[Federal Register Volume 67, Number 235 (Friday, December 6, 2002)]
[Proposed Rules]
[Pages 72629-72632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30874]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 021113274-2274-01; I.D. 031501A]
RIN 0648-AO79


Atlantic Highly Migratory Species; Exempted Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule in accordance with framework 
procedures for adjusting the management measures of the Final Fishery 
Management Plan for Atlantic Tunas, Swordfish and Sharks (HMS FMP), and 
Amendment 1 to the Atlantic Billfish Fishery Management Plan (Billfish 
FMP). This proposed rule would modify existing regulations for Atlantic 
highly migratory species (HMS) exempted fishing activities. The intent 
of the changes is to improve monitoring of exempted fishing activities 
for Atlantic HMS. NMFS will hold a public hearing to receive comments 
from fishing participants and other members of the public regarding the 
proposed exempted fishing specifications.

DATES: Comments must be received no later than 5 p.m., eastern standard 
time, on January 6, 2003.
    The public hearing date is December 16, 2002, 7 p.m.--9 p.m.

ADDRESSES: Written comments on the proposed rule should be submitted to 
Christopher Rogers, Chief, Highly Migratory Species Management Division 
(F/SF1), Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910. Comments also may be sent via facsimile (fax) 
to 301-713-1917. Comments regarding the collection-of-information 
requirement contained in this proposed rule should be sent to the 
Highly Migratory Species Management Division (F/SF1), 1315 East-West 
Highway, Silver Spring, MD 20910, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 20503 (Attention: NOAA Desk Officer). Comments will not be accepted 
if submitted via e-mail or the internet.
    The public hearing location is: Sea World Adventure Park, Ports of 
Call

[[Page 72630]]

Building, 7007 Sea World Drive, Orlando, Florida, 32821.

FOR FURTHER INFORMATION CONTACT: Sari Kiraly at 301-713-2347, fax 301-
713-1917, e-mail [email protected].

SUPPLEMENTARY INFORMATION: Under 50 CFR 635.32, and consistent with 50 
CFR 600.745, NMFS may authorize for limited testing, public display, 
and scientific data collection purposes, the target or incidental 
harvest of species managed under an FMP or fishery regulations that 
would otherwise be prohibited. Exempted fishing may not be conducted 
unless authorized by an Exempted Fishing Permit (EFP) or a Scientific 
Research Permit (SRP) issued by NMFS in accordance with criteria and 
procedures specified in those sections. As necessary, an EFP or SRP 
would exempt the named party(ies) from otherwise applicable regulations 
under 50 CFR part 635. Such exemptions could address fishery closures, 
possession of prohibited species, commercial permitting requirements, 
and retention and minimum size limits.
    This proposed action was developed in response to ongoing concerns 
related to past EFPs for the purpose of capturing regulated HMS, 
particularly sharks collected for public display, and is intended to 
strengthen the existing regulations that govern such EFP related 
activities. The proposed rule is in accordance with framework 
procedures for adjusting management measures provided in the Final HMS 
FMP, and Amendment 1 to the Billfish FMP.

Exempted Fishing Operations

    With respect to exempted fishing activities, NMFS proposes the 
following new requirements:
    (1) Collectors of HMS for display purposes would be required to 
notify the local NMFS Office for Law Enforcement 72 hours prior to 
departing on a collection trip in federal or state waters as to 
collection plans and location, and number of animals to be collected. 
Also, at the end of each collection trip, upon return to port the 
collector would be required to call the local NMFS Office for Law 
Enforcement to report the conclusion of the trip and whether any 
regulated HMS were collected. In addition, in cases of HMS being 
shipped to other locations, the collector would be required to notify 
the local NMFS Office for Law Enforcement 48 hours prior to shipment.
    (2) In lieu of the conventional dart tags currently supplied to 
collectors by NMFS, all live HMS collected for the purpose of public 
display would be required to have microchip Passive Integrated 
Transponder (PIT) tags, which will be supplied by NMFS, implanted by 
the collector. The use of PIT tags is intended to eliminate problems 
that frequently occur following implantation of the conventional dart 
tags. Collectors would not be required to obtain PIT tag readers, but 
are advised to do so in order to verify that the PIT tag is properly 
implanted and can be read, and also to have available should law 
enforcement authorities other than NMFS Enforcement board the fishing 
vessel. If a NMFS law enforcement officer is unable to detect with the 
NMFS reader a PIT tag in a HMS collected for display, the collection 
will be deemed unauthorized.
    (3) To minimize mortality associated with the live capture of HMS, 
permit conditions regarding fishing activities, such as gear 
deployment, monitoring, or soak time, would be specified on a case-by-
case basis. If such measures are not effective in limiting mortalities, 
other restrictions, such as allowing the use of only certain types of 
gear for the live capture of HMS for display, could be instituted to 
minimize the possibility of dead discards.
    (4) NMFS would reserve the right to place on-board an authorized 
collection vessel a fisheries observer to monitor activities governed 
by an EFP.
    (5) The proposed rule also modifies EFP requirements for swordfish 
offloading. For the directed swordfish fishery, if vessel monitoring 
systems (VMS) are installed on vessels, separate EFPs to allow delayed 
offloading would no longer be required.

Reporting Requirements

    NMFS proposes to enhance data collection and reporting by requiring 
the following:
    (1) To reinforce the importance of the year-end report to NMFS 
concerning the activities conducted under the EFP, in addition to the 
information currently required for submission, all applications for 
permit renewals would also be required to include the year-end report 
from the previous year in order to be considered complete. Renewal 
applications would not be deemed complete until the year-end report 
containing all the specified information, is submitted.
    (2) In addition to reporting the retention of live HMS, all dead 
HMS caught and discarded under the permit would have to be reported - 
these dead discards will be counted against appropriate annual quotas. 
Additionally, any HMS collected under state-issued permits by persons 
issued federal EFPs would have to be reported to NMFS within 5 days of 
collection. Reporting of HMS collected under state permits will provide 
important information as to the actual numbers of animals that are 
being removed from the stocks. If no HMS are collected in either 
federal or state waters in any given month, a ``no-catch'' report would 
have to be submitted to NMFS within 5 days of the last day of that 
month.
    (3) Several prohibitions are proposed to be added or modified to 
address a) submission of false information on permit applications or 
activity reports, and b) violations of any of the terms and conditions 
of the EFP. These prohibitions are needed to facilitate enforcement of 
EFP application and reporting requirements. Essentially, they extend 
the permitting, record-keeping, and reporting requirements otherwise 
applicable to vessels and dealers to those persons issued EFPs.

Request for Comments

    In addition to the changes proposed in this proposed rule, comments 
are requested on the below-listed potential regulatory requirements. 
These measures are not being proposed at this time. If, after receiving 
comments, NMFS decides to issue regulations to implement any of these 
provisions, NMFS will publish a proposed rule.
    (1) To qualify for an EFP for the live collection of HMS for public 
display purposes, the applicant would be required to demonstrate that 
holding facilities adequate for animal husbandry are maintained. NMFS 
will consider accreditation in the American Zoo and Aquarium 
Association (AZA), or equivalent standards, as meeting these 
requirements.
    (2) Based on available information on disease or mortalities while 
in captivity, NMFS could limit the issuance of EFPs for the collection 
of HMS species that are not likely to survive well in captivity, until 
such time that the best available new information indicates otherwise. 
This measure could potentially reduce mortality of HMS held in 
captivity.
    (3) EFPs for the purpose of collecting live animals for public 
display could be issued only to aquariums and other display facilities 
that meet the AZA standards for such facilities - third party 
collectors would no longer be issued EFPs, but would be allowed to 
collect HMS as a third party contractor to the authorized institution.
    (4) Public display facilities, including aquariums that are not 
otherwise authorized by a collection permit, would be required to 
obtain from NMFS a display permit in order to maintain HMS in 
captivity. To qualify for this

[[Page 72631]]

permit, applicants would need to demonstrate the adequacy of the 
facility for animal husbandry. NMFS would consider accreditation in the 
AZA, or equivalent standards, as meeting these requirements.

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1801 et seq., and Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq.
    For the purposes of NOAA Administrative Order (NAO) 216-6, the AA 
has preliminarily determined that this action would not have a 
significant effect, individually or cumulatively, on the human 
environment, that it has been sufficiently analyzed in a prior FMP, and 
that it involves only minor technical additions, corrections or changes 
to the regulations. Accordingly, under sections 5.05 and 6.03a3(b) of 
NAO 216-6, this action is categorically excluded from the requirement 
to prepare an environmental assessment or environmental impact 
statement.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Notwithstanding any other provision of the 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 OMB Control 
Number.
    This proposed rule contains a new collection-of-information 
requirement subject to review and approval by OMB under the PRA. The 
requirement for exempted fishing activity reporting has been submitted 
to OMB for approval. Public reporting burden for this collection of 
information is estimated to average 5 minutes per notification phone 
call at the beginning and completion of a collection trip and upon 
shipment of any animals. The estimated time to prepare a catch report 
required by an EFP issued for display collection is 5 minutes, and to 
prepare a ``no-catch'' report the estimated time is 2 minutes. The 
estimated application preparation and year-end report preparation times 
for display EFPs are 30 minutes each. Application of a PIT tag to a HMS 
captured for display is estimated to take 2 minutes.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency; whether the information shall have 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including through the use of automated collection techniques or other 
forms of information technology. Send comments on these or any other 
aspects of the collection of information to NMFS and OMB (see 
ADDRESSES).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel of Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows. Most of the entities that would be affected by this 
proposed rule would be considered small entities. The cost to EFP 
applicants is minimal, estimated at $3.75 per applicant for the letter, 
information card, and telephone calls needed to apply, report, and 
notify. The cost of PIT tags will be incurred by NMFS, which will 
supply the tags to each permittee. If NMFS decided to select a vessel 
governed by an EFP for observer coverage, pursuant to 50 CFR 645.7, 
there would be no significant economic impact. NMFS would provide the 
observer, and the vessel operator would only be required to provide 
accommodations and food for the observer equivalent to those provided 
to the crew. Thus, there would be no significant economic impact on a 
substantial number of small entities. Accordingly, an initial 
regulatory flexibility analysis was not prepared for this proposed 
rule.
    The proposed action would not significantly change the operations 
of any HMS fishery and is not expected to increase threats to 
endangered or threatened species listed under the Endangered Species 
Act. A Biological Opinion (BiOp) issued June 14, 2001, concluded that 
continued operation of the Atlantic pelagic longline fishery is likely 
to jeopardize the continued existence of sea turtle species under NMFS 
jurisdiction. NMFS has implemented the reasonable and prudent 
alternative specified in the BiOp in a final rule July 9, 2002 (67 FR 
45393). The measures proposed would not have any additional impact on 
sea turtles as these actions would not likely increase or decrease 
pelagic longline effort, nor are they expected to shift effort into 
other fishing areas. No irreversible and irretrievable commitment are 
expected from this proposed action that would have the effect of 
foreclosing the implementation of the requirements of the BiOp.
    It is not anticipated that this proposed action would have any 
impacts on essential fish habitat and, therefore, no consultation is 
required.
    The AA has determined that this action would have no impacts on the 
enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean 
coastal states that have approved coastal zone management plans under 
the Coastal Zone Management Act. Accordingly, NMFS has submitted 
consistency determinations to those states with a request for 
concurrence.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing , Fishing Vessels, Foreign Relations, 
Intergovernmental Relations, Penalties, Reporting and recordkeeping 
requirements, Statistics, Treaties.

    Dated: December 2, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

    2. In Sec.  635.28, paragraph (c)(1)(i)(A) is revised to read as 
follows:


Sec.  635.28  Closures.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (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, 
Atlantic swordfish legally taken prior to the effective date of the 
closure 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 on 
board, provided the harvesting vessel does no fishing after the closure 
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

[[Page 72632]]

catch by vessels fishing under the incidental catch quota.
* * * * *

    3. In Sec.  635.32, paragraphs (c)(1) and (c)(4) are revised, and 
paragraphs (c)(3)(i) through (c)(3)(iv) are added to read as follows:


Sec.  635.32  Specifically authorized activities.

* * * * *
    (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. Applications for permit renewals are required to 
include the year-end report from the previous year in order to be 
considered complete. Renewal applications will be deemed incomplete 
unless a complete package, including the year-end report containing all 
the specified information is submitted.
* * * * *
    (3) * * *
    (i) Collectors of HMS for display purposes must notify the local 
NMFS Office for Law Enforcement 72 hours, excluding weekends and 
holidays, prior to departing on a collection trip in federal or state 
waters as to collection plans and location, and the number of animals 
to be collected. Also, at the end of each collection trip, upon return 
to port the collector must call the local NMFS Office for Law 
Enforcement to report the conclusion of the trip and whether any 
regulated HMS were collected. In addition, in the case of HMS being 
shipped to other locations, the collector must notify the local NMFS 
Office for Law Enforcement 48 hours prior to shipment.
    (ii) All live HMS collected for the purpose of public display are 
required to have microchip Passive Integrated Transponder (PIT) tags, 
which will be supplied by NMFS, implanted by the collector. Collectors 
are not required to obtain PIT tag readers, but are advised to do so in 
order to verify that the PIT tag is properly implanted and can be read. 
If a NMFS law enforcement officer is unable to detect a PIT tag in a 
HMS collected for display with the NMFS reader, the collection will be 
deemed unauthorized.
    (iii) Permit conditions regarding fishing activities, such as gear 
deployment, monitoring, or soak time, will be specified on a case-by-
case basis. If such measures are not effective in limiting mortalities, 
other restrictions, such as allowing the use of only certain types of 
gear for the live capture of HMS for display, may be instituted to 
minimize the possibility of dead discards.
    (iv) NMFS reserves the right to place on-board an authorized 
collection vessel a fisheries observer to monitor activities governed 
by an EFP.
    (4) Written reports on fishing activities and disposition of catch 
for each fish collected under the permit must be submitted to NMFS, at 
an address designated by NMFS, 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. In addition, all dead 
HMS caught and discarded under the permit must be reported. Also, any 
HMS collected under state-issued permits by persons issued federal EFPs 
must be reported to NMFS within 5 days of collection. If no HMS are 
collected in either federal or state waters in any given month, a ``no-
catch'' report must be submitted to NMFS within 5 days of the last day 
of that month.

    4. In Sec.  635.71, paragraphs (a)(6) and (a)(26) are revised to 
read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (6) Falsify or fail to record, report, or maintain information 
required to be recorded, reported, or maintained, as specified in Sec.  
635.5 or in the terms and conditions of a permit issued under Sec.  
635.4 or an exempted fishing permit or scientific research permit 
issued under the authority of Sec.  635.32.
* * * * *
    (26) Violate the terms and conditions or any provision of a permit 
issued under Sec.  635.4, or an exempted fishing permit or scientific 
research permit issued under the authority of Sec.  635.32.
* * * * *
[FR Doc. 02-30874 Filed 12-3-02; 8:45 am]
BILLING CODE 3510-22-S