[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Rules and Regulations]
[Pages 29090-29160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13090]



[[Page 29089]]

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Part II





Department of Commerce





_______________________________________________________________________



National Oceanic and Atmospheric Administration



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15 CFR Part 902



50 CFR Part 285 et al.



Atlantic Highly Migratory Species Fisheries; Fishery Management Plan, 
Plan Amendment, and Consolidation of Regulations; Final Rule

  Federal Register / Vol. 64, No. 103 / Friday, May 28, 1999 / Rules 
and Regulations  

[[Page 29090]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 285, 300, 600, 630, 635, 644, and 678

[Docket No. 981216308-9124-02; I.D. 071698B]
RIN 0648-AJ67


Atlantic Highly Migratory Species (HMS) Fisheries; Fishery 
Management Plan (FMP), Plan Amendment, and Consolidation of Regulations

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

ACTION: Final rule.

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

SUMMARY: NMFS issues final regulations to implement the Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), 
and Amendment 1 to the Atlantic Billfish Fishery Management Plan 
(Billfish FMP). This action implements the requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), implements the recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT) as required 
by the Atlantic Tunas Convention Act (ATCA), and consolidates 
regulations for HMS conservation and management into one part of the 
Code of Federal Regulations (CFR) to comply with the President's 
Regulatory Reinvention Initiative.

DATES: This rule is effective July 1, 1999 except that the addition of 
Sec. 635.25 and the removal and reservation of Secs. 285.22 and 
644.21(a) are effective May 24, 1999, the revisions to Sec. 600.725(v) 
will be effective July 26, 1999, Sec. 635.69 will be effective 
September 1, 1999, and Sec. 635.4(b) will be made effective when the 
Office of Management and Budget (OMB) approves the information 
collection contained therein. When approved, NMFS will publish in the 
Federal Register notification of the effective date of Sec. 635.4(b).

ADDRESSES: Copies of the HMS FMP, Amendment 1 to the Billfish FMP, the 
final rule and supporting documents, including the Revised Final 
Environmental Impact Statements (FEIS) and the Final Regulatory 
Flexibility Analyses (FRFA), summaries of these items, or information 
on sources for permit applications and reporting forms can be obtained 
from 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.

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: To meet requirements of the Magnuson-Stevens 
Act, NMFS prepared an FMP for Atlantic tunas, swordfish and sharks and 
an amendment to the Atlantic 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 
published a proposed rule to implement the FMPs on January 20, 1999 (64 
FR 3154) and extended the comment periods for the FMP documents from 
January 25 to March 4, 1999, to coincide with the comment period on the 
proposed rule. NMFS scheduled public hearings to receive comments on 
the FMPs and proposed regulations, announced in the Federal Register on 
January 22, 1999 (64 FR 3486).
    NMFS did not identify a preferred alternative for BFT stock 
rebuilding in the draft HMS FMP because new information on stock status 
from the September 1998 stock assessment by the Standing Committee on 
Research and Statistics (SCRS), as well as the results of negotiations 
at the November 1998 ICCAT meeting, were not available at the time. On 
February 25, 1999, NMFS published a Notice of Availability of an 
addendum to the Draft HMS FMP and proposed supplemental regulations to 
implement the addendum (64 FR 9298). The addendum and supplemental rule 
contained alternatives and updated this information only for BFT: BFT 
rebuilding, domestic allocations, quota adjustment procedures, measures 
to reduce dead discards of BFT, General category effort controls for 
the 1999 fishing season, and data collection requirements.
    On March 4, 1999, NMFS announced an additional public hearing and 
further extended the comment period on the FMPs and proposed rules from 
March 4 to March 12, 1999 (64 FR 10438). All comments received by March 
12, 1999, whether specifically directed to any of the documents or to 
the proposed rule and its supplement, were considered in the decisions 
on the final documents and the final rule.
    Information regarding the management of HMS under the draft HMS FMP 
and Draft Amendment 1 to the Atlantic Billfish FMP was provided in the 
preamble to the proposed regulations to implement those FMPs and in the 
preamble to the supplemental rule to implement the HMS FMP addendum and 
is not repeated here. Additional background information can be found in 
the FMPs and supporting documents available from NMFS (see ADDRESSES). 
Although the codified regulatory text contained in the supplemental 
proposed rule to implement the HMS FMP addendum has been incorporated 
into this final rule, the uncodified 1999 bluefin tuna landings quota 
specifications proposed in that same document will be published 
elsewhere in this Federal Register issue.
    NMFS received approximately 5,000 comments via letter, postcard, 
facsimile, and electronic mail. Many individuals and groups provided 
verbal and written comments at public hearings. Those comments are 
summarized here followed by NMFS' responses thereto.

Comments and Responses

General

    Comment 1: Quota management is inappropriate for a recreational 
fishery. I do not support a recreational closure of any fishery.
    Response: Recreational landings of bluefin tuna and blue and white 
marlin are subject to quotas or caps due to international management 
recommendations. In addition, domestic regulations prohibit retention 
of certain species by all user groups, including a subset of shark 
species and spearfish, because these species are either particularly 
vulnerable or little is known about their status. In the final HMS FMP 
and Billfish FMP amendment, NMFS implements measures that are designed 
to increase flexibility and allow continued participation in the 
recreational fishery despite the caps or quotas. For example, the 
Billfish FMP amendment manages the recreational fishery primarily 
through the use of minimum sizes, rather than bag limits or seasonal 
closures.
    Comment 2: Our coastal and offshore resources need more protection 
from

[[Page 29091]]

foreign fishing fleets; NMFS is disadvantaging U.S. fishermen; NMFS 
should not implement all these domestic measures because foreign fleets 
will catch the fish instead.
     Response: There is no foreign fishing for HMS within the U.S. EEZ. 
Atlantic-wide, NMFS works through the ICCAT process as well as 
bilateral efforts (Canada, Mexico) to address issues of common concern 
in the management of HMS.
    Comment 3: NMFS has to implement the strongest possible domestic 
measures for protecting these fine species [HMS] as a safeguard against 
inaction at the international level.
     Response: NMFS agrees that strong domestic measures must be taken 
to rebuild and maintain HMS. However, for most HMS, international 
cooperation is essential to a successful management program. The final 
HMS FMP and Billfish FMP amendment establish a foundation for the 
development of international rebuilding programs for overfished HMS.
    Comment 4: These regulations propose to impose a host of 
restrictions and controls on recreational fishing that are unnecessary 
and burdensome, and do little or nothing to accomplish the basic goal 
of rebuilding HMS, including billfish fisheries that are overfished.
     Response: NMFS disagrees. Rebuilding HMS requires improved 
monitoring and accounting for all sources of mortality, including 
recreational fisheries. In addition, NMFS is required under Magnuson-
Stevens Act and ATCA to provide comparable monitoring of all fisheries. 
The final HMS FMP and billfish FMP Amendment provide for new measures 
that will enhance monitoring and knowledge of all HMS fisheries, 
including recreational fisheries, and that implement controls on 
recreational landings under international agreement, such as the limit 
on school bluefin tuna and on marlin landings. Nevertheless, the final 
FMP and amendment reflect public comment on recreational restrictions, 
as some measures have been reduced and/or made voluntary in nature, 
such as participation in workshops and in observer programs.
    Comment 5: The regulations should specify that U.S. citizens, while 
fishing on foreign vessels in foreign waters, may comply with the 
regulations for that foreign venue, even if they are less restrictive 
than U.S. regulations, and must comply if they are more restrictive.
    Response: National standard (NS) 3 requires ``To the extent 
practicable, an individual stock of fish shall be managed as a unit 
throughout its range, and interrelated stocks of fish shall be managed 
as a unit or in close coordination.'' Previous Atlantic billfish 
regulations, implemented solely under the authority of the Magnuson 
Act, restricted fishing-related activities (possession and retention, 
size limits, gear limitations and incidental catch restrictions) within 
the jurisdictional limits of the U.S. EEZ. U.S.-flagged commercial and 
recreational vessels operating exclusively outside the U.S. EEZ were 
not affected by these restrictions, although the sale, purchase or 
barter of Atlantic billfish harvested from the management unit (i.e., 
for blue and white marlin, the Atlantic Ocean north of 5o N. 
latitude) was prohibited. However, implementation of Atlantic blue 
marlin and white marlin regulations under both the Magnuson-Stevens Act 
and ATCA will make these regulations applicable to all U.S. citizens 
and U.S.-flagged commercial and recreational vessels, regardless where 
fishing. NMFS disagrees that such application of the Atlantic billfish 
regulations is unfair and too restrictive on U.S. fishermen. The 
regulations will be much more effective if they are extended under the 
authority of ATCA to cover the operational area of U.S.-flagged vessels 
in the Atlantic Ocean, and the range of the impacted stock. The 
rebuilding of Atlantic billfish stocks requires reductions in mortality 
Atlantic-wide, necessitating management measures for Atlantic billfish 
throughout their range.
    Comment 6: The language concerning management through international 
measures is incompatible with the language of the Magnuson-Stevens Act. 
It is clear that the United States is to promote optimum yield (OY), 
rather than become involved with the details of foreign management 
measures.
    Response: NMFS supports the promotion of OY in all fisheries, 
including OY as part of a rebuilding plan for overfished species. For 
most HMS, international cooperation is essential to a successful 
management program. In addition to continued bilateral efforts, the 
final HMS FMP and billfish FMP amendment provide the foundation for the 
development of international rebuilding programs for overfished HMS.
    Comment 7: There should be an interim final rule for the public to 
review and comment upon the final measures before the rule becomes 
effective.
    Response: NMFS disagrees. There was an extensive comment period on 
the draft HMS FMP and draft billfish FMP amendment, the bluefin tuna 
addendum to the HMS FMP, as well as the proposed rule and supplement to 
the proposed rule. Nearly 5,000 comments were received, along with 
record attendance at the 27 public hearings, and AP meetings to address 
public comment. It is clear that the public was fully aware of and took 
advantage of the opportunity to comment on these proposals. The final 
HMS FMP and billfish FMP amendment clearly demonstrate that, where 
possible, NMFS has effected changes that meet the same objectives but 
with less impact on the affected communities. Finally, these documents 
provide a framework for the continued management of these species, and 
delays will only hinder progress.
    Comment 8: Framework provisions should be taken out of the FMP, as 
they are not understood by the public, and there is no oversight on the 
framework procedures used by NMFS.
    Response: NMFS disagrees. The purpose of the framework process is 
to facilitate timely management of HMS. Measures proposed under the 
framework process will be subject to public comment and at least one 
public hearing, and if appropriate, an AP meeting as well. NMFS has 
clarified the objectives to which these framework provisions apply, and 
somewhat narrowed the range of framework measures from the proposed 
framework.
    Comment 9: Commercial interests are favored over good scientific 
management of the fish, and over interests of the long-standing 
recreational fishery.
    Response: NMFS disagrees. The final measures in the HMS FMP and 
billfish amendment are based on the best scientific information 
available and include closure of the commercial fishery for sharks, 
swordfish and pelagic longline fishing of BAYS to all but those active 
in the fishery. The final shark measures include substantial reductions 
in commercial quotas and an expanded list of prohibited species. 
Bluefin tuna are subject to an international rebuilding program, and a 
foundation is established for the development of an international 
rebuilding program for swordfish, bigeye tuna, and billfish at future 
ICCAT meetings. Recreational measures have been honed to focus on those 
that are most effective while still meeting management goals.
    Comment 10: The HMS FMP is extremely long and complicated covering 
many species. It would have been better to have separate hearings on 
each species rather than all HMS. Timing and location of public 
hearings need more input from public sector.
    Response: The development of the HMS FMP has greatly benefitted 
from the holistic approach to the management of swordfish, sharks, and

[[Page 29092]]

tunas. Many of these species are harvested by the same commercial and 
recreational user groups, and an integrated FMP affords an improved 
management strategy for all species. The billfish FMP remains separate, 
however, due to the exclusively recreational nature of this fishery. 
Nevertheless, NMFS has and will continue to hold joint AP meetings on 
issues of common concern, and draw important parallels between 
management of billfish and other HMS. Location and timing of public 
hearings are developed in consultation with AP members, the location of 
current participants, and within the schedule required to satisfy a 
variety of legal constraints and logistic limitations.
    Comment 11: NMFS has not implemented programs to provide reliable, 
real time monitoring of recreational catch by private anglers as 
required by law.
    Response: NMFS disagrees. The HMS FMP and billfish FMP amendment 
add to existing recreational data reporting requirements, including 
expanded permitting and logbook requirements, tournament registration 
and reporting, and an observer program. Recreational catch and harvest 
of HMS and billfish are also monitored by the Marine Recreational 
Fisheries Statistics Survey (MRFSS), the Large Pelagic Survey, 
mandatory self-reporting of all bluefin tuna landed, and individual 
state recreational fisheries surveys. In addition, the framework 
measures in the FMP and amendment allow for expanded recreational 
monitoring. NMFS will continue to work with the APs and affected public 
to expand and develop these efforts to improve recreational monitoring.
     Comment 12: The HMS FMP is biased against the recreational fishing 
industry and favors commercial fisheries. The HMS FMP does not address 
the destructive nature of longline fishing. The FMP is overly 
burdensome for the collection of recreational fisheries data.
    Response: NMFS disagrees. The HMS FMP is focused on reducing 
fishing mortality for overfished species of sharks, tunas, and 
swordfish. The HMS FMP also addresses those resources that are 
currently considered to be fully fished. The final measures in the HMS 
FMP include closure of the commercial fishery for sharks, swordfish and 
pelagic longline fishing of BAYS to all but those active in the 
fishery. The final shark measures include substantial reductions in 
commercial quotas and an expanded list of prohibited species. Bluefin 
tuna are subject to an international rebuilding program, and a 
foundation is established for the development of an international 
rebuilding program for swordfish, bigeye tuna, and billfish at future 
ICCAT meetings. The final HMS FMP and Billfish FMP Amendment provide 
for new measures that will enhance monitoring and reporting in all HMS 
fisheries, both commercial and recreational. The final actions reflect 
public comment on recreational restrictions, as some measures have been 
reduced and/or made voluntary in nature, such as participation in 
workshops and in observer programs.
     Comment 13: Recreational landing estimates for pelagic species are 
generated from the MRFSS database and these estimates of landings are 
not accurate.
    Response: NMFS disagrees. The MRFSS data program is designed to 
estimate recreational catch and effort over broad areas. While the 
program admittedly does not capture information on pulse fisheries or 
rare event fisheries, such as billfish and swordfish, the generated 
estimates and their proportional standard error estimates give an 
indication of their statistical validity. The Large Pelagic Survey 
(LPS) is designed to better capture catch and effort data on HMS. NMFS 
plans to continue this survey and consider expanding the program to 
additional geographic areas.
    Comment 14: Except for billfish, no basis exists for how the agency 
allocates catch among user groups.
    Response: NMFS disagrees. NMFS bases all allocation of fishing 
privileges on NS 4, which requires all allocations, should they be 
necessary, to be fair and equitable to all such fishermen, be 
reasonably calculated to promote conservation, and carried out in such 
manner that no particular individual, corporation, or other entity 
acquires an excessive share of such privileges.
     Comment 15: NMFS penalizes fishermen who provide data by using 
those data to place restrictions on the fishermen.
     Response: NMFS disagrees. NS 1 calls for the prevention of 
overfishing and NS 2 states that management measures will use the best 
scientific information available. Data are used to monitor the fishery 
to prevent overfishing and to support management measures to ensure the 
future health of the resource. If a fishery is judged to be overfished, 
all sources of information will be assessed to address the problem. 
Should fishermen not provide information, or provide inaccurate 
information, the management measures developed by NMFS to remedy the 
overfishing could be more burdensome than necessary on the fishing 
sectors depending on the fishery resource.
    Comment 16: NMFS should adopt a more precautionary fishing 
mortality threshold that is lower than the fishing mortality that will 
result in maximum sustainable yield (MSY).
    Response: NMFS agrees and has adopted 0.75FMSY, which is 
consistent with precautionary technical guidance for NS 1 established 
by NMFS scientists.

Atlantic Billfish

    Comment 1: The selected alternatives do not reflect any of the 
advice given by the Billfish AP.
     Response: NMFS disagrees. The advice from the Billfish AP was 
noted under each action in the draft FMP amendment. The agency's 
rationale for selecting preferred alternatives, including those that 
were not supported by the Billfish AP was also included in the plan. 
The Billfish AP was established under section 302(g)(4) of the 
Magnuson-Stevens Act, ``to assist in the collection and evaluation of 
information relevant to the development of any fishery management plan 
or amendment.'' However, it is important to note that decisions and 
recommendations made by the AP are advisory in nature. Many of the 
final actions are based on advice from the APs.
    Comment 2: NMFS violated NS 1 of the Magnuson-Stevens Act and NEPA 
by not including a viable rebuilding plan for blue and white marlin in 
the draft FMP amendment.
     Response: NMFS disagrees. The draft FMP amendment contained 
elemental components for rebuilding on an Atlantic-wide basis. However, 
the final amendment more clearly defines the relationship between 
domestic management actions and international rebuilding alternatives. 
Domestic measures ensure U.S. compliance with the 1997 ICCAT 
recommendation. The final FMP includes final actions to establish the 
foundation for the development of an international 10-year rebuilding 
plan. NMFS will work with ICCAT member nations to adopt a rebuilding 
program that meets the standards of the Magnuson-Stevens Act and the 
NSGs, including an appropriate rebuilding time period, targets, limits, 
and explicit interim milestones for recovery, expressed in terms of 
measurable improvements of overfished stocks. The final FMP amendment 
lists specific management measures that could be a part of the 
international strategy.
    Comment 3: NMFS should scrap the draft Atlantic billfish FMP 
amendment and develop a new document focusing on rebuilding overfished 
billfish stocks

[[Page 29093]]

by reducing bycatch in the U.S. pelagic longline fishery.
     Response: The multidimensional focus of the draft FMP amendment 
addressed the 1997 ICCAT recommendation and the U.S. mandates under the 
Magnuson-Stevens Act and ATCA. The actions taken in the final FMP 
amendment are critical steps in the ICCAT process, formulating the 
basis for international regulations that will rebuild overfished 
billfish stocks. Rebuilding overfished Atlantic billfish stocks is not 
possible solely by reducing or eliminating bycatch in the U.S. pelagic 
longline fishery due to the small percentage of mortality caused by 
U.S. vessels. The HMS FMP will be the primary tool for designing, 
analyzing and implementing management measures to control bycatch in 
association with all HMS commercial fisheries, including Atlantic 
billfish.
    Comment 4: The management measures included in the Billfish 
framework provisions should be dropped because they would allow NMFS to 
implement these regulatory actions without input from the Billfish 
Advisory Panel or from the public.
     Response: NMFS disagrees. Both framework adjustment measures and 
proposed FMP amendments must go through extensive public and analytical 
review, including development and review by the APs, if appropriate.
    Comment 5: Actions taken by the United States alone cannot 
sufficiently reduce billfish mortality levels Atlantic-wide to rebuild 
overfished billfish stocks. Therefore, management actions taken by 
NMFS, without the support and adoption by ICCAT, are a waste of time 
and money.
     Response: NMFS disagrees. While unilateral management action by 
the United States cannot rebuild overfished billfish stocks, the United 
States has been a leader in conservation of Atlantic billfish, and has 
taken actions (e.g., the 1988 Atlantic billfish FMP) to show our 
willingness to take the critical steps necessary to conserve these 
stocks. This fact has been a primary negotiation tool at ICCAT, and it 
is questionable whether the recent ICCAT actions (i.e., the 1997 and 
1998 ICCAT recommendations) could have been possible without these 
efforts. Therefore, the final actions and framework provisions in the 
FMP amendment and HMS FMP will form the foundation for the development 
of rebuilding plans following the 2000 (marlins) and 2001 (sailfish) 
assessments.
    Comment 6: NMFS received comments supporting and opposing a 10-year 
recovery period for blue marlin and white marlin. Comments against the 
10-year recovery period include: the recovery time period of 10 years 
is too long; a shorter time frame could be justified based on the life 
history characteristics of Atlantic blue and white marlin; the recovery 
to biomass rebuilding target within 10 years is impossible without 
international cooperation by Atlantic commercial fishing operations; 
and rebuild overfished populations as quickly as possible, not in the 
maximum period allowed by law.
     Response: NMFS maintains the recovery period of 10 years in the 
final FMP amendment. Life history is not the sole consideration for 
determining recovery time period alternatives. The Magnuson-Stevens Act 
specifies that a recovery period be as short as possible, taking into 
account the status and biology of any overfished stocks of fish, as 
well as the needs of fishing communities, recommendations by 
international organizations in which the United States participates 
(e.g., ICCAT), and interactions of the overfished stock of fish with 
the marine ecosystem. The final guidelines for NS 1 indicate that these 
factors may be used to adjust the rebuilding period up to 10 years. 
NMFS proposed a 10-year recovery period to minimize negative impacts on 
recreational and commercial communities/entities. Agreements at ICCAT 
may dictate that rebuilding of Atlantic billfish may take up to 10 
years, indeed even longer.
    Comment 7: The model used to generate the recovery periods for blue 
marlin and white marlin may provide overly optimistic projections of 
the time required for rebuilding.
     Response: The non-equilibrium stock-production model used to 
generate recovery periods was based on the best available science at 
the time the draft FMP amendment was developed. NMFS maintains these 
results in the final FMP amendment, but will review the applicability 
of this model following the 2000 (marlins) and 2001 (sailfish) Standing 
Committee for Research and Statistics (SCRS) stock assessments. 
Subsequently, modifications may be warranted in the recovery period or 
other components of the rebuilding plan.
    Comment 8: The minimum stock size thresholds (MSSTs) selected for 
Atlantic billfish in the draft FMP amendment are too low and should be 
more precautionary.
     Response: NMFS agrees that the MSSTs selected for Atlantic 
billfish in the draft FMP amendment should be more precautionary. The 
formulation of MSST for Atlantic billfish using (1-M)BMSY, 
where M is the instantaneous natural mortality rate, is a proxy for the 
minimum stock size at which rebuilding to the maximum sustainable yield 
level would be expected to occur within 10 years if the stock or stock 
complex were exploited at the maximum fishing mortality threshold. 
Quantitative data necessary to calculate natural mortality rates are 
not available; however, reasonable values can be estimated based on 
life history parameters and age structure of the population. Estimates 
of M range from 0.05 to 0.15 for Atlantic blue marlin, from 0.1 to 0.2 
for Atlantic white marlin, and from 0.2 to 0.3 for western Atlantic 
sailfish. The draft FMP utilized values near the lower-end of the 
precautionary range; however, based on further analyses, the MSST 
values selected for the final FMP amendment for Atlantic blue and white 
marlin and sailfish are 0.95BMSY, 0.85BMSY, and 
0.75BMSY, respectively.
     Comment 9: NMFS received comments both supporting and opposing the 
extension of the management unit for Atlantic blue and white marlin to 
the entire Atlantic Ocean, and implementation of regulatory actions 
under ATCA. These comments include the following: the extension is an 
important step closing a loophole in the regulations that allows 
Atlantic billfish to be caught and sold south of 5o N; this 
measure unfairly restricts U.S. recreational anglers fishing in foreign 
waters, especially when fishing in foreign tournaments; U.S. commercial 
vessels operating under foreign contracts or in countries where all 
fish caught must be landed will be adversely affected; enforcement of 
these regulations would be impractical and costly for the relatively 
few U.S.-flagged commercial and recreational vessels operating in 
foreign waters that would be impacted by this proposed management 
measure.
     Response: NMFS agrees with comments supporting the proposed 
preferred alternative to extend the management unit for Atlantic blue 
and white marlin to the entire Atlantic Ocean, and implementation of 
regulatory actions under ATCA. Expansion of the regulatory authority is 
supported by NS 3 that requires ``To the extent practicable, an 
individual stock of fish shall be managed as a unit throughout its 
range, and interrelated stocks of fish shall be managed as a unit or in 
close coordination.'' Implementation of Atlantic billfish regulations 
under both the Magnuson-Stevens Act and ATCA will make these 
regulations applicable to all U.S. citizens and U.S.-flagged commercial 
and recreational vessels, regardless of where they are fishing. NMFS 
disagrees

[[Page 29094]]

that such application of the Atlantic billfish regulations is unfair 
and too restrictive on U.S. fishermen. Regulations will be much more 
effective if they are extended under the authority of ATCA to cover the 
operational area of U.S.-flagged vessels in the Atlantic Ocean. 
Commercial vessels fishing under lease arrangements in other countries 
may need to apply for Exempted Fishing Permits (EFPs) in order for the 
agency to collect necessary management information, and to prevent 
violations of U.S. law. Since the same vessels potentially catching 
billfish are also operating under other Atlantic-wide fishing 
prohibitions (north and south Atlantic swordfish) that require 
enforcement and monitoring, problems with additional enforcement of 
billfish regulations impacting U.S. commercial pelagic longline vessels 
operating in the Atlantic are expected to be minimal.
    Comment 10: NMFS should implement time/area closures specifically 
to reduce bycatch of Atlantic billfish.
    Response: NMFS disagrees. Based on the currently available data, 
NMFS does not think implementing large closed areas with the sole 
objective of reducing billfish bycatch is practicable because of the 
minimal effect on billfish and the significant social and economic 
impacts on pelagic longline fishermen and their communities. However, 
NMFS is preparing additional analyses to identify large areas to 
protect small swordfish and will consider the impacts of these closures 
on billfish stocks.

Use of Best Available Science in Billfish Management

     Comment 1: NMFS violates NS 2 by ignoring or inappropriately 
applying available scientific information in the draft FMP amendment.
     Response: NMFS disagrees. The draft FMP amendment used the most 
recent data available. Scientific information and data sources used in 
formulation of the plan include the MRFSS, Large Pelagic Survey, 
Recreational Billfish Survey, Cooperative Tagging Center, SCRS stock 
assessments and reports, NMFS research/reports, as well as research 
funded by the agency and independent research, including publications 
in scientific journals, preliminary reports on ongoing research, and 
personal communication with experts in the field. NMFS has developed a 
comprehensive research and monitoring plan (October, 1998) to support 
the conservation and management of Atlantic HMS as required by 
971(i)(b) of ATCA. The objective of this comprehensive research and 
monitoring plan is to ensure that NMFS science is of the highest 
quality and that it advances the agency's ability to make sound 
management decisions.
    Comment 2: NMFS should limit regulatory changes to recommendations 
by committees comprised of professional scientists, not politicians, in 
order to reflect the best available science.
     Response: NMFS disagrees. The Magnuson-Stevens Act, ATCA, and 
ICCAT recognize the highly migratory nature of these international 
fisheries, which necessitates an interdisciplinary approach to 
fisheries management. The APs play an important role in advising NMFS 
not just on science, but on practical constraints, as well as social 
and economic impacts of various management alternatives.

Fair and Equitable Allocation of Restrictions/Benefits Among Billfish 
Fishery Sectors

    Comment 1: NMFS is apparently relying only on reductions in U.S. 
recreational landings to rebuild overfished billfish stocks, which is 
inconsistent with NS 4. The recreational billfish community is 
responsible for only a small portion of Atlantic-wide mortalities and 
has a record of voluntary conservation as evidenced by the high 
percentage of released billfish, yet the majority of management 
measures included by NMFS in the draft Atlantic billfish FMP amendment 
are unfairly focused on recreational anglers.
     Response: NMFS agrees that the recreational billfish community is 
responsible for only a small portion of Atlantic-wide mortalities and 
commends their voluntary conservation. However, NMFS disagrees that the 
management measures included in the draft Atlantic billfish FMP 
amendment were unfairly focused on recreational anglers. The draft FMP 
amendment specifically stated that the level of reductions in landings 
required to rebuild overfished billfish stocks will necessitate 
international cooperation; reduction or even elimination of all sources 
of U.S. billfish mortality alone is insufficient to achieve rebuilding 
as the United States is responsible for approximately 5 percent of the 
Atlantic-wide mortalities of marlin. Reductions of 2,443 mt from 1996 
total Atlantic landings will be required to rebuild stocks of blue 
marlin and 638 mt for white marlin; the total U.S. reported mortality 
of Atlantic marlin during 1996 was 302.3 mt. The final Atlantic 
Billfish FMP Amendment includes increases in minimum size limits in 
order to reduce landings; the 25-percent reduction in blue and white 
marlin landings will result in reductions of U.S. recreational landings 
of approximately 21,000 pounds (9.52 mt); however, on a larger scale, 
this recommendation will result in nearly a 3.4 million decrease in 
Atlantic-wide marlin landings from 1996 levels by other ICCAT member 
countries. The 1997 ICCAT recommendation also requires improvement in 
monitoring, data collection and reporting in all Atlantic billfish 
fisheries.
    Comment 2: Continuing the prohibition on commercial landings of 
Atlantic billfish, while allowing recreational fishermen to land 
billfish, is unfair and discriminatory.
     Response: NMFS disagrees. A fundamental element of the 1988 
Atlantic billfish FMP was the prohibition of possession and sale of 
commercially caught billfish within the U.S. EEZ. Allowing recreational 
fishermen to land billfish is consistent with traditional usage of this 
fishery. A major objective of the FMP amendment is to develop a 
rebuilding plan for overfished billfish stocks, and although unilateral 
actions by the United States will not rebuild these highly migratory 
species, additional mortalities experienced on these stocks by allowing 
U.S. commercial harvest would run counter to the objectives of NS 1 and 
the FMP amendment. The Billfish FMP amendment retains the prohibition 
of possession and sale of commercially-caught billfish.

Community Impacts Resulting From Billfish Measures

     Comment 1: Destin, FL, Port Aransas, TX, and other coastal towns 
were not included in the community analysis of the draft Atlantic 
billfish FMP amendment. The Atlantic billfish recreational fishery is 
an important component of these locations, therefore, these areas 
should be included in any analysis of economic and community impacts of 
management restrictions.
     Response: NMFS agrees that some towns where the Atlantic billfish 
recreational fishery is an important component were not included in the 
community analysis of the draft Atlantic billfish FMP amendment. 
However, the billfish community profiles included in the draft FMP 
amendment are not intended as an exhaustive list of where recreational 
billfish angling is an important component of the local economy and 
culture, rather they provide a broad perspective on representative 
areas. Consistent with NS8, the final FMP amendment first identifies 
and describes representative Atlantic billfish communities (on the 
basis of geographic location, gear-type

[[Page 29095]]

and operational framework of the various components of the fishery) and 
then assesses their differing nature and the magnitude of the likely 
effects of this FMP amendment. The final FMP amendment also summarizes 
anticipated social impacts resulting from the implementation of the 
Atlantic billfish FMP amendment on a broader scale, based on the 
comments received during the comment period for the draft FMP amendment 
and proposed rule. Public hearings for the proposed rule to implement 
the draft Atlantic billfish FMP amendment were held in a wide range of 
locations (including Panama City, near Destin and Ft. Walton and Port 
Aransas) to collect comments from numerous billfish angling 
communities.
    Comment 2: Destin, Florida has changed an important billfish 
tournament to an all-release format based on the economic threat of a 
potential zero bag limit included in the proposed rule. If sponsorships 
and participation in the tournament decline because of the change to 
catch-and-release strategy, the local economy will be negatively 
impacted, as will charities that have historically received financial 
support from this event.
     Response: NMFS evaluated thousands of comments on the issue of 
economic impacts of an adjustable bag limit and other measures included 
in the draft plan, some of which merited changes in the final FMP 
amendment. While the intent of the draft FMP amendment was not to cause 
severe impacts to communities, the change to a ``no-kill'' tournament 
format should be applauded and certainly is consistent with the 
precautionary management strategy of the 1996 Magnuson-Stevens Act. It 
should be noted that many other tournaments have gone to an all-release 
format without a reduction in participation. NMFS restates advice of 
the 1988 Atlantic Billfish FMP, encouraging all tournaments to adopt a 
catch-and-release philosophy.

Billfish Harvest Controls and Retention Limits

    Comment 1: NMFS should require catch-and-release only of Atlantic 
billfish by all recreational anglers. Allowing recreational anglers to 
land billfish is inconsistent and counterproductive with the objectives 
of the FMP amendment, and undermines the goals of the FMP. Closing the 
recreational Atlantic billfish fishery, except to catch-and-release, 
supports the conservation ethic of this recreational user group; will 
maximize net economic benefits to the nation by managing the fisheries 
for long term OY; is consistent with the ICCAT recommendation; and 
meets the critical U.S. leadership goal to promote international 
conservation.
     Response: NMFS disagrees. Most recreationally caught billfish are 
already released, either voluntarily or in compliance with minimum size 
limits. However, some anglers prefer to land some billfish. Allowing 
those few fish to be landed is consistent with ICCAT conservation 
recommendations and recognizes the multi-faceted objectives of domestic 
and international management of the billfish fishery.
    Comment 2: NMFS should not prohibit the use of multiple hooks in 
the Atlantic billfish recreational fishery. Using the precautionary 
approach as a rationale to support this measure is contrary to the 
mission statement of NMFS as there is absolutely no science-based 
justification for this action. Limiting the number of hooks in a lure 
or bait is an unnecessary regulation because this will not enhance 
post-release survival rates; and will have no direct benefit to 
recovery of Atlantic billfish resources. This measure would 
significantly reduce angler hook-up rates, as well as have a negative 
economic impact on anglers by requiring purchases of new equipment and 
on tackle manufacturers.
     Response: NMFS has not included this proposed action in the final 
rule. This measure was developed as a result of discussions with the 
Billfish AP, which includes representatives from the charter boat 
industry, sport fishing groups, and Fishery Management Council 
appointees familiar with the recreational billfish industry. The 
objective of this alternative was to reduce the probability of injury 
to gills, throat and eyes, thereby decreasing release mortality rates. 
After NMFS and the Billfish AP reviewed public comments on this issue, 
the majority of panel members rescinded their support of this measure.
    Comment 3: NMFS received several different comments regarding the 
use of dehooking devices, including: NMFS should require the use of 
dehooking devices by both recreational and commercial fishermen 
targeting billfish to reduce post-release mortality; NMFS should not 
mandate but promote the use of dehooking devices by both recreational 
and commercial fishermen; and NMFS should only allow recreational 
anglers to utilize hook-removal devices, but still require commercial 
fishermen to cut their gear to release a billfish because a dehooking 
device can not practically be used to release a billfish caught on 
pelagic longline gear, and will result in an increase in bycatch 
mortality as fishermen use this ``loop-hole'' try to save hooks; and 
NMFS should allow the removal of the hook by any means, provided that 
it can be accomplished safely and without increased damage to the 
hooked fish.
     Response: The draft FMP amendment preferred alternative was to 
``allow the removal of the hook from recreational and commercially 
caught billfish.'' NMFS maintains this action in the final FMP 
amendment but does not mandate the use of dehooking devices. Their use 
as a mechanism to reduce post-release mortality is allowed but not 
required. There were no conclusive, peer-reviewed scientific results on 
which to base such a mandate at the time this FMP amendment was 
developed. However, commercially available dehooking devices have been 
effective in other commercial and recreational fisheries and have been 
successfully employed on removing hooks from other large fish. NMFS 
will include information on such dehooking devices in its pelagic 
longline workshops, as well as in its educational outreach programs. 
The final rule implementing the FMP amendment preserves the requirement 
that billfish that cannot be legally retained must remain in the water 
at all times, but no longer requires that the line be cut. Instead, the 
final rule specifies that the hook may be removed, provided that the 
method of hook removal used does not harm the fish, and may enhance its 
survival. Proper handling techniques to remove a hooked billfish from 
commercial or recreational gear will also be included in the pelagic 
longline workshops, in order to enhance the effectiveness of this final 
action and minimize the mortality of all releases.
    Comment 4: It is impossible to determine the size of an Atlantic 
billfish without removing the fish from the water.
     Response: NMFS disagrees. The 1988 Atlantic Billfish FMP noted 
similar comments, but cited advice from the SAFMC Billfish Advisory 
Panel which stated experienced billfish anglers and captains would have 
little difficulty in estimating the size of these fish quite 
accurately. The Plan's intent is ``to encourage the release of all 
billfishes not needed for tournament competition or of trophy fish, and 
since tournament anglers generally have no difficulty estimating fish 
size and trophy fish would be substantially in excess of the minimum 
sizes, this is not expected to be a major problem'' (SAFMC, 1988). The 
final rule implementing the FMP amendment preserves the requirement 
that billfish that cannot be legally retained must remain in the water 
at all

[[Page 29096]]

times. NMFS continues to support this regulation and will use its 
educational outreach programs for recreational fishermen to instruct 
them on the proper handling and release of billfish to maximize their 
survivability.
    Comment 5: The recreational landings caps for Atlantic blue and 
white marlin are unfair and unnecessary. If adopted, this proposal 
would be a significant U.S. policy change for billfish management in 
the United States from one that controls mortality through size limits 
and the encouragement of catch and release, to a quota management 
system. Imposing quotas in recreational fisheries does not work. They 
are highly disruptive to the orderly conduct of the fishery and weaken 
confidence in the entire management system.
     Response: These measures are necessary because blue marlin and 
white marlin are overfished. Furthermore, the United States is 
compelled to comply with ICCAT recommendations as required under ATCA, 
therefore the United States, and all other ICCAT member countries/
entities, must reduce landings (i.e., fish brought back to the dock vs. 
catch which is taken by fishing gear at sea) by at least 25 percent 
from 1996 levels. The true impact of this recommendation can only be 
evaluated in terms of Atlantic-wide reductions in marlin landings. The 
25-percent reduction in blue and white marlin landings will result in 
reductions of U.S. recreational landings of approximately 21,000 lb 
(9.52 mt reductions in marlin landings); however, on a larger scale, 
this recommendation will result in nearly a 3.4 million pound decrease 
(over 1,400 mt reductions in marlin landings) in Atlantic-wide marlin 
landings from 1996 levels by other ICCAT member countries. The final 
FMP amendment utilizes a size-based strategy to reduce U.S. 
recreational landings to required levels.
    Comment 6: NMFS received comments supporting and opposing the 
recreational retention limit of one Atlantic billfish per vessel per 
trip. Comments that support the recreational retention limit include: 
NMFS should implement the proposed recreational retention limit for 
billfish; the limit of one billfish is appropriate in that it will 
result in reduced landings of marlin without creating a hardship for 
the charter boat industry since few billfish are retained by anglers; 
and a limit of one billfish would be consistent with Florida state 
regulations. Comments against this measure include: NMFS should 
eliminate the recreational retention limit of one Atlantic billfish per 
vessel per trip; given the rare nature of billfish catches, and even 
rarer incidences of billfish landings, a limit of one billfish per 
vessel per trip would be ineffective in reducing landings by any 
significant amount; and this measure would have significant negative 
economic impacts on tournaments that have a ``grand slam'' category 
(i.e., prize for landing a blue marlin, white marlin and sailfish).
     Response: Retention of more than one billfish during a 
recreational trip is relatively rare, but the recreational retention 
limit was included in the draft FMP amendment as part of a 
precautionary management strategy, and to ensure compliance with 
landing caps established by the 1997 ICCAT recommendation. In the 
interest of responding to public comment on the impact of implementing 
recreational retention limits in the Atlantic billfish fishery, and in 
consideration of the ability of NMFS to manage landings (mortality) 
with size limits that can be adjusted through interim or proposed and 
final rule measures, the limit is rejected in the final Atlantic 
billfish FMP amendment. Reliance on size limits alone to control 
landings simplifies regulatory constraints and effectively accomplishes 
the same goal.
    Comment 7: NMFS should remove the provision providing the AA the 
authority to adjust the billfish recreational retention limit with 3-
day notice, including to a zero bag limit. Imposing an adjustable limit 
for billfish is excessive and unnecessary regulation of this 
recreational fishery. Contrary to the Magnuson-Stevens Act and 
Regulatory Flexibility Act requiring the selection of the least 
burdensome alternative, the proposed measure imposes the greatest 
economic uncertainty in the billfish fishery. Tournaments could be 
canceled, or at least experience significant reduction in 
participation, solely on the possibility of a prohibition of landing 
any fish. NMFS could manage this fishery through a minimum size limit 
in such a way that landings are reduced by at least 25 percent, without 
closing the fishery.
     Response: In consideration of the ability of NMFS to manage 
landings (mortality) with size limits that can be adjusted through 
interim or proposed and final rule measures, the provision providing 
the AA additional explicit authority to adjust the retention limit to 
zero is in the final Atlantic billfish FMP amendment. However, this 
approach may be reconsidered in the future if management by minimum 
size limits is insufficiently successful.
    Comment 8: NMFS should prohibit any billfish from being imported 
into the United States, regardless of where the billfish are caught 
(i.e., Pacific or Atlantic Ocean).
     Response: NMFS agrees that consideration of prohibiting any 
billfish imports may be warranted in the future.
    Comment 9: NMFS received comments for and against the proposed 
preferred minimum size limits, including: the Atlantic billfish size 
limits in the draft FMP amendment should be implemented; the Atlantic 
marlin size limits proposed by NMFS are excessive, in that they will 
reduce landings more than necessary to comply with the 1997 ICCAT 
recommendation; and the minimum size limits should be in round numbers 
that are easier to remember, for example 100 inches (254 cm) lower jaw 
fork length (LJFL) for blue marlin rather than 99 inches (251 cm) LJFL.
     Response: NMFS agrees with comments supporting the proposed 
preferred minimum size limits. The increase in minimum sizes for 
Atlantic blue marlin to 99 inches LJFL, 66 inches (168 cm)LJFL for 
Atlantic white marlin and 63 inches (160 cm) LJFL for sailfish is the 
final management action because it would reduce mortality rates by at 
least 25 percent for each of these overfished species at minimal short-
term economic expense with long-term economic benefits.
    Comment 10: NMFS received comments for and against the proposed 
preferred alternative to prohibit the retention of longbill spearfish. 
Comments against this measure include: lack of scientific information 
on this species is not an adequate reason to prohibit its retention; 
this measure would only hinder any research efforts; retention should 
be allowed until further data are made available that indicate this 
species is overfished; and as an alternative measure, NMFS should 
establish a toll free number for fishermen to report longbill spearfish 
landings and use this information for scientific purposes.
     Response: The absence of adequate scientific information is not a 
reason for failing to take appropriate conservation and management 
measures. The precautionary approach asserts ``states should apply the 
precautionary approach widely to conservation, management, and 
exploitation of living aquatic resources in order to protect them and 
preserve their aquatic environment (1995 Food and Agriculture 
Organization (FAO) International Code of Conduct).'' Longbill spearfish 
are rarely encountered by commercial fishermen or recreational anglers, 
and are generally not included as a target species in billfish 
tournaments. Therefore, this

[[Page 29097]]

measure should have only minimal negative social or economic impacts. 
The status of spearfish stocks is unknown, but the rare nature of this 
species necessitates a cautious management strategy to avoid any 
potential negative impacts to the stock.

