Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32521 

Authors 

The primary authors of this notice are 

the staff members of the Western 

Colorado Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: June 25, 2009. 

Marvin E. Moriarty, 

Acting Director, U.S. Fish and Wildlife Service 

[FR Doc. E9–16080 Filed 7–7– 09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 090130102–91070–01] 

RIN 0648–AX59 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Bigeye Tuna Catch 

Limits in Longline Fisheries in 2009, 

2010, and 2011 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

under authority of the Western and 

Central Pacific Fisheries Convention 

Implementation Act (WCPFC 

Implementation Act) to establish a catch 

limit for bigeye tuna (Thunnus obesus) 

in the U.S. pelagic longline fisheries in 

the western and central Pacific Ocean 

for each of the years 2009, 2010, and 

2011. Once the limit of 3,763 metric 

tons (mt) is reached in any of those 

years, retaining, transshipping, or 

landing bigeye tuna caught in the 

western and central Pacific Ocean 

would be prohibited for the remainder 

of the year, with certain exceptions. The 

limit would not apply to the longline 

fisheries of American Samoa, Guam, or 

the Commonwealth of the Northern 

Mariana Islands (CNMI). This action is 

necessary for the United States to satisfy 

its international obligations under the 

Convention on the Conservation and 

Management of Highly Migratory Fish 

Stocks in the Western and Central 

Pacific Ocean (Convention), to which it 

is a Contracting Party. 

DATES: Comments must be submitted in 

writing by August 7, 2009. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

0648–AX59, and the regulatory impact 

review (RIR) prepared for the proposed 

rule by any of the following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking portal, at http:// 

www.regulations.gov. 

• Mail: William L. Robinson, 

Regional Administrator, NMFS Pacific 

Islands Regional Office (PIRO), 1601 

Kapiolani Blvd., Suite 1110, Honolulu, 

HI 96814. Include the identifier ‘‘0648– 

AX59’’ in the comments. 

Instructions: All comments received 

are part of the public record and 

generally will be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name and address) 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 (if submitting 

comments via the Federal e-Rulemaking 

portal, enter ‘‘N/A’’ in the relevant 

required 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. 

An initial regulatory flexibility 

analysis (IRFA) prepared under the 

authority of the Regulatory Flexibility 

Act (RFA) is included in the 

Classification section of the 

SUPPLEMENTARY INFORMATION section of 

this proposed rule. 

Copies of the RIR and copies of the 

environmental assessment (EA) 

prepared under the authority of the 

National Environmental Policy Act are 

available at http://www.fpir.noaa.gov/ 

IFD/ifdldocumentsldata.html or may 

be obtained from William L. Robinson, 

Regional Administrator, NMFS PIRO 

(see ADDRESSES). 

FOR FURTHER INFORMATION CONTACT: Tom 

Graham, NMFS PIRO, 808–944–2219. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This proposed rule is also accessible 

at http://www.gpoaccess.gov/fr. 

Background on the Convention and the 

WCPFC 

The Convention entered into force in 

June 2004. The full text of the 

Convention is available at: http:// 

www.wcpfc.int/convention.htm. The 

area of application of the Convention, or 

the Convention Area, comprises the 

majority of the western and central 

Pacific Ocean (WCPO). In the North 

Pacific Ocean the eastern boundary of 

the Convention Area is at 150° W. long. 

A map showing the boundaries of the 

Convention Area is available at: http:// 

www.wcpfc.int/pdf/Map.pdf. The 

Convention focuses on the conservation 

and management of highly migratory 

species (HMS) and the management of 

fisheries for HMS, and has provisions 

related to non-target, associated, and 

dependent species in such fisheries. 

The Western and Central Pacific 

Fisheries Commission (WCPFC), 

established under the Convention, is 

comprised of the Members, including 

Contracting Parties to the Convention 

and fishing entities that have agreed to 

be bound by the regime established by 

the Convention. Other entities that 

participate in the WCPFC include 

Participating Territories and 

Cooperating Non-Members. 

Participating Territories participate with 

the authorization of the Contracting 

Parties with responsibility for the 

conduct of their foreign affairs. 

Cooperating Non-Members are 

identified by the WCPFC on a yearly 

basis. In accepting Cooperating NonMember status, such States agree to 

implement the decisions of the WCPFC 

in the same manner as Members. 

The current Members of the WCPFC 

are Australia, Canada, China, Chinese 

Taipei (Taiwan), Cook Islands, 

European Community, Federated States 

of Micronesia, Fiji, France, Japan, 

Kiribati, Korea, Marshall Islands, Nauru, 

New Zealand, Niue, Palau, Papua New 

Guinea, Philippines, Samoa, Solomon 

Islands, Tonga, Tuvalu, United States, 

and Vanuatu. The current Participating 

Territories are French Polynesia, New 

Caledonia and Wallis and Futuna 

(affiliated with France); Tokelau 

(affiliated with New Zealand); and 

American Samoa, the CNMI and Guam 

(affiliated with the United States). The 

Cooperating Non-Members for 2009 are 

Belize, El Salvador, Indonesia, Mexico, 

and Senegal. 

International Obligations of the United 

States under the Convention 

The United States ratified the 

Convention in 2007 and in doing so 

became a Contracting Party to the 

Convention and a Member of the 

WCPFC. From 2004 until that time, the 

United States participated in the 

WCPFC as a Cooperating Non-Member. 

As a Contracting Party to the 

Convention and a Member of the 

WCPFC, the United States is obligated 

to implement the decisions of the 

WCPFC in a legally binding manner. 

The WCPFC Implementation Act (16 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32522 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

U.S.C. 6901 et seq.), enacted in 2007, 

authorizes the Secretary of Commerce, 

in consultation with the Secretary of 

State and the Secretary of the 

Department in which the United States 

Coast Guard (USCG) is operating 

(currently the Department of Homeland 

Security), to promulgate such 

regulations as may be necessary to carry 

out the obligations of the United States 

under the Convention, including the 

decisions of the WCPFC. The authority 

to promulgate regulations has been 

delegated to NMFS. 

WCPFC Decision Regarding Bigeye 

Tuna in Longline Fisheries 

At its Fifth Regular Session, in 

December 2008, the WCPFC adopted 

Conservation and Management Measure 

(CMM) 2008–01 related to bigeye tuna 

and yellowfin tuna (Thunnus albacares) 

in the WCPO. The CMM, available with 

other decisions of the WCPFC at http:// 

www.wcpfc.int/decisions.htm, places 

certain obligations on the WCPFC’s 

Members, Participating Territories, and 

Cooperating Non-members (collectively, 

CCMs). With respect to bigeye tuna, the 

CMM is based in part on the finding by 

the WCPFC Scientific Committee that 

the stock of bigeye tuna in the WCPO is 

experiencing a fishing mortality rate 

greater than the rate associated with 

maximum sustainable yield. The 

Convention calls for the WCPFC to 

adopt measures designed to maintain or 

restore stocks at levels capable of 

producing maximum sustainable yield, 

as qualified by relevant environmental 

and economic factors. Accordingly, 

CMM 2008–01 has the stated objective 

of reducing, over the period 2009–2011, 

the fishing mortality rate for bigeye tuna 

in the WCPO by at least 30 percent from 

a specified historical baseline. Among 

other provisions, the CMM establishes 

specific catch limits for bigeye tuna 

captured in CCMs’ longline fisheries for 

the years 2009, 2010, and 2011. The 

limits do not apply to Participating 

Territories or small island developing 

States undertaking responsible 

development of their domestic fisheries. 

The limits are prescribed relative to 

catches made during specified baseline 

periods, which for the United States is 

2004. For fleets of WCPFC Members 

with bigeye tuna catch baselines of less 

than 5,000 mt and that land exclusively 

fresh fish, the specified limit is the 

baseline level less 10 percent, and is the 

same for each of the years 2009, 2010, 

and 2011. 

Proposed Action 

This proposed rule would provide for 

the timely implementation of the annual 

catch limit for bigeye tuna established 

by the WCPFC for U.S. longline fisheries 

for each of the years 2009 through 2011. 

This proposed rule would not apply to 

the longline fisheries of American 

Samoa, Guam, or the CNMI, as 

described further below. 

The U.S. longline fisheries in the 

WCPO are generally regulated in 

accordance with the Fishery 

Management Plan for the Pelagic 

Fisheries of the Western Pacific Region 

(WP Pelagics FMP) developed by the 

Western Pacific Fishery Management 

Council (WPFMC) and the Fishery 

Management Plan for U.S. West Coast 

Fisheries for Highly Migratory Species 

(West Coast HMS FMP) developed by 

the Pacific Fishery Management Council 

(PFMC), pursuant to the MagnusonStevens Fishery Conservation and 

Management Act (MSA; 16 U.S.C. 1801 

et seq.). As stated above, the WCPFC 

Implementation Act authorizes the 

Secretary of Commerce, who has 

delegated that authority to NMFS, to 

promulgate such regulations as may be 

necessary to implement the decisions of 

the WCPFC. The regulations may, in 

cases where the Secretary of Commerce 

has discretion in implementing the 

decisions of the WCPFC and where the 

regulations would govern fisheries 

under the authority of a Regional 

Fishery Management Council, be 

developed in accordance with the 

procedures established by the MSA to 

the extent practicable within the 

implementation schedule of the 

WCPFC. Accordingly, the MSA process 

could potentially serve to implement 

certain provisions of CMM 2008–01 that 

apply to the U.S. longline fisheries. The 

MSA process involves the development 

of management recommendations by the 

Regional Fishery Management Councils, 

which are then subject to the approval 

of, and implementation by, NMFS. The 

process also involves formal time 

periods for deliberation by the Councils 

and subsequent review, approval, and 

implementation by the Secretary of 

Commerce, through NMFS. 

To comply with the international 

obligations of the United States under 

the Convention, NMFS is issuing a 

proposed rule under the WCPFC 

Implementation Act pertaining to the 

U.S. longline fleets in the Pacific Ocean 

for the discrete and limited purpose of 

implementing the bigeye tuna catch 

limit. Based on the longline fleet’s 

fishing patterns in recent years, the 

proposed limit could be reached or 

exceeded in the third quarter of 2009. 

The WPFMC may wish to evaluate and 

recommend additional management 

measures under the MSA process. 

The bigeye tuna limits established in 

CMM 2008–01 are termed ‘‘catch’’ 

limits. However, the baseline amount of 

bigeye tuna specified for the United 

States in the CMM, from which the limit 

is derived, is from information provided 

to the WCPFC by the United States. That 

information is expressed in terms of 

bigeye tuna that are retained on board, 

not captured, per se. Accordingly, the 

proposed rule would establish a limit on 

retained catches (as a proxy for catches) 

of bigeye tuna. The limit would have the 

purpose of reducing fishing mortality of 

WCPO bigeye tuna. 

Establishment of the Limit 

The annual limit for the United States 

would be established as the amount of 

bigeye tuna captured in the Convention 

Area by the Hawaii and west coast 

longline fleets in 2004 and retained on 

board, less 10 percent. The amount 

captured and retained in 2004, which is 

specified in CMM 2008–01 based on 

information provided by the United 

States to the WCPFC, was 4,181 mt. 

Therefore, the annual limit would be 

3,763 mt. In accordance with CMM 

2008–01, the limit would not apply to 

the longline fisheries of American 

Samoa, Guam, or the CNMI. For the 

purpose of this proposed rule, the 

longline fisheries of these three 

Participating Territories would be 

distinguished from the other longline 

fisheries of the United States as 

described below. 

Under CMM 2008–01, the specified 

bigeye tuna catch limits do not apply to 

the fisheries of Participating Territories, 

including American Samoa, Guam, and 

the CNMI, provided that they are 

undertaking responsible development of 

their domestic fisheries. Because 

fisheries operated out of American 

Samoa, Guam, and the CNMI continue 

to be subject to U.S. fisheries laws and 

regulations, and since these 

Participating Territories generally do 

not exercise management authority over 

fishery resources found beyond their 

submerged lands, applying the longline 

bigeye tuna catch limit provisions of 

CMM 2008–01 raises a number of 

challenging considerations. For the 

purpose of implementing the bigeye 

tuna catch limits of CMM 2008–01, 

NMFS proposes to distinguish the 

longline fisheries of the three 

Participating Territories from the other 

longline fisheries of the United States 

primarily based upon where the bigeye 

tuna are landed. That is, NMFS 

proposes to treat bigeye tuna landed in 

the three Participating Territories, with 

certain exceptions, as fish that are 

harvested in support of the development 

of their domestic fisheries. Assigning 

catches in this manner closely aligns 

with current practice. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32523 

In reporting catches of longlinecaught bigeye tuna to the WCPFC, 

NMFS’ practice has been to attribute 

catches according to where the fish are 

landed. For example, fish that are 

landed in American Samoa are 

attributed to the American Samoa 

fisheries, and fish that are landed in 

Hawaii or on the U.S. west coast are 

attributed to the ‘‘U.S. fisheries’’. Under 

this proposed rule, NMFS would 

continue this practice, with some 

modifications. NMFS proposes that any 

bigeye tuna landed in one of the three 

Participating Territories that was caught 

by longline in the U.S. exclusive 

economic zone (EEZ) surrounding the 

Hawaiian Archipelago would be 

attributed to the ‘‘U.S. fisheries’’ and 

counted against the limit. As a general 

practice, tuna taken within the EEZ 

around Hawaii have been landed in 

Hawaii, and have acquired no direct or 

indirect connection to the fisheries of 

any of the three Participating 

Territories. Under these historic 

circumstances, treating bigeye tuna 

caught in the EEZ around Hawaii and 

landed in one of the three Participating 

Territories as being associated with the 

longline fisheries of that Participating 

Territory would potentially circumvent 

the conservation objectives of CMM 

2008–01. However, bigeye tuna caught 

on the high seas of the Convention Area 

or within the EEZ surrounding the 

Participating Territories or the Pacific 

Island possessions, if landed in one of 

the three Participating Territories, 

would not be subject to the limit, 

provided that the fish are landed by a 

U.S. fishing vessel operated in 

compliance with one of the permits 

required under the regulations 

implementing the WP Pelagics FMP and 

the West Coast HMS FMP; specifically, 

a permit issued under 50 CFR 660.707 

or 665.21. NMFS finds these 

modifications to current practices 

necessary in order to ensure that this 

proposed rule and the fishing patterns 

that result from it are consistent with 

the objectives of CMM 2008–01. 

Announcement of the Limit Being 

Reached 

Once NMFS determines in any of the 

years 2009, 2010, or 2011 that the limit 

is expected to be reached by a specific 

future date in that year, NMFS would 

publish a notice in the Federal Register 

announcing that specific restrictions 

will be effective on that specific future 

date until the end of the calendar year. 

NMFS would publish the notice at least 

seven calendar days before the effective 

date of the restrictions to provide 

fishermen advance notice of the 

restrictions. NMFS would also endeavor 

to make publicly available, such as on 

a web site, regularly updated estimates 

and/or projections of bigeye tuna 

catches in order to help fishermen plan 

for the possibility of the limit being 

reached. 

Prohibited Activities Once the Limit is 

Reached 

Starting on the announced date and 

extending through the last day of that 

calendar year, it would be prohibited to 

use a U.S. fishing vessel to retain on 

board, transship, or land bigeye tuna 

captured in the Convention Area by 

longline gear, except any bigeye tuna 

already on board a fishing vessel upon 

the effective date of the restrictions may 

be retained on board, transshipped, and/ 

or landed, provided that they are landed 

within 14 days after the restrictions 

become effective. In the case of a vessel 

that has declared to NMFS pursuant to 

50 CFR 665.23(a) that the current trip 

type is shallow-setting, the 14–day limit 

would be waived, but the number of 

bigeye tuna retained on board, 

transshipped, or landed must not 

exceed the number on board the vessel 

upon the effective date of the 

restrictions, as recorded by the NMFS 

observer on board the vessel. 

Furthermore, for the same reasons 

described above in establishing the 

proposed limit, bigeye tuna captured by 

longline gear may be retained on board, 

transshipped, and/or landed if they are 

landed in American Samoa, Guam, or 

the CNMI, provided that they were not 

caught in the portion of the EEZ 

surrounding the Hawaiian Archipelago, 

and that they are landed by a U.S. 

fishing vessel operated in compliance 

with a valid permit issued under 50 CFR 

660.707 or 665.21. Starting on the 

announced date and extending through 

the last day of that calendar year, it 

would also be prohibited to transship 

bigeye tuna caught in the Convention 

Area by longline gear to any vessel other 

than a U.S. fishing vessel operated in 

compliance with a valid permit issued 

under 50 CFR 660.707 or 665.21. 

These restrictions would not apply to 

bigeye tuna caught by longline gear 

outside the Convention Area, such as in 

the eastern Pacific Ocean. However, to 

help ensure compliance with the 

restrictions related to bigeye tuna caught 

by longline gear in the Convention Area, 

there would be two additional, related, 

prohibitions that would be in effect 

starting on the announced date and 

extending through the last day of that 

calendar year. First, it would be 

prohibited to fish with longline gear 

both inside and outside the Convention 

Area during the same fishing trip, with 

the exception of a fishing trip that is in 

progress at the time the announced 

restrictions go into effect. In that 

exceptional case, the vessel, unless on a 

declared shallow-setting trip, would 

still be required to land any bigeye tuna 

taken within the Convention Area 

within 14 days of the effective date of 

the restrictions, as described above. 

Second, if a vessel is used to fish using 

longline gear outside the Convention 

Area and the vessel enters the 

Convention Area at any time during the 

same fishing trip, the longline gear on 

the fishing vessel would have to be 

stowed in a manner so as not to be 

readily available for fishing while the 

vessel is in the Convention Area. 

Classification 

The NMFS Assistant Administrator 

has determined that this proposed rule 

is consistent with the WCPFC 

Implementation Act and other 

applicable laws, subject to further 

consideration after public comment. 

NMFS prepared an EA that analyzes 

the effects of the proposed rule on the 

human environment. In the EA, NMFS 

compared the effects of the proposed 

rule and three alternatives to the 

proposed rule, including the no-action 

or baseline alternative and two action 

alternatives. Overall, the expected 

impacts on bigeye tuna and other living 

marine resources from the proposed rule 

or either of the two action alternatives 

are expected to be generally beneficial, 

because they would implement a catch 

limit where one does not currently exist. 

One of the action alternatives would 

prohibit longline fishing once the limit 

is reached, rather than just prohibiting 

the retention, transshipment, and 

landing of bigeye tuna. The other action 

alternative would prohibit deep-set 

longline fishing once the limit is 

reached, allowing shallow-set longline 

fishing in the Convention Area to 

continue, provided that no bigeye tuna 

and no yellowfin tuna are retained, 

transshipped, or landed. Both of these 

alternatives would likely have slightly 

greater beneficial impacts than the 

proposed rule on bigeye tuna and other 

living marine resources in the WCPO, 

but like the proposed rule, both 

alternatives would have only minor 

impacts. The impacts on the human 

environment from the proposed rule 

would be minor for the following 

reasons: the duration of the rule would 

be limited to three years, so unless 

similar or more restrictive actions are 

taken in the future, conditions would 

likely rebound to conditions similar to 

those under the no-action or baseline 

alternative; and the proposed rule 

would likely not cause substantial 

changes to the fishing practices and 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32524 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

patterns of the affected fleets. However, 

other present and reasonably foreseeable 

future actions for the conservation and 

management of HMS could cause 

similar beneficial effects. Together with 

the effects of those actions, the 

cumulative impacts on the affected 

environment of the proposed action 

could be greater than if the proposed 

rule were implemented in isolation. 

Specifically, implementation by the 

United States of the provisions of CMM 

2008–01 applicable to purse seine 

vessels (which NMFS intends to do via 

a separate rulemaking) and 

implementation by other CCMs of the 

provisions of the CMM would enhance 

the beneficial impacts to bigeye tuna 

and other living marine resources. If the 

WCPFC adopts (and CCMs implement) 

similar or more restrictive measures 

after the three-year duration of CMM 

2008–01, the beneficial impacts would 

be further enhanced (e.g., there could be 

a greater likelihood of attaining the 

objective of the CMM). In addition, 

should the Inter-American Tropical 

Tuna Commission (IATTC) adopt catch 

limits or other fishery restrictions for 

bigeye tuna, any shift in fishing effort to 

the eastern Pacific Ocean (EPO) from the 

proposed rule would be reduced and the 

beneficial effects on bigeye tuna would 

be increased. The stock structure of 

bigeye tuna in the Pacific Ocean is not 

well known, but there is some degree of 

mixing between fish in the EPO and fish 

in the WCPO, so any fishing mortality 

in the EPO would likely affect the status 

of the stock in the WCPO. The economic 

impacts of the proposed rule are 

addressed in the EA only insofar as they 

are related to impacts to the biophysical 

environment. Economic impacts are 

addressed more fully in the RIR and 

IRFA. A copy of the EA is available from 

NMFS (see ADDRESSES). 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the 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 preamble. The 

analysis follows: 

The proposed rule would apply to 

owners and operators of U.S. vessels 

used for fishing using longline gear in 

the Convention Area, except those that 

are part of the longline fleets of 

American Samoa, Guam, and the CNMI. 

The total number of affected vessels is 

approximated by the number of vessels 

with Hawaii Longline Limited Access 

Permits (issued under 50 CFR 665.21). 

There are 164 such permits available. 

During the period 2006–2008 the 

number of vessels permitted ranged 

from 121 to 140. The number of vessels 

actually permitted as of February 2009 

was 132. Owners and operators of U.S. 

longline vessels based on the U.S. west 

coast would also be affected by this 

proposed rule, but based on the 

inactivity of that fleet in the Convention 

Area since 2005, it is expected that very 

few, if any, such vessels would be 

affected. The Hawaii longline fleet 

targets bigeye tuna using deep sets, and 

during certain parts of the year, portions 

of the fleet target swordfish using 

shallow sets. In each of the years 2005 

through 2008, the estimated numbers of 

Hawaii longline vessels that fished were 

124, 127, 129, and 128, respectively. Of 

those vessels, the numbers that engaged 

in deep-setting were 124, 127, 129, and 

127, and the numbers that engaged in 

shallow-setting were 31, 35, 27, and 24, 

respectively. The numbers that did both 

were 31, 35, 27, and 23, respectively. 

Most of the fleet’s fishing effort has 

traditionally been in the Convention 

Area, but fishing has also taken place to 

the east of the Convention Area, as 

described further below. As an 

indication of the size of businesses in 

the fishery, average annual fleet-wide 

ex-vessel revenues during 2005–2007 

were about $60 million. Given the 

number of vessels active during that 

period (127, on average), this indicates 

an average of about $0.5 million in 

annual revenue per vessel. Therefore, 

NMFS has determined that all vessels in 

the fishery are small entities based on 

the Small Business Administration’s 

definition of a small fish harvester (i.e., 

gross annual receipts of less than $4.0 

million). 

The proposed rule would not 

establish any new reporting or 

recordkeeping requirements. The new 

compliance requirement would be for 

affected vessel owners and operators to 

cease retaining, landing, and 

transshipping bigeye tuna caught with 

longline gear in the Convention Area 

when the limit is reached in any of the 

years 2009, 2010, and 2011, for the 

remainder of the calendar year (with the 

exceptions and provisos described at the 

beginning of this section in the 

preamble). Fulfillment of this 

requirement is not expected to require 

any professional skills that the vessel 

owners and operators do not already 

possess. 

Complying with the proposed rule 

could cause foregone fishing 

opportunities and associated economic 

losses in the event that the bigeye tuna 

limit is reached and the restrictions on 

retaining, landing, and transshipping 

bigeye tuna are imposed. These costs 

cannot be projected with any 

quantitative certainty. For the purpose 

of projecting baseline conditions under 

no action, this analysis relies on fishery 

performance from 2005 through 2008, 

since prior to 2005 the regulatory 

environment underwent major changes 

(the swordfish-directed shallow-set 

longline fishery was closed in 2001 and 

reopened in 2004 with limits on fishing 

effort and turtle interactions). Bigeye 

tuna catches (here and in the remainder 

of this IRFA, ‘‘catches’’ means fish that 

are caught and retained on board) from 

2005 through 2008 suggest that there is 

a high likelihood of the proposed limit 

being reached in any of the years during 

which the limit would be in effect 

(2009, 2010, and 2011). The proposed 

limit, by prescription, is 10 percent less 

than the amount caught in the 

Convention Area in 2004. The proposed 

limit of 3,763 mt is less than the amount 

caught in any of the years 2005–2008, 

and it is 20 percent less than the annual 

average amount caught in that period. 

Furthermore, there has been an upward 

trend in annual bigeye tuna catches in 

the years 2005 through 2008. 

If the bigeye tuna limit is reached in 

a given year, it can be expected that 

affected vessels would shift to the next 

most profitable fishing opportunity 

(which might be not fishing at all). 

Revenues from that alternative activity 

reflect the opportunity costs associated 

with longline fishing for bigeye tuna in 

the Convention Area. Therefore, the 

economic cost of the proposed rule is 

assumed to be less than the nominal 

losses incurred by the bigeye tuna limit 

and associated restrictions. 

Upper bounds on potential economic 

costs can be estimated by examining the 

projected value of longline landings 

from the Convention Area that would 

not be made as a result of reaching the 

limit. Two no-action scenarios are used 

for the purpose of this analysis. In the 

more conservative scenario, it is 

assumed that fishing patterns in 2009– 

2011 would not depart from recent 

patterns; specifically, annual catches in 

2009–2011 would be equal to the 

averages observed during 2005–2008. In 

the less conservative no-action scenario, 

it is assumed that the increasing trend 

in bigeye tuna catches in 2005–2008 

would continue in 2009–2011 (there 

may be factors that inhibit continuation 

of the trend, such as the limit on vessel 

numbers, or the possibility of the size of 

the exploitable stock decreasing; 

nonetheless, continuation of the trend 

appears to be plausible). Average annual 

catches of bigeye tuna from the longline 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32525 

fishery in the Convention Area in 2005– 

2008, as estimated by NMFS based on 

numbers of fish caught by date of 

capture from vessel logbook data, and 

average fish weights derived from 

landings data, were 4,712 mt. The 

upward trend in bigeye tuna catches in 

2005–2008 (for the entire fishery, not 

limited to catches in the Convention 

Area), was an average annual increase of 

about 8 percent. If this rate continued, 

catches of bigeye tuna from the 

Convention Area in 2009, 2010, and 

2011 would be about 5,300, 5,700, and 

6,200 mt, respectively. Thus, with 

respect to the first no-action scenario, 

imposition of a catch limit of 3,763 mt 

would be expected to result in 20 

percent less bigeye tuna being caught in 

2009–2011 than under no action. With 

respect to the second no-action scenario, 

the limit would be expected to result in 

29, 34, and 39 percent less bigeye tuna 

being caught in 2009, 2010, and 2011, 

respectively, than under no action (and 

over the entire 2009–2011 period, 34 

percent less). In the deep-set fishery, 

catches of marketable species other than 

bigeye tuna would likely be affected in 

a similar way. After the limit is reached 

and landings are restricted, prices of 

bigeye tuna (e.g., that are caught in the 

EPO), as well as of other species landed 

by the fleet, could increase and thereby 

mitigate (to the extent vessels continue 

to fish and make landings) economic 

losses. Assuming no effects on prices, 

over the years 2009–2011, revenues to 

entities that participate exclusively in 

the deep-set fishery under the proposed 

rule would be, under the first no-action 

scenario, about 20 percent less than 

under no action, and under the second 

no-action scenario, about 34 percent 

less. If, under the more conservative noaction scenario, average annual exvessel revenues during 2005–2007 

(about $0.5 million per vessel) are a 

good indicator of future revenues under 

no action, average per-vessel annual 

revenues under the proposed rule 

would be about $0.1 million less than 

under no action. Under the less 

conservative no-action scenario, if exvessel revenues under no action were to 

increase in proportion to bigeye tuna 

catches (8 percent annually), average 

per-vessel annual revenues under the 

proposed rule would be about $0.2 

million less than under no action. 

Again, these estimates are for the 

purpose of estimating upper bounds on 

potential economic losses and do not 

account for revenues from alternative 

activities, some of which are discussed 

further below. 

Impacts on profits would be less than 

impacts on revenues, because operating 

costs would be lower if a vessel ceases 

fishing after the catch limit is reached. 

Variable costs can be expected to be 

affected roughly in proportion to 

revenues, as both would stop accruing 

once a vessel stops fishing. But 

operating costs also include fixed costs, 

which are borne regardless of whether 

or not a vessel is used to fish. Thus, 

profits would be dampened 

proportionately more than revenues. 

In addition to leading to lost revenues 

due to landing less fish, a prohibition on 

landing bigeye tuna could cause a 

decrease in ex-vessel prices paid for 

bigeye tuna and other products landed 

by affected entities. An interruption in 

supply of bigeye tuna and other species 

from the Hawaii longline fleet could 

result in the Hawaii market shifting to 

alternative sources of bigeye tuna. If 

such a shift were temporary; that is, 

limited to the duration of the 

prohibition on bigeye tuna landings, 

which would likely be a matter of weeks 

or months, then prices (once the 

prohibition is lifted) would probably not 

be affected. If, on the other hand, it 

leads to a more permanent change in the 

market (e.g., as a result of buyers 

wanting to mitigate the uncertainty in 

the continuity of supply from the 

Hawaii longline fishery), then locally 

caught bigeye tuna could face stiffer 

competition with bigeye tuna sourced 

elsewhere and consequently be subject 

to less demand (volume) and fetch 

lower prices than it would under the noaction scenario. In that event, revenues 

earned by affected entities would be 

impacted accordingly. It is not possible 

to predict the likelihood of this 

occurring or predict the magnitude of 

the economic effects. 

As stated previously, actual 

compliance costs for a given entity 

might be less than the upper bounds 

described above because ceasing fishing 

would not necessarily be the most 

profitable opportunity in the event of 

the catch limit being reached. 

Alternative opportunities that would 

appear to be relatively attractive to 

affected entities include: (1) deep-set 

longline fishing for bigeye tuna and 

other species to the east of 150 W. long. 

boundary line of the Convention Area 

(the EPO), where there is currently no 

limit on bigeye tuna catches; (2) 

shallow-set longline fishing for 

swordfish in the Convention Area or the 

EPO; and (3) deep-set longline fishing in 

the Convention Area for species other 

than bigeye tuna. A fourth opportunity 

is also identified, but because its 

economic viability appears marginal at 

this time, it is discussed only briefly. 

This is deep-set longline fishing for 

bigeye tuna in the Convention Area and 

landing the bigeye tuna in American 

Samoa, Guam, or the CNMI (instead of 

Hawaii, the traditional landing point 

and main market). This would be 

permissible provided that the bigeye 

tuna were not caught in the portion of 

the EEZ around the Hawaiian Islands 

and they are landed by a U.S. vessel 

operated in compliance with a permit 

issued under the WP Pelagics FMP or 

the West Coast HMS FMP. 

Before examining each of these 

potential opportunities in detail, it is 

important to note that under the 

proposed rule, it would be prohibited to 

fish with longline gear both inside and 

outside the Convention Area during the 

same trip (with the exception of a 

fishing trip that is in progress when the 

limit is reached and the restrictions go 

into effect). For example, after the 

restrictions go into effect, during a given 

fishing trip, a vessel could be used for 

longline fishing for bigeye tuna in the 

EPO or longline fishing for species other 

than bigeye tuna in the Convention 

Area, but not both. This reduced 

operational flexibility would bring 

costs, since it would constrain the 

potential profits from alternative 

opportunities collectively. Those costs 

cannot be quantified. 

(1) With respect to deep-set fishing in 

the EPO, the proportion of the fishery’s 

annual bigeye tuna catches that were 

captured in the EPO from 2005 through 

2008 ranged from 2 percent to 22 

percent, and averaged 11 percent. In 

2005–2007, that proportion, which 

ranged from 2 percent to 11 percent, 

may have been constrained by the 

bigeye tuna catch limits established by 

NMFS to implement the decisions of the 

IATTC, the counterpart of the WCPFC in 

the EPO. By far most of the U.S. annual 

EPO bigeye tuna catch has typically 

been made in the second and third 

quarters of the year: in the period 2005– 

2008 the percentages caught in the first, 

second, third, and fourth quarters were 

9, 25, 62, and 4 percent, respectively. 

These two historical patterns that 

relatively little of the bigeye tuna catch 

in the longline fishery has typically 

been made in the EPO (2–22 percent in 

2005–2008) and that most EPO bigeye 

tuna catches have been made in the 

second and third quarters, with 

relatively few catches in the fourth 

quarter, when the catch limit would 

most likely be reached, suggest it would 

be relatively costly for at least some 

affected entities to shift to deep-set 

fishing in the EPO in the event of the 

limit being reached in the Convention 

Area. Furthermore, if the IATTC adopts 

bigeye tuna catch limits for the EPO for 

any of the years 2009–2011, the ability 

of business entities affected by this 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32526 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

proposed rule to shift fishing effort to 

the EPO would, of course, be 

constrained accordingly. 

(2) With respect to the opportunity of 

shallow-set longline fishing for 

swordfish, entities that already engage 

in this component of the fishery and 

that would do so under the no-action 

scenario would bear little cost in the 

event of the limit being reached. The 

cost would be approximately equal to 

the revenues lost from not being able to 

retain or land bigeye tuna captured 

while shallow-setting in the Convention 

Area, or the cost, taking into account 

opportunity costs, of shifting to shallowsetting in the EPO, whichever is less. In 

the fourth quarters of 2005–2008, almost 

all shallow-setting effort took place in 

the EPO, and 96 percent of bigeye tuna 

catches were made there, so the 

opportunity cost would appear to be 

very little. During 2005–2008, the 

shallow-set fishery caught an annual 

average of 55 mt of bigeye tuna from the 

Convention Area. If the bigeye tuna 

catch limit is reached on September 30 

(or even as early as July 31) in a given 

year, the WCPO shallow-set fishery at 

that point would be, on average, based 

on 2005–2008 data, 99 percent through 

its average annual bigeye tuna catches. 

Thus, imposition of the landings 

prohibition on September 30 could 

result in the loss of revenues from 

approximately 0.6 mt (1 percent of 55 

mt) of bigeye tuna, which, based on 

recent ex-vessel prices, would be worth 

about $5,000. Expecting about 29 

vessels to engage in the shallow-set 

fishery (the annual average in 2005– 

2008), the average value of those 

potentially lost annual revenues would 

be about $170 per vessel. These 

potential impacts are relatively small, 

but one additional effect could lead to 

greater costs to entities that engage in 

the shallow-set fishery. 

Entities that have not historically 

participated in the shallow-set fishery 

would, in the event of the limit being 

reached, have a greater incentive to 

engage in shallow-setting than they 

otherwise would, so participation in the 

shallow-set fishery could be greater as a 

result of the catch limit being reached. 

Participation and fishing effort would be 

constrained, however, by the existing 

annual limits on the number of sets that 

may be made (2,120) and on the number 

of interactions that may occur with 

loggerhead (17) and leatherback (16) 

turtles. In the four full years that these 

limits have been in place, the fishery 

has been closed once (2006) as a result 

of reaching one of the turtle interaction 

limits. In the remaining three years 

(2005, 2007, and 2008), 76 percent, 76 

percent, and 77 percent, respectively, of 

the 2,120–set limit on fishing effort was 

used. To the extent that participation 

and fishing effort in the shallow-set 

fishery are greater as a result of this 

proposed rule, traditional participants 

would bear costs associated with the 

greater competition for the available 

fishing effort. Those costs cannot be 

projected, but they are likely to be 

reflected in the price of shallow-set 

certificates, which each year are 

distributed free of charge and in equal 

shares to all holders of Hawaii Longline 

Limited Access Permits and 

subsequently traded among fishery 

participants. Increased competition in 

the shallow-set fishery could also lead 

lower prices for swordfish as a result of 

greater supply, and consequently lower 

returns to entities engaged in the 

shallow-set fishery. The costs could also 

be reflected in a higher likelihood of the 

turtle interaction limits being reached 

and the shallow-set fishery being closed 

(at all or earlier in the year than it 

otherwise would). It should be noted 

that the WPFMC has recommended that 

the shallow-set effort limit be removed 

and that the loggerhead interaction limit 

be increased. NMFS, which is 

responsible for approving and 

implementing (in this case, via 

rulemaking) recommendations of the 

WPFMC, has not yet acted on the 

WPFMC recommendations. If the 

recommendations are approved and 

implemented, there would be more 

potential for fishing effort to shift to the 

shallow-set fishery. 

(3) The opportunity of deep-setting in 

the Convention Area for species other 

than bigeye tuna would seem, based on 

the lack of such fishing activity in the 

past, to be the least attractive and 

costliest of the three alternative 

opportunities examined here. 

Nonetheless, it is possible that affected 

entities could find it economically 

viable to place greater emphasis on 

targeting yellowfin tuna, albacore and 

other species that have in the past 

contributed relatively little to ex-vessel 

revenues in the fishery. Next to bigeye 

tuna, yellowfin tuna has been the most 

valuable species in the deep-set fishery, 

but the catch per unit of effort (CPUE) 

for yellowfin tuna has been 

considerably less than for bigeye tuna. 

The average annual CPUE for yellowfin 

tuna during 2005–2007 was 0.84 fish 

per 1,000 hooks, as compared to 3.73 

fish per 1,000 hooks for bigeye tuna. 

Thus, unless fishing methods can be 

adjusted in ways to substantially 

increase catch rates (and/or weights) of 

species other than bigeye tuna, revenues 

per unit of effort would be substantially 

less during a bigeye tuna landings 

prohibition period. The extent to which 

such adjustments could be made is not 

known. Even if deep-set fishing is not 

an economically attractive opportunity 

without the ability to land bigeye tuna, 

it might be worthwhile for trips during 

which the limit is reached. In other 

words, after bigeye tuna restrictions 

become effective, it would allow vessels 

at sea to continue fishing to top off their 

holds with species other than bigeye 

tuna and thereby have the potential to 

lessen the adverse impacts of the 

restrictions. 

