-notched female American
lobsters throughout the range of the stock.
(6) Possess, deploy, haul, harvest lobster from, or carry aboard a
vessel any gear not identified, marked, vented, and panelled in
accordance with the requirements specified in Sec. 649.21.
(7) Fail to comply in an accurate and timely fashion with the log
report, reporting, record retention, inspection, and other requirements
of Sec. 649.7(b).
(8) Fish for, possess, or land American lobsters unless the
operator of the vessel has been issued an operator's permit under
Sec. 649.5, and the permit is on board the vessel and is valid.
(9) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application as
required under Sec. 649.4(k) or Sec. 649.5(k).
(10) Make any false statement in connection with an application
under Sec. 649.4 or Sec. 649.5.
(11) Fail to affix and maintain permanent markings as required by
Sec. 649.8.
(12) Sell, transfer, or barter or attempt to sell, transfer, or
barter to a dealer any American lobsters unless the dealer has a valid
Federal Dealer's Permit issued under Sec. 649.6.
(13) Land, offload, remove, or otherwise transfer; or attempt to
land, offload, remove, or otherwise transfer American lobsters or fish
from one vessel to another vessel.
(b) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel with a Category A American lobster permit as described under
Sec. 649.4(a)(5)(i) to do any of the following: (1) Land or possess on
board the vessel more than the possession limit specified in
Sec. 649.22.
(2) Land or possess on board the vessel more than 100 American
lobsters in any one calendar day.
(c) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel with a Category B American lobster permit as described under
Sec. 649.4(a)(5)(ii), to land, or possess on board the vessel, American
lobsters in excess of the Category B possession limit established
according to the publication of an interim final rule in accordance
with the process under Sec. 649.22(c).
(d) In addition to the prohibitions specified in paragraphs (a),
(b), and (c) of this section, it is unlawful for any person owning or
operating a vessel that has not been issued a limited access American
lobster permit as described under Sec. 649.4(a), to do any of the
following: (1) Possess on board a vessel or land American lobsters
harvested in or from the EEZ unless the vessel is a party/charter or
dive boat and there are six or fewer American lobsters per person on
such boats and the lobsters are not sold, traded or bartered.
(2) [Reserved]
(e) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a), (b)
and (c) of this section, it is unlawful for any person to do any of the
following: (1) Possess on board a vessel or land American lobsters
unless: (i) The American lobsters were harvested by a vessel that has
been issued and carries on board a valid limited access American
lobster permit under Sec. 649.4; or
(ii) The American lobsters were harvested by a vessel without a
Federal American lobster permit and that fishes for American lobsters
exclusively in state waters; or
(iii) The American lobsters were harvested by a party/charter or
dive vessel that possesses six or fewer American lobsters not intended
for trade, barter or sale per person aboard the vessel.
(2) Sell, barter or trade, or otherwise transfer, or attempt to
sell, barter or trade, or otherwise transfer, for a commercial purpose,
any American lobsters from a vessel unless the vessel has been issued a
valid Federal limited access American lobster permit under Sec. 649.4,
or the American lobsters were harvested by a vessel without a Federal
American lobster permit that fishes for American lobsters exclusively
in state waters;
(3) Land, offload, cause to be offloaded, sell, or transfer, or
attempt to land, offload, cause to be offloaded, sell or transfer
American lobsters from a fishing vessel issued a Federal limited access
American lobster permit, whether on land or at sea, as an owner or
operator, without accurately preparing and submitting, in a timely
fashion, the documents required by Sec. 649.7.
(4) Land, offload, cause to be offloaded, sell, or transfer, or
attempt to land, offload, cause to be offloaded, sell or transfer;
American lobsters harvested in or from the EEZ whether on land or at
sea, as an owner or operator, without accurately preparing and
submitting, in a timely fashion, the documents required by Sec. 649.7,
unless American lobsters were harvested by a party/charter or dive
vessel that possesses six or fewer, per person aboard the vessel,
American lobsters not intended for sale, trade, or barter.
