Atlantic Highly Migratory Species (HMS) Fishing Vessel Permits;
Charter Boat Operations
[Federal Register: April 26, 2002 (Volume 67, Number 81)]
[Proposed Rules]
[Page 20716-20722]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap02-32]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 020325069-2069-01; I.D. 071299C]
RIN 0648-AM91
Atlantic Highly Migratory Species (HMS) Fishing Vessel Permits;
Charter Boat Operations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: ACTION: Proposed rule; request for comments.
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SUMMARY: Under the framework provisions of the Fishery Management Plan
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), NMFS proposes to
amend the consolidated regulations governing the Atlantic HMS fisheries
to: define operations and regulations for HMS Charter/Headboats (CHBs),
require an Atlantic HMS recreational permit, adjust the time frame for
permit category changes for Atlantic HMS and Atlantic tunas permits,
clarify the regulations regarding the retention of Atlantic bluefin
tuna (BFT) in the Gulf of Mexico by recreational and HMS CHB vessels,
and allow NMFS to set differential BFT retention limits by vessel type
(e.g., charter boats, headboats). Additionally, NMFS is requesting
comments on, but not proposing at this time, an extension of the
existing condition on commercial HMS permits to require that permit
holders abide by more restrictive Federal regulations regardless of
whether fishing occurs within or beyond the exclusive economic zone
(EEZ).
Public hearings on this proposed rule will be held in May 2002 and
will be announced in a separate Federal Register document. Comments on
the proposed rule and supporting documents can be submitted by mail, by
fax, or electronically through the NMFS e-Comments pilot project web
site. In addition to comments on the proposed rule and supporting
documents, comments are also invited on the e-Comments pilot project.
DATES: Comments on the proposed rule and supporting documents must
reach NMFS on or before May 28, 2002. Comments sent to the Office of
Management and Budget (OMB) on collection of information must reach OMB
on or before May 28, 2002.
ADDRESSES: Please submit your comments on the proposed rule, supporting
documents, and the e-Comments pilot project by only one of the
following means; comments submitted via e-mail will not be accepted:
(1) By mail to Christopher Rogers, Chief, Highly Migratory Species
Management Division, Office of Sustainable Fisheries (F/SF1), NMFS,
1315 East-West Highway, Silver Spring, MD 20910-3282.
(2) By fax to Christopher Rogers at NMFS at 301-713-1917.
(3) Electronically through the NMFS e-Comments pilot project web
site at http://www.nmfs.noaa.gov 
Comments on the burden-hour estimates or other aspects of the
collection of information that are part of this rulemaking can be
submitted to NMFS but must also be mailed to the Office of Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503
(Attention: NOAA Desk Officer).
Copies of the supporting documents (see SUPPLEMENTARY INFORMATION)
are available by sending your request to the address and fax number
listed under (1) and (2), respectively, or by calling (301) 713-2347.
The supporting documents will also be posted on the e-comments website
listed under (3).
FOR FURTHER INFORMATION CONTACT: For questions on this proposed rule,
or on submitting public comments, call Brad McHale at (978) 281-9260.
SUPPLEMENTARY INFORMATION:
Background
On May 28, 1999, NMFS published the final rule (64 FR 29090) that
implemented the HMS FMP and Amendment One to the Atlantic Billfish FMP,
and that consolidated regulations for Atlantic HMS into one CFR part.
After issuance of the final HMS FMP and publication of the final
consolidated rule, NMFS received comment that several provisions of the
regulations were inconsistent with the HMS FMP. Additionally, several
commenters indicated that activities previously authorized under the
HMS regulations when issued under separate CFR parts were now
prohibited under the consolidated format of the regulations. NMFS
subsequently published a technical amendment to the final consolidated
regulations (64 FR 37700, July 13, 1999) to correct certain drafting
errors and omissions that were not consistent with the final HMS FMP.
However, addressing other more substantive issues raised about
omissions from, or corrections to, the consolidated regulations
requires a regulatory amendment under the framework provisions of the
HMS FMP and the amended Billfish FMP. NMFS issues this proposed rule to
solicit public comment on the merits and potential impacts of changes
to the regulations intended to address comments received on the
consolidated regulations, and to further the objectives of the HMS and
Billfish FMPs.
Charter/Headboat Operations
NMFS first required Charter/Headboat permits for Atlantic tunas
vessels in 1994. Given quota reductions and allocation issues in the
recreational BFT fisheries, it became necessary to improve inseason
monitoring of catch, particularly for school BFT. In response, NMFS
began issuing permits in order to develop a telephone dialing frame for
a fishing effort survey. Recognizing that charter vessels and headboats
tend to have higher effort rates than private recreational vessels and,
on average, higher catch rates, NMFS established a separate permit
category for the purposes of stratifying the two populations for the
telephone survey. Issuing separate permits for private and for-hire
vessels also facilitated the issuance of regulations tailored to the
unique aspects of each category (e.g., catch limits, sale of fish).
