Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendments to the Spiny Lobster Fishery Management Plans for the Caribbean and Gulf of Mexico and South Atlantic, 1148-1152 [E9-372]

Download as PDF 1148 Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules and Regulations including minority and low-income communities. § 52.477 matter. B. Submission to Congress and the Comptroller General Determination of Attainment. EPA has determined, as of January 12, 2009, the District of Columbia portion of the Metropolitan Washington, DC–MD–VA nonattainment area for the 1997 PM2.5 NAAQS has attained the 1997 PM2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this area to submit an attainment demonstration and associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as the area continues to attain the 1997 PM2.5 NAAQS. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Control strategy: Particulate Subpart V—Maryland 3. Section 52.1081 is added to read as follows: ■ Control strategy: Particulate the area continues to attain the 1997 PM2.5 NAAQS. [FR Doc. E8–31305 Filed 1–9–09; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA–R10–OAR–2007–0915; FRL–8747–7] Approval and Promulgation of State Implementation Plans: Oregon; Salem Carbon Monoxide Nonattainment Area; Designation of Areas for Air Quality Planning Purposes Correction In rule document E8–30825 beginning on page 79655 in the issue of Tuesday, December 30, 2008, make the following corrections: 1. On page 79655, in the third column, in the DATES section, in the fourth line, ‘‘January 29, 2008’’ should read ‘‘January 29, 2009’’. C. Petitions for Judicial Review § 52.1081 matter. Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, pertaining to the Metropolitan Washington, DC–MD–VA nonattainment area for the 1997 PM2.5 NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) Determination of Attainment. EPA has determined, as of January 12, 2009, the Maryland portion of the Metropolitan Washington, DC–MD–VA nonattainment area for the 1997 PM2.5 NAAQS has attained the 1997 PM2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this area to submit an attainment demonstration and associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as the area continues to attain the 1997 PM2.5 NAAQS. §81.338 Subpart VV—Virginia [Docket No. 070717349–81641–03] List of Subjects in 40 CFR Part 52 Dated: December 19, 2008. Donald S. Welsh, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: dwashington3 on PROD1PC60 with RULES ■ Authority: 42 U.S.C. 7401 et seq. Subpart J—District of Columbia 2. Section 52.477 is added to read as follows: ■ VerDate Nov<24>2008 15:14 Jan 09, 2009 Jkt 217001 [FR Doc. Z8–30825 Filed 1–9–09; 8:45 am] BILLING CODE 1505–01–D DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 622 and 640 RIN 0648–AV61 Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements. ■ [Corrected] 2. On page 79661, in § 81.338, in the table ‘‘OREGON—CARBON MONOXIDE’’, in the ‘‘Date’’ column, both instances of ‘‘3/2/08’’ should read ‘‘3/2/09’’ 4. Section 52.2429 is added to read as follows: ■ § 52.2429 matter. Control strategy: Particulate Determination of Attainment. EPA has determined, as of January 12, 2009, the Virginia portion of the Metropolitan Washington, DC–MD–VA nonattainment area for the 1997 PM2.5 NAAQS has attained the 1997 PM2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this area to submit an attainment demonstration and associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendments to the Spiny Lobster Fishery Management Plans for the Caribbean and Gulf of Mexico and South Atlantic AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement Amendment 4 to the Fishery Management Plan for the Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands (Caribbean FMP) prepared by the Caribbean Fishery Management Council (Caribbean E:\FR\FM\12JAR1.SGM 12JAR1 Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules and Regulations Council) and Amendment 8 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (Gulf and South Atlantic FMP) prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Gulf and South Atlantic Councils). This final rule establishes two minimum size restrictions for importation of spiny lobster into the United States -one applicable to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands. In addition, this final rule prohibits importation of egg-bearing spiny lobsters and importation of spiny lobster tail meat that is not in whole tail form with the exoskeleton attached. The intended effect of this final rule is to enhance the conservation of the spiny lobster resource and improve effectiveness of law enforcement related to such conservation. DATES: This final rule is effective February 11, 2009. ADDRESSES: Copies of the Final Environmental Impact Statement (FEIS), Initial Regulatory Flexibility Analysis (IRFA), and the Record of Decision (ROD) may be obtained from Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727– 824–5305; fax 727–824–5308; e-mail jason.rueter@noaa.gov. FOR FURTHER INFORMATION CONTACT: Jason Rueter, telephone 727–824–5305; fax 727–824–5308; e-mail jason.rueter@noaa.gov. The spiny lobster fishery of the Caribbean is managed under the Caribbean FMP prepared by the Caribbean Council and is implemented through regulations at 50 CFR part 622. The spiny lobster fishery of the Gulf of Mexico and South Atlantic is managed under the Gulf and South Atlantic FMP prepared by the Gulf and South Atlantic Councils and is implemented through regulations at 50 CFR part 640. Both regulations are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). On October 15, 2008, NMFS published a notice of availability of Amendments 4 and 8 and requested public comments (73 FR 61015). On October 29, 2008, NMFS published the proposed rule to implement Amendments 4 and 8 and requested public comments (73 FR 64295). NMFS dwashington3 on PROD1PC60 with RULES SUPPLEMENTARY INFORMATION: VerDate Nov<24>2008 15:14 Jan 09, 2009 Jkt 217001 approved Amendments 4 and 8 on December 22, 2008. The rationale for the measures in Amendments 4 and 8 is provided in the amendments and in the preamble to the proposed rule and is not repeated here. Comments and Responses NMFS received four comments on the proposed rule from two individuals, a conservation organization,, and a governmental agency. Three of the comments supported all of the actions contained in the proposed rule. One comment opposed one aspect of the proposed rule. The opposing comment and NMFS’ response are provided below. Comment 1: One commenter opposed the wording of the prohibition of spiny lobster imports smaller than the proposed minimum size limits. The commenter believed the smaller 5– ounce (142–gram) tail weight minimum size limit applicable to the continental United States could undermine the effectiveness of the 6–ounce (170–gram) tail weight minimum size limit applicable to Puerto Rico and the U.S. Virgin Islands, i.e., that the smaller minimum size spiny lobster from the continental United States could legally be subsequently imported into Puerto Rico or the U.S. Virgin Islands. Response: This rule defines ‘‘import’’ to mean to land on, bring into, or introduce into Puerto Rico or the U.S. Virgin Islands, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the custom laws of the United States. This rule will prohibit any person from importing a spiny lobster, as defined by the rule, into Puerto Rico or the U.S. Virgin Islands that is less than the applicable 6–ounce (170–gram) tail weight minimum size limit. Thus, spiny lobster legally imported into the continental United States at a size less than a 6–ounce (170–gram) tail weight could not be legally imported into Puerto Rico or the U.S. Virgin Islands. Classification The Administrator, Southeast Region, NMFS, determined that Amendments 4 and 8 are necessary for the conservation and management of the spiny lobster fishery and are consistent with the Magnuson-Stevens Act, and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an FEIS for this amendment. A notice of availability for the FEIS was published on October 24, 2008 (73 FR 63470). A copy of the ROD PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 1149 is available from NMFS (see ADDRESSES). The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification follows: This rule will implement importation standards for spiny lobster, Panulirus argus. These standards will increase law enforcement’s ability to effectively prevent the importation of undersized spiny lobster, spiny lobster with eggs or from which eggs have been removed, and spiny lobster tail meat in any form other than a whole tail with the exoskeleton attached. The primary entities that are expected to be affected by this rule are businesses that import spiny lobster into the United States from countries: (1) Without legal minimum size standards or with legal minimum size standards that are less than those of this rule, (2) without legal prohibitions against harvesting female lobsters with eggs, detaching their eggs and/or removing pleopods (swimmerets), or (3) without prohibitions on marketing spiny lobster tail meat in a form other than a