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

SUMMARY: NMFS proposes regulations to implement the draft Fishery

Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP),

and draft Amendment 1 to the Atlantic Billfish Fishery Management Plan

(Billfish FMP). The proposed regulations would address requirements of

the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-

Stevens Act), implement recommendations of the International Commission

for the Conservation of Atlantic Tunas (ICCAT) as required by the

Atlantic Tunas Convention Act (ATCA), and consolidate existing

regulations, organized by species, for the conservation and management

of highly migratory species (HMS) into one part of the Code of Federal

Regulations (CFR), organized by theme, as part of the President's

Regulatory Reinvention Initiative.

NMFS previously published a Notice of Availability for the HMS FMP

and for Amendment 1 to the Billfish FMP. NMFS extends the comment

period for the HMS FMP and reopens the comment period for the Billfish

FMP to coincide with the proposed rule. NMFS will announce public

hearings to receive comments from fishery participants and other

members of the public regarding this proposed rule, the draft HMS FMP,

Amendment 1 to the Billfish FMP and associated supporting documents in

a separate Federal Register document. NMFS requests comments

specifically on the revised Initial Regulatory Flexibility Analysis

(IRFA), updated since publication of the Draft HMS FMP, and the IRFA

associated with the billfish management measures.

DATES: Comments on the proposed rule, the HMS FMP, Amendment 1 to the

Billfish FMP and/or supporting documents must be received by March 4,

1999. Public hearings on this proposed rule will be held in February

1999 and will be announced in a separate Federal Register document.

ADDRESSES: To submit comments on, or to obtain copies of, the draft HMS

FMP, the draft Amendment 1 to the Billfish FMP, the proposed rule and

supporting documents, including the revised IRFA, or a summary of these

items, contact Rebecca Lent, Chief, Highly Migratory Species Management

Division, Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West

Highway, Silver Spring, MD 20910-3282, phone (301) 713-2347, fax (301)

713-1917. Send comments regarding the burden-hour estimates or other

aspects of the collection-of-information requirements contained in this

proposed rule to Rebecca Lent and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Washington,

DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Pat Scida regarding tuna issues at

(978) 281-9260; Jill Stevenson regarding swordfish issues at (301) 713-

2347; Margo Schulze regarding shark issues at (301) 713-2347; Buck

Sutter regarding billfish issues at (727) 570-5447; Karyl Brewster-

Geisz regarding limited access at (301) 713-2347; and Chris Rogers

regarding the regulatory consolidation at (301) 713-2347.

SUPPLEMENTARY INFORMATION: Atlantic HMS included in the HMS FMP are

Atlantic swordfish (Xiphias gladius), west Atlantic bluefin tuna

(Thunnus thynnus), Atlantic yellowfin tuna (T. albacares), Atlantic

bigeye tuna (T. obesus), North Atlantic albacore tuna (T. alalunga),

west Atlantic skipjack tuna (Katsuwonus pelamis), 39 species of

Atlantic sharks grouped into three management sub-groups. Four species

of Atlantic billfish other than swordfish are also Atlantic HMS, and

they are included in the Billfish FMP: Atlantic blue marlin (Makaira

nigricans), Atlantic white marlin (Tetrapturus albidus), west Atlantic

sailfish (Istiophorus platypterus), and west Atlantic spearfish (T.

pfluegeri). U.S. fishing vessels, both commercial and recreational,

fish for Atlantic HMS in the North and South Atlantic Ocean, Gulf of

Mexico, and Caribbean Sea. The fisheries for Atlantic tunas, swordfish,

sharks, and billfish each have some unique characteristics, but they

overlap considerably in participants, gear usage, and species pursued.

Atlantic HMS migrate widely throughout the North and South Atlantic

Ocean, including the Mediterranean Sea, the Gulf of Mexico, and the

Caribbean Sea, requiring cooperative management not only among

different user groups within the United States, but also between the

United States and other fishing nations. In some cases, the United

States accounts for only a small portion of the total Atlantic-wide

mortality for a species, and unilateral management action could not be

expected to have significant effect on the status of the stock. In

other cases, the United States accounts for a larger portion of

Atlantic-wide fishing mortality, giving it more influence on total

fishing mortality levels. In all cases, however, the international

component of the fishery is an important consideration in developing

and implementing domestic management measures.

To meet requirements of the Magnuson-Stevens Act, NMFS prepared an

FMP for Atlantic tunas, swordfish and sharks and an amendment to the

Billfish FMP. NMFS published a Notice of Availability of the Draft

Amendment 1 to the Billfish FMP on October 9, 1998 (63 FR 54433) with a

comment period ending on January 7, 1999 and a Notice of Availability

of the Draft HMS FMP on October 26, 1998 (63 FR 57093) with a comment

period ending on January 25, 1999. NMFS extends the comment periods for

these documents to coincide with the comment period on this proposed

rule. Therefore, comments are invited and may address the HMS FMP,

Amendment 1 to the Billfish FMP, the supporting documents, the proposed

rule or all of these items, but must be received by March 4, 1999 to be

considered in the decisions on the HMS FMP, Amendment 1 to the Billfish

FMP and the final rule. All comments received by March 4, 1999, whether

specifically directed to any of the documents or to the proposed rule,

will be considered in the decisions on the final documents and the

final rule.

The following is an outline of the information presented in the

preamble to this proposed rule:

I. Background

A. Regulatory Consolidation

B. Fishery Management Plans

C. The HMS Management Process

II. Management Strategy

A. Problems and Objectives

B. Management Measures

III. Quotas and Monitoring/Adjustment Procedures

A. Quotas

B. Accounting for All Sources of Fishing Mortality

C. Quota Adjustment Procedures

IV. Restrictions on Catch and Retention

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V. Minimize Bycatch and Bycatch Mortality

A. Marine Mammal Bycatch

B. Finfish Bycatch

VI. Improve Data Collection and Enforcement

VII. Administrative and Procedural Changes

VIII. Limited Access Program

A. Permit Categories

B. Eligibility Criteria

C. Permit Process

D. Transfer of Permits

E. Vessel Upgrading

F. Ownership Limits

IX. Essential Fish Habitat (EFH)

X. Minor Administrative and Technical Changes

XI. Applicability of Regulations in State Waters

I. Background

A. Regulatory Consolidation

On November 6, 1996, NMFS published a proposed rule consolidating

fishery regulations pertaining to Atlantic HMS (61 FR 57361).

Background information about the need for the consolidation appeared in

the preamble to that proposed rule and is not repeated here. Since that

proposed rule was issued, several significant changes to HMS

regulations were made necessary by new legislative requirements, ICCAT

recommendations, and several domestic management initiatives including

limited access systems for the Atlantic swordfish and shark fisheries.

Considering comments submitted to date, NMFS elected to re-propose the

technical and administrative changes from the consolidation in the

context of the HMS FMP implementation. This proposed rule carries out

the President's directive on regulatory reform with respect to existing

regulations for the conservation and management of Atlantic HMS in the

exclusive economic zone (EEZ), and, as applicable, in regulatory areas

beyond the U.S. EEZ.

Regulations pertaining to management of Atlantic HMS are currently

found in species-specific sections of the Code of Federal Regulations

(50 CFR parts: 285--Atlantic Tunas Fisheries, 630--Atlantic Swordfish

Fishery, 644-Atlantic Billfishes, and 678--Atlantic Sharks). These

regulations are proposed to be consolidated into a new part: 635-

Atlantic Highly Migratory Species. The intent is to make the

regulations more concise, clearer, and easier to use than the previous

regulations.

B. Fishery Management Plans

Atlantic HMS that transit the U.S. EEZ are managed under the

authority of the Magnuson-Stevens Act and, in the case of tunas,

swordfish, and billfish, also under ATCA. ATCA authorizes the Secretary

of Commerce to implement the binding recommendations of ICCAT, to which

the United States is a contracting party. ICCAT recommends harvest

levels, minimum sizes, and other management measures for implementation

by its 25 contracting parties. Through its scientific body, ICCAT

conducts stock assessments and other Atlantic HMS-related research. It

is the intent of the HMS FMP and Amendment 1 to the Billfish FMP to

issue regulations for HMS fishery management under the dual authority

of ATCA and the Magnuson-Stevens Act, whenever possible. In some cases,

such as for sharks, management authority is limited to the Magnuson-

Stevens Act; in other cases, such as for South Atlantic swordfish and

southern albacore, the Magnuson-Stevens Act does not apply because the

stock does not venture into the U.S. EEZ.

The Magnuson-Stevens Act is the primary legislation affecting

domestic management of fisheries in the U.S. EEZ. Further guidance on

interactions of HMS fisheries with protected resources is given under

the Endangered Species Act (ESA) and the Marine Mammal Protection Act

(MMPA). Provisions of the Magnuson-Stevens Act allow NMFS and the eight

regional fishery management councils (the Councils) to develop FMPs

that are implemented through regulations to manage the Nation's fishery

resources. Generally, FMPs contain objectives for each fishery and

guidance on allowable gear types in the fisheries; acceptable harvest

levels; restrictions on the time, area, or manner in which fish may be

caught; and consideration of how the fishery affects other parts of the

marine ecosystem or coastal communities, including essential fish

habitat (EFH), non-target finfish, marine mammals, sea turtles, and sea

birds.

FMPs and their implementing regulations must be consistent with

each of the 10 national standards set forth in the Magnuson-Stevens

Act, as well as with the Act's general requirements for the contents of

FMPs and the Act's requirement that overfished fisheries be rebuilt.

Additionally, FMPs to manage HMS and their implementing regulations

must be consistent with section 304(g) of the Magnuson-Stevens Act,

which pertains specifically to Atlantic HMS and requires NMFS to

consult with the Councils and advisory panels (APs); minimize

disadvantages resulting from implementation of domestic conservation

and management measures to U.S. fishermen relative to international

fisheries to the extent practicable; provide a reasonable opportunity

for fishermen to harvest an allocation, quota, or fishing mortality

level allocated to the United States under an international agreement;

review, on a continuing basis, and revise as appropriate measures

included in this plan; and diligently pursue, through international

entities, comparable international management measures. Regarding HMS

management, NMFS is also required to ensure that management measures

promote international conservation; consider traditional fishing

patterns of the U.S. fleet; allocate fishing privileges fairly and

equitably; and promote, to the extent practicable, research programs

that include tagging and release of HMS.

Currently, Atlantic billfish, swordfish, and sharks are managed

under FMPs developed and implemented under the authority of the

Magnuson-Stevens Act. No Magnuson-Stevens Act FMP has previously been

developed for Atlantic tunas, although regulations have been developed

under ATCA with consistency with the Magnuson-Stevens Act in mind. The

draft HMS FMP integrates management of Atlantic tunas, swordfish, and

sharks by combining management measures for the three species groups

into one FMP. NMFS elected to combine the FMP for tunas, swordfish, and

sharks in recognition of the multispecies nature of these fisheries and

to promote better integration of HMS management. A single management

plan for these species will help ease the regulatory burden on user

groups and is consistent with the ecosystem-oriented provisions of the

National Environmental Policy Act and with the Presidential Regulatory

Reform Initiative.

The U.S. fishery for Atlantic billfish is a recreational fishery

only (no commercial retention is allowed) and, given its unique

characteristics, will continue to be managed separately under the FMP

for Atlantic Billfish. However, NMFS recognizes the multispecies nature

of all HMS fisheries and the need for well-integrated management of

fishing activity for all HMS. Wherever possible, management objectives

and practices are integrated, and analyses have been conducted with

consideration of the overlapping participation, target species, and

habitats of these multispecies fisheries. The HMS FMP and Amendment 1

to the Billfish FMP overlap in certain preferred measures due to the

multispecies nature of the recreational and pelagic longline fisheries

and the need for combined data collection in all

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HMS fisheries. This proposed rule would implement both the integrated

HMS FMP and Amendment 1 to the Billfish FMP.

C. The HMS Management Process

The HMS Management Process encompasses administrative procedures

that NMFS follows in developing FMPs and implementing regulations.

Congress gave the Secretary of Commerce (Secretary) management

authority for Atlantic HMS in 1990, following many years of joint

management for several of these species by the five Atlantic, Gulf, and

Caribbean Councils and for Atlantic tunas under ICCAT. The Secretary

has delegated management of Atlantic HMS to the Administrator of NOAA,

who delegated it to the Assistant Administrator for Fisheries, NMFS

(AA). Within NMFS, daily responsibility for management of Atlantic HMS

fisheries rests with the Office of Sustainable Fisheries, and is

carried out by the HMS Management Division.

The development of an FMP or plan amendment commences with the

preparation of a document that describes issues in the fisheries and

states options for management (the scoping document). The October 1997

scoping document, which covered all HMS species, was used as the basis

for discussion at 21 public scoping meetings that were held throughout

the management region in October and November 1997 (62 FR 54035,

October 17, 1997). Public comments at scoping meetings and during the

accompanying comment period were reviewed and considered in preparation

of draft HMS FMP documents.

The HMS AP and the Billfish AP were established pursuant to the

Magnuson-Stevens Act (section 302 (g)(1)). The HMS AP advised NMFS

throughout the development of the scoping document and of the draft

FMP. The HMS AP is composed of representatives of the commercial,

recreational, environmental, and scientific sectors, as well as one

representative from each of the five fishery management councils that

work with Atlantic HMS and the Chair, or the Chair's designee, of the

U.S. ICCAT Advisory Committee. Each of the Atlantic and Gulf Coast

states, as well as the Virgin Islands and Puerto Rico, may send a non-

voting representative to AP meetings to participate in the process. The

Billfish AP is composed of members of the recreational, commercial,

environmental, and scientific communities, as well as fishery

management council representatives and non-voting state members. AP

meetings are open to the public, and NMFS rotates meeting locations

throughout the management region to provide fishery participants a

reasonable opportunity to attend meetings. For all but the final

meetings, the HMS and Billfish APs convened at the same locations with

agendas arranged to allow joint discussion of overlapping issues.

The HMS AP met six times in development of the draft HMS FMP. At

the first meeting, in October 1997, members of both APs provided input

on the draft scoping document. The document was extensively revised

following the APs' input before it was distributed to the general

public (62 FR 54035, October 17, 1997). The second AP meeting, held in

Baltimore, MD, in January 1998, focused on Atlantic bluefin tuna (BFT)

issues, specifically, on quota allocations and effort controls for the

HMS AP. The Billfish AP discussed the implementation of an ICCAT

recommendation to reduce billfish landings by 25 percent by 1999, and

NMFS subsequently implemented measures through an interim rule under

the authority of the Magnuson-Stevens Act. At its third meeting, held

in Tampa, FL, in March 1998, the HMS AP and the Billfish AP advised

NMFS on criteria that should be considered in overfishing definitions,

and developing rebuilding programs for overfished HMS.

The AP reviewed draft sections of the HMS FMP at its fourth meeting

in Hauppauge, NY, in May 1998. Draft sections included issues and

objectives for management, the management unit, alternatives to rebuild

overfished fisheries, and descriptions of fishing activities. In July

1998, the Billfish AP and the HMS AP met in Alexandria, VA, to discuss

measures that would minimize bycatch and bycatch mortality in all HMS

fisheries, and the HMS AP met separately to discuss shark issues. The

HMS AP reviewed the pre-draft HMS FMP at its sixth meeting, held August

27-28, 1998, in Warwick, RI. The Billfish AP reviewed the pre-draft

Amendment 1 to the Billfish FMP at its sixth meeting, held September 2-

3, 1998, in St. Croix, U.S. Virgin Islands. These draft documents had

been extensively revised following each AP meeting.

Restrictions on the billfish fishery to implement the ICCAT

recommendation were discussed in several AP meetings and resulted in an

interim rule (63 FR 14030, March 24, 1998), which established

tournament registration and reporting requirements, and increased

minimum sizes for blue and white marlin. An extension of that interim

rule followed (63 FR 51859, September 29, 1998), which further

increased the blue marlin minimum size and established a retention

limit of one marlin per vessel per day (adjustable by the AA). An

amendment to that rule removed the measure that would allow the AA to

reduce the retention limit to zero. NMFS also proposes these measures

as part of this rule to implement Amendment 1 to the Billfish FMP.

This proposed rule would implement the preferred alternatives

identified in the draft HMS FMP (63 FR 57093, October 26, 1998) and

Amendment One to the Billfish FMP (63 FR 54433, October, 9, 1998). NMFS

will hold a series of public hearings to solicit comments on this

proposed rule and the FMP documents. The purpose of the public hearings

is to provide NMFS with additional information to evaluate impacts and

the effectiveness of the proposed measures. NMFS has updated the

economic analyses related to the HMS FMP and Amendment 1 to the

Billfish FMP since their publication to include updated analyses of

limited access under more recent eligibility criteria, and analyses of

billfish measures, respectively. NMFS specifically requests comments on

these updated analyses. During the comment period, NMFS will hold

additional HMS and Billfish AP meetings.

II. Management Strategy

The regulations contained in this proposed rule would completely

replace current regulations for all Atlantic HMS, including billfish.