Billfish Monitoring, Permitting and Reporting

    Comment 1: NMFS should expand the use of sampling protocols 
utilized in the Gulf of Mexico to other Atlantic coastal areas to 
improve monitoring of recreational billfish landings.
     Response: NMFS agrees. The 1997 ICCAT recommendation for 
improvement in monitoring and data collection, as well as the 
establishment of landing caps for Atlantic blue and white marlin, has 
focused attention on the need for improvement in sampling and 
monitoring programs to ensure that the United States is in compliance 
with international agreements. The Gulf of Mexico program was 
instrumental in providing a historical framework for developing the 
notification and reporting requirements for billfish tournaments, but 
expansion of this program to other areas may not provide the sampling 
levels necessary to ensure compliance with the ICCAT recommendation. 
Additional monitoring and reporting requirements have been added to the 
FMP amendment, including logbooks, permits and a voluntary observer 
program for charter-headboat vessels, and mandatory tournament 
registration.
    Comment 2: NMFS received several different comments on the proposed 
outreach programs, including: the proposed outreach programs for 
recreational billfish anglers are a waste of time and federal 
resources, recreational anglers already practice conservation in 
releasing over 90 percent of their catch; the proposed outreach 
programs will be a valuable addition to the FMP amendment depending on 
the level of cooperation with state and other federal agencies, fishing 
constituent groups, etc.; and, attendance at workshops and seminars 
held as part of this measure should be mandatory.
     Response: NMFS disagrees that the proposed outreach programs for 
billfish anglers are a waste of time. Although recreational anglers 
already release approximately 90 percent of their catch and NMFS has 
established a catch-and-release fishery management program in the final 
FMP amendment, release of live fish does not guarantee their survival. 
Outreach programs established in this amendment will provide proper 
handling, tagging, measuring and release techniques in order minimize 
the mortality of all live releases, a proactive approach to meeting 
several objectives of this FMP amendment. Attendance at workshops by 
charter boat operators and recreational anglers will not be mandatory, 
but will be encouraged and promoted through various constituent groups, 
trade publications and federal and state agencies (e.g., NMFS Office of 
Intergovernmental and Recreational Fisheries, Sea Grant). It is 
important to note, however, the success of any outreach program is 
predicated on reaching the entire billfish recreational angler 
community, which may eventually require implementation of a permit or 
other registration procedure.
    Comment 3: Requiring billfish and other HMS tournaments to notify 
NMFS four weeks prior to commencement of the tournament is punitive and 
unnecessary. Without corresponding time and area closures of longline 
fishing in spawning and nursery areas, mandatory tournament 
registration is unfairly biased against the recreational fishing 
industry.
     Response: NMFS disagrees. The 1997 ICCAT recommendation requires 
improvement in monitoring, data collection and reporting in all 
Atlantic billfish fisheries. The tournament notification requirement is 
critical to developing a sampling frame for tournaments to allow for 
better monitoring, data collection, and reporting of billfish and other 
HMS tournaments. Tournament registration also gives NMFS a sampling 
frame to obtain information on participation level, angler effort, as 
well as social, economic and fisheries characteristics data. 
Information from the tournament registration forms will provide a 
general guide to the total number tournaments, their locations, number 
of participants, etc. This action will greatly improve NMFS' collection 
of a data from a significant segment of the recreational HMS fishery at 
a relatively small social and economic cost. This requirement is 
comparable to the logbook data that are submitted by charter/headboats, 
and commercial fishermen in that it collects catch and effort 
information.
    Comment 4: The definition of an HMS tournament, including Atlantic 
billfish, as ``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,'' is too broad.
     Response: The definition of tournament is intentionally broad so 
that as much data as possible can be collected to better identify the 
universe of billfish anglers. While all tournaments will be required to 
register, tournament directors must report only if selected.
    Comment 5: The Atlantic billfish tournament reporting form needs to 
be revised to more closely match the type of information that can 
practically be collected during a tournament.
     Response: NMFS will hold joint workshops with fishing 
organizations and interested members of the public to discuss the best 
format for accurate reporting of necessary data.
    Comment 6: Tournaments selected to report should have 100- percent 
compliance and summary data should be made available to tournament 
directors, the HMS APs, and ICCAT Advisory Committee in a timely 
fashion, comparable to other fisheries managed under ICCAT quotas.
     Response: NMFS will work to ensure that data from tournament 
reports are promptly collected, compiled, and processed to provide 
summary data on a timely basis. This information is part of the annual 
National Report, as well as the annual SAFE report.
    Comment 7: NMFS should include penalties and/or sanctions for 
failing to register/and or report catch data.
     Response: NMFS agrees. The Magnuson-Stevens Act currently provides 
penalties and permit sanctions for regulations promulgated under the 
Act. The Magnuson-Stevens Act (section 308(a)) specifies that any 
person who is found by the Secretary, after notice and an opportunity 
for a hearing in accordance with section 554 of title 5, United States 
Code, to have committed an act prohibited by section 307 shall be 
liable to the United States for a civil penalty. Section 307(1)(a) of 
the Magnuson-Stevens Act states that it is unlawful for any person to 
violate any provision of this Act or any regulation or permit pursuant 
to this Act. Failure to register and/or report, if selected, is a 
violation of the regulations and may be forwarded to NOAA General 
Counsel for review.
    Comment 8: The draft Atlantic billfish FMP fails to recognize or 
utilize the cooperative tagging program.
     Response: NMFS disagrees. The Billfish FMP amendment includes 
information for Atlantic blue marlin, Atlantic white marlin, and 
sailfish, on the total number of tagged and released fish over the last 
43 years as part of the Cooperative Tagging Center (CTC) program. 
Information on the geographical area where most of the tagging activity 
occurred and during what times of year, the average distance tagged 
fish traveled before recapture, and specific movement patterns 
exhibited by some fish is also included

[[Page 29098]]

in this section. The CTC database was incorporated into maps with other 
effort sources to assist with determining essential fish habitat 
designations. The life history characteristics, gleaned in part from 
the CTC data, were often a factor in the consideration of management 
actions for the final FMP amendment. Recent support of a single 
billfish stock is also based in part on tag recoveries, which indicate 
both trans-Atlantic and trans-equatorial movement of billfish.
    Comment 9: NMFS should not require permits and logbooks for charter 
boats.
     Response: NMFS disagrees. The 1997 ICCAT recommendation required 
improvements in monitoring, data collection, and reporting from all 
fisheries that encounter Atlantic billfish. The draft FMP amendment 
proposed the use of mandatory permits and logbooks for charter/headboat 
operations. These management measures provide catch and effort data for 
Atlantic billfish that currently are not well quantified. Therefore, 
NMFS maintains that permits and logbooks for charter/headboats must be 
mandatory.
    Comment 10: The Atlantic blue and white marlin landing caps were 
generated from reported landings for 1996, when NMFS only minimally 
estimated landings based on samples of selected billfish tournaments 
and the Large Pelagic Survey. NMFS has proposed several improvements in 
monitoring in the FMP amendment that will increase the accuracy of 
landing estimates, which could unfairly reduce the number of billfish 
available to be landed, relative to 1996, in order to comply with the 
1997 ICCAT recommendation.
     Response: NMFS agrees that a statistically valid system must be 
developed to ensure an accurate comparison between 1996 and years after 
monitoring accuracy is increased. A review of all available information 
is currently being conducted to obtain the most accurate, 
scientifically-based landings for 1996. Other methods are also being 
developed to examine catch and landing rates to determine if these 
values can be used to reflect the reductions in landings between 1996 
and 1998, resulting from the two interim rules (March 24, 1998, 63 FR 
14030; and September 29, 1998, 63 FR 51859) implemented to increase 
size limits of blue and white marlin during 1998 to immediately comply 
with the 1997 ICCAT recommendation.
    Comment 11: NMFS should not change the fishing year. The proposed 
fishing year does not reflect the true operational time frame of the 
recreational billfish fishery and could disadvantage anglers and 
tournaments during the spring through potential regulatory changes 
implemented by NMFS to control landings to comply with ICCAT 
recommendation. Also, the proposed June 1 to May 31 fishing year is 
incompatible with ICCAT reporting by calendar year.
     Response: NMFS disagrees. The June 1 to May 31 fishing year was 
selected as a final action for the Atlantic billfish FMP to provide 
NMFS with sufficient time to meet legal requirements for implementing 
ICCAT recommendations (e.g., notice and comment). NMFS will report 
billfish and swordfish landings to ICCAT on both a calendar year and 
fishery year basis. A June to May fishing year is also consistent with 
most other HMS fisheries, thereby meeting Objective 5 of FMP amendment. 
If landing caps for Atlantic blue or white marlin are exceeded, as 
determined by the most recent tournament and other landings data, it is 
possible that NMFS would raise the minimum size to avoid exceeding the 
landing caps, which could lead to spring tournaments being negatively 
impacted. However, it is anticipated that the size limits implemented 
in the final rule will be sufficient to avoid this possibility.
    Comment 12: NMFS fails to propose any adequate mechanisms to ensure 
U.S. compliance with the 1997 ICCAT recommendation for Atlantic 
billfish, contrary to the mandates of ATCA. The proposed minimum size 
limits and/or recreational retention limits, and the provision 
providing the AA authority to adjust the retention limit to zero, will 
not accurately account for all recreational landings, as required under 
this ICCAT recommendation.
     Response: NMFS disagrees. The FMP amendment adopts several new 
monitoring, permitting, and reporting requirements to better quantify 
the number of fishermen and effort. These requirements will be 
evaluated as part of the annual SAFE and National Reports and if 
determined inadequate, framework provisions in the FMP amendment will 
be utilized. Framework provisions for possible future actions include 
vessel permits for all U.S. registered vessels fishing recreationally 
for Atlantic HMS and a landing tag for all recreationally landed 
billfish. In the event that the ICCAT-recommended landing caps are 
close to being reached, NMFS has the authority, under section 305 (d) 
of the Magnuson-Stevens Act to take appropriate action.
    Comment 13: The expansion of the management unit for Atlantic blue 
and white marlin to the entire Atlantic Ocean, and implementation of 
regulatory actions for all Atlantic billfish under both Magnuson-
Stevens Act and ATCA could result in the double reporting of 
recreational landings from U.S. citizens fishing in foreign waters.
     Response: NMFS disagrees. The final FMP amendment includes a final 
action to expand the management unit for Atlantic blue and white marlin 
to the entire Atlantic Ocean, and implement regulatory actions for 
Atlantic blue marlin and Atlantic white marlin under both Magnuson-
Stevens and ATCA. NMFS will work with the Department of State, and 
other agencies to ensure that fish are counted accurately and to ensure 
that accurate catch data are submitted to ICCAT.

Billfish International Rebuilding Strategy

     Comment 1: NMFS should negotiate with ICCAT to prohibit the 
landing of billfish throughout the Atlantic Ocean.
     Response: For some ICCAT member countries/entities, billfish are 
used for subsistence and/or as a source of income, while others may 
have a ``no discard'' policy. However, this does not preclude these 
ICCAT member countries/entities from agreeing to additional management 
measures. The United States must continue to work with other members to 
reach a practical solution to rebuild Atlantic billfish resources. 
Indeed, the United States sponsored the 1998 ICCAT resolution calling 
for additional conservation measures following blue and white marlin 
stock assessments in 2000 and sailfish stock assessment in 2001. 
Recovery of overfished Atlantic billfish stocks will require a multi-
national approach.
    Comment 2: It is mathematically impossible for NMFS to reduce U.S. 
billfish mortalities by 25 percent simply by placing restrictions on 
the recreational fishery. NMFS should apply the ICCAT-recommended 25 
percent reduction to all U.S. sources of mortality, not just billfish 
landed by recreational anglers.
     Response: The 1997 ICCAT recommendation requires member countries/
entities to ``Reduce, starting in 1998, blue marlin and white marlin 
landings by at least 25 percent for each species from 1996 landings, 
such reduction to be accomplished by the end of 1999.'' Although the 
majority of U.S. billfish mortalities reported to ICCAT are a result of 
dead discards from the pelagic longline fishery, the ICCAT 
recommendation only applies to U.S. recreational anglers because they 
are the only U.S. sector allowed to land billfish. The United States is 
obligated by ATCA to comply with this recommendation.

[[Page 29099]]

An Atlantic billfish bycatch reduction strategy is established using 
the management tools included in the HMS FMP. Billfish mortality 
attributed to bycatch in the pelagic longline fleet is managed through 
the HMS FMP.
    Comment 3: The United States has existing regulations that limit 
billfish landings (size limits for recreational anglers, and 
prohibitions on commercial possession of Atlantic billfish), therefore 
the 1997 ICCAT recommendation does not apply to this country.
     Response: NMFS disagrees. The 1997 ICCAT recommendation requires a 
reduction of Atlantic blue marlin and Atlantic white marlin landings by 
at least 25 percent from 1996 levels, and there is no provision 
exempting countries with existing billfish regulations that limit 
allowable landings. Each member is to advise ICCAT on an annual basis 
of measures in place or to be taken that reduce landings of marlins or 
fishing effort. The United States is complying with this recommendation 
by increasing the minimum size limit of Atlantic blue marlin and white 
marlin, and continuing the commercial prohibition.

Economic Impacts Resulting from Billfish Measures

    Comment 1: The draft FMP amendment overlooks the negative economic 
impacts of the preferred alternatives on recreational communities. 
Preferred alternatives will have negative economic impacts on not just 
direct participants in the Atlantic billfish fishery but travel-related 
industries; fishing-related businesses; and local charities that 
receive large donations from tournaments proceedings.
     Response: The draft FMP amendment and the supplementary RIR/IRFA 
identified, based on the best-available information, the potential 
social and economic impacts of the various management measures, 
including expenditures by recreational anglers. The IRFA thoroughly 
discussed the recreational retention limit, along with the zero 
retention limit provision, and NMFS has dropped this measure from the 
final FMP amendment. NMFS has also established a voluntary observer 
program for charter/headboat vessels, in part to reduce the negative 
economic impacts that would be associated with a mandatory observer 
program for charter boats, and has dropped the prohibition of multiple 
hooks.
    Comment 2: The preferred management measures selected by NMFS 
ignore the greater economic value of recreational fisheries relative to 
that of the pelagic longline commercial fishery.
     Response: NMFS disagrees. The draft FMP amendment and the 
supplementary RIR/IRFA refer to a 1989 study by Fisher and Ditton of 
Texas A&M University that provided an estimated economic impact (i.e., 
money spent) of the recreational component of the billfish fishery to 
be in excess of $180 million. The draft FMP amendment and the 
supplementary RIR/IRFA also included an estimate of the total gross 
revenues foregone from dead discards of all billfish over the eight- 
year period between 1988 and 1996, $5.3 million, or $664,648 per year. 
The draft FMP amendment specifically stated: ``While these values are 
far from insignificant, they are considerably less than the $180 
million spent each year by tournament anglers alone, and net economic 
benefits of $2 million per year.''
    Comment 3: NMFS should evaluate which industry (recreational or 
commercial) provides the most economic value to the United States and 
select management measures accordingly. The recreational billfish 
community annually generates millions of dollars for the U.S. economy 
(economic impact) in the pursuit of what essentially constitutes a 
catch-and-release fishery. Conversely, commercially caught billfish 
have no value because they must all be discarded. The total ex-vessel 
value of targeted commercial species (i.e., tuna and swordfish) 
contributes less to the national economy than recreational highly 
migratory species anglers. Therefore, NMFS should ban use of pelagic 
longline gear in the U.S. EEZ.
    Response: NMFS disagrees. The final RIR and the IRFA discuss common 
misconceptions of comparing recreational versus ex-vessel economic 
effects. Additionally, in determining final management actions, the 
economic value of a fishery is an important consideration, however it 
is not the sole criterion. NMFS must consider additional factors and 
consider resultant potential impacts on each fishing sector. While NMFS 
recognizes the significant economic value of billfish recreational 
fishery, it does not support banning the use of longline gear.
    Comment 4: NMFS should reduce billfish bycatch mortality by 
developing a buyout program to reduce or eliminate pelagic longline 
vessel effort in the Atlantic Ocean.
     Response: Consideration of a fishing capacity reduction plan, as 
well constraints on buyback programs and funding mechanisms were 
described in the draft FMP amendment. A buyout program can only be 
effective in the reduction of billfish bycatch if the overall effort 
(i.e., number of hooks in the water) is reduced. The final FMP 
amendment action to establish an Atlantic billfish bycatch reduction 
strategy includes buyout programs as one of six elemental components in 
the HMS FMP that may be used to effectively reduce effort and longline 
bycatch mortalities. NMFS may consider establishing a buyout program in 
the HMS FMP after the rebuilding program in that plan is established, 
along with limited access.
    Comment 5: Atlantic billfish tournaments that require landing 
billfish constitutes ``trade, barter, or sale.'' NMFS should prohibit 
cash/merchandise prizes in association with these tournaments to reduce 
the incentive to land Atlantic billfish.
     Response: NMFS disagrees. Regulations state that the sale or 
purchase of billfish from its management unit is prohibited (50 CFR 
635.31). A survey of tournament rules has shown that a billfish is not 
required to be given to the tournament to qualify for a prize, rather 
the fish is only subject to a measurement of its weight. The fish is 
ultimately retained as the property of the individual submitting the 
fish for entry in the tournament, therefore no purchase or sale of the 
billfish has occurred and the regulations have not been violated. Any 
tournament that violates the prohibition on sale would be subject to 
civil action. However, the final FMP amendment does not prohibit cash/
merchandise prizes in association with billfish tournaments as long as 
they are not given in exchange for any billfish.

Atlantic Tunas

    Comment 1: NMFS should prohibit longline and net gear (including 
driftnets and purse seines) in the bluefin, yellowfin, and bigeye tuna 
fisheries.
     Response: Driftnet gear is already prohibited in the bluefin tuna 
fishery and through this final action is prohibited in the fisheries 
for other Atlantic tunas (bigeye, albacore, yellowfin, skipjack (BAYS 
tunas). Pair trawls are prohibited in all Atlantic tuna fisheries. 
Longline gear is restricted in the bluefin tuna fisheries with strict 
target catch requirements for incidental catch retention. Through this 
final action, fishermen who wish to enter the BAYS longline fishery are 
required to obtain limited access permits for both Atlantic swordfish 
and sharks. As such, access to the BAYS longline fishery is limited. 
Since pelagic longline gear is used to target swordfish and other fish

[[Page 29100]]

species, prohibiting the gear in the Atlantic tuna fisheries would 
result in increased tuna discards. NMFS maintains that there is no 
reason at this time to prohibit the use of purse seine gear in the 
Atlantic tuna fisheries. Bycatch concerns are minimal and access to the 
fishery is limited.
     Comment 2: NMFS received numerous comments regarding bluefin tuna 
landings quota allocation, supporting and opposing limiting the Purse 
Seine quota to 250 mt. NMFS also received requests to reallocate some 
Purse Seine quota to other categories (commercial and recreational) to 
reflect historical participation and/or the increase in fishery 
participants (e.g., the Angling category). Comments in support of Purse 
Seine quota reduction include: the Purse Seine allocation is 
inconsistent with NS 4 in that the allocation is not fair and 
equitable, a few individuals receive an excessive share of the landings 
quota, and since Individual Vessel Quotas are transferrable, it is 
conceivable that a single owner could acquire rights to the entire 
Purse Seine Quota; NMFS should not incorporate the IVQ system by 
reference; and NMFS should implement a buyback program for the Purse 
Seine fishery. Comments in opposition to limiting the Purse Seine 
category to 250 mt include: the proposed cap was neither presented in 
the draft HMS FMP nor to the HMS AP for discussion, would be an 
arbitrary and capricious action, and would be contrary to the Magnuson-
Stevens Act provision that NMFS ``allocate both overfishing 
restrictions and recovery benefits fairly and equitably among sectors 
of the fishery;'' the argument that the fishery does not contribute 
catch per unit effort (CPUE) data is invalid; NMFS should not take this 
action without conducting a comparative analysis of allocations leading 
to ``excessive quota shares;'' and the AP, in discussing the issue of 
Purse Seine quota (as referenced in the proposed rule) was referring to 
relative quota shares rather than an absolute quota tonnage.
     Response: As described in the FMP, NMFS bases the quota 
allocations on consideration of several factors, including the 
collection of the best available scientific data and the optimization 
of social and economic benefits. When NMFS established the current 
limited entry system with non-transferable individual vessel quotas 
(IVQs) for purse seining in 1982, NMFS considered the relevant factors 
outlined in section 303(b)(6) of the Magnuson-Stevens Act. In 1992, 
NMFS established ``base'' quotas for all categories, which were based 
on the historical share of landings in each of these categories during 
the period 1983 through 1991. In 1995, NMFS reduced the Purse Seine 
category base quota by 51 mt, in large part because the Purse Seine 
category does not provide a catch per unit effort time series used to 
estimate trends in stock size. This reduced quota was the base for the 
allocation to purse seines in 1996 through 1998. NMFS believes that 
limiting the future Purse Seine category to this same quota level is 
fair and equitable, given that the limited entry (IVQ) system has 
limited participants who are insulated from increased competition and 
participation, in contrast to the other categories that are open-access 
fisheries with increasing participation and intense competition for the 
quota. Similarly, based on consideration of the historical 
participation of those in the Purse Seine fishery, NMFS does not 
believe that the allocation to the Purse Seine category, including any 
possible transfers of quota within the category, constitutes an 
excessive share of the bluefin tuna quota.
    However, NMFS notes that the AP did not have an opportunity to 
address the Purse Seine quota in the context of the quota increase. 
Therefore, NMFS will hold the 8 mt in the Reserve until after the AP 
has discussed the issue. If NMFS concludes that a different result is 
appropriate, the Purse Seine category quota would be modified through 
the framework provisions in the FMP.
    NMFS has no plans to consider a vessel buyback in the Purse Seine 
fishery at this time.
     Comment 3: NMFS received numerous comments in support of a 
prohibition on the use of spotter aircraft by vessels (other than Purse 
Seine category vessels) participating in the bluefin tuna fishery, 
specifying that the prohibition would, among other reasons: lengthen 
the season via reduced catch rates, ``level the playing field'' for 
those fishermen who do not use planes, decrease bycatch and discard of 
undersized bluefin tuna, affirm the basis for the allowance of multiple 
landings for the Harpoon category (i.e., dependence on good weather), 
return the Harpoon category to its traditional fishing methods, and 
reduce the potential for accidents. NMFS received comment that the 
final rule should be issued before May 15, 1999, so that vessel owners 
can choose their appropriate permit category. NMFS also received 
several comments from opponents of a prohibition, including: NMFS 
should address the spotter plane issue independently of the FMP and 
should base its decision on the best available science; NMFS has failed 
to identify the important fishery-independent data (e.g., on bluefin 
tuna distribution, behavior, and environmental biology) collected by 
spotter pilots and has implied in the FMP that CPUE-based indices are 
the only scientific data of any importance to bluefin tuna management; 
and arguments to prohibit the use of planes in the bluefin tuna fishery 
are baseless. Other comments NMFS received regarding the spotter plane 
issue include: NMFS should make a decision regarding an increase to the 
Harpoon quota independent of the decision on spotter planes; NMFS 
should implement a subquota for Harpoon vessels that are assisted by 
spotter planes; NMFS should implement a daily catch limit of one 
bluefin tuna per day for Harpoon vessels; and NMFS should hire spotter 
pilots to conduct scientifically valid, fishery-independent aerial 
surveys. NMFS also received comment that, since many General category 
permit holders may obtain a Harpoon category permit if NMFS implements 
a spotter plane prohibition (for vessels other than in the Purse Seine 
category), NMFS should increase the Harpoon category quota.
    Response: NMFS did not implement a final action regarding this 
issue in the HMS FMP. A separate rulemaking will be undertaken after 
further deliberation and analyses. NMFS agrees that analysis of the 
effects of spotter aircraft on vessels participating in the bluefin 
tuna fishery must be based on the best available science. NMFS intends 
to complete a final rule on this issue prior to the commencement of the 
General and Harpoon category fishing seasons, June 1, 1999, and 
understands that it is preferable to announce the decision prior to the 
deadline for permit category changes.
     Comment 4: NMFS should not require that Atlantic tunas other than 
bluefin tuna be landed with the tail attached; this regulation is 
unnecessary and restrictive. The current dressing procedures, which 
leave pectoral fin and the dorsal fins attached, provide the necessary 
physical features for accurate species identification. Keeping tail 
fins intact creates processing and storage problems for tunas that will 
reduce quantity and price.
     Response: NMFS recognizes the impact of the current required 
landing form on commercial fishermen, especially longline fishermen. 
NMFS requires the landing of Atlantic tunas with the tail and one 
pectoral fin attached to facilitate enforcement of minimum size. 
However, NMFS is currently analyzing yellowfin and bigeye tuna 
measurement data to

[[Page 29101]]

develop a formula to convert measurements (e.g., pectoral fin to fork 
measurement or pectoral fin to keel measurement) for yellowfin and 
bigeye tuna landed with the head removed. NMFS may consider allowing 
yellowfin and bigeye tuna to be landed with head and tail removed when 
an appropriate conversion formula is developed.
     Comment 5: NMFS received numerous comments regarding restricted-
fishing days (RFDs), some of which support the status quo, some of 
which oppose RFDs altogether, and some suggesting alternate schedules, 
including: in order to extend the General category season, NMFS should 
implement more RFDs than proposed, e.g., 3 days or more per week 
(Sundays, Wednesdays, and Fridays or Sundays, Mondays, and Wednesdays) 
in addition to the days that correspond to Japanese market closures, 
and NMFS should begin the schedule of RFDs for 1999 in early July.
     Response: NMFS has considered these comments and agrees additional 
General category RFDs may increase the likelihood that fishing would 
continue throughout the summer and fall, and would further distribute 
fishing opportunities without increasing bluefin tuna mortality. NMFS 
will announce annually the General category effort control schedule 
(time period subquotas and RFDs) through a final specifications notice. 
NMFS intends to announce the 1999 RFD schedule and address comments 
regarding effort controls in the final specifications, to be published 
concurrent with this final rule. See Appendix 3 of the final HMS FMP 
for the 1999 effort control schedule and a discussion of the effort 
control alternatives.
     Comment 6: NMFS received some comments in support of the status 
quo General category time-period subquotas (three periods), and some 
suggesting alternate schedules, including: NMFS should implement two 
General category time-period subquotas (e.g., for June-August and 
September-December) since prices are higher in August than September 
and to avoid derby conditions in October.
     Response: NMFS addresses comments regarding effort controls in the 
1999 final specifications notice, published concurrent with this final 
rule. See Appendix 3 in the final HMS FMP for the 1999 effort control 
schedule and a discussion of the effort control alternatives.
     Comment 7: NMFS received several comments requesting more 
certainty regarding the Angling category season, retention limits, and 
quota allocation, including: NMFS should implement a separate daily 
retention limit for U.S. Coast Guard inspected vessels; NMFS should 
separate recreational landings quotas for Charter and private vessels; 
NMFS should implement more and/or different regional subquotas; NMFS 
should implement date-certain seasons; NMFS should balance the entire 
Angling category quota over three years; and NMFS should shift the 
north/south dividing line for the Angling category. Further comment 
included: NMFS should establish a set season with daily retention 
limits and minimum sizes by area and make adjustments for overharvests 
and underharvests annually vs. inseason. With this approach, the 
recreational industry and anglers can make plans for the fishing season 
that will not get disrupted by uncertain changes (i.e., closures and 
adjustments to the daily retention limit). An improved data collection 
program would be an important part of this and could be pursued with 
industry support to provide accurate catch and effort data for quota/
stock monitoring purposes and to determine the sub-area quotas/seasons 
for the following year. The annual assessment of the catch and 
adjustment of the sub-area quotas should make it easier to analyze and 
implement a better location for the north/south line and the 
possibility of a third area in the vicinity of Montauk, New York and 
north.
     Response: In the HMS FMP, NMFS describes the challenges in 
managing and monitoring the recreational fishery for bluefin tuna, with 
its highly variable catch rates and locations, and the ICCAT 
restrictions on the catch of school size bluefin tuna. In order to 
monitor recreational landings of bluefin tuna, NMFS requires 
cooperation from the recreational community in using the Automated 
Catch Reporting System and participation in the Large Pelagic Survey. 
NMFS has the authority and flexibility to open and close the Angling 
category in sub-areas in order to ensure equitable fishing 
opportunities. The recent ICCAT recommendation which allows 4 years for 
countries to balance their landings of school size bluefin tuna also 
should allow the United States more flexibility in managing this 
fishery, and NMFS is committed to working with the Advisory Panel, the 
States, and recreational fishermen in order to better manage the 
Angling category fishery.
    Comment 8: NMFS should postpone action on the bycatch measures 
until it has at least a full year's data from all fishing sectors, in 
order to proceed in a fair, equitable, and effective manner.
    Response: NMFS has based the bycatch measures on the best available 
information. Further, NS 9 requires NMFS to minimize bycatch to the 
extent practicable.
     Comment 9: NMFS should permit spearguns as an allowable gear type 
in the Atlantic tunas Angling category fishery.
     Response: The fishery for Atlantic tunas is subject to intense 
competition among the various user groups; the addition of spearguns as 
an allowable gear type could cause additional conflict among the user 
groups, and may pose other problems including safety and discard 
concerns. Therefore, NMFS is not adding spearguns as an allowable gear 
type at this time.
     Comment 10: NMFS received numerous comments for and against the 
proposed recreational daily retention limit of 3 yellowfin tuna per 
angler. Those in support of the retention limit include: NMFS has 
ignored the expansion of the recreational yellowfin tuna (and bigeye 
tuna) effort despite the U.S. commitment to ICCAT to limit effective 
yellowfin effort to the reported 1992 level, so NMFS should implement 
recreational restrictions now; a daily retention limit of 3 yellowfin 
tuna per angler is excessive; NMFS should implement a yellowfin tuna 
daily retention limit since yellowfin tuna seem to be of less weight 
than in previous years. Comments in opposition to the retention limit 
include: As yellowfin tuna are not currently considered overfished, 
there is no basis for a yellowfin tuna daily retention limit; a limit 
now may lead to a further reduction of the retention limit in 
subsequent years, as has happened in the bluefin tuna fishery; NMFS has 
proposed no commercial limits, so the recreational limit is 
inequitable; setting a recreational daily retention limit may 
disadvantage the United States in ICCAT negotiations (if a yellowfin 
tuna quota is recommended in the future) if it results in decreased 
U.S. landings; a retention limit would have a negligible impact on 
fishing mortality since on most trips, each angler lands 3 or fewer 
yellowfin tuna, and in many areas, captains voluntarily limit each 
angler to 3 or fewer yellowfin tuna; there is no domestic benefit for 
the regulation since U.S. landings comprise only approximately 4 
percent of the Atlantic landings; and until NMFS has scientific data 
that show that the implementation of daily retention limits is 
warranted, NMFS should not take any action that affects only the 
recreational sector.
     Response: NMFS acknowledges the importance of yellowfin tuna to 
the recreational fishing industry. NMFS chooses to take the 
precautionary approach since the latest SCRS report

[[Page 29102]]

indicates that the current fishing mortality rate on yellowfin tuna is 
probably higher than that which would support maximum sustainable yield 
on a continuing basis. Further, effort restrictions are consistent with 
the ICCAT recommendation to limit effective fishing effort for 
yellowfin tuna to 1992 levels. NMFS has already implemented, or is 
implementing through the HMS FMP, several restrictions in the 
commercial yellowfin tuna fisheries, including limited access in the 
purse seine and longline BAYS fisheries, and the prohibition on pair 
trawl gear and driftnets in the Atlantic tunas fishery. NMFS maintains 
that limiting access to the recreational yellowfin tuna fishery is not 
desirable at this time and that the retention limit is an alternative 
management measure that is consistent with the ICCAT recommendation. 
This retention limit for yellowfin tuna is designed to prevent 
excessive landings in the recreational fishery and maximize long-term 
fishing opportunities.
     Comment 11: NMFS should allow dealers more than 5 days after the 
completion of each bi-weekly reporting period to submit bluefin tuna 
bi-weekly reports. Price information is not available for bluefin tuna 
shipped to Japan until 4 days after landing, and allowing dealers only 
one day to submit the information is unreasonable.
     Response: NMFS agrees, and understands that the proposed reporting 
requirement may be difficult for dealers to comply with considering the 
market for bluefin tuna. Therefore, NMFS is not modifying the current 
10-day reporting period for bluefin tuna bi-weekly reports.
    Comment 12: NMFS should not hold 20 mt of the Angling category 
school bluefin tuna subquota in reserve, given that NMFS may now 
balance overharvests and underharvests over a four-year period.
    Response: Because of high, and highly variable catch rates, the 
Angling category can easily harvest and exceed its school bluefin tuna 
subquota. NMFS maintains that holding some school bluefin tuna landings 
quota in reserve is prudent in that it will help to ensure U.S. 
compliance with the ICCAT-recommended limit on the retention of school 
bluefin tuna. NMFS may allocate tonnage from the school bluefin tuna 
reserve during the season, as appropriate.
    Comment 13: The provision to add or deduct bluefin tuna 
underharvest or overharvest, as applicable, should be discretionary 
only for school bluefin tuna, which can be balanced over a four-year 
period. For all other size classes, the provision should be mandatory.
    Response: NMFS agrees and has clarified the regulations to be 
consistent with the ICCAT recommendation. In the case of bluefin tuna 
overharvest or underharvest, NMFS must subtract the overharvest from, 
or add the underharvest to, the appropriate quota category, or 
subcategory, with the exception of the Angling category school bluefin 
tuna subcategory, for the following fishing year, provided that the 
total of the adjusted landings quotas and the Reserve is consistent 
with the ICCAT Rebuilding Program. In the following year, NMFS also may 
allocate any remaining landings quota from the Reserve to cover this 
overharvest, consistent with the established criteria.
    For the Angling category school bluefin tuna subcategory, because 
of the ICCAT-recommended 4-year balancing period, NMFS may subtract the 
overharvest from, or add the underharvest to, the school bluefin tuna 
subquota for the following fishing year. NMFS must, prior to the end of 
the 4-year balancing period, make adjustments to account for 
overharvest of school bluefin, if necessary to comply with the ICCAT 
Rebuilding Program.
    Quota monitoring in the bluefin tuna fishery is difficult and 
overharvests are likely, thus accounting for overharvests will not be 
``punitive,'' in that one category or subcategory's landings quota 
overharvest will not be redistributed to other categories. While some 
comments submitted to NMFS have suggested that categories should be 
``rewarded'' or ``punished'' for their under/overharvests as described 
above, NMFS maintains it is not the intent of ICCAT or a domestic 
management objective to redistribute quota from one category to another 
due to overharvest. The ICCAT provision regarding overharvest and 
underharvest is designed to address consistent mortality, not just 
compliance.
     Comment 14: The Angling category fishery should be catch and 
release only.
    Response: NMFS considered the elimination of the small fish 
landings quota for bluefin tuna, but rejected this alternative because 
the elimination of the school, large school, and small medium bluefin 
tuna fishery would have adverse social and economic impacts on the 
recreational and charter/headboat sectors, and would reduce NMFS' 
ability to collect the best available data on the catches of the 
broadest range of age classes possible for stock assessment purposes.
     Comment 15: Commercial yellowfin tuna landings should be reduced 
by at least 50 percent.
    Response: As indicated in a previous response, NMFS has taken 
numerous measures to restrict the commercial yellowfin tuna fisheries. 
Therefore, NMFS maintains that no further action regarding the 
commercial yellowfin tuna fisheries is necessary at this time. NMFS is 
concerned about the level of fishing mortality on this stock, and will 
continue to monitor the status of the yellowfin tuna fisheries.
    Comment 16: NMFS should continue to allow the traditional harvest 
of skipjack, bonito, and bait fish with driftnet gear. This gear has 
been used off the coast of New Jersey for 11 years. This is a clean 
fishery with no bycatch of marine mammals or endangered species. The 
draft HMS FMP shows that skipjack and bonito stocks are underutilized 
and U.S. catches are at low levels. The fisheries for skipjack and 
bonito are mixed; a directed fishery for bonito cannot be pursued 
without skipjack as bycatch.
     Response: Because the Magnuson-Stevens Act does not include bonito 
in its definition of HMS, NMFS is not implementing bonito conservation 
and management measures in this FMP. NMFS recognizes that the 
prohibition on driftnets for Atlantic tunas would preclude a small 
coastal driftnet fishery from retaining its catch of skipjack. NMFS may 
issue EFPs to the limited number of coastal driftnet fishermen affected 
by the gear prohibition in order to collect more information on this 
fishery and help determine NMFS' future course of action. Individuals 
who wish to use driftnet gear when targeting species other than 
Atlantic tunas may apply to NMFS for an EFP to land incidentally caught 
Atlantic tunas (other than bluefin).
    Comment 17: NMFS should allow individuals renting vessels to obtain 
an Atlantic tunas permit (e.g., for tourists in the U.S. Virgin Islands 
and Puerto Rico).
    Response: Any vessel with state registration or U.S. Coast Guard 
documentation may obtain an Atlantic tunas permit. Individuals 
chartering or renting a vessel for which NMFS has issued an Atlantic 
tunas permit are therefore eligible to fish for Atlantic tunas.
    Comment 18: The existing and proposed bluefin tuna regulations 
violate the Magnuson-Stevens Act, specifically NS 1. The HMS FMP should 
include a valid designation of MSY, OY, and EFH, using the 
precautionary approach, as well as objective and measurable criteria 
for defining overfishing and the measures for ending overfishing and 
rebuilding the fishery. The ICCAT rebuilding program also

[[Page 29103]]

violates NS 2, which requires the use of the best scientific 
information available, and it was adopted without public input. NMFS 
must explain why it is using untested models to set MSY. Additional 
measures that should be included in the HMS FMP include increased 
observer coverage, minimization of bycatch in spawning areas such as 
the Gulf of Mexico, and minimization of bycatch by regulating longline 
fishing gear.
    The HMS FMP and proposed regulations also violate the United 
Nations Agreement on Straddling Stocks, which requires the application 
of the precautionary approach in the management of fish such as bluefin 
tuna.
    Response: The ICCAT rebuilding program meets the standards of the 
Magnuson-Stevens Act in that it includes an appropriate time period, 
targets, limits, and explicit interim milestones for recovery; NMFS 
indicated in the draft FMP that adoption of the ICCAT rebuilding 
program would be the preferred alternative if these standards were met. 
The ICCAT rebuilding program is based on the SCRS stock assessment, 
which is the best scientific information available. It is consistent 
with both the Magnuson-Stevens Act and the Atlantic Tunas Convention 
Act in that it implements a quota equal to the ICCAT-recommended 
allocation for the United States, and maintains traditional fishing 
patterns of U.S. vessels. The bluefin tuna rebuilding program is 
precautionary in that it provides the flexibility to modify the Total 
Allowable Catch, the MSY target, and/or the rebuilding period based on 
subsequent scientific advice.
    Finally, note that NMFS is implementing a time/area closure and a 
limitation on length of the mainline to reduce pelagic longline dead 
discards.
     Comment 19: In the draft FMP, NMFS has used definitions and 
methodologies that ascribe higher values to the recreational fishery or 
the ``existence value'' of HMS than to the ``net economic benefits'' of 
the commercial fishery. NMFS appears to interpret NS 8 as less equal 
than NS 1.
    Response: NMFS disagrees; NMFS is not ascribing higher values to 
the recreational fishery, or the ``existence value'' of HMS. To prepare 
this FMP in accordance with the Magnuson-Stevens Act, NMFS has 
addressed the National Standards for both the commercial and 
recreational sectors using the best available information. In addition, 
the NSGs state that the consideration of community impacts must not 
compromise the achievement of conservation requirements.
    Comment 20: Regarding public hearings, NMFS should ensure that 
individuals be provided an environment in which they can express their 
comments for the record. At a few of the HMS FMP public hearings, some 
individuals felt physically or otherwise threatened by other attendees 
while or after making their comments and have expressed that they will 
not give comments at public hearings until NMFS addresses this issue.
    Response: NMFS is very concerned about comments that concern for 
personal safety is hindering the public process. NMFS agrees that all 
attendees at public hearings should be able to articulate their 
comments in a safe environment. Public comment is an essential part of 
rulemaking, and public hearings can be an important element in the 
public comment process. NMFS acquires good information from the 
comments presented at public hearings and expects members of the public 
to conduct themselves appropriately for the duration of the meeting. At 
the beginning of each public hearing, a NMFS hearing officer explains 
the meeting ground rules (e.g., attendees will be called to give their 
comments in the order in which they registered to speak, each attendee 
will have an equal amount of time to speak, and attendees should not 
interrupt one another). The hearing officer attempts to structure the 
meeting so that all attending members of the public are able to 
comment, if they so choose, regardless of the controversiality of the 
subject(s). Attendees are expected to respect the ground rules, and if 
they do not, they will be asked to leave the hearing. In the future, 
when announcing HMS public hearings or scoping meetings, NMFS will 
include in the notice a reminder of the ground rules for these 
meetings.
    Comment 21: In the FMP, the objectives for bluefin tuna management, 
especially those regarding the preservation of traditional fisheries 
and historical fishing patterns, should be listed separately, as should 
the objectives for the other HMS fisheries, and the seven objectives 
(three listed in the 1995 bluefin tuna Final EIS and four in a 1992 
bluefin tuna final rule) should be included. This will be especially 
important for future ICCAT negotiations as other nations may seek a 
portion of the west Atlantic Total Allowable Catch.
    Response: In preparing one FMP for the management of Atlantic 
tunas, swordfish, and sharks, NMFS has chosen to list the management 
objectives together. However, NMFS has added language to the objectives 
to include preserving traditional fisheries as well as historical 
fishing patterns and participation.
    Comment 22: NMFS should allocate the fair share of the 1998 ICCAT-
recommended U.S. landings quota increase to the Incidental category, 
the Harpoon category, and the Purse Seine category, and should ensure 
that any future landings quota increases be distributed fairly and 
according to each user group's historical share of the fishery. NMFS 
does not need to maintain such a large reserve, given the improvements 
in commercial quota monitoring, the new 4-year balancing period for 
school bluefin tuna, and the proposed school bluefin tuna reserve. NMFS 
should allocate 17 mt from the Reserve to the Harpoon category quota, 
to reflect the Harpoon category's traditional participation in the 
fishery.
    Response: The FMP implements percentage share allocations for 
bluefin tuna, and all categories other than the Purse Seine category 
will share in the impacts of both quota increases and reductions (see 
response to comment 2). Bluefin tuna allocation issues were discussed 
extensively at several HMS AP meetings in 1998, and there was general 
support for maintaining the 1997/1998 quota allocations (which are 
based upon the historical share of landings in each of these categories 
during the period 1983 through 1991, modified in 1995 and 1997). While 
NMFS agrees that improved commercial bluefin tuna monitoring, along 
with the 1998 ICCAT recommendation and the measures adopted in this 
FMP, allow for more flexible management of the fishery, NMFS maintains 
that the Reserve is necessary to ensure that the United States does not 
exceed its ICCAT-recommended landings quota, and to utilize it for 
inseason or post-season transfers as necessary and appropriate.
    Comment 23: In order to avoid potential bycatch mortality, NMFS 
should not implement a daily retention limit for the Incidental other 
subcategory (e.g., for traps), but rather should allow landings until 
the quota is filled.
    Response: The FMP eliminates the Incidental permit category for 
Atlantic tunas, and creates two new categories: ``Longline'' to reflect 
the existing authorization of directed longline fisheries for tunas 
other than bluefin tuna, and ``Trap'' to account for unavoidable catch 
of bluefin tuna by pound nets, traps, and weirs. To address enforcement 
issues concerning unauthorized landings of bluefin tuna under the 
Incidental category quota, fixed gear other than ``traps'' and purse 
seines for non-tuna fisheries will no

[[Page 29104]]

longer be allowed to land bluefin tuna. Because of the limited ``Trap'' 
quota, and the infrequent catch of bluefin tuna by pound nets, traps, 
and weirs, NMFS maintains that the proposed one fish per year retention 
limit for the Trap category is sufficient, and will not result in 
additional bycatch.
     Comment 24: The comment period for the Bluefin Tuna Addendum was 
not long enough.
    Response: NMFS filed the supplemental proposed rule regarding 
bluefin tuna issues on February 22, 1999, and express-mailed copies of 
the Bluefin Tuna Addendum to AP members and other consulting parties to 
maximize time to review the document before the deadline for comments. 
In response to public requests that additional time was needed to 
review the Addendum, NMFS subsequently extended the comment period 
deadline (except for proposed swordfish import restrictions) to March 
12, 1999, to allow for 2 weeks of additional comments, and added a 
public hearing at the end of the scheduled 26 hearings.

Atlantic Swordfish

Swordfish Rebuilding
    Comment 1: NMFS received many comments in support of swordfish 
rebuilding programs with various timetables, including the adoption of 
an ICCAT-recommended rebuilding program and rebuilding programs shorter 
than 10 years.
    Response: NMFS must implement the ICCAT-recommended quota once it 
is accepted by the United States, and has supported the development of 
a rebuilding program for swordfish by ICCAT scientists. NMFS believes a 
10-year rebuilding program for North Atlantic swordfish is appropriate. 
NMFS considered a shorter rebuilding program but seeks to balance a 
reduction in short-term impacts on small businesses and recovery of the 
stock.
    Comment 2: NMFS should ban swordfish fishing for 5 years.
    Response: The United States cannot reduce the swordfish quota to 
zero for 5 years; the United States is required by ATCA to adopt ICCAT 
quotas once the United States accepts the ICCAT recommendation. NMFS is 
establishing a foundation for working through the ICCAT process, to 
develop an international rebuilding program for Atlantic swordfish once 
measures are accepted by the United States. Unilateral action will not 
rebuild swordfish. Banning U.S. swordfish fishing will not rebuild the 
stock; international action is necessary.
    Comment 3: NMFS should have a clear statement of objectives and 
measures for the international rebuilding of swordfish, contrary to 
what happened at ICCAT in 1998 with bluefin tuna. Those objectives 
should include a 10-year rebuilding program with associated quota 
reductions, closed spawning areas to reduce bycatch of juvenile 
swordfish, and a reduction in fishing capacity.
    Response: The ICCAT Advisory Committee (IAC) works with the U.S. 
commissioners to ICCAT and NMFS to develop the negotiating strategy at 
ICCAT. The HMS FMP serves as the foundation for developing an 
international rebuilding program that is consistent with the Magnuson-
Stevens Act; the final action states that NMFS believes a 10-year 
program is appropriate. The IAC and commissioners will seek comment on 
the U.S. position at ICCAT at five regional meetings in the Fall of 
1999 as well as at the IAC meeting scheduled for October 1999.
    Comment 4: NMFS should include an allowance for having swordfish 
fillets/steaks on board for personal consumption, similar to the 
groundfish fishery management plan.
    Response: NMFS cannot implement this measure at this time because 
it was not contained in the proposed rule (or draft FMP). However, NMFS 
has studied similar existing regulations in other fisheries and may 
raise the issue at a future meeting of the HMS Advisory Panel.
    Comment 5: NMFS should reinstate the commercial retention limit 
(trip limit) for swordfish to help maintain higher prices and make sure 
quotas are not exceeded.
    Response: NMFS established the commercial retention trip limit in 
order to slow catch rates. Since that time, many large capacity vessels 
have left the Atlantic pelagic longline fishery. If a need arises in 
the future, NMFS will consider other commercial retention limits, as 
well as other alternatives, for addressing these problems.
    Comment 6: NMFS should not exempt vessels with a vessel monitoring 
system (VMS) unit from the swordfish retention limits in the North 
Atlantic Ocean during a closure of that directed fishery. Vessels could 
make one set south of the line, come north, and then continue to make 
sets north of the line and NMFS would not know where the swordfish were 
caught.
    Response: VMS is required by all pelagic longline vessels, and 
regulations have been altered to accommodate this measure, therefore, 
there is no ``exemption.'' NMFS agrees that VMS does not indicate how 
many swordfish are caught in a set. However, VMS would reveal if a 
longline set was made in the (closed) north Atlantic, should such a 
violation occur. It is not necessary to know the number of fish caught 
in a closed area to impose civil penalties.
    Comment 7: When the quota for swordfish landings is met, no 
swordfish imports should be allowed into the United States.
    Response: NMFS disagrees. Trade restrictive measures must be based 
on strong evidence that there are resource conservation benefits to 
such measures and must be consistent with international legal 
obligations. Note also that NMFS has implemented a final rule 
prohibiting the import of Atlantic swordfish less than the ICCAT 
alternative minimum size, and requiring documentation of the source of 
all swordfish imports in an effort to better monitor international 
fishing levels.
     Comment 8: The swordfish data collected off the coast of south 
Florida in the 1980s are biased and incomplete. The fishery was 
severely depleted at that time due to the expansion of the near-shore 
longline fishery off Florida, which adversely affected juvenile and 
migrating fish.
    Response: The data collected on fishing mortality of juvenile and 
migrating swordfish off Florida in the 1980s are currently the best 
available scientific information to reflect the historical conditions 
of that fishery. However, if additional data become available, they 
could be incorporated in the stock assessment.

Swordfish Recreational Fishery

    Comment 1: NMFS received many comments on the issue of accounting 
for recreational fishing mortality, including suggestions for future 
monitoring programs. These suggestions included maintaining the status 
quo, establishing a new recreational directed fishery quota, or 
supporting the proposed measure of subtracting recreational landings 
from the incidental catch quota.
    Response: NMFS needs time to assemble the historical data that 
exist and therefore cannot set a reasonable recreational directed 
fishery quota at this time. However, NMFS recognizes that effort in 
this sector is growing as swordfish encounters appear to be increasing 
in some areas and therefore swordfish recreational landings need to be 
subtracted from the U.S. swordfish quota. NMFS will subtract 
recreational swordfish landings from the incidental catch quota and may 
establish a directed

[[Page 29105]]

fishery quota and monitoring program, when and if appropriate.
     Comment 2: NMFS should establish a recreational swordfish 
retention limit of 1 swordfish per person per day.
    Response: NMFS disagrees. Recreational directed fishing mortality 
is not sufficiently known at this time to determine the impacts of a 
recreational retention limit for swordfish. Retention limits may be 
established in the future through the framework process.
    Comment 3: The proposed regulations imply that if the recreational 
catch is subtracted from the Incidental catch quota and that quota 
category closes because the quota is met, then there will be a closure 
of the recreational fishery.
    Response: NMFS' intent is to account for all sources of mortality, 
including the recreational catch of swordfish. Therefore, if the 
incidental catch quota category is closed, all fishermen who catch 
swordfish incidentally, including all recreational fishermen, must 
release them. As noted in Comment 1 in this section, NMFS may consider 
a subquota for recreationally-caught swordfish in the future.

Counting Dead Discards Against the Swordfish Quota

    Comment 1: NMFS received many comments on the issue of accounting 
for all sources of mortality on the swordfish stock. These comments 
supported either unilateral or multilateral (or both) measures to count 
dead discards against overall quotas.
    Response: NMFS agrees that accounting for all sources of mortality 
will enhance rebuilding, and this FMP establishes the foundation to 
count dead discards against the swordfish quota. NMFS cannot count dead 
discards against the ICCAT quota unless recommended by ICCAT.
    Comment 2: If NMFS counts dead discards of swordfish against the 
quota, then NMFS should eliminate the minimum size and allow fishermen 
to land and utilize all hooked swordfish.
    Response: NMFS implemented the alternative ICCAT minimum size of 33 
lb dw in 1996 and has implemented a ban on sale of swordfish less than 
that size in the United States. Counting dead discards against the U.S. 
quota may serve as an incentive for fishermen to avoid areas of small 
swordfish concentration. By coupling a minimum size measure with a 
future time/area closure, NMFS' intent is to reduce U.S. mortality of 
undersized swordfish.
    Comment 3: Allocation of quotas should be gear-specific and 
discards should be counted against these specific gear allocations.
    Response: NMFS authorized longline, harpoon, and other handgear 
fishermen to fish for Atlantic swordfish in a directed commercial 
fishery. NMFS does not intend to further sub-divide the directed quota 
at this time due to low swordfish landings by handgear fishermen. Dead 
discards would be counted against the entire category.
    Comment 4: NMFS counted swordfish dead discards against the quota 
in the past and it did not make a difference to the stock.
    Response: NMFS has always monitored and reported dead discards in 
the commercial swordfish fishery to ICCAT, and this mortality was taken 
into account in assessing total mortality of swordfish. NMFS wants to 
account for all sources of mortality, and to create every incentive for 
vessel operators to minimize bycatch and bycatch mortality of HMS. 
Rebuilding swordfish stocks requires more than just accounting for dead 
discards, it requires a decrease in fishing mortality rate to rebuild 
overfished stocks. In the past, the fishing mortality rate was too high 
and has resulted in overfishing, regardless of whether dead discards 
were included in the quota.

Swordfish Size Limits

    Comment 1: NMFS should consider eliminating the minimum size limit 
for swordfish because other countries keep all their swordfish.
    Response: A minimum size is effective only if it results in a 
decrease in catch of small swordfish because fishermen are able to 
modify their behavior or if the survival of released fish is 
sufficiently high to offset the fishing mortality that may result. 
Fishermen have been able to reduce small swordfish bycatch to a certain 
extent, but additional measures may now be necessary to enhance the 
effectiveness of the minimum size (e.g., time/area closures.) NMFS 
recognizes the need for further progress in reducing small swordfish 
mortality, and will use all available information to consider other 
measures to do so (e.g., time/area closures, gear modifications, etc.)
    Comment 2: The United States has failed to comply with ICCAT 
recommendations to protect juvenile swordfish.
    Response: NMFS has adopted the alternative minimum size for 
swordfish, has prohibited the sale of undersized swordfish, and keeps 
appropriate records of swordfish discards. All of these measures are 
consistent with ICCAT recommendations to protect small swordfish.
    Comment 3: NMFS received many comments on the minimum size for 
swordfish that ranged from maintaining the status quo to adopting a 
schedule of small annual increases in the swordfish minimum size limit 
above the current minimum size limit of 33 lb (15 kg) dressed weight 
(dw). Other comments: include the minimum size in the framework; 
consider more creative options for minimum sizes such as changing 
tolerance levels so the swordfish are not wasted; and consider options 
that would be acceptable in the international context to reduce size 
compliance issues that would otherwise undercut rebuilding schedules.
    Response: Reducing mortality of small swordfish is important to the 
recovery of the stock. Increasing the minimum size in increments over 
time, however, makes it difficult to assess changes in stock size and 
structure due to the way size-specific abundance data are collected. 
Increasing the minimum size might increase longline discards given the 
fact that swordfish do not segregate by size class throughout the 
Atlantic. NMFS prefers to maintain the minimum size and implement time/
area closures, gear modifications, and other measures to reduce bycatch 
of undersized swordfish and increase survival of released fish. NMFS 
has included the swordfish minimum size in the FMP framework and is 
addressing small swordfish bycatch reduction through development of 
more effective time/area closures of the pelagic longline fishery.

Atlantic Sharks

Shark Fishing Gears
    Comment 1: NMFS should prohibit commercial fishing gears; NMFS 
should prohibit longline gear.
    Response: NMFS disagrees. The final actions in the HMS FMP are 
expected to meet the conservation goals to rebuild large coastal sharks 
(LCS) and prevent overfishing of pelagic and small coastal sharks (SCS) 
while allowing limited commercial harvest of sharks to continue.
    Comment 2: NMFS should ban shark drift gillnets because of 
excessive bycatch of finfish and protected species in that fishery, and 
because the Atlantic Large Whale Take Reduction Plan (ALWTRP) 
regulations do not address sea turtle and finfish bycatch issues.
    Response: NMFS is gathering information on the effect of drift 
gillnets in Atlantic shark fisheries on protected species, juvenile 
sharks, and other finfish. However, because the limited data available 
at this time do not indicate high bycatch and bycatch mortality of 
protected species, juvenile sharks, and other finfish in the shark 
drift gillnet fishery, NMFS is not

[[Page 29106]]

prohibiting use of this gear in shark fisheries at this time, 
consistent with NS 2 which requires that management measures be based 
on the best scientific information available. NMFS requires 100 percent 
observer coverage in the southeast shark drift gillnet fishery at all 
times to increase data on catch, effort, bycatch and bycatch mortality 
rates in this fishery.
    Comment 3: NMFS should not adopt the ALWTRP regulations, which are 
implemented under the Marine Mammal Protection Act, under Magnuson-
Stevens Act because the purposes and goals of the Acts are different.
    Response: NMFS believes that adoption of these regulations under 
the Magnuson-Stevens Act will increase effective regulatory consistency 
by regulating fishing activities under the authority of the Magnuson-
Stevens Act to comply with Marine Mammal Protection Act objectives. 
NMFS is currently considering the implications of several regulations 
that affect the practice of strikenetting in the shark drift gillnet 
fishery. These regulations include the List of Fisheries and Gear under 
the Magnuson-Stevens Act (64 FR 4030), the ALWTRP regulations under the 
Marine Mammal Protection Act (64 FR 7529), and the proposed rule to 
implement the HMS FMP (64 FR 3154). NMFS will address any 
inconsistencies through future regulatory and other actions.
    Comment 4: NMFS should require 100 percent observer coverage in the 
southeast shark drift gillnet fishery to make sure that all bycatch is 
documented.
    Response: NMFS agrees.
    Comment 5: The ALWTRP regulations, which are effective in April, 
1999, will have huge economic impacts on, and may eliminate, the 
southeast shark drift gillnet fishery due to the prohibition on night 
sets.
    Response: The economic effects of the regulations implementing the 
ALWTRP were considered in that rulemaking (62 FR 39175, July 22, 1997; 
64 FR 7529, February 16, 1999).
    Comment 6: NMFS should not require 100 percent observer coverage in 
one fishery; observer coverage should be comparable in all fisheries.
    Response: NMFS agrees that observer coverage should be comparable 
in that the level of coverage should be adequate to meet scientific and 
management data needs. NMFS disagrees that levels of observer coverage 
must be the same across fisheries that use different gear, fish in 
different areas, or have different bycatch rates.
    Comment 7: NMFS should consider converting all shark drift gillnet 
boats to longline gear to reduce bycatch and the costs of monitoring 
this fishery.
    Response: NMFS believes that the combination of the measures in the 
HMS FMP, including capping the SCS quota, the requirement for 100 
percent coverage at all times in southeast shark drift gillnet fishery, 
and adoption of the ALWTRP regulations under Magnuson-Stevens Act, are 
appropriate to address bycatch concerns in this fishery at this time.
    Comment 8: NMFS should require species-specific reporting in the 
menhaden purse seine fishery, count all dead discards of sharks against 
the commercial quotas, and encourage use and development of bycatch 
excluder devices.
    Response: NMFS agrees that more species-specific reporting and 
increased observer coverage may be warranted to determine the catch, 
effort, and bycatch and bycatch mortality rates in the menhaden purse 
seine fishery. NMFS intends to fully analyze available information and 
will work with the appropriate regulatory agencies to consider 
additional management measures in the future as necessary.
    Comment 9: NMFS should implement the authorized gears for sharks as 
proposed.
    Response: NMFS agrees. NMFS is currently considering the 
implications of several regulations that affect the practice of 
strikenetting in the shark drift gillnet fishery. These regulations 
include the List of Fisheries and Gear under the Magnuson-Stevens Act 
(64 FR 4030), the ALWTRP regulations under the Marine Mammal Protection 
Act (64 FR 7529), and the proposed rule to implement the HMS FMP (64 FR 
3154). NMFS will address any inconsistencies through future regulatory 
and other actions.

Sharks-General

    Comment 1: The original FMP is working and NMFS should give the 
regulations a chance to be reflected in the science before making more 
changes.
    Response: NMFS disagrees. The final HMS FMP measures for Atlantic 
sharks are in large part based on 1998 Shark Evaluation Workshop 
results that indicate that additional reductions in effective fishing 
mortality are necessary to rebuild LCS. The HMS FMP also implements 
several precautionary measures for pelagic and SCS in order to prevent 
these species from being overfished.
    Comment 2: NMFS should ensure that states implement similar size 
restrictions for sandbar sharks; effective LCS and SCS management will 
require coordination with regional councils and states.
    Response: NMFS has asked states to attend AP meetings and to 
implement regulations consistent with Federal regulations. Several 
states have implemented or are in the process of implementing 
consistent or more stringent shark regulations. NMFS intends to 
continue to work with the Atlantic and Gulf coastal states, the 
regional fishery management councils, and the regional commissions to 
coordinate consistent regulations for sharks in state and Federal 
waters.
    Comment 3: NMFS developed management options without international 
consensus and has failed to pursue comparable shark conservation 
throughout the range of these species. NMFS should justify implementing 
unilateral actions when international actions are necessary to rebuild 
shark stocks.
    Response: Domestic action is warranted due to the fact that several 
important nursery areas are located within U.S. waters and that 
proactive domestic management is a critical element for successful 
international shark management. NMFS disagrees that it has failed to 
pursue comparable shark conservation internationally. The United States 
was a leading participant in the recent FAO Consultation on Shark 
Conservation and Management, which resulted in the adoption of the 
Global Plan of Action for Sharks. ICCAT is pursuing additional data 
collection and analyses on sharks through its current authority. NMFS 
is also pursuing regional management through cooperative discussions 
with Canada and Mexico.
    Comment 4: NMFS must increase observer coverage and port sampling 
(perhaps to 50 percent of fishing effort) to determine the 
effectiveness of the measures in the HMS FMP, particularly the 
effectiveness of minimum sizes to reduce fishing mortality on juvenile 
sandbar and dusky sharks, and to determine bycatch and bycatch 
mortality of prohibited species and undersized fish. NMFS should 
conduct length frequency monitoring on an annual basis.
    Response: NMFS agrees that observer coverage, port sampling, and 
length frequency monitoring can be important tools in evaluating the 
effectiveness of the final actions, including the prohibition on 
possession of dusky sharks. One of NMFS' goals is to ensure that 
monitoring and observer coverage meet scientific assessment needs. NMFS

[[Page 29107]]

intends to take practicable steps to increase observer coverage.
    Comment 5: NMFS should consider regional differences in its 
management.
    Response: NMFS agrees and has attempted to do so in the development 
of the HMS FMP. NMFS believes that the establishment of ridgeback and 
non-ridgeback LCS subgroups and the new procedures to adjust for quota 
over/underharvest address these concerns.
    Comment 6: NMFS received several comments regarding minimum sizes 
for sharks, ranging from a minimum size of 4 feet and 4.5 feet for all 
sharks, 5 feet for all sharks, 3 feet for all small sharks, 6 feet for 
large sharks, 6 feet for mako and thresher sharks, 7 feet for LCS, and 
8 feet for blue sharks, and support for using slot limits for sharks.
    Response: NMFS agrees with use of minimum sizes as a tool to reduce 
effective fishing mortality on sharks. For this tool to be successful, 
it must be relatively simple, comprehensive, and enforceable. NMFS has 
selected the most efficient minimum size limit for accomplishing the 
FMP objectives within these constraints. NMFS may consider additional 
management measures, including increasing minimum sizes and slot 
limits, in the future.
    Comment 7: NMFS should do population assessments in 1999 for 
pelagic sharks and in 2000 for SCS.
    Response: NMFS agrees that the stock status of pelagic sharks and 
SCS should be assessed at the soonest practicable time. The ICCAT SCRS 
bycatch subcommittee will be analyzing pelagic shark catch rates in May 
1999, and the United States will participate in that meeting. 
Additional stock assessments will be conducted as practicable.
    Comment 8: NMFS should establish all catch and release or tag and 
release fishing for sharks.
    Response: NMFS disagrees. NMFS believes that limited harvest of 
some sharks subject to reduced retention limits and a minimum size in 
commercial and recreational fisheries meet the conservation goals to 
rebuild overfished species and prevent overfishing while minimizing 
social and economic impacts that an all tag-and-release fishing 
requirement would impose.
    Comment 9: NMFS should rebuild coastal sharks within 30 years.
    Response: NMFS agrees that the 30 year rebuilding program for the 
non-ridgeback LCS species outlined in the HMS FMP is appropriate. 
However, for the ridgeback LCS species, NMFS believes that a 39-year 
rebuilding program is appropriate because of the sandbar shark (the 
primary ridgeback LCS) life history.
    Comment 10: Analyses of total mortality may be in error if 
``catch'' vs. ``harvest'' data are used, especially for sharks.
    Response: NMFS agrees and the sections in the final HMS FMP that 
describe recreational fisheries, particularly for shark recreational 
fishing mortality, have been clarified and uniformly refer to 
recreational landings or harvest, not catches, consistent with MRFSS 
terminology.
    Comment 11: NMFS should dissolve the Operations Team (OT) because 
the HMS AP fulfills the OT's role.
    Response: NMFS agrees.
    Comment 12: NMFS should initiate species identification training 
for sharks.
    Response: NMFS agrees and intends to increase public education and 
outreach including workshops and the production of an identification 
guide for all HMS.

Shark Public Display Permitting and Reporting

    Comment 1: NMFS should implement the proposed shark EFP process 
because it is necessary to track/enforce the regulations.
    Response: NMFS agrees.
    Comment 2: NMFS should extend the reporting period to 72 hours at a 
minimum and ideally to 5 days to allow collectors time to determine 
whether the animal can adapt to the aquarium (if not, the animals are 
released alive).
    Response: NMFS agrees. In the draft HMS FMP, NMFS proposed to 
require EFP holders to mail in the information cards for authorized 
collections within 24 hours of collection to increase the ability to 
track and enforcement of authorized EFP activities. NMFS received 
several comments that supported extending the reporting period, and 
that were consistent with the intention of selected EFP process. 
Therefore, NMFS extends the reporting period to 5 days to allow 
collectors time to determine the health of the animal.
    Comment 3: NMFS should not require American Zoo and Aquarium 
Association (AZA) membership in order to get an EFP because it is 
expensive and new aquariums cannot join until they've been open for a 
couple of years.
    Response: NMFS agrees. The draft HMS FMP did not specifically 
propose to require AZA membership in order to receive an EFP, but did 
discuss the possibility of linking EFP issuance to AZA membership due 
to the detailed protocol and facility requirements for membership. Due 
to the inability of new aquariums to obtain AZA accreditation and the 
burden and expense of the accreditation process, NMFS will not require 
AZA accreditation but will consider AZA accreditation, or equivalent 
standards, as meeting the requirement to provide adequate facilities 
for animal husbandry (under merits of the application).
    Comment 4: NMFS should implement quarterly quotas for EFPs to 
ensure fair and equitable allocation of animals under the public 
display quota.
    Response: NMFS disagrees. The HMS FMP does not establish quarterly 
quotas for EFPs because the selected annual quota of 60 mt ww should be 
sufficient to ensure fair and equitable allocation. Should the requests 
for sharks public display collections increase in the future, NMFS will 
reconsider the public display quota at that time.
    Comment 5: NMFS should not implement the public display quota 
because the take is insignificant, the delays and burden in the current 
system are manageable, and aquarium people are honest.
    Response: NMFS does not believe that low harvest levels preclude 
the need for improvements in monitoring and enforcement capabilities, 
where practicable. Regarding delays and burden under current 
regulations, NMFS believes that the benefits of increased monitoring 
and enforcement capabilities exceed those associated with the status 
quo.
    Comment 6: NMFS should evaluate an EFP request based on the number 
of animals previously collected, not requested.
    Response: NMFS believes that both the number of animals previously 
requested and collected must be considered in evaluating an 
application.
    Comment 7: NMFS should not require the use of invasive tags which 
can become infected and are unsightly.
    Response: NMFS agrees that the least invasive tags are preferable. 
NMFS implements the requirement that all sharks harvested under the 
selected public display regulations be immediately tagged with a 
Hallprint tag issued by NMFS in order to be considered an authorized 
collection. The tag may be removed from the animal and kept on file 
once the animal is transported to the aquarium where it will be 
displayed. NMFS may consider alternative types of tags as costs and 
practicalities warrant.
    Comment 8: NMFS should develop species-specific public display 
quotas, especially for sand tiger sharks.
    Response: NMFS agrees that species-specific harvest levels are 
preferable and NMFS may develop species-specific harvest levels as data 
permit.

[[Page 29108]]

    Comment 9: Aquarium personnel should be allowed to remove the tags 
when the animal reaches its final destination and to keep the tags on 
file.
    Response: NMFS agrees and has modified the HMS FMP and final rule 
accordingly.
    Comment 10: NMFS should keep the status quo system because NMFS has 
not given the EFP process, which was new in 1998, a chance to be 
evaluated.
    Response: NMFS disagrees. The current regulations governing EFP 
issuance have been in place, and NMFS has been issuing EFPs for sharks 
for the purposes of public display, since 1996. The prohibition on 
possession of sand tiger sharks, a popular aquarium species, in 1997 
increased the requests and issuance of EFPs for public display in 1997 
and 1998. Accordingly, NMFS has had three years to evaluate the current 
regulations and believes that the selected public display permitting 
and reporting system is preferable because it allows for increased 
monitoring and enforcement of the authorized collections.
    Comment 11: NMFS should not count animals and tags for fish that 
are collected under an EFP but are eventually released alive.
    Response: NMFS agrees, as long as the sharks are released alive.
    Comment 12: NMFS should establish a separate public display quota 
for sharks exported to foreign aquariums.
    Response: NMFS disagrees. Sharks harvested in Federal waters in the 
Atlantic Ocean, Gulf of Mexico, and Caribbean Sea are taken from the 
same stocks regardless of their ultimate destination such that NMFS 
does not believe that separate quotas are warranted.
    Comment 13: The proposed public display quota of 60 mt ww is 
reasonable.
    Response: NMFS agrees.

Anti-Finning of Sharks

    Comment 1: NMFS should implement the proposed total prohibition on 
finning.
    Response: NMFS agrees. Extending the prohibition on finning to all 
species of sharks will greatly enhance enforcement and contribute to 
rebuilding or maintenance of all shark species.
    Comment 2: NMFS should not extend the prohibition on finning sharks 
because it disadvantages U.S. fishermen relative to foreign competitors 
and NMFS should allow a tolerance for blue shark fins to be landed.
    Response: NMFS disagrees. Finning of sharks within the Federal 
management unit has been prohibited since the original shark FMP was 
implemented in 1993 due to excessive waste associated with this 
practice. NMFS extends the prohibition on finning to all sharks to 
enhance enforcement and facilitate stock rebuilding and maintenance.

Sharks: Prohibited Species

    Comment 1: NMFS should implement the prohibitions on possession for 
all species proposed as part of the policy change from prohibiting 
species that cannot withstand fishing pressure to one allowing 
retention of only those species known to be able to withstand fishing 
pressure.
    Response: NMFS agrees.
    Comment 2: NMFS should not include more species into the prohibited 
species group because enforcement is a problem and it is difficult to 
distinguish certain sharks from each other. Response: NMFS acknowledges 
that some of the prohibited species are difficult to distinguish from 
species that are allowed to be retained. Regarding problems of 
enforcement, additional training and education in shark identification 
as well as reducing the number of shark species authorized for 
retention may facilitate enforcement. The approach taken in the HMS FMP 
should encourage fishermen who have doubts about the identification of 
a certain fish to release rather than retain it, thereby reducing 
fishing mortality of fish that are difficult to identify.
    Comment 3: The proposed additions to the prohibited species list 
will increase dead discards because certain sharks are already dead 
when gear is retrieved. It would be better to utilize the mortality 
than discard.
    Response: NMFS acknowledges that, for sharks that come to the 
vessel dead, adding them to the prohibited species list will increase 
regulatory discards. NMFS also acknowledges that adding such species to 
the prohibited species list will prevent utilization of such mortality. 
However, the benefits of preventing directed fisheries and/or markets 
for species that may not be able to withstand directed fishing pressure 
far outweigh the drawbacks of increasing regulatory discards, 
especially since NMFS believes that the magnitude of such regulatory 
discards is likely to be minor. As these species could have been 
retained previously and most have not been landed in large volume to 
date (except dusky sharks, see below), NMFS believes that most of these 
species are either not currently marketable or are not frequently 
encountered.
    Comment 4: NMFS received numerous comments on the proposal to add 
dusky sharks to the prohibited species management group, including 
complete support of the measure as proposed, support of a commercial 
prohibition with an allowance for recreational catches if there was a 
high minimum size, support of more regional management since the 
problems with dusky sharks seem to be mostly in the Atlantic, 
opposition to the proposal because current regulations provide adequate 
protection, concerns that a dusky shark prohibition will lead to data 
degradation because they will be landed as sandbar sharks due to their 
high market value, and concerns that a prohibition on dusky sharks for 
the Gulf of Mexico will increase waste and regulatory discards because 
they all come to the boat dead or because fishermen will discard all 
sandbar sharks as well because they cannot be distinguished from dusky 
sharks.
    Response: By prohibiting possession of dusky sharks, NMFS expects 
that fishermen will adjust their fishing activities accordingly. 
Further, although many dusky sharks are dead when brought on board the 
vessel, some are not dead and requiring their release will reduce 
fishing mortality. Additionally, other measures in the HMS FMP will 
reduce fishing effort and, therefore, catch. NMFS also notes that dusky 
sharks have been placed on the Candidate Species List for the 
Endangered Species Act due to their stock status, which further 
justifies a prohibition on possession. The most effective way to reduce 
fishing mortality would be to prohibit fishing for sharks. However, 
NMFS believes that the measures in the HMS FMP will allow rebuilding 
while limited commercial fishing for and harvest of sharks can 
continue.
    Comment 5: NMFS should prohibit the possession of sandbar sharks as 
well as dusky sharks because these species are caught frequently in the 
same areas on the same gear and because fishermen cannot tell them 
apart.
    Response: NMFS disagrees that such a measure, which would 
essentially close directed commercial shark fisheries, is necessary to 
meet conservation goals and rebuild sandbar shark stocks. NMFS believes 
that the combination of final actions in the HMS FMP will rebuild 
sandbar sharks while allowing limited commercial harvest of sharks to 
continue.
    Comment 6: NMFS should consider implementing a minimum size and 
maximum size for dusky sharks to protect both juveniles and adults. 
Since the largest sandbar shark is smaller than the largest dusky 
shark, a maximum size limit may allow fishing on all adult sandbar 
sharks while limiting fishing on

[[Page 29109]]

dusky sharks to only a portion of the population.
    Response: At this time, NMFS believes that a complete prohibition 
on dusky sharks is warranted due to their severe population declines 
and low reproductive rate. NMFS may consider a minimum and maximum size 
limit as appropriate in the future as dusky shark populations rebuild.
    Comment 7: Data do not support adding dusky, bignose, and bigeye 
thresher sharks to the prohibited species list; just because these 
species are not landed does not mean that they are not out there.
    Response: NMFS disagrees that data do not support the prohibition 
on possession of dusky sharks. Catch rate data indicate large 
population declines of dusky sharks since the 1970s and NMFS is 
concerned that even bycatch mortality alone may negatively impact this 
species' ability to rebuild to MSY levels due to its low reproductive 
rate. Regarding the prohibition on possession of bignose and bigeye 
thresher sharks, addition of these species to the prohibited species 
list is a precautionary measure to ensure that directed fisheries and/
or markets do not develop; the measure is not based on evidence of 
stock declines at this time.
    Comment 8: NMFS should take longfin mako off the prohibited species 
list and add them to the pelagic list.
    Response: NMFS disagrees. This species is added to the prohibited 
species list because it is not currently landed and including it on the 
prohibited species list will ensure that directed fisheries and/or 
markets do not develop until it is known that this species can 
withstand specified levels of fishing mortality.
    Comment 9: NMFS should not prohibit night sharks because data 
indicating declines in catches are due to fishermen avoiding areas with 
night sharks in order to avoid small swordfish.
    Response: NMFS acknowledges that changes in fishing patterns may 
affect catches and catch rate data and NMFS has listed this issue as a 
research area for further investigation. NMFS disagrees that 
prohibiting possession of night sharks based on existing data is 
inappropriate at this time; however, NMFS may consider additional 
management measures, including removing night sharks from the 
prohibited species management group, as data warrant.
    Comment 10: NMFS received numerous comments on the proposal to add 
blue sharks to the prohibited species management group, including that 
NMFS should not add blue sharks to the prohibited species management 
group because the catch rate data in the HMS FMP do not warrant a 
prohibition, that it is unfair and discriminatory to ban harvest of 
blue sharks in the recreational fishery while the commercial fisheries 
can kill 273 mt dw of blue sharks through the dead discard quota 
contrary to NS 4 and section 304(g) of the Magnuson-Stevens Act, that 
blue sharks are one of the last available species for recreational 
fisheries as regulations on other species have become more restrictive, 
that the prohibition on blue sharks would have significant economic 
impacts because numerous tournaments and charter operations in the mid-
Atlantic and northeast target blue sharks, that waste is not as 
prevalent as the HMS FMP indicates because some tournaments provide 
blue shark meat to food banks and prisons, and that prohibiting blue 
sharks will increase regulatory discards, contrary to NS 9.
    Response: NMFS agrees that blue sharks should not be added to the 
prohibited species management group. As stated in the draft HMS FMP, 
NMFS proposed the prohibition on blue sharks to address concerns 
regarding the high numbers of blue sharks discarded dead in commercial 
fisheries and to create an incentive to reduce blue shark discards 
(especially dead discards). NMFS proposed the prohibition on blue 
sharks for both the commercial and recreational fisheries to be 
equitable to all user groups. However, NMFS received substantial 
comments describing the social and economic impacts of the proposal to 
prohibit possession of blue sharks. In part due to these comments, the 
upcoming ICCAT SCRS meeting to analyze pelagic shark catch rate data, 
and the establishment of a blue shark quota against which landings and 
dead discards will be counted, NMFS withdraws the proposal and does not 
implement the prohibition on possession of blue sharks. By establishing 
a blue shark commercial quota and reducing that quota by blue shark 
dead discards as well as landings, NMFS hopes to create an incentive to 
maximize the survival of blue sharks caught incidentally to other 
fishing operations. NMFS will reduce the pelagic shark quota by any 
overharvest of the blue shark quota to address concerns that dead 
discards of blue sharks can constitute a significant portion of the 
pelagic shark quota. If dead discards of blue sharks do not exceed the 
selected 273 mt dw quota, the pelagic shark quota would not be 
affected.
    Comment 11: NMFS should maintain the commercial prohibitions on 
those species of concern (like blue sharks) but should allow 
recreational harvest with a high minimum size to continue because the 
impacts of recreational harvest are so low.
    Response: NMFS disagrees. As stated in the draft HMS FMP, NMFS 
proposed the prohibition on possession of several shark species for 
both the commercial and recreational fisheries to be equitable to all 
user groups. While bycatch and bycatch mortality rates may warrant an 
analysis of allowing retention of species by some user groups while 
denying access to other user groups in the future, NMFS believes that 
regulations on retention should apply to all user groups equally at 
this time.
    Comment 12: Environmental groups should put up some money for a 
``dusky fund'' to pay for fishermen to photograph and release all the 
dusky sharks they catch.
    Response: This comment is not within NMFS' authority to implement.

Commercial Shark Fishery

    Comment 1: NMFS should ban commercial fishing for sharks, stop all 
sales of sharks caught offshore of the United States, and not allow any 
shark parts (especially fins) to be exported or consumed domestically.
    Response: NMFS disagrees as noted above(under Shark Fishing Gears).
    Comment 2: NMFS' proposed alternatives will destroy the directed 
shark fishery and do not provide for sustained participation by 
directed shark fishermen and their communities, contrary to NS 8.
    Response: NMFS acknowledges that the final actions will likely have 
a significant economic impact on some shark fishermen, particularly LCS 
fishermen. NMFS specifically chose the final actions, as a group, both 
to minimize social and economic impacts to the extent practicable and 
to meet the goals of the HMS FMP and the Magnuson-Stevens Act to 
rebuild overfished fisheries. The final action attempts to maximize 
fishing opportunities while attaining the rebuilding requirements of 
the Magnuson-Stevens Act.
    Comment 3: NMFS should schedule fishery openings for specified 
periods and adjust the season-specific quotas the following year.
    Response: NMFS agrees.
    Comment 4: NMFS should count dead discards and state commercial 
landings made after Federal closure against the quotas.
    Response: NMFS agrees.
    Comment 5: Counting dead discards and state commercial landings 
after Federal closures against the quotas is

[[Page 29110]]

``double-dipping'' in that the assessments already account for dead 
discards and state landings and taking them off the quotas will doubly 
reduce the quotas.
    Response: NMFS disagrees. Dead discards and landings in state 
waters after Federal closures are included in the stock assessments 
when evaluating stock status and making projections for rebuilding 
based on different harvest levels. However, dead discards and landings 
in state waters after Federal closures have not been included in 
establishing past total harvest levels, which has likely contributed to 
the need for recent harvest reductions. If NMFS does not include all 
mortalities when establishing harvest levels, actual harvest levels are 
set too high and total mortalities exceed levels that would allow 
rebuilding.
    Comment 6: NMFS should establish a secondary target species quota 
for pelagic longline fisheries to allow secondary catches of LCS and 
pelagic sharks on pelagic longline vessels to be landed and to reduce 
waste.
    Response: NMFS agrees that separate quotas or set-asides may be 
appropriate for directed and/or incidental fisheries or different 
gears. NMFS may consider further subdivisions of available shark quotas 
once limited access is implemented and appropriate quotas or set-asides 
can be determined.
    Comment 7: NMFS should promote fuller utilization of catches 
instead of increasing regulatory discards. NMFS should consider 
eliminating all discards and requiring fishermen to land all their 
catches, which would provide true data and eliminate waste.
    Response: NMFS agrees that fuller utilization of catches, 
consistent with conservation objectives and other applicable law, is 
preferable to regulatory discards. NMFS may consider additional 
management measures, including retention of all catches which are 
counted against applicable quotas, in the future as appropriate.
    Comment 8: Measures for commercial fisheries should not be delayed 
pending development of a vessel buyback program.
    Response: NMFS agrees.
    Comment 9: NMFS should buy back commercial shark vessels.
    Response: NMFS has the authority to administer a vessel buyback 
program depending on availability of funds.
    Comment 10: NMFS should move finetooth sharks from the SCS 
management group to the LCS management group.
    Response: NMFS disagrees that finetooth sharks should be moved from 
the SCS management group to the LCS management group at this time 
because finetooth sharks have not been included in the LCS stock 
assessments to date. However, NMFS may consider adjustments to 
management groups under the framework procedure in the future.
    Comment 11: NMFS should implement quarterly quotas to distribute 
shark catches more evenly.
    Response: NMFS disagrees. The HMS FMP establishes several measures 
to address derby fishing conditions and distribution of shark catches. 
However, NMFS may consider additional measures, including quarterly 
quotas, as appropriate in the future.
    Comment 12: NMFS should have its assessments peer reviewed before 
taking any further actions, especially since the 1997 regulations are 
still the subject of legal review.
    Response: NMFS disagrees. The 1998 stock assessment represents the 
best available scientific information and peer review prior to 
implementing these measures is not necessary.
    Comment 13: NMFS should reduce quotas.
    Response: NMFS agrees that commercial quota reductions are needed 
to rebuild LCS. A commercial quota cap is implemented to prevent 
excessive growth in SCS fisheries. NMFS believes that the actions, 
including subquotas for porbeagle and blue sharks, under pelagic shark 
commercial quotas will meet conservation goals at current quota levels.
    Comment 14: NMFS should hold workshops for commercial shark 
fishermen using rod and reel.
    Response: NMFS agrees. NMFS intends to increase public education 
and outreach efforts including workshops for commercial fishermen.
    Comment 15: NMFS should not issue any experimental commercial shark 
fishing permits because LCS are severely overfished and pelagic and SCS 
are fully fished and any new gears will only increase derby conditions.
    Response: The status of shark stocks will be considered in 
decisions on whether to issue experimental fishing permits in 
commercial fisheries.

Large Coastal Sharks

    Comment 1: NMFS should establish the proposed ridgeback LCS 
subgroup with the 4.5 ft (137 cm) fork length (FL) minimum size and the 
non-ridgeback LCS subgroup with the reduced quota of 218 mt dw.
    Response: NMFS agrees.
    Comment 2: NMFS should close the directed LCS fishery and apply any 
available quota for this group to the unavoidable bycatch in the 
pelagic longline fisheries for other HMS. If it is concluded that these 
actions would preclude rebuilding of the coastal shark stocks, then 
neither recreational nor commercial harvest should be allowed until the 
stocks are rebuilt.
    Response: NMFS disagrees, as noted in the preceding general shark 
section.
    Comment 3: NMFS should deal with sharks on an emergency basis and 
cut the quota in half again.
    Response: NMFS is reducing the non-ridgeback LCS and SCS quotas by 
66 and 80 percent by weight, respectively, in addition to other 
measures (e.g., counting dead discards against the quota) that may 
further reduce the LCS, pelagic, and SCS quotas, consistent with the 
conservation goals.
    Comment 4: The ridgeback LCS quota, in addition to the prohibitions 
on possession of dusky and other sharks, may actually increase fishing 
mortality on sandbar sharks; NMFS should reduce the quota on ridgeback 
LCS in addition to the minimum size.
    Response: NMFS is aware that the prohibitions on possession of 
dusky and other sharks may increase fishing effort and mortality on 
sandbar sharks. However, dusky sharks comprised 2 and 5 percent of 
commercial shark landings in 1996 and 1997, respectively, and other 
prohibited species comprised less than 1 percent. Therefore, NMFS does 
not expect increased effort to be significant because the reductions in 
landings due to the prohibition of these species are not large. 
Additionally, NMFS believes that the combination of final actions will 
sufficiently reduce effective fishing mortality to allow rebuilding of 
sandbar and other ridgeback LCS.
    Comment 5: The proposed ridgeback vs non-ridgeback separation would 
skew the LCS quota toward slower-growing ridgebacks and could be 
extremely detrimental to their recovery. Status quo on the LCS 
management group except for overall quota levels would be better.
    Response: NMFS disagrees. The final actions that establish 
ridgeback and non-ridgeback LCS subgroups with separate management is 
based in part on the recommendation of the 1998 SEW that ``[e]very 
effort should be made to manage species separately.'' These actions do 
not manage on an actual species level because NMFS believes that the 
identification and enforcement problems of species-specific management 
are too great at this time. However, these actions will allow for 
management measures to be more tailored to those species complexes 
within the larger LCS group with which

[[Page 29111]]

different fisheries interact. These actions will establish higher 
harvest levels, but with a minimum size, for the ridgeback LCS than 
harvest levels for the non-ridgeback LCS due to the lack of size-depth 
segregation of the primary non-ridgeback LCS as well as new biological 
data that indicate that blacktip sharks have a lower reproductive rate 
than previously thought. For these reasons, NMFS selected a lower non-
ridgeback LCS harvest level than that for ridgeback LCS, and does not 
believe that these actions will be detrimental to ridgeback LCS 
rebuilding. These separate management measures will allow for more 
tailored rebuilding programs than managing all 22 species of the LCS 
management group as an aggregate.
    Comment 6: NMFS received several comments on minimum sizes for LCS, 
including support of the proposed limit, opposition to the proposed 
limit, that NMFS should implement species-specific minimum sizes and 
not an arbitrary 4.5 ft (137 cm) minimum size, that NMFS should 
implement a 120 cm minimum size for ridgeback LCS, that NMFS should 
implement a single minimum size for all LCS, and that NMFS should not 
implement a minimum size on sharks unless that minimum size is applied 
to all fishermen throughout the species' range.
    Response: NMFS agrees that a single minimum size for ridgeback LCS 
is warranted. A single minimum size of 137 cm FL for all ridgeback LCS, 
based on the age at first maturity for sandbar sharks, will afford 
year-round protection in Federal waters for the juvenile and subadult 
sizes that are the most sensitive to fishing mortality. This minimum 
size for the ridgeback LCS subgroup is selected because the sandbar 
shark, the primary species in the commercial and recreational 
fisheries, segregates by size and depth so that fishing effort can be 
concentrated on the less sensitive adults. No minimum size is 
implemented for the non-ridgeback LCS subgroup because the primary 
species in this subgroup, the blacktip shark, does not segregate by 
size and depth such that a minimum size may actually increase effective 
fishing mortality (more small fish would be caught and discarded in 
order to harvest the same quantity of larger fish). NMFS does not 
believe that species-specific minimum sizes are practicable at this 
time due to the lack of species-specific biological information on some 
species such that the appropriate minimum size is unknown and due to 
the practical problems of education and enforcement of multiple minimum 
sizes. NMFS believes that establishing a minimum size for ridgeback LCS 
is appropriate despite the lack of international management because 
strong domestic management is critical to establishing the foundation 
for international management and to compliance with domestic law.
    Comment 7: Because some small ridgeback LCS will still be caught in 
deeper water where they will be regulatory discards, a minimum size 
will increase overall mortality rates because at least some of those 
small fish will be discarded dead.
    Response: NMFS is aware that some undersized ridgeback LCS will 
still be caught in commercial fishing operations, which will be 
regulatory discards, and that some of these fish will be discarded 
dead. As stated in the HMS FMP, NMFS believes that such bycatch and 
bycatch mortality will be minimized to the extent practicable due to 
the size-depth segregation that sandbar and dusky sharks exhibit that 
should allow fishing efforts to concentrate on the mature adults. 
However, should the bycatch and bycatch mortality of undersized 
ridgeback LCS be higher than anticipated (based on observer data) and 
impede or jeopardize rebuilding, then NMFS may consider additional 
management measures to address these issues.
    Comment 8: The proposed minimum size on ridgeback LCS will increase 
waste because many undersized fish come to the boat dead. This also 
encourages illegal fishing activity.
    Response: NMFS acknowledges that the minimum size on ridgeback LCS 
may increase regulatory discards due to the inability of fishermen to 
land undersized fish and may increase waste if undersized fish are 
brought to the boat dead. As stated in the HMS FMP, NMFS is 
implementing a minimum size for ridgeback LCS due to observer data 
which indicate that sandbar sharks, the primary target species, 
segregate by size and depth so that fishing effort can be concentrated 
on adult sharks offshore. This size-depth segregation should minimize 
the amount of undersized fish caught and discarded (both dead and 
alive) such that regulatory discards and waste should also be 
minimized. (Due to the lack of depth-size segregation of the primary 
non-ridgeback LCS species, the blacktip shark, NMFS did not propose or 
implement a minimum size for this subgroup.) NMFS may consider 
additional management measures to address concerns regarding regulatory 
discards and waste due to the selected minimum size on ridgeback LCS as 
data warrant. Regarding illegal activity, the ridgeback LCS minimum 
size should be readily enforceable which should minimize illegal 
harvest.
    Comment 9: The adoption of a minimum size for ridgebacks is a good 
attempt to protect juveniles, but the position of forward measurement 
point is too variable. The first anterior cartilaginous dorsal fin ray 
(exposed when dorsal fin is removed) would be better.
    Response: NMFS agrees and changes the acceptable measurement of a 
dressed ridgeback LCS carcass from the first anterior cartilaginous 
dorsal fin ray to the precaudal pit or terminal point of the carcass to 
determine the size of ridgeback LCS.
    Comment 10: NMFS should restore the 1996 quota levels and implement 
minimum sizes, time/area closures, and limited access to control effort 
instead.
    Response: NMFS disagrees. Status quo harvest levels for LCS (which 
are 50 percent lower than 1996 harvest levels) would not meet NS 1 to 
prevent overfishing and rebuild overfished fisheries. NMFS does not 
believe that minimum sizes, time/area closures, and limited access 
would sufficiently reduce effective fishing mortality to allow LCS 
rebuilding under 1996 quota levels.
    Comment 11: NMFS should maintain the ridgeback LCS quota at 642 mt 
dw.
    Response: NMFS agrees, subject to the final actions to take dead 
discards and state landings after Federal closures off Federal quotas 
and as reduced by the public display and scientific research quota.
    Comment 12: NMFS should not reduce the non-ridgeback LCS quota but 
should leave it at 642.5 mt dw.
    Response: NMFS disagrees. The final action for non-ridgeback LCS 
quota levels included a reduction of 66 percent by weight in part due 
to new biological information on blacktip sharks, and the fact that 
1997 quota reduction of 50 percent was not as effective as expected. 
NMFS believes that without such a reduction in the non-ridgeback LCS 
quota, these stocks will not rebuild, contrary to NS 1.
    Comment 13: NMFS should phase in the reduction in the non-ridgeback 
LCS quota because the 1997 reduction is still under legal review, the 
1998 stock assessment for blacktips was poorly founded, and the problem 
of Mexican catches has not been addressed bilaterally.
    Response: NMFS disagrees. The alternative to phase in the reduction 
in the non-ridgeback LCS quota was not selected due to NMFS' concerns 
that phased-in quota reductions may not be appropriate for species or 
species complexes that require such long rebuilding periods. 
Additionally, NMFS

[[Page 29112]]

reduced the LCS commercial landings in 1993 when the original shark FMP 
was established and maintained that landings level until 1997 when NMFS 
reduced the LCS commercial quota again as an interim measure pending 
establishment of a long-term rebuilding program. NMFS believes that the 
1993 quota and 1997 interim reduction have already essentially phased 
in the reductions necessary for rebuilding LCS and that no further 
phase-in is warranted.
    Comment 14: Limited access will be ineffective.
    Response: NMFS disagrees. NMFS acknowledges that limited access 
will not solve all of the problems in the shark commercial fisheries 
but believes it is a significant first step in addressing 
overcapitalization.
    Comment 15: NMFS received comments that the 4,000 lb (1.81 mt) 
commercial retention limit for LCS fisheries should be maintained, that 
the commercial retention limit is too high, and that the limit will 
result in discards.
    Response: NMFS believes that the commercial LCS retention limit 
helps to extend the LCS seasons and that decreases in this limit may 
reduce the profitability of fishing trips and exacerbate derby fishing 
conditions. NMFS believes that the benefits of preventing derby fishing 
conditions from worsening, despite potentially increasing discards, 
outweigh the negative impacts of those discards.
    Comment 16: A 0.7-percent return rate of sandbar sharks from Mexico 
constitutes a significant source of mortality and NMFS should consider 
that mortality in stock assessments.
    Response: NMFS did consider Mexican catches of sandbar sharks in 
the 1998 SEW. As stated in the 1998 SEW Final Report, catches of LCS in 
Mexican fisheries were investigated and results from an intensive 
monitoring project of the artisanal shark fishery showed that sandbar 
sharks represented only 0.6 percent of the landings numerically. NMFS 
believes that these results are illustrative because the artisanal 
coastal fishery is estimated to account for about 80 percent of the 
total shark production in the Mexican side of the Gulf of Mexico. The 
low percentage of sandbar sharks in the Mexican artisanal fishery 
landings as well as a relatively low percentage of tag returns from 
Mexican waters did not support inclusion of Mexican landings in the 
species-specific assessment for sandbar sharks conducted at the 1998 
SEW. Should additional information become available indicating that 
Mexican catches of sandbar sharks are substantial, NMFS will include 
this information in the stock assessments for this species.

