02-22620. American Lobster; Intent to Prepare an Environmental Impact Statement

AGENCY:

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

ACTION:

Advance Notice of Proposed Rulemaking (ANPR), Notice of Intent (NOI) to combine rulemaking and prepare an Environmental Impact Statement (EIS); request for comments.

SUMMARY:

NMFS announces its intent to consider revisions to the Federal lobster regulations in response to the recommendations of the Atlantic States Marine Fisheries Commission (Commission) in Addendum III to Amendment 3 of the Interstate Fishery Management Plan for American Lobster (ISFMP), and prepare one EIS to assess the impact on the human environment of potential management measures for the American lobster fishery in the U.S. Exclusive Economic Zone (EEZ) as recommended by the Commission in Addenda II and III to Amendment 3 of the ISFMP (Addendum II and Addendum III; Addenda II and III). Written comments are requested from the public regarding issues that NMFS should address in the EIS relative to Addenda II and III. NMFS is also soliciting comments with this notification of potential modifications to parts of the current Federal lobster regulations to clarify these rules, assist with their enforcement, and better describe the inter-relationship between the Federal lobster regulations, the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), and other applicable laws.

DATES:

Written comments on the intent to prepare the EIS relative to Addenda II and III and on the potential modifications to parts of the current lobster regulations must be received no later than 5 p.m. Eastern Standard Time on or before October 7, 2002.

ADDRESSES:

Written comments should be sent to Harold C. Mears, Director, State, Federal, and Constituent Programs Office, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments may also be sent via fax to [phone]. Comments submitted via e-mail or Internet will not be accepted.

FOR FURTHER INFORMATION CONTACT:

Peter Burns, [phone], fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

NMFS proposes to combine measures related to Addenda II and III to Amendment 3 into one rulemaking. Addenda II and III are both designed to address overfishing of lobster by increasing egg production, and as such, lend themselves to a single rulemaking.

In response to the Commission’s recommendation that NMFS implement regulations in the EEZ that are compatible with Addendum II to Amendment 3 of the ISFMP for American Lobster, NMFS published an ANPR (66 FR 28726) on May 24, 2001, and an NOI (66 FR 48853) on September 24, 2001. These documents solicited written comments and informed the public of NMFS’ intent to develop an EIS relative to Addendum II. Subsequently, the Commission adopted Addendum III to Amendment 3 which modified Addendum II and included new measures for the majority of the lobster conservation management areas (LCMA). The Commission has recommended that NMFS implement regulations compatible with Addendum III as well.

Addenda II and III are part of an overall management regime set forth in Amendment 3 to the ISFMP. The intent of Amendment 3, approved by the Commission in December of 1997, is to achieve a healthy American lobster resource and to develop a management regime that provides for sustained harvest, maintains opportunities for participation, and provides for the cooperative development of conservation measures by all stakeholders. Amendment 3 employed a participatory management approach by creating the seven LCMAs, each with its own lobster conservation management team (LCMT) comprised of industry members.

Amendment 3 tasked the LCMTs with providing recommendations for area-specific management measures to the Commission’s American Lobster Management Board (Board) to meet the lobster egg production and effort reduction goals of the ISFMP. The effort reduction measures of the area plans were approved by the Board in August of 1999 as part of Addendum I to Amendment 3 (Addendum I). The Board then released the egg production measures as Addenda II and III in February 2001 and February 2002, respectively, and recommended that NMFS implement complementary Federal regulations. NMFS has the authority under the ACFCMA to implement regulations in Federal waters that are compatible with the effective implementation of the ISFMP and consistent with the National Standards of the Magnuson-Stevens Fishery Conservation and Management Act. These Federal regulations are promulgated pursuant to ACFCMA and are codified at 50 CFR part 697.

The requirements of the two addenda are summarized in the following sections.

Addendum II Summary

Specific measures under Addendum II to help achieve the egg production goals of the ISFMP included a series of minimum gauge size increases (increases to the minimum legal length of the carapace, defined as the unsegmented body shell of the American lobster) and an increase in the minimum escape vent size of lobster trap gear fished in state and Federal waters of LCMA 2 (inshore Southern New England), LCMA 3 (offshore area, comprised entirely of Federal waters), LCMA 4 (nearshore Northern Mid-Atlantic), LCMA 5 (nearshore Southern Mid-Atlantic), and the Outer Cape Management Area (nearshore waters east of Cape Cod). However, Addendum II did not require the implementation of these specific measures to either LCMA 1 (Gulf of Maine) or LCMA 6 (Long Island Sound).

