[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Proposed Rules]
[Pages 39032-39039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18748]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 635

[Docket No. 080724902-9663-01]
RIN 0648-AX07


Atlantic Highly Migratory Species; North and South Atlantic 
Swordfish Quotas

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would adjust the North and South Atlantic 
swordfish quotas for the 2009 fishing year (January 1, 2009, through 
December 31, 2009) to account for underharvests, and to transfer 18.8 
metric tons (mt) dressed weight (dw) to Canada per the 2006 and 2008 
International Commission for the Conservation of Atlantic Tunas (ICCAT) 
recommendations 06-03 and 08-02. In addition, NMFS proposes to include 
minor regulatory modifications and clarifications, eliminate an 
existing sunset provision in the Madison-Swanson and Steamboat Lumps 
time/area closure, and establish a small time/area closure in the Gulf 
of Mexico called the ``Edges 40 Fathom Contour.'' These changes could 
impact fishermen with a commercial swordfish, HMS Angling, or Charter/
Headboat (CHB) permit who fish for Atlantic swordfish.

DATES:  Comments on this proposed rule may be submitted at a public 
hearing (oral or written), or via mail, or fax by September 4, 2009.
    The public hearing dates and times are:

[[Page 39033]]

    1. Monday, August 24, 2009, 3-5 p.m., Silver Spring, MD.
    2. Wednesday, August 26, 2009, 6:30-8:30 p.m., Madeira Beach, FL.

ADDRESSES:  You may submit comments, identified by [0648-AX07], 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: Steve Durkee
     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), the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP), and the EA for 
the proposed time/area closures are available from the HMS website at 
http://www.nmfs.noaa.gov/sfa/hms/ or by contacting Steve Durkee (see 
FOR FURTHER INFORMATION CONTACT).
    The public hearing locations are:
    1. Silver Spring, MD - National Oceanic and Atmospheric 
Administration, SSMC III, room 1311B, 1301 East-West Highway, Silver 
Spring, MD 20910; and
    2. Madeira Beach, FL Madeira Beach Town Hall, 300 Municipal Drive, 
Madeira Beach, FL 33708

FOR FURTHER INFORMATION CONTACT: Steve Durkee or Karyl Brewster-Geisz 
by phone: 301-713-2347 or by fax: 301-713-1917 or Rick Pearson by 
phone: 727-824-5399.

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 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. ICCAT recommendation 08-02 extended this TAC 
through 2009. 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 through 2008. ICCAT recommendation 06-02 (extended 
through 2009 by ICCAT recommendation 08-02) 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 2008 and 2009. 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 
2009 fishing year to account for the 2008 underharvests. The 2009 North 
Atlantic swordfish baseline quota is 2,937.6 mt dw. The total North 
Atlantic swordfish underharvest for 2008 was 2,691.9mt dw, which 
exceeds the maximum carryover cap of 1,468.8 mt dw. Therefore, NMFS is 
proposing to carry forward the capped amount per the ICCAT 
recommendation. The baseline quota plus the underharvest carryover 
maximum of 1,468.8 mt dw equals a proposed adjusted quota of 4,406.4 mt 
dw for the 2009 fishing year. The directed category would be allocated 
3,639.5 mt dw that would be split equally into two seasons in 2009 
(January through June and July through December). The incidental 
category, which includes recreational landings, would be allocated 300 
mt dw, and the reserve category would be reduced from a quota of 485.7 
mt dw to 466.9 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. 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 2009 South Atlantic swordfish U.S. baseline 
quota is 75.2 mt dw. The total South Atlantic swordfish underharvest 
for 2008 was 150.4 mt dw, which exceeds the maximum carryover cap of 
75.2 mt dw. Therefore, NMFS is proposing to carry 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 a proposed 
adjusted quota of 150.4 mt dw for the 2009 fishing year (Table 1).

c. Impacts

    In recent years, the United States has not caught its entire 
swordfish quota and previous to 2007, underharvests were growing 
significantly from year to year. Beginning in 2007, the amount of 
underharvest that was available for carryover was capped at 50 percent 
of the quota for North Atlantic swordfish, and 100 percent for South 
Atlantic swordfish. The proposed adjusted quota for the North and South 
Atlantic swordfish, after accounting for the 2008 underharvests and 
annual transfer to Canada, would be the same in 2009 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 are 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.
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP05AU09.023

2. Regulatory Clarifications and Modifications

    This proposed rule would also modify and clarify existing 
regulations as outlined below.

a. Swordfish Minimum Size.