(5) Purchase or receive American lobsters, or attempt to purchase
or receive American lobsters, whether on land or at sea, as a dealer
without accurately preparing, submitting and retaining, in a timely
fashion, the documents required by Sec. 649.7;
(6) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer, American lobsters from one
vessel to another unless the American lobsters were harvested by a
vessel without a Federal American lobster permit and that fishes for
American lobsters exclusively in state waters;
(7) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, as,
or in the capacity of, a dealer, American lobsters taken from a fishing
vessel, unless in possession of a valid dealer's permit issued under
Sec. 649.6;
(8) Purchase, possess, or receive for commercial purposes, or
attempt to purchase or receive for commercial purposes, American
lobsters caught by a vessel other than one issued a valid Federal
limited access American lobster permit under Sec. 649.4, unless the
American lobsters were harvested by a vessel without a Federal American
lobster permit and that fishes for American lobsters exclusively in
state waters;
(9) Purchase, possess or receive for commercial purpose from a
vessel or attempt to purchase, possess or receive for commercial
purposes, American lobsters from a vessel in excess of any possession
or landing limit applicable to such vessel under Sec. 649.22.
(10) To be, or act as, an operator of a vessel fishing for or
possessing American lobsters in or from the EEZ, or issued a Federal
American lobster permit under Sec. 649.4, without having been issued
and possessing a valid operator's permit issued under Sec. 649.5.
(11) Assault, resist, oppose, impede, harass, intimidate, or
interfere with either a NMFS-approved observer aboard a vessel, or an
authorized officer conducting any search, inspection, investigation, or
seizure in connection with enforcement of this part;
(12) Make any false statement, oral or written, to an authorized
officer, concerning the taking, catching, harvesting, landing,
purchase, sale, or transfer of any American lobsters;
(13) Make any false statement on any report required to be
submitted or maintained under Sec. 649.7; or
(14) Violate any provision of this part, the Magnuson Act, or any
regulation, permit, or notification issued under the Magnuson Act or
these regulations.
(15) Possess or land any American lobsters harvested in or from the
EEZ in violation of Sec. 649.20.
(f) Any person possessing, or landing American lobsters at or prior
to the time when those American lobsters are landed, or are received or
possessed by a dealer, is subject to all of the prohibitions specified
in paragraphs (a), (b) and (c) of this section, unless the American
lobsters were harvested by a vessel without a Federal American lobster
permit and that fishes for American lobsters exclusively in state
waters or are from a party/charter or dive vessel that possesses or
possessed six or fewer American lobsters per person aboard the vessel
and the lobsters are not intended for sale, trade, or barter.
(g) Presumption. American lobsters that are possessed, or landed at
or prior to the time when the American lobsters are received by a
dealer, or American lobsters that are possessed by a dealer, are
presumed to be harvested from the EEZ. A preponderance of all submitted
evidence that such American lobsters were harvested by a vessel without
a Federal American lobster permit and fishing exclusively for American
lobsters in state waters will be sufficient to rebut the presumption.
(h) The possession of egg-bearing female American lobsters, V-
notched female American lobsters, or American lobsters that are smaller
than the minimum size set forth in Sec. 649.20(b), will be prima facie
evidence that such American lobsters were taken or imported in
violation of these regulations. Evidence that such American lobsters
were harvested by a vessel not holding a permit under this part and
fishing exclusively within state or foreign waters will be sufficient
to rebut the presumption.
Sec. 649.10 Facilitation of enforcement.
See Sec. 620.8 of this chapter.
Sec. 649.11 Penalties.
See Sec. 620.9 of this chapter.
Subpart B--Management Measures
Sec. 649.20 Minimum size and landing requirements.
(a) Condition. By being issued a Federal limited access American
lobster permit, the vessel owner is subject to all measures in this
subpart regardless of where American lobsters were harvested.
(b) Carapace length. (1) The minimum carapace length for all
American lobsters harvested in or from the EEZ is 3\1/4\ inches (8.26
cm).
(2) The minimum carapace length for all American lobsters landed,
harvested, or possessed at or after landing by vessels issued a Federal
American lobster permit, is 3\1/4\ inches (8.26 cm).
(c) Mutilation. (1) It is unlawful for any person to remove meat or
any body appendage from any American lobster harvested in or from the
EEZ before landing, or to have in possession on board any American
lobster part other than whole lobsters.
