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Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery
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PDF Version (22 pp, 137K, About PDF) [Federal Register: July 29, 2009 (Volume 74, Number 144)] [Rules and Regulations] [Page 37530-37551] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr29jy09-8] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 697 [Docket No. 070717357-91069-03] RIN 0648-AV77 Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: NMFS announces new Federal American lobster (Homarus americanus) regulations which implement a mandatory Federal lobster dealer electronic reporting requirement, changes to the maximum carapace length regulations for several lobster conservation management areas (LCMAs/Areas), and a modification of the v-notch definition for protection of egg-bearing female American lobsters in certain LCMAs. DATES: Effective Date: This final rule is effective August 28, 2009. Applicability dates: The revised broodstock protection measures (maximum carapace length and v-notch definition) set forth in this final rule in Sec. 697.20(b)(3) through Sec. 697.20(b)(6) and Sec. 697.20(g)(3) and (4) for Areas 2, 3, 4, 5 and 6 are applicable August 28, 2009. Broodstock protection measures relevant to the Outer Cape Area are applicable July 1, 2010 as set forth in Sec. 697.20(b)(7) and (8) and Sec. 697.20(g)(7) and (8). The weekly trip-level Federal lobster dealer electronic reporting requirements are applicable for all Federal lobster dealers beginning January 1, 2010 as set forth in Sec. 697.6 paragraphs (n) through (s). ADDRESSES: Copies of the American Lobster Environmental Assessment/ Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/ FRFA) prepared for this regulatory action are available upon written request to Harold C. Mears, Director, State, Federal and constituent Programs Office, NMFS, 55 Great Republic Drive, Gloucester, MA 01930, telephone (978) 281-9327. The documents are also available online at http://www.nero.noaa.gov. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the mailing address listed above and by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285. FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Management Specialist, telephone (978) 281-9144, fax (978) 281-9117. SUPPLEMENTARY INFORMATION: This action responds to the recommendations for Federal action in the Atlantic States Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan for American Lobster (ISFMP). The mandatory Federal lobster dealer reporting requirement is consistent with the recommendations for Federal action by the Commission in Addendum X to Amendment 3 of the ISFMP and allows for a more comprehensive and consistent coastwide accounting of lobster harvest data to facilitate stock assessment and fishery management. Accordingly, effective January 1, 2010, this final rule requires all Federal lobster dealers to provide trip-level electronic reports on a weekly basis. Under the preferred alternative in the proposed rule for this action (70 FR 58099), the dealer reporting requirements would have been effective thirty days after publication of this final rule. However, in consideration of the public comments received on the reporting requirements, NMFS has deferred the effective date for electronic reporting for affected lobster dealers until January 1, 2010, to provide dealers with several additional months to adjust their business practices and comply with these new requirements. In addition to expanded dealer reporting requirements, this action revises existing Federal lobster regulations and implements new requirements to support the Commission's ISFMP by adopting v-notching and maximum carapace length measures (together referred to as broodstock protection measures) in Areas 2, 3, 4, 5 and 6 (see 50 CFR Sec. 697.18 for descriptions and locations of all LCMAs). These measures are, for the most part, identical to those already enforced by the states. These Federal broodstock protection measures complement the Commission's ISFMP objectives and state regulations, thereby reducing confusion and facilitating enforcement and resource assessment within and across lobster stock and management areas. Specifically, for Areas 2, 4, 5 and 6, this rule implements a maximum carapace size restriction for both male and female American lobster at 5 1/4 inches (13.34 cm) and a maximum size [[Page 37531]] of 6 7/8 inches (17.46 cm) for offshore Area 3. These measures take effect thirty days after the publication of this final rule. On July 1, 2010, the maximum carapace length regulation in Area 3 will decrease to 6 3/4 inches (17.15 cm). Further, effective thirty days after the publication of this rule, Areas 2, 3, 4, 5 and 6 will be held to the Commission's v-notch definition which is a notch or indentation in the base of the flipper that is at least as deep as 1/8 inch (0.32 cm), with or without setal hairs. The Commission's definition revises the definition of a