[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Rules and Regulations]
[Pages 6586-6588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2941]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-XT99
[Docket No. 100120036-0038-01]


Fisheries of the Northeastern United; Black Sea Bass Fishery; 
2010 Black Sea Bass Specifications; 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: Through this emergency rule NMFS is implementing increases to 
the 2010 black sea bass specifications (i.e., commercial fishing quota, 
recreational harvest limit (RHL), and research set-aside (RSA)). This 
action is necessary to mitigate potential foregone economic yield 
associated with the current lower specifications and to ensure the 
specifications are consistent with the best available scientific 
information. This action is also necessary to increase specifications 
consistent with the recently revised catch level recommendation from 
the Mid-Atlantic Fishery Management Council (Council) and its 
scientific advisors, the Scientific and Statistical Committee (SSC).

DATES: Effective from February 10, 2010, through August 9, 2010. 
Comments must be received (see ADDRESSES) by 5 p.m., local time, on 
March 12, 2010.

ADDRESSES: You may submit comments, identified by 0648-XT99, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     (978) 281-9135. Send the fax to the attention of the 
Sustainable Fisheries Division. Include ``Comments on 2010 Black Sea 
Bass Specification Increase'' prominently on the fax.
     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 2010 Black Sea Bass Specification Increase.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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). You may submit attachments to 
electronic comments 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 2010 black sea 
bass specifications was published in the Federal Register on December 
22, 2009 (74 FR 67978), and became effective on January 1, 2010. The 
final rule implemented a 2.71-million-lb (1,229-mt) Total Allowable 
Catch (TAC) and, after deducting estimated discards, a Total Allowable 
Landings (TAL) of 2.3 million lb (1,043 mt). The TAC was based on the 
SSC(s initial 2010 Acceptable Biological Catch (ABC) recommendation of 
2.71 million lb (1,229 mt) and was the status quo catch level from 
2009. The TAL was further subdivided into RSA, commercial quota, and a 
RHL as outlined in the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP). However, at its December 9-11, 2009, 
meeting in Wilmington, DE, the Council decided to convene a joint 
meeting of the SSC and Black Sea Bass Monitoring Committee (MC) to re-
examine and reconsider the SSC(s 2010 black sea bass ABC 
recommendation. The Council's SSC and MC met on January 8, 2010, and 
ultimately decided to revise the ABC recommendation from 2.71 million 
lb (1,229 mt) to 4.5 million lb (2,041 mt), consistent with catch 
levels established for 2008.
    On January 15, 2010, the Northeast Regional Administrator, NMFS, 
received a letter from the Council Chairman, on behalf of the full 
Council, formally relaying the SSC(s revised ABC recommendation and 
requesting emergency action to increase catch levels as expediently as 
possible. The Council outlined the following as justification for 
requesting the emergency modification of the 2010 black sea bass catch 
levels as follows:
     The Council provided the January 8, 2009, SSC meeting 
summary. The summary document provides information on the SSC 
discussion and its justification for revising the 2010 ABC 
recommendation.
     The revision of the ABC recommendation by the Council(s 
SSC was unforeseen.
     The increased catch levels provided by the revised ABC 
level can be reasonably expected to alleviate significant social and 
economic impacts relative to the initial ABC recommendation from the 
SSC.
    The Regional Administrator has reviewed the Council(s request for 
temporary emergency rulemaking with respect to section 305(c) of the 
Magnuson Stevens Fishery Conservation and Management Act (MSA) and NMFS 
policy guidance for the use of emergency rules (August 21, 1997; 62 FR 
44421) and finds the Council(s request meets both the criteria and 
justifications for invoking the emergency rulemaking provisions of the 
MSA. Specifically, the SSC revision of its previously recommended ABC 
was a recent and unforeseen event. By this emergency rulemaking, NMFS 
is increasing the 2010 black sea bass TAC and TAL, thereby relieving 
restrictions imposed by the previous, lower catch levels. Doing so will 
assist in preventing significant direct economic loss for fishery 
participants and associated industries that would be subject to lower 
commercial and recreational harvest levels. An additional amount of 
black sea bass landings will be set aside for research activities, 
thereby

