[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]]

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Part II





Department of Commerce





_______________________________________________________________________



National Oceanic and Atmospheric Administration



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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  

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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

[[Page 3158]]

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,

[[Page 3190]]

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:

[[Page 3194]]

    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