[Federal Register Volume 75, Number 66 (Wednesday, April 7, 2010)]
[Rules and Regulations]
[Pages 17618-17621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7882]


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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 Correction and Extension

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

ACTION:  Temporary rules; correcting amendment and emergency action 
extension.

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SUMMARY:  NMFS is taking two actions through this rule: Correcting 
regulations in the October 5, 2009, emergency rule that closed 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; and extending of that initial closure. This 
action is necessary to both correct the implementing regulations of the 
initial closure that were inadvertently implemented with no end date, 
and to extend the prohibition on recreational fishing for black sea 
bass in the EEZ beyond the expiration of the initial closure period. 
The intent of the correction is to correct the regulatory language of 
the initial closure, thereby establishing an end date for the initial 
closure period, consistent with the intent of the initial rule. The 
intent of the emergency closure extension is to ensure that 
recreational mortality does not occur between the end date of the 
closure as specified in the correcting action of this rule, and the 
start of the 2010 black sea bass recreational fishery season 
recommendations of both the Mid-Atlantic Fishery Management Council 
(Council) and Atlantic States Marine Fisheries Commission (Commission).

DATES:  Amendments to Sec. Sec.  648.142 and 648.145 in amendatory 
instructions 2 through 4 are effective April 7, 2010, and the amendment 
to Sec.  648.142 in amendatory instruction 5 is effective April 8, 2010 
through 11:59 p.m., May 21, 2010.

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

SUPPLEMENTARY INFORMATION:

Correction Rule

    NMFS published an emergency rule to close Federal waters of the EEZ 
from 3 to 200 nautical miles offshore, north of Cape Hatteras, NC, to 
black sea bass recreational fishing in the Federal Register effective 
October 5, 2009 (74 FR 51092), for a period of 180 days. This closure 
was necessary as the information available indicated that the 2009 
Recreational Harvest Limit (RHL), the annual catch level established 
for the recreational fishery, had been exceeded by a considerable 
amount. Subsequent to the closure implementation, information from the 
NMFS Marine Recreational Fisheries Statistics Survey (MRFSS) through 
August 2009 indicated black sea bass landings were 1,944,303 lb (882 
mt). This exceeded the 2009 RHL of 1,137,810 lb (516 mt) by 71 percent.
    An error occurred in promulgating the October 5, 2009, emergency 
closure rule. The rule was published in the Federal Register without 
specification of when the 180-day effective period would end. The rule 
became effective on October 5, 2009, and will remain in effect until 
modified by subsequent rulemaking. While NMFS clearly intended that the 
closure remain in effect for 180 days, consistent with the authority 
provided in section 305(c) of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), the lack of a published end 
date has been confusing to stakeholders, implements a regulation that 
would exceed the underlying authority used to implement the closure, 
and requires correction. Thus, this action is correcting the October 5, 
2009 (74 FR 51092), rule so that the 180-day period end date of April 
12, 2010, is provided, as originally intended by NMFS and consistent 
with the emergency authority in the Magnuson-Stevens Act.

Temporary Emergency Rule Extension

    At the time of the initial emergency closure, NMFS, the Council, 
and Commission were in the process of finalizing 2010 black sea bass 
specifications (i.e., RHL and commercial fishery quota) and would be 
undertaking the initial phases of 2010 black sea bass recreational 
management measures shortly thereafter. It was not known exactly what 
the 2010 specifications would be when the closure was implemented, but 
the preliminary information available suggested that recreational 
landings in 2010 would have to be reduced from 2009 levels to ensure 
the 2010 RHL would not be exceeded. Thus, NMFS implemented a 180-day 
closure rather than implementing a closure effective only until the end 
of the 2009 fishing year. The expectation at the time of the closure 
was that the Council and Commission's joint management process for 
recommending recreational measures would occur through November and 
December 2009, with a final recommendation for managing the 2010 
recreational black sea bass provided to NMFS early in 2010 for review, 
analysis, and rulemaking. Several unforeseen events have transpired in 
the interim since the initial closure was implemented on October 5, 
2009. These events have made the 2010 black sea bass recreational 
management measures