Thus, NMFS intends that the regulatory text proposed here restates all

existing regulations that it intends to retain. In addition to the

consolidation of current regulations, NMFS proposes numerous regulatory

changes to incorporate new elements of the HMS FMP and Amendment 1 to

the Billfish FMP (e.g., rebuilding overfished stocks) and to achieve

consistency in the HMS regulations. NMFS has performed a thorough

review of the restructured regulatory text to ensure that all changes

are noted. However, given the scope of the restructuring, certain

changes may not be specifically identified and explained, or unintended

changes may have been made. Identification of, and comments on any such

inadvertent or unexplained changes are specifically invited.

A. Problems and Objectives

Amendment 1 to the Atlantic Billfish FMP identifies several

management problems affecting billfish stocks: (1) Overfished blue and

white marlin stocks, (2) excess fishing mortality

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caused by bycatch and discards, (3) compliance with ICCAT

recommendation to reduce marlin landings, (4) need for improved data

collection, and (5) decreased or unknown stock levels of sailfish and

longbill spearfish.

Several management objectives are presented in draft Amendment 1 to

the Billfish FMP to address these problems: (1) Prevent overfishing,

(2) rebuild stocks and monitor all fishing mortality from directed and

incidental catch, (3) promote comparable international conservation,

(4) minimize bycatch and bycatch mortality to the extent practicable,

(5) coordinate multispecies fisheries, (6) improve data collection, (7)

promote live release of billfish, (8) protect EFH, (9) manage for

optimum yield, and (10) minimize adverse impacts on recreational and

commercial activities. Amendment 1 would add these to the existing

objectives of the Billfish FMP.

The following management problems are identified in the HMS FMP:

(1) Overfished populations of HMS, (2) excess fishing mortality caused

by bycatch and discards, (3) inconsistencies and inadequacies in

international compliance with conservation and management measures, (4)

the need to assure optimal data collection, (5) the need for integrated

and streamlined domestic HMS management, and (6) overcapitalization.

The draft HMS FMP lists several management objectives for the

fisheries for Atlantic tunas, swordfish, and sharks, paraphrased here:

(1) Prevent overfishing, (2) rebuild stocks, (3) minimize adverse

impacts of rebuilding to the extent practicable, (4) control all

components of fishing mortality, (5) minimize bycatch and bycatch

mortality to the extent practicable, (6) establish a foundation for

international negotiation on conservation and management, (7)

facilitate compliance with ICCAT recommendations, (8) improve data

collection, (9) simplify and streamline HMS management, (10) manage for

continuing optimum yield, (11) protect areas identified as EFH for

tunas, swordfish, and sharks, and (12) reduce overcapitalization in the

Atlantic swordfish and shark commercial fisheries. Conservation and

management measures to address these objectives follow.

B. Management Measures

To address these objectives, NMFS proposes domestic management

programs for all HMS. Although the management measures are domestic

actions, stock status and rebuilding programs are designed to be

implemented stock-wide. NMFS also suggests specific measures to be

addressed internationally by ICCAT. These measures include proposed

overfishing status determination criteria, designation of biomass and

fishing mortality targets, and a suite of proposed management

alternatives that are intended to reduce fishing mortality on

overfished species, and to minimize bycatch and bycatch mortality, to

the extent practicable.

III. Quotas and Monitoring/Adjustment Procedures

A. Quotas

Quotas for HMS are implemented and allocated among fishing

categories and seasons by the AA. The Director of the Office of

Sustainable Fisheries has been delegated the authority to make inseason

adjustments among categories and adjustments to each period's quota

based on overharvest or underharvest during the previous year.

NMFS proposes rebuilding programs for North Atlantic swordfish in

the draft HMS FMP. However, NMFS cannot implement management measures

that effectively raise or lower the quota the United States receives

from ICCAT. Therefore, this proposed rule incorporates existing U.S.

quotas for swordfish stocks. The draft HMS FMP did not identify a

preferred rebuilding alternative for bluefin tuna. In the future, the

United States may seek to negotiate quotas and other measures that

contribute to rebuilding of swordfish and BFT through the international

process, including counting dead discards of swordfish against the

quota. NMFS proposes that the existing quotas established for North

Atlantic swordfish (through 1999) and South Atlantic swordfish (through

2000) under ATCA remain in effect pending new stock assessments (in

1999) and further recommendations of ICCAT.

Based on the results of the 1998 ICCAT meeting, and recommendations

regarding BFT, NMFS will prepare an addendum to the HMS FMP. The

addendum will specifically address BFT quota and discard issues

addressed under ICCAT's recommendation to establish a rebuilding

program for west Atlantic BFT. It is NMFS' intent to publish this

addendum before the end of 1998 or shortly thereafter. For the large

coastal shark (LCS) management unit, NMFS is proposing to separate the

LCS unit into two subgroups based on the presence or absence of a mid-

dorsal ridge, which is easily identified after the carcass has been

dressed. NMFS proposes to use this characteristic to separate the LCS

into a ``ridgeback'' subgroup (which would include sandbar and silky

sharks) and a ``non-ridgeback'' group (which would include blacktip,

spinner, bull, tiger, nurse, lemon, narrowtooth, great hammerhead,

scalloped hammerhead, and smooth hammerhead sharks) and to establish

separate quotas and management measures for the two subgroups.

NMFS is also proposing to prohibit possession of certain shark

species that are uncommon in U.S. waters or are seriously depleted

(note discussion under Retention Limits). To reduce mortality on

ridgeback LCS, NMFS also proposes to establish a minimum size for

retention of ridgeback LCS of 54 inches (137 cm) fork length. Observer

data indicate that the primary ridgeback LCS, the sandbar shark,

segregates by size and depth. Therefore, NMFS expects a reduction in

fishing mortality since fishermen should be able to target larger

sandbar sharks. Because of the expectation that this minimum size for

ridgeback sharks (in combination with other management measures) will

reduce ridgeback LCS harvests by the amount necessary to rebuild this

subgroup, NMFS proposes to maintain the current ridgeback LCS harvest

levels of 642 mt dressed weight (dw).

NMFS is not proposing to establish a minimum size for non-ridgeback

sharks due to indications that the primary non-ridgeback LCS, the

blacktip shark, does not segregate by size or depth and that a minimum

size would not reduce fishing mortality. To reduce mortality for these

species, NMFS is proposing to lower the commercial quota for non-

ridgeback LCS by 66 percent from current catch levels to 218 mt dw.

For the pelagic shark management unit, NMFS is proposing to

establish a separate porbeagle shark quota of 30 mt dw based on

historical harvest levels. NMFS also proposes to subtract that quota

from the pelagic shark quota, resulting in a 550 mt dw quota for

pelagic sharks, other than porbeagle. This measure is intended to

establish separate controls for porbeagle sharks because this species

is highly susceptible to overfishing. NMFS is also proposing to

prohibit possession of blue sharks and to establish a quota for blue

shark dead discards of 273 mt dw, based on a 10-year dead discard

average. NMFS is proposing to reduce the pelagic shark quota each year

by any overharvest of the blue shark dead discard quota occurring in

the previous year. The intent of these measures is to address concerns

regarding the high numbers of blue sharks discarded dead by longline

fisheries and to create an incentive to reduce blue shark dead

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discards, while mitigating the potential adverse impacts of counting

dead discards against the available quota.

For the small coastal shark (SCS) management unit, NMFS is

proposing to cap the commercial quota at 359 mt dw, which is 10 percent

higher than 1997 harvest levels. This measure is intended to allow for

limited fishery expansion but would eliminate the potential for

excessive growth of this fishery. This measure is also proposed because

NMFS believes that SCS landing statistics may substantially

underestimate SCS mortality. This is a result of unreported catches of

SCS because they are used for bait and thus are not always landed.

In November 1997, ICCAT adopted a recommendation with several

measures to address billfish resources throughout the Atlantic Ocean,

including reduction of Atlantic blue marlin and Atlantic white marlin

landings by at least 25 percent from 1996 levels, starting in 1998, to

be accomplished by the end of 1999. Reductions will be assessed in 2000

based on landing data through 1999. Delaying the stock assessment until

2000 (per the 1998 ICCAT recommendation) will allow preliminary

evaluation of the effectiveness of landing reductions for over-

exploited Atlantic billfish resources. A total of 34.9 mt of Atlantic

blue marlin and 3.3 mt of Atlantic white marlin were reported as

recreational landings for the U.S. in 1996. Therefore, under the 1997

ICCAT recommendation, the U.S. landing limits for Atlantic blue marlin

will be 26.2 mt, and 2.48 mt for Atlantic white marlin.

B. Accounting for All Sources of Fishing Mortality

NMFS seeks to account for all sources of fishing mortality on HMS

stocks. In recreational HMS fisheries, post-release mortality rates are

currently unknown; however, recorded dead discards of HMS are minimal.

ICCAT currently subtracts an estimate of dead discards of BFT from the

total allowable catch to allocate a stock-wide landing quota, a portion

of which is then allocated to the United States. NMFS may seek this

type of strategy with respect to all species.

For the Atlantic tunas fishery, NMFS proposes to establish a

reserve quota for school BFT (27 inches - th day of the month for

HMS received on the 1st through the 15th days of

each month, and not later than the 5th day of the following

month for HMS received on the 16th through the last day of

each month.

10. Current regulations that prohibit sale of billfish are unclear

concerning the sale of such related species as striped marlin, black

marlin, shortbill spearfish. The consolidation would clarify the

regulatory text to achieve consistency with the prohibition on sale as

implemented through the certificate of eligibility requirements for

sale of billfish and related species. All billfish species found in

commerce would be considered to be Atlantic billfish unless accompanied

by a Certificate of Eligibility.

11. Regulations applicable to the swordfish donation program would

be removed as unnecessary codified text. Donation programs for

swordfish or any of the regulated HMS could be established and

adequately enforced under a specific letter of authorization.

12. Current regulations prohibit a change of tuna permit category

after May 15. This restriction was imposed so that a vessel could not

fish in more than one quota category subsequent to the June 1

commencement of the Harpoon and General category BFT fishing seasons.

Existing regulations have not prevented some vessel operators from

fishing under the bluefin tuna Incidental category prior to May 15 and

in the General category after June 1. Under this proposed rule,

Atlantic tunas permit category changes would be limited to one change

each year, between January 1 and May 15. No permit changes would be

permitted from May 16 through December 31, regardless of sale of a

vessel. This would prevent commercial vessel operators from fishing for

bluefin tuna in more than one commercial quota category in a single

year. To be consistent among all categories, the one-per-year limit on

category changes for Atlantic Tunas permits would also apply to

recreational vessels obtaining Angling category permits.

13. To facilitate enforcement of minimum size and retention limit

regulations and to facilitate identification of species, all Atlantic

tunas would be required to be landed with the tail attached.

14. The set-aside of swordfish quota for the harpoon segment of the

directed fishery would be removed because it is unnecessary. A prior

rulemaking established the swordfish fishing year and first semiannual

quota period beginning June 1. When the fishing year and the first

semiannual period began on January 1, a set-aside was needed because

the summer harpoon fishery could be precluded by a directed fishery

closure at the end of the period. The change in fishing year has

eliminated this problem.

15. Gear restrictions applicable to specific categories of tuna

permits would be limited to fishing activity for bluefin tuna. In a

prior rulemaking, the requirement for tuna permits was extended from

BFT to all Atlantic tunas. Gear restrictions necessary to implement

category quotas for bluefin tuna were carried over to apply to all

Atlantic tunas. Because Atlantic tunas other than bluefin are not

subject to quotas, gear restrictions are not necessary, with the

exception of driftnets.

16. Much of the regulatory text regarding restrictions on imports

would be removed as obsolete since ATCA has been amended. The

Department of State will be consulted during the comment period for

this proposed rule, as necessary, to ensure that the revised trade

restrictions regulations comply with ATCA. NMFS implemented a final

rule in 1997 that banned the import of BFT from Belize, Honduras, and

Panama as a result of an ICCAT recommendation. Further, NMFS proposed

trade restrictions for Atlantic swordfish on October 13, 1998 (63 FR

54661). The final rule to implement the HMS FMP will include any

finalized trade restrictions that result from that separate rulemaking

for swordfish.

17. Except for applications for an initial limited access permit,

vessel and dealer permit applicants will have up to 30 days to submit

required information not supplied with original applications,

otherwise, the application will be considered abandoned. Information

changes must be reported within 30 days for permits to remain valid.

18. Logbook requirements approved under OMB control number 0648-

0016 would apply to commercial and for-hire tuna vessels only if

selected by NMFS. Initially, a sample of vessels from each permit

category, (except for Charter/headboat permit holders, which will all

be selected), will be selected to evaluate reporting forms and

reporting schedules.

19. To enhance flexibility in business decisions, purse seine

notification would be set at 24 hours prior to sailing or landing, with

automatic waiver of inspection requirements if not undertaken within 24

hours of notification.

20. To be consistent with revised 50 CFR 600.745, Sec. 635.32

incorporates new policies and procedures on issuance of letters of

authorization, exempted

[[Page 3167]]

fishing permits, and scientific research permits.

21. Technical changes were made to reflect NMFS reorganization by

changing references from Regional Director to Regional Administrator

and from Science and Research Director to Science Director. Where

necessary, cross references to regulations in other CFR parts were

updated.

22. The method of taking tuna measurements was amended to conform

with instructions given in past years and to reflect an analysis of

measurement conversion data obtained in 1996.

23. Given the increased use of inseason retention limit adjustments

to restrict harvest in the BFT Angling category to seasonal and

geographic subquotas, the retention limit for school, large school, and

small medium BFT is established at one per vessel, per day. This

retention limit may be adjusted inseason through one or more

specification notices published in the Federal Register.

24. Changes were made to the BFT trophy catch provisions applicable

within the Gulf of Mexico to clarify that anglers may retain large

medium or giant BFT onboard vessels permitted in the Angling or

Charter/Headboat categories if taken incidental to fishing for other

species.

25. Specific regulatory text was added to prohibit purchase or

possession by dealers of undersized Atlantic swordfish landed by

fishing vessels of the United States.

26. Technical revisions were made to the bluefin tuna statistical

document (BSD) program. Current regulations require that a BSD be

completed and provided to NMFS for import or export of bluefin tuna.

NMFS has recently acquired import records from U.S. Customs that

indicate non-compliance with the BSD program, particularly for imports.

Revisions are necessary to clarify procedures for BSD filing by

defining import, importer, export and exporter, and by specifying

circumstances under which a BSD must be completed. These revisions do

not materially change the requirements, but provide more explicit

instructions for the benefit of both tuna dealers and NMFS/Customs

enforcement.

27. Revisions are also made to the ICCAT port inspection scheme. At

its 1997 meeting, ICCAT recommended revisions to its port inspection

scheme, to which the United States is a party. These revisions are

technical in nature and serve to clarify the authority for inspections,

procedures for inspections, and the requirements for reports to flag

states and the ICCAT Secretariat. The revisions are not substantive and

only standardize procedures already in place for most contracting

parties that have adopted the port inspection scheme.

28. A revision to the Angling category trophy fish tagging

requirement is made to provide coordination with harvest tagging

programs for school, large school, and small medium fish as implemented

by NMFS or by any of the States. In coordinating such programs, the

burden on anglers and NMFS enforcement will be reduced.

29. NMFS has removed the notification requirement for vessels

transiting the Panama Canal with regulated species on board. This

requirement was originally implemented for purse seine vessels

offloading Pacific tuna catch at canneries in Puerto Rico. NMFS

believes that fishing and offloading practices have changed so as to

make this regulation obsolete.

30. The effective date of all regulatory amendments and inseason

actions will be the date of filing with the Office of the Federal

Register or, if subject to delayed effectiveness, on the prescribed

period of delay based on the date of filing. Existing regulations

variously refer to dates of filing or publication, with the publication

delay normally three or four days. The discrepancies arise from

balancing the need for timely action with the need for advance

notification. Given the ability to rapidly communicate with fishery

interest groups via the HMS Fax Information Network and NOAA weather

radio, standardizing the effective date relative to filing will allow

NMFS to be more responsive without unduly restricting the advance

notification required by fishery participants.

XI. Applicability of Regulations in State Waters

State regulations applicable to ICCAT-managed species (Atlantic

tunas, swordfish, and billfishes) that are less restrictive than

Federal regulations or are not effectively enforced are subject to

preemption by Federal regulations under section 971g(d) of ATCA.

Pursuant to 971g(e) of ATCA, the Secretary of Commerce is required to

perform a continuing review of the laws and regulations of all states

for which preemption by Federal regulations applies and the extent to

which such laws and regulations are enforced. Also, under section

306(b)(1) of the Magnuson-Stevens Act, after notice and an opportunity

for a hearing, Federal regulations may apply within state waters if the

state has taken action or omitted to take action which will

substantially and adversely affect the carrying out of Federal FMPs and

the regulations to implement them (16 U.S.C. 1801 et seq.).

In an effort to review those regulations and make determinations

about preemption, NMFS contacted the following states: Alabama,

Connecticut, Delaware, Florida, Georgia, Louisiana, Maine, Maryland,

Michigan, Massachusetts, Mississippi, New Hampshire, New Jersey, New

York, North Carolina, Pennsylvania, Rhode Island, South Carolina,

Texas, Virginia, Puerto Rico, and the U.S. Virgin Islands.