Small Coastal Sharks

    Comment 1: NMFS received several comments on the SCS commercial 
quota including that the lower cap on SCS harvest is good, that NMFS 
should set the SCS quota lower than 1997 landings and not higher, that 
the 10 percent cap was arbitrary and the SCS stocks are declining, that 
NMFS should cap the SCS quota at 1997 levels and not 10 percent above, 
and that NMFS should keep the status quo for the SCS quota, at least 
until limited access is in place.
    Response: A cap on the SCS quota at 10 percent above 1997 levels 
will prevent large expansions in the SCS fishery while minimizing 
social and economic impacts from other shark management measures 
pending additional assessment of SCS stock status. NMFS acknowledges 
that the loss of opportunity for substantial fishery expansion may have 
negative social and economic impacts. NMFS notes that the best 
available data on SCS indicate that catch rates for Atlantic sharpnose 
sharks, the dominant species in this management group, are not 
declining. Regarding the comment to cap the SCS at 1997 levels, not 10 
percent above, NMFS notes that this measure is precautionary and that 
1998 fishing levels may have increased (1998 landings data are not yet 
available). A commercial quota cap 10 percent above 1997 levels will 
minimize negative social and economic impacts if 1998 harvest levels 
exceeded 1997 levels. NMFS disagrees that status quo for the SCS quota 
is appropriate because the current quota is based on MSY levels from 
the assessment that supported the original shark FMP. Concerns have 
been raised by members of the HMS AP and members of the public that the 
assessment in the original shark FMP was overly optimistic in its 
estimation of SCS intrinsic rates of increase and the subsequent levels 
of fishing mortality that this group can withstand. The final action to 
cap the SCS quota is selected because of these concerns, because 
commercial fishery landings statistics may substantially underestimate 
fishing mortality due to the use of SCS as bait that are not reported 
as landings, and because it eliminates the potential for excessive 
growth.
    Comment 2: NMFS should require species-specific reporting of all 
SCS catches, landings, and disposition of the catch to determine the 
extent and impacts of SCS being used for bait.
    Response: NMFS agrees that additional reporting and observer 
coverage may be necessary to determine the magnitude of ``cryptic 
mortality'' of SCS due to the use of SCS as bait. Charter/headboat 
logbooks and voluntary observers will help collect data on this issue 
in recreational fisheries. NMFS may consider additional management 
measures to address this issue.

Pelagic Sharks

    Comment 1: NMFS should keep the status quo for the pelagic shark 
quota because NMFS should not implement any precautionary caps or get 
out in front of international management, which will disadvantage any 
future U.S. allocation and/or influence.
    Response: NMFS believes that precautionary measures for pelagic 
sharks are warranted due to concerns regarding the sustainability of 
current fishing mortality rates and the potential for increased fishing 
effort on those species known to have limited capacity to withstand 
fishing pressure (e.g., porbeagle sharks). The final actions to 
establish a species-specific quota for porbeagle sharks at 10 percent 
higher than recent landings, to reduce the pelagic shark quota by the 
porbeagle quota, to establish a quota for blue sharks, and to reduce 
the pelagic shark quota by any overage of the blue shark quota, are 
primarily precautionary and do not substantially alter the status quo 
for pelagic sharks. Breaking out the porbeagle quota does not reduce 
overall harvest levels for pelagic sharks and the pelagic shark quota 
will only be reduced if blue shark landings and dead discards exceed 
273 mt dw. Since the majority of blue sharks are released alive and 
anecdotal evidence indicates that many of the blue sharks released dead 
could be released alive if fishing practices were altered slightly, 
NMFS believes that the incentive to maximize blue shark survival may 
result in the blue shark quota not being exceeded and the pelagic shark 
quota not being reduced. Therefore, these final actions may not 
substantially alter the status quo but would still establish mechanisms 
to address fishing mortality rate and bycatch and bycatch mortality 
concerns in the future. Regarding comments that the United States is 
getting ahead of international management and disadvantaging U.S. 
fishermen, NMFS believes that precautionary steps are appropriate even 
in the absence of international management because preventing 
overfishing will help ensure that U.S. fishermen are not disadvantaged 
due to stock declines. Additionally, by taking initiatives for 
conservation measures, NMFS will have a stronger position at the 
international table when discussing rebuilding and

[[Page 29113]]

maintaining shark stocks subject to international fishing.
    Comment 2: NMFS received several comments on the proposed porbeagle 
quota including that NMFS should cap the porbeagle quota at the highest 
landings and not at 10 percent above, and that NMFS should establish a 
porbeagle quota but reduce it from recent landings to allow rebuilding.
    Response: NMFS disagrees. Similar to the rationale for a commercial 
quota cap for SCS at 10 percent above 1997 levels (the year of highest 
recorded landings), capping the porbeagle quota at 10 percent above the 
highest landings level will prevent large expansions in the porbeagle 
fishery while minimizing social and economic impacts pending additional 
assessment of porbeagle stock status. NMFS acknowledges that the loss 
of opportunity for substantial fishery expansion may have negative 
social and economic impacts. Additionally, NMFS notes that porbeagle 
sharks, as part of the pelagic shark management group, are considered 
fully fished and that this measure is precautionary and 1998 fishing 
levels may have increased (1998 landings data are not yet available).
    Comment 3: NMFS' data on porbeagle sharks are incomplete and 
substantially underestimate landings.
    Response: NMFS has updated the reported landings of porbeagle 
sharks since the proposed rule, and adjusted the porbeagle quota in the 
final rule, to establish the porbeagle shark quota at 92 mt dw. NMFS 
intends to investigate further porbeagle shark landings statistics and 
may adjust the quota in the future as the data warrant.
    Comment 4: Establishment of a species-specific quota for porbeagle 
sharks will create a porbeagle derby.
    Response: NMFS disagrees. The selected porbeagle shark quota is 10 
percent higher than the highest reported landings such that a derby 
fishery resulting from restrictive quotas is not expected to develop. 
Nevertheless, given other restrictions on shark fishing, there may be 
increased fishing pressure on porbeagle sharks, and if so, NMFS will 
address this in the future.
    Comment 5: NMFS' approach in establishing precautionary quotas is 
inconsistent because the porbeagle and SCS quotas are 10 percent higher 
than highest landings and the blue shark dead discard quota is the 
average of 10 years. NMFS should establish a 500 mt quota on blue shark 
landings with a 273 mt dw dead discard cap, and a 250 mt dw quota for 
porbeagle sharks with 30 mt dw allocated for incidental catches.
    Response: NMFS did take different approaches in establishing the 
precautionary quotas for porbeagle and SCS and for the proposed blue 
shark dead discard quota due to the differences in the fisheries. For 
porbeagle and SCS, NMFS proposed and implements quotas that are 10 
percent higher than the highest reported landings because the intention 
of these measures is to prevent excessive fishery expansion pending 
additional stock assessments. Therefore, NMFS believes that essentially 
capping effort is appropriate at this time. On the other hand, the 
proposed blue shark dead discard quota was intended to create an 
incentive to maximize the survival of all blue sharks caught 
incidentally to other fishing operations while minimizing social and 
economic impacts and reducing regulatory discards, consistent with the 
proposal to count dead discards against quotas. In this case, estimates 
of blue shark dead discards have ranged from approximately 20 to 98 
percent of the pelagic shark quota and establishing a dead discard 
quota 10 percent higher than the highest year's discards would be 
ineffective in maximizing blue shark survival. Therefore, NMFS proposed 
to establish a blue shark dead discard quota equivalent to the average 
of the last 10 years dead discards as a means to create an effective 
incentive to maximize blue shark survival since the potential for 
pelagic shark quota reductions due to excessive blue shark dead 
discards was real. Note that NMFS' final action regarding blue sharks 
is different than that proposed.
    NMFS believes that separate quotas for blue and porbeagle sharks 
are appropriate but believes that quotas of 773 mt dw and 280 mt dw for 
blue and porbeagle sharks, respectively, are too high, pending 
additional stock assessments. NMFS selected 273 mt dw and 92 mt dw for 
blue and porbeagle sharks, respectively, based on the average of recent 
dead discards for blue sharks and updated data for porbeagle sharks.
    Comment 6: NMFS received numerous comments on the proposed dead 
discard quota for blue sharks including that dead discards of blue 
sharks should be placed under the pelagic shark quota, that the pelagic 
shark quota should not be increased to allow for dead discards of blue 
sharks, that a ``dead discard quota'' goes against the mandates of the 
Magnuson-Stevens Act and NS 9 to reduce and/or eliminate bycatch and 
bycatch mortality, that NMFS should encourage full utilization of 
unavoidable mortality and not require discards, that most blue sharks 
are released alive anyway, and that NMFS should establish a quota for 
landings and dead discards of blue sharks to reduce data degradation 
and underreporting.
    Response: NMFS establishes a quota for blue sharks of 273 mt dw 
with any overharvests to come off the pelagic shark quota, in part to 
create an incentive to reduce blue shark discards, especially dead 
discards. If NMFS were to take all blue shark dead discards off the 
pelagic shark quota, the magnitude of reductions in the pelagic shark 
quota might result in a ``vicious cycle'' in which the entire pelagic 
shark quota would become regulatory discards, contrary to NS 9. Because 
blue sharks are caught incidentally in fisheries targeting other 
species, blue sharks will continue to be caught and some discarded 
dead. By creating an incentive to reduce blue shark dead discards, this 
action may result in changes in fishing practices that increase blue 
shark survival rates. NMFS acknowledges that establishing a quota for 
blue sharks of 273 mt dw may be interpreted as increasing the pelagic 
shark quota; however, NMFS notes that the pelagic shark quota 
established in the original shark FMP was based on landings of pelagic 
sharks from 1986-1991 and that blue sharks landings have ranged from 1-
5 mt dw, such that the original pelagic shark quota did not account for 
blue shark catches and discards.
    Comment 7: NMFS should require all live blue sharks be released 
with a dehooking device.
    Response: NMFS currently requires that all sharks not retained be 
released in manner that ensures the maximum probability of survival. 
Further, NMFS intends to encourage use of dehooking devices as part of 
its outreach and education efforts.
    Comment 8: Prohibiting possession of blue sharks in recreational 
fisheries but allowing commercial fisheries to kill 273 mt dw violates 
NS 4 and section 304(g) of the Magnuson-Stevens Act.
    Response: NMFS agrees that the proposals to prohibit possession of 
blue sharks in both commercial and recreational fisheries and establish 
a blue shark dead discard quota may have resulted in perceived 
inequities among user groups. NMFS proposed the prohibition on 
possession for all fisheries because of concerns that blue sharks could 
quickly become overfished if directed markets or fisheries developed 
for them. NMFS proposed to establish a dead discard quota for blue 
sharks because, in combination with the alternative to count dead 
discards against quotas, dead discards of blue sharks alone could 
reduce the entire pelagic shark quota to regulatory discards, contrary 
to NS 9. However, in

[[Page 29114]]

part due to comments received during the public comment period, NMFS 
has reconsidered the alternatives for blue sharks and has determined 
that the combination of withdrawing the proposal to prohibit possession 
of blue sharks (i.e., allowing retention), establishing a quota of 273 
mt dw for blue sharks against which commercial landings and dead 
discards would be counted, and reducing the recreational retention 
limit for all sharks with the addition of a minimum size will meet the 
conservation objectives of preventing overfishing, establish mechanisms 
to implement management measures consistent with the precautionary 
approach, reduce regulatory waste and discards consistent with NS 9, 
and promote fair and equitable allocation of resources among user 
groups consistent with NS 4 and section 304(g) of the Magnuson-Stevens 
Act.
    Comment 9: NMFS should not establish species-specific quotas for 
species of concern but should use target catch requirements to control 
expansions of landings of incidental catches.
    Response: NMFS disagrees that species-specific quotas are 
inappropriate tools to control fishery expansions but may consider 
target catch requirements in the future.

Shark Recreational Fishery

    Comment 1: NMFS received considerable comments on the proposal to 
establish catch and release fishing only for all LCS and SCS, including 
that NMFS should stop all shark harvest in both commercial and 
recreational fisheries if the recreational fishery must be closed, that 
the numbers in recreational and commercial shark fisheries do not 
support a zero bag limit for recreational shark fisheries while still 
allowing commercial harvest, that NMFS should not reward fishermen who 
did the damage and penalize historic recreational fishermen, that the 
recreational bag limits for sharks unfairly impact recreational 
fishermen and are discriminatory against recreational fishermen, which 
violates NS 4 and section 304(g), and that recreational fishermen are 
bearing the brunt of shark conservation.
    Response: NMFS proposed catch and release only fishing for all LCS 
and SCS due to the reductions in recreational harvest needed for LCS 
under the rebuilding program (about 80 percent), the fact that post-
release mortality of sharks in recreational fisheries is unknown, and 
the continued widespread misidentification of juvenile LCS as SCS. 
However, in part due to comments received, NMFS has reconsidered the 
combination of actions analyzed for recreational retention limits and 
has determined that a recreational retention limit of one shark per 
vessel per trip with a 4.5 ft (137 cm) minimum size, and an allowance 
of one Atlantic sharpnose shark per person per trip (no minimum size) 
should meet NS 1 to rebuild overfished fisheries for LCS and address 
the difficulties in enforcement and continued widespread 
misidentification of juvenile LCS and SCS. NMFS believes that the final 
action provides access fairly and equitably to recreational fishermen 
(in all geographic regions) and commercial fishermen, consistent with 
conservation goals and NS 4. Regarding comments that recreational 
fishermen are bearing the brunt of shark conservation, NMFS notes that 
numerous final actions will establish substantial additional 
restrictions and negatively impact commercial fishing sectors.
    Comment 2: NMFS received considerable comments regarding 
recreational retention limits and minimum sizes, ranging from support 
for the status quo of 2 sharks per trip with an allowance for 2 
Atlantic sharpnose sharks per person per trip, 2 sharks per day, 1 
pelagic shark per vessel per day regardless of species, 1 LCS per 
vessel per day, 1 mako shark per angler, 1 shark per vessel per trip 
and 1 Atlantic sharpnose per person per trip, 1 LCS and 1 pelagic shark 
per trip with a 4.5 ft (137 cm) minimum size, 2 SCS per trip and 2 
Atlantic sharpnose per trip, 1 shark per person with a maximum of 2 
sharks per vessel like the Florida regulations, 2 sharks per trip but 
no more than one shark of any species, 2 sharks per person per day for 
all species, no limits on retention for blue sharks, as well as 4.5 ft 
(137 cm), 6 ft (182 cm), and 300 pound (136 kg) minimum sizes for all 
sharks.
    Response: In part due to public comments received, NMFS has 
reconsidered the proposed recreational shark fishing restrictions and 
has determined that a recreational retention limit of 1 shark per 
vessel per trip with a minimum size of 4.5 feet (137 cm) FL and 1 
Atlantic sharpnose shark per person per trip (no minimum size) will 
reduce recreational harvests by the approximately 80 percent necessary 
to rebuild LCS and prevent overfishing of pelagic and SCS, while also 
minimizing social and economic impacts.
    Comment 3: NMFS should not implement a zero recreational limit for 
sharks and the proposed recreational limits do not provide access to 
comparable substitute species for the southeast. Anglers in the 
Southeast Atlantic do not target pelagic sharks but target SCS. Pelagic 
sharks are an unusual catch because they occur too far offshore (about 
80 miles to Gulf Stream) and small open boats can't go that far, which 
may violate NS 10. A lot of anglers cannot safely reach shortfin mako, 
oceanic whitetip, and threshers. The proposed recreational limits are 
biased toward the known NE shark fishery, contrary to NS 4.
    Response: NMFS agrees that the proposed alternative may have 
differentially impacted anglers by region in that pelagic sharks are 
more northern in their distribution, and nearshore anglers who could 
not expand their fishing into offshore waters where pelagic sharks 
predominate. In part due to these comments, NMFS has reconsidered the 
combination of actions analyzed for recreational retention limits and 
has determined that a recreational retention limit of one shark per 
vessel per trip with a 4.5 ft (137 cm) minimum size and an allowance of 
one Atlantic sharpnose shark per person per trip (no minimum size) 
should meet NS 1 to rebuild overfished fisheries for LCS and prevent 
overfishing for the fully fished pelagic and SCS. The final action will 
also address the difficulties in enforcement and continued widespread 
misidentification of juvenile LCS and SCS by essentially establishing 
catch and release fishing only for juvenile LCS under the selected 
minimum size and by allowing retention of Atlantic sharpnose sharks, a 
SCS species easily identified by white spots on the dorsal side. As 
many SCS do not reach the selected minimum size, the final action also 
essentially establishes catch and release only fishing for SCS, except 
for Atlantic sharpnose. NMFS believes that the final action will 
provide access to the recreational fishery for anglers in the southeast 
and Gulf of Mexico regions, consistent with conservation goals and NS 
4. NMFS also believes that the final action will provide access to 
nearshore anglers by allowing retention of species available in these 
areas, consistent with conservation goals and NS 10.
    Comment 4: NMFS received several comments on allocation of shark 
harvest including that NMFS should restore sharks to historic 98 
percent recreational catch, that NMFS should allocate shark harvest for 
recreational fisherman based upon the average landings occurring during 
the past 3 years (1995-97), that the total allowable take of sharks 
should not be increased so the commercial allocation should be 
diminished by an amount equal to the recreational allocation, that NMFS 
should allocate shark harvest for recreational fishermen based on the 
last

[[Page 29115]]

18 years of landings by number, which will equal about two-thirds of 
the allowable harvest, and that NMFS should not base management and 
rebuilding on a single year but should base allocation on a 10-15 year 
time period.
    Response: NMFS believes that the LCS rebuilding program, with 
commercial and recreational harvest levels determined by recent harvest 
as reduced by rebuilding program measures (described in the HMS FMP and 
based on the 1998 SEW), is appropriate and will meet NS 1 to rebuild 
the overfished LCS and prevent overfishing of pelagic and SCS. NMFS 
believes that allocating 98 percent of shark harvests to recreational 
fisheries would not account for traditional fishing patterns, would not 
be fair and equitable, and would not provide for the sustained 
participation of communities associated with commercial fisheries. 
Regarding the time period on which management and rebuilding should be 
based, NMFS believes that the final action, which uses 1995 as a 
reference point for rebuilding, is appropriate. NMFS reduced the quotas 
and retention limits based on the 1996 stock assessment, consistent 
with the allocations established in the 1993 Shark FMP which were based 
on several years of data. The rebuilding program established in the HMS 
FMP builds on the 1996 assessment and 1997 quota and retention limit 
reductions. In establishing the rebuilding program, NMFS analyzed the 
effectiveness of the 1997 reductions and any additional reductions 
necessary to rebuild LCS consistent with the Magnuson-Stevens Act. 
Therefore, the allocations of shark harvest in the HMS FMP are 
appropriate and reasonable. Regarding the allocation of shark harvest 
between recreational and commercial sectors, the final actions in the 
HMS FMP will provide access fairly and equitably to both sectors, 
consistent with conservation goals.
    Comment 5: NMFS received several comments on the proposal to 
require all sharks landed by recreational anglers to have the heads, 
fins, and tails attached, including support for the proposal, that NMFS 
should require anglers keep the heads and fins onboard but should not 
require the fish to kept whole because of problems with seafood safety 
from inadequate freezing, that NMFS should allow anglers to fillet 
sharks at sea as long as the tails and claspers are retained, and that 
the requirement for recreational fishermen only is unfair and should be 
applied to both recreational and commercial fishermen.
    Response: While these comments warrant further consideration, NMFS 
adopts the requirement for recreational fishermen to keep sharks intact 
while not imposing a new requirement for commercial fishermen at this 
time. When the Shark FMP was implemented in 1993, commercial fishermen 
were allowed to remove and discard heads, tails, and fins and to fillet 
the sharks at sea to allow more of the available vessel hold capacity 
to be used for storing the shark carcasses that eventually would be 
sold. A prohibition on filleting sharks at sea for commercial fishermen 
was implemented in 1997 in order to improve species-specific 
identification of carcasses at the dock. The basis for this provision 
may have changed, but additional public discussion is needed before the 
regulations are modified. While NMFS strives for consistent regulations 
for all user groups, concerns about quality and safety of seafood sold 
for public consumption resulting from inadequate freezing of shark 
carcasses preclude a similar regulation for commercial shark fisheries 
at this time. Because individual recreational shark fishermen harvest 
smaller quantities of sharks per trip and take shorter fishing trips 
relative to commercial operations, recreational fishermen should be 
able to adequately ice shark carcasses so as not to compromise seafood 
safety. Requiring recreational fishermen to keep sharks intact will 
address continued widespread problems with species-specific 
identification of sharks in recreational fisheries, decrease 
enforcement costs, and facilitate species-specific assessments and 
management.
    Comment 6: NMFS has repeatedly ignored requests to implement 
conservation measures for mako sharks and NMFS should fully protect 
shortfin makos because their stocks are down.
    Response: NMFS is aware that anecdotal evidence regarding catches 
and catch rates of shortfin mako sharks indicates that the stock size 
may be declining. Accordingly, the United States will be participating 
in the ICCAT SCRS meeting to assess catch rates of pelagic sharks in 
May 1999. Pending the outcome of that meeting and other assessments of 
shortfin mako stock size, NMFS believes that the final action to reduce 
the recreational retention limit to one shark per vessel per trip with 
a 4.5 ft (137 cm) minimum size will provide additional protection for 
this species. NMFS may consider additional management measures, 
including alternative length or weight based minimum sizes or 
prohibitions on possession, in the future as necessary.
    Comment 7: NMFS should consider a 250-300 lb (113-136 kg) minimum 
size for blue sharks.
    Response: Additional management measures for blue sharks, including 
a species-specific minimum size, may be warranted and NMFS may consider 
such a measure in the future.
    Comment 8: NMFS should reduce the Atlantic sharpnose retention 
limit pending additional stock assessments.
    Response: NMFS agrees.
    Comment 9: NMFS should encourage voluntary release of sharks.
    Response: NMFS agrees. NMFS supports all voluntary release of 
sharks and intends to develop a public education and outreach program 
that will encourage catch and release and tagging of all released 
sharks as part of the implementation of this HMS FMP.
    Comment 10: NMFS should restrict all recreational fishing to catch 
and release only during the spring pupping seasons.
    Response: The final action to establish a recreational retention 
limit of one shark with a 4.5 ft (137 cm) minimum size is expected to 
meet NS 1 to rebuild overfished fisheries for LCS, as the minimum size 
will more effectively address the issue of bycatch of juvenile sharks 
by affording them protection at all times and areas.
    Comment 11: NMFS should reduce the LCS recreational retention 
limits but allow recreational fishermen to continue to target blacktip 
and spinner sharks.
    Response: The final action allows recreational fishermen to target 
all but the prohibited species of sharks subject to the retention limit 
of one shark per vessel per trip and the 4.5 ft (137 cm) FL minimum 
size.
    Comment 12: NMFS should not allow more than 2 hooks per line.
    Response: Modifications in fishing practices, including limits on 
the number of hooks per line, may reduce mortality of released fish. 
NMFS may consider such management measures in the future through the 
framework provisions.
    Comment 13: NMFS should consider male harvest only to protect 
mature females. It is easy to tell male from female sharks.
    Response: NMFS agrees that male only harvest is a potential 
management measure that could protect mature females and could be 
enforced if the male claspers were intact. NMFS may consider additional 
management measures, including male only harvest, if the final 
recreational retention limits and restrictions on possession at sea and 
landing actions do not meet NS 1 to rebuild overfished fisheries for 
LCS, prevent overfishing for the fully fished

[[Page 29116]]

pelagic and SCS, and address the difficulties in enforcement and 
continued widespread misidentification of juvenile LCS and SCS as 
expected.

General Comments on Bycatch Reduction

    Comment 1: NMFS' plan is not consistent with NS 9 to minimize 
bycatch and bycatch mortality, to the extent practicable.
    Response: NMFS disagrees. Numerous measures in the HMS FMP and 
Billfish Amendment improve NMFS' ability to monitor, control, and 
account for bycatch in estimates of total mortality. NMFS is pursuing 
gear modifications to reduce bycatch and a time/area closure to reduce 
BFT discards. NMFS is also reducing quotas in directed fisheries, 
implementing limited access, and planning educational workshops to 
minimize bycatch mortality. Further, NMFS seeks to count dead discards 
against the quota, which will create an incentive for fishermen to 
avoid bycatch species, to the extent that they can. Also, NMFS is 
developing larger time/area closures in order to protect small 
swordfish and other bycatch and will present these ongoing analyses to 
the HMS and Billfish Advisory Panels in June 1999, before publishing a 
proposed rule in Summer 1999. NMFS has increased reporting requirements 
in order to collect additional data on bycatch mortality in HMS 
fisheries. The effectiveness of the bycatch reduction strategy will be 
assessed annually in the SAFE report and necessary modifications can be 
made through the framework.
    Comment 2: Commercial fishermen should have to retain all fish that 
are dead when handled. This would be counted against their retention 
limit or quota.
    Response: NMFS adopted minimum size limits for yellowfin, bluefin, 
and bigeye tunas, and swordfish, and ridgeback large coastal sharks in 
order to discourage fishermen from targeting small fish. NMFS intends 
that ultimately all dead discards of each species will be counted 
against any quotas that may apply.
    Comment 3: Bycatch and bycatch mortality in the recreational 
fishery could never be analyzed and could never be truly known and 
therefore should not be addressed in this FMP.
    Response: NMFS disagrees. NMFS has identified the examination of 
post-release mortality in all hook and line fisheries, recreational and 
commercial, as a research priority. Further, NMFS subscribes to the 
precautionary approach and intends, once it can be quantified, to 
account for post-release mortality in all HMS fisheries.
    Comment 4: Many different comments were submitted regarding 
workshops and other outreach to fishermen: NMFS should require 
mandatory attendance of permit holders at vessel education workshops to 
inform fishery participants of bycatch and bycatch mortality reduction 
techniques. NMFS has already begun the workshops even though no take 
reduction plan is in place. If fishermen have to attend workshops, they 
should be compensated for a missed day of work. Fishermen at the 
workshops know more about releasing fish, turtles, and mammals than the 
people presenting the workshop. NMFS should use television fishing 
shows to promote the bycatch mortality reduction strategy for HMS.
    Response: NMFS thinks that outreach may be more useful if the 
program is voluntary. This will allow NMFS to offer workshops as well 
as informal meetings with fishermen to share recent information on 
bycatch reduction strategies and new techniques that may be working in 
other fisheries and to get feedback from fishermen. NMFS has begun the 
workshops with several objectives in mind; marine mammal bycatch 
reduction is only one of those objectives. Other reasons for the 
workshops have included collection of views on comprehensive management 
systems for pelagic longline fishery management. NMFS agrees that 
fishermen have considerable expertise in releasing large animals at 
sea. However, the presenters at the workshops will also be providing 
information on successful methods used in other longline fisheries 
(e.g., the Pacific swordfish fishery) and can convey information about 
new research results which may help fishermen avoid bycatch species. 
NMFS appreciates the suggestion of using television and will consider 
that medium in the future for developing and distributing information 
about reducing bycatch and bycatch mortality.
    Comment 5: NMFS should establish a target and timetable for 
reducing bycatch (e.g., 25-75 percent reduction in 5 years) and 
implement that bycatch plan through time/area closures, gear 
restrictions and counting dead discards against quota.
    Response: This FMP implements a number of measures designed to 
reduce bycatch and bycatch mortality, including gear modification, 
quota reductions, a time/area closure, and educational outreach 
programs, as noted above. Limited access to some of the HMS fisheries 
may also change the nature of these fisheries. NMFS will evaluate 
bycatch rates once limited access and these bycatch measures, and an 
upcoming proposed time/area closure to protect swordfish are 
implemented in these fisheries before setting targets and timetables 
that could otherwise be unrealistic.
     Comment 6: Take reduction measures designed to reduce marine 
mammal bycatch should not be implemented in this plan under the 
authority of the Magnuson-Stevens Act. A future take reduction team for 
pilot whales would likely include representatives from the trawl and 
pelagic longline fisheries. Because the HMS Division does not cover the 
trawl fishery and if changes are needed in regulations, it will be 
easier to make those changes under the MMPA than to amend multiple 
fishery management plans.
    Response: NMFS disagrees. NMFS needs to consider cumulative impacts 
of all regulatory measures on fishermen and the ecosystem as required 
under legislative mandate. Therefore, it is very useful to consider the 
take reduction measures in the context of other measures in this plan. 
Some take reduction measure can be amended by framework measure (e.g., 
gear modifications, time/area closures), instead of an amendment to the 
plan. Measures that apply to other Federal fisheries, including the 
squid, mackerel, and butterfish trawl fishery can also be implemented 
by the appropriate fishery management plan if NMFS sees fit. NMFS seeks 
to conserve marine resources in an ecosystem approach, including all 
bycatch species.
    Comment 7: Strategies proposed by the Atlantic Offshore Cetacean 
Take Reduction Team (AOCTRT) more than 2 years ago are outdated and 
ineffective. Rather than publish a plan at this late date, NMFS should 
reconvene a new team, including other representatives from other 
fisheries that interact with the same marine mammal stocks.
    Response: In this action, NMFS will implement several of the 
measures recommended by the AOCTRT to reduce incidental mortalities and 
serious injuries of pilot whales in the pelagic longline fishery. NMFS 
intends to reconvene the AOCTRT to review updated information regarding 
pilot whales, and to solicit updated recommendations for the pelagic 
longline fishery. At that time, recommendations to include other 
fisheries in the take reduction process will be considered.
    Comment 8: AOCTRT measures are unfair. Whales have changed their 
feeding behavior in response to the number of longlines in the water. 
They now teach their young to take advantage of the fish on the 
longline.

[[Page 29117]]

    Response: If the take reduction team is reconvened, the team might 
consider available information from fishermen on this feeding behavior. 
In the interim, fishermen should do all that they can to reduce 
interactions with whales.
    Comment 9: Instead of restricting fishermen, who take relatively 
few whales, NMFS should shut down shipping and control the actions of 
the U.S. Navy to reduce interactions with large whales.
    Response: NMFS is also concerned about adverse effects to whales 
caused by the shipping industry and ship operations of other federal 
agencies, including the U.S. Navy. NMFS has taken a number of actions 
to reduce the likelihood of ship strikes. NMFS collaborates with the 
U.S. Coast Guard, U.S. Navy, Army Corps of Engineers, as well as state 
agencies and other organizations to alert ship traffic in U.S. coastal 
waters to the presence of whales. Additionally, NMFS is required to 
provide biological opinions on activities of federal agencies that 
might adversely affect endangered species. Other actions include: 
regulations that prohibit all approaches within 500 yards (459 m) of 
any right whale; work toward the development of cooperative agreements 
with individual shipping companies to examine voluntary measures ships 
might take to reduce the possibility of ship strikes; and beginning 
July 1999, a mandatory right whale ship reporting system that will 
provide information on right whales directly to mariners as they enter 
right whale habitat and use incoming reports to assist in identifying 
measures to reduce future ship strikes.
    Comment 10: NMFS chooses a definition of bycatch that is not 
consistent with the Magnuson-Stevens Act. Specifically, NMFS defines 
fish that are caught and released by recreational fishermen as bycatch.
    Response: NMFS' definition is consistent with the Magnuson-Stevens 
Act. However, as described in the Billfish Amendment, NMFS does not 
consider released live billfish to be bycatch because the Amendment 
establishes a catch and release program for billfish released in the 
recreational fishery.
     Comment 11: Atlantic Billfish released alive by recreational 
fishermen should not be considered bycatch because bycatch is 
undesirable and should be eliminated or minimized according to NS 9, 
while the live release of billfish is an encouraged practice.
     Response: NMFS agrees. Recreational anglers have voluntarily 
reduced landings of Atlantic billfish since the 1988 Atlantic billfish 
FMP, becoming essentially a catch-and-release fishery. NMFS realizes 
that live release of billfish is a beneficial practice and believes 
that establishing a catch-and-release fishery management program will 
further foster the already existing catch-and-release practices of 
recreational billfish fishermen. As a result of the establishment of 
this Program, all Atlantic billfish that are released alive, regardless 
of size, are not considered as bycatch, within the constraints of the 
Magnuson-Stevens Act and the NSGs. This decision is consistent with NS 
9, the eleventh objective of this FMP amendment, and the 1997 ICCAT 
recommendation to promote the voluntary release of Atlantic blue and 
white marlin. It is also important to note that mortalities associated 
with all catch-and-release events must still be quantified, with 
results included in assessment of the stocks.
    Comment 12: The draft FMP amendment fails to reduce the most 
obvious cause of billfish mortality, which is pelagic longline fishing. 
NMFS should ban the use of pelagic longline gear inside the U.S. EEZ to 
eliminate billfish bycatch, and the United States should work through 
ICCAT to ban the use of this gear throughout the Atlantic Ocean.
     Response: NMFS disagrees. Following precedents set in other 
fisheries, the final FMP amendment indicates that billfish bycatch in 
the pelagic longline fishery is managed by the HMS FMP because the HMS 
fisheries are the target fisheries for that gear. The FMP amendment 
also identifies a final action to establish an Atlantic billfish 
bycatch reduction strategy, using six management measures implemented 
in the HMS FMP. This bycatch reduction plan takes a holistic approach 
in complying with NS 9 to reduce, to the extent practicable, all 
bycatch in the pelagic longline fishery. The effectiveness of the 
bycatch reduction measures will be evaluated annually as part of the 
Stock Assessment and Fishery Evaluation (SAFE) report for Atlantic 
billfish and HMS fisheries. An annual appraisal will include 
examination of current programs and research to see if Atlantic 
billfish bycatch can be reduced further, to the extent practicable. 
Further, banning all U.S. longline fishing in and of itself would not 
rebuild Atlantic billfish stocks. A much larger reduction in Atlantic-
wide landings would be necessary, as discussed under comment 1 in this 
section. A consequence of a ban of U.S. pelagic longline fishing would 
likely be an increase in foreign effort to fill the supply of tuna and 
swordfish historically provided by U.S. commercial fishermen, who are 
required to discard all billfish caught. Since foreign vessels retain 
billfish, an Atlantic-wide increase in billfish landings could be a 
direct result of increased foreign fishing activities. In addition, 
NMFS must comply with the Magnuson-Stevens Act, which specifies that 
NMFS must provide fishing vessels of the United States with a 
reasonable opportunity to harvest any allocation or quota of an ICCAT 
species agreed to by the United States.
     Comment 13: NMFS needs to examine gear modification as a mechanism 
to reduce billfish bycatch.
     Response: NMFS agrees. Gear modification is part of the billfish 
bycatch reduction strategy that is based on management tools available 
in the final HMS FMP. Additional research on the use of gear and gear 
configurations to specifically address minimizing bycatch and bycatch 
mortality is needed prior to implementation for the control of bycatch 
mortality. The HMS FMP will be the regulatory medium to implement gear 
modification measures, through the framework process, as new 
information becomes available.

Gear Modifications

    Comment 1: NMFS received numerous comments regarding gear 
modifications in the pelagic longline fishery to reduce bycatch 
mortality. These comments included support for: (1) reduced soak time, 
(2) limited length of mainline, (3) limited number of hooks, and (4) 
mandated circle hooks. Comments also indicated that some of these 
measures are difficult to enforce and therefore, should be voluntary 
measures.
    Response: NMFS and the AP considered many of these gear 
modifications in an earlier draft of the HMS FMP. NMFS rejected many of 
these alternatives in favor of voluntary measures and increased 
research on gear modifications.
    Comment 2: The proposed limit to the length of mainline is not 
likely to reduce bycatch mortality of mammals if the data indicate that 
many fishermen already have lines that short.
    Response: NMFS is implementing this measure to set an interim cap 
on the length of mainline until the take reduction team reassesses the 
need for other measures.
    Comment 3: The measure to require longline vessels to haul their 
gear in the order it was set should not be implemented.
    Response: NMFS agrees. This measure is difficult to enforce and 
observer data are not explicit about how the gear is set and hauled. If 
the take reduction team

[[Page 29118]]

meets again and continues to support this measure, NMFS can do a post-
trip interview with observers to get a better idea of how many vessels 
already do this. Also, NMFS remains concerned about potential safety 
implications for vessels as this measure may cause them to increase the 
amount of fuel they carry to accommodate for the extra transit time. 
Conversely, if vessels do not carry more fuel, this measure may have 
increased economic impacts as trips would have to be shortened.
    Comment 4: NMFS should not require the use of circle hooks in the 
recreational fishery; NMFS should require all recreational anglers to 
use circle hooks.
    Response: Further research is required on the impacts of circle 
hooks relative to hook-up rates, post-release mortality, and hook 
design before the use of circle hooks should be required for the 
fishery. NMFS is interested in exploring gear modifications that reduce 
bycatch mortality and is currently funding research on the use of 
circle hooks vs. ``J-hooks'' in the pelagic longline fishery. The HMS 
and Billfish APs discussed the use of circle hooks at a meeting in July 
1998. Representatives of the recreational fishing community expressed 
their support for the use of circle hooks to reduce post-release 
mortality in non-trolling situations with the reservation that this 
alternative would be better implemented in a non-regulatory way. 
Outreach programs for anglers and commercial fishermen will address 
gear modifications, including circle hooks, that may reduce post-
release mortality. The results of ongoing research will be considered 
when available to address this comment in the future.
    Comment 5: NMFS should implement gear marking requirements. Another 
commenter indicated that gear marking requirements will have no effect 
on reducing bycatch or bycatch mortality of HMS.
    Response: This rule imposes gear marking requirements, because they 
will assist in enforcement of time/area closures and BFT catch limits, 
and could provide information on hooked marine mammals. Time/area 
closures and longline length restrictions are established to reduce 
bycatch. While vessel monitoring systems can alert enforcement agents 
to the presence of fishing gear in a closed area, agents need to 
approach the gear while it is drifting in the water in order to 
document a violation. Therefore, gear marking requirements will 
facilitate enforcement of HMS bycatch reduction measures.
    Comment 6: NMFS should require vessels to move after one 
entanglement with a protected species. Moving after one entanglement is 
unenforceable without mandatory observer coverage and therefore success 
will be difficult to measure. This measure will have no effect on 
reducing bycatch of HMS.
    Response: This rule requires fishermen to move after one 
entanglement. This measure was recommended by the Atlantic Offshore 
Cetacean Take Reduction Plan and responds to recent research results 
indicating the clustering of protected species (marine mammals and sea 
turtles). Some fishermen already move after one entanglement in order 
to protect their gear, avoid catching protected species, and fish more 
efficiently. For fishermen who do not currently do this, it may 
alleviate some of the problems associated with the capture of protected 
species and predation on their target species. NMFS agrees that this 
measure is not likely to reduce bycatch of HMS, however, it was not 
designed to do that. This measure may be difficult to enforce but NMFS 
received positive feedback at the July 1998 AP meeting that it would 
help to reduce bycatch by informing fishermen who do not usually follow 
this procedure.
    Comment 7: NMFS should require de-hooking devices on board all 
vessels. However, NMFS needs to define de-hooking devices and eliminate 
the use of ``crucifiers,'' a tool reportedly used to release a hook 
from a fish without having to handle the fish.
    Response: NMFS considered this alternative and rejected it due to 
the difficulty in enforcing it. NMFS is not able, at this time, to 
approve specific de-hooking devices, although the term ``dehooking 
device'' is defined in the final rule. However, NMFS encourages 
fishermen to use techniques that minimize injury to the fish and to 
work towards increasing survival of released individuals.

Time/Area Closures

    Comment 1: NMFS should close critical right whale habitat to 
pelagic longline and driftnet fisheries.
    Response: NMFS has prohibited the pelagic driftnet fishery for 
swordfish. Longline fishermen do not currently fish and are not 
expected to fish in these areas, therefore the only value of this 
closure would be to prevent expansion of effort into these areas which 
is unlikely. Parts of these areas are in state waters. For these 
reasons, NMFS does not close critical right whale habitat to pelagic 
longline fishermen. If there are fishery interactions with right whales 
in the future, NMFS may consider closing these areas to HMS fishermen 
who interact with this species.
    Comment 2: NMFS has received several comments on the proposed 
pelagic longline time/area closure off the mid-Atlantic and New England 
coasts, specifically with regard to bycatch and safety, including: 
Since there is little pelagic longline gear interaction with bluefin 
tuna in the southern portion of the proposed closed area, NMFS should 
move the southern boundary to 39 deg. N to provide additional fishing 
opportunities and minimize safety concerns while still significantly 
reducing dead discards; NMFS should, in accordance with NS 9, achieve 
reduction in dead discards by changing the longline target catch 
requirements; the United States has failed to comply with ICCAT 
recommendations to develop bluefin tuna discard reduction measures; 
NMFS should analyze and implement additional restrictions, such as 
number of hooks used, soak time, and other time/area closures in 
conjunction with the proposed time/area closure, in order to minimize 
bycatch; NMFS should allow longline fishermen to fish with other 
allowed gears in an area closed to pelagic longline gear without having 
to physically remove their pelagic longline spool from the vessel. NMFS 
also received comment that participants of each category should be 
responsible for minimizing discards and, if a category is successful in 
doing so, should receive any resulting catch quota benefit. There were 
also requests that NMFS better quantify the 60 percent decrease in 
discards associated with the proposed time/area closure.
    Response: In response to public comment regarding the southern 
boundary of the proposed closure area, NMFS reanalyzed the logbook data 
used for selection of the preferred alternative in the FMP addendum. 
These new analyses show that an equivalent reduction in discards can be 
achieved by closing a smaller area. Through this FMP, NMFS closes a 
1 deg. x 6 deg. block (21,600 square nautical miles), from 39 deg. to 
40 deg. N. and from 68 deg. to 74 deg. W., for the month of June, to 
pelagic longline gear. The modification of the closed area should 
mitigate some of the safety concerns. This smaller area also responds 
to concerns raised by pelagic longline fishermen during the comment 
period about the safety of small vessels crossing the Gulf Stream. NMFS 
does plan to continue to analyze the impacts of this revised time/area 
closure and to investigate the potential benefits of other measures. 
NMFS' analyses continue to indicate that there is no relationship 
between target catch and bluefin tuna interaction by pelagic

[[Page 29119]]

longline gear. NMFS will add any additions to the U.S. landings quota, 
resulting from unused discard allowance, to the total U.S. quota. NMFS 
allows fishermen to use fishing gear while a longline is on board 
provided the longline gear is secured.
    Comment 3: NMFS received numerous comments concerning the use of 
time/area closures for the pelagic longline fishery. A range of 
comments supported the proposed Florida Straits closure, other nursery 
areas such as Charleston Bump and areas in the Gulf of Mexico, rotating 
time/area closures, and a year round ban on longline fishing. Comments 
also opposed any time/area closure that would have unpredictable 
results due to redistributed effort. Specific to the proposed area in 
the Florida Straits, NMFS received many comments, including those of 
pelagic longline fishermen, that indicated that the proposed area is 
too small to have the desired conservation effect because fishermen 
will redistribute effort on the fringe of that closed area. Some 
commenters found the proposed closure discriminatory because it only 
targets vessels in a particular area.
    Response: In response to comments indicating the ineffectiveness of 
the Florida Straits closure, as well as updated analyses, NMFS defers 
the implementation of a time/area closure for protection of small 
swordfish and billfish until a later date. NMFS is committed to 
reducing bycatch of undersized swordfish and other bycatch. Areas being 
analyzed include areas between Charleston Bump south to Key West and 
areas in the Gulf of Mexico. NMFS has scheduled an advisory panel 
meeting on June 10 and 11, 1999, to discuss new analyses related to 
larger closed areas than that proposed in the draft FMP. Analyses will 
also be conducted with respect to redirected pelagic longline effort in 
other areas, and the effect on target species and bycatch. NMFS is 
aware of the social and economic impacts a closure may have on fishing 
communities and will consider those impacts when analyzing the 
alternatives. AP members and the public will have an opportunity to 
comment on the alternatives before NMFS publishes a proposed rule, by 
Summer 1999. NMFS agrees that rotating time/area closures could reduce 
bycatch mortality of undersized swordfish if NMFS could identify 
concentrations of undersized swordfish or bycatch finfish in real time.
    Comment 4: Implementation of a time/area closure requires 100 
percent coverage with a vessel monitoring system or 100 percent 
observer coverage.
    Response: NMFS agrees that VMS and 100 percent observer coverage 
are useful ways to enforce time/area closures. NMFS requires all 
pelagic longline vessels to carry an operating VMS, which is expected 
to reduce administrative costs of enforcing a time/area closure in 
comparison to observer coverage.
    Comment 5: NMFS should include all gears in a time/area closure and 
require VMS on all vessels. Another commenter indicated that having 
closures to all fishing gears is contrary to the objectives of a time/
area closure. The basis for establishing a time/area closure is to 
reduce bycatch mortality. The development of fair regulations does not 
imply the same regulations for all fishing sectors.
    Response: Regarding time/area closures, NMFS agrees that 
regulations do not have to be the same across all fishing sectors in 
order to be fair. Although no-fishing-zones might be appropriate if 
both the commercial and recreational fishing sectors had similar 
bycatch mortality impacts on a stock, that is not the case with bycatch 
mortality of bluefin tuna or swordfish.
    Comment 6: NMFS has failed to provide detail on the viability of 
establishing other closed areas to protect juvenile swordfish.
    Response: NMFS is continuing to conduct analyses on closed areas to 
protect small swordfish and will provide the necessary information on 
potential closed areas in the near future.
    Comment 7: NMFS received many comments, supporting or opposing the 
use of VMS in the pelagic longline fishery. Some commented that VMS 
presents a duplicate information collection (parallel to logbook data 
collection). Others commented that NMFS should provide the VMS to 
vessel owners because most operations do not have the finances for 
initial purchase of the units (VMS is economically devastating) and 
NMFS should pay for future upgrades to the VMS.
    Response: VMS is important to the enforcement of time/area 
closures. NMFS requires VMS for all pelagic longline vessels in this 
final rule because it provides near real-time and very accurate 
position reports which can be used to identify fishing activity in a 
closed area. This accuracy and timeliness of the information collection 
are not duplicative to the logbook program because current data in 
logbooks are not submitted immediately to NMFS. Other benefits of VMS, 
in addition to enforcement of closed areas, include safety, 
communication with shoreside contacts, increased access to weather data 
for fishermen, and the future potential for real-time catch and bycatch 
reporting from captains and observers. In an effort to minimize costs 
to fishermen, NMFS has relaxed proposed specifications in order to 
approve a lower cost unit. NMFS will not be providing VMS hardware or 
funding communications costs for fishermen in the pelagic longline 
fishery. NMFS will publish a Federal Register notice indicating 
approved VMS systems for the HMS pelagic longline fishery. Fishermen 
should work with VMS manufacturing and service companies to determine 
what other expenses they may accrue in the future. NMFS does not 
anticipate that any upgrades will be needed.
    Comment 8: Neither the draft FMP nor the proposed rule identified 
the VMS requirement as being subject to Paperwork Reduction Act 
requirements.
    Response: NMFS included the information collection burden 
information related to compliance with the proposed measure to require 
VMS in the proposed rule (64 FR 3154, January 20, 1999). The draft FMP 
did not provide information collection burdens for proposed measures.
    Comment 9: Currently, there is only one certified VMS vendor, which 
means there is no cost-controlling mechanism to protect users from 
monopoly action by the vendor.
    Response: NMFS disagrees. At the time the comment was submitted, 
there were no VMS units approved yet by NMFS for use in the pelagic 
longline fishery. INMARSAT-C had been required for a previous pilot 
program only. NMFS is in the process of approving VMS units and 
communication service providers. NMFS will publish a notice in the 
Federal Register after the approval process is completed. Fishermen 
should contact these companies to determine which unit best meets their 
needs. All of these units comply with NMFS' regulatory standards.

Time/area Closures to Protect Sharks

    Comment 1: NMFS received several comments on time/area closures 
including that NMFS should close important juvenile and subadult EFH 
areas (such as breeding and nursery areas) to commercial fishing at key 
times, that NMFS should close juvenile and subadult EFH year round to 
directed fishing and retention of shark bycatch, that NMFS should close 
juvenile and subadult shark EFH at least during the spring pupping 
season, and that NMFS should not implement any

[[Page 29120]]

time/area closures but should intensify cooperative efforts with states 
to protect habitat.
    Response: NMFS agrees that additional management measures for 
important juvenile and subadult EFH areas may be appropriate to 
facilitate rebuilding of LCS and prevent overfishing of pelagic and 
SCS. However, numerous final actions in the HMS FMP should meet 
conservation goals. Given the limited number of nursery and pupping 
areas in Federal waters, NMFS will continue to work with Atlantic and 
Gulf coastal states and regional fishery management councils and 
commissions to coordinate consistent and necessary regulations for 
sharks in state and Federal waters.
    Comment 2: NMFS should implement a time/area closure from January 1 
through March 15 between Diamond and Cape Lookout Shoals for one season 
and then assess its effectiveness in protecting juvenile and subadult 
sandbar and dusky sharks, reducing waste, and easing enforcement.
    Response: As stated in the HMS FMP, NMFS did consider a time/area 
closure for sandbar and dusky shark juvenile and subadult wintering EFH 
off Cape Hatteras, NC, which closely coincides with the area suggested. 
NMFS did not implement such a closure because the State of North 
Carolina's proclamation prohibiting commercial retention of all sharks 
is expected to eliminate the juvenile sandbar and dusky shark winter 
fishery, thereby addressing effectively the need to protect juveniles 
in this area. However, additional management measures may be necessary 
in the future and NMFS may consider time and/or area closures at that 
time.
    Comment 3: NMFS should close the juvenile and subadult wintering 
EFH off North Carolina to directed shark fishing and retention of all 
shark bycatch.
    Response: NMFS disagrees for the reasons stated above.
    Comment 4: Counting dead discards against quotas is not a 
substitute for reducing shark bycatch and NMFS should consider 
additional management measures to reduce bycatch and bycatch mortality 
of sharks.
    Response: NMFS agrees and does not intend this final action to 
substitute for other measures. Several final actions will affect 
bycatch and bycatch mortality rates of sharks in other HMS fisheries as 
well as bycatch and bycatch rates of other species in shark fisheries. 
NMFS is not implementing time/area closures of juvenile and subadult 
EFH because few areas are within NMFS' jurisdiction and because NMFS 
believes that the combination of final actions in the HMS FMP will 
reduce effective fishing mortality sufficiently to allow rebuilding. 
However, NMFS intends to continue working with regional councils, 
states, and commissions to address bycatch of sharks in other fisheries 
and to increase observer coverage in directed shark fisheries, 
particularly the southeast shark drift gillnet fishery, to determine 
bycatch and bycatch mortality of other species in shark fisheries. NMFS 
may consider additional management measures, including time/area 
closures, to reduce bycatch and bycatch mortality in shark fisheries 
and in other fisheries in the future.

Safety of Human Life at Sea

    Comment 1: A geographically narrow closure area, such as the 
proposed Florida Straits closure, may entice small vessels to over-
extend their range to fish along the fringes of the closed area, in 
order to avoid incurring costs of re-locating their home ports. Time/
area closures, in general, involve a safety risk as fishermen may 
travel farther from shore in order to fish.
    Response: NMFS recognizes the safety implications of time/area 
closures and seeks to minimize these risks to the extent practicable. 
However, NMFS reminds all vessel operators to maintain caution when 
undertaking all fishing activities. NMFS is implementing a VMS 
requirement, which may mitigate some of the safety risk. Further, NMFS 
is not finalizing the proposal to close the Florida Straits, but will 
continue analyzing closure boundaries to develop effective measures and 
to discourage re-distribution of effort around the fringes of the 
closed area.
    Comment 2: NMFS needs to work with the National Weather Service to 
increase the number of nearshore and offshore weather reporting buoys 
to support more accurate weather forecasting for fishermen.
    Response: NMFS will forward this comment to the National Weather 
Service.
    Comment 3: Restrictive ICCAT quotas encourage unsafe derby fishing 
conditions; individual transferable quotas (ITQs) may be a practical 
solution for some HMS fisheries.
    Response: Under the authority of the Magnuson-Stevens Act, NMFS may 
not implement ITQs until October 1, 2000. NMFS may consider ITQs for 
HMS fisheries after that time.
    Comment 4: Filling out logbooks within 24 hours of hauling a set 
may be dangerous because it takes away from the time fishermen would 
normally be getting rest or making repairs to equipment. Longline 
logbook requirements are far ahead of any other group and further 
measures are punitive.
    Response: NMFS has received comments indicating that there are 
practicality and safety issues associated with this proposed 
requirement, which was suggested for improved enforceability and 
accuracy. The operators indicate that they complete their own captain's 
books shortly following each set, and use these data when completing 
their logbooks. In response to concerns about safety at sea, the final 
action has been modified to require that logbooks be completed within 
48 hours of hauling a set and before offloading the fish. NMFS finds 
logbook data very useful and the ability to inspect up-to-date logbooks 
is a necessary action for enforcement agents.

Essential Fish Habitat

    Comment 1: It is good that NMFS realizes more research needs to be 
done regarding EFH. NMFS should avoid the temptation of rushing toward 
assumptions prior to the availability of scientific information 
throughout the entire range of Atlantic HMS.
     Response: NMFS agrees. The EFH portions of the FMP are based on an 
assessment of the currently available information from published and 
unpublished fishery-dependent and fishery-independent data (including 
tag-recapture information), compilations of information from 
international management bodies, commercial and recreational fishermen, 
fishery observer data and knowledge of recognized experts. The current 
descriptions and identifications of EFH for HMS meet the standards of 
the regulations. NMFS is committed to periodic review of the available 
information and will revise the EFH sections of the FMP when sufficient 
new information is available.
    Comment 2: NMFS should expand the assessment of EFH to include an 
evaluation of impacts of EFH by fisheries other than those targeted by 
the HMS fishermen.
    Response: NMFS agrees. At the time the FMP was prepared, spatial 
information on the distribution of various fisheries, HMS, other 
Federal or state fisheries was not accessible. This has been identified 
as a high priority project for NMFS.
    Comment 3: NMFS should designate sargassum as EFH for HMS and 
immediate regulatory action should be taken to protect sargassum from 
HMS fishing gears and practices, as well as other fishing and non-
fishing activities until a complete and thorough study of the impact of 
removing this EFH is studied and reviewed.

[[Page 29121]]

    Response: As a result of the input from the APs, sargassum has been 
identified as an important biological component and an integral part of 
EFH for many of the HMS. Although many HMS frequently co-occur with 
sargassum, the degree to which sargassum is utilized by HMS and its 
exact role relative to HMS production has not been clearly documented 
in the scientific literature and is a matter of current research. A 
phase-out of sargassum harvesting is currently proposed under the 
jurisdiction of the SAFMC.
    Comment 4: NMFS should consider monitoring plankton and seaweed as 
part of the rebuilding plans for HMS.
     Response: NMFS agrees that an ecosystem approach is important when 
managing, and particularly when rebuilding, fisheries. Essential Fish 
Habitat regulations require that NMFS and the Councils take an 
ecosystem approach in identifying and conserving habitats that are 
considered essential to managed fisheries.
    Comment 5: The HMS FMP and Billfish Amendment do not present a 
procedural framework for the process of review and mitigation of 
fishing and non-fishing threats to EFH.
    Response: In accordance with the EFH regulations, NMFS is 
establishing streamlined procedures to incorporate EFH concerns into 
existing environmental reviews. Consultations on actions that may 
adversely affect HMS or Billfish EFH will be conducted at the regional 
level, as appropriate.
    Comment 6: One comment offered specific changes to the broad 
descriptions of ecological threats associated with oil and gas 
production based on a more narrow range of industry activities.
    Response: The statements in the FMP regarding the ecological 
threats and conservation measures related to offshore oil and gas 
operations are meant to be broad and all-encompassing, and not site 
specific. Through the consultation process established under the EFH 
regulations, NMFS will consider the potential impacts on HMS EFH from 
proposed oil and gas activities, and any mitigating (e.g., regulatory) 
measures already in place, as well as their adequacy in protecting and 
conserving HMS EFH, on a case-by-case basis.
    Comment 7: The habitat section should be updated with more current 
information.
    Response: Recent publications were used in preparing the habitat 
section. Also, an effort was made to use publications that covered 
broad geographic areas in a similar, or consistent, manner so that 
throughout the various regions the same parameters could be described 
and compared. The habitat sections will be updated as new material 
becomes available through the SAFE Report and framework revisions, and 
EFH amendments to the FMP will be prepared if the information warrants.
    Comment 8: The draft amendment to the Billfish FMP lacks an in-
depth discussion of mitigating fishing impacts on EFH.
     Response: The EFH interim final rule requires that FMPs contain an 
assessment of adverse impacts from the fishing gears that are used in 
EFH and that Councils act to minimize adverse impacts to EFH to the 
extent practicable. Although limited in scope, the best available 
scientific information on the impacts of HMS fishing gears and 
practices to habitat is included and discussed in the Atlantic billfish 
FMP amendment and the HMS FMP. The lack of information is noted in the 
research and information needs section. As additional information 
becomes available it will be incorporated in future amendments.
    Comment 9: Due to the highly migratory nature of these species and 
NMFS' definition that ``Essential fish habitat means those waters and 
substrates necessary to fish for spawning, breeding, feeding, or growth 
to maturity'', nearly everywhere the fish can be found could be 
considered ``essential''. With many EFH areas outside the U.S. EEZ, the 
ability to implement any meaningful habitat protection specifically for 
Atlantic billfish is limited.
     Response: NMFS agrees that the ability to directly effect 
conservation of the habitats of billfish and other HMS may be somewhat 
limited because much of their range lies outside of US waters. The EFH 
regulations are clear that EFH can only be designated within the US 
EEZ, but they do allow for the identification of other important 
habitats outside the U.S. EEZ. The EFH regulations encourage NMFS to 
engage in consultations, through the appropriate channels, that can 
further the conservation and enhancement of the key habitats outside 
the control of the United States. When activities are identified that 
are degrading the habitat of billfish, consultations will be initiated 
through agencies such as the State Department or international fishery 
management bodies, e.g., ICCAT or FAO.

Permitting, Reporting, and Monitoring

    Comment 1: NMFS should require a recreational HMS vessel permit.
    Response: NMFS currently requires a permit for recreational tuna 
vessels, but not for private vessels fishing for sharks, swordfish or 
billfish. However, many of these private vessels participate in HMS 
tournaments, which are required to register with NMFS, and all charter 
boats are required to obtain a permit in order to fish for HMS. The 
social and economic costs of requiring an HMS permit for all 
recreational vessels exceed the benefits at this time. While 
recreational vessel permits, such as those for Atlantic tunas, can be 
useful in determining the universe of potential participants, in the 
case of billfish and swordfish, encounters are so rare relative to 
effort expended, a specific permit may not be applicable to this type 
of fishery. A recreational vessel permit, e.g., a permit for all HMS 
recreational fisheries, is included in the framework provisions for 
future consideration.
     Comment 2: NMFS should require the use of a landing tag for 
recreational HMS fisheries.
     Response: A pilot program implemented through state-federal 
cooperation has been in place for two years in North Carolina to test 
the use of tags for monitoring the recreational fishery for Atlantic 
bluefin tuna. Requiring fish to be tagged may be a feasible alternative 
that could help identify the universe of billfish and swordfish 
anglers, since anyone who might potentially land a billfish or 
swordfish would obtain a tag. Further research could shed light on the 
possibility of designing a viable mechanism can be implemented to 
identify specific user-groups. A universal HMS recreational landing tag 
program would require further consideration of self-reporting systems, 
program design and logistics, as well as obtaining specific public 
comment on how best to implement an effective tag program. This 
monitoring tool is included as a framework provision because a landing 
tag system merits further consideration. AP members noted that landings 
tags may assist in identification of the universe of Atlantic HMS 
anglers.
     Comment 3: NMFS violates the Magnuson-Stevens Act by not making a 
reasonable effort to quantify the number of vessels, effort, catches, 
landings, bycatch, and/or trends of landings for the recreational or 
charter fishing sectors in HMS fisheries.
     Response: The HMS FMP and the Atlantic billfish FMP amendment 
provide all available information on the commercial and recreational 
HMS fisheries, including: estimates of the number of recreational 
vessels involved,

[[Page 29122]]

the type and quantity of fishing gear used, the species of fish 
involved and their location, actual and potential revenues from the 
fishery. NMFS has quantified, to the extent practicable, the trends in 
landings of billfish and other HMS by the recreational sector. 
Information on the number of private boats and charter boats is more 
problematic, as noted in the FMP amendment, and is part of the 
rationale for requiring logbooks and permits, voluntary observers for 
charter-headboats, and notification and reporting for all billfish 
tournaments. In this final rule, NMFS establishes a number of measures 
that will improve estimates of recreational statistics, including 
mandatory permitting and logbook reporting for charter/headboats, 
observer coverage, and tournament reporting. Additional measures that 
can be utilized to further improve monitoring of the recreational, 
charter and commercial fishing sectors are included in the framework 
section of the HMS FMP and Atlantic billfish FMP amendment.
     Comment 4: NMFS should not require mandatory permits and logbooks 
for charter boats.
     Response: NMFS disagrees. The 1997 ICCAT recommendation requires 
improvements in monitoring, data collection, and reporting from all 
fisheries that encounter Atlantic billfish. These management measures 
provide catch and effort data for billfish that are currently not well 
quantified. Furthermore, NMFS seeks to improve data collection in the 
recreational sectors of all HMS fisheries.
     Comment 5: NMFS should not require observers on charter boats. 
This measure is impractical, violates the privacy of recreational 
anglers, will deter business, result in cancellation of trips, and will 
have a negative economic impact on the charter fleet and associated 
industries. NMFS should just place observers on the dock for 
inspections when boats come back to shore. Monitoring of the charter 
fleet by NMFS is unnecessary, since anglers release most HMS that are 
caught. Any federal funds spent on observers should be used to expand 
monitoring of the commercial pelagic longline fleet.
     Response: The final FMP establishes a voluntary observer program 
for charter and headboats, which will minimize the negative economic 
impact. Observers are a necessary component of fishery management to 
determine the accuracy of the data collected form logbooks, and will 
enable NMFS to directly observe recreational catch, hookup and release 
rates, the condition of released fish, and the species and size 
composition of the catch. This type of information cannot be obtained 
solely by dockside or telephone interviews. If statistically meaningful 
samples cannot be obtained, a mandatory program may be implemented in 
the future.
    Comment 6: The HMS tournament reporting form, currently used by 
NMFS for billfish, is difficult to use for reporting effort and other 
required information.
     Response: NMFS has received numerous comments suggesting that the 
HMS tournament reporting form should be revised. NMFS may consider 
holding joint workshops with NMFS scientists, representatives of 
fishing organizations, and interested members of the public to discuss 
the best format for accurate data reporting.
     Comment 7: Many charter/headboat vessels targeting HMS already 
carry a permit and complete a logbook under programs for other 
fisheries.
     Response: NMFS is requiring that all HMS charter/headboat owners 
that fish for HMS obtain an HMS permit, in order for NMFS to identify 
the universe of charter/headboats targeting HMS. However, NMFS does not 
intend to duplicate any reporting requirements and will therefore allow 
charter/headboat owners to submit logbooks to NMFS as they have in the 
past, consistent with other charter permit conditions. NMFS will send 
logbook forms to charter/headboat owners who do not currently submit 
logbooks.
    Comment 8: NMFS should increase observer coverage of the longline 
fishery; U.S. has failed to comply with ICCAT recommendations for 
minimum observer coverage.
     Response: NMFS continues to strive for a goal of 5 percent 
observer coverage in the pelagic longline fishery, under a stratified 
sampling scheme. This level of coverage is required under the ICCAT 
recommendation for yellowfin and bigeye tunas, and under the NMFS 
Biological Opinion to monitor takes of endangered species.
    Comment 9: NMFS should not increase the number of reporting 
requirements unless NMFS can analyze all the information that is 
collected.
    Response: NMFS increases reporting requirements in order to collect 
more accurate data on all sectors of HMS fisheries, in support of 
rebuilding programs.
    Comment 10: The Large Pelagic Survey (LPS) is not adequate to 
monitor catch of HMS.
    Response: NMFS disagrees. The LPS is a statistical survey designed 
to estimate catches of bluefin tuna, which is used both for in-season 
monitoring as well as year-end estimates of catch. Although it was 
designed for bluefin, the LPS collects information on other HMS at 
certain times and in certain areas. The MRFSS is a separate statistical 
survey designed to provide regional and state-wide estimates of 
recreational catch for the entire spectrum of marine fish species. 
Though not designed to account for the unique characteristics of HMS 
fisheries, the Marine Recreational Fishing Statistics Survey (MRFSS) 
does collect information on these species. In 1997, NMFS instituted a 
mandatory Automated Catch Reporting System (ACRS) to supplement 
monitoring of the recreational bluefin tuna fishery. The LPS is 
conducted simultaneously in order to provide a measure of comparison 
for the reported catch estimates. All recreational vessels are required 
to participate in both the call-in reporting and survey programs. NMFS 
is also committed to working with the states to develop more effective 
partnerships for monitoring the recreational bluefin tuna fishery. As 
part of a pilot program launched in 1998, over 20 reporting stations 
have been established in North Carolina, and vessels landing 
recreationally caught bluefin are required to fill out a catch 
reporting card for each bluefin retained. This program, coordinated by 
NMFS in cooperation with the North Carolina Division of Marine 
Fisheries, was continued in 1999. Other mid-Atlantic states, including 
Maryland and New Jersey, have demonstrated an interest in establishing 
similar programs. NMFS maintains that a successful tagging program 
depends upon effective state-federal coordination that takes into 
account regional differences in the fishery, as well as cooperation 
with the recreational industry.
    NMFS maintains the current system of recreational catch monitoring 
for HMS, including the LPS, MRFSS, ACRS, and cooperative state tagging 
programs, combined with the measures implemented in this FMP and the 
Amendment to the Billfish FMP (charter boat logbooks, mandatory 
tournament registrations and reporting), are sufficient to monitor 
recreational catch of HMS. NMFS is committed to improving catch 
monitoring in both the recreational and commercial fisheries for HMS, 
and will work with fishery participants, the APs, the Councils, the 
States, and other interest parties toward this goal.

Regulatory Flexibility Analysis

     Comment 1: The alternatives proposed in the draft FMP will have a 
disproportionate impact on pelagic longline fishermen and the analyses

[[Page 29123]]

contained in the IRFA and the draft HMS FMP do not seriously consider 
the many options to economic devastation that the pelagic longline 
industry has presented in the HMS AP process and in other submissions 
in recent years. Both the Regulatory Flexibility Act and NS 8 require 
NMFS to work diligently to develop alternatives that could permit 
rebuilding while moderating the economic impact of such conservation 
measures.
    Response: NMFS agrees that many of the final actions will have a 
significant economic impact on all HMS fishermen, including pelagic 
longline fishermen. However, NMFS disagrees that it has not seriously 
considered the many options presented in the HMS AP process or in other 
submissions. NMFS considered all of the alternatives presented, has 
considered additional alternatives, and has performed numerous analyses 
on logbook and observer data in an attempt to minimize economic impacts 
to the extent practicable on HMS fishermen, including the pelagic 
longline fishermen. Often times, these analyses indicated to NMFS a 
more effective method of accomplishing a particular goal while still 
minimizing economic impacts to the extent practicable. In all cases, 
NMFS ensures that the public has a chance to participate in the final 
rulemaking process. NMFS believes that the final actions will achieve 
the rebuilding goals of the Magnuson-Stevens Act while also minimizing 
the economic impacts to the extent practicable.
     Comment 2: It is not appropriate for NMFS to consider employment 
as a cost which lowers the net economic benefit.
     Response: NMFS realizes that employment is considered a benefit 
for the employee, but this is not the definition of net economic 
benefit. Net economic benefit is the difference between the benefits 
and costs to the owner of a vessel. Thus, because the owner pays the 
wages of the employees, labor must be considered a cost to the owner.
     Comment 3: The FMP fails to include an analysis of the cost of 
overfishing and depletion of the fishery resources.
     Response: NMFS disagrees. Although a quantitative analysis of the 
cost of overfishing was not performed, NMFS provided numerous 
discussions and qualitative analyses of the costs of overfishing and 
depletion of the fishery resources. Throughout the FMP NMFS discusses 
the benefits to fishermen in the long-term as the stocks rebuild and 
how the costs of fishing will continue to increase and the benefit to 
the nation will continue to decrease if HMS stocks remain overfished. 
In addition, NMFS repeatedly states that in the long-term, the economic 
impacts endured now will be less than the economic impacts endured if 
HMS fisheries continue to decline and the species become commercially 
extinct.
     Comment 4: Pelagic longline fishing should be profitable because 
it is so diverse. However, the draft FMP concludes that the average 
annual payout to a vessel owner is only $53,064. This small payout is 
due to years of cumulative impacts of ever more stringent fishery 
management measures, the impact of foreign competition, market gluts, 
and disparate levels of domestic versus international regulation of 
pelagic longline fishing. The management measures proposed in the draft 
FMP will put much of the pelagic longline fleet out of business.
     Response: NMFS agrees that the cumulative impact of the final 
actions in this FMP may put many pelagic and bottom longline fishermen 
out of business. However, NMFS believes that the many final actions 
implemented in this FMP both rebuild overfished fish stocks and 
minimize the economic impacts to the extent practicable. In the long 
term, the actions in the FMP will build sustainable stocks that are 
economically viable. At present, many of these stocks are not at 
economically viable levels. This is evident in the small profits 
currently available to the pelagic longline fleet.
     Comment 5: Requiring pelagic longline vessels to purchase, 
operate, and maintain a VMS is unfair; the VMS requirement will be 
economically devastating; the fixed costs of a VMS system fall 
disproportionately on smaller vessels; NMFS should not force the entire 
longline fleet to pay for VMS when only 20 vessels fished in the 
Straits of Florida proposed closure.
     Response: Although the initial cost of a VMS could be expensive 
($1,800 to $5,000), NMFS feels the benefits obtained from such a system 
justify the costs. Direct benefits to fishermen include: the ability to 
delay offloading during a closure thus obtaining a better price and 
allowing pelagic longline fishermen to travel to and from the south 
Atlantic through the north Atlantic after the closure; the ability to 
travel across a closed area; additional safety to vessel operators by 
enabling the Coast Guard to accurately find a vessel in case of an 
emergency; and in the future, a VMS may allow fishermen to transmit 
electronic logbooks thus decreasing the time taken to fill out the 
current logbooks and improving fleet-wide monitoring and predictions of 
closures. A VMS also allows for effective enforcement of time/area 
closures, thus helping to rebuild the stock. This FMP only implements 
one time/area closure, however NMFS believes time/area closures are an 
effective method of reducing bycatch and can contribute to rebuilding. 
NMFS intends to implement additional time/area closures in the future. 
VMS will be important in enforcing these time/area closures.
     Comment 6: The proposed Florida Straits closure will 
disproportionately impact the smallest and most economically vulnerable 
vessels in the fleet. The narrow targeting of the devastating economic 
impact on a handful of fishermen and fishing communities on Florida's 
East Coast is illegal and discriminatory. The contribution to 
rebuilding via reduction of dead discards will not be as great as the 
economic impacts on this small group of fishermen and will not be 
effective overall. A more productive approach would be to close larger 
areas for a shorter period of time. Such an approach would limit, if 
not preclude, the potential for redistribution of effort, while 
spreading the economic cost of rebuilding across a broader cross-
section of the pelagic longline fleet.
     Response: NMFS agrees that the proposed Florida Straits time/area 
closure may not be as effective as a larger time/area closure. However, 
NMFS does not agree that the proposed time/area closure discriminated 
against a handful of fishermen. The proposed time/area closure was 
designed to reduce the bycatch and rebuild the swordfish stocks, as 
required by the Magnuson-Stevens Act. NMFS did not propose a larger 
area in an attempt to mitigate the potential negative economic impacts 
of time/area closures on pelagic longline fishermen. However, the 
majority of commenters felt that while a time/area closure is 
necessary, the one proposed would not be effective. Thus, in this FMP 
NMFS is not implementing the proposed Florida Straits time/area 
closure. Instead, NMFS will re-examine all the data presented both 
before and during the comment period and re-analyze the data. A more 
effective, and probably larger, time/area closure will be proposed 
shortly after the implementation of this FMP.
     Comment 7: If NMFS decides to impose such strict regulations on 
pelagic longline fishermen, NMFS should develop a buyback program; the 
possibility of a buyback should not be linked to other conservation 
methods.
     Response: NMFS agrees that a buyback program might offset some of 
the economic hardships felt by HMS fishermen. Under section 312 (b) of 
the

[[Page 29124]]

Magnuson-Stevens Act, NMFS may implement a fishing capacity reduction 
program, such as a vessel or permit buyback, only once limited access 
has been implemented for the fishery. NMFS may consider a buyback 
program for commercial fishermen in the shark, swordfish, and tuna 
longline fisheries once limited access is implemented and funding is 
available.
     Comment 8: NMFS' threshold of 50-percent reduction in gross 
revenues for a vessel to cease fishing operations lacks validity for 
the pelagic longline fishery. This fishery has already been 
economically decimated by successive rounds of regulations. A 20-
percent reduction would be a more valid threshold.
     Response: NMFS disagrees that the 50-percent reduction lacks 
validity. Based on information received during past comment periods, 
NMFS has determined that many fishermen remain in the fishery long 
after their gross revenues have been reduced by over 50 percent. While 
some fishermen may cease operations after 20 percent, information 
presented to NMFS does not support this threshold for ceasing fishing 
operations for the majority of participants.
     Comment 9: The average annual earnings in the IRFA are 
overestimates. The actual economic situation is worse than NMFS is 
describing.
     Response: As discussed in the IRFA, NMFS realizes the need for 
additional economic data for all HMS fishermen. NMFS has used the best 
available information and intends to work with the AP to develop a 
mandatory submission of economic information. There is nothing to 
preclude any small business from providing voluntarily and on its own 
initiative any cost data to NMFS for consideration in preparing an IRFA 
or FRFA. However, no such data have been forthcoming during the entire 
process of FMP development.
     Comment 10: The fact that the draft FMP's preferred alternatives 
will most likely compel most of the pelagic longline fleet to cease 
operations vitiates the Agency's rosy long-term prognosis that domestic 
pelagic longline fishing income should increase once rebuilding, as the 
agency defines it, is well underway. Simply put, the vessels will not 
be around to fish, nor can the shoreside infrastructure in pelagic 
longline dependent communities survive these fishing restrictions.
     Response: NMFS agrees that the final actions will have significant 
impacts on HMS fishermen and that many fishermen may cease to fish. 
However, current fishing mortality levels are not sustainable. If NMFS 
does not impose restrictions now, there may not be any fishery in the 
future. In addition, the Magnuson-Stevens Act requires NMFS to 
rebuilding overfished fish stocks to OY and places a time limit for 
this rebuilding. This FMP will allow NMFS to rebuild HMS.
    Comment 11: NMFS does not adequately consider cumulative impacts of 
its management measures.
    Response: NMFS disagrees. The IRFA contained in the draft HMS FMP 
explains how NMFS considered the impacts, cumulative and specific, of 
the proposed management measures. The IRFA found that cumulatively, the 
management measures would have a significant economic impact. The 
cumulative impact of the final actions will also have a significant 
economic impact.

Limited Access: General

    Comment 1: Access to the Atlantic swordfish and shark fisheries 
should be limited based on historical participation as shown by permits 
and landings thresholds. The goal should be to limit participants to 
those who not only currently have permits, but who are actively 
participating in the fishery.
    Response: NMFS agrees.
    Comment 2: NMFS received a range of comments regarding limited 
access and buyback programs, including: implement the proposed limited 
access in the swordfish and shark fisheries because both are 
overcapitalized; the number of vessels permitted to fish must be 
reduced in order to remove the large amount of latent fishing capacity 
in these fisheries; implement a permit moratorium first; limited 
access, as proposed, will maintain the shark derby; reduce the size of 
the legitimate fishing fleet with a ``buyback'' program like the one 
implemented in the New England groundfish fishery; implement a buyout 
program; require 2 limited access permits be bought to obtain 1 limited 
access permit; implement the limited access proposal because it is the 
foundation of managing sharks; and reduce the number of shark permits 
to the lowest levels possible.
    Response: NMFS believes that the limited access system, as a first 
step, will reduce latent effort and overcapitalization in both the 
Atlantic swordfish and shark fisheries. A permit moratorium will not 
address the severe overcapitalization present in both fisheries. 
Regarding ``buyback'' programs NMFS recently published a proposed rule 
on the subject (64 FR 6854). NMFS may consider a buyback program in 
both fisheries once limited access is established and funding is 
available.
    Comment 3: Most of the FMP relies on setting up a limited access 
program. However, because the limited access program as proposed is a 
temporary measure it makes it difficult to comment on the rest of the 
HMS FMP.
    Response: NMFS disagrees. NMFS does not believe that most of the 
HMS FMP relies on setting up limited access nor does it consider the 
limited access program a temporary measure. Most of the other measures 
could be implemented without limited access. However, the effectiveness 
of these measures may be hindered if the fisheries remain 
overcapitalized. Limited access is meant to be a starting point for 
rationalizing the effort in both the swordfish and shark fisheries with 
the available quotas.
    Comment 4: Permit issuance and administration should remain 
consistent.
    Response: In developing this limited access program, NMFS employees 
from management, permit issuance, and enforcement were consulted to 
ensure consistency between issuing permits under limited access and the 
way they were issued in the past. Due to limited personnel and 
resources, NMFS determined that the initial issuance of limited access 
permits should be from the Office of Sustainable Fisheries, Highly 
Migratory Species Division. NMFS agrees that the current administration 
and issuance of permits should be maintained through the Southeast 
Regional Office at this time, with the exception of the initial limited 
access permits.
    Comment 5: Most of the limited access system is incomprehensible 
and it was impossible to decipher how the limited access proposals 
apply to each fishery. The administration of permits is inconsistent 
with regard to who or what entity would be eligible for a limited 
access permit, depending on the fishery in which the vessel operates.
    Response: NMFS attempted to make this limited access system as 
simple as possible to understand, which is difficult given the 
differences in the current administration of the swordfish and shark 
fisheries. However, because the rule consolidates regulations for all 
HMS fisheries, this should become easier over time. In both fisheries, 
permits will be issued to the current vessel owner. In the shark 
fishery, if the operator qualified the vessel, the permit is valid only 
when the operator is on board that vessel and this condition is only 
required until May 1, 2000, which is the first full year after 
implementation of limited access. After May 1, 2000, the condition 
requiring the operator to be on board for limited access permits

[[Page 29125]]

issued based on the qualifications of the operator will expire. Through 
this condition, NMFS intends to ensure that vessel operators, who 
helped the owner qualify for a shark permit and who may have an 
investment in the fishery, will not be negatively impacted by limited 
access.
    Comment 6: Taking away permits is unconstitutional and it is 
alarming that NMFS would take away permits for reasons other than 
illegal activities.
    Response: There is no property interest in nor right to a permit in 
the HMS fisheries. NMFS may institute limited access in accordance with 
the Magnuson-Stevens Act and other applicable law as appropriate.
    Comment 7: The proposed limited access system has no conservation 
benefits.
    Response: NMFS disagrees. As stated in the HMS FMP, limited access 
is intended to address overcapitalization and latent effort in the 
Atlantic swordfish and shark fisheries, which contribute to the 
existing, as well as potential for increases in, the ``race for fish'', 
market gluts, unsafe fishing conditions, and general economic 
inefficiency. NMFS believes that limited access has conservation 
benefits including better identification of active fishermen for 
educational workshops to reduce bycatch and bycatch mortality, 
reductions in derby fishing conditions, and improved safety at sea. 
NMFS further notes that reducing fishing capacity in overcapitalized 
fisheries is one of the strategies highlighted in the NOAA Fisheries 
Strategic Plan (May 1997) to increase long-term economic and social 
benefit to the Nation.
    Comment 8: NMFS should address the issues surrounding fleet size 
versus quota availability in the shark fishery.
    Response: NMFS is aware that the limited access system contained in 
the HMS FMP, while an important first step, may not address all the 
problems in the Atlantic shark fisheries, including derby fishing 
conditions and excess harvesting capacity of the fleet relative to 
available quota. NMFS may consider additional management measures to 
address these issues in the future.
    Comment 9: NMFS should include mahi-mahi (dolphin), little tunny, 
and wahoo in the HMS limited access system.
    Response: NMFS disagrees. Management of dolphin and wahoo is 
currently under development by the South Atlantic Fishery Management 
Council. Regarding little tunny, the Magnuson-Stevens Act defines 
``tuna species'' under Secretarial management as albacore, bluefin, 
bigeye, skipjack, and yellowfin tuna. Therefore, little tunny is also 
outside the jurisdiction of the Secretarial plan for tuna species, 
contained in the HMS FMP.
    Comment 10: NMFS should allow traditional gears (harpoon, handline, 
rod and reel) to be used on vessels that also have pelagic longline 
gear on board and should provide reporting abilities on the logbooks 
for these gears.
    Response: NMFS agrees. NMFS believes that use of secondary gear 
types is reasonable. NMFS may consider modifications to the pelagic 
logbook reporting forms as appropriate to accommodate catches and 
landings using secondary gears.
    Comment 11: NMFS should require that boats must earn equal to or 
more than 50 percent of their income from pelagic longline fishing to 
qualify for a permit in the following year.
    Response: NMFS disagrees that such a requirement is appropriate at 
this time. However, NMFS may consider additional measures to further 
reduce the number of limited access permits in the future as necessary 
to meet conservation goals and increase long-term economic and social 
benefit to the nation.

Limited Access: Historical Permits

    Comment: The preferred eligibility requirement that participants 
must have had a permit from July 1, 1994 through December 31, 1997, is 
reasonable, as are the preferred landings eligibility periods of 
January 1, 1987 to December 31, 1997 for swordfish landings and January 
1, 1991 to December 31, 1997 for shark landings.
    Response: NMFS agrees.