Addendum II required the states to promulgate regulations to increase the minimum allowable harvest size of American lobster in LCMAs 2, 3, 4, 5 and the Outer Cape LCMA from 3 1/4 inches (in) (8.26 cm) to 3 9/32 in (8.33 cm) by December 31, 2001, and to increase 1/32 in (0.08 cm) by the end of each calendar year from 2002 through 2004 to an ultimate minimum size of 3 3/8 in (8.57 cm). If the LCMA 3 egg production targets of the ISFMP are not reached by 2004, Addendum II requires additional annual minimum gauge size increases in LCMA 3 of 1/32 in (0.08 cm), until 2008, to an ultimate minimum size of 3 and one-half (8.89 cm). The Commission recommended that the Secretary of Commerce take action to implement gauge increases in the Federal waters of the associated LCMAs consistent with this same schedule. The current minimum allowable harvest size for American lobster in all Federal waters is 3 1/4 in (8.26 cm). This gauge increase schedule was revised under Addendum III.

Addendum II required all lobster traps fished either commercially or recreationally in LCMAs 2, 3, 4, 5 and the Outer Cape LCMA to have in place by 2003, at least one rectangular escape vent measuring 2 in (5.08 cm) by 5 3/4 in (14.61 cm) per trap, or at least two circular escape vents per trap, measuring 2 and one-half in (6.35 cm) in diameter. The Commission recommended that NMFS implement these new lobster trap escape vent size requirements in Federal waters. At the current time, Federal regulations require that all lobster trap gear have a rectangular portal with an unobstructed opening not less than 1 15/16 in (4.92 cm) by 5 3/4 in (14.61 cm); or two circular portals with unobstructed openings not less than 2 7/16 in (6.19 cm) in diameter. The escape vent size requirement was not modified further in Addendum III.

Addendum II also recommended that the lobster trap reduction schedule previously adopted for LCMA 3 in Addendum I be updated to account for the elapsed time between the two addenda. Implementation of the updated lobster trap reduction schedule for LCMA 3 is contingent upon Federal rulemaking procedures currently underway to address historical participation in the lobster trap fishery as recommended by the Commission in Addendum I.

Addendum II, furthermore, recommended that NMFS require LCMA 3 lobstermen to maintain vessel logbooks to record lobster harvest. Current Federal lobster regulations do not require vessel logbooks. No additional modifications were adopted in Addendum III regarding the LCMA 3 trap reduction schedule or vessel logbook requirement.

Addendum III Summary

Addendum III updates the implementation dates for the minimum gauge size increases initially approved in Addendum II, includes additional management measures for LCMAs 2, 3, 4, 5 and the Outer Cape Area, and adopts management programs for LCMAs 1 and 6, neither of which submitted LCMT plans for Board approval under Addendum II..

Addendum III carries forward the Addendum II gauge increase schedule with some modification. Consistent with Addendum II, the initial 1/32 in (0.08 cm) gauge increase must be implemented by the associated states for LCMAs 2, 3, and the Outer Cape Management Area by December 31, 2001. However, Addendum III modifies the implementation date to July 1 (formerly December 31 as presented in Addendum II) for gauge increases in each of the subsequent years through 2004 until the 3 3/8 in (8.57 cm) minimum size is reached (or through 2008 if increases up to 3 and one-half in (8.89 cm) are necessary in LCMA 3 and the Outer Cape LCMA).

Additionally, Addendum III allows LCMAs 4 and 5 the option to either follow this same gauge increase schedule, or take no action in 2001 and implement a 1/16 in (0.16 cm) gauge size increase to 3 5/16 in (8.42 cm) by July 1, 2002, and implement the subsequent annual 1/32 in (0.08 cm) increases consistent with the approved Addendum III gauge increase schedule in the following years (July 1, 2003, and July 1, 2004).

Addendum III also includes additional (new) minimum gauge size increases for the Outer Cape LCMA, if necessary to meet the egg production targets of the ISFMP. After annual implementation of the first four gauge increases up to 3 3/8 in (8.57 cm) from 2001 through 2004, a 1/32 in (0.08 cm) increase would be implemented by July 1 annually during the subsequent 4-year period (2005 through 2008), to a final minimum gauge size in the Outer Cape LCMA of 3 and one-half in (8.89 cm).