    Swordfish minimum size requirements would be simplified per a 
request from NMFS Enforcement. Currently, the regulation (50 CFR 635.20 
(f )(1)) specifies three minimum size measurement methods for swordfish 
and swordfish damaged by shark bites. These measurements are 29 inches 
curved length from cleithrum to caudal keel (CK), 47 inches straight-
line lower jaw forked length (LJFL), and 33 lbs dressed weight (dw). 
These three measurements, however, are equal in effect and all refer to 
the same size of fish. To simplify compliance determinations, the 
proposed rule would specify a singular measurement method for cases 
where the head is naturally attached to the fish, also referred to as 
``whole'', and a separate singular measurement method for cases where 
the head has been removed from the fish, also referred to as 
``dressed.'' For cases where the head remains naturally attached to the 
swordfish (whole), a LJFL measurement of 47 inches will be the sole 
method for determining if a retained swordfish meets the minimum size 
requirement. This measurement will also apply to whole swordfish 
damaged by shark bites. For cases where the head has been removed from 
the fish (dressed), a CK measurement of 29 inches will be the sole 
method for determining if a retained swordfish meets the minimum size 
requirement. This measurement will also apply to dressed swordfish 
carcasses damaged by shark bites. The proposed rule will simplify 
enforcement efforts and NMFS does not expect the proposed action to 
have any impacts on swordfish fishermen.

b. Shark Identification Workshops.

    Current regulations (50 CFR 635.8(b)) only allow for Atlantic shark 
dealer or proxy certificates to be issued at Atlantic shark 
identification workshops. These certificates can only be issued to an 
individual or entity that currently holds a valid shark dealer permit 
or to a proxy for that individual or entity. However, formal 
certification at an Atlantic shark identification workshop is a 
prerequisite for obtaining a new shark dealer permit, or renewing an 
expired permit (50 CFR 635.8(b)(5)). As such, individuals or entities 
that would like to become new shark dealers, and persons holding 
expired shark dealer permits, are unable to obtain or renew a permit 
under the current regulations because they cannot present a formal 
certification of completing a workshop with their shark dealer permit 
application. Under this proposed rule, NMFS would authorize the 
issuance of ``participant certificates'' to attendees who do not 
possess a valid shark dealer permit at the time of workshop attendance. 
These participant certificates would offer proof of workshop completion 
for any individuals attempting to obtain a new shark dealer permit, or 
renew an expired shark dealer permit. Issuing participant certificates 
to workshop attendees would not have any adverse impacts, but would 
instead better

[[Page 39035]]

accommodate the issuance of shark dealer permits to new entrants and 
persons holding expired shark dealer permits.

c. Observer Requirements.

    As was highlighted by the 100 percent observer coverage requirement 
in the Gulf of Mexico, many bycatch species such as bluefin tuna 
incidentally caught in the pelagic longline fishery are discarded 
without being brought on board even if an observer is on board. While 
this is done to maximize the efficiency of fishing, this activity 
hinders the ability of observers to collect biological samples for 
research. As such, this proposed rule would require incidentally 
caught, dead HMS or other species to be brought on board at the request 
of the observer. Further clarifications regarding this reasonable 
assistance requirement include: allowing the measurement of decks, 
codends, and holding bins; providing the observer with a safe work 
area; collecting bycatch when requested by the observer; collecting and 
carrying baskets of fish when requested by the observer; allowing the 
observer to collect biological data and samples; providing adequate 
space for storage of biological samples.
    This should allow for the opportunity to collect biological samples 
from dead individuals, would have minimal to no additional impact on 
population biomass, and would have minimal impact on the fishing fleet. 
Haulback may be slowed to allow for the recovery of the fish that would 
normally be discarded dead. However, NMFS does not expect this activity 
to cause additional hardship or training, as most fish are brought on 
board. Additionally, to the extent that a particular set catches a 
large number of fish to be discarded, the observer will work to ensure 
fishing operations are disrupted as little as possible to ensure 
additional fish to not die on the line.

d. Change in Address.

    Changes in permit application information are currently required to 
be made in writing, except in the case of Atlantic tunas or an HMS 
Charter/Headboat permit, wherein the vessel owner or operator must 
report the change by phone or internet (50 CFR 635.4(i)). Under the 
proposed rule, the Atlantic Tunas Longline Limited Access Permit (a 
permit category within the Atlantic tunas permit) holders would be 
required to report any changes to the information submitted in their 
application to the NMFS in writing to a designated address. Written 
submission of information changes would provide NMFS with a robust 
record of updates. Vessel owners or operators possessing an open access 
vessel permits for Atlantic tunas permit, HMS Charter/Headboat permit, 
or HMS Angling category permit would still report changes by phone or 
internet to a number or website designated by NMFS. Altering the method 
to change permit information should not create significant hardship to 
permit holders as Atlantic Tunas Longline Limited Access Permit Holders 
are already required to provide written updates for their Atlantic 
shark and swordfish permits, which are issued by the Southeast Regional 
Office (SERO). The proposed rule would make permit information changes 
easier since one request can be used to alter all limited access 
permits issued by SERO.

e. HMS Importation Information Requirements

    Currently, the regulatory text regarding international trade 
permits stipulates that certain information must be provided on the 
consignment documents that accompany certain imported HMS species 
(specifically Atlantic, Pacific and Southern bluefin tuna, frozen 
bigeye tuna, and swordfish). As such, when the required data fields 
change per international agreements, NMFS must conduct rulemaking to 
change the data fields in the regulations. Depending on the rulemaking 
schedule, this could lead the United States to be out of compliance 
with international agreements. Under this proposed rule, the 
documentation requirements would become more general, and the 
regulatory text would require ``correct and complete information'' on 
each consignment document. The more general documentation requirements 
would give NMFS the flexibility to request data necessary to fulfill 
international recommendations. This change would have no new impacts on 
HMS importers. The public would still have an opportunity to comment on 
substantial changes to the requirements through the Paperwork Reduction 
Act process and/or rulemaking process.

3. Adjustment and Implementation of Time/Area Closures in the Gulf of 
Mexico

    Under current regulations (50 CFR 635.21 (a)(4)(ii) (iv)), the 
Madison-Swanson and Steamboat Lumps time/area closures within the Gulf 
of Mexico are set to expire on June 16, 2010. In Amendment 30b, the 
Gulf of Mexico Fisheries Management Council (GOMFMC) voted to remove 
this sunset provision, and on November 7, 2008, the GOMFMC requested 
that NMFS implement similar measures. Consistent with this request, the 
proposed rule would eliminate this sunset provision and prevent 
expiration of the time/area closures on June 16, 2010. Eliminating the 
sunset provision of the Madison-Swanson and Steamboat Lumps time/area 
closures would not have any additional impacts to the original 
closures. The proposed rule would only remove the expiration date of 
the closures where no fishing activity is currently occurring (except 
for surface trolling from May October of each year).
    In addition to the above request, the GOMFMC also asked NMFS to 
backstop a new, small time/area closure, called the ``Edges 40 Fathom 
Contour,'' implemented by the Council. This proposed rule would respond 
to the request and establish the time/area closure in the northwestern 
Gulf of Mexico. The boundaries of this closure are defined by the 
coordinates: NW = 28[deg] 51[min]N, 85[deg] 16[min]W; NE = 28[deg] 
51[min]N, 85[deg] 04[min]W; SW = 28[deg] 14[min]N, 84[deg] 54[min]W; SE 
= 28[deg] 4[min]N, 84[deg] 42[min]W. No records of pelagic longline 
sets exist within the proposed closure area between 1995 and 2006, or 
of bottom longline sets between 1996 and 2006. The extent of HMS 
recreational and charter/headboat (CHB) fishing activity within the 
proposed closure area is unknown. However, because the Edges 40 Fathom 
Contour would be closed for only four months, most recreational fishing 
activity would be allowed. These open months coincide with a period of 
increased HMS recreational fishing activity in the eastern Gulf of 
Mexico. Therefore, NMFS does not expect the implementation of the Edges 
40 Fathom Contour time/area closure to have any significant adverse 
impacts.

Request for Comments

    Comments on this proposed rule may be submitted at public hearings 
(see DATES and ADDRESSES), or via mail, fax, or online at http://www.regulations.gov by September 4, 2009. NMFS will hold 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 
Steve Durkee 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

[[Page 39036]]

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 members 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).

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

    NMFS published a final rule on October 5, 2007 (72 FR 56929) 
that established the 2,937.6 mt dw and 75.2 mt dw yearly baseline 
quotas for the North and South Atlantic swordfish, respectively; 
created an underharvest carryover cap of 50% the baseline quota for 
North Atlantic swordfish and 100% the baseline quota for South 
Atlantic swordfish; and transferred 18.8 mt dw of quota to Canada 
from the reserve category. These actions were based upon ICCAT 
recommendations 06-02 and 06-03. The North Atlantic swordfish 
provisions in recommendation 06-02 were extended through 2009 by 
ICCAT recommendation 08-02.
    These 2009 annual specifications are necessary to implement the 
2006 and 2008 International Commission for the Conservation of 
Atlantic Tunas (ICCAT) quota recommendation, as required by the 
Atlantic Tunas Convention Act, and to achieve domestic management 
objectives under the Magnuson-Stevens Act. This proposed rule would 
adjust the 2009 baseline quotas for the North and South Atlantic 
swordfish fisheries for the 2009 fishing year (January 1, 2009, 
through December 31, 2009) to account for 2008 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 
regulation (50 CFR part 635.27(c)(1)), the 2009 North Atlantic 
swordfish directed baseline quotas plus the 2008 underharvests would 
be divided equally between the semiannual periods of January through 
June and July through December, 2009. The 2009 adjusted quotas are 
4,406.4 mt dw for North Atlantic swordfish and 150.4 mt dw for South 
Atlantic swordfish (Table 1).
    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 June 2009, there were approximately 
185 fishermen with a directed swordfish LAP, 69 fishermen with an 
incidental swordfish (LAP), and 84 fishermen with a handgear (LAP) 
for swordfish. Based on the 2007 swordfish ex-vessel price per pound 
of $3.88, the 2009 North Atlantic swordfish baseline quota could 
result in revenues of $25,127, 780 (6,476,232 lbs dw * $3.88) and 
$643,246 (165,785 lbs dw * $3.88) for South Atlantic quota if the 
quota was fully utilized. As proposed in this action, the 2009 
baseline quotas would be adjusted to account for the 2008 
underharvest which could result in additional revenues for the North 
and South Atlantic swordfish fisheries of $37,691,675 and 
$1,286,499, respectively, for fully utilized quotas. Potential 
revenues on a per vessel basis, considering a total of 338 swordfish 
permit holders, could be $111,514 for the North Atlantic swordfish 
fishery and $3,806 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 2008 North Atlantic 
swordfish landings were 1,695.7 mt dw and the current 2009 landings 
for North Atlantic swordfish, as of April 30, 2009, are 411.1 mt dw. 
Therefore, because the United States is not expected to catch its 
entire quota, and the quota adjustments are the same in 2009 as in 
2008, NMFS does not expect these quota adjustments to have a 
significant economic impact on a large number of small entities.

Administrative Regulatory Modifications and Clarifications

    In addition to adjusting the North and South Atlantic swordfish 
quotas, NMFS is also proposing the following five administrative 
modifications and clarifications to the regulations: 1) clarifying 
minimum size requirements for whole and dressed swordfish; 2) 
issuing ``participant certificates'' at shark identification 
workshops to attendees that do not have a dealer license; 3) 
requiring that any dead bycatch in the pelagic longline fishery be 
brought on board, at the observer's request, for biological 
sampling; 4) requiring that any changes in information from the 
application for Atlantic Tuna Longline Limited Access Permit be 
requested in writing; and 5) clarifying the information that is to 
be included on consignment documents for the importation of 
Atlantic, Pacific and Southern bluefin tuna, frozen bigeye tuna, and 
swordfish. These changes are mostly administrative in nature and it 
is unlikely that they would result in any economic impacts on 
individuals or small businesses. Therefore, NMFS does not expect 
these regulatory modification and clarifications to result in 
significant impacts on a substantial number of small entities.

Adjustment and Implementation of Time/Area Closures in the Gulf of 
Mexico

    Under current regulations (50 CFR 635.21 (a)(4)(ii) (iv)), the 
Madison-Swanson and Steamboat Lumps time/area closures within the 
Gulf of Mexico are set to expire on June 16, 2010. In Amendment 30b, 
the Gulf of Mexico Fisheries Management Council (GOMFMC) voted to 
remove this sunset provision, and on November 7, 2008, the GOMFMC 
requested that NMFS implement similar measures. Consistent with this 
request, the proposed rule would eliminate this sunset provision and 
prevent expiration of the time/area closures on June 16, 2010. 
Eliminating the sunset provision of the Madison-Swanson and 
Steamboat Lumps time/area closures would not have any additional 
impacts to the original closures. The proposed rule would only 
remove the expiration date of the closures where no fishing activity 
is currently occurring (except for surface trolling from May October 
of each year).
    In addition to the above request, the GOMFMC also asked NMFS to 
backstop a new, small time/area closure, called the ``Edges 40 
Fathom Contour,'' implemented by the Council. This proposed rule 
would comply with the request and establish the time/area closure in 
the northwestern Gulf of Mexico. No records of pelagic longline sets 
exist within the proposed closure area between 1995 and 2006, or of 
bottom longline sets between 1996 and 2006. The extent of HMS 
recreational and charter/headboat (CHB) fishing activity within the 
proposed closure area is unknown. However, because the Edges 40 
Fathom Contour would be closed for only four months, most 
recreational fishing activity would be allowed. These open months 
coincide with a period of increased HMS recreational fishing 
activity in the eastern Gulf of Mexico.
    In order to examine the baseline universe of entities 
potentially affected by the two Gulf of Mexico time/area closure 
actions, NMFS analyzed the number of commercial swordfish, shark, 
and tuna longline permits that were issued as of May 2008 in Destin, 
FL; Panama City, FL; Apalachicola, FL; and Madeira Beach/St. 
Petersburg/Clearwater FL. Also, NMFS examined the number of HMS CHB 
(CHB) permits, and HMS Angling permits that were issued in these 
same locations. There could be as many as 21 commercial permit 
holders in the potentially affected communities that possess 
``valid'' pelagic longline permits because they possess the 
requisite three limited access permits for swordfish, shark and 
tunas longline permits. These vessels are primarily home ported in 
the Panama City, FL and the Madeira Beach/St. Petersburg, FL areas. 
The number of potentially affected commercial shark permit holders 
could be as many as 39 vessels. These vessels are also primarily 
home ported in the Panama City, FL and Madeira Beach/

[[Page 39037]]

St. Petersburg/Clearwater, FL areas. There are a relatively large 
number of HMS CHB vessels (70) in the communities of Destin, FL; 
Panama City, FL; and Madeira Beach/St. Petersburg/Clearwater, FL.
    The total number of HMS Angling category permits issued and of 
May 2008 was 26,933. These permits were distributed among many 
communities, both large and small, primarily along the eastern 
seaboard and the Gulf of Mexico. Approximately 500 1000 HMS Angling 
category permits were issued to recreational anglers located from 
Destin, FL to St. Petersburg, FL
    In summary, the preferred alternative analyzed for this proposed 
rule could potentially impact HMS commercial permit holders 
possessing the requisite three permits to fish with pelagic longline 
gear (~21vessels), commercial shark permit holders (~39 vessels), 
HMS CHB permit holders (~70 vessels), and HMS Angling category 
permit holders (~1000 vessels). In total, the preferred alternative 
could impact approximately 1,130 HMS permit holders. The HMS Angling 
category permit is strictly for recreational fishing activities, and 
does not authorize the commercial sale of any HMS. Thus, HMS Angling 
category permit holders are not considered small business entities. 
Therefore, about 130 of these permit holders are considered small 
entities. However, as described in the draft EA accompanying this 
rule, no records of pelagic longline sets exist within the proposed 
Edges 40 Fathom Contour closure area between 1995 and 2006, or of 
bottom longline sets between 1996 and 2006. Furthermore, eliminating 
the sunset provision of the Madison-Swanson and Steamboat Lumps 
time/area closures would not alter fishing practices from the status 
quo. The extent of HMS recreational and charter/headboat (CHB) 
fishing activity within the proposed closure area is unknown. 
However, because the Edges 40 Fathom Contour would be closed for 
only four months, most recreational fishing activity would be 
allowed. These open months coincide with a period of increased HMS 
recreational fishing activity in the eastern Gulf of Mexico.

