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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 071004577-8124-02]
          - RIN 0648-XO25

# AGENCY:

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

# ACTION:

Temporary rule; closure.

# SUMMARY:

NMFS announces a temporary closure of the Eastern U.S./Canada Area to limited access NE multispecies days-at-sea (DAS) vessels. Based upon Vessel Monitoring System (VMS) reports and other available information, the Administrator, Northeast Region, NMFS (Regional Administrator) has projected that 100 percent of the total allowable catch (TAC) of Georges Bank (GB) cod allocated to be harvested from the Eastern U.S./Canada Area would be harvested in the next few days, if current catch rates continue. This action is being taken to prevent the 2008 TAC for GB cod in the Eastern U.S./Canada Area from being exceeded during the 2008 fishing year in accordance with the regulations implemented under Amendment 13 to the NE Multispecies Fishery Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management Act.

# DATES:

The temporary closure of the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels is effective 0001 hr April 16, 2009, through 2400 hr local time, April 30, 2009.

# FOR FURTHER INFORMATION CONTACT:

Douglas Potts, Fishery Policy Analyst, (978) 281-9341, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

Regulations governing the GB cod landing limit within the Eastern U.S./Canada Area are found at (§ 648.85(a)(3)(iv)(A) 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 Eastern GB cod for the 2008 fishing year (May 1, 2008-April 30, 2009) was set at 667 mt (73 FR 16572, March 28, 2008), a 35-percent increase from the TAC for the 2007 fishing year.

The regulations at (§ 648.85(a)(3)(iv)(D) authorize the Administrator, Northeast (NE) Region, NMFS (Regional Administrator), to increase or decrease the trip limits in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation. The default landing limit of Eastern GB cod for NE multispecies DAS vessels fishing in the Eastern U.S./Canada Area is 500 lb (226.8 kg) per DAS, or any part of a DAS, up to 5,000 lb (2,268 kg) per trip. NMFS published a temporary rule on December 23, 2008 (73 FR 78659), increasing the landing limit for Eastern GB cod to 1,000 lb (453.6 kg) per DAS, or any part of a DAS, up to 10,000 lb (4,535.9 kg) per trip. The limit was subsequently decreased on March 9, 2009, to 500 lb per DAS, or any part of a DAS, up to 5,000 lb per trip, as the TAC was expected to be achieved by early April, prior to the conclusion of the 2008 fishing year.

                    Based upon VMS daily catch reports and other available information, the 2008 TAC is projected to be achieved if the Eastern U.S./Canada Area is closed immediately. Therefore, to ensure that the TAC for GB cod will not be exceeded, the Eastern U.S./Canada Area is closed to all limited access NE                           ( print page 17908)                        multispecies DAS vessels, effective 0001 hr April 16, 2009, pursuant to (§ 648.85(a)(3)(iv)(E), through the end of the 2008 fishing year (April 30, 2009).                 

Vessel owners that have made a correct VMS declaration indicating their intention to fish in the Eastern U.S./Canada Area, and crossed the demarcation line prior to 0001 hr April 16, 2009 may continue to fish for the remainder of their trip in the Eastern U.S./Canada Area. Vessels that are currently declared into the Eastern U.S./Canada Area and have already (flexed out( or (flexed west,( may not reenter the Eastern U.S./Canada Area after 0001 hr April 16, 2009. Any vessel that leaves the Eastern U.S./Canada Area after 0001 hr April 16, 2009 is prohibited from reentering the Eastern U.S./Canada Area for the remainder of the fishing year, unless otherwise notified. 

## 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)(3)(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 prior notice and comment and a delayed effectiveness would be impracticable and contrary to the public interest. This action will temporarily close the Eastern U.S./Canada Area to NE multispecies DAS vessels. This action is necessary to prevent the Eastern U.S./Canada Area GB cod TAC from being exceeded during the 2008 fishing year. Because of the rapidly increasing GB cod harvest rate, and the small GB cod TAC, it is projected that 102 percent of the GB cod TAC will be harvested if the Eastern U.S./Canada Area is closed immediately. This projection was not available until April 13, 2009. 

This action is required by the regulations at (§ 648.85(a)(3)(iv)(E) to prevent over-harvesting the U.S./Canada Management Area TACs. The time necessary to provide for prior notice, opportunity for public comment, and delayed effectiveness for this action would prevent the agency from taking immediate action to halt the catch of GB cod in the Eastern U.S./Canada Area and prevent the Eastern U.S./Canada Area GB cod TAC from being exceeded prior to the end of the 2008 fishing year. To allow vessels to continue directed fishing effort on GB cod and GB haddock during the period necessary to publish and receive comments on a proposed rule could allow the GB cod harvest to exceed the GB cod TAC for the 2008 fishing year. Exceeding the 2008 TAC for GB cod would increase mortality of this overfished stock beyond that evaluated during the development of Amendment 13, resulting in decreased revenue for the NE multispecies fishery, increased negative economic impacts to vessels operating in the Eastern U.S./Canada Area, a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock. Exceeding the 2008 GB cod TAC would also necessitate that any overage of the GB cod TAC during the 2008 fishing year be deducted from the GB cod TAC for the 2009 fishing year. Reducing the 2009 TAC due to exceeding the 2008 TAC caused by delaying this action, therefore, would create an unnecessary burden on the fishing industry and further negative economic and social impacts that were not previously considered. 

                    The public is able to obtain information on the rate of harvest of the Eastern GB cod TAC via the NMFS Northeast Regional Office website (                    *http://www.nero.noaa.gov*), which provides at least some advanced notice of a potential action to prevent the TAC for Eastern GB cod from being exceeded during the 2008 fishing year. Further, the potential for this action was considered and open to public comment during the development of Amendment 13 and Framework 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: April 15, 2009.

Kristen C. Koch,

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

[FR Doc. E9-8990 Filed 4-15-09; 4:15 pm]

BILLING CODE 3510-22-S