[Federal Register Volume 66, Number 89 (Tuesday, May 8, 2001)]
[Rules and Regulations]
[Pages 23182-23185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11460]



[[Page 23182]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010413094-1094-01; I.D. 032101A]
RIN 0648-AP10


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic Deep-
Sea Red Crab Fishery

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

ACTION: Emergency interim rule; request for comments.

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SUMMARY:  NMFS issues this emergency interim rule to govern fishing in 
the Atlantic deep-sea red crab (Chaceon quinquedens) (red crab) 
fishery. This rule implements a total allowable catch (TAC) of 2.5 
million lb (1,134 mt) of red crab; a possession limit of 65,000 lb 
(29.5 mt) of whole red crab or its equivalent; a trap/pot limit of 600 
pots; and an incidental catch of 100 lb (45.4 kg) of whole red crab per 
fishing trip. This rule also establishes the requirements for a letter 
of authorization (LOA), for vessel reporting via an interactive voice 
response (IVR) system, and for submission of vessel trip reports (VTR) 
for the red crab fishery. The intended effect of this rule is to 
prevent or eliminate overfishing and provide immediate protection of 
the red crab stock in the previously unregulated Atlantic deep-sea red 
crab fishery in the Northeast region until a Federal fishery management 
plan (FMP) is implemented.

DATES:  This emergency interim rule is effective from May 18, 2001, 
through November 14, 2001.
     Written comments must be received no later than 5 p.m. local time 
on June 7, 2001.

ADDRESSES:  Written comments should be sent to, and copies of the 
Environmental Assessment/Regulatory Impact Review supporting this 
action may be obtained from, Patricia A. Kurkul, Regional 
Administrator, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930.
    Comments regarding the collection-of-information requirements 
contained in this emergency interim rule should be sent to the Regional 
Administrator and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA 
Desk Officer).

FOR FURTHER INFORMATION CONTACT:  E. Martin Jaffe, Fishery Policy 
Analyst, 978-281-9272.

SUPPLEMENTARY INFORMATION:

Background

    Deep-sea red crabs are typically slow growing, and major 
recruitment events are believed to occur rarely, leaving this resource 
particularly vulnerable to overfishing. Prior to March 1, 2000 (the 
``control date'' that may be used for establishing eligibility criteria 
for determining levels of access to the red crab fishery, should access 
be regulated in the future), the largest reported vessel in the red 
crab fishery was 120 ft (36.6 m) in length overall and the average hold 
capacity of vessels in the fleet was between 60,000 and 65,000 lb (27.2 
mt and 29.5 mt) of whole crab product. As of the control date, no 
vessel reportedly fished more than 600 pots, and none had the ability 
to process completely crabs on board. (``Process completely'' means 
that the harvested crabs are picked, cleaned, cooked, and frozen.) All 
but one of the five vessels in the fishery prior to the control date 
land their crabs whole and alive. The remaining vessel reportedly 
butchers the crabs on board, which means the crab is cut in half and 
the carapace removed (with a recovery rate of about 58 percent, by 
weight, of the whole crab). The principal method of fishing for these 
vessels is to steam to the fishing grounds, set and haul baited traps, 
and return to port quickly in order to ensure fresh product. Trips are 
limited in length primarily by the hold capacity of the vessel and by 
the need to keep the product fresh and, for most vessels, alive.
    In late 2000, two additional vessels reportedly entered the red 
crab fishery. Both of these vessels are larger than the rest of the 
fleet, reportedly on the order of 150 ft (45.7 m) in length overall, 
and are catcher-processor vessels with the capability of extensive 
processing (picking, cleaning, cooking and freezing) of crab product on 
board while at sea. The hold capacity of these vessels is also larger 
than that of the other vessels in the fleet--one vessel reportedly has 
a hold capacity of up to 300,000 lb (136.1 mt) and the other up to 
185,000 lb (84 mt). Each of these vessels is reported to be fishing 
similar numbers of traps/pots as the other vessels in the fleet. 
Further, in early 2001, a third new vessel reportedly entered the red 
crab fishery, and more vessels may be considering entering this 
fishery.
    The most recent information available on deep-sea red crabs and the 
red crab fishery, which is based on a 1977 assessment, indicates that 
there is a maximum sustainable yield (MSY) of approximately 5.5 million 
lb (2,495 mt) and that four to six vessels fishing at historical levels 
of capacity represent the maximum amount of harvesting effort that can 
be sustained by the resource in order not to exceed the MSY. The 
addition of up to three new vessels, with a potential for more, 
threatens not only the resource but also the viability of the existing 
fishery unless restrictive measures are put into place. While the non-
processor vessels fill their holds with whole and, in most cases, live 
crabs, the catcher-processor vessels have the capability to fill their 
holds with processed frozen crab meat and thus land an equivalent live 
weight product of 5 to 30 times higher than the non-processor vessels 
(depending on hold capacity and processing recovery rate).
    Since there were only five vessels in the fishery at the time of 
the control date, and given the evidence that harvesting capacity on 
that date was sufficient to utilize fully the available resource, 
additional harvesting capacity after the control date threatens the 
fishery. Concerns for overharvesting are increased if vessels entering 
the fishery after the control date are significantly larger in hold 
capacity and/or are capable of processing red crab at sea.
    Given an MSY for the Northeast region of 5.5 million lb (2,495 mt) 
and a hold capacity of approximately 65,000 lb (29.5 mt) of whole crab, 
each of the five vessels fishing in the red crab fishery prior to the 
March 1, 2000, control date could take a maximum of 1.3 percent of the 
MSY per trip. A catcher-processor vessel, with a hold capacity of 
300,000 lb (136.1 mt) of finished product, could take approximately 16 
to 30 percent of the MSY per trip (depending on processing recovery 
rate). Given the recent red crab landings by vessels that fished for 
red crab prior to the control date, incremental effort by those vessels 
and effort by new vessels could result in overfishing.
    In fact, even without new entrants, overfishing may be occurring. 
Preliminary reports from the industry suggest that existing vessels 
harvested approximately 7 million lb (3,175.2 mt) of red crab in 2000, 
roughly 125 percent of the MSY estimate.
    At its January 23, 2001, meeting, the New England Fishery 
Management Council (Council) approved a motion to request that the 
Secretary of Commerce (Secretary) use his authority under

[[Page 23183]]

section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) to promulgate emergency 
regulations to address the potential for a rapid increase in the 
harvesting of red crab and to halt or prevent overfishing, while 
providing immediate protection to the red crab resource as the Council 
develops an FMP for red crab.
    Section 305(c) of the Magnuson-Stevens Act authorizes the Secretary 
to implement emergency regulations or interim measures, if necessary, 
to address an emergency or overfishing, regardless of whether an FMP 
exists for such fishery. These emergency regulations may remain in 
effect for no more than 180 calendar days after the date of publication 
in the Federal Register, with a possible 180-day extension, provided 
the public has an opportunity to comment on the measures. In the case 
where emergency regulations are implemented at the request of the 
Council, an extension is justified only if the Council is actively 
preparing an FMP (or an FMP amendment or other regulations) to address 
the emergency or overfishing on a permanent basis.
    For the reasons stated above, NMFS concurs with the Council's 
determination that the current exploitation of the red crab resource, 
combined with the likelihood of immediate, significant increases in 
total exploitation, constitutes an emergency situation that presents 
significant conservation problems. Although the precise level of 
harvest is unknown, recently reported landings have been at or in 
excess of the historical MSY. With the arrival of new harvesting 
capacity and the probability that total capacity could increase 
several-fold in the next few months, there is strong justification for 
the Secretary's intervention in preventing overfishing.
    This emergency rule contains measures that, NMFS believes, will 
prevent or eliminate overfishing of the red crab stock in the short 
term in the EEZ from Cape Hatteras Light, NC, northward to the U.S.-
Canada border. This area was chosen for regulation because it 
encompasses, based on available information, the portions of the red 
crab stock currently being harvested. The measures include a TAC of 2.5 
million lb (1,134 mt) of red crab for the 180-day period of 
effectiveness for this emergency rule, which is based on an annual TAC 
of 5.0 million lb (2,268 mt); a possession limit of 65,000 lb (29.5 mt) 
of whole red crab or its equivalent; a trap/pot limit of 600 pots; and 
an incidental catch of 100 lb (45.4 kg) of whole red crab per trip. 
This rule also establishes the requirements for a LOA, for vessel 
reporting via an IVR system, and for submission of VTRs for the red 
crab fishery.
    As mentioned previously, a region-wide MSY estimate of red crab is 
approximately 5.5 million lb (2,495 mt). The 1977 red crab assessment, 
which was based on a 1974 survey conducted prior to the establishment 
of the Hague Line, included portions of Georges Bank that are now in 
Canadian waters. Since 92.4 percent of the total exploitable biomass 
abundance was in U.S. waters, an appropriate annual TAC for the area 
chosen for regulation is approximately 5 million lb (2,268 mt).
    The establishment of a 2.5-million lb (1,134-mt) TAC sets an upper 
limit on the amount of red crab available to be harvested during the 
180-day effectiveness period of these emergency regulations. When NMFS 
determines that total landings of red crab are projected to have 
reached the TAC, the directed red crab fishery will be closed and 
fishing for, and landings of, red crab in amounts greater than the 
incidental catch limit will be prohibited. NMFS has set the TAC at a 
level that will ensure, to the extent possible, that overfishing does 
not occur.
    This action establishes a 65,000-lb (29.5-mt) possession limit, 
which is the average hold capacity of the non-processing red crab 
vessels that fished historically, at least 1 year prior to and 
including the control date of March 1, 2000. The possession limit 
applies to landings of whole or processed red crabs equivalent to 
65,000 lb (29.5 mt) of whole crabs. The ratio of whole crab weight to 
finished product weight for crab parts, other than whole crabs or meat 
only, is 1.72 to 1. The ratio of whole crab weight to finished product 
weight for crabs that have been picked, cleaned, cooked, and frozen 
(that is, meat only) is 4 to 1. Vessels that land whole crabs and that 
have hold capacities of approximately 65,000 lb (29.5 mt) should be 
able to continue fishing at or near their historical levels. Vessels 
with significantly larger hold capacities than 65,000 lb (29.5 mt) will 
be able to participate in the fishery but will likely be constrained in 
their ability to fish efficiently for red crab. Setting the trip limit 
at 65,000 lb (29.5 mt) is intended to help prevent a derby-type fishery 
and is intended to allow the greatest number of vessels with a recent 
history in the fishery to continue to fish in a safer, more economical 
manner, while not expressly precluding red crab fishing by any vessel 
that chooses to fish under the emergency provisions. The transferring 
of red crab at sea, either whole or processed, is prohibited pursuant 
to Sec. 648.265(b). Purchasing, possessing or receiving for a 
commercial purpose, more than 100 lb (45.4 kg) of whole red crab, or 
its equivalent as specified at Sec. 648.265(a), caught by a vessel in 
the EEZ that has not been issued a valid LOA under this subpart, is 
also prohibited pursuant to Sec. 648.265(c).
    This action also establishes a trap/pot limit of 600 pots. No 
vessel reportedly fished more than 600 pots as of the control date and 
this pot limit is not expected to be a restriction for vessels 
currently fishing for red crab, including the newly entered vessels. 
This pot limit could, however, serve to prevent any vessel from 
increasing the number of pots it fishes, in the face of trip limits. 
Therefore, with a vessel spreading its effort out and catching its trip 
limit over several days, rather than sooner, the fishery is prevented 
from being converted into a derby-type fishery.
    For non-red crab directed trips, data from 1998 and 1999 show that 
the median catch was 115 lb (52.2 kg) per trip. An incidental catch 
limit of 100 lb (45.4 kg) of whole red crab per fishing trip, or its 
equivalent as discussed above, is established by this emergency action 
for vessels fishing without a LOA in order to allow historical 
incidental catches to continue. While NMFS' databases show a total 
incidental catch of red crab of 13,594 lb (6,166 kg) in 1998 and of 
10,852 lb (4,922.5 kg) in 1999, this is very likely to be an 
underestimate, given the uncertainty in the data. Nevertheless, the 
total allowed incidental catch, which is not counted against the TAC, 
is expected to be insignificant and should not undermine the benefits 
of having a TAC.
    In conjunction with the aforementioned measures, vessels intending 
to fish for or land more than the allowed incidental catch limit for 
red crab are required to obtain an LOA issued by the Administrator, 
Northeast Region, NMFS, by requesting one, in writing, from the 
Northeast Region Permit Office (see ADDRESSES) or by calling the Permit 
Office at 978-281-9370.
    To allow for monitoring of the TAC, vessels that obtain an LOA are 
required to report their red crab catch landings via an IVR system (the 
IVR reporting system used to monitor harvest levels for certain species 
in the fisheries of the Northeast) upon returning to port for each trip 
until the expiration of these emergency regulations or until such time 
that the TAC has been reached and the fishery closed, whichever comes 
first.
    To enable the gathering of data for the fishery that are necessary 
for the

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development of a Red Crab FMP, vessels that obtain an LOA are required 
to file a VTR, consistent with these emergency regulations, for the 
duration of these emergency regulations or until such time that the TAC 
has been reached and the fishery closed, whichever comes first.
    The red crab fishery falls under the Marine Mammal Protection Act 
Category I Lobster Trap/Pot fishery. Therefore, vessels in this fishery 
are required to comply with the applicable gear restrictions for that 
fishery, including a required weak link at the buoy that breaks away 
knotless at 3,780 lb (1,714.6 kg) and a requirement for marking of gear 
as specified at Sec. 229.32. Also, red crab fishing gear, fished in 200 
fathoms (365.8 m) or less by a vessel issued a limited access lobster 
permit under Sec. 697.4(a), must comply with the trap tagging 
requirements specified at Sec. 697.19.

Classification

    The AA finds that the need to provide immediate protection to the 
Atlantic deep-sea red crab stock to protect it from overfishing 
constitutes good cause to waive the requirement to provide notice and 
the opportunity for public comment, pursuant to authority set forth at 
5 U.S.C. 553 (b)(B), as such procedures would be contrary to the public 
interest. Similarly, the need to implement these measures in a timely 
manner to protect the stock from overfishing constitutes good cause, 
under authority contained in 5 U.S.C. 553(d)(3), to partially waive the 
30-day delay in effective date otherwise required by 5 U.S.C. 553(d). 
The reason for the partial waiver is to allow vessel owners 10 days to 
obtain the necessary vessel LOA and fishing logs.
    This emergency rule has been determined to be not significant for 
the purposes of E.O. 12866.
    This rule is exempt from the analytical requirements of the 
Regulatory Flexibility Act because no public comments are required 
under 5 U.S.C. 553 et seq. and no other law mandates the application of 
such requirements.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection-of-
information displays a currently valid OMB control number.
    This rule contains four collection-of-information requirements 
subject to the PRA. The collection of this information has been 
approved by OMB, and the OMB control numbers and the estimated time for 
a response are as follows:
    Letters of authorization, OMB control number 0648-0202 (5 minutes/
response).
    Observer deployment, OMB control number 0648-0202 (2 minutes/
response).
    Vessel trip reports, OMB control number 0648-0212 (5 minutes/
response).
    IVR system reports, OMB control number 0648-0212 (4 minutes/
response).
    The aforementioned response estimates include the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates, or any other aspect of the data requirements, including 
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Vessel permits, Reporting and recordkeeping 
requirements.

