[Federal Register Volume 67, Number 119 (Thursday, June 20, 2002)]
[Proposed Rules]
[Pages 41936-41950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15595]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020531136-2136-01; I.D. 041802C]
RIN 0648-AP76


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic Deep-
Sea Red Crab Fishery; Atlantic Deep-Sea Red Crab Fishery Management 
Plan

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement the Atlantic Deep-Sea 
Red Crab Fishery Management Plan (FMP) developed by the New England 
Fishery Management Council (Council). This proposed rule would 
establish: A limited access program for the directed fishery; a target 
total allowable catch (TAC) level; a Days-at-Sea (DAS) allocation 
effort control program; permitting and reporting requirements, 
including an Interactive Voice Response (IVR) system for limited access 
vessels; trip limits and incidental harvest allowances; trap/pot 
limits; processing at sea restrictions; and a framework adjustment 
process among other measures. The purpose of this proposed action is to 
implement permanent management measures for the Atlantic deep-sea red 
crab (red crab)(Chaceon quinquedens) fishery pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
and the FMP and to prevent overfishing of the red crab resource.

DATES: Comments must be received on or before 5 p.m., local time, on 
July 23, 2002.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Red Crab FMP.'' Comments also may be sent via facsimile 
(fax) to (978) 281-9135. Comments will not be accepted if submitted via 
e-mail or Internet.
    Comments regarding the collection-of-information requirements 
contained in this proposed rule should be sent to the Regional 
Administrator and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA 
Desk Officer).
    Copies of the FMP, its Regulatory Impact Review (RIR) and the 
Initial Regulatory Flexibility Analysis (IRFA), and the Final 
Environmental Impact Statement (FEIS) are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, The Tannery - Mill 2, Newburyport, MA 01950.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, 978-281-9272, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The FMP was developed by the Council in response to concerns that 
overfishing was occurring due to increased landings and increasing 
participation and interest in the red crab fishery. Prior to 1970, 
there was no known fishery for Atlantic deep-sea red crab, although 
there was some incidental catch of red crab in other fisheries. In the 
early 1970s, small markets opened up for the species, spurring one or 
two vessels to attempt to fish directly for red crab. Markets for this 
species fluctuated over the next decade or so, as did attempts at new 
techniques to improve the harvest, preservation, and processing of the 
crabs. Throughout the 1980s, there was a fairly consistent fishery for 
red crab, with known landings annually averaging over 5.5 million lb 
(2,495 mt). In the early 1990s, landings fluctuated, but they have been 
steadily increasing since about 1995. Industry reports suggest that 
landings exceeded 7 million lb (3,175.2 mt) in 2000.
    In late 1999, faced with increasing landings and increased interest 
in the fishery from potential new entrants, a group of fishermen 
requested that the Council develop a Red Crab FMP. In November 1999, 
the Council voted to begin development of the FMP.
    In January 2000, at the recommendation of its Red Crab Committee, 
the Council voted to establish a control date for the red crab fishery, 
in case the Council chose to differentiate historic participants in the 
red crab fishery from new, speculative entrants. The Council also 
intended that a control date serve as a disincentive to any new vessels 
considering moving to New England to begin fishing for red crab.
    On February 2, 2000, the Council published in the Federal Register 
a Notice of Intent to Prepare an

[[Page 41937]]

Environmental Impact Statement (EIS), officially beginning the 
Council's FMP scoping process (65 FR 4941). The Council hosted two 
scoping meetings, well attended by the red crab industry and other 
interested parties, at which there was general support for the 
development of an FMP, including consideration of management measures 
establishing a limited entry program, a minimum allowable crab size, a 
male-crab only fishery, a processing-at-sea prohibition, and reasonable 
trap/pot limits.
    The Council established March 1, 2000, as the control date for the 
red crab fishery through publication in the Federal Register (65 FR 
11029) on that date.
    In November 2000, the Council was notified that at least two new 
vessels had announced their intentions to relocate to New England from 
other parts of the country to fish for red crab. The existing members 
of the fishery and the Council became concerned that the additional 
fishing power and effort represented by these new entrants could 
jeopardize the sustainability of the resource before the FMP could be 
developed and implemented.
    In January 2001, faced with an increase in the number of vessels 
targeting the red crab resource, the Council requested that the 
Secretary of Commerce (Secretary) take emergency action to prevent 
overfishing in the red crab fishery while the Council continued to 
develop an FMP. NMFS, on behalf of the Secretary, determined that the 
existing level of exploitation and the likelihood of substantial 
increases in total exploitation in the area north of Cape Hatteras, NC, 
presented serious conservation problems necessitating emergency action 
to prevent overfishing. On May 8, 2001, NMFS published emergency 
regulations designed to prevent overfishing, effective May 18 through 
November 14, 2001 (66 FR 23182).
    On July 23, 2001, to address comments it received from the 
industry, NMFS amended the emergency regulations by publishing a 
revision of the conversion factor used to determine the whole weight 
equivalent of partially processed or butchered crabs (66 FR 38165). The 
emergency regulations were extended for a second 180-day period, from 
November 15, 2001 through May 14, 2002 (66 FR 56781).
    The threat of overfishing the red crab resource is the primary 
concern requiring management attention, particularly if additional 
vessels enter the fishery. Maximum sustainable yield (MSY) is estimated 
at 6.24 million lb (2,830.4 mt) for the male-only red crab fishery. 
Commercial landings of red crab have exceeded this level several times 
since the development of the fishery. Overfishing is of particular 
concern due to the nature of the species; red crabs are typically slow-
growing and major recruitment events are believed to rarely occur.
    Historically, a small number of vessels have achieved landings in 
excess of MSY. The five vessels participating in the directed red crab 
fishery prior to 2000, averaged 96 ft (29.3 m) in length, fished an 
average of 544 pots, and had the capacity to land an average of 
approximately 78,000 lb (35,380 kg) of red crab per trip. This suggests 
that these five vessels alone can exceed the original estimate of MSY.

Status of the Stocks

    The MSY estimate was calculated based on a 1974 NMFS survey of the 
red crab resource and the resulting stock assessment (Serchuk, 1977). 
Several assumptions underlie the calculation of MSY: (1) That the 
fishery continues to retain and land only male crabs larger than 4 
inches (10.2 cm); that the natural mortality rate for red crabs is 
0.15; and (3) that the management unit extends to Cape Hatteras, NC. 
The status of the red crab fishery will be updated if and when new 
scientific data are obtained.

Overfishing Definition

    The FMP proposes an overfishing definition that considers both the 
rate of exploitation and the condition of the stock. Overfishing would 
be defined as any rate of exploitation that caused the ratio of current 
exploitation to an idealized exploitation under MSY conditions to 
exceed 1.0. The FMP includes several methods that could be used to 
define idealized exploitation, depending on the type of data available.
    The red crab stock would be considered to be in an overfished 
condition if any one of the following three conditions is met:
    Condition 1 -- The current biomass of red crab in the FMP 
management unit is below \1/2\ Bmsy.
    Condition 2 -- The annual fleet average catch per unit effort 
(CPUE), measured as marketable crabs landed per trap haul, continues to 
decline below a baseline level for 3 or more consecutive years.
    Condition 3 -- The annual fleet average CPUE, measured as 
marketable crabs landed per trap haul, falls below a minimum threshold 
level in any single year.

Optimum Yield (OY)

    OY would be specified at 95 percent of MSY, or 5.928 million lb 
(2,689 mt). This approach is intended to incorporate future changes to 
MSY into the estimate of OY, to account for any uncertainty about the 
status or vulnerability of the resource or the current levels of 
fishing effort.

Management Unit

    The boundaries of the management unit would be limited to the 
waters north of 35 15.3' N. lat., bounded by the coastline of the 
continental United States in the west and north, and the Hague Line and 
seaward extent of the U.S. Exclusive Economic Zone (EEZ) in the east. 
The proposed boundaries reflect the traditional extent of the red crab 
fishery in the Northeast United States, are consistent with prior 
action taken by the Secretary (the Emergency Regulations), incorporate 
a well-known bio-geographic boundary (Cape Hatteras, NC), and are 
consistent with other New England Council FMPs.

Fishing Year

    The fishing year would begin on March 1 of each year, which 
reflects traditional fishing practices prior to times of relatively 
higher effort and landings. The timing of the fishing year is 
anticipated to reduce the margin of error associated with projections 
of landings made about future fishing years. It also reflects the time 
after which the cumulative landings for the first 6 months of the 
fishery are expected to be the highest, which would reduce the margin 
of error associated with projected landings during the second half of 
the year.

Permitting Requirements

    The owner of any commercial vessel who wishes to fish for, catch, 
possess, transport, land, sell, trade, barter, butcher or partially 
process at sea red crab in or from the red crab management unit would 
be required to obtain a Federal red crab permit. Two types of Federal 
permits would be required: (1) A limited access red crab permit would 
be required for vessels to participate in the directed fishery; this 
permit would be issued only to vessels that meet specified eligibility 
criteria; and (2) a red crab incidental catch permit would be required 
in order for any vessel to land an incidental catch of red crabs up to 
500 lb (226.8 kg) per fishing trip. All vessels would be eligible for 
this permit. Vessels issued the limited access permit would also be 
allowed to fish under the red crab incidental catch rules if they had 
not declared their intent to use a red crab DAS.
    Owners of vessels issued a limited access red crab permit would, 
upon permit renewal beginning with the

[[Page 41938]]

second fishing year, be able to declare out of the red crab fishery for 
the following fishing year by submitting a binding declaration to the 
Regional Administrator at least 180 days prior to the following fishing 
year. NMFS would presume that a vessel owner intends to fish the 
following fishing year unless such a declaration is received. The 
requirement for owners of vessels to declare if their intent is not to 
fish prior to each fishing year is necessary in order to facilitate any 
needed adjustment of the annual allocation of DAS per vessel, which is 
based on the expected number of vessels that would actually participate 
in the fishery. A vessel owner who declared out of the fishery for the 
following year would have to wait until the next year's permit renewal 
application process to declare back into the fishery for the next full 
fishing year.
    Vessel owners would have 180 days from the effective date of the 
regulations to apply for their initial limited access permits. Owners 
who failed to renew their permit for any fishing year, except if they 
declared their intent not to participate, would be ineligible to renew 
their permits in subsequent years.
    As part of the application for a limited access red crab permit, 
vessel owners would have to declare the maximum number of traps/pots 
they use per string and the maximum number of strings they employ, such 
that the product of the maximum number of traps/pots per string and the 
maximum number of strings declared is no more than 600 traps/pots.
    Dealers who purchase red crab product from any vessel would be 
required to obtain a Federal dealer permit. Red crabs harvested from 
the red crab management unit could only be sold by a federally 
permitted vessel to federally permitted dealers.
    Operators of vessels issued a Federal red crab vessel permit would 
be required to obtain a Federal operator permit. An individual who 
already holds an operator permit for another federally managed fishery 
would not need to reapply, since there is no qualification or test for 
this permit.