[[Page 17619]]

development process more lengthy and more complex than anticipated, 
outlined as follows.
    In December 2009, the Council and Commission developed recommended 
management measures for the 2010 recreational fishery. The measures 
were designed to achieve a 66-percent reduction in landings from 
projected 2009 levels, which was consistent with the black sea bass RHL 
of 1,137,810 lb (516 mt) previously adopted by the Council and 
Commission. The 66-percent reduction was calculated using 2009 landings 
data from Waves 1-4 (January-August), and projected landings for Waves 
5 and 6 (September-December), as data for Waves 5 and 6 were not 
available at the time the Council and Commission met.
    On December 22, 2009, NMFS published a final rule implementing the 
specifications for the 2010 black sea bass fishing year. These 
specifications, effective January 1, 2010, included total allowable 
landings (TAL) for black sea bass of 2.3 million lb (1,043 mt), of 
which 1,137,810 lb (516 mt) was allocated to the recreational fishery 
as the RHL. This TAL and RHL was consistent with the recommendations of 
the Council and Commission.
    In early January 2010, the Council's Scientific and Statistical 
Committee (SSC) convened to reconsider their previous recommendations 
regarding the Acceptable Biological Catch (ABC) for black sea bass for 
the 2010 fishing year. The SSC concluded that the ABC for black sea 
bass could be increased from 2.71 million lb (1,229 mt) to 4.5 million 
lb (2,041 mt), which was consistent with catch levels established for 
2008.
    In response, on January 15, 2010, the Council submitted a letter to 
NMFS requesting that the agency take emergency action to increase the 
black sea bass TAL for 2010 consistent with the revised ABC. The letter 
requested that NMFS increase both the 2010 commercial quota and RHL for 
black sea bass.
    On February 10, 2010, in response to the Council's request, NMFS 
published an emergency rule to increase the 2010 black sea bass TAL 
from 2.3 million lb (1,043 mt) to 3.7 million lb (1,678 mt), and to 
increase the RHL to 1,830,390 lb (830 mt) (the commercial quota was 
also increased to 1,758,610 lb (798 mt)).
    In mid-February 2010, the Commission and Council met separately to 
reconsider the recreational fishery management measures developed in 
December 2009. The measures adopted in December 2009 were designed to 
achieve a 66-percent reduction in black sea bass landings relative to 
2009, but with the increased RHL implemented in the emergency rule, 
only a 44-percent reduction appeared necessary. Both the Council and 
Commission retained the status quo minimum fish size of 12.5 inches 
(31.75 cm) and 25-fish bag limit, but the two groups adopted different 
seasons. The Commission adopted a single season from May 22-September 
12, and the Council recommended a split season from May 22-August 8 and 
September 4-October 4. Both sets of measures are projected to achieve 
the target 44-percent reduction in landings.
    NMFS is currently reviewing the recommendations made by the Council 
for the 2010 black sea bass recreational fishery. The Council initially 
submitted for review materials analyzing the recommendations and 
alternatives reviewed in December 2009; however, on March 3, 2010, the 
Council submitted an addendum to include the new recommendation 
developed at its February 2010 meeting. NMFS is currently developing a 
proposed rule for summer flounder, scup, and black sea bass 
recreational fishing measures for the 2010 fishing year, and this 
proposed rule is expected to publish soon. With this rule, NMFS will 
solicit comments from the public on the Council's recommendations for 
the black sea bass recreational fishery, as well as other alternatives 
that may be available, and, once the public comment period is closed, 
will publish a final rule to implement the final management measures 
for 2010.
    Absent this action, the emergency closure of the black sea bass 
recreational fishery would expire on April 12, 2010. However, both the 
Council and Commission have proposed fishing seasons that open on May 
22, 2010. In order to preserve the fishing seasons proposed by both 
groups, and to ensure that the Federal management measures are 
consistent, to the maximum extent practicable, with state management 
measures, this action is necessary to extend the closure of the black 
sea bass recreational fishery through May 21, 2010.
    The 44-percent reduction in landings utilized by both the Council 
and Commission to develop their February recommendations makes use of 
landings projections for both MRFSS 2009 Wave 5 and 6 (September-
October and November-December, respectively). The calculations for this 
projection were performed by the Council's Black Sea Bass Monitoring 
Committee (Monitoring Committee). When the Monitoring Committee met in 
November 2009 to discuss black sea bass recreational management 
measures, it acknowledged that the closure likely had some impact on 
landings, but that it could not quantify the impact at that time. The 
Monitoring Committee utilized a precautionary approach and assumed the 
EEZ black sea bass closure had no effect on landings because it was 
known that some level of fishing continued in state waters. It was 
expected that 2009 MRFSS Wave 5 data would be available in mid-December 
2009, which would have allowed for a more informed analysis of the 
closure impacts on landings.
    Issues related to sampling size and the telephone survey frame of 
the 2009 MRFSS Wave 5 have required extensive additional analyses. 
Thus, the data are not yet available to inform decisionmaking on 2010 
black sea bass recreational fishery management measures. It is expected 
that the Wave 5 data will be available in April 2010, when the final 
2009 MRFSS data are available. There is significant interest in how the 
Wave 5 data may differ from the projection used to derive the 44-
percent reduction in landings utilized by the Council and Commission to 
2010 black sea bass recreational management measures.
    Preliminary 2009 MRFSS Wave 6 data are now available, and NMFS has 
incorporated these data into the analysis of 2009 recreational 
landings. The black sea bass fishery was closed in the EEZ for the 
entire Wave 6 timeframe in 2009. The preliminary Wave 6 data indicate 
that 2009 landings were approximately 75-percent lower than the 2008 
Wave 6 level. NMFS has conducted additional projections that make use 
of the preliminary 2009 Wave 6 data in conjunction with different 
assumptions about the impact the EEZ closure had on landings between 
the October 6-31, 2009, period during Wave 5 2009. Based on these 
revised projections, it appears likely that the percent reduction in 
landings from 2009 levels necessary for 2010 may be less than 44 
percent. NMFS anticipates being able to fully evaluate the 2009 Wave 5 
data, when available, before a final rule for the 2010 black sea bass 
recreational management measures is implemented, and will adjust, as 
appropriate, the percent reduction in 2010 landings accordingly.
    In the interim, it is necessary to extend the emergency closure of 
the recreational black sea bass fishery in the EEZ until 11:59 p.m., 
May 21, 2010, for several reasons. Even under the most liberalized 
projections for 2009 Wave 5, a reduction in landings remains necessary, 
and the magnitude required is sufficient to preclude fishing until May 
22, 2010, the current preferred opening date for both the Council and 
Commission's 2010 recreational fishing

