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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 080521698-9067-02]
          - RIN 0648-XR42

# AGENCY:

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

# ACTION:

Temporary rule; gear restriction.

# SUMMARY:

This action modifies the gear requirements for the U.S./Canada Management Area to prohibit all limited access Northeast (NE) multispecies vessels fishing on a NE multispecies day-at-sea (DAS) with trawl gear in the Eastern U.S./Canada Area from using flounder trawl nets. This action is authorized by the regulations implementing Amendment 13 to the NE Multispecies Fishery Management Plan (FMP), and is intended to decrease the likelihood of exceeding the total allowable catch (TAC) for Eastern Georges Bank (GB) cod and GB yellowtail flounder during the 2009 fishing year (FY). This action is being taken to optimize the harvest of transboundary stocks of GB yellowtail flounder, haddock, and cod under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

# DATES:

Effective September 17, 2009, through April 30, 2010.

# FOR FURTHER INFORMATION CONTACT:

Douglas Potts, Fishery Policy Analyst, (978) 281-6341, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION: 

Regulations governing the gear requirements for the U.S./Canada Management Area under the 2009 interim final rule (74 FR 17030, April 13, 2009) are found at § 648.85(a)(3)(ix). The regulations require that trawl vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies DAS in the Eastern U.S./Canada Area, as defined at § 648.85(a)(1)(ii), fish with a Ruhle trawl, a haddock separator trawl, or a flounder trawl net. The Eastern U.S./Canada Area GB cod TAC for FY 2009 (May 1, 2009 - April 30, 2010) was specified at 527 mt, and the TAC for the entire U.S./Canada Management Area for GB yellowtail flounder was specified at 1,617 mt, by the 2009 interim final rule. Once the available TAC for Eastern GB cod, Eastern GB haddock, or GB yellowtail flounder is projected to be caught, the Administrator, Northeast Region, NMFS (Regional Administrator) is required to close the Eastern U.S./Canada Area to all NE multispecies DAS vessels for the remainder of the fishing year, pursuant to § 648.85(a)(3)(iv)(E). 

                    The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to modify certain regulations governing the harvesting of fish from the U.S./Canada Management Area, including gear requirements, to prevent over-harvesting or under-harvesting the TAC allocations specified for Eastern GB cod, Eastern GB haddock, or GB yellowtail flounder in the U.S./Canada Management Area. Based upon Vessel Monitoring System                           ( print page 47119)                        (VMS) reports and other available information, the TACs for Eastern GB cod and GB yellowtail flounder would be fully harvested before the end of FY 2009, resulting in the premature closure of the Eastern U.S./Canada Area and the potential under-harvest of the available TAC for Eastern GB haddock during FY 2009. Requiring trawl vessels to use either a haddock separator trawl or a Ruhle trawl is expected to reduce the catch rates of both cod and yellowtail flounder, reduce discards, and result in the achievement of the TACs, without exceeding them. Based on this information, the Regional Administrator is prohibiting the use of flounder trawl nets by any limited access NE multispecies vessel fishing in the Eastern U.S./Canada Area under a NE multispecies DAS, to reduce catches and discards of Eastern GB cod and GB yellowtail flounder, effective September 17, 2009, through April 30, 2010.                

## Classification

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

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because notice, comment, and a delayed effectiveness would be impracticable and contrary to the public interest. The regulations under § 648.85(a)(3)(iv)(D) grant the Regional Administrator the authority to modify gear requirements to prevent over-harvesting or underharvesting the TAC allocation. Because of the time necessary to provide for prior notice and opportunity for public comment, NMFS would be prevented from taking immediate action to slow the catch rate of GB cod in the Eastern U.S./Canada Area. Such a delay would allow the observed high catch rate of GB cod to continue and would result in excessive discards of GB cod, the premature closure of the Eastern U.S./Canada Area for the remainder of the fishing year, and the potential under-harvest of the available TAC specified for GB haddock. Excessive discards of GB cod caused by a delayed implementation of this action could potentially increase mortality on this overfished stock and undermine the conservation objectives of Amendment 13 to the FMP, and the Magnuson-Stevens Act. If implementation of this action is delayed, the NE multispecies fishery could be prevented from fully harvesting the TAC for GB haddock during FY 2009. Under-harvesting this TAC would result in increased economic impacts to the industry, and social impacts beyond those analyzed in Amendment 13, as the full potential revenue from the available Eastern GB haddock would not be realized.

                    The rate of harvest of the Eastern GB cod and GB yellowtail flounder TACs in the U.S./Canada Management Area are updated weekly on the internet at                     *http://www.nero.noaa.gov*. Accordingly, the public is able to obtain information that would provide at least some advanced notice of a potential action to provide additional opportunities to the NE multispecies industry to fully harvest the TAC for any species during FY 2009. Further, the Regional Administrator's authority to modify gear requirements in the U.S./Canada Management Area to help ensure that the shared U.S./Canada stocks of fish are harvested, but not exceeded, was considered and open to public comment during the development of Amendment 13 to the FMP and Framework Adjustment 42 to the FMP. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors.                

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

Dated: September 10, 2009.

Alan D. Risenhoover,

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

[FR Doc. E9-22170 Filed 9-10-09; 4:15 pm]

BILLING CODE 3510-22-S