[Federal Register Volume 64, Number 12 (Wednesday, January 20, 1999)]
[Proposed Rules]
[Pages 3154-3194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1065]
[[Page 3153]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
50 CFR Part 285 et al.
Atlantic Highly Migratory Species (HMS) Fisheries, Fishery Management
Plan, Plan Amendment, and Consolidation of Regulations; Proposed Rule
Federal Register / Vol. 64, No. 12 / Wednesday, January 20, 1999 /
Proposed Rules
[[Page 3154]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 285, 600, 630, 635, 644, and 678
[Docket No. 981216308-8308-01; I.D. 071698B]
RIN 0648-AJ67
Atlantic Highly Migratory Species (HMS) Fisheries; Fishery
Management Plan, Plan Amendment, and Consolidation of Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement the draft Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP),
and draft Amendment 1 to the Atlantic Billfish Fishery Management Plan
(Billfish FMP). The proposed regulations would address requirements of
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), implement recommendations of the International Commission
for the Conservation of Atlantic Tunas (ICCAT) as required by the
Atlantic Tunas Convention Act (ATCA), and consolidate existing
regulations, organized by species, for the conservation and management
of highly migratory species (HMS) into one part of the Code of Federal
Regulations (CFR), organized by theme, as part of the President's
Regulatory Reinvention Initiative.
NMFS previously published a Notice of Availability for the HMS FMP
and for Amendment 1 to the Billfish FMP. NMFS extends the comment
period for the HMS FMP and reopens the comment period for the Billfish
FMP to coincide with the proposed rule. NMFS will announce public
hearings to receive comments from fishery participants and other
members of the public regarding this proposed rule, the draft HMS FMP,
Amendment 1 to the Billfish FMP and associated supporting documents in
a separate Federal Register document. NMFS requests comments
specifically on the revised Initial Regulatory Flexibility Analysis
(IRFA), updated since publication of the Draft HMS FMP, and the IRFA
associated with the billfish management measures.
DATES: Comments on the proposed rule, the HMS FMP, Amendment 1 to the
Billfish FMP and/or supporting documents must be received by March 4,
1999. Public hearings on this proposed rule will be held in February
1999 and will be announced in a separate Federal Register document.
ADDRESSES: To submit comments on, or to obtain copies of, the draft HMS
FMP, the draft Amendment 1 to the Billfish FMP, the proposed rule and
supporting documents, including the revised IRFA, or a summary of these
items, contact Rebecca Lent, Chief, Highly Migratory Species Management
Division, Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West
Highway, Silver Spring, MD 20910-3282, phone (301) 713-2347, fax (301)
713-1917. Send comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule to Rebecca Lent and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Pat Scida regarding tuna issues at
(978) 281-9260; Jill Stevenson regarding swordfish issues at (301) 713-
2347; Margo Schulze regarding shark issues at (301) 713-2347; Buck
Sutter regarding billfish issues at (727) 570-5447; Karyl Brewster-
Geisz regarding limited access at (301) 713-2347; and Chris Rogers
regarding the regulatory consolidation at (301) 713-2347.
SUPPLEMENTARY INFORMATION: Atlantic HMS included in the HMS FMP are
Atlantic swordfish (Xiphias gladius), west Atlantic bluefin tuna
(Thunnus thynnus), Atlantic yellowfin tuna (T. albacares), Atlantic
bigeye tuna (T. obesus), North Atlantic albacore tuna (T. alalunga),
west Atlantic skipjack tuna (Katsuwonus pelamis), 39 species of
Atlantic sharks grouped into three management sub-groups. Four species
of Atlantic billfish other than swordfish are also Atlantic HMS, and
they are included in the Billfish FMP: Atlantic blue marlin (Makaira
nigricans), Atlantic white marlin (Tetrapturus albidus), west Atlantic
sailfish (Istiophorus platypterus), and west Atlantic spearfish (T.
pfluegeri). U.S. fishing vessels, both commercial and recreational,
fish for Atlantic HMS in the North and South Atlantic Ocean, Gulf of
Mexico, and Caribbean Sea. The fisheries for Atlantic tunas, swordfish,
sharks, and billfish each have some unique characteristics, but they
overlap considerably in participants, gear usage, and species pursued.
Atlantic HMS migrate widely throughout the North and South Atlantic
Ocean, including the Mediterranean Sea, the Gulf of Mexico, and the
Caribbean Sea, requiring cooperative management not only among
different user groups within the United States, but also between the
United States and other fishing nations. In some cases, the United
States accounts for only a small portion of the total Atlantic-wide
mortality for a species, and unilateral management action could not be
expected to have significant effect on the status of the stock. In
other cases, the United States accounts for a larger portion of
Atlantic-wide fishing mortality, giving it more influence on total
fishing mortality levels. In all cases, however, the international
component of the fishery is an important consideration in developing
and implementing domestic management measures.
To meet requirements of the Magnuson-Stevens Act, NMFS prepared an
FMP for Atlantic tunas, swordfish and sharks and an amendment to the
Billfish FMP. NMFS published a Notice of Availability of the Draft
Amendment 1 to the Billfish FMP on October 9, 1998 (63 FR 54433) with a
comment period ending on January 7, 1999 and a Notice of Availability
of the Draft HMS FMP on October 26, 1998 (63 FR 57093) with a comment
period ending on January 25, 1999. NMFS extends the comment periods for
these documents to coincide with the comment period on this proposed
rule. Therefore, comments are invited and may address the HMS FMP,
Amendment 1 to the Billfish FMP, the supporting documents, the proposed
rule or all of these items, but must be received by March 4, 1999 to be
considered in the decisions on the HMS FMP, Amendment 1 to the Billfish
FMP and the final rule. All comments received by March 4, 1999, whether
specifically directed to any of the documents or to the proposed rule,
will be considered in the decisions on the final documents and the
final rule.
The following is an outline of the information presented in the
preamble to this proposed rule:
I. Background
A. Regulatory Consolidation
B. Fishery Management Plans
C. The HMS Management Process
II. Management Strategy
A. Problems and Objectives
B. Management Measures
III. Quotas and Monitoring/Adjustment Procedures
A. Quotas
B. Accounting for All Sources of Fishing Mortality
C. Quota Adjustment Procedures
IV. Restrictions on Catch and Retention
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V. Minimize Bycatch and Bycatch Mortality
A. Marine Mammal Bycatch
B. Finfish Bycatch
VI. Improve Data Collection and Enforcement
VII. Administrative and Procedural Changes
VIII. Limited Access Program
A. Permit Categories
B. Eligibility Criteria
C. Permit Process
D. Transfer of Permits
E. Vessel Upgrading
F. Ownership Limits
IX. Essential Fish Habitat (EFH)
X. Minor Administrative and Technical Changes
XI. Applicability of Regulations in State Waters
I. Background
A. Regulatory Consolidation
On November 6, 1996, NMFS published a proposed rule consolidating
fishery regulations pertaining to Atlantic HMS (61 FR 57361).
Background information about the need for the consolidation appeared in
the preamble to that proposed rule and is not repeated here. Since that
proposed rule was issued, several significant changes to HMS
regulations were made necessary by new legislative requirements, ICCAT
recommendations, and several domestic management initiatives including
limited access systems for the Atlantic swordfish and shark fisheries.
Considering comments submitted to date, NMFS elected to re-propose the
technical and administrative changes from the consolidation in the
context of the HMS FMP implementation. This proposed rule carries out
the President's directive on regulatory reform with respect to existing
regulations for the conservation and management of Atlantic HMS in the
exclusive economic zone (EEZ), and, as applicable, in regulatory areas
beyond the U.S. EEZ.
Regulations pertaining to management of Atlantic HMS are currently
found in species-specific sections of the Code of Federal Regulations
(50 CFR parts: 285--Atlantic Tunas Fisheries, 630--Atlantic Swordfish
Fishery, 644-Atlantic Billfishes, and 678--Atlantic Sharks). These
regulations are proposed to be consolidated into a new part: 635-
Atlantic Highly Migratory Species. The intent is to make the
regulations more concise, clearer, and easier to use than the previous
regulations.
B. Fishery Management Plans
Atlantic HMS that transit the U.S. EEZ are managed under the
authority of the Magnuson-Stevens Act and, in the case of tunas,
swordfish, and billfish, also under ATCA. ATCA authorizes the Secretary
of Commerce to implement the binding recommendations of ICCAT, to which
the United States is a contracting party. ICCAT recommends harvest
levels, minimum sizes, and other management measures for implementation
by its 25 contracting parties. Through its scientific body, ICCAT
conducts stock assessments and other Atlantic HMS-related research. It
is the intent of the HMS FMP and Amendment 1 to the Billfish FMP to
issue regulations for HMS fishery management under the dual authority
of ATCA and the Magnuson-Stevens Act, whenever possible. In some cases,
such as for sharks, management authority is limited to the Magnuson-
Stevens Act; in other cases, such as for South Atlantic swordfish and
southern albacore, the Magnuson-Stevens Act does not apply because the
stock does not venture into the U.S. EEZ.
The Magnuson-Stevens Act is the primary legislation affecting
domestic management of fisheries in the U.S. EEZ. Further guidance on
interactions of HMS fisheries with protected resources is given under
the Endangered Species Act (ESA) and the Marine Mammal Protection Act
(MMPA). Provisions of the Magnuson-Stevens Act allow NMFS and the eight
regional fishery management councils (the Councils) to develop FMPs
that are implemented through regulations to manage the Nation's fishery
resources. Generally, FMPs contain objectives for each fishery and
guidance on allowable gear types in the fisheries; acceptable harvest
levels; restrictions on the time, area, or manner in which fish may be
caught; and consideration of how the fishery affects other parts of the
marine ecosystem or coastal communities, including essential fish
habitat (EFH), non-target finfish, marine mammals, sea turtles, and sea
birds.
FMPs and their implementing regulations must be consistent with
each of the 10 national standards set forth in the Magnuson-Stevens
Act, as well as with the Act's general requirements for the contents of
FMPs and the Act's requirement that overfished fisheries be rebuilt.
Additionally, FMPs to manage HMS and their implementing regulations
must be consistent with section 304(g) of the Magnuson-Stevens Act,
which pertains specifically to Atlantic HMS and requires NMFS to
consult with the Councils and advisory panels (APs); minimize
disadvantages resulting from implementation of domestic conservation
and management measures to U.S. fishermen relative to international
fisheries to the extent practicable; provide a reasonable opportunity
for fishermen to harvest an allocation, quota, or fishing mortality
level allocated to the United States under an international agreement;
review, on a continuing basis, and revise as appropriate measures
included in this plan; and diligently pursue, through international
entities, comparable international management measures. Regarding HMS
management, NMFS is also required to ensure that management measures
promote international conservation; consider traditional fishing
patterns of the U.S. fleet; allocate fishing privileges fairly and
equitably; and promote, to the extent practicable, research programs
that include tagging and release of HMS.
Currently, Atlantic billfish, swordfish, and sharks are managed
under FMPs developed and implemented under the authority of the
Magnuson-Stevens Act. No Magnuson-Stevens Act FMP has previously been
developed for Atlantic tunas, although regulations have been developed
under ATCA with consistency with the Magnuson-Stevens Act in mind. The
draft HMS FMP integrates management of Atlantic tunas, swordfish, and
sharks by combining management measures for the three species groups
into one FMP. NMFS elected to combine the FMP for tunas, swordfish, and
sharks in recognition of the multispecies nature of these fisheries and
to promote better integration of HMS management. A single management
plan for these species will help ease the regulatory burden on user
groups and is consistent with the ecosystem-oriented provisions of the
National Environmental Policy Act and with the Presidential Regulatory
Reform Initiative.
The U.S. fishery for Atlantic billfish is a recreational fishery
only (no commercial retention is allowed) and, given its unique
characteristics, will continue to be managed separately under the FMP
for Atlantic Billfish. However, NMFS recognizes the multispecies nature
of all HMS fisheries and the need for well-integrated management of
fishing activity for all HMS. Wherever possible, management objectives
and practices are integrated, and analyses have been conducted with
consideration of the overlapping participation, target species, and
habitats of these multispecies fisheries. The HMS FMP and Amendment 1
to the Billfish FMP overlap in certain preferred measures due to the
multispecies nature of the recreational and pelagic longline fisheries
and the need for combined data collection in all
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HMS fisheries. This proposed rule would implement both the integrated
HMS FMP and Amendment 1 to the Billfish FMP.
C. The HMS Management Process
The HMS Management Process encompasses administrative procedures
that NMFS follows in developing FMPs and implementing regulations.
Congress gave the Secretary of Commerce (Secretary) management
authority for Atlantic HMS in 1990, following many years of joint
management for several of these species by the five Atlantic, Gulf, and
Caribbean Councils and for Atlantic tunas under ICCAT. The Secretary
has delegated management of Atlantic HMS to the Administrator of NOAA,
who delegated it to the Assistant Administrator for Fisheries, NMFS
(AA). Within NMFS, daily responsibility for management of Atlantic HMS
fisheries rests with the Office of Sustainable Fisheries, and is
carried out by the HMS Management Division.
The development of an FMP or plan amendment commences with the
preparation of a document that describes issues in the fisheries and
states options for management (the scoping document). The October 1997
scoping document, which covered all HMS species, was used as the basis
for discussion at 21 public scoping meetings that were held throughout
the management region in October and November 1997 (62 FR 54035,
October 17, 1997). Public comments at scoping meetings and during the
accompanying comment period were reviewed and considered in preparation
of draft HMS FMP documents.
The HMS AP and the Billfish AP were established pursuant to the
Magnuson-Stevens Act (section 302 (g)(1)). The HMS AP advised NMFS
throughout the development of the scoping document and of the draft
FMP. The HMS AP is composed of representatives of the commercial,
recreational, environmental, and scientific sectors, as well as one
representative from each of the five fishery management councils that
work with Atlantic HMS and the Chair, or the Chair's designee, of the
U.S. ICCAT Advisory Committee. Each of the Atlantic and Gulf Coast
states, as well as the Virgin Islands and Puerto Rico, may send a non-
voting representative to AP meetings to participate in the process. The
Billfish AP is composed of members of the recreational, commercial,
environmental, and scientific communities, as well as fishery
management council representatives and non-voting state members. AP
meetings are open to the public, and NMFS rotates meeting locations
throughout the management region to provide fishery participants a
reasonable opportunity to attend meetings. For all but the final
meetings, the HMS and Billfish APs convened at the same locations with
agendas arranged to allow joint discussion of overlapping issues.
The HMS AP met six times in development of the draft HMS FMP. At
the first meeting, in October 1997, members of both APs provided input
on the draft scoping document. The document was extensively revised
following the APs' input before it was distributed to the general
public (62 FR 54035, October 17, 1997). The second AP meeting, held in
Baltimore, MD, in January 1998, focused on Atlantic bluefin tuna (BFT)
issues, specifically, on quota allocations and effort controls for the
HMS AP. The Billfish AP discussed the implementation of an ICCAT
recommendation to reduce billfish landings by 25 percent by 1999, and
NMFS subsequently implemented measures through an interim rule under
the authority of the Magnuson-Stevens Act. At its third meeting, held
in Tampa, FL, in March 1998, the HMS AP and the Billfish AP advised
NMFS on criteria that should be considered in overfishing definitions,
and developing rebuilding programs for overfished HMS.
The AP reviewed draft sections of the HMS FMP at its fourth meeting
in Hauppauge, NY, in May 1998. Draft sections included issues and
objectives for management, the management unit, alternatives to rebuild
overfished fisheries, and descriptions of fishing activities. In July
1998, the Billfish AP and the HMS AP met in Alexandria, VA, to discuss
measures that would minimize bycatch and bycatch mortality in all HMS
fisheries, and the HMS AP met separately to discuss shark issues. The
HMS AP reviewed the pre-draft HMS FMP at its sixth meeting, held August
27-28, 1998, in Warwick, RI. The Billfish AP reviewed the pre-draft
Amendment 1 to the Billfish FMP at its sixth meeting, held September 2-
3, 1998, in St. Croix, U.S. Virgin Islands. These draft documents had
been extensively revised following each AP meeting.
Restrictions on the billfish fishery to implement the ICCAT
recommendation were discussed in several AP meetings and resulted in an
interim rule (63 FR 14030, March 24, 1998), which established
tournament registration and reporting requirements, and increased
minimum sizes for blue and white marlin. An extension of that interim
rule followed (63 FR 51859, September 29, 1998), which further
increased the blue marlin minimum size and established a retention
limit of one marlin per vessel per day (adjustable by the AA). An
amendment to that rule removed the measure that would allow the AA to
reduce the retention limit to zero. NMFS also proposes these measures
as part of this rule to implement Amendment 1 to the Billfish FMP.
This proposed rule would implement the preferred alternatives
identified in the draft HMS FMP (63 FR 57093, October 26, 1998) and
Amendment One to the Billfish FMP (63 FR 54433, October, 9, 1998). NMFS
will hold a series of public hearings to solicit comments on this
proposed rule and the FMP documents. The purpose of the public hearings
is to provide NMFS with additional information to evaluate impacts and
the effectiveness of the proposed measures. NMFS has updated the
economic analyses related to the HMS FMP and Amendment 1 to the
Billfish FMP since their publication to include updated analyses of
limited access under more recent eligibility criteria, and analyses of
billfish measures, respectively. NMFS specifically requests comments on
these updated analyses. During the comment period, NMFS will hold
additional HMS and Billfish AP meetings.
II. Management Strategy
The regulations contained in this proposed rule would completely
replace current regulations for all Atlantic HMS, including billfish.
Thus, NMFS intends that the regulatory text proposed here restates all
existing regulations that it intends to retain. In addition to the
consolidation of current regulations, NMFS proposes numerous regulatory
changes to incorporate new elements of the HMS FMP and Amendment 1 to
the Billfish FMP (e.g., rebuilding overfished stocks) and to achieve
consistency in the HMS regulations. NMFS has performed a thorough
review of the restructured regulatory text to ensure that all changes
are noted. However, given the scope of the restructuring, certain
changes may not be specifically identified and explained, or unintended
changes may have been made. Identification of, and comments on any such
inadvertent or unexplained changes are specifically invited.
A. Problems and Objectives
Amendment 1 to the Atlantic Billfish FMP identifies several
management problems affecting billfish stocks: (1) Overfished blue and
white marlin stocks, (2) excess fishing mortality
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caused by bycatch and discards, (3) compliance with ICCAT
recommendation to reduce marlin landings, (4) need for improved data
collection, and (5) decreased or unknown stock levels of sailfish and
longbill spearfish.
Several management objectives are presented in draft Amendment 1 to
the Billfish FMP to address these problems: (1) Prevent overfishing,
(2) rebuild stocks and monitor all fishing mortality from directed and
incidental catch, (3) promote comparable international conservation,
(4) minimize bycatch and bycatch mortality to the extent practicable,
(5) coordinate multispecies fisheries, (6) improve data collection, (7)
promote live release of billfish, (8) protect EFH, (9) manage for
optimum yield, and (10) minimize adverse impacts on recreational and
commercial activities. Amendment 1 would add these to the existing
objectives of the Billfish FMP.
The following management problems are identified in the HMS FMP:
(1) Overfished populations of HMS, (2) excess fishing mortality caused
by bycatch and discards, (3) inconsistencies and inadequacies in
international compliance with conservation and management measures, (4)
the need to assure optimal data collection, (5) the need for integrated
and streamlined domestic HMS management, and (6) overcapitalization.
The draft HMS FMP lists several management objectives for the
fisheries for Atlantic tunas, swordfish, and sharks, paraphrased here:
(1) Prevent overfishing, (2) rebuild stocks, (3) minimize adverse
impacts of rebuilding to the extent practicable, (4) control all
components of fishing mortality, (5) minimize bycatch and bycatch
mortality to the extent practicable, (6) establish a foundation for
international negotiation on conservation and management, (7)
facilitate compliance with ICCAT recommendations, (8) improve data
collection, (9) simplify and streamline HMS management, (10) manage for
continuing optimum yield, (11) protect areas identified as EFH for
tunas, swordfish, and sharks, and (12) reduce overcapitalization in the
Atlantic swordfish and shark commercial fisheries. Conservation and
management measures to address these objectives follow.
B. Management Measures
To address these objectives, NMFS proposes domestic management
programs for all HMS. Although the management measures are domestic
actions, stock status and rebuilding programs are designed to be
implemented stock-wide. NMFS also suggests specific measures to be
addressed internationally by ICCAT. These measures include proposed
overfishing status determination criteria, designation of biomass and
fishing mortality targets, and a suite of proposed management
alternatives that are intended to reduce fishing mortality on
overfished species, and to minimize bycatch and bycatch mortality, to
the extent practicable.
III. Quotas and Monitoring/Adjustment Procedures
A. Quotas
Quotas for HMS are implemented and allocated among fishing
categories and seasons by the AA. The Director of the Office of
Sustainable Fisheries has been delegated the authority to make inseason
adjustments among categories and adjustments to each period's quota
based on overharvest or underharvest during the previous year.
NMFS proposes rebuilding programs for North Atlantic swordfish in
the draft HMS FMP. However, NMFS cannot implement management measures
that effectively raise or lower the quota the United States receives
from ICCAT. Therefore, this proposed rule incorporates existing U.S.
quotas for swordfish stocks. The draft HMS FMP did not identify a
preferred rebuilding alternative for bluefin tuna. In the future, the
United States may seek to negotiate quotas and other measures that
contribute to rebuilding of swordfish and BFT through the international
process, including counting dead discards of swordfish against the
quota. NMFS proposes that the existing quotas established for North
Atlantic swordfish (through 1999) and South Atlantic swordfish (through
2000) under ATCA remain in effect pending new stock assessments (in
1999) and further recommendations of ICCAT.
Based on the results of the 1998 ICCAT meeting, and recommendations
regarding BFT, NMFS will prepare an addendum to the HMS FMP. The
addendum will specifically address BFT quota and discard issues
addressed under ICCAT's recommendation to establish a rebuilding
program for west Atlantic BFT. It is NMFS' intent to publish this
addendum before the end of 1998 or shortly thereafter. For the large
coastal shark (LCS) management unit, NMFS is proposing to separate the
LCS unit into two subgroups based on the presence or absence of a mid-
dorsal ridge, which is easily identified after the carcass has been
dressed. NMFS proposes to use this characteristic to separate the LCS
into a ``ridgeback'' subgroup (which would include sandbar and silky
sharks) and a ``non-ridgeback'' group (which would include blacktip,
spinner, bull, tiger, nurse, lemon, narrowtooth, great hammerhead,
scalloped hammerhead, and smooth hammerhead sharks) and to establish
separate quotas and management measures for the two subgroups.
NMFS is also proposing to prohibit possession of certain shark
species that are uncommon in U.S. waters or are seriously depleted
(note discussion under Retention Limits). To reduce mortality on
ridgeback LCS, NMFS also proposes to establish a minimum size for
retention of ridgeback LCS of 54 inches (137 cm) fork length. Observer
data indicate that the primary ridgeback LCS, the sandbar shark,
segregates by size and depth. Therefore, NMFS expects a reduction in
fishing mortality since fishermen should be able to target larger
sandbar sharks. Because of the expectation that this minimum size for
ridgeback sharks (in combination with other management measures) will
reduce ridgeback LCS harvests by the amount necessary to rebuild this
subgroup, NMFS proposes to maintain the current ridgeback LCS harvest
levels of 642 mt dressed weight (dw).
NMFS is not proposing to establish a minimum size for non-ridgeback
sharks due to indications that the primary non-ridgeback LCS, the
blacktip shark, does not segregate by size or depth and that a minimum
size would not reduce fishing mortality. To reduce mortality for these
species, NMFS is proposing to lower the commercial quota for non-
ridgeback LCS by 66 percent from current catch levels to 218 mt dw.
For the pelagic shark management unit, NMFS is proposing to
establish a separate porbeagle shark quota of 30 mt dw based on
historical harvest levels. NMFS also proposes to subtract that quota
from the pelagic shark quota, resulting in a 550 mt dw quota for
pelagic sharks, other than porbeagle. This measure is intended to
establish separate controls for porbeagle sharks because this species
is highly susceptible to overfishing. NMFS is also proposing to
prohibit possession of blue sharks and to establish a quota for blue
shark dead discards of 273 mt dw, based on a 10-year dead discard
average. NMFS is proposing to reduce the pelagic shark quota each year
by any overharvest of the blue shark dead discard quota occurring in
the previous year. The intent of these measures is to address concerns
regarding the high numbers of blue sharks discarded dead by longline
fisheries and to create an incentive to reduce blue shark dead
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discards, while mitigating the potential adverse impacts of counting
dead discards against the available quota.
For the small coastal shark (SCS) management unit, NMFS is
proposing to cap the commercial quota at 359 mt dw, which is 10 percent
higher than 1997 harvest levels. This measure is intended to allow for
limited fishery expansion but would eliminate the potential for
excessive growth of this fishery. This measure is also proposed because
NMFS believes that SCS landing statistics may substantially
underestimate SCS mortality. This is a result of unreported catches of
SCS because they are used for bait and thus are not always landed.
In November 1997, ICCAT adopted a recommendation with several
measures to address billfish resources throughout the Atlantic Ocean,
including reduction of Atlantic blue marlin and Atlantic white marlin
landings by at least 25 percent from 1996 levels, starting in 1998, to
be accomplished by the end of 1999. Reductions will be assessed in 2000
based on landing data through 1999. Delaying the stock assessment until
2000 (per the 1998 ICCAT recommendation) will allow preliminary
evaluation of the effectiveness of landing reductions for over-
exploited Atlantic billfish resources. A total of 34.9 mt of Atlantic
blue marlin and 3.3 mt of Atlantic white marlin were reported as
recreational landings for the U.S. in 1996. Therefore, under the 1997
ICCAT recommendation, the U.S. landing limits for Atlantic blue marlin
will be 26.2 mt, and 2.48 mt for Atlantic white marlin.
B. Accounting for All Sources of Fishing Mortality
NMFS seeks to account for all sources of fishing mortality on HMS
stocks. In recreational HMS fisheries, post-release mortality rates are
currently unknown; however, recorded dead discards of HMS are minimal.
ICCAT currently subtracts an estimate of dead discards of BFT from the
total allowable catch to allocate a stock-wide landing quota, a portion
of which is then allocated to the United States. NMFS may seek this
type of strategy with respect to all species.
For the Atlantic tunas fishery, NMFS proposes to establish a
reserve quota for school BFT (27 inches - <47 inches or 69-119 cm
curved fork length). The intent of this measure is to provide an
``overflow'' allowance in the event that projections underestimate
actual recreational landings of school-size BFT. This measure would
further ensure that the United States does not exceed the 8-percent
tolerance established under the ICCAT quota scheme for school BFT. This
provision will be further addressed in the BFT addendum to incorporate
recent modifications by ICCAT.
NMFS also proposes to subtract dead discards of sharks in the
commercial fishery and to subtract commercial landings of sharks from
state waters after Federal closures from the Federal commercial quotas.
While these measures may reduce the available LCS commercial quota
significantly, accounting for this additional mortality would enhance
the rebuilding of shark stocks. For pelagic sharks, this measure could
substantially reduce the available commercial quota because recent
estimates of dead discards of pelagic sharks approach current quota
levels. For SCS, these measures are not expected to reduce the
available quota substantially because most SCS that are not landed are
kept for bait; they are not discarded, and therefore, would not be
included in estimates of dead discards.
Some HMS are collected for the purpose of science, education, or
public display. NMFS must account for such mortality, particularly for
overfished species. NMFS proposes to establish a separate shark public
display quota of 0.5 percent of the LCS annual quota (60 mt whole
weight). This measure would make quota accounting and monitoring
procedures for sharks collected under the authority of an exempted
fishing permit (EFP) consistent with those for Atlantic tunas. BFT
collected under the authority of an EFP would be deducted from the
Reserve quota or School Reserve quota, depending on size. NMFS also
proposes to establish a new permitting and reporting system to monitor
EFP collections (refer to Section IV).
For the swordfish fishery, NMFS proposes to deduct recreational
landings of swordfish from the Incidental Catch quota until such time
that the swordfish population rebuilds and a directed recreational
fishery is sustained. This measure would account for recreational
fishing mortality of Atlantic swordfish, which is currently incidental
to other HMS recreational fisheries. If the recreational fishery
directs fishing effort on swordfish successfully in the future, NMFS
may establish a recreational fishing quota.
C. Quota Adjustment Procedures
NMFS proposes to adjust any commercial shark quota overharvest and
underharvest in a given period in the same period the following year
and to adjust management measures to account for recreational
overharvest and underharvest of the recreational harvest limits on an
annual basis. These measures support rebuilding of LCS because they
would ensure that overharvesting will be accounted for in setting
future harvest limits and will not delay LCS rebuilding.
Additionally, NMFS seeks to simplify the procedures for managing
the brief fishing season for LCS. NMFS proposes to establish opening
and closing dates of the LCS fishery prior to the fishery opening based
on catch rates from previous years. Fishery seasons would be scheduled
for a specific period instead of projecting closure dates based on
landings information. The Director of the Office of Sustainable
Fisheries will file for publication with the Office of the Federal
Register a notice of each season's length in a timely manner. NMFS also
proposes to adjust overharvest and underharvest levels the following
year and to not reopen the fishery within a season if there is a quota
underharvest. This measure is intended to increase the stability and
predictability of the LCS fishery and to reduce enforcement costs and
the administrative burden of projecting fishery closures based on near
real-time landings data.
NMFS proposes to add an additional criterion to use in determining
the appropriateness of a proposed in-season quota transfer for the BFT
fishery: ``effects on rebuilding and overfishing.'' Adding this
criterion to other factors to be considered would be consistent with
the precautionary approach to fisheries management and the 20-year
rebuilding program recently adopted by ICCAT, to be addressed in the
addendum to the draft HMS FMP.
NMFS also proposes to change the way quotas are tallied by NMFS by
changing the fishing year for Atlantic tunas from the current calendar
year to a June 1 through May 31 ``fishing year.'' This would facilitate
timely implementation of ICCAT recommendations for the fishing year.
Since it is not NMFS' intention to substantially change the fishing
practices of Purse Seine vessels targeting Atlantic tunas, the BFT
fishing season for the Purse Seine category will continue to open
August 15 and close December 31, or when each vessel's individual
vessel quota (IVQ) is filled. Purse Seine category vessels may fish for
tunas, other than BFT, at any point in the fishing year; however, a
Purse Seine category vessel may not fish for other tunas from August 15
through December 31 if that vessel's IVQ for BFT is filled. BFT caught
prior to August 15 in the yellowfin tuna purse seine fishery may not be
sold, but will be counted against the harvesting vessel's IVQ.
[[Page 3159]]
IV. Restrictions on Catch and Retention
Retention limits are employed by fishery managers to reduce fishing
mortality. In some cases, restrictions on catch may increase bycatch
mortality due to the discard of dead fish or post-release mortality.
