        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 300
        [Docket No. 0907231161-91189-01]
        RIN 0648-AY08
        International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Longline and Purse Seine Fisheries in the Eastern Pacific Ocean in 2009, 2010, and 2011

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes regulations under the Tuna Conventions Act of 1950 (Act) to implement a decision of the Inter-American Tropical Tuna Commission (IATTC). That decision requires, among other things, that members of the IATTC, including the United States, ensure that catches in the eastern Pacific Ocean (EPO) of bigeye tuna (Thunnus obesus) by longline vessels greater than 24 meters in length do not exceed specified levels in each of the years 2009, 2010, and 2011, and that purse seine vessels class sizes 4-6 do not fish in the EPO during an established closure period. This action is necessary for the United States to satisfy its obligations under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna (Convention), to which it is a Contracting Party.

          DATES:
          Comments must be submitted in writing by November 9, 2009. A public hearing will be held at 9 a.m. to 12 p.m. PDT, October 21, 2009, Long Beach, CA.

          ADDRESSES:
          You may submit comments on this proposed rule, identified by 0648-AY08, the Initial Regulatory Flexibility Analysis (IRFA), or the draft environmental assessment (EA) prepared for the proposed rule by any of the following methods:
          • Electronic submissions: Submit all electronic public comments via the Federal e-Rulemaking portal, at http://www.regulations.gov.
          • Mail: Rod McInnis, Regional Administrator, NMFS Southwest Regional Office (SWR), 501 W. Ocean Blvd, Suite 4200, Long Beach, Ca 90802. Include the identifier “0648-AY08” in the comments.
          • Public hearing: The hearing will be held at 501 W. Ocean Boulevard, Suite 4200, Long Beach, Ca 90802. The public may also participate in the public hearing via conference line: 888-989-6480; participant passcode: 29574.

            Instructions: All comments received are part of the public record and generally will be posted to http://www.regulations.gov without change. All personal identifying information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (if submitting comments via the Federal e-Rulemaking portal, enter “N/A” in the relevant required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          Copies of the EA prepared under the authority of the National Environmental Policy Act and the IRFA are available at http://swr.nmfs.noaa.gov/ or may be obtained from Rod McInnis, Regional Administrator, NMFS SWR (see ADDRESSES).

          FOR FURTHER INFORMATION CONTACT:
          Heidi Hermsmeyer, NMFS SWR, 562-980-4036.

        SUPPLEMENTARY INFORMATION:

        Electronic Access
        This proposed rule is also accessible at http://www.gpoaccess.gov/fr.
        Background on the Convention and the IATTC

        The Convention entered into force in May 1949. The full text of the Convention is available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf. The Convention Area includes the waters bounded by the coast of the Americas, the 40 N. and 40 S. parallels, and the 150 W. meridian. The Convention focuses on the conservation and management of highly migratory species (HMS) and the management of fisheries for HMS, and has provisions related to non-target, associated, and dependent species in such fisheries.
        The IATTC, established under the Convention, is comprised of the Members, including High Contracting Parties to the Convention and fishing entities that have agreed to be bound by the regime established by the Convention. Other entities that participate in the IATTC include Cooperating Non-Parties, Cooperating Fishing Entities, and Regional Economic Integration Organizations. Cooperating Fishing Entities participate with the authorization of the High Contracting Parties with responsibility for the conduct of their foreign affairs. Cooperating Non-Parties are identified by the IATTC on a yearly basis. In accepting Cooperating Non-Party status, such States agree to implement the decisions of the IATTC in the same manner as Members.
        The current Members of the IATTC are Colombia, Costa Rica, Ecuador, El Salvador, France, Guatemala, Japan, Mexico, Nicaragua, Panama, Peru, Republic of Korea, Spain, United States, Vanuatu, and Venezuela. The current Cooperating Non-Parties, Cooperating Fishing Entities and Regional Economic Integration Organization are Belize, Canada, China, Cook Islands, Kiribati, Chinese Taipei, and the European Union.
        International Obligations of the United States under the Convention

        As a Contracting Party to the Convention and a Member of the IATTC, the United States is legally bound to implement the decisions of the IATTC. The Act (16 U.S.C. 951-961 and 971 et seq.) authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard (USCG) is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the IATTC. The authority to promulgate regulations has been delegated to NMFS.
        IATTC Decisions Regarding Longline and Purse Seine Fisheries

        At its Eightieth Meeting, in June 2009, the IATTC adopted the Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean in 2009-2011 (Resolution C-09-01) related to bigeye and yellowfin tunas (Thunnus albacares) in the EPO. The resolution, available with other decisions of the IATTC at http://www.iattc.org/ResolutionsActiveENG.htm, places certain obligations on the IATTC's High Contracting Parties, Cooperating Non-Parties, Cooperating Fishing Entity, and Regional Economic Integration Organization (collectively, CPCs). With respect to bigeye tuna, the resolution is based in part on the recommendations and analysis of IATTC scientific staff and the 2009 stock assessment completed by IATTC staff. The assessment verified that the stock of bigeye tuna in the EPO is experiencing a fishing mortality rate greater than the rate associated with average maximum sustainable yield, and the spawning stock biomass is below that which supports average maximum sustainable yield, thus the stock is subject to overfishing and is overfished. The Convention calls for the IATTC to adopt measures designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors. Accordingly, Resolution C-09-01 has the objective of reducing, over the period 2009-2011, the fishing mortality rate for bigeye tuna in the EPO. It is estimated that the fishing mortality of bigeye tuna would be reduced by 19% in 2009, 20% in 2010, and 24% in 2010 based on averages over the 1995-2003 timeframe.
        Among other provisions, the resolution establishes specific catch limits for bigeye tuna captured by longline vessels over 24 meters in length (large-scale longline vessels) for the years 2009, 2010, and 2011. The limits are prescribed relative to catches made during specified baseline periods, and commensurate with the estimated reductions in catch of bigeye tuna in the purse seine fishery with the implementation of the closure period. China, Japan, Korea, and Chinese Taipei, the countries with the highest levels of bigeye tuna catch in longline fisheries in the EPO, have specific catch levels for 2009 and 2010. Other CPCs must ensure their annual longline catches of bigeye tuna in the EPO during 2009-2010 do not exceed the greater of 500 metric tons (mt) or their respective catches of bigeye tuna in 2001. The U.S. catch of bigeye tuna in longline fisheries in the EPO for 2001 was only about 150 mt; therefore, the U.S. longline catch limit of bigeye tuna would be 500 mt in the EPO for 2009 and 2010. For 2011, the total annual longline quotas of bigeye tuna in the EPO would be adjusted to be commensurate with the measures adopted for purse seine vessels by the Commission in 2011.
        IATTC Resolution C-09-01 also establishes a purse seine closure for all purse seine vessels class sizes 4-6 in the EPO for a period of 59 days in 2009, 62 days in 2010, and 73 days in 2011. Each CPC must choose one of two periods in each year as follows: for 2009, August 1 to September 28, or November 21 to January 18; for 2010, July 29 to September 28, or November 18 to January 18; and for 2011, July 18 to September 28, or November 7 to January 18. In 2011, the results of the conservation measures adopted will be evaluated by the Commission, in the context of the results of the stock assessments for 2011 and, depending on the conclusions reached by the scientific staff of the Commission, the period of duration of the closure for that year shall be ratified or adjusted. Notwithstanding theses provisions, purse seine vessels of IATTC capacity class size 4 (between 182 and 272 mt carrying capacity) will be able to make one single fishing trip of up to 30 days duration during the specified closure periods, provided that any such vessel carries an observer of the On-Board Observer Program of the Agreement on the International Dolphin Conservation Program (AIDCP).
        IATTC Resolution C-09-01 also establishes a closure for all purse seine vessels class sizes 4-6 within the area between 96° and 110° W. longitude and between 4° N. and 3° S. latitude from 0000 hours on September 29 to 2400 hours on October 29 for 2009, 2010, and 2011 (also known as “el corralito” closure).

        Furthermore, purse seine vessels would continue to be required to retain on board and then land all skipjack (Katsuwonus pelamis), bigeye, and yellowfin tuna caught; however, there would be a minor change to the existing regulations at 50 CFR 300.24(e) and 300.25(e)(1) that would amend the exception to the tuna retention measure and make the regulations only applicable to purse seine vessels class sizes 4-6. Tuna would not need to be retained for fish considered unfit for human consumption for reasons other than size, and the single exemption of this would be the final set of a trip, when there may be insufficient well space remaining to accommodate all the tuna caught in that set. Currently the language is slightly different than this but with similar intent, so the amendment would serve to make the regulatory language consistent with IATTC Resolution C-09-01, but would most likely not result in any changes to the purse seine fishery. The efficacy and impacts of the tuna retention requirement will be reviewed at the annual Commission meeting in 2010 and the Commission will decide whether to continue it.
        Proposed Action

          Restrictions in the Longline Fishery The bigeye tuna limits established in Resolution C-09-01 are termed “catch” limits. The annual limit on harvests by large-scale longline vessels covers all bigeye tuna that is retained on board, as opposed to all bigeye tuna caught. Accordingly, the proposed rule would establish a limit of 500 mt of bigeye tuna that is caught and retained. The limit would have the purpose of reducing fishing mortality of EPO bigeye tuna. Once NMFS determines in any of the years 2009, 2010, or 2011 that the limit is expected to be reached by a specific future date in that year, NMFS would publish a notice in the Federal Register announcing that the limit is expected to be reached and that specific restrictions will be effective on that particular date until the end of the calendar year. NMFS would publish the notice at least seven calendar days before the effective date of the restrictions to provide fishermen advance notice of the restrictions. NMFS would also endeavor to make publicly available, such as on a website, regularly updated estimates and/or projections of bigeye tuna landings in order to help fishermen plan for the possibility of the limit being reached. In Resolution C-09-01, the IATTC has reserved the option of reversing or amending its adoption of the bigeye tuna catch limits in longline fisheries at its regular annual session in June 2011. If such a decision occurs, NMFS will take appropriate action to rescind any closed areas that are established by regulation.
        Starting on the announced date and extending through the last day of that calendar year, it would be prohibited to use a U.S. fishing vessel greater than 24 meters in length to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear. Bigeye tuna caught incidentally in the longline fishery starting on the announced date (e.g., in the shallow-set longline fishery targeting swordfish) would be required to be discarded. Any bigeye tuna already on board an applicable longline fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and/or landed, provided that they are landed within 14 days after the restrictions become effective. In the case of a vessel that has declared to NMFS pursuant to 50 CFR 665.23(a) [applicable to the Hawaii-based longline fishery] that the current trip type is shallow-setting, the 14-day limit would be waived, but the number of bigeye tuna retained on board, transshipped, or landed must not exceed the number on board the vessel upon the effective date of the restrictions, as recorded by the NMFS observer on board the vessel. Starting on the announced date and extending through the last day of that calendar year, it would also be prohibited to transship bigeye tuna caught in the Convention Area by a longline vessel greater than 24 meters in length to any vessel other than a U.S. fishing vessel operating in compliance with a valid permit issued under 50 CFR 660.707 or 665.21.
        These restrictions would not apply to bigeye tuna caught by longline vessels 24 meters in length or less, or to longline gear used outside of the Convention Area, such as in the western and central Pacific Ocean. However, to help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, there would be two additional, related, prohibitions that would be in effect starting on the announced date and extending through the last day of that calendar year. First, it would be prohibited to fish with a large-scale longline vessel both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress at the time the announced restrictions go into effect. In that exceptional case, the vessel, unless on a declared shallow-setting trip, would still be required to land any bigeye tuna taken within the Convention Area within 14 days of the effective date of the restrictions, as described above. Second, if a large-scale longline vessel is used to fish outside the Convention Area and the vessel enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing while the vessel is in the Convention Area.

          Restrictions in the Purse Seine Fishery The proposed rule would prohibit fishing in the EPO by all U.S. purse seine vessels class sizes 4-6 for a period of 59 days in 2009, 62 days in 2010, and 73 days in 2011. Each CPC is required to choose one of two periods in each year to implement the closure for all of its purse seine vessels. For 2009, NMFS does not have the discretion to choose the earlier closure period which would have started on August 1, 2009, due to the timeframe associated with the rulemaking process in the United States. Thus, for 2009, the closure would be from November 21, 2009, to January 18, 2010. For 2010, the options are: i) July 29, 2010, to September 28, 2010, or ii) November 18, 2010, to January 18, 2011. For 2011, the options are: i) July 18, 2011, to September 28, 2011, or ii) November 7, 2011, to January 18, 2012. NMFS will select one of the two closure periods for 2010 and 2011 after consideration of public comments. Notwithstanding the general prohibition on fishing during the closure period, a class size 4 vessel would be allowed to make one single fishing trip of up to 30 days duration during the specified closure periods, provided that any such vessel carries an observer. In Resolution C-09-01, the IATTC has reserved the option of reversing its adoption of the closure at its regular annual meeting in June 2011. If such a decision occurs, NMFS would initiate rulemaking to implement the IATTC decision.
        The proposed rule would also establish an additional area closed to fishing for skipjack, bigeye, and yellowfin tunas by U.S. purse seine vessels class sizes 4-6 from September 29 to October 29 in 2009, 2010, and 2011. The area is a rectangle to the west of the Galapagos Islands and was chosen due to the high levels of juvenile bigeye tuna catch by purse seiners in the area. The area is between 96 and 110 W. longitude and between 4 N. and 3 S. latitude in the Convention Area and is depicted in Figure 1. Purse seine vessels class size 4-6 may transit the closed areas with all fishing gear stowed in a manner so as not to be readily available for fishing.
        Figure 1. Proposed closure area. The area that would be closed to purse seine fishing is the high seas area within the rectangle bounded by the bold black lines. This map displays indicative maritime boundaries only.

          EP19OC09.032

        Purse seine vessels would also continue to be required to retain and land all skipjack, bigeye, and yellowfin tunas; however, there would be some minor changes to the existing regulations at 50 CFR 300.24(e) and 300.25(e)(1). The regulations would be amended to be consistent with IATTC Resolution C-09-01, so the catch retention measure would only be applicable to purse seine vessels class size 4-6, and the exception to the current tuna retention measure would be adjusted accordingly. Tuna would not need to be retained for fish considered unfit for human consumption for reasons other than size, and the single exemption of this would be the final set of a trip, when there may be insufficient well space remaining to accommodate all the tuna caught in that set. Currently the regulatory language is slightly different than this but with similar intent, so the amendment would serve to make the regulatory language consistent with the resolution, but would most likely not result in any significant changes to the purse seine fishery. The catch retention requirement would then remain in effect through December 31, 2011. In Resolution C-09-01, the IATTC has reserved the option of reversing its adoption of the catch retention measure at its regular annual session in 2010. If such a decision occurs, NMFS will take appropriate action to rescind the tuna retention provision.
        Classification
        The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. The results of the analysis are stated below. A copy of this analysis is available from NMFS (see ADDRESSES).
        The purpose of this proposed rule is to implement IATTC Resolution C-09-01 which has the conservation objective of reducing the fishing mortality rate of bigeye tuna in the EPO. This action is necessary for the United States to satisfy its international obligations under the Convention, and reduce fishing pressure on bigeye tuna, a shared international resource which is currently subject to overfishing according to NMFS.
        Longline Fishery
        The proposed rule would apply to owners and operators of U.S. longline vessels over 24 meters length overall, and U.S. purse seine vessels class sizes 4-6 fishing for yellowfin, bigeye, and skipjack tunas in the Convention Area. The total number of affected longline vessels is approximated by the average number of U.S. large-scale longline vessels that have caught bigeye tuna in the EPO in 2005-2008. In each of the years 2005 through 2008, the number of large-scale longline vessels that caught bigeye in the EPO were 18, 8, 18, and 30, respectively. Thus approximately 19 longline vessels on average have the potential to be affected by this proposed rule, if adopted. The majority of the longline vessels that may be affected by this proposed rule are based out of Hawaii and American Samoa. There is also one longline vessel based out of California that would be affected by the proposed rule. These longline vessels target bigeye tuna using deep sets, and during certain parts of the year, portions of the Hawaii and American Samoa fleet target swordfish using shallow sets.

        Most of the Hawaii and American Samoa fleets' fishing effort has traditionally been in the WCPO, but fishing has also taken place in the EPO. The proportion of the large-scale longline vessels annual bigeye tuna catches that were captured in the EPO from 2005 through 2008 ranged from 5 percent to 24 percent, and averaged 14 percent. By far most of the U.S. annual EPO bigeye tuna catch has typically been made in the second and third quarters of the year; in the period 2005-2008 the percentages caught in the first, second, third, and fourth quarters were 19, 25, 51, and 5 percent, respectively. As an indication of the size of businesses in the fishery, average annual fleet-wide ex-vessel revenues during 2005-2007 were about $60 million. Given the number of vessels active during that period (127, on average), this indicates an average of about $500,000 in annual revenue per vessel, thus all of the businesses affected by the longline measures would be considered small business entities.
        For the purpose of projecting baseline conditions for the longline fishery under no action, this analysis relies on fishery performance from 2005 through 2008, since prior to 2005 the longline fishery regulations underwent major changes (the swordfish-directed shallow-set longline fishery was closed in 2001 and reopened in 2004 with limits on fishing effort and turtle interactions). Bigeye tuna landings from 2005 through 2008 suggest that it is unlikely that the proposed limit would be reached in any of the years during which the limit would be in effect (2009, 2010, and 2011). The proposed limit, 500 mt, is less than the amount landed by large-scale longline vessels in 2005-2008. Large-scale longline vessels fishing in the EPO caught about 166 mt of bigeye tuna in 2005, 51 mt of bigeye tuna in 2006, 118 mt of bigeye tuna in 2007, and 325 mt of bigeye tuna in 2008. Thus, it is estimated that even with a large increase in the catch rates of bigeye tuna in the EPO the 500 mt catch limit would not be reached in any of the applicable years (2009-2011).
        In summary, all entities affected by the bigeye quota in longline fisheries are believed to be small entities, so small entities would not be disproportionately affected relative to large entities. In addition, this part of the proposed rule is not likely to have a significant impact on a substantial number of small entities because it is unlikely that the bigeye landings limit that would be imposed on large-scale longline vessels would be reached in any given year.
        Purse Seine Fishery
        The total number of affected purse seine vessels is approximated by the current number of U.S. purse seine vessels class size 4-6 authorized to fish in the IATTC Convention Area. As of July 2009, there were five U.S. purse seine vessels listed on the IATTC Vessel Register; two are class size 5 (273 to 363 mt carrying capacity) and three are class size 6 (greater than 363 mt carrying capacity). Purse seine vessels class sizes 5 and 6 usually fish outside U.S. waters and deliver their catch to U.S. (e.g., American Samoa) or foreign (e.g., Ecuador, Mexico, Colombia, Costa Rica) ports. Skipjack and yellowfin tuna are the primary target species in the purse seine fishery, and bigeye tuna is incidentally targeted. Class size 6 vessels are required to have 100 percent observer coverage, while class size 5 vessels are not required to carry an observer. Purse seine vessels class size 5 would be considered small business entities (revenues equal to or less than $4 million per year). It is estimated that from 2004-2008, the majority, if not all, class size 5 U.S. purse seine vessels have had revenues of less than $0.5 million per year. Class size 6 vessels are categorized as large business entities (revenues in excess of $4 million per year). A large purse seine vessel typically generates about 4,000 to 5,000 mt of tuna valued at about $4 to $5 million per year.
        It is estimated that purse seine sets would be prohibited for 16 percent of the year in 2009 (59 day closure/365 days), 17 percent of the year in 2010 (61 day closure/365 days), and 20 percent of the year in 2011 (73 day closure/365 days), thus catches would be expected to be affected accordingly unless effort was shifted to areas outside of the Convention Area during the closure period, or to different times of the year when there is no closure. The affected vessels are capable of fishing outside of the closure area (i.e., in the WCPO) during the closure period and/or for the remainder of the year, since the fishery continues year round, and vessels tend to use relatively short closures (such as these) for regular vessel maintenance. Fishing in the WCPO may produce additional costs to some of the affected vessels that are based out of the U.S. West Coast and primarily fish in the EPO due to the increase in costs associated with fishing further away from port. In addition, if a vessel has already undergone the necessary maintenance and repairs for 2009, the closure could result in economic costs to the vessel owner.
        Other factors that have the potential to inhibit these vessels from fishing outside of the EPO include licensing availability and costs, and the recent implementation of effort limits for purse seine vessels fishing in the WCPO. It is assumed that fishing in the WCPO is the only practical geographic alternative for these vessels. Purse seine vessels fishing in the WCPO under the South Pacific Tuna Treaty (SPTT) are required to license their vessels; the maximum number of licensed vessels allowed in the U.S. purse seine fishery in the WCPO is 40 and currently there are 39 licensed vessels. The vessel registration fee is about $3,250 per vessel. The three class size 6 purse seine vessels that are authorized to fish in the Convention Area are already registered under the SPTT. It may not be economically viable for the class size 5 purse seine vessels to register under the SPTT and fish in the WCPO because of their smaller carrying capacity and the increased costs associated with fishing far from port. At least one of the class size 5 vessels would not be able to register to fish in the WCPO because only one license is available.
        In addition, a Final Rule published in the Federal Register on August 4, 2009, prohibits purse seine sets around FADs, deploy FADs, or service FADs in the WCPO from July 1 to September 30 in 2010 and 2011, and fishing effort limits were established for 2009 through 2011 on the number of fishing days that may be spent by the U.S. purse seine fleet on the high seas in the WCPO and in areas under U.S. jurisdiction (i.e., the U.S. EEZ) (74 FR 38544, August 4, 2009). However, according to an analysis of the impacts of the effort limits on the purse seine fishery in the WCPO, prepared by NMFS for the Final EA, the effort limit may not represent real change from the status quo as the effort limit is set at approximately the level expected to be exerted by 40 vessels. In addition, during the FAD prohibition period, purse seine vessels would still be permitted to make purse seine sets on unassociated schools of tuna, which generally results in a different catch composition.
        In summary, two small business entities, and three large business entities may be affected by the purse seine measures. Small entities would not be disproportionately affected relative to large entities because it is likely that these entities would be able to fish during the rest of the year when the fishery is not subject to a closure, and it may be possible for at least one of these vessels to obtain the necessary license to fish in the WCPO during the closure period. In addition, this part of the proposed rule is not likely to have a significant impact on a substantial number of small entities because only two vessels may be affected and it is estimated that their fishing effort will not change much from the status quo.

        NMFS compared the effects of the proposed rule and various alternatives to the proposed rule on small business entities. For the longline fishery, there was a no-action alternative and two action alternatives. One of the action alternatives would prohibit all longline fishing in the Convention Area once the limit is reached, rather than just prohibiting the retention, transshipment, and landing of bigeye tuna caught in the Convention Area. The other action alternative would prohibit deep-set longline fishing in the Convention Area once the limit is reached, allowing shallow-set longline fishing in the Convention Area to continue, provided that no bigeye tuna and no yellowfin tuna caught in the Convention Area are retained, transshipped, or landed. It is estimated that the bigeye quota would not be reached in any year based on a forecast conducted by the PIFSC, thus fishing effort would not be affected and the proposed action and the alternatives are not likely to have an economic impact on small business entities. However, in the unlikely event that the bigeye quota were reached, both of these alternatives would have greater economic impacts on small entities as they would place greater restrictions on the fishery compared to the proposed action.
        For the EPO purse seine closure, the members of the IATTC are given the discretion to choose between two options for when to implement the closure period in each year. Thus, there is one action alternative and one no-action alternative for each applicable year which differs from the proposed action in terms of when the closure is implemented. However, based on catch data from 2004-2009, small entities have historically made more tuna landings in the EPO during the alternative's closure period (July through September) compared to the proposed closure period (November through January). Thus, this option would not minimize the economic impact on small entities and has the potential to increase it. There were no alternatives for the 30-day purse seine closure to the west of the Galapagos from 2009-2011 and for the tuna retention measure which would accomplish the stated objectives of Resolution C-09-01 and which would minimize any significant economic impact on the affected small entities.
        There are no reporting, recordkeeping or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.

          List of Subjects in 50 CFR Part 300
          Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

          Dated: October 13, 2009.
          Samuel D. Rauch III,
          Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 300, the heading for subpart C and subpart C are proposed to be amended as follows:

          PART 300—INTERNATIONAL FISHERIES REGULATIONS

          Subpart C—Eastern Pacific Tuna Fisheries

        1. The authority citation for 50 CFR part 300, subpart C, continues to read as follows:

          Authority:
          16 U.S.C. 951-961 et seq.

        2. In § 300.21, the definition of “Fishing trip” is revised and a definition of “Longline gear” is added, in alphabetical order, to read as follows:

          § 300.21
          Definitions.

            Fishing trip means a period of time during which a fishing vessel is used for fishing, beginning when the vessel leaves port and ending when the vessel lands fish.

            Longline gear means a type of fishing gear consisting of a main line that exceeds 1 nautical mile in length, is suspended horizontally in the water column anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached.

        3. In § 300.24, paragraph (e) is revised, and new paragraphs (k) through (n) are added to read as follows:

          § 300.24
          Prohibitions.
          (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught by a fishing vessel of the United States of class size 4-6 using purse seine gear in the Convention Area, except fish considered unfit for human consumption due to reasons other than size, and except on the last set of the trip if there is insufficient well capacity to accommodate the entire catch.
          (k) Use a fishing vessel over 24 meters in length to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area or to fish in contravention of § 300.25(b)(4)(i) or (ii).
          (l) Use a fishing vessel over 24 meters in length to fish in the Pacific Ocean using longline gear both inside and outside the Convention Area on the same fishing trip in contravention of § 300.25(b)(4)(iii).
          (m) Fail to stow gear as required in § 300.25(b)(4)(iv) or (f)(3).
          (n) Use a fishing vessel of class size 4-6 to fish with purse seine gear in the Convention Area in contravention of § 300.25(f)(1) or (2).

        4. In § 300.25, paragraphs (b) and (e)(1) are revised, and paragraph (f) is added to read as follows:

          § 300.25
          Eastern Pacific fisheries management.
          (b) Tuna quotas in the longline fishery in the EPO.

          (1) Fishing seasons for all tuna species begin on January 1 and end either on December 31 or when NMFS closes the fishery for a specific species.
          (2) For each of the calendar years 2009, 2010, and 2011, there is a limit of 500 metric tons of bigeye tuna that may be captured and landed by longline gear in the Convention Area by fishing vessels of the United States that are over 24 meters in length.

          (3) NMFS will monitor bigeye tuna landings with respect to the limit established under paragraph (b)(2) of this section using data submitted in logbooks and other available information. After NMFS determines that the limit in any year is expected to be reached by a specific future date, and at least 7 calendar days in advance of that date, NMFS will publish a notice in the Federal Register announcing that the limit has been reached and that the restrictions described in paragraphs (b)(4) of this section will be in effect through the end of the calendar year.
          (4) Once an announcement is made pursuant to paragraph (b)(3) of this section, the following restrictions will apply during the period specified in the announcement:
          (i) A fishing vessel of the United States over 24 meters in length may not be used to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except as follows:
          (ii) Any bigeye tuna already on board a fishing vessel upon the effective date of the prohibitions may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided that they are landed within 14 days after the prohibitions become effective. In the case of a vessel that has declared to NMFS, pursuant to § 665.23(a) of this title, that the current trip type is shallow-setting, the 14-day limit is waived, but the number of bigeye tuna retained on board, transshipped, or landed must not exceed the number on board the vessel upon the effective date of the prohibitions, as recorded by the NMFS observer on board the vessel.

          (iii) Bigeye tuna caught by longline gear used on a vessel of the United States over 24 meters in length in the Convention Area may not be transshipped to a fishing vessel unless that fishing vessel is operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title.
          (iv) A fishing vessel of the United States over 24 meters in length may not be used to fish in the Pacific Ocean using longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip during which the prohibitions were put into effect as announced under paragraph (b)(3) of this section, in which case the provisions of paragraphs (b)(4)(ii) and (b)(4)(iii) of this section still apply.
          (v) If a fishing vessel of the United States over 24 meters in length is used to fish in the Pacific Ocean using longline gear outside the Convention Area and the vessel enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing; specifically, the hooks, branch or dropper lines, and floats used to buoy the mainline must be stowed and not available for immediate use, and any power-operated mainline hauler on deck must be covered in such a manner that it is not readily available for use.
          (e) Bycatch reduction measures.

          (1) Bigeye, skipjack, and yellowfin tuna caught by a fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) using purse seine gear must be retained on board and landed, except fish deemed unfit for human consumption for reasons other than size from 0000 hours on January 1, 2010 to 2400 hours on December 31, 2011. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire catch.
          (f) Purse seine closures in the EPO.

          (1) A fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) may not be used to fish with purse seine gear in the Convention Area from 0000 hours on November 21, 2009, to 2400 hours on January 18, 2010; from 0000 hours on November 18, 2010, to 2400 hours on January 18, 2011; and from 0000 hours on November 7, 2011, to 2400 hours on January 18, 2012, except that a vessel of class size 4 (182 to 272 metric tons carrying capacity) may make one fishing trip of up to 30 days duration during the specified closure period, provided that the vessel carries an observer of the On-Board Observer Program of the Agreement on the International Dolphin Conservation Program during the entire fishing trip.
          (2) A fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) may not be used from 0000 hours on September 29 to 2400 hours on October 29 in the years 2009, 2010, or 2011 to fish with purse seine gear within the area bounded at the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude.
          (3) At all times while a vessel is in a Closed Area established under paragraphs (f)(1) or (f)(2) of this section, the fishing gear of the vessel shall be stowed in a manner as not to be readily available for fishing. In particular, the boom shall be lowered as far as possible so that the vessel cannot be used for fishing, but so that the skiff is accessible for use in emergency situations; the helicopter, if any shall be tied down; and launches shall be secured.

      [FR Doc. E9-25064 Filed 10-16-09; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 000504124-0124-01; I.D. 011900B]
        RIN 0648-AK11
        Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Prohibition on the Use of Set Net Fishing Gear

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

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes regulations to prohibit the use of set net (gillnet and trammel nets) fishing gear to take groundfish species in portions of the exclusive economic zone (EEZ) (also known as the fishery management area) adjacent to state waters at four areas off California. Groundfish fisheries in the fishery management area are managed under the Fishery Management Plan for Groundfish Fisheries off the West Coast (Groundfish FMP). California has jurisdiction over fishing for groundfish and other species both within State waters and, with respect to State registered vessels, in the EEZ off California as long as State regulations are not in conflict with Federal regulations. This action would achieve consistency between regulations in waters under California jurisdiction and those in the EEZ. This action is intended to promote effective and consistent conservation of groundfish stocks and California managed species throughout their range and to avoid unnecessary bycatch of California-managed species that might otherwise be harvested in the closed areas but discarded.

          DATES:
          Comments must be submitted by June 19, 2000.

          ADDRESSES:
          Comments on the proposed rule should be sent to Rodney R. McInnis, Acting Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.

          FOR FURTHER INFORMATION CONTACT:
          Svein Fougner, Sustainable Fisheries Division, Southwest Region, NMFS, 562-980-4040.

        SUPPLEMENTARY INFORMATION:
        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes regional fishery management councils to prepare and submit fishery management plans (FMPs) to the Secretary of Commerce (Secretary) for approval and implementation. An FMP may incorporate the relevant fishery conservation and management measures of the coastal states, to the extent they are consistent with the National Standards, the other provisions of the Magnuson-Stevens Act, and any other applicable law.
        The Groundfish FMP was prepared by the Pacific Fishery Management Council (Council) and approved by the Secretary of Commerce in 1982. The FMP covers fisheries for over 80 species, including species that are taken in the EEZ and in State waters off California, Oregon and Washington. In the absence of Federal regulations under the Magnuson-Stevens Act a state may continue to apply its own regulations to fishers registered under the laws of that State even if they are fishing in the EEZ. Further, even for a fishery managed under an FMP, a state's regulations that affect fishing for managed species may remain in force as long as they do not conflict with the Federal regulations governing that fishery.
        The Council recognized that there could be instances in which it might be desirable or necessary to adjust Federal regulations (pertaining to) fishing for species under the FMP to be consistent with state regulations to achieve effective conservation of groundfish as well as non-groundfish stocks that occur in both the EEZ and state waters. Therefore, the FMP contains procedures whereby state regulations can be reviewed by the Council to determine that state regulations are consistent with the FMP. The Council, after making such a determination, may request that Federal regulations be promulgated to ensure consistency in letter and effect.
        This is the case with this proposed rule. As provided by the FMP, the Council reviewed for consistency with the goals and objectives of the FMP, California regulations prohibiting the use of set nets in certain EEZ waters adjacent to California waters. In deference to California's historical management of halibut and white croaker and in the interest of sound and consistent fishery management, the Council recommended that NMFS implement regulations to prohibit set net fishing for groundfish species in the portions of the EEZ in the areas currently closed under California law.
        There are four California closures that would be affected by this proposed rule: (1) The portion of the fishery management area in an area between a line extending 245° magnetic from the most westerly point of the west point of the Point Reyes headlands in Marin County and the westerly extension of the California-Oregon boundary; (2) any waters in the fishery management area which are 40 fathom (fm) or less deep at mean lower low tide between a line extending 245° magnetic from the most westerly point of the west point of the Point Reyes headlands in Marin County and a line extending 225° magnetic from Pillar Point at half Moon Bay in San Mateo County, and 60 fm or less deep at mean lower low tide between a line extending 225° magnetic from Pillar Point at Half Moon Bay in San Mateo County to a line extending 220° magnetic from the mouth of Waddell Creek in Santa Cruz County; (3) any waters in the fishery management area that are 30 fm or less deep at mean lower low tide within the portion of California District 18 north of a line extending due west from Point Sal in Santa Barbara County; and (4) any waters in the fishery management area that are less than 35 fm deep in the area between a line running 180° true from Point Fermin and a line running 270° true from the south jetty of Newport Harbor. This last area is called Huntington Flats.

        The primary goal of closures (1) through (3) was to minimize entanglement and drowning of protected birds and marine mammals off central California. Federal studies confirm that the take of sea otters and harbor porpoises has decreased significantly since California established set net closures in coastal waters. Closure (4) was the result of the Marine Resources Protection Act (MRPA), which was adopted through voters' approval of a ballot initiative (Proposition 132) in 1990. As in central California, several set net prohibitions in southern California were motivated by the desire to minimize the adverse impacts of set net fishing on nontarget marine mammals, rockfish, and lingcod resources. However, at Huntington Flats, the primary emphasis was on public concern for state species, particularly California halibut, rather than protected species or targeted groundfish.

        “Set net” is a term used in California law to define “any net or line used to take fish that is anchored to the bottom on each end and is not free to drift with the tide or current.” This generic term includes gillnets and trammel nets as specified in Federal regulations: “Set net: A stationary, buoyed, and anchored gillnet or trammel net” (50 CFR 660.302(17)). A “gillnet” is defined in Federal regulations as “a rectangular net that is set upright in the water” (50 CFR 600.10(i)); a “trammel net” is defined as “a gillnet made with two or more walls joined to a common float line” (50 CFR 660.302(20)). Set nets work by gilling or entangling fish in their mesh.
        Laws regulating set nets in the EEZ off California have typically been enacted by the California legislature to prevent drowning of marine birds and mammals, to conserve fishery resources, and to reduce fisheries conflicts. In 1990, California voters approved the MRPA, which prohibits the use of set nets to take rockfish in the EEZ. It also prohibits the use of set nets to take all species of fish in California waters along the mainland shore, within 1 mile of the offshore Channel Islands south of Point Arguello and in an area of the EEZ less than 35 fm deep at the Huntington Flats between the ports of San Pedro, Los Angeles County, and Newport Beach, Orange County.
        Federal regulations implementing the FMP prohibit the use of set nets in the EEZ north of 38° N.lat. (Point Reyes, Marin County) but are silent on whether California's set net laws involving the take of groundfish continue to apply in the EEZ south of 38° N. lat. The current regulations do not specifically authorize California to regulate set nets in the EEZ south of 38° N.lat.
        The absence of Federal groundfish regulations that specifically address California laws resulted in a Federal district court challenge by the Los Angeles Commercial Fishermen's Association (LACFA) on the legality of California's enforcement of set net prohibitions on the take of groundfish in the EEZ in the Huntington Flats area. On November 22, 1996, the LACFA obtained a court order that prohibited California from enforcing the MRPA prohibition on the use of set nets at Huntington Flats, and authorized set net permittees to fish for all commercial species of fish, not just groundfish, with set nets in the EEZ at Huntington Flats in waters less than 70 fm deep. This temporary restraining order was extended by a preliminary injunction issued March 20, 1997.
        The purpose of this proposed action is to resolve the unintended conflict between the lack of Federal regulations under the FMP, which is silent on the use of set nets south of 38° N.lat. and California regulations, which prohibit the use of set nets both in State waters and some areas inside the EEZ. The set net closures are intended to conserve a number of non-groundfish species and non-fish living marine resources that are managed under California regulations and are taken in some areas incidental to fishing for groundfish. This proposed action should resolve this legal dispute and allow lifting of the injunction, allowing effective enforcement of the California law and regulations and conservation of the fish and non-fish species involved.
        This action is consistent with the Magnuson-Stevens Act and especially with National Standards 7 and 9. National Standard 7 provides that management shall minimize duplication and costs in the conservation of fishery resources. The proposed action will reduce the cost of administering and enforcing state conservation and management measures in the identified areas by providing a single set of consistent measures. National Standard 9 provides that conservation and management measures shall, to the extent practicable, minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. This National Standard requires Councils to consider the bycatch effects of existing and planned conservation and management measures. Set net gear is relatively non-selective gear, and though groundfish may be the target species, there is often bycatch of other, non-groundfish species such as California halibut (much of which is dead and therefore wasted). The proposed action will reduce this bycatch of species managed under California regulations in both California waters and the EEZ.
        The proposed action also promotes conservation Objective 4 of the FMP, which is to control the impacts of the groundfish fishery on non groundfish species to maintain their long-term reproductive health where conservation problems have been identified for non-groundfish species and the best scientific information shows that the groundfish fishery has a direct impact on the ability of those species to maintain their long-term reproductive health. The FMP authorizes the Council to consider establishing management measures to reduce fishing mortality of non-groundfish species for documented conservation reasons. In this instance, fishers are currently able to fish for groundfish with set net gear in the identified areas, and non-groundfish will be taken incidental to groundfish. Those non-groundfish species will either be killed and discarded or will be retained illegally; in either case, there will be fishing mortality above that which the state would allow in its management program for those non-groundfish species. The proposed action is designed to eliminate this mortality from bycatch of non-groundfish species while minimizing disruption of the groundfish fishery; it will not preclude achievement of any quota, harvest guideline, or allocation of groundfish.
        In addition to the preferred action, two alternatives to address this issue were considered by the Council. The “no action” alternative would have resulted in the Council not recommending any regulations. The second alternative would have set Federal regulations the same as State laws for three areas off central California but allowed the continued use of set nets to take groundfish in the EEZ at Huntington Flats off southern California. The Council ultimately concluded that the lack of a determination affirming the consistency of Federal and California regulations left a legal void that impaired enforcement of California laws and regulations to conserve non-groundfish species and other living marine resources.
        Classification
        The proposed action is consistent with the requirements of the Magnuson-Stevens-Act and the Groundfish FMP. The proposed action will not result in, or promote overfishing of, any groundfish stocks or other species. The proposed action should reduce bycatch of non-groundfish species in the area closed to set net fishing. There may be some improved protection of essential fish habitat for groundfish species in the areas closed to set net fishing. The proposed action will eliminate confusion about applicable regulations in the area while enhancing the enforcement of California regulations. There will be no duplication of effort.

        NMFS prepared an initial regulatory flexibility analysis (IRFA) that describes the impacts that the proposed rule, if adopted, would have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES). A summary of the analysis follows.

        The direct effect of this Federal action would be to prohibit fishing for groundfish species using set net gear in the EEZ in the Huntington Flats area. This will affect fishers who have used set net gear in the waters to be closed. It is noted that four areas would be closed; however, direct effects of the action would only be felt at Huntington Flats, as there apparently has been no set net fishing in the other three areas for many years. Therefore, no new effects would be felt from the closure of those 3 years by Federal regulation. This action is not expected to affect processors since other gear types continue to land Federal species in this area at levels comparable to those before the closure.
        The category of small businesses possibly affected by the proposed regulation is the 89 vessels that reported set net landings from the Huntington Flats area between 1990 and 1995. Owners of 33 of the 89 vessels held gill and trammel net permits in the 1996-1997 season, and thus may be directly affected by this rule by not being able to fish for groundfish in the EEZ at depths less than 35 fm in the Huntington Flats area. These 33 permit holders represent 14 percent of California's total of 235 gill and trammel net permit-holders. While an evaluation of the effects on individual vessels has not been conducted, estimates for the group of vessels show that the reduction in gross revenues for most vessels is likely to be well below 5 percent. An analysis for the proposed action showed that, for a subset of active set net vessels, an average of 30 percent of total annual value by vessel comes from set net fishing in the Huntington Flats area. The remaining 70 percent is taken by other gear types or in other areas. Of the average vessel's annual value of landings from Huntington Flats (30 percent of the total from all areas and gear types), the value of groundfish species represents only 4.5 percent. This represents the value of groundfish species caught in the entire Huntington Flats area, and thus includes the EEZ outside the closure in question (beyond depths of 35 fm). The proposed action allows for set net fishing for groundfish at depths deeper than 35 fm, and public testimony from LACFA indicates up to seven vessels can successfully operate outside 35 fm (see Section 4.2). Further, the proposed action does not prohibit the use of other gear or fishing for other species within or outside the closure area. Based on this analysis, it is expected the closure of Federal waters out to 35 fm at the Huntington Flats area will result in an average reduction of 1.4 percent of annual gross revenue by vessel.
        In addition to the proposed action, two alternatives were considered. The first, a “no action” alternative, would impose the least burden on small entities. However, this alternative would leave the inconsistency between California and Federal regulations in place and would greatly increase the difficulty of enforcing California regulations at Huntington Flats. There could be significant bycatch and discard mortality of state-managed species taken in association with groundfish. Further, if set net fishing were to resume in the other three areas, there could be adverse effects on marine mammals and seabirds. The other alternative would adopt the proposed Federal closures for the three areas in which California's action has already resulted in elimination of set net fishing, while allowing set net fishing to continue at Huntington Flats. This alternative would reinforce California's closures and maintain protection for marine mammals and seabirds. However, it would also maintain the inconsistency between State and Federal regulations at Huntington Flats, creating enforcement difficulties for the California and possibly result in significant bycatch and discard mortality as set net fishers could retain groundfish but not state-managed species taken in this portion of the EEZ. Therefore, this alternative was rejected.
        This proposed rule has been determined to be not significant for the purposes of E.O. 12866.
        An informal consultation was conducted under section 7 of the Endangered Species Act and it was determined that the proposed action is not likely to adversely affect any listed species or adversely affect any critical habitat designated for any listed species.
        The proposed action should reduce the potential for entanglement of marine mammals in set nets in the area to be closed to set net fishing and therefore is consistent with the Marine Mammal Protection Act.
        This action is being proposed in response to a request from California that was endorsed by the Council. The action will make California regulations and Federal regulations consistent and will thus facilitate sound conservation of state-managed resources as well as federally-managed resources. No new costs are imposed on California. Thus, the proposed action is consistent with E.O. 13132 of August 4, 1999.

          List of Subjects in 50 CFR Part 660
          Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

          Dated: May 12, 2000.
          Andrew A. Rosenberg,
          Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows:

          PART 660—FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC
          1. The authority citation for part 660 continues to read as follows:

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

          2. In § 660.322, paragraph (d) is revised to read as follows:

            § 660.322
            Gear restrictions.

            (d) Set nets. Fishing for groundfish with set nets is prohibited in the following portions of the fishery management area:
            (1) Waters north of 38° N.lat.;
            (2) The area between a line extending 245° magnetic from the most westerly point of the west point of the Point Reyes headlands in Marin County and the westerly extension of the California-Oregon boundary;
            (3) Waters which are 40 fm or less deep at mean lower low tide between a line extending 245° magnetic from the most westerly point of the west point of the Point Reyes headlands in Marin County and a line extending 225° magnetic from Pillar Point at half Moon Bay in San Mateo County, and 60 fm or less deep at mean lower low tide between a line extending 225° magnetic from Pillar Point at Half Moon Bay in San Mateo County to a line extending 220° magnetic from the mouth of Waddell Creek in Santa Cruz County;
            (4) The portion of California District 18 north of a line extending due west from Point Sal in Santa Barbara County in waters 30 fm or less deep at mean lower low tide in the portion of the EEZ between a line extending due west form Point Sal in Santa Barbara County and a line extending due south from Point San Luis in San Luis Obispo County; and
            (5) In waters less than 35 fm deep between a line running 180° true from Point Fermin and a line running 270° true from the south jetty of Newport Harbor.

      [FR Doc. 00-12576 Filed 5-18-00; 8:45 am]
      BILLING CODE 3510-22-F


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 011029263-1263-01; I.D. 010201A]
        RIN 0648-AO93
        Atlantic Highly Migratory Species; Quotas and Fishing Areas; Trade Monitoring

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

          ACTION:
          Propose rule; public hearings; request for comments.

          SUMMARY:
          NMFS proposes to amend regulations governing the Atlantic highly migratory species (HMS) fisheries to implement recommendations adopted at the 2000 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT). Specifically, NMFS proposes measures that would set a reserve quota for North Atlantic swordfish, maintain the status quo South Atlantic swordfish quota for 2001, and prohibit imports of Atlantic bigeye tuna harvested by certain countries.  NMFS also proposes to reinstate regulations inadvertently removed during regulatory consolidation that would prohibit persons and vessels subject to the jurisdiction of the United States from possessing fish taken in violation of ICCAT recommendations or from violating another country's fisheries regulations pertaining to species managed by ICCAT.  Finally, NMFS proposes certain corrections to existing trade restrictions to facilitate enforcement of the swordfish dead discard allowance and import of swordfish from designated countries.  The intent of these actions is to improve conservation of the Atlantic highly migratory species and to improve management of these fisheries, while allowing harvest and trade consistent with recommendations of ICCAT.  NMFS will hold public hearings to receive comments from fishery participants, importers, and other members of the public regarding these proposed regulations.

          DATES:
          Written comments on the proposed rule must be received by 5 p.m. on December 31, 2001.
          The hearing dates are:
          1.  November 26, 2001, from 7 to 9 p.m., Fort Lauderdale, FL.
          2.  November 26, 2001, from 7 to 9 p.m., Fairhaven, MA.
          3.  December 10, 2001, from 7 to 9 p.m., Barnegat Light, NJ.

          ADDRESSES:
          The meeting locations are:
          1. Fort Lauderdale-Broward County Main Library, Bienes Center, 6th Floor, 100 South Andrews Avenue, Fort Lauderdale, FL, 33301
          2. Fairhaven-Holiday Inn Express, 110 Middle Street, Fairhaven, MA, 02719
          3. Barnegat Light-Barnegat Light First Aid Squad, West Tenth Street, Barnegat Light, NJ, 08006

          Comments on the proposed rule should be sent to, and copies of the Draft Environmental Assessment/Regulatory Impact Review (EA/RIR) may be obtained from Chris Rogers, Chief, Highly Migra Proposed rule; public hearings; request for comments. tory Species Division,1315 East-West Highway F/SF1, Silver Spring, MD, 20910.  These documents are also available from the Highly Migratory Species Division website at www.nmfs.noaa.gov/sfa/hmspg.html .  Comments also may be sent via facsimile (fax) to 727-570-5656.  Comments will not be accepted if submitted via e-mail or on the Internet.

          FOR FURTHER INFORMATION CONTACT:
          Jill Stevenson, 301-713-2347 or e-mail at jill.stevenson@noaa.gov or Pat Scida, 978-281-9260 or email at pasquale.scida@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The U.S. Atlantic HMS fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (FMP).  Implementing regulations at 50 CFR part 635 are issued under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; codified at 16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act (ATCA; codified at 16 U.S.C. 971 et seq.).  Regulations issued under the authority of ATCA carry out the recommendations of ICCAT.
        North Atlantic Swordfish Quota
        At the 2000 meeting of ICCAT, Japan indicated that it had exceeded its North Atlantic swordfish quota, due to higher than anticipated incidental catch rates of swordfish in its bigeye tuna fishery.  The overharvest has forced Japan to require its fishermen to release all swordfish, regardless of whether such swordfish are retrieved dead.  By its nature, this incidental catch problem is difficult to address, and Japan will continue to monitor the number of swordfish discarded dead.  In the interests of supporting the ICCAT swordfish stock rebuilding program and accounting for all sources of mortality, the United States agreed to assist Japan with a one-time transfer of North Atlantic swordfish quota (400 mt whole weight (ww); 301 mt dressed weight (dw)) in 2001.  The quota transfer agreement had the full support of the U.S. ICCAT Commissioners and representatives of the U.S. longline industry.

        For the purposes of the transfer agreement, NMFS proposes to amend the HMS regulations to establish a reserve quota for swordfish, in part to provide for the reservation of quota to transfer to Japan, and to amend the procedures by which any additional reserve quota shall be apportioned to other fishing categories.  Recently, NMFS published a notice adjusting the 2001 quotas for North Atlantic swordfish by carrying forward the unharvested amount from the 1999 fishing year (66 FR 46401, September 5, 2001).  It is anticipated, based on preliminary landings data, that some unharvested U.S. swordfish quota from the 2000 fishing year will also be available for carryover to the 2001 fishing year.  NMFS proposes to allocate a portion of the carryover amounts from 1999 and/or 2000 to the reserve, with the remainder to be allocated to the fishing categories for the 2001 fishing year.  The reserve amount could then be used to effect the proposed transfer to cover excess dead discards by Japanese vessels.  Any additional quota shall be held in reserve for inseason adjustments to fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, or for other purposes consistent with management objectives.
        South Atlantic Swordfish Quota
        Consistent with the 2000 ICCAT recommendation, NMFS proposes to maintain the current U.S. South Atlantic swordfish quota at 384 mt ww (289 mt dw) for the 2001 fishing year.  NMFS estimates that in the 2000 fishing year, only 11 percent of the U.S. South Atlantic Swordfish quota was harvested (based on preliminary landings data).  However, the ICCAT recommendation does not authorize carryover of unharvested South Atlantic swordfish quota.
        Authorized Fishing Areas
        Prior to the publication of the HMS FMP and consolidation of Atlantic HMS regulations under new part 635 of the Code of Federal Regulations (CFR) (64 FR 29090, May 28,1999), regulations governing the Atlantic tunas fisheries existed under 50 CFR part 285.  Regulatory text at 50 CFR 285.3 (b) and (g) prohibited persons and vessels subject to the jurisdiction of the United States from possessing fish taken in violation of regulations implementing ICCAT recommendations or from violating another country's fisheries regulations pertaining to species managed by ICCAT.  These prohibitions were necessary to enforce U.S. regulations for all persons and vessels subject to U.S. jurisdiction, regardless of fishing area.
        While those specific prohibitions were included in the initial proposed consolidated HMS regulations (61 FR 57361, November 6, 1996), they were inadvertently excluded when the consolidated regulations were re-proposed to implement the new requirements of the HMS FMP (64 FR 3486, January 20, 1999).  The regulatory consolidation was not intended to make substantive changes to existing regulations, other than those specifically noted as necessary to achieve consistency or to implement new requirements of the HMS FMP.  The exclusion of the prohibitions at 50 CFR 285.3 (b) and (g) from the consolidated regulatory text under 50 CFR part 635 was a drafting error and requires the correction contained in this proposed rule.  Therefore, NMFS proposes to amend §§ 735.71 (a)(24), (a)(29), and (a)(36) to add these provisions.
        Additionally, at the 2000 ICCAT meeting, the United States was notified that a U.S.-flagged vessel landed Atlantic bluefin tuna caught in the Mediterranean Sea.  U.S. fishermen may not harvest east Atlantic bluefin tuna because ICCAT recommendations supporting the rebuilding program for west Atlantic bluefin tuna prohibit transfer of fishing effort from the western Atlantic to the eastern Atlantic and, further, the U.S. is not a participant in the east Atlantic bluefin tuna allocation scheme.  The Atlantic HMS regulations specifically note the authorized fishing areas and management units of stocks for which the United States is party to ICCAT allocation schemes.  However, there are no specific regulations pertaining to unauthorized fishing areas with respect to those stock management units for which the United States does not have an allocation.  Therefore, NMFS proposes to amend § 635.25 to designate those areas where U.S. fishermen may not harvest certain Atlantic HMS.  One such unauthorized fishing area is the eastern Atlantic Ocean (generally, east of 45° W. long. above 10° N. lat. and west of 25° W. long. below the equator), which is closed to U.S. vessels for the harvest of bluefin tuna.
        Operators of U.S. commercial fishing vessels wishing to fish for species regulated under the authority of ATCA in unauthorized areas may operate under contract with another nation, provided such activities are consistent with applicable U.S. and foreign nation laws and regulations, ICCAT recommendations and international agreements.  In such cases, however, these vessel owners must have an exempted fishing permit issued by NMFS to ensure they are not fishing in violation of U.S. regulations.  Additionally, U.S. citizens may fish recreationally for such species in such areas from a vessel under foreign jurisdiction, provided the vessel is authorized by its flag nation to undertake such fishing activity and is operating consistent with ICCAT recommendations.
        Bigeye Tuna Trade Restrictions
        At its 2000 meeting, ICCAT identified Contracting Parties and non-Contracting parties/entities whose large-scale longline vessels have been fishing for bigeye tuna in a manner that diminishes the effectiveness of ICCAT measures.  Belize, Cambodia, Equatorial Guinea, Honduras, and St. Vincent and the Grenadines were identified as such entities; vessels registered to these countries are fishing in the Atlantic Ocean and have bigeye tuna as their primary target, yet catches are largely unreported and unregulated.  Following the procedures established in the bluefin tuna and swordfish action plans to ensure the effectiveness of those conservation programs, the above mentioned Parties/entities were notified and given the opportunity to rectify the situation.  Having received no satisfactory responses, ICCAT recommended trade restrictive measures for bigeye tuna.
        Therefore, NMFS proposes to ban the import of Atlantic bigeye tuna harvested by vessels flagged by Belize, Cambodia, Equatorial Guinea, Honduras, and St. Vincent and the Grenadines.  Consistent with the ICCAT recommendation, NMFS would not make the restriction on Honduras effective until ICCAT has determined at its 2001 meeting that Honduran vessels are fishing for Atlantic bigeye tuna in a manner that diminishes the effectiveness of ICCAT’s conservation and management measures.  If such a determination is made, NMFS would make effective as soon as possible the trade restrictions as they would apply to Honduras.
        In order to monitor trade of bigeye tuna and enforce the proposed import restrictions, NMFS considered requiring that all bigeye tuna shipments, regardless of their origin, be accompanied by a Certificate of Eligibility (COE) as a condition of entry into the United States.  This document would contain information about the ocean of origin and the flag of the harvesting vessel: data that are not available from existing sources (e.g., Customs entry summary data, shipping invoices).  However, ICCAT also recommended at its 2000 meeting that statistical documentation programs be developed for swordfish and bigeye tuna, similar to the existing bluefin tuna statistical document.  NMFS has initiated internal discussions on this topic and has hosted a public scoping meeting (June 2001) to solicit comments from U.S. industry members and a Technical Workshop (July 2001) for ICCAT counterparts.  At the 2001 meeting, NMFS will continue to work with other ICCAT members to adopt a recommendation for swordfish and bigeye statistical documentation programs.

        Given the expectation of a more comprehensive ICCAT trade monitoring program in the near future, NMFS concludes that a domestic COE program for bigeye tuna implemented only for the short term and replaced by a more comprehensive program in the future is impractical.  Instead, NMFS proposes regulations whereby any bigeye tuna imported into the United States would be assumed to be caught by vessels of the exporting nation.  Importers buying bigeye tuna or its products from the restricted countries listed above would need to show that the product was harvested by flag vessels of another country in order to clear U.S. Customs.  Further, NMFS proposes to amend the regulations regarding restricted ports of entry, codified at § 635.47, to include bigeye tuna, if such port of entry designations become necessary to avoid circumvention of the bigeye tuna trade restrictions.
        Other ICCAT Issues
        ICCAT adopted a number of other recommendations and resolutions at the 2000 meeting that do not presently require rulemaking but will require management action on the part of NMFS.  These include recommendations regarding South Atlantic swordfish and North and South Atlantic albacore.  ICCAT’s 2000 recommendation on blue and white marlin will be addressed in a separate rulemaking.
        ICCAT adopted a status quo target total allowable catch (TAC) for South Atlantic swordfish and contracting parties agreed to establish unilateral catch limits for 2001 consistent with that target TAC.  In December, 2000, the United States informed ICCAT of its intention to restrict harvest of South Atlantic swordfish by U.S. vessels to its previously established annual catch limit of 384 mt ww.  As this annual quota is currently established by regulation, no further action is required at this time.
        Additionally, ICCAT adopted a recommendation for South Atlantic albacore that establishes a 2001 TAC and specifies that countries having caught less than 100 mt ww of southern albacore per year during 1992-96 are subject to an annual catch limit of 100 mt ww.  The United States does not have a directed fishery for South Atlantic albacore, but does take albacore as bycatch in its directed swordfish fishery.  Because U.S. annual South Atlantic albacore landings were well below the 100-mt ww limit in the specified reference years and are not anticipated to increase significantly, no changes to the regulations are proposed at this time.
        ICCAT also adopted a recommendation that sets a 2001 TAC for North Atlantic albacore and establishes the U.S. share as 607 mt ww for the year 2001.  Since average recent harvests have not exceeded this level, no regulations to establish a quota are proposed at this time.  The 2001 recommendation provides for rollover/deduction of over/underharvest of this annual catch limit for quotas yet to be established for years 2002 and/or 2003.  Depending on the requirements of any subsequent ICCAT recommendations for North Atlantic albacore, NMFS may need to undertake rulemaking to establish commercial and recreational harvest quotas and to adjust for any overharvest or underharvest during the 2001 fishing year.
        Other Amendments
        NMFS proposes an amendment to the regulations to correct the dates specified for phasing out the North Atlantic swordfish dead discard allowances.  In a Federal Register notice published December 12, 2000 (65 FR 77523), NMFS inadvertently stated that the dead discard allowance of 160 mt ww would apply to the fishing year beginning May 1, 2001.  The ICCAT recommendation and the supporting rulemaking documents indicate that the 160 mt ww swordfish dead discard allowance applies to the fishing year that begins June 1, 2002.
        NMFS also proposes an amendment to the regulations published December 12, 2000 (65 FR 77523) to implement the 1999 ICCAT recommendation to prohibit swordfish imports from designated countries.  NMFS inadvertently omitted the relevant prohibition that should have accompanied that trade restriction rule and proposes to add it to facilitate enforcement.  NMFS also proposes a change to those swordfish trade restrictions to conform to the 1999 ICCAT recommendation.  The recommendation indicated that trade restrictions should apply only to Atlantic swordfish (not Indian Ocean or Pacific Ocean swordfish), and such a distinction was stated in the preamble to the final rule.  However, the regulatory text prohibits the import of swordfish of any stock harvested by vessels of Belize and Honduras.  The swordfish COE program collects information regarding the ocean area of origin of imported swordfish.  NMFS does not anticipate an enforcement problem associated with restricting trade only of Atlantic swordfish.  Therefore, NMFS proposes to change the import prohibition to apply only to Atlantic swordfish harvested by vessels of Belize and Honduras.
        Public Hearings and Special Accommodations
        NMFS will hold public hearings (see DATES and ADDRESSES) to receive comments from fishery participants and other members of the public regarding these proposed amendments.  These hearings will be physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Jill Stevenson at (301) 713-2347 at least 5 days prior to the hearing date.  For individuals unable to attend a hearing, NMFS also solicits written comments on the proposed rule (see DATES and ADDRESSES).
        Classification
        This proposed rule is published under the authority of the Magnuson-Stevens Act and ATCA.  The Assistant Administrator for Fisheries, NOAA, has preliminarily determined that the regulations contained in this rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic highly migratory species fisheries.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel of Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

          Although the reserve quota would be established with the initial intent of implementing a transfer to Japan, the reserve of 301 mt dw of North Atlantic swordfish would be obtained from unharvested quota from prior fishing years.  Because the North Atlantic swordfish fishery has not been closed in recent years and a significant amount of the available quota has been carried over for several years, the reservation and subsequent transfer of quota for Japan is not expected to result in a closure of the domestic fishery or diminish fishing opportunities for U.S. vessels.  Likewise, the other alternatives considered in the proposed rule would not have economic impacts: the south Atlantic swordfish quota is unchanged; there are no significant imports of Atlantic bigeye tuna from the designated countries; and the other amendments serve only to clarify and facilitate enforcement of existing regulations.  These changes would not have an impact on a substantial number of small entities. For example, correcting the date that applies to the swordfish dead discard allowance clarifies and reflects the intent of the relevant ICCAT recommendation.  This change would not have an economic impact since it neither changes the fishing year nor the intent of the dead discard allowance that ICCAT recommended.  The amendment which relates to the scope of swordfish import restrictions would lessen the impact on affected importers if they were to import from those countries because this revision would reduce the scope of the restrictions to include only Atlantic swordfish, instead of applying to swordfish from all ocean areas.  However, this amendment does not have a significant impact on a substantial number of importers since swordfish have not recently been imported from those countries.   In addition, NMFS inadvertently omitted a prohibition on swordfish imports.  Prohibitions are a portion of Federal regulations that succinctly summarize the regulations and are utilized often by enforcement personnel.  Including a prohibition does not change the nature of the regulatory requirements but adds support to prosecution of cases related to such regulatory measures.  Accordingly, these proposed actions, considered separately or in aggregate, are not expected to have a significant economic impact.

        Because of this certification, an initial regulatory flexibility analysis was not prepared.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act.  A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction.  NMFS is currently implementing the reasonable and prudent alternative required by the BiOp.  None of the actions in this proposed rule would have any additional impact on sea turtles as these actions are not likely to increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas.  No irreversible or irretrievable commitments of resources are expected from this proposed action that would have the effect of foreclosing the implementation of the requirements of the BiOp.

          List of Subjects in 50 CFR Part 635

        Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.

          Dated: November 9, 2001.
          Rebecca Lent,
          Acting Assistant Administrator, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

            PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

          1.  The authority citation for part 635 continues to read as follows:

            Authority:
            16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          2.  A new § 635.25 is added to read as follows:

            § 635.25
            Fishing areas.

          (a) General.  Persons on board fishing vessels subject to the jurisdiction of the United States are authorized to fish for, catch, retain, or land species governed by an international catch sharing agreement implemented under this part only in or from those management areas for which the United States has received an allocation.
          (b) Exemptions.  Persons and vessels subject to the jurisdiction of the United States intending to fish for regulated species in fishing areas not otherwise authorized under this part, whether for the purposes of scientific research, or commercial fishing under a chartering arrangement, must have a permit from NMFS issued under § 635.32.
          (c) Atlantic bluefin tuna.  No person aboard a U.S. fishing vessel shall fish for bluefin tuna in or possess on board that fishing vessel, a bluefin tuna taken from, the Atlantic Ocean east of 45° W. long. north of 10° N. lat., east of 35° W. long. between 10° N. lat. and 5° N. lat., east of 30° W. long. between 5° N. lat. and the equator, and east of 25° W. long. south of the equator.

          3-4.  In § 635.27, paragraph (c) is revised to read as follows:

            § 635.27
            Quotas.

          (c) Swordfish. (1) Categories.  Consistent with ICCAT recommendations, the fishing year's total amount of swordfish that may be caught, retained, possessed, or landed by persons and vessels subject to U.S. jurisdiction is divided into quotas for the North Atlantic swordfish stock and the South Atlantic swordfish stock.  The quota for the North Atlantic swordfish stock is further divided into equal semi-annual directed fishery quotas, an annual incidental catch quota for fishermen targeting other species and, as needed, a reserve category.  In addition, a dead discard allowance is established for the North Atlantic swordfish stock.
          (i) North Atlantic swordfish. (A) A swordfish from the North Atlantic swordfish stock caught prior to the directed fishery closure by a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued is counted against the directed fishery quota.  The annual directed fishery quota for the North Atlantic swordfish stock is 1,919 mt dw for each fishing year beginning June 1, 2000. The annual directed fishery quota is subdivided into two equal semiannual quotas of 959.5 mt dw, one for June 1 through November 30, and the other for December 1 through May 31 of the following year.
          (B) A swordfish from the North Atlantic swordfish stock landed by a vessel for which an incidental catch permit for swordfish has been issued, landed by fishermen without swordfish permits consequent to recreational fishing, or caught after the effective date of a closure of the directed fishery from a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued is counted against the incidental catch quota.  The annual incidental catch quota for the North Atlantic swordfish stock is 300 mt dw.
          (C) The dead discard allowance for the North Atlantic swordfish stock is: 320 mt ww for the fishing year beginning June 1, 2000; 240 mt ww for the fishing year beginning June 1, 2001; and 160 mt ww for the fishing year beginning June 1, 2002.  All swordfish discarded dead from U.S. fishing vessels, regardless of whether such vessels are permitted under this part, shall be counted against the allowance.
          (D) A portion of the total allowable catch of North Atlantic swordfish may be held in reserve for inseason adjustments to fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, or for other purposes consistent with management objectives.
          (ii) South Atlantic swordfish.  The annual directed fishery quota for the south Atlantic swordfish stock is 289 mt dw.  The entire quota for the South Atlantic swordfish stock is reserved for pelagic longline vessels for which a directed fishery permit for swordfish has been issued; retention of swordfish caught incidental to other fishing activities or with other fishing gear is prohibited in the Atlantic Ocean south of 5° N. lat.
          (2) Inseason adjustments. (i) NMFS may adjust the December 1 through May 31 semiannual directed fishery quota or, as applicable, the reserve category, to reflect actual directed fishery and incidental fishing category catches during the June 1 through November 30 semiannual period.

          (ii) If NMFS determines that the annual incidental catch quota will not be taken before the end of the fishing year, the excess quota may be allocated to the directed fishery quota or to the reserve.
          (iii) If NMFS determines that it is necessary to close the directed swordfish fishery prior to the scheduled end of a semi-annual fishing season, any estimated overharvest or underharvest of the directed fishery quota for that semi-annual season will be used to adjust the annual incidental catch quota or the reserve as necessary to maintain landings and discards within the required annual limits.
          (iv) NMFS will file with the Office of the Federal Register for publication notification of any inseason swordfish quota adjustment and its apportionment to fishing categories or to the reserve made under this paragraph (c)(2) of this section.
          (3) Annual adjustments. (i) Except for the carryover provisions of paragraphs (c)(3)(ii) and (iii) of this section, NMFS will file with the Office of the Federal Register for publication notification of any adjustment to the annual quota necessary to meet the objectives of the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks. NMFS will provide at least 30 days opportunity for public comment.
          (ii) If consistent with applicable ICCAT recommendations, total landings above or below the specific North Atlantic or South Atlantic swordfish annual quota shall be subtracted from, or added to, the following year's quota for that area.  As necessary to meet management objectives, such carryover adjustments may be apportioned to fishing categories and/or to the reserve.  Any adjustments to the 12-month directed fishery quota will be apportioned equally between the two semiannual fishing seasons. NMFS will file with the Office of the Federal Register for publication notification of any adjustment or apportionment made under this paragraph (c)(3)(ii).
          (iii) The dressed weight equivalent of the amount by which dead discards exceed the allowance specified at paragraph (c)(1)(i)(C) of this section shall be subtracted from the landings quota in the following fishing year or from the reserve category.  NMFS will file with the Office of the Federal Register for publication notification of any adjustment made under this paragraph (c)(3)(iii).

          5.  Section 635.45 is revised to read as follows:

            § 635.45
            Products denied entry.
            (a) All shipments of Atlantic swordfish, or its products in any form, harvested by a vessel under the jurisdiction of Belize or Honduras will be denied entry into the United States.
            (b) All shipments of Atlantic bluefin tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Honduras, or Equatorial Guinea will be denied entry into the United States.
            (c) All shipments of Atlantic bigeye tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Cambodia, Equatorial Guinea, Honduras or St. Vincent and the Grenadines will be denied entry into the United States.  It is a presumption that any shipment containing bigeye tuna or its products offered for entry or imported into the United States has been harvested by a vessel or vessels of the exporting nation.

          6.  Section 635.47 is revised to read as follows:

            § 635.47
            Ports of entry.

          NMFS shall monitor imported shipments of bluefin tuna, bigeye tuna, and swordfish into the United States.  If NMFS determines that the diversity of handling practices at certain ports at which any of these species is being imported into the United States allows for circumvention of the bluefin tuna statistical document, swordfish Certificate of Eligibility requirements, or trade restrictions for these species or for Atlantic bigeye tuna, NMFS may designate, after consultation with the U.S. Customs Service, those ports at which these species may be lawfully imported into the United States.  NMFS shall announce the names of such designated ports and the effective dates of entry restrictions through publication of a notice in the Federal Register.

          7.  In § 635.71,paragraphs (a)(24) and (a)(29) are revised, and a new paragraph (a)(36) is added, to read as follows:

            § 635.71
            Prohibitions.

          (a) * * *
          (24) Import, or attempt to import, any fish or fish products regulated under this part in a manner contrary to any import requirements or import restrictions specified at §§ 635.40, 635.41, 635.45, and 635.46, or at other than an authorized port of entry designated by NMFS under § 635.47.

          (29) Land, transship, ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control:
          (i) Any fish that the person knows, or should have known, was taken, retained, possessed, or landed contrary to this part, without regard to the citizenship of the person or registry of the fishing vessel that harvested the fish.
          (ii) Any fish of a species regulated pursuant to a recommendation of ICCAT that was harvested, retained, or possessed in a manner contrary to the regulations of another country.

          (36) Fish for, or possess on board a fishing vessel, species regulated under this part in unauthorized fishing areas as specified in § 635.25.

      [FR Doc. 01-28646 Filed 11-9-01; 4:32 pm]
      BILLING CODE  3510-22-S