[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Rules and Regulations]
[Pages 38935-38936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16498]



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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 States; Black Sea Bass 
Fishery; 2010 Black Sea Bass Specifications; Emergency Rule Extension

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

ACTION: Temporary rule; emergency action extension.

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SUMMARY: NMFS is extending the emergency action to increase the 2010 
black sea bass specifications (i.e., commercial fishing quota, 
recreational harvest limit, and research set-aside (RSA) quota) 
implemented on February 10, 2010, for the remainder of the 2010 fishing 
year, which ends on December 31, 2010. This emergency rule extension is 
necessary to ensure that the revised specifications remain in place for 
the remainder of the 2010 fishing year. Extending the increase to the 
2010 black sea bass total allowable landings (TAL) will prevent 
disruption to the black sea bass fisheries and foregone economic 
opportunities that would result if the emergency action is allowed to 
lapse.

DATES: Effective August 10, 2010, through December 31, 2010.

ADDRESSES: Copies of the Supplemental Environmental Assessment are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, 55 Great Republic Drive, 
Gloucester, MA 01930. This document is also accessible via the Internet 
at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Sarah Heil, Fishery Management 
Specialist, (978) 281-9257.

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 TAL of 2.3 
million lb (1,043 mt). These measures for the 2010 black sea bass 
fisheries were consistent with the Mid-Atlantic Fishery Management 
Council's (Council's) recommendations made at its August 4-6, 2009, 
meeting. The Council's recommendations were based on its Scientific and 
Statistical Committee's (SSC's) Acceptable Biological Catch (ABC) 
recommendation of 2.71 million lb (1,229 mt). This was the status quo 
from 2009. However, citing information not previously considered, the 
SSC revised its ABC recommendation on January 8, 2010. The SSC 
recommended increasing the ABC from 2.71 million lb (1,229 mt) to 4.5 
million lb (2,041 mt).
    Based on the change to the ABC recommendation from the Council's 
SSC, NMFS published an emergency rule to increase the 2010 black sea 
bass specifications on February 10, 2010 (75 FR 6586). The emergency 
rule increased 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 increased from 2.3 million lb (1,043 mt) to 3.7 million lb (1,678 
mt). Consistent with the allocation of the black sea bass TAL to the 
commercial and recreational sectors specified in the Summer Flounder, 
Scup, and Black Sea Bass Fishery Management Plan (FMP), the emergency 
rule increased the commercial quota to 1,813,000 lb (822 mt), the 
recreational harvest limit to 1,887,000 lb (856 mt), and the RSA quota 
to 111,000 lb (50 mt). The measures of this extension remain unchanged 
from the measures contained in the initial emergency rule and described 
above. This action extends the increased 2010 black sea bass TAL for 
the remainder of the 2010 fishing year, through December 31, 2010.

Comments and Responses

    NMFS received two comments on the initial emergency action.
    Comment 1: This commenter suggested that all fish quotas should be 
cut, and felt that commercial fisheries were causing fish species to 
become extinct.
    Response: The commenter provided no scientific basis that black sea 
bass are at risk of extinction. The reasons presented by the Council 
and NMFS for increasing the 2010 black sea bass specifications are 
based on the best scientific information available and are discussed in 
the preamble of the initial emergency action and this extension. Black 
sea bass are not overfished or subject to overfishing, and are no 
longer subject to a formal Magnuson-Stevens Act rebuilding plan. 
Sufficient analysis and scientific justification for NMFS's action in 
this emergency rule extension are contained within the supporting 
documents.
    Comment 2: This commenter supported the emergency action to 
increase the 2010 black sea bass specifications, but expressed concern 
for the process by which a Council's SSC makes its ABC recommendations. 
The commenter felt that SSCs are being pressured politically to revise 
their ABC recommendations and suggested that the SSCs are inequitably 
charged to prevent overfishing and achieve rebuilding targets, but not 
to achieve optimum yield (OY).
    Response: The emergency action to increase the 2010 black sea bass 
TAL from 2.71 million lb (1,229 mt) to 4.5 million lb (2,041 mt) was 
based on the best scientific information available and was consistent 
with the SSC's revised ABC recommendation. The increase to the 2010 
black sea bass specifications alleviated restrictions on the commercial 
and recreational black sea bass fisheries and prevented direct economic 
loss for fishery participants and associated industries that would have 
resulted from the previous lower catch levels.
    The Magnuson-Stevens Act section 302(g)(B) requires that each SSC 
shall provide its Council with ongoing scientific advice, including 
``recommendations for acceptable biological catch, preventing 
overfishing, maximum sustainable yield [MSY], and achieving rebuilding 
targets, and reports on stock status and health, bycatch, habitat 
status, social and economic impacts of management measures, and 
sustainability of fishing practices.'' However, the Magnuson-Stevens 
Act does not require the SSCs to use a prescribed formula for 
developing ABC recommendations. The new mandated role of the SSCs and 
the process by which each SSC makes ABC recommendations is evolving. In 
addition, NMFS interprets the National Standard 1 requirement to 
achieve OY on a continuing basis to mean producing a long-term series 
of catches such that the average catch is equal to OY, overfishing is 
prevented, and long-term average biomass is near or above the biomass 
target(BMSY). Therefore, National Standard 1 does not 
contemplate that the OY will necessarily be achieved in a single year, 
given the natural fluctuation of fish stocks in response to 
environmental conditions.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
temporary rule is consistent with the national standards and other 
provisions of the Magnuson-Stevens Act and other applicable laws.

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    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. In the initial emergency rule published on February 
10, 2010 (75 FR 6586), NMFS requested, and subsequently received, 
comments on the increased black sea bass TAL. NMFS considered and 
responded to the comments received in the preamble to this rule; no 
changes to the emergency action measures as a result of the comments 
received. The agency has the authority to extend the emergency action 
for up to 186 days beyond the August 9, 2010, expiration of the initial 
emergency action, as authorized under section 305(c)(3)(B) of the 
Magnuson-Stevens Act. NMFS, through this action, extends the emergency 
action to the end of the 2010 fishing year, which ends on December 31, 
2010.
    The measures of this emergency rule extension remain unchanged from 
the measures contained in the initial emergency action. If the initial 
emergency action were allowed to lapse, the TAL would revert back to 
the lower TAL of 2.71 million lb (1,229 mt). Given the nature of the 
commercial and recreational black sea bass fisheries, a substantial 
reduction of the TAL mid-year would significantly complicate management 
of this resource and result in foregone economic opportunities for the 
black sea bass fisheries. Extending the provisions of the emergency 
rule without notice and opportunity for public comment will ensure the 
2010 black sea bass fisheries continue uninterrupted and will prevent 
unnecessary adverse economic impacts. Therefore, for the reasons 
outlined above, the Assistant Administrator 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.
    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.

    Dated: June 29, 2010
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-16498 Filed 7-6-10; 8:45 am]
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