[[Page 6587]]

permitting additional research to be funded by black sea bass RSA in 
2010.
    Through this temporary emergency rule, NMFS increases the 2010 
black sea bass TAC from 2.71 million lb (1,229 mt) to 4.5 million lb 
(2,041 mt), consistent with the revised ABC recommendation from the 
SSC. After deducting discards from the TAC, the TAL is increased from 
2.3 million lb (1,043 mt) to 3.7 million lb (1,678 mt). The Council 
expressed a desire that 3 percent of the increased TAL be set aside for 
research, consistent with its initial specification process that 
occurred in August 2009. This results in 111,000 lb (50 mt) as the 
revised RSA. The remaining 3,589,000 lb (1,628 mt) is divided 49 
percent for the revised commercial fishery quota and 51 percent as the 
revised RHL. The complete change to all specifications resulting from 
this temporary emergency rule are outlined in Table 1.

                                      TABLE 1. TEMPORARY EMERGENCY RULE REVISED 2010 BLACK SEA BASS SPECIFICATIONS
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Allowable Biological          Discards             Total Allowable       Research Set-Aside       Commercial Quota      Recreational Harvest
            Catch (ABC)/ Total   ------------------------     Landings (TAL)               (RSA)         ------------------------       Limit (RHL)
           Allowable Catch (TAC)                         ------------------------------------------------                        -----------------------
         ------------------------     lb          mt                                                          lb          mt
              lb          mt                                  lb          mt          lb          mt                                  lb          mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
Publishe  2,710,000       1,229     410,000         186   2,300,000       2,252      69,000          31   1,093,190         456   1,137,810         516
 d at 74
 FR
 67978,
 Decembe
 r 22,
 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emergenc  4,500,000       2,041     800,000         363   3,700,000       1,678     111,000          50   1,758,610         798   1,830,390         830
 y Rule
 Revisio
 ns
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 contrary to the 
public interest.
    This emergency action is being implemented to increase the 2010 
black sea bass allowable landings levels for the commercial and 
recreational fisheries, thereby alleviating restrictions on both. The 
information to support the increase through this action was not 
available from the Council until January 15, 2010, and occurred as the 
result of unforeseen circumstances. It could not be foreseen that the 
Council would request the SSC to revisit its 2010 ABC recommendation 
from the catch levels associated with the previously implemented, more 
restrictive measures. It was also unforeseen that the SSC would 
increased its previously recommended ABC level and that the Council 
would request implementation of the increase by emergency action.
    Unnecessary economic harm and negative social impacts will occur to 
fishery participants and related businesses if this action to increase 
catch levels is not enacted as quickly as possible. Notice and comment 
rulemaking would significantly delay implementation of the increased 
catch levels and, given the seasonal distribution of black sea bass, 
would likely result in differential, higher impacts to some individual 
states and fishery participants that operate almost exclusively in the 
first quarter. Such impacts would undermine the intent of this rule. 
These negative socio-economic impacts may be alleviated or eliminated 
by the more expedient implementation of increased catch limits by NMFS 
through this emergency rule.
    Commercial fishing activities are already underway for the 2010 
fishing season that opened on January 1, 2010. Individual states are 
currently utilizing very restrictive trip and possession limits to 
ensure that the NMFS-administered coastwide quota is available for the 
entirety of the 2010 fishing year. These possession limits cause 
fishery participants that encounter black sea bass above and beyond 
their permitted limits to discard fish at sea, often with high 
mortality rates among discarded animals. By promulgating this emergency 
rule without prior notice and the opportunity for public comment, NMFS 
will more quickly increase the 2010 commercial quota which will, in 
turn, allow for less restrictive state-administered trip and possession 
limits. This will allow fishery participants to convert potential at-
sea discards into landings and to maximize the economic returns from 
their fishing operations.
    Recreational fisheries have not yet begun for 2010; however, the 
Council is in the process of finalizing recommended 2010 management 
measures for submission to NMFS for review and implementation. By 
foregoing prior notice and the opportunity for public comment, NMFS 
will ensure that the Council may make use of the less restrictive, 
increased RHL when crafting and analyzing potential 2010 black sea bass 
recreational management measures. Were normal notice-and-comment 
rulemaking utilized to implement the increased 2010 black sea bass 
catch levels, it is highly likely that additional rulemaking would be 
necessary to liberalize recreational management measures later in the 
year following the implementation of the increased RHL. Following the 
implementation of this emergency rule to increase the RHL, only one 
notice-and-comment rulemaking will be necessary to establish the 2010 
recreational management measures in the spring of 2010.
    The efficiencies gained by promulgating recreational management 
measures through one rulemaking are significant and contribute to 
effective joint management between state and Federal management 
partners and ensures the orderly prosecution of the fishery. Many of 
the individual states involved with management of black sea bass 
recreational fisheries within their state-water jurisdictions have 
complex rulemaking processes, often involving their respective 
legislatures or public hearing processes. Were black sea bass 
recreational management measures revised through a second rulemaking 
mid-year or later, comparable state management measures would lag 
behind measures for Federal waters. This is an undesirable situation 
that NMFS, the Council, and the individual states have specifically 
sought to avoid in recent years by jointly adopting identical 
management measures for state and Federal waters. In addition, many 
recreational party and charter vessel