standard v-shaped notch in Sec. 697.2. Finally, this action expands the Commission's recommended broodstock protection measures to include the Outer Cape Management Area (Outer Cape Area/Outer Cape) to provide further opportunities to protect lobster broodstock and provide for a framework of consistent management measures across lobster stock areas. The broodstock protection measures for the Outer Cape Area, under the preferred alternative in the proposed rule, would have taken effect thirty days after the publication of this final rule, consistent with the broodstock requirements for Areas 2, 3, 4, 5 and 6. However, after considering the concerns of the Outer Cape lobster industry regarding the perceived economic impacts of these measures, and after reviewing, at the request of the Outer Cape industry, newly-available Outer Cape sea sampling data provided by the Commonwealth of Massachusetts, NMFS has deferred effective implementation of the Outer Cape Area broodstock measures until July 1, 2010, to allow affected fishers in the Outer Cape Area additional time to adjust to these new regulatory requirements. Accordingly, the revised standard v-notch definition (a notch or indentation in the base of the flipper that is at least as deep as 1/8 inch (0.32 cm), with or without setal hairs) and the 6 3/4- inch (17.15 cm) maximum size will take effect in the Outer Cape Area on July 1, 2010. Until July 1, 2010, the Outer Cape Area will not have a maximum carapace length restriction and will remain governed by the 1/ 4-inch (0.64-cm) v-notch definition in the Federal lobster regulations which is a straight-sided triangular cut, without setal hairs, at least 1/4 inch (0.64 cm) in depth and tapering to a point. Statutory Authority This final rule modifies the Federal lobster regulations in the Exclusive Economic Zone (EEZ) under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) 16 U.S.C. 5101 et seq., which states, in the absence of an approved and implemented Fishery Management Plan under the Magnuson- Stevens Fishery Conservation and Management Reauthorization Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nautical miles (nm) offshore. The regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act. Purpose and Need for Management One purpose of this action is to improve the availability and utility of fishery-dependent lobster data to meet the need for a more comprehensive baseline for assessing the status of lobster stocks coastwide. It also will provide NMFS with a complete set of trip-level harvest data from all Federal lobster dealers for use in cooperative and internal policy decisions and analyses. Additionally, this action will enhance lobster broodstock protection, facilitate enforcement of lobster measures, and aid in resource assessment by revising American lobster maximum carapace size and v-notch requirements, consistent with the recommendations of the Commission in the ISFMP. Finally, this rule expands the curtain of protection on broodstock lobster migrating among lobster management areas by extending the revised maximum carapace size and v-notch requirements to the Outer Cape Management Area. As referenced in the EA for this action, the Outer Cape lobster fishery is categorized as fishing on a population of transient lobsters migrating between inshore and offshore areas. Therefore, the expansion of the broodstock measures in the Outer Cape Area complements those measures in adjacent areas which may augment long-term biological benefits on a multi-area and multi-stock basis and aid in resource assessment since the Outer Cape Area overlaps all three lobster stock areas. The need for action is rooted in the 2005 peer-reviewed American lobster stock assessment and in recommendations in a subsequent peer review panel report. The findings of the stock assessment and peer review panel prompted the Commission to take action by adopting measures to address the need for improved fishery data collection and broodstock protection. The Commission took action to address these issues through the adoption of Addendum X and Addendum XI to Amendment 3 of the ISFMP. The focus of this rulemaking is on the mandatory dealer reporting requirements in Addendum X and the broodstock protection measures of Addendum XI. This action also will facilitate enforcement and resource assessment by aligning measures of different management areas that fish on a common lobster stock. A new stock assessment was completed and approved by the Commission's Lobster Management Board in May 2009 and released to the Lobster Technical Committee for recommendations on future management measures to address the concerns raised by the assessment. Due to the timing of this Federal regulatory action, the Lobster Technical Committee recommendations are not available for incorporation in this document. However, a review of the assessment information available when this rule was prepared suggests that the measures identified in this action will not be contrary to the assessment