Limited Access: Landings Thresholds

    Comment 1: The numbers proposed for the directed landings threshold 
preferred alternative for swordfish are too close to incidental bycatch 
limits. This could push fishermen who are really incidental into the 
directed category and encourage extra effort. Raising the threshold to 
100 swordfish or 408 sharks in any two years would raise the threshold 
high enough that incidental fishermen would not be given a directed 
permit. The $5,000 limit is too low; NMFS should use a $20,000 
threshold from all fishing.
    Response: The landings thresholds are based on $5,000 annual gross 
revenue from fishing for either swordfish or sharks. NMFS used this 
level in the past to determine which fishermen are ``substantially 
dependent'' on the fishery, and NMFS believes this level of gross 
revenues from fishing is an appropriate threshold between fishermen who 
are essentially incidental (land a few fish each year as incidental 
catch) versus directed (actually target the fish at some point during 
the year). Raising the landings threshold to a level of $20,000 would 
force fishermen who target and depend on a variety of fish during the 
year to fish for swordfish or sharks incidentally. The higher threshold 
could put fishermen who are substantially dependent on the fishery out 
of business and is contrary to the goal of removing latent effort while 
allowing participating fishermen to continue to fish.
    Comment 2: The Larkin et al. (1998) price of $2.96 / lb ($6.51 / 
kg) dressed weight which NMFS used to determine the swordfish landings 
threshold is wrong. The correct price should be $2.96 / lb ($6.51 / kg) 
whole weight. This would decrease the $5,000 threshold to 19 swordfish 
from 25 swordfish.
    Response: NMFS agrees. However, NMFS believes that 25 swordfish may 
be a better proxy for the $5,000 threshold given the decrease in 
average swordfish prices over the past few years and maintains the 25 
swordfish per year for two years landings criterion. Alternatively, 
because the ex-vessel price of swordfish or sharks depends on the size 
and quality of the fish as well as market conditions, NMFS will also 
accept documentation indicating that the vessel owner landed at least 
$5,000 gross revenue worth of swordfish (for a swordfish limited access 
permit) or shark (for shark limited access permit). This documentation 
will only be accepted in an application or an appeal.
    Comment 3: NMFS should allow swordfish and sharks that were tagged 
and/or released alive to be counted towards the landings eligibility 
criteria.
    Response: NMFS disagrees. NMFS believes that the eligibility 
criteria for both sharks and swordfish are lenient enough that 
fisherman interested in landing sharks or swordfish should be able to 
qualify for either a directed or an incidental permit without the help 
of fish that were released alive. Additionally, while NMFS acknowledges 
and encourages fishermen to tag and release fish with a minimum of 
injury, NMFS does not have the ability currently to determine from 
logbook records which fish were released due to regulatory requirements 
(minimum size, closed seasons) and therefore would not have been legal 
landings anyway.
    Comment 4: NMFS should consider as an alternate eligibility 
criteria for shark limited access for a directed permit that, for 2 of 
the past 3 years, 75 percent of income come from commercial fishing 
with 50,000 lbs (22.67 mt) dw shark

[[Page 29126]]

landings. All other permit holders may be given incidental permits.
    Response: NMFS disagrees. The landings thresholds are based on a 
level of fishing of $5,000 annual gross revenue from fishing for either 
swordfish or sharks. NMFS used this level in the past to determine 
which fishermen are ``substantially dependent'' on the fishery. Raising 
the landings threshold to 75 percent of income coming from commercial 
fishing with 50,000 lbs dw shark landings might force fishermen who 
target and depend on a variety of fish during the year to fish for 
sharks incidentally. This might put fishermen who are substantially 
dependent on the fishery out of business and is contrary to the goal of 
removing latent effort while allowing participating fishermen to 
continue to fish.
    Comment 5: NMFS should allow owners to transfer catch history to 
the operator.
    Response: The limited access system allows for catch history sales 
or transfer as long as such sales are documented in a written 
agreement. NMFS will consider such sales or transfer through the 
application process.
    Comment 6: There should be no eligibility requirements for 
fishermen who fish only in the South Atlantic at this time.
    Response: NMFS disagrees. On October 24, 1997 (62 FR 55357), NMFS 
extended the U.S. management authority to include U.S. fishermen 
fishing for swordfish in the South Atlantic and established that South 
Atlantic fishermen were subject to the same regulations, including 
limited access, as North Atlantic fishermen. NMFS believes that limited 
access is important in the South Atlantic to prevent the severe 
overcapitalization and excess harvest capacity that exist in the North 
Atlantic. Once limited access is in place, NMFS may consider different 
management measures, as appropriate, in the South Atlantic to address 
issues unique to that fishery.

Limited Access: Recent History

    Comment: NMFS should consider allowing 1998 landings, especially 
since people left the shark fishery after the 1997 LCS quota reduction, 
or allowing directed shark permit holders to exchange their shark 
permits for directed swordfish permits. NMFS should not penalize 
fishermen for diversification since that is what NMFS wanted people to 
do.
    Response: NMFS disagrees. While NMFS is aware that shark fishermen 
may have left the shark fishery and entered other fisheries after the 
LCS quota was reduced in 1997, NMFS does not believe that allowing 
directed shark permit holders to exchange their shark permits for 
directed swordfish permits is consistent with the goal of limiting 
access and reducing overcapitalization to the Atlantic swordfish 
fishery. Regarding 1998 landings, these data are not yet available in 
usable electronic format and NMFS believes that delaying implementation 
of limited access for another year will only worsen the 
overcapitalization that already exists in these fisheries. NMFS 
regulations allow transfer of limited access permits between private 
persons/entities.

Limited Access: Incidental Permits

    Comment 1: Incidental permits for Atlantic sharks should be given 
automatically with an Atlantic swordfish directed permit and vice 
versa.
    Response: NMFS agrees that fishermen who initially qualify for an 
Atlantic swordfish limited access permit (directed or incidental) 
should be also be provided an incidental shark limited access permit 
and an Atlantic tunas Longline (formerly incidental) category permit 
because the gear used to catch swordfish can also catch sharks and 
tunas incidentally. For the same reasons, NMFS will give fishermen who 
held an incidental tuna permit in 1998 a shark incidental limited 
access permit and a swordfish incidental limited access permit. NMFS 
will not automatically provide directed shark fishermen with incidental 
swordfish or tuna permits because directed bottom longline shark sets 
rarely catch swordfish or tunas. Note that NMFS implements the 
requirement that fishermen who enter the swordfish fishery at a later 
date are responsible for obtaining all three permits (swordfish limited 
access, shark limited access, and tuna longline) on their own.
    Comment 2: The incidental trip limits for sharks are too low. NMFS 
should, at a minimum, return to the previous proposal of 4 sharks, any 
species, per vessel per day although evidence has been presented which 
could increase the LCS trip limit to 9 LCS per day in some regions. The 
pelagic shark incidental trip limit is inconsistent with NS 9 because 
it will increase bycatch and waste. Furthermore, the pelagic shark 
incidental trip limit should be increased because the pelagic shark 
quota has not been filled.
    Response: NMFS disagrees. NMFS selected a maximum of 5 LCS per 
vessel per trip and a maximum of 16 pelagic and SCS, all species 
combined, per vessel per trip because analyses indicated that very few 
trips caught numbers of sharks above the these limits. NMFS analyzed 
the catches (not landings) of LCS, pelagic, and SCS reported in the 
pelagic logbook for LCS during LCS directed fishery closures and for 
pelagic sharks when the target species was not reported as sharks. NMFS 
chose to analyze these trips' catches because NMFS believes that these 
trips represent truly incidental catches because sharks on these trips 
either were not the target species or could not be retained. These 
analyses indicated that during the 1996 LCS closures, over 75 percent 
of 1,562 trips caught a maximum of one LCS (50 percent of trips did not 
report catching any LCS), 10 percent of the trips caught a maximum of 9 
to 80 LCS (although only one percent of trips caught 80 LCS). Of the 
1,631 trips in 1996 where sharks were not targeted, over 75 percent 
caught a maximum of 5 pelagic sharks (50 percent of trips did not 
report catching any pelagic sharks), 10 percent caught a maximum of 25 
to 286 pelagic sharks (only one percent of trips caught 286 pelagic 
sharks). Estimates based on 1997 data were similar but slightly lower. 
NMFS believes that the selected retention limits for incidental shark 
permit holders are appropriate because very low percentages of trips 
caught more than these limits.
    Additionally, NMFS believes that many of the permits holders who 
reported large catches of pelagic sharks may qualify for a directed 
shark permit (if they landed those sharks) such that the incidental 
retention limits would not apply and the fish could be landed, thus 
reducing bycatch and waste. If they did not land their catches of 
pelagic sharks, then receiving an incidental shark permit would not 
impact their current fishing practices, and bycatch would not be 
increased although it would also not be reduced. Should such fishermen 
decide that they would like to land their incidental shark catches 
above the incidental retention limits, they could obtain a directed 
limited access permit because the permits are transferable. For LCS 
caught during LCS closures, NMFS is aware that these fish are 
regulatory discards and that the final actions in the HMS FMP may 
increase the duration of LCS closures and the associated regulatory 
discards. However, NMFS does not believe that increasing the incidental 
retention limits is appropriate because it would likely result in 
landings exceeding the allowable limits and delayed rebuilding for 
these species. For these reasons, NMFS believes that the selected 
retention limits for incidental shark permit holders are appropriate 
and that

[[Page 29127]]

regulatory discards will be minimized to the extent practicable.
    Comment 3: Incidental fisheries should be tightly controlled with 
quotas.
    Response: NMFS agrees.

Limited Access: Swordfish Handgear

    Comment 1: The preferred alternative that handgear permits be 
issued to those who can prove a historical participation in the fishery 
is reasonable.
    Response: NMFS agrees.
    Comment 2: The handgear permit should be transferable to ensure the 
category will not be phased out if the recovery period takes as long as 
expected or longer.
    Response: NMFS agrees and implements transferability of handgear 
permits for use with handgear only. However, a handgear permit may not 
be transferred for use with a longline. To further encourage the use of 
handgear, NMFS may consider allowing incidental or directed permits to 
be transferred for use with handgear only in the future. This could 
allow for an increase in the share of the handgear permits in the 
fishery once the stock recovers.
    Comment 3: The preferred alternative for swordfish handgear 
eligibility is better than previous proposals, but the qualification 
period does not begin early enough to accommodate traditional 
fisheries. If limited access for all swordfish gear is necessary, the 
qualification criteria should also allow crew members on traditional 
harpoon boats to be eligible for a vessel permit to fish in the harpoon 
fishery.
    Response: NMFS disagrees. The permit qualification period for 
swordfish begins with the start of mandatory reporting and permitting. 
At that time, swordfish fishermen could indicate on their permit 
applications that they were using harpoons but this was not required. 
In addition, NMFS does not have any records identifying the crew on 
these traditional harpoon vessels. However, if the crew members are 
still fishing and own a vessel, they may be able to qualify for a 
handgear permit based on the earned income requirement.
    Comment 4: The harpoon fishery should remain an open access fishery 
due to the size selectivity of the gear, the high costs of entry into 
the fishery, and the low likelihood that open access for the harpoon 
fishery would lead to overcapitalization and overfishing. A moratorium 
institutionalizes the exclusion of a historic fishery that was driven 
from the fishery by the longline fishery and the lack of large fish. 
Harpooning is the most selective gear type in the fishery and 
encouraging participation is therefore preferable to institutionalizing 
participation in a less-selective fishery.
    Response: NMFS agrees that the traditional handgear segment should 
have a place in the fishery. However, NMFS believes that leaving the 
handgear segment of the swordfish fishery open access would allow for 
the same potential for overcapitalization that has already occurred in 
the other segments of the Atlantic swordfish fishery.

Limited Access: BAYS Tunas

    Comment 1: Fishermen with a Longline category Atlantic tunas permit 
(formally Incidental category) should be given a swordfish and shark 
limited access permit. However, this alternative may need to be 
modified so that directed tuna permits apply only if used with the same 
gear that qualified the holder for the swordfish permit.
    Response: NMFS agrees and will automatically provide those tuna 
fishermen who held an Incidental category Atlantic tunas permit in 1998 
an incidental shark and swordfish limited access permit for use only 
with authorized gears (tuna fishermen who meet the directed fishery 
eligibility criteria will receive directed limited access permits). In 
both cases, the majority of commercial fishermen would be using pelagic 
longline gear. Note that NMFS implements the requirement that fishermen 
who enter the tuna longline fishery at a later date are responsible for 
obtaining all three permits (swordfish, shark, and tuna longline) on 
their own.
    Comment 2: Bottom longline shark fishermen displaced from their 
fishery should not be given tuna longline permits. They should be 
bought out or retrained instead.
    Response: NMFS agrees that directed shark fishermen should not 
automatically be provided a tuna Longline category permit because 
directed bottom longline shark sets rarely catch tuna. Additionally, 
similar to the rationale for swordfish limited access permits, NMFS 
does not believe that automatically providing directed shark permit 
holders with tuna Longline category permits is consistent with the 
ICCAT recommendation to limit effective fishing effort for yellowfin 
tuna to 1992 levels or the goal of limiting access and reducing 
overcapitalization in the fully to overfished Atlantic tunas fishery.

Limited Access: Appeals Process

    Comment 1: The appeals process should not be handled by the Chief 
of the HMS Division, but by some other administrative procedure.
    Response: The permit process consists of two parts: the 
applications and the appeals. Due to limited personnel and resources, 
the applications (the first part of the process) will be handled by the 
Chief of the HMS Division because all the information and data used to 
make the initial determinations are available in this Division. NMFS 
agrees that the appeals (the second part of the process) should be 
handled by a separate administrative procedure. Therefore, the appeals 
will be handled by appeals officers who will be NOAA employees, but not 
employees who work in the HMS Division, in order to separate the two 
decision-making processes. The final agency decision will be made by 
the Director of the Office of Sustainable Fisheries.
    Comment 2: Hardship cases should be included in the appeals 
procedure.
    Response: NMFS disagrees. In the draft HMS FMP, NMFS did not 
propose to consider hardship cases because any definition of a 
``hardship'' would make it extremely difficult to ensure consistency 
between decisions on the appeals, and NMFS believes that not allowing 
hardship cases will ensure that everyone is treated equally with no 
extraneous information harming or helping their case. This rationale 
has not changed.
    Comment 3: NMFS should allow oral hearings.
    Response: NMFS has not selected to allow oral hearings due to the 
logistical problems and potential inconsistencies with fairness and 
equity under NS 4.

Limited Access: Harvest Limits

    Comment: The harvest limit for Atlantic swordfish should be 
increased to 50 percent of the marketable highly migratory species on 
board, but not to exceed 15 in number per vessel per trip. Other 
percentages may be acceptable depending on analyses. NMFS should 
implement directed catch criteria for pelagic sharks to help prevent 
directed pelagic shark fisheries from developing.
    Response: NMFS disagrees. NMFS believes that target catch limit 
requirements can cause an increase in mortality by requiring fishermen 
to fish more than they normally would in order to retain the fish they 
have already caught. As stated in the HMS FMP, NMFS believes a straight 
retention limit is easier to enforce and understand. Once limited 
access is in place, NMFS may explore further options for determining 
optimal bycatch and incidental allowances.

[[Page 29128]]

Limited Access: Transferability

    Comment 1: The preferred alternatives regarding the transferability 
of directed and incidental permits are reasonable.
    Response: NMFS agrees.
    Comment 2: The draft FMP allows for the splitting of permits (4-
37), but the basis for limited access is to limit capacity (by allowing 
a vessel that was issued both swordfish and shark limited access 
permits to sell one permit while retaining the other, the harvesting 
capacity of the overall fleet will increase with the addition of a 
second vessel where there had been only one). This is inconsistent and 
conflicts with the stated intent of limited access. NMFS should adopt 
transferability requirements consistent with those in the Multispecies 
and Scallop FMPs. These plans allow transfers of permits to new owners 
only with the sale of a vessel or to other replacement vessels, 
provided that the new vessel complies with certain upgrading 
restrictions.
    Response: NMFS disagrees. NMFS believes that selected 
transferability restrictions are consistent with the intent of this 
limited access program of reducing latent effort and rationalizing 
effort with the available quota. NMFS does not believe that fishermen 
should have to sell their vessel just because they want to leave the 
swordfish or shark fisheries. Accordingly, fishermen may transfer their 
permit with or without the sale of the vessel. However, once they sell 
their permit, they are out of the fishery. Thus, the capacity and 
effort in the fishery remain the same.
    Comment 3: Non-transferable individual quotas would be the best 
second step of limited access because any fish not harvested would be 
conserved, and transferable individual quotas ensure that all fish are 
harvested.
    Response: NMFS may consider transferable and/or non-transferable 
quotas, as well as other management measures to address fleet size and 
available quotas, in future rulemaking in conjunction with the HMS AP.
    Comment 4: NMFS should allow people who transfer or sell permits 
without the vessel to keep their permit inactive (not attached to a 
vessel) for a while so there is sufficient time to find and purchase a 
sea-worthy vessel. Otherwise, people may have to rush and buy a 
replacement vessel so they don't lose their permit when they want to 
sell their current vessel.
    Response: NMFS agrees. As is currently allowed in other limited 
access fisheries, vessel owners may sell their vessel and retain the 
limited access permits as long as they inform NMFS in writing that the 
permit is inactive within 30 days of the vessel sale. The vessel owner 
may then obtain a replacement vessel to which the limited access 
permit(s) will be transferred, subject to upgrading and ownership 
restrictions, as applicable.

Limited Access: Upgrading

    Comment 1: NMFS should adopt the New England and Mid-Atlantic 
Fishery Management Council (NEFMC, MAFMC) upgrading restrictions to 
address consistency issues across fisheries.
    Response: NMFS agrees.
    Comment 2: NMFS should not adopt the same upgrading restrictions as 
the NEFMC and MAFMC. The majority of fishermen affected by the limited 
access system for the Atlantic swordfish and shark fisheries do not 
participate extensively in fisheries that are under the jurisdiction of 
these councils. The vessel length and horsepower upgrading restrictions 
developed by the Councils, which are appropriate for trawl fisheries, 
are not appropriate for longline fisheries. Further, increasing vessel 
length is an important part of increasing safety at sea, especially for 
vessels fishing further and further offshore due to time/area closures 
and other regulations.
    Response: NMFS believes that regulatory consistency across 
fisheries is important to reduce confusion and burdens on fishermen 
that participate in multiple fisheries under multiple jurisdictions. 
However, NMFS is aware that the upgrading restrictions adopted by the 
NEFMC and MAFMC may limit fishermen's abilities to address safety at 
sea issues related to vessel length and that the upgrading restrictions 
are more tailored to trawl vessels than the longline vessels. 
Therefore, NMFS implements the restrictions on vessel upgrading as a 
final measure at this time to prevent substantial increases in the 
harvesting capacity of HMS vessels but will consider alternative 
criteria to control the harvesting capacity in ways that minimize 
safety concerns. NMFS will assemble data on hold capacity, consider 
requesting hold capacity information on permit applications, and work 
with the AP and affected public to consider proposing HMS-specific 
vessel upgrading restrictions that account for necessary upgrades in 
horsepower and vessel length to address safety concerns.

Limited Access: Ownership Limits

    Comment: None of the ownership restrictions proposed (restricting 
the number of vessels that any entity could own to no more than five 
percent of the permitted vessels or no restrictions on ownership) are 
reasonable.
    Response: NMFS disagrees. NMFS believes that ownership restrictions 
are an effective tool for preserving the historical small owner/
operator nature of the fishery. As such, NMFS will restrict the number 
of Atlantic swordfish or shark vessels any one entity can own to no 
more than five percent of the directed swordfish or shark permitted 
vessels in the directed fisheries.

Issues for Future Consideration

    There are issues that were not changed from the proposed rule that 
NMFS intends to consider further. These issues include the purse seine 
quota cap, prohibiting certain shark species, the practice of 
strikenetting in the shark drift gillnet fishery, commercial shark 
landing condition, use of fishing gears and gear definitions, etc. As 
explained above, NMFS will request the HMS AP to reconsider the purse 
seine cap in the context of the ICCAT Rebuilding Program. As to 
prohibited shark species, under the SAFE process, NMFS will annually 
evaluate the list of species for which possession is authorized under 
the management policy that only allows possession of those shark 
species known or expected to be able to withstand fishing mortality. 
NMFS is currently considering the implications of several regulations 
that affect the practice of strikenetting in the shark drift gillnet 
fishery. NMFS received comments that requiring recreational anglers to 
keep sharks intact while allowing commercial fishermen to head and fin 
sharks is unfair. While NMFS strives for consistent regulations among 
user groups, concerns about quality and safety of seafood sold for 
public consumption resulting from inadequate freezing of shark 
carcasses preclude the same regulation for both user groups. However, 
these comments warrant further consideration. NMFS will continue to 
consult with the public and the HMS and Billfish Advisory Panels on 
these issues.

Changes From the Proposed Rule

    NMFS made numerous technical and substantive changes from the 
proposed rule in response to the comments received, to incorporate 
relevant final rules issued after the proposed rule was published, and 
to achieve consistency with regulations in other CFR parts.
    Changes to incorporate other rulemakings included the supplemental 
rule to implement the addendum to the HMS FMP (64 FR 9298, February 25, 
1999), the final rule to prohibit the use

[[Page 29129]]

of driftnet gear (64 FR 4055, January 27,1999), and the final rule to 
restrict imports of undersized Atlantic swordfish (64 FR 12903, March 
16, 1999).
    Several technical corrections were made to clarify the regulations 
and to remove obsolete regulatory text. Regarding BFT dealer reports, 
NMFS no longer uses an interactive voice response system for daily 
landing reports. Clarification for the reporting of BFT not sold to a 
licensed dealer includes requiring a licensed dealer to tag and report 
a fish not sold to it upon the request of the person who landed the 
fish. Also the regulations pertaining to angling reports of BFT 
landings for states with tagging systems in place were clarified. A 
clarification was made to indicate that no BSD is required for southern 
bluefin tuna imports. The annual landings quota for the north Atlantic 
swordfish stock was changed to reflect values previously published for 
the 1999 fishing year. Clarifications were made pertaining to the 
installation and operation of vessel monitoring systems. Obsolete 
references regarding the ICCAT port inspection scheme were removed. 
Notice provisions for changing the commencement dates of tuna fishing 
seasons were removed because such changes would now be accomplished by 
framework action under the FMP. The regulations pertaining to the use 
and possession on board of authorized gear for the Atlantic tunas 
fisheries were revised to make clear that the category specific gear 
restrictions apply only to the taking of BFT.
    Several changes were made to achieve consistency with regulations 
contained in other parts of the Code of Federal Regulations. The 
listing of approved information collections at 15 CFR part 902 was 
updated to account for the consolidation of HMS regulations into 50 CFR 
part 635. Given the restructuring of permit categories and 
clarifications on allowable fishing gear, the authorized gear listing 
at 50 CFR 600.725(v) was updated. Cross references to 50 CFR part 285 
were updated to 50 CFR part 635 for the trade documentation 
requirements for Pacific bluefin tuna at 50 CFR part 300.
    A number of changes to the regulations were made in response to 
comments received on the proposed rule. To reduce the reporting burden 
given that FAX/OCR technology has been installed, NMFS has removed the 
requirement for BFT dealers to mail daily landing reports of BFT and 
extended the reporting deadline for the HMS bi-weekly report to 10 days 
after the close of the reporting period. NMFS changed the requirement 
for attendance at educational workshops for all longline operators to 
establish a voluntary program for both recreational and commercial 
fishermen. In the billfish fishery, NMFS is not implementing retention 
limits but will make adjustments to the minimum size limits as 
necessary to ensure that landings do not exceed authorized levels. 
These adjustments would be made via interim emergency rule or proposed 
and final rule under framework measures in the amendment. Additionally, 
the proposed prohibition on the use of multiple hooks when fishing for 
billfish is not implemented.
    On a trial basis, the proposed observer program for private/charter 
recreational fishing trips is being implemented as a voluntary rather 
than mandatory program. However, observers are required for all shark 
drift gillnet trips.
    Another change is removal of the proposed exemption of the 
requirement to obtain a HMS Charter/Headboat permit for vessels having 
a Charter/Headboat permit issued under any northeast or southeast 
regional FMP. However, this permit requirement will not be made 
effective until OMB approval for the increased reporting burden is 
obtained.
    The proposed time/area closure for the Florida Straits to protect 
small swordfish is not implemented. A more effective closure is needed 
to reduce small swordfish bycatch. NMFS will convene a meeting of the 
HMS AP to address this issue and will publish a proposed rule by 
September 1999. The northeastern United States time/area closure 
designed to reduce incidental take of BFT by pelagic longlines has been 
reduced in size from that initially proposed due to public comment 
regarding safety and economic impact, as well as revisions in the 
analyses conducted regarding this closure. NMFS will not close the 
proposed areas to protect northern right whales at this time because 
pelagic longline fishermen have not fished in those areas in the past 
and are not expected to in the future. If interactions between pelagic 
longline gear and right whales in these areas become likely to occur, 
NMFS will seek appropriate action under the authority of the Marine 
Mammal Protection Act.
    The prohibition on the retention of blue sharks, as proposed for 
both the commercial and recreational fishing sectors, is not 
implemented. The shark recreational catch limit is changed to one shark 
of any allowed species per vessel per trip, with a minimum size of 4.5 
ft (137 cm). In addition, one Atlantic sharpnose per angler per trip is 
allowed, with no minimum size.

Classification

    These final regulations are published under the authority of the 
Magnuson-Stevens Act and ATCA. The Assistant Administrator has 
determined that these regulations are necessary to implement the 
recommendations of ICCAT and are necessary for the management of the 
Atlantic tunas, swordfish, shark and billfish fisheries.
    NMFS prepared an initial regulatory flexibility analysis to assess 
the impacts on small entities of the provisions of the proposed rule 
that would implement the HMS FMP. Based on public comments, as 
described above, NMFS changed certain provisions for the final rule to 
mitigate the impacts on small entities and prepared a FRFA.
    Logbook data indicate that fishermen routinely enter and exit HMS 
fisheries and this dynamic participation suggests that the universe 
should not be limited only to ``active'' participants; i.e., those who 
landed HMS in a given year. For example, NMFS found that of the over 
2,000 permitted shark fishermen in 1995 and 1996, only 352 landed at 
least one large coastal sharks in both years. However, in both years 
over 500 fishermen landed at least one large coastal sharks; additional 
fishermen landed pelagic and small coastal sharks. Limiting the 
universe to the 352 permit holders who participated in the large 
coastal sharks fishery in both years would ignore the potential loss of 
opportunity experienced by permit holders who did participate in only 
one of those two years but who are regularly ``active'' in the fishery. 
Logbooks also show the multi-species nature of HMS fisheries. Few 
fishermen rely solely on one species of HMS or even on multiple species 
of HMS. Instead, fishermen fish for, and rely on, other species in 
addition to HMS including but not limited to mackerel, snapper-grouper, 
reef fish, dolphin, and oilfish. Previous studies in the area of 
natural resource valuation have shown that people, including fishermen, 
value the mere existence of opportunities regardless of whether they 
actually make use of them or not, and are willing to pay for the 
existence of options, which is separate from the profit that they could 
earn from exercising those options.
    In the HMS FMP, the proposed rule and supplement, specific economic 
concerns for small entities included the time/area closure for pelagic 
longline fishermen in the Florida Straits and the northeastern United 
States, the non-ridgeback LCS quota reduction, and limited access 
measures for the swordfish and shark fisheries. Based on comments 
received, NMFS has not

[[Page 29130]]

implemented the Florida Straits closure and will convene a meeting of 
the HMS and Billfish APs to address time/area closures more 
effectively. Additionally, NMFS reduced the size of the northeastern 
United States closed area. NMFS concluded that alternative time/area 
closures could have less severe economic impacts on the pelagic 
longline fishery participants while addressing the bycatch concerns for 
BFT, undersized swordfish, and billfish.
    NMFS concluded that separation of the LCS management group into 
ridgeback and non-ridgeback LCS and reduction of the quota for non-
ridgeback LCS was the best alternative to rebuild overfished LCS stocks 
while minimizing adverse economic impacts on LCS fishermen because it 
allows higher harvest levels than those maintained if the LCS 
management group were kept as a single group. 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 some 
participants may cease business operations due to this action, but that 
more may cease operations under other alternatives that would not 
minimize economic impacts to this extent.
    The limited access system implemented in this final rule affects 
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 current tuna longline 
fishermen would automatically receive a swordfish or shark limited 
access permit to authorize landing of incidental catch. Based on 
comments received, NMFS adjusted the qualifying criteria to further 
reduce the likelihood of removing any active entity dependent on the 
fishery.
    In summary, the final regulatory flexibility analyses found that, 
overall, the final actions for bluefin tuna and swordfish rebuilding 
and the bluefin tuna time/area closure may have some negative economic 
impact. In addition, the combination of final actions for sharks (quota 
reductions, minimum sizes, retention limits, and counting dead discards 
and state landings after Federal closures against Federal quotas) may 
result in the elimination of the directed commercial fisheries for 
large coastal sharks, and may substantially impact commercial fisheries 
for pelagic sharks and small coastal sharks in the U.S. exclusive 
economic zone. In addition, because these regulations will have a 
significant impact on commercial fishermen, the HMS FMP will likely 
also impact related parties and communities such as processors and 
bait/gear suppliers. Some of the final actions (the mid-Atlantic time/
area closure, vessel monitoring system) may increase costs.
    However, as a group, the final actions in the HMS FMP were 
specifically chosen both to minimize any economic impacts to the extent 
practicable and to meet the goals of the HMS FMP and the Magnuson-
Stevens Act, namely to prevent overfishing and rebuild overfished 
stocks. In the long term, the economic impacts endured now will be less 
than the economic impacts endured if HMS fisheries continue to decline 
and become commercially extinct.
    The RIR/FRFA for the HMS FMP provides further discussion of the 
economic effects of all the alternatives considered in the final HMS 
FMP. A copy of the FRFA is available from NMFS (see ADDRESSES).
    To ensure that the impacts of the Amendment 1 to the Atlantic 
Billfish FMP were fully analyzed, NMFS 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. 
Aspects of the proposed rule that could have affected small entities in 
the billfish fisheries included a retention limit of one Atlantic 
billfish per vessel per trip and a provision that would reduce the 
retention limit for blue and/or white marlin to zero if landing limits 
were reached. NMFS received comments 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. NMFS concluded that the alternative of minimum size limits 
with the possibility of increased size limits through framework 
regulatory adjustments could restrict landings to the allowable level 
without undue economic impacts.
    The RIR/FRFA for Amendment 1 to the Atlantic Billfish FMP provides 
further discussion of the economic impacts of all the alternatives 
considered. A copy of the RIR/FRFA is available from NMFS (see 
ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with, a collection-of-information subject to the requirements 
of the Paperwork Reduction Act (PRA), unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) control number.
    This final rule contains new and revised collection-of-information 
requirements, subject to review and approval by OMB under the PRA, and 
restates several previously approved requirements. In particular, five 
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 gillnet 
gear, and for handgear and harpoon floats; permits for all HMS Charter/
Headboat vessels; logbooks for all Atlantic tuna vessels and HMS 
Charter/Headboat vessels; and revised reporting procedures for exempted 
fishing permits. The following specific reporting and recordkeeping 
requirements have been approved by OMB or are pending OMB approval (as 
noted):
    1. Requirement for HMS Charter/Headboat permits in Sec. 635.4, 
estimated at 30 minutes per initial permit application and 6 minutes 
per renewal, will be submitted for OMB clearance. NMFS reserves the 
effective date of the requirement until OMB approval is obtained.
    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, have 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 Atlantic 
swordfish and sharks in Sec. 635.5 (approved under OMB control numbers 
0648-0013) estimated at 15 minutes per bi-weekly report of fish 
purchases and 3 minutes per negative report. Importer reporting

[[Page 29131]]

requirements for swordfish in Sec. 635.5, estimated at 15 minutes per 
bi-weekly report, have 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 a negative catch report 
or a no-fishing report. OMB has approved (0648-0371) a request from 
NMFS to consolidate the swordfish and shark logbooks with new vessel 
reporting requirements for Atlantic tunas and HMS charter/headboats 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/headboats 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 approved by 
OMB under control number 0648-0373.
    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 approved by OMB under control number 0648-0373.
    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 been approved by OMB under control number 
0648-0374.
    12. Position reporting and communication from a vessel monitoring 
system in Sec. 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 approved by OMB under control number 
0648-0372.
    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 and reporting by commercial 
vessels of large medium and giant BFT that are not sold to dealers as 
required in Sec. 635.5 (approved under OMB control number 0648-0239) 
are 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) is 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, has been approved under OMB control number 
0648-0363. 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.
    18. Revised application and reporting requirements for 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 approved by OMB under control number 0648-0309.
    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.
    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 will 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.
    The AA, under 5 U.S.C. 553(d)(3), finds that it would be contrary 
to the public interest to delay the effective date of the billfish 
minimum size limits, the pelagic longline time/area closure, and the 
bluefin tuna quota and effort control specifications for 30 days. The 
AA finds that these measures are necessary to initiate rebuilding of 
overfished stocks, to manage fisheries that are currently active, and 
to comply with international obligations.
    Given NMFS' ability to rapidly communicate these regulations to 
fishing interests through the FAX network, NOAA weather radio, and HMS 
Infoline, the AA has determined there is good cause for a waiver of the 
30-day delay in the effective date because such delay would be contrary 
to the public good. The AA is delaying the effective dates of the VMS 
and charter boat and headboat permit requirements, and the effective 
dates of these requirements are listed above.
    NMFS requested a formal consultation under section 7 of the ESA on 
the HMS fisheries as managed under the HMS FMP and Billfish Amendment. 
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 and ALWTRP measures for the southeast shark gillnet fishery. In 
a BO issued on April 23, 1999, NMFS concluded that: (1) continued 
operation of the shark gillnet fishery may adversely affect, but with 
management measures previously implemented under the ALWTRP and 
contained in the HMS FMP, is not likely to jeopardize the continued 
existence of the north Atlantic right whale; (2) continued operation of 
the shark gillnet fishery may adversely affect, but is not likely to 
jeopardize the continued existence of humpback, fin or sperm whales, or 
Kemp's ridley, green, loggerhead, hawksbill or leatherback sea turtles; 
(3) continued operation of the pelagic longline and purse seine

[[Page 29132]]

fisheries may adversely affect, but is not likely to jeopardize the 
continued existence of any endangered or threatened species under NMFS 
jurisdiction; and (4) continued operation of the HMS handgear fisheries 
may adversely affect, but is not likely to jeopardize the continued 
existence of any endangered or threatened species under NMFS 
jurisdiction.
    NMFS also concluded that no component of the HMS fisheries would 
result in adverse modification of critical habitat designated for the 
northern right whale. These conclusions are based upon the 
effectiveness of measures implemented in this final rule, the 
attainment of adequate observer coverage in applicable fisheries, and 
full implementation of the requirements of the May 29, 1997 BO as 
amended on August 5 and 29, 1997, and July 10, 1998.
    NMFS has determined that the final actions in these plans are 
consistent to the maximum extent practicable with the coastal zone 
management programs of those Atlantic, Gulf of Mexico, and Caribbean 
coastal states that have approved coastal zone management programs. The 
draft HMS FMP, draft Billfish Amendment, and draft Addendum to the HMS 
FMP were submitted to the responsible state agencies for their review 
under Section 307 of the Coastal Zone Management Act. The States of New 
York, Virginia, North Carolina, South Carolina, Mississippi, and 
Louisiana certified that the HMS FMP and Billfish Amendment concur with 
their applicable CZMA regulations. The States of Rhode Island and 
Delaware certified that the HMS FMP concurs with their applicable CZMA 
regulations. The States of Massachusetts, Connecticut, Pennsylvania, 
New Jersey, Georgia, and Texas certified that the Billfish Amendment 
concurs with their applicable CZMA regulations. The States of 
Pennsylvania, Virginia, and Georgia certified that the Addendum to the 
HMS FMP concurs with their applicable CZMA regulations. NMFS presumes 
that the remaining states that did not respond also concur.
    The State of Georgia objected to the HMS FMP based on the 
continuing operation of the southeast shark drift gillnet fishery in 
Federal waters off its state waters. NMFS shares the State of Georgia's 
concern regarding bycatch and bycatch mortality rates in this fishery 
and is gathering information on the effect of drift gillnets in 
Atlantic shark fisheries on protected species, juvenile sharks, and 
other finfish. However, because the limited data available at this time 
do not indicate high bycatch and bycatch mortality of protected 
species, juvenile sharks, and other finfish in the shark drift gillnet 
fishery, and because bycatch of endangered species in this fishery is 
regulated under the Endangered Species Act already, NMFS is not 
prohibiting use of this gear in shark fisheries at this time, 
consistent with National Standard 2 which requires that management 
measures be based on the best scientific information available. In the 
HMS FMP, NMFS requires 100-percent observer coverage in the southeast 
shark drift gillnet fishery at all times to increase data on catch, 
effort, bycatch and bycatch mortality rates in this fishery. Thus, the 
final action is consistent with Georgia's Coastal Zone Plan to the 
maximum extent practicable. NMFS encourages the State of Georgia to 
submit any data collected through state activities and will continue to 
work with the State to address the issues with this fishery.
    This final rule has been determined to be significant for purposes 
of E.O. 12866.
    NMFS prepared a FEIS for the HMS FMP and an FEIS for the Billfish 
FMP Amendment. The Environmental Protection Agency published the notice 
of availability of the FEIS for the HMS FMP on March 19, 1999, and the 
notice of availability of the FSEIS for the Atlantic billfish FMP 
amendment on March 26, 1999. Although the FMP and amendment discuss 
concerns with safety at sea, the final actions are not expected to have 
any substantial adverse impacts on public health or safety. The 
cumulative long-term impact of the final actions is to establish 
sustainable fisheries for Atlantic tunas, swordfish, sharks, and 
billfish. In the case of overfished stocks (west Atlantic bluefin tuna, 
bigeye tuna, north Atlantic swordfish, large coastal sharks, blue 
marlin, white marlin and sailfish), achievement of this long-term goal 
is dependent upon rebuilding the stocks. The final actions will not 
jeopardize the productive capacity of the target species. Although in 
some cases the final actions may cause an increase in fishing pressure 
on non-target stocks, such as dolphin and wahoo, these effects have 
been considered and are not expected to jeopardize the productive 
capacity of the non-target fish species. Furthermore, the final actions 
are not expected to have any adverse effects on ocean and coastal 
habitats. The measures established in this final rule are expected to 
reduce the rate of serious injury and mortality caused to marine 
mammals by the pelagic longline and shark drift gillnet fisheries and 
are not expected to result in cumulative adverse impacts that might 
have a substantial effect on endangered and threatened species. In 
fact, the over-arching goal of the FMP and the Atlantic billfish FMP 
amendment is to implement rebuilding plans to reduce directed and 
bycatch mortality rates for overfished stocks Atlantic-wide and to 
manage healthy stocks for the optimum yield. As no significant negative 
environmental impacts are expected to result from the final actions, no 
mitigating measures are adopted.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 285

    Fisheries, Fishing, Penalties, Reporting and recordkeeping 
requirements, Treaties.

50 CFR Part 300

    Exports, Fish, Fisheries, Fishing, Imports, Labeling, Marine 
resources, Penalties, Reporting and recordkeeping requirements, 
Transportation, Treaties, and Wildlife.

50 CFR Parts 600, 630, 635, 644, and 678

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

    Dated: May 18, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 15 CFR chapter IX and 50 
CFR chapters II, III, and VI are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. Effective July 1, 1999, in Sec. 902.1, paragraph (b), the table 
is amended by removing, in the left column under 50 CFR, all of the 
entries for parts 285, 630, 644, and 678, and, in the right column in 
corresponding positions, the control numbers, and by adding, in 
numerical order, the following entries to read as follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *

[[Page 29133]]

    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (All numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
 
                  *        *        *        *        *
50 CFR
 
                  *        *        *        *        *
300.27                                      -0040
 
                  *        *        *        *        *
635.4(d)                                    -0327 and -0205
635.4(g)                                    -0202 and -0205
635.5(a)                                    -0371 and -0328
635.5(b)                                    -0013 and -0239
635.5(c)                                    -0339
635.5(d)                                    -0328
635.5(e)                                    -0323
635.6(c)                                    -0373
635.7(c)                                    -0374
635.16                                      -0325
635.21(d)                                   -0202
635.26                                      -0247
635.31(b)                                   -0216
635.32                                      -0309
635.33                                      -0338
635.42                                      -0040
635.43                                      -0040
635.44                                      -0040
635.46(b)                                   -0363
635.69(a)                                   -0372
 
                  *        *        *        *        *
------------------------------------------------------------------------

50 CFR Chapter II

PART 285--ATLANTIC TUNAS FISHERIES [REMOVED]

    3. Under the authority of 16 U.S.C. 971 et seq., part 285 is 
removed effective July 1, 1999 except that Sec. 285.22 is removed and 
reserved effective May 24, 1999.

50 CFR Chapter III

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    4. The authority citation for part 300 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 951-961 and 971 et 
seq.; 16 U.S.C. 973-973r; 16 U.S.C. 2431 et seq.; 16 U.S.C. 3371-
3378; 16 U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 U.S.C. 1801 
et seq.

    5. Effective July 1, 1999, in Sec. 300.21, the definition for 
``tag'' is revised to read as follows:


Sec. 300.21  Definitions.

* * * * *
    Tag means the dealer tag, a flexible self-locking ribbon issued by 
NMFS for the identification of bluefin tuna under Sec. 300.26, or the 
BSD tag specified under Sec. 635.42 (a)(2) of this title.
* * * * *


Secs. 300.24,  300.25, and 300.26 [Amended]

    6. Effective July 1, 1999, in Secs. 300.24, 300.25 and 300.26, the 
term ``the Regional Director'', wherever it appears, is replaced by 
``NMFS''.
    7. Effective July 1, 1999, in Sec. 300.25, paragraph (a)(1) is 
revised to read as follows:


Sec. 300.25  Pacific bluefin tuna--Dealer recordkeeping and reporting.

* * * * *
    (a) * * *
    (1) The report required to be submitted under this paragraph (a) 
must be postmarked within 10 days after the end of each 2-week 
reporting period in which Pacific bluefin tuna were exported. The bi-
weekly reporting periods are defined as the first day to the 15th day 
of each month and the 16th day to the last day of the month.
* * * * *
    8. Effective July 1, 1999, in Sec. 300.26, paragraph (d) is revised 
to read as follows:


Sec. 300.26  Pacific bluefin tuna--Tags.

* * * * *
    (d) Removal. A NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer under paragraph (c) 
of this section or any tag affixed to any Pacific bluefin tuna to meet 
the requirements of Sec. 635.42(a)(2) of this title must remain on the 
tuna until the tuna is cut into portions. If the tuna or tuna parts 
subsequently are packaged for transport for domestic commercial use or 
for export, the number on each tag attached to each tuna or its parts 
must be written legibly and indelibly on the outside of any package or 
container.
* * * * *
    9. Effective July 1, 1999, Sec. 300.27 is revised to read as 
follows:


Sec. 300.27  Pacific bluefin tuna--Documentation requirements.

    Bluefin tuna imported into, or exported or re-exported from the 
customs territory of the United States is subject to the documentation 
requirements specified in Secs. 635.41 through 635.44 of this title.
    10. Effective July 1, 1999, in Sec. 300.28, paragraphs (b) and(c) 
are revised to read as follows:


Sec. 300.28  Pacific bluefin tuna--Prohibitions.

* * * * *
    (b) Remove any NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer or any tag affixed 
to a Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2) 
of this title, before removal is allowed under Sec. 300.26, or fail to 
write the tag number on the shipping package or container as specified 
in Sec. 300.26.
    (c) Reuse any NMFS-issued numbered tag affixed to a Pacific bluefin 
tuna at the option of a permitted dealer or any tag affixed to a 
Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of 
this title or reuse any tag number previously written on a shipping 
package or container as prescribed by Sec. 300.26.

50 CFR Chapter VI

PART 600-MAGNUSON-STEVENS ACT PROVISIONS

    11. 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.

    12. Effective July 1, 1999, in Sec. 600.10, the definition for 
``Drift gillnet'' is removed and the definitions for ``Albacore'', 
``Angling'', ``Atlantic tunas'', ``Atlantic Tunas Convention Act'', 
``Bigeye tuna'', ``Billfish'', ``Bluefin tuna'', ``Blue marlin'', 
``Carcass'', ``Catch limit'', ``Charter boat'', ``Fillet'', ``Fish 
weir'', ``Headboat'', ``Land'', ``Longbill spearfish'', ``Postmark'', 
``Purchase'', ``Round'', ``Sailfish'', ``Sale or sell'', ``Skipjack 
tuna'', ``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, attempting to fish for, catching or 
attempting to catch 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, albacore, bigeye, skipjack, and 
yellowfin tunas 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.
* * * * *

[[Page 29134]]

    Carcass means a fish in whole condition or that portion of 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 boat 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.
* * * * *
    Postmark means independently verifiable evidence of the date of 
mailing, such as a U.S. Postal Service postmark, 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.
* * * * *
    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.
* * * * *
    Skipjack tuna means the species Katsuwonus pelamis, or a part 
thereof.
* * * * *
    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.

