[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Rules and Regulations]
[Pages 77434-77439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31695]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 020325070-2296-03; I.D. 071299C]
RIN 0648-AM91


Atlantic Highly Migratory Species (HMS) Fishing Vessel Permits; 
Charter Boat Operations

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

ACTION: Final rule.

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SUMMARY: Under the framework provisions of the Fishery Management Plan 
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), NMFS amends the 
consolidated regulations governing the Atlantic HMS fisheries to define 
operations and regulations for HMS Charter/Headboats (CHBs), require an 
Atlantic HMS recreational permit, adjust the time frame for permit 
category changes for Atlantic HMS and Atlantic tunas permits, clarify 
the regulations regarding the retention of Atlantic bluefin tuna (BFT) 
in the Gulf of Mexico by recreational and HMS CHB vessels, and allow 
NMFS to set differential BFT retention limits by vessel type (e.g., 
charter boats, headboats).

DATES: Effective March 1, 2003.

ADDRESSES: Copies of supporting documents, including the HMS FMP, are 
available from the Highly Migratory Species Management Division, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
The supporting documents will also be posted on the e-Comments Web site 
listed under http://www.nmfs.noaa.gov and the HMS Web site http://www.nmfs.noaa.gov/sfa/hmspg.html. Comments on the burden-hour estimates 
or other aspects of the collection of information that are part of this 
rulemaking can be submitted to NMFS, but must also be mailed to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Brad McHale at (978) 281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas, swordfish, and billfish are 
managed under the dual authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic 
Tunas Convention Act (ATCA). ATCA authorizes the Secretary of Commerce 
(Secretary) to implement binding recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT). The 
authority to issue regulations under the Magnuson-Stevens Act and ATCA 
has been delegated from the Secretary to the Assistant Administrator 
(AA) for Fisheries, NOAA. Sharks are managed solely under the authority 
of the Magnuson-Stevens Act.

Background

    Background information about the need for revisions to the HMS 
regulations was provided in the preamble to the proposed rule (67 FR 
20716, April 26, 2002), and is not repeated here. By this final rule, 
NMFS defines operations and regulations for HMS CHBs; requires an 
Atlantic HMS recreational permit; adjusts the time frame for permit 
category changes for Atlantic HMS and Atlantic tunas permits; and 
clarifies the regulations regarding the retention of BFT in the Gulf of 
Mexico by recreational and HMS CHB vessels. This final rule also amends 
the regulatory text to clarify the authority to set differential BFT 
retention limits by vessel type (e.g., charter boats, headboats) which 
was restated less clearly when the HMS regulations were consolidated 
under 50 CFR part 635 (64 FR 29090, May 28, 1999).

Changes from the Proposed Rule

    This final rule changes some of the proposed revisions to the 
regulatory text and some paragraphs have been consolidated. In Sec.  
635.4, several proposed revisions to paragraphs (b) and (d) have been 
revised, the references to certain other permit requirements in the 
proposed revisions to paragraphs (b) and (d) have been consolidated 
into paragraph (a), and paragraph (c) has been added. These changes 
were made to clarify the intent of the regulatory text, to reduce 
duplication and to facilitate enforcement of the regulations.

Comments and Responses

    NMFS conducted three public hearings on the proposed rule and 
received written, oral, and electronic comments (through the NMFS e-
Comments pilot project website at http://www.nmfs.noaa.gov) over a 30-
day comment period. The majority of the comments were in support of the 
proposed actions. Responses to specific comments on the issues 
contained in the proposed rule are provided here.
    Comment 1: NMFS has received comments stating that applying the 
recreational yellowfin tuna (YFT) retention limit to HMS CHB vessels at 
all times precludes legitimate commercial activity when the vessels are 
not carrying fee-paying anglers. Commenters have also indicated that 
some HMS CHB vessels have historically conducted commercial fishing 
trips for YFT when not operating as a for-hire vessel. Some commenters 
stated that the HMS FMP did not specifically address commercial fishing 
by the for-hire fleet and the impacts of prohibiting such commercial 
fishing on this segment of the fishery. Other commenters stated that 
HMS CHB vessels should not have the ability to land as many YFT as they 
can on commercial vessels because the stock is currently defined as 
fully exploited and an increase in fishing mortality could have adverse 
effects.
    Response: NMFS agrees that applying the recreational YFT retention 
limit to HMS CHB vessels at all times precludes legitimate commercial 
activity when the vessels are not carrying fee-paying passengers. The 
HMS CHB permit is considered a commercial tuna permit in that tunas 
caught by vessels possessing the permit may be sold. Prior to July 1, 
1999, CHB vessels had the ability to retain and sell all YFT that were 
caught, as long as they met the minimum size requirements. In 2000, 
commercial handgear landings of YFT totaled 283.7 metric tons (mt), 
amounting to approximately 4 percent of total U.S. YFT landings, or 9 
percent of all commercial landings. Dealer weighout data reported to 
NMFS included 839 handgear trips that sold YFT from 1998 through 2000, 
and about 10 percent of these trips were reported by CHBs. Thus, 
although commercial YFT landings by CHB vessels may be significant to 
individual vessel operators, they represent less than 1 percent of 
total U.S. YFT landings.
    NMFS has determined that allowing HMS CHB vessels to retain YFT 
under the commercial limits when not engaged in for-hire activities 
would not adversely affect the YFT stock. NMFS recognizes the dual 
nature of the operations of certain vessels issued the HMS CHB permit. 
Thus, the final rule defines for-hire fishing in a way that would allow 
such vessels to fish under commercial limits when not engaged in

[[Page 77435]]

for-hire fishing. The definition of for-hire fishing is similar to that 
used in other U.S. fisheries operating in the Caribbean, Gulf of 
Mexico, and South Atlantic. For those vessels that engage in both for-
hire and commercial fishing, the impact of this action is positive, as 
it clarifies the requirements to allow them to participate in both 
types of fisheries.
    Comment 2: Many comments stated that requiring recreational permits 
for all HMS vessels is long over due. They noted that issuing an HMS 
Angling category permit will provide critical data by which to 
accurately assess the status of the Atlantic HMS fishery in the 
recreational sector. Other commenters stated that this permit 
requirement will even the playing field and protect the rights of both 
commercial and recreational fishermen. NMFS also received comments 
stating that it is essential to know the universe of participants and 
the total effort that is involved in the recreational sector of HMS 
fisheries. It was stated that the permits could be used to further our 
scientific understanding of these HMS. The comment stated that the 
permit should be merged with the current Atlantic tunas Angling 
category permit to reduce the burden on the recreational sector. NMFS 
also received a comment stating that there are other methods of 
identifying the universe of recreational HMS fishermen, such as 
coordinating with the states, which would relieve the public of the 
burden of having to renew the Federal permit on an annual basis.
    Response: The HMS recreational permit will enable NMFS to more 
accurately monitor recreational landings and generate catch and release 
statistics for all recreational HMS, thereby enhancing HMS management 
and research efforts. Knowledge of the universe of recreational 
fishermen and of total fishing effort, catch, and bycatch is incomplete 
at present, with most data collection currently focused on the Atlantic 
tunas fisheries. Estimates of some of these parameters are currently 
made using survey instruments, such as the Large Pelagic Survey (LPS) 
and the Marine Recreational Fisheries Statistics Survey (MRFSS), as 
well as reporting from registered tournaments. The current Atlantic 
tunas angling category permit will be replaced with an Atlantic HMS 
recreational permit system, which will greatly improve information 
available to NMFS regarding the recreational Atlantic HMS fisheries by 
providing an accurate measure of participation, which will improve 
estimates of effort, catch, and bycatch (including discards) for 
several important species.
    Comment 3: NMFS received a number of comments stating that, due to 
the nature of the HMS fisheries, effective management is essential 
throughout the entire range of the regulated species. These commenters 
agreed that NMFS must exercise jurisdiction over U.S.-flagged vessels 
regardless of where a vessel is fishing.
    Response: NMFS recognizes that state-federal jurisdictional issues 
are complex. NMFS will work with the individual states to evaluate how 
permit conditions applied to recreational vessels issued Federal 
permits may resolve jurisdictional concerns. Upon completing 
discussions with the states, NMFS may address this issue in a separate 
rulemaking.
    Comment 4: Many comments stated that the different retention limits 
for inspected headboats are justifiable provided that there is a 
maximum retention limit placed upon the vessel.
    Response: With the BFT retention limits generally defined in terms 
of the number of fish that can be retained per vessel, a maximum 
retention limit can be inequitable for U.S. Coast Guard (USCG) 
inspected vessels authorized to carry a larger number of passengers. 
This action clarifies the HMS regulations for setting differential 
retention limits by vessel type (e.g., charter boat vs. headboat).
    Comment 5: Several comments stated that the E-comments system is a 
step in the right direction in providing the public with efficient 
means to submit comments, and in allowing NMFS to take more 
stakeholders' insights into account when making final rules. Some 
commenters also stated that having the ability to see previously 
submitted comments enhances their understanding of the proposed changes 
and the potential impacts.
    Response: NMFS' E-comments pilot project was a success. NMFS will 
expand the use of this system and will continue to explore ways to use 
technology to enhance the public's ability to learn about and 
participate in NMFS rulemaking activities.
    Comment 6: Some commenters stated that the HMS CHB recreational 
trip definition should be coordinated with the regional fishery 
management councils, NMFS law enforcement, and USCG to minimize the 
confusion and complexity with different definitions in different 
fisheries.
    Response: NMFS coordinated with other management bodies and 
enforcement agencies to develop a recreational trip definition for HMS 
CHB vessels. This issue was discussed at length during the 2001 
Advisory Panel (AP) meeting, and there was general consensus among the 
AP members that defining a charter trip in a manner similar to that 
used in the NMFS Southeast Region regulations (based on paying 
passengers aboard and/or the number of persons aboard, with three 
people or less on board constituting a ``commercial'' trip and more 
than three on board constituting a ``charter'' trip) is appropriate for 
HMS, especially regarding the YFT bag limit issue.
    Comment 7: A few comments received stated that it is unacceptable 
to charge every fishermen $27.00 per year for the use of the HMS 
resources. These commenters felt that the fee was a means of generating 
funds for the Federal government and that NMFS could establish a permit 
program and obtain the same information without charging a fee. Other 
commenters stated that the fee is reasonable.
    Response: Under the Magnuson-Stevens Act, NMFS is authorized to 
charge fees for permits to participants in fisheries conducted in the 
U.S. exclusive economic zone. Administrative costs recovery is a NOAA 
policy, and the fee is calculated annually to recover the costs 
attributable to the automated permit and reporting system. Under 
current law, these funds cannot be directly applied to NMFS' programs, 
but must be deposited into the General Fund of the United States 
Treasury.

Classification

    These regulatory amendments are published under the authority of 
the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. and the Atlantic Tunas 
Convention Act, 16 U.S.C. 971 et seq. The Assistant Administrator (AA) 
for Fisheries, NOAA, has determined that the regulations contained in 
this final rule are necessary to implement the recommendations of ICCAT 
and for the management of the Atlantic HMS fisheries.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) at the proposed rule stage that, if implemented, 
this final rule would not have a significant economic impact on a 
substantial number of small entities. No comments were received that 
would alter the basis for this determination. However, as noted above, 
a few of the comments received expressed concern about charging a fee 
for the use of the HMS resources. These commenters felt that the permit 
fee was a means to generate funds for the Federal government and that 
NMFS could establish a permit program without

[[Page 77436]]

charging a fee. However, under the Magnuson-Stevens Act, NMFS is 
authorized to charge fees for permits issued to participants in 
fisheries conducted in the U.S. exclusive economic zone. Further, 
administrative cost recovery is NOAA's policy, and the minimal fee 
(currently $27 per year) is calculated annually to recover the costs 
attributable to the automated permit and reporting system. Under 
current law, these funds cannot be directly applied to NMFS' programs, 
but must be deposited into the General Fund of the United States 
Treasury. Given the prior certification to SBA, neither an Initial nor 
a Final Regulatory Flexibility Analysis was prepared.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an Environmental Assessment (EA) for this final rule, 
and the AA has concluded that there would be no significant impact on 
the human environment. The EA presents analyses of the anticipated 
impacts of these final actions and the other alternatives considered. A 
copy of the EA and other analytical documents prepared for this final 
rule are available from NMFS (see ADDRESSES).
    The regulations implemented through this final rule are not 
expected to increase endangered species or marine mammal interaction 
rates. On September 7, 2000, NMFS reinitiated formal consultation for 
all HMS commercial fisheries under section 7 of 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 endangered and threatened sea 
turtle species under NMFS jurisdiction. On July 9, 2002 (67 FR 45393), 
NMFS implemented the reasonable and prudent alternative required by the 
BiOp. None of the actions in this final rule would 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 or irretrievable commitments 
of resources are expected from the final actions that would adversely 
affect the implementation of the requirements of the BiOp.
    The areas affected by these final actions have been identified as 
essential fish habitat (EFH) for species managed by the New England 
Fishery Management Council, the Mid-Atlantic Fishery Management 
Council, the South Atlantic Fishery Management Council, the Gulf of 
Mexico Fishery Management Council, the Caribbean Fishery Management 
Council, and the HMS Management Division of NMFS. It is not anticipated 
that the actions will have any adverse impacts on EFH; therefore, no 
consultation is required.
    This final rule contains two new collection-of-information 
requirements and restates several existing reporting requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). The first new collection 
of information is approved under OMB Control Number 0648-0327 and is an 
extension of the Atlantic tunas recreational Angling category permit 
requirement to include fishermen who fish for all Atlantic HMS, 
including swordfish, sharks, and billfish, with an estimated public 
reporting burden of 30 minutes per response for initial permit 
applications and 6 minutes per response for renewing the permit. The 
second collection is approved under OMB Control Number 0648-0373 and 
extends gear-marking requirements to persons acquiring this permit who 
were not previously subject to a permit requirement, with an estimated 
response time of 15 minutes per float. This final rule also restates a 
number of collection-of-information requirements that OMB has 
previously approved. These requirements and their OMB control numbers 
and estimated response times are: vessel permits for Atlantic tunas and 
Atlantic HMS Charter/headboats, initial (30 minutes; 0648-0327) and 
renewal (6 minutes; 0648-327); vessel permits for Atlantic shark and 
swordfish (20 minutes; 0648-0205); dealer permits for Atlantic sharks 
and swordfish (5 minutes; 0648-0205); call in recreational landing 
reports for Atlantic bluefin tuna (5 minutes; 0648-0328); dealer 
permits for Atlantic tunas (5 minutes; 0648-0202); gear marking (15 
minutes; 0648-0373); and vessel marking (45 minutes; 0648-0373).
    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS and OMB (see ADDRESSES).
    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 PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 635

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

    Dated: December 10, 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 
amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

    2. In Sec.  635.2, the definition for ``For-hire trip'' is added, 
in alphabetical order, to read as follows:


Sec.  635.2  Definitions.

* * * * *
    For-hire trip means a recreational fishing trip taken by a vessel 
with an Atlantic HMS Charter/Headboat permit during which paying 
passenger(s) are aboard; or, for uninspected vessels, trips during 
which there are more than three persons aboard, including operator and 
crew; or, for vessels that have been issued a Certificate of Inspection 
by the U.S. Coast Guard to carry passengers for hire, trips during 
which there are more persons aboard than the number of crew specified 
on the vessel's Certificate of Inspection.
* * * * *

    3. In Sec.  635.4, paragraphs (a)(1), (a)(2), (a)(5), (b), (d)(1) 
through (d)(3), (h)(1) introductory text, and (m)(1) are revised, and 
paragraph (c) is added to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (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. In certain cases, additional 
permits may be required to authorize these same or related activities 
under federal, state or local jurisdictions.
    (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

[[Page 77437]]

for, take, retain, or possess Atlantic HMS when engaged in recreational 
fishing and to fish for, take, retain or possess Atlantic tunas, 
swordfish, or sharks when engaged in commercial fishing. The vessel 
operator must make such permit available for inspection upon request by 
NMFS or by 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 
required vessel permits.
* * * * *
    (5) Display upon offloading. Upon transfer of Atlantic HMS, the 
owner or operator of the harvesting vessel must present for inspection 
the vessel's HMS Charter/Headboat permit and/or 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).
* * * * *
    (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. A vessel issued an HMS 
Charter/Headboat permit for a fishing year shall not be issued an HMS 
Angling permit or an Atlantic Tunas permit in any category for that 
same fishing year, regardless of a change in the vessel's ownership.
    (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) HMS Angling permits. The owner of each vessel used to fish 
recreationally for Atlantic HMS or on which Atlantic HMS are retained 
or possessed, must obtain an HMS Angling permit. Atlantic HMS caught, 
retained, possessed, or landed by persons on board vessels with an HMS 
Angling permit may not be sold or transferred to any person for a 
commercial purpose. A vessel issued an HMS Angling permit for a fishing 
year shall not be issued an HMS Charter/Headboat permit or an Atlantic 
Tunas permit in any category for that same fishing year, regardless of 
a change in the vessel's ownership. An Atlantic Tunas Angling category 
permit issued for the 2002 fishing year shall meet the vessel permit 
requirements of this paragraph through May 31, 2003.
    (d) Atlantic Tunas vessel permits. (1) The owner of each vessel 
used to fish for or take Atlantic tunas commercially or on which 
Atlantic tunas are retained or possessed with the intention of sale 
must obtain an HMS Charter/Headboat permit issued under paragraph (b) 
of this section, or an Atlantic tunas permit in one, and only one, of 
the following categories: General, Harpoon, Longline, Purse Seine, or 
Trap.
    (2) Persons aboard a vessel with a valid Atlantic Tunas, HMS 
Angling, or 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 has a valid permit in the General, 
Harpoon, Longline, Purse Seine, or Trap category of the Atlantic Tunas 
permit or a valid HMS Charter/Headboat permit.
    (3) A vessel issued an Atlantic Tunas permit in any category for a 
fishing year shall not be issued an HMS Angling permit, HMS Charter/
Headboat permit, or an Atlantic Tunas permit in any other category for 
that same fishing year, regardless of a change in the vessel's 
ownership.
* * * * *
    (h) * * *
    (1) Atlantic Tunas, HMS Angling, and HMS Charter/Headboat vessel 
permits.
* * * * *
    (m) Renewal--(l) General. Persons must apply annually for a dealer 
permit for Atlantic tunas, sharks, and swordfish, and for an Atlantic 
HMS Angling, HMS Charter/Headboat, tunas, shark, or swordfish vessel 
permit. Except as specified in the instructions for automated renewals, 
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 and ATCA have been submitted, including 
those described in Sec.  635.5, and the applicant is not subject to a 
permit sanction or denial under paragraph (a)(6) of this section.
* * * * *

    4. In Sec.  635.5, the first sentence of paragraph (c) is revised 
to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (c) Anglers. The owner of a vessel permitted in the HMS Angling 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 or posting the required information at 
http://www.nmfspermits.com within 24 hours of the landing. * * *
* * * * *

    5. In Sec.  635.6, paragraph (b)(1) introductory text and the first 
sentence of paragraph (c)(1) are revised to read as follows:


Sec.  635.6  Vessel and gear identification.

* * * * *
    (b) Vessel identification. (1) An owner or operator of a vessel for 
which a permit has been issued under Sec.  635.4, other than an HMS 
Angling permit, must display the vessel number
* * * * *
    (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, HMS Angling, or HMS 
Charter/Headboat 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. * * *
* * * * *

    6. In Sec.  635.22, paragraphs (a), (c), and (d) are revised to 
read as follows:


Sec.  635.22  Recreational retention limits.

    (a) General. Atlantic HMS caught, possessed, retained, or landed 
under these recreational retention limits may not be sold or 
transferred to any person for a commercial purpose. Recreational 
retention limits apply to a longbill spearfish taken or possessed 
shoreward of the outer boundary of the Atlantic EEZ, to a shark taken 
from or possessed in the Atlantic EEZ, and to a yellowfin or bluefin 
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. Federal recreational retention limits may not 
be combined with any recreational retention limit applicable in state 
waters.
* * * * *
    (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

[[Page 77438]]

in Sec.  635.20(e), 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. The recreational retention limit for 
sharks applies to a person who fishes in any manner, except to a person 
aboard a vessel issued an Atlantic Sharks LAP under Sec.  635.4. When a 
commercial Atlantic shark fishery is closed under Sec.  635.28, the 
recreational retention limit for sharks may be applied to persons 
aboard a vessel issued an Atlantic Sharks LAP under Sec.  635.4, only 
if that vessel has also been issued an HMS Charter/Headboat permit 
under Sec.  635.4 and is engaged in a for-hire trip.(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. The recreational retention limit for 
yellowfin tuna applies to a person who fishes in any manner, except to 
a person aboard a vessel issued an Atlantic Tunas vessel permit under 
Sec.  635.4. The recreational retention limit for yellowfin tuna 
applies to persons aboard a vessel that has been issued an HMS Charter/
Headboat permit only when the vessel is engaged in a for-hire trip.

    7. In Sec.  635.23, paragraphs (b) introductory text, (b)(2), 
(b)(3), (c) introductory text, and (c)(3) are revised to read as 
follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (b) Angling category. BFT may be retained and landed under the 
daily limits and quotas applicable to the Angling category by persons 
aboard vessels issued an HMS Angling permit as follows:
* * * * *
    (2) School, large school, or small medium BFT. (i) No school, large 
school, or small medium BFT may be retained, possessed, landed, or sold 
in the Gulf of Mexico.
    (ii) One school, large school, or small medium BFT per vessel per 
day may be retained, possessed, or landed outside the Gulf of Mexico. 
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 in retention limit will be based on a review of 
daily landing trends, availability of the species on the fishing 
grounds, and any other relevant factors. Such adjustments to the 
retention limits may be applied separately for persons aboard a 
specific vessel type, such as private vessels, headboats or charter 
boats. 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 Charter/Headboat. Persons aboard a vessel issued an HMS 
Charter/Headboat permit may retain and land BFT under the daily limits 
and quotas applicable to the Angling category or the General category 
as follows:
* * * * *
    (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 been issued an HMS 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.
* * * * *

    8. In Sec.  635.27, the first three sentences of paragraph (a) 
introductory text, the first two sentences of paragraph (a)(1)(i) 
introductory text, and the first sentence of paragraph (a)(2) 
introductory text are revised to read as follows:


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, HMS Angling permits, or HMS Charter/Headboat permits. * 
* *
    (1) * * *
    (i) Catches from vessels for which General category Atlantic Tunas 
permits have been issued and certain catches from vessels for which an 
HMS Charter/Headboat permit has been issued are counted against the 
General category landings quota. See Sec.  635.23 (c)(3) regarding 
landings by vessels with an HMS Charter/Headboat permit that are 
counted against the General category landings quota. * * *
* * * * *
    (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 HMS Angling permit or an HMS Charter/Headboat 
permit has been issued is 19.7 percent of the overall annual U.S. BFT 
landings quota. * * *
* * * * *

    9. In Sec.  635.28, paragraph (b)(3) is revised to read as follows:


Sec.  635.28  Closures.

* * * * *
    (b) * * *
    (3) When the fishery for a shark species group is closed, a fishing 
vessel issued an Atlantic Sharks LAP pursuant to Sec.  635.4 may not 
possess or sell a shark of that species group, except under the 
conditions specified in Sec.  635.22 (a) and (c), and a permitted shark 
dealer may not purchase or receive a shark of that species group from a 
vessel issued an Atlantic Sharks LAP, 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.
* * * * *

    10. In Sec.  635.31, paragraph (a)(1) is revised to read as 
follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) Atlantic tunas. (1) Persons that own or operate a vessel from 
which an Atlantic tuna is landed or offloaded may sell such Atlantic 
tuna only if that vessel has a valid HMS Charter/Headboat permit, or a 
General, Harpoon, Longline, Purse Seine, or Trap category permit for 
Atlantic Tunas issued under this part. However, no person shall sell a 
BFT smaller than the large medium size class. Also, no large medium or 
giant BFT taken by a person aboard a vessel with an Atlantic HMS 
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

[[Page 77439]]

closed, shall be sold (see Sec.  635.23(c)). Persons shall sell 
Atlantic tunas only to a dealer that has a valid permit for purchasing 
Atlantic tunas issued under this part.
* * * * *

    11. In Sec.  635.71, paragraphs (b)(1), (b)(3), (b)(14), and 
(b)(15), are revised to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (b) * * *
    (1) Engage in fishing with a vessel that has been issued an 
Atlantic Tunas or Atlantic HMS permit 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 and/or brought 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.
* * * * *
    (3) Fish for, catch, retain, or possess a BFT less than the large 
medium size class by a person aboard a vessel other than one that has 
on board a valid HMS Angling or Charter/Headboat permit, or an Atlantic 
tunas Purse Seine category permit as authorized under Sec.  635.23 (b), 
(c), and (e)(2).
* * * * *
    (14) As a person aboard a vessel issued an HMS Angling or 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 person aboard a vessel issued an HMS Angling or HMS 
Charter/Headboat permit, sell, offer for sale, or attempt to sell a 
large medium or giant BFT retained when fishing under the circumstances 
specified in Sec.  635.23(b)(1)(iii) and (c)(1) through (c)(3).
* * * * *
[FR Doc. 02-31695 Filed 12-17-02; 8:45 am]
BILLING CODE 3510-22-S