[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Proposed Rules]
[Pages 68398-68403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27337]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 080404529-81431-01]
RIN 0648-AW61


Atlantic Highly Migratory Species; Atlantic Swordfish Quotas

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would adjust the North and South Atlantic 
swordfish quotas for the 2008 fishing year (January 1, 2008, through 
December 31, 2008) to account for underharvests, and to transfer 18.8 
metric tons (mt) dressed weight (dw) to Canada per the 2006 
International Commission for the Conservation of Atlantic Tunas (ICCAT) 
recommendations 06-02 and 06-03. The North Atlantic 2008 directed 
baseline quotas plus the 2007 underharvest would be divided equally 
between the semiannual periods of January through May and June through 
December. In addition, NMFS proposes to modify the vessel chartering 
regulations to potentially allow Atlantic Highly Migratory Species 
(HMS) limited access permit (LAP) holders to charter foreign vessels 
under a chartering arrangement where catches taken would count against 
U.S. Atlantic HMS quotas or entitlements.

DATES: Comments on this proposed rule may be submitted at the public 
hearing (oral or written), or must be received via mail, or fax by 
December 18, 2008.
    The public hearing dates and times are:
    1. Monday, December 8, 4-6 p.m., Silver Spring, MD.
    2. Tuesday, December 16, 2:30-4:30 p.m., Gloucester, MA.

ADDRESSES: You may submit comments, identified by [0648-AW61], by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Fax: 301-713-1917, Attn: LeAnn Southward Hogan
     Mail: 1315 East-West Highway, Silver Spring, MD 20910
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://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). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the supporting documents including the 2007 Environmental 
Assessment (EA), Regulatory Impact Review (RIR), Final Regulatory 
Flexibility Analysis (FRFA), and the Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP) are available 
from the HMS website at http://www.nmfs.noaa.gov/sfa/hms/ or by 
contacting LeAnn Southward Hogan (see FOR FURTHER INFORMATION CONTACT).
    The public hearing locations are:
    1. Silver Spring - National Oceanic and Atmospheric Administration, 
SSMC III, room 1311B, 1301 East-West Highway, Silver Spring, MD 20910; 
and
    2. Gloucester - National Oceanic and Atmospheric Administration, 
National Marine Fisheries Service Northeast Regional Office, 55 Great 
Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: LeAnn Southward Hogan or Karyl 
Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION: The U.S. Atlantic swordfish fishery is 
managed under the 2006 Consolidated HMS FMP. Implementing regulations 
at 50 CFR part 635 are issued under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
16 U.S.C. 1801 et seq., and the Atlantic Tunas Convention Act (ATCA), 
16 U.S.C. 971 et seq. Regulations issued under the

[[Page 68399]]

authority of ATCA carry out the recommendations of ICCAT.

1. Swordfish Quota

a. North Atlantic

    ICCAT recommendation 06-02 established the current north Atlantic 
swordfish total allowable catch (TAC) of 14,000 metric tons (mt) whole 
weight (ww), through 2008. Of the 14,000 mt ww, the United States is 
allocated 3,907 mt ww (2,937.6 mt dw). This allocation is the same the 
United States received during 2004, 2005, 2006, and 2007. ICCAT 
recommendation 06-02 also limits the amount of North Atlantic swordfish 
underharvest that can be carried forward by all Contracting Parties, 
non-Contracting Cooperating Parties, Entities and Fishing Entities 
(CPCs) to 50 percent of the baseline quota allocation for 2007 and 
2008. Therefore, the United States could carryover a maximum of 1,468.8 
mt dw of underharvests from the previous year to be added to the 
baseline quota.
    This proposed rule would adjust the total available quota for the 
2008 fishing year to account for the 2007 underharvests. The 2008 North 
Atlantic swordfish baseline quota is 2,937.6 mt dw. The total North 
Atlantic swordfish underharvest for 2007 was 3,220 mt dw, which exceeds 
the maximum carryover cap of 1,468.8 mt dw. Therefore, NMFS is carrying 
forward the capped amount per the ICCAT recommendation. Thus, the 
baseline quota plus the underharvest carryover maximum of 1,468.8 mt dw 
equals an adjusted quota of 4,406.4 mt dw for the 2008 fishing year. 
The directed category would be allocated 3,601.9 mt dw that would be 
split into two seasons in 2008. The incidental category would be 
allocated 300 mt dw, and the reserve category would be reduced from a 
quota of 504.5 mt dw to 485.7 due to the transfer of 18.8 mt dw to 
Canada (Table 1).

b. South Atlantic

    ICCAT recommendation 06-03 established the South Atlantic swordfish 
TAC at 17,000 mt ww for 2007, 2008, and 2009. This TAC is slightly 
higher than that of previous years of 15,631 mt ww in 2003, 15,776 mt 
ww in 2004, 15,956 mt ww in 2005, and 16,055 mt ww in 2006. Of the 
17,000 mt ww TAC, the United States is allocated 100 mt ww (75.2 mt 
dw). As with the North Atlantic swordfish recommendation, ICCAT 
recommendation 06-03 establishes a cap on the amount of underharvest 
that can be carried forward during the defined management period (2007-
2009). For South Atlantic swordfish, the United States is limited to 
carrying forward 100 mt ww (75.2 mt dw). The 2008 South Atlantic 
swordfish baseline quota is 75.2 mt dw. The total South Atlantic 
swordfish underharvest for 2007 was 150.4 mt dw, which exceeds the 
maximum carryover cap of 75.2 mt dw. Therefore, NMFS is carrying 
forward the capped amount per ICCAT recommendation 06-03. As a result, 
the baseline quota plus the underharvest carryover maximum of 75.2 mt 
dw equals an adjusted quota of 150.4 mt dw for the 2008 fishing year 
(Table 1).

c. Impacts

    In recent years, the PLL fleet has not caught its entire swordfish 
quota, and as a result, underharvest carryovers have grown 
significantly from year to year (3,528.8 mt dw, 4,806.1 mt dw, and 
6,905.9 mt dw for 2004-2006, respectively). The proposed adjusted quota 
for the North and South Atlantic swordfish, after accounting for the 
2007 underharvests and annual transfer to Canada, would be the same in 
2008 as the 2007 adjusted quota specifically examined in the 
Environmental Assessment (EA) that was prepared for the 2007 Swordfish 
Quota Specification Final Rule published on October 5, 2007 (72 FR 
56929). The quota adjustments would not increase overall quotas and is 
not expected to increase fishing effort or protected species 
interactions beyond those considered in the EA mentioned above. 
Therefore, because there would be no changes to the swordfish 
management measures in this proposed rule, or the affected environment 
or any environmental consequences that have not been previously 
analyzed, NMFS has determined that the proposed rule and impacts to the 
human environment as a result of the quota adjustments are not 
significant and would not require additional NEPA analysis.

Table 1--Landings and Quotas for the Atlantic Swordfish Fisheries (2005
                2008) Applying the Preferred Alternatives
North Atlantic Swordfish Quota  2005       2006       2007      2008 to
 (mt dw)                                               prelimi   date
                                                       nary
================================================================
Baseline Quota                  2,937.6    2,937.6    2,937.6   2,937.6
================================================================
Quota Carried Over              3,359.1    4,691.2    1,468.8   1,468.8
================================================================
Adjusted quota                  6,296.7    7,628.8    4,406.4   4,406.4
================================================================
Quota Allocation     Directed   5,895.2    7,246.1    3,601.9   3,601.9
                      Category
                    ----------------------------------------------------
                     Incidenta  300.0      300.0      300.0     300.0
                      l
                      Category
                    ----------------------------------------------------
                     Reserve    101.5      82.7       504.5     485.7
                      Category
========================================================================
Utilized Quota       Landings   1,471.8    1,291.5    1,167.5   962.7 to
                                                                 date
                    ----------------------------------------------------
                     Reserve    18.8       18.8       18.8      18.8
                      Transfer
                      to
                      Canada
========================================================================
Total Underharvest              4,806.1    6,318.5    3,220.1   TBD
================================================================
Dead Discards                   114.9      154.9      149.2     TBD
================================================================
Carryover Available+            4,691.2    1,468.8    1,468.8   TBD
----------------------------------------------------------------
South Atlantic Swordfish Quota  2005       2006       2007      2008 to
 (mt dw)                                               prelimi   date
                                                       nary
--------------------============================================

