Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab Fishery; Amendment 3, 39369-39374 [2011-16895]
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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules
qualify for an abatement permit. A
General or Apprentice Falconer may
conduct abatement activities under the
permit holder’s Federal abatement
permit if the permit holder designates
them as a subpermittee. Only raptors
that belong to the abatement permit
holder may be used under his or her
abatement permit.
Raptors used under a Federal
abatement permit must be captive-bred
and banded with a Service-issued
seamless band. Any MBTA-protected
raptor species (including legally held
threatened or endangered species) may
be used for abatement, except for golden
eagles and bald eagles. There is
currently no limit to the number of
raptors an abatement permit holder may
hold under a Federal abatement permit
provided that they are properly cared
for and each raptor is used for
abatement activities. Facilities and
equipment must meet standards
described in 50 CFR 21.29.
A Federal abatement permit holder
may use captive-bred raptors held under
his or her migratory bird master falconry
permit for abatement activities without
transferring them to his or her
abatement permit, provided the
applicable State falconry permitting
authority allows this. The falconry bird
used must be a species authorized for
use per the conditions of the Federal
abatement permit. Only the permit
holder may use his or her falconry birds
for abatement activities. Raptors held
under a Federal abatement permit may
not be used for falconry unless they are
transferred to a falconry permit.
Abatement permit holders must
submit a completed 3–186A form
(Migratory Bird Acquisition and
Disposition Report) to the issuing
Migratory Bird Permit Office for each
raptor he or she acquires or disposes of
under the permit, but they have no other
reporting requirements. Among other
things, we solicit suggestions as to
whether reporting will have value, and
what level of reporting should be
required.
A Federal abatement permit, by itself,
does not authorize the general killing,
injuring, or take of migratory birds or
other wildlife. Any take of protected
migratory birds by an abatement permit
holder must be authorized by a Federal
depredation order or depredation
permit. Any harassment, disturbance, or
take of bald eagles, golden eagles, or
endangered or threatened species by an
abatement permit holder must be
authorized by the applicable Federal
permit. Abatement activities must also
be in accordance with any other
applicable Federal, State, or Tribal law.
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However, no additional Federal
permit is required to take species that
are not protected under the MBTA or
any other applicable Federal law. In
addition, no Federal permit is required
to conduct abatement activities directed
at protected migratory birds that do not
amount to a take. We do not consider
flushing, scaring, or hazing to meet the
definition of take under the MBTA.
Possession and use for abatement of
exotic raptor species that are not on the
list of MBTA-protected species at 50
CFR 10.13, such as Barbary falcon,
Lanner falcon, and Saker falcon, is not
regulated under the MBTA and is
outside the scope of this notice. Hybrid
raptors of MBTA-protected species
would still be subject to this proposed
permit regulation. Though an abatement
permit would not be required for use of
such species in abatement activities, any
resulting take of protected migratory
birds or other protected wildlife must
still be authorized under the applicable
Federal, State, or Tribal law or
regulation.
A Federal abatement permit will
allow the permittee to conduct
abatement at the locations identified
and under the conditions listed on his
or her abatement permit. A State
abatement permit also may be required
of an abatement practitioner.
We solicit comments and suggestions
on any aspect of the use of trained
MBTA-protected raptors for abatement
activities and potential regulations to
govern Federal permitting. We
particularly solicit comments on the
topics listed below. Explaining the
reasons and rationale for your
comments where appropriate will help
as we consider them in the preparation
of a proposed rule.
(1) Qualifications and experience
necessary to qualify for a Federal
abatement permit.
(2) Limits on the species that should
be authorized for use in abatement
activities.
(3) Limits on the numbers of raptors
that should be authorized for use in
abatement activities.
(4) Qualifications and experience of
subpermittees (both those authorized to
fly the permit holder’s raptors and those
allowed to care for birds).
(5) Caging requirements for birds,
while traveling, being transported and
held in ‘‘temporary’’ caging for extended
periods of time, i.e., multiple birds held
in a trailer while conducting seasonal
abatement activities at multiple
locations.
(6) The use of falconry birds held by
subpermittees for abatement.
(7) Any other considerations relating
to subpermittees conducting abatement
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39369
activities under a permit holder’s
permit, including their business
relationship to the permit holder. For
example, should falconers located
elsewhere in the United States be
allowed to conduct abatement activities
in their own locale as subpermittees
under a permit holder’s abatement
permit? Why or why not?
(8) Comments on what has worked
well under existing permits and what
has not worked well.
(9) Report information that should be
required from a permit holder, if any.
(10) Other conditions that should
apply to these permits.
(11) Examples of situations where
raptors are used for abatement and
information or documentation of
success or lack of success in
accomplishing abatement objectives.
Authority: The authorities for this notice
are the Migratory Bird Treaty Act, 40 Stat.
755 (16 U.S.C. 703–712); Pub. L. 95–616, 92
Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106–
108, 113 Stat. 1491, and Note Following 16
U.S.C. 703.
Dated: June 27, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2011–16880 Filed 7–5–11; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 100903433–1349–01]
RIN 0648–BA22
Fisheries of the Northeastern United
States; Atlantic Deep-Sea Red Crab
Fishery; Amendment 3
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes regulations to
implement Amendment 3 to the
Atlantic Deep-Sea Red Crab Fishery
Management Plan (Red Crab FMP). The
New England Fishery Management
Council (Council) developed
Amendment 3 to bring the Red Crab
FMP into compliance with the annual
catch limit (ACL) and accountability
measure (AM) requirements of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act). Although
SUMMARY:
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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules
recommended by the Council as part of
Amendment 3, this proposed rule
announces NMFS’ intention to
disapprove a proposed measure to
modify the existing trap restrictions and
a proposed measure to remove the
prohibition on landing more than one
standard tote of female red crabs.
Written comments must be
received no later than 5 p.m. eastern
standard time, on August 5, 2011.
DATES:
An environmental
assessment (EA) was prepared for
Amendment 3 that describes the
proposed action and other considered
alternatives, and provides an analysis of
the impacts of the proposed measures
and alternatives. Copies of Amendment
3, including the EA and the Initial
Regulatory Flexibility Analysis (IRFA),
are available on request from Paul J.
Howard, Executive Director, New
England Fishery Management Council,
50 Water Street, Newburyport, MA
01950. These documents are also
available online at https://
www.nefmc.org.
You may submit comments, identified
by RIN 0648–BA22, by any one of the
following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal: https://
www.regulations.gov.
• Fax: (978) 281–9135, Attn: Moira
Kelly.
• 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
Red Crab Amendment 3 Proposed
Rule.’’
Instructions: All comments received
are part of the public record and will
generally be posted to https://
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.
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ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Moira Kelly, Fishery Policy Analyst,
(978) 281–9218.
SUPPLEMENTARY INFORMATION:
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Background
The Council developed Amendment 3
with the primary goal of bringing the
Red Crab FMP into compliance with the
requirements of the reauthorized
Magnuson-Stevens Act that FMPs
include ACLs and AMs. The Red Crab
FMP was implemented in October 2002.
Since implementation, the red crab
fishery has been managed under a target
TAC and DAS system that allocated
DAS equally across the fleet of limited
access permitted vessels. The fleet DAS
allocation was calculated by
determining how many DAS would be
required to reach the target TAC based
on recent average landings-per-DAS by
the active vessels. The FY 2010 target
TAC was 3.91 million lb and fleet DAS
allocation was 665 DAS. The FY 2010
specifications will remain in place until
replaced by the proposed specifications
in Amendment 3, if approved.
Proposed Management Measures
1. Biological and Management
Reference Points
The biological and management
reference points currently in the Red
Crab FMP are used to determine if
overfishing is occurring or if the stock
is overfished. However, these reference
points for red crab are currently not
sufficient to comply with the
Magnuson-Stevens Act and the National
Standard 1 (NS1) guidelines. As a result,
the Council intended to establish new
estimates for maximum sustainable
yield (MSY), optimum yield (OY),
overfishing limit (OFL), and acceptable
biological catch (ABC) for red crab.
However, there is still insufficient
information on the species to establish
the MSY, OY, or OFL, and ABC is
defined in terms of landings instead of
total catch (i.e., landings plus dead
discards).
MSY is defined under the MagnusonStevens Act as ‘‘the largest long-term
average catch or yield that can be taken
from a stock or stock complex under
prevailing ecological, environmental
conditions and fishery technological
characteristics (e.g., gear selectivity),
and the distribution of catch among
fleets.’’ However, the Council’s
Scientific and Statistical Committee
(SSC) determined that the model results
from the December 2008 Data Poor
Stocks Working Group (DPSWG) are an
underestimate of MSY for red crab, but
could not determine by how much, and
so the SSC did not recommend an
estimate of MSY. As a result, the MSY
estimated in the FMP was rejected, but
a new estimate could not be determined.
Because the SSC could not determine
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MSY, a new value for OY could not be
developed.
The OFL is an estimate of the catch
level above which overfishing is
occurring, but based on the available
information, the SSC determined that an
OFL could not be estimated for the red
crab fishery at this time.
ABC is defined under the MagnusonStevens Act as ‘‘a level of stock or stock
complex’s annual catch that accounts
for the scientific uncertainty in the
estimate of OFL and any other scientific
uncertainty, and should be specified
based on the ABC control rule.’’ The
NS1 guidelines further state that ‘‘ABC
may not exceed OFL,’’ and that ‘‘the
determination of ABC should be based,
when possible, on the probability that
an actual catch equal to a stock’s ABC
would result in overfishing.’’ These
guidelines also require that the
Council’s ABC control rule be based on
scientific advice provided by its SSC
and that the SSC recommend the ABC
to the Council.
At its March 16, 2010, meeting, the
SSC determined that the available
information for red crab provided an
insufficient basis on which to
recommend an ABC control rule, and
that ‘‘an interim ABC based on longterm average landings is safely below an
overfishing threshold and adequately
accounts for scientific uncertainty.’’ The
SSC reviewed information on historical
dead discards of red crab in the directed
trap fishery and in bycatch fisheries at
its June 22, 2010, meeting in an effort to
recommend an ABC that includes both
landings and dead discards. However,
the SSC determined that there was
insufficient information to specify dead
discards, but that the long-term average
landings, and the presumed discarding
practices associated with those
landings, were sustainable, and
maintained its recommendation of
specifying the interim red crab ABC in
terms of landings only. Based on this
approach, the long-term average
landings for 1974–2008 result in an ABC
of 3.91 million lb (1,775 mt),
represented in terms of commercial
landings.
2. ACL
Under section 303(a)(15) of the
Magnuson-Stevens Act, any FMP must
establish a mechanism for specifying
ACLs at a level that prevents
overfishing. The NS1 guidelines further
state that the ACL for a given stock or
stock complex cannot exceed the ABC,
that it serves as the basis for invoking
AMs, and that ACLs in coordination
with AMs must prevent overfishing.
Based on the requirements of the
Magnuson-Stevens Act and the NS1
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guidelines with respect to ACLs and
AMs, Amendment 3 proposes that the
ACL for red crab be set equal to the
ABC, because scientific uncertainty has
been accounted for in establishing the
ABC. This rule also proposes to set the
ACL equal to the total allowable
landings (TAL) for FYs 2011–2013,
because the management uncertainty in
the red crab fishery is minimal and the
SSC determined that there was
insufficient information to specify dead
discards.
3. Accountability Measures
The NS1 guidelines describe AMs as
management controls aimed at
preventing the ACL from being
exceeded, and to correct or mitigate
overages of the ACL. The Council
proposes both proactive and reactive
AMs for the red crab fishery in
Amendment 3. The proactive AM would
grant the Regional Administrator the
authority to close the red crab fishery
when the TAL is projected to be
harvested. The reactive AM would be a
pound-for-pound payback of any
overage, should the TAL be exceeded. In
any year in which the ACL and TAL are
not equal, if any overage of the ACL is
not accounted for through the AM that
applies to an overage of the TAL (e.g.,
higher than expected discards, or an
unexpected increase in incidental
landings by vessels with open access
red crab permits), then the
unaccounted-for amount by which the
ACL was exceeded will be deducted
from the subsequent single fishing
year’s ACL.
4. FYs 2011–2013 Specifications
The Council proposes the following
specifications for red crab for FYs 2011–
2013:
Million
lb
mt
undetermined
undetermined
undetermined
ABC .............
ACL .............
TAL ..............
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MSY ............
OFL .............
OY ...............
1,775 ........................
1,775 ........................
1,775 ........................
3.91
3.91
3.91
5. TAL; Eliminate DAS
This measure would replace the DAS
and target TAC management scheme
with a TAL. The Council intends this
measure to work in conjunction with
the in-season closure authority AM,
which would grant the Regional
Administrator the authority to close the
fishery when the TAL is project to be
harvested. This measure is being
proposed to simplify the management
measures for red crab, provide increased
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flexibility to the red crab fleet, and
ensure more accurate accounting of the
catch limits.
6. Eliminate Trip Limits
Red crab vessels qualified for a trip
limit during the initial limited access
qualification process. The FMP
originally specified a trip limit of 75,000
lb (34,019 kg), unless a vessel owner
could demonstrate he or she landed
more than 75,000 lb (34,019 kg) on a trip
during the qualification period, in
which case the owner was granted a trip
limit equal to that higher level, rounded
to the nearest 5,000 lb (2,268 kg). Only
one vessel qualified under that
provision, and it has operated with a
trip limit of 125,000 lb (56,699 kg) since
2002. The proposed rule would
eliminate these trip limits to simplify
the management measures for red crab
and provide increased flexibility to the
red crab fleet.
7. Modify Trap Limit Regulations
The current trap limit regulations
state that red crab may not be harvested
from gear other than a marked red crab
trap; no more than 600 traps may be
used when fishing for red crab; and
lobster, red crab, or fish may not be
harvested from a parlor trap while on a
red crab DAS. The proposed measure
would modify the regulation to prohibit
more than 600 traps being deployed in
water deeper than 400 m; prohibit a
limited access red crab vessel from
harvesting red crab in water shallower
than 400 m; and prohibit parlor traps
from being deployed at water shallower
than 400 m. This measure was proposed
by the Council to allow red crab vessels
that also fish for lobster to do so on the
same trip. However, the proposed
modifications may be unenforceable.
They would require an enforcement
agent to witness the deployment of traps
beyond the recommended depth range
and/or witness the at-sea retrieval of the
traps to determine compliance with the
regulations. As this is not practical,
NMFS proposes to disapprove this
measure because of the inability to
effectively enforce these regulations.
8. Remove Prohibition on Landing
Female Red Crab
The Council has also proposed a
measure that would remove the current
prohibition on landing more than one
standard tote (100 lb (45.4 kg)) of female
red crab, conditional on a scientific
recommendation from the SSC. The
Council proposed this measure to allow
the future expansion of the fishery to
include female red crab. However,
NMFS considers this proposal to be
administratively unnecessary and
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39371
inconsistent with the best available
science.
