Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations 10513 

2,5-furandione from the requirement of 

a tolerance will be safe. 

X. Statutory and Executive Order 

Reviews 

This final rule establishes a tolerance 

under section 408(d) of FFDCA in 

response to a petition submitted to the 

Agency. The Office of Management and 

Budget (OMB) has exempted these rules 

from review under Executive Order 

12866, entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993). 

Because this final rule has been 

exempted from review under Executive 

Order 12866, this final rule is not 

subject to Executive Order 13211, 

entitled Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001) or Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This final rule does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., nor does it involve any technical 

standards that would require Agency 

consideration of voluntary consensus 

standards pursuant to section 12(d) of 

the National Technology Transfer and 

Advancement Act of 1995 (NTTAA), 

Public Law 104–113, section 12(d) (15 

U.S.C. 272 note). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. 

This final rule directly regulates 

growers, food processors, food handlers, 

and food retailers, not States or tribes, 

nor does this action alter the 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of section 408(n)(4) of FFDCA. As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes, or otherwise have any unique 

impacts or local governments. Thus, the 

Agency has determined that Executive 

Order 13132, entitled Federalism (64 FR 

43255, August 10, 1999) and Executive 

Order 13175, entitled Consultation and 

Coordination with Indian Tribal 

Governments (65 FR 67249, November 

9, 2000) do not apply to this final rule. 

In addition, this final rule does not 

impose any enforceable duty or contain 

any unfunded mandate as described 

under Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Public 

Law 104–4). 

Although this action does not require 

any special considerations under 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994), EPA seeks to 

achieve environmental justice, the fair 

treatment and meaningful involvement 

of any group, including minority and/or 

low-income populations, in the 

development, implementation, and 

enforcement of environmental laws, 

regulations, and policies. As such, to the 

extent that information is publicly 

available or was submitted in comments 

to EPA, the Agency considered whether 

groups or segments of the population, as 

a result of their location, cultural 

practices, or other factors, may have 

atypical or disproportionately high and 

adverse human health impacts or 

environmental effects from exposure to 

the pesticide discussed in this 

document, compared to the general 

population. 

XI. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this rule in the Federal 

Register. This rule is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: February 12, 2009. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In §180.960, the table is amended 

by adding alphabetically the following 

polymer to read as follows: 

§ 180.960 Polymers; exemptions from the 

requirement of a tolerance. 

* * * * * 

Polymer CAS No. 

*****

2-Propenoic acid, 

monoester with 1,2- 

propanediol, polymer with a-[4- 

(ethenyloxy) butyl]- 

w-hydroxypoly (oxy1,2-ethanediyl) and 

2,5-furandione, 

minimum number 

average molecular 

weight (in amu), 

25,000.

955015-23-3 

*****

[FR Doc. E9–5293 Filed 3–10–09; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090224229–9245–01] 

RIN 0648–AX72 

Fisheries of the Northeastern United 

States; Northeast Multispecies 

Fishery; Secretarial Final Interim 

Action 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final interim rule; temporary 

suspension of regulations and request 

for comments. 

SUMMARY: In response to February 17, 

2009, and February 23, 2009, Court 

Orders, issued by the U.S. District 

Court, District of Massachusetts, NMFS 

is temporarily suspending specific 

regulations implemented under 

Framework Adjustment (FW) 42 to the 

Northeast (NE) Multispecies Fishery 

Management Plan (FMP); namely 

differential days-at-sea (DAS) counting 

in the Gulf of Maine (GOM) and 

Southern New England (SNE). In 

addition, and also in response to the 

February 17, 2009, Court Order, NMFS 

is extending, by 30 days, the fishing 

year 2008 March 1 deadline for 

submission of DAS leasing applications. 


rwilkins on PROD1PC63 with RULES
10514 Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations 

DATES: Section 648.82(e)(2) is stayed 

effective March 6, 2009, through April 

10, 2009, and the amendment to 

§ 648.82(k)(3) introductory text is 

effective March 6, 2009, through March 

31, 2009. Comments must be received 

by April 10, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AX72, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-rulemaking portal: http:// 

www.regulations.gov. 