[[Page 6588]]

operators book clients for trips well in advance. These operators will 
benefit by being able to better plan their operations for the entirety 
of the fishing year under the to-be established recreational management 
measures as opposed to having to develop business plans for measures 
under both the existing and increased catch levels that would become 
effective later in the fishing year were a second rulemaking necessary.
    In addition, by implementing the increase in 2010 TAL quickly, NMFS 
will be able to increase the amount of black sea bass set aside for 
research from 69,000 lb (31 mt) to 111,000 lb (50 mt). This additional 
42,000 lb (19 mt) will permit additional research on black sea bass to 
be conducted. A previously approved RSA project to conduct a pot survey 
of scup in hard bottom areas of southern New England has been awarded a 
NOAA Grant to conduct their proposed scup research using RSA; however, 
this project also proposed to conduct simultaneous research on black 
sea bass but was not awarded authorization to do so because 
insufficient pounds of black sea bass RSA were available at the time of 
the grant award. This action will make available sufficient black sea 
bass RSA for the black sea bass component of this project to move 
forward. Timely distribution of the additional RSA pounds is necessary 
to ensure both the research field work and RSA-compensation fishing can 
occur during the spring fishery. Delay of the additional black sea bass 
RSA award by notice-and-comment rulemaking would likely jeopardize the 
completion of the research. The researcher would likely miss a 
substantial portion of the field research, not have sufficient time to 
generate research funding by the sale or capture of the RSA pounds, or 
both.
    NMFS has determined that increasing the 2010 black sea bass TAC and 
TAL by emergency action is consistent with section 305(c) of the MSA 
and NMFS guidance for application of emergency rules. The revised TAC 
and TAL are consistent with the best available scientific information 
(i.e., the revised SSC ABC recommendation), the Summer Flounder, Scup, 
and Black Sea Bass FMP, and present a low likelihood that the black sea 
bass stock will experience overfishing. Implementation via emergency 
rule is expected to substantially mitigate negative socio-economic 
impacts to fishery participants and associated businesses. Negative 
socio-economic impacts would continue or, in some components of the 
2010 fisheries be more severe, if implementation of the increased TAL 
were delayed by normal notice-and-comment rulemaking.
    For the same reasons, the Assistant Administrator for Fisheries, 
NOAA, finds good cause pursuant to 5 U.S.C 553(d)(3) to waive the 30-
day delayed effective date required by 5 U.S.C. 553(d). Members of the 
public, fishing and related industries, and the Council expect NMFS to 
utilize the most expedient rulemaking processes possible to ensure that 
the revised 2010 black sea bass TAL is implemented as quickly as 
possible to relieve fishery restrictions.
    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 
USC 553 or any other law.

    Dated: February 4, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-2941 Filed 2-9-10; 8:45 am]
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