[Federal Register Volume 75, Number 33 (Friday, February 19, 2010)]
[Proposed Rules]
[Pages 7435-7437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3270]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100105009-0053-01]
RIN 0648-AY51


Fisheries of the Northeastern United States; Atlantic Deep-Sea 
Red Crab Fisheries; 2010 Atlantic Deep-Sea Red Crab Specifications

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS proposes 2010 specifications for the Atlantic deep-sea 
red crab fishery, including a target total allowable catch (TAC) and a 
fleet-wide days-at-sea (DAS) allocation. The implementing regulations 
for the Atlantic Deep-Sea Red Crab Fishery Management Plan (FMP) 
require NMFS to publish specifications for up to a period of 3 years 
and to provide an opportunity for public comment. The intent of this 
rulemaking is to specify the target TAC and other management measures 
in order to manage the red crab resource for fishing year (FY) 2010.

DATES:  Written comments must be received no later than 5 p.m. eastern 
standard time, on March 22, 2010.

ADDRESSES:  You may submit comments, identified by 0648-AY51, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov
     Fax: (978) 281-9135, Attn: Regional Administrator.
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on 2010 Red Crab 
Specifications.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the specifications document, including the Environmental 
Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and 
other supporting documents for the specifications, are available from 
Paul Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Newburyport, MA 01950. The specifications 
document is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:  Moira Kelly, Fishery Policy Analyst, 
(978) 281-9218.

SUPPLEMENTARY INFORMATION:

Background

    The FMP includes a specification process that requires the New 
England Fishery Management Council (Council) to recommend, on a 
triennial basis, a target TAC and a fleet DAS allocation that is 
consistent with that target TAC. In FY 2009, NMFS published an 
emergency rule to modify the target TAC and fleet DAS to be consistent 
with the recommendations of the Data Poor Stocks Working Group and 
Review Panel (Working Group). The Working Group recommended a reduction 
in the maximum sustainable yield (MSY) to 3.75-4.19 million lb (1,700-
1,900 mt).

[[Page 7436]]

In keeping with the FMP in setting the target TAC at 95% of MSY, NMFS 
implemented a target TAC of 3.56 million lb (1,615 mt), and reduced the 
fleet DAS allocation from 780 DAS to 581 DAS. The fleet DAS allocation 
is divided equally among the vessels active in the fishery, which can 
vary from year to year. For FY 2009, the allocation was initially 
divided among four vessels; however, NMFS allowed the fourth vessel to 
opt out of the fishery for the FY and reallocated the fleet DAS to the 
remaining three vessels. It is expected that only three vessels will be 
active in the red crab fishery in FY 2010. The Council has requested 
waiving the 6-month notification requirement for opting out of the red 
crab fishery for FY 2010.
    In September 2009, the Council's Scientific and Statistical 
Committee (SSC) accepted the Working Group's recommendation that MSY 
for red crab should be set within the range 3.75-4.19 million lb 
(1,700-1,900 mt), and recommended that the interim acceptable 
biological catch (ABC) be set commensurate with recent catch. The SSC 
determined recent catch to be the amount of red crab landed in FY 2007, 
which was 2.83 million lb (1,284 mt). The landings in FY 2007 were the 
lowest since the implementation of the FMP in 2002. During the 
Council's review of the SSC's recommendation at its September 2009 
meeting, there was some concern among Council members that a quorum of 
SSC members was not present during the red crab discussion. As a 
result, the Council approved a motion to ``send the red crab ABC back 
to the SSC for further analysis after new peer review information is 
available and that a quorum is present throughout SSC deliberations.'' 
Further, at its November 2009 meeting, the Council approved a follow-up 
motion to ``direct the PDT and the SSC to review the SSC recommended 
interim ABC for red crab to determine if it should be revised.'' To 
date, the SSC has not reviewed its interim ABC recommendation, nor as 
any new peer-reviewed information been made available.
    As described in the FMP, and specified at Sec.  648.260(b)(2), if 
the effective date of a final rule falls after the start of the FY on 
March 1, fishing may continue under the specifications for the previous 
year. Because the specifications currently in place under the emergency 
action will expire on February 28, 2010, the target TAC and DAS 
allocation will revert to those specified in the regulations (5.928 
million lb (2,688 mt) and 780 DAS, respectively) if the effective date 
of the final rule is after March 1. However, any DAS used by a vessel 
on or after March 1 will be counted against the DAS allocation the 
vessel ultimately receives for FY 2010.

