[Federal Register Volume 67, Number 86 (Friday, May 3, 2002)]
[Rules and Regulations]
[Pages 22359-22362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11027]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 011015252-2081-02; I.D. 053001E]
RIN 0648-AO23


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Golden Crab Fishery off the Southern Atlantic States; Amendment 3

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 3 to the 
Fishery Management Plan for the Golden Crab Fishery of the South 
Atlantic Region (FMP). This rule extends through December 31, 2002, the 
allowed use of cable for a mainline attached to golden crab traps; 
clarifies the size of the required escape panel or door on a golden 
crab trap; removes the historical catch requirement for renewing a 
commercial vessel permit for golden crab; allows the issuance of a 
commercial vessel permit for golden crab for the southern zone for a 
vessel that held a valid permit for the southern zone in October 2000 
but did not meet the 5,000-lb (2,268-kg) requirement for renewal in the 
following year; allows a vessel with a documented length overall 
greater than 65 ft (19.8 m) that is permitted to fish in the southern 
zone to fish also in the northern zone; allows two new commercial 
vessel permits to be issued for the northern zone; provides that a 
commercial vessel permit will not be renewed if the Regional 
Administrator (RA) does not receive an application for renewal by June 
30 each year; liberalizes the allowed increase in the size of a 
permitted vessel; creates a small-vessel sub-zone in the southern zone 
in which only permitted vessels 65 feet (19.8 m) or less in length may 
fish for golden crab but may not do so in the remainder of the southern 
zone; and adds measures related to the proposed sub-zone to the list of 
management measures that may be modified via the FMP's framework 
procedure for regulatory adjustments. The intended effect is to protect 
the golden crab resource while allowing development of the fishery that 
is dependent on that resource.

DATES: This final rule is effective June 3, 2002, except for the 
amendments to Sec. 622.17(b)(1) and (2) that are effective May 3, 2002.

ADDRESSES: Written comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this rule should be submitted to Robert Sadler, Southeast Regional 
Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk 
Officer).

FOR FURTHER INFORMATION CONTACT: Dr. Peter J. Eldridge, Southeast 
Regional Office, NMFS; phone: 727-570-5305; fax: 727-570-5583; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: The golden crab fishery off the southern 
Atlantic states is managed under the FMP. The FMP was prepared by the 
South Atlantic Fishery Management

[[Page 22360]]

Council (Council) and is implemented under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) by regulations at 50 CFR part 622.
    On June 12, 2001, NMFS announced the availability of Amendment 3 
and requested comments on it (66 FR 31608); no comments were received. 
NMFS partially approved Amendment 3 on September 12, 2001; the estimate 
of maximum sustainable yield was disapproved. NMFS published a proposed 
rule to implement the approved portions of Amendment 3 on November 27, 
2001 (66 FR 59221) and requested comments on the proposed rule. The 
background and rationale for the measures in Amendment 3 and the 
proposed rule are contained in the preamble to the proposed rule and 
are not repeated here.