Administratively, modifying the
regulations to allow landing female red
crabs could be done through a
framework adjustment, as specified in
the FMP, and the analytical
requirements to implement such a
change to the male-only fishery would
be the same with or without the
approval of this measure. Amendment 3
did not recommend any specific
management measures or monitoring
protocol that would potentially need to
be implemented in conjunction with
implementing this change.
Scientifically, the SSC determined that
at this time there is insufficient
scientific information available to make
any determination as to the potential
impact on red crab of landing more than
an incidental amount of female red crab.
Further, analysis of the impacts of
landing female red crabs was not
included in the FMP and none is
included in Amendment 3. If sufficient
scientific information becomes
available, and the Council determines it
is interested in removing this
prohibition once specific management
measures to accommodate this change
are developed, additional Council
action and analysis would be required,
regardless of whether this measure is
implemented in Amendment 3.
Therefore, NMFS proposes to
disapprove this measure. NMFS seeks
comments on all of the proposed
measures in Amendment 3, as well as
on its intention to disapprove two of the
Council’s proposed measures.
As required under section 303(c) of
the Magnuson-Stevens Act, the Council
reviewed the draft regulations and
deemed them necessary and appropriate
for implementation of Amendment 3.
Technical changes to the regulations
deemed necessary by the Secretary for
clarity may be made, as provided under
section 304(b) of the Magnuson-Stevens
Act.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this proposed rule is consistent
with the Red Crab FMP, other
provisions of the Magnuson-Stevens
Act, and other applicable law, subject to
further consideration after public
comment.
The Office of Management and Budget
has determined that this proposed rule
is not significant for the purposes of
Executive Order 12866.
The Council prepared an IRFA, as
required by section 603 of the
Regulatory Flexibility Act (RFA),
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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules
included in Amendment 3 and
supplemented by information contained
in the preamble to this proposed rule.
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 section of the preamble and in the
SUMMARY of this proposed rule. A
summary of the IRFA follows. A copy of
this analysis is available from the
Council (see ADDRESSES).
All of the entities (fishing vessels)
affected by this action are considered
small entities under the Small Business
Administration size standards for small
fishing businesses (i.e., they have less
than $4.0 million in annual gross sales).
Therefore, there are no disproportionate
effects on small versus large entities.
This action does not introduce any
new reporting, recordkeeping, or other
compliance requirements. This
proposed rule does not duplicate,
overlap, or conflict with other Federal
rules.
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Description and Estimate of Number of
Small Entities to Which the Rule Would
Apply
The participants in the commercial
red crab fishery were defined as those
vessels issued limited access red crab
permits. Although some firms own more
than one vessel, available data make it
difficult to reliably identify ownership
control over more than one vessel. As of
December 2011, there were four vessels
with limited access red crab permits
actively operating in the red crab
fishery. For this analysis, the number of
permitted vessels is considered to be a
maximum estimate of the number of
small business entities. The total value
of landings in the red crab fishery
averaged $3.44 million, so all business
entities in the harvesting sector can be
categorized as small businesses for
purpose of the RFA, even if the
assumption overstates the number of
business entities.
Economic Impacts of the Proposed
Action Compared to Significant NonSelected Alternatives
The proposed action will affect all
four active vessels in the directed red
crab fishery. However, it is not expected
to have any impact on the gross or
average revenues for the fishery because
it does not change the total allowable
landings level for red crab from the FY
2010 level of 3.913 million lb (1,775
mt). This harvest level is substantially
higher than the average landings in
recent years (2.588 million lb (1,174 mt)
from FY 2007–2009), and is not
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expected to constrain landings unless
markets for red crab substantially
improve or major new markets develop.
The FY 2007–2009 landings were low
due to market conditions, and were not
constrained by the total catch limit
during 2007–2009.
Information on costs in the fishery is
not readily available and individual
vessel profitability cannot be
determined directly; therefore, expected
changes in gross revenues were used as
a proxy for profitability. For the four
participating vessels in 2009, average
total sales were $534,602 per vessel.
Because the proposed action would not
directly constrain the gross revenues per
vessel, it would not directly affect the
profits of individual vessels, and,
therefore, it is not necessary to analyze
impacts according to the dependence of
each vessel in the red crab fishery.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: June 29, 2011.
John Oliver,
Deputy Assistant Administrator for
Operations, 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 § 648.2, the definition for
‘‘Day(s)-at-Sea’’ is revised, and the
definition for ‘‘Red crab trip’’ is added,
in alphabetical order, to read as follows:
§ 648.2
Definitions.
*
*
*
*
*
Day(s)-at-Sea (DAS), with respect to
the NE multispecies and monkfish
fisheries (except as described in
§ 648.82(k)(1)(iv)), and the Atlantic sea
scallop fishery, means the 24-hr 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, or scallops.
*
*
*
*
*
Red crab trip, with respect to the
Atlantic deep-sea red crab fishery,
means a trip on which a vessel fishes
for, possesses, or lands, or intends to
fish for, possess, or land red crab in
excess of the incidental limit, as
specified at § 648.263(b)(1).
3. In § 648.4, paragraphs
(a)(13)(i)(E)(3), (a)(13)(i)(M), and
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(a)(13)(i)(N) are removed; and
paragraphs (a)(13)(i)(A) and (B) are
revised to read as follows:
§ 648.4
Vessel permits.
(a) * * *
(13) * * *
(i) Limited access red crab permit—
(A) Eligibility. Any vessel of the United
States that possesses or lands more than
the incidental amount of red crab, as
specified in § 648.263(b), per red crab
trip must have been issued and carry on
board a valid limited access red crab
permit.
(B) Application/renewal restrictions.
The provisions of paragraph (a)(1)(i)(B)
of this section apply.
*
*
*
*
*
§ 648.7
[Amended]
4. In § 648.7, paragraph (b)(2)(iii) is
removed.
5. In § 648.10, paragraphs (h)
introductory text, (h)(4), and (h)(8) are
revised to read as follows:
§ 648.10 VMS and DAS requirements for
vessel owners/operators.
*
*
*
*
*
(h) Call-in notification. The owner of
a vessel issued a limited access
monkfish permit who is participating in
a DAS program and who is not required
to provide notification using a VMS,
and a scallop vessel qualifying for a
DAS allocation under the occasional
category that has not elected to fish
under the VMS notification
requirements of paragraph (e) of this
section and is not participating in the
Sea Scallop Area Access program as
specified in § 648.60, and any vessel
that may be required by the Regional
Administrator to use the call-in program
under paragraph (i) of this section, are
subject to the following requirements:
*
*
*
*
*
(4) The vessel’s confirmation numbers
for the current and immediately prior
NE multispecies or monkfish fishing
trip must be maintained on board the
vessel and provided to an authorized
officer immediately upon request.
*
*
*
*
*
(8) Any vessel that possesses or lands
per trip more than 400 lb (181 kg) of
scallops; any vessel issued a limited
access NE multispecies permit subject to
the NE multispecies DAS program
requirements that possesses or lands
regulated NE multispecies, except as
provided in §§ 648.10(h)(9)(ii), 648.17,
and 648.89; and any vessel issued a
limited access monkfish permit subject
to the monkfish DAS program and callin requirement that possess or lands
monkfish above the incidental catch trip
limits specified in § 648.94(c) shall be
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deemed to be in its respective DAS
program for purposes of counting DAS
and will be charged DAS from its time
of sailing to landing, regardless of
whether the vessel’s owner or
authorized representative provides
adequate notification as required by
paragraphs (e) through (h) of this
section.
