Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab Fishery; Framework Adjustment 1 to the Atlantic Deep-Sea Red Crab Fishery Management Plan

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues final regulations to implement Framework Adjustment 1 to the Atlantic Deep-Sea Red Crab (Red Crab) Fishery Management Plan (FMP). This final rule modifies the existing annual review and specification process by allowing specifications to be set for up to 3 years at a time, and continues the current target total allowable catch (TAC) of 5.928 million lb (2.69 million kg) and fleet days-at-sea (DAS) of 780 fleet DAS for fishing year (FY) 2006 and FY2007. The purpose of this action is to conserve and manage the red crab resource, reduce the staff resources necessary to effectively manage this fishery, and provide consistency and predictability to the industry.

DATES:

This rule is effective August 31, 2005.

ADDRESSES:

Copies of supporting documents, including the Environmental Assessment (EA), Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and Stock Assessment and Fishery Evaluation (SAFE) Report, are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov . The Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public comments and responses contained in this final rule, and the summary of impacts and alternatives contained in this final rule.

FOR FURTHER INFORMATION CONTACT:

E. Martin Jaffe, Fishery Policy Analyst, (978) 281-9272.

SUPPLEMENTARY INFORMATION:

This final rule implements measures contained in Framework Adjustment 1 to the FMP (Framework 1) that modify the existing annual review and specifications process by allowing specifications to be set for up to 3 years at a time, and continues the current target total allowable catch (TAC) of 5.928 million lb (2.69 million kg) and 780 fleet DAS for FY2006 and FY2007. Details concerning the justification for and development of Framework 1 and the implementing regulations were provided in the preamble to the proposed rule (70 FR 29265, May 20, 2005) and are not repeated here.

Multi-Year Specifications Process

The Council identified 3 years as an appropriate length of time to reduce the administrative burden associated with an annual review cycle without increasing the risk of over-harvesting the red crab resource. The appropriate environmental and regulatory reviews required under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the National Environmental Policy Act (NEPA), and other applicable laws will be completed during the year in which 3-year specifications are set. The Red Crab Plan Development Team (PDT) will complete an updated SAFE Report every 3 years, and recommend specifications for up to 3 of the following fishing years, and will continue to evaluate the red crab stock and fishery status annually. The annual evaluation will focus on the most recent fishery-dependent information including, but not limited to, DAS used and red crab landings. More comprehensive analyses will be conducted in the SAFE Report every 3 years. The Council retains the flexibility to set red crab specifications for less than 3 years based on new information and/or recommendations from the PDT.

Multi-year specifications provide the industry with greater regulatory consistency and predictability, and simplifies the process by reducing the frequency of Council decision-making and NMFS rulemaking. However, the maximum 3-year specification process does not prevent the Council from changing specifications during the interim years, if information obtained during the annual review indicates that the red crab specifications warrant a change, e.g., to comply fully with the Magnuson-Stevens Act.

This action is not expected to have any substantial direct social or economic impact on the red crab fishery. All potential impacts on the resources associated with this fishery will derive from the additional level of risk to these resources that could occur if the specifications are set at too high a level. If specifications are set too high, then there could be a greater risk of overfishing. However, the annual review required under this action provides the opportunity for the Council to adjust the out-year specifications, if new information indicates that the out-year specifications were set at an inappropriate level.

FY2006 and FY2007 Specifications

For FY2006 and FY2007, this action continues the current (FY2005) TAC of 5.928 million lb (2.69 million kg) and 780 fleet DAS. Because the small fishing fleet has neither exceeded an annual TAC nor used all of its allocated DAS since implementation of the FMP, landings are not expected to exceed established amounts.

The measures implemented under the FMP are expected to continue to protect the resource from overexploitation and maintain a sustainable fishery. Because this action maintains the status quo, it is expected to have the same effect as previously analyzed actions.

Because the FMP is managed under a target TAC, rather than a hard TAC requiring the closing of the fishery when the TAC is reached, there is no direct mechanism to prevent the fishery from exceeding the TAC; however, the DAS management program implemented under the FMP was designed to constrain red crab fishing effort to a level consistent with, or less than that which would allow the resource to produce maximum sustainable yield, while still providing sufficient opportunity to harvest the target TAC. Therefore, as DAS are adjusted, the level of potential red crab harvest is expected to adjust accordingly, assuming a constant harvest rate per day-at-sea.

In terms of the biological impacts on other non-target species and the ecosystem, based on analysis in the FMP/EIS, it is unlikely that any of the alternatives in the EA/RIR/IRFA would have an impact. There is very little known about the interactions of the deep-sea red crab with other species and their associated communities. The FMP explains that initial reports from industry members indicate that there is very little, if any, bycatch of other species in the directed red crab fishery. According to the recent SAFE Report (October 2004), there are no records of observed red crab trips in the observer database, and the trips that are recorded in the Vessel Trip Report (VTR) database have very little bycatch information. The FMP did identify that the bycatch of red crab in other fisheries may be a more substantial issue. However, the bycatch of red crab in other fisheries is not pertinent to this action.

Comments and Responses

During the comment period for the proposed rule (70 FR 29265, May 20, 2005), which ended June 20, 2005, two e-mails with comments were received from the same commenter.

Comment: The commenter is opposed to a multi-year time frame and stated that the stock conditions change annually, and that a multi-year time frame lends itself to less accurate setting of quotas.

Response: The PDT will continue to undertake an annual evaluation of the red crab stock and fishery status. The multi-year specification process does not prevent the Council from setting specifications during the interim years, if information obtained during the annual review indicates that the red crab specifications warrant a change.