[[Page 17620]]

seasons. NMFS requires additional time to analyze the 2009 Wave 5 data 
and to confer with the Council, Commission, and the public regarding 
the final measures to be implemented for 2010. By ensuring that the EEZ 
remains closed between April 12, 2010, and the start of the current 
Council and Commission-preferred season start date of May 22, 2010, 
NMFS can ensure that these additional considerations occur in an open 
and transparent manner. The correction and extension implemented by 
this action will also help avoid confusion on when fishing may resume 
in the EEZ, and should provide a date certain for the season to begin 
for business and angler planning purposes. The actions of this rule 
build a necessary bridge to the planned notice-and-comment rulemaking 
that will be conducted to establish the final 2010 black sea bass 
recreational management measures. A proposed rule is anticipated in 
April 2010, with final rulemaking anticipated for June.

Comments and Responses

    A 30-day public comment period was provided on the initial 180-day 
closure rule. NMFS did not receive any specific comments relating to a 
potential extension of the initial 180-day closure. The initial closure 
was highly controversial and a great deal of negative reaction was 
received through telephone calls, e-mail, correspondence, and in the 
press through various media. Many of the individuals providing feedback 
stated surprise that the closure was being implemented, took exception 
to the use of MRFSS data as the basis for the overage calculations, and 
discussed negative socio-economic impacts related to the closure. 
Others stated that the closure had no biological basis, as the stock 
was not subject to overfishing. Litigation has been filed (UNITED 
BOATMEN ET AL. v. LOCKE ET AL., Case 3:09-cv-05628-JAP-LHG) that seeks, 
among other things, a prohibition on utilizing MRFSS data to inform 
inseason recreational management actions. The full scope of complaints 
registered by the public regarding the initial 180-day closure appear 
in the plaintiff's motion for relief and, as such, NMFS will respond to 
them through the litigation process in briefs to the court. Some may 
find the extension of the emergency action controversial; however, 
extending the closure is necessary as previously outlined.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
emergency rule extension is necessary for the conservation and 
management of the black sea bass fishery and that it is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    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). The Assistant Administrator also finds it is unnecessary and 
contrary to the public interest to provide any additional notice and 
opportunity for public comment under 5 U.S.C. 553(b)(B) prior to 
publishing the emergency rule extension.
    The need to correct the initial emergency rule language to specify 
an end date and to extend this emergency closure action for an 
additional 39 days was not evident until February 24, 2010, when the 
Council notified NMFS of its intent to prepare an addendum to its 
initial recommendation for 2010 black sea bass recreational management 
measures. Prior to this date, it was unknown what course of action was 
likely for the 2010 fishing season and if the Council-preferred action 
would require extension of the 180-day closure. In examining options 
for extending the closure to better synchronize with the Council and 
Commission-preferred season opening dates, NMFS became aware of the 
error in the initial emergency closure rule that lacked an end date, 
despite the lapse in authority provided by the Magnuson-Stevens Act, 
effective April 12, 2010.
    Typically, the process for recreational management measures begins 
with a joint-Council and Commission meeting in early December; a formal 
recommendation is conveyed to NMFS, including appropriate analyses, in 
late January or early February, and rulemaking is conducted with a June 
1 target implementation date. However, the 2010 process has been more 
complex and lengthy than usual. The Council's SSC provided an increased 
ABC recommendation in early January 2010, NMFS conducted emergency 
rulemaking to increase the 2010 black sea bass TAL (including increased 
RHL) and both the Council and Commission, who co-manage black sea bass 
in state and Federal waters, respectively, had separate meetings in 
early February 2010 wherein new recreational management measure 
recommendations were adopted. As a result, both groups have conducted 
analysis that indicate that 2010 black sea bass recreational harvest 
should be decreased by 44 percent from 2009 levels. To achieve this 
reduction, both the Council and Commission have recommended seasons 
that will begin no earlier than May 22, 2010. These recommendations 