• Mail: Paper, disk, or CD-ROM 

comments should be sent to Patricia A. 

Kurkul, Regional Administrator, 

National Marine Fisheries Service, 55 

Great Republic Drive, Gloucester, MA 

01930–2276. Mark the outside of the 

envelope: ‘‘Comments on NE 

Multispecies Final Interim Rule to 

Temporary Suspend Differential DAS.’’ 

• Fax: (978) 281–9135. 

Instructions: All comments received 

are part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter ‘‘N/A’’ in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF formats only. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Warren, Fishery Policy Analyst, 

(978) 281–9347, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Amendment 13, implemented on April 

27, 2004 (69 FR 22906), brought the 

FMP into conformance with the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requirements, 

including measures to end overfishing 

and rebuild all overfished groundfish 

stocks. In addition, Amendment 13 

established a biennial FMP adjustment 

process that requires the New England 

Fishery Management Council (Council) 

to review the fishery periodically using 

the most recent scientific information 

available, recommend target total 

allowable catches (TACs), and 

recommend to the Regional 

Administrator any changes to 

management measures necessary to 

achieve the goals and objectives of the 

FMP. 

Pursuant to this biennial adjustment, 

and the August 2005 stock assessment 

updates of the 19 stocks managed under 

the FMP (GARM II; Northeast Fisheries 

Science Center Reference Document 05– 

130), the Council developed 

management measures under FW 42 to 

reduce fishing mortality rates on six 

groundfish stocks that were identified as 

overfished in Amendment 13, in order 

to maintain compliance with the 

rebuilding program of the FMP. In 

addition, FW 42 included a rebuilding 

program for Georges Bank (GB) 

yellowtail flounder, and implemented 

target TACs, as well as incidental catch 

TACs, for fishing years 2006, 2007, and 

2008. FW 42 also continued to 

authorize, as well as modify, specific 

management measures that helped to 

mitigate the economic and social 

impacts of the FMP. 

FW 42 (71 FR 62156, October 23, 

2006) became effective on November 22, 

2006, and included the following 

management measures: Recreational 

restrictions; a vessel monitoring system 

(VMS) requirement for all groundfish 

DAS vessels; differential DAS counting 

in a portion of the GOM and SNE areas; 

commercial trip limits; renewal of the 

Regular B DAS Program; renewal of the 

DAS Leasing Program; renewal and 

modification of the Eastern U.S./Canada 

Haddock SAP; authorization of the GB 

Cod Fixed Gear Sector; modification of 

the Closed Area I Hook Gear Haddock 

SAP; modification of the Eastern U.S./ 

Canada Management Area regulations to 

provide increased flexibility; 

modification of the DAS Transfer 

Program; standardization of 

requirements and gear performance 

incentives for the Special Management 

Programs; modification of the cod 

landing limit in the Eastern U.S./Canada 

Area; and modification of the SNE/MidAtlantic Regulated Mesh Area mesh 

requirement. 

On November 21, 2006, the 

Commonwealth of Massachusetts and 

the State of New Hampshire filed a legal 

challenge of FW 42 and requested that 

it should be vacated on the basis that it 

violated several provisions of the 

Magnuson-Stevens Act, including 

National Standard 1. With respect to the 

National Standard 1 challenge, plaintiffs 

alleged that the Agency did not 

adequately consider the applicability of 

the mixed-stock exception in approving 

FW 42. As a result, plaintiffs claim that 

FW 42 measures, such as the 2:1 DAS 

counting provision, was overly strict. 