whole tail with the exoskeleton attached. Businesses that import spiny lobster are expected to be within the following industries: Fish and Seafood Merchant Wholesalers (NAICS 424460), Fish and Seafood Markets (NAICS 445220), Fish and Frozen Seafood Processing (NAICS 311712), Packaged Frozen Food Merchant Wholesalers (NAICS 424420), and Supermarkets and Other Grocery, Except Convenience, Stores (NAICS 445110). The Small Business Administration (SBA) has established that a business in one of these industries is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and if it has no more than 100 employees (NAICS 424460 and 424420), 500 employees (NAICS 311712), $6.5 million in annual receipts (NAICS 445220) or $25 million in annual receipts (NAICS 445110). According to Firm Size Data (www.sba.gov/advo/ research/data.html), in 2005 there were: 2,243 firms in NAICS 424460 and at least 1,935 of those firms were small businesses; 2,761 firms in NAICS 424420 and at least 2,113 of them were small businesses; 504 firms in NAICS 311712 and 482 of them were small businesses; 43,686 firms in NAICS 445110 and at least 35,511 of them were small businesses; and 2,118 firms in NAICS 445220 and at least 2,008 were small businesses. E:\FR\FM\12JAR1.SGM 12JAR1 dwashington3 on PROD1PC60 with RULES 1150 Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules and Regulations The U.S. is the largest importer of spiny lobster. From 2002 through 2007, U.S. rock lobster imports, which includes spiny lobster, originated from 17 countries that harvest spiny lobster (Brazil, Bahamas, Belize, Colombia, Costa Rica, Dominican Republic, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela), and of these countries, only Costa Rica, Guatemala, Panama, and Trinidad and Tobago have no harvest-size standards for spiny lobster. Of the 13 countries with known harvest-size standards, 7 have legal size standards for spiny lobster that meet or exceed the 5–ounce (142–gram) minimum tail weight specified by the rule that will apply anywhere subject to U.S. jurisdiction, except Puerto Rico and the U.S. Virgin Islands where a more restrictive 6–ounce (170–gram) minimum tail weight will apply. These countries are: The Bahamas, Colombia, Dominican Republic, Honduras, Nicaragua, Turks and Caicos Islands, and Venezuela. Three countries, Belize, Brazil, and Mexico, have standards similar to the minimum tail weight in this rule and the imports from these countries are expected to be subject to little or no impact. Thus, the 5–ounce (142–gram) minimum tail weight specified by this rule could affect small businesses that import frozen spiny lobster from the following countries of origin into areas subject to U.S. jurisdiction, excluding Puerto Rico or the U.S. Virgin Islands: Costa Rica, Guatemala, Guyana, Haiti, Jamaica, Panama, and Trinidad and Tobago. Among the 17 countries of origin that harvest spiny lobster, the following countries prohibit the harvest of berried (egg-bearing) lobsters: The Bahamas, Brazil, Belize, Colombia, Costa Rica, Dominican Republic, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, the Turks and Caicos Islands, and Venezuela. Hence, the prohibition against importation of berried lobsters will not affect legal imports from these countries. However, the prohibition against importation of berried lobsters could affect spiny lobster imports from Guatemala, Martinique and Trinidad and Tobago. Among the 17 countries of origin listed above, only the Bahamas and Belize have laws that prohibit the removal of pleopods. Consequently, the prohibition against importation of spiny lobster with their pleopods removed may affect imports from Brazil, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Martinique, Mexico, Nicaragua, VerDate Nov<24>2008 15:14 Jan 09, 2009 Jkt 217001 Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela. Most imports of spiny lobster into the U.S. (excluding Puerto Rico and the U.S. Virgin Islands) are parts of or whole lobster with the meat attached to the exoskeleton. Hence, the prohibition against imports of meat without the exoskeleton attached is expected to affect a small minority of imports. U.S. Customs data show there were no imports of rock lobster into the U.S. Virgin Islands from 2001 through 2007. Consequently, no small businesses that import spiny lobster into the U.S. Virgin Islands are expected to be affected by this rule. The same data show imports of rock lobster into Puerto Rico originated from The Bahamas, Dominican Republic and Honduras, which have legal size standards less than the minimum legal standards of Puerto Rico and the U.S. Virgin Islands. Both Puerto Rico and the U.S. Virgin Islands, however, prohibit the possession of spiny lobster with a carapace less than 3.5 inches (8.89 cm), which, in turn, prohibits the importation of lobsters that do not meet their size standard. Puerto Rico also prohibits possession of berried lobsters. Furthermore, data suggest little to none of the spiny lobster imports into Puerto Rico include meat with the exoskeleton removed. Therefore, because of existing restrictions and the absence of or minimal spiny lobster meat imports, this rule is not expected to affect small businesses that import spiny lobster into Puerto Rico. Despite existing regulations in the respective countries, the Western Central Atlantic Fishery Commission has reported that harvesting and trading of spiny lobster below the minimum legal size is a problem in Brazil, Nicaragua, Honduras, and the Bahamas. Frozen imports of rock lobster represent the large majority of rock lobster imports. Of the top four countries of origin of imported frozen rock lobster and other sea crawfish (HS 030611000) that harvest spiny lobster, approximately 32 percent of frozen rock lobster and other sea crawfish by value imported from 2002 through 2007 were from Brazil, followed by approximately 21 percent from the Bahamas, 18 percent from Honduras, and 16 percent from Nicaragua, for a total of about 86 percent of the frozen rock lobster imports from countries that harvest spiny lobster. The remaining countries of origin are Colombia (4 percent), Belize (3 percent), Mexico (3 percent), Jamaica (2 percent), Panama (1 percent), and Dominican Republic, Turks and Caicos Islands, Haiti, Costa Rica, Guatemala, Venezuela, Trinidad and PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Tobago, and Martinique, all under one percent. During the same period, 2002 through 2007, U.S. imports of non-frozen rock lobster and other sea crawfish (HS 030621000) from countries of origin that also harvest spiny lobster were Costa Rica, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Turks and Caicos Islands, and Venezuela. Because Honduras, Nicaragua, Turks and Caicos Islands, and Venezuela have minimum size standards that are equivalent to the size standards that will apply anywhere subject to the U.S. jurisdiction, except Puerto Rico or the U.S. Virgin Islands, this rule will affect small businesses that import non-frozen spiny lobster from the following countries of origin: Costa Rica, Guatemala, Jamaica, and Mexico. About 93 percent of the nonfrozen rock lobster imports by value from countries of origin that harvest spiny lobster are from Mexico, and increasingly these imports from Mexico have been live lobsters. Collectively, the imports of non-frozen rock lobster from these four countries of origin (Costa Rica, Guatemala, Jamaica, and Mexico) represent about 94 percent of the nonfrozen imports by value for countries that harvest spiny lobster. Customs data from January 22, 2004, through December 31, 2007, for frozen rock lobster imports from the top four countries of origin (Brazil, Bahamas, Honduras, and Nicaragua), indicate 98 businesses imported frozen rock lobster from these 4 countries. Thirteen of these businesses are foreign-based, and at least 3 are subsidiaries of much larger companies. Of the remaining 82 businesses, 45 of them imported frozen rock lobster in 1 year, followed by 17 businesses in 2 years, 10 in 3 years, and 10 in 4 years. The number of small businesses in any 1 year that imported frozen rock lobster from one or more of these countries ranged from 47 to 32 from 2004 through 2007, with an average of 38 annually. Therefore, 86 percent of the annual imports of frozen rock lobster from countries that harvest spiny lobster are brought in by an average of 38 small businesses. The information provided above supports a determination that this rule will not have a significant economic impact on a substantial number of small or large business entities. An Initial Regulatory Flexibility Act Analysis was prepared for the proposed rule, and the resultant analysis concluded the same finding of no significant economic impact. Public comment was solicited on this determination through the proposed rule. No challenge of this determination or other substantive issue was received through public comment E:\FR\FM\12JAR1.SGM 12JAR1 Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules and Regulations on the proposed rule and, thus, no changes were made in the rule. Accordingly, a final regulatory flexibility analysis was not required or prepared. Copies of the RIR and IRFA available (see ADDRESSES). List of Subjects 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. 50 CFR Part 640 Fisheries, Fishing, Incorporation by reference, Reporting and recordkeeping requirements. Dated: January 6, 2009. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 2. In § 622.1, a sentence is added to the end of paragraph (b) to read as follows: ■ Purpose and scope. * * * * * (b) * * * This part also governs importation of Caribbean spiny lobster into Puerto Rico or the U.S. Virgin Islands. * * * * * ■ 3. In § 622.2, the definition of ‘‘Import’’ is added in alphabetical order to read as follows: Definitions and acronyms. dwashington3 on PROD1PC60 with RULES * * * * Import means, for the purpose of §§ 622.1(b) and 622.50 only,— (1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, Puerto Rico or the U.S. Virgin Islands, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but (2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States. * * * * * VerDate Nov<24>2008 15:14 Jan 09, 2009 Jkt 217001 Prohibitions. * * * * (ii) Fail to comply with the Caribbean spiny lobster import prohibitions, as specified in § 622.50. ■ 6. Section 622.50 is added to subpart C to read as follows: § 622.50 Caribbean spiny lobster import prohibitions. ■ * (a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) through (f) of this section. * * * * * (f) Regulations pertaining to additional prohibitions on importation of spiny lobster into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands are set forth in part 640 of this chapter. ■ 5. In § 622.7, paragraph (ii) is added to read as follows: * For the reasons set out in the preamble, 50 CFR parts 622 and 640 are amended as follows: § 622.2 § 622.3 Relation to other laws and regulations. § 622.7 ■ § 622.1 4. In § 622.3, paragraph (a) is revised and paragraph (f) is added to read as follows: ■ (a) Minimum size limits for imported spiny lobster. There are two minimum size limits that apply to importation of spiny lobster into the United States -one that applies any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands. (1) No person may import a Caribbean spiny lobster with less than a 6–ounce (170–gram) tail weight into Puerto Rico or the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 6–ounce (170–gram) tail weight is defined as a tail that weighs 5.9–6.4 ounces (167–181 grams). If the documentation accompanying an imported Caribbean spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight, the person importing such Caribbean spiny lobster has the burden to prove that such Caribbean spiny lobster actually does satisfy the minimum tail-weight requirement or that such Caribbean spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such Caribbean spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the imported product itself does not satisfy the minimum tailweight requirement, the person importing such Caribbean spiny lobster PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 1151 has the burden to prove that such Caribbean spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such Caribbean spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the burden is satisfied such Caribbean spiny lobster will be considered to be in compliance with the minimum 6–ounce (170–gram) tailweight requirement. (2) See § 640.27 of this chapter regarding the minimum size limit that applies to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands. (b) Additional Caribbean spiny lobster import prohibitions—(1) Prohibition related to tail meat. No person may import into any place subject to the jurisdiction of the United States Caribbean spiny lobster tail meat that is not in whole tail form with the exoskeleton attached. (2) Prohibitions related to egg-bearing spiny lobster. No person may import into any place subject to the jurisdiction of the United States Caribbean spiny lobster with eggs attached or Caribbean spiny lobster from which eggs or pleopods (swimmerets) have been removed or stripped. Pleopods (swimmerets) are the first five pairs of abdominal appendages. PART 640—SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH ATLANTIC 7. The authority citation for part 640 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. 8. Section 640.1 is revised to read as follows: ■ § 640.1 Purpose and scope. (a) The purpose of this part is to implement the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic prepared by the South Atlantic and Gulf of Mexico Fishery Management Councils under the Magnuson-Stevens Act. (b) This part governs conservation and management of spiny lobster and slipper (Spanish) lobster in the EEZ in the Atlantic Ocean and Gulf of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/North Carolina border south and through the Gulf of Mexico. This part also governs importation of spiny lobster into any place subject to the jurisdiction of the United States. (c) An owner or operator of a vessel that has legally harvested spiny lobsters in the waters of a foreign nation and possesses spiny lobster, or separated E:\FR\FM\12JAR1.SGM 12JAR1 1152 Federal Register / Vol. 74, No. 7 / Monday, January 12, 2009 / Rules and Regulations tails, in the EEZ incidental to such foreign harvesting is exempt from the requirements of this part 640, except for § 640.27 with which such an owner or operator must comply, provided proof of lawful harvest in the waters of a foreign nation accompanies such lobsters or tails. ■ 9. In § 640.2, the definition for ‘‘Regional Director’’ is removed, the definition for ‘‘Spiny lobster’’ is revised, and definitions for ‘‘Import’’ and ‘‘Regional Administrator’’ are added in alphabetical order to read as follows: § 640.2 Definitions. * * * * * Import means— (1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but (2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States. * * * * * Regional Administrator (RA), for the purposes of this part, means the Administrator, Southeast Region, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701, or a designee. * * * * * Spiny lobster means the species Panulirus argus, or a part thereof. * * * * * ■ 10. In § 640.3, paragraph (a) is revised, and paragraph (c) is added to read as follows: § 640.3 Relation to other laws. dwashington3 on PROD1PC60 with RULES (a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) and (c) of this section. * * * * * (c) Regulations pertaining to additional prohibitions on importation of spiny lobster into Puerto Rico or the VerDate Nov<24>2008 21:30 Jan 09, 2009 Jkt 217001 U.S. Virgin Islands are set forth in part 622 of this chapter. ■ 11. In § 640.7, introductory text is revised, and paragraph (w) is added to read as follows: § 640.7 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following: * * * * * (w) Fail to comply with the spiny lobster import prohibitions, as specified in § 640.27. ■ 12. Section 640.8 is revised to read as follows: § 640.8 Facilitation of enforcement. See § 600.730 of this chapter. ■ 13. Section 640.9 is revised to read as follows: § 640.9 Penalties. See § 600.735 of this chapter. ■ 14. Section 640.27 is added to subpart B to read as follows: § 640.27 Spiny lobster import prohibitions. (a) Minimum size limits for imported spiny lobster. There are two minimum size limits that apply to importation of spiny lobster into the United States -one that applies any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands. (1) No person may import a spiny lobster with less than a 5–ounce (142– gram) tail weight into any place subject to the jurisdiction of the United States excluding Puerto Rico and the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 5–ounce (142–gram) tail weight is defined as a tail that weighs 4.2–5.4 ounces (119–153 grams). If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster actually does satisfy the minimum tailweight requirement or that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the burden is satisfied, such spiny lobster will be considered to be in compliance with the minimum 5–ounce (142–gram) tail-weight requirement. (2) See § 622.50 of this chapter regarding a more restrictive minimum size limit that applies to spiny lobster imported into Puerto Rico or the U.S. Virgin Islands. (b) Additional spiny lobster import prohibitions —(1) Prohibition related to tail meat. No person may import into any place subject to the jurisdiction of the United States spiny lobster tail meat that is not in whole tail form with the exoskeleton attached. (2) Prohibitions related to egg-bearing spiny lobster. No person may import into any place subject to the jurisdiction of the United States spiny lobster with eggs attached or spiny lobster from which eggs or pleopods (swimmerets) have been removed or stripped. Pleopods (swimmerets) are the first five pairs of abdominal appendages. PART 640 [AMENDED] 15. In addition to the amendments set forth above, in 50 CFR part 640, remove the words ‘‘Magnuson Act’’ and ‘‘Regional Director’’ and add in their places the words ‘‘Magnuson-Stevens Act’’ and ‘‘Regional Administrator’’, respectively, wherever they occur. ■ [FR Doc. E9–372 Filed 1–9–09; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\12JAR1.SGM 12JAR1

Agencies

[Federal Register Volume 74, Number 7 (Monday, January 12, 2009)]
[Rules and Regulations]
[Pages 1148-1152]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-372]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 640

[Docket No. 070717349-81641-03]
RIN 0648-AV61


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Amendments to the Spiny Lobster Fishery Management Plans for the 
Caribbean and Gulf of Mexico and South Atlantic

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final rule to implement Amendment 4 to the 
Fishery Management Plan for the Spiny Lobster Fishery of Puerto Rico 
and the U.S. Virgin Islands (Caribbean FMP) prepared by the Caribbean 
Fishery Management Council (Caribbean

[[Page 1149]]

Council) and Amendment 8 to the Fishery Management Plan for the Spiny 
Lobster Fishery of the Gulf of Mexico and South Atlantic (Gulf and 
South Atlantic FMP) prepared by the Gulf of Mexico and South Atlantic 
Fishery Management Councils (Gulf and South Atlantic Councils). This 
final rule establishes two minimum size restrictions for importation of 
spiny lobster into the United States -one applicable to spiny lobster 
imported into any place subject to the jurisdiction of the United 
States other than Puerto Rico or the U.S. Virgin Islands, and a more 
restrictive minimum size limit that applies to Puerto Rico and the U.S. 
Virgin Islands. In addition, this final rule prohibits importation of 
egg-bearing spiny lobsters and importation of spiny lobster tail meat 
that is not in whole tail form with the exoskeleton attached. The 
intended effect of this final rule is to enhance the conservation of 
the spiny lobster resource and improve effectiveness of law enforcement 
related to such conservation.

DATES: This final rule is effective February 11, 2009.

ADDRESSES: Copies of the Final Environmental Impact Statement (FEIS), 
Initial Regulatory Flexibility Analysis (IRFA), and the Record of 
Decision (ROD) may be obtained from Jason Rueter, Southeast Regional 
Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; 
telephone 727-824-5305; fax 727-824-5308; e-mail jason.rueter@noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jason Rueter, telephone 727-824-5305; 
fax 727-824-5308; e-mail jason.rueter@noaa.gov.

SUPPLEMENTARY INFORMATION: The spiny lobster fishery of the Caribbean 
is managed under the Caribbean FMP prepared by the Caribbean Council 
and is implemented through regulations at 50 CFR part 622. The spiny 
lobster fishery of the Gulf of Mexico and South Atlantic is managed 
under the Gulf and South Atlantic FMP prepared by the Gulf and South 
Atlantic Councils and is implemented through regulations at 50 CFR part 
640. Both regulations are implemented under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    On October 15, 2008, NMFS published a notice of availability of 
Amendments 4 and 8 and requested public comments (73 FR 61015). On 
October 29, 2008, NMFS published the proposed rule to implement 
Amendments 4 and 8 and requested public comments (73 FR 64295). NMFS 
approved Amendments 4 and 8 on December 22, 2008. The rationale for the 
measures in Amendments 4 and 8 is provided in the amendments and in the 
preamble to the proposed rule and is not repeated here.

Comments and Responses

    NMFS received four comments on the proposed rule from two 
individuals, a conservation organization,, and a governmental agency. 
Three of the comments supported all of the actions contained in the 
proposed rule. One comment opposed one aspect of the proposed rule. The 
opposing comment and NMFS' response are provided below.
    Comment 1: One commenter opposed the wording of the prohibition of 
spiny lobster imports smaller than the proposed minimum size limits. 
The commenter believed the smaller 5-ounce (142-gram) tail weight 
minimum size limit applicable to the continental United States could 
undermine the effectiveness of the 6-ounce (170-gram) tail weight 
minimum size limit applicable to Puerto Rico and the U.S. Virgin 
Islands, i.e., that the smaller minimum size spiny lobster from the 
continental United States could legally be subsequently imported into 
Puerto Rico or the U.S. Virgin Islands.
    Response: This rule defines ``import'' to mean to land on, bring 
into, or introduce into Puerto Rico or the U.S. Virgin Islands, whether 
or not such landing, bringing, or introduction constitutes an 
importation within the meaning of the custom laws of the United States. 
This rule will prohibit any person from importing a spiny lobster, as 
defined by the rule, into Puerto Rico or the U.S. Virgin Islands that 
is less than the applicable 6-ounce (170-gram) tail weight minimum size 
limit. Thus, spiny lobster legally imported into the continental United 
States at a size less than a 6-ounce (170-gram) tail weight could not 
be legally imported into Puerto Rico or the U.S. Virgin Islands.

Classification

    The Administrator, Southeast Region, NMFS, determined that 
Amendments 4 and 8 are necessary for the conservation and management of 
the spiny lobster fishery and are consistent with the Magnuson-Stevens 
Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FEIS for this amendment. A notice of availability 
for the FEIS was published on October 24, 2008 (73 FR 63470). A copy of 
the ROD is available from NMFS (see ADDRESSES).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule will not have a significant economic 
impact on a substantial number of small entities. The basis for this 
certification follows:
    This rule will implement importation standards for spiny lobster, 
Panulirus argus. These standards will increase law enforcement's 
ability to effectively prevent the importation of undersized spiny 
lobster, spiny lobster with eggs or from which eggs have been removed, 
and spiny lobster tail meat in any form other than a whole tail with 
the exoskeleton attached.
    The primary entities that are expected to be affected by this rule 
are businesses that import spiny lobster into the United States from 
countries: (1) Without legal minimum size standards or with legal 
minimum size standards that are less than those of this rule, (2) 
without legal prohibitions against harvesting female lobsters with 
eggs, detaching their eggs and/or removing pleopods (swimmerets), or 
(3) without prohibitions on marketing spiny lobster tail meat in a form 
other than a whole tail with the exoskeleton attached.
    Businesses that import spiny lobster are expected to be within the 
following industries: Fish and Seafood Merchant Wholesalers (NAICS 
424460), Fish and Seafood Markets (NAICS 445220), Fish and Frozen 
Seafood Processing (NAICS 311712), Packaged Frozen Food Merchant 
Wholesalers (NAICS 424420), and Supermarkets and Other Grocery, Except 
Convenience, Stores (NAICS 445110). The Small Business Administration 
(SBA) has established that a business in one of these industries is a 
small business if it is independently owned and operated, not dominant 
in its field of operation (including its affiliates), and if it has no 
more than 100 employees (NAICS 424460 and 424420), 500 employees (NAICS 
311712), $6.5 million in annual receipts (NAICS 445220) or $25 million 
in annual receipts (NAICS 445110). According to Firm Size Data 
(www.sba.gov/advo/research/data.html), in 2005 there were: 2,243 firms 
in NAICS 424460 and at least 1,935 of those firms were small 
businesses; 2,761 firms in NAICS 424420 and at least 2,113 of them were 
small businesses; 504 firms in NAICS 311712 and 482 of them were small 
businesses; 43,686 firms in NAICS 445110 and at least 35,511 of them 
were small businesses; and 2,118 firms in NAICS 445220 and at least 
2,008 were small businesses.

