29158 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Proposed Rules 

inflation) or more by either State, local, 

and tribal governments in the aggregate 

or by the private sector in any 1 year. 

Environmental Impact 

The Secretary has previously 

considered the environmental effects of 

this rule as announced in the Final Rule 

(66 FR 4076 at 4088). No new 

information or comments have been 

received that would affect the agency’s 

previous determination that there is no 

significant impact on the human 

environment and that neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

Executive Order 13132: Federalism 

The Secretary has analyzed this 

proposed rule in accordance with 

Executive Order 13132: Federalism. 

Executive Order 13132 requires Federal 

agencies to carefully examine actions to 

determine if they contain policies that 

have federalism implications or that 

preempt State law. As defined in the 

Order, ‘‘policies that have federalism 

implications’’ refers to regulations, 

legislative comments or proposed 

legislation, and other policy statements 

or actions that have substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

The Secretary is publishing this 

proposed rule to modify treatment 

regulations that provide for the use of 

approved opioid agonist treatment 

medications in the treatment of opiate 

addiction. The Narcotic Addict 

Treatment Act (NATA, Pub. L. 93–281) 

modified the Controlled Substances Act 

(CSA) to establish the basis for the 

Federal control of narcotic addiction 

treatment by the Attorney General and 

the Secretary. Because enforcement of 

these Sections of the CSA is a Federal 

responsibility, there should be little, if 

any, impact from this rule on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, this 

proposed rule does not preempt State 

law. Accordingly, the Secretary has 

determined that this proposed rule does 

not contain policies that have 

federalism implications or that preempt 

State law. 

Paperwork Reduction Act of 1995 

This proposed rule modifies 42 CFR 

8.12(i) by reducing regulatory 

dispensing requirements for 

buprenorphine and buprenorphine 

combination products that may be used 

in SAMHSA-certified opioid treatment 

programs. The proposed rule establishes 

no new reporting or recordkeeping 

requirements beyond those discussed in 

the January 17, 2001, Final Rule (66 FR 

4076 at 4088). On January 10, 2007, the 

Office of Management and Budget 

approved the information collection 

requirements of the Final Rule under 

control number 0930–0206. 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 (65 FR 67249, 

November 6, 2000) requires us to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ as defined in the 

Executive Order, to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes.’’ This 

proposed rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified in Executive Order 13175. 

Dated: May 1, 2009. 

Eric B. Broderick, 

Acting Administrator, SAMHSA, Assistant 

Surgeon General. 

Dated: May 13, 2009. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

List of Subjects in 42 CFR Part 8 

Health professions, Levo-AlphaAcetyl-Methadol (LAAM), Methadone, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth above, part 

8 of Title 42 of the Code of Federal 

Regulations is proposed to be amended 

as follows: 

1. The authority citation for part 8 

continues to read as follows: 

Authority: 21 U.S.C. 823; 42 U.S.C. 257a, 

290aa(d), 290dd–2, 300x–23, 300x–27(a), 

300y–11. 

2. Section 8.12(i)(3) introductory text 

is revised to read as follows: 

§ 8.12 Federal opioid treatment standards. 

* * * * * 

(i) * * * 

(3) Such determinations and the basis 

for such determinations consistent with 

the criteria outlined in paragraph (i)(2) 

of this section shall be documented in 

the patient’s medical record. If it is 

determined that a patient is responsible 

in handling opioid drugs, the 

dispensing restrictions set forth in 

paragraphs (i)(3)(i) through (vi) of this 

section apply. The dispensing 

restrictions set forth in paragraphs 

(i)(3)(i) through (vi) of this section do 

not apply to buprenorphine and 

buprenorphine products listed under 42 

CFR 8.12(h)(2)(iii). 

* * * * * 

[FR Doc. E9–14286 Filed 6–18–09; 8:45 am] 

BILLING CODE 4160–20–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 300 and 665 

[Docket No. 080225267–9319–02] 

RIN 0648–AW49 

International Fisheries Regulations; 

Fisheries in the Western Pacific; 

Pelagic Fisheries; Hawaii-based 

Shallow-set Longline Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: This proposed rule would 

remove the annual limit on the number 

of fishing gear deployments (sets) for the 

Hawaii-based pelagic longline fishery. 

The rule would also increase the current 

limit on incidental interactions that 

occur annually between loggerhead sea 

turtles and shallow-set longline fishing. 

The proposed rule is intended to 

increase opportunities for the shallowset fishery to sustainably harvest 

swordfish and other fish species, 

without jeopardizing the continued 

existence of sea turtles and other 

protected resources. This proposed rule 

would also make several administrative 

clarifications to the regulations. 

DATES: Comments on the proposed rule 

must be received by August 3, 2009. 