On January 26, 2009, the U.S. District 

Court, District of Massachusetts, in the 

case of Commonwealth of 

Massachusetts and State of New 

Hampshire v. Carlos M. Gutierrez (Civil 

Action No. 06–12110–EFH), issued a 

Memorandum and Order that 

temporarily suspended FW 42, 

‘‘pending serious consideration and 

analysis’’ of the mixed-stock exception. 

In its January 26, 2009, Order, the Court 

agreed with the Secretary of Commerce 

(Secretary) that the Guidelines are 

advisory, and stated that it believed that 

‘‘prudent agency administration dictates 

that Commerce at least seriously 

consider and analyze the Mixed-Stock 

Exception, which Commerce admits that 

it did not do.’’ The Court ordered that 

‘‘this review process shall be completed 

no later than sixty (60) days from the 

date of this order, on which date, or 

sooner, Commerce shall file a report of 

its findings with the court.’’ 

On February 2, 2009, the Secretary of 

Commerce filed two motions: A motion 

to alter or amend the Court’s Order to 

lift the suspension of the FW 42 

measure; and a motion to stay the 

temporary suspension of FW 42 pending 

resolution of the motion to alter or 

amend. On February 2, 2009, the Court 

denied the Secretary’s motion to stay. 

On February 13, 2009, the 

Commonwealth of Massachusetts and 

State of New Hampshire opposed, in 

part, the Secretary’s February 2, 2009, 

motion to alter or amend and asked the 

Court to modify its Order by reinstating 

all FW 42 measures, except differential 

DAS counting (2:1 counting of DAS) in 

the GOM. The plaintiffs also requested 

that the March 1, 2009, deadline for 

submitting DAS leasing application to 

NMFS be extended by 30 days. 

On February 17, 2009, the U.S. 

District Court of Massachusetts issued a 

second Order granting, in part, the 

Secretary’s February 2, 2009, motion to 

alter or amend. Specifically, the 

February 17, 2009, Court Order 

reinstated FW 42, with the exception of 

2:1 differential DAS counting and 

specified that differential DAS counting 

should remain suspended for 38 days 

from the date of the Order; i.e., through 

March 27, 2009. In addition, the Court 

ruled that the March 1, 2009, deadline 

for submitting applications for the DAS 

Leasing Program be extended by 30 

days, i.e., March 31, 2009. 

On February 19, 2009, NMFS filed an 

analysis of the mixed-stock exception 

with the Court which essentially 

concluded that this exception was not a 

viable alternative to consider or to 

implement in FW 42 because it could 

not be shown, in either the 1998 and 

2009 National Standard 1 guidelines, 

that the threshold criterion regarding 

rebuilding programs specified for the 

mixed-stock exception would have been 

met. 


rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations 10515 

On February 23, 2009, the Court 

issued a third Order, extending the 

suspension of differential DAS counting 

through April 10, 2009, to allow the 

Council time to review NMFS analysis 

of the mixed-stock exception, as 

submitted to the Court on February 19, 

2009, as submitted to the Council 

during it’s regularly scheduled April 

2009 meeting. 

In response to the February 17, 2009, 

and February 23, 2009, Court Orders, 

NMFS, through this final interim rule, is 

issuing a temporary suspension of the 

FW 42 differential DAS counting 

regulations through April 10, 2009, and 

extending the fishing year 2008 March 

1 deadline for submission of DAS 

leasing applications to March 31. 

Classification 

It has been determined that this rule 

is ‘‘not significant’’ for purposes of E.O. 

12866. 

The Administrator, Northeast Region, 

NMFS, determined that the temporary 

suspension of differential DAS counting 

implemented through this final interim 

rule is necessary in order to comply 

with the Court Order. Therefore, this 

action represents a non-discretionary 

modification to the FMP, as required by 

a Court Order, 

Pursuant to 5 U.S.C. 553(b)(B), the 

Assistant Administrator of Fisheries 

(AA) finds good cause to waive prior 

notice and opportunity for public 

comment. Prior notice and opportunity 

for public comment are impracticable, 

as NMFS is required by court order to 

immediately implement these changes, 

and has no discretion in making these 

modifications to the rule. For the same 

reason, the AA finds good cause to 

waive the 30–day delay in the effective 

date under 5 U.S.C. 553(d)(3). 