Finally, with respect to deep-set 

longline fishing for bigeye tuna in the 

Convention Area and landing the fish in 

American Samoa, Guam, or the CNMI, 

there are three potentially critical 

constraints to this opportunity. First, 

whether the fish are landed by the 

vessel that caught the fish or by a vessel 

to which the fish were transshipped, the 

costs of a vessel steaming from the 

traditional fishing grounds in the 

vicinity of Hawaii to one of the 

territories would be substantial. Second, 

none of these three locales has large 

markets to absorb additional fresh 

sashimi-grade bigeye tuna. Third, 

transporting the bigeye tuna from these 

locales to larger markets, such as in 

Hawaii or Japan, would bring 

substantial costs. These cost constraints 

suggest that this opportunity has little 

potential to mitigate the economic 

impacts of the proposed rule on affected 

small entities. 

The potential economic effects 

identified above would vary among 

individual business entities, but it is not 

possible to predict the range of 

variation. 

All affected entities are believed to be 

small entities, so small entities would 

not be disproportionately affected 

relative to large entities. 

NMFS has not identified any Federal 

rules that duplicate, overlap or conflict 

with the proposed rule. 

NMFS has identified two alternatives 

to the proposed rule (in addition to the 

no-action alternative). One would 

prohibit longline fishing in the 

Convention Area once the limit is 

reached, rather than just prohibiting the 

retention, landing, and transshipment of 

bigeye tuna caught by longline in the 

Convention Area. The other alternative 

would prohibit deep-set longline fishing 

once the limit is reached, allowing 

shallow-set longline fishing in the 

Convention Area to continue, provided 

that no bigeye tuna and no yellowfin 

tuna are retained, landed, or 

transshipped. Both alternatives would 

result in greater economic impacts, 

relative to those of the proposed rule, on 

small entities, as they would narrow the 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 32527 

available opportunities in the event the 

catch limit is reached. NMFS prefers the 

proposed action over the two action 

alternatives because it would result in 

lesser adverse economic impacts. NMFS 

also considered the no-action 

alternative. Among all the alternatives, 

no action would have the least adverse 

economic impacts on affected entities in 

the short term, but NMFS has 

determined that it would fail to 

accomplish the objectives of the WCPFC 

Implementation Act, including 

satisfying the international obligations 

of the United States as a Contracting 

Party to the Convention. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: July 1, 2009. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 50 CFR part 300, subpart O, 

which was proposed to be added on 

May 22, 2009 (74 FR 23965) and was 

proposed to be further amended on June 

1, 2009 (74 FR 26160), is proposed to be 

further amended as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart O—Western and Central 

Pacific Fisheries for Highly Migratory 

Species 

1. The authority citation for 50 CFR 

part 300, subpart O, continues to read as 

follows: 

Authority: 16 U.S.C. 6901 et seq. 

2. In § 300.211, definitions of ‘‘Fishing 

trip’’, ‘‘Hawaiian Archipelago’’ and 

‘‘Longline gear’’ are added, in 

alphabetical order, to read as follows: 

§ 300.211 Definitions. 

* * * * * 

Fishing trip means a period of time 

during which a fishing vessel is used for 

fishing, beginning when the vessel 

leaves port and ending when the vessel 

lands fish. 

* * * * * 

Hawaiian Archipelago means the 

Main and Northwestern Hawaiian 

Islands, including Midway Atoll. 

* * * * * 

Longline gear means a type of fishing 

gear consisting of a main line that 

exceeds 1 nautical mile in length, is 

suspended horizontally in the water 

column either anchored, floating, or 

attached to a vessel, and from which 

branch or dropper lines with hooks are 

attached; except that, within the 

protected species zone, longline gear 

means a type of fishing gear consisting 

of a main line of any length that is 

suspended horizontally in the water 

column either anchored, floating, or 

attached to a vessel, and from which 

branch or dropper lines with hooks are 

attached, where ‘‘protected species 

zone’’ is used as defined at § 665.12 of 

this title. 

* * * * * 

3. In § 300.222, paragraphs (bb), (cc) 

and (dd) are added to read as follows: 

§ 300.222 Prohibitions. 

* * * * * 

(bb) Use a fishing vessel to retain on 

board, transship, or land bigeye tuna 

captured by longline gear in the 

Convention Area or to fish in 

contravention of § 300.224(d)(1) or 

(d)(2). 

(cc) Use a fishing vessel to fish in the 

Pacific Ocean using longline gear both 

inside and outside the Convention Area 

on the same fishing trip in 

contravention of § 300.224(d)(3). 

(dd) Fail to stow longline gear as 

required in § 300.224(d)(4). 

4. A new § 300.224 is added to read 

as follows: 

§ 300.224 Longline fishing restrictions. 

(a) For each of the years 2009, 2010, 

and 2011, there is a limit of 3,763 metric 

tons of bigeye tuna that may be captured 

by longline gear in the Convention Area 

by fishing vessels of the United States 

during the calendar year and retained 

on board. 

(b) Bigeye tuna landed in American 

Samoa, Guam, or the Commonwealth of 

the Northern Mariana Islands will not 

be counted against the limits established 

under paragraph (a) of this section, 

provided that: 

(1) The bigeye tuna were not caught 

in the portion of the exclusive economic 

zone surrounding the Hawaiian 

Archipelago; and 

(2) The bigeye tuna were landed by a 

fishing vessel operated in compliance 

with a valid permit issued under 

§ 660.707 or § 665.21 of this title. 

(c) NMFS will monitor retained 

catches of bigeye tuna with respect to 

the limit established under paragraph 

(a) of this section in each of the calendar 

years using data submitted in logbooks 

and other available information. After 

NMFS determines that the limit in any 

of the applicable years is expected to be 

reached by a specific future date, and at 

least seven calendar days in advance of 

that specific future date, NMFS will 

publish a notice in the Federal Register 

announcing that specific prohibitions 

will be in effect starting on that specific 

future date and ending at the end of the 

calendar year. 

(d) Once an announcement is made 

pursuant to paragraph (c) of this section, 

the following restrictions will apply 

during the period specified in the 

announcement: 

(1) A fishing vessel of the United 

States may not be used to retain on 

board, transship, or land bigeye tuna 

captured by longline gear in the 

Convention Area, except as follows: 

(i) Any bigeye tuna already on board 

a fishing vessel upon the effective date 

of the prohibitions may be retained on 

board, transshipped, and/or landed, to 

the extent authorized by applicable laws 

and regulations, provided that they are 

landed within 14 days after the 

prohibitions become effective. In the 

case of a vessel that has declared to 

NMFS, pursuant to § 665.23(a) of this 

title, that the current trip type is 

shallow-setting, the 14–day limit is 

waived, but the number of bigeye tuna 

retained on board, transshipped, or 

landed must not exceed the number on 

board the vessel upon the effective date 

of the prohibitions, as recorded by the 

NMFS observer on board the vessel. 

(ii) Bigeye tuna captured by longline 

gear may be retained on board, 

transshipped, and/or landed if they are 

landed in American Samoa, Guam, or 

the Commonwealth of the Northern 

Mariana Islands, provided that: 

(A) The bigeye tuna were not caught 

in the portion of the exclusive economic 

zone surrounding the Hawaiian 

Archipelago; 

(B) Such retention, transshipment, 

and/or landing is in compliance with 

applicable laws and regulations; and 

(C) The bigeye tuna are landed by a 

fishing vessel operated in compliance 

with a valid permit issued under 

§ 660.707 or § 665.21 of this title. 

(2) Bigeye tuna caught by longline 

gear in the Convention Area may not be 

transshipped to a fishing vessel unless 

that fishing vessel is operated in 

compliance with a valid permit issued 

under § 660.707 or § 665.21 of this title. 

(3) A fishing vessel of the United 

States may not be used to fish in the 

Pacific Ocean using longline gear both 

inside and outside the Convention Area 

during the same fishing trip, with the 

exception of a fishing trip during which 

the prohibitions were put into effect as 

announced under paragraph (c) of this 

section, in which case the provisions of 

paragraphs (d)(1)(i) and (d)(1)(ii) of this 

section still apply. 

(4) If a fishing vessel of the United 

States is used to fish in the Pacific 

Ocean using longline gear outside the 

Convention Area and the vessel enters 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

32528 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules 

the Convention Area at any time during 

the same fishing trip, the longline gear 

on the fishing vessel must, while in the 

Convention Area, be stowed in a 

manner so as not to be readily available 

for fishing; specifically, the hooks, 

branch or dropper lines, and floats used 

to buoy the mainline must be stowed 

and not available for immediate use, 

and any power-operated mainline 

hauler on deck must be covered in such 

a manner that it is not readily available 

for use. 

[FR Doc. E9–16094 Filed 7–7–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 0906241088–91089–01] 

RIN 0648–AX92 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; 

Commercial Sector of the Reef Fish, 

Queen Conch, and Spiny Lobster 

Fisheries of Puerto Rico and the U.S. 

Virgin Islands; Control Date 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; consideration of a control 

date. 

SUMMARY: NMFS announces that it is 

establishing a control date that may be 

used to control future access to the 

commercial sector of the reef fish, queen 

conch, and spiny lobster fisheries 

operating in the exclusive economic 

zone (EEZ) of the U.S. Caribbean. If 

changes to the management regime are 

developed and implemented under the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act), a control date 

could be used to limit the number of 

participants in these fisheries. This 

announcement is intended, in part, to 

promote awareness of the potential 

eligibility criteria for future access so as 

to discourage speculative entry into the 

fisheries while the Caribbean Fishery 

Management Council (Council) and 

NMFS consider whether and how access 

to the commercial sector of the reef fish, 

queen conch, or spiny lobster fishery 

should be controlled. 

DATES: Comments must be received by 

August 7, 2009. 

ADDRESSES: Comments, identified by 

RIN 0648–AX92, may be submitted by 

any one of the following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Mail: Jason Rueter, NMFS Southeast 

Regional Office, Sustainable Fisheries 

Division, 263 13th Avenue South, Saint 

Petersburg, Florida 33701. 

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. 

To submit comments through the 

Federal eRulemaking Portal: http:// 

www.regulations.gov enter ‘‘NOAANMFS–2009–0137’’ in the keyword 

search, then select ‘‘Send a Comment or 

Submission.’’ 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. 

FOR FURTHER INFORMATION CONTACT: 

Jason Rueter; phone 727–824–5305; fax 

727–824–5308; or Graciela GarciaMoliner; phone 787–766–5927; fax 787– 

766–6239. 

SUPPLEMENTARY INFORMATION: The 

commercial sector of the U.S. Caribbean 

reef fish fishery is managed under the 

Fishery Management (FMP) Plan for the 

Reef Fish Resources of Puerto Rico and 

the U.S. Virgin Islands, the commercial 

sector of the U.S. Caribbean queen 

conch fishery is managed under the 

FMP for the Queen Conch Resources of 

Puerto Rico and the U.S. Virgin Islands, 

and the commercial sector of the U.S. 

Caribbean spiny lobster fishery is 

managed under the FMP for the Spiny 

Lobster Resources of Puerto Rico and 

the U.S. Virgin Islands. The FMPs were 

prepared by the Council, and 

implemented under the authority of the 

Magnuson-Stevens Act. 

This notice would inform participants 

in the U.S. Caribbean reef fish, queen 

conch, and spiny lobster fisheries of the 

Council’s intentions to consider limiting 

access within the commercial sector of 

the U.S. Caribbean reef fish, queen 

conch, or spiny lobster fisheries. 

Specifically, the Council may consider 

requiring a permit that would limit 

fishing in the EEZ to only those 

participants that have catch histories in 

excess of some minimum landings 

threshold or to those participants who 

possess a valid Territorial/ 

Commonwealth Permit. Should the 

Council take such future action to 

further restrict participation in the 

commercial sector of the U.S. Caribbean 

reef fish, queen conch, or spiny lobster 

fishery, it intends to use March 24, 

2009, as a possible control date 

regarding the eligibility of catch 

histories. This date was announced at 

the Council’s March 2009 meeting. 

Publication of the control date in the 

Federal Register informs participants of 

the Council’s considerations, and gives 

notice to anyone entering the fisheries 

after the control date they would not be 

assured of future access should a 

management regime be implemented 

using the control date as a means to 

restrict participation. Implementation of 

any such program would require 

preparation of an amendment to the 

FMPs and subsequent rulemaking with 

appropriate public comment periods. 

Consideration of a control date does 

not commit the Council or NMFS to any 

particular management regime or 

criteria for eligibility in the commercial 

sector of the U.S. Caribbean reef fish, 

queen conch, or spiny lobster fishery. 

The Council may or may not make use 

of this control date as part of the 

qualifying criteria for participation in 

that sector of the fisheries. Fishermen 

are not guaranteed future participation 

in a fishery regardless of their entry date 

or intensity of participation in the 

fishery before or after the control date 

under consideration. The Council 

subsequently may choose a different 

control date or management regime that 

does not make use of a control date. The 

Council also may choose to take no 

further action to control entry or access 

to the fisheries, in which case the 

control date may be rescinded. 

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

Dated: July 1, 2009. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

[FR Doc. E9–16069 Filed 7–7–09; 8:45 am] 

BILLING CODE 3510–22–S 

mstockstill on DSKH9S0YB1PROD with PROPOSALS