Although post-release mortality in recreational HMS fisheries is
currently unknown, it is estimated to be low for most shark species and
for many tuna and billfish species if those fish are properly handled.
NMFS proposes to increase the minimum size limits for blue marlin
to 99 inches (251 cm) lower jaw-fork length (LJFL) and for sailfish to
63 inches (160 cm) LJFL and to maintain the minimum size for white
marlin at 66 inches (168 cm) LJFL. These measures will contribute to
the 25 percent reduction in landings required by a 1997 ICCAT
recommendation. NMFS further proposes to establish a retention limit of
one Atlantic white or blue marlin per vessel per trip, with a provision
to adjust the retention limit for each species to zero when the landing
limits for that species have been reached. NMFS has drafted an IRFA
regarding the economic impacts of these measures on small businesses.
Together, the minimum size limits and the retention limit should ensure
that the United States meets its international obligations regarding
reductions in billfish landings.
To date, no stock assessment of longbill spearfish exists, and NMFS
does not know of any directed or substantial incidental fishery for
this species. Therefore, NMFS proposes to prohibit the retention of
spearfish.
NMFS proposes new restrictions on catch and retention for sharks
that reflect a change in management policy regarding sharks from one
where possession of only certain species known to be vulnerable to
overfishing is prohibited to one where only possession of those species
expected to be able to withstand some fishing mortality is allowed.
This change in policy employs the precautionary approach and would
reduce the number of species authorized for retention by approximately
50 percent. In addition to the five species of LCS currently prohibited
from being retained, this measure would prohibit possession by any U.S.
fisherman (recreational or commercial) of dusky, night, bignose,
Caribbean reef, Galapagos, and narrowtooth sharks from the LCS
management unit; longfin mako, blue, bigeye thresher, sevengill,
sixgill, and bigeye sixgill sharks from the pelagic shark management
unit; and Caribbean sharpnose, smalltail, and Atlantic angel sharks
from the SCS management unit. Prohibiting retention of these sharks is
intended to prevent development of directed fisheries or a market for
uncommon or seriously depleted species.
Despite reductions in shark retention limits of 50 percent in the
recreational fishery in 1997, recreational harvest of LCS was reduced
by only 12 percent (in numbers of fish), and, for sandbar and blacktip
sharks, recreational harvest increased. NMFS, therefore, concludes that
the 1997 retention limit reduction was not effective at implementing
the desired 50 percent harvest reduction, and that additional measures
are necessary. Therefore, NMFS proposes to prohibit retention of all
Atlantic LCS and SCS in the recreational fishery and to set a retention
limit of one pelagic shark per vessel per trip. The proposed reduction
in retention limits to zero for LCS and SCS and one for pelagic sharks
is consistent with national standard 1 to rebuild the overfished LCS
stocks and is precautionary regarding pelagic and small coastal shark
stocks for which recent assessments have not been conducted.
NMFS also proposes a recreational retention limit of three
yellowfin tuna per person per day. This retention limit would help
reduce or redistribute recreational landings while allowing for
continued access to the fishery by recreational anglers. The Director
of the Office of Sustainable Fisheries will file for publication a
notice at the Office of the Federal Register of any adjustment to
retention limits for Atlantic tunas at least 3 calendar days prior to
the change becoming effective.
V. Minimize Bycatch and Bycatch Mortality
A 1997 NMFS Biological Opinion (BO), which identifies threats to
endangered species and provides alternatives to reduce those threats,
concludes that the pelagic longline component of the Atlantic pelagic
fishery for tuna, swordfish, and sharks may adversely affect, but is
not likely to jeopardize, the continued existence of the northern right
whale. It also concludes that the longline fishery may adversely
affect, but is not likely to jeopardize, the continued existence of any
endangered or threatened species. The BO concluded that the driftnet
component for tuna, swordfish, and sharks is likely to jeopardize the
continued existence of the northern right whale and may adversely
affect humpback and sperm whales, Kemp's ridley, green, loggerhead, and
leatherback sea turtles. NMFS seeks to minimize bycatch and bycatch
mortality of protected species and finfish to the extent practicable in
HMS fisheries and has, thus, evaluated all HMS fisheries with respect
to bycatch information.
A. Marine Mammal Bycatch
To reduce marine mammal bycatch, NMFS proposes to (1) implement
pelagic longline gear restriction and deployment measures recommended
by the Atlantic Offshore Cetacean Take Reduction Team (AOCTRT) in the
pelagic longline fishery, (2) prohibit the use of driftnet gear for
Atlantic tunas, and (3) implement take reduction measures recommended
by the Atlantic Large Whale Take Reduction Team in the southeast shark
gillnet fishery. These measures are also expected to reduce takes of
sea turtles in these fisheries.
(1) NMFS convened the AOCTRT in May 1996 to address interactions
between strategic marine mammal stocks and the Atlantic pelagic
driftnet and pelagic longline fisheries for tunas, sharks, and
swordfish. Cumulatively, these fisheries (and the pair trawl fishery
which was operating at that time under an EFP) take incidentally
several species of marine mammals at levels that are estimated to be
above the Potential Biological Removal (PBR) levels established for
these stocks. The AOCTRT included representatives of each of the
fisheries, environmental and conservation groups, several states, the
Mid-Atlantic Fishery Management Council, independent fisheries, the
marine mammal biological community, and NMFS. NMFS proposes to
implement the following measures, the majority of which were
recommended by the AOCTRT, to reduce marine mammal takes in the pelagic
longline fishery:
Mandatory educational workshops. Mandatory educational workshops
for pelagic longline fishermen are an effective means of reducing
bycatch; several workshops have been held thus far. NMFS began
workshops in October 1998 for pelagic longline captains, crew, and
vessel owners, and proposes that these workshops be mandatory for all
vessel owners/operators. These workshops educate fishery participants
about the MMPA and the problem of marine mammal interactions, promote
open communication at sea concerning interactions, encourage
communication between NMFS and fishermen experienced with handling
interactions, and provide marine mammal identification keys. Guidance
for preventing interactions with and disentanglement of mammals with
pelagic longline gear has been developed and is distributed at those
workshops.
[[Page 3160]]
Limited access. NMFS is re-proposing a limited access program for
the Atlantic swordfish and shark fisheries.
Gear length restrictions. NMFS proposes as an interim measure for
one year a requirement that pelagic longlines set in the Mid-Atlantic
Bight during August 1 through November 30 do not exceed 24 nautical
miles (nm) in length. In 1996, the AOCTRT estimated that this measure
could reduce bycatch and bycatch mortality of marine mammals by 20 to
30 percent. However, 1996 and 1997 observer data indicate that the
average length of longlines in that area during that time of year is 20
and 22 nm, respectively. Nevertheless, this measure would prevent the
use of longer gear in the future and may increase survival of some
finfish species, particularly billfish, due to the shorter soak time of
the gear. This measure, recommended by the AOCTRT, was intended to be
implemented on a trial basis for one year, to be followed by an
evaluation of the success of the management measure in reducing bycatch
of marine mammals.
Requirement to move gear after one entanglement. Because observer
and logbook data show that marine mammals and sea turtles are often
encountered in clusters, NMFS proposes to require pelagic longline
fishermen to retrieve their gear and move their vessels at least 1 nm
away after any gear interaction with a marine mammal or sea turtle.
This is a common practice among many pelagic longline fishermen and is
considered by fishermen to be effective in some areas at reducing
bycatch. The AOCTRT estimated that this measure could result in a 40-
percent reduction in serious injury and incidental mortality of marine
mammals. This measure is also likely to reduce takes of sea turtles.
Closure of right whale critical habitat. NMFS is proposing a time/
area closure of critical right whale habitat to reduce potential
interactions between pelagic longline gear and the endangered northern
right whale. NMFS proposes to close critical right whale habitat to
pelagic longline fishing in New England and the southeast coastal
United States (refer to regulatory text for specific times and areas).
Other. Because of current funding constraints, NMFS at this time
cannot adopt the recommendation of the AOCTRT and pursue research on
acoustic deterrent devices. However, NMFS is interested in identifying
gear modifications which may increase post-release survival, including
hook types, rig configurations, and so forth. NMFS has developed a
research plan to identify research needs and objectives for a
comprehensive plan for HMS and related fisheries. Should funding become
available, NMFS would assign a priority to such research needs.
(2) The AOCTRT, in a draft plan submitted to NMFS in 1996
recommended measures for the driftnet fishery to reduce marine mammal
bycatch. At this time, NMFS does not propose to implement those
measures because of a proposed rule to prohibit the use of this gear
for taking swordfish.
In a separate rulemaking (63 FR 55998, October 20, 1998), NMFS
proposed to prohibit the use of driftnets in the Atlantic swordfish
fishery due to the high management burden of reducing bycatch of marine
mammals and sea turtles in a limited fishery that lasts approximately
14 days a year for 12 vessels. Such a ban in the Atlantic swordfish
fishery may discourage anyone from entering a driftnet tuna fishery
because the possession of swordfish on a vessel with a driftnet on
board would be prohibited, thereby decreasing the gross ex-vessel
revenues of the driftnet trip. Therefore, extending this proposed ban
to include driftnets in the tuna fishery is not expected to have a
significant negative economic impact. The final rule implementing the
HMS FMP will include any measures finalized as a result of the proposed
rule to ban driftnets in the swordfish fishery.
(3) NMFS proposes to adopt measures in the Atlantic Large Whale
Take Reduction Plan (ALWTRP) to reduce bycatch of marine mammals in the
shark gillnet fishery. The implementing regulations for the ALWTRP,
which include observer coverage requirements, gear marking
requirements, closed times and areas, and special provisions for
strikenetting (refer to interim final rule, 62 FR 39157, July 22, 1997)
are applicable to the southeast shark drift gillnet fishery. NMFS
proposes to adopt the regulations of the ALWTRP under the authority of
the Magnuson-Stevens Act to ensure regulatory consistency.
B. Finfish Bycatch
To reduce finfish bycatch mortality, NMFS encourages recreational
and commercial fishermen to handle released fish carefully. Handling
options include leaving a fish in the water and cutting the leader
close to the hook or releasing the fish by using a dehooking device.
Current billfish regulations stipulate that billfish must be released
by cutting the leader. However, public comments and data suggest that
dehooking devices are very useful, even for large pelagic fish, and may
decrease post-release mortality. Therefore, for billfish, NMFS proposes
to allow alternative mechanisms to remove a hook from a billfish caught
on commercial or recreational gear either by cutting the leader close
to the hook or by using a dehooking device.
Multiple hooks per bait or lure may increase post-release mortality
by increasing the probability that fish are hooked in the gills or
throat. NMFS, therefore, takes a precautionary approach and proposes to
prohibit the use of more than one hook per bait or lure in the
recreational billfish fishery.
To address the incidental catch of undersized swordfish in the
pelagic longline fishery, NMFS analyzed catch data from 1987 through
1996. Based on logbook data submitted by pelagic longline fishermen,
small swordfish appear to aggregate in areas that include the
Charleston Hump, the east coast of Florida, and the Florida Escarpment.
Given unknowns related to seasonal distribution of small swordfish,
NMFS intends to reduce bycatch of undersized swordfish in an area that
consistently produces small swordfish year-round. Fishery-dependent
data indicate that catch rates of undersized swordfish (less than 33 lb
or 15 kg dw) are high in some areas at certain times of the year but
appear to be high year-round in the Florida Straits. NMFS proposes to
prohibit the use of pelagic longline gear in the Florida Straits (26-
28 deg. N. lat, 78-81 deg. long.) during July-September. Analysis of
1996 pelagic logbook data indicates that swordfish discard ratios are
the highest in this area during the third quarter; however if seasonal
distribution of small swordfish shifts, reductions in bycatch are still
likely to occur. NMFS will evaluate the efficacy of this program in
reducing discards of undersized swordfish, given the distribution of
swordfish and re-distribution of fishing effort, and may implement
other time/area closures in the future to reduce swordfish discards.
This measure is likely to have a significant impact on small businesses
that regularly fish in that area during the third quarter and may have
significant impacts on related businesses such as those that specialize
in high-quality swordfish. The Florida Straits consistently produces
high quality swordfish due to the proximity of the fishing grounds to
port and to the subsequent short fishing trips. (Refer to the
Regulatory Impact Review and the IRFA in the FMP for details on
estimated economic impacts.)
NMFS recognizes that the proposed measures to minimize juvenile
swordfish bycatch mortality may result in significant economic impacts
to small businesses. However, long term positive economic impacts
resulting from a
[[Page 3161]]
larger spawning stock biomass may mitigate the effects of short-term
closures such as the closure proposed herein. NMFS is proposing a large
closure area to discourage fishermen from fishing the ``fringes'' of
the closed area and thus impeding the discard reduction and lengthening
the amount of time needed for rebuilding.
In order to effectively enforce the time/area closure, NMFS
proposes to require all vessels with pelagic longline gear on board to
submit regular position reports (one report per hour) to NMFS via a
vessel monitoring system (VMS) unit meeting NMFS' specifications. The
VMS requirement would be extended to all vessels in the pelagic
longline fleet with a Directed or Incidental Limited Access Permit
because any vessel could fish off the coast of Florida at any given
time. A VMS would also reduce the cost of enforcing the time/area
closure.
A VMS has a vessel safety feature because it increases
communication with shore. Other possible benefits include allowing
pelagic longline fishermen reporting from a VMS to offload swordfish
after a directed fishery closure, provided no fishing activity takes
place after the closure date. In addition, because VMS units would be
on board, NMFS proposes to allow longline vessels to transit the North
Atlantic Ocean with South Atlantic swordfish on board during a closure
of the North Atlantic directed swordfish fishery.
Fishermen should consult with NMFS on VMS requirements before
purchasing a VMS unit. The cost of a VMS unit would be approximately
$3,000 to $5,000, with an additional $1,000 estimated for installation.
Vessel owners would be responsible for the maintenance of the VMS unit
and communication costs, which are not likely to exceed $2.50 per day.
Related to bycatch reduction monitoring, NMFS proposes to require that
all HMS longline and shark nets be marked on the terminal floats and
high flyers, as applicable. This requirement would result in better
identification of gear in the enforcement of current regulations and
facilitate enforcement of the proposed time/area closure for pelagic
longline vessels. Identifying lost gear or gear entangling protected
species is also facilitated if the gear has the vessel's official
number or, in the case of Atlantic tunas, a vessel's permit number
clearly marked. Further, marked gear can be reported for any violation
of fishery conservation and management measures. Therefore, NMFS
proposes that all harpoon and handline floats be marked as well.
To reduce bycatch mortality in recreational HMS fisheries, NMFS
intends to initiate an educational program by (1) distributing
information concerning dehooking devices and hook and leader types that
may increase post-release survival; (2) informing fishermen about
problems of recreational fishery bycatch; (3) promoting a survival
ethic concerning released fish; and (4) informing fishermen about
reporting requirements that include reporting of bycatch species.
VI. Improve Data Collection and Enforcement
The proposed rule contains several existing and several new
permitting requirements. In all cases except initial limited access
permits (ILAPs), vessel and dealer permit applications and instructions
for their completion are available from the NMFS Regional Offices (for
tuna vessel permits, call 888-USA-TUNA; for tuna dealer permits, call
978-281-9370; for swordfish/shark dealer permits and the first LAP,
call 727-570-5326). ILAPs will be issued by the Director of the Office
of Sustainable Fisheries. Application forms and instructions for ILAPs
and LAPs are available from the HMS Management Division of NMFS at 301-
713-2347. Based upon application information and the eligibility
criteria, the Office Director will make determinations regarding
eligibility for limited access. Inquiries and concerns related to the
issuance of ILAPs and LAPs should be directed to the HMS Management
Division. After you receive your first LAP, LAP renewals and
replacements will be issued by NMFS. Permitting requirements for
specific HMS fisheries are detailed in the regulatory text.
The proposed rule contains several new and existing reporting
requirements. Pelagic logbook and swordfish and shark dealer reporting
forms are available from the Southeast Fisheries Science Center and are
mailed regularly to all permit holders in the database. BFT bi-weekly
dealer reports and BFT landing report forms, Bluefin Statistical
Documents, and BFT dealer tags are available from the HMS Management
Division, in Gloucester, MA 978-281-9140. For HMS other than bluefin
tuna, in lieu of reporting to the Northeast Science Director (SD) in
Woods Hole, MA or the Southeast SD in Miami, FL, reports may be
submitted to a state or Federal fishery port agent designated by the
SD. BFT landing reports should be submitted by dealers to the HMS
Management Division in Gloucester, MA by electronic facsimile or
Interactive Voice Response(fax, 978-281-9393) and by U.S. mail (NMFS-
NERO, 1 Blackburn Drive, Gloucester, MA, 01930). Bi-weekly reports on
BFT purchases should be submitted to the same address. If you carry a
general, Longline, Harpoon, or Trap category Atlantic Tunas permit and
you land a large medium/giant BFT but do not sell it, you must contact
NMFS enforcement at the time of landing and, if requested, make the
fish available for inspection by a NMFS enforcement agent. If you land
any size BFT and are permitted in the Angling category or fishing under
Angling retention limits with a Charter/Headboat permit, you must
report the BFT through the automated catch reporting system by calling
888-USA-TUNA. NMFS will inform fishery participants of reporting
requirements and procedures, and alternatives or changes to those
requirements, for school, large school, and small medium BFT.
Anglers who voluntarily release HMS are encouraged to tag their
released fish. Anglers who catch a BFT during a closed season must tag
all released BFT. You may obtain NMFS-issued conventional tags, or
request permission to use alternate tags, by contacting the NMFS
Cooperative Tagging Program at 800-437-3936.
Mandatory registration of tournaments involving any Atlantic HMS is
proposed. Under the proposed measure, tournament operators must notify
the NMFS Southeast Fisheries Science Center (``Tournament
Registration'', 75 Virginia Beach Drive, Miami, FL 33149, fax: 305-361-
4219) of the purpose, dates, and location of a fishing tournament for
Atlantic HMS at least 4 weeks prior to tournament commencement. When
selected by NMFS, this measure is accompanied by reporting requirements
for all tournament directors. This measure, proposed in the
consolidated rule, and re-proposed here, is currently implemented under
a separate interim rulemaking for billfish tournaments only.
To account for limited access and to improve quota monitoring and
catch data collection, shark and swordfish vessel permit holders or
dealer permit holders would no longer be exempt from obtaining an
Atlantic tunas dealer permit to purchase tunas. These permit holders
would also be subject to reporting requirements associated with the
Atlantic tunas permit. Additionally, the requirement for owners and
operators to present the harvesting vessel's permit to the receiving
dealer upon transfer of HMS is proposed to be extended to all Atlantic
tunas, shark, and swordfish permit holders.
[[Page 3162]]
To facilitate enforcement and prevent circumvention of the proposed
Certificate of Eligibility requirement, NMFS proposes to extend the
authority to designate and restrict, after consultation with the U.S.
Customs Service, ports of entry for import into the United States to
any Pacific or Atlantic swordfish from any source.
NMFS proposes to create an HMS Charter/Headboat permit in order to
identify the universe of these vessels. This universe would be useful
in estimating economic and social aspects of the fishery as well as
providing a universe for implementing proposed logbook and observer
coverage requirements. Charter/Headboat operators who currently report
their HMS catch and effort data in non-HMS Federal logbooks would be
able to continue to do so. All others would report catch and effort
data in the Large Pelagic Logbook and submit to NMFS, Logbook Program,
P.O. Box 491500, Key Biscayne, FL 33149-9916. NMFS proposes to require
all HMS logbooks to be completed within 24 hours of hauling a longline
or shark net set or of completing a day's fishing activities, if a
single day trip. This measure would lessen the management and
enforcement costs of HMS regulations and would ultimately aid in
rebuilding overfished stocks and preventing overfishing. Currently,
pelagic logbooks must be submitted to NMFS within 7 days after
offloading HMS from a trip.
If selected by NMFS, the HMS Charter/Headboat permit holders, along
with all Atlantic tunas permit holders, would be required under this
proposal to carry an observer. This would supplement bycatch and
bycatch mortality databases as well as provide coverage of catch and
discard rates of target and non-target species.
To collect sufficient data from EFPs, NMFS proposes to develop a
reporting system regarding collection of sharks for public display.
This information would be useful in monitoring the proposed public
display quota (see section I).
To facilitate enforcement, NMFS proposes to require that sharks be
recreationally landed with heads, tails, and fins attached. This
measure is expected to have minimal economic and social impacts, but
would greatly facilitate dockside species-specific identification of
shark landings for monitoring, management, and enforcement purposes.
Finally, NMFS proposes to extend the prohibition on finning to all
sharks, regardless of whether the shark species are defined as part of
Federal management unit or are subject to any Federal regulations, as a
condition of the Federal commercial shark permit. This measure is
intended to enhance enforcement capabilities by removing a costly and
time-consuming administrative burden of verifying species-specific
identification of shark fins through genetic testing. Note that the
Mid-Atlantic and New England Fishery Management Councils are proposing
a finning prohibition in a draft FMP for spiny dogfish.
VII. Administrative and Procedural Changes
NMFS proposes to dissolve the Shark Operations Team due to the
subsequent formation of the HMS Advisory Panel. The HMS AP serves
essentially the same advisory function for shark management. By
eliminating the Shark Operations Team, NMFS would reduce management
costs, avoid duplication of effort, and reduce the burden on interested
constituents. Further, NMFS seeks to reduce management costs of
administering these panels and would continue to rely on the HMS AP to
provide comments on FMPs or FMP Amendments related to shark management.
NMFS proposes to adjust the fishing year to be June 1 through May
31 for the Atlantic tunas and billfish fishery, consistent with the
Atlantic swordfish fishery. The Atlantic shark fishing year will
continue to be January 1 through December 31.
To further prevent U.S. overfishing, NMFS proposes to extend the
management unit definitions for Atlantic blue marlin and Atlantic white
marlin to the entire Atlantic Ocean. This would allow for consistent
management with other Atlantic HMS and is consistent with the biology
of the species (Atlantic-wide stock).
VIII. Limited Access Program
Vessel permit limited access systems were considered by NMFS in a
draft amendment to the Atlantic Sharks FMP (November 8, 1996) for which
a proposed rule published on December 27, 1996 (61 FR 68202)and to the
Atlantic Swordfish FMP (January 28, 1997) for which a proposed rule
published on February 26, 1997 (62 FR 8672). Significant changes to the
qualifying criteria and operational characteristics of the limited
access systems are being considered by NMFS in response to comments on
those proposed rules. Due to the magnitude of changes under development
and the need to update ownership records under the revised eligibility
criteria, NMFS decided to re-propose the limited access systems as part
of the HMS FMP. Furthermore, the proposed rule to implement the HMS FMP
offers an opportunity to propose an expanded limited access program for
longline vessels that also includes tunas. Comments on the first
limited access proposed rules are summarized with NMFS responses in the
HMS FMP. NMFS has also updated the economic analyses since the
publication of the HMS FMP to include analyses of limited access under
the revised eligibility criteria.
The objectives of the limited access system are to: (1) reduce
latent effort by eliminating speculative permit holders who have not
participated in the fisheries (i.e., to allow only permit holders who
were active and dependent on swordfish or shark fishing before January
1, 1998, and who are still active); (2) provide mechanisms to allow
traditional swordfish handgear fishermen (whose permits may have lapsed
due to the scarcity of large fish, which they target) to participate
fully as the stock recovers; (3) reduce regulatory discards in both
directed and incidental fisheries; (4) provide mechanisms to account
for the dynamic and multispecies aspects of these fisheries through
permit transferability and vessel upgrading provisions; and (5) prevent
substantial increases in vessel harvesting capacity of the currently
active fleet. A long-term objective for the Atlantic swordfish and
shark fisheries is to create a management system in which the U.S.
harvesting capacity would be commensurate with resource productivity to
achieve the dual goals of economic efficiency and biological
conservation.
As described below and in the draft HMS FMP, major changes from the
previously proposed rules include: (1) an extension of the eligible
permit and landings periods from June 30, 1995, to December 31, 1997,
in order to be consistent with the goal of limited access to reduce
latent effort only; (2) the establishment of historical evidence or
meeting an earned income requirement as the criteria for a swordfish
handgear permit; (3) a withdrawal of the proposed decrease in the
directed swordfish fishery harvest limit for longline vessels during a
directed longline fishery closure; (4) a provision for transferability
of incidental catch permits; (5) an elimination of the allowance to
submit landings records other than official NMFS fishing vessel logbook
records, except for the period January 1, 1991, through June 30, 1993,
for sharks; (6) an elimination of the restriction on permit and vessel
transferability during the first year of limited access implementation;
(7) the clarification that a limited access
[[Page 3163]]
permit is a privilege and not a right in perpetuity; (8) an exemption
for those persons who purchased a qualifying vessel and its landings
history after December 31, 1997, from the requirement to have owned a
vessel issued a valid Federal swordfish or shark permit at any time
from July 1, 1994 through December 31, 1997; (9) an exemption for
persons who first obtained a Federal swordfish or shark permit in 1997
from the requirement to document a second year of Atlantic swordfish or
shark landings, and the establishment of the requirement that such
persons have documented landings for the calendar year of January 1,
1997, through December 31, 1997, of at least 25 swordfish or 102 sharks
for a directed permit or at least one swordfish or shark for an
incidental catch permit; (10) the clarification that vessel landing
histories cannot be divided among permit holders; (11) the
clarification that vessel landings histories cannot be consolidated
from several vessels; (12) a modification of the provision for
contested eligibility of vessel ownership, or permit, or landings
histories; (13) an extension of the eligibility requirements for a
limited access permit to persons who fish for, possess, land, or sell
swordfish from the South Atlantic swordfish stock (consistent with the
1997 rulemaking for South Atlantic swordfish); and (14) an extension of
limited access requirements to the Atlantic Tunas Longline Category
permit holders.
A. Permit Categories
NMFS proposes to establish a two-tiered commercial fishing permit
system in which permits are classified as ``directed'' or
``incidental'' based on historical and current permit and landings
histories in the relevant HMS fisheries. Five types of permits would be
issued: Directed swordfish; incidental swordfish; swordfish handgear;
directed shark; and incidental shark. Directed permits would allow
holders of such permits to operate under the commercial quotas, trip
limits, minimum size restrictions, closures, harvest limits during
closures, gear restrictions, and other regulations, that will be
established by the HMS FMP. Directed handgear permits would allow
holders of such permits to harvest swordfish with handgear, provided no
longline gear is on board. Incidental catch permits would allow holders
of such permits to harvest a smaller limited number of swordfish or
sharks per trip. Limited access permits would be issued only for gears
and areas for which a commercial quota has been authorized. Access to
both the directed and incidental swordfish and shark fisheries would be
limited. A vessel's owner would be issued only one type of swordfish
permit and one type of shark permit.
B. Eligibility Criteria
Only persons who: (1) owned a vessel issued a valid Federal
swordfish or shark permit at any time from July 1, 1994, through
December 31, 1997; (2) have documented landings that meet at least the
directed or incidental threshold levels of participation in the
swordfish or shark fishery (defined below); and (3) owned a swordfish-
permitted or shark-permitted vessel at any time during the period June
1 through August 31, 1998 (swordfish), or July 1 through August 4, 1998
(sharks), would be eligible for a limited access permit. Separate
criteria are proposed for a swordfish handgear permit. Recreational
anglers would not need a permit to fish for, possess, or land swordfish
or sharks; however, they may not sell swordfish or sharks and would be
subject to relevant retention limits and other restrictions (e.g.,
recreational retention limits, size restrictions, gear restrictions)
As part of the eligibility criteria for the directed permit,
documented landings of at least 25 swordfish or 102 sharks per year in
any 2 calendar years between January 1, 1987, and December 31, 1997
(swordfish), or between January 1, 1991 and December 31, 1997 (shark),
would be required. This threshold is roughly equivalent to having
landed sufficient swordfish or shark each year on average to earn
$5,000 per year in gross revenue. NMFS estimates that approximately 190
vessels would be eligible for directed swordfish permits and
approximately 187 vessels would be eligible for directed shark permits
based on these criteria. The actual number of directed permits that are
issued may be higher than this estimate if additional landings records
or evidence of vessel history transfers are presented in support of an
application or appeal.
NMFS would issue swordfish handgear permits only to those persons
who provide evidence of having been issued a swordfish permit for use
with handgear or having landed swordfish with handgear, or to those who
have derived more than 50 percent of their earned income from all
commercial fishing through the harvest and first sale of fish or from
charter/headboat fishing, or to those who had gross sales of fish
greater than $20,000 harvested from their vessel, during any one of the
last three calendar years (earned income requirement). There would be
no requirement of having a permit or landings history specific to the
swordfish fishery in order to qualify for a swordfish handgear permit,
although historical evidence of swordfish permit and landings history
would be accepted.
As part of the eligibility criteria for an incidental swordfish
permit, a minimum of 11 swordfish landed between January 1, 1987, and
December 31, 1997, and meeting the same earned income requirement as
for a directed handgear permit would be required. As part of the
eligibility criteria for an incidental shark permit, a minimum of seven
sharks landed between January 1, 1991, and December 31, 1997, would be
required. NMFS estimates that approximately 70 vessels and 305 vessels
would be eligible for incidental swordfish and shark permits,
respectively. As with the directed permits, the actual number of
incidental permits that are issued may be higher depending on
additional record or vessel history transfer submissions.
Vessel landings histories are assumed to belong to the owner of the
vessel at the time of actual landing. However, if a vessel was sold and
its landings history was included specifically in the original written
sales agreement, such landings would accrue to the purchaser instead of
the seller for purposes of qualifying for a directed or incidental
permit under the limited access system. Because NMFS does not currently
maintain records of associated vessel history sales or purchases, NMFS
proposes to consider claims that a vessel's landings history was
transferred at the time the vessel was sold during the application
process.
NMFS is proposing two exemptions to these eligibility criteria in
order to be consistent with the overall intent of the limited access
system, to accommodate for the dynamic aspect of this fishery since
NMFS first began limited access rulemaking in mid-1995, and to address
the effects of delays in implementation of this limited access program.
The first exemption would exempt persons who purchased a qualifying
vessel and its landings history after December 31, 1997, from the
requirement to have owned a vessel issued a valid Federal swordfish or
shark permit at any time from July 1, 1994, through December 31, 1997.
Such persons would have to have purchased vessels and their associated
landings histories that meet the landings eligibility criteria
specified above, through documented transfer at the time of purchase,
and would have to have owned this swordfish-permitted or shark-
permitted vessel at any time during the period June 1 through August
31, 1998 (swordfish), or July 1 through
[[Page 3164]]
August 4, 1998 (shark). This exemption would provide a mechanism to
account for vessel sales since NMFS initiated rulemaking and would not
result in any increase in the number of current participants. Without
such an exemption, qualifying vessels could be eliminated despite
legitimate purchases of vessels and their associated landings histories
because the current owner did not own a vessel issued a valid Federal
swordfish permit before December 31, 1997. Because NMFS does not
currently maintain records of associated vessel history sales or
purchases, NMFS proposes to consider such claims on vessel landings
history transfer during the application process.