*
*
*
*
*
6. In § 648.14, paragraphs (t)(2)(iii)
and (t)(3)(iv) are added; paragraphs
(t)(2)(ii) and (t)(4) through (6) are
revised; and paragraph (t)(7) is removed
to read as follows:
§ 648.14
Prohibitions.
jlentini on DSK4TPTVN1PROD with PROPOSALS
*
*
*
*
*
(t) * * *
(2) * * *
(ii) Restriction on female red crabs.
Fish for, catch, possess, transport, land,
sell, trade, or barter; or attempt to fish
for, catch, possess, transport, land, sell,
trade, or barter; female red crabs in
excess of one standard U.S. fish tote in
a fishing year in which female red crabs
were not specified in the ABC and
authorized to be landed.
(iii) Fish for, possess, or land red crab,
in excess of the incidental limit
specified at § 648.263(b)(1), after
determination that the TAL has been
reached and notice of the closure date
has been made.
*
*
*
*
*
(3) * * *
(iv) Purchase or otherwise receive for
a commercial purpose in excess of the
incidental limit specified at
§ 648.263(b)(1), after determination that
the TAL has been reached and notice of
the closure date has been made.
(4) Prohibitions on processing and
mutilation. (i) Retain, possess, or land
red crab claws and legs separate from
crab bodies in excess of one standard
U.S. fish tote, if fishing on a red crab
trip with a valid Federal limited access
red crab permit.
(ii) Retain, possess, or land any red
crab claws and legs separate from crab
bodies if the vessel has not been issued
a valid Federal limited access red crab
permit or has been issued a valid
Federal limited access red crab permit,
but is not fishing on a dedicated red
crab trip.
(iii) Retain, possess, or land more than
two claws and eight legs per crab if the
vessel has been issued a valid Federal
red crab incidental catch permit, or has
been issued a valid Federal limited
access red crab permit and is not fishing
on a dedicated red crab trip.
(iv) Possess or land red crabs that
have been fully processed at sea, i.e.,
engage in any activity that removes meat
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from any part of a red crab, unless a
preponderance of available evidence
shows that the vessel fished exclusively
in state waters and was not issued a
valid Federal permit.
(5) Gear requirements. Fail to comply
with any gear requirements or
restrictions specified at § 648.264.
(6) Presumption. For purposes of this
part, the following presumption applies:
All red crab retained or possessed on a
vessel issued any permit under § 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.
*
*
*
*
*
7. Section 648.260 is revised to read
as follows:
§ 648.260
Specifications.
(a) Annual review and specifications
process. The Council, the Red Crab Plan
Development Team (PDT), and the Red
Crab Advisory Panel shall monitor the
status of the red crab fishery and
resource.
(1) The Red Crab PDT shall meet at
least once annually during the
intervening years between Stock
Assessment and Fishery Evaluation
(SAFE) Reports, described in paragraph
(b) of this section, to review the status
of the stock and the fishery. Based on
such review, the PDT shall provide a
report to the Council on any changes or
new information about the red crab
stock and/or fishery, and it shall
recommend whether the specifications
for the upcoming year(s) need to be
modified. At a minimum, this review
shall include a review of at least the
following data, if available: Commercial
catch data; current estimates of fishing
mortality and catch-per-unit-effort
(CPUE); discards; stock status; recent
estimates of recruitment; virtual
population analysis results and other
estimates of stock size; sea sampling,
port sampling, and survey data or, if sea
sampling data are unavailable, length
frequency information from port
sampling and/or surveys; impact of
other fisheries on the mortality of red
crabs; and any other relevant
information.
(2) If new and/or additional
information becomes available, the Red
Crab PDT shall consider it during this
annual review. Based on this review, the
Red Crab PDT shall provide guidance to
the Red Crab Committee and the
Council regarding the need to adjust
measures in the Red Crab FMP to better
achieve the FMP’s objectives. After
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39373
considering guidance, the Council may
submit to NMFS its recommendations
for changes to management measures, as
appropriate, through the specifications
process described in this section, the
framework process specified in
§ 648.261, or through an amendment to
the FMP.
(3) Based on the annual review,
described above, and/or the SAFE
Report described in paragraph (b) of this
section, recommendations for
acceptable biological catch (ABC) from
the Scientific and Statistical Committee
(SSC), and any other relevant
information, the Red Crab PDT shall
recommend to the Red Crab Committee
and Council the following specifications
for harvest of red crab: An annual catch
limit (ACL) set less than or equal to
ABC, and total allowable landings (TAL)
necessary to meet the objectives of the
FMP in each red crab fishing year,
specified for a period of up to 3 fishing
years.
(4) The PDT, after its review of the
available information on the status of
the stock and the fishery, may
recommend to the Council any
measures necessary to assure that the
specifications will not be exceeded, as
well as changes to the appropriate
specifications.
(5) Taking into account the annual
review and/or SAFE Report described in
paragraph (b) of this section, the advice
of the SSC, and any other relevant
information, the Red Crab PDT may also
recommend to the Red Crab Committee
and Council changes to stock status
determination criteria and associated
thresholds based on the best scientific
information available, including
information from peer-reviewed stock
assessments of red crab. These
adjustments may be included in the
Council’s specifications for the red crab
fishery.
(6) Council recommendation—(i) The
Council shall review the
recommendations of the Red Crab PDT,
Red Crab Committee, and SSC, any
public comment received thereon, and
any other relevant information, and
make a recommendation to the Regional
Administrator on appropriate
specifications and any measures
necessary to assure that the
specifications will not be exceeded.
(ii) The Council’s recommendation
must include supporting
documentation, as appropriate,
concerning the environmental,
economic, and social impacts of the
recommendations. The Regional
Administrator shall consider the
recommendations and publish a rule in
the Federal Register proposing
specifications and associated measures,
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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules
consistent with the Administrative
Procedure Act.
(iii) The Regional Administrator may
propose specifications different than
those recommended by the Council. If
the specifications published in the
Federal Register differ from those
recommended by the Council, the
reasons for any differences must be
clearly stated and the revised
specifications must satisfy the criteria
set forth in this section, the FMP, and
other applicable laws.
(iv) If the final specifications are not
published in the Federal Register for
the start of the fishing year, the previous
year’s specifications shall remain in
effect until superseded by the final rule
implementing the current year’s
specifications, to ensure that there is no
lapse in regulations while new
specifications are completed.
(b) SAFE Report. (1) The Red Crab
PDT shall prepare a SAFE Report at
least every 3 yr. Based on the SAFE
Report, the Red Crab PDT shall develop
and present to the Council
recommended specifications as defined
in paragraph (a) of this section for up to
3 fishing years. The SAFE Report shall
be the primary vehicle for the
presentation of all updated biological
and socio-economic information
regarding the red crab fishery. The
SAFE Report shall provide source data
for any adjustments to the management
measures that may be needed to
continue to meet the goals and
objectives of the FMP.
(2) In any year in which a SAFE
Report is not completed by the Red Crab
PDT, the annual review process
described in paragraph (a) of this
section shall be used to recommend any
necessary adjustments to specifications
and/or management measures in the
FMP.
8. Section 648.262 is revised to read
as follows:
jlentini on DSK4TPTVN1PROD with PROPOSALS
§ 648.262 Accountability measures for red
crab limited access vessels.
