[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2000 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
50
Part 600 to End
Revised as of October 1, 2000
Wildlife and Fisheries
Containing a Codification of documents
of general applicability and future effect
As of October 1, 2000
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
As a Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter VI--Fishery Conservation and Management,
National Oceanic and Atmospheric Administration,
Department of Commerce 3
Finding Aids:
Material Approved for Incorporation by Reference........ 779
Table of CFR Titles and Chapters........................ 781
Alphabetical List of Agencies Appearing in the CFR...... 799
List of CFR Sections Affected........................... 809
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 600.5 refers
to title 50, part 600,
section 5.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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citations for the regulations are referred to by volume number and page
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
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site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2000.
[[Page ix]]
THIS TITLE
Title 50--Fish and Wildlife is composed of three volumes. The parts
in these volumes are arranged in the following order: Parts 1-199, parts
200-599 and part 600 to end. The first volume (parts 1-199) contains the
current regulations issued under chapter I--United States Fish and
Wildlife Service, Department of the Interior. The second volume (parts
200-599) contains the current regulations issued under chapter II--
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; chapter III--International
Fishing and Related Activities, chapter IV--Joint Regulations (United
States Fish and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered Species Committee
regulations; and chapter V--Marine Mammal Commission. The third volume
(part 600 to end) contains the current regulations issued under chapter
VI--Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2000.
Alphabetical listings of endangered and threatened wildlife and
plants appear in part 17.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Carol A. Conroy was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains part 600 to end)
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Part
chapter vi--Fishery Conservation and Management, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 600
Cross References: Commercial fishing on Red Lake Indian Reservation,
Bureau of Indian Affairs: 25 CFR part 242.
Disposal of certain wild animals in national parks, National Park
Service: 36 CFR part 10.
Exchanges of land for migratory bird or other wildlife refuges, Bureau
of Land Management: 43 CFR part 2200.0-1--2272.1.
Fishing, hunting, trapping, and protection of wildlife in national
forests and wildlife refuges, Forest Service: 36 CFR part 241,
Secs. 261.8, 261.9.
Fishing, hunting, trapping, and protection of wildlife in national
parks, memorials, recreation areas, etc., National Park Service: 36 CFR
parts 2, 7, 20.
Fishing and hunting in reservoir areas, Corps of Engineers: 36 CFR
part 327.8.
Free entry of animals, birds and products of American fisheries under
specified conditions, Customs Service: 19 CFR part 10.70--10.83.
Grazing areas for wildlife maintenance, Bureau of Land Management: 43
CFR part 4110.
Making pictures, television production, or sound tracks on areas
administered by the United States Fish and Wildlife Service or the
National Park Service: 43 CFR part 5.1.
[[Page 3]]
CHAPTER VI--FISHERY CONSERVATION AND MANAGEMENT, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION,
DEPARTMENT OF COMMERCE
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Part Page
600 Magnuson-Stevens Act provisions............. 5
622 Fisheries of the Caribbean, Gulf, and South
Atlantic................................ 130
635 Atlantic highly migratory species........... 207
640 Spiny lobster fishery of the Gulf of Mexico
and South Atlantic...................... 251
644 [Reserved]
648 Fisheries of the Northeastern United States. 261
654 Stone crab fishery of the Gulf of Mexico.... 413
660 Fisheries off West coast states and in the
Western Pacific......................... 422
679 Fisheries of the Exclusive Economic Zone off
Alaska.................................. 511
697 Atlantic coastal fisheries cooperative
management.............................. 752
[[Page 5]]
PART 600--MAGNUSON-STEVENS ACT PROVISIONS--Table of Contents
Subpart A--General
Sec.
600.5 Purpose and scope.
600.10 Definitions.
600.15 Other acronyms.
Subpart B--Regional Fishery Management Councils
600.105 Intercouncil boundaries.
600.110 Intercouncil fisheries.
600.115 Statement of organization, practices, and procedures (SOPP).
600.120 Employment practices.
600.125 Budgeting, funding, and accounting.
600.130 Protection of confidentiality of statistics.
Subpart C--Council Membership
600.205 Principal state officials and their designees.
600.210 Terms of Council members.
600.215 Council nomination and appointment procedures.
600.220 Oath of office.
600.225 Rules of conduct.
600.230 Removal.
600.235 Financial disclosure.
600.240 Security assurances.
600.245 Council member compensation.
Subpart D--National Standards
600.305 General.
600.310 National Standard 1--Optimum Yield.
600.315 National Standard 2--Scientific Information.
600.320 National Standard 3--Management Units.
600.325 National Standard 4--Allocations.
600.330 National Standard 5--Efficiency.
600.335 National Standard 6--Variations and Contingencies.
600.340 National Standard 7--Costs and Benefits.
600.345 National Standard 8--Communities.
600.350 National Standard 9--Bycatch.
600.355 National Standard 10--Safety of Life at Sea.
Subpart E--Confidentiality of Statistics
600.405 Types of statistics covered.
600.410 Collection and maintenance of statistics.
600.415 Access to statistics.
600.420 Control system.
600.425 Release of statistics.
Subpart F--Foreign Fishing
600.501 Vessel permits.
600.502 Vessel reports.
600.503 Vessel and gear identification.
600.504 Facilitation of enforcement.
600.505 Prohibitions.
600.506 Observers.
600.507 Recordkeeping.
600.508 Fishing operations.
600.509 Prohibited species.
600.510 Gear avoidance and disposal.
600.511 Fishery closure procedures.
600.512 Scientific research.
600.513 Recreational fishing.
600.514 Relation to other laws.
600.515 Interpretation of 16 U.S.C. 1857(4).
600.516 Total allowable level of foreign fishing (TALFF).
600.517 Allocations.
600.518 Fee schedule for foreign fishing.
600.520 Northwest Atlantic Ocean fishery.
600.525 Atlantic herring fishery.
Subpart G--Preemption of State Authority Under Section 306(b)
600.605 General policy.
600.610 Factual findings for Federal preemption.
600.615 Commencement of proceedings.
600.620 Rules pertaining to the hearing.
600.625 Secretary's decision.
600.630 Application for reinstatement of state authority.
Subpart H--General Provisions for Domestic Fisheries
600.705 Relation to other laws.
600.710 Permits.
600.715 Recordkeeping and reporting.
600.720 Vessel and gear identification.
600.725 General prohibitions.
600.730 Facilitation of enforcement.
600.735 Penalties.
600.740 Enforcement policy.
600.745 Scientific research activity, exempted fishing, and exempted
educational activity.
600.746 Observers.
600.747 Guidelines and procedures for determining new fisheries and
gear.
Subpart I--Fishery Negotiation Panels
600.750 Definitions.
600.751 Determination of need for a fishery negotiation panel.
600.752 Use of conveners and facilitators.
600.753 Notice of intent to establish a fishery negotiation panel.
600.754 Decision to establish a fishery negotiation panel.
600.755 Establishment of a fishery negotiation panel.
600.756 Conduct and operation of a fishery negotiation panel.
600.757 Operational protocols.
600.758 Preparation of report.
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600.759 Use of report.
600.760 Fishery Negotiation Panel lifetime.
Subpart J--Essential Fish Habitat (EFH)
600.805 Purpose and scope.
600.810 Definitions and word usage.
600.815 Contents of Fishery Management Plans.
Subpart K--EFH Coordination, Consultation, and Recommendations
600.905 Purpose, scope, and NMFS/Council cooperation.
600.910 Definitions and word usage.
600.915 Coordination for the conservation and enhancement of EFH.
600.920 Federal agency consultation with the Secretary.
600.925 NMFS EFH conservation recommendations to Federal and state
agencies.
600.930 Council comments and recommendations to Federal and state
agencies.
Subpart L--Fishing Capacity Reduction
600.1000 Definitions.
600.1001 Requests.
600.1002 General requirements.
600.1003 Content of a request for a financed program.
600.1004 Accepting a request for, and determinations about initiating,
a financed program.
600.1005 Content of a request for a subsidized program.
600.1006 Accepting a request for, and determinations about conducting,
a subsidized program.
600.1007 Reduction amendments.
600.1008 Implementation plan and implementation regulations.
600.1009 Bids.
600.1010 Referenda.
600.1011 Reduction methods and other conditions.
600.1012 Reduction loan.
600.1013 Fee payment and collection.
600.1014 Fee collection deposits, disbursements, records, and reports.
600.1015 Late charges.
600.1016 Enforcement.
600.1017 Prohibitions and penalties.
600.1018 Implementation regulations for each program. [Reserved]
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
Source: 61 FR 32540, June 24, 1996, unless otherwise noted.
Subpart A--General
Sec. 600.5 Purpose and scope.
(a) This part contains general provisions governing the operation of
the eight Regional Fishery Management Councils established by the
Magnuson-Stevens Act and describes the Secretary's role and
responsibilities under the Act. The Councils are institutions created by
Federal law and must conform to the uniform standards established by the
Secretary in this part.
(b) This part also governs all foreign fishing under the Magnuson-
Stevens Act, prescribes procedures for the conduct of preemption
hearings under section 306(b) of the Magnuson-Stevens Act, and collects
the general provisions common to all domestic fisheries governed by this
chapter.
(c) This part also governs fishing capacity reduction programs under
the Magnuson-Stevens Act.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 65
FR 31443, May 18, 2000]
Sec. 600.10 Definitions.
Unless defined otherwise in other parts of Chapter VI, the terms in
this chapter have the following meanings:
Administrator means the Administrator of NOAA (Under Secretary of
Commerce for Oceans and Atmosphere) or a designee.
Advisory group means a Scientific and Statistical Committee (SSC),
Fishing Industry Advisory Committee (FIAC), or Advisory Panel (AP)
established by a Council under the Magnuson-Stevens Act.
Agent, for the purpose of foreign fishing (subpart F), means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner and/or operator of a vessel operating under a
permit and of any other vessel of that Nation fishing subject to the
jurisdiction of the United States. Any diplomatic official accepting
such an appointment as designated agent waives diplomatic or other
immunity in connection with such process.
Aggregate or summary form means confidential data structured in such
a way
[[Page 7]]
that the identity of the submitter cannot be determined either from the
present release of the data or in combination with other releases.
Albacore means the species Thunnus alalunga, or a part thereof.
Allocated species means any species or species group allocated to a
foreign nation under Sec. 600.517 for catching by vessels of that
Nation.
Allocation means direct and deliberate distribution of the
opportunity to participate in a fishery among identifiable, discrete
user groups or individuals.
Allowable chemical means a substance, generally used to immobilize
marine life so it can be captured alive, that, when introduced into the
water, does not take Gulf and South Atlantic prohibited coral (as
defined at 50 CFR 622.2) and is allowed by Florida or Hawaii or the U.S.
Pacific Insular Area for the harvest of tropical fish.
Anadromous species means species of fish that spawn in fresh or
estuarine waters of the United States and that migrate to ocean waters.
Angling means fishing for, attempting to fish for, catching or
attempting to catch fish by any person (angler) with a hook attached to
a line that is hand-held or by rod and reel made for this purpose.
Area of custody means any vessel, building, vehicle, live car,
pound, pier or dock facility where fish might be found.
Assistant Administrator means the Assistant Administrator for
Fisheries, NOAA, or a designee.
Atlantic tunas means bluefin, albacore, bigeye, skipjack, and
yellowfin tunas found in the Atlantic Ocean.
Atlantic Tunas Convention Act means the Atlantic Tunas Convention
Act of 1975, 16 U.S.C. 971-971h.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary and the
Commandant of the USCG to enforce the provisions of the Magnuson-Stevens
Act or any other statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Authorized species means any species or species group that a foreign
vessel is authorized to retain in a joint venture by a permit issued
under Activity Code 4 as described by Sec. 600.501(c).
Bandit gear means vertical hook and line gear with rods that are
attached to the vessel when in use. Lines are retrieved by manual,
electric, or hydraulic reels.
Barrier net means a small-mesh net used to capture coral reef or
coastal pelagic fishes.
Bigeye tuna means the species Thunnus obesus, or a part thereof.
Billfish means blue marlin, longbill spearfish, sailfish, or white
marlin.
Bluefin tuna means the species Thunnus thynnus, or a part thereof.
Blue marlin means the species Makaira nigricans, or a part thereof.
Bully net means a circular frame attached at right angles to a pole
and supporting a conical bag of webbing.
Buoy gear means fishing gear consisting of a float and one or more
lines suspended therefrom. A hook or hooks are on the lines at or near
the end. The float and line(s) drift freely and are retrieved
periodically to remove catch and rebait hooks.
Carcass means a fish in whole condition or that portion of a fish
that has been gilled and/or gutted and the head and some or all fins
have been removed, but that is otherwise in whole condition.
Cast net means a circular net with weights attached to the
perimeter.
Catch limit means the total allowable harvest or take from a single
fishing trip or day, as defined in this section.
Catch, take, or harvest includes, but is not limited to, any
activity that results in killing any fish or bringing any live fish on
board a vessel.
Center means one of the five NMFS Fisheries Science Centers.
Charter boat means a vessel less than 100 gross tons (90.8 mt) that
meets the requirements of the U.S. Coast Guard to carry six or fewer
passengers for hire.
Coast Guard Commander means one of the commanding officers of the
Coast
[[Page 8]]
Guard units specified in Table 1 of Sec. 600.502, or a designee.
Codend means the terminal, closed end of a trawl net.
Confidential statistics are those submitted as a requirement of an
FMP and that reveal the business or identity of the submitter.
Continental shelf fishery resources means the species listed under
section 3(7) of the Magnuson-Stevens Act.
Council means one of the eight Regional Fishery Management Councils
established by the Magnuson-Stevens Act.
Data, statistics, and information are used interchangeably.
Dealer means the person who first receives fish by way of purchase,
barter, or trade.
Designated representative means the person appointed by a foreign
nation and maintained within the United States who is responsible for
transmitting information to and submitting reports from vessels of that
Nation and establishing observer transfer arrangements for vessels in
both directed and joint venture activities.
Dip net means a small mesh bag, sometimes attached to a handle,
shaped and framed in various ways. It is operated by hand or partially
by mechanical power to capture the fish.
Directed fishing, for the purpose of foreign fishing (subpart F),
means any fishing by the vessels of a foreign nation for allocations of
fish granted that Nation under Sec. 600.517.
Director means the Director of the Office of Sustainable Fisheries,
1315 East-West Highway, Silver Spring, MD 20910.
Discard means to release or return fish to the sea, whether or not
such fish are brought fully on board a fishing vessel.
Dredge means a gear consisting of a mouth frame attached to a
holding bag constructed of metal rings or mesh.
Drop net means a small, usually circular net with weight around the
perimeter and a float in the center.
Essential fish habitat (EFH) means those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to
maturity. For the purpose of interpreting the definition of essential
fish habitat: Waters include aquatic areas and their associated
physical, chemical, and biological properties that are used by fish and
may include aquatic areas historically used by fish where appropriate;
substrate includes sediment, hard bottom, structures underlying the
waters, and associated biological communities; necessary means the
habitat required to support a sustainable fishery and the managed
species' contribution to a healthy ecosystem; and ``spawning, breeding,
feeding, or growth to maturity'' covers a species' full life cycle.
Exclusive economic zone (EEZ) means the zone established by
Presidential Proclamation 5030, 3 CFR part 22, dated March 10, 1983, and
is that area adjacent to the United States which, except where modified
to accommodate international boundaries, encompasses all waters from the
seaward boundary of each of the coastal states to a line on which each
point is 200 nautical miles (370.40 km) from the baseline from which the
territorial sea of the United States is measured.
Exempted educational activity means an activity, conducted by an
educational institution accredited by a recognized national or
international accreditation body, of limited scope and duration, that is
otherwise prohibited by part 285 or chapter VI of this title, but that
is authorized by the appropriate Director or Regional Administrator for
educational purposes.
Exempted or experimental fishing means fishing from a vessel of the
United States that involves activities otherwise prohibited by part 285
or chapter VI of this title, but that are authorized under an exempted
fishing permit (EFP). These regulations refer exclusively to exempted
fishing. References in part 285 of this title and elsewhere in this
chapter to experimental fishing mean exempted fishing under this part.
Fillet means to remove slices of fish flesh from the carcass by cuts
made parallel to the backbone.
Fish means:
(1) When used as a noun, means any finfish, mollusk, crustacean, or
parts thereof, and all other forms of marine animal and plant life other
than marine mammals and birds.
(2) When used as a verb, means to engage in ``fishing,'' as defined
below.
[[Page 9]]
Fishery means:
(1) One or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the
basis of geographic, scientific, technical, recreational, or economic
characteristics, or method of catch; or
(2) Any fishing for such stocks.
Fishery management unit (FMU) means a fishery or that portion of a
fishery identified in an FMP relevant to the FMP's management
objectives. The choice of an FMU depends on the focus of the FMP's
objectives, and may be organized around biological, geographic,
economic, technical, social, or ecological perspectives.
Fishery resource means any fish, any stock of fish, any species of
fish, and any habitat of fish.
Fishing, or to fish means any activity, other than scientific
research conducted by a scientific research vessel, that involves:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1), (2), or (3) of this definition.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type that is normally used
for:
(1) Fishing; or
(2) Aiding or assisting one or more vessels at sea in the
performance of any activity relating to fishing, including, but not
limited to, preparation, supply, storage, refrigeration, transportation,
or processing.
Fish weir means a large catching arrangement with a collecting
chamber that is made of non-textile material (wood, wicker) instead of
netting as in a pound net.
Foreign fishing means fishing by a foreign fishing vessel.
Foreign fishing vessel (FFV) means any fishing vessel other than a
vessel of the United States, except those foreign vessels engaged in
recreational fishing, as defined in this section.
Gear conflict means any incident at sea involving one or more
fishing vessels:
(1) In which one fishing vessel or its gear comes into contact with
another vessel or the gear of another vessel; and
(2) That results in the loss of, or damage to, a fishing vessel,
fishing gear, or catch.
Gillnet means a panel of netting, suspended vertically in the water
by floats along the top and weights along the bottom, to entangle fish
that attempt to pass through it.
Governing International Fishery Agreement (GIFA) means an agreement
between the United States and a foreign nation or Nations under section
201(c) of the Magnuson-Stevens Act.
Grants Officer means the NOAA official authorized to sign, on behalf
of the Government, the cooperative agreement providing funds to support
the Council's operations and functions.
Greenwich mean time (GMT) means the local mean time at Greenwich,
England. All times in this part are GMT unless otherwise specified.
Handgear means handline, harpoon, or rod and reel.
Hand harvest means harvesting by hand.
Handline means fishing gear that is set and pulled by hand and
consists of one vertical line to which may be attached leader lines with
hooks.
Harass means to unreasonably interfere with an individual's work
performance, or to engage in conduct that creates an intimidating,
hostile, or offensive environment.
Harpoon or harpoon gear means fishing gear consisting of a pointed
dart or iron attached to the end of a line several hundred feet in
length, the other end of which is attached to a floatation device.
Harpoon gear is attached to a pole or stick that is propelled only by
hand, and not by mechanical means.
Headboat means a vessel that holds a valid Certificate of Inspection
issued by the U.S. Coast Guard to carry passengers for hire.
Hook and line means one or more hooks attached to one or more lines
(can include a troll).
[[Page 10]]
Hoop net means a cone-shaped or flat net which may or may not have
throats and flues stretched over a series of rings or hoops for support.
Industry means both recreational and commercial fishing, and
includes the harvesting, processing, and marketing sectors.
International radio call sign (IRCS) means the unique radio
identifier assigned a vessel by the appropriate authority of the flag
state.
Joint venture means any operation by a foreign vessel assisting
fishing by U.S. fishing vessels, including catching, scouting,
processing and/or support. (A joint venture generally entails a foreign
vessel processing fish received from U.S. fishing vessels and conducting
associated support activities.)
Lampara net means a surround net with the sections of netting made
and joined to create bagging. It is hauled with purse rings and is
generally much smaller in size than a purse seine net.
Land means to begin offloading fish, to offload fish, or to arrive
in port or at a dock, berth, beach, seawall, or ramp.
Longbill spearfish means the species Tetrapturus pfluegeri, or a
part thereof.
Longline means a line that is deployed horizontally and to which
gangions and hooks or pots are attached. Longlines can be stationary,
anchored, or buoyed lines that may be hauled manually, electrically, or
hydraulically.
Magnuson-Stevens Act means the Magnuson-Stevens Fishery Conservation
and Management Act, as amended (16 U.S.C. 1801 et seq.), formerly known
as the Magnuson Act.
Metric ton (mt) means 1,000 kg (2,204.6 lb).
nm means nautical mile (6,076 ft (1,852 m)).
Official number means the documentation number issued by the USCG or
the certificate number issued by a state or by the USCG for an
undocumented vessel.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Optimum yield (OY) means the amount of fish that:
(1) Will provide the greatest overall benefit to the Nation,
particularly with respect to food production and recreational
opportunities, and taking into account the protection of marine
ecosystems;
(2) Is prescribed as such on the basis of the maximum sustainable
yield from the fishery, as reduced by any relevant economic, social, or
ecological factor; and
(3) In the case of an overfished fishery, provides for rebuilding to
a level consistent with producing the maximum sustainable yield in such
fishery.
Owner, with respect to any vessel, means:
(1) Any person who owns that vessel in whole or in part;
(2) Any charterer of the vessel, whether bareboat, time, or voyage;
(3) Any person who acts in the capacity of a charterer, including,
but not limited to, parties to a management agreement, operating
agreement, or any similar agreement that bestows control over the
destination, function, or operation of the vessel; or
(4) Any agent designated as such by a person described in paragraph
(1), (2), or (3) of this definition.
Plan Team means a Council working group selected from agencies,
institutions, and organizations having a role in the research and/or
management of fisheries, whose primary purpose is to assist the Council
in the preparation and/or review of FMPs, amendments, and supporting
documents for the Council, and/or SSC and AP.
Postmark means independently verifiable evidence of the date of
mailing, such as a U.S. Postal Service postmark, or other private
carrier postmark, certified mail receipt, overnight mail receipt, or a
receipt issued upon hand delivery to a representative of NMFS authorized
to collect fishery statistics.
Pot means trap.
Powerhead means any device with an explosive charge, usually
attached to a spear gun, spear, pole, or stick, that may or may not fire
a projectile upon contact.
Predominately means, with respect to fishing in a fishery, that more
fishing on a stock or stocks of fish covered by the FMP occurs, or would
occur in the
[[Page 11]]
absence of regulations, within or beyond the EEZ than occurs in the
aggregate within the boundaries of all states off the coasts of which
the fishery is conducted.
Processing, for the purpose of foreign fishing (subpart F), means
any operation by an FFV to receive fish from foreign or U.S. fishing
vessels and/or the preparation of fish, including, but not limited to,
cleaning, cooking, canning, smoking, salting, drying, or freezing,
either on the FFV's behalf or to assist other foreign or U.S. fishing
vessels.
Product recovery rate (PRR) means a ratio expressed as a percentage
of the weight of processed product divided by the round weight of fish
used to produce that amount of product.
Prohibited species, with respect to a foreign vessel, means any
species of fish that that vessel is not specifically allocated or
authorized to retain, including fish caught or received in excess of any
allocation or authorization.
Purchase means the act or activity of buying, trading, or bartering,
or attempting to buy, trade, or barter.
Purse seine means a floated and weighted encircling net that is
closed by means of a drawstring threaded through rings attached to the
bottom of the net.
Recreational fishing, with respect to a foreign vessel, means any
fishing from a foreign vessel not operated for profit and not operated
for the purpose of scientific research. It may not involve the sale,
barter, or trade of part or all of the catch (see Sec. 600.513).
Retain on board means to fail to return fish to the sea after a
reasonable opportunity to sort the catch.
Region mean one of five NMFS Regional Offices responsible for
administering the management and development of marine resources in the
United States in their respective geographical regions.
Regional Administrator means the Administrator of one of the five
NMFS Regions described in Table 1 of Sec. 600.502, or a designee.
Formerly known as Regional Director.
Regional Program Officer means the NMFS official designated in the
terms and conditions of the grant award responsible for monitoring,
recommending, and reviewing any technical aspects of the application for
Federal assistance and the award.
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually or electrically operated reel attached.
Round means a whole fish--one that has not been gilled, gutted,
beheaded, or definned.
Round weight means the weight of the whole fish before processing or
removal of any part.
Sailfish means the species Istiophorus platypterus, or a part
thereof.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
Science and Research Director means the Director of one of the five
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502 of
this part, or a designee, also known as Center Director.
Scientific cruise means the period of time during which a scientific
research vessel is operated in furtherance of a scientific research
project, beginning when the vessel leaves port to undertake the project
and ending when the vessel completes the project as provided for in the
applicable scientific research plan.
Scientific research activity is, for the purposes of this part, an
activity in furtherance of a scientific fishery investigation or study
that would meet the definition of fishing under the Magnuson-Stevens
Act, but for the exemption applicable to scientific research activity
conducted from a scientific research vessel. Scientific research
activity includes, but is not limited to, sampling, collecting,
observing, or surveying the fish or fishery resources within the EEZ, at
sea, on board scientific research vessels, to increase scientific
knowledge of the fishery resources or their environment, or to test a
hypothesis as part of a planned, directed investigation or study
conducted according to methodologies generally accepted as appropriate
for scientific research. At-sea scientific fishery investigations
address one or more issues involving taxonomy, biology, physiology,
behavior, disease, aging, growth, mortality, migration,
[[Page 12]]
recruitment, distribution, abundance, ecology, stock structure, bycatch,
and catch estimation of finfish and shellfish (invertebrate) species
considered to be a component of the fishery resources within the EEZ.
Scientific research activity does not include the collection and
retention of fish outside the scope of the applicable research plan, or
the testing of fishing gear. Data collection designed to capture and
land quantities of fish or invertebrates for product development, market
research, and/or public display are not scientific research activities
and must be permitted under exempted fishing procedures. For foreign
vessels, such data collection activities are considered scientific
research if they are carried out in full cooperation with the United
States.
Scientific research plan means a detailed, written formulation,
prepared in advance of the research, for the accomplishment of a
scientific research project. At a minimum, a sound scientific research
plan should include:
(1) A description of the nature and objectives of the project,
including the hypothesis or hypotheses to be tested.
(2) The experimental design of the project, including a description
of the methods to be used, the type and class of any vessel(s) to be
used, and a description of sampling equipment.
(3) The geographical area(s) in which the project is to be
conducted.
(4) The expected date of first appearance and final departure of the
research vessel(s) to be employed, and deployment and removal of
equipment, as appropriate.
(5) The expected quantity and species of fish to be taken and their
intended disposition, and, if significant amounts of a managed species
or species otherwise restricted by size or sex are needed, an
explanation of such need.
(6) The name, address, and telephone/telex/fax number of the
sponsoring organization and its director.
(7) The name, address, and telephone/telex/fax number, and
curriculum vitae of the person in charge of the project and, where
different, the person in charge of the research project on board the
vessel.
(8) The identity of any vessel(s) to be used including, but not
limited to, the vessel's name, official documentation number and IRCS,
home port, and name, address, and telephone number of the owner and
master.
Scientific research vessel means a vessel owned or chartered by, and
controlled by, a foreign government agency, U.S. Government agency
(including NOAA or institutions designated as federally funded research
and development centers), U.S. state or territorial agency, university
(or other educational institution accredited by a recognized national or
international accreditation body), international treaty organization, or
scientific institution. In order for a vessel that is owned or chartered
and controlled by a foreign government to meet this definition, the
vessel must have scientific research as its exclusive mission during the
scientific cruise in question and the vessel operations must be
conducted in accordance with a scientific research plan.
Scouting means any operation by a vessel exploring (on the behalf of
an FFV or U.S. fishing vessel) for the presence of fish by visual,
acoustic, or other means that do not involve the catching of fish.
Secretary means the Secretary of Commerce or a designee.
Seine means a net with long narrow wings, that is rigged with floats
and weights.
Skipjack tuna means the species Katsuwonus pelamis, or a part
thereof.
Slurp gun means a tube-shaped suction device that operates somewhat
like a syringe by sucking up the fish.
Snare means a device consisting of a pole to which is attached a
line forming at its end a loop with a running knot that tightens around
the fish when the line is pulled.
Spear means a sharp, pointed, or barbed instrument on a shaft.
Spears can be operated manually or shot from a gun or sling.
State means each of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Northern Mariana Islands, and any other Commonwealth,
territory, or possession of the United States.
[[Page 13]]
State employee means any employee of the state agency responsible
for developing and monitoring the state's program for marine and/or
anadromous fisheries.
Statement of Organization, Practices, and Procedures (SOPP) means a
statement by each Council describing its organization, practices, and
procedures as required under section 302(f)(6) of the Magnuson-Stevens
Act.
Stock assessment means the process of collecting and analyzing
biological and statistical information to determine the changes in the
abundance of fishery stocks in response to fishing, and, to the extent
possible, to predict future trends of stock abundance. Stock assessments
are based on resource surveys; knowledge of the habitat requirements,
life history, and behavior of the species; the use of environmental
indices to determine impacts on stocks; and catch statistics. Stock
assessments are used as a basis to ``assess and specify the present and
probable future condition of a fishery'' (as is required by the
Magnuson-Stevens Act), and are summarized in the Stock Assessment and
Fishery Evaluation or similar document.
Stock Assessment and Fishery Evaluation (SAFE) means a document or
set of documents that provides Councils with a summary of the most
recent biological condition of species in an FMU, and the social and
economic condition of the recreational and commercial fishing industries
and the fish processing industries. It summarizes, on a periodic basis,
the best available scientific information concerning the past, present,
and possible future condition of the stocks and fisheries being managed
under Federal regulation.
Submersible means a manned or unmanned device that functions or
operates primarily underwater and is used to harvest fish, i.e.,
precious corals, with mechanical arms.
Substantially (affects) means, for the purpose of subpart G, with
respect to whether a state's action or omission will substantially
affect the carrying out of an FMP for a fishery, that those effects are
important or material, or considerable in degree. The effects of a
state's action or omission for purposes of this definition include
effects upon:
(1) The achievement of the FMP's goals or objectives for the
fishery;
(2) The achievement of OY from the fishery on a continuing basis;
(3) The attainment of the national standards for fishery
conservation and management (as set forth in section 301(a) of the
Magnuson-Stevens Act) and compliance with other applicable law; or
(4) The enforcement of regulations implementing the FMP.
Support means any operation by a vessel assisting fishing by foreign
or U.S. vessels, including supplying water, fuel, provisions, fish
processing equipment, or other supplies to a fishing vessel.
Swordfish means the species Xiphias gladius, or a part thereof.
Tangle net dredge means dredge gear consisting of weights and flimsy
netting that hangs loosely in order to immediately entangle fish.
Total length (TL) means the straight-line distance from the tip of
the snout to the tip of the tail (caudal fin) while the fish is lying on
its side, normally extended.
Trammel net means a net consisting of two or more panels of netting,
suspended vertically in the water column by a common float line and a
common weight line. One panel of netting has a larger mesh size than the
other(s) in order to entrap fish in a pocket.
Transship means offloading and onloading or otherwise transferring
fish or fish products and/or transporting fish or products made from
fish.
Trap means a portable, enclosed device with one or more gates or
entrances and one or more lines attached to surface floats. Also called
a pot.
Trawl means a cone or funnel-shaped net that is towed through the
water, and can include a pair trawl that is towed simultaneously by two
boats.
Trip means the time period that begins when a fishing vessel departs
from a dock, berth, beach, seawall, ramp, or port to carry out fishing
operations and that terminates with a return to a dock, berth, beach,
seawall, ramp, or port.
[[Page 14]]
U.S. observer or observer means any person serving in the capacity
of an observer employed by NMFS, either directly or under contract, or
certified as a supplementary observer by NMFS.
Vessel of the United States or U.S. vessel means:
(1) Any vessel documented under chapter 121 of title 46, United
States Code;
(2) Any vessel numbered under chapter 123 of title 46, United States
Code, and measuring less than 5 net tons;
(3) Any vessel numbered under chapter 123 of title 46, United States
Code, and used exclusively for pleasure; or
(4) Any vessel not equipped with propulsion machinery of any kind
and used exclusively for pleasure.
White marlin means the species Tetrapturus albidus, or a part
thereof.
Yellowfin tuna means the species Thunnus albacares, or a part
thereof.
[61 FR 32540, June 24, 1996, as amended at 62 FR 14646, Mar. 27, 1997;
62 FR 66551, Dec. 19, 1997; 63 FR 7073, 7075, Feb. 12, 1998; 64 FR 4036,
Jan. 27, 1999; 64 FR 29133, May 28, 1999; 64 FR 67516, Dec. 2, 1999]
Sec. 600.15 Other acronyms.
(a) Fishery management terms. (1) ABC--acceptable biological catch
(2) ATCA-Atlantic Tunas Convention Act
(3) BFT (Atlantic bluefin tuna) means the subspecies of bluefin
tuna, Thunnus thynnus thynnus, or a part thereof, that occurs in the
Atlantic Ocean.
(4) BSD means the ICCAT bluefin tuna statistical document.
(5) DAH--estimated domestic annual harvest
(6) DAP--estimated domestic annual processing
(7) EIS--environmental impact statement
(8) EY--equilibrium yield
(9) FMP--fishery management plan
(10) ICCAT means the International Commission for the Conservation
of Atlantic Tunas.
(11) JVP--joint venture processing
(12) MSY--maximum sustainable yield
(13) PMP--preliminary FMP
(14) TAC--total allowable catch
(15) TALFF--total allowable level of foreign fishing
(b) Legislation. (1) APA--Administrative Procedure Act
(2) CZMA--Coastal Zone Management Act
(3) ESA--Endangered Species Act
(4) FACA--Federal Advisory Committee Act
(5) FOIA--Freedom of Information Act
(6) FLSA--Fair Labor Standards Act
(7) MMPA--Marine Mammal Protection Act
(8) MPRSA--Marine Protection, Research, and Sanctuaries Act
(9) NEPA--National Environmental Policy Act
(10) PA--Privacy Act
(11) PRA--Paperwork Reduction Act
(12) RFA--Regulatory Flexibility Act
(c) Federal agencies. (1) CEQ--Council on Environmental Quality
(2) DOC--Department of Commerce
(3) DOI--Department of the Interior
(4) DOS--Department of State
(5) EPA--Environmental Protection Agency
(6) FWS--Fish and Wildlife Service
(7) GSA--General Services Administration
(8) NMFS--National Marine Fisheries Service
(9) NOAA--National Oceanic and Atmospheric Administration
(10) OMB--Office of Management and Budget
(11) OPM--Office of Personnel Management
(12) SBA--Small Business Administration
(13) USCG--United States Coast Guard
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64
FR 29134, May 28, 1999]
Subpart B--Regional Fishery Management Councils
Sec. 600.105 Intercouncil boundaries.
(a) New England and Mid-Atlantic Councils. The boundary begins at
the intersection point of Connecticut, Rhode Island, and New York at
41 deg.18'16.249" N. lat. and 71 deg.54'28.477" W. long. and proceeds
south 37 deg.22'32.75" East to the point of intersection with the
outward boundary of the EEZ as specified in the Magnuson-Stevens Act.
[[Page 15]]
(b) Mid-Atlantic and South Atlantic Councils. The boundary begins at
the seaward boundary between the States of Virginia and North Carolina
(36 deg.31'00.8" N. lat.), and proceeds due east to the point of
intersection with the outward boundary of the EEZ as specified in the
Magnuson-Stevens Act.
(c) South Atlantic and Gulf of Mexico Councils. The boundary
coincides with the line of demarcation between the Atlantic Ocean and
the Gulf of Mexico, which begins at the intersection of the outer
boundary of the EEZ, as specified in the Magnuson-Stevens Act, and
83 deg.00' W. long., proceeds northward along that meridian to
24 deg.35' N. lat., (near the Dry Tortugas Islands), thence eastward
along that parallel, through Rebecca Shoal and the Quicksand Shoal, to
the Marquesas Keys, and then through the Florida Keys to the mainland at
the eastern end of Florida Bay, the line so running that the narrow
waters within the Dry Tortugas Islands, the Marquesas Keys and the
Florida Keys, and between the Florida Keys and the mainland, are within
the Gulf of Mexico.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.110 Intercouncil fisheries.
If any fishery extends beyond the geographical area of authority of
any one Council, the Secretary may--
(a) Designate a single Council to prepare the FMP for such fishery
and any amendments to such FMP, in consultation with the other Councils
concerned; or
(b) Require that the FMP and any amendments be prepared jointly by
all the Councils concerned.
(1) A jointly prepared FMP or amendment must be adopted by a
majority of the voting members, present and voting, of each
participating Council. Different conservation and management measures
may be developed for specific geographic areas, but the FMP should
address the entire geographic range of the stock(s).
(2) In the case of joint FMP or amendment preparation, one Council
will be designated as the ``administrative lead.'' The ``administrative
lead'' Council is responsible for the preparation of the FMP or any
amendments and other required documents for submission to the Secretary.
(3) None of the Councils involved in joint preparation may withdraw
without Secretarial approval. If Councils cannot agree on approach or
management measures within a reasonable period of time, the Secretary
may designate a single Council to prepare the FMP or may issue the FMP
under Secretarial authority.
Sec. 600.115 Statement of organization, practices, and procedures (SOPP).
(a) Councils are required to publish and make available to the
public a SOPP in accordance with such uniform standards as are
prescribed by the Secretary (section 302(f)(6)) of the Magnuson-Stevens
Act. The purpose of the SOPP is to inform the public how the Council
operates within the framework of the Secretary's uniform standards.
(b) Amendments to current SOPPs must be consistent with the
guidelines in this section and the terms and conditions of the
cooperative agreement, the statutory requirements of the Magnuson-
Stevens Act and other applicable law. Upon approval of a Council's SOPP
amendment by the Secretary, a Notice of Availability will be published
in the Federal Register, including an address where the public may write
to request copies.
(c) Councils may deviate, where lawful, from the guidelines with
appropriate supporting rationale, and Secretarial approval of each
amendment to a SOPP would constitute approval of any such deviations for
that particular Council.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.120 Employment practices.
Council members (except for Federal Government officials) and staff
are not Federal employees subject to OPM regulations. Council staffing
practices are set forth in each Council's SOPP.
Sec. 600.125 Budgeting, funding, and accounting.
Each Council's grant activities are governed by OMB Circular A-110
(Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals,
[[Page 16]]
and other Non-Profit Organizations), OMB Circular A-122 (Cost Principles
for Non-Profit Organizations), 15 CFR Part 29b (Audit Requirements for
Institutions of Higher Education and Other Nonprofit Organizations), and
the terms and conditions of the cooperative agreement. (See 5 CFR 1310.3
for availability of OMB Circulars.)
Sec. 600.130 Protection of confidentiality of statistics.
Each Council must establish appropriate procedures for ensuring the
confidentiality of the statistics that may be submitted to it by Federal
or state authorities and may be voluntarily submitted to it by private
persons, including, but not limited to (also see Sec. 600.405):
(a) Procedures for the restriction of Council member, employee, or
advisory group access and the prevention of conflicts of interest,
except that such procedures must be consistent with procedures of the
Secretary.
(b) In the case of statistics submitted to the Council by a state,
the confidentiality laws and regulations of that state.
Subpart C--Council Membership
Sec. 600.205 Principal state officials and their designees.
(a) Only a full-time state employee of the state agency responsible
for marine and/or anadromous fisheries shall be designated by a
constituent state Governor as the principal state official for purposes
of section 302(b) of the Magnuson-Stevens Act. New or revised
designations by state Governors of principal state officials, and new or
revised designations by principal state officials of their designees(s),
must be delivered in writing to the appropriate NMFS Regional
Administrator at least 48 hours before the individual may vote on any
issue before the Council. Written designation(s) must indicate the
employment status of each principal state official and that of his/her
designee(s), how the official or designee is employed by the state
fisheries agency, where each individual is employed (business address
and telephone number), and whether the official's full salary is paid by
the state.
(b) A principal state official may name his/her designee(s) to act
on his/her behalf at Council meetings. Individuals designated to serve
as designees of a principal state official on a Council, pursuant to
section 302(b)(1)(A) of the Magnuson-Stevens Act, must be full time
state employees involved in the development of fisheries management
policies for that state.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.210 Terms of Council members.
(a) Voting members (other than principal state officials, the
Regional Administrators, or their designees) are appointed for a term of
3 years and, except as discussed in paragraphs (b) and (c) of this
section, may be reappointed. A voting member's Council service of 18
months or more during a term of office will be counted as service for
the entire 3-year term.
(b) The anniversary date for measuring terms of membership is August
11. The Secretary may designate a term of appointment shorter than 3
years, if necessary, to provide for balanced expiration of terms of
office. Members may not serve more than three consecutive terms.
(c) A member appointed after January 1, 1986, who has completed
three consecutive terms will be eligible for appointment to another term
one full year after completion of the third consecutive term.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998]
Sec. 600.215 Council nomination and appointment procedures.
(a) General. (1) Each year, the 3-year terms for approximately one-
third of the appointed members of the Councils expire. The Secretary of
Commerce (Secretary) will appoint or new members or will reappoint
seated members to another term to fill the seats being vacated.
(2) There are two categories of seats to which voting members are
appointed: ``Obligatory'' and ``At-large.''
(i) Obligatory seats are state specific. Each constituent state is
entitled to one seat on the Council on which it is
[[Page 17]]
a member, except that the State of Alaska is entitled to five seats and
the State of Washington is entitled to two seats on the North Pacific
Fishery Management Council. When the term of a state's obligatory member
is expiring or when that seat becomes vacant before the expiration of
its term, the governor of that state must submit the names of at least
three qualified individuals to fill that Council seat.
(ii) The Magnuson-Stevens Act also provides for appointment, by the
Secretary, of one treaty Indian tribal representative to the Pacific
Fishery Management Council (Pacific Council). To fill that seat, the
Secretary solicits written nominations from the heads of governments of
those Indian Tribes with federally recognized fishing rights from the
States of California, Oregon, Washington, or Idaho. The list of nominees
must contain a total of at least three individuals who are knowledgeable
and experienced regarding the fishery resources under the authority of
the Pacific Council. The Secretary will appoint one tribal Indian
representative from this list to the Pacific Council for a term of 3
years and rotate the appointment among the tribes.
(iii) At-large seats are regional. When the term of an at-large
member is expiring or when that seat becomes vacant before the
expiration of a term, the governors of all constituent states of that
Council must each submit the names of at least three qualified
individuals to fill the seat.
(b) Responsibilities of State Governors. (1) Council members are
selected by the Secretary from lists of nominees submitted by Governors
of the constituent states, pursuant to section 302(b)(2)(C) of the
Magnuson-Stevens Act. For each applicable vacancy, a Governor must
submit the names of at least three nominees who meet the qualification
requirements of the Magnuson-Stevens Act. A Governor must provide a
statement explaining how each of his/her nominees meet the qualification
requirements, and must also provide appropriate documentation to the
Secretary that each nomination was made in consultation with commercial
and recreational fishing interests of that state and that each nominee
is knowledgeable and experienced by reason of his or her occupational or
other experience, scientific expertise, or training in one or more of
the following ways related to the fishery resources of the geographical
area of concern to the Council:
(i) Commercial fishing or the processing or marketing of fish, fish
products, or fishing equipment;
(ii) Fishing for pleasure, relaxation, or consumption, or experience
in any business supporting fishing;
(iii) Leadership in a state, regional, or national organization
whose members participate in a fishery in the Council's area of
authority;
(iv) The management and conservation of natural resources, including
related interactions with industry, government bodies, academic
institutions, and public agencies. This includes experience serving as a
member of a Council, Advisory Panel, Scientific and Statistical
Committee, or Fishing Industry Advisory Committee;
(v) Representing consumers of fish or fish products through
participation in local, state, or national organizations, or performing
other activities specifically related to the education or protection of
consumers of marine resources; or
(vi) Teaching, journalism, writing, consulting, practicing law, or
researching matters related to fisheries, fishery management, and marine
resource conservation.
(2) To assist in identifying qualifications, each nominee must
furnish to the appropriate governor's office a current resume, or
equivalent, describing career history--with particular attention to
experience related to the criteria in paragraph (b)(1) of this section.
Nominees may provide such information in any format they wish.
(3) A constituent State Governor must determine the state of
residency of each of his/her nominees. A Governor may not nominate a
non-resident of that state for appointment to a Council seat obligated
to that state. A Governor may nominate residents of another constituent
state of a Council for appointment to an at large seat on that Council.
(4) If, at any time during a term, a member changes residency to
another state that is not a constituent state of
[[Page 18]]
that Council, or a member appointed to an obligatory seat changes
residency to any other state, the member may no longer vote and must
resign from the Council. For purposes of this paragraph, a state
resident is an individual who maintains his/her principal residence
within that constituent state and who, if applicable, pays income taxes
to that state and/or to another appropriate jurisdiction within that
state.
(5) When the terms of both an obligatory member and an at-large
member expire concurrently, the Governor of the state holding the
expiring obligatory seat may indicate that the nominees who were not
selected for appointment to the obligatory seat may be considered for
appointment to an at-large seat, provided that the resulting total
number of nominees submitted by that governor for the expiring at-large
seat is no fewer than three different nominees. When obligatory and at-
large seats do not expire concurrently, the Secretary may select from
any of the nominees for such obligatory seat and from the nominees for
any at-large seat submitted by the Governor of that state, provided that
the resulting total number of nominees submitted by that Governor for
the expiring seats is no fewer than six. If a total of fewer than six
nominees is submitted by the Governor, each of the six will be
considered for the expiring obligatory seat, but not for the expiring
at-large seat.
(c) Responsibilities of eligible tribal Indian governments. The
tribal Indian representative on the Pacific Council will be selected by
the Secretary from a list of no fewer than three individuals submitted
by the tribal Indian governments with federally recognized fishing
rights from California, Oregon, Washington, and Idaho, pursuant to
section 302(b)(5) of the Magnuson-Stevens Act. To assist in assessing
the qualifications of each nominee, each head of an appropriate tribal
Indian government must furnish to the Assistant Administrator a current
resume, or equivalent, describing the nominee's qualifications, with
emphasis on knowledge and experience related to the fishery resources
affected by recommendations of the Pacific Council. Prior service on the
Pacific Council in a different capacity will not disqualify nominees
proposed by tribal Indian governments.
(d) Nomination deadlines. Nomination letters and completed kits must
be forwarded by express mail under a single mailing to the address
specified by the Assistant Administrator by March 15. For appointments
outside the normal cycle, a different deadline for receipt of
nominations will be announced.
(1) Obligatory seats. (i) The governor of the state for which the
term of an obligatory seat is expiring must submit the names of at least
three qualified individuals to fill that seat by the March 15 deadline.
The Secretary will appoint to the Pacific Council a representative of an
Indian tribe from a list of no fewer than three individuals submitted by
the tribal Indian governments.
(ii) If the nominator fails to provide a nomination letter and at
least three complete nomination kits by March 15, the obligatory seat
will remain vacant until all required information has been received and
processed and the Secretary has made the appointment.
(2) At-large seats. (i) If a Governor chooses to submit nominations
for an at-large seat, he/she must submit lists that contain at least
three different qualified nominees for each vacant seat. A nomination
letter and at least three complete nomination kits must be forwarded by
express mail under a single mailing to the address specified by the
Assistant Administrator by March 15.
(ii) Nomination packages that are incomplete after March 15 will be
returned to the nominating Governor and will be processed no further.
At-large members will be appointed from among the nominations submitted
by the governors who complied with the nomination requirements and the
March 15 deadline.
(e) Responsibilities of the Secretary. (1) The Secretary must, to
the extent practicable, ensure a fair and balanced apportionment, on a
rotating or other basis, of the active participants (or their
representatives) in the commercial and recreational fisheries in the
Council's area of authority. Further, the Secretary must take action to
ensure, to the extent practicable, that
[[Page 19]]
those persons dependent for their livelihood upon the fisheries in the
Council's area of authority are fairly represented as voting members on
the Councils.
(2) The Secretary will review each list submitted by a governor or
the tribal Indian governments to ascertain whether the individuals on
the list are qualified for the vacancy. If the Secretary determines that
a nominee is not qualified, the Secretary will notify the appropriate
Governor or tribal Indian government of that determination. The Governor
or tribal Indian government shall then submit a revised list of nominees
or resubmit the original list with an additional explanation of the
qualifications of the nominee in question. The Secretary reserves the
right to determine whether nominees are qualified.
(3) The Secretary will select the appointees from lists of qualified
nominees provided by the Governors of the constituent Council states or
of the tribal Indian governments that are eligible to nominate
candidates for that vacancy.
(i) For Governor-nominated seats, the Secretary will select an
appointee for an obligatory seat from the list of qualified nominees
submitted by the governor of the state. In filling expiring at-large
seats, the Secretary will select an appointee(s) for an at-large seat(s)
from the list of all qualified candidates submitted. The Secretary will
consider only complete slates of nominees submitted by the governors of
the Council's constituent states. When an appointed member vacates his/
her seat prior to the expiration of his/her term, the Secretary will
fill the vacancy for the remainder of the term by selecting from
complete nomination letters and kits that are timely and contain the
required number of candidates.
(ii) For the tribal Indian seat, the Secretary will solicit
nominations of individuals for the list referred to in paragraph (c) of
this section only from those Indian tribes with federally recognized
fishing rights from California, Oregon, Washington, or Idaho. The
Secretary will consult with the Bureau of Indian Affairs, Department of
the Interior, to determine which Indian tribes may submit nominations.
Any vacancy occurring prior to the expiration of any term shall be
filled in the same manner as described in paragraphs (d)(1) and (2) of
this section, except that the Secretary may use the list referred to in
paragraph (b)(1) of this section from which the vacating member was
chosen. The Secretary shall rotate the appointment among the tribes,
taking into consideration:
(A) The qualifications of the individuals on the list referred to in
paragraph (c) of this section.
(B) The various rights of the Indian tribes involved, and judicial
cases that set out the manner in which these rights are to be exercised.
(C) The geographic area in which the tribe of the representative is
located.
(D) The limitation that no tribal Indian representative shall serve
more than three consecutive terms in the Indian tribal seat.
[64 FR 4600, Jan. 29, 1999]
Sec. 600.220 Oath of office.
Each member appointed to a Council must take an oath of office.
Sec. 600.225 Rules of conduct.
(a) Council members, as Federal office holders, and Council
employees are subject to most Federal criminal statutes covering
bribery, conflict-of-interest, disclosure of confidential information,
and lobbying with appropriated funds.
(b) The Councils are responsible for maintaining high standards of
ethical conduct among themselves, their staffs, and their advisory
groups. In addition to abiding by the applicable Federal conflict of
interest statutes, both members and employees of the Councils must
comply with the following standards of conduct:
(1) No employee of a Council may use his or her official authority
or influence derived from his or her position with the Council for the
purpose of interfering with or affecting the result of an election to or
a nomination for any national, state, county, or municipal elective
office.
(2) No employee of a Council may be deprived of employment,
position,
[[Page 20]]
work, compensation, or benefit provided for or made possible by the
Magnuson-Stevens Act on account of any political activity or lack of
such activity in support of or in opposition to any candidate or any
political party in any national, state, county, or municipal election,
or on account of his or her political affiliation.
(3) No Council member or employee may pay, offer, promise, solicit,
or receive from any person, firm, or corporation a contribution of money
or anything of value in consideration of either support or the use of
influence or the promise of support or influence in obtaining for any
person any appointive office, place, or employment under the Council.
(4) No employee of a Council may have a direct or indirect financial
interest that conflicts with the fair and impartial conduct of his or
her Council duties.
(5) No Council member, employee of a Council, or member of a Council
advisory group may use or allow the use, for other than official
purposes, of information obtained through or in connection with his or
her Council employment that has not been made available to the general
public.
(6) No Council member or employee of the Council may engage in
criminal, infamous, dishonest, notoriously immoral, or disgraceful
conduct.
(7) No Council member or employee of the Council may use Council
property on other than official business. Such property must be
protected and preserved from improper or deleterious operation or use.
(8)(i) Except as provided in Sec. 600.235(h) or in 18 U.S.C. 208, no
Council member may participate personally and substantially as a member
through decision, approval, disapproval, recommendation, the rendering
of advice, investigation, or otherwise, in a particular matter in which
the member, the member's spouse, minor child, general partner,
organization in which the member is serving as officer, director,
trustee, general partner, or employee, or any person or organization
with whom the member is negotiating or has any arrangement concerning
prospective employment, has a financial interest. (Note that this
financial interest is broader than the one defined in Sec. 600.235(a).)
(ii) No Council member may participate personally and substantially
as a member through decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or otherwise, in a particular matter
primarily of individual concern, such as a contract, in which he or she
has a financial interest, even if the interest has been disclosed in
accordance with Sec. 600.235.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 64185, Nov. 19, 1998]
Sec. 600.230 Removal.
The Secretary may remove for cause any Secretarially appointed
member of a Council in accordance with section 302(b)(6) of the
Magnuson-Stevens Act, wherein the Council concerned first recommends
removal of that member by not less than two-thirds of the voting
members. A recommendation of a Council to remove a member must be made
in writing to the Secretary and accompanied by a statement of the
reasons upon which the recommendation is based.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998]
Sec. 600.235 Financial disclosure.
