        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 050310069-5069-01; I.D. 030205C]
        RIN 0648-XB30
        Listing Endangered and Threatened Species and Designating Critical Habitat: Petition to List Puget Sound Steelhead as an Endangered or Threatened Species under the Endangered Species Act

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

          ACTION:
          Notice of finding; request for information; and initiation of status review.

          SUMMARY:

          NMFS received a petition from Mr. Sam Wright on September 13, 2004, to list Puget Sound (Washington) steelhead (Oncorhynchus mykiss) as a threatened or endangered species under the Endangered Species Act (ESA). NMFS finds that the petition presents substantial scientific and commercial information indicating that the petitioned action may be warranted. Accordingly, NMFS is initiating a status review of the species. To ensure that the status review is complete and based upon the best available scientific and commercial information, NMFS is soliciting information regarding the viability of, and threats to, Puget Sound O. mykiss populations, efforts being made to protect the species, and the names of potential peer reviewers.

          DATES:
          Information and comments on the subject action must be received by June 6, 2005

          ADDRESSES:

          You may submit comments and information by any of the following methods. Please identify submittals as pertaining to the “Puget Sound O. mykiss status review update.”
          • E-mail: PS.Omykiss.nwr@noaa.gov. Include “Puget Sound O. mykiss status review update” in the subject line of the message.
          • Federal e-rulemaking portal: http://www.regulations.gov

          • Mail: Submit written comments and information to Chief, NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. You may hand-deliver written comments to our office during normal business hours at the street address given above.
          • Hand Delivery/Courier: NMFS, Protected Resources 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232.
          • Fax: 503-230-5441

          FOR FURTHER INFORMATION CONTACT:
           For further information regarding this action contact Garth Griffin, NMFS, Northwest Region, (503) 231-2005, or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401.

        SUPPLEMENTARY INFORMATION:
        Background

        On September 13, 2004, NMFS received a petition from Mr. Sam Wright of Olympia, WA, to list Puget Sound steelhead as an endangered or threatened species under the ESA, and to designate critical habitat. Copies of the petition are available from NMFS by request, or on the Internet (See ADDRESSES section, above, and “References” section, below).
        ESA Statutory and Policy Provisions

        Section 4(b)(3) of the ESA contains provisions concerning petitions from interested persons requesting the Secretary of Commerce (Secretary) to list species under the ESA (16 U.S.C. 1533(b)(3)(A)). Section 4(b)(3)(A) requires that, to the maximum extent practicable, within 90 days after receiving such a petition, the Secretary make a finding whether the petition presents substantial scientific and commercial information indicating that the petitioned action may be warranted. NMFS' ESA implementing regulations define Asubstantial information@ as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating a petitioned action, the Secretary considers several factors, including whether the petition contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species (50 CFR 424.14(b)(2)(ii)). In addition, the Secretary considers whether the petition provides information regarding the status of the species over all or a significant portion of its range (50 CFR 424.14(b)(2)(iii)).

        To be considered for listing under the ESA, a group of organisms must constitute a “species,” which is defined in section 3 of the ESA to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (emphasis added). NMFS has determined that, to qualify as a distinct population segment (DPS), a Pacific salmon or O. mykiss population must be substantially reproductively isolated and represent an important component in the evolutionary legacy of the biological species. A population meeting these criteria is considered to be an “evolutionarily significant unit” (ESU) (56 FR 58612, November 20, 1991). In its listing determinations for Pacific salmonids under the ESA, NMFS has treated an ESU as constituting a DPS, and hence a “species,” under the ESA.
        Life History of West Coast O. mykiss

        Steelhead is the name commonly applied to the anadromous form of the biological species O. mykiss. The present distribution of steelhead extends from Kamchatka in Asia, east to Alaska, and down to the U.S. Mexico border (Busby et al., 1996; 67 FR 21586, May 1, 2002). O. mykiss exhibit perhaps the most complex suite of life history traits of any species of Pacific salmonid. They can be anadromous (“steelhead”), or freshwater residents (“rainbow or redband trout”), and under some circumstances yield offspring of the opposite life-history form. Those that are anadromous can spend up to 7 years in freshwater prior to smoltification (the physiological and behavioral changes required for the transition to salt water), and then spend up to 3 years in salt water prior to first spawning. O. mykiss is also iteroparous (meaning individuals may spawn more than once), whereas the Pacific salmon species are principally semelparous (meaning individuals generally spawn once and die). Within the range of West Coast steelhead, spawning migrations occur throughout the year, with seasonal peaks of activity. In a given river basin there may be one or more peaks in migration activity; since these “runs” are usually named for the season in which the peak occurs, some rivers may have runs known as winter, spring, summer, or fall steelhead.
        Steelhead can be divided into two basic reproductive ecotypes, based on the state of sexual maturity at the time of river entry and duration of spawning migration (Burgner et al., 1992). The summer or “stream-maturing” type enters fresh water in a sexually immature condition between May and October, and requires several months to mature and spawn. The winter or “ocean-maturing” type enters fresh water between November and April with well-developed gonads and spawns shortly thereafter. In basins with both summer and winter steelhead runs, the summer run generally occurs where habitat is not fully utilized by the winter run, or where an ephemeral hydrologic barrier separates them, such as a seasonal waterfall,. Summer steelhead usually spawn farther upstream than winter steelhead (Withler, 1966; Roelofs, 1983; Behnke, 1992).
        Previous ESA Status Review

        In 1996, NMFS conducted a comprehensive status review of coastal and inland steelhead stocks in California, Oregon, Washington, and Idaho (Busby et al., 1996). NMFS convened a Biological Review Team (BRT) of Federal scientists to: (1) identify ESUs of West Coast steelhead, each of which constitutes a “species” for consideration under the ESA; and (2) evaluate the risk of extinction for the identified ESUs. As part of this review, NMFS identified a Puget Sound ESU of coastal steelhead occupying river basins of the Strait of Juan de Fuca, Puget Sound, and Hood Canal (Washington), as far west as the Elwha River, and as far north as the Nooksack River and the United States/Canada border. The Puget Sound ESU is primarily composed of winter steelhead stocks, but also includes several small stocks of summer steelhead occupying limited habitat. The BRT also included the resident life-history form in the Puget Sound ESU. Genetic studies generally show that, in the same geographic area, the resident and anadromous life forms of O. mykiss are more similar to each other than either is to the same form from a different geographic area. In particular, the BRT cited a scientific study indicating that rainbow trout and steelhead are not reproductively isolated in two river basins within the Puget Sound ESU (Leider et al., 1995).
        The BRT concluded that the Puget Sound steelhead ESU was not in danger of extinction or likely to become endangered in the foreseeable future. However, the BRT was concerned that 17 of 21 stocks in the ESU for which there were adequate data exhibited overall declining trends. Positive trends in abundance for the two largest steelhead runs in the ESU (the Skagit and Snohomish Rivers) mitigated the immediacy of extinction risk, although there was significant concern regarding the sustainability of other steelhead runs in the ESU (most notably the Deer Creek summer and Lake Washington winter steelhead stocks, and stocks in the Hood Canal area). Given the lack of strong trends in abundance for the major stocks and the apparent limited contribution of hatchery fish to natural production, the BRT concluded that most winter steelhead stocks in the Puget Sound ESU appeared to be naturally self-sustaining.

