[Federal Register Volume 67, Number 197 (Thursday, October 10, 2002)]
[Rules and Regulations]
[Pages 63222-63235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25459]



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Part IV





Department of Commerce





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 National Oceanic and Atmospheric Administration



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15 CFR Part 902

50 CFR Part 648



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; Final Rule

  Federal Register / Vol. 67, No. 197 / Thursday, October 10, 2002 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 020531136-2224-02; 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:  Final rule.

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SUMMARY: NMFS issues this final rule to implement approved measures 
contained in the Atlantic Deep-Sea Red Crab Fishery Management Plan 
(FMP). These regulations implement the following measures: 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 intended effect of this final rule 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. Also, NMFS informs the 
public of the approval by the Office of Management and Budget (OMB) of 
the collection-of-information requirements contained in this final rule 
and publishes the OMB control numbers for these collections.

DATES:  This final rule is effective on October 21, 2002.

ADDRESSES: Copies of the FMP, its Regulatory Impact Review (RIR), the 
Final Regulatory Flexibility Analysis (FRFA), and the Final 
Environmental Impact Statement (FEIS), as prepared by the New England 
Fishery Management Council (Council), are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, The Tannery--Mill 2, Newburyport, MA 01950.
    Comments regarding the collection-of-information requirements 
contained in this final rule should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (Attn: NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION: This final rule implements approved measures 
contained in the FMP, which was approved by NMFS on behalf of the 
Secretary of Commerce (Secretary) on July 31, 2002.
    Details concerning the justification for and development of the FMP 
and the implementing regulations were provided in the preamble to the 
proposed rule (67 FR 41936, June 20, 2002) and are not repeated here.

Maximum Sustainable Yield (MSY)

    MSY is estimated at 6.24 million lb (2,830.4 mt) for the male-only 
red crab fishery. It 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 overfishing definition considers both the rate of exploitation 
and the condition of the stock. Overfishing is defined as any rate of 
exploitation that causes the ratio of current exploitation to an 
idealized exploitation under MSY conditions to exceed 1.0. Several 
methods may be used to define idealized exploitation, depending on the 
type of data available.
    The red crab stock is 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 red crab 
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 is specified at 95 percent of MSY, or 5.928 million lb (2,689 
mt). This approach is intended to incorporate future changes in 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.

Approved Measures

Management Unit

    The boundaries of the management unit are limited to the waters 
north of 35[deg]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) (66 FR 23183, 
May 8, 2001 and 66 FR 56781, November 13, 2001), incorporate a well-
known bio-geographic boundary (Cape Hatteras, NC), and are consistent 
with other New England Council FMPs.

Fishing Year

    The fishing year begins 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 will 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 wants to fish for, catch, 
possess, transport, land, sell, trade, or barter red crab or red crab 
parts in or from the red crab management unit is required to obtain a 
Federal red crab permit. One of two types of Federal permits is 
required: (1) A limited access red crab permit is required for vessels 
to participate in the directed fishery (this permit is issued only to 
vessels that meet specified eligibility criteria); and (2) a red crab 
incidental catch permit is required in order for any vessel to land an

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incidental catch of red crabs up to 500 lb (226.8 kg) per fishing trip. 
All vessels are eligible for this permit. Vessels issued the limited 
access permit are also allowed to fish under the red crab incidental 
catch rules if they do not declare their intent to use a red crab DAS.
    Owners of vessels issued a limited access red crab permit may, upon 
permit renewal beginning with the second fishing year, declare out of 
the red crab fishery for the following fishing year by submitting a 
binding declaration to the Administrator, Northeast Region, NMFS 
(Regional Administrator) at least 180 days prior to the following 
fishing year. NMFS will 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 declares out of the fishery for the 
following year must wait until the next year's permit renewal 
application process to declare back into the fishery for the next full 
fishing year.
    Vessel owners have 180 days from the effective date of this final 
rule to apply for their initial limited access permits. Therefore, a 
vessel owner must apply for an initial limited access red crab permit 
before April 8, 2003. No vessel owner may apply for an initial limited 
access red crab permit after this date. Pursuant to Sec.  
648.4(a)(1)(i)(B), any owner who fails to renew his/her limited access 
permit for any fishing year will be ineligible to renew it in 
subsequent years.
    As part of the application for a limited access red crab permit, 
vessel owners must declare the maximum number of traps/pots they use 
per string and the maximum number of strings they intend to employ 
annually, 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 are required 
to obtain a Federal dealer permit. Red crabs harvested from the red 
crab management unit may only be sold by a federally permitted vessel 
to federally permitted dealers.
    Operators of vessels issued a Federal red crab vessel permit must 
obtain a Federal operator permit. An individual who already holds an 
operator permit for another federally managed fishery need not reapply, 
since there is no qualification or test for this permit.

Qualification Criteria for Limited Access

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

Reporting Requirements

    This rule extends the existing Northeast Region Vessel Trip Report 
(VTR) system to vessels with red crab permits. The owner or operator of 
vessels issued either a limited access or incidental catch permit must 
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 must complete and submit accurate VTRs for all 
fishing trips, regardless of whether they fish for or land any red 
crab.
    Owners or operators of vessels participating in the limited access 
fishery must also 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 must 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) may 
be submitted electronically or through other media. The report must be 
provided weekly, and must be postmarked and received within 16 days 
after the end of each reporting week. A negative report is required if 
there are no purchases of any species during the reporting week.

Target TAC

    An annual specifications process provides 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 also include 
the specification of OY and/or adjustments to trip/possession limits. 
The Council's Plan Development Team (PDT) will 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 will be counted against a target TAC. The target TAC 
will 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 will 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 
(i.e., a 822,000 lb (372,853 kg) overage), then the target TAC for the 
following year may be set no higher than 5.106 million lb (2,316 mt) 
(5.928 million lb - 822,000 lb = 5.106 million lb). 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) 
underage), then the target TAC may be set at 6.606 million lb (2,996 
mt). The target TAC for the first full fishing year, March 1, 2003 
through February 29, 2004, is 5.928 million lb (2,689 mt) of whole red 
crab or its equivalent. The target TAC for the initial fishing year is 
discussed under ``DAS allocation for Initial Implementation Year'', 
below.

Allocations of Red Crab DAS

    Along with the annual target TAC, the annual specification process 
involves calculation of the total DAS that may be utilized by the 
directed fishery, based on the average catch per DAS from the previous 
year. Total DAS are 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 may 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 will not be wasted, while providing no incentive to hoard DAS. 
In addition, a carry-over provision enhances safety at sea by creating 
a disincentive for a vessel to use up remaining DAS at the end of a 
fishing year, notwithstanding bad weather conditions. This measure also 
limits the potential annual fishing capacity to roughly 10 percent 
above the baseline. An initial baseline of 130 DAS is established for 
each limited access vessel for the fishing year that ends February 28, 
2003, because this rule first implements the red crab management 
measures well after the start of the initial fishing year (March 1, 
2002). Therefore, the management measures

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will not be in effect for a full fishing year.
    From March 1, 2003, through February 29, 2004, each participating 
vessel will 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 will remain the baseline unless modified through 
the specification process in the FMP.
    A DAS is counted as a whole day (24 hours). Any portion of a day on 
which a vessel is out of port counts as a full DAS. For example, if a 
vessel embarks on a fishing trip at 11:00 p.m. on June 1, that day of 
departure counts as one DAS. If it returns from the trip at 1:00 a.m. 
on June 10, that day of return also counts as one DAS. The vessel will 
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, 
as is the case in the Northeast multispecies and Atlantic sea scallop 
fisheries.

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 regulatory hiatus 
period between the expiration of the red crab emergency regulations on 
May 14, 2002, and implementation of the FMP, the Regional Administrator 
will calculate the amount of red crab landed during that period. This 
landings total will be deducted from the target TAC (5.928 million lb) 
(2,689 mt) and the remainder is the amount of target TAC available for 
the initial fishing year under the DAS program. The percentage of the 
target TAC remaining will be calculated and vessels participating in 
the DAS program will 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 
will be reduced by 20 percent, with the result rounded down to the 
nearest whole number). The calculated DAS allocation will be provided 
to permit holders by letter.

Trip Limits During a Red Crab DAS

    All vessels issued a limited access red crab permit will 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 can document at least one trip with 
higher landings during the limited access qualification period, then 
that vessel will qualify for a trip limit equal to the larger trip, 
rounded to the nearest 5,000 lb (2,268 kg). A vessel that landed crab 
in other than whole form must apply the more appropriate of two 
recovery rate formulas, or a formula approved by the Regional 
Administrator, in accordance with Sec.  648.263(a)(2) to determine its 
highest landings on a trip during the qualification period. 
Documentation of the highest landings on a trip 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 must 
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, will be implemented for all vessels issued a red 
crab incidental catch permit. This incidental catch limit will 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 is prohibited, except for an incidental catch 
allowance equal to the amount that will fill one standard U.S. fish 
tote (approximately 100 lb (45.4 kg)) per vessel per trip. This measure 
does 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 rule prohibits the full processing of red crabs at sea, but 
allows landing of crabs in less than whole form, provided crabs are 
landed as described below. ``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 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 for and 
prevent the harvesting of red crabs for their claws and/or legs alone. 
This measure will 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 may possess red crab claws and legs separate from crab 
bodies equal to the amount that will fill one standard U.S. fish tote 
(approximately 100 lb (45.4 kg)) per vessel per trip. 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 may 
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 are 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 is less than 600, the vessel is 
subject to that declared limit on traps/pots.
    Vessels issued a limited access red crab permit and fishing under a 
red crab DAS are prohibited from deploying, hauling, or removing fish 
from any fishing gear other than red crab gear. Red crab gear is 
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 is 18 ft\3\ (0.51 
m\3\) in volume. In addition, all red crab traps/pots must be 
rectangular, trapezoidal or conical, unless other designs whose volume 
does not exceed 18 ft\3\ (0.51 m\3\) are authorized by the Regional 
Administrator. In conjunction with the trap/pot limit described above, 
this will prevent a potential increase in the per-day efficiency of 
vessels fishing under a red crab DAS.
    Only red crab traps/pots may be used by a vessel fishing in the 
limited access

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red crab fishery when fishing under a red crab DAS, in order to enhance 
conservation of red crabs and reduce the possibility of ghost fishing 
(i.e., fishing that continues when traps/pots or buoys are lost). 
Because red crab traps/pots, unlike parlor traps/pots, do not prevent 
the eventual escape of crabs from the trap, many of the crabs that 
might enter the traps during the period between trips will be gone 
before the vessel returns to haul the traps on a subsequent trip. 
Therefore, by prohibiting the use of compartments in red crab traps/
pots there is no longer the possibility of red crabs dying in a trap/
pot before the trap/pot is hauled. 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, are not prohibited from deploying, hauling, or removing fish 
from parlor traps/pots or using non-trap/pot gear.

Annual Monitoring and Framework Adjustment Measures

    The Council must prepare a biennial Stock Assessment and Fishery 
Evaluation (SAFE) Report for the red crab fishery and its resource. The 
Red Crab PDT must meet at least annually to review the status of the 
stock and the fishery. The PDT must report any necessary adjustments to 
the measures and recommendations for the specifications and TACs to the 
Council's Red Crab Committee, which in turn must recommend appropriate 
changes to the Council. Specifications must be recommended to NMFS, and 
changes to management measures may 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, is similar to that used in other 
Northeast Region fisheries. This process allows 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 must meet to 
develop new management measures to the FMP. Either during or at the 
conclusion of the framework process, the public will be provided an 
opportunity to offer comments on the Council's framework adjustment 
process and the newly-developed management measures.
    The management measures and/or changes to them may 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 essential fish habitat 
(EFH); (5) description and identification of habitats of particular 
concern (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 as 
described in the FMP. 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 
regulations 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

    Depth zone affinities are used to describe EFH for red crab. EFH 
for red crab includes those areas of the offshore waters (out to the 
offshore U.S. boundary of the EEZ), in depths of 200-1,800 m, as 
identified and described in section 3.7.4 of the FMP. The activity 
managed by the FMP occurs in a limited area and a narrow depth band 
along the continental slope of the United States, from the southern 
flank of Georges Bank south to Cape Hatteras, NC. The range of this 
activity occurs across the designated EFH of 11 species managed by the 
New England, Mid-Atlantic and South Atlantic Fishery Management 
Councils. As discussed in Section 3.7.6 of the FMP, no adverse impacts 
are expected on the EFH of these species and no further mitigation is 
practicable or necessary. Potential impacts to EFH associated with this 
fishery are expected to decrease as a result of this action, based on 
the overall controls on the fishery, the trap/pot limit, the non-trap/
pot gear prohibition, and the controlled access program, which will 
limit the number of participants.
    This rule also revises 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.

Comments and Responses

    Three sets of written comments on the FMP were received during the 
comment period on the FMP, which ended July 1, 2002. The comments were 
considered by NMFS before it approved the FMP on July 31, 2002, and are 
included below.
    NMFS also received four sets of written comments on the proposed 
rule, some of which included comments on the FMP, during the comment 
period specified in the proposed rule, which ended on July 23, 2002. 
Because the comment period for the proposed rule was distinct from, and 
followed, the comment period for the FMP, comments received during the 
proposed rule comment period were not considered in NMFS' determination 
to approve the FMP. However, the comments addressing the proposed rule 
were considered in approval and implementation of this final rule 
effecting the FMP and its management measures and are responded to 
here.
    Comment 1: The United States Coast Guard (USCG) expressed concern 
with the enforceability of the proposed trap/pot limits. While it said 
that gear marking and declaration requirements will help mitigate its 
enforcement concerns, it would be problematic to confirm the actual 
number of traps per set and number of sets deployed on the fishing 
grounds. It further stated that it would also be difficult to confirm 
the use and ownership of any unmarked gear on the fishing grounds. 
Because USCG cutters are not equipped to haul fixed fishing gear, 
especially in deep water, inspections, it stated, would have to be 
limited to random opportunities when cutters detect fishing vessels 
actively retrieving gear.
    Response: The problem raised by USCG about enforcing trap/pot and 
set limits is an unavoidable one for trap/pot fisheries. However, 
because this fishery is so small, NMFS believes that the potential for 
at-sea intervention by the USCG will serve as a sufficient deterrent.
    Comment 2: The United States Environmental Protection Agency (EPA) 
commented that its previous concerns with the draft EIS had been 
resolved with one exception--ghost fishing (as it relates to entrapment 
of marine life). EPA stated that it would like to see a

[[Page 63226]]

ghost panel required, preferably on two adjacent trap/pot surfaces, in 
the traps/pots used by the directed fishery, because trap materials of 
wood and wire mesh can last a long time in the marine environment, 
especially in a deep-sea cold water environment. As stated in the draft 
EIS, an average of 10.5 red crab traps/pots are lost/damaged per 
fishing trip. EPA calculated that approximately 2,000 traps/pots are 
potentially lost or broken annually. It said that over a 10-year 
period, this would put a substantial amount of gear on the sea floor.
    Response: Ghost fishing by red crab traps/pots is not an issue of 
concern. Red crab traps/pots, unlike the parlor traps/pots used in the 
lobster fishery, do not prevent the escapement of crabs or other fish 
that enter the trap.
    Comment 3: Three commenters were concerned with the method of 
counting DAS. Under the proposed rule, any portion of a day on which a 
vessel is out of port would count as a full DAS. They stated that this 
method of counting DAS has no bearing on the conservation of the red 
crab resource but has serious implications for the safety and 
operational economics of red crab vessels and crew, which one commenter 
believes to be contrary to National Standards 5, 8 and 10. In 
illustration, the commenter pointed out that, in order to conserve a 
DAS, a vessel would wait until midnight to sail; that sailing during 
darkness will increase the risk of collision; and that the captains and 
crews would be hampered by darkness and operating when their biological 
clocks tell them they are expected to be asleep. The commenter further 
stated that disruptions to existing operating practices will reduce 
efficiency, create an unnecessary burden on fishing communities, and 
create incentives that compromise safe operations. The commenters urge 
NMFS to modify this method of counting DAS by counting on an hourly 
basis.
    Response: The commenters' arguments are based on their contention 
that leaving at midnight is contrary to current practice. In fact, NMFS 
believes that leaving at midnight, or even a few hours after midnight, 
is not unusual. NMFS also believes that crews often work in the dark, 
sometimes during long shifts. Vessels are free to sail at any time, and 
sailing at a time perceived to be safe is totally within the discretion 
of the vessel owner or captain.
    As for operational economics, NMFS disagrees that the FMP's method 
of counting DAS reduces efficiency or creates an unnecessary burden on 
fishing communities. The method of counting DAS applies equally to all 
vessels in the fishery, which is controlled by a target Total Allowable 
Catch. Under the FMP, the allocation of DAS to vessels each year will 
take overages and underages into consideration. If more DAS are 
required due to underages, even if they are perceived to have occurred 
as a result of the method of counting DAS, more DAS would be allocated.
    Comment 4: The SAFMC expressed concern regarding the southern 
boundary. The proposed southern border of the Red Crab Management Area 
includes the area between the VA/NC border and Cape Hatteras, NC. The 
northernmost border for the SAFMC's Golden Crab FMP is the VA/NC 
border. Red crab and Jonah crab are included in the golden crab fishery 
but are not managed under the Golden Crab FMP. The SAFMC commented 
that, because of this proposed area overlap, significant negative 
impacts to the SAFMC's golden crab fishery would result from approval 
of this measure in the FMP. The SAFMC stated that, under the FMP, 
vessels could fish within the area of overlap but would have to discard 
all golden crabs, which would be wasteful and result in conflict with 
South Atlantic fishermen deploying golden crab traps. It also stated 
that the potential for having red crab vessels fishing in the area of 
overlap may deter Southern Zone vessels that had planned to transfer to 
the Northern Zone from doing so, thereby exacerbating conflicts within 
the Southern Zone. The SAFMC requested that NMFS disapprove the 
proposed management unit and approve the alternative with the boundary 
at the VA/NC border.
    Response: During the public review phase of the FMP development 
process, the NEFMC received reports that the Atlantic deep-sea red crab 
fishery extended south to Cape Hatteras, NC (although most activity was 
reported to be constrained to the area north of Norfolk Canyon). The 
reason reported for not fishing south of Cape Hatteras, NC was that 
there is a significant diminishment in the abundance of market-sized 
crabs south of Cape Hatteras. Although there are no known boundaries of 
different red crab stocks, Cape Hatteras, NC is a well-known bio-
geographic boundary that may keep separate red crab larvae from north 
and south of this line. The Northeast Fisheries Science Center is 
exploring genetic differences between red crabs found north of Cape 
Hatteras, south of Cape Hatteras, and in the Gulf of Mexico. The 
establishment of Cape Hatteras, NC, as the southernmost boundary of the 
Atlantic deep-sea red crab fishery not only comports with the 
aforementioned rationale, but is consistent with the management areas 
specified in the previous red crab emergency rule and in most other 
NEFMC FMPs.
    Red crabs are not included in the management unit of the Golden 
Crab FMP, and golden crabs are not included in the management unit of 
the Red Crab FMP; therefore, there is no direct conflict in management 
jurisdiction. Extending the red crab management unit to Cape Hatteras 
is intended to prevent overfishing of the red crab resource by 
controlling fishing effort in this area. If the southern boundary of 
the management unit were established at the VA/NC border, any vessel 
would be able to fish for red crab between the border and Cape Hatteras 
with no restrictions on effort, landings, or gear. In fact, this could 
result in localized overfishing of the red crab resource and an 
increase in potential gear conflicts if vessels moved into this area to 
avoid the regulations that exist north of the management unit boundary.
    NMFS believes the SAFMC's concern that red crab vessels fishing in 
the area between the VA/NC border and Cape Hatteras would deter 
Southern Zone vessels from transferring to the Northern Zone because of 
gear conflict possibilities is likely unwarranted. First, due to the 
establishment of a limited access program in the red crab fishery, NMFS 
anticipates that no more than four or five red crab vessels will be 
authorized to fish at more than incidental catch levels (most Northeast 
red crab vessels fish north of Hudson Canyon). Second, the area of 
overlap is small relative to SAFMC's entire Northern Zone, which runs 
from the VA/NC border to a point just south of Daytona Beach, FL. Given 
the very broad range of the two fisheries (Daytona Beach, FL, to the 
VA/NC border and Georges Bank to Cape Hatteras, NC for golden crab and 
red crab, respectively), and the limited number of vessels allowed to 
operate in these areas, it seems unlikely that there would be 
significant gear conflicts in the relatively small area of overlap.
    Finally, regulating the harvest of red crabs north of Cape 
Hatteras, NC would not negatively impact or retard development of the 
golden crab fishery north of Daytona Beach, FL. Vessels permitted to 
fish for red crab will not be allowed to retain any golden crabs, 
unless they also possess a golden crab permit issued by the Southeast 
Region, NMFS.