Qualification Criteria for Limited Access

    Subject to the restrictions defined in this proposed rule, a vessel 
could qualify for a limited access red crab permit if the vessel 
demonstrated that its average landings per year of red crabs during the 
3-year period prior to the March 1, 2000, control date were >250,000 lb 
(113,398 kg).

Reporting Requirements

    This proposed rule would extend the existing Northeast Region 
Vessel Trip Report (VTR) system to vessels with red crab permits. This 
would require the owner or operator of vessels issued either a limited 
access or incidental catch permit to submit monthly reports on fishing 
effort, landings, and discards within 15 days of the end of the 
reporting month. Both limited access and incidental catch vessels would 
be required to complete and submit VTRs for all fishing trips, 
regardless of whether they land any red crab.
    Owners or operators of vessels participating in the limited access 
fishery would also be required to report their total red crab landings 
through an IVR system within 24 hours of the termination of any trip 
that lands red crab.
    Dealers issued a red crab dealer permit would be required to submit 
a weekly dealer report on forms provided by or approved by the Regional 
Administrator. If authorized in writing by the Regional Administrator, 
the form(s) could be submitted electronically or through other media. 
The report would be provided weekly, and would have to be postmarked 
and received within 16 days after the end of each reporting week. A 
negative report would be required even if there were no crabs 
purchased.

Target TAC

    An annual specifications process would provide the mechanism to 
make adjustments to the amount of target TAC available to the fishery 
and the number of DAS to be allocated to each vessel authorized to 
participate in the limited access fishery. Specifications would also 
include the specification of OY and/or adjustments to trip/possession 
limits. The Council's Plan Development Team (PDT) would review the most 
recent landings and effort data on an annual basis in order to provide 
the information necessary for the Council to recommend the 
specifications for the following fishing year. Each fishing year, the 
landings in the red crab fishery would be counted against a target TAC. 
The target TAC would be set annually through the annual specification 
process at a level equal to the most current estimate of OY for the 
fishery. The target TAC would be adjusted based on any projected 
overage or underage expected for the current fishing year. For example, 
when the Council is setting the annual specifications for the following 
fishing year, if OY is 5.928 million lb (2,689 mt) and the Council 
projects that 6.75 million lb (3,062 mt) will be harvested in the 
current fishing year (a 822,000 lb (372,853 kg) overage), then the 
target TAC for the following year could be set at 5.106 million lb 
(2,316 mt). If, on the other hand, the Council projects that only 5.25 
million lb (2,381 mt) will be harvested in the current fishing year (a 
678,000 lb (307,536 kg) overage), then the target TAC could be set at 
6.606 million lb (2,996 mt). The target TAC for the first full fishing 
year would be 5.928 million lb (2,689 mt) of whole red crab or its 
equivalent.

Allocations of Red Crab DAS

    Along with the annual target TAC, the annual specification process 
would involve calculation of the total DAS that could be utilized by 
the directed fishery, based on average catch per DAS from the previous 
year. Total DAS would be allocated equally to all vessels issued a 
limited access red crab permit, divided by the number of vessels that 
intend to participate in the fishery for the fishing year. Any unused 
DAS allocated to a vessel in one fishing year could be carried over to 
the next fishing year, up to a maximum of 10 DAS or 10 percent of the 
total allocated DAS, whichever is less. The partial end of the year DAS 
carry-over is intended to ensure that at least some unused fishing 
effort would not be wasted, while providing no incentive to hoard DAS. 
This measure would also limit the potential annual fishing capacity to 
roughly 10 percent above the baseline. The FMP allocates only 130 DAS 
to each limited access vessel for the fishing year that ends February 
28, 2003, because the FMP, if approved, would not go into effect until 
well after the start of the fishing year. However, if the FMP is 
approved, the management measures would not be effective for a full 
year. Because there would be a hiatus between the expiration of the 
emergency rule described above and the implementation of the FMP and 
implementing regulations, if approved, the FMP specifies the method by 
which vessel DAS allocations would be adjusted (see Initial 
Implementation Year, below).
    From March 1, 2003, through February 29, 2004, each participating 
vessel would be allocated 156 DAS, unless this allocation were changed 
because of one or more vessel owners declaring out of the fishery or 
under the FMP specification process. The allocation of 156 DAS per 
participating vessel would remain the baseline unless modified through 
the specification process.
    A DAS would be counted as a whole day (24 hours). Any portion of a 
day on

[[Page 41939]]

which a vessel is out of port would count as a full DAS. For example, 
if a vessel embarked on a fishing trip at 11:00 p.m. on June 1, that 
day of departure would count as one DAS. If it returned from the trip 
at 1:00 a.m. on June 10, that day of return would also count as one 
DAS. The vessel would have used 10 DAS during the fishing trip, rather 
than the 8.0833 DAS that would be counted as used if DAS were counted 
on an hourly basis.

DAS Allocation for Initial Implementation Year

    During the initial year of implementation of the FMP, to account 
for red crab removed from the resource during the hiatus period, the 
Regional Administrator would calculate the amount of red crab landed 
during the hiatus period between the expiration of the red crab 
emergency regulations on May 15, 2002, and implementation of the FMP. 
This landings total would be deducted from the target TAC (5.928 
million lb)(2,689 mt) and the remainder would represent the amount of 
target TAC available for the initial fishing year under the DAS 
program. The percentage of the target TAC remaining would be calculated 
and vessels participating in the DAS program would be allocated the 
calculated percentage of the initial baseline of DAS (for example, if 
landings during the hiatus period equal 20 percent of the target TAC, 
the allocation of 130 DAS would also be reduced by 20 percent, with the 
result rounded down to the nearest whole number).

Trip Limits During a Red Crab DAS

    All vessels issued a limited access red crab permit would be 
subject to a baseline trip limit of at least 75,000 lb (34,019 kg) of 
whole red crab or its equivalent. If a vessel could show documented 
proof of one trip with higher landings during the limited access 
qualification period, then that vessel would qualify for a trip limit 
equal to the larger trip, rounded to the nearest 5,000 lb (2,268 kg). A 
vessel that partially processes or butchers its harvested red crabs 
would apply the more appropriate of two recovery rate formulas in 
accordance with Sec. 648.263(a)(2) to determine its largest trip limit 
during the qualification period. Such proof would have to be received 
by NMFS within 30 days after receipt of a vessel owner's application 
for an initial limited access red crab vessel permit. A vessel owner 
would have to fish consistent with the 75,000-lb (34,019-kg) trip limit 
until authorized for a trip higher than 75,000 lb (34,019 kg) by NMFS 
through issuance of an updated vessel permit.

Incidental Catch Limit

    An incidental catch limit of 500 lb (226.8 kg) per trip, in whole 
weight equivalent, would be implemented for all vessels issued a red 
crab incidental catch permit. This incidental catch limit would also 
apply to vessels issued a limited access red crab permit when they are 
not fishing under a red crab DAS.

Female Red Crab Possession Restrictions

    The retention and landing of female red crabs in the limited access 
red crab fishery would be prohibited, except for an incidental catch 
allowance equal to the amount that would fill one standard U.S. fish 
tote per vessel per trip (approximately 100 lb (45.4 kg)). This measure 
would not apply to vessels fishing under the provisions of the red crab 
incidental catch permit, because the Council did not want to provide 
any incentive to seek any more than the first 500 lb (227 kg) of red 
crab harvested.

Processing At Sea Restrictions

    This proposed rule would prohibit the full processing of red crabs 
at sea, but would allow partial processing and butchering. ``Full 
processing'' is defined as any activity that removes meat from any part 
of a red crab.
    Crabs must be landed whole or split in half along the length of the 
carapace, with legs and claws still attached to the carapace parts. To 
determine the equivalent whole crab weight for crabs landed in half 
sections, this proposed rule provides two different calculations, 
depending on whether the gills and other detritus are removed. For crab 
halves where gills and other detritus have not been removed (typically 
referred to as ``butchering''), the equivalent whole weight is equal to 
the weight of the halves multiplied by 1.56 (a 64-percent recovery 
rate). For crab halves where all of the gills and other detritus have 
been removed (typically referred to as ``partial processing''), the 
equivalent whole weight is equal to the weight of the halves multiplied 
by 1.72 (a 58-percent recovery rate).
    This requirement is intended to remove the incentive and prevent 
the harvesting of red crabs for their claws and/or legs alone. This 
measure would also facilitate the administration and enforcement of the 
male-only restriction in the directed fishery, because the sex could be 
discerned either by the shape of the tail flap on whole crabs, or by 
the outline of the tail flap on partially processed or butchered crabs.
    Vessels issued a limited access red crab permit and fishing under a 
red crab DAS would be allowed to possess red crab claws and legs 
separate from crab bodies equal to the amount that would fill one 
standard U.S. fish tote per vessel per trip (approximately 100 lb (45.4 
kg)). This mutilation allowance is intended to account for incidental 
and unintended loss of claws and/or legs during normal fishing 
operations. Vessels fishing under the provisions of the red crab 
incidental catch permit could possess no more than two claws and eight 
legs per crab on board the vessel.

Gear Requirements and Restrictions

    Vessels issued a limited access red crab permit and fishing under a 
red crab DAS would be subject to a maximum limit of 600 red crab traps/
pots. If the total number of traps/pots declared by the owner of a 
vessel on the annual vessel permit application were less than 600, the 
vessel would be subject to that declared limit on traps/pots.
    Vessels issued a limited access red crab permit and fishing under a 
red crab DAS would be prohibited from hauling any fishing gear other 
than red crab gear. Red crab gear would be identifiable through 
required markings on the buoys used at the end of each set of traps/
pots.
    The maximum allowable size of all traps/pots used in the limited 
access red crab fishery when under a red crab DAS would be 18 ft\3\ 
(0.51 m\3\) in volume. In conjunction with the trap/pot limit described 
above, this would prevent a potential increase in the per-day 
efficiency of fishing vessels fishing under a red crab DAS.
    The use of parlor traps/pots or non-trap/pot gear by a vessel 
fishing in the limited access red crab fishery when under a red crab 
DAS would be prohibited. Because red crab traps/pots, unlike parlor 
traps/pots, do not prevent the escape of crabs from the trap, many of 
the crabs that might enter the traps during the period between trips 
would be gone before the vessel returned to haul the traps on a 
subsequent trip. Also, lost red crab traps do not present a ghost 
fishing problem, because the crabs can escape from the traps. Vessels 
fishing under the red crab incidental catch provisions, including 
vessels in the red crab fishery when not fishing under a red crab DAS, 
would not be prohibited from using parlor traps/pots or non-trap/pot 
gear.

Annual Monitoring and Framework Adjustment Measures

    The Council would prepare a biennial Stock Assessment and Fishery

[[Page 41940]]

Evaluation (SAFE) Report for the red crab fishery and its resource. The 
Red Crab PDT would meet at least annually to review the status of the 
stock and the fishery. The PDT would report any necessary adjustments 
to the measures and recommendations for the specifications and TACs to 
the Council's Red Crab Committee, which in turn would recommend 
appropriate changes to the Council. Specifications would be recommended 
to NMFS, and changes to management measures would be adopted through a 
framework adjustment or FMP amendment.
    The framework adjustment process, on an annual basis or at any 
other time during the fishing year, would be similar to that used in 
other Northeast Region fisheries. This process would permit changes to 
be made to the regulations in a timely manner without going through the 
FMP amendment process.
    During the framework adjustment process, the Council would meet to 
develop new management measures to the FMP. Either during, or at the 
conclusion of the framework process, the public would be provided an 
opportunity to offer comments on the Council's framework adjustment 
process and the newly-developed management measures.
    In the instant case, the Council provided the public with an 
opportunity to comment on the framework adjustment measures. The 
management measures and/or changes to them could be implemented and 
adjusted through the framework process and specifically include the 
following: (1) OY; (2) management unit; (3) technical parameters for 
MSY; (4) description and identification of EFH; (5) description and 
identification of HAPCs; (6) incidental catch limits; (7) minimum size 
of landed crabs; (8) restricting directed fishing to male crabs only; 
(9) butchering/processing restrictions; (10) trap/pot limits; (11) gear 
requirements/restrictions; (12) TAC; (13) trip limits; (14) controlled 
access; (15) DAS; and (16) any other measure currently included in the 
FMP.
    Pursuant to section 304(b) of the Magnuson-Stevens Act, the 
Secretary has made minor modifications to the framework process 
outlined in the regulations. These modifications help to clarify the 
Secretary's authority and discretion to publish framework measures as a 
final rule without prior notice and comment. Although the Council, 
after consideration of numerous criteria, may recommend that a rule be 
published directly as a final rule, this recommendation does not affect 
the Secretary's authority or discretion in deciding whether it is 
appropriate to publish the rule without prior notice and comment. 
However, in order to publish a final rule without prior notice and 
comment, the Secretary must make a finding under the Administrative 
Procedure Act that good cause exists to waive prior notice and comment.

Essential Fish Habitat (EFH)

    The Council proposes to use depth zone affinities for EFH. EFH for 
red crab includes those areas of the offshore waters (out to the 
offshore U.S. boundary of the EEZ), in depths between 200--1,800 m, as 
identified and described in section 3.7.4 of the FMP.
    This proposed rule would also revise the definitions of 
``Council'', ``Day(s)-at-Sea'', ``Fishing year'', ``Processor'', 
``Processing, or to process, in the Atlantic herring fishery'', and 
``Sorting machine'', to clarify the meaning of each and to provide 
consistency with text used in like definitions from other species 
regulations.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    The Council prepared an FEIS for the FMP; a notice of availability 
for the DEIS was published on November 30, 2001 (66 FR 59787). The 
Council has selected a preferred alternative management strategy 
intended to mitigate, to the extent possible, all possible social and 
economic adverse effects while minimizing risks to the resource and its 
environment. Overall, the proposed action is expected to have 
significant positive effects on the red crab resource relative to the 
no action alternative.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) that describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained in the preamble and in the SUMMARY.
    The following sections provide a summary of the analyses of the 
potential impacts of the management alternatives considered in the FMP. 
The full descriptions of the management alternatives, and the specific 
measures associated with each alternative, are provided in detail in 
sections 4.2 and 4.3 of the FMP. Also, the full analyses of the 
potential impacts of the specific measures associated with each 
alternative are provided in detail in section 5.3 of the FMP. A full 
analysis of the differences among the management alternatives is 
provided in section 5.4 of the FMP.
    Quantitative information is limited for this fishery. When 
possible, the quantitative impacts of the alternatives were considered, 
but in many instances it was only possible to qualitatively describe 
impacts.
    The proposed measures could affect any vessel that has participated 
in the red crab fishery, all of which readily fall within the Small 
Business Administration's (SBA) definition of small business and the 
RFA's definition of ``small entity.'' Therefore, all alternatives and 
analyses associated with the FMP and proposed rule necessarily are 
alternatives and analyses applicable to impacts on small entities. The 
Council IRFA identified 86 individual vessels that reported some 
landings of red crab during 1991-2001. The IRFA considered the level of 
participation in the fishery by examining cumulative landings made by 
the vessels over the 11-year period. Forty-seven vessels made 
cumulative landings of less than 1,000 lb (453.6 kg). Twenty-two 
vessels had cumulative landings between 1,000 lb (453.6 kg) and 10,000 
lb (4,535.9 kg). Only two of these vessels landed 5,000 lb (2,268 kg) 
or more in any one year.
    Four vessels reported between 10,000 lb (4,535.9 kg) and 100,000 lb 
(45,359.2 kg) of cumulative landings during the period, though none of 
these vessels made landings in more than 2 of the 11 years. Another six 
vessels reported between 100,000 lb (45,359.2 kg) and 1,000,000 lb 
(453,592.4 kg) of cumulative landings in the period. None of these 
vessels reported any landings prior to 1995, and two vessels reported 
landings only in 2001.
    Seven vessels reported cumulative landings greater than 1 million 
lb (453,592.4 kg). Of the seven, two vessels have not reported any 
landings since 1993. The remaining five vessels are currently reporting 
landings.
    The Council examined more recent data in the IRFA, but noted that 
the available landings and revenue data are incomplete because red crab 
vessels and dealers have not been required to participate in the 
existing NMFS mandatory reporting program for vessels and dealers. If 
vessels or dealers are involved in one of the other fisheries that 
requires Federal permits and mandatory reporting, their red crab 
activity has been included in those reports. This circumstance means 
that the stated number of entities subject to the regulation is a 
lower-bound estimate, since the number of non-

[[Page 41941]]

federally permitted entities cannot be estimated.
    The Council's IRFA also utilized information obtained through a 
voluntary survey of participants in the red crab fishery. Most of the 
vessel owners who responded to the survey reported that they are 
dependent upon red crab landings for 100 percent of their annual 
income. The processors who responded to the survey reported that they 
all process many species besides red crab, and that red crab accounts 
for an average of 11.5 percent of their fish processing operations.
    The IRFA notes that 17 vessels requested the Letter of 
Authorization (LOA) required under the emergency regulations to harvest 
more than 100 lb (45.4 kg) of red crab per trip during the period May 
18 - November 14, 2001. Of those vessels, seven actually reported red 
crab landings during the period. Only six vessels made multiple trips 
during the emergency period and consistently landed at or near the trip 
limit of 65,000 lb (29.5 mt).
    In addition to the proposed management program, the Council 
considered eight management program alternatives and a ``no action'' 
alternative. Each management program is composed of a suite of 
management measures, though some measures are common to most or all of 
the alternatives. Most of the alternatives included limited access 
programs, and all of the alternatives included some level of incidental 
catch limits for vessels targeting species other than red crab. In 
addition, all of the management alternatives include requirements for 
fishing gear to be marked, restrictions on the use of non-trap gear in 
the directed fishery, and permit and reporting requirements. While 
there are economic impacts on small entities associated with these 
measures, the impacts are the same for all of the alternatives. The 
impacts of these measures will be described separately from the 
discussion of the alternatives.

Limited Access Program

    The limited access eligibility criteria included in the proposed 
action requires a vessel to have landed more than 250,000 lb (113.40 
mt) of red crab during the 3 years prior to the control date (March 1, 
1997 - February 29, 2000). The Council expected a minimum of five 
vessels to meet these eligibility criteria. The Council considered 
establishing less restrictive eligibility criteria, and expected a 
minimum of eight vessels to meet the least restrictive criteria 
considered, which would have required a vessel to have landed 40,000 lb 
(18,143.7 kg) or more during the eligibility period of March 1, 1997--
February 29, 2000. This implies that three entities may be negatively 
impacted because the proposed limited access program will exclude them 
from the directed fishery. These three vessels landed at least 10,000 
lb (4,535.9 kg) of red crab for 3 years prior to the control date, for 
an average of 3,333 lb (1,511.8 kg) per year. The IRFA estimated the 
maximum revenue loss to be $2,833 per year for each of these vessels.
    The IRFA also evaluated the impact of the proposed program by 
comparing the qualifying vessels with the vessels that fished multiple 
times under LOAs issued under the emergency regulations. This 
comparison indicates that one entity may be excluded from the directed 
fishery by the proposed criteria because the vessel entered the fishery 
after the control date of March 1, 2000. This vessel does not currently 
participate in the fishery and has left the New England area. The 
impacts on this vessel will be severe, but cannot be detailed in the 
IRFA because of data confidentiality restrictions.
    The revenue effects on these impacted entities would be moderated 
if they can adapt their fishing activities and redirect their fishing 
activity onto other species. It appears that most will have this 
option. Of the 17 vessels noted above that were issued LOAs under the 
emergency action, 14 had the vessel permits necessary to fish in other 
fisheries, including other limited access fisheries such as American 
lobster, summer flounder, scup and black sea bass.

Incidental Catch Allowance

    The proposed action would implement an incidental catch limit of 
500 lb (226.8 kg) per trip. The Council believed that this would ensure 
that the offshore lobster fishery, as well as other fisheries, would be 
able to continue to land relatively small amounts of red crab as 
incidental catch. Alternative levels for incidental catch that were 
considered were 50-lb (22.7-kg), 100-lb (45.4-kg), and 1,000-lb (453.6-
kg) limits. The Council's IRFA examined red crab landings data for the 
period 1998-2000 and identified trips that landed red crab as 
incidental catch. Approximately 27 percent of trips landed 50 lb (22.7 
kg) or less; nearly 40 percent landed up to 100 lb (45.4 kg); nearly 75 
percent landed up to 500 lb (226.8 kg); and 89 percent landed up to 
1,000 lb (453.6 kg).

Gear Restrictions

    All of the alternatives would require red crab gear to be marked in 
a manner consistent with current industry practices, so the impacts of 
the gear-marking requirements are minor. In addition, all alternatives 
would prohibit vessels targeting red crab from using any gear other 
than pot/trap gear. The directed fishery currently uses only pot/trap 
gear, so there are no impacts associated with this restriction.