[[Page 68400]]

 
Baseline Quota                  75.2       90.2       75.2      75.2
----------------------------------------------------------------
Quota Carried Over              319.3      394.5      75.2      75.2
----------------------------------------------------------------
Adjusted quota                  394.5      484.7      150.4     150.4
----------------------------------------------------------------
Landings                        0.0        0.0        0.0       0.0 to
                                                                 date
================================================================
Carryover Available+            394.5      75.2       75.2      75.2
------------------------------------------------------------------------

2. Vessel Chartering

    This proposed rule would also modify regulations regarding vessel 
chartering. At its 2002 annual meeting, ICCAT adopted a chartering 
recommendation (ICCAT Recommendation 02-21) allowing Contracting 
Parties to the ICCAT Convention to charter fishing vessels registered 
to responsible CPCs that explicitly agree to apply ICCAT conservation 
and management measures and enforce them on their vessels. Under such 
chartering arrangements, the chartered fishing vessels do not change 
their flag, but catches taken under the arrangement count against the 
quota or fishing possibilities of the chartering ICCAT Contracting 
Party.
    Pursuant to this recommendation, NMFS implemented regulations on 
December 6, 2004 (69 FR 70396). These regulations took a limited 
approach to chartering by allowing entities from ICCAT Contracting 
Parties to charter U.S. fishing vessels but not allowing U.S. entities 
to charter foreign vessels in the same way. Current regulations allow 
chartering arrangements between U.S. fishing vessel owners and foreign 
entities under which a U.S. fishing vessel can fish in waters beyond 
national jurisdiction without reflagging the vessel, and the U.S. 
fishing vessel's catch counts against the ICCAT quota of the 
Contracting Party of the chartering foreign entity. These regulations 
require the owner of a U.S. fishing vessel to apply for and obtain a 
chartering permit from NMFS before fishing under such a chartering 
arrangement. In addition, under these regulations, U.S. fishing vessels 
owners issued a chartering permit may not fish against U.S. Atlantic 
HMS quota or entitlements until the chartering permit expires or is 
terminated.
    When NMFS developed and implemented the current chartering 
regulations, interest was expressed in allowing U.S. fishing vessels to 
be chartered by foreign entities of an ICCAT Contracting Party and to 
allow the catch taken to count against the ICCAT Contracting Party's 
quota. However, due to legal and policy concerns related to foreign 
vessels and foreign fishing in the U.S. exclusive economic zone (EEZ) 
and little public interest in chartering arrangements where a foreign 
vessel's catch would count against U.S. Atlantic HMS quotas or 
entitlements, NMFS did not implement regulations that would allow U.S. 
entities to charter foreign vessels to catch ICCAT-managed species that 
would count against U.S. quotas.
    Since implementing the chartering regulations, there has been 
increased public interest in allowing U.S. entities to charter foreign 
vessels of ICCAT CPCs where the catch taken would count against the 
Atlantic HMS quotas or entitlements of the United States, possibly as a 
step toward revitalizing certain HMS fisheries. This type of chartering 
arrangement could also help utilize Atlantic HMS quotas and facilitate 
flexibility within the vessel chartering program, which would in turn 
enhance quota management within the Atlantic HMS fisheries. Thus, NMFS 
is proposing changes to the current chartering regulations that would 
allow U.S. chartering of foreign vessels of ICCAT CPCs to fish on the 
high seas against U.S. Atlantic HMS quota or entitlements.
    The proposed chartering regulations would establish a process and 
criteria for NMFS's evaluation of proposed chartering arrangements and 
certain limitations on such chartering arrangements. Under the proposed 
regulations, only Atlantic HMS LAP holders would be allowed to enter 
these types of chartering arrangements with foreign entities of ICCAT 
CPCs. NMFS is proposing to limit these chartering arrangements to 
Atlantic HMS LAP holders, who are allowed to harvest Atlantic HMS from 
the U.S. EEZ and on the high seas. As noted earlier, with regard to 
U.S. chartering of foreign vessels, this proposed rule would only allow 
such activities on the high seas. Under the rule as proposed, only 
those Atlantic HMS LAP holders who are currently authorized to harvest 
HMS on the high seas would be chartering vessels to, essentially, 
exercise that harvesting privilege on their behalf. This approach 
should, generally, keep any resulting chartering arrangements within 
the scope of existing analyzed effects of utilizing Atlantic HMS quotas 
on the high seas. For the duration of the chartering arrangement, the 
Atlantic HMS LAP holder would not be permitted to fish under U.S. 
Atlantic HMS quotas or otherwise utilize the LAPs themselves. In 
addition, under the proposed regulations, foreign vessel owners who 
enter into a chartering arrangement with an Atlantic HMS LAP holder 
would be required to follow all U.S. regulations that would have 
otherwise applied to the Atlantic HMS LAP holder. Lastly, the proposed 
regulations would establish data reporting requirements consistent with 
the ICCAT recommendation.
    Since implementing the chartering regulations in 2004, NMFS has 
only received three requests for chartering permits, only one of which 
was issued. NMFS has not received a specific chartering request in 
2008. Upon receipt of any such request, NMFS would conduct the 
necessary ecological, economic, and social analysis, including any 
necessary NEPA analysis, to consider the impacts of the specific 
chartering request on the HMS fishery and its participants. NMFS does 
not expect this regulatory modification to result in many additional 
requests, and NMFS does not expect these potential chartering 
arrangements to increase fishing mortality or increase fishing effort 
significantly.
    For the chartering portion of this proposed rule, NMFS has 
determined that the proposed regulatory modification is administrative 
in nature and is consistent with the 2006 Consolidated HMS FMP and its 
related Environmental Impact Statement and the ICCAT Chartering 
Recommendation. As defined in Sections 5.05 and Section 6.03c.3(i) of 
NAO 216-6, the proposed action is an amendment of existing chartering 
regulations that are administrative and technical in nature that would 
not have significant environmental impacts and for which

