[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Rules and Regulations]
[Pages 27219-27221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11613]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100105009-0167-02]
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:  Final rule.

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SUMMARY:  NMFS issues final specifications for the 2010 Atlantic deep-
sea red crab fishery, including a target total allowable catch (TAC) 
and a fleet-wide days-at-sea (DAS) allocation. 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:  This rule is effective on June 14, 2010.

ADDRESSES:  Copies of the specifications document, including the 
Environmental Assessment (EA) and the Initial Regulatory Flexibility 
Analysis (IRFA) 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.nefmc.org. NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA), which is contained in the Classification section of 
this rule. The FRFA consists of the IRFA, public comments and responses 
contained in this final rule, and a summary of impacts and alternatives 
contained in this final rule. The small entity compliance guide is 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Regional Office, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930-2298, and on the Northeast Regional 
Office's website at http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    The Red Crab 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 a temporary 
emergency rule to modify the 2009 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). In keeping with the FMP in setting the target TAC 
at 95 percent 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 582 
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 one of the four vessels to opt out of the fishery for the FY 
and reallocated the fleet DAS to the remaining three vessels. It is 
expected that four 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. 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 582 DAS, respectively. The Council based its target TAC 
on the MSY advice from the Working Group, rather than that recommended 
by the SSC, because the Council considered the advice of the Working 
Group to provide an acceptably low risk of avoiding overfishing. The 
Council further requested the SSC to reconsider its recommendation for 
red crab.
    In response to this request from the Council to reconsider its 
recommendation, the SSC met on March 16-17, 2010, and determined that 
the interim ABC for red crab should be revised. The SSC has determined 
that

[[Page 27220]]

the model results from the Working Group are an underestimate of MSY, 
but could not determine by how much. The SSC now recommends that the 
ABC for red crab be set equal to long-term average landings (3.91 
million lb; 1,775 mt). The SSC considers this level of landings to be 
sustainable and comfortably below the actual MSY level.

Final Specifications

    In the proposed rule, NMFS proposed setting the target TAC equal to 
the original SSC recommendation because this level would be consistent 
with the best available science, but noted that if the SSC revised its 
ABC recommendation prior to the publication of the final specifications 
for FY 2010, NMFS would consider revising the specifications to the 
levels recommended by the Council. However, the red crab regulations at 
Sec.  648.260 provided no explicit authority for NMFS to have proposed 
specifications that differed from the Council's recommendation. 
Accordingly, based on this regulatory constraint, because the 
specifications recommended by the Council exceeded the ABC recommended 
by the Council's SSC, had the ABC recommendation of the SSC not 
changed, NMFS would have had no alternative but to disapprove the 
Council's proposed specifications in the final rule. But, based on the 
new ABC recommendation by the Council's SSC, NMFS is able to approve 
the FY 2010 specifications, which are now consistent with the best 
scientific information available, at the level recommended by the 
Council.
    Therefore, this final rule adopts the Council's recommended target 
TAC of 3.56 million lb (1,615 mt) and DAS allocation of 582 DAS, 
instead of the proposed target TAC of 2.83 million lb (1,284 mt) and 
464 fleet DAS allocation. Although this is consistent with the 
Council's recommendation, it remains less than the most recent ABC 
recommendation by the SSC because, as explained above, the red crab 
specification regulations do not grant NMFS the authority to implement 
a target TAC different than that recommended by the Council. As an 
alternative, the red crab regulations at Sec.  648.260(a)(3) authorize 
NMFS to make an in-season adjustment of the specifications, after 
consultation with the Council and an opportunity for additional public 
comment.

Other Measures

    NMFS is also adopting the Council's request to waive the 6-month 
notification requirement for vessels to opt out of the red crab fishery 
for FY 2010. 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. NMFS is adopting the Council's 
request because the specification decisions were not made until after 
September.
    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 that were put in place under the 
emergency action expired on February 28, 2010, the target TAC and DAS 
allocation reverted to those previously specified in the regulations 
(5.928 million lb (2,688 mt) and 780 DAS, respectively). However, any 
DAS used by a vessel on or after March 1 will be counted against the 
DAS allocation the vessel receives for FY 2010.

Comment and Response

    One comment was received from the Atlantic Red Crab Company, 
requesting NMFS to adopt the SSC's revised ABC recommendation of 3.91 
million lb (1,775 mt) as the target TAC, which would have a positive 
economic impact on the red crab industry. As stated above, NMFS does 
not have the regulatory authority to implement a target TAC that is 
greater than the Council's recommended level; however, the regulations 
do provide for an in-season adjustment of the specifications, after 
consultation with the Council. Therefore, at this time, NMFS is 
implementing the specifications recommended by the Council. Following 
an opportunity to consult with the Council, NMFS may consider a mid-
year adjustment to the specifications.
    One comment was also received from the Council requesting NMFS to 
adopt its recommended specifications of 3.56 million lb (1,615 mt) 
based on the SSC's revised recommendation for ABC, and noting that the 
Council intends to consider recommending that the target TAC be 
adjusted according to the procedures laid out in the FMP at its 
earliest opportunity. This final rule adopts the Council's recommended 
target TAC of 3.56 million lb. As stated above, NMFS may consider a 
mid-year adjustment to the specifications.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this rule is 
consistent with the Atlantic Deep-Sea Red Crab FMP, other provisions of 
the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, and NMFS's responses to those comments, and a summary of the 
analyses completed to support the action. A copy of the EA/Regulatory 
Impact Review/IRFA 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 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for these specifications are 
explained in the preambles to the proposed rule and this final rule and 
are not repeated here.

Summary of Significant Issues Raised in Public Comments

    Two comments were submitted on the proposed rule; while they were 
not specific to the IRFA, one did comment on the economic effects of 
the rule. NMFS has responded to the comments in the Comments and 
Responses section of the preamble to this final rule. No changes were 
made to the final rule as a result of the comments received.

Description and Estimated of Number of Small Entities to Which the Rule 
will Apply

    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 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.

[[Page 27221]]

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

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

    Specification of the target TAC and corresponding fleet DAS 
allocation is constrained by the conservation objectives of the FMP, 
under the authority of the Magnuson-Stevens Act. The target TAC 
contained in this final rule is equal to the FY 2009 target TAC, and 
roughly 20 percent higher than actual FY 2009 commercial red crab 
landings. 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. Further, the Council considered three 
alternatives, and this rule implements the alternative that has the 
highest target TAC and DAS allocation that is consistent with both the 
FMP and the best available science.

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 Federal permits issued for the Atlantic 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 website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

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

    Dated: May 10, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons stated 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.  648.4, 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 during 
the 2010 fishing year.
* * * * *

0
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 each fishing 
year will be 3.56 million lb (1,615 mt), unless modified pursuant to 
this paragraph.
* * * * *

0
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 years 2010 and thereafter. Each limited access 
permit holder shall be allocated 116 DAS unless one or more vessels 
declares out of the fishery consistent with Sec.  
648.4(a)(13)(i)(B)(2)(ii) or the TAC is adjusted consistent with Sec.  
648.260.
* * * * *
[FR Doc. 2010-11613 Filed 5-13-10; 8:45 am]
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