Permits and Reporting Requirements

    Vessels landing red crab would be required to have permits, as 
would dealers purchasing red crab from permitted vessels. Operators of 
vessels with red crab permits would be required to obtain operator 
permits. Vessels landing red crab would need to submit logbook reports, 
and dealers purchasing this species would need to submit dealer 
reports. Some vessels and dealers are currently issued the required 
permits as a result of their participation in other managed fisheries. 
For those entities, the red crab fishery would be added to an existing 
permit and there would be no new impacts.
    Some vessel owners and dealers may have to obtain Federal permits 
for the first time. In these instances, the costs associated with 
completing the necessary applications would be: Vessel permit, $7.50/
applicant; dealer permit, $7.50/applicant; and operator permit, $15.00. 
Annual costs associated with completing vessel trip reports are 
estimated at $20.00. Annual costs associated with dealer reporting are 
estimated at $30.00.

Impacts of Alternatives on Vessels

    The economic impacts of the other measures included in the 
alternatives considered by the Council are summarized below. The 
proposed action is referred to in the IRFA as Alternative 5 (Preferred 
Alternative).

Proposed Action: Target TAC, DAS and Trip Limits

    The proposed action would establish a target TAC at a level that 
would prevent overfishing. In order to constrain landings to the level 
of the target TAC, DAS would be allocated to each vessel that qualified 
for the limited access permit. These DAS would be calculated based on 
the average landings in the fishery, but each vessel would be allowed 
to land red crab under a trip limit restriction of at least 75,000 lb/
trip (34,019.4 kg/trip). A vessel that demonstrated higher landings in 
the past would be assigned a trip limit equal to the highest landings 
on a historical trip. In addition to the trip limit restriction, the 
limited access vessels would be limited to using 600 pots/traps. The 
landings of female crabs

[[Page 41942]]

(other than a small allowance for accidental retention) would be 
prohibited. This would limit the extent to which red crabs could be 
butchered or processed prior to landing.
    The impact of the DAS under the proposed action presumed a 
potential DAS allocation of up to 183 DAS each. This represents a 
reduction from the number of days that red crab vessel owners reported 
being at sea (200-300 days). The IRFA notes that the owners of five 
vessels active in the fishery commented that they could operate 
profitably on an allocation of 183 days. Because vessels can expend 
their DAS when they choose, DAS are expected to allow flexibility in 
fishing activity and more consistent supply to the red crab market.
    The proposed trip limit would allow vessels to operate at their 
best historical level, so impacts are expected to be slight. The use of 
historical levels would maintain each vessel's individual competitive 
position within the fishery. The IRFA noted that it would not always be 
possible for a vessel to duplicate its highest level of landings, so 
that, on average, vessel trips would likely land less than the vessel 
trip limit.
    Several of the measures in this alternative are consistent with the 
way the fishery currently operates and so would have no impact. In 
response to market demand, red crab landings have been composed almost 
exclusively of male crabs. The average number of traps used in the 
fishery is estimated at 560, so the 600-trap limit would have no 
impacts, except to prevent an expansion of effort. The restrictions on 
red crab processing at sea are intended to improve the ability to 
enforce the trip limits and restrictions on landing females. The 
butchering/processing restriction is consistent with the practice of 
most of the vessels known to participate in the fishery, although it 
appears at least one vessel would have to modify its operations.

Alternative 1: Emergency Rule

    The incidental catch allowance, gear restrictions, permits and 
reporting requirements are included in this alternative. This 
alternative does not include a limited access program. The principal 
management measure in this alternative is a hard TAC, with closure of 
the directed fishery required when the TAC is attained. This 
alternative would also establish trip limits and trap limits. When 
quotas are relatively low, the fishing industry generally attempts to 
land as much as possible before the TAC is attained and the fishery is 
closed. This results in a glut of products that may exceed market 
demand, resulting in lower revenues to fishermen and economic waste. It 
also interrupts supply to markets due to the closed fishery. Each 
regulated entity would, therefore, experience unstable revenue and have 
to deal with market supply problems. The fishery under the emergency 
regulations demonstrated this effect.

Alternative 2: Hard TAC with Trap/Pot Limits

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. This alternative would establish a trap limit for all 
limited access vessels, intended to make fishing effort equivalent. 
This alternative would also prohibit most landings of female red crab 
and would restrict butchering/processing at sea. The major impacts 
associated with this alternative would be related to the fishery 
closures when the TAC was attained, and to the trap limit. The impacts 
of the hard TAC would be the same as in Alternative 1. The impacts of 
the trap limit would be to force vessels to operate at less than their 
full capacity, reducing their efficiency. Reducing the number of traps/
pots from current levels would reduce the catch without any associated 
reduction of costs, resulting in reduced profitability and higher costs 
per crab harvested.

Alternative 3: Hard TAC, Trap/Pot Limits, and Trip Limits

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. The measures in Alternative 2 are also included, and a 
trip limit measure is added. All limited access vessels would be 
restricted to the same trip limit, whether or not the vessels had the 
ability to make landings higher than the trip limit. Such vessels would 
be forced to operate in an inefficient manner, and in some cases might 
not generate enough revenue to cover their variable costs. Some of 
these vessels could decide not to participate in the fishery. The 
impact of such decisions could be offset by fishing for other species, 
but it is impossible to estimate how much additional revenue this would 
generate.

Alternative 4: Target TAC with DAS

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. This alternative would establish a trap limit for all 
limited access vessels, prohibit most landings of female red crab, and 
restrict butchering/processing at sea. This alternative would set a 
target TAC, and allocate DAS to limited access vessel intended to 
maintain landings consistent with the target TAC. The only difference 
between this alternative and the measures in the proposed action is 
that this alternative would not establish trip limits. The lack of a 
trip limit would reduce the impact on the limited access vessels by 
allowing them to make each trip as profitable as possible. However, the 
Council selected the proposed action because the addition of trip 
limits would constrain vessels to operate at historical levels only, 
ntaining each vessel's relative individual competitive position within 
the fishery, as of the control date. It would also constrain the total 
fleet to meet the conservation objectives of the FMP.

Alternative 5: Trip Limits and Set Number of Trips

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. This alternative would establish a trap limit for all 
limited access vessels, prohibit most landings of female red crab, and 
restrict butchering/processing at sea. This alternative would allocate 
a specified number of trips to limited access vessels, and set a trip 
limit for such vessels. The only difference between this alternative 
and that contained in the proposed measures is that vessel activity 
would be controlled on a trip level, rather than a DAS level, and there 
would be no formalized calculation of a target TAC. Even though a TAC 
would not be specified, the allocation of trips and establishment of 
trip limits would have to take the total catch into account. Depending 
on the level of the trip limit, it could require vessels to operate in 
an inefficient manner. Consideration was given in this alternative to 
establishing trip limits specific to each vessel, which could have 
improved the efficiency of operations and reduced the impacts.

Alternative 6: All Possible Measures

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. This alternative included all of the measures in the 
proposed action, but added a minimum size requirement. The minimum size 
restriction is projected to have little impact because there is no 
market for small red crabs, so this alternative has economic impacts

[[Page 41943]]

similar to those of the preferred alternative.

Alternative 7: IVQ with Controlled Access

    The limited access program, incidental catch allowance, gear 
restrictions, permits and reporting requirements are included in this 
alternative. In addition, this alternative would establish a TAC, and 
establish Individual Vessel Quotas (IVQs) that would allocate to each 
vessel an individual percentage share of the TAC. Vessels would be able 
to operate at their peak efficiency, maximizing their revenue, and thus 
their profit. The creation of use rights means that some vessel owners 
would gain economically and some would lose; this creates a 
redistribution of wealth and has equity implications. New quota-based 
programs including IVQs are currently not allowed under the Magnuson-
Stevens Act.

Alternative 8: IVQ Only

    The incidental catch allowance, gear restrictions, permits and 
reporting requirements are included in this alternative. This 
alternative would not establish a limited access program, but would 
establish an IVQ. In the absence of a limited access program, more 
vessels would participate in the fishery. Because of this, each IVQ 
vessel would have a smaller share of the TAC than in the previous 
alternative. The economic benefits of IVQ would still be realized, but 
would be shared among a larger group of vessels thus diminishing per-
vessel share. New quota-based programs including IVQs are currently not 
allowed under the Magnuson-Stevens Act.

Alternative 9: No Action

    Without regulatory action, additional vessels would enter the 
fishery and current participants could increase harvest levels without 
restriction. In the short term, landings and revenue could increase for 
many vessels, but because uncontrolled landings could not be sustained, 
eventually the profitability of all vessels would decrease. With the 
entry of additional vessels, the catch per vessel would decrease. There 
would initially be an increased supply of red crabs to consumers 
because landings would not be restricted, but the long-term effect 
would be decreased supply and, presumably, higher prices. Uncontrolled 
and potentially escalating fishing effort could have negative economic 
impacts on those businesses that depend on the red crab fishery.

Economic Impacts on Dealers

    In 2001, the NMFS dealer reports indicated that seven dealers 
purchased red crab; of these, only one purchased more than 1,500 lb 
(680.4 kg). For the other six, red crab appears to have represented a 
minor part of their business. Consideration of impacts on dealers is 
hampered by the limited data available. The dealer(s) who purchased 96 
percent of the red crab landed cannot be identified in the existing 
data.
    Another way to look at dealer dependence on red crab is to consider 
the dollar value of red crab. By this measure, only one dealer depended 
on red crab for more than $200,000 in revenue. In 2000, there were 
three dealers listed in the dealer database that purchased 12 percent 
of the red crab landings. The dealer(s) who purchased 88 percent of the 
red crab landings could not be identified in the existing data.
    The proposed action has only limited impact on dealers because the 
red crab fishery is expected to operate at levels similar to those in 
recent years.

Competitive Effects Analysis

    Most, if not all, of the vessels, dealers, and processors fall 
within the definition of small entities and, thus, any alternatives to 
reduce impacts are necessarily alternatives affecting impacts on small 
entities. The voluntary survey indicated that one processor employs 
1,000 people, which is a number greater than that specified in the 
definition of a small entity. However, the maximum number of year-round 
employees, as opposed to seasonal, for any processor, was listed as 400 
so it is possible that all dealers would be appropriately categorized 
as small entities. There is also an indication that a fish and seafood 
wholesaler that employs 150 people may not be a small entity. However, 
the percentage of this wholesaler's business revenue that comes from 
the sale of red crab products ranges from less than 1 percent to 33 
percent and averages only slightly more than 25 percent. Because of the 
small nature of the fishery and the issue of confidentiality, it is not 
possible to disclose if there are disproportionate size effects. There 
are no disproportionate costs of compliance among the affected small 
entities. The proposed action does not create regulations that 
duplicate, overlap, or conflict with any state regulation or other 
Federal law.
    A copy of this analysis is available from the Council (see 
ADDRESSES).
    This rule contains eight collection-of-information requirements, 
which have been submitted to OMB for approval. The public's reporting 
burden for the collection-of-information requirements includes the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection-of-information requirements.
    The new reporting requirements and the estimated time for a 
response are as follows:
    Vessel trip reports, OMB control number 0648-0212
    (5 minutes/response).
    Dealer purchase reports, OMB control number 0648-0229
    (10 minutes/response).
    Limited access vessel permits, OMB control number 0648-0202 (5 
minutes/response).
    Incidental catch vessel permits, OMB control number 0648-0202 (5 
minutes/response).
    Dealer permits, OMB control number 0648-0202
    (5 minutes/response).
    Operator permits, OMB control number 0648-0202
    (60 minutes/response).
    Observer deployments, OMB control number 0648-0202
    (2 minutes/response).
    Gear marking requirements, OMB control number 0648-0351
    (36 minute/response).
    Public comment is sought regarding: Whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS (see ADDRESSES) and to OMB at the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington DC 20503 (Attn: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act, unless that collection-of-
information displays a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.