    13. Effective July 1, 1999, Sec. 600.15 is amended by redesignating 
paragraphs (a)(7) through (a)(11) as paragraphs (a)(11) through 
(a)(15), respectively, by redesignating paragraphs (a)(2) through 
(a)(6) as paragraphs (a)(5) through (a)(9), respectively, 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 occurs 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.
* * * * *
    14. Effective July 26, 1999, in Sec. 600.725, paragraph (v), the 
table is amended by revising all entries under the last subheading 
``Secretary of Commerce'' to read as follows:


Sec. 600.725  General prohibitions.

* * * * *
    (v) * * *

----------------------------------------------------------------------------------------------------------------
                     Fishery                                           Allowable gear types
----------------------------------------------------------------------------------------------------------------
 
                  *                  *                  *                  *                  *
----------------------------------------------------------------------------------------------------------------
                                              Secretary of Commerce
----------------------------------------------------------------------------------------------------------------
Atlantic Tunas, Swordfish and Sharks FMP:
    A. Swordfish handgear fishery...............  A. Rod and reel, harpoon, handline, bandit gear.
    B. Pelagic longline fishery.................  B. Longline.
    C. Shark drift gillnet fishery..............  C. Gillnet.
    D. Shark bottom longline fishery............  D. Longline.
    E. Shark handgear fishery...................  E. Rod and reel, handline, bandit gear.
    F. Tuna purse seine fishery.................  F. Purse seine.
    G. Tuna recreational fishery................  G. Rod and reel, handline.
    H. Tuna handgear fishery....................  H. Rod and reel, harpoon, handline, bandit gear.
    I. Tuna harpoon fishery.....................  I. Harpoon.
Atlantic Billfish FMP:
    Recreational fishery........................  Rod and reel.
----------------------------------------------------------------------------------------------------------------

PART 630--ATLANTIC SWORDFISH FISHERY [REMOVED]

    15. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801 
et seq., part 630 is removed effective July 1, 1999.
    16. Part 635 is added and is effective July 1, 1999, except that 
Sec. 635.25 is effective May 24, 1999, Sec. 635.69 is effective 
September 1, 1999, and Sec. 635.4(b) will be effective on a date to be 
announced and published after OMB approves the information collection 
requirements, to read as follows:

[[Page 29135]]

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

Subpart A--General

Sec.
635.1 Purpose and scope.
635.2 Definitions.
635.3 Relation to other laws.
635.4 Permits and fees.
635.5 Recordkeeping and reporting.
635.6 Vessel and gear identification.
635.7 At-sea observer coverage.

Subpart B--Limited Access

635.16 Limited access permits.

Subpart C--Management Measures

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.
635.25 Interim Provisions
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.
635.47 Ports of entry.

Subpart E--International Port Inspection

635.50 Basis and purpose.
635.51 Authorized officer.
635.52 Vessels subject to inspection.
635.53 Reports.

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) The regulations in this part govern the conservation and 
management of Atlantic tunas, Atlantic billfish, Atlantic sharks, 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 the Fishery Management Plan for Atlantic 
Billfishes. The Atlantic tunas regulations govern conservation and 
management of Atlantic tunas in the management unit. The Atlantic 
billfish regulations govern conservation and management of Atlantic 
billfish in the management unit. The Atlantic 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 
shark regulations govern conservation and management of sharks in the 
management unit, solely under the authority of the Magnuson-Stevens 
Act. Sharks are managed under the authority of the Magnuson-Stevens 
Act.
    (b) Under section 9(d) of ATCA, NMFS has determined that the 
regulations contained in this part with respect to Atlantic tunas are 
applicable within the territorial sea of the United States adjacent to, 
and within the boundaries of, the States of New Hampshire, 
Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, 
Louisiana and Texas, and the Commonwealths of Puerto Rico and the 
Virgin Islands. NMFS will undertake a continuing review of State 
regulations to determine if regulations applicable to Atlantic tunas, 
swordfish or billfish are at least as restrictive as regulations 
contained in this part and if such regulations are effectively 
enforced. In such case, NMFS will file with the Office of the Federal 
Register for publication notification of the basis for the 
determination and of the specific regulations that shall or shall not 
apply in the territorial sea of the identified State.


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 
following meanings. If applicable, the terms used in this part 
supercede those used in Sec. 600.10:
    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.
    ATCA Certificate of Eligibility (COE) means the certificate that 
must accompany any applicable shipment of fish pursuant to a finding 
under 16 U.S.C. 971d (c)(4) or (c)(5).
    Atlantic HMS means Atlantic tunas, billfish, 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.
    BFT landings quota means the portion of the ICCAT BFT catch quota 
allocated to the United States against which landings of BFT are 
counted.
    Billfish Certificate of Eligibility (COE) means a certificate that 
accompanies a shipment of billfish indicating that the billfish or 
related species, or parts thereof, are not from the respective Atlantic 
Ocean management units.
    BSD tag means a numbered tag affixed to a BFT issued by any country 
in conjunction with a catch statistics information program and recorded 
on a BSD.
    Caudal keel means the horizontal ridges along each side of a fish 
at the base of the tail fin.
    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 point on the cleithrum that 
provides the shortest possible measurement along the body contour to 
the anterior portion of the caudal keel. The cleithrum is the 
semicircular bony structure at the posterior edge of the gill opening.
    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 
that allows for 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 embedded 
in a fish in order to release the fish with minimum damage.
    Designated by NMFS means the address or location indicated in a 
letter to permit holders or in a letter accompanying reporting forms.
    Division Chief means the Chief, Highly Migratory Species Management 
Division, NMFS (F/SF1), 1315 East-West

[[Page 29136]]

Highway, Silver Spring, MD, 20910; (301) 713-2347.
    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. The downrigger 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 process a fish by removal of 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 or to Sec. 635.32.
    Eviscerated means a fish that has only the alimentary organs 
removed.
    Export means a shipment 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 required to be filed, is not 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.
    Finlet means one of the small individual fins on a tuna located 
behind the second dorsal and anal fins and forward of the tail fin.
    First transaction in the United States means the time and place at 
which a fish 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 of a 
fishing vessel, as well as all records of catching, harvesting, 
transporting, landing, purchasing, or selling a fish.
    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 sharks--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.
    Giant BFT means an Atlantic BFT measuring 81 inches (206 cm) CFL or 
greater.
    Handgear means handline, harpoon, rod and reel or bandit gear.
    High-flyer means a flag, radar reflector, or radio beacon 
transmitter attached to a longline.
    Highly migratory species (HMS) means bluefin, bigeye, yellowfin, 
albacore, and skipjack tunas; swordfish; 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 filing by 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 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 
by any authorized electronic medium.
    Intermediate country means a country that exports to another 
country 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 (LCS) 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 at least 73 inches (185 cm) 
and less than 81 inches (206 cm) CFL.
    Large school BFT means a BFT measuring at least 47 inches (119 cm) 
and less than 59 inches (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 unit means in this part:
    (1) For Atlantic tunas, longbill spearfish, blue marlin and white 
marlin, means all fish of these species in the Atlantic Ocean;
    (2) For sailfish, means all fish of this species in the Atlantic 
Ocean west of 30 deg. W. long.;
    (3) For North Atlantic swordfish, means all fish of this species in 
the Atlantic Ocean north of 5 deg. N. lat.;
    (4) For South Atlantic swordfish, means all fish of this species in 
the Atlantic Ocean south of 5 deg. N. lat.; and
    (5) For sharks, means all fish of these species in the western 
north Atlantic Ocean, including the Gulf of Mexico and the Caribbean 
Sea.
    Mid-Atlantic Bight means the area bounded by straight lines 
connecting the mid-Atlantic states' internal waters and extending to 
71 deg. W. long. between 35 deg. N. lat. and 43 deg. N. lat.
    Non-ridgeback large coastal 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 occurring in the Atlantic Ocean north of 5 deg. N. lat.
    Northeastern United States closed area means the area bounded by 
straight lines connecting the following coordinates in the order 
stated: 40 deg.00' N. lat., 74 deg.00' W. long.; 40 deg.00' N. lat., 
68 deg.00' W. long.; 39 deg.00' N. lat., 68 deg.00' W. long.; and 
39 deg.00' N. lat., 74 deg.00' W. long.
    Operator, with respect to any vessel, means the master or other 
individual aboard and in charge of that vessel.
    Pectoral fin means the fin located behind the gill cover on either 
side of a fish.
    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.
    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 which a General category permit for Atlantic Tunas has been 
issued may not fish for, possess, or retain a BFT.
    Ridgeback large coastal 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 at least 27 inches (69 cm) and 
less than 47 inches (119 cm) CFL.

[[Page 29137]]

    Shark means one of the oceanic species, or a part thereof, listed 
in Tables 1 and 2 in Appendix A to this part.
    Small coastal shark (SCS) 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 at least 59 inches (150 cm) 
and less than 73 inches (185 cm) CFL.
    South Atlantic swordfish or south Atlantic swordfish stock means 
those swordfish occurring in the Atlantic Ocean south of 5 deg. N. lat.
    Swordfish 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.
    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 or landing such fish.
    Tournament operator means a person or entity responsible for 
maintaining records of participants and results used for awarding 
tournament points or prizes, regardless of whether fish are retained.
    Trip limit means the total allowable take from a single trip as 
defined in Sec. 600.10 of this chapter.
    Weighout slip means a document provided to the owner or operator of 
the vessel by a person who weighs fish or parts thereof that are landed 
from a fishing vessel. 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 Sec. 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. 635.32.


Sec. 635.4  Permits and fees.

    Information on permits and permit requirements may be obtained from 
the Division Chief or where otherwise stated in this part.
    (a) General. (1) Authorized activities. Each permit issued by NMFS 
authorizes certain activities, and persons may not conduct these 
activities without the appropriate permit, unless otherwise authorized 
by NMFS in accordance with this part.
    (2) Vessel permit inspection. 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 Atlantic tunas, when 
engaged in commercial or recreational fishing, and to fish for, take, 
retain or possess Atlantic swordfish or sharks when engaged in 
commercial fishing. The vessel operator and must make such permit 
available for inspection upon request by NMFS or a person authorized by 
NMFS. The owner 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) Property rights. Limited access vessel permits or any other 
permit 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, 
limited access vessel 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) Dealer permit inspection. 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.
    (5) Display upon offloading. 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 any 
applicable landing report specified at Sec. 635.5(a)(1), (a)(2) and 
(b)(2)(i).
    (6) 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.
    (7) Alteration. A vessel or dealer permit that is altered, erased, 
mutilated, or otherwise modified is invalid.
    (8) Replacement. NMFS may issue a replacement permit upon the 
request of the permittee. An application for a replacement permit will 
not be considered a new application. An appropriate fee, consistent 
with paragraph (b) of this section, may be charged for issuance of the 
replacement permit.
    (9) Fees. NMFS may charge a fee for each application for a permit 
or for 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.
    (b) HMS Charter/Headboat Permits. (1) The owner of a charter boat 
or headboat used to fish for, take, retain, or possess any Atlantic HMS 
must obtain an HMS Charter/Headboat permit.
    (2) While persons aboard a vessel that has been issued an HMS 
Charter/Headboat permit are fishing for or are in possession of 
Atlantic HMS, the operator of the vessel must have a valid Merchant 
Marine License or Uninspected Passenger Vessel License, as applicable, 
issued by the U.S. Coast Guard pursuant to regulations at 46 CFR part 
10. Such Coast Guard license must be carried on board the vessel.
    (c) [Reserved.]
    (d) Atlantic Tunas vessel permits. (1) The owner 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, a permit in one and only one of the following categories: 
Angling, Charter/Headboat, General, Harpoon, Longline, Purse Seine, or 
Trap.

[[Page 29138]]

    (2) Persons aboard a vessel with a valid Atlantic Tunas vessel 
permit or a valid HMS Charter/Headboat permit may fish for, take, 
retain, or possess Atlantic tunas, but only in compliance with the 
quotas, catch limits, size classes, and gear 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 or is a valid HMS Charter/
Headboat permit. Persons may not sell Atlantic tunas caught on board a 
vessel issued 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) A person can obtain an Atlantic Tunas Longline category permit 
for a vessel only if the owner of the vessel has both a limited access 
permit for shark and a limited access permit for swordfish.
    (5) An owner of a vessel with an Atlantic Tunas permit in the Purse 
Seine category may transfer the permit to another purse seine vessel 
that he or she owns. In either case, the owner must submit a written 
request for transfer to NMFS, to an address designated by NMFS, and 
attach an application for the new vessel and the existing permit. NMFS 
will issue no more than 5 Atlantic Tunas Purse Seine category permits.
    (e) Shark vessel LAPs. (1) As of July 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.
    (2) The owner of each vessel used to fish for or take Atlantic 
sharks or on which Atlantic sharks are retained, possessed with an 
intention to sell, or 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 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 retention limits intends to sell the sharks.
    (3) A commercial limited access permit for sharks is not required 
if the vessel is recreational fishing and retains no more sharks than 
the recreational retention limit, is operating pursuant to the 
conditions of a shark EFP, or that fishes exclusively within state 
waters.
    (4) An owner 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, persons aboard the vessel must abide by 
the state's more restrictive regulations.
    (f) Swordfish vessel LAPs.
    (1) The owner of each vessel used to fish for or take Atlantic 
swordfish or on which Atlantic swordfish are retained, possessed with 
an intention to sell, or 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) As of July 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.
    (3) A commercial Federal permit for swordfish is not required if 
the vessel is recreational fishing.
    (4) Unless the owner has been issued a swordfish handgear permit, a 
limited access permit for swordfish is valid only when the vessel has 
on board a valid commercial limited access permit for shark and a valid 
Atlantic Tunas Longline category permit for such vessel.
    (g) Dealer permits--(1) Atlantic tunas. A person that receives, 
purchases, trades for, or barters for Atlantic tunas from a fishing 
vessel of the United States or who imports or exports bluefin tuna, 
regardless of ocean area of origin, must possess a valid dealer permit.
    (2) Shark. A person that receives, purchases, trades for, or 
barters for Atlantic sharks from a fishing vessel of the United States 
must possess a valid dealer permit.
    (3) Swordfish. A person that receives, purchases, trades for, or 
barters for Atlantic swordfish from a fishing vessel of the United 
States or who imports swordfish, regardless of origin, must possess a 
valid dealer permit. Importation of swordfish by nonresident 
corporations is restricted to those entities authorized under 19 CFR 
141.18.
    (h) Applications for permits. An owner of a vessel or a dealer must 
submit to NMFS, at an address designated by NMFS, 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 NMFS.
    (1) Atlantic tunas vessel permits. (i) An applicant 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 applicant must also submit a copy of the vessel's valid 
U.S. Coast Guard documentation or, if not documented, a copy of its 
valid state registration 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 an address 
designated by NMFS.
    (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 necessary 
to identify the company, its principal place of business, and 
mechanisms by which the company can be contacted.
    (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 
requested on the application form.
    (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.

[[Page 29139]]

    (i) Change in application information. A vessel owner 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 NMFS, to an address designated by NMFS with the 
issuance of each permit. In the case of a vessel permit for Atlantic 
tunas or an HMS Charter/Headboat permit, the vessel owner or operator 
must report the change by phone or internet to a number or website 
designated by NMFS. 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 information 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) NMFS 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, including all reports and fishing or catch information 
required to be submitted under this part.
    (2) NMFS will notify the applicant of any deficiency in the 
application, including failure to provide information or reports 
required to be submitted under this part. 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 will be 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 dealer; it 
is valid only for the vessel and owner or dealer to whom 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; 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 by a copy of 
a signed bill of sale or equivalent acquisition papers.
    (2) Shark and swordfish LAPs. (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 
may transfer a shark or swordfish ILAP or LAP to another vessel that he 
or she owns or to another person. Directed handgear ILAPs and LAPs may 
be transferred to another vessel but only for use with handgear and 
subject to the 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 (l)(2)(iii) of this 
section.
    (ii) An owner may upgrade a vessel with a commercial swordfish or 
shark limited access permit, or transfer the limited access permit to 
another vessel, and be eligible to retain or renew a limited access 
permit only if the upgrade or transfer does not result in an increase 
in horsepower of more than 20 percent or an increase of more than 10 
percent in length overall, gross registered tonnage, or net tonnage 
from the vessel baseline specifications.
    (A) The vessel baseline specifications are the respective 
specifications (length overall, gross registered tonnage, net tonnage, 
horsepower) of the vessel that was issued an initial limited access 
permit.
    (B) The vessel's horsepower may be increased only once throughout 
the validity of each permit, whether through refitting, replacement, or 
transfer. Such an increase may not exceed 20 percent of the horsepower 
of the vessel's baseline specifications, as applicable.
    (C) The vessel's length overall, gross registered tonnage, and net 
tonnage may be increased only once throughout the validity of each 
permit, whether through refitting, replacement, or transfer. Any 
increase in any of these three specifications of vessel size may not 
exceed 10 percent of the vessel's baseline specifications, as 
applicable. If any of these three specifications is increased, any 
increase in the other two must be performed at the same time. This type 
of upgrade may be done separately from an engine horsepower upgrade.
    (iii) No person may own or control more than 5 percent of the 
vessels for which swordfish directed commercial permits have been 
issued or more than 5 percent of the vessels for which shark directed 
commercial permits have been issued.
    (iv) In order to transfer an ILAP or LAP to a replacement vessel, 
the owner of the vessel issued the ILAP or LAP pursuant to this part 
must request NMFS, at an address designated by NMFS, to transfer the 
ILAP or LAP to another vessel, 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 NMFS with a complete 
application for a LAP, as specified in paragraph (h) of this section, 
for the replacement vessel. Copies of both vessels' U.S. Coast Guard 
documentation or state registration must accompany the application.
    (v) For ILAP or LAP transfers to a different person, the transferee 
of an ILAP or LAP must request NMFS, at an address designated by NMFS, 
to transfer the original ILAP or LAP, subject to requirements specified 
in paragraphs (l)(2)(ii) and (l)(2)(iii) of this section, if 
applicable. The following must accompany the completed application: The 
original ILAP or LAP with signatures of both parties to the transaction 
on the back of the permit, the bill of sale of the ILAP or LAP. A 
person must include copies of both vessels' U.S. Coast Guard 
documentation or state registration for ILAP or LAP transfers involving 
vessels.
    (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 NMFS, at an address designated by NMFS, to transfer 
the ILAP or LAP, subject to requirements specified in paragraphs 
(l)(2)(ii) and (l)(2)(iii) of this section, if applicable. The 
following must accompany the completed application: The original ILAP 
or LAP with signatures of both parties to the transaction on the back 
of the permit, the bill of sale of the ILAP or LAP and the vessel, and 
a copy of the vessel's U.S. Coast Guard documentation or state 
registration.
    (vii) The owner of a vessel issued an ILAP or LAP who sells the 
permitted vessel, but retains the ILAP or LAP, must notify NMFS within 
30 days after the sale of the change in application information in 
accordance with paragraph (i) of this section. If the owner 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 tunas Longline category 
permit are required to retain swordfish. Accordingly, a LAP for 
swordfish obtained by transfer without

[[Page 29140]]

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.
    (ix) As specified in paragraph (d)(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 tunas Longline category 
permit are required to retain Atlantic tunas. Accordingly, an Atlantic 
tunas Longline category permit obtained by transfer without either a 
directed or incidental catch swordfish or shark LAP will not entitle an 
owner or operator to use a vessel to fish in the Atlantic tunas 
fishery.
    (m) Renewal--(1) General. Persons must apply annually for a vessel 
or dealer permit for Atlantic tunas, sharks and swordfish, and HMS 
Charter/Headboats. Persons must apply annually for an Atlantic tunas or 
HMS Charter/headboat vessel permit. A renewal application must be 
submitted to NMFS, at an address designated by NMFS, 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, including those described in Sec. 635.4 
(l)(2), all reports required under the Magnuson-Stevens Act have been 
submitted, including those described in ' 635.5, and the applicant is 
not subject to a permit sanction or denial under paragraph (a)(6) of 
this section.
    (2) Shark and swordfish LAPs. As of June 1, 2000, the owner 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 ' 635.4(e) and (f). However, any ILAP that 
expires on June 30, 2000, is valid through June 29, 2000. Only valid 
ILAP or LAP holders in the preceding year are eligible for renewal of a 
LAP. ILAP and LAP holders who have transferred their permits are not 
eligible for renewal.


Sec. 635.5  Recordkeeping and reporting.

    Information on HMS vessel and dealer reporting requirements may be 
obtained from the Division Chief or where otherwise stated in this 
part.
    (a) Vessels--(1) Logbooks. If an owner 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(c), (d), 
(e), or (f), is selected for logbook reporting in writing by NMFS, he 
or she must maintain and submit a fishing record on a logbook specified 
by NMFS. Entries are required regarding 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 48 hours of completing 
that day's activities and, for a 1-day trip, before offloading. The 
owner or operator of the vessel must submit the logbook form(s) 
postmarked within 7 days of offloading all Atlantic HMS.
    (2) Weighout slips. If an owner of a permitted vessel 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. A weighout slip for sharks prior to or as 
part of a commercial transaction involving shark carcasses or fins must 
record the weights of carcasses and any detached fins. The owner or 
operator must also submit copies of weighout slips with the logbook 
forms required to be submitted under paragraph (a)(1) of this section.
    (3) BFT not sold. If a person who catches and lands a large medium 
or giant BFT from a vessel issued a permit in any of the commercial 
categories for Atlantic tunas does not sell or otherwise transfer the 
BFT to a dealer who has a dealer permit for Atlantic tunas, the person 
must contact a NMFS enforcement agent, at a number designated by NMFS, 
at the time of landing such BFT, provide the information needed for the 
reports required under paragraph (b)(2)(i) of this section, and, if 
requested, make the tuna available so that a NMFS enforcement agent or 
authorized officer may inspect the fish and attach a tag to it. 
Alternatively, such reporting requirement may be fulfilled if a dealer 
who has a dealer permit for Atlantic tunas reports the BFT as being 
landed but not sold on the reports required under paragraph (b)(2)(i) 
of this section. All BFT landed but not sold will be applied to the 
quota category according to the permit category of the vessel from 
which it was landed.
    (b) Dealers. Persons who have been issued a dealer permit under 
Sec. 635.4 must submit reports to NMFS, to an address designated by 
NMFS, and maintain records as follows:
    (1) Atlantic HMS. (i) Dealers that receive Atlantic swordfish and 
Atlantic sharks from U.S. vessels must report all Atlantic tunas 
(including BFT), Atlantic swordfish and Atlantic sharks received from 
U.S. vessels on a form available from NMFS. (ii) Dealers must report 
all imports of BFT and swordfish on forms available from NMFS.
    (iii) Reports of Atlantic swordfish and shark dealers, including 
reports of imported swordfish and bluefin tuna, received on the first 
through the 15th of each month must be postmarked no later than the 
25th 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 10th 
of the following month. For swordfish imports, a dealer must attach a 
copy of each certificate of eligibility to the report required under 
paragraph (b)(1)(i) of this section. If a dealer has not received 
Atlantic swordfish or Atlantic sharks from U.S. vessels, during a 
reporting period, he or she must submit a report to NMFS, to an address 
designated by NMFS so stating, and the report must be postmarked as 
specified for the reporting period. A negative report is not necessary 
for Atlantic swordfish imports.
    (iv) The reporting requirement of paragraph (b)(1)(i) of this 
section may be satisfied by a dealer if he or she provides a copy of 
each appropriate weighout slip or sales record, provided such weighout 
slip or sales record by itself or combined with the form available from 
NMFS includes all of the required information and identifies each fish 
by species.
    (v) The dealer may mail or fax such report to an address designated 
by NMFS or may hand-deliver such report to a state or Federal fishery 
port agent designated by NMFS. If the dealer hand-delivers the report 
to a port agent, a dealer must deliver such report no later than the 
prescribed postmark date for the reporting period.
    (2) Requirements for BFT--(i) Reports of BFT. Each dealer must 
submit a completed landing report on each BFT received, to NMFS, at an 
address designated by NMFS, by electronic facsimile (fax) not later 
than 24 hours from receipt of the fish. The landing report must be 
signed by the permitted vessel's owner or operator immediately upon 
transfer of the fish and must indicate 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 
as listed on the permit are correctly recorded on the landing report. 
The dealer must also submit a bi-weekly report on forms

[[Page 29141]]

supplied by NMFS for transfers from U.S. vessels and for imports of 
BFT. For BFT received on the first through the 15th of each month, the 
dealer must submit the bi-weekly report forms to NMFS postmarked no 
later than the 25th 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 10th 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 caudal 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 the 
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) through 
(b)(1)(iii) and paragraph (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) Anglers. The owner of a vessel permitted in the Atlantic tunas 
Angling or Atlantic tunas or HMS Charter/Headboat category must report 
all BFT landed under the Angling category quota to NMFS through the 
automated catch reporting system by calling 1-888-USA-TUNA. Alternative 
BFT reporting procedures may be established by NMFS in cooperation with 
states and may include such methodologies as telephone, dockside or 
mail surveys, mail in or phone-in reports, tagging programs, or 
mandatory check-in stations. A census or a statistical sample of 
persons fishing under the Angling category may be used for these 
alternative reporting programs, and owners of selected vessels will be 
notified by NMFS or by the cooperating state agency of the requirements 
and procedures for reporting BFT. Each person so notified must comply 
with those requirements and procedures. Additionally, NMFS may 
determine that BFT landings reporting systems implemented by the 
states, if mandatory, at least as restrictive, and effectively 
enforced, are sufficient for Angling category quota monitoring. In such 
case, NMFS will file with the Office of the Federal Register for 
publication notification indicating that compliance with the state 
system satisfies the reporting requirement of this paragraph (c).
    (d) Tournament operators. A tournament operator must notify NMFS of 
the purpose, dates, and location of the tournament conducted from a 
port in an Atlantic coastal state, including the U.S. Virgin Islands 
and Puerto Rico, at least 4 weeks prior to commencement of the 
tournament. NMFS will notify a tournament operator in writing, when his 
or her tournament has been selected for reporting. The tournament 
operator that is selected must maintain and submit to NMFS a record of 
catch and effort on forms available from NMFS. Tournament operators 
must submit completed forms to NMFS, at an address designated by NMFS, 
postmarked no later than the 7th day after the conclusion of the 
tournament and must attach a copy of the tournament rules.
    (e) Inspection. Any person authorized to carry out enforcement 
activities under the regulations in this part has the 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 or an authorized person to inspect and copy 
any required reports and the records, in any form, on which the 
completed reports are based, wherever they exist. An agent of a person 
issued a vessel or dealer permit under this part, or anyone responsible 
for offloading, storing packing, or selling regulated HMS for such 
permittee, shall be subject to the inspection provisions of this 
section.
    (f) Additional data and inspection. Additional data on fishing 
effort directed at Atlantic HMS or on catch of Atlantic HMS, regardless 
of whether retained, may be collected by contractors and statistical 
reporting agents, as designees of NMFS, and by authorized officers. A 
person issued a permit under Sec. 635.4 is required to provide 
requested information about fishing activity, and a person, regardless 
of whether issued a permit under Sec. 635.4, who possesses an Atlantic 
HMS is required to make such fish or parts thereof available for 
inspection by NMFS or its designees upon request.


Sec. 635.6  Vessel and gear identification.

    (a) Vessel number. For the purposes of this section, a vessel's 
number is the vessel's official number issued by either by the U.S. 
Coast Guard or by the appropriate state agency.
    (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 gillnet, must display the vessel's 
name, registration number or Atlantic Tunas permit number on each float 
attached to a handline or harpoon and on the terminal floats and high-
flyers (if applicable) on a longline or gillnet used by the vessel. The 
vessel's name or number must be at least 1 inch (2.5 cm) in height in 
block letters or arabic numerals in a color that contrasts with the 
background color of the float or high-flyer.
    (2) An unmarked handline, harpoon, longline, or gillnet, is illegal 
and may be disposed of in an appropriate manner by NMFS or an 
authorized officer.
    (3) In addition to gear marking requirements in this paragraph 
(c)(1), provisions on gear marking for the southeast U.S. shark gillnet 
fishery to implement the Atlantic Large Whale Take Reduction Plan are 
set forth in Sec. 229.32(b) of this title.

[[Page 29142]]

Sec. 635.7  At-sea observer coverage.

    (a) Applicability. NMFS may select for observer coverage any vessel 
that has an Atlantic HMS, tunas, shark or swordfish permit issued under 
Sec. 635.4. Vessels permitted in the HMS Charter/Headboat and Atlantic 
Tunas Angling and Charter/Headboat categories will be requested to take 
observers on a voluntary basis. When selected, vessels issued any other 
permit under Sec. 635.4 are required to take observers on a mandatory 
basis.
    (b) Selection of vessels. NMFS will notify a vessel owner, in 
writing, when his or her vessel is selected for observer coverage. 
Vessels will be selected to provide information on catch, bycatch and 
other fishery data according to the need for representative samples.
    (c) Notification of trips. The owner or operator of a vessel that 
is selected under paragraph (b) of this section must notify NMFS, at an 
address designated by NMFS, before commencing any fishing trip that may 
result in the incidental catch or harvest of Atlantic HMS. Notification 
procedures and information requirements such as expected gear 
deployment, trip duration and fishing area will be specified in a 
selection letter sent by NMFS.
    (d) Assignment of observers. Once notified of a trip, NMFS will 
assign an observer for that trip based on current information needs 
relative to the expected catch and bycatch likely to be associated with 
the indicated gear deployment, trip duration and fishing area. If an 
observer is not assigned for a fishing trip, NMFS will issue a waiver 
for that trip to the owner or operator of the selected vessel. If an 
observer is assigned for a trip, the operator of the selected vessel 
must arrange to embark the observer and shall not fish for or retain 
any Atlantic HMS unless the NMFS-assigned observer is aboard. At no 
time shall a person aboard a vessel fish for Atlantic sharks with a 
gillnet or possess sharks on board a vessel with a gillnet on board 
unless a NMFS-approved observer is aboard the vessel.
    (e) Requirements. The owner or operator of a vessel on which a 
NMFS-approved observer is embarked, regardless of whether required to 
carry the observer, 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.

Subpart B-Limited Access


Sec. 635.16  Limited access permits.

    As of July 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. If the Federal commercial 
shark permit issued to the vessel owner prior to July 1, 1999, was 
based on the qualifications of the operator, then a shark limited 
access permit will be issued to the qualifying vessel owner, subject to 
the provisions in this part, with the requirement that the operator 
must be on board the vessel to fish for, take, retain, or possess 
Atlantic sharks in state or Federal waters. This requirement expires 
May 30, 2000.
    (a) Eligibility requirements for ILAPs--(1) Directed permits. To be 
eligible for a directed ILAP in the shark or swordfish fishery, a 
vessel owner must demonstrate past participation in the respective 
fishery by having--
    (i) Been the owner of a vessel that was issued a valid permit for 
the respective fishery at any time from July 1, 1994, through December 
31, 1997.
    (ii) Documented shark or swordfish landings from the respective 
federally permitted vessel that he or she owned, of at least $5,000 per 
year in value or in number per year as follows--
    (A) One hundred and two sharks per year for any 2 calendar years, 
from 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, from 
January 1, 1987, through December 31, 1997, provided the landings 
occurred when the permit was valid.
    (iii) Been the owner of a vessel in the respective fishery that--
    (A) Had a valid Federal shark permit at any time from January 1, 
1998, through December 31, 1998, or
    (B) Had a valid Federal swordfish permit at any time from June 1, 
1998, through November 30, 1998.
    (2) Incidental catch permits. To be eligible for an incidental ILAP 
in the shark or swordfish fishery, a vessel owner must demonstrate past 
participation in the respective fishery by having--
    (i) Been the owner of a vessel that was issued a valid permit for 
the respective fishery at any time from July 1, 1994, through December 
31, 1997; and
    (ii) Documented landings from the respective federally permitted 
vessel that he or she owned of at least--
    (A) Seven sharks from January 1, 1991, through December 31, 1997, 
provided the landings after July 1, 1993, occurred when the permit was 
valid; or
    (B) Eleven swordfish from January 1, 1987, through December 31, 
1997, provided the landings occurred when the permit was valid; and
    (iii) Been the owner of a vessel in the respective fishery that--
    (A) Had a valid Federal shark permit at any time from January 1, 
1998, through December 31, 1998, or
    (B) Had a valid Federal swordfish permit at any time from June 1, 
1998, through November 30, 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 
December 31, 1998; or
    (vi) Been the owner of a vessel that is eligible for a directed or 
incidental ILAP for swordfish (incidental shark ILAPs only).
    (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:

[[Page 29143]]

    (1) The owner of a permitted vessel at the time of a landing 
retains credit for the landing unless ownership of the vessel and the 
landings history 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.
    (3) Vessel landings histories may not be consolidated among 
vessels. Owners may not pool landings histories to meet the eligibility 
requirements.
    (c) Alternative eligibility requirements for initial permits. (1) 
Persons who 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 paragraph (a)(2)(ii)(B) of this section, and such 
persons must have had a valid Federal shark permit at any time from 
January 1, 1998, through December 31, 1998, or a valid Federal 
swordfish permit at any time from June 1, 1998, through November 30, 
1998.
    (2) If a person first obtained a shark or swordfish permit in 1997, 
the required 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 issuance of LAPs--(1) Notification of 
status. NMFS will send all written correspondence regarding limited 
access permits by certified mail.
    (i) Shortly after the final rule is published, the Division Chief 
will notify each owner of a vessel who had a valid Federal shark permit 
at any time from January 1, 1998, through December 31, 1998, each owner 
of a vessel who had a valid Federal swordfish permit at any time from 
June 1, 1998, through November 30, 1998, and each owner of a vessel 
that had a valid Atlantic tuna Incidental category permit at any time 
from January 1, 1998, through December 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 on records available to NMFS and mail the appropriate 
permit. 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; 
persons that believe they qualify for a LAP under these criteria must 
apply to the Division Chief.
    (ii) If NMFS determines that all qualifications for a directed or 
incidental catch ILAP have been met and that 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 
expiration date indicated on the permit.
    (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) Applicants may obtain application 
forms and instructions from the Division Chief. The vessel owner must 
submit a completed signed application form and all required supporting 
documents.
    (ii) An application for a directed or incidental catch ILAP must be 
submitted to the Division Chief postmarked no later than September 1, 
1999. An application for an initial swordfish handgear permit must be 
submitted to the Division Chief postmarked no later than December 1, 
1999. Any 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 in numbers of fish or value 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 in 
numbers of fish after July 1, 1993, and all vessel landings of 
swordfish in numbers of fish may be documented only by fishing vessel 
logbook records that NMFS received before March 2, 1998. Vessel 
landings of sharks or swordfish in value may be documented by 
verifiable sales slips or receipts from registered dealers or by state 
landings records. NMFS will not apply any landing of fish by number of 
fish or value that occurred when the vessel did not have a valid 
Federal permit.
    (iv) Information submitted on an application and documentation in 
support of an application is 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, swordfish, or tunas fisheries 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 
receipt 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, 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 in a letter to the applicant. 
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 if an 
incidental catch ILAP is issued instead of the requested directed ILAP, 
the applicant may appeal

[[Page 29144]]

the denial to the Director. The sole grounds for appeal will be 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 submitted to the Director postmarked no 
later than 90 days after receipt 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 that the 
Director may consider in support of an appeal is described in paragraph 
(d)(2)(iii) of this section. Photocopies of documentation (e.g., 
permits, logbook reports) will be acceptable for initial submission. 
The Director may request originals at a later date, which would be 
returned to the appellant.
    (ii) Upon receipt of a complete written appeal with supporting 
documentation, the Director may issue a provisional ILAP that is valid 
for the period during 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 Director will appoint an appeals officer who will review 
the appeal documentation and other available records. If the 
information and documentation presented in the appeal are insufficient, 
inconsistent with vessel ownership, landings history, and other 
information available from NMFS' records, or cannot be verified, the 
appeals officer may notify the appellant that the information supplied 
is not adequate to warrant issuance of the requested permit. The 
appellant will have 30 days from the date of receipt of the 
notification to submit to the appeals officer corroborating documents 
in support of the appeal or to submit a revised appeal. After the 
written appeal documentation is complete, the appeals officer will make 
findings and a recommendation, which shall be advisory only, to the 
Director within 60 days of receipt of the appeal.
    (iv) The Director will make a final decision on the appeal and send 
the appellant notice of the decision. The 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. If the appeal is 
accepted, NMFS will issue an appropriate permit.
    (e) Transfer of LAPs. For provisions on transfer of limited access 
permits, see Sec. 635.4(l).
    (f) Renewal of LAPs. For provisions on renewal of limited access 
permits, see Sec. 635.4(m).

Subpart C--Management Measures


Sec. 635.20  Size limits.

    (a) General. The CFL will be the sole criterion for determining the 
size and/or size class of whole (head on) Atlantic tunas.
    (b) BFT size classes. The size class of a BFT found with the head 
removed shall be determined using pectoral fin curved fork length 
(PFCFL) multiplied by a conversion factor of 1.35. The CFL, as 
determined by conversion of the PFCFL, will be the sole criterion for 
determining the size class of a beheaded BFT. The conversion factor may 
be adjusted after consideration of additional scientific information 
and fish measurement data, and will be made effective by filing with 
the Office of the Federal Register for publication notification of the 
adjustment.
    (c) BFT, bigeye tuna, and yellowfin tuna. (1) No person shall 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) Applying the conversion factor from PFCFL to CFL for a beheaded 
BFT in Sec. 635.20(b) means that no person shall retain or possess a 
BFT, with the head removed, that is less than 20 inches (51 cm) PFCFL.
    (3) No person shall remove the head of a bigeye tuna or yellowfin 
tuna if the remaining portion would be less than 27 inches (69 cm) from 
the fork of the tail to the forward edge of the cut.
    (d) Billfish. (1) No person shall take, retain or possess a blue 
marlin taken from its management unit that is less than 99 inches (251 
cm), LJFL.
    (2) No person shall take, retain or possess a white marlin taken 
from its management unit that is less than 66 inches (168 cm), LJFL.
    (3) No person shall take, retain or possess shoreward of the outer 
boundary of the EEZ a sailfish taken from its management unit that is 
less than 63 inches (160 cm), LJFL.
    (e) Sharks. (1) No person shall take, retain, or possess shoreward 
of the outer boundary of the EEZ any species classified as a ridgeback 
LCS shark, taken from its management unit that is less than 54 inches 
(137 cm), fork length, or, if the head and fins have been removed, 30 
inches (76 cm) as a straight line from the first dorsal fin ray to the 
precaudal pit. If the precaudal pit has been removed, such measurement 
will be to the posterior edge of the carcass. For the purposes of 
enforcing the minimum size, it is a rebuttable presumption that any 
ridgeback shark from which the head and fins have been removed is a 
ridgeback LCS shark.
    (2) All sharks landed under the recreational retention limits 
specified at Sec. 635.22(c), other than Atlantic sharpnose sharks, must 
have the head, tail, and fins attached and be at least 54 inches (137 
cm), FL. There is no minimum size limit for Atlantic sharpnose sharks.
    (f) Swordfish. (1) No person shall take, retain, or possess a north 
or south Atlantic swordfish taken from its management unit that is less 
than 29 inches (73 cm), CK, or 33 lb (15 kg) dressed weight. A 
swordfish that is damaged by shark bites may be retained only if the 
remainder of the carcass is at least 29 inches (73 cm) CK, or 33 lb (15 
kg) dw. No person shall import into the United States an Atlantic 
swordfish weighing less than 33 lb (15 kg) dressed weight, or a part 
derived from a swordfish that weighs less than 33 lb (15 kg) dressed 
weight.
    (2) Except for a swordfish landed in a Pacific state and remaining 
in the state of landing, a swordfish, or part thereof, weighing less 
than 33 lb (15 kg) dressed weight will be deemed to be an Atlantic 
swordfish harvested by a vessel of the United States and to be in 
violation of the minimum size requirement of this section unless such 
swordfish, or part thereof, is accompanied by a certificate of 
eligibility attesting that the swordfish was lawfully imported. 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 of this section from the time it is 
landed in, or imported into, the United States up to, and including, 
the point of first transaction in the United States.


Sec. 635.21  Gear operation and deployment restrictions.

    (a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested 
from its management unit 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 shall 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. Pelagic longlines include any longline 
placed or

[[Page 29145]]

occurring in water depths greater than 50 fathoms (91 m).
    (1) From July 1, 1999, through June 30, 2000, no person may deploy 
a pelagic longline that is more than 24 nautical miles (44.5 km) in 
length in the Mid-Atlantic Bight.
    (2) In the Northeastern United States closed area from June 1 
through June 30 each year, no person may deploy a pelagic longline. In 
this area, during this time, no person shall retain an Atlantic tuna or 
swordfish on board a vessel that has a pelagic longline on board, 
unless the mainline, hooks, and floats are secured.
    (3) When a marine mammal or sea turtle is hooked or entangled by 
pelagic longline gear, the operator of the vessel must immediately 
release the animal, retrieve the pelagic longline 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. A person that retains or 
possesses an Atlantic bluefin tuna may not have on board or use any 
gear other than that authorized for the category for which the Atlantic 
tunas or HMS permit has been issued for the harvesting vessel. When 
fishing for Atlantic tunas other than BFT, fishing gear authorized for 
any permit category may be used, except that purse seine gear may be 
used only on board vessels permitted in the Purse Seine category. When 
fishing for BFT, a person must use only the gear types authorized for 
the Atlantic tunas or HMS permit category of the fishing vessel:
    (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. 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.
    (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 the vessel and catch by notifying NMFS. If, after 
notification by the vessel, NMFS does not arrange to inspect the vessel 
and catch at offloading, the inspection requirement is waived.
    (vii) Trap. Pound net and fish weir.
    (2) Billfish. (i) Persons may possess a blue marlin or white marlin 
in or take a blue marlin or a white marlin from its management unit 
only if it is harvested by rod and reel. Regardless of how taken, 
persons may not possess a blue marlin or a white marlin in or take a 
blue marlin or a white marlin from its management unit on board a 
vessel using or having on board a pelagic longline.
    (ii) Persons may possess a sailfish in or take a sailfish shoreward 
of the outer boundary of the U.S. EEZ only if it is harvested by rod 
and reel. Regardless of how taken, persons may not possess a sailfish 
in, or take a sailfish, shoreward of the outer boundary of the U.S. EEZ 
on board a vessel using or having on board a pelagic longline.
    (3) Sharks. (i) No person may possess a shark shoreward of the 
outer boundary of the EEZ if the shark was taken from its management 
unit by any gear other than handgear, longline or gillnet.
    (ii) No person may fish for sharks with a gillnet with a total 
length of 2.5 km or more. No person may have on board a vessel a 
gillnet with a total length of 2.5 km or more.
    (iii) Provisions on gear deployment for the southeast U.S. shark 
drift gillnet fishery to implement the Atlantic Large Whale Take 
Reduction Plan are set forth in Sec. 229.32(f) of this title.
    (iv) While fishing for Atlantic sharks with a gillnet, the gillnet 
must remain attached to the vessel at one end.
    (4) Swordfish. (i) No person may possess north Atlantic swordfish 
taken from its management unit by any gear other than handgear or 
longline, except that such swordfish taken incidentally while fishing 
with a squid trawl may be retained, subject to restrictions specified 
in Sec. 635.24(b)(2). No person may possess south Atlantic swordfish 
taken from its management unit by any gear other than longline.
    (ii) An Atlantic swordfish may not be retained or possessed on 
board a vessel with a gillnet. A swordfish will be deemed to have been 
harvested by gillnet when it is onboard, or offloaded from a vessel 
using or having on board a gillnet.
    (iii) A person aboard a vessel issued a directed handgear ILAP or 
LAP for Atlantic swordfish may not fish for swordfish with any gear 
other than handgear. A swordfish will be deemed to have been harvested 
by longline when it is on board, or offloaded from a vessel using or 
having on board longline gear.


Sec. 635.22  Recreational retention limits.

