08-343. Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Prohibition on the Possession of Yellowtail Flounder in the U.S./Canada Management Area

AGENCY:

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

ACTION:

Temporary rule; possession prohibition.

SUMMARY:

NMFS announces that 100 percent of the Georges Bank (GB) yellowtail flounder Total Allowable Catch (TAC) has been harvested, and that the Administrator, Northeast (NE) Region, NMFS (Regional Administrator), is prohibiting the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and maintaining the Eastern U.S./Canada Area closure to limited access NE multispecies days-at-sea (DAS) vessels for the remainder of the 2007 fishing year (through April 30, 2008). This action is being taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), is required by the regulations implementing Amendment 13 to the NE Multispecies Fishery Management Plan (FMP), and is intended to prevent over-harvest of the TAC for GB yellowtail flounder during the 2007 fishing year.

DATES:

Effective 0001 hours local time January 24, 2008, through April 30, 2008.

FOR FURTHER INFORMATION CONTACT:

Mark Grant, Fishery Management Specialist, [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid Federal 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 2007 fishing year is 900 mt. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limit in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation . The regulations at § 648.85(a)(3)(iv)(C)(3) require the Regional Administrator to prohibit the harvesting, possession, and the landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area and close the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year when 100 percent of the GB yellowtail flounder TAC is projected to be caught.

Based upon the reduced 2007 TAC for GB yellowtail flounder (a 43-percent reduction from 2006), the GB yellowtail flounder trip limit was initially set at 3,000 lb (1,361 kg) per trip to prevent over-harvest during the 2007 fishing year, and to prevent a premature closure of the Eastern U.S./Canada Area, which could result in reduced opportunities to fish for GB cod and GB haddock in the Eastern U.S./Canada Area. On November 27, 2007, the GB yellowtail flounder trip limit was increased to 7,500 lb (3,402 kg) because the 3,000-lb trip (1,361-kg) limit was projected to result in under-harvest of the TAC. The 7,500-lb (3,402-kg) trip limit resulted in an unpredicted high rate of GB yellowtail flounder landings, markedly different from the historical fishing patterns that formed the basis of the projection. On January 10, 2008, the GB yellowtail flounder trip limit was decreased to 1,500 lb (680 kg) from 7,500 lb (3,402 kg) because the rapid catch rate observed since implementing the 7,500-lb (3,402-kg) GB yellowtail flounder trip limit (33 percent of the TAC was caught between December 6, 2007, and January 3, 2008) was projected to result in the TAC being achieved on January 23, 2008.

Based on Vessel Monitoring System data and other available information, as of January 17, 2008, 100 percent of the GB yellowtail flounder TAC has been caught. Based on this information, the Regional Administrator, in accordance with the regulations at § 648.85(a)(3)(iv)(C)(3), is prohibiting the harvesting, possession, and the landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and closes the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year effective 0001 hours local time January 24, 2008, through April 30, 2008.

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 prohibits the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area and closes the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year (through April 30, 2008). This action is being taken to prevent the GB yellowtail flounder TAC from being exceeded during the 2007 fishing year. This action is required by the regulations at 50 CFR 648.85(a)(3)(iv)(C)(3) and is non-discretionary. Since 100 percent of the GB yellowtail flounder TAC is projected to have been harvested as of January 17, 2008, there is insufficient time to allow for public notice, comment, and delayed effectiveness before the TAC will be exceeded.

It was not possible to take this action earlier to provide more time for public comment because of the rapidly increasing GB yellowtail flounder harvest rate, the reduced GB yellowtail flounder TAC, and the ability of NMFS to monitor the harvest (the estimate that 100 percent of the GB yellowtail flounder TAC had been harvested was not available until January 17, 2008). Exceeding the 2007 TAC for GB yellowtail flounder would increase mortality of this overfished stock beyond that evaluated during the development of Amendment 13 to the FMP, resulting in decreased revenue for the NE multispecies fishery, increased economic impacts to vessels operating in the U.S./Canada Management Area, a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock.

The potential of prohibiting the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and closure of the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels, for the remainder of the 2007 fishing year was announced to the public when the 1,500-lb (680-kg) trip limit was implemented on January 10, 2008. The public is able to obtain information on the rate of harvest of the GB yellowtail flounder TAC via the 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 GB yellowtail flounder from being exceeded during the 2007 fishing year. Further, the Regional Administrator's authority to prohibit the harvest, possession, and landing of GB yellowtail flounder by all federally permitted vessels within the entire U.S./Canada Management Area, and close the Eastern U.S./Canada Area to limited access NE multispecies DAS vessels for the remainder of the 2007 fishing year, to ensure the shared U.S./Canada stocks of fish are not exceeded 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: January 23, 2008.

Emily H. Menashes,

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