LEGISLATIVE ALERT 

September 2007

DEPARTMENT OF COMMERCE - National Oceanic and Atmospheric Administration 
50 CFR Part 697    [Docket No. 070717357–7399–01]  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: Advance notice of proposed rulemaking (ANPR).

SUMMARY: NMFS announces that it is considering and seeking public comment on the potential implementation of management measures in the Federal American lobster (Homarus americanus) fishery compatible with recommendations for Federal action as specified in the Atlantic States Marine Fisheries Commission’s (Commission) Interstate Fishery Management Plan for American Lobster (ISFMP). These management measures may include:  implementation of an American lobster maximum size limit (maximum carapace length restriction) in several Lobster Management Areas (LMA); and, revision to the definition of a V-notch for protection of egg-bearing female American lobsters in several LMAs in the Federal American lobster fishery. NMFS is considering implementation of these management measures based on ISFMP actions taken by the Commission in response to recommendations provided in the most recent peer-reviewed lobster stock assessment, completed by the Commission in December 2005. 

DATES: Comments must be received by October 22, 2007.

ADDRESSES: 
Written comments should be sent to Harold Mears, State, Federal and Constituent Programs Office, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930.  Comments may also be sent via e-mail to LobsterJuly07@noaa.gov, via fax (978) 281–9117 or via the Federal e-Rulemaking portal at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:
Robert Ross, Fishery Management Specialist, (978) 281–9234, fax (978) 281–9117, e-mail bob.ross@noaa.gov.

SUPPLEMENTARY INFORMATION: 
Of particular concern in the 2005 assessment report is the SNE stock, where depleted stock abundance and poor recruitment of juvenile lobsters, coupled with high fishing mortality rates, led the stock assessment and peer review panel to recommend additional harvest restrictions for SNE. The SNE stock extends from the waters south of Cape Cod, Massachusetts to the waters off North Carolina, and encompasses all of Lobster Conservation Management Areas (Area) 4, 5, and 6, and part of Area 2 and 3. According to the assessment, in SNE, 61–72 percent of the fishable stock is made up of new entrants into the legal fishery, and the 2005 stock assessment report noted concern that the fishery is too dependent on these new recruits. Based on recommendations in the 2005 assessment report, the Commission, in May 2007, approved Addendum XI that specifies additional lobster management measures for the SNE stock. Addendum XI also includes recommendations for complementary Federal action. Specific to this regulatory action, Addendum XI requires impacted states to implement a maximum legal carapace size limit of 5– 1/4 inches (13.34 centimeters (cm)) in all SNE nearshore Areas (Area 2, 4, 5, and 6) by July 1, 2008.. In addition to the maximum size limit, Addendum XI modifies the current V-notch definition in SNE. Current Federal regulations prohibit possession of a female lobster bearing a V-shaped notch on its tail. The current Federal standard V-notch definition in SNE is defined to be any female lobster that bears a straight sided triangular cut, without setal hairs, a least 1/4 inch (0.64 cm) deep, and tapering to a point. This standard Vnotch definition is likely to protect notched lobsters until they molt or shed their exoskeleton for the first time after notching. Addendum XI modifies the Vnotch definition to be any female lobster that bears a notch or indentation at least 1/8th inch (0.32 cm) deep, with or without setal hairs. This modified Vnotch definition may protect notched lobsters for up to two molt cycles, a period that may span three or more years. This Notice announces and seeks public comment on NMFS’ intention to implement a lobster maximum legal carapace size limits and modified Vnotch definition compatible with those specified in Addendum XI.

Authority: 16 U.S.C. 5101 et seq. Dated: September 14, 2007.

Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

[FR Doc. E7–18589 Filed 9–20–07; 8:45 am]

April 2007

The Lobster Board of the Atlantic States Marine Fisheries Commission has just released Draft Addendum XI to Amendment 3 to the American Lobster Fishery Management Plan for public comment.  This Addendum states that the Southern New England (SNE) stock of lobster is over-fished and depleted and proposes options for rebuilding.  A copy of the Addendum can be found at www.asmfc.org under Breaking News.  
A hearing is immediately scheduled at 101 Hooper Ave, Toms River NJ on Thursday April 19^th at 7 P.M. and we need divers to show up.

Previous ASMFC Addendums (Addendum III to Amendment 3) made it clear that the maximum carapace rule applied only to the commercial fishery and provided a maximum only for female lobsters in Area 4 & 5.  It allowed the states to determine specific rules on issues such as maximum carapace for the recreational fishery. The issue came up recently with federal regulations in Area 4 and 5 and the outcome was that the recreational sport diver could take one female lobster over the maximum (no maximum for male lobsters).

 Addendum XI (4.2.6 Comprehensive SNE Rebuilding Programs) specifically proposes measures apply to all SNE lobster fisheries including NY and NJ and including “recreational harvesters”, and specifically mentions a maximum size of 5 and ј inch for all female lobsters in Areas 2,3,4,5, and 6.  Although I'm not certain of the pounds, a lobster with a 5 and ј carapace would probably be only 4 or 5 pounds.

Points to make:  Addendum 11 should allow states to make a distinction between commercial and recreational fisheries, especially regarding maximum size.  Trophy fish and lobsters are important in the recreational fishery and the recreational fishery should not be strapped with conservation rules designed for the commercial fishery.  Would you tell a recreational hook and line fisherman that he could take a 15 lb Striped Bass, but was forbidden to take a trophy 50 lb Striped Bass?   The recreational sport diver fishery takes so few lobsters compared to the commercial fishery, and the number of trophy lobsters is only a very tiny fraction of that number.  Therefore, allowing a few trophy lobsters for the recreational fisherman will have no impact on conservation!  A maximum size is inappropriate and discriminatory to the recreational fishery.  A possible compromise position would be to convince the ASMFC to go with the Federal rule that allows the recreational fisher to take one female lobster over the maximum size. 

Other issues include mandatory V notching by commercial fishermen, which the NJCDC is not opposing. However, the V notch is reduced to 1/8 inch, which would last through more than one molt and may be difficult to see underwater.  Recreational and commercial fishermen can not take a V notched lobster.

Also threatened are partially closed seasons if a state does not comply in a timely manner.

Comments can be mailed, faxed, or E mailed  to Toni Kerns, Fishery Management Plan Coordinator, Atlantic States Marine Fisheries Commission, 1444 ‘Eye’ Street NW,  #600, Washington, DC 20005.

Fax: (202) 289-6051 or E mail at tkerns@asmfc.org   (subject line: Addendum XI). 
Comments must be submitted no later than May 4.   

July 2006 - Lobster - Maximum Carapace Again Threatens  

The Lobster Board of the Atlantic States Marine Fisheries Commission has released a public information document for draft Amendment 5 to solicit public comment on issues relating to lobsters.  A public information document (PID) is the first step of the formal amendment process. Among the suggested issues is a uniform coast-wide maximum carapace size across all LCMA’s.  Also included is a proposal to amend and reduce the non-trap sector. Is the sport diver part of the non-trap sector?  Formal public hearing are expected in the fall for Amendment 5.  A copy of the PID for Amendment 5 can be found at www.asmfc.org under Breaking News.  

The previous ASMFC amendment (Amendment 3 and specifically Addendum III to Amendment 3)  made it clear that the maximum carapace rule applied only to the commercial fishery and provided a maximum only for female lobsters in Area 4 & 5.  It allowed the states to determine specific rules on issues such as maximum carapace for the recreational fishery.  The PID for Amendment 5 makes no such clarification.  The maximum carapace issue came up recently with federal regulations in Area 4 and 5 and the outcome was that the recreational sport diver could take one female lobster over the maximum (male lobsters had no maximum).  The ASMFC PID makes no distinction between male and female lobsters and suggests a coast-wide (applies both to commercial and recreational) maximum between 5 and 7 inches.  

Points to make:  Amendment 5 should allow states to make a distinction between commercial and recreational fisheries, especially regarding maximum carapace length.  Trophy fish and lobsters are  important in the recreational fishery and the recreational fishery should not be strapped with conservation rules designed for the commercial fishery.  Would you tell a recreational hook and line fisherman that he could take a 15 lb Striped Bass, but was forbidden to take a trophy 50 lb Striped Bass?   The recreational sport diver fishery takes so few lobsters compared to the commercial fishery, and the number of trophy lobsters is only a very tiny fraction of that number.  Therefore, allowing a few trophy lobsters for the recreational fisherman will have no impact on conservation!  A 1/16 inch raise in the minimum carapace length would have a much bigger impact on conservation then a maximum carapace length.  A maximum carapace length is inappropriate and discriminatory to the recreational fishery.  The science of a maximum carapace is questionable!   

Comments can be mailed, faxed, or E mailed  to Toni Kerns, Fishery Management Plan Coordinator, Atlantic States Marine Fisheries Commission, 1444 Eye Street NW, 6^th Floor, Washington, DC 20005.