ADDRESSES: Comments on this proposed 

rule, identified by 0648–AW49, may be 

sent to either of the following addresses: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal 

www.regulations.gov; or 


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• Mail: William L. Robinson, Regional 

Administrator, NMFS, Pacific Islands 

Region (PIR), 1601 Kapiolani Blvd., 

Suite 1110, Honolulu, HI 96814–4700. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to 

www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.) submitted 

voluntarily by the sender 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 name and organization 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the Fishery Management 

Plan for Pelagic Fisheries of the Western 

Pacific Region (Pelagics FMP) and 

Amendment 18, including a final 

supplemental environmental impact 

statement (SEIS), are available from 

www.regulations.gov, and the Western 

Pacific Fishery Management Council 

(Council), 1164 Bishop St., Suite 1400, 

Honolulu, HI 96813, tel 808–522–8220, 

fax 808–522–8226, www.wpcouncil.org. 

FOR FURTHER INFORMATION CONTACT: 

Adam Bailey, Sustainable Fisheries 

Division, NMFS PIR, 808–944–2248. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This proposed rule is also accessible 

at www.gpoaccess.gov/fr. 

Background 

Pelagic fisheries in the U.S. western 

Pacific are managed under the Pelagics 

FMP, developed by the Council and 

approved and implemented by NMFS. 

The Council has submitted Amendment 

18 and draft regulations to NMFS for 

review under the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). This 

proposed rule would implement the 

management provisions recommended 

in Amendment 18. This proposed rule 

would also make housekeeping changes 

to the pelagic fishing regulations, not 

related to Amendment 18. 

The Hawaii-based shallow-set 

longline fishery began in late 2004 to 

test the effectiveness in the Pacific of a 

hook-and-bait combination that was 

found to dramatically reduce 

interactions with sea turtles when tested 

in the Atlantic pelagic longline fishery. 

A combination of circle hooks and 

mackerel-type bait was found to reduce 

interactions with leatherback and 

loggerhead sea turtles by 67 and 92 

percent, respectively, in the Atlantic. A 

final rule, published and effective on 

April 2, 2004 (69 FR 17329), established 

a limited ‘‘model’’ Hawaii-based 

shallow-set swordfish fishery requiring 

the use of circle hooks and mackereltype bait. To test the effectiveness of the 

gear combination and measure its 

impact on the environment, fishing 

effort in the model Hawaii fishery was 

limited to 2,120 sets, roughly 50 percent 

of the 1994–99 annual average number 

of sets. Those sets were distributed 

equally among permit holders who 

applied each year to participate in the 

fishery. As an additional safeguard, a 

limit was implemented on the number 

of unintended interactions with sea 

turtles that could occur in the shallowset fishery. The fishery would be closed 

for the remainder of the calendar year if 

either interaction limit was reached. 

Under the requirements implemented 

by that 2004 final rule, vessel operators 

in the Hawaii-based shallow-set fishery 

must currently use large circle hooks 

and mackerel-type bait. The fishery 

operates under a set certificate program 

that ensures that the fleet does not make 

more than a total of 2,120 shallow-sets 

per year. The fleet may not interact with 

(hook or entangle) more than 17 

loggerhead sea turtles or 16 leatherback 

sea turtles each year. NMFS requires 

every vessel to carry an observer when 

shallow setting. 

The current sea turtle interaction 

limits do not represent the upper limit 

of interactions that would avoid 

jeopardizing the continued existence of 

sea turtles, but instead are the annual 

number of sea turtle interactions 

anticipated to occur in this fishery, as 

calculated by multiplying expected 

fishing effort by interaction rates 

derived from studies using circle hooks 

and mackerel bait in U.S. longline 

fisheries in the Atlantic. 

The use of large circle hooks and 

mackerel-type bait in Hawaii’s shallowset longline fishery has reduced sea 

turtle interaction rates by approximately 

90 percent for loggerheads and 83 

percent for leatherbacks, compared to 

the previous period 1994–2002 when 

the fishery was operating without these 

requirements. The fishery has been 

closed once, in 2006, as a result of 

reaching an interaction limit. See 

www.fpir.noaa.gov/SFD/ 

SFDlturtleint.html for a history of 

shallow-set fishery interactions with 

loggerhead and leatherback sea turtles. 

Because this gear combination has 

proven to be highly effective in reducing 

sea turtle interaction rates, the Council 

examined and considered a range of 

management alternatives that would 

allow increased shallow-set fishing 

effort. An increase in fishing effort 

would be associated with an increase in 

the allowable associated sea turtle 

interaction limits. The shallow-set 

certificate program used to govern the 

effort limit would be removed. This 

proposed rule intends to optimize the 

harvest of swordfish and other fish, 

without jeopardizing the continued 

existence and recovery of threatened 

and endangered sea turtles and other 

protected species. The proposed rule is 

consistent with the Magnuson-Stevens 

Fishery Conservation and Management 

Act goals to achieve optimum yield 

from the shallow-set fishery, while 

minimizing bycatch and associated 

mortality. 