Comment: The commenter stated that the stock is overfished and that the quota should be cut by 50 percent this year, and by 10 percent each year thereafter.

Response: NMFS determined that the stock is not overfished. The commenter gave no specific rationale for the suggestion that the TAC and fleet DAS be reduced from what was proposed. The reasons presented by the Council and NMFS for implementing these specifications are discussed in the preambles to the proposed rule and this final rule, and are sufficiently analyzed within the Framework 1 document. These specifications were developed based on the best scientific data available at the time, in accordance with the requirements of the Magnuson-Stevens Act. There is no known scientific basis for reducing the target TAC and fleet DAS allocation to the levels suggested by the commenter.

Comment: The commenter suggested establishment of marine sanctuaries.

Response: While NMFS acknowledges the importance of the general issues raised by the commenter, Framework 1 did not consider or recommend marine sanctuaries in this fishery, nor are the establishment of marine sanctuaries in this fishery called for under applicable law.

Changes from the Proposed Rule (70 FR 29265, May 20, 2005)

Minor editorial changes were made from the proposed rule to the final rule to clarify the intent of, and improve the readability of, the regulatory text.

Classification

The Administrator, Northeast Region, NMFS, determined that Framework 1 is necessary for the conservation and management of the red crab fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

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

NMFS prepared a FRFA, which incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the IRFA is available from the Council (see ADDRESSES).

The preamble to the proposed rule (70 FR 29265, May 20, 2005) 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

This rule is necessary to modify the existing annual review and specification process to allow specifications to be set for up to 3 years in advance, and establishes the fishery specifications for FY2006 and FY2007. The purpose of this rule is to conserve and manage the red crab resource, reduce the staff resources necessary to effectively manage this fishery, and provide consistency and predictability to the industry. A full description of the reasons why this action is being considered, and the objectives and legal basis for this action, 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 comments related to the economic analyses in the IRFA or the economic impacts of the rule generally were received. No changes to the proposed rule were made as a result of public comments. For a summary of the comments received, and NMFS's responses to them, see “Comments and Responses.”

Description and Estimate of Number of Small Entities to Which the Rule Will Apply

According to the Small Business Administration standards, any fish harvesting or hatchery business is a small entity if it is independently owned and operated and not dominant in its field of operations, and if it has annual receipts of not in excess of $3.5 million. There are five vessels with limited access permits in this fishery, and all of them meet the criteria for small entities; therefore, there is no disproportionate effect between large and small entities. All the alternatives and analyses contained in Framework 1 necessarily reflect on these five vessels.

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 Impacts on Small Entities

The Council prepared an economic analysis that describes the economic impact that this rule will have on small entities. A summary of the analysis follows:

As stated in the preamble to the proposed rule, this action incorporates two separate, but related, decisions of the Council. First, the Council determined that it would modify the annual review and specification process (Decision 1), rather than maintaining the status quo, which would require that specifications be set annually. After the Council elected to modify the annual review and specification process, it then decided to propose the specifications for FY2006 and FY2007 (Decision 2) in order to give effect to Decision 1.

Decision 1, which dealt solely with the 3-year review and specification cycle for the alternatives considered, had two options. Option 1 would not have required an annual review of the status of the red crab resource and fishery, while Option 2 (this final action) does require such review. Neither option would have a direct economic impact on the vessels with limited access permits in the red crab fishery; therefore, there are no alternatives available that would result in different economic impacts on affected small entities.

Decision 2, which dealt solely with the specifications for FY2006 and FY2007, originally identified three alternatives. Two of these became the same alternative (i.e., the resulting target TAC and fleet DAS were equal) so that the remaining two were evaluated in the economic analysis once the Council's choice of specifications for FY2005 was made (see 70 FR 7190, February 11, 2005). This action will continue the same TAC (5.928 million lb (2.69 million kg) and fleet DAS allocation (780) as in FY2004 and FY2005. The non-preferred alternative would have continued the same target TAC, but would have allocated 5 percent fewer total fleet DAS than the DAS allocation for FY2005. This allocation would have remained the same for FY2006 and FY2007. Therefore, under the non-preferred alternative, the DAS allocation for both fishing years would have been 741, rather than the 780 DAS to be implemented under this action.

No adverse economic impacts associated with the fleet allocation of 780 DAS are expected. Since the implementation of the FMP, in no year has any vessel utilized its full DAS allocation, such that no regulatory barriers have existed to prevent vessels from increasing their landings and revenue. Accordingly, the potential remains for vessels to increase their revenues over and above those of recent years.

No significant alternatives exist that would increase expected direct economic benefits relative to the alternative implemented in this rule. The only potential way to increase expected economic benefits above those expected as a result of this rule would be to further increase the target TAC and DAS allocated to the fleet. However, all scenarios in which the target TAC and allocated fleet DAS are higher than 5.928 million lb (2.69 million kg) and 780 DAS, respectively, would compromise the objective of the FMP and the legal mandate of the Magnuson-Stevens Act to prevent overfishing. This action is not expected to alter the fishing practices of the four vessels actively participating, of the five vessels permitted, in the fishery.

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 letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the NMFS Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of limited access permits for the red crab fishery. The guide and this final rule are available at the following web site: http://www.nero.noaa.gov/nero/ .

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

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. Section 648.260 is amended by revising the section heading and paragraphs (a) introductory text, (b) introductory text, and (b)(1) to read as follows: