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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No.070817467-8554-02]
          - RIN 0648-XP59

# AGENCY:

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

# ACTION:

Temporary rule; closure.

# SUMMARY:

NMFS announces that the Elephant Trunk Scallop Access Area (ETAA) is closed effective 0001, June 1, 2009, to general category scallop vessels for the remainder of the 2009 fishing year. This action is based on the determination that allowing the ETAA to remain open when the Quarter II LAGC IFQ fishery opens on June 1, 2009, will result in an overrun of trip and catch quotas for that access area. This action is being taken to prevent the allocation of general category trips in the ETAA from being exceeded during the 2009 fishing year, in accordance with the regulations implementing Framework 19 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management Act.

# DATES:

The closure of the ETAA to all general category scallop vessels is effective 0001, June 1, 2009, through February 28, 2010.

# FOR FURTHER INFORMATION CONTACT:

Don Frei, Fishery Management Specialist, (978) 281-9221, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

                    Regulations governing fishing activity in the Sea Scallop Access Areas are found at §§ 648.59 and 648.60. Regulations specifically governing general category scallop vessel operations in the ETAA are specified at § 648.59(e)(4)(ii). These regulations authorize vessels issued a valid general category scallop permit to fish in the ETAA under specific conditions, including a total of 1,964 trips that may be taken by general category vessels during the 2009 fishing year. The regulations at § 648.59(e)(4)(ii) require the ETAA to be closed to general category scallop vessels once the                           ( print page 26590)                        Northeast Regional Administrator has determined that the allowed number of trips are projected to be taken.                 

Based on VMS declaration and analysis of fishing effort through May 15, 2009, 1,826 trips were completed by general category scallop vessels fishing in the ETAA, leaving 138 allotted trips when the Quarter II LAGC IFQ fishery opens on June 1, 2009. It is projected that the remaining 138 allocated trips would be taken by June 2, 2009, based on an average number of trips per day to date. This would result in only a 24-hour opening of the ETAA. A 24-hour opening could create a derby fishery situation, which would likely result in an overrun of the trip and catch quota, and could also create unsafe conditions for LACG IFQ vessels. Therefore, as of 0001, June 1, 2009, the ETAA is closed and will remain closed for the remainder of the 2009 fishing year, in accordance with the regulations at § 648.59(e)(4)(ii) to all general category scallop vessels.

## Classification

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

This action closes the ETAA to all general category scallop vessels, as of 0001, June 1,2009, for the remainder of the 2009 fishing year. The regulations at § 648.59(e)(4)(ii) allow such action to ensure that general category scallop vessels do not take more than their allocated number of trips in the ETAA. The ETAA opened for the 2009 fishing year at 0001 hours on March 1, 2009. Data indicating the general category scallop fleet has taken all of the ETAA trips have only recently become available. To allow general category scallop vessels to continue to take trips in the ETAA during the period necessary to publish and receive comments on a proposed rule would result in vessels taking much more than the allowed number of trips in the ETAA. Excessive trips and harvest from the ETAA would result in excessive fishing effort in the ETAA, where effort controls are critical, thereby undermining conservation objectives of the FMP. Should excessive effort occur in the ETAA, future management measures would need to be more restrictive. Based on the above, under 5 U.S.C. 553(d)(3), proposed rulemaking is waived because it would be impracticable and contrary to the public interest to allow a period for public comment. Furthermore, for the same reasons, there is good cause under 5 U.S.C 553(d)(3) to waive the 30-day delayed effectiveness period for this action.

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

Dated: May 29, 2009

Kristen C. Koch,

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

[FR Doc. E9-12930 Filed 5-29-09; 4:15 pm]

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