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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648 
          - [Docket No.070817467-8554-02]
          - RIN 0648-XR58

# AGENCY:

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

# ACTION:

 Temporary rule; closure.

# SUMMARY:

                         NMFS announces that the Limited Access General Category (LAGC) scallop fishery will close to individual fishing quota (IFQ) scallop vessels (including vessels issued an IFQ letter of authorization (LOA) to fish under appeal), effective 0001 hours, September 15, 2009, until it re-opens on December 1, 2009, under current regulations. This action is based on the determination that the third quarter scallop total allowable catch (TAC) for LAGC IFQ scallop vessels is projected to be landed. This will prevent IFQ scallop vessels from exceeding the 2009 third quarter TAC, in accordance with the regulations implementing Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan (FMP), enacted by Framework 19 to the FMP, and the                               ( print page 47118)                            Magnuson-Stevens Fishery Conservation and Management Act.                    

# DATES:

 The closure of the LAGC fishery to all IFQ scallop vessels is effective 0001 hr EST, September 15, 2009, through November 30, 2009. 

# FOR FURTHER INFORMATION CONTACT:

 Don Frei, Fishery Management Specialist, (978) 281-9221, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

Regulations governing fishing activity in the LAGC fishery are found at §§ 648.59 and 648.60. Regulations specifically governing IFQ scallop vessel operations in the LAGC fishery are specified at § 648.53(a)(8)(iii). These regulations authorize vessels issued a valid IFQ scallop permit to fish in the LAGC fishery under specific conditions, including a TAC. The TACs were established by the final rule that implemented Framework 19 to the FMP (73 FR 30790, May 29, 2008) and included a TAC of 688,504 lb (312,300 kg) that may be landed by IFQ vessels during the third quarter of the 2009 fishing year. As required by regulation, the third quarter LAGC TAC was reduced from 688,504 lb (312,300 kg) to 309,320 lb (140,305 kg) due to an overage of 379,184 lb (171,995 kg) in the first quarter. The regulations at § 648.53(a)(8)(iii) require the LAGC fishery to be closed to IFQ vessels once the NMFS Northeast Regional Administrator has determined that the TAC is projected to be landed.

Based on the number of IFQ vessel trips, dealer reporting and vessel pre-landing reports through Vessel Monitoring Systems (VMS), and other information, a projection concluded that, given current activity levels by IFQ scallop vessels in the area, 309,320 lb (140.305 kg) will have been landed on September 14, 2009. Therefore, effective 0001 hours on September 15, 2009, no IFQ scallop vessel fishing under LAGC regulations may declare its intent to enter the fishery and may not fish for, possess, or retain any scallops. IFQ scallop vessels will not be allowed to fish for, possess, or retain scallops, or declare, or initiate, a scallop trip following this closure for the remainder of the 2009 third quarter, ending on November 30, 2009. Therefore, in accordance with the regulations at § 648.53(a)(8)(iii), the LAGC scallop fishery is closed to all IFQ vessels as of 0001 hr local time, September 15, 2009. The LAGC scallop fishery will re-open to IFQ scallop vessels on December 1, 2009. 

## Classification

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

This action closes the LAGC scallop fishery to all IFQ scallop vessels until December 1, 2009. The regulations at § 648.53(a)(8)(iii) require such action to ensure that IFQ scallop vessels do not exceed the 2009 third quarter TAC. The LAGC scallop fishery opened for the third quarter of the 2009 fishing year at 0001 hours on September 1, 2009. Data indicating the IFQ scallop fleet has landed all of the 2009 third quarter TAC have only recently become available. The Assistant Administrator for Fisheries, NOAA (AA), 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 to allow a public comment period. If implementation of this closure is delayed to solicit prior public comment, the quota for this quarter will be exceeded, thereby undermining the conservation objectives of the FMP. Also, if the magnitude of any overage is significant, it would warrant a decrease in the fourth quarter quota. This would have a negative economic impact on vessels that fish seasonally in that period. The AA further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delay in effectiveness for the reasons stated above.

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

Dated: September 10, 2009.

James P. Burgess,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

[FR Doc. E9-22169 Filed 9-10-09; 4:15 pm]

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