A range of management alternatives 

was identified during the development 

of this proposed rule, as described in 

the summary of the SEIS in the 

Classification section below. Under all 

analyzed management alternatives, 

other measures that are currently 

applicable to the fishery would remain 

unchanged, including, but not limited 

to, limited access permits, vessel and 

gear marking requirements, vessel 

length restrictions, Federal catch and 

effort logbooks, 100–percent observer 

coverage, large longline restricted areas 

around the Hawaiian Archipelago, 

vessel monitoring system (VMS), annual 

protected species workshops, and the 

use of sea turtle, seabird, and marine 

mammal handling and mitigation gear 

and techniques. 

This proposed rule would remove the 

annual limits on shallow-set fishing 

effort and the requirements of the 

shallow-set certificate program found at 

50 CFR 665.33, the related prohibitions 

at 50 CFR 665.22, and the definition of 

a shallow-set certificate found at 50 CFR 

665.12. The annual limits for sea turtle 

interactions would be revised in 50 CFR 

665.33. Also in that section, the 

Regional Administrator would be 

required to publish an annual 

notification in the Federal Register of 

the applicable annual sea turtle 

interaction limits, and if an interaction 

limit is exceeded in any one calendar 

year, the annual limit for that sea turtle 

species would be adjusted downward 

the following year by the number of 

interactions by which the limit was 

exceeded. 

In addition to Amendment 18’s 

recommended modifications to the 

shallow-set effort and turtle interaction 

measures, this proposed rule would 

make several technical clarifications to 

the longline regulations, unrelated to 

Amendment 18. First, this proposed 

rule would clarify the technical 

specifications regarding required circle 


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hooks. In a final rule published on 

November 15, 2005, NMFS 

implemented a requirement for Hawaiibased shallow-set longline fishermen to 

use circle hooks, size 18/0 or larger with 

an offset of 10 degrees (70 FR 69282). 

The wording of this requirement was 

intended to mirror the requirement for 

Atlantic longline fishing, which require 

the use of circle hooks with an offset not 

to exceed 10 degrees (69 FR 40734; July 

6, 2004). The November 2005 final rule 

for the western Pacific shallow-set 

fishery inadvertently omitted the phrase 

‘‘not to exceed.’’ This proposed rule 

would correct the error. The result 

would be that shallow-set longline 

fishermen could use hooks with a range 

of offset from zero to 10 degrees. 

The second proposed technical 

change to longline regulations would 

clarify the requirement to carry line 

clippers, including the design 

specifications, on vessels registered for 

use under a Hawaii longline limited 

access permit. On March 28, 2000, 

NMFS published a final rule that 

implemented several measures designed 

to mitigate injuries to sea turtles by the 

Hawaii longline pelagic fishery, 

including requirements to carry and use 

line clippers, dip nets, and dehookers 

(65 FR 16347). In a subsequent final rule 

relating to sea turtle mitigation 

measures (70 FR 69282, November 15, 

2005), the requirements in 50 CFR 

665.32 specifically relating to line 

clippers were inadvertently omitted. 

This proposed rule would correct the 

error. The corrected regulation would 

require fishermen to carry on board 

their vessels and use line cutters 

meeting NMFS design specifications. 

The proposed rule would also 

redesignate several paragraphs in 50 

CFR 665.32 for organizational clarity. 

In the third technical clarification, 

this proposed rule would remove two 

regulations that have been superseded 

by more stringent regulations. In 50 CFR 

665.22, paragraph (gg) prohibits 

shallow-set longline fishing from a 

vessel registered for use under a Hawaii 

longline limited access permit north of 

the Equator with hooks other than circle 

hooks. That paragraph was superseded 

by paragraph (jj), which prohibits such 

fishing from a vessel registered under 

any western Pacific longline permit. 

Similarly, paragraph (hh) prohibits 

shallow-set longline fishing from a 

vessel registered for use under a Hawaii 

longline limited access permit north of 

the Equator with bait other than 

mackerel-type bait. That paragraph was 

superseded by paragraph (kk), which 

prohibits such fishing from a vessel 

registered for use under any western 

Pacific longline permit. Thus, 

paragraphs (gg) and (hh) would be 

removed. 

Finally, a technical clarification 

would be made to the high seas fishing 

regulations to correct a reference to 

western Pacific domestic fishing 

regulations. In 50 CFR 300, paragraph 

(1)(v) incorrectly refers to Pacific 

longline reporting requirements at 50 

CFR 660.14. This reference would be 

corrected to refer to the requirements at 

50 CFR 665.14. 

Public comments on this proposed 

rule must be received by close of 

business on August 3, 2009, not 

postmarked or otherwise transmitted by 

that date. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

that this proposed rule is consistent 

with the Pelagics FMP, other provisions 

of the Magnuson-Stevens Act, and other 

applicable laws, subject to further 

consideration after public comment. 