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 administrative modification and clarifications or the adjustment 
of the Gulf of Mexico time/area closures to have significant 
economic impacts on small entities.

List of Subjects

50 CFR Part 300

    Reporting and recordkeeping requirements.

50 CFR Part 635

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

    Dated: July 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fishery 
Service.
    For the reasons set out in the preamble, 50 CFR parts 300 and 635 
are proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart M--International Trade Documentation and Tracking Programs 
for Highly Migratory Species

    1. The authority citation for subpart M continues to read as 
follows:

    Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 U.S.C. 1801 et 
seq.
    2. In Sec.  300.185, paragraph (a)(2)(vii) is revised to read as 
follows:


Sec.  300.185  Documentation, reporting and recordkeeping requirements 
for consignment documents and re-export certificates.

    (a) * * *
    (2) * * *
    (vii) For fish or fish products except shark fins regulated under 
this subpart that are entered for consumption, the permit holder must 
provide correct and complete information, as requested by NMFS, on the 
original consignment document that accompanied the consignment.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. 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.
    4. In Sec.  635.2, the following definition is added within the 
correct alphabetic order.


Sec.  635.2  Definitions.

* * * * *
    Edges 40 Fathom Contour closed area means a parallelogram-shaped 
area in the Gulf of Mexico bounded by straight lines connecting the 
following coordinates in the order stated: 28[deg] 51[min]N. lat., 
85[deg] 16[min]W. long.; 28[deg] 51[min]N. lat., 85[deg] 04[min]W. 
long.; 28[deg] 14[min]N. lat., 84[deg] 42[min]W. long.; 28[deg] 
14[min]N. lat., 84[deg] 54[min]W. long.
* * * * *
    5. In Sec.  635.4, paragraph (i) is revised to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (i) Change in application information. A vessel owner or dealer 
must report any change in the information contained in an application 
for a permit within 30 days after such change. The report must be 
submitted in writing to NMFS, to an address designated by NMFS with the 
issuance of each permit. For HMS charter/headboat and Atlantic tunas 
vessel permits other than tuna longline, the vessel owner must report 
the change by phone or internet to a number or website designated by 
NMFS. For certain information changes, a new permit may be issued to 
incorporate the new information, subject to limited access provisions 
specified in paragraph (l)(2) of this section. NMFS may require 
supporting documentation before a new permit will be issued. If a 
change in the permit information is not reported within 30 days, the 
permit is void as of the 31st day after such change
* * * * *
    6. In Sec.  635.7, paragraph (f) is added to read as follows:


Sec.  635.7  At-sea observer coverage.

* * * * *
    (f) Vessel responsibilities. An owner or operator of a vessel 
required to carry one or more observer(s) must provide reasonable 
assistance to enable observer(s) to carry out their duties, including, 
but not limited to:
    (1) Measuring decks, codends, and holding bins.
    (2) Providing the observer(s) with a safe work area.
    (3) Collecting bycatch when requested by the observer(s).
    (4) Collecting and carrying baskets of fish when requested by the 
observer(s).
    (5) Allowing the observer(s) to collect biological data and 
samples.
    (6) Providing adequate space for storage of biological samples.
    7. In Sec.  635.8, paragraphs (b)(4) and (5) and (c) (4) and (5) 
are revised and paragraph (b) (6) is added to read as follows:


Sec.  635.8  Workshops.

* * * * *
    (b) * * *
    (4) Only dealers issued a valid shark dealer permit may send a 
proxy to the Atlantic shark identification workshops. If a dealer opts 
to send a proxy, the dealer must designate at least one proxy from each 
place of business listed on the dealer permit, issued pursuant to Sec.  
635.4(g)(2), which first receives Atlantic shark by way of purchase, 
barter, or trade. The proxy must be a person who is currently employed 
by a place of business covered by the dealer's permit; is a primary 
participant in the identification, weighing, and/or first receipt of 
fish as they are offloaded from a vessel; and fills out dealer reports 
as required under Sec.  635.5. Only one certificate will be issued to 
each proxy. If a proxy is no longer employed by a

[[Page 39038]]

place of business covered by the dealer's permit, the dealer or another 
proxy must be certified as having completed a workshop pursuant to this 
section. At least one individual from each place of business listed on 
the dealer permit which first receives Atlantic sharks by way of 
purchase, barter, or trade must possess a valid Atlantic shark 
identification workshop certificate.
    (5) A Federal Atlantic shark dealer issued or required to be issued 
a shark dealer permit pursuant to Sec.  635.4(g)(2) must possess and 
make available for inspection a valid dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy at 
each place of business listed on the dealer permit which first receives 
Atlantic sharks by way of purchase, barter, or trade. For the purposes 
of this part, trucks or other conveyances of a dealer's place of 
business are considered to be extensions of a dealer's place of 
business and must possess a copy of a valid dealer or proxy Atlantic 
shark identification workshop certificate issued to a place of business 
covered by the dealer permit. A copy of a valid Atlantic shark 
identification workshop certificate must be included in the dealer's 
application package to obtain or renew an Atlantic shark dealer permit. 
If multiple businesses are authorized to receive Atlantic sharks under 
the Atlantic shark dealer's permit, a copy of the Atlantic shark 
identification workshop certificate for each place of business listed 
on the Atlantic shark dealer permit which first receives Atlantic 
sharks by way of purchase, barter, or trade must be included in the 
Atlantic shark dealer permit renewal application package.
    (6) Persons holding an expired Atlantic shark dealer permit and 
persons who intend to apply for a new Atlantic shark dealer permit will 
be issued a participant certificate in their name upon successful 
completion of the Atlantic shark identification workshop. A participant 
certificate issued to such persons may be used only to apply for an 
Atlantic shark dealer permit. Pursuant to Sec.  635.8(c)(4), an 
Atlantic shark dealer may not first receive, purchase, trade, or barter 
for Atlantic shark without a valid dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy. 
After an Atlantic shark dealer permit is issued to a person using an 
Atlantic shark identification workshop participant certificate, such 
person may obtain an Atlantic shark identification workshop dealer 
certificate for each location which first receives Atlantic sharks by 
way of purchase, barter, or trade by contacting NMFS at an address 
designated by NMFS.
    (c) * * *
    (4) An Atlantic shark dealer may not first receive, purchase, 
trade, or barter for Atlantic shark without a valid dealer or proxy 
Atlantic shark identification workshop certificate issued to the dealer 
or proxy. A valid dealer or proxy Atlantic shark identification 
workshop certificate issued to the dealer or proxy must be maintained 
on the premises of each place of business listed on the dealer permit 
which first receives Atlantic sharks by way of purchase, barter, or 
trade. An Atlantic shark dealer may not renew a Federal dealer permit 
issued pursuant to Sec.  635.4(g)(2) unless a copy of a valid dealer or 
proxy Atlantic shark identification workshop certificate issued to the 
dealer or proxy has been submitted with the permit renewal application. 
If the dealer is not certified and opts to send a proxy or proxies to a 
workshop, the dealer must submit a copy of a valid proxy certificate 
for each place of business listed on the dealer permit which first 
receives Atlantic sharks by way of purchase, barter, or trade.
    (5) A vessel owner, operator, shark dealer, proxy for a shark 
dealer, or participant who is issued either a protected species 
workshop certificate or an Atlantic shark identification workshop 
certificate may not transfer that certificate to another person.
* * * * *
    8. In Sec.  635.20, the first sentence of paragraph (a) and 
paragraph (f) are revised to read as follows:


Sec.  635.20  Size Limits.