[[Page 41944]]


    Dated: June 14, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec. 648.1, the first sentence of paragraph (a) is revised to 
read as follows:


Sec. 648.1  Purpose and scope.

    (a) This part implements the fishery management plans (FMPs) for 
the Atlantic mackerel, squid, and butterfish fisheries (Atlantic 
Mackerel, Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon 
FMP); the Atlantic sea scallop fishery (Scallop FMP); the Atlantic surf 
clam and ocean quahog fisheries (Atlantic Surf Clam and Ocean Quahog 
FMP); the NE multispecies and monkfish fisheries ((NE Multispecies FMP) 
and (Monkfish FMP)); the summer flounder, scup, and black sea bass 
fisheries (Summer Flounder, Scup, and Black Sea Bass FMP); the Atlantic 
bluefish fishery (Atlantic Bluefish FMP); the Atlantic herring fishery 
(Atlantic Herring FMP); the spiny dogfish fishery (Spiny Dogfish FMP); 
the Atlantic deep-sea red crab fishery (Deep-Sea Red Crab FMP); and the 
tilefish fishery (Tilefish FMP). * * *
* * * * *

    3. In Sec. 648.2, the definitions of ``Council'', ``Day(s)-at-
Sea'', ``Fishing year'', ``Processor'', ``Processing, or to process, in 
the Atlantic herring fishery'', and ``Sorting machine'' are revised and 
new definitions for ``Atlantic deep-sea red crab (red crab)'', ``Full-
processing (fully process), with respect to the Atlantic deep-sea red 
crab fishery'', ``Parlor trap/pot'', ``Red Crab Management Unit'', and 
``Red crab trap/pot'' are added in alphabetical order to read as 
follows:


Sec. 648.2  Definitions.

* * * * *
    Atlantic deep-sea red crab (red crab) means Chaceon quinquedens.
* * * * *
    Council means the New England Fishery Management Council (NEFMC) 
for the Atlantic herring, Atlantic sea scallop, Atlantic deep-sea red 
crab, and NE multispecies and monkfish fisheries; or the Mid-Atlantic 
Fishery Management Council (MAFMC) for the Atlantic mackerel, squid, 
and butterfish; Atlantic surf clam and ocean quahog; summer flounder, 
scup, and black sea bass; spiny dogfish; Atlantic bluefish; and 
tilefish fisheries.
* * * * *
    Day(s)-at-Sea (DAS), with respect to the NE multispecies and 
monkfish fisheries (except as described in Sec. 648.82(k)(1)(iv)), 
Atlantic sea scallop fishery, and Atlantic deep-sea red crab fishery, 
means the 24-hour periods of time or any part thereof during which a 
fishing vessel is absent from port to fish for, possess or land, or 
fishes for, possesses or lands, regulated species, monkfish, scallops, 
or red crabs. With respect to the red crab fishery, any portion of a 
calendar day in which a vessel is out of port, after having declared 
into the red crab DAS fishery, shall count as a full DAS.
* * * * *
    Fishing year means: (1) For the Atlantic sea scallop and Atlantic 
deep-sea red crab fisheries, from March 1 through the last day of 
February of the following year. (2) For the NE multispecies and 
monkfish fisheries, from May 1 through April 30 of the following year. 
(3) For all other fisheries in this part, from January 1 through 
December 31.
* * * * *
    Full-processing (fully process), with respect to the Atlantic deep-
sea red crab fishery, means any activity that removes meat from any 
part of a red crab.
    Parlor trap/pot means any structure or other device, other than a 
net, with two or more compartments within designed to impede escape, 
that is placed, or designed to be placed, on the ocean bottom and is 
designed for, or is capable of, catching lobsters and/or red crabs.
    Processor, with respect to the Atlantic surf clam and ocean quahog 
fisheries, means a person who receives surf clams or ocean quahogs for 
a commercial purpose and removes them from a cage.
    Processing, or to process, with respect to the Atlantic herring 
fishery, means the preparation of Atlantic herring to render it 
suitable for human consumption, bait, commercial uses, industrial uses, 
or long-term storage, including but not limited to cooking, canning, 
roe extraction, smoking, salting, drying, freezing, or rendering into 
meat or oil.
* * * * *
    Red Crab Management Unit means an area of the Atlantic Ocean from 
35 15.3 deg. N. Lat., the approximate latitude of Cape Hatteras Light, 
NC, northward to the U.S.-Canada border, extending eastward from the 
shore to the outer boundary of the exclusive economic zone and 
northward to the U.S.-Canada border in which the United States 
exercises exclusive jurisdiction over all Atlantic deep-sea red crab 
fished for, possessed, caught or retained in or from such area.
    Red crab trap/pot means any structure or other device, other than a 
net, that is placed, or designed to be placed, on the ocean bottom and 
is designed for, or is capable of, catching red crabs.
* * * * *
    Sorting machine, with respect to the Atlantic sea scallop fishery, 
means any mechanical device that automatically sorts whole scallops by 
shell height, size, or other physical characteristics.
* * * * *

    4. In Sec. 648.4, paragraph (a) (13) is added to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (13) Red Crab vessels. Any vessel of the United States must have 
been issued and have on board a valid red crab vessel permit to fish 
for, catch, possess, transport, land, sell, trade, barter, butcher or 
partially process at sea any red crab in or from the EEZ portion of the 
Red Crab Management Unit.
    (i) Limited access red crab permit--(A) Eligibility. A vessel, or 
its replacement, may be issued a limited access red crab permit if the 
vessel's total landings averaged greater than 250,000 lb (113,400 kg) 
of red crab per year for the 3 years beginning March 1, 1997, through 
February 29, 2000. To calculate the average value per year, the total 
landings of whole red crab, or its equivalent by weight, between March 
1, 1997, and February 29, 2000, inclusive, shall be divided by 3. If 
the quotient is greater than 250,000 lb (113,400 kg), the vessel meets 
the landings criteria. For example, if a vessel caught greater than 
750,000 lb (340,200 kg) in the 3-year qualifying time span--even if it 
fished just 2 of those 3 years--the average per year would be greater 
than 250,000 lb (113,400 kg).
    (B) Application/renewal restriction--(1) Initial application. A 
vessel owner must apply for an initial limited access red crab permit 
before [insert date 180 days from the effective date of the final 
rule]. No vessel owner may apply for an initial limited access red crab 
permit after this date.
    (2) Fishing years beyond the initial year. (i) For fishing years 
beyond the initial year, the provisions of paragraph (a)(1)(i)(B) of 
this section apply.
    (ii) A vessel owner may choose to declare out of the red crab 
fishery for the next fishing year by submitting a binding declaration 
on a form supplied by the Regional Administrator, which

[[Page 41945]]

must be received by NMFS at least 180 days before the last day of the 
current fishing year. NMFS will presume that a vessel intends to fish 
during the next fishing year unless such binding declaration is 
received at least 180 days before the last day of the current fishing 
year.
    (C) Qualification restrictions. The provisions of paragraph 
(a)(1)(i)(C) of this section apply.
    (D) Change in ownership. The provisions of paragraph (a)(1)(i)(D) 
of this section apply.
    (E) Replacement vessels. (1) To be eligible for a limited access 
permit under this section, the replacement vessel's length, GRT, and NT 
may not exceed by greater than 10 percent the length, GRT, and NT of 
the vessel's baseline specifications, if applicable. The replacement 
vessel must also meet any other applicable criteria under paragraph 
(a)(13)(i)(F) of this section.
    (2) A vessel that lawfully replaced a vessel that meets the 
qualification criteria set forth in paragraph (a)(13)(i)(A) of this 
section may qualify for and fish under the permit category for which 
the replaced vessel qualified.
    (3) A vessel that replaced a vessel that fished for and landed red 
crab between March 1, 1997, and February 29, 2000, may use the replaced 
vessel's history in lieu of or in addition to such vessel's fishing 
history to meet the qualification criteria set forth in paragraph 
(a)(13)(i)(A) of this section, unless the owner of the replaced vessel 
retained the vessel's permit or fishing history, or such vessel no 
longer exists and was replaced by another vessel according to the 
provisions in paragraph (a)(1)(i)(D) of this section.
    (F) Upgraded vessel. A vessel may be upgraded, whether through 
refitting or replacement, and be eligible to retain or renew a limited 
access permit, providing that the vessel's length, GRT, and NT is 
increased no more than once. Any increase in any of the aforementioned 
specifications of vessel size may not exceed 10 percent of the vessel's 
baseline specifications, as applicable. If any increase in any of the 
aforementioned specifications of vessel size occurs, any increase in 
the other specifications must be performed at the same time.
    (G) Consolidation restriction. The provisions of paragraph 
(a)(1)(i)(G) of this section apply.
    (H) Vessel baseline specifications. The vessel baseline 
specifications in this section are the respective specifications 
(length, GRT, and NT) of the vessel that was initially issued a limited 
access permit as of the date the initial vessel applied for such 
permit.
    (I) Limited access permit restrictions. A vessel issued a limited 
access red crab permit may not be issued a red crab incidental catch 
permit during the same fishing year.
    (J) Confirmation of permit history (CPH). Notwithstanding any other 
provisions of this part, a person who does not currently own a fishing 
vessel, but who has owned a qualifying vessel that has sunk, been 
destroyed, or transferred to another person, must apply for and receive 
a CPH if the fishing and permit history of such vessel has been 
retained lawfully by the applicant. To be eligible to obtain a CPH, the 
applicant must show that the qualifying vessel meets the eligibility 
requirements, as applicable, in this part. Issuance of a valid CPH 
preserves the eligibility of the applicant to apply for a limited 
access permit for a replacement vessel based on the qualifying vessel's 
fishing and permit history at a subsequent time, subject to the 
replacement provisions specified in this section. If fishing privileges 
have been assigned or allocated previously under this part, based on 
the qualifying vessel's fishing and permit history, the CPH also 
preserves such fishing privileges. A CPH must be applied for in order 
for the applicant to preserve the fishing rights and limited access 
eligibility of the qualifying vessel. An application for a CPH must be 
received by the Regional Administrator no later than 30 days prior to 
the end of the first full fishing year in which a vessel permit cannot 
be issued. Failure to do so is considered abandonment of the permit as 
described in paragraph (a)(1)(i)(K) of this section. A CPH issued under 
this part will remain valid until the fishing and permit history 
preserved by the CPH is used to qualify a replacement vessel for a 
limited access permit. Any decision regarding the issuance of a CPH for 
a qualifying vessel that has applied for or been issued previously a 
limited access permit is a final agency action subject to judicial 
review under 5 U.S.C. 704. Information requirements for the CPH 
application are the same as those for a limited access permit. Any 
request for information about the vessel on the CPH application form 
refers to the qualifying vessel that has been sunk, destroyed, or 
transferred. Vessel permit applicants who have been issued a CPH and 
who wish to obtain a vessel permit for a replacement vessel based upon 
the previous vessel history may do so pursuant to paragraph 
(a)(13)(i)(E) of this section.
    (K) Abandonment or voluntary relinquishment of permits. The 
provisions of paragraph (a)(1)(i)(K) of this section apply.
    (L) Restriction on permit splitting. The provisions of paragraph 
(a)(1)(i)(L) of this section apply.
    (M) Notification of eligibility for 2002. (1) NMFS will attempt to 
notify all owners of vessels for which NMFS has credible evidence 
available that they meet the qualification criteria described in 
paragraph (a)(13)(i)(A) of this section and that they qualify for a 
limited access red crab permit. Vessel owners must still apply by 
[insert date 180 days from the effective date of the final rule] to 
complete the qualification requirements.
    (2) If the vessel owner has not been notified that the vessel is 
eligible to be issued a limited access red crab permit, and the vessel 
owner believes that there is credible evidence that the vessel does 
qualify under the pertinent criteria, the vessel owner may apply for a 
limited access red crab permit by [insert date 180 days from the 
effective date of the final rule] by submitting evidence that the 
vessel meets the requirements described in paragraph (a)(13)(i)(A) of 
this section.
    (N) Appeal of denial of a permit. (1) Any applicant denied a 
limited access red crab permit may appeal to the Regional Administrator 
within 30 days of the notice of denial. Any such appeal shall be in 
writing. The only ground for appeal is that the Regional Administrator 
erred in concluding that the vessel did not meet the criteria in 
paragraph (a)(13)(i)(A) of this section. The appeal must set forth the 
basis for the applicant's belief that the decision of the Regional 
Administrator was made in error.
    (2) The appeal may be presented, at the option of the applicant, at 
a hearing before an officer appointed by the Regional Administrator. 
The hearing officer shall make a recommendation to the Regional 
Administrator. The decision on the appeal by the Regional Administrator 
is the final decision of the Department of Commerce.
    (3) Status of vessels pending appeal. A vessel denied a limited 
access red crab permit may fish, provided that the denial has been 
appealed, the appeal is pending, the vessel owner has presented prima 
facie evidence that the decision was made in error, and the vessel has 
on board a letter from the Regional Administrator authorizing the 
vessel to fish. The Regional Administrator will issue such a letter for 
the pendency of any appeal. The decision on the appeal is the final 
administrative action of the Department of Commerce. The letter of 
authorization must be carried on board the vessel. If the appeal is 
finally denied, the Regional Administrator

