03-7062. Fisheries of the Northeastern United States; Northeast Multispecies Fishery

AGENCY:

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

ACTION:

Final rule; amendment to an interim final rule.

SUMMARY:

NMFS announces a correction to the August 1, 2002, interim final rule implementing restrictions specified in the Settlement Agreement Among Certain Parties (Settlement Agreement), which was ordered to be implemented by the U.S. District Court for the District of Columbia (Court) in a Remedial Order (Order) issued on May 23, 2002. The Interim Final Rule contained an inadvertent error in the coordinates defining the seasonal Gulf of Maine (GOM) Rolling Closure Area II under the Northeast (NE) Multispecies Fishery Management Plan (FMP). The intent of this action is to correct the inadvertent error to the GOM Rolling Closure Area II coordinates. This action is being taken by NMFS under the authority of section 305(c) and (d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective March 25, 2003.

FOR FURTHER INFORMATION CONTACT:

Douglas W. Christel, Fishery Management Specialist, 978-281-9141.

SUPPLEMENTARY INFORMATION:

Background

Regulations implementing the seasonal (April) GOM Rolling Closure Area II were published on May 5, 1999 (64 FR 24066), as part of the final rule implementing regulations in Framework Adjustment 27 of the NE Multispecies FMP. Since that time, no formal adjustments to this area have been approved by NMFS.

On May 23, 2002, the Court issued an Order in the case of Conservation Law Foundation, et al. v. Evans et al. (Case No. 001134 GK)(D.D.C. May 23, 2002) that the Settlement Agreement be implemented according to its terms to reduce overfishing, until the implementation of Amendment 13 to the FMP.

On August 1, 2002, NMFS published an interim final rule implementing the additional restrictions specified in the Settlement Agreement. These restrictions were intended to reduce overfishing and bycatch on species managed under the FMP, under the authority of section 305(c) of the Magnuson-Stevens Act. The August 1, 2002, interim final rule contained an inadvertent error in the coordinates defining the GOM Rolling Closure Area II at § 648.81(g)(1)(ii). The final two coordinate points for the GOM Rolling Closure Area II were erroneously defined as GM6, at 42°30' N. lat. and 68°30' W. long.; and GM9, at 42°30' N. lat. and the intersection with the Massachusetts shoreline. The correct coordinate points are GM13, at 43°00' N. lat. and 68°30' W. long.; and GM10, at 43°00' N. lat. and the intersection with the New Hampshire shoreline.

The text of the Settlement Agreement, as well as the preamble to the August 1, 2002, interim final rule, stated that all measures that were in effect prior to May 1, 2002, and that were not amended by the August 1, 2002, interim final rule, would remain in effect. The Settlement Agreement identified several measures to be undertaken to reduce fishing mortality in the NE multispecies fishery, including additional inshore closure areas during the months of May and June. However, the Settlement Agreement did not specify any changes to the April closure area as defined in Framework Adjustment 27 to the FMP. Accordingly, the August 1, 2002, interim final rule only specified that changes were made to the GOM Rolling Closure Areas III and IV, for the months of May and June, respectively. The inadvertent error regarding the GOM Rolling Closure Area II occurred in the drafting of the section of the proposed rule to implement the changes to Areas III and IV. In the proposed rule, the subparagraph relating to Area II was included merely to provide the full context of the changes to Areas III and IV. In the process of including the Area II subparagraph, the incorrect coordinates were inadvertently specified.

Accordingly, this rule amends the interim final rule by correcting the erroneous coordinate points by replacing points GM6 and GM9 with points GM13 and GM10. Advisory letters that were sent to current NE multispecies permit holders explaining the changes to the regulations based upon the August 1, 2002, interim final rule included a map that correctly depicted the GOM Rolling Closure Area II.

Classification

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive the requirement to provide prior notice and the opportunity for public comment on this amendment to an interim final rule to correct the coordinates defining the GOM Rolling Closure Area II as published in the August 1, 2002, interim final rule, pursuant to authority set forth at 5 U.S.C. 553(b)(B), because such procedures would be impracticable and contrary to the public interest. This action is necessary to protect groundfish, in particular, GOM cod, during the April season within the GOM Rolling Closure Area II, as initially intended in Framework Adjustment 27.

NMFS is required pursuant to a Settlement Agreement that was subsequently ordered to be implemented by the U.S. District Court for the District of Columbia to ensure that certain status quo measures are implemented through the August 1, 2002, interim final rule. Rolling Closure Area II is one of the status quo measures reflected in the Settlement Agreement and is expected to take effect on April 1, 2003. Because NMFS must adhere to the Settlement Agreement, it is impracticable for NMFS to provide prior notice and opportunity for public comment.

In addition, it would be contrary to the public interest to provide prior notice and opportunity for public comment because the Rolling Closure Areas serve to provide protection to a number of groundfish stocks. This closure area (i.e. Rolling Closure Area II) was originally established to protect groundfish stocks based upon the results of the 27th Annual Stock Assessment Workshop (SAW 27) of 1998. SAW 27 indicated that the GOM cod stock was collapsing. The report specified that GOM cod were overexploited, that recruitment continued to remain at record low levels, and that spawning stock biomass was projected to decline to the lowest level ever observed. Due to the critical condition of GOM cod, the New England Fishery Management Council (Council) voted to adopt management measures in Framework Adjustment 27 to reduce fishing mortality in order to prevent overfishing. Based on analyses in Framework Adjustment 27, the measures in that framework, including area closures, would meet the conservative mortality reduction needed for groundfish species. Framework Adjustment 27 was published on May 5, 1999. Rolling Closure Area II which is scheduled to take effect on April 1, 2003, serves to insure the conservation of vulnerable and depleted GOM cod stocks by reducing fishing mortality in specific inshore areas and during specific time periods considered important to the rebuilding of the species.

Moreover, the management measures contained in this amendment to an interim final rule received prior notice and public comment through the Council's framework process and the publication of a proposed rule for Framework Adjustment 27 on March 29, 1999. NMFS responded to these comments in the final rule published on May 5, 1999. Additionally, NMFS did not receive any comments on the Rolling Closure Areas in the August 1, 2002, Interim Final Rule.

Because this final rule must be made effective by April 1, 2003, consistent with the Settlement Agreement and, because of the need to maintain the conservation potential of this closure area, the AA finds good cause to waive the 30-day delay in effective date under 5 U.S.C. 553(d)(3).

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

The analytical requirements of the Regulatory Flexibility Act do not apply because this rule is not subject to prior notice and opportunity for public comment.

List of Subjects in 50 CFR part 648

• Fisheries
• Fishing
• Reporting and recordkeeping

Dated: March 19, 2003.

Rebecca Lent,

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

2. In § 648.81, paragraph (g)(1)(ii) is revised to read as follows:

§ 648.81

Closed areas.

* * * * *

(g) * * *

(1) * * *

(ii) Rolling Closure Area II. From April 1 through April 30, the restrictions specified in paragraph (g)(1) of this section apply to Rolling Closure Area II, which is the area bounded by straight lines connecting the following points in the order stated:

Rolling Closure Area II

[April 1-April 30]

Point	N. Lat.	W. Long.
GM1	42°00'	(1)
GM2	42°00'	(2)
GM3	42°00'	(3)
GM5	42°00'	68°30'
GM13	43°00'	68°30'
GM10	43°00'	(4)
1 Massachusetts shoreline.
2 Cape Cod shoreline on Cape Cod Bay.
3 Cape Cod shoreline on the Atlantic Ocean.
4 New Hampshire shoreline.

* * * * *