[Federal Register Volume 74, Number 191 (Monday, October 5, 2009)]
[Rules and Regulations]
[Pages 51092-51093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23945]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0909101271-91272-01]
RIN 0648-AY23


Fisheries of the Northeastern United States; Black Sea Bass 
Recreational Fishery; Emergency Rule

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

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

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SUMMARY: NMFS is implementing, through this emergency rule, a closure 
of the recreational black sea bass fishery in the Federal waters of the 
Exclusive Economic Zone (EEZ) from 3 to 200 nautical miles offshore, 
north of Cape Hatteras, NC. This action is necessary because the best 
available information for black sea bass recreational landings 
indicates that the 2009 recreational harvest limit established for the 
black sea bass fishery is projected to have been exceeded. NMFS is 
effecting this closure to mitigate the magnitude of the recreational 
overage because the established mortality objective for 2009 has been 
exceeded.

DATES: Effective October 5, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AY23, by any 
one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     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 2009 Black Sea Bass Recreational EEZ Closure.''
     Fax: (978) 281-9135. Send the fax to the attention of the 
Sustainable Fisheries Division. Include ``Comments on 2009 Black Sea 
Bass Recreational EEZ Closure'' 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. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: A final rule to establish the recreational 
harvest limits for 2009 for the summer flounder, scup, and black sea 
bass fisheries was published in the Federal Register on January 2, 2009 
(74 FR 29). The black sea bass recreational harvest limit for 2009 is 
1.14 million lb (517 mt). The 2009 recreational management measures for 
Federal waters are a 12.5-inch (31.75-cm) minimum size, a 25-fish 
possession limit, and an open season of January 1 through December 31. 
Marine Recreational Fisheries Statistics Survey (MRFSS) data through 
Wave 3 (January-June) indicate that 1,018,878 lb (462 mt) have been 
landed. Due to time constraints, this amount has not been stratified to 
exclude southern stock landings that occur south of Cape Hatteras, NC. 
The total North Carolina landings through Wave 3 are 71,059 lb (32 mt). 
Therefore, the landings through Wave 3 are at least 947,819 lb (430 
mt). This means that between 83 and 89 percent of the 2009 recreational 
harvest limit had been taken by the end of June. Data for Wave 4 (July-
August) are not yet available; however, an average of 27 percent of the 
annual landings has occurred during Wave 4 in the years 2005-2008. On 
average, an additional 24 percent of landings have occurred during Wave 
5 (September-October) and 4 percent during Wave 6 (November-December) 
for the same time period. Using these proportions of landings by wave 
(i.e., Waves 1-3 = 45 percent of annual landings) and applying the 
information to the actual landings data available through Wave 3 for 
2009 would result in approximately 611,000 lb (277 mt) being landed 
through the end of August (end of Wave 4), with an additional 634,000 
lb (288 mt) expected to be landed before the end of the year if the 
fishery remains open.
    Using MRFSS data in a variety of projection scenarios, NMFS, along 
with independent MRFSS queries made by staff of the Atlantic States 
Marine Fisheries Commission (Commission) and Mid-Atlantic Fishery 
Management Council (Council) have concluded that the 2009 recreational 
harvest limit for black sea bass has been exceeded. Multiple 
projections utilizing the actual 2009 MRFSS data through Wave 3 and 
projected landings for the remaining Waves 4-6 have indicated that the 
potential range of total 2009 landings is from 2.1 to 3.7 million lb 
(953 to 1,678 mt). This would exceed the 2009 recreational harvest 
limit by 84 to 225 percent, respectively, if landings are left 
unchecked until the regulatory closure date of December 31, 2009.
    Regardless of the variability in the projection methods utilized, 
wherein average fish weight and multiple ranges of prior years are 
included to inform average landings in Waves 4-6 were modified in the 
different treatments, a substantial portion of the black sea bass 
recreational fishery clearly occurs during the months of July-October 
(MRFSS Waves 4 and 5). On average, Waves 4-6 have produced 55 percent 
of the total coastwide black sea bass landings in the years 2005-2008. 
Wave 4 MRFSS information for 2009 will not be available until mid-
October. However, the best information currently available indicates 
that the 2009 recreational harvest level has been exceeded and that 
continued operation of the fishery will result in additional landings 
above the established harvest level. Even after a closure of the EEZ 
occurs, additional landings above the established recreational harvest 
level will occur in state waters, unless all states implement closures 
of their state-water recreational black sea bass fisheries.
    The Commission's Black Sea Bass Management Board (Board) convened 
on September 8, 2009, to discuss