In addition to the modifications of existing measures adopted under Addendum II, Addendum III includes several new management measures. Those new measures are detailed in this section for each LCMA. As written in Addendum III, some of the new measures need only be implemented if it is determined in subsequent years that a particular LCMA is not on target to achieve the egg production goals of the ISFMP. These contingent measures were provided as a safety net by some of the LCMTs to ensure that the necessary level of egg production is met. However, review of the LCMT plans by the Commission’s Lobster Technical Committee (Technical Committee) concluded that all the contingent measures identified are, in fact, necessary to achieve the egg production goals based on the most recent 2000 lobster stock assessment. Subsequent to the next lobster stock assessment scheduled for late 2003, it is anticipated that the Technical Committee will reassess the need for the contingent provisions for each LCMA.

LCMA 1

Several new measures were adopted into the LCMA 1 management program in Addendum III:

Escape Vent Size Increase. If necessary, all lobster traps fished either commercially or recreationally in LCMA 1 must, by July 1, 2007, have at least one escape vent per trap measuring 2 in (5.08 cm) by 5 3/4 in (14.61 cm) or two circular vents with a diameter measuring 2 and one-half in (6.35 cm).

Zero-Tolerance V-Notching. Addendum III establishes a zero-tolerance approach to the determination of a v-notched female and defines a v-notched female lobster in LCMA 1 as any female lobster bearing a v-shaped notch of any size in the flipper immediately to the right of the center flipper as viewed when the underside of the lobster is down and its tail is toward the person making the determination. In the context of Addendum III, V-notched female lobster also means any female that is mutilated in a manner which could hide, obscure or obliterate such a mark.

Mandatory V-notching Requirement. All LCMA 1 lobster fishers are required by Addendum III to v-notch all egg-bearing female lobsters caught in the process of lobstering. This facet of the LCMA 1 plan was approved by the Board with the understanding that the Commonwealth of Massachusetts Division of Marine Fisheries (MA DMF) will monitor the percentage of v-notched egg-bearing female lobster in commercial catches during 2002. If the observed percentage of v-notched females does not reach 50 percent by the end of 2002, MA DMF will consider additional measures in 2003 to help achieve the goals of the ISFMP. In this situation, at a minimum, all regulations promulgated to implement Addendum III in LCMAs 2, 3 and the Outer Cape LCMA would be expanded to include the Massachusetts portion of LCMA 1. Other entities of LCMA 1 may also consider additional management measures in 2003 to achieve the goals of Adde ndum III.

LCMA 2

No new measures were adopted for LCMA 2 under Addendum III. However, as previously described, the implementation date for annual increases of 1/32 in (0.08 cm) to the minimum gauge size as required under Addendum II was changed from December 31 to July 1 for calendar years 2002 through 2004.

LCMA 3

Mandatory V-Notch Requirement. All vessels fishing in LCMA 3 north of 42° 30′ N. lat. are required to v-notch all egg-bearing female lobsters caught while lobster fishing.

Overlap Boundary Between LCMA 3 and LCMA 5. Addendum III adopted a 5-mile (8.05 km) overlap along the entire length of the boundary between LCMAs 3 and 5. This overlap area is defined by the following coordinates:

LMCA 3/LCMA 5 OVERLAP BOUNDARY AREA

POINT	CURRENT COORDINATES (LAT/LONG)	OVERLAP COORDINATES (LAT/LONG)
V	39°50′ N/73°01′ W	39°48′ N/72°55′ W
X	38°39′ N/73°40′ W	38°38.2′ N/73°33.8′ W
Y	38°12′ N/73°55′ W	38°10.4′ N/73°49′ W
Z	37°12′ N/74°44′ W	37°10.6′ N/74°38′ W
ZA	35°34′ N/74°41.′ W	35°31.9′ N/74°45.5′ W
ZB	35°14.5′ N/75°31′ W	35°10.3′ N/75°27.7′ W
From point V, current coordinates extending out to new overlap coordinates, back to point ZB

Choose and Use Provision. This measure would require those vessels qualifying for access under a historical participation effort reduction program, if implemented under Federal regulations in LCMA 3, to designate LCMA 3 each year on the vessel’s Federal permit, or else forego subsequent participation in the LCMA 3 lobster trap fishery.

LCMA 4

Maximum Gauge Size. The maximum gauge size for American lobster in LCMA 4 shall be no greater than 5 1/4 in (13.34 cm) beginning July 1, 2002. A 5 in (12.7 cm) maximum gauge size may also be considered if, following an updated stock assessment, it is deemed necessary to meet the lobster management plan goals and objectives. If maximum gauge sizes are not in place in adjacent management areas, then LCMA 4 fishermen may v-notch female lobsters above the maximum size.

LCMA 5

Maximum Gauge Size. The maximum gauge size for American lobster in LCMA 5 shall be no greater than 5 and one-half in (13.97 cm) beginning July 1, 2004. The 5 and one-half in (13.97 cm) maximum size will be implemented in LCMA 5 if, following an updated stock assessment, this measure is considered necessary to meet the lobster management plan goals and objectives. If maximum gauge sizes are not in place in adjacent management areas, then LCMA 5 fishermen may v-notch female lobsters above the maximum size.

Vessel Upgrade Limit. This measure restricts the limit on increases in vessel length to no more than 10 percent and limits increases in vessel horsepower through upgrading or replacement by no more than 20 percent.

LCMA 6

A combination of minimum gauge size increases and escape vent size increases has been approved for LCMA 6 in Addendum III. Although LCMA 6 is comprised entirely of New York and Connecticut state waters within Long Island Sound, Federal lobster permit holders authorized by these states to fish for lobster in this LCMA will be affected by these measures.

Minimum Gauge Size. The minimum gauge size for American lobster in LCMA 6 shall be no lower than the minimum carapace length identified in the following table. The implementation date for associated regulations mandating each gauge increase is also indicated.

July 1, 2004*-3 9/32 in (8.33 cm)

July 1, 2005*-3 5/16 in (8.42 cm)

* NOTE-LCMA 6 will implement minimum size increases beyond 3 1/4 in (8.26 cm) at the rate of 1/32 in (0.08 cm) per year, beginning in 2004, until a final minimum size of 3 5/16 in (8.42 cm) is reached, if, following an updated stock assessment, it is necessary to meet lobster management plan goals and objectives.

LCMT 6 will choose among two possible paths for lobster management beyond 2005. Regulations for these measures must be in place according to the following implementation schedule.

PATH 1

YEAR	ACTION
July 1, 2006	Elevate gauge increase and effort reduction from trap tag buy back program
July 1, 2007*	Implement 1 32 in (0.08 cm) gauge size increase, and or 2 in (5.08 cm) escape vent size increase, and or V-notch some percentage of female lobsters, and or establish a maximum gauge size*
July 1, 2008*	Implement 1/32 in (0.08 cm) gauge size increase, and/or 2 in (5.08 cm) escape vent size increase, and/or V-notch some percentage of female lobsters, and/or establish a maximum gauge size
NOTE: LCMA 6 will implement the above management measures, if, following an updated stock assessment, it is necessary to meet lobster management plan goals and objectives.

OR

PATH 2

YEAR	ACTION
July 1, 2006	Implement a 2 in (5.08 cm) escape vent size if a gauge increase was implemented in 2005
July 1, 2007	Evaluate with new information, confirm that the overfishing threshold has been met or exceeded
July 1, 2008	Evaluate with new information, confirm that the overfishing threshold has been met or exceeded

If Path 2 is selected for implementation, then all lobster traps in LCMA 6, whether fished commercially or recreationally, must contain at least one rectangular escape vent per trap or at least two circular escape vents according to the following schedule. Regulations must be implemented in accordance with the dates indicated.

	One rectangular Vent	Two Circular vents
July 1, 2006*	2 in (5.08 cm) by 5 3/4 in (14.61 cm)	2 and one-half in (6.35 cm)
*NOTE: LCMA 6 will implement a 2 in (5.08 cm) escape vent size if a gauge size increase is implemented in 2005, as outlined in Section 2.1.5.1 of Addendum III.

Outer Cape LCMA

Minimum Gauge Size Increases. Addendum II adopted increases to the minimum gauge size for lobster harvested in the Outer Cape LCMA that would result in achievement of a 3 3/8 in (8.57 cm) minimum size in 2004. Addendum III mandates implementation of additional 1/32 in (0.08 cm) increases annually beginning July 1 of each year from 2005 through 2008 to a final minimum size of 3 ½ in (8.89 cm) if such measures are deemed necessary to meet the egg production goals of the ISFMP.