[[Page 41946]]

shall send a notice of final denial to the vessel owner; the 
authorizing letter shall become invalid 5 days after receipt of the 
notice of denial.
    (i) Red crab incidental catch permit. A vessel of the United States 
that is subject to these regulations and that has not been issued a red 
crab limited access permit is eligible for and may be issued a red crab 
incidental catch permit to catch, possess, transport, land, sell, 
trade, barter, butcher or partially process at sea up to 500 lb (226.8 
kg) of red crab, or its equivalent as specified at 
Sec. 648.263(a)(2)(i) and (ii), per fishing trip in or from the Red 
Crab Management Unit. Such vessel is subject to the restrictions in 
Sec. 648.263(b).
    (ii) [Reserved]

    5. In Sec. 648.5, the first sentence in paragraph (a) is revised to 
read as follows:


Sec. 648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing 
Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies, 
spiny dogfish, monkfish, Atlantic herring, Atlantic surf clam, ocean 
quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or 
bluefish, harvested in or from the EEZ, or tilefish harvested in or 
from the EEZ portion of the Tilefish Management Unit, or Atlantic deep-
sea red crab harvested in or from the EEZ portion of the Red Crab 
Management Unit, issued a permit, including carrier and processing 
permits, for these species under this part, must have been issued under 
this section, and carry on board, a valid operator permit. * * *
* * * * *

    6. In Sec. 648.6, paragraph (a)(1) is revised to read as follows:


Sec. 648.6  Dealer/processor permits.

    (a) * * *
    (1) All dealers of NE multispecies, monkfish, Atlantic herring, 
Atlantic sea scallop, Atlantic deep-sea red crab, spiny dogfish, summer 
flounder, Atlantic surf clam, ocean quahog, Atlantic mackerel, squid, 
butterfish, scup, bluefish, tilefish, and black sea bass; Atlantic surf 
clam and ocean quahog processors; and Atlantic herring processors or 
dealers, as described in Sec. 648.2; must have been issued under this 
section, and have in their possession, a valid permit or permits for 
these species. A person who meets the requirements of both the dealer 
and processor definitions of any of the aforementioned species' fishery 
regulations may need to obtain both a dealer and a processor permit, 
consistent with the requirements of that particular species' fishery 
regulations. Persons aboard vessels receiving small-mesh multispecies 
and/or Atlantic herring at sea for their own use exclusively as bait 
are deemed not to be dealers, and are not required to possess a valid 
dealer permit under this section, for purposes of receiving such small-
mesh multispecies and/or Atlantic herring, provided the vessel complies 
with the provisions of Sec. 648.13.
* * * * *

    7. In Sec. 648.7, paragraphs (b)(1)(iii) and (b)(1)(iv) are removed 
and paragraph (b)(2) is added to read as follows:


Sec. 648.7  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (2) IVR system reports--(i) Atlantic herring owners or operators. 
The owner or operator of a vessel described here must report catches 
(retained and discarded) of herring each week to an IVR system. The 
report shall include at least the following information, and any other 
information required by the Regional Administrator: Vessel 
identification, reporting week in which species are caught, pounds 
retained, pounds discarded, management area fished, and pounds of 
herring caught in each management area for the previous week. Weekly 
Atlantic herring catch reports must be submitted via the IVR system by 
midnight, Eastern Time, each Tuesday for the previous week. Reports are 
required even if herring caught during the week has not yet been 
landed. This report does not exempt the owner or operator from other 
applicable reporting requirements of Sec. 648.7.
    (A) The owner or operator of any vessel issued a permit for 
Atlantic herring subject to the requirements specified by 
Sec. 648.4(c)(2)(vi)(C) that is required by Sec. 648.205 to have a VMS 
unit on board must submit an Atlantic herring catch report via the IVR 
system each week (including weeks when no herring is caught), unless 
exempted from this requirement by the Regional Administrator.
    (B) An owner or operator of any vessel issued a permit for Atlantic 
herring that is not required by Sec. 648.205 to have a VMS unit on 
board and that catches 2,000 lb (907.2 kg) of Atlantic 
herring on any trip in a week must submit an Atlantic herring catch 
report via the IVR system for that week as required by the Regional 
Administrator.
    (C) An owner or operator of any vessel that catches 
2,000 lb (907.2 kg) of Atlantic herring, some or all of 
which is caught in or from the EEZ, on any trip in a week, must submit 
an Atlantic herring catch report via the IVR system for that week as 
required by the Regional Administrator.
    (D) Atlantic herring IVR reports are not required from Atlantic 
herring carrier vessels.
    (ii) Tilefish vessel owners or operators. The owner or operator of 
any vessel issued a limited access permit for tilefish must submit a 
tilefish catch report via the IVR system within 24 hours after 
returning to port and offloading as required by the Regional 
Administrator. The report shall include at least the following 
information, and any other information required by the Regional 
Administrator: Vessel identification, trip during which species are 
caught, and pounds landed. IVR reporting does not exempt the owner or 
operator from other applicable reporting requirements of Sec. 648.7.
    (iii) Red crab vessel owners and operators. The owner or operator 
of any vessel issued a limited access permit for red crab must submit a 
red crab catch report via the IVR system within 24 hours after 
returning to port and offloading as required by the Regional 
Administrator. IVR reporting does not exempt the owner or operator from 
other applicable reporting requirements of Sec. 648.7.
* * * * *

    8. In Sec. 648.10, paragraph (c) introductory text, and paragraphs 
(c)(2) and (c)(5) are revised to read as follows:


Sec. 648.10  DAS notification requirements.

* * * * *
    (c) Call-in notification. Owners of vessels issued limited access 
multispecies, monkfish or red crab permits who are participating in a 
DAS program and who are not required to provide notification using a 
VMS, scallop vessels qualifying for a DAS allocation under the 
occasional category and who have not elected to fish under the VMS 
notification requirements of paragraph (b) of this section, and vessels 
fishing pending an appeal as specified in Sec. 648.4(a)(1)(i)(M)(3), 
(a)(9)(i)(N)(3) and (a)(13)(i)(N)(3) are subject to the following 
requirements:
* * * * *
    (2) The vessel's confirmation numbers for the current and 
immediately prior multispecies, monkfish or red crab fishing trip must 
be maintained on board the vessel and provided to an authorized officer 
upon request.
* * * * *
    (5) Any vessel that possesses or lands per trip greater than 400 lb 
(181 kg) of scallops, and any vessel issued a limited access 
multispecies permit subject to the multispecies DAS program and call-

[[Page 41947]]

in requirement that possesses or lands regulated species, except as 
provided in Secs. 648.17 and 648.89, any vessel issued a limited access 
monkfish permit subject to the monkfish DAS program and call-in 
requirement that possesses or lands monkfish above the incidental catch 
trip limits specified in Sec. 648.94(c), and any vessel issued a 
limited access red crab permit subject to the red crab DAS program and 
call-in requirement that possesses or lands red crab above the 
incidental catch trip limits specified in Sec. 648.263(b)(1), shall be 
deemed in its respective DAS program for purposes of counting DAS, 
regardless of whether the vessel's owner or authorized representative 
provided adequate notification as required by paragraph (c) of this 
section.
* * * * *

    9. In Sec. 648.11, the first sentence of paragraph (a) and 
paragraph (e) are revised to read as follows:


Sec. 648.11  At-sea sampler/observer coverage.

