[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Rules and Regulations]
[Pages 9770-9773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4795]


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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

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: NMFS is implementing 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 new 
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. The 
actions of this final rule are 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.

DATES: This rule is effective April 6, 2009, through September 2, 2009.

[[Page 9771]]

Comments must be received by 5 p.m. local time, on April 6, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AX61, by any 
one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on Deep-Sea Red Crab Emergency Action.''
    <bullet> Fax: (978) 281-9135. Send the fax to the attention of the 
Sustainable Fisheries Division. Include ``Comments on Deep-Sea Red Crab 
Emergency Action'' prominently on the fax.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the Environmental Assessment (EA) and Regulatory Impact 
Review (RIR) prepared for this rule are available from the Regional 
Administrator at the above address.

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

SUPPLEMENTARY INFORMATION: The Red Crab FMP was established on October 
21, 2002 (67 FR 63222), and was intended to manage the red crab fishery 
and prevent unsustainable fishing of the red crab resource. The 
management unit specified in the FMP includes red crab (Chaceon 
quinquedens) in U.S. waters of the Atlantic Ocean from 35[deg] 15.3' N. 
lat. (the latitude of Cape Hatteras Light, North Carolina) northward to 
the U.S./Canada border. The Red Crab FMP was adjusted once, by 
Framework Adjustment (FW) 1 (August 31, 2005, 70 FR 44066.) FW 1 
established a multi-year specifications process and established the 
specifications through fishing year (FY) 2007. The specifications 
established for FY 2007 were continued without action into FY 2008, as 
allowed under the regulations, because there was no new information 
that would have indicated a change was required.
    In the fall of 2008, NMFS' Northeast Fisheries Science Center 
convened a panel of stock assessment biologists and fishery managers, 
known as the Data Poor Stocks Working Group, to evaluate the biological 
reference points and status of several fishery stocks that have proven 
challenging to assess using traditional stock assessment methods. The 
results and recommendations of the Working Group were peer-reviewed by 
a panel of outside scientists composed of relevant experts primarily 
from the Scientific and Statistical Committees of the Mid-Atlantic and 
New England Fishery Management Councils (Review Panel). One of the 
stocks considered by the Working Group and Review Panel was Atlantic 
deep-sea red crab, a deep-water crustacean that lives off the 
continental shelf along the east coast of the United States and that 
supports a small but valuable fishery. The fishery is managed under the 
Red Crab FMP, as developed by the New England Fishery Management 
Council (Council) and implemented in 2002. The FMP established a 
limited access permit program, per trip possession limits, gear 
requirements, and a DAS program for the limited access permit vessels, 
among other measures. DAS are assigned to each limited access permit 
holder based on a fleet-wide allocation of DAS that is calculated to 
achieve, but not exceed, the target TAC. Every year since the FMP was 
implemented, the target TAC has been 5.928 million lb (2,688 mt), and 
the limited access fleet has been allocated 780 DAS, divided evenly 
among the limited access permit vessels.
    Fishery-independent data on the deep-sea red crab are sparse, and 
only two surveys have been conducted on the stock since the early 
1970's, one in 1974 and another during 2003-2005. Little is known about 
the biology and ecology of the species, and quantitative estimates of 
life history traits are almost entirely lacking. Fishery-dependent 
data, particularly for the years prior to implementation of the FMP in 
2002, are somewhat unreliable. The Working Group considered all 
available information on the species and its fishery, and presented its 
findings and recommendations to the Review Panel. Although the Review 
Panel was not able to recommend new biological reference points for the 
stock due to existing data limitations, it noted substantial 
uncertainty in all reference point estimates and recommended 
consideration of additional fishery-independent survey work and several 
avenues of research that would be useful for management. Most 
significant to the subject action, the Review Panel agreed with the 
Working Group that the estimate of MSY developed for the original FMP 
is no longer reliable as a foundation for setting biological reference 
points. The Review Panel concluded that an MSY in the range of 3.75 
million-4.19 million lb (1,700-1,900 mt), instead of the estimate of 
6.24 million lb (2,830 mt) in the FMP, represents the best available 
science for the stock. This is a 33- to 40-percent reduction in MSY 
from the original FMP.
    As noted above, the primary constraint on the directed, limited 
access red crab fishery is a DAS program that is based on the annual 
target TAC, currently set at 5.928 million lb (2,689 mt). The FMP 
specifies that the target TAC is calculated as 95 percent of MSY, so a 
reduction in MSY would necessitate a reduction in the annual target 
TAC, which would then result in a reduction in the fleet DAS 
allocation. Based on the range for MSY recommended by the Working Group 
and Review Panel, the annual target TAC for the fishery needs to be 
reduced to between 3.56 million lb (1,615 mt) and 3.98 million lb 
(1,805 mt). Such a reduction in the target TAC would require that the 
annual DAS allocated to the fleet also be reduced from 780 DAS to 
between 582 and 651 DAS.\1\
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    \1\ Rather than a simple proportional reduction in the DAS 
allocation (i.e., a 33- to 40-percent reduction from the current 780 
DAS), the proposed DAS range is based on updated average landings 
per DAS in the red crab fishery for the fishing years 2005-2008.
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    The regulations governing the red crab fishery, found at subpart M 
of 50 CFR part 648, stipulate that ``The target TAC for each fishing 
year will be 5.928 million lb (2,689 mt, unless modified pursuant to 
this paragraph,'' and that ``Each limited access permit holder shall be 
allocated 156 DAS'' (780 DAS divided between the five limited access 
permit holders) ``unless . . . the TAC is adjusted.'' The Red Crab FMP 
established a fishing year that begins on March 1 of each year, through 
the last day of February. Because the results of the Data Poor Stocks 
Workshop and peer review were not available until January 20, 2009, and 
the fishing year started on March 1, 2009, there was insufficient time 
for the Council to consider this new scientific information and prepare 
and submit revised specifications for the 2009 fishing year. Also, 
because a 33- to 40-percent reduction in the target TAC, with a similar 
reduction in the DAS allocation, is required in order to bring the 
management measures into compliance