In developing the HMS FMP, the HMS Advisory Panel (AP) noted the
significance of the for-hire fleet in the recreational fisheries for
tunas, billfishes and sharks. The HMS AP recommended that NMFS expand
the CHB permit program from Atlantic tunas to include vessels targeting
any HMS so that catch and effort monitoring could be improved, and NMFS
adopted this permit requirement in the HMS FMP. With all HMS vessels
included in the permit system, NMFS can now select a more
representative sample of CHB vessels for the logbook program and
telephone survey.
The HMS Charter/Headboat permit is required in lieu of any other
commercial or recreational category tunas permit, and is considered a
commercial tunas permit because Atlantic tunas caught by persons aboard
vessels with this permit may be sold. Given this more restrictive
statement of the permit requirement (i.e., the HMS Charter/Headboat
permit
[[Page 20717]]
is the only permit authorized to embark fee-paying anglers), and the
dual nature of the permit (carrying fee-paying recreational anglers,
and also allowed to sell tunas), further clarifications to the
regulations pertaining to charter/headboat operations are needed
relative to sale of fish, applicability of retention limits and the
requirements for licensed captains.
As the retention limits applicable to the recreational fisheries
for HMS do not generally apply to persons aboard permitted commercial
fishing vessels, it is necessary to specify the circumstances under
which persons aboard a CHB vessel are subject to the recreational
retention limits for any HMS. These retention limits are directly
linked to how a for-hire trip on a CHB is defined. Such designation is
practical for BFT because the quota categories are related to size
classes of fish, thus the size of the fish itself determines authorized
catch limits and disposition (i.e., sold or retained for personal
consumption). However, in certain situations, the consolidated
regulations are not clear with respect to catch limits, size limits and
authorized disposition applicable to sharks and yellowfin tuna (YFT)
taken aboard vessels issued HMS Charter/Headboat permits.
In a technical amendment to the consolidated regulations, NMFS
clarified that the recreational retention limit of three YFT per person
per day applies at all times to persons fishing aboard vessels
permitted in the Atlantic tunas Charter/Headboat category, now the
Atlantic HMS Charter/Headboat permit. While the Atlantic HMS Charter/
Headboat permit is classified as a commercial tuna permit, and YFT
landed by persons aboard such vessels may be sold to permitted dealers,
the number of YFT landed cannot exceed three times the number of
persons aboard, including captain and crew.
Since the technical amendment was issued, NMFS has received comment
that applying the YFT retention limit at all times precludes legitimate
commercial activity when the vessels are not carrying fee-paying
anglers. These commenters have indicated that a few dozen charter
vessels in the Mid-Atlantic region have historically conducted
commercial fishing trips for YFT when not operating as a for-hire
vessel. Further, these commenters noted that the HMS FMP did not
specifically address commercial fishing by the for-hire fleet and its
supporting analyses did not consider the impacts of prohibiting such
commercial fishing on a part-time basis.
NMFS recognizes that certain vessels operating as charter vessels
and headboats by taking anglers fishing for HMS on a fee basis may, on
occasion, sell tunas taken by those anglers. Additionally, some of
these vessels may, when not operating as a CHB, directly engage in
commercial tuna fishing operations. Therefore, consistent with other
regulations issued under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson Stevens Act), NMFS proposes
to define a for-hire trip as a trip carrying a passenger who pays a fee
and/or having a specified number of persons aboard: More than three
persons for a vessel licensed to carry six or fewer; more than the
required number of crew for an inspected vessel. Therefore, these trips
would be considered for-hire recreational trips and recreational
retention limits would apply. Trips where a vessel carries three or
fewer passengers, or fewer that the required number of crew for an
inspected vessel, would be considered commercial and commercial
retention limits would apply. Under this proposal the recreational YFT
retention limit would apply to vessels issued an HMS Charter/Headboat
permit only when such vessels are engaged in a for-hire trip.
NMFS also proposes to authorize retention of sharks under the
recreational catch limits by persons aboard vessels issued limited
access permits for sharks after a closure of any shark management group
if the vessel has also been issued an HMS Charter/Headboat permit and
is engaged in a for-hire fishing trip. In such case, it would be
required that the recreational landing and size limits be observed,
that the sharks be landed in whole form, and that the sharks not be
sold. If the fisheries for all shark species groups are open, vessels
that possess a limited access permit for sharks and an HMS Charter/
Headboat permit would be subject to the recreational retention limits
for sharks when engaged in a for-hire fishing trip, but the shark(s)
may be sold.
