2010-20077. Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab Fisheries; 2010 Atlantic Deep-Sea Red Crab Specifications In-season Adjustment

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This rule adjusts the target total allowable catch (TAC) and corresponding fleet days-at-sea (DAS) allocation for the Atlantic deep-sea red crab fishery that were implemented in May 2010. This adjustment is consistent with the most recent recommendation by the New England Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) and the implementing regulations for the Atlantic Deep-Sea Red Crab Fishery Management Plan (FMP) allowing NMFS to make an in-season adjustment to the specifications, after consulting with the Council. In May 2010, NMFS finalized the fishing year (FY) 2010 specifications for the red crab fishery, including a target TAC and a fleet-wide DAS allocation.

DATES:

This rule is effective on September 13, 2010.

ADDRESSES:

Copies of the specifications document, including the Supplemental Environmental Assessment and Supplemental Regulatory Flexibility Analysis and other supporting documents for the in-season adjustment, are available from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Moira Kelly, Fishery Policy Analyst, [phone].

SUPPLEMENTARY INFORMATION:

Background

For FY 2010, the Council was required by the FMP to establish specifications for the red crab fishery consistent with the best available scientific information. In September 2009, the Council's SSC recommended a maximum sustainable yield (MSY) for red crab within the range 3.75-4.19 million lb (1,700-1,900 mt), which was consistent with the most recent stock assessment (conducted by the Northeast Fisheries Science Center's 2008 Data Poor Stocks Working Group), and recommended that the interim acceptable biological catch (ABC) be set commensurate with recent catch. At the time, the SSC determined recent catch to be the amount of red crab landed in FY 2007, which was 2.83 million lb (1,284 mt). However, the landings in FY 2007 were the lowest since the implementation of the FMP in 2002, and so, during the Council's review of the SSC's recommendation at its September and November 2009 meetings, the Council requested the SSC reconsider its recommendations.

The SSC met on March 16-17, 2010, and determined that the interim ABC for red crab should be revised. The SSC has determined that the model results from the December 2008 Data Poor Stocks Working Group are an underestimate of MSY, but could not determine by how much, and did not recommend an estimate of MSY. The SSC now recommends that the ABC for red crab be set equal to long-term average landings (3.91 million lb; 1,775 mt, based on data for 1974-2008). The SSC considers this level of landings to be sustainable and comfortably below the actual, but undetermined, MSY level.

Because NMFS does not have the regulatory authority to establish a target TAC greater than that recommended by the Council, the initial final rule (75 FR 27219, May 14, 2010) set the specifications equal to the Council's November 2009 recommendation for a target TAC of 3.56 million lb (1,615 mt) and a corresponding allocation of 582 fleet DAS. However, the regulations for red crab allow for an in-season adjustment of the specifications, as set forth in § 648.260(a)(3), after consultation with the Council and an opportunity for additional public comment. The Council met on April 28, 2010, and recommended adjusting the red crab specifications in accordance with the SSC's revised recommended catch level of 3.91 million lb (1,775 mt). A proposed rule was published on June 22, 2010 (75 FR 35435), requesting public comment on the revised recommended catch level.

Comments and Responses

No comments on the proposed rule were received during the comment period.

Final Specifications

This final rule adopts the SSC's revised recommended catch level as the adjusted target TAC for the FY 2010 red crab fishery. This would result in a target TAC of 3.91 million lb (1,775 mt). Using the most recent calculation of average landings-per-DAS charged (5,882 lb/DAS (2,668 kg/DAS) charged from FY 2005-2009), the corresponding fleet DAS allocation is 665 DAS.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Atlantic Deep-Sea Red Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS's responses to those comments, and a summary of the analyses completed to support the action. A copy of the EA/Regulatory Impact Review/IRFA is available from the Regional Administrator (see ADDRESSES).

The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

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

Summary of Significant Issues Raised in Public Comments

No public comments were received on the IFRA or the economic impacts of the rule more generally during the comment period on the proposed rule.

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

There are no large entities that participate in this fishery, as defined in section 601 of the RFA; therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery are not readily available, and individual vessel profitability cannot be determined directly; therefore, changes in gross revenues were used as a proxy for profitability. In the absence of quantitative data, qualitative analyses were conducted.

The participants in the commercial sector are the owners of vessels issued limited access red crab vessel permits. There are five limited access red crab vessel permits, although only three vessels participated in the fishery in FY 2009.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

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

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

Specification of the target TAC and corresponding fleet DAS allocation is constrained by the conservation objectives of the FMP, under the authority of the Magnuson-Stevens Act. The target TAC contained in this final rule is equal to the long-term average landings of the fleet, and roughly 25 percent higher than the FY 2009 commercial red crab landings. Whereas a limited market has been responsible for the recent shortfall in landings compared to the target TAC, red crab vessel owners have invested heavily in a new processing plant in New Bedford, MA, and have developed new marketing outlets with hopes to increase demand for their product. Further, this rule implements a target TAC and DAS allocation that is consistent with both the FMP and the best available science.

The impacts on revenues associated with the target TAC were analyzed and are expected to be minimal. Because the 2010 target TAC being implemented in this final rule is greater than the FY 2009 target TAC, and the target TAC originally recommended by the Council, no negative economic impacts are expected as a result of this final rule.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the Atlantic red crab fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

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

Dated: August 10, 2010.

Eric C. Schwaab,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

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.

2. In § 648.260, paragraph (a)(1) is revised to read as follows:

§ 648.260

Specifications.

(a) * * *

(1) Target total allowable catch. The target TAC for each fishing year will be 3.910 million lb (1,775 mt), unless modified pursuant to this paragraph.

3. In § 648.262, paragraph (b)(2) is revised to read as follows:

§ 648.262

Effort-control program for red crab limited access vessels.

(b) * * *

(2) For fishing year 2010 and thereafter. Each limited access permit holder shall be allocated 133 DAS unless one or more vessels declares out of the fishery consistent with § 648.4(a)(13)(i)(B)(2) or the TAC is adjusted consistent with § 648.260.