results. Background American lobsters are managed within the framework of the Commission. The Commission serves to develop fishery conservation and management strategies for certain coastal species and coordinates the efforts of the states and Federal Government toward concerted sustainable ends. The Commission decides upon a management strategy as a collective and then forwards that strategy to the states and Federal Government, along with a recommendation that the states and Federal Government take action (e.g., enact regulations) in furtherance of this strategy. The Federal Government is obligated by statute to support the Commission's ISFMP and overall fishery management efforts. In support of the ISFMP, NMFS revises the Federal American lobster regulations in response to the Commission's recommendations for Federal action in Addenda X and XI. The addenda were themselves a response, at least in part, to conclusions contained in the 2005 lobster stock assessment. More specifically, the 2005 stock assessment and peer review process identified the dearth of landings data in the American lobster fishery as an inhibitor to the effective evaluation of the status of the lobster resource, that available data are woefully inadequate to fulfill the management needs of the [[Page 37532]] resource, and that a mandatory catch reporting system is needed. Such conclusions provided the impetus for Addendum X's reporting requirements, which initiated this action to implement the mandatory Federal dealer reporting requirement. This same 2005 assessment and peer review process concluded that the Southern New England (SNE) lobster stock is suffering from depleted stock abundance and recruitment with high dependence on new recruits. The SNE stock component is in poor shape with respect to spawning, recruit and full-recruit abundance indices. The assessment results also indicated that the Georges Bank (GBK) lobster stock, although in a stable state with respect to abundance and recruitment, is also dependent on new entrants to the fishery a cause for concern that the fishery is too reliant on newly recruited lobster. These issues prompted the Commission to adopt Addendum XI, which sought to protect SNE broodstock lobsters by creating new maximum carapace lengths and implementing a more restrictive definition of a v-notch in certain Lobster Management Areas. Accordingly, NMFS published a proposed rule in the Federal Register on October 6, 2008 (73 FR 58099) which presented the following three independent regulatory actions for public comment: (1) Requiring all Federal lobster dealers to electronically report trip-level lobster landings to NMFS on a weekly basis; (2) Establishing a maximum carapace length restriction for lobster in Area 2, Area 3, Area 6, and the Outer Cape Management Area and revising the maximum carapace length requirements for Areas 4 and 5; and (3) Revising the Federal definition of a standard v-notched lobster, applicable to lobster in all areas, with the exception of Area 1. Three alternatives for each of the three proposed regulatory actions were analyzed in a draft Environmental Assessment (EA) and included: a status quo (no action) alternative; an alternative to implement the Commission's ISFMP recommendations in Addendum X and XI; and a third modified alternative which varies in certain aspects from the Commission recommendations, but still would be compatible with the Commission's ISFMP. Specifically, with respect to issue (1) - Dealer Reporting - the preferred alternative would have implemented weekly, trip-level electronic reporting requirements for all Federal lobster dealers within 30 days of publication of the final rule. The modified option allowed for a one-year delay in the implementation of the measure. This final rule finds a middle ground between the two options by requiring all Federal American lobster dealers to comply with electronic reporting requirements beginning several months after publication of this rule, effective January 1, 2010. The decision is based on public comments (five in favor of mandatory dealer reporting and four in opposition, See Comments and Responses) in response to the proposed rule that electronic reporting requirements may be expensive for dealers who do not currently own computers. The EA prepared for this action determined that delaying the requirements would reduce short-term costs of acquiring Internet service, for those who did not already have it, during that interim year. Additionally, a delay would provide more time for affected dealers to obtain the required equipment and otherwise adjust their business practices to accommodate electronic reporting. Some affected dealers may choose to offset costs by obtaining the file upload software through a NMFS contractor, at no cost to the impacted dealer. The no-cost option could mitigate some of the financial impact to Federal lobster dealers who now will be subject to mandatory dealer reporting on January 1, 2010. Additionally, delaying