[[Page 68401]]

any cumulative effects are negligible. As such, it is categorically 
excluded from the need to prepare an Environmental Assessment.

3. Request for Comments

    Comments on this proposed rule may be submitted at public hearings 
(see DATES and ADDRESSES), or via mail, or fax by December 18, 2008. 
NMFS will hold two public hearings to receive comments from fishery 
participants and other members of the public regarding this proposed 
rule. These hearings will be physically accessible to people with 
disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to LeAnn Southward Hogan at (301) 
713-2347 at least 5 days prior to the hearing date.
    The public is reminded that NMFS expects participants at the public 
hearings to conduct themselves appropriately. At the beginning of each 
meeting, a representative of NMFS will explain the ground rules (e.g., 
alcohol is prohibited from the hearing room; attendees will be called 
to give their comments in the order in which they register to speak; 
the attendees should not interrupt one another). The NMFS 
representative will attempt to structure the meeting so that all 
attending member of the public will be able to comment, if they so 
choose, regardless of the controversial nature of the subject(s). 
Attendees are expected to respect the ground rules, and, if they do 
not, they will be asked to leave the meeting. For individuals unable to 
attend a hearing, NMFS also solicits written comments on this proposed 
rule (see DATES and ADDRESSES).

4. Classification

    The Acting Assistant Administrator has determined that this 
proposed rule is consistent with the Consolidated HMS FMP, the 
Magnuson-Stevens Act, ATCA, and other applicable law, subject to 
further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The certification reads:


Swordfish Quotas

    The final 2007 and 2008 North and South Atlantic swordfish 
baseline quotas were published in the Federal Register on October 5, 
2007 (72 FR 56929). This proposed rule would adjust the 2008 
baseline quotas for the North and South Atlantic swordfish fisheries 
for the 2008 fishing year (January 1, 2008, through December 31, 
2008) to account for 2007 underharvests per 50 part 635.27(c) and 
transfer 18.8 metric tons (mt) dressed weight (dw) to Canada from 
the reserve category. Consistent with Federal regulations (50 CFR 
part 635.27(c)(1)), the 2008 North Atlantic swordfish directed 
baseline quotas plus the 2007 underharvests would be divided equally 
between the semiannual periods of January through May and June 
through December, 2008. The 2007 total underharvest for North 
Atlantic swordfish was 3,220.1 mt dw and 150.4 mt dw for South 
Atlantic swordfish. However, since the underharvest carryover amount 
has been capped (for the North Atlantic swordfish at 1468.8 mt dw, 
and 75.2 mt dw for South Atlantic swordfish), the proposed 2008 
adjusted quotas for the North and South Atlantic swordfish would be 
4,406.4 mt dw and 150.4 mt dw, respectively. These 2008 adjusted 
quotas are the same as the adjusted quotas for the 2007 fishing year 
which were analyzed in the Final Regulatory Flexibility Analysis 
(EA) prepared for the 2007 Swordfish Specifications Final Rule 
published on October 5, 2007 (FR 72 56929).
    The commercial swordfish fishery is comprised of fishermen who 
hold a swordfish directed, incidental, or handgear limited access 
permits (LAP) and the related industries including processors, bait 
houses, and equipment suppliers, all of which NMFS considers to be 
small entities according to the size standards set by the Small 
Business Administration. As of May 2007, there were approximately 
180 fishermen with a directed swordfish LAP, 78 fishermen with an 
incidental swordfish (LAP), and 88 fishermen with a handgear (LAP) 
for swordfish. Based on the 2006 swordfish ex-vessel price per pound 
of $3.58, the 2008 North Atlantic swordfish baseline quota could 
result in revenues of $23,184, 913 (6,476,232 lbs dw * $3.58) and 
$593,513 (165,785 lbs dw * 3.58) for South Atlantic quota if the 
quota was fully utilized. As proposed in this action, the 2008 
baseline quotas would be adjusted to account for the 2007 
underharvest which could result in additional revenues for the North 
and South Atlantic swordfish fisheries of $34,777,370 and 
$1,187,027, respectively, for fully utilized quotas. Potential 
revenues on a per vessel basis, considering a total of 346 swordfish 
permit holders, could be $100,512 for the North Atlantic swordfish 
fishery and $3,431 for the South Atlantic swordfish fishery. 
However, in both the North and South Atlantic swordfish fisheries, 
the pelagic longline fleet has not caught the entire U.S. swordfish 
quota for many years. For example, the total 2007 North Atlantic 
swordfish landings were 1,167.5 mt dw and the current 2008 landings 
for North Atlantic swordfish, as of April 30, 2008, are 443.3 mt dw. 
Therefore, because the United States is not expected to catch its 
entire quota, and the quotas adjustments are the same in 2008 as in 
2007, NMFS does not expect these quota adjustments to have a 
significant economic impact on a large number of small entities.