Comments and Responses

    A total of nine comments were received on the proposed rule. The 
comments and NMFS' responses are provided below.
    Comment 1: A vessel owner opposed the removal of the 5,000-lb 
(2,268-kg) harvest requirement for renewing the biannual permit. In 
addition, he opposed granting permits to permit holders in the southern 
zone who had not met the 5,000-lb (2,268-kg) catch requirement by 
October 2000, but who had met the catch requirement in October 1998. He 
stated that these measures would benefit fishermen who had chosen not 
to participate in the fishery. He also opposed the provision that would 
allow up to a 20 percent increase in vessel size from the vessel size 
on the original permit. He concluded by stating that a maximum 
sustainable yield (MSY) or guideline harvest level should be 
established for this fishery before fishing power is increased in the 
southern zone.
    Response: During the 1998-2000 period, a large vessel set numerous 
traps over traps that had been set by smaller vessels. The traps became 
entangled and because the smaller vessels lacked gear that could 
retrieve the entangled traps, they lost their traps. Consequently, the 
smaller vessels did not participate further in the fishery because they 
were afraid that they would lose additional gear and, thus, were not 
able to land at least 5,000 lb (2,268 kg) of golden crab by October 
2000. Vessel owners notified the Council that they would participate in 
the fishery if a sub-zone was established where only smaller vessels 
could fish. The approval of Amendment 3, which removes the 5,000-lb 
(2,268-kg) catch requirement, also establishes a sub-zone where smaller 
vessels can fish. This should ensure a more constant supply of golden 
crab which in turn should increase revenues for this fishery. In 
addition, the Council concluded that because of the low number of 
current participants, the minimum required harvest level is no longer 
necessary. The Council decided to ease the restriction on vessel size 
because such a measure would enhance vessel safety and could result in 
improved vessel operations which could reduce costs of fishing. The 
Council believes that increasing vessel capacity will not jeopardize 
the continued viability of the fishery.
    Amendment 3 proposed an MSY range of 4 to 12 million lb (1.8 to 5.4 
million kg). NMFS disapproved the estimate because the best scientific 
information available indicated that the range was too high. For 
reasons set forth in the response to Comment 2 below, NMFS believes 
that the proposed MSY estimate, if implemented, could have led to 
overfishing of the golden crab resource. NMFS and the Council will 
continue to monitor landings and other biological information on this 
fishery. As soon as sufficient information becomes available, an 
improved MSY estimate will be implemented.
    Comment 2: Two fishermen supported the proposed MSY estimate and 
were disappointed that NMFS had disapproved that measure.
    Response: The fishery is conducted only in the southern and middle 
zones. The best scientific information available for these zones 
indicates that this area can support an annual harvest of somewhat less 
than 700,000 pounds (317,515 kg). The northern zone, which is 
equivalent in size to the combined southern and middle zones, lacks 
catch data to derive an MSY proxy. Nonetheless, information in the 
original FMP indicates that the MSY proxy for the northern zone could 
be between 0.54 and 1.65 million pounds (0.25 and 0.75 million kg). 
Adding the two sets of estimates together indicates an MSY proxy of 
between 1.25 and 2.35 million pounds (0.57 and 1.07 million kg). This 
information constitutes the best scientific information available and 
indicates that the true MSY for the combined areas most likely is 
between l.5 and 2.5 million pounds (0.68 and 1.13 million kg).
    Since one large vessel has the capability of landing up to 3 
million pounds annually, one or two larger vessels together with 
existing participants could have overfished the golden crab resource if 
the proposed MSY proxy of 4 to 12 million pounds (1.8 to 5.4 million 
kg) had been approved. Consequently, NMFS disapproved the proposed MSY 
proxy to minimize the possibility of overfishing this resource.
    Comment 3: Six comments received on the proposed rule supported 
implementation of Amendment 3. In addition, these comments requested 
that NMFS waive the Administrative Procedure Act's (APA's) 30-day 
delayed effectiveness for the provision that would allow vessels in the 
southern zone to fish in the northern zone without losing their permit 
to return and fish in the southern zone. The comments stated that 
waiving the 30-day delayed effectiveness would allow larger vessels to 
transfer operations immediately to the northern zone which would reduce 
vessel conflict in the southern zone. Also, the comments noted that 
reduced conflict in the southern zone would result in safer fishing 
conditions.
    Response: NMFS agrees with these comments and is waiving the APA's 
30-day delayed effectiveness for that provision that would allow 
vessels to transfer their operations to the northern zone but permit 
them to return to the southern zone without penalty.

Changes From the Proposed Rule

    In Sec. 622.17(d), the first sentence is revised slightly to 
maintain consistency with Sec. 622.4(h).
    In the last sentence of Sec. 622.38(h), the cross reference to 
paragraph (i) is corrected to read paragraph (h). The erroneous cross 
reference was introduced in a prior rulemaking.
    In Secs. 622.1, 622.4, 622.6, and 622.40, the phrase, 
``35 deg.15.3' N. lat.'', is replaced with the phrase, ``35 deg.15.19' 
N. lat.'', to correct the latitude of the Cape Hatteras Light, 
consistent with a recent relocation of that structure.

Classification

    NMFS has determined that Amendment 3, except for the disapproved 
MSY, is necessary for the conservation and management of the golden 
crab fishery and that it is consistent with the national standards of 
the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel of Advocacy of the Small Business 
Administration when this rule was proposed that it would not have a 
significant economic impact on a substantial number of small entities. 
As a result, no regulatory flexibility analysis was required and none 
was prepared. No comments were received

[[Page 22361]]

regarding the economic impact of this rule.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection of 
information displays a currently valid OMB control number.
    This rule contains but does not change two collection-of-
information requirements subject to the PRA; namely, the application 
for a permit for the South Atlantic golden crab fishery and the 
submission of fishing vessel logbooks in that fishery. These 
collections of information have been approved by OMB under control 
numbers 0648-0205 and 0648-0016, respectively. The public reporting 
burdens for these collections of information are estimated at 20 
minutes for each permit application and 10 minutes for each fishing 
vessel logbook submission. The estimates of public reporting burdens 
for these collections of information include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates or any other aspects of the collections of information, 
including suggestions for reducing the burdens, to NMFS and OMB (see 
ADDRESSES).
    Under 5 U.S.C. 553(d)(3), the Assistant Administrator for 
Fisheries, NOAA finds for good cause that a 30-day delay in the 
effective date of Sec. 622.17(b)(1) of this rule is unnecessary. 
Furthermore, under 5 U.S.C. 553(d)(1) a 30-day delay in the effective 
date of Sec. 622.17(b)(2) is also unnecessary because Sec. 622.17(b)(2) 
relieves a restriction by allowing a vessel greater than 65 ft (19.8m) 
in documented length overall that is permitted to fish in the southern 
zone to fish also in the northern zone. Current regulations restrict 
such vessels to fishing in the southern zone only. In addition, 
Sec. 622.17(b)(2) is expected to reduce user conflict in the more- 
congested southern zone by allowing some shift of fishing effort to the 
northern zone. The revision of Sec. 622.17(b)(1) provided in this rule 
is necessary to eliminate regulatory text that would otherwise conflict 
with the provision of Sec. 622.17(b)(2) that relieves the regulatory 
restriction on authorized fishing zones. Section 622.17(b)(1) of this 
rule does not contain any new regulatory requirements; it eliminates 
text that would otherwise result in internal inconsistency in the 
regulations and restates the description of the three fishing zones for 
the convenience of the reader. Additionally, if the 30-day delay in 
effectiveness for Sec.  622.17(b)(1) is not waived, the waiver for 
Sec. 622.17(b)(2) will be ineffective. These reasons constitute good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness for Sec. 622.17(b)(1).

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: April 26, 2002.
Willioam T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec.  622.7, paragraph (z) is revised to read as follows:


Sec. 622.7  Prohibitions.

* * * * *
    (z) Fish for or possess golden crab in or from a fishing zone or 
sub-zone of the South Atlantic EEZ other than the zone or sub-zone for 
which the vessel is permitted or authorized, as specified in 
Sec. 622.17(b).
* * * * *

    3. Section 622.17 is revised to read as follows:


Sec. 622.17  South Atlantic golden crab controlled access.

    (a) General. In accordance with the procedures specified in the 
Fishery Management Plan for the Golden Crab Fishery of the South 
Atlantic Region, initial commercial vessel permits have been issued for 
the fishery. All permits in the fishery are issued on a fishing-year 
(calendar-year) basis. No additional permits may be issued except as 
follows:
    (1) For the southern zone. (i) Upon application, the RA will 
reissue a permit for the southern zone for a vessel that held a valid 
permit for that zone in October 2000 but did not meet the 5,000-lb 
(2,268-kg) requirement for renewal in the following year.
    (ii) An application for a permit under paragraph (a)(1) of this 
section must be received by the RA no later than July 2, 2002.
    (2)For the northern zone. (i) The RA will issue up to two new 
vessel permits for the northern zone. Selection will be made from the 
list of historical participants in the South Atlantic golden crab 
fishery. Such list was used at the October 1995 meeting of the South 
Atlantic Fishery Management Council and was prioritized based on pounds 
of golden crab landed, without reference to a specific zone. 
Individuals on the list who originally received permits will be deleted 
from the list.
    (ii) The RA will offer in writing an opportunity to apply for a 
permit for the northern zone to the individuals highest on the list 
until two accept and apply in a timely manner. An offer that is not 
accepted within 30 days after it is received will no longer be valid.
    (iii) An application for a permit from an individual who accepts 
the RA's offer must be received by the RA no later than 30 days after 
the date of the individual's acceptance. Application forms are 
available from the RA.
    (iv) A vessel permit for the northern zone issued under paragraph 
(a)(2) of this section, and any successor permit, may not be changed to 
another zone. A successor permit includes a permit issued to that 
vessel for a subsequent owner and a permit issued via transfer from 
that vessel to another vessel.
    (b) Fishing zones--(1) Designation of fishing zones. The South 
Atlantic EEZ is divided into three fishing zones for golden crab as 
follows:
    (i) Northern zone--the South Atlantic EEZ north of 28 deg. N. lat.
    (ii) Middle zone--the South Atlantic EEZ from 28 deg. N. lat. to 
25 deg. N. lat.
    (iii) Southern zone--the South Atlantic EEZ south of 25 deg. N. 
lat.
    (2) Authorization to fish in zones. Each vessel permit indicates 
one of the zones specified in paragraph (b)(1) of this section. A 
vessel with a permit to fish for golden crab in the northern zone or 
the middle zone may fish only in that zone. A vessel with a documented 
length overall greater than 65 ft (19.8 m) with a permit to fish for 
golden crab in the southern zone may fish in that zone, consistent with 
the provisions of paragraph (b)(3) of this section, and, through May 3, 
2005, may also fish in the northern zone. A vessel may possess golden 
crab only in a zone in which it is authorized to fish, except that 
other zones may be transited if the vessel notifies NMFS, Office of 
Enforcement, Southeast Region, St. Petersburg, FL, by telephone (727-
570-5344) in advance and does not fish in a zone in which it is not 
authorized to fish.
    (3) Small-vessel sub-zone. Within the southern zone, a small-vessel 
sub-zone is established bounded on the north by

[[Page 22362]]