As of October 1998, NMFS has received replies from the following

states: Florida, Georgia, Louisiana, Massachusetts, New Jersey, North

Carolina, and Virginia. With the issuance of this proposed rule, NMFS

will again contact the states to request information regarding state

regulations applicable to ICCAT-managed HMS and the gear used in

fisheries targeting or catching them.

NMFS will be conducting public hearings in several states regarding

the proposed regulations to implement the HMS FMP and Billfish

Amendment. In addition, NMFS will contact all Atlantic Coast states and

territories to determine if additional hearings on the FMPs and

proposed regulations are necessary, particularly regarding the

preemption issue. NMFS intends to coordinate and consult with all

Atlantic Coast states and territories to meet management objectives and

to achieve regulatory consistency.

Classification

This proposed rule is published under the authority of the

Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the Atlantic Tunas

Convention Act, 16 U.S.C. 971 et seq.

NMFS has concluded that this proposed rule to implement the HMS FMP

would have a significant economic impact on a substantial number of

small entities. Specifically, the time/area closure for pelagic

longline fishermen in the Florida Straits, the non-ridgeback LCS quota

reduction, and limited access measures for the shark fishery would have

a significant economic impact on affected entities. In combination, the

proposed alternatives for sharks and swordfish would also have a

significant economic impact on a substantial number of small entities.

Accordingly, an IRFA has been prepared to accompany the HMS FMP. A

summary of the IRFA regarding these issues follows:

[[Page 3168]]

Time/Area Closure for Pelagic Longline Fishing

NMFS proposes to ban the use of pelagic longline gear in the

Florida Straits between July and September. The preferred time/area

closure would likely have significant economic impacts for 17 of the 20

vessels that fish in that area at that time.

NMFS considered several alternatives that would reduce catches of

small swordfish and that could have less severe economic impacts on the

pelagic longline fishery participants. The alternatives included

continuing the existing minimum size (33 lb, or 15 kg dw) and counting

dead discards against the swordfish quota. If ICCAT adopts a

recommendation that dead discards should count against the quota, NMFS

will further consider this measure in future rulemaking. Although these

alternatives may have lesser economic impacts on the pelagic longline

fishery participants and provide incentives to reduce small swordfish

catch, neither measure guarantees reduced discards of undersized

swordfish.

NMFS also considered the alternative of closing other areas with

high swordfish discard rates in addition to the Florida Straits. NMFS

rejected this alternative for several reasons, including the

significant economic impacts expected on additional pelagic longline

participants. NMFS may consider closing these areas in the future if

deemed necessary to reduce the bycatch of undersized swordfish.

Although the status quo alternative (no time/area closure) would have

less of an economic impact in the short term, this alternative was

rejected because it is not expected to meet the statutory objectives of

reducing the discard rate and rebuilding the stock. Thus, in the long

term, the status quo alternative may have even greater significant

impacts for all pelagic longline participants.

Non-Ridgeback LCS Quota Reduction

NMFS proposes to separate the current LCS management unit into

ridgeback and non-ridgeback LCS and to reduce the quota for non-

ridgeback LCS by 66 percent (by weight). This alternative is expected

to minimize adverse economic impacts on LCS fishermen by allowing

higher harvest levels than those maintained if the LCS management unit

were kept as a single unit. This measure should rebuild ridgeback LCS

stocks consistent with the Magnuson-Stevens Act requirements to rebuild

overfished fisheries and to consider the impacts of fishery resources

on communities. NMFS estimates that 53 participants may cease business

operations due to this alternative.

NMFS considered other alternatives, including keeping the LCS

management unit as a single group, with status quo reduced, and zero

harvest levels, as well as implementing a phased-in quota for non-

ridgeback LCS. Some of these quota alternatives, such as a closure,

would meet the management objectives of rebuilding LCS stocks, and

would have significant negative economic impacts in the short term, but

would have economic benefits in the long term. Other alternatives

considered, such as status quo, would have little or no negative

economic impacts in the short term, but they would have significant

negative economic impacts in the long term if the stock continued to

decline. Additionally, the status quo alternative may possibly have no

positive economic benefits and would not meet the statutory objectives

to rebuild the LCS stock. NMFS chose the alternative that minimizes the

short and long term economic impacts while also rebuilding LCS stocks.

Limited Access to the Atlantic Swordfish and Shark Fisheries

The proposed limited access system would affect all current permit

holders in the Atlantic swordfish and shark fisheries and those vessels

fishing for Atlantic tunas with longlines. The intent of limited access

is to exclude only those fishermen whose logbook records indicate they

are neither active nor dependent on the swordfish and shark fisheries

except that tuna longliners would automatically receive a swordfish or

shark limited access permit to authorize landing of incidental catch.

The proposed limited access program for swordfish is not expected to

have a significant economic impact on a substantial number of small

entities. However, a similar analysis indicates that, due to the

proposed limited access system for the shark fishery, a significant

number of shark vessels (48) would be forced to cease business

operations. NMFS found that many of these vessels were directing for

sharks in 1997 (the year used in the analysis) but had left the fishery

in 1998, and, therefore, would not qualify under the proposed limited

access system. Thus, NMFS believes that many of the vessels that the

analysis indicates would not be eligible for permits may have already

left the fishery due to circumstances other than limited access.

Because this limited access system is not intended to remove any active

entity dependent on the fishery, NMFS may reconsider the requirement of

having held a permit during the open season in 1998 for sharks, based

on comments received on this proposed rule.

The other alternatives regarding the implementation of limited

access for swordfish and shark fisheries include a range of permit and

landings history (eligibility) alternatives, incidental harvest limits,

and permit transfer and vessel upgrade restrictions. While these

alternatives might have lesser economic impacts on the fishery

participants, NMFS believes those alternatives may be inconsistent with

the objectives of removing inactive permits and limiting increases in

the harvesting capacity of the fleet.

The draft HMS RIR/IRFA provides further discussion of the economic

effects of all the alternatives considered in the draft HMS FMP.

To ensure that the impacts of the Amendment 1 to the Billfish FMP

are fully analyzed, NMFS has prepared an IRFA pursuant to 5 U.S.C. 603

without regard to whether the proposed action would have a significant

economic impact on a substantial number of small entities. A summary of

the IRFA follows:

Adjustment to Billfish Retention Limit

NMFS proposes to institute a retention limit of one Atlantic

billfish per vessel per trip with an additional provision that would

reduce the retention limit for blue and/or white marlin to zero if

landing limits for Atlantic blue marlin and/or white marlin are reached

(26.2 mt and 2.48 mt, respectively). Cumulative landings would be

determined from the most recent tournaments and from other state or

federal data sources. Implementation of a zero retention limit, or just

the possibility of such, may affect participation in Atlantic billfish

tournaments. NMFS has received indications that tournaments may be

canceled or may experience a significant reduction in participation if

fishermen are not allowed to land a billfish that meets the legal size

constraints. The zero retention limit provision was included in this

proposed rule to avoid exceeding the 1997 ICCAT recommended landing

levels for blue and white marlin. In other words, this measure would

allow recreational fishermen to land billfish until the landing limits

are reached. NMFS believes that this measure, while it may reduce

tournament participation in the short-term, will aid in rebuilding the

stocks, thus increasing participation in the long term.

NMFS considered other alternatives to reduce the landings of

Atlantic billfish, including prohibiting possession of Atlantic

billfish by all

[[Page 3169]]

U.S.-flagged recreational vessels. This alternative was not selected

because it was considered to be too drastic in lowering landings

unnecessarily. In addition, the mortality of Atlantic billfish

recreationally caught by U.S. anglers is small relative to Atlantic-

wide mortality levels. Thus, the short- and long-term negative economic

impacts experienced by entities who rely on the billfish recreational

fishery would exceed any advantages of this measure on rebuilding

billfish stocks. This alternative would also put U.S. fishermen at a

disadvantage compared with fishermen from other countries.

Another alternative considered would allow Atlantic blue marlin and

Atlantic white marlin to be landed only during fishing tournaments and

from charter vessels. All other recreational landings of Atlantic

marlin (this alternative did not include sailfish) would be prohibited.

Although this alternative might minimize any negative economic impacts

on tournament sponsors and charter vessel owners, NMFS rejected this

alternative because it would have a discriminatory impact on private

vessels operating outside tournaments.

The last alternative considered would prohibit landing of billfish

in conjunction with a tournament to be released (i.e., require all

tournaments to be ``no-kill''). Atlantic billfish could still be landed

during other recreational efforts. NMFS believes that this alternative

would not reduce Atlantic billfish landings or economic impacts because

Atlantic billfish tournaments are currently moving toward alternative

means to measure angler success in catching billfish.

Adjustment to a Higher Minimum Size Limit

NMFS considered other alternatives to reduce the landings of

Atlantic billfish, including the minimum sizes implemented in the

interim rule. This alternative would also provide NMFS the authority to

increase the minimum size limits in season, rather than decreasing the

retention limits to ensure compliance with the ICCAT landings limits

for marlins. NMFS believes that this alternative could restrict

landings to the allowable level without undue economic impacts because

very large Atlantic billfish could still be landed in tournaments or

for mounting purposes by private anglers. In this way, the potential

for landing a very large billfish would still provide an incentive for

fishing activity. Implementation of this alternative would require an

accurate monitoring system for NMFS to provide sufficient notice of

size limit adjustments to tournaments.

The draft RIR/IRFA for Amendment 1 to the Billfish FMP provides

further discussion of the economic impacts of all the alternatives

considered.

This proposed rule contains new and revised collection-of-

information requirements, subject to review and approval by the Office

of Management and Budget (OMB) under the Paperwork Reduction Act (PRA),

and restates several current requirements. The new and revised

collections have been submitted to OMB for approval. In particular, six

new reporting requirements would include position reports from a

vessel-monitoring system for all pelagic longline vessels; gear marking

and vessel identification requirements for longline and shark net gear,

and for handgear and harpoon floats; permits for all HMS Charter/

Headboat vessels; observer requirements for HMS Charter/Headboat

vessels if selected; logbooks for all Atlantic tuna vessels and HMS

Charter/Headboat vessels; and revised reporting procedures for EFPs.

The following requirements have been approved by OMB or have been

submitted to OMB for approval:

1. Requirement for HMS Charter/Headboat Permits in Sec. 635.4,

estimated at 30 minutes per initial permit application and 6 minutes

per renewal, has been submitted for OMB clearance in association with

this proposed rule. However, no additional burden is anticipated as

nearly all HMS charter/headboats are permitted under currently approved

permitting collections (0648-0202; 0648-0205; 0648-0327), any of which

will serve to meet this requirement.

2. Atlantic tunas vessel permits in Sec. 635.4 (approved under OMB

control number 0648-0327), estimated at 30 minutes per initial permit

application and 6 minutes per renewal; and Atlantic tunas dealer

permits in Sec. 635.4 (approved under OMB control number 0648-0202),

estimated at 5 minutes per permit action.

3. Shark and swordfish vessel permits in Sec. 635.4 (approved under

OMB control number 0648-0205), estimated at 20 minutes per permit

action; and shark and swordfish dealer permits in Sec. 635.4 (approved

under OMB control number 0648-0205), estimated at 5 minutes per permit

action. Importer permitting requirements for swordfish in Sec. 635.4,

estimated at 5 minutes per application, for which a proposed rule

published on October 13, 1998 (63 FR 54661), have since been approved

by OMB under 0648-0205.

4. Dealer reporting and recordkeeping requirements for Atlantic

bluefin tuna in Sec. 635.5 (approved under OMB control number 0648-

0239), estimated at 3 minutes for daily reports, 14 minutes per bi-

weekly report of fish purchases, and 1 minute to affix tags and label

containers.

5. Dealer reporting and recordkeeping requirements for swordfish,

sharks, and Atlantic tunas in Sec. 635.5 (approved under OMB control

numbers 0648-0013 and/or 0648-0239) estimated at 15 minutes per bi-

weekly report of fish purchases and 3 minutes per negative report.

Importer reporting requirements for swordfish in Sec. 635.5, estimated

at 15 minutes per bi-weekly report, for which a proposed rule published

on October 13, 1998 (63 FR 54661), have since been approved by OMB

under 0648-0013.

6. Vessel reporting and recordkeeping requirements for swordfish

and sharks in Sec. 635.5 (currently approved under OMB control number

0648-0016) estimated at 10 minutes per logbook entry, including the

attachment of tally sheets, and 2 minutes for ``no-fishing'' reports.

NMFS has submitted a request to OMB for vessel reporting requirements

for Atlantic tunas and HMS charter boats in Sec. 630.5 estimated at 12

minutes per logbook entry and 2 minutes for a negative catch report.

NMFS intends to randomly select 10 percent of the tuna vessels and all

HMS charter boats on an annual basis. While NMFS intends to consolidate

HMS logbooks under a new information collection, there will be an

initial trial period for tuna vessels and HMS charter/headboats with

the pelagic logbook forms currently approved under 0648-0016. After

evaluation of the program, NMFS will request OMB approval to issue

logbooks tailored to the specific reporting requirements of individual

fishery segments

7. Fishing tournament registration and selective reporting in

Sec. 635.5 (approved under OMB control number 0648-0323) estimated at

10 minutes per report.

8. Swordfish and shark limited access permit documentation

requirements in Sec. 635.16 (approved under OMB control number 0648-

0325) estimated at 1.5 hours per response.

9. Vessel identification requirements for permitted HMS vessels in

Sec. 635.6 estimated at 45 minutes per vessel, have been submitted to

OMB for approval.

10. HMS gear marking requirements in Sec. 635.6, estimated at 15

minutes per action and pertaining to longline gear (terminal floats and

hi-flyers), shark nets (terminal floats) and harpoon and handgear

floats, have been submitted to OMB for approval.

11. Notification for at-sea observer requirements for Atlantic

tuna, swordfish, and shark vessels in Sec. 635.7, estimated at 2

minutes per response, has

[[Page 3170]]

been consolidated and submitted for OMB approval.

12. Position reporting and communication from a vessel monitoring

system in Sec. Sec. 635.9 and 635.69, estimated at 0.033 seconds per

position report or 5 minutes per vessel per year, 4 hours for

installation, and 2 hours for annual maintenance, has been submitted to

OMB for clearance.

13. BFT purse seine inspection requests in Sec. 635.21 (approved

under OMB control number 0648-0202) estimated at 5 minutes per request.

14. Angler reporting of trophy BFT in Sec. 635.23 (approved under

OMB control number 0648-0239) estimated at 3 minutes per report, and

Angler reporting of school and medium tuna in Sec. 635.5 (approved

under OMB control number 0648-0328) estimated at 5 minutes per

response.

15. HMS catch and release program requirements in Sec. 635.26

(approved under OMB control number 0648-0247) estimated at 2 minutes

per tagging card.

16. Documentation requirements for sale of billfish in Sec. 635.31

(approved under OMB control number 0648-0216) estimated at 20 minutes

for dealers purchasing from vessels and 2 minutes for subsequent

purchasers.

17. Swordfish Certificate of Eligibility in Sec. 635.46, estimated

at 60 minutes per document, for which a proposed rule published on

October 13, 1998 (63 FR 54661), has since been approved under OMB

control number 0648-0363. Bluefin Tuna Statistical Document in

Sec. 635.42 (approved under OMB control number 0648-0040) estimated at

20 minutes per document.

18. Revised application and reporting requirements under EFPs in

Sec. 635.32, estimated at 30 minutes per application, 5 minutes per

fish collection report, and 30 minutes per annual summary report, have

been submitted for OMB clearance.

19. Archival tag reporting requirements in Sec. 635.33, estimated

at 1.5 hours for implantation reports and 30 minutes per fish catch

report, have been approved by OMB under control number 0648-0338.

20. Bluefin tuna statistical documents in Sec. 635.42, estimated at

20 minutes per fish import report, and government validation of BSDs in

Sec. 635.44, estimated at 2 hours per occurrence, have been approved by

OMB under control number 0648-0040.

Written requests for purse seine allocations for Atlantic tunas as

required under Sec. 635.27 are not currently approved by OMB. Requests

for purse seine allocations are not subject to the PRA because, under

current regulations, a maximum of five vessels could be subject to

reporting under this requirement. Since it is impossible for 10 or more

respondents to be involved, the information collection is exempt from

the PRA clearance requirement.

Certificate of eligibility requirements for imports of fish subject

to trade restrictions under Sec. 635.40 are not currently approved by

OMB. These regulations were required under ATCA and were originally

issued prior to the enactment of the PRA. NMFS would consult with OMB

prior to implementing any trade restrictions under this section. While

ATCA and the implementing regulations at Sec. 635.40 authorize

unilateral trade action by the United States, it is more likely that

multilateral action would be taken upon a recommendation of ICCAT. In

such case, notice and comment rulemaking procedures under ATCA would

apply and OMB clearance for information collections would be requested

prior to issuance of a proposed rule.

Public comment is sought regarding whether these proposed new or

revised collections-of-information are necessary for the proper

performance of the functions of the agency, including whether the

information has practical utility; the accuracy of the burden

estimates; ways to enhance the quality, utility, and clarity of the

information to be collected; and ways to minimize the burden of the

collection of information, including the use of automated collection

techniques or other forms of information technology. Send comments on

these or any other aspects of the collection of information to NMFS,

Highly Migratory Species Management Division and OMB (see ADDRESSES).

Notwithstanding any other provision of law, no person is required

to respond to, nor shall a person be subject to a penalty for failure

to comply with, a collection of information subject to the requirements

of the PRA unless that collection of information displays a currently

valid OMB Control Number.

NMFS initiated formal consultation for all HMS fisheries on

September 25, 1996, under section 7 of the ESA. NMFS requested an

additional formal consultation on the HMS FMP and Billfish Amendment on

May 12, 1998. The consultation request concerned the possible effects

of management measures in the Amendment 1 to the Billfish FMP and the

HMS FMP, including implementation of AOCTRP measures for the pelagic

longline fishery. In a BO issued on May 29, 1997, NMFS concluded that

operation of the harpoon fishery is not likely to adversely affect the

continued existence of any endangered or threatened species under NMFS

jurisdiction and that operation of the longline fishery may adversely

affect, but may not jeopardize, the continued existence of any

endangered or threatened species under NMFS jurisdiction. Conversely,

it was concluded that driftnet fishing for swordfish in the Northeast

and Mid-Atlantic and for sharks in the Southeast jeopardized the

continued existence of the northern right whale. NMFS proposed on

October 20, 1998 (63 FR 55998), to prohibit the use of driftnets in the

Atlantic swordfish fishery. Another rulemaking implemented a take

reduction plan for Atlantic large whales in the southeastern United

States under the MMPA (62 FR 39157, July 22, 1997). This proposed rule,

if implemented, would further reduce the likelihood of interactions

between HMS fishing gears and northern right whales and endangered sea

turtles through gear modifications and educational workshops for

pelagic longline fishermen that were recommended by the AOCTRT.

This proposed rule has been determined to be significant for

purposes of E.O. 12866.

List of Subjects

50 CFR Part 285

Fisheries, Fishing, Penalties, Reporting and recordkeeping

requirements, Treaties.

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

Fisheries, Fishing, Reporting and recordkeeping requirements,

Treaties.

Dated: January 12, 1999.

Rolland A. Schmitten,

Assistant Administrator, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR chapters II and VI

are proposed to be amended as follows:

50 CFR Chapter II

PART 285--ATLANTIC TUNAS FISHERIES [REMOVED]

1. Under the authority of 16 U.S.C. 971 et seq., part 285 is

removed.

50 CFR Chapter VI

PART 630--ATLANTIC SWORDFISH FISHERY [REMOVED]

PART 644--ATLANTIC BILLFISHES [REMOVED]

PART 678--ATLANTIC SHARKS [REMOVED]

2. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801

et seq., parts 630, 644, and 678 are removed.

[[Page 3171]]

PART 600-MAGNUSON-STEVENS ACT PROVISIONS

3. The authority citation for part 600 continues to read as

follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

4. In Sec. 600.10, the definitions for ``Albacore'', ``Angling'',

``Atlantic tunas'', ``Atlantic Tunas Convention Act'', ``Bigeye tuna'',

``Billfish'', ``Bluefin tuna'', ``Blue marlin'', ``Carcass'', ``Catch

limit'', ``Charter vessel'', ``Fillet'', ``Fish weir'', ``Headboat'',

``Land'', ``Longbill spearfish'', ``Pelagic longline'', ``Person'',

``Postmark'', ``Pound net'', ``Purchase'', ``Round'', ``Sailfish'',

``Sale or sell'', ``Shark net'', ``Skipjack tuna'', ``Strikenet for

sharks'', ``Swordfish'', ``Trip'', ``White marlin'', and ``Yellowfin

tuna'' are added in alphabetical order to read as follows:

Sec. 600.10 Definitions.

* * * * *

Albacore means the species Thunnus alalunga, or a part thereof.

* * * * *

Angling means fishing for or catching of, or the attempted fishing

for or catching of, fish by any person (angler) with a hook attached to

a line that is hand-held or by rod and reel made for this purpose.

* * * * *

Atlantic tunas means bluefin tuna, albacore, bigeye tuna, skipjack

tuna and yellowfin tuna found in the Atlantic Ocean.

Atlantic Tunas Convention Act means the Atlantic Tunas Convention

Act of 1975, 16 U.S.C. 971-971h.

* * * * *

Bigeye tuna means the species Thunnus obesus, or a part thereof.

Billfish means blue marlin, longbill spearfish, sailfish, or white

marlin.

Bluefin tuna means the species Thunnus thynnus, or a part thereof.

Blue marlin means the species Makaira nigricans, or a part thereof.

Carcass means a fish that has been gilled and/or gutted and the

head and some or all fins have been removed, but that is otherwise in

whole condition.

Catch limit means the total allowable harvest or take from a single

fishing trip or day, as defined in this section.

* * * * *

Charter vessel means a vessel less than 100 gross tons (90.8 mt)

that meets the requirements of the U.S. Coast Guard to carry six or

fewer passengers for hire.

* * * * *

Fillet means to remove slices of fish flesh from the carcass by

cuts made parallel to the backbone.

* * * * *

Fish weir means a large catching arrangement with a collecting

chamber that is made of non-textile material (wood, wicker) instead of

netting as in a pound net.

* * * * *

Headboat means a vessel that holds a valid Certificate of

Inspection issued by the U.S. Coast Guard to carry passengers for hire.

* * * * *

Land means to begin offloading fish, to offload fish, or to arrive

in port or at a dock, berth, beach, seawall, or ramp.

Longbill spearfish means the species Tetrapturus pfluegeri, or a

part thereof.

* * * * *

Pelagic longline means a suspended monofilament longline with

greater than 3 hooks or leaders that is supported along its length by

floats and is marked on the surface by high-flyers. It is a rebuttable

presumption that a longline marked with floats and high-flyers in water

depths greater than 50 fathoms (91 m) is a pelagic longline.

Person means any individual, partnership, corporation, or

association subject to the jurisdiction of the United States.

* * * * *

Postmark means independently verifiable evidence of the date of

mailing, such as a U.S. Postal Service postmark, United Parcel Service,

or other private carrier postmark, certified mail receipt, overnight

mail receipt, or a receipt issued upon hand delivery to a

representative of NMFS authorized to collect fishery statistics.

Pound net means a set net. The trap portion is composed of netting

with a vertical side, a top, a cover, and non-return valves fitted

inside. This may be moored with anchors and casks and held open with

stretcher poles or floats.

* * * * *

Purchase means the act or activity of buying, trading, or

bartering, or attempting to buy, trade, or barter.

* * * * *

Round means a whole fish--one that has not been gilled, gutted,

beheaded, or definned.

* * * * *

Sailfish means the species Istiophorus platypterus, or a part

thereof.

Sale or sell means the act or activity of transferring property for

money or credit, trading, or bartering, or attempting to so transfer,

trade, or barter.

* * * * *

Shark net, sometimes called a shark gillnet or shark driftnet,

means a flat net with webbing of 5 inches or greater stretched mesh and

a twine size of 0.52 mm diameter or greater. The shark net is

unattached to the ocean bottom, whether or not it is attached to a

vessel, and it is designed to be suspended vertically in the water to

entangle the head or other body parts of a shark that attempts to pass

through the meshes.

Skipjack tuna means the species Katsuwonus pelamis, or a part

thereof.

* * * * *

Strikenet for sharks means to fish with strikenet gear and to land

or have on board an amount of shark that exceeds the recreational catch

limit.

* * * * *

Swordfish means the species Xiphias gladius, or a part thereof.

* * * * *

Trip means the time period that begins when a fishing vessel

departs from a dock, berth, beach, seawall, ramp, or port to carry out

fishing operations and that terminates with a return to a dock, berth,

beach, seawall, ramp, or port.

* * * * *

White marlin means the species Tetrapturus albidus, or a part

thereof.

Yellowfin tuna means the species Thunnus albacares, or a part

thereof.

5. Section 600.15 is amended by redesignating paragraphs (a)(2)

through (a)(6) as paragraphs (a)(5) through (a)(9), by redesignating

paragraphs (a)(7) through (a)(11) as paragraphs (a)(11) through

(a)(15), and by adding paragraphs (a)(2) through (a)(4) and paragraph

(a)(10) to read as follows:

Sec. 600.15 Other acronyms.

(a) * * *

(2) ATCA-Atlantic Tunas Convention Act

(3) BFT (Atlantic bluefin tuna) means the subspecies of bluefin

tuna, Thunnus thynnus thynnus, or a part thereof, that is found in the

Atlantic Ocean.

(4) BSD means the ICCAT bluefin tuna statistical document.

* * * * *

(10) ICCAT means the International Commission for the Conservation

of Atlantic Tunas.

* * * * *

6. Part 635 is added to read as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

Subpart A--General

Sec.

635.1 Purpose and scope.

635.2 Definitions.

635.3 Relation to other laws.

[[Page 3172]]

635.4 Permits and fees.

635.5 Recordkeeping and reporting.

635.6 Vessel and gear identification.

635.7 At-sea observer coverage.

635.8 Educational workshops.

635.9 Vessel monitoring.

Subpart B--Limited Access

635.16 Limited access permits.

Subpart C--Management Measures

635.19 BFT size classes.

635.20 Size limits.

635.21 Gear operation and deployment restrictions.

635.22 Recreational retention limits.

635.23 Retention limits for BFT.

635.24 Commercial retention limits for sharks and swordfish.

635.26 Catch and release.

635.27 Quotas.

635.28 Closures.

635.29 Transfer at sea.

635.30 Possession at sea and landing.

635.31 Restrictions on sale and purchase.

635.32 Specifically authorized activities.

635.33 Archival tags.

635.34 Adjustment of management measures.

Subpart D--Restrictions on Imports

635.40 Restrictions to enhance conservation.

635.41 Species subject to documentation requirements.

635.42 Documentation requirements.

635.43 Contents of documentation.

635.44 Validation requirements.

635.45 Import restrictions for Belize, Honduras, and Panama.

635.46 Import restrictions on swordfish.

Subpart E--International Port Inspection

635.50 Basis and purpose.

635.51 Authorized officer.

635.52 Vessels subject to inspection.

635.53 Reports.

635.54 Ports of entry

Subpart F--Enforcement

635.69 Vessel monitoring systems.

635.70 Penalties.

635.71 Prohibitions.

Appendix A to Part 635--Species Tables

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

Subpart A--General

Sec. 635.1 Purpose and scope.

(a) Atlantic tunas, billfish, and swordfish. The regulations in

this part govern the conservation and management of Atlantic tunas,

billfish, and Atlantic swordfish under the authority of the Magnuson-

Stevens Act and ATCA. They implement the Fishery Management Plan for

Atlantic Tunas, Swordfish, and Sharks and in the Fishery Management

Plan for Atlantic Billfishes. The Atlantic tunas regulations govern

conservation and management of Atlantic tunas in the management area

and apply to a person or vessel subject to the jurisdiction of the

United States. The Atlantic billfish regulations govern conservation

and management in the management area and apply to a person or vessel

subject to the jurisdiction of the United States. The swordfish

regulations govern conservation and management of North and South

Atlantic swordfish in the management unit. North Atlantic swordfish are

managed under the authority of both ATCA and the Magnuson-Stevens Act.

South Atlantic swordfish are managed under the sole authority of ATCA.

The swordfish regulations apply to a person or vessel subject to the

jurisdiction of the United States.

(b) Shark. The regulations in this part govern sharks under the

authority of the Magnuson-Stevens Act and implement management measures

in the Fishery Management Plan for Atlantic HMS. The shark regulations

in this part govern conservation and management of sharks in the

management area and apply to a person or vessel subject to the

jurisdiction of the United States.

Sec. 635.2 Definitions.

In addition to the definitions in the Magnuson-Stevens Act, ATCA,

and Sec. 600.10 of this chapter, the terms used in this part have the

following meanings:

Archival tag means a device that is implanted or affixed to a fish

to electronically record scientific information about the migratory

behavior of that fish.

Atlantic HMS means Atlantic tunas, billfish, oceanic sharks, and

swordfish.

Atlantic Ocean, as used in this part, includes the North and South

Atlantic Oceans, the Gulf of Mexico, and the Caribbean Sea.

Bottom longline means a monofilament longline with greater than 3

hooks or leaders that is maintained on the ocean floor along its length

by weights and is marked on the surface by marker buoys and/or high

flyers.

BSD tag means the numbered tag affixed to a BFT issued by any

country in conjunction with a catch statistics information program and

recorded on a BSD.

Cape Cod Bay closed area means the area bounded by lines connecting

the following coordinates: 42 deg.04.8' N. lat., 70 deg.10' W. long.;

42 deg.12' N' lat., 70 deg.15' W. long; 42 deg.12' N. lat., 70 deg. 30'

W. long.; 41 deg.46.8' N. lat., 70 deg.30' W. long.; and on the south

and east by the interior shore line of Cape Cod, MA.

Certificate of Eligibility (COE) means the certificate that

accompanies a shipment of imported swordfish indicating that the

swordfish or swordfish parts are not from the Atlantic Ocean or if they

are, are derived from a swordfish weighing more than 33 lb (15 kg) dw.

CFL (curved fork length) means the length of a fish measured from

the tip of the upper jaw to the fork of the tail along the contour of

the body in a line that runs along the top of the pectoral fin and the

top of the caudal keel.

CK means the length of a fish measured along the body contour,

i.e., a curved measurement, from the cleithrum to the anterior portion

of the caudal keel. The cleithrum is the semicircular bony structure at

the posterior edge of the gill opening. The measurement must be made

from the point on the cleithrum that provides the shortest possible

measurement along the body contour.

Convention means the International Convention for the Conservation

of Atlantic Tunas, signed at Rio de Janeiro, Brazil, on May 14, 1966,

20 U.S.T. 2887, TIAS 6767, including any amendments or protocols

thereto, which are binding upon the United States.

Conventional tag means a numbered, flexible ribbon that is

implanted or affixed to a fish that is released back into the ocean.

The tag allows the identification of that fish in the event it is

recaptured.

Dealer tag means the numbered, flexible, self-locking ribbon issued

by NMFS for the identification of BFT sold to a permitted dealer as

required under Sec. 635.5 (b)(2)(ii).

Dehooking device means a device intended to remove a hook imbedded

in a fish in order to release the fish with minimum damage.

Downrigger means a piece of equipment attached to a vessel and with

a weight on a cable that is in turn attached to hook-and-line gear to

maintain lures or bait at depth while trolling, and that has a release

system to retrieve the weight by rod and reel or by manual, electric,

or hydraulic winch after a fish strike on the hook-and-line gear.

Dress means to remove head, viscera, and fins, but does not include

removal of the backbone, halving, quartering, or otherwise further

reducing the carcass.

Dressed weight (dw) means the weight of a fish after it has been

dressed.

EFP means an exempted fishing permit issued pursuant to

Sec. 600.745 of this chapter and to Sec. 635.32.

Eviscerated means a fish that has only the alimentary organs

removed.

Export means shipment of fish or fish products to a destination

outside the customs territory of the United States for which a

Shipper's Export Declaration (Customs Form 7525) is required. Atlantic

HMS destined from one foreign country to another, which transits the

United States and for which a Shipper's Export Declaration is not

[[Page 3173]]

required to be filed, will not be considered an export under this

definition.

Exporter means the principal party responsible for effecting export

from the United States as listed on the Shipper's Export Declaration

(Customs Form 7525) or any authorized electronic medium available from

U.S. Customs.

First transaction in the United States means the time and place at

which the swordfish, is filleted, cut into steaks, or processed in any

way that physically alters it after being landed in or imported into

the United States.

Fishing record means all records of navigation and operations, as

well as all records of catching, harvesting, transporting, landing,

purchase, or sale.

Fishing vessel means any vessel engaged in fishing, processing, or

transporting fish loaded on the high seas, or any vessel outfitted for

such activities.

Fishing year means--

(1) For Atlantic tunas, billfish, and swordfish--June 1 through May

31 of the following year; and

(2) For shark--January 1 through December 31.

FL (fork length) means the straight-line measurement of a fish from

the tip of the snout to the fork of the tail. The measurement is not

made along the curve of the body.

Florida Straits means the area off the east coast of Florida

between 26 deg. N. lat. and 28 deg. N. lat. and 78 deg. W. long. and

81 deg. W. long.

Giant BFT means an Atlantic BFT measuring 81 inches (206 cm) CFL or

greater.

Great South Channel closed area means the area bounded by lines

connecting the following coordinates: 41 deg.40' N. lat., 69 deg.45' W.

long.; 41 deg.00' N. lat., 69 deg.05' W. long.; 41 deg.38' N. lat.,

68 deg.13' W. long.; and 42 deg.10' N. lat., 68 deg.31' W. long.

Highly migratory species (HMS) means bluefin, bigeye, yellowfin,

albacore, and skipjack tunas; swordfish; oceanic sharks (listed in

Appendix A to this part); white marlin; blue marlin; sailfish; and

longbill spearfish.

ILAP means an initial limited access permit issued pursuant to

Sec. 635.4.

Import means the release of HMS from a nation's Customs' custody

and entry into the territory of that nation. HMS are imported into the

United States upon release from U.S. Customs' custody pursuant to

filing an entry summary document (Customs Form 7501) or any authorized

electronic medium. HMS destined from one foreign country to another,

which transit the United States and for which an entry summary is not

required to be filed, are not considered an import under this

definition.

Importer, for the purpose of HMS imported into the United States,

means the importer of record as declared on U.S. Customs Form 7501 or

any authorized electronic medium.

Intermediate country means a country that exports to the United

States HMS previously imported by that nation. Shipments of HMS through

a country on a through bill of lading or in another manner that does

not enter the shipments into that country as an importation do not make

that country an intermediate country under this definition.

LAP means a limited access permit issued pursuant to Sec. 635.4.

Large coastal shark means one of the species, or a part thereof,

listed in paragraph (a) of Table 1 in Appendix A to this part.

Large medium BFT means a BFT measuring 73 to < 81 inches (185 to <

206 cm) CFL.

Large school BFT means a BFT measuring 47 to < 59 inches (119 to <

150 cm) CFL.

LJFL (lower jaw-fork length) means the straight-line measurement of

a fish from the tip of the lower jaw to the fork of the caudal fin. The

measurement is not made along the curve of the body.

Management area (1) For Atlantic tunas, blue marlin, longbill

spearfish, and white marlin, means the Atlantic Ocean,

(2) For sailfish, means the Atlantic Ocean north of 5 deg. N. lat.

and west of 30 deg. N. long.,

(3) For North Atlantic swordfish, means the Atlantic Ocean north of

5 deg. N. lat.,

(4) For South Atlantic swordfish, means the Atlantic Ocean south of

5 deg. N. lat., and

(5) For sharks, means the western north Atlantic ocean, including

the Gulf of Mexico and the Caribbean Sea.

Mid-Atlantic Bight means the area off the mid-Atlantic states

between 35 deg. N. lat. and 43 deg. N. lat. to 71 deg. W. long.

Non-ridgeback shark means one of the species, or a part thereof,

listed in paragraph (a)(2) of Table 1 in Appendix A to this part.

North Atlantic swordfish or north Atlantic Swordfish stock means

those swordfish in the Atlantic Ocean north of 5 deg. N. lat.

Office Director means the Director of the Office of Sustainable

Fisheries, NMFS.

Operator, with respect to any vessel, means the master or other

individual on board and in charge of that vessel.

Pelagic shark means one of the species, or a part thereof, listed

in paragraph (c) of Table 1 in Appendix A to this part.

PFCFL (pectoral fin curved fork length) means the length of a

beheaded fish from the dorsal insertion of the pectoral fin to the fork

of the tail measured along the contour of the body in a line that runs

along the top of the pectoral fin and the top of the caudal keel.

Prohibited shark means one of the species, or a part thereof,

listed in paragraph (d) of Table 1 in Appendix A to this part.

Regional Administrator (RA) means the director of the NMFS Regional

Office in either the Northeast region (Gloucester, MA) or the Southeast

region (St. Petersburg, FL), whichever is applicable.

Restricted-fishing day (RFD) means a day, beginning at 0000 hours

and ending at 2400 hours local time, during which a person aboard a

vessel for whom a General Category Permit for Atlantic Tunas has been

issued may not fish for, possess, or retain a BFT.

Ridgeback shark means one of the species, or a part thereof, listed

in paragraph (a)(1) of Table 1 in Appendix A to this part.

School BFT means a BFT measuring 27 to < 47 inches (69 to < 119 cm)

CFL.

Shark means one of the species, or a part thereof, listed in Tables

1 and 2 in Appendix A to this part.

Small coastal shark means one of the species, or a part thereof,

listed in paragraph (b) of Table 1 in Appendix A to this part.

Small medium BFT means a BFT measuring 59 to < 73 inches (150 to <

185 cm) CFL.

South Atlantic swordfish or south Atlantic swordfish stock means

those swordfish in the Atlantic Ocean south of 5 deg. N. lat.

Southeastern United States closed area means the coastal waters

between 28 deg.00' N. lat. and 30 deg.15' N. lat. from the coast to 5

nm (9 km) offshore; and coastal waters between 30 deg.15' N. lat. and

31 deg.15' N. lat. from the coast to 15 nm (28 km) offshore.

Tournament means any fishing competition involving Atlantic HMS in

which participants must register or otherwise enter or in which a prize

or award is offered for catching such fish.

Trip limit means the total allowable take from a single trip as

defined in this section.

Weighout slip means a document provided by a person who weighs fish

or parts thereof that are landed from a fishing vessel to the owner or

operator of the vessel. A weighout slip for sharks prior to or as part

of a commercial transaction involving shark carcasses or

[[Page 3174]]

fins must record the weights of carcasses and any detached fins. A

document, such as a ``tally sheet,'' ``trip ticket,'' or ``sales

receipt,'' that contains such information is considered a weighout

slip.

Young school BFT means an Atlantic BFT measuring less than 27

inches (69 cm) CFL.

Sec. 635.3 Relation to other laws.

(a) The relation of this part to other laws is set forth in

Sec. 600.705 of this chapter and in paragraphs (b) and (c) of this

section.

(b) In accordance with regulations issued under the Marine Mammal

Protection Act of 1972, as amended, it is unlawful for a commercial

fishing vessel, a vessel owner, or a master or operator of a vessel to

engage in fisheries for HMS in the Atlantic Ocean, unless the vessel

owner or authorized representative has complied with specified

requirements including, but not limited to, registration, exemption

certificates, decals, and reports, as contained in part 229 of this

title.

(c) General provisions on facilitation of enforcement, penalties,

and enforcement policy applicable to all domestic fisheries are set

forth in Secs. 600.730, 600.735, and 600.740 of this chapter,

respectively.

(d) An activity that is otherwise prohibited by this part may be

conducted if authorized as scientific research activity, exempted

fishing, or exempted educational activity, as specified in Sec. 600.745

of this chapter or in Sec. 635.32.

Sec. 635.4 Permits and fees.

(a) Permits. (1) Each permit issued by NMFS authorizes certain

activities, and persons may not conduct these activities from a vessel

without the appropriate permit, unless otherwise authorized by NMFS.

(2) The owner or operator of a vessel of the United States must

have the appropriate valid permit on board the vessel to fish for,

take, retain, or possess any Atlantic HMS and must make such permit

available for inspection upon request by NMFS. The owner or operator of

the vessel is responsible for satisfying all of the requirements

associated with obtaining, maintaining, and making available for

inspection, all valid vessel permits.

(3) Limited access vessel permits issued pursuant to this part do

not represent either an absolute right to the resource or any interest

that is subject to the takings provision of the Fifth Amendment of the

U.S. Constitution. Rather, such permits represent only a harvesting

privilege that may be revoked, suspended, or amended subject to the

requirements of the Magnuson-Stevens Act or other applicable law.

(4) A vessel permit issued upon the qualification of an operator is

valid only when that person is the operator of the vessel.

(5) A dealer permit issued under this section, or a copy thereof,

must be available at each of the dealer's places of business. A dealer

must present the permit or a copy for inspection upon the request of a

NMFS-authorized officer.

(6) Upon transfer of Atlantic HMS, the owner or operator of the

harvesting vessel must present for inspection the vessel's Atlantic

tunas, shark or swordfish permit to the receiving dealer. The permit

must be presented prior to completing the landing report specified at

Sec. 635.5 (a)(1), (a)(2) and (b)(2)(i).

(7) Sanctions and denials. A permit issued under this section may

be revoked, suspended, or modified, and a permit application may be

denied, in accordance with the procedures governing enforcement-related

permit sanctions and denials found at subpart D of 15 CFR part 904.

(8) Alteration. A vessel or dealer permit that is altered, erased,

or mutilated is invalid.

(9) Replacement. NMFS will issue a replacement permit. An

application for a replacement permit will not be considered a new

application. An appropriate fee, consistent with paragraph (h) of this

section, may be charged for issuance of the replacement permit.

(b) Fees. NMFS may charge a fee for each application for a permit

or each transfer or replacement of a permit. The amount of the fee is

calculated in accordance with the procedures of the NOAA Finance

Handbook, available from NMFS, for determining administrative costs of

each special product or service. The fee may not exceed such costs and

is specified in the instructions provided with each application form.

Each applicant must include the appropriate fee with each application

or request for transfer or replacement. A permit will not be issued to

anyone who fails to pay the fee.

(c) HMS Charter/Headboat Permits. (1) Vessels that are used as

charter boats or headboats to fish for, take, retain, or possess any

Atlantic HMS must be permitted to do so. Such permit requirement may be

met by the HMS Charter/Headboat Permit issued under this Sec. 635.4 or

by a Charter/Headboat Permit issued under Sec. Sec. 622.4 or 648.4.

(2) The operator of a charter vessel or headboat that has been

issued an HMS Charter/Headboat Permit must also have a valid merchant

marine license or uninspected passenger vessel license while fishing

for or possessing Atlantic HMS.

(d) Atlantic Tunas Vessel Permits. (1) The owner or operator of

each vessel used to fish for or take Atlantic tunas or on which

Atlantic tunas are retained or possessed must obtain, in addition to

any other required permits, one and only one of six category permits:

Angling, General, Harpoon, Longline, Purse Seine, or Trap.

(2) Persons on board a vessel with a valid Atlantic Tunas Vessel

Permit may fish for, take, retain, or possess Atlantic tunas, but only

in compliance with the quotas, catch limits, and size classes

applicable to the permit category of the vessel from which he or she is

fishing. Persons may sell Atlantic tunas only if the harvesting

vessel's valid permit is in the General, Harpoon, Charter/Headboat,

Longline, Purse Seine, or Trap Category of the Atlantic Tunas Permit.

Persons may not sell Atlantic tunas caught on board a vessel with a

permit in the Angling Category.

(3) Except for purse seine vessels for which that permit has been

issued under this section, a vessel owner may change the category of

the vessel's permit no more than once each year and only from January 1

through May 15. From May 16 through December 31, the vessel's permit

category may not be changed, regardless of a change in the vessel's

ownership.

(4) An Atlantic Tunas Longline Category Permit can be obtained for

a vessel only if the owner or operator of the vessel has both a shark

directed or incidental catch limited access permit and a swordfish

directed or incidental catch limited access permit.

(5) An owner of a vessel with an Atlantic Tunas Permit in the Purse

Seine Category may transfer the permit to another vessel that he or she

owns or to a vessel owned by someone else. In either case, a written

request for transfer must be submitted to NMFS, to a designated

address, accompanied by an application for the new vessel and the

existing permit. NMFS will issue no more than 5 Atlantic Tunas Purse

Seine Category Permits.

(e) Commercial Shark Vessel Limited Access Permits. (1) The owner

or operator of each vessel used to fish for or take Atlantic sharks or

on which Atlantic sharks are retained or possessed with an intention to

sell or that are sold must obtain, in addition to any other required

permits, only one of two types of commercial limited access shark

permits: shark directed limited access permit or shark incidental

limited access permit. See Sec. 635.16

[[Page 3175]]

regarding the initial issuance of these two types of permits. It is a

rebuttable presumption that the owner or operator of a vessel on which

sharks are possessed in excess of the recreational catch limits are

intended to be sold.

(2) A commercial limited access permit for shark is not required if

the vessel is recreational fishing under recreational catch limits, is

operating under a shark EFP, or is fishing exclusively within state

waters.

(3) As of June 1, 1999, the only valid Federal commercial vessel

permits for shark are those that have been issued under the limited

access criteria specified in Sec. 635.16.

(4) An owner or operator issued a permit pursuant to this part must

agree, as a condition of such permit, that the vessel's shark fishing,

catch, and gear are subject to the requirements of this part during the

period of validity of the permit, without regard to whether such

fishing occurs in the EEZ, landward of the EEZ, or outside the EEZ, and

without regard to where such shark or gear are possessed, taken, or

landed. However, when a vessel fishes in the waters of a state that has

more restrictive regulations on shark fishing, those more restrictive

regulations may be applied by that state in its waters.

(f) Commercial Swordfish Vessel Limited Access Permits. (1) The

owner or operator of each vessel used to fish for or take Atlantic

swordfish or on which Atlantic swordfish are retained or possessed with

an intention to sell or that are sold must obtain, in addition to any

other required permits, only one of three types of commercial limited

access swordfish permits: swordfish directed limited access permit,

swordfish incidental limited access permit, or swordfish handgear

limited access permit. See Sec. 635.16 regarding the initial issuance

of these three types of permits.

(2) A commercial Federal permit for swordfish is not required if

the vessel is recreational fishing.

(3) As of June 1, 1999, the only valid commercial Federal vessel

permits for swordfish are those that have been issued under the limited

access criteria specified in Sec. 635.16.

(4) A limited access permit for swordfish is valid only when the

vessel has on board a valid commercial limited access permit for shark

and an Atlantic Tunas Longline Category Permit.

(g) Dealer permits--(1) Atlantic tunas. A valid dealer permit for

Atlantic tunas is required to receive, purchase, trade for, or barter

for Atlantic tunas from a fishing vessel of the United States an

Atlantic tuna or import or export bluefin tuna, regardless of origin.

(2) Shark. A valid dealer permit for shark is required to receive,

purchase, trade for, or barter for an Atlantic shark from a fishing

vessel of the United States.

(3) Swordfish. A valid dealer permit for swordfish is required to

receive, purchase, trade for, or barter for an Atlantic swordfish from

a fishing vessel of the United States or import a swordfish, regardless

of origin.

(h) Applications for permits. Except for ILAPs, an owner or

operator or dealer must submit a complete application and required

supporting documents at least 30 days before the date on which the

permit is to be made effective. Application forms and instructions for

their completion are available from the Office Director (ILAP) or the

RA (Dealer Permit and LAP).

(1) Atlantic Tunas Vessel and HMS Charter/Headboat Permits. (i) An

owner must provide all information concerning his or her

identification, vessel, gear used, fishing areas, fisheries

participated in, the corporation or partnership owning the vessel, and

income requirements requested by NMFS and included on the application

form.

(ii) An owner must also submit a copy of the vessel's valid U.S.

Coast Guard certificate of documentation or, if not documented, a copy

of its valid state registration certificate and any other information

that may be necessary for the issuance or administration of the permit

as requested by NMFS. The owner must submit such information to a

designated NMFS address.

(iii) NMFS may require an applicant to provide documentation

supporting the application before a permit is issued or to substantiate

why such permit should not be revoked or otherwise sanctioned under

paragraph (a)(7) of this section.

(2) Limited access permits for swordfish and shark. See Sec. 635.16

for the issuance of ILAPs for shark and swordfish. See paragraph (l) of

this section for transfers of ILAPs and LAPs for shark and swordfish.

See paragraph (m) of this section for renewals of LAPs for shark and

swordfish.

(3) Dealer permits. (i) An applicant for a dealer permit must

provide all the information requested on the application form,

including the company name, principal place of business, mailing

address, and telephone number.

(ii) An applicant must also submit a copy of each state

wholesaler's license held by the dealer and, if a business is owned by

a corporation or partnership, the corporate or partnership documents

(copy of Certificate of Incorporation and Articles of Association or

Incorporation) along with the names, addresses, and telephone numbers

of all shareholders owning 5 percent or more of the corporation's

stock.

(iii) An applicant must also submit any other information that may

be necessary for the issuance or administration of the permit, as

requested by NMFS.

(i) Change in application information. A vessel owner or operator

or dealer must report any change in the information contained in an

application for a permit within 30 days after such change. The report

must be submitted in writing to the Office Director or the RA. In the

case of a vessel permit for Atlantic tunas or an HMS Charter/Headboat

Permit, the vessel owner must report the change to NMFS by phone or

internet. A new permit will be issued to incorporate the new

information, subject to limited access provisions specified in

paragraph (l)(2) of this section. For certain informational changes,

NMFS may require supporting documentation before a new permit will be

issued. If a change in the permit information is not reported within 30

days, the permit is void as of the 31st day after such change.

(j) Permit issuance. (1) Except for ILAPs, the Office Director or

the RA will issue a permit within 30 days of receipt of a complete and

qualifying application. An application is complete when all requested

forms, information, and documentation have been received.

(2) NMFS will notify the applicant of any deficiency in the

application. If the applicant fails to correct the deficiency within 30

days following the date of notification, the application will be

considered abandoned.

(3) For issuance of ILAPs for shark and swordfish, see Sec. 635.16.

(k) Duration. A permit issued under this section remains valid for

the period specified on it unless it is revoked, suspended, or modified

pursuant to subpart D of 15 CFR part 904, the vessel or dealership is

sold, or any other information previously submitted on the application

changes, as specified in paragraph (i) of this section.

(l) Transfer-- (1) General. A permit issued under this section is

not transferable or assignable to another vessel or owner or operator,

or dealer; it is valid only for the vessel and owner or operator, or

dealer to which it is issued. If a person acquires a vessel or

dealership and wants to conduct activities for which a permit is

required, that person must apply for a permit in accordance with the

provisions of paragraph (h) of this section; if the acquired vessel is

permitted in the

[[Page 3176]]

Atlantic tunas fishery in the Purse Seine Category, in accordance with

paragraph (d)(5) of this section; or, if the acquired vessel is

permitted in either the shark or swordfish fishery, in accordance with

paragraph (l)(2) of this section. If the acquired vessel or dealership

is currently permitted, an application must be accompanied by the

original permit and a copy of a signed bill of sale or equivalent

acquisition papers.

(2) Shark and swordfish commercial limited access permits. (i)

Subject to the restrictions on upgrading the harvesting capacity of

permitted vessels in paragraph (l)(2)(ii) of this section and the

limitations on ownership of permitted vessels in paragraph (l)(2)(iii)

of this section, an owner or operator may transfer a shark or swordfish

ILAP or LAP to another vessel that he or she owns or to a vessel owned

by another person. Directed handgear ILAPs and LAPs may be transferred

to another vessel but only for use with handgear and subject to

upgrading restrictions in paragraph (l)(2)(ii) of this section.

Incidental catch ILAPs and LAPs are not subject to the requirements

specified in paragraphs (l)(2)(ii) and (iii) of this section.

(ii) Limitations are imposed on upgrading the fishing capacity of

vessels that have commercial permits for shark or swordfish. These

limitations apply to a permitted vessel or to a transfer or replacement

vessel when the permit is transferred. Specifically, an owner or

operator may not upgrade the permitted vessel or transfer the permit to

another vessel if the upgrade or transfer results in an increase in

horsepower of more than 20 percent, or an increase in length overall,

gross registered tonnage, net tonnage, or hold capacity of more than 10

percent from the horsepower, length overall, gross registered tonnage,

net tonnage, or hold capacity of the vessel issued an ILAP. Only one

upgrade in each of these vessel characteristics is allowed. Upgrades to

a vessel=s length overall, gross registered tonnage, net tonnage, or

hold capacity must be made at the same time. However, an upgrade in

horsepower may be made separately from an upgrade in the other vessel

characteristics listed here.

(iii) No person may own or control more than 5 percent of the

vessels that have swordfish directed commercial permits or more than 5

percent of the vessels that have shark directed commercial permits.

(iv) For ILAP or LAP transfers to a replacement vessel, an owner of

a vessel issued an ILAP or LAP pursuant to this part must request the

RA to transfer the ILAP or LAP to another vessel owned by the same

owner, subject to requirements specified in paragraph (l)(2)(ii) of

this section, if applicable. The owner must return the current valid

ILAP or LAP to the RA with a complete application for a LAP, as

specified in paragraph (h) of this section, for the replacement vessel.

Copies of both vessels' documentation or state registration must

accompany a completed application.

(v) For ILAP or LAP transfers to a different person, the transferee

of an ILAP or LAP must request the RA to transfer the original ILAP or

LAP, subject to requirements specified in paragraphs (l)(2)(ii) and

(iii) of this section, if applicable. The following must accompany the

completed application: The original ILAP or LAP with signatures of both

parties on the back of the permit, the bill of sale of the ILAP or LAP,

and copies of both vessels' documentation or state registration.

(vi) For ILAP or LAP transfers with the sale of the permitted

vessel, the transferee of the vessel and ILAP or LAP issued to that

vessel must request the RA to transfer the ILAP or LAP, subject to

requirements specified in paragraphs (l)(2)(ii) and (iii) of this

section, if applicable. The following must accompany the completed

application: The original ILAP or LAP with signatures of both parties

on the back of the permit, the bill of sale of the ILAP or LAP and the

vessel, and a copy of the vessels' documentation or state registration.

(vii) The owner or operator of a vessel issued an ILAP or LAP who

sells the permitted vessel, but retains the ILAP or LAP, must notify

the RA within 30 days after the sale of the change in application

information in accordance with paragraph (i) of this section. If the

owner or operator wishes to transfer the ILAP or LAP to a replacement

vessel, he/she must apply and follow the procedures in paragraph

(l)(2)(iv) of this section.

(viii) As specified in paragraph (f)(4) of this section, a directed

or incidental ILAP or LAP for swordfish, a directed or an incidental

catch ILAP or LAP for shark, and an Atlantic tuna Longline category

permit are required to fish in the swordfish fishery. Accordingly, a

LAP for swordfish obtained by transfer without either a directed or

incidental catch shark LAP or an Atlantic Tunas Longline Category

Permit will not entitle an owner or operator to use a vessel to fish in

the swordfish fishery.

(m) Renewal--(1) General. Persons must apply annually for a vessel

or dealer permit for Atlantic tunas, sharks, swordfish and HMS Charter/

Headboats. A renewal application must be submitted to the RA at least

30 days before a permit's expiration to avoid a lapse of permitted

status. NMFS will renew a permit provided that the specific

requirements for the requested permit are met, all reports required

under the Magnuson-Stevens Act have been submitted, including those

described in Sec. 635.5, and the applicant is not subject to a permit

sanction or denial under paragraph (a)(7) of this section.

(2) Limited access permits for shark and swordfish. As of June 1,

2000, the owner or operator of a vessel of the United States that

fishes for, possesses, lands, or sells shark or swordfish from the

management unit, or takes or possesses such shark or swordfish as

incidental catch, must have a LAP issued pursuant to the requirements

in Sec. 635.4(e) and (f). However, any ILAP that expires June 30,

2000, is valid through that date. Only valid ILAP or LAP holders in the

preceding year are eligible for a LAP.

Sec. 635.5 Recordkeeping and reporting.

(a) Vessels--(1) Logbooks. If an owner or operator of an HMS

Charter/Headboat vessel, an Atlantic Tunas vessel, or a commercial

shark or swordfish vessel, for which a permit has been issued under

Sec. 635.4 (a),(c),(d), (e), and (f) respectively, is selected in

writing by NMFS, he must maintain a fishing record on a logbook

specified by NMFS. Entries are required on the vessel's fishing effort,

and the number of fish landed and discarded. Entries on a day's fishing

activities must be entered on the form within 24 hours and, for a 1-day

trip, before offloading. The owner or operator must submit the form

postmarked within 7 days of offloading all Atlantic HMS.

(2) Weighout slips. If an owner or operator is required to maintain

and submit logbooks under paragraph (a)(1) of this section, and

Atlantic HMS harvested on a trip are sold, the owner or operator must

obtain and submit copies of weighout slips for those fish. Each

weighout slip must show the dealer to whom the fish were transferred,

the date they were transferred, and the carcass weight of each fish for

which individual weights are normally recorded. For fish that are not

individually weighed, a weighout slip must record total weights by

species and market category. The owner or operator must also submit

copies of weighout slips with the logbook forms required under

paragraph (a)(1) of this section.

(b) Dealers. Persons who have been issued a dealer permit under

Sec. 635.4, must submit reports to NMFS (as prescribed by NMFS) and

maintain records as follows:

[[Page 3177]]

(1) Atlantic HMS other than BFT. (i) Dealers must report Atlantic

tunas (including BFT), Atlantic swordfish and swordfish imports, and

Atlantic sharks received on the first through the 15th of each month;

the report must be submitted to NMFS postmarked not later than the 20th

of that month. Reports of such fish received on the 16th through the

last day of each month must be postmarked not later than the 5th of the

following month. If a dealer did not receive Atlantic tunas, swordfish

or swordfish imports, or sharks during a reporting period, he must

submit a report to a designated NMFS address so stating, and the report

must be postmarked as specified for the reporting period.

(ii) The reporting requirement of paragraph (b)(1)(i) of this

section may be satisfied by a dealer if he provides a copy of each

appropriate weighout slip and/or sales record, provided such weighout

slip and/or sales record by itself or combined with the form available

from NMFS includes all of the required information and identifies fish

to the species level.

(iii) In lieu of providing a report required under paragraph

(b)(1)(i) of this section to NMFS by mail, the dealer may give the

report to a state or Federal fishery port agent designated by NMFS. A

report given to such port agent must be delivered not later than the

prescribed postmark date for the reporting period.

(2) BFT--(i) Reports of BFT. The dealer must submit a completed

landing report to a designated NMFS location by electronic facsimile

(fax) or an Interactive Voice Response System on BFT received not later

than 24 hours from receipt. The landing report must be signed by the

permitted vessel's owner or operator immediately upon transfer of the

fish and must verify the name and permit number of the vessel that

landed the fish. The dealer must inspect the vessel's permit to verify

that the required vessel name and vessel permit number are correctly

recorded on the landing report. In addition, the dealer must submit

that landing report to the designated NMFS address postmarked within 24

hours of the purchase or receipt of each BFT. The dealer must also

submit a biweekly report on forms supplied by NMFS. For BFT received on

the first through the 15th of each month, the dealer must submit the

biweekly report forms to NMFS postmarked not later than the 20th of

that month. Reports of receipt of such BFT received on the 16th through

the last day of each month must be postmarked not later than the 5th of

the following month.

(ii) Dealer Tags. NMFS will issue numbered dealer tags to each

person issued a dealer permit for Atlantic tunas under Sec. 635.4. A

dealer tag is not transferable and is usable only by the dealer to whom

it is issued. Dealer tags may not be reused once affixed to a tuna or

recorded on a package, container, or report.

(A) Affixing dealer tags. A dealer or a dealer's agent must affix a

dealer tag to each BFT purchased or received immediately upon its

offloading from a vessel. The dealer or dealer's agent must affix the

tag to the tuna between the fifth dorsal finlet and the keel.

(B) Removal of dealer tags. A dealer tag affixed to any BFT under

paragraph (b)(2)(ii)(A) of this section or a BSD tag affixed to an

imported BFT must remain on the tuna until the tuna is cut into

portions. If the BFT or BFT parts subsequently are packaged for

transport for domestic commercial use or for export, the dealer or BSD

tag number must be written legibly and indelibly on the outside of any

package or container. Such tag number must be recorded on any document

accompanying shipment of BFT for commercial use or export.

(3) Recordkeeping. Dealers must retain at their place of business a

copy of each written report required under paragraphs (b)(1)(i) and

(b)(2)(i) of this section for a period of 2 years from the date on

which each report was required to be submitted.

(c) BFT not sold. (1) Except as specified in paragraph (c)(2) of

this section, persons that catch and land a large medium or giant BFT

and do not transfer it to a dealer who has a dealer permit for Atlantic

tunas, must contact NMFS enforcement at the time of landing such BFT

and, if requested, make the tuna available so that a NMFS enforcement

agent may inspect the fish and attach a tag to it.

(2) Persons that catch and land a large medium or giant BFT that is

counted against the Angling category quota must report it through the

automated catch reporting system by calling 1-888-USA-TUNA. In any

state where a NMFS or state-level harvest tag or catch-card reporting

program is in effect for school, large school, or small medium BFT,

such tags must also be used on large medium and giant BFT reported

under this paragraph (c)(2).

(d) Anglers. In addition to the requirements in paragraph (c) of

this section, the owner of a vessel that has an Angling category permit

for Atlantic tunas will be notified by NMFS of the reporting

requirements and procedures for school, large school, and small medium

BFT. Alternative reporting procedures may be established by NMFS in

cooperation with states and may include telephone, dockside or mail

surveys, mail-in or phone-in reports, tagging programs, or mandatory

BFT check-in stations. A statistically based sampling of persons

fishing under the Angling category may be used for these alternative

reporting programs. Once notified by NMFS of the reporting requirmeents

and procedures, each person so notified must comply with those

requirements and procedures.

(e) Tournament operators. Persons that conduct a fishing tournament

involving scores or awards for the catch of Atlantic HMS, whether or

not retained, from a port in an Atlantic coastal state, including the

U.S. Virgin Islands and Puerto Rico, must notify NMFS of the purpose,

dates, and location of the tournament at least 4 weeks prior to

commencement of the tournament. If selected for reporting, a tournament

operator must maintain and submit to a designated NMFS address a record

of catch and effort on forms available from NMFS. Completed forms must

be submitted to NMFS postmarked not later than the 7th day after the

conclusion of the tournament and must be accompanied by a copy of the

tournament rules.

(f) Inspection. Any person authorized to carry out enforcement

activities under the regulations in this part has authority, without

warrant or other process, to inspect, at any reasonable time, catch on

board a vessel or on the premises of a dealer, logbooks, catch reports,

statistical records, sales receipts, or other records and reports

required by this part to be made, kept, or furnished. An owner or

operator of a fishing vessel that has been issued a permit under

Sec. 635.4 must allow NMFS to inspect and copy any required reports and

the records, in any form, on which the completed reports are based. A

dealer who has been issued a permit under Sec. 635.4 must allow NMFS to

inspect and copy any required reports and the records, in any form, on

which the completed reports are based.

(g) Additional data and inspection. Additional data on Atlantic HMS

may be collected by statistical reporting agents, as designees of NMFS,

and by authorized officers. A person who fishes for or possesses an

Atlantic HMS is required to make such fish or parts thereof available

for inspection by NMFS upon request.

Sec. 635.6 Vessel and gear identification.

(a) Vessel number. For the purposes of this section, a vessel's

number is either the vessel's official number issued by the U.S. Coast

Guard or an analogous state agency.

[[Page 3178]]

(b) Vessel identification. (1) An owner or operator of a vessel for

which a permit has been issued under Sec. 635.4, must display the

vessel's number--

(i) On the port and starboard sides of the deckhouse or hull and on

an appropriate weather deck, so as to be clearly visible from an

enforcement vessel or aircraft.

(ii) In block arabic numerals permanently affixed to or painted on

the vessel in contrasting color to the background.

(iii) At least 18 inches (45.7 cm) in height for vessels over 65 ft

(19.8 m) long and at least 10 inches (25.4 cm) in height for all other

vessels.

(2) The owner or operator of a vessel for which a permit has been

issued under Sec. 635.4 must keep the vessel's number clearly legible

and in good repair and ensure that no part of the vessel, its rigging,

its fishing gear, or any other material on board obstructs the view of

the vessel's number from an enforcement vessel or aircraft.

(c) Gear identification. (1) The owner or operator of a vessel for

which a permit has been issued under Sec. 635.4 and that uses a

handline, harpoon, longline, or shark net, must display the vessel's

registration number or Atlantic Tunas permit number on each float

attached to a handline or harpoon and on the terminal end floats and

high-flyers (if applicable) on a longline or shark net used by the

vessel. A high-flyer is a flag, radar reflector, or radio beacon

transmitter attached to a longline. The vessel's number must be at

least 1 inch (2.5 cm) in height in block arabic numerals in a color

that contrasts with the background color of the float or high-flyer.

(2) An unmarked handline, harpoon, longline, or shark net is

illegal and may be disposed of in an appropriate manner by NMFS or an

authorized officer.

(3) Provisions on gear marking for the southeast U.S. shark

driftnet fishery to implement the Atlantic Large Whale Take Reduction

Plan are set forth in Sec. 229.32 (b) of this title.

Sec. 635.7 At-sea observer coverage.

(a) NMFS may select for observer coverage any trip of a vessel that

has a HMS Charter/Headboat permit, an Atlantic Tunas permit, or a shark

or swordfish permit, issued under Sec. 635.4 (a), (c), (d), (e), and

(f), respectively. NMFS will advise a vessel owner, in writing, when

his or her vessel is selected for observer coverage. The owner or

operator of a vessel that is selected must notify NMFS before

commencing any fishing trip that may result in the harvest of Atlantic

HMS. Notification procedures will be specified in a selection letter

sent by NMFS.

(b) The owner or operator of a vessel on which a NMFS-approved

observer is embarked must comply with Secs. 600.725 and 600.746 of this

chapter and:

(1) Provide accommodations and food that are equivalent to those

provided to the crew.

(2) Allow the observer access to and use of the vessel's

communications equipment and personnel upon request for the

transmission and receipt of messages related to the observer's duties.

(3) Allow the observer access to and use of the vessel's navigation

equipment and personnel upon request to determine the vessel's

position.

(4) Allow the observer free and unobstructed access to the vessel's

bridge, working decks, holding bins, weight scales, holds, and any

other space used to hold, process, weigh, or store fish.

(5) Allow the observer to inspect and copy the vessel's log,

communications logs, and any records associated with the catch and

distribution of fish for that trip.

Sec. 635.8 Educational workshops.

No later than June 1, 2000, each operator of a vessel that uses a

pelagic longline to fish for Atlantic HMS must attend an educational

workshop on measures to reduce the incidental catch of protected

species. A certificate of attendance at such workshop must be available

on such vessel and made available for inspection upon the request of

NMFS.

Sec. 635.9 Vessel monitoring.

(a) An owner or operator of a vessel that fishes for Atlantic HMS

with a pelagic longline must have an operating vessel monitoring system

(VMS) unit on board each trip. Only VMS units that have been approved

by NMFS for use in the fisheries for Atlantic HMS will meet this

requirement.

(b) No person may interfere with, tamper with, alter, damage,

disable, or impede the operation of a VMS unit, or attempt any of the

same.

(c) When a VMS unit fails, or when notified by NMFS that a unit

appears to have failed, the vessel owner or operator must communicate

to a designated NMFS location the vessel's position at least every 2

hours starting when the failure is discovered or NMFS's notification is

received. Each position so reported must be communicated to NMFS within

2 hours of the time of the position. The vessel's owner or operator

must replace or repair a failed VMS unit prior to the vessel's next

trip.

Subpart B--Limited Access

Sec. 635.16 Limited access permits.

As of June 1, 1999, the only valid commercial vessel permits for

shark and swordfish are those that have been issued under the limited

access criteria specified in this section.

(a) Eligibility requirements for ILAPs--(1) Directed permits. To be

eligible for a directed ILAP in the shark or swordfish fishery, a

vessel owner or an operator that qualified that vessel for a Federal

commercial permit must demonstrate past participation in the respective

fishery by having:

(i) Been the owner or qualifying operator of a vessel that was

issued a valid permit for the respective fishery at any time during the

period July 1, 1994, through December 31, 1997; and

(ii) Documented landings from the respective Federally permitted

vessel that he or she owned or was the qualifying operator of at least:

(A) One hundred and two sharks per year for any 2 calendar years

during the period January 1, 1991, through December 31, 1997, provided

the landings after July 1, 1993, occurred when the permit was valid; or

(B) Twenty-five swordfish per year for any 2 calendar years during

the period January 1, 1987, through December 31, 1997, provided the

landings occurred when the permit was valid; and

(iii) Been the owner or qualifying operator of a vessel that:

(A) Had a valid Federal shark permit at any time during the period

July 1, 1998, through August 4, 1998, or

(B) Had a valid Federal swordfish permit at any time during the

period June 1, 1998, through August 31, 1998.

(2) Incidental catch permits. To be eligible for an incidental ILAP

in the shark or swordfish fishery, a vessel owner or an operator that

qualified that vessel for a Federal commercial permit must demonstrate

past participation in the respective fishery by having:

(i) Been the owner or qualifying operator of a vessel that was

issued a valid permit for the respective fishery at any time during the

period July 1, 1994, through December 31, 1997; and

(ii) Documented landings from the respective federally permitted

vessel that he or she owned or was the qualifying operator of at least:

(A) Seven sharks during the period January 1, 1991, through

December 31, 1997, provided the landings after July 1, 1993, occurred

when the permit was valid; or

(B) Eleven swordfish during the period January 1, 1987, through

December 31, 1997, provided the

[[Page 3179]]

landings occurred when the permit was valid; and

(iii) Been the owner or qualifying operator of a vessel that:

(A) Had a valid Federal shark permit at any time during the period

July 1, 1998, through August 4, 1998, or

(B) Had a valid Federal swordfish permit at any time during the

period June 1, 1998, through August 31, 1998; and

(iv) Met either the gross income from fishing or the gross sales of

fish requirement specified in paragraph (a)(3)(i) or (ii) of this

section; or

(v) Been the owner of a vessel that had a permit for Atlantic tuna

in the Incidental category at any time from January 1, 1998, through

August 31, 1998; or

(vi) Been the owner of a vessel that is eligible for a directed or

incidental ILAP for swordfish.

(3) Handgear permits. To be eligible for a swordfish handgear

ILAP--

(i) The owner's gross income from commercial fishing (i.e., harvest

and first sale of fish) or from charter/headboat fishing must be more

than 50 percent of his or her earned income, during one of the 3

calendar years preceding the application; or

(ii) The owner's gross sales of fish harvested from his or her

vessel must have been more than $20,000, during one of the 3 calendar

years preceding the application; or

(iii) The owner must provide documentation of having been issued a

swordfish permit for use with harpoon gear; or

(iv) The owner must document his or her historical landings of

swordfish with handgear through logbook records, verifiable sales slips

or receipts from registered dealers or state landings records.

(b) Landings histories. For the purposes of the landings history

criteria in paragraphs (a)(1)(ii) and (a)(2)(ii) of this section,

(1) The owner or qualifying operator of a permitted vessel at the

time of a landing retains credit for the landing unless ownership of

the vessel has been transferred and there is a written agreement signed

by both parties to the transfer, or there is other credible written

evidence that the original owner transferred the landings history to

the new owner.

(2) A vessel's landings history may not be divided among owners. A

transfer of credit for landings history must be for the entire record

of landings under the previous owner or operator.

(3) Vessel landings histories may not be consolidated among

vessels. Owners or operators may not pool landings histories to meet

the eligibility requirements.

(4) If more than one person claims eligibility for an ILAP based on

a vessel=s ownership or permit or landings history, the applicants

claiming the ownership or permit or landings history must determine

which person will receive the ILAP. NMFS will issue only one ILAP based

on a vessel's ownership or permit or landings history.

(c) Alternative eligibility requirements for initial permits. (1)

Persons that acquired ownership of a vessel and its landings history

after December 31, 1997, are exempt from the requirement to have owned

a federally permitted shark or swordfish vessel at any time during the

period July 1, 1994, through December 31, 1997. The acquired landings

history must meet the criteria for a directed or incidental catch

permit specified in paragraph (a)(1)(ii)(A), (a)(1)(ii)(B),

(a)(2)(ii)(A) or (a)(2)(ii)(B) of this section, and such persons must

have had a valid Federal shark permit at any time during the period

July 1, 1998, through August 4, 1998, or a valid Federal swordfish

permit at any time during the period June 1, 1998, through August 31,

1998.

(2) If a person first obtained a shark or swordfish permit in 1997,

the required shark landings for a directed or incidental catch permit

specified in paragraphs (a)(1)(ii) and (a)(2)(ii) are modified as

follows:

(i) To qualify for a directed shark or swordfish ILAP,

respectively, such persons must document landings from a Federally

permitted vessel of at least:

(A) One hundred and two sharks in calendar year 1997, provided such

landings occurred when the permit was valid, or

(B) Twenty-five swordfish in calendar year 1997, provided such

landings occurred when the permit was valid.

(ii) To qualify for an incidental shark or swordfish catch ILAP,

respectively, such persons must document landings from a federally

permitted vessel of at least one shark or swordfish in calendar year

1997, provided such landings occurred when the permit was valid.

(d) Procedures for initial issue of limited access permits--(1)

Notification of status. (i) Shortly after the final rule is published,

the Division Chief will notify by certified mail each owner or

qualifying operator of a vessel that had a valid Federal shark permit

during the period July 1, 1998, through August 4, 1998, each owner of a

vessel that had a valid Federal swordfish permit during the period June

1, 1998, through August 31, 1998, and each owner of a vessel that had a

valid Atlantic tuna Incidental category permit at any time from January

1, 1998, through August 31, 1998, of the initial determination of the

owner's eligibility for a directed or incidental catch ILAP. The

Division Chief will make the initial determination based on the

criteria in paragraphs (a)(1), (a)(2), and (c)(2) of this section and

records available to NMFS. The Division Chief will not make initial

determinations of eligibility for a vessel permit under the alternative

eligibility requirements specified in paragraph (a)(3) or (c)(1) of

this section.

(ii) If NMFS determines that all qualifications for a directed or

incidental catch ILAP have been met, no further action is required-the

appropriate permit for the vessel will be included with the

notification. An ILAP issued by NMFS will be valid through the marked

expiration date.

(iii) A person must apply to the Division Chief for the appropriate

permit if--

(A) He or she does not agree with the initial determination;

(B) He or she believes that he or she qualifies for a directed or

incidental catch ILAP but did not receive a letter from the Division

Chief regarding eligibility status; or

(C) He or she believes that he or she qualifies for a swordfish

handgear permit.

(2) Applications for ILAPs. (i) Application forms and instructions

are available from the Division Chief. A completed signed application

form and required supporting documents must be submitted by the vessel

owner or operator; or in the case of a corporate-owned vessel, an

officer or shareholder; or in the case of a partnership-owned vessel, a

general partner.

(ii) An application for a directed or incidental catch ILAP must be

received by the Division Chief no later than 90 days after the final

rule is published. An application for an initial swordfish handgear

permit must be received by the Division Chief no later than 180 days

after the final rule is published. An application received by the

Division Chief after these dates will not be considered.

(iii) Each application must be accompanied by documentation showing

that the criteria for the requested permit have been met. Vessel

landings of sharks through June 30, 1993, may be documented by

verifiable sales slips or receipts from registered dealers or by state

landings records. Vessel landings of sharks after July 1, 1993, and all

vessel landings of swordfish may be documented only by fishing vessel

logbook records that NMFS received before March 2, 1998.

[[Page 3180]]

NMFS will not count a landing when the vessel did not have a valid

Federal permit.

(iv) Information submitted on an application and documentation in

support of an application are subject to verification by comparison

with Federal, state, and other records and information. Submission of

false information or documentation may result in disqualification from

initial participation in the shark fishery and may result in Federal

prosecution.

(v) If the Division Chief receives an incomplete application in a

timely manner, NMFS will notify the applicant of the deficiency. If the

applicant fails to correct the deficiency within 30 days of the date of

the Division Chief's notification, the application will be considered

abandoned.

(3) Actions on applications. Within 30 days of receipt of a

complete application, the Division Chief will take one of the following

actions:

(i) If the eligibility requirements are met, the Division Chief

will issue the appropriate ILAP which will be valid through the marked

expiration date.

(ii) If the information and documentation presented in the

application are insufficient, inconsistent with vessel ownership,

landings history, and other information available from NMFS' records,

or cannot be verified, the Division Chief will notify the applicant

that the information supplied is not adequate to warrant issuance of

the requested permit. The applicant will have 30 days to submit to the

Division Chief corroborating documents in support of the application or

to submit a revised application.

(iii) If, based on the information and documentation supplied with

the application, the Division Chief determines that the applicant does

not meet the eligibility criteria for the requested vessel permit, the

Division Chief will deny the application. Each letter of denial will be

sent via certified mail. If, based on the documentation supplied, the

Division Chief believes the applicant is qualified for an incidental

catch vessel permit instead of the requested directed ILAP, he or she

will notify the applicant of the denial of the requested directed ILAP

but will issue the incidental catch ILAP.

(4) Appeals. (i) If an application for an ILAP is denied or an

incidental catch ILAP is issued instead of the requested directed ILAP,

the applicant may appeal the denial to the Office Director. The sole

grounds for appeal is that the original denial by the Division Chief

was based on incorrect or incomplete information. No other grounds will

be considered. An appeal must be in writing, must be received by the

Office Director within 90 days of the notice of denial, must specify

the grounds for the appeal, and must include documentation supporting

the grounds for the appeal. Documentation of vessel landings of sharks

through June 30, 1993, that the Office Director may consider in support

of an appeal are verifiable sales slips or receipts from registered

dealers, or state landings records. The only documentation of vessel

landings of sharks after July 1, 1993, that the Office Director will

consider in support of an appeal are official NMFS logbook records that

NMFS received prior to March 2, 1998. The Office Director will not

accept vessel landings records of sharks dated after July 1, 1993, from

periods in which a vessel did not have a valid Federal shark permit.

The only documentation of vessel landings of swordfish that the Office

Director will consider in support of an appeal are official NMFS

logbook records that NMFS received prior to March 2, 1998. Photocopies

of documentation (e.g., permits, logbook reports) will be acceptable

for initial submission. The Office Director may request originals at a

later date, which would be returned to the appellant via certified

mail.

(ii) Upon receipt of a written appeal with supporting

documentation, the Office Director may issue a provisional ILAP that is

valid for the pendency of the appeal. This provisional permit will be

valid only for use with the specified gear and will be subject to all

regulations contained in this part.

(iii) The Office Director will appoint an appeals officer who will

review the appeal documentation and other available records. The

appeals officer will make findings and a recommendation, which shall be

advisory only, to the Office Director.

(iv) The Office Director will make a final decision on the appeal

and send the appellant notice of the decision by certified mail. The

Office Director's decision is the final administrative action of the

Department of Commerce on the application.

(v) If the appeal is denied, the provisional permit will become

invalid 5 days after receipt of the notice of denial, which NMFS will

send by certified mail. If the appeal is accepted, NMFS will issue an

appropriate permit.

(5) Contested eligibility criteria. If more than one person claims

eligibility for an ILAP based on contested vessel's ownership, permit,

or landings histories, the owners or operators claiming the ownership/

permit/landings histories must determine which person will receive the

ILAP. The Division Chief or Office Director will issue only one permit

based on a vessel's ownership/permit/landings histories. In the event

that the parties are unable to reach resolution, NMFS will not issue a

permit to any of the parties.

(e) Transfers of limited access permits. For provisions on transfer

of limited access permits, see Sec. 635.4(l).

(f) Renewals of limited access permits. For provisions on renewal

of limited access permits, see Sec. 635.4(m).

Subpart C--Management Measures

Sec. 635.19 BFT size classes.

The CFL of any BFT found with the head removed will be calculated

using the following formula: CFL equals pectoral fin curved fork length

(PFCFL) multiplied by a factor of 1.35. The CFL, as taken or determined

by conversion of the PFCFL, will be the sole criterion for determining

the size class of a beheaded BFT. This formula may be changed if

additional information becomes available by filing a notice at the

Office of the Federal Register of the new formula.

Sec. 635.20 Size limits.

(a) General. CFL will be the sole criterion for determining the

size and/or size class of whole (head on) Atlantic tunas.

(b) BFT, bigeye tuna, and yellowfin tuna. (1) No person may take,

retain, or possess a BFT, bigeye tuna, or yellowfin tuna in the

Atlantic Ocean that is less than 27 inches (69 cm)CFL;

(2) Further, no person may retain or possess a BFT with the head

removed that is less than 20 inches (51 cm), PFCFL.

(3) No person may remove the head of a bigeye tuna or yellowfin

tuna if the remaining portion is less than 27 inches (69 cm), CFL.

(c) Billfish. No person may take a billfish from, or retain or

possess a billfish in its management area that is less than the

following minimum size limits:

(1) Blue marlin--99 inches (251 cm), LJFL.

(2) White marlin--66 inches (168 cm), LJFL.

(3) Sailfish--63 inches (160 cm), LJFL.

(d) Sharks. No person may take, retain, or possess any species

classified as a ridgeback LCS shark in or from the Atlantic EEZ, that

is less than 54 inches (137 cm), FL, or, if the head and fins have been

removed, 30 inches (76 cm), from the forward edge of the cut where the

first dorsal fin is removed to the precaudal pit. If the precaudal pit

has been removed, such measurement will be to the posterior edge of the

carcass.

[[Page 3181]]

(e) Swordfish. (1) No person may take, retain, or possess a

swordfish on board a fishing vessel in the Atlantic Ocean that is less

than 29 inches (73 cm), CK. CK length will be the sole criterion for

determining the size of Atlantic swordfish caught.

(2) A swordfish or part thereof that weighs less than 33 lb (15

kg), dw, is deemed to have been harvested by a vessel of the United

States and in violation of the minimum size if less than 29 inches (73

cm) CK unless it is accompanied by a certificate of eligibility. The

certificate should attest that the swordfish was imported, and either

harvested from other than the Atlantic Ocean, or that the fish part was

derived from an Atlantic swordfish that weighed at least 33 lb (15 kg)

dw at harvest. Refer to Sec. 635.46(b) for the requirements related to

the certificate of eligibility.

(3) A swordfish or part thereof will be monitored for compliance

with the minimum size requirement from the time it is landed in or

imported into the United States to the first point of transaction and

including the time and place that it is filleted, cut into steaks, or

processed in any way that physically alters it.

Sec. 635.21 Gear operation and deployment restrictions.

(a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested

in its management area that is not retained must be released in a

manner that will ensure maximum probability of survival, but without

removing the fish from the water.

(2) If a billfish is caught by a hook, the fish must be released by

cutting the line near the hook or by using a dehooking device, in

either case without removing the fish from the water.

(b) General. No person may use any gear to fish for Atlantic HMS

other than those gears specifically authorized in this part. A vessel

using or having on board in the Atlantic Ocean any unauthorized gear

may not have on board an Atlantic HMS.

(c) Pelagic longlines. (1) From August 1, 1999, through November

30, 1999, no person may deploy a pelagic longline that is more than 24

nautical miles (nm) (44.5 km) in length in the Mid-Atlantic Bight.

(2) No person that fishes in the following areas during the

following periods and has a pelagic longline on board may possess

Atlantic tunas or swordfish. No person may use a pelagic longline in

the following areas and periods:

(i) Southeastern United States closed area--December 1 through

March 31.

(ii) Great South Channel closed area--March 1 through June 30.

(iii) Cape Cod Bay closed area--February 1 through April 30.

(iv) Florida Straits --July 1 through September 30.

(3) When the gear being fished by a person aboard a vessel that has

a permit for Atlantic HMS hooks or entangles a marine mammal or sea

turtle, the operator of the vessel must immediately release the animal,

retrieve his fishing gear, and move at least 1 nm (2 km) from the

location of the incident before resuming fishing. Reports of marine

mammal entanglements must be submitted to NMFS consistent with

regulations in Sec. 229.6 of this title.

(d) Authorized gear--(1) Atlantic tunas. No person that fishes for,

takes, retains, or possesses Atlantic tunas may have on board or use

any gear other than that authorized for the category for which the

Atlantic tunas permit has been issued for the harvesting vessel. Gear

types authorized for each Atlantic tunas permit category are:

(i) Angling. Rod and reel (including downriggers) and handline.

(ii) Charter/Headboat. Rod and reel (including downriggers), bandit

gear, and handline.

(iii) General. Rod and reel (including downriggers), handline,

harpoon, and bandit gear.

(iv) Harpoon. Harpoon.

(v) Longline. Longline.

(vi) Purse Seine. Purse seine.

(A) Mesh size. (1) A purse seine used in directed fishing for BFT

must have a mesh size equal to or smaller than 4.5 inches (11.4 cm) in

the main body (stretched when wet) and must have at least 24-count

thread throughout the net.

(2) NMFS may exempt an owner or operator from the mesh requirements

in paragraph (d)(2)(i) of this section if the exemption will not result

in significant injury or mortality to BFT that are encircled by the net

but manage to escape.

(B) Inspection of purse seine vessels. Persons that own or operate

a purse seine vessel conducting a directed fishery for Atlantic tunas

must have their fishing gear inspected for mesh size by an enforcement

agent of NMFS prior to commencing fishing for the season in any fishery

that may result in the harvest of Atlantic tunas. Such persons must

request such inspection at least 24 hours before commencement of the

first fishing trip of the season. If NMFS does not inspect the vessel

within 24 hours of such notification, the inspection requirement is

waived. In addition, at least 24 hours before commencement of

offloading any BFT after a fishing trip, such persons must request an

inspection of vessel and catch by notifying NMFS. If NMFS does not

inspect the vessel at offloading, the inspection requirement is waived.

(vii) Trap. Pound net and fish weir. Trap gear is authorized for

BFT only.

(2) Billfish. (i) Persons may possess a billfish in or take a

billfish from its management area only if it is harvested by rod and

reel. Regardless of how taken, persons may not possess a billfish in or

take a billfish from its management area on board a vessel using or

having on board a pelagic longline.

(ii) In a hook-and-line fishery for billfish, persons may not use

more than one hook per bait or lure.

(3) Sharks. (i) No person may possess a shark in or take a shark

from its management area by any gear other than rod and reel, longline,

or driftnet.

(ii) No person may use a driftnet with a total length of 2.5 km or

more to fish for sharks. No person may have on board a vessel a

driftnet with a total length of 2.5 km or more.

(iii) Provisions on gear deployment for the southeast U.S. shark

net fishery to implement the Atlantic Large Whale Take Reduction Plan

are set forth in Sec. 229.32 (f) of this title.

(4) Swordfish. (i) No person may possess Atlantic swordfish taken

by any gear other than rod and reel, harpoon, handline, or longline

unless he or she possesses an Incidental LAP for swordfish. A swordfish

from its management area may not be taken by a driftnet, and may not be

retained, or possessed by a vessel with a driftnet on board.

(ii) A swordfish will be deemed to have been harvested by a

driftnet when it is onboard, or offloaded from a vessel using or having

onboard a driftnet.

(iii) A swordfish will be deemed to have been harvested by handgear

when it is onboard, or offloaded from a vessel using or having onboard

handgear if such vessel does not have a longline on board.

Sec. 635.22 Recreational retention limits.

(a) General. Recreational retention limits apply to billfish taken

from or possessed in the management area, a shark taken from or

possessed in the Atlantic EEZ, and a yellowfin tuna taken from or

possessed in the Atlantic Ocean. The operator of a vessel for which a

retention limit applies is responsible for the vessel trip limit and

the cumulative retention limit based on the number of persons aboard.

The retention limits apply to a person who fishes in any manner, except

a person aboard a vessel that has on board the commercial vessel permit

issued under

[[Page 3182]]

Sec. 635.4 for the appropriate species/species group. Federal

recreational retention limits may not be combined with any recreational

retention limit applicable in state waters.

(b) Billfish. One white marlin, blue marlin or sailfish may be

retained per vessel per trip. No longbill spearfish may be retained.

NMFS may decrease the retention limit for blue and/or white marlin to

zero if NMFS projects that the landings limit for the applicable

species will be reached. Such decrease will be based on a review of

current landings data, and any other relevant factors. NMFS will file

for publication notification of any decrease in retention limit with

the Office of the Federal Register at least 3 calendar days prior to

the decrease becoming effective.

(c) Sharks. (1) Large coastal sharks, prohibited sharks, small

coastal sharks. None may be retained.

(2) Pelagic shark. One pelagic shark per vessel per trip may be

retained.

(d) Yellowfin tuna. Three yellowfin tunas per person per day may be

retained. Regardless of the length of a trip, no more than three

yellowfin tuna per person may be retained on board a vessel.

Sec. 635.23 Retention limits for BFT.

The retention limits in this section are subject to the quotas and

closure provisions in Secs. 635.27 and 635.28.

(a) General category. (1) A person aboard a vessel that has a

General Category Atlantic Tunas Permit may not possess, retain, land,

or sell a BFT in the school, large school, or small medium size class.

(2) On an RFD, a person aboard a vessel that has a General Category

Atlantic Tunas Permit may not possess, retain, land, or sell a BFT in

the large medium or giant size class. On days other than RFDs, when the

General Category is open, one large medium or giant BFT may be caught

and landed from such vessel per day. NMFS will annually publish a

schedule of RFDs in the Federal Register. An RFD applies only when the

General Category fishery is open.

(3) Regardless of the length of a trip, no more than a single day's

retention limit of large medium or giant BFT may be possessed or

retained aboard a vessel that has a General Category Atlantic Tunas

Permit. On days other than RFDs, when the General Category is open, no

person aboard such vessel may continue to fish and the vessel must

immediately proceed to port once the applicable limit for large medium

or giant BFT is retained.

(4) To provide for maximum utilization of the quota for BFT, NMFS

may increase or decrease the daily retention limit of large medium and

giant BFT over a range from zero (on RFDs) to a maximum of three per

vessel. Such increase or decrease will be based on a review of dealer

reports, daily landing trends, availability of the species on the

fishing grounds, and any other relevant factors. NMFS will publish

notification in the Federal Register of any adjustment in the allowable

daily retention limit specified in paragraph (b)(2) of this section.

NMFS will file such notification at the Office of the Federal Register

at least 3 calendar days prior to the change becoming effective.

(b) Angling category--(1) Large medium and giant BFT. (i) No large

medium or giant BFT may be retained, possessed, landed, or sold in the

Gulf of Mexico, except one per vessel per year, which may be caught

incidentally to fishing for other species.

(ii) One per vessel per year may be retained, possessed, and landed

in non-Gulf of Mexico areas.

(iii) When a large medium or giant BFT has been caught and retained

under paragraph (b)(1) of this section, no person aboard the vessel may

continue to fish and the vessel must immediately proceed to port. Large

medium and giant BFT caught by a person aboard a vessel with an Angling

Category Atlantic Tunas Permit may not be sold or transferred to any

person for a commercial purpose. The owner or operator of the vessel

must report the large medium or giant BFT via the automated catch

reporting system by telephone within 24 hours of landing.

(2) School, large school, or small medium BFT. One per vessel per

day may be retained, possessed, or landed. Regardless of the length of

a trip, no more than a single day's allowable catch of school, large

school, or small medium BFT may be possessed or retained aboard a

vessel that has an Angling Category Atlantic Tunas Permit.

(3) Changes to retention limits. To provide for maximum utilization

of the quota for BFT spread over the longest period of time, NMFS may

increase or decrease the retention limit for any size class BFT or

change a vessel trip limit to an angler limit and vice versa. Such

increase or decrease will be based on a review of daily landing trends,

availability of the species on the fishing grounds, and any other

relevant factors. NMFS will file such notification at the Office of the

Federal Register at least 3 calendar days prior to the change becoming

effective.

(c) HMS Charter/Headboat. (1) When fishing in the Gulf of Mexico,

the restrictions applicable to the Angling category specified in

paragraphs (b)(1) and (2) of this section apply to a vessel that has an

HMS Charter/Headboat permit.

(2) When fishing other than in the Gulf of Mexico when the fishery

for the General category is closed, the restrictions applicable to the

Angling category specified in paragraphs (b)(1) through (3) of this

section apply on a vessel that has an HMS Charter/Headboat permit.

(3) When fishing other than in the Gulf of Mexico and when the

fishery under the General category has not been closed under

Sec. 635.28, a person aboard a vessel that has an HMS Charter/Headboat

permit may fish under either the retention limits applicable to the

General category specified in paragraphs (a)(2) and (3) of this section

or the retention limits applicable to the Angling category specified in

paragraphs (b)(2) and (3) of this section. The size category of the

first BFT retained will determine the fishing category applicable to

the vessel that day.

(d) Harpoon category. A vessel that has a Harpoon Category Atlantic

Tunas Permit may retain, possess, or land multiple giant BFTs per day,

but only one large medium BFT per vessel per day may be retained,

possessed, or landed.

(e) Purse Seine category. Persons that own or operate a vessel that

has a Purse Seine Category Atlantic Tunas Permit,

(1) May retain, possess, land, or sell large medium BFT in amounts

not exceeding 15 percent, by weight, of the giant BFT landed on that

trip, provided that the total amount of large medium BFT landed by that

vessel during the fishing year does not exceed 10 percent, by weight,

of the total amount of giant BFT allocated to that vessel for that

fishing year.

(2) May retain, possess or land BFT smaller than the large medium

size class that are taken incidentally when fishing for skipjack tuna

or yellowfin tuna in an amount not exceeding 1 percent, by weight, of

the skipjack tuna and yellowfin tuna landed on that trip. Landings of

BFT smaller than the large medium size class may not be sold and are

counted against the Purse Seine category BFT quota allocated to that

vessel.

(f) Longline category. An owner or operator of a vessel that has a

Longline Category Atlantic Tunas Permit may retain, possess, land, or

sell large medium and giant BFT taken incidentally in fishing for other

species. Limits on such retention/possession/landing/sale are as

follows:

[[Page 3183]]

(1) For landings south of 34 deg.00' N. lat., one large medium or

giant BFT per vessel per trip may be landed, provided that for the

months of January through April at least 1,500 lb (680 kg), and for the

months of May through December at least 3,500 lb (1,588 kg), either dw

or round weight, of species other than BFT are legally caught,

retained, and offloaded from the same trip and are recorded on the

dealer weighout slip as sold.

(2) For landings north of 34 deg.00' N. lat., landings per vessel

per trip of large medium and giant BFT may not exceed 2 percent by

weight, either dw or round weight, of all other fish legally caught,

retained, and offloaded from the same trip and which are recorded on

the dealer weighout slip as sold.

(g) Trap category. Persons that own or operate a vessel that has a

Trap Category Atlantic Tunas Permit may retain, possess, land, and sell

each fishing year only one large medium or giant BFT that is taken

incidentally while fishing for other species with a pound net or fish

weir.

Sec. 635.24 Commercial retention limits for sharks and swordfish.

The retention limits in this section are subject to the quotas and

closure provisions in Secs. 635.27 and 635.28.

(a) Sharks. (1) Persons that own or operate a vessel that has a

directed ILAP or LAP for shark issued pursuant to Sec. 635.16 may

retain, possess or land no more than 4,000 lb (1,814 kg), dw, of LCS

per trip.

(2) Persons that own or operate a vessel that has an incidental

catch ILAP or LAP for sharks may retain, possess or land no more than

five LCS and 16 SCS and pelagic sharks, combined, per trip.

(b) Swordfish. Persons that own or operate a vessel that has an

incidental catch permit for swordfish may retain, possess, or land no

more than two swordfish per trip in or from the Atlantic Ocean north of

5 deg. N. lat. or landed in an Atlantic coastal state, except persons

that own or operate a vessel in the squid trawl fishery that has such

permit may retain, possess, or land no more than five swordfish per

trip in or from the Atlantic Ocean north of 5 deg. N. lat. or landed in

an Atlantic coastal state. A vessel is considered to be in the squid

trawl fishery when it has no commercial fishing gear other than trawls

on board and squid constitute not less than 75 percent by weight of the

total fish on board or offloaded from the vessel.

Sec. 635.26 Catch and release.

(a) BFT. (1) Notwithstanding other provisions of this part, an

angler may fish for BFT under a tag and release program, provided the

angler tags all BFT so caught with conventional tags issued or approved

by NMFS, returns such fish to the sea immediately after tagging with a

minimum of injury, and reports the catching of the tagged BFT. If NMFS-

issued or NMFS-approved conventional tags are not on board a vessel,

all anglers aboard that vessel are ineligible to fish under the tag and

release program.

(2) Persons may obtain NMFS-issued conventional tags, reporting

cards, and detailed instructions for their use from the NMFS

Cooperative Tagging Center. Persons may use a conventional tag obtained

from a source other than NMFS to tag BFT, provided the use of such tags

is registered each year with the Cooperative Tagging Center and the

NMFS program manager has approved the use of a conventional tag from

that source. An angler using an alternative source of tags wishing to

tag BFT may contact the NMFS Cooperative Tagging Center at the

Southeast Fishery Science Center.

(3) An angler registering for the HMS tagging program is required

to provide his or her name, address, phone number and, if applicable,

the identity of the alternate source of tags.

(b) Sharks. Notwithstanding other provisions of this part, a person

may fish for white sharks (Carcharodon carcharias), blue sharks

(Prionace glauca), or Atlantic sharpnose sharks (Rhizoprionodon

terraenovae) with rod and reel under a catch and release program,

provided the person tags and releases such fish to the sea immediately

with a minimum of injury.

Sec. 635.27 Quotas.

(a) BFT. Consistent with ICCAT recommendations, NMFS has divided

the fishing year's total amount of BFT that may be caught, retained,

possessed, or landed by persons and vessels subject to U.S.

jurisdiction among the General, Angling, Harpoon, Purse Seine,

Longline, and Trap categories of Atlantic Tunas permits and the HMS

Charter/Headboat permit holders. Allocations of quota are according to

the following percentages: General - 47.1 percent; Angling - 19.7

percent, which includes the school BFT held in reserve as described

under paragraph (a)(7)(ii) of this section; Harpoon - 3.9 percent;

Purse Seine - 18.6 percent or 250 mt, whichever is less; Longline - 8.1

percent; and Trap - 0.1 percent. In addition, NMFS is holding in

reserve 2.5 percent of the quota of BFT for inseason adjustments, to

compensate for overharvest in any category other than the Angling

category school BFT subquota or for fishery independent research. NMFS

may apportion a quota allocated to any category to specified fishing

periods or to geographic areas. BFT quotas are specified in whole

weight.

(1) General category quota. (i) Catches from vessels for which

General Category Atlantic Tunas Permits have been issued and certain

catches from vessels for which an HMS Charter/Headboat permit has been

issued are counted against the General category quota. See

Sec. 635.23(c)(3) regarding catches by vessels with an HMS Charter/

Headboat permit that are counted against the General category quota.

The total amount of large medium and giant BFT that may be caught,

retained, possessed, landed, or sold under the General category quota

is 47.1 percent of the overall U.S. quota, available for periods as

follows:

(A) June 1 through August 31--60 percent;

(B) September 1 through September 30--30 percent; and

(C) October 1 through May 31--10 percent.

(ii) NMFS will adjust each period's quota based on overharvest or

underharvest in the prior period.

(iii) When the remainder of the fishing year's quota is projected

to be 10 mt, NMFS will file a notification at the Office of the Federal

Register that sets aside the remaining quota for an area comprising the

waters north of 38 deg.47' N. lat. and south and west of a straight

line originating at a point on the southern shore of Long Island at

72 deg.27' W. long. (Shinnecock Inlet) and running south-southeast 150

degrees true. The daily catch limit for this set-aside area will be one

large medium or giant BFT per vessel per day. Upon the effective date

of the set-aside, fishing for, possessing, retaining, or landing large

medium or giant BFT must cease in all waters outside the set-aside

area.

(iv) The remainder of each preceding category may be caught,

retained, possessed, and landed north of 38 deg. 47' N. lat.

(2) Angling category quota. The total amount of BFT that may be

caught, retained, possessed, and landed by anglers aboard vessels for

which Angling Category Atlantic Tunas Permit or an HMS Charter/Headboat

permit have been issued is 19.7 percent of the overall U.S. BFT quota.

No more than 2.3 percent of the Angling category quota may be large

medium or giant BFT and no more than 8 percent of the overall U.S. BFT

quota may be school BFT. The Angling category includes the school BFT

held in reserve described under paragraph (a)(7)(ii) of this section.

[[Page 3184]]

The size class subquotas for BFT are further subdivided as follows:

(i) Under paragraph (a)(7)(ii) of this section, 47.2 percent of the

school BFT Angling category quota, minus the school BFT quota held in

reserve may be caught, retained, possessed, or landed south of 38 deg.

47' N. lat.

(ii) 47.2 percent of the large school/small medium BFT Angling

categ

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