Trap Reduction Schedule. To control expansion of fishing effort, the overall total number of traps allowed to be fished in the Outer Cape LCMA will be established from the sum of the individual maximum traps reported by each Outer Cape lobster fisherman on their 1998 MA DMF catch report. Addendum III mandates that beginning in 2002 and extending through 2008, a 20 percent reduction of the total number of traps allowed to be fished will occur in the Outer Cape LCMA. An additional 5-percent reduction of the number of the total number of traps allowed to be fished per year may be employed in 2006 and 2007, if necessary, to meet lobster egg production goals and objectives. The initial trap allocations for each lobsterman will be based on catch report statistics from MA DMF and will be reduced annually during the reduction period. Those who fished in the Outer Cape LCMA in 2001 but have no prior fishing history there (in other words, have not submitted MA DMF catch reports) will be issued a trap allocation based on proof of documentation of the number of traps they fished during 2001. In such situations, allocations will be apportioned from a percentage of the overall trap cap number, not to exceed 2 percent of that total. Those who received a transferred license with an Outer Cape LCMA fishing history (based on submission of MA DMF catch reports) will receive an initial trap allocation based on that history.

Annual Trap Transfer Period and Passive Reductions. Trap transfers are allowed annually from January 1 through March 31. Trap tags may be transferred among Outer Cape lobster fishers to allow individual operations to build up or down within the maximum allowable 800 trap limit. For each trap tag transfer event, a 10 percent passive reduction in traps will occur for that allocation. For example, a 100-trap tag transaction will result in a net amount of 90 tags transferred. The overall Outer Cape trap cap will be reduced accordingly through active and or passive trap reduction measures until the fishing mortality rate in the Outer Cape LCMA is reduced to a level consistent with the egg production goals of the ISFMP. Each time a lobster license is transferred within this LCMA, the trap tag allocation associated with that license will be reduced by 10 percent. No new participants will be allowed to participate in the Outer Cape lobster fishery unless they receive trap tags through a transfer from fishermen operating under the established total trap cap. A trap haul-out period is also established under Addendum III for the Outer Cape LCMA from January 1 through March 31 annually to assist in the enforcement of the trap cap. No trap gear will be allowed in the Outer Cape LCMA during this period.

Additional Issues for Consideration

NMFS seeks comments on the following potential changes to the Federal lobster regulations, in addition to those as described in Addenda II and III to Amendment 3 of the ISFMP, to more effectively express their initial intent and facilitate enforcement:

(1) Modification of 50 CFR 697.4(a)(7)(iv), Vessel permits and trap tags, to allow a change to a vessel’s lobster trap area designations on the Federal limited access lobster permit when the vessel and permit are sold to a second party. Currently, the regulations prohibit such changes during the course of the Federal permit year once the permit has been issued unless the permitted vessel becomes a replacement vessel for another qualified vessel.

(2) Inclusion of a specific reference to already existing enforcement measures in the conditions section of 50 CFR 697.4(b), Vessel permits and trap tags.

(3) Modification of 50 CFR 697.7(c)(1)viii, Prohibitions, to more directly specify that Federal lobster permit holders are prohibited from hauling or possessing lobster trap gear belonging to another vessel.

(4) Modification of 50 CFR 697.22, Exempted fishing, to specify, consistent with the wording in 50 CFR part 600.745, that either the Regional Administrator for the Northeast Region, or the Director of the Office of Sustainable Fisheries, as appropriate, may exempt any person or vessel from the regulations in 50 CFR part 697 for the conduct of exempted fishing pursuant to the provisions of 50 CFR part 600.745. This modification would also provide additional language to allow the Regional Administrator for the Northeast Region, or the Director of the Office of Sustainable Fisheries, as appropriate, to authorize a substitute vessel to haul ashore the lobster trap gear of an inoperable or mechanically impaired federally permitted lobster vessel without having to engage in the exempted fishing process outlined at 50 CFR 600.745, Exempted fishing. This revision would allow NMFS to more expeditiously address exigent needs than is currently provided in the regulations.

If revised regulations relative to the management measures as described in this notice are promulgated they may have a significant economic effect on a substantial number of small entities, including Federal lobster permit holders. Accordingly, NMFS requests public input on the entire suite of Addenda II and III measures and additional issues relative to the Federal lobster regulations as identified to assist in conducting a comprehensive assessment of the impacts of these and other associated measures to the human and natural environment in the EIS.

Classification

This ANPR has been determined to be not significant for the purposes of Executive Order 12866.

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

Dated: August 29, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory programs, National Marine Marine Fisheries Service.