    Dated: May 2, 2001.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out 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.

    2. Subpart M is added to read as follows:

Subpart M--Emergency Measures for the Atlantic Deep-Sea Red Crab 
Fishery

Sec.
648.260    Purpose and scope.
648.261    Definitions.
648.262    Vessel letters of authorization (LOA).
648.263   Recordkeeping and reporting requirements.
648.264    Closure.
648.265    Possession and landing limits.
648.266    Trap/pot limits.
648.267   Incidental catch.
648.268    Prohibitions.

Subpart M--Emergency Measures for the Atlantic Deep-Sea Red Crab 
Fishery


Sec. 648.260   Purpose and scope.

    These regulations implement emergency measures, under the authority 
of the Magnuson-Stevens Act, to manage the red crab fishery in the EEZ 
in U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. Lat., 
the latitude of Cape Hatteras Light, NC, northward to the U.S.-Canada 
border.


Sec. 648.261  Definitions.

    In addition to the definitions in the Magnuson-Stevens Act, 50 CFR 
part 600, and in Sec. 648.2, the terms in this subpart have the 
following meaning:
    Red crab means Chaceon quinquedens.
    Trap/pot  means any structure or other device, other than a net, 
that is placed, or designed to be placed, on the ocean bottom and is 
designed for, or is capable of, catching red crabs.


Sec. 648.262   Vessel letters of authorization (LOA).

    (a) Any vessel of the United States must have been issued and have 
on board a valid LOA from the Northeast Regional Administrator to fish 
for, catch, possess, transport, land, sell, trade, barter, or process 
at sea more than 100 lb (45.4 kg) of red crab, or its equivalent as 
specified at Sec. 648.265(a), per fishing trip in or from the EEZ from 
35 deg.15.3' N. Lat., the latitude of Cape Hatteras Light, NC, 
northward to the U.S.-Canada border.
    (b) An LOA, once issued, shall be effective until the TAC has been 
reached and the fishery has been closed as specified under 
Sec. 648.264.
    (c) An LOA, for the purposes of this subpart, may be obtained by 
telephone or written request to the Northeast Region Permit Office.


Sec. 648.263  Recordkeeping and reporting requirements.

    (a) The owner or operator of a vessel issued a valid LOA under this 
subpart must comply with the recordkeeping and reporting requirements 
prescribed in this subpart, unless the TAC has been reached and the 
fishery has been closed as specified in Sec. 648.264. The owner or 
operator of a vessel that has been issued a valid LOA under this 
subpart must report red crab landings per fishing trip via an IVR 
system within 24 hours after returning to port and offloading. The IVR 
report does not exempt the owner or operator from any other applicable 
reporting requirements of this part and shall include at least the 
following information, and any other information required by the 
Regional Administrator: Vessel identification, pounds of red crab 
landed, and pounds of red crab discarded at sea, in accordance with the 
conversion factor specified in Sec. 648.265(a), if applicable.
    (b) The owner or operator of a vessel issued a valid LOA under this 
subpart

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must maintain on board the vessel, and submit to the Northeast Regional 
Administrator, an accurate fishing log report for each fishing trip, on 
forms supplied by or approved by the Northeast Regional Administrator. 
Log reports must be filled out before landing any red crab or its 
equivalent. Information in log reports must be provided in accordance 
with Sec. 648.7(b)(1)(i). Fishing vessel log reports, including 
negative fishing reports, must be postmarked or received by the 
Northeast Regional Administrator within 15 days after the end of the 
reporting month. Each vessel owner will be sent forms and instructions, 
including the address to which reports are to be submitted, along with 
the LOA issued under this subpart. This log report does not exempt the 
owner or operator from other applicable reporting requirements of this 
part.


