[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Rules and Regulations]
[Pages 42606-42607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20308]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090206152-9249-01]
RIN 0648-AX61


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

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

ACTION: Temporary rule; emergency action extended.

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SUMMARY: NMFS is continuing emergency measures to reduce the target 
total allowable catch (TAC) and associated days-at-sea (DAS) 
allocations in the Atlantic deep-sea red crab fishery, based on recent 
scientific information. The red crab stock was assessed by the Data 
Poor Stocks Working Group in the fall of 2008, and a final report 
published in January 2009 indicates that the current estimate of 
maximum sustainable yield (MSY) for red crab is no longer reliable. 
This action is necessary to comply with the objectives of the Deep-Sea 
Red Crab Fishery Management Plan (FMP), as well as to ensure compliance 
with the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). This action is intended to prevent 
unsustainable fishing of the red crab resource while the New England 
Fishery Management Council (Council) develops specifications and 
measures to address the new assessment results.

DATES: The expiration date of the emergency rule published March 6, 
2009 (74 FR 9770); is extended to February 28, 2010, or until 
superseded by another final rule which will publish in the Federal 
Register.

ADDRESSES: Copies of the Small Entity Compliance Guide, the Regulatory 
Impact Review (RIR), and the Environmental Assessment (EA) prepared for 
the March 6, 2009, emergency interim final rule are available from 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, 
(978) 281-9218, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: NMFS published a rule that implemented 
emergency measures to prevent unsustainable fishing in the Atlantic 
deep-sea red crab fishery in response to results from the Northeast 
Fisheries Science Center's Data Poor Stocks Working Group and Review 
Panel. A temporary rule justifying emergency action and soliciting 
public comment on the emergency management measures was published on 
March 6, 2009 (74 FR 9970), and NMFS accepted comments through April 6, 
2009. The measures implemented by the emergency interim final rule 
include: (1) a reduction in the 2009 target total allowable catch from 
5.928 million lb (2,689 mt) to 3.56 million lb (1,615 mt); and (2) a 
reduction in the number of DAS initially allocated to each of the five 
limited access permit holders from 156 DAS to 116 DAS. However, as has 
occurred each year since 2003, one of the limited access permits has 
been declared out of the fishery for the 2009 fishing year. Therefore, 
the total fleet-wide allocation of 582 DAS is reallocated, and the 
resulting DAS allocation remains 146 DAS for each of the active four 
limited access permit holders. These measures became effective on April 
6, 2009, and remain in effect for a period of 180 calendar days, 
expiring on September 2, 2009. A more detailed explanation and 
background for this action was provided in the rule published on March 
6, 2009, and is not repeated here. This action extends these 
regulations through the end of the red crab fishing year. The

[[Page 42607]]

Council intends to incorporate the results of the Data Poor Stocks 
Workshop and Review Panel into the development of specifications for 
the 2010 fishing year and an upcoming amendment to the FMP.
    NMFS has determined that this action complies with agency guidance 
for implementation of emergency measures under section 305(c) of the 
Magnuson-Stevens Act (August 21, 1997, 62 FR 44421). This rule is 
intended to address: (1) results from the recently published (January 
20, 2009) final report of the Data Poor Stocks Working Group and Review 
Panel indicating that, based on the best available scientific 
information, the MSY for red crab is 33-40 percent less than previously 
estimated; (2) serious conservation and management problems in the 
fishery, which, if left unaddressed, would likely result in 
unsustainable fishing of the red crab stock; and (3) the need to 
immediately reduce the annual target TAC and DAS allocations for the 
2009 fishing year in order to prevent unsustainable fishing. Without 
this action, unsustainable fishing is likely, which could cause more 
significant long-term impacts on the red crab resource and fishery than 
the short-term impacts to the fishery expected from this emergency 
action. The basis for taking this action is ecological in nature in 
that it is intended to prevent unsustainable fishing.

Comments and Responses to the March 6, 2009 Emergency Rule

    Two comments were received from the New England Red Crab 
Harvester's Association, one on March 23, 2009, and a second on April 
7, 2009. Both comments opposed the structure of the emergency rule and 
suggested alternative management measures. The first comment suggested 
eliminating DAS as a management measure for this fishery and converting 
the target TAC to a ``hard'' TAC, meaning that when the TAC is 
achieved, the fishery would be closed. The second comment requested 
that the DAS not be divided equally among the fleet, but rather used as 
a fleet-wide DAS allocation, allowing the New England Red Crab 
Harvester's Association to independently decide how many DAS each 
vessel would fish. The emergency rule was, and is, intended as a 
temporary stop-gap measure, based on recently developed results of the 
Data Poor Stocks Working Group to prevent unsustainable fishing within 
the confines of the current FMP while the Council develops new or 
additional measures and specifications for the FMP. It would not be 
appropriate, or even possible, to significantly change, within the 
timeframe of this rule, the management scheme as suggested by the 
commenter because such changes are beyond the scope of this temporary 
stop-gap measure and should be done through the Council process, not 
unilaterally by NMFS. Moreover, the type of changes suggested by the 
commenter are allocative in nature and would be administratively 
difficult, if not impossible, to implement in the time period needed to 
address unsustainable fishing for this fishing year.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA (AA) finds good 
cause under U.S.C. 553(b)(B) to waive any further prior notice and the 
opportunity for public comment on this action. This action continues 
emergency measures implemented on April 6, 2009, for up to 186 days 
beyond the current expiration date of September 2, 2009. The conditions 
prompting the initial emergency action still remain. In addition, there 
was opportunity to comment on the emergency measures continued by this 
temporary rule. Therefore, the AA finds that it would be impracticable 
and contrary to the public interest to delay the implementation of 
these measures by providing additional opportunities for public 
comment.
    The AA also finds good cause under U.S.C. 553(d)(3) to waive the 
delayed effectiveness of this temporary rule. A 30-day delayed 
effectiveness period would be impracticable and contrary to the public 
interest by causing confusion among the industry, as it would change 
the regulations in the middle of a fishing year, and potentially lead 
to vessels overfishing their allocated DAS.
    Pursuant to section 305(d) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, has determined that this 
rule is consistent with the FMPs of the NE Region, other provisions of 
the Magnuson-Stevens Act, and other applicable law.
    For the reason set forth in the preamble, the expiration date of 
the temporary rule (74 FR 9770) that published on May 6, 2009, is 
extended to February 28, 2010, or until it is superseded by another 
final rule, whichever comes first.

    Dated: August 19, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-20308 Filed 8-21-09; 8:45 am]
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