A final SEIS is included with 

Amendment 18. A notice of availability 

of the draft SEIS was published on 

August 22, 2008 (73 FR 49667). To 

reduce the complexity of the SEIS 

analyses, the proposal was divided into 

three topic areas, each with its own 

range of alternatives as summarized 

below. 

Topic 1: Shallow-set Longline Fishing 

Effort Limits 

The fishery is currently limited to 

2,120 shallow sets per year, which is 

half the average annual fishing effort 

during 1994–99. The existing annual sea 

turtle interaction limits of 17 loggerhead 

sea turtles and 16 leatherback sea turtles 

were determined based on experimental 

(Atlantic Ocean) interaction rates 

multiplied by the 2,120 set limit. Under 

Alternatives 1A–1E below, the annual 

sea turtle interaction limits for the 

fishery were similarly predicted using 

observed Pacific Ocean sea turtle 

interaction rates multiplied by each 

alternative’s effort limit. In the case of 

Alternative 1F (remove effort limit), 

revised sea turtle interaction limits were 

recommended by the Council, taking 

into account the potential for reasonable 

increases in fishing effort, as well as 

likely impacts on sea turtle populations. 

Alternative 1A: No action; continue 

the current annual set limit. Under this 

alternative, the maximum annual limit 

on the number of shallow-sets would 

remain at 2,120. 

Alternative 1B: Allow up to 3,000 sets 

per year. This effort limit was chosen as 

a middle-ground effort alternative inbetween the current set limit and the 

average annual effort during 1994–99 

(approximately 4,240 sets). 

Alternative 1C: Allow up to 4,240 

shallow sets per year. This effort limit 

represents the average number of annual 

sets during 1994–99, or double the 

current set limit of 2,120. 

Alternative 1D: Allow up to 5,500 

shallow sets per year. This effort limit 

is nearly the annual maximum number 

of sets for any one year from 1994–99. 

Alternative 1E: Set effort level 

commensurate with current conditions 

and the maximum sustainable yield 

(MSY) of North Pacific swordfish stock 

(about 9,925 sets per year). This effort 

limit would take into account catches by 

other longline fleets and the portion of 

the total swordfish catch already made 

by the Hawaii fleet. Current domestic 

and foreign swordfish landings in the 

North Pacific amount to about 14,500 

mt, which, according to a recent stock 

assessment, amounts to about 60 

percent of an estimated MSY of 22,284 

mt. Given that MSY and a current 

swordfish catch by the Hawaii-based 

fishery of between 850 to 1,637 mt, the 

amount of effort to catch the remaining 

available 7,784 mt of additional 

swordfish would be about 9,925 sets per 

year. The effort limit under this 

alternative would be adjusted over time, 

as appropriate. 

Alternative 1F (preferred): Remove 

fishing effort limits, increase the annual 

sea turtle interaction limit to 46 

interactions with loggerhead sea turtles, 

and retain the current limit of 16 

interactions with leatherback sea turtles. 

This alternative would also retain all 

other shallow-set fishery management 

measures. 

Topic 2: Fishery Participation 

Shallow-set fishing effort is currently 

administered through a set certificate 

program. The 2,120 set certificates are 

allocated equally among permit holders 

who indicate that they wish to receive 

them. A set certificate must be attached 

to each daily fishing log for shallow-set 

longline fishing. The set certificates may 

be sold, traded, or otherwise exchanged 

among other permit holders in the 

Hawaii-based longline fleet. 

Alternative 2A: No action; continue 

the set certificate program. For each 

shallow set made north of the Equator, 

vessel operators would continue to be 

required to possess and submit one 

valid shallow-set certificate for each 

shallow set made. The number of 

certificates could increase under Topic 

1, Alternatives 1B–1E. 

Alternative 2B: Discontinue the set 

certificate program (preferred). Shallowset certificates would no longer be 

issued. For those management 


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alternatives in Topic 1 that include 

effort limits, NMFS would account for 

all shallow sets on a fleet-wide basis 

through routine fishery monitoring and 

observer placement, and the fishery 

would close for the remainder of the 

year, if and when an annual set limit 

was reached. 

Topic 3: Time-Area Closures 

Time-area closures were considered 

by the Council as a way to increase 

annual fishery profits through potential 

reductions in the number of sea turtle 

interactions that may occur during 

January through March. Interaction rates 

for loggerhead sea turtles have typically 

been highest during this period, and it 

has been hypothesized that, in areas 

where swordfish and loggerhead sea 

turtle habitats may overlap, reducing 

fishing effort could increase fishery 

profits by reducing the risk of exceeding 

a sea turtle interaction limit very early 

in the year, which would close the 

fishery when there were still many more 

shallow sets allowed to be made. 

Alternative 3A: No action; do not 

implement time-area closures 

(preferred). Fishermen would continue 

to strive to minimize sea turtle 

interactions under the existing sea turtle 

handling and mitigation requirements 

and guidance. 

Alternative 3B: Implement a January 

time-area closure. The area closure 

would be located between 175° W and 

145° W longitude and encompass the 

sea surface temperature band of 17.5° to 

18.5° C. The latitude of this temperature 

band varies over time, but in January it 

is generally located near 31° to 32° N. 

Research has suggested that the area 

between sea surface temperatures of 

17.5° to 18.5° C may be an area of high 

loggerhead sea turtle concentrations, 

based on historical and contemporary 

distribution and foraging studies, and 

observed loggerhead sea turtle 

interactions with the fishery. The month 

of January was selected because it may 

be that the number of loggerhead 

interactions during January is pivotal to 

whether or not the fishery will reach its 

annual sea turtle interaction limit before 

all allowable shallow sets are deployed. 

For example, in 2006, the fishery 

interacted with eight loggerheads in 

January and the fishery reached the 

limit of 17 in mid-March. In 2007, the 

fishery did not interact with any 

loggerheads during January, but had 

interacted with 15 loggerheads by the 

end of the first quarter, and still did not 

reach the annual sea turtle interaction 

limit. 

Alternative 3C: Implement in-season 

time-area closures. Under Alternative 

3C, the sea surface temperature-based 

area closure described for Alternative 

3B would be implemented only in those 

years in which 75 percent of the annual 

loggerhead turtle limit was reached 

during the first quarter, and the closure 

would remain in effect for the 

remainder of the first quarter. As with 

Alternative 3B, this alternative is being 

considered as a way to increase annual 

fishery profits through reductions in the 

number of turtle interactions that occur 

in the first quarter of each year. This 

alternative differs from 3B in that its 

implementation would be contingent on 

relatively high numbers of sea turtle 

interactions during the first quarter. 

Under the preferred alternatives, 

Amendment 18 and this proposed rule 

would remove the effort limit. The 

Loggerhead sea turtle interaction limit 

would be increased to 46, and the 

leatherback sea turtle interaction limit 

would remain unchanged at 16. The set 

certificate program would be 

eliminated. No time/area closures 

would be implemented. Under these 

alternatives, shallow-set fishing effort 

would not be limited, and could 

increase to historic levels of 4,000 to 

5,000 sets per year (3.4 to 4.2 million 

hooks/yr). Some increased participation 

in the shallow-set fishery is anticipated 

with fishermen from the Hawaii-based 

deep-set tuna fishery moving into the 

fishery as a result of quotas being 

established for bigeye tuna. Entry into 

the Hawaii longline fishery, including 

both shallow- and deep-set techniques, 

would remain limited to 164 vessels. 

Based on the information in the draft 

SEIS, as compared to the no-action 

alternative, implementing the preferred 

alternatives would not have significant 

adverse impacts on target (swordfish) 

stocks because harvests would not 

exceed MSY. The preferred alternatives 

are not expected to significantly alter 

fishing operations, and catch and 

discard rates of non-target fish species 

would remain at an estimated 6–7 

percent of the fishery’s total annual 

catch. Resulting fishing mortality of 

non-target fish species would be 

expected to be a minor fraction of 

Pacific-wide catches and well below 

known MSY levels. 

Implementing the preferred 

alternatives would have no adverse 

impacts to essential fish habitat or 

habitat areas of particular concern. The 

preferred alternatives are expected to 

affect listed marine mammals, but are 

not likely to adversely affect Hawaiian 

monk seals, and blue, fin, sei, sperm, 

and North Pacific Right whales. The 

preferred alternatives may affect, and 

are likely to adversely affect, humpback 

whales, and loggerhead, leatherback, 

olive ridley, green, and hawksbill sea 

turtles. Under the preferred alternatives, 

other marine mammal interactions are 

expected to continue to be relatively 

low. The preferred alternatives are 

consistent with the October 2008 

Biological Opinion’s Reasonable and 

Prudent Measures and Terms and 

Conditions. 

The fishery will likely result in 

interactions with Laysan and blackfooted albatrosses, but the fishery is not 

expected to result in a significant 

impact on any albatross populations, 

including the endangered short-tailed 

albatross. No significant cumulative 

impacts or environmental justice issues 

were identified. 

The complete analysis of the 

alternatives is contained in Amendment 

18 and final SEIS, and is not repeated 

here. Copies of the environmental 

analytical documents are available from 

www.regulations.gov and the Council 

(see ADDRESSES). 