[[Page 1150]]

    The U.S. is the largest importer of spiny lobster. From 2002 
through 2007, U.S. rock lobster imports, which includes spiny lobster, 
originated from 17 countries that harvest spiny lobster (Brazil, 
Bahamas, Belize, Colombia, Costa Rica, Dominican Republic, Guatemala, 
Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad 
and Tobago, Turks and Caicos Islands, and Venezuela), and of these 
countries, only Costa Rica, Guatemala, Panama, and Trinidad and Tobago 
have no harvest-size standards for spiny lobster. Of the 13 countries 
with known harvest-size standards, 7 have legal size standards for 
spiny lobster that meet or exceed the 5-ounce (142-gram) minimum tail 
weight specified by the rule that will apply anywhere subject to U.S. 
jurisdiction, except Puerto Rico and the U.S. Virgin Islands where a 
more restrictive 6-ounce (170-gram) minimum tail weight will apply. 
These countries are: The Bahamas, Colombia, Dominican Republic, 
Honduras, Nicaragua, Turks and Caicos Islands, and Venezuela. Three 
countries, Belize, Brazil, and Mexico, have standards similar to the 
minimum tail weight in this rule and the imports from these countries 
are expected to be subject to little or no impact. Thus, the 5-ounce 
(142-gram) minimum tail weight specified by this rule could affect 
small businesses that import frozen spiny lobster from the following 
countries of origin into areas subject to U.S. jurisdiction, excluding 
Puerto Rico or the U.S. Virgin Islands: Costa Rica, Guatemala, Guyana, 
Haiti, Jamaica, Panama, and Trinidad and Tobago.
    Among the 17 countries of origin that harvest spiny lobster, the 
following countries prohibit the harvest of berried (egg-bearing) 
lobsters: The Bahamas, Brazil, Belize, Colombia, Costa Rica, Dominican 
Republic, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, the 
Turks and Caicos Islands, and Venezuela. Hence, the prohibition against 
importation of berried lobsters will not affect legal imports from 
these countries. However, the prohibition against importation of 
berried lobsters could affect spiny lobster imports from Guatemala, 
Martinique and Trinidad and Tobago. Among the 17 countries of origin 
listed above, only the Bahamas and Belize have laws that prohibit the 
removal of pleopods. Consequently, the prohibition against importation 
of spiny lobster with their pleopods removed may affect imports from 
Brazil, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, 
Honduras, Jamaica, Martinique, Mexico, Nicaragua, Panama, Trinidad and 
Tobago, Turks and Caicos Islands, and Venezuela.
    Most imports of spiny lobster into the U.S. (excluding Puerto Rico 
and the U.S. Virgin Islands) are parts of or whole lobster with the 
meat attached to the exoskeleton. Hence, the prohibition against 
imports of meat without the exoskeleton attached is expected to affect 
a small minority of imports.
    U.S. Customs data show there were no imports of rock lobster into 
the U.S. Virgin Islands from 2001 through 2007. Consequently, no small 
businesses that import spiny lobster into the U.S. Virgin Islands are 
expected to be affected by this rule. The same data show imports of 
rock lobster into Puerto Rico originated from The Bahamas, Dominican 
Republic and Honduras, which have legal size standards less than the 
minimum legal standards of Puerto Rico and the U.S. Virgin Islands. 
Both Puerto Rico and the U.S. Virgin Islands, however, prohibit the 
possession of spiny lobster with a carapace less than 3.5 inches (8.89 
cm), which, in turn, prohibits the importation of lobsters that do not 
meet their size standard. Puerto Rico also prohibits possession of 
berried lobsters. Furthermore, data suggest little to none of the spiny 
lobster imports into Puerto Rico include meat with the exoskeleton 
removed. Therefore, because of existing restrictions and the absence of 
or minimal spiny lobster meat imports, this rule is not expected to 
affect small businesses that import spiny lobster into Puerto Rico.
    Despite existing regulations in the respective countries, the 
Western Central Atlantic Fishery Commission has reported that 
harvesting and trading of spiny lobster below the minimum legal size is 
a problem in Brazil, Nicaragua, Honduras, and the Bahamas. Frozen 
imports of rock lobster represent the large majority of rock lobster 
imports. Of the top four countries of origin of imported frozen rock 
lobster and other sea crawfish (HS 030611000) that harvest spiny 
lobster, approximately 32 percent of frozen rock lobster and other sea 
crawfish by value imported from 2002 through 2007 were from Brazil, 
followed by approximately 21 percent from the Bahamas, 18 percent from 
Honduras, and 16 percent from Nicaragua, for a total of about 86 
percent of the frozen rock lobster imports from countries that harvest 
spiny lobster. The remaining countries of origin are Colombia (4 
percent), Belize (3 percent), Mexico (3 percent), Jamaica (2 percent), 
Panama (1 percent), and Dominican Republic, Turks and Caicos Islands, 
Haiti, Costa Rica, Guatemala, Venezuela, Trinidad and Tobago, and 
Martinique, all under one percent.
    During the same period, 2002 through 2007, U.S. imports of non-
frozen rock lobster and other sea crawfish (HS 030621000) from 
countries of origin that also harvest spiny lobster were Costa Rica, 
Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Turks and Caicos 
Islands, and Venezuela. Because Honduras, Nicaragua, Turks and Caicos 
Islands, and Venezuela have minimum size standards that are equivalent 
to the size standards that will apply anywhere subject to the U.S. 
jurisdiction, except Puerto Rico or the U.S. Virgin Islands, this rule 
will affect small businesses that import non-frozen spiny lobster from 
the following countries of origin: Costa Rica, Guatemala, Jamaica, and 
Mexico. About 93 percent of the non-frozen rock lobster imports by 
value from countries of origin that harvest spiny lobster are from 
Mexico, and increasingly these imports from Mexico have been live 
lobsters. Collectively, the imports of non-frozen rock lobster from 
these four countries of origin (Costa Rica, Guatemala, Jamaica, and 
Mexico) represent about 94 percent of the non-frozen imports by value 
for countries that harvest spiny lobster.
    Customs data from January 22, 2004, through December 31, 2007, for 
frozen rock lobster imports from the top four countries of origin 
(Brazil, Bahamas, Honduras, and Nicaragua), indicate 98 businesses 
imported frozen rock lobster from these 4 countries. Thirteen of these 
businesses are foreign-based, and at least 3 are subsidiaries of much 
larger companies. Of the remaining 82 businesses, 45 of them imported 
frozen rock lobster in 1 year, followed by 17 businesses in 2 years, 10 
in 3 years, and 10 in 4 years. The number of small businesses in any 1 
year that imported frozen rock lobster from one or more of these 
countries ranged from 47 to 32 from 2004 through 2007, with an average 
of 38 annually. Therefore, 86 percent of the annual imports of frozen 
rock lobster from countries that harvest spiny lobster are brought in 
by an average of 38 small businesses.
    The information provided above supports a determination that this 
rule will not have a significant economic impact on a substantial 
number of small or large business entities. An Initial Regulatory 
Flexibility Act Analysis was prepared for the proposed rule, and the 
resultant analysis concluded the same finding of no significant 
economic impact. Public comment was solicited on this determination 
through the proposed rule. No challenge of this determination or other 
substantive issue was received through public comment