(a) Definitions. For purposes of Sec. 600.235:
Affected individual means an individual who is--
(1) Nominated by the Governor of a state or appointed by the
Secretary of Commerce to serve as a voting member of a Council in
accordance with section 302(b)(2) of the Magnuson-Stevens Act; or
(2) A representative of an Indian tribe appointed to the Pacific
Council by the Secretary of Commerce under section 302(b)(5) of the
Magnuson-Stevens Act who is not subject to disclosure and recusal
requirements under the laws of an Indian tribal government.
Council decision means approval of a fishery management plan (FMP)
or FMP amendment (including any proposed regulations); request for
amendment to regulations implementing an
[[Page 21]]
FMP; finding that an emergency exists involving any fishery (including
recommendations for responding to the emergency); and comments to the
Secretary on FMPs or amendments developed by the Secretary. It does not
include a vote by a committee of a Council.
Designated official means an attorney designated by the NOAA General
Counsel.
Financial interest in harvesting, processing, or marketing (1)
includes:
(i) Stock, equity, or other ownership interests in, or employment
with, any company, business, fishing vessel, or other entity engaging in
any harvesting, processing, or marketing activity in any fishery under
the jurisdiction of the Council concerned;
(ii) Stock, equity, or other ownership interests in, or employment
with, any company or other entity that provides equipment or other
services essential to harvesting, processing, or marketing activities in
any fishery under the jurisdiction of the Council concerned, such as a
chandler or a dock operation.
(iii) Employment with, or service as an officer, director, or
trustee of, an association whose members include companies, vessels, or
other entities engaged in harvesting, processing, or marketing
activities, or companies or other entities providing services essential
to harvesting, processing, or marketing activities in any fishery under
the jurisdiction of the Council concerned; and
(iv) Employment with an entity providing consulting, legal, or
representational services to any entity engaging in, or providing
equipment or services essential to, harvesting, processing, or marketing
activities in any fishery under the jurisdiction of the Council
concerned, or to any association whose members include entities engaged
in the activities described in paragraphs (1) (i) and (ii) of this
definition;
(2) Does not include stock, equity, or other ownership interests in,
or employment with, an entity engaging in advocacy on environmental
issues or in scientific fisheries research in any fishery under the
jurisdiction of the Council concerned, unless it is covered under
paragraph (1) of this definition. A financial interest in such entities
is covered by 18 U.S.C. 208, the Federal conflict-of-interest statute.
(b) Reporting. (1) The Magnuson-Stevens Act requires the disclosure
by each affected individual of any financial interest in harvesting,
processing, or marketing activity, and of any such financial interest of
the affected individual's spouse, minor child, partner, or any
organization (other than the Council) in which that individual is
serving as an officer, director, trustee, partner, or employee. The
information required to be reported must be disclosed on NOAA Form 88-
195, ``Statement of Financial Interests for Use by Voting Members and
Nominees of Regional Fishery Management Councils'' (Financial Interest
Form), or such other form as the Secretary may prescribe.
(2) The Financial Interest Form must be filed by each nominee for
Secretarial appointment with the Assistant Administrator by April 15 or,
if nominated after March 15, 1 month after nomination by the Governor. A
seated voting member appointed by the Secretary must file a Financial
Interest Form with the Executive Director of the appropriate Council
within 45 days of taking office; must file an update of his or her
statement with the Executive Director of the appropriate Council within
30 days of the time any such financial interest is acquired or
substantially changed by the affected individual or the affected
individual's spouse, minor child, partner, or any organization (other
than the Council) in which that individual is serving as an officer,
director, trustee, partner, or employee; and must update his or her form
annually and file that update with the Executive Director of the
appropriate Council by February 1 of each year.
(3) The Executive Director must, in a timely manner, provide copies
of the financial disclosure forms and all updates to the NMFS Regional
Administrator for the geographic area concerned, the Regional Attorney
who advises the Council, the Department of Commerce Assistant General
Counsel for Administration, and the NMFS Office of Sustainable
Fisheries. The completed financial interest forms will be kept on file
in the office of the NMFS
[[Page 22]]
Regional Administrator for the geographic area concerned and at the
Council offices, and will be made available for public inspection at
such offices during normal office hours. In addition, the forms will be
made available at each Council meeting or hearing.
(4) Councils must retain the disclosure form for each affected
individual for at least 5 years after the expiration of that
individual's last term.
(c) Restrictions on voting. (1) No affected individual may vote on
any Council decision that would have a significant and predictable
effect on a financial interest disclosed in his/her report filed under
paragraph (b) of this section.
(2) As used in this section, a Council decision will be considered
to have a ``significant and predictable effect on a financial interest''
if there is a close causal link between the decision and an expected and
substantially disproportionate benefit to the financial interest in
harvesting, processing, or marketing of any affected individual or the
affected individual's spouse, minor child, partner, or any organization
(other than the Council) in which that individual is serving as an
officer, director, trustee, partner, or employee, relative to the
financial interests of other participants in the same gear type or
sector of the fishery. The relative financial interests of the affected
individual and other participants will be determined with reference to
the most recent fishing year for which information is available.
However, for fisheries in which IFQs are assigned, the percentage of
IFQs assigned to the affected individual will be dispositive.
(3) ``Expected and substantially disproportionate benefit'' means a
quantifiable positive or negative impact with regard to a matter likely
to affect a fishery or sector of the fishery in which the affected
individual has a significant interest, as indicated by:
(i) A greater than 10-percent interest in the total harvest of the
fishery or sector of the fishery in question;
(ii) A greater than 10-percent interest in the marketing or
processing of the total harvest of the fishery or sector of the fishery
in question; or
(iii) Full or partial ownership of more than 10 percent of the
vessels using the same gear type within the fishery or sector of the
fishery in question.
(d) Voluntary recusal. An affected individual who believes that a
Council decision would have a significant and predictable effect on that
individual's financial interest disclosed under paragraph (b) of this
section may, at any time before a vote is taken, announce to the Council
an intent not to vote on the decision.
(e) Participation in deliberations. Notwithstanding paragraph (c) of
this section, an affected individual who is recused from voting under
this section may participate in Council and committee deliberations
relating to the decision, after notifying the Council of the voting
recusal and identifying the financial interest that would be affected.
(f) Requests for determination. (1) At the request of an affected
individual, the designated official shall determine for the record
whether a Council decision would have a significant and predictable
effect on that individual's financial interest. The determination will
be based upon a review of the information contained in the individual's
financial disclosure form and any other reliable and probative
information provided in writing. All information considered will be made
part of the public record for the decision. The affected individual may
request a determination by notifying the designated official--
(i) Within a reasonable time before the Council meeting at which the
Council decision will be made; or
(ii) During a Council meeting before a Council vote on the decision.
(2) The designated official may initiate a determination on the
basis of--
(i) His or her knowledge of the fishery and the financial interests
disclosed by an affected individual; or
(ii) Written and signed information received within a reasonable
time before a Council meeting or, if the issue could not have been
anticipated before the meeting, during a Council meeting before a
Council vote on the decision.
(3) At the beginning of each Council meeting, or during a Council
meeting
[[Page 23]]
at any time reliable and probative information is received, the
designated official shall announce the receipt of information relevant
to a determination concerning recusal, the nature of that information,
and the identity of the submitter of such information.
(4) If the designated official determines that the affected
individual may not vote, the individual may state for the record how he
or she would have voted. A Council Chair may not allow such an
individual to cast a vote.
(5) A reversal of a determination under paragraph (g) of this
section may not be treated as cause for invalidation or reconsideration
by the Secretary of a Council's decision.
(g) Review of determinations. (1) Any Council member may file a
written request to the NOAA General Counsel for review of the designated
official's determination. A request for review must be received within
10 days of the determination.
(2) A request must include a full statement in support of the
review, including a concise statement as to why the Council's decision
did or did not have a significantly disproportionate benefit to the
financial interest of the affected individual relative to the financial
interests of other participants in the same gear type or sector of the
fishery, and why the designated official's determination should be
reversed.
(3) If the request for review is from a Council member other than
the affected individual whose vote is at issue, the requester must
provide a copy of the request to the affected individual at the same
time it is submitted to the NOAA General Counsel. The affected
individual may submit a response to the NOAA General Counsel within 10
days from the date of his/her receipt of the request for review.
(4) The NOAA General Counsel must complete the review and issue a
decision within 30 days from the date of receipt of the request for
review. The NOAA General Counsel will limit the review to the record
before the designated official at the time of the determination, the
request, and any response.
(h) Exemption from other statutes. The provisions of 18 U.S.C. 208
regarding conflicts of interest do not apply to an affected individual
who is in compliance with the requirements of this section for filing a
financial disclosure report.
(i) Violations and penalties. It is unlawful for an affected
individual to knowingly and willfully fail to disclose, or to falsely
disclose, any financial interest as required by this section, or to
knowingly vote on a Council decision in violation of this section. In
addition to the penalties applicable under Sec. 600.735, a violation of
this provision may result in removal of the affected individual from
Council membership.
[63 FR 64185, Nov. 19, 1998]
Sec. 600.240 Security assurances.
(a) DOC/OS will issue security assurances to Council nominees and
members following completion of background checks. Security assurances
will be valid for 5 years from the date of issuance. A security
assurance will not entitle the member to access classified data. In
instances in which Council members may need to discuss, at closed
meetings, materials classified for national security purposes, the
agency or individual (e.g., DOS, USCG) providing such classified
information will be responsible for ensuring that Council members and
other attendees have the appropriate security clearances.
(b) Each nominee to a Council is required to complete a
Certification of Status form (``form''). All nominees must certify,
pursuant to the Foreign Agents Registration Act of 1938, whether they
serve as an agent of a foreign principal. Each nominee must certify,
date, sign, and return the form with his or her completed nomination
kit. Nominees will not be considered for appointment to a Council if
they have not filed this form. Any nominee who currently is an agent of
a foreign principal will not be eligible for appointment to a Council,
and therefore should not be nominated by a Governor for appointment.
Sec. 600.245 Council member compensation.
(a) The obligatory and at-large voting members of each Council
appointed
[[Page 24]]
under section 302(b)(1)(C) of the Magnuson-Stevens Act who are not
employed by the Federal Government or any state or local government
(i.e., any member who does not receive compensation from any such
government for the period when performing duties as a Council member)
shall receive compensation at 1.2 times the daily rate for a GS-15 (Step
1) of the General Schedule (without locality pay) when engaged in actual
performance of duties as assigned by the Chair of the Council. Actual
performance of duties, for the purposes of compensation, may include
travel time.
(b) All voting Council members whose eligibility for compensation
has been established in accordance with NOAA guidelines will be paid
through the cooperative agreement as a direct line item on a contractual
basis without deductions being made for Social Security or Federal and
state income taxes. A report of compensation will be furnished each year
by the member's Council to the proper Regional Program Officer, as
required by the Internal Revenue Service. Such compensation may be paid
on a full day's basis, whether in excess of 8 hours a day or less than 8
hours a day. The time is compensable where the individual member is
required to expend a significant private effort that substantially
disrupts the daily routine to the extent that a work day is lost to the
member. ``Homework'' time in preparation for formal Council meetings is
not compensable.
(c) Non-government Council members receive compensation for:
(1) Days spent in actual attendance at a meeting of the Council or
jointly with another Council.
(2) Travel on the day preceding or following a scheduled meeting
that precluded the member from conducting his normal business on the day
in question.
(3) Meetings of standing committees of the Council if approved in
advance by the Chair.
(4) Individual member meeting with scientific and technical
advisors, when approved in advance by the Chair and a substantial
portion of any day is spent at the meeting.
(5) Conducting or attending hearings, when authorized in advance by
the Chair.
(6) Other meetings involving Council business when approved in
advance by the Chair.
(d) The Executive Director of each Council must submit to the
appropriate Regional Office annually a report, approved by the Council
Chair, of Council member compensation authorized. This report shall
identify, for each member, amount paid, dates, and location and purpose
of meetings attended.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Subpart D--National Standards
Sec. 600.305 General.
(a) Purpose. (1) This subpart establishes guidelines, based on the
national standards, to assist in the development and review of FMPs,
amendments, and regulations prepared by the Councils and the Secretary.
(2) In developing FMPs, the Councils have the initial authority to
ascertain factual circumstances, to establish management objectives, and
to propose management measures that will achieve the objectives. The
Secretary will determine whether the proposed management objectives and
measures are consistent with the national standards, other provisions of
the Magnuson-Stevens Act, and other applicable law. The Secretary has an
obligation under section 301(b) of the Magnuson-Stevens Act to inform
the Councils of the Secretary's interpretation of the national standards
so that they will have an understanding of the basis on which FMPs will
be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decisionmaking; FMPs
formulated according to the guidelines will have a better chance for
expeditious Secretarial review, approval, and implementation. FMPs that
are in substantial compliance with the guidelines, the Magnuson-Stevens
Act, and other applicable law must be approved.
[[Page 25]]
(b) Fishery management objectives. (1) Each FMP, whether prepared by
a Council or by the Secretary, should identify what the FMP is designed
to accomplish (i.e., the management objectives to be attained in
regulating the fishery under consideration). In establishing objectives,
Councils balance biological constraints with human needs, reconcile
present and future costs and benefits, and integrate the diversity of
public and private interests. If objectives are in conflict, priorities
should be established among them.
(2) How objectives are defined is important to the management
process. Objectives should address the problems of a particular fishery.
The objectives should be clearly stated, practicably attainable, framed
in terms of definable events and measurable benefits, and based upon a
comprehensive rather than a fragmentary approach to the problems
addressed. An FMP should make a clear distinction between objectives and
the management measures chosen to achieve them. The objectives of each
FMP provide the context within which the Secretary will judge the
consistency of an FMP's conservation and management measures with the
national standards.
(c) Word usage. The word usage refers to all regulations in this
subpart.
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson-Stevens Act, the logical extension thereof, or of other
applicable law.
(2) Shall is used only when quoting statutory language directly, to
avoid confusion with the future tense.
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson-Stevens Act, and is a factor reviewers will look for in
evaluating a SOPP or FMP.
(4) May is used in a permissive sense.
(5) May not is proscriptive; it has the same force as ``must not.''
(6) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(7) Could is used when giving examples, in a hypothetical,
permissive sense.
(8) Can is used to mean ``is able to,'' as distinguished from
``may.''
(9) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(10) Analysis, as a paragraph heading, signals more detailed
guidance as to the type of discussion and examination an FMP should
contain to demonstrate compliance with the standard in question.
(11) Council includes the Secretary, as applicable, when preparing
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens
Act.
(12) Stock or stock complex is used as a synonym for ``fishery'' in
the sense of the Magnuson-Stevens Act's first definition of the term;
that is, as ``one or more stocks of fish that can be treated as a unit
for purposes of conservation and management and that are identified on
the basis of geographic, scientific, technical, recreational, or
economic characteristics,'' as distinguished from the Magnuson-Stevens
Act's second definition of fishery as ``any fishing for such stocks.''
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24229, May 1, 1998]
Sec. 600.310 National Standard 1--Optimum Yield.
(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the OY from each
fishery for the U.S. fishing industry.
(b) General. The determination of OY is a decisional mechanism for
resolving the Magnuson-Stevens Act's multiple purposes and policies,
implementing an FMP's objectives, and balancing the various interests
that comprise the national welfare. OY is based on MSY, or on MSY as it
may be reduced under paragraph (f)(3) of this section. The most
important limitation on the specification of OY is that the choice of OY
and the conservation and management measures proposed to achieve it must
prevent overfishing.
(c) MSY. Each FMP should include an estimate of MSY as explained in
this section.
(1) Definitions. (i) ``MSY'' is the largest long-term average catch
or yield
[[Page 26]]
that can be taken from a stock or stock complex under prevailing
ecological and environmental conditions.
(ii) ``MSY control rule'' means a harvest strategy which, if
implemented, would be expected to result in a long-term average catch
approximating MSY.
(iii) ``MSY stock size'' means the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or other
appropriate units, that would be achieved under an MSY control rule in
which the fishing mortality rate is constant.
(2) Options in specifying MSY. (i) Because MSY is a theoretical
concept, its estimation in practice is conditional on the choice of an
MSY control rule. In choosing an MSY control rule, Councils should be
guided by the characteristics of the fishery, the FMP's objectives, and
the best scientific information available. The simplest MSY control rule
is to remove a constant catch in each year that the estimated stock size
exceeds an appropriate lower bound, where this catch is chosen so as to
maximize the resulting long-term average yield. Other examples include
the following: Remove a constant fraction of the biomass in each year,
where this fraction is chosen so as to maximize the resulting long-term
average yield; allow a constant level of escapement in each year, where
this level is chosen so as to maximize the resulting long-term average
yield; vary the fishing mortality rate as a continuous function of stock
size, where the parameters of this function are constant and chosen so
as to maximize the resulting long-term average yield. In any MSY control
rule, a given stock size is associated with a given level of fishing
mortality and a given level of potential harvest, where the long-term
average of these potential harvests provides an estimate of MSY.
(ii) Any MSY values used in determining OY will necessarily be
estimates, and these will typically be associated with some level of
uncertainty. Such estimates must be based on the best scientific
information available (see Sec. 600.315) and must incorporate
appropriate consideration of risk (see Sec. 600.335). Beyond these
requirements, however, Councils have a reasonable degree of latitude in
determining which estimates to use and how these estimates are to be
expressed. For example, a point estimate of MSY may be expressed by
itself or together with a confidence interval around that estimate.
(iii) In the case of a mixed-stock fishery, MSY should be specified
on a stock-by-stock basis. However, where MSY cannot be specified for
each stock, then MSY may be specified on the basis of one or more
species as an indicator for the mixed stock as a whole or for the
fishery as a whole.
(iv) Because MSY is a long-term average, it need not be estimated
annually, but it must be based on the best scientific information
available, and should be re-estimated as required by changes in
environmental or ecological conditions or new scientific information.
(3) Alternatives to specifying MSY. When data are insufficient to
estimate MSY directly, Councils should adopt other measures of
productive capacity that can serve as reasonable proxies for MSY, to the
extent possible. Examples include various reference points defined in
terms of relative spawning per recruit. For instance, the fishing
mortality rate that reduces the long-term average level of spawning per
recruit to 30-40 percent of the long-term average that would be expected
in the absence of fishing may be a reasonable proxy for the MSY fishing
mortality rate. The long-term average stock size obtained by fishing
year after year at this rate under average recruitment may be a
reasonable proxy for the MSY stock size, and the long-term average catch
so obtained may be a reasonable proxy for MSY. The natural mortality
rate may also be a reasonable proxy for the MSY fishing mortality rate.
If a reliable estimate of pristine stock size (i.e., the long-term
average stock size that would be expected in the absence of fishing) is
available, a stock size approximately 40 percent of this value may be a
reasonable proxy for the MSY stock size, and the product of this stock
size and the natural mortality rate may be a reasonable proxy for MSY.
(d) Overfishing--(1) Definitions. (i) ``To overfish'' means to fish
at a rate or
[[Page 27]]
level that jeopardizes the capacity of a stock or stock complex to
produce MSY on a continuing basis.
(ii) ``Overfishing'' occurs whenever a stock or stock complex is
subjected to a rate or level of fishing mortality that jeopardizes the
capacity of a stock or stock complex to produce MSY on a continuing
basis.
(iii) In the Magnuson-Stevens Act, the term ``overfished'' is used
in two senses: First, to describe any stock or stock complex that is
subjected to a rate or level of fishing mortality meeting the criterion
in paragraph (d)(1)(i) of this section, and second, to describe any
stock or stock complex whose size is sufficiently small that a change in
management practices is required in order to achieve an appropriate
level and rate of rebuilding. To avoid confusion, this section uses
``overfished'' in the second sense only.
(2) Specification of status determination criteria. Each FMP must
specify, to the extent possible, objective and measurable status
determination criteria for each stock or stock complex covered by that
FMP and provide an analysis of how the status determination criteria
were chosen and how they relate to reproductive potential. Status
determination criteria must be expressed in a way that enables the
Council and the Secretary to monitor the stock or stock complex and
determine annually whether overfishing is occurring and whether the
stock or stock complex is overfished. In all cases, status determination
criteria must specify both of the following:
(i) A maximum fishing mortality threshold or reasonable proxy
thereof. The fishing mortality threshold may be expressed either as a
single number or as a function of spawning biomass or other measure of
productive capacity. The fishing mortality threshold must not exceed the
fishing mortality rate or level associated with the relevant MSY control
rule. Exceeding the fishing mortality threshold for a period of 1 year
or more constitutes overfishing.
(ii) A minimum stock size threshold or reasonable proxy thereof. The
stock size threshold should be expressed in terms of spawning biomass or
other measure of productive capacity. To the extent possible, the stock
size threshold should equal whichever of the following is greater: One-
half the MSY stock size, or the minimum stock size at which rebuilding
to the MSY level would be expected to occur within 10 years if the stock
or stock complex were exploited at the maximum fishing mortality
threshold specified under paragraph (d)(2)(i) of this section. Should
the actual size of the stock or stock complex in a given year fall below
this threshold, the stock or stock complex is considered overfished.
(3) Relationship of status determination criteria to other national
standards--(i) National standard 2. Status determination criteria must
be based on the best scientific information available (see
Sec. 600.315). When data are insufficient to estimate MSY, Councils
should base status determination criteria on reasonable proxies thereof
to the extent possible (also see paragraph (c)(3) of this section). In
cases where scientific data are severely limited, effort should also be
directed to identifying and gathering the needed data.
(ii) National standard 3. The requirement to manage interrelated
stocks of fish as a unit or in close coordination notwithstanding (see
Sec. 600.320), status determination criteria should generally be
specified in terms of the level of stock aggregation for which the best
scientific information is available (also see paragraph (c)(2)(iii) of
this section).
(iii) National standard 6. Councils must build into the status
determination criteria appropriate consideration of risk, taking into
account uncertainties in estimating harvest, stock conditions, life
history parameters, or the effects of environmental factors (see
Sec. 600.335).
(4) Relationship of status determination criteria to environmental
change. Some short-term environmental changes can alter the current size
of a stock or stock complex without affecting the long-term productive
capacity of the stock or stock complex. Other environmental changes
affect both the current size of the stock or stock complex and the long-
term productive capacity of the stock or stock complex.
(i) If environmental changes cause a stock or stock complex to fall
below the minimum stock size threshold
[[Page 28]]
without affecting the long-term productive capacity of the stock or
stock complex, fishing mortality must be constrained sufficiently to
allow rebuilding within an acceptable time frame (also see paragraph
(e)(4)(ii) of this section). Status determination criteria need not be
respecified.
(ii) If environmental changes affect the long-term productive
capacity of the stock or stock complex, one or more components of the
status determination criteria must be respecified. Once status
determination criteria have been respecified, fishing mortality may or
may not have to be reduced, depending on the status of the stock or
stock complex with respect to the new criteria.
(iii) If manmade environmental changes are partially responsible for
a stock or stock complex being in an overfished condition, in addition
to controlling effort, Councils should recommend restoration of habitat
and other ameliorative programs, to the extent possible (see also the
guidelines issued pursuant to section 305(b) of the Magnuson-Stevens Act
for Council actions concerning essential fish habitat).
(5) Secretarial approval of status determination criteria.
Secretarial approval or disapproval of proposed status determination
criteria will be based on consideration of whether the proposal:
(i) Has sufficient scientific merit.
(ii) Contains the elements described in paragraph (d)(2) of this
section.
(iii) Provides a basis for objective measurement of the status of
the stock or stock complex against the criteria.
(iv) Is operationally feasible.
(6) Exceptions. There are certain limited exceptions to the
requirement to prevent overfishing. Harvesting one species of a mixed-
stock complex at its optimum level may result in the overfishing of
another stock component in the complex. A Council may decide to permit
this type of overfishing only if all of the following conditions are
satisfied:
(i) It is demonstrated by analysis (paragraph (f)(6) of this
section) that such action will result in long-term net benefits to the
Nation.
(ii) It is demonstrated by analysis that mitigating measures have
been considered and that a similar level of long-term net benefits
cannot be achieved by modifying fleet behavior, gear selection/
configuration, or other technical characteristic in a manner such that
no overfishing would occur.
(iii) The resulting rate or level of fishing mortality will not
cause any species or evolutionarily significant unit thereof to require
protection under the ESA.
(e) Ending overfishing and rebuilding overfished stocks-- (1)
Definition. A threshold, either maximum fishing mortality or minimum
stock size, is being ``approached'' whenever it is projected that the
threshold will be breached within 2 years, based on trends in fishing
effort, fishery resource size, and other appropriate factors.
(2) Notification. The Secretary will immediately notify a Council
and request that remedial action be taken whenever the Secretary
determines that:
(i) Overfishing is occurring;
(ii) A stock or stock complex is overfished;
(iii) The rate or level of fishing mortality for a stock or stock
complex is approaching the maximum fishing mortality threshold;
(iv) A stock or stock complex is approaching its minimum stock size
threshold; or
(v) Existing remedial action taken for the purpose of ending
previously identified overfishing or rebuilding a previously identified
overfished stock or stock complex has not resulted in adequate progress.
(3) Council action. Within 1 year of such time as the Secretary may
identify that overfishing is occurring, that a stock or stock complex is
overfished, or that a threshold is being approached, or such time as a
Council may be notified of the same under paragraph (e)(2) of this
section, the Council must take remedial action by preparing an FMP, FMP
amendment, or proposed regulations. This remedial action must be
designed to accomplish all of the following purposes that apply:
(i) If overfishing is occurring, the purpose of the action is to end
overfishing.
[[Page 29]]
(ii) If the stock or stock complex is overfished, the purpose of the
action is to rebuild the stock or stock complex to the MSY level within
an appropriate time frame.
(iii) If the rate or level of fishing mortality is approaching the
maximum fishing mortality threshold (from below), the purpose of the
action is to prevent this threshold from being reached.
(iv) If the stock or stock complex is approaching the minimum stock
size threshold (from above), the purpose of the action is to prevent
this threshold from being reached.
(4) Constraints on Council action. (i) In cases where overfishing is
occurring, Council action must be sufficient to end overfishing.
(ii) In cases where a stock or stock complex is overfished, Council
action must specify a time period for rebuilding the stock or stock
complex that satisfies the requirements of section 304(e)(4)(A) of the
Magnuson-Stevens Act.
(A) A number of factors enter into the specification of the time
period for rebuilding:
(1) The status and biology of the stock or stock complex;
(2) Interactions between the stock or stock complex and other
components of the marine ecosystem (also referred to as ``other
environmental conditions'');
(3) The needs of fishing communities;
(4) Recommendations by international organizations in which the
United States participates; and
(5) Management measures under an international agreement in which
the United States participates.
(B) These factors enter into the specification of the time period
for rebuilding as follows:
(1) The lower limit of the specified time period for rebuilding is
determined by the status and biology of the stock or stock complex and
its interactions with other components of the marine ecosystem, and is
defined as the amount of time that would be required for rebuilding if
fishing mortality were eliminated entirely.
(2) If the lower limit is less than 10 years, then the specified
time period for rebuilding may be adjusted upward to the extent
warranted by the needs of fishing communities and recommendations by
international organizations in which the United States participates,
except that no such upward adjustment can result in the specified time
period exceeding 10 years, unless management measures under an
international agreement in which the United States participates dictate
otherwise.
(3) If the lower limit is 10 years or greater, then the specified
time period for rebuilding may be adjusted upward to the extent
warranted by the needs of fishing communities and recommendations by
international organizations in which the United States participates,
except that no such upward adjustment can exceed the rebuilding period
calculated in the absence of fishing mortality, plus one mean generation
time or equivalent period based on the species' life-history
characteristics. For example, suppose a stock could be rebuilt within 12
years in the absence of any fishing mortality, and has a mean generation
time of 8 years. The rebuilding period, in this case, could be as long
as 20 years.
(C) A rebuilding program undertaken after May 1, 1998 commences as
soon as the first measures to rebuild the stock or stock complex are
implemented.
(D) In the case of rebuilding plans that were already in place as of
May 1, 1998, such rebuilding plans must be reviewed to determine whether
they are in compliance with all requirements of the Magnuson-Stevens
Act, as amended by the Sustainable Fisheries Act.
(iii) For fisheries managed under an international agreement,
Council action must reflect traditional participation in the fishery,
relative to other nations, by fishermen of the United States.
(5) Interim measures. The Secretary, on his/her own initiative or in
response to a Council request, may implement interim measures to reduce
overfishing under section 305(c) of the Magnuson-Stevens Act, until such
measures can be replaced by an FMP, FMP amendment, or regulations taking
remedial action.
(i) These measures may remain in effect for no more than 180 days,
but may be extended for an additional 180 days if the public has had an
opportunity to comment on the measures and, in the
[[Page 30]]
case of Council-recommended measures, the Council is actively preparing
an FMP, FMP amendment, or proposed regulations to address overfishing on
a permanent basis. Such measures, if otherwise in compliance with the
provisions of the Magnuson-Stevens Act, may be implemented even though
they are not sufficient by themselves to stop overfishing of a fishery.
(ii) If interim measures are made effective without prior notice and
opportunity for comment, they should be reserved for exceptional
situations, because they affect fishermen without providing the usual
procedural safeguards. A Council recommendation for interim measures
without notice-and-comment rulemaking will be considered favorably if
the short-term benefits of the measures in reducing overfishing outweigh
the value of advance notice, public comment, and deliberative
consideration of the impacts on participants in the fishery.
(f) OY--(1) Definitions. (i) The term ``optimum,'' with respect to
the yield from a fishery, means the amount of fish that will provide the
greatest overall benefit to the Nation, particularly with respect to
food production and recreational opportunities and taking into account
the protection of marine ecosystems; that is prescribed on the basis of
the MSY from the fishery, as reduced by any relevant economic, social,
or ecological factor; and, in the case of an overfished fishery, that
provides for rebuilding to a level consistent with producing the MSY in
such fishery.
(ii) In national standard 1, use of the phrase ``achieving, on a
continuing basis, the OY from each fishery'' means producing, from each
fishery, a long-term series of catches such that the average catch is
equal to the average OY and such that status determination criteria are
met.
(2) Values in determination. In determining the greatest benefit to
the Nation, these values that should be weighed are food production,
recreational opportunities, and protection afforded to marine
ecosystems. They should receive serious attention when considering the
economic, social, or ecological factors used in reducing MSY to obtain
OY.
(i) The benefits of food production are derived from providing
seafood to consumers, maintaining an economically viable fishery
together with its attendant contributions to the national, regional, and
local economies, and utilizing the capacity of the Nation's fishery
resources to meet nutritional needs.
(ii) The benefits of recreational opportunities reflect the quality
of both the recreational fishing experience and non-consumptive fishery
uses such as ecotourism, fish watching, and recreational diving, and the
contribution of recreational fishing to the national, regional, and
local economies and food supplies.
(iii) The benefits of protection afforded to marine ecosystems are
those resulting from maintaining viable populations (including those of
unexploited species), maintaining evolutionary and ecological processes
(e.g., disturbance regimes, hydrological processes, nutrient cycles),
maintaining the evolutionary potential of species and ecosystems, and
accommodating human use.
(3) Factors relevant to OY. Because fisheries have finite
capacities, any attempt to maximize the measures of benefit described in
paragraph (f)(2) of this section will inevitably encounter practical
constraints. One of these is MSY. Moreover, various factors can
constrain the optimum level of catch to a value less than MSY. The
Magnuson-Stevens Act's definition of OY identifies three categories of
such factors: Social, economic, and ecological. Not every factor will be
relevant in every fishery. For some fisheries, insufficient information
may be available with respect to some factors to provide a basis for
corresponding reductions in MSY.
(i) Social factors. Examples are enjoyment gained from recreational
fishing, avoidance of gear conflicts and resulting disputes,
preservation of a way of life for fishermen and their families, and
dependence of local communities on a fishery. Other factors that may be
considered include the cultural place of subsistence fishing,
obligations under Indian treaties, and worldwide nutritional needs.
[[Page 31]]
(ii) Economic factors. Examples are prudent consideration of the
risk of overharvesting when a stock's size or productive capacity is
uncertain, satisfaction of consumer and recreational needs, and
encouragement of domestic and export markets for U.S.-harvested fish.
Other factors that may be considered include the value of fisheries, the
level of capitalization, the decrease in cost per unit of catch afforded
by an increase in stock size, and the attendant increase in catch per
unit of effort, alternate employment opportunities, and economies of
coastal areas.
(iii) Ecological factors. Examples are stock size and age
composition, the vulnerability of incidental or unregulated stocks in a
mixed-stock fishery, predator-prey or competitive interactions, and
dependence of marine mammals and birds or endangered species on a stock
of fish. Also important are ecological or environmental conditions that
stress marine organisms, such as natural and manmade changes in wetlands
or nursery grounds, and effects of pollutants on habitat and stocks.
(4) Specification. (i) The amount of fish that constitutes the OY
should be expressed in terms of numbers or weight of fish. However, OY
may be expressed as a formula that converts periodic stock assessments
into target harvest levels; in terms of an annual harvest of fish or
shellfish having a minimum weight, length, or other measurement; or as
an amount of fish taken only in certain areas, in certain seasons, with
particular gear, or by a specified amount of fishing effort.
(ii) Either a range or a single value may be specified for OY.
Specification of a numerical, fixed-value OY does not preclude use of
annual target harvest levels that vary with stock size. Such target
harvest levels may be prescribed on the basis of an OY control rule
similar to the MSY control rule described in paragraph (c)(1)(ii) of
this section, but designed to achieve OY on average, rather than MSY.
The annual harvest level obtained under an OY control rule must always
be less than or equal to the harvest level that would be obtained under
the MSY control rule.
(iii) All fishing mortality must be counted against OY, including
that resulting from bycatch, scientific research, and any other fishing
activities.
(iv) The OY specification should be translatable into an annual
numerical estimate for the purposes of establishing any TALFF and
analyzing impacts of the management regime. There should be a mechanism
in the FMP for periodic reassessment of the OY specification, so that it
is responsive to changing circumstances in the fishery.
(v) The determination of OY requires a specification of MSY, which
may not always be possible or meaningful. However, even where sufficient
scientific data as to the biological characteristics of the stock do not
exist, or where the period of exploitation or investigation has not been
long enough for adequate understanding of stock dynamics, or where
frequent large-scale fluctuations in stock size diminish the
meaningfulness of the MSY concept, the OY must still be based on the
best scientific information available. When data are insufficient to
estimate MSY directly, Councils should adopt other measures of
productive capacity that can serve as reasonable proxies for MSY to the
extent possible (also see paragraph (c)(3) of this section).
(vi) In a mixed-stock fishery, specification of a fishery-wide OY
may be accompanied by management measures establishing separate annual
target harvest levels for the individual stocks. In such cases, the sum
of the individual target levels should not exceed OY.
(5) OY and the precautionary approach. In general, Councils should
adopt a precautionary approach to specification of OY. A precautionary
approach is characterized by three features:
(i) Target reference points, such as OY, should be set safely below
limit reference points, such as the catch level associated with the
fishing mortality rate or level defined by the status determination
criteria. Because it is a target reference point, OY does not constitute
an absolute ceiling, but rather a desired result. An FMP must contain
conservation and management measures to achieve OY, and provisions for
information collection that are designed to determine the degree to
which OY is achieved on a continuing
[[Page 32]]
basis--that is, to result in a long-term average catch equal to the
long-term average OY, while meeting the status determination criteria.
These measures should allow for practical and effective implementation
and enforcement of the management regime, so that the harvest is allowed
to reach OY, but not to exceed OY by a substantial amount. The Secretary
has an obligation to implement and enforce the FMP so that OY is
achieved. If management measures prove unenforceable--or too
restrictive, or not rigorous enough to realize OY--they should be
modified; an alternative is to reexamine the adequacy of the OY
specification. Exceeding OY does not necessarily constitute overfishing.
However, even if no overfishing resulted from exceeding OY, continual
harvest at a level above OY would violate national standard 1, because
OY was not achieved on a continuing basis.
(ii) A stock or stock complex that is below the size that would
produce MSY should be harvested at a lower rate or level of fishing
mortality than if the stock or stock complex were above the size that
would produce MSY.
(iii) Criteria used to set target catch levels should be explicitly
risk averse, so that greater uncertainty regarding the status or
productive capacity of a stock or stock complex corresponds to greater
caution in setting target catch levels. Part of the OY may be held as a
reserve to allow for factors such as uncertainties in estimates of stock
size and DAH. If an OY reserve is established, an adequate mechanism
should be included in the FMP to permit timely release of the reserve to
domestic or foreign fishermen, if necessary.
(6) Analysis. An FMP must contain an assessment of how its OY
specification was determined (section 303(a)(3) of the Magnuson-Stevens
Act). It should relate the explanation of overfishing in paragraph (d)
of this section to conditions in the particular fishery and explain how
its choice of OY and conservation and management measures will prevent
overfishing in that fishery. A Council must identify those economic,
social, and ecological factors relevant to management of a particular
fishery, then evaluate them to determine the amount, if any, by which
MSY exceeds OY. The choice of a particular OY must be carefully defined
and documented to show that the OY selected will produce the greatest
benefit to the Nation. If overfishing is permitted under paragraph
(d)(6) of this section, the assessment must contain a justification in
terms of overall benefits, including a comparison of benefits under
alternative management measures, and an analysis of the risk of any
species or ecologically significant unit thereof reaching a threatened
or endangered status, as well as the risk of any stock or stock complex
falling below its minimum stock size threshold.
(7) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens
Act provides that fishing by foreign nations is limited to that portion
of the OY that will not be harvested by vessels of the United States.
(i) DAH. Councils must consider the capacity of, and the extent to
which, U.S. vessels will harvest the OY on an annual basis. Estimating
the amount that U.S. fishing vessels will actually harvest is required
to determine the surplus.
(ii) DAP. Each FMP must assess the capacity of U.S. processors. It
must also assess the amount of DAP, which is the sum of two estimates:
The estimated amount of U.S. harvest that domestic processors will
process, which may be based on historical performance or on surveys of
the expressed intention of manufacturers to process, supported by
evidence of contracts, plant expansion, or other relevant information;
and the estimated amount of fish that will be harvested by domestic
vessels, but not processed (e.g., marketed as fresh whole fish, used for
private consumption, or used for bait).
(iii) JVP. When DAH exceeds DAP, the surplus is available for JVP.
JVP is derived from DAH.
[63 FR 24229, May 1, 1998]
Sec. 600.315 National Standard 2--Scientific Information.
(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
(b) FMP development. The fact that scientific information concerning
a
[[Page 33]]
fishery is incomplete does not prevent the preparation and
implementation of an FMP (see related Secs. 600.320(d)(2) and
600.340(b).
(1) Scientific information includes, but is not limited to,
information of a biological, ecological, economic, or social nature.
Successful fishery management depends, in part, on the timely
availability, quality, and quantity of scientific information, as well
as on the thorough analysis of this information, and the extent to which
the information is applied. If there are conflicting facts or opinions
relevant to a particular point, a Council may choose among them, but
should justify the choice.
(2) FMPs must take into account the best scientific information
available at the time of preparation. Between the initial drafting of an
FMP and its submission for final review, new information often becomes
available. This new information should be incorporated into the final
FMP where practicable; but it is unnecessary to start the FMP process
over again, unless the information indicates that drastic changes have
occurred in the fishery that might require revision of the management
objectives or measures.
(c) FMP implementation. (1) An FMP must specify whatever information
fishermen and processors will be required or requested to submit to the
Secretary. Information about harvest within state boundaries, as well as
in the EEZ, may be collected if it is needed for proper implementation
of the FMP and cannot be obtained otherwise. The FMP should explain the
practical utility of the information specified in monitoring the
fishery, in facilitating inseason management decisions, and in judging
the performance of the management regime; it should also consider the
effort, cost, or social impact of obtaining it.
(2) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource, marine
ecosystem, and the fishery (including fishing communities).
(3) The information submitted by various data suppliers should be
comparable and compatible, to the maximum extent possible.
(d) FMP amendment. FMPs should be amended on a timely basis, as new
information indicates the necessity for change in objectives or
management measures.
(e) SAFE Report. (1) The SAFE report is a document or set of
documents that provides Councils with a summary of information
concerning the most recent biological condition of stocks and the marine
ecosystems in the FMU and the social and economic condition of the
recreational and commercial fishing interests, fishing communities, and
the fish processing industries. It summarizes, on a periodic basis, the
best available scientific information concerning the past, present, and
possible future condition of the stocks, marine ecosystems, and
fisheries being managed under Federal regulation.
(i) The Secretary has the responsibility to assure that a SAFE
report or similar document is prepared, reviewed annually, and changed
as necessary for each FMP. The Secretary or Councils may utilize any
combination of talent from Council, state, Federal, university, or other
sources to acquire and analyze data and produce the SAFE report.
(ii) The SAFE report provides information to the Councils for
determining annual harvest levels from each stock, documenting
significant trends or changes in the resource, marine ecosystems, and
fishery over time, and assessing the relative success of existing state
and Federal fishery management programs. Information on bycatch and
safety for each fishery should also be summarized. In addition, the SAFE
report may be used to update or expand previous environmental and
regulatory impact documents, and ecosystem and habitat descriptions.
(iii) Each SAFE report must be scientifically based, and cite data
sources and interpretations.
(2) Each SAFE report should contain information on which to base
harvest specifications.
(3) Each SAFE report should contain a description of the maximum
fishing mortality threshold and the minimum stock size threshold for
each stock or stock complex, along with information by which the Council
may determine:
[[Page 34]]
(i) Whether overfishing is occurring with respect to any stock or
stock complex, whether any stock or stock complex is overfished, whether
the rate or level of fishing mortality applied to any stock or stock
complex is approaching the maximum fishing mortality threshold, and
whether the size of any stock or stock complex is approaching the
minimum stock size threshold.
(ii) Any management measures necessary to provide for rebuilding an
overfished stock or stock complex (if any) to a level consistent with
producing the MSY in such fishery.
(4) Each SAFE report may contain additional economic, social,
community, essential fish habitat, and ecological information pertinent
to the success of management or the achievement of objectives of each
FMP.
(5) Each SAFE report may contain additional economic, social, and
ecological information pertinent to the success of management or the
achievement of objectives of each FMP.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24233, May 1, 1998]
Sec. 600.320 National Standard 3--Management Units.
(a) Standard 3. To the extent practicable, an individual stock of
fish shall be managed as a unit throughout its range, and interrelated
stocks of fish shall be managed as a unit or in close coordination.
(b) General. The purpose of this standard is to induce a
comprehensive approach to fishery management. The geographic scope of
the fishery, for planning purposes, should cover the entire range of the
stocks(s) of fish, and not be overly constrained by political
boundaries. Wherever practicable, an FMP should seek to manage
interrelated stocks of fish.
(c) Unity of management. Cooperation and understanding among
entities concerned with the fishery (e.g., Councils, states, Federal
Government, international commissions, foreign nations) are vital to
effective management. Where management of a fishery involves multiple
jurisdictions, coordination among the several entities should be sought
in the development of an FMP. Where a range overlaps Council areas, one
FMP to cover the entire range is preferred. The Secretary designates
which Council(s) will prepare the FMP, under section 304(f) of the
Magnuson-Stevens Act.
(d) Management unit. The term ``management unit'' means a fishery or
that portion of a fishery identified in an FMP as relevant to the FMP's
management objectives.
(1) Basis. The choice of a management unit depends on the focus of
the FMP's objectives, and may be organized around biological,
geographic, economic, technical, social, or ecological perspectives. For
example:
(i) Biological--could be based on a stock(s) throughout its range.
(ii) Geographic--could be an area.
(iii) Economic--could be based on a fishery supplying specific
product forms.
(iv) Technical--could be based on a fishery utilizing a specific
gear type or similar fishing practices.
(v) Social--could be based on fishermen as the unifying element,
such as when the fishermen pursue different species in a regular pattern
throughout the year.
(vi) Ecological--could be based on species that are associated in
the ecosystem or are dependent on a particular habitat.
(2) Conservation and management measures. FMPs should include
conservation and management measures for that part of the management
unit within U.S. waters, although the Secretary can ordinarily implement
them only within the EEZ. The measures need not be identical for each
geographic area within the management unit, if the FMP justifies the
differences. A management unit may contain, in addition to regulated
species, stocks of fish for which there is not enough information
available to specify MSY and OY or to establish management measures, so
that data on these species may be collected under the FMP.
(e) Analysis. To document that an FMP is as comprehensive as
practicable, it should include discussions of the following:
(1) The range and distribution of the stocks, as well as the
patterns of fishing effort and harvest.
[[Page 35]]
(2) Alternative management units and reasons for selecting a
particular one. A less-than-comprehensive management unit may be
justified if, for example, complementary management exits or is planned
for a separate geographic area or for a distinct use of the stocks, or
if the unmanaged portion of the resource is immaterial to proper
management.
(3) Management activities and habitat programs of adjacent states
and their effects on the FMP's objectives and management measures. Where
state action is necessary to implement measures within state waters to
achieve FMP objectives, the FMP should identify what state action is
necessary, discuss the consequences of state inaction or contrary
action, and make appropriate recommendations. The FMP should also
discuss the impact that Federal regulations will have on state
management activities.
(4) Management activities of other countries having an impact on the
fishery, and how the FMP's management measures are designed to take into
account these impacts. International boundaries may be dealt with in
several ways. For example:
(i) By limiting the management unit's scope to that portion of the
stock found in U.S. waters;
(ii) By estimating MSY for the entire stock and then basing the
determination of OY for the U.S. fishery on the portion of the stock
within U.S. waters; or
(iii) By referring to treaties or cooperative agreements.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24234, May 1, 1998]
Sec. 600.325 National Standard 4--Allocations.
(a) Standard 4. Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be:
(1) Fair and equitable to all such fishermen.
(2) Reasonably calculated to promote conservation.
(3) Carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges.
(b) Discrimination among residents of different states. An FMP may
not differentiate among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. An FMP may not
incorporate or rely on a state statute or regulation that discriminates
against residents of another state. Conservation and management measures
that have different effects on persons in various geographic locations
are permissible if they satisfy the other guidelines under Standard 4.
Examples of these precepts are:
(1) An FMP that restricted fishing in the EEZ to those holding a
permit from state X would violate Standard 4 if state X issued permits
only to its own citizens.
(2) An FMP that closed a spawning ground might disadvantage
fishermen living in the state closest to it, because they would have to
travel farther to an open area, but the closure could be justified under
Standard 4 as a conservation measure with no discriminatory intent.
(c) Allocation of fishing privileges. An FMP may contain management
measures that allocate fishing privileges if such measures are necessary
or helpful in furthering legitimate objectives or in achieving the OY,
and if the measures conform with paragraphs (c)(3)(i) through
(c)(3)(iii) of this section.
(1) Definition. An ``allocation'' or ``assignment'' of fishing
privileges is a direct and deliberate distribution of the opportunity to
participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or lack of management) has
incidental allocative effects, but only those measures that result in
direct distributions of fishing privileges will be judged against the
allocation requirements of Standard 4. Adoption of an FMP that merely
perpetuates existing fishing practices may result in an allocation, if
those practices directly distribute the opportunity to participate in
the fishery. Allocations of fishing privileges include, for example,
per-vessel catch limits, quotas by vessel class and gear type, different
quotas or fishing seasons for recreational and commercial fishermen,
[[Page 36]]
assignment of ocean areas to different gear users, and limitation of
permits to a certain number of vessels or fishermen.
(2) Analysis of allocations. Each FMP should contain a description
and analysis of the allocations existing in the fishery and of those
made in the FMP. The effects of eliminating an existing allocation
system should be examined. Allocation schemes considered, but rejected
by the Council, should be included in the discussion. The analysis
should relate the recommended allocations to the FMP's objectives and OY
specification, and discuss the factors listed in paragraph (c)(3) of
this section.
(3) Factors in making allocations. An allocation of fishing
privileges must be fair and equitable, must be reasonably calculated to
promote conservation, and must avoid excessive shares. These tests are
explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:
(i) Fairness and equity. (A) An allocation of fishing privileges
should be rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective. Inherent in an allocation is
the advantaging of one group to the detriment of another. The motive for
making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause. For instance, an FMP objective
to preserve the economic status quo cannot be achieved by excluding a
group of long-time participants in the fishery. On the other hand, there
is a rational connection between an objective of harvesting shrimp at
their maximum size and closing a nursery area to trawling.
(B) An allocation of fishing privileges may impose a hardship on one
group if it is outweighed by the total benefits received by another
group or groups. An allocation need not preserve the status quo in the
fishery to qualify as ``fair and equitable,'' if a restructuring of
fishing privileges would maximize overall benefits. The Council should
make an initial estimate of the relative benefits and hardships imposed
by the allocation, and compare its consequences with those of
alternative allocation schemes, including the status quo. Where
relevant, judicial guidance and government policy concerning the rights
of treaty Indians and aboriginal Americans must be considered in
determining whether an allocation is fair and equitable.
(ii) Promotion of conservation. Numerous methods of allocating
fishing privileges are considered ``conservation and management''
measures under section 303 of the Magnuson-Stevens Act. An allocation
scheme may promote conservation by encouraging a rational, more easily
managed use of the resource. Or, it may promote conservation (in the
sense of wise use) by optimizing the yield in terms of size, value,
market mix, price, or economic or social benefit of the product. To the
extent that rebuilding plans or other conservation and management
measures that reduce the overall harvest in a fishery are necessary, any
harvest restrictions or recovery benefits must be allocated fairly and
equitably among the commercial, recreational, and charter fishing
sectors of the fishery.
(iii) Avoidance of excessive shares. An allocation scheme must be
designed to deter any person or other entity from acquiring an excessive
share of fishing privileges, and to avoid creating conditions fostering
inordinate control, by buyers or sellers, that would not otherwise
exist.
(iv) Other factors. In designing an allocation scheme, a Council
should consider other factors relevant to the FMP's objectives. Examples
are economic and social consequences of the scheme, food production,
consumer interest, dependence on the fishery by present participants and
coastal communities, efficiency of various types of gear used in the
fishery, transferability of effort to and impact on other fisheries,
opportunity for new participants to enter the fishery, and enhancement
of opportunities for recreational fishing.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24234, May 1, 1998]
Sec. 600.330 National Standard 5--Efficiency.
(a) Standard 5. Conservation and management measures shall, where
practicable, consider efficiency in the
[[Page 37]]
utilization of fishery resources; except that no such measure shall have
economic allocation as its sole purpose.
(b) Efficiency in the utilization of resources--(1) General. The
term ``utilization'' encompasses harvesting, processing, marketing, and
non-consumptive uses of the resource, since management decisions affect
all sectors of the industry. In considering efficient utilization of
fishery resources, this standard highlights one way that a fishery can
contribute to the Nation's benefit with the least cost to society: Given
a set of objectives for the fishery, an FMP should contain management
measures that result in as efficient a fishery as is practicable or
desirable.
(2) Efficiency. In theory, an efficient fishery would harvest the OY
with the minimum use of economic inputs such as labor, capital,
interest, and fuel. Efficiency in terms of aggregate costs then becomes
a conservation objective, where ``conservation'' constitutes wise use of
all resources involved in the fishery, not just fish stocks.
(i) In an FMP, management measures may be proposed that allocate
fish among different groups of individuals or establish a system of
property rights. Alternative measures examined in searching for an
efficient outcome will result in different distributions of gains and
burdens among identifiable user groups. An FMP should demonstrate that
management measures aimed at efficiency do not simply redistribute gains
and burdens without an increase in efficiency.
(ii) Management regimes that allow a fishery to operate at the
lowest possible cost (e.g., fishing effort, administration, and
enforcement) for a particular level of catch and initial stock size are
considered efficient. Restrictive measures that unnecessarily raise any
of those costs move the regime toward inefficiency. Unless the use of
inefficient techniques or the creation of redundant fishing capacity
contributes to the attainment of other social or biological objectives,
an FMP may not contain management measures that impede the use of cost-
effective techniques of harvesting, processing, or marketing, and should
avoid creating strong incentives for excessive investment in private
sector fishing capital and labor.
(c) Limited access. A ``system for limiting access,'' which is an
optional measure under section 303(b) of the Magnuson-Stevens Act, is a
type of allocation of fishing privileges that may be considered to
contribute to economic efficiency or conservation. For example, limited
access may be used to combat overfishing, overcrowding, or
overcapitalization in a fishery to achieve OY. In an unutilized or
underutilized fishery, it may be used to reduce the chance that these
conditions will adversely affect the fishery in the future, or to
provide adequate economic return to pioneers in a new fishery. In some
cases, limited entry is a useful ingredient of a conservation scheme,
because it facilitates application and enforcement of other management
measures.
(1) Definition. Limited access (or limited entry) is a management
technique that attempts to limit units of effort in a fishery, usually
for the purpose of reducing economic waste, improving net economic
return to the fishermen, or capturing economic rent for the benefit of
the taxpayer or the consumer. Common forms of limited access are
licensing of vessels, gear, or fishermen to reduce the number of units
of effort, and dividing the total allowable catch into fishermen's
quotas (a stock-certificate system). Two forms (i.e., Federal fees for
licenses or permits in excess of administrative costs, and taxation) are
not permitted under the Magnuson-Stevens Act, except for fees allowed
under section 304(d)(2).
(2) Factors to consider. The Magnuson-Stevens Act ties the use of
limited access to the achievement of OY. An FMP that proposes a limited
access system must consider the factors listed in section 303(b)(6) of
the Magnuson-Stevens Act and in Sec. 600.325(c)(3). In addition, it
should consider the criteria for qualifying for a permit, the nature of
the interest created, whether to make the permit transferable, and the
Magnuson-Stevens Act's limitations on returning economic rent to the
public under section 304(d). The FMP should also discuss the costs of
achieving an appropriate distribution of fishing privileges.