were not formalized until recently. Extension of the emergency closure 
was developed as expediently as possible; however, it was not 
foreseeable that the extension would be necessary until the last week 
of February 2010, nor was it evident that the initial 180-closure rule 
needed to be corrected until NMFS undertook a more detailed examination 
of how the Code of Federal Regulations was modified by the initial 
closure.
    It is now evident that the initial emergency closure contained an 
error by not specifying April 12, 2010, as the end of the 180-day 
period, and, that it must be corrected. The 2010 recreational 
management measures process has unfolded sufficiently to make it 
evident that the existing recreational closure of the EEZ must remain 
effective until at least May 22, 2010, to ensure that the fishing 
mortality objectives for the 2010 recreational black sea bass fishery 
are not changed from the levels contained in the Council and 
Commission's analyses. If the initial emergency rule was not corrected, 
the EEZ closure would remain in effect indefinitely, despite the 
regulatory authority for the closure expiring on April 12, 2010. This 
would create a confusing and difficult situation for fishery 
participants. If the black sea bass recreational fishery were reopened 
in the EEZ effective April 12, 2010, the current expiration date of the 
initial 180-day closure, it is expected that recreational fishing would 
resume in the EEZ. The Council and Commission's preferred 2010 
recreational management measures presume that no fishing will occur 
until at least May 22; thus, if the emergency closure is not extended 
by 39 days, the projections for 2010 fishing mortality will be 
violated. The additional mortality that would occur if fishing resumed 
prior to May 22 would require additional action by NMFS to further 
modify 2010 measures to ensure the required reduction in 2010 landings 
occurs. Moreover, implementation of recreational management measures 
would likely be further delayed while NMFS conducted additional 
analyses to understand the stock impacts of reopening the EEZ before 
the recommended May 22 date. Additional delays in the already 
complicated and delayed 2010 process would not benefit the angling 
public for planning purposes and would likely result in different 
measures in state and Federal waters, a situation that the Council and 
Commission have sought to avoid by

[[Page 17621]]

recommending similar measures for 2010.
    Waiver of the 30-day delay in effectiveness period will ensure that 
the existing recreational black sea bass EEZ closure date will be 
clarified by the corrective action of this rule and that the closure 
will remain effective for an additional 39 days until 11:59 p.m., May 
21, 2010. This will ensure that development of 2010 black sea bass 
recreational management measures will be based on the most up-to-date 
data, and that the mortality objectives are not compromised by 
reopening the fishery before the Council and Commission preferred start 
date of May 22. Furthermore, the correction and extension of the 
closure provides a date certain for the start of the 2010 fishing 
season so that the interested public and fishery-dependent businesses 
can plan accordingly. It was not practicable to promulgate the 
correction and extension more expediently, given the unforeseen 
circumstances outlined in the preamble to this rule. Public comment was 
solicited on the initial 180-day emergency rule, as outlined in the 
preamble. For the reasons outlined herein, it is contrary to the public 
interest to provide any additional notice and opportunity for public 
comment under 5 U.S.C. 553(b)(B) prior to publication of this emergency 
rule extension.
    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: April 1, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
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.


Sec.  648.142  [Corrected]

0
2. In Sec.  648.142, remove ``may not possess'' and add in its place 
``may possess''.

0
3. In Sec.  648.142, remove ``after October 5, 2009'' and add in its 
place ``from January 1, 2010 through December 31, 2010''.


Sec.  648.145  [Corrected]

0
4. In the first sentence of Sec.  648.145 paragraph (a), remove the 
phrase ``black sea bass after October 5, 2009'' and add in its place 
``more than 25 black sea bass''.

0
5. In Sec.  648.142, the existing text of the paragraph is suspended, 
and paragraph Sec.  648.142(a) and (b) are added to read as follows:


Sec.  648.142  Time restrictions.

    (a) 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 from April 8, 2010 through 11:59 p.m., May 
21, 2010, unless this time period is adjusted pursuant to the 
procedures in Sec.  648.140.
    (b) [Reserved]

[FR Doc. 2010-7882 Filed 4-6-10; 8:45 am]
BILLING CODE 3510-22-S