An initial regulatory flexibility 

analysis (IRFA) was prepared, as 

required by section 603 of the 

Regulatory Flexibility Act (RFA). The 

IRFA describes the economic impact 

this proposed rule, if adopted, would 

have on small entities. A description of 

the action, why it is being considered, 

and the legal basis for this action are 

contained at the beginning of this 

section in the preamble and in the 

SUMMARY section of the proposed 

rule. A summary of the IRFA follows: 

This rule does not duplicate, overlap, or 

conflict with other Federal rules. There are 

no disproportionate economic impacts from 

this rule based on home port, gear type, or 

relative vessel size. There are no 

recordkeeping, reporting, or other 

compliance costs associated with this 

rulemaking. In the absence of relevant cost 

data, gross revenue is used as proxy for 

profitability. 

Description and estimate of the number of 

small entities to which the rule applies 

There are approximately 30 active Hawaiibased shallow-set swordfish longline vessels, 

and an indeterminate number of non-active 

permit holders that may be affected by this 

rulemaking. All are considered to be small 

entities (fish-harvesting business) under the 

definition provided by the Small Business 

Administration (SBA) as follows: 

independently owned and operated, not 

dominant in its field of operation, and having 

annual receipts not in excess of $4.0 million. 

Between 2005 and 2007, 29 to 37 vessels 

participated in the shallow-set longline 

fishery, and the average revenue earned by 

the vessels was $225,227. In addition, it is 

believed that the majority of participants are 

also active in the deep-set longline fishery 

during the course of a year. Thus, their 

shallow-set revenues represent one portion of 

their total revenue. In 2007, the overall 

average (combined deep-set and shallow-set 


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longline fisheries) ex-vessel revenue was 

$62.6 million realized by 129 active vessels. 

On a per-vessel basis, this yields an average 

ex-vessel revenue of $486,039 per vessel, still 

far below the $4.0 million threshold. 

Economic Impacts 

Preferred Alternative 1F would be 

expected to have no adverse economic 

impact on the 30 individual vessels 

comprising the 2008 fishery. In 2007, 29 

vessels made only 1,497 sets. By 

interpolating this number, the 30 vessels 

fishing in 2008 are expected to make 

approximately 1,549 sets. Since the fishery 

had reopened in 2004, it has never 

approached the current cap of 2,120 sets. 

Therefore, this rule would lift a constraint 

that has not been historically tested by the 

present participants in the fishery. The 

elimination of the cap, therefore, would be 

expected to have no economic impact on the 

30 participants in the fishery in 2009. In the 

long term, removal of the set limit is 

expected to allow for the entry of new vessels 

into the fishery, increasing available rents to 

the fishery as a whole. This is discussed at 

length in the Regulatory Impact Review (see 

ADDRESSES). 

Because the fishery was closed one year as 

a result of reaching the present loggerhead 

interaction limit of 17, the increase in 

allowable turtle interactions for loggerheads 

to 46 would theoretically translate to a 

potential increase in gross revenues and 

vessel profitability that could be measured by 

comparing the total revenues associated with 

the old interaction cap and the new 

interaction cap. The continuation in 

allowable leatherback interactions, however, 

would theoretically have no economic 

impact to the fishery in the short run since, 

historically, the leatherback cap of 16 has not 

been reached. However, data on the 

relationship between turtle interactions and 

catch are uncertain because of the newness 

of the managed fishery and the lack of data 

points. Therefore, those economic impacts 

would be indeterminate in the short term. 

Preferred Alternative 2B, the removal of 

the requirement for set certificates, will have 

a minimal yet positive impact on individual 

vessel owners that would have needed 

additional certificates to prosecute the 

fishery. The gross revenue derived from a set 

averages approximately $5,000, and the sale 

of set certificates by those owning a limited 

access permit has been reported by industry 

to be between $50 and $100, or 2–3 percent 

of gross revenue per set. This would reflect 

a cost savings to the vessel and an 

enhancement of profitability. Alternatively, 

those that have historically sold their 

certificates in lieu of fishing could lose $50 

to $100 dollars per set per year. The private 

sale of certificates has not been tracked by 

NMFS due to privacy considerations and the 

lack of any legal requirements to do so. 

However, if opportunities outside of fishing 

for swordfish are assumed to be equal to or 

exceed profits that could be obtained by 

using their certificates to fish, the adverse 

impact to these permit holders would be 

three percent or less. 

Preferred Alternative 3A (no action) will 

have no impact on the fishery. 

There are no significant alternatives to this 

rulemaking that would have a less adverse or 

more beneficial economic impact than the 

preferred. All other alternatives considered 

regarding number of sets allowed, including 

the no-action alternative, are expected to 

have no adverse economic impact to the 

present participants in the fishery. The noaction alternative for elimination of set 

certificates would have no economic impact 

with regard to the present fishery and the 

permit holders selling certificates. 