[[Page 38]]
(d) Analysis. An FMP should discuss the extent to which
overcapitalization, congestion, economic waste, and inefficient
techniques in the fishery reduce the net benefits derived from the
management unit and prevent the attainment and appropriate allocation of
OY. It should also explain, in terms of the FMP's objectives, any
restriction placed on the use of efficient techniques of harvesting,
processing, or marketing. If, during FMP development, the Council
considered imposing a limited-entry system, the FMP should analyze the
Council's decision to recommend or reject limited access as a technique
to achieve efficient utilization of the resources of the fishing
industry.
(e) Economic allocation. This standard prohibits only those measures
that distribute fishery resources among fishermen on the basis of
economic factors alone, and that have economic allocation as their only
purpose. Where conservation and management measures are recommended that
would change the economic structure of the industry or the economic
conditions under which the industry operates, the need for such measures
must be justified in light of the biological, ecological, and social
objectives of the FMP, as well as the economic objectives.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24234, May 1, 1998]
Sec. 600.335 National Standard 6--Variations and Contingencies.
(a) Standard 6. Conservation and management measures shall take into
account and allow for variations among, and contingencies in, fisheries,
fishery resources, and catches.
(b) Conservation and management. Each fishery exhibits unique
uncertainties. The phrase ``conservation and management'' implies the
wise use of fishery resources through a management regime that includes
some protection against these uncertainties. The particular regime
chosen must be flexible enough to allow timely response to resource,
industry, and other national and regional needs. Continual data
acquisition and analysis will help the development of management
measures to compensate for variations and to reduce the need for
substantial buffers. Flexibility in the management regime and the
regulatory process will aid in responding to contingencies.
(c) Variations. (1) In fishery management terms, variations arise
from biological, social, and economic occurrences, as well as from
fishing practices. Biological uncertainties and lack of knowledge can
hamper attempts to estimate stock size and strength, stock location in
time and space, environmental/habitat changes, and ecological
interactions. Economic uncertainty may involve changes in foreign or
domestic market conditions, changes in operating costs, drifts toward
overcapitalization, and economic perturbations caused by changed fishing
patterns. Changes in fishing practices, such as the introduction of new
gear, rapid increases or decreases in harvest effort, new fishing
strategies, and the effects of new management techniques, may also
create uncertainties. Social changes could involve increases or
decreases in recreational fishing, or the movement of people into or out
of fishing activities due to such factors as age or educational
opportunities.
(2) Every effort should be made to develop FMPs that discuss and
take into account these vicissitudes. To the extent practicable, FMPs
should provide a suitable buffer in favor of conservation. Allowances
for uncertainties should be factored into the various elements of an
FMP. Examples are:
(i) Reduce OY. Lack of scientific knowledge about the condition of a
stock(s) could be reason to reduce OY.
(ii) Establish a reserve. Creation of a reserve may compensate for
uncertainties in estimating domestic harvest, stock conditions, or
environmental factors.
(iii) Adjust management techniques. In the absence of adequate data
to predict the effect of a new regime, and to avoid creating unwanted
variations, a Council could guard against producing drastic changes in
fishing patterns, allocations, or practices.
(iv) Highlight habitat conditions. FMPs may address the impact of
pollution and the effects of wetland and estuarine degradation on the
stocks of fish; identify causes of pollution and habitat degradation and
the authorities having
[[Page 39]]
jurisdiction to regulate or influence such activities; propose
recommendations that the Secretary will convey to those authorities to
alleviate such problems; and state the views of the Council on
unresolved or anticipated issues.
(d) Contingencies. Unpredictable events--such as unexpected resource
surges or failures, fishing effort greater than anticipated, disruptive
gear conflicts, climatic conditions, or environmental catastrophes--are
best handled by establishing a flexible management regime that contains
a range of management options through which it is possible to act
quickly without amending the FMP or even its regulations.
(1) The FMP should describe the management options and their
consequences in the necessary detail to guide the Secretary in
responding to changed circumstances, so that the Council preserves its
role as policy-setter for the fishery. The description should enable the
public to understand what may happen under the flexible regime, and to
comment on the options.
(2) FMPs should include criteria for the selection of management
measures, directions for their application, and mechanisms for timely
adjustment of management measures comprising the regime. For example, an
FMP could include criteria that allow the Secretary to open and close
seasons, close fishing grounds, or make other adjustments in management
measures.
(3) Amendment of a flexible FMP would be necessary when
circumstances in the fishery change substantially, or when a Council
adopts a different management philosophy and objectives.
Sec. 600.340 National Standard 7--Costs and Benefits.
(a) Standard 7. Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary duplication.
(b) Necessity of Federal management--(1) General. The principle that
not every fishery needs regulation is implicit in this standard. The
Magnuson-Stevens Act requires Councils to prepare FMPs only for
overfished fisheries and for other fisheries where regulation would
serve some useful purpose and where the present or future benefits of
regulation would justify the costs. For example, the need to collect
data about a fishery is not, by itself, adequate justification for
preparation of an FMP, since there are less costly ways to gather the
data (see Sec. 600.320(d)(2). In some cases, the FMP preparation process
itself, even if it does not culminate in a document approved by the
Secretary, can be useful in supplying a basis for management by one or
more coastal states.
(2) Criteria. In deciding whether a fishery needs management through
regulations implementing an FMP, the following general factors should be
considered, among others:
(i) The importance of the fishery to the Nation and to the regional
economy.
(ii) The condition of the stock or stocks of fish and whether an FMP
can improve or maintain that condition.
(iii) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson-Stevens Act.
(iv) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(v) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(vi) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(vii) The costs associated with an FMP, balanced against the
benefits (see paragraph (d) of this section as a guide).
(c) Alternative management measures. Management measures should not
impose unnecessary burdens on the economy, on individuals, on private or
public organizations, or on Federal, state, or local governments.
Factors such as fuel costs, enforcement costs, or the burdens of
collecting data may well suggest a preferred alternative.
(d) Analysis. The supporting analyses for FMPs should demonstrate
that the benefits of fishery regulation are real and substantial
relative to the added
[[Page 40]]
research, administrative, and enforcement costs, as well as costs to the
industry of compliance. In determining the benefits and costs of
management measures, each management strategy considered and its impacts
on different user groups in the fishery should be evaluated. This
requirement need not produce an elaborate, formalistic cost/benefit
analysis. Rather, an evaluation of effects and costs, especially of
differences among workable alternatives, including the status quo, is
adequate. If quantitative estimates are not possible, qualitative
estimates will suffice.
(1) Burdens. Management measures should be designed to give
fishermen the greatest possible freedom of action in conducting business
and pursuing recreational opportunities that are consistent with
ensuring wise use of the resources and reducing conflict in the fishery.
The type and level of burden placed on user groups by the regulations
need to be identified. Such an examination should include, for example:
Capital outlays; operating and maintenance costs; reporting costs;
administrative, enforcement, and information costs; and prices to
consumers. Management measures may shift costs from one level of
government to another, from one part of the private sector to another,
or from the government to the private sector. Redistribution of costs
through regulations is likely to generate controversy. A discussion of
these and any other burdens placed on the public through FMP regulations
should be a part of the FMP's supporting analyses.
(2) Gains. The relative distribution of gains may change as a result
of instituting different sets of alternatives, as may the specific type
of gain. The analysis of benefits should focus on the specific gains
produced by each alternative set of management measures, including the
status quo. The benefits to society that result from the alternative
management measures should be identified, and the level of gain
assessed.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24234, May 1, 1998]
Sec. 600.345 National Standard 8--Communities.
(a) Standard 8. Conservation and management measures shall,
consistent with the conservation requirements of the Magnuson-Stevens
Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities in order to:
(1) Provide for the sustained participation of such communities; and
(2) To the extent practicable, minimize adverse economic impacts on
such communities.
(b) General. (1) This standard requires that an FMP take into
account the importance of fishery resources to fishing communities. This
consideration, however, is within the context of the conservation
requirements of the Magnuson-Stevens Act. Deliberations regarding the
importance of fishery resources to affected fishing communities,
therefore, must not compromise the achievement of conservation
requirements and goals of the FMP. Where the preferred alternative
negatively affects the sustained participation of fishing communities,
the FMP should discuss the rationale for selecting this alternative over
another with a lesser impact on fishing communities. All other things
being equal, where two alternatives achieve similar conservation goals,
the alternative that provides the greater potential for sustained
participation of such communities and minimizes the adverse economic
impacts on such communities would be the preferred alternative.
(2) This standard does not constitute a basis for allocating
resources to a specific fishing community nor for providing preferential
treatment based on residence in a fishing community.
(3) The term ``fishing community'' means a community that is
substantially dependent on or substantially engaged in the harvest or
processing of fishery resources to meet social and economic needs, and
includes fishing vessel owners, operators, and crew, and fish processors
that are based in such communities. A fishing community is a social or
economic group whose members reside in a specific location and
[[Page 41]]
share a common dependency on commercial, recreational, or subsistence
fishing or on directly related fisheries-dependent services and
industries (for example, boatyards, ice suppliers, tackle shops).
(4) The term ``sustained participation'' means continued access to
the fishery within the constraints of the condition of the resource.
(c) Analysis. (1) FMPs must examine the social and economic
importance of fisheries to communities potentially affected by
management measures. For example, severe reductions of harvests for
conservation purposes may decrease employment opportunities for
fishermen and processing plant workers, thereby adversely affecting
their families and communities. Similarly, a management measure that
results in the allocation of fishery resources among competing sectors
of a fishery may benefit some communities at the expense of others.
(2) An appropriate vehicle for the analyses under this standard is
the fishery impact statement required by section 303(a)(9) of the
Magnuson-Stevens Act. Qualitative and quantitative data may be used,
including information provided by fishermen, dealers, processors, and
fisheries organizations and associations. In cases where data are
severely limited, effort should be directed to identifying and gathering
needed data.
(3) To address the sustained participation of fishing communities
that will be affected by management measures, the analysis should first
identify affected fishing communities and then assess their differing
levels of dependence on and engagement in the fishery being regulated.
The analysis should also specify how that assessment was made. The best
available data on the history, extent, and type of participation of
these fishing communities in the fishery should be incorporated into the
social and economic information presented in the FMP. The analysis does
not have to contain an exhaustive listing of all communities that might
fit the definition; a judgment can be made as to which are primarily
affected. The analysis should discuss each alternative's likely effect
on the sustained participation of these fishing communities in the
fishery.
(4) The analysis should assess the likely positive and negative
social and economic impacts of the alternative management measures, over
both the short and the long term, on fishing communities. Any particular
management measure may economically benefit some communities while
adversely affecting others. Economic impacts should be considered both
for individual communities and for the group of all affected communities
identified in the FMP. Impacts of both consumptive and non-consumptive
uses of fishery resources should be considered.
(5) A discussion of social and economic impacts should identify
those alternatives that would minimize adverse impacts on these fishing
communities within the constraints of conservation and management goals
of the FMP, other national standards, and other applicable law.
[63 FR 24234, May 1, 1998]
Sec. 600.350 National Standard 9--Bycatch.
(a) Standard 9. Conservation and management measures shall, to the
extent practicable:
(1) Minimize bycatch; and
(2) To the extent bycatch cannot be avoided, minimize the mortality
of such bycatch.
(b) General. This national standard requires Councils to consider
the bycatch effects of existing and planned conservation and management
measures. Bycatch can, in two ways, impede efforts to protect marine
ecosystems and achieve sustainable fisheries and the full benefits they
can provide to the Nation. First, bycatch can increase substantially the
uncertainty concerning total fishing-related mortality, which makes it
more difficult to assess the status of stocks, to set the appropriate OY
and define overfishing levels, and to ensure that OYs are attained and
overfishing levels are not exceeded. Second, bycatch may also preclude
other more productive uses of fishery resources.
(c) Definition--Bycatch. The term ``bycatch'' means fish that are
harvested in a fishery, but that are not sold or kept for personal use.
Bycatch
[[Page 42]]
includes the discard of whole fish at sea or elsewhere, including
economic discards and regulatory discards, and fishing mortality due to
an encounter with fishing gear that does not result in capture of fish
(i.e., unobserved fishing mortality). Bycatch does not include any fish
that legally are retained in a fishery and kept for personal, tribal, or
cultural use, or that enter commerce through sale, barter, or trade.
Bycatch does not include fish released alive under a recreational catch-
and-release fishery management program. A catch-and-release fishery
management program is one in which the retention of a particular species
is prohibited. In such a program, those fish released alive would not be
considered bycatch. Bycatch also does not include Atlantic highly
migratory species harvested in a commercial fishery that are not
regulatory discards and that are tagged and released alive under a
scientific tag-and-release program established by the Secretary.
(d) Minimizing bycatch and bycatch mortality. The priority under
this standard is first to avoid catching bycatch species where
practicable. Fish that are bycatch and cannot be avoided must, to the
extent practicable, be returned to the sea alive. Any proposed
conservation and management measure that does not give priority to
avoiding the capture of bycatch species must be supported by appropriate
analyses. In their evaluation, the Councils must consider the net
benefits to the Nation, which include, but are not limited to: Negative
impacts on affected stocks; incomes accruing to participants in directed
fisheries in both the short and long term; incomes accruing to
participants in fisheries that target the bycatch species; environmental
consequences; non-market values of bycatch species, which include non-
consumptive uses of bycatch species and existence values, as well as
recreational values; and impacts on other marine organisms. To evaluate
conservation and management measures relative to this and other national
standards, as well as to evaluate total fishing mortality, Councils
must--
(1) Promote development of a database on bycatch and bycatch
mortality in the fishery to the extent practicable. A review and, where
necessary, improvement of data collection methods, data sources, and
applications of data must be initiated for each fishery to determine the
amount, type, disposition, and other characteristics of bycatch and
bycatch mortality in each fishery for purposes of this standard and of
section 303(a)(11) and (12) of the Magnuson-Stevens Act. Bycatch should
be categorized to focus on management responses necessary to minimize
bycatch and bycatch mortality to the extent practicable. When
appropriate, management measures, such as at-sea monitoring programs,
should be developed to meet these information needs.
(2) For each management measure, assess the effects on the amount
and type of bycatch and bycatch mortality in the fishery. Most
conservation and management measures can affect the amounts of bycatch
or bycatch mortality in a fishery, as well as the extent to which
further reductions in bycatch are practicable. In analyzing measures,
including the status quo, Councils should assess the impacts of
minimizing bycatch and bycatch mortality, as well as consistency of the
selected measure with other national standards and applicable laws. The
benefits of minimizing bycatch to the extent practicable should be
identified and an assessment of the impact of the selected measure on
bycatch and bycatch mortality provided. Due to limitations on the
information available, fishery managers may not be able to generate
precise estimates of bycatch and bycatch mortality or other effects for
each alternative. In the absence of quantitative estimates of the
impacts of each alternative, Councils may use qualitative measures.
Information on the amount and type of bycatch should be summarized in
the SAFE reports.
(3) Select measures that, to the extent practicable, will minimize
bycatch and bycatch mortality. (i) A determination of whether a
conservation and management measure minimizes bycatch or bycatch
mortality to the extent practicable, consistent with other national
standards and maximization of net benefits to the Nation, should
consider the following factors:
(A) Population effects for the bycatch species.
[[Page 43]]
(B) Ecological effects due to changes in the bycatch of that species
(effects on other species in the ecosystem).
(C) Changes in the bycatch of other species of fish and the
resulting population and ecosystem effects.
(D) Effects on marine mammals and birds.
(E) Changes in fishing, processing, disposal, and marketing costs.
(F) Changes in fishing practices and behavior of fishermen.
(G) Changes in research, administration, and enforcement costs and
management effectiveness.
(H) Changes in the economic, social, or cultural value of fishing
activities and nonconsumptive uses of fishery resources.
(I) Changes in the distribution of benefits and costs.
(J) Social effects.
(ii) The Councils should adhere to the precautionary approach found
in the Food and Agriculture Organization of the United Nations (FAO)
Code of Conduct for Responsible Fisheries (Article 6.5), which is
available from the Director, Publications Division, FAO, Viale delle
Terme di Caracalla, 00100 Rome, Italy, when faced with uncertainty
concerning any of the factors listed in this paragraph (d)(3).
(4) Monitor selected management measures. Effects of implemented
measures should be evaluated routinely. Monitoring systems should be
established prior to fishing under the selected management measures.
Where applicable, plans should be developed and coordinated with
industry and other concerned organizations to identify opportunities for
cooperative data collection, coordination of data management for cost
efficiency, and avoidance of duplicative effort.
(e) Other considerations. Other applicable laws, such as the MMPA,
the ESA, and the Migratory Bird Treaty Act, require that Councils
consider the impact of conservation and management measures on living
marine resources other than fish; i.e., marine mammals and birds.
[63 FR 24235, May 1, 1998]
Sec. 600.355 National Standard 10--Safety of Life at Sea.
(a) Standard 10. Conservation and management measures shall, to the
extent practicable, promote the safety of human life at sea.
(b) General. (1) Fishing is an inherently dangerous occupation where
not all hazardous situations can be foreseen or avoided. The standard
directs Councils to reduce that risk in crafting their management
measures, so long as they can meet the other national standards and the
legal and practical requirements of conservation and management. This
standard is not meant to give preference to one method of managing a
fishery over another.
(2) The qualifying phrase ``to the extent practicable'' recognizes
that regulation necessarily puts constraints on fishing that would not
otherwise exist. These constraints may create pressures on fishermen to
fish under conditions that they would otherwise avoid. This standard
instructs the Councils to identify and avoid those situations, if they
can do so consistent with the legal and practical requirements of
conservation and management of the resource.
(3) For the purposes of this national standard, the safety of the
fishing vessel and the protection from injury of persons aboard the
vessel are considered the same as ``safety of human life at sea. The
safety of a vessel and the people aboard is ultimately the
responsibility of the master of that vessel. Each master makes many
decisions about vessel maintenance and loading and about the
capabilities of the vessel and crew to operate safely in a variety of
weather and sea conditions. This national standard does not replace the
judgment or relieve the responsibility of the vessel master related to
vessel safety. The Councils, the USCG, and NMFS, through the
consultation process of paragraph (d) of this section, will review all
FMPs, amendments, and regulations during their development to ensure
they recognize any impact on the safety of human life at sea and
minimize or mitigate that impact where practicable.
(c) Safety considerations. The following is a non-inclusive list of
safety
[[Page 44]]
considerations that should be considered in evaluating management
measures under national standard 10.
(1) Operating environment. Where and when a fishing vessel operates
is partly a function of the general climate and weather patterns of an
area. Typically, larger vessels can fish farther offshore and in more
adverse weather conditions than smaller vessels. An FMP should try to
avoid creating situations that result in vessels going out farther,
fishing longer, or fishing in weather worse than they generally would
have in the absence of management measures. Where these conditions are
unavoidable, management measures should mitigate these effects,
consistent with the overall management goals of the fishery.
(2) Gear and vessel loading requirements. A fishing vessel operates
in a very dynamic environment that can be an extremely dangerous place
to work. Moving heavy gear in a seaway creates a dangerous situation on
a vessel. Carrying extra gear can also significantly reduce the
stability of a fishing vessel, making it prone to capsizing. An FMP
should consider the safety and stability of fishing vessels when
requiring specific gear or requiring the removal of gear from the water.
Management measures should reflect a sensitivity to these issues and
provide methods of mitigation of these situations wherever possible.
(3) Limited season and area fisheries. Fisheries where time
constraints for harvesting are a significant factor and with no
flexibility for weather, often called ``derby'' fisheries, can create
serious safety problems. To participate fully in such a fishery,
fishermen may fish in bad weather and overload their vessel with catch
and/or gear. Where these conditions exist, FMPs should attempt to
mitigate these effects and avoid them in new management regimes, as
discussed in paragraph (e) of this section.
(d) Consultation. During preparation of any FMP, FMP amendment, or
regulation that might affect safety of human life at sea, the Council
should consult with the USCG and the fishing industry as to the nature
and extent of any adverse impacts. This consultation may be done through
a Council advisory panel, committee, or other review of the FMP, FMP
amendment, or regulations. Mitigation, to the extent practicable, and
other safety considerations identified in paragraph (c) of this section
should be included in the FMP.
(e) Mitigation measures. There are many ways in which an FMP may
avoid or provide alternative measures to reduce potential impacts on
safety of human life at sea. The following is a list of some factors
that could be considered when management measures are developed:
(1) Setting seasons to avoid hazardous weather.
(2) Providing for seasonal or trip flexibility to account for bad
weather (weather days).
(3) Allowing for pre- and post-season ``soak time'' to deploy and
pick up fixed gear, so as to avoid overloading vessels with fixed gear.
(4) Tailoring gear requirements to provide for smaller or lighter
gear for smaller vessels.
(5) Avoiding management measures that require hazardous at-sea
inspections or enforcement if other comparable enforcement could be
accomplished as effectively.
(6) Limiting the number of participants in the fishery.
(7) Spreading effort over time and area to avoid potential gear and/
or vessel conflicts.
(8) Implementing management measures that reduce the race for fish
and the resulting incentives for fishermen to take additional risks with
respect to vessel safety.
[63 FR 24236, May 1, 1998]
Subpart E--Confidentiality of Statistics
Sec. 600.405 Types of statistics covered.
NOAA is authorized under the Magnuson-Stevens Act and other statutes
to collect proprietary or confidential commercial or financial
information. This part applies to all pertinent data required to be
submitted to the Secretary with respect to any FMP including, but not
limited to, information regarding the type and quantity of fishing gear
used, catch by species in numbers of fish or weight thereof, areas in
[[Page 45]]
which fishing occurred, time of fishing, number of hauls, and the
estimated processing capacity of, and the actual processing capacity
utilized by, U.S. fish processors.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.410 Collection and maintenance of statistics.
(a) General. (1) All statistics required to be submitted to the
Secretary are provided to the Assistant Administrator.
(2) After receipt, the Assistant Administrator will remove all
identifying particulars from the statistics if doing so is consistent
with the needs of NMFS and good scientific practice.
(3) Appropriate safeguards as specified by NOAA Directives, or other
NOAA or NMFS internal procedures, apply to the collection and
maintenance of all statistics, whether separated from identifying
particulars or not, so as to ensure their confidentiality.
(b) Collection agreements with states. (1) The Assistant
Administrator may enter into an agreement with a state authorizing the
state to collect statistics on behalf of the Secretary.
(2) NMFS will not enter into a cooperative collection agreement with
a state unless the state has authority to protect the statistics from
disclosure in a manner at least as protective as these regulations.
Sec. 600.415 Access to statistics.
(a) General. In determining whether to grant a request for access to
confidential data, the following information will be taken into
consideration (also see Sec. 600.130):
(1) The specific types of data required.
(2) The relevance of the data to conservation and management issues.
(3) The duration of time access will be required: continuous,
infrequent, or one-time.
(4) An explanation of why the availability of aggregate or non-
confidential summaries of data from other sources would not satisfy the
requested needs.
(b) Federal employees. Statistics submitted as a requirement of an
FMP and that reveal the identity of the submitter will only be
accessible to the following:
(1) Personnel within NMFS responsible for the collection,
processing, and storage of the statistics.
(2) Federal employees who are responsible for FMP development,
monitoring, and enforcement.
(3) Personnel within NMFS performing research that requires
confidential statistics.
(4) Other NOAA personnel on a demonstrable need-to-know basis.
(5) NOAA/NMFS contractors or grantees who require access to
confidential statistics to perform functions authorized by a Federal
contract or grant.
(c) State personnel. Upon written request, confidential statistics
will only be accessible if:
(1) State employees demonstrate a need for confidential statistics
for use in fishery conservation and management.
(2) The state has entered into a written agreement between the
Assistant Administrator and the head of the state's agency that manages
marine and/or anadromous fisheries. The agreement shall contain a
finding by the Assistant Administrator that the state has
confidentiality protection authority comparable to the Magnuson-Stevens
Act and that the state will exercise this authority to limit subsequent
access and use of the data to fishery management and monitoring
purposes.
(d) Councils. Upon written request by the Council Executive
Director, access to confidential data will be granted to:
(1) Council employees who are responsible for FMP development and
monitoring.
(2) A Council for use by the Council for conservation and management
purposes, with the approval of the Assistant Administrator. In addition
to the information described in paragraph (a) of this section, the
Assistant Administrator will consider the following in deciding whether
to grant access:
(i) The possibility that Council members might gain personal or
competitive advantage from access to the data.
[[Page 46]]
(ii) The possibility that the suppliers of the data would be placed
at a competitive disadvantage by public disclosure of the data at
Council meetings or hearings.
(3) A contractor of the Council for use in such analysis or studies
necessary for conservation and management purposes, with approval of the
Assistant Administrator and execution of an agreement with NMFS as
described by NOAA Administrative Order (NAO) 216-100.
(e) Prohibitions. Persons having access to these data are prohibited
from unauthorized use or disclosure and are subject to the provisions of
18 U.S.C. 1905, 16 U.S.C. 1857, and NOAA/NMFS internal procedures,
including NAO 216-100.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.420 Control system.
(a) The Assistant Administrator maintains a control system to
protect the identity of submitters of statistics required by an FMP. The
control system:
(1) Identifies those persons who have access to the statistics.
(2) Contains procedures to limit access to confidential data to
authorized users.
(3) Provides for safeguarding the data.
(b) This system requires that all persons who have authorized access
to the data be informed of the confidentiality of the data. These
persons are required to sign a statement that they:
(1) Have been informed that the data are confidential.
(2) Have reviewed and are familiar with the procedures to protect
confidential statistics.
Sec. 600.425 Release of statistics.
(a) The Assistant Administrator will not release to the public any
statistics required to be submitted under an FMP in a form that would
identify the submitter, except as required by law.
(b) All requests from the public for statistics submitted in
response to a requirement of an FMP will be processed consistent with
the NOAA FOIA regulations (15 CFR part 903), NAO 205-14, Department of
Commerce Administrative Orders 205-12 and 205-14 and 15 CFR part 4.
(c) NOAA does not release or allow access to confidential
information in its possession to members of Council advisory groups,
except as provided by law.
Subpart F--Foreign Fishing
Sec. 600.501 Vessel permits.
(a) General. (1) Each FFV fishing under the Magnuson-Stevens Act
must have on board a permit issued under this section, unless it is
engaged only in recreational fishing.
(2) Permits issued under this section do not authorize FFV's or
persons to harass, capture, or kill marine mammals. No marine mammals
may be taken in the course of fishing unless that vessel has on board a
currently valid Authorization Certificate under the MMPA. Regulations
governing the taking of marine mammals incidental to commercial fishing
operations are contained in 50 CFR part 229 of this title.
(b) Responsibility of owners and operators. The owners and operators
of each FFV are jointly and severally responsible for compliance with
the Magnuson-Stevens Act, the applicable GIFA, this subpart, and any
permit issued under the Magnuson-Stevens Act and this subpart. The
owners and operators of each FFV bear civil responsibility for the acts
of their employees and agents constituting violations, regardless of
whether the specific acts were authorized or even forbidden by the
employer or principal, and regardless of knowledge concerning the
occurrence.
(c) Activity codes. Permits to fish under this subpart may be issued
by the Assistant Administrator for the activities described in this
paragraph, but the permits may be modified by regulations of this
subpart and by the conditions and restrictions attached to the permit
(see paragraphs (e)(1)(v) and (l) of this section). The Assistant
Administrator may issue a permit, as appropriate, for one or more of the
activity codes listed. Only vessels of nations having a GIFA with the
United States may be issued permits for activity
[[Page 47]]
codes 1 through 9. A GIFA is not required for a vessel to be issued a
permit for activity code 10. The activity codes are described as
follows:
(1) Activity Code 1. Catching, scouting, processing, transshipping,
and supporting foreign vessels. Activity is limited to fish harvested or
to be harvested by foreign vessels in the EEZ.
(2) Activity Code 2. Processing, scouting, transshipping, and
supporting foreign vessels. Activity is limited to fish harvested or to
be harvested by foreign vessels in the EEZ.
(3) Activity Code 3. Transshipping, scouting, and supporting foreign
vessels. Activity is limited to fish harvested or to be harvested by
foreign vessels in the EEZ.
(4) Activity Code 4. Processing, scouting, transshipping, and
supporting U.S. vessels delivering fish to foreign vessels. Activity is
limited to the receipt of unprocessed fish harvested or to be harvested
by U.S. vessels.
(5) Activity Code 5. Transshipping, scouting, and supporting foreign
vessels. Transshipment limited to fish received or to be received from
foreign vessels processing fish from U.S. harvesting vessels.
(6) Activity Code 6. Transshipping, scouting, and supporting U.S.
vessels. Transshipment limited to U.S.-harvested fish processed on board
U.S. vessels.
(7) Activity Code 7. Processing, transshipping, and supporting
foreign vessels. Activity limited to fish harvested or to be harvested
by foreign vessels seaward of the EEZ.
(8) Activity Code 8. Transshipping and supporting foreign vessels.
Activity is limited to fish harvested or to be harvested seaward of the
EEZ by foreign vessels or fish duly authorized for processing in the
internal waters of one of the states.
(9) Activity Code 9. Supporting U.S. fishing vessels and U.S. fish
processing vessels and any foreign fishing vessels authorized under any
activity code under paragraph (c) of this subpart.
(10) Activity Code 10. Transshipping at sea for the purpose of
transporting fish or fish products from a point within the EEZ or, with
the concurrence of a state, within the boundaries of that state, to a
point outside the United States.
(d) Application. (1) Applications for FFV permits authorizing
activity codes 1 through 9 must be submitted by an official
representative of a foreign nation to the DOS. Applications for permits
authorizing activity codes 1 through 9 are available from, and should be
submitted to, DOS, OES/OMC, Washington, DC 20520. Applications for FFV
permits authorizing activity code 10 may be submitted by any person to
the Assistant Administrator. Applications for permits authorizing
activity code 10 are available from NMFS, Attn: International Fisheries
Division, 1315 East West Highway, Silver Spring, Maryland 20910. All
applicants should allow 90 days for review and comment by the public,
involved governmental agencies, and appropriate Councils and for
processing before the anticipated date to begin fishing. The permit
application fee must be paid at the time of application according to
Sec. 600.518.
(2) Applicants must provide complete and accurate information
requested on the permit application form.
(3) Applicants for FFV's that will support U.S. vessels in joint
ventures (Activity Code 4) must provide the additional information
specified by the permit application form.
(4) Each applicant may request to substitute one FFV for another of
the same flag by submitting a new application form and a short
explanation of the reason for the substitution to the appropriate
address listed at paragraph (d)(1) of this section. Each substitution is
considered a new application, and a new application fee must be paid.
NMFS will promptly process an application for a vessel replacing a
permitted FFV that is disabled or decommissioned, once the appropriate
Council(s) and governmental agencies have been notified of the
substituted application.
(e) Issuance. (1) Permits may be issued to an FFV by the Assistant
Administrator after--
(i) The Assistant Administrator determines that the fishing
described in the application will meet the requirements of the Magnuson-
Stevens Act and approves the permit application.
[[Page 48]]
(ii) The applicant has paid the fees and provided any assurances
required by the Secretary in accordance with the provisions of
Sec. 600.518.
(iii) The applicant has appointed an agent.
(iv) The applicant has identified a designated representative.
(v) The applicant has accepted the general ``conditions and
restrictions'' of receiving permits, as required by section 204(b)(7) of
the Magnuson-Stevens Act, and any ``additional restrictions'' attached
to the permit for the conservation and management of fishery resources
or for the prevention of significant impairment of the national defense
or security interests.
(2) The DOS will provide permits for activity codes 1 through 9 to
the official representative of the applicant foreign nation. The
Assistant Administrator will provide permits for activity code 10
directly to the applicant.
(3) An approved permit will contain--
(i) The name and IRCS of the FFV and its permit number.
(ii) The permitted fisheries and/or activity codes.
(iii) The date of issuance and expiration date, if other than
December 31.
(iv) All conditions and restrictions, and any additional
restrictions and technical modifications appended to the permit.
(4) Permits are not issued for boats that are launched from larger
vessels. Any enforcement action that results from the activities of a
launched boat will be taken against the permitted vessel.
(f) Duration. A permit is valid from its date of issuance to its
date of expiration, unless it is revoked or suspended or the nation
issuing the FFV's documents does not accept amendments to the permit
made by the Assistant Administrator in accordance with the procedures of
paragraph (l) of this section. The permit will be valid for no longer
than the calendar year in which it was issued.
(g) Transfer. Permits are not transferable or assignable. A permit
is valid only for the FFV to which it is issued.
(h) Display. Each FFV operator must have a properly completed permit
form available on board the FFV when engaged in fishing activities and
must produce it at the request of an authorized officer or observer.
(i) Suspension and revocation. NMFS may apply sanctions to an FFV's
permit by revoking, suspending, or imposing additional permit
restrictions on the permit under 15 CFR part 904, if the vessel is
involved in the commission of any violation of the Magnuson-Stevens Act,
the GIFA, or this subpart; if an agent and a designated representative
are not maintained in the United States; if a civil penalty or criminal
fine imposed under the Magnuson-Stevens Act has become overdue; or as
otherwise specified in the Magnuson-Stevens Act.
(j) Fees. Permit application fees are described in Sec. 600.518.
(k) Change in application information. The applicant must report, in
writing, any change in the information supplied under paragraph (d) of
this section to the Assistant Administrator within 15 calendar days
after the date of the change. Failure to report a change in the
ownership from that described in the current application within the
specified time frame voids the permit, and all penalties involved will
accrue to the previous owner.
(l) Permit amendments. (1) The Assistant Administrator may amend a
permit by adding ``additional restrictions'' for the conservation and
management of fishery resources covered by the permit, or for the
national defense or security if the Assistant Administrator determines
that such interests would be significantly impaired without such
restrictions. Compliance with the added additional restrictions is a
condition of the permit. Violations of added additional restrictions
will be treated as violations of this subpart.
(2) The Assistant Administrator may make proposed additional
restrictions effective immediately, if necessary, to prevent substantial
harm to a fishery resource of the United States, to allow for the
continuation of ongoing fishing operations, or to allow for fishing to
begin at the normal time for opening of the fishery.
(3) The Assistant Administrator will send proposed additional
restrictions to each Nation whose vessels are affected (via the
Secretary of State), to the appropriate Councils, and to the
[[Page 49]]
Commandant of the Coast Guard. NMFS will, at the same time, publish a
document of any significant proposed additional restrictions in the
Federal Register. The document will include a summary of the reasons
underlying the proposal, and the reasons that any proposed additional
restrictions are made effective immediately.
(4) The Nation whose vessels are involved, the owners of the
affected vessels, their representatives, the agencies specified in
paragraph (l)(3) of this section, and the public may submit written
comments on the proposed additional restrictions within 30 days after
publication in the Federal Register.
(5) The Assistant Administrator will make a final decision regarding
the proposed additional restrictions as soon as practicable after the
end of the comment period. The Assistant Administrator will provide the
final additional restrictions to the Nation whose vessels are affected
(via the Secretary of State) according to the procedures of paragraph
(e) of this section. The Assistant Administrator will include with the
final additional restrictions to the Nation, a response to comments
submitted.
(6) Additional restrictions may be modified by following the
procedures of paragraphs (l)(2) through (l)(5) of this section.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39019, July 21, 1999]
Sec. 600.502 Vessel reports.
(a) The operator of each FFV must report the FFV's activities to the
USCG and NMFS as specified in this section.
(b) All reports required by this section must be in English and in
the formats specified in the permit additions and restrictions. Reports
must be delivered via private or commercial communications facilities,
facsimile, or other electronic means acceptable to NMFS and the USCG,
directly to the appropriate NMFS Region or Center and USCG commander.
Weekly reports must also be delivered directly to the appropriate NMFS
Region or Center (see tables 1 and 2 of this section). (The required
reports may be delivered to the closest USCG communication station as
indicated in table 3 of this section or other USCG communication station
only if adequate private or commercial communications facilities have
not been successfully contacted.) Radio reports must be made via
radiotelegraphy, Telex, or facsimile where available. For the purposes
of this section, a message is considered ``transmitted'' when its
receipt is acknowledged by a communications facility and considered
``delivered'' upon its receipt by the offices of the appropriate USCG
commander, NMFS Regional Office, or NMFS Center identified in table 2 of
this section. Reports required by this section may be submitted by the
vessel's designated representative; however, the operator of the FFV is
responsible for the correct and timely filing of all required reports.
(c) Activity reports. The operator of each FFV must report the FFV's
movements and activities before or upon the event, as specified in this
paragraph (c). Appropriate forms, instructions, codes, and examples are
contained in the conditions and restrictions of the FFV's permit. Each
FFV report must contain the following information: The message
identifier ``VESREP'' to indicate it is a vessel activity report, FFV
name, international radio call sign IRCS, date (month and day based on
GMT), time (hour and minute GMT), position (latitude and longitude to
the nearest degree and minute) where required, area (by fishing area
code) where required, the appropriate action code, confirmation codes
where required, and the other information specified in paragraphs (c)(1)
through (c)(11) of this section.
(1) ``BEGIN''. Each operator must specify the date, time, position,
and area the FFV will actually ``BEGIN'' fishing in the EEZ and the
species (by species code), product (by product code), and quantity of
all fish and fish products (by product weight to the nearest hundredth
of a metric ton) on board when entering the EEZ (action code ``BEGIN'').
The message must be delivered at least 24 hours before the vessel begins
to fish.
(2) ``DEPART''. Each operator must specify the date, time, position,
and area the FFV will ``DEPART'' the EEZ to embark or debark an
observer, to
[[Page 50]]
visit a U.S. port, to conduct a joint venture in internal waters, or to
otherwise temporarily leave an authorized fishing area, but not depart
the seaward limit of the EEZ (action code ``DEPART''). The message must
be transmitted before the FFV departs the present fishing area and
delivered within 24 hours of its transmittal.
(3) ``RETURN''. Each operator must specify the date, time, position,
and area the FFV will ``RETURN'' to the EEZ following a temporary
departure, and the species (by species code), product (by product code),
and quantity of all fish and fish products (by product weight to the
nearest hundredth of a metric ton) on board that were received in a
joint venture in internal waters (action code ``RETURN''). The message
must be transmitted before returning to the EEZ and delivered within 24
hours of its transmittal.
(4) ``SHIFT''. Each operator must report each SHIFT in fishing area
(as described for each fishery) by specifying the date, time, and
position the FFV will start fishing, and the new area (action code
``SHIFT''). The message must be transmitted before leaving the original
area and delivered within 24 hours of its transmittal. If a foreign
vessel operates within 20 nautical miles (37.04 km) of a fishing area
boundary, its operator may submit in one message the shift reports for
all fishing area shifts occurring during 1 fishing day (0001-2400 GMT).
This message must be transmitted prior to the last shift expected to be
made in the day and delivered within 24 hours of its transmittal.
(5) ``JV OPS''. Each operator must specify the date, time, position,
and area at which the FFV will ``START'' joint venture operations
(action code ``START JV OPS'') or ``END'' joint venture operations
(action code ``END JV OPS''). These reports must be made in addition to
other activity reports made under this section. Each message must be
transmitted before the event and delivered within 24 hours of its
transmittal.
(6) ``TRANSFER''. The operator of each FFV that anticipates a
transshipping operation in which the FFV will receive fish or fisheries
products must specify the date, time, position and area the FFV will
conduct the ``TRANSFER'' and the name and IRCS of the other FFV or U.S.
vessel involved (action code ``TRANSFER''). The report must include the
permit activity code under which the transfer will be made. The message
must be transmitted prior to the transfer and delivered within 24 hours
of its transmittal. The movement of raw fish from a permitted foreign
catching vessel or, under an Activity Code 4, from a U.S. fishing vessel
to the reporting processing vessel and the return of nets or codends is
not considered a transfer.
(7) ``OFFLOADED''. Each operator must specify the date, time,
position, and area the FFV ``OFFLOADED'' fish or fisheries products TO
another FFV or a U.S. vessel in a transfer, the other FFV's or U.S.
vessel's name, IRCS, Permit Activity Code under which the transfer was
made, species (by species code) and quantity of fish and fisheries
products (by product code and by product weight, to the nearest
hundredth of a metric ton) offloaded (action code ``OFFLOADED TO''). The
message must be transmitted within 12 hours after the transfer is
completed and delivered within 24 hours of its transmittal and before
the FFV ceases fishing in the EEZ.
(8) ``RECEIVED''. Each operator must specify the date, time,
position and area the vessel ``RECEIVED'' fish or fisheries products
FROM another FFV in a transfer, the other FFV's or U.S. vessel's name,
IRCS, Permit Activity Code under which the receipt was made, species (by
species code) and quantity of fish and fisheries products (by product
code and by product weight, to the nearest hundredth of a metric ton)
received (action code ``RECEIVED FROM''). The message must be
transmitted within 12 hours after the transfer is completed and
delivered within 24 hours of its transmittal and before the vessel
ceases fishing in the EEZ.
(9) ``CEASE''. Each operator must specify the date, time, position,
and area the FFV will ``CEASE'' fishing in order to leave the EEZ
(action code ``CEASE''). The message must be delivered at least 24 hours
before the FFV's departure.
(10) ``CHANGE''. Each operator must report any ``CHANGE'' TO the
FFV's
[[Page 51]]
operations if the position or time of an event specified in an activity
report will vary more than 5 nautical miles (9.26 km) or 4 hours from
that previously reported, by sending a revised message inserting the
word ``CHANGE'' in front of the previous report, repeating the name,
IRCS, date, and time of the previous report, adding the word ``TO'' and
the complete revised text of the new report (action code ``CHANGE TO'').
Changes to reports specifying an early beginning of fishing by an FFV or
other changes to reports contained in paragraphs (c)(1) through (c)(9)
of this section must be transmitted and delivered as if the ``CHANGE''
report were the original message.
(11) ``CANCEL''. Each operator wanting to ``CANCEL'' a previous
report may do so by sending a revised message, and inserting the word
``CANCEL'' in front of the previous report's vessel name, IRCS, date,
time and action code canceled (action code ``CANCEL''). The message must
be transmitted and delivered prior to the date and time of the event in
the original message.
(d) The operator of an FFV will be in violation of paragraphs (c)(1)
through (c)(9) of this section if the FFV does not pass within 5
nautical miles (9.26 km) of the position given in the report within 4
hours of the time given in the report.
(e) The notices required by this section may be provided for
individual or groups of FFV's (on a vessel-by-vessel basis) by
authorized persons. An FFV operator may retransmit reports on the behalf
of another FFV, if authorized by that FFV's operator. This does not
relieve the individual vessel operator of the responsibility of filing
required reports. In these cases, the message format should be modified
so that each line of text under ``VESREP'' is a separate vessel report.
(f) Weekly reports. (1) The operator of each FFV in the EEZ must
submit appropriate weekly reports through the Nation's designated
representative. The report must arrive at the address and time specified
in paragraph (g) of this section. The reports may be sent by facsimile
or Telex, but a completed copy of the report form must be mailed or hand
delivered to confirm the Telex. Appropriate forms, instructions, codes,
and examples are contained in the conditions and restrictions of the
FFV's permit. Designated representatives may include more than one
vessel report in a facsimile or Telex message, if the information is
submitted on a vessel-by-vessel basis. Requests for corrections to
previous reports must be submitted through the Nation's designated
representative and mailed or hand-delivered, together with a written
explanation of the reasons for the errors. The appropriate Regional
Administrator or Science and Research Director may accept or reject any
correction and initiate any appropriate civil penalty actions.
(2) Weekly catch report (CATREP). The operator of each FFV must
submit a weekly catch report stating any catch (Activity Code 1) in
round weight of each species or species group allocated to that Nation
by area and days fished in each area for the weekly period Sunday
through Saturday, GMT, as modified by the fishery in which the FFV is
engaged. Foreign vessels delivering unsorted, unprocessed fish to a
processing vessel are not required to submit CATREP's, if that
processing vessel (Activity Code 2) submits consolidated CATREP's for
all fish received during each weekly period. No report is required for
FFV's that do not catch or receive foreign-caught fish during the
reporting period.
(3) Weekly receipts report (RECREP). The operator of each FFV must
submit a weekly report stating any receipts of U.S.-harvested fish in a
joint venture (Activity Code 4) for the weekly period Sunday through
Saturday, GMT, as modified by the fishery in which the FFV is engaged,
for each fishing area, by authorized or prohibited species or species
group; days fish received; round weight retained or returned to the U.S.
fishing vessel; number of codends received; and number of vessels
transferring codends. The report must also include the names of U.S.
fishing vessels transferring codends during the week. No report is
required for FFV's that do not receive any U.S.-harvested fish during
the reporting period.
(4) Marine mammal report (MAMREP). The operator of each FFV must
submit a weekly report stating any incidental
[[Page 52]]
catch or receipt of marine mammals (Activity Codes 1 or 2 and/or 4), the
geographical position caught, the condition of the animal, number caught
(if more than one of the same species and condition), and nationality of
the catching vessel for the period Sunday through Saturday, GMT, as
modified by the fishery in which the vessel is engaged. Foreign catching
vessels delivering unsorted, unprocessed fish to processing vessel are
not required to submit MAMREP's, provided that the processing or factory
vessel (Activity Code 2) submits consolidated MAMREP's for all fish
received during each weekly period. FFV's receiving U.S.-harvested fish
in a joint venture (Activity Code 4) must submit consolidated reports
for U.S. vessels operating in the joint venture. No report is required
for FFV's that do not catch or receive marine mammals during the
reporting period.
(g) Submission instructions for weekly reports. The designated
representative for each FFV must submit weekly reports in the prescribed
format to the appropriate Regional Administrator or Science and Research
Director of NMFS by 1900 GMT on the Wednesday following the end of the
reporting period. However, by agreement with the appropriate Regional
Administrator or Science and Research Director, the designated
representative may submit weekly reports to some other facility of NMFS.
(h) Alternative reporting procedures. As an alternative to the use
of the specific procedures provided, an applicant may submit proposed
reporting procedures for a general type of fishery operation (i.e.,
transshipments under Activity Code 10) to the appropriate Regional
Administrator and the USCG commander (see tables 1 and 2 to Sec. 600.502
of this chapter). With the agreement of the USCG commander, the Regional
Administrator may authorize the use of alternative reporting procedures.
Table 1 to Sec. 600.502--Addresses
------------------------------------------------------------------------
NMFS science and U.S. Coast Guard
NMFS regional administrators research directors commanders
------------------------------------------------------------------------
Administrator, Northeast Director, Notheast Commander, Atlantic
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, NOAA, Center, National Guard, 431 Crawford
One Blackburn Drive, Marine Fisheries St., Portsmouth, VA
Gloucester, MA 01930-2298. Service, NOAA, 166 23704.
Water St., Woods
Hole, MA 02543-1097.
Administrator, Southeast Director, Southeast Commander, Atlantic
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, 9721 Center, National Guard, Governor's
Exec. Center Drive N., St. Marine Fisheries Island, New York
Petersburg, FL 33702. Service, NOAA, 75 10004.
Virginia Beach
Drive, Miami, FL
33149-1003.
Administrator, Northwest Director, Northwest Commander, Pacific
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, NOAA, Center, National Guard, Government
7600 Sand Point Way, NE, Marine Fisheries Island, Alameda, CA
BIN C15700, Bldg. 1, Service, NOAA, 2725 94501.
Seattle, WA 98115. Montlake Blvd.
East, Seattle, WA
98112-2097.
Administrator, Alaska Director, Alaska Commander,
Region, National Marine Fisheries Science Seventeenth Coast
Fisheries Service, NOAA, Center, National Guard District,
P.O. Box 21668, Juneau, AK Marine Fisheries P.O. Box 25517,
99802-1668. Service, NOAA, 7600 Juneau, AK 99802.
Sand Point Way, NE,
BIN C15700, Bldg.
4, Seattle, WA
98115-0070.
Administrator, Southwest Director, Southwest Commander,
Region, National Marine Fisheries Science Fourteenth Coast
Fisheries Service, NOAA, Center, National Guard District, 300
501 West Ocean Blvd., Suite Marine Fisheries Ala Moana Blvd.,
4200, Long Beach, CA 90802- Service, NOAA, P.O. Honolulu, HI 96850.
4213. Box 271, La Jolla,
CA 92038-0271.
------------------------------------------------------------------------
Table 2 to Sec. 600.502--Areas of Responsibility of NMFS and U.S. Coast
Guard Offices
------------------------------------------------------------------------
Area of responsibility/ National Marine
fishery Fisheries Service U.S. Coast Guard
------------------------------------------------------------------------
Atlantic Ocean North of Cape Director, Northeast Commander, Atlantic
Hatteras. Science Center, Area.
Attn: Observer
Program.
Atlantic Ocean South of Cape Director, Northeast Commander, Atlantic
Hatteras. Science Center, Area.
Attn: Observer
Program.
Atlantic Tunas, Swordfish, Director, Office of Commander, Atlantic
Billfish and Sharks. Sustainable Area.
Fisheries.
Gulf of Mexico and Caribbean Administrator, Commander, Atlantic
Sea. Southeast Region. Area.
Pacific Ocean off the States Administrator, Commander, Pacific
of California, Oregon, and Northwest Region. Area.
Washington.
[[Page 53]]
North Pacific Ocean and Administrator, Commander,
Bering Sea off Alaska. Alaska Region. Seventeenth Coast
Guard District.
Pacific Ocean off Hawaii and Administrator, Commander,
Other U.S. Insular Southwest Region. Fourteenth Coast
Possessions in the Central Guard District.
and Western Pacific.
------------------------------------------------------------------------
Table 3 to Sec. 600.502--U.S. Coast Guard Communications Stations and Frequencies
----------------------------------------------------------------------------------------------------------------
Radiotelephone
U.S. Coast Guard communications ---------------------------------------------------------------------------
station IRCS Channel \1\ GMT time
----------------------------------------------------------------------------------------------------------------
Boston.............................. NMF A-E 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSLANT Chesapeake (Portsmouth, VA) NMN A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
New Orleans......................... NMG A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSPAC Point Reyes (San Francisco, NMC A-D All.
CA).
...................... E (On request).
Honolulu............................ NMO A-D All.
...................... E (On request).
Kodiak.............................. NOJ A-D All.
...................... E (On request).
----------------------------------------------------------------------------------------------------------------
\1\ Carrier frequencies of duplex, high-frequency single-sideband channels are:
------------------------------------------------------------------------
Letter Shore transmit Ship transmit
------------------------------------------------------------------------
A................................. 4426.0 4134.0
B................................. 6501.0 6200.0
C................................. 8764.0 8240.0
D................................. 13089.0 12242.0
E................................. 17314.0 16432.0
------------------------------------------------------------------------
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64
FR 39020, July 21, 1999]
Sec. 600.503 Vessel and gear identification.
(a) Vessel identification. (1) The operator of each FFV assigned an
IRCS must display that call sign amidships on both the port and
starboard sides of the deckhouse or hull, so that it is visible from an
enforcement vessel, and on an appropriate weather deck so it is visible
from the air.
(2) The operator of each FFV not assigned an IRCS, such as a small
trawler associated with a mothership or one of a pair of trawlers, must
display the IRCS of the associated vessel, followed by a numerical
suffix. (For example, JCZM-1, JCZM-2, etc., would be displayed on small
trawlers not assigned an IRCS operating with a mothership whose IRCS is
JCZM; JANP-1 would be displayed by a pair trawler not assigned an IRCS
operating with a trawler whose IRCS is JANP.)
(3) The vessel identification must be in a color in contrast to the
background and must be permanently affixed to the FFV in block Roman
alphabet letters and Arabic numerals at least 1 m in height for FFV's
over 20 m in length, and at least 0.5 m in height for all other FFV's.
(b) Navigational lights and shapes. Each FFV must display the lights
and shapes prescribed by the International Regulations for Preventing
Collisions at Sea, 1972 (TIAS 8587, and 1981 amendment TIAS 10672), for
the activity in which the FFV is engaged (as described at 33 CFR part
81).
[[Page 54]]
(c) Gear identification. (1) The operator of each FFV must ensure
that all deployed fishing gear that is not physically and continuously
attached to an FFV:
(i) Is clearly marked at the surface with a buoy displaying the
vessel identification of the FFV (see paragraph (a) of this section) to
which the gear belongs.
(ii) Has attached a light visible for 2 nautical miles (3.70 km) at
night in good visibility.
(iii) Has a radio buoy.
Trawl codends passed from one vessel to another are considered
continuously attached gear and are not required to be marked.
(2) The operator of each FFV must ensure that deployed longlines,
strings of traps or pots, and gillnets are marked at the surface at each
terminal end with: (see paragraphs (c)(1)(i) through (c)(1)(iii) of this
section).
(3) Additional requirements may be specified for the fishery in
which the vessel is engaged.
(4) Unmarked or incorrectly identified fishing gear may be
considered abandoned and may be disposed of in accordance with
applicable Federal regulations by any authorized officer.
(d) Maintenance. The operator of each FFV must--
(1) Keep the vessel and gear identification clearly legible and in
good repair.
(2) Ensure that nothing on the FFV obstructs the view of the
markings from an enforcement vessel or aircraft.
(3) Ensure that the proper navigational lights and shapes are
displayed for the FFV's activity and are properly functioning.
Sec. 600.504 Facilitation of enforcement.
