[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Rules and Regulations]
[Pages 29090-29160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13090]
[[Page 29089]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Part 285 et al.
Atlantic Highly Migratory Species Fisheries; Fishery Management Plan,
Plan Amendment, and Consolidation of Regulations; Final Rule
Federal Register / Vol. 64, No. 103 / Friday, May 28, 1999 / Rules
and Regulations
[[Page 29090]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 285, 300, 600, 630, 635, 644, and 678
[Docket No. 981216308-9124-02; I.D. 071698B]
RIN 0648-AJ67
Atlantic Highly Migratory Species (HMS) Fisheries; Fishery
Management Plan (FMP), Plan Amendment, and Consolidation of Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues final regulations to implement the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP),
and Amendment 1 to the Atlantic Billfish Fishery Management Plan
(Billfish FMP). This action implements the requirements of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), implements the recommendations of the International
Commission for the Conservation of Atlantic Tunas (ICCAT) as required
by the Atlantic Tunas Convention Act (ATCA), and consolidates
regulations for HMS conservation and management into one part of the
Code of Federal Regulations (CFR) to comply with the President's
Regulatory Reinvention Initiative.
DATES: This rule is effective July 1, 1999 except that the addition of
Sec. 635.25 and the removal and reservation of Secs. 285.22 and
644.21(a) are effective May 24, 1999, the revisions to Sec. 600.725(v)
will be effective July 26, 1999, Sec. 635.69 will be effective
September 1, 1999, and Sec. 635.4(b) will be made effective when the
Office of Management and Budget (OMB) approves the information
collection contained therein. When approved, NMFS will publish in the
Federal Register notification of the effective date of Sec. 635.4(b).
ADDRESSES: Copies of the HMS FMP, Amendment 1 to the Billfish FMP, the
final rule and supporting documents, including the Revised Final
Environmental Impact Statements (FEIS) and the Final Regulatory
Flexibility Analyses (FRFA), summaries of these items, or information
on sources for permit applications and reporting forms can be obtained
from Rebecca Lent, Chief, Highly Migratory Species Management Division,
Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway,
Silver Spring, MD 20910-3282, phone (301) 713-2347, fax (301) 713-1917.
FOR FURTHER INFORMATION CONTACT: Pat Scida regarding tuna issues at
(978) 281-9260; Jill Stevenson regarding swordfish issues at (301) 713-
2347; Margo Schulze regarding shark issues at (301) 713-2347; Buck
Sutter regarding billfish issues at (727) 570-5447; Karyl Brewster-
Geisz regarding limited access at (301) 713-2347; and Chris Rogers
regarding the regulatory consolidation at (301) 713-2347.
SUPPLEMENTARY INFORMATION: To meet requirements of the Magnuson-Stevens
Act, NMFS prepared an FMP for Atlantic tunas, swordfish and sharks and
an amendment to the Atlantic Billfish FMP. NMFS published a Notice of
Availability of the Draft Amendment 1 to the Billfish FMP on October 9,
1998 (63 FR 54433) with a comment period ending on January 7, 1999, and
a Notice of Availability of the Draft HMS FMP on October 26, 1998 (63
FR 57093), with a comment period ending on January 25, 1999. NMFS
published a proposed rule to implement the FMPs on January 20, 1999 (64
FR 3154) and extended the comment periods for the FMP documents from
January 25 to March 4, 1999, to coincide with the comment period on the
proposed rule. NMFS scheduled public hearings to receive comments on
the FMPs and proposed regulations, announced in the Federal Register on
January 22, 1999 (64 FR 3486).
NMFS did not identify a preferred alternative for BFT stock
rebuilding in the draft HMS FMP because new information on stock status
from the September 1998 stock assessment by the Standing Committee on
Research and Statistics (SCRS), as well as the results of negotiations
at the November 1998 ICCAT meeting, were not available at the time. On
February 25, 1999, NMFS published a Notice of Availability of an
addendum to the Draft HMS FMP and proposed supplemental regulations to
implement the addendum (64 FR 9298). The addendum and supplemental rule
contained alternatives and updated this information only for BFT: BFT
rebuilding, domestic allocations, quota adjustment procedures, measures
to reduce dead discards of BFT, General category effort controls for
the 1999 fishing season, and data collection requirements.
On March 4, 1999, NMFS announced an additional public hearing and
further extended the comment period on the FMPs and proposed rules from
March 4 to March 12, 1999 (64 FR 10438). All comments received by March
12, 1999, whether specifically directed to any of the documents or to
the proposed rule and its supplement, were considered in the decisions
on the final documents and the final rule.
Information regarding the management of HMS under the draft HMS FMP
and Draft Amendment 1 to the Atlantic Billfish FMP was provided in the
preamble to the proposed regulations to implement those FMPs and in the
preamble to the supplemental rule to implement the HMS FMP addendum and
is not repeated here. Additional background information can be found in
the FMPs and supporting documents available from NMFS (see ADDRESSES).
Although the codified regulatory text contained in the supplemental
proposed rule to implement the HMS FMP addendum has been incorporated
into this final rule, the uncodified 1999 bluefin tuna landings quota
specifications proposed in that same document will be published
elsewhere in this Federal Register issue.
NMFS received approximately 5,000 comments via letter, postcard,
facsimile, and electronic mail. Many individuals and groups provided
verbal and written comments at public hearings. Those comments are
summarized here followed by NMFS' responses thereto.
Comments and Responses
General
Comment 1: Quota management is inappropriate for a recreational
fishery. I do not support a recreational closure of any fishery.
Response: Recreational landings of bluefin tuna and blue and white
marlin are subject to quotas or caps due to international management
recommendations. In addition, domestic regulations prohibit retention
of certain species by all user groups, including a subset of shark
species and spearfish, because these species are either particularly
vulnerable or little is known about their status. In the final HMS FMP
and Billfish FMP amendment, NMFS implements measures that are designed
to increase flexibility and allow continued participation in the
recreational fishery despite the caps or quotas. For example, the
Billfish FMP amendment manages the recreational fishery primarily
through the use of minimum sizes, rather than bag limits or seasonal
closures.
Comment 2: Our coastal and offshore resources need more protection
from
[[Page 29091]]
foreign fishing fleets; NMFS is disadvantaging U.S. fishermen; NMFS
should not implement all these domestic measures because foreign fleets
will catch the fish instead.
Response: There is no foreign fishing for HMS within the U.S. EEZ.
Atlantic-wide, NMFS works through the ICCAT process as well as
bilateral efforts (Canada, Mexico) to address issues of common concern
in the management of HMS.
Comment 3: NMFS has to implement the strongest possible domestic
measures for protecting these fine species [HMS] as a safeguard against
inaction at the international level.
Response: NMFS agrees that strong domestic measures must be taken
to rebuild and maintain HMS. However, for most HMS, international
cooperation is essential to a successful management program. The final
HMS FMP and Billfish FMP amendment establish a foundation for the
development of international rebuilding programs for overfished HMS.
Comment 4: These regulations propose to impose a host of
restrictions and controls on recreational fishing that are unnecessary
and burdensome, and do little or nothing to accomplish the basic goal
of rebuilding HMS, including billfish fisheries that are overfished.
Response: NMFS disagrees. Rebuilding HMS requires improved
monitoring and accounting for all sources of mortality, including
recreational fisheries. In addition, NMFS is required under Magnuson-
Stevens Act and ATCA to provide comparable monitoring of all fisheries.
The final HMS FMP and billfish FMP Amendment provide for new measures
that will enhance monitoring and knowledge of all HMS fisheries,
including recreational fisheries, and that implement controls on
recreational landings under international agreement, such as the limit
on school bluefin tuna and on marlin landings. Nevertheless, the final
FMP and amendment reflect public comment on recreational restrictions,
as some measures have been reduced and/or made voluntary in nature,
such as participation in workshops and in observer programs.
Comment 5: The regulations should specify that U.S. citizens, while
fishing on foreign vessels in foreign waters, may comply with the
regulations for that foreign venue, even if they are less restrictive
than U.S. regulations, and must comply if they are more restrictive.
Response: National standard (NS) 3 requires ``To the extent
practicable, an individual stock of fish shall be managed as a unit
throughout its range, and interrelated stocks of fish shall be managed
as a unit or in close coordination.'' Previous Atlantic billfish
regulations, implemented solely under the authority of the Magnuson
Act, restricted fishing-related activities (possession and retention,
size limits, gear limitations and incidental catch restrictions) within
the jurisdictional limits of the U.S. EEZ. U.S.-flagged commercial and
recreational vessels operating exclusively outside the U.S. EEZ were
not affected by these restrictions, although the sale, purchase or
barter of Atlantic billfish harvested from the management unit (i.e.,
for blue and white marlin, the Atlantic Ocean north of 5o N.
latitude) was prohibited. However, implementation of Atlantic blue
marlin and white marlin regulations under both the Magnuson-Stevens Act
and ATCA will make these regulations applicable to all U.S. citizens
and U.S.-flagged commercial and recreational vessels, regardless where
fishing. NMFS disagrees that such application of the Atlantic billfish
regulations is unfair and too restrictive on U.S. fishermen. The
regulations will be much more effective if they are extended under the
authority of ATCA to cover the operational area of U.S.-flagged vessels
in the Atlantic Ocean, and the range of the impacted stock. The
rebuilding of Atlantic billfish stocks requires reductions in mortality
Atlantic-wide, necessitating management measures for Atlantic billfish
throughout their range.
Comment 6: The language concerning management through international
measures is incompatible with the language of the Magnuson-Stevens Act.
It is clear that the United States is to promote optimum yield (OY),
rather than become involved with the details of foreign management
measures.
Response: NMFS supports the promotion of OY in all fisheries,
including OY as part of a rebuilding plan for overfished species. For
most HMS, international cooperation is essential to a successful
management program. In addition to continued bilateral efforts, the
final HMS FMP and billfish FMP amendment provide the foundation for the
development of international rebuilding programs for overfished HMS.
Comment 7: There should be an interim final rule for the public to
review and comment upon the final measures before the rule becomes
effective.
Response: NMFS disagrees. There was an extensive comment period on
the draft HMS FMP and draft billfish FMP amendment, the bluefin tuna
addendum to the HMS FMP, as well as the proposed rule and supplement to
the proposed rule. Nearly 5,000 comments were received, along with
record attendance at the 27 public hearings, and AP meetings to address
public comment. It is clear that the public was fully aware of and took
advantage of the opportunity to comment on these proposals. The final
HMS FMP and billfish FMP amendment clearly demonstrate that, where
possible, NMFS has effected changes that meet the same objectives but
with less impact on the affected communities. Finally, these documents
provide a framework for the continued management of these species, and
delays will only hinder progress.
Comment 8: Framework provisions should be taken out of the FMP, as
they are not understood by the public, and there is no oversight on the
framework procedures used by NMFS.
Response: NMFS disagrees. The purpose of the framework process is
to facilitate timely management of HMS. Measures proposed under the
framework process will be subject to public comment and at least one
public hearing, and if appropriate, an AP meeting as well. NMFS has
clarified the objectives to which these framework provisions apply, and
somewhat narrowed the range of framework measures from the proposed
framework.
Comment 9: Commercial interests are favored over good scientific
management of the fish, and over interests of the long-standing
recreational fishery.
Response: NMFS disagrees. The final measures in the HMS FMP and
billfish amendment are based on the best scientific information
available and include closure of the commercial fishery for sharks,
swordfish and pelagic longline fishing of BAYS to all but those active
in the fishery. The final shark measures include substantial reductions
in commercial quotas and an expanded list of prohibited species.
Bluefin tuna are subject to an international rebuilding program, and a
foundation is established for the development of an international
rebuilding program for swordfish, bigeye tuna, and billfish at future
ICCAT meetings. Recreational measures have been honed to focus on those
that are most effective while still meeting management goals.
Comment 10: The HMS FMP is extremely long and complicated covering
many species. It would have been better to have separate hearings on
each species rather than all HMS. Timing and location of public
hearings need more input from public sector.
Response: The development of the HMS FMP has greatly benefitted
from the holistic approach to the management of swordfish, sharks, and
[[Page 29092]]
tunas. Many of these species are harvested by the same commercial and
recreational user groups, and an integrated FMP affords an improved
management strategy for all species. The billfish FMP remains separate,
however, due to the exclusively recreational nature of this fishery.
Nevertheless, NMFS has and will continue to hold joint AP meetings on
issues of common concern, and draw important parallels between
management of billfish and other HMS. Location and timing of public
hearings are developed in consultation with AP members, the location of
current participants, and within the schedule required to satisfy a
variety of legal constraints and logistic limitations.
Comment 11: NMFS has not implemented programs to provide reliable,
real time monitoring of recreational catch by private anglers as
required by law.
Response: NMFS disagrees. The HMS FMP and billfish FMP amendment
add to existing recreational data reporting requirements, including
expanded permitting and logbook requirements, tournament registration
and reporting, and an observer program. Recreational catch and harvest
of HMS and billfish are also monitored by the Marine Recreational
Fisheries Statistics Survey (MRFSS), the Large Pelagic Survey,
mandatory self-reporting of all bluefin tuna landed, and individual
state recreational fisheries surveys. In addition, the framework
measures in the FMP and amendment allow for expanded recreational
monitoring. NMFS will continue to work with the APs and affected public
to expand and develop these efforts to improve recreational monitoring.
Comment 12: The HMS FMP is biased against the recreational fishing
industry and favors commercial fisheries. The HMS FMP does not address
the destructive nature of longline fishing. The FMP is overly
burdensome for the collection of recreational fisheries data.
Response: NMFS disagrees. The HMS FMP is focused on reducing
fishing mortality for overfished species of sharks, tunas, and
swordfish. The HMS FMP also addresses those resources that are
currently considered to be fully fished. The final measures in the HMS
FMP include closure of the commercial fishery for sharks, swordfish and
pelagic longline fishing of BAYS to all but those active in the
fishery. The final shark measures include substantial reductions in
commercial quotas and an expanded list of prohibited species. Bluefin
tuna are subject to an international rebuilding program, and a
foundation is established for the development of an international
rebuilding program for swordfish, bigeye tuna, and billfish at future
ICCAT meetings. The final HMS FMP and Billfish FMP Amendment provide
for new measures that will enhance monitoring and reporting in all HMS
fisheries, both commercial and recreational. The final actions reflect
public comment on recreational restrictions, as some measures have been
reduced and/or made voluntary in nature, such as participation in
workshops and in observer programs.
Comment 13: Recreational landing estimates for pelagic species are
generated from the MRFSS database and these estimates of landings are
not accurate.
Response: NMFS disagrees. The MRFSS data program is designed to
estimate recreational catch and effort over broad areas. While the
program admittedly does not capture information on pulse fisheries or
rare event fisheries, such as billfish and swordfish, the generated
estimates and their proportional standard error estimates give an
indication of their statistical validity. The Large Pelagic Survey
(LPS) is designed to better capture catch and effort data on HMS. NMFS
plans to continue this survey and consider expanding the program to
additional geographic areas.
Comment 14: Except for billfish, no basis exists for how the agency
allocates catch among user groups.
Response: NMFS disagrees. NMFS bases all allocation of fishing
privileges on NS 4, which requires all allocations, should they be
necessary, to be fair and equitable to all such fishermen, be
reasonably calculated to promote conservation, and carried out in such
manner that no particular individual, corporation, or other entity
acquires an excessive share of such privileges.
Comment 15: NMFS penalizes fishermen who provide data by using
those data to place restrictions on the fishermen.
Response: NMFS disagrees. NS 1 calls for the prevention of
overfishing and NS 2 states that management measures will use the best
scientific information available. Data are used to monitor the fishery
to prevent overfishing and to support management measures to ensure the
future health of the resource. If a fishery is judged to be overfished,
all sources of information will be assessed to address the problem.
Should fishermen not provide information, or provide inaccurate
information, the management measures developed by NMFS to remedy the
overfishing could be more burdensome than necessary on the fishing
sectors depending on the fishery resource.
Comment 16: NMFS should adopt a more precautionary fishing
mortality threshold that is lower than the fishing mortality that will
result in maximum sustainable yield (MSY).
Response: NMFS agrees and has adopted 0.75FMSY, which is
consistent with precautionary technical guidance for NS 1 established
by NMFS scientists.
Atlantic Billfish
Comment 1: The selected alternatives do not reflect any of the
advice given by the Billfish AP.
Response: NMFS disagrees. The advice from the Billfish AP was
noted under each action in the draft FMP amendment. The agency's
rationale for selecting preferred alternatives, including those that
were not supported by the Billfish AP was also included in the plan.
The Billfish AP was established under section 302(g)(4) of the
Magnuson-Stevens Act, ``to assist in the collection and evaluation of
information relevant to the development of any fishery management plan
or amendment.'' However, it is important to note that decisions and
recommendations made by the AP are advisory in nature. Many of the
final actions are based on advice from the APs.
Comment 2: NMFS violated NS 1 of the Magnuson-Stevens Act and NEPA
by not including a viable rebuilding plan for blue and white marlin in
the draft FMP amendment.
Response: NMFS disagrees. The draft FMP amendment contained
elemental components for rebuilding on an Atlantic-wide basis. However,
the final amendment more clearly defines the relationship between
domestic management actions and international rebuilding alternatives.
Domestic measures ensure U.S. compliance with the 1997 ICCAT
recommendation. The final FMP includes final actions to establish the
foundation for the development of an international 10-year rebuilding
plan. NMFS will work with ICCAT member nations to adopt a rebuilding
program that meets the standards of the Magnuson-Stevens Act and the
NSGs, including an appropriate rebuilding time period, targets, limits,
and explicit interim milestones for recovery, expressed in terms of
measurable improvements of overfished stocks. The final FMP amendment
lists specific management measures that could be a part of the
international strategy.
Comment 3: NMFS should scrap the draft Atlantic billfish FMP
amendment and develop a new document focusing on rebuilding overfished
billfish stocks
[[Page 29093]]
by reducing bycatch in the U.S. pelagic longline fishery.
Response: The multidimensional focus of the draft FMP amendment
addressed the 1997 ICCAT recommendation and the U.S. mandates under the
Magnuson-Stevens Act and ATCA. The actions taken in the final FMP
amendment are critical steps in the ICCAT process, formulating the
basis for international regulations that will rebuild overfished
billfish stocks. Rebuilding overfished Atlantic billfish stocks is not
possible solely by reducing or eliminating bycatch in the U.S. pelagic
longline fishery due to the small percentage of mortality caused by
U.S. vessels. The HMS FMP will be the primary tool for designing,
analyzing and implementing management measures to control bycatch in
association with all HMS commercial fisheries, including Atlantic
billfish.
Comment 4: The management measures included in the Billfish
framework provisions should be dropped because they would allow NMFS to
implement these regulatory actions without input from the Billfish
Advisory Panel or from the public.
Response: NMFS disagrees. Both framework adjustment measures and
proposed FMP amendments must go through extensive public and analytical
review, including development and review by the APs, if appropriate.
Comment 5: Actions taken by the United States alone cannot
sufficiently reduce billfish mortality levels Atlantic-wide to rebuild
overfished billfish stocks. Therefore, management actions taken by
NMFS, without the support and adoption by ICCAT, are a waste of time
and money.
Response: NMFS disagrees. While unilateral management action by
the United States cannot rebuild overfished billfish stocks, the United
States has been a leader in conservation of Atlantic billfish, and has
taken actions (e.g., the 1988 Atlantic billfish FMP) to show our
willingness to take the critical steps necessary to conserve these
stocks. This fact has been a primary negotiation tool at ICCAT, and it
is questionable whether the recent ICCAT actions (i.e., the 1997 and
1998 ICCAT recommendations) could have been possible without these
efforts. Therefore, the final actions and framework provisions in the
FMP amendment and HMS FMP will form the foundation for the development
of rebuilding plans following the 2000 (marlins) and 2001 (sailfish)
assessments.
Comment 6: NMFS received comments supporting and opposing a 10-year
recovery period for blue marlin and white marlin. Comments against the
10-year recovery period include: the recovery time period of 10 years
is too long; a shorter time frame could be justified based on the life
history characteristics of Atlantic blue and white marlin; the recovery
to biomass rebuilding target within 10 years is impossible without
international cooperation by Atlantic commercial fishing operations;
and rebuild overfished populations as quickly as possible, not in the
maximum period allowed by law.
Response: NMFS maintains the recovery period of 10 years in the
final FMP amendment. Life history is not the sole consideration for
determining recovery time period alternatives. The Magnuson-Stevens Act
specifies that a recovery period be as short as possible, taking into
account the status and biology of any overfished stocks of fish, as
well as the needs of fishing communities, recommendations by
international organizations in which the United States participates
(e.g., ICCAT), and interactions of the overfished stock of fish with
the marine ecosystem. The final guidelines for NS 1 indicate that these
factors may be used to adjust the rebuilding period up to 10 years.
NMFS proposed a 10-year recovery period to minimize negative impacts on
recreational and commercial communities/entities. Agreements at ICCAT
may dictate that rebuilding of Atlantic billfish may take up to 10
years, indeed even longer.
Comment 7: The model used to generate the recovery periods for blue
marlin and white marlin may provide overly optimistic projections of
the time required for rebuilding.
Response: The non-equilibrium stock-production model used to
generate recovery periods was based on the best available science at
the time the draft FMP amendment was developed. NMFS maintains these
results in the final FMP amendment, but will review the applicability
of this model following the 2000 (marlins) and 2001 (sailfish) Standing
Committee for Research and Statistics (SCRS) stock assessments.
Subsequently, modifications may be warranted in the recovery period or
other components of the rebuilding plan.
Comment 8: The minimum stock size thresholds (MSSTs) selected for
Atlantic billfish in the draft FMP amendment are too low and should be
more precautionary.
Response: NMFS agrees that the MSSTs selected for Atlantic
billfish in the draft FMP amendment should be more precautionary. The
formulation of MSST for Atlantic billfish using (1-M)BMSY,
where M is the instantaneous natural mortality rate, is a proxy for the
minimum stock size at which rebuilding to the maximum sustainable yield
level would be expected to occur within 10 years if the stock or stock
complex were exploited at the maximum fishing mortality threshold.
Quantitative data necessary to calculate natural mortality rates are
not available; however, reasonable values can be estimated based on
life history parameters and age structure of the population. Estimates
of M range from 0.05 to 0.15 for Atlantic blue marlin, from 0.1 to 0.2
for Atlantic white marlin, and from 0.2 to 0.3 for western Atlantic
sailfish. The draft FMP utilized values near the lower-end of the
precautionary range; however, based on further analyses, the MSST
values selected for the final FMP amendment for Atlantic blue and white
marlin and sailfish are 0.95BMSY, 0.85BMSY, and
0.75BMSY, respectively.
Comment 9: NMFS received comments both supporting and opposing the
extension of the management unit for Atlantic blue and white marlin to
the entire Atlantic Ocean, and implementation of regulatory actions
under ATCA. These comments include the following: the extension is an
important step closing a loophole in the regulations that allows
Atlantic billfish to be caught and sold south of 5o N; this
measure unfairly restricts U.S. recreational anglers fishing in foreign
waters, especially when fishing in foreign tournaments; U.S. commercial
vessels operating under foreign contracts or in countries where all
fish caught must be landed will be adversely affected; enforcement of
these regulations would be impractical and costly for the relatively
few U.S.-flagged commercial and recreational vessels operating in
foreign waters that would be impacted by this proposed management
measure.
Response: NMFS agrees with comments supporting the proposed
preferred alternative to extend the management unit for Atlantic blue
and white marlin to the entire Atlantic Ocean, and implementation of
regulatory actions under ATCA. Expansion of the regulatory authority is
supported by NS 3 that requires ``To the extent practicable, an
individual stock of fish shall be managed as a unit throughout its
range, and interrelated stocks of fish shall be managed as a unit or in
close coordination.'' Implementation of Atlantic billfish regulations
under both the Magnuson-Stevens Act and ATCA will make these
regulations applicable to all U.S. citizens and U.S.-flagged commercial
and recreational vessels, regardless of where they are fishing. NMFS
disagrees
[[Page 29094]]
that such application of the Atlantic billfish regulations is unfair
and too restrictive on U.S. fishermen. Regulations will be much more
effective if they are extended under the authority of ATCA to cover the
operational area of U.S.-flagged vessels in the Atlantic Ocean.
Commercial vessels fishing under lease arrangements in other countries
may need to apply for Exempted Fishing Permits (EFPs) in order for the
agency to collect necessary management information, and to prevent
violations of U.S. law. Since the same vessels potentially catching
billfish are also operating under other Atlantic-wide fishing
prohibitions (north and south Atlantic swordfish) that require
enforcement and monitoring, problems with additional enforcement of
billfish regulations impacting U.S. commercial pelagic longline vessels
operating in the Atlantic are expected to be minimal.
Comment 10: NMFS should implement time/area closures specifically
to reduce bycatch of Atlantic billfish.
Response: NMFS disagrees. Based on the currently available data,
NMFS does not think implementing large closed areas with the sole
objective of reducing billfish bycatch is practicable because of the
minimal effect on billfish and the significant social and economic
impacts on pelagic longline fishermen and their communities. However,
NMFS is preparing additional analyses to identify large areas to
protect small swordfish and will consider the impacts of these closures
on billfish stocks.
Use of Best Available Science in Billfish Management
Comment 1: NMFS violates NS 2 by ignoring or inappropriately
applying available scientific information in the draft FMP amendment.
Response: NMFS disagrees. The draft FMP amendment used the most
recent data available. Scientific information and data sources used in
formulation of the plan include the MRFSS, Large Pelagic Survey,
Recreational Billfish Survey, Cooperative Tagging Center, SCRS stock
assessments and reports, NMFS research/reports, as well as research
funded by the agency and independent research, including publications
in scientific journals, preliminary reports on ongoing research, and
personal communication with experts in the field. NMFS has developed a
comprehensive research and monitoring plan (October, 1998) to support
the conservation and management of Atlantic HMS as required by
971(i)(b) of ATCA. The objective of this comprehensive research and
monitoring plan is to ensure that NMFS science is of the highest
quality and that it advances the agency's ability to make sound
management decisions.
Comment 2: NMFS should limit regulatory changes to recommendations
by committees comprised of professional scientists, not politicians, in
order to reflect the best available science.
Response: NMFS disagrees. The Magnuson-Stevens Act, ATCA, and
ICCAT recognize the highly migratory nature of these international
fisheries, which necessitates an interdisciplinary approach to
fisheries management. The APs play an important role in advising NMFS
not just on science, but on practical constraints, as well as social
and economic impacts of various management alternatives.
Fair and Equitable Allocation of Restrictions/Benefits Among Billfish
Fishery Sectors
Comment 1: NMFS is apparently relying only on reductions in U.S.
recreational landings to rebuild overfished billfish stocks, which is
inconsistent with NS 4. The recreational billfish community is
responsible for only a small portion of Atlantic-wide mortalities and
has a record of voluntary conservation as evidenced by the high
percentage of released billfish, yet the majority of management
measures included by NMFS in the draft Atlantic billfish FMP amendment
are unfairly focused on recreational anglers.
Response: NMFS agrees that the recreational billfish community is
responsible for only a small portion of Atlantic-wide mortalities and
commends their voluntary conservation. However, NMFS disagrees that the
management measures included in the draft Atlantic billfish FMP
amendment were unfairly focused on recreational anglers. The draft FMP
amendment specifically stated that the level of reductions in landings
required to rebuild overfished billfish stocks will necessitate
international cooperation; reduction or even elimination of all sources
of U.S. billfish mortality alone is insufficient to achieve rebuilding
as the United States is responsible for approximately 5 percent of the
Atlantic-wide mortalities of marlin. Reductions of 2,443 mt from 1996
total Atlantic landings will be required to rebuild stocks of blue
marlin and 638 mt for white marlin; the total U.S. reported mortality
of Atlantic marlin during 1996 was 302.3 mt. The final Atlantic
Billfish FMP Amendment includes increases in minimum size limits in
order to reduce landings; the 25-percent reduction in blue and white
marlin landings will result in reductions of U.S. recreational landings
of approximately 21,000 pounds (9.52 mt); however, on a larger scale,
this recommendation will result in nearly a 3.4 million decrease in
Atlantic-wide marlin landings from 1996 levels by other ICCAT member
countries. The 1997 ICCAT recommendation also requires improvement in
monitoring, data collection and reporting in all Atlantic billfish
fisheries.
Comment 2: Continuing the prohibition on commercial landings of
Atlantic billfish, while allowing recreational fishermen to land
billfish, is unfair and discriminatory.
Response: NMFS disagrees. A fundamental element of the 1988
Atlantic billfish FMP was the prohibition of possession and sale of
commercially caught billfish within the U.S. EEZ. Allowing recreational
fishermen to land billfish is consistent with traditional usage of this
fishery. A major objective of the FMP amendment is to develop a
rebuilding plan for overfished billfish stocks, and although unilateral
actions by the United States will not rebuild these highly migratory
species, additional mortalities experienced on these stocks by allowing
U.S. commercial harvest would run counter to the objectives of NS 1 and
the FMP amendment. The Billfish FMP amendment retains the prohibition
of possession and sale of commercially-caught billfish.
Community Impacts Resulting From Billfish Measures
Comment 1: Destin, FL, Port Aransas, TX, and other coastal towns
were not included in the community analysis of the draft Atlantic
billfish FMP amendment. The Atlantic billfish recreational fishery is
an important component of these locations, therefore, these areas
should be included in any analysis of economic and community impacts of
management restrictions.
Response: NMFS agrees that some towns where the Atlantic billfish
recreational fishery is an important component were not included in the
community analysis of the draft Atlantic billfish FMP amendment.
However, the billfish community profiles included in the draft FMP
amendment are not intended as an exhaustive list of where recreational
billfish angling is an important component of the local economy and
culture, rather they provide a broad perspective on representative
areas. Consistent with NS8, the final FMP amendment first identifies
and describes representative Atlantic billfish communities (on the
basis of geographic location, gear-type
[[Page 29095]]
and operational framework of the various components of the fishery) and
then assesses their differing nature and the magnitude of the likely
effects of this FMP amendment. The final FMP amendment also summarizes
anticipated social impacts resulting from the implementation of the
Atlantic billfish FMP amendment on a broader scale, based on the
comments received during the comment period for the draft FMP amendment
and proposed rule. Public hearings for the proposed rule to implement
the draft Atlantic billfish FMP amendment were held in a wide range of
locations (including Panama City, near Destin and Ft. Walton and Port
Aransas) to collect comments from numerous billfish angling
communities.
Comment 2: Destin, Florida has changed an important billfish
tournament to an all-release format based on the economic threat of a
potential zero bag limit included in the proposed rule. If sponsorships
and participation in the tournament decline because of the change to
catch-and-release strategy, the local economy will be negatively
impacted, as will charities that have historically received financial
support from this event.
Response: NMFS evaluated thousands of comments on the issue of
economic impacts of an adjustable bag limit and other measures included
in the draft plan, some of which merited changes in the final FMP
amendment. While the intent of the draft FMP amendment was not to cause
severe impacts to communities, the change to a ``no-kill'' tournament
format should be applauded and certainly is consistent with the
precautionary management strategy of the 1996 Magnuson-Stevens Act. It
should be noted that many other tournaments have gone to an all-release
format without a reduction in participation. NMFS restates advice of
the 1988 Atlantic Billfish FMP, encouraging all tournaments to adopt a
catch-and-release philosophy.
Billfish Harvest Controls and Retention Limits
Comment 1: NMFS should require catch-and-release only of Atlantic
billfish by all recreational anglers. Allowing recreational anglers to
land billfish is inconsistent and counterproductive with the objectives
of the FMP amendment, and undermines the goals of the FMP. Closing the
recreational Atlantic billfish fishery, except to catch-and-release,
supports the conservation ethic of this recreational user group; will
maximize net economic benefits to the nation by managing the fisheries
for long term OY; is consistent with the ICCAT recommendation; and
meets the critical U.S. leadership goal to promote international
conservation.
Response: NMFS disagrees. Most recreationally caught billfish are
already released, either voluntarily or in compliance with minimum size
limits. However, some anglers prefer to land some billfish. Allowing
those few fish to be landed is consistent with ICCAT conservation
recommendations and recognizes the multi-faceted objectives of domestic
and international management of the billfish fishery.
Comment 2: NMFS should not prohibit the use of multiple hooks in
the Atlantic billfish recreational fishery. Using the precautionary
approach as a rationale to support this measure is contrary to the
mission statement of NMFS as there is absolutely no science-based
justification for this action. Limiting the number of hooks in a lure
or bait is an unnecessary regulation because this will not enhance
post-release survival rates; and will have no direct benefit to
recovery of Atlantic billfish resources. This measure would
significantly reduce angler hook-up rates, as well as have a negative
economic impact on anglers by requiring purchases of new equipment and
on tackle manufacturers.
Response: NMFS has not included this proposed action in the final
rule. This measure was developed as a result of discussions with the
Billfish AP, which includes representatives from the charter boat
industry, sport fishing groups, and Fishery Management Council
appointees familiar with the recreational billfish industry. The
objective of this alternative was to reduce the probability of injury
to gills, throat and eyes, thereby decreasing release mortality rates.
After NMFS and the Billfish AP reviewed public comments on this issue,
the majority of panel members rescinded their support of this measure.
Comment 3: NMFS received several different comments regarding the
use of dehooking devices, including: NMFS should require the use of
dehooking devices by both recreational and commercial fishermen
targeting billfish to reduce post-release mortality; NMFS should not
mandate but promote the use of dehooking devices by both recreational
and commercial fishermen; and NMFS should only allow recreational
anglers to utilize hook-removal devices, but still require commercial
fishermen to cut their gear to release a billfish because a dehooking
device can not practically be used to release a billfish caught on
pelagic longline gear, and will result in an increase in bycatch
mortality as fishermen use this ``loop-hole'' try to save hooks; and
NMFS should allow the removal of the hook by any means, provided that
it can be accomplished safely and without increased damage to the
hooked fish.
Response: The draft FMP amendment preferred alternative was to
``allow the removal of the hook from recreational and commercially
caught billfish.'' NMFS maintains this action in the final FMP
amendment but does not mandate the use of dehooking devices. Their use
as a mechanism to reduce post-release mortality is allowed but not
required. There were no conclusive, peer-reviewed scientific results on
which to base such a mandate at the time this FMP amendment was
developed. However, commercially available dehooking devices have been
effective in other commercial and recreational fisheries and have been
successfully employed on removing hooks from other large fish. NMFS
will include information on such dehooking devices in its pelagic
longline workshops, as well as in its educational outreach programs.
The final rule implementing the FMP amendment preserves the requirement
that billfish that cannot be legally retained must remain in the water
at all times, but no longer requires that the line be cut. Instead, the
final rule specifies that the hook may be removed, provided that the
method of hook removal used does not harm the fish, and may enhance its
survival. Proper handling techniques to remove a hooked billfish from
commercial or recreational gear will also be included in the pelagic
longline workshops, in order to enhance the effectiveness of this final
action and minimize the mortality of all releases.
Comment 4: It is impossible to determine the size of an Atlantic
billfish without removing the fish from the water.
Response: NMFS disagrees. The 1988 Atlantic Billfish FMP noted
similar comments, but cited advice from the SAFMC Billfish Advisory
Panel which stated experienced billfish anglers and captains would have
little difficulty in estimating the size of these fish quite
accurately. The Plan's intent is ``to encourage the release of all
billfishes not needed for tournament competition or of trophy fish, and
since tournament anglers generally have no difficulty estimating fish
size and trophy fish would be substantially in excess of the minimum
sizes, this is not expected to be a major problem'' (SAFMC, 1988). The
final rule implementing the FMP amendment preserves the requirement
that billfish that cannot be legally retained must remain in the water
at all
[[Page 29096]]
times. NMFS continues to support this regulation and will use its
educational outreach programs for recreational fishermen to instruct
them on the proper handling and release of billfish to maximize their
survivability.
Comment 5: The recreational landings caps for Atlantic blue and
white marlin are unfair and unnecessary. If adopted, this proposal
would be a significant U.S. policy change for billfish management in
the United States from one that controls mortality through size limits
and the encouragement of catch and release, to a quota management
system. Imposing quotas in recreational fisheries does not work. They
are highly disruptive to the orderly conduct of the fishery and weaken
confidence in the entire management system.
Response: These measures are necessary because blue marlin and
white marlin are overfished. Furthermore, the United States is
compelled to comply with ICCAT recommendations as required under ATCA,
therefore the United States, and all other ICCAT member countries/
entities, must reduce landings (i.e., fish brought back to the dock vs.
catch which is taken by fishing gear at sea) by at least 25 percent
from 1996 levels. The true impact of this recommendation can only be
evaluated in terms of Atlantic-wide reductions in marlin landings. The
25-percent reduction in blue and white marlin landings will result in
reductions of U.S. recreational landings of approximately 21,000 lb
(9.52 mt reductions in marlin landings); however, on a larger scale,
this recommendation will result in nearly a 3.4 million pound decrease
(over 1,400 mt reductions in marlin landings) in Atlantic-wide marlin
landings from 1996 levels by other ICCAT member countries. The final
FMP amendment utilizes a size-based strategy to reduce U.S.
recreational landings to required levels.
Comment 6: NMFS received comments supporting and opposing the
recreational retention limit of one Atlantic billfish per vessel per
trip. Comments that support the recreational retention limit include:
NMFS should implement the proposed recreational retention limit for
billfish; the limit of one billfish is appropriate in that it will
result in reduced landings of marlin without creating a hardship for
the charter boat industry since few billfish are retained by anglers;
and a limit of one billfish would be consistent with Florida state
regulations. Comments against this measure include: NMFS should
eliminate the recreational retention limit of one Atlantic billfish per
vessel per trip; given the rare nature of billfish catches, and even
rarer incidences of billfish landings, a limit of one billfish per
vessel per trip would be ineffective in reducing landings by any
significant amount; and this measure would have significant negative
economic impacts on tournaments that have a ``grand slam'' category
(i.e., prize for landing a blue marlin, white marlin and sailfish).
Response: Retention of more than one billfish during a
recreational trip is relatively rare, but the recreational retention
limit was included in the draft FMP amendment as part of a
precautionary management strategy, and to ensure compliance with
landing caps established by the 1997 ICCAT recommendation. In the
interest of responding to public comment on the impact of implementing
recreational retention limits in the Atlantic billfish fishery, and in
consideration of the ability of NMFS to manage landings (mortality)
with size limits that can be adjusted through interim or proposed and
final rule measures, the limit is rejected in the final Atlantic
billfish FMP amendment. Reliance on size limits alone to control
landings simplifies regulatory constraints and effectively accomplishes
the same goal.
Comment 7: NMFS should remove the provision providing the AA the
authority to adjust the billfish recreational retention limit with 3-
day notice, including to a zero bag limit. Imposing an adjustable limit
for billfish is excessive and unnecessary regulation of this
recreational fishery. Contrary to the Magnuson-Stevens Act and
Regulatory Flexibility Act requiring the selection of the least
burdensome alternative, the proposed measure imposes the greatest
economic uncertainty in the billfish fishery. Tournaments could be
canceled, or at least experience significant reduction in
participation, solely on the possibility of a prohibition of landing
any fish. NMFS could manage this fishery through a minimum size limit
in such a way that landings are reduced by at least 25 percent, without
closing the fishery.
Response: In consideration of the ability of NMFS to manage
landings (mortality) with size limits that can be adjusted through
interim or proposed and final rule measures, the provision providing
the AA additional explicit authority to adjust the retention limit to
zero is in the final Atlantic billfish FMP amendment. However, this
approach may be reconsidered in the future if management by minimum
size limits is insufficiently successful.
Comment 8: NMFS should prohibit any billfish from being imported
into the United States, regardless of where the billfish are caught
(i.e., Pacific or Atlantic Ocean).
Response: NMFS agrees that consideration of prohibiting any
billfish imports may be warranted in the future.
Comment 9: NMFS received comments for and against the proposed
preferred minimum size limits, including: the Atlantic billfish size
limits in the draft FMP amendment should be implemented; the Atlantic
marlin size limits proposed by NMFS are excessive, in that they will
reduce landings more than necessary to comply with the 1997 ICCAT
recommendation; and the minimum size limits should be in round numbers
that are easier to remember, for example 100 inches (254 cm) lower jaw
fork length (LJFL) for blue marlin rather than 99 inches (251 cm) LJFL.
Response: NMFS agrees with comments supporting the proposed
preferred minimum size limits. The increase in minimum sizes for
Atlantic blue marlin to 99 inches LJFL, 66 inches (168 cm)LJFL for
Atlantic white marlin and 63 inches (160 cm) LJFL for sailfish is the
final management action because it would reduce mortality rates by at
least 25 percent for each of these overfished species at minimal short-
term economic expense with long-term economic benefits.
Comment 10: NMFS received comments for and against the proposed
preferred alternative to prohibit the retention of longbill spearfish.
Comments against this measure include: lack of scientific information
on this species is not an adequate reason to prohibit its retention;
this measure would only hinder any research efforts; retention should
be allowed until further data are made available that indicate this
species is overfished; and as an alternative measure, NMFS should
establish a toll free number for fishermen to report longbill spearfish
landings and use this information for scientific purposes.
Response: The absence of adequate scientific information is not a
reason for failing to take appropriate conservation and management
measures. The precautionary approach asserts ``states should apply the
precautionary approach widely to conservation, management, and
exploitation of living aquatic resources in order to protect them and
preserve their aquatic environment (1995 Food and Agriculture
Organization (FAO) International Code of Conduct).'' Longbill spearfish
are rarely encountered by commercial fishermen or recreational anglers,
and are generally not included as a target species in billfish
tournaments. Therefore, this
[[Page 29097]]
measure should have only minimal negative social or economic impacts.
The status of spearfish stocks is unknown, but the rare nature of this
species necessitates a cautious management strategy to avoid any
potential negative impacts to the stock.
Billfish Monitoring, Permitting and Reporting
Comment 1: NMFS should expand the use of sampling protocols
utilized in the Gulf of Mexico to other Atlantic coastal areas to
improve monitoring of recreational billfish landings.
Response: NMFS agrees. The 1997 ICCAT recommendation for
improvement in monitoring and data collection, as well as the
establishment of landing caps for Atlantic blue and white marlin, has
focused attention on the need for improvement in sampling and
monitoring programs to ensure that the United States is in compliance
with international agreements. The Gulf of Mexico program was
instrumental in providing a historical framework for developing the
notification and reporting requirements for billfish tournaments, but
expansion of this program to other areas may not provide the sampling
levels necessary to ensure compliance with the ICCAT recommendation.
Additional monitoring and reporting requirements have been added to the
FMP amendment, including logbooks, permits and a voluntary observer
program for charter-headboat vessels, and mandatory tournament
registration.
Comment 2: NMFS received several different comments on the proposed
outreach programs, including: the proposed outreach programs for
recreational billfish anglers are a waste of time and federal
resources, recreational anglers already practice conservation in
releasing over 90 percent of their catch; the proposed outreach
programs will be a valuable addition to the FMP amendment depending on
the level of cooperation with state and other federal agencies, fishing
constituent groups, etc.; and, attendance at workshops and seminars
held as part of this measure should be mandatory.
Response: NMFS disagrees that the proposed outreach programs for
billfish anglers are a waste of time. Although recreational anglers
already release approximately 90 percent of their catch and NMFS has
established a catch-and-release fishery management program in the final
FMP amendment, release of live fish does not guarantee their survival.
Outreach programs established in this amendment will provide proper
handling, tagging, measuring and release techniques in order minimize
the mortality of all live releases, a proactive approach to meeting
several objectives of this FMP amendment. Attendance at workshops by
charter boat operators and recreational anglers will not be mandatory,
but will be encouraged and promoted through various constituent groups,
trade publications and federal and state agencies (e.g., NMFS Office of
Intergovernmental and Recreational Fisheries, Sea Grant). It is
important to note, however, the success of any outreach program is
predicated on reaching the entire billfish recreational angler
community, which may eventually require implementation of a permit or
other registration procedure.
Comment 3: Requiring billfish and other HMS tournaments to notify
NMFS four weeks prior to commencement of the tournament is punitive and
unnecessary. Without corresponding time and area closures of longline
fishing in spawning and nursery areas, mandatory tournament
registration is unfairly biased against the recreational fishing
industry.
Response: NMFS disagrees. The 1997 ICCAT recommendation requires
improvement in monitoring, data collection and reporting in all
Atlantic billfish fisheries. The tournament notification requirement is
critical to developing a sampling frame for tournaments to allow for
better monitoring, data collection, and reporting of billfish and other
HMS tournaments. Tournament registration also gives NMFS a sampling
frame to obtain information on participation level, angler effort, as
well as social, economic and fisheries characteristics data.
Information from the tournament registration forms will provide a
general guide to the total number tournaments, their locations, number
of participants, etc. This action will greatly improve NMFS' collection
of a data from a significant segment of the recreational HMS fishery at
a relatively small social and economic cost. This requirement is
comparable to the logbook data that are submitted by charter/headboats,
and commercial fishermen in that it collects catch and effort
information.
Comment 4: The definition of an HMS tournament, including Atlantic
billfish, as ``any fishing competition involving Atlantic HMS in which
participants must register or otherwise enter or in which a prize or
award is offered for catching such fish,'' is too broad.
Response: The definition of tournament is intentionally broad so
that as much data as possible can be collected to better identify the
universe of billfish anglers. While all tournaments will be required to
register, tournament directors must report only if selected.
Comment 5: The Atlantic billfish tournament reporting form needs to
be revised to more closely match the type of information that can
practically be collected during a tournament.
Response: NMFS will hold joint workshops with fishing
organizations and interested members of the public to discuss the best
format for accurate reporting of necessary data.
Comment 6: Tournaments selected to report should have 100- percent
compliance and summary data should be made available to tournament
directors, the HMS APs, and ICCAT Advisory Committee in a timely
fashion, comparable to other fisheries managed under ICCAT quotas.
Response: NMFS will work to ensure that data from tournament
reports are promptly collected, compiled, and processed to provide
summary data on a timely basis. This information is part of the annual
National Report, as well as the annual SAFE report.
Comment 7: NMFS should include penalties and/or sanctions for
failing to register/and or report catch data.
Response: NMFS agrees. The Magnuson-Stevens Act currently provides
penalties and permit sanctions for regulations promulgated under the
Act. The Magnuson-Stevens Act (section 308(a)) specifies that any
person who is found by the Secretary, after notice and an opportunity
for a hearing in accordance with section 554 of title 5, United States
Code, to have committed an act prohibited by section 307 shall be
liable to the United States for a civil penalty. Section 307(1)(a) of
the Magnuson-Stevens Act states that it is unlawful for any person to
violate any provision of this Act or any regulation or permit pursuant
to this Act. Failure to register and/or report, if selected, is a
violation of the regulations and may be forwarded to NOAA General
Counsel for review.
Comment 8: The draft Atlantic billfish FMP fails to recognize or
utilize the cooperative tagging program.
Response: NMFS disagrees. The Billfish FMP amendment includes
information for Atlantic blue marlin, Atlantic white marlin, and
sailfish, on the total number of tagged and released fish over the last
43 years as part of the Cooperative Tagging Center (CTC) program.
Information on the geographical area where most of the tagging activity
occurred and during what times of year, the average distance tagged
fish traveled before recapture, and specific movement patterns
exhibited by some fish is also included
[[Page 29098]]
in this section. The CTC database was incorporated into maps with other
effort sources to assist with determining essential fish habitat
designations. The life history characteristics, gleaned in part from
the CTC data, were often a factor in the consideration of management
actions for the final FMP amendment. Recent support of a single
billfish stock is also based in part on tag recoveries, which indicate
both trans-Atlantic and trans-equatorial movement of billfish.
Comment 9: NMFS should not require permits and logbooks for charter
boats.
Response: NMFS disagrees. The 1997 ICCAT recommendation required
improvements in monitoring, data collection, and reporting from all
fisheries that encounter Atlantic billfish. The draft FMP amendment
proposed the use of mandatory permits and logbooks for charter/headboat
operations. These management measures provide catch and effort data for
Atlantic billfish that currently are not well quantified. Therefore,
NMFS maintains that permits and logbooks for charter/headboats must be
mandatory.
Comment 10: The Atlantic blue and white marlin landing caps were
generated from reported landings for 1996, when NMFS only minimally
estimated landings based on samples of selected billfish tournaments
and the Large Pelagic Survey. NMFS has proposed several improvements in
monitoring in the FMP amendment that will increase the accuracy of
landing estimates, which could unfairly reduce the number of billfish
available to be landed, relative to 1996, in order to comply with the
1997 ICCAT recommendation.
Response: NMFS agrees that a statistically valid system must be
developed to ensure an accurate comparison between 1996 and years after
monitoring accuracy is increased. A review of all available information
is currently being conducted to obtain the most accurate,
scientifically-based landings for 1996. Other methods are also being
developed to examine catch and landing rates to determine if these
values can be used to reflect the reductions in landings between 1996
and 1998, resulting from the two interim rules (March 24, 1998, 63 FR
14030; and September 29, 1998, 63 FR 51859) implemented to increase
size limits of blue and white marlin during 1998 to immediately comply
with the 1997 ICCAT recommendation.
Comment 11: NMFS should not change the fishing year. The proposed
fishing year does not reflect the true operational time frame of the
recreational billfish fishery and could disadvantage anglers and
tournaments during the spring through potential regulatory changes
implemented by NMFS to control landings to comply with ICCAT
recommendation. Also, the proposed June 1 to May 31 fishing year is
incompatible with ICCAT reporting by calendar year.
Response: NMFS disagrees. The June 1 to May 31 fishing year was
selected as a final action for the Atlantic billfish FMP to provide
NMFS with sufficient time to meet legal requirements for implementing
ICCAT recommendations (e.g., notice and comment). NMFS will report
billfish and swordfish landings to ICCAT on both a calendar year and
fishery year basis. A June to May fishing year is also consistent with
most other HMS fisheries, thereby meeting Objective 5 of FMP amendment.
If landing caps for Atlantic blue or white marlin are exceeded, as
determined by the most recent tournament and other landings data, it is
possible that NMFS would raise the minimum size to avoid exceeding the
landing caps, which could lead to spring tournaments being negatively
impacted. However, it is anticipated that the size limits implemented
in the final rule will be sufficient to avoid this possibility.
Comment 12: NMFS fails to propose any adequate mechanisms to ensure
U.S. compliance with the 1997 ICCAT recommendation for Atlantic
billfish, contrary to the mandates of ATCA. The proposed minimum size
limits and/or recreational retention limits, and the provision
providing the AA authority to adjust the retention limit to zero, will
not accurately account for all recreational landings, as required under
this ICCAT recommendation.
Response: NMFS disagrees. The FMP amendment adopts several new
monitoring, permitting, and reporting requirements to better quantify
the number of fishermen and effort. These requirements will be
evaluated as part of the annual SAFE and National Reports and if
determined inadequate, framework provisions in the FMP amendment will
be utilized. Framework provisions for possible future actions include
vessel permits for all U.S. registered vessels fishing recreationally
for Atlantic HMS and a landing tag for all recreationally landed
billfish. In the event that the ICCAT-recommended landing caps are
close to being reached, NMFS has the authority, under section 305 (d)
of the Magnuson-Stevens Act to take appropriate action.
Comment 13: The expansion of the management unit for Atlantic blue
and white marlin to the entire Atlantic Ocean, and implementation of
regulatory actions for all Atlantic billfish under both Magnuson-
Stevens Act and ATCA could result in the double reporting of
recreational landings from U.S. citizens fishing in foreign waters.
Response: NMFS disagrees. The final FMP amendment includes a final
action to expand the management unit for Atlantic blue and white marlin
to the entire Atlantic Ocean, and implement regulatory actions for
Atlantic blue marlin and Atlantic white marlin under both Magnuson-
Stevens and ATCA. NMFS will work with the Department of State, and
other agencies to ensure that fish are counted accurately and to ensure
that accurate catch data are submitted to ICCAT.
Billfish International Rebuilding Strategy
Comment 1: NMFS should negotiate with ICCAT to prohibit the
landing of billfish throughout the Atlantic Ocean.
Response: For some ICCAT member countries/entities, billfish are
used for subsistence and/or as a source of income, while others may
have a ``no discard'' policy. However, this does not preclude these
ICCAT member countries/entities from agreeing to additional management
measures. The United States must continue to work with other members to
reach a practical solution to rebuild Atlantic billfish resources.
Indeed, the United States sponsored the 1998 ICCAT resolution calling
for additional conservation measures following blue and white marlin
stock assessments in 2000 and sailfish stock assessment in 2001.
Recovery of overfished Atlantic billfish stocks will require a multi-
national approach.
Comment 2: It is mathematically impossible for NMFS to reduce U.S.
billfish mortalities by 25 percent simply by placing restrictions on
the recreational fishery. NMFS should apply the ICCAT-recommended 25
percent reduction to all U.S. sources of mortality, not just billfish
landed by recreational anglers.
Response: The 1997 ICCAT recommendation requires member countries/
entities to ``Reduce, starting in 1998, blue marlin and white marlin
landings by at least 25 percent for each species from 1996 landings,
such reduction to be accomplished by the end of 1999.'' Although the
majority of U.S. billfish mortalities reported to ICCAT are a result of
dead discards from the pelagic longline fishery, the ICCAT
recommendation only applies to U.S. recreational anglers because they
are the only U.S. sector allowed to land billfish. The United States is
obligated by ATCA to comply with this recommendation.