[[Page 51093]]

potential emergency closure of the 2009 recreational fishery, but 
ultimately voted not to implement an emergency closure at this time. 
From 2004-2008, approximately 62 percent of black sea bass landings 
were from the EEZ. The amount of black sea bass harvest in the EEZ 
varies by state: No black sea bass were landed in the EEZ adjacent to 
CT, and roughly 10 percent of the MA black sea bass fishery occurred in 
the adjacent EEZ during the 2004-2008 time frame; conversely, NJ, DE, 
and MD all had greater than 92 percent of their respective black sea 
bass landings taken from the EEZ. Had the Board taken action to close 
state waters, the EEZ would have effectively been closed, as 
individuals would have been prohibited from transiting state waters in 
possession of recreationally caught black sea bass from the EEZ.
    NMFS is taking temporary emergency action to close the 2009 black 
sea bass recreational fishery in the EEZ for the remainder of the 
fishing year for the following reasons: (1) The best available 
information indicates that the 2009 recreational harvest limit 
established for the fishery has been greatly exceeded; and (2) the 
projected overage has already exceeded the recreational fishery 
mortality objective established for 2009 and the magnitude of the 
projected overage threatens to exceed the overall mortality objective 
established at the total landings level (i.e., commercial and 
recreational sectors combined).

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
temporary rule is consistent with the national standards and other 
provisions of the Magnuson-Stevens Fishery Conservation and Management 
Act and other applicable laws. The rule may be extended for a period of 
not more than 186 days as described under section 305(c)(3)(B) of the 
Magnuson-Stevens Fishery Conservation Management Act.
    The Assistant Administrator for Fisheries, NOAA, 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 closure action is being implemented to mitigate the 
amount of additional landings that will occur above the established 
2009 recreational harvest limit. As such, time is of the essence in 
implementing the closure. NMFS has demonstrated, using recent fishery 
landings information, that an average of 28 percent of black sea bass 
landings has occurred in Waves 5 and 6 (September-December) in the last 
4 years. By implementing this closure as soon as possible, the amount 
of the recreational harvest limit overage may be minimized. The FMP 
contains no pound-for-pound recreational overage repayment mechanism; 
however, in years following an overage, a greater reduction in the 
following year's fishery is often required unless the overage is offset 
by an increase in the recreational harvest limit. Status quo landing 
limits have been proposed by the Council for the 2010 black sea bass 
fishery. NMFS will review the Council's recommendation for consistency 
with applicable regulations and statutes before implementing a final 
landings level, including a recreational harvest limit, at the end of 
2009. If NMFS implements the Council's recommended TAL of 2.3 million 
lb (1,043 mt) for 2010, the magnitude of the projected 2010 overage is 
such that no recreational fishery may be permitted in the Federal 
waters of the EEZ for 2010. Hence, promulgation of this closure is time 
sensitive. It would be contrary to the public interest to delay as such 
delay would invariably allow additional landings above the recreational 
harvest limit and require greater 2010 landings reductions and/or 
ensure that no recreational fishery would occur in 2010.
    This emergency action responds to analysis of the most recent MRFSS 
data through Wave 3. This information was first available in mid-
August. Time was needed to conduct analyses for potential landings for 
the remainder of 2009, as well as to prepare the rulemaking documents. 
NMFS has developed and implemented this emergency action as expediently 
as possible.
    Waiver of the notice-and-comment rulemaking period will serve the 
public by allowing for a closure which mitigates the amount of landings 
that occur above the established recreational harvest limit.
    For the same reasons, the Assistant Administrator for Fisheries, 
NOAA, finds good cause pursuant to 5 U.S.C 553(d)(3) to make this rule 
effective immediately, thereby waiving the 30-day delayed effective 
date required by 5 U.S.C. 553(d).
    This final 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 29, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. Section 648.142 is revised to read as follows:


Sec.  648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under Sec.  
648.4(a)(7), and fishermen subject to the possession limit may not 
possess black sea bass after October 5, 2009, unless this time period 
is adjusted pursuant to the procedures in Sec.  648.140.

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3. In Sec.  648.145, the first sentence of paragraph (a) is revised to 
read as follows:


Sec.  648.145  Possession limit.

    (a) No person shall possess black sea bass after October 5, 2009, 
in, or harvested from the EEZ, unless that person is the owner or 
operator of a fishing vessel issued a black sea bass moratorium permit, 
or is issued a black sea bass dealer permit. * * *
* * * * *
[FR Doc. E9-23945 Filed 9-30-09; 4:15 pm]
BILLING CODE 3510-22-P