Alternatives that would require the fishery to 

implement time/area closures would have an 

indeterminate economic impact on the 

fishery because the trade-offs between catch 

and turtle interactions that could close the 

fishery cannot be estimated with limited 

existing data. However, there are early 

indications that time/area closures would not 

have a substantial impact on turtle 

interactions or profitability of fishing 

operations. 

A formal section 7 consultation under 

the Endangered Species Act was 

conducted for Amendment 18 on the 

effects of the proposed action on ESAlisted marine species. In a Biological 

Opinion dated October 15, 2008, NMFS 

determined that fishing activities under 

Amendment 18 and its implementing 

regulations may affect, but are not likely 

to adversely affect, seven ESA-listed 

species (Hawaiian monk seal, and blue, 

fin, sei, sperm, and North Pacific Right 

whales). NMFS also determined that the 

proposed action may affect, and is likely 

to adversely affect, six other ESA-listed 

marine species that occur in the action 

area (humpback whale, and loggerhead, 

leatherback, olive ridley, green, and 

hawksbill sea turtles). This proposed 

rule is consistent with the October 2008 

Biological Opinion’s Reasonable and 

Prudent Measures and Terms and 

Conditions. 

Additionally, an informal 

consultation was conducted under 

section 7 of the ESA with the U.S. Fish 

and Wildlife Service (USFWS) on the 

effects of the proposed rule on the 

endangered short-tailed albatross. The 

USFWS concurred with the NMFS 

determination that the proposed action 

is not expected to result in a significant 

impact on short-tailed albatross during 

2009. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

List of Subjects 

50 CFR Part 300 

Administrative practice and 

procedure, International fishing and 

related activities. 

50 CFR Part 665 

Administrative practice and 

procedure, American Samoa, Fisheries, 

Fishing, Guam, Hawaii, Hawaiian 

Natives, Northern Mariana Islands, 

Pacific remote island areas, Reporting 

and recordkeeping requirements. 

Dated: June 16, 2009. 

Samuel D. Rauch III 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR chapters III and VI are 

proposed to be amended as follows: 

CHAPTER III 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

1. The authority citation for 50 CFR 

part 300, subpart B, continues to read as 

follows: 

Authority: 16 U.S.C. 5501 et seq. 

2. In § 300.17, revise paragraph 

(b)(1)(v) to read as follows: 

§ 300.17 Reporting. 

* * * * * 

(b) * * * 

(1) * * * 

(v) Pacific Pelagic Longline — 

Longline Logbook (§ 665.14(a) of this 

title); 

* * * * * 

CHAPTER VI 

PART 665—FISHERIES IN THE 

WESTERN PACIFIC 

3. The authority citation for 50 CFR 

part 665 continues to read as follows: 

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

§ 665.12 [Amended] 

4. In § 665.12, remove the definition 

of ‘‘Shallow-set certificate.’’ 

5. In § 665.22, remove and reserve 

paragraphs (bb), (gg), and (hh), and 

revise paragraph (jj) to read as follows: 

§ 665.22 Prohibitions. 

* * * * * 

(jj) Engage in shallow-setting from a 

vessel registered for use under any 

longline permit issued under § 665.21 

north of the Equator (0° lat.) with hooks 

other than circle hooks sized 18/0 or 

larger, with an offset not to exceed 10 

degrees, in violation of § 665.33(f). 

* * * * * 

6. In § 665.32, 

a. Revise paragraphs (a)(1) and (a)(2); 

b. Redesignate paragraphs (a)(5) and 

(a)(6) as paragraphs (a)(6) and (a)(7), 

respectively; 

c. Add new paragraph (a)(5); 


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d. Revise introductory text to newlyredesignated paragraphs (a)(7)(ii) and 

(a)(7)(iii); 

e. Add new paragraph (a)(7)(iii)(C); 

f. In newly-redesignated paragraph 

(a)(7), redesignate paragraphs (a)(7)(iv), 

(a)(7)(vii), (a)(7)(viii), (a)(7)(ix), and 

(a)(7)(x) as paragraphs (a)(8), (a)(9), 

(a)(10), (a)(11), and (a)(12), respectively; 

and 

g. In newly-redesignated paragraph 

(a)(7), redesignate paragraph (a)(7)(v) as 

paragraph (a)(7)(iv), and redesignate 

paragraph (a)(7)(vi) as paragraph 

(a)(7)(v). 

The revisions and additions read as 

follows: 

§ 665.32 Sea turtle take mitigation 

measures. 

(a) * * * 

(1) Hawaii longline limited access 

permits. Any owner or operator of a 

vessel registered for use under a Hawaii 

longline limited access permit must 

carry aboard the vessel line clippers 

meeting the minimum design standards 

specified in paragraph (a)(5) of this 

section, dip nets meeting the minimum 

design standards specified in paragraph 

(a)(6) of this section, and dehookers 

meeting minimum design and 

performance standards specified in 

paragraph (a)(7) of this section. 