    (a) The Regional Administrator may request any vessel holding a 
permit for Atlantic sea scallops, NE multispecies, monkfish, Atlantic 
mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, tilefish, or Atlantic deep-sea red crab; or 
a moratorium permit for summer flounder; to carry a NMFS-approved sea 
sampler/observer. * * *
* * * * *
    (e) The owner or operator of a vessel issued a summer flounder 
moratorium permit, a scup moratorium permit, a black sea bass 
moratorium permit, a bluefish permit, a spiny dogfish permit, an 
Atlantic herring permit, an Atlantic deep-sea red crab permit, or a 
tilefish permit, if requested by the sea sampler/observer, also must:
    (1) Notify the sea sampler/observer of any sea turtles, marine 
mammals, summer flounder, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, Atlantic deep-sea red crab, tilefish, or 
other specimens taken by the vessel.
    (2) Provide the sea sampler/observer with sea turtles, marine 
mammals, summer flounder, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, Atlantic deep-sea red crab, tilefish, or 
other specimens taken by the vessel.
* * * * *

    10. In Sec. 648.12, the introductory text to this section is 
revised to read as follows:


Sec. 648.12  Experimental fishing.

    The Regional Administrator may exempt any person or vessel from the 
requirements of subparts A (General provisions), B (Atlantic mackerel, 
squid, and butterfish), D (Atlantic sea scallop), E (Atlantic surf clam 
and ocean quahog), F (NE multispecies and monkfish), G (summer 
flounder), H (scup), I (black sea bass), J (Atlantic bluefish), K 
(Atlantic herring), L (spiny dogfish), M (Atlantic deep-sea red crab), 
and N (tilefish) of this part for the conduct of experimental fishing 
beneficial to the management of the resources or fishery managed under 
that subpart. The Regional Administrator shall consult with the 
Executive Director of the MAFMC regarding such exemptions for the 
Atlantic mackerel, squid, butterfish, summer flounder, scup, black sea 
bass, spiny dogfish, bluefish, and tilefish fisheries.
* * * * *

    11. In Sec. 648.13, paragraph (g) is added to read as follows:


Sec. 648.13  Transfers at sea.

* * * * *
    (g) All persons are prohibited from transferring at sea, either 
directly or indirectly, or attempting to transfer at sea to any vessel, 
any red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) 
and (ii), taken in or from the EEZ portion of the Red Crab Management 
Unit.

    12. In Sec. 648.14, paragraphs (x)(12) and (dd) are added to read 
as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (x) * * *
    (12) Red crab. All red crab retained or possessed on a vessel 
issued any permit under Sec. 648.4 are deemed to have been harvested in 
or from the Red Crab Management Unit, unless the preponderance of all 
submitted evidence demonstrates that such red crab were harvested by a 
vessel fishing exclusively outside of the Red Crab Management Unit or 
in state waters.
* * * * *
    (dd) In addition to the general prohibitions specified in 
Sec. 600.725 of this chapter and in paragraph (a) of this section, it 
is unlawful for any person to do any of the following:
    (1) Catch, possess, transport, land, sell, trade, barter, butcher 
or partially process at sea any red crab in or from the EEZ portion of 
the Red Crab Management Unit, unless in possession of a valid limited 
access red crab vessel permit or red crab incidental catch permit 
issued by the Northeast Regional Administrator under this subpart.
    (2) Land, or possess on board a vessel, greater than the possession 
or landing limits specified in Sec. 648.263.
    (3) Fail to comply with the recordkeeping and reporting 
requirements of Sec. 648.7.
    (4) Transfer at sea, either directly or indirectly, or attempt to 
transfer at sea to any vessel, any red crab, or its equivalent as 
specified at Sec. 648.263(a)(2)(i) and (ii), taken in or from the EEZ 
portion of the Red Crab Management Unit.
    (5) Purchase, possess, or receive, greater than 500 lb (226.8 kg) 
of whole red crab, or its equivalent as specified at 
Sec. 648.263(a)(2)(i) and (ii), caught in the EEZ portion of the Red 
Crab Management Unit by a vessel that has not been issued a valid 
limited access red crab permit under this subpart.
    (6) Purchase, possess, or receive, up to 500 lb (226.8 kg) of whole 
red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) and 
(ii), caught in the EEZ portion of the Red Crab Management Unit by a 
vessel that has not been issued a valid limited access red crab permit 
or red crab incidental catch permit under this subpart.
    (7) Fish for, catch, possess, transport, land, sell, trade, barter, 
butcher or partially process at sea greater than 500 lb (226.8 kg) of 
whole red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) 
and (ii), per fishing trip, in or from the Red Crab Management Unit, 
unless in possession of a valid limited access red crab vessel permit 
issued by the Northeast Regional Administrator under this subpart and 
fishing under a red crab DAS.
    (8) Fail to comply with the provisions of the DAS notification 
program specified in Secs. 648.262(b)(5) and 648.10, if the vessel has 
been issued a valid limited access red crab permit.
    (9) Fish in the Red Crab Management Unit under a red crab DAS if 
the vessel had declared out of the fishery at least 180 days prior to 
the start of the fishing year.
    (10) Fish for, catch, possess, transport, land, sell, trade, 
barter, butcher or partially process at sea red crab in excess of a 
landing limit specified in Sec. 648.263.
    (11) Possess, deploy, fish with, haul, harvest red crab from, or 
carry on board a vessel, in excess of the trap/pot and/or string limit 
specified at Sec. 648.264(a)(2) when fishing under a red crab DAS.
    (12) Retain, possess or land female red crabs in excess of one 
standard U.S. fish tote if the vessel has been issued a valid limited 
access red crab permit and is fishing under a red crab DAS.
    (13) Retain, possess or land red crab claws and legs separate from 
crab bodies in excess of one standard U.S. fish tote if the vessel has 
been issued a valid

[[Page 41948]]

limited access red crab permit and is fishing under a red crab DAS.
    (14) Retain, possess or land red crab claws and legs separate from 
crab bodies if the vessel has not been issued a valid limited access 
red crab permit or has been issued a valid limited access red crab 
permit and is not fishing under a red crab DAS.
    (15) Retain, possess or land in excess of two claws and eight legs 
per crab if the vessel has been issued a valid red crab incidental 
catch permit or has been issued a valid limited access red crab permit 
and is not fishing under a red crab DAS.(16) Fully process red crabs at 
sea, i.e., any activity that removes meat from any part of a red crab.
    (17) Fail to comply with the gear marking requirements specified at 
Sec. 648.264(a)(5).
    (18) Possess, fish or deploy parlor traps/pots if the vessel has 
been issued a valid limited access red crab permit and is fishing under 
a red crab DAS.
    (19) Possess, fish or deploy red crab traps/pots larger than the 
maximum size specified at Sec. 648.263(a)(4), if the vessel has been 
issued a valid limited access red crab permit and is fishing under a 
red crab DAS.

    13. Subpart M is added to read as follows:

Subpart M--Management Measures for the Atlantic Deep-Sea Red Crab 
Fishery

Sec.
648.260  Annual specifications.
648.261  In-season adjustments and annual specification/framework 
adjustment process.
648.262  Effort-control program for red crab limited access vessels.
648.263  Red crab possession and landing restrictions.
648.264  Gear requirements/restrictions.

Subpart M--Management Measures for the Atlantic Deep-Sea Red Crab 
Fishery


Sec. 648.260  Annual specifications.

    (a) Fishing year. The fishing year begins on March 1 of each year 
and ends on the last day of February of the following year.
    (b) Total allowable catch. The TAC for each fishing year will be 
5.928 million lb (2,688.9 mt), unless modified pursuant to paragraph 
(d) of this section.
    (c) Adjustments to the TAC. Any overage of the TAC for the limited 
access category that occurs in a given fishing year will be subtracted 
from the TAC for that category in the following fishing year. 
Conversely, any underage of the TAC for the limited access category 
that occurs in a given fishing year will be added to the TAC for that 
category in the following fishing year.
    (d) Process for setting annual specifications. The Council's Red 
Crab Plan Development Team (PDT) will meet at least annually to review 
the status of the stock and the fishery. (1) Based on this review, the 
PDT will report to the Council's Red Crab Committee, no later than 5 
months prior to the start of the next fishing year, any necessary 
adjustments to the management measures and recommendations for the 
specifications and/or TACs. Specifications include the specification of 
OY, the setting of any hard or target TACs, allocation of DAS, and/or 
adjustments to trip/possession limits. The PDT will specifically 
recommend TACs for the following year and an estimated TAC for the year 
after. In developing these recommendations the PDT will review the 
following data, if available: Commercial catch data; current estimates 
of fishing mortality and catch-per-unit-effort (CPUE); stock status; 
recent estimates of recruitment; virtual population analysis results 
and other estimates of stock size; sea sampling, port sampling, and 
survey data or, if sea sampling data are unavailable, length frequency 
information from port sampling and/or surveys; impact of other 
fisheries on the mortality of red crabs; and any other relevant 
information.
    (2) Based on recommendations from the Council's Red Crab PDT after 
its review of the available information on the status of the stock and 
the fishery, the Red Crab Committee may recommend to the Council 
changes to the appropriate specifications and/or the annual TAC, as 
well as any measures necessary to assure that the specifications will 
not be exceeded.
    (3) The Council shall review these recommendations and any public 
comment received and shall recommend to the Regional Administrator 
appropriate specifications and/or annual TAC, as well as any measures 
necessary to assure that the specifications will not be exceeded. 
Specifications, and/or TACs and other management measures, shall be 
implemented by the Regional Administrator, and may include the 
specification of OY, the setting of any hard or target TACs, allocation 
of DAS, and/or adjustments to trip/possession limits. Annual 
specifications and other measures shall be implemented through the 
framework adjustment process specified at Sec. 648.261. The previous 
year's specifications/TACs and other measures shall remain effective 
unless changed by the Regional Administrator. If the specifications are 
not changed, this will be announced through notification in the Federal 
Register.


Sec. 648.261  In-season adjustments and annual specification/framework 
adjustment process.

    (a) In-season adjustments. The specifications and TACs established 
pursuant to this section may be adjusted by NMFS, after consulting with 
the Council, during the fishing year by publishing notification in the 
Federal Register stating the reasons for such action and providing an 
opportunity for prior public comment. Any adjustments must be 
consistent with the Atlantic Deep-Sea Red Crab FMP objectives and other 
FMP provisions.
    (b) Annual specification/framework adjustment process. To implement 
annual specifications or a framework adjustment for the Red Crab FMP, 
the Council shall develop and analyze proposed actions over the span of 
at least two Council meetings and provide advance public notice of the 
availability of both the proposals and the analyses. Opportunity to 
provide written and oral comments shall be provided throughout the 
process before the Council submits its recommendations to the Regional 
Administrator.
    (1) In response to an annual review of the status of the fishery or 
the resource by the Red Crab PDT, or at any other time, the Council may 
recommend adjustments to any of the measures proposed by the Red Crab 
FMP. The Red Crab Oversight Committee may request that the Council 
initiate a framework adjustment. Framework adjustments shall require 
one initial meeting (the agenda must include notification of the 
impending proposal for a framework adjustment) and one final Council 
meeting. After a management action has been initiated, the Council 
shall develop and analyze appropriate management actions within the 
scope identified below. The Council may refer the proposed adjustments 
to the Red Crab Committee for further deliberation and review. Upon 
receiving the recommendations of the Oversight Committee, the Council 
shall publish notice of its intent to take action and provide the 
public with any relevant analyses and opportunity to comment on any 
possible actions. After receiving public comment, the Council must take 
action (to approve, modify, disapprove, or table) on the recommendation 
at the Council meeting following the meeting at which it first received 
the recommendations. Documentation and analyses for the framework 
adjustment shall be available at least 2 weeks before the final 
meeting.

[[Page 41949]]

    (2) After developing management actions and receiving public 
testimony, the Council may make a recommendation to the Regional 
Administrator. The Council's recommendation shall include supporting 
rationale, an analysis of impacts required under paragraph 1 of this 
section and a recommendation to the Regional Administrator on whether 
to issue the management measures as a final rule. If the Council 
recommends that the management measures should be issued directly as a 
final rule, the Council shall consider at least the following factors 
and provide support and analysis for each factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether regulations have to be in place for an 
entire harvest/fishing season;
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of the Council's recommended management measures;
    (iii) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts;
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) If the Regional Administrator concurs with the Council's 
recommended management measures, they shall be published in the Federal 
Register. If the Council's recommendation is first published as a 
proposed rule and the Regional Administrator concurs with the Council's 
recommendation after receiving additional public comment, the measures 
shall then be published as a final rule in the Federal Register.
    (4) If the Regional Administrator approves the Council's 
recommendations, the Secretary may, for good cause found under the 
standard of the Administrative Procedure Act, waive the requirement for 
a proposed rule and opportunity for public comment in the Federal 
Register. The Secretary, in so doing, shall publish only the final 
rule. Submission of recommendations does not preclude the Secretary 
from deciding to provide additional opportunity for prior notice and 
comment in the Federal Register.
    (5) The Regional Administrator may approve, disapprove, or 
partially disapprove the Council's recommendation. If the Regional 
Administrator does not approve the Council's specific recommendation, 
the Regional Administrator must notify the Council in writing of the 
reasons for the action prior to the first Council meeting following 
publication of such decision.


Sec. 648.262  Effort-control program for red crab limited access 
vessels.

    (a) General. A vessel issued a limited access red crab permit may 
not fish for, catch, possess, transport, land, sell, trade, barter, 
butcher or partially process at sea greater than 500 lb (226.8 kg) of 
red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) and 
(ii), per fishing trip in or from the Red Crab Management Unit, except 
during a DAS as allocated under and in accordance with the applicable 
DAS program described in this section, unless otherwise provided in 
this part.
    (1) End-of-year carry-over. With the exception of vessels that held 
a Confirmation of Permit History as described in 
Sec. 648.4(a)(13)(i)(J) for the entire fishing year preceding the 
carry-over year, limited access vessels that have unused DAS on the 
last day of February of any year may carry over a maximum of 10 unused 
DAS, or 10 percent of the total allocated DAS, whichever is less, into 
the next fishing year. Any DAS that have been forfeited due to an 
enforcement proceeding will be deducted from all other unused DAS in 
determining how many DAS may be carried over.
    (2) [Reserved]
    (b) DAS program--(1) For fishing year 2002. For the fishing year 
beginning March 1, 2002, each limited access permit holder's allocation 
of DAS shall be based on a baseline of 130 DAS per vessel and, if 
necessary, adjusted as specified below. Based upon the best available 
information, the Regional Administrator shall estimate the landings 
from May 15, 2002, which is the first day following the expiration of 
the red crab Secretarial interim rule, up to the implementation date of 
the red crab limited access program. These estimated total landings 
shall be deducted from the target TAC and the percentage of the TAC 
that remains available shall be used to reduce the initial baseline of 
DAS (i.e., a percentage of 130 DAS to an equivalent percentage). For 
example, if estimated landings equal 20 percent of the target TAC, 
thereby leaving 80 percent of the target TAC, the DAS allocation shall 
be reduced by 20 percent to 104 DAS. Each vessel shall be allocated the 
adjusted DAS for the remainder of the fishing year. The Regional 
Administrator shall publish in the Federal Register the adjusted DAS 
for the remainder of the fishing year.
    (2) For fishing years 2003 and thereafter. Each limited access 
permit holder shall be allocated 156 DAS unless one or more vessels 
declares out of the fishery consistent with Sec. 648.4(a)(13)(i)(B)(2) 
or the TAC is adjusted consistent with Sec. 648.260(c).
    (3) Accrual of DAS. Any portion of a day in which a vessel is out 
of port, after having declared into the DAS fishery, shall count as a 
full DAS. For example, if a vessel calls into the fishery at 11 p.m. on 
Thursday and calls out of the fishery at 10 p.m. on Friday, the next 
day, that vessel shall be assessed 2 full DAS (48 hours) for the 
fishing trip, even though the trip lasted only 23 hours.
    (4) Good Samaritan credit. Same as Sec. 648.53(f).
    (5) Declaring red crab DAS. A vessel's owner or authorized 
representative shall notify the Regional Administrator of a vessel's 
participation in the red crab DAS program using the notification 
requirements specified in Sec. 648.10.
    (6) Adjustments in annual red crab DAS allocations. Adjustments to 
the annual red crab DAS allocation, if required to meet fishing 
mortality goals, may be implemented pursuant to Sec. 648.260(c).


Sec. 648.263  Red crab possession and landing restrictions.

    (a) Vessels issued limited access red crab permits--(1) Possession 
and landing restrictions--(i) A vessel or operator of a vessel that has 
been issued a valid limited access red crab permit under this subpart 
may fish for, catch, possess, transport, land, sell, trade, barter, 
butcher or partially process at sea up to 75,000 lb (34,019.4 kg) per 
trip, unless adjusted consistent with paragraph (a)(1)(ii) of this 
section, of whole red crab, or its equivalent as specified at 
paragraphs (a)(2)(i) and (ii) of this section, per fishing trip when 
fishing under a red crab DAS.
    (ii) A vessel owner or operator who shows credible proof of 
landings on one trip higher than 75,000 lb (34,019.4 kg) shall qualify 
for a larger trip limit, rounded to the nearest 5,000 lb (2,268 kg) 
during the limited access qualification period of the higher trip 
landed. Such proof must be received by NMFS within 30 days after 
receipt of a vessel owner's application for an initial limited access 
red crab vessel permit. A vessel owner shall fish consistent with the 
provisions and trip limit specified at paragraph (a)(1)(i) of this 
section until credible proof of a trip higher than 75,000 lb (34,019.4 
kg) is approved by NMFS.
    (2) Conversion to whole crab weight. (i) For red crab that is 
landed in half sections, with all gills and other detritus

[[Page 41950]]

still intact, the recovery rate is 64 percent of a whole red crab, 
which is equal to the weight of red crab half sections multiplied by 
1.56.
    (ii) For red crab that is landed in half sections, with all gills 
and other detritus removed, the recovery rate is 58 percent of a whole 
red crab, which is equal to the weight of red crab half sections 
multiplied by 1.72.
    (3) Female red crab restriction. A vessel may not fish for, catch, 
possess, transport, land, sell, trade, barter, butcher or partially 
process at sea female red crabs in excess of one standard U.S. fish 
tote of incidentally caught female red crabs per trip when fishing 
under a red crab DAS.
    (4) Full-processing prohibition. No person may fully process at 
sea, or possess, or land, fully-processed red crab (i.e., the removal 
of meat from any part of a red crab is not permitted).
    (5) Mutilation restriction. A vessel may not retain, possess or 
land red crab claws and legs separate from crab bodies in excess of one 
standard U.S. fish tote per trip when fishing under a red crab DAS.
    (b) Vessels issued red crab incidental catch permits--(1) 
Possession and landing restrictions. A vessel or operator of a vessel 
that has been issued a red crab incidental catch permit may catch, 
possess, transport, land, sell, trade, barter, butcher or partially 
process at sea up to 500 lb (226.8 kg) of red crab, or its equivalent 
as specified at Sec. 648.262(a)(i) and (ii), per fishing trip in or 
from the Red Crab Management Unit.
    (2) Full-processing prohibition. No person may fully process at 
sea, or possess, or land, fully-processed red crab (i.e., the removal 
of meat from any part of a red crab is not permitted).
    (3) Mutilation restriction. A vessel may not retain, possess or 
land red crab claws and legs separate from crab bodies.


Sec. 648.264  Gear requirements/restrictions.

    (a) Limited access red crab permitted vessels. (1) No vessel may 
haul any fishing gear other than red crab traps/pots, marked as 
specified by paragraph (a)(5) of this section, when on a red crab DAS.
    (2) A vessel or operator of a vessel may fish with, deploy, 
possess, haul, harvest red crab from, or carry on board a vessel, up to 
a total of 600 traps/pots when fishing for, catching, or landing red 
crab when on a red crab DAS. A vessel owner is required to declare, on 
the annual permit application, the maximum number of traps/pots used 
per string and the maximum number of strings employed, such that the 
product of the maximum number of traps/pots per string and the maximum 
number of strings declared is no more than 600 traps/pots. The vessel 
is restricted to the product of the maximum number of traps/pots per 
string multiplied by the maximum number of strings declared on the 
annual vessel permit application.
    (3) Parlor traps/pots. The use of parlor traps/pots in the red crab 
fishery is prohibited when fishing in the red crab fishery under a red 
crab DAS.
    (4) Maximum trap/pot size. The maximum allowable trap/pot size of 
traps/pots used or deployed on a red crab DAS is 18 cubic feet (0.51 
cubic meters) in volume. Traps/pots may be rectangular, trapezoidal or 
conical only, unless other new trap/pot designs whose volume does not 
exceed 18 cubic feet (0.51 cubic meters) are authorized by the Regional 
Administrator.
    (5) Gear markings. The following is required on all buoys used at 
the end of each red crab trawl:
    (i) The letters ``RC'' in letters at least 3 inches (7.62 cm) in 
height must be painted on top of each buoy.
    (ii) The vessel's permit number in numerals at least 3 inches (7.62 
cm) in height must be painted on the side of each buoy to clearly 
identify the vessel.
    (iii) The number of each trap trawl relative to the total number of 
trawls used by the vessel (i.e., ``3 of 6'') must be painted in 
numerals at least 3 inches (7.62 cm) in height on the side of each 
buoy.
    (iv) High flyers and radar reflectors are required on each trap 
trawl.
[FR Doc. 02-15595 Filed 6-19-02; 8:45 am]
BILLING CODE 3510-22-S