(a) Closure authority. NMFS shall
close the EEZ to fishing for red crab in
excess of the incidental limit by
commercial vessels for the remainder of
the fishing year if the Regional
Administrator determines that the TAL
has been harvested. Upon notification of
the closure, a vessel issued a limited
access red crab permit may not fish for,
catch, possess, transport, land, sell,
trade, or barter, in excess of 500 lb
(226.8 kg) of red crab, or its equivalent
in weight as specified at
§ 648.263(a)(2)(i) and (ii), per fishing
trip in or from the Red Crab
Management Unit.
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(b) Adjustment for an overage. (1) If
NMFS determines that the TAL was
exceeded in a given fishing year, the
exact amount of the landings overage
will be deducted, as soon as is
practicable, from a subsequent single
fishing year’s TAL, through notification
consistent with the Administrative
Procedure Act.
(2) If NMFS determines that the ACL
was exceeded in a given fishing year,
the exact amount of an overage that was
not already deducted from the TAL
under paragraph (b)(i) of this section
will be deducted, as soon as is
practicable, from a subsequent single
fishing year’s TAL, through notification
consistent with the Administrative
Procedure Act.
9. In § 648.263, paragraph (a)(1) is
removed and reserved, and paragraphs
(a)(3), (a)(5), and (b)(1) are revised to
read as follows:
(1) Limited access red crab vessel may
not harvest red crab from any fishing
gear other than red crab traps/pots,
marked as specified by paragraph (a)(5)
of this section.
(2) Limited access red crab vessels
may not deploy more than 600 traps/
pots in water depths greater than 400 m
(219 fath), and may not harvest red crab
in water depths less than 400 m (219
fath).
(3) Parlor traps/pots. Limited access
red crab vessels may not deploy parlor
traps/pots in water depths greater than
400 meters (219 fathoms).
*
*
*
*
*
(6) Additional gear requirements.
Vessels must comply with the gear
regulations found at § 229.32 of this
title.
*
*
*
*
*
[FR Doc. 2011–16895 Filed 7–5–11; 8:45 am]
BILLING CODE 3510–22–P
§ 648.263 Red crab possession and
landing restrictions.
(a) * * *
(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 on a dedicated red crab trip,
unless the Council has recommended,
and NMFS has implemented, an ACL
and specifications, based on a
recommendation from the SSC and the
procedures specified in § 648.260, that
authorizes the landings of female red
crabs for a given fishing year.
*
*
*
*
*
(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 on a dedicated red
crab trip.
(b) * * *
(1) Possession and landing
restrictions. A vessel or operator of a
vessel that has been issued a red crab
incidental catch permit, or a vessel
issued a limited access red crab permit
not on a dedicated red crab trip, as
defined in § 648.2, 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.
*
*
*
*
*
10. In § 648.264, paragraphs (a)(1),
(a)(2), (a)(3), and (a)(6) are revised to
read as follows:
§ 648.264
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(a) * * *
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
RIN 0648–AX05
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Atlantic
Mackerel, Squid, and Butterfish
Fisheries; Amendment 11
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Announcement of availability of
fishery management plan amendment;
request for comments.
AGENCY:
NMFS announces that the
Mid-Atlantic Fishery Management
Council (Council) has submitted
Amendment 11 to the Atlantic
Mackerel, Squid, and Butterfish (MSB)
Fishery Management Plan (FMP)
(Amendment 11), incorporating the
Final Environmental Impact Statement
(FEIS) and the Initial Regulatory
Flexibility Analysis (IRFA), for review
by the Secretary of Commerce and is
requesting comments from the public.
DATES: Comments must be received on
or before September 6, 2011.
ADDRESSES: A final environmental
impact statement (FEIS) was prepared
for Amendment 11 that describes the
proposed action and other considered
alternatives and provides a thorough
analysis of the impacts of the proposed
SUMMARY:
E:\FR\FM\06JYP1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39369-39374]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16895]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100903433-1349-01]
RIN 0648-BA22
Fisheries of the Northeastern United States; Atlantic Deep-Sea
Red Crab Fishery; Amendment 3
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to implement Amendment 3 to the
Atlantic Deep-Sea Red Crab Fishery Management Plan (Red Crab FMP). The
New England Fishery Management Council (Council) developed Amendment 3
to bring the Red Crab FMP into compliance with the annual catch limit
(ACL) and accountability measure (AM) requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Although
[[Page 39370]]
recommended by the Council as part of Amendment 3, this proposed rule
announces NMFS' intention to disapprove a proposed measure to modify
the existing trap restrictions and a proposed measure to remove the
prohibition on landing more than one standard tote of female red crabs.
DATES: Written comments must be received no later than 5 p.m. eastern
standard time, on August 5, 2011.
ADDRESSES: An environmental assessment (EA) was prepared for Amendment
3 that describes the proposed action and other considered alternatives,
and provides an analysis of the impacts of the proposed measures and
alternatives. Copies of Amendment 3, including the EA and the Initial
Regulatory Flexibility Analysis (IRFA), are available on request from
Paul J. Howard, Executive Director, New England Fishery Management
Council, 50 Water Street, Newburyport, MA 01950. These documents are
also available online at https://www.nefmc.org.
You may submit comments, identified by RIN 0648-BA22, by any one of
the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: https://www.regulations.gov.
Fax: (978) 281-9135, Attn: Moira Kelly.
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 Red Crab
Amendment 3 Proposed Rule.''
Instructions: All comments received are part of the public record
and will generally be posted to https://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.
FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst,
(978) 281-9218.
SUPPLEMENTARY INFORMATION:
Background
The Council developed Amendment 3 with the primary goal of bringing
the Red Crab FMP into compliance with the requirements of the
reauthorized Magnuson-Stevens Act that FMPs include ACLs and AMs. The
Red Crab FMP was implemented in October 2002. Since implementation, the
red crab fishery has been managed under a target TAC and DAS system
that allocated DAS equally across the fleet of limited access permitted
vessels. The fleet DAS allocation was calculated by determining how
many DAS would be required to reach the target TAC based on recent
average landings-per-DAS by the active vessels. The FY 2010 target TAC
was 3.91 million lb and fleet DAS allocation was 665 DAS. The FY 2010
specifications will remain in place until replaced by the proposed
specifications in Amendment 3, if approved.
Proposed Management Measures
1. Biological and Management Reference Points
The biological and management reference points currently in the Red
Crab FMP are used to determine if overfishing is occurring or if the
stock is overfished. However, these reference points for red crab are
currently not sufficient to comply with the Magnuson-Stevens Act and
the National Standard 1 (NS1) guidelines. As a result, the Council
intended to establish new estimates for maximum sustainable yield
(MSY), optimum yield (OY), overfishing limit (OFL), and acceptable
biological catch (ABC) for red crab. However, there is still
insufficient information on the species to establish the MSY, OY, or
OFL, and ABC is defined in terms of landings instead of total catch
(i.e., landings plus dead discards).
MSY is defined under the Magnuson-Stevens Act as ``the largest
long-term average catch or yield that can be taken from a stock or
stock complex under prevailing ecological, environmental conditions and
fishery technological characteristics (e.g., gear selectivity), and the
distribution of catch among fleets.'' However, the Council's Scientific
and Statistical Committee (SSC) determined that the model results from
the December 2008 Data Poor Stocks Working Group (DPSWG) are an
underestimate of MSY for red crab, but could not determine by how much,
and so the SSC did not recommend an estimate of MSY. As a result, the
MSY estimated in the FMP was rejected, but a new estimate could not be
determined. Because the SSC could not determine MSY, a new value for OY
could not be developed.