implementation of the dealer reporting program until January 1, 2010 will allow for a more seamless integration of the new dealers into the data collection program since the effective date coincides with the start of the annual Federal dealer reporting period which is January 1. All dealer data are entered into the Standard Atlantic Fisheries Information System (SAFIS). With respect to the broodstock protection measures of this rule: Issue (2)- Maximum Size Restrictions; and Issue (3) - Revisions to the V-Notch Definition, NMFS analyzed two options in addition to the no action alternative. These options included the straight Commission recommendations that would not extend the broodstock measures to the Outer Cape Area and a modified alternative that would include the Outer Cape Area. NMFS received many comments from the Outer Cape industry in opposition to the expansion of the broodstock measures into the Outer Cape (See Comments and Responses). The general theme of the comments was that the proposed broodstock measures would affect a higher percentage of the catch than the NMFS analysis in the draft EA had determined and would, consequently, have greater economic impacts. In an effort to understand industry concerns with the proposed rule, NMFS attended an Outer Cape Lobster Conservation Management Team (LCMT) meeting in Chatham, MA on November 10, 2008, which occurred during the comment period for the proposed rule. This industry meeting, facilitated by the Massachusetts Division of Marine Fisheries (MA DMF), was widely attended by the Outer Cape lobster fishing sector as well as members and proxies of the Massachusetts state legislature and local media. NMFS listened to the concerns of the industry during the meeting and encouraged the public to submit written comments by the end of the comment period. At the suggestion of the industry during the meeting, NMFS agreed to review data from an ongoing expanded sea sampling program designed to further evaluate the potential impacts of the proposed measures on the Outer Cape lobster fishing sector. Conducted as a cooperative effort between MA DMF and the Outer Cape industry, the expanded sea sampling program in 2008 was initiated to more accurately document the impacts of the broodstock measures in the Outer Cape Management Area. Accordingly, in 2008, MA DMF enhanced its ongoing sea sampling program by doubling the number of Outer Cape sea sampling trips for the 2008 sampling year. Normally, MA DMF takes 14 sea sampling trips from the Outer Cape ports of Chatham and Nauset from May through November of each year (seven trips from each of Chatham (southern part of the Outer Cape Area) and Nauset (central part of the Outer Cape Area)). However, for this expanded 2008 program MA DMF completed an additional 14 Outer Cape sea sampling trips during the sampling season. All 14 additional trips were conducted aboard vessels operating out of the port of Provincetown (northern part of the Outer Cape Area), a port not previously included in MA DMF's lobster sea sampling program. NMFS received the completed analysis of the expanded sea sampling program from MA DMF on February 11, 2009. Upon review of the MA DMF analysis (MA DMF Report) of the enhanced sea sampling program data, NMFS chose to support the preferred alternative to expand the broodstock measures into the Outer Cape Area, as the information in the report did not contradict the rationale for expanding the broodstock measures to include the Outer Cape Area. However, in consideration of the comments and concerns of the Outer Cape industry as [[Page 37533]] demonstrated through the industry meeting and in written comments, NMFS defers the effective date of these measures (the 6 3/4-inch (17.15-cm) maximum carapace length restriction and 1/8-inch (0.32 cm) v-notch definition) only in the Outer Cape Area for a full year (until July 1, 2010) to allow the industry time to adjust to the new requirements. The decision to move ahead with the preferred alternative was straightforward with respect to the maximum size requirements. The NMFS EA analysis estimates impacts to the Outer Cape industry due to restricting the harvest of lobster in excess of 6 3/4 inches (17.15 cm) as not significant - about 0.5 percent for the trap sector and about 5.7 percent for the non-trap sector. The MA DMF 2008 expanded sea sampling data analysis had similar findings. In fact, the expanded sea sampling data suggest that the impacts on Outer Cape lobstermen of the 6 3/4-inch (17.15-cm) maximum size are even less than estimated in the NMFS analysis. Specifically, during the entire 2008 sea sampling season, which included 28 sampling trips aboard commercial trap fishing vessels in the Outer Cape Area, not one harvestable lobster was observed in excess of the 6 3/4-inch (17.15-cm) maximum carapace length. Although the MA DMF report affirms NMFS' rationale in proposing these new regulations, the report is not being relied upon to form the basis of the rationale. Based on the findings of the NMFS analysis with which the expanded MA DMF sampling program data is consistent, the impacts of the maximum size regulations on the Outer Cape lobster industry are not expected to be significant. This finding is highlighted in the MA DMF report on the expanded Outer Cape sea sampling program which indicated that ``very few marketable (non-egg bearing, non-v-notched) lobsters greater than the proposed maximum sizes were observed, as such the potential loss to the fishery...would be negligible.'' The MA DMF report further states that only 14 lobsters out of 85,695 lobsters sampled in the Outer Cape region since 1981 (0.02 percent) had a carapace length which exceeded the proposed maximum size of 6 3/4 inches (17.15 cm). NMFS stands behind its analysis of the impacts of these measures in the EA and reviewed the MA DMF report at the industry's request as a check on the accuracy of the analysis. After reviewing the MA DMF report, there is nothing to change the decision to expand the maximum size restrictions to include the Outer Cape. It should be noted that the MA DMF expanded survey only sampled trap vessels but the expected impacts to the non- trap component of the Outer Cape lobster fishery are not expected to be significant based on the analysis conducted in the EA for this action. On balance, NMFS will defer the implementation of the 6 3/4-inch (17.15-cm) maximum size in the Outer Cape Area for a full year, until July 1, 2010, to allow the industry additional time to mitigate any adverse impacts resulting from the implementation of these broodstock measures on Outer Cape lobstermen. NMFS review of the v-notch data from the expanded MA DMF sea sampling program found results to be consistent with the NMFS impact analysis in the EA regarding the Nauset and Chatham trips. The EA considered MA DMF sea sampling data collected from 1999 to 2005, which indicated that the percentage of females with a v-notch in the Outer Cape Area varied between 2 percent and 4 percent of the lobsters observed as cited in the EA. This long-term data set is among the few available for assessing v-notch status for the northwest Atlantic lobster resource and the best available for assessing v-notch status in the Outer Cape Area. Despite the longevity and consistency of the data set, concerns with the precision of the v-notch measurement are notable. Specifically, MA DMF sampling protocol did not include quantitative measurement of notch depth. Since the notches were not measured, it is not known what proportion of the population of v- notched lobsters would be legal under various v-notching definitions. Regardless of the notch depth, if the most conservative assumption is applied (essentially a zero-tolerance definition) and all the v-notched lobsters are considered illegal for harvest, still only about 4 percent of the lobster would be illegal due to the presence of any type of v- notch. However, the percentage of illegal lobster is likely less than 4 percent since some unknown number of notched lobsters would still be legal under either the 1/8-inch (0.32-cm) or 1/4-inch (0.64-cm) v-notch definitions. Since the 1/8-inch (0.32-cm) definition is more restrictive (assuming that all notches are made consistent with an industry standard of a 1/4-inch (0.64-cm) notch), it would appear that the impacts of this standard would be somewhat less than 4 percent, although somewhat higher than under a 1/4-inch (0.64-cm) standard. Regardless, these losses in catch are expected to be relatively low for the Nauset and Chatham fleets. This estimate was supported by MA DMF's expanded sea sampling program which considered Outer Cape v-notch statistics from 2005 through 2008. That data segment estimated that the difference in losses in catch between the current 1/4-inch (0.64-cm) v- notch definition and the proposed 1/8-inch (0.32-cm) v-notch would fall between 3.8 percent to 5 percent for the Nauset and Chatham areas. The data in the MA DMF report on the 14 Provincetown trips revealed a much higher instance of v-notched female lobster, estimated at approximately 14.9 percent of the catch. Therefore, without considering the manner in which the sampling was conducted and other relevant factors, the report indicates that implementation of a 1/8-inch (0.32- cm) v-notch standard could result in a 10.7 percent loss in harvest when compared to the 1/4-inch (0.64-cm) v-notch standard. However, this estimate does not accurately reflect the expected losses in catch that would be endured by the lobster industry if the 1/8-inch (0.32-cm) v- notch standard is applied, in fact, the impacts are expected to be much less. The MA DMF report aptly points out the reasons for this over- estimation as noted below and cautions users of the data from accepting the data on face value, stating ``the dramatic difference in v-notch rate detected by location mandates caution when applying any OCC-wide estimates of losses.'' When considering the data from the Provincetown sampling trips, many