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. 

It has been determined that the 

Environmental Assessment/Finding of 

No Significant Impact statement 

prepared for FW 42 remains applicable 

and that the scope of this action falls 

within the range of measures previously 

analyzed. This final interim rule has 

been determined to be not significant for 

the purposes of Executive Order (E.O.) 

12866. This final interim rule does not 

contain policies with Federalism or 

‘‘takings’’ implications as those terms 

are defined in E.O. 13132 and E.O. 

12630, respectively. This final interim 

rule does not contain any new 

recordkeeping or reporting 

requirements. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: March 5, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons stated in the preamble, 

50 CFR part 648 is amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.82, paragraph (e)(2) is 

stayed effective March 6, 2009, through 

April 10, 2009, and paragraph (k)(3) 

introductory text is revised to read as 

follows: 

§ 648.82 Effort-control program for NE 

multispecies limited access vessels. 

* * * * * 

(k) * * * 

(3) Application to lease NE 

multispecies DAS. To lease Category A 

DAS, the eligible Lessor and Lessee 

vessel must submit a completed 

application form obtained from the 

Regional Administrator. The application 

must be signed by both Lessor and 

Lessee and be submitted to the Regional 

Office at least 45 days before the date on 

which the applicants desire to have the 

leased DAS effective. The Regional 

Administrator will notify the applicants 

of any deficiency in the application 

pursuant to this section. Applications 

may be submitted at any time prior to 

the start of the fishing year or 

throughout the fishing year in question, 

up until the close of business on March 

1, unless otherwise specified in the this 

paragraph (k)(3). For the 2009 fishing 

year, applications may be submitted up 

until the close of business on March 31. 

Eligible vessel owners may submit any 

number of lease applications throughout 

the application period, but any DAS 

may only be leased once during a 

fishing year. 

* * * * * 

[FR Doc. E9–5191 Filed 3–6–09; 4:15 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 0401120010–4114–02] 

RIN 0648–XN66 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

(NE) Multispecies Fishery; Modification 

of the Yellowtail Flounder Landing 

Limit for the U.S./Canada Management 

Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; increase of 

landing limit. 

SUMMARY: This action increases the 

Georges Bank (GB) yellowtail flounder 

trip limit to 5,000 lb (2,268 kg) for NE 

multispecies days-at-sea (DAS) vessels 

fishing in the U.S./Canada Management 

Area. This action is authorized by the 

regulations implementing Amendment 

13 to the NE Multispecies Fishery 

Management Plan (FMP) and is 

intended to increase the likelihood of 

harvesting the total allowable catch 

(TAC) for GB yellowtail flounder 

without exceeding it during the 2008 

fishing year. This action is being taken 

to allow vessels to fully harvest the 

TACs for transboundary stocks of GB 

cod, haddock, and yellowtail flounder 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

DATES: Effective 0001 hours March 9, 

2009, through April 30, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Allison Murphy, Fishery Management 

Specialist, (978) 281–9122, fax (978) 

281–9135. 

SUPPLEMENTARY INFORMATION: 

Regulations governing the GB yellowtail 

flounder landing limit within the U.S./ 

Canada Management Area are found at 

50 CFR 648.85(a)(3)(iv)(C) and (D). The 

regulations authorize vessels issued a 

valid limited access NE multispecies 

permit and fishing under a NE 

multispecies DAS to fish in the U.S./ 

Canada Management Area, as defined at 

§ 648.85(a)(1), under specific 

conditions. The TAC for GB yellowtail 

flounder for the 2008 fishing year (May 

1, 2008 - April 30, 2009) was set at 1,950 

mt (73 FR 16572, March 28, 2008), a 


rwilkins on PROD1PC63 with RULES