The OFL is an estimate of the catch level above which overfishing
is occurring, but based on the available information, the SSC
determined that an OFL could not be estimated for the red crab fishery
at this time.
ABC is defined under the Magnuson-Stevens Act as ``a level of stock
or stock complex's annual catch that accounts for the scientific
uncertainty in the estimate of OFL and any other scientific
uncertainty, and should be specified based on the ABC control rule.''
The NS1 guidelines further state that ``ABC may not exceed OFL,'' and
that ``the determination of ABC should be based, when possible, on the
probability that an actual catch equal to a stock's ABC would result in
overfishing.'' These guidelines also require that the Council's ABC
control rule be based on scientific advice provided by its SSC and that
the SSC recommend the ABC to the Council.
At its March 16, 2010, meeting, the SSC determined that the
available information for red crab provided an insufficient basis on
which to recommend an ABC control rule, and that ``an interim ABC based
on long-term average landings is safely below an overfishing threshold
and adequately accounts for scientific uncertainty.'' The SSC reviewed
information on historical dead discards of red crab in the directed
trap fishery and in bycatch fisheries at its June 22, 2010, meeting in
an effort to recommend an ABC that includes both landings and dead
discards. However, the SSC determined that there was insufficient
information to specify dead discards, but that the long-term average
landings, and the presumed discarding practices associated with those
landings, were sustainable, and maintained its recommendation of
specifying the interim red crab ABC in terms of landings only. Based on
this approach, the long-term average landings for 1974-2008 result in
an ABC of 3.91 million lb (1,775 mt), represented in terms of
commercial landings.
2. ACL
Under section 303(a)(15) of the Magnuson-Stevens Act, any FMP must
establish a mechanism for specifying ACLs at a level that prevents
overfishing. The NS1 guidelines further state that the ACL for a given
stock or stock complex cannot exceed the ABC, that it serves as the
basis for invoking AMs, and that ACLs in coordination with AMs must
prevent overfishing. Based on the requirements of the Magnuson-Stevens
Act and the NS1
[[Page 39371]]
guidelines with respect to ACLs and AMs, Amendment 3 proposes that the
ACL for red crab be set equal to the ABC, because scientific
uncertainty has been accounted for in establishing the ABC. This rule
also proposes to set the ACL equal to the total allowable landings
(TAL) for FYs 2011-2013, because the management uncertainty in the red
crab fishery is minimal and the SSC determined that there was
insufficient information to specify dead discards.
3. Accountability Measures
The NS1 guidelines describe AMs as management controls aimed at
preventing the ACL from being exceeded, and to correct or mitigate
overages of the ACL. The Council proposes both proactive and reactive
AMs for the red crab fishery in Amendment 3. The proactive AM would
grant the Regional Administrator the authority to close the red crab
fishery when the TAL is projected to be harvested. The reactive AM
would be a pound-for-pound payback of any overage, should the TAL be
exceeded. In any year in which the ACL and TAL are not equal, if any
overage of the ACL is not accounted for through the AM that applies to
an overage of the TAL (e.g., higher than expected discards, or an
unexpected increase in incidental landings by vessels with open access
red crab permits), then the unaccounted-for amount by which the ACL was
exceeded will be deducted from the subsequent single fishing year's
ACL.
4. FYs 2011-2013 Specifications
The Council proposes the following specifications for red crab for
FYs 2011-2013:
------------------------------------------------------------------------
mt Million lb
------------------------------------------------------------------------
MSY............................... undetermined
OFL............................... undetermined
OY................................ undetermined
-------------------------------------
ABC............................... 1,775................ 3.91
ACL............................... 1,775................ 3.91
TAL............................... 1,775................ 3.91
------------------------------------------------------------------------
5. TAL; Eliminate DAS
This measure would replace the DAS and target TAC management scheme
with a TAL. The Council intends this measure to work in conjunction
with the in-season closure authority AM, which would grant the Regional
Administrator the authority to close the fishery when the TAL is
project to be harvested. This measure is being proposed to simplify the
management measures for red crab, provide increased flexibility to the
red crab fleet, and ensure more accurate accounting of the catch
limits.
6. Eliminate Trip Limits
Red crab vessels qualified for a trip limit during the initial
limited access qualification process. The FMP originally specified a
trip limit of 75,000 lb (34,019 kg), unless a vessel owner could
demonstrate he or she landed more than 75,000 lb (34,019 kg) on a trip
during the qualification period, in which case the owner was granted a
trip limit equal to that higher level, rounded to the nearest 5,000 lb
(2,268 kg). Only one vessel qualified under that provision, and it has
operated with a trip limit of 125,000 lb (56,699 kg) since 2002. The
proposed rule would eliminate these trip limits to simplify the
management measures for red crab and provide increased flexibility to
the red crab fleet.
7. Modify Trap Limit Regulations
The current trap limit regulations state that red crab may not be
harvested from gear other than a marked red crab trap; no more than 600
traps may be used when fishing for red crab; and lobster, red crab, or
fish may not be harvested from a parlor trap while on a red crab DAS.
The proposed measure would modify the regulation to prohibit more than
600 traps being deployed in water deeper than 400 m; prohibit a limited
access red crab vessel from harvesting red crab in water shallower than
400 m; and prohibit parlor traps from being deployed at water shallower
than 400 m. This measure was proposed by the Council to allow red crab
vessels that also fish for lobster to do so on the same trip. However,
the proposed modifications may be unenforceable. They would require an
enforcement agent to witness the deployment of traps beyond the
recommended depth range and/or witness the at-sea retrieval of the
traps to determine compliance with the regulations. As this is not
practical, NMFS proposes to disapprove this measure because of the
inability to effectively enforce these regulations.
8. Remove Prohibition on Landing Female Red Crab
The Council has also proposed a measure that would remove the
current prohibition on landing more than one standard tote (100 lb
(45.4 kg)) of female red crab, conditional on a scientific
recommendation from the SSC. The Council proposed this measure to allow
the future expansion of the fishery to include female red crab.
However, NMFS considers this proposal to be administratively
unnecessary and inconsistent with the best available science.
Administratively, modifying the regulations to allow landing female
red crabs could be done through a framework adjustment, as specified in
the FMP, and the analytical requirements to implement such a change to
the male-only fishery would be the same with or without the approval of
this measure. Amendment 3 did not recommend any specific management
measures or monitoring protocol that would potentially need to be
implemented in conjunction with implementing this change.
Scientifically, the SSC determined that at this time there is
insufficient scientific information available to make any determination
as to the potential impact on red crab of landing more than an
incidental amount of female red crab. Further, analysis of the impacts
of landing female red crabs was not included in the FMP and none is
included in Amendment 3. If sufficient scientific information becomes
available, and the Council determines it is interested in removing this
prohibition once specific management measures to accommodate this
change are developed, additional Council action and analysis would be
required, regardless of whether this measure is implemented in
Amendment 3. Therefore, NMFS proposes to disapprove this measure. NMFS
seeks comments on all of the proposed measures in Amendment 3, as well
as on its intention to disapprove two of the Council's proposed
measures.
As required under section 303(c) of the Magnuson-Stevens Act, the
Council reviewed the draft regulations and deemed them necessary and
appropriate for implementation of Amendment 3. Technical changes to the
regulations deemed necessary by the Secretary for clarity may be made,
as provided under section 304(b) of the Magnuson-Stevens Act.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Red Crab FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration
after public comment.