On December 26, 2001, NMFS published proposed regulations to
establish a recreational retention limit for North Atlantic swordfish
(66 FR 66390). If a recreational retention for North Atlantic swordfish
were adopted, the application of the retention limit to vessels with
both swordfish Handgear and HMS CHB permits would be similar to those
vessel with shark limited access and HMS Charter/Headboat permits. Such
vessels would be subject to the recreational retention limits when
engaged in a for-hire fishing trip, and the North Atlantic swordfish
could be sold if the directed fishery quota were open, but could not be
sold if the directed fishery quota were closed. Directed and Incidental
swordfish limited access permits are only valid if the vessel also
possesses a valid Atlantic tunas Longline category permit, which means
that the vessel could not possess an Atlantic HMS Charter/Headboat
permit and could not be engaged in for-hire fishing.
Atlantic HMS Angling Vessel Permits
Current HMS regulations require that vessels fishing recreationally
for Atlantic tunas obtain an Atlantic Tunas Angling Category permit.
This proposed rule would extend the permit requirement to all
recreational vessels fishing for any HMS regulated under the HMS and
Billfish FMPs.
This proposed action would provide NMFS with a complete list of
recreational vessels participating in the fisheries for Atlantic HMS.
Knowing the universe of vessels participating in the recreational
fisheries for HMS would enable NMFS to monitor recreational landings
and catch and release statistics more accurately, thereby enhancing HMS
management and research efforts. The total universe of recreational
fishermen in the HMS fisheries, and their effort, catch and bycatch
(including discards) is presently unknown. Estimates of some of these
parameters are currently made using surveys, such as the Large Pelagic
Survey and the Marine Recreational Fisheries Statistics Survey, as well
as reporting from registered HMS tournaments. An HMS recreational
permit system would greatly improve information available to NMFS
regarding the recreational HMS fisheries by providing an accurate
measure of participation, effort, catch and bycatch (including
discards) from one of its most significant components.
A measure requiring permits for recreational HMS vessels would
increase the regulatory burden on recreational fishermen by requiring
that they participate in an annual permit process. However, the
regulatory burden for both anglers and NMFS should be significantly
reduced by incorporating the existing HMS recreational permitting
requirement (Angling category permit for Atlantic tunas) into the
expanded permit requirement. Many saltwater fishermen target more than
one HMS during a single trip or throughout the fishing season; for
example, some who target billfish also catch large pelagic species like
tuna and sharks.
The universe of affected anglers could include the following: The
nearly
[[Page 20718]]
13,000 vessels currently permitted in the Atlantic tunas Angling
(recreational) category, approximately 10,000 billfish anglers (minimum
estimate based on the number of billfish tournament anglers from Fisher
and Ditton, 1992), and vessels engaged solely in recreational shark or
swordfish fishing. The number of vessels associated with the 10,000
billfish anglers, as well as the extent of the overlap between billfish
vessels, recreational shark and swordfish vessels, and (already
permitted) tuna vessels is unknown, but the overlap is likely
significant. Thus, the universe of affected vessel owners is likely to
be smaller than the sum of the above estimates, as only one permit
would be required for participation in any HMS recreational fishery.
Annual permit issuance/renewal would not have a significant impact on
HMS anglers. The renewal process would be the same automated system
currently in effect for Atlantic tunas permits, reducing paperwork and
mailing time for forms.
Jurisdictional Issues Related to HMS Permits
Through prior rulemaking, NMFS has implemented a condition on shark
and swordfish permits that requires persons aboard permitted vessels to
adhere to Federal regulations without regard to whether fishing
activity occurs within or outside the EEZ (see 50 CFR 635.4(a)(1)).
Such a condition is deemed necessary to ensure that the management
objectives of the HMS FMP are met in recognition of the inherent
mobility of the fish species and the fishing vessels. The permit
condition was initially applied only to commercial fishing vessels
because recreational vessels were not required to be permitted in the
swordfish and shark fisheries. Additionally, although recreational tuna
permits have been required for some time, tuna regulations were
previously determined to be applicable outside the EEZ (i.e., the high
seas and waters under State jurisdiction) under the authority of ATCA,
thus not requiring a specific permit condition. Given that NMFS has
since implemented an Atlantic HMS vessel permit for the Charter/
Headboat category, and proposes in this rulemaking document that a
permit be required for private recreational vessels fishing for tunas,
swordfish, sharks or billfish, NMFS is considering the merits of
applying a permit condition to all Atlantic HMS vessel permits, in both
commercial and recreational categories. Such a condition would not
supersede more restrictive regulations in waters under the jurisdiction
of any State, but would help ensure that the activity of all vessels
issued Federal permits would conform to the requirements of the HMS and
Billfish FMPs throughout the range of the species in the respective
management units. NMFS requests comments from the public on the merits
and potential impacts of extending the permit condition across all HMS
fisheries.
BFT Fisheries in the Gulf of Mexico
In 1982, the International Commission for the Conservation of
Atlantic Tunas (ICCAT) recommended a ban on directed fishing for
bluefin tuna in the Gulf of Mexico to protect the spawning stock. This
action primarily impacted Japanese longline fishermen in the area, as
U.S. longline gear had already been prohibited from targeting bluefin
tuna in the Gulf of Mexico since 1981. NMFS issued additional
regulations in 1983 to subdivide the Incidental BFT quota for longline
fishermen, and to allow the retention of one giant BFT per year by
vessels using rod and reel gear (48 FR 27745, June 17, 1983). No other
handgear-caught BFT could be retained in the Gulf of Mexico, and the
one giant ``incidental'' rod and reel-caught BFT could not be sold. The
annual limit of one giant (large-medium or giant since 1992) BFT per
vessel for handgear vessels in the Gulf of Mexico is still in place,
and is now part of the BFT Angling category ``trophy'' quota.
The 1999 consolidation of the HMS regulations into one CFR part
resulted in the BFT Angling category retention limit regulations for
the Gulf of Mexico being unclear. NMFS has received comment that the
current regulations under Sec. 635.23(b) and (c) could be interpreted
to mean that in the Gulf of Mexico, Angling category vessels may retain
school, large-school, and small medium BFT subject to the retention
limits in place at the time, while CHBs may not. This rule would modify
the regulations to clarify that the only BFT that could be retained by
Angling category and CHB vessels in the Gulf of Mexico is one large
medium or giant BFT per vessel per year, caught incidentally while
fishing for other species.
Change of Tuna Permit Category
Current regulations allow Atlantic tunas permit holders to change
their vessel permit category only once per year, and that change must
occur before May 15. These regulations are meant to prevent vessels
from landing BFT in more than one quota category in a single fishing
year. Atlantic tunas and Atlantic HMS CHB permits can now be obtained
within minutes, 24 hours a day, 7 days a week, via the Internet.
Because of the instant availability, NMFS proposes to allow the one
permit category change to occur until the first day of the fishing
year, June 1. In addition, NMFS proposes to allow the one permit
category change to occur after June 1, so long as it occurs with the
renewal or initial application for the current fishing year. For
example, under current regulations, if a person purchased a vessel that
had permitted in the General category in previous years, the vessel
would have to remain in the General category if the new owner applied
for a permit after May 15. Under the proposed regulations, the new
owner could choose the appropriate permit or permit category at the
time of application, regardless of the time of year and in which
category the vessel was permitted the previous fishing year.
Adjustments to BFT Retention Limits by Vessel Type
Under the current HMS regulations, NMFS has the authority to adjust
the BFT retention limits during the fishing season to maximize
utilization of the quota for BFT. When vessels permitted in the HMS CHB
category are fishing under the Angling category BFT quota, the same
retention limits apply whether the vessel is operating as a charter
boat with one passenger, or a headboat carrying 30 passengers. With the
BFT retention limits generally defined in terms of the number of BFT
that can be retained per vessel, the current situation can be
inequitable for Coast Guard inspected vessels authorized to carry a
larger number of passengers, as their limit is set at the same amount
of BFT as a vessel with a charter of two to six anglers. Prior to the
1999 consolidation of the HMS regulations into one CFR part, the
Atlantic tunas regulations included explicit provisions for NMFS to set
differential retention limits by vessel type (e.g., charter boat vs.
headboat), but this explicit authority was (unintentionally) not
maintained in the consolidated regulations. This proposed rule would
modify the HMS regulation to clarify that NMFS has the authority to set
differential BFT retention limits by vessel type, so that NMFS could
adjust the retention limits to provide equitable fishing opportunities
for all fishing vessels, throughout the fishery.
E-Comments Pilot Project
NMFS encourages the public to participate in this proposed
rulemaking by submitting comments. To this end, NMFS is accepting
comments by submitted mail, fax, and the Internet as part of its e-
Comments pilot project (see ADDRESSES). The e-Comments pilot
[[Page 20719]]
project is designed to introduce electronic rulemaking to NMFS an its
constituents. The public is encouraged to use the new web site to
compose and submit comments on this proposed rule and the associated
supporting documents to help NMFS fully evaluate this new technology.
In submitting comments, please include your name and address, indicate
if you are commenting on the proposed rule or other rulemaking
documents, and give the reason for each comment. If you are commenting
on the proposed rule, indicate to which specific section each comment
applies. Comments on the burden-hour estimates or other aspects of the
collection of information that are part of this rulemaking can be
submitted to NMFS but must also be mailed to OMB (see ADDRESSES). NMFS
also invites public comments on the e-Comments program that allows you
to submit your comments on line. Copies of the supporting documents
including the HMS FMP, the final regulations to implement the HMS FMP
(64 FR 29090, May 28, 1999), the technical amendment to the final
regulations (64 FR 37700, July 13, 1999), and the latest Stock
Assessment and Fishery Evaluation Report are available by request (see
ADDRESSES) or on-line at http://www.nmfs.noaa.gov. NMFS will consider
all comments received during the comment period, regardless of how they
were submitted, and NMFS may make changes in the final rule in
consideration of them. Please submit your comments by only one means.
Comments received from the public will become part of the public record
and will be posted on the e-Comments web site after the comment period
closes.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the Atlantic Tunas
Convention Act, 16 U.S.C. 971 et seq. The Assistant Administrator (AA)
for Fisheries, NOAA, has preliminarily determined that the regulations
contained in this proposed rule are necessary to implement the
recommendations of ICCAT and are necessary for management of the
Atlantic HMS fisheries.
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that the proposed regulations, if implemented, would not
have a significant economic impact on a substantial number of small
entities as follows:
The proposed action would amend the HMS regulations to clarify
regulations regarding the sale of fish and applicability of daily
catch limits on board vessels permitted in the HMS charter/Headboat
(CHB) permit category. This proposed rule would also implement an
Atlantic HMS recreational vessel permit, adjust the time frame for
permit category changes for Atlantic HMS and Atlantic tunas permits,
clarify the regulations regarding the retention of Atlantic bluefin
tuna (BFT) in the Gulf of Mexico by recreational and HMS CHB vessels
and allow NMFS to adjust BFT retention limits by vessel type. NMFS
conducted a preliminary economic evaluation of the proposed
measures, and, because the proposed measures would allow increased
landings of YFT, revenues for the commercial handgear yellowfin tuna
(YFT) fishery would increase slightly (3.6 percent). The proposed
measures would not negatively affect the revenues of any small
entities in the fishery, and the measures would not alter current
fishing practices. Additionally, NMFS is requesting comments on, but
not proposing at this time, an extension of the existing condition
on commercial swordfish and shark permits to include other Atlantic
HMS permits. The condition requires that permit holders abide by
more restrictive Federal regulations regardless of whether fishing
occurs within or beyond the EEZ. NMFS requests comment primarily to
gauge the potential impacts on fishing activity in waters under
State jurisdiction where regulated Atlantic HMS occasionally do
occur. As NMFS is only requesting comment at this time, there is no
direct impact on fishery participants. Comments will assist NMFS in
assessing impacts under the Regulatory Flexibility Act when and if
such a permit condition is proposed.
Because of this certification, an Initial Regulatory Flexibility
Analysis was not prepared.
NMFS prepared a draft Environmental Assessment (EA) for this
proposed rule, and the AA has preliminarily concluded that there would
be no significant impact on the human environment. The EA presents
analyses of the anticipated impacts of these proposed regulations and
the other alternatives considered. A copy of the EA and other
analytical documents prepared for this proposed rule are available from
NMFS (see ADDRESSES).
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
On September 7, 2000, NMFS reinitiated formal consultation for all
HMS commercial fisheries under section 7 of the Endangered Species Act.
A Biological Opinion (BiOp) issued June 14, 2001, concluded that
continued operation of the Atlantic pelagic longline fishery is likely
to jeopardize the continued existence of endangered and threatened sea
turtle species under NMFS jurisdiction. NMFS is currently implementing
the reasonable and prudent alternative required by the BiOp. None of
the actions in this proposed rule would have any additional impact on
sea turtles as these actions would not likely increase or decrease
pelagic longline effort, nor are they expected to shift effort into
other fishing areas. No irreversible or irretrievable commitments of
resources are expected from this proposed action that would have the
effect of foreclosing the implementation of the requirements of the
BiOp.
This proposed rule contains two new collection-of-information
requirements and restates several existing reporting requirements
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). The new requirements
have been submitted to OMB for approval.
The new requirement that has been submitted to OMB for approval is
an extension of the Atlantic tunas recreational Angling category permit
requirement to include fishermen who fish for all Atlantic HMS,
including swordfish, sharks, and billfish, with an estimated public
reporting burden of 30 minutes per response for initial permit
applications, and 5 minutes per response for renewing the permit.
Persons acquiring this permit who were not previously subject to a
permit requirement may also be subject to existing gear-marking
requirements. The extension of this requirement, estimated to take 15
minutes per float marked, has also been submitted to OMB for approval.
Notwithstanding any other provision of the law, no person is required
to respond to, nor shall any person be subject to, a penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number. This proposed rule also restates
a number of collection-of-information requirements that have been
approved by OMB. These requirements and their OMB control numbers and
estimated response times are: vessel permits for Atlantic tunas and
Atlantic HMS Charter/headboats, initial (30 minutes; 0648-0327) and
renewal (6 minutes; 0648-327); vessel permits for Atlantic shark and
swordfish (20 minutes; 0648-0205); dealer permits for Atlantic sharks
and swordfish (5 minutes; 0648-0205); call in recreational landing
reports for Atlantic bluefin tuna (5 minutes; 0648-0328); dealer
permits for Atlantic tunas (5 minutes; 0648-0202); gear marking (15
minutes; 0648-0373); and vessel marking (45 minutes; 0648-0373).
[[Page 20720]]
All estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Public comment is sought regarding: (1) the need for the proposed
collection of information for the proper performance of the functions
of the agency, including the practical utility of the information; (2)
the accuracy of the burden estimate; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; and (4) ways
to minimize the burden of the collection of information, including
through the use of automated collection techniques or other forms of
information technology. Send comments on these or any other aspects of
the collection of information to NMFS and to OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated: April 23, 2002.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 635, is
proposed to be amended as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
1. The authority citation for part 635 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
2. In Sec. 635.2, the definition for ``For-hire trip'' is added, in
alphabetical order, to read as follows:
Sec. 635.2 Definitions.
* * * * *
For-hire trip means a recreational fishing trip taken by a vessel
with an Atlantic HMS Charter/Headboat permit during which paying
passenger(s) are aboard; or, for uninspected vessels, during which
there are more than three persons on board, including operator and
crew; or, for vessels that have been issued a Certificate of Inspection
by the U.S. Coast Guard to carry passengers for hire, during which
there are more persons aboard than the number of crew specified on the
vessel's Certificate of Inspection.
* * * * *
3. In Sec. 635.4, paragraphs (a)(2), (a)(5), (b), (d) heading,
(d)(1) through (d)(3), (h)(1) heading, and (m)(1) are revised to read
as follows:
Sec. 635.4 Permits and fees.
* * * * *
(a) * * *
(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 HMS when engaged
in recreational fishing, and to fish for, take, retain or possess
Atlantic tunas, swordfish, or sharks when engaged in commercial
fishing. The vessel operator must make such permit available for
inspection upon request by NMFS or 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.
* * * * *
(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 HMS Charter/Headboat permit, or Atlantic tunas,
shark, or swordfish permit to the receiving dealer. The permit must be
presented prior to completing any applicable landing report specified
at Sec. 635.5(a)(1), (a)(2) and (b)(2)(i).
* * * * *
(b) HMS Angling Category and Charter/Headboat Permits--(1) HMS
Angling Category permits. The owner of each vessel used to fish
recreationally for Atlantic HMS or on which Atlantic HMS are retained
or possessed, must obtain, in addition to any other required permits,
an HMS Angling permit. Atlantic HMS caught, retained, possessed, or
landed by persons on board vessels with an Atlantic HMS Angling permit
may not be sold or transferred to any person for a commercial purpose.
A vessel issued an Atlantic HMS Angling permit, during such permit's
period of validity, shall not be issued an Atlantic tunas permit in any
other category.
(2) HMS Charter/Headboat Category permits. (i) The owner of a
charter boat or headboat used to fish for, take, retain, or possess any
Atlantic HMS must obtain an HMS Charter/Headboat permit. A vessel
issued an Atlantic HMS Charter/Headboat permit, during such permit's
period of validity, shall not be issued an Atlantic tunas permit in any
category.
(ii) 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.
* * * * *
(d)Atlantic tunas, Atlantic HMS Angling, and Atlantic HMS Charter/
Headboat 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, an
HMS Angling or HMS Charter/Headboat permit issued under paragraph (b)
of this section, or an Atlantic tunas permit in one, and only one, of
the following categories: General, Harpoon, Longline, Purse Seine, or
Trap.
(2) Persons aboard a vessel with a valid Atlantic tunas, HMS
Angling, or HMS Charter/Headboat permit may fish for, take, retain, or
possess Atlantic tunas, but only in compliance with the quotas, catch
limits, size classes, and gear applicable to the permit category of the
vessel from which he or she is fishing. Persons may sell Atlantic tunas
only if the harvesting vessel has a valid permit in the General,
Harpoon, Longline, Purse Seine, or Trap category of the Atlantic tunas
permit or a valid HMS Charter/Headboat permit. Persons may not sell
Atlantic tunas caught on board a vessel issued an Atlantic HMS Angling
permit.
(3) Except for vessels with an Atlantic tunas purse seine category
permit, a vessel owner may change the category of the vessel's Atlantic
tunas permit, change between an Atlantic HMS Angling or HMS Charter/
Headboat permit, or change between an Atlantic tunas permit and an
Atlantic HMS Angling or HMS Charter/Headboat permit no more than once
each year and only from April 1 to May 31. At all other times, the
vessel's permit or permit category may not be changed, regardless of a
change in the vessel's ownership. A vessel's permit or permit category
change will be allowed outside of April 1 to May 31 if it occurs in
conjunction with the permit renewal.
* * * * *
(h) * * *
(1)Atlantic tunas, Atlantic HMS Angling, and Atlantic HMS Charter/
Headboat vessel permits. * * *
* * * * *
(m) Renewal--(l) General. Persons must apply annually for a dealer
permit for Atlantic tunas, sharks, and swordfish, and for an Atlantic
HMS
[[Page 20721]]
Angling, HMS Charter/Headboat, tunas, shark, or swordfish 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 and ATCA have been submitted, including
those described in Sec. 635.5, and the applicant is not subject to a
permit sanction or denial under paragraph (a)(6) of this section.
* * * * *
4. In Sec. 635.5, the first sentence of paragraph (c) is revised to
read as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(c) Anglers. The owner of a vessel permitted in the Atlantic HMS
Angling or 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 within 24 hours of the
landing. * * *
* * * * *
5. In Sec. 635.6, paragraph (b)(1) introductory text, and paragraph
(c)(1) are revised to read as follows:
Sec. 635.6 Vessel and gear identification.
* * * * *
(b) Vessel identification. (1) An owner or operator of a vessel for
which a permit has been issued under Sec. 635.4, other than an Atlantic
HMS Angling permit, must display the vessel number --
* * * * *
(c) Gear identification. (1) The owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 and that uses a
handline, harpoon, longline, or gillnet, must display the vessel's
name, registration number or Atlantic tunas, HMS Angling, or HMS
Charter/Headboat permit number on each float attached to a handline or
harpoon and on the terminal floats and high-flyers (if applicable) on a
longline or gillnet used by the vessel.
* * * * *
6. In Sec. 635.22, paragraphs (a), (c), and (d) are revised to read
as follows:
Sec. 635.22 Recreational retention limits.
(a) General. Atlantic HMS caught, possessed, retained, or landed
under these recreational retention limits may not sold or transferred
to any person for a commercial purpose. Recreational retention limits
apply to a longbill spearfish taken or possessed shoreward of the outer
boundary of the Atlantic EEZ, to a shark taken from or possessed in the
Atlantic EEZ, and to a yellowfin tuna taken from or possessed in the
Atlantic Ocean. The operator of a vessel for which a retention limit
applies is responsible for the vessel retention limit and the
cumulative retention limit based on the number of persons aboard.
Federal recreational retention limits may not be combined with any
recreational retention limit applicable in state waters.
* * * * *
(c) Sharks. One shark from either the large coastal, small coastal
or pelagic group may be retained per vessel per trip, subject to the
size limits described in Sec. 635.20(e), and, in addition, one Atlantic
sharpnose shark may be retained per person per trip. Regardless of the
length of a trip, no more than one Atlantic sharpnose shark per person
may be possessed on board a vessel. No prohibited sharks listed in
Table 1(d) of Appendix A to this part may be retained. The recreational
retention limit for sharks applies to a person who fishes in any
manner, except to a person aboard a vessel who has been issued an
Atlantic shark permit under Sec. 635.4. If an Atlantic shark quota is
closed, the recreational retention limit for sharks also applies to
persons aboard a vessel issued an Atlantic shark permit under
Sec. 635.4, if that vessel also possesses an Atlantic HMS Charter/
Headboat permit issued under Sec. 635.4 and is engaged in a for-hire
trip.
(d) Yellowfin tuna. Three yellowfin tunas per person per day may be
retained. Regardless of the length of a trip, no more than three
yellowfin tuna per person may be possessed on board a vessel. The
recreational retention limit for yellowfin tuna applies to a person who
fishes in any manner, except to a person aboard a vessel that has been
issued an Atlantic tunas vessel permit under Sec. 635.4. The
recreational retention limit for yellowfin tuna applies to persons
aboard a vessel that has been issued an Atlantic HMS Charter/Headboat
permit only when the vessel is engaged in a for-hire trip.
* * * * *
7. In Sec. 635.23, paragraphs (b) introductory text, (b)(2),
(b)(3), (c) introductory text, and (c)(3) are revised to read as
follows:
Sec. 635.23 Retention limits for BFT.
* * * * *
(b) Angling category. BFT may be retained and landed under the
daily limits and quotas applicable to the Angling category by persons
aboard vessels with Atlantic HMS Angling permits as follows:
* * * * *
(2) School, large school, or small medium BFT. (i) No school, large
school, or small medium BFT may be retained, possessed, landed, or sold
in the Gulf of Mexico.
(ii) One school, large school, or small medium BFT per vessel per
day may be retained, possessed, or landed outside the Gulf of Mexico.
Regardless of the length of a trip, no more than a single day's
allowable catch of school, large school, or small medium BFT may be
possessed or retained.
(3) Changes to retention limits. To provide for maximum utilization
of the quota for BFT spread over the longest period of time, NMFS may
increase or decrease the retention limit for any size class BFT or
change a vessel trip limit to an angler limit and vice versa. Such
increase or decrease will be based on a review of daily landing trends,
availability of the species on the fishing grounds, and any other
relevant factors. NMFS may also set a separate retention limit for
persons aboard a specific vessel type, such as headboats or charter
boats, fishing under the Angling category quota. NMFS will adjust the
daily retention limit specified in paragraph (b)(2) of this section by
filing with the Office of the Federal Register for publication
notification of the adjustment. Such adjustment will not be effective
until at least 3 calendar days after notification is filed with the
Office of the Federal Register for publication.
(c) HMS Charter/Headboat. Persons aboard a vessels with an Atlantic
HMS Charter/Headboat permit may retain and land BFT under the daily
limits and quotas applicable to the Angling category or the General
category as follows:
* * * * *
(3) When fishing other than in the Gulf of Mexico and when the
fishery under the General category has not been closed under
Sec. 635.28, a person aboard a vessel that has an Atlantic HMS Charter/
Headboat permit may fish under either the retention limits applicable
to the General category specified in paragraphs (a)(2) and (a)(3) of
this section or the retention limits applicable to the Angling category
specified in paragraphs (b)(2) and (b)(3) of this section. The size
category of the first BFT retained will determine the fishing category
applicable to the vessel that day.
* * * * *
8. In Sec. 635.27, the first three sentences of paragraph (a)
introductory text, the
[[Page 20722]]
first two sentences of paragraph (a)(1)(i), and the first sentence of
paragraph (a)(2) are revised to read as follows:
Sec. 635.27 Quotas.
(a) BFT. Consistent with ICCAT recommendations, NMFS will subtract
any allowance for dead discards from the fishing year's total U.S.
quota for BFT that can be caught and allocate the remainder to be
retained, possessed, or landed by persons and vessels subject to U.S.
jurisdiction. The total landing quota will be divided among the
General, Angling, Harpoon, Purse Seine, Longline, and Trap categories.
Consistent with these allocations and other applicable restrictions of
this part, BFT may be taken by persons aboard vessels issued Atlantic
tunas permits, HMS Angling permits, or HMS Charter/Headboat permits. *
* *
(1) * * *
(i) Catches from vessels for which General category Atlantic tunas
permits have been issued and certain catches from vessels for which an
HMS Charter/Headboat permit has been issued are counted against the
General category landings quota. See Sec. 635.23 (c)(3) regarding
landings by vessels with an HMS Charter/Headboat permit that are
counted against the General category landings quota. * * *
(2)Angling category landings quota. The total amount of BFT that
may be caught, retained, possessed, and landed by anglers aboard
vessels for which an HMS Angling permit or an HMS Charter/Headboat
permit has been issued is 19.7 percent of the overall annual U.S. BFT
landings quota. * * *
* * * * *
9. In Sec. 635.28, paragraph (b)(3) is revised to read as follows:
Sec. 635.28 Closures.
* * * * *
(b) * * *
(3) When the fishery for a shark species group is closed, a fishing
vessel issued a shark LAP pursuant to Sec. 635.4 may not possess or
sell a shark of that species group, except under the conditions in
Sec. 635.22 (a) and (c), and a permitted shark dealer may not purchase
or receive a shark of that species group from a vessel issued a shark
LAP, except that a permitted shark dealer or processor may possess
sharks that were harvested, off-loaded, and sold, traded, or bartered,
prior to the effective date of the closure and were held in storage.
* * * * *
10. In Sec. 635.31, paragraph (a)(1) is revised to read as follows:
Sec. 635.31 Restrictions on sale and purchase.
(a) Atlantic tunas. (1) Persons that own or operate a vessel from
which an Atlantic tuna is landed may sell such Atlantic tuna only if
that vessel has a valid Atlantic HMS 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 Atlantic HMS Charter/
Headboat permit fishing in the Gulf of Mexico at any time, or fishing
outside the Gulf of Mexico when the fishery under the General category
has been 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.
* * * * *
11. In Sec. 635.71, paragraphs (b)(1), (b)(3), (b)(14), and
(b)(15), are revised to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(b) * * *
(1) Engage in fishing with a vessel that has a permit to fish for
Atlantic tunas under Sec. 635.4, unless the vessel travels to and from
the area where it will be fishing under its own power and the person
operating that vessel brings any BFT under control (secured to the
catching vessel, and, if the case, brought on board) with no assistance
from another vessel, except as shown by the operator that the safety of
the vessel or its crew was jeopardized or other circumstances existed
that were beyond the control of the operator.
* * * * *
(3) Fish for, catch, retain, or possess a BFT less than the large
medium size class by a vessel other than one that has on board an
Atlantic HMS Angling permit, an HMS Charter/Headboat permit, or an
Atlantic tunas Purse Seine category permit as authorized under
Sec. 635.23 (b), (c), and (e)(2).
* * * * *
(14) As a vessel with an Atlantic HMS Angling permit or an HMS
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 Atlantic HMS Angling permit or an HMS
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).
* * * * *
[FR Doc. 02-10341 Filed 4-23-02; 4:12 pm]
BILLING CODE 3510-22-S
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