The second exemption would exempt persons who first obtained a
Federal swordfish or shark permit in 1997 from the requirement to
document a second year of swordfish or shark landings. Rather, such
persons would have to document, for the calendar year of January 1,
1997, through December 31, 1997, landings of at least 25 swordfish or
102 sharks for a directed permit, or at least 1 swordfish or shark for
an incidental catch permit. This exemption would provide for persons
who first obtained Federal swordfish permits in 1997 to be eligible for
directed or incidental permits, as appropriate. The requirements to own
a vessel issued a valid permit at any time from July 1, 1994, through
December 31, 1997, and to own a swordfish-permitted or shark-permitted
vessel at any time during the period June 1 through August 31, 1998
(swordfish), or July 1 through August 4, 1998 (shark), would still
apply. The rationale for this exemption is that persons who first
entered the fishery in 1997 would be incapable of meeting the 2-year
landings requirement. NMFS estimates that approximately 4 and 3
additional vessels would qualify for a directed swordfish and shark
permits, respectively, and approximately 5 and 21 additional vessels
would qualify for an incidental catch swordfish or incidental catch
shark permit, respectively, based on this exemption.
Many permit holders who will receive these directed/incidental
permits also hold Atlantic Tunas Incidental Category Permits.
Nevertheless, to address the multispecies nature of the pelagic
longline fishery, anyone who had an Atlantic Tunas Incidental Category
Permit between January 1, 1998, and August 31, 1998, would receive a
swordfish and a shark incidental permit. Also, anyone with a swordfish
permit would receive a shark incidental permit and an Atlantic Tunas
Longline Category Permit. A total of 738 vessels would be expected to
receive at least one type of limited access permit. More vessels could
receive permits under the application and appeals processes.
Given the limited quota available to U.S. vessels in the South
Atlantic swordfish fishery, NMFS does not intend to allow expansion of
pelagic longline fishing effort in that area. On July 25, 1997 (62 FR
40039), NMFS published a proposed rule to establish commercial quotas
for swordfish from the South Atlantic stock. In that rulemaking, NMFS
provided the public the opportunity to comment on the proposal that
vessel permits to fish for swordfish from the South Atlantic stock be
limited to those who qualify for a directed permit under the previously
proposed limited access system for swordfish. At the time, NMFS noted
that most vessels that have fished for swordfish in the South Atlantic
have also landed swordfish from the North Atlantic Ocean. NMFS received
no comments during the comment period on this measure and concluded in
the final rule (62 FR 55357, October 24, 1997) that permits in the
South Atlantic should be limited to those who qualify for a directed
swordfish permit under limited access. This proposed rule and the draft
HMS FMP reflect that decision.
C. Permit Process
Effective 1 June 1999, all Federal swordfish and shark vessel
permits issued prior to this date by the NMFS Southeast Regional Office
would be invalid. All owners of vessels who wish to fish for, possess,
land, or sell swordfish or sharks from the management unit (except
those participating in the recreational fishery only or fishing
exclusively in state waters) would be required to obtain an initial
limited access permit from the Director of the Office of Sustainable
Fisheries.
After NMFS conducts an analysis of landings and permit histories,
all those who owned swordfish-permitted vessels and owned or operated
shark-permitted vessels at any time during the period June 1 through
August 31, 1998 (swordfish), or July 1 through August 4, 1998 (shark),
would be notified by letter of their eligibility status for the
directed or incidental swordfish and shark fisheries. NMFS would issue
initial limited access permits to those who qualify. Those permits
would be valid through the marked expiration date.
If a vessel owner or operator is informed that he or she does not
qualify for a limited access permit, but he or she believes that there
is credible evidence to the contrary, he or she may apply for either a
directed or incidental catch permit and provide the appropriate
documentation to NMFS within 90 days. Similarly, if a vessel owner or
operator is notified that he or she qualifies for an incidental catch
permit, but he or she believes that there is credible evidence of
eligibility for a directed permit, he or she may apply for a directed
permit and provide the appropriate documentation to NMFS within 90
days. NMFS would notify no one as to his or her status for handgear
permits. If a person believes he or she is eligible for a handgear
permit, that person may apply to NMFS within 90 days. NMFS would then
evaluate all applications and accompanying documentation, and notify
the applicant of its decision either to issue or deny the permit. If
denied, the applicant may appeal the decision by submitting an appeal,
in writing, to NMFS within 90 days of receipt of the notice of denial.
Oral hearings would not be provided. Provisional limited access
permits, as appropriate, would be issued for use by the appellant
pending the outcome of an appeal until the final agency decision has
been rendered. The sole grounds for appeal would be that NMFS reviewed
incorrect or incomplete landings data in the eligibility analysis or
improperly considered the applicant's earned income documentation, if
applicable. No ``hardship'' appeals would be considered.
Landings documentation that would be considered in support of an
application or an appeal would be restricted to official NMFS logbook
records of landings that were received by NMFS prior to March 2, 1998
(60 days after the cutoff date for eligible landings) and that reflect
landings during the time the person held a valid permit. Landings
records from sources other than fishing vessel logbooks would not be
accepted because mandatory permitting and reporting requirements
existed during the entire permit eligibility and landings time frame,
except for sharks landed from January 1, 1991, through June 30, 1993.
For sharks landed from January 1, 1991, through June 30, 1993, landings
documentation that would be considered in support of an application or
appeal for a shark limited access permit would be restricted to
official, verifiable sales slips or receipts from registered dealers,
and state landings records. Dealer sales slips or receipts would have
to show definitively the species and the vessel's name or other
traceable indication of the harvesting vessel. Dealer records would
have to contain a sworn affidavit by the dealer confirming the accuracy
of the records.
Additionally, landings records during periods that a vessel did not
have a
[[Page 3165]]
valid Federal permit would not be accepted. Landings histories may not
be divided among permit holders; only complete catch histories of sold
vessels would be accepted. This restriction is intended to prevent
increases in fleet capacity that would result from multiple vessels
qualifying for a limited access permit based on a single vessel's catch
history. Similarly, landings may not be consolidated among vessels;
permit holders may not pool landings from several ineligible vessels to
meet eligibility requirements. This restriction is intended to prevent
increases in fleet capacity that would result from the pooling of
multiple ineligible vessel catch histories.
In the event that more than one vessel owner claims eligibility for
a limited access permit based on one vessel's ownership, permit, or
landings history, the applicants claiming the vessel's ownership or
permit or landings history would have to determine which person will
receive the limited access permit. NMFS would not determine the outcome
of contractual conflicts, but the applicants would have to resolve the
contested issue and inform NMFS.
D. Transfer of Permits
Directed and incidental permits would be transferable with the sale
of the permitted vessel, or to a transfer vessel, or to a replacement
vessel owned or purchased by the original permittee, but not under any
other circumstances. Such transfers would be subject to upgrading
restrictions (described in the following paragraph). Swordfish handgear
permits would be transferable, but only for use with handgear.
After the initial limited access permits (ILAPs) are issued in
1999, the eligibility criteria to which initial limited access permit
holders are subject would no longer apply; the only requirement would
be to have been issued a limited access permit in the preceding year.
Similarly, transferees/buyers of limited access vessel permits would
not be subject to the initial limited access eligibility criteria; only
transfer restrictions would apply (i.e., vessel upgrading and ownership
restrictions, if applicable). After the issuance of ILAPs, all renewals
or transferred permits would be issued as limited access permits (LAPs)
by NMFS.
E. Vessel Upgrading
NMFS proposes that any vessel to which a LAP is transferred,
defined as the ``transfer'' vessel, have no more than a 20-percent
increase in vessel horsepower or 10-percent increase in length overall,
gross registered tonnage, net tonnage, and hold capacity as the vessel
originally issued the limited access permit. This restriction would
apply to replacement vessels, transfer vessels, and to the
refurbishment of existing permitted vessels. These proposed upgrading
criteria are based on proposed guidelines recently adopted by the Mid-
Atlantic and New England Fishery Management Councils. Since HMS vessels
are also affected by upgrading restrictions of fisheries under
management by these two Councils, NMFS is attempting to achieve
consistency on upgrading restrictions.
F. Ownership Limits
NMFS proposes to restrict the number of permitted vessels that any
one person could own or control to no more than five percent of the
directed fleet.
IX. Essential Fish Habitat (EFH)
The HMS FMP and the Amendment 1 to the Billfish FMP identify EFH as
required by the Magnuson-Stevens Act. Because they range over vast
expanses of the ocean, factors that control or limit habitat use by HMS
are largely unknown or are difficult to determine. However, to the
extent possible, EFH has been described and identified based on
scientific publications, expert knowledge, and analysis of presence/
absence and relative abundance data, when available. Where information
is available (e.g., temperature/salinity tolerances, and/or current or
water mass information), it has been used to narrow the extent of EFH
within the areas most commonly used by the species.
Analyses of fishing practices led to the conclusion that adverse
impacts on EFH from HMS fishing gears are negligible. However, there
are potential threats from gears of other fisheries that warrant
further investigation. Non-fishing activities with the potential to
adversely affect EFH are described in the draft HMS and Billfish FMP
documents along with conservation measures based on recommendations
made in the past by NMFS regional staff and consistent with
conservation measures delineated by the Councils that have jurisdiction
over other species that occur in the same areas as those identified as
EFH in the HMS and Billfish FMPs and supporting documents.
Research recommendations include investigation of HMS habitat
associations and preferences, life history studies and early life stage
species identification, habitat characterizations (e.g., for nursery
and spawning areas), improved tagging and tracking technology, and the
role of habitat in survival and productivity for the various life
stages. The EFH portions of the HMS FMP and Amendment 1 to the Billfish
FMP do not have any measures requiring regulatory implementation at
this time.
X. Minor Administrative and Technical Changes
These measures represent administrative and technical changes to
HMS regulations or changes to the regulations that are necessary to
implement the draft HMS FMP or draft Amendment 1 to the Billfish FMP.
They may not be explicitly addressed in the draft HMS FMP or in draft
Amendment 1 to the Billfish FMP. NMFS issued a proposed rule to
consolidate HMS regulations for tunas, sharks, swordfish, and billfish
on November 6, 1996 (61 FR 57361). Five public hearings were held to
receive comments on the proposed rule. Additionally, numerous written
comments were received by mail and fax. Most of these comments focused
on the identified substantive changes to the regulations rather than on
the consolidated format. The following changes to the regulations were
identified in the previously proposed consolidated rule or have been
made in response to the comments received on that proposed rule or are
necessary to implement measures in the draft HMS FMP and draft Billfish
Amendment.
1. The incidental catch permit category for Atlantic tunas would be
eliminated and redefined as ``longline'' to reflect the existing
authorization of directed longline fisheries for tunas other than
bluefin tuna and as ``traps'' to account for unavoidable catch of
bluefin tuna by pound nets, traps and weirs. As a consequence of this
reorganization and to address enforcement issues concerning
unauthorized landing of bluefin tuna under the Incidental catch quota,
fixed gear other than ``traps'' and purse seines for non-tuna fisheries
will be no longer allowed to land BFT. Additionally, due to the limited
Incidental catch quota, an incidental catch limit of one BFT per year
is established for trap fishermen. This measure would also eliminate
confusion with Incidental limited access permits.
2. To achieve consistency between regulations applicable to all
HMS, the definition of rod and reel gear would be modified to include
the use of electrically operated reels. Although electric reels are
permitted under current billfish regulations, conflicts with the
consolidated regulations would arise when fishing for, or incidentally
taking, Atlantic tunas. Therefore, the broader definition would be made
applicable to all HMS.
[[Page 3166]]
3. The handgear exemption for fishing vessels and dealers of
Atlantic tunas, shark, and swordfish permits, in Puerto Rico and the
U.S. Virgin Islands would be eliminated. These vessel owners and
dealers would be required to obtain the appropriate permits and follow
all reporting requirements. These exemptions were created because it
was presumed catch data could be accessed from other information
collection programs. However, it has not been possible to access this
information in a timely manner. Given the likelihood of continuing
restricted quotas for tunas, swordfish, and sharks, accurate and timely
reporting of all catch is necessary.
4. The permit category for BFT buy-boats would be eliminated as
obsolete. For the last several years, the retention limit for General
category vessels has been set at one fish per day, thus precluding the
need to offload BFT at sea. In addition, compliance with applicable
vessel and dealer reporting requirements would be difficult to achieve
under at-sea transfer conditions. ICCAT has also recommended
prohibiting transfer of BFT at sea.
5. The 30-day allowance for swordfish and shark dealers to operate
under the permit of the previous business owner would be removed to
achieve consistency with tuna dealer permit regulations.
6. Regulations that are no longer necessary on tuna vessel
reporting, as approved under OMB control number 0648-0168, would be
replaced by the vessel logbook requirements approved under OMB control
number 0648-0016.
7. To facilitate enforcement and to achieve consistency with
regulations applicable to all HMS, the allowance to transfer HMS at sea
by transfer vessels would be removed. This allowance was originally
implemented for purse seine fishermen using transport vessels for
cannery deliveries, a practice that no longer occurs in the Atlantic
Ocean. The allowance for at-sea transfer of BFT among permitted purse
seine vessels would remain.
8. The distinction between selected and non-selected vessels for
the purposes of shark logbooks would be dropped because all vessels
have been selected in recent years under the previously implemented
mandatory reporting requirement.
9. The time frame for reporting and submitting the bi-weekly BFT
dealer report would be adjusted to the time frame applicable for the
bi-weekly dealer report for swordfish, sharks, and other Atlantic
tunas. Thus, all dealer reports regarding these three species groups
would be due not later than the 20th day of the month for
HMS received on the 1st through the 15th days of
each month, and not later than the 5th day of the following
month for HMS received on the 16th through the last day of
each month.
10. Current regulations that prohibit sale of billfish are unclear
concerning the sale of such related species as striped marlin, black
marlin, shortbill spearfish. The consolidation would clarify the
regulatory text to achieve consistency with the prohibition on sale as
implemented through the certificate of eligibility requirements for
sale of billfish and related species. All billfish species found in
commerce would be considered to be Atlantic billfish unless accompanied
by a Certificate of Eligibility.
11. Regulations applicable to the swordfish donation program would
be removed as unnecessary codified text. Donation programs for
swordfish or any of the regulated HMS could be established and
adequately enforced under a specific letter of authorization.
12. Current regulations prohibit a change of tuna permit category
after May 15. This restriction was imposed so that a vessel could not
fish in more than one quota category subsequent to the June 1
commencement of the Harpoon and General category BFT fishing seasons.
Existing regulations have not prevented some vessel operators from
fishing under the bluefin tuna Incidental category prior to May 15 and
in the General category after June 1. Under this proposed rule,
Atlantic tunas permit category changes would be limited to one change
each year, between January 1 and May 15. No permit changes would be
permitted from May 16 through December 31, regardless of sale of a
vessel. This would prevent commercial vessel operators from fishing for
bluefin tuna in more than one commercial quota category in a single
year. To be consistent among all categories, the one-per-year limit on
category changes for Atlantic Tunas permits would also apply to
recreational vessels obtaining Angling category permits.
13. To facilitate enforcement of minimum size and retention limit
regulations and to facilitate identification of species, all Atlantic
tunas would be required to be landed with the tail attached.
14. The set-aside of swordfish quota for the harpoon segment of the
directed fishery would be removed because it is unnecessary. A prior
rulemaking established the swordfish fishing year and first semiannual
quota period beginning June 1. When the fishing year and the first
semiannual period began on January 1, a set-aside was needed because
the summer harpoon fishery could be precluded by a directed fishery
closure at the end of the period. The change in fishing year has
eliminated this problem.
15. Gear restrictions applicable to specific categories of tuna
permits would be limited to fishing activity for bluefin tuna. In a
prior rulemaking, the requirement for tuna permits was extended from
BFT to all Atlantic tunas. Gear restrictions necessary to implement
category quotas for bluefin tuna were carried over to apply to all
Atlantic tunas. Because Atlantic tunas other than bluefin are not
subject to quotas, gear restrictions are not necessary, with the
exception of driftnets.
16. Much of the regulatory text regarding restrictions on imports
would be removed as obsolete since ATCA has been amended. The
Department of State will be consulted during the comment period for
this proposed rule, as necessary, to ensure that the revised trade
restrictions regulations comply with ATCA. NMFS implemented a final
rule in 1997 that banned the import of BFT from Belize, Honduras, and
Panama as a result of an ICCAT recommendation. Further, NMFS proposed
trade restrictions for Atlantic swordfish on October 13, 1998 (63 FR
54661). The final rule to implement the HMS FMP will include any
finalized trade restrictions that result from that separate rulemaking
for swordfish.
17. Except for applications for an initial limited access permit,
vessel and dealer permit applicants will have up to 30 days to submit
required information not supplied with original applications,
otherwise, the application will be considered abandoned. Information
changes must be reported within 30 days for permits to remain valid.
18. Logbook requirements approved under OMB control number 0648-
0016 would apply to commercial and for-hire tuna vessels only if
selected by NMFS. Initially, a sample of vessels from each permit
category, (except for Charter/headboat permit holders, which will all
be selected), will be selected to evaluate reporting forms and
reporting schedules.
19. To enhance flexibility in business decisions, purse seine
notification would be set at 24 hours prior to sailing or landing, with
automatic waiver of inspection requirements if not undertaken within 24
hours of notification.
20. To be consistent with revised 50 CFR 600.745, Sec. 635.32
incorporates new policies and procedures on issuance of letters of
authorization, exempted
[[Page 3167]]
fishing permits, and scientific research permits.
21. Technical changes were made to reflect NMFS reorganization by
changing references from Regional Director to Regional Administrator
and from Science and Research Director to Science Director. Where
necessary, cross references to regulations in other CFR parts were
updated.
22. The method of taking tuna measurements was amended to conform
with instructions given in past years and to reflect an analysis of
measurement conversion data obtained in 1996.
23. Given the increased use of inseason retention limit adjustments
to restrict harvest in the BFT Angling category to seasonal and
geographic subquotas, the retention limit for school, large school, and
small medium BFT is established at one per vessel, per day. This
retention limit may be adjusted inseason through one or more
specification notices published in the Federal Register.
24. Changes were made to the BFT trophy catch provisions applicable
within the Gulf of Mexico to clarify that anglers may retain large
medium or giant BFT onboard vessels permitted in the Angling or
Charter/Headboat categories if taken incidental to fishing for other
species.
25. Specific regulatory text was added to prohibit purchase or
possession by dealers of undersized Atlantic swordfish landed by
fishing vessels of the United States.
26. Technical revisions were made to the bluefin tuna statistical
document (BSD) program. Current regulations require that a BSD be
completed and provided to NMFS for import or export of bluefin tuna.
NMFS has recently acquired import records from U.S. Customs that
indicate non-compliance with the BSD program, particularly for imports.
Revisions are necessary to clarify procedures for BSD filing by
defining import, importer, export and exporter, and by specifying
circumstances under which a BSD must be completed. These revisions do
not materially change the requirements, but provide more explicit
instructions for the benefit of both tuna dealers and NMFS/Customs
enforcement.
27. Revisions are also made to the ICCAT port inspection scheme. At
its 1997 meeting, ICCAT recommended revisions to its port inspection
scheme, to which the United States is a party. These revisions are
technical in nature and serve to clarify the authority for inspections,
procedures for inspections, and the requirements for reports to flag
states and the ICCAT Secretariat. The revisions are not substantive and
only standardize procedures already in place for most contracting
parties that have adopted the port inspection scheme.
28. A revision to the Angling category trophy fish tagging
requirement is made to provide coordination with harvest tagging
programs for school, large school, and small medium fish as implemented
by NMFS or by any of the States. In coordinating such programs, the
burden on anglers and NMFS enforcement will be reduced.
29. NMFS has removed the notification requirement for vessels
transiting the Panama Canal with regulated species on board. This
requirement was originally implemented for purse seine vessels
offloading Pacific tuna catch at canneries in Puerto Rico. NMFS
believes that fishing and offloading practices have changed so as to
make this regulation obsolete.
30. The effective date of all regulatory amendments and inseason
actions will be the date of filing with the Office of the Federal
Register or, if subject to delayed effectiveness, on the prescribed
period of delay based on the date of filing. Existing regulations
variously refer to dates of filing or publication, with the publication
delay normally three or four days. The discrepancies arise from
balancing the need for timely action with the need for advance
notification. Given the ability to rapidly communicate with fishery
interest groups via the HMS Fax Information Network and NOAA weather
radio, standardizing the effective date relative to filing will allow
NMFS to be more responsive without unduly restricting the advance
notification required by fishery participants.
XI. Applicability of Regulations in State Waters
State regulations applicable to ICCAT-managed species (Atlantic
tunas, swordfish, and billfishes) that are less restrictive than
Federal regulations or are not effectively enforced are subject to
preemption by Federal regulations under section 971g(d) of ATCA.
Pursuant to 971g(e) of ATCA, the Secretary of Commerce is required to
perform a continuing review of the laws and regulations of all states
for which preemption by Federal regulations applies and the extent to
which such laws and regulations are enforced. Also, under section
306(b)(1) of the Magnuson-Stevens Act, after notice and an opportunity
for a hearing, Federal regulations may apply within state waters if the
state has taken action or omitted to take action which will
substantially and adversely affect the carrying out of Federal FMPs and
the regulations to implement them (16 U.S.C. 1801 et seq.).
In an effort to review those regulations and make determinations
about preemption, NMFS contacted the following states: Alabama,
Connecticut, Delaware, Florida, Georgia, Louisiana, Maine, Maryland,
Michigan, Massachusetts, Mississippi, New Hampshire, New Jersey, New
York, North Carolina, Pennsylvania, Rhode Island, South Carolina,
Texas, Virginia, Puerto Rico, and the U.S. Virgin Islands.
As of October 1998, NMFS has received replies from the following
states: Florida, Georgia, Louisiana, Massachusetts, New Jersey, North
Carolina, and Virginia. With the issuance of this proposed rule, NMFS
will again contact the states to request information regarding state
regulations applicable to ICCAT-managed HMS and the gear used in
fisheries targeting or catching them.
NMFS will be conducting public hearings in several states regarding
the proposed regulations to implement the HMS FMP and Billfish
Amendment. In addition, NMFS will contact all Atlantic Coast states and
territories to determine if additional hearings on the FMPs and
proposed regulations are necessary, particularly regarding the
preemption issue. NMFS intends to coordinate and consult with all
Atlantic Coast states and territories to meet management objectives and
to achieve regulatory consistency.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the Atlantic Tunas
Convention Act, 16 U.S.C. 971 et seq.
NMFS has concluded that this proposed rule to implement the HMS FMP
would have a significant economic impact on a substantial number of
small entities. Specifically, the time/area closure for pelagic
longline fishermen in the Florida Straits, the non-ridgeback LCS quota
reduction, and limited access measures for the shark fishery would have
a significant economic impact on affected entities. In combination, the
proposed alternatives for sharks and swordfish would also have a
significant economic impact on a substantial number of small entities.
Accordingly, an IRFA has been prepared to accompany the HMS FMP. A
summary of the IRFA regarding these issues follows:
[[Page 3168]]
Time/Area Closure for Pelagic Longline Fishing
NMFS proposes to ban the use of pelagic longline gear in the
Florida Straits between July and September. The preferred time/area
closure would likely have significant economic impacts for 17 of the 20
vessels that fish in that area at that time.
NMFS considered several alternatives that would reduce catches of
small swordfish and that could have less severe economic impacts on the
pelagic longline fishery participants. The alternatives included
continuing the existing minimum size (33 lb, or 15 kg dw) and counting
dead discards against the swordfish quota. If ICCAT adopts a
recommendation that dead discards should count against the quota, NMFS
will further consider this measure in future rulemaking. Although these
alternatives may have lesser economic impacts on the pelagic longline
fishery participants and provide incentives to reduce small swordfish
catch, neither measure guarantees reduced discards of undersized
swordfish.
NMFS also considered the alternative of closing other areas with
high swordfish discard rates in addition to the Florida Straits. NMFS
rejected this alternative for several reasons, including the
significant economic impacts expected on additional pelagic longline
participants. NMFS may consider closing these areas in the future if
deemed necessary to reduce the bycatch of undersized swordfish.
Although the status quo alternative (no time/area closure) would have
less of an economic impact in the short term, this alternative was
rejected because it is not expected to meet the statutory objectives of
reducing the discard rate and rebuilding the stock. Thus, in the long
term, the status quo alternative may have even greater significant
impacts for all pelagic longline participants.
Non-Ridgeback LCS Quota Reduction
NMFS proposes to separate the current LCS management unit into
ridgeback and non-ridgeback LCS and to reduce the quota for non-
ridgeback LCS by 66 percent (by weight). This alternative is expected
to minimize adverse economic impacts on LCS fishermen by allowing
higher harvest levels than those maintained if the LCS management unit
were kept as a single unit. This measure should rebuild ridgeback LCS
stocks consistent with the Magnuson-Stevens Act requirements to rebuild
overfished fisheries and to consider the impacts of fishery resources
on communities. NMFS estimates that 53 participants may cease business
operations due to this alternative.
NMFS considered other alternatives, including keeping the LCS
management unit as a single group, with status quo reduced, and zero
harvest levels, as well as implementing a phased-in quota for non-
ridgeback LCS. Some of these quota alternatives, such as a closure,
would meet the management objectives of rebuilding LCS stocks, and
would have significant negative economic impacts in the short term, but
would have economic benefits in the long term. Other alternatives
considered, such as status quo, would have little or no negative
economic impacts in the short term, but they would have significant
negative economic impacts in the long term if the stock continued to
decline. Additionally, the status quo alternative may possibly have no
positive economic benefits and would not meet the statutory objectives
to rebuild the LCS stock. NMFS chose the alternative that minimizes the
short and long term economic impacts while also rebuilding LCS stocks.
Limited Access to the Atlantic Swordfish and Shark Fisheries
The proposed limited access system would affect all current permit
holders in the Atlantic swordfish and shark fisheries and those vessels
fishing for Atlantic tunas with longlines. The intent of limited access
is to exclude only those fishermen whose logbook records indicate they
are neither active nor dependent on the swordfish and shark fisheries
except that tuna longliners would automatically receive a swordfish or
shark limited access permit to authorize landing of incidental catch.
The proposed limited access program for swordfish is not expected to
have a significant economic impact on a substantial number of small
entities. However, a similar analysis indicates that, due to the
proposed limited access system for the shark fishery, a significant
number of shark vessels (48) would be forced to cease business
operations. NMFS found that many of these vessels were directing for
sharks in 1997 (the year used in the analysis) but had left the fishery
in 1998, and, therefore, would not qualify under the proposed limited
access system. Thus, NMFS believes that many of the vessels that the
analysis indicates would not be eligible for permits may have already
left the fishery due to circumstances other than limited access.
Because this limited access system is not intended to remove any active
entity dependent on the fishery, NMFS may reconsider the requirement of
having held a permit during the open season in 1998 for sharks, based
on comments received on this proposed rule.
The other alternatives regarding the implementation of limited
access for swordfish and shark fisheries include a range of permit and
landings history (eligibility) alternatives, incidental harvest limits,
and permit transfer and vessel upgrade restrictions. While these
alternatives might have lesser economic impacts on the fishery
participants, NMFS believes those alternatives may be inconsistent with
the objectives of removing inactive permits and limiting increases in
the harvesting capacity of the fleet.
The draft HMS RIR/IRFA provides further discussion of the economic
effects of all the alternatives considered in the draft HMS FMP.
To ensure that the impacts of the Amendment 1 to the Billfish FMP
are fully analyzed, NMFS has prepared an IRFA pursuant to 5 U.S.C. 603
without regard to whether the proposed action would have a significant
economic impact on a substantial number of small entities. A summary of
the IRFA follows:
Adjustment to Billfish Retention Limit
NMFS proposes to institute a retention limit of one Atlantic
billfish per vessel per trip with an additional provision that would
reduce the retention limit for blue and/or white marlin to zero if
landing limits for Atlantic blue marlin and/or white marlin are reached
(26.2 mt and 2.48 mt, respectively). Cumulative landings would be
determined from the most recent tournaments and from other state or
federal data sources. Implementation of a zero retention limit, or just
the possibility of such, may affect participation in Atlantic billfish
tournaments. NMFS has received indications that tournaments may be
canceled or may experience a significant reduction in participation if
fishermen are not allowed to land a billfish that meets the legal size
constraints. The zero retention limit provision was included in this
proposed rule to avoid exceeding the 1997 ICCAT recommended landing
levels for blue and white marlin. In other words, this measure would
allow recreational fishermen to land billfish until the landing limits
are reached. NMFS believes that this measure, while it may reduce
tournament participation in the short-term, will aid in rebuilding the
stocks, thus increasing participation in the long term.
NMFS considered other alternatives to reduce the landings of
Atlantic billfish, including prohibiting possession of Atlantic
billfish by all
[[Page 3169]]
U.S.-flagged recreational vessels. This alternative was not selected
because it was considered to be too drastic in lowering landings
unnecessarily. In addition, the mortality of Atlantic billfish
recreationally caught by U.S. anglers is small relative to Atlantic-
wide mortality levels. Thus, the short- and long-term negative economic
impacts experienced by entities who rely on the billfish recreational
fishery would exceed any advantages of this measure on rebuilding
billfish stocks. This alternative would also put U.S. fishermen at a
disadvantage compared with fishermen from other countries.
Another alternative considered would allow Atlantic blue marlin and
Atlantic white marlin to be landed only during fishing tournaments and
from charter vessels. All other recreational landings of Atlantic
marlin (this alternative did not include sailfish) would be prohibited.
Although this alternative might minimize any negative economic impacts
on tournament sponsors and charter vessel owners, NMFS rejected this
alternative because it would have a discriminatory impact on private
vessels operating outside tournaments.
The last alternative considered would prohibit landing of billfish
in conjunction with a tournament to be released (i.e., require all
tournaments to be ``no-kill''). Atlantic billfish could still be landed
during other recreational efforts. NMFS believes that this alternative
would not reduce Atlantic billfish landings or economic impacts because
Atlantic billfish tournaments are currently moving toward alternative
means to measure angler success in catching billfish.
Adjustment to a Higher Minimum Size Limit
NMFS considered other alternatives to reduce the landings of
Atlantic billfish, including the minimum sizes implemented in the
interim rule. This alternative would also provide NMFS the authority to
increase the minimum size limits in season, rather than decreasing the
retention limits to ensure compliance with the ICCAT landings limits
for marlins. NMFS believes that this alternative could restrict
landings to the allowable level without undue economic impacts because
very large Atlantic billfish could still be landed in tournaments or
for mounting purposes by private anglers. In this way, the potential
for landing a very large billfish would still provide an incentive for
fishing activity. Implementation of this alternative would require an
accurate monitoring system for NMFS to provide sufficient notice of
size limit adjustments to tournaments.
The draft RIR/IRFA for Amendment 1 to the Billfish FMP provides
further discussion of the economic impacts of all the alternatives
considered.
This proposed rule contains new and revised collection-of-
information requirements, subject to review and approval by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act (PRA),
and restates several current requirements. The new and revised
collections have been submitted to OMB for approval. In particular, six
new reporting requirements would include position reports from a
vessel-monitoring system for all pelagic longline vessels; gear marking
and vessel identification requirements for longline and shark net gear,
and for handgear and harpoon floats; permits for all HMS Charter/
Headboat vessels; observer requirements for HMS Charter/Headboat
vessels if selected; logbooks for all Atlantic tuna vessels and HMS
Charter/Headboat vessels; and revised reporting procedures for EFPs.
The following requirements have been approved by OMB or have been
submitted to OMB for approval:
1. Requirement for HMS Charter/Headboat Permits in Sec. 635.4,
estimated at 30 minutes per initial permit application and 6 minutes
per renewal, has been submitted for OMB clearance in association with
this proposed rule. However, no additional burden is anticipated as
nearly all HMS charter/headboats are permitted under currently approved
permitting collections (0648-0202; 0648-0205; 0648-0327), any of which
will serve to meet this requirement.
2. Atlantic tunas vessel permits in Sec. 635.4 (approved under OMB
control number 0648-0327), estimated at 30 minutes per initial permit
application and 6 minutes per renewal; and Atlantic tunas dealer
permits in Sec. 635.4 (approved under OMB control number 0648-0202),
estimated at 5 minutes per permit action.
3. Shark and swordfish vessel permits in Sec. 635.4 (approved under
OMB control number 0648-0205), estimated at 20 minutes per permit
action; and shark and swordfish dealer permits in Sec. 635.4 (approved
under OMB control number 0648-0205), estimated at 5 minutes per permit
action. Importer permitting requirements for swordfish in Sec. 635.4,
estimated at 5 minutes per application, for which a proposed rule
published on October 13, 1998 (63 FR 54661), have since been approved
by OMB under 0648-0205.
4. Dealer reporting and recordkeeping requirements for Atlantic
bluefin tuna in Sec. 635.5 (approved under OMB control number 0648-
0239), estimated at 3 minutes for daily reports, 14 minutes per bi-
weekly report of fish purchases, and 1 minute to affix tags and label
containers.
5. Dealer reporting and recordkeeping requirements for swordfish,
sharks, and Atlantic tunas in Sec. 635.5 (approved under OMB control
numbers 0648-0013 and/or 0648-0239) estimated at 15 minutes per bi-
weekly report of fish purchases and 3 minutes per negative report.
Importer reporting requirements for swordfish in Sec. 635.5, estimated
at 15 minutes per bi-weekly report, for which a proposed rule published
on October 13, 1998 (63 FR 54661), have since been approved by OMB
under 0648-0013.
6. Vessel reporting and recordkeeping requirements for swordfish
and sharks in Sec. 635.5 (currently approved under OMB control number
0648-0016) estimated at 10 minutes per logbook entry, including the
attachment of tally sheets, and 2 minutes for ``no-fishing'' reports.
NMFS has submitted a request to OMB for vessel reporting requirements
for Atlantic tunas and HMS charter boats in Sec. 630.5 estimated at 12
minutes per logbook entry and 2 minutes for a negative catch report.
NMFS intends to randomly select 10 percent of the tuna vessels and all
HMS charter boats on an annual basis. While NMFS intends to consolidate
HMS logbooks under a new information collection, there will be an
initial trial period for tuna vessels and HMS charter/headboats with
the pelagic logbook forms currently approved under 0648-0016. After
evaluation of the program, NMFS will request OMB approval to issue
logbooks tailored to the specific reporting requirements of individual
fishery segments
7. Fishing tournament registration and selective reporting in
Sec. 635.5 (approved under OMB control number 0648-0323) estimated at
10 minutes per report.
8. Swordfish and shark limited access permit documentation
requirements in Sec. 635.16 (approved under OMB control number 0648-
0325) estimated at 1.5 hours per response.
9. Vessel identification requirements for permitted HMS vessels in
Sec. 635.6 estimated at 45 minutes per vessel, have been submitted to
OMB for approval.
10. HMS gear marking requirements in Sec. 635.6, estimated at 15
minutes per action and pertaining to longline gear (terminal floats and
hi-flyers), shark nets (terminal floats) and harpoon and handgear
floats, have been submitted to OMB for approval.
11. Notification for at-sea observer requirements for Atlantic
tuna, swordfish, and shark vessels in Sec. 635.7, estimated at 2
minutes per response, has
[[Page 3170]]
been consolidated and submitted for OMB approval.
12. Position reporting and communication from a vessel monitoring
system in Sec. Sec. 635.9 and 635.69, estimated at 0.033 seconds per
position report or 5 minutes per vessel per year, 4 hours for
installation, and 2 hours for annual maintenance, has been submitted to
OMB for clearance.
13. BFT purse seine inspection requests in Sec. 635.21 (approved
under OMB control number 0648-0202) estimated at 5 minutes per request.
14. Angler reporting of trophy BFT in Sec. 635.23 (approved under
OMB control number 0648-0239) estimated at 3 minutes per report, and
Angler reporting of school and medium tuna in Sec. 635.5 (approved
under OMB control number 0648-0328) estimated at 5 minutes per
response.
15. HMS catch and release program requirements in Sec. 635.26
(approved under OMB control number 0648-0247) estimated at 2 minutes
per tagging card.
16. Documentation requirements for sale of billfish in Sec. 635.31
(approved under OMB control number 0648-0216) estimated at 20 minutes
for dealers purchasing from vessels and 2 minutes for subsequent
purchasers.
17. Swordfish Certificate of Eligibility in Sec. 635.46, estimated
at 60 minutes per document, for which a proposed rule published on
October 13, 1998 (63 FR 54661), has since been approved under OMB
control number 0648-0363. Bluefin Tuna Statistical Document in
Sec. 635.42 (approved under OMB control number 0648-0040) estimated at
20 minutes per document.
18. Revised application and reporting requirements under EFPs in
Sec. 635.32, estimated at 30 minutes per application, 5 minutes per
fish collection report, and 30 minutes per annual summary report, have
been submitted for OMB clearance.
19. Archival tag reporting requirements in Sec. 635.33, estimated
at 1.5 hours for implantation reports and 30 minutes per fish catch
report, have been approved by OMB under control number 0648-0338.
20. Bluefin tuna statistical documents in Sec. 635.42, estimated at
20 minutes per fish import report, and government validation of BSDs in
Sec. 635.44, estimated at 2 hours per occurrence, have been approved by
OMB under control number 0648-0040.
Written requests for purse seine allocations for Atlantic tunas as
required under Sec. 635.27 are not currently approved by OMB. Requests
for purse seine allocations are not subject to the PRA because, under
current regulations, a maximum of five vessels could be subject to
reporting under this requirement. Since it is impossible for 10 or more
respondents to be involved, the information collection is exempt from
the PRA clearance requirement.
Certificate of eligibility requirements for imports of fish subject
to trade restrictions under Sec. 635.40 are not currently approved by
OMB. These regulations were required under ATCA and were originally
issued prior to the enactment of the PRA. NMFS would consult with OMB
prior to implementing any trade restrictions under this section. While
ATCA and the implementing regulations at Sec. 635.40 authorize
unilateral trade action by the United States, it is more likely that
multilateral action would be taken upon a recommendation of ICCAT. In
such case, notice and comment rulemaking procedures under ATCA would
apply and OMB clearance for information collections would be requested
prior to issuance of a proposed rule.
Public comment is sought regarding whether these proposed new or
revised collections-of-information are necessary for the proper
performance of the functions of the agency, including whether the
information has practical utility; the accuracy of the burden
estimates; ways to enhance the quality, utility, and clarity of the
information to be collected; and ways to minimize the burden of the
collection of information, including the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS,
Highly Migratory Species Management Division and OMB (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid OMB Control Number.
NMFS initiated formal consultation for all HMS fisheries on
September 25, 1996, under section 7 of the ESA. NMFS requested an
additional formal consultation on the HMS FMP and Billfish Amendment on
May 12, 1998. The consultation request concerned the possible effects
of management measures in the Amendment 1 to the Billfish FMP and the
HMS FMP, including implementation of AOCTRP measures for the pelagic
longline fishery. In a BO issued on May 29, 1997, NMFS concluded that
operation of the harpoon fishery is not likely to adversely affect the
continued existence of any endangered or threatened species under NMFS
jurisdiction and that operation of the longline fishery may adversely
affect, but may not jeopardize, the continued existence of any
endangered or threatened species under NMFS jurisdiction. Conversely,
it was concluded that driftnet fishing for swordfish in the Northeast
and Mid-Atlantic and for sharks in the Southeast jeopardized the
continued existence of the northern right whale. NMFS proposed on
October 20, 1998 (63 FR 55998), to prohibit the use of driftnets in the
Atlantic swordfish fishery. Another rulemaking implemented a take
reduction plan for Atlantic large whales in the southeastern United
States under the MMPA (62 FR 39157, July 22, 1997). This proposed rule,
if implemented, would further reduce the likelihood of interactions
between HMS fishing gears and northern right whales and endangered sea
turtles through gear modifications and educational workshops for
pelagic longline fishermen that were recommended by the AOCTRT.
This proposed rule has been determined to be significant for
purposes of E.O. 12866.
List of Subjects
50 CFR Part 285
Fisheries, Fishing, Penalties, Reporting and recordkeeping
requirements, Treaties.
50 CFR Parts 600, 630, 635, 644, and 678
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: January 12, 1999.
Rolland A. Schmitten,
Assistant Administrator, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR chapters II and VI
are proposed to be amended as follows:
50 CFR Chapter II
PART 285--ATLANTIC TUNAS FISHERIES [REMOVED]
1. Under the authority of 16 U.S.C. 971 et seq., part 285 is
removed.
50 CFR Chapter VI
PART 630--ATLANTIC SWORDFISH FISHERY [REMOVED]
PART 644--ATLANTIC BILLFISHES [REMOVED]
PART 678--ATLANTIC SHARKS [REMOVED]
2. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801
et seq., parts 630, 644, and 678 are removed.
[[Page 3171]]
PART 600-MAGNUSON-STEVENS ACT PROVISIONS
3. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
4. In Sec. 600.10, the definitions for ``Albacore'', ``Angling'',
``Atlantic tunas'', ``Atlantic Tunas Convention Act'', ``Bigeye tuna'',
``Billfish'', ``Bluefin tuna'', ``Blue marlin'', ``Carcass'', ``Catch
limit'', ``Charter vessel'', ``Fillet'', ``Fish weir'', ``Headboat'',
``Land'', ``Longbill spearfish'', ``Pelagic longline'', ``Person'',
``Postmark'', ``Pound net'', ``Purchase'', ``Round'', ``Sailfish'',
``Sale or sell'', ``Shark net'', ``Skipjack tuna'', ``Strikenet for
sharks'', ``Swordfish'', ``Trip'', ``White marlin'', and ``Yellowfin
tuna'' are added in alphabetical order to read as follows:
Sec. 600.10 Definitions.
* * * * *
Albacore means the species Thunnus alalunga, or a part thereof.
* * * * *
Angling means fishing for or catching of, or the attempted fishing
for or catching of, fish by any person (angler) with a hook attached to
a line that is hand-held or by rod and reel made for this purpose.
* * * * *
Atlantic tunas means bluefin tuna, albacore, bigeye tuna, skipjack
tuna and yellowfin tuna found in the Atlantic Ocean.
Atlantic Tunas Convention Act means the Atlantic Tunas Convention
Act of 1975, 16 U.S.C. 971-971h.
* * * * *
Bigeye tuna means the species Thunnus obesus, or a part thereof.
Billfish means blue marlin, longbill spearfish, sailfish, or white
marlin.
Bluefin tuna means the species Thunnus thynnus, or a part thereof.
Blue marlin means the species Makaira nigricans, or a part thereof.
Carcass means a fish that has been gilled and/or gutted and the
head and some or all fins have been removed, but that is otherwise in
whole condition.
Catch limit means the total allowable harvest or take from a single
fishing trip or day, as defined in this section.
* * * * *
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that meets the requirements of the U.S. Coast Guard to carry six or
fewer passengers for hire.
* * * * *
Fillet means to remove slices of fish flesh from the carcass by
cuts made parallel to the backbone.
* * * * *
Fish weir means a large catching arrangement with a collecting
chamber that is made of non-textile material (wood, wicker) instead of
netting as in a pound net.
* * * * *
Headboat means a vessel that holds a valid Certificate of
Inspection issued by the U.S. Coast Guard to carry passengers for hire.
* * * * *
Land means to begin offloading fish, to offload fish, or to arrive
in port or at a dock, berth, beach, seawall, or ramp.
Longbill spearfish means the species Tetrapturus pfluegeri, or a
part thereof.
* * * * *
Pelagic longline means a suspended monofilament longline with
greater than 3 hooks or leaders that is supported along its length by
floats and is marked on the surface by high-flyers. It is a rebuttable
presumption that a longline marked with floats and high-flyers in water
depths greater than 50 fathoms (91 m) is a pelagic longline.
Person means any individual, partnership, corporation, or
association subject to the jurisdiction of the United States.
* * * * *
Postmark means independently verifiable evidence of the date of
mailing, such as a U.S. Postal Service postmark, United Parcel Service,
or other private carrier postmark, certified mail receipt, overnight
mail receipt, or a receipt issued upon hand delivery to a
representative of NMFS authorized to collect fishery statistics.
Pound net means a set net. The trap portion is composed of netting
with a vertical side, a top, a cover, and non-return valves fitted
inside. This may be moored with anchors and casks and held open with
stretcher poles or floats.
* * * * *
Purchase means the act or activity of buying, trading, or
bartering, or attempting to buy, trade, or barter.
* * * * *
Round means a whole fish--one that has not been gilled, gutted,
beheaded, or definned.
* * * * *
Sailfish means the species Istiophorus platypterus, or a part
thereof.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
* * * * *
Shark net, sometimes called a shark gillnet or shark driftnet,
means a flat net with webbing of 5 inches or greater stretched mesh and
a twine size of 0.52 mm diameter or greater. The shark net is
unattached to the ocean bottom, whether or not it is attached to a
vessel, and it is designed to be suspended vertically in the water to
entangle the head or other body parts of a shark that attempts to pass
through the meshes.
Skipjack tuna means the species Katsuwonus pelamis, or a part
thereof.
* * * * *
Strikenet for sharks means to fish with strikenet gear and to land
or have on board an amount of shark that exceeds the recreational catch
limit.
* * * * *
Swordfish means the species Xiphias gladius, or a part thereof.
* * * * *
Trip means the time period that begins when a fishing vessel
departs from a dock, berth, beach, seawall, ramp, or port to carry out
fishing operations and that terminates with a return to a dock, berth,
beach, seawall, ramp, or port.
* * * * *
White marlin means the species Tetrapturus albidus, or a part
thereof.
Yellowfin tuna means the species Thunnus albacares, or a part
thereof.
5. Section 600.15 is amended by redesignating paragraphs (a)(2)
through (a)(6) as paragraphs (a)(5) through (a)(9), by redesignating
paragraphs (a)(7) through (a)(11) as paragraphs (a)(11) through
(a)(15), and by adding paragraphs (a)(2) through (a)(4) and paragraph
(a)(10) to read as follows:
Sec. 600.15 Other acronyms.
(a) * * *
(2) ATCA-Atlantic Tunas Convention Act
(3) BFT (Atlantic bluefin tuna) means the subspecies of bluefin
tuna, Thunnus thynnus thynnus, or a part thereof, that is found in the
Atlantic Ocean.
(4) BSD means the ICCAT bluefin tuna statistical document.
* * * * *
(10) ICCAT means the International Commission for the Conservation
of Atlantic Tunas.
* * * * *
6. Part 635 is added to read as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
Subpart A--General
Sec.
635.1 Purpose and scope.
635.2 Definitions.
635.3 Relation to other laws.
[[Page 3172]]
635.4 Permits and fees.
635.5 Recordkeeping and reporting.
635.6 Vessel and gear identification.
635.7 At-sea observer coverage.
635.8 Educational workshops.
635.9 Vessel monitoring.
Subpart B--Limited Access
635.16 Limited access permits.
Subpart C--Management Measures
635.19 BFT size classes.
635.20 Size limits.
635.21 Gear operation and deployment restrictions.
635.22 Recreational retention limits.
635.23 Retention limits for BFT.
635.24 Commercial retention limits for sharks and swordfish.
635.26 Catch and release.
635.27 Quotas.
635.28 Closures.
635.29 Transfer at sea.
635.30 Possession at sea and landing.
635.31 Restrictions on sale and purchase.
635.32 Specifically authorized activities.
635.33 Archival tags.
635.34 Adjustment of management measures.
Subpart D--Restrictions on Imports
635.40 Restrictions to enhance conservation.
635.41 Species subject to documentation requirements.
635.42 Documentation requirements.
635.43 Contents of documentation.
635.44 Validation requirements.
635.45 Import restrictions for Belize, Honduras, and Panama.
635.46 Import restrictions on swordfish.
Subpart E--International Port Inspection
635.50 Basis and purpose.
635.51 Authorized officer.
635.52 Vessels subject to inspection.
635.53 Reports.
635.54 Ports of entry
Subpart F--Enforcement
635.69 Vessel monitoring systems.
635.70 Penalties.
635.71 Prohibitions.
Appendix A to Part 635--Species Tables
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
Subpart A--General
Sec. 635.1 Purpose and scope.
(a) Atlantic tunas, billfish, and swordfish. The regulations in
this part govern the conservation and management of Atlantic tunas,
billfish, and Atlantic swordfish under the authority of the Magnuson-
Stevens Act and ATCA. They implement the Fishery Management Plan for
Atlantic Tunas, Swordfish, and Sharks and in the Fishery Management
Plan for Atlantic Billfishes. The Atlantic tunas regulations govern
conservation and management of Atlantic tunas in the management area
and apply to a person or vessel subject to the jurisdiction of the
United States. The Atlantic billfish regulations govern conservation
and management in the management area and apply to a person or vessel
subject to the jurisdiction of the United States. The swordfish
regulations govern conservation and management of North and South
Atlantic swordfish in the management unit. North Atlantic swordfish are
managed under the authority of both ATCA and the Magnuson-Stevens Act.
South Atlantic swordfish are managed under the sole authority of ATCA.
The swordfish regulations apply to a person or vessel subject to the
jurisdiction of the United States.
(b) Shark. The regulations in this part govern sharks under the
authority of the Magnuson-Stevens Act and implement management measures
in the Fishery Management Plan for Atlantic HMS. The shark regulations
in this part govern conservation and management of sharks in the
management area and apply to a person or vessel subject to the
jurisdiction of the United States.
Sec. 635.2 Definitions.
In addition to the definitions in the Magnuson-Stevens Act, ATCA,
and Sec. 600.10 of this chapter, the terms used in this part have the
following meanings:
Archival tag means a device that is implanted or affixed to a fish
to electronically record scientific information about the migratory
behavior of that fish.
Atlantic HMS means Atlantic tunas, billfish, oceanic sharks, and
swordfish.
Atlantic Ocean, as used in this part, includes the North and South
Atlantic Oceans, the Gulf of Mexico, and the Caribbean Sea.
Bottom longline means a monofilament longline with greater than 3
hooks or leaders that is maintained on the ocean floor along its length
by weights and is marked on the surface by marker buoys and/or high
flyers.
BSD tag means the numbered tag affixed to a BFT issued by any
country in conjunction with a catch statistics information program and
recorded on a BSD.
Cape Cod Bay closed area means the area bounded by lines connecting
the following coordinates: 42 deg.04.8' N. lat., 70 deg.10' W. long.;
42 deg.12' N' lat., 70 deg.15' W. long; 42 deg.12' N. lat., 70 deg. 30'
W. long.; 41 deg.46.8' N. lat., 70 deg.30' W. long.; and on the south
and east by the interior shore line of Cape Cod, MA.
Certificate of Eligibility (COE) means the certificate that
accompanies a shipment of imported swordfish indicating that the
swordfish or swordfish parts are not from the Atlantic Ocean or if they
are, are derived from a swordfish weighing more than 33 lb (15 kg) dw.
CFL (curved fork length) means the length of a fish measured from
the tip of the upper jaw to the fork of the tail along the contour of
the body in a line that runs along the top of the pectoral fin and the
top of the caudal keel.
CK means the length of a fish measured along the body contour,
i.e., a curved measurement, from the cleithrum to the anterior portion
of the caudal keel. The cleithrum is the semicircular bony structure at
the posterior edge of the gill opening. The measurement must be made
from the point on the cleithrum that provides the shortest possible
measurement along the body contour.
Convention means the International Convention for the Conservation
of Atlantic Tunas, signed at Rio de Janeiro, Brazil, on May 14, 1966,
20 U.S.T. 2887, TIAS 6767, including any amendments or protocols
thereto, which are binding upon the United States.
Conventional tag means a numbered, flexible ribbon that is
implanted or affixed to a fish that is released back into the ocean.
The tag allows the identification of that fish in the event it is
recaptured.
Dealer tag means the numbered, flexible, self-locking ribbon issued
by NMFS for the identification of BFT sold to a permitted dealer as
required under Sec. 635.5 (b)(2)(ii).
Dehooking device means a device intended to remove a hook imbedded
in a fish in order to release the fish with minimum damage.
Downrigger means a piece of equipment attached to a vessel and with
a weight on a cable that is in turn attached to hook-and-line gear to
maintain lures or bait at depth while trolling, and that has a release
system to retrieve the weight by rod and reel or by manual, electric,
or hydraulic winch after a fish strike on the hook-and-line gear.
Dress means to remove head, viscera, and fins, but does not include
removal of the backbone, halving, quartering, or otherwise further
reducing the carcass.
Dressed weight (dw) means the weight of a fish after it has been
dressed.
EFP means an exempted fishing permit issued pursuant to
Sec. 600.745 of this chapter and to Sec. 635.32.
Eviscerated means a fish that has only the alimentary organs
removed.
Export means shipment of fish or fish products to a destination
outside the customs territory of the United States for which a
Shipper's Export Declaration (Customs Form 7525) is required. Atlantic
HMS destined from one foreign country to another, which transits the
United States and for which a Shipper's Export Declaration is not
[[Page 3173]]
required to be filed, will not be considered an export under this
definition.
Exporter means the principal party responsible for effecting export
from the United States as listed on the Shipper's Export Declaration
(Customs Form 7525) or any authorized electronic medium available from
U.S. Customs.
First transaction in the United States means the time and place at
which the swordfish, is filleted, cut into steaks, or processed in any
way that physically alters it after being landed in or imported into
the United States.
Fishing record means all records of navigation and operations, as
well as all records of catching, harvesting, transporting, landing,
purchase, or sale.
Fishing vessel means any vessel engaged in fishing, processing, or
transporting fish loaded on the high seas, or any vessel outfitted for
such activities.
Fishing year means--
(1) For Atlantic tunas, billfish, and swordfish--June 1 through May
31 of the following year; and
(2) For shark--January 1 through December 31.
FL (fork length) means the straight-line measurement of a fish from
the tip of the snout to the fork of the tail. The measurement is not
made along the curve of the body.
Florida Straits means the area off the east coast of Florida
between 26 deg. N. lat. and 28 deg. N. lat. and 78 deg. W. long. and
81 deg. W. long.
Giant BFT means an Atlantic BFT measuring 81 inches (206 cm) CFL or
greater.
Great South Channel closed area means the area bounded by lines
connecting the following coordinates: 41 deg.40' N. lat., 69 deg.45' W.
long.; 41 deg.00' N. lat., 69 deg.05' W. long.; 41 deg.38' N. lat.,
68 deg.13' W. long.; and 42 deg.10' N. lat., 68 deg.31' W. long.
Highly migratory species (HMS) means bluefin, bigeye, yellowfin,
albacore, and skipjack tunas; swordfish; oceanic sharks (listed in
Appendix A to this part); white marlin; blue marlin; sailfish; and
longbill spearfish.
ILAP means an initial limited access permit issued pursuant to
Sec. 635.4.
Import means the release of HMS from a nation's Customs' custody
and entry into the territory of that nation. HMS are imported into the
United States upon release from U.S. Customs' custody pursuant to
filing an entry summary document (Customs Form 7501) or any authorized
electronic medium. HMS destined from one foreign country to another,
which transit the United States and for which an entry summary is not
required to be filed, are not considered an import under this
definition.
Importer, for the purpose of HMS imported into the United States,
means the importer of record as declared on U.S. Customs Form 7501 or
any authorized electronic medium.
Intermediate country means a country that exports to the United
States HMS previously imported by that nation. Shipments of HMS through
a country on a through bill of lading or in another manner that does
not enter the shipments into that country as an importation do not make
that country an intermediate country under this definition.
LAP means a limited access permit issued pursuant to Sec. 635.4.
Large coastal shark means one of the species, or a part thereof,
listed in paragraph (a) of Table 1 in Appendix A to this part.
Large medium BFT means a BFT measuring 73 to < 81 inches (185 to <
206 cm) CFL.
Large school BFT means a BFT measuring 47 to < 59 inches (119 to <
150 cm) CFL.
LJFL (lower jaw-fork length) means the straight-line measurement of
a fish from the tip of the lower jaw to the fork of the caudal fin. The
measurement is not made along the curve of the body.
Management area (1) For Atlantic tunas, blue marlin, longbill
spearfish, and white marlin, means the Atlantic Ocean,
(2) For sailfish, means the Atlantic Ocean north of 5 deg. N. lat.
and west of 30 deg. N. long.,
(3) For North Atlantic swordfish, means the Atlantic Ocean north of
5 deg. N. lat.,
(4) For South Atlantic swordfish, means the Atlantic Ocean south of
5 deg. N. lat., and
(5) For sharks, means the western north Atlantic ocean, including
the Gulf of Mexico and the Caribbean Sea.
Mid-Atlantic Bight means the area off the mid-Atlantic states
between 35 deg. N. lat. and 43 deg. N. lat. to 71 deg. W. long.
Non-ridgeback shark means one of the species, or a part thereof,
listed in paragraph (a)(2) of Table 1 in Appendix A to this part.
North Atlantic swordfish or north Atlantic Swordfish stock means
those swordfish in the Atlantic Ocean north of 5 deg. N. lat.
Office Director means the Director of the Office of Sustainable
Fisheries, NMFS.
Operator, with respect to any vessel, means the master or other
individual on board and in charge of that vessel.
Pelagic shark means one of the species, or a part thereof, listed
in paragraph (c) of Table 1 in Appendix A to this part.
PFCFL (pectoral fin curved fork length) means the length of a
beheaded fish from the dorsal insertion of the pectoral fin to the fork
of the tail measured along the contour of the body in a line that runs
along the top of the pectoral fin and the top of the caudal keel.
Prohibited shark means one of the species, or a part thereof,
listed in paragraph (d) of Table 1 in Appendix A to this part.
Regional Administrator (RA) means the director of the NMFS Regional
Office in either the Northeast region (Gloucester, MA) or the Southeast
region (St. Petersburg, FL), whichever is applicable.
Restricted-fishing day (RFD) means a day, beginning at 0000 hours
and ending at 2400 hours local time, during which a person aboard a
vessel for whom a General Category Permit for Atlantic Tunas has been
issued may not fish for, possess, or retain a BFT.
Ridgeback shark means one of the species, or a part thereof, listed
in paragraph (a)(1) of Table 1 in Appendix A to this part.
School BFT means a BFT measuring 27 to < 47 inches (69 to < 119 cm)
CFL.
Shark means one of the species, or a part thereof, listed in Tables
1 and 2 in Appendix A to this part.
Small coastal shark means one of the species, or a part thereof,
listed in paragraph (b) of Table 1 in Appendix A to this part.
Small medium BFT means a BFT measuring 59 to < 73 inches (150 to <
185 cm) CFL.
South Atlantic swordfish or south Atlantic swordfish stock means
those swordfish in the Atlantic Ocean south of 5 deg. N. lat.
Southeastern United States closed area means the coastal waters
between 28 deg.00' N. lat. and 30 deg.15' N. lat. from the coast to 5
nm (9 km) offshore; and coastal waters between 30 deg.15' N. lat. and
31 deg.15' N. lat. from the coast to 15 nm (28 km) offshore.
Tournament means any fishing competition involving Atlantic HMS in
which participants must register or otherwise enter or in which a prize
or award is offered for catching such fish.
Trip limit means the total allowable take from a single trip as
defined in this section.
Weighout slip means a document provided by a person who weighs fish
or parts thereof that are landed from a fishing vessel to the owner or
operator of the vessel. A weighout slip for sharks prior to or as part
of a commercial transaction involving shark carcasses or
[[Page 3174]]
fins must record the weights of carcasses and any detached fins. A
document, such as a ``tally sheet,'' ``trip ticket,'' or ``sales
receipt,'' that contains such information is considered a weighout
slip.
Young school BFT means an Atlantic BFT measuring less than 27
inches (69 cm) CFL.
Sec. 635.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705 of this chapter and in paragraphs (b) and (c) of this
section.
(b) In accordance with regulations issued under the Marine Mammal
Protection Act of 1972, as amended, it is unlawful for a commercial
fishing vessel, a vessel owner, or a master or operator of a vessel to
engage in fisheries for HMS in the Atlantic Ocean, unless the vessel
owner or authorized representative has complied with specified
requirements including, but not limited to, registration, exemption
certificates, decals, and reports, as contained in part 229 of this
title.
(c) General provisions on facilitation of enforcement, penalties,
and enforcement policy applicable to all domestic fisheries are set
forth in Secs. 600.730, 600.735, and 600.740 of this chapter,
respectively.
(d) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing, or exempted educational activity, as specified in Sec. 600.745
of this chapter or in Sec. 635.32.
Sec. 635.4 Permits and fees.
(a) Permits. (1) Each permit issued by NMFS authorizes certain
activities, and persons may not conduct these activities from a vessel
without the appropriate permit, unless otherwise authorized by NMFS.
(2) The owner or operator of a vessel of the United States must
have the appropriate valid permit on board the vessel to fish for,
take, retain, or possess any Atlantic HMS and must make such permit
available for inspection upon request by NMFS. The owner or operator of
the vessel is responsible for satisfying all of the requirements
associated with obtaining, maintaining, and making available for
inspection, all valid vessel permits.
(3) Limited access vessel permits issued pursuant to this part do
not represent either an absolute right to the resource or any interest
that is subject to the takings provision of the Fifth Amendment of the
U.S. Constitution. Rather, such permits represent only a harvesting
privilege that may be revoked, suspended, or amended subject to the
requirements of the Magnuson-Stevens Act or other applicable law.
(4) A vessel permit issued upon the qualification of an operator is
valid only when that person is the operator of the vessel.