The Office of Management and Budget has determined that this
proposed rule is not significant for the purposes of Executive Order
12866.
The Council prepared an IRFA, as required by section 603 of the
Regulatory Flexibility Act (RFA),
[[Page 39372]]
included in Amendment 3 and supplemented by information contained in
the preamble to this proposed rule. 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 section of
the preamble and in the SUMMARY of this proposed rule. A summary of the
IRFA follows. A copy of this analysis is available from the Council
(see ADDRESSES).
All of the entities (fishing vessels) affected by this action are
considered small entities under the Small Business Administration size
standards for small fishing businesses (i.e., they have less than $4.0
million in annual gross sales). Therefore, there are no
disproportionate effects on small versus large entities.
This action does not introduce any new reporting, recordkeeping, or
other compliance requirements. This proposed rule does not duplicate,
overlap, or conflict with other Federal rules.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
The participants in the commercial red crab fishery were defined as
those vessels issued limited access red crab permits. Although some
firms own more than one vessel, available data make it difficult to
reliably identify ownership control over more than one vessel. As of
December 2011, there were four vessels with limited access red crab
permits actively operating in the red crab fishery. For this analysis,
the number of permitted vessels is considered to be a maximum estimate
of the number of small business entities. The total value of landings
in the red crab fishery averaged $3.44 million, so all business
entities in the harvesting sector can be categorized as small
businesses for purpose of the RFA, even if the assumption overstates
the number of business entities.
Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives
The proposed action will affect all four active vessels in the
directed red crab fishery. However, it is not expected to have any
impact on the gross or average revenues for the fishery because it does
not change the total allowable landings level for red crab from the FY
2010 level of 3.913 million lb (1,775 mt). This harvest level is
substantially higher than the average landings in recent years (2.588
million lb (1,174 mt) from FY 2007-2009), and is not expected to
constrain landings unless markets for red crab substantially improve or
major new markets develop. The FY 2007-2009 landings were low due to
market conditions, and were not constrained by the total catch limit
during 2007-2009.
Information on costs in the fishery is not readily available and
individual vessel profitability cannot be determined directly;
therefore, expected changes in gross revenues were used as a proxy for
profitability. For the four participating vessels in 2009, average
total sales were $534,602 per vessel. Because the proposed action would
not directly constrain the gross revenues per vessel, it would not
directly affect the profits of individual vessels, and, therefore, it
is not necessary to analyze impacts according to the dependence of each
vessel in the red crab fishery.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: June 29, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, 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. 648.2, the definition for ``Day(s)-at-Sea'' is revised,
and the definition for ``Red crab trip'' is added, in alphabetical
order, to read as follows:
Sec. 648.2 Definitions.
* * * * *
Day(s)-at-Sea (DAS), with respect to the NE multispecies and
monkfish fisheries (except as described in Sec. 648.82(k)(1)(iv)), and
the Atlantic sea scallop fishery, means the 24-hr 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, or scallops.
* * * * *
Red crab trip, with respect to the Atlantic deep-sea red crab
fishery, means a trip on which a vessel fishes for, possesses, or
lands, or intends to fish for, possess, or land red crab in excess of
the incidental limit, as specified at Sec. 648.263(b)(1).
3. In Sec. 648.4, paragraphs (a)(13)(i)(E)(3), (a)(13)(i)(M), and
(a)(13)(i)(N) are removed; and paragraphs (a)(13)(i)(A) and (B) are
revised to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(13) * * *
(i) Limited access red crab permit-- (A) Eligibility. Any vessel of
the United States that possesses or lands more than the incidental
amount of red crab, as specified in Sec. 648.263(b), per red crab trip
must have been issued and carry on board a valid limited access red
crab permit.
(B) Application/renewal restrictions. The provisions of paragraph
(a)(1)(i)(B) of this section apply.
* * * * *
Sec. 648.7 [Amended]
4. In Sec. 648.7, paragraph (b)(2)(iii) is removed.
5. In Sec. 648.10, paragraphs (h) introductory text, (h)(4), and
(h)(8) are revised to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(h) Call-in notification. The owner of a vessel issued a limited
access monkfish permit who is participating in a DAS program and who is
not required to provide notification using a VMS, and a scallop vessel
qualifying for a DAS allocation under the occasional category that has
not elected to fish under the VMS notification requirements of
paragraph (e) of this section and is not participating in the Sea
Scallop Area Access program as specified in Sec. 648.60, and any
vessel that may be required by the Regional Administrator to use the
call-in program under paragraph (i) of this section, are subject to the
following requirements:
* * * * *
(4) The vessel's confirmation numbers for the current and
immediately prior NE multispecies or monkfish fishing trip must be
maintained on board the vessel and provided to an authorized officer
immediately upon request.
* * * * *
(8) Any vessel that possesses or lands per trip more than 400 lb
(181 kg) of scallops; any vessel issued a limited access NE
multispecies permit subject to the NE multispecies DAS program
requirements that possesses or lands regulated NE multispecies, except
as provided in Sec. Sec. 648.10(h)(9)(ii), 648.17, and 648.89; and any
vessel issued a limited access monkfish permit subject to the monkfish
DAS program and call-in requirement that possess or lands monkfish
above the incidental catch trip limits specified in Sec. 648.94(c)
shall be
[[Page 39373]]
deemed to be in its respective DAS program for purposes of counting DAS
and will be charged DAS from its time of sailing to landing, regardless
of whether the vessel's owner or authorized representative provides
adequate notification as required by paragraphs (e) through (h) of this
section.
* * * * *
6. In Sec. 648.14, paragraphs (t)(2)(iii) and (t)(3)(iv) are
added; paragraphs (t)(2)(ii) and (t)(4) through (6) are revised; and
paragraph (t)(7) is removed to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(t) * * *
(2) * * *
(ii) Restriction on female red crabs. Fish for, catch, possess,
transport, land, sell, trade, or barter; or attempt to fish for, catch,
possess, transport, land, sell, trade, or barter; female red crabs in
excess of one standard U.S. fish tote in a fishing year in which female
red crabs were not specified in the ABC and authorized to be landed.
(iii) Fish for, possess, or land red crab, in excess of the
incidental limit specified at Sec. 648.263(b)(1), after determination
that the TAL has been reached and notice of the closure date has been
made.
* * * * *
(3) * * *
(iv) Purchase or otherwise receive for a commercial purpose in
excess of the incidental limit specified at Sec. 648.263(b)(1), after
determination that the TAL has been reached and notice of the closure
date has been made.
(4) Prohibitions on processing and mutilation. (i) Retain, possess,
or land red crab claws and legs separate from crab bodies in excess of
one standard U.S. fish tote, if fishing on a red crab trip with a valid
Federal limited access red crab permit.
(ii) Retain, possess, or land any red crab claws and legs separate
from crab bodies if the vessel has not been issued a valid Federal
limited access red crab permit or has been issued a valid Federal
limited access red crab permit, but is not fishing on a dedicated red
crab trip.
(iii) Retain, possess, or land more than two claws and eight legs
per crab if the vessel has been issued a valid Federal red crab
incidental catch permit, or has been issued a valid Federal limited
access red crab permit and is not fishing on a dedicated red crab trip.
(iv) Possess or land red crabs that have been fully processed at
sea, i.e., engage in any activity that removes meat from any part of a
red crab, unless a preponderance of available evidence shows that the
vessel fished exclusively in state waters and was not issued a valid
Federal permit.