[[Page 9772]]

with the best available science on the red crab stock and to minimize 
the risk that unsustainable fishing will occur, NMFS is implementing 
emergency measures under section 305(c) of the Magnuson-Stevens Act.
    The Council intends to incorporate the results of the Data Poor 
Stocks Workshop and peer review into the development of specifications 
for the 2010 fishing year and an amendment to the FMP intended to 
address the new annual catch limit and accountability measure 
requirements of the reauthorized Magnuson-Stevens Act. For the 
intervening year, NMFS is implementing the following as emergency 
measures: (1) A reduction in the 2009 target TAC 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 to 116 DAS. 
A target TAC of 3.56 million lb (1,615 mt) represents 95 percent of the 
lower bound of the MSY range recommended by the Working Group and 
Review Panel. With no guidance from the Review Panel other than the 
substantial degree of uncertainty noted regarding the available data, 
NMFS intends to set specifications in a precautionary manner until the 
Council can more fully consider the implications of this new scientific 
information. An initial per vessel DAS allocation of 116 DAS represents 
a fleet allocation of 582 DAS, divided by the five current limited 
access permits. There is a provision in the Red Crab FMP that if one or 
more limited access permit holders formally declares out of the 
directed red crab fishery for an entire fishing year, that the DAS 
initially allocated to that permit are to be distributed equally to the 
remaining permit holders. 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. The resulting DAS allocation will be 146 DAS for 
each of the remaining four limited access permit holders. NMFS is 
implementing no other changes to the management measures governing the 
red crab fishery at this time.
    A revised target TAC of 3.56 million lb (1,615 mt) represents a 40-
percent reduction in the target TAC from that available to the fishery 
in fishing year 2008, and the revised fleet DAS allocation of 582 DAS 
represents a 25.3-percent reduction in allocated DAS. The FMP provides 
that DAS allocations are to be updated through the specifications 
process by using the most recent available data to determine the pounds 
of red crab landed per DAS, on average, and then dividing the annual 
target TAC by this amount. Using updated landings and DAS usage 
information from fishing years 2005-2008, the average landings of red 
crab by the limited access fleet is just over 6,100 lb/DAS (2,767 kg/
DAS). This is a decrease from the nearly 7,600 lb/DAS (3,447 kg/DAS) 
used in the FMP and subsequently in the specifications process, and 
represents a decline in catch-per-unit-effort (CPUE) that is intended 
to be addressed in the DAS allocation. Reasons for such a decline in 
CPUE may include a decrease in the exploitable biomass of the red crab 
resource, inter-annual variability in the availability of red crabs to 
the fishery, an increase in vessel search time, an increase in distance 
traveled from port to the fishing grounds, or a decline in trip 
duration. Failing to account for this decline in CPUE in setting the 
DAS allocation under this rule (i.e., maintaining the same 7,600 lb/DAS 
(3,447 kg/DAS) to determine the DAS allocation for the revised target 
TAC) would result in fewer DAS allocated to the fleet (468 DAS instead 
of 582 DAS). Given the decline in CPUE evidenced by the decrease in 
landings per DAS, a lower fleet DAS allocation would likely result in 
the fleet being unable to attain the target TAC.
    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). The situation 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) presents 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) can be 
addressed through these emergency regulations 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.