    (a) General. The CFL will be the sole criterion for determining the 
size and/or size class of whole (head on) Atlantic tunas for a vessel 
that has been issued a limited access North Atlantic swordfish permit 
under Sec.  635.4. * * *
* * * * *
    (f) Swordfish.
    (1) For a swordfish that has its head naturally attached, the LJFL 
is the sole criterion for determining the size of a swordfish. No 
person shall take, retain, possess, or land a whole (head on) North or 
South Atlantic swordfish taken from its management unit that is not 
equal to or greater than 47 inches (119 cm) LJFL. A swordfish with the 
head naturally attached that is damaged by shark bites may be retained 
only if the length of the remainder of the fish is equal to or greater 
than 47 inches (119 cm) LJFL.
    (2) If the head or tail of a swordfish has been removed prior to or 
at the time of landing, the CK measurement is the sole criterion for 
determining the size of a swordfish. No person shall take, retain, 
possess, or land a dressed North or South Atlantic swordfish taken from 
its management unit that is not equal to or greater than 29 inches (73 
cm) CK length. A swordfish with the head removed that is damaged by 
shark bites may be retained only if the length of the remainder of the 
carcass is equal to or greater than 29 inches (73 cm) CK length.
    (3) No person shall import into the United States an Atlantic 
swordfish weighing less than 33 lb (15 kg) dressed weight, or a part 
derived from a swordfish that weighs less than 33 lb (15 kg) dressed 
weight.
    (4) Except for a swordfish landed in a Pacific state and remaining 
in that Pacific state of landing, a swordfish, or part thereof, not 
meeting the minimum size measurements specified in Sec.  635.20(f)(1) 
or (2) will be deemed to be an Atlantic swordfish harvested by a vessel 
of the United States and to be in violation of the minimum size 
requirement of this section unless such swordfish, or part thereof, is 
accompanied by a swordfish statistical document attesting that the 
swordfish was lawfully imported. Refer to Sec.  300.186 of this title 
for the requirements related to the swordfish statistical document.
    (5) A swordfish, or part thereof, will be monitored for compliance 
with the minimum size requirement of this section from the time it is 
landed in, or imported into, the United States up to, and including, 
the point of first transaction in the United States.
    9. In Sec.  635.21, paragraphs (a) (4) (ii) and (iii) are revised 
and paragraph (a) (4) (v) is added to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (a) * * *
    (4) * * *
    (ii) From November through April of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Madison-Swanson closed area or the 
Steamboat Lumps closed area, as defined in Sec.  635.2.
    (iii) From May through October of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Madison-Swanson or the Steamboat Lumps 
closed areas except for surface trolling, as specified below under 
paragraph (a)(4)(iv) of this section.
* * * * *

[[Page 39039]]

    (v) From January through April of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Edges 40 Fathom Contour closed area, as 
defined in Sec.  635.2.
* * * * *
    10. In Sec.  635.71, paragraphs (d) (11) and (14) are revised to 
read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (11) Receive, purchase, trade, or barter for Atlantic sharks 
without a valid dealer or proxy Atlantic shark identification workshop 
certificate issued to the dealer or proxy or fail to be certified for 
completion of a NMFS Atlantic shark identification workshop in 
violation of Sec.  635.8.
* * * * *
    (14) Receive, purchase, trade, or barter for Atlantic sharks 
without making available for inspection, at each of the dealer's places 
of business listed on the dealer permit which first receives Atlantic 
sharks by way of purchase, barter, or trade, a valid dealer or proxy 
Atlantic shark identification workshop certificate issued by NMFS to 
the dealer or proxy in violation of Sec.  635.8(b), except that trucks 
or other conveyances of the business must possess a copy of such 
certificate.
* * * * *
[FR Doc. E9-18748 Filed 8-4-09; 8:45 am]
BILLING CODE 3510-22-C