[[Page 29099]]
An Atlantic billfish bycatch reduction strategy is established using
the management tools included in the HMS FMP. Billfish mortality
attributed to bycatch in the pelagic longline fleet is managed through
the HMS FMP.
Comment 3: The United States has existing regulations that limit
billfish landings (size limits for recreational anglers, and
prohibitions on commercial possession of Atlantic billfish), therefore
the 1997 ICCAT recommendation does not apply to this country.
Response: NMFS disagrees. The 1997 ICCAT recommendation requires a
reduction of Atlantic blue marlin and Atlantic white marlin landings by
at least 25 percent from 1996 levels, and there is no provision
exempting countries with existing billfish regulations that limit
allowable landings. Each member is to advise ICCAT on an annual basis
of measures in place or to be taken that reduce landings of marlins or
fishing effort. The United States is complying with this recommendation
by increasing the minimum size limit of Atlantic blue marlin and white
marlin, and continuing the commercial prohibition.
Economic Impacts Resulting from Billfish Measures
Comment 1: The draft FMP amendment overlooks the negative economic
impacts of the preferred alternatives on recreational communities.
Preferred alternatives will have negative economic impacts on not just
direct participants in the Atlantic billfish fishery but travel-related
industries; fishing-related businesses; and local charities that
receive large donations from tournaments proceedings.
Response: The draft FMP amendment and the supplementary RIR/IRFA
identified, based on the best-available information, the potential
social and economic impacts of the various management measures,
including expenditures by recreational anglers. The IRFA thoroughly
discussed the recreational retention limit, along with the zero
retention limit provision, and NMFS has dropped this measure from the
final FMP amendment. NMFS has also established a voluntary observer
program for charter/headboat vessels, in part to reduce the negative
economic impacts that would be associated with a mandatory observer
program for charter boats, and has dropped the prohibition of multiple
hooks.
Comment 2: The preferred management measures selected by NMFS
ignore the greater economic value of recreational fisheries relative to
that of the pelagic longline commercial fishery.
Response: NMFS disagrees. The draft FMP amendment and the
supplementary RIR/IRFA refer to a 1989 study by Fisher and Ditton of
Texas A&M University that provided an estimated economic impact (i.e.,
money spent) of the recreational component of the billfish fishery to
be in excess of $180 million. The draft FMP amendment and the
supplementary RIR/IRFA also included an estimate of the total gross
revenues foregone from dead discards of all billfish over the eight-
year period between 1988 and 1996, $5.3 million, or $664,648 per year.
The draft FMP amendment specifically stated: ``While these values are
far from insignificant, they are considerably less than the $180
million spent each year by tournament anglers alone, and net economic
benefits of $2 million per year.''
Comment 3: NMFS should evaluate which industry (recreational or
commercial) provides the most economic value to the United States and
select management measures accordingly. The recreational billfish
community annually generates millions of dollars for the U.S. economy
(economic impact) in the pursuit of what essentially constitutes a
catch-and-release fishery. Conversely, commercially caught billfish
have no value because they must all be discarded. The total ex-vessel
value of targeted commercial species (i.e., tuna and swordfish)
contributes less to the national economy than recreational highly
migratory species anglers. Therefore, NMFS should ban use of pelagic
longline gear in the U.S. EEZ.
Response: NMFS disagrees. The final RIR and the IRFA discuss common
misconceptions of comparing recreational versus ex-vessel economic
effects. Additionally, in determining final management actions, the
economic value of a fishery is an important consideration, however it
is not the sole criterion. NMFS must consider additional factors and
consider resultant potential impacts on each fishing sector. While NMFS
recognizes the significant economic value of billfish recreational
fishery, it does not support banning the use of longline gear.
Comment 4: NMFS should reduce billfish bycatch mortality by
developing a buyout program to reduce or eliminate pelagic longline
vessel effort in the Atlantic Ocean.
Response: Consideration of a fishing capacity reduction plan, as
well constraints on buyback programs and funding mechanisms were
described in the draft FMP amendment. A buyout program can only be
effective in the reduction of billfish bycatch if the overall effort
(i.e., number of hooks in the water) is reduced. The final FMP
amendment action to establish an Atlantic billfish bycatch reduction
strategy includes buyout programs as one of six elemental components in
the HMS FMP that may be used to effectively reduce effort and longline
bycatch mortalities. NMFS may consider establishing a buyout program in
the HMS FMP after the rebuilding program in that plan is established,
along with limited access.
Comment 5: Atlantic billfish tournaments that require landing
billfish constitutes ``trade, barter, or sale.'' NMFS should prohibit
cash/merchandise prizes in association with these tournaments to reduce
the incentive to land Atlantic billfish.
Response: NMFS disagrees. Regulations state that the sale or
purchase of billfish from its management unit is prohibited (50 CFR
635.31). A survey of tournament rules has shown that a billfish is not
required to be given to the tournament to qualify for a prize, rather
the fish is only subject to a measurement of its weight. The fish is
ultimately retained as the property of the individual submitting the
fish for entry in the tournament, therefore no purchase or sale of the
billfish has occurred and the regulations have not been violated. Any
tournament that violates the prohibition on sale would be subject to
civil action. However, the final FMP amendment does not prohibit cash/
merchandise prizes in association with billfish tournaments as long as
they are not given in exchange for any billfish.
Atlantic Tunas
Comment 1: NMFS should prohibit longline and net gear (including
driftnets and purse seines) in the bluefin, yellowfin, and bigeye tuna
fisheries.
Response: Driftnet gear is already prohibited in the bluefin tuna
fishery and through this final action is prohibited in the fisheries
for other Atlantic tunas (bigeye, albacore, yellowfin, skipjack (BAYS
tunas). Pair trawls are prohibited in all Atlantic tuna fisheries.
Longline gear is restricted in the bluefin tuna fisheries with strict
target catch requirements for incidental catch retention. Through this
final action, fishermen who wish to enter the BAYS longline fishery are
required to obtain limited access permits for both Atlantic swordfish
and sharks. As such, access to the BAYS longline fishery is limited.
Since pelagic longline gear is used to target swordfish and other fish
[[Page 29100]]
species, prohibiting the gear in the Atlantic tuna fisheries would
result in increased tuna discards. NMFS maintains that there is no
reason at this time to prohibit the use of purse seine gear in the
Atlantic tuna fisheries. Bycatch concerns are minimal and access to the
fishery is limited.
Comment 2: NMFS received numerous comments regarding bluefin tuna
landings quota allocation, supporting and opposing limiting the Purse
Seine quota to 250 mt. NMFS also received requests to reallocate some
Purse Seine quota to other categories (commercial and recreational) to
reflect historical participation and/or the increase in fishery
participants (e.g., the Angling category). Comments in support of Purse
Seine quota reduction include: the Purse Seine allocation is
inconsistent with NS 4 in that the allocation is not fair and
equitable, a few individuals receive an excessive share of the landings
quota, and since Individual Vessel Quotas are transferrable, it is
conceivable that a single owner could acquire rights to the entire
Purse Seine Quota; NMFS should not incorporate the IVQ system by
reference; and NMFS should implement a buyback program for the Purse
Seine fishery. Comments in opposition to limiting the Purse Seine
category to 250 mt include: the proposed cap was neither presented in
the draft HMS FMP nor to the HMS AP for discussion, would be an
arbitrary and capricious action, and would be contrary to the Magnuson-
Stevens Act provision that NMFS ``allocate both overfishing
restrictions and recovery benefits fairly and equitably among sectors
of the fishery;'' the argument that the fishery does not contribute
catch per unit effort (CPUE) data is invalid; NMFS should not take this
action without conducting a comparative analysis of allocations leading
to ``excessive quota shares;'' and the AP, in discussing the issue of
Purse Seine quota (as referenced in the proposed rule) was referring to
relative quota shares rather than an absolute quota tonnage.
Response: As described in the FMP, NMFS bases the quota
allocations on consideration of several factors, including the
collection of the best available scientific data and the optimization
of social and economic benefits. When NMFS established the current
limited entry system with non-transferable individual vessel quotas
(IVQs) for purse seining in 1982, NMFS considered the relevant factors
outlined in section 303(b)(6) of the Magnuson-Stevens Act. In 1992,
NMFS established ``base'' quotas for all categories, which were based
on the historical share of landings in each of these categories during
the period 1983 through 1991. In 1995, NMFS reduced the Purse Seine
category base quota by 51 mt, in large part because the Purse Seine
category does not provide a catch per unit effort time series used to
estimate trends in stock size. This reduced quota was the base for the
allocation to purse seines in 1996 through 1998. NMFS believes that
limiting the future Purse Seine category to this same quota level is
fair and equitable, given that the limited entry (IVQ) system has
limited participants who are insulated from increased competition and
participation, in contrast to the other categories that are open-access
fisheries with increasing participation and intense competition for the
quota. Similarly, based on consideration of the historical
participation of those in the Purse Seine fishery, NMFS does not
believe that the allocation to the Purse Seine category, including any
possible transfers of quota within the category, constitutes an
excessive share of the bluefin tuna quota.
However, NMFS notes that the AP did not have an opportunity to
address the Purse Seine quota in the context of the quota increase.
Therefore, NMFS will hold the 8 mt in the Reserve until after the AP
has discussed the issue. If NMFS concludes that a different result is
appropriate, the Purse Seine category quota would be modified through
the framework provisions in the FMP.
NMFS has no plans to consider a vessel buyback in the Purse Seine
fishery at this time.
Comment 3: NMFS received numerous comments in support of a
prohibition on the use of spotter aircraft by vessels (other than Purse
Seine category vessels) participating in the bluefin tuna fishery,
specifying that the prohibition would, among other reasons: lengthen
the season via reduced catch rates, ``level the playing field'' for
those fishermen who do not use planes, decrease bycatch and discard of
undersized bluefin tuna, affirm the basis for the allowance of multiple
landings for the Harpoon category (i.e., dependence on good weather),
return the Harpoon category to its traditional fishing methods, and
reduce the potential for accidents. NMFS received comment that the
final rule should be issued before May 15, 1999, so that vessel owners
can choose their appropriate permit category. NMFS also received
several comments from opponents of a prohibition, including: NMFS
should address the spotter plane issue independently of the FMP and
should base its decision on the best available science; NMFS has failed
to identify the important fishery-independent data (e.g., on bluefin
tuna distribution, behavior, and environmental biology) collected by
spotter pilots and has implied in the FMP that CPUE-based indices are
the only scientific data of any importance to bluefin tuna management;
and arguments to prohibit the use of planes in the bluefin tuna fishery
are baseless. Other comments NMFS received regarding the spotter plane
issue include: NMFS should make a decision regarding an increase to the
Harpoon quota independent of the decision on spotter planes; NMFS
should implement a subquota for Harpoon vessels that are assisted by
spotter planes; NMFS should implement a daily catch limit of one
bluefin tuna per day for Harpoon vessels; and NMFS should hire spotter
pilots to conduct scientifically valid, fishery-independent aerial
surveys. NMFS also received comment that, since many General category
permit holders may obtain a Harpoon category permit if NMFS implements
a spotter plane prohibition (for vessels other than in the Purse Seine
category), NMFS should increase the Harpoon category quota.
Response: NMFS did not implement a final action regarding this
issue in the HMS FMP. A separate rulemaking will be undertaken after
further deliberation and analyses. NMFS agrees that analysis of the
effects of spotter aircraft on vessels participating in the bluefin
tuna fishery must be based on the best available science. NMFS intends
to complete a final rule on this issue prior to the commencement of the
General and Harpoon category fishing seasons, June 1, 1999, and
understands that it is preferable to announce the decision prior to the
deadline for permit category changes.
Comment 4: NMFS should not require that Atlantic tunas other than
bluefin tuna be landed with the tail attached; this regulation is
unnecessary and restrictive. The current dressing procedures, which
leave pectoral fin and the dorsal fins attached, provide the necessary
physical features for accurate species identification. Keeping tail
fins intact creates processing and storage problems for tunas that will
reduce quantity and price.
Response: NMFS recognizes the impact of the current required
landing form on commercial fishermen, especially longline fishermen.
NMFS requires the landing of Atlantic tunas with the tail and one
pectoral fin attached to facilitate enforcement of minimum size.
However, NMFS is currently analyzing yellowfin and bigeye tuna
measurement data to
[[Page 29101]]
develop a formula to convert measurements (e.g., pectoral fin to fork
measurement or pectoral fin to keel measurement) for yellowfin and
bigeye tuna landed with the head removed. NMFS may consider allowing
yellowfin and bigeye tuna to be landed with head and tail removed when
an appropriate conversion formula is developed.
Comment 5: NMFS received numerous comments regarding restricted-
fishing days (RFDs), some of which support the status quo, some of
which oppose RFDs altogether, and some suggesting alternate schedules,
including: in order to extend the General category season, NMFS should
implement more RFDs than proposed, e.g., 3 days or more per week
(Sundays, Wednesdays, and Fridays or Sundays, Mondays, and Wednesdays)
in addition to the days that correspond to Japanese market closures,
and NMFS should begin the schedule of RFDs for 1999 in early July.
Response: NMFS has considered these comments and agrees additional
General category RFDs may increase the likelihood that fishing would
continue throughout the summer and fall, and would further distribute
fishing opportunities without increasing bluefin tuna mortality. NMFS
will announce annually the General category effort control schedule
(time period subquotas and RFDs) through a final specifications notice.
NMFS intends to announce the 1999 RFD schedule and address comments
regarding effort controls in the final specifications, to be published
concurrent with this final rule. See Appendix 3 of the final HMS FMP
for the 1999 effort control schedule and a discussion of the effort
control alternatives.
Comment 6: NMFS received some comments in support of the status
quo General category time-period subquotas (three periods), and some
suggesting alternate schedules, including: NMFS should implement two
General category time-period subquotas (e.g., for June-August and
September-December) since prices are higher in August than September
and to avoid derby conditions in October.
Response: NMFS addresses comments regarding effort controls in the
1999 final specifications notice, published concurrent with this final
rule. See Appendix 3 in the final HMS FMP for the 1999 effort control
schedule and a discussion of the effort control alternatives.
Comment 7: NMFS received several comments requesting more
certainty regarding the Angling category season, retention limits, and
quota allocation, including: NMFS should implement a separate daily
retention limit for U.S. Coast Guard inspected vessels; NMFS should
separate recreational landings quotas for Charter and private vessels;
NMFS should implement more and/or different regional subquotas; NMFS
should implement date-certain seasons; NMFS should balance the entire
Angling category quota over three years; and NMFS should shift the
north/south dividing line for the Angling category. Further comment
included: NMFS should establish a set season with daily retention
limits and minimum sizes by area and make adjustments for overharvests
and underharvests annually vs. inseason. With this approach, the
recreational industry and anglers can make plans for the fishing season
that will not get disrupted by uncertain changes (i.e., closures and
adjustments to the daily retention limit). An improved data collection
program would be an important part of this and could be pursued with
industry support to provide accurate catch and effort data for quota/
stock monitoring purposes and to determine the sub-area quotas/seasons
for the following year. The annual assessment of the catch and
adjustment of the sub-area quotas should make it easier to analyze and
implement a better location for the north/south line and the
possibility of a third area in the vicinity of Montauk, New York and
north.
Response: In the HMS FMP, NMFS describes the challenges in
managing and monitoring the recreational fishery for bluefin tuna, with
its highly variable catch rates and locations, and the ICCAT
restrictions on the catch of school size bluefin tuna. In order to
monitor recreational landings of bluefin tuna, NMFS requires
cooperation from the recreational community in using the Automated
Catch Reporting System and participation in the Large Pelagic Survey.
NMFS has the authority and flexibility to open and close the Angling
category in sub-areas in order to ensure equitable fishing
opportunities. The recent ICCAT recommendation which allows 4 years for
countries to balance their landings of school size bluefin tuna also
should allow the United States more flexibility in managing this
fishery, and NMFS is committed to working with the Advisory Panel, the
States, and recreational fishermen in order to better manage the
Angling category fishery.
Comment 8: NMFS should postpone action on the bycatch measures
until it has at least a full year's data from all fishing sectors, in
order to proceed in a fair, equitable, and effective manner.
Response: NMFS has based the bycatch measures on the best available
information. Further, NS 9 requires NMFS to minimize bycatch to the
extent practicable.
Comment 9: NMFS should permit spearguns as an allowable gear type
in the Atlantic tunas Angling category fishery.
Response: The fishery for Atlantic tunas is subject to intense
competition among the various user groups; the addition of spearguns as
an allowable gear type could cause additional conflict among the user
groups, and may pose other problems including safety and discard
concerns. Therefore, NMFS is not adding spearguns as an allowable gear
type at this time.
Comment 10: NMFS received numerous comments for and against the
proposed recreational daily retention limit of 3 yellowfin tuna per
angler. Those in support of the retention limit include: NMFS has
ignored the expansion of the recreational yellowfin tuna (and bigeye
tuna) effort despite the U.S. commitment to ICCAT to limit effective
yellowfin effort to the reported 1992 level, so NMFS should implement
recreational restrictions now; a daily retention limit of 3 yellowfin
tuna per angler is excessive; NMFS should implement a yellowfin tuna
daily retention limit since yellowfin tuna seem to be of less weight
than in previous years. Comments in opposition to the retention limit
include: As yellowfin tuna are not currently considered overfished,
there is no basis for a yellowfin tuna daily retention limit; a limit
now may lead to a further reduction of the retention limit in
subsequent years, as has happened in the bluefin tuna fishery; NMFS has
proposed no commercial limits, so the recreational limit is
inequitable; setting a recreational daily retention limit may
disadvantage the United States in ICCAT negotiations (if a yellowfin
tuna quota is recommended in the future) if it results in decreased
U.S. landings; a retention limit would have a negligible impact on
fishing mortality since on most trips, each angler lands 3 or fewer
yellowfin tuna, and in many areas, captains voluntarily limit each
angler to 3 or fewer yellowfin tuna; there is no domestic benefit for
the regulation since U.S. landings comprise only approximately 4
percent of the Atlantic landings; and until NMFS has scientific data
that show that the implementation of daily retention limits is
warranted, NMFS should not take any action that affects only the
recreational sector.
Response: NMFS acknowledges the importance of yellowfin tuna to
the recreational fishing industry. NMFS chooses to take the
precautionary approach since the latest SCRS report
[[Page 29102]]
indicates that the current fishing mortality rate on yellowfin tuna is
probably higher than that which would support maximum sustainable yield
on a continuing basis. Further, effort restrictions are consistent with
the ICCAT recommendation to limit effective fishing effort for
yellowfin tuna to 1992 levels. NMFS has already implemented, or is
implementing through the HMS FMP, several restrictions in the
commercial yellowfin tuna fisheries, including limited access in the
purse seine and longline BAYS fisheries, and the prohibition on pair
trawl gear and driftnets in the Atlantic tunas fishery. NMFS maintains
that limiting access to the recreational yellowfin tuna fishery is not
desirable at this time and that the retention limit is an alternative
management measure that is consistent with the ICCAT recommendation.
This retention limit for yellowfin tuna is designed to prevent
excessive landings in the recreational fishery and maximize long-term
fishing opportunities.
Comment 11: NMFS should allow dealers more than 5 days after the
completion of each bi-weekly reporting period to submit bluefin tuna
bi-weekly reports. Price information is not available for bluefin tuna
shipped to Japan until 4 days after landing, and allowing dealers only
one day to submit the information is unreasonable.
Response: NMFS agrees, and understands that the proposed reporting
requirement may be difficult for dealers to comply with considering the
market for bluefin tuna. Therefore, NMFS is not modifying the current
10-day reporting period for bluefin tuna bi-weekly reports.
Comment 12: NMFS should not hold 20 mt of the Angling category
school bluefin tuna subquota in reserve, given that NMFS may now
balance overharvests and underharvests over a four-year period.
Response: Because of high, and highly variable catch rates, the
Angling category can easily harvest and exceed its school bluefin tuna
subquota. NMFS maintains that holding some school bluefin tuna landings
quota in reserve is prudent in that it will help to ensure U.S.
compliance with the ICCAT-recommended limit on the retention of school
bluefin tuna. NMFS may allocate tonnage from the school bluefin tuna
reserve during the season, as appropriate.
Comment 13: The provision to add or deduct bluefin tuna
underharvest or overharvest, as applicable, should be discretionary
only for school bluefin tuna, which can be balanced over a four-year
period. For all other size classes, the provision should be mandatory.
Response: NMFS agrees and has clarified the regulations to be
consistent with the ICCAT recommendation. In the case of bluefin tuna
overharvest or underharvest, NMFS must subtract the overharvest from,
or add the underharvest to, the appropriate quota category, or
subcategory, with the exception of the Angling category school bluefin
tuna subcategory, for the following fishing year, provided that the
total of the adjusted landings quotas and the Reserve is consistent
with the ICCAT Rebuilding Program. In the following year, NMFS also may
allocate any remaining landings quota from the Reserve to cover this
overharvest, consistent with the established criteria.
For the Angling category school bluefin tuna subcategory, because
of the ICCAT-recommended 4-year balancing period, NMFS may subtract the
overharvest from, or add the underharvest to, the school bluefin tuna
subquota for the following fishing year. NMFS must, prior to the end of
the 4-year balancing period, make adjustments to account for
overharvest of school bluefin, if necessary to comply with the ICCAT
Rebuilding Program.
Quota monitoring in the bluefin tuna fishery is difficult and
overharvests are likely, thus accounting for overharvests will not be
``punitive,'' in that one category or subcategory's landings quota
overharvest will not be redistributed to other categories. While some
comments submitted to NMFS have suggested that categories should be
``rewarded'' or ``punished'' for their under/overharvests as described
above, NMFS maintains it is not the intent of ICCAT or a domestic
management objective to redistribute quota from one category to another
due to overharvest. The ICCAT provision regarding overharvest and
underharvest is designed to address consistent mortality, not just
compliance.
Comment 14: The Angling category fishery should be catch and
release only.
Response: NMFS considered the elimination of the small fish
landings quota for bluefin tuna, but rejected this alternative because
the elimination of the school, large school, and small medium bluefin
tuna fishery would have adverse social and economic impacts on the
recreational and charter/headboat sectors, and would reduce NMFS'
ability to collect the best available data on the catches of the
broadest range of age classes possible for stock assessment purposes.
Comment 15: Commercial yellowfin tuna landings should be reduced
by at least 50 percent.
Response: As indicated in a previous response, NMFS has taken
numerous measures to restrict the commercial yellowfin tuna fisheries.
Therefore, NMFS maintains that no further action regarding the
commercial yellowfin tuna fisheries is necessary at this time. NMFS is
concerned about the level of fishing mortality on this stock, and will
continue to monitor the status of the yellowfin tuna fisheries.
Comment 16: NMFS should continue to allow the traditional harvest
of skipjack, bonito, and bait fish with driftnet gear. This gear has
been used off the coast of New Jersey for 11 years. This is a clean
fishery with no bycatch of marine mammals or endangered species. The
draft HMS FMP shows that skipjack and bonito stocks are underutilized
and U.S. catches are at low levels. The fisheries for skipjack and
bonito are mixed; a directed fishery for bonito cannot be pursued
without skipjack as bycatch.
Response: Because the Magnuson-Stevens Act does not include bonito
in its definition of HMS, NMFS is not implementing bonito conservation
and management measures in this FMP. NMFS recognizes that the
prohibition on driftnets for Atlantic tunas would preclude a small
coastal driftnet fishery from retaining its catch of skipjack. NMFS may
issue EFPs to the limited number of coastal driftnet fishermen affected
by the gear prohibition in order to collect more information on this
fishery and help determine NMFS' future course of action. Individuals
who wish to use driftnet gear when targeting species other than
Atlantic tunas may apply to NMFS for an EFP to land incidentally caught
Atlantic tunas (other than bluefin).
Comment 17: NMFS should allow individuals renting vessels to obtain
an Atlantic tunas permit (e.g., for tourists in the U.S. Virgin Islands
and Puerto Rico).
Response: Any vessel with state registration or U.S. Coast Guard
documentation may obtain an Atlantic tunas permit. Individuals
chartering or renting a vessel for which NMFS has issued an Atlantic
tunas permit are therefore eligible to fish for Atlantic tunas.
Comment 18: The existing and proposed bluefin tuna regulations
violate the Magnuson-Stevens Act, specifically NS 1. The HMS FMP should
include a valid designation of MSY, OY, and EFH, using the
precautionary approach, as well as objective and measurable criteria
for defining overfishing and the measures for ending overfishing and
rebuilding the fishery. The ICCAT rebuilding program also
[[Page 29103]]
violates NS 2, which requires the use of the best scientific
information available, and it was adopted without public input. NMFS
must explain why it is using untested models to set MSY. Additional
measures that should be included in the HMS FMP include increased
observer coverage, minimization of bycatch in spawning areas such as
the Gulf of Mexico, and minimization of bycatch by regulating longline
fishing gear.
The HMS FMP and proposed regulations also violate the United
Nations Agreement on Straddling Stocks, which requires the application
of the precautionary approach in the management of fish such as bluefin
tuna.
Response: The ICCAT rebuilding program meets the standards of the
Magnuson-Stevens Act in that it includes an appropriate time period,
targets, limits, and explicit interim milestones for recovery; NMFS
indicated in the draft FMP that adoption of the ICCAT rebuilding
program would be the preferred alternative if these standards were met.
The ICCAT rebuilding program is based on the SCRS stock assessment,
which is the best scientific information available. It is consistent
with both the Magnuson-Stevens Act and the Atlantic Tunas Convention
Act in that it implements a quota equal to the ICCAT-recommended
allocation for the United States, and maintains traditional fishing
patterns of U.S. vessels. The bluefin tuna rebuilding program is
precautionary in that it provides the flexibility to modify the Total
Allowable Catch, the MSY target, and/or the rebuilding period based on
subsequent scientific advice.
Finally, note that NMFS is implementing a time/area closure and a
limitation on length of the mainline to reduce pelagic longline dead
discards.
Comment 19: In the draft FMP, NMFS has used definitions and
methodologies that ascribe higher values to the recreational fishery or
the ``existence value'' of HMS than to the ``net economic benefits'' of
the commercial fishery. NMFS appears to interpret NS 8 as less equal
than NS 1.
Response: NMFS disagrees; NMFS is not ascribing higher values to
the recreational fishery, or the ``existence value'' of HMS. To prepare
this FMP in accordance with the Magnuson-Stevens Act, NMFS has
addressed the National Standards for both the commercial and
recreational sectors using the best available information. In addition,
the NSGs state that the consideration of community impacts must not
compromise the achievement of conservation requirements.
Comment 20: Regarding public hearings, NMFS should ensure that
individuals be provided an environment in which they can express their
comments for the record. At a few of the HMS FMP public hearings, some
individuals felt physically or otherwise threatened by other attendees
while or after making their comments and have expressed that they will
not give comments at public hearings until NMFS addresses this issue.
Response: NMFS is very concerned about comments that concern for
personal safety is hindering the public process. NMFS agrees that all
attendees at public hearings should be able to articulate their
comments in a safe environment. Public comment is an essential part of
rulemaking, and public hearings can be an important element in the
public comment process. NMFS acquires good information from the
comments presented at public hearings and expects members of the public
to conduct themselves appropriately for the duration of the meeting. At
the beginning of each public hearing, a NMFS hearing officer explains
the meeting ground rules (e.g., attendees will be called to give their
comments in the order in which they registered to speak, each attendee
will have an equal amount of time to speak, and attendees should not
interrupt one another). The hearing officer attempts to structure the
meeting so that all attending members of the public are able to
comment, if they so choose, regardless of the controversiality of the
subject(s). Attendees are expected to respect the ground rules, and if
they do not, they will be asked to leave the hearing. In the future,
when announcing HMS public hearings or scoping meetings, NMFS will
include in the notice a reminder of the ground rules for these
meetings.
Comment 21: In the FMP, the objectives for bluefin tuna management,
especially those regarding the preservation of traditional fisheries
and historical fishing patterns, should be listed separately, as should
the objectives for the other HMS fisheries, and the seven objectives
(three listed in the 1995 bluefin tuna Final EIS and four in a 1992
bluefin tuna final rule) should be included. This will be especially
important for future ICCAT negotiations as other nations may seek a
portion of the west Atlantic Total Allowable Catch.
Response: In preparing one FMP for the management of Atlantic
tunas, swordfish, and sharks, NMFS has chosen to list the management
objectives together. However, NMFS has added language to the objectives
to include preserving traditional fisheries as well as historical
fishing patterns and participation.
Comment 22: NMFS should allocate the fair share of the 1998 ICCAT-
recommended U.S. landings quota increase to the Incidental category,
the Harpoon category, and the Purse Seine category, and should ensure
that any future landings quota increases be distributed fairly and
according to each user group's historical share of the fishery. NMFS
does not need to maintain such a large reserve, given the improvements
in commercial quota monitoring, the new 4-year balancing period for
school bluefin tuna, and the proposed school bluefin tuna reserve. NMFS
should allocate 17 mt from the Reserve to the Harpoon category quota,
to reflect the Harpoon category's traditional participation in the
fishery.
Response: The FMP implements percentage share allocations for
bluefin tuna, and all categories other than the Purse Seine category
will share in the impacts of both quota increases and reductions (see
response to comment 2). Bluefin tuna allocation issues were discussed
extensively at several HMS AP meetings in 1998, and there was general
support for maintaining the 1997/1998 quota allocations (which are
based upon the historical share of landings in each of these categories
during the period 1983 through 1991, modified in 1995 and 1997). While
NMFS agrees that improved commercial bluefin tuna monitoring, along
with the 1998 ICCAT recommendation and the measures adopted in this
FMP, allow for more flexible management of the fishery, NMFS maintains
that the Reserve is necessary to ensure that the United States does not
exceed its ICCAT-recommended landings quota, and to utilize it for
inseason or post-season transfers as necessary and appropriate.
Comment 23: In order to avoid potential bycatch mortality, NMFS
should not implement a daily retention limit for the Incidental other
subcategory (e.g., for traps), but rather should allow landings until
the quota is filled.
Response: The FMP eliminates the Incidental permit category for
Atlantic tunas, and creates two new categories: ``Longline'' to reflect
the existing authorization of directed longline fisheries for tunas
other than bluefin tuna, and ``Trap'' to account for unavoidable catch
of bluefin tuna by pound nets, traps, and weirs. To address enforcement
issues concerning unauthorized landings of bluefin tuna under the
Incidental category quota, fixed gear other than ``traps'' and purse
seines for non-tuna fisheries will no
[[Page 29104]]
longer be allowed to land bluefin tuna. Because of the limited ``Trap''
quota, and the infrequent catch of bluefin tuna by pound nets, traps,
and weirs, NMFS maintains that the proposed one fish per year retention
limit for the Trap category is sufficient, and will not result in
additional bycatch.
Comment 24: The comment period for the Bluefin Tuna Addendum was
not long enough.
Response: NMFS filed the supplemental proposed rule regarding
bluefin tuna issues on February 22, 1999, and express-mailed copies of
the Bluefin Tuna Addendum to AP members and other consulting parties to
maximize time to review the document before the deadline for comments.
In response to public requests that additional time was needed to
review the Addendum, NMFS subsequently extended the comment period
deadline (except for proposed swordfish import restrictions) to March
12, 1999, to allow for 2 weeks of additional comments, and added a
public hearing at the end of the scheduled 26 hearings.
Atlantic Swordfish
Swordfish Rebuilding
Comment 1: NMFS received many comments in support of swordfish
rebuilding programs with various timetables, including the adoption of
an ICCAT-recommended rebuilding program and rebuilding programs shorter
than 10 years.
Response: NMFS must implement the ICCAT-recommended quota once it
is accepted by the United States, and has supported the development of
a rebuilding program for swordfish by ICCAT scientists. NMFS believes a
10-year rebuilding program for North Atlantic swordfish is appropriate.
NMFS considered a shorter rebuilding program but seeks to balance a
reduction in short-term impacts on small businesses and recovery of the
stock.
Comment 2: NMFS should ban swordfish fishing for 5 years.
Response: The United States cannot reduce the swordfish quota to
zero for 5 years; the United States is required by ATCA to adopt ICCAT
quotas once the United States accepts the ICCAT recommendation. NMFS is
establishing a foundation for working through the ICCAT process, to
develop an international rebuilding program for Atlantic swordfish once
measures are accepted by the United States. Unilateral action will not
rebuild swordfish. Banning U.S. swordfish fishing will not rebuild the
stock; international action is necessary.
Comment 3: NMFS should have a clear statement of objectives and
measures for the international rebuilding of swordfish, contrary to
what happened at ICCAT in 1998 with bluefin tuna. Those objectives
should include a 10-year rebuilding program with associated quota
reductions, closed spawning areas to reduce bycatch of juvenile
swordfish, and a reduction in fishing capacity.
Response: The ICCAT Advisory Committee (IAC) works with the U.S.
commissioners to ICCAT and NMFS to develop the negotiating strategy at
ICCAT. The HMS FMP serves as the foundation for developing an
international rebuilding program that is consistent with the Magnuson-
Stevens Act; the final action states that NMFS believes a 10-year
program is appropriate. The IAC and commissioners will seek comment on
the U.S. position at ICCAT at five regional meetings in the Fall of
1999 as well as at the IAC meeting scheduled for October 1999.
Comment 4: NMFS should include an allowance for having swordfish
fillets/steaks on board for personal consumption, similar to the
groundfish fishery management plan.
Response: NMFS cannot implement this measure at this time because
it was not contained in the proposed rule (or draft FMP). However, NMFS
has studied similar existing regulations in other fisheries and may
raise the issue at a future meeting of the HMS Advisory Panel.
Comment 5: NMFS should reinstate the commercial retention limit
(trip limit) for swordfish to help maintain higher prices and make sure
quotas are not exceeded.
Response: NMFS established the commercial retention trip limit in
order to slow catch rates. Since that time, many large capacity vessels
have left the Atlantic pelagic longline fishery. If a need arises in
the future, NMFS will consider other commercial retention limits, as
well as other alternatives, for addressing these problems.
Comment 6: NMFS should not exempt vessels with a vessel monitoring
system (VMS) unit from the swordfish retention limits in the North
Atlantic Ocean during a closure of that directed fishery. Vessels could
make one set south of the line, come north, and then continue to make
sets north of the line and NMFS would not know where the swordfish were
caught.
Response: VMS is required by all pelagic longline vessels, and
regulations have been altered to accommodate this measure, therefore,
there is no ``exemption.'' NMFS agrees that VMS does not indicate how
many swordfish are caught in a set. However, VMS would reveal if a
longline set was made in the (closed) north Atlantic, should such a
violation occur. It is not necessary to know the number of fish caught
in a closed area to impose civil penalties.
Comment 7: When the quota for swordfish landings is met, no
swordfish imports should be allowed into the United States.
Response: NMFS disagrees. Trade restrictive measures must be based
on strong evidence that there are resource conservation benefits to
such measures and must be consistent with international legal
obligations. Note also that NMFS has implemented a final rule
prohibiting the import of Atlantic swordfish less than the ICCAT
alternative minimum size, and requiring documentation of the source of
all swordfish imports in an effort to better monitor international
fishing levels.
Comment 8: The swordfish data collected off the coast of south
Florida in the 1980s are biased and incomplete. The fishery was
severely depleted at that time due to the expansion of the near-shore
longline fishery off Florida, which adversely affected juvenile and
migrating fish.
Response: The data collected on fishing mortality of juvenile and
migrating swordfish off Florida in the 1980s are currently the best
available scientific information to reflect the historical conditions
of that fishery. However, if additional data become available, they
could be incorporated in the stock assessment.
Swordfish Recreational Fishery
Comment 1: NMFS received many comments on the issue of accounting
for recreational fishing mortality, including suggestions for future
monitoring programs. These suggestions included maintaining the status
quo, establishing a new recreational directed fishery quota, or
supporting the proposed measure of subtracting recreational landings
from the incidental catch quota.
Response: NMFS needs time to assemble the historical data that
exist and therefore cannot set a reasonable recreational directed
fishery quota at this time. However, NMFS recognizes that effort in
this sector is growing as swordfish encounters appear to be increasing
in some areas and therefore swordfish recreational landings need to be
subtracted from the U.S. swordfish quota. NMFS will subtract
recreational swordfish landings from the incidental catch quota and may
establish a directed
[[Page 29105]]
fishery quota and monitoring program, when and if appropriate.
Comment 2: NMFS should establish a recreational swordfish
retention limit of 1 swordfish per person per day.
Response: NMFS disagrees. Recreational directed fishing mortality
is not sufficiently known at this time to determine the impacts of a
recreational retention limit for swordfish. Retention limits may be
established in the future through the framework process.
Comment 3: The proposed regulations imply that if the recreational
catch is subtracted from the Incidental catch quota and that quota
category closes because the quota is met, then there will be a closure
of the recreational fishery.
Response: NMFS' intent is to account for all sources of mortality,
including the recreational catch of swordfish. Therefore, if the
incidental catch quota category is closed, all fishermen who catch
swordfish incidentally, including all recreational fishermen, must
release them. As noted in Comment 1 in this section, NMFS may consider
a subquota for recreationally-caught swordfish in the future.
Counting Dead Discards Against the Swordfish Quota
Comment 1: NMFS received many comments on the issue of accounting
for all sources of mortality on the swordfish stock. These comments
supported either unilateral or multilateral (or both) measures to count
dead discards against overall quotas.
Response: NMFS agrees that accounting for all sources of mortality
will enhance rebuilding, and this FMP establishes the foundation to
count dead discards against the swordfish quota. NMFS cannot count dead
discards against the ICCAT quota unless recommended by ICCAT.
Comment 2: If NMFS counts dead discards of swordfish against the
quota, then NMFS should eliminate the minimum size and allow fishermen
to land and utilize all hooked swordfish.
Response: NMFS implemented the alternative ICCAT minimum size of 33
lb dw in 1996 and has implemented a ban on sale of swordfish less than
that size in the United States. Counting dead discards against the U.S.
quota may serve as an incentive for fishermen to avoid areas of small
swordfish concentration. By coupling a minimum size measure with a
future time/area closure, NMFS' intent is to reduce U.S. mortality of
undersized swordfish.
Comment 3: Allocation of quotas should be gear-specific and
discards should be counted against these specific gear allocations.
Response: NMFS authorized longline, harpoon, and other handgear
fishermen to fish for Atlantic swordfish in a directed commercial
fishery. NMFS does not intend to further sub-divide the directed quota
at this time due to low swordfish landings by handgear fishermen. Dead
discards would be counted against the entire category.
Comment 4: NMFS counted swordfish dead discards against the quota
in the past and it did not make a difference to the stock.
Response: NMFS has always monitored and reported dead discards in
the commercial swordfish fishery to ICCAT, and this mortality was taken
into account in assessing total mortality of swordfish. NMFS wants to
account for all sources of mortality, and to create every incentive for
vessel operators to minimize bycatch and bycatch mortality of HMS.
Rebuilding swordfish stocks requires more than just accounting for dead
discards, it requires a decrease in fishing mortality rate to rebuild
overfished stocks. In the past, the fishing mortality rate was too high
and has resulted in overfishing, regardless of whether dead discards
were included in the quota.
Swordfish Size Limits
Comment 1: NMFS should consider eliminating the minimum size limit
for swordfish because other countries keep all their swordfish.
Response: A minimum size is effective only if it results in a
decrease in catch of small swordfish because fishermen are able to
modify their behavior or if the survival of released fish is
sufficiently high to offset the fishing mortality that may result.
Fishermen have been able to reduce small swordfish bycatch to a certain
extent, but additional measures may now be necessary to enhance the
effectiveness of the minimum size (e.g., time/area closures.) NMFS
recognizes the need for further progress in reducing small swordfish
mortality, and will use all available information to consider other
measures to do so (e.g., time/area closures, gear modifications, etc.)
Comment 2: The United States has failed to comply with ICCAT
recommendations to protect juvenile swordfish.
Response: NMFS has adopted the alternative minimum size for
swordfish, has prohibited the sale of undersized swordfish, and keeps
appropriate records of swordfish discards. All of these measures are
consistent with ICCAT recommendations to protect small swordfish.
Comment 3: NMFS received many comments on the minimum size for
swordfish that ranged from maintaining the status quo to adopting a
schedule of small annual increases in the swordfish minimum size limit
above the current minimum size limit of 33 lb (15 kg) dressed weight
(dw). Other comments: include the minimum size in the framework;
consider more creative options for minimum sizes such as changing
tolerance levels so the swordfish are not wasted; and consider options
that would be acceptable in the international context to reduce size
compliance issues that would otherwise undercut rebuilding schedules.
Response: Reducing mortality of small swordfish is important to the
recovery of the stock. Increasing the minimum size in increments over
time, however, makes it difficult to assess changes in stock size and
structure due to the way size-specific abundance data are collected.
Increasing the minimum size might increase longline discards given the
fact that swordfish do not segregate by size class throughout the
Atlantic. NMFS prefers to maintain the minimum size and implement time/
area closures, gear modifications, and other measures to reduce bycatch
of undersized swordfish and increase survival of released fish. NMFS
has included the swordfish minimum size in the FMP framework and is
addressing small swordfish bycatch reduction through development of
more effective time/area closures of the pelagic longline fishery.
Atlantic Sharks
Shark Fishing Gears
Comment 1: NMFS should prohibit commercial fishing gears; NMFS
should prohibit longline gear.
Response: NMFS disagrees. The final actions in the HMS FMP are
expected to meet the conservation goals to rebuild large coastal sharks
(LCS) and prevent overfishing of pelagic and small coastal sharks (SCS)
while allowing limited commercial harvest of sharks to continue.
Comment 2: NMFS should ban shark drift gillnets because of
excessive bycatch of finfish and protected species in that fishery, and
because the Atlantic Large Whale Take Reduction Plan (ALWTRP)
regulations do not address sea turtle and finfish bycatch issues.
Response: NMFS is gathering information on the effect of drift
gillnets in Atlantic shark fisheries on protected species, juvenile
sharks, and other finfish. However, because the limited data available
at this time do not indicate high bycatch and bycatch mortality of
protected species, juvenile sharks, and other finfish in the shark
drift gillnet fishery, NMFS is not
[[Page 29106]]
prohibiting use of this gear in shark fisheries at this time,
consistent with NS 2 which requires that management measures be based
on the best scientific information available. NMFS requires 100 percent
observer coverage in the southeast shark drift gillnet fishery at all
times to increase data on catch, effort, bycatch and bycatch mortality
rates in this fishery.
Comment 3: NMFS should not adopt the ALWTRP regulations, which are
implemented under the Marine Mammal Protection Act, under Magnuson-
Stevens Act because the purposes and goals of the Acts are different.
Response: NMFS believes that adoption of these regulations under
the Magnuson-Stevens Act will increase effective regulatory consistency
by regulating fishing activities under the authority of the Magnuson-
Stevens Act to comply with Marine Mammal Protection Act objectives.
NMFS is currently considering the implications of several regulations
that affect the practice of strikenetting in the shark drift gillnet
fishery. These regulations include the List of Fisheries and Gear under
the Magnuson-Stevens Act (64 FR 4030), the ALWTRP regulations under the
Marine Mammal Protection Act (64 FR 7529), and the proposed rule to
implement the HMS FMP (64 FR 3154). NMFS will address any
inconsistencies through future regulatory and other actions.
Comment 4: NMFS should require 100 percent observer coverage in the
southeast shark drift gillnet fishery to make sure that all bycatch is
documented.
Response: NMFS agrees.
Comment 5: The ALWTRP regulations, which are effective in April,
1999, will have huge economic impacts on, and may eliminate, the
southeast shark drift gillnet fishery due to the prohibition on night
sets.
Response: The economic effects of the regulations implementing the
ALWTRP were considered in that rulemaking (62 FR 39175, July 22, 1997;
64 FR 7529, February 16, 1999).
Comment 6: NMFS should not require 100 percent observer coverage in
one fishery; observer coverage should be comparable in all fisheries.
Response: NMFS agrees that observer coverage should be comparable
in that the level of coverage should be adequate to meet scientific and
management data needs. NMFS disagrees that levels of observer coverage
must be the same across fisheries that use different gear, fish in
different areas, or have different bycatch rates.
Comment 7: NMFS should consider converting all shark drift gillnet
boats to longline gear to reduce bycatch and the costs of monitoring
this fishery.
Response: NMFS believes that the combination of the measures in the
HMS FMP, including capping the SCS quota, the requirement for 100
percent coverage at all times in southeast shark drift gillnet fishery,
and adoption of the ALWTRP regulations under Magnuson-Stevens Act, are
appropriate to address bycatch concerns in this fishery at this time.
Comment 8: NMFS should require species-specific reporting in the
menhaden purse seine fishery, count all dead discards of sharks against
the commercial quotas, and encourage use and development of bycatch
excluder devices.
Response: NMFS agrees that more species-specific reporting and
increased observer coverage may be warranted to determine the catch,
effort, and bycatch and bycatch mortality rates in the menhaden purse
seine fishery. NMFS intends to fully analyze available information and
will work with the appropriate regulatory agencies to consider
additional management measures in the future as necessary.
Comment 9: NMFS should implement the authorized gears for sharks as
proposed.
Response: NMFS agrees. NMFS is currently considering the
implications of several regulations that affect the practice of
strikenetting in the shark drift gillnet fishery. These regulations
include the List of Fisheries and Gear under the Magnuson-Stevens Act
(64 FR 4030), the ALWTRP regulations under the Marine Mammal Protection
Act (64 FR 7529), and the proposed rule to implement the HMS FMP (64 FR
3154). NMFS will address any inconsistencies through future regulatory
and other actions.
Sharks-General
Comment 1: The original FMP is working and NMFS should give the
regulations a chance to be reflected in the science before making more
changes.
Response: NMFS disagrees. The final HMS FMP measures for Atlantic
sharks are in large part based on 1998 Shark Evaluation Workshop
results that indicate that additional reductions in effective fishing
mortality are necessary to rebuild LCS. The HMS FMP also implements
several precautionary measures for pelagic and SCS in order to prevent
these species from being overfished.
Comment 2: NMFS should ensure that states implement similar size
restrictions for sandbar sharks; effective LCS and SCS management will
require coordination with regional councils and states.
Response: NMFS has asked states to attend AP meetings and to
implement regulations consistent with Federal regulations. Several
states have implemented or are in the process of implementing
consistent or more stringent shark regulations. NMFS intends to
continue to work with the Atlantic and Gulf coastal states, the
regional fishery management councils, and the regional commissions to
coordinate consistent regulations for sharks in state and Federal
waters.
Comment 3: NMFS developed management options without international
consensus and has failed to pursue comparable shark conservation
throughout the range of these species. NMFS should justify implementing
unilateral actions when international actions are necessary to rebuild
shark stocks.
Response: Domestic action is warranted due to the fact that several
important nursery areas are located within U.S. waters and that
proactive domestic management is a critical element for successful
international shark management. NMFS disagrees that it has failed to
pursue comparable shark conservation internationally. The United States
was a leading participant in the recent FAO Consultation on Shark
Conservation and Management, which resulted in the adoption of the
Global Plan of Action for Sharks. ICCAT is pursuing additional data
collection and analyses on sharks through its current authority. NMFS
is also pursuing regional management through cooperative discussions
with Canada and Mexico.
Comment 4: NMFS must increase observer coverage and port sampling
(perhaps to 50 percent of fishing effort) to determine the
effectiveness of the measures in the HMS FMP, particularly the
effectiveness of minimum sizes to reduce fishing mortality on juvenile
sandbar and dusky sharks, and to determine bycatch and bycatch
mortality of prohibited species and undersized fish. NMFS should
conduct length frequency monitoring on an annual basis.
Response: NMFS agrees that observer coverage, port sampling, and
length frequency monitoring can be important tools in evaluating the
effectiveness of the final actions, including the prohibition on
possession of dusky sharks. One of NMFS' goals is to ensure that
monitoring and observer coverage meet scientific assessment needs. NMFS
[[Page 29107]]
intends to take practicable steps to increase observer coverage.
Comment 5: NMFS should consider regional differences in its
management.
Response: NMFS agrees and has attempted to do so in the development
of the HMS FMP. NMFS believes that the establishment of ridgeback and
non-ridgeback LCS subgroups and the new procedures to adjust for quota
over/underharvest address these concerns.
Comment 6: NMFS received several comments regarding minimum sizes
for sharks, ranging from a minimum size of 4 feet and 4.5 feet for all
sharks, 5 feet for all sharks, 3 feet for all small sharks, 6 feet for
large sharks, 6 feet for mako and thresher sharks, 7 feet for LCS, and
8 feet for blue sharks, and support for using slot limits for sharks.
Response: NMFS agrees with use of minimum sizes as a tool to reduce
effective fishing mortality on sharks. For this tool to be successful,
it must be relatively simple, comprehensive, and enforceable. NMFS has
selected the most efficient minimum size limit for accomplishing the
FMP objectives within these constraints. NMFS may consider additional
management measures, including increasing minimum sizes and slot
limits, in the future.
Comment 7: NMFS should do population assessments in 1999 for
pelagic sharks and in 2000 for SCS.
Response: NMFS agrees that the stock status of pelagic sharks and
SCS should be assessed at the soonest practicable time. The ICCAT SCRS
bycatch subcommittee will be analyzing pelagic shark catch rates in May
1999, and the United States will participate in that meeting.
Additional stock assessments will be conducted as practicable.
Comment 8: NMFS should establish all catch and release or tag and
release fishing for sharks.
Response: NMFS disagrees. NMFS believes that limited harvest of
some sharks subject to reduced retention limits and a minimum size in
commercial and recreational fisheries meet the conservation goals to
rebuild overfished species and prevent overfishing while minimizing
social and economic impacts that an all tag-and-release fishing
requirement would impose.
Comment 9: NMFS should rebuild coastal sharks within 30 years.
Response: NMFS agrees that the 30 year rebuilding program for the
non-ridgeback LCS species outlined in the HMS FMP is appropriate.
However, for the ridgeback LCS species, NMFS believes that a 39-year
rebuilding program is appropriate because of the sandbar shark (the
primary ridgeback LCS) life history.
Comment 10: Analyses of total mortality may be in error if
``catch'' vs. ``harvest'' data are used, especially for sharks.
Response: NMFS agrees and the sections in the final HMS FMP that
describe recreational fisheries, particularly for shark recreational
fishing mortality, have been clarified and uniformly refer to
recreational landings or harvest, not catches, consistent with MRFSS
terminology.
Comment 11: NMFS should dissolve the Operations Team (OT) because
the HMS AP fulfills the OT's role.
Response: NMFS agrees.
Comment 12: NMFS should initiate species identification training
for sharks.
Response: NMFS agrees and intends to increase public education and
outreach including workshops and the production of an identification
guide for all HMS.
Shark Public Display Permitting and Reporting
Comment 1: NMFS should implement the proposed shark EFP process
because it is necessary to track/enforce the regulations.
Response: NMFS agrees.
Comment 2: NMFS should extend the reporting period to 72 hours at a
minimum and ideally to 5 days to allow collectors time to determine
whether the animal can adapt to the aquarium (if not, the animals are
released alive).
Response: NMFS agrees. In the draft HMS FMP, NMFS proposed to
require EFP holders to mail in the information cards for authorized
collections within 24 hours of collection to increase the ability to
track and enforcement of authorized EFP activities. NMFS received
several comments that supported extending the reporting period, and
that were consistent with the intention of selected EFP process.
Therefore, NMFS extends the reporting period to 5 days to allow
collectors time to determine the health of the animal.
Comment 3: NMFS should not require American Zoo and Aquarium
Association (AZA) membership in order to get an EFP because it is
expensive and new aquariums cannot join until they've been open for a
couple of years.
Response: NMFS agrees. The draft HMS FMP did not specifically
propose to require AZA membership in order to receive an EFP, but did
discuss the possibility of linking EFP issuance to AZA membership due
to the detailed protocol and facility requirements for membership. Due
to the inability of new aquariums to obtain AZA accreditation and the
burden and expense of the accreditation process, NMFS will not require
AZA accreditation but will consider AZA accreditation, or equivalent
standards, as meeting the requirement to provide adequate facilities
for animal husbandry (under merits of the application).
Comment 4: NMFS should implement quarterly quotas for EFPs to
ensure fair and equitable allocation of animals under the public
display quota.
Response: NMFS disagrees. The HMS FMP does not establish quarterly
quotas for EFPs because the selected annual quota of 60 mt ww should be
sufficient to ensure fair and equitable allocation. Should the requests
for sharks public display collections increase in the future, NMFS will
reconsider the public display quota at that time.
Comment 5: NMFS should not implement the public display quota
because the take is insignificant, the delays and burden in the current
system are manageable, and aquarium people are honest.
Response: NMFS does not believe that low harvest levels preclude
the need for improvements in monitoring and enforcement capabilities,
where practicable. Regarding delays and burden under current
regulations, NMFS believes that the benefits of increased monitoring
and enforcement capabilities exceed those associated with the status
quo.
Comment 6: NMFS should evaluate an EFP request based on the number
of animals previously collected, not requested.
Response: NMFS believes that both the number of animals previously
requested and collected must be considered in evaluating an
application.
Comment 7: NMFS should not require the use of invasive tags which
can become infected and are unsightly.
Response: NMFS agrees that the least invasive tags are preferable.
