[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28305-28308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11661]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120501426-2426-01]
RIN 0648-BB98


Temporary Rule To Delay Start Date of 2012-2013 South Atlantic 
Black Sea Bass Commercial Fishing Season

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

ACTION: Temporary rule; emergency action.

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SUMMARY: NMFS issues this temporary rule to delay the start date of the 
2012-2013 fishing season for the commercial black sea bass sector of 
the snapper-grouper fishery from June 1, 2012 to July 1, 2012 to allow 
for the implementation of the final rule for Amendment 18A to the 
Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the 
South Atlantic Region (Amendment 18A). The final rule for Amendment 18A 
modifies black sea bass accountability measures, establishes an 
endorsement program for black sea bass pot fishermen, modifies size 
limits for commercial and recreational black sea bass, and improves 
fisheries data collection in the for-hire sector of the snapper-grouper 
fishery. Amendment 18A also updates the black sea bass rebuilding plan 
and modifies the acceptable biological catch (ABC) for black sea bass. 
The intent of Amendment 18A is to reduce overcapacity in the black sea 
bass segment of the snapper-grouper fishery. The final rule 
implementing management measures in Amendment 18A is not expected to be 
effective until after June 1, the start of the black sea bass fishing 
season. Therefore, this temporary rule is necessary to delay the start 
of the commercial black sea bass season to allow NMFS to finalize 
rulemaking for Amendment 18A. The intent of this temporary rule is to 
reduce the rate of black sea bass harvest and help ensure black sea 
bass landings remain below the annual catch limit (ACL).

DATES: This temporary rule is effective May 14, 2012, through December 
31, 2012.

ADDRESSES: Electronic copies of Amendment 18A and the documents in 
support of this temporary rule, which include a supplemental 
environmental assessment, may be obtained from the Southeast Regional 
Office Web site at http://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm.

FOR FURTHER INFORMATION CONTACT: Kate Michie, Southeast Regional 
Office, NMFS, telephone: 727-824-5305, email: [email protected].

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the snapper-
grouper fishery of the South Atlantic under the FMP. The Council 
prepared the FMP and NMFS implements the FMP through regulations at 50 
CFR part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-
Stevens Act provides the legal authority for the promulgation of 
emergency regulations under section 305(c) (16 U.S.C. 1855(c)).

[[Page 28306]]

Background

    The final rule for Amendment 17B to the FMP (75 FR 82280, December 
30, 2010), effective on January 31, 2011, implemented ACLs and 
accountability measures (AMs) to end overfishing of black sea bass and 
prevent future overfishing from occurring, as required by National 
Standard 1 of the Magnuson-Stevens Act. The ACLS and AMs implemented 
through Amendment 17B for black sea bass resulted in in-season closures 
for the commercial and recreational sectors as well as a reduction in 
the recreational ACL for the 2011-2012 fishing year.
    A new stock assessment for black sea bass was completed in October 
2011, and indicates the stock is no longer overfished, but is not yet 
fully rebuilt. According to 2009 and 2010 data, black sea bass were 
undergoing overfishing ``to a minor degree.'' Although the black sea 
bass stock is increasing in magnitude, too many black sea bass were 
being removed from the population too quickly in 2009 and 2010. As 
overfishing ends for black sea bass, and its biomass increases, the 
commercial ACL is likely to be met earlier each fishing season as a 
result of the increased amount of the stock available for harvest. This 
result could increase the likelihood of derby-style harvesting, which 
is undesirable from economic, vessel safety, and social perspectives. 
Derby-style harvesting, also termed ``the race for fish,'' consists of 
a short duration of increased effort where harvest is maximized prior 
to reaching an ACL. Additionally, in 2009 and 2010, vessels increased 
their fishing effort into the black sea bass segment of the commercial 
snapper-grouper sector as other snapper-grouper species became subject 
to more stringent restrictions. This increase in effort resulted in the 
commercial ACL being reached relatively early in the fishing season. 
During the June 2009 to May 2010 fishing year, the commercial quota was 
met in December 2009. During the June 2010 to May 2011 fishing year, 
the commercial quota was met in October 2010, and during the June 2011 
to May 2012 fishing year, the commercial quota was met in July 2011.
    Currently, the black sea bass rebuilding plan specifies a constant 
catch rebuilding strategy as the stock rebuilds, which also contributes 
to increased rates of harvest and early in-season closures as more fish 
become available through rebuilding efforts. In an effort to extend 
fishing opportunities for black sea bass further into the fishing year, 
and to improve fisheries data reporting in the for-hire sector of the 
snapper-grouper fishery, the Council voted to approve Amendment 18A at 
its December 2011 meeting.
    The Council submitted Amendment 18A for Secretarial Review on 
January 5, 2012. Amendment 18A was partially approved on May 2, 2012. 
The Secretary of Commerce (Secretary) disapproved one management 
measure in Amendment 18A regarding the transferability of black sea 
bass pot endorsements. The Council and NMFS will address this action in 
a separate amendment.
    Amendment 18A contains a new ABC for black sea bass, which takes 
into account the degree to which the 2011 stock assessment report 
indicates overfishing was occurring in 2009 and 2010, as well as the 
magnitude of landings during the 2011-2012 fishing year. The Council's 
Scientific and Statistical Committee (SSC) was provided with data from 
the NMFS Southeast Fisheries Science Center (SEFSC), in November 2011, 
from the 2011-2012 fishing year (June-August data), which indicated the 
commercial ACL of 309,000 lb (140,160 kg), gutted weight, had been 
exceeded by at least 5 percent, and the recreational ACL of 409,000 lb 
(185,519 kg), gutted weight, had been exceeded by at least 10 percent. 
Since recreational data received by the SSC at that time was still 
incomplete (the recreational quota was reached in October, and 
September and October data were not yet available), the SSC supported a 
new ABC for black sea bass which assumes the commercial and 
recreational combined ACL was exceeded by 50 percent in the 2011-2012 
fishing year. Furthermore, the SSC stated the ABC should be specified 
for only the 2012-2013 and 2013-2014 fishing seasons, and indicated an 
assessment update should be conducted before any adjustments are made 
to the ACL after the 2013-2014 fishing season.
    Currently, commercial black sea bass fishermen harvest black sea 
bass with great efficiency as biomass has increased under rebuilding 
efforts, and effort in the black sea bass pot segment of the snapper-
grouper fishery has grown. These factors lead to the fishery reaching 
the commercial ACL very quickly once the season opens. When fish are 
landed quickly, there is a greater chance the fishery will exceed its 
ACL, and overfishing can occur. Because black sea bass are undergoing 
overfishing and are currently subject to a rebuilding plan, maintaining 
landings below the ACL is imperative to allow biomass to increase to 
target levels within the rebuilding timeframe. Under the rebuilding 
plan, the black sea bass stock must be rebuilt by 2016.
    Amendment 18A contains several management measures intended to slow 
the rate of harvest of black sea bass and help ensure black sea bass 
landings remain below the ACL to allow the biomass to increase. The 
management measures also address the derby-style fishery (the race to 
fish) that has developed in the commercial sector. Commercial 
management measures contained in Amendment 18A include: A black sea 
bass pot endorsement program; a limit on the number of black sea bass 
pot tags issued to each endorsement holder each permit year; a 
requirement to return black sea bass pots to shore at the end of each 
fishing trip; a 1,000-lb (454-kg), gutted weight, commercial trip limit 
for black sea bass; and an increase in the minimum commercial size 
limit for black sea bass.

Need for This Temporary Rule

    At its March 2012 meeting, the Council requested that, if Amendment 
18A is approved, NMFS promulgate emergency regulations to delay the 
start date of the commercial black sea bass fishing season until after 
Amendment 18A is implemented, but no later than July 1, 2012. The 
Secretary partially approved Amendment 18A on May 2, 2012, and 
implementation of Amendment 18A will occur after June 1, 2012.
    Delaying the start of the commercial sector until the actions in 
Amendment 18A become effective would reduce the rate of harvest and 
help to ensure the commercial black sea bass sector closes in a timely 
manner. Delaying the start of the 2012-2013 fishing season to allow 
Amendment 18A to become effective will also reduce the risk of 
potential safety-at-sea issues presented when fishermen under pressure 
to harvest a profitable portion of the quota fish in foul weather or 
other unsafe conditions. Therefore, delaying the start of the fishing 
season to allow for the implementation of the measures in Amendment 18A 
will ease derby fishing conditions and relieve some of the pressure on 
fishermen to make unsafe trips, preserve a significant economic 
opportunity that otherwise might be foregone, and prevent further 
overfishing of black sea bass from occurring that would result from the 
delay in implementation of Amendment 18A.
    NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 
44421, August 21, 1997) list three criteria for determining whether an 
emergency exists. This emergency rule is promulgated under these 
criteria. Specifically, to promulgate an

[[Page 28307]]

emergency rule, NMFS' policy guidelines require that an emergency:
    (1) Result from recent, unforeseen events or recently discovered 
circumstances; and
    (2) Present serious conservation or management problems in the 
fishery; and
    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process.
    The unforeseen circumstance is that NMFS did not foresee the 2011 
stock assessment report would indicate overfishing was occurring in 
2009 and 2010, and that the magnitude of landings during the 2011-2012 
fishing year would be so high. To compound these circumstances, the 
Council submitted Amendment 18A for Secretarial Review on January 5, 
2012, which provides little time for the Amendment 18A rulemaking to be 
implemented prior to the June 1 start of the commercial fishing season. 
The notice of availability for Amendment 18A published on January 31, 
2012 (77 FR 4754), with a 60-day comment period ending April 2, 2012. 
The proposed rule for Amendment 18A did not publish until March 23, 
2012 (77 FR 16991), with a 30-day comment period ending April 23, 2012, 
due to confusion over one action in the amendment (transferability of 
black sea bass endorsements). This action was ultimately not included 
in the proposed rule and was disapproved by the Secretary. The Council 
is developing a separate amendment to address this disapproved action.
    If the start of the commercial fishing season is not delayed to 
allow time for the implementation of provisions in Amendment 18A, the 
snapper-grouper fishery will be faced with serious conservation and 
management problems. Under current management practices, the commercial 
black sea bass sector experiences derby-style harvesting, also termed 
``the race for fish.'' Derby fishing has led to the ACL being reached 
and exceeded in a short amount of time, contributing to the overfishing 
of black sea bass. Derby fishing also produces safety-at-sea issues due 
to the short periods of increased effort where vessels compete to 
maximize harvest prior to the ACL being reached. Amendment 18A will 
implement an endorsement program for black sea bass pot fishermen, 
which will reduce the race to fish, because fewer permit holders will 
be fishing for the same quota and the number of pots used to harvest 
black sea bass will be restricted. Also, the 1,000-lb (454-kg), gutted 
weight, commercial trip limit will restrict the amount of fish 
harvested per trip. Therefore, the management measures contained in 
Amendment 18A, intended to end derby-style fishing, will reduce the 
risk of black sea bass overfishing and eliminate the associated safety-
at-sea issues, consistent with National Standards 1 and 10 of the 
Magnuson-Stevens Act (16 U.S.C. 1851(a)(1) and (10)).
    During the past three fishing seasons, derby fishing resulted in 
commercial sector closures on December 20, 2009; October 7, 2010; and 
July 15, 2011. These short derby commercial fishing seasons caused 
negative social and economic impacts as too many black sea bass entered 
the market at one time. Market glut can drive the price of the fish 
down and compromise the quality of the fish. If the commercial sector 
opens on June 1, 2012, without the provisions in Amendment 18A, NMFS 
expects that the 2012-2013 fishing season will be shorter than the 45-
day 2011-2012 fishing season. Delaying the start of the commercial 
fishing season to allow for the implementation of the Amendment 18A 
endorsement program will allow the commercial fishing season to remain 
open longer, because there will be fewer fishermen harvesting black sea 
bass with pots, the number of pots that can be fished will be reduced, 
and the catch per trip will be restricted to 1,000 lb (454 kg), gutted 
weight. A longer fishing season will also allow for better monitoring 
of landings data and a better estimate of the date for an inseason 
commercial closure.
    Additionally, delaying the start of the commercial fishing season 
is necessary to ensure the black sea bass rebuilding plan remains on 
track. A short commercial fishing season caused by derby conditions can 
increase the risk of exceeding the ACL and overfishing could occur. 
National Standard 1 of the Magnuson-Stevens Act states that 
``Conservation and Management measures shall prevent overfishing while 
achieving, on a continuing basis, the optimum yield (OY) from each 
fishery for the United States fishing industry'' (16 U.S.C. 
1851(a)(1)). Black sea bass landings must stay below the ACL to allow 
biomass to increase to target levels within the rebuilding timeframe.
    Finally, the immediate benefit of implementing this emergency 
action outweighs the value of advance notice and public comment. The 
final rule for Amendment 18A, currently under review, would implement 
management measures for black sea bass that would reduce the rate of 
harvest and help to ensure the commercial black sea bass sector closes 
in a timely manner. Not implementing this temporary rule would likely 
lead to negative biological and economic impacts for the snapper-
grouper fishery due to the delay in implementing the management 
measures contained in Amendment 18A. As stated above, if the commercial 
sector were to open before the effort-limiting provisions contained in 
Amendment 18A are implemented, the commercial ACL would likely be 
reached very quickly and the commercial sector could close even earlier 
than last year. Too many black sea bass flooding the market 
simultaneously creates market gluts which can affect overall 
profitability for snapper-grouper fishermen and create unstable market 
conditions for dealers. Management measures contained in Amendment 18A 
should help lengthen the commercial fishing season for black sea bass, 
stabilize the market, and preserve a significant economic opportunity 
for snapper-grouper fishermen.
    Industry representatives have expressed support for this temporary 
rule for emergency action. Many black sea bass commercial fishermen 
also fish for vermilion snapper, which opens on July 1, 2012. Opening 
black sea bass and vermilion snapper on the same day would allow 
fishery participants to maximize fishery opportunities for both species 
concurrently.

Measures Contained in this Temporary Rule

    This temporary rule delays the start date of the 2012-2013 
commercial fishing season for black sea bass from June 1, 2012 to July 
1, 2012. Opening the commercial fishing season July 1 instead of June 1 
could allow the commercial fishing season to stay open until sometime 
between August and October, instead of sometime between July and 
September. The recreational fishing season is not changed and will 
start on June 1, 2012.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for 
Fisheries, NOAA (AA), has determined that this temporary rule is 
necessary to reduce the rate of South Atlantic black sea bass harvest 
and help ensure black sea bass landings remain below the ACL and is 
consistent with the Magnuson-Stevens Act and other applicable laws.

[[Page 28308]]

    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior 
notice and the opportunity for public comment because they are 
impracticable and contrary to the public interest. This temporary rule 
delays the start date of the 2012-2013 commercial fishing season for 
black sea bass from June 1, 2012 to July 1, 2012, to allow NMFS to 
finalize and implement the final rule for Amendment 18A. Amendment 18A 
contains several management measures intended to slow the black sea 
bass harvest rate and help ensure black sea bass landings remain below 
the ACL to allow the biomass to increase. The management measures also 
address the derby-style fishery (i.e., the race to fish) that has 
developed in the commercial sector.
    If the start date to the snapper-grouper fishery is not delayed, 
then the fishery will likely experience negative biological and 
economic impacts. As stated above, if the commercial sector opens 
before the effort-limiting provisions contained in Amendment 18A are 
implemented, the commercial ACL will likely be reached very quickly, 
and the commercial sector could close even earlier than last year. Too 
many black sea bass flooding the market simultaneously gluts markets, 
which can affect the overall profitability for snapper-grouper 
fishermen and create unstable market conditions for dealers. NMFS 
expects management measures contained in Amendment 18A will help 
lengthen the commercial fishing season for black sea bass, which should 
help to stabilize the market and preserve a significant economic 
opportunity for snapper-grouper fishermen. Moreover, if the start date 
is not delayed, the derby fishing conditions would continue to exist 
until NMFS is able to implement the provisions of Amendment 18A. As 
mentioned above, this style of fishing may lead to safety-at-sea issues 
due to the short periods of increased effort where vessels compete to 
maximize harvest prior to the ACL being reached.
    Therefore, NMFS needs to implement this temporary rule as soon as 
possible to provide notice to commercial black sea bass pot fishermen 
that the commercial fishing season will be delayed until July 1, 2012, 
and to allow them time to revise their business strategies.
    For similar reasons, the AA also finds good cause to waive the 30-
day delay in effectiveness of the action under 5 U.S.C. 553(d)(3). 
Delaying this rules effectiveness will allow the black sea bass 
commercial sector to open on July 1, 2012, rather than on June 1, 2012. 
The earlier start to the black sea bass commercial season could result 
in a race to fish, which in turn could result in safety-at-sea issues, 
as well as glut the market for black sea bass by flooding it with 
product and depressing prices. Finally, delaying this rule's 
effectiveness may increase the risk that black sea bass will continue 
to be harvested at a fast pace and could result in black sea bass 
exceeding its ACL. Accordingly, delaying the rule's effectiveness is 
contrary to the public interest, and the 30-day delay in effectiveness 
is hereby waived.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553 or any other law, the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. 
are inapplicable.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: May 9, 2012.
Samuel D. Rauch III,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.30, paragraph (e) is suspended and paragraph (f) is 
added to read as follows:


Sec.  622.30  Fishing years.

* * * * *
    (f) South Atlantic black sea bass--(1) The fishing year for the 
black sea bass bag limit specified in Sec.  622.39(d)(1)(vii) is June 1 
through May 31.
    (2) The fishing year for the black sea bass quota specified in 
Sec.  622.42(e)(5) is July 1 through May 31.

[FR Doc. 2012-11661 Filed 5-11-12; 8:45 am]
BILLING CODE 3510-22-P