    (a) General. Recreational retention limits apply to a longbill 
spearfish taken from or possessed in the Atlantic EEZ, to a shark taken 
from or possessed in the Atlantic EEZ, and to 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 retention 
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 to a person aboard a vessel who has been issued a 
commercial vessel permit under 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. No longbill spearfish from the management unit may be 
possessed shoreward of the outer boundary of the EEZ.
    (c) Sharks. One shark from either the large coastal, small coastal 
or pelagic group may be retained per vessel per trip, subject to the 
size limits described in Sec. 635.20(d), and, in addition, one Atlantic 
sharpnose shark may be retained per person per trip. Regardless of the 
length of a trip, no more than one Atlantic sharpnose shark per person 
may be possessed on board a vessel. No prohibited sharks listed in 
Table 1(d) of Appendix A to this part 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 possessed 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) No person aboard a vessel that has a 
General category Atlantic Tunas permit may possess, retain, land, or 
sell a BFT in the

[[Page 29146]]

school, large school, or small medium size class.
    (2) On an RFD, no person aboard a vessel that has a General 
category Atlantic Tunas permit may 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 adjust the 
daily retention limit specified in paragraph (a)(2) of this section by 
filing with the Office of the Federal Register for publication 
notification of the adjustment. Such adjustment will not be effective 
until at least 3 calendar days after notification is filed with the 
Office of the Federal Register for publication.
    (b) Angling category. BFT may be retained and landed under the 
daily limits and quotas applicable to the Angling category by persons 
aboard vessels permitted in Atlantic tunas Angling category as follows:
    (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 may be landed if caught incidentally to 
fishing for other species.
    (ii) One per vessel per year may be retained, possessed, and landed 
outside the Gulf of Mexico.
    (iii) When a large medium or giant BFT has been caught and retained 
under this paragraph (b)(1), no person aboard the vessel may continue 
to fish, the vessel must immediately proceed to port, and no such BFT 
may be sold or transferred to any person for a commercial purpose.
    (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.
    (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 adjust the daily retention limit specified 
in paragraph (b)(2) of this section by filing with the Office of the 
Federal Register for publication notification of the adjustment. Such 
adjustment will not be effective until at least 3 calendar days after 
notification is filed with the Office of the Federal Register for 
publication.
    (c) HMS or Tunas Charter/Headboat. Persons aboard a vessels 
permitted in Atlantic HMS or Tunas Charter/Headboat category may retain 
and land BFT under the daily limits and quotas applicable to the 
Angling category or the General category as follows:
    (1) When fishing in the Gulf of Mexico, the restrictions applicable 
to the Angling category specified in paragraph (b)(1) of this section 
apply.
    (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 (b)(3) of this 
section apply.
    (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 or Atlantic Tunas 
Charter/Headboat permit may fish under either the retention limits 
applicable to the General category specified in paragraphs (a)(2) and 
(a)(3) of this section or the retention limits applicable to the 
Angling category specified in paragraphs (b)(2) and (b)(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. Persons aboard a vessel permitted in the 
Atlantic Tunas Harpoon category may retain, possess, or land multiple 
giant BFTs per day. An incidental catch of only one large medium BFT 
per vessel per day may be retained, possessed, or landed.
    (e) Purse Seine category. Persons aboard a vessel permitted in the 
Atlantic Tunas Purse Seine category,
    (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. Persons aboard a vessel permitted in the 
Atlantic Tunas Longline category may retain, possess, land, and sell 
large medium and giant BFT taken incidentally in fishing for other 
species. Limits on such retention/possession/landing/sale are as 
follows:
    (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 which are legally 
caught, retained, and offloaded from the same trip and which are 
recorded on the dealer weighout slip as sold.
    (g) Trap category. Persons aboard a vessel permitted in the 
Atlantic Tunas Trap category 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. No other Atlantic tunas caught in a pound net or fish weir may be 
retained.


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.

[[Page 29147]]

    (a) Sharks. (1) Persons who own or operate a vessel that has been 
issued a directed ILAP or LAP for shark may retain, possess or land no 
more than 4,000 lb (1,814 kg), dw, of LCS per trip.
    (2) Persons who own or operate a vessel that has been issued an 
incidental catch ILAP or LAP for sharks may retain, possess or land no 
more than 5 LCS and 16 SCS and pelagic sharks, combined, per trip.
    (b) Swordfish. (1) Persons aboard a vessel that has been issued an 
incidental ILAP or LAP 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.
    (2) Persons aboard a vessel in the squid trawl fishery that has 
been issued an incidental ILAP or LAP for swordfish may retain, 
possess, or land no more than five swordfish per trip in or from the 
Atlantic Ocean north of 5 deg. N. lat. A vessel is considered to be in 
the squid trawl fishery when it has no commercial fishing gear other 
than trawls on board and when squid constitute not less than 75 percent 
by weight of the total fish on board or offloaded from the vessel.


Sec. 635.25  Interim provisions.

    (a) Billfish size limits. (1) No person shall take, retain or 
possess a blue marlin taken from its management unit that is less than 
99 inches (251 cm), LJFL.
    (2) No person shall take, retain or possess a white marlin taken 
from its management unit that is less than 66 inches (168 cm), LJFL.
    (3) No person shall take, retain or possess shoreward of the outer 
boundary of the EEZ a sailfish taken from its management unit that is 
less than 63 inches (160 cm), LJFL.
    (b) Pelagic longline closed area. (1) Pelagic longlines include any 
longline placed or occurring in water depths greater than 50 fathoms 
(91 m).
    (2) The Northeastern United States closed area means the area 
bounded by straight lines connecting the following coordinates in the 
order stated: 40 deg.00' N. lat., 74 deg.00' W. long.; 40 deg.00' N. 
lat., 68 deg.00' W. long.; 39 deg.00' N. lat., 68 deg.00' W. long.; and 
39 deg.00' N. lat., 74 deg.00' W. long.
    (3) In the Northeastern United States closed area from June 1 
through June 30 each year, no person may deploy a pelagic longline. In 
this area, during this time, no person shall retain an Atlantic tuna or 
swordfish on board a vessel that has a pelagic longline on board, 
unless the mainline, hooks, and floats are secured.
    (c) Bluefin tuna (BFT) quota specifications. Consistent with ICCAT 
recommendations, NMFS will subtract any allowance for dead discards 
from the fishing year's (June 1-May 31) total U.S. quota for BFT that 
can be caught and allocate the remainder to be retained, possessed, or 
landed by persons and vessels subject to U.S. jurisdiction. The total 
landing quota will be divided among the General, Angling, Harpoon, 
Purse Seine, Longline, and Trap categories. Consistent with these 
allocations and other applicable restrictions of this part, BFT may be 
taken by persons aboard vessels issued Atlantic Tunas permits or HMS 
Charter/Headboat permits. Allocations of the BFT landings quota will be 
made 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. The remaining 2.5 
percent of the BFT landings quota will be held in reserve for inseason 
adjustments, to compensate for overharvest in any category other than 
the Angling category school BFT subquota or for fishery independent 
research. In such case that the total annual landings quota when 
applied to the percentage allocation for the purse seine category 
exceeds 250 mt, the amount over 250 mt shall be allocated to the 
reserve. NMFS may apportion a landings quota allocated to any category 
to specified fishing periods or to geographic areas. BFT landings 
quotas are specified in whole weight.
    (1) General category landings quota. Prior to each fishing year 
(June 1-May 31), NMFS will set the General category effort control 
schedule, including time-period subquotas and restricted-fishing days, 
through proposed and final specifications published in the Federal 
Register.
    (i) Catches from vessels for which General category Atlantic Tunas 
permits have been issued and certain catches from vessels for which an 
HMS or Atlantic tunas Charter/Headboat permit has been issued are 
counted against the General category landings quota. See 
Sec. 635.23(c)(3) regarding landings by vessels with an HMS or Atlantic 
tunas Charter/Headboat permit that are counted against the General 
category landings quota. The total amount of large medium and giant BFT 
that may be caught, retained, possessed, landed, or sold under the 
General category landings quota is 47.1 percent of the overall U.S. BFT 
landings quota, less 10 mt which is set aside for an area comprising 
the waters 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 SSE 150 deg. true, and north of 38 deg.47' N. lat. 
as specified in Sec. 635.27(a)(1)(iii). This 47.1 percent, less the 10 
mt set aside as specified in Sec. 635.27(a)(1)(iii), is apportioned 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 apportionment based on 
overharvest or underharvest in the prior period.
    (iii) When the coastwide General category fishery has been closed 
in any quota period under Sec. 637.28(a)(1), NMFS may publish 
notification in the Federal Register to make available all or part of 
the 10 mt landings quota set aside for an area comprising the waters 
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 SSE 150 true, and north of 38 deg.47' N. lat. The daily 
catch limit for the set-aside area will be one large medium or giant 
BFT per vessel per day. Upon the effective date of the set-aside 
fishery, fishing for, retaining, or landing large medium or giant BFT 
is authorized only within the set-aside area. Any portion of the set-
aside amount not harvested prior to the reopening of the coastwide 
General category fishery in the subsequent quota period established 
under paragraph (a)(1)(i) of this section may be carried over for the 
purpose of renewing the set-aside fishery at a later date.
    (2) Angling category landings quota. The total amount of BFT that 
may be caught, retained, possessed, and landed by anglers aboard 
vessels for which an Angling category Atlantic Tunas permit or an HMS 
or Atlantic Tunas Charter/Headboat permit has been issued is 19.7 
percent of the overall annual U.S. BFT landings quota. No more than 2.3 
percent of the annual Angling category landings quota may be large 
medium or giant BFT and, over each 4-consecutive-year period, no more 
than 8 percent of the overall U.S. BFT landings quota may be school 
BFT. The Angling category landings quota includes the amount of school 
BFT held in reserve as specified under paragraph (a)(7)(ii) of this 
section. 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 landings quota, minus the school BFT quota 
held in reserve, may be caught, retained, possessed, or landed south of 
38 deg. 47' N. lat.

[[Page 29148]]

    (ii) An amount equal to 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) An amount equal to 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. BFT 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. BFT landings quota, or 
250 mt, whichever is less. The purse seine fishery under this quota 
commences on August 15 each year.
    (ii) An owner of a vessel for which a Purse Seine category Atlantic 
Tunas permit has been issued must apply in writing to NMFS at an 
address designated by 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 permit holders 
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 at an address designated by 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 purse seine 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. BFT 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. Consistent with paragraph 
(a)(7)(iii) of this section, 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. Consistent 
with paragraph (a)(7)(iii) 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 with the Office of the Federal Register for 
publication notification of any inseason adjustment. 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.
    (d) Prohibitions. In addition to the prohibitions specified in 
Sec. 600.725 of this chapter, it is unlawful for any person or vessel 
subject to the jurisdiction of the United States to violate any 
provision of this section, ATCA, the Magnuson-Stevens Act, or any other 
rules promulgated under ATCA or the Magnuson-Stevens Act.


Sec. 635.26  Catch and release.

    (a) BFT. (1) Notwithstanding the 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, regardless of whether previously tagged, 
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 tagging and, if the BFT was previously tagged, the information on 
the previous tag. 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) Billfish. NMFS is encouraging further catch and release of 
Atlantic billfish by establishing a recreational catch-and-release 
fishery management program, consistent with the guidance of 
Sec. 600.350(c).
    (c) Sharks. Notwithstanding the other provisions of this part, a 
person may fish for white sharks (Carcharodon carcharias) with rod and 
reel, provided

[[Page 29149]]

the person releases such fish to the sea immediately with a minimum of 
injury, and that such fish may not be removed from the water.


Sec. 635.27  Quotas.

    (a) BFT. Consistent with ICCAT recommendations, NMFS will subtract 
any allowance for dead discards from the fishing year's total U.S. 
quota for BFT that can be caught and allocate the remainder to be 
retained, possessed, or landed by persons and vessels subject to U.S. 
jurisdiction. The total landing quota will be divided among the 
General, Angling, Harpoon, Purse Seine, Longline, and Trap categories. 
Consistent with these allocations and other applicable restrictions of 
this part, BFT may be taken by persons aboard vessels issued Atlantic 
Tunas permits or HMS Charter/Headboat permits. Allocations of the BFT 
landings quota will be made 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. 
The remaining 2.5 percent of the BFT landings quota will be held in 
reserve for inseason adjustments, to compensate for overharvest in any 
category other than the Angling category school BFT subquota or for 
fishery independent research. In such case that the total annual 
landings quota when applied to the percentage allocation for the purse 
seine category exceeds 250 mt, the amount over 250 mt shall be 
allocated to the reserve. NMFS may apportion a landings quota allocated 
to any category to specified fishing periods or to geographic areas. 
BFT landings quotas are specified in whole weight.
    (1) General category landings quota. Prior to each fishing year, 
NMFS will set the General category effort control schedule, including 
time-period subquotas and restricted-fishing days, through proposed and 
final specifications published in the Federal Register.
    (i) Catches from vessels for which General category Atlantic Tunas 
permits have been issued and certain catches from vessels for which an 
HMS or Atlantic tunas Charter/Headboat permit has been issued are 
counted against the General category landings quota. See 
Sec. 635.23(c)(3) regarding landings by vessels with an HMS or Atlantic 
tunas Charter/Headboat permit that are counted against the General 
category landings quota. The total amount of large medium and giant BFT 
that may be caught, retained, possessed, landed, or sold under the 
General category landings quota is 47.1 percent of the overall U.S. BFT 
landings quota, less 10 mt which is set aside for an area comprising 
the waters 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 SSE 150 deg. true, and north of 38 deg.47' N. lat. 
as specified in Sec. 635.27(a)(1)(iii). This 47.1 percent, less the 10 
mt set aside as specified in Sec. 635.27(a)(1)(iii), is apportioned 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 apportionment based on 
overharvest or underharvest in the prior period.
    (iii) When the coastwide General category fishery has been closed 
in any quota period under Sec. 637.28(a)(1), NMFS may publish 
notification in the Federal Register to make available all or part of 
the 10 mt landings quota set aside for an area comprising the waters 
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 SSE 150 true, and north of 38 deg.47' N. lat. The daily 
catch limit for the set-aside area will be one large medium or giant 
BFT per vessel per day. Upon the effective date of the set-aside 
fishery, fishing for, retaining, or landing large medium or giant BFT 
is authorized only within the set-aside area. Any portion of the set-
aside amount not harvested prior to the reopening of the coastwide 
General category fishery in the subsequent quota period established 
under paragraph (a)(1)(i) of this section may be carried over for the 
purpose of renewing the set-aside fishery at a later date.
    (2) Angling category landings quota. The total amount of BFT that 
may be caught, retained, possessed, and landed by anglers aboard 
vessels for which an Angling category Atlantic Tunas permit or an HMS 
or Atlantic Tunas Charter/Headboat permit has been issued is 19.7 
percent of the overall annual U.S. BFT landings quota. No more than 2.3 
percent of the annual Angling category landings quota may be large 
medium or giant BFT and, over each 4-consecutive-year period, no more 
than 8 percent of the overall U.S. BFT landings quota may be school 
BFT. The Angling category landings quota includes the amount of school 
BFT held in reserve as specified under paragraph (a)(7)(ii) of this 
section. 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 landings quota, minus the school BFT quota 
held in reserve, may be caught, retained, possessed, or landed south of 
38 deg. 47' N. lat.
    (ii) an amount equal to 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) an amount equal to 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. BFT 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. BFT landings quota, or 
250 mt, whichever is less. The purse seine fishery under this quota 
commences on August 15 each year.
    (ii) An owner of a vessel for which a Purse Seine category Atlantic 
Tunas permit has been issued must apply in writing to NMFS at an 
address designated by 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 permit holders 
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 at an address designated by 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

[[Page 29150]]

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 purse seine 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. BFT 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. Consistent with paragraph 
(a)(7)(iii) of this section, 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. Consistent 
with paragraph (a)(7)(iii) 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 with the Office of the Federal Register for 
publication notification of any inseason adjustment. 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 
(a)(7)(iii)(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 (a)(7)(ii) of this section. NMFS will file with the Office of the 
Federal Register for publication notification of any inseason 
adjustment.
    (9) Annual adjustments. (i) 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 shall subtract the overharvest from, or add the 
underharvest to, that quota category for the following fishing year, 
provided that the total of the adjusted category quotas and the reserve 
is consistent with a recommendation of ICCAT regarding country quotas, 
the take of school BFT, and the allowance for dead discards.
    (ii) NMFS may allocate any quota remaining in the reserve at the 
end of a fishing year to account for overharvest in any fishing 
category, provided such allocation is consistent with the criteria 
specified in paragraph (a)(7)(iii) of this section.
    (iii) Regardless of the estimated landings in any year, NMFS may 
adjust the annual school BFT quota to ensure that the average take of 
school BFT over each 4-consecutive-year period beginning in the 1999 
fishing year does not exceed 8 percent by weight of the total U.S. BFT 
quota for that period.
    (iv) If NMFS determines that the annual dead discard allowance has 
been exceeded in one fishing year, NMFS shall subtract the amount in 
excess of the allowance from the amount of BFT that can be landed in 
the subsequent fishing year by those categories accounting for the dead 
discards. If NMFS determines that the annual dead discard allowance has 
not been reached, NMFS may add one-half of the remainder to the amount 
of BFT that can be landed in the subsequent fishing year. Such amount 
may be allocated to individual fishing categories or to the Reserve.
    (v) NMFS will file with the Office of the Federal Register for 
publication notification of the amount subtracted or added and the 
basis for the quota reductions or increases made pursuant to paragraphs 
(a)(9)(i) through (a)(9)(iv) of this section.
    (b) Sharks--(1) Commercial quotas. The commercial quotas for shark 
specified in paragraphs (b)(1)(i) through (b)(1)(iv) of this section 
apply to sharks harvested from the management unit, regardless of where 
harvested. Commercial quotas are specified for each of the management 
groups of large coastal sharks, small coastal sharks, and pelagic 
sharks.
    (i) Large coastal sharks. The annual commercial quota for large 
coastal sharks is 816 mt dw, apportioned between ridgeback and non-
ridgeback shark and divided between two equal 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, and other relevant factors. NMFS will file with 
the Office of the Federal Register for publication notification of each 
season's length at least 30 days prior to the beginning of the season. 
The quotas for each fishing season (unless otherwise specified in the 
Federal Register as provided in paragraph (b)(1)(iv) of this section 
are as follows:
    (A) Ridgeback shark--310 mt dw.
    (B) Non-ridgeback shark-98 mt dw.
    (ii) Small coastal sharks. The annual commercial quota for small 
coastal shark is 359 mt dw, (unless otherwise specified in the Federal 
Register as provided in paragraph (b)(1)(iv) of this section) divided 
between two equal semiannual seasons, January 1 through June 30, and 
July 1 through December 31. The quota for each semiannual season is 
179.5 mt, dw.
    (iii) Pelagic sharks. The annual commercial quotas for pelagic 
sharks are 92 mt dw for porbeagle sharks and 488 mt dw for all other 
pelagic sharks (unless otherwise specified in the

[[Page 29151]]

Federal Register as provided in paragraph (b)(1)(iv) of this section). 
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--46 mt dw.
    (B) Pelagic sharks, other than porbeagle sharks--244 mt dw.
    (C) Blue sharks--136.5 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 landings 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 the season that begins January 1, provided that the 
annual quotas are not exceeded. NMFS will file with the Office of the 
Federal Register for publication notification of any adjustment at 
least 30 days prior to the start of the next fishing season.
    (B) NMFS will reduce the annual commercial quota for pelagic sharks 
by the amount that the blue shark quota is exceeded at least 30 days 
prior to the start of the next fishing season.
    (C) Sharks 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.
    (2) Public display quota. The annual quota for persons who collect 
sharks from any of the management groups under an EFP is 60 mt whole 
weight (43 mt dw). All sharks collected under the authority of an EFP, 
subject to restrictions at Sec. 635.32, will be counted against this 
quota.
    (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 
caught prior to the directed fishery closure by a vessel for which a 
directed fishery permit or a handgear permit for swordfish has been 
issued is counted against the directed fishery quota. 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 caught after the effective date 
of a closure of the directed fishery from a vessel for which a directed 
fishery permit or a handgear permit for swordfish has been issued is 
counted against the incidental catch quota. The 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 2033.2 mt dw, divided 
into two equal semiannual quotas of 1016.6 mt dw, one for June 1 
through November 30, and the other for 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 fishing 
season, any estimated overharvest or underharvest of the directed 
fishery quota for that semi-annual season will be used to adjust the 
annual incidental catch quota accordingly.
    (iv) NMFS will file with the Office of the Federal Register for 
publication notification of any inseason swordfish quota adjustment and 
its apportionment made under this paragraph (c)(2) of this section.
    (3) Annual adjustments. (i) Except for the carryover provisions of 
paragraph (c)(3)(ii) of this section, NMFS will file with the Office of 
the Federal Register for publication notification of any adjustment to 
the annual quota necessary to meet the objectives of the Fishery 
Management Plan for Atlantic Tuna, Swordfish and Sharks. NMFS will 
provide at least 30 days opportunity for public comment.
    (ii) If consistent with applicable ICCAT recommendations, total 
landings above or below the specific North Atlantic or South Atlantic 
swordfish annual quota shall be subtracted from, or added to, the 
following year's quota for that area. Any adjustments to the 12-month 
directed fishery quota will be apportioned equally between the two 
semiannual fishing seasons. NMFS will file with the Office of the 
Federal Register for publication notification of any adjustment or 
apportionment made under this paragraph (c)(3)(ii).


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 with the Office of the Federal Register for 
publication notification of closure. On and after the effective date 
and time of such notification, for the remainder of the fishing year or 
for a specified period as indicated in the notice, fishing for, 
retaining, possessing, or landing BFT under that quota is prohibited 
until the opening of the subsequent quota period or until such date as 
specified in the notice.
    (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. Such vessel may be used 
to fish for yellowfin, bigeye, albacore, or skipjack tuna at any time, 
however, 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 BFT 
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 tunas or in any fishery in 
which BFT might be caught 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 category 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 interim closure or area closure, NMFS 
will consider:
    (i) The usefulness of information obtained from catches of a 
particular geographic area of the fishery for

[[Page 29152]]

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 interim closure or area closure is 
effected; and
    (iv) The projected ability of the entire category to harvest the 
remaining amount of BFT before the anticipated end of the fishing 
season.
    (b) Sharks. (1) The commercial fishery for large coastal sharks 
will remain open for fixed semiannual fishing seasons, as specified at 
Sec. 635.27(b)(1)(i). From the effective date and time of a season 
closure until 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 (b)(1)(iii) is reached, 
or is projected to be reached, NMFS will file with the Office of the 
Federal Register for publication a notice of closure at least 14 days 
before the effective date. From the effective date and time of the 
closure until 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 to Sec. 635.4.
    (3) When the fishery for a shark species group is closed, a fishing 
vessel issued a commercial permit pursuant to Sec. 635.4 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 
(ii) is reached, or is projected to be reached, NMFS will file with the 
Office of the Federal Register for publication notification of closure 
at least 14 days before the effective date. 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, as specified in Sec. 635.69. NMFS may adjust the incidental 
catch retention limit by filing with the Office of the Federal Register 
for publication notification of the change at least 14 days before the 
effective date. 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 more than 2 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 that has been issued a handgear permit under 
Sec. 635.4(f)(1) provided that such swordfish were not taken with a 
harpoon.
    (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)(i) is reached, or is projected to 
be reached, NMFS will file with the Office of the Federal Register for 
publication notification of closure. 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 reports positions with a 
vessel monitoring system, as specified in Sec. 635.69.


Sec. 635.29  Transfer at sea.

    (a) Persons may not transfer an Atlantic tuna, blue marlin, white 
marlin, 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 
currently authorized vessel allocation, including incidental catch 
limits.
    (b) Persons may not transfer a shark or a sailfish at sea shoreward 
of the outer boundary of the EEZ, regardless of where the shark was 
harvested, and persons may not transfer at sea a shark or a sailfish 
taken shoreward of the outer boundary of the EEZ, regardless of where 
the transfer takes place.


Sec. 635.30  Possession at sea and landing.

    (a) Atlantic tunas. 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 in round form or eviscerated with the 
head and fins removed, provided one pectoral fin and the tail remain 
attached.
    (b) Billfish. Any person that possesses a blue marlin or a white 
marlin taken from its management unit or a sailfish taken shoreward of 
the outer boundary of the EEZ or lands a blue marlin or a white marlin 
in an Atlantic coastal port must maintain such billfish with its head, 
fins, and bill intact through offloading. Persons may eviscerate such 
billfish, but it must otherwise be maintained whole.
    (c) Shark. (1) No person shall fin any shark, i.e., remove only the 
fins and return the remainder of the shark to the sea, shoreward of the 
outer boundary of the EEZ and on board a vessel for which a commercial 
vessel permit for shark has been issued. No person shall possess a 
shark fin on board a fishing vessel after the vessel's first point of 
landing. No person shall possess or offload wet shark fins in a 
quantity that exceeds 5 percent of the weight of the shark carcasses. 
The prohibition on finning applies to all species of sharks in the 
management unit. For a list of species in the management unit, 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

[[Page 29153]]

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.


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 or Atlantic Tunas Charter/Headboat permit, or a 
General, Harpoon, Longline, Purse Seine, or Trap category permit for 
Atlantic tunas issued under this part. 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 or Atlantic Tunas 
Charter/Headboat permit fishing in the Gulf of Mexico at any time, 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 issued under this part.
    (2) Dealers may purchase Atlantic tunas only from a vessel that has 
a valid commercial permit for Atlantic tunas issued under this part 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 taken 
from its management unit.
    (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 the Atlantic Ocean management unit. 
However, a billfish or a closely related species will not be considered 
to be from the Atlantic Ocean management unit if-
    (i) It was landed in a Pacific state and remains in the state of 
landing, or
    (ii) It is accompanied by a Billfish Certificate of Eligibility 
that documents that it was harvested from other than the Atlantic Ocean 
management unit.
    (c) Shark. (1) Persons that own or operate a vessel that possesses 
a shark from the management unit may sell such shark only if the vessel 
has a valid commercial permit for shark issued under this part. 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 for which a valid 
commercial shark permit has been issued and on which a shark from the 
management unit is possessed, may sell such shark only to a dealer that 
has a valid permit for shark issued under this part.
    (3) Persons that own or operate a vessel for which a valid 
commercial shark permit has been issued may not sell fins from a shark 
harvested from the management unit, 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 (the 
wet 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 issued under this part, except that 
dealers may purchase a shark from an owner or operator of a vessel that 
does not have a commercial permit for shark if that vessel fishes 
exclusively in state waters. Dealers may purchase a shark from an owner 
or operator of fishing vessel that has a permit issued under this part 
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 (the wet 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 issued under this part. Persons may sell such swordfish only 
to a dealer who has a valid permit for swordfish issued under this 
part.
    (2) Dealers may purchase a swordfish harvested from the Atlantic 
Ocean only from an owner or operator of a fishing vessel that has a 
valid commercial permit for swordfish issued under this part.


Sec. 635.32  Specifically authorized activities.

    (a) General. Consistent with the provisions of Sec. 600.745 of this 
chapter, except as indicated in this section, NMFS may authorize for 
the conduct of scientific research or the acquisition of information 
and data, for the enhancement of safety at sea, for the purpose of 
collecting animals for public education or display, or for 
investigating 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 
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 acknowledgment, 
exempted fishing permit or scientific research permit issued in 
response to requests for authorization under this section. For the 
purposes of all regulated species covered under this part, NMFS has the 
sole authority to issue permits, authorizations, and acknowledgments. 
If a regulated species landed or retained under the authority of this 
section is subject to a quota, the fish shall be

[[Page 29154]]

counted against the quota category as specified in the written 
authorization.
    (b) Scientific research activities. For the purposes of all species 
covered under this part regulated under the authority of ATCA, the 
provisions for research plans under Sec. 600.745(a) and reports under 
Sec. 600.745(c)(1) of this chapter are mandatory. In such cases of 
authorized scientific research activities, NMFS shall issue scientific 
research permits. For scientific research activities involving the 
capture of Atlantic sharks, research plans and reports are requested; 
letters of acknowledgment shall be issued by NMFS as indicated under 
Sec. 600.745(a) of this chapter.
    (c) Exempted fishing permits. (1) For activities consistent with 
the purposes of this section and Sec. 600.745(b)(1) of this chapter, 
other than scientific research conducted from a scientific research 
vessel, NMFS may issue exempted fishing permits. Application procedures 
shall be as indicated under Sec. 600.745(b)(2) of this chapter, except 
that NMFS may consolidate requests for the purposes of obtaining public 
comment. In such cases, NMFS may file with the Office of the Federal 
Register for publication notification on an annual or, as necessary, 
more frequent basis to report on previously authorized exempted fishing 
activities and to solicit public comment on anticipated exempted 
fishing requests.
    (2) 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 officer. 
A shark EFP is valid for the specific time, area, gear, and species 
specified on it.
    (3) 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.
    (4) Written reports on fishing activities and disposition of catch 
must be submitted to NMFS at an address designated by NMFS, for each 
fish collected within 5 days 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 at an address 
designated by NMFS. NMFS will provide specific conditions and 
requirements, consistent with the Fishery Management Plan for Atlantic 
Tunas, Swordfish, and Sharks in the EFP.


Sec. 635.33  Archival tags.

    (a) Implantation report. Any person affixing or implanting an 
archival tag into a regulated species must obtain written authorization 
from NMFS pursuant to Sec. 635.32. Persons so authorized to conduct 
archival tag implantation must provide a written report to NMFS at an 
address designated by 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) 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.
    (b) 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: maximum sustainable yield or optimum yield levels 
based on the latest stock assessment or updates in the SAFE report; 
domestic quotas; recreational and commercial retention 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; Atlantic tunas Purse Seine category cap on bluefin tuna 
quota; time/area restrictions; allocations among user groups; gear 
prohibitions, modifications, or use restrictions; effort restrictions; 
essential fish habitat; and actions to implement ICCAT recommendations, 
as 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 are 
ineligible for entry into the United States under 16 U.S.C. 971d (c)(4) 
or (c)(5), NMFS, with the concurrence of the Secretary of State, will 
file with the Office of the Federal Register for publication a finding 
to that effect. Effective upon the date of filing of such finding, all 
shipments of fish in any form of the species found to be ineligible 
will be denied entry unless, with respect to a particular shipment, it 
is established by satisfactory proof pursuant to paragraph (b) of this 
section that the particular shipment of 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 filing 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 filed with the Office of the Federal Register for publication 
under paragraph (a) of this section is eligible for entry if the 
shipment is accompanied by a completed ATCA COE attached to the invoice 
certifying that the fish in the shipment:
    (i) Are not of the species specified in the finding;
    (ii) Are of the species named in the finding, but were not taken in 
the regulatory area; or

[[Page 29155]]

    (iii) Are of the species named in the finding, but are products of 
an American fishery and were lawfully taken in conformity with 
applicable conservation laws and regulations and landed in the country 
named in the 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 ATCA COE must be executed by a duly 
authorized official of the country named in the finding and the ATCA 
COE must be validated by a consular officer or consular agent of the 
United States. Such validation must be attached to the ATCA COE.
    (3) If the fish are offered for entry under paragraph (b)(1)(iii) 
of this section, the ATCA COE 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 the finding 
under paragraph (a) of this section, NMFS will remove the import 
restriction by filing with the Office of the Federal Register for 
publication notification of removal effective on the date of filing. 
However, for 1 year from the date of filing every shipment of fish in 
any form that was subject to the finding under 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.
    (c) Southern bluefin tuna (Thunnus maccoyii) may be allowed entry 
without the statistical documentation required under this section.


Sec. 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). Customs Form 7501 can be obtained by contacting U.S. 
Customs at http://www.customs.treas.gov/order.htm. 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, or faxed, by said dealer to NMFS at an address designated 
by 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. Customs Form 7513 can be obtained by contacting 
U.S. Customs at http://www.customs.treas.gov/order.htm.
    (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, 
at an address designated by 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:

[[Page 29156]]

    (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 (i.e., western 
Atlantic, 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 the Director 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.


Sec. 635.46  Import restrictions on swordfish.

    (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 the swordfish certificate 
of eligibility as specified in paragraph (b) of this section 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) Swordfish COE. (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 swordfish COE. A 
swordfish COE 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 swordfish COE required under this section must indicate, in 
English, 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

[[Page 29157]]

specified in paragraph (a) of this section. The swordfish COE shall be 
attached to the invoice accompanying the swordfish shipment from the 
point of original export up to and including the point of first 
transaction in the United States.
    (3) The swordfish COE required under this section must include, in 
English, the date, the name, the title of the governmental official or 
other authorized person, and the name of the authorizing government 
agency of the country exporting the swordfish to the United States. The 
swordfish COE must be signed and dated by that governmental official or 
authorized person with an official government seal affixed, thus 
validating the information on the COE. (4) A swordfish COE may refer to 
swordfish taken from only one ocean area of harvest (i.e., Atlantic, 
Pacific, 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 swordfish COE must accompany the shipment for each 
ocean area of harvest and for each flag nation of the harvesting 
vessels.
    (5) A model swordfish COE can be obtained by contacting the 
Division Chief. An equivalent form may be used provided it contains all 
the information required under this section.
    (6) The importer must write the Customs Form 7501 entry number on 
each swordfish COE and attach to the dealer report form all swordfish 
COEs from shipments that are recorded on the bi-weekly dealer report 
form.


Sec. 635.47  Ports of entry.

    NMFS shall monitor the importation of BFT and swordfish into the 
United States. If NMFS determines that the diversity of handling 
practices at certain ports at which BFT or swordfish is being imported 
into the United States allows for circumvention of the BSD or swordfish 
COE requirement, NMFS 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 with the Office of the Federal 
Register for publication the names of ports so designated and the 
effective dates of entry restrictions.

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 to serve as an authorized 
inspector for ICCAT, and who possesses identification issued by the 
authorized officer's national government.


Sec. 635.52  Vessels subject to inspection.

    (a) All U.S. fishing vessels or vessels carrying fish species 
subject to regulation pursuant to a recommendation of ICCAT, 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.
    (b) A vessel, or a vessel carrying fish species subject to 
regulation pursuant to a recommendation of ICCAT, that is registered by 
any of the ICCAT contracting parties, 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 regulated species or when 
making a port call in the United States.
    (c) The master of a vessel, or a vessel carrying fish species 
subject to regulation pursuant to a recommendation of ICCAT, must 
cooperate with an authorized officer during the conduct of an 
inspection in national and foreign ports. 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 by the authorized officer 
on a standardized ICCAT form or form produced by the national 
government which collects the same quality of information. The 
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 and to the ICCAT Secretariat 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.

Subpart F-Enforcement


Sec. 635.69  Vessel monitoring systems.

    (a) Applicability. To facilitate enforcement of time-area and 
fishery closures, an owner or operator of a commercial vessel permitted 
to fish for Atlantic HMS under Sec. 635.4 and that fishes with a 
pelagic longline is required to install a NMFS-approved vessel 
monitoring system (VMS) unit on board the vessel and operate the VMS 
unit whenever the vessel leaves port with pelagic longline gear on 
board.
    (b) Hardware specifications. The VMS hardware must be approved by 
NMFS and must be able to perform all NMFS required functions. NMFS will 
file with the Office of the Federal Register for publication 
notification listing the specifications for approved VMS units. As 
necessary, NMFS will make additions and/or amendments to the VMS 
hardware type approval list to account for changes in specifications or 
new products offered by manufacturers. NMFS will file with the Office 
of the Federal Register for publication notification listing such 
additions and/or amendments.
    (c) Communications specifications. The communications service 
provider must be approved by NMFS and must be able to provide all NMFS 
required functions. NMFS will file with the Office of the Federal 
Register for publication notification listing the specifications for 
approved VMS communications service providers. As necessary, NMFS will 
make additions and/or amendments to the VMS communications service 
providers type approval list to account for changes in specifications 
or new services offered by communications providers. NMFS will file 
with the Office of the Federal Register for publication notification 
listing such additions and/or amendments.
    (d) Installation and service activation. When installing and 
activating the NMFS-approved VMS unit, a vessel owner or operator must 
follow procedures indicated on an installation and activation checklist 
obtained from NMFS. Re-installation shall require the same checklist. 
Upon completion of installation, the vessel owner must sign a statement 
certifying compliance with the installation procedures of the checklist 
and submit such certification to NMFS as indicated on the checklist.

[[Page 29158]]

Vessels fishing prior to submission of the certification will be in 
violation of the VMS requirement.
    (e) Operation. Owners or operators of vessels permitted, or 
required to be permitted, to fish for HMS that have pelagic longline 
gear on board, must activate the VMS to submit automatic position 
reports beginning 2 hours prior to leaving port and not ending until 
the vessel returns to port. While at sea, the unit must operate without 
interruption and no person may interfere with, tamper with, alter, 
damage, disable, or impede the operation of a VMS, or attempt any of 
the same. Vessels fishing outside the geographic area of operation of 
the installed VMS will be in violation of the VMS requirement.
    (f) Interruption. When the vessel operator is aware that 
transmission of automatic position reports has been interrupted, or 
when notified by NMFS that automatic position reports are not being 
received, the vessel operator must contact NMFS and follow the 
instructions given. Such instructions may include but are not limited 
to manually communicating to a location designated by NMFS the vessel's 
position or returning to port until the VMS is operable.
    (g) Repair and replacement. After a fishing trip during which 
interruption of automatic position reports has occurred, the vessel's 
owner or operator must replace or repair the VMS unit prior to the 
vessel's next trip. Repair or reinstallation of a VMS unit or 
installation of a replacement, including change of communications 
service provider shall be in accordance with the checklist provided by 
NMFS and require the same certification.


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 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 Sec. 635.4 or Sec. 635.16.
    (2) Fish for, catch, possess, retain, or land an Atlantic HMS 
without the appropriate valid vessel permit, LAP, or EFP on board the 
vessel, as specified in Secs. 635.4 and 635.32.
    (3) Purchase, receive, or transfer for commercial purposes any 
Atlantic HMS landed by owners of vessels not permitted to do so under 
Sec. 635.4, or purchase, receive, or transfer for commercial purposes 
any Atlantic HMS without the appropriate valid dealer permit issued 
under Sec. 635.4, except that this does not apply to a shark harvested 
from a vessel that has not been issued a permit under this part and 
that fishes exclusively within the waters under the jurisdiction of any 
state.
    (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, except that this does not apply to a shark harvested 
from a vessel that has not been issued a permit under this part and 
that fishes exclusively within the waters under the jurisdiction of any 
state.
    (5) Fail to possess and make available for inspection a vessel 
permit on board the permitted vessel or upon transfer of HMS to a 
dealer or a dealer permit at the dealer's place of business, or to 
alter any such permit 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.
    (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 install, activate, repair or replace a vessel 
monitoring system prior to leaving port with pelagic longline gear on 
board the vessel as specified in Sec. 635.69.
    (15) Tamper with, or fail to operate and maintain a vessel 
monitoring system as specified in Sec. 635.69.
    (16) Fail to contact NMFS or follow NMFS instructions when 
automatic position reporting has been interrupted as specified in 
Sec. 635.69.
    (17) Fish for Atlantic tunas or swordfish with a gillnet for or 
possess Atlantic tunas or swordfish on board a vessel with a gillnet on 
board, as specified in Sec. 635.21 (b), (d)(1), and (d)(4)(ii).
    (18) Fail to retrieve fishing gear and move after an interaction 
with a marine mammal or sea turtle, as specified in Sec. 635.21(c)(4).
    (19) Fail to release an Atlantic HMS in the manner specified in 
Sec. 635.21(a).
    (20) Fail to report the retention of an Atlantic HMS that has an 
archival tag, as specified in Sec. 635.33.
    (21) Fail to maintain an Atlantic HMS in the form specified in 
Sec. 635.30.
    (22) Fish for, catch, retain, or possess an Atlantic HMS that is 
less than its minimum size limit specified in Sec. 635.20.
    (23) Fail to comply with the restrictions on use of a pelagic 
longline or shark gillnet as specified in Sec. 635.21 (c) and 
(d)(3)(ii) and (iii).
    (24) Import any BFT or swordfish in a manner inconsistent with any 
ports of entry designated by NMFS as authorized by Sec. 635.47.
    (25) 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.
    (26) Violate the terms and conditions or any provision of an 
exempted fishing permit or scientific research permit issued under the 
authority of Sec. 635.32.
    (27) Operate a charterboat or headboat without a valid U.S. Coast 
Guard merchant marine or uninspected passenger vessel license on board 
the vessel when fishing for or possessing Atlantic HMS as specified at 
Sec. 635.4(c)(2).
    (28) Violate any provision of this part, the Magnuson-Stevens Act, 
ATCA, or any regulations or permits issued under the Magnuson-Stevens 
Act or ATCA.
    (29) Fail to comply with the restrictions on importing HMS as 
specified at Secs. 635.40, 635.41 and 635.46.

[[Page 29159]]

    (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(a)(4) and (g)(1).
    (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 or Atlantic Tunas 
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 as specified in 
Sec. 635.5(b)(2).
    (5) Fail to report a large medium or giant BFT that is not sold, as 
specified in Sec. 635.5(a)(3) and Sec. 635.5(c).
    (6) As an angler, fail to report a BFT, as specified in 
Sec. 635.5(a)(3).
    (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 or Atlantic Tunas 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 or Atlantic Tunas Charter/Headboat permit, sell, 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 Secs. 635.5(b), 635.23, and 
635.31(a).
    (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) Transfer a billfish at sea, as specified in Sec. 635.29(a).
    (3) Fail to maintain a billfish in the form specified in 
Sec. 635.30(b).
    (4) Sell or purchase a billfish, as specified in Sec. 635.31(b).
    (5) Retain on board a vessel a longbill spearfish, or a blue 
marlin, white marlin or sailfish that is less than the minimum size 
specified in Sec. 635.20(d).
    (d) Shark. It is unlawful for any person or vessel subject to the 
jurisdiction of the United States to:
    (1) Exceed a recreational retention limit for shark, as specified 
in Sec. 635.22(c).
    (2) Exceed a commercial retention 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 (b)(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 listed in Tables 1 and 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 (c)(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

[[Page 29160]]

of an application for an ILAP or an appeal of NMFS's denial of an ILAP 
for shark.
    (12) Fish for Atlantic sharks with unauthorized gear or possess 
Atlantic sharks on board a vessel with unauthorized gear on board as 
specified in Sec. 635.21(d)(3).
    (13) Fish for Atlantic sharks with a gillnet or possess Atlantic 
sharks on board a vessel with a gillnet on board, except as specified 
in Sec. 635.21(d)(3).
    (e) Swordfish. It is unlawful for any person or vessel subject to 
the jurisdiction of the United States to:
    (1) Purchase, barter for, or trade for a swordfish from the north 
or south Atlantic swordfish stock or import a swordfish harvested from 
any ocean area 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 (c)(1)(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.
    (12) Falsify information submitted under Sec. 635.46(b) in support 
of entry of imported swordfish.
    (13) Exceed the incidental catch retention limits specified at 
Sec. 635.24(b).

Appendix A to Part 635--Species Tables

Table 1 of Appendix A to Part 635-Oceanic Sharks

    A. Large coastal sharks:

    1. Ridgeback sharks:
    Sandbar, Carcharhinus plumbeus
    Silky, Carcharhinus falciformis
    Tiger, Galeocerdo cuvieri

    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

    B. Small coastal sharks:

    Atlantic sharpnose, Rhizoprionodon terraenovae
    Blacknose, Carcharhinus acronotus
    Bonnethead, Sphyrna tiburo
    Finetooth, Carcharhinus isodon

    C. Pelagic sharks:

    Blue, Prionace glauca
    Oceanic whitetip, Carcharhinus longimanus
    Porbeagle, Lamna nasus
    Shortfin mako, Isurus oxyrinchus
    Thresher, Alopias vulpinus.

    D. Prohibited sharks:

    Atlantic angel, Squatina dumerili
    Basking, Cetorhinus maximus
    Bigeye sand tiger, Odontaspis noronhai
    Bigeye sixgill, Hexanchus vitulus
    Bigeye thresher, Alopias superciliosus
    Bignose, Carcharhinus altimus
    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-Deepwater/Other Shark Species

    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
    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
    American sawshark, Pristiophorus schroederi
    Florida smoothhound, Mustelus norrisi
    Smooth dogfish, Mustelus canis

PART 644--ATLANTIC BILLFISHES [REMOVED]

    17. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801 
et seq., part 644 is removed effective July 1 ,1999, except that 
Sec. 644.21(a) is removed and reserved effective May 24, 1999.

PART 678--ATLANTIC SHARKS [REMOVED]

    18. Under the authority of 16 U.S.C. 1801 et seq., part 678 is 
removed effective July 1, 1999.
[FR Doc. 99-13090 Filed 5-24-99; 3:29 pm]
BILLING CODE 3510-22-F