Fax: (202) 289-6061 or E mail at tkerns@asmfc.org   (subject line: Amendment 5 PID).  Comments must be submitted no later than September 27, 2006.

10/10/05 -   American Lobster Proposed Rule & Comments

Harold C. Mears, Director

State, Federal, and Constituent Programs Office

Northeast Region

National Marine Fisheries Service

One Blackburn Drive

Gloucester, MA  01930

 The following testimony is submitted by the New Jersey Council of Diving Clubs (NJCDC) regarding the proposed rules per Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery as found in the September 2, 2005 Federal Register.  The NJCDC is a regional council of 20 sport diving clubs, some of which are also New York and Pennsylvania clubs.  The sport diver fishery is an established recreational fishery for lobsters in this area for over 50 years with at least 30 commercial dive boats and many more recreational boats.   Sport divers dive on the wrecks, artificial reefs, and other hard u/w habitat in both state and federal waters. 

 The proposal stated its purpose was to implement recommendations made by the Atlantic States Marine Fisheries Commission (ASMFC) for Lobster conservation.  After carefully reading the proposal, it appears that NMFS has gone far beyond what the ASMFC recommended in Section 2 of Addendum III to Amendment 3 to the Interstate Fishery Management Plan for American Lobster.   

The ASMFC rule and recommendation was specific to the commercial fishery!  The proposed federal maximum carapace rule exceeds the request and intent of the ASMFC since it would also apply to the recreational lobster fishery, which the ASMFC rules did not do and did not say or request!  The ASMFC rules allows states to tailor their provisions and make appropriate adjustments for the recreational fishery, which is limited to only 6 lobsters per diver in New Jersey and New York and the lobsters cannot be sold.

The maximum carapace proposal is inappropriate for the recreational fishery!  Would you tell a hook and line fisherman that he could take a 20 lb. Striped Bass, but was forbidden to take a 50 lb. trophy Striped Bass.  The recreational diver should not be saddled with regulations designed specifically for a commercial fishery.  The number of lobsters presently taken above the proposed maximum by sport divers is so few that the proposed maximum carapace length for the recreational fishery would have no impact on conservation.  What is impacted is the recreational diver’s right to take trophy lobsters!

Furthermore, the stated intent of the regulation (p 52352) was to follow the ASMFC regulations, which only mentions a maximum carapace length for female lobsters.  The wording on page 52359 of the Federal Register under 697.20 (Size, harvesting, and landing requirements) says the maximum carapace length applies to all American lobster landed in the EEZ, not just female lobsters.

If the proposed federal rule was imposed on the recreational sport diving fishery, the sport diving clubs and shops would have to go through an education program for sport divers in this area to insure they all know how to identify female lobsters, which again points out the imprudence of imposing commercial rules on a recreational fishery.   The sport diver would have to carry 2 gauges for both a minimum and maximum length.

The proposed maximum carapace regulations are made even more confusing for the recreational diver by the fact that there are two maximum carapace lengths off of New Jersey, 5 and ¼ and 5 and ½  inches.  Many of the dive boats go out of Barnegat Inlet, which is just south of the line splitting these two maximums in the proposed rule.  We would also have to educate the sport divers on the location of that demarcation line in federal waters. 

The sport diving community is a strong supporter of conservation measures and works closely with NJ Marine Fishery Service to monitor lobster and other marine species on the wrecks and artificial reefs off of New Jersey.  The NJCDC would not oppose an increase in the minimum carapace length for lobster which would have a bigger impact on conservation.  But we don’t want regulations that are inappropriate for a recreational fishery, were not requested by the ASMFC for the recreational fishery, and will cause confusion in the recreational fishery.

The NJCDC is requesting that NMFS delete the maximum carapace part of the proposal for the recreational sport diver fishery since it was not requested by the ASMFC, exceeds their recommendations, and is inappropriate for the recreational fishery.  Please allow the individual states to determine landing requirements for lobsters for the recreational fishery. Since NMFS went far beyond what the ASMFC asked it to do, the New Jersey Council of Diving Clubs is respectfully requesting that the comment period be extended and hearings be held.  

Jack Fullmer
Legislative Director

   LEGISLATIVE ALERT - Spearfishing Tuna
9/16/05  
National Marine Fisheries Service is giving the sport diving community an opportunity to make spearfishing for Tuna legal again in federal waters in the Atlantic.  There is a proposal in “The Draft Consolidated HMS FMP And Proposed Rule” under 2.3.3 , Alternative H2 that would  “Authorize speargun fishing gear as a permissible gear type in the recreational Atlantic tuna fishery.
 