(2) It is unlawful for any owner, operator or person aboard a
vessel issued a Federal American lobster permit to remove meat or any
body appendage from any American lobster before landing, or to have in
possession on board any American lobster part other than whole
lobsters.
(d) Berried females. (1) Any berried female American lobster
harvested in or from the EEZ must be returned to the sea immediately.
(2) Any berried female American lobster harvested or possessed by a
vessel issued a Federal American lobster permit must be returned to the
sea immediately.
(e) Scrubbing. (1) No person may remove extruded eggs attached to
the abdominal appendages from any female American lobster harvested on
or from the EEZ.
(2) No owner, operator or person aboard a vessel issued a Federal
American lobster permit may remove extruded eggs attached to the
abdominal appendages from any female American lobster.
Sec. 649.21 Gear identification and marking, escape vent, and ghost
panel requirements.
(a) Identification. All lobster gear deployed in the EEZ or
possessed by a person whose vessel is permitted for fishing in the EEZ,
and not permanently attached to the vessel, must be legibly and
indelibly marked with one of the following codes of identification: (1)
A number assigned by the Regional Director; and/or
(2) Whatever positive identification marking is required by the
vessel's home-port state.
(b) Marking. In the areas of the EEZ described in paragraph (b)(4)
of this section, lobster pot trawls are to be marked as follows: (1)
Lobster pot trawls of three or fewer pots must be marked with a single
buoy.
(2) Lobster pot trawls consisting of more than three pots must have
a radar reflector and a single flag or pennant on the westernmost end
(marking the half compass circle from magnetic south through west to
and including north), while the easternmost end (meaning the half
compass circle from magnetic north through east to and including south)
of an American lobster trawl must be marked with a radar reflector
only. Standard tetrahedral corner radar reflectors (see Figure 1 of
this part) of at least 8 inches (20.32 cm) (both in height and width
and made from metal) must be employed.
(3) No American lobster pot trawl shall exceed 1.5 nautical miles
(2.78 km) in length as measured from buoy to buoy.
(4) Gear marking requirements apply in the following areas: (i)
Gulf of Maine gear area. All waters of the EEZ north of 42 deg.20' N.
latitude seaward of a line drawn 12 nautical miles (22.2 km) from the
baseline of the territorial sea;
(ii) Georges Bank Gear Area. All waters of the EEZ south of
42 deg.20' N. latitude and east of 70 deg.00' W. longitude or the outer
boundary of the territorial sea, whichever lies farther east;
(iii) Southern New England Gear Area. All waters of the EEZ west of
70 deg.00' W. longitude, east of 71 deg.30' W. longitude at a depth
greater than 25 fathoms (45.72 m); and
(iv) Mid-Atlantic Gear Area. All waters of the EEZ, west of
71 deg.30' W. longitude and north of 36 deg.33' N. latitude at a depth
greater than 40 fathoms (73.15 m).
(c) Escape vents. All American lobster traps deployed in the EEZ or
possessed by a person whose vessel is permitted for fishing in the EEZ,
as specified under Sec. 649.4, must be constructed to include one of
the following escape vents in the parlor section of the trap. The vent
must be located in such a manner that it would not be blocked or
obstructed by any portion of the trap, associated gear, or the sea
floor in normal use.
(1) The specifications for escape vents are as follows:
(i) A rectangular portal with an unobstructed opening not less than
1\7/8\ inches (4.76 cm) by 5\3/4\ inches (14.61 cm);
(ii) Two circular portals with unobstructed openings not less than
2\3/8\ inches (6.03 cm) in diameter.
(2) The Regional Director may, at the request of, or after
consultation with, the Lobster Oversight Committee of the Council,
approve, and publish in the Federal Register any other type of
acceptable escape vent that the Regional Director finds to be
consistent with paragraphs (c)(1) (i) and (ii) of this section.
(d) Ghost panel. Lobster traps not constructed entirely of wood
must contain a ghost panel.
(1) The specifications of this requirement are as follows:
(i) The opening to be covered by the ghost panel must be
rectangular and shall not be less than 3\3/4\ inches (9.53 cm) by 3\3/
4\ inches (9.53 cm).