factors must be considered. Primarily, the data reflect only one season's worth of sea sampling, totaling 14 trips between May and November, 2008. More than one third of the trips were conducted in November when lobsters are expected to be moving from cooling inshore waters to deeper offshore locations. Therefore, more notched lobsters may be present and observed as they move offshore from Massachusetts and Cape Cod Bays through the Outer Cape Area. Further, the sampling bias from conducting over 30 percent of the sampling trips for the season in a single month limits the manner in which the data can be interpreted and applied. More importantly, one would expect the incidence of v-notched lobsters in the northern portion of the Outer Cape Area to be higher than other parts of the Outer Cape Area since it is immediately adjacent to Lobster Management Area 1, which is part of the GOM Stock Area and subject to a mandatory v-notching requirement (lobstermen must v-notch and release all egg-bearing lobsters) and a more restrictive ``zero-tolerance'' v-notch definition. According to the MA DMF report, 87 percent of the sampling [[Page 37534]] trips out of Provincetown occurred west of 70 [deg] W. Long., the meridian which separates the GOM and GBK stocks, with the former on the west side of the meridian (NMFS Statistical Area 514) and the latter on the east side (NMFS Statistical Area 521). Additionally, the MA DMF report states that ``the highest incidence of v-notched lobster was observed in the ``overlap area'' around Provincetown where Area 1 lobstermen and Outer Cape lobstermen fish side-by-side....indicating that the majority of the Provincetown fishery occurred within the Gulf of Maine Stock Unit.'' The overlap area refers to the Area 1/Outer Cap Overlap Area. Lobstermen who traditionally fish in Area 1 can fish in this overlap area under Area 1 management regulations, while lobstermen who fish in the Outer Cape Area can fish in the overlap under the Outer Cape Area management measures. Another important fact in assessing the extent to which the incidence of v-notched lobsters in the MA DMF investigation may be interpreted is that the sea samplers did not measure the depth of the v-notch of the lobsters encountered during the sea sampling trips. Rather, samplers categorized notches as either a sharp notch, old notch, or mutilated or missing flipper. In the MA DMF report, a sharp notch is a defined as a straight-sided v-shaped notch without setal hair. An old notch is defined as a notch that has endured at least one molt, usually more irregular in shape and often with setal hair present. A flipper that is missing or mutilated in a manner that could obscure the notch was considered by samplers as a v-notch. Therefore, since all such notches were not measured, the MA DMF analysis assumes that all old notches were deeper than 1/8 inch (0.32 cm) and therefore all such lobster were protected, as cited in the MA DMF report. However, it is expected that many of these old notches, as well as some subset of the mutilated lobster, would actually be legal for harvest under the 1/8-inch (0.32 cm) notch definition. In other words, the sampling design estimated the incidence of v-notch based on a zero- tolerance definition and assumes that all notched lobster are illegal. The MA DMF report points out that this represents ``a worst case scenario'' and that the ``actual degree of protection and losses to the industry would be less'' than the additional 10.7 percent calculated in the report for the Provincetown area, based only on one season's worth of data (2008). Despite the short time series of the Provincetown v-notch data set and the skewed distribution of sampling trips from that port over the course of the season, the 2008 MA DMF data affirms the rationale for NMFS to carry forward with the expansion of the 1/8-inch (0.32-cm) v- notch requirement to include the Outer Cape Area. Under the current scenario, fishermen in Area 1 are subject to the most restrictive zero tolerance v-notch definition. These fishermen are discarding lobster with any mark resembling a trace of a notch or any which are mutilated in a manner that could obscure a notch. Fishing alongside them are Provincetown fishermen who, prior to this rulemaking, were subject to the least restrictive 1/4-inch (0.64-cm) v-notch definition and allowed to harvest some percentage of the v-notched lobsters that the Commission's ISFMP, as well as Area 1 lobstermen, are trying to protect from harvest. Mitigating the compromising effects of inconsistent management measures across management areas is one of the intentions of this rule which has generally focused on alignment of the broodstock protection measures of the Outer Cape with those of Area 3 since the majority of the Outer Cape fishery targets the GBK stock it shares with Area 3. However, the 2008 data from the MA DMF expanded sampling program suggests that inconsistent measures may be compromising management of the GOM stock as well, although