Changes from the Proposed Rule

    In Sec.  648.264, paragraph (a)(6) is added. Paragraph (a)(6) 
corrects an inadvertent omission in the proposed

[[Page 63227]]

rule to reflect that the red crab fishery falls under the Marine Mammal 
Protection Act Category I Lobster Trap/Pot fishery. The effect is that 
vessels in this fishery are required to comply with the applicable gear 
restrictions for that fishery, including a required weak link at the 
buoy that breaks away knotless at 3,780 lb (1,714.6 kg) and a 
requirement for marking of gear as specified at Sec.  229.32. Also, red 
crab fishing gear, fished in 200 fathoms (365.8 m) or less by a vessel 
issued a limited access lobster permit under Sec.  697.4(a), must 
comply with the trap tagging requirements specified at Sec.  697.19.
    NOAA codifies its OMB control numbers for information collection 15 
CFR part 902. Part 902 collects and displays the control numbers 
assigned to information collection requirements of NOAA by OMB pursuant 
to the Paperwork Reduction Act (PRA). This final rule codifies OMB 
control number for 0648-0202 for Sec.  648.262 and 0648-0351 for Sec.  
648.264. Under NOAA Administrative Order 205-11, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere, NOAA, has 
delegated to the Assistant Administrator for Fisheries, NOAA, the 
authority to sign material for publication in the Federal Register.

Classification

    The Administrator, Northeast Region, NMFS, determined that the FMP 
implemented by this rule is necessary for the conservation and 
management of the Atlantic deep-sea red crab fishery and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive all but 10 days of the 30-day delayed 
effectiveness period of the implementing regulations contained in this 
final rule. It is contrary to the public interest to delay for more 
than 10 days the effective date of regulatory provisions establishing 
the specification process and management measures because, there exist 
currently, no measures to protect the red crab resource or to limit 
catching and landing red crabs from the 2002 TAC.
    Vessels are currently fishing on the red crab resource and the 
threat of overfishing the resource is the primary problem needing 
management action. In order to address this threat, NMFS implemented 
emergency regulations on May 8, 2001, through November 14, 2001, to 
prevent overfishing of the resource. The emergency regulations were 
extended from November 15, 2001, through May 14, 2002. The fishery has 
been unregulated since the expiration of the emergency rule.
    Overfishing is of particular concern due to the nature of the 
species because red crabs are typically slow-growing and major 
recruitment events are believed to rarely occur. The best scientific 
information available indicates that when the fishable stock of this 
resource was under virgin conditions, the maximum sustainable yield of 
red crab was 5.5 million pounds. Since this estimation was derived, 
commercial landings have exceeded this amount several times. All the 
current information available on the red crab and its fishery indicates 
that there is a limited MSY that can be harvested by only four to six 
vessels fishing at existing levels of capacity. Without regulations in 
place to limit the effort and total catch of the resource, overfishing 
is likely to occur. Therefore, there is also an immediate conservation 
benefit that would arise by waiving all but 10 days of the delayed 
effectiveness period, as there would be measures in place to protect 
the resource. This 10-day delay period is the minimum necessary to 
allow fishers and dealers to obtain newly required permits. Therefore, 
the Assistant Administrator for Fisheries, NOAA, finds good cause under 
5 U.S.C. 553(d)(3) to waive all but 10 days of the 30-day delayed 
effectiveness period of the implementing regulations.
    A final environmental impact statement was prepared for this FMP; a 
notice of availability was published on May 31, 2002 (67 FR 38100). 
NMFS determined, upon review of the FMP/FEIS and public comments, that 
approval and implementation of the FMP is environmentally preferable to 
the status quo. The FEIS demonstrates that it contains management 
measures able to mitigate, to the extent possible, all possible social 
and economic adverse effects while minimizing risks to the resource and 
its environment; and will have significant positive effects on the red 
crab resource relative to the no action alternative.
    An FRFA was completed for this action that contains the items 
specified in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the 
comments and responses to the proposed rule, and a summary of the 
analyses completed in support of this action. A copy of the analyses is 
available from the Council (see ADDRESSES). The preamble to the 
proposed rule included a detailed summary of the analyses contained in 
the IRFA, and that discussion is not repeated in its entirety here. A 
description of the action, a discussion of why it is being considered, 
and its legal basis are also contained in the preamble to the proposed 
rule and are not repeated here. The summary of the analyses of the 
potential impacts of the management alternatives considered in the FMP 
are provided in the Classification section of the proposed rule and are 
not repeated here. The items specified in 5 U.S.C. 604(a) are 
summarized as follows:

Public Comments

    Four comments were received on the measures contained in the 
proposed rule. Comments did not address the economic impact of the 
rule. No changes were made to the measures outlined in the proposed 
rule as a result of the comments received.

Number of Small Entities

    The IRFA identified 86 individual vessels that reported some 
landings of red crab during 1991-2001, all of which appear to be small 
entities.

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. No professional skills are necessary to comply 
with any of the reporting requirements associated with this action.

Minimizing Significant Economic Impacts on Small Entities

    Alternatives considered by the Council to lessen impacts on small 
entities are summarized below. The Council considered establishing less 
restrictive eligibility criteria, and

[[Page 63228]]

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 by this final rule compared to that alternative 
because the 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 Council selected 
the more restrictive criteria because all of the information available 
indicated that four to six vessels fishing at existing levels of 
capacity represented the maximum amount of harvesting that could be 
sustained by the resource.
    The IRFA also evaluated the impact of the limited access program by 
comparing the qualifying vessels with the vessels that fished multiple 
times under LOAs issued under the emergency regulations. This 
comparison indicated that one entity might be excluded from the 
directed fishery under the approved qualification 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 would have been severe 
if it had intended to fish for red crabs, but cannot be detailed in the 
IRFA because of data confidentiality restrictions.
    The revenue effects on these impacted entities will 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.
    In addition to the management program implemented by this final 
rule, the Council considered and rejected eight other management 
alternatives and a ``no action'' alternative, which are incorporated by 
reference in the FRFA. When compared with the ``no action'' 
alternative, all of the alternatives would have a positive economic 
effect on the level of harvest. An analysis indicated that the 
management program implemented by this final rule would best minimize 
significant economic impacts while achieving the conservation goals and 
objectives of the FMP. The preferred alternative will reverse recent 
overcapacity in the fishery (which could have severely impacted the 
full-time small entities), and provides operational flexibility to the 
full-time small entities participating in the fishery (which minimizes 
the economic impacts of necessary constraints on fishing effort). For a 
description of the alternatives considered but rejected, see the IRFA 
discussion in the Classification section of the proposed rule (67 FR 
41936).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the Atlantic deep-sea red crab 
fishery. In addition, copies of this final rule and guide (i.e., permit 
holder letter) are available from NMFS (see ADDRESSES) and at the 
following web site: http://www.nmfs.gov/ro/doc/nero.html.

Need for and Objectives of the Final Rule

    This final rule is necessary to implement approved measures 
contained in the Atlantic Deep-Sea Red Crab FMP. The intent of this 
final rule is to manage the red crab fishery pursuant to the Magnuson-
Stevens Act and the FMP in order to prevent overfishing of the red crab 
resource.
    This rule contains eight collection-of-information requirements 
subject to the Paperwork Reduction Act. The collection of this 
information has been approved by the Office of Management and Budget. 
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).
    No professional skills are necessary for preparation of reports or 
records specified above.
    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

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.


[[Page 63229]]


    Dated: October 1, 2002.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 15 CFR chapter IX, part 
902 and 50 CFR chapter VI, part 648 are amended as follows:

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 350 et seq.

    2. In Sec.  902.1, the table in paragraph (b) under 50 CFR is 
amended by adding entries for Sec.  648.262 and Sec.  648.264 to read 
as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

CFR part or section where the         Current OMB control number(all
 information collection requirement    numbers begin with 0648-)
 is located
-------------------------------------
 
                                * * * * *
50 CFR
 
                                * * * * *
648.262                               -0202
648.264                               -0351
 
                                * * * * *
------------------------------------------------------------------------

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 ``Processing, or to process, 
in the Atlantic Herring fishery'' and ``Processor'' are removed; the 
definitions of ``Council'', ``Day(s)-at-Sea'', and ``Fishing year'' are 
revised; the definition of ``Sorting machine'' is removed and a 
definition of ``Sorting machine, with respect to the Atlantic sea 
scallop fishery'' is added in its place; and new definitions for 
``Atlantic deep-sea red crab (red crab)'', ``Full-processing (fully 
process or fully processed), with respect to the Atlantic deep-sea red 
crab fishery'', ``Parlor trap/pot'', ``Processing, or to process with 
respect to the Atlantic herring fishery'', ``Processor, with respect to 
the Atlantic surf clam and ocean quahog fisheries'', ``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 period 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 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 or fully processed), 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 more than one compartment inside designed to impede escape of 
lobsters or crabs from the device or structure, which 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.
    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.
    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.
* * * * *
    Red Crab Management Unit means an area of the Atlantic Ocean from 
35[deg] 15.3' 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 or parlor trap/pot, 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:

[[Page 63230]]

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, or barter, any red 
crab or red crab part 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 for 
2002. A vessel owner must apply for an initial limited access red crab 
permit before April 8, 2003. No vessel owner may apply for an initial 
limited access red crab permit after this date.
    (2) Fishing years 2003 and beyond. (i) For fishing years beyond the 
initial year, the provisions of paragraph (a)(1)(i)(B) of this section 
apply.
    (ii) A limited-access permit holder 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 
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. Any limited-access permit holder who has submitted a binding 
declaration must submit either a new binding declaration or a renewal 
application for the year after which they were declared out of the 
fishery.
    (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. 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, provided 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 indicated on the vessel's initial 
limited access permit as of the date the initial vessel applies 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 and has not been replaced, 
must apply for and receive a CPH that confirms 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 met 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 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 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 April 8, 2003 
to complete the qualification requirements.
    (2) If the vessel owner has not been notified that the vessel is 
eligible to be

[[Page 63231]]

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 April 8, 2003 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 in 
writing 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 for and land red crab as if a limited 
access permit had been issued, 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. During the appeal, the vessel may only land up to 
75,000 lb (34,019 kg) of red crab per trip. 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 
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.
    (ii) 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, 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).
* * * * *

    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 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

[[Page 63232]]

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 this section.
    (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. The report shall include at least the following 
information, and any other information required by the Regional 
Administrator: Vessel identification, DAS confirmation number, trip 
during which species are caught, date landed, condition (whole, half 
sections with gills, half sections without gills), and pounds landed. 
IVR reporting does not exempt the owner or operator from other 
applicable reporting requirements of this section.
* * * * *

    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-in 
requirement that possesses or lands regulated species, except as 
provided in Sec. Sec.  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 red crab parts, 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, or barter, any 
red crab or red crab parts 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 
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 red crab parts, 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 in weight as

[[Page 63233]]

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 in weight 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, or 
barter, greater than 500 lb (226.8 kg) of whole red crab, or its 
equivalent in weight 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 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 Sec. Sec.  648.262(b)(5) and 648.10, if the vessel 
has been issued a valid limited access red crab permit.
    (9) Fish for, catch, possess, transport, land, sell, trade, or 
barter, in the Red Crab Management Unit under a red crab DAS if the 
vessel has declared out of the fishery prior to the start of the 
fishing year.
    (10) Fish for, catch, possess, transport, land, sell, trade, or 
barter, red crab in excess of landing limits 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 limited access red crab permit and is fishing under 
a red crab DAS.
    (14) Retain, possess, or land any 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, unless a preponderance of the 
evidence shows that the vessel fished exclusively in state waters and 
has not been issued a valid federal permit.
    (17) Fail to comply with any gear marking requirement 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 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) 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. Based on this review, the PDT 
will report to the Council's Red Crab Committee, no later than October 
1, any necessary adjustments to the management measures and 
recommendations for the specifications. Specifications include the 
specification of OY, the setting of any target TACs, allocation of DAS, 
and/or adjustments to trip/possession limits. The PDT will specifically 
recommend target TACs for the following year and an estimated target 
TAC for the year after.
    (1) Target total allowable catch. The target TAC for each fishing 
year will be 5.928 million lb (2,688.9 mt), unless modified pursuant to 
this paragraph.
    (2) Adjustments to DAS allocation based on target TAC. For purposes 
of determining the appropriate DAS allocation, any overage of the 
target TAC that occurs in a given fishing year will be subtracted from 
the target TAC in the following fishing year and, conversely, any 
underage of the target TAC that occurs in a given fishing year will be 
added to the target TAC in the following fishing year.
    (3) In-season adjustments. The specifications 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) Development of annual specifications. In developing the 
management measures and recommendations for the annual specifications, 
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.
    (1) 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, as well as any measures 
necessary to assure that the specifications will not be exceeded.
    (2) The Council shall review these recommendations and any public 
comment received and shall submit its recommendation to the Regional 
Administrator after at least one Council meeting. If the Council 
submits a recommendation to the Regional Administrator after one 
Council meeting and the Regional Administrator concurs with the 
recommendation, the Regional Administrator shall publish the Council's 
recommendation in the Federal Register as a proposed rule unless there 
is adequate justification to waive prior notice and comment . The 
Council may instead choose to follow the framework adjustment process 
specified at Sec.  648.261 and request that the Regional Administrator 
publish the recommendation as a proposed or final rule. If the Regional 
Administrator concurs that the Council's recommendation meets the Red 
Crab

[[Page 63234]]

FMP objectives and is consistent with other applicable law, and 
determines that the recommended management measures should be published 
as a final rule, the action will be published as a final rule in the 
Federal Register. If the Regional Administrator concurs that the 
recommendation meets the FMP objectives and is consistent with other 
applicable law, and determines that a proposed rule is warranted, and, 
as a result, the effective date of a final rule falls after the start 
of the fishing year on March 1, fishing may continue under the 
specifications for the previous year. However, DAS used by a vessel on 
or after March 1 will be counted against any DAS allocation the vessel 
ultimately receives for that year.


Sec.  648.261  Framework adjustment process.

    (a) To implement 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.
    (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 (a)(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.
    (b) [Reserved]


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, or barter, 
greater than 500 lb (226.8 kg) of red crab, or its equivalent in weight 
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 in this paragraph (b). 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 notify permit holders by 
letter of the newly calculated DAS allocation.

[[Page 63235]]

    (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)(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, or barter, 
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 in weight as specified at paragraphs (a)(2)(i) and (ii) of 
this section, when fishing under a red crab DAS.
    (ii) A vessel owner or operator who shows credible proof of 
landings on at least one trip higher than 75,000 lb (34,019.4 kg) 
during the limited access qualification period shall qualify for a 
larger trip limit, rounded to the nearest 5,000 lb (2,268 kg) of the 
higher trip landed. Such proof must be in writing and 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 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, or barter, 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, possess, or land, fully-processed red crab.
    (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, or barter, up to 500 lb (226.8 
kg) of red crab, or its equivalent in weight as specified at paragraphs 
(a)(1)(i) and (ii) of this section, per fishing trip in or from the Red 
Crab Management Unit.
    (2) Full-processing prohibition. No person may fully process at 
sea, possess, or land, fully-processed red crab.
    (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 or harvest red crab from 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 owner or operator of a vessel that holds a valid 
limited access red crab permit 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. 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. No person may haul or remove lobster, red 
crab or fish from parlor traps/pots when fishing under a red crab DAS.
    (4) Maximum trap/pot size. The maximum allowable red crab trap/pot 
size of red crab traps/pots used or deployed on a red crab DAS is 18 
cubic feet (0.51 cubic meters) in volume. Red crab traps/pots may be 
rectangular, trapezoidal or conical only, unless other red crab 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.
    (6) Additional gear requirements. (i) In addition to complying with 
the gear regulations found at Sec.  229.32, vessels must include a weak 
link at the buoy that breaks away knotless at 3,780 lb (1,714.6 kg).
    (ii) Red crab traps/pots, fished in 200 fathoms (365.8 m) or less 
by a vessel issued a limited access lobster permit under Sec.  
697.4(a), must comply with the trap tagging requirements specified at 
Sec.  697.19.
    (b) [Reserved]
[FR Doc. 02-25459 Filed 10-9-02; 8:45 am]
BILLING CODE 3510-22-P