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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 622
          - [Docket No. 040205043-4043-01]
          - RIN 0648-XK40

# AGENCY:

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

# ACTION:

Temporary rule; reopening.

# SUMMARY:

NMFS reopens the commercial fishery for deepwater grouper (misty grouper, snowy grouper, yellowedge grouper, warsaw grouper, and speckled hind) and tilefishes in the exclusive economic zone (EEZ) of the Gulf of Mexico. NMFS previously determined that the quotas for these commercial fisheries would be reached by May 10, 2008. The latest estimates for deepwater grouper and tilefish landings indicate the quotas were not reached by that date. Consequently, NMFS will reopen these fisheries for 10 days. The purpose of this action is to allow the fisheries to maximize harvest benefits and at the same time protect the deepwater grouper and tilefish resources.

# DATES:

The reopening is effective 12:01 a.m., local time, November 1, 2008, until 12:01 a.m., local time, on November 11, 2008. The fisheries will then be closed until 12:01 a.m., local time, January 1, 2009.

# FOR FURTHER INFORMATION CONTACT:

                        Susan Gerhart, telephone 727-824-5305, fax 727-824-5308, e-mail                         *Susan.Gerhart@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Those regulations set the commercial quota for deepwater grouper in the Gulf of Mexico at 1.02 million lb (463,636 kg) and for tilefish in the Gulf of Mexico at 440,000 lb (200,000 kg) for the current fishing year, January 1 through December 31, 2008.

                    Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect with the Office of the                     **Federal Register**                    . NMFS projected the fisheries for deepwater grouper and tilefishes would reach their respective quotas on May 10, 2008, and closed the fisheries on that date (73 FR 24883, May 6, 2008). Based on current statistics, NMFS has determined that only 89 percent of the available commercial quotas for deepwater grouper and tilefishes were landed. Based on 2008 daily landings rates and the pounds remaining on each quota (approximately 100,000 lb (45,359 kg) for deepwater grouper and 46,000 lb (20,865 kg) for tilefishes), NMFS has determined these fisheries can reopen for 10 days. Accordingly, NMFS is reopening the commercial deepwater grouper and tilefish fisheries in the Gulf of Mexico EEZ from 12:01 a.m., local time, on November 1, 2008, until 12:01 a.m., local time, on November 11, 2008. The fisheries will then be closed until 12:01 a.m., local time, on January 1, 2009. November 1 was chosen as the opening day based on feedback from the fishing industry and weather concerns. Many fishers indicated that this was the most productive time for the reopening. NMFS also chose to wait until after the peak of hurricane season to promote safety at sea, consistent with National Standard 10 of the Magnuson-Stevens Act.                

The operator of a vessel with a valid commercial vessel permit for Gulf reef fish may not fish for or possess deepwater grouper or tilefishes prior to 12:01 a.m., local time, November 1, 2008, and must have landed and bartered, traded, or sold such deepwater grouper or tilefishes prior to 12:01 a.m., local time, November 11, 2008.

                    During the closure, the bag and possession limits specified in 50 CFR 622.39(b) apply to all harvest or possession of deepwater grouper and tilefishes in or from the Gulf of Mexico EEZ, and the sale or purchase of deepwater grouper and tilefishes taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of deepwater grouper or tilefishes that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, November 11, 2008, and were held in cold storage by a dealer or processor. Vessels with commercial quantities of Gulf reef fish on board are prohibited from retaining a recreational bag limit of Gulf reef fish.                           ( print page 58059)                        Thus, such a vessel may only have a commercial quantity of reef fish other than deepwater grouper or tilefishes or a recreational bag limit of Gulf reef fish.                

## Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such prior notice and opportunity for public comment is unnecessary. Prior notice and opportunity for public comment on the reopening is unnecessary because the rule establishing the annual quota has already been subject to notice and comment, and all that remains is the annual administrative act of notifying the public of where harvest stands in relation to the quota, and in this case that additional time is needed to harvest the established quota. The rule contains a routine determination relative to harvest levels for the fishing year that are relatively insignificant in nature and impact to the industry and to the public as a whole.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

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

Dated: September 29, 2008.

Alan D. Risenhoover,

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

[FR Doc. E8-23582 Filed 10-3-08; 8:45 am]

BILLING CODE 3510-22-S