the short-term nature of this data should not be over-interpreted and is insufficient to make any robust determinations. The expanded MA DMF sampling data provided a snapshot of conditions existing at the time of observation, and accordingly, the MA DMF report cautioned against giving it undue weight. Nevertheless, even if accorded little weight, the report was notable in that it did nothing to contradict NMFS' findings. Although the MA DMF data indicate that the majority of the Provincetown fishery occurs on the GOM stock, they still remain part of the Outer Cape fishery and their continuance in this category was affirmed by the adoption of a common overlap area with Area 1 in the Commission's plan, and subsequently by NMFS for the purposes of consistency and cooperation. Applying the more restrictive zero- tolerance v-notch definition to the Provincetown sector of the fishery may more directly assist in the conservation of the GOM stock, although such an assumption warrants more extensive review and evaluation. The scope of the analysis of the broodstock protection measures focused on aligning the Outer Cape with Area 3 since the majority of the Outer Cape and a major component of Area 3 fall within the GBK stock area. Given the confusion that differential management measures would cause within a single management area, the potential for additional economic impacts due to the implementation of the zero-tolerance definition, and the lack of confidence in a single years' worth of data (2008) for making such assumptions, NMFS intends to implement the 1/8-inch (0.32- cm) standard to the entire Outer Cape Area. The MA DMF study shows that the impacts of the 1/8-inch (0.32 cm) v-notch on Nauset and Chatham fishermen are relatively consistent with those estimated by NMFS in the EA (3.8-5 percent loss of catch in the MA DMF study versus less than 4 percent in the EA based on previous MA DMF sea sampling time series data). At the same time, data collected in 2008 by MA DMF indicate additional losses in Provincetown could exceed 10 percent under an unlikely ``worst case scenario'' due to the manner in which the sea sampling data was collected. However, NMFS acknowledges the challenges referenced in the report which states that ``the dramatic difference in v-notch rate detected by location mandates caution when applying any OCC-wide estimates of losses.'' Accordingly, NMFS maintains its intent to expand the 1/8-inch (0.32-cm) v-notch measure to the Outer Cape Area. However, the effective implementation date for Federal Outer Cape Area permit holders is deferred until July 1, 2010, to mitigate the impacts and allow the industry additional time to adjust their business practices to this new requirement. Description of the Public Process The actions set forth in this Final Rule have undergone extensive and open public notice, debate and discussion both at the Commission and Federal levels. 1. Commission Public Process Typically, this public discussion of a potential Federal lobster action begins within the Commission process. Specifically, the Commission's Lobster Board often charges its Plan Development Team or Plan Review Team sub-committees of the Lobster Board - to investigate whether the existing ISFMP needs to be revised or amended to address a problem or need, often as identified in a lobster stock assessment. The Plan Review and Plan Development Teams are typically comprised of personnel from state and federal agencies knowledgeable in scientific data, stock and fishery condition and fishery management issues. If a team or teams conclude that [[Page 37535]] management action is warranted, it will so advise the Lobster Board, which would then likely charge the LCMTs to develop a plan to address the problem or need. The LCMTs most often comprised of industry representatives will conduct a number of meetings open to the public wherein they will develop a plan or strategy, i.e., remedial measures, in response to the Lobster Board's request. The LCMTs then vote on the plan and report the results of their vote back to the Lobster Board. Minutes of the LCMT public meetings can be found at the Commission's website at http://www.asmfc.orgunder the ``Minutes & Meetings Summary'' page in the American Lobster sub-category of the Interstate Fishery Management heading. After receiving an LCMT proposal, the Commission's Lobster Board will often attempt to seek specialized comment from both the Lobster Technical Committee and Lobster Advisory Panel before the proposal is formally brought before the Board. The Technical Committee is comprised of specialists, often scientists, whose role is to provide the Lobster Board with specific technical or scientific information. The Advisory Panel is a committee of individuals with particular knowledge and experience in the fishery, whose role is to provide the Lobster Board with comment and advice. Minutes of the Technical Committee and Advisory Panel can be found at the Commission's website at http:// www.asmfc.org