Proposed Specifications

    Despite the recommendation from the SSC that the target TAC not 
exceed an ABC of 2.83 million lb (1,284 mt), the Council recommended a 
target TAC and fleet DAS allocation equal to the 2009 emergency rule, 
3.56 million lb (1,615 mt) and 581 DAS, respectively. The Council vote 
reflected the majority view of members that the ABC recommendation by 
the SSC is inappropriate, and that setting the ABC equal to a single 
year's landings, rather than a range of recent year's landings, is 
improper. The Council based its target TAC on the MSY advice from the 
Working Group, rather than that recommended by the SSC, because the 
Council considers the advice of the Working Group to provide an 
acceptably low risk of avoiding overfishing. The Council considers it 
their role to determine an acceptable level of risk of overfishing 
after receiving scientific information about what is the level of 
overfishing. To be consistent with the Council's SSC recommendation and 
relevant Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) provisions, NMFS is instead proposing to set the 
target TAC for FY 2010 equal to the SSC's recommended ABC (2.83 million 
lb; 1,284 mt) and a recalculated fleet DAS allocation of 464 DAS. This 
is the maximum allowable level of fishing effort that is consistent 
with the SSC recommendation; however, should the SSC revise its ABC 
recommendation prior to publication of final specifications for FY 
2010, NMFS would consider revising these specifications to the levels 
recommended by the Council, so long as the revised specifications 
remain consistent with the advice of the SSC.
    NMFS considers the best available science, as required under 
National Standard 2, is best represented by a recommendation from an 
SSC based on its review of the available scientific information. The 
Council's SSC accepted the Working Group's results and has recommended 
setting the overfishing limit (OFL) equal to the MSY range proposed by 
the Working Group. The SSC also concluded that ``[g]iven the data-poor 
nature of the stock assessment, the SSC derived an interim ABC on the 
basis of status quo catch . . . Landings in 2007 were 1,284 mt [2.83 
million lb], which is 68-76 percent of the approximate OFL. This 
magnitude of catch provides a 24- to 32-percent buffer between OFL and 
ABC, which is consistent with general guidance on buffers for data-
moderate to data-poor stocks.'' The SSC also noted ``that there should 
be a substantial buffer between OFL and ABC for data-poor stocks, an 
ABC based on the 2002-2007 average landings would contradict the 
[Working Group's advice]. Therefore, the SSC recommendation is for an 
interim ABC that is based on 2007 landings until a better estimate of 
OFL can be determined.''

Other Proposed Measures

    The Council has proposed waiving the 6-month notification 
requirement to opt out of the red crab fishery. Currently, vessel 
owners must inform NMFS of their intention to opt out of the fishery 6 
months prior to the start of the next fishing; i.e., by September 1. 
The Council feels that because the specifications decisions were not 
made until November, it would seem unfair to industry to require vessel 
owners make business decisions without knowing what the target TAC 
would be for the upcoming FY. NMFS is proposing to adopt this waiver 
for FY 2010.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has preliminarily determined that this 
proposed rule is consistent with the Atlantic Deep-Sea Red Crab FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this preamble and in the 
SUMMARY. A summary of the analysis follows. A copy of this analysis is 
available from the Council (see ADDRESSES).
    There are no large entities that participate in this fishery, as 
defined in section 601 of the RFA; therefore, there are no 
disproportionate effects on small versus large entities. Information on 
costs in the fishery are not readily available, and individual vessel 
profitability cannot be determined directly; therefore, changes in 
gross revenues were used as a proxy for profitability. In the absence 
of

[[Page 7437]]