24 deg.15' N. lat., on the south by 24 deg.07' N. lat., on the east by 
81 deg.22' W. long., and on the west by 81 deg.56' W. long. No vessel 
with a documented length overall greater than 65 ft (19.8 m) may fish 
for golden crab in this sub-zone, and a vessel with a documented length 
overall of 65 ft (19.8 m) or less that is permitted for the southern 
zone may fish for golden crab only in this sub-zone.
    (4) Procedure for changing zones. (i) Upon request from an owner of 
a permitted vessel, the RA will change the zone specified on a permit 
from the middle or southern zone to the northern zone. No other changes 
in the zone specified on a permit are allowed, except as specified in 
paragraph (b)(4)(ii) of this section. An owner of a permitted vessel 
who desires a change to the northern zone must submit his/her request 
with the existing permit to the RA.
    (ii) Through May 3, 2005, upon request, the RA will change a vessel 
permit back to the southern zone for an owner of a vessel, or the 
subsequent owner of a vessel, whose permit was changed from the 
southern zone to the northern zone provided that the documented length 
overall of the vessel to be used in the southern zone is not more than 
20 percent greater than the vessel whose permit was originally changed 
from the southern zone to the northern zone.
    (c) Transferring permits between vessels--(1) Procedure for 
transferring. An owner of a vessel who desires a golden crab permit may 
request that NMFS transfer an existing permit or permits to his or her 
vessel by returning an existing permit or permits to the RA with an 
application for a permit for the replacement vessel.
    (2) Vessel size limitations on transferring. (i) To obtain a permit 
for the middle or southern zone via transfer, the documented length 
overall of the replacement vessel may not exceed the documented length 
overall, or aggregate documented lengths overall, of the replaced 
vessel(s) by more than 20 percent. The owner of a vessel permitted for 
the middle or southern zone who has requested that NMFS transfer that 
permit to a smaller vessel (i.e., downsized) may subsequently request 
NMFS transfer that permit to a vessel of a length calculated from the 
length of the permitted vessel immediately prior to downsizing.
    (ii) There are no vessel size limitations to obtain a permit for 
the northern zone via transfer.
    (d) Permit renewal. NMFS will not renew a commercial vessel permit 
for South Atlantic golden crab if the permit is revoked or if the RA 
does not receive a required application for renewal within 6 months 
after the permit's expiration. See Sec. 622.4(h) for the applicable 
general procedures and requirements for permit renewals.

    4. In Sec. 622.38, the last sentence of paragraph (h) is revised to 
read as follows:


Sec. 622.38  Landing fish intact.

* * * * *
    (h) * * * For the purpose of this paragraph, a vessel is in transit 
through the South Atlantic EEZ when it is on a direct and continuous 
course through the South Atlantic EEZ and no one aboard the vessel 
fishes in the EEZ.

    5. In Sec. 622.40, the first sentence of paragraph (b)(3)(ii)(B) 
and paragraph (d)(2)(ii) are revised to read as follows:


Sec. 622.40  Limitations on traps and pots.

* * * * *
    (b) * * *
    (3) * * *
    (ii) * * *
    (B) A golden crab trap constructed of material other than webbing 
must have an escape panel or door measuring at least 11 7/8 by 11 7/8 
inches (30.2 by 30.2 cm), located on at least one side, excluding top 
and bottom. * * *
* * * * *
    (d) * * *
    (2) * * *
    (ii) Rope is the only material allowed to be used for a buoy line 
or mainline attached to a golden crab trap, except that wire cable is 
allowed for a mainline through December 31, 2002.

    6. In Sec. 622.48, paragraph (g) is revised to read as follows:


Sec. 622.48  Adjustment of management measures.

* * * * *
    (g) South Atlantic golden crab. Biomass levels, age-structured 
analyses, MSY, ABC, TAC, quotas (including quotas equal to zero), trip 
limits, minimum sizes, gear regulations and restrictions, permit 
requirements, seasonal or area closures, sub-zones and their management 
measures, time frame for recovery of golden crab if overfished, fishing 
year (adjustment not to exceed 2 months), observer requirements, 
authority for the RA to close the fishery when a quota is reached or is 
projected to be reached, definitions of essential fish habitat, and 
essential fish habitat HAPCs or Coral HAPCs.
* * * * *


Secs. 622.1, 622.4, 622.6, 622.40  [Amended]

    7. In addition to the amendments set forth above, in 50 CFR part 
622, remove the phrase, ``35 deg.15.3' N lat.'' and add, in its place, 
the phrase, ``35 deg.15.19' N. lat.'' in the following places:
    (a) Section 622.1, in footnote 4 of Table 1;
    (b) Section 622.4(a)(2)(vi);
    (c) Section 622.6(b)(1)(i)(B); and
    (d) Section 622.40(b)(3)(i).
[FR Doc. 02-11027 Filed 5-2-02; 8:45 am]
BILLING CODE 3510-22-S