(5) Gear requirements. Fail to comply with any gear requirements or
restrictions specified at Sec. 648.264.
(6) Presumption. For purposes of this part, the following
presumption applies: 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.
* * * * *
7. Section 648.260 is revised to read as follows:
Sec. 648.260 Specifications.
(a) Annual review and specifications process. The Council, the Red
Crab Plan Development Team (PDT), and the Red Crab Advisory Panel shall
monitor the status of the red crab fishery and resource.
(1) The Red Crab PDT shall meet at least once annually during the
intervening years between Stock Assessment and Fishery Evaluation
(SAFE) Reports, described in paragraph (b) of this section, to review
the status of the stock and the fishery. Based on such review, the PDT
shall provide a report to the Council on any changes or new information
about the red crab stock and/or fishery, and it shall recommend whether
the specifications for the upcoming year(s) need to be modified. At a
minimum, this review shall include a review of at least the following
data, if available: Commercial catch data; current estimates of fishing
mortality and catch-per-unit-effort (CPUE); discards; stock status;
recent estimates of recruitment; virtual population analysis results
and other estimates of stock size; sea sampling, port sampling, and
survey data or, if sea sampling data are unavailable, length frequency
information from port sampling and/or surveys; impact of other
fisheries on the mortality of red crabs; and any other relevant
information.
(2) If new and/or additional information becomes available, the Red
Crab PDT shall consider it during this annual review. Based on this
review, the Red Crab PDT shall provide guidance to the Red Crab
Committee and the Council regarding the need to adjust measures in the
Red Crab FMP to better achieve the FMP's objectives. After considering
guidance, the Council may submit to NMFS its recommendations for
changes to management measures, as appropriate, through the
specifications process described in this section, the framework process
specified in Sec. 648.261, or through an amendment to the FMP.
(3) Based on the annual review, described above, and/or the SAFE
Report described in paragraph (b) of this section, recommendations for
acceptable biological catch (ABC) from the Scientific and Statistical
Committee (SSC), and any other relevant information, the Red Crab PDT
shall recommend to the Red Crab Committee and Council the following
specifications for harvest of red crab: An annual catch limit (ACL) set
less than or equal to ABC, and total allowable landings (TAL) necessary
to meet the objectives of the FMP in each red crab fishing year,
specified for a period of up to 3 fishing years.
(4) The PDT, after its review of the available information on the
status of the stock and the fishery, may recommend to the Council any
measures necessary to assure that the specifications will not be
exceeded, as well as changes to the appropriate specifications.
(5) Taking into account the annual review and/or SAFE Report
described in paragraph (b) of this section, the advice of the SSC, and
any other relevant information, the Red Crab PDT may also recommend to
the Red Crab Committee and Council changes to stock status
determination criteria and associated thresholds based on the best
scientific information available, including information from peer-
reviewed stock assessments of red crab. These adjustments may be
included in the Council's specifications for the red crab fishery.
(6) Council recommendation--(i) The Council shall review the
recommendations of the Red Crab PDT, Red Crab Committee, and SSC, any
public comment received thereon, and any other relevant information,
and make a recommendation to the Regional Administrator on appropriate
specifications and any measures necessary to assure that the
specifications will not be exceeded.
(ii) The Council's recommendation must include supporting
documentation, as appropriate, concerning the environmental, economic,
and social impacts of the recommendations. The Regional Administrator
shall consider the recommendations and publish a rule in the Federal
Register proposing specifications and associated measures,
[[Page 39374]]
consistent with the Administrative Procedure Act.
(iii) The Regional Administrator may propose specifications
different than those recommended by the Council. If the specifications
published in the Federal Register differ from those recommended by the
Council, the reasons for any differences must be clearly stated and the
revised specifications must satisfy the criteria set forth in this
section, the FMP, and other applicable laws.
(iv) If the final specifications are not published in the Federal
Register for the start of the fishing year, the previous year's
specifications shall remain in effect until superseded by the final
rule implementing the current year's specifications, to ensure that
there is no lapse in regulations while new specifications are
completed.
(b) SAFE Report. (1) The Red Crab PDT shall prepare a SAFE Report
at least every 3 yr. Based on the SAFE Report, the Red Crab PDT shall
develop and present to the Council recommended specifications as
defined in paragraph (a) of this section for up to 3 fishing years. The
SAFE Report shall be the primary vehicle for the presentation of all
updated biological and socio-economic information regarding the red
crab fishery. The SAFE Report shall provide source data for any
adjustments to the management measures that may be needed to continue
to meet the goals and objectives of the FMP.
(2) In any year in which a SAFE Report is not completed by the Red
Crab PDT, the annual review process described in paragraph (a) of this
section shall be used to recommend any necessary adjustments to
specifications and/or management measures in the FMP.
8. Section 648.262 is revised to read as follows:
Sec. 648.262 Accountability measures for red crab limited access
vessels.
(a) Closure authority. NMFS shall close the EEZ to fishing for red
crab in excess of the incidental limit by commercial vessels for the
remainder of the fishing year if the Regional Administrator determines
that the TAL has been harvested. Upon notification of the closure, a
vessel issued a limited access red crab permit may not fish for, catch,
possess, transport, land, sell, trade, or barter, in excess of 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.
(b) Adjustment for an overage. (1) If NMFS determines that the TAL
was exceeded in a given fishing year, the exact amount of the landings
overage will be deducted, as soon as is practicable, from a subsequent
single fishing year's TAL, through notification consistent with the
Administrative Procedure Act.
(2) If NMFS determines that the ACL was exceeded in a given fishing
year, the exact amount of an overage that was not already deducted from
the TAL under paragraph (b)(i) of this section will be deducted, as
soon as is practicable, from a subsequent single fishing year's TAL,
through notification consistent with the Administrative Procedure Act.
9. In Sec. 648.263, paragraph (a)(1) is removed and reserved, and
paragraphs (a)(3), (a)(5), and (b)(1) are revised to read as follows:
Sec. 648.263 Red crab possession and landing restrictions.
(a) * * *
(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 on a dedicated red crab trip, unless the
Council has recommended, and NMFS has implemented, an ACL and
specifications, based on a recommendation from the SSC and the
procedures specified in Sec. 648.260, that authorizes the landings of
female red crabs for a given fishing year.
* * * * *
(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 on a dedicated red crab
trip.
(b) * * *
(1) Possession and landing restrictions. A vessel or operator of a
vessel that has been issued a red crab incidental catch permit, or a
vessel issued a limited access red crab permit not on a dedicated red
crab trip, as defined in Sec. 648.2, 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.
* * * * *
10. In Sec. 648.264, paragraphs (a)(1), (a)(2), (a)(3), and (a)(6)
are revised to read as follows:
Sec. 648.264 Gear requirements/restrictions.
(a) * * *
(1) Limited access red crab vessel may not harvest red crab from
any fishing gear other than red crab traps/pots, marked as specified by
paragraph (a)(5) of this section.
(2) Limited access red crab vessels may not deploy more than 600
traps/pots in water depths greater than 400 m (219 fath), and may not
harvest red crab in water depths less than 400 m (219 fath).
(3) Parlor traps/pots. Limited access red crab vessels may not
deploy parlor traps/pots in water depths greater than 400 meters (219
fathoms).
* * * * *
(6) Additional gear requirements. Vessels must comply with the gear
regulations found at Sec. 229.32 of this title.
* * * * *
[FR Doc. 2011-16895 Filed 7-5-11; 8:45 am]
BILLING CODE 3510-22-P