(ii) The panel must be constructed of, or fastened to the trap
with, one of the following untreated materials: Wood lath, cotton,
hemp, sisal or jute twine not greater than \3/16\ inch (0.48 cm) in
diameter, or non-stainless, uncoated ferrous metal not greater than \3/
32\ inch (0.24 cm) in diameter.
(iii) The door of the trap may serve as the ghost panel if fastened
with a material specified in paragraph (d)(1)(ii) of this section.
(iv) The ghost panel must be located in the outer parlor(s) of the
trap and not the bottom of the trap.
(2) The Regional Director may, at the request of, or after
consultation with, the Lobster Oversight Committee of the Council,
approve, and publish in the Federal Register, any other design,
mechanism, material, or specification not described in the regulations
in this part that serves to create an escape portal not less than 3\3/
4\ inches (9.53 cm) by 3\3/4\ inches (9.53 cm).
(e) Enforcement action. Unidentified, unmarked, unvented, or
improperly vented American lobster traps will be seized and disposed of
in accordance with the provisions of part 219 of this title.
Sec. 649.22 Possession restrictions and target quota.
(a) Owners or operators of vessels not issued a Federal American
lobster permit, except party, charter, and dive boats that possess six
or fewer American lobsters per person aboard the vessel, recreational
vessels, and vessels fishing for American lobsters exclusively in state
waters, are prohibited from possessing on a vessel or landing American
lobsters harvested in or from the EEZ. Owners or operators of vessels
not issued Federal American lobster permits are prohibited from
selling, bartering, or trading or attempting to sell, trade, or barter
American lobsters harvested by the vessel in or from the EEZ.
(b) Owners or operators of vessels with a Category A American
lobster limited access permit, as specified under Sec. 649.4, are
prohibited from possessing or landing more than 100 American lobsters,
by count, per trip, regardless of length, or per calendar day if more
than one trip is made in a calendar day, while fishing with or
harvested by gear other than lobster traps.
(c) In 1994, when the Regional Director determines that the
commercial landings of American lobster by owners or operators of
vessels with Category A and B American lobster limited access permits
using gear other than lobster traps, as specified under Sec. 649.4,
will exceed 3.35 million lbs (1.52 million kg) (75 percent of the
target quota) he/she shall implement the following vessel landing quota
as an interim final rule: All vessels issued Federal American lobster
permits shall be prohibited from possessing or landing more than 100
American lobsters, by count, per trip, regardless of length, or per
calendar day if more than one trip is made in a calendar day, while
fishing with or harvested by gear other than American lobster traps.
Sec. 649.23 Transfer at sea.
(a) Owners or operators of vessels permitted under Sec. 649.4 are
prohibited from transferring or attempting to transfer fish from one
vessel to another vessel.
(b) All persons are prohibited from transferring or attempting to
transfer American lobsters harvested in or from the EEZ from one vessel
to another vessel.
Sec. 649.24 Restrictions on trawl gear while in the trap fishery.
(a) To possess or land American lobster as a Category C vessel, to
possess any gear other than American lobster traps, including but not
limited to trawl gear, that is capable of catching American lobsters
and is aboard the vessel, such gear must be disabled so that it is
incapable of catching American lobsters. Nets or gear other than
lobster traps that conform to one of the following specifications and
that can be shown not to have been in recent use and not available for
immediate use is considered to be disabled:
(1) Gear stowed below deck, provided:
(i) It is located below the main working deck from which the gear
is deployed and retrieved;
(ii) The towing wires, including the ``leg'' wires, are detached
from the gear, if trawl gear;
(iii) It is fan-folded (flaked) and bound around its circumference
if it is trawl gear.
(2) Gear stowed and lashed down on deck, provided: (i) It is fan-
folded (flaked) and bound around its circumference if trawl gear;
(ii) It is securely fastened to the deck or rail of the vessel; and
(iii) The towing wires, including the leg wires, are detached from
the net, if trawl gear.