        The BRT noted concern about the potential threat to the genetic integrity of Puget Sound steelhead posed by past and present hatchery practices in the Puget Sound area. Hatchery production in this ESU is widespread and managed to support harvest. Most of the hatchery fish propagated in the Puget Sound region are winter steelhead derived from a single stock (the Chambers Creek hatchery stock) that is indigenous to the ESU but generally is not native to the local river basins where it is propagated. The summer steelhead hatchery programs in the Puget Sound area are derived from an out-of-ESU stock (the Skamania summer steelhead stock from the Columbia River). The Skamania hatchery stock has generally been introduced in river systems where summer steelhead did not naturally exist, although it has been introduced in some Puget Sound river basins having native summer steelhead populations (e.g., the Skagit, Stillaguamish, and Snohomish Rivers). The Washington Department of Fish and Wildlife (WDFW) employs a hatchery management strategy of promoting isolation between hatchery and natural stocks by releasing smolts early and selecting for advanced spawn timing in winter steelhead hatchery programs. This separation in run timing is intended to allow for high rates of selective harvest on returning hatchery fish, while limiting harvest mortality on wild stocks; and to minimize competition (as smolts and adults) and opportunities for interbreeding between naturally spawning hatchery fish and wild fish. However, the BRT noted that separation of run timing is seldom complete. Naturally spawning hatchery fish comprise a substantial proportion of the spawning escapement in many of the rivers in the ESU, possibly competing with, and posing genetic risks to, the local steelhead populations. Additionally, the BRT discussed evidence for hatchery introgression in some natural Puget Sound winter steelhead populations (Phelps et al., 1994).
        Informed by the BRT's findings (Busby et al., 1996), NMFS concluded that the Puget Sound steelhead ESU did not warrant listing under the ESA (61 FR 41541; August 9, 1996), but expressed concern regarding the sustainability of summer steelhead populations and potentially adverse impacts from hatchery practices in Puget Sound.
        Analysis of Petition
        NMFS evaluated whether the information presented in the petition concerning Puget Sound steelhead met the ESA's standard for “substantial information” The agency also reviewed other information readily available to NMFS scientists (i.e., currently within agency files) to determine whether there is general agreement with the information presented in the petition.
        The petition restates several of the findings of the 1996 status review for the Puget Sound steelhead ESU, including the BRT's ESU delineation, evaluation of extinction risk, and consideration of artificial propagation. Most significantly, the petition provides 10 years of new harvest, spawning escapement, and total-run-size data for nine Puget Sound steelhead stocks (provided to the petitioner by WDFW). The petition concludes that new status information describes significant short- and long-term downward trends in nearly all river systems where the WDFW data are available, despite significant reductions in recreational and tribal harvest rates on wild steelhead. The petition asserts that there is only one river system, the Skagit River, with a steelhead population large enough to appear resilient to adverse environmental conditions and depensatory (small population size) risks. The petition argues that the spatial structure of the Puget Sound ESU has been severely degraded in the period since the 1996 status review, with four geographic regions at risk of extirpation: the Juan de Fuca Strait, Bellingham Bay, Hood Canal, and South Puget Sound. The petition argues that populations are at such low levels of abundance that catastrophic events, environmental variability, and depensation confer a high level of extinction risk into the foreseeable future.

        The petition also describes risks to the diversity of the Puget Sound steelhead ESU. Hybridization between O. mykiss and coastal cutthroat trout (O. clarki) is described as a threat to diversity, as well as potentially confounding factor in evaluating abundance information that may include visually indistinguishable O. mykiss, hybrids, and cutthroat trout. The petition underscores concerns described in the 1996 status review regarding adverse impacts from hatchery fish. Additionally, the petition describes new information suggesting that early winter-run hatchery steelhead males hold over in freshwater for an extended period of time and spawn with late winter-run wild steelhead females (McMillan, 2004), and hatchery juveniles residualizing and competing with native rainbow trout and steelhead (McMichael et al., 1997; Viola and Schuck, 1995). The petition notes that hatchery smolt production has increased since the 1996 status review, and that the proportion of hatchery-origin smolts and naturally spawning adults has increased. The petition asserts that the large-scale hatchery steelhead programs in the Puget Sound area provide no benefit to the viability of the Puget Sound ESU, but rather have negative impacts including: widespread genetic introgression compromising local adaptations; competition with wild fish as juveniles and adults; and predation on wild steelhead fry by residualized hatchery steelhead smolts.

        In addition to the petition narrative and the new harvest and run size data provided, the information presented in the petition includes: (1) a WDFW report on the genetic relationship among anadromous and resident O. mykiss in the Cedar River and Lake Washington in Puget Sound; (2) a paper by the petitioner (Sam Wright) advocating for the management of salmonid populations in terms of smolt production rather than traditional metrics of numbers of recruits or adult spawners; and (3) a copy of comments submitted by the petitioner (Wright, 2004) regarding NMFS' proposed policy for the consideration of hatchery-origin fish in ESA listing determinations for Pacific salmon and steelhead (69 FR 31354; June 3, 2004). The petition concludes, based on the information presented in the petition, that the Puget Sound steelhead ESU is in danger of extinction throughout all or a significant portion of its range or is likely to become so in the foreseeable future.
        Petition Finding

        After reviewing the information contained in the petition and reviewing information readily available to NMFS scientists (i.e., currently within agency files), NMFS determines that the petition to list the Puget Sound steelhead presents substantial scientific and commercial information indicating that the petitioned action may be warranted. In accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), NMFS will commence a review of the status of the Puget Sound O. mykiss ESU and make a determination of whether the petitioned action is warranted.
        Listing Factors and Basis for Determination
        Under section 4(a)(1) of the ESA, NMFS is to determine whether a species is a threatened or endangered species because of any of the following factors: (1) the present or threatened destruction, modification, or curtailment of a species' habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting the species' continued existence. Under section 4(b)(1)(A) of the ESA, listing determinations are to be made based solely on the best available scientific and commercial data after conducting a review of the status of the species and after taking into account any efforts being made by any state or foreign nation to protect the species.
        Information Solicited

        To ensure that the updated status review is complete and based on the best available and most recent scientific and commercial data, NMFS is soliciting information and comments (see DATES and ADDRESSES) concerning the Puget Sound ESU of O. mykiss, inclusive of the anadromous and resident life history forms. NMFS is particularly interested in information that has become available since, or was otherwise not considered in, the 1996 steelhead status review.
        Biological Information

        NMFS is soliciting pertinent information on the viability of naturally spawned and hatchery populations within these ESUs such as: data on population abundance, recruitment, productivity, escapement, and reproductive success (e.g., spawner-recruit or spawner-spawner survivorship, fecundity, smolt production estimates, and smolt-to-adult ocean survival rates); historical and present data on hatchery fish releases, outmigration, survivorship, returns, straying rates, replacement rates, and reproductive success in the wild; data on age structure and migration patterns of juveniles and adults; meristic, morphometric, and genetic studies; information on harvest rates on hatchery and wild fish; and spatial or temporal trends in the accessibility, quality and quantity of freshwater, estuarine, and marine habitats.

        NMFS also requests information regarding the ecological and genetic relationship of hatchery and natural populations in the Puget Sound area, including: the stock origin and broodstock practices of individual hatchery programs; the degree of known or inferred genetic divergence between hatchery and natural stocks; behavioral, morphological, and life-history traits of hatchery stocks, and the degree of ecological divergence between hatchery and natural stocks; the potential risks and benefits posed by specific artificial propagation programs to naturally spawned populations; and planned changes in hatchery management that may contribute to, or hinder, the viability of the Puget Sound O. mykiss ESU.
        NMFS is also soliciting pertinent information about resident rainbow trout populations (above and below natural and man-made barriers to fish passage) and their relationship with the anadromous life-history form within the geographic range occupied by the ESU. Specifically, NMFS is seeking information regarding: the range, distribution, and habitat-use patterns of resident rainbow trout populations; the abundance, density, and presence/absence of resident rainbow trout; genetic or other relevant data indicating the amount of reproductive exchange between the two life-history forms; the frequency with which a given life-history produces offspring of the opposite life-history form; the historic and current degree of relatedness between steelhead and resident rainbow trout life history forms; the existence of natural and man-made barriers to passage for anadromous and resident populations; the relationship of resident fish located above impassible natural and man-made barriers to anadromous and resident populations below such barriers to fish passage; and the spatial and temporal trends in the quality and quantity of freshwater habitat.
        Information Regarding Protective Efforts
        Section 4(b)(1)(A) of the ESA requires the Secretary to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of a species and after taking into account efforts being made to protect the species. Therefore, in making its listing determinations, NMFS first assesses the status of the species and identifies factors that have led to its current status. NMFS then assesses conservation measures to determine whether they ameliorate a species' extinction risk (50 CFR 424.11(f)). In judging the efficacy of conservation efforts, NMFS considers the following: the substantive, protective, and conservation elements of such efforts; the degree of certainty that such efforts will reliably be implemented; the degree of certainty that such efforts will be effective in furthering the conservation of the species; and the presence of monitoring provisions to determine effectiveness of recovery efforts and that permit adaptive management (68 FR 15100; March 28, 2003). In some cases, conservation efforts may be relatively new or may not have had sufficient time to demonstrate their biological benefit. In such cases, provisions of adequate monitoring and funding for conservation efforts are essential to ensure that the intended conservation benefits will be realized. NMFS encourages all parties to submit information on ongoing efforts to protect and conserve steelhead and rainbow trout populations in Puget Sound, as well as information on recently implemented or planned activities (i.e., since the 1996 status review) and their likely impact(s).
        Information Regarding Potential Critical Habitat
        Critical habitat is defined in section 3 of the ESA as: (1) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species.
        Section 4(a)(3)(a) of the ESA requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. In advance of any determination to propose listing the Puget Sound O. mykiss ESU under the ESA, NMFS is soliciting information that would assist the agency in developing a critical habitat proposal.

        Joint NMFS U.S. Fish and Wildlife Service regulations for listing endangered and threatened species and designating critical habitat (50 CFR 424.12(b)) state that the agency “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection (referred to above as “essential physical and biological features”). Pursuant to the regulations, such requirements include, but are not limited to the following: (1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally, (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations emphasize that the agency shall focus on essential features within the specific areas considered for designation. These features “may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.” For other ESUs of West Coast O. mykiss, NMFS has identified the following physical or biological features as essential to their conservation: (1) Freshwater spawning sites with water quantity and quality conditions and substrate supporting spawning, incubation and larval development. (2) Freshwater rearing sites with water quantity and floodplain connectivity to form and maintain physical habitat conditions and support juvenile growth and mobility; water quality and forage supporting juvenile development; and natural cover such as shade, submerged and overhanging large wood, log jams and beaver dams, aquatic vegetation, large rocks and boulders, side channels, and undercut banks. (3) Freshwater migration corridors free of obstruction with water quantity and quality conditions and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels, and undercut banks supporting juvenile and adult mobility and survival. (4) Estuarine areas free of obstruction with water quality, water quantity, and salinity conditions supporting juvenile and adult physiological transitions between fresh- and saltwater; natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels; and juvenile and adult forage, including aquatic invertebrates and fishes, supporting growth and maturation. (5) Nearshore marine areas free of obstruction with water quality and quantity conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation; and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels. (6) Offshore marine areas with water quality conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation. NMFS is soliciting comment on the applicability of these features to Puget Sound O. mykiss and is also soliciting information regarding the specific areas within the geographical area occupied by Puget Sound O. mykiss where such essential physical and biological features may be found.

        Section 4(b)(2) of the ESA requires the Secretary to consider the “economic impact, impact on national security, and any other relevant impact,” of designating a particular area as critical habitat. Section 4(b)(2) further authorizes the Secretary to exclude any area from a critical habitat designation if the Secretary finds that the benefits of exclusion outweigh the benefits of designation, unless excluding that area will result in extinction of the species. We seek information regarding the benefits of designating specific areas geographically within the Puget Sound O. mykiss ESU as critical habitat (i.e., specific areas within the river basins of the Strait of Juan de Fuca, Puget Sound, and Hood Canal, Washington, as far west as the Elwha River, and as far north as the Nooksack River and the United States/Canada border). We also seek information on the economic impact of designating particular areas as part of the critical habitat designation. In keeping with the guidance provided by the Office of Management and Budget (2000, 2003), we seek information that would allow the monetization of these effects to the extent possible, as well as information on qualitative impacts to economic values. We are also seeking information on impacts to national security and any other relevant impacts of designating critical habitat in these areas.

        In accordance with the Secretarial Order on American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997), if it is determined that the Puget Sound O. mykiss ESU warrants listing we will coordinate with Federally recognized American Indian Tribes on a government-to-government basis to determine how to make critical habitat assessments in areas that may impact tribal trust resources. In accordance with our regulations (50 CFR 424.13) we will consult as appropriate with affected states, interested persons and organizations, other affected Federal agencies, and, in cooperation with the Secretary of State, with the country or countries in which the species concerned are normally found or whose citizens harvest such species from the high seas. Data reviewed may include, but are not limited to, scientific or commercial publications, administrative reports, maps or other graphic materials, information received from experts, and comments from interested parties.
        Identification of Peer Reviewers
        On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. On December 15, 2004, the Office of Management and Budget issued a “Final Information Quality Act Bulletin for Peer Review,” which establishes peer review requirements for Federal agencies before disseminating important scientific information. If NMFS determines that listing is warranted, the agency will solicit the expert opinions of qualified specialists, concurrent with the public comment period following the publication of a proposed rule. In advance of any such determination, NMFS is soliciting the names and affiliations of experts from the academic and scientific community, Native American tribal groups, federal and state agencies, and the private sector, as potential reviewers.
        References

        Copies of the petition and related materials are available on the Internet at http://www.nwr.noaa.gov, or upon request (see ADDRESSES section above).

          Authority:
          16 U.S.C. 1531 et seq.

          Dated: March 30, 2005.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 05-6714 Filed 4-4-05; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 040507144-4144-01; I.D. 043004A]
        RIN 0648-AQ85
        Fisheries of the Northeastern United States; Atlantic Bluefish Fishery

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

          ACTION:
          Proposed 2004 specifications for the Atlantic bluefish fishery; request for comments.

          SUMMARY:
          NMFS proposes 2004 specifications for the Atlantic bluefish fishery, including total allowable landings (TAL), state-by-state commercial quotas, recreational harvest limits, and recreational possession limits.  The intent of the specifications is to conserve and manage the bluefish resource.

          DATES:
          Public comments must be received no later than 5 p.m., Eastern Standard Time, on June 3, 2004.

          ADDRESSES:
          You may submit comments, identified by  Docket Number 040507144-4144-01 or RIN Number 0648-AQ85, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • E-mail: 2004bluefishspecs@noaa.gov. Include the following document identifier: “Comments-2004 Bluefish Specifications.” in the subject line of the message.
          • Fax: 978-281-9135.
          • Mail: Patricia A. Kurkul, Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA  01930-2298. Please mark the outside of the envelope, “Comments--2004 Bluefish Specifications.”

          Copies of supporting documents, including the Environmental Assessment (EA), Initial Regulatory Flexibility Analysis (IRFA), and the Essential Fish Habitat Assessment (EFHA) are available from:  Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE  19904-6790.  The EA, IRFA, and EFHA are accessible via the Internet at http:/www.nero.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Myles Raizin, Fishery Policy Analyst, (978) 281-9104.

        SUPPLEMENTARY INFORMATION:
        Regulations implementing the Atlantic Bluefish Fishery Management Plan (FMP) prepared by the Mid-Atlantic Fishery Management Council (Council) appear at 50 CFR part 648, subparts A and J.  Regulations requiring annual specifications are found at § 648.160.  The FMP requires that the Council recommend, on an annual basis, a TAL, which is comprised of a commercial quota and a recreational harvest limit.
        The FMP also requires that:  (1) The TAL for any given year be set based on the fishing mortality rate (F) resulting from the stock rebuilding schedule contained in the FMP, or the estimated F in the most recent fishing year, whichever is lower; and (2) a total of 17 percent of the TAL be allocated to the commercial fishery, as a quota, with the remaining 83 percent allocated as a recreational harvest limit, with the stipulation that, if 17 percent of the TAL is less than 10.50 million lb (4.762 million kg) and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.50 million lb (4.762 million kg) as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed TAL.

        The Council's recommendations must include supporting documentation, as appropriate, concerning the environmental, economic, and social impacts of the recommendations.  NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives.  NMFS then publishes proposed specifications in the Federal Register.  After considering public comment, NMFS will publish final specifications in the Federal Register.
        Proposed 2004 Specifications
        Proposed TAL
        On August 5, 2003, the Council adopted specifications for the 2004 Atlantic bluefish fishery.  The Council submitted its recommendations and analysis November 24, 2003, and submitted a supplement to clarify and correct the document on January 20, 2004.  NMFS has reviewed the Council's recommendation and has found it complies with the FMP objectives.  Although these proposed specifications are intended to be in place at the beginning of the fishing year, the delay in implementing the proposed specifications for 2004 should not compromise this fishery because the Atlantic States Marine Fisheries Commission (ASMFC) measures, which are already in place in applicable states, provide equivalent conservation for bluefish.  NMFS is proposing to implement the Council's recommended specifications.
        For the 2004 fishery, the stock rebuilding program in the FMP restricts F to 0.31.  However, the 2002 fishery (the most recent fishing year for which F can be calculated) produced an F of only 0.184.  So, in accordance with the FMP, the measures proposed for 2004 were developed to achieve F=0.184.  Projection results indicate that the bluefish stock will increase to an estimated biomass of 165.853 million lb (365.504 million kg) in 2004.  This biomass can produce a Total Allowable Catch (TAC) of 34.215 million lb (15.5 million kg) in 2004 at F=0.184.  The proposed TAL for 2004 is derived from this value by subtracting estimated discards of 2.365 million lb (1.06 million kg) from the TAC.  This results in a proposed TAL for 2004 of 31.85 million lb (14.45 million kg).
        Proposed Commercial Quota and Recreational Harvest Limit

        If the TAL for the 2004 fishery were allocated based on the percentages specified in the FMP, the commercial quota would be 5.414 million lb (2.456 million kg), with a recreational harvest limit of 26.435 million lb (11.990 million kg).  However, recreational landings from the last several years were much lower than the recreational allocation for 2004, ranging between 8.30 and 15.5 million lb (3.74 and 7.05 million kg, respectively).  Since the recreational fishery is not projected to land its 26.435 million-lb (11.990 million-kg) harvest limit in 2004, the FMP allows the specification of a commercial quota of up to 10.5 million lb (4.76 million kg).  Therefore, consistent with the FMP and regulations governing the bluefish fishery, the Council recommended, and NMFS proposes, to transfer 5.085 million lb (2.036 million kg) from the initial 2004 recreational allocation of 26.435 million lb (11.990 million kg), resulting in 21.350 million lb (9.684 million kg) for a 2004 proposed recreational harvest limit and a proposed quota of 10.5 million lb (4.76 million kg). The proposed 2004 commercial quota would be the same as was allocated in 2003 and also as implemented by the states for 2004 under the ASMFC's Interstate Fishery Management Plan for Atlantic Bluefish.  A Notice of Request for Proposals was published in the Federal Register to solicit research proposals for 2004 that could utilize research set-aside (RSA) TAC authorized by the FMP, based on research priorities identified by the Council (January 27, 2003; 68 FR 3864).  One research project that would utilize bluefish RSA has been approved by the NOAA Grants Office.  Therefore, a 297,750-lb (135,057-kg) RSA is also proposed.  Due to the allocation of the bluefish RSA, the proposed commercial quota for 2004 is 10.401 million lb (4.718 million kg) and the proposed recreational harvest limit is 21.150 million lb (9.59 million kg).
        Proposed Recreational Possession Limit
        The Council also recommends maintaining the current recreational possession limit of 15 fish to meet the recreational harvest limit.
        Proposed State Commercial Allocations
        The annual commercial quota for bluefish will be distributed to the states (see Table 1.).  Proposed state commercial allocations for the 2004 commercial quotas are shown in the table below, based on the  percentages specified in the FMP, less the proposed RSA allocation.

          Table 1—Annual Bluefish State Commercial Quotas

            State
            %% of quota
            2004 Commercial Quota (lb)
            2004 Commercial Quota (kg)
            2004 Commercial Quota (lb) With  Research
              Set-Aside

            2004 Commercial Quota (kg) With  Research
              Set-Aside

            ME
            0.6685
            70,193
            31,839
            69,536
            31,541

            NH
            0.4145
            43,523
            19,742
            43,116
            19,557

            MA
            6.7167
            705,254
            319,901
            698,660
            316,907

            RI
            6.8081
            714,851
            324,254
            708,168
            321,220

            CT
            1.2663
            132,962
            60,311
            131,719
            59,747

            NY
            10.3851
            1,090,436
            494,619
            1,080,242
            489,990

            NJ
            14.8162
            1,555,701
            705,661
            1,541,158
            699,058

            DE
            1.8782
            197,211
            89,454
            195,367
            88,617

            MD
            3.0018
            315,189
            142,969
            312,242
            141,631

            VA
            11.8795
            1,247,348
            565,793
            1,235,687
            560,498

            NC
            32.0608
            3,366,384
            1,526,982
            3,334,913
            1,512,691

            SC
            0.0352
            3,696
            1,676
            3,661
            1,661

            GA
            0.0095
            998
            453
            988
            448

            FL
            10.0597
            1,056,269
            479,121
            1,046,394
            474,636

            Total
            100.0000
            10,500,015
            4,762,727
            10,401,851
            4,744,652

        Classification
        This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.
        The Council prepared an IRFA that describes the 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 the action are provided in the preamble of this proposed rule.  A summary of the IRFA follows:
        An active participant in the commercial bluefish fishery sector is defined as being any vessel that reported having landed one or more pounds of bluefish to NMFS-permitted dealers during calendar year 2002.  Vessels fishing for bluefish with a Federal permit intending to sell their catch must do so to NMFS-permitted dealers.  All vessels affected by this rulemaking have gross receipts less than $3.5 million and are considered to be small entities under the Regulatory Flexibility Act (RFA).  Since there are no large entities participating in this fishery, there are no disproportionate effects resulting from small versus large entities.  Since costs are not readily available, vessel profitability cannot be determined directly.  Therefore, changes in gross revenue were used as a proxy for profitability.  Of the active, Federally-permitted vessels in 2002, 928 landed bluefish from Maine to North Carolina.  Dealer data do not cover vessel activity from South Carolina to Florida.  South Atlantic Trip Ticket Report data indicate that 1,004 vessels landed bluefish in North Carolina, including those with Federal permits and those fishing only in state waters.  These data also indicate that bluefish landings in South Carolina and Georgia represented less than 1/10 of 1 percent of total landings.  Therefore, it was assumed that no vessels landed bluefish from those states.  According to South Atlantic Trip Ticket Report data, 101 commercial vessels landed bluefish to dealers on Florida's east coast in 2002.
        In addition, in 2002, approximately 2,063 party/charter vessels caught bluefish in either state or Federal waters. All of these vessels are considered small entities under the RFA having gross receipts of less than $5 million annually. Since the possession limits would remain at 15 fish per person, there should be no impact on demand for party/charter vessel fishing, and therefore, no impact on revenues earned by party/charter vessels.
        The Council analyzed three alternatives.  The TAL recommendation and RSA are unchanged in the alternatives, as the TAL is the level that would achieve the target F in 2004, and the RSA is the amount allocated through the grants process.  The difference between the preferred alternative (Alternative 1) and Alternatives 2 and 3, therefore, relates only to the manner in which the overall TAL is allocated between the commercial and recreational components of the bluefish fishery.  Under Alternative 1, the commercial quota allocation is 10.401 million lb (4.718 million kg), with a recreational harvest limit of 21.150 million lb (9.68 million kg).  Under Alternative 2, the commercial quota allocation is 5.363 million lb (2.433 million kg) with a recreational harvest limit of 26.188 million lb (11.878 million kg).  Under Alternative 3, the commercial quota allocation is 9.493 million lb (4.346 million kg) with a recreational harvest limit of 22.058 million lb (10.100 million kg).

        The preferred commercial quota represents a less than 1-percent decrease from the 2003 commercial quota, with the decrease due to the amount specified for the RSA.  The 2004 recreational harvest limit would be 21 percent lower than the recreational harvest limit specified for 2003.  However, the recreational harvest limit would still be about twice the recreational landings for 2002.  Bluefish landings for the 2000-2002 period ranged from 29 to 59 percent lower than the recreational harvest limits specified in those years, and a projection based on preliminary recreational data for 2003 indicates that landings will be 46 percent lower than the recreational harvest limit specified for 2003.  Therefore, under this alternative, no vessels would realize significant revenue reductions.  A total of 928 vessels were projected to incur revenue losses as a result of the proposed commercial quota allocation, with 95 percent of those estimated to incur losses of less than 1 percent, and none to incur losses greater than 5 percent.  The affected entities would be mostly smaller vessels that land bluefish in Massachusetts, New Jersey, New York and North Carolina.  In addition, economic analysis of South Atlantic Trip Ticket Report data indicated that, on average, the slight reduction in the commercial quota from 2003 to 2004 would be expected to result in small reductions in revenue for fishermen that land bluefish in North Carolina (0.05 percent) and Florida (0.03 percent).
        The allocations specified in Alternative 2 represent a 49-percent decrease in the commercial quota from the 2003 commercial quota, and a 2-percent decrease in the recreational harvest limit from the 2003 recreational harvest limit.  The 2004 recreational harvest limit would be more than twice the 2003 projected recreational landings.  The reduction in the commercial quota would cause 15 vessels to have revenue losses of 50 percent or more, while 123 would have revenue losses from 5 to 49 percent. An additional 790 vessels would incur revenue losses of less than 5 percent of their total ex-vessel revenue.  Also, evaluation of South Atlantic Trip Ticket Reports indicates an average of 4.43 and 0.03-percent reductions in revenue for fishermen that land bluefish in North Carolina and Florida, respectively.
        Alternative 3 represents a 9-percent decrease in the total allowable commercial landings for bluefish in 2003 versus 2004.  The 2004 recreational harvest limit would be 17 percent lower than the estimated recreational landings in 2003.  Under this scenario, a total of 53 vessels would incur revenue losses from 5 to 19 percent due to the reduction in the commercial quota.  An additional 875 commercial vessels would incur revenue losses of less than 5 percent of their total ex-vessel revenue.  Also, evaluation of South Atlantic Trip Ticket Reports indicate reduction in revenues of 0.82 and 0.05-percent for fishermen that land bluefish in North Carolina and Florida, respectively.

        The Council further analyzed the impacts on revenues of the proposed RSA specified in all three alternatives.  The social and economic impacts of this proposed RSA are expected to be minimal.  Assuming the full RSA is allocated for bluefish, the set-aside amount could be worth as much as $101,235 dockside, based on a 2002 price of $0.34 per pound for bluefish.  Assuming an equal reduction among all 928 active dealer reported vessels, this could mean a reduction of about $109 per individual vessel.  Changes in the recreational harvest limit would be insignificant (less than 1 percent decrease), if 2 percent of the TAL is used for research.  It is unlikely that there would be negative impacts.  A copy of this analysis is available from the Council (see ADDRESSES).

          Dated: May 14, 2004.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 04-11350 Filed 5-18-04; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Part 260
        [Docket No. FRA-2008-0061, Notice No. 2]
        RIN 2130-AB91
        Railroad Rehabilitation and Improvement Financing Program

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking (NPRM); withdrawal.

          SUMMARY:
          On June 9, 2008, FRA published an NPRM in the Federal Register proposing to amend the eligibility and application form and content criteria of the Railroad Rehabilitation and Improvement Finance (RRIF) Program. For the reasons stated below, FRA has decided to withdraw the NPRM.

          DATES:
          The NPRM published on June 9, 2008 at 73 FR 32515 is withdrawn as of March 30, 2009.

          FOR FURTHER INFORMATION CONTACT:
          Casey Symington, Attorney Advisor, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-20, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6349).

        SUPPLEMENTARY INFORMATION:
        I. Background
        The NPRM was developed in order to ensure the long-term sustainability of the Railroad Rehabilitation and Improvement Financing (RRIF) Program, promote the competitiveness of the railroad industry, and reduce the risk of default for applicants and the Federal government (government). The NPRM proposed to accomplish these goals by adding additional eligibility and application content requirements to the existing RRIF regulations. However, during and after the formal comment period on the NPRM, FRA received adverse comments on its provisions. After reviewing these comments, FRA has determined that it has insufficient information to ensure that the proposed provisions would achieve the stated goals of the NPRM or to ensure that the proposed provisions would not cause unintended consequences on the utilization of the RRIF program. Accordingly, FRA is withdrawing the NPRM.
        FRA received 21 written comments in response to the NPRM. All commenters opposed the NPRM. Nine commenters requested that it be withdrawn and three commenters requested that the NPRM be suspended or not implemented. The majority of comments raised concerns about the need and purpose of the rulemaking, the inability of the proposed rule to address the stated goals, the negative effect of the proposed rule on small entities and non-railroad entities, the increased costs and expense of complying with the proposed rule, the NPRM's effect of limiting the availability of the RRIF program and the possible resulting reduction in rail infrastructure investment, possible contradictions of legislative intent, and potentially unclear language in several of the NPRM provisions.
        The comments thoughtfully addressed a number of issues raised through the NPRM, and FRA appreciates the time and effort put forth by those who commented.
        II. Reason for Withdrawal
        FRA has carefully reviewed the comments submitted pursuant to the NPRM. Based on our review of the comments, there is insufficient information at this time to assure a final rule with the proposed provisions would not have the unintended negative consequences anticipated by the commenters.
        FRA remains dedicated to ensuring responsible lending through the RRIF program. As such, this withdrawal does not preclude the agency from issuing a separate rulemaking concerning the program. Should FRA decide to undertake such a rulemaking in the future, FRA will re-propose actions and provide new opportunities for comment.
        III. The Withdrawal

        In consideration of the foregoing, the NPRM for FRA Docket No. FRA-2008-0061, as published in the Federal Register on June 9, 2008 (73 FR 32515) is hereby withdrawn.

          Issued in Washington, DC, on March 24, 2009.
          Jo Strang,
          Acting Deputy Administrator.

       [FR Doc. E9-6940 Filed 3-27-09; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 050216041-5041-01;  I.D. 020705C]
        RIN 0648-AS87
        Fisheries of the Northeastern United States; Recordkeeping and Reporting Requirements; Regulatory Amendment to Modify Seafood Dealer Reporting Requirements

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes measures to modify the existing reporting and record keeping regulations for federally permitted seafood dealers participating in the summer flounder, scup, black sea bass, Atlantic sea scallop, Northeast (NE) multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog,  Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and/or spiny dogfish fisheries in the NE Region.  The purpose of this action is to reduce the reporting burden on seafood dealers, improve data quality, simplify compliance, enhance enforceability, and clarify existing requirements.

          DATES:
          Comments on this proposed rule must be received on or before March 21, 2005.

          ADDRESSES:

          Copies of the regulatory amendment, its Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and other supporting materials are available from Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, Gloucester MA  01930.  The regulatory amendment/RIR/IRFA is also accessible via the Internet at http://www.nero.nmfs.gov.  Comments on the rule or related analysis should be submitted as follows:
          • E-mail comments to DealerER@noaa.gov.  Mark the subject line “Comments on Dealer Reporting.”
          • Send or deliver written comments (paper, CD Rom, or disk) to Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, Gloucester MA  01930.   Mark the outside of the envelope, “Comments on Proposed Rule to Modify Dealer Reporting.”

          • Send comments through the Federal e-Rulemaking Portal at www.Regulations.gov

          • Fax comments via facsimile to (978) 281-9161

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Patricia A. Kurkul, Regional Administrator,  and by e-mail to David_Rostker@omb.eop.gov, or by fax to (202) 395-7285.

          FOR FURTHER INFORMATION CONTACT:
          Kelley McGrath, Fishery Information Specialist,  (978) 281-9307, fax (978) 281-9161, or Erik Braun, Fishery Reporting Specialist, (631)-324-3569, fax (631)324-3314.

        SUPPLEMENTARY INFORMATION:
        Background
        Regulations implementing the fishery management plans (FMPs) for the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog, Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and spiny dogfish fisheries are found at 50 CFR part 648.  These FMPs were prepared under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  All dealers and vessels issued a Federal permit in one or more of the aforementioned fisheries must comply with the reporting requirements outlined at § 648.7.  Lobster dealers issued a Federal lobster permit, but not issued any of the permits with mandatory reporting requirements under this part, are not required to comply with these reporting regulations, although other reporting requirements may apply.
        Prior to March 1994, nearly all fisheries landing information was collected from seafood dealers and vessel owners on a voluntary basis.  Vessel owners/operators were asked by NMFS Field Staff to respond voluntarily to interview questions regarding effort and location information for their fishing trip, which were used to augment the detailed purchase reports submitted by dealers.  In 1994, mandatory reporting by seafood dealers and vessel owners/operators permitted in the summer flounder, Atlantic sea scallop and NE multispecies fisheries was implemented.  As subsequent FMPs for additional fisheries were developed, including several managed, in part, by harvest limits, mandatory reporting by dealers and vessels became an integral part of those FMPs.  Any dealer issued a permit for a species with mandatory reporting requirements was required to submit trip-level purchase reports on a weekly basis, either on paper or in an approved electronic format.  If no purchases were made during a calendar month, a negative report so stating was required.  Dealers were also required to submit weekly summary reports of certain quota-managed species through the telephone-based Interactive Voice Response (IVR) system.  If no purchases of any quota-managed species were made during the reporting week, a negative report was required.
        NMFS published a final rule (69 FR 13482, March  23, 2004) that was effective May 1, 2004.  It implemented new reporting regulations requiring seafood dealers permitted in the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, Atlantic surfclam, ocean quahog, Atlantic herring, Atlantic deep-sea red crab, tilefish, Atlantic bluefish, skate, and/or spiny dogfish fisheries to submit electronically trip-level reports, of all fish purchased or received, regardless of species, area harvested, point of purchase, or point of landing.  Electronic reports must be submitted to NMFS using one of four acceptable methods:   data entry via a web-based form; file upload via a web site; file upload using an approved state management agency program; or file transfer protocol (FTP) via the phone line.

        Reports are required to be submitted either on a weekly or a daily basis, depending on the dealer category.  Each dealer is currently assigned to either the Small Dealer or Large Dealer category, based on past ex-vessel purchase value.  Any dealer with less than $300,000 in total ex-vessel purchases in each year from 2000 through 2002 is considered a Small Dealer and must report trip-level purchase reports each week.  Reports are due within 3 days of the end of the reporting week, by midnight Tuesday.  Any dealer with at least $300,000 in ex-vessel purchases in 2000, 2001, or 2002 is considered a Large Dealer and must submit trip-level purchase reports by midnight of the following business day.  Any dealer issued a new permit in 2003 or after is considered a Large Dealer and subject to the reporting requirements for large dealers.  Effective May 1, 2005, all dealers are required to submit reports by midnight of the following business day, regardless of their category.  If no fish are purchased or received during a day, no report is required to be submitted.  If no fish are purchased or received during an entire reporting week, a report so stating must be submitted.
        All dealers issued a dealer permit under 50 CFR part 648 must provide the following information on each report:   Dealer name; dealer permit number; name and permit number or name and hull number (United States Coast Guard documentation number or state registration number, whichever is applicable) of vessel(s) from which fish are purchased or received; trip identifier for each trip from which fish are purchased or received from a commercial fishing vessel permitted under this part; date(s) of purchases and receipts; pounds by species (by market category, if applicable, or, if a surfclam or ocean quahog processor or dealer, the number of bushels by species); price per pound by species (by market category, if applicable, or, if a surfclam or ocean quahog processor or dealer, the price per bushel by species) or total value by species (by market category, if applicable); port landed; cage tag numbers (if a surfclam or ocean quahog processor or dealer); disposition of the seafood product; and any other information deemed necessary by the Regional Administrator.  Certain information, such as price, disposition, and trip identifier may be submitted up to 16 days after the end of the reporting week, or by the end of the calendar month, whichever is later.  Effective May 1, 2005, trip identifier will be due within the same time frame as the original report, i.e., by midnight of the following business day.
        The implementation of mandatory electronic reporting for federally permitted dealers represented a marked change in the methods used by both industry and NMFS to conduct business and data management.  Since the implementation of electronic reporting, NMFS has reviewed and evaluated the new reporting requirements, data quality, dealer compliance, and submission methods, seeking ways to minimize the reporting burden for dealers while maintaining effective fisheries management.  NMFS staff continues to work with industry to identify and to resolve technical issues and get feedback on electronic reporting.  As a result of its findings, NMFS proposes modifying several components of dealer reporting to reduce the burden on seafood dealers, improve data quality, simplify compliance, enhance enforceability, and clarify existing requirements.  The three major areas of proposed changes are related to reporting frequency, out-of-region purchases, and inshore species reporting.  In addition to dealer reporting changes, NMFS proposes to modify the requirements for operator permits required under this part, in order to accept operator permits issued by the Southeast (SE) Region under 50 CFR part 622 as compliant with the operator permit requirements in 50 CFR part 648.
        Frequency of Reporting
        The current regulations require dealers in the Large Dealer category, and all dealers as of May 1, 2005, to report daily, regardless of the landing levels for a given species.  Throughout most of the year, NMFS monitors landings of species managed by quota or other harvest limit on a weekly basis.  While weekly monitoring is sufficient for most species, most of the year, more frequent reporting is beneficial as landings of a species reach levels that would cause the applicable quota or other target exploitation rate specified in the FMP for that species to be achieved.  However, NMFS acknowledges that at the present time, compliance with daily reporting requirements can be difficult for dealers to achieve, primarily due to the limited window of time in which reports may be submitted.  It is also more cumbersome for NMFS to manage the data and monitor compliance when data are received, or supposed to be received, from all dealers on a year-round, daily basis.  Therefore, to alleviate the burden on both the industry and the Government, NMFS proposes to require weekly reporting by all dealers.
        Under the proposed regulations, dealers would be required to submit electronic trip level reports of all fish purchases and receipts to NMFS on a weekly basis.  Consistent with the current regulations, weekly reports would be due within 3 days of the end of the reporting week, by midnight Tuesday.  If no purchases or receipts are made during the entire reporting week, an electronic report so stating would be required.
        Out-of-Region Dealers
        The current reporting requirements are very inclusive, in that any dealer issued a permit under this part must report all fish purchases, regardless of dealer location, point of landing, or point of purchase, to NMFS NE Region.  This means that dealers conducting business outside of the NE Region (Maine to North Carolina), must still report all fish purchases and receipts, including species not managed by the NE Region, or even by NMFS.  Many of these dealers are required to report their purchases of certain species to another NMFS Region or state agency as well, resulting in duplicate reporting of some purchases.  Reporting the same information twice is burdensome to dealers and more difficult for NMFS to manage.  It may also lower the overall quality of fisheries landings data if not all of the duplicate reports can be identified and removed from the database.  Therefore, NMFS proposes to require dealers making purchases from a vessel that landed fish outside of the NE Region to report only the species.  Limiting the species that must be reported by dealers making out-of-region purchases would reduce the burden on those dealers and lessen duplicate reporting to Federal and state agencies. Requiring only those species managed by the NE Region to be reported for out-of-region trips still allows for effective monitoring of species for which the NE Region is responsible, while minimizing the reporting burden on dealers.
        Inshore Species Reporting
        Similar to the out-of-region purchases situation, under the current regulations dealers must report all purchases to NMFS, including shellfish and other invertebrate species caught in waters under the states' jurisdiction (inshore) that are not currently managed by NMFS and are not anticipated to be managed by NMFS in the future.  In many cases these purchases are being reported to a state management agency as well, resulting in duplicate data and unnecessary burden on seafood dealers.  Therefore, NMFS proposes to exclude several inshore species from dealer reporting requirements under this part.  The exclusion would be accomplished by adding a definition for Inshore Exempted Species to the Definitions section of this part.  Excluded species include bay scallops; blood arc, razor and soft clams; blood and sand worms; blue, green, hermit, Japanese shore, and spider crabs; blue mussels; and quahogs.
        Atlantic Bluefin Tuna

        To purchase Atlantic bluefin tuna, dealers must comply with Highly Migratory Species (HMS) requirements under 50 CFR part 635, including the requirement to submit purchase reports to the HMS division of NMFS.  If a dealer is also issued a permit under 50 CFR part 648, that dealer is required to report Atlantic bluefin tuna purchases to NMFS twice.  This results in an increased burden for dealers as they are reporting the same purchase under two different agency requirements.  Therefore, NMFS proposes eliminating the requirement for dealers to report purchases or Atlantic bluefin tuna under 50 CFR part 648.  Other HMS reporting requirements would still apply.
        File Transfer Protocol (FTP) Option
        One of the four acceptable options for submitting electronic reports is via a phone-line FTP.  The intent of providing this option was to allow dealers without Internet access to submit files using a phone line rather than via a web site.  According to current NOAA policy outlined in the DOC's “Unclassified System Remote Access Security Policy and Minimum Implementation Standards” document, FTP sites are no longer an acceptable system of file transfer due to security concerns.  Therefore to comply with NOAA policy, NMFS proposes removing the option to submit data via FTP.
        Units of Measure
        The current regulations provide that dealers must report purchases in  pounds, except for surfclam and ocean quahog processors and dealers, who must provide the bushels purchased.  This phrasing implies that surfclam and ocean quahog dealers must report all purchases in bushels, however the intention was for surfclams and ocean quahogs to be reported in bushels and other species to be reported in pounds.  Further, certain species may be landed in units of measure other than pounds or bushels.  For instance, scallops may be reported in gallons and ocean quahogs may be reported in bags.  The online data entry system that many dealers use to submit data to NMFS contains additional units of measure as well.  However, the current wording in the regulations restricts the types of  units that may be reported to pounds and bushels.  NMFS proposes modifying the current language to allow other units of measure to be reported by seafood dealers.
        Cage Tag Numbers
        The current regulations require that cage tag numbers must be reported for all purchases made by surfclam or ocean quahog dealers.  However, only surfclam and ocean quahog trips harvested under an Individual Transferrable Quota (ITQ) actually require cage tags to be used.  Purchases of surfclams and ocean quahogs from non-ITQ trips do not require tags, nor do other species purchased by surfclam and ocean quahog dealers.  NMFS proposes modifying the current regulations to clarify that cage tags must be reported only for purchases from certain trips.
        Price, Disposition and Trip Identifier
        Under the current regulations, dealers may submit price, disposition, and trip identifier information up to 16 days after the end of the reporting week, or by the end of the calendar month, whichever is later.  The purpose of the extended time frame is to allow for the lag between the time the fish was purchased and the time that information becomes available to the dealer.  However, NMFS has determined that 16 days is a sufficient amount of time for dealers to compile and submit price and disposition information.  Prior to the implementation of electronic reporting, price information was due within 16 days of the end of the reporting week.  This schedule gave dealers the time they needed to collect the information and still enabled NMFS to provide economic data for analyses within a reasonable time frame.  Therefore, as of May 1, 2005 NMFS proposes to allow dealers 16 days to report price and disposition information.  As specified in the current regulations, effective May 1, 2005, trip identifier will be due within the same time frame as the initial report.
        At-sea Receivers
        The existing regulations for at-sea purchasers, receivers or processors state that “All persons, except persons on Atlantic herring carrier vessels, purchasing, receiving, or processing any Atlantic herring, summer flounder, Atlantic mackerel, squid, butterfish, scup, or black sea bass at sea for landing at any port of the United States must submit information identical to that required by paragraph (a)(1) of this section and provide those reports to the Regional Administrator or designee by the same mechanism and on the same frequency basis.”  Requiring fish received, but not purchased, to be reported is likely to result in duplicate or triplicate reporting of fish transferred at sea.  For example, if an at-sea purchaser reports their purchases, then transfers that same product to an at-sea receiver who also reports it, the result is duplicate data being reported.  This requires more intensive data management and auditing procedures, and increases the likelihood of duplicate data in the database.  This is especially important for species managed by quota or other harvest limit, in which duplicate data could result in an early closure of the fishery.  NMFS proposes to remove the term “receiving,” which would reduce the likelihood of double reporting.
        Computer Acquisition Requirement
        The current regulations require dealers to obtain and utilize a personal computer to comply with the reporting requirements.  This wording may imply that dealers must obtain their own computer in order to comply, thus excluding them from using a computer owned by others.  This was not the intention of the regulation.  Dealers may use any computer that meets the system requirements.  In addition, NMFS has established kiosks in several field offices specifically for dealers to use to meet their reporting requirements.  NMFS proposes to change this wording to indicate that dealers do not have to own the computer used for submitting reports to NMFS.
        Annual Processed Products Report (APPR)
        Current regulations require any dealer issued a Federal permit under this part to complete and submit all sections of the APPR.  The APPR is a census used to collect employment and economic data for the processing segment of the seafood industry.  Certain fisheries, such as surfclam, ocean quahog, and Atlantic mackerel, require processors to be issued a processor permit under this part.  Most entities issued a processor permit are also issued a dealer permit, however, there may be some processors issued only a processor permit under this part.  The current regulations specify that Federal dealers must submit the APPR, inadvertently excluding processors from that requirement.  Therefore, NMFS proposes modifying the language to clarify that both dealers and processors must submit the APPR.
        Operator Permits
        The current regulations specify that an operator must have been issued an operator permit under 50 CFR part 697.  To provide a reciprocal agreement with the SE Region, NMFS proposes to modify the current regulations to allow operator permits issued pursuant to part 622 of this chapter to satisfy permitting requirements under this part.
        Classification
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

        NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA), that describes the economic impacts this proposed rule would have, if adopted, on small entities.  A description of the action, why it is being considered, and the legal basis for the action, are contained in the preamble to this proposed rule and in the SUMMARY.  This rule does not duplicate, overlap, or conflict with any relevant Federal rules.  All of the dealers (approximately 576) that would be impacted by this proposed rule making are considered to be small entities; therefore, there would be no disproportionate impacts between large and small entities.
        This proposed rule would reduce the reporting burden on seafood dealers by reducing the frequency of reporting, eliminating certain species from the current reporting requirements, reducing the frequency of reporting, and minimizing duplicate reporting.  Therefore, this rule would:   Not result in a decrease in annual gross revenues; not increase production costs; not increase compliance costs; and not force any businesses to cease operations.
        In addition to the proposed action, and a No Action alternative, NMFS considered additional options for each of the three major facets of this proposed rule:   Reporting frequency, out-of-region purchases, and inshore species reporting.  For reporting frequency NMFS  considered two additional options.  The first option redefined the dealer categories based on purchases of quota-managed species only, rather than total purchases as is currently the case.  Under this option Small Dealers would continue to report weekly and Large Dealers would continue to report daily.  The second option considered for reporting frequency required weekly reporting for all dealers, with an option for NMFS to implement daily reporting if landings of a species reached levels requiring daily reporting for effective quota monitoring.  Both of these options would reduce the reporting frequency, and thus the cost of compliance, for most dealers.  While the dealers still required to report daily under the first option would not see a cost savings, the cost would not increase for any dealers under that option.  Under the second option, all dealers would see a cost benefit unless and until daily reporting was implemented, at which time the cost of compliance would temporarily increase for some dealers, to the same level as under the current regulations.  The proposed alternative would be most beneficial to dealers in that it would reduce the cost of compliance for all dealers throughout the year.
        For out-of-region dealer reporting NMFS considered two other options for determining what constitutes an out-of-region dealer or trip.  In the first option, the primary business address of the dealer determined whether the dealer was out-of-region or not.  In the second option, the determination was based on the point of purchase for the trip.  In addition, NMFS considered two other options for relieving dealers of inshore species reporting requirements.  One option considered employing dealer-by-dealer reporting exemptions for any non-federally-managed species, if requested by the state agency for that dealer.  The second option allowed for a state agency to request that NMFS relieve all dealers in their state from reporting species to NMFS that are also reported to the state agency, regardless of the management agency.  For both out-of-region purchases and inshore species reporting, the differences in cost savings among the two options and the preferred alternatives are negligible because it is likely that the number of dealers affected under each option is very similar.  However, both the options and the preferred alternatives would result in a time and cost savings compared to the current regulations, due to the reduction in reporting requirements.
        For all other proposed changes included in this proposed rule, only the No Action and proposed action alternatives were considered.  Of these proposed changes, only the elimination of Atlantic bluefin tuna reporting under 50 CFR part 648, removing the option for a dealer to submit reports via FTP, and alleviating at-sea receivers from reporting requirements may have an economic effect on dealers.  The elimination of Atlantic bluefin tuna reporting requirements for dealers issued a permit under 50 CFR part 648 would result in a slight time saving for dealers issued an Atlantic bluefin tuna permit since they would no longer have to report their Atlantic bluefin tuna purchases under two sets of regulations.  Removing the option to submit reports via a phone line FTP would require all dealers to have Internet access which could, theoretically, result in a small cost increase to certain dealers.  However, since no dealers are currently using the FTP option, no dealers would actually be affected by this change.  Alleviating at-sea receivers from submitting purchase reports may save a very small number of entities from reporting under 50 CFR part 648.
        The remaining proposed changes are primarily clarifications or administrative changes that would not result in any economic impacts on the affected entities.  These proposed changes include allowing various units of measure to be reported; requiring the trip identifier and disposition to be reported within 16 days of the end of the reporting week; clarifying which trips require cage tag numbers to be reported; eliminating at-sea receivers from reporting requirements; clarifying that dealers do not have to purchase their own computer to comply with these reporting requirements; and, allowing operator permits issued by the Southeast Region to satisfy operator permit requirements under 50 CFR part 648.  Detailed descriptions of each of the proposed changes are provided in the associated RIR/IRFA document.
        Collection-of-Information Requirements
        This proposed rule contains a collection-of-information requirement, which has been submitted to OMB for approval.  The public's reporting burden for the collection-of-information requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information requirements.
        The revised reporting requirements and the estimated time for a response are as follows:   4 minutes for a dealer purchase report.

        Public comment is sought regarding:   Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology.  Send comments on these or any other aspects of the collection of information to NMFS and to OMB (see ADDRESSES).
        Notwithstanding any other provision of law, no person is required to respond to nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection-of-information displays a currently valid OMB control number.
        This proposed rule follows the final rule implementing electronic reporting requirements for seafood dealers, effective May 1, 2004 (69 FR 13482, March  23, 2004) and addresses several of the concerns raised by industry to NMFS since then.  NMFS anticipates that this proposed rule would result in only a benefit to industry by reducing the reporting burden, minimizing duplicate reporting, and simplifying compliance.  Therefore, because this proposed rule is not expected to result in any negative impacts on the business entities that will be affected, and its earliest implementation is in the best interest of these entities, the comment period is specified to be 15 days.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: February 25, 2005.
          William T. Hogarth,
          Assistant Administrator for Fisheries, Natioinal Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1.  The authority citation for part 648 continues to read as follows:

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

        2.  Section 648.2 is amended by adding, in alphabetical order, a new definition for “Inshore Exempted Species”; and removing the definitions for “Dealer-large” and “Dealer-small” to read as follows:

          § 648.2
          Definitions.

            Inshore Exempted Species means the following species:
          Bay scallop - Aequipecten irradians.
          Blood arc clam - Anadara ovalis.
          Blood worm - Glycera dibranchiata.
          Blue crab - Callinectes similis and Callinectes sapidus.
          Blue mussel - Mytilus edulis.
          Green crab - Carcinus maenas.
          Hermit crab - Clibanarius vittatus, Pagurus pollicaris and Pagurus longicarpus.
          Japanese shore crab - Hemigrapsus sanguineus.
          Oyster - Crassostrea virginica and Ostrea edulis.
          Quahog - Mercenaria mercenaria.
          Razor clam - Ensis directus.
          Sand worm - Neresis virens.
          Soft clam - Mya arenaria.
          Spider crab - Libinia emarginata.

        3.  In § 648.5, paragraph (a) is revised to read as follows:

          § 648.5
          Operator permits.
          (a) General. Any operator of a vessel fishing for or possessing Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies, spiny dogfish, monkfish, Atlantic herring, Atlantic surfclam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or Atlantic bluefish, harvested in or from the EEZ; tilefish harvested in or from the EEZ portion of the Tilefish Management Unit; skates harvested in or from the EEZ portion of the Skate Management Unit; or Atlantic deep-sea red crab harvested in or from the EEZ portion of the Red Crab Management Unit, issued a permit, including carrier and processing permits, for these species under this part, must have been issued under this section, and carry on board, a valid operator permit.  An operator's permit issued pursuant to 50 CFR part 697 or part 622 satisfies the permitting requirement of this section.  This requirement does not apply to operators of recreational vessels.

        4.  In § 648.7, paragraph (f)(1)(ii) is removed and reserved; paragraphs (a)(1)(i), (a)(2), (a)(3) introductory text, (a)(3)(i), (f)(1)(i) introductory text, (f)(1)(iv), (f)(1)(v), and (f)(3) are revised, and paragraph (a)(1)(ii) is added to read as follows:

          § 648.7
          Recordkeeping and reporting requirements.
          (a) * * *
          (1) * * *
          (i) All dealers issued a dealer permit under this part must provide:   Dealer name; dealer permit number; name and permit number or name and hull number (USCG documentation number or state registration number, whichever is applicable) of vessel(s) from which fish are purchased or received; trip identifier for each trip from which fish are purchased or received from a commercial fishing vessel permitted under this part; date(s) of purchases and receipts; units of measure and amount by species (by market category, if applicable); price per unit by species (by market category, if applicable) or total value by species (by market category, if applicable); port landed; cage tag numbers for surfclams and ocean quahogs, if applicable; disposition of the seafood product; and any other information deemed necessary by the Regional Administrator.  If no fish are purchased or received during a reporting week, a report so stating must be submitted.
          (ii) Exceptions. The following exceptions apply to reporting requirements for dealers permitted under this part:
          (A) Inshore Exempted Species, as defined in § 648.2, are not required to be reported under this part.
          (B) When purchasing fish from a vessel landing in a port located outside of the Northeast Region (Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and North Carolina), only purchases of species managed by the Northeast Region under this part, and lobster, managed under 50 CFR part 697, must be reported.  Other reporting requirements may apply to those species not managed by the Northeast Region, which are not affected by this provision.
          (C) Dealers issued a permit for Atlantic bluefin tuna under 50 CFR part 635 are not required to report their purchases of Atlantic bluefin tuna under this part.  Other reporting requirements, as specified in 50 CFR 635.5, apply to Atlantic bluefin tuna purchases.

          (2) System requirements. All persons required to submit reports under paragraph (a)(1) of this section are required to have the capability to transmit data via the Internet. To ensure compatibility with the reporting system and database, dealers are required to utilize a personal computer, in working condition, that meets the minimum specifications identified by NMFS.  The affected public will be notified of the minimum specifications via a letter to all Federal dealer permit holders.
          (3) Annual report. All persons issued a permit under this part are required to submit the following information on an annual basis, on forms supplied by the Regional Administrator:
          (i) All dealers and processors issued a permit under this part must complete all sections of the Annual Processed Products Report for all species that were processed during the previous year.  Reports must be submitted to the address supplied by the Regional Administrator.

          (f) Submitting reports—(1) Dealer or processor reports. (i) Weekly detailed trip reports.  Detailed trip reports required by paragraph (a)(1)(i) of this section must be received within 3 days after the end of the reporting week, by midnight of the following Tuesday. If no fish are purchased or received during a reporting week, the report so stating required under paragraph (a)(1)(i) of this section must be received within 3 days after the end of the reporting week, by midnight on the following Tuesday.
          (ii) [Reserved]

          (iv) Through April 30, 2005, to accommodate the potential lag in availability of some required data, the trip identifier, price and disposition information required under paragraph (a)(1) of this section may be submitted after the weekly dealer report, but must be received within 16 days of the end of the reporting week or the end of the calendar month, whichever is later.  Dealers will be able to access and update previously submitted trip identifier, price, and disposition data.

          (v) Effective May 1, 2005, the trip identifier required under paragraph (a)(1) must be submitted with the weekly dealer purchase report, as required under paragraphs (f)(1)(i) of this section.  Price and disposition information may be submitted after the weekly dealer report, but must be received within 16 days of the end of the reporting week.

          (3) At-sea purchasers and processors. The owner or operator of all vessels, except the owner or operator of an Atlantic herring carrier vessel, purchasing or processing any Atlantic herring, summer flounder, Atlantic mackerel, squid, butterfish, scup, or black sea bass at sea for landing at any port of the United States must submit information identical to that required by paragraph (a)(1) of this section and provide those reports to the Regional Administrator or designee by the same mechanism and on the same frequency basis.

      [FR Doc. 05-4145 Filed 3-3-05; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 0907201154-91155-01]
        RIN 0648-AX99
        Fisheries of the Northeastern United States; Northeast (NE) Skate Complex Fishery; Notice of a Control Date for the Purpose of Limiting Entry to the Skate Bait Fishery; NE Skate Complex Fishery Management Plan (Skate FMP)

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

          ACTION:
           Advance notice of proposed rulemaking; request for comments.

          SUMMARY:
           NMFS announces that it is considering, and is seeking public comment on, proposed rulemaking to control future access to the skate bait fishery in the NE skate complex if a management regime is developed and implemented under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to limit the number of participants in this component of the skate fishery. This component of the fishery includes vessels with open access skate permits that fish for skates to be sold as bait. This announcement is intended, in part, to promote awareness of potential eligibility criteria for future access so as to discourage new or speculative entry into the fishery while the New England Fishery Management Council (Council) considers whether and how access to the skate bait fishery should be controlled.

          DATES:

           The date of publication of this document, July 30, 2009, shall be known as the “control date” and may be used for establishing eligibility criteria for determining levels of future access to the subject fishery, subject to Federal authority. Written comments must be received on or before 5 p.m., local time, August 31, 2009.

          ADDRESSES:
           You may submit comments, identified by 0648-AX99, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
          • Fax: (978) 281-9135, Attn: Tobey Curtis.
          • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Skate Bait Fishery Control Date.”

          Instructions: All comments received are a part of the public record and will generally beposted to http://www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
           Tobey Curtis, Fishery Policy Analyst, phone 978-281-9273, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:

        In 2003, NMFS implemented the Skate FMP to manage a complex of seven skate species in the Northeast Region: Winter (Leucoraja ocellata); little (L. erinacea); thorny (Amblyraja radiata); barndoor (Dipturus laevis); smooth (Malacoraja senta); clearnose (Raja eglanteria); and rosette (L. garmani). The FMP established biological reference points and overfishing definitions for each species, and other management measures designed to rebuild species that were considered overfished (barndoor and thorny). Regulations for the skate fishery are found at 50 CFR part 648 subpart O.
        There are two distinct skate fisheries managed under the FMP: A skate wing fishery, which harvests the pectoral fins of large skates (primarily winter skate) for foreign and domestic food markets; and a skate bait fishery, which targets whole little skates to be sold primarily for bait in the American lobster fishery. The skate fishery currently operates under possession limits of 20,000 lb (9,072 kg) of wings for trips greater than 24 hr in duration, or 10,000 lb (4,536 kg) of wings for trips less than 24 hr in duration. Vessels participating in the skate bait fishery, however, can request a Letter of Authorization from the Regional Administrator to be exempt from these trip limits, and often land in excess of 20,000 lb (9,072 kg) of whole skates per trip to fill bait orders for lobster vessels.
        In 2007, the Council began development of Amendment 3 to the Skate FMP. The amendment is intended to establish a rebuilding plan for smooth skate, which is currently considered overfished, and bolster the rebuilding plan for thorny skate, which remains overfished. Amendment 3, if approved by the Secretary of Commerce, will also implement annual catch limits (ACLs) and accountability measures (AMs), consistent with the new requirements of the reauthorized Magnuson-Stevens Act. The Council has also proposed new management measures for the skate bait fishery, including seasonal quotas, and reduced possession limits, under Amendment 3. Amendment 3 measures will be proposed through a separate rulemaking in the near future.
        In light of these new proposed restrictions and their impacts, members of the skate bait industry and the Council's Skate Oversight Committee recommended that the Council consider restricting new entrants to the skate bait fishery. This Advance Notice of Proposed Rulemaking is intended to discourage new or speculative entry into the bait fishery while controlled access restrictions are considered by the Council. The date upon which this notice is published shall be known as the “control date,” which is intended to distinguish established participants from new or speculative entrants to the fishery. Entering the fishery before the control date does not necessarily ensure fishing vessels of future access to the skate resource on the grounds of previous participation, because additional and/or other qualifying criteria may be applied. The Council may choose different and variably weighted measures to qualify participants based on the type and length of participation in the skate bait fishery or any other criteria.
        This notification establishes July 30, 2009 as the control date for potential use in determining historical or traditional participation in the skate bait fishery. Consideration of a control date does not commit the Council or NMFS to develop any particular management system or criteria for participation in this fishery. The Council may choose a different control date, or may choose a management program that does not make use of such a date.
        Fishing vessels are not guaranteed future participation in the fishery, regardless of their entry dates or level of participation in this fishery before or after the control date. The Council may choose to give variably weighted consideration to vessels active in the fishery before and after the control date. The Council may also choose to take no further action to control entry or access to the fishery, in which case the control date may be rescinded. Any action by the Council will be taken pursuant to the requirements for the development of FMP amendments established under the Magnuson-Stevens Act.
        This notification also gives the public notice that interested participants should locate and preserve records that substantiate and verify their participation in the skate bait fishery in Federal waters.

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

          Dated: July 24, 2009.
          James W. Balsiger,
          Acting Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E9-18264 Filed 7-29-09; 8:45 am]
      BILLING CODE 3510-22-S