Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Secretarial Final Interim Action, 10513-10515 [E9-5191]
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10513
Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations
rwilkins on PROD1PC63 with RULES
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
VerDate Nov<24>2008
16:30 Mar 10, 2009
Jkt 217001
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.
PO 00000
Frm 00059
Fmt 4700
Sfmt 4700
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 1,2propanediol, 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.
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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: https://
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 https://
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.
VerDate Nov<24>2008
16:30 Mar 10, 2009
Jkt 217001
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
PO 00000
Frm 00060
Fmt 4700
Sfmt 4700
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.
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Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations
rwilkins on PROD1PC63 with RULES
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.
VerDate Nov<24>2008
16:30 Mar 10, 2009
Jkt 217001
10515
List of Subjects in 50 CFR Part 648
DEPARTMENT OF COMMERCE
Fisheries, Fishing, Reporting and
recordkeeping requirements.
National Oceanic and Atmospheric
Administration
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
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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
E:\FR\FM\11MRR1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 46 (Wednesday, March 11, 2009)]
[Rules and Regulations]
[Pages 10513-10515]
From the Federal Register Online via the Government Printing 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:
Electronic Submissions: Submit all electronic public
comments via the Federal e-rulemaking portal: https://
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 https://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
