[Federal Register Volume 74, Number 46 (Wednesday, March 11, 2009)]
[Rules and Regulations]
[Pages 10513-10515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5191]


=======================================================================
-----------------------------------------------------------------------

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.

[[Page 10514]]


DATES:  Section 648.82(e)(2) is stayed effective March 6, 2009, through 
April 10, 2009, and the amendment to Sec.  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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-rulemaking portal: http://www.regulations.gov.
    <bullet> 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.''
    <bullet> 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/Mid-Atlantic 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.

[[Page 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.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  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:


Sec.  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