(2) Other longline vessels with 

freeboards of more than 3 ft (0.91 m). 

Any owner or operator of a longline 

vessel with a permit issued under 

§ 665.21 other than a Hawaii limited 

access longline permit and that has a 

freeboard of more than 3 ft (0.91 m) 

must carry aboard the vessel line 

clippers meeting the minimum design 

standards specified in paragraph (a)(5) 

of this section, dip nets meeting the 

minimum design standards specified in 

paragraph (a)(6) of this section, and 

dehookers meeting the minimum design 

and performance standards specified in 

paragraph (a)(7) of this section. 

* * * * * 

(5) Line clippers. Line clippers are 

intended to cut fishing line as close as 

possible to hooked or entangled sea 

turtles. NMFS has established minimum 

design standards for line clippers. The 

Arceneaux line clipper (ALC) is a model 

line clipper that meets these minimum 

design standards and may be fabricated 

from readily available and low-cost 

materials (see Figure 1 to this section). 

The minimum design standards are as 

follows: 

(i) A protected cutting blade. The 

cutting blade must be curved, recessed, 

contained in a holder, or otherwise 

afforded some protection to minimize 

direct contact of the cutting surface with 

sea turtles or users of the cutting blade. 

(ii) Cutting blade edge. The blade 

must be capable of cutting 2.0–2.1 mm 

monofilament line and nylon or 

polypropylene multistrand material 

commonly known as braided mainline 

or tarred mainline. 

(iii) An extended reach handle for the 

cutting blade. The line clipper must 

have an extended reach handle or pole 

of at least 6 ft (1.82 m). 

(iv) Secure fastener. The cutting blade 

must be securely fastened to the 

extended reach handle or pole to ensure 

effective deployment and use. 

* * * * * 

(7) * * * 

(ii) Long-handled dehooker for 

external hooks. This item is intended to 

be used to remove externally-hooked 

hooks from sea turtles that cannot be 

brought aboard. The long-handled 

dehooker for ingested hooks described 

in paragraph (a)(7)(i) of this section 

meets this requirement. The minimum 

design and performance standards are as 

follows: * * * 

* * * * * 

(iii) Long-handled device to pull an 

‘‘inverted V’’. This item is intended to 

be used to pull an ‘‘inverted V’’ in the 

fishing line when disentangling and 

dehooking entangled sea turtles. One 

long handled device to pull an 

‘‘inverted V’’ is required on the vessel. 

The minimum design and performance 

standards are as follows: * * * 

* * * * * 

(C) The long-handled dehookers 

described in paragraphs (a)(7)(i) and (ii) 

of this section meet this requirement. 

* * * * * 

7. In § 665.33, remove and reserve 

paragraphs (a), (c), and (e), and revise 

paragraphs (b) and (f) to read as follows: 

§ 665.33 Western Pacific longline fishing 

restrictions. 

* * * * * 

(b) Limits on sea turtle interactions. 

(1) Maximum annual limits are 

established on the number of physical 

interactions that occur each calendar 

year between leatherback and 

loggerhead sea turtles and vessels 

registered for use under Hawaii longline 

limited access permits while shallowsetting. 

(i) The annual limit for leatherback 

sea turtles (Dermochelys coriacea) is 16, 

and the annual limit for loggerhead sea 

turtles (Caretta caretta) is 46. 

(ii) If any annual sea turtle interaction 

limit in paragraph (b)(i) of this section 

is exceeded in a calendar year, the 

annual limit for that sea turtle species 

will be adjusted downward the 

following year by the number of 

interactions by which the limit was 

exceeded. 

(iii) No later than January 31 of each 

year the Regional Administrator will 

publish a notice in the Federal Register 

of the applicable annual sea turtle 

interaction limits established pursuant 

to paragraphs (b)(i) and (b)(ii) of this 

section. 

* * * * * 

(f) Any owner or operator of a vessel 

registered for use under any longline 

permit issued under § 665.21 must use 

only circle hooks sized 18/0 or larger, 

with an offset not to exceed 10 degrees, 

when shallow-setting north of the 

Equator (0° lat.). As used in this 

paragraph, an offset circle hook sized 

18/0 or larger is one with an outer 

diameter at its widest point no smaller 

than 1.97 inches (50 mm) when 

measured with the eye of the hook on 

the vertical axis (y-axis) and 

perpendicular to the horizontal axis (xaxis). As used in this paragraph, the 

allowable offset is measured from the 

barbed end of the hook, and is relative 

to the parallel plane of the eyed-end, or 

shank, of the hook when laid on its side. 

* * * * * 

[FR Doc. E9–14487 Filed 6–18–09; 8:45 am] 

BILLING CODE 3510–22–S 


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