[Federal Register Volume 69, Number 43 (Thursday, March 4, 2004)]
[Rules and Regulations]
[Pages 10174-10177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4876]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 031229327-4073-02; I.D. 121603B]
RIN 0648-AR58


Fisheries of the Northeastern United States; Atlantic Deep-Sea 
Red Crab Fishery

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

ACTION: Final 2004 specifications for the Atlantic deep-sea red crab 
fishery.

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SUMMARY: NMFS issues final specifications for the 2004 Atlantic deep-
sea red crab (red crab) fishery. The target total allowable catch (TAC) 
and fleet days at sea (DAS) for fishing year (FY) 2004 are 5.928 
million lb (2.69 million kg) and 780 fleet DAS, respectively. One 
qualified limited access vessel has opted out of the fishery for 
FY2004; therefore, the four remaining limited access vessels are each 
allocated 195 DAS. The intent of

[[Page 10175]]

the specifications is to conserve and manage the red crab resource and 
provide for a sustainable fishery. In addition, this action corrects a 
citation in the regulations implementing the Red Crab Fishery 
Management Plan (FMP).

DATES: The final 2004 specifications are effective from April 5, 2004 
through February 28, 2005. The amendment to Sec.  648.262 is effective 
April 5, 2004.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, and the Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) for the 2004 Red Crab Fishing Year, 
are available from Paul J. Howard, Executive Director, New England 
Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 
01950. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov/ro/doc/nero.html. The Final Regulatory Flexibility 
Analysis (FRFA) consists of the IRFA, public comments and responses, 
and the analysis of impacts and alternatives contained in these final 
specifications. Copies of the small entity compliance guide are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298.

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

SUPPLEMENTARY INFORMATION: This final rule implements the final 
specifications for the FY2004 red crab fishery. Regulations 
implementing the FMP require the New England Fishery Management Council 
(Council) to review annually the red crab specifications. The Council's 
Red Crab Plan Development Team (PDT) meets at least annually to review 
the status of the stock and the fishery. Based on this review, the PDT 
reports 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 optimum yield (OY), the setting of any target TAC, 
allocation of DAS, and/or adjustments to trip/possession limits. In 
developing the management measures and recommendations for the annual 
specifications, the PDT reviews 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. Recommended 
specifications are presented to the Council for adoption and 
recommendation to NMFS.

Final 2004 Specifications

    Based on the available biological information and the Council's 
subsequent recommendation, the maximum sustainable yield (MSY) and OY 
for FY2004 remain the same as during FY2003. The FMP defines the target 
TAC as equal to OY, and OY is set at 95 percent of MSY, unless adjusted 
through the annual specifications process. The MSY for FY2004 is 
estimated to be 6.24 million lb (2.83 million kg); therefore, absent 
any new information on which to base a change in OY, OY and the target 
TAC remain at 5.928 million lb (2.69 million kg).
    Five vessels qualified for a limited access permit in the red crab 
fishery for the 2002 and 2003 fishing years. The fleet was allocated 
780 DAS for FY2003, which translated into 156 DAS for each of the five 
limited access vessels.
    The Council considered six alternative ways to determine the fleet 
DAS allocation most appropriate to achieve the objectives of the FMP. 
Each alternative would have resulted in a different fleet DAS 
allocation. A complete description of each alternative is found in 
section 4.0 of the Council's Red Crab Specifications document and is 
not repeated here. The total fleet DAS for FY2004 would have varied 
from 745 under Alternative 1, to 874 under Alternative 4. An 
explanation of the reasons the Council selected the preferred 
alternative is found in the Classification section of the proposed 
specifications (69 FR 1561; January 9, 2004) and is not repeated here.
    Based on the Council's analysis in its annual Red Crab 
Specifications document, NMFS concurs with the Council's recommendation 
that the FY2003 specifications continue to meet the objectives of the 
FMP and should be maintained for FY2004; therefore, the following 
specifications are implemented for FY2004:

Target TAC and DAS

Target TAC: 5.928 million lb (2.69 million kg)
Fleet DAS: 780
Vessel DAS: 195 (since one of the five vessels with a limited access 
permit has opted out of the fishery for FY2004, the remaining four 
vessels will thus receive 195 DAS each)
    In accordance with Sec.  648.260(b)(2), because the effective date 
of this rule falls after the start of the fishing year on March 1, 
2004, fishing may commence under the levels set in the previous year's 
specifications (156 DAS per vessel), until these specifications become 
effective. Once these specifications become effective, qualified 
limited access red crab vessels will have access to their allocation of 
DAS for FY2004 (195 DAS per vessel). However, all DAS used by a vessel 
on or after March 1, 2004, will be counted against any DAS allocation 
the vessel ultimately receives for the 2004 fishing year.