Chartering Regulations

    This proposed rule would also modify regulations regarding 
vessel chartering. At its 2002 annual meeting, ICCAT adopted a 
chartering recommendation (ICCAT Recommendation 02-21) allowing 
Contracting Parties to the ICCAT Convention to charter fishing 
vessels registered to responsible Contracting Parties, Cooperating 
non-Contracting Parties, Entities or Fishing Entities (CPCs) that 
explicitly agree to apply ICCAT conservation and management measures 
and enforce them on their vessels.
    Pursuant to this recommendation, NMFS implemented regulations on 
December 6, 2004 (69 FR 70396). These regulations took a limited 
approach to chartering by allowing entities from ICCAT Contracting 
Parties to charter U.S. fishing vessels but not allowing U.S. 
entities to charter foreign vessels in the same way. Current 
regulations allow chartering arrangements between U.S. fishing 
vessel owners and foreign entities under which a U.S. fishing vessel 
can fish in waters beyond national jurisdiction without reflagging 
the vessel, and the U.S. fishing vessel's catch counts against the 
ICCAT quota of the Contracting Party of the chartering foreign 
entity. These regulations require the owner of a U.S. fishing vessel 
to apply for and obtain a chartering permit from NMFS before fishing 
under such a chartering arrangement.
    When NMFS developed and implemented the current chartering 
regulations, interest was expressed in allowing U.S. fishing vessels 
to be chartered by foreign entities of an ICCAT Contracting Party 
and to allow the catch taken to count against the ICCAT Contracting 
Party's quota. However, due to legal and policy concerns related to 
foreign vessels and foreign fishing in the U.S. exclusive economic 
zone (EEZ) and little public interest in chartering arrangements 
where a foreign vessel's catch would count against U.S. Atlantic HMS 
quotas or entitlements, NMFS did not implement regulations that 
would allow U.S. entities to charter foreign vessels to catch ICCAT-
managed species that would count against U.S. quotas or 
entitlements.
    Since implementing the chartering regulations, there has been 
increased public interest in allowing U.S. entities to charter 
foreign vessels of ICCAT CPCs where the catch taken would count 
against the U.S. Atlantic HMS quotas or entitlements, possibly as a 
step toward revitalizing certain HMS fisheries. This type of 
chartering arrangement could also help utilize Atlantic HMS quotas 
and facilitate flexibility within the vessel chartering program, 
which would in turn enhance quota management within the Atlantic HMS 
fisheries. Thus, NMFS is proposing changes to the current chartering 
regulations that would allow chartering of foreign vessels of ICCAT 
CPCs to fish on the high seas against U.S. Atlantic HMS quota or 
entitlements.
    The proposed chartering regulations would establish a process 
and criteria for NMFS's evaluation of proposed chartering 
arrangements and certain limitations on such chartering 
arrangements. Under the proposed regulations, only Atlantic HMS LAP 
holders would be allowed to enter these types of

[[Page 68402]]

chartering arrangements with foreign entities of ICCAT CPCs. NMFS is 
proposing to limit these chartering arrangements to Atlantic HMS LAP 
holders because, by having been issued an Atlantic HMS LAP, these 
permitees are allowed to harvest Atlantic HMS from the U.S. EEZ and 
on the high seas. Under the rule as proposed, only those Atlantic 
HMS LAP holders who currently are authorized to harvest HMS on the 
high seas would be chartering vessels to, essentially, exercise that 
harvesting privilege on their behalf. This approach should, 
generally, keep any resulting chartering arrangements within the 
scope of existing analyzed effects of utilizing Atlantic HMS quotas 
on the high seas. During the length of the chartering arrangement, 
the Atlantic HMS LAP holder would not be permitted to fish under 
Atlantic HMS quotas or otherwise utilize the LAPs themselves. In 
addition, under the proposed regulations, foreign vessel owners who 
enter into a chartering arrangement with an Atlantic HMS LAP holder 
would be required to follow all U.S. regulations that would have 
otherwise applied to the Atlantic HMS LAP holder.
    Since implementing the chartering regulations in 2004, NMFS has 
only received three requests for chartering permits, only one of 
which was issued. NMFS has not received a specific chartering 
request in 2008. Upon receipt of any such request, NMFS would 
conduct the necessary ecological, economic, and social analysis, 
including any necessary NEPA analysis, to consider the impacts of 
the specific chartering request on the HMS fishery and its 
participants. NMFS does not expect this regulatory modification to 
result in many additional requests, and NMFS does not expect these 
potential chartering arrangements to increase fishing mortality or 
increase fishing effort significantly. It is unlikely that 
activities conducted by foreign vessels under a chartering agreement 
would result in any economic impacts on domestic small businesses. 
Therefore, NMFS does not expect this regulatory modification to 
result in significant impacts on a substantial number of small 
entities.

Conclusion

    This proposed rule would not result in any increase in fishing 
mortality, change basic fishing practices, or pose any significant 
impacts to the human environment. Therefore, NMFS does not expect 
the minor regulatory modifications to the vessel chartering 
regulations or the carryover of underharvests to have significant 
economic impacts on small entities.


List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Management, Reporting and recordkeeping 
requirements, Treaties.

