[Federal Register Volume 61, Number 250 (Friday, December 27, 1996)]
[Proposed Rules]
[Pages 68202-68208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32891]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 678
[Docket No. 961211348-6348-01; I.D. 121196A]
RIN 0648-AH77
Atlantic Shark Fisheries; Limited Access Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to implement the limited access system contained
in proposed Amendment 1 to the Fishery Management Plan for Atlantic
sharks (FMP). If approved, Amendment 1 would establish a two-tiered
permit system for the Atlantic shark commercial fishery, set forth
eligibility criteria for these permits based on historical
participation, and limit the transferability of such permits. NMFS has
determined that the Atlantic shark fishery is overfished and
overcapitalized, with an excessive number of permitted vessels relative
to the harvest level prescribed by the recovery plan. NMFS is holding
public hearings and requesting written comments from the public on this
proposed rule. The objective of this amendment is to take a first and
significant step to prevent further overcapitalization.
DATES: Written comments on this proposed rule must be received on or
before February 18, 1997.
ADDRESSES: Comments on this proposed rule should be sent to William
Hogarth, Acting Chief, Highly Migratory Species Management Division (F/
SF1), National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910. Copies of Amendment 1, which includes an
Environmental Assessment (EA) and Regulatory Impact Review (RIR), are
available from Margo Schulze, Fishery Biologist, at the same address.
See SUPPLEMENTARY INFORMATION for hearing locations. Comments regarding
the collection-of-information requirement required in this rule should
be sent to Margo Schulze and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Margo Schulze or John Kelly, 301-713-
2347; fax: 301-713-1917.
SUPPLEMENTARY INFORMATION:
Background
The fishery for Atlantic sharks is managed under the FMP prepared
by NMFS under authority of section 304(g) of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), as
amended, and implemented on April 26, 1993, through regulations found
at 50 CFR part 678. The FMP established three species management
groups, commercial quotas and recreational bag limits, fishing seasons,
mandatory vessel reporting, and required commercial vessel permits
(with an earned income requirement). The Atlantic shark fishery has
operated under open access.
On February 22, 1994, a notice of control date for entry into the
Atlantic shark fishery was published in the Federal Register (59 FR
8457). This notice announced that anyone entering the fishery after
that date (the ``control date'') may not be assured of future access to
the fishery if some form of limited access were implemented later.
Currently, there are more vessels permitted in the fishery than are
necessary or desirable to harvest the available total allowable catch
(TAC). During 1993-96, the number of commercial vessels permitted in
the fishery has fluctuated between approximately 1,500 and 2,748
vessels, while the TAC has been harvested by about 100 to 150 vessels
(approximately 3 to 5 percent of the permitted fleet).
Need for Limited Access
The creation of a limited access system would be an initial step
toward achieving a more reasonable balance between the harvesting
capacity of the permitted fleet and the TAC. Implementation of proposed
limited access would, at a minimum, prevent further increases in the
number of permits in the fisheries that target sharks and would
dramatically reduce the number of speculative permit holders (those
without significant, documented landings of Atlantic sharks).
While a limited access system alone would not resolve all of the
problems associated with open access fisheries (e.g., derby fishing
conditions, ``the race for fish,'' market gluts), it would help prevent
them from becoming more severe. Additionally, considerable public
comment subsequent to the scoping meetings convened by NMFS indicates
increased support for limited access from the directed shark fishing
industry.
A limited access system would stabilize fleet size and provide an
opportunity for NMFS to collect data, conduct studies, and work
cooperatively with fishery participants and other constituents to
develop a more flexible, permanent, effort control program in the
future.
Permit Categories
NMFS proposes to implement a two-tiered commercial fishing permit
system in which permits would be classified as ``directed'' or
``incidental.'' The reason for issuing two types of permits is to
define and regulate the directed shark fishery separately from
commercial fisheries that target other species but take sharks as
bycatch. Only persons holding directed fishery permits would be
eligible to participate in directed fisheries under the management
measures already established, while those holding incidental permits
would be restricted to the bycatch fishery with more restrictive
management measures. NMFS proposes to restrict access to both the
directed and incidental shark fisheries.
Eligibility Criteria
Only person or entities that held a shark permit at any time from
July 1, 1994, through December 31, 1995, who have documented landings
equal to or above the specified directed or incidental threshold levels
of historical participation in the shark fishery, who meet the current
earned income requirement, and who own a shark-permitted vessel at the
time of
[[Page 68203]]
publication of the final rule would receive a directed or incidental
commercial permit, respectively.
It is considered that catch histories belong to current permit
holders rather than to vessels; i.e., if a shark permit holder sells
one vessel and buys another, he/she retains the history of the vessel
sold and does not acquire the history of the vessel purchased. Thus, it
is considered that persons or entities purchasing existing shark
vessels have not also purchased that vessel's catch history (since the
fishery is currently open access, it would be imprudent for someone to
pay money for a catch history from which he/she may never benefit).
However, the establishment of a control date by NMFS has changed this
assumption as several vessels were purchased after the control date
with stipulations that the catch history of the purchased vessel was
purchased as well. Accordingly, NMFS will accept legal documentation of
transfers of catch histories in the determination of eligibility.
These eligibility criteria are proposed because the majority of
existing shark permit holders have not participated in the fishery
(have not had significant reported landings of sharks). If all current
shark permit holders were to be allowed future participation in the
commercial shark fishery, there would be potential to reach or even to
exceed greatly the TAC in a short time. Given the overfished status of
large coastals and the fully fished status of pelagics and small
coastals, exceeding the TAC could have substantial long-term negative
impacts on these resources.
For the directed fishery, NMFS proposes a minimum landings
threshold of 250 sharks from January 1, 1991, through February 21,
1994, and 125 sharks from February 22, 1994 (the control date), through
June 30, 1995 (which is equivalent to having landed sufficient shark
each year on average to earn $5,000 per year in gross revenue). NMFS
estimates that 134 vessels would be eligible for directed shark permits
under this landings criteria.
For the incidental fishery, NMFS proposes a minimum landings
threshold of three sharks from January 1, 1991, through February 21,
1994, and two sharks from February 22, 1994 (the control date), through
June 30, 1995. NMFS estimates that 279 vessels would be eligible for
incidental shark permits under this landings criteria.
If a vessel were sold after the control date and its landings
history were included specifically in the written sales agreement, such
landings would accrue to the purchaser (and no longer to the seller)
for purposes of qualifying for a directed or incidental permit under
the proposed limited access system.
Permit Process
NMFS would identify and notify all permit holders of their
eligibility status for the directed or incidental shark fishery, after
analysis based on the established eligibility criteria.
Upon receipt of this initial notification, eligible permit holders
may submit an application for a directed or incidental fishery permit.
If a permit holder is informed that he or she does not qualify for a
permit, but he or she believes that there is credible evidence to the
contrary, the permit holder may apply for a permit and provide the
appropriate documentation. NMFS would then evaluate all applications
and any accompanying documentation, and notify the applicant of its
decision either to accept or deny the permit application.
If the permit application is denied, the applicant may appeal
within 90 days of receipt of the notice of denial. Provisional directed
or incidental fishery permits, as appropriate, would be issued, pending
the outcome of an appeal, until the final decision has been rendered.
All appeal decision letters would be mailed via certified mail. If the
appeal is denied, provisional permits would become invalid 5 days after
the receipt of the notice of denial. If the appeal is approved,
provisional permits would become invalid upon receipt of the
appropriate permit.
Only owners or operators of permitted vessels that were permitted
at any time from July 1, 1994, through December 31, 1995, would be
considered for appeal. All appeals would need to be made in writing. To
appeal, the applicant would complete an appeal cover sheet with the
name, affiliation (if any), address, and telephone number of the
applicant. Additional pages and documentation could be attached, as
necessary.
The sole ground for appeal would be that NMFS used incorrect or
incomplete data in the eligibility analysis. No hardship cases would be
heard. Valid documentation of landings covering the eligibility period
would be required for consideration of an appeal. Documentation that
would be considered in support of an appeal from fishers who believe
they qualify for a directed or incidental fishery permit would be
restricted to official NMFS logbook records that have been submitted to
NMFS prior to August 30, 1995 (60 days after the cutoff date for
eligible landings); official, verifiable sales slips or receipts from
registered dealers; and state landings records. Dealer sales slips or
receipts would have to show definitively the species and the vessel's
name or other traceable indication of the harvesting vessel. Dealer
records would have to contain a sworn affidavit by the dealer
confirming the accuracy and authenticity of the records.
While photocopies would be acceptable for initial submission, NMFS
might request originals at a later date, which would be returned to the
applicant via certified mail. Any submitted materials of questionable
authenticity would be referred for investigation to NMFS' Office of
Enforcement.
NMFS would designate appeals officers, who would be NOAA employees.
The appeals officers would individually review cases but would confer
regularly to ensure consistency.
The appeals officers would review appeals for no more than 30 days
before making a recommendation to the Director of the Office of
Sustainable Fisheries (Director). The Director would render the final
decision for the Department of Commerce. All denial letters would be
sent by certified mail with return receipt so that NMFS would know when
letters were received by permit holders.
Restrictions on Transfer of Permits
NMFS recognizes that vessels may sink or deteriorate beyond repair,
and vessel owners may have valid reasons for wishing to exit the
fishery. NMFS proposes to create a system in which directed commercial
permits would be transferable with the sale of the permitted vessel, or
to a vessel of similar harvesting capacity, or a replacement vessel
owned or purchased by the original permittee but not under any other
circumstances. Such transfers would be subject to upgrading
restrictions (defined in next section). Incidental permits would not be
transferable. NMFS recognizes that the same factors present in the
directed fishery (e.g., vessel sinking or deterioration, disability,
retirement) would also be present in the incidental fishery and that
non-transferability of incidental permits would eventually result in
the elimination of the incidental fishery through attrition. However,
NMFS believes that allowing transferability of incidental permits could
result in substantial increases in fishing effort levels. Prohibiting
transferability of incidental permits would slow the growth of fishing
effort in the limited access fishery.
In years after 1997, the eligibility criteria to which initial
limited access permit holders are subject would not apply. In other
words, transferees/
[[Page 68204]]
buyers of limited access vessel permits would not be required to meet
the initial limited access eligibility criteria, (i.e., having held a
shark permit at any time from July 1, 1994, through December 31, 1995;
having met the landings thresholds and the earned income requirement;
and owning a vessel at the time of publication of the final rule).
Restrictions on Vessel Upgrading
NMFS proposes to require that any vessel to which a permit is
transferred be defined as the ``new'' vessel and be required to have
the same or less gross registered tonnage and registered length as the
originally permitted vessel. This restriction would apply to
``replacement vessels,'' or those vessels acquired by the original
permittee to replace originally permitted vessels, and to ``new
vessels,'' or those vessels not originally permitted but to which a
permit has been transferred after the original permittee has sold the
permit. This restriction would also apply to the refurbishment of
existing permitted vessels.
Ownership Limits
NMFS proposes to restrict the number of permitted vessels that any
one person or entity could own or control to no more than 5 percent of
the permitted vessels in the directed fishery. This would prevent
significant consolidation and maintain the historically predominant
individual owner/operator character of the shark fishery.
Incidental Harvest Limits
Without limits on the harvest of bycatch, the potential would exist
for the incidental fishery to target and harvest significant numbers of
sharks. This would defeat the purpose of the two-tiered commercial
permit system. For these reasons, NMFS proposes to establish a harvest
limit for the incidental fishery at a maximum of four sharks (all
species combined) per vessel per day. Vessel logbooks would be examined
to determine the dates of trip origin and termination (number of days)
to ascertain the authorized harvest limit for each trip, with the
number of days of the trip multiplied by 4 as the maximum number of
sharks of all species authorized per trip.
NMFS believes that establishing a limit of four shark per vessel
per day for the commercial incidental fishery would ensure that fishing
mortality on the overfished large coastal stock does not increase,
while still providing the opportunity for incidental fishers to land
some bycatch. The rationale for combining all species groups is that a
single catch limit would minimize fishing mortality on the overfished
large coastal sharks, prevent increases in fishing mortality on the
fully fished pelagic and small coastal sharks, reduce the incentive to
target sharks while fishing for other species, and greatly facilitate
enforcement. A limit of four sharks per vessel per day limit for the
incidental limit would be restrictive for the pelagic longline
fisheries, which often catch substantial numbers of pelagic sharks as
bycatch. However, at this time, most pelagic sharks are released except
for makos and threshers, which are harvested for their valuable fins,
and porbeagles, for which there is a small directed fishery. Current
estimates of effective fishing mortality on pelagic sharks indicate
that significant increases in fishing mortality would likely result in
overfishing. The proposed incidental limit, in conjunction with the
limited number of permits that would be issued for the incidental
category under the proposed limited access system (approximately 279
permits), would allow some sharks caught as bycatch to be landed, while
an increase in the current level of fishing mortality would be
prevented.
Fees
The Regional Director may charge a fee to recover the
administrative expenses of permit issuance and appeals. The amount of
the fee would be determined, at least annually, in accordance with the
procedures of the NOAA Finance Handbook, available from the Regional
Director, for determining administrative costs of each special product
or service. The fee would not exceed such costs and would be specified
with each application form. The appropriate fee would be required to
accompany each application. Failure to pay the fee would preclude
issuance of the permit. Payment by a commercial instrument later
determined to be insufficiently funded would invalidate any permit.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. The Assistant
Administrator has preliminarily determined that the proposed
regulations are necessary for management of the Atlantic shark fishery.
NMFS prepared a draft EA for this proposed rule with a preliminary
finding of no significant impact on the human environment. NMFS
reinitiated consultation on the Atlantic shark fishery under section 7
of the Endangered Species Act on September 25, 1996. This consultation
will consider new information concerning the status of the northern
right whale. NMFS has determined that proceeding with this rule,
pending completion of that consultation, will not result in any
irreversible and irretrievable commitment of resources that would have
the effect of foreclosing the formulation or implementation of any
reasonable and prudent alternative measures. This rule would reduce the
number of permits in the Atlantic shark commercial fishery and freeze
the harvesting capacity of the fleet at current levels, thereby
preventing further overcapitalization and derby fishing conditions and
would likely reduce interaction rates.
The Assistant General Counsel for Legislation and Regulations of
the Department of Commerce certified to the Chief Counsel for Advocacy
of the Small Business Administration that this proposed rule, if
adopted, would not have a significant economic impact on a substantial
number of small entities as follows:
The proposed rule would establish a two-tiered limited access
permit system for the Atlantic shark fishery, set forth eligibility
criteria for these permits based on historical participation, and
limit the transferability of such permits. The Atlantic shark
fishery is overfished and overcapitalized, with an excessive number
of permitted vessels relative to the harvest level prescribed by the
recovery plan.
The purpose of this proposed rule is to rationalize current
harvesting capacity with total allowable catch and substantially
reduce latent effort without significantly altering the status quo
in the Atlantic shark fishery. Practically all current participants
of the shark fishery readily fall within the definition of small
business. The proposed rule will affect all current permit holders
in the Atlantic shark fishery. However, few if any shark fishers
that are substantially dependent on the fishery would be excluded
under the proposed limited access rule.
Speculative permit holders, by definition, have not participated
in the commercial shark fishery at all or have not been
substantially dependent on the fishery. The incidental bycatch
limits continue to provide for speculative commercial fishers to
land some sharks; accordingly, annual gross revenues should not
decrease substantially.
Therefore, redefining commercial shark permits as directed and
incidental will not significantly alter the status quo of the
Atlantic shark fishery in terms of fishers' annual gross revenues.
Since the proposed rule will not significantly impact presently
active shark fishers, the ``significant economic impact'' criterion
will not be met. Therefore, the substantive changes proposed are
minimal, primarily affecting the applicability of permitting
requirements.
Any of the proposed limited entry measures have implications on
the gross revenues of small entities. In essence, those that will be
excluded from any form of limited entry system will experience
[[Page 68205]]
reduction in their gross revenues at least in the short run. If
qualification for any form of limited entry is similar to the one
adopted for the species endorsement and bycatch while limited is
allowed, those excluded would probably not experience more than a 5
percent reduction in their gross revenues.
The substantive changes proposed primarily affecting the
applicability of permitting requirements. The need for these changes
is explained in the preamble to the proposed rule.
Notwithstanding any other provision of law, no person is required to
respond to, nor shall a person be subject to a penalty for failure to
comply with, a collection-of-information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB Control Number.
This proposed rule does not change any currently approved vessel
permitting or reporting requirements under OMB Control Numbers 0648-
0205, which is estimated and approved at 20 minutes per permit
application, and 0648-0016, which is estimated and approved at 15
minutes per logbook report. However, the appeals procedure does
constitute a new collection-of-information requirement, which has been
submitted to OMB for approval. An appeal of a permit denial is
estimated to take 1.5 hours, including the time to gather records, make
copies, and mail documents to NMFS. Comments regarding: (1) the
accuracy of this burden estimate (including hours and cost); (2)
whether the proposed collection of information is necessary for the
proper performance of NMFS' functions, including whether the sought
information has practical utility; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; (4) ways to
minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques or other
forms of information; and (5) any other aspects of information
collection should be sent to OMB and NMFS (see ADDRESSES).
This action has been determined to be not significant for purposes
of E.O. 12866.
List of Subjects in 50 CFR Part 678
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: December 20, 1996.
Nancy Foster,
Deputy Assistant Administrator, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 678 is
proposed to be amended as follows:
PART 678--ATLANTIC SHARKS
1. The authority citation for part 678 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 678.2, a definition for ``Director'' is added, in
alphabetical order, to read as follows:
Sec. 678.2 Definitions.
* * * * *
Director means the Director, Office of Sustainable Fisheries F/SF,
NMFS, or a designee.
* * * * *
3. In Sec. 678.4, paragraphs (a) through (c) and (e) through (k)
are revised to read as follows:
Sec. 678.4 Permits and fees.
(a) Vessel permits. Any owner or operator of a vessel of the United
States that fishes for, possesses, or lands Atlantic sharks from the
management unit, except vessels that fish for Atlantic sharks
exclusively in state waters, and recreational fishing vessels, must
obtain and carry on board a valid Federal shark permit issued under
this paragraph.
(1) Limited access eligibility in 1997. NMFS will issue two types
of Atlantic shark vessel permits: Directed and incidental. To be
eligible to obtain a shark permit for 1997, a vessel owner or operator
must have held a valid Federal commercial shark permit at any time from
July 1, 1994, through December 31, 1995, must meet the earned income
qualification specified in paragraph (b)(1)(vi) of this section, and
must own or operate a vessel with a valid shark permit on the date of
publication of the final rule.
(i)(A) Directed permits will be issued only to eligible permit
holders that have documented landings of at least 250 sharks from
January 1, 1991, through February 21, 1994, and 125 sharks from
February 22, 1994, through June 30, 1995.
(B) Incidental permits will be issued only to eligible permit
holders that have documented landings of three sharks from January 1,
1991, through February 21, 1994, and two sharks from February 22, 1994,
thorough June 30, 1995.
(ii) If the vessel owner does not meet the limited access criteria
specified in paragraph (a)(1) of this section and the earned income
qualification specified in paragraph (b)(1)(vi) of this section and the
operator does meet those qualifications, the operator may apply for a
shark permit.
(iii) A shark permit for 1997 will not be issued unless an
application for such permit is received by NMFS on or before December
31, 1997.
(2) Eligibility in 1998 and thereafter. To be eligible for a shark
permit in years after 1997, a vessel owner or operator must have been
issued a shark permit for the preceding year or the vessel must be
replacing a vessel that has been retired from the Atlantic commercial
shark fishery and had been issued a shark permit for the preceding
year, and the vessel and owner must meet the criteria set forth in
paragraphs (a)(4) through (a)(6) of this section. If more than one
vessel owner claims eligibility to apply for a shark permit based on
one vessel's fishing and permit history after 1997, the Regional
Administrator shall determine who qualifies for the limited access
Atlantic shark vessel permit according to paragraph (a)(3) of this
section.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to be retained by the original permit holder whenever the
vessel is bought, sold, or otherwise transferred, unless there is a
written agreement, signed by the transferor/seller and transferee/
buyer, or other credible written evidence, verifying that the
transferor/seller is transferring/selling the vessel's fishing and
permit history.
(4) Permit transfer. Directed permits are transferable to a new
vessel and/or owner or to a replacement vessel owned or purchased by
the original permittee but not under any other circumstances. Such
transfers are subject to the requirements specified in paragraph (a)(5)
of this section. Incidental permits are not transferable or assignable;
incidental permits are valid only for the vessel and owner or operator
of original issuance.
(5) Vessel replacement/upgrading. Transfer of directed shark
permits is authorized only for new or replacement vessels of the same
or lesser gross registered tonnage and registered length as the
originally permitted vessel.
(6) Ownership limits. One person or entity may own or control no
more than 5 percent of the vessels in the directed shark fishery.
(7) Notification of eligibility for 1997. (i) NMFS will attempt to
notify all current commercial shark permit holders of their eligibility
for a directed or incidental shark permit, based on the eligibility
criteria set forth in paragraph (a)(1) of this section. Upon receipt of
this determination, eligible permit holders may submit an application
for the appropriate permit.
(ii) If a vessel owner or operator has been notified that the
vessel is not eligible for a directed shark permit or is only eligible
for an incidental shark permit, and the vessel owner or operator can
provide credible evidence that the
[[Page 68206]]
vessel does qualify under the pertinent criteria, the vessel owner or
operator may apply for the appropriate permit by submitting the
documentation required under paragraph (9)(ii) of this section. If,
based on the documentation supplied with the application, NMFS
determines that the vessel meets the eligibility criteria, the
appropriate permit will be issued.
(8) Application denial. If, based on the documentation supplied
with the application, NMFS determines that the vessel does not meet the
eligibility criteria specified in paragraphs (a)(1) and (a)(2) of this
section or the conditions specified in paragraph (e) of this section,
the permit will be denied. Letters of denial will be sent via certified
mail.
(9) Appeals. (i) Any applicant denied a limited access permit for
Atlantic shark vessels may appeal the denial to NMFS within 90 days of
the notice of denial. The sole ground for appeal is that NMFS erred in
its determination of eligibility on the basis of incorrect or
incomplete data. Valid documentation of landings covering the
eligibility period as specified in paragraph (a)(9)(ii) of this section
must be provided by the applicant for NMFS to consider an appeal.
Photocopies will be acceptable for initial submission. NMFS may request
originals at a later date, which will be returned to the applicant via
certified mail. Any such appeal must be in writing. Documentation that
is of questionable authenticity will be referred for investigation to
NMFS' Office of Enforcement.
(ii) Valid documentation. The only documentation that will be
considered in support of an application or appeal are official NMFS
logbook records that were submitted to NMFS prior to August 30, 1995,
state landings records, and official, verifiable sales slips or
receipts from registered dealers. Dealer sales slips and receipts must
definitively show the species landed and vessel's name or other
traceable information for the harvesting vessel and must contain a
sworn affidavit by the dealer confirming the accuracy and authenticity
of the records.
(iii) Status during appeal. The Regional Director shall issue a
provisional permit for the category of appeal for, which shall be valid
for the pendency of the appeal to a vessel and owner for which an
appeal has been initiated. The provisional permit must be carried on
board the vessel while participating in the Atlantic shark fishery and
is not transferable.
(iv) Appeals officers. NMFS will appoint appeals officers, who will
review the written materials and submit findings and a recommendation
to the Regional Director within 30 days of receipt of a complete
appeal.
(v) Final decision on appeals. Upon receiving the findings and a
recommendation, the Regional Director will issue a final decision on
the appeal. The Regional Director's decision is the final
administrative action of the Department of Commerce.
(vi) Notification of final decision on appeals. The Regional
Director shall notify the appellant of the final decision on the appeal
by letter sent via certified mail. If the appeal is denied, the
provisional permit will become invalid 5 days after receipt of the
notice of denial. If the appeal is granted, the provisional permit will
become invalid upon receipt of the appropriate permit.
(10) Adjustments to eligibility. In years after 1997, NMFS may
adjust the eligibility criteria for issuance of a shark permit. In
making the adjustment, NMFS shall take into consideration the fishing
mortality goals and the objectives of the FMP. Any such adjustment may
be made following a reappraisal and analysis under the framework
provisions specified in Sec. 678.27.
(11) Condition. A vessel owner who applies for a shark permit under
this section must agree, as a condition of the permit, that the
vessel's shark fishing, catch, and gear are subject to the requirements
of this part during the period of validity of the permit, without
regard to whether such fishing occurs in the EEZ, landward of the EEZ,
or outside the EEZ, and without regard to where such shark or gear are
possessed, taken, or landed. However, when a vessel fishes in the
waters of a state that has more restrictive regulations on shark
fishing, those more restrictive regulations may be applied by that
state to fishing, catch, and gear in its waters.
(b) Application for a shark permit. (1) In the year 1997, an
initial application for a shark permit must be submitted and signed by
the owner (in the case of a corporation, the qualifying officer or
shareholder; in the case of a partnership, the qualifying general
partner) or operator of the vessel. The application must be submitted
to the Regional Director at least 30 days prior to the date on which
the applicant desires to have the permit made effective. An applicant
must provide the following:
(i) A copy of the vessel's U.S. Coast Guard certificate of
documentation or, if not documented, a copy of its state registration
certificate.
(ii) The vessel's name, official number, registered gross tonnage,
and registered length.
(iii) Name, mailing address including ZIP code, telephone number,
and social security number, and date of birth of the owner (if the
owner is a corporation/partnership, in lieu of the social security
number, the employer identification number, if one has been assigned by
the Internal Revenue Service (IRS), and, in lieu of the date of birth,
provide the date the corporation/partnership was formed).
(iv) If the owner does not meet the earned income qualification
specified in paragraph (b)(1)(vi) of this section and the operator does
meet that qualification, the name, mailing address including ZIP code,
telephone number, social security number, and date of birth of the
operator.
(v) Information concerning vessel, gear used, fishing areas, and
fisheries vessel is used in, as specified on the application form.
(vi) A sworn statement by the applicant (if the applicant is a
corporation or partnership, by an officer, shareholder, general
partner, or if the applicant is an operator, by the operator)
certifying that, during 1 of the 3 calendar years preceding the
application:
(A) More than 50 percent of his or her earned income was derived
from commercial fishing, that is, sale of the catch, or from charter or
headboat operations;
(B) His or her gross sales of fish were more than $20,000; or
(C) For a vessel owned by a corporation or partnership, the gross
sales of fish of the corporation or partnership were more than $20,000.
(vii) Documentation supporting the statement of income, if required
under paragraph (b)(1)(x) of this section.
(viii) A sworn statement that the applicant agrees to the
conditions specified in paragraph (a)(11) of this section.
(ix) Any other information that may be necessary for the issuance
or administration of the permit, as requested by the Regional Director
and included on the application form.
(x) The Regional Director may require the applicant to provide
documentation supporting the sworn statement under paragraph (b)(1)(vi)
of this section before a permit is issued or to substantiate why such
permit should not be revoked or otherwise sanctioned under paragraph
(h) of this section. Such required documentation may include copies of
appropriate forms and schedules from the applicant's income tax return.
Copies of income tax forms and schedules are treated as confidential.
[[Page 68207]]
(2) In years after 1997, a shark permit holder may apply for a
shark permit renewal, provided that the initial information under which
the permit holder qualified for a shark permit has not changed as
specified in paragraph (k) of this section. Shark permits must be
renewed annually and renewal applications must be submitted to the
Regional Director at least 30 days prior to the date on which the
applicant desires to have the permit made effective. Only a holder of a
valid shark permit is eligible for a renewal of that permit.
(3) In years after 1997, an application for permit transfer of a
directed shark permit to a new vessel and/or owner will be authorized,
subject to transfer and upgrading restrictions specified in paragraphs
(a)(4) and (a)(5) of this section, respectively. Incidental shark
permits are not transferable. All other requirements and restrictions
specified in this part apply to transferred limited access permits and
permit holders.
(c) Dealer permits. A dealer who receives sharks from the
management unit must have a valid dealer permit issued under this part.
An application for an annual dealer permit must be submitted and signed
by the dealer or an officer of a corporation acting as a dealer. The
application must be submitted to the Regional Director at least 30 days
prior to the date on which the applicant desires to have the permit
made effective.
(1) A permit applicant must provide the following:
(i) A copy of each state wholesaler's license held by the dealer.
(ii) Business name; mailing address, including zip code, of the
principal office of the business; employer identification number, if
one has been assigned by the Internal Revenue Service; and date the
business was formed.
(iii) The address of each physical facility at a fixed location
where the business receives fish.
(iv) Applicant's name; official capacity in the business; address,
including zip code; telephone number; social security number; and date
of birth.
(v) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(2) Transfer. A dealer permit issued under paragraph (c)(1) of this
section may be transferred upon sale of the dealer's business. However,
such transferred permit shall expire 30 days after sale of the dealer's
business. A person purchasing a permitted dealership who desires to
conduct activities for which a new permit is required after that 30-day
period must apply promptly for a permit in accordance with paragraph
(c) of this section.
* * * * *
(e) Issuance--(1) Limited access shark permits. Except as provided
in subpart D of 15 CFR part 904 and under paragraphs (a)(8) and (a)(9)
of this section, the Regional Director shall issue a Federal shark
permit within 30 days of receipt of the application unless:
(i) The applicant has failed to submit a complete application. An
application is complete when all requested forms, information,
documentation, and fees, if applicable, have been received and the
applicant has submitted all applicable reports specified at Sec. 678.5;
(ii) The application was not received by NMFS by the deadlines set
forth in paragraph (a)(1)(v) of this section;
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraphs (a)(1) and (a)(2) of
this section; or
(iv) The applicant has failed to meet any other application
requirements stated in this part.
(2) Dealer permits. The Regional Director will issue a dealer
permit at any time to an applicant if the application is complete. An
application is complete when all requested forms, information, and
documentation have been received and the applicant has submitted all
applicable reports specified at Sec. 678.5(a) or Sec. 678.5(b).
(3) Incomplete applications. Upon receipt of an incomplete
application, the Regional Director will notify the applicant of the
deficiency. If the applicant fails to correct the deficiency within 90
days of the date of the Regional Director's letter of notification, the
application will be considered abandoned.
(f) Duration. A permit remains valid for the period specified on
it, and the conditions accepted upon its issuance remain in effect for
that period, unless the vessel is retired from the shark fishery or the
permit is revoked, suspended, or modified pursuant to subpart D of 15
CFR part 904.
(g) Display. A vessel permit issued pursuant to paragraphs
(a)(9)(iii) or (b) of this section must be carried on board the vessel,
and such vessel must be identified as required by Sec. 678.6. A dealer
permit issued pursuant to paragraph (c) of this section must be
available on the dealer's premises. The operator of a vessel or a
dealer must present the permit for inspection upon the request of an
authorized officer.
(h) Sanctions and denials. A permit issued pursuant to 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.
(i) Alteration. A permit that is altered, erased, or mutilated is
invalid.
(j) Replacement. A replacement permit may be issued. An application
for a replacement permit will not be considered a new application. A
fee, the amount of which is stated with the application form, must
accompany each request for a replacement permit.
(k) Change in application information. The owner or operator of a
vessel with a shark permit or a dealer with a permit must notify the
Regional Director within 30 days after any change in the application
information required by paragraphs (a), (b), or (c) of this section.
The permit is void if any change in the information is not reported
within 30 days.
* * * * *
4. In Sec. 678.7, paragraphs (b), (k) through (m), (p), (q), (x),
and (y) are revised to read as follows:
Sec. 678.7 Prohibitions.
* * * * *
(b) Fail to display a permit, as specified in Sec. 678.4(g).
* * * * *
(k) Remove the fins from a shark and discard the remainder, as
specified in Sec. 678.22(b)(1).
(l) Possess shark fins, carcasses, or parts, aboard or offload
shark fins from a fishing vessel, except as specified in Sec. 678.22,
or possess shark carcasses or parts aboard, or offload shark fins,
carcasses, or parts, from a vessel, except as specified in
Sec. 678.22(d).
(m) Fail to release a shark in the manner specified in
Sec. 678.22(c).
* * * * *
(p) Land or possess on any trip, shark in excess of the vessel trip
limit, as specified in Sec. 678.22(d).
(q) Transfer a shark at sea, as specified in Secs. 678.22(d)(3) and
678.23(e).
* * * * *
(x) Exceed the vessel trip limits, as specified in Sec. 678.22(d).
(y) Purchase, trade, or barter, or attempt to purchase, trade, or
barter, a shark from the management unit without an annual dealer
permit, as specified in Sec. 678.4(c).
* * * * *
5. Section 678.22 is revised to read as follows:
Sec. 678.22 Harvest Limitations.
(a) Limited access permit restrictions. (1) Only holders of valid
directed shark
[[Page 68208]]
permits issued pursuant to Sec. 678.4 may target and harvest sharks
under the specifications outlined in Secs. 678.20, 678.21, and 678.24
through 678.28.
(2) Only holders of valid incidental shark permits issued pursuant
to Sec. 678.4 may retain a maximum of four sharks (all species
combined) per vessel per day.
(b) Finning. (1) The practice of ``finning,'' that is, removing
only the fins and returning the remainder of the shark to the sea, is
prohibited in the EEZ or aboard a vessel that has been issued a permit
pursuant to Sec. 678.4.
(2) Shark fins that are possessed onboard or offloaded from a
fishing vessel must be in proper proportion to the weight of carcasses.
That is, the weight of fins may not exceed 5 percent of the weight of
the carcasses. All fins must be weighed in conjunction with the
weighing of the carcasses at the vessel's first point of landing and
such weights of the fins landed must be recorded on the weighout slips
submitted by the vessel owner or operator under Sec. 678.5(a).
(3) Shark fins may not be possessed onboard a fishing vessel after
the vessel's first point of landing.
(c) Release. A shark that is harvested in the EEZ or harvested by a
vessel that has been issued a permit pursuant to Sec. 678.4 that is not
retained--
(1) Must be released in a manner that will ensure maximum
probability of survival.
(2) If caught by hook and line, must be released by cutting the
line near the hook without removing the fish from the water.
(d) Vessel trip limits--(1) Directed permits. The owner or operator
of a vessel that has been issued a directed shark permit pursuant to
Sec. 678.4 may not possess on any trip, or land from any trip, large
coastal species in excess of 4,000 lb (1,814 kg), dressed weight.
(2) Incidental permits. The owner or operator of a vessel that has
been issued an incidental shark permit pursuant to Sec. 678.4 may not
possess on any trip, or land from any trip, in excess of four sharks
per day of all shark species combined. Vessel logbooks will be the sole
criterion used to determine dates of trip origin and termination for
each trip.
(3) Transfer at sea. A shark from any of the three management units
may not be transferred at sea from a vessel issued an Atlantic shark
permit issued under Sec. 678.4 to any other vessel.
6. In Sec. 678.26, paragraph (c) is revised to read as follows:
Sec. 678.26 Restrictions on sale upon landing.
* * * * *
(c) Fins from a shark harvested in the EEZ, or by the owner or
operator of a vessel that has been issued a permit under Sec. 678.4,
that are disproportionate to the weight of carcasses landed (see
Sec. 678.22(b)(2)) may not be sold, purchased, traded, or bartered or
attempted to be sold, purchased, traded, or bartered.
* * * * *
[FR Doc. 96-32891 Filed 12-20-96; 4:50 pm]
BILLING CODE 3510-22-W