Sec. 648.264   Closure.

    NMFS shall prohibit any further fishing for, catching, landing, or 
processing at sea of red crab, in a fishing period for which NMFS has 
established a TAC, other than incidental catch as specified at 
Sec. 648.267, as of the date NMFS determines that the total landings of 
red crab will reach or exceed that TAC. NMFS shall publish notification 
of this prohibition in the Federal Register, without further 
opportunity for public comment.


Sec. 648.265  Possession and landing limits.

    (a) A vessel or operator of a vessel that has been issued a valid 
LOA under this subpart may fish for, catch, possess, transport, land, 
sell, trade, barter, or process at sea up to 65,000 lb (29.5 mt) of 
whole red crab (including culls) or its equivalent, per fishing trip. 
For red crab meat-only, the equivalent weight of whole red crab is the 
weight of red crab meat multiplied by 4. For red crab parts other than 
whole or meat-only, the equivalent weight of whole red crab is the 
weight of red crab parts multiplied by 1.72.
    (b) A vessel may not transfer at sea, either directly or 
indirectly, or attempt to transfer at sea to any vessel, any red crab, 
or its equivalent, taken in or from the EEZ.
    (c) No person may purchase, possess, or receive for a commercial 
purpose, more than 100 lb (45.4 kg) of whole red crab, or its 
equivalent as specified at Sec. 648.265(a), caught in the EEZ by a 
vessel that has not been issued a valid LOA under this subpart.


Sec. 648.266  Trap/pot limits.

    A vessel or operator of a vessel may possess, haul, harvest red 
crab from, or carry on board a vessel, up to a total of 600 traps/pots 
when fishing for, catching, or landing red crab.


Sec. 648.267   Incidental catch.

    Any vessel or operator of a vessel that has not been issued a valid 
LOA under this subpart, or a vessel or operator of a vessel that has 
been issued a valid LOA under this subpart and the prohibition 
specified at Sec. 648.264 takes effect, is authorized to possess and 
land no more than 100 lb (45.4 kg) of whole red crab, or its 
equivalent, per trip.


Sec. 648.268  Prohibitions.

    (a) In addition to the general prohibitions specified in 
Sec. 600.725 of this chapter and in Sec. 648.14, it is unlawful for any 
person to do any of the following:
    (1) Fish for, catch, possess, transport, land, sell, trade, barter 
or process at sea more than 100 lb (45.4 kg) of whole red crab, or its 
equivalent as specified at Sec. 648.265(a), per fishing trip, in or 
from the EEZ from 35 deg.15.3' N. Lat., the latitude of Cape Hatteras 
Light, NC, northward to the U.S.-Canada border, unless in possession of 
a valid LOA issued by the Northeast Regional Administrator under this 
subpart.
    (2) Fail to comply with the recordkeeping and reporting 
requirements of Sec. 648.263.
    (3) Fish for, catch, possess, transport, land, sell, trade, barter 
or process at sea red crab in excess of a landing limit specified in 
Sec. 648.265.
    (4) Possess, haul, harvest red crab from, or carry on board a 
vessel, more than a total of 600 traps/pots when fishing for, catching, 
or landing red crab as specified at Sec. 648.266.
    (5) Transfer at sea, either directly or indirectly, or attempt to 
transfer at sea to any vessel, any red crab, or its equivalent as 
specified at Sec. 648.265(a), taken in or from the EEZ.
    (6) Purchase, possess, or receive for a commercial purpose, more 
than the incidental catch level specified in Sec. 648.267 of red crab 
caught in the EEZ from 35 deg.15.3' N. Lat., the latitude of Cape 
Hatteras Light, NC, northward to the U.S.-Canada border by a vessel 
that has not been issued a valid LOA under this subpart.
    (b) [Reserved]
[FR Doc. 01-11460 Filed 5-2-01; 4:57 pm]
BILLING CODE 3510-22-S