(5) A dealer permit issued under this section, or a copy thereof,
must be available at each of the dealer's places of business. A dealer
must present the permit or a copy for inspection upon the request of a
NMFS-authorized officer.
(6) Upon transfer of Atlantic HMS, the owner or operator of the
harvesting vessel must present for inspection the vessel's Atlantic
tunas, shark or swordfish permit to the receiving dealer. The permit
must be presented prior to completing the landing report specified at
Sec. 635.5 (a)(1), (a)(2) and (b)(2)(i).
(7) Sanctions and denials. A permit issued under this section may
be revoked, suspended, or modified, and a permit application may be
denied, in accordance with the procedures governing enforcement-related
permit sanctions and denials found at subpart D of 15 CFR part 904.
(8) Alteration. A vessel or dealer permit that is altered, erased,
or mutilated is invalid.
(9) Replacement. NMFS will issue a replacement permit. An
application for a replacement permit will not be considered a new
application. An appropriate fee, consistent with paragraph (h) of this
section, may be charged for issuance of the replacement permit.
(b) Fees. NMFS may charge a fee for each application for a permit
or each transfer or replacement of a permit. The amount of the fee is
calculated in accordance with the procedures of the NOAA Finance
Handbook, available from NMFS, for determining administrative costs of
each special product or service. The fee may not exceed such costs and
is specified in the instructions provided with each application form.
Each applicant must include the appropriate fee with each application
or request for transfer or replacement. A permit will not be issued to
anyone who fails to pay the fee.
(c) HMS Charter/Headboat Permits. (1) Vessels that are used as
charter boats or headboats to fish for, take, retain, or possess any
Atlantic HMS must be permitted to do so. Such permit requirement may be
met by the HMS Charter/Headboat Permit issued under this Sec. 635.4 or
by a Charter/Headboat Permit issued under Sec. Sec. 622.4 or 648.4.
(2) The operator of a charter vessel or headboat that has been
issued an HMS Charter/Headboat Permit must also have a valid merchant
marine license or uninspected passenger vessel license while fishing
for or possessing Atlantic HMS.
(d) Atlantic Tunas Vessel Permits. (1) The owner or operator of
each vessel used to fish for or take Atlantic tunas or on which
Atlantic tunas are retained or possessed must obtain, in addition to
any other required permits, one and only one of six category permits:
Angling, General, Harpoon, Longline, Purse Seine, or Trap.
(2) Persons on board a vessel with a valid Atlantic Tunas Vessel
Permit may fish for, take, retain, or possess Atlantic tunas, but only
in compliance with the quotas, catch limits, and size classes
applicable to the permit category of the vessel from which he or she is
fishing. Persons may sell Atlantic tunas only if the harvesting
vessel's valid permit is in the General, Harpoon, Charter/Headboat,
Longline, Purse Seine, or Trap Category of the Atlantic Tunas Permit.
Persons may not sell Atlantic tunas caught on board a vessel with a
permit in the Angling Category.
(3) Except for purse seine vessels for which that permit has been
issued under this section, a vessel owner may change the category of
the vessel's permit no more than once each year and only from January 1
through May 15. From May 16 through December 31, the vessel's permit
category may not be changed, regardless of a change in the vessel's
ownership.
(4) An Atlantic Tunas Longline Category Permit can be obtained for
a vessel only if the owner or operator of the vessel has both a shark
directed or incidental catch limited access permit and a swordfish
directed or incidental catch limited access permit.
(5) An owner of a vessel with an Atlantic Tunas Permit in the Purse
Seine Category may transfer the permit to another vessel that he or she
owns or to a vessel owned by someone else. In either case, a written
request for transfer must be submitted to NMFS, to a designated
address, accompanied by an application for the new vessel and the
existing permit. NMFS will issue no more than 5 Atlantic Tunas Purse
Seine Category Permits.
(e) Commercial Shark Vessel Limited Access Permits. (1) The owner
or operator of each vessel used to fish for or take Atlantic sharks or
on which Atlantic sharks are retained or possessed with an intention to
sell or that are sold must obtain, in addition to any other required
permits, only one of two types of commercial limited access shark
permits: shark directed limited access permit or shark incidental
limited access permit. See Sec. 635.16
[[Page 3175]]
regarding the initial issuance of these two types of permits. It is a
rebuttable presumption that the owner or operator of a vessel on which
sharks are possessed in excess of the recreational catch limits are
intended to be sold.
(2) A commercial limited access permit for shark is not required if
the vessel is recreational fishing under recreational catch limits, is
operating under a shark EFP, or is fishing exclusively within state
waters.
(3) As of June 1, 1999, the only valid Federal commercial vessel
permits for shark are those that have been issued under the limited
access criteria specified in Sec. 635.16.
(4) An owner or operator issued a permit pursuant to this part must
agree, as a condition of such permit, that the vessel's shark fishing,
catch, and gear are subject to the requirements of this part during the
period of validity of the permit, without regard to whether such
fishing occurs in the EEZ, landward of the EEZ, or outside the EEZ, and
without regard to where such shark or gear are possessed, taken, or
landed. However, when a vessel fishes in the waters of a state that has
more restrictive regulations on shark fishing, those more restrictive
regulations may be applied by that state in its waters.
(f) Commercial Swordfish Vessel Limited Access Permits. (1) The
owner or operator of each vessel used to fish for or take Atlantic
swordfish or on which Atlantic swordfish are retained or possessed with
an intention to sell or that are sold must obtain, in addition to any
other required permits, only one of three types of commercial limited
access swordfish permits: swordfish directed limited access permit,
swordfish incidental limited access permit, or swordfish handgear
limited access permit. See Sec. 635.16 regarding the initial issuance
of these three types of permits.
(2) A commercial Federal permit for swordfish is not required if
the vessel is recreational fishing.
(3) As of June 1, 1999, the only valid commercial Federal vessel
permits for swordfish are those that have been issued under the limited
access criteria specified in Sec. 635.16.
(4) A limited access permit for swordfish is valid only when the
vessel has on board a valid commercial limited access permit for shark
and an Atlantic Tunas Longline Category Permit.
(g) Dealer permits--(1) Atlantic tunas. A valid dealer permit for
Atlantic tunas is required to receive, purchase, trade for, or barter
for Atlantic tunas from a fishing vessel of the United States an
Atlantic tuna or import or export bluefin tuna, regardless of origin.
(2) Shark. A valid dealer permit for shark is required to receive,
purchase, trade for, or barter for an Atlantic shark from a fishing
vessel of the United States.
(3) Swordfish. A valid dealer permit for swordfish is required to
receive, purchase, trade for, or barter for an Atlantic swordfish from
a fishing vessel of the United States or import a swordfish, regardless
of origin.
(h) Applications for permits. Except for ILAPs, an owner or
operator or dealer must submit a complete application and required
supporting documents at least 30 days before the date on which the
permit is to be made effective. Application forms and instructions for
their completion are available from the Office Director (ILAP) or the
RA (Dealer Permit and LAP).
(1) Atlantic Tunas Vessel and HMS Charter/Headboat Permits. (i) An
owner must provide all information concerning his or her
identification, vessel, gear used, fishing areas, fisheries
participated in, the corporation or partnership owning the vessel, and
income requirements requested by NMFS and included on the application
form.
(ii) An owner must also submit a copy of the vessel's valid U.S.
Coast Guard certificate of documentation or, if not documented, a copy
of its valid state registration certificate and any other information
that may be necessary for the issuance or administration of the permit
as requested by NMFS. The owner must submit such information to a
designated NMFS address.
(iii) NMFS may require an applicant to provide documentation
supporting the application before a permit is issued or to substantiate
why such permit should not be revoked or otherwise sanctioned under
paragraph (a)(7) of this section.
(2) Limited access permits for swordfish and shark. See Sec. 635.16
for the issuance of ILAPs for shark and swordfish. See paragraph (l) of
this section for transfers of ILAPs and LAPs for shark and swordfish.
See paragraph (m) of this section for renewals of LAPs for shark and
swordfish.
(3) Dealer permits. (i) An applicant for a dealer permit must
provide all the information requested on the application form,
including the company name, principal place of business, mailing
address, and telephone number.
(ii) An applicant must also submit a copy of each state
wholesaler's license held by the dealer and, if a business is owned by
a corporation or partnership, the corporate or partnership documents
(copy of Certificate of Incorporation and Articles of Association or
Incorporation) along with the names, addresses, and telephone numbers
of all shareholders owning 5 percent or more of the corporation's
stock.
(iii) An applicant must also submit any other information that may
be necessary for the issuance or administration of the permit, as
requested by NMFS.
(i) Change in application information. A vessel owner or operator
or dealer must report any change in the information contained in an
application for a permit within 30 days after such change. The report
must be submitted in writing to the Office Director or the RA. In the
case of a vessel permit for Atlantic tunas or an HMS Charter/Headboat
Permit, the vessel owner must report the change to NMFS by phone or
internet. A new permit will be issued to incorporate the new
information, subject to limited access provisions specified in
paragraph (l)(2) of this section. For certain informational changes,
NMFS may require supporting documentation before a new permit will be
issued. If a change in the permit information is not reported within 30
days, the permit is void as of the 31st day after such change.
(j) Permit issuance. (1) Except for ILAPs, the Office Director or
the RA will issue a permit within 30 days of receipt of a complete and
qualifying application. An application is complete when all requested
forms, information, and documentation have been received.
(2) NMFS will notify the applicant of any deficiency in the
application. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(3) For issuance of ILAPs for shark and swordfish, see Sec. 635.16.
(k) Duration. A permit issued under this section remains valid for
the period specified on it unless it is revoked, suspended, or modified
pursuant to subpart D of 15 CFR part 904, the vessel or dealership is
sold, or any other information previously submitted on the application
changes, as specified in paragraph (i) of this section.
(l) Transfer-- (1) General. A permit issued under this section is
not transferable or assignable to another vessel or owner or operator,
or dealer; it is valid only for the vessel and owner or operator, or
dealer to which it is issued. If a person acquires a vessel or
dealership and wants to conduct activities for which a permit is
required, that person must apply for a permit in accordance with the
provisions of paragraph (h) of this section; if the acquired vessel is
permitted in the
[[Page 3176]]
Atlantic tunas fishery in the Purse Seine Category, in accordance with
paragraph (d)(5) of this section; or, if the acquired vessel is
permitted in either the shark or swordfish fishery, in accordance with
paragraph (l)(2) of this section. If the acquired vessel or dealership
is currently permitted, an application must be accompanied by the
original permit and a copy of a signed bill of sale or equivalent
acquisition papers.
(2) Shark and swordfish commercial limited access permits. (i)
Subject to the restrictions on upgrading the harvesting capacity of
permitted vessels in paragraph (l)(2)(ii) of this section and the
limitations on ownership of permitted vessels in paragraph (l)(2)(iii)
of this section, an owner or operator may transfer a shark or swordfish
ILAP or LAP to another vessel that he or she owns or to a vessel owned
by another person. Directed handgear ILAPs and LAPs may be transferred
to another vessel but only for use with handgear and subject to
upgrading restrictions in paragraph (l)(2)(ii) of this section.
Incidental catch ILAPs and LAPs are not subject to the requirements
specified in paragraphs (l)(2)(ii) and (iii) of this section.
(ii) Limitations are imposed on upgrading the fishing capacity of
vessels that have commercial permits for shark or swordfish. These
limitations apply to a permitted vessel or to a transfer or replacement
vessel when the permit is transferred. Specifically, an owner or
operator may not upgrade the permitted vessel or transfer the permit to
another vessel if the upgrade or transfer results in an increase in
horsepower of more than 20 percent, or an increase in length overall,
gross registered tonnage, net tonnage, or hold capacity of more than 10
percent from the horsepower, length overall, gross registered tonnage,
net tonnage, or hold capacity of the vessel issued an ILAP. Only one
upgrade in each of these vessel characteristics is allowed. Upgrades to
a vessel=s length overall, gross registered tonnage, net tonnage, or
hold capacity must be made at the same time. However, an upgrade in
horsepower may be made separately from an upgrade in the other vessel
characteristics listed here.
(iii) No person may own or control more than 5 percent of the
vessels that have swordfish directed commercial permits or more than 5
percent of the vessels that have shark directed commercial permits.
(iv) For ILAP or LAP transfers to a replacement vessel, an owner of
a vessel issued an ILAP or LAP pursuant to this part must request the
RA to transfer the ILAP or LAP to another vessel owned by the same
owner, subject to requirements specified in paragraph (l)(2)(ii) of
this section, if applicable. The owner must return the current valid
ILAP or LAP to the RA with a complete application for a LAP, as
specified in paragraph (h) of this section, for the replacement vessel.
Copies of both vessels' documentation or state registration must
accompany a completed application.
(v) For ILAP or LAP transfers to a different person, the transferee
of an ILAP or LAP must request the RA to transfer the original ILAP or
LAP, subject to requirements specified in paragraphs (l)(2)(ii) and
(iii) of this section, if applicable. The following must accompany the
completed application: The original ILAP or LAP with signatures of both
parties on the back of the permit, the bill of sale of the ILAP or LAP,
and copies of both vessels' documentation or state registration.
(vi) For ILAP or LAP transfers with the sale of the permitted
vessel, the transferee of the vessel and ILAP or LAP issued to that
vessel must request the RA to transfer the ILAP or LAP, subject to
requirements specified in paragraphs (l)(2)(ii) and (iii) of this
section, if applicable. The following must accompany the completed
application: The original ILAP or LAP with signatures of both parties
on the back of the permit, the bill of sale of the ILAP or LAP and the
vessel, and a copy of the vessels' documentation or state registration.
(vii) The owner or operator of a vessel issued an ILAP or LAP who
sells the permitted vessel, but retains the ILAP or LAP, must notify
the RA within 30 days after the sale of the change in application
information in accordance with paragraph (i) of this section. If the
owner or operator wishes to transfer the ILAP or LAP to a replacement
vessel, he/she must apply and follow the procedures in paragraph
(l)(2)(iv) of this section.
(viii) As specified in paragraph (f)(4) of this section, a directed
or incidental ILAP or LAP for swordfish, a directed or an incidental
catch ILAP or LAP for shark, and an Atlantic tuna Longline category
permit are required to fish in the swordfish fishery. Accordingly, a
LAP for swordfish obtained by transfer without either a directed or
incidental catch shark LAP or an Atlantic Tunas Longline Category
Permit will not entitle an owner or operator to use a vessel to fish in
the swordfish fishery.
(m) Renewal--(1) General. Persons must apply annually for a vessel
or dealer permit for Atlantic tunas, sharks, swordfish and HMS Charter/
Headboats. A renewal application must be submitted to the RA at least
30 days before a permit's expiration to avoid a lapse of permitted
status. NMFS will renew a permit provided that the specific
requirements for the requested permit are met, all reports required
under the Magnuson-Stevens Act have been submitted, including those
described in Sec. 635.5, and the applicant is not subject to a permit
sanction or denial under paragraph (a)(7) of this section.
(2) Limited access permits for shark and swordfish. As of June 1,
2000, the owner or operator of a vessel of the United States that
fishes for, possesses, lands, or sells shark or swordfish from the
management unit, or takes or possesses such shark or swordfish as
incidental catch, must have a LAP issued pursuant to the requirements
in Sec. 635.4(e) and (f). However, any ILAP that expires June 30,
2000, is valid through that date. Only valid ILAP or LAP holders in the
preceding year are eligible for a LAP.
Sec. 635.5 Recordkeeping and reporting.
(a) Vessels--(1) Logbooks. If an owner or operator of an HMS
Charter/Headboat vessel, an Atlantic Tunas vessel, or a commercial
shark or swordfish vessel, for which a permit has been issued under
Sec. 635.4 (a),(c),(d), (e), and (f) respectively, is selected in
writing by NMFS, he must maintain a fishing record on a logbook
specified by NMFS. Entries are required on the vessel's fishing effort,
and the number of fish landed and discarded. Entries on a day's fishing
activities must be entered on the form within 24 hours and, for a 1-day
trip, before offloading. The owner or operator must submit the form
postmarked within 7 days of offloading all Atlantic HMS.
(2) Weighout slips. If an owner or operator is required to maintain
and submit logbooks under paragraph (a)(1) of this section, and
Atlantic HMS harvested on a trip are sold, the owner or operator must
obtain and submit copies of weighout slips for those fish. Each
weighout slip must show the dealer to whom the fish were transferred,
the date they were transferred, and the carcass weight of each fish for
which individual weights are normally recorded. For fish that are not
individually weighed, a weighout slip must record total weights by
species and market category. The owner or operator must also submit
copies of weighout slips with the logbook forms required under
paragraph (a)(1) of this section.
(b) Dealers. Persons who have been issued a dealer permit under
Sec. 635.4, must submit reports to NMFS (as prescribed by NMFS) and
maintain records as follows:
[[Page 3177]]
(1) Atlantic HMS other than BFT. (i) Dealers must report Atlantic
tunas (including BFT), Atlantic swordfish and swordfish imports, and
Atlantic sharks received on the first through the 15th of each month;
the report must be submitted to NMFS postmarked not later than the 20th
of that month. Reports of such fish received on the 16th through the
last day of each month must be postmarked not later than the 5th of the
following month. If a dealer did not receive Atlantic tunas, swordfish
or swordfish imports, or sharks during a reporting period, he must
submit a report to a designated NMFS address so stating, and the report
must be postmarked as specified for the reporting period.
(ii) The reporting requirement of paragraph (b)(1)(i) of this
section may be satisfied by a dealer if he provides a copy of each
appropriate weighout slip and/or sales record, provided such weighout
slip and/or sales record by itself or combined with the form available
from NMFS includes all of the required information and identifies fish
to the species level.
(iii) In lieu of providing a report required under paragraph
(b)(1)(i) of this section to NMFS by mail, the dealer may give the
report to a state or Federal fishery port agent designated by NMFS. A
report given to such port agent must be delivered not later than the
prescribed postmark date for the reporting period.
(2) BFT--(i) Reports of BFT. The dealer must submit a completed
landing report to a designated NMFS location by electronic facsimile
(fax) or an Interactive Voice Response System on BFT received not later
than 24 hours from receipt. The landing report must be signed by the
permitted vessel's owner or operator immediately upon transfer of the
fish and must verify the name and permit number of the vessel that
landed the fish. The dealer must inspect the vessel's permit to verify
that the required vessel name and vessel permit number are correctly
recorded on the landing report. In addition, the dealer must submit
that landing report to the designated NMFS address postmarked within 24
hours of the purchase or receipt of each BFT. The dealer must also
submit a biweekly report on forms supplied by NMFS. For BFT received on
the first through the 15th of each month, the dealer must submit the
biweekly report forms to NMFS postmarked not later than the 20th of
that month. Reports of receipt of such BFT received on the 16th through
the last day of each month must be postmarked not later than the 5th of
the following month.
(ii) Dealer Tags. NMFS will issue numbered dealer tags to each
person issued a dealer permit for Atlantic tunas under Sec. 635.4. A
dealer tag is not transferable and is usable only by the dealer to whom
it is issued. Dealer tags may not be reused once affixed to a tuna or
recorded on a package, container, or report.
(A) Affixing dealer tags. A dealer or a dealer's agent must affix a
dealer tag to each BFT purchased or received immediately upon its
offloading from a vessel. The dealer or dealer's agent must affix the
tag to the tuna between the fifth dorsal finlet and the keel.
(B) Removal of dealer tags. A dealer tag affixed to any BFT under
paragraph (b)(2)(ii)(A) of this section or a BSD tag affixed to an
imported BFT must remain on the tuna until the tuna is cut into
portions. If the BFT or BFT parts subsequently are packaged for
transport for domestic commercial use or for export, the dealer or BSD
tag number must be written legibly and indelibly on the outside of any
package or container. Such tag number must be recorded on any document
accompanying shipment of BFT for commercial use or export.
(3) Recordkeeping. Dealers must retain at their place of business a
copy of each written report required under paragraphs (b)(1)(i) and
(b)(2)(i) of this section for a period of 2 years from the date on
which each report was required to be submitted.
(c) BFT not sold. (1) Except as specified in paragraph (c)(2) of
this section, persons that catch and land a large medium or giant BFT
and do not transfer it to a dealer who has a dealer permit for Atlantic
tunas, must contact NMFS enforcement at the time of landing such BFT
and, if requested, make the tuna available so that a NMFS enforcement
agent may inspect the fish and attach a tag to it.
(2) Persons that catch and land a large medium or giant BFT that is
counted against the Angling category quota must report it through the
automated catch reporting system by calling 1-888-USA-TUNA. In any
state where a NMFS or state-level harvest tag or catch-card reporting
program is in effect for school, large school, or small medium BFT,
such tags must also be used on large medium and giant BFT reported
under this paragraph (c)(2).
(d) Anglers. In addition to the requirements in paragraph (c) of
this section, the owner of a vessel that has an Angling category permit
for Atlantic tunas will be notified by NMFS of the reporting
requirements and procedures for school, large school, and small medium
BFT. Alternative reporting procedures may be established by NMFS in
cooperation with states and may include telephone, dockside or mail
surveys, mail-in or phone-in reports, tagging programs, or mandatory
BFT check-in stations. A statistically based sampling of persons
fishing under the Angling category may be used for these alternative
reporting programs. Once notified by NMFS of the reporting requirmeents
and procedures, each person so notified must comply with those
requirements and procedures.
(e) Tournament operators. Persons that conduct a fishing tournament
involving scores or awards for the catch of Atlantic HMS, whether or
not retained, from a port in an Atlantic coastal state, including the
U.S. Virgin Islands and Puerto Rico, must notify NMFS of the purpose,
dates, and location of the tournament at least 4 weeks prior to
commencement of the tournament. If selected for reporting, a tournament
operator must maintain and submit to a designated NMFS address a record
of catch and effort on forms available from NMFS. Completed forms must
be submitted to NMFS postmarked not later than the 7th day after the
conclusion of the tournament and must be accompanied by a copy of the
tournament rules.
(f) Inspection. Any person authorized to carry out enforcement
activities under the regulations in this part has authority, without
warrant or other process, to inspect, at any reasonable time, catch on
board a vessel or on the premises of a dealer, logbooks, catch reports,
statistical records, sales receipts, or other records and reports
required by this part to be made, kept, or furnished. An owner or
operator of a fishing vessel that has been issued a permit under
Sec. 635.4 must allow NMFS to inspect and copy any required reports and
the records, in any form, on which the completed reports are based. A
dealer who has been issued a permit under Sec. 635.4 must allow NMFS to
inspect and copy any required reports and the records, in any form, on
which the completed reports are based.
(g) Additional data and inspection. Additional data on Atlantic HMS
may be collected by statistical reporting agents, as designees of NMFS,
and by authorized officers. A person who fishes for or possesses an
Atlantic HMS is required to make such fish or parts thereof available
for inspection by NMFS upon request.
Sec. 635.6 Vessel and gear identification.
(a) Vessel number. For the purposes of this section, a vessel's
number is either the vessel's official number issued by the U.S. Coast
Guard or an analogous state agency.
[[Page 3178]]
(b) Vessel identification. (1) An owner or operator of a vessel for
which a permit has been issued under Sec. 635.4, must display the
vessel's number--
(i) On the port and starboard sides of the deckhouse or hull and on
an appropriate weather deck, so as to be clearly visible from an
enforcement vessel or aircraft.
(ii) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(iii) At least 18 inches (45.7 cm) in height for vessels over 65 ft
(19.8 m) long and at least 10 inches (25.4 cm) in height for all other
vessels.
(2) The owner or operator of a vessel for which a permit has been
issued under Sec. 635.4 must keep the vessel's number clearly legible
and in good repair and ensure that no part of the vessel, its rigging,
its fishing gear, or any other material on board obstructs the view of
the vessel's number from an enforcement vessel or aircraft.
(c) Gear identification. (1) The owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 and that uses a
handline, harpoon, longline, or shark net, must display the vessel's
registration number or Atlantic Tunas permit number on each float
attached to a handline or harpoon and on the terminal end floats and
high-flyers (if applicable) on a longline or shark net used by the
vessel. A high-flyer is a flag, radar reflector, or radio beacon
transmitter attached to a longline. The vessel's number must be at
least 1 inch (2.5 cm) in height in block arabic numerals in a color
that contrasts with the background color of the float or high-flyer.
(2) An unmarked handline, harpoon, longline, or shark net is
illegal and may be disposed of in an appropriate manner by NMFS or an
authorized officer.
(3) Provisions on gear marking for the southeast U.S. shark
driftnet fishery to implement the Atlantic Large Whale Take Reduction
Plan are set forth in Sec. 229.32 (b) of this title.
Sec. 635.7 At-sea observer coverage.
(a) NMFS may select for observer coverage any trip of a vessel that
has a HMS Charter/Headboat permit, an Atlantic Tunas permit, or a shark
or swordfish permit, issued under Sec. 635.4 (a), (c), (d), (e), and
(f), respectively. NMFS will advise a vessel owner, in writing, when
his or her vessel is selected for observer coverage. The owner or
operator of a vessel that is selected must notify NMFS before
commencing any fishing trip that may result in the harvest of Atlantic
HMS. Notification procedures will be specified in a selection letter
sent by NMFS.
(b) The owner or operator of a vessel on which a NMFS-approved
observer is embarked must comply with Secs. 600.725 and 600.746 of this
chapter and:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any
other space used to hold, process, weigh, or store fish.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of fish for that trip.
Sec. 635.8 Educational workshops.
No later than June 1, 2000, each operator of a vessel that uses a
pelagic longline to fish for Atlantic HMS must attend an educational
workshop on measures to reduce the incidental catch of protected
species. A certificate of attendance at such workshop must be available
on such vessel and made available for inspection upon the request of
NMFS.
Sec. 635.9 Vessel monitoring.
(a) An owner or operator of a vessel that fishes for Atlantic HMS
with a pelagic longline must have an operating vessel monitoring system
(VMS) unit on board each trip. Only VMS units that have been approved
by NMFS for use in the fisheries for Atlantic HMS will meet this
requirement.
(b) No person may interfere with, tamper with, alter, damage,
disable, or impede the operation of a VMS unit, or attempt any of the
same.
(c) When a VMS unit fails, or when notified by NMFS that a unit
appears to have failed, the vessel owner or operator must communicate
to a designated NMFS location the vessel's position at least every 2
hours starting when the failure is discovered or NMFS's notification is
received. Each position so reported must be communicated to NMFS within
2 hours of the time of the position. The vessel's owner or operator
must replace or repair a failed VMS unit prior to the vessel's next
trip.
Subpart B--Limited Access
Sec. 635.16 Limited access permits.
As of June 1, 1999, the only valid commercial vessel permits for
shark and swordfish are those that have been issued under the limited
access criteria specified in this section.
(a) Eligibility requirements for ILAPs--(1) Directed permits. To be
eligible for a directed ILAP in the shark or swordfish fishery, a
vessel owner or an operator that qualified that vessel for a Federal
commercial permit must demonstrate past participation in the respective
fishery by having:
(i) Been the owner or qualifying operator of a vessel that was
issued a valid permit for the respective fishery at any time during the
period July 1, 1994, through December 31, 1997; and
(ii) Documented landings from the respective Federally permitted
vessel that he or she owned or was the qualifying operator of at least:
(A) One hundred and two sharks per year for any 2 calendar years
during the period January 1, 1991, through December 31, 1997, provided
the landings after July 1, 1993, occurred when the permit was valid; or
(B) Twenty-five swordfish per year for any 2 calendar years during
the period January 1, 1987, through December 31, 1997, provided the
landings occurred when the permit was valid; and
(iii) Been the owner or qualifying operator of a vessel that:
(A) Had a valid Federal shark permit at any time during the period
July 1, 1998, through August 4, 1998, or
(B) Had a valid Federal swordfish permit at any time during the
period June 1, 1998, through August 31, 1998.
(2) Incidental catch permits. To be eligible for an incidental ILAP
in the shark or swordfish fishery, a vessel owner or an operator that
qualified that vessel for a Federal commercial permit must demonstrate
past participation in the respective fishery by having:
(i) Been the owner or qualifying operator of a vessel that was
issued a valid permit for the respective fishery at any time during the
period July 1, 1994, through December 31, 1997; and
(ii) Documented landings from the respective federally permitted
vessel that he or she owned or was the qualifying operator of at least:
(A) Seven sharks during the period January 1, 1991, through
December 31, 1997, provided the landings after July 1, 1993, occurred
when the permit was valid; or
(B) Eleven swordfish during the period January 1, 1987, through
December 31, 1997, provided the
[[Page 3179]]
landings occurred when the permit was valid; and
(iii) Been the owner or qualifying operator of a vessel that:
(A) Had a valid Federal shark permit at any time during the period
July 1, 1998, through August 4, 1998, or
(B) Had a valid Federal swordfish permit at any time during the
period June 1, 1998, through August 31, 1998; and
(iv) Met either the gross income from fishing or the gross sales of
fish requirement specified in paragraph (a)(3)(i) or (ii) of this
section; or
(v) Been the owner of a vessel that had a permit for Atlantic tuna
in the Incidental category at any time from January 1, 1998, through
August 31, 1998; or
(vi) Been the owner of a vessel that is eligible for a directed or
incidental ILAP for swordfish.
(3) Handgear permits. To be eligible for a swordfish handgear
ILAP--
(i) The owner's gross income from commercial fishing (i.e., harvest
and first sale of fish) or from charter/headboat fishing must be more
than 50 percent of his or her earned income, during one of the 3
calendar years preceding the application; or
(ii) The owner's gross sales of fish harvested from his or her
vessel must have been more than $20,000, during one of the 3 calendar
years preceding the application; or
(iii) The owner must provide documentation of having been issued a
swordfish permit for use with harpoon gear; or
(iv) The owner must document his or her historical landings of
swordfish with handgear through logbook records, verifiable sales slips
or receipts from registered dealers or state landings records.
(b) Landings histories. For the purposes of the landings history
criteria in paragraphs (a)(1)(ii) and (a)(2)(ii) of this section,
(1) The owner or qualifying operator of a permitted vessel at the
time of a landing retains credit for the landing unless ownership of
the vessel has been transferred and there is a written agreement signed
by both parties to the transfer, or there is other credible written
evidence that the original owner transferred the landings history to
the new owner.
(2) A vessel's landings history may not be divided among owners. A
transfer of credit for landings history must be for the entire record
of landings under the previous owner or operator.
(3) Vessel landings histories may not be consolidated among
vessels. Owners or operators may not pool landings histories to meet
the eligibility requirements.
(4) If more than one person claims eligibility for an ILAP based on
a vessel=s ownership or permit or landings history, the applicants
claiming the ownership or permit or landings history must determine
which person will receive the ILAP. NMFS will issue only one ILAP based
on a vessel's ownership or permit or landings history.