    Dated: November 12, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
    2. In Sec.  635.5, paragraph (a)(5) is revised to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (a) * * *
    (5) Chartering arrangements. (i) Where a U.S. vessel is chartered 
by a foreign entity (e.g., government, company, person) of an ICCAT 
Contracting Party.
    (A) For the purposes of paragraph (a)(5)(i) of this section, a 
chartering arrangement means any contract, agreement, or commitment 
between a U.S. fishing vessel owner and a foreign entity of an ICCAT 
Contracting Party by which the control, use, possession, or services of 
a U.S. fishing vessel are secured, for a period of time for fishing 
targeting Atlantic HMS against the ICCAT quota of the chartering 
foreign entity's Contracting Party. Chartering arrangements under this 
part do not include bareboat charters under which a vessel enters into 
a fishing agreement with a foreign entity, changes registration to fish 
under another country's registration then, once the agreed-upon fishing 
is completed, reverts back to the vessel's original registration.
    (B) If a foreign entity of an ICCAT Contracting Party wants to 
enter into a chartering arrangement with a U.S. fishing vessel owner, 
the ICCAT Contracting Party and the U.S vessel owner must be in full 
compliance with ICCAT conservation and management measures.
    (C) Before fishing under a chartering arrangement under paragraph 
(a)(5)(i) of this section, the owner of a U.S. fishing vessel must 
apply for, and obtain, a chartering permit as specified in Sec.  
635.32(e). If a chartering permit is obtained, the U.S. fishing vessel 
owner must submit catch information as specified in the terms and 
conditions of that permit. All catches will be recorded and counted 
against the applicable ICCAT quota of the chartering foreign entity's 
Contracting Party and, unless otherwise provided in the chartering 
permit, must be offloaded in the ports of the chartering foreign 
entity's ICCAT Contracting Party or offloaded under the direct 
supervision of the chartering foreign entity's ICCAT Contracting Party.
    (D) If the chartering arrangement terminates before the expiration 
of the chartering permit, the U.S. fishing vessel owner must notify 
NMFS immediately and in writing. Such notification requirements shall 
also apply to situations where the chartering arrangement is 
temporarily suspended and during intermittent periods where the vessel 
may be fishing under Atlantic HMS quotas.
    (ii) Where a foreign vessel is chartered by an Atlantic HMS LAP 
holder.
    (A) For the purposes of paragraph (a)(5)(ii) of this section, a 
chartering arrangement means any contract, agreement, or commitment 
between an Atlantic HMS LAP holder and a foreign vessel owner of an 
ICCAT CPC by which the control, use, possession, or services of a 
foreign vessel are secured, for a period of time for fishing targeting 
Atlantic HMS on the high seas against the Atlantic HMS quota or 
entitlements of the United States. Atlantic HMS LAP holders shall not 
fish using their LAP permit(s) during the duration of the chartering 
arrangement.
    (B) NMFS will consider on a case-by-case basis and must approve in 
writing, any proposed chartering arrangement under paragraph (a)(5)(ii) 
of this section. Both the ICCAT CPC and a foreign vessel owner of an 
ICCAT CPC wishing to enter into a chartering arrangement with an 
Atlantic HMS LAP holder must be in full compliance with ICCAT 
conservation and management measures. Vessels on the ICCAT IUU vessel 
list may not be chartered.
    (C) Atlantic HMS LAP holders who are interested in chartering 
foreign vessels of an ICCAT CPC under a chartering arrangement should 
include the following information in their request to NMFS:
    (1) Information regarding the proposed chartering operation, 
including the ICCAT CPC's vessel name, vessel registration, and flag of 
the vessel;
    (2) A copy of the proposed chartering arrangement between the 
Atlantic HMS LAP holder and the ICCAT CPC's vessel owner;
    (3) The species to be fished, amount of fishing expected, and gear 
types to be used;
    (4) The general geographic areas to be fished;

[[Page 68403]]

    (5) A letter of consent from the government of the ICCAT CPC 
vessel's flag state;
    (6) The timeframe of the chartering arrangement; and
    (7) Anticipated benefits to the United States, including, but not 
limited to, the use of U.S. processing facilities/personnel, and 
specific positive effects on U.S. employment.
    (D) After reviewing the information submitted, NMFS will evaluate 
whether the proposed chartering arrangement provides adequate benefit 
to the United States and will consider the implications of the 
arrangement for Atlantic HMS quota management. Atlantic HMS LAP holders 
who submit chartering arrangement requests to NMFS will be contacted if 
the chartering arrangement is authorized and will be notified of the 
requirements and terms of approval, including data submission 
requirements. NMFS may decide to deny a chartering arrangement request.
* * * * *
    3. In Sec.  635.32, paragraphs (e) (1) through (4) and (e)(6) are 
revised to read as follows:


Sec.  635.32  Specifically authorized activities.