quantitative data, qualitative analyses were conducted.
    The participants in the commercial sector are the owners of vessels 
issued limited access red crab vessel permits. There are five limited 
access red crab vessel permits, although only three vessels 
participated in the fishery in FY 2009.
    The IRFA in the Draft EA analyzed three alternatives (including the 
no action alternative) for establishing a target TAC and fleet-wide DAS 
allocation for FY 2010. Alternative 1 (status quo) would set the MSY, 
OY, target TAC, and DAS allocation equal to those adopted through 
emergency action on April 6, 2009. If the status quo alternative were 
adopted, MSY would be 3.75 million lb (1,700 mt), OY and the target TAC 
would be 3.56 million lb (1,615 mt), and the fleet DAS would be 582. If 
the DAS were allocated equally to the four vessels that have been 
active in recent years, the DAS per vessel would be 146. If only three 
vessels remain in the fishery, the resulting DAS allocation would be 
194 DAS for each active vessel. Alternative 2 would adopt the SSC's 
recommended interim ABC value of 2.83 million lb (1,284 mt) as the 
target TAC for FY 2010. The corresponding fleet DAS would be 464, based 
on the fleet average daily landings per charged DAS for the years 2006-
2008 (6,106 lb/DAS; 2,770 kg/DAS). The fleet DAS would be divided by 
the five current limited access permits, or less depending on the 
number of permits that declare out of the fishery. As noted above, one 
of the limited access permits has been declared out of the fishery each 
year since 2004 and a second vessel opted out for FY 2009 as well. If 
four vessels remain in the fishery, the resulting DAS allocation would 
be 116 DAS for each active vessel. If only three vessels remain in the 
fishery, the resulting DAS allocation would be 155 DAS for each active 
vessel. If no action were taken (Alternative 3), MSY would revert to 
the 6.24-million-lb (2,830-mt) value established by the FMP, and OY and 
the target TAC for FY 2010 would revert to 5.93 million lb (2,689 mt). 
The fleet-wide DAS allocation would be 780 DAS. If these DAS were 
distributed equally to the four limited access vessels that have been 
active in the fishery in recent years, the allocation per vessel would 
be 195 DAS. If a second vessel were to opt out for FY 2010, the 
allocation for each of the remaining three vessels would be 260 DAS.
    Under the Council's recommended specifications, approximately 
$730,000 of additional potential revenue could be available to the red 
crab fleet compared to NMFS's proposed specifications, and 
approximately $2.4 million less potential revenue than the No Action 
alternative. The current target TAC that would be maintained by the 
Council's alternative is greater than the average of the past 4 years' 
landings, 2 of which were higher, and 2 lower. For the past 2 years, 
the fleet has landed less than the target TAC that would result from 
the Council's recommended specifications. Whereas a limited market has 
been responsible for the shortfall in landings compared to the target 
TAC, red crab vessel owners have invested heavily in a new processing 
plant in New Bedford, MA, and have developed new marketing outlets with 
hopes to increase demand for their product.
    The loss in revenue to the red crab fleet from NMFS's proposed 
specifications compared to the no action alternative would potentially 
be approximately $3.1 million. Potential losses from alternative 
fisheries that may result from the need to readjust vessel time among 
fisheries are uncertain. The loss in revenue to the red crab fleet from 
this target TAC compared to the Council recommended target TAC would 
potentially be approximately $730,000.
    The target TAC prescribed by the FMP would allow for approximately 
$3.1 million more potential revenue for the red crab fleet in the 
short-term compared to NMFS's proposed target TAC, and approximately 
$2.4 million more revenue compared to the Council's recommended target. 
However, not implementing a target TAC consistent with the Working 
Group's advice could create potentially negative long-term economic 
effects due to overexploitation.

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 12, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    Authority:  16 U.S.C. 1801 et seq.
    2. In Sec.  648.4, paragraph (a)(13)(i)(B)(2)(ii) is revised to 
read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (13) * * *
    (i) * * *
    (B) * * *
    (2) * * *
    (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. For the 2010 fishing year only, the 6-month notification 
requirement is waived, and a vessel may be declared out of the fishery 
at any time prior to fishing under a limited access red crab DAS.
* * * * *
    3. In Sec.  648.260, paragraph (a)(1) is revised to read as 
follows:


Sec.  648.260  Specifications.

    (a) * * *
    (1) Target total allowable catch. The target TAC for fishing year 
2010 will be 2.830 million lb (1,283 mt), unless modified pursuant to 
this paragraph.
* * * * *
    4. In Sec.  648.262, paragraph (b)(2) is revised to read as 
follows:


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

* * * * *
    (b) * * *
    (2) For fishing year 2010. Each limited access permit holder shall 
be allocated 93 DAS unless one or more vessels declares out of the 
fishery consistent with Sec.  648.4(a)(13)(i)(B)(2) or the TAC is 
adjusted consistent with Sec.  648.260.
* * * * *
[FR Doc. 2010-3270 Filed 2-18-10; 8:45 am]
BILLING CODE 3510-22-S