Classification

    The Acting Assistant Administrator for Fisheries, NOAA (AA), finds 
good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest. This emergency action responds to the 
requirements of the Magnuson-Stevens Act to prevent unsustainable 
fishing and ensure that conservation and management measures are based 
on the best available scientific information.
    The results of the Data Poor Stocks Working Group and Review Panel 
assessment of the red crab stock clearly indicate that the estimate of 
MSY used to establish a target TAC of 5.928 million lb (2,689 mt) does 
not represent the best available scientific information, and that a 
target TAC of between 3.56 million lb (1,615 mt) and 3.98 million lb 
(1,805 mt), with the appropriate reductions in DAS, is necessary to 
ensure that unsustainable fishing does not occur on the resource. NMFS 
must take every action possible to stop unsustainable fishing and 
prevent it from occurring in the fishing year that began on March 1, 
2009.
    Until this rule is effective, commercial fishermen are authorized 
to fish substantially more DAS, with a significantly higher target TAC, 
than what the resource can support according to the best available 
scientific information. If effectiveness of the rule is delayed in 
order to allow prior notice and comment, the existing management 
measures that were designed to attain a higher TAC would be 
inconsistent with the revised estimate of MSY for the stock. Waiver of 
the notice-and-comment rulemaking period will serve the public and the 
resource by ensuring measures sufficient to prevent unsustainable 
fishing are implemented in a timely fashion for the 2009 fishery that 
began on March 1, 2009.
    NMFS did not initiate the emergency action earlier because the 
report of the Data Poor Stocks Working Group and Review Panel was not 
finalized and released until January 20, 2009, only 39 days before the 
start of the 2009 fishing year.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
U.S.C. 553 or any other law.


[[Page 9773]]


    Dated: March 3, 2009
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

0
For the reasons stated in the preamble, 50 CFR part 648 is 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.

0
2. In Sec.  648.260, paragraph (a)(1) is suspended and paragraph (a)(4) 
is added to read as follows:


Sec.  648.260  Specifications.

    (a) * * *
    (4) Target total allowable catch. The target TAC for fishing year 
2009 will be 3.560 million lb (1,615 mt), unless modified pursuant to 
this paragraph.
* * * * *

0
3. In Sec.  648.262, paragraph (b)(2) is suspended and paragraph (b)(7) 
is added to read as follows:


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

    (b) * * *
    (7) For fishing year 2009. 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) or the TAC is 
adjusted consistent with Sec.  648.260.
[FR Doc. E9-4795 Filed 3-5-09; 8:45 am]
BILLING CODE 3510-22-S