* * * * *
    (e) * * *
    (1) For activities consistent with the purposes of this section, 
Sec.  635.5(a)(5)(i), and Sec.  600.745(b)(1) of this chapter, NMFS may 
issue chartering permits to a U.S. fishing vessel owner. An application 
for a chartering permit must include all information required under 
Sec.  600.745(b)(2) of this chapter and, in addition, written 
notification of: the species of fish covered by the chartering 
arrangement and quota allocated to the chartering foreign entity's 
ICCAT Contracting Party; duration of the arrangement; measures adopted 
by the chartering foreign entity's ICCAT Contracting Party to implement 
ICCAT chartering provisions; copies of fishing licenses, permits, and/
or other authorizations issued by the chartering foreign entity for the 
U.S. fishing vessel to fish under the arrangement; a copy of the High 
Seas Fishing Compliance Act Permit pursuant to Sec.  300.10 of this 
title; documentation regarding interactions with protected resources; 
and documentation regarding the legal establishment of the chartering 
entity. To be considered complete, an application for a chartering 
permit from a U.S. fishing vessel owner must include all information 
specified in Sec.  600.745(b)(2) of this chapter and in this paragraph 
(e).
    (2) Notwithstanding the provisions of Sec.  600.745 of this chapter 
and other provisions of this part, a valid chartering permit is 
required to fish for, take, retain, or possess ICCAT- regulated species 
under chartering arrangements as specified in Sec.  635.5(a)(5)(i). A 
valid chartering permit must be on board the U.S. fishing vessel, must 
be available when ICCAT-regulated species are landed, and must be 
presented for inspection upon request of an authorized officer. A 
chartering permit is valid for the duration of the chartering 
arrangement or until the expiration date specified on the permit, 
whichever comes first. U.S. fishing vessel owners issued a chartering 
permit shall not be authorized to fish under applicable U.S. Atlantic 
HMS quotas or entitlements until the chartering permit expires or is 
terminated.
    (3) Chartering permit holders must submit logbooks and comply with 
reporting requirements as specified in Sec.  635.5. NMFS will provide 
specific conditions and requirements in the chartering permit, so as to 
ensure consistency, to the extent possible, with laws of the ICCAT 
Contracting Party, the Consolidated HMS FMP, as well as ICCAT 
recommendations.
    (4) Observers may be placed on board U.S. fishing vessels issued 
chartering permits as specified under Sec.  635.7.
* * * * *
    (6) A U.S. fishing vessel shall be authorized to fish under only 
one chartering arrangement at a time.
* * * * *
    4. In Sec.  635.71:
    A. Paragraphs (a)(42), (43), and (44) are revised.
    B. Paragraphs (a)(45) through (a)(53) are redesignated as 
paragraphs (a)(46) through (a)(54), respectively.
    C. A new paragraph (a)(45) is added.
    The revisions and addition read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (42) Count chartering arrangement catches against quotas other than 
those defined in Sec.  635.5(a)(5).
    (43) Fail to submit catch information regarding fishing activities 
conducted under a chartering arrangement with a foreign vessel owner, 
as specified in Sec.  635.5(a)(5).
    (44) Offload catch taken under a chartering arrangement in ports 
other than the ports of the chartering foreign entity's ICCAT 
Contracting Party or offload catch without the direct supervision of 
the chartering foreign entity's ICCAT Contracting Party as specified 
Sec.  635.5(a)(5).
    (45) Fish for, take, retain, or possess ICCAT-regulated species 
under a chartering arrangement as specified in Sec.  635.5(a)(5)(i) 
without a valid chartering permit on board the vessel and available 
upon the request of an authorized officer.
* * * * *
[FR Doc. E8-27337 Filed 11-17-08; 8:45 am]
BILLING CODE 3510-22-S