(a) General. (1) The owner, operator, or any person aboard any FFV
subject to this subpart must immediately comply with instructions and
signals issued by an authorized officer to stop the FFV; to move the FFV
to a specified location; and to facilitate safe boarding and inspection
of the vessel, its gear, equipment, records, and fish and fish products
on board for purposes of enforcing the Magnuson-Stevens Act and this
subpart.
(2) The operator of each FFV must provide vessel position or other
information when requested by an authorized officer within the time
specified in the request.
(b) Communications equipment. (1) Each FFV must be equipped with a
VHF-FM radiotelephone station located so that it may be operated from
the wheelhouse. Each operator must maintain a continuous listening watch
on channel 16 (156.8 mHz).
(2) Each FFV must be equipped with a radiotelephone station capable
of communicating via 2182 kHz (SSB) radiotelephony and at least one set
of working frequencies identified in table 3 to Sec. 600.502 appropriate
to the fishery in which the FFV is operating. Each operator must monitor
and be ready to communicate via 2182 kHz (SSB) radiotelephone each day
from 0800 GMT to 0830 GMT and 2000 to 2030 GMT, and in preparation for
boarding.
(3) FFV's that are not equipped with processing facilities and that
deliver all catches to a foreign processing vessel are exempt from the
requirements of paragraph (b)(2) of this section.
(4) FFV's with no IRCS that do not catch fish and are used as
auxiliary vessels to handle codends, nets, equipment, or passengers for
a processing vessel are exempt from the requirements of paragraphs
(b)(1) and (b)(2) of this section.
(5) The appropriate Regional Administrator, with the agreement of
the appropriate USCG commander, may, upon request by a foreign nation,
accept alternatives to the radio requirements of this section to certain
FFV's or types of FFV's operating in a fishery, provided they are
adequate for the communications needs of the fishery.
(c) Communications procedures. (1) Upon being approached by a USCG
vessel or aircraft, or other vessel or aircraft with an authorized
officer aboard, the operator of any FFV subject to this subpart must be
alert for communications conveying enforcement instructions. The
enforcement unit may communicate by channel 16 VHF-FM radiotelephone,
2182 kHz (SSB) radiotelephone, message block from an aircraft, flashing
light or flag signals from the International Code of Signals, hand
signal, placard, loudhailer, or
[[Page 55]]
other appropriate means. The following signals, extracted from the
International Code of Signals, are among those that may be used.
(i) ``AA, AA, AA, etc.'', which is the call for an unknown station.
The signaled vessel should respond by identifying itself or by
illuminating the vessel identification required by Sec. 600.505.
(ii) ``RY-CY'', meaning ``You should proceed at slow speed, a boat
is coming to you''.
(iii) ``SQ3'', meaning ``You should stop or heave to; I am going to
board you''.
(iv) ``L'', meaning ``You should stop your vessel instantly.''
(2) Failure of an FFV's operator to stop the vessel when directed to
do so by an authorized officer using VHF-FM radiotelephone (channel 16),
2182 kHz (SSB) radiotelephone (where required), message block from an
aircraft, flashing light signal, flaghoist, or loudhailer constitutes a
violation of this subpart.
(3) The operator of or any person aboard an FFV who does not
understand a signal from an enforcement unit and who is unable to obtain
clarification by radiotelephone or other means must consider the signal
to be a command to stop the FFV instantly.
(d) Boarding. The operator of an FFV signaled for boarding must--
(1) Monitor 2182 kHz (SSB) radiotelephone and channel 16 (156.8 mHz)
VHF-FM radiotelephone.
(2) Stop immediately and lay to or maneuver in such a way as to
maintain the safety of the FFV and facilitate boarding by the authorized
officer and the boarding party or an observer.
(3) Provide the authorized officer, boarding party, or observer a
safe pilot ladder. The operator must ensure the pilot ladder is securely
attached to the FFV and meets the construction requirements of
Regulation 17, Chapter V of the International Convention for the Safety
of Life at Sea (SOLAS), 1974 (TIAS 9700 and 1978 Protocol, TIAS 10009),
or a substantially equivalent national standard approved by letter from
the Assistant Administrator, with agreement with the USCG. Safe pilot
ladder standards are summarized below:
(i) The ladder must be of a single length of not more than 9 m (30
ft), capable of reaching the water from the point of access to the FFV,
accounting for all conditions of loading and trim of the FFV and for an
adverse list of 15 deg.. Whenever the distance from sea level to the
point of access to the ship is more than 9 m (30 ft), access must be by
means of an accommodation ladder or other safe and convenient means.
(ii) The steps of the pilot ladder must be--
(A) Of hardwood, or other material of equivalent properties, made in
one piece free of knots, having an efficient non-slip surface; the four
lowest steps may be made of rubber of sufficient strength and stiffness
or of other suitable material of equivalent characteristics.
(B) Not less than 480 mm (19 inches) long, 115 mm (4.5 inches) wide,
and 25 mm (1 inch) in depth, excluding any non-slip device.
(C) Equally spaced not less than 300 millimeters (12 inches) nor
more than 380 mm (15 inches) apart and secured in such a manner that
they will remain horizontal.
(iii) No pilot ladder may have more than two replacement steps that
are secured in position by a method different from that used in the
original construction of the ladder.
(iv) The side ropes of the ladder must consist of two uncovered
manila ropes not less than 60 mm (2.25 inches) in circumference on each
side (or synthetic ropes of equivalent size and equivalent or greater
strength). Each rope must be continuous, with no joints below the top
step.
(v) Battens made of hardwood, or other material of equivalent
properties, in one piece and not less than 1.80 m (5 ft 10 inches) long
must be provided at such intervals as will prevent the pilot ladder from
twisting. The lowest batten must be on the fifth step from the bottom of
the ladder and the interval between any batten and the next must not
exceed nine steps.
(vi) Where passage onto or off the ship is by means of a bulwark
ladder, two handhold stanchions must be fitted at the point of boarding
or leaving the FFV not less than 0.70 m (2 ft 3 inches) nor more than
0.80 m (2 ft 7 inches) apart, not less than 40 mm (2.5 inches) in
diameter, and must extend not less
[[Page 56]]
than 1.20 m (3 ft 11 inches) above the top of the bulwark.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope, safety line, and
illumination for the ladder; and
(5) Take such other actions as necessary to ensure the safety of the
authorized officer and the boarding party and to facilitate the boarding
and inspection.
(e) Access and records. (1) The owner and operator of each FFV must
provide authorized officers access to all spaces where work is conducted
or business papers and records are prepared or stored, including but not
limited to, personal quarters and areas within personal quarters.
(2) The owner and operator of each FFV must provide to authorized
officers all records and documents pertaining to the fishing activities
of the vessel, including but not limited to, production records, fishing
logs, navigation logs, transfer records, product receipts, cargo stowage
plans or records, draft or displacement calculations, customs documents
or records, and an accurate hold plan reflecting the current structure
of the vessel's storage and factory spaces.
(f) Product storage. The operator of each permitted FFV storing fish
or fish products in a storage space must ensure that all non-fish
product items are neither stowed beneath nor covered by fish products,
unless required to maintain the stability and safety of the vessel.
These items include, but are not limited to, portable conveyors, exhaust
fans, ladders, nets, fuel bladders, extra bin boards, or other movable
non-product items. These items may be in the space when necessary for
safety of the vessel or crew or for storage of the product. Lumber, bin
boards, or other dunnage may be used for shoring or bracing of product
to ensure safety of crew and to prevent shifting of cargo within the
space.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.505 Prohibitions.
(a) It is unlawful for any person to do any of the following:
(1) Ship, transport, offer for sale, sell, purchase, import, export,
or have custody, control, or possession of any fish taken or retained in
violation of the Magnuson-Stevens Act, the applicable GIFA, this
subpart, or any permit issued under this subpart;
(2) Refuse to allow an authorized officer to board an FFV for
purposes of conducting any search or inspection in connection with the
enforcement of the Magnuson-Stevens Act, the applicable GIFA, this
subpart, or any other permit issued under this subpart;
(3) Assault, resist, oppose, impede, intimidate, or interfere with
any authorized officer in the conduct of any inspection or search
described in paragraph (a)(2) of this section;
(4) Resist a lawful arrest for any act prohibited by the Magnuson-
Stevens Act, the applicable GIFA, this subpart, or any permit issued
under this subpart;
(5) Interfere with, delay, or prevent by any means the apprehension
or arrest of another person with the knowledge that such other person
has committed any act prohibited by the Magnuson-Stevens Act, the
applicable GIFA, this subpart, or any permit issued under this subpart;
(6) Interfere with, obstruct, delay, oppose, impede, intimidate, or
prevent by any means any boarding, investigation or search, wherever
conducted, in the process of enforcing the Magnuson-Stevens Act, the
applicable GIFA, this subpart, or any permit issued under this subpart;
(7) Engage in any fishing activity for which the FFV does not have a
permit as required under Sec. 600.501;
(8) Engage in any fishing activity within the EEZ without a U.S.
observer aboard the FFV, unless the requirement has been waived by the
Assistant Administrator or appropriate Regional Administrator;
(9) Retain or attempt to retain, directly or indirectly, any U.S.
harvested fish, unless the FFV has a permit for Activity Codes 4, 6, or
10;
(10) Use any fishing vessel to engage in fishing after the
revocation, or during the period of suspension, of an applicable permit
issued under this subpart;
[[Page 57]]
(11) Violate any provision of the applicable GIFA;
(12) Falsely or incorrectly complete (including by omission) a
permit application or permit form as specified in Sec. 600.501 (d) and
(k);
(13) Fail to report to the Assistant Administrator within 15 days
any change in the information contained in the permit application for a
FFV, as specified in Sec. 600.501(k);
(14) Assault, resist, oppose, impede, intimidate, or interfere with
an observer placed aboard an FFV under this subpart;
(15) Interfere with or bias the sampling procedure employed by an
observer, including sorting or discarding any catch prior to sampling,
unless the observer has stated that sampling will not occur; or tamper
with, destroy, or discard an observer's collected samples, equipment,
records, photographic film, papers, or effects without the express
consent of the observer;
(16) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from collecting samples,
conducting product recovery rate determinations, making observations, or
otherwise performing the observer's duties;
(17) Harass or sexually harass an authorized officer or observer;
(18) Fail to provide the required assistance to an observer as
described at Sec. 600.506 (c) and (e);
(19) Fail to identify, falsely identify, fail to properly maintain,
or obscure the identification of the FFV or its gear as required by this
subpart;
(20) Falsify or fail to make, keep, maintain, or submit any record
or report required by this subpart;
(21) Fail to return to the sea or fail to otherwise treat prohibited
species as required by this subpart;
(22) Fail to report or falsely report any gear conflict;
(23) Fail to report or falsely report any loss, jettisoning, or
abandonment of fishing gear or other article into the EEZ that might
interfere with fishing, obstruct fishing gear or vessels, or cause
damage to any fishery resource or marine mammals;
(24) Continue Activity Codes 1 through 4 after those activity codes
have been canceled under Sec. 600.511;
(25) Fail to maintain health and safety standards set forth in
Sec. 600.506(d);
(26) Violate any provisions of regulations for specific fisheries of
this subpart;
(27) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state, territorial, or
Federal regulations;
(28) Violate any provision of this subpart, the Magnuson-Stevens
Act, the applicable GIFA, any notice issued under this subpart or any
permit issued under this subpart; or
(29) Attempt to do any of the foregoing.
(b) It is unlawful for any FFV, and for the owner or operator of any
FFV except an FFV engaged only in recreational fishing, to fish--
(1) Within the boundaries of any state, unless:
(i) The fishing is authorized by the Governor of that state as
permitted by section 306(c) of the Magnuson-Stevens Act to engage in a
joint venture for processing and support with U.S. fishing vessels in
the internal waters of that state; or
(ii) The fishing is authorized by, and conducted in accordance with,
a valid permit issued under Sec. 600.501, and the Governor of that state
has indicated concurrence to allow fishing consisting solely of
transporting fish or fish products from a point within the boundaries of
that state to a point outside the United States; or
(2) Within the EEZ, or for any anadromous species or continental
shelf fishery resources beyond the EEZ, unless the fishing is authorized
by, and conducted in accordance with, a valid permit issued under
Sec. 600.501.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39020, July 21, 1999]
Sec. 600.506 Observers.
(a) General. To carry out such scientific, compliance monitoring,
and other functions as may be necessary or appropriate to carry out the
purposes of the Magnuson-Stevens Act, the appropriate Regional
Administrator or Science and Research Director (see table 2 to
Sec. 600.502) may assign U.S. observers to FFV's. Except as provided
[[Page 58]]
for in section 201(h)(2) of the Magnuson-Stevens Act, no FFV may conduct
fishing operations within the EEZ unless a U.S. observer is aboard.
(b) Effort plan. To ensure the availability of an observer as
required by this section, the owners and operators of FFV's wanting to
fish within the EEZ will submit to the appropriate Regional
Administrator or Science and Research Director and also to the Chief,
Financial Services Division, NMFS, 1315 East West Highway, Silver
Spring, MD 20910 a schedule of fishing effort 30 days prior to the
beginning of each quarter. A quarter is a time period of 3 consecutive
months beginning January 1, April 1, July 1, and October 1 of each year.
The schedule will contain the name and IRCS of each FFV intending to
fish within the EEZ during the upcoming quarter, and each FFV's expected
date of arrival and expected date of departure.
(1) The appropriate Regional Administrator or Science and Research
Director must be notified immediately of any substitution of vessels or
any cancellation of plans to fish in the EEZ for FFV's listed in the
effort plan required by this section.
(2) If an arrival date of an FFV will vary more than 5 days from the
date listed in the quarterly schedule, the appropriate Regional
Administrator or Science and Research Director must be notified at least
10 days in advance of the rescheduled date of arrival. If the notice
required by this paragraph (b)(2) is not given, the FFV may not engage
in fishing until an observer is available and has been placed aboard the
vessel or the requirement has been waived by the appropriate Regional
Administrator or Science and Research Director.
(c) Assistance to observers. To assist the observer in the
accomplishment of his or her assigned duties, the owner and operator of
an FFV to which an observer is assigned must--
(1) Provide, at no cost to the observer or the United States,
accommodations for the observer aboard the FFV that are equivalent to
those provided to the officers of that vessel.
(2) Cause the FFV to proceed to such places and at such times as may
be designated by the appropriate Regional Administrator or Science and
Research Director for the purpose of embarking and debarking the
observer.
(3) Allow the observer to use the FFV's communications equipment and
personnel upon demand for the transmission and receipt of messages.
(4) Allow the observer access to and use of the FFV's navigation
equipment and personnel upon demand to determine the vessel's position.
(5) Allow the observer free and unobstructed access to the FFV's
bridge, trawl, or working decks, holding bins, processing areas, freezer
spaces, weight scales, cargo holds and any other space that may be used
to hold, process, weigh, or store fish or fish products at any time.
(6) Allow the observer to inspect and copy the FFV's daily log,
communications log, transfer log, and any other log, document, notice,
or record required by these regulations.
(7) Provide the observer copies of any records required by these
regulations upon demand.
(8) Notify the observer at least 15 minutes before fish are brought
on board or fish or fish products are transferred from the FFV to allow
sampling the catch or observing the transfer, unless the observer
specifically requests not to be notified.
(9) Provide all other reasonable assistance to enable the observer
to carry out his or her duties.
(d) Health and safety standards. All foreign fishing vessels to
which an observer is deployed must maintain, at all times that the
vessel is in the EEZ, the following:
(1) At least one working radar.
(2) Functioning navigation lights as required by international law.
(3) A watch on the bridge by appropriately trained and experienced
personnel while the vessel is underway.
(4) Lifeboats and/or inflatable life rafts with a total carrying
capacity equal to or greater than the number of people aboard the
vessel. Lifeboats and inflatable life rafts must be maintained in good
working order and be readily available.
(5) Life jackets equal or greater in number to the total number of
persons aboard the vessel. Life jackets must be
[[Page 59]]
stowed in readily accessible and plainly marked positions throughout the
vessel, and maintained in a state of good repair.
(6) At least one ring life buoy for each 25 ft (7.6 m) of vessel
length, equipped with automatic water lights. Ring life buoys must have
an outside diameter of not more than 32 inches (81.3 cm) nor less than
30 inches (76.2 cm), and must be maintained in a state of good repair.
Ring life buoys must be readily available, but not positioned so they
pose a threat of entanglement in work areas. They must be secured in
such a way that they can be easily cast loose in the event of an
emergency.
(7) At least one VHF-FM radio with a functioning channel 16 (156.8
mHz), International Distress, Safety and Calling Frequency, and one
functioning AM radio (SSB-Single Side Band) capable of operating at 2182
kHz (SSB). Radios will be maintained in a radio room, chartroom, or
other suitable location.
(8) At least one Emergency Position Indicating Radio Beacon (EPIRB),
approved by the USCG for offshore commercial use, stowed in a location
so as to make it readily available in the event of an emergency.
(9) At least six hand-held, rocket-propelled, parachute, red-flare
distress signals, and three orange-smoke distress signals stowed in the
pilothouse or navigation bridge in portable watertight containers.
(10) All lights, shapes, whistles, foghorns, fog bells and gongs
required by and maintained in accordance with the International
Regulations for Preventing Collisions at Sea.
(11) Clean and sanitary conditions in all living spaces, food
service and preparation areas and work spaces aboard the vessel.
(e) Observer transfers. (1) The operator of the FFV must ensure that
transfers of observers at sea via small boat or raft are carried out
during daylight hours as weather and sea conditions allow, and with the
agreement of the observer involved. The FFV operator must provide the
observer 3 hours advance notice of at-sea transfers, so that the
observer may collect personal belongings, equipment, and scientific
samples.
(2) The FFV's involved must provide a safe pilot ladder and conduct
the transfer according to the procedures of Sec. 600.504(d) to ensure
the safety of the during the transfer.
(3) An experienced crew member must assist the observer in the small
boat or raft in which the transfer is made.
(f) Supplementary observers. In the event funds are not available
from Congressional appropriations of fees collected to assign an
observer to a foreign fishing vessel, the appropriate Regional
Administrator or Science and Research Director will assign a
supplementary observer to that vessel. The costs of supplementary
observers will be paid for by the owners and operators of foreign
fishing vessels as provided for in paragraph (h) of this section.
(g) Supplementary observer authority and duties. (1) A supplementary
observer aboard a foreign fishing vessel has the same authority and must
be treated in all respects as an observer who is employed by NMFS,
either directly or under contract.
(2) The duties of supplementary observers and their deployment and
work schedules will be specified by the appropriate Regional
Administrator or Science and Research Director.
(3) All data collected by supplementary observers will be under the
exclusive control of the Assistant Administrator.
(h) Supplementary observer payment--(1) Method of payment. The
owners and operators of foreign fishing vessels must pay directly to the
contractor the costs of supplementary observer coverage. Payment must be
made to the contractor supplying supplementary observer coverage either
by letter of credit or certified check drawn on a federally chartered
bank in U.S. dollars, or other financial institution acceptable to the
contractor. The letter of credit used to pay supplementary observer fees
to contractors must be separate and distinct from the letter of credit
required by Sec. 600.518(b)(2). Billing schedules will be specified by
the terms of the contract between NOAA and the contractors. Billings for
supplementary observer coverage will be approved by
[[Page 60]]
the appropriate Regional Administrator or Science and Research Director
and then transmitted to the owners and operators of foreign fishing
vessels by the appropriate designated representative. Each country will
have only one designated representative to receive observer bills for
all vessels of that country, except as provided for by the Assistant
Administrator. All bills must be paid within 10 working days of the
billing date. Failure to pay an observer bill will constitute grounds to
revoke fishing permits. All fees collected under this section will be
considered interim in nature and subject to reconciliation at the end of
the fiscal year in accordance with paragraph (h)(4) of this section and
Sec. 600.518(d).
(2) Contractor costs. The costs charged for supplementary observer
coverage to the owners and operators of foreign fishing vessels may not
exceed the costs charged to NMFS for the same or similar services,
except that contractors may charge to the owners and operators of
foreign fishing vessels an additional fee to cover the administrative
costs of the program not ordinarily part of contract costs charged to
NMFS. The costs charged foreign fishermen for supplementary observers
may include, but are not limited to the following:
(i) Salary and benefits, including overtime, for supplementary
observers.
(ii) The costs of post-certification training required by paragraph
(j)(2) of this section.
(iii) The costs of travel, transportation, and per diem associated
with deploying supplementary observers to foreign fishing vessels
including the cost of travel, transportation, and per diem from the
supplementary observer's post of duty to the point of embarkation to the
foreign fishing vessel, and then from the point of disembarkation to the
post of duty from where the trip began. For the purposes of these
regulations, the appropriate Regional Administrator or Science and
Research Director will designate posts of duty for supplementary
observers.
(iv) The costs of travel, transportation, and per diem associated
with the debriefing following deployment of a supplementary observer by
NMFS officials.
(v) The administrative and overhead costs incurred by the contractor
and, if appropriate, a reasonable profit.
(3) NMFS costs. The owners and operators of foreign fishing vessels
must also pay to NMFS as part of the surcharge required by section
201(i)(4) of the Magnuson-Stevens Act, the following costs:
(i) The costs of certifying applicants for the position of
supplementary observer.
(ii) The costs of any equipment, including safety equipment,
sampling equipment, operations manuals, or other texts necessary to
perform the duties of a supplementary observer. The equipment will be
specified by the appropriate Regional Administrator or Science and
Research Director according to the requirements of the fishery to which
the supplementary observer will be deployed.
(iii) The costs associated with communications with supplementary
observers for transmission of data and routine messages.
(iv) For the purposes of monitoring the supplementary observer
program, the costs for the management and analysis of data.
(v) The costs for data editing and entry.
(vi) Any costs incurred by NMFS to train, deploy or debrief a
supplementary observer.
(vii) The cost for U.S. Customs inspection for supplementary
observers disembarking after deployment.
(4) Reconciliation. Fees collected by the contractor in excess of
the actual costs of supplementary observer coverage will be refunded to
the owners and operators of foreign fishing vessels, or kept on deposit
to defray the costs of future supplementary observer coverage. Refunds
will be made within 60 days after final costs are determined and
approved by NMFS.
(i) Supplementary observer contractors--(1) Contractor eligibility.
Supplementary observers will be obtained by NMFS from persons or firms
having established contracts to provide NMFS with observers. In the
event no such contract is in place, NMFS will use established,
competitive contracting procedures to select persons or firms to provide
supplementary observers. The services supplied by the supplementary
[[Page 61]]
observer contractors will be as described within the contract and as
specified below.
(2) Supplementary observer contractors must submit for the approval
of the Assistant Administrator the following:
(i) A copy of any contract, including all attachments, amendments,
and enclosures thereto, between the contractor and the owners and
operators of foreign fishing vessels for whom the contractor will
provide supplementary observer services.
(ii) All application information for persons whom the contractor
desires to employ as certified supplementary observers.
(iii) Billing schedules and billings to the owners and operators of
foreign fishing vessels for further transmission to the designated
representative of the appropriate foreign nation.
(iv) All data on costs.
(j) Supplementary observers--certification, training--(1)
Certification. The appropriate Regional Administrator or Science and
Research Director will certify persons as qualified for the position of
supplementary observer once the following conditions are met:
(i) The candidate is a citizen or national of the United States.
(ii) The candidate has education or experience equivalent to the
education or experience required of persons used as observers by NMFS as
either Federal personnel or contract employees. The education and
experience required for certification may vary according to the
requirements of managing the foreign fishery in which the supplementary
observer is to be deployed. Documentation of U.S. citizenship or
nationality, and education or experience will be provided from personal
qualification statements on file with NMFS contractors who provide
supplementary observer services, and will not require the submission of
additional information to NMFS.
(2) Training. Prior to deployment to foreign fishing vessels,
certified supplementary observers must also meet the following
conditions:
(i) Each certified supplementary observer must satisfactorily
complete a course of training approved by the appropriate Regional
Administrator or Science and Research Director as equivalent to that
received by persons used as observers by NMFS as either Federal
personnel or contract employees. The course of training may vary
according to the foreign fishery in which the supplementary observer is
to be deployed.
(ii) Each certified supplementary observer must agree in writing to
abide by standards of conduct as set forth in Department of Commerce
Administrative Order 202-735 (as provided by the contractor).
(k) Supplementary observer certification suspension or revocation.
(1) Certification of a supplementary observer may be suspended or
revoked by the Assistant Administrator under the following conditions:
(i) A supplementary observer fails to perform the duties specified
in paragraph (g)(2) of this section.
(ii) A supplementary observer fails to abide by the standards of
conduct described by Department of Commerce Administrative Order 202-
735.
(2) The suspension or revocation of the certification of a
supplementary observer by the Assistant Administrator may be based on
the following:
(i) Boarding inspection reports by authorized officers of the USCG
or NMFS, or other credible information, that indicate a supplementary
observer has failed to abide by the established standards of conduct; or
(ii) An analysis by NMFS of the data collected by a supplementary
observer indicating improper or incorrect data collection or recording.
The failure to properly collect or record data is sufficient to justify
decertification of supplementary observers; no intent to defraud need be
demonstrated.
(3) The Assistant Administrator will notify the supplementary
observer, in writing, of the Assistant Administrator's intent to suspend
or revoke certification, and the reasons therefor, and provide the
supplementary observer a reasonable opportunity to respond. If the
Assistant Administrator determines that there are disputed questions of
material fact, then the Assistant Administrator may in this respect
appoint an examiner to make an
[[Page 62]]
informal fact-finding inquiry and prepare a report and recommendations.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7074, 7075, Feb. 12,
1998; 64 FR 39020, July 21, 1999]
Sec. 600.507 Recordkeeping.
(a) General. The owner and operator of each FFV must maintain timely
and accurate records required by this section as modified by the
regulations for the fishery in which the FFV is engaged.
(1) The owner and operator of each FFV must maintain all required
records in English, based on Greenwich mean time (GMT) unless otherwise
specified in the regulation, and make them immediately available for
inspection upon the request of an authorized officer or observer.
(2) The owner and operator of each FFV must retain all required
records on board the FFV whenever it is in the EEZ, for 3 years after
the end of the permit period.
(3) The owner and operator of each FFV must retain the required
records and make them available for inspection upon the request of an
authorized officer at any time during the 3 years after the end of the
permit period, whether or not such records are on board the vessel.
(4) The owner and operator of each FFV must provide to the Assistant
Administrator, in the form and at the times prescribed, any other
information requested that the Assistant Administrator determines is
necessary to fulfill the fishery conservation, management and
enforcement purposes of the Magnuson-Stevens Act.
(b) Communications log. The owner and operator of each FFV must
record in a separate communications log, at the time of transmittal, the
time and content of each notification made under Sec. 600.504.
(c) Transfer log. Except for the transfer of unsorted, unprocessed
fish via codend from a catching vessel to a processing vessel (Activity
Code 2 or 4), the owner and operator of each FFV must record, in a
separate transfer log, each transfer or receipt of any fish or fishery
product, including quantities transferred or offloaded outside the EEZ.
The operator must record in the log within 12 hours of the completion of
the transfer:
(1) The time and date (GMT) and location (in geographic coordinates)
the transfer began and was completed.
(2) The product weight, by species and product (use species and
product codes), of all fish transferred, to the nearest 0.01 mt.
(3) The name, IRCS, and permit number of both the FFV offloading the
fish and the FFV receiving the fish.
(d) Daily fishing log. (1) The owner or operator of each FFV
authorized to catch fish (Activity Code 1) must maintain a daily fishing
log of the effort, catch and production of the FFV, as modified by
paragraph (d)(2) of this section and the regulations for the fishery in
which the FFV is engaged. The operator must maintain on a daily and
cumulative basis for the permit period a separate log for each fishery
(see table 2 to Sec. 600.502) in which the FFV is engaged according to
this section and in the format specified in the instructions provided
with the permit or other format authorized under paragraph (i) of this
section. Daily effort entries are required for each day the vessel
conducts fishing operations within the EEZ. Daily entries are not
required whenever the FFV is in port or engaged in a joint venture in
the internal waters of a state. Each page of log may contain entries
pertaining to only one day's fishing operations or one gear set,
whichever is longer.
(2) The owner or operator of each FFV authorized to catch fish
(Activity Code 1) and that delivers all catches to a processing vessel,
must maintain only ``SECTION ONE-EFFORT'', of the daily fishing log,
provided the processing vessel maintains a daily consolidated fishing
log as described in paragraphs (f) and (g) of this section.
(e) Daily fishing log--contents. The daily fishing log must contain
the following information, as modified by paragraph (d)(2) of this
section and the regulations for the fishery in which the FFV is engaged,
and be completed according to the format and instructions provided with
the permit or other format authorized under paragraph (i) of this
section.
(1) ``SECTION ONE-EFFORT'' must contain on a daily basis--
[[Page 63]]
(i) A consecutive page number, beginning with the first day the
vessel started fishing operations within the EEZ and continuing
throughout the log.
(ii) The date (based on GMT).
(iii) The FFV's name.
(iv) The FFV's IRCS.
(v) The FFV's U.S. permit number.
(vi) The FFV's noon (1200 GMT) position in geographic coordinates.
(vii) The master or operator's signature or title.
(2) ``SECTION ONE-EFFORT'' must contain, for each trawl or set, as
appropriate to the gear type employed--
(i) The consecutive trawl or set number, beginning with the first
set of the calendar year.
(ii) The fishing area in which the trawl or set was completed.
(iii) The gear type.
(iv) The time the gear was set.
(v) The position of the set.
(vi) The course of the set.
(vii) The sea depth.
(viii) The depth of the set.
(ix) The duration of the set.
(x) The hauling time.
(xi) The position of the haul.
(xii) The number of pots or longline units (where applicable).
(xiii) The average number of hooks per longline unit (where
applicable).
(xiv) The trawl speed (where applicable).
(xv) The mesh size of the trawl's codend (where applicable).
(xvi) The estimated total weight of the catch for the trawl of set,
to at least the nearest metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each trawl or set--
(i) The consecutive set or trawl number from ``SECTION ONE''.
(ii) The catch of each allocated species or species group to at
least the nearest 0.1 mt round weight.
(iii) The prohibited species catch to at least the nearest 0.1 mt
round weight or by number, as required by the regulations for the
fishery in which the FFV is engaged.
(iv) The species code of each marine mammal caught and its condition
when released.
(4) ``SECTION TWO-CATCH'' must contain, on a daily basis--
(i) The species codes for all allocated or prohibited species or
species groups caught.
(ii) For each allocated species--the amount, to at least the nearest
0.1 mt, and the daily disposition, either processed for human
consumption, used for fishmeal, or discarded; the daily catch by fishing
area; the daily catch for all fishing areas; and the cumulative total
catch.
(iii) For the total catch of allocated species--the amount to at
least the nearest 0.1 mt and the daily disposition, daily total catch by
fishing area, daily total catch for all fishing areas, and cumulative
total catch.
(iv) The catch by fishing area, daily total, and cumulative total of
each prohibited species.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each allocated species caught and product produced--
(i) The product by species code and product type.
(ii) The daily product recovery rate of each species and product.
(iii) The daily total product produced by species to at least the
nearest 0.01 mt.
(iv) The cumulative total of each product to at least the nearest
0.01 mt.
(v) The cumulative amount of product transferred.
(vi) The balance of product remaining aboard the FFV.
(vii) The total daily amount, cumulative amount, transferred product
and balance of frozen product aboard the FFV to the nearest 0.01 mt.
(viii) Transferred amount and balance of fishmeal and fish oil
aboard to at least the nearest 0.01 mt.
(f) Daily consolidated fishing or joint venture log. The operator of
each FFV that receives unsorted, unprocessed fish from foreign catching
vessels (Activity Code 2) for processing or receives U.S.-harvested fish
from U.S. fishing vessels in a joint venture (Activity Code 4) must
maintain a daily joint venture log of the effort, catch and production
of its associated U.S. or foreign fishing vessels and the processing
vessel as modified by the regulations for the fishery in which the FFV
is engaged. This log is separate and in addition to the log required by
paragraph
[[Page 64]]
(d) of this section. The operator must maintain a separate log for each
fishery in which the FFV is engaged, on a daily and cumulative basis,
according to this section and in the format specified in the
instructions provided with the permit or other format authorized under
paragraph (i) of this section. Receipts of fish caught outside the EEZ
must be included. Each page of the log may contain entries pertaining to
only one day's fishing operations.
(g) Daily joint venture log--contents. Daily joint venture logs must
contain the following information, as modified by the fishery in which
the vessel is engaged, and be completed according to the format and
instructions provided with the permit or other format authorized under
paragraph (i) of this section.
(1) ``SECTION ONE-EFFORT'' must contain, on a daily basis, that
information required in paragraph (e)(1) of this section.
(2) ``SECTION ONE-EFFORT'' must contain for each receipt of a
codend--
(i) The consecutive codend number, beginning with the first codend
received for the calendar year.
(ii) The name of the U.S. fishing vessel or the name and IRCS of the
foreign fishing vessel the codend was received from.
(iii) The fishing area where the codend was received.
(iv) The time the codend was received.
(v) The position the codend was received.
(vi) The estimated weight of the codend to at least the nearest
metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each codend received--
(i) The consecutive codend number from ``SECTION ONE''.
(ii) The receipts of each authorized species or species group and
its disposition, either processed for human consumption, used for
fishmeal, discarded, or returned to the U.S. fishing vessel, to at least
the nearest 0.1 mt round weight.
(iii) The estimated receipts of each prohibited species or species
group and its disposition, either discarded or returned to the U.S.
fishing vessel if authorized in the fishery in which the U.S. vessel is
engaged, to at least the nearest 0.1 mt round weight.
(iv) The species code of each marine mammal received and its
condition when released.
(4) ``SECTION TWO-CATCH'' must contain on a daily basis--
(i) The species codes of all authorized or prohibited species or
species groups received.
(ii) The daily disposition, as described in paragraph (g)(3)(ii) of
this section, daily total, and cumulative total receipts of each
authorized species or species groups.
(iii) The daily disposition, daily total and cumulative total
receipts of all authorized species or species groups.
(iv) The daily and cumulative total receipts of prohibited species
groups and their disposition as described in paragraph (g)(3)(iii) of
this section.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each authorized species or species group received and product
produced, that information required in paragraph (e)(5) of this section.
(h) Daily log maintenance. The logs required by paragraphs (e)
through (g) of this section must be maintained separately for each
fishery (see table 2 to Sec. 600.502).
(1) The effort section (all of ``SECTION ONE'') of the daily logs
must be updated within 2 hours of the hauling or receipt time. The catch
or receipt by trawl or set (``SECTION TWO'') must be entered within 12
hours of the hauling or receipt time. The daily and cumulative total
catch or receipts (``SECTION TWO'') and the production portion
(``SECTION THREE'') of the log must be updated within 12 hours of the
end of the day on which the catch was taken. The date of catch is the
day and time (GMT) the gear is hauled.
(2) Entries for total daily and cumulative catch or receipt weights
(disposition ``C'' or ``M'') must be based on the most accurate method
available to the vessel, either scale round weights or factory weights
converted to round weights. Entries for daily and cumulative weights of
discarded or returned fish (disposition ``D'' or ``R'') must be based on
the most accurate method available to the vessel, either actual count,
scale round weight, or estimated
[[Page 65]]
deck weights. Entries for product weights must be based on the number of
production units (pans, boxes, blocks, trays, cans, or bags) and the
average weight of the production unit, with reasonable allowances for
water added. Allowances for water added cannot exceed 5 percent of the
unit weight. Product weights cannot be based on the commercial or
arbitrary wholesale weight of the product, but must be based on the
total actual weight of the product as determined by representative
samples.
(3) The owner or operator must make all entries in indelible ink,
with corrections to be accomplished by lining out and rewriting, rather
than erasure.
(i) Alternative log formats. As an alternative to the use of the
specific formats provided, a Nation may submit a proposed log format for
FFV's of that Nation for a general type of fishery operation in a
fishery (i.e., joint venture operations) to the appropriate Regional
Administrator and the USCG commander (see tables 1 and 2 to
Sec. 600.502). With the agreement of the USCG commander, the Regional
Administrator may authorize the use of that log format for vessels of
the requesting Nation.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.508 Fishing operations.
(a) Catching. Each FFV authorized for activity code 1 may catch
fish. An FFV may retain its catch of any species or species group for
which there is an unfilled national allocation. All fish caught will be
counted against the national allocation, even if the fish are discarded,
unless exempted by the regulations of the fishery in which the FFV is
engaged. Catching operations may be conducted as specified by the
regulations of the fishery in which the FFV is engaged and as modified
by the FFV's permit.
(b) Scouting. Each FFV authorized for Activity Codes 1 through 6 may
scout for fish. Scouting may be conducted only in the fisheries area
authorized by the scouting vessel's permit and under such other
circumstances as may be designated in this subpart or the permit.
(c) Processing. Each FFV with Activity Code 1 or 2 may process fish.
Processing may only be conducted whenever and wherever catching
operations for FFV's of that Nation are permitted, whenever and wherever
joint venture operations are authorized by an FFV's permit under
Activity Code 4, and under such other circumstances as may be designated
in this subpart or the permit.
(d) Support. Each FFV with Activity Codes 1, 2, 3, 5, or 8 may
support other permitted FFV's. Each FFV with Activity Codes 4 or 6 may
support U.S. vessels. Support operations may be conducted only in the
fisheries areas authorized by the supporting vessel's permit, and under
such other circumstances as may be designated in this subpart or the
permit.
(e) Joint ventures. Each FFV with Activity Code 4 in addition to
Activity Codes 1 or 2 may also conduct operations with U.S. fishing
vessels. These joint venture operations with U.S. fishing vessels may be
conducted throughout the EEZ, and under such other circumstances as may
be designated in these regulations or the permit. FFV's with activity
code 4 may continue operations assisting U.S. fishing vessels, despite
closures under Sec. 600.511(a).
(f) Internal waters. For FFV's authorized under section 306(c) of
the Magnuson-Stevens Act:
(1) Each FFV may engage in fish processing and support of U.S.
fishing vessels within the internal waters of that state in compliance
with terms and conditions set by the authorizing Governor.
(2) The owner or operator of each FFV must submit weekly reports on
the amount of fish received from vessels of the United States and the
location(s) where such fish were harvested.
(i) Reports must include:
(A) Vessel identification information for the FFV.
(B) Date of each receipt of fish.
(C) Amount of fish received, by species.
(D) Location(s) from which the fish received were harvested and the
name and official number of the vessel of the United States that
harvested the fish.
(ii) Owners or operators of FFV's processing fish in internal waters
[[Page 66]]
under the provisions of this paragraph (f) must request, from the
Regional Administrator, the requirements regarding timing and submission
of the reports, at least 15 days prior to the first receipt of fish from
a vessel of the United States. The Regional Administrator shall
stipulate the timing and submission requirements in writing.
(g) Transshipping. Each FFV with Activity Code 1, 2, 3, 4, 5, 6, 7,
8, or 10 may transship in accordance with this subpart and the vessel's
permit.
[61 FR 32540, June 24, 1996, as amended at 62 FR 27183, May 19, 1997; 62
FR 34397, June 26, 1997; 64 FR 39020, July 21, 1999]
Sec. 600.509 Prohibited species.
(a) The owner or operator of each FFV must minimize its catch or
receipt of prohibited species.
(b) After allowing for sampling by an observer (if any), the owner
or operator of each FFV must sort its catch of fish received as soon as
possible and return all prohibited species and species parts to the sea
immediately with a minimum of injury, regardless of condition, unless a
different procedure is specified by the regulations for the fishery in
which the FFV is engaged. All prohibited species must be recorded in the
daily fishing log and other fishing logs as specified by the regulations
for the fishery in which the FFV is engaged.
(c) All species of fish that an FFV has not been specifically
allocated or authorized under this subpart to retain, including fish
caught or received in excess of any allocation or authorization, are
prohibited species.
(d) It is a rebuttable presumption that any prohibited species or
species part found on board an FFV was caught and retained in violation
of this section.
Sec. 600.510 Gear avoidance and disposal.
(a) Vessel and gear avoidance. (1) FFV's arriving on fishing grounds
where fishing vessels are already fishing or have set their gear for
that purpose must ascertain the position and extent of gear already
placed in the sea and must not place themselves or their fishing gear so
as to interfere with or obstruct fishing operations already in progress.
Vessels using mobile gear must avoid fixed fishing gear.
(2) The operator of each FFV must maintain on its bridge a current
plot of broadcast fixed-gear locations for the area in which it is
fishing, as required by the regulations for the fishery in which the FFV
is engaged.
(b) Gear conflicts. The operator of each FFV that is involved in a
conflict or that retrieves the gear of another vessel must immediately
notify the appropriate USCG commander identified in tables 1 and 2 to
Sec. 600.502 and request disposal instructions. Each report must
include:
(1) The name of the reporting vessel.
(2) A description of the incident and articles retrieved, including
the amount, type of gear, condition, and identification markings.
(3) The location of the incident.
(4) The date and time of the incident.
(c) Disposal of fishing gear and other articles. (1) The operator of
an FFV in the EEZ may not dump overboard, jettison or otherwise discard
any article or substance that may interfere with other fishing vessels
or gear, or that may catch fish or cause damage to any marine resource,
including marine mammals and birds, except in cases of emergency
involving the safety of the ship or crew, or as specifically authorized
by communication from the appropriate USCG commander or other authorized
officer. These articles and substances include, but are not limited to,
fishing gear, net scraps, bale straps, plastic bags, oil drums,
petroleum containers, oil, toxic chemicals or any manmade items
retrieved in an FFV's gear.
(2) The operator of an FFV may not abandon fishing gear in the EEZ.
(3) If these articles or substances are encountered, or in the event
of accidental or emergency placement into the EEZ, the vessel operator
must immediately report the incident to the appropriate USCG Commander
indicated in tables 1 and 2 to Sec. 600.502, and give the information
required in paragraph (b) of this section.
Sec. 600.511 Fishery closure procedures.
(a) Activity Codes 1 and 2 for a fishery are automatically canceled
in the
[[Page 67]]
following cases, unless otherwise specified by regulations specific to a
fishery, when--
(1) The OY for any allocated species or species group has been
reached in that fishery;
(2) The TALFF or catch allowance for any allocated species or
species group has been reached in that fishery;
(3) The foreign nation's allocation for any allocated species or
species group has been reached; or
(4) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(b) Activity Code 4 is automatically canceled when--
(1) The OY for a species with a JVP amount is reached;
(2) The JVP amount for a species or species group is reached; or
(3) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(c) Notification. (1) The Regional Administrator is authorized to
close a fishery on behalf of NMFS. The Regional Administrator will
notify each FFV's designated representative of closures.
(2) If possible, notice will be given 48 hours before the closure.
However, each Nation and the owners and operators of all FFV's of that
Nation are responsible for ending fishing operations when an allocation
is reached.
(d) Catch reconciliation. Vessel activity reports, U.S. surveillance
observations, observer reports, and foreign catch and effort reports
will be used to make the determination listed in paragraphs (a) and (b)
of this section. If NMFS estimates of catch or other values made during
the season differ from those reported by the foreign fleets, efforts may
be initiated by the designated representative of each Nation to resolve
such differences with NMFS. If, however, differences still persist after
such efforts have been made, NMFS estimates will be the basis for
decisions and will prevail.
(e) Duration. Any closure under this section will remain in effect
until an applicable new or increased allocation or JVP becomes available
or the letter of credit required by Sec. 600.518(b)(2) is reestablished.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.512 Scientific research.
(a) Scientific research activity. Persons planning to conduct
scientific research activities in the EEZ that may be confused with
fishing are encouraged to submit to the appropriate Regional
Administrator, Director, or designee, 60 days or as soon as practicable
prior to its start, a scientific research plan for each scientific
cruise. The Regional Administrator, Director, or designee will
acknowledge notification of scientific research activity by issuing to
the operator or master of that vessel, or to the sponsoring institution,
a letter of acknowledgment. This letter of acknowledgment is separate
and distinct from any permit required under any other applicable law. If
the Regional Administrator, Director, or designee, after review of a
research plan, determines that it does not constitute scientific
research activity, but rather fishing, the Regional Administrator,
Director, or designee will inform the applicant as soon as practicable
and in writing. The Regional Administrator, Director, or designee may
also make recommendations to revise the research plan to make the cruise
acceptable as scientific research activity. In order to facilitate
identification of activity as scientific research, persons conducting
scientific research activities are advised to carry a copy of the
scientific research plan and the letter of acknowledgment on board the
scientific research vessel. Activities conducted in accordance with a
scientific research plan acknowledged by such a letter are presumed to
be scientific research activities. The presumption may be overcome by
showing that an activity does not fit the definition of scientific
research activity or is outside the scope of the scientific research
plan.
(b) Reports. Persons conducting scientific research are requested to
submit a copy of any cruise report or other publication created as a
result of the cruise, including the amount, composition, and disposition
of their catch,
[[Page 68]]
to the appropriate Science and Research Director.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.513 Recreational fishing.
(a) Foreign vessels conducting recreational fishing must comply only
with this section, and Secs. 600.10, 600.504(a)(1), and 600.505 (as
applicable). Such vessels may conduct recreational fishing within the
EEZ and within the boundaries of a state. Any fish caught may not be
sold, bartered, or traded.
(b) The owners or operator and any other person aboard any foreign
vessel conducting recreational fishing must comply with any Federal laws
or regulations applicable to the domestic fishery while in the EEZ, and
any state laws or regulations applicable while in state waters.
Sec. 600.514 Relation to other laws.
(a) Persons affected by these regulations should be aware that other
Federal and state statutes may apply to their activities.
(b) Fishing vessel operators must exercise due care in the conduct
of fishing activities near submarine cables. Damage to submarine cables
resulting from intentional acts or from the failure to exercise due care
in the conduct of fishing operations subjects the fishing vessel
operator to enforcement action under the International Convention for
the Protection of Submarine Cables, and to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) and other laws that
implement that Convention. Fishing vessel operators also should be aware
that the Submarine Cable Act prohibits fishing operations at a distance
of less than 1 nautical mile (1.85 km) from a vessel engaged in laying
or repairing a submarine cable; or at a distance of less than 0.25
nautical mile (0.46 km) from a buoy or buoys intended to mark the
position of a cable when being laid, or when out of order, or broken.
Sec. 600.515 Interpretation of 16 U.S.C. 1857(4).
Section 307(4) of the Magnuson-Stevens Act prohibits any fishing
vessel other than a vessel of the United States (foreign fishing vessel)
from operating in the EEZ if all of the fishing gear on board the vessel
is not stowed in compliance with that section ``unless such vessel is
authorized to engage in fishing in the area in which the vessel is
operating.'' If such a vessel has a permit authorization that is limited
to fishing activities other than catching, taking or harvesting (such as
support, scouting or processing activities), it must have all of its
fishing gear stowed at all times while it is in the EEZ. If such a
vessel has a permit authorization to engage in catching, taking or
harvesting activities, but such authorization is limited to a specific
area within the EEZ, and/or to a specific period of time, the vessel
must have all of its fishing gear stowed while it is in the EEZ, except
when it is in the specific area authorized, and/or during the specific
period of time authorized.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.516 Total allowable level of foreign fishing (TALFF).
(a) The TALFF, if any, with respect to any fishery subject to the
exclusive fishery management authority of the United States, is that
portion of the OY of such fishery that will not be caught by vessels of
the United States.
(b) Each specification of OY and each assessment of the anticipated
U.S. harvest will be reviewed during each fishing season. Adjustments to
TALFF's will be made based on updated information relating to status of
stocks, estimated and actual performance of domestic and foreign fleets,
and other relevant factors.
(c) Specifications of OY and the initial estimates of U.S. harvests
and TALFF's at the beginning of the relevant fishing year will be
published in the Federal Register. Adjustments to those numbers will be
published in the Federal Register upon occasion or as directed by
regulations implementing FMPs. For current apportionments, contact the
appropriate Regional Administrator or the Director.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
[[Page 69]]
Sec. 600.517 Allocations.
The Secretary of State, in cooperation with the Secretary,
determines the allocation among foreign nations of fish species and
species groups. The Secretary of State officially notifies each foreign
nation of its allocation. The burden of ascertaining and accurately
transmitting current allocations and status of harvest of an applicable
allocation to fishing vessels is upon the foreign nation and the owner
or operator of the FFV.
Sec. 600.518 Fee schedule for foreign fishing.
(a) Permit application fees. Each vessel permit application
submitted under Sec. 600.501 must be accompanied by a fee. The amount of
the fee will be determined in accordance with the procedures for
determining administrative costs of each special product or service
contained in the NOAA Finance Handbook, which is available upon request
from the International Fisheries Division (see address at
Sec. 600.501(d)(1)). The fee is specified with the application form. At
the time the application is submitted, a check for the fees, drawn on a
U.S. bank, payable to the order of ``Department of Commerce, NOAA,''
must be sent to the Assistant Administrator. The permit fee payment must
be accompanied by a list of the vessels for which the payment is made.
In the case of applications for permits authorizing activity code 10,
the permit application fee will be waived if the applicant provides
satisfactory documentary proof to the Assistant Administrator that the
foreign nation under which the vessel is registered does not collect a
fee from a vessel of the United States engaged in similar activities in
the waters of such foreign nation. The documentation presented (e.g.,
copy of foreign fishing regulations applicable to vessels of the United
States) must clearly exempt vessels of the United States from such a
fee.
(b) Poundage fees. (1) Rates. If a Nation chooses to accept an
allocation, poundage fees must be paid at the rate specified in the
following table.
Table--Species and Poundage Fees
[Dollars per metric ton, unless otherwise noted]
------------------------------------------------------------------------
Poundage
Species fees fees
------------------------------------------------------------------------
Northwest Atlantic Ocean fisheries:
1. Butterfish.............................................. 274.61
2. Hake, red............................................... 163.97
3. Hake, silver............................................ 174.63
4. Herring................................................. 61.76
5. Mackerel, Atlantic...................................... 58.33
6. Other groundfish........................................ 119.09
7. Squid, Illex............................................ 103.98
8. Squid, Loligo........................................... 245.73
------------------------------------------------------------------------
(2) Method of payment of poundage fees and observer fees. (i) If a
Nation chooses to accept an allocation, a revolving letter of credit (L/
C) must be established and maintained to cover the poundage fees for at
least 25 percent of the previous year's total allocation at the rate in
paragraph (b)(1) of this section, or as determined by the Assistant
Administrator, plus the observer fees required by paragraph (c) of this
section. The L/C must--
(A) Be irrevocable.
(B) Be with a bank subscribing to ICC Pub. 290.
(C) Designate ``Department of Commerce, NOAA'' as beneficiary;
(D) Allow partial withdrawals.
(E) Be confirmed by a U.S. bank.
(ii) The customer must pay all commissions, transmission, and
service charges. No fishing will be allowed until the L/C is
established, and authorized written notice of its issuance is provided
to the Assistant Administrator.
(3) Assessment of poundage fees. Poundage fees will be assessed
quarterly for the actual catch during January through March, April
through June, July through September, and October through December. The
appropriate Regional Administrator will reconcile catch figures with
each country following the procedures of Sec. 600.511(d). When the catch
figures are agreed upon, NOAA will present a bill for collection as the
documentary demand for payment to the confirming bank. If, after 45 days
from the end of the quarter, catches have not been reconciled, the
estimate of the Regional Administrator will stand and a bill will be
issued for that amount. If necessary, the catch figures may be refined
by the Regional Administrator during the
[[Page 70]]
next 60 days, and any modifications will be reflected in the next
quarter's bill.
(c) Observer fees. The Assistant Administrator will notify the
owners or operators of FFV's of the estimated annual costs of placing
observers aboard their vessels. The owners or operators of any such
vessel must provide for repayment of those costs by including one-fourth
of the estimated annual observer fee as determined by the Assistant
Administrator in a L/C as prescribed in Sec. 600.518(b)(2). During the
fiscal year, payment will be withdrawn from the L/C as required to cover
anticipated observer coverage for the upcoming fishery. The Assistant
Administrator will reconcile any differences between the estimated cost
and actual costs of observer coverage within 90 days after the end of
the fiscal year.
(d) Financial assurances. (1) A foreign nation, or the owners and
operators of certain vessels of that foreign nation, may be required by
the Assistant Administrator to provide financial assurances. Such
assurances may be required if--
(i) Civil and criminal penalties assessed against fishing vessels of
the Nation have not effectively deterred violations;
(ii) Vessels of that Nation have engaged in fishing in the EEZ
without proper authorization to conduct such activities;
(iii) The Nation's vessel owners have refused to answer
administrative charges or summons to appear in court; or
(iv) Enforcement of Magnuson-Stevens Act civil or criminal judgments
in the courts of a foreign nation is unattainable.
(2) The level of financial assurances will be guided by the level of
penalties assessed and costs to the U.S. Government.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39020, July 21, 1999]
Sec. 600.520 Northwest Atlantic Ocean fishery.
(a) Purpose. Sections 600.520 and 600.525 regulate all foreign
fishing conducted under a GIFA within the EEZ in the Atlantic Ocean
north of 35 deg.00' N. lat.
(b) Authorized fishery--(1) Allocations. Foreign vessels may engage
in fishing only in accordance with applicable national allocations.
(2) Time and area restrictions. (i) Fishing, including processing,
scouting, and support of foreign or U.S. vessels, is prohibited south of
35 deg.00' N. lat., and north and east of a line beginning at the shore
at 44 deg.22' N. lat., 67 deg.52' W. long. and intersecting the boundary
of the EEZ at 44 deg.11'12" N. lat., 67 deg.16'46" W. long.
(ii) The Regional Administrator will consult with the Council prior
to giving notice of any area or time restriction. NMFS will also consult
with the USCG if the restriction is proposed to reduce gear conflicts.
If NMFS determines after such consultation that the restriction appears
to be appropriate, NMFS will publish the proposed restriction in the
Federal Register, together with a summary of the information on which
the restriction is based. Following a 30-day comment period, NMFS will
publish a final action.
(iii) The Regional Administrator may rescind any restriction if he/
she determines that the basis for the restriction no longer exists.
(iv) Any notice of restriction shall operate as a condition imposed
on the permit issued to the foreign vessels involved in the fishery.
(3) TALFF. The TALFFs for the fisheries of the Northwest Atlantic
Ocean are published in the Federal Register. Current TALFFs are also
available from the Regional Administrator.
(4) Species definitions. The category ``other finfish'' used in
TALFFs and in allocations includes all species except:
(i) The other allocated species, namely: Short-finned squid, long-
finned squid, Atlantic herring, Atlantic mackerel, river herring
(includes alewife, blueback herring, and hickory shad), and butterfish.
(ii) The prohibited species, namely: American plaice, American shad,
Atlantic cod, Atlantic menhaden, Atlantic redfish, Atlantic salmon, all
marlin, all spearfish, sailfish, swordfish, black sea bass, bluefish,
croaker, haddock, ocean pout, pollock, red hake, scup, sea turtles,
sharks (except
[[Page 71]]
dogfish), silver hake, spot, striped bass, summer flounder, tilefish,
yellowtail flounder, weakfish, white hake, windowpane flounder, winter
flounder, witch flounder, Continental Shelf fishery resources, and other
invertebrates (except nonallocated squids).
(5) Closures. The taking of any species for which a Nation has an
allocation is permitted, provided that:
(i) The vessels of the foreign nation have not caught the allocation
of that Nation for any species or species group (e.g., ``other
finfish''). When vessels of a foreign nation have caught an applicable
allocation of any species, all further fishing other than scouting,
processing, or support by vessels of that Nation must cease, even if
other allocations have not been reached. Therefore, it is essential that
foreign nations plan their fishing strategy to ensure that the reaching
of an allocation for one species does not result in the premature
closing of a Nation's fishery for other allocated species.
(ii) The fishery has not been closed for other reasons under
Sec. 600.511.
(6) Allocation utilization. Foreign fishing vessels may elect to
retain or discard allocated species; however, the computation of
allocation utilization and fee refunds will be based on the total
quantity of that species that was caught. Prohibited species must always
be returned to the sea as required under Sec. 600.509.
(c) Fishing areas. For the purposes of the Northwest Atlantic Ocean
fishery, fishing areas are that portion of the EEZ shown inside the
boundaries of the ``three digit statistical areas'' described in Figure
1 to this section.
[[Page 72]]
[GRAPHIC] [TIFF OMITTED] TR24JN96.000
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.525 Atlantic herring fishery.
(a) Initial specifications. The initial specifications of OY, DAH,
DAP, JVP, TALFF, and reserve (if any) have been established by the PMP
for Atlantic herring approved on July 6, 1995. These annual
specifications will remain in effect unless adjusted pursuant to the
provisions specified in paragraph (b) of this section.
(b) Procedures to adjust initial specifications. NMFS may adjust
these initial specifications upward or downward to produce the greatest
overall benefit to the United States at any time prior to or during the
fishing years for which the initial specifications are set by publishing
notification in the Federal
[[Page 73]]
Register with the reasons for such adjustments. Any notice of adjustment
may provide for public comment. Adjustments to the initial
specifications may take into account the following information:
(1) The estimated domestic processing capacity and extent to which
it will be used.;
(2) Landings and catch statistics.;
(3) Stock assessments.
(4) Relevant scientific information.
Subpart G--Preemption of State Authority Under Section 306(b)
Sec. 600.605 General policy.
It is the policy of the Secretary that preemption proceedings will
be conducted expeditiously. The administrative law judge and counsel or
other representative for each party are encouraged to make every effort
at each stage of the proceedings to avoid delay.
Sec. 600.610 Factual findings for Federal preemption.
(a) The two factual findings for Federal preemption of state
management authority over a fishery are:
(1) The fishing in a fishery that is covered by an FMP implemented
under the Magnuson-Stevens Act is engaged in predominately within the
EEZ and beyond such zone.
(2) A state has taken any action, or omitted to take any action, the
results of which will substantially and adversely affect the carrying
out of such FMP.
(b) Whether fishing is engaged in ``predominately'' within or beyond
the EEZ will be determined after consideration of relevant factors,
including but not limited to, the catch (based on numbers, value, or
weight of fish caught, or other relevant factors) or fishing effort
during the appropriate period, and in light of historical patterns of
the distribution of catch or fishing effort for such stock or stocks of
fish.
(c) Whether relevant effects are substantial will be determined
after consideration of the magnitude of such actual or potential
effects. Relevant to this determination are various factors, including
but not limited to, the proportion of the fishery (stock or stocks of
fish and fishing for such stocks) that is subject to the effects of a
particular state's action or omission, the characteristics and status
(including migratory patterns and biological condition) of the stock or
stocks of fish in the fishery, and the similarity or dissimilarity
between the goals, objectives, or policies of the state's action or
omission and the management goals or objectives specified in the FMP for
the fishery or between the state and Federal conservation and management
measures of the fishery.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.615 Commencement of proceedings.
(a) Notice of proposed preemption. (1) If a proceeding under this
part is deemed necessary, the Administrator must issue a notice of
proposed preemption to the Attorney General of the State or States
concerned. The notice will contain:
(i) A recital of the legal authority and jurisdiction for
instituting the proceeding.
(ii) A concise statement of the Sec. 600.610 factual findings for
Federal preemption upon which the notice is based.
(iii) The time, place, and date of the hearing.
(2) The notice of proposed preemption will also be published in the
Federal Register. This notification may be combined with any notice of
proposed rulemaking published under paragraph (d)(1) of this section.
(b) Response. The state will have the opportunity to respond in
writing to the notice of proposed preemption.
(c) Amendment. The Administrator may, at any time prior to the
Secretary's decision, withdraw the notice of proposed preemption. Upon
motion of either party before the record is closed, the administrative
law judge may amend the notice of proposed preemption.
(d) Proposed regulations--(1) In general. If additional regulations
are required to govern fishing within the
[[Page 74]]
boundaries of a state, the Administrator may publish proposed
regulations in the Federal Register concurrently with issuing the
notification indicated in paragraph (a) of this section.
(2) Emergency actions. Nothing in this section will prevent the
Secretary from taking emergency action under section 305(c) of the
Magnuson-Stevens Act.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.620 Rules pertaining to the hearing.
(a) The civil procedure rules of the NOAA currently set forth in 15
CFR part 904, subpart C (or as subsequently amended), apply to the
proceeding after its commencement by service of notice (pursuant to
Sec. 600.615) and prior to the Secretary's decision (Sec. 600.625),
except that the following sections will not apply:
(1) 15 CFR 904.201 (Definitions);
(2) 15 CFR 904.206(a)(1) (Duties and powers of Judge); and
(3) 15 CFR 904.272 (Administrative review of decision).
(b) Additional duties and powers of judge--(1) Time periods. The
administrative law judge is authorized to modify all time periods
pertaining to the course of the hearing (under Secs. 600.615 and
600.620) to expedite the proceedings, upon application and appropriate
showing of need or emergency circumstances by a party.
(2) Intervention. Intervention by persons not parties is not
allowed.
Sec. 600.625 Secretary's decision.
(a) The Secretary will, on the basis of the hearing, record the
administrative law judge's recommended decision:
(1) Accept or reject any of the findings or conclusions of the
administrative law judge and decide whether the factual findings exist
for Federal preemption of a state's authority within its boundaries
(other than in its internal waters) with respect to the fishery in
question;
(2) Reserve decision on the merits or withdraw the notice of
proposed preemption; or
(3) Remand the case to the administrative law judge for further
proceedings as may be appropriate, along with a statement of reasons for
the remand.
(b) Notification. (1) If the factual findings for Federal preemption
are determined to exist, the Secretary will notify in writing the
Attorney General of that state and the appropriate Council(s) of the
preemption of that state's authority. The Secretary will also direct the
Administrator to promulgate appropriate regulations proposed under
Sec. 600.615(d) and otherwise to begin regulating the fishery within the
state's boundaries (other than in its internal waters).
(2) If the factual findings for Federal preemption are determined
not to exist, the Secretary will notify, in writing, the Attorney
General of the state and the appropriate Council(s) of that
determination. The Secretary will also direct the Administrator to issue
a notice withdrawing any regulations proposed under Sec. 600.615(d).
Sec. 600.630 Application for reinstatement of state authority.
(a) Application or notice. (1) At any time after the promulgation of
regulations under Sec. 600.625(b)(1) to regulate a fishery within a
state's boundaries, the affected state may apply to the Secretary for
reinstatement of state authority. The Secretary may also serve upon such
state a notice of intent to terminate such Federal regulation. A state's
application must include a clear and concise statement of:
(i) The action taken by the State to correct the action or omission
found to have substantially and adversely affected the carrying out of
the FMP; or
(ii) Any changed circumstances that affect the relationship of the
state's action or omission to take action to the carrying out of the FMP
(including any amendment to such plan); and
(iii) Any laws, regulations, or other materials that the state
believes support the application.
(2) Any such application received by the Secretary or notice issued
to the State will be published in the Federal Register.
(b) Informal response. The Secretary has sole discretion to accept
or reject the application or response. If the Secretary accepts the
application or rejects any responses and finds that the
[[Page 75]]
reasons for regulation of the fishery within the boundaries of the state
no longer prevail, the Secretary will promptly terminate such regulation
and publish in the Federal Register any regulatory amendments necessary
to accomplish that end.
(c) Hearing. The Secretary has sole discretion to direct the
Administrator to schedule hearings for the receipt of evidence by an
administrative law judge. Hearings before the administrative law judge
to receive such evidence will be conducted in accordance with
Sec. 600.620. Upon conclusion of such hearings, the administrative law
judge will certify the record and a recommended decision to the
Secretary. If the Secretary, upon consideration of the state's
application or any response to the notice published under
Sec. 600.630(a)(2), the hearing record, the recommended decision, and
any other relevant materials finds that the reasons for regulation of
the fishery within the boundaries of the state no longer prevail, the
Secretary will promptly terminate such regulation and publish in the
Federal Register any regulatory amendments necessary to accomplish that
end.
Subpart H--General Provisions for Domestic Fisheries
Sec. 600.705 Relation to other laws.
(a) General. Persons affected by these regulations should be aware
that other Federal and state statutes and regulations may apply to their
activities. Vessel operators may wish to refer to USCG regulations found
in the Code of Federal Regulations title 33--Navigation and Navigable
Waters and 46--Shipping; 15 CFR part 904, subpart D--Permit Sanctions
and Denials; and title 43--Public Lands (in regard to marine
sanctuaries).
(b) State responsibilities. Certain responsibilities relating to
data collection and enforcement may be performed by authorized state
personnel under a state/Federal agreement for data collection and a
tripartite agreement among the state, the USCG, and the Secretary for
enforcement.
(c) Submarine cables. Fishing vessel operators must exercise due
care in the conduct of fishing activities near submarine cables. Damage
to the submarine cables resulting from intentional acts or from the
failure to exercise due care in the conduct of fishing operations
subjects the fishing vessel operator to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) which implements
the International Convention for the Protection of Submarine Cables.
Fishing vessel operators also should be aware that the Submarine Cable
Act prohibits fishing operations at a distance of less than 1 nautical
mile (1.85 km) from a vessel engaged in laying or repairing a submarine
cable; or at a distance of less than 0.25 nautical mile (0.46 km) from a
buoy or buoys intended to mark the position of a cable when being laid
or when out of order or broken.
(d) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals are
set forth in part 229 of this title.
(e) Halibut fishing. Fishing for halibut is governed by regulations
of the International Pacific Halibut Commission set forth at part 300 of
this title.
(f) Marine sanctuaries. All fishing activity, regardless of species
sought, is prohibited under 15 CFR part 924 in the U.S.S. Monitor Marine
Sanctuary, which is located approximately 15 miles southwest of Cape
Hatteras off the coast of North Carolina.
Sec. 600.710 Permits.
Regulations pertaining to permits required for certain fisheries are
set forth in the parts of this chapter governing those fisheries.
Sec. 600.715 Recordkeeping and reporting.
Regulations pertaining to records and reports required for certain
fisheries are set forth in the parts of this chapter governing those
fisheries.
Sec. 600.720 Vessel and gear identification.
Regulations pertaining to special vessel and gear markings required
for certain fisheries are set forth in the parts of this chapter
governing those fisheries.
[[Page 76]]
Sec. 600.725 General prohibitions.
It is unlawful for any person to do any of the following:
(a) Possess, have custody or control of, ship, transport, offer for
sale, sell, purchase, land, import, or export, any fish or parts thereof
taken or retained in violation of the Magnuson-Stevens Act or any other
statute administered by NOAA and/or any regulation or permit issued
under the Magnuson-Stevens Act.
(b) Transfer or attempt to transfer, directly or indirectly, any
U.S.-harvested fish to any foreign fishing vessel, while such vessel is
in the EEZ, unless the foreign fishing vessel has been issued a permit
under section 204 of the Magnuson-Stevens Act, which authorizes the
receipt by such vessel of U.S.- harvested fish.
(c) Fail to comply immediately with enforcement and boarding
procedures specified in Sec. 600.730.
(d) Refuse to allow an authorized officer to board a fishing vessel
or to enter areas of custody for purposes of conducting any search,
inspection, or seizure in connection with the enforcement of the
Magnuson-Stevens Act or any other statute administered by NOAA.
(e) Dispose of fish or parts thereof or other matter in any manner,
after any communication or signal from an authorized officer, or after
the approach by an authorized officer or an enforcement vessel or
aircraft.
(f) Assault, resist, oppose, impede, intimidate, threaten, or
interfere with any authorized officer in the conduct of any search,
inspection, or seizure in connection with enforcement of the Magnuson-
Stevens Act or any other statute administered by NOAA.
(g) Interfere with, delay, or prevent by any means, the apprehension
of another person, knowing that such person has committed any act
prohibited by the Magnuson-Stevens Act or any other statute administered
by NOAA.
(h) Resist a lawful arrest for any act prohibited under the
Magnuson-Stevens Act or any other statute administered by NOAA.
(i) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, purchase,
sale, offer of sale, possession, transport, import, export, or transfer
of any fish, or attempts to do any of the above.
(j) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Magnuson-Stevens Act or any other
statute administered by NOAA.
(k) Fish in violation of the terms or conditions of any permit or
authorization issued under the Magnuson-Stevens Act or any other statute
administered by NOAA.
(l) Fail to report catches as required while fishing pursuant to an
exempted fishing permit.
(m) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state or Federal
regulations.
(n) Trade, barter, or sell; or attempt to trade, barter, or sell
fish possessed or retained while fishing pursuant to an authorization
for an exempted educational activity.
(o) Harass or sexually harass an authorized officer or an observer.
(p) Fail to submit to a USCG safety examination when required by
NMFS pursuant to Sec. 600.746.
(q) Fail to display a Commercial Fishing Vessel Safety Examination
decal or a valid certificate of compliance or inspection pursuant to
Sec. 600.746.
(r) Fail to provide to an observer, a NMFS employee, or a designated
observer provider information that has been requested pursuant to
Sec. 600.746, or fail to allow an observer, a NMFS employee, or a
designated observer provider to inspect any item described at
Sec. 600.746.
(s) Fish without an observer when the vessel is required to carry an
observer.
(t) Assault, oppose, impede, intimidate, or interfere with a NMFS-
approved observer aboard a vessel.
(u) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or her
duties aboard a vessel.
(v) The use of any gear or participation in a fishery not on the
following list of authorized fisheries and gear is prohibited after
December 1, 1999. A fish, regardless whether targeted, may
[[Page 77]]
be retained only if it is taken within a listed fishery, is taken with a
gear authorized for that fishery, and is taken in conformance with all
other applicable regulations. Listed gear can only be used in a manner
that is consistent with existing laws and regulations. The list of
fisheries and authorized gear does not, in any way, alter or supersede
any definitions or regulations contained elsewhere in this chapter. A
person or vessel is prohibited from engaging in fishing or employing
fishing gear when such fishing gear is prohibited or restricted by
regulation under an FMP or other applicable law. However, after December
1, 1999, an individual fisherman may notify the appropriate Council, or
the Director, in the case of Atlantic highly migratory species, of the
intent to use a gear or participate in a fishery not already on the
list. Ninety days after such notification, the individual may use the
gear or participate in that fishery unless regulatory action is taken to
prohibit the use of the gear or participate in the fishery (e.g.,
through emergency or interim regulations). The list of authorized
fisheries and gear is as follows:
------------------------------------------------------------------------
Fishery Authorized gear types
------------------------------------------------------------------------
I. New England Fishery Management Council (NEFMC)
------------------------------------------------------------------------
1. Atlantic Sea Scallop Fishery (FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Hand harvest fishery............... C. Hand harvest.
D. Recreational fishery............... D. Hand harvest.
2. Iceland Scallop Fishery (Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
3. Atlantic Salmon Fishery (FMP)......... No harvest or possession in
the EEZ.
4. Striped Bass Fishery (Non-FMP)........ No harvest or possession in
the EEZ.
5. Northeast (NE) Multispecies Fishery
(FMP):
A. NE multispecies sink gillnet A. Gillnet.
fishery.
B. North Atlantic bottom trawl fishery B. Trawl.
C. Groundfish hook and line fishery... C. Longline, handline, rod
and reel.
D. Mixed species trap and pot fishery. D. Trap, pot.
E. Dredge fishery..................... E. Dredge.
F. Seine fishery...................... F. Seine.
G. Recreational fishery............... G. Rod and reel, handline,
spear.
6. American Lobster Fishery (FMP):
A. Lobster pot and trap fishery....... A. Pot, trap.
B. North Atlantic bottom trawl fishery B. Trawl.
C. Dredge fishery..................... C. Dredge.
D. Hand harvest fishery............... D. Hand harvest.
E. Gillnet fishery.................... E. Gillnet.
F. Recreational fishery............... F. Pot, trap, hand harvest.
7. Atlantic Herring Fishery (FMP):
A. Trawl fishery...................... A. Trawl.
B. Purse seine fishery................ B. Purse seine.
C. Gillnet fishery.................... C. Gillnet.
D. Herring pair trawl fishery......... D. Pair trawl.
E. Dredge fishery..................... E. Dredge.
F. Recreational fishery............... F. Hook and line, gillnet.
8. Spiny Dogfish Fishery (FMP jointly
managed by MAFMC and NEFMC):
A. Gillnet fishery.................... A. Gillnet.
B. Trawl fishery...................... B. Trawl.
C. Hook and line fishery.............. C. Hook and line, rod and
reel, spear.
D. Dredge fishery..................... D. Dredge.
E. Longline fishery................... E. Longline.
F. Recreational fishery............... F. Hook and line, rod and
reel, spear.
9. Atlantic Bluefish Fishery (FMP managed
by MAFMC):
A. Pelagic longline and hook and line A. Longline, handline.
fishery.
B. Seine fishery...................... B. Purse seine, seine.
C. Mixed species pot and trap fishery. C. Pot, trap.
D. Bluefish, croaker, flounder trawl D. Trawl.
fishery.
E. Gillnet fishery.................... E. Gillnet.
F. Dredge fishery..................... F. Dredge.
G. Recreational fishery............... G. Rod and reel, handline,
trap, pot, spear.
10. Atlantic Mackerel, Squid and
Butterfish Fishery (FMP managed by the
MAFMC):
A. Mackerel, squid, and butterfish A. Trawl.
trawl fishery.
B. Gillnet fishery.................... B. Gillnet.
C. Longline and hook-and-line fishery. C. Longline, handline, rod
and reel.
D. Purse seine fishery................ D. Purse seine.
E. Mixed species pot and trap fishery. E. Pot, trap.
F. Dredge fishery..................... F. Dredge.
G. Dip net fishery.................... G. Dip net.
H. Bandit gear fishery................ H. Bandit gear.
I. Recreational fishery............... I. Rod and reel, handline,
pot, spear.
11. Surf Clam and Ocean Quahog Fishery
(FMP managed by the MAFMC):
A. Commercial fishery................. A. Dredge, hand harvest.
B. Recreational fishery............... B. Hand harvest.
12. Atlantic Menhaden Fishery (Non-FMP):
A. Purse seine fishery................ A. Purse seine.
B. Trawl fishery...................... B. Trawl.
C. Gillnet fishery.................... C. Gillnet.
D. Commercial hook-and-line fishery... D. Hook and line.
[[Page 78]]
E. Recreational fishery............... E. Hook and line, snagging,
cast nets.
13. Weakfish Fishery (Non-FMP):
A. Commercial fishery................. A. Trawl, gillnet, hook and
line.
B. Recreational fishery............... B. Hook and line, spear.
14. Atlantic Mussel and Sea Urchin Fishery
(Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Hand harvest fishery............... B. Hand harvest.
C. Recreational fishery............... C. Hand harvest.
15. Atlantic Skate Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Gillnet fishery.................... B. Gillnet.
C. Hook-and-line fishery.............. C. Longline and handline.
D. Dredge fishery..................... D. Dredge.
E. Recreational fishery............... E. Rod and reel.
16. Crab Fishery (Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Trap and pot fishery............... C. Trap, pot.
17. Northern Shrimp Fishery (Non-FMP):
A. Shrimp trawl fishery............... A. Trawl.
B. Shrimp pot fishery................. B. Pot.
18. Monkfish Fishery (FMP jointly managed
by NEFMC and MAFMC):
A. Trawl fishery...................... A. Trawl.
B. Gillnet fishery.................... B. Gillnet.
C. Longline fishery................... C. Longline.
D. Dredge fishery..................... D. Dredge.
E. Trap and pot fishery............... E. Trap, pot.
F. Recreational fishery............... F. Rod and reel, spear.
19. Summer Flounder, Scup, Black Sea Bass
Fishery (FMP managed by MAFMC):
A. Trawl fishery...................... A. Trawl.
B. Longline and hook and line fishery. B. Longline, handline.
C. Mixed species pot and trap fishery. C. Pot, trap.
D. Gillnet fishery.................... D. Gillnet.
E. Dredge fishery..................... E. Dredge.
F. Recreational fishery............... F. Rod and reel, handline,
pot, trap, spear.
20. Hagfish Fishery (Non-FMP)............. Trap, pot.
21. Tautog Fishery (Non-FMP):
A. Gillnet fishery.................... A. Gillnet.
B. Pot and trap fishery............... B. Pot, trap.
C. Rod and reel, hook and line fishery C. Rod and reel, handline,
hook and line.
D. Trawl fishery...................... D. Trawl.
E. Spear fishery...................... E. Spear.
F. Fyke net fishery................... F. Fyke net.
G. Recreational fishery............... G. Rod and reel, hook and
line, handline, spear.
22. Recreational Fishery (Non-FMP)........ Rod and reel, handline,
spear, hook and line, hand
harvest, bandit gear,
powerhead, gillnet, cast
net, pot, trap, dip net,
bully net, snare.
23. Commercial Fishery (Non-FMP) Trawl, pot, trap, gillnet, pound net,
dredge, seine, handline, longline, hook and line, rod and reel, hand
harvest, purse seine, spear, bandit gear, powerhead, dip net, bully
net, snare, cast net, barrier net, slurp gun, allowable chemicals..
------------------------------------------------------------------------
II. Mid-Atlantic Fishery Management Council (MAFMC)
------------------------------------------------------------------------
1. Summer Flounder, Scup, Black Sea Bass
Fishery (FMP):
A. Trawl fishery...................... A. Trawl.
B. Pelagic longline and hook and line B. Longline, handline, rod
fishery. and reel.
C. Mixed species pot and trap fishery. C. Pot, trap.
D. Gillnet fishery.................... D. Gillnet.
E. Dredge fishery..................... E. Dredge.
F. Recreational fishery............... F. Rod and reel, handline,
pot, trap, spear.
2. Atlantic Bluefish Fishery (FMP):
A. Bluefish, croaker, and flounder A. Trawl.
trawl fishery.
B. Pelagic longline and hook and line B. Longline, handline,
fishery. bandit gear, rod and reel.
C. Mixed species pot and trap fishery. C. Pot, trap.
D. Gillnet fishery.................... D. Gillnet.
E. Seine fishery...................... E. Purse seine, seine.
F. Dredge fishery..................... F. Dredge.
G. Recreational fishery............... G. Rod and reel, handline,
trap, pot, spear.
3. Atlantic Mackerel, Squid, and
Butterfish Fishery (FMP):
A. Mackerel, squid, and butterfish A. Trawl.
trawl fishery.
B. Gillnet fishery.................... B. Gillnet.
C. Longline and hook-and-line fishery. C. Longline, handline, rod
and reel.
D. Purse seine fishery................ D. Purse seine.
E. Mixed species pot and trap fishery. E. Pot, trap.
F. Dredge fishery..................... F. Dredge.
G. Dip net fishery.................... G. Dip net.
H. Bandit gear fishery................ H. Bandit gear.
I. Recreational fishery............... I. Rod and reel, handline,
pot, spear.
4. Surf Clam and Ocean Quahog Fishery
(FMP):
A. Commercial fishery................. A. Dredge, hand harvest.
B. Recreational fishery............... B. Hand harvest.
5. Atlantic Sea Scallop Fishery (FMP
managed by NEFMC):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Hand harvest fishery............... C. Hand harvest.
D. Recreational fishery............... D. Hand harvest.
6. Atlantic Menhaden Fishery (Non-FMP):
A. Purse seine fishery................ A. Purse seine.
B. Trawl fishery...................... B. Trawl.
C. Gillnet fishery.................... C. Gillnet.
D. Commercial hook-and-line fishery... D. Hook and line.
[[Page 79]]
E. Recreational fishery............... E. Hook and line, snagging,
cast nets.
7. Striped Bass Fishery (Non-FMP)........ No harvest or possession in
the EEZ.
8. Northern Shrimp Trawl Fishery (Non- Trawl.
FMP).
9. American Lobster Fishery (FMP managed
by NEFMC):
A. Pot and trap fishery............... A. Pot, trap.
B. Hand harvest fishery............... B. Hand harvest.
C. Trawl fishery...................... C. Trawl.
D. Dredge fishery..................... D. Dredge.
E. Gillnet fishery.................... E. Gillnet.
F. Recreational fishery............... F. Pot, trap, hand harvest.
10. Weakfish Fishery (Non-FMP):
A. Commercial fishery................. A. Trawl, gillnet, hook and
line, rod and reel.
B. Recreational fishery............... B. Hook and line, spear.
11. Whelk Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Pot and trap fishery............... B. Pot, trap.
C. Dredge............................. C. Dredge.
D. Pound net, gillnet, seine.......... D. Pound net, gillnet,
seine.
E. Recreational fishery............... E. Hand harvest.
12. Monkfish Fishery (FMP jointly managed
by NEFMC and MAFMC):
A. Trawl fishery...................... A. Trawl.
B. Longline fishery................... B. Longline, rod and reel.
C. Gillnet fishery.................... C. Gillnet.
D. Dredge fishery..................... D. Dredge.
E. Trap and pot fishery............... E. Trap and pot.
F. Recreational fishery............... F. Rod and reel, spear.
13. Tilefish Fishery (Non-FMP):
A. Groundfish hook-and-line fishery... A. Longline, handline, rod
and fishery reel.
B. Trawl fishery...................... B. Trawl.
C. Recreational fishery............... C. Rod and reel, spear.
14. Spiny Dogfish Fishery (FMP jointly
managed by MAFMC and NEFMC):
A. Gillnet fishery.................... A. Gillnet.
B. Trawl fishery...................... B. Trawl.
C. Hook and line fishery.............. C. Hook and line, rod and
reel, spear.
D. Dredge fishery..................... D. Dredge.
E. Longline fishery................... E. Longline.
F. Recreational fishery............... F. Hook and line, rod and
reel, spear.
15. Tautog Fishery (Non-FMP):
A. Gillnet fishery.................... A. Gillnet.
B. Pot and trap fishery............... B. Pot, trap.
C. Rod and reel, hook and line C. Rod and reel, hook and
handline fishery. line, handline.
D. Trawl fishery...................... D. Trawl.
E. Spear fishery...................... E. Spear.
F. Fyke net fishery................... F. Fyke net.
G. Recreational fishery............... G. Rod and reel, handline,
hook and line, spear.
16. Coastal Gillnet Fishery (Non-FMP):.... Gillnet
17. Recreational Fishery (Non-FMP) Rod and reel, handline,
spear, hook and line, hand
harvest, bandit gear,
powerhead, gillnet, cast
net.
18. NE Multispecies Fishery (FMP managed
by NEFMC):
A. NE multispecies sink gillnet A. Gillnet.
fishery.
B. North Atlantic bottom trawl fishery B. Trawl.
C. Groundfish hook and line........... C. Longline, handline, rod
and fishery reel.
D. Mixed species trap and pot fishery. D. Trap, pot.
E. Dredge fishery..................... E. Dredge.
F. Seine fishery...................... F. Seine.
G. Recreational fishery............... G. Rod and reel, handline,
spear.
19. Atlantic Skate Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Gillnet fishery.................... B. Gillnet.
C. Hook-and-line fishery.............. C. Longline and handline.
D. Dredge fishery..................... D. Dredge.
E. Recreational fishery............... E. Rod and reel.
20. Crab Fishery (Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Trap and pot fishery............... C. Trap, pot.
21. Atlantic Herring Fishery (FMP managed
by the NEFMC):
A. Trawl fishery...................... A. Trawl.
B. Purse seine fishery................ B. Purse seine.
C. Gillnet fishery.................... C. Gillnet.
D. Herring pair trawl fishery......... D. Pair trawl.
E. Dredge fishery..................... E. Dredge.
F. Recreational fishery............... F. Hook and line, gillnet.
22. South Atlantic Snapper-Grouper Fishery
(FMP managed by the SAFMC):
A. Commercial fishery................. A. Longline, rod and reel,
bandit gear, handline,
spear, powerhead.
B. Black sea bass trap and pot fishery B. Pot, trap.
C. Wreckfish fishery.................. C. Rod and reel, bandit
gear, handline.
D. Recreational fishery............... D. Handline, rod and reel,
bandit gear, spear,
powerhead.
23. South Atlantic Coastal Migratory
Pelagics Fishery (FMP managed by the
SAFMC):
A. Commercial Spanish mackerel fishery A. Handline, rod and reel,
bandit gear, gillnet, cast
net.
B. Commercial king mackerel fishery... B. Handline, rod and reel,
bandit gear.
C. Other commercial coastal migratory C. Longline, handline, rod
pelagics fishery. and reel, bandit gear.
[[Page 80]]
D. Recreational fishery............... D. Bandit gear, rod and
reel, handline, spear.
24. Calico Scallops Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Dredge fishery..................... B. Dredge.
C. Recreational fishery............... C. Hand harvest.
25. Sargassum Fishery (Non-FMP)........... Trawl.
26. South Atlantic Shrimp Fishery (FMP)... Trawl.
27. Commercial Fishery (Non-FMP).......... Trawl, pot, trap, gillnet,
pound net, dredge, seine,
handline, longline, hook
and line, rod and reel,
spear.'
------------------------------------------------------------------------
III. South Atlantic Fishery Management Council
------------------------------------------------------------------------
1. Golden Crab Fishery (FMP)............. Trap.
2. Crab Fishery (Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Trap and pot fishery............... C. Trap, pot.
3. Atlantic Red Drum Fishery (FMP)....... No harvest or possession in
the EEZ.
4. Coral and Coral Reef Fishery (FMP):
A. Octocoral commercial fishery....... Hand harvest.
B. Live rock aquaculture fishery...... Hand harvest.
5. South Atlantic Shrimp Fishery (FMP)... Trawl.
6. South Atlantic Snapper-Grouper Fishery
(FMP):
A. Commercial fishery................. A. Longline, rod and reel,
bandit gear, handline,
spear, powerhead.
B. Black sea bass trap and pot fishery B. Pot, trap.
C. Wreckfish fishery.................. C. Rod and reel, bandit
gear, handline.
D. Recreational fishery............... D. Handline, rod and reel,
bandit gear, spear,
powerhead.
7. South Atlantic Spiny Lobster Fishery
(FMP):
A. Commercial fishery................. A. Trap, pot, dip net, bully
net, snare, hand harvest.
B. Recreational fishery............... B. Trap, pot, dip net, bully
net, snare, hand harvest.
8. South Atlantic Coastal Migratory
Pelagics Fishery (FMP):
A. Commercial Spanish mackerel fishery A. Handline, rod and reel,
bandit gear, gillnet, cast
net.
B. Commercial king mackerel fishery... B. Handline, rod and reel,
bandit gear.
C. Other commercial coastal migratory C. Longline, handline, rod
pelagics fishery. and reel, bandit gear.
D. Recreational fishery............... D. Bandit gear, rod and
reel, handline, spear.
9. Spiny Dogfish Fishery (FMP jointly
managed by NEFMC and SAFMC):
A. Gillnet fishery.................... A. Gillnet.
B. Trawl fishery...................... B. Trawl.
C. Hook and line fishery.............. C. Hook and line, rod and
reel, spear, bandit gear.
D. Dredge fishery..................... D. Dredge.
E. Longline fishery................... E. Longline.
F. Recreational fishery............... F. Hook and line, rod and
reel, spear.
10. Smooth Dogfish Fishery (Non-FMP):
A. Gillnet fishery.................... A. Gillnet.
B. Trawl fishery...................... B. Trawl.
C. Hook and line fishery.............. C. Hook and line, rod and
reel, spear, bandit gear.
D. Dredge fishery..................... D. Dredge.
E. Longline fishery................... E. Longline.
F. Recreational fishery............... F. Hook and line, rod and
reel, spear.
11. Atlantic Menhaden Fishery (Non-FMP):
A. Purse seine fishery................ A. Purse seine.
B. Trawl fishery...................... B. Trawl.
C. Gillnet fishery.................... C. Gillnet.
D. Commercial hook-and-line........... D. Hook and line fishery.
E. Recreational fishery............... E. Hook and line, snagging,
cast nets.
12. Atlantic Mackerel, Squid, and Trawl.
Butterfish Trawl Fishery (Non-FMP).
13. Bait Fisheries (Non-FMP).............. Purse seine.
14. Weakfish Fishery (Non-FMP):
A. Commercial fishery................. A. Trawl, gillnet, hook and
line.
B. Recreational fishery............... B. Hook and line, spear.
15. Whelk Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Pot and trap fishery............... B. Pot, trap.
C. Dredge fishery..................... C. Dredge.
D. Recreational fishery............... D. Hand harvest.
16. Marine Life Aquarium Fishery (Non-FMP) Dip net, slurp gun, barrier
net, drop net, allowable
chemical, trap, pot, trawl.
17. Calico Scallop Fishery (Non-FMP):
A. Dredge fishery..................... A. Dredge.
B. Trawl fishery...................... B. Trawl.
C. Recreational fishery............... C. Hand harvest.
18. Summer Flounder Fishery (FMP managed
by MAFMC):
A. Commercial fishery................. A. Trawl, longline,
handline, rod and reel,
pot, trap, gillnet, dredge.
B. Recreational fishery............... B. Rod and reel, handline,
pot, trap, spear.
19. Bluefish, Croaker, and Flounder Trawl Trawl, gillnet.
and Gillnet Fishery (Bluefish FMP managed
by MAFMC).
[[Page 81]]
20. Commercial Fishery (Non-FMP).......... Trawl, gillnet, longline,
handline, hook and line,
rod and reel, bandit gear,
cast net, pot, trap,
lampara net, spear.
21. Recreational Fishery (Non-FMP)........ Rod and reel, handline,
spear, hook and line, hand
harvest, bandit gear,
powerhead, gillnet, cast
net.
22. Sargassum Fishery (Non-FMP)........... Trawl.
23. Octopus Fishery (Non-FMP) Trap, pot.................................
------------------------------------------------------------------------
IV. Gulf of Mexico Fishery Management
Council
------------------------------------------------------------------------
1. Gulf of Mexico Red Drum Fishery (FMP).. No harvest or possession in
the EEZ.
2. Coral Reef Fishery (FMP):
A. Commercial fishery................. A. Hand harvest.
B. Recreational fishery............... B. Hand harvest.
3. Gulf of Mexico Reef Fish Fishery
(FMP):
A. Snapper-Grouper reef fish longline A. Longline, handline,
and hook and line fishery. bandit gear, rod and reel,
buoy gear.
B. Pot and trap reef fish fishery..... B. Pot, trap.
C. Other commercial fishery........... C. Spear, powerhead, cast
net, trawl.
D. Recreational fishery............... D. Spear, powerhead, bandit
gear, handline, rod reel,
cast net.
4. Gulf of Mexico Shrimp Fishery (FMP):
A. Gulf of Mexico commercial fishery.. A. Trawl butterfly net,
skimmer, cast net.
B. Recreational fishery............... B. Trawl.
5. Gulf of Mexico Coastal Migratory
Pelagics Fishery (FMP):
A. Large pelagics longline fishery.... A. Longline.
B. King/Spanish mackerel gillnet B. Gillnet.
fishery.
C. Pelagic hook and line fishery...... C. Bandit gear, handline,
rod and reel.
D. Pelagic species purse seine fishery D. Purse seine.
E. Recreational fishery............... E. Bandit gear, handline,
rod and reel, spear.
Gulf of Mexico Spiny Lobster Fishery
(FMP):
A. Commercial fishery................. A. Trap, pot, dip net, bully
net, hoop net, trawl,
snare, hand harvest.
C. Recreational fishery............... C. Dip net, bully net, pot,
trap, snare, hand harvest.
6. Stone Crab Fishery (FMP):
A. Trap and pot fishery............... A. Trap, pot
B. Recreational fishery............... B. Trap, pot, hand harvest.
7. Blue Crab Fishery (Non-FMP)........... Trap, pot.
8. Golden Crab Fishery (Non-FMP)......... Trap.
9. Mullet Fishery (Non-FMP):
A. Trawl fishery...................... A. Trawl.
B. Gillnet fishery.................... B. Gillnet.
C. Pair trawl fishery................. C. Pair trawl.
D. Cast net fishery................... D. Cast net.
E. Recreational fishery............... E. Bandit gear, handline,
rod and reel, spear, cast
net.
10. Inshore Coastal Gillnet Fishery (Non- Gillnet.
FMP).
11. Octopus Fishery (Non-FMP)............. Trap, pot.
12. Marine Life Aquarium Fishery (Non-FMP) Dip net, slurp gun, barrier
net, drop net, allowable
chemical, trap, pot, trawl.
13. Coastal Herring Trawl Fishery (Non- Trawl.
FMP).
14. Butterfish Trawl Fishery (Non-FMP).... Trawl.
15. Gulf of Mexico Groundfish (Non-FMP):
A. Commercial fishery................. A. Trawl, purse seine,
gillnet.
B. Recreational fishery............... B. Hook and line, rod and
reel, spear.
16. Gulf of Mexico Menhaden Purse Seine Purse seine.
Fishery (Non-FMP).
17. Sardine Purse Seine Fishery (Non-FMP). Purse seine.
18. Oyster Fishery (Non-FMP).............. Dredge, tongs.
19. Commercial Fishery (Non-FMP).......... Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, lampara net,
spear.
20. Recreational Fishery (Non-FMP)........ Bandit gear, handline, rod
and reel, spear, bully net,
gillnet, dip net, longline,
powerhead, seine, slurp
gun, trap, trawl, harpoon,
cast net, hoop net, hook
and line, hand harvest.
------------------------------------------------------------------------
V. Caribbean Fishery Management Council
------------------------------------------------------------------------
1. Caribbean Spiny Lobster Fishery (FMP):
A. Trap/pot fishery................... A. Trap/pot.
B. Dip net fishery.................... B. Dip net.
C. Entangling net fishery............. C. Gillnet, trammel net.
D. Hand harvest fishery............... D. Hand harvest, snare.
E. Recreational fishery............... E. Dip net, trap, pot,
gillnet, trammel net.
2. Caribbean Shallow Water Reef Fish
Fishery (FMP):
[[Page 82]]
A. Longline/hook and line fishery..... A. Longline, hook and line.
B. Trap/pot fishery................... B. Trap, pot.
C. Entangling net fishery............. C. Gillnet, trammel net.
D. Recreational fishery............... D. Dip net, handline, rod
and reel, slurp gun, spear.
3. Coral and Reef Resources Fishery
(FMP):
A. Commercial fishery................. A. Dip net, slurp gun.
B. Recreational fishery............... B. Dip net, slurp gun, hand
harvest.
4. Queen Conch Fishery (FMP):
A. Commercial fishery................. A. Hand harvest.
B. Recreational fishery............... B. Hand harvest.
5. Caribbean Pelagics Fishery (Non-FMP):
A. Pelagics drift gillnet fishery..... A. Gillnet.
B. Pelagics longline/hook and line B. Longline/hook and line.
fishery.
C. Recreational fishery............... C. Spear, handline,
longline, rod and reel.
6. Commercial Fishery (Non-FMP).......... Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
7. Recreational Fishery (Non-FMP)........ Rod and reel, hook and line,
spear, powerhead, handline,
hand harvest, cast net.
------------------------------------------------------------------------
VI. Pacific Fishery Management Council
------------------------------------------------------------------------
1. Washington, Oregon, and California
Salmon Fisheries (FMP):
A. Salmon set gillnet fishery......... A. Gillnet.
B. Salmon hook and line fishery....... B. Hook and line.
C. Trawl fishery...................... C. Trawl.
D. Recreational fishery............... D. Rod and reel.
2. West Coast Groundfish Fisheries (FMP):
A. Pacific groundfish trawl fishery... A. Trawl.
B. Set gillnet fishery................ B. Gillnet.
C. Groundfish longline and setline C. Longline.
fishery.
D. Groundfish handline and hook and D. Handline, hook and line.
line fishery.
E. Groundfish pot and trap fishery.... E. Pot, trap.
F. Recreational fishery............... F. Rod and reel, handline,
spear, hook and line.
3. Northern Anchovy Fishery (FMP)........ Purse seine, lampara net.
4. Angel Shark, White Croaker, California Gillnet.
Halibut, White Sea Bass, Pacific Mackerel
Large-Mesh Set Net Fishery (Non-FMP).
5. Thresher Shark and Swordfish Drift Gillnet.
Gillnet Fishery (Non-FMP).
6. Pacific Shrimp and Prawn Fishery (Non-
FMP):
A. Pot and trap fishery............... A. Pot, trap.
B. Trawl fishery...................... B. Trawl.
7. Lobster and Rock Crab Pot and Trap Pot, trap.
Fishery (Non-FMP).
8. Pacific Halibut Fishery (Non-FMP):
A. Longline and setline fishery....... A. Longline.
B. Hook-and-line fishery.............. B. Hook and line.
9. California Halibut Trawl and Trammel Trawl, trammel net.
Net Fishery.
10. Shark and Bonito Longline and Setline Longline.
Fishery (Non-FMP).
11. Dungeness Crab Pot and Trap Fishery Pot, trap.
(Non-FMP).
12. Hagfish Pot and Trap Fishery (Non-FMP) Pot, trap.
13. Pacific Albacore and Other Tuna Hook- Hook and line.
and-line Fishery (Non-FMP).
14. Pacific Swordfish Harpoon Fishery (Non- Harpoon.
FMP).
15. Pacific Scallop Dredge Fishery (Non- Dredge.
FMP).
16. Pacific Yellowfin, Skipjack Tuna, Purse seine.
Purse Seine Fishery, (Non-FMP).
17. Market Squid Fishery (Non-FMP)........ Purse seine, dip net.
18. Pacific Sardine, Pacific Mackerel, Purse seine.
Pacific Saury, Pacific Bonito, and Jack
Mackerel Purse Seine Fishery (Non-FMP).
19. Finfish and Shellfish Live Trap, Hook- Trap, handline, hook and
and-line, and Handline Fishery (Non-FMP). line.
20. Recreational Fishery (Non-FMP)........ Spear, trap, handline, pot,
hook and line, rod and
reel, hand harvest.
21. Commercial Fishery (Non-FMP).......... Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
VII. North Pacific Fishery Management Council
------------------------------------------------------------------------
1. Alaska Scallop Fishery (FMP).......... Dredge.
2. Bering Sea (BS) and Aleutian Islands
(AI) King and Tanner Crab Fishery (FMP):
Pot fishery........................... Pot.
3. BS and AI King and Tanner Crab Fishery
(Non-FMP):
Recreational fishery.................. Pot.
4. BS and AI Groundfish Fishery (FMP):
A. Groundfish trawl fishery........... A. Trawl.
B. Bottomfish hook-and-line, and B. Hook and line, handline.
handline fishery.
C. Longline fishery................... C. Longline.
D. BS and AI pot and trap fishery..... D. Pot, trap.
5. BS and AI Groundfish Recreational Handline, rod and reel, hook
Fishery (Non-FMP). and line, pot, trap.
6. Gulf of Alaska (GOA) Groundfish
Fishery (FMP):
A. Groundfish trawl fishery........... A. Trawl.
B. Bottomfish hook-and-line and B. Hook and line, handline.
handline fishery.
C. Longline fishery................... C. Longline.
D. GOA pot and trap fishery........... D. Pot, trap.
E. Recreational fishery............... E. Handline, rod and reel,
hook and line, pot, trap.
7. Pacific Halibut Fishery (Non-FMP):
Hook-and-line, Jig, and Troll Fishery. Hook and line.
[[Page 83]]
8. Alaska High Seas Salmon Hook and Line Hook and line.
Fishery (FMP).
9. Alaska Salmon Fishery (Non-FMP):
A. Hook-and-line fishery.............. A. Hook and line.
B. Gillnet fishery.................... B. Gillnet.
C. Purse seine fishery................ C. Purse seine.
D. Recreational fishery............... D. Handline, rod and reel,
hook and line.
10. Finfish Purse Seine Fishery (Non-FMP). Purse seine.
11. Octopus/Squid Longline Fishery (Non- Longline.
FMP).
12. Finfish Handline and Hook-and-line Handline, hook and line.
Fishery (Non-FMP).
13. Recreational Fishery (Non-FMP)........ Handline, rod and reel, hook
line.
14. Commercial Fishery (Non-FMP).......... Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
VIII. Western Pacific Fishery Management Council
------------------------------------------------------------------------
1. Western Pacific Crustacean Fishery Trap, hand harvest, hoop
(FMP) net.
2. Western Pacific Crustacean Fishery
(Non-FMP):
A. Commercial fishery................. A. Gillnet, hand harvest,
hoop net, spear, snare,
trap, trawl.
B. Recreational fishery............... B. Gillnet, hand harvest,
hoop net, spear, snare,
trap.
C. Charter fishery.................... C. Hand harvest, spear.
3. Western Pacific Precious Corals
Fishery (FMP):
A. Tangle net dredge fishery.......... A. Tangle net dredge.
B. Submersible fishery................ B. Submersible.
C. Dive fishery....................... C. Hand harvest.
D. Recreational fishery............... D. Hand harvest.
4. Western Pacific Precious Corals Hand harvest, submersible,
Fishery (Non-FMP). tangle net dredge.
5. Western Pacific Bottomfish and
Seamount Groundfish Fishery (FMP):
A. Bottomfish hook-and-line fishery... A. Bandit gear, buoy gear,
handline, hook and line,
rod and reel, hand harvest.
B. Seamount groundfish fishery........ B. Longline, trawl.
C. Bottom longline fishery............ C. Longline, hook and line.
D. Trap fishery....................... D. Trap.
E. Spear fishery...................... E. Spear, powerhead.
6. Western Pacific Bottomfish and
Seamount Groundfish Fishery (Non-FMP):
A. Commercial fishery................. A. Bandit gear, buoy gear,
gillnet, handline, hook-and-
line, longline, rod and
reel, spear, trap.
B. Recreational fishery............... B. Bandit gear, buoy gear,
Gillnet, handline, hook and
line, longline, rod and
reel, spear, trap, slurp
gun, hand harvest.
C. Charter fishery.................... C. Bandit gear, buoy gear,
handline, hook-and-line,
rod and reel, spear.
7. Western Pacific Pelagics Fishery
(FMP):
A. Longline Fisher.................... A. Longline.
B. Hook and line fishery.............. B. Bandit gear, buoy gear,
handline, hook and line,
rod and reel.
C. Purse seine fishery................ C. Lampara net, purse seine.
D. Spear fishery...................... D. Spear, powerhead.
8. Western Pacific Pelagics Fishery (Non-
FMP):
A. Recreational fishery............... A. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and real, spear.
B. Commercial fishery................. B. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and reel, spear.
C. Charter fishery.................... C. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and reel, spear.
9. Western Pacific Coastal Pelagics Bandit gear, buoy gear, dip
Fishery (Non-FMP). net, gillnet, handline,
hook and line, hoop net,
lampara net, purse seine,
rod and reel, spear.
10. Western Pacific Squid and Octopus Bandit gear, hand harvest,
Fishery (Non-FMP). hook and line, rod and
reel, spear, trap.
11. Western Pacific Coral Reef Fishery Allowable chemical, barrier
(Non-FMP). net, dip net, gillnet, hand
harvest, seine, slurp gun,
trap, spear, rod and reel,
hook and line.
12. Recreational Fishery (Non-FMP)........ Rod and reel, hook and line,
handline, hand harvest,
spear.
[[Page 84]]
13. Commercial Fishery (Non-FMP).......... Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
IX. Secretary of Commerce
------------------------------------------------------------------------
1. Atlantic Tunas, Swordfish, and Sharks
Fisheries (FMP):
A. Swordfish handgear fishery......... A. Rod and reel, harpoon,
handline, bandit gear.
B. Pelagic longline fishery........... B. Longline.
C. Shark drift gillnet fishery........ C. Gillnet.
D. Shark bottom longline fishery...... D. Longline.
E. Shark handgear fishery............. E. Rod and reel, handline,
bandit gear.
F. Tuna purse seine fishery........... F. Purse seine.
G. Tuna recreational fishery.......... G. Rod and reel, handline.
H. Tuna handgear fishery.............. H. Rod and reel, harpoon,
handline, bandit gear.
I. Tuna harpoon fishery............... I. Harpoon.
2. Atlantic Billfish Fishery (FMP):
Recreational fishery.................. Rod and reel.
3. Commercial Fisheries (Non-FMP)........ Rod and reel, handline,
longline, gillnet, harpoon,
bandit gear, purse seine
------------------------------------------------------------------------
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 27217; May 18, 1998; 64 FR 4037, Jan. 27, 1999; 64 FR 29134, May 28,
1999; 64 FR 67516, Dec. 2, 1999]
Sec. 600.730 Facilitation of enforcement.
(a) General. The operator of, or any other person aboard, any
fishing vessel subject to parts 622 through 699 of this chapter must
immediately comply with instructions and signals issued by an authorized
officer to stop the vessel and with instructions to facilitate safe
boarding and inspection of the vessel, its gear, equipment, fishing
record (where applicable), and catch for purposes of enforcing the
Magnuson-Stevens Act or any other statute administered by NOAA and this
chapter.
(b) Communications. (1) Upon being approached by a USCG vessel or
aircraft, or other vessel or aircraft with an authorized officer aboard,
the operator of a fishing vessel must be alert for communications
conveying enforcement instructions.
(2) VHF-FM radiotelephone is the preferred method for communicating
between vessels. If the size of the vessel and the wind, sea, and
visibility conditions allow, a loudhailer may be used instead of the
radio. Hand signals, placards, high frequency radiotelephone, or voice
may be employed by an authorized officer, and message blocks may be
dropped from an aircraft.
(3) If other communications are not practicable, visual signals may
be transmitted by flashing light directed at the vessel signaled. USCG
units will normally use the flashing light signal ``L'' as the signal to
stop. In the International Code of Signals, ``L'' (.-..) means ``you
should stop your vessel instantly.'' (Period (.) means a short flash of
light; dash (-) means a long flash of light.)
(4) Failure of a vessel's operator promptly to stop the vessel when
directed to do so by an authorized officer using loudhailer,
radiotelephone, flashing light signal, or other means constitutes prima
facie evidence of the offense of refusal to permit an authorized officer
to board.
(5) The operator of a vessel who does not understand a signal from
an enforcement unit and who is unable to obtain clarification by
loudhailer or radiotelephone must consider the signal to be a command to
stop the vessel instantly.
(c) Boarding. The operator of a vessel directed to stop must:
(1) Guard Channel 16, VHF-FM, if so equipped.
(2) Stop immediately and lay to or maneuver in such a way as to
allow the authorized officer and his/her party to come aboard.
(3) Except for those vessels with a freeboard of 4 ft (1.2 m) or
less, provide a safe ladder, if needed, for the authorized officer and
his/her party to come aboard.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope or safety line, and
illumination for the ladder.
(5) Take such other actions as necessary to facilitate boarding and
to ensure the safety of the authorized officer and the boarding party.
(d) Signals. The following signals, extracted from the International
Code of Signals, may be sent by flashing light
[[Page 85]]
by an enforcement unit when conditions do not allow communications by
loudhailer or radiotelephone. Knowledge of these signals by vessel
operators is not required. However, knowledge of these signals and
appropriate action by a vessel operator may preclude the necessity of
sending the signal ``L'' and the necessity for the vessel to stop
instantly. (Period (.) means a short flash of light; dash (-) means a
long flash of light.)
(1) ``AA'' repeated (.-.-) is the call to an unknown station. The
operator of the signaled vessel should respond by identifying the vessel
by radiotelephone or by illuminating the vessel's identification.
(2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at
slow speed, a boat is coming to you.'' This signal is normally employed
when conditions allow an enforcement boarding without the necessity of
the vessel being boarded coming to a complete stop, or, in some cases,
without retrieval of fishing gear which may be in the water.
(3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I
am going to board you.''
[61 FR 32540, June 24, 1996, as amended at 61 FR 37225, July 17, 1996;
63 FR 7075, Feb. 12, 1998]
Sec. 600.735 Penalties.
Any person committing, or fishing vessel used in the commission of a
violation of the Magnuson-Stevens Act or any other statute administered
by NOAA and/or any regulation issued under the Magnuson-Stevens Act, is
subject to the civil and criminal penalty provisions and civil
forfeiture provisions of the Magnuson-Stevens Act, to this section, to
15 CFR part 904 (Civil Procedures), and to other applicable law.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.740 Enforcement policy.
(a) The Magnuson-Stevens Act provides four basic enforcement
remedies for violations, in ascending order of severity, as follows:
(1) Issuance of a citation (a type of warning), usually at the scene
of the offense (see 15 CFR part 904, subpart E).
(2) Assessment by the Administrator of a civil money penalty.
(3) For certain violations, judicial forfeiture action against the
vessel and its catch.
(4) Criminal prosecution of the owner or operator for some offenses.
It shall be the policy of NMFS to enforce vigorously and equitably the
provisions of the Magnuson-Stevens Act by utilizing that form or
combination of authorized remedies best suited in a particular case to
this end.
(b) Processing a case under one remedial form usually means that
other remedies are inappropriate in that case. However, further
investigation or later review may indicate the case to be either more or
less serious than initially considered, or may otherwise reveal that the
penalty first pursued is inadequate to serve the purposes of the
Magnuson-Stevens Act. Under such circumstances, the Agency may pursue
other remedies either in lieu of or in addition to the action originally
taken. Forfeiture of the illegal catch does not fall within this general
rule and is considered in most cases as only the initial step in
remedying a violation by removing the ill-gotten gains of the offense.
(c) If a fishing vessel for which a permit has been issued under the
Magnuson-Stevens Act is used in the commission of an offense prohibited
by section 307 of the Magnuson-Stevens Act, NOAA may impose permit
sanctions, whether or not civil or criminal action has been undertaken
against the vessel or its owner or operator. In some cases, the
Magnuson-Stevens Act requires permit sanctions following the assessment
of a civil penalty or the imposition of a criminal fine. In sum, the
Magnuson-Stevens Act treats sanctions against the fishing vessel permit
to be the carrying out of a purpose separate from that accomplished by
civil and criminal penalties against the vessel or its owner or
operator.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.745 Scientific research activity, exempted fishing, and exempted educational activity.
(a) Scientific research activity. Nothing in this section is
intended to inhibit or
[[Page 86]]
prevent any scientific research activity conducted by a scientific
research vessel. Persons planning to conduct scientific research
activities in the EEZ are encouraged to submit to the appropriate
Regional Administrator, Director, or designee, 60 days or as soon as
practicable prior to its start, a scientific research plan for each
scientific cruise. The Regional Administrator, Director, or designee
will acknowledge notification of scientific research activity by issuing
to the operator or master of that vessel, or to the sponsoring
institution, a letter of acknowledgment. This letter of acknowledgment
is separate and distinct from any permit required by any other
applicable law. If the Regional Administrator, Director, or designee,
after review of a research plan, determines that it does not constitute
scientific research but rather fishing, the Regional Administrator,
Director, or designee will inform the applicant as soon as practicable
and in writing. The Regional Administrator, Director, or designee may
also make recommendations to revise the research plan to make the cruise
acceptable as scientific research activity or recommend the applicant
request an EFP. In order to facilitate identification of activity as
scientific research, persons conducting scientific research activities
are advised to carry a copy of the scientific research plan and the
letter of acknowledgment on board the scientific research vessel.
Activities conducted in accordance with a scientific research plan
acknowledged by such a letter are presumed to be scientific research
activity. The presumption may be overcome by showing that an activity
does not fit the definition of scientific research activity or is
outside the scope of the scientific research plan.
(b) Exempted fishing.--(1) General. A NMFS Regional Administrator or
Director may authorize, for limited testing, public display, data
collection, exploratory, health and safety, environmental cleanup, and/
or hazard removal purposes, the target or incidental harvest of species
managed under an FMP or fishery regulations that would otherwise be
prohibited. Exempted fishing may not be conducted unless authorized by
an EFP issued by a Regional Administrator or Director in accordance with
the criteria and procedures specified in this section. The Regional
Administrator or Director may charge a fee to recover the administrative
expenses of issuing an EFP. The amount of the fee will be calculated, at
least annually, in accordance with procedures of the NOAA Handbook for
determining administrative costs of each special product or service; the
fee may not exceed such costs. Persons may contact the appropriate
Regional Administrator or Director to find out the applicable fee.
(2) Application. An applicant for an EFP shall submit a completed
application package to the appropriate Regional Administrator or
Director, as soon as practicable and at least 60 days before the desired
effective date of the EFP. Submission of an EFP application less than 60
days before the desired effective date of the EFP may result in a
delayed effective date because of review requirements. The application
package must include payment of any required fee as specified by
paragraph (b)(1) of this section, and a written application that
includes, but is not limited to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A statement of the purposes and goals of the exempted fishery
for which an EFP is needed, including justification for issuance of the
EFP.
(iv) For each vessel to be covered by the EFP, as soon as the
information is available and before operations begin under the EFP:
(A) A copy of the USCG documentation, state license, or registration
of each vessel, or the information contained on the appropriate
document.
(B) The current name, address, and telephone number of the owner and
master, if not included on the document provided for the vessel.
(v) The species (target and incidental) expected to be harvested
under the EFP, the amount(s) of such harvest necessary to conduct the
exempted fishing, the arrangements for disposition of all regulated
species harvested under the EFP, and any anticipated
[[Page 87]]
impacts on marine mammals or endangered species.
(vi) For each vessel covered by the EFP, the approximate time(s) and
place(s) fishing will take place, and the type, size, and amount of gear
to be used.
(vii) The signature of the applicant.
(viii) The Regional Administrator or Director, as appropriate, may
request from an applicant additional information necessary to make the
determinations required under this section. An incomplete application or
an application for which the appropriate fee has not been paid will not
be considered until corrected in writing and the fee paid. An applicant
for an EFP need not be the owner or operator of the vessel(s) for which
the EFP is requested.
(3) Issuance. (i) The Regional Administrator or Director, as
appropriate, will review each application and will make a preliminary
determination whether the application contains all of the required
information and constitutes an activity appropriate for further
consideration. If the Regional Administrator or Director finds that any
application does not warrant further consideration, both the applicant
and the affected Council(s) will be notified in writing of the reasons
for the decision. If the Regional Administrator or Director determines
that any application warrants further consideration, notification of
receipt of the application will be published in the Federal Register
with a brief description of the proposal, and the intent of NMFS to
issue an EFP. Interested persons will be given a 15- to 45-day
opportunity to comment and/or comments will be requested during public
testimony at a Council meeting. The notification may establish a cut-off
date for receipt of additional applications to participate in the same,
or a similar, exempted fishing activity. The Regional Administrator or
Director also will forward copies of the application to the Council(s),
the USCG, and the appropriate fishery management agencies of affected
states, accompanied by the following information:
(A) The effect of the proposed EFP on the target and incidental
species, including the effect on any TAC.
(B) A citation of the regulation or regulations that, without the
EFP, would prohibit the proposed activity.
(C) Biological information relevant to the proposal, including
appropriate statements of environmental impacts, including impacts on
marine mammals and threatened or endangered species.
(ii) If the application is complete and warrants additional
consultation, the Regional Administrator or Director may consult with
the appropriate Council(s) concerning the permit application during the
period in which comments have been requested. The Council(s) or the
Administrator or Regional Administrator shall notify the applicant in
advance of any meeting at which the application will be considered, and
offer the applicant the opportunity to appear in support of the
application.
(iii) As soon as practicable after receiving responses from the
agencies identified in paragraph (b)(3)(i) of this section, and/or after
the consultation, if any, described in paragraph (b)(3)(ii) of this
section, the Regional Administrator or Director shall notify the
applicant in writing of the decision to grant or deny the EFP, and, if
denied, the reasons for the denial. Grounds for denial of an EFP
include, but are not limited to, the following:
(A) The applicant has failed to disclose material information
required, or has made false statements as to any material fact, in
connection with his or her application; or
(B) According to the best scientific information available, the
harvest to be conducted under the permit would detrimentally affect the
well-being of the stock of any regulated species of fish, marine mammal,
or threatened or endangered species in a significant way; or
(C) Issuance of the EFP would have economic allocation as its sole
purpose; or
(D) Activities to be conducted under the EFP would be inconsistent
with the intent of this section, the management objectives of the FMP,
or other applicable law; or
(E) The applicant has failed to demonstrate a valid justification
for the permit; or
[[Page 88]]
(F) The activity proposed under the EFP could create a significant
enforcement problem.
(iv) The decision of a Regional Administrator or Director to grant
or deny an EFP is the final action of NMFS. If the permit, as granted,
is significantly different from the original application, or is denied,
NMFS may publish notification in the Federal Register describing the
exempted fishing to be conducted under the EFP or the reasons for
denial.
(v) The Regional Administrator or Director may attach terms and
conditions to the EFP consistent with the purpose of the exempted
fishing, including, but not limited to:
(A) The maximum amount of each regulated species that can be
harvested and landed during the term of the EFP, including trip
limitations, where appropriate.
(B) The number, size(s), name(s), and identification number(s) of
the vessel(s) authorized to conduct fishing activities under the EFP.
(C) The time(s) and place(s) where exempted fishing may be
conducted.
(D) The type, size, and amount of gear that may be used by each
vessel operated under the EFP.
(E) The condition that observers, a vessel monitoring system, or
other electronic equipment be carried on board vessels operated under an
EFP, and any necessary conditions, such as predeployment notification
requirements.
(F) Reasonable data reporting requirements.
(G) Other conditions as may be necessary to assure compliance with
the purposes of the EFP, consistent with the objectives of the FMP and
other applicable law.
(H) Provisions for public release of data obtained under the EFP
that are consistent with NOAA confidentiality of statistics procedures
at set out in subpart E. An applicant may be required to waive the right
to confidentiality of information gathered while conducting exempted
fishing as a condition of an EFP.
(4) Duration. Unless otherwise specified in the EFP or a superseding
notice or regulation, an EFP is effective for no longer than 1 year,
unless revoked, suspended, or modified. EFPs may be renewed following
the application procedures in this section.
(5) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(6) Transfer. EFPs issued under this section are not transferable or
assignable. An EFP is valid only for the vessel(s) for which it is
issued.
(7) Inspection. Any EFP issued under this section must be carried on
board the vessel(s) for which it was issued. The EFP must be presented
for inspection upon request of any authorized officer.
(8) Sanctions. Failure of a permittee to comply with the terms and
conditions of an EFP may be grounds for revocation, suspension, or
modification of the EFP with respect to all persons and vessels
conducting activities under the EFP. Any action taken to revoke,
suspend, or modify an EFP for enforcement purposes will be governed by
15 CFR part 904, subpart D.
(c) Reports. (1) Persons conducting scientific research activity are
requested to submit a copy of any cruise report or other publication
created as a result of the cruise, including the amount, composition,
and disposition of their catch, to the appropriate Science and Research
Director.
(2) Persons fishing under an EFP are required to report their
catches to the appropriate Regional Administrator or Director, as
specified in the EFP.
(d) Exempted educational activities--(1) General. A NMFS Regional
Administrator or Director may authorize, for educational purposes, the
target or incidental harvest of species managed under an FMP or fishery
regulations that would otherwise be prohibited. The decision of a
Regional Administrator or Director to grant or deny an exempted
educational activity authorization is the final action of NMFS. Exempted
educational activities may not be conducted unless authorized in writing
by a Regional Administrator or Director in accordance with the criteria
and procedures specified in this section. Such authorization will be
issued without charge.
(2) Application. An applicant for an exempted educational activity
authorization shall submit to the appropriate
[[Page 89]]
Regional Administrator or Director, at least 15 days before the desired
effective date of the authorization, a written application that
includes, but is not limited to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A brief statement of the purposes and goals of the exempted
educational activity for which authorization is requested, including a
general description of the arrangements for disposition of all species
collected.
(iv) Evidence that the sponsoring institution is a valid educational
institution, such as accreditation by a recognized national or
international accreditation body.
(v) The scope and duration of the activity.
(vi) For each vessel to be covered by the authorization:
(A) A copy of the U.S. Coast Guard documentation, state license, or
registration of the vessel, or the information contained on the
appropriate document.
(B) The current name, address, and telephone number of the owner and
master, if not included on the document provided for the vessel.
(vii) The species and amounts expected to be caught during the
exempted educational activity.
(viii) For each vessel covered by the authorization, the approximate
time(s) and place(s) fishing will take place, and the type, size, and
amount of gear to be used.
(ix) The signature of the applicant.
(x) The Regional Administrator or Director may request from an
applicant additional information necessary to make the determinations
required under this section. An incomplete application will not be
considered until corrected in writing.
(3) Issuance. (i) The Regional Administrator or Director, as
appropriate, will review each application and will make a determination
whether the application contains all of the required information, is
consistent with the goals, objectives, and requirements of the FMP or
regulations and other applicable law, and constitutes a valid exempted
educational activity. The applicant will be notified in writing of the
decision within 5 working days of receipt of the application.
(ii) The Regional Administrator or Director may attach terms and
conditions to the authorization, consistent with the purpose of the
exempted educational activity, including, but not limited to:
(A) The maximum amount of each regulated species that may be
harvested.
(B) The time(s) and place(s) where the exempted educational activity
may be conducted.
(C) The type, size, and amount of gear that may be used by each
vessel operated under the authorization.
(D) Reasonable data reporting requirements.
(E) Such other conditions as may be necessary to assure compliance
with the purposes of the authorization, consistent with the objectives
of the FMP or regulations.
(F) Provisions for public release of data obtained under the
authorization, consistent with NOAA confidentiality of statistics
procedures in subpart E. An applicant may be required to waive the right
to confidentiality of information gathered while conducting exempted
educational activities as a condition of the authorization.
(iii) The authorization will specify the scope of the authorized
activity and will include, at a minimum, the duration, vessel(s),
species and gear involved in the activity, as well as any additional
terms and conditions specified under paragraph (d)(3)(ii) of this
section.
(4) Duration. Unless otherwise specified, authorization for an
exempted educational activity is effective for no longer than 1 year,
unless revoked, suspended, or modified. Authorizations may be renewed
following the application procedures in this section.
(5) Alteration. Any authorization that has been altered, erased, or
mutilated is invalid.
(6) Transfer. Authorizations issued under this paragraph (d) are not
transferable or assignable.
(7) Inspection. Any authorization issued under this paragraph (d)
must be carried on board the vessel(s) for which it was issued or be in
possession of the
[[Page 90]]
applicant to which it was issued while the exempted educational activity
is being conducted. The authorization must be presented for inspection
upon request of any authorized officer. Activities that meet the
definition of fishing, despite an educational purpose, are fishing. An
authorization may allow covered fishing activities; however, fishing
activities conducted outside the scope of an authorization for exempted
educational activities are illegal.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.746 Observers.
(a) Applicability. This section applies to any fishing vessel
required to carry an observer as part of a mandatory observer program or
carrying an observer as part of a voluntary observer program under the
Magnuson-Stevens Act, MMPA (16 U.S.C. 1361 et seq.), the ATCA (16 U.S.C.
971 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et
seq.), or any other U.S. law.
(b) Observer requirement. An observer is not required to board, or
stay aboard, a vessel that is unsafe or inadequate as described in
paragraph (c) of this section.
(c) Inadequate or unsafe vessels. (1) A vessel is inadequate or
unsafe for purposes of carrying an observer and allowing operation of
normal observer functions if it does not comply with the applicable
regulations regarding observer accommodations (see 50 CFR parts 229,
285, 300, 600, 622, 648, 660, 678, and 679) or if it has not passed a
USCG safety examination or inspection. A vessel that has passed a USCG
safety examination or inspection must display one of the following:
(i) A current Commercial Fishing Vessel Safety Examination decal,
issued within the last 2 years, that certifies compliance with
regulations found in 33 CFR, chapter I and 46 CFR, chapter I;
(ii) A certificate of compliance issued pursuant to 46 CFR 28.710;
or
(iii) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
(2) Upon request by an observer, a NMFS employee, or a designated
observer provider, a vessel owner/operator must provide correct
information concerning any item relating to any safety or accommodation
requirement prescribed by law or regulation. A vessel owner or operator
must also allow an observer, a NMFS employee, or a designated observer
provider to visually examine any such item.
(3) Pre-trip safety check. Prior to each observed trip, the observer
is encouraged to briefly walk through the vessel's major spaces to
ensure that no obviously hazardous conditions exist. In addition, the
observer is encouraged to spot check the following major items for
compliance with applicable USCG regulations:
(i) Personal flotation devices/immersion suits;
(ii) Ring buoys;
(iii) Distress signals;
(iv) Fire extinguishing equipment;
(v) Emergency position indicating radio beacon (EPIRB), when
required; and
(vi) Survival craft, when required.
(d) Corrective measures. If a vessel is inadequate or unsafe for
purposes of carrying an observer and allowing operation of normal
observer functions, NMFS may require the vessel owner or operator either
to:
(1) Submit to and pass a USCG safety examination or inspection; or
(2) Correct the deficiency that is rendering the vessel inadequate
or unsafe (e.g., if the vessel is missing one personal flotation device,
the owner or operator could be required to obtain an additional one),
before the vessel is boarded by the observer.
(e) Timing. The requirements of this section apply both at the time
of the observer's boarding, at all times the observer is aboard, and at
the time the observer is disembarking from the vessel.
(f) Effect of inadequate or unsafe status. A vessel that would
otherwise be required to carry an observer, but is inadequate or unsafe
for purposes of carrying an observer and for allowing operation of
normal observer functions, is prohibited from fishing without observer
coverage.
[63 FR 27217, May 18, 1998]
[[Page 91]]
Sec. 600.747 Guidelines and procedures for determining new fisheries and gear.
(a) General. Section 305(a) of the Magnuson-Stevens Act requires the
Secretary to prepare a list of all fisheries under the authority of each
Council, or the Director in the case of Atlantic highly migratory
species, and all gear used in such fisheries. This section contains
guidelines in paragraph (b) for determining when fishing gear or a
fishery is sufficiently different from those listed in Sec. 600.725(v)
as to require notification of a Council or the Director in order to use
the gear or participate in the unlisted fishery. This section also
contains procedures in paragraph (c) for notification of a Council or
the Director of potentially new fisheries or gear, and for amending the
list of fisheries and gear.
(b) Guidelines. The following guidance establishes the basis for
determining when fishing gear or a fishery is sufficiently different
from those listed to require notification of the appropriate Council or
the Director.
(1) The initial step in the determination of whether a fishing gear
or fishery is sufficiently different to require notification is to
compare the gear or fishery in question to the list of authorized
fisheries and gear in Sec. 600.725(v) and to the existing gear
definitions in Sec. 600.10.
(2) If the gear in question falls within the bounds of a definition
in Sec. 600.10 for an allowable gear type within that fishery, as listed
under Sec. 600.725(v), then the gear is not considered different, is
considered allowable gear, and does not require notification of the
Council or Secretary 90 days before it can be used in that fishery.
(3) If, for any reason, the gear is not consistent with a gear
definition for a listed fishery as described in paragraph (b)(2) of this
section, the gear is considered different and requires Council or
Secretarial notification as described in paragraph (c) of this section
90 days before it can be used in that fishery.
(4) If a fishery falls within the bounds of the list of authorized
fisheries and gear in Sec. 600.725(v) under the Council's or Secretary's
authority, then the fishery is not considered different, is considered
an allowable fishery and does not require notification of the Council or
Director before that fishery can occur.
(5) If a fishery is not already listed in the list of authorized
fisheries and gear in Sec. 600.725(v), then the fishery is considered
different and requires notification as described in paragraph (c) of
this section 90 days before it can occur.
(c) Procedures. If a gear or fishery does not appear on the list in
Sec. 600.725(v), or if the gear is different from that defined in
Sec. 600.10, the process for notification, and consideration by a
Council or the Director, is as follows:
(1) Notification. After July 26, 1999, no person or vessel may
employ fishing gear or engage in a fishery not included on the list of
approved gear types in Sec. 600.725(v) without notifying the appropriate
Council or the Director at least 90 days before the intended use of that
gear.
(2) Notification procedures. (i) A signed return receipt for the
notice serves as adequate evidence of the date that the notification was
received by the appropriate Council or the Director, in the case of
Atlantic highly migratory species, and establishes the beginning of the
90-day notification period, unless required information in the
notification is incomplete.
(ii) The notification must include:
(A) Name, address, and telephone number of the person submitting the
notification.
(B) Description of the gear.
(C) The fishery or fisheries in which the gear is or will be used.
(D) A diagram and/or photograph of the gear, as well as any
specifications and dimensions necessary to define the gear.
(E) The season(s) in which the gear will be fished.
(F) The area(s) in which the gear will be fished.
(G) The anticipated bycatch species associated with the gear,
including protected species, such as marine mammals, sea turtles, sea
birds, or species listed as endangered or threatened under the ESA.
(H) How the gear will be deployed and fished, including the portions
of the marine environment where the gear
[[Page 92]]
will be deployed (surface, midwater, and bottom).
(iii) Failure to submit complete and accurate information will
result in a delay in beginning the 90-day notification period. The 90-
day notification period will not begin until the information received is
determined to be accurate and complete.
(3) Action upon receipt of notification. (i) Species other than
Atlantic Highly Migratory Species. (A) Upon signing a return receipt of
the notification by certified mail regarding an unlisted fishery or
gear, a Council must immediately begin consideration of the notification
and send a copy of the notification to the appropriate Regional
Administrator.
(B) If the Council finds that the use of an unlisted gear or
participation in a new fishery would not compromise the effectiveness of
conservation and management efforts, it shall:
(1) Recommend to the RA that the list be amended;
(2) Provide rationale and supporting analysis, as necessary, for
proper consideration of the proposed amendment; and
(3) Provide a draft proposed rule for notifying the public of the
proposed addition, with a request for comment.
(C) If the Council finds that the proposed gear or fishery will be
detrimental to conservation and management efforts, it will recommend to
the RA that the authorized list of fisheries and gear not be amended,
that a proposed rule not be published, give reasons for its
recommendation of a disapproval, and may request NMFS to publish
emergency or interim regulations, and begin preparation of an FMP or
amendment to an FMP, if appropriate.
(D) After considering information in the notification and Council's
recommendation, NMFS will decide whether to publish a proposed rule. If
information on the new gear or fishery being considered indicates it is
likely that it will compromise conservation and management efforts under
the Magnuson-Stevens Act, and no additional new information is likely to
be gained from a public comment period, then a proposed rule will not be
published and NMFS will notify the appropriate Council. In such an
instance, NMFS will publish emergency or interim regulations to prohibit
or restrict use of the gear or participation in the fishery. If NMFS
determines that the proposed amendment is not likely to compromise
conservation and management efforts under the Magnuson-Stevens Act, NMFS
will publish a proposed rule in the Federal Register with a request for
public comment.
(ii) Atlantic Highly Migratory Species. (A) Upon signing a return
receipt of the notification by certified mail regarding an unlisted
fishery or gear for Atlantic highly migratory species (HMS), NMFS will
immediately begin consideration of the notification.
(B) Based on information in the notification and submitted by the
Council, NMFS will make a determination whether the use of an unlisted
gear or participation in an unlisted HMS fishery will compromise the
effectiveness of conservation and management efforts under the Magnuson-
Stevens Act. If it is determined that the proposed amendment will not
compromise conservation and management efforts, NMFS will publish a
proposed rule.
(C) If NMFS finds that the proposed gear or fishery will be
detrimental to conservation and management efforts in this initial stage
of review, it will not publish a proposed rule and notify the applicant
of the negative determination with the reasons therefor.
(4) Final determination and publication of a final rule. Following
public comment, NMFS will approve or disapprove the amendment to the
list of gear and fisheries.
(i) If approved, NMFS will publish a final rule in the Federal
Register and notify the applicant and the Council, if appropriate, of
the final approval.
(ii) If disapproved, NMFS will withdraw the proposed rule, notify
the applicant and the Council, if appropriate, of the disapproval;
publish emergency or interim regulations, if necessary, to prohibit or
restrict the use of gear or the participation in a fishery; and either
notify the Council of the need to amend an FMP or prepare an amendment
to an FMP in the case of Atlantic highly migratory species.
[64 FR 4043, Jan. 27, 1999]
[[Page 93]]
Subpart I--Fishery Negotiation Panels
Source: 62 FR 23669, May 1, 1997, unless otherwise noted.
Sec. 600.750 Definitions.
Consensus means unanimous concurrence among the members on a Fishery
Negotiation Panel established under this rule, unless such Panel:
(1) Agrees to define such term to mean a general but not unanimous
concurrence; or
(2) agrees upon another specified definition.
Fishery negotiation panel (FNP) means an advisory committee
established by one or more Councils or the Secretary in accordance with
these regulations to assist in the development of fishery conservation
and management measures.
Interest means, with respect to an issue or matter, multiple parties
that have a similar point of view or that are likely to be affected in a
similar manner.
Report means a document submitted by an FNP in accordance with the
Magnuson-Stevens Act.
[62 FR 23669, May 1, 1997, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.751 Determination of need for a fishery negotiation panel.
A Council or NMFS may establish an FNP to assist in the development
of specific fishery conservation and management measures. In determining
whether to establish an FNP, NMFS or the Council, as appropriate, shall
consider whether:
(a) There is a need for specific fishery conservation and management
measures.
(b) There are a limited number of identifiable interests that will
be significantly affected by the conservation and management measure.
(c) There is a reasonable likelihood that an FNP can be convened
with a balanced representation of persons who:
(1) Can adequately represent the interests identified under
paragraph (b) of this section.
(2) Are willing to negotiate in good faith to reach a consensus on a
report regarding the issues presented.
(d) There is a reasonable likelihood that an FNP will reach
a consensus on a report regarding the issues presented within 1 year
from date of establishment of the FNP.
(e) The use of an FNP will not unreasonably delay Council or NMFS
fishery management plan development or rulemaking procedures.
(f) The costs of establishment and operation of an FNP are
reasonable when compared to fishery management plan development or
rulemaking procedures that do not use FNP procedures.
(g) The Council or NMFS has adequate resources and is willing to
commit such resources, including technical assistance, to an FNP.
(h) The use of an FNP is in the public interest.
Sec. 600.752 Use of conveners and facilitators.
(a) Purposes of conveners. A Council or NMFS may use the services of
a trained convener to assist the Council or NMFS in: (1) Conducting
discussions to identify the issues of concern, and to ascertain whether
the establishment of an FNP regarding such matter is feasible and
appropriate.
(2) Identifying persons who will be significantly affected by the
issues presented in paragraph (a)(1) of this section.
(b) Duties of conveners. The convener shall report findings under
paragraph (a)(2) of this section and shall make recommendations to the
Council or NMFS. Upon request of the Council or NMFS, the convener shall
ascertain the names of persons who are willing and qualified to
represent interests that will be significantly affected by the potential
conservation and management measures relevant to the issues to be
negotiated. The report and any recommendations of the convener shall be
made available to the public upon request.
(c) Selection of facilitator. Notwithstanding section 10(e) of the
Federal Advisory Committee Act (FACA), a Council or NMFS may nominate a
person trained in facilitation either from
[[Page 94]]
the Federal Government or from outside the Federal Government to serve
as an impartial, neutral facilitator for the negotiations of the FNP,
subject to the approval of the FNP, by consensus. The facilitator may be
the same person as the convener used under paragraph (a) of this
section. If the FNP does not approve the nominee of the Council or NMFS
for facilitator, the FNP shall submit a substitute nomination. If an FNP
does not approve any nominee of the Council or NMFS for facilitator, the
FNP shall select, by consensus, a person to serve as facilitator. A
person designated to represent the Council or NMFS in substantive issues
may not serve as facilitator or otherwise chair the FNP.
(d) Roles and duties of facilitator. A facilitator shall:
(1) Chair the meetings of the FNP in an impartial manner.
(2) Impartially assist the members of the FNP in conducting
discussions and negotiations.
(3) Manage the keeping of minutes and records as required under
section 10(b) and (c) of FACA.
Sec. 600.753 Notice of intent to establish a fishery negotiation panel.
(a) Publication of notice. If, after considering the report of a
convener or conducting its own assessment, a Council or NMFS decides to
establish an FNP, NMFS shall publish in the Federal Register and, as
appropriate, in trade or other specialized publications, a document that
shall include:
(1) An announcement that the Council or NMFS intends to establish an
FNP to negotiate and develop a report concerning specific conservation
and management measures.
(2) A description of the subject and scope of the conservation and
management measure, and the issues to be considered.
(3) A list of the interests that are likely to be significantly
affected by the conservation and management measure.
(4) A list of the persons proposed to represent such interests and
the person or persons proposed to represent the Council or NMFS.
(5) A proposed agenda and schedule for completing the work of the
FNP.
(6) A description of administrative support for the FNP to be
provided by the Council or NMFS, including technical assistance.
(7) A solicitation for comments on the proposal to establish the
FNP, and the proposed membership of the FNP.
(8) An explanation of how a person may apply or nominate another
person for membership on the FNP, as provided under paragraph (b) of
this section.
(b) Nomination of members and public comment. Persons who may be
significantly affected by the development of conservation and management
measure and who believe that their interests will not be adequately
represented by any person specified in a document under paragraph (a)(4)
of this section may apply for, or nominate another person for,
membership on the FNP to represent such interests. Each application or
nomination shall include:
(1) The name of the applicant or nominee and a description of the
interests such person shall represent.
(2) Evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent.
(3) A written commitment that the applicant or nominee shall
actively participate in good faith in the development of the
conservation and management measure under consideration.
(4) The reasons that the persons specified in the document under
paragraph (a)(4) of this section do not adequately represent the
interests of the person submitting the application or nomination.
(c) Public comment. The Council or NMFS shall provide at least 30
calendar days for the submission of comments and applications under this
section.
Sec. 600.754 Decision to establish a fishery negotiation panel.
(a) Determination to establish an FNP. If, after considering
comments and applications submitted under Sec. 600.753, the Council or
NMFS determines that an FNP can adequately represent the interests that
will be significantly affected and that it is feasible and appropriate
in the particular case, the Council or NMFS may establish an FNP.
[[Page 95]]
(b) Determination not to establish FNP. If, after considering such
comments and applications, the Council or NMFS decides not to establish
an FNP, the Council or NMFS shall promptly publish notification of such
decision and the reasons therefor in the Federal Register and, as
appropriate, in trade or other specialized publications, a copy of which
shall be sent to any person who applied for, or nominated another person
for membership on the FNP to represent such interests with respect to
the issues of concern.
Sec. 600.755 Establishment of a fishery negotiation panel.
(a) General authority. (1) A Council may establish an FNP to assist
in the development of specific conservation and management measures for
a fishery under its authority.
(2) NMFS may establish an FNP to assist in the development of
specific conservation and management measures required for:
(i) A fishery for which the Secretary has authority under section
304(e)(5) of the Magnuson-Stevens Act, regarding rebuilding of
overfished fisheries;
(ii) A fishery for which the Secretary has authority under 16 U.S.C.
section 304(g), regarding highly migratory species; or
(iii) Any fishery with the approval of the appropriate Council.
(b) Federal Advisory Committee Act (FACA) In establishing and
administering such an FNP, the Council or NMFS shall comply with the
FACA with respect to such FNP.
(c) Balance. Each potentially affected organization or individual
does not necessarily have to have its own representative, but each
interest must be adequately represented. The intent is to have a group
that as a whole reflects a proper balance and mix of interests.
Representatives must agree, in writing, to negotiate in good faith.
(d) Membership. The Council or NMFS shall limit membership on an FNP
to no more than 25 members, unless the Council or NMFS determines that a
greater number of members is necessary for the functioning of the FNP or
to achieve balanced membership. Each FNP shall include at least one
person representing the Council in addition to at least one person
representing NMFS.
Sec. 600.756 Conduct and operation of a fishery negotiation panel.
(a) Roles and duties of an FNP. Each FNP shall consider the issue
proposed by the Council or NMFS for consideration and shall attempt to
reach a consensus concerning a report to assist in the development of a
conservation and management measure with respect to such matter and any
other matter the FNP determines is relevant to the development of a
conservation and management measure. An FNP may adopt procedures for the
operation of the FNP.
(b) Roles and duties of representative of the council or NMFS. The
person or persons representing the Council or NMFS on an FNP shall
participate in the deliberations and activities of the FNP with the same
rights and responsibilities as other members of the FNP, and shall be
authorized to fully represent the Council or NMFS in the discussions and
negotiations of the FNP.
Sec. 600.757 Operational protocols.
(a) Services of conveners and facilitators. A Council or NMFS may
employ or enter into contracts for the services of an individual or
organization to serve as a convener or facilitator for an FNP
established under Sec. 600.755, or may use the services of a government
employee to act as a convener or a facilitator for such an FNP.
(b) Councils. For an FNP proposed and established by one or more
Councils approved expenses shall be paid out of the Council's operating
budget.
(c) Expenses of FNP members. Members of an FNP shall be responsible
for their own expenses of participation in such an FNP, except that NMFS
or the Council may, in accordance with section 7(d) of FACA, pay for a
member's reasonable travel and per diem expenses, and a reasonable rate
of compensation, if:
(1) Such member certifies a lack of adequate financial resources to
participate in the FNP.
(2) The Council or NMFS determines that such member's participation
in
[[Page 96]]
the FNP is necessary to assure an adequate representation of the
member's interest.
(d) Administrative support. The Council or NMFS shall provide
appropriate administrative support to an FNP including technical
assistance.
Sec. 600.758 Preparation of report.
(a) At the conclusion of the negotiations, an FNP may submit a
report. Such report shall specify:
(1) All the areas where consensus was reached by the FNP, including,
if appropriate, proposed conservation and management measures.
(2) Any other information submitted by members of the FNP.
(b) Upon receipt of the report, the Council or NMFS shall publish
such report in the Federal Register for public comment.
Sec. 600.759 Use of report.
A Council or NMFS may, at its discretion, use all or a part of a
report prepared in accordance with Sec. 600.758 in the development of
conservation and management measures. Neither a Council nor NMFS,
whichever is appropriate, is required to use such report.
Sec. 600.760 Fishery Negotiation Panel lifetime.
(a) An FNP shall terminate upon either:
(1) Submission of a report prepared in accordance with Sec. 600.758;
or
(2) Submission of a written statement from the FNP to the Council or
NMFS that no consensus can be reached.
(b) In no event shall an FNP exist for longer than 1 year from the
date of establishment unless granted an extension. Upon written request
by the FNP to the Council or NMFS, and written authorization from the
Council or NMFS (whichever is appropriate), the Secretary may authorize
an extension for a period not to exceed 6 months. No more than one
extension may be granted per FNP.
Subpart J--Essential Fish Habitat (EFH)
Source: 62 FR 66551, Dec. 19, 1997, unless otherwise noted.
Sec. 600.805 Purpose and scope.
(a) Purpose. This subpart provides guidelines for Councils and the
Secretary to use in adding the required provision on EFH to an FMP,
i.e., description and identification of essential fish habitat (EFH),
adverse impacts on EFH (including minimizing, to the extent practicable,
adverse impacts from fishing), and actions to conserve and enhance EFH.
(b) Scope--(1) Species covered. An EFH provision in an FMP must
include all fish species in the FMU. A Council may describe, identify,
and protect the habitat of species not in an FMU; however, such habitat
may not be considered EFH for the purposes of sections 303(a)(7) and
305(b) of the Magnuson-Stevens Act.
(2) Geographic. EFH may be described and identified in waters of the
United States, as defined in 33 CFR 328.3 and the exclusive economic
zone, as defined in Sec. 600.10. Councils may describe, identify, and
protect habitats of managed species beyond the exclusive economic zone;
however, such habitat may not be considered EFH for the purposes of
section 303(a)(7) and 305(b) of the Magnuson-Stevens Act. Activities
that may adversely impact such habitat can be addressed through any
process conducted in accordance with international agreements between
the United States and the foreign nation(s) undertaking or authorizing
the action.
Sec. 600.810 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the
following meanings:
Adverse effect means any impact which reduces quality and/or
quantity of EFH. Adverse effects may include direct (e.g., contamination
or physical disruption), indirect (e.g., loss of prey, or reduction in
species' fecundity), site-specific or habitat-wide impacts, including
individual, cumulative, or synergistic consequences of actions.
Council includes the Secretary, as applicable, when preparing
Secretarial FMPs or amendments under sections 304(c) and (g) of the
Magnuson-Stevens Act.
Ecosystem means communities of organisms interacting with one
another
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and with the chemical and physical factors making up their environment.
Habitat areas of particular concern means those areas of EFH
identified pursuant to Sec. 600.815(a)(9).
Healthy ecosystem means an ecosystem where ecological productive
capacity is maintained, diversity of the flora and fauna is preserved,
and the ecosystem retains the ability to regulate itself. Such an
ecosystem should be similar to comparable, undisturbed, ecosystems with
regard to standing crop, productivity, nutrient dynamics, trophic
structure, species richness, stability, resilience, contamination
levels, and the frequency of diseased organisms.
Overfished means any stock or stock complex, the status of which is
reported as overfished by the Secretary pursuant to Sec. 304(e)(1) of
the Magnuson-Stevens Act.
(b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'',
``may not'', ``will'', ``could'', and ``can'', are used in the same
manner as in Sec. 600.305(c).
Sec. 600.815 Contents of Fishery Management Plans.
(a) Mandatory contents--(1) Habitat requirements by life history
stage. FMPs must describe EFH in text and with tables that provide
information on the biological requirements for each life history stage
of the species. These tables should summarize all available information
on environmental and habitat variables that control or limit
distribution, abundance, reproduction, growth, survival, and
productivity of the managed species. Information in the tables should be
supported with citations.
(2) Description and identification of EFH--(i) Information
requirements. (A) An initial inventory of available environmental and
fisheries data sources relevant to the managed species should be used in
describing and identifying EFH. This inventory should also help to
identify major species-specific habitat data gaps. Deficits in data
availability (i.e., accessibility and application of the data) and in
data quality (including considerations of scale and resolution;
relevance; and potential biases in collection and interpretation) should
be identified.
(B) To identify EFH, basic information is needed on current and
historic stock size, the geographic range of the managed species, the
habitat requirements by life history stage, and the distribution and
characteristics of those habitats. Information is also required on the
temporal and spatial distribution of each major life history stage
(defined by developmental and functional shifts). Since EFH should be
identified for each major life history stage, data should be collected
on, but not limited to, the distribution, density, growth, mortality,
and production of each stage within all habitats occupied, or formerly
occupied, by the species. These data should be obtained from the best
available information, including peer-reviewed literature, data reports
and ``gray'' literature, data files of government resource agencies, and
any other sources of quality information.
(C) The following approach should be used to gather and organize the
data necessary for identifying EFH. Information from all levels should
be used to identify EFH. The goal of this procedure is to include as
many levels of analysis as possible within the constraints of the
available data. Councils should strive to obtain data sufficient to
describe habitat at the highest level of detail (i.e., Level 4).
(1) Level 1: Presence/absence distribution data are available for
some or all portions of the geographic range of the species. At this
level, only presence/absence data are available to describe the
distribution of a species (or life history stage) in relation to
potential habitats. Care should be taken to ensure that all potential
habitats have been sampled adequately. In the event that distribution
data are available for only portions of the geographic area occupied by
a particular life history stage of a species, EFH can be inferred on the
basis of distributions among habitats where the species has been found
and on information about its habitat requirements and behavior.
(2) Level 2: Habitat-related densities of the species are available.
At this level, quantitative data (i.e., density or relative abundance)
are available for the habitats occupied by a species or life history
stage. Because the efficiency of
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sampling methods is often affected by habitat characteristics, strict
quality assurance criteria should be used to ensure that density
estimates are comparable among methods and habitats. Density data should
reflect habitat utilization, and the degree that a habitat is utilized
is assumed to be indicative of habitat value. When assessing habitat
value on the basis of fish densities in this manner, temporal changes in
habitat availability and utilization should be considered.
(3) Level 3: Growth, reproduction, or survival rates within habitats
are available. At this level, data are available on habitat-related
growth, reproduction, and/or survival by life history stage. The
habitats contributing the most to productivity should be those that
support the highest growth, reproduction, and survival of the species
(or life history stage).
(4) Level 4: Production rates by habitat are available. At this
level, data are available that directly relate the production rates of a
species or life history stage to habitat type, quantity, quality, and
location. Essential habitats are those necessary to maintain fish
production consistent with a sustainable fishery and the managed
species' contribution to a healthy ecosystem.
(ii) EFH determination. (A) The information obtained through the
analysis in paragraph (a)(2)(i) of this section will allow Councils to
assess the relative value of habitats. Councils should interpret this
information in a risk-averse fashion, to ensure adequate areas are
protected as EFH of managed species. Level 1 information, if available,
should be used to identify the geographic range of the species. Level 2
through 4 information, if available, should be used to identify the
habitats valued most highly within the geographic range of the species.
If only Level 1 information is available, presence/absence data should
be evaluated (e.g., using a frequency of occurrence or other appropriate
analysis) to identify those habitat areas most commonly used by the
species. Areas so identified should be considered essential for the
species. However, habitats of intermediate and low value may also be
essential, depending on the health of the fish population and the
ecosystem. Councils must demonstrate that the best scientific
information available was used in the identification of EFH, consistent
with national standard 2, but other data may also be used for the
identification.
(B) If a species is overfished, and habitat loss or degradation may
be contributing to the species being identified as overfished, all
habitats currently used by the species should be considered essential in
addition to certain historic habitats that are necessary to support
rebuilding the fishery and for which restoration is technologically and
economically feasible. Once the fishery is no longer considered
overfished, the EFH identification should be reviewed, and the FMP
amended, if appropriate.
(C) EFH will always be greater than or equal to aquatic areas that
have been identified as ``critical habitat'' for any managed species
listed as threatened or endangered under the Endangered Species Act.
(D) Where a stock of a species is considered to be healthy, then EFH
for the species should be a subset of all existing habitat for the
species.
(E) Ecological relationships among species and between the species
and their habitat require, where possible, that an ecosystem approach be
used in determining the EFH of a managed species or species assemblage.
The extent of the EFH should be based on the judgment of the Secretary
and the appropriate Council(s) regarding the quantity and quality of
habitat that is necessary to maintain a sustainable fishery and the
managed species' contribution to a healthy ecosystem.
(F) If degraded or inaccessible aquatic habitat has contributed to
the reduced yields of a species or assemblage, and in the judgment of
the Secretary and the appropriate Council(s), the degraded conditions
can be reversed through such actions as improved fish passage techniques
(for fish blockages), improved water quality or quantity measures
(removal of contaminants or increasing flows), and similar measures that
are technologically and economically feasible, then EFH should include
those habitats that would be essential
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to the species to obtain increased yields.
(iii) EFH Mapping Requirements. The general distribution and
geographic limits of EFH for each life history stage should be presented
in FMPs in the form of maps. Ultimately, these data should be
incorporated into a geographic information system (GIS) to facilitate
analysis and presentation. These maps may be presented as fixed in time
and space, but they should encompass all appropriate temporal and
spatial variability in the distribution of EFH. If the geographic
boundaries of EFH change seasonally, annually, or decadally, these
changing distributions need to be represented in the maps. Different
types of EFH should be identified on maps along with areas used by
different life history stages of the species. The type of information
used to identify EFH should be included in map legends, and more
detailed and informative maps should be produced as more complete
information about population responses (e.g., growth, survival, or
reproductive rates) to habitat characteristics becomes available. Where
the present distribution or stock size of a species or life history
stage is different from the historical distribution or stock size, then
maps of historical habitat boundaries should be included in the FMP, if
known. The EFH maps are a means to visually present the EFH described in
the FMP. If the maps identifying EFH and the information in the
description of EFH differ, the description is ultimately determinative
of the limits of EFH.
(3) Fishing activities that may adversely affect EFH. (i) Adverse
effects from fishing may include physical, chemical, or biological
alterations of the substrate, and loss of, or injury to, benthic
organisms, prey species and their habitat, and other components of the
ecosystem.
(ii) FMPs must include management measures that minimize adverse
effects on EFH from fishing, to the extent practicable, and identify
conservation and enhancement measures. The FMP must contain an
assessment of the potential adverse effects of all fishing equipment
types used in waters described as EFH. This assessment should consider
the relative impacts of all fishing equipment types used in EFH on
different types of habitat found within EFH. Special consideration
should be given to equipment types that will affect habitat areas of
particular concern. In completing this assessment, Councils should use
the best scientific information available, as well as other appropriate
information sources, as available. Included in this assessment should be
consideration of the establishment of research closure areas and other
measures to evaluate the impact of any fishing activity that physically
alters EFH.
(iii) Councils must act to prevent, mitigate, or minimize any
adverse effects from fishing, to the extent practicable, if there is
evidence that a fishing practice is having an identifiable adverse
effect on EFH, based on the assessment conducted pursuant to paragraph
(a)(3)(ii) of this section and/or the cumulative impacts analysis
conducted pursuant to paragraph (a)(6)(ii) of this section.
(iv) In determining whether it is practicable to minimize an adverse
effect from fishing, Councils should consider whether, and to what
extent, the fishing activity is adversely impacting EFH, including the
fishery; the nature and extent of the adverse effect on EFH; and whether
the management measures are practicable, taking into consideration the
long and short-term costs as well as benefits to the fishery and its
EFH, along with other appropriate factors, consistent with national
standard 7.
(4) Options for managing adverse effects from fishing. Fishery
management options may include, but are not limited to:
(i) Fishing equipment restrictions. These options may include, but
are not limited to: Seasonal and area restrictions on the use of
specified equipment; equipment modifications to allow escapement of
particular species or particular life stages (e.g., juveniles);
prohibitions on the use of explosives and chemicals; prohibitions on
anchoring or setting equipment in sensitive areas; and prohibitions on
fishing activities that cause significant physical damage in EFH.
(ii) Time/area closures. These actions may include, but are not
limited to:
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Closing areas to all fishing or specific equipment types during
spawning, migration, foraging, and nursery activities; and designating
zones for use as marine protected areas to limit adverse effects of
fishing practices on certain vulnerable or rare areas/species/life
history stages, such as those areas designated as habitat areas of
particular concern.
(iii) Harvest limits. These actions may include, but are not limited
to, limits on the take of species that provide structural habitat for
other species assemblages or communities, and limits on the take of prey
species.
(5) Identification of Non-fishing related activities that may
adversely affect EFH. FMPs must identify activities that have the
potential to adversely affect EFH quantity or quality, or both. Broad
categories of activities which can adversely affect EFH include, but are
not limited to: Dredging, fill, excavation, mining, impoundment,
discharge, water diversions, thermal additions, actions that contribute
to non-point source pollution and sedimentation, introduction of
potentially hazardous materials, introduction of exotic species, and the
conversion of aquatic habitat that may eliminate, diminish, or disrupt
the functions of EFH. An FMP should describe the EFH most likely to be
adversely affected by these or other activities. For each activity, the
FMP should describe known and potential adverse impacts to EFH. The
descriptions should explain the mechanisms or processes that may cause
the adverse effects and how these may affect habitat function. A GIS or
other mapping system should be used to support analyses of data. Maps
geographically depicting impacts identified in this paragraph should be
included in an FMP.
(6) Cumulative impacts analysis--(i) Analysis. To the extent
feasible and practicable, FMPs should analyze how fishing and non-
fishing activities influence habitat function on an ecosystem or
watershed scale. This analysis should describe the ecosystem or
watershed, the dependence of the managed species on the ecosystem or
watershed, especially EFH; and how fishing and non-fishing activities,
individually or in combination, impact EFH and the managed species, and
how the loss of EFH may affect the ecosystem. An assessment of the
cumulative and synergistic effects of multiple threats, including the
effects of natural stresses (such as storm damage or climate-based
environmental shifts), and an assessment of the ecological risks
resulting from the impact of those threats on the managed species'
habitat should also be included. For the purposes of this analysis,
cumulative impacts are impacts on the environment that result from the
incremental impact of an action when added to other past, present, and
reasonably foreseeable future actions, regardless of who undertakes such
actions. Cumulative impacts can result from individually minor, but
collectively significant actions taking place over a period of time.
(ii) Cumulative impacts from fishing. In addressing the impacts of
fishing on EFH, Councils should also consider the cumulative impacts of
multiple fishing practices and non-fishing activities on EFH,
especially, on habitat areas of particular concern. Habitats that are
particularly vulnerable to specific fishing equipment types should be
identified for possible designation as habitat areas of particular
concern.
(iii) Mapping cumulative impacts. A GIS or other mapping system
should be used to support analyses of data. Maps depicting data
documenting cumulative impacts identified in this paragraph should be
included in an FMP.
(iv) Research needs. If completion of these analyses is not feasible
or practicable for every ecosystem or watershed within an area
identified as EFH, Councils should, in consultation with NMFS, identify
in the FMP priority research areas to allow these analyses to be
completed. Councils should include a schedule for completing such
research. Such schedule of priority research areas should be combined
with the research needs identified pursuant to paragraph (a)(10) of this
section.
(7) Conservation and enhancement--(i) Contents of FMPs. FMPs must
describe options to avoid, minimize, or compensate for the adverse
effects identified pursuant to paragraphs (a) (5) and
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(6) of this section and promote the conservation and enhancement of EFH,
especially in habitat areas of particular concern.
(ii) General conservation and enhancement recommendations.
Generally, non-water dependent actions should not be located in EFH if
such actions may have adverse impacts on EFH. Activities that may result
in significant adverse affects on EFH, should be avoided where less
environmentally harmful alternatives are available. If there are no
alternatives, the impacts of these actions should be minimized.
Environmentally sound engineering and management practices should be
employed for all actions which may adversely affect EFH. Disposal or
spillage of any material (dredge material, sludge, industrial waste, or
other potentially harmful materials) which would destroy or degrade EFH
should be avoided. If avoidance or minimization is not possible, or will
not adequately protect EFH, compensatory mitigation to conserve and
enhance EFH should be recommended. FMPs may recommend proactive measures
to conserve or enhance EFH. When developing proactive measures, Councils
may develop a priority ranking of the recommendations to assist Federal
and state agencies undertaking such measures.
(iii) Conservation and enhancement options. FMPs should provide a
variety of options to conserve or enhance EFH, which may include, but
are not limited to:
(A) Enhancement of rivers, streams, and coastal areas. EFH located
in, or influenced by, rivers, streams, and coastal areas may be enhanced
by reestablishing endemic trees or other appropriate native vegetation
on adjacent riparian areas; restoring natural bottom characteristics;
removing unsuitable material from areas affected by human activities; or
adding gravel or substrate to stream areas to promote spawning. Adverse
effects stemming from upland areas that influence EFH may be avoided or
minimized by employing measures such as, but not limited to, erosion
control, road stabilization, upgrading culverts, removal or modification
of operating procedures of dikes or levees to allow for fish passage,
structural and operation measures at dams for fish passage and habitat
protection, or improvement of watershed management. Initiation of
Federal, state, or local government planning processes to restore
watersheds associated with such rivers, streams, or coastal areas may
also be recommended.
(B) Water quality and quantity. This category of options may include
use of best land management practices for ensuring compliance with water
quality standards at state and Federal levels, improved treatment of
sewage, proper disposal of waste materials, and providing appropriate
in-stream flow.
(C) Watershed analysis and planning. This may include encouraging
local and state efforts to minimize destruction/degradation of wetlands,
restore and maintain the ecological health of watersheds, and encourage
restoration of native species. Any analysis of options should consider
natural variability in weather or climatic conditions.
(D) Habitat creation. Under appropriate conditions, habitat creation
(converting non-EFH to EFH) may be considered as a means of replacing
lost or degraded EFH. However, habitat conversion at the expense of
other naturally functioning systems must be justified within an
ecosystem context.
(8) Prey species. Loss of prey is an adverse effect on EFH and a
managed species, because one component of EFH is that it be necessary
for feeding. Therefore, actions that reduce the availability of a major
prey species, either through direct harm or capture, or through adverse
impacts to the prey species' habitat that are known to cause a reduction
in the population of the prey species may be considered adverse effects
on a managed species and its EFH. FMPs should identify the major prey
species for the species in the FMU and generally describe the location
of prey species' habitat. Actions that cause a reduction of the prey
species population, including where there exists evidence that adverse
effects to habitat of prey species is causing a decline in the
availability of the prey species, should also be described and
identified. Adverse effects on prey species and their habitats may
result from fishing and non-fishing activities.
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(9) Identification of habitat areas of particular concern. FMPs
should identify habitat areas of particular concern within EFH. In
determining whether a type, or area of EFH is a habitat area of
particular concern, one or more of the following criteria must be met:
(i) The importance of the ecological function provided by the
habitat.
(ii) The extent to which the habitat is sensitive to human-induced
environmental degradation.
(iii) Whether, and to what extent, development activities are, or
will be, stressing the habitat type.
(iv) The rarity of the habitat type.
(10) Research and information needs. Each FMP should contain
recommendations, preferably in priority order, for research efforts that
the Councils and NMFS view as necessary for carrying out their EFH
management mandate. The need for additional research is to make
available sufficient information to support a higher level of
description and identification of EFH under paragraph (a)(2)(i) of this
section. Additional research may also be necessary to identify and
evaluate actual and potential adverse effects on EFH, including, but not
limited to, direct physical alteration; impaired habitat quality/
functions; cumulative impacts from fishing; or indirect adverse effects
such as sea level rise, global warming and climate shifts; and non-
equipment related fishery impacts. The Magnuson-Stevens Act specifically
identifies the effects of fishing as a concern. The need for additional
research on the effects of fishing equipment on EFH and a schedule for
obtaining that information should be included in this section of the
FMP. If an adverse effect on EFH is identified and determined to be an
impediment to maintaining a sustainable fishery and the managed species'
contribution to a healthy ecosystem, then the research needed to
quantify and mitigate that effect should be identified in this section.
(11) Review and revision of EFH components of FMPs. Councils and
NMFS should periodically review the EFH components of FMPs, including an
update of the equipment assessment originally conducted pursuant to
paragraph (a)(3)(ii) of this section. Each EFH FMP amendment should
include a provision requiring review and update of EFH information and
preparation of a revised FMP amendment if new information becomes
available. The schedule for this review should be based on an assessment
of both the existing data and expectations when new data will become
available. This information should be reviewed as part of the annual
Stock Assessment and Fishery Evaluation (SAFE) report prepared pursuant
to Sec. 600.315(e). A complete review of information should be conducted
as recommended by the Secretary, but at least once every 5 years.
(b) Optional components. An FMP may include a description and
identification of the habitat of species under the authority of the
Council, even if not contained in the FMU. However, such habitat may not
be EFH. This subpart does not change a Council's ability to implement
management measures for a managed species for the protection of another
species.
(c) Development of EFH recommendations. After reviewing the best
available scientific information, as well as other appropriate
information, and in consultation with the Councils, participants in the
fishery, interstate commissions, Federal agencies, state agencies, and
other interested parties, NMFS will develop written recommendations for
the identification of EFH for each FMP. In recognition of the different
approaches to FMP development taken by each Council, the NMFS EFH
recommendations may constitute a review of a draft EFH document
developed by a Council, or may include suggestions for a draft EFH FMP
amendment and may precede the Council's development of such documents,
as appropriate. In both cases, prior to submitting a written EFH
identification recommendation to a Council for an FMP, the draft
recommendation will be made available for public review and at least one
public meeting will be held. NMFS will work with the affected Council(s)
to conduct this review in association with scheduled public Council
meetings whenever possible. The review may be conducted at a meeting of
the Council committee responsible for habitat issues or as a part of a
full Council
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meeting. After receiving public comment, NMFS will revise its draft
recommendations, as appropriate, and forward a final written
recommendation and comments to the Council(s).
(d) Relationship to other fishery management authorities. Councils
are encouraged to coordinate with state and interstate fishery
management agencies where Federal fisheries affect state and interstate
managed fisheries or where state or interstate fishery regulations
affect the management of Federal fisheries. Where a state or interstate
fishing activity adversely impacts EFH, NMFS will consider that action
to be an adverse effect on EFH pursuant to paragraph (a)(5) of this
section and will provide EFH conservation recommendations to the
appropriate state or interstate fishery management agency on that
activity.
Subpart K--EFH Coordination, Consultation, and Recommendations
Source: 62 FR 66555, Dec. 19, 1997, unless otherwise noted.
Sec. 600.905 Purpose and scope and NMFS/Council cooperation.
(a) Purpose. These procedures address the coordination,
consultation, and recommendation requirements of sections 305(b)(1)(D)
and 305(b)(2-4) of the Magnuson-Stevens Act. The purpose of these
procedures is to promote the protection of EFH in the review of Federal
and state actions that may adversely affect EFH.
(b) Scope. Section 305(b)(1)(D) of the Magnuson-Stevens Act requires
the Secretary to coordinate with, and provide information to, other
Federal agencies regarding the conservation and enhancement of EFH.
Section 305(b)(2) requires all Federal agencies to consult with the
Secretary on all actions, or proposed actions, authorized, funded, or
undertaken by the agency, that may adversely affect EFH. Sections 305(b)
(3) and (4) direct the Secretary and the Councils to provide comments
and EFH conservation recommendations to Federal or state agencies on
actions that affect EFH. Such recommendations may include measures to
avoid, minimize, mitigate, or otherwise offset adverse effects on EFH
resulting from actions or proposed actions authorized, funded, or
undertaken by that agency. Section 305(b)(4)(B) requires Federal
agencies to respond in writing to such comments. The following
procedures for coordination, consultation, and recommendations allow all
parties involved to understand and implement the requirements of the
Magnuson-Stevens Act.
(c) Cooperation between Councils and NMFS. The Councils and NMFS
should cooperate as closely as possible to identify actions that may
adversely affect EFH, to develop comments and EFH conservation
recommendations to Federal and state agencies, and to provide EFH
information to Federal or state agencies. The Secretary will seek to
develop agreements with each Council to facilitate sharing information
on actions that may adversely affect EFH and in coordinating Council and
NMFS comments and recommendations on those actions. However, NMFS and
the Councils also have the authority to act independently.
Sec. 600.910 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the
following meanings:
Adverse effect means any impact which reduces quality and/or
quantity of EFH. Adverse effects may include direct (e.g., contamination
or physical disruption), indirect (e.g., loss of prey, reduction in
species' fecundity), site-specific or habitatwide impacts, including
individual, cumulative, or synergistic consequences of actions.
Council includes the Secretary, as applicable, when preparing FMPs
or amendments under section 304 (c) and (g) of the Magnuson-Stevens Act;
and when commenting and making recommendations under the authority of
section 305(b)(3) of the Magnuson-Stevens Act to any Federal or state
agency on actions that may affect the habitat of fishery resources
managed under such FMPs.
Federal action means any action authorized, funded, or undertaken,
or proposed to be authorized, funded, or undertaken by a Federal agency.
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Habitat areas of particular concern means those areas of EFH
identified pursuant to Sec. 600.815(a)(9).
State action means any action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken by a state agency.
(b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'',
``may not'', ``will'', ``could'', and ``can'', are used in the same
manner as in Sec. 600.305(c).
Sec. 600.915 Coordination for the conservation and enhancement of EFH.
To further the conservation and enhancement of EFH in accordance
with section 305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile
and make available to other Federal and state agencies, information on
the locations of EFH, including maps and/or narrative descriptions. NMFS
will also provide information on ways to improve ongoing Federal
operations to promote the conservation and enhancement of EFH. Federal
and state agencies empowered to authorize, fund, or undertake actions
that may adversely affect EFH are encouraged to contact NMFS and the
Councils to become familiar with areas designated as EFH, and potential
threats to EFH, as well as opportunities to promote the conservation and
enhancement of such habitat.
Sec. 600.920 Federal agency consultation with the Secretary.
(a) Consultation generally--(1) Actions requiring consultation.
Pursuant to section 305(b)(2) of the Magnuson-Stevens Act, Federal
agencies must consult with NMFS regarding any of their actions
authorized, funded, or undertaken, or proposed to be authorized, funded,
or undertaken that may adversely affect EFH. EFH consultation is not
required for completed actions, e.g., issued permits. Consultation is
required for renewals, reviews, or substantial revisions of actions.
Consultation on Federal programs delegated to non-Federal entities is
required at the time of delegation, review, and renewal of the
delegation. EFH consultation is required for any Federal funding of
actions that may adversely affect EFH. NMFS and Federal agencies
responsible for funding actions that may adversely affect EFH should
consult on a programmatic level, if appropriate, with respect to these
actions.
(2) Appropriate level of consultation. (i) NMFS and other Federal
agencies may conduct consultation at either a programmatic or project-
specific level. Federal actions may be evaluated at a programmatic level
if sufficient information is available to develop EFH conservation
recommendations and address all reasonably foreseeable adverse effects
to EFH. Project-specific consultations are more appropriate when
critical decisions are made at the project implementation stage, or when
sufficiently detailed information for the development of EFH
conservation recommendations does not exist at the programmatic level.
(ii) If, after a Federal agency requests programmatic consultation,
NMFS determines that all concerns about adverse effects on EFH can be
addressed at a programmatic level, NMFS will develop EFH conservation
recommendations that cover all projects implemented under that program,
and no further EFH consultation will be required. Alternatively, NMFS
may determine that project-specific consultation is needed for part or
all of the program's activities, in which case NMFS may develop some EFH
conservation recommendations at a programmatic level, but will also
recommend that project-specific consultation will be needed to complete
the EFH consultation requirements. NMFS may also determine that
programmatic consultation is not appropriate, in which case all EFH
conservation recommendations will be deferred to project-specific
consultations.
(b) Designation of lead agency. If more than one Federal agency is
responsible for a Federal action, the consultation requirements of
sections 305(b)(2-4) of the Magnuson-Stevens Act may be fulfilled
through a lead agency. The lead agency must notify NMFS in writing that
it is representing one or more additional agencies.
(c) Designation of non-Federal representative. A Federal agency may
designate a non-Federal representative to conduct an abbreviated
consultation or prepare an EFH Assessment by giving written notice of
such designation to
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NMFS. If a non-Federal representative is used, the Federal action agency
remains ultimately responsible for compliance with sections 305(b)(2)
and 305(b)(4) of the Magnuson-Stevens Act.
(d) Best available information. The Federal action agency and NMFS
must use the best scientific information available regarding the effects
of the proposed action on EFH. Other appropriate sources of information
may also be considered.
(e) Use of existing consultation/environmental review procedures--
(1) Criteria. Consultation and commenting under sections 305(b)(2) and
305(b)(4) of the Magnuson-Stevens Act should be consolidated, where
appropriate, with interagency consultation, coordination, and
environmental review procedures required by other statutes, such as the
National Environmental Policy Act (NEPA), Fish and Wildlife Coordination
Act, Clean Water Act, Endangered Species Act (ESA), and Federal Power
Act. The consultation requirements of section 305(b)(2) of the Magnuson-
Stevens Act can be satisfied using existing or modified procedures
required by other statutes if such processes meet the following
criteria:
(i) The existing process must provide NMFS with timely notification
of actions that may adversely affect EFH. The Federal action agency
should notify NMFS according to the same timeframes for notification (or
for public comment) as in the existing process. However, NMFS should
have at least 60 days notice prior to a final decision on an action, or
at least 90 days if the action would result in substantial adverse
impacts. NMFS and the action agency may agree to use shorter timeframes
if they allow sufficient time for NMFS to develop EFH conservation
recommendations.
(ii) Notification must include an assessment of the impacts of the
proposed action on EFH that meets the requirements for EFH Assessments
contained in paragraph (g) of this section. If the EFH Assessment is
contained in another document, that section of the document must be
clearly identified as the EFH Assessment.
(iii) NMFS must have made a finding pursuant to paragraph (e)(3) of
this section that the existing process satisfies the requirements of
section 305(b)(2) of the Magnuson-Stevens Act.
(2) EFH conservation recommendation requirements. If an existing
consultation process is used to fulfill the EFH consultation
requirements, then the comment deadline for that process should apply to
the submittal of NMFS conservation recommendations under section
305(b)(4)(A) of the Magnuson-Stevens Act, unless a different deadline is
agreed to by NMFS and the Federal agency. The Federal agency must
respond to these recommendations within 30 days pursuant to section
305(b)(4)(B) of the Magnuson-Stevens Act. NMFS may request the further
review of any Federal agency decision that is inconsistent with a NMFS
EFH recommendation, in accordance with paragraph (j)(2) of this section.
If NMFS EFH conservation recommendations are combined with other NMFS or
NOAA comments on a Federal action, such as NOAA comments on a draft
Environmental Impact Statement, the EFH conservation recommendations
shall be clearly identified as such (e.g., a section in the comment
letter entitled ``EFH conservation recommendations'') and a response
pursuant to section 305(b)(4)(B) of the Magnuson-Stevens Act is required
for only the identified portion of the comments.
(3) NMFS finding. A Federal agency with an existing consultation
process should contact NMFS at the appropriate level (regional offices
for regional processes, headquarters office for national processes) to
discuss how the existing process, with or without modifications, can be
used to satisfy the EFH consultation requirements. If, at the conclusion
of these discussions, NMFS determines that the existing process meets
the criteria of paragraph (e)(1) of this section, NMFS will make a
finding that the existing or modified process can satisfy the EFH
consultation requirements of the Magnuson-Stevens Act. If NMFS does not
make such a finding, or if there are no existing consultation processes
relevant to the Federal agency's actions, the action agency and NMFS
should follow the consultation process in the following sections.
[[Page 106]]
(f) General Concurrence--(1) Purpose. The General Concurrence
process identifies specific types of Federal actions that may adversely
affect EFH, but for which no further consultation is generally required
because NMFS has determined, through an analysis of that type of action,
that it will likely result in no more than minimal adverse effects
individually and cumulatively. General Concurrences may be national or
regional in scope.
(2) Criteria. (i) For Federal actions to qualify for General
Concurrence, NMFS must determine, after consultation with the
appropriate Council(s), that the actions meet all of the following
criteria:
(A) The actions must be similar in nature and similar in their
impact on EFH.
(B) The actions must not cause greater than minimal adverse effects
on EFH when implemented individually.
(C) The actions must not cause greater than minimal cumulative
adverse effects on EFH.
(ii) Actions qualifying for General Concurrence must be tracked to
ensure that their cumulative effects are no more than minimal. In most
cases, tracking will be the responsibility of the Federal action agency,
but NMFS also may agree to track actions for which General Concurrence
has been authorized. Tracking should include numbers of actions, amount
of habitat adversely affected, type of habitat adversely affected, and
the baseline against which the action will be tracked. The agency
responsible for tracking such actions should make the information
available to NMFS, the Councils, and to the public on an annual basis.
(iii) Categories of Federal actions may also qualify for General
Concurrence if they are modified by appropriate conditions that ensure
the actions will meet the criteria in paragraph (f)(2)(i) of this
section. For example, NMFS may provide General Concurrence for
additional actions contingent upon project size limitations, seasonal
restrictions, or other conditions.
(iv) If a General Concurrence is developed for actions affecting
habitat areas of particular concern, the General Concurrence should be
subject to a higher level of scrutiny than a General Concurrence not
involving a habitat area of particular concern.
(3) General Concurrence development. A Federal agency may request a
General Concurrence for a category of its actions by providing NMFS with
a written description of the nature and approximate number of the
proposed actions, an analysis of the effects of the actions on EFH and
associated species and their life history stages, including cumulative
effects, and the Federal agency's conclusions regarding the magnitude of
such effects. If NMFS agrees that the actions fit the criteria in
paragraph (f)(2) of this section, NMFS, after consultation with the
appropriate Council(s), will provide the Federal agency with a written
statement of General Concurrence that further consultation is not
required, and that preparation of EFH Assessments for individual actions
subject to the General Concurrence is not necessary. If NMFS does not
agree that the actions fit the criteria in paragraph (f)(2) of this
section, NMFS will notify the Federal agency that a General Concurrence
will not be issued and that abbreviated or expanded consultation will be
required. If NMFS identifies specific types of Federal actions that may
meet the requirements for a General Concurrence, NMFS may initiate and
complete a General Concurrence.
(4) Notification and further consultation. NMFS may request
notification for actions covered under a General Concurrence if NMFS
concludes there are circumstances under which such actions could result
in more than a minimal impact on EFH, or if it determines that there is
not a process in place to adequately assess the cumulative impacts of
actions covered under the General Concurrence. NMFS may require further
consultation for these actions on a case-by case basis. Each General
Concurrence should establish specific procedures for further
consultation, if appropriate.
(5) Public review. Prior to providing any Federal agency with a
written statement of General Concurrence for a category of Federal
actions, NMFS will
[[Page 107]]
provide an opportunity for public review through the appropriate
Council(s), or other reasonable opportunity for public review.
(6) Revisions. NMFS will periodically review and revise its findings
of General Concurrence, as appropriate.
(g) EFH Assessments--(1) Preparation requirement. For any Federal
action that may adversely affect EFH, except for those activities
covered by a General Concurrence, Federal agencies must provide NMFS
with a written assessment of the effects of that action on EFH. Federal
agencies may incorporate an EFH Assessment into documents prepared for
other purposes such as ESA Biological Assessments pursuant to 50 CFR
part 402 or NEPA documents and public notices pursuant to 40 CFR part
1500. If an EFH Assessment is contained in another document, it must
include all of the information required in paragraph (g)(2) of this
section and be clearly identified as an EFH Assessment. The procedure
for combining an EFH consultation with other consultation of
environmental reviews is set forth in paragraph (e) of this section.
(2) Mandatory contents. The assessment must contain:
(i) A description of the proposed action.
(ii) An analysis of the effects, including cumulative effects, of
the proposed action on EFH, the managed species, and associated species,
such as major prey species, including affected life history stages.
(iii) The Federal agency's views regarding the effects of the action
on EFH.
(iv) Proposed mitigation, if applicable.
(3) Additional information. If appropriate, the assessment should
also include:
(i) The results of an on-site inspection to evaluate the habitat and
the site-specific effects of the project.
(ii) The views of recognized experts on the habitat or species that
may be affected.
(iii) A review of pertinent literature and related information.
(iv) An analysis of alternatives to the proposed action. Such
analysis should include alternatives that could avoid or minimize
adverse effects on EFH, particularly when an action is non-water
dependent.
(v) Other relevant information.
(4) Incorporation by reference. The assessment may incorporate by
reference a completed EFH Assessment prepared for a similar action,
supplemented with any relevant new project specific information,
provided the proposed action involves similar impacts to EFH in the same
geographic area or a similar ecological setting. It may also incorporate
by reference other relevant environmental assessment documents. These
documents must be provided to NMFS with an EFH Assessment.
(h) Abbreviated consultation procedures--(1) Purpose and criteria.
Abbreviated consultation allows NMFS to quickly determine whether, and
to what degree, a Federal action may adversely affect EFH. Federal
actions that may adversely affect EFH should be addressed through the
abbreviated consultation procedures when those actions do not qualify
for a General Concurrence, but do not have the potential to cause
substantial adverse effects on EFH. For example, the abbreviated
consultation procedures should be used when the adverse effect(s) of an
action or proposed action could be alleviated through minor
modifications.
(2) Notification by agency. The Federal agency should notify NMFS
and, if NMFS so requests, the appropriate Council(s), in writing as
early as practicable regarding proposed actions that may adversely
affect EFH. Notification will facilitate discussion of measures to
conserve the habitat. Such early consultation should occur during pre-
application planning for projects subject to a Federal permit or
license, and during preliminary planning for projects to be funded or
undertaken directly by a Federal agency.
(3) Submittal of EFH Assessment. The Federal agency must submit a
completed EFH Assessment, prepared in accordance with paragraph (g) of
this section, to NMFS for review. Federal agencies will have fulfilled
their consultation requirement under paragraph (a) of this section after
notification and submittal of a complete EFH Assessment.
[[Page 108]]
(4) NMFS response to Federal agency. NMFS must respond in writing as
to whether it concurs with the findings of the EFH Assessment. If NMFS
believes that the proposed action may result in substantial adverse
effects on EFH, or that additional analysis is needed to accurately
assess the effects of the proposed action, NMFS will request that the
Federal agency initiate expanded consultation. Such request will explain
why NMFS believes expanded consultation is needed and will specify any
new information needed. If additional consultation is not necessary,
NMFS will respond by commenting and recommending measures that may be
taken to conserve EFH, pursuant to section 305(b)(4)(A) of the Magnuson-
Stevens Act. NMFS will send a copy of its response to the appropriate
Council.
(5) Timing. The Federal action agency must submit its complete EFH
Assessment to NMFS as soon as practicable, but NMFS must receive it at
least 60 days prior to a final decision on the action. NMFS must respond
in writing within 30 days. NMFS and the Federal action agency may agree
to use a compressed schedule in cases where regulatory approvals or
emergency situations cannot accommodate 30 days for consultation, or to
conduct consultation earlier in the planning cycle for proposed actions
with lengthy approval processes.
(i) Expanded consultation procedures--(1) Purpose and criteria.
Expanded consultation allows maximum opportunity for NMFS and the
Federal agency to work together in the review of the action's impacts on
EFH and the development of EFH conservation recommendations. Expanded
consultation procedures must be used for Federal actions that would
result in substantial adverse effects to EFH. Federal agencies are
encouraged to contact NMFS at the earliest opportunity to discuss
whether the adverse effect of a proposed action makes expanded
consultation appropriate.
(2) Initiation. Expanded consultation begins when NMFS receives from
the Federal agency an EFH Assessment completed in accordance with
paragraph (g) of this section and a written request for expanded
consultation. Federal action agencies are encouraged to provide in the
EFH Assessment the additional information identified under paragraph
(g)(3) of this section. Subject to NMFS's approval, any request for
expanded consultation may encompass a number of similar individual
actions within a given geographic area.
(3) NMFS response to Federal agency. NMFS will:
(i) Review the EFH Assessment, any additional information furnished
by the Federal agency, and other relevant information.
(ii) Conduct a site visit, if appropriate, to assess the quality of
the habitat and to clarify the impacts of the Federal agency action.
Such a site visit should be coordinated with the Federal agency and
appropriate Council(s), if feasible.
(iii) Coordinate its review of the proposed action with the
appropriate Council(s).
(iv) Discuss EFH conservation recommendations with the Federal
agency and provide recommendations to the Federal action agency,
pursuant to section 305(b)(4)(A) of the Magnuson-Stevens Act. NMFS will
also provide a copy of the recommendations to the appropriate
Council(s).
(4) Timing. The Federal action agency must submit its complete EFH
Assessment to NMFS as soon as practicable, but at least 90 days prior to
a final decision on the action. NMFS must respond within 60 days of
submittal of a complete EFH Assessment unless consultation is extended
by agreement between NMFS and the Federal action agency. NMFS and
Federal action agencies may agree to use a compressed schedule in cases
where regulatory approvals or emergency situations cannot accommodate a
60-day consultation period.
(5) Extension of consultation. If NMFS determines that additional
data or analysis would provide better information for development of EFH
conservation recommendations, NMFS may request additional time for
expanded consultation. If NMFS and the Federal action agency agree to an
extension, the Federal action agency should provide the additional
information to NMFS, to the extent practicable. If NMFS and the Federal
action agency do not agree to extend consultation,
[[Page 109]]
NMFS must provide EFH conservation recommendations to the Federal action
agency using the best scientific information available to NMFS.
(j) Responsibilities of Federal action agency following receipt of
EFH conservation recommendations--(1) Federal action agency response. As
required by section 305(b)(4)(B) of the Magnuson-Stevens Act, the
Federal action agency must provide a detailed response in writing to
NMFS and the appropriate Council within 30 days after receiving an EFH
conservation recommendation. Such a response must be provided at least
10 days prior to final approval of the action, if a decision by the
Federal agency is required in fewer than 30 days. The response must
include a description of measures proposed by the agency for avoiding,
mitigating, or offsetting the impact of the activity on EFH. In the case
of a response that is inconsistent with NMFS conservation
recommendations, the Federal action agency must explain its reasons for
not following the recommendations, including the scientific
justification for any disagreements with NMFS over the anticipated
effects of the proposed action and the measures needed to avoid,
minimize, mitigate, or offset such effects.
(2) Further review of decisions inconsistent with NMFS or Council
recommendations. If a Federal action agency decision is inconsistent
with a NMFS EFH conservation recommendation, the Assistant Administrator
for Fisheries may request a meeting with the head of the Federal action
agency, as well as any other agencies involved, to discuss the proposed
action and opportunities for resolving any disagreements. If a Federal
action agency decision is also inconsistent with a Council
recommendation made pursuant to section 305(b)(3) of the Magnuson-
Stevens Act, the Council may request that the Assistant Administrator
initiate further review of the Federal agency's decision and involve the
Council in any interagency discussion to resolve disagreements with the
Federal agency. The Assistant Administrator will make every effort to
accommodate such a request. Memoranda of agreement or other written
procedures will be developed to further define such review processes
with Federal action agencies.
(k) Supplemental consultation. A Federal action agency must
reinitiate consultation with NMFS if the agency substantially revises
its plans for an action in a manner that may adversely affect EFH or if
new information becomes available that affects the basis for NMFS' EFH
conservation recommendations.
Sec. 600.925 NMFS EFH conservation recommendations to Federal and state agencies.
(a) General. Under section 305(b)(4) of the Magnuson-Stevens Act,
NMFS is required to provide EFH conservation recommendations to Federal
and state agencies for actions that would adversely affect EFH. NMFS EFH
conservation recommendations will not suggest that state or Federal
agencies take actions beyond their statutory authority.
(b) Recommendations to Federal agencies. For Federal actions, EFH
conservation recommendations will be provided to Federal action agencies
as part of EFH consultations conducted pursuant to Sec. 600.920. These
recommendations fulfill the requirements of section 305(b)(4)(A) of the
Magnuson-Stevens Act. If NMFS becomes aware of a Federal action that
would adversely affect EFH, but for which a Federal agency has not
completed an EFH consultation, NMFS may request that the Federal agency
initiate EFH consultation or NMFS will provide EFH conservation
recommendations based on the information available. NMFS will provide a
copy of such recommendation to the appropriate Council(s).
(c) Recommendations to state agencies--(1) Establishment of
procedures. Each NMFS Region should use existing coordination procedures
under statutes such as the Coastal Zone Management Act or establish new
procedures to identify state actions that may adversely affect EFH, and
for determining the most appropriate method for providing EFH
conservation recommendations to the state agency. NMFS will provide a
copy of such recommendation to the appropriate Council(s).
[[Page 110]]
(2) Coordination with states on recommendations to Federal agencies.
When an action that would adversely affect EFH requires authorization or
funding by both Federal and state agencies, NMFS will provide the
appropriate state agencies with copies of EFH conservation
recommendations developed as part of the Federal consultation procedures
in Sec. 600.920. NMFS will also seek agreements on sharing information
and copies of recommendations with Federal or state agencies conducting
similar consultation and recommendation processes to ensure coordination
of such efforts.
Sec. 600.930 Council comments and recommendations to Federal and state agencies.
(a) Establishment of procedures. Each Council should establish
procedures for reviewing Federal or state actions that may adversely
affect the EFH of a species managed under its authority. Each Council
may receive information on actions of concern by methods such as:
Directing Council staff to track proposed actions; recommending that the
Council's habitat committee identify actions of concern; or entering
into an agreement with NMFS to have the appropriate Regional
Administrator notify the Council of actions that may adversely impact
EFH. Federal and state actions often follow specific timetables which
may not coincide with Council meetings. Therefore, Councils should
consider establishing abbreviated procedures for the development of
Council recommendations.
(b) Early involvement. Councils should provide comments and
recommendations on proposed state and Federal actions of concern as
early as practicable in project planning to ensure thorough
consideration of Council concerns by the action agency. Copies of
Council comments and recommendations should be provided to NMFS.
(c) Anadromous fishery resources. For the purposes of the commenting
requirement of section 305(b)(3)(B) of the Magnuson-Stevens Act, an
``anadromous fishery resource under a Council's authority'' is an
anadromous species that inhabits waters under the Council's authority at
some time during its life cycle.
Subpart L--Fishing Capacity Reduction
Authority: 16 U.S.C. 1861a(b)-(e).
Source: 65 FR 31443, May 18, 2000, unless otherwise noted.
Sec. 600.1000 Definitions.
In addition to the definitions in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and in
Sec. 600.10 of this title, the terms used in this subpart have the
following meanings:
Address of Record means the business address of a person,
partnership, or corporation. Addresses listed on permits or other NMFS
records are presumed to be business addresses, unless clearly indicated
otherwise.
Bid means the price a vessel owner or reduction fishery permit
holder requests for reduction of his/her fishing capacity. It is an
irrevocable offer in response to the invitation to bid in Sec. 600.1009.
Borrower means, individually and collectively, each post-reduction
fishing permit holder and/or fishing vessel owner fishing in the
reduction fishery.
Business plan means the document containing the information
specified in Sec. 600.1003(n) and required to be submitted with a
request for a financed program.
Business week means a 7-day period, Saturday through Friday.
Controlling fishery management plan or program (CFMP) means either
any fishery management plan or any state fishery management plan or
program, including amendments to the plan or program, pursuant to which
a fishery is managed.
Delivery value means:
(1) For unprocessed fish, all compensation that a fish buyer pays to
a fish seller in exchange for fee fish; and
(2) For processed fish, all compensation that a fish buyer would
have paid to a fish seller in exchange for fee fish if the fee fish had
been unprocessed fish instead of processed fish.
Delivery value encompasses fair market value, as defined herein, and
includes the value of all in-kind compensation or all other goods or
services
[[Page 111]]
exchanged in lieu of cash. It is synonymous with the statutory term
``ex-vessel value'' as used in section 312 of the Magnuson Act.
Deposit principal means all collected fee revenue that a fish buyer
deposits in a segregated account maintained at a federally insured
financial institution for the sole purpose of aggregating collected fee
revenue before sending the fee revenue to NMFS for repaying a reduction
loan.
Fair market value means the amount that a buyer pays a seller in an
arm's length transaction or, alternatively, would pay a seller if the
transaction were at arm's length.
Fee means the amount that fish buyers deduct from the delivery value
under a financed reduction program. The fee is the delivery value times
the reduction fishery's applicable fee rate under section 600.1013.
Fee fish means all fish harvested from a reduction fishery involving
a financed program during the period in which any amount of the
reduction loan remains unpaid. The term fee fish excludes fish harvested
incidentally while fishing for fish not included in the reduction
fishery.
Final development plan means the document NMFS prepares, under
Sec. 600.1006(b) and based on the preliminary development plan the
requester submits, for a subsidized program.
Financed means funded, in any part, by a reduction loan.
Fish buyer means the first ex-vessel party who:
(1) in an arm's--length transaction, purchases fee fish from a fish
seller;
(2) takes fish on consignment from a fish seller; or
(3) otherwise receives fish from a fish seller in a non arm's-length
transaction.
Fish delivery means the point at which a fish buyer first purchases
fee fish or takes possession of fee fish from a fish seller.
Fishing capacity reduction specifications means the minimum amount
of fishing capacity reduction and the maximum amount of reduction loan
principal specified in a business plan.
Fish seller means the party who harvests and first sells or
otherwise delivers fee fish to a fish buyer.
Fishery Management Plan (FMP) means any Federal fishery management
plan, including amendments to the plan, that the Secretary of Commerce
approves or adopts pursuant to section 303 of the Magnuson-Stevens Act.
Fund means the Fishing Capacity Reduction Fund, and each subaccount
for each program, established in the U.S. Treasury for the deposit into,
and disbursement from, all funds, including all reduction loan capital
and all fee revenue, involving each program.
Implementation plan means the plan in Sec. 600.1008 for carrying out
each program.
Implementation regulations mean the regulations in Sec. 600.1008 for
carrying out each program.
Net delivery value means the delivery value minus the fee.
Post-bidding referendum means a referendum that follows bidding
under Sec. 600.1009.
Post-reduction means after a program reduces fishing capacity in a
reduction fishery.
Pre-bidding referendum means a referendum that occurs at any time
after a request for a financed program but before a proposal under
Sec. 600.1008 of a implementation plan and implementation regulations.
Preliminary development plan means the document specified in
Sec. 600.1005(g) and required to be submitted with a request for a
subsidized program.
Processed fish means fish in any form different from the form in
which the fish existed at the time the fish was first harvested, unless
any such difference in form represents, in the reduction fishery
involved, the standard ex-vessel form upon which fish sellers and fish
buyers characteristically base the delivery value of unprocessed fish.
Program means each instance of reduction under this subpart, in each
reduction fishery--starting with a request and ending, for a financed
program, with full reduction loan repayment.
Reduction means the act of reducing fishing capacity under any
program.
Reduction amendment means any amendment, or, where appropriate,
framework adjustment, to a CFMP
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that may be necessary for a program to meet the requirements of this
subpart.
Reduction amendment specifications mean the reduction amendment to a
CFMP specified in a business plan.
Reduction contract means the invitation to bid under Sec. 600.1009,
together with each bidder's irrevocable offer and NMFS' conditional or
non-conditional acceptance of each such bid under Sec. 600.1009.
Reduction cost means the total dollar amount of all reduction
payments to fishing permit owners, fishing vessel owners, or both, in a
reduction fishery.
Reduction fishery means the fishery or portion of a fishery to which
a program applies. The reduction fishery must specify each included
species, as well as any limitations by gear type, fishing vessel size,
geographic area, and any other relevant factor(s).
Reduction loan means a loan, under section 1111 and section 1112 of
Title XI of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1279f
and g App.), for financing any portion, or all, of a financed program's
reduction cost and repayable by a fee under, and in accordance with,
Sec. 600.1012, Sec. 600.1013, and Sec. 600.1014.
Reduction payment means the Federal Government's fishing capacity
reduction payment to a fishing permit owner, fishing vessel owner, or
both, under a reduction contract. Additionally, it is payment for
reduction to each bidder whose bid NMFS accepts under Sec. 600.1009. In
a financed program each reduction payment constitutes a disbursement of
a reduction loan's proceeds and is for either revoking a fishing permit
or both revoking a fishing permit and withdrawing a vessel from fishing
either by scrapping or title restriction.
Reduction permit means any fishing permit revoked in a program in
exchange for a reduction payment under a reduction contract.
Reduction vessel means any fishing vessel withdrawn from fishing
either by scrapping or title restriction in exchange for a reduction
payment under a reduction contract.
Referendum means the voting process under Sec. 600.1010 for
approving the fee system for repaying a reduction loan.
Request means a request, under Sec. 600.1001, for a program.
Requester means a Council for a fishery identified in
Sec. 600.1001(c), a state governor for a fishery identified in
Sec. 600.1001(d), or the Secretary for a fishery identified in
Sec. 600.1001(e).
Scrap means to completely and permanently reduce a fishing vessel's
hull, superstructures, and other fixed structural components to
fragments having value, if any, only as raw materials for reprocessing
or for other non-fisheries use.
Subsidized means wholly funded by anything other than a reduction
loan.
Treasury percentage means the annual percentage rate at which NMFS
must pay interest to the U.S. Treasury on any principal amount that NMFS
borrows from the U.S. Treasury in order to generate the funds with which
to later disburse a reduction loan's principal amount.
Unprocessed fish means fish in the same form as the fish existed at
the time the fish was harvested, unless any difference in form
represents, in the reduction fishery involved, the standard ex-vessel
form upon which fish sellers and fish buyers characteristically base the
delivery value of unprocessed fish.
Vote means a vote in a referendum.
Sec. 600.1001 Requests.
(a) A Council or the Governor of a State under whose authority a
proposed reduction fishery is subject may request that NMFS conduct a
program in that fishery. Each request shall be in writing and shall be
submitted to the Director, Office of Sustainable Fisheries, NMFS. Each
request shall satisfy the requirements of Sec. 600.1003 or
Sec. 600.1005, as applicable, and enable NMFS to make the determinations
required by Sec. 600.1004 or Sec. 600.1006, as applicable.
(b) NMFS cannot conduct a program in any fishery subject to the
jurisdiction of a Council or a state unless NMFS first receives a
request from the Council or the governor to whose jurisdiction the
fishery is subject.
(c) For a fishery subject to the jurisdiction of a Council, only
that Council can or must make the request. If the fishery is subject to
the jurisdiction of two or more Councils, those Councils
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must make a joint request. No Council may make a request, or join in
making a request, until after the Council conducts a public hearing
about the request.
(d) For a fishery subject to the jurisdiction of a State, only the
Governor of that State can make the request. If the fishery is subject
to the jurisdiction of two or more states, the Governors of those States
shall make a joint request. No Governor of a State may make a request,
or join in making a request, until the State conducts a public hearing
about the request.
(e) For a fishery under the direct management authority of the
Secretary, NMFS may conduct a program on NMFS' own motion by fulfilling
the requirements of this subpart that reasonably apply to a program not
initiated by a request.
(f) Where necessary to accommodate special circumstances in a
particular fishery, NMFS may waive, as NMFS deems necessary and
appropriate, compliance with any specific requirements under this
subpart not required by statute.
Sec. 600.1002 General requirements.
(a) Each program must be: (1) Necessary to prevent or end
overfishing, rebuild stocks of fish, or achieve measurable and
significant improvements in the conservation and management of the
reduction fishery;
(2) Accompanied by the appropriate environmental, economic and/or
socioeconomic analyses, in accordance with applicable statutes,
regulations, or other authorities; and
(3) Consistent with the CFMP, including any reduction amendment, for
the reduction fishery.
(b) Each CFMP for a reduction fishery must: (1) Prevent the
replacement of fishing capacity removed by the program through a
moratorium on new entrants, restrictions on vessel upgrades, and other
effort control measures, taking into account the full potential fishing
capacity of the fleet;
(2) Establish a specified or target total allowable catch or other
measures that trigger closure of the fishery or adjustments to reduce
catch; and
(3) Include, for a financed program in a reduction fishery involving
only a portion of a fishery, appropriate provisions for the post-
reduction allocation of fish between the reduction fishery and the rest
of the fishery that both protect the borrower's reduction investment in
the program and support the borrower's ability to repay the reduction
loan.
Sec. 600.1003 Content of a request for a financed program.
A request for a financed program shall:
(a) Specify the reduction fishery.
(b) Project the amount of the reduction and specify what a reduction
of that amount achieves in the reduction fishery.
(c) Specify whether the program is to be wholly or partially
financed and, if the latter, specify the amount and describe the
availability of all funding from sources other than a reduction loan.
(d) Project the availability of all Federal appropriation authority
or other funding, if any, that the financed program requires, including
the time at which funding from each source will be available and how
that relates to the time at which elements of the reduction process are
projected to occur.
(e) Demonstrate how the program meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(a).
(f) Demonstrate how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(b).
(g) If a reduction amendment is necessary, include an actual
reduction amendment or the requester's endorsement in principle of the
reduction amendment specifications in the business plan. Endorsement in
principle is non-binding.
(h) Request that NMFS conduct, at the appropriate time, a referendum
under Sec. 600.1010 of this subpart.
(i) List the names and addresses of record of all fishing permit or
fishing vessel owners who are currently authorized to harvest fish from
the reduction fishery, excluding those whose authority is limited to
incidentally harvesting fish from the reduction fishery during directed
fishing for fish not in the reduction fishery. The list shall be
[[Page 114]]
based on the best information available to the requester. The list shall
take into account any limitation by type of fishing gear operated, size
of fishing vessel operated, geographic area of operation, or other
factor that the proposed program involves. The list may include any
relevant information that NMFS may supply to the requester.
(j) Specify the aggregate total allowable catch in the reduction
fishery during each of the preceding 5 years and the aggregate portion
of such catch harvested by the parties listed under paragraph (i) of
this section.
(k) Specify the criteria for determining the types and number of
fishing permits or fishing permits and fishing vessels that are eligible
for reduction under the program. The criteria shall take into account:
(1) The characteristics of the fishery;
(2) Whether the program is limited to a particular gear type within
the reduction fishery or is otherwise limited by size of fishing vessel
operated, geographic area of operation, or other factor;
(3) Whether the program is limited to fishing permits or involves
both fishing permits and fishing vessels;
(4) The reduction amendment required;
(5) The needs of fishing communities;
(6) Minimizing the program's reduction cost; and
(7) All other relevant factors.
(l) Include the requester's assessment of the program's potential
impact on fisheries other than the reduction fishery, including an
evaluation of the likely increase in participation or effort in such
other fisheries, the general economic impact on such other fisheries,
and recommendations that could mitigate, or enable such other fisheries
to mitigate, any undesirable impacts.
(m) Include any other information or guidance that would assist NMFS
in developing an implementation plan and implementation regulations.
(n) Include a business plan, prepared by, or on behalf of,
knowledgeable and concerned harvesters in the reduction fishery, that:
(1) Specifies a detailed reduction methodology that accomplishes the
maximum sustained reduction in the reduction fishery's fishing capacity
at the least reduction cost and in the minimum period of time, and
otherwise achieves the program result that the requester specifies under
paragraph (b) of this section. The methodology shall:
(i) Establish the appropriate point for NMFS to conduct a pre-
bidding referendum and be sufficiently detailed to enable NMFS to
readily:
(A) Design, propose, and adopt a timely and reliable implementation
plan,
(B) Propose and issue timely and reliable implementation
regulations,
(C) Invite bids,
(D) Accept or reject bids, and
(E) Complete a program in accordance with this subpart, and
(ii) Address, consistently with this subpart:
(A) The contents and terms of invitations to bid,
(B) Bidder eligibility,
(C) The type of information that bidders shall supply,
(D) The criteria for accepting or rejecting bids,
(E) The terms of bid acceptances,
(F) Any referendum procedures in addition to, but consistent with,
those in Sec. 600.1010, and
(G) All other technical matters necessary to conduct a program;
(2) Projects and supports the reduction fishery's annual delivery
value during the reduction loan's repayment period based on documented
analysis of actual representative experience for a reasonable number of
past years in the reduction fishery;
(3) Includes the fishing capacity reduction specifications upon
which both the pre-bidding referendum and the bidding under
Sec. 600.1009 will be based. The reduction loan's maximum principal
amount cannot, at the interest rate projected to prevail at the time of
reduction, exceed the principal amount that can be amortized in 20 years
by 5 percent of the projected delivery value;
(4) States the reduction loan's repayment term and the fee rate, or
range of fee rates, prospectively necessary to amortize the reduction
loan over its repayment term;
(5) Analyzes and demonstrates the ability to repay the reduction
loan at the minimum reduction level and at
[[Page 115]]
various reduction-level increments reasonably greater than the minimum
one, based on the:
(i) Best and most representative historical fishing revenue and
expense data and any other relevant productivity measures available in
the reduction fishery, and
(ii) Projected effect of the program on the post-reduction operating
economics of typical harvesters in the reduction fishery, with
particular emphasis on the extent to which the reduction increases the
ratio of delivery value to fixed cost and improves harvesting's other
relevant productivity measures;
(6) Demonstrates how the business plan's proposed program meets, or
will meet after an appropriate reduction amendment, the requirements in
Sec. 600.1002(a);
(7) Demonstrates how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(b);
(8) Includes, if a reduction amendment is necessary, the reduction
amendment specifications upon which the pre-bidding referendum will be
based;
(9) Includes an assessment of the program's potential impact on
fisheries other than the reduction fishery, including an evaluation of
the likely increase in participation or effort in such other fisheries,
the general economic impact on such other fisheries, and recommendations
that could mitigate, or enable such other fisheries to mitigate, any
undesirable impacts;
(10) Specifies the names and addresses of record of all fish buyers
who can, after reduction, reasonably be expected to receive deliveries
of fee fish. This shall be based on the best information available,
including any information that NMFS may be able to supply to the
business planners;
(11) Specifies, after full consultation with fish buyers, any
special circumstances in the reduction fishery that may require the
implementing regulations to contain provisions in addition to, or
different from, those contained in Sec. 600.1013 and/or Sec. 600.1014 in
order to accommodate the circumstances of, and practices in, the
reduction fishery while still fulfilling the intent and purpose of
Sec. 600.1013 and/or Sec. 600.1014--including, but not limited to:
(i) In the case of reduction fisheries in which state data
confidentiality laws or other impediments may negatively affect the
efficient and effective conduct of the same, specification of who needs
to take what action to resolve any such impediments, and
(ii) In the case of reduction fisheries in which some fish sellers
sell unprocessed, and other fish sellers sell processed fish to fish
buyers, specification of an accurate and efficient method of
establishing the delivery value of processed fish; and
(12) Demonstrates by a survey of potential voters, or by any other
convincing means, a substantial degree of potential voter support for
the business plan and confidence in its feasibility.
(o) Include the requester's statement of belief that the business
plan, the CFMP, the reduction amendment specifications, and all other
request aspects constitute a complete, realistic, and practical prospect
for successfully completing a program in accordance with this subpart.
Sec. 600.1004 Accepting a request for, and determinations about initiating, a financed program.
(a) Accepting a request. Once it receives a request, NMFS will
review any request for a financed program to determine whether the
request conforms with the requirements of Sec. 600.1003. If the request
does not conform, NMFS will return the request with guidance on how to
make the request conform. If the request conforms, NMFS shall accept it
and publish a notice in the Federal Register requesting public comments
on the request. Such notice shall state the name and address of record
of each eligible voter, as well as the basis for having determined the
eligibility of those voters. This shall constitute notice and
opportunity to respond about adding eligible voters, deleting ineligible
voters, and/or correcting any voter's name and address of record. If, in
NMFS' discretion, the comments received in response to such notice
warrants it, or other good cause warrants it, NMFS may modify such list
by publishing another notice in the Federal Register.
[[Page 116]]
(b) Determination about initiating a financed program. After receipt
of a conforming request for a financed program, NMFS will, after
reviewing and responding to any public comments received in response to
the notice published in the Federal Register under paragraph (a) of this
section, initiate the program if NMFS determines that:
(1) The program meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(a);
(2) The CFMP meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(b);
(3) The program, if successfully implemented, is cost effective;
(4) The reduction requested constitutes a realistic and practical
prospect for successfully completing a program in accordance with this
subpart and the borrower is capable of repaying the reduction loan. This
includes enabling NMFS to readily design, propose, and adopt a timely
and reliable implementation plan as well as propose and issue timely and
reliable implementation regulations and otherwise complete the program
in accordance with this subpart; and
(5) The program accords with all other applicable law.
Sec. 600.1005 Content of a request for a subsidized program.
A request for a subsidized program shall:
(a) Specify the reduction fishery.
(b) Project the amount of the reduction and specify what a reduction
of that amount achieves in the reduction fishery.
(c) Project the reduction cost, the amount of reduction cost to be
funded by Federal appropriations, and the amount, if any, to be funded
by other sources.
(d) Project the availability of Federal appropriations or other
funding, if any, that completion of the program requires, including the
time at which funding from each source will be available and how that
relates to the time at which elements of the reduction process are
projected to occur.
(e) List the names and addresses of record of all fishing permit or
fishing vessel owners who are currently authorized to harvest fish from
the reduction fishery, excluding those whose authority is limited to
incidentally harvesting fish from the reduction fishery during directed
fishing for fish not in the reduction fishery. The list shall be based
on the best information available to the requester, including any
information that NMFS may supply to the requester, and take into account
any limitation by type of fishing gear operated, size of fishing vessel
operated, geographic area of operation, or other factor that the
proposed program involves.
(f) Specify the aggregate total allowable catch in the reduction
fishery during each of the preceding 5 years and the aggregate portion
of such catch harvested by the parties listed under paragraph (e) of
this section.
(g) Include a preliminary development plan that: (1) Specifies a
detailed reduction methodology that accomplishes the maximum sustained
reduction in the reduction fishery's fishing capacity at the least cost
and in a minimum period of time, and otherwise achieves the program
result that the requester specifies under paragraph (b) of this section.
The methodology shall:
(i) Be sufficiently detailed to enable NMFS to prepare a final
development plan to serve as the basis for NMFS to readily design,
propose, and adopt a timely and reliable implementation plan and propose
and issue timely and reliable implementation regulations, and
(ii) Include:
(A) The contents and terms of invitations to bid,
(B) Eligible bidders,
(C) The type of information that bidders shall supply,
(D) The criteria for accepting or rejecting bids, and
(E) The terms of bid acceptances;
(2) Specifies the criteria for determining the types and numbers of
fishing permits or fishing permits and fishing vessels that are eligible
for reduction under the program. The criteria shall take into account:
(i) The characteristics of the fishery,
(ii) Whether the program is limited to a particular gear type within
the reduction fishery, or is otherwise limited
[[Page 117]]
by size of fishing vessel operated, geographic area of operation, or
other factor,
(iii) Whether the program is limited to fishing permits or involves
both fishing permits and fishing vessels,
(iv) The reduction amendment required,
(v) The needs of fishing communities, and
(vi) The need to minimize the program's reduction cost; and
(3) Demonstrates the program's cost effectiveness.
(h) Demonstrate how the program meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(a).
(i) Demonstrate how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(b)(1)
and (2).
(j) Specify any other information or guidance that assists NMFS in
preparing a final development plan and a proposed implementation plan
and proposed implementation regulations.
(k) Include the requester's statement of belief that the program
constitutes a reasonably realistic and practical prospect for
successfully completing a program in accordance with this subpart.
Sec. 600.1006 Accepting a request for, and determinations about conducting, a subsidized program.
(a) Accepting a request. NMFS will review any request for a
subsidized program submitted to NMFS to determine whether the request
conforms with the requirements of Sec. 600.1005. If the request does not
conform, NMFS will return it with guidance on how to make the request
conform. If the request conforms, NMFS shall accept it and publish a
notice in the Federal Register requesting public comments about the
request.
(b) Final development plan. After receipt of a conforming request,
NMFS will prepare a final development plan if NMFS determines that the
reduction requested constitutes a realistic and practical prospect for
successfully completing a program in accordance with this subpart. This
includes enabling NMFS to readily design, propose, and adopt a timely
and reliable implementation plan as well as propose and issue timely and
reliable implementation regulations and otherwise complete the program
in accordance with this subpart. NMFS will, as far as possible, base the
final development plan on the requester's preliminary development plan.
Before completing the final development plan, NMFS will consult, as NMFS
deems necessary, with the requester, Federal agencies, state and
regional authorities, affected fishing communities, participants in the
reduction fishery, conservation organizations, and other interested
parties in preparing the final development plan.
(c) Reaffirmation of the request. After completing the final
development plan, NMFS will submit the plan to the requester for the
requester's reaffirmation of the request. Based on the final development
plan, the reaffirmation shall: (1) Certify that the final development
plan meets, or will meet after an appropriate reduction amendment, the
requirements in Sec. 600.1002(a);
(2) Certify that the CFMP meets, or will meet after an appropriate
reduction amendment, the requirements in Sec. 600.1002(b)(1) and (2);
and
(3) Project the date on which the requester will forward any
necessary reduction amendment and, if the requester is a Council,
proposed regulations to implement the reduction amendment. The requester
shall base any necessary reduction amendment on the final development
plan.
(d) Determinations about conducting a subsidized program. After
NMFS' receipt of the requester's reaffirmation, any required reduction
amendment, and any proposed regulations required to implement the
amendment, NMFS will initiate the program if NMFS determines that:
(1) The program meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(a);
(2) The CFMP meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(b)(1) and (2); and
(3) The program is reasonably capable of being successfully
implemented;
(4) The program, if successfully implemented, will be cost
effective; and
(5) The program is in accord with all other applicable provisions of
the Magnuson-Stevens Act and this subpart.
[[Page 118]]
Sec. 600.1007 Reduction amendments.
(a) Each reduction amendment may contain provisions that are either
dependent upon or independent of a program. Each provision of a
reduction amendment is a dependent provision unless the amendment
expressly designates the provision as independent.
(b) Independent provisions are effective without regard to any
subsequent program actions.
(c) Dependent provisions are initially effective for the sole
limited purpose of enabling initiation and completion of the pre-
reduction processing stage of a program.
(d) All dependent provisions of a reduction amendment for a financed
program are fully in force and effect for all other purposes only when
NMFS either:
(1) For bidding results that conform to the fishing capacity
reduction specifications and are not subject to any other condition,
notifies bidders, under Sec. 600.1009(e)(3), that reduction contracts
then exist between the bidders and the United States; or
(2) For bidding results that do not conform to the fishing capacity
reduction specifications or are subject to any other condition, notifies
bidders whose bids NMFS had conditionally accepted, under Sec. 600.1010
(d)(8)(iii), that the condition pertaining to the reduction contracts
between them and the United States is fulfilled.
(e) If NMFS does not, in accordance with this subpart and any
special provisions in the implementation regulations, subsequently make
all reduction payments that circumstances, in NMFS' judgment, reasonably
permit NMFS to make and, thus, complete a program, no dependent
provisions shall then have any further force or effect for any purpose
and all final regulations involving such dependent provisions shall then
be repealed.
Sec. 600.1008 Implementation plan and implementation regulations.
(a) As soon as practicable after deciding to initiate a program,
NMFS will prepare and publish, for a 60-day public comment period, a
proposed implementation plan and implementation regulations. During the
public comment period, NMFS will conduct a public hearing of the
proposed implementation plan and implementation regulations in each
state that the program affects.
(b) To the greatest extent practicable, NMFS will base the
implementation plan and implementation regulations for a financed
program on the business plan. The implementation plan for a financed
program will describe in detail all relevant aspects of implementing the
program, including:
(1) The reduction fishery;
(2) The reduction methodology;
(3) The maximum reduction cost;
(4) The maximum reduction loan amount, if different from the maximum
reduction cost;
(5) The reduction cost funding, if any, other than a reduction loan;
(6) The minimum acceptable reduction level;
(7) The potential amount of the fee;
(8) The criteria for determining the types and number of fishing
permits or fishing permits and fishing vessels eligible to participate
in the program;
(9) The invitation to bid and bidding procedures;
(10) The criteria for determining bid acceptance;
(11) The referendum procedures; and
(12) Any relevant post-referendum reduction procedures other than
those in the implementation regulations or this subpart.
(c) NMFS will base each implementation plan and implementation
regulations for a subsidized program on the final development plan. The
implementation plan will describe in detail all relevant aspects of
implementing the program, including:
(1) The reduction fishery;
(2) The reduction methodology;
(3) The maximum reduction cost;
(4) The reduction-cost funding, if any, other than Federal
appropriations;
(5) The criteria for determining the types and number of fishing
permits or fishing permits and fishing vessels eligible to participate
in the program;
(6) The invitation to bid and bidding procedures;
(7) The criteria for determining bid acceptance; and
(8) Any relevant post-bidding program procedures other than those in
[[Page 119]]
the implementation regulations or this subpart.
(d) The implementation regulations will:
(1) Specify, for invitations to bid, bids, and reduction contracts
under Sec. 600.1009:
(i) Bidder eligibility,
(ii) Bid submission requirements and procedures,
(iii) A bid opening date, before which a bidder may not bid, and a
bid closing date, after which a bidder may not bid,
(iv) A bid expiration date after which the irrevocable offer
contained in each bid expires unless NMFS, before that date, accepts the
bid by mailing a written acceptance notice to the bidder at the bidder's
address of record,
(v) The manner of bid submission and the information each bidder
shall supply for NMFS to deem a bid responsive,
(vi) The conditions under which NMFS will accept or reject a bid,
(vii) The manner in which NMFS will accept or reject a bid, and
(viii) The manner in which NMFS will notify each bidder of bid
acceptance or rejection;
(2) Specify any other special referendum procedures or criteria; and
(3) Specify such other provisions, in addition to and consistent
with those in this subpart, necessary to regulate the individual terms
and conditions of each program and reduction loan. This includes, but is
not limited to:
(i) Provisions for the payment of costs and penalties for non-
payment, non-collection, non-deposit, and/or non-disbursement of the fee
in accordance with Sec. 600.1013 and Sec. 600.1014,
(ii) Prospective fee rate determinations, and
(iii) Any other aspect of fee payment, collection, deposit,
disbursement, accounting, record keeping, and/or reporting.
(e) NMFS will issue final implementation regulations and adopt a
final implementation plan within 45 days of the close of the public-
comment period.
(f) NMFS may repeal the final implementation regulations for any
program if:
(1) For a financed program, the bidding results do not conform to
the fishing capacity reduction specifications or a post-bidding
referendum does not subsequently approve an industry fee system based on
the bidding results;
(2) For a subsidized program, NMFS does not accept bids; and
(3) For either a financed program or a subsidized program, if NMFS
is unable to make all reduction payments due to a material adverse
change.
Sec. 600.1009 Bids.
(a) Each invitation to bid, bid, bid acceptance, reduction contract,
and bidder--or any other party in any way affected by any of the
foregoing--under this subpart is subject to the terms and conditions in
this section:
(1) Each invitation to bid constitutes the entire terms and
conditions of a reduction contract under which:
(i) Each bidder makes an irrevocable offer to the United States of
fishing capacity for reduction, and
(ii) NMFS accepts or rejects, on behalf of the United States, each
bidder's offer;
(2) NMFS may, at any time before the bid expiration date, accept or
reject any or all bids;
(3) For a financed program in which bidding results do not conform
to the fishing capacity reduction specifications, NMFS' acceptance of
any bid is subject to the condition that the industry fee system
necessary to repay the reduction loan is subsequently approved by a
successful post-bidding referendum conducted under Sec. 600.1010.
Approval or disapproval of the industry fee system by post-bidding
referendum is an event that neither the United States nor the bidders
can control. Disapproval of the industry fee system by an unsuccessful
post-bidding referendum fully excuses both parties from any performance
and fully discharges all duties under any reduction contract;
(4) For a financed program in one reduction fishery that is being
conducted under appropriate implementation regulations simultaneously
with another financed program in another reduction fishery, where the
acceptance of bids for each financed program is conditional upon
successful post-bidding referenda approving industry fee systems for
both financed programs,
[[Page 120]]
NMFS' acceptance of all bids is, in addition to any condition under
paragraph (a)(3) of this section, also subject to the additional
conditions that both referenda approve the industry fee systems required
for both financed programs--all as otherwise provided in paragraph
(a)(3) of this section;
(5) Upon NMFS' acceptance of the bid and tender of a reduction
payment, the bidder consents to:
(i) The revocation, by NMFS, of any reduction permit, and
(ii) Where the program also involves the withdrawal of reduction
vessels from fishing:
(A) Title restrictions imposed by the U.S. Coast Guard on any
reduction vessel that is federally documented to forever prohibit and
effectively prevent any future use of the reduction vessel for fishing
in any area subject to the jurisdiction of the United States or any
state, territory, commonwealth, or possession of the United States, or
(B) Where reduction vessel scrapping is involved and the reduction
vessel's owner does not comply with the owner's obligation under the
reduction contract to scrap the reduction vessel, take such measures as
necessary to cause the reduction vessel's prompt scrapping. The
scrapping will be at the reduction vessel owner's risk and expense. Upon
completion of scrapping, NMFS will take such action as may be necessary
to recover from the reduction vessel owner any cost or expense NMFS
incurred in causing the reduction vessel to be scrapped and any other
damages NMFS may have incurred and such owner shall be liable to the
United States for such cost, expenses, and damages;
(6) Money damages not being an adequate remedy for a bidder's breach
of a reduction contract, the United States is, in all particulars,
entitled to specific performance of each reduction contract. This
includes, but is not limited to, the scrapping of a reduction vessel;
(7) Any reduction payment is available, upon timely and adequately
documented notice to NMFS, to satisfy liens, as allowed by law, against
any reduction permit/and or reduction vessel; provided, however, that:
(i) No reduction payment to any bidder either relieves the bidder of
responsibility to discharge the obligation which gives rise to any lien
or relieves any lien holder of responsibility to protect the lien
holder's interest,
(ii) No reduction payment in any way gives rise to any
liability of the United States for the obligation underlying any
lien,
(iii) No lien holder has any right or standing, not otherwise
provided by law, against the United States in connection with the
revocation of any reduction permit or the title restriction or scrapping
of any reduction vessel under this subpart, and
(iv) This subpart does not provide any lien holder with any right or
standing to seek to set aside any revocation of any reduction permit or
the title restriction or scrapping of any reduction vessel for which the
United States made, or has agreed to make, any reduction payment. A lien
holder is limited to recovery against the holder of the reduction permit
or the owner of the reduction vessel as otherwise provided by law; and
(8) Each invitation to bid may specify such other terms and
conditions as NMFS believes necessary to enforce specific performance of
each reduction contract or otherwise to ensure completing each program.
This includes, but is not limited to, each bidder's certification,
subject to the penalties in Sec. 600.1017, of the bidder's full
authority to submit each bid and to dispose of the property involved in
the bid in the manner contemplated by each invitation to bid.
(b) NMFS will not invite bids for any program until NMFS determines
that:
(1) Any necessary reduction amendment is fully and finally approved
and all provisions except those dependent on the completion of reduction
are implemented;
(2) The final implementation plan is adopted and the final
implementation regulations are issued;
(3) All required program funding is approved and in place, including
all Federal appropriation and apportionment authority;
(4) Any reduction loan involved is fully approved;
[[Page 121]]
(5) Any non-Federal funding involved is fully available at the
required time for NMFS disbursement as reduction payments; and
(6) All other actions necessary to disburse reduction payments,
except for matters involving bidding and post-bidding referenda, are
completed.
(c) After making the affirmative determinations required under
paragraph (b) of this section, NMFS will publish a Federal Register
notice inviting eligible bidders to offer to the United States, under
this subpart, fishing capacity for reduction.
(d) NMFS may extend a bid closing date and/or a bid expiration date
for a reasonable period. NMFS may also issue serial invitations to bid
if the result of previous bidding, in NMFS' judgment, warrant this.
(e) After the bid expiration date, NMFS will:
(1) Analyze responsive bids;
(2) Determine which bids, if any, NMFS accepts; and
(3) Notify, by U.S. mail at each bidder's address of
record, those bidders whose bids NMFS accepts that a reduction
contract now exists between them and the United States--subject, where
appropriate, to the conditions provided for elsewhere in this subpart.
(f) NMFS will keep confidential the identity of all bidders whose
bids NMFS does not accept. In financed programs where bidding results do
not conform to the fishing capacity reduction specifications, NMFS also
will keep confidential the identity of all bidders whose bids NMFS does
accept until after completing a successful post-bidding referendum under
Sec. 600.1010.
Sec. 600.1010 Referenda.
(a) Referendum success. A referendum is successful if at least two-
thirds of the ballots that qualify to be counted as referendum votes
under subparagraph (d)(6) of this section are cast in favor of an
industry fee system.
(b) Pre-bidding referendum--(1) Initial referendum. An initial pre-
bidding referendum shall be conducted for each financed program. The
business plan shall, subject to this subpart, determine the
chronological relationship of the initial pre-bidding referendum to
other pre-bidding aspects of the reduction process sequence. The initial
pre-bidding referendum shall be based on the fishing capacity reduction
specifications. If the initial pre-bidding referendum precedes the
adoption of any necessary reduction amendment, the initial pre-bidding
referendum shall also be based on the reduction amendment
specifications. If the initial pre-bidding referendum follows the
adoption of any necessary reduction amendment, the initial pre-bidding
referendum shall also be based on the adopted reduction amendment;
(2) Successful initial pre-bidding referendum. If the initial pre-
bidding referendum is successful, the reduction process will proceed as
follows:
(i) If the initial pre-bidding referendum follows reduction
amendment adoption, no second pre-bidding referendum shall be conducted,
(ii) If the initial pre-bidding referendum precedes reduction
amendment adoption, a second pre-bidding referendum shall be conducted
if, in NMFS' judgment, the reduction amendment subsequently adopted
differs, in any respect materially affecting the borrower's reduction
investment in the program and the borrower's ability to repay the
reduction loan, from the reduction amendment specifications upon which
the initial pre-bidding referendum successfully occurred. The sole
purpose of any second pre-bidding referendum shall be to determine
whether the voters authorize an industry fee system despite any such
difference between the reduction amendment specifications and a
subsequently adopted reduction amendment.
(3) Unsuccessful initial pre-bidding referendum. If the initial pre-
bidding referendum is unsuccessful, the reduction process will either
cease or NMFS may suspend the process pending an appropriate amendment
of the business plan and the request.
(c) Post-bidding referendum. A post-bidding referendum shall occur
only if, in NMFS' judgment, the result of bidding under Sec. 600.1009
does not conform, in any material respect, to the fishing capacity
reduction specifications and
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such result justifies, in NMFS' judgment, conducting a post-bidding
referendum. Bidding that results in reducing fishing capacity in any
amount not less than the minimum fishing capacity reduction amount for
any reduction loan amount not more than the maximum reduction loan
amount, and otherwise achieves all material requirements of the fishing
capacity reduction specifications, shall conform to the fishing capacity
reduction specifications. The sole purpose of any post-bidding
referendum shall be to determine whether voters authorize an industry
fee system for bidding that results in reducing fishing capacity in any
amount materially less than the minimum amount in the fishing capacity
reduction specifications.
(d) NMFS will conduct referenda in accordance with the following:
(1) Eligible voters. The parties eligible to vote in each referendum are
the parties whose names are listed as being eligible to vote in the
notice published in the Federal Register under Sec. 600.1004(a);
(2) Ballot issuance. NMFS will mail, by U.S. certified mail, return
receipt requested, a ballot to each eligible voter. Each ballot will
bear a randomly derived, 5-digit number assigned to each eligible voter.
Each ballot will contain a place for the voter to vote for or against
the proposed industry fee system and a place, adjacent to the 5-digit
number, for the signature of the fishing permit or fishing vessel owner
to whom the ballot is addressed or, if the fishing permit or fishing
vessel owner is an organization, the person having authority to vote and
cast the ballot on the organization's behalf. Each ballot will contain a
place for the person signing the ballot to print his or her name. NMFS
will enclose with each ballot a specially-marked, postage-paid, pre-
addressed envelope that each voter shall use to return the ballot to
NMFS;
(3) Voter certification. Each ballot will contain a certification,
subject to the penalties set forth in Sec. 600.1017, that the person
signing the ballot is the fishing permit or fishing vessel owner to whom
the ballot is addressed or, if the fishing permit or fishing vessel
owner is an organization, the person having authority to vote and cast
the ballot on the organization's behalf;
(4) Information included on a ballot. Each ballot mailing will:
(i) Summarize the referendum's nature and purpose,
(ii) Specify the date by which NMFS must receive a ballot in order
for the ballot to be counted as a qualified vote,
(iii) Identify the place on the ballot for the voter to vote for or
against the proposed industry fee system, the place on the ballot where
the voter shall sign the ballot, and the purpose of the return envelope,
(iv) For each pre-bidding referendum, state:
(A) The fishing capacity reduction specifications,
(B) The reduction loan's repayment term, and
(C) The fee rate, or range of fee rates, prospectively necessary to
amortize the reduction loan over the loan's term,
(v) For each initial pre-bidding referendum that precedes reduction
amendment adoption, state the reduction amendment specifications,
(vi) For each initial pre-bidding referendum that follows reduction
amendment adoption, summarize the material aspects of the reduction
amendment adopted,
(vii) For each second pre-bidding referendum, summarize how the
adopted reduction amendment materially differs from the reduction
amendment specifications upon which a successful initial pre-bidding
referendum occurred and how this material difference affects the
borrower's reduction investment in the program and the borrower's
ability to repay the reduction loan,
(viii) For each post-bidding referendum, specify the actual bidding
results that do not conform to the fishing capacity reduction
specifications, and
(ix) State or include whatever else NMFS deems appropriate;
(5) Enclosures to accompany a ballot. Each ballot mailing will
include:
(i) A specially-marked, postage-paid, and pre-addressed envelope
that a voter must use to return the original of a ballot to NMFS by
whatever means of delivery the voter chooses, and
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(ii) Such other materials as NMFS deems appropriate;
(6) Vote qualification. A completed ballot qualifies to be counted
as a vote if the ballot:
(i) Is physically received by NMFS on or before the last day NMFS
specifies for receipt of the ballot,
(ii) Is cast for or against the proposed industry fee system,
(iii) Is signed by the voter,
(iv) Is the original ballot NMFS sent to the voter bearing the same
5-digit number that NMFS assigned to the voter, and
(v) Was returned to NMFS in the specially-marked envelope that NMFS
provided for the ballot's return;
(6) Vote tally and notification. NMFS will:
(i) Tally all ballots qualified to be counted as referendum votes,
(ii) Notify, by U.S. mail at the address of record, all eligible
voters who received ballots of:
(A) The number of potential voters,
(B) The number of actual voters who returned a ballot,
(C) The number of returned ballots that qualified to be counted as
referendum votes,
(D) The number of votes for and the number of votes against the
industry fee system, and
(E) Whether the referendum was successful and approved the industry
fee system or unsuccessful and disapproved the industry fee system, and
(iii) If a successful referendum is a post-bidding referendum, NMFS
will, at the same time and in the same manner, also notify the bidders
whose bids were conditionally accepted that the condition pertaining to
the reduction contracts between them and the United States is fulfilled;
(7) Conclusiveness of referendum determinations. NMFS'
determinations about ballot qualifications and about all other
referendum matters, including, but not limited to, eligible voters and
their addresses of record, are conclusive and final as of the date NMFS
makes such determinations. No matter respecting such determinations
shall impair, invalidate, avoid, or otherwise render unenforceable any
referendum, reduction contract, reduction loan, or fee payment and
collection obligation under Sec. 600.1013 and Sec. 600.1014 necessary to
repay any reduction loan;
(8) Ballot confidentiality. NMFS will not voluntarily release the
name of any party who voted. NMFS will restrict the availability of all
voter information to the maximum extent allowed by law; and
(9) Conclusive authorization of industry fee system. Each successful
referendum conclusively authorizes NMFS' imposition of an industry fee
system--including the fee payment, collection, and other provisions
regarding fee payment and collection under Sec. 600.1013 and
Sec. 600.1014--to repay the reduction loan for each financed program
that NMFS conducts under this subpart.
Sec. 600.1011 Reduction methods and other conditions.
(a) Reduction permits or reduction permits and reduction vessels.
Each program may involve either the surrender and revocation of
reduction permits or both the surrender and revocation of reduction
permits and the withdrawal from fishing either by title restriction or
by scrapping of reduction vessels. No financed program may, however,
require such title restriction or scrapping of reduction vessels unless
the business plan voluntarily includes the same.
(b) Reduction permit revocation and surrender. Each reduction permit
is, upon NMFS' tender of the reduction payment for the reduction permit,
forever revoked. Each reduction permit holder shall, upon NMFS' tender
of the reduction payment, surrender the original reduction permit to
NMFS. The reduction permit holder, upon NMFS' tender of the reduction
payment, forever relinquishes any claim associated with the reduction
permit and with the fishing vessel that was used to harvest fishery
resources under the reduction permit that could qualify the reduction
permit holder or the fishing vessel owner for any present or future
limited access system fishing permit in the reduction fishery.
(c) Reduction vessel title restriction or scrapping. For each
program that involves reduction vessel title restriction or scrapping:
(1) Each reduction vessel that is subject to title restriction only
and is thus not required to be scrapped, is, upon
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NMFS' tender of the reduction payment, forever prohibited from any
future use for fishing in any area subject to the jurisdiction of the
United States or any State, territory, possession, or commonwealth of
the United States. NMFS will request that the U.S. Coast Guard
permanently restrict each such reduction vessel's title to exclude the
reduction vessel's future use for fishing in any such area;
(2) Each reduction vessel owner whose reduction vessel is required
to be scrapped shall, upon NMFS' tender of the reduction payment,
immediately cease all further use of the reduction vessel and arrange,
without delay and at the reduction vessel owner's expense, to scrap the
reduction vessel to NMFS' satisfaction, including adequate provision for
NMFS to document the physical act of scrapping; and
(3) Each reduction vessel owner, upon NMFS' tender of the reduction
payment, forever relinquishes any claim associated with the reduction
vessel and with the reduction permit that could qualify the reduction
vessel owner or the reduction permit holder for any present or future
limited access system fishing permit in the reduction fishery.
(d) Fishing permits in a non-reduction fishery. A financed program
that does not involve the withdrawal from fishing or scrapping of
reduction vessels may not require any holder of a reduction permit in a
reduction fishery to surrender any fishing permit in any non-reduction
fishery or restrict or revoke any fishing permit other than a reduction
permit in the reduction fishery, except those fishing permits
authorizing the incidental harvesting of species in any non-reduction
fishery during, and as a consequence of, directed fishing for species in
the reduction fishery.
(e) Reduction vessels disposition. Where a business plan requires
the withdrawal from fishing of reduction vessels as well as the
revocation of reduction permits: (1) Each reduction vessel that is not
documented under Federal law must in every case always be scrapped,
without regard to whether a program is a financed program or a
subsidized program;
(2) No financed program may require any disposition of a reduction
vessel documented under Federal law other than the title restriction in
paragraph (b) of this section unless the business plan volunteers to do
otherwise; and
(3) Any subsidized program may require the scrapping of reduction
vessels documented under Federal law.
(f) Reduction payments. NMFS will disburse all reduction payments in
the amount and in the manner prescribed in reduction contracts, except
reduction payments that a bidder's reduction-contract nonperformance
prevents NMFS from disbursing. In financed programs, the reduction
loan's principal amount is the total amount of all reduction payments
that NMFS disburses from the proceeds of a reduction loan. Any reduction
payment that NMFS, because of a bidder's reduction-contract
nonperformance, disburses but subsequently recovers, shall reduce the
principal amount of the reduction loan accordingly.
(g) Effect of reduction-contract nonperformance. No referendum, no
reduction contract, no reduction loan, and no fee payment and collection
obligation under Sec. 600.1013 and Sec. 600.1014 necessary to repay any
reduction loan, shall be impaired, invalidated, avoided, or otherwise
rendered unenforceable by virtue of any reduction contract's
nonperformance. This is without regard to the cause of, or reason for,
nonperformance. NMFS shall endeavor to enforce the specific performance
of all reduction contracts, but NMFS' inability, for any reason, to
enforce specific performance for any portion of such reduction contracts
shall not relieve fish sellers of their obligation to pay, and fish
buyers of their obligation to collect, the fee necessary to fully repay
the full reduction loan balance that results from all reduction payments
that NMFS actually makes and does not recover.
(h) Program completion. Other than the payment and collection of the
fee that repays a reduction loan and any other residual matters
regarding reduction payments and the disposition of reduction permits
and reduction vessels, a program shall be completed when NMFS tenders or
makes all reduction payments under all reduction
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contracts that circumstances, in NMFS' judgment, reasonably permit NMFS
to make.
Sec. 600.1012 Reduction loan.
(a) Obligation. The borrower shall be obligated to repay a reduction
loan. The borrower's obligation to repay a reduction loan shall be
discharged by fish sellers paying a fee in accordance with
Sec. 600.1013. Fish buyers shall be obligated to collect the fee in
accordance with Sec. 600.1013 and to deposit and disburse the fee
revenue in accordance with Sec. 600.1014.
(b) Principal amount, interest rate, repayment term, and penalties
for non-payment or non-collection. The reduction loan shall be:
(1) In a principal amount that shall be determined by subsequent
program events under this subpart, but which shall not exceed the
maximum principal amount in the fishing capacity reduction
specifications;
(2) At an annual rate, that shall be determined by subsequent
events, of simple interest on the reduction loan's principal balance
that shall equal 2 percent plus the Treasury percentage;
(3) Repayable over the repayment term specified in the business plan
or otherwise determined by subsequent events; and
(4) Subject to such provisions as implementation regulations shall
specify for the payment of costs and penalties for non-payment, non-
collection, non-deposit, and/or non-disbursement in accordance with
Sec. 600.1013 and Sec. 600.1014.
(c) Effect of prospective interest rate. Any difference between a
prospective interest rate projected, for the purpose of any aspect of
reduction planning or processing under this subpart, before the U.S.
Treasury determines the Treasury percentage and an interest rate first
known after the U.S. Treasury determines the Treasury percentage shall
not void, invalidate, or otherwise impair any reduction contract, any
reduction loan repayment obligation, or any other aspect of the
reduction process under this subpart. Should any such difference result
in a reduction loan that cannot, at the maximum fee rate allowed by law,
be repaid, as previously projected, within the maximum maturity, any
amount of the reduction loan remaining unpaid at maturity shall be
repaid after maturity by continuing fee payment and collection under
this subpart at such maximum fee rate until the reduction loan's unpaid
principal balance and accrued interest is fully repaid. The above
notwithstanding, at the discretion of the Secretary, the reduction
contract can be voided if a material adverse change affects the
reduction contract, reduction loan obligation, or any other aspect of
the reduction process under this subpart.
Sec. 600.1013 Fee payment and collection.
(a) Amount. The fee amount is the delivery value times the fee rate.
(b) Rate. NMFS will establish the fee rate. The fee rate may not
exceed 5 percent of the delivery value. NMFS will establish the initial
fee rate by calculating the fee revenue annually required to amortize a
reduction loan over the reduction loan's term, projecting the annual
delivery value, and expressing such fee revenue as a percentage of such
delivery value. Before each anniversary of the initial fee rate
determination, NMFS will recalculate the fee rate reasonably required to
ensure reduction loan repayment. This will include any changed delivery
value projections and any adjustment required to correct for previous
delivery values higher or lower than projected.
(c) Payment and collection. (1) The full fee is due and payable at
the time of fish delivery. Each fish buyer shall collect the fee at the
time of fish delivery by deducting the fee from the delivery value
before paying, or promising to pay, the net delivery value. Each fish
seller shall pay the fee at the time of fish delivery by receiving from
the fish buyer the net delivery value, or the fish buyer's promise to
pay the net delivery value, rather than the delivery value. Regardless
of when the fish buyer pays the net delivery value, the fish buyer shall
collect the fee at the time of fish delivery;
(2) In the event of any post-delivery payment for fee fish--
including, but not limited to bonuses--whose amount depends on
conditions that cannot be known until after fish delivery, that either
first determines the delivery value or later increases the previous
delivery
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value, the fish seller shall pay, and the fish buyer shall collect, at
the time the amount of such post-delivery payment first becomes known,
the fee that would otherwise have been due and payable as if the amount
of the post-delivery payment had been known, and as if the post-delivery
payment had consequently occurred, at the time of initial fish delivery;
(3)(i) Each fish seller shall be deemed to be, for the purpose of
the fee collection, deposit, disbursement, and accounting requirements
of this subpart, both the fish seller and the fish buyer, and shall be
responsible for all requirements and liable for any penalties under this
subpart applicable to fish sellers and/or fish buyers, each time that a
fish seller sells fee fish to:
(A) Any party whose place of business is not located in the United
States, who does not take delivery or possession of the fee fish in the
United States, who is not otherwise subject to this subpart, or to whom
or against whom NMFS cannot otherwise apply or enforce this subpart,
(B) Any party who is a general food-service wholesaler or supplier,
a restaurant, a retailer, a consumer, some other type of end-user, or
some other party not engaged in the business of buying fish from fish
sellers for the purpose of reselling the fish, either with or without
processing the fish, or
(C) Any other party who the fish seller has good reason to believe
is a party not subject to this subpart or to whom or against whom NMFS
cannot otherwise apply or enforce this subpart,
(ii) In each such case the fish seller shall, with respect to the
fee fish involved in each such case, discharge, in addition to the fee
payment requirements of this subpart, all the fee collection, deposit,
disbursement, accounting, record keeping, and reporting requirements
that this subpart otherwise imposes on the fish buyer, and the fish
seller shall be subject to all the penalties this subpart provides for a
fish buyer's failure to discharge such requirements;
(4) Fee payment begins on the date NMFS specifies under the
notification procedures of paragraph (d) of this section and continues
without interruption at the fee rates NMFS specifies in accordance this
subpart until NMFS determines that the reduction loan is fully repaid.
If a reduction loan is, for any reason, not fully repaid at the maturity
of the reduction loan's original amortization period, fee payment and
collection shall continue until the reduction loan is fully repaid,
notwithstanding that the time required to fully repay the reduction loan
exceeds the reduction loan's initially permissible maturity.
(d) Notification. (1) At least 30 days before the effective date of
any fee or of any fee rate change, NMFS will publish a Federal Register
notice establishing the date from and after which the fee or fee rate
change is effective. NMFS will then also send, by U.S. mail, an
appropriate notification to each affected fish seller and fish buyer of
whom NMFS has notice;
(2) When NMFS determines that a reduction loan is fully repaid, NMFS
will publish a Federal Register notice that the fee is no longer in
effect and should no longer be either paid or collected. NMFS will then
also send, by U.S. mail, notification to each affected fish seller and
fish buyer of whom NMFS has knowledge;
(3) If NMFS fails to notify a fish seller or a fish buyer by U.S.
mail, or if the fish seller or fish buyer otherwise does not receive the
notice, of the date fee payments start or of the fee rate in effect,
each fish seller is, nevertheless, obligated to pay the fee at the fee
rate in effect and each fish buyer is, nevertheless, obligated to
collect the fee at the fee rate in effect.
(e) Failure to pay or collect. (1) If a fish buyer refuses to
collect the fee in the amount and manner that this subpart requires, the
fish seller shall then advise the fish buyer of the fish seller's fee
payment obligation and of the fish buyer's fee collection obligation. If
the fish buyer still refuses to properly collect the fee, the fish
seller, within the next 7 calendar days, shall forward the fee to NMFS.
The fish seller at the same time shall also advise NMFS in writing of
the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
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(ii) The name of the fishing vessel from which the fish seller made
fish delivery and the date of doing so,
(iii) The quantity and delivery value of each species of fee fish
that the fish seller delivered, and
(iv) The fish buyer's reason, if known, for refusing to collect the
fee in accordance with this subpart;
(2) If a fish seller refuses to pay the fee in the amount and manner
that this subpart requires, the fish buyer shall then advise the fish
seller of the fish buyer's collection obligation and of the fish
seller's payment obligation. If the fish seller still refuses to pay the
fee, the fish buyer shall then either deduct the fee from the delivery
value over the fish seller's protest or refuse to buy the fee fish. The
fish buyer shall also, within the next 7 calendar days, advise NMFS in
writing of the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
(ii) The name of the fishing vessel from which the fish seller made
or attempted to make fish delivery and the date of doing so,
(iii) The quantity and delivery value of each species of fee fish
the fish seller delivered or attempted to deliver,
(iv) Whether the fish buyer deducted the fee over the fish seller's
protest or refused to buy the fee fish, and
(v) The fish seller's reason, if known, for refusing to pay the fee
in accordance with this subpart.
(f) Implementation regulations at variance with this section. If any
special circumstances in a reduction fishery require, in NMFS's
judgment, fee payment and/or collection provisions in addition to, or
different from, those in this section in order to accommodate the
circumstances of, and practices in, a reduction fishery while still
fulfilling the intent and purpose of this section, NMFS may,
notwithstanding this section, include such provisions in the
implementation regulations for such reduction fishery.
Sec. 600.1014 Fee collection deposits, disbursements, records, and reports.
(a) Deposit accounts. Each fish buyer that this subpart requires to
collect a fee shall maintain a segregated account at a federally insured
financial institution for the sole purpose of depositing collected fee
revenue and disbursing the fee revenue directly to NMFS in accordance
with paragraph (c) of this section.
(b) Fee collection deposits. Each fish buyer, no less frequently
than at the end of each business week, shall deposit, in the deposit
account established under paragraph (a) of this section, all fee
revenue, not previously deposited, that the fish buyer collects through
a date not more than two calendar days before the date of deposit.
Neither the deposit account nor the principal amount of deposits in the
account may be pledged, assigned, or used for any purpose other than
aggregating collected fee revenue for disbursement to the Fund in
accordance with paragraph (c) of this section. The fish buyer is
entitled, at any time, to withdraw deposit interest, if any, but never
deposit principal, from the deposit account for the fish buyer's own use
and purposes.
(c) Deposit principal disbursement. On the last business day of each
month, or more frequently if the amount in the account exceeds the
account limit for insurance purposes, the fish buyer shall disburse to
NMFS the full amount of deposit principal then in the deposit account.
The fish buyer shall do this by check made payable to the Fund
subaccount to which the deposit principal relates. The fish buyer shall
mail each such check to the Fund subaccount lockbox that NMFS
establishes for the receipt of the disbursements for each program. Each
disbursement shall be accompanied by the fish buyer's settlement sheet
completed in the manner and form that NMFS specifies. NMFS will specify
the Fund subaccount lockbox and the manner and form of settlement sheet
by means of the notification in Sec. 600.1013(d).
(d) Records maintenance. Each fish buyer shall maintain, in a secure
and orderly manner for a period of at least 3 years from the date of
each transaction involved, at least the following information:
(1) For all deliveries of fee fish that the fish buyer buys from
each fish seller:
(i) The date of delivery,
(ii) The seller's identity,
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(iii) The weight, number, or volume of each species of fee fish
delivered,
(iv) The identity of the fishing vessel that delivered the fee fish,
(v) The delivery value of each species of fee fish,
(vi) The net delivery value,
(vii) The identity of the party to whom the net delivery value is
paid, if other than the fish seller,
(viii) The date the net delivery value was paid, and
(ix) The total fee amount collected;
(2) For all fee collection deposits to and disbursements from the
deposit account:
(i) The dates and amounts of deposits,
(ii) The dates and amounts of disbursements to the Fund's lockbox
account, and
(iii) The dates and amounts of disbursements to the fish buyer or
other parties of interest earned on deposits.
(e) Annual report. In each year, on the date to be specified in each
implementation regulation, succeeding the year during which NMFS first
implemented a fee, each fish buyer shall submit to NMFS a report, on or
in the form NMFS specifies, containing the following information for the
preceding year, or whatever longer period may be involved in the first
annual report, for all fee fish each fish buyer purchases from fish
sellers: (1) Total weight, number, or volume bought;
(2) Total delivery value paid;
(3) Total fee amounts collected;
(4) Total fee collection amounts deposited by month;
(5) Dates and amounts of monthly disbursements to each Fund lockbox
account;
(6) Total amount of interest earned on deposits; and
(7) Depository account balance at year-end.
(f) State records. If landing records that a state requires from
fish sellers contain some or all of the data that this section requires
and state confidentiality laws or regulations do not prevent NMFS'
access to the records maintained for the state, then fish buyers can use
such records to meet appropriate portions of this section's
recordkeeping requirements. If, however, state confidentiality laws or
regulations make such records unavailable to NMFS, then fish buyers
shall maintain separate records for NMFS that meet the requirements of
this section. If any state law or regulation prohibits fish buyers, or
fish sellers where appropriate, from keeping, for the purpose of
complying with any requirement of this section, separate records that
involve some or all of the same data elements as the landing records
that the fish buyers also keep, for state purposes and under state law
or regulation, then a financed reduction program will not be possible.
(g) Audits. NMFS or its agents may audit, in whatever manner NMFS
believes reasonably necessary for the duly diligent administration of
reduction loans, the financial records of fish buyers and fish sellers
in each reduction fishery in order to ensure proper fee payment,
collection, deposit, disbursement, accounting, record keeping, and
reporting. Fish buyers and fish sellers shall make all records of all
program transactions involving post-reduction fish harvests, fish
deliveries, and fee payments, collections, deposits, disbursements,
accounting, record keeping, and reporting available to NMFS or NMFS'
agents at reasonable times and places and promptly provide all requested
information reasonably related to these records that such fish sellers
and fish buyers may otherwise lawfully provide. Trip tickets (or similar
accounting records establishing the pounds of fee fish that each fish
buyer buys from each fish seller each time that each fish buyer does so
and each price that each fish buyer then pays to each fish seller for
the fee fish) are essential audit documentation.
(h) Confidentiality of records. NMFS and NMFS' auditing agents shall
maintain the confidentiality of all data to which NMFS has access under
this section and shall neither release the data nor allow the data's use
for any purpose other than the purpose of this subpart; provided,
however, that NMFS may aggregate such data so as to preclude their
identification with any fish buyer or any fish seller and use them in
the aggregate for other purposes).
(i) Refunds. When NMFS determines that a reduction loan is fully
repaid,
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NMFS will refund any excess fee receipts, on a last-in/first-out basis,
to the fish buyers. Fish buyers shall return the refunds, on a last-in/
first-out basis, to the fish sellers who paid the amounts refunded.
(j) Implementation regulations at variance with this section. If any
special circumstances in a reduction fishery require, in NMFS's
judgment, fee collection deposit, disbursement, or records provisions in
addition to, or different from, those in this section in order to
accommodate the circumstances of, and practices in, a reduction fishery
while still fulfilling the intent and purpose of this section, NMFS may,
notwithstanding this section, include such provisions in the
implementation regulations for such reduction fishery.
Sec. 600.1015 Late charges.
The late charge to fish buyers for fee payment, collection, deposit,
and/or disbursement shall be one and one-half (1.5) percent per month,
or the maximum rate permitted by state law, for the total amount of the
fee not paid, collected, deposited, and/or disbursed when due to be
paid, collected, deposited, and/or disbursed. The full late charge shall
apply to the fee for each month or portion of a month that the fee
remains unpaid, uncollected, undeposited, and/or undisbursed.
Sec. 600.1016 Enforcement.
In accordance with applicable law or other authority, NMFS may take
appropriate action against each fish seller and/or fish buyer
responsible for non-payment, non-collection, non-deposit, and/or non-
disbursement of the fee in accordance with this subpart to enforce the
collection from such fish seller and/or fish buyer of any fee (including
penalties and all costs of collection) due and owing the United States
on account of the loan that such fish seller and/or fish buyer should
have, but did not, pay, collect, deposit, and/or disburse in accordance
with this subpart. All such loan recoveries shall be applied to reduce
the unpaid balance of the loan.
Sec. 600.1017 Prohibitions and penalties.
(a) The following activities are prohibited, and it is unlawful for
any party to:
(1) Vote in any referendum under this subpart if the party is
ineligible to do so;
(2) Vote more than once in any referendum under this subpart;
(3) Sign or otherwise cast a ballot on behalf of a voter in any
referendum under this subpart unless the voter has fully authorized the
party to do so and doing so otherwise comports with this subpart;
(4) Interfere with or attempt to hinder, delay, buy, or otherwise
unduly or unlawfully influence any eligible voter's vote in any
referendum under this subpart;
(5) Submit a fraudulent, unauthorized, incomplete, misleading,
unenforceable by specific performance, or inaccurate bid in response to
an invitation to bid under this subpart or, in any other way, interfere
with or attempt to interfere with, hinder, or delay, any invitation to
bid, any bid submitted under any invitation to bid, any reduction
contract, or any other reduction process in connection with any
invitation to bid;
(6) Revoke or attempt to revoke any bid under this subpart;
(7) Fail to comply with the terms and conditions of any invitation
to bid, bid, or reduction contract under this subpart, including NMFS'
right under such reduction contracts to specific performance;
(8) Fail to fully and properly pay and collect any fee due payable,
and collectible under this subpart or otherwise avoid, decrease,
interfere with, hinder, or delay any such payment and collection,
(9) Convert, or otherwise use for any purpose other than the purpose
this subpart intends, any paid or collected fee;
(10) Fail to fully and properly deposit on time the full amount of
all fee revenue collected under this subpart into a deposit account and
disburse the full amount of all deposit principal to the Fund's lockbox
account--all as this subpart requires;
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(11) Fail to maintain full, timely, and proper fee payment,
collection, deposit, and/or disbursement records or make full, timely,
and proper reports of such information to NMFS--all as this subpart
requires;
(12) Fail to advise NMFS of any fish seller's refusal to pay, or of
any fish buyer's refusal to collect, any fee due and payable under this
subpart;
(13) Refuse to allow NMFS or agents that NMFS designates to review
and audit at reasonable times all books and records reasonably pertinent
to fee payment, collection, deposit, disbursement, and accounting under
this subpart or otherwise interfere with, hinder, or delay NMFS or it
agents in the course of their activities under this subpart;
(14) Make false statements to NMFS, any of the NMFS' employees, or
any of NMFS' agents about any of the matters in this subpart;
(15) Obstruct, prevent, or unreasonably delay or attempt to
obstruct, prevent, or unreasonably delay any audit or investigation NMFS
or its agents conduct, or attempt to conduct, in connection with any of
the matters in this subpart; and/or
(16) Otherwise materially interfere with the efficient and effective
conduct of reduction and the repayment of reduction loans under this
subpart.
(b) Any party who violates one or more of the prohibitions of
paragraph (a) of this section is subject to the full range of penalties
the Magnuson-Stevens Act and 15 CFR part 904 provide-- including, but
not limited to: civil penalties, sanctions, forfeitures, and punishment
for criminal offenses--and to the full penalties and punishments
otherwise provided by any other applicable law of the United States.
(c) Additionally, NMFS may take any and all appropriate actions,
including the communication of action at law, against each party
responsible for the non-payment, non-collection, non-deposit, and/or
non-disbursement in accordance with Sec. 600.1013 and/or Sec. 600.1014
to enforce the United States' receipt from such party of any fee--
including penalties and all costs of collection--due and owing the
United States on account of the reduction loan that such party should
have, but did not, pay, collect, deposit, and/or disburse in accordance
with Sec. 600.1013 and/or Sec. 600.1014. All such reduction loan
recoveries shall be applied to reduce the unpaid balances of reduction
loans.
Sec. 600.1018 Implementation regulations for each program. [Reserved]
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC--Table of Contents
Subpart A--General Provisions
Sec.
622.1 Purpose and scope.
622.2 Definitions and acronyms.
622.3 Relation to other laws and regulations.
622.4 Permits and fees.
622.5 Recordkeeping and reporting.
622.6 Vessel and gear identification.
622.7 Prohibitions.
622.8 At-sea observer coverage.
Subpart B--Effort Limitations
622.15 Wreckfish individual transferable quota (ITQ) system.
622.16 Red snapper individual transferable quota (ITQ) system.
622.17 South Atlantic golden crab controlled access.
622.18 South Atlantic snapper-grouper limited access.
Subpart C--Management Measures
622.30 Fishing years.
622.31 Prohibited gear and methods.
622.32 Prohibited and limited-harvest species.
622.33 Caribbean EEZ seasonal and/or area closures.
622.34 Gulf EEZ seasonal and/or area closures.
622.35 South Atlantic EEZ seasonal and/or area closures.
622.36 Seasonal harvest limitations.
622.37 Size limits.
622.38 Landing fish intact.
622.39 Bag and possession limits.
622.40 Limitations on traps and pots.
622.41 Species specific limitations.
622.42 Quotas.
622.43 Closures.
622.44 Commercial trip limits.
622.45 Restrictions on sale/purchase.
622.46 Prevention of gear conflicts.
622.47 Gulf groundfish trawl fishery.
622.48 Adjustment of management measures.
Appendix A to Part 622--Species Tables
Appendix B to Part 622--Gulf Areas
[[Page 131]]
Appendix C to Part 622--Fish Length Measurements
Appendix D to Part 622--Specifications for Certified BRDs
Authority: 16 U.S.C. 1801 et seq.
Source: 61 FR 34934, July 3, 1996, unless otherwise noted.
Subpart A--General Provisions
Sec. 622.1 Purpose and scope.
(a) The purpose of this part is to implement the FMPs prepared under
the Magnuson Act by the CFMC, GMFMC, and/or SAFMC listed in Table 1 of
this section.
(b) This part governs conservation and management of species
included in the FMPs in or from the Caribbean, Gulf, Mid-Atlantic, or
South Atlantic EEZ, as indicated in Table 1 of this section. For the
FMPs noted in the following table, conservation and management extends
to adjoining state waters for the purposes of data collection and
monitoring.
Table 1.--FMPs Implemented Under Part 622
----------------------------------------------------------------------------------------------------------------
Responsible fishery management
FMP title council(s) Geographical area
----------------------------------------------------------------------------------------------------------------
Atlantic Coast Red Drum FMP SAFMC Mid-Atlantic and South
Atlantic.
FMP for Coastal Migratory Pelagic GMFMC/SAFMC Gulf,\1\ Mid-Atlantic 1, 2 and
Resources. South Atlantic.1, 3
FMP for Coral and Coral Reefs of the GMFMC Gulf.
Gulf of Mexico.
FMP for Coral, Coral Reefs, and Live/ SAFMC South Atlantic.
Hard Bottom Habitats of the South
Atlantic Region.
FMP for Corals and Reef Associated CFMC Caribbean.
Plants and Invertebrates of Puerto
Rico and the U.S. Virgin Islands.
FMP for the Golden Crab Fishery of the SAFMC South Atlantic
South Atlantic Region.
FMP for Queen Conch Resources of CFMC Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for the Red Drum Fishery of the GMFMC Gulf.1
Gulf of Mexico.
FMP for the Reef Fish Fishery of CFMC Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for the Reef Fish Resources of the GMFMC Gulf.1
Gulf of Mexico.
FMP for the Shrimp Fishery of the Gulf GMFMC Gulf.1
of Mexico.
FMP for the Shrimp Fishery of the SAFMC South Atlantic.
South Atlantic Region.
FMP for the Snapper-Grouper Fishery of SAFMC South Atlantic.1, 4
the South Atlantic Region.
FMP for the Spiny Lobster Fishery of CFMC Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
----------------------------------------------------------------------------------------------------------------
\1\ Regulated area includes adjoining state waters for purposes of data collection and quota monitoring.
\2\ Only king and Spanish mackerel and cobia are managed under the FMP in the Mid-Atlantic.
\3\ Bluefish are not managed under the FMP in the South Atlantic.
\4\ Bank, rock, and black sea bass and scup are not managed by the FMP or regulated by this part north of 35
deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 65483, Dec. 13, 1996; 63 FR 10565, Mar. 4, 1998]
Sec. 622.2 Definitions and acronyms.
In addition to the definitions in the Magnuson Act and in
Sec. 600.10 of this chapter, and the acronyms in Sec. 600.15 of this
chapter, the terms and acronyms used in this part have the following
meanings:
Allowable chemical means a substance, generally used to immobilize
marine life so that it can be captured alive, that, when introduced into
the water, does not take Gulf and South Atlantic prohibited coral and is
allowed by Florida for the harvest of tropical fish (e.g., quinaldine,
quinaldine compounds, or similar substances).
Allowable octocoral means an erect, nonencrusting species of the
subclass Octocorallia, except the seafans Gorgonia flabellum and G.
ventalina, plus the attached substrate within 1 inch (2.54 cm) of an
allowable octocoral.
[[Page 132]]
Note: An erect, nonencrusting species of the subclass Octocorallia,
except the seafans Gorgonia flabellum and G. ventalina, with attached
substrate exceeding 1 inch (2.54 cm) is considered to be live rock and
not allowable octocoral.
Aquacultured live rock means live rock that is harvested under a
Federal aquacultured live rock permit, as required under
Sec. 622.4(a)(3)(iii).
Authorized statistical reporting agent means:
(1) Any person so designated by the SRD; or
(2) Any person so designated by the head of any Federal or State
agency that has entered into an agreement with the Assistant
Administrator to collect fishery data.
Automatic reel means a reel that remains attached to a vessel when
in use from which a line and attached hook(s) are deployed. The line is
payed out from and retrieved on the reel electrically or hydraulically.
Bandit gear means a rod and reel that remain attached to a vessel
when in use from which a line and attached hook(s) are deployed. The
line is payed out from and retrieved on the reel manually, electrically,
or hydraulically.
BRD means bycatch reduction device.
Buoy gear means fishing gear consisting of a float and one or more
weighted lines suspended therefrom, generally long enough to reach the
bottom. A hook or hooks (usually 6 to 10) are on the lines at or near
the end. The float and line(s) drift freely and are retrieved
periodically to remove catch and rebait hooks.
Carapace length means the straight-line distance from the orbital
notch inside the orbital spine, in a line parallel to the lateral
rostral sulcus, to the posterior margin of the cephalothorax. (See
Figure 1 in Appendix C of this part.)
Caribbean means the Caribbean Sea around Puerto Rico and the U.S.
Virgin Islands.
Caribbean conch resource means one or more of the following species,
or a part thereof:
(1) Atlantic triton's trumpet, Charonia variegata.
(2) Cameo helmet, Cassis madagascarensis.
(3) Caribbean helmet, Cassis tuberosa.
(4) Caribbean vase, Vasum muricatum.
(5) Flame helmet, Cassis flammea.
(6) Green star shell, Astrea tuber.
(7) Hawkwing conch, Strombus raninus.
(8) Milk conch, Strombus costatus.
(9) Queen conch, Strombus gigus.
(10) Roostertail conch, Strombus gallus.
(11) True tulip, Fasciolaria tulipa.
(12) West Indian fighting conch, Strombus pugilis.
(13) Whelk (West Indian top shell), Cittarium pica.
Caribbean coral reef resource means one or more of the species, or a
part thereof, listed in Table 1 in Appendix A of this part, whether
living or dead.
Caribbean prohibited coral means, in the Caribbean; a gorgonian,
that is, a Caribbean coral reef resource of the Class Anthozoa, Subclass
Octocorallia, Order Gorgonacea; a live rock; or a stony coral, that is,
a Caribbean coral reef resource of the Class Hydrozoa (fire corals and
hydrocorals) or of the Class Anthozoa, Subclass Hexacorallia, Orders
Scleractinia (stony corals) and Antipatharia (black corals); or a part
thereof.
Caribbean reef fish means one or more of the species, or a part
thereof, listed in Table 2 in Appendix A of this part.
Caribbean spiny lobster means the species Panulirus argus, or a part
thereof.
CFMC means the Caribbean Fishery Management Council.
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that meets the requirements of the USCG to carry six or fewer passengers
for hire and that engages in charter fishing at any time during the
calendar year. A charter vessel with a commercial permit, as required
under Sec. 622.4(a)(2), is considered to be operating as a charter
vessel when it carries a passenger who pays a fee or when there are more
than three persons aboard, including operator and crew.
Coastal migratory pelagic fish means one or more of the following
species, or a part thereof:
(1) Bluefish, Pomatomus saltatrix (Gulf of Mexico only).
(2) Cero, Scomberomorus regalis.
(3) Cobia, Rachycentron canadum.
(4) Dolphin, Coryphaena hippurus
[[Page 133]]
(5) King mackerel, Scomberomorus cavalla.
(6) Little tunny, Euthynnus alletteratus.
(7) Spanish mackerel, Scomberomorus maculatus.
Coral area means marine habitat in the Gulf or South Atlantic EEZ
where coral growth abounds, including patch reefs, outer bank reefs,
deep water banks, and hard bottoms.
Dealer, in addition to the definition specified in Sec. 600.10 of
this chapter, means the person who first receives rock shrimp harvested
from the EEZ upon transfer ashore.
Drift gillnet, for the purposes of this part, means a gillnet, other
than a long gillnet or a run-around gillnet, that is unattached to the
ocean bottom, regardless of whether attached to a vessel.
Fish trap means--
(1) In the Caribbean EEZ, a trap and its component parts (including
the lines and buoys), regardless of the construction material, used for
or capable of taking finfish.
(2) In the Gulf EEZ, a trap and its component parts (including the
lines and buoys), regardless of the construction material, used for or
capable of taking finfish, except a trap historically used in the
directed fishery for crustaceans (that is, blue crab, stone crab, and
spiny lobster).
(3) In the South Atlantic EEZ, a trap and its component parts
(including the lines and buoys), regardless of the construction
material, used for or capable of taking fish, except a sea bass pot, a
golden crab trap, or a crustacean trap (that is, a type of trap
historically used in the directed fishery for blue crab, stone crab, red
crab, jonah crab, or spiny lobster and that contains at any time not
more than 25 percent, by number, of fish other than blue crab, stone
crab, red crab, jonah crab, and spiny lobster).
Fork length means the straight-line distance from the tip of the
head (snout) to the rear center edge of the tail (caudal fin). (See
Figure 2 in Appendix C of this part.)
Golden crab means the species Chaceon fenneri, or a part thereof.
Golden crab trap means any trap used or possessed in association
with a directed fishery for golden crab in the South Atlantic EEZ,
including any trap that contains a golden crab in or from the South
Atlantic EEZ or any trap on board a vessel that possesses golden crab in
or from the South Atlantic EEZ.
GMFMC means the Gulf of Mexico Fishery Management Council.
Gulf means the Gulf of Mexico. The line of demarcation between the
Atlantic Ocean and the Gulf of Mexico is specified in Sec. 600.105(c) of
this chapter.
Gulf reef fish means one or more of the species, or a part thereof,
listed in Table 3 in Appendix A of this part.
Gulf and South Atlantic prohibited coral means, in the Gulf and
South Atlantic, one or more of the following, or a part thereof:
(1) Coral belonging to the Class Hydrozoa (fire corals and
hydrocorals).
(2) Coral belonging to the Class Anthozoa, Subclass Hexacorallia,
Orders Scleractinia (stony corals) and Antipatharia (black corals).
(3) A seafan, Gorgonia flabellum or G. ventalina.
(4) Coral in a coral reef, except for allowable octocoral.
(5) Coral in an HAPC, including allowable octocoral.
Handline means a line with attached hook(s) that is tended directly
by hand.
HAPC means habitat area of particular concern.
Headboat means a vessel that holds a valid Certificate of Inspection
issued by the USCG to carry passengers for hire. A headboat with a
commercial vessel permit, as required under Sec. 622.4(a)(2), is
considered to be operating as a headboat when it carries a passenger who
pays a fee or--
(1) In the case of persons aboard fishing for or possessing South
Atlantic snapper-grouper, when there are more persons aboard than the
number of crew specified in the vessel's Certificate of Inspection; or
(2) In the case of persons aboard fishing for or possessing coastal
migratory pelagic fish or Gulf reef fish, when there are more than three
persons aboard, including operator and crew.
Headrope length means the distance, measured along the forwardmost
webbing of a trawl net, between the points at which the upper lip (top
edge) of the
[[Page 134]]
mouth of the net are attached to sleds, doors, or other devices that
spread the net.
Hook-and-line gear means automatic reel, bandit gear, buoy gear,
handline, longline, and rod and reel.
Live rock means living marine organisms, or an assemblage thereof,
attached to a hard substrate, including dead coral or rock (excluding
individual mollusk shells).
Long gillnet means a gillnet that has a float line that is more than
1,000 yd (914 m) in length.
Longline means a line that is deployed horizontally to which
gangions and hooks are attached. A longline may be a bottom longline,
i.e., designed for use on the bottom, or a pelagic longline, i.e.,
designed for use off the bottom. The longline hauler may be manually,
electrically, or hydraulically operated.
MAFMC means the Mid-Atlantic Fishery Management Council.
Mid-Atlantic means the Atlantic Ocean off the Atlantic coastal
states from the boundary between the New England Fishery Management
Council and the MAFMC, as specified in Sec. 600.105(a) of this chapter,
to the boundary between the MAFMC and the SAFMC, as specified in
Sec. 600.105(b) of this chapter.
Migratory group, for king and Spanish mackerel, means a group of
fish that may or may not be a separate genetic stock, but that is
treated as a separate stock for management purposes. King and Spanish
mackerel are divided into migratory groups--the Atlantic migratory group
and the Gulf migratory group. The boundaries between these groups are as
follows:
(1) King mackerel--(i) Summer