Comments and Responses

    One comment on the proposed specifications was received from the 
New England Red Crab Harvesters' Association (NERCHA), submitted on 
behalf of its membership, which includes all of the red crab limited 
access permit holders. A second comment was received from an interested 
party in which some of the issues raised did not specifically address 
the proposed specifications.
    Comment 1: NERCHA supports the specifications as published in the 
Federal Register on January 9, 2004. NERCHA states that it will attempt 
to harvest the 2004 target TAC for red crab without exceeding the OY.
    Response: NMFS acknowledges NERCHA's comment and is implementing 
the specifications as proposed.
    Comment 2: One commentor expressed general support for 
environmental reforms, marine sanctuaries, and improved enforcement of 
fishery regulations. The commentor suggested that the red crab TAC be 
reduced to 2.5 million lb (1.13 million kg) and by 10 percent in each 
subsequent year thereafter. The commentor also suggested that the fleet 
DAS be reduced from 780 to 340 and by 10 percent each subsequent year 
thereafter, and further stated that incidental taking should not be 
allowed. The commentor questioned the accuracy of the population 
estimates, which, she stated, were 2 years old and did not include the 
2003 catch data.

[[Page 10176]]

    Response: These specifications are designed to provide for the fair 
and efficient use of the Federal commercial red crab quota. While NMFS 
acknowledges the importance of the general issues raised by the 
commentor, this final rule is not the proper mechanism to address those 
concerns.
    The commentor gave no specific rationale for her suggestion that 
the TAC and fleet DAS be reduced from what was proposed. The reasons 
presented by the Council and NMFS for implementing these specifications 
are discussed in the preambles to both the proposed and final 
specifications, and are sufficiently analyzed within the Red Crab 
Specifications document. These specifications were developed based on 
the best data available at the time, in accordance with the process 
established by the Magnuson-Stevens Fishery Conservation and Management 
Act. There is no known scientific basis for reducing the target TAC and 
fleet DAS allocation to the levels suggested by the commentor.

Changes From the Proposed Rule

    In Sec.  648.262, paragraphs (b)(2) and (b)(6) erroneously refer to 
Sec.  648.260(c) when they should refer to Sec.  648.260 because there 
is no Sec.  648.260(c). Referring to Sec.  648.260(c) was, therefore, 
an inadvertent error made in earlier rulemaking and is corrected.

Classification

    This action is exempt from review under Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA), prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed 
specifications, and the analyses completed to support the action. A 
copy of the IRFA is available from the Council (see ADDRESSES). The 
preamble to the proposed specifications included a detailed summary of 
the analyses contained in the IRFA and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the legal basis and reasons for the action, and 
its objectives, can be found in the preambles of the proposed 
specifications (69 FR 1561; January 9, 2004) and these final 
specifications, and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    Two comments were received on the proposed specifications; neither 
referred specifically to the IRFA or to any economic impacts that the 
rule may have. No changes to the proposed specifications were required 
to be made as a result of public comments. For a summary of the 
comments received, refer to ``Comments and Responses.''

Description and Estimate of Number of Small Entities to which Final 
Specifications Will Apply

    All of the affected businesses (fishing vessels) are considered 
small entities under the standards described in NMFS guidelines because 
they have gross receipts that do not exceed $3.5 million annually. All 
fishing vessels with Federal limited access red crab permits are 
considered affected businesses; there are currently five vessels so 
identified, although one has declared out of the fishery for FY2004.

Description of Projected Reporting, Recordkeeping, and other Compliance 
Requirements

    No additional collection-of-information, reporting, or 
recordkeeping requirements are included in these final specifications. 
These specifications do not duplicate, overlap, or conflict with any 
other Federal rules.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    The economic impacts of this action could have varied based on 
which method was selected to calculate annual fleet DAS. If the 
individual DAS had been less than what was allocated in FY2003, 
resulting in fewer landings, then it is probable that the economic 
impacts would be negative for the limited access fleet compared to 
FY2003. On the other hand, if an alternative were selected that 
allocated a greater number of individual DAS to each vessel than in 
FY2003 (as is the case here), thereby increasing landings, economic 
impacts would likely be positive compared to FY2003. It is important to 
note that one vessel with a limited access permit has opted out of this 
fishery for FY2004, resulting in that vessel's DAS being allocated 
equally among the remaining limited access vessels. Thus, individual 
DAS allocations for active limited access vessels during FY2004 are 
higher than the FY2003 allocations. Sections 8.8 and 8.9 of the RIR and 
IRFA section of the Council's Red Crab Specifications document describe 
the economic impacts that would be expected from each of the 
alternatives.

Preferred Alternative

    The preferred alternative consists of no changes in the target TAC 
available to the fishery or in the total number of fleet DAS from 
FY2003, but because one vessel opted out of the FY2004 fishery, the 
allocation of DAS per vessel is increased from 156 to 195.
    Under Alternatives 1 through 4, the allocation of DAS per vessel 
for each of the four limited access vessels in the FY2004 fishery would 
have varied from 186 to 218. Alternative 1 would have resulted in an 
allocation of 186 DAS to each of the four participating vessels, based 
on a fleet allocation of 745 DAS. Alternative 2 would have resulted in 
an allocation of 215 DAS to each participating vessel, based on an 
allocation of 861 DAS to the fleet. Alternative 3 would have resulted 
in an allocation of 210 DAS per participating vessel, based on a fleet 
allocation of 840 DAS. Alternative 4 would have resulted in an 
allocation of 218 DAS to each of the participating vessels, based on an 
allocation of 874 DAS to the fleet. The PDT also evaluated an 
additional alternative, referred to as alternative 4a. This alternative 
would have provided for an annual fleet allocation of 794 DAS. This 
would translate into 198 DAS per vessel for each of the four vessels in 
the fishery in FY2004. A complete description of each alternative is 
found in section 4.0 of the Council's Red Crab Specifications document 
and is not repeated here.
    The No Action/Status Quo Alternative was selected because the 
current management measures have been in place for only a short time, 
and there is no basis to revise the allocation at this time. 
Consequently, this DAS allocation, as was determined for the FY2003 
specifications, is justified because it is the alternative most likely 
to allow vessels to harvest the 2004 TAC without exceeding it, based on 
preliminary data available for the same specifications in place for 
FY2003.

Summary of Economic Impacts

    Uncertainty about the status of the red crab stock, as well as the 
limited time-series available in the data, makes it difficult to 
accurately predict the economic outcomes of the various alternatives.
    The level of landings and revenue expected is considered directly 
related to the allocated number of DAS, and Alternative 4 would have 
provided the most fleet DAS. The ranking of alternatives (using FY2002 
and FY2003 combined data) based solely on fleet DAS, from highest to 
lowest, would be Alternative 4, Alternative 2, Alternative 3, 
Alternative 4a, the preferred alternative, and finally, Alternative 1. 
As expected, the highest number of fleet DAS (Alternative 4) would have 
had the

[[Page 10177]]

greatest potential to ensure that vessels harvest at least the 
available TAC, but carried with it the highest risk of exceeding the 
TAC.
    According to section 8.8 of the Red Crab Specifications document, 
Alternative 1 would be expected to generate the lowest level of 
landings and revenue because it allocates 35 fewer fleet DAS than the 
preferred alternative. On the other hand, Alternatives 2, 3, and 4 
would allocate more fleet DAS than the preferred alternative; 81, 60, 
and 94 more fleet DAS, respectively. The additional allocated DAS would 
have enabled each vessel to take extra trips, and the economic benefits 
would have been expected to increase compared to FY2003 with more DAS 
available. But each of these other alternatives would increase the risk 
of exceeding the TAC. The opting out of one red crab vessel for FY2004, 
however, means that the remaining four vessels are allocated 195 DAS 
each, an increase over the FY2003 allocation of 156 DAS, under the 
preferred alternative. This increase in individual DAS significantly 
increases the potential landings and economic benefits for these 
vessels, compared to FY2003. In balancing the FMP objectives of 
providing the fleet with the greatest number of landings without 
exceeding the TAC, the preferred alternative is considered to represent 
the optimal DAS allocation by maximizing the potential economic 
benefits to affected vessels while minimizing the risk to the red crab 
resource of exceeding the TAC.
    Section 212 of the Small Business Regulatory Enforcement and 
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 Atlantic deep-sea red crab limited access 
vessel or dealer permits. In addition, copies of these final 
specifications and guide (i.e., permit holder letter) are available 
from NMFS (see ADDRESSES) and at the following web site: http://www.nero.noaa.gov/.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: February 27, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fissheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.262 paragraphs (b)(2) and (b)(6) are revised to read as 
follows:


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

* * * * *
    (b) * * *
    (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.
* * * * *
    (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.
* * * * *
[FR Doc. 04-4876 Filed 3-1-04; 3:21 pm]
BILLING CODE 3510-22-S