(c) Alternative eligibility requirements for initial permits. (1)
Persons that acquired ownership of a vessel and its landings history
after December 31, 1997, are exempt from the requirement to have owned
a federally permitted shark or swordfish vessel at any time during the
period July 1, 1994, through December 31, 1997. The acquired landings
history must meet the criteria for a directed or incidental catch
permit specified in paragraph (a)(1)(ii)(A), (a)(1)(ii)(B),
(a)(2)(ii)(A) or (a)(2)(ii)(B) of this section, and such persons must
have had a valid Federal shark permit at any time during the period
July 1, 1998, through August 4, 1998, or a valid Federal swordfish
permit at any time during the period June 1, 1998, through August 31,
1998.
(2) If a person first obtained a shark or swordfish permit in 1997,
the required shark landings for a directed or incidental catch permit
specified in paragraphs (a)(1)(ii) and (a)(2)(ii) are modified as
follows:
(i) To qualify for a directed shark or swordfish ILAP,
respectively, such persons must document landings from a Federally
permitted vessel of at least:
(A) One hundred and two sharks in calendar year 1997, provided such
landings occurred when the permit was valid, or
(B) Twenty-five swordfish in calendar year 1997, provided such
landings occurred when the permit was valid.
(ii) To qualify for an incidental shark or swordfish catch ILAP,
respectively, such persons must document landings from a federally
permitted vessel of at least one shark or swordfish in calendar year
1997, provided such landings occurred when the permit was valid.
(d) Procedures for initial issue of limited access permits--(1)
Notification of status. (i) Shortly after the final rule is published,
the Division Chief will notify by certified mail each owner or
qualifying operator of a vessel that had a valid Federal shark permit
during the period July 1, 1998, through August 4, 1998, each owner of a
vessel that had a valid Federal swordfish permit during the period June
1, 1998, through August 31, 1998, and each owner of a vessel that had a
valid Atlantic tuna Incidental category permit at any time from January
1, 1998, through August 31, 1998, of the initial determination of the
owner's eligibility for a directed or incidental catch ILAP. The
Division Chief will make the initial determination based on the
criteria in paragraphs (a)(1), (a)(2), and (c)(2) of this section and
records available to NMFS. The Division Chief will not make initial
determinations of eligibility for a vessel permit under the alternative
eligibility requirements specified in paragraph (a)(3) or (c)(1) of
this section.
(ii) If NMFS determines that all qualifications for a directed or
incidental catch ILAP have been met, no further action is required-the
appropriate permit for the vessel will be included with the
notification. An ILAP issued by NMFS will be valid through the marked
expiration date.
(iii) A person must apply to the Division Chief for the appropriate
permit if--
(A) He or she does not agree with the initial determination;
(B) He or she believes that he or she qualifies for a directed or
incidental catch ILAP but did not receive a letter from the Division
Chief regarding eligibility status; or
(C) He or she believes that he or she qualifies for a swordfish
handgear permit.
(2) Applications for ILAPs. (i) Application forms and instructions
are available from the Division Chief. A completed signed application
form and required supporting documents must be submitted by the vessel
owner or operator; or in the case of a corporate-owned vessel, an
officer or shareholder; or in the case of a partnership-owned vessel, a
general partner.
(ii) An application for a directed or incidental catch ILAP must be
received by the Division Chief no later than 90 days after the final
rule is published. An application for an initial swordfish handgear
permit must be received by the Division Chief no later than 180 days
after the final rule is published. An application received by the
Division Chief after these dates will not be considered.
(iii) Each application must be accompanied by documentation showing
that the criteria for the requested permit have been met. Vessel
landings of sharks through June 30, 1993, may be documented by
verifiable sales slips or receipts from registered dealers or by state
landings records. Vessel landings of sharks after July 1, 1993, and all
vessel landings of swordfish may be documented only by fishing vessel
logbook records that NMFS received before March 2, 1998.
[[Page 3180]]
NMFS will not count a landing when the vessel did not have a valid
Federal permit.
(iv) Information submitted on an application and documentation in
support of an application are subject to verification by comparison
with Federal, state, and other records and information. Submission of
false information or documentation may result in disqualification from
initial participation in the shark fishery and may result in Federal
prosecution.
(v) If the Division Chief receives an incomplete application in a
timely manner, NMFS will notify the applicant of the deficiency. If the
applicant fails to correct the deficiency within 30 days of the date of
the Division Chief's notification, the application will be considered
abandoned.
(3) Actions on applications. Within 30 days of receipt of a
complete application, the Division Chief will take one of the following
actions:
(i) If the eligibility requirements are met, the Division Chief
will issue the appropriate ILAP which will be valid through the marked
expiration date.
(ii) If the information and documentation presented in the
application are insufficient, inconsistent with vessel ownership,
landings history, and other information available from NMFS' records,
or cannot be verified, the Division Chief will notify the applicant
that the information supplied is not adequate to warrant issuance of
the requested permit. The applicant will have 30 days to submit to the
Division Chief corroborating documents in support of the application or
to submit a revised application.
(iii) If, based on the information and documentation supplied with
the application, the Division Chief determines that the applicant does
not meet the eligibility criteria for the requested vessel permit, the
Division Chief will deny the application. Each letter of denial will be
sent via certified mail. If, based on the documentation supplied, the
Division Chief believes the applicant is qualified for an incidental
catch vessel permit instead of the requested directed ILAP, he or she
will notify the applicant of the denial of the requested directed ILAP
but will issue the incidental catch ILAP.
(4) Appeals. (i) If an application for an ILAP is denied or an
incidental catch ILAP is issued instead of the requested directed ILAP,
the applicant may appeal the denial to the Office Director. The sole
grounds for appeal is that the original denial by the Division Chief
was based on incorrect or incomplete information. No other grounds will
be considered. An appeal must be in writing, must be received by the
Office Director within 90 days of the notice of denial, must specify
the grounds for the appeal, and must include documentation supporting
the grounds for the appeal. Documentation of vessel landings of sharks
through June 30, 1993, that the Office Director may consider in support
of an appeal are verifiable sales slips or receipts from registered
dealers, or state landings records. The only documentation of vessel
landings of sharks after July 1, 1993, that the Office Director will
consider in support of an appeal are official NMFS logbook records that
NMFS received prior to March 2, 1998. The Office Director will not
accept vessel landings records of sharks dated after July 1, 1993, from
periods in which a vessel did not have a valid Federal shark permit.
The only documentation of vessel landings of swordfish that the Office
Director will consider in support of an appeal are official NMFS
logbook records that NMFS received prior to March 2, 1998. Photocopies
of documentation (e.g., permits, logbook reports) will be acceptable
for initial submission. The Office Director may request originals at a
later date, which would be returned to the appellant via certified
mail.
(ii) Upon receipt of a written appeal with supporting
documentation, the Office Director may issue a provisional ILAP that is
valid for the pendency of the appeal. This provisional permit will be
valid only for use with the specified gear and will be subject to all
regulations contained in this part.
(iii) The Office Director will appoint an appeals officer who will
review the appeal documentation and other available records. The
appeals officer will make findings and a recommendation, which shall be
advisory only, to the Office Director.
(iv) The Office Director will make a final decision on the appeal
and send the appellant notice of the decision by certified mail. The
Office Director's decision is the final administrative action of the
Department of Commerce on the application.
(v) If the appeal is denied, the provisional permit will become
invalid 5 days after receipt of the notice of denial, which NMFS will
send by certified mail. If the appeal is accepted, NMFS will issue an
appropriate permit.
(5) Contested eligibility criteria. If more than one person claims
eligibility for an ILAP based on contested vessel's ownership, permit,
or landings histories, the owners or operators claiming the ownership/
permit/landings histories must determine which person will receive the
ILAP. The Division Chief or Office Director will issue only one permit
based on a vessel's ownership/permit/landings histories. In the event
that the parties are unable to reach resolution, NMFS will not issue a
permit to any of the parties.
(e) Transfers of limited access permits. For provisions on transfer
of limited access permits, see Sec. 635.4(l).
(f) Renewals of limited access permits. For provisions on renewal
of limited access permits, see Sec. 635.4(m).
Subpart C--Management Measures
Sec. 635.19 BFT size classes.
The CFL of any BFT found with the head removed will be calculated
using the following formula: CFL equals pectoral fin curved fork length
(PFCFL) multiplied by a factor of 1.35. The CFL, as taken or determined
by conversion of the PFCFL, will be the sole criterion for determining
the size class of a beheaded BFT. This formula may be changed if
additional information becomes available by filing a notice at the
Office of the Federal Register of the new formula.
Sec. 635.20 Size limits.
(a) General. CFL will be the sole criterion for determining the
size and/or size class of whole (head on) Atlantic tunas.
(b) BFT, bigeye tuna, and yellowfin tuna. (1) No person may take,
retain, or possess a BFT, bigeye tuna, or yellowfin tuna in the
Atlantic Ocean that is less than 27 inches (69 cm)CFL;
(2) Further, no person may retain or possess a BFT with the head
removed that is less than 20 inches (51 cm), PFCFL.
(3) No person may remove the head of a bigeye tuna or yellowfin
tuna if the remaining portion is less than 27 inches (69 cm), CFL.
(c) Billfish. No person may take a billfish from, or retain or
possess a billfish in its management area that is less than the
following minimum size limits:
(1) Blue marlin--99 inches (251 cm), LJFL.
(2) White marlin--66 inches (168 cm), LJFL.
(3) Sailfish--63 inches (160 cm), LJFL.
(d) Sharks. No person may take, retain, or possess any species
classified as a ridgeback LCS shark in or from the Atlantic EEZ, that
is less than 54 inches (137 cm), FL, or, if the head and fins have been
removed, 30 inches (76 cm), from the forward edge of the cut where the
first dorsal fin is removed to the precaudal pit. If the precaudal pit
has been removed, such measurement will be to the posterior edge of the
carcass.
[[Page 3181]]
(e) Swordfish. (1) No person may take, retain, or possess a
swordfish on board a fishing vessel in the Atlantic Ocean that is less
than 29 inches (73 cm), CK. CK length will be the sole criterion for
determining the size of Atlantic swordfish caught.
(2) A swordfish or part thereof that weighs less than 33 lb (15
kg), dw, is deemed to have been harvested by a vessel of the United
States and in violation of the minimum size if less than 29 inches (73
cm) CK unless it is accompanied by a certificate of eligibility. The
certificate should attest that the swordfish was imported, and either
harvested from other than the Atlantic Ocean, or that the fish part was
derived from an Atlantic swordfish that weighed at least 33 lb (15 kg)
dw at harvest. Refer to Sec. 635.46(b) for the requirements related to
the certificate of eligibility.
(3) A swordfish or part thereof will be monitored for compliance
with the minimum size requirement from the time it is landed in or
imported into the United States to the first point of transaction and
including the time and place that it is filleted, cut into steaks, or
processed in any way that physically alters it.
Sec. 635.21 Gear operation and deployment restrictions.
(a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested
in its management area that is not retained must be released in a
manner that will ensure maximum probability of survival, but without
removing the fish from the water.
(2) If a billfish is caught by a hook, the fish must be released by
cutting the line near the hook or by using a dehooking device, in
either case without removing the fish from the water.
(b) General. No person may use any gear to fish for Atlantic HMS
other than those gears specifically authorized in this part. A vessel
using or having on board in the Atlantic Ocean any unauthorized gear
may not have on board an Atlantic HMS.
(c) Pelagic longlines. (1) From August 1, 1999, through November
30, 1999, no person may deploy a pelagic longline that is more than 24
nautical miles (nm) (44.5 km) in length in the Mid-Atlantic Bight.
(2) No person that fishes in the following areas during the
following periods and has a pelagic longline on board may possess
Atlantic tunas or swordfish. No person may use a pelagic longline in
the following areas and periods:
(i) Southeastern United States closed area--December 1 through
March 31.
(ii) Great South Channel closed area--March 1 through June 30.
(iii) Cape Cod Bay closed area--February 1 through April 30.
(iv) Florida Straits --July 1 through September 30.
(3) When the gear being fished by a person aboard a vessel that has
a permit for Atlantic HMS hooks or entangles a marine mammal or sea
turtle, the operator of the vessel must immediately release the animal,
retrieve his fishing gear, and move at least 1 nm (2 km) from the
location of the incident before resuming fishing. Reports of marine
mammal entanglements must be submitted to NMFS consistent with
regulations in Sec. 229.6 of this title.
(d) Authorized gear--(1) Atlantic tunas. No person that fishes for,
takes, retains, or possesses Atlantic tunas may have on board or use
any gear other than that authorized for the category for which the
Atlantic tunas permit has been issued for the harvesting vessel. Gear
types authorized for each Atlantic tunas permit category are:
(i) Angling. Rod and reel (including downriggers) and handline.
(ii) Charter/Headboat. Rod and reel (including downriggers), bandit
gear, and handline.
(iii) General. Rod and reel (including downriggers), handline,
harpoon, and bandit gear.
(iv) Harpoon. Harpoon.
(v) Longline. Longline.
(vi) Purse Seine. Purse seine.
(A) Mesh size. (1) A purse seine used in directed fishing for BFT
must have a mesh size equal to or smaller than 4.5 inches (11.4 cm) in
the main body (stretched when wet) and must have at least 24-count
thread throughout the net.
(2) NMFS may exempt an owner or operator from the mesh requirements
in paragraph (d)(2)(i) of this section if the exemption will not result
in significant injury or mortality to BFT that are encircled by the net
but manage to escape.
(B) Inspection of purse seine vessels. Persons that own or operate
a purse seine vessel conducting a directed fishery for Atlantic tunas
must have their fishing gear inspected for mesh size by an enforcement
agent of NMFS prior to commencing fishing for the season in any fishery
that may result in the harvest of Atlantic tunas. Such persons must
request such inspection at least 24 hours before commencement of the
first fishing trip of the season. If NMFS does not inspect the vessel
within 24 hours of such notification, the inspection requirement is
waived. In addition, at least 24 hours before commencement of
offloading any BFT after a fishing trip, such persons must request an
inspection of vessel and catch by notifying NMFS. If NMFS does not
inspect the vessel at offloading, the inspection requirement is waived.
(vii) Trap. Pound net and fish weir. Trap gear is authorized for
BFT only.
(2) Billfish. (i) Persons may possess a billfish in or take a
billfish from its management area only if it is harvested by rod and
reel. Regardless of how taken, persons may not possess a billfish in or
take a billfish from its management area on board a vessel using or
having on board a pelagic longline.
(ii) In a hook-and-line fishery for billfish, persons may not use
more than one hook per bait or lure.
(3) Sharks. (i) No person may possess a shark in or take a shark
from its management area by any gear other than rod and reel, longline,
or driftnet.
(ii) No person may use a driftnet with a total length of 2.5 km or
more to fish for sharks. No person may have on board a vessel a
driftnet with a total length of 2.5 km or more.
(iii) Provisions on gear deployment for the southeast U.S. shark
net fishery to implement the Atlantic Large Whale Take Reduction Plan
are set forth in Sec. 229.32 (f) of this title.
(4) Swordfish. (i) No person may possess Atlantic swordfish taken
by any gear other than rod and reel, harpoon, handline, or longline
unless he or she possesses an Incidental LAP for swordfish. A swordfish
from its management area may not be taken by a driftnet, and may not be
retained, or possessed by a vessel with a driftnet on board.
(ii) A swordfish will be deemed to have been harvested by a
driftnet when it is onboard, or offloaded from a vessel using or having
onboard a driftnet.
(iii) A swordfish will be deemed to have been harvested by handgear
when it is onboard, or offloaded from a vessel using or having onboard
handgear if such vessel does not have a longline on board.
Sec. 635.22 Recreational retention limits.
(a) General. Recreational retention limits apply to billfish taken
from or possessed in the management area, a shark taken from or
possessed in the Atlantic EEZ, and a yellowfin tuna taken from or
possessed in the Atlantic Ocean. The operator of a vessel for which a
retention limit applies is responsible for the vessel trip limit and
the cumulative retention limit based on the number of persons aboard.
The retention limits apply to a person who fishes in any manner, except
a person aboard a vessel that has on board the commercial vessel permit
issued under
[[Page 3182]]
Sec. 635.4 for the appropriate species/species group. Federal
recreational retention limits may not be combined with any recreational
retention limit applicable in state waters.
(b) Billfish. One white marlin, blue marlin or sailfish may be
retained per vessel per trip. No longbill spearfish may be retained.
NMFS may decrease the retention limit for blue and/or white marlin to
zero if NMFS projects that the landings limit for the applicable
species will be reached. Such decrease will be based on a review of
current landings data, and any other relevant factors. NMFS will file
for publication notification of any decrease in retention limit with
the Office of the Federal Register at least 3 calendar days prior to
the decrease becoming effective.
(c) Sharks. (1) Large coastal sharks, prohibited sharks, small
coastal sharks. None may be retained.
(2) Pelagic shark. One pelagic shark per vessel per trip may be
retained.
(d) Yellowfin tuna. Three yellowfin tunas per person per day may be
retained. Regardless of the length of a trip, no more than three
yellowfin tuna per person may be retained on board a vessel.
Sec. 635.23 Retention limits for BFT.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
(a) General category. (1) A person aboard a vessel that has a
General Category Atlantic Tunas Permit may not possess, retain, land,
or sell a BFT in the school, large school, or small medium size class.
(2) On an RFD, a person aboard a vessel that has a General Category
Atlantic Tunas Permit may not possess, retain, land, or sell a BFT in
the large medium or giant size class. On days other than RFDs, when the
General Category is open, one large medium or giant BFT may be caught
and landed from such vessel per day. NMFS will annually publish a
schedule of RFDs in the Federal Register. An RFD applies only when the
General Category fishery is open.
(3) Regardless of the length of a trip, no more than a single day's
retention limit of large medium or giant BFT may be possessed or
retained aboard a vessel that has a General Category Atlantic Tunas
Permit. On days other than RFDs, when the General Category is open, no
person aboard such vessel may continue to fish and the vessel must
immediately proceed to port once the applicable limit for large medium
or giant BFT is retained.
(4) To provide for maximum utilization of the quota for BFT, NMFS
may increase or decrease the daily retention limit of large medium and
giant BFT over a range from zero (on RFDs) to a maximum of three per
vessel. Such increase or decrease will be based on a review of dealer
reports, daily landing trends, availability of the species on the
fishing grounds, and any other relevant factors. NMFS will publish
notification in the Federal Register of any adjustment in the allowable
daily retention limit specified in paragraph (b)(2) of this section.
NMFS will file such notification at the Office of the Federal Register
at least 3 calendar days prior to the change becoming effective.
(b) Angling category--(1) Large medium and giant BFT. (i) No large
medium or giant BFT may be retained, possessed, landed, or sold in the
Gulf of Mexico, except one per vessel per year, which may be caught
incidentally to fishing for other species.
(ii) One per vessel per year may be retained, possessed, and landed
in non-Gulf of Mexico areas.
(iii) When a large medium or giant BFT has been caught and retained
under paragraph (b)(1) of this section, no person aboard the vessel may
continue to fish and the vessel must immediately proceed to port. Large
medium and giant BFT caught by a person aboard a vessel with an Angling
Category Atlantic Tunas Permit may not be sold or transferred to any
person for a commercial purpose. The owner or operator of the vessel
must report the large medium or giant BFT via the automated catch
reporting system by telephone within 24 hours of landing.
(2) School, large school, or small medium BFT. One per vessel per
day may be retained, possessed, or landed. Regardless of the length of
a trip, no more than a single day's allowable catch of school, large
school, or small medium BFT may be possessed or retained aboard a
vessel that has an Angling Category Atlantic Tunas Permit.
(3) Changes to retention limits. To provide for maximum utilization
of the quota for BFT spread over the longest period of time, NMFS may
increase or decrease the retention limit for any size class BFT or
change a vessel trip limit to an angler limit and vice versa. Such
increase or decrease will be based on a review of daily landing trends,
availability of the species on the fishing grounds, and any other
relevant factors. NMFS will file such notification at the Office of the
Federal Register at least 3 calendar days prior to the change becoming
effective.
(c) HMS Charter/Headboat. (1) When fishing in the Gulf of Mexico,
the restrictions applicable to the Angling category specified in
paragraphs (b)(1) and (2) of this section apply to a vessel that has an
HMS Charter/Headboat permit.
(2) When fishing other than in the Gulf of Mexico when the fishery
for the General category is closed, the restrictions applicable to the
Angling category specified in paragraphs (b)(1) through (3) of this
section apply on a vessel that has an HMS Charter/Headboat permit.
(3) When fishing other than in the Gulf of Mexico and when the
fishery under the General category has not been closed under
Sec. 635.28, a person aboard a vessel that has an HMS Charter/Headboat
permit may fish under either the retention limits applicable to the
General category specified in paragraphs (a)(2) and (3) of this section
or the retention limits applicable to the Angling category specified in
paragraphs (b)(2) and (3) of this section. The size category of the
first BFT retained will determine the fishing category applicable to
the vessel that day.
(d) Harpoon category. A vessel that has a Harpoon Category Atlantic
Tunas Permit may retain, possess, or land multiple giant BFTs per day,
but only one large medium BFT per vessel per day may be retained,
possessed, or landed.
(e) Purse Seine category. Persons that own or operate a vessel that
has a Purse Seine Category Atlantic Tunas Permit,
(1) May retain, possess, land, or sell large medium BFT in amounts
not exceeding 15 percent, by weight, of the giant BFT landed on that
trip, provided that the total amount of large medium BFT landed by that
vessel during the fishing year does not exceed 10 percent, by weight,
of the total amount of giant BFT allocated to that vessel for that
fishing year.
(2) May retain, possess or land BFT smaller than the large medium
size class that are taken incidentally when fishing for skipjack tuna
or yellowfin tuna in an amount not exceeding 1 percent, by weight, of
the skipjack tuna and yellowfin tuna landed on that trip. Landings of
BFT smaller than the large medium size class may not be sold and are
counted against the Purse Seine category BFT quota allocated to that
vessel.
(f) Longline category. An owner or operator of a vessel that has a
Longline Category Atlantic Tunas Permit may retain, possess, land, or
sell large medium and giant BFT taken incidentally in fishing for other
species. Limits on such retention/possession/landing/sale are as
follows:
[[Page 3183]]
(1) For landings south of 34 deg.00' N. lat., one large medium or
giant BFT per vessel per trip may be landed, provided that for the
months of January through April at least 1,500 lb (680 kg), and for the
months of May through December at least 3,500 lb (1,588 kg), either dw
or round weight, of species other than BFT are legally caught,
retained, and offloaded from the same trip and are recorded on the
dealer weighout slip as sold.
(2) For landings north of 34 deg.00' N. lat., landings per vessel
per trip of large medium and giant BFT may not exceed 2 percent by
weight, either dw or round weight, of all other fish legally caught,
retained, and offloaded from the same trip and which are recorded on
the dealer weighout slip as sold.
(g) Trap category. Persons that own or operate a vessel that has a
Trap Category Atlantic Tunas Permit may retain, possess, land, and sell
each fishing year only one large medium or giant BFT that is taken
incidentally while fishing for other species with a pound net or fish
weir.
Sec. 635.24 Commercial retention limits for sharks and swordfish.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
(a) Sharks. (1) Persons that own or operate a vessel that has a
directed ILAP or LAP for shark issued pursuant to Sec. 635.16 may
retain, possess or land no more than 4,000 lb (1,814 kg), dw, of LCS
per trip.
(2) Persons that own or operate a vessel that has an incidental
catch ILAP or LAP for sharks may retain, possess or land no more than
five LCS and 16 SCS and pelagic sharks, combined, per trip.
(b) Swordfish. Persons that own or operate a vessel that has an
incidental catch permit for swordfish may retain, possess, or land no
more than two swordfish per trip in or from the Atlantic Ocean north of
5 deg. N. lat. or landed in an Atlantic coastal state, except persons
that own or operate a vessel in the squid trawl fishery that has such
permit may retain, possess, or land no more than five swordfish per
trip in or from the Atlantic Ocean north of 5 deg. N. lat. or landed in
an Atlantic coastal state. A vessel is considered to be in the squid
trawl fishery when it has no commercial fishing gear other than trawls
on board and squid constitute not less than 75 percent by weight of the
total fish on board or offloaded from the vessel.
Sec. 635.26 Catch and release.
(a) BFT. (1) Notwithstanding other provisions of this part, an
angler may fish for BFT under a tag and release program, provided the
angler tags all BFT so caught with conventional tags issued or approved
by NMFS, returns such fish to the sea immediately after tagging with a
minimum of injury, and reports the catching of the tagged BFT. If NMFS-
issued or NMFS-approved conventional tags are not on board a vessel,
all anglers aboard that vessel are ineligible to fish under the tag and
release program.
(2) Persons may obtain NMFS-issued conventional tags, reporting
cards, and detailed instructions for their use from the NMFS
Cooperative Tagging Center. Persons may use a conventional tag obtained
from a source other than NMFS to tag BFT, provided the use of such tags
is registered each year with the Cooperative Tagging Center and the
NMFS program manager has approved the use of a conventional tag from
that source. An angler using an alternative source of tags wishing to
tag BFT may contact the NMFS Cooperative Tagging Center at the
Southeast Fishery Science Center.
(3) An angler registering for the HMS tagging program is required
to provide his or her name, address, phone number and, if applicable,
the identity of the alternate source of tags.
(b) Sharks. Notwithstanding other provisions of this part, a person
may fish for white sharks (Carcharodon carcharias), blue sharks
(Prionace glauca), or Atlantic sharpnose sharks (Rhizoprionodon
terraenovae) with rod and reel under a catch and release program,
provided the person tags and releases such fish to the sea immediately
with a minimum of injury.
Sec. 635.27 Quotas.
(a) BFT. Consistent with ICCAT recommendations, NMFS has divided
the fishing year's total amount of BFT that may be caught, retained,
possessed, or landed by persons and vessels subject to U.S.
jurisdiction among the General, Angling, Harpoon, Purse Seine,
Longline, and Trap categories of Atlantic Tunas permits and the HMS
Charter/Headboat permit holders. Allocations of quota are according to
the following percentages: General - 47.1 percent; Angling - 19.7
percent, which includes the school BFT held in reserve as described
under paragraph (a)(7)(ii) of this section; Harpoon - 3.9 percent;
Purse Seine - 18.6 percent or 250 mt, whichever is less; Longline - 8.1
percent; and Trap - 0.1 percent. In addition, NMFS is holding in
reserve 2.5 percent of the quota of BFT for inseason adjustments, to
compensate for overharvest in any category other than the Angling
category school BFT subquota or for fishery independent research. NMFS
may apportion a quota allocated to any category to specified fishing
periods or to geographic areas. BFT quotas are specified in whole
weight.
(1) General category quota. (i) Catches from vessels for which
General Category Atlantic Tunas Permits have been issued and certain
catches from vessels for which an HMS Charter/Headboat permit has been
issued are counted against the General category quota. See
Sec. 635.23(c)(3) regarding catches by vessels with an HMS Charter/
Headboat permit that are counted against the General category quota.
The total amount of large medium and giant BFT that may be caught,
retained, possessed, landed, or sold under the General category quota
is 47.1 percent of the overall U.S. quota, available for periods as
follows:
(A) June 1 through August 31--60 percent;
(B) September 1 through September 30--30 percent; and
(C) October 1 through May 31--10 percent.
(ii) NMFS will adjust each period's quota based on overharvest or
underharvest in the prior period.
(iii) When the remainder of the fishing year's quota is projected
to be 10 mt, NMFS will file a notification at the Office of the Federal
Register that sets aside the remaining quota for an area comprising the
waters north of 38 deg.47' N. lat. and south and west of a straight
line originating at a point on the southern shore of Long Island at
72 deg.27' W. long. (Shinnecock Inlet) and running south-southeast 150
degrees true. The daily catch limit for this set-aside area will be one
large medium or giant BFT per vessel per day. Upon the effective date
of the set-aside, fishing for, possessing, retaining, or landing large
medium or giant BFT must cease in all waters outside the set-aside
area.
(iv) The remainder of each preceding category may be caught,
retained, possessed, and landed north of 38 deg. 47' N. lat.
(2) Angling category quota. The total amount of BFT that may be
caught, retained, possessed, and landed by anglers aboard vessels for
which Angling Category Atlantic Tunas Permit or an HMS Charter/Headboat
permit have been issued is 19.7 percent of the overall U.S. BFT quota.
No more than 2.3 percent of the Angling category quota may be large
medium or giant BFT and no more than 8 percent of the overall U.S. BFT
quota may be school BFT. The Angling category includes the school BFT
held in reserve described under paragraph (a)(7)(ii) of this section.
[[Page 3184]]
The size class subquotas for BFT are further subdivided as follows:
(i) Under paragraph (a)(7)(ii) of this section, 47.2 percent of the
school BFT Angling category quota, minus the school BFT quota held in
reserve may be caught, retained, possessed, or landed south of 38 deg.
47' N. lat.
(ii) 47.2 percent of the large school/small medium BFT Angling
category quota, may be caught, retained, possessed, or landed south of
38 deg. 47' N. lat.
(iii) 66.7 percent of the Large medium and Giant BFT Angling
category quota may be caught, retained, possessed, or landed south of
38 deg. 47' N. lat.
(3) Longline category quota. The total amount of large medium and
giant BFT that may be caught incidentally and retained, possessed, or
landed by vessels for which Longline category Atlantic tunas permits
have been issued is 8.1 percent of the overall U.S. quota. No more than
78.9 percent of the Longline Category quota may be caught, retained,
possessed, or landed in the area south of 34 deg.00' N. lat.
(4) Purse Seine category quota. (i) The total amount of large
medium and giant BFT that may be caught, retained, possessed, or landed
by vessels for which Purse Seine Category Atlantic Tunas Permits have
been issued is 18.6 percent of the overall U.S. quota or 250 mt,
whichever is less. The purse seine fishery under this quota commences
on August 15 each year.
(ii) An owner or operator of a vessel for which a Purse Seine
Category Atlantic Tunas Permit has been issued must apply in writing to
NMFS for an allocation of BFT from the Purse Seine category quota. The
application must be postmarked no later than April 15 for an allocation
of the quota that becomes available on August 15.
(iii) On or about May 1, NMFS will make equal allocations of the
available size classes of BFT among purse seine vessel owners so
requesting. Such allocations are freely transferable, in whole or in
part, among vessels that have Purse Seine Category Atlantic Tunas
permits. An owner of a purse seine vessel intending to fish for more
than one allocation in any fishing season must provide written notice
of such intent to NMFS 15 days before commencing fishing. An owner of a
purse seine vessel who transfers his or her allocation to another purse
seine vessel may not use his or her vessel in any fishery in which BFT
might be caught for the remainder of the fishing year after his or her
allocation is transferred.
(iv) An owner of a vessel for which a Purse Seine Category Atlantic
Tunas Permit has been issued may apply to NMFS to permanently
consolidate Purse Seine Category vessel permits issued under
Sec. 635.4. Upon written approval of consolidation by NMFS, the Purse
Seine Category Atlantic Tunas Permit of a transferring vessel will be
canceled, and the receiving owner may apply for allocations of BFT
commensurate with the number of consolidated permits. An owner of a
purse seine vessel whose permit is canceled through consolidation may
not use his or her vessel in any fishery in which BFT might be caught.
(5) Harpoon category quota. The total amount of large medium and
giant BFT that may be caught, retained, possessed, landed, or sold by
vessels for which Harpoon Category Atlantic Tunas Permits have been
issued is 3.9 percent of the overall U.S. quota.
(6) Trap category quota. The total amount of large medium and giant
BFT that may be caught, retained, possessed, or landed by vessels for
which Trap Category Atlantic Tunas Permits have been issued is 0.1
percent of the overall U.S. BFT quota.
(7) Reserve. (i) The total amount of BFT that is held in reserve
for inseason adjustments and fishery-independent research using quotas
or subquotas other than the Angling category school BFT subquota, is
2.5 percent of the overall U.S. BFT quota. NMFS may allocate any
portion of this Reserve for inseason adjustments to any category quota
in the fishery, other than the Angling category school BFT subquota.
(ii) The total amount of school BFT that is held in reserve for
inseason adjustments and fishery independent research is 18.5 percent
of the total school BFT quota for the Angling category as described
under paragraph (a)(2) of this section; which is in addition to the
amounts specified in paragraph (a)(7)(i) of this section. NMFS may
allocate any portion of the school BFT held in reserve for inseason
adjustments to the Angling category.
(iii) NMFS will file notification of any inseason adjustment at the
Office of the Federal Register before such allocation is to become
effective. Before making any such adjustment, NMFS will consider the
following factors:
(A) The usefulness of information obtained from catches in the
particular category for biological sampling and monitoring of the
status of the stock.
(B) The catches of the particular category quota to date and the
likelihood of closure of that segment of the fishery if no allocation
is made.
(C) The projected ability of the vessels fishing under the
particular category quota to harvest the additional amount of BFT
before the end of the fishing year.
(D) The estimated amounts by which quotas for other gear categories
of the fishery might be exceeded.
(E) Effects of the transfer on BFT rebuilding and overfishing.
(F) Effects of the transfer on accomplishing the objectives of the
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks.
(8) Inseason adjustments. Within a fishing year, NMFS may transfer
quotas among categories or, as appropriate, subcategories. If it is
determined, based on the factors in paragraphs (a)(7)(iii)(A) through
(F) of this section and the probability of exceeding the total quota,
that vessels fishing under any category or subcategory quota are not
likely to take that quota, NMFS may transfer inseason any portion of
the remaining quota of that fishing category to any other fishing
category or to the reserve as specified in paragraphs (a)(7)(i) and
(ii) of this section. NMFS will file a notification of any inseason
adjustment with the Office of the Federal Register before such transfer
is to become effective.
(9) Annual adjustments. If NMFS determines, based on landings
statistics and other available information, that a BFT quota in any
category, or, as appropriate, subcategory, has been exceeded or has not
been reached, NMFS may subtract the overharvest from, or add the
underharvest to, that quota category for the following fishing year,
provided that the total of the adjusted quotas and the reserve is
consistent with a recommendation of ICCAT regarding country quotas.
NMFS will file at the Office of the Federal Register a notice of the
amount to be subtracted or added and the basis for the quota reductions
or increases.
(b) Shark--(1) Commercial quotas. The commercial quotas for shark
specified in paragraphs (b)(1)(i) through (iv) of this section apply to
persons fishing aboard vessels for which commercial Federal vessel
permits for shark have been issued under Sec. 635.4 and to persons who
sell shark harvested solely from state waters. Commercial quotas are
specified for each of the categories of large coastal shark, small
coastal shark, and pelagic shark.
(i) Large coastal sharks. The annual commercial quota for large
coastal sharks is 860 mt dw, apportioned between ridgeback and non-
ridgeback shark and divided between two semiannual fishing seasons,
January 1 through June 30, and July 1 through December 31. The length
of each season will be determined based on the projected catch rates,
available quota,
[[Page 3185]]
and other relevant factors. NMFS will file a notice of each season's
length at the Office of the Federal Register in a timely manner. The
quotas for each fishing season (unless otherwise specified in the
Federal Register) are as follows:
(A) Ridgeback shark--321 mt dw.
(B) Non-ridgeback shark--109 mt dw.
(ii) Small coastal shark. The annual commercial quota for small
coastal shark is 359 mt dw, divided between two equal semiannual
periods, January 1 through June 30, and July 1 through December 31. The
quota for each semiannual period is 179.5 mt, dw.
(iii) Pelagic sharks. The annual commercial quotas for pelagic
sharks are 30 mt dw for porbeagle sharks and 550 mt dw for all other
pelagic sharks (unless otherwise specified in the Federal Register).
These quotas are divided between two equal semiannual periods, January
1 through June 30, and July 1 through December 31. The quotas for each
semiannual period are as follows:
(A) Porbeagle sharks--15 mt dw.
(B) Pelagic sharks, other than porbeagle sharks--225 mt dw.
(iv) Annual adjustments. (A) NMFS will adjust the next year's
semiannual quotas for large coastal, small coastal, and pelagic sharks
to reflect actual catches during any semiannual period. For example, a
commercial quota underage or overage in the season that begins January
1 will result in an equivalent increase or decrease in the following
year's quota for that season, provided that the annual quotas are not
exceeded. NMFS will file a notice of any adjustment at the Office of
the Federal Register.
(B) The annual quota for dead discards of blue shark, which is a
prohibited shark, is 545 mt whole weight (273 mt dw). NMFS will reduce
the annual commercial quota for pelagic shark for the next fishing year
by the amount that this quota is exceeded.
(C) Sharks taken or discarded dead are counted against the
applicable directed fishery quota. Sharks taken and landed from state
waters are counted against the applicable directed fishery quota.
(v) Public display quota. The annual quota for persons who collect
sharks under an EFP is 60 mt whole weight (43 mt dw).
(2) [Reserved]
(c) Swordfish. (1) 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 semi-annual directed
fishery quotas and an incidental catch quota for fishermen targeting
other species. A swordfish from the North Atlantic swordfish stock
landed before the effective date of a closure of the directed fishery
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. A swordfish from the North Atlantic swordfish stock landed by a
vessel for which an incidental catch permit for swordfish has been
issued, landed consequent to recreational fishing, or landed 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 entire
quota for the South Atlantic swordfish stock is reserved for longline
vessels for which a directed fishery permit for swordfish has been
issued; retention of swordfish caught incidental to other fishing
activities is prohibited in the Atlantic Ocean south of 5 deg. N. lat.
(i) North Atlantic swordfish stock. (A) The annual directed fishery
quota for the North Atlantic swordfish stock is 2073.4 mt dw, divided
into two equal semiannual quotas of 1036.6 mt dw, one for the period
June 1 through November 30, and the other for the period December 1
through May 31 of the following year.
(B) The annual incidental catch quota for the North Atlantic
swordfish stock is 300 mt dw.
(ii) South Atlantic swordfish stock. The annual directed fishery
quota for the South Atlantic swordfish stock is 289 mt dw. Incidental
harvest of swordfish is prohibited in the Atlantic Ocean south of
5 deg. N. lat.
(2) Inseason adjustments. (i) NMFS may adjust the December 1
through May 31 semiannual directed fishery quota to reflect actual
catches during the June 1 through November 30 semiannual period,
provided that the fishing year's directed fishery quota is not
exceeded.
(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.
(iii) If NMFS determines that it is necessary to close the directed
swordfish fishery prior to the scheduled end of a semi-annual season,
any estimated overharvest or underharvest of the directed fishery quota
for that semi-annual period will be used to adjust the annual
incidental catch quota accordingly.
(iv) NMFS will file a notice at the Office of the Federal Register
of any inseason swordfish quota adjustment and its apportionment made
under this paragraph (c)(3) of this section.
(3) Annual adjustments. (i) As necessary, NMFS will reevaluate the
quotas specified in paragraphs (c)(1) and (2) of this section based on
consideration of the following factors:
(A) Swordfish stock abundance assessments;
(B) Swordfish stock age and size composition;
(C) Catch and effort in the swordfish fishery; and
(D) Consistency with ICCAT recommendations.
(ii) Except for the carryover provisions of paragraph (c)(3)(iii)
of this section, NMFS will file a notice of any adjustment at the
Office of the Federal Register, providing for a minimum 30-day comment
period.
(iii) If consistent with applicable ICCAT recommendations, total
landings above or below the specific North Atlantic or South Atlantic
swordfish annual quota will be subtracted from, or added to, the
following year's quota for that area. Any adjustments to the 12-month
directed fishery quota will be apportioned equally between the two
semiannual periods. NMFS will file a notice at the Office of the
Federal Register of any adjustment or apportionment made under this
paragraph (c)(3)(iii) of this section.
Sec. 635.28 Closures.
(a) BFT. (1) When a BFT quota, other than the Purse Seine category
quota specified in Sec. 635.27(a)(4), is reached, or is projected to be
reached, NMFS will file a notice of closure at the Office of the
Federal Register. On and after the effective date and time of such
notification, for the remainder of the fishing year, fishing for,
retaining, possessing, or landing BFT under that quota is prohibited
until the opening of the subsequent quota period.
(2) From August 15 through December 31, the owner or operator of a
vessel that has been allocated a portion of the Purse Seine category
quota under Sec. 635.27(a)(4) may fish for BFT, yellowfin, bigeye,
albacore, or skipjack tuna from January 1 through August 14. Landings
of BFT taken incidental to fisheries targeting other Atlantic tunas or
in any fishery in which BFT might be caught will be deducted from the
individual vessel's quota for the following fishing season (i.e.,
August 15 through December 31). Upon reaching its individual vessel
allocation of BFT, the vessel may not participate in a directed purse
seine fishery for Atlantic
[[Page 3186]]
tunas for the remainder of the fishing year.
(3) If NMFS determines that variations in seasonal distribution,
abundance, or migration patterns of BFT, or the catch rate in one area,
precludes anglers in another area from a reasonable opportunity to
harvest a portion of the Angling and Charter/Headboat categories quota,
NMFS may close all or part of the fishery under that category and may
reopen it at a later date if NMFS determines that BFT have migrated
into the other area. In determining the need for any such temporary or
area closure, NMFS will consider the following factors:
(i) The usefulness of information obtained from catches of a
particular geographic area of the fishery for biological sampling and
for monitoring the status of the stock;
(ii) The current year catches from the particular geographic area
relative to the catches recorded for that area during the preceding 4
years;
(iii) The catches from the particular geographic area to date
relative to the entire category and the likelihood of closure of that
entire category of the fishery if no allocation is made;
(iv) The projected ability of the entire category to harvest the
remaining amount of BFT before the anticipated end of the fishing
season.
(b) Shark. (1) The commercial fishery for large coastal shark will
remain open for fixed semiannual seasons, as specified at
Sec. 635.27(b)(1)(i). From the effective date and time of a season
closure until an additional quota becomes available, the fishery for
large coastal sharks is closed, and sharks of that species group may
not be retained on board a fishing vessel issued a commercial permit
pursuant to Sec. 635.4.
(2) When a semiannual quota for small coastal sharks or pelagic
sharks specified in Sec. 635.27(b)(1)(ii) and (iii) is reached, or is
projected to be reached, NMFS will file for publication a notification
to that effect with the Office of the Federal Register. NMFS will file
a notification of closure at the office of the Federal Register at
least 5 days before the closure becomes effective. From the effective
date and time of the closure until an additional quota becomes
available, the fishery for the appropriate shark species group is
closed, and sharks of that species group may not be retained on board a
fishing vessel issued a commercial permit pursuant Sec. 635.4.
(3) When the fishery for a shark species group is closed, a vessel
that has a commercial Federal permit for sharks may not possess or sell
a shark of that species group, and a permitted shark dealer may not
purchase from a fishing vessel a shark of that species group, whether
or not the fishing vessel has a commercial permit for shark, except
that a permitted shark dealer or processor may possess sharks that were
harvested, off-loaded, and sold, traded, or bartered, prior to the
effective date of the closure and were held in storage.
(c) Swordfish--(1) Directed fishery closure. When the annual or
semiannual directed fishery quota specified in Sec. 635.27(c)(1)(i) or
(c)(2) is reached, or is projected to be reached, NMFS will file for
publication (at least 14 days before the closure becomes effective) a
notification to that effect with the Office of the Federal Register.
From the effective date and time of the closure until additional
directed fishery quota becomes available, the directed fishery for the
appropriate stock is closed and the following catch limits apply:
(i) When the directed fishery for the North Atlantic swordfish
stock is closed,
(A) No more than 15 swordfish per trip may be possessed in or from
the Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic
coastal state on a vessel using or having on board a longline. However,
legally taken swordfish from the South Atlantic swordfish stock may be
possessed in the Atlantic Ocean north of 5 deg. N. lat. or landed in an
Atlantic coastal state on a vessel with a longline provided the
harvesting vessel does no fishing on that trip in the Atlantic Ocean
north of 5 deg. N. lat. and reports positions with a vessel monitoring
system, subject to the provisions in Sec. 635.69. NMFS may change this
incidental catch retention limit upon filing for publication
notification of the change with the Office of the Federal Register. The
effective date of such change will be at least 14 days after the date
such notification is filed. Changes in the incidental catch limits will
be based upon the length of the directed fishery closure and the
estimated rate of catch by vessels fishing under the incidental catch
quota.
(B) No swordfish may be possessed in or from the Atlantic Ocean
north of 5 deg. N. lat. or landed in an Atlantic coastal state on a
vessel that has been issued a handgear permit under Sec. 635.4(f)(1).
(ii) When the directed fishery for the South Atlantic swordfish
stock is closed, swordfish from that stock taken incidental to fishing
for other species may not be retained.
(2) Incidental catch closure. When the annual incidental catch
quota specified in Sec. 635.27(c)(1)(ii) is reached, or is projected to
be reached, NMFS will file for publication a notification to that
effect with the Office of the Federal Register. From the effective date
and time of such notification until an additional incidental catch
quota becomes available, no swordfish may be possessed in or from the
Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic coastal
state, and a swordfish in or from the Atlantic Ocean north of 5 deg. N.
lat. may not be sold. However, legally taken swordfish from the South
Atlantic swordfish stock may be possessed in the Atlantic Ocean north
of 5 deg. N. lat. or landed in an Atlantic coastal state on a vessel
with a longline, provided the harvesting vessel does not fish on that
trip in the Atlantic Ocean north of 5 deg. N. lat. and submits position
reports from a vessel monitoring ystem as specified in Sec. 635.69.
Sec. 635.29 Transfer at sea.
(a) Persons may not transfer an Atlantic tuna, billfish, or
swordfish at sea in the Atlantic Ocean, regardless of where the fish
was harvested. However, an owner or operator of a vessel for which a
Purse Seine Category Atlantic Tunas Permit has been issued under
Sec. 635.4 may transfer large medium and giant BFT at sea from the net
of the catching vessel to another vessel for which a Purse Seine
Category Atlantic Tunas Permit has been issued, provided the amount
transferred does not cause the receiving vessel to exceed its vessel
allocation.
(b) Persons may not transfer a shark at sea in the EEZ regardless
of where the shark was harvested, and persons may not transfer at sea a
shark taken in the EEZ regardless of where the transfer takes place.
Sec. 635.30 Possession at sea and landing.
(a) Atlantic tunas. (1) Persons that own or operate a fishing
vessel that possesses an Atlantic tuna in the Atlantic Ocean or that
lands an Atlantic tuna in an Atlantic coastal port must maintain such
Atlantic tuna through offloading either--
(i) In round form; or
(ii) Eviscerated with the head and fins removed, provided one
pectoral fin and the tail remain attached.
(2) Persons that own or operate a purse seine vessel must have each
large medium and giant BFT in the vessel's catch weighed, measured, and
the information recorded on the required landing cards at the time of
offloading and prior to transporting such BFT from the area of
offloading.
(b) Billfish. Persons that own or operate a fishing vessel that
possesses a billfish in its management area or lands a billfish in an
Atlantic coastal port must maintain such billfish with its
[[Page 3187]]
head, fins, and bill intact through offloading. Persons may eviscerate
such billfish, but it must otherwise be maintained whole.
(c) Shark. (1) The practice of ``finning,'' i.e., removing only the
fins and returning the remainder of the shark to the sea, is prohibited
in the EEZ and on board a vessel for which a commercial vessel permit
for shark has been issued. The prohibition on finning applies to all
species of sharks. For a list of species known to occur in the U.S.
EEZ, refer to Tables 1 and 2 of Appendix A to this part.
(2) Persons that own or operate a vessel that has been issued a
commercial permit for shark may not fillet a shark at sea. Persons may
eviscerate and remove the head and fins, but must retain the fins with
the dressed carcasses. While on board and when offloaded, the wet shark
fins may not exceed 5 percent of the weight of the shark carcasses.
(3) Persons that own or operate a vessel that has been issued a
commercial permit that lands shark in an Atlantic coastal port, must
have all fins weighed in conjunction with the weighing of the carcasses
at the vessel's first point of landing. Such weights must be recorded
on the weighout slips specified in Sec. 635.5(a)(2). Persons may not
possess a shark fin on board a fishing vessel after the vessel's first
point of landing. The wet fins may not exceed 5 percent of the weight
of the carcasses.
(4) Persons aboard a vessel that does not have a commercial permit
for shark must maintain a shark in or from the EEZ intact through
landing--the head, tail, or fins may not be removed. The shark may be
bled.
(d) Swordfish. Persons that own or operate a fishing vessel that
possesses a swordfish in the Atlantic Ocean or lands a swordfish in an
Atlantic coastal port, must maintain such swordfish in round or dressed
form through off-loading. However, a swordfish that is damaged by shark
bites may be retained and offloaded if the remainder of the carcass is
at least 29 inches (73 cm) CK.
Sec. 635.31 Restrictions on sale and purchase.
(a) Atlantic tunas. (1) Persons that own or operate a vessel that
possesses an Atlantic tuna may sell such Atlantic tuna only if that
vessel has a valid HMS Charter/Headboat permit, or a General, Harpoon,
Longline, Purse Seine, or Trap category permit for Atlantic tunas.
Persons may not sell a BFT smaller than the large medium size class.
However, a large medium or giant BFT taken by a person on a vessel with
an HMS Charter/Headboat permit fishing in the Gulf of Mexico, or
fishing outside the Gulf of Mexico when the fishery under the General
category has been closed, may not be sold (See Sec. 635.23(c)). Persons
may sell Atlantic tunas only to a dealer that has a valid permit for
purchasing Atlantic tunas.
(2) Dealers may purchase Atlantic tunas only from a vessel that has
a valid commercial permit for Atlantic tunas in the appropriate
category.
(3) Dealers or seafood processors may not purchase or sell a BFT
smaller than the large medium size class unless it is lawfully imported
and is accompanied by a BSD, as specified in Sec. 635.42(a).
(4) A BFT in the possession of a dealer or seafood processor is
deemed to be from the Atlantic Ocean. However, a BFT will not be deemed
to be from the Atlantic Ocean if--
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a BSD, as specified in Sec. 635.42(a).
(b) Billfish. (1) Persons may not sell or purchase a billfish
caught in its management area.
(2) A billfish or a closely related species, namely, black marlin,
Makaira indica, striped marlin, Tetrapturus audax, or shortbill
spearfish, Tetrapturus angustirostris, or a part thereof, in the
possession of a dealer or seafood processor is considered, for purposes
of this part, to be a billfish from its Atlantic Ocean management area.
However, a billfish or a closely related species will not be considered
to be from its management area if--
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a Certificate of Eligibility that
documents that it was harvested from other than its management area.
(c) Shark. (1) Persons that own or operate a vessel that possesses
a shark in or from the EEZ may sell such shark only if the vessel has a
valid commercial permit for shark. Persons may possess and sell a shark
only when the fishery for that species group has not been closed, as
specified in Sec. 635.28(b)(3).
(2) Persons that own or operate a vessel on which a shark in or
from the EEZ or state waters is possessed, may sell such shark only to
a dealer that has a valid permit for shark.
(3) Persons that own or operate a fishing vessel may not sell fins
from a shark harvested in the EEZ, or harvested in the Atlantic Ocean
by a vessel for which a commercial permit for shark has been issued,
that are disproportionate to the weight of shark carcasses landed;
i.e., the fins may not exceed 5 percent of the weight of the carcasses.
(4) Only dealers that have a valid permit for shark may purchase a
shark from the owner or operator of a fishing vessel. Dealers may
purchase a shark only from an owner or operator of a vessel who has a
valid commercial permit for shark, except that dealers may purchase a
shark from an owner or operator of a vessel who fishes exclusively in
state waters and, thus, does not have a commercial permit for shark.
Dealers may purchase a shark from an owner or operator of fishing
vessel only when the fishery for that species group has not been
closed, as specified in Sec. 635.28(b)(3).
(5) Dealers may not purchase from an owner or operator of a fishing
vessel shark fins that are disproportionate to the weight of shark
carcasses landed, i.e., the fins may not exceed 5 percent of the weight
of the carcasses.
(d) Swordfish. (1) Persons that own or operate a vessel on which a
swordfish in or from the Atlantic Ocean is possessed, may sell such
swordfish only if the vessel has a valid commercial permit for
swordfish. Persons may sell such swordfish only to a dealer that has a
valid permit for swordfish.
(2) Dealers may purchase a swordfish harvested from the Atlantic
Ocean only from an owner or operator of a fishing vessel who has a
valid commercial permit for swordfish.
Sec. 635.32 Specifically authorized activities.
(a) Consistent with the provisions of Sec. 600.745 of this chapter,
NMFS may authorize, for the conduct of scientific research, the
acquisition of information and data, public display, or the reduction
of bycatch, economic discards or regulatory discards, activities
otherwise prohibited by the regulations contained in this part.
Activities subject to the provisions of this section may include, but
are not limited to, scientific research resulting in, or likely to
result in, the take, harvest or incidental mortality of Atlantic HMS,
exempted fishing and exempted educational activities, or programs under
which regulated species retained in contravention to otherwise
applicable regulations may be donated through approved food bank
networks. Such activities must be authorized in writing and are subject
to all conditions specified in any letter of authorization, exempted
fishing permit or scientific research permit issued in response to
requests for authorization. For the purposes of all regulated species
covered under this part, NMFS has the sole authority to issue permits,
authorizations, and acknowledgments.
[[Page 3188]]
For the purposes of all regulated species covered under this part,
other than Atlantic sharks, the requirements of Sec. 600.745(a) and
(c)(1) of this chapter are mandatory. If a regulated species landed or
retained under the authority of this section is subject to a quota, the
fish shall be counted against the quota category as specified in the
written authorization.
(b)(1) Notwithstanding the provisions of Sec. 600.745 of this
chapter and other provisions of this part, a valid shark EFP is
required to fish for, take, retain, or possess a shark in or from the
Atlantic EEZ for the purposes of public display under the shark public
display quota specified in Sec. 635.27(b)(2). A valid shark EFP must be
on board the harvesting vessel, must be available when the shark is
landed, must be available when the shark is transported to the display
facility, and must be presented for inspection upon request of an
authorized NMFS employee. A shark EFP is valid for the specific time,
area, gear, and species specified on it.
(2) To be eligible for a shark EFP, a person must provide all
information concerning his or her identification, numbers by species of
sharks to be collected, when and where they will be collected,
vessel(s) and gear to be used, description of the facility where they
will be displayed, and any other information that may be necessary for
the issuance or administration of the permit, as requested by NMFS.
(3) Written reports on fishing activities and disposition of catch
must be submitted to NMFS for each fish collected within 24 hours of
the collection. An annual written summary report of all fishing
activities and disposition of all fish collected under the permit must
also be submitted to NMFS. Specific reporting requirements will be
provided by NMFS with the EFP.
Sec. 635.33 Archival tags.
(a) Implantation report. Any person affixing or implanting an
archival tag into a regulated species must obtain authorization from
NMFS pursuant to Sec. 635.32. Persons so authorized to conduct archival
tag implantation must provide a written report to NMFS indicating the
type and number of tags, the species and approximate size of the fish
as well as any additional information requested in the authorization.
(b) Landing. Notwithstanding other provisions of this part, persons
may catch, possess, retain, and land an Atlantic HMS in which an
archival tag has been implanted or affixed, provided such persons
comply with the requirements of paragraph (c) of this section.
(c) Landing report. Persons that retain an Atlantic HMS that has an
archival tag must contact NMFS, prior to or at the time of landing;
furnish all requested information regarding the location and method of
capture; and, as instructed, remove the archival tag and return it to
NMFS or make the fish available for inspection and recovery of the tag
by a NMFS scientist, enforcement agent, or other person designated in
writing by NMFS.
(d) Quota monitoring. If an Atlantic HMS landed under the authority
of paragraph (b) of this section is subject to a quota, the fish will
be counted against the applicable quota for the species consistent with
the fishing gear and activity which resulted in the catch. In the event
such fishing gear or activity is otherwise prohibited under applicable
provisions of this part, the fish shall be counted against the reserve
quota established for that species.
Sec. 635.34 Adjustment of management measures.
(a) Consistent with the Convention, ATCA, and this part, NMFS may
change the commencement date for BFT fishing for any vessel permit or
quota category. Such change may be made when NMFS determines that the
changed date will enable scientific research on the status of the stock
to be conducted more effectively and will not prevent the quotas for
the affected fishery from being reached, based on historical catch data
or other relevant information. NMFS will file a notice at the Office of
the Federal Register of any change in a commencement date at least 60
days before commencement of the affected fishery.
(b) NMFS may adjust the catch limits for BFT, as specified in
Sec. 635.23, and the quotas for BFT, shark, and swordfish, as specified
in Sec. 635.27.
(c) In accordance with the framework procedures in the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks and the
Fishery Management Plan for Atlantic Billfishes, NMFS may establish or
modify for species or species groups of Atlantic HMS the following
management measures: optimum yield; total allowable catch; quotas;
recreational and commercial catch limits, including target catch
requirements; size limits; fishing years or fishing seasons; species in
the management unit and the specification of the species groups to
which they belong; permitting and reporting requirements; monitoring
and tracking programs; time/area restrictions; allocations among user
groups; gear restrictions; effort limitations; and actions to implement
ICCAT recommendations, if appropriate.
Subpart D--Restrictions on Imports
Sec. 635.40 Restrictions to enhance conservation.
(a) Determinations. Upon a determination by NMFS that species of
fish subject to regulation or under investigation by ICCAT (yellowfin,
bigeye, BFT, swordfish, billfishes, albacore and skipjack tunas, and
bonito) are ineligible for entry into the United States under 16 U.S.C.
971d(c)(4) or (c)(5), NMFS, with the approval of the Secretary and the
concurrence of the Secretary of State, will publish a finding to that
effect in the Federal Register. Effective upon the date of filing of
such finding in the Federal Register, every shipment of fish in any
form of the species found to be ineligible will be denied entry unless
it is established by satisfactory proof pursuant to paragraph (b) of
this section that a particular shipment of such fish is eligible for
entry. Entry will not be denied and no such proof will be required for
any such shipment that, on the date of such publication, was in transit
to the United States on board a vessel operating as a common carrier.
(b) Proof of admissibility. (1) For the purposes of paragraph (a)
of this section and section 6(c) of ATCA, a shipment of fish in any
form of the species under regulation or under investigation by ICCAT
offered for entry, directly or indirectly, from a country named in a
finding published under paragraph (a) of this section is eligible for
entry if the shipment is accompanied by a completed certificate of
eligibility attached to the invoice certifying that the fish in the
shipment:
(i) Are not of the species specified in the published finding;
(ii) Are of the species named in the published finding, but were
not taken in the regulatory area; or
(iii) Are of the species named in the published finding, but are
products of an American fishery and are lawfully taken in conformity
with applicable conservation laws and regulations and landed in the
country named in the published finding solely for transshipment.
(2) If the fish are offered for entry under paragraph (b)(1)(i) or
(b)(1)(ii) of this section, the certificate must be executed by a duly
authorized official of the country named in the published finding and
the certificate must be validated by a consular officer or consular
agent of the United States.
[[Page 3189]]
Such validation must be attached to the certificate of eligibility.
(3) If the fish are offered for entry under paragraph (b)(1)(iii)
of this section, the certificate must be executed by a consular officer
or consular agent of the United States and be accompanied by the
declaration(s) required by 19 CFR 10.79. The ``Declaration of Master
and Two Members of Crew on Entry of Products of American Fisheries''
required by 19 CFR 10.79 must contain a further statement as follows:
``We further declare that the said fish were caught by us in full
compliance with part 635, title 50, Code of Federal Regulations, and
such other conservation laws and regulations as were applicable at the
time the fishing operation was in progress.''
(c) Removal of import restrictions. Upon a determination by NMFS
that the conditions no longer exist that warranted the imposition of
import restrictions in the finding published pursuant to paragraph (a)
of this section, NMFS, with the approval and the concurrence of the
Secretary of State, will remove the import restriction through
notification in the Federal Register effective on the date of filing of
the notification. The restriction will be removed, provided that, for 1
year from such date of publication, every shipment of fish in any form
that was subject to the finding published pursuant to paragraph (a) of
this section will continue to be denied entry, unless the shipment is
accompanied by a certification executed by an authorized official of
the country of export and authenticated by a consular officer or
consular agent of the United States certifying that no portion of the
shipment is composed of fish taken prior to or during the import
restriction.
Sec. 635.41 Species subject to documentation requirements.
Imports into the United States and exports or re-exports from the
United States of all BFT or BFT products, regardless of ocean area of
catch, are subject to the documentation requirements of this subpart.
(a) Documentation is required for BFT identified by the following
item numbers from the Harmonized Tariff Schedule:
(1) Fresh or chilled BFT, excluding fillets and other fish meat,
No. 0302.39.00.20.
(2) Frozen BFT, excluding fillets, No. 0303.49.00.20.
(b) In addition, BFT products in other forms (e.g., chunks,
fillets, canned) listed under any other item numbers from the
Harmonized Tariff Schedule are subject to the documentation
requirements of this subpart, except that fish parts other than meat
(e.g., heads, eyes, roe, guts, tails) may be allowed entry without said
statistical documentation.
635.42 Documentation requirements.
(a) BFT imports. (1) Imports of all BFT products into the United
States must be accompanied at the time of entry (filing of Customs Form
7501 or electronic equivalent) by an original completed approved BSD
with the information and exporter's certification specified in
Sec. 635.43(a). Such information must be validated as specified in
Sec. 635.44(a) by a responsible government official of the country
whose flag vessel caught the tuna (regardless of where the fish are
first landed).
(2) BFT imported into the United States from a country requiring a
BSD tag on all such tuna available for sale must be accompanied by the
appropriate BSD tag issued by that country, and said BSD tag must
remain on any tuna until it reaches its final import destination. If
the final import destination is the United States, the BSD tag must
remain on the tuna until it is cut into portions. If the tuna portions
are subsequently packaged for domestic commercial use or re-export, the
BSD tag number and the issuing country must be written legibly and
indelibly on the outside of the package.
(3) A dealer who sells BFT that was previously imported into the
United States for domestic commercial use must provide on the original
BSD that accompanied the import shipment the correct information and
importer's certification specified in Sec. 635.43(a)(13) and must note
on the top of the BSD the entry number assigned at the time of filing
the entry summary. The original of the completed BSD must be postmarked
and mailed by said dealer to NMFS within 24 hours of the time the tuna
was imported into the United States.
(b) BFT exports. (1) A dealer who exports BFT that was harvested by
U.S. vessels and first landed in the United States must complete an
original numbered BSD issued to that dealer by NMFS. Such an
individually numbered document is not transferable and may be used only
once by the dealer to which it was issued to report on a specific
export shipment. A dealer must provide on the BSD the correct
information and exporter certification specified in Sec. 635.43(a). The
BSD must be validated as specified in Sec. 635.44(b). A list of such
officials may be obtained by contacting NMFS. A dealer requesting U.S.
Government validation for exports should notify NMFS as soon as
possible after arrival of the vessel to avoid delays in inspection and
validation of the export shipment.
(2) A dealer who re-exports BFT that was previously imported into
the United States through filing an entry summary (Customs Form 7501 or
electronic equivalent) must provide on the original BSD that
accompanied the import shipment the correct information and
intermediate importer's certification specified in Sec. 635.43(a)(13)
and must note on the top of the BSD the entry number assigned at the
time of filing the entry summary. This requirement does not apply to
BFT destined from one foreign country to another which transits the
United States and for which an entry summary (Customs Form 7501 or
electronic equivalent) is not filed and for which a Shipper's Export
Declaration for in-transit merchandise (Customs Form 7513 or electronic
equivalent) is filed.
(3) A dealer must submit the original of the completed BSD to
accompany the shipment of BFT to its export or re-export destination. A
copy of the BSD completed as specified under paragraph (b)(1) or (b)(2)
of this section must be postmarked and mailed by said dealer to NMFS
within 24 hours of the time the tuna was exported or re-exported from
the United States.
(c) Recordkeeping. A dealer must retain at his or her principal
place of business a copy of each BSD required to be submitted to NMFS
pursuant to this section for a period of 2 years from the date on which
it was submitted to NMFS.
Sec. 635.43 Contents of documentation.
(a) A BSD, to be deemed complete, must state:
(1) The document number assigned by the country issuing the
document.
(2) The name of the country issuing the document, which must be the
country whose flag vessel harvested the BFT, regardless of where the
tuna is first landed.
(3) The name of the vessel that caught the fish and the vessel's
registration number, if applicable.
(4) The name of the owner of the trap that caught the fish, if
applicable.
(5) The point of export, which is the city, state or province, and
country from which the BFT is first exported.
(6) The product type (fresh or frozen) and product form (round,
gilled and gutted, dressed, fillet, or other).
(7) The method of fishing used to harvest the fish (e.g., purse
seine, trap, rod and reel).
(8) The ocean area from which the fish was harvested (western
Atlantic,
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eastern Atlantic, Mediterranean, or Pacific).
(9) The weight of each fish (in kilograms for the same product form
previously specified).
(10) The identifying BSD tag number, if landed by vessels from
countries with tagging programs.
(11) The name and license number of, and be signed and dated in the
exporter's certification block by, the exporter.
(12) If applicable, the name and title of, and be signed and dated
in the validation block by, a responsible government official of the
country whose flag vessel caught the tuna (regardless of where the tuna
are first landed) or by an official of an institution accredited by
said government, with official government or accredited institution
seal affixed, thus validating the information on the BSD.
(13) As applicable, the name(s) and address(es), including the name
of the city and state or province of import, and the name(s) of the
intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by each intermediate and the final
importer.
(b) An approved BSD may be obtained from NMFS to accompany exports
of BFT from the United States. A BFT dealer in a country that does not
provide an approved BSD to exporters may obtain an approved BSD from
NMFS to accompany exports to the United States.
(c) A dealer who exports bluefin tuna to the United States may use
the approved BSD obtainable from NMFS or a document developed by the
country of export, if that country submits a copy to the ICCAT
Executive Secretariat and NMFS concurs with the ICCAT Secretariat's
determination that the document meets the information requirements of
the ICCAT recommendation. In such case, NMFS will provide a list of
countries for which BSDs are approved, with examples of approved
documents, to the appropriate official of the U.S. Customs Service.
Effective upon the date indicated in such notice to the U.S. Customs
Service, shipments of BFT or BFT products offered for importation from
said country(ies) may be accompanied by either that country's approved
BSD or by the BSD provided to the foreign country exporter by NMFS.
Sec. 635.44 Validation requirements.
(a) Imports. The approved BSD accompanying any import of BFT,
regardless of whether the issuing country is a member of ICCAT, must be
validated by a government official from the issuing country, unless
NMFS waives this requirement for that country following a
recommendation to do so by the ICCAT Secretariat. NMFS will furnish a
list of countries for which government validation requirements are
waived to the appropriate official of the U.S. Customs Service. Such
list will indicate the circumstances of exemption for each issuing
country and the non-government institutions, if any, accredited to
validate BSDs for that country.
(b) Exports. The approved BSD accompanying any export of BFT from
the United States must be validated by a U.S. Government official,
except pursuant to a waiver, if any, specified on the form and
accompanying instructions, or in a letter to the permitted dealer from
NMFS. Any waiver of government validation will be consistent with ICCAT
recommendations concerning validation of BSDs. If authorized, such
waiver of government validation may include:
(1) Exemptions from government validation for fish with individual
BSD tags affixed pursuant to Sec. 300.26 of this title or
Sec. 635.5(b)(2)(ii); or
(2) Validation by non-government officials authorized to do so by
NMFS under paragraph (c) of this section.
(c) Authorization for non-government validation. An institution or
association seeking authorization to validate BSDs accompanying exports
from the United States must apply in writing to NMFS for such
authorization. The application must indicate the procedures to be used
for verification of information to be validated, list the names,
addresses, and telephone/fax numbers of individuals to perform
validation, and provide an example of the stamp or seal to be applied
to the BSD. NMFS, upon finding the institution or association capable
of verifying the information required on the BSD, will issue, within 30
days, a letter specifying the duration of effectiveness and conditions
of authority to validate BSDs accompanying exports from the United
States. The effectiveness of such authorization will be delayed as
necessary for NMFS to notify the ICCAT Secretariat of non-government
institutions and associations authorized to validate BSDs.
Sec. 635.45 Import restrictions for Belize, Honduras, and Panama.
All shipments of BFT or BFT products in any form harvested by a
vessel of Belize, Honduras, or Panama will be denied entry into the
United States unless a validated BSD required under Secs. 635.41
through 635.44, shows that a particular shipment of such BFT was
exported from Belize or Honduras prior to August 20, 1997, or exported
from Panama prior to January 1, 1998.
Sec. 635.46 Import restrictions on swordfish.
The policies and procedures contained in Sec. 635.40, which
implement the provisions of section (6)(c) of ATCA with respect to
import controls and which specify procedures for the establishment of
restrictions on imports of tuna, apply to swordfish taken from the
north and south Atlantic stocks.
(a) General. To facilitate enforcement of domestic regulations, a
swordfish, or part thereof, less than the minimum size specified at
Sec. 635.20(e) may not be imported, or attempted to be imported, into
the United States unless it is accompanied by a certificate of
eligibility attesting either that the swordfish was harvested from an
ocean area other than the Atlantic Ocean or that the fish part was
derived from a swordfish harvested from the Atlantic Ocean that weighed
at least 33 lb (15 kg) dw at harvest.
(b) Certificate of eligibility. (1) A shipment of swordfish in any
form offered for import into the United States, directly or indirectly,
from any country is admissible only if accompanied by a certificate of
eligibility. Such a certificate is required for swordfish identified by
any item number from the Harmonized Tariff Schedule including but not
limited to the following:
(i) Fresh or chilled swordfish steaks, No. 0302.69.20.41.
(ii) Fresh or chilled swordfish, excluding steaks, No.
0302.69.20.49.
(iii) Frozen swordfish steaks, No. 0302.79.20.41.
(iv) Frozen swordfish, excluding fillets, steaks and other fish
meat, No. 0302.79.20.49.
(v) Frozen swordfish, fillets, No. 0304.20.60.92.
(2) The certificate of eligibility required under this section must
indicate the flag state of the harvesting vessel, the ocean area of
harvest and, if the shipment contains swordfish or parts thereof less
than the minimum size specified at Sec. 635.20(e), the reason such
swordfish is eligible for entry, as specified in paragraph (a) of this
section. The certificate must be attached to the invoice accompanying
the swordfish shipment from the point of import into the United States
to and including the time and place that it is filleted, cut into
steaks, or processed in any way that physically alters it.
(3) The certificate of eligibility required under this section must
[[Page 3191]]
include the name and title of a responsible government official of the
country exporting the swordfish to the United States and must be signed
and dated by that official with official government seal affixed, thus
validating the information on flag vessel and ocean area of harvest.
(4) A certificate of eligibility may refer to swordfish taken from
only one ocean area of harvest (Atlantic, Pacific, or Indian) and by
vessels under the jurisdiction of only one nation. If a shipment
contains swordfish taken from more than one ocean area, or swordfish
harvested by several vessels from different flag states, a separate
certificate must accompany the shipment for each ocean area of harvest
and for each flag state of the harvesting vessels.
(5) A model certificate of eligibility is available from NMFS. An
equivalent form may be used provided it contains all the information
required under this section.
Subpart E--International Port Inspection
Sec. 635.50 Basis and purpose.
The regulations in this subpart implement the ICCAT port inspection
scheme. The text of the ICCAT port inspection scheme may be obtained
from NMFS.
Sec. 635.51 Authorized officer.
For the purposes of this subpart, an authorized officer is a person
appointed by an ICCAT contracting party that has accepted the port
inspection scheme to serve as an authorized inspector for ICCAT, and
who possesses an identification card so stating issued by the
authorized officer's national government. A list of such contracting
parties may be obtained from NMFS.
Sec. 635.52 Vessels subject to inspection.
(a) All U.S. fishing vessels or vessels carrying tuna, and their
catch, gear, and relevant documents, including fishing logbooks and
cargo manifests, are subject to inspection under this subpart to verify
compliance with ICCAT measures by an authorized officer when landing or
transshipping tuna or when making a port call at a port of any ICCAT
contracting party that has accepted the port inspection scheme.
(b) A tuna vessel, or a vessel carrying tuna, that is registered by
any of the ICCAT contracting parties that have accepted the port
inspection scheme, and the vessel's catch, gear, and relevant
documents, including fishing logbooks and cargo manifests, are subject
to inspection under this subpart to verify compliance with ICCAT
measures when landing or transshipping tuna or when making a port call
in the United States.
(c) A vessel entering a port because of force majeure is exempt
from inspection by an authorized officer of any of the ICCAT
contracting parties that have accepted the port inspection scheme.
(d) The master of a tuna vessel or a vessel carrying tuna must
cooperate with a NMFS authorized officer during the conduct of an
inspection. Inspections will be carried out so that the vessel suffers
minimum interference and inconvenience, and so that degradation of the
quality of catch is avoided.
Sec. 635.53 Reports.
(a) Apparent violations shall be reported on a standardized ICCAT
form or form produced by the national government which collects the
same quality of information. The NMFS authorized officer must sign the
form in the presence of the master of the vessel, who is entitled to
add or have added to the report any observations, and to add his own
signature. The authorized officer should note in the vessel's log that
the inspection has been made.
(b) Copies of the report form must be sent to the flag state of the
vessel within 10 days. Flag states will consider and act on reports of
apparent violations by foreign inspectors on a similar basis as the
reports of their national inspectors in accordance with their national
legislation. The vessel's flag state will notify ICCAT of actions taken
to address the violation.
Sec. 635.54 Ports of entry.
NMFS shall monitor the importation of BFT and swordfish into the
United States. If a NMFS official determines that the diversity of
handling practices at certain ports at which BFT or swordfish is being
imported into the United States allow for circumvention of the Bluefin
Tuna Statistical Document or Certificate of Eligibility requirement,
he/she may designate, after consultation with the U.S. Customs Service,
those ports at which Pacific or Atlantic bluefin tuna or swordfish from
any source may be imported into the United States. NMFS shall announce
through filing at the Office of the Federal Register the names of ports
so designated and the effective dates of entry restrictions.
Subpart F--Enforcement
Sec. 635.69 Vessel monitoring systems.
(a) General. (1) Owners or operators of vessels fishing with
pelagic longlines for swordfish, tunas, or sharks must submit an
automatic position report with date, unique identifier vessel number,
and speed and heading data to NMFS every hour beginning when the vessel
leaves port to begin a fishing trip or at any time swordfish, sharks,
or tunas are possessed on board the vessel.
(2) If a vessel operator is notified by NMFS that his system is not
transmitting position reports, he may be ordered to return to port and
may not commence fishing until position reports are sent once an hour
for 24 hours.
(b) Hardware specifications. (1) The VMS hardware must contain an
integrated global positioning system with an accuracy to within 100
meters, and must be tamper-proof.
(2) The hardware must be able to perform the following functions:
(i) Transmit automatically generated position reports, event-driven
position reports, internet e-mail text messages when optional input
interface is connected, and safety and distress alerts and messages,
(ii) Receive e-mail text messages,
(iii) Have the ability to remotely create new message types and to
remotely create message templates or forms,
(iv) Allow for variable reporting intervals between 5 minutes and
24 hours,
(v) Have the ability to store 100 position reports in local memory
when the hardware is unable to transmit.
(3) The hardware must have an onboard visible or audible alarm that
indicates malfunctioning.
(4) The hardware must function uniformly within the entire area of
geographic coverage of the vessel. Vessels that fish outside the
geographic area of the VMS will be in violation of Sec. 635.9.
(c) Communications specifications. (1) The communications service
provider must have the ability to:
(i) Transmit automatically generated position reports, event driven
position reports, safety and distress alerts and messages, and e-mail
text messages when an optional input interface is connected,
(ii) Create new message types and message templates or forms,
(iii) Perform two-way communications for delivery and acceptance of
data, supporting messages, position reports, queries, and
administrative functions,
(iv) Attach a date and time stamp when the position report is sent
to NMFS,
(v) Accommodate a near real-time system for 95 percent of
transmissions or a store and forward system for two way messaging,
(vi) Provide auto-forwarding or auto-delivery of messages.
[[Page 3192]]
(2) The communications service provider must provide service secure
from tampering or interception, including the eading of passwords and
data.
Sec. 635.70 Penalties.
(a) General. See Sec. 600.735 of this chapter.
(b) Civil procedures for Atlantic tuna. Because of the perishable
nature of Atlantic tuna when it is not chilled or frozen, an authorized
officer may cause to be sold, for not less than its reasonable market
value, unchilled or unfrozen Atlantic tuna that may be seized and
forfeited under ATCA and this part.
Sec. 635.71 Prohibitions.
In addition to the prohibitions specified in Sec. 600.725 of this
chapter, it is unlawful for any person subject to the jurisdiction of
the United States to violate any other provision of this part, ATCA,
the Magnuson-Stevens Act, or any other rules promulgated under ATCA or
the Magnuson-Stevens Act.
(a) General. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Falsify information required on an application for a permit
submitted under Secs. 635.4 or 635.16.
(2) Fish for, catch, possess, retain, or land an Atlantic HMS
without a valid permit on board the vessel, as specified in Sec. 635.4.
(3) Purchase, receive, or transfer for commercial purposes any
Atlantic HMS landed by owners or operators of vessels not permitted to
do so under Sec. 635.4, or purchase, receive, or transfer for
commercial purposes any Atlantic HMS without a valid dealer permit
issued under Sec. 635.4.
(4) Sell, offer for sale, or transfer an Atlantic tuna, shark, or
swordfish other than to a dealer that has a valid dealer permit issued
under Sec. 635.4.
(5) Fail to possess and make available a permit on board the
permitted vessel, as specified in Sec. 635.4(a).
(6) Falsify or fail to record, report, or maintain information
required to be recorded, reported, or maintained, as specified in
Sec. 635.5.
(7) Fail to allow an authorized agent of NMFS to inspect and copy
reports and records, as specified in Sec. 635.5(f).
(8) Fail to make available for inspection an Atlantic HMS or its
area of custody, as specified in Sec. 635.5(g).
(9) Fail to report the catching of any Atlantic HMS to which a
conventional tag has been affixed under a tag and release program.
(10) Falsify or fail to display and maintain vessel and gear
identification, as specified in Sec. 635.6.
(11) Fail to comply with the requirements for at-sea observer
coverage, as specified in Sec. 635.7 and Sec. 600.746 of this chapter.
(12) For any person to assault, resist, oppose, impede, intimidate,
interfere with, obstruct, delay, or prevent, by any means, any
authorized officer in the conduct of any search, inspection, seizure or
lawful investigation made in connection with enforcement of this part.
(13) Interfere with, delay, or prevent by any means, the
apprehension of another person, knowing that such person has committed
any act prohibited by this part;
(14) Fail to attend an educational workshop or to present for
inspection a certificate of attendance at an educational workshop, as
specified in Sec. 635.8.
(15) Tamper with, or fail to operate and maintain a vessel
monitoring system unit, as specified in Secs. 635.9 and 635.69.
(16) Fish for or possess Atlantic tunas or swordfish with a
driftnet on board, as specified in Sec. 635.21 (b), (d)(1), and
(d)(4)(ii).
(17) Fail to retrieve fishing gear and move after an interaction
with a marine mammal or sea turtle, as specified in Sec. 635.21(c)(3).
(18) Fail to release an Atlantic HMS in the manner specified in
Sec. 635.21(a).
(19) Fail to report the retention of an Atlantic HMS that has an
archival tag, as specified in Sec. 635.33.
(20) Fail to maintain an Atlantic HMS in the form specified in
Sec. 635.30.
(21) Fish for, catch, retain, or possess an Atlantic HMS that is
less than its minimum size limit specified in Sec. 635.20.
(22) Fail to comply with the restrictions on use of a pelagic
longline or shark net specified in Sec. 635.21 (c), (d)(3)(ii), and
(d)(3)(iii).
(23) Import any BFT or swordfish in a manner inconsistent with any
ports of entry designated by NMFS as authorized by Sec. 635.54.
(24) Dispose of fish or parts thereof or other matter in any manner
after any communication or signal from an authorized officer, or after
the approach of an authorized officer.
(b) Atlantic tunas. It is unlawful for any person or vessel subject
to the jurisdiction of the United States to:
(1) Engage in fishing with a vessel that has a permit for Atlantic
tuna under Sec. 635.4, unless the vessel travels to and from the area
where it will be fishing under its own power and the person operating
that vessel brings any BFT under control (secured to the catching
vessel or on board) with no assistance from another vessel, except as
shown by the operator that the safety of the vessel or its crew was
jeopardized or other circumstances existed that were beyond the control
of the operator.
(2) Import or export bluefin tuna without a dealer permit, as
specified in Sec. 635.4(b)(2).
(3) Fish for, catch, retain, or possess a BFT less than the large
medium size class by a vessel other than one that has on board an
Angling category Atlantic tunas permit, an HMS Charter/Headboat permit,
or a Purse Seine category Atlantic tunas permit as authorized under
Sec. 635.23 (b), (c), and (e)(2).
(4) Fail to inspect a vessel's permit, fail to affix a dealer tag
to a large medium or giant BFT, or fail to use such tag properly, as
specified in Sec. 635.5(b)(2)(ii).
(5) Fail to report a large medium or giant BFT that is not sold, as
specified in Sec. 635.5(c).
(6) As an angler, fail to report a BFT, as specified in
Sec. 635.5(d).
(7) Fish for, catch, retain, or possess a BFT with gear not
authorized for the category permit issued to the vessel or to have on
board such gear when in possession of a BFT, as specified in
Sec. 635.21(d)(1).
(8) Fail to request an inspection of a purse seine vessel, as
specified in Sec. 635.21(d)(1)(vi)(B).
(9) Fish for or catch BFT in a directed fishery with purse seine
nets without an allocation made under Sec. 635.27(a)(4).
(10) Fish for or catch any Atlantic tunas in a directed fishery
with purse seine nets from August 15 through December 31 if there is no
remaining BFT allocation made under Sec. 635.27 (a)(4).
(11) Exceed the recreational catch limit for yellowfin tuna, as
specified in Sec. 635.22(d).
(12) Exceed a catch limit for BFT specified for the appropriate
permit category, as specified in Sec. 635.23.
(13) As a vessel with a General category Atlantic tuna permit, fail
to immediately cease fishing and immediately return to port after
catching a large medium or giant BFT on a commercial fishing day, as
specified in Sec. 635.23(a)(3).
(14) As a vessel with an Angling category Atlantic tunas permit or
an HMS Charter/Headboat permit, fail to immediately cease fishing and
immediately return to port after catching a large medium or giant BFT
or fail to report such catch, as specified in Sec. 635.23(b)(1)(iii)
and (c)(1) through (c)(3).
(15) As a vessel with an Angling category Atlantic tunas permit or
an HMS Charter/Headboat permit, sell,
[[Page 3193]]
offer for sale, or attempt to sell a large medium or giant BFT after
fishing under the circumstances specified in Sec. 635.23(b)(1)(iii) and
(c)(1) through (3).
(16) Retain a BFT caught under the catch and release program
specified in Sec. 635.26.
(17) As a vessel with a Purse Seine category Atlantic tuna permit,
catch, possess, retain, or land BFT in excess of its allocation of the
Purse Seine category quota, or fish for BFT under that allocation prior
to August 15, as specified in Sec. 635.27(a)(4).
(18) As a vessel with a Purse Seine category Atlantic tunas permit,
land BFT smaller than the large medium size class except as specified
under Sec. 635.23(e)(2).
(19) Fish for, retain, possess, or land a BFT when the fishery is
closed, as specified in Sec. 635.28(a), except as may be authorized for
catch and release under Sec. 635.26.
(20) Approach to within 100 yd (91.5 m) of the cork line of a purse
seine net used by a vessel fishing for Atlantic tuna, or for a purse
seine vessel to approach to within 100 yd (91.5 m) of a vessel actively
fishing for Atlantic tuna, except that two vessels that have Purse
Seine category Atlantic tuna permits may approach closer to each other.
(21) Transfer at sea an Atlantic tuna, except as may be authorized
for the transfer of BFT between purse seine vessels, as specified in
Sec. 635.29(a).
(22) As the owner or operator of a purse seine vessel, fail to
comply with the requirements for weighing, measuring, and information
collection specified in Sec. 635.30(a)(2).
(23) Fish for, catch, possess, or retain a BFT from the Gulf of
Mexico except as specified under Sec. 635.23(f)(1), or if taken
incidental to recreational fishing for other species and retained in
accordance with Sec. 635.23(b) and (c).
(24) Fail to comply with the restrictions on sale and purchase of
an Atlantic tuna, as specified in Sec. 635.31(a) and 635.5(b).
(25) Fail to comply with the documentation requirements for
imported or exported BFT or BFT products, as specified in Sec. 635.42.
(26) Import a BFT or BFT product into the United States from
Belize, Panama, or Honduras other than as authorized in Sec. 635.45.
(27) For any person to refuse to provide information requested by
NMFS personnel or anyone collecting information for NMFS, under an
agreement or contract, relating to the scientific monitoring or
management of Atlantic tunas.
(c) Billfish. It is unlawful for any person or vessel subject to
the jurisdiction of the United States to:
(1) Retain a billfish on board a vessel with a pelagic longline on
board or harvested by gear other than rod and reel, as specified in
Sec. 635.21(d)(2).
(2) Use more than one hook per bait or lure in a hook-and-line
fishery for billfish, as specified in Sec. 635.21(d)(2)(ii).
(3) Exceed the vessel trip limit for billfish specified in
Sec. 635.22(b)(1).
(4) Transfer a billfish at sea, as specified in Sec. 635.29(a).
(5) Fail to maintain a billfish in the form specified in
Sec. 635.30(b).
(6) Sell or purchase a billfish, as specified in Sec. 635.31(b).
(d) Shark. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Exceed a recreational catch limit for shark, as specified in
Sec. 635.22(c).
(2) Exceed a trip limit for shark, as specified in Sec. 635.24(a).
(3) Retain, possess, or land a shark of a species group when the
fishery for that species group is closed, as specified in
Sec. 635.28(b)(1) and (2).
(4) Sell or purchase a shark of a species group when the fishery
for that species group is closed, as specified in Sec. 635.28(b)(3).
(5) Transfer a shark at sea, as specified in Sec. 635.29(b).
(6) Remove the fins from a shark, or from one of the additional
shark species listed in Table 2 in Appendix A to this part, and discard
the remainder, or otherwise fail to maintain a shark in its proper
form, as specified in Sec. 635.30(c)(1) through (c)(4).
(7) Have on board a fishing vessel, sell, or purchase shark fins
that are disproportionate to the weight of shark carcasses, as
specified in Sec. 635.30(c)(2) and (3).
(8) Fail to have shark fins and carcasses weighed and recorded, as
specified in Sec. 635.30(c)(3).
(9) Fail to comply with the restrictions on sale and purchase of a
shark, as specified in Sec. 635.31(c).
(10) Retain, possess, sell, or purchase a prohibited shark.
(11) Falsify information submitted under Sec. 635.16(d)(2) or
(d)(4) in support of an application for an ILAP or an appeal of NMFS's
denial of an initial limited access permit for shark.
(e) Swordfish. It is unlawful for any person or vessel subject to
the jurisdiction of the United States to:
(1) Purchase, barter for, trade for, or import a swordfish without
a dealer permit, as specified in Sec. 635.4(g)(3).
(2) Fail to comply with the restrictions on use of a pelagic
longline specified in Sec. 635.21(b) and (c).
(3) When the directed fishery for swordfish is closed, exceed the
limits specified in Sec. 635.28(c)(1)(i) and (ii).
(4) When the incidental catch fishery for swordfish is closed,
possess, land, sell, or purchase a swordfish, as specified in
Sec. 635.28(c)(2).
(5) Transfer at sea a swordfish, as specified in Sec. 635.29(a).
(6) Fail to maintain a swordfish in the form specified in
Sec. 635.30(d).
(7) Fail to comply with the restrictions on sale and purchase of a
swordfish, as specified in Sec. 635.31(d).
(8) Fish for North Atlantic swordfish from, or possess or land
North Atlantic swordfish on board a vessel, using or having on board
gear other than pelagic longline, harpoon, rod and reel, or handline.
(9) Fish for swordfish from the South Atlantic swordfish stock
using any gear other than pelagic longline.
(10) Fail to comply with the documentation requirements for the
importation of a swordfish, or part thereof, that is less than the
minimum size, as specified in Sec. 635.46.
(11) Falsify information submitted under Sec. 635.16(d)(2) or
(d)(4) in support of an application for an ILAP or an appeal of NMFS's
denial of an initial limited access permit for swordfish.
Appendix A to Part 635--Species Tables
Table 1 of Appendix A to Part 635--Sharks
(a) Large coastal sharks:
(1) Ridgeback sharks:
Sandbar, Carcharhinus plumbeus
Silky, Carcharhinus falciformis
(2) Non-ridgeback sharks:
Blacktip, Carcharhinus limbatus
Bull, Carcharhinus leucas
Great hammerhead, Sphyrna mokarran
Lemon, Negaprion brevirostris
Nurse, Ginglymostoma cirratum
Scalloped hammerhead, Sphyrna lewini
Smooth hammerhead, Sphyrna zygaena
Spinner, Carcharhinus brevipinna
Tiger, Galeocerdo cuvieri.
(b) Small coastal sharks:
Atlantic sharpnose, Rhizoprionodon terraenovae
Blacknose, Carcharhinus acronotus
Bonnethead, Sphyrna tiburo
Finetooth, Carcharhinus isodon
(c) Pelagic sharks:
Oceanic whitetip, Carcharhinus longimanus
Porbeagle, Lamna nasus
Shortfin mako, Isurus oxyrinchus
Thresher, Alopias vulpinus.
(d) Prohibited sharks:
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Atlantic angel, Squatina dumerili
Basking, Cetorhinus maximus
Bigeye sand tiger, Odontaspis noronhai
Bigeye sixgill, Hexanchus vitulus
Bigeye thresher, Alopias superciliosus
Bignose, Carcharhinus altimus
Blue, Prionace glauca
Caribbean reef, Carcharhinus perezi
Caribbean sharpnose, Rhizoprionodon porosus
Dusky, Carcharhinus obscurus
Galapagos, Carcharhinus galapagensis
Longfin mako, Isurus paucus
Narrowtooth, Carcharhinus brachyurus
Night, Carcharhinus signatus
Sand tiger, Odontaspis taurus
Sevengill, Heptranchias perlo
Sixgill, Hexanchus griseus
Smalltail, Carcharhinus porosus
Whale, Rhincodon typus
White, Carcharodon carcharias
Table 2 of Appendix A to Part 635--Additional Shark Species
Catsharks-Scyliorhinidae
Blotched catshark, Scyliorhinus meadi
Broadgill catshark, Apristurus riveri
Chain dogfish, Scyliorhinus retifer
Deepwater catshark, Apristurus profundorum
Dwarf catshark, Scyliorhinus torrei
Iceland catshark, Apristurus laurussoni
Marbled catshark, Galeus arae
Smallfin catshark, Apristurus parvipinnis
Dogfish sharks--Squalidae
Bigtooth cookiecutter, Isistius plutodus
Blainville's dogfish, Squalus blainvillei
Bramble shark, Echinorhinus brucus
Broadband dogfish, Etmopterus gracilispinnis
Caribbean lanternshark, Etmopterus hillianus
Cookiecutter shark, Isistius brasiliensis
Cuban dogfish, Squalus cubensis
Flatnose gulper shark, Deania profundorum
Fringefin lanternshark, Etmopterus schultzi
Great lanternshark, Etmopterus princeps
Green lanternshark, Etmopterus virens
Greenland shark, Somniosus microcephalus
Gulper shark, Centrophorus granulosus
Japanese gulper shark, Centrophorus acuus
Kitefin shark, Dalatias licha
Lined lanternshark, Etmopterus bullisi
Little gulper shark, Centrophorus uyato
Portuguese shark, Cetroscymnus coelolepis
Pygmy shark, Squaliolus laticaudus
Roughskin spiny dogfish, Squalus asper
Smallmouth velvet dogfish, Scymnodon obscurus
Smooth lanternshark, Etmopterus pusillus
Spiny dogfish, Squalus acanthias
Sawsharks--Pristiophoridae
American sawshark, Pristiophorus schroederi
Smoothhound Sharks--Triakiidae
Florida smoothhound, Mustelus norrisi
Smooth dogfish, Mustelus canis
[FR Doc. 99-1065 Filed 1-15-99; 8:45 am]
BILLING CODE 3510-22-F