(3) A net or other gear that is on a reel and is covered and
secured, provided: (i) The entire surface of the gear is covered with
canvas or other similar material that is securely bound;
(ii) The towing wires, including the leg wires, are detached from
the net, if trawl gear; and
(iii) The codend is removed from the net and stored below deck, if
trawl gear.
(4) Nets or other gear that are secured in a manner authorized in
writing by the Regional Director.
Sec. 649.25 Experimental fishing exemption.
(a) The Regional Director may exempt any person or vessel from the
requirements of this part for the conduct of experimental fishing
beneficial to the management of the American lobster resource or
fishery.
(b) The Regional Director may not grant such exemption unless it is
determined that the purpose, design, and administration of the
exemption is consistent with the objectives of the FMP, the provisions
of the Magnuson Act, and other applicable law, and that granting the
exemption will not: (1) Have a detrimental effect on the American
lobster resource and fishery; or
(2) Create significant enforcement problems.
(c) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of this part, except those
necessarily relating to the purpose and nature of the exemption. The
exemption will be specified in a letter issued by the Regional Director
to each vessel participating in the exempted activity. This letter must
be carried aboard the vessel seeking the benefit of such exemption.
Subpart C--Stock Rebuilding Program and Framework Adjustments to
Management Measures
Sec. 649.41 Purpose and scope.
The purpose of this subpart is to specify the requirements and
framework procedures for implementing the Stock Rebuilding Program,
intended to eliminate overfishing in any resource areas.
Sec. 649.42 Stock rebuilding program requirements and time frame.
(a) General. (1) The Council shall have 1 year from [insert
effective date of the final rule] to submit management measures to
achieve the objectives of the FMP. The measures must be designed to
achieve the FMP objectives for reducing fishing mortality in 5 years
for the stock in the Gulf of Maine segment of the fishery and 10 years
for the Southern New England segment of the stock. Such measures may be
submitted through the Magnuson Act amendment process or through the
first-year area management framework specifications in Sec. 649.44.
(2) In developing such management measures the Council shall submit
management measures to reduce fishing mortality in each of four
management areas specified in paragraph (b) of this section. These
management measures shall be implemented according to the first-year
area management framework specifications in Sec. 649.43.
(3) If the Council has not submitted management measures sufficient
to achieve the objectives of the FMP on or before [insert date 1 year
from effective date of the final rule], the Secretary shall determine,
according to provisions of 16 U.S.C. 1854(c), whether to prepare an
amendment to the FMP.
(b) Management areas. The Stock Rebuilding Program to be submitted
by the Council shall be developed based on the status of stock of
American lobsters and management considerations for each of the areas
described and defined in this paragraph (b).
(1) Area 1. Near-shore EEZ Waters of the Gulf of Maine. This area
is defined by the area bounded by straight lines (rhumb lines)
connecting the following points in the order stated and the territorial
sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
A........................... 44 deg.04' N. 67 deg.19' W. and northward
along the irregular U.S.-
Canada Maritime Boundary
to the territorial sea.
B........................... 43 deg.03' N. 70 deg.00' W.
C........................... 42 deg.14' N. 70 deg.00' W.
D........................... 42 deg.08' N. 69 deg.55' W.
E........................... 42 deg.06' N. 70 deg.04' W.
------------------------------------------------------------------------
(2) Area 2. Near-shore EEZ Waters of Southern New England. This
area is defined by the area bounded by straight lines (rhumb lines)
connecting the following points in the order stated and the territorial
sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
E........................... 42 deg.06' N. 70 deg.04' W.
D........................... 42 deg.08' N. 69 deg.55' W.
F........................... 41 deg.10' N. 69 deg.06' W.
G........................... 40 deg.46' N. 71 deg.34' W.
H........................... 41 deg.06' N. 71 deg.43' W.
------------------------------------------------------------------------
(3) Area 3. EEZ Offshore Waters. This area is defined by the area
bounded by straight lines (rhumb lines) connecting the following points
in the order stated and westerly of the U.S.-Canada Maritime Boundary:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
A........................... 44 deg.04' N. 67 deg.19' W. and northward
along the irregular U.S.-
Canada Maritime Boundary
to the territorial sea.
B........................... 43 deg.03' N. 70 deg.00' W.
C........................... 42 deg.14' N. 70 deg.00' W.
D........................... 42 deg.08' N. 69 deg.55' W.
F........................... 41 deg.10' N. 69 deg.06' W.
G........................... 40 deg.46' N. 71 deg.34' W.
J........................... 40 deg.13' N. 72 deg.44' W.
K........................... 38 deg.39' N. 73 deg.24' W.
L........................... 38 deg.12' N. 73 deg.55' W.
M........................... 37 deg.12' N. 74 deg.44' W.
N........................... 35 deg.41' N. 75 deg.10' W.
O........................... 35 deg.15' N. 75 deg.28' W.
------------------------------------------------------------------------
(4) Area 4. Near-shore Waters of the Middle Atlantic. This area is
defined by the area bounded by straight lines (rhumb lines) connecting
the following points in the order stated and the territorial sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
I........................... 41 deg.05' N. 71 deg.49' W.
H........................... 41 deg.06' N. 71 deg.43' W.
G........................... 40 deg.46' N. 71 deg.34' W.
J........................... 40 deg.13' N. 72 deg.44' W.
K........................... 38 deg.39' N. 73 deg.24' W.
L........................... 38 deg.12' N. 73 deg.55' W.
M........................... 37 deg.12' N. 74 deg.44' W.
N........................... 35 deg.41' N. 75 deg.10' W.
O........................... 35 deg.15' N. 75 deg.28' W.
------------------------------------------------------------------------
(c) Effort Management Teams (EMT). (1) The Council shall establish
EMTs for each area specified in paragraph (b) of this section for the
purpose of making recommendations to the Council on management measures
to achieve the objectives of the FMP.
(2) Members of each EMT shall be appointed by the Council, in
consultation with appropriate states and NMFS. Members of the EMT shall
consist of a group of technical representatives that serve on each EMT
and a group of representatives from the lobster industry, based on
their geographical affiliation with an EMT. The Council may decide the
number of representatives and operating procedures of the EMTs.
(3) No later than [insert date 6 months from effective date of
final rule], each EMT shall report its recommendations for management
measures for the stock rebuilding program for the area it represents to
the Council.
Sec. 649.43 First year framework specifications.
(a) On or before [insert date 6 months from effective date of final
rule], each EMT shall submit its recommendations for management
measures for the area it represents to the Council.
(b) After receiving the recommendations of the EMTs, the Council
shall determine what management measures are necessary for each
management area in order to achieve the objectives of stock rebuilding
specified in the FMP. For the management measures the Council
determines are necessary to meet FMP objectives, the Council shall
provide appropriate rationale and economic and biological analysis of
the determinations. The Council shall make these determinations over
the span of at least two Council meetings and provide the public with
advance notice of and opportunity to comment on the determinations and
the analyses before making final recommendations to be submitted to
NMFS. The Council's recommendation on necessary management measures
must come from one or more of the following categories:
(1) Minimum-size changes;
(2) A maximum-size limit;
(3) Trap limits;
(4) Seasonal closures of one or more management areas;
(5) Closed areas or zones within a management area;
(6) Restrictions on allowable fishing time;
(7) Restrictions on allowable catches;
(8) Permitting restrictions;
(9) Additional restrictions on gear;
(10) Overfishing definition;
(11) Any other management measures currently included in the FMP.
(c) After developing necessary management measures and receiving
public testimony, the Council shall make a recommendation to the
Regional Director on or before [insert date 1 year from effective date
of final rule]. The Council's recommendation must include supporting
rationale and, if management measures are recommended, an analysis of
impacts, and a recommendation to the Regional Director on whether to
publish the management measures as a final rule. If the Council
recommends that the management measures should be published as a final
rule, the Council must consider at least the following factors and
provide support and analysis for each factor considered: (1) Whether
the availability of data on which the recommended management measures
are based allows for adequate time to publish a proposed rule, and
whether regulations have to be in place for an entire harvest/fishing
season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource; and
(4) Whether there will be a continuing evaluation of management
measures adopted following their promulgation as a final rule.
(d) If the Council's recommendation includes adjustments or
additions to management measures, and if, after reviewing the Council's
recommendation and supporting information: (1) The Regional Director
concurs with the Council's recommended management measures and
determines that the recommended management measures may be published as
a final rule based on the factors specified in paragraph (c) of this
section, the action will be published in the Federal Register as a
final rule; or
(2) The Regional Director concurs with the Council's recommendation
and determines that the recommended management measures should be
published first as a proposed rule, the action will be published as a
proposed rule in the Federal Register. After additional public comment,
if the Regional Director concurs with the Council recommendation, the
action will be published as a final rule in the Federal Register; or
(3) The Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(e) Nothing in this section is meant to diminish the authority of
the Secretary to take emergency action under section 305(e) of the
Magnuson Act.
Sec. 649.44 Framework specifications after year 1.
(a) Annually, upon request from the Council, the Regional Director
will provide the Council with information of the status of the American
lobster resource, based on the most recent stock assessment report.
(b) The Council and ASMFC, through consultation with the ASMFC
Lobster Scientific Committee within the stock assessment process and
with the EMT, shall continue to monitor the effectiveness of the Stock
Rebuilding Program and to ensure, to the extent possible, that regional
measures (within a Management Area) do not shift costs from one
Management Area to another.
(c) In addition, the Council's Plan Development Team (PDT) for
American lobster shall make a determination whether other resource
conservation issues exist that require a management response in order
to meet the goals and objectives outlined in the FMP. The PDT shall
report its findings and recommendations to the Council. In its report
to the Council, the PDT shall provide the appropriate rationale and
economic and biological analysis for its recommendation, utilizing the
most current catch, effort, and other relevant data from the fishery.
(d) After receiving the PDT findings and recommendations, the
Council shall determine whether adjustments to, or additional,
management measures are necessary to meet the goals and objectives of
the FMP. After considering the PDT's findings and EMT recommendations,
or at any other time, if the Council determines that adjustments to, or
additional, management measures are necessary, it shall develop and
analyze appropriate management actions over the span of at least two
Council meetings. The Council shall provide the public with advance
notice of the availability of both the proposals and the analyses, and
opportunity to comment on them prior to and at the second Council
meeting. The Council's recommendation on adjustments or additions to
management measures must come from one or more of the following
categories:
(1) Minimum-size changes;
(2) A maximum-size limit;
(3) Trap limits;
(4) Seasonal closures of one or more management areas;
(5) Closed areas or zones within a management area;
(6) Restrictions on allowable fishing time;
(7) Restrictions on allowable catches;
(8) Permitting restrictions;
(9) Additional restrictions on gear;
(10) Overfishing definition;
(11) Any other management measures currently included in the FMP.
(e) After developing management actions and receiving public
testimony, the Council shall make a recommendation to the Regional
Director. The Council's recommendation must include supporting
rationale and, if management measures are recommended, an analysis of
impacts, and a recommendation to the Regional Director on whether to
publish the management measures as a final rule. If the Council
recommends that the management measures should be published as a final
rule, the Council must consider at least the following factors and
provide support and analysis for each factor considered:
(1) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource; and
(4) Whether there will be a continuing evaluation of management
measures adopted following their promulgation as a final rule.
(f) If the Council's recommendation includes adjustments or
additions to management measures, and if after reviewing the Council's
recommendation and supporting information:
(1) The Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule based on the factors
specified in paragraph (d) of this section, the action will be
published in the Federal Register as a final rule; or
(2) The Regional Director concurs with the Council's recommendation
and determines that the recommended management measures should be
published first as a proposed rule, the action will be published as a
proposed rule in the Federal Register. After additional public comment,
if the Regional Director concurs with the Council recommendation, the
action will be published as a final rule in the Federal Register; or
(3) The Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(g) Nothing in this section shall impair the authority of the
Secretary to take emergency action under section 305(e) of the Magnuson
Act.
BILLING CODE 3510-22-P
TP09MR94.000
Figure 1 to Part 649.--Standard Tetrahedral Corner Radar Reflector.
TP09MR94.001
Figure 2 to Part 649.--American lobster Management Areas
established for the purposes of regional lobster management.
[FR Doc. 94-5314 Filed 3-4-94; 10:39 am]