[[Page 1151]]

on the proposed rule and, thus, no changes were made in the rule. 
Accordingly, a final regulatory flexibility analysis was not required 
or prepared. Copies of the RIR and IRFA available (see ADDRESSES).

List of Subjects

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

50 CFR Part 640

    Fisheries, Fishing, Incorporation by reference, Reporting and 
recordkeeping requirements.

    Dated: January 6, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 622 and 640 are 
amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.1, a sentence is added to the end of paragraph (b) to 
read as follows:


Sec.  622.1  Purpose and scope.

* * * * *
    (b) * * * This part also governs importation of Caribbean spiny 
lobster into Puerto Rico or the U.S. Virgin Islands.
* * * * *

0
3. In Sec.  622.2, the definition of ``Import'' is added in 
alphabetical order to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Import means, for the purpose of Sec. Sec.  622.1(b) and 622.50 
only,--
    (1) To land on, bring into, or introduce into, or attempt to land 
on, bring into, or introduce into, Puerto Rico or the U.S. Virgin 
Islands, whether or not such landing, bringing, or introduction 
constitutes an importation within the meaning of the customs laws of 
the United States; but
    (2) Does not include any activity described in paragraph (1) of 
this definition with respect to fish caught in the U.S. exclusive 
economic zone by a vessel of the United States.
* * * * *

0
4. In Sec.  622.3, paragraph (a) is revised and paragraph (f) is added 
to read as follows:


Sec.  622.3  Relation to other laws and regulations.

    (a) The relation of this part to other laws is set forth in Sec.  
600.705 of this chapter and paragraphs (b) through (f) of this section.
* * * * *
    (f) Regulations pertaining to additional prohibitions on 
importation of spiny lobster into any place subject to the jurisdiction 
of the United States other than Puerto Rico or the U.S. Virgin Islands 
are set forth in part 640 of this chapter.

0
5. In Sec.  622.7, paragraph (ii) is added to read as follows:


Sec.  622.7  Prohibitions.

* * * * *
    (ii) Fail to comply with the Caribbean spiny lobster import 
prohibitions, as specified in Sec.  622.50.

0
6. Section 622.50 is added to subpart C to read as follows:


Sec.  622.50  Caribbean spiny lobster import prohibitions.

    (a) Minimum size limits for imported spiny lobster. There are two 
minimum size limits that apply to importation of spiny lobster into the 
United States -one that applies any place subject to the jurisdiction 
of the United States other than Puerto Rico or the U.S. Virgin Islands, 
and a more restrictive minimum size limit that applies to Puerto Rico 
and the U.S. Virgin Islands.
    (1) No person may import a Caribbean spiny lobster with less than a 
6-ounce (170-gram) tail weight into Puerto Rico or the U.S. Virgin 
Islands. For the purposes of paragraph (a) of this section, a 6-ounce 
(170-gram) tail weight is defined as a tail that weighs 5.9-6.4 ounces 
(167-181 grams). If the documentation accompanying an imported 
Caribbean spiny lobster (including but not limited to product 
packaging, customs entry forms, bills of lading, brokerage forms, or 
commercial invoices) indicates that the product does not satisfy the 
minimum tail-weight, the person importing such Caribbean spiny lobster 
has the burden to prove that such Caribbean spiny lobster actually does 
satisfy the minimum tail-weight requirement or that such Caribbean 
spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or 
that such Caribbean spiny lobster has or had a carapace length of 3.5 
inches (8.89 cm) or greater. If the imported product itself does not 
satisfy the minimum tail-weight requirement, the person importing such 
Caribbean spiny lobster has the burden to prove that such Caribbean 
spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or 
that such Caribbean spiny lobster has or had a carapace length of 3.5 
inches (8.89 cm) or greater. If the burden is satisfied such Caribbean 
spiny lobster will be considered to be in compliance with the minimum 
6-ounce (170-gram) tail-weight requirement.
    (2) See Sec.  640.27 of this chapter regarding the minimum size 
limit that applies to spiny lobster imported into any place subject to 
the jurisdiction of the United States other than Puerto Rico or the 
U.S. Virgin Islands.
    (b) Additional Caribbean spiny lobster import prohibitions--(1) 
Prohibition related to tail meat. No person may import into any place 
subject to the jurisdiction of the United States Caribbean spiny 
lobster tail meat that is not in whole tail form with the exoskeleton 
attached.
    (2) Prohibitions related to egg-bearing spiny lobster. No person 
may import into any place subject to the jurisdiction of the United 
States Caribbean spiny lobster with eggs attached or Caribbean spiny 
lobster from which eggs or pleopods (swimmerets) have been removed or 
stripped. Pleopods (swimmerets) are the first five pairs of abdominal 
appendages.

PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH 
ATLANTIC

0
7. The authority citation for part 640 continues to read as follows:

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

0
8. Section 640.1 is revised to read as follows:


Sec.  640.1  Purpose and scope.

    (a) The purpose of this part is to implement the Fishery Management 
Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South 
Atlantic prepared by the South Atlantic and Gulf of Mexico Fishery 
Management Councils under the Magnuson-Stevens Act.
    (b) This part governs conservation and management of spiny lobster 
and slipper (Spanish) lobster in the EEZ in the Atlantic Ocean and Gulf 
of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/
North Carolina border south and through the Gulf of Mexico. This part 
also governs importation of spiny lobster into any place subject to the 
jurisdiction of the United States.
    (c) An owner or operator of a vessel that has legally harvested 
spiny lobsters in the waters of a foreign nation and possesses spiny 
lobster, or separated

[[Page 1152]]

tails, in the EEZ incidental to such foreign harvesting is exempt from 
the requirements of this part 640, except for Sec.  640.27 with which 
such an owner or operator must comply, provided proof of lawful harvest 
in the waters of a foreign nation accompanies such lobsters or tails.

0
9. In Sec.  640.2, the definition for ``Regional Director'' is removed, 
the definition for ``Spiny lobster'' is revised, and definitions for 
``Import'' and ``Regional Administrator'' are added in alphabetical 
order to read as follows:


Sec.  640.2  Definitions.

* * * * *
    Import means--
    (1) To land on, bring into, or introduce into, or attempt to land 
on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the meaning 
of the customs laws of the United States; but
    (2) Does not include any activity described in paragraph (1) of 
this definition with respect to fish caught in the U.S. exclusive 
economic zone by a vessel of the United States.
* * * * *
    Regional Administrator (RA), for the purposes of this part, means 
the Administrator, Southeast Region, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701, or a designee.
* * * * *
    Spiny lobster means the species Panulirus argus, or a part thereof.
* * * * *

0
10. In Sec.  640.3, paragraph (a) is revised, and paragraph (c) is 
added to read as follows:


Sec.  640.3  Relation to other laws.

    (a) The relation of this part to other laws is set forth in Sec.  
600.705 of this chapter and paragraphs (b) and (c) of this section.
* * * * *
    (c) Regulations pertaining to additional prohibitions on 
importation of spiny lobster into Puerto Rico or the U.S. Virgin 
Islands are set forth in part 622 of this chapter.

0
11. In Sec.  640.7, introductory text is revised, and paragraph (w) is 
added to read as follows:


Sec.  640.7  Prohibitions.

    In addition to the general prohibitions specified in Sec.  600.725 
of this chapter, it is unlawful for any person to do any of the 
following:
* * * * *
    (w) Fail to comply with the spiny lobster import prohibitions, as 
specified in Sec.  640.27.

0
12. Section 640.8 is revised to read as follows:


Sec.  640.8  Facilitation of enforcement.

    See Sec.  600.730 of this chapter.

0
13. Section 640.9 is revised to read as follows:


Sec.  640.9  Penalties.

    See Sec.  600.735 of this chapter.

0
14. Section 640.27 is added to subpart B to read as follows:


Sec.  640.27  Spiny lobster import prohibitions.

    (a) Minimum size limits for imported spiny lobster. There are two 
minimum size limits that apply to importation of spiny lobster into the 
United States -one that applies any place subject to the jurisdiction 
of the United States other than Puerto Rico or the U.S. Virgin Islands, 
and a more restrictive minimum size limit that applies to Puerto Rico 
and the U.S. Virgin Islands.
    (1) No person may import a spiny lobster with less than a 5-ounce 
(142-gram) tail weight into any place subject to the jurisdiction of 
the United States excluding Puerto Rico and the U.S. Virgin Islands. 
For the purposes of paragraph (a) of this section, a 5-ounce (142-gram) 
tail weight is defined as a tail that weighs 4.2-5.4 ounces (119-153 
grams). If the documentation accompanying an imported spiny lobster 
(including but not limited to product packaging, customs entry forms, 
bills of lading, brokerage forms, or commercial invoices) indicates 
that the product does not satisfy the minimum tail-weight requirement, 
the person importing such spiny lobster has the burden to prove that 
such spiny lobster actually does satisfy the minimum tail-weight 
requirement or that such spiny lobster has a tail length of 5.5 inches 
(13.97 cm) or greater or that such spiny lobster has or had a carapace 
length of greater than 3.0 inches (7.62 cm). If the imported product 
itself does not satisfy the minimum tail-weight requirement, the person 
importing such spiny lobster has the burden to prove that such spiny 
lobster has a tail length of 5.5 inches (13.97 cm) or greater or that 
such spiny lobster has or had a carapace length of greater than 3.0 
inches (7.62 cm). If the burden is satisfied, such spiny lobster will 
be considered to be in compliance with the minimum 5-ounce (142-gram) 
tail-weight requirement.
    (2) See Sec.  622.50 of this chapter regarding a more restrictive 
minimum size limit that applies to spiny lobster imported into Puerto 
Rico or the U.S. Virgin Islands.
    (b) Additional spiny lobster import prohibitions --(1) Prohibition 
related to tail meat. No person may import into any place subject to 
the jurisdiction of the United States spiny lobster tail meat that is 
not in whole tail form with the exoskeleton attached.
    (2) Prohibitions related to egg-bearing spiny lobster. No person 
may import into any place subject to the jurisdiction of the United 
States spiny lobster with eggs attached or spiny lobster from which 
eggs or pleopods (swimmerets) have been removed or stripped. Pleopods 
(swimmerets) are the first five pairs of abdominal appendages.

PART 640 [AMENDED]

0
15. In addition to the amendments set forth above, in 50 CFR part 640, 
remove the words ``Magnuson Act'' and ``Regional Director'' and add in 
their places the words ``Magnuson-Stevens Act'' and ``Regional 
Administrator'', respectively, wherever they occur.

[FR Doc. E9-372 Filed 1-9-09; 8:45 am]
BILLING CODE 3510-22-S