NMFS implements the requirement that all sharks harvested under the
selected public display regulations be immediately tagged with a
Hallprint tag issued by NMFS in order to be considered an authorized
collection. The tag may be removed from the animal and kept on file
once the animal is transported to the aquarium where it will be
displayed. NMFS may consider alternative types of tags as costs and
practicalities warrant.
Comment 8: NMFS should develop species-specific public display
quotas, especially for sand tiger sharks.
Response: NMFS agrees that species-specific harvest levels are
preferable and NMFS may develop species-specific harvest levels as data
permit.
[[Page 29108]]
Comment 9: Aquarium personnel should be allowed to remove the tags
when the animal reaches its final destination and to keep the tags on
file.
Response: NMFS agrees and has modified the HMS FMP and final rule
accordingly.
Comment 10: NMFS should keep the status quo system because NMFS has
not given the EFP process, which was new in 1998, a chance to be
evaluated.
Response: NMFS disagrees. The current regulations governing EFP
issuance have been in place, and NMFS has been issuing EFPs for sharks
for the purposes of public display, since 1996. The prohibition on
possession of sand tiger sharks, a popular aquarium species, in 1997
increased the requests and issuance of EFPs for public display in 1997
and 1998. Accordingly, NMFS has had three years to evaluate the current
regulations and believes that the selected public display permitting
and reporting system is preferable because it allows for increased
monitoring and enforcement of the authorized collections.
Comment 11: NMFS should not count animals and tags for fish that
are collected under an EFP but are eventually released alive.
Response: NMFS agrees, as long as the sharks are released alive.
Comment 12: NMFS should establish a separate public display quota
for sharks exported to foreign aquariums.
Response: NMFS disagrees. Sharks harvested in Federal waters in the
Atlantic Ocean, Gulf of Mexico, and Caribbean Sea are taken from the
same stocks regardless of their ultimate destination such that NMFS
does not believe that separate quotas are warranted.
Comment 13: The proposed public display quota of 60 mt ww is
reasonable.
Response: NMFS agrees.
Anti-Finning of Sharks
Comment 1: NMFS should implement the proposed total prohibition on
finning.
Response: NMFS agrees. Extending the prohibition on finning to all
species of sharks will greatly enhance enforcement and contribute to
rebuilding or maintenance of all shark species.
Comment 2: NMFS should not extend the prohibition on finning sharks
because it disadvantages U.S. fishermen relative to foreign competitors
and NMFS should allow a tolerance for blue shark fins to be landed.
Response: NMFS disagrees. Finning of sharks within the Federal
management unit has been prohibited since the original shark FMP was
implemented in 1993 due to excessive waste associated with this
practice. NMFS extends the prohibition on finning to all sharks to
enhance enforcement and facilitate stock rebuilding and maintenance.
Sharks: Prohibited Species
Comment 1: NMFS should implement the prohibitions on possession for
all species proposed as part of the policy change from prohibiting
species that cannot withstand fishing pressure to one allowing
retention of only those species known to be able to withstand fishing
pressure.
Response: NMFS agrees.
Comment 2: NMFS should not include more species into the prohibited
species group because enforcement is a problem and it is difficult to
distinguish certain sharks from each other. Response: NMFS acknowledges
that some of the prohibited species are difficult to distinguish from
species that are allowed to be retained. Regarding problems of
enforcement, additional training and education in shark identification
as well as reducing the number of shark species authorized for
retention may facilitate enforcement. The approach taken in the HMS FMP
should encourage fishermen who have doubts about the identification of
a certain fish to release rather than retain it, thereby reducing
fishing mortality of fish that are difficult to identify.
Comment 3: The proposed additions to the prohibited species list
will increase dead discards because certain sharks are already dead
when gear is retrieved. It would be better to utilize the mortality
than discard.
Response: NMFS acknowledges that, for sharks that come to the
vessel dead, adding them to the prohibited species list will increase
regulatory discards. NMFS also acknowledges that adding such species to
the prohibited species list will prevent utilization of such mortality.
However, the benefits of preventing directed fisheries and/or markets
for species that may not be able to withstand directed fishing pressure
far outweigh the drawbacks of increasing regulatory discards,
especially since NMFS believes that the magnitude of such regulatory
discards is likely to be minor. As these species could have been
retained previously and most have not been landed in large volume to
date (except dusky sharks, see below), NMFS believes that most of these
species are either not currently marketable or are not frequently
encountered.
Comment 4: NMFS received numerous comments on the proposal to add
dusky sharks to the prohibited species management group, including
complete support of the measure as proposed, support of a commercial
prohibition with an allowance for recreational catches if there was a
high minimum size, support of more regional management since the
problems with dusky sharks seem to be mostly in the Atlantic,
opposition to the proposal because current regulations provide adequate
protection, concerns that a dusky shark prohibition will lead to data
degradation because they will be landed as sandbar sharks due to their
high market value, and concerns that a prohibition on dusky sharks for
the Gulf of Mexico will increase waste and regulatory discards because
they all come to the boat dead or because fishermen will discard all
sandbar sharks as well because they cannot be distinguished from dusky
sharks.
Response: By prohibiting possession of dusky sharks, NMFS expects
that fishermen will adjust their fishing activities accordingly.
Further, although many dusky sharks are dead when brought on board the
vessel, some are not dead and requiring their release will reduce
fishing mortality. Additionally, other measures in the HMS FMP will
reduce fishing effort and, therefore, catch. NMFS also notes that dusky
sharks have been placed on the Candidate Species List for the
Endangered Species Act due to their stock status, which further
justifies a prohibition on possession. The most effective way to reduce
fishing mortality would be to prohibit fishing for sharks. However,
NMFS believes that the measures in the HMS FMP will allow rebuilding
while limited commercial fishing for and harvest of sharks can
continue.
Comment 5: NMFS should prohibit the possession of sandbar sharks as
well as dusky sharks because these species are caught frequently in the
same areas on the same gear and because fishermen cannot tell them
apart.
Response: NMFS disagrees that such a measure, which would
essentially close directed commercial shark fisheries, is necessary to
meet conservation goals and rebuild sandbar shark stocks. NMFS believes
that the combination of final actions in the HMS FMP will rebuild
sandbar sharks while allowing limited commercial harvest of sharks to
continue.
Comment 6: NMFS should consider implementing a minimum size and
maximum size for dusky sharks to protect both juveniles and adults.
Since the largest sandbar shark is smaller than the largest dusky
shark, a maximum size limit may allow fishing on all adult sandbar
sharks while limiting fishing on
[[Page 29109]]
dusky sharks to only a portion of the population.
Response: At this time, NMFS believes that a complete prohibition
on dusky sharks is warranted due to their severe population declines
and low reproductive rate. NMFS may consider a minimum and maximum size
limit as appropriate in the future as dusky shark populations rebuild.
Comment 7: Data do not support adding dusky, bignose, and bigeye
thresher sharks to the prohibited species list; just because these
species are not landed does not mean that they are not out there.
Response: NMFS disagrees that data do not support the prohibition
on possession of dusky sharks. Catch rate data indicate large
population declines of dusky sharks since the 1970s and NMFS is
concerned that even bycatch mortality alone may negatively impact this
species' ability to rebuild to MSY levels due to its low reproductive
rate. Regarding the prohibition on possession of bignose and bigeye
thresher sharks, addition of these species to the prohibited species
list is a precautionary measure to ensure that directed fisheries and/
or markets do not develop; the measure is not based on evidence of
stock declines at this time.
Comment 8: NMFS should take longfin mako off the prohibited species
list and add them to the pelagic list.
Response: NMFS disagrees. This species is added to the prohibited
species list because it is not currently landed and including it on the
prohibited species list will ensure that directed fisheries and/or
markets do not develop until it is known that this species can
withstand specified levels of fishing mortality.
Comment 9: NMFS should not prohibit night sharks because data
indicating declines in catches are due to fishermen avoiding areas with
night sharks in order to avoid small swordfish.
Response: NMFS acknowledges that changes in fishing patterns may
affect catches and catch rate data and NMFS has listed this issue as a
research area for further investigation. NMFS disagrees that
prohibiting possession of night sharks based on existing data is
inappropriate at this time; however, NMFS may consider additional
management measures, including removing night sharks from the
prohibited species management group, as data warrant.
Comment 10: NMFS received numerous comments on the proposal to add
blue sharks to the prohibited species management group, including that
NMFS should not add blue sharks to the prohibited species management
group because the catch rate data in the HMS FMP do not warrant a
prohibition, that it is unfair and discriminatory to ban harvest of
blue sharks in the recreational fishery while the commercial fisheries
can kill 273 mt dw of blue sharks through the dead discard quota
contrary to NS 4 and section 304(g) of the Magnuson-Stevens Act, that
blue sharks are one of the last available species for recreational
fisheries as regulations on other species have become more restrictive,
that the prohibition on blue sharks would have significant economic
impacts because numerous tournaments and charter operations in the mid-
Atlantic and northeast target blue sharks, that waste is not as
prevalent as the HMS FMP indicates because some tournaments provide
blue shark meat to food banks and prisons, and that prohibiting blue
sharks will increase regulatory discards, contrary to NS 9.
Response: NMFS agrees that blue sharks should not be added to the
prohibited species management group. As stated in the draft HMS FMP,
NMFS proposed the prohibition on blue sharks to address concerns
regarding the high numbers of blue sharks discarded dead in commercial
fisheries and to create an incentive to reduce blue shark discards
(especially dead discards). NMFS proposed the prohibition on blue
sharks for both the commercial and recreational fisheries to be
equitable to all user groups. However, NMFS received substantial
comments describing the social and economic impacts of the proposal to
prohibit possession of blue sharks. In part due to these comments, the
upcoming ICCAT SCRS meeting to analyze pelagic shark catch rate data,
and the establishment of a blue shark quota against which landings and
dead discards will be counted, NMFS withdraws the proposal and does not
implement the prohibition on possession of blue sharks. By establishing
a blue shark commercial quota and reducing that quota by blue shark
dead discards as well as landings, NMFS hopes to create an incentive to
maximize the survival of blue sharks caught incidentally to other
fishing operations. NMFS will reduce the pelagic shark quota by any
overharvest of the blue shark quota to address concerns that dead
discards of blue sharks can constitute a significant portion of the
pelagic shark quota. If dead discards of blue sharks do not exceed the
selected 273 mt dw quota, the pelagic shark quota would not be
affected.
Comment 11: NMFS should maintain the commercial prohibitions on
those species of concern (like blue sharks) but should allow
recreational harvest with a high minimum size to continue because the
impacts of recreational harvest are so low.
Response: NMFS disagrees. As stated in the draft HMS FMP, NMFS
proposed the prohibition on possession of several shark species for
both the commercial and recreational fisheries to be equitable to all
user groups. While bycatch and bycatch mortality rates may warrant an
analysis of allowing retention of species by some user groups while
denying access to other user groups in the future, NMFS believes that
regulations on retention should apply to all user groups equally at
this time.
Comment 12: Environmental groups should put up some money for a
``dusky fund'' to pay for fishermen to photograph and release all the
dusky sharks they catch.
Response: This comment is not within NMFS' authority to implement.
Commercial Shark Fishery
Comment 1: NMFS should ban commercial fishing for sharks, stop all
sales of sharks caught offshore of the United States, and not allow any
shark parts (especially fins) to be exported or consumed domestically.
Response: NMFS disagrees as noted above(under Shark Fishing Gears).
Comment 2: NMFS' proposed alternatives will destroy the directed
shark fishery and do not provide for sustained participation by
directed shark fishermen and their communities, contrary to NS 8.
Response: NMFS acknowledges that the final actions will likely have
a significant economic impact on some shark fishermen, particularly LCS
fishermen. NMFS specifically chose the final actions, as a group, both
to minimize social and economic impacts to the extent practicable and
to meet the goals of the HMS FMP and the Magnuson-Stevens Act to
rebuild overfished fisheries. The final action attempts to maximize
fishing opportunities while attaining the rebuilding requirements of
the Magnuson-Stevens Act.
Comment 3: NMFS should schedule fishery openings for specified
periods and adjust the season-specific quotas the following year.
Response: NMFS agrees.
Comment 4: NMFS should count dead discards and state commercial
landings made after Federal closure against the quotas.
Response: NMFS agrees.
Comment 5: Counting dead discards and state commercial landings
after Federal closures against the quotas is
[[Page 29110]]
``double-dipping'' in that the assessments already account for dead
discards and state landings and taking them off the quotas will doubly
reduce the quotas.
Response: NMFS disagrees. Dead discards and landings in state
waters after Federal closures are included in the stock assessments
when evaluating stock status and making projections for rebuilding
based on different harvest levels. However, dead discards and landings
in state waters after Federal closures have not been included in
establishing past total harvest levels, which has likely contributed to
the need for recent harvest reductions. If NMFS does not include all
mortalities when establishing harvest levels, actual harvest levels are
set too high and total mortalities exceed levels that would allow
rebuilding.
Comment 6: NMFS should establish a secondary target species quota
for pelagic longline fisheries to allow secondary catches of LCS and
pelagic sharks on pelagic longline vessels to be landed and to reduce
waste.
Response: NMFS agrees that separate quotas or set-asides may be
appropriate for directed and/or incidental fisheries or different
gears. NMFS may consider further subdivisions of available shark quotas
once limited access is implemented and appropriate quotas or set-asides
can be determined.
Comment 7: NMFS should promote fuller utilization of catches
instead of increasing regulatory discards. NMFS should consider
eliminating all discards and requiring fishermen to land all their
catches, which would provide true data and eliminate waste.
Response: NMFS agrees that fuller utilization of catches,
consistent with conservation objectives and other applicable law, is
preferable to regulatory discards. NMFS may consider additional
management measures, including retention of all catches which are
counted against applicable quotas, in the future as appropriate.
Comment 8: Measures for commercial fisheries should not be delayed
pending development of a vessel buyback program.
Response: NMFS agrees.
Comment 9: NMFS should buy back commercial shark vessels.
Response: NMFS has the authority to administer a vessel buyback
program depending on availability of funds.
Comment 10: NMFS should move finetooth sharks from the SCS
management group to the LCS management group.
Response: NMFS disagrees that finetooth sharks should be moved from
the SCS management group to the LCS management group at this time
because finetooth sharks have not been included in the LCS stock
assessments to date. However, NMFS may consider adjustments to
management groups under the framework procedure in the future.
Comment 11: NMFS should implement quarterly quotas to distribute
shark catches more evenly.
Response: NMFS disagrees. The HMS FMP establishes several measures
to address derby fishing conditions and distribution of shark catches.
However, NMFS may consider additional measures, including quarterly
quotas, as appropriate in the future.
Comment 12: NMFS should have its assessments peer reviewed before
taking any further actions, especially since the 1997 regulations are
still the subject of legal review.
Response: NMFS disagrees. The 1998 stock assessment represents the
best available scientific information and peer review prior to
implementing these measures is not necessary.
Comment 13: NMFS should reduce quotas.
Response: NMFS agrees that commercial quota reductions are needed
to rebuild LCS. A commercial quota cap is implemented to prevent
excessive growth in SCS fisheries. NMFS believes that the actions,
including subquotas for porbeagle and blue sharks, under pelagic shark
commercial quotas will meet conservation goals at current quota levels.
Comment 14: NMFS should hold workshops for commercial shark
fishermen using rod and reel.
Response: NMFS agrees. NMFS intends to increase public education
and outreach efforts including workshops for commercial fishermen.
Comment 15: NMFS should not issue any experimental commercial shark
fishing permits because LCS are severely overfished and pelagic and SCS
are fully fished and any new gears will only increase derby conditions.
Response: The status of shark stocks will be considered in
decisions on whether to issue experimental fishing permits in
commercial fisheries.
Large Coastal Sharks
Comment 1: NMFS should establish the proposed ridgeback LCS
subgroup with the 4.5 ft (137 cm) fork length (FL) minimum size and the
non-ridgeback LCS subgroup with the reduced quota of 218 mt dw.
Response: NMFS agrees.
Comment 2: NMFS should close the directed LCS fishery and apply any
available quota for this group to the unavoidable bycatch in the
pelagic longline fisheries for other HMS. If it is concluded that these
actions would preclude rebuilding of the coastal shark stocks, then
neither recreational nor commercial harvest should be allowed until the
stocks are rebuilt.
Response: NMFS disagrees, as noted in the preceding general shark
section.
Comment 3: NMFS should deal with sharks on an emergency basis and
cut the quota in half again.
Response: NMFS is reducing the non-ridgeback LCS and SCS quotas by
66 and 80 percent by weight, respectively, in addition to other
measures (e.g., counting dead discards against the quota) that may
further reduce the LCS, pelagic, and SCS quotas, consistent with the
conservation goals.
Comment 4: The ridgeback LCS quota, in addition to the prohibitions
on possession of dusky and other sharks, may actually increase fishing
mortality on sandbar sharks; NMFS should reduce the quota on ridgeback
LCS in addition to the minimum size.
Response: NMFS is aware that the prohibitions on possession of
dusky and other sharks may increase fishing effort and mortality on
sandbar sharks. However, dusky sharks comprised 2 and 5 percent of
commercial shark landings in 1996 and 1997, respectively, and other
prohibited species comprised less than 1 percent. Therefore, NMFS does
not expect increased effort to be significant because the reductions in
landings due to the prohibition of these species are not large.
Additionally, NMFS believes that the combination of final actions will
sufficiently reduce effective fishing mortality to allow rebuilding of
sandbar and other ridgeback LCS.
Comment 5: The proposed ridgeback vs non-ridgeback separation would
skew the LCS quota toward slower-growing ridgebacks and could be
extremely detrimental to their recovery. Status quo on the LCS
management group except for overall quota levels would be better.
Response: NMFS disagrees. The final actions that establish
ridgeback and non-ridgeback LCS subgroups with separate management is
based in part on the recommendation of the 1998 SEW that ``[e]very
effort should be made to manage species separately.'' These actions do
not manage on an actual species level because NMFS believes that the
identification and enforcement problems of species-specific management
are too great at this time. However, these actions will allow for
management measures to be more tailored to those species complexes
within the larger LCS group with which
[[Page 29111]]
different fisheries interact. These actions will establish higher
harvest levels, but with a minimum size, for the ridgeback LCS than
harvest levels for the non-ridgeback LCS due to the lack of size-depth
segregation of the primary non-ridgeback LCS as well as new biological
data that indicate that blacktip sharks have a lower reproductive rate
than previously thought. For these reasons, NMFS selected a lower non-
ridgeback LCS harvest level than that for ridgeback LCS, and does not
believe that these actions will be detrimental to ridgeback LCS
rebuilding. These separate management measures will allow for more
tailored rebuilding programs than managing all 22 species of the LCS
management group as an aggregate.
Comment 6: NMFS received several comments on minimum sizes for LCS,
including support of the proposed limit, opposition to the proposed
limit, that NMFS should implement species-specific minimum sizes and
not an arbitrary 4.5 ft (137 cm) minimum size, that NMFS should
implement a 120 cm minimum size for ridgeback LCS, that NMFS should
implement a single minimum size for all LCS, and that NMFS should not
implement a minimum size on sharks unless that minimum size is applied
to all fishermen throughout the species' range.
Response: NMFS agrees that a single minimum size for ridgeback LCS
is warranted. A single minimum size of 137 cm FL for all ridgeback LCS,
based on the age at first maturity for sandbar sharks, will afford
year-round protection in Federal waters for the juvenile and subadult
sizes that are the most sensitive to fishing mortality. This minimum
size for the ridgeback LCS subgroup is selected because the sandbar
shark, the primary species in the commercial and recreational
fisheries, segregates by size and depth so that fishing effort can be
concentrated on the less sensitive adults. No minimum size is
implemented for the non-ridgeback LCS subgroup because the primary
species in this subgroup, the blacktip shark, does not segregate by
size and depth such that a minimum size may actually increase effective
fishing mortality (more small fish would be caught and discarded in
order to harvest the same quantity of larger fish). NMFS does not
believe that species-specific minimum sizes are practicable at this
time due to the lack of species-specific biological information on some
species such that the appropriate minimum size is unknown and due to
the practical problems of education and enforcement of multiple minimum
sizes. NMFS believes that establishing a minimum size for ridgeback LCS
is appropriate despite the lack of international management because
strong domestic management is critical to establishing the foundation
for international management and to compliance with domestic law.
Comment 7: Because some small ridgeback LCS will still be caught in
deeper water where they will be regulatory discards, a minimum size
will increase overall mortality rates because at least some of those
small fish will be discarded dead.
Response: NMFS is aware that some undersized ridgeback LCS will
still be caught in commercial fishing operations, which will be
regulatory discards, and that some of these fish will be discarded
dead. As stated in the HMS FMP, NMFS believes that such bycatch and
bycatch mortality will be minimized to the extent practicable due to
the size-depth segregation that sandbar and dusky sharks exhibit that
should allow fishing efforts to concentrate on the mature adults.
However, should the bycatch and bycatch mortality of undersized
ridgeback LCS be higher than anticipated (based on observer data) and
impede or jeopardize rebuilding, then NMFS may consider additional
management measures to address these issues.
Comment 8: The proposed minimum size on ridgeback LCS will increase
waste because many undersized fish come to the boat dead. This also
encourages illegal fishing activity.
Response: NMFS acknowledges that the minimum size on ridgeback LCS
may increase regulatory discards due to the inability of fishermen to
land undersized fish and may increase waste if undersized fish are
brought to the boat dead. As stated in the HMS FMP, NMFS is
implementing a minimum size for ridgeback LCS due to observer data
which indicate that sandbar sharks, the primary target species,
segregate by size and depth so that fishing effort can be concentrated
on adult sharks offshore. This size-depth segregation should minimize
the amount of undersized fish caught and discarded (both dead and
alive) such that regulatory discards and waste should also be
minimized. (Due to the lack of depth-size segregation of the primary
non-ridgeback LCS species, the blacktip shark, NMFS did not propose or
implement a minimum size for this subgroup.) NMFS may consider
additional management measures to address concerns regarding regulatory
discards and waste due to the selected minimum size on ridgeback LCS as
data warrant. Regarding illegal activity, the ridgeback LCS minimum
size should be readily enforceable which should minimize illegal
harvest.
Comment 9: The adoption of a minimum size for ridgebacks is a good
attempt to protect juveniles, but the position of forward measurement
point is too variable. The first anterior cartilaginous dorsal fin ray
(exposed when dorsal fin is removed) would be better.
Response: NMFS agrees and changes the acceptable measurement of a
dressed ridgeback LCS carcass from the first anterior cartilaginous
dorsal fin ray to the precaudal pit or terminal point of the carcass to
determine the size of ridgeback LCS.
Comment 10: NMFS should restore the 1996 quota levels and implement
minimum sizes, time/area closures, and limited access to control effort
instead.
Response: NMFS disagrees. Status quo harvest levels for LCS (which
are 50 percent lower than 1996 harvest levels) would not meet NS 1 to
prevent overfishing and rebuild overfished fisheries. NMFS does not
believe that minimum sizes, time/area closures, and limited access
would sufficiently reduce effective fishing mortality to allow LCS
rebuilding under 1996 quota levels.
Comment 11: NMFS should maintain the ridgeback LCS quota at 642 mt
dw.
Response: NMFS agrees, subject to the final actions to take dead
discards and state landings after Federal closures off Federal quotas
and as reduced by the public display and scientific research quota.
Comment 12: NMFS should not reduce the non-ridgeback LCS quota but
should leave it at 642.5 mt dw.
Response: NMFS disagrees. The final action for non-ridgeback LCS
quota levels included a reduction of 66 percent by weight in part due
to new biological information on blacktip sharks, and the fact that
1997 quota reduction of 50 percent was not as effective as expected.
NMFS believes that without such a reduction in the non-ridgeback LCS
quota, these stocks will not rebuild, contrary to NS 1.
Comment 13: NMFS should phase in the reduction in the non-ridgeback
LCS quota because the 1997 reduction is still under legal review, the
1998 stock assessment for blacktips was poorly founded, and the problem
of Mexican catches has not been addressed bilaterally.
Response: NMFS disagrees. The alternative to phase in the reduction
in the non-ridgeback LCS quota was not selected due to NMFS' concerns
that phased-in quota reductions may not be appropriate for species or
species complexes that require such long rebuilding periods.
Additionally, NMFS
[[Page 29112]]
reduced the LCS commercial landings in 1993 when the original shark FMP
was established and maintained that landings level until 1997 when NMFS
reduced the LCS commercial quota again as an interim measure pending
establishment of a long-term rebuilding program. NMFS believes that the
1993 quota and 1997 interim reduction have already essentially phased
in the reductions necessary for rebuilding LCS and that no further
phase-in is warranted.
Comment 14: Limited access will be ineffective.
Response: NMFS disagrees. NMFS acknowledges that limited access
will not solve all of the problems in the shark commercial fisheries
but believes it is a significant first step in addressing
overcapitalization.
Comment 15: NMFS received comments that the 4,000 lb (1.81 mt)
commercial retention limit for LCS fisheries should be maintained, that
the commercial retention limit is too high, and that the limit will
result in discards.
Response: NMFS believes that the commercial LCS retention limit
helps to extend the LCS seasons and that decreases in this limit may
reduce the profitability of fishing trips and exacerbate derby fishing
conditions. NMFS believes that the benefits of preventing derby fishing
conditions from worsening, despite potentially increasing discards,
outweigh the negative impacts of those discards.
Comment 16: A 0.7-percent return rate of sandbar sharks from Mexico
constitutes a significant source of mortality and NMFS should consider
that mortality in stock assessments.
Response: NMFS did consider Mexican catches of sandbar sharks in
the 1998 SEW. As stated in the 1998 SEW Final Report, catches of LCS in
Mexican fisheries were investigated and results from an intensive
monitoring project of the artisanal shark fishery showed that sandbar
sharks represented only 0.6 percent of the landings numerically. NMFS
believes that these results are illustrative because the artisanal
coastal fishery is estimated to account for about 80 percent of the
total shark production in the Mexican side of the Gulf of Mexico. The
low percentage of sandbar sharks in the Mexican artisanal fishery
landings as well as a relatively low percentage of tag returns from
Mexican waters did not support inclusion of Mexican landings in the
species-specific assessment for sandbar sharks conducted at the 1998
SEW. Should additional information become available indicating that
Mexican catches of sandbar sharks are substantial, NMFS will include
this information in the stock assessments for this species.
Small Coastal Sharks
Comment 1: NMFS received several comments on the SCS commercial
quota including that the lower cap on SCS harvest is good, that NMFS
should set the SCS quota lower than 1997 landings and not higher, that
the 10 percent cap was arbitrary and the SCS stocks are declining, that
NMFS should cap the SCS quota at 1997 levels and not 10 percent above,
and that NMFS should keep the status quo for the SCS quota, at least
until limited access is in place.
Response: A cap on the SCS quota at 10 percent above 1997 levels
will prevent large expansions in the SCS fishery while minimizing
social and economic impacts from other shark management measures
pending additional assessment of SCS stock status. NMFS acknowledges
that the loss of opportunity for substantial fishery expansion may have
negative social and economic impacts. NMFS notes that the best
available data on SCS indicate that catch rates for Atlantic sharpnose
sharks, the dominant species in this management group, are not
declining. Regarding the comment to cap the SCS at 1997 levels, not 10
percent above, NMFS notes that this measure is precautionary and that
1998 fishing levels may have increased (1998 landings data are not yet
available). A commercial quota cap 10 percent above 1997 levels will
minimize negative social and economic impacts if 1998 harvest levels
exceeded 1997 levels. NMFS disagrees that status quo for the SCS quota
is appropriate because the current quota is based on MSY levels from
the assessment that supported the original shark FMP. Concerns have
been raised by members of the HMS AP and members of the public that the
assessment in the original shark FMP was overly optimistic in its
estimation of SCS intrinsic rates of increase and the subsequent levels
of fishing mortality that this group can withstand. The final action to
cap the SCS quota is selected because of these concerns, because
commercial fishery landings statistics may substantially underestimate
fishing mortality due to the use of SCS as bait that are not reported
as landings, and because it eliminates the potential for excessive
growth.
Comment 2: NMFS should require species-specific reporting of all
SCS catches, landings, and disposition of the catch to determine the
extent and impacts of SCS being used for bait.
Response: NMFS agrees that additional reporting and observer
coverage may be necessary to determine the magnitude of ``cryptic
mortality'' of SCS due to the use of SCS as bait. Charter/headboat
logbooks and voluntary observers will help collect data on this issue
in recreational fisheries. NMFS may consider additional management
measures to address this issue.
Pelagic Sharks
Comment 1: NMFS should keep the status quo for the pelagic shark
quota because NMFS should not implement any precautionary caps or get
out in front of international management, which will disadvantage any
future U.S. allocation and/or influence.
Response: NMFS believes that precautionary measures for pelagic
sharks are warranted due to concerns regarding the sustainability of
current fishing mortality rates and the potential for increased fishing
effort on those species known to have limited capacity to withstand
fishing pressure (e.g., porbeagle sharks). The final actions to
establish a species-specific quota for porbeagle sharks at 10 percent
higher than recent landings, to reduce the pelagic shark quota by the
porbeagle quota, to establish a quota for blue sharks, and to reduce
the pelagic shark quota by any overage of the blue shark quota, are
primarily precautionary and do not substantially alter the status quo
for pelagic sharks. Breaking out the porbeagle quota does not reduce
overall harvest levels for pelagic sharks and the pelagic shark quota
will only be reduced if blue shark landings and dead discards exceed
273 mt dw. Since the majority of blue sharks are released alive and
anecdotal evidence indicates that many of the blue sharks released dead
could be released alive if fishing practices were altered slightly,
NMFS believes that the incentive to maximize blue shark survival may
result in the blue shark quota not being exceeded and the pelagic shark
quota not being reduced. Therefore, these final actions may not
substantially alter the status quo but would still establish mechanisms
to address fishing mortality rate and bycatch and bycatch mortality
concerns in the future. Regarding comments that the United States is
getting ahead of international management and disadvantaging U.S.
fishermen, NMFS believes that precautionary steps are appropriate even
in the absence of international management because preventing
overfishing will help ensure that U.S. fishermen are not disadvantaged
due to stock declines. Additionally, by taking initiatives for
conservation measures, NMFS will have a stronger position at the
international table when discussing rebuilding and
[[Page 29113]]
maintaining shark stocks subject to international fishing.
Comment 2: NMFS received several comments on the proposed porbeagle
quota including that NMFS should cap the porbeagle quota at the highest
landings and not at 10 percent above, and that NMFS should establish a
porbeagle quota but reduce it from recent landings to allow rebuilding.
Response: NMFS disagrees. Similar to the rationale for a commercial
quota cap for SCS at 10 percent above 1997 levels (the year of highest
recorded landings), capping the porbeagle quota at 10 percent above the
highest landings level will prevent large expansions in the porbeagle
fishery while minimizing social and economic impacts pending additional
assessment of porbeagle stock status. NMFS acknowledges that the loss
of opportunity for substantial fishery expansion may have negative
social and economic impacts. Additionally, NMFS notes that porbeagle
sharks, as part of the pelagic shark management group, are considered
fully fished and that this measure is precautionary and 1998 fishing
levels may have increased (1998 landings data are not yet available).
Comment 3: NMFS' data on porbeagle sharks are incomplete and
substantially underestimate landings.
Response: NMFS has updated the reported landings of porbeagle
sharks since the proposed rule, and adjusted the porbeagle quota in the
final rule, to establish the porbeagle shark quota at 92 mt dw. NMFS
intends to investigate further porbeagle shark landings statistics and
may adjust the quota in the future as the data warrant.
Comment 4: Establishment of a species-specific quota for porbeagle
sharks will create a porbeagle derby.
Response: NMFS disagrees. The selected porbeagle shark quota is 10
percent higher than the highest reported landings such that a derby
fishery resulting from restrictive quotas is not expected to develop.
Nevertheless, given other restrictions on shark fishing, there may be
increased fishing pressure on porbeagle sharks, and if so, NMFS will
address this in the future.
Comment 5: NMFS' approach in establishing precautionary quotas is
inconsistent because the porbeagle and SCS quotas are 10 percent higher
than highest landings and the blue shark dead discard quota is the
average of 10 years. NMFS should establish a 500 mt quota on blue shark
landings with a 273 mt dw dead discard cap, and a 250 mt dw quota for
porbeagle sharks with 30 mt dw allocated for incidental catches.
Response: NMFS did take different approaches in establishing the
precautionary quotas for porbeagle and SCS and for the proposed blue
shark dead discard quota due to the differences in the fisheries. For
porbeagle and SCS, NMFS proposed and implements quotas that are 10
percent higher than the highest reported landings because the intention
of these measures is to prevent excessive fishery expansion pending
additional stock assessments. Therefore, NMFS believes that essentially
capping effort is appropriate at this time. On the other hand, the
proposed blue shark dead discard quota was intended to create an
incentive to maximize the survival of all blue sharks caught
incidentally to other fishing operations while minimizing social and
economic impacts and reducing regulatory discards, consistent with the
proposal to count dead discards against quotas. In this case, estimates
of blue shark dead discards have ranged from approximately 20 to 98
percent of the pelagic shark quota and establishing a dead discard
quota 10 percent higher than the highest year's discards would be
ineffective in maximizing blue shark survival. Therefore, NMFS proposed
to establish a blue shark dead discard quota equivalent to the average
of the last 10 years dead discards as a means to create an effective
incentive to maximize blue shark survival since the potential for
pelagic shark quota reductions due to excessive blue shark dead
discards was real. Note that NMFS' final action regarding blue sharks
is different than that proposed.
NMFS believes that separate quotas for blue and porbeagle sharks
are appropriate but believes that quotas of 773 mt dw and 280 mt dw for
blue and porbeagle sharks, respectively, are too high, pending
additional stock assessments. NMFS selected 273 mt dw and 92 mt dw for
blue and porbeagle sharks, respectively, based on the average of recent
dead discards for blue sharks and updated data for porbeagle sharks.
Comment 6: NMFS received numerous comments on the proposed dead
discard quota for blue sharks including that dead discards of blue
sharks should be placed under the pelagic shark quota, that the pelagic
shark quota should not be increased to allow for dead discards of blue
sharks, that a ``dead discard quota'' goes against the mandates of the
Magnuson-Stevens Act and NS 9 to reduce and/or eliminate bycatch and
bycatch mortality, that NMFS should encourage full utilization of
unavoidable mortality and not require discards, that most blue sharks
are released alive anyway, and that NMFS should establish a quota for
landings and dead discards of blue sharks to reduce data degradation
and underreporting.
Response: NMFS establishes a quota for blue sharks of 273 mt dw
with any overharvests to come off the pelagic shark quota, in part to
create an incentive to reduce blue shark discards, especially dead
discards. If NMFS were to take all blue shark dead discards off the
pelagic shark quota, the magnitude of reductions in the pelagic shark
quota might result in a ``vicious cycle'' in which the entire pelagic
shark quota would become regulatory discards, contrary to NS 9. Because
blue sharks are caught incidentally in fisheries targeting other
species, blue sharks will continue to be caught and some discarded
dead. By creating an incentive to reduce blue shark dead discards, this
action may result in changes in fishing practices that increase blue
shark survival rates. NMFS acknowledges that establishing a quota for
blue sharks of 273 mt dw may be interpreted as increasing the pelagic
shark quota; however, NMFS notes that the pelagic shark quota
established in the original shark FMP was based on landings of pelagic
sharks from 1986-1991 and that blue sharks landings have ranged from 1-
5 mt dw, such that the original pelagic shark quota did not account for
blue shark catches and discards.
Comment 7: NMFS should require all live blue sharks be released
with a dehooking device.
Response: NMFS currently requires that all sharks not retained be
released in manner that ensures the maximum probability of survival.
Further, NMFS intends to encourage use of dehooking devices as part of
its outreach and education efforts.
Comment 8: Prohibiting possession of blue sharks in recreational
fisheries but allowing commercial fisheries to kill 273 mt dw violates
NS 4 and section 304(g) of the Magnuson-Stevens Act.
Response: NMFS agrees that the proposals to prohibit possession of
blue sharks in both commercial and recreational fisheries and establish
a blue shark dead discard quota may have resulted in perceived
inequities among user groups. NMFS proposed the prohibition on
possession for all fisheries because of concerns that blue sharks could
quickly become overfished if directed markets or fisheries developed
for them. NMFS proposed to establish a dead discard quota for blue
sharks because, in combination with the alternative to count dead
discards against quotas, dead discards of blue sharks alone could
reduce the entire pelagic shark quota to regulatory discards, contrary
to NS 9. However, in
[[Page 29114]]
part due to comments received during the public comment period, NMFS
has reconsidered the alternatives for blue sharks and has determined
that the combination of withdrawing the proposal to prohibit possession
of blue sharks (i.e., allowing retention), establishing a quota of 273
mt dw for blue sharks against which commercial landings and dead
discards would be counted, and reducing the recreational retention
limit for all sharks with the addition of a minimum size will meet the
conservation objectives of preventing overfishing, establish mechanisms
to implement management measures consistent with the precautionary
approach, reduce regulatory waste and discards consistent with NS 9,
and promote fair and equitable allocation of resources among user
groups consistent with NS 4 and section 304(g) of the Magnuson-Stevens
Act.
Comment 9: NMFS should not establish species-specific quotas for
species of concern but should use target catch requirements to control
expansions of landings of incidental catches.
Response: NMFS disagrees that species-specific quotas are
inappropriate tools to control fishery expansions but may consider
target catch requirements in the future.
Shark Recreational Fishery
Comment 1: NMFS received considerable comments on the proposal to
establish catch and release fishing only for all LCS and SCS, including
that NMFS should stop all shark harvest in both commercial and
recreational fisheries if the recreational fishery must be closed, that
the numbers in recreational and commercial shark fisheries do not
support a zero bag limit for recreational shark fisheries while still
allowing commercial harvest, that NMFS should not reward fishermen who
did the damage and penalize historic recreational fishermen, that the
recreational bag limits for sharks unfairly impact recreational
fishermen and are discriminatory against recreational fishermen, which
violates NS 4 and section 304(g), and that recreational fishermen are
bearing the brunt of shark conservation.
Response: NMFS proposed catch and release only fishing for all LCS
and SCS due to the reductions in recreational harvest needed for LCS
under the rebuilding program (about 80 percent), the fact that post-
release mortality of sharks in recreational fisheries is unknown, and
the continued widespread misidentification of juvenile LCS as SCS.
However, in part due to comments received, NMFS has reconsidered the
combination of actions analyzed for recreational retention limits and
has determined that a recreational retention limit of one shark per
vessel per trip with a 4.5 ft (137 cm) minimum size, and an allowance
of one Atlantic sharpnose shark per person per trip (no minimum size)
should meet NS 1 to rebuild overfished fisheries for LCS and address
the difficulties in enforcement and continued widespread
misidentification of juvenile LCS and SCS. NMFS believes that the final
action provides access fairly and equitably to recreational fishermen
(in all geographic regions) and commercial fishermen, consistent with
conservation goals and NS 4. Regarding comments that recreational
fishermen are bearing the brunt of shark conservation, NMFS notes that
numerous final actions will establish substantial additional
restrictions and negatively impact commercial fishing sectors.
Comment 2: NMFS received considerable comments regarding
recreational retention limits and minimum sizes, ranging from support
for the status quo of 2 sharks per trip with an allowance for 2
Atlantic sharpnose sharks per person per trip, 2 sharks per day, 1
pelagic shark per vessel per day regardless of species, 1 LCS per
vessel per day, 1 mako shark per angler, 1 shark per vessel per trip
and 1 Atlantic sharpnose per person per trip, 1 LCS and 1 pelagic shark
per trip with a 4.5 ft (137 cm) minimum size, 2 SCS per trip and 2
Atlantic sharpnose per trip, 1 shark per person with a maximum of 2
sharks per vessel like the Florida regulations, 2 sharks per trip but
no more than one shark of any species, 2 sharks per person per day for
all species, no limits on retention for blue sharks, as well as 4.5 ft
(137 cm), 6 ft (182 cm), and 300 pound (136 kg) minimum sizes for all
sharks.
Response: In part due to public comments received, NMFS has
reconsidered the proposed recreational shark fishing restrictions and
has determined that a recreational retention limit of 1 shark per
vessel per trip with a minimum size of 4.5 feet (137 cm) FL and 1
Atlantic sharpnose shark per person per trip (no minimum size) will
reduce recreational harvests by the approximately 80 percent necessary
to rebuild LCS and prevent overfishing of pelagic and SCS, while also
minimizing social and economic impacts.
Comment 3: NMFS should not implement a zero recreational limit for
sharks and the proposed recreational limits do not provide access to
comparable substitute species for the southeast. Anglers in the
Southeast Atlantic do not target pelagic sharks but target SCS. Pelagic
sharks are an unusual catch because they occur too far offshore (about
80 miles to Gulf Stream) and small open boats can't go that far, which
may violate NS 10. A lot of anglers cannot safely reach shortfin mako,
oceanic whitetip, and threshers. The proposed recreational limits are
biased toward the known NE shark fishery, contrary to NS 4.
Response: NMFS agrees that the proposed alternative may have
differentially impacted anglers by region in that pelagic sharks are
more northern in their distribution, and nearshore anglers who could
not expand their fishing into offshore waters where pelagic sharks
predominate. In part due to these comments, NMFS has reconsidered the
combination of actions analyzed for recreational retention limits and
has determined that a recreational retention limit of one shark per
vessel per trip with a 4.5 ft (137 cm) minimum size and an allowance of
one Atlantic sharpnose shark per person per trip (no minimum size)
should meet NS 1 to rebuild overfished fisheries for LCS and prevent
overfishing for the fully fished pelagic and SCS. The final action will
also address the difficulties in enforcement and continued widespread
misidentification of juvenile LCS and SCS by essentially establishing
catch and release fishing only for juvenile LCS under the selected
minimum size and by allowing retention of Atlantic sharpnose sharks, a
SCS species easily identified by white spots on the dorsal side. As
many SCS do not reach the selected minimum size, the final action also
essentially establishes catch and release only fishing for SCS, except
for Atlantic sharpnose. NMFS believes that the final action will
provide access to the recreational fishery for anglers in the southeast
and Gulf of Mexico regions, consistent with conservation goals and NS
4. NMFS also believes that the final action will provide access to
nearshore anglers by allowing retention of species available in these
areas, consistent with conservation goals and NS 10.
Comment 4: NMFS received several comments on allocation of shark
harvest including that NMFS should restore sharks to historic 98
percent recreational catch, that NMFS should allocate shark harvest for
recreational fisherman based upon the average landings occurring during
the past 3 years (1995-97), that the total allowable take of sharks
should not be increased so the commercial allocation should be
diminished by an amount equal to the recreational allocation, that NMFS
should allocate shark harvest for recreational fishermen based on the
last
[[Page 29115]]
18 years of landings by number, which will equal about two-thirds of
the allowable harvest, and that NMFS should not base management and
rebuilding on a single year but should base allocation on a 10-15 year
time period.
Response: NMFS believes that the LCS rebuilding program, with
commercial and recreational harvest levels determined by recent harvest
as reduced by rebuilding program measures (described in the HMS FMP and
based on the 1998 SEW), is appropriate and will meet NS 1 to rebuild
the overfished LCS and prevent overfishing of pelagic and SCS. NMFS
believes that allocating 98 percent of shark harvests to recreational
fisheries would not account for traditional fishing patterns, would not
be fair and equitable, and would not provide for the sustained
participation of communities associated with commercial fisheries.
Regarding the time period on which management and rebuilding should be
based, NMFS believes that the final action, which uses 1995 as a
reference point for rebuilding, is appropriate. NMFS reduced the quotas
and retention limits based on the 1996 stock assessment, consistent
with the allocations established in the 1993 Shark FMP which were based
on several years of data. The rebuilding program established in the HMS
FMP builds on the 1996 assessment and 1997 quota and retention limit
reductions. In establishing the rebuilding program, NMFS analyzed the
effectiveness of the 1997 reductions and any additional reductions
necessary to rebuild LCS consistent with the Magnuson-Stevens Act.
Therefore, the allocations of shark harvest in the HMS FMP are
appropriate and reasonable. Regarding the allocation of shark harvest
between recreational and commercial sectors, the final actions in the
HMS FMP will provide access fairly and equitably to both sectors,
consistent with conservation goals.
Comment 5: NMFS received several comments on the proposal to
require all sharks landed by recreational anglers to have the heads,
fins, and tails attached, including support for the proposal, that NMFS
should require anglers keep the heads and fins onboard but should not
require the fish to kept whole because of problems with seafood safety
from inadequate freezing, that NMFS should allow anglers to fillet
sharks at sea as long as the tails and claspers are retained, and that
the requirement for recreational fishermen only is unfair and should be
applied to both recreational and commercial fishermen.
Response: While these comments warrant further consideration, NMFS
adopts the requirement for recreational fishermen to keep sharks intact
while not imposing a new requirement for commercial fishermen at this
time. When the Shark FMP was implemented in 1993, commercial fishermen
were allowed to remove and discard heads, tails, and fins and to fillet
the sharks at sea to allow more of the available vessel hold capacity
to be used for storing the shark carcasses that eventually would be
sold. A prohibition on filleting sharks at sea for commercial fishermen
was implemented in 1997 in order to improve species-specific
identification of carcasses at the dock. The basis for this provision
may have changed, but additional public discussion is needed before the
regulations are modified. While NMFS strives for consistent regulations
for all user groups, concerns about quality and safety of seafood sold
for public consumption resulting from inadequate freezing of shark
carcasses preclude a similar regulation for commercial shark fisheries
at this time. Because individual recreational shark fishermen harvest
smaller quantities of sharks per trip and take shorter fishing trips
relative to commercial operations, recreational fishermen should be
able to adequately ice shark carcasses so as not to compromise seafood
safety. Requiring recreational fishermen to keep sharks intact will
address continued widespread problems with species-specific
identification of sharks in recreational fisheries, decrease
enforcement costs, and facilitate species-specific assessments and
management.
Comment 6: NMFS has repeatedly ignored requests to implement
conservation measures for mako sharks and NMFS should fully protect
shortfin makos because their stocks are down.
Response: NMFS is aware that anecdotal evidence regarding catches
and catch rates of shortfin mako sharks indicates that the stock size
may be declining. Accordingly, the United States will be participating
in the ICCAT SCRS meeting to assess catch rates of pelagic sharks in
May 1999. Pending the outcome of that meeting and other assessments of
shortfin mako stock size, NMFS believes that the final action to reduce
the recreational retention limit to one shark per vessel per trip with
a 4.5 ft (137 cm) minimum size will provide additional protection for
this species. NMFS may consider additional management measures,
including alternative length or weight based minimum sizes or
prohibitions on possession, in the future as necessary.
Comment 7: NMFS should consider a 250-300 lb (113-136 kg) minimum
size for blue sharks.
Response: Additional management measures for blue sharks, including
a species-specific minimum size, may be warranted and NMFS may consider
such a measure in the future.
Comment 8: NMFS should reduce the Atlantic sharpnose retention
limit pending additional stock assessments.
Response: NMFS agrees.
Comment 9: NMFS should encourage voluntary release of sharks.
Response: NMFS agrees. NMFS supports all voluntary release of
sharks and intends to develop a public education and outreach program
that will encourage catch and release and tagging of all released
sharks as part of the implementation of this HMS FMP.
Comment 10: NMFS should restrict all recreational fishing to catch
and release only during the spring pupping seasons.
Response: The final action to establish a recreational retention
limit of one shark with a 4.5 ft (137 cm) minimum size is expected to
meet NS 1 to rebuild overfished fisheries for LCS, as the minimum size
will more effectively address the issue of bycatch of juvenile sharks
by affording them protection at all times and areas.
Comment 11: NMFS should reduce the LCS recreational retention
limits but allow recreational fishermen to continue to target blacktip
and spinner sharks.
Response: The final action allows recreational fishermen to target
all but the prohibited species of sharks subject to the retention limit
of one shark per vessel per trip and the 4.5 ft (137 cm) FL minimum
size.
Comment 12: NMFS should not allow more than 2 hooks per line.
Response: Modifications in fishing practices, including limits on
the number of hooks per line, may reduce mortality of released fish.
NMFS may consider such management measures in the future through the
framework provisions.
Comment 13: NMFS should consider male harvest only to protect
mature females. It is easy to tell male from female sharks.
Response: NMFS agrees that male only harvest is a potential
management measure that could protect mature females and could be
enforced if the male claspers were intact. NMFS may consider additional
management measures, including male only harvest, if the final
recreational retention limits and restrictions on possession at sea and
landing actions do not meet NS 1 to rebuild overfished fisheries for
LCS, prevent overfishing for the fully fished
[[Page 29116]]
pelagic and SCS, and address the difficulties in enforcement and
continued widespread misidentification of juvenile LCS and SCS as
expected.
General Comments on Bycatch Reduction
Comment 1: NMFS' plan is not consistent with NS 9 to minimize
bycatch and bycatch mortality, to the extent practicable.
Response: NMFS disagrees. Numerous measures in the HMS FMP and
Billfish Amendment improve NMFS' ability to monitor, control, and
account for bycatch in estimates of total mortality. NMFS is pursuing
gear modifications to reduce bycatch and a time/area closure to reduce
BFT discards. NMFS is also reducing quotas in directed fisheries,
implementing limited access, and planning educational workshops to
minimize bycatch mortality. Further, NMFS seeks to count dead discards
against the quota, which will create an incentive for fishermen to
avoid bycatch species, to the extent that they can. Also, NMFS is
developing larger time/area closures in order to protect small
swordfish and other bycatch and will present these ongoing analyses to
the HMS and Billfish Advisory Panels in June 1999, before publishing a
proposed rule in Summer 1999. NMFS has increased reporting requirements
in order to collect additional data on bycatch mortality in HMS
fisheries. The effectiveness of the bycatch reduction strategy will be
assessed annually in the SAFE report and necessary modifications can be
made through the framework.
Comment 2: Commercial fishermen should have to retain all fish that
are dead when handled. This would be counted against their retention
limit or quota.
Response: NMFS adopted minimum size limits for yellowfin, bluefin,
and bigeye tunas, and swordfish, and ridgeback large coastal sharks in
order to discourage fishermen from targeting small fish. NMFS intends
that ultimately all dead discards of each species will be counted
against any quotas that may apply.
Comment 3: Bycatch and bycatch mortality in the recreational
fishery could never be analyzed and could never be truly known and
therefore should not be addressed in this FMP.
Response: NMFS disagrees. NMFS has identified the examination of
post-release mortality in all hook and line fisheries, recreational and
commercial, as a research priority. Further, NMFS subscribes to the
precautionary approach and intends, once it can be quantified, to
account for post-release mortality in all HMS fisheries.
Comment 4: Many different comments were submitted regarding
workshops and other outreach to fishermen: NMFS should require
mandatory attendance of permit holders at vessel education workshops to
inform fishery participants of bycatch and bycatch mortality reduction
techniques. NMFS has already begun the workshops even though no take
reduction plan is in place. If fishermen have to attend workshops, they
should be compensated for a missed day of work. Fishermen at the
workshops know more about releasing fish, turtles, and mammals than the
people presenting the workshop. NMFS should use television fishing
shows to promote the bycatch mortality reduction strategy for HMS.
Response: NMFS thinks that outreach may be more useful if the
program is voluntary. This will allow NMFS to offer workshops as well
as informal meetings with fishermen to share recent information on
bycatch reduction strategies and new techniques that may be working in
other fisheries and to get feedback from fishermen. NMFS has begun the
workshops with several objectives in mind; marine mammal bycatch
reduction is only one of those objectives. Other reasons for the
workshops have included collection of views on comprehensive management
systems for pelagic longline fishery management. NMFS agrees that
fishermen have considerable expertise in releasing large animals at
sea. However, the presenters at the workshops will also be providing
information on successful methods used in other longline fisheries
(e.g., the Pacific swordfish fishery) and can convey information about
new research results which may help fishermen avoid bycatch species.
NMFS appreciates the suggestion of using television and will consider
that medium in the future for developing and distributing information
about reducing bycatch and bycatch mortality.
Comment 5: NMFS should establish a target and timetable for
reducing bycatch (e.g., 25-75 percent reduction in 5 years) and
implement that bycatch plan through time/area closures, gear
restrictions and counting dead discards against quota.
Response: This FMP implements a number of measures designed to
reduce bycatch and bycatch mortality, including gear modification,
quota reductions, a time/area closure, and educational outreach
programs, as noted above. Limited access to some of the HMS fisheries
may also change the nature of these fisheries. NMFS will evaluate
bycatch rates once limited access and these bycatch measures, and an
upcoming proposed time/area closure to protect swordfish are
implemented in these fisheries before setting targets and timetables
that could otherwise be unrealistic.
Comment 6: Take reduction measures designed to reduce marine
mammal bycatch should not be implemented in this plan under the
authority of the Magnuson-Stevens Act. A future take reduction team for
pilot whales would likely include representatives from the trawl and
pelagic longline fisheries. Because the HMS Division does not cover the
trawl fishery and if changes are needed in regulations, it will be
easier to make those changes under the MMPA than to amend multiple
fishery management plans.
Response: NMFS disagrees. NMFS needs to consider cumulative impacts
of all regulatory measures on fishermen and the ecosystem as required
under legislative mandate. Therefore, it is very useful to consider the
take reduction measures in the context of other measures in this plan.
Some take reduction measure can be amended by framework measure (e.g.,
gear modifications, time/area closures), instead of an amendment to the
plan. Measures that apply to other Federal fisheries, including the
squid, mackerel, and butterfish trawl fishery can also be implemented
by the appropriate fishery management plan if NMFS sees fit. NMFS seeks
to conserve marine resources in an ecosystem approach, including all
bycatch species.
Comment 7: Strategies proposed by the Atlantic Offshore Cetacean
Take Reduction Team (AOCTRT) more than 2 years ago are outdated and
ineffective. Rather than publish a plan at this late date, NMFS should
reconvene a new team, including other representatives from other
fisheries that interact with the same marine mammal stocks.
Response: In this action, NMFS will implement several of the
measures recommended by the AOCTRT to reduce incidental mortalities and
serious injuries of pilot whales in the pelagic longline fishery. NMFS
intends to reconvene the AOCTRT to review updated information regarding
pilot whales, and to solicit updated recommendations for the pelagic
longline fishery. At that time, recommendations to include other
fisheries in the take reduction process will be considered.
Comment 8: AOCTRT measures are unfair. Whales have changed their
feeding behavior in response to the number of longlines in the water.
They now teach their young to take advantage of the fish on the
longline.
[[Page 29117]]
Response: If the take reduction team is reconvened, the team might
consider available information from fishermen on this feeding behavior.
In the interim, fishermen should do all that they can to reduce
interactions with whales.
Comment 9: Instead of restricting fishermen, who take relatively
few whales, NMFS should shut down shipping and control the actions of
the U.S. Navy to reduce interactions with large whales.
Response: NMFS is also concerned about adverse effects to whales
caused by the shipping industry and ship operations of other federal
agencies, including the U.S. Navy. NMFS has taken a number of actions
to reduce the likelihood of ship strikes. NMFS collaborates with the
U.S. Coast Guard, U.S. Navy, Army Corps of Engineers, as well as state
agencies and other organizations to alert ship traffic in U.S. coastal
waters to the presence of whales. Additionally, NMFS is required to
provide biological opinions on activities of federal agencies that
might adversely affect endangered species. Other actions include:
regulations that prohibit all approaches within 500 yards (459 m) of
any right whale; work toward the development of cooperative agreements
with individual shipping companies to examine voluntary measures ships
might take to reduce the possibility of ship strikes; and beginning
July 1999, a mandatory right whale ship reporting system that will
provide information on right whales directly to mariners as they enter
right whale habitat and use incoming reports to assist in identifying
measures to reduce future ship strikes.
Comment 10: NMFS chooses a definition of bycatch that is not
consistent with the Magnuson-Stevens Act. Specifically, NMFS defines
fish that are caught and released by recreational fishermen as bycatch.
Response: NMFS' definition is consistent with the Magnuson-Stevens
Act. However, as described in the Billfish Amendment, NMFS does not
consider released live billfish to be bycatch because the Amendment
establishes a catch and release program for billfish released in the
recreational fishery.
Comment 11: Atlantic Billfish released alive by recreational
fishermen should not be considered bycatch because bycatch is
undesirable and should be eliminated or minimized according to NS 9,
while the live release of billfish is an encouraged practice.
Response: NMFS agrees. Recreational anglers have voluntarily
reduced landings of Atlantic billfish since the 1988 Atlantic billfish
FMP, becoming essentially a catch-and-release fishery. NMFS realizes
that live release of billfish is a beneficial practice and believes
that establishing a catch-and-release fishery management program will
further foster the already existing catch-and-release practices of
recreational billfish fishermen. As a result of the establishment of
this Program, all Atlantic billfish that are released alive, regardless
of size, are not considered as bycatch, within the constraints of the
Magnuson-Stevens Act and the NSGs. This decision is consistent with NS
9, the eleventh objective of this FMP amendment, and the 1997 ICCAT
recommendation to promote the voluntary release of Atlantic blue and
white marlin. It is also important to note that mortalities associated
with all catch-and-release events must still be quantified, with
results included in assessment of the stocks.
Comment 12: The draft FMP amendment fails to reduce the most
obvious cause of billfish mortality, which is pelagic longline fishing.
NMFS should ban the use of pelagic longline gear inside the U.S. EEZ to
eliminate billfish bycatch, and the United States should work through
ICCAT to ban the use of this gear throughout the Atlantic Ocean.
Response: NMFS disagrees. Following precedents set in other
fisheries, the final FMP amendment indicates that billfish bycatch in
the pelagic longline fishery is managed by the HMS FMP because the HMS
fisheries are the target fisheries for that gear. The FMP amendment
also identifies a final action to establish an Atlantic billfish
bycatch reduction strategy, using six management measures implemented
in the HMS FMP. This bycatch reduction plan takes a holistic approach
in complying with NS 9 to reduce, to the extent practicable, all
bycatch in the pelagic longline fishery. The effectiveness of the
bycatch reduction measures will be evaluated annually as part of the
Stock Assessment and Fishery Evaluation (SAFE) report for Atlantic
billfish and HMS fisheries. An annual appraisal will include
examination of current programs and research to see if Atlantic
billfish bycatch can be reduced further, to the extent practicable.
Further, banning all U.S. longline fishing in and of itself would not
rebuild Atlantic billfish stocks. A much larger reduction in Atlantic-
wide landings would be necessary, as discussed under comment 1 in this
section. A consequence of a ban of U.S. pelagic longline fishing would
likely be an increase in foreign effort to fill the supply of tuna and
swordfish historically provided by U.S. commercial fishermen, who are
required to discard all billfish caught. Since foreign vessels retain
billfish, an Atlantic-wide increase in billfish landings could be a
direct result of increased foreign fishing activities. In addition,
NMFS must comply with the Magnuson-Stevens Act, which specifies that
NMFS must provide fishing vessels of the United States with a
reasonable opportunity to harvest any allocation or quota of an ICCAT
species agreed to by the United States.
Comment 13: NMFS needs to examine gear modification as a mechanism
to reduce billfish bycatch.
Response: NMFS agrees. Gear modification is part of the billfish
bycatch reduction strategy that is based on management tools available
in the final HMS FMP. Additional research on the use of gear and gear
configurations to specifically address minimizing bycatch and bycatch
mortality is needed prior to implementation for the control of bycatch
mortality. The HMS FMP will be the regulatory medium to implement gear
modification measures, through the framework process, as new
information becomes available.
Gear Modifications
Comment 1: NMFS received numerous comments regarding gear
modifications in the pelagic longline fishery to reduce bycatch
mortality. These comments included support for: (1) reduced soak time,
(2) limited length of mainline, (3) limited number of hooks, and (4)
mandated circle hooks. Comments also indicated that some of these
measures are difficult to enforce and therefore, should be voluntary
measures.
Response: NMFS and the AP considered many of these gear
modifications in an earlier draft of the HMS FMP. NMFS rejected many of
these alternatives in favor of voluntary measures and increased
research on gear modifications.
Comment 2: The proposed limit to the length of mainline is not
likely to reduce bycatch mortality of mammals if the data indicate that
many fishermen already have lines that short.
Response: NMFS is implementing this measure to set an interim cap
on the length of mainline until the take reduction team reassesses the
need for other measures.
Comment 3: The measure to require longline vessels to haul their
gear in the order it was set should not be implemented.
Response: NMFS agrees. This measure is difficult to enforce and
observer data are not explicit about how the gear is set and hauled. If
the take reduction team
[[Page 29118]]
meets again and continues to support this measure, NMFS can do a post-
trip interview with observers to get a better idea of how many vessels
already do this. Also, NMFS remains concerned about potential safety
implications for vessels as this measure may cause them to increase the
amount of fuel they carry to accommodate for the extra transit time.
Conversely, if vessels do not carry more fuel, this measure may have
increased economic impacts as trips would have to be shortened.
Comment 4: NMFS should not require the use of circle hooks in the
recreational fishery; NMFS should require all recreational anglers to
use circle hooks.
Response: Further research is required on the impacts of circle
hooks relative to hook-up rates, post-release mortality, and hook
design before the use of circle hooks should be required for the
fishery. NMFS is interested in exploring gear modifications that reduce
bycatch mortality and is currently funding research on the use of
circle hooks vs. ``J-hooks'' in the pelagic longline fishery. The HMS
and Billfish APs discussed the use of circle hooks at a meeting in July
1998. Representatives of the recreational fishing community expressed
their support for the use of circle hooks to reduce post-release
mortality in non-trolling situations with the reservation that this
alternative would be better implemented in a non-regulatory way.
Outreach programs for anglers and commercial fishermen will address
gear modifications, including circle hooks, that may reduce post-
release mortality. The results of ongoing research will be considered
when available to address this comment in the future.
Comment 5: NMFS should implement gear marking requirements. Another
commenter indicated that gear marking requirements will have no effect
on reducing bycatch or bycatch mortality of HMS.
Response: This rule imposes gear marking requirements, because they
will assist in enforcement of time/area closures and BFT catch limits,
and could provide information on hooked marine mammals. Time/area
closures and longline length restrictions are established to reduce
bycatch. While vessel monitoring systems can alert enforcement agents
to the presence of fishing gear in a closed area, agents need to
approach the gear while it is drifting in the water in order to
document a violation. Therefore, gear marking requirements will
facilitate enforcement of HMS bycatch reduction measures.
Comment 6: NMFS should require vessels to move after one
entanglement with a protected species. Moving after one entanglement is
unenforceable without mandatory observer coverage and therefore success
will be difficult to measure. This measure will have no effect on
reducing bycatch of HMS.
Response: This rule requires fishermen to move after one
entanglement. This measure was recommended by the Atlantic Offshore
Cetacean Take Reduction Plan and responds to recent research results
indicating the clustering of protected species (marine mammals and sea
turtles). Some fishermen already move after one entanglement in order
to protect their gear, avoid catching protected species, and fish more
efficiently. For fishermen who do not currently do this, it may
alleviate some of the problems associated with the capture of protected
species and predation on their target species. NMFS agrees that this
measure is not likely to reduce bycatch of HMS, however, it was not
designed to do that. This measure may be difficult to enforce but NMFS
received positive feedback at the July 1998 AP meeting that it would
help to reduce bycatch by informing fishermen who do not usually follow
this procedure.
Comment 7: NMFS should require de-hooking devices on board all
vessels. However, NMFS needs to define de-hooking devices and eliminate
the use of ``crucifiers,'' a tool reportedly used to release a hook
from a fish without having to handle the fish.
Response: NMFS considered this alternative and rejected it due to
the difficulty in enforcing it. NMFS is not able, at this time, to
approve specific de-hooking devices, although the term ``dehooking
device'' is defined in the final rule. However, NMFS encourages
fishermen to use techniques that minimize injury to the fish and to
work towards increasing survival of released individuals.
Time/Area Closures
Comment 1: NMFS should close critical right whale habitat to
pelagic longline and driftnet fisheries.
Response: NMFS has prohibited the pelagic driftnet fishery for
swordfish. Longline fishermen do not currently fish and are not
expected to fish in these areas, therefore the only value of this
closure would be to prevent expansion of effort into these areas which
is unlikely. Parts of these areas are in state waters. For these
reasons, NMFS does not close critical right whale habitat to pelagic
longline fishermen. If there are fishery interactions with right whales
in the future, NMFS may consider closing these areas to HMS fishermen
who interact with this species.
Comment 2: NMFS has received several comments on the proposed
pelagic longline time/area closure off the mid-Atlantic and New England
coasts, specifically with regard to bycatch and safety, including:
Since there is little pelagic longline gear interaction with bluefin
tuna in the southern portion of the proposed closed area, NMFS should
move the southern boundary to 39 deg. N to provide additional fishing
opportunities and minimize safety concerns while still significantly
reducing dead discards; NMFS should, in accordance with NS 9, achieve
reduction in dead discards by changing the longline target catch
requirements; the United States has failed to comply with ICCAT
recommendations to develop bluefin tuna discard reduction measures;
NMFS should analyze and implement additional restrictions, such as
number of hooks used, soak time, and other time/area closures in
conjunction with the proposed time/area closure, in order to minimize
bycatch; NMFS should allow longline fishermen to fish with other
allowed gears in an area closed to pelagic longline gear without having
to physically remove their pelagic longline spool from the vessel. NMFS
also received comment that participants of each category should be
responsible for minimizing discards and, if a category is successful in
doing so, should receive any resulting catch quota benefit. There were
also requests that NMFS better quantify the 60 percent decrease in
discards associated with the proposed time/area closure.
Response: In response to public comment regarding the southern
boundary of the proposed closure area, NMFS reanalyzed the logbook data
used for selection of the preferred alternative in the FMP addendum.
These new analyses show that an equivalent reduction in discards can be
achieved by closing a smaller area. Through this FMP, NMFS closes a
1 deg. x 6 deg. block (21,600 square nautical miles), from 39 deg. to
40 deg. N. and from 68 deg. to 74 deg. W., for the month of June, to
pelagic longline gear. The modification of the closed area should
mitigate some of the safety concerns. This smaller area also responds
to concerns raised by pelagic longline fishermen during the comment
period about the safety of small vessels crossing the Gulf Stream. NMFS
does plan to continue to analyze the impacts of this revised time/area
closure and to investigate the potential benefits of other measures.
NMFS' analyses continue to indicate that there is no relationship
between target catch and bluefin tuna interaction by pelagic
[[Page 29119]]
longline gear. NMFS will add any additions to the U.S. landings quota,
resulting from unused discard allowance, to the total U.S. quota. NMFS
allows fishermen to use fishing gear while a longline is on board
provided the longline gear is secured.
Comment 3: NMFS received numerous comments concerning the use of
time/area closures for the pelagic longline fishery. A range of
comments supported the proposed Florida Straits closure, other nursery
areas such as Charleston Bump and areas in the Gulf of Mexico, rotating
time/area closures, and a year round ban on longline fishing. Comments
also opposed any time/area closure that would have unpredictable
results due to redistributed effort. Specific to the proposed area in
the Florida Straits, NMFS received many comments, including those of
pelagic longline fishermen, that indicated that the proposed area is
too small to have the desired conservation effect because fishermen
will redistribute effort on the fringe of that closed area. Some
commenters found the proposed closure discriminatory because it only
targets vessels in a particular area.
Response: In response to comments indicating the ineffectiveness of
the Florida Straits closure, as well as updated analyses, NMFS defers
the implementation of a time/area closure for protection of small
swordfish and billfish until a later date. NMFS is committed to
reducing bycatch of undersized swordfish and other bycatch. Areas being
analyzed include areas between Charleston Bump south to Key West and
areas in the Gulf of Mexico. NMFS has scheduled an advisory panel
meeting on June 10 and 11, 1999, to discuss new analyses related to
larger closed areas than that proposed in the draft FMP. Analyses will
also be conducted with respect to redirected pelagic longline effort in
other areas, and the effect on target species and bycatch. NMFS is
aware of the social and economic impacts a closure may have on fishing
communities and will consider those impacts when analyzing the
alternatives. AP members and the public will have an opportunity to
comment on the alternatives before NMFS publishes a proposed rule, by
Summer 1999. NMFS agrees that rotating time/area closures could reduce
bycatch mortality of undersized swordfish if NMFS could identify
concentrations of undersized swordfish or bycatch finfish in real time.
Comment 4: Implementation of a time/area closure requires 100
percent coverage with a vessel monitoring system or 100 percent
observer coverage.
Response: NMFS agrees that VMS and 100 percent observer coverage
are useful ways to enforce time/area closures. NMFS requires all
pelagic longline vessels to carry an operating VMS, which is expected
to reduce administrative costs of enforcing a time/area closure in
comparison to observer coverage.
Comment 5: NMFS should include all gears in a time/area closure and
require VMS on all vessels. Another commenter indicated that having
closures to all fishing gears is contrary to the objectives of a time/
area closure. The basis for establishing a time/area closure is to
reduce bycatch mortality. The development of fair regulations does not
imply the same regulations for all fishing sectors.
Response: Regarding time/area closures, NMFS agrees that
regulations do not have to be the same across all fishing sectors in
order to be fair. Although no-fishing-zones might be appropriate if
both the commercial and recreational fishing sectors had similar
bycatch mortality impacts on a stock, that is not the case with bycatch
mortality of bluefin tuna or swordfish.
Comment 6: NMFS has failed to provide detail on the viability of
establishing other closed areas to protect juvenile swordfish.
Response: NMFS is continuing to conduct analyses on closed areas to
protect small swordfish and will provide the necessary information on
potential closed areas in the near future.
Comment 7: NMFS received many comments, supporting or opposing the
use of VMS in the pelagic longline fishery. Some commented that VMS
presents a duplicate information collection (parallel to logbook data
collection). Others commented that NMFS should provide the VMS to
vessel owners because most operations do not have the finances for
initial purchase of the units (VMS is economically devastating) and
NMFS should pay for future upgrades to the VMS.
Response: VMS is important to the enforcement of time/area
closures. NMFS requires VMS for all pelagic longline vessels in this
final rule because it provides near real-time and very accurate
position reports which can be used to identify fishing activity in a
closed area. This accuracy and timeliness of the information collection
are not duplicative to the logbook program because current data in
logbooks are not submitted immediately to NMFS. Other benefits of VMS,
in addition to enforcement of closed areas, include safety,
communication with shoreside contacts, increased access to weather data
for fishermen, and the future potential for real-time catch and bycatch
reporting from captains and observers. In an effort to minimize costs
to fishermen, NMFS has relaxed proposed specifications in order to
approve a lower cost unit. NMFS will not be providing VMS hardware or
funding communications costs for fishermen in the pelagic longline
fishery. NMFS will publish a Federal Register notice indicating
approved VMS systems for the HMS pelagic longline fishery. Fishermen
should work with VMS manufacturing and service companies to determine
what other expenses they may accrue in the future. NMFS does not
anticipate that any upgrades will be needed.
Comment 8: Neither the draft FMP nor the proposed rule identified
the VMS requirement as being subject to Paperwork Reduction Act
requirements.
Response: NMFS included the information collection burden
information related to compliance with the proposed measure to require
VMS in the proposed rule (64 FR 3154, January 20, 1999). The draft FMP
did not provide information collection burdens for proposed measures.
Comment 9: Currently, there is only one certified VMS vendor, which
means there is no cost-controlling mechanism to protect users from
monopoly action by the vendor.
Response: NMFS disagrees. At the time the comment was submitted,
there were no VMS units approved yet by NMFS for use in the pelagic
longline fishery. INMARSAT-C had been required for a previous pilot
program only. NMFS is in the process of approving VMS units and
communication service providers. NMFS will publish a notice in the
Federal Register after the approval process is completed. Fishermen
should contact these companies to determine which unit best meets their
needs. All of these units comply with NMFS' regulatory standards.
Time/area Closures to Protect Sharks
Comment 1: NMFS received several comments on time/area closures
including that NMFS should close important juvenile and subadult EFH
areas (such as breeding and nursery areas) to commercial fishing at key
times, that NMFS should close juvenile and subadult EFH year round to
directed fishing and retention of shark bycatch, that NMFS should close
juvenile and subadult shark EFH at least during the spring pupping
season, and that NMFS should not implement any
[[Page 29120]]
time/area closures but should intensify cooperative efforts with states
to protect habitat.
Response: NMFS agrees that additional management measures for
important juvenile and subadult EFH areas may be appropriate to
facilitate rebuilding of LCS and prevent overfishing of pelagic and
SCS. However, numerous final actions in the HMS FMP should meet
conservation goals. Given the limited number of nursery and pupping
areas in Federal waters, NMFS will continue to work with Atlantic and
Gulf coastal states and regional fishery management councils and
commissions to coordinate consistent and necessary regulations for
sharks in state and Federal waters.
Comment 2: NMFS should implement a time/area closure from January 1
through March 15 between Diamond and Cape Lookout Shoals for one season
and then assess its effectiveness in protecting juvenile and subadult
sandbar and dusky sharks, reducing waste, and easing enforcement.
Response: As stated in the HMS FMP, NMFS did consider a time/area
closure for sandbar and dusky shark juvenile and subadult wintering EFH
off Cape Hatteras, NC, which closely coincides with the area suggested.
NMFS did not implement such a closure because the State of North
Carolina's proclamation prohibiting commercial retention of all sharks
is expected to eliminate the juvenile sandbar and dusky shark winter
fishery, thereby addressing effectively the need to protect juveniles
in this area. However, additional management measures may be necessary
in the future and NMFS may consider time and/or area closures at that
time.
Comment 3: NMFS should close the juvenile and subadult wintering
EFH off North Carolina to directed shark fishing and retention of all
shark bycatch.
Response: NMFS disagrees for the reasons stated above.
Comment 4: Counting dead discards against quotas is not a
substitute for reducing shark bycatch and NMFS should consider
additional management measures to reduce bycatch and bycatch mortality
of sharks.
Response: NMFS agrees and does not intend this final action to
substitute for other measures. Several final actions will affect
bycatch and bycatch mortality rates of sharks in other HMS fisheries as
well as bycatch and bycatch rates of other species in shark fisheries.
NMFS is not implementing time/area closures of juvenile and subadult
EFH because few areas are within NMFS' jurisdiction and because NMFS
believes that the combination of final actions in the HMS FMP will
reduce effective fishing mortality sufficiently to allow rebuilding.
However, NMFS intends to continue working with regional councils,
states, and commissions to address bycatch of sharks in other fisheries
and to increase observer coverage in directed shark fisheries,
particularly the southeast shark drift gillnet fishery, to determine
bycatch and bycatch mortality of other species in shark fisheries. NMFS
may consider additional management measures, including time/area
closures, to reduce bycatch and bycatch mortality in shark fisheries
and in other fisheries in the future.
Safety of Human Life at Sea
Comment 1: A geographically narrow closure area, such as the
proposed Florida Straits closure, may entice small vessels to over-
extend their range to fish along the fringes of the closed area, in
order to avoid incurring costs of re-locating their home ports. Time/
area closures, in general, involve a safety risk as fishermen may
travel farther from shore in order to fish.
Response: NMFS recognizes the safety implications of time/area
closures and seeks to minimize these risks to the extent practicable.
However, NMFS reminds all vessel operators to maintain caution when
undertaking all fishing activities. NMFS is implementing a VMS
requirement, which may mitigate some of the safety risk. Further, NMFS
is not finalizing the proposal to close the Florida Straits, but will
continue analyzing closure boundaries to develop effective measures and
to discourage re-distribution of effort around the fringes of the
closed area.
Comment 2: NMFS needs to work with the National Weather Service to
increase the number of nearshore and offshore weather reporting buoys
to support more accurate weather forecasting for fishermen.
Response: NMFS will forward this comment to the National Weather
Service.
Comment 3: Restrictive ICCAT quotas encourage unsafe derby fishing
conditions; individual transferable quotas (ITQs) may be a practical
solution for some HMS fisheries.
Response: Under the authority of the Magnuson-Stevens Act, NMFS may
not implement ITQs until October 1, 2000. NMFS may consider ITQs for
HMS fisheries after that time.
Comment 4: Filling out logbooks within 24 hours of hauling a set
may be dangerous because it takes away from the time fishermen would
normally be getting rest or making repairs to equipment. Longline
logbook requirements are far ahead of any other group and further
measures are punitive.
Response: NMFS has received comments indicating that there are
practicality and safety issues associated with this proposed
requirement, which was suggested for improved enforceability and
accuracy. The operators indicate that they complete their own captain's
books shortly following each set, and use these data when completing
their logbooks. In response to concerns about safety at sea, the final
action has been modified to require that logbooks be completed within
48 hours of hauling a set and before offloading the fish. NMFS finds
logbook data very useful and the ability to inspect up-to-date logbooks
is a necessary action for enforcement agents.
Essential Fish Habitat
Comment 1: It is good that NMFS realizes more research needs to be
done regarding EFH. NMFS should avoid the temptation of rushing toward
assumptions prior to the availability of scientific information
throughout the entire range of Atlantic HMS.
Response: NMFS agrees. The EFH portions of the FMP are based on an
assessment of the currently available information from published and
unpublished fishery-dependent and fishery-independent data (including
tag-recapture information), compilations of information from
international management bodies, commercial and recreational fishermen,
fishery observer data and knowledge of recognized experts. The current
descriptions and identifications of EFH for HMS meet the standards of
the regulations. NMFS is committed to periodic review of the available
information and will revise the EFH sections of the FMP when sufficient
new information is available.
Comment 2: NMFS should expand the assessment of EFH to include an
evaluation of impacts of EFH by fisheries other than those targeted by
the HMS fishermen.
Response: NMFS agrees. At the time the FMP was prepared, spatial
information on the distribution of various fisheries, HMS, other
Federal or state fisheries was not accessible. This has been identified
as a high priority project for NMFS.
Comment 3: NMFS should designate sargassum as EFH for HMS and
immediate regulatory action should be taken to protect sargassum from
HMS fishing gears and practices, as well as other fishing and non-
fishing activities until a complete and thorough study of the impact of
removing this EFH is studied and reviewed.
[[Page 29121]]
Response: As a result of the input from the APs, sargassum has been
identified as an important biological component and an integral part of
EFH for many of the HMS. Although many HMS frequently co-occur with
sargassum, the degree to which sargassum is utilized by HMS and its
exact role relative to HMS production has not been clearly documented
in the scientific literature and is a matter of current research. A
phase-out of sargassum harvesting is currently proposed under the
jurisdiction of the SAFMC.
Comment 4: NMFS should consider monitoring plankton and seaweed as
part of the rebuilding plans for HMS.
Response: NMFS agrees that an ecosystem approach is important when
managing, and particularly when rebuilding, fisheries. Essential Fish
Habitat regulations require that NMFS and the Councils take an
ecosystem approach in identifying and conserving habitats that are
considered essential to managed fisheries.
Comment 5: The HMS FMP and Billfish Amendment do not present a
procedural framework for the process of review and mitigation of
fishing and non-fishing threats to EFH.
Response: In accordance with the EFH regulations, NMFS is
establishing streamlined procedures to incorporate EFH concerns into
existing environmental reviews. Consultations on actions that may
adversely affect HMS or Billfish EFH will be conducted at the regional
level, as appropriate.
Comment 6: One comment offered specific changes to the broad
descriptions of ecological threats associated with oil and gas
production based on a more narrow range of industry activities.
Response: The statements in the FMP regarding the ecological
threats and conservation measures related to offshore oil and gas
operations are meant to be broad and all-encompassing, and not site
specific. Through the consultation process established under the EFH
regulations, NMFS will consider the potential impacts on HMS EFH from
proposed oil and gas activities, and any mitigating (e.g., regulatory)
measures already in place, as well as their adequacy in protecting and
conserving HMS EFH, on a case-by-case basis.
Comment 7: The habitat section should be updated with more current
information.
Response: Recent publications were used in preparing the habitat
section. Also, an effort was made to use publications that covered
broad geographic areas in a similar, or consistent, manner so that
throughout the various regions the same parameters could be described
and compared. The habitat sections will be updated as new material
becomes available through the SAFE Report and framework revisions, and
EFH amendments to the FMP will be prepared if the information warrants.
Comment 8: The draft amendment to the Billfish FMP lacks an in-
depth discussion of mitigating fishing impacts on EFH.
Response: The EFH interim final rule requires that FMPs contain an
assessment of adverse impacts from the fishing gears that are used in
EFH and that Councils act to minimize adverse impacts to EFH to the
extent practicable. Although limited in scope, the best available
scientific information on the impacts of HMS fishing gears and
practices to habitat is included and discussed in the Atlantic billfish
FMP amendment and the HMS FMP. The lack of information is noted in the
research and information needs section. As additional information
becomes available it will be incorporated in future amendments.
Comment 9: Due to the highly migratory nature of these species and
NMFS' definition that ``Essential fish habitat means those waters and
substrates necessary to fish for spawning, breeding, feeding, or growth
to maturity'', nearly everywhere the fish can be found could be
considered ``essential''. With many EFH areas outside the U.S. EEZ, the
ability to implement any meaningful habitat protection specifically for
Atlantic billfish is limited.
Response: NMFS agrees that the ability to directly effect
conservation of the habitats of billfish and other HMS may be somewhat
limited because much of their range lies outside of US waters. The EFH
regulations are clear that EFH can only be designated within the US
EEZ, but they do allow for the identification of other important
habitats outside the U.S. EEZ. The EFH regulations encourage NMFS to
engage in consultations, through the appropriate channels, that can
further the conservation and enhancement of the key habitats outside
the control of the United States. When activities are identified that
are degrading the habitat of billfish, consultations will be initiated
through agencies such as the State Department or international fishery
management bodies, e.g., ICCAT or FAO.
Permitting, Reporting, and Monitoring
Comment 1: NMFS should require a recreational HMS vessel permit.
Response: NMFS currently requires a permit for recreational tuna
vessels, but not for private vessels fishing for sharks, swordfish or
billfish. However, many of these private vessels participate in HMS
tournaments, which are required to register with NMFS, and all charter
boats are required to obtain a permit in order to fish for HMS. The
social and economic costs of requiring an HMS permit for all
recreational vessels exceed the benefits at this time. While
recreational vessel permits, such as those for Atlantic tunas, can be
useful in determining the universe of potential participants, in the
case of billfish and swordfish, encounters are so rare relative to
effort expended, a specific permit may not be applicable to this type
of fishery. A recreational vessel permit, e.g., a permit for all HMS
recreational fisheries, is included in the framework provisions for
future consideration.
Comment 2: NMFS should require the use of a landing tag for
recreational HMS fisheries.
Response: A pilot program implemented through state-federal
cooperation has been in place for two years in North Carolina to test
the use of tags for monitoring the recreational fishery for Atlantic
bluefin tuna. Requiring fish to be tagged may be a feasible alternative
that could help identify the universe of billfish and swordfish
anglers, since anyone who might potentially land a billfish or
swordfish would obtain a tag. Further research could shed light on the
possibility of designing a viable mechanism can be implemented to
identify specific user-groups. A universal HMS recreational landing tag
program would require further consideration of self-reporting systems,
program design and logistics, as well as obtaining specific public
comment on how best to implement an effective tag program. This
monitoring tool is included as a framework provision because a landing
tag system merits further consideration. AP members noted that landings
tags may assist in identification of the universe of Atlantic HMS
anglers.
Comment 3: NMFS violates the Magnuson-Stevens Act by not making a
reasonable effort to quantify the number of vessels, effort, catches,
landings, bycatch, and/or trends of landings for the recreational or
charter fishing sectors in HMS fisheries.
Response: The HMS FMP and the Atlantic billfish FMP amendment
provide all available information on the commercial and recreational
HMS fisheries, including: estimates of the number of recreational
vessels involved,
[[Page 29122]]
the type and quantity of fishing gear used, the species of fish
involved and their location, actual and potential revenues from the
fishery. NMFS has quantified, to the extent practicable, the trends in
landings of billfish and other HMS by the recreational sector.
Information on the number of private boats and charter boats is more
problematic, as noted in the FMP amendment, and is part of the
rationale for requiring logbooks and permits, voluntary observers for
charter-headboats, and notification and reporting for all billfish
tournaments. In this final rule, NMFS establishes a number of measures
that will improve estimates of recreational statistics, including
mandatory permitting and logbook reporting for charter/headboats,
observer coverage, and tournament reporting. Additional measures that
can be utilized to further improve monitoring of the recreational,
charter and commercial fishing sectors are included in the framework
section of the HMS FMP and Atlantic billfish FMP amendment.
Comment 4: NMFS should not require mandatory permits and logbooks
for charter boats.
Response: NMFS disagrees. The 1997 ICCAT recommendation requires
improvements in monitoring, data collection, and reporting from all
fisheries that encounter Atlantic billfish. These management measures
provide catch and effort data for billfish that are currently not well
quantified. Furthermore, NMFS seeks to improve data collection in the
recreational sectors of all HMS fisheries.
Comment 5: NMFS should not require observers on charter boats.
This measure is impractical, violates the privacy of recreational
anglers, will deter business, result in cancellation of trips, and will
have a negative economic impact on the charter fleet and associated
industries. NMFS should just place observers on the dock for
inspections when boats come back to shore. Monitoring of the charter
fleet by NMFS is unnecessary, since anglers release most HMS that are
caught. Any federal funds spent on observers should be used to expand
monitoring of the commercial pelagic longline fleet.
Response: The final FMP establishes a voluntary observer program
for charter and headboats, which will minimize the negative economic
impact. Observers are a necessary component of fishery management to
determine the accuracy of the data collected form logbooks, and will
enable NMFS to directly observe recreational catch, hookup and release
rates, the condition of released fish, and the species and size
composition of the catch. This type of information cannot be obtained
solely by dockside or telephone interviews. If statistically meaningful
samples cannot be obtained, a mandatory program may be implemented in
the future.
Comment 6: The HMS tournament reporting form, currently used by
NMFS for billfish, is difficult to use for reporting effort and other
required information.
Response: NMFS has received numerous comments suggesting that the
HMS tournament reporting form should be revised. NMFS may consider
holding joint workshops with NMFS scientists, representatives of
fishing organizations, and interested members of the public to discuss
the best format for accurate data reporting.
Comment 7: Many charter/headboat vessels targeting HMS already
carry a permit and complete a logbook under programs for other
fisheries.
Response: NMFS is requiring that all HMS charter/headboat owners
that fish for HMS obtain an HMS permit, in order for NMFS to identify
the universe of charter/headboats targeting HMS. However, NMFS does not
intend to duplicate any reporting requirements and will therefore allow
charter/headboat owners to submit logbooks to NMFS as they have in the
past, consistent with other charter permit conditions. NMFS will send
logbook forms to charter/headboat owners who do not currently submit
logbooks.
Comment 8: NMFS should increase observer coverage of the longline
fishery; U.S. has failed to comply with ICCAT recommendations for
minimum observer coverage.
Response: NMFS continues to strive for a goal of 5 percent
observer coverage in the pelagic longline fishery, under a stratified
sampling scheme. This level of coverage is required under the ICCAT
recommendation for yellowfin and bigeye tunas, and under the NMFS
Biological Opinion to monitor takes of endangered species.
Comment 9: NMFS should not increase the number of reporting
requirements unless NMFS can analyze all the information that is
collected.
Response: NMFS increases reporting requirements in order to collect
more accurate data on all sectors of HMS fisheries, in support of
rebuilding programs.
Comment 10: The Large Pelagic Survey (LPS) is not adequate to
monitor catch of HMS.
Response: NMFS disagrees. The LPS is a statistical survey designed
to estimate catches of bluefin tuna, which is used both for in-season
monitoring as well as year-end estimates of catch. Although it was
designed for bluefin, the LPS collects information on other HMS at
certain times and in certain areas. The MRFSS is a separate statistical
survey designed to provide regional and state-wide estimates of
recreational catch for the entire spectrum of marine fish species.
Though not designed to account for the unique characteristics of HMS
fisheries, the Marine Recreational Fishing Statistics Survey (MRFSS)
does collect information on these species. In 1997, NMFS instituted a
mandatory Automated Catch Reporting System (ACRS) to supplement
monitoring of the recreational bluefin tuna fishery. The LPS is
conducted simultaneously in order to provide a measure of comparison
for the reported catch estimates. All recreational vessels are required
to participate in both the call-in reporting and survey programs. NMFS
is also committed to working with the states to develop more effective
partnerships for monitoring the recreational bluefin tuna fishery. As
part of a pilot program launched in 1998, over 20 reporting stations
have been established in North Carolina, and vessels landing
recreationally caught bluefin are required to fill out a catch
reporting card for each bluefin retained. This program, coordinated by
NMFS in cooperation with the North Carolina Division of Marine
Fisheries, was continued in 1999. Other mid-Atlantic states, including
Maryland and New Jersey, have demonstrated an interest in establishing
similar programs. NMFS maintains that a successful tagging program
depends upon effective state-federal coordination that takes into
account regional differences in the fishery, as well as cooperation
with the recreational industry.
NMFS maintains the current system of recreational catch monitoring
for HMS, including the LPS, MRFSS, ACRS, and cooperative state tagging
programs, combined with the measures implemented in this FMP and the
Amendment to the Billfish FMP (charter boat logbooks, mandatory
tournament registrations and reporting), are sufficient to monitor
recreational catch of HMS. NMFS is committed to improving catch
monitoring in both the recreational and commercial fisheries for HMS,
and will work with fishery participants, the APs, the Councils, the
States, and other interest parties toward this goal.
Regulatory Flexibility Analysis
Comment 1: The alternatives proposed in the draft FMP will have a
disproportionate impact on pelagic longline fishermen and the analyses
[[Page 29123]]
contained in the IRFA and the draft HMS FMP do not seriously consider
the many options to economic devastation that the pelagic longline
industry has presented in the HMS AP process and in other submissions
in recent years. Both the Regulatory Flexibility Act and NS 8 require
NMFS to work diligently to develop alternatives that could permit
rebuilding while moderating the economic impact of such conservation
measures.
Response: NMFS agrees that many of the final actions will have a
significant economic impact on all HMS fishermen, including pelagic
longline fishermen. However, NMFS disagrees that it has not seriously
considered the many options presented in the HMS AP process or in other
submissions. NMFS considered all of the alternatives presented, has
considered additional alternatives, and has performed numerous analyses
on logbook and observer data in an attempt to minimize economic impacts
to the extent practicable on HMS fishermen, including the pelagic
longline fishermen. Often times, these analyses indicated to NMFS a
more effective method of accomplishing a particular goal while still
minimizing economic impacts to the extent practicable. In all cases,
NMFS ensures that the public has a chance to participate in the final
rulemaking process. NMFS believes that the final actions will achieve
the rebuilding goals of the Magnuson-Stevens Act while also minimizing
the economic impacts to the extent practicable.
Comment 2: It is not appropriate for NMFS to consider employment
as a cost which lowers the net economic benefit.
Response: NMFS realizes that employment is considered a benefit
for the employee, but this is not the definition of net economic
benefit. Net economic benefit is the difference between the benefits
and costs to the owner of a vessel. Thus, because the owner pays the
wages of the employees, labor must be considered a cost to the owner.
Comment 3: The FMP fails to include an analysis of the cost of
overfishing and depletion of the fishery resources.
Response: NMFS disagrees. Although a quantitative analysis of the
cost of overfishing was not performed, NMFS provided numerous
discussions and qualitative analyses of the costs of overfishing and
depletion of the fishery resources. Throughout the FMP NMFS discusses
the benefits to fishermen in the long-term as the stocks rebuild and
how the costs of fishing will continue to increase and the benefit to
the nation will continue to decrease if HMS stocks remain overfished.
In addition, NMFS repeatedly states that in the long-term, the economic
impacts endured now will be less than the economic impacts endured if
HMS fisheries continue to decline and the species become commercially
extinct.
Comment 4: Pelagic longline fishing should be profitable because
it is so diverse. However, the draft FMP concludes that the average
annual payout to a vessel owner is only $53,064. This small payout is
due to years of cumulative impacts of ever more stringent fishery
management measures, the impact of foreign competition, market gluts,
and disparate levels of domestic versus international regulation of
pelagic longline fishing. The management measures proposed in the draft
FMP will put much of the pelagic longline fleet out of business.
Response: NMFS agrees that the cumulative impact of the final
actions in this FMP may put many pelagic and bottom longline fishermen
out of business. However, NMFS believes that the many final actions
implemented in this FMP both rebuild overfished fish stocks and
minimize the economic impacts to the extent practicable. In the long
term, the actions in the FMP will build sustainable stocks that are
economically viable. At present, many of these stocks are not at
economically viable levels. This is evident in the small profits
currently available to the pelagic longline fleet.
Comment 5: Requiring pelagic longline vessels to purchase,
operate, and maintain a VMS is unfair; the VMS requirement will be
economically devastating; the fixed costs of a VMS system fall
disproportionately on smaller vessels; NMFS should not force the entire
longline fleet to pay for VMS when only 20 vessels fished in the
Straits of Florida proposed closure.
Response: Although the initial cost of a VMS could be expensive
($1,800 to $5,000), NMFS feels the benefits obtained from such a system
justify the costs. Direct benefits to fishermen include: the ability to
delay offloading during a closure thus obtaining a better price and
allowing pelagic longline fishermen to travel to and from the south
Atlantic through the north Atlantic after the closure; the ability to
travel across a closed area; additional safety to vessel operators by
enabling the Coast Guard to accurately find a vessel in case of an
emergency; and in the future, a VMS may allow fishermen to transmit
electronic logbooks thus decreasing the time taken to fill out the
current logbooks and improving fleet-wide monitoring and predictions of
closures. A VMS also allows for effective enforcement of time/area
closures, thus helping to rebuild the stock. This FMP only implements
one time/area closure, however NMFS believes time/area closures are an
effective method of reducing bycatch and can contribute to rebuilding.
NMFS intends to implement additional time/area closures in the future.
VMS will be important in enforcing these time/area closures.
Comment 6: The proposed Florida Straits closure will
disproportionately impact the smallest and most economically vulnerable
vessels in the fleet. The narrow targeting of the devastating economic
impact on a handful of fishermen and fishing communities on Florida's
East Coast is illegal and discriminatory. The contribution to
rebuilding via reduction of dead discards will not be as great as the
economic impacts on this small group of fishermen and will not be
effective overall. A more productive approach would be to close larger
areas for a shorter period of time. Such an approach would limit, if
not preclude, the potential for redistribution of effort, while
spreading the economic cost of rebuilding across a broader cross-
section of the pelagic longline fleet.
Response: NMFS agrees that the proposed Florida Straits time/area
closure may not be as effective as a larger time/area closure. However,
NMFS does not agree that the proposed time/area closure discriminated
against a handful of fishermen. The proposed time/area closure was
designed to reduce the bycatch and rebuild the swordfish stocks, as
required by the Magnuson-Stevens Act. NMFS did not propose a larger
area in an attempt to mitigate the potential negative economic impacts
of time/area closures on pelagic longline fishermen. However, the
majority of commenters felt that while a time/area closure is
necessary, the one proposed would not be effective. Thus, in this FMP
NMFS is not implementing the proposed Florida Straits time/area
closure. Instead, NMFS will re-examine all the data presented both
before and during the comment period and re-analyze the data. A more
effective, and probably larger, time/area closure will be proposed
shortly after the implementation of this FMP.
Comment 7: If NMFS decides to impose such strict regulations on
pelagic longline fishermen, NMFS should develop a buyback program; the
possibility of a buyback should not be linked to other conservation
methods.
Response: NMFS agrees that a buyback program might offset some of
the economic hardships felt by HMS fishermen. Under section 312 (b) of
the
[[Page 29124]]
Magnuson-Stevens Act, NMFS may implement a fishing capacity reduction
program, such as a vessel or permit buyback, only once limited access
has been implemented for the fishery. NMFS may consider a buyback
program for commercial fishermen in the shark, swordfish, and tuna
longline fisheries once limited access is implemented and funding is
available.
Comment 8: NMFS' threshold of 50-percent reduction in gross
revenues for a vessel to cease fishing operations lacks validity for
the pelagic longline fishery. This fishery has already been
economically decimated by successive rounds of regulations. A 20-
percent reduction would be a more valid threshold.
Response: NMFS disagrees that the 50-percent reduction lacks
validity. Based on information received during past comment periods,
NMFS has determined that many fishermen remain in the fishery long
after their gross revenues have been reduced by over 50 percent. While
some fishermen may cease operations after 20 percent, information
presented to NMFS does not support this threshold for ceasing fishing
operations for the majority of participants.
Comment 9: The average annual earnings in the IRFA are
overestimates. The actual economic situation is worse than NMFS is
describing.
Response: As discussed in the IRFA, NMFS realizes the need for
additional economic data for all HMS fishermen. NMFS has used the best
available information and intends to work with the AP to develop a
mandatory submission of economic information. There is nothing to
preclude any small business from providing voluntarily and on its own
initiative any cost data to NMFS for consideration in preparing an IRFA
or FRFA. However, no such data have been forthcoming during the entire
process of FMP development.
Comment 10: The fact that the draft FMP's preferred alternatives
will most likely compel most of the pelagic longline fleet to cease
operations vitiates the Agency's rosy long-term prognosis that domestic
pelagic longline fishing income should increase once rebuilding, as the
agency defines it, is well underway. Simply put, the vessels will not
be around to fish, nor can the shoreside infrastructure in pelagic
longline dependent communities survive these fishing restrictions.
Response: NMFS agrees that the final actions will have significant
impacts on HMS fishermen and that many fishermen may cease to fish.
However, current fishing mortality levels are not sustainable. If NMFS
does not impose restrictions now, there may not be any fishery in the
future. In addition, the Magnuson-Stevens Act requires NMFS to
rebuilding overfished fish stocks to OY and places a time limit for
this rebuilding. This FMP will allow NMFS to rebuild HMS.
Comment 11: NMFS does not adequately consider cumulative impacts of
its management measures.
Response: NMFS disagrees. The IRFA contained in the draft HMS FMP
explains how NMFS considered the impacts, cumulative and specific, of
the proposed management measures. The IRFA found that cumulatively, the
management measures would have a significant economic impact. The
cumulative impact of the final actions will also have a significant
economic impact.
Limited Access: General
Comment 1: Access to the Atlantic swordfish and shark fisheries
should be limited based on historical participation as shown by permits
and landings thresholds. The goal should be to limit participants to
those who not only currently have permits, but who are actively
participating in the fishery.
Response: NMFS agrees.
Comment 2: NMFS received a range of comments regarding limited
access and buyback programs, including: implement the proposed limited
access in the swordfish and shark fisheries because both are
overcapitalized; the number of vessels permitted to fish must be
reduced in order to remove the large amount of latent fishing capacity
in these fisheries; implement a permit moratorium first; limited
access, as proposed, will maintain the shark derby; reduce the size of
the legitimate fishing fleet with a ``buyback'' program like the one
implemented in the New England groundfish fishery; implement a buyout
program; require 2 limited access permits be bought to obtain 1 limited
access permit; implement the limited access proposal because it is the
foundation of managing sharks; and reduce the number of shark permits
to the lowest levels possible.
Response: NMFS believes that the limited access system, as a first
step, will reduce latent effort and overcapitalization in both the
Atlantic swordfish and shark fisheries. A permit moratorium will not
address the severe overcapitalization present in both fisheries.
Regarding ``buyback'' programs NMFS recently published a proposed rule
on the subject (64 FR 6854). NMFS may consider a buyback program in
both fisheries once limited access is established and funding is
available.
Comment 3: Most of the FMP relies on setting up a limited access
program. However, because the limited access program as proposed is a
temporary measure it makes it difficult to comment on the rest of the
HMS FMP.
Response: NMFS disagrees. NMFS does not believe that most of the
HMS FMP relies on setting up limited access nor does it consider the
limited access program a temporary measure. Most of the other measures
could be implemented without limited access. However, the effectiveness
of these measures may be hindered if the fisheries remain
overcapitalized. Limited access is meant to be a starting point for
rationalizing the effort in both the swordfish and shark fisheries with
the available quotas.
Comment 4: Permit issuance and administration should remain
consistent.
Response: In developing this limited access program, NMFS employees
from management, permit issuance, and enforcement were consulted to
ensure consistency between issuing permits under limited access and the
way they were issued in the past. Due to limited personnel and
resources, NMFS determined that the initial issuance of limited access
permits should be from the Office of Sustainable Fisheries, Highly
Migratory Species Division. NMFS agrees that the current administration
and issuance of permits should be maintained through the Southeast
Regional Office at this time, with the exception of the initial limited
access permits.
Comment 5: Most of the limited access system is incomprehensible
and it was impossible to decipher how the limited access proposals
apply to each fishery. The administration of permits is inconsistent
with regard to who or what entity would be eligible for a limited
access permit, depending on the fishery in which the vessel operates.
Response: NMFS attempted to make this limited access system as
simple as possible to understand, which is difficult given the
differences in the current administration of the swordfish and shark
fisheries. However, because the rule consolidates regulations for all
HMS fisheries, this should become easier over time. In both fisheries,
permits will be issued to the current vessel owner. In the shark
fishery, if the operator qualified the vessel, the permit is valid only
when the operator is on board that vessel and this condition is only
required until May 1, 2000, which is the first full year after
implementation of limited access. After May 1, 2000, the condition
requiring the operator to be on board for limited access permits
[[Page 29125]]
issued based on the qualifications of the operator will expire. Through
this condition, NMFS intends to ensure that vessel operators, who
helped the owner qualify for a shark permit and who may have an
investment in the fishery, will not be negatively impacted by limited
access.
Comment 6: Taking away permits is unconstitutional and it is
alarming that NMFS would take away permits for reasons other than
illegal activities.
Response: There is no property interest in nor right to a permit in
the HMS fisheries. NMFS may institute limited access in accordance with
the Magnuson-Stevens Act and other applicable law as appropriate.
Comment 7: The proposed limited access system has no conservation
benefits.
Response: NMFS disagrees. As stated in the HMS FMP, limited access
is intended to address overcapitalization and latent effort in the
Atlantic swordfish and shark fisheries, which contribute to the
existing, as well as potential for increases in, the ``race for fish'',
market gluts, unsafe fishing conditions, and general economic
inefficiency. NMFS believes that limited access has conservation
benefits including better identification of active fishermen for
educational workshops to reduce bycatch and bycatch mortality,
reductions in derby fishing conditions, and improved safety at sea.
NMFS further notes that reducing fishing capacity in overcapitalized
fisheries is one of the strategies highlighted in the NOAA Fisheries
Strategic Plan (May 1997) to increase long-term economic and social
benefit to the Nation.
Comment 8: NMFS should address the issues surrounding fleet size
versus quota availability in the shark fishery.
Response: NMFS is aware that the limited access system contained in
the HMS FMP, while an important first step, may not address all the
problems in the Atlantic shark fisheries, including derby fishing
conditions and excess harvesting capacity of the fleet relative to
available quota. NMFS may consider additional management measures to
address these issues in the future.
Comment 9: NMFS should include mahi-mahi (dolphin), little tunny,
and wahoo in the HMS limited access system.
Response: NMFS disagrees. Management of dolphin and wahoo is
currently under development by the South Atlantic Fishery Management
Council. Regarding little tunny, the Magnuson-Stevens Act defines
``tuna species'' under Secretarial management as albacore, bluefin,
bigeye, skipjack, and yellowfin tuna. Therefore, little tunny is also
outside the jurisdiction of the Secretarial plan for tuna species,
contained in the HMS FMP.
Comment 10: NMFS should allow traditional gears (harpoon, handline,
rod and reel) to be used on vessels that also have pelagic longline
gear on board and should provide reporting abilities on the logbooks
for these gears.
Response: NMFS agrees. NMFS believes that use of secondary gear
types is reasonable. NMFS may consider modifications to the pelagic
logbook reporting forms as appropriate to accommodate catches and
landings using secondary gears.
Comment 11: NMFS should require that boats must earn equal to or
more than 50 percent of their income from pelagic longline fishing to
qualify for a permit in the following year.
Response: NMFS disagrees that such a requirement is appropriate at
this time. However, NMFS may consider additional measures to further
reduce the number of limited access permits in the future as necessary
to meet conservation goals and increase long-term economic and social
benefit to the nation.
Limited Access: Historical Permits
Comment: The preferred eligibility requirement that participants
must have had a permit from July 1, 1994 through December 31, 1997, is
reasonable, as are the preferred landings eligibility periods of
January 1, 1987 to December 31, 1997 for swordfish landings and January
1, 1991 to December 31, 1997 for shark landings.
Response: NMFS agrees.
Limited Access: Landings Thresholds
Comment 1: The numbers proposed for the directed landings threshold
preferred alternative for swordfish are too close to incidental bycatch
limits. This could push fishermen who are really incidental into the
directed category and encourage extra effort. Raising the threshold to
100 swordfish or 408 sharks in any two years would raise the threshold
high enough that incidental fishermen would not be given a directed
permit. The $5,000 limit is too low; NMFS should use a $20,000
threshold from all fishing.
Response: The landings thresholds are based on $5,000 annual gross
revenue from fishing for either swordfish or sharks. NMFS used this
level in the past to determine which fishermen are ``substantially
dependent'' on the fishery, and NMFS believes this level of gross
revenues from fishing is an appropriate threshold between fishermen who
are essentially incidental (land a few fish each year as incidental
catch) versus directed (actually target the fish at some point during
the year). Raising the landings threshold to a level of $20,000 would
force fishermen who target and depend on a variety of fish during the
year to fish for swordfish or sharks incidentally. The higher threshold
could put fishermen who are substantially dependent on the fishery out
of business and is contrary to the goal of removing latent effort while
allowing participating fishermen to continue to fish.
Comment 2: The Larkin et al. (1998) price of $2.96 / lb ($6.51 /
kg) dressed weight which NMFS used to determine the swordfish landings
threshold is wrong. The correct price should be $2.96 / lb ($6.51 / kg)
whole weight. This would decrease the $5,000 threshold to 19 swordfish
from 25 swordfish.
Response: NMFS agrees. However, NMFS believes that 25 swordfish may
be a better proxy for the $5,000 threshold given the decrease in
average swordfish prices over the past few years and maintains the 25
swordfish per year for two years landings criterion. Alternatively,
because the ex-vessel price of swordfish or sharks depends on the size
and quality of the fish as well as market conditions, NMFS will also
accept documentation indicating that the vessel owner landed at least
$5,000 gross revenue worth of swordfish (for a swordfish limited access
permit) or shark (for shark limited access permit). This documentation
will only be accepted in an application or an appeal.
Comment 3: NMFS should allow swordfish and sharks that were tagged
and/or released alive to be counted towards the landings eligibility
criteria.
Response: NMFS disagrees. NMFS believes that the eligibility
criteria for both sharks and swordfish are lenient enough that
fisherman interested in landing sharks or swordfish should be able to
qualify for either a directed or an incidental permit without the help
of fish that were released alive. Additionally, while NMFS acknowledges
and encourages fishermen to tag and release fish with a minimum of
injury, NMFS does not have the ability currently to determine from
logbook records which fish were released due to regulatory requirements
(minimum size, closed seasons) and therefore would not have been legal
landings anyway.
Comment 4: NMFS should consider as an alternate eligibility
criteria for shark limited access for a directed permit that, for 2 of
the past 3 years, 75 percent of income come from commercial fishing
with 50,000 lbs (22.67 mt) dw shark
[[Page 29126]]
landings. All other permit holders may be given incidental permits.
Response: NMFS disagrees. The landings thresholds are based on a
level of fishing of $5,000 annual gross revenue from fishing for either
swordfish or sharks. NMFS used this level in the past to determine
which fishermen are ``substantially dependent'' on the fishery. Raising
the landings threshold to 75 percent of income coming from commercial
fishing with 50,000 lbs dw shark landings might force fishermen who
target and depend on a variety of fish during the year to fish for
sharks incidentally. This might put fishermen who are substantially
dependent on the fishery out of business and is contrary to the goal of
removing latent effort while allowing participating fishermen to
continue to fish.
Comment 5: NMFS should allow owners to transfer catch history to
the operator.
Response: The limited access system allows for catch history sales
or transfer as long as such sales are documented in a written
agreement. NMFS will consider such sales or transfer through the
application process.
Comment 6: There should be no eligibility requirements for
fishermen who fish only in the South Atlantic at this time.
Response: NMFS disagrees. On October 24, 1997 (62 FR 55357), NMFS
extended the U.S. management authority to include U.S. fishermen
fishing for swordfish in the South Atlantic and established that South
Atlantic fishermen were subject to the same regulations, including
limited access, as North Atlantic fishermen. NMFS believes that limited
access is important in the South Atlantic to prevent the severe
overcapitalization and excess harvest capacity that exist in the North
Atlantic. Once limited access is in place, NMFS may consider different
management measures, as appropriate, in the South Atlantic to address
issues unique to that fishery.
Limited Access: Recent History
Comment: NMFS should consider allowing 1998 landings, especially
since people left the shark fishery after the 1997 LCS quota reduction,
or allowing directed shark permit holders to exchange their shark
permits for directed swordfish permits. NMFS should not penalize
fishermen for diversification since that is what NMFS wanted people to
do.
Response: NMFS disagrees. While NMFS is aware that shark fishermen
may have left the shark fishery and entered other fisheries after the
LCS quota was reduced in 1997, NMFS does not believe that allowing
directed shark permit holders to exchange their shark permits for
directed swordfish permits is consistent with the goal of limiting
access and reducing overcapitalization to the Atlantic swordfish
fishery. Regarding 1998 landings, these data are not yet available in
usable electronic format and NMFS believes that delaying implementation
of limited access for another year will only worsen the
overcapitalization that already exists in these fisheries. NMFS
regulations allow transfer of limited access permits between private
persons/entities.
Limited Access: Incidental Permits
Comment 1: Incidental permits for Atlantic sharks should be given
automatically with an Atlantic swordfish directed permit and vice
versa.
Response: NMFS agrees that fishermen who initially qualify for an
Atlantic swordfish limited access permit (directed or incidental)
should be also be provided an incidental shark limited access permit
and an Atlantic tunas Longline (formerly incidental) category permit
because the gear used to catch swordfish can also catch sharks and
tunas incidentally. For the same reasons, NMFS will give fishermen who
held an incidental tuna permit in 1998 a shark incidental limited
access permit and a swordfish incidental limited access permit. NMFS
will not automatically provide directed shark fishermen with incidental
swordfish or tuna permits because directed bottom longline shark sets
rarely catch swordfish or tunas. Note that NMFS implements the
requirement that fishermen who enter the swordfish fishery at a later
date are responsible for obtaining all three permits (swordfish limited
access, shark limited access, and tuna longline) on their own.
Comment 2: The incidental trip limits for sharks are too low. NMFS
should, at a minimum, return to the previous proposal of 4 sharks, any
species, per vessel per day although evidence has been presented which
could increase the LCS trip limit to 9 LCS per day in some regions. The
pelagic shark incidental trip limit is inconsistent with NS 9 because
it will increase bycatch and waste. Furthermore, the pelagic shark
incidental trip limit should be increased because the pelagic shark
quota has not been filled.
Response: NMFS disagrees. NMFS selected a maximum of 5 LCS per
vessel per trip and a maximum of 16 pelagic and SCS, all species
combined, per vessel per trip because analyses indicated that very few
trips caught numbers of sharks above the these limits. NMFS analyzed
the catches (not landings) of LCS, pelagic, and SCS reported in the
pelagic logbook for LCS during LCS directed fishery closures and for
pelagic sharks when the target species was not reported as sharks. NMFS
chose to analyze these trips' catches because NMFS believes that these
trips represent truly incidental catches because sharks on these trips
either were not the target species or could not be retained. These
analyses indicated that during the 1996 LCS closures, over 75 percent
of 1,562 trips caught a maximum of one LCS (50 percent of trips did not
report catching any LCS), 10 percent of the trips caught a maximum of 9
to 80 LCS (although only one percent of trips caught 80 LCS). Of the
1,631 trips in 1996 where sharks were not targeted, over 75 percent
caught a maximum of 5 pelagic sharks (50 percent of trips did not
report catching any pelagic sharks), 10 percent caught a maximum of 25
to 286 pelagic sharks (only one percent of trips caught 286 pelagic
sharks). Estimates based on 1997 data were similar but slightly lower.
NMFS believes that the selected retention limits for incidental shark
permit holders are appropriate because very low percentages of trips
caught more than these limits.
Additionally, NMFS believes that many of the permits holders who
reported large catches of pelagic sharks may qualify for a directed
shark permit (if they landed those sharks) such that the incidental
retention limits would not apply and the fish could be landed, thus
reducing bycatch and waste. If they did not land their catches of
pelagic sharks, then receiving an incidental shark permit would not
impact their current fishing practices, and bycatch would not be
increased although it would also not be reduced. Should such fishermen
decide that they would like to land their incidental shark catches
above the incidental retention limits, they could obtain a directed
limited access permit because the permits are transferable. For LCS
caught during LCS closures, NMFS is aware that these fish are
regulatory discards and that the final actions in the HMS FMP may
increase the duration of LCS closures and the associated regulatory
discards. However, NMFS does not believe that increasing the incidental
retention limits is appropriate because it would likely result in
landings exceeding the allowable limits and delayed rebuilding for
these species. For these reasons, NMFS believes that the selected
retention limits for incidental shark permit holders are appropriate
and that
[[Page 29127]]
regulatory discards will be minimized to the extent practicable.
Comment 3: Incidental fisheries should be tightly controlled with
quotas.
Response: NMFS agrees.
Limited Access: Swordfish Handgear
Comment 1: The preferred alternative that handgear permits be
issued to those who can prove a historical participation in the fishery
is reasonable.
Response: NMFS agrees.
Comment 2: The handgear permit should be transferable to ensure the
category will not be phased out if the recovery period takes as long as
expected or longer.
Response: NMFS agrees and implements transferability of handgear
permits for use with handgear only. However, a handgear permit may not
be transferred for use with a longline. To further encourage the use of
handgear, NMFS may consider allowing incidental or directed permits to
be transferred for use with handgear only in the future. This could
allow for an increase in the share of the handgear permits in the
fishery once the stock recovers.
Comment 3: The preferred alternative for swordfish handgear
eligibility is better than previous proposals, but the qualification
period does not begin early enough to accommodate traditional
fisheries. If limited access for all swordfish gear is necessary, the
qualification criteria should also allow crew members on traditional
harpoon boats to be eligible for a vessel permit to fish in the harpoon
fishery.
Response: NMFS disagrees. The permit qualification period for
swordfish begins with the start of mandatory reporting and permitting.
At that time, swordfish fishermen could indicate on their permit
applications that they were using harpoons but this was not required.
In addition, NMFS does not have any records identifying the crew on
these traditional harpoon vessels. However, if the crew members are
still fishing and own a vessel, they may be able to qualify for a
handgear permit based on the earned income requirement.
Comment 4: The harpoon fishery should remain an open access fishery
due to the size selectivity of the gear, the high costs of entry into
the fishery, and the low likelihood that open access for the harpoon
fishery would lead to overcapitalization and overfishing. A moratorium
institutionalizes the exclusion of a historic fishery that was driven
from the fishery by the longline fishery and the lack of large fish.
Harpooning is the most selective gear type in the fishery and
encouraging participation is therefore preferable to institutionalizing
participation in a less-selective fishery.
Response: NMFS agrees that the traditional handgear segment should
have a place in the fishery. However, NMFS believes that leaving the
handgear segment of the swordfish fishery open access would allow for
the same potential for overcapitalization that has already occurred in
the other segments of the Atlantic swordfish fishery.
Limited Access: BAYS Tunas
Comment 1: Fishermen with a Longline category Atlantic tunas permit
(formally Incidental category) should be given a swordfish and shark
limited access permit. However, this alternative may need to be
modified so that directed tuna permits apply only if used with the same
gear that qualified the holder for the swordfish permit.
Response: NMFS agrees and will automatically provide those tuna
fishermen who held an Incidental category Atlantic tunas permit in 1998
an incidental shark and swordfish limited access permit for use only
with authorized gears (tuna fishermen who meet the directed fishery
eligibility criteria will receive directed limited access permits). In
both cases, the majority of commercial fishermen would be using pelagic
longline gear. Note that NMFS implements the requirement that fishermen
who enter the tuna longline fishery at a later date are responsible for
obtaining all three permits (swordfish, shark, and tuna longline) on
their own.
Comment 2: Bottom longline shark fishermen displaced from their
fishery should not be given tuna longline permits. They should be
bought out or retrained instead.
Response: NMFS agrees that directed shark fishermen should not
automatically be provided a tuna Longline category permit because
directed bottom longline shark sets rarely catch tuna. Additionally,
similar to the rationale for swordfish limited access permits, NMFS
does not believe that automatically providing directed shark permit
holders with tuna Longline category permits is consistent with the
ICCAT recommendation to limit effective fishing effort for yellowfin
tuna to 1992 levels or the goal of limiting access and reducing
overcapitalization in the fully to overfished Atlantic tunas fishery.
Limited Access: Appeals Process
Comment 1: The appeals process should not be handled by the Chief
of the HMS Division, but by some other administrative procedure.
Response: The permit process consists of two parts: the
applications and the appeals. Due to limited personnel and resources,
the applications (the first part of the process) will be handled by the
Chief of the HMS Division because all the information and data used to
make the initial determinations are available in this Division. NMFS
agrees that the appeals (the second part of the process) should be
handled by a separate administrative procedure. Therefore, the appeals
will be handled by appeals officers who will be NOAA employees, but not
employees who work in the HMS Division, in order to separate the two
decision-making processes. The final agency decision will be made by
the Director of the Office of Sustainable Fisheries.
Comment 2: Hardship cases should be included in the appeals
procedure.
Response: NMFS disagrees. In the draft HMS FMP, NMFS did not
propose to consider hardship cases because any definition of a
``hardship'' would make it extremely difficult to ensure consistency
between decisions on the appeals, and NMFS believes that not allowing
hardship cases will ensure that everyone is treated equally with no
extraneous information harming or helping their case. This rationale
has not changed.
Comment 3: NMFS should allow oral hearings.
Response: NMFS has not selected to allow oral hearings due to the
logistical problems and potential inconsistencies with fairness and
equity under NS 4.
Limited Access: Harvest Limits
Comment: The harvest limit for Atlantic swordfish should be
increased to 50 percent of the marketable highly migratory species on
board, but not to exceed 15 in number per vessel per trip. Other
percentages may be acceptable depending on analyses. NMFS should
implement directed catch criteria for pelagic sharks to help prevent
directed pelagic shark fisheries from developing.
Response: NMFS disagrees. NMFS believes that target catch limit
requirements can cause an increase in mortality by requiring fishermen
to fish more than they normally would in order to retain the fish they
have already caught. As stated in the HMS FMP, NMFS believes a straight
retention limit is easier to enforce and understand. Once limited
access is in place, NMFS may explore further options for determining
optimal bycatch and incidental allowances.
[[Page 29128]]
Limited Access: Transferability
Comment 1: The preferred alternatives regarding the transferability
of directed and incidental permits are reasonable.
Response: NMFS agrees.
Comment 2: The draft FMP allows for the splitting of permits (4-
37), but the basis for limited access is to limit capacity (by allowing
a vessel that was issued both swordfish and shark limited access
permits to sell one permit while retaining the other, the harvesting
capacity of the overall fleet will increase with the addition of a
second vessel where there had been only one). This is inconsistent and
conflicts with the stated intent of limited access. NMFS should adopt
transferability requirements consistent with those in the Multispecies
and Scallop FMPs. These plans allow transfers of permits to new owners
only with the sale of a vessel or to other replacement vessels,
provided that the new vessel complies with certain upgrading
restrictions.
Response: NMFS disagrees. NMFS believes that selected
transferability restrictions are consistent with the intent of this
limited access program of reducing latent effort and rationalizing
effort with the available quota. NMFS does not believe that fishermen
should have to sell their vessel just because they want to leave the
swordfish or shark fisheries. Accordingly, fishermen may transfer their
permit with or without the sale of the vessel. However, once they sell
their permit, they are out of the fishery. Thus, the capacity and
effort in the fishery remain the same.
Comment 3: Non-transferable individual quotas would be the best
second step of limited access because any fish not harvested would be
conserved, and transferable individual quotas ensure that all fish are
harvested.
Response: NMFS may consider transferable and/or non-transferable
quotas, as well as other management measures to address fleet size and
available quotas, in future rulemaking in conjunction with the HMS AP.
Comment 4: NMFS should allow people who transfer or sell permits
without the vessel to keep their permit inactive (not attached to a
vessel) for a while so there is sufficient time to find and purchase a
sea-worthy vessel. Otherwise, people may have to rush and buy a
replacement vessel so they don't lose their permit when they want to
sell their current vessel.
Response: NMFS agrees. As is currently allowed in other limited
access fisheries, vessel owners may sell their vessel and retain the
limited access permits as long as they inform NMFS in writing that the
permit is inactive within 30 days of the vessel sale. The vessel owner
may then obtain a replacement vessel to which the limited access
permit(s) will be transferred, subject to upgrading and ownership
restrictions, as applicable.
Limited Access: Upgrading
Comment 1: NMFS should adopt the New England and Mid-Atlantic
Fishery Management Council (NEFMC, MAFMC) upgrading restrictions to
address consistency issues across fisheries.
Response: NMFS agrees.
Comment 2: NMFS should not adopt the same upgrading restrictions as
the NEFMC and MAFMC. The majority of fishermen affected by the limited
access system for the Atlantic swordfish and shark fisheries do not
participate extensively in fisheries that are under the jurisdiction of
these councils. The vessel length and horsepower upgrading restrictions
developed by the Councils, which are appropriate for trawl fisheries,
are not appropriate for longline fisheries. Further, increasing vessel
length is an important part of increasing safety at sea, especially for
vessels fishing further and further offshore due to time/area closures
and other regulations.
Response: NMFS believes that regulatory consistency across
fisheries is important to reduce confusion and burdens on fishermen
that participate in multiple fisheries under multiple jurisdictions.
However, NMFS is aware that the upgrading restrictions adopted by the
NEFMC and MAFMC may limit fishermen's abilities to address safety at
sea issues related to vessel length and that the upgrading restrictions
are more tailored to trawl vessels than the longline vessels.
Therefore, NMFS implements the restrictions on vessel upgrading as a
final measure at this time to prevent substantial increases in the
harvesting capacity of HMS vessels but will consider alternative
criteria to control the harvesting capacity in ways that minimize
safety concerns. NMFS will assemble data on hold capacity, consider
requesting hold capacity information on permit applications, and work
with the AP and affected public to consider proposing HMS-specific
vessel upgrading restrictions that account for necessary upgrades in
horsepower and vessel length to address safety concerns.
Limited Access: Ownership Limits
Comment: None of the ownership restrictions proposed (restricting
the number of vessels that any entity could own to no more than five
percent of the permitted vessels or no restrictions on ownership) are
reasonable.
Response: NMFS disagrees. NMFS believes that ownership restrictions
are an effective tool for preserving the historical small owner/
operator nature of the fishery. As such, NMFS will restrict the number
of Atlantic swordfish or shark vessels any one entity can own to no
more than five percent of the directed swordfish or shark permitted
vessels in the directed fisheries.
Issues for Future Consideration
There are issues that were not changed from the proposed rule that
NMFS intends to consider further. These issues include the purse seine
quota cap, prohibiting certain shark species, the practice of
strikenetting in the shark drift gillnet fishery, commercial shark
landing condition, use of fishing gears and gear definitions, etc. As
explained above, NMFS will request the HMS AP to reconsider the purse
seine cap in the context of the ICCAT Rebuilding Program. As to
prohibited shark species, under the SAFE process, NMFS will annually
evaluate the list of species for which possession is authorized under
the management policy that only allows possession of those shark
species known or expected to be able to withstand fishing mortality.
NMFS is currently considering the implications of several regulations
that affect the practice of strikenetting in the shark drift gillnet
fishery. NMFS received comments that requiring recreational anglers to
keep sharks intact while allowing commercial fishermen to head and fin
sharks is unfair. While NMFS strives for consistent regulations among
user groups, concerns about quality and safety of seafood sold for
public consumption resulting from inadequate freezing of shark
carcasses preclude the same regulation for both user groups. However,
these comments warrant further consideration. NMFS will continue to
consult with the public and the HMS and Billfish Advisory Panels on
these issues.
Changes From the Proposed Rule
NMFS made numerous technical and substantive changes from the
proposed rule in response to the comments received, to incorporate
relevant final rules issued after the proposed rule was published, and
to achieve consistency with regulations in other CFR parts.
Changes to incorporate other rulemakings included the supplemental
rule to implement the addendum to the HMS FMP (64 FR 9298, February 25,
1999), the final rule to prohibit the use
[[Page 29129]]
of driftnet gear (64 FR 4055, January 27,1999), and the final rule to
restrict imports of undersized Atlantic swordfish (64 FR 12903, March
16, 1999).
Several technical corrections were made to clarify the regulations
and to remove obsolete regulatory text. Regarding BFT dealer reports,
NMFS no longer uses an interactive voice response system for daily
landing reports. Clarification for the reporting of BFT not sold to a
licensed dealer includes requiring a licensed dealer to tag and report
a fish not sold to it upon the request of the person who landed the
fish. Also the regulations pertaining to angling reports of BFT
landings for states with tagging systems in place were clarified. A
clarification was made to indicate that no BSD is required for southern
bluefin tuna imports. The annual landings quota for the north Atlantic
swordfish stock was changed to reflect values previously published for
the 1999 fishing year. Clarifications were made pertaining to the
installation and operation of vessel monitoring systems. Obsolete
references regarding the ICCAT port inspection scheme were removed.
Notice provisions for changing the commencement dates of tuna fishing
seasons were removed because such changes would now be accomplished by
framework action under the FMP. The regulations pertaining to the use
and possession on board of authorized gear for the Atlantic tunas
fisheries were revised to make clear that the category specific gear
restrictions apply only to the taking of BFT.
Several changes were made to achieve consistency with regulations
contained in other parts of the Code of Federal Regulations. The
listing of approved information collections at 15 CFR part 902 was
updated to account for the consolidation of HMS regulations into 50 CFR
part 635. Given the restructuring of permit categories and
clarifications on allowable fishing gear, the authorized gear listing
at 50 CFR 600.725(v) was updated. Cross references to 50 CFR part 285
were updated to 50 CFR part 635 for the trade documentation
requirements for Pacific bluefin tuna at 50 CFR part 300.
A number of changes to the regulations were made in response to
comments received on the proposed rule. To reduce the reporting burden
given that FAX/OCR technology has been installed, NMFS has removed the
requirement for BFT dealers to mail daily landing reports of BFT and
extended the reporting deadline for the HMS bi-weekly report to 10 days
after the close of the reporting period. NMFS changed the requirement
for attendance at educational workshops for all longline operators to
establish a voluntary program for both recreational and commercial
fishermen. In the billfish fishery, NMFS is not implementing retention
limits but will make adjustments to the minimum size limits as
necessary to ensure that landings do not exceed authorized levels.
These adjustments would be made via interim emergency rule or proposed
and final rule under framework measures in the amendment. Additionally,
the proposed prohibition on the use of multiple hooks when fishing for
billfish is not implemented.
On a trial basis, the proposed observer program for private/charter
recreational fishing trips is being implemented as a voluntary rather
than mandatory program. However, observers are required for all shark
drift gillnet trips.
Another change is removal of the proposed exemption of the
requirement to obtain a HMS Charter/Headboat permit for vessels having
a Charter/Headboat permit issued under any northeast or southeast
regional FMP. However, this permit requirement will not be made
effective until OMB approval for the increased reporting burden is
obtained.
The proposed time/area closure for the Florida Straits to protect
small swordfish is not implemented. A more effective closure is needed
to reduce small swordfish bycatch. NMFS will convene a meeting of the
HMS AP to address this issue and will publish a proposed rule by
September 1999. The northeastern United States time/area closure
designed to reduce incidental take of BFT by pelagic longlines has been
reduced in size from that initially proposed due to public comment
regarding safety and economic impact, as well as revisions in the
analyses conducted regarding this closure. NMFS will not close the
proposed areas to protect northern right whales at this time because
pelagic longline fishermen have not fished in those areas in the past
and are not expected to in the future. If interactions between pelagic
longline gear and right whales in these areas become likely to occur,
NMFS will seek appropriate action under the authority of the Marine
Mammal Protection Act.
The prohibition on the retention of blue sharks, as proposed for
both the commercial and recreational fishing sectors, is not
implemented. The shark recreational catch limit is changed to one shark
of any allowed species per vessel per trip, with a minimum size of 4.5
ft (137 cm). In addition, one Atlantic sharpnose per angler per trip is
allowed, with no minimum size.
Classification
These final regulations are published under the authority of the
Magnuson-Stevens Act and ATCA. The Assistant Administrator has
determined that these regulations are necessary to implement the
recommendations of ICCAT and are necessary for the management of the
Atlantic tunas, swordfish, shark and billfish fisheries.
NMFS prepared an initial regulatory flexibility analysis to assess
the impacts on small entities of the provisions of the proposed rule
that would implement the HMS FMP. Based on public comments, as
described above, NMFS changed certain provisions for the final rule to
mitigate the impacts on small entities and prepared a FRFA.
Logbook data indicate that fishermen routinely enter and exit HMS
fisheries and this dynamic participation suggests that the universe
should not be limited only to ``active'' participants; i.e., those who
landed HMS in a given year. For example, NMFS found that of the over
2,000 permitted shark fishermen in 1995 and 1996, only 352 landed at
least one large coastal sharks in both years. However, in both years
over 500 fishermen landed at least one large coastal sharks; additional
fishermen landed pelagic and small coastal sharks. Limiting the
universe to the 352 permit holders who participated in the large
coastal sharks fishery in both years would ignore the potential loss of
opportunity experienced by permit holders who did participate in only
one of those two years but who are regularly ``active'' in the fishery.
Logbooks also show the multi-species nature of HMS fisheries. Few
fishermen rely solely on one species of HMS or even on multiple species
of HMS. Instead, fishermen fish for, and rely on, other species in
addition to HMS including but not limited to mackerel, snapper-grouper,
reef fish, dolphin, and oilfish. Previous studies in the area of
natural resource valuation have shown that people, including fishermen,
value the mere existence of opportunities regardless of whether they
actually make use of them or not, and are willing to pay for the
existence of options, which is separate from the profit that they could
earn from exercising those options.
In the HMS FMP, the proposed rule and supplement, specific economic
concerns for small entities included the time/area closure for pelagic
longline fishermen in the Florida Straits and the northeastern United
States, the non-ridgeback LCS quota reduction, and limited access
measures for the swordfish and shark fisheries. Based on comments
received, NMFS has not
[[Page 29130]]
implemented the Florida Straits closure and will convene a meeting of
the HMS and Billfish APs to address time/area closures more
effectively. Additionally, NMFS reduced the size of the northeastern
United States closed area. NMFS concluded that alternative time/area
closures could have less severe economic impacts on the pelagic
longline fishery participants while addressing the bycatch concerns for
BFT, undersized swordfish, and billfish.
NMFS concluded that separation of the LCS management group into
ridgeback and non-ridgeback LCS and reduction of the quota for non-
ridgeback LCS was the best alternative to rebuild overfished LCS stocks
while minimizing adverse economic impacts on LCS fishermen because it
allows higher harvest levels than those maintained if the LCS
management group were kept as a single group. This measure should
rebuild ridgeback LCS stocks consistent with the Magnuson-Stevens Act
requirements to rebuild overfished fisheries and to consider the
impacts of fishery resources on communities. NMFS estimates that some
participants may cease business operations due to this action, but that
more may cease operations under other alternatives that would not
minimize economic impacts to this extent.
The limited access system implemented in this final rule affects
all current permit holders in the Atlantic swordfish and shark
fisheries and those vessels fishing for Atlantic tunas with longlines.
The intent of limited access is to exclude only those fishermen whose
logbook records indicate they are neither active nor dependent on the
swordfish and shark fisheries, except that current tuna longline
fishermen would automatically receive a swordfish or shark limited
access permit to authorize landing of incidental catch. Based on
comments received, NMFS adjusted the qualifying criteria to further
reduce the likelihood of removing any active entity dependent on the
fishery.
In summary, the final regulatory flexibility analyses found that,
overall, the final actions for bluefin tuna and swordfish rebuilding
and the bluefin tuna time/area closure may have some negative economic
impact. In addition, the combination of final actions for sharks (quota
reductions, minimum sizes, retention limits, and counting dead discards
and state landings after Federal closures against Federal quotas) may
result in the elimination of the directed commercial fisheries for
large coastal sharks, and may substantially impact commercial fisheries
for pelagic sharks and small coastal sharks in the U.S. exclusive
economic zone. In addition, because these regulations will have a
significant impact on commercial fishermen, the HMS FMP will likely
also impact related parties and communities such as processors and
bait/gear suppliers. Some of the final actions (the mid-Atlantic time/
area closure, vessel monitoring system) may increase costs.
However, as a group, the final actions in the HMS FMP were
specifically chosen both to minimize any economic impacts to the extent
practicable and to meet the goals of the HMS FMP and the Magnuson-
Stevens Act, namely to prevent overfishing and rebuild overfished
stocks. In the long term, the economic impacts endured now will be less
than the economic impacts endured if HMS fisheries continue to decline
and become commercially extinct.
The RIR/FRFA for the HMS FMP provides further discussion of the
economic effects of all the alternatives considered in the final HMS
FMP. A copy of the FRFA is available from NMFS (see ADDRESSES).
To ensure that the impacts of the Amendment 1 to the Atlantic
Billfish FMP were fully analyzed, NMFS prepared an IRFA pursuant to 5
U.S.C. 603 without regard to whether the proposed action would have a
significant economic impact on a substantial number of small entities.
Aspects of the proposed rule that could have affected small entities in
the billfish fisheries included a retention limit of one Atlantic
billfish per vessel per trip and a provision that would reduce the
retention limit for blue and/or white marlin to zero if landing limits
were reached. NMFS received comments that tournaments may be canceled
or may experience a significant reduction in participation if fishermen
are not allowed to land a billfish that meets the legal size
constraints. NMFS concluded that the alternative of minimum size limits
with the possibility of increased size limits through framework
regulatory adjustments could restrict landings to the allowable level
without undue economic impacts.
The RIR/FRFA for Amendment 1 to the Atlantic Billfish FMP provides
further discussion of the economic impacts of all the alternatives
considered. A copy of the RIR/FRFA is available from NMFS (see
ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection-of-information subject to the requirements
of the Paperwork Reduction Act (PRA), unless that collection of
information displays a currently valid Office of Management and Budget
(OMB) control number.
This final rule contains new and revised collection-of-information
requirements, subject to review and approval by OMB under the PRA, and
restates several previously approved requirements. In particular, five
new reporting requirements would include position reports from a
vessel-monitoring system for all pelagic longline vessels; gear marking
and vessel identification requirements for longline and shark gillnet
gear, and for handgear and harpoon floats; permits for all HMS Charter/
Headboat vessels; logbooks for all Atlantic tuna vessels and HMS
Charter/Headboat vessels; and revised reporting procedures for exempted
fishing permits. The following specific reporting and recordkeeping
requirements have been approved by OMB or are pending OMB approval (as
noted):
1. Requirement for HMS Charter/Headboat permits in Sec. 635.4,
estimated at 30 minutes per initial permit application and 6 minutes
per renewal, will be submitted for OMB clearance. NMFS reserves the
effective date of the requirement until OMB approval is obtained.
2. Atlantic tunas vessel permits in Sec. 635.4 (approved under OMB
control number 0648-0327), estimated at 30 minutes per initial permit
application and 6 minutes per renewal; and Atlantic tunas dealer
permits in Sec. 635.4 (approved under OMB control number 0648-0202),
estimated at 5 minutes per permit action.
3. Shark and swordfish vessel permits in Sec. 635.4 (approved under
OMB control number 0648-0205), estimated at 20 minutes per permit
action; and shark and swordfish dealer permits in Sec. 635.4 (approved
under OMB control number 0648-0205), estimated at 5 minutes per permit
action. Importer permitting requirements for swordfish in Sec. 635.4,
estimated at 5 minutes per application, have been approved by OMB under
0648-0205.
4. Dealer reporting and recordkeeping requirements for Atlantic
bluefin tuna in Sec. 635.5 (approved under OMB control number 0648-
0239), estimated at 3 minutes for daily reports, 14 minutes per bi-
weekly report of fish purchases, and 1 minute to affix tags and label
containers.
5. Dealer reporting and recordkeeping requirements for Atlantic
swordfish and sharks in Sec. 635.5 (approved under OMB control numbers
0648-0013) estimated at 15 minutes per bi-weekly report of fish
purchases and 3 minutes per negative report. Importer reporting
[[Page 29131]]
requirements for swordfish in Sec. 635.5, estimated at 15 minutes per
bi-weekly report, have been approved by OMB under 0648-0013.
6. Vessel reporting and recordkeeping requirements for swordfish
and sharks in Sec. 635.5 (currently approved under OMB control number
0648-0016) estimated at 10 minutes per logbook entry, including the
attachment of tally sheets, and 2 minutes for a negative catch report
or a no-fishing report. OMB has approved (0648-0371) a request from
NMFS to consolidate the swordfish and shark logbooks with new vessel
reporting requirements for Atlantic tunas and HMS charter/headboats in
Sec. 630.5 estimated at 12 minutes per logbook entry and 2 minutes for
a negative catch report. NMFS intends to randomly select 10 percent of
the tuna vessels and all HMS charter/headboats on an annual basis.
While NMFS intends to consolidate HMS logbooks under a new information
collection, there will be an initial trial period for tuna vessels and
HMS charter/headboats with the pelagic logbook forms currently approved
under 0648-0016. After evaluation of the program, NMFS will request OMB
approval to issue logbooks tailored to the specific reporting
requirements of individual fishery segments.
7. Fishing tournament registration and selective reporting in
Sec. 635.5 (approved under OMB control number 0648-0323) estimated at
10 minutes per report.
8. Swordfish and shark limited access permit documentation
requirements in Sec. 635.16 (approved under OMB control number 0648-
0325) estimated at 1.5 hours per response.
9. Vessel identification requirements for permitted HMS vessels in
Sec. 635.6 estimated at 45 minutes per vessel, have been approved by
OMB under control number 0648-0373.
10. HMS gear marking requirements in Sec. 635.6, estimated at 15
minutes per action and pertaining to longline gear (terminal floats and
hi-flyers), shark nets (terminal floats) and harpoon and handgear
floats, have been approved by OMB under control number 0648-0373.
11. Notification for at-sea observer requirements for Atlantic
tuna, swordfish, and shark vessels in Sec. 635.7, estimated at 2
minutes per response, has been approved by OMB under control number
0648-0374.
12. Position reporting and communication from a vessel monitoring
system in Sec. 635.69, estimated at 0.033 seconds per position report
or 5 minutes per vessel per year, 4 hours for installation, and 2 hours
for annual maintenance, has been approved by OMB under control number
0648-0372.
13. BFT purse seine inspection requests in Sec. 635.21 (approved
under OMB control number 0648-0202) estimated at 5 minutes per request.
14. Angler reporting of trophy BFT and reporting by commercial
vessels of large medium and giant BFT that are not sold to dealers as
required in Sec. 635.5 (approved under OMB control number 0648-0239)
are estimated at 3 minutes per report, and Angler reporting of school
and medium tuna in Sec. 635.5 (approved under OMB control number 0648-
0328) is estimated at 5 minutes per response.
15. HMS catch and release program requirements in Sec. 635.26
(approved under OMB control number 0648-0247) estimated at 2 minutes
per tagging card.
16. Documentation requirements for sale of billfish in Sec. 635.31
(approved under OMB control number 0648-0216) estimated at 20 minutes
for dealers purchasing from vessels and 2 minutes for subsequent
purchasers.
17. Swordfish Certificate of Eligibility in Sec. 635.46, estimated
at 60 minutes per document, has been approved under OMB control number
0648-0363. Bluefin tuna statistical documents in Sec. 635.42, estimated
at 20 minutes per fish import report, and government validation of BSDs
in Sec. 635.44, estimated at 2 hours per occurrence, have been approved
by OMB under control number 0648-0040.
18. Revised application and reporting requirements for EFPs in
Sec. 635.32, estimated at 30 minutes per application, 5 minutes per
fish collection report, and 30 minutes per annual summary report, have
been approved by OMB under control number 0648-0309.
19. Archival tag reporting requirements in Sec. 635.33, estimated
at 1.5 hours for implantation reports and 30 minutes per fish catch
report, have been approved by OMB under control number 0648-0338.
Written requests for purse seine allocations for Atlantic tunas as
required under Sec. 635.27 are not currently approved by OMB. Requests
for purse seine allocations are not subject to the PRA because, under
current regulations, a maximum of five vessels could be subject to
reporting under this requirement. Since it is impossible for 10 or more
respondents to be involved, the information collection is exempt from
the PRA clearance requirement.
Certificate of eligibility requirements for imports of fish subject
to trade restrictions under Sec. 635.40 are not currently approved by
OMB. These regulations were required under ATCA and were originally
issued prior to the enactment of the PRA. NMFS will consult with OMB
prior to implementing any trade restrictions under this section. While
ATCA and the implementing regulations at Sec. 635.40 authorize
unilateral trade action by the United States, it is more likely that
multilateral action would be taken upon a recommendation of ICCAT. In
such case, notice and comment rulemaking procedures under ATCA would
apply and OMB clearance for information collections would be requested
prior to issuance of a proposed rule.
The AA, under 5 U.S.C. 553(d)(3), finds that it would be contrary
to the public interest to delay the effective date of the billfish
minimum size limits, the pelagic longline time/area closure, and the
bluefin tuna quota and effort control specifications for 30 days. The
AA finds that these measures are necessary to initiate rebuilding of
overfished stocks, to manage fisheries that are currently active, and
to comply with international obligations.
Given NMFS' ability to rapidly communicate these regulations to
fishing interests through the FAX network, NOAA weather radio, and HMS
Infoline, the AA has determined there is good cause for a waiver of the
30-day delay in the effective date because such delay would be contrary
to the public good. The AA is delaying the effective dates of the VMS
and charter boat and headboat permit requirements, and the effective
dates of these requirements are listed above.
NMFS requested a formal consultation under section 7 of the ESA on
the HMS fisheries as managed under the HMS FMP and Billfish Amendment.
The consultation request concerned the possible effects of management
measures in the Amendment 1 to the Billfish FMP and the HMS FMP,
including implementation of AOCTRP measures for the pelagic longline
fishery and ALWTRP measures for the southeast shark gillnet fishery. In
a BO issued on April 23, 1999, NMFS concluded that: (1) continued
operation of the shark gillnet fishery may adversely affect, but with
management measures previously implemented under the ALWTRP and
contained in the HMS FMP, is not likely to jeopardize the continued
existence of the north Atlantic right whale; (2) continued operation of
the shark gillnet fishery may adversely affect, but is not likely to
jeopardize the continued existence of humpback, fin or sperm whales, or
Kemp's ridley, green, loggerhead, hawksbill or leatherback sea turtles;
(3) continued operation of the pelagic longline and purse seine
[[Page 29132]]
fisheries may adversely affect, but is not likely to jeopardize the
continued existence of any endangered or threatened species under NMFS
jurisdiction; and (4) continued operation of the HMS handgear fisheries
may adversely affect, but is not likely to jeopardize the continued
existence of any endangered or threatened species under NMFS
jurisdiction.
NMFS also concluded that no component of the HMS fisheries would
result in adverse modification of critical habitat designated for the
northern right whale. These conclusions are based upon the
effectiveness of measures implemented in this final rule, the
attainment of adequate observer coverage in applicable fisheries, and
full implementation of the requirements of the May 29, 1997 BO as
amended on August 5 and 29, 1997, and July 10, 1998.
NMFS has determined that the final actions in these plans are
consistent to the maximum extent practicable with the coastal zone
management programs of those Atlantic, Gulf of Mexico, and Caribbean
coastal states that have approved coastal zone management programs. The
draft HMS FMP, draft Billfish Amendment, and draft Addendum to the HMS
FMP were submitted to the responsible state agencies for their review
under Section 307 of the Coastal Zone Management Act. The States of New
York, Virginia, North Carolina, South Carolina, Mississippi, and
Louisiana certified that the HMS FMP and Billfish Amendment concur with
their applicable CZMA regulations. The States of Rhode Island and
Delaware certified that the HMS FMP concurs with their applicable CZMA
regulations. The States of Massachusetts, Connecticut, Pennsylvania,
New Jersey, Georgia, and Texas certified that the Billfish Amendment
concurs with their applicable CZMA regulations. The States of
Pennsylvania, Virginia, and Georgia certified that the Addendum to the
HMS FMP concurs with their applicable CZMA regulations. NMFS presumes
that the remaining states that did not respond also concur.
The State of Georgia objected to the HMS FMP based on the
continuing operation of the southeast shark drift gillnet fishery in
Federal waters off its state waters. NMFS shares the State of Georgia's
concern regarding bycatch and bycatch mortality rates in this fishery
and is gathering information on the effect of drift gillnets in
Atlantic shark fisheries on protected species, juvenile sharks, and
other finfish. However, because the limited data available at this time
do not indicate high bycatch and bycatch mortality of protected
species, juvenile sharks, and other finfish in the shark drift gillnet
fishery, and because bycatch of endangered species in this fishery is
regulated under the Endangered Species Act already, NMFS is not
prohibiting use of this gear in shark fisheries at this time,
consistent with National Standard 2 which requires that management
measures be based on the best scientific information available. In the
HMS FMP, NMFS requires 100-percent observer coverage in the southeast
shark drift gillnet fishery at all times to increase data on catch,
effort, bycatch and bycatch mortality rates in this fishery. Thus, the
final action is consistent with Georgia's Coastal Zone Plan to the
maximum extent practicable. NMFS encourages the State of Georgia to
submit any data collected through state activities and will continue to
work with the State to address the issues with this fishery.
This final rule has been determined to be significant for purposes
of E.O. 12866.
NMFS prepared a FEIS for the HMS FMP and an FEIS for the Billfish
FMP Amendment. The Environmental Protection Agency published the notice
of availability of the FEIS for the HMS FMP on March 19, 1999, and the
notice of availability of the FSEIS for the Atlantic billfish FMP
amendment on March 26, 1999. Although the FMP and amendment discuss
concerns with safety at sea, the final actions are not expected to have
any substantial adverse impacts on public health or safety. The
cumulative long-term impact of the final actions is to establish
sustainable fisheries for Atlantic tunas, swordfish, sharks, and
billfish. In the case of overfished stocks (west Atlantic bluefin tuna,
bigeye tuna, north Atlantic swordfish, large coastal sharks, blue
marlin, white marlin and sailfish), achievement of this long-term goal
is dependent upon rebuilding the stocks. The final actions will not
jeopardize the productive capacity of the target species. Although in
some cases the final actions may cause an increase in fishing pressure
on non-target stocks, such as dolphin and wahoo, these effects have
been considered and are not expected to jeopardize the productive
capacity of the non-target fish species. Furthermore, the final actions
are not expected to have any adverse effects on ocean and coastal
habitats. The measures established in this final rule are expected to
reduce the rate of serious injury and mortality caused to marine
mammals by the pelagic longline and shark drift gillnet fisheries and
are not expected to result in cumulative adverse impacts that might
have a substantial effect on endangered and threatened species. In
fact, the over-arching goal of the FMP and the Atlantic billfish FMP
amendment is to implement rebuilding plans to reduce directed and
bycatch mortality rates for overfished stocks Atlantic-wide and to
manage healthy stocks for the optimum yield. As no significant negative
environmental impacts are expected to result from the final actions, no
mitigating measures are adopted.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 285
Fisheries, Fishing, Penalties, Reporting and recordkeeping
requirements, Treaties.
50 CFR Part 300
Exports, Fish, Fisheries, Fishing, Imports, Labeling, Marine
resources, Penalties, Reporting and recordkeeping requirements,
Transportation, Treaties, and Wildlife.
50 CFR Parts 600, 630, 635, 644, and 678
Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated: May 18, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapters II, III, and VI are amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. Effective July 1, 1999, in Sec. 902.1, paragraph (b), the table
is amended by removing, in the left column under 50 CFR, all of the
entries for parts 285, 630, 644, and 678, and, in the right column in
corresponding positions, the control numbers, and by adding, in
numerical order, the following entries to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
[[Page 29133]]
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (All numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
300.27 -0040
* * * * *
635.4(d) -0327 and -0205
635.4(g) -0202 and -0205
635.5(a) -0371 and -0328
635.5(b) -0013 and -0239
635.5(c) -0339
635.5(d) -0328
635.5(e) -0323
635.6(c) -0373
635.7(c) -0374
635.16 -0325
635.21(d) -0202
635.26 -0247
635.31(b) -0216
635.32 -0309
635.33 -0338
635.42 -0040
635.43 -0040
635.44 -0040
635.46(b) -0363
635.69(a) -0372
* * * * *
------------------------------------------------------------------------
50 CFR Chapter II
PART 285--ATLANTIC TUNAS FISHERIES [REMOVED]
3. Under the authority of 16 U.S.C. 971 et seq., part 285 is
removed effective July 1, 1999 except that Sec. 285.22 is removed and
reserved effective May 24, 1999.
50 CFR Chapter III
PART 300--INTERNATIONAL FISHERIES REGULATIONS
4. The authority citation for part 300 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 951-961 and 971 et
seq.; 16 U.S.C. 973-973r; 16 U.S.C. 2431 et seq.; 16 U.S.C. 3371-
3378; 16 U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 U.S.C. 1801
et seq.
5. Effective July 1, 1999, in Sec. 300.21, the definition for
``tag'' is revised to read as follows:
Sec. 300.21 Definitions.
* * * * *
Tag means the dealer tag, a flexible self-locking ribbon issued by
NMFS for the identification of bluefin tuna under Sec. 300.26, or the
BSD tag specified under Sec. 635.42 (a)(2) of this title.
* * * * *
Secs. 300.24, 300.25, and 300.26 [Amended]
6. Effective July 1, 1999, in Secs. 300.24, 300.25 and 300.26, the
term ``the Regional Director'', wherever it appears, is replaced by
``NMFS''.
7. Effective July 1, 1999, in Sec. 300.25, paragraph (a)(1) is
revised to read as follows:
Sec. 300.25 Pacific bluefin tuna--Dealer recordkeeping and reporting.
* * * * *
(a) * * *
(1) The report required to be submitted under this paragraph (a)
must be postmarked within 10 days after the end of each 2-week
reporting period in which Pacific bluefin tuna were exported. The bi-
weekly reporting periods are defined as the first day to the 15th day
of each month and the 16th day to the last day of the month.
* * * * *
8. Effective July 1, 1999, in Sec. 300.26, paragraph (d) is revised
to read as follows:
Sec. 300.26 Pacific bluefin tuna--Tags.
* * * * *
(d) Removal. A NMFS-issued numbered tag affixed to any Pacific
bluefin tuna at the option of any permitted dealer under paragraph (c)
of this section or any tag affixed to any Pacific bluefin tuna to meet
the requirements of Sec. 635.42(a)(2) of this title must remain on the
tuna until the tuna is cut into portions. If the tuna or tuna parts
subsequently are packaged for transport for domestic commercial use or
for export, the number on each tag attached to each tuna or its parts
must be written legibly and indelibly on the outside of any package or
container.
* * * * *
9. Effective July 1, 1999, Sec. 300.27 is revised to read as
follows:
Sec. 300.27 Pacific bluefin tuna--Documentation requirements.
Bluefin tuna imported into, or exported or re-exported from the
customs territory of the United States is subject to the documentation
requirements specified in Secs. 635.41 through 635.44 of this title.
10. Effective July 1, 1999, in Sec. 300.28, paragraphs (b) and(c)
are revised to read as follows:
Sec. 300.28 Pacific bluefin tuna--Prohibitions.
* * * * *
(b) Remove any NMFS-issued numbered tag affixed to any Pacific
bluefin tuna at the option of any permitted dealer or any tag affixed
to a Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2)
of this title, before removal is allowed under Sec. 300.26, or fail to
write the tag number on the shipping package or container as specified
in Sec. 300.26.
(c) Reuse any NMFS-issued numbered tag affixed to a Pacific bluefin
tuna at the option of a permitted dealer or any tag affixed to a
Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of
this title or reuse any tag number previously written on a shipping
package or container as prescribed by Sec. 300.26.
50 CFR Chapter VI
PART 600-MAGNUSON-STEVENS ACT PROVISIONS
11. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
12. Effective July 1, 1999, in Sec. 600.10, the definition for
``Drift gillnet'' is removed and the definitions for ``Albacore'',
``Angling'', ``Atlantic tunas'', ``Atlantic Tunas Convention Act'',
``Bigeye tuna'', ``Billfish'', ``Bluefin tuna'', ``Blue marlin'',
``Carcass'', ``Catch limit'', ``Charter boat'', ``Fillet'', ``Fish
weir'', ``Headboat'', ``Land'', ``Longbill spearfish'', ``Postmark'',
``Purchase'', ``Round'', ``Sailfish'', ``Sale or sell'', ``Skipjack
tuna'', ``Swordfish'', ``Trip'', ``White marlin'', and ``Yellowfin
tuna'' are added in alphabetical order to read as follows:
Sec. 600.10 Definitions.
* * * * *
Albacore means the species Thunnus alalunga, or a part thereof.
* * * * *
Angling means fishing for, attempting to fish for, catching or
attempting to catch fish by any person (angler) with a hook attached to
a line that is hand-held or by rod and reel made for this purpose.
* * * * *
Atlantic tunas means bluefin, albacore, bigeye, skipjack, and
yellowfin tunas found in the Atlantic Ocean.
Atlantic Tunas Convention Act means the Atlantic Tunas Convention
Act of 1975, 16 U.S.C. 971-971h.
* * * * *
Bigeye tuna means the species Thunnus obesus, or a part thereof.
Billfish means blue marlin, longbill spearfish, sailfish, or white
marlin.
Bluefin tuna means the species Thunnus thynnus, or a part thereof.
Blue marlin means the species Makaira nigricans, or a part thereof.
* * * * *
[[Page 29134]]
Carcass means a fish in whole condition or that portion of a fish
that has been gilled and/or gutted and the head and some or all fins
have been removed, but that is otherwise in whole condition.
* * * * *
Catch limit means the total allowable harvest or take from a single
fishing trip or day, as defined in this section.
* * * * *
Charter boat means a vessel less than 100 gross tons (90.8 mt) that
meets the requirements of the U.S. Coast Guard to carry six or fewer
passengers for hire.
* * * * *
Fillet means to remove slices of fish flesh from the carcass by
cuts made parallel to the backbone.
* * * * *
Fish weir means a large catching arrangement with a collecting
chamber that is made of non-textile material (wood, wicker) instead of
netting as in a pound net.
* * * * *
Headboat means a vessel that holds a valid Certificate of
Inspection issued by the U.S. Coast Guard to carry passengers for hire.
* * * * *
Land means to begin offloading fish, to offload fish, or to arrive
in port or at a dock, berth, beach, seawall, or ramp.
Longbill spearfish means the species Tetrapturus pfluegeri, or a
part thereof.
* * * * *
Postmark means independently verifiable evidence of the date of
mailing, such as a U.S. Postal Service postmark, or other private
carrier postmark, certified mail receipt, overnight mail receipt, or a
receipt issued upon hand delivery to a representative of NMFS
authorized to collect fishery statistics.
* * * * *
Purchase means the act or activity of buying, trading, or
bartering, or attempting to buy, trade, or barter.
* * * * *
Round means a whole fish--one that has not been gilled, gutted,
beheaded, or definned.
* * * * *
Sailfish means the species Istiophorus platypterus, or a part
thereof.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
* * * * *
Skipjack tuna means the species Katsuwonus pelamis, or a part
thereof.
* * * * *
Swordfish means the species Xiphias gladius, or a part thereof.
* * * * *
Trip means the time period that begins when a fishing vessel
departs from a dock, berth, beach, seawall, ramp, or port to carry out
fishing operations and that terminates with a return to a dock, berth,
beach, seawall, ramp, or port.
* * * * *
White marlin means the species Tetrapturus albidus, or a part
thereof.
Yellowfin tuna means the species Thunnus albacares, or a part
thereof.
13. Effective July 1, 1999, Sec. 600.15 is amended by redesignating
paragraphs (a)(7) through (a)(11) as paragraphs (a)(11) through
(a)(15), respectively, by redesignating paragraphs (a)(2) through
(a)(6) as paragraphs (a)(5) through (a)(9), respectively, and by adding
paragraphs (a)(2) through (a)(4) and paragraph (a)(10) to read as
follows:
Sec. 600.15 Other acronyms.
(a) * * *
(2) ATCA-Atlantic Tunas Convention Act
(3) BFT (Atlantic bluefin tuna) means the subspecies of bluefin
tuna, Thunnus thynnus thynnus, or a part thereof, that occurs in the
Atlantic Ocean.
(4) BSD means the ICCAT bluefin tuna statistical document.
* * * * *
(10) ICCAT means the International Commission for the Conservation
of Atlantic Tunas.
* * * * *
14. Effective July 26, 1999, in Sec. 600.725, paragraph (v), the
table is amended by revising all entries under the last subheading
``Secretary of Commerce'' to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(v) * * *
----------------------------------------------------------------------------------------------------------------
Fishery Allowable gear types
----------------------------------------------------------------------------------------------------------------
* * * * *
----------------------------------------------------------------------------------------------------------------
Secretary of Commerce
----------------------------------------------------------------------------------------------------------------
Atlantic Tunas, Swordfish and Sharks FMP:
A. Swordfish handgear fishery............... A. Rod and reel, harpoon, handline, bandit gear.
B. Pelagic longline fishery................. B. Longline.
C. Shark drift gillnet fishery.............. C. Gillnet.
D. Shark bottom longline fishery............ D. Longline.
E. Shark handgear fishery................... E. Rod and reel, handline, bandit gear.
F. Tuna purse seine fishery................. F. Purse seine.
G. Tuna recreational fishery................ G. Rod and reel, handline.
H. Tuna handgear fishery.................... H. Rod and reel, harpoon, handline, bandit gear.
I. Tuna harpoon fishery..................... I. Harpoon.
Atlantic Billfish FMP:
Recreational fishery........................ Rod and reel.
----------------------------------------------------------------------------------------------------------------
PART 630--ATLANTIC SWORDFISH FISHERY [REMOVED]
15. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801
et seq., part 630 is removed effective July 1, 1999.
16. Part 635 is added and is effective July 1, 1999, except that
Sec. 635.25 is effective May 24, 1999, Sec. 635.69 is effective
September 1, 1999, and Sec. 635.4(b) will be effective on a date to be
announced and published after OMB approves the information collection
requirements, to read as follows:
[[Page 29135]]
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
Subpart A--General
Sec.
635.1 Purpose and scope.
635.2 Definitions.
635.3 Relation to other laws.
635.4 Permits and fees.
635.5 Recordkeeping and reporting.
635.6 Vessel and gear identification.
635.7 At-sea observer coverage.
Subpart B--Limited Access
635.16 Limited access permits.
Subpart C--Management Measures
635.20 Size limits.
635.21 Gear operation and deployment restrictions.
635.22 Recreational retention limits.
635.23 Retention limits for BFT.
635.24 Commercial retention limits for sharks and swordfish.
635.25 Interim Provisions
635.26 Catch and release.
635.27 Quotas.
635.28 Closures.
635.29 Transfer at sea.
635.30 Possession at sea and landing.
635.31 Restrictions on sale and purchase.
635.32 Specifically authorized activities.
635.33 Archival tags.
635.34 Adjustment of management measures.
Subpart D--Restrictions on Imports
635.40 Restrictions to enhance conservation.
635.41 Species subject to documentation requirements.
635.42 Documentation requirements.
635.43 Contents of documentation.
635.44 Validation requirements.
635.45 Import restrictions for Belize, Honduras, and Panama.
635.46 Import restrictions on swordfish.
635.47 Ports of entry.
Subpart E--International Port Inspection
635.50 Basis and purpose.
635.51 Authorized officer.
635.52 Vessels subject to inspection.
635.53 Reports.
Subpart F--Enforcement
635.69 Vessel monitoring systems.
635.70 Penalties.
635.71 Prohibitions.
Appendix A to Part 635--Species Tables
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
Subpart A--General
Sec. 635.1 Purpose and scope.
(a) The regulations in this part govern the conservation and
management of Atlantic tunas, Atlantic billfish, Atlantic sharks, and
Atlantic swordfish under the authority of the Magnuson-Stevens Act and
ATCA. They implement the Fishery Management Plan for Atlantic Tunas,
Swordfish, and Sharks, and the Fishery Management Plan for Atlantic
Billfishes. The Atlantic tunas regulations govern conservation and
management of Atlantic tunas in the management unit. The Atlantic
billfish regulations govern conservation and management of Atlantic
billfish in the management unit. The Atlantic swordfish regulations
govern conservation and management of North and South Atlantic
swordfish in the management unit. North Atlantic swordfish are managed
under the authority of both ATCA and the Magnuson-Stevens Act. South
Atlantic swordfish are managed under the sole authority of ATCA. The
shark regulations govern conservation and management of sharks in the
management unit, solely under the authority of the Magnuson-Stevens
Act. Sharks are managed under the authority of the Magnuson-Stevens
Act.
(b) Under section 9(d) of ATCA, NMFS has determined that the
regulations contained in this part with respect to Atlantic tunas are
applicable within the territorial sea of the United States adjacent to,
and within the boundaries of, the States of New Hampshire,
Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland,
Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama,
Louisiana and Texas, and the Commonwealths of Puerto Rico and the
Virgin Islands. NMFS will undertake a continuing review of State
regulations to determine if regulations applicable to Atlantic tunas,
swordfish or billfish are at least as restrictive as regulations
contained in this part and if such regulations are effectively
enforced. In such case, NMFS will file with the Office of the Federal
Register for publication notification of the basis for the
determination and of the specific regulations that shall or shall not
apply in the territorial sea of the identified State.
Sec. 635.2 Definitions.
In addition to the definitions in the Magnuson-Stevens Act, ATCA,
and Sec. 600.10 of this chapter, the terms used in this part have
following meanings. If applicable, the terms used in this part
supercede those used in Sec. 600.10:
Archival tag means a device that is implanted or affixed to a fish
to electronically record scientific information about the migratory
behavior of that fish.
ATCA Certificate of Eligibility (COE) means the certificate that
must accompany any applicable shipment of fish pursuant to a finding
under 16 U.S.C. 971d (c)(4) or (c)(5).
Atlantic HMS means Atlantic tunas, billfish, sharks, and swordfish.
Atlantic Ocean, as used in this part, includes the North and South
Atlantic Oceans, the Gulf of Mexico, and the Caribbean Sea.
BFT landings quota means the portion of the ICCAT BFT catch quota
allocated to the United States against which landings of BFT are
counted.
Billfish Certificate of Eligibility (COE) means a certificate that
accompanies a shipment of billfish indicating that the billfish or
related species, or parts thereof, are not from the respective Atlantic
Ocean management units.
BSD tag means a numbered tag affixed to a BFT issued by any country
in conjunction with a catch statistics information program and recorded
on a BSD.
Caudal keel means the horizontal ridges along each side of a fish
at the base of the tail fin.
CFL (curved fork length) means the length of a fish measured from
the tip of the upper jaw to the fork of the tail along the contour of
the body in a line that runs along the top of the pectoral fin and the
top of the caudal keel.
CK means the length of a fish measured along the body contour,
i.e., a curved measurement, from the point on the cleithrum that
provides the shortest possible measurement along the body contour to
the anterior portion of the caudal keel. The cleithrum is the
semicircular bony structure at the posterior edge of the gill opening.
Convention means the International Convention for the Conservation
of Atlantic Tunas, signed at Rio de Janeiro, Brazil, on May 14, 1966,
20 U.S.T. 2887, TIAS 6767, including any amendments or protocols
thereto, which are binding upon the United States.
Conventional tag means a numbered, flexible ribbon that is
implanted or affixed to a fish that is released back into the ocean
that allows for the identification of that fish in the event it is
recaptured.
Dealer tag means the numbered, flexible, self-locking ribbon issued
by NMFS for the identification of BFT sold to a permitted dealer as
required under Sec. 635.5(b)(2)(ii).
Dehooking device means a device intended to remove a hook embedded
in a fish in order to release the fish with minimum damage.
Designated by NMFS means the address or location indicated in a
letter to permit holders or in a letter accompanying reporting forms.
Division Chief means the Chief, Highly Migratory Species Management
Division, NMFS (F/SF1), 1315 East-West
[[Page 29136]]
Highway, Silver Spring, MD, 20910; (301) 713-2347.
Downrigger means a piece of equipment attached to a vessel and with
a weight on a cable that is in turn attached to hook-and-line gear to
maintain lures or bait at depth while trolling. The downrigger has a
release system to retrieve the weight by rod and reel or by manual,
electric, or hydraulic winch after a fish strike on the hook-and-line
gear.
Dress means to process a fish by removal of head, viscera, and
fins, but does not include removal of the backbone, halving,
quartering, or otherwise further reducing the carcass.
Dressed weight (dw) means the weight of a fish after it has been
dressed.
EFP means an exempted fishing permit issued pursuant to
Sec. 600.745 of this chapter or to Sec. 635.32.
Eviscerated means a fish that has only the alimentary organs
removed.
Export means a shipment to a destination outside the customs
territory of the United States for which a Shipper's Export Declaration
(Customs Form 7525) is required. Atlantic HMS destined from one foreign
country to another, which transits the United States and for which a
Shipper's Export Declaration is not required to be filed, is not an
export under this definition.
Exporter means the principal party responsible for effecting export
from the United States as listed on the Shipper's Export Declaration
(Customs Form 7525) or any authorized electronic medium available from
U.S. Customs.
Finlet means one of the small individual fins on a tuna located
behind the second dorsal and anal fins and forward of the tail fin.
First transaction in the United States means the time and place at
which a fish is filleted, cut into steaks, or processed in any way that
physically alters it after being landed in or imported into the United
States.
Fishing record means all records of navigation and operations of a
fishing vessel, as well as all records of catching, harvesting,
transporting, landing, purchasing, or selling a fish.
Fishing vessel means any vessel engaged in fishing, processing, or
transporting fish loaded on the high seas, or any vessel outfitted for
such activities.
Fishing year means--
(1) For Atlantic tunas, billfish, and swordfish--June 1 through May
31 of the following year; and
(2) For sharks--January 1 through December 31.
FL (fork length) means the straight-line measurement of a fish from
the tip of the snout to the fork of the tail. The measurement is not
made along the curve of the body.
Giant BFT means an Atlantic BFT measuring 81 inches (206 cm) CFL or
greater.
Handgear means handline, harpoon, rod and reel or bandit gear.
High-flyer means a flag, radar reflector, or radio beacon
transmitter attached to a longline.
Highly migratory species (HMS) means bluefin, bigeye, yellowfin,
albacore, and skipjack tunas; swordfish; sharks (listed in Appendix A
to this part); white marlin; blue marlin; sailfish; and longbill
spearfish.
ILAP means an initial limited access permit issued pursuant to
Sec. 635.4.
Import means the release of HMS from a nation's Customs' custody
and entry into the territory of that nation. HMS are imported into the
United States upon release from U.S. Customs' custody pursuant to
filing an entry summary document (Customs Form 7501) or filing by any
authorized electronic medium. HMS destined from one foreign country to
another, which transit the United States and for which an entry summary
is not required to be filed, are not an import under this definition.
Importer, for the purpose of HMS imported into the United States,
means the importer of record as declared on U.S. Customs Form 7501 or
by any authorized electronic medium.
Intermediate country means a country that exports to another
country HMS previously imported by that nation. Shipments of HMS
through a country on a through bill of lading or in another manner that
does not enter the shipments into that country as an importation do not
make that country an intermediate country under this definition.
LAP means a limited access permit issued pursuant to Sec. 635.4.
Large coastal shark (LCS) means one of the species, or a part
thereof, listed in paragraph (a) of Table 1 in Appendix A to this part.
Large medium BFT means a BFT measuring at least 73 inches (185 cm)
and less than 81 inches (206 cm) CFL.
Large school BFT means a BFT measuring at least 47 inches (119 cm)
and less than 59 inches (150 cm) CFL.
LJFL (lower jaw-fork length) means the straight-line measurement of
a fish from the tip of the lower jaw to the fork of the caudal fin. The
measurement is not made along the curve of the body.
Management unit means in this part:
(1) For Atlantic tunas, longbill spearfish, blue marlin and white
marlin, means all fish of these species in the Atlantic Ocean;
(2) For sailfish, means all fish of this species in the Atlantic
Ocean west of 30 deg. W. long.;
(3) For North Atlantic swordfish, means all fish of this species in
the Atlantic Ocean north of 5 deg. N. lat.;
(4) For South Atlantic swordfish, means all fish of this species in
the Atlantic Ocean south of 5 deg. N. lat.; and
(5) For sharks, means all fish of these species in the western
north Atlantic Ocean, including the Gulf of Mexico and the Caribbean
Sea.
Mid-Atlantic Bight means the area bounded by straight lines
connecting the mid-Atlantic states' internal waters and extending to
71 deg. W. long. between 35 deg. N. lat. and 43 deg. N. lat.
Non-ridgeback large coastal shark means one of the species, or a
part thereof, listed in paragraph (a)(2) of Table 1 in Appendix A to
this part.
North Atlantic swordfish or North Atlantic swordfish stock means
those swordfish occurring in the Atlantic Ocean north of 5 deg. N. lat.
Northeastern United States closed area means the area bounded by
straight lines connecting the following coordinates in the order
stated: 40 deg.00' N. lat., 74 deg.00' W. long.; 40 deg.00' N. lat.,
68 deg.00' W. long.; 39 deg.00' N. lat., 68 deg.00' W. long.; and
39 deg.00' N. lat., 74 deg.00' W. long.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Pectoral fin means the fin located behind the gill cover on either
side of a fish.
Pelagic shark means one of the species, or a part thereof, listed
in paragraph (c) of Table 1 in Appendix A to this part.
PFCFL (pectoral fin curved fork length) means the length of a
beheaded fish from the dorsal insertion of the pectoral fin to the fork
of the tail measured along the contour of the body in a line that runs
along the top of the pectoral fin and the top of the caudal keel.
Prohibited shark means one of the species, or a part thereof,
listed in paragraph (d) of Table 1 in Appendix A to this part.
Restricted-fishing day (RFD) means a day, beginning at 0000 hours
and ending at 2400 hours local time, during which a person aboard a
vessel for which a General category permit for Atlantic Tunas has been
issued may not fish for, possess, or retain a BFT.
Ridgeback large coastal shark means one of the species, or a part
thereof, listed in paragraph (a)(1) of Table 1 in Appendix A to this
part.
School BFT means a BFT measuring at least 27 inches (69 cm) and
less than 47 inches (119 cm) CFL.
[[Page 29137]]
Shark means one of the oceanic species, or a part thereof, listed
in Tables 1 and 2 in Appendix A to this part.
Small coastal shark (SCS) means one of the species, or a part
thereof, listed in paragraph (b) of Table 1 in Appendix A to this part.
Small medium BFT means a BFT measuring at least 59 inches (150 cm)
and less than 73 inches (185 cm) CFL.
South Atlantic swordfish or south Atlantic swordfish stock means
those swordfish occurring in the Atlantic Ocean south of 5 deg. N. lat.
Swordfish Certificate of Eligibility (COE) means the certificate
that accompanies a shipment of imported swordfish indicating that the
swordfish or swordfish parts are not from the Atlantic Ocean or, if
they are, are derived from a swordfish weighing more than 33 lb (15 kg)
dw.
Tournament means any fishing competition involving Atlantic HMS in
which participants must register or otherwise enter or in which a prize
or award is offered for catching or landing such fish.
Tournament operator means a person or entity responsible for
maintaining records of participants and results used for awarding
tournament points or prizes, regardless of whether fish are retained.
Trip limit means the total allowable take from a single trip as
defined in Sec. 600.10 of this chapter.
Weighout slip means a document provided to the owner or operator of
the vessel by a person who weighs fish or parts thereof that are landed
from a fishing vessel. A document, such as a ``tally sheet,'' ``trip
ticket,'' or ``sales receipt,'' that contains such information is
considered a weighout slip.
Young school BFT means an Atlantic BFT measuring less than 27
inches (69 cm) CFL.
Sec. 635.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705 of this chapter and in paragraphs (b) and (c) of this
section.
(b) In accordance with regulations issued under the Marine Mammal
Protection Act of 1972, as amended, it is unlawful for a commercial
fishing vessel, a vessel owner, or a master or operator of a vessel to
engage in fisheries for HMS in the Atlantic Ocean, unless the vessel
owner or authorized representative has complied with specified
requirements including, but not limited to, registration, exemption
certificates, decals, and reports, as contained in part 229 of this
title.
(c) General provisions on facilitation of enforcement, penalties,
and enforcement policy applicable to all domestic fisheries are set
forth in Secs. 600.730, 600.735, and Sec. 600.740 of this chapter,
respectively.
(d) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing, or exempted educational activity, as specified in Sec. 635.32.
Sec. 635.4 Permits and fees.
Information on permits and permit requirements may be obtained from
the Division Chief or where otherwise stated in this part.
(a) General. (1) Authorized activities. Each permit issued by NMFS
authorizes certain activities, and persons may not conduct these
activities without the appropriate permit, unless otherwise authorized
by NMFS in accordance with this part.
(2) Vessel permit inspection. The owner or operator of a vessel of
the United States must have the appropriate valid permit on board the
vessel to fish for, take, retain, or possess Atlantic tunas, when
engaged in commercial or recreational fishing, and to fish for, take,
retain or possess Atlantic swordfish or sharks when engaged in
commercial fishing. The vessel operator and must make such permit
available for inspection upon request by NMFS or a person authorized by
NMFS. The owner of the vessel is responsible for satisfying all of the
requirements associated with obtaining, maintaining, and making
available for inspection, all valid vessel permits.
(3) Property rights. Limited access vessel permits or any other
permit issued pursuant to this part do not represent either an absolute
right to the resource or any interest that is subject to the takings
provision of the Fifth Amendment of the U.S. Constitution. Rather,
limited access vessel permits represent only a harvesting privilege
that may be revoked, suspended, or amended subject to the requirements
of the Magnuson-Stevens Act or other applicable law.
(4) Dealer permit inspection. A dealer permit issued under this
section, or a copy thereof, must be available at each of the dealer's
places of business. A dealer must present the permit or a copy for
inspection upon the request of a NMFS-authorized officer.
(5) Display upon offloading. Upon transfer of Atlantic HMS, the
owner or operator of the harvesting vessel must present for inspection
the vessel's Atlantic tunas, shark, or swordfish permit to the
receiving dealer. The permit must be presented prior to completing any
applicable landing report specified at Sec. 635.5(a)(1), (a)(2) and
(b)(2)(i).
(6) Sanctions and denials. A permit issued under this section may
be revoked, suspended, or modified, and a permit application may be
denied, in accordance with the procedures governing enforcement-related
permit sanctions and denials found at subpart D of 15 CFR part 904.
(7) Alteration. A vessel or dealer permit that is altered, erased,
mutilated, or otherwise modified is invalid.
(8) Replacement. NMFS may issue a replacement permit upon the
request of the permittee. An application for a replacement permit will
not be considered a new application. An appropriate fee, consistent
with paragraph (b) of this section, may be charged for issuance of the
replacement permit.
(9) Fees. NMFS may charge a fee for each application for a permit
or for each transfer or replacement of a permit. The amount of the fee
is calculated in accordance with the procedures of the NOAA Finance
Handbook, available from NMFS, for determining administrative costs of
each special product or service. The fee may not exceed such costs and
is specified in the instructions provided with each application form.
Each applicant must include the appropriate fee with each application
or request for transfer or replacement. A permit will not be issued to
anyone who fails to pay the fee.
(b) HMS Charter/Headboat Permits. (1) The owner of a charter boat
or headboat used to fish for, take, retain, or possess any Atlantic HMS
must obtain an HMS Charter/Headboat permit.
(2) While persons aboard a vessel that has been issued an HMS
Charter/Headboat permit are fishing for or are in possession of
Atlantic HMS, the operator of the vessel must have a valid Merchant
Marine License or Uninspected Passenger Vessel License, as applicable,
issued by the U.S. Coast Guard pursuant to regulations at 46 CFR part
10. Such Coast Guard license must be carried on board the vessel.
(c) [Reserved.]
(d) Atlantic Tunas vessel permits. (1) The owner of each vessel
used to fish for or take Atlantic tunas or on which Atlantic tunas are
retained or possessed must obtain, in addition to any other required
permits, a permit in one and only one of the following categories:
Angling, Charter/Headboat, General, Harpoon, Longline, Purse Seine, or
Trap.
[[Page 29138]]
(2) Persons aboard a vessel with a valid Atlantic Tunas vessel
permit or a valid HMS Charter/Headboat permit may fish for, take,
retain, or possess Atlantic tunas, but only in compliance with the
quotas, catch limits, size classes, and gear applicable to the permit
category of the vessel from which he or she is fishing. Persons may
sell Atlantic tunas only if the harvesting vessel's valid permit is in
the General, Harpoon, Charter/Headboat, Longline, Purse Seine, or Trap
category of the Atlantic Tunas permit or is a valid HMS Charter/
Headboat permit. Persons may not sell Atlantic tunas caught on board a
vessel issued a permit in the Angling category.
(3) Except for purse seine vessels for which that permit has been
issued under this section, a vessel owner may change the category of
the vessel's permit no more than once each year and only from January 1
through May 15. From May 16 through December 31, the vessel's permit
category may not be changed, regardless of a change in the vessel's
ownership.
(4) A person can obtain an Atlantic Tunas Longline category permit
for a vessel only if the owner of the vessel has both a limited access
permit for shark and a limited access permit for swordfish.
(5) An owner of a vessel with an Atlantic Tunas permit in the Purse
Seine category may transfer the permit to another purse seine vessel
that he or she owns. In either case, the owner must submit a written
request for transfer to NMFS, to an address designated by NMFS, and
attach an application for the new vessel and the existing permit. NMFS
will issue no more than 5 Atlantic Tunas Purse Seine category permits.
(e) Shark vessel LAPs. (1) As of July 1, 1999, the only valid
Federal commercial vessel permits for shark are those that have been
issued under the limited access criteria specified in Sec. 635.16.
(2) The owner of each vessel used to fish for or take Atlantic
sharks or on which Atlantic sharks are retained, possessed with an
intention to sell, or sold must obtain, in addition to any other
required permits, only one of two types of commercial limited access
shark permits: Shark directed limited access permit or shark incidental
limited access permit. See Sec. 635.16 regarding the initial issuance
of these two types of permits. It is a rebuttable presumption that the
owner or operator of a vessel on which sharks are possessed in excess
of the recreational retention limits intends to sell the sharks.
(3) A commercial limited access permit for sharks is not required
if the vessel is recreational fishing and retains no more sharks than
the recreational retention limit, is operating pursuant to the
conditions of a shark EFP, or that fishes exclusively within state
waters.
(4) An owner issued a permit pursuant to this part must agree, as a
condition of such permit, that the vessel's shark fishing, catch, and
gear are subject to the requirements of this part during the period of
validity of the permit, without regard to whether such fishing occurs
in the EEZ, landward of the EEZ, or outside the EEZ, and without regard
to where such shark or gear are possessed, taken, or landed. However,
when a vessel fishes in the waters of a state that has more restrictive
regulations on shark fishing, persons aboard the vessel must abide by
the state's more restrictive regulations.
(f) Swordfish vessel LAPs.
(1) The owner of each vessel used to fish for or take Atlantic
swordfish or on which Atlantic swordfish are retained, possessed with
an intention to sell, or sold must obtain, in addition to any other
required permits, only one of three types of commercial limited access
swordfish permits: swordfish directed limited access permit, swordfish
incidental limited access permit, or swordfish handgear limited access
permit. See Sec. 635.16 regarding the initial issuance of these three
types of permits.
(2) As of July 1, 1999, the only valid commercial Federal vessel
permits for swordfish are those that have been issued under the limited
access criteria specified in Sec. 635.16.
(3) A commercial Federal permit for swordfish is not required if
the vessel is recreational fishing.
(4) Unless the owner has been issued a swordfish handgear permit, a
limited access permit for swordfish is valid only when the vessel has
on board a valid commercial limited access permit for shark and a valid
Atlantic Tunas Longline category permit for such vessel.
(g) Dealer permits--(1) Atlantic tunas. A person that receives,
purchases, trades for, or barters for Atlantic tunas from a fishing
vessel of the United States or who imports or exports bluefin tuna,
regardless of ocean area of origin, must possess a valid dealer permit.
(2) Shark. A person that receives, purchases, trades for, or
barters for Atlantic sharks from a fishing vessel of the United States
must possess a valid dealer permit.
(3) Swordfish. A person that receives, purchases, trades for, or
barters for Atlantic swordfish from a fishing vessel of the United
States or who imports swordfish, regardless of origin, must possess a
valid dealer permit. Importation of swordfish by nonresident
corporations is restricted to those entities authorized under 19 CFR
141.18.
(h) Applications for permits. An owner of a vessel or a dealer must
submit to NMFS, at an address designated by NMFS, a complete
application and required supporting documents at least 30 days before
the date on which the permit is to be made effective. Application forms
and instructions for their completion are available from NMFS.
(1) Atlantic tunas vessel permits. (i) An applicant must provide
all information concerning his or her identification, vessel, gear
used, fishing areas, fisheries participated in, the corporation or
partnership owning the vessel, and income requirements requested by
NMFS and included on the application form.
(ii) An applicant must also submit a copy of the vessel's valid
U.S. Coast Guard documentation or, if not documented, a copy of its
valid state registration and any other information that may be
necessary for the issuance or administration of the permit as requested
by NMFS. The owner must submit such information to an address
designated by NMFS.
(iii) NMFS may require an applicant to provide documentation
supporting the application before a permit is issued or to substantiate
why such permit should not be revoked or otherwise sanctioned under
paragraph (a)(7) of this section.
(2) Limited access permits for swordfish and shark. See Sec. 635.16
for the issuance of ILAPs for shark and swordfish. See paragraph (l) of
this section for transfers of ILAPs and LAPs for shark and swordfish.
See paragraph (m) of this section for renewals of LAPs for shark and
swordfish.
(3) Dealer permits. (i) An applicant for a dealer permit must
provide all the information requested on the application form necessary
to identify the company, its principal place of business, and
mechanisms by which the company can be contacted.
(ii) An applicant must also submit a copy of each state
wholesaler's license held by the dealer and, if a business is owned by
a corporation or partnership, the corporate or partnership documents
requested on the application form.
(iii) An applicant must also submit any other information that may
be necessary for the issuance or administration of the permit, as
requested by NMFS.
[[Page 29139]]
(i) Change in application information. A vessel owner or dealer
must report any change in the information contained in an application
for a permit within 30 days after such change. The report must be
submitted in writing to NMFS, to an address designated by NMFS with the
issuance of each permit. In the case of a vessel permit for Atlantic
tunas or an HMS Charter/Headboat permit, the vessel owner or operator
must report the change by phone or internet to a number or website
designated by NMFS. A new permit will be issued to incorporate the new
information, subject to limited access provisions specified in
paragraph (l)(2) of this section. For certain information changes, NMFS
may require supporting documentation before a new permit will be
issued. If a change in the permit information is not reported within 30
days, the permit is void as of the 31st day after such change.
(j) Permit issuance. (1) NMFS will issue a permit within 30 days of
receipt of a complete and qualifying application. An application is
complete when all requested forms, information, and documentation have
been received, including all reports and fishing or catch information
required to be submitted under this part.
(2) NMFS will notify the applicant of any deficiency in the
application, including failure to provide information or reports
required to be submitted under this part. If the applicant fails to
correct the deficiency within 30 days following the date of
notification, the application will be considered abandoned.
(3) For issuance of ILAPs for shark and swordfish, see Sec. 635.16.
(k) Duration. A permit issued under this section will be valid for
the period specified on it unless it is revoked, suspended, or modified
pursuant to subpart D of 15 CFR part 904, the vessel or dealership is
sold, or any other information previously submitted on the application
changes, as specified in paragraph (i) of this section.
(l) Transfer--(1) General. A permit issued under this section is
not transferable or assignable to another vessel or owner or dealer; it
is valid only for the vessel and owner or dealer to whom it is issued.
If a person acquires a vessel or dealership and wants to conduct
activities for which a permit is required, that person must apply for a
permit in accordance with the provisions of paragraph (h) of this
section; or, if the acquired vessel is permitted in either the shark or
swordfish fishery, in accordance with paragraph (l)(2) of this section.
If the acquired vessel or dealership is currently permitted, an
application must be accompanied by the original permit and by a copy of
a signed bill of sale or equivalent acquisition papers.
(2) Shark and swordfish LAPs. (i) Subject to the restrictions on
upgrading the harvesting capacity of permitted vessels in paragraph
(l)(2)(ii) of this section and the limitations on ownership of
permitted vessels in paragraph (l)(2)(iii) of this section, an owner
may transfer a shark or swordfish ILAP or LAP to another vessel that he
or she owns or to another person. Directed handgear ILAPs and LAPs may
be transferred to another vessel but only for use with handgear and
subject to the upgrading restrictions in paragraph (l)(2)(ii) of this
section. Incidental catch ILAPs and LAPs are not subject to the
requirements specified in paragraphs (l)(2)(ii) and (l)(2)(iii) of this
section.
(ii) An owner may upgrade a vessel with a commercial swordfish or
shark limited access permit, or transfer the limited access permit to
another vessel, and be eligible to retain or renew a limited access
permit only if the upgrade or transfer does not result in an increase
in horsepower of more than 20 percent or an increase of more than 10
percent in length overall, gross registered tonnage, or net tonnage
from the vessel baseline specifications.
(A) The vessel baseline specifications are the respective
specifications (length overall, gross registered tonnage, net tonnage,
horsepower) of the vessel that was issued an initial limited access
permit.
(B) The vessel's horsepower may be increased only once throughout
the validity of each permit, whether through refitting, replacement, or
transfer. Such an increase may not exceed 20 percent of the horsepower
of the vessel's baseline specifications, as applicable.
(C) The vessel's length overall, gross registered tonnage, and net
tonnage may be increased only once throughout the validity of each
permit, whether through refitting, replacement, or transfer. Any
increase in any of these three specifications of vessel size may not
exceed 10 percent of the vessel's baseline specifications, as
applicable. If any of these three specifications is increased, any
increase in the other two must be performed at the same time. This type
of upgrade may be done separately from an engine horsepower upgrade.
(iii) No person may own or control more than 5 percent of the
vessels for which swordfish directed commercial permits have been
issued or more than 5 percent of the vessels for which shark directed
commercial permits have been issued.
(iv) In order to transfer an ILAP or LAP to a replacement vessel,
the owner of the vessel issued the ILAP or LAP pursuant to this part
must request NMFS, at an address designated by NMFS, to transfer the
ILAP or LAP to another vessel, subject to requirements specified in
paragraph (l)(2)(ii) of this section, if applicable. The owner must
return the current valid ILAP or LAP to NMFS with a complete
application for a LAP, as specified in paragraph (h) of this section,
for the replacement vessel. Copies of both vessels' U.S. Coast Guard
documentation or state registration must accompany the application.
(v) For ILAP or LAP transfers to a different person, the transferee
of an ILAP or LAP must request NMFS, at an address designated by NMFS,
to transfer the original ILAP or LAP, subject to requirements specified
in paragraphs (l)(2)(ii) and (l)(2)(iii) of this section, if
applicable. The following must accompany the completed application: The
original ILAP or LAP with signatures of both parties to the transaction
on the back of the permit, the bill of sale of the ILAP or LAP. A
person must include copies of both vessels' U.S. Coast Guard
documentation or state registration for ILAP or LAP transfers involving
vessels.
(vi) For ILAP or LAP transfers with the sale of the permitted
vessel, the transferee of the vessel and ILAP or LAP issued to that
vessel must request NMFS, at an address designated by NMFS, to transfer
the ILAP or LAP, subject to requirements specified in paragraphs
(l)(2)(ii) and (l)(2)(iii) of this section, if applicable. The
following must accompany the completed application: The original ILAP
or LAP with signatures of both parties to the transaction on the back
of the permit, the bill of sale of the ILAP or LAP and the vessel, and
a copy of the vessel's U.S. Coast Guard documentation or state
registration.
(vii) The owner of a vessel issued an ILAP or LAP who sells the
permitted vessel, but retains the ILAP or LAP, must notify NMFS within
30 days after the sale of the change in application information in
accordance with paragraph (i) of this section. If the owner wishes to
transfer the ILAP or LAP to a replacement vessel, he/she must apply and
follow the procedures in paragraph (l)(2)(iv) of this section.
(viii) As specified in paragraph (f)(4) of this section, a directed
or incidental ILAP or LAP for swordfish, a directed or an incidental
catch ILAP or LAP for shark, and an Atlantic tunas Longline category
permit are required to retain swordfish. Accordingly, a LAP for
swordfish obtained by transfer without
[[Page 29140]]
either a directed or incidental catch shark LAP or an Atlantic tunas
Longline category permit will not entitle an owner or operator to use a
vessel to fish in the swordfish fishery.
(ix) As specified in paragraph (d)(4) of this section, a directed
or incidental ILAP or LAP for swordfish, a directed or an incidental
catch ILAP or LAP for shark, and an Atlantic tunas Longline category
permit are required to retain Atlantic tunas. Accordingly, an Atlantic
tunas Longline category permit obtained by transfer without either a
directed or incidental catch swordfish or shark LAP will not entitle an
owner or operator to use a vessel to fish in the Atlantic tunas
fishery.
(m) Renewal--(1) General. Persons must apply annually for a vessel
or dealer permit for Atlantic tunas, sharks and swordfish, and HMS
Charter/Headboats. Persons must apply annually for an Atlantic tunas or
HMS Charter/headboat vessel permit. A renewal application must be
submitted to NMFS, at an address designated by NMFS, at least 30 days
before a permit's expiration to avoid a lapse of permitted status. NMFS
will renew a permit provided that the specific requirements for the
requested permit are met, including those described in Sec. 635.4
(l)(2), all reports required under the Magnuson-Stevens Act have been
submitted, including those described in ' 635.5, and the applicant is
not subject to a permit sanction or denial under paragraph (a)(6) of
this section.
(2) Shark and swordfish LAPs. As of June 1, 2000, the owner of a
vessel of the United States that fishes for, possesses, lands, or sells
shark or swordfish from the management unit, or takes or possesses such
shark or swordfish as incidental catch, must have a LAP issued pursuant
to the requirements in ' 635.4(e) and (f). However, any ILAP that
expires on June 30, 2000, is valid through June 29, 2000. Only valid
ILAP or LAP holders in the preceding year are eligible for renewal of a
LAP. ILAP and LAP holders who have transferred their permits are not
eligible for renewal.
Sec. 635.5 Recordkeeping and reporting.
Information on HMS vessel and dealer reporting requirements may be
obtained from the Division Chief or where otherwise stated in this
part.
(a) Vessels--(1) Logbooks. If an owner of an HMS Charter/Headboat
vessel, an Atlantic Tunas vessel, or a commercial shark or swordfish
vessel, for which a permit has been issued under Sec. 635.4(c), (d),
(e), or (f), is selected for logbook reporting in writing by NMFS, he
or she must maintain and submit a fishing record on a logbook specified
by NMFS. Entries are required regarding the vessel's fishing effort and
the number of fish landed and discarded. Entries on a day's fishing
activities must be entered on the form within 48 hours of completing
that day's activities and, for a 1-day trip, before offloading. The
owner or operator of the vessel must submit the logbook form(s)
postmarked within 7 days of offloading all Atlantic HMS.
(2) Weighout slips. If an owner of a permitted vessel is required
to maintain and submit logbooks under paragraph (a)(1) of this section,
and Atlantic HMS harvested on a trip are sold, the owner or operator
must obtain and submit copies of weighout slips for those fish. Each
weighout slip must show the dealer to whom the fish were transferred,
the date they were transferred, and the carcass weight of each fish for
which individual weights are normally recorded. For fish that are not
individually weighed, a weighout slip must record total weights by
species and market category. A weighout slip for sharks prior to or as
part of a commercial transaction involving shark carcasses or fins must
record the weights of carcasses and any detached fins. The owner or
operator must also submit copies of weighout slips with the logbook
forms required to be submitted under paragraph (a)(1) of this section.
(3) BFT not sold. If a person who catches and lands a large medium
or giant BFT from a vessel issued a permit in any of the commercial
categories for Atlantic tunas does not sell or otherwise transfer the
BFT to a dealer who has a dealer permit for Atlantic tunas, the person
must contact a NMFS enforcement agent, at a number designated by NMFS,
at the time of landing such BFT, provide the information needed for the
reports required under paragraph (b)(2)(i) of this section, and, if
requested, make the tuna available so that a NMFS enforcement agent or
authorized officer may inspect the fish and attach a tag to it.
Alternatively, such reporting requirement may be fulfilled if a dealer
who has a dealer permit for Atlantic tunas reports the BFT as being
landed but not sold on the reports required under paragraph (b)(2)(i)
of this section. All BFT landed but not sold will be applied to the
quota category according to the permit category of the vessel from
which it was landed.
(b) Dealers. Persons who have been issued a dealer permit under
Sec. 635.4 must submit reports to NMFS, to an address designated by
NMFS, and maintain records as follows:
(1) Atlantic HMS. (i) Dealers that receive Atlantic swordfish and
Atlantic sharks from U.S. vessels must report all Atlantic tunas
(including BFT), Atlantic swordfish and Atlantic sharks received from
U.S. vessels on a form available from NMFS. (ii) Dealers must report
all imports of BFT and swordfish on forms available from NMFS.
(iii) Reports of Atlantic swordfish and shark dealers, including
reports of imported swordfish and bluefin tuna, received on the first
through the 15th of each month must be postmarked no later than the
25th of that month. Reports of such fish received on the 16th through
the last day of each month must be postmarked not later than the 10th
of the following month. For swordfish imports, a dealer must attach a
copy of each certificate of eligibility to the report required under
paragraph (b)(1)(i) of this section. If a dealer has not received
Atlantic swordfish or Atlantic sharks from U.S. vessels, during a
reporting period, he or she must submit a report to NMFS, to an address
designated by NMFS so stating, and the report must be postmarked as
specified for the reporting period. A negative report is not necessary
for Atlantic swordfish imports.
(iv) The reporting requirement of paragraph (b)(1)(i) of this
section may be satisfied by a dealer if he or she provides a copy of
each appropriate weighout slip or sales record, provided such weighout
slip or sales record by itself or combined with the form available from
NMFS includes all of the required information and identifies each fish
by species.
(v) The dealer may mail or fax such report to an address designated
by NMFS or may hand-deliver such report to a state or Federal fishery
port agent designated by NMFS. If the dealer hand-delivers the report
to a port agent, a dealer must deliver such report no later than the
prescribed postmark date for the reporting period.
(2) Requirements for BFT--(i) Reports of BFT. Each dealer must
submit a completed landing report on each BFT received, to NMFS, at an
address designated by NMFS, by electronic facsimile (fax) not later
than 24 hours from receipt of the fish. The landing report must be
signed by the permitted vessel's owner or operator immediately upon
transfer of the fish and must indicate the name and permit number of
the vessel that landed the fish. The dealer must inspect the vessel's
permit to verify that the required vessel name and vessel permit number
as listed on the permit are correctly recorded on the landing report.
The dealer must also submit a bi-weekly report on forms
[[Page 29141]]
supplied by NMFS for transfers from U.S. vessels and for imports of
BFT. For BFT received on the first through the 15th of each month, the
dealer must submit the bi-weekly report forms to NMFS postmarked no
later than the 25th of that month. Reports of receipt of such BFT
received on the 16th through the last day of each month must be
postmarked not later than the 10th of the following month.
(ii) Dealer Tags. NMFS will issue numbered dealer tags to each
person issued a dealer permit for Atlantic tunas under Sec. 635.4. A
dealer tag is not transferable and is usable only by the dealer to whom
it is issued. Dealer tags may not be reused once affixed to a tuna or
recorded on a package, container, or report.
(A) Affixing dealer tags. A dealer or a dealer's agent must affix a
dealer tag to each BFT purchased or received immediately upon its
offloading from a vessel. The dealer or dealer's agent must affix the
tag to the tuna between the fifth dorsal finlet and the caudal keel.
(B) Removal of dealer tags. A dealer tag affixed to any BFT under
paragraph (b)(2)(ii)(A) of this section or a BSD tag affixed to an
imported BFT must remain on the tuna until the tuna is cut into
portions. If the BFT or BFT parts subsequently are packaged for
transport for domestic commercial use or for export, the dealer or the
BSD tag number must be written legibly and indelibly on the outside of
any package or container. Such tag number must be recorded on any
document accompanying shipment of BFT for commercial use or export.
(3) Recordkeeping. Dealers must retain at their place of business a
copy of each written report required under paragraphs (b)(1)(i) through
(b)(1)(iii) and paragraph (b)(2)(i) of this section for a period of 2
years from the date on which each report was required to be submitted.
(c) Anglers. The owner of a vessel permitted in the Atlantic tunas
Angling or Atlantic tunas or HMS Charter/Headboat category must report
all BFT landed under the Angling category quota to NMFS through the
automated catch reporting system by calling 1-888-USA-TUNA. Alternative
BFT reporting procedures may be established by NMFS in cooperation with
states and may include such methodologies as telephone, dockside or
mail surveys, mail in or phone-in reports, tagging programs, or
mandatory check-in stations. A census or a statistical sample of
persons fishing under the Angling category may be used for these
alternative reporting programs, and owners of selected vessels will be
notified by NMFS or by the cooperating state agency of the requirements
and procedures for reporting BFT. Each person so notified must comply
with those requirements and procedures. Additionally, NMFS may
determine that BFT landings reporting systems implemented by the
states, if mandatory, at least as restrictive, and effectively
enforced, are sufficient for Angling category quota monitoring. In such
case, NMFS will file with the Office of the Federal Register for
publication notification indicating that compliance with the state
system satisfies the reporting requirement of this paragraph (c).
(d) Tournament operators. A tournament operator must notify NMFS of
the purpose, dates, and location of the tournament conducted from a
port in an Atlantic coastal state, including the U.S. Virgin Islands
and Puerto Rico, at least 4 weeks prior to commencement of the
tournament. NMFS will notify a tournament operator in writing, when his
or her tournament has been selected for reporting. The tournament
operator that is selected must maintain and submit to NMFS a record of
catch and effort on forms available from NMFS. Tournament operators
must submit completed forms to NMFS, at an address designated by NMFS,
postmarked no later than the 7th day after the conclusion of the
tournament and must attach a copy of the tournament rules.
(e) Inspection. Any person authorized to carry out enforcement
activities under the regulations in this part has the authority,
without warrant or other process, to inspect, at any reasonable time,
catch on board a vessel or on the premises of a dealer, logbooks, catch
reports, statistical records, sales receipts, or other records and
reports required by this part to be made, kept, or furnished. An owner
or operator of a fishing vessel that has been issued a permit under
Sec. 635.4 must allow NMFS or an authorized person to inspect and copy
any required reports and the records, in any form, on which the
completed reports are based, wherever they exist. An agent of a person
issued a vessel or dealer permit under this part, or anyone responsible
for offloading, storing packing, or selling regulated HMS for such
permittee, shall be subject to the inspection provisions of this
section.
(f) Additional data and inspection. Additional data on fishing
effort directed at Atlantic HMS or on catch of Atlantic HMS, regardless
of whether retained, may be collected by contractors and statistical
reporting agents, as designees of NMFS, and by authorized officers. A
person issued a permit under Sec. 635.4 is required to provide
requested information about fishing activity, and a person, regardless
of whether issued a permit under Sec. 635.4, who possesses an Atlantic
HMS is required to make such fish or parts thereof available for
inspection by NMFS or its designees upon request.
Sec. 635.6 Vessel and gear identification.
(a) Vessel number. For the purposes of this section, a vessel's
number is the vessel's official number issued by either by the U.S.
Coast Guard or by the appropriate state agency.
(b) Vessel identification. (1) An owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 must display the
vessel's number-
(i) On the port and starboard sides of the deckhouse or hull and on
an appropriate weather deck, so as to be clearly visible from an
enforcement vessel or aircraft.
(ii) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(iii) At least 18 inches (45.7 cm) in height for vessels over 65 ft
(19.8 m) long and at least 10 inches (25.4 cm) in height for all other
vessels.
(2) The owner or operator of a vessel for which a permit has been
issued under Sec. 635.4 must keep the vessel's number clearly legible
and in good repair and ensure that no part of the vessel, its rigging,
its fishing gear, or any other material on board obstructs the view of
the vessel's number from an enforcement vessel or aircraft.
(c) Gear identification. (1) The owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 and that uses a
handline, harpoon, longline, or gillnet, must display the vessel's
name, registration number or Atlantic Tunas permit number on each float
attached to a handline or harpoon and on the terminal floats and high-
flyers (if applicable) on a longline or gillnet used by the vessel. The
vessel's name or number must be at least 1 inch (2.5 cm) in height in
block letters or arabic numerals in a color that contrasts with the
background color of the float or high-flyer.
(2) An unmarked handline, harpoon, longline, or gillnet, is illegal
and may be disposed of in an appropriate manner by NMFS or an
authorized officer.
(3) In addition to gear marking requirements in this paragraph
(c)(1), provisions on gear marking for the southeast U.S. shark gillnet
fishery to implement the Atlantic Large Whale Take Reduction Plan are
set forth in Sec. 229.32(b) of this title.
[[Page 29142]]
Sec. 635.7 At-sea observer coverage.
(a) Applicability. NMFS may select for observer coverage any vessel
that has an Atlantic HMS, tunas, shark or swordfish permit issued under
Sec. 635.4. Vessels permitted in the HMS Charter/Headboat and Atlantic
Tunas Angling and Charter/Headboat categories will be requested to take
observers on a voluntary basis. When selected, vessels issued any other
permit under Sec. 635.4 are required to take observers on a mandatory
basis.
(b) Selection of vessels. NMFS will notify a vessel owner, in
writing, when his or her vessel is selected for observer coverage.
Vessels will be selected to provide information on catch, bycatch and
other fishery data according to the need for representative samples.
(c) Notification of trips. The owner or operator of a vessel that
is selected under paragraph (b) of this section must notify NMFS, at an
address designated by NMFS, before commencing any fishing trip that may
result in the incidental catch or harvest of Atlantic HMS. Notification
procedures and information requirements such as expected gear
deployment, trip duration and fishing area will be specified in a
selection letter sent by NMFS.
(d) Assignment of observers. Once notified of a trip, NMFS will
assign an observer for that trip based on current information needs
relative to the expected catch and bycatch likely to be associated with
the indicated gear deployment, trip duration and fishing area. If an
observer is not assigned for a fishing trip, NMFS will issue a waiver
for that trip to the owner or operator of the selected vessel. If an
observer is assigned for a trip, the operator of the selected vessel
must arrange to embark the observer and shall not fish for or retain
any Atlantic HMS unless the NMFS-assigned observer is aboard. At no
time shall a person aboard a vessel fish for Atlantic sharks with a
gillnet or possess sharks on board a vessel with a gillnet on board
unless a NMFS-approved observer is aboard the vessel.
(e) Requirements. The owner or operator of a vessel on which a
NMFS-approved observer is embarked, regardless of whether required to
carry the observer, must comply with Secs. 600.725 and 600.746 of this
chapter and--
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any
other space used to hold, process, weigh, or store fish.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of fish for that trip.
Subpart B-Limited Access
Sec. 635.16 Limited access permits.
As of July 1, 1999, the only valid commercial vessel permits for
shark and swordfish are those that have been issued under the limited
access criteria specified in this section. If the Federal commercial
shark permit issued to the vessel owner prior to July 1, 1999, was
based on the qualifications of the operator, then a shark limited
access permit will be issued to the qualifying vessel owner, subject to
the provisions in this part, with the requirement that the operator
must be on board the vessel to fish for, take, retain, or possess
Atlantic sharks in state or Federal waters. This requirement expires
May 30, 2000.
(a) Eligibility requirements for ILAPs--(1) Directed permits. To be
eligible for a directed ILAP in the shark or swordfish fishery, a
vessel owner must demonstrate past participation in the respective
fishery by having--
(i) Been the owner of a vessel that was issued a valid permit for
the respective fishery at any time from July 1, 1994, through December
31, 1997.
(ii) Documented shark or swordfish landings from the respective
federally permitted vessel that he or she owned, of at least $5,000 per
year in value or in number per year as follows--
(A) One hundred and two sharks per year for any 2 calendar years,
from January 1, 1991, through December 31, 1997, provided the landings
after July 1, 1993, occurred when the permit was valid, or
(B) Twenty-five swordfish per year for any 2 calendar years, from
January 1, 1987, through December 31, 1997, provided the landings
occurred when the permit was valid.
(iii) Been the owner of a vessel in the respective fishery that--
(A) Had a valid Federal shark permit at any time from January 1,
1998, through December 31, 1998, or
(B) Had a valid Federal swordfish permit at any time from June 1,
1998, through November 30, 1998.
(2) Incidental catch permits. To be eligible for an incidental ILAP
in the shark or swordfish fishery, a vessel owner must demonstrate past
participation in the respective fishery by having--
(i) Been the owner of a vessel that was issued a valid permit for
the respective fishery at any time from July 1, 1994, through December
31, 1997; and
(ii) Documented landings from the respective federally permitted
vessel that he or she owned of at least--
(A) Seven sharks from January 1, 1991, through December 31, 1997,
provided the landings after July 1, 1993, occurred when the permit was
valid; or
(B) Eleven swordfish from January 1, 1987, through December 31,
1997, provided the landings occurred when the permit was valid; and
(iii) Been the owner of a vessel in the respective fishery that--
(A) Had a valid Federal shark permit at any time from January 1,
1998, through December 31, 1998, or
(B) Had a valid Federal swordfish permit at any time from June 1,
1998, through November 30, 1998; and
(iv) Met either the gross income from fishing or the gross sales of
fish requirement specified in paragraph (a)(3)(i) or (ii) of this
section; or
(v) Been the owner of a vessel that had a permit for Atlantic tuna
in the Incidental category at any time from January 1, 1998, through
December 31, 1998; or
(vi) Been the owner of a vessel that is eligible for a directed or
incidental ILAP for swordfish (incidental shark ILAPs only).
(3) Handgear permits. To be eligible for a swordfish handgear
ILAP--
(i) The owner's gross income from commercial fishing (i.e., harvest
and first sale of fish) or from charter/headboat fishing must be more
than 50 percent of his or her earned income, during one of the 3
calendar years preceding the application, or
(ii) The owner's gross sales of fish harvested from his or her
vessel must have been more than $20,000, during one of the 3 calendar
years preceding the application, or
(iii) The owner must provide documentation of having been issued a
swordfish permit for use with harpoon gear, or
(iv) The owner must document his or her historical landings of
swordfish with handgear through logbook records, verifiable sales slips
or receipts from registered dealers or state landings records.
(b) Landings histories. For the purposes of the landings history
criteria in paragraphs (a)(1)(ii) and (a)(2)(ii) of this section:
[[Page 29143]]
(1) The owner of a permitted vessel at the time of a landing
retains credit for the landing unless ownership of the vessel and the
landings history has been transferred and there is a written agreement
signed by both parties to the transfer, or there is other credible
written evidence that the original owner transferred the landings
history to the new owner.
(2) A vessel's landings history may not be divided among owners. A
transfer of credit for landings history must be for the entire record
of landings under the previous owner.
(3) Vessel landings histories may not be consolidated among
vessels. Owners may not pool landings histories to meet the eligibility
requirements.
(c) Alternative eligibility requirements for initial permits. (1)
Persons who acquired ownership of a vessel and its landings history
after December 31, 1997, are exempt from the requirement to have owned
a federally permitted shark or swordfish vessel at any time during the
period July 1, 1994, through December 31, 1997. The acquired landings
history must meet the criteria for a directed or incidental catch
permit specified in paragraph (a)(1)(ii)(A), (a)(1)(ii)(B),
(a)(2)(ii)(A) or paragraph (a)(2)(ii)(B) of this section, and such
persons must have had a valid Federal shark permit at any time from
January 1, 1998, through December 31, 1998, or a valid Federal
swordfish permit at any time from June 1, 1998, through November 30,
1998.
(2) If a person first obtained a shark or swordfish permit in 1997,
the required landings for a directed or incidental catch permit
specified in paragraphs (a)(1)(ii) and (a)(2)(ii) are modified as
follows:
(i) To qualify for a directed shark or swordfish ILAP,
respectively, such persons must document landings from a federally
permitted vessel of at least:
(A) One hundred and two sharks in calendar year 1997, provided such
landings occurred when the permit was valid, or
(B) Twenty-five swordfish in calendar year 1997, provided such
landings occurred when the permit was valid.
(ii) To qualify for an incidental shark or swordfish catch ILAP,
respectively, such persons must document landings from a federally
permitted vessel of at least one shark or swordfish in calendar year
1997, provided such landings occurred when the permit was valid.
(d) Procedures for initial issuance of LAPs--(1) Notification of
status. NMFS will send all written correspondence regarding limited
access permits by certified mail.
(i) Shortly after the final rule is published, the Division Chief
will notify each owner of a vessel who had a valid Federal shark permit
at any time from January 1, 1998, through December 31, 1998, each owner
of a vessel who had a valid Federal swordfish permit at any time from
June 1, 1998, through November 30, 1998, and each owner of a vessel
that had a valid Atlantic tuna Incidental category permit at any time
from January 1, 1998, through December 31, 1998, of the initial
determination of the owner's eligibility for a directed or incidental
catch ILAP. The Division Chief will make the initial determination
based on the criteria in paragraphs (a)(1), (a)(2), and (c)(2) of this
section and on records available to NMFS and mail the appropriate
permit. The Division Chief will not make initial determinations of
eligibility for a vessel permit under the alternative eligibility
requirements specified in paragraph (a)(3) or (c)(1) of this section;
persons that believe they qualify for a LAP under these criteria must
apply to the Division Chief.
(ii) If NMFS determines that all qualifications for a directed or
incidental catch ILAP have been met and that no further action is
required, the appropriate permit for the vessel will be included with
the notification. An ILAP issued by NMFS will be valid through the
expiration date indicated on the permit.
(iii) A person must apply to the Division Chief for the appropriate
permit if--
(A) He or she does not agree with the initial determination;
(B) He or she believes that he or she qualifies for a directed or
incidental catch ILAP but did not receive a letter from the Division
Chief regarding eligibility status; or
(C) He or she believes that he or she qualifies for a swordfish
handgear permit.
(2) Applications for ILAPs. (i) Applicants may obtain application
forms and instructions from the Division Chief. The vessel owner must
submit a completed signed application form and all required supporting
documents.
(ii) An application for a directed or incidental catch ILAP must be
submitted to the Division Chief postmarked no later than September 1,
1999. An application for an initial swordfish handgear permit must be
submitted to the Division Chief postmarked no later than December 1,
1999. Any application received by the Division Chief after these dates
will not be considered.
(iii) Each application must be accompanied by documentation showing
that the criteria for the requested permit have been met. Vessel
landings of sharks in numbers of fish or value through June 30, 1993,
may be documented by verifiable sales slips or receipts from registered
dealers or by state landings records. Vessel landings of sharks in
numbers of fish after July 1, 1993, and all vessel landings of
swordfish in numbers of fish may be documented only by fishing vessel
logbook records that NMFS received before March 2, 1998. Vessel
landings of sharks or swordfish in value may be documented by
verifiable sales slips or receipts from registered dealers or by state
landings records. NMFS will not apply any landing of fish by number of
fish or value that occurred when the vessel did not have a valid
Federal permit.
(iv) Information submitted on an application and documentation in
support of an application is subject to verification by comparison with
Federal, state, and other records and information. Submission of false
information or documentation may result in disqualification from
initial participation in the shark, swordfish, or tunas fisheries and
may result in Federal prosecution.
(v) If the Division Chief receives an incomplete application in a
timely manner, NMFS will notify the applicant of the deficiency. If the
applicant fails to correct the deficiency within 30 days of the date of
receipt of the Division Chief's notification, the application will be
considered abandoned.
(3) Actions on applications. Within 30 days of receipt of a
complete application, the Division Chief will take one of the following
actions:
(i) If the eligibility requirements are met, the Division Chief
will issue the appropriate ILAP which will be valid through the marked
expiration date.
(ii) If, based on the information and documentation supplied with
the application, the Division Chief determines that the applicant does
not meet the eligibility criteria for the requested vessel permit, the
Division Chief will deny the application in a letter to the applicant.
If, based on the documentation supplied, the Division Chief believes
the applicant is qualified for an incidental catch vessel permit
instead of the requested directed ILAP, he or she will notify the
applicant of the denial of the requested directed ILAP but will issue
the incidental catch ILAP.
(4) Appeals. (i) If an application for an ILAP is denied or if an
incidental catch ILAP is issued instead of the requested directed ILAP,
the applicant may appeal
[[Page 29144]]
the denial to the Director. The sole grounds for appeal will be that
the original denial by the Division Chief was based on incorrect or
incomplete information. No other grounds will be considered. An appeal
must be in writing, must be submitted to the Director postmarked no
later than 90 days after receipt of the notice of denial, must specify
the grounds for the appeal, and must include documentation supporting
the grounds for the appeal. Documentation of vessel landings that the
Director may consider in support of an appeal is described in paragraph
(d)(2)(iii) of this section. Photocopies of documentation (e.g.,
permits, logbook reports) will be acceptable for initial submission.
The Director may request originals at a later date, which would be
returned to the appellant.
(ii) Upon receipt of a complete written appeal with supporting
documentation, the Director may issue a provisional ILAP that is valid
for the period during the appeal. This provisional permit will be valid
only for use with the specified gear and will be subject to all
regulations contained in this part.
(iii) The Director will appoint an appeals officer who will review
the appeal documentation and other available records. If the
information and documentation presented in the appeal are insufficient,
inconsistent with vessel ownership, landings history, and other
information available from NMFS' records, or cannot be verified, the
appeals officer may notify the appellant that the information supplied
is not adequate to warrant issuance of the requested permit. The
appellant will have 30 days from the date of receipt of the
notification to submit to the appeals officer corroborating documents
in support of the appeal or to submit a revised appeal. After the
written appeal documentation is complete, the appeals officer will make
findings and a recommendation, which shall be advisory only, to the
Director within 60 days of receipt of the appeal.
(iv) The Director will make a final decision on the appeal and send
the appellant notice of the decision. The Director's decision is the
final administrative action of the Department of Commerce on the
application.
(v) If the appeal is denied, the provisional permit will become
invalid 5 days after receipt of the notice of denial. If the appeal is
accepted, NMFS will issue an appropriate permit.
(e) Transfer of LAPs. For provisions on transfer of limited access
permits, see Sec. 635.4(l).
(f) Renewal of LAPs. For provisions on renewal of limited access
permits, see Sec. 635.4(m).
Subpart C--Management Measures
Sec. 635.20 Size limits.
(a) General. The CFL will be the sole criterion for determining the
size and/or size class of whole (head on) Atlantic tunas.
(b) BFT size classes. The size class of a BFT found with the head
removed shall be determined using pectoral fin curved fork length
(PFCFL) multiplied by a conversion factor of 1.35. The CFL, as
determined by conversion of the PFCFL, will be the sole criterion for
determining the size class of a beheaded BFT. The conversion factor may
be adjusted after consideration of additional scientific information
and fish measurement data, and will be made effective by filing with
the Office of the Federal Register for publication notification of the
adjustment.
(c) BFT, bigeye tuna, and yellowfin tuna. (1) No person shall take,
retain, or possess a BFT, bigeye tuna, or yellowfin tuna in the
Atlantic Ocean that is less than 27 inches (69 cm) CFL;
(2) Applying the conversion factor from PFCFL to CFL for a beheaded
BFT in Sec. 635.20(b) means that no person shall retain or possess a
BFT, with the head removed, that is less than 20 inches (51 cm) PFCFL.
(3) No person shall remove the head of a bigeye tuna or yellowfin
tuna if the remaining portion would be less than 27 inches (69 cm) from
the fork of the tail to the forward edge of the cut.
(d) Billfish. (1) No person shall take, retain or possess a blue
marlin taken from its management unit that is less than 99 inches (251
cm), LJFL.
(2) No person shall take, retain or possess a white marlin taken
from its management unit that is less than 66 inches (168 cm), LJFL.
(3) No person shall take, retain or possess shoreward of the outer
boundary of the EEZ a sailfish taken from its management unit that is
less than 63 inches (160 cm), LJFL.
(e) Sharks. (1) No person shall take, retain, or possess shoreward
of the outer boundary of the EEZ any species classified as a ridgeback
LCS shark, taken from its management unit that is less than 54 inches
(137 cm), fork length, or, if the head and fins have been removed, 30
inches (76 cm) as a straight line from the first dorsal fin ray to the
precaudal pit. If the precaudal pit has been removed, such measurement
will be to the posterior edge of the carcass. For the purposes of
enforcing the minimum size, it is a rebuttable presumption that any
ridgeback shark from which the head and fins have been removed is a
ridgeback LCS shark.
(2) All sharks landed under the recreational retention limits
specified at Sec. 635.22(c), other than Atlantic sharpnose sharks, must
have the head, tail, and fins attached and be at least 54 inches (137
cm), FL. There is no minimum size limit for Atlantic sharpnose sharks.
(f) Swordfish. (1) No person shall take, retain, or possess a north
or south Atlantic swordfish taken from its management unit that is less
than 29 inches (73 cm), CK, or 33 lb (15 kg) dressed weight. A
swordfish that is damaged by shark bites may be retained only if the
remainder of the carcass is at least 29 inches (73 cm) CK, or 33 lb (15
kg) dw. No person shall import into the United States an Atlantic
swordfish weighing less than 33 lb (15 kg) dressed weight, or a part
derived from a swordfish that weighs less than 33 lb (15 kg) dressed
weight.
(2) Except for a swordfish landed in a Pacific state and remaining
in the state of landing, a swordfish, or part thereof, weighing less
than 33 lb (15 kg) dressed weight will be deemed to be an Atlantic
swordfish harvested by a vessel of the United States and to be in
violation of the minimum size requirement of this section unless such
swordfish, or part thereof, is accompanied by a certificate of
eligibility attesting that the swordfish was lawfully imported. Refer
to Sec. 635.46(b) for the requirements related to the certificate of
eligibility.
(3) A swordfish, or part thereof, will be monitored for compliance
with the minimum size requirement of this section from the time it is
landed in, or imported into, the United States up to, and including,
the point of first transaction in the United States.
Sec. 635.21 Gear operation and deployment restrictions.
(a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested
from its management unit that is not retained must be released in a
manner that will ensure maximum probability of survival, but without
removing the fish from the water.
(2) If a billfish is caught by a hook, the fish must be released by
cutting the line near the hook or by using a dehooking device, in
either case without removing the fish from the water.
(b) General. No person shall use any gear to fish for Atlantic HMS
other than those gears specifically authorized in this part. A vessel
using or having on board in the Atlantic Ocean any unauthorized gear
may not have on board an Atlantic HMS.
(c) Pelagic longlines. Pelagic longlines include any longline
placed or
[[Page 29145]]
occurring in water depths greater than 50 fathoms (91 m).
(1) From July 1, 1999, through June 30, 2000, no person may deploy
a pelagic longline that is more than 24 nautical miles (44.5 km) in
length in the Mid-Atlantic Bight.
(2) In the Northeastern United States closed area from June 1
through June 30 each year, no person may deploy a pelagic longline. In
this area, during this time, no person shall retain an Atlantic tuna or
swordfish on board a vessel that has a pelagic longline on board,
unless the mainline, hooks, and floats are secured.
(3) When a marine mammal or sea turtle is hooked or entangled by
pelagic longline gear, the operator of the vessel must immediately
release the animal, retrieve the pelagic longline gear, and move at
least 1 nm (2 km) from the location of the incident before resuming
fishing. Reports of marine mammal entanglements must be submitted to
NMFS consistent with regulations in Sec. 229.6 of this title.
(d) Authorized gear--(1) Atlantic tunas. A person that retains or
possesses an Atlantic bluefin tuna may not have on board or use any
gear other than that authorized for the category for which the Atlantic
tunas or HMS permit has been issued for the harvesting vessel. When
fishing for Atlantic tunas other than BFT, fishing gear authorized for
any permit category may be used, except that purse seine gear may be
used only on board vessels permitted in the Purse Seine category. When
fishing for BFT, a person must use only the gear types authorized for
the Atlantic tunas or HMS permit category of the fishing vessel:
(i) Angling. Rod and reel (including downriggers) and handline.
(ii) Charter/Headboat. Rod and reel (including downriggers), bandit
gear, and handline.
(iii) General. Rod and reel (including downriggers), handline,
harpoon, and bandit gear.
(iv) Harpoon. Harpoon.
(v) Longline. Longline.
(vi) Purse Seine. Purse seine.
(A) Mesh size. A purse seine used in directed fishing for BFT must
have a mesh size equal to or smaller than 4.5 inches (11.4 cm) in the
main body (stretched when wet) and must have at least 24-count thread
throughout the net.
(B) Inspection of purse seine vessels. Persons that own or operate
a purse seine vessel conducting a directed fishery for Atlantic tunas
must have their fishing gear inspected for mesh size by an enforcement
agent of NMFS prior to commencing fishing for the season in any fishery
that may result in the harvest of Atlantic tunas. Such persons must
request such inspection at least 24 hours before commencement of the
first fishing trip of the season. If NMFS does not inspect the vessel
within 24 hours of such notification, the inspection requirement is
waived. In addition, at least 24 hours before commencement of
offloading any BFT after a fishing trip, such persons must request an
inspection of the vessel and catch by notifying NMFS. If, after
notification by the vessel, NMFS does not arrange to inspect the vessel
and catch at offloading, the inspection requirement is waived.
(vii) Trap. Pound net and fish weir.
(2) Billfish. (i) Persons may possess a blue marlin or white marlin
in or take a blue marlin or a white marlin from its management unit
only if it is harvested by rod and reel. Regardless of how taken,
persons may not possess a blue marlin or a white marlin in or take a
blue marlin or a white marlin from its management unit on board a
vessel using or having on board a pelagic longline.
(ii) Persons may possess a sailfish in or take a sailfish shoreward
of the outer boundary of the U.S. EEZ only if it is harvested by rod
and reel. Regardless of how taken, persons may not possess a sailfish
in, or take a sailfish, shoreward of the outer boundary of the U.S. EEZ
on board a vessel using or having on board a pelagic longline.
(3) Sharks. (i) No person may possess a shark shoreward of the
outer boundary of the EEZ if the shark was taken from its management
unit by any gear other than handgear, longline or gillnet.
(ii) No person may fish for sharks with a gillnet with a total
length of 2.5 km or more. No person may have on board a vessel a
gillnet with a total length of 2.5 km or more.
(iii) Provisions on gear deployment for the southeast U.S. shark
drift gillnet fishery to implement the Atlantic Large Whale Take
Reduction Plan are set forth in Sec. 229.32(f) of this title.
(iv) While fishing for Atlantic sharks with a gillnet, the gillnet
must remain attached to the vessel at one end.
(4) Swordfish. (i) No person may possess north Atlantic swordfish
taken from its management unit by any gear other than handgear or
longline, except that such swordfish taken incidentally while fishing
with a squid trawl may be retained, subject to restrictions specified
in Sec. 635.24(b)(2). No person may possess south Atlantic swordfish
taken from its management unit by any gear other than longline.
(ii) An Atlantic swordfish may not be retained or possessed on
board a vessel with a gillnet. A swordfish will be deemed to have been
harvested by gillnet when it is onboard, or offloaded from a vessel
using or having on board a gillnet.
(iii) A person aboard a vessel issued a directed handgear ILAP or
LAP for Atlantic swordfish may not fish for swordfish with any gear
other than handgear. A swordfish will be deemed to have been harvested
by longline when it is on board, or offloaded from a vessel using or
having on board longline gear.
Sec. 635.22 Recreational retention limits.
(a) General. Recreational retention limits apply to a longbill
spearfish taken from or possessed in the Atlantic EEZ, to a shark taken
from or possessed in the Atlantic EEZ, and to a yellowfin tuna taken
from or possessed in the Atlantic Ocean. The operator of a vessel for
which a retention limit applies is responsible for the vessel retention
limit and the cumulative retention limit based on the number of persons
aboard. The retention limits apply to a person who fishes in any
manner, except to a person aboard a vessel who has been issued a
commercial vessel permit under Sec. 635.4 for the appropriate species/
species group. Federal recreational retention limits may not be
combined with any recreational retention limit applicable in state
waters.
(b) Billfish. No longbill spearfish from the management unit may be
possessed shoreward of the outer boundary of the EEZ.
(c) Sharks. One shark from either the large coastal, small coastal
or pelagic group may be retained per vessel per trip, subject to the
size limits described in Sec. 635.20(d), and, in addition, one Atlantic
sharpnose shark may be retained per person per trip. Regardless of the
length of a trip, no more than one Atlantic sharpnose shark per person
may be possessed on board a vessel. No prohibited sharks listed in
Table 1(d) of Appendix A to this part may be retained.
(d) Yellowfin tuna. Three yellowfin tunas per person per day may be
retained. Regardless of the length of a trip, no more than three
yellowfin tuna per person may be possessed on board a vessel.
Sec. 635.23 Retention limits for BFT.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
(a) General category. (1) No person aboard a vessel that has a
General category Atlantic Tunas permit may possess, retain, land, or
sell a BFT in the
[[Page 29146]]
school, large school, or small medium size class.
(2) On an RFD, no person aboard a vessel that has a General
category Atlantic Tunas permit may possess, retain, land, or sell a BFT
in the large medium or giant size class. On days other than RFDs, when
the General category is open, one large medium or giant BFT may be
caught and landed from such vessel per day. NMFS will annually publish
a schedule of RFDs in the Federal Register. An RFD applies only when
the General category fishery is open.
(3) Regardless of the length of a trip, no more than a single day's
retention limit of large medium or giant BFT may be possessed or
retained aboard a vessel that has a General category Atlantic Tunas
permit. On days other than RFDs, when the General category is open, no
person aboard such vessel may continue to fish, and the vessel must
immediately proceed to port once the applicable limit for large medium
or giant BFT is retained.
(4) To provide for maximum utilization of the quota for BFT, NMFS
may increase or decrease the daily retention limit of large medium and
giant BFT over a range from zero (on RFDs) to a maximum of three per
vessel. Such increase or decrease will be based on a review of dealer
reports, daily landing trends, availability of the species on the
fishing grounds, and any other relevant factors. NMFS will adjust the
daily retention limit specified in paragraph (a)(2) of this section by
filing with the Office of the Federal Register for publication
notification of the adjustment. Such adjustment will not be effective
until at least 3 calendar days after notification is filed with the
Office of the Federal Register for publication.
(b) Angling category. BFT may be retained and landed under the
daily limits and quotas applicable to the Angling category by persons
aboard vessels permitted in Atlantic tunas Angling category as follows:
(1) Large medium and giant BFT. (i) No large medium or giant BFT
may be retained, possessed, landed, or sold in the Gulf of Mexico,
except one per vessel per year may be landed if caught incidentally to
fishing for other species.
(ii) One per vessel per year may be retained, possessed, and landed
outside the Gulf of Mexico.
(iii) When a large medium or giant BFT has been caught and retained
under this paragraph (b)(1), no person aboard the vessel may continue
to fish, the vessel must immediately proceed to port, and no such BFT
may be sold or transferred to any person for a commercial purpose.
(2) School, large school, or small medium BFT. One per vessel per
day may be retained, possessed, or landed. Regardless of the length of
a trip, no more than a single day's allowable catch of school, large
school, or small medium BFT may be possessed or retained.
(3) Changes to retention limits. To provide for maximum utilization
of the quota for BFT spread over the longest period of time, NMFS may
increase or decrease the retention limit for any size class BFT or
change a vessel trip limit to an angler limit and vice versa. Such
increase or decrease will be based on a review of daily landing trends,
availability of the species on the fishing grounds, and any other
relevant factors. NMFS will adjust the daily retention limit specified
in paragraph (b)(2) of this section by filing with the Office of the
Federal Register for publication notification of the adjustment. Such
adjustment will not be effective until at least 3 calendar days after
notification is filed with the Office of the Federal Register for
publication.
(c) HMS or Tunas Charter/Headboat. Persons aboard a vessels
permitted in Atlantic HMS or Tunas Charter/Headboat category may retain
and land BFT under the daily limits and quotas applicable to the
Angling category or the General category as follows:
(1) When fishing in the Gulf of Mexico, the restrictions applicable
to the Angling category specified in paragraph (b)(1) of this section
apply.
(2) When fishing other than in the Gulf of Mexico when the fishery
for the General category is closed, the restrictions applicable to the
Angling category specified in paragraphs (b)(1) through (b)(3) of this
section apply.
(3) When fishing other than in the Gulf of Mexico and when the
fishery under the General category has not been closed under
Sec. 635.28, a person aboard a vessel that has an HMS or Atlantic Tunas
Charter/Headboat permit may fish under either the retention limits
applicable to the General category specified in paragraphs (a)(2) and
(a)(3) of this section or the retention limits applicable to the
Angling category specified in paragraphs (b)(2) and (b)(3) of this
section. The size category of the first BFT retained will determine the
fishing category applicable to the vessel that day.
(d) Harpoon category. Persons aboard a vessel permitted in the
Atlantic Tunas Harpoon category may retain, possess, or land multiple
giant BFTs per day. An incidental catch of only one large medium BFT
per vessel per day may be retained, possessed, or landed.
(e) Purse Seine category. Persons aboard a vessel permitted in the
Atlantic Tunas Purse Seine category,
(1) May retain, possess, land, or sell large medium BFT in amounts
not exceeding 15 percent, by weight, of the giant BFT landed on that
trip, provided that the total amount of large medium BFT landed by that
vessel during the fishing year does not exceed 10 percent, by weight,
of the total amount of giant BFT allocated to that vessel for that
fishing year.
(2) May retain, possess or land BFT smaller than the large medium
size class that are taken incidentally when fishing for skipjack tuna
or yellowfin tuna in an amount not exceeding 1 percent, by weight, of
the skipjack tuna and yellowfin tuna landed on that trip. Landings of
BFT smaller than the large medium size class may not be sold and are
counted against the Purse Seine category BFT quota allocated to that
vessel.
(f) Longline category. Persons aboard a vessel permitted in the
Atlantic Tunas Longline category may retain, possess, land, and sell
large medium and giant BFT taken incidentally in fishing for other
species. Limits on such retention/possession/landing/sale are as
follows:
(1) For landings south of 34 deg.00' N. lat., one large medium or
giant BFT per vessel per trip may be landed, provided that, for the
months of January through April, at least 1,500 lb (680 kg) and for the
months of May through December, at least 3,500 lb (1,588 kg), either dw
or round weight, of species other than BFT are legally caught,
retained, and offloaded from the same trip and are recorded on the
dealer weighout slip as sold.
(2) For landings north of 34 deg.00' N. lat., landings per vessel
per trip of large medium and giant BFT may not exceed 2 percent by
weight, either dw or round weight, of all other fish which are legally
caught, retained, and offloaded from the same trip and which are
recorded on the dealer weighout slip as sold.
(g) Trap category. Persons aboard a vessel permitted in the
Atlantic Tunas Trap category may retain, possess, land, and sell each
fishing year only one large medium or giant BFT that is taken
incidentally while fishing for other species with a pound net or fish
weir. No other Atlantic tunas caught in a pound net or fish weir may be
retained.
Sec. 635.24 Commercial retention limits for sharks and swordfish.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
[[Page 29147]]
(a) Sharks. (1) Persons who own or operate a vessel that has been
issued a directed ILAP or LAP for shark may retain, possess or land no
more than 4,000 lb (1,814 kg), dw, of LCS per trip.
(2) Persons who own or operate a vessel that has been issued an
incidental catch ILAP or LAP for sharks may retain, possess or land no
more than 5 LCS and 16 SCS and pelagic sharks, combined, per trip.
(b) Swordfish. (1) Persons aboard a vessel that has been issued an
incidental ILAP or LAP for swordfish may retain, possess, or land no
more than two swordfish per trip in or from the Atlantic Ocean north of
5 deg. N. lat.
(2) Persons aboard a vessel in the squid trawl fishery that has
been issued an incidental ILAP or LAP for swordfish may retain,
possess, or land no more than five swordfish per trip in or from the
Atlantic Ocean north of 5 deg. N. lat. A vessel is considered to be in
the squid trawl fishery when it has no commercial fishing gear other
than trawls on board and when squid constitute not less than 75 percent
by weight of the total fish on board or offloaded from the vessel.
Sec. 635.25 Interim provisions.
(a) Billfish size limits. (1) No person shall take, retain or
possess a blue marlin taken from its management unit that is less than
99 inches (251 cm), LJFL.
(2) No person shall take, retain or possess a white marlin taken
from its management unit that is less than 66 inches (168 cm), LJFL.
(3) No person shall take, retain or possess shoreward of the outer
boundary of the EEZ a sailfish taken from its management unit that is
less than 63 inches (160 cm), LJFL.
(b) Pelagic longline closed area. (1) Pelagic longlines include any
longline placed or occurring in water depths greater than 50 fathoms
(91 m).
(2) The Northeastern United States closed area means the area
bounded by straight lines connecting the following coordinates in the
order stated: 40 deg.00' N. lat., 74 deg.00' W. long.; 40 deg.00' N.
lat., 68 deg.00' W. long.; 39 deg.00' N. lat., 68 deg.00' W. long.; and
39 deg.00' N. lat., 74 deg.00' W. long.
(3) In the Northeastern United States closed area from June 1
through June 30 each year, no person may deploy a pelagic longline. In
this area, during this time, no person shall retain an Atlantic tuna or
swordfish on board a vessel that has a pelagic longline on board,
unless the mainline, hooks, and floats are secured.
(c) Bluefin tuna (BFT) quota specifications. Consistent with ICCAT
recommendations, NMFS will subtract any allowance for dead discards
from the fishing year's (June 1-May 31) total U.S. quota for BFT that
can be caught and allocate the remainder to be retained, possessed, or
landed by persons and vessels subject to U.S. jurisdiction. The total
landing quota will be divided among the General, Angling, Harpoon,
Purse Seine, Longline, and Trap categories. Consistent with these
allocations and other applicable restrictions of this part, BFT may be
taken by persons aboard vessels issued Atlantic Tunas permits or HMS
Charter/Headboat permits. Allocations of the BFT landings quota will be
made according to the following percentages: General - 47.1 percent;
Angling - 19.7 percent, which includes the school BFT held in reserve
as described under paragraph (a)(7)(ii) of this section; Harpoon - 3.9
percent; Purse Seine - 18.6 percent or 250 mt, whichever is less;
Longline - 8.1 percent; and Trap - 0.1 percent. The remaining 2.5
percent of the BFT landings quota will be held in reserve for inseason
adjustments, to compensate for overharvest in any category other than
the Angling category school BFT subquota or for fishery independent
research. In such case that the total annual landings quota when
applied to the percentage allocation for the purse seine category
exceeds 250 mt, the amount over 250 mt shall be allocated to the
reserve. NMFS may apportion a landings quota allocated to any category
to specified fishing periods or to geographic areas. BFT landings
quotas are specified in whole weight.
(1) General category landings quota. Prior to each fishing year
(June 1-May 31), NMFS will set the General category effort control
schedule, including time-period subquotas and restricted-fishing days,
through proposed and final specifications published in the Federal
Register.
(i) Catches from vessels for which General category Atlantic Tunas
permits have been issued and certain catches from vessels for which an
HMS or Atlantic tunas Charter/Headboat permit has been issued are
counted against the General category landings quota. See
Sec. 635.23(c)(3) regarding landings by vessels with an HMS or Atlantic
tunas Charter/Headboat permit that are counted against the General
category landings quota. The total amount of large medium and giant BFT
that may be caught, retained, possessed, landed, or sold under the
General category landings quota is 47.1 percent of the overall U.S. BFT
landings quota, less 10 mt which is set aside for an area comprising
the waters south and west of a straight line originating at a point on
the southern shore of Long Island at 72 deg. 27' W. long (Shinnecock
Inlet) and running SSE 150 deg. true, and north of 38 deg.47' N. lat.
as specified in Sec. 635.27(a)(1)(iii). This 47.1 percent, less the 10
mt set aside as specified in Sec. 635.27(a)(1)(iii), is apportioned as
follows:
(A) June 1 through August 31--60 percent;
(B) September 1 through September 30--30 percent; and
(C) October 1 through May 31--10 percent.
(ii) NMFS will adjust each period's apportionment based on
overharvest or underharvest in the prior period.
(iii) When the coastwide General category fishery has been closed
in any quota period under Sec. 637.28(a)(1), NMFS may publish
notification in the Federal Register to make available all or part of
the 10 mt landings quota set aside for an area comprising the waters
south and west of a straight line originating at a point on the
southern shore of Long Island at 72 deg.27' W. long. (Shinnecock Inlet)
and running SSE 150 true, and north of 38 deg.47' N. lat. The daily
catch limit for the set-aside area will be one large medium or giant
BFT per vessel per day. Upon the effective date of the set-aside
fishery, fishing for, retaining, or landing large medium or giant BFT
is authorized only within the set-aside area. Any portion of the set-
aside amount not harvested prior to the reopening of the coastwide
General category fishery in the subsequent quota period established
under paragraph (a)(1)(i) of this section may be carried over for the
purpose of renewing the set-aside fishery at a later date.
(2) Angling category landings quota. The total amount of BFT that
may be caught, retained, possessed, and landed by anglers aboard
vessels for which an Angling category Atlantic Tunas permit or an HMS
or Atlantic Tunas Charter/Headboat permit has been issued is 19.7
percent of the overall annual U.S. BFT landings quota. No more than 2.3
percent of the annual Angling category landings quota may be large
medium or giant BFT and, over each 4-consecutive-year period, no more
than 8 percent of the overall U.S. BFT landings quota may be school
BFT. The Angling category landings quota includes the amount of school
BFT held in reserve as specified under paragraph (a)(7)(ii) of this
section. The size class subquotas for BFT are further subdivided as
follows:
(i) Under paragraph (a)(7)(ii) of this section, 47.2 percent of the
school BFT Angling category landings quota, minus the school BFT quota
held in reserve, may be caught, retained, possessed, or landed south of
38 deg. 47' N. lat.
[[Page 29148]]
(ii) An amount equal to 47.2 percent of the large school/small
medium BFT Angling category quota, may be caught, retained, possessed,
or landed south of 38 deg. 47' N. lat.
(iii) An amount equal to 66.7 percent of the large medium and giant
BFT Angling category quota may be caught, retained, possessed, or
landed south of 38 deg. 47' N. lat.
(3) Longline category quota. The total amount of large medium and
giant BFT that may be caught incidentally and retained, possessed, or
landed by vessels for which Longline category Atlantic tunas permits
have been issued is 8.1 percent of the overall U.S. BFT quota. No more
than 78.9 percent of the Longline category quota may be caught,
retained, possessed, or landed in the area south of 34 deg.00' N. lat.
(4) Purse Seine category quota. (i) The total amount of large
medium and giant BFT that may be caught, retained, possessed, or landed
by vessels for which Purse Seine category Atlantic Tunas permits have
been issued is 18.6 percent of the overall U.S. BFT landings quota, or
250 mt, whichever is less. The purse seine fishery under this quota
commences on August 15 each year.
(ii) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued must apply in writing to NMFS at an
address designated by NMFS, for an allocation of BFT from the Purse
Seine category quota. The application must be postmarked no later than
April 15 for an allocation of the quota that becomes available on
August 15.
(iii) On or about May 1, NMFS will make equal allocations of the
available size classes of BFT among purse seine vessel permit holders
so requesting. Such allocations are freely transferable, in whole or in
part, among vessels that have Purse Seine category Atlantic Tunas
permits. An owner of a purse seine vessel intending to fish for more
than one allocation in any fishing season must provide written notice
of such intent to NMFS at an address designated by NMFS, 15 days before
commencing fishing. An owner of a purse seine vessel who transfers his
or her allocation to another purse seine vessel may not use his or her
vessel in any fishery in which BFT might be caught for the remainder of
the fishing year after his or her allocation is transferred.
(iv) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued may apply to NMFS to permanently
consolidate Purse Seine category vessel permits issued under
Sec. 635.4. Upon written approval of consolidation by NMFS, the Purse
Seine Category Atlantic Tunas Permit of a transferring vessel will be
canceled, and the receiving owner may apply for allocations of BFT
commensurate with the number of consolidated permits. An owner of a
purse seine vessel whose permit is canceled through consolidation may
not use his or her vessel in any purse seine fishery in which BFT might
be caught.
(5) Harpoon category quota. The total amount of large medium and
giant BFT that may be caught, retained, possessed, landed, or sold by
vessels for which Harpoon category Atlantic Tunas permits have been
issued is 3.9 percent of the overall U.S. BFT quota.
(6) Trap category quota. The total amount of large medium and giant
BFT that may be caught, retained, possessed, or landed by vessels for
which Trap category Atlantic Tunas permits have been issued is 0.1
percent of the overall U.S. BFT quota.
(7) Reserve. (i) The total amount of BFT that is held in reserve
for inseason adjustments and fishery-independent research using quotas
or subquotas other than the Angling category school BFT subquota, is
2.5 percent of the overall U.S. BFT quota. Consistent with paragraph
(a)(7)(iii) of this section, NMFS may allocate any portion of this
reserve for inseason adjustments to any category quota in the fishery,
other than the Angling category school BFT subquota.
(ii) The total amount of school BFT that is held in reserve for
inseason adjustments and fishery independent research is 18.5 percent
of the total school BFT quota for the Angling category as described
under paragraph (a)(2) of this section, which is in addition to the
amounts specified in paragraph (a)(7)(i) of this section. Consistent
with paragraph (a)(7)(iii) of this section, NMFS may allocate any
portion of the school BFT held in reserve for inseason adjustments to
the Angling category.
(iii) NMFS will file with the Office of the Federal Register for
publication notification of any inseason adjustment. Before making any
such adjustment, NMFS will consider the following factors:
(A) The usefulness of information obtained from catches in the
particular category for biological sampling and monitoring of the
status of the stock.
(B) The catches of the particular category quota to date and the
likelihood of closure of that segment of the fishery if no allocation
is made.
(C) The projected ability of the vessels fishing under the
particular category quota to harvest the additional amount of BFT
before the end of the fishing year.
(D) The estimated amounts by which quotas for other gear categories
of the fishery might be exceeded.
(E) Effects of the transfer on BFT rebuilding and overfishing.
(F) Effects of the transfer on accomplishing the objectives of the
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks.
(d) Prohibitions. In addition to the prohibitions specified in
Sec. 600.725 of this chapter, it is unlawful for any person or vessel
subject to the jurisdiction of the United States to violate any
provision of this section, ATCA, the Magnuson-Stevens Act, or any other
rules promulgated under ATCA or the Magnuson-Stevens Act.
Sec. 635.26 Catch and release.
(a) BFT. (1) Notwithstanding the other provisions of this part, an
angler may fish for BFT under a tag-and-release program, provided the
angler tags all BFT so caught, regardless of whether previously tagged,
with conventional tags issued or approved by NMFS, returns such fish to
the sea immediately after tagging with a minimum of injury, and reports
the tagging and, if the BFT was previously tagged, the information on
the previous tag. If NMFS-issued or NMFS-approved conventional tags are
not on board a vessel, all anglers aboard that vessel are ineligible to
fish under the tag-and-release program.
(2) Persons may obtain NMFS-issued conventional tags, reporting
cards, and detailed instructions for their use from the NMFS
Cooperative Tagging Center. Persons may use a conventional tag obtained
from a source other than NMFS to tag BFT, provided the use of such tags
is registered each year with the Cooperative Tagging Center and the
NMFS program manager has approved the use of a conventional tag from
that source. An angler using an alternative source of tags wishing to
tag BFT may contact the NMFS Cooperative Tagging Center at the
Southeast Fishery Science Center.
(3) An angler registering for the HMS tagging program is required
to provide his or her name, address, phone number and, if applicable,
the identity of the alternate source of tags.
(b) Billfish. NMFS is encouraging further catch and release of
Atlantic billfish by establishing a recreational catch-and-release
fishery management program, consistent with the guidance of
Sec. 600.350(c).
(c) Sharks. Notwithstanding the other provisions of this part, a
person may fish for white sharks (Carcharodon carcharias) with rod and
reel, provided
[[Page 29149]]
the person releases such fish to the sea immediately with a minimum of
injury, and that such fish may not be removed from the water.
Sec. 635.27 Quotas.
(a) BFT. Consistent with ICCAT recommendations, NMFS will subtract
any allowance for dead discards from the fishing year's total U.S.
quota for BFT that can be caught and allocate the remainder to be
retained, possessed, or landed by persons and vessels subject to U.S.
jurisdiction. The total landing quota will be divided among the
General, Angling, Harpoon, Purse Seine, Longline, and Trap categories.
Consistent with these allocations and other applicable restrictions of
this part, BFT may be taken by persons aboard vessels issued Atlantic
Tunas permits or HMS Charter/Headboat permits. Allocations of the BFT
landings quota will be made according to the following percentages:
General - 47.1 percent; Angling - 19.7 percent, which includes the
school BFT held in reserve as described under paragraph (a)(7)(ii) of
this section; Harpoon - 3.9 percent; Purse Seine - 18.6 percent or 250
mt, whichever is less; Longline - 8.1 percent; and Trap - 0.1 percent.
The remaining 2.5 percent of the BFT landings quota will be held in
reserve for inseason adjustments, to compensate for overharvest in any
category other than the Angling category school BFT subquota or for
fishery independent research. In such case that the total annual
landings quota when applied to the percentage allocation for the purse
seine category exceeds 250 mt, the amount over 250 mt shall be
allocated to the reserve. NMFS may apportion a landings quota allocated
to any category to specified fishing periods or to geographic areas.
BFT landings quotas are specified in whole weight.
(1) General category landings quota. Prior to each fishing year,
NMFS will set the General category effort control schedule, including
time-period subquotas and restricted-fishing days, through proposed and
final specifications published in the Federal Register.
(i) Catches from vessels for which General category Atlantic Tunas
permits have been issued and certain catches from vessels for which an
HMS or Atlantic tunas Charter/Headboat permit has been issued are
counted against the General category landings quota. See
Sec. 635.23(c)(3) regarding landings by vessels with an HMS or Atlantic
tunas Charter/Headboat permit that are counted against the General
category landings quota. The total amount of large medium and giant BFT
that may be caught, retained, possessed, landed, or sold under the
General category landings quota is 47.1 percent of the overall U.S. BFT
landings quota, less 10 mt which is set aside for an area comprising
the waters south and west of a straight line originating at a point on
the southern shore of Long Island at 72 deg. 27' W. long (Shinnecock
Inlet) and running SSE 150 deg. true, and north of 38 deg.47' N. lat.
as specified in Sec. 635.27(a)(1)(iii). This 47.1 percent, less the 10
mt set aside as specified in Sec. 635.27(a)(1)(iii), is apportioned as
follows:
(A) June 1 through August 31--60 percent;
(B) September 1 through September 30--30 percent; and
(C) October 1 through May 31--10 percent.
(ii) NMFS will adjust each period's apportionment based on
overharvest or underharvest in the prior period.
(iii) When the coastwide General category fishery has been closed
in any quota period under Sec. 637.28(a)(1), NMFS may publish
notification in the Federal Register to make available all or part of
the 10 mt landings quota set aside for an area comprising the waters
south and west of a straight line originating at a point on the
southern shore of Long Island at 72 deg.27' W. long. (Shinnecock Inlet)
and running SSE 150 true, and north of 38 deg.47' N. lat. The daily
catch limit for the set-aside area will be one large medium or giant
BFT per vessel per day. Upon the effective date of the set-aside
fishery, fishing for, retaining, or landing large medium or giant BFT
is authorized only within the set-aside area. Any portion of the set-
aside amount not harvested prior to the reopening of the coastwide
General category fishery in the subsequent quota period established
under paragraph (a)(1)(i) of this section may be carried over for the
purpose of renewing the set-aside fishery at a later date.
(2) Angling category landings quota. The total amount of BFT that
may be caught, retained, possessed, and landed by anglers aboard
vessels for which an Angling category Atlantic Tunas permit or an HMS
or Atlantic Tunas Charter/Headboat permit has been issued is 19.7
percent of the overall annual U.S. BFT landings quota. No more than 2.3
percent of the annual Angling category landings quota may be large
medium or giant BFT and, over each 4-consecutive-year period, no more
than 8 percent of the overall U.S. BFT landings quota may be school
BFT. The Angling category landings quota includes the amount of school
BFT held in reserve as specified under paragraph (a)(7)(ii) of this
section. The size class subquotas for BFT are further subdivided as
follows:
(i) Under paragraph (a)(7)(ii) of this section, 47.2 percent of the
school BFT Angling category landings quota, minus the school BFT quota
held in reserve, may be caught, retained, possessed, or landed south of
38 deg. 47' N. lat.
(ii) an amount equal to 47.2 percent of the large school/small
medium BFT Angling category quota, may be caught, retained, possessed,
or landed south of 38 deg. 47' N. lat.
(iii) an amount equal to 66.7 percent of the large medium and giant
BFT Angling category quota may be caught, retained, possessed, or
landed south of 38 deg. 47' N. lat.
(3) Longline category quota. The total amount of large medium and
giant BFT that may be caught incidentally and retained, possessed, or
landed by vessels for which Longline category Atlantic tunas permits
have been issued is 8.1 percent of the overall U.S. BFT quota. No more
than 78.9 percent of the Longline category quota may be caught,
retained, possessed, or landed in the area south of 34 deg.00' N. lat.
(4) Purse Seine category quota. (i) The total amount of large
medium and giant BFT that may be caught, retained, possessed, or landed
by vessels for which Purse Seine category Atlantic Tunas permits have
been issued is 18.6 percent of the overall U.S. BFT landings quota, or
250 mt, whichever is less. The purse seine fishery under this quota
commences on August 15 each year.
(ii) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued must apply in writing to NMFS at an
address designated by NMFS, for an allocation of BFT from the Purse
Seine category quota. The application must be postmarked no later than
April 15 for an allocation of the quota that becomes available on
August 15.
(iii) On or about May 1, NMFS will make equal allocations of the
available size classes of BFT among purse seine vessel permit holders
so requesting. Such allocations are freely transferable, in whole or in
part, among vessels that have Purse Seine category Atlantic Tunas
permits. An owner of a purse seine vessel intending to fish for more
than one allocation in any fishing season must provide written notice
of such intent to NMFS at an address designated by NMFS, 15 days before
commencing fishing. An owner of a purse seine vessel who transfers his
or her allocation to another purse seine vessel may not use his or her
vessel in any fishery in which BFT might be caught for the remainder of
the fishing
[[Page 29150]]
year after his or her allocation is transferred.
(iv) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued may apply to NMFS to permanently
consolidate Purse Seine category vessel permits issued under
Sec. 635.4. Upon written approval of consolidation by NMFS, the Purse
Seine Category Atlantic Tunas Permit of a transferring vessel will be
canceled, and the receiving owner may apply for allocations of BFT
commensurate with the number of consolidated permits. An owner of a
purse seine vessel whose permit is canceled through consolidation may
not use his or her vessel in any purse seine fishery in which BFT might
be caught.
(5) Harpoon category quota. The total amount of large medium and
giant BFT that may be caught, retained, possessed, landed, or sold by
vessels for which Harpoon category Atlantic Tunas permits have been
issued is 3.9 percent of the overall U.S. BFT quota.
(6) Trap category quota. The total amount of large medium and giant
BFT that may be caught, retained, possessed, or landed by vessels for
which Trap category Atlantic Tunas permits have been issued is 0.1
percent of the overall U.S. BFT quota.
(7) Reserve. (i) The total amount of BFT that is held in reserve
for inseason adjustments and fishery-independent research using quotas
or subquotas other than the Angling category school BFT subquota, is
2.5 percent of the overall U.S. BFT quota. Consistent with paragraph
(a)(7)(iii) of this section, NMFS may allocate any portion of this
reserve for inseason adjustments to any category quota in the fishery,
other than the Angling category school BFT subquota.
(ii) The total amount of school BFT that is held in reserve for
inseason adjustments and fishery independent research is 18.5 percent
of the total school BFT quota for the Angling category as described
under paragraph (a)(2) of this section, which is in addition to the
amounts specified in paragraph (a)(7)(i) of this section. Consistent
with paragraph (a)(7)(iii) of this section, NMFS may allocate any
portion of the school BFT held in reserve for inseason adjustments to
the Angling category.
(iii) NMFS will file with the Office of the Federal Register for
publication notification of any inseason adjustment. Before making any
such adjustment, NMFS will consider the following factors:
(A) The usefulness of information obtained from catches in the
particular category for biological sampling and monitoring of the
status of the stock.
(B) The catches of the particular category quota to date and the
likelihood of closure of that segment of the fishery if no allocation
is made.
(C) The projected ability of the vessels fishing under the
particular category quota to harvest the additional amount of BFT
before the end of the fishing year.
(D) The estimated amounts by which quotas for other gear categories
of the fishery might be exceeded.
(E) Effects of the transfer on BFT rebuilding and overfishing.
(F) Effects of the transfer on accomplishing the objectives of the
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks.
(8) Inseason adjustments. Within a fishing year, NMFS may transfer
quotas among categories or, as appropriate, subcategories. If it is
determined, based on the factors in paragraphs (a)(7)(iii)(A) through
(a)(7)(iii)(F) of this section and the probability of exceeding the
total quota, that vessels fishing under any category or subcategory
quota are not likely to take that quota, NMFS may transfer inseason any
portion of the remaining quota of that fishing category to any other
fishing category or to the reserve as specified in paragraphs (a)(7)(i)
and (a)(7)(ii) of this section. NMFS will file with the Office of the
Federal Register for publication notification of any inseason
adjustment.
(9) Annual adjustments. (i) If NMFS determines, based on landings
statistics and other available information, that a BFT quota in any
category or, as appropriate, subcategory has been exceeded or has not
been reached, NMFS shall subtract the overharvest from, or add the
underharvest to, that quota category for the following fishing year,
provided that the total of the adjusted category quotas and the reserve
is consistent with a recommendation of ICCAT regarding country quotas,
the take of school BFT, and the allowance for dead discards.
(ii) NMFS may allocate any quota remaining in the reserve at the
end of a fishing year to account for overharvest in any fishing
category, provided such allocation is consistent with the criteria
specified in paragraph (a)(7)(iii) of this section.
(iii) Regardless of the estimated landings in any year, NMFS may
adjust the annual school BFT quota to ensure that the average take of
school BFT over each 4-consecutive-year period beginning in the 1999
fishing year does not exceed 8 percent by weight of the total U.S. BFT
quota for that period.
(iv) If NMFS determines that the annual dead discard allowance has
been exceeded in one fishing year, NMFS shall subtract the amount in
excess of the allowance from the amount of BFT that can be landed in
the subsequent fishing year by those categories accounting for the dead
discards. If NMFS determines that the annual dead discard allowance has
not been reached, NMFS may add one-half of the remainder to the amount
of BFT that can be landed in the subsequent fishing year. Such amount
may be allocated to individual fishing categories or to the Reserve.
(v) NMFS will file with the Office of the Federal Register for
publication notification of the amount subtracted or added and the
basis for the quota reductions or increases made pursuant to paragraphs
(a)(9)(i) through (a)(9)(iv) of this section.
(b) Sharks--(1) Commercial quotas. The commercial quotas for shark
specified in paragraphs (b)(1)(i) through (b)(1)(iv) of this section
apply to sharks harvested from the management unit, regardless of where
harvested. Commercial quotas are specified for each of the management
groups of large coastal sharks, small coastal sharks, and pelagic
sharks.
(i) Large coastal sharks. The annual commercial quota for large
coastal sharks is 816 mt dw, apportioned between ridgeback and non-
ridgeback shark and divided between two equal semiannual fishing
seasons, January 1 through June 30, and July 1 through December 31. The
length of each season will be determined based on the projected catch
rates, available quota, and other relevant factors. NMFS will file with
the Office of the Federal Register for publication notification of each
season's length at least 30 days prior to the beginning of the season.
The quotas for each fishing season (unless otherwise specified in the
Federal Register as provided in paragraph (b)(1)(iv) of this section
are as follows:
(A) Ridgeback shark--310 mt dw.
(B) Non-ridgeback shark-98 mt dw.
(ii) Small coastal sharks. The annual commercial quota for small
coastal shark is 359 mt dw, (unless otherwise specified in the Federal
Register as provided in paragraph (b)(1)(iv) of this section) divided
between two equal semiannual seasons, January 1 through June 30, and
July 1 through December 31. The quota for each semiannual season is
179.5 mt, dw.
(iii) Pelagic sharks. The annual commercial quotas for pelagic
sharks are 92 mt dw for porbeagle sharks and 488 mt dw for all other
pelagic sharks (unless otherwise specified in the
[[Page 29151]]
Federal Register as provided in paragraph (b)(1)(iv) of this section).
These quotas are divided between two equal semiannual periods, January
1 through June 30, and July 1 through December 31. The quotas for each
semiannual period are as follows:
(A) Porbeagle sharks--46 mt dw.
(B) Pelagic sharks, other than porbeagle sharks--244 mt dw.
(C) Blue sharks--136.5 mt dw.
(iv) Annual adjustments. (A) NMFS will adjust the next year's
semiannual quotas for large coastal, small coastal, and pelagic sharks
to reflect actual landings during any semiannual period. For example, a
commercial quota underage or overage in the season that begins January
1 will result in an equivalent increase or decrease in the following
year's quota for the season that begins January 1, provided that the
annual quotas are not exceeded. NMFS will file with the Office of the
Federal Register for publication notification of any adjustment at
least 30 days prior to the start of the next fishing season.
(B) NMFS will reduce the annual commercial quota for pelagic sharks
by the amount that the blue shark quota is exceeded at least 30 days
prior to the start of the next fishing season.
(C) Sharks discarded dead are counted against the applicable
directed fishery quota. Sharks taken and landed from state waters are
counted against the applicable directed fishery quota.
(2) Public display quota. The annual quota for persons who collect
sharks from any of the management groups under an EFP is 60 mt whole
weight (43 mt dw). All sharks collected under the authority of an EFP,
subject to restrictions at Sec. 635.32, will be counted against this
quota.
(c) Swordfish. (1) Consistent with ICCAT recommendations, the
fishing year's total amount of swordfish that may be caught, retained,
possessed, or landed by persons and vessels subject to U.S.
jurisdiction is divided into quotas for the North Atlantic swordfish
stock and the South Atlantic swordfish stock. The quota for the North
Atlantic swordfish stock is further divided into semi-annual directed
fishery quotas and an incidental catch quota for fishermen targeting
other species. A swordfish from the North Atlantic swordfish stock
caught prior to the directed fishery closure by a vessel for which a
directed fishery permit or a handgear permit for swordfish has been
issued is counted against the directed fishery quota. A swordfish from
the North Atlantic swordfish stock landed by a vessel for which an
incidental catch permit for swordfish has been issued, landed
consequent to recreational fishing, or caught after the effective date
of a closure of the directed fishery from a vessel for which a directed
fishery permit or a handgear permit for swordfish has been issued is
counted against the incidental catch quota. The entire quota for the
South Atlantic swordfish stock is reserved for longline vessels for
which a directed fishery permit for swordfish has been issued;
retention of swordfish caught incidental to other fishing activities is
prohibited in the Atlantic Ocean south of 5 deg. N. lat.
(i) North Atlantic swordfish stock. (A) The annual directed fishery
quota for the North Atlantic swordfish stock is 2033.2 mt dw, divided
into two equal semiannual quotas of 1016.6 mt dw, one for June 1
through November 30, and the other for December 1 through May 31 of the
following year.
(B) The annual incidental catch quota for the North Atlantic
swordfish stock is 300 mt dw.
(ii) South Atlantic swordfish stock. The annual directed fishery
quota for the South Atlantic swordfish stock is 289 mt dw. Incidental
harvest of swordfish is prohibited in the Atlantic Ocean south of
5 deg. N. lat.
(2) Inseason adjustments. (i) NMFS may adjust the December 1
through May 31 semiannual directed fishery quota to reflect actual
catches during the June 1 through November 30 semiannual period,
provided that the fishing year's directed fishery quota is not
exceeded.
(ii) If NMFS determines that the annual incidental catch quota will
not be taken before the end of the fishing year, the excess quota may
be allocated to the directed fishery quota.
(iii) If NMFS determines that it is necessary to close the directed
swordfish fishery prior to the scheduled end of a semi-annual fishing
season, any estimated overharvest or underharvest of the directed
fishery quota for that semi-annual season will be used to adjust the
annual incidental catch quota accordingly.
(iv) NMFS will file with the Office of the Federal Register for
publication notification of any inseason swordfish quota adjustment and
its apportionment made under this paragraph (c)(2) of this section.
(3) Annual adjustments. (i) Except for the carryover provisions of
paragraph (c)(3)(ii) of this section, NMFS will file with the Office of
the Federal Register for publication notification of any adjustment to
the annual quota necessary to meet the objectives of the Fishery
Management Plan for Atlantic Tuna, Swordfish and Sharks. NMFS will
provide at least 30 days opportunity for public comment.
(ii) If consistent with applicable ICCAT recommendations, total
landings above or below the specific North Atlantic or South Atlantic
swordfish annual quota shall be subtracted from, or added to, the
following year's quota for that area. Any adjustments to the 12-month
directed fishery quota will be apportioned equally between the two
semiannual fishing seasons. NMFS will file with the Office of the
Federal Register for publication notification of any adjustment or
apportionment made under this paragraph (c)(3)(ii).
Sec. 635.28 Closures.
(a) BFT. (1) When a BFT quota, other than the Purse Seine category
quota specified in Sec. 635.27(a)(4), is reached, or is projected to be
reached, NMFS will file with the Office of the Federal Register for
publication notification of closure. On and after the effective date
and time of such notification, for the remainder of the fishing year or
for a specified period as indicated in the notice, fishing for,
retaining, possessing, or landing BFT under that quota is prohibited
until the opening of the subsequent quota period or until such date as
specified in the notice.
(2) From August 15 through December 31, the owner or operator of a
vessel that has been allocated a portion of the Purse Seine category
quota under Sec. 635.27(a)(4) may fish for BFT. Such vessel may be used
to fish for yellowfin, bigeye, albacore, or skipjack tuna at any time,
however, landings of BFT taken incidental to fisheries targeting other
Atlantic tunas or in any fishery in which BFT might be caught will be
deducted from the individual vessel's quota for the following BFT
fishing season (i.e., August 15 through December 31). Upon reaching its
individual vessel allocation of BFT, the vessel may not participate in
a directed purse seine fishery for Atlantic tunas or in any fishery in
which BFT might be caught for the remainder of the fishing year.
(3) If NMFS determines that variations in seasonal distribution,
abundance, or migration patterns of BFT, or the catch rate in one area,
precludes anglers in another area from a reasonable opportunity to
harvest a portion of the Angling category quota, NMFS may close all or
part of the fishery under that category and may reopen it at a later
date if NMFS determines that BFT have migrated into the other area. In
determining the need for any such interim closure or area closure, NMFS
will consider:
(i) The usefulness of information obtained from catches of a
particular geographic area of the fishery for
[[Page 29152]]
biological sampling and for monitoring the status of the stock;
(ii) The current year catches from the particular geographic area
relative to the catches recorded for that area during the preceding 4
years;
(iii) The catches from the particular geographic area to date
relative to the entire category and the likelihood of closure of that
entire category of the fishery if no interim closure or area closure is
effected; and
(iv) The projected ability of the entire category to harvest the
remaining amount of BFT before the anticipated end of the fishing
season.
(b) Sharks. (1) The commercial fishery for large coastal sharks
will remain open for fixed semiannual fishing seasons, as specified at
Sec. 635.27(b)(1)(i). From the effective date and time of a season
closure until additional quota becomes available, the fishery for large
coastal sharks is closed, and sharks of that species group may not be
retained on board a fishing vessel issued a commercial permit pursuant
to Sec. 635.4.
(2) When a semiannual quota for small coastal sharks or pelagic
sharks specified in Sec. 635.27(b)(1)(ii) and (b)(1)(iii) is reached,
or is projected to be reached, NMFS will file with the Office of the
Federal Register for publication a notice of closure at least 14 days
before the effective date. From the effective date and time of the
closure until additional quota becomes available, the fishery for the
appropriate shark species group is closed, and sharks of that species
group may not be retained on board a fishing vessel issued a commercial
permit pursuant to Sec. 635.4.
(3) When the fishery for a shark species group is closed, a fishing
vessel issued a commercial permit pursuant to Sec. 635.4 may not
possess or sell a shark of that species group, and a permitted shark
dealer may not purchase from a fishing vessel a shark of that species
group, whether or not the fishing vessel has a commercial permit for
shark, except that a permitted shark dealer or processor may possess
sharks that were harvested, off-loaded, and sold, traded, or bartered,
prior to the effective date of the closure and were held in storage.
(c) Swordfish--(1) Directed fishery closure. When the annual or
semiannual directed fishery quota specified in Sec. 635.27(c)(1)(i) or
(ii) is reached, or is projected to be reached, NMFS will file with the
Office of the Federal Register for publication notification of closure
at least 14 days before the effective date. From the effective date and
time of the closure until additional directed fishery quota becomes
available, the directed fishery for the appropriate stock is closed and
the following catch limits apply:
(i) When the directed fishery for the North Atlantic swordfish
stock is closed,
(A) No more than 15 swordfish per trip may be possessed in or from
the Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic
coastal state on a vessel using or having on board a longline. However,
legally taken swordfish from the South Atlantic swordfish stock may be
possessed in the Atlantic Ocean north of 5 deg. N. lat. or landed in an
Atlantic coastal state on a vessel with a longline provided the
harvesting vessel does no fishing on that trip in the Atlantic Ocean
north of 5 deg. N. lat. and reports positions with a vessel monitoring
system, as specified in Sec. 635.69. NMFS may adjust the incidental
catch retention limit by filing with the Office of the Federal Register
for publication notification of the change at least 14 days before the
effective date. Changes in the incidental catch limits will be based
upon the length of the directed fishery closure and the estimated rate
of catch by vessels fishing under the incidental catch quota.
(B) No more than 2 swordfish per trip may be possessed in or from
the Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic
coastal state on a vessel that has been issued a handgear permit under
Sec. 635.4(f)(1) provided that such swordfish were not taken with a
harpoon.
(ii) When the directed fishery for the South Atlantic swordfish
stock is closed, swordfish from that stock taken incidental to fishing
for other species may not be retained.
(2) Incidental catch closure. When the annual incidental catch
quota specified in Sec. 635.27(c)(1)(i) is reached, or is projected to
be reached, NMFS will file with the Office of the Federal Register for
publication notification of closure. From the effective date and time
of such notification until an additional incidental catch quota becomes
available, no swordfish may be possessed in or from the Atlantic Ocean
north of 5 deg. N. lat. or landed in an Atlantic coastal state, and a
swordfish in or from the Atlantic Ocean north of 5 deg. N. lat. may not
be sold. However, legally taken swordfish from the South Atlantic
swordfish stock may be possessed in the Atlantic Ocean north of 5 deg.
N. lat. or landed in an Atlantic coastal state on a vessel with a
longline, provided the harvesting vessel does not fish on that trip in
the Atlantic Ocean north of 5 deg. N. lat. and reports positions with a
vessel monitoring system, as specified in Sec. 635.69.
Sec. 635.29 Transfer at sea.
(a) Persons may not transfer an Atlantic tuna, blue marlin, white
marlin, or swordfish at sea in the Atlantic Ocean, regardless of where
the fish was harvested. However, an owner or operator of a vessel for
which a Purse Seine category Atlantic Tunas permit has been issued
under Sec. 635.4 may transfer large medium and giant BFT at sea from
the net of the catching vessel to another vessel for which a Purse
Seine category Atlantic Tunas permit has been issued, provided the
amount transferred does not cause the receiving vessel to exceed its
currently authorized vessel allocation, including incidental catch
limits.
(b) Persons may not transfer a shark or a sailfish at sea shoreward
of the outer boundary of the EEZ, regardless of where the shark was
harvested, and persons may not transfer at sea a shark or a sailfish
taken shoreward of the outer boundary of the EEZ, regardless of where
the transfer takes place.
Sec. 635.30 Possession at sea and landing.
(a) Atlantic tunas. Persons that own or operate a fishing vessel
that possesses an Atlantic tuna in the Atlantic Ocean or that lands an
Atlantic tuna in an Atlantic coastal port must maintain such Atlantic
tuna through offloading either in round form or eviscerated with the
head and fins removed, provided one pectoral fin and the tail remain
attached.
(b) Billfish. Any person that possesses a blue marlin or a white
marlin taken from its management unit or a sailfish taken shoreward of
the outer boundary of the EEZ or lands a blue marlin or a white marlin
in an Atlantic coastal port must maintain such billfish with its head,
fins, and bill intact through offloading. Persons may eviscerate such
billfish, but it must otherwise be maintained whole.
(c) Shark. (1) No person shall fin any shark, i.e., remove only the
fins and return the remainder of the shark to the sea, shoreward of the
outer boundary of the EEZ and on board a vessel for which a commercial
vessel permit for shark has been issued. No person shall possess a
shark fin on board a fishing vessel after the vessel's first point of
landing. No person shall possess or offload wet shark fins in a
quantity that exceeds 5 percent of the weight of the shark carcasses.
The prohibition on finning applies to all species of sharks in the
management unit. For a list of species in the management unit, refer to
Tables 1 and 2 of Appendix A to this part.
(2) Persons that own or operate a vessel that has been issued a
[[Page 29153]]
commercial permit for shark may not fillet a shark at sea. Persons may
eviscerate and remove the head and fins, but must retain the fins with
the dressed carcasses. While on board and when offloaded, the wet shark
fins may not exceed 5 percent of the weight of the shark carcasses.
(3) Persons that own or operate a vessel that has been issued a
commercial permit that lands shark in an Atlantic coastal port must
have all fins weighed in conjunction with the weighing of the carcasses
at the vessel's first point of landing. Such weights must be recorded
on the weighout slips specified in Sec. 635.5(a)(2). Persons may not
possess a shark fin on board a fishing vessel after the vessel's first
point of landing. The wet fins may not exceed 5 percent of the weight
of the carcasses.
(4) Persons aboard a vessel that does not have a commercial permit
for shark must maintain a shark in or from the EEZ intact through
landing--the head, tail, or fins may not be removed. The shark may be
bled.
(d) Swordfish. Persons that own or operate a fishing vessel that
possesses a swordfish in the Atlantic Ocean or lands a swordfish in an
Atlantic coastal port must maintain such swordfish in round or dressed
form through off-loading.
Sec. 635.31 Restrictions on sale and purchase.
(a) Atlantic tunas. (1) Persons that own or operate a vessel that
possesses an Atlantic tuna may sell such Atlantic tuna only if that
vessel has a valid HMS or Atlantic Tunas Charter/Headboat permit, or a
General, Harpoon, Longline, Purse Seine, or Trap category permit for
Atlantic tunas issued under this part. Persons may not sell a BFT
smaller than the large medium size class. However, a large medium or
giant BFT taken by a person on a vessel with an HMS or Atlantic Tunas
Charter/Headboat permit fishing in the Gulf of Mexico at any time, or
fishing outside the Gulf of Mexico when the fishery under the General
category has been closed, may not be sold (see Sec. 635.23(c)). Persons
may sell Atlantic tunas only to a dealer that has a valid permit for
purchasing Atlantic tunas issued under this part.
(2) Dealers may purchase Atlantic tunas only from a vessel that has
a valid commercial permit for Atlantic tunas issued under this part in
the appropriate category.
(3) Dealers or seafood processors may not purchase or sell a BFT
smaller than the large medium size class unless it is lawfully imported
and is accompanied by a BSD, as specified in Sec. 635.42(a).
(4) A BFT in the possession of a dealer or seafood processor is
deemed to be from the Atlantic Ocean. However, a BFT will not be deemed
to be from the Atlantic Ocean if--
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a BSD, as specified in Sec. 635.42(a).
(b) Billfish. (1) Persons may not sell or purchase a billfish taken
from its management unit.
(2) A billfish or a closely related species, namely, black marlin,
Makaira indica, striped marlin, Tetrapturus audax, or shortbill
spearfish, Tetrapturus angustirostris, or a part thereof, in the
possession of a dealer or seafood processor is considered, for purposes
of this part, to be a billfish from the Atlantic Ocean management unit.
However, a billfish or a closely related species will not be considered
to be from the Atlantic Ocean management unit if-
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a Billfish Certificate of Eligibility
that documents that it was harvested from other than the Atlantic Ocean
management unit.
(c) Shark. (1) Persons that own or operate a vessel that possesses
a shark from the management unit may sell such shark only if the vessel
has a valid commercial permit for shark issued under this part. Persons
may possess and sell a shark only when the fishery for that species
group has not been closed, as specified in Sec. 635.28(b)(3).
(2) Persons that own or operate a vessel for which a valid
commercial shark permit has been issued and on which a shark from the
management unit is possessed, may sell such shark only to a dealer that
has a valid permit for shark issued under this part.
(3) Persons that own or operate a vessel for which a valid
commercial shark permit has been issued may not sell fins from a shark
harvested from the management unit, or harvested in the Atlantic Ocean
by a vessel for which a commercial permit for shark has been issued,
that are disproportionate to the weight of shark carcasses landed (the
wet fins may not exceed 5 percent of the weight of the carcasses).
(4) Only dealers that have a valid permit for shark may purchase a
shark from the owner or operator of a fishing vessel. Dealers may
purchase a shark only from an owner or operator of a vessel who has a
valid commercial permit for shark issued under this part, except that
dealers may purchase a shark from an owner or operator of a vessel that
does not have a commercial permit for shark if that vessel fishes
exclusively in state waters. Dealers may purchase a shark from an owner
or operator of fishing vessel that has a permit issued under this part
only when the fishery for that species group has not been closed, as
specified in Sec. 635.28(b)(3).
(5) Dealers may not purchase from an owner or operator of a fishing
vessel shark fins that are disproportionate to the weight of shark
carcasses landed (the wet fins may not exceed 5 percent of the weight
of the carcasses).
(d) Swordfish. (1) Persons that own or operate a vessel on which a
swordfish in or from the Atlantic Ocean is possessed may sell such
swordfish only if the vessel has a valid commercial permit for
swordfish issued under this part. Persons may sell such swordfish only
to a dealer who has a valid permit for swordfish issued under this
part.
(2) Dealers may purchase a swordfish harvested from the Atlantic
Ocean only from an owner or operator of a fishing vessel that has a
valid commercial permit for swordfish issued under this part.
Sec. 635.32 Specifically authorized activities.
(a) General. Consistent with the provisions of Sec. 600.745 of this
chapter, except as indicated in this section, NMFS may authorize for
the conduct of scientific research or the acquisition of information
and data, for the enhancement of safety at sea, for the purpose of
collecting animals for public education or display, or for
investigating the reduction of bycatch, economic discards or regulatory
discards, activities otherwise prohibited by the regulations contained
in this part. Activities subject to the provisions of this section
include, but are not limited to, scientific research resulting in, or
likely to result in, the take, harvest or incidental mortality of
Atlantic HMS, exempted fishing and exempted educational activities, or
programs under which regulated species retained in contravention to
otherwise applicable regulations may be donated through approved food
bank networks. Such activities must be authorized in writing and are
subject to all conditions specified in any letter of acknowledgment,
exempted fishing permit or scientific research permit issued in
response to requests for authorization under this section. For the
purposes of all regulated species covered under this part, NMFS has the
sole authority to issue permits, authorizations, and acknowledgments.
If a regulated species landed or retained under the authority of this
section is subject to a quota, the fish shall be
[[Page 29154]]
counted against the quota category as specified in the written
authorization.
(b) Scientific research activities. For the purposes of all species
covered under this part regulated under the authority of ATCA, the
provisions for research plans under Sec. 600.745(a) and reports under
Sec. 600.745(c)(1) of this chapter are mandatory. In such cases of
authorized scientific research activities, NMFS shall issue scientific
research permits. For scientific research activities involving the
capture of Atlantic sharks, research plans and reports are requested;
letters of acknowledgment shall be issued by NMFS as indicated under
Sec. 600.745(a) of this chapter.
(c) Exempted fishing permits. (1) For activities consistent with
the purposes of this section and Sec. 600.745(b)(1) of this chapter,
other than scientific research conducted from a scientific research
vessel, NMFS may issue exempted fishing permits. Application procedures
shall be as indicated under Sec. 600.745(b)(2) of this chapter, except
that NMFS may consolidate requests for the purposes of obtaining public
comment. In such cases, NMFS may file with the Office of the Federal
Register for publication notification on an annual or, as necessary,
more frequent basis to report on previously authorized exempted fishing
activities and to solicit public comment on anticipated exempted
fishing requests.
(2) Notwithstanding the provisions of Sec. 600.745 of this chapter
and other provisions of this part, a valid shark EFP is required to
fish for, take, retain, or possess a shark in or from the Atlantic EEZ
for the purposes of public display under the shark public display quota
specified in Sec. 635.27(b)(2). A valid shark EFP must be on board the
harvesting vessel, must be available when the shark is landed, must be
available when the shark is transported to the display facility, and
must be presented for inspection upon request of an authorized officer.
A shark EFP is valid for the specific time, area, gear, and species
specified on it.
(3) To be eligible for a shark EFP, a person must provide all
information concerning his or her identification, numbers by species of
sharks to be collected, when and where they will be collected,
vessel(s) and gear to be used, description of the facility where they
will be displayed, and any other information that may be necessary for
the issuance or administration of the permit, as requested by NMFS.
(4) Written reports on fishing activities and disposition of catch
must be submitted to NMFS at an address designated by NMFS, for each
fish collected within 5 days of the collection. An annual written
summary report of all fishing activities and disposition of all fish
collected under the permit must also be submitted to NMFS at an address
designated by NMFS. NMFS will provide specific conditions and
requirements, consistent with the Fishery Management Plan for Atlantic
Tunas, Swordfish, and Sharks in the EFP.
Sec. 635.33 Archival tags.
(a) Implantation report. Any person affixing or implanting an
archival tag into a regulated species must obtain written authorization
from NMFS pursuant to Sec. 635.32. Persons so authorized to conduct
archival tag implantation must provide a written report to NMFS at an
address designated by NMFS, indicating the type and number of tags, the
species and approximate size of the fish as well as any additional
information requested in the authorization.
(b) Landing. Notwithstanding other provisions of this part, persons
may catch, possess, retain, and land an Atlantic HMS in which an
archival tag has been implanted or affixed, provided such persons
comply with the requirements of paragraph (c) of this section.
(c) Landing report. Persons that retain an Atlantic HMS that has an
archival tag must contact NMFS, prior to or at the time of landing;
furnish all requested information regarding the location and method of
capture; and, as instructed, remove the archival tag and return it to
NMFS or make the fish available for inspection and recovery of the tag
by a NMFS scientist, enforcement agent, or other person designated in
writing by NMFS.
(d) Quota monitoring. If an Atlantic HMS landed under the authority
of paragraph (b) of this section is subject to a quota, the fish will
be counted against the applicable quota for the species consistent with
the fishing gear and activity which resulted in the catch. In the event
such fishing gear or activity is otherwise prohibited under applicable
provisions of this part, the fish shall be counted against the reserve
quota established for that species.
Sec. 635.34 Adjustment of management measures.
(a) NMFS may adjust the catch limits for BFT, as specified in
Sec. 635.23, and the quotas for BFT, shark, and swordfish, as specified
in Sec. 635.27.
(b) In accordance with the framework procedures in the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks and the
Fishery Management Plan for Atlantic Billfishes, NMFS may establish or
modify for species or species groups of Atlantic HMS the following
management measures: maximum sustainable yield or optimum yield levels
based on the latest stock assessment or updates in the SAFE report;
domestic quotas; recreational and commercial retention limits,
including target catch requirements; size limits; fishing years or
fishing seasons; species in the management unit and the specification
of the species groups to which they belong; permitting and reporting
requirements; Atlantic tunas Purse Seine category cap on bluefin tuna
quota; time/area restrictions; allocations among user groups; gear
prohibitions, modifications, or use restrictions; effort restrictions;
essential fish habitat; and actions to implement ICCAT recommendations,
as appropriate.
Subpart D--Restrictions on Imports
Sec. 635.40 Restrictions to enhance conservation.
(a) Determinations. Upon a determination by NMFS that species of
fish subject to regulation or under investigation by ICCAT are
ineligible for entry into the United States under 16 U.S.C. 971d (c)(4)
or (c)(5), NMFS, with the concurrence of the Secretary of State, will
file with the Office of the Federal Register for publication a finding
to that effect. Effective upon the date of filing of such finding, all
shipments of fish in any form of the species found to be ineligible
will be denied entry unless, with respect to a particular shipment, it
is established by satisfactory proof pursuant to paragraph (b) of this
section that the particular shipment of fish is eligible for entry.
Entry will not be denied and no such proof will be required for any
such shipment that, on the date of filing was in transit to the United
States on board a vessel operating as a common carrier.
(b) Proof of admissibility. (1) For the purposes of paragraph (a)
of this section and section 6(c) of ATCA, a shipment of fish in any
form of the species under regulation or under investigation by ICCAT
offered for entry, directly or indirectly, from a country named in a
finding filed with the Office of the Federal Register for publication
under paragraph (a) of this section is eligible for entry if the
shipment is accompanied by a completed ATCA COE attached to the invoice
certifying that the fish in the shipment:
(i) Are not of the species specified in the finding;
(ii) Are of the species named in the finding, but were not taken in
the regulatory area; or
[[Page 29155]]
(iii) Are of the species named in the finding, but are products of
an American fishery and were lawfully taken in conformity with
applicable conservation laws and regulations and landed in the country
named in the finding solely for transshipment.
(2) If the fish are offered for entry under paragraph (b)(1)(i) or
(b)(1)(ii) of this section, the ATCA COE must be executed by a duly
authorized official of the country named in the finding and the ATCA
COE must be validated by a consular officer or consular agent of the
United States. Such validation must be attached to the ATCA COE.
(3) If the fish are offered for entry under paragraph (b)(1)(iii)
of this section, the ATCA COE must be executed by a consular officer or
consular agent of the United States and be accompanied by the
declaration(s) required by 19 CFR 10.79. The ``Declaration of Master
and Two Members of Crew on Entry of Products of American Fisheries''
required by 19 CFR 10.79 must contain a further statement as follows:
``We further declare that the said fish were caught by us in full
compliance with part 635, title 50, Code of Federal Regulations, and
such other conservation laws and regulations as were applicable at the
time the fishing operation was in progress.''
(c) Removal of import restrictions. Upon a determination by NMFS
that the conditions no longer exist that warranted the the finding
under paragraph (a) of this section, NMFS will remove the import
restriction by filing with the Office of the Federal Register for
publication notification of removal effective on the date of filing.
However, for 1 year from the date of filing every shipment of fish in
any form that was subject to the finding under paragraph (a) of this
section will continue to be denied entry, unless the shipment is
accompanied by a certification executed by an authorized official of
the country of export and authenticated by a consular officer or
consular agent of the United States certifying that no portion of the
shipment is composed of fish taken prior to or during the import
restriction.
Sec. 635.41 Species subject to documentation requirements.
Imports into the United States and exports or re-exports from the
United States of all BFT or BFT products, regardless of ocean area of
catch, are subject to the documentation requirements of this subpart.
(a) Documentation is required for BFT identified by the following
item numbers from the Harmonized Tariff Schedule:
(1) Fresh or chilled BFT, excluding fillets and other fish meat,
No. 0302.39.00.20.
(2) Frozen BFT, excluding fillets, No. 0303.49.00.20.
(b) In addition, BFT products in other forms (e.g., chunks,
fillets, canned) listed under any other item numbers from the
Harmonized Tariff Schedule are subject to the documentation
requirements of this subpart, except that fish parts other than meat
(e.g., heads, eyes, roe, guts, tails) may be allowed entry without said
statistical documentation.
(c) Southern bluefin tuna (Thunnus maccoyii) may be allowed entry
without the statistical documentation required under this section.
Sec. 635.42 Documentation requirements.
(a) BFT imports. (1) Imports of all BFT products into the United
States must be accompanied at the time of entry (filing of Customs Form
7501 or electronic equivalent) by an original completed approved BSD
with the information and exporter's certification specified in
Sec. 635.43(a). Customs Form 7501 can be obtained by contacting U.S.
Customs at http://www.customs.treas.gov/order.htm. Such information
must be validated as specified in Sec. 635.44(a) by a responsible
government official of the country whose flag vessel caught the tuna
(regardless of where the fish are first landed).
(2) BFT imported into the United States from a country requiring a
BSD tag on all such tuna available for sale must be accompanied by the
appropriate BSD tag issued by that country, and said BSD tag must
remain on any tuna until it reaches its final import destination. If
the final import destination is the United States, the BSD tag must
remain on the tuna until it is cut into portions. If the tuna portions
are subsequently packaged for domestic commercial use or re-export, the
BSD tag number and the issuing country must be written legibly and
indelibly on the outside of the package.
(3) A dealer who sells BFT that was previously imported into the
United States for domestic commercial use must provide on the original
BSD that accompanied the import shipment the correct information and
importer's certification specified in Sec. 635.43(a)(13) and must note
on the top of the BSD the entry number assigned at the time of filing
the entry summary. The original of the completed BSD must be postmarked
and mailed, or faxed, by said dealer to NMFS at an address designated
by NMFS within 24 hours of the time the tuna was imported into the
United States.
(b) BFT exports. (1) A dealer who exports BFT that was harvested by
U.S. vessels and first landed in the United States must complete an
original numbered BSD issued to that dealer by NMFS. Such an
individually numbered document is not transferable and may be used only
once by the dealer to which it was issued to report on a specific
export shipment. A dealer must provide on the BSD the correct
information and exporter certification specified in Sec. 635.43(a). The
BSD must be validated as specified in Sec. 635.44(b). A list of such
officials may be obtained by contacting NMFS. A dealer requesting U.S.
Government validation for exports should notify NMFS as soon as
possible after arrival of the vessel to avoid delays in inspection and
validation of the export shipment.
(2) A dealer who re-exports BFT that was previously imported into
the United States through filing an entry summary (Customs Form 7501 or
electronic equivalent) must provide on the original BSD that
accompanied the import shipment the correct information and
intermediate importer's certification specified in Sec. 635.43(a)(13)
and must note on the top of the BSD the entry number assigned at the
time of filing the entry summary. This requirement does not apply to
BFT destined from one foreign country to another which transits the
United States and for which an entry summary (Customs Form 7501 or
electronic equivalent) is not filed and for which a Shipper's Export
Declaration for in-transit merchandise (Customs Form 7513 or electronic
equivalent) is filed. Customs Form 7513 can be obtained by contacting
U.S. Customs at http://www.customs.treas.gov/order.htm.
(3) A dealer must submit the original of the completed BSD to
accompany the shipment of BFT to its export or re-export destination. A
copy of the BSD completed as specified under paragraph (b)(1) or (b)(2)
of this section must be postmarked and mailed by said dealer to NMFS,
at an address designated by NMFS, within 24 hours of the time the tuna
was exported or re-exported from the United States.
(c) Recordkeeping. A dealer must retain at his or her principal
place of business a copy of each BSD required to be submitted to NMFS
pursuant to this section for a period of 2 years from the date on which
it was submitted to NMFS.
Sec. 635.43 Contents of documentation.
(a) A BSD, to be deemed complete, must state:
[[Page 29156]]
(1) The document number assigned by the country issuing the
document.
(2) The name of the country issuing the document, which must be the
country whose flag vessel harvested the BFT, regardless of where the
tuna is first landed.
(3) The name of the vessel that caught the fish and the vessel's
registration number, if applicable.
(4) The name of the owner of the trap that caught the fish, if
applicable.
(5) The point of export, which is the city, state or province, and
country from which the BFT is first exported.
(6) The product type (fresh or frozen) and product form (round,
gilled and gutted, dressed, fillet, or other).
(7) The method of fishing used to harvest the fish (e.g., purse
seine, trap, rod and reel).
(8) The ocean area from which the fish was harvested (i.e., western
Atlantic, eastern Atlantic, Mediterranean, or Pacific).
(9) The weight of each fish (in kilograms for the same product form
previously specified).
(10) The identifying BSD tag number, if landed by vessels from
countries with tagging programs.
(11) The name and license number of, and be signed and dated in the
exporter's certification block by, the exporter.
(12) If applicable, the name and title of, and be signed and dated
in the validation block by, a responsible government official of the
country whose flag vessel caught the tuna (regardless of where the tuna
are first landed) or by an official of an institution accredited by
said government, with official government or accredited institution
seal affixed, thus validating the information on the BSD.
(13) As applicable, the name(s) and address(es), including the name
of the city and state or province of import, and the name(s) of the
intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by each intermediate and the final
importer.
(b) An approved BSD may be obtained from NMFS to accompany exports
of BFT from the United States. A BFT dealer in a country that does not
provide an approved BSD to exporters may obtain an approved BSD from
NMFS to accompany exports to the United States.
(c) A dealer who exports bluefin tuna to the United States may use
the approved BSD obtainable from NMFS or a document developed by the
country of export, if that country submits a copy to the ICCAT
Executive Secretariat and NMFS concurs with the ICCAT Secretariat's
determination that the document meets the information requirements of
the ICCAT recommendation. In such case, NMFS will provide a list of
countries for which BSDs are approved, with examples of approved
documents, to the appropriate official of the U.S. Customs Service.
Effective upon the date indicated in such notice to the U.S. Customs
Service, shipments of BFT or BFT products offered for importation from
said country(ies) may be accompanied by either that country's approved
BSD or by the BSD provided to the foreign country exporter by NMFS.
Sec. 635.44 Validation requirements.
(a) Imports. The approved BSD accompanying any import of BFT,
regardless of whether the issuing country is a member of ICCAT, must be
validated by a government official from the issuing country, unless
NMFS waives this requirement for that country following a
recommendation to do so by the ICCAT Secretariat. NMFS will furnish a
list of countries for which government validation requirements are
waived to the appropriate official of the U.S. Customs Service. Such
list will indicate the circumstances of exemption for each issuing
country and the non-government institutions, if any, accredited to
validate BSDs for that country.
(b) Exports. The approved BSD accompanying any export of BFT from
the United States must be validated by a U.S. Government official,
except pursuant to a waiver, if any, specified on the form and
accompanying instructions, or in a letter to the permitted dealer from
NMFS. Any waiver of government validation will be consistent with ICCAT
recommendations concerning validation of BSDs. If authorized, such
waiver of government validation may include:
(1) Exemptions from government validation for fish with individual
BSD tags affixed pursuant to Sec. 300.26 of this title or
Sec. 635.5(b)(2)(ii); or
(2) Validation by non-government officials authorized to do so by
NMFS under paragraph (c) of this section.
(c) Authorization for non-government validation. An institution or
association seeking authorization to validate BSDs accompanying exports
from the United States must apply in writing to the Director for such
authorization. The application must indicate the procedures to be used
for verification of information to be validated, list the names,
addresses, and telephone/fax numbers of individuals to perform
validation, and provide an example of the stamp or seal to be applied
to the BSD. NMFS, upon finding the institution or association capable
of verifying the information required on the BSD, will issue, within 30
days, a letter specifying the duration of effectiveness and conditions
of authority to validate BSDs accompanying exports from the United
States. The effectiveness of such authorization will be delayed as
necessary for NMFS to notify the ICCAT Secretariat of non-government
institutions and associations authorized to validate BSDs.
Sec. 635.45 Import restrictions for Belize, Honduras, and Panama.
All shipments of BFT or BFT products in any form harvested by a
vessel of Belize, Honduras, or Panama will be denied entry into the
United States.
Sec. 635.46 Import restrictions on swordfish.
(a) General. To facilitate enforcement of domestic regulations, a
swordfish, or part thereof, less than the minimum size specified at
Sec. 635.20(e) may not be imported, or attempted to be imported, into
the United States unless it is accompanied by the swordfish certificate
of eligibility as specified in paragraph (b) of this section attesting
either that the swordfish was harvested from an ocean area other than
the Atlantic Ocean or that the fish part was derived from a swordfish,
harvested from the Atlantic Ocean, that weighed at least 33 lb (15 kg)
dw at harvest.
(b) Swordfish COE. (1) A shipment of swordfish in any form offered
for import into the United States, directly or indirectly, from any
country is admissible only if accompanied by a swordfish COE. A
swordfish COE is required for swordfish identified by any item number
from the Harmonized Tariff Schedule including but not limited to the
following:
(i) Fresh or chilled swordfish steaks, No. 0302.69.20.41.
(ii) Fresh or chilled swordfish, excluding steaks, No.
0302.69.20.49.
(iii) Frozen swordfish steaks, No. 0302.79.20.41.
(iv) Frozen swordfish, excluding fillets, steaks and other fish
meat, No. 0302.79.20.49.
(v) Frozen swordfish, fillets, No. 0304.20.60.92.
(2) The swordfish COE required under this section must indicate, in
English, the flag state of the harvesting vessel, the ocean area of
harvest and, if the shipment contains swordfish or parts thereof less
than the minimum size specified at Sec. 635.20(e), the reason such
swordfish is eligible for entry, as
[[Page 29157]]
specified in paragraph (a) of this section. The swordfish COE shall be
attached to the invoice accompanying the swordfish shipment from the
point of original export up to and including the point of first
transaction in the United States.
(3) The swordfish COE required under this section must include, in
English, the date, the name, the title of the governmental official or
other authorized person, and the name of the authorizing government
agency of the country exporting the swordfish to the United States. The
swordfish COE must be signed and dated by that governmental official or
authorized person with an official government seal affixed, thus
validating the information on the COE. (4) A swordfish COE may refer to
swordfish taken from only one ocean area of harvest (i.e., Atlantic,
Pacific, Indian) and by vessels under the jurisdiction of only one
nation. If a shipment contains swordfish taken from more than one ocean
area, or swordfish harvested by several vessels from different flag
states, a separate swordfish COE must accompany the shipment for each
ocean area of harvest and for each flag nation of the harvesting
vessels.
(5) A model swordfish COE can be obtained by contacting the
Division Chief. An equivalent form may be used provided it contains all
the information required under this section.
(6) The importer must write the Customs Form 7501 entry number on
each swordfish COE and attach to the dealer report form all swordfish
COEs from shipments that are recorded on the bi-weekly dealer report
form.
Sec. 635.47 Ports of entry.
NMFS shall monitor the importation of BFT and swordfish into the
United States. If NMFS determines that the diversity of handling
practices at certain ports at which BFT or swordfish is being imported
into the United States allows for circumvention of the BSD or swordfish
COE requirement, NMFS may designate, after consultation with the U.S.
Customs Service, those ports at which Pacific or Atlantic bluefin tuna
or swordfish from any source may be imported into the United States.
NMFS shall announce through filing with the Office of the Federal
Register for publication the names of ports so designated and the
effective dates of entry restrictions.
Subpart E-International Port Inspection
Sec. 635.50 Basis and purpose.
The regulations in this subpart implement the ICCAT port inspection
scheme. The text of the ICCAT port inspection scheme may be obtained
from NMFS.
Sec. 635.51 Authorized officer.
For the purposes of this subpart, an authorized officer is a person
appointed by an ICCAT contracting party to serve as an authorized
inspector for ICCAT, and who possesses identification issued by the
authorized officer's national government.
Sec. 635.52 Vessels subject to inspection.
(a) All U.S. fishing vessels or vessels carrying fish species
subject to regulation pursuant to a recommendation of ICCAT, and their
catch, gear, and relevant documents, including fishing logbooks and
cargo manifests, are subject to inspection under this subpart to verify
compliance with ICCAT measures by an authorized officer when landing or
transshipping tuna or when making a port call at a port of any ICCAT
contracting party.
(b) A vessel, or a vessel carrying fish species subject to
regulation pursuant to a recommendation of ICCAT, that is registered by
any of the ICCAT contracting parties, and the vessel's catch, gear, and
relevant documents, including fishing logbooks and cargo manifests, are
subject to inspection under this subpart to verify compliance with
ICCAT measures when landing or transshipping regulated species or when
making a port call in the United States.
(c) The master of a vessel, or a vessel carrying fish species
subject to regulation pursuant to a recommendation of ICCAT, must
cooperate with an authorized officer during the conduct of an
inspection in national and foreign ports. Inspections will be carried
out so that the vessel suffers minimum interference and inconvenience,
and so that degradation of the quality of catch is avoided.
Sec. 635.53 Reports.
(a) Apparent violations shall be reported by the authorized officer
on a standardized ICCAT form or form produced by the national
government which collects the same quality of information. The
authorized officer must sign the form in the presence of the master of
the vessel, who is entitled to add or have added to the report any
observations, and to add his own signature. The authorized officer
should note in the vessel's log that the inspection has been made.
(b) Copies of the report form must be sent to the flag state of the
vessel and to the ICCAT Secretariat within 10 days. Flag states will
consider and act on reports of apparent violations by foreign
inspectors on a similar basis as the reports of their national
inspectors in accordance with their national legislation. The vessel's
flag state will notify ICCAT of actions taken to address the violation.
Subpart F-Enforcement
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. To facilitate enforcement of time-area and
fishery closures, an owner or operator of a commercial vessel permitted
to fish for Atlantic HMS under Sec. 635.4 and that fishes with a
pelagic longline is required to install a NMFS-approved vessel
monitoring system (VMS) unit on board the vessel and operate the VMS
unit whenever the vessel leaves port with pelagic longline gear on
board.
(b) Hardware specifications. The VMS hardware must be approved by
NMFS and must be able to perform all NMFS required functions. NMFS will
file with the Office of the Federal Register for publication
notification listing the specifications for approved VMS units. As
necessary, NMFS will make additions and/or amendments to the VMS
hardware type approval list to account for changes in specifications or
new products offered by manufacturers. NMFS will file with the Office
of the Federal Register for publication notification listing such
additions and/or amendments.
(c) Communications specifications. The communications service
provider must be approved by NMFS and must be able to provide all NMFS
required functions. NMFS will file with the Office of the Federal
Register for publication notification listing the specifications for
approved VMS communications service providers. As necessary, NMFS will
make additions and/or amendments to the VMS communications service
providers type approval list to account for changes in specifications
or new services offered by communications providers. NMFS will file
with the Office of the Federal Register for publication notification
listing such additions and/or amendments.
(d) Installation and service activation. When installing and
activating the NMFS-approved VMS unit, a vessel owner or operator must
follow procedures indicated on an installation and activation checklist
obtained from NMFS. Re-installation shall require the same checklist.
Upon completion of installation, the vessel owner must sign a statement
certifying compliance with the installation procedures of the checklist
and submit such certification to NMFS as indicated on the checklist.
[[Page 29158]]
Vessels fishing prior to submission of the certification will be in
violation of the VMS requirement.
(e) Operation. Owners or operators of vessels permitted, or
required to be permitted, to fish for HMS that have pelagic longline
gear on board, must activate the VMS to submit automatic position
reports beginning 2 hours prior to leaving port and not ending until
the vessel returns to port. While at sea, the unit must operate without
interruption and no person may interfere with, tamper with, alter,
damage, disable, or impede the operation of a VMS, or attempt any of
the same. Vessels fishing outside the geographic area of operation of
the installed VMS will be in violation of the VMS requirement.
(f) Interruption. When the vessel operator is aware that
transmission of automatic position reports has been interrupted, or
when notified by NMFS that automatic position reports are not being
received, the vessel operator must contact NMFS and follow the
instructions given. Such instructions may include but are not limited
to manually communicating to a location designated by NMFS the vessel's
position or returning to port until the VMS is operable.
(g) Repair and replacement. After a fishing trip during which
interruption of automatic position reports has occurred, the vessel's
owner or operator must replace or repair the VMS unit prior to the
vessel's next trip. Repair or reinstallation of a VMS unit or
installation of a replacement, including change of communications
service provider shall be in accordance with the checklist provided by
NMFS and require the same certification.
Sec. 635.70 Penalties.
(a) General. See Sec. 600.735 of this chapter.
(b) Civil procedures for Atlantic tuna. Because of the perishable
nature of Atlantic tuna when it is not chilled or frozen, an authorized
officer may cause to be sold, for not less than its reasonable market
value, unchilled or unfrozen Atlantic tuna that may be seized and
forfeited under ATCA and this part.
Sec. 635.71 Prohibitions.
In addition to the prohibitions specified in Sec. 600.725 of this
chapter, it is unlawful for any person subject to the jurisdiction of
the United States to violate any provision of this part, ATCA, the
Magnuson-Stevens Act, or any other rules promulgated under ATCA or the
Magnuson-Stevens Act.
(a) General. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Falsify information required on an application for a permit
submitted under Sec. 635.4 or Sec. 635.16.
(2) Fish for, catch, possess, retain, or land an Atlantic HMS
without the appropriate valid vessel permit, LAP, or EFP on board the
vessel, as specified in Secs. 635.4 and 635.32.
(3) Purchase, receive, or transfer for commercial purposes any
Atlantic HMS landed by owners of vessels not permitted to do so under
Sec. 635.4, or purchase, receive, or transfer for commercial purposes
any Atlantic HMS without the appropriate valid dealer permit issued
under Sec. 635.4, except that this does not apply to a shark harvested
from a vessel that has not been issued a permit under this part and
that fishes exclusively within the waters under the jurisdiction of any
state.
(4) Sell, offer for sale, or transfer an Atlantic tuna, shark, or
swordfish other than to a dealer that has a valid dealer permit issued
under Sec. 635.4, except that this does not apply to a shark harvested
from a vessel that has not been issued a permit under this part and
that fishes exclusively within the waters under the jurisdiction of any
state.
(5) Fail to possess and make available for inspection a vessel
permit on board the permitted vessel or upon transfer of HMS to a
dealer or a dealer permit at the dealer's place of business, or to
alter any such permit as specified in Sec. 635.4(a).
(6) Falsify or fail to record, report, or maintain information
required to be recorded, reported, or maintained, as specified in
Sec. 635.5.
(7) Fail to allow an authorized agent of NMFS to inspect and copy
reports and records, as specified in Sec. 635.5(f).
(8) Fail to make available for inspection an Atlantic HMS or its
area of custody, as specified in Sec. 635.5(g).
(9) Fail to report the catching of any Atlantic HMS to which a
conventional tag has been affixed under a tag and release program.
(10) Falsify or fail to display and maintain vessel and gear
identification, as specified in Sec. 635.6.
(11) Fail to comply with the requirements for at-sea observer
coverage, as specified in Sec. 635.7 and Sec. 600.746.
(12) For any person to assault, resist, oppose, impede, intimidate,
interfere with, obstruct, delay, or prevent, by any means, any
authorized officer in the conduct of any search, inspection, seizure or
lawful investigation made in connection with enforcement of this part.
(13) Interfere with, delay, or prevent by any means, the
apprehension of another person, knowing that such person has committed
any act prohibited by this part.
(14) Fail to install, activate, repair or replace a vessel
monitoring system prior to leaving port with pelagic longline gear on
board the vessel as specified in Sec. 635.69.
(15) Tamper with, or fail to operate and maintain a vessel
monitoring system as specified in Sec. 635.69.
(16) Fail to contact NMFS or follow NMFS instructions when
automatic position reporting has been interrupted as specified in
Sec. 635.69.
(17) Fish for Atlantic tunas or swordfish with a gillnet for or
possess Atlantic tunas or swordfish on board a vessel with a gillnet on
board, as specified in Sec. 635.21 (b), (d)(1), and (d)(4)(ii).
(18) Fail to retrieve fishing gear and move after an interaction
with a marine mammal or sea turtle, as specified in Sec. 635.21(c)(4).
(19) Fail to release an Atlantic HMS in the manner specified in
Sec. 635.21(a).
(20) Fail to report the retention of an Atlantic HMS that has an
archival tag, as specified in Sec. 635.33.
(21) Fail to maintain an Atlantic HMS in the form specified in
Sec. 635.30.
(22) Fish for, catch, retain, or possess an Atlantic HMS that is
less than its minimum size limit specified in Sec. 635.20.
(23) Fail to comply with the restrictions on use of a pelagic
longline or shark gillnet as specified in Sec. 635.21 (c) and
(d)(3)(ii) and (iii).
(24) Import any BFT or swordfish in a manner inconsistent with any
ports of entry designated by NMFS as authorized by Sec. 635.47.
(25) Dispose of fish or parts thereof or other matter in any manner
after any communication or signal from an authorized officer, or after
the approach of an authorized officer.
(26) Violate the terms and conditions or any provision of an
exempted fishing permit or scientific research permit issued under the
authority of Sec. 635.32.
(27) Operate a charterboat or headboat without a valid U.S. Coast
Guard merchant marine or uninspected passenger vessel license on board
the vessel when fishing for or possessing Atlantic HMS as specified at
Sec. 635.4(c)(2).
(28) Violate any provision of this part, the Magnuson-Stevens Act,
ATCA, or any regulations or permits issued under the Magnuson-Stevens
Act or ATCA.
(29) Fail to comply with the restrictions on importing HMS as
specified at Secs. 635.40, 635.41 and 635.46.
[[Page 29159]]
(b) Atlantic tunas. It is unlawful for any person or vessel subject
to the jurisdiction of the United States to:
(1) Engage in fishing with a vessel that has a permit for Atlantic
tuna under Sec. 635.4, unless the vessel travels to and from the area
where it will be fishing under its own power and the person operating
that vessel brings any BFT under control (secured to the catching
vessel or on board) with no assistance from another vessel, except as
shown by the operator that the safety of the vessel or its crew was
jeopardized or other circumstances existed that were beyond the control
of the operator.
(2) Import or export bluefin tuna without a dealer permit, as
specified in Sec. 635.4(a)(4) and (g)(1).
(3) Fish for, catch, retain, or possess a BFT less than the large
medium size class by a vessel other than one that has on board an
Angling category Atlantic tunas permit, an HMS or Atlantic Tunas
Charter/Headboat permit, or a Purse Seine category Atlantic tunas
permit as authorized under Sec. 635.23 (b), (c), and (e)(2).
(4) Fail to inspect a vessel's permit, fail to affix a dealer tag
to a large medium or giant BFT, or fail to use such tag as specified in
Sec. 635.5(b)(2).
(5) Fail to report a large medium or giant BFT that is not sold, as
specified in Sec. 635.5(a)(3) and Sec. 635.5(c).
(6) As an angler, fail to report a BFT, as specified in
Sec. 635.5(a)(3).
(7) Fish for, catch, retain, or possess a BFT with gear not
authorized for the category permit issued to the vessel or to have on
board such gear when in possession of a BFT, as specified in
Sec. 635.21(d)(1).
(8) Fail to request an inspection of a purse seine vessel, as
specified in Sec. 635.21(d)(1)(vi)(B).
(9) Fish for or catch BFT in a directed fishery with purse seine
nets without an allocation made under Sec. 635.27(a)(4).
(10) Fish for or catch any Atlantic tunas in a directed fishery
with purse seine nets from August 15 through December 31 if there is no
remaining BFT allocation made under Sec. 635.27 (a)(4).
(11) Exceed the recreational catch limit for yellowfin tuna, as
specified in Sec. 635.22(d).
(12) Exceed a catch limit for BFT specified for the appropriate
permit category, as specified in Sec. 635.23.
(13) As a vessel with a General category Atlantic tuna permit, fail
to immediately cease fishing and immediately return to port after
catching a large medium or giant BFT on a commercial fishing day, as
specified in Sec. 635.23(a)(3).
(14) As a vessel with an Angling category Atlantic tunas permit or
an HMS or Atlantic Tunas Charter/Headboat permit, fail to immediately
cease fishing and immediately return to port after catching a large
medium or giant BFT or fail to report such catch, as specified in
Sec. 635.23(b)(1)(iii) and (c)(1) through (c)(3).
(15) As a vessel with an Angling category Atlantic tunas permit or
an HMS or Atlantic Tunas Charter/Headboat permit, sell, offer for sale,
or attempt to sell a large medium or giant BFT after fishing under the
circumstances specified in Sec. 635.23(b)(1)(iii) and (c)(1) through
(3).
(16) Retain a BFT caught under the catch and release program
specified in Sec. 635.26.
(17) As a vessel with a Purse Seine category Atlantic tuna permit,
catch, possess, retain, or land BFT in excess of its allocation of the
Purse Seine category quota, or fish for BFT under that allocation prior
to August 15, as specified in Sec. 635.27(a)(4).
(18) As a vessel with a Purse Seine category Atlantic tunas permit,
land BFT smaller than the large medium size class except as specified
under Sec. 635.23(e)(2).
(19) Fish for, retain, possess, or land a BFT when the fishery is
closed, as specified in Sec. 635.28(a), except as may be authorized for
catch and release under Sec. 635.26.
(20) Approach to within 100 yd (91.5 m) of the cork line of a purse
seine net used by a vessel fishing for Atlantic tuna, or for a purse
seine vessel to approach to within 100 yd (91.5 m) of a vessel actively
fishing for Atlantic tuna, except that two vessels that have Purse
Seine category Atlantic tuna permits may approach closer to each other.
(21) Transfer at sea an Atlantic tuna, except as may be authorized
for the transfer of BFT between purse seine vessels, as specified in
Sec. 635.29(a).
(22) As the owner or operator of a purse seine vessel, fail to
comply with the requirements for weighing, measuring, and information
collection specified in Sec. 635.30(a)(2).
(23) Fish for, catch, possess, or retain a BFT from the Gulf of
Mexico except as specified under Sec. 635.23(f)(1), or if taken
incidental to recreational fishing for other species and retained in
accordance with Sec. 635.23(b) and (c).
(24) Fail to comply with the restrictions on sale and purchase of
an Atlantic tuna, as specified in Secs. 635.5(b), 635.23, and
635.31(a).
(25) Fail to comply with the documentation requirements for
imported or exported BFT or BFT products, as specified in Sec. 635.42.
(26) Import a BFT or BFT product into the United States from
Belize, Panama, or Honduras other than as authorized in Sec. 635.45.
(27) For any person to refuse to provide information requested by
NMFS personnel or anyone collecting information for NMFS, under an
agreement or contract, relating to the scientific monitoring or
management of Atlantic tunas.
(c) Billfish. It is unlawful for any person or vessel subject to
the jurisdiction of the United States to:
(1) Retain a billfish on board a vessel with a pelagic longline on
board or harvested by gear other than rod and reel, as specified in
Sec. 635.21(d)(2).
(2) Transfer a billfish at sea, as specified in Sec. 635.29(a).
(3) Fail to maintain a billfish in the form specified in
Sec. 635.30(b).
(4) Sell or purchase a billfish, as specified in Sec. 635.31(b).
(5) Retain on board a vessel a longbill spearfish, or a blue
marlin, white marlin or sailfish that is less than the minimum size
specified in Sec. 635.20(d).
(d) Shark. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Exceed a recreational retention limit for shark, as specified
in Sec. 635.22(c).
(2) Exceed a commercial retention limit for shark, as specified in
Sec. 635.24(a).
(3) Retain, possess, or land a shark of a species group when the
fishery for that species group is closed, as specified in
Sec. 635.28(b)(1) and (b)(2).
(4) Sell or purchase a shark of a species group when the fishery
for that species group is closed, as specified in Sec. 635.28(b)(3).
(5) Transfer a shark at sea, as specified in Sec. 635.29(b).
(6) Remove the fins from a shark listed in Tables 1 and 2 in
Appendix A to this part, and discard the remainder, or otherwise fail
to maintain a shark in its proper form, as specified in
Sec. 635.30(c)(1) through (c)(4).
(7) Have on board a fishing vessel, sell, or purchase shark fins
that are disproportionate to the weight of shark carcasses, as
specified in Sec. 635.30(c)(2) and (c)(3).
(8) Fail to have shark fins and carcasses weighed and recorded, as
specified in Sec. 635.30(c)(3).
(9) Fail to comply with the restrictions on sale and purchase of a
shark, as specified in Sec. 635.31(c).
(10) Retain, possess, sell, or purchase a prohibited shark.
(11) Falsify information submitted under Sec. 635.16(d)(2) or
(d)(4) in support
[[Page 29160]]
of an application for an ILAP or an appeal of NMFS's denial of an ILAP
for shark.
(12) Fish for Atlantic sharks with unauthorized gear or possess
Atlantic sharks on board a vessel with unauthorized gear on board as
specified in Sec. 635.21(d)(3).
(13) Fish for Atlantic sharks with a gillnet or possess Atlantic
sharks on board a vessel with a gillnet on board, except as specified
in Sec. 635.21(d)(3).
(e) Swordfish. It is unlawful for any person or vessel subject to
the jurisdiction of the United States to:
(1) Purchase, barter for, or trade for a swordfish from the north
or south Atlantic swordfish stock or import a swordfish harvested from
any ocean area without a dealer permit, as specified in
Sec. 635.4(g)(3).
(2) Fail to comply with the restrictions on use of a pelagic
longline specified in Sec. 635.21(b) and (c).
(3) When the directed fishery for swordfish is closed, exceed the
limits specified in Sec. 635.28(c)(1)(i) and (c)(1)(ii).
(4) When the incidental catch fishery for swordfish is closed,
possess, land, sell, or purchase a swordfish, as specified in
Sec. 635.28(c)(2).
(5) Transfer at sea a swordfish, as specified in Sec. 635.29(a).
(6) Fail to maintain a swordfish in the form specified in
Sec. 635.30(d).
(7) Fail to comply with the restrictions on sale and purchase of a
swordfish, as specified in Sec. 635.31(d).
(8) Fish for North Atlantic swordfish from, or possess or land
North Atlantic swordfish on board a vessel, using or having on board
gear other than pelagic longline, harpoon, rod and reel, or handline.
(9) Fish for swordfish from the South Atlantic swordfish stock
using any gear other than pelagic longline.
(10) Fail to comply with the documentation requirements for the
importation of a swordfish, or part thereof, that is less than the
minimum size, as specified in Sec. 635.46.
(11) Falsify information submitted under Sec. 635.16(d)(2) or
(d)(4) in support of an application for an ILAP or an appeal of NMFS's
denial of an initial limited access permit for swordfish.
(12) Falsify information submitted under Sec. 635.46(b) in support
of entry of imported swordfish.
(13) Exceed the incidental catch retention limits specified at
Sec. 635.24(b).
Appendix A to Part 635--Species Tables
Table 1 of Appendix A to Part 635-Oceanic Sharks
A. Large coastal sharks:
1. Ridgeback sharks:
Sandbar, Carcharhinus plumbeus
Silky, Carcharhinus falciformis
Tiger, Galeocerdo cuvieri
2. Non-ridgeback sharks:
Blacktip, Carcharhinus limbatus
Bull, Carcharhinus leucas
Great hammerhead, Sphyrna mokarran
Lemon, Negaprion brevirostris
Nurse, Ginglymostoma cirratum
Scalloped hammerhead, Sphyrna lewini
Smooth hammerhead, Sphyrna zygaena
Spinner, Carcharhinus brevipinna
B. Small coastal sharks:
Atlantic sharpnose, Rhizoprionodon terraenovae
Blacknose, Carcharhinus acronotus
Bonnethead, Sphyrna tiburo
Finetooth, Carcharhinus isodon
C. Pelagic sharks:
Blue, Prionace glauca
Oceanic whitetip, Carcharhinus longimanus
Porbeagle, Lamna nasus
Shortfin mako, Isurus oxyrinchus
Thresher, Alopias vulpinus.
D. Prohibited sharks:
Atlantic angel, Squatina dumerili
Basking, Cetorhinus maximus
Bigeye sand tiger, Odontaspis noronhai
Bigeye sixgill, Hexanchus vitulus
Bigeye thresher, Alopias superciliosus
Bignose, Carcharhinus altimus
Caribbean reef, Carcharhinus perezi
Caribbean sharpnose, Rhizoprionodon porosus
Dusky, Carcharhinus obscurus
Galapagos, Carcharhinus galapagensis
Longfin mako, Isurus paucus
Narrowtooth, Carcharhinus brachyurus
Night, Carcharhinus signatus
Sand tiger, Odontaspis taurus
Sevengill, Heptranchias perlo
Sixgill, Hexanchus griseus
Smalltail, Carcharhinus porosus
Whale, Rhincodon typus
White, Carcharodon carcharias
Table 2 of Appendix A to Part 635-Deepwater/Other Shark Species
Blotched catshark, Scyliorhinus meadi
Broadgill catshark, Apristurus riveri
Chain dogfish, Scyliorhinus retifer
Deepwater catshark, Apristurus profundorum
Dwarf catshark, Scyliorhinus torrei
Iceland catshark, Apristurus laurussoni
Marbled catshark, Galeus arae
Smallfin catshark, Apristurus parvipinnis
Bigtooth cookiecutter, Isistius plutodus
Blainville's dogfish, Squalus blainvillei
Bramble shark, Echinorhinus brucus
Broadband dogfish, Etmopterus gracilispinnis
Caribbean lanternshark, Etmopterus hillianus
Cookiecutter shark, Isistius brasiliensis
Cuban dogfish, Squalus cubensis
Flatnose gulper shark, Deania profundorum
Fringefin lanternshark, Etmopterus schultzi
Great lanternshark, Etmopterus princeps
Green lanternshark, Etmopterus virens
Greenland shark, Somniosus microcephalus
Gulper shark, Centrophorus granulosus
Japanese gulper shark, Centrophorus acuus
Kitefin shark, Dalatias licha
Lined lanternshark, Etmopterus bullisi
Little gulper shark, Centrophorus uyato
Portuguese shark, Cetroscymnus coelolepis
Pygmy shark, Squaliolus laticaudus
Roughskin spiny dogfish, Squalus asper
Smallmouth velvet dogfish, Scymnodon obscurus
Smooth lanternshark, Etmopterus pusillus
American sawshark, Pristiophorus schroederi
Florida smoothhound, Mustelus norrisi
Smooth dogfish, Mustelus canis
PART 644--ATLANTIC BILLFISHES [REMOVED]
17. Under the authority of 16 U.S.C. 971 et seq. and 16 U.S.C. 1801
et seq., part 644 is removed effective July 1 ,1999, except that
Sec. 644.21(a) is removed and reserved effective May 24, 1999.
PART 678--ATLANTIC SHARKS [REMOVED]
18. Under the authority of 16 U.S.C. 1801 et seq., part 678 is
removed effective July 1, 1999.
[FR Doc. 99-13090 Filed 5-24-99; 3:29 pm]
BILLING CODE 3510-22-F