If my memory is correct, it was in the early nineties that the HMS Committee proposed banning spearfishing for Tuna.  That committee never asked anyone involved in spearfishing for Tuna to testify before the committee regarding the matter, and no one in the sport diving community knew about the proposal as few people read the Federal Register everyday for fun.   No warning was ever given to the sport diving community about the proposal.  
 
Although it is likely that few tuna will be taken by spearfishermen in this area, it is important that this proposal passes as it could help open doors for the spearfisherman /sport diver, who also has problems with other federal fishery management plans that do not recognize spearfishing equipment as authorized gear. 
 
Please write to: 
National Marine Fisheries Service,
Highly Migratory Species Management Division,
US Department of Commerce,
National Oceanic and Atmospheric Administration,
Silver Spring MD 20910. 

Label it “Comments – Draft Consolidated HMS FMP” and support 2.3.3, Alternative H2 (Authorize speargun fishing gear as a permissible gear type in the recreational Atlantic Tuna Fishery).
 
Remember that unlike other fishing methods, the spearfisherman can see the fish and does not take unwanted species or undersized fish.  There is no bi-catch in spearfishing, and the spearfisherman leaves no lines on the bottom to snag other fish, lobsters or turtles.
 
We need everyone to write because one of the other proposals is to make no changes to authorized gear. The statement is made that speargun landings would be deducted from the Angling category quota.  This could cause some people to write in to oppose it, although it should not really have any impact because the number of Tuna taken would be insignificant.  The deadline for comments is the middle of October.
 
Jack Fullmer
+ + AND Letter Jack sent in + +
9/16/05
 
National Marine Fisheries Service
Highly Migratory Species Management Division
1315 East-West Highway                                                                  
Silver Spring, MD  20910

Comments Draft Consolidated HMS FMP
  
                The following testimony is submitted by the New Jersey Council of Diving Clubs (NJCDC) regarding the proposed rule and draft consolidated Atlantic Highly Migratory Species Fishing Management Plan.  The NJCDC is a regional council of 20 sport diving clubs, some of which are New York and Pennsylvania clubs.
 
In Chapter 2 (Summary of the Alternate Management Program Structure of the DEIS for the Consolidated HMS FMP) under 2.3.3(Authorized Fishing Gear),  the NJCDC strongly supports alternative H2 (Authorize speargun fishing gear as a permissible gear type in the recreational Atlantic Tuna Fishery – Preferred Alternative).
 
The NJCDC applauds NMFS for this proposal. This will help right a wrong that was done to the sport diver fishery a number of years ago.  If my memory is correct, it was in the early 90s that the HMS Committee proposed banning spearfishing for tuna.  That committee never asked anyone involved in spearfishing to testify before the committee regarding the matter, and no one in the sport diving community knew about the proposal, as few people read the Federal Register everyday for fun.  No warning was ever given to the sport diving community about the proposal, and I only heard about it months after it passed.   At that time, I got the impression that the sport diver fishery was targeted just because it was small and used different equipment. 
 
The number of tuna taken by spearfishermen at that time was very few (an insignificant amount), and was primarily located in areas of the south mid-Atlantic and Florida.  It is very difficult to get within range of a tuna, so the number of fish taken will be negligible.
 
Unlike other fishing methods, the spearfisherman can see the fish and does not take unwanted species or undersized fish.  There is no bi-catch in spearfishing, and the spearfisherman leaves nothing on the bottom to snag other fish, lobsters or turtles.   Blue-water spearfishing is legal and highly regarded on the West Coast.  A number of documentaries have been made on this physically demanding sport.
 
The NJCDC would also like to see other Highly Migratory Species eventually open to spearfishing.  Again, the number of fish taken would be negligible.
 
The NJCDC wants to clarify that “recreational” would include charter dive boats that support the recreational sport diver and spearfisherman.    There is some confusion in Federal regulations that considers charter boats commercial.  If “recreational” only means diving from private boats, then we would support Alternative H3 in order to include charter dive boats.  However, our organization represents recreational sport divers and we are not pushing commercial spearfishing.  We prefer Alternative H2 provided the recreational diver will be allowed to be transported to the site by a charter dive boat. 
 
Sincerely

Jack Fullmer,  Legislative Committee
New Jersey Council of Diving Clubs