39032 Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 410, 411, 414, 415, and 

485 

[CMS–1413–CN2] 

RIN 0938–AP40 

Medicare Program; Payment Policies 

Under the Physician Fee Schedule and 

Other Revisions to Part B for CY 2010; 

Correction 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Correction of proposed rule. 

SUMMARY: This document corrects 

technical errors in the proposed rule 

entitled ‘‘Medicare Program; Payment 

Policies Under the Physician Fee 

Schedule and Other Revisions to Part B 

for CY 2010’’ which appeared in the 

July 13, 2009 Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Aucha Prachanronarong, (410) 786– 

1879. 

SUPPLEMENTARY INFORMATION: 

I. Background and Summary of Errors 

In FR Doc. E9–15835 of July 13, 2009, 

there were technical errors that are 

identified and corrected in the 

Correction of Errors section below. 

In the Physician Quality Reporting 

Initiative section of the preamble to the 

proposed rule (section II.G.2.), we 

inadvertently omitted eight measures in 

our discussion of the new individual 

quality measures proposed for 2010. 

II. Correction of Errors 

In FR Doc. E9–15835 of July 13, 2009 

(74 FR 33520), make the following 

corrections: 

1. On page 33574, second column, 

first full paragraph, the number ‘‘168’’ is 

corrected to read ‘‘176.’’ 

2. On page 33580, bottom fourth of 

the page, third column, last paragraph, 

the number ‘‘22’’ is corrected to read 

‘‘30.’’ 

3. On page 33581, 

a. Top of the page, 

(1) Second column, first paragraph, 

line 11, the number ‘‘22’’ is corrected to 

read ‘‘30.’’ 

(2) Third column, first full paragraph, 

(a) Line 3, the phrase ‘‘16 of these 22 

measures’’ is corrected to read ‘‘24 of 

these 30 measures.’’ 

(b) Line 6, the number ‘‘16’’ is 

corrected to read ‘‘24.’’ 

b. Bottom two-thirds of the page, in 

Table 19—New Individual Quality 

Measures Proposed for 2010, after the 

last measure titled ’’ HIV/AIDS: 

Sexually Transmitted Diseases— 

Syphilis Screening’’ add the following 

measures: 

Measure title 

NQF endorsement status as 

of 5/1/09 

AQA adoption 

status as of 1/ 

31/09 

Measure developer Reporting 

mechanism(s) 

Functional Communication Measure: Spoken Language Comprehension.Yes ................. No .................. American Speech-Language-Hearing Association (ASHA).Registry. 

Functional Communication Measure: Attention ........................... Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Memory ............................. Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Motor Speech ................... Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Reading ............................ Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Spoken Language Expression.Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Writing .............................. Yes ................. No .................. ASHA .............................. Registry. 

Functional Communication Measure: Swallowing ........................ Yes ................. No .................. ASHA .............................. Registry. 

Authority: Catalog of Federal Domestic 

Assistance Program No. 93.773, Medicare— 

Hospital Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program. 

Dated: July 31, 2009. 

Dawn Smalls, 

Executive Secretary to the Department. 

[FR Doc. E9–18840 Filed 8–3–09; 4:15 pm] 

BILLING CODE 4120–01–P 

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. 

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 MadisonSwanson 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: 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 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, nonContracting 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
39034 Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALSEP05AU09.023</GPH>
Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 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 MadisonSwanson 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 MadisonSwanson 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° 51′N, 85° 16′W; NE = 28° 51′N, 85° 

04′W; SW = 28° 14′N, 84° 54′W; SE = 

28° 4′N, 84° 42′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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
39036 Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 

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/ 


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Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Proposed Rules 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 § 300.185, paragraph (a)(2)(vii) is 

revised to read as follows: 

§ 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 § 635.2, the following definition 

is added within the correct alphabetic 

order. 

§ 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° 

51′N. lat., 85° 16′W. long.; 28° 51′N. lat., 

85° 04′W. long.; 28° 14′N. lat., 84° 42′W. 

long.; 28° 14′N. lat., 84° 54′W. long. 

* * * * * 

5. In § 635.4, paragraph (i) is revised 

to read as follows: 

§ 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 § 635.7, paragraph (f) is added to 

read as follows: 

§ 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 § 635.8, paragraphs (b)(4) and (5) 

and (c) (4) and (5) are revised and 

paragraph (b) (6) is added to read as 

follows: 

§ 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 

§ 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 § 635.5. Only one 

certificate will be issued to each proxy. 

If a proxy is no longer employed by a 


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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 § 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 § 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 § 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 § 635.20, the first sentence of 

paragraph (a) and paragraph (f) are 

revised to read as follows: 

§ 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 § 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 

§ 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 

§ 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 § 635.21, paragraphs (a) (4) (ii) 

and (iii) are revised and paragraph (a) 

(4) (v) is added to read as follows: 

§ 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 § 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. 

* * * * * 


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(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 § 635.2. 

* * * * * 

10. In § 635.71, paragraphs (d) (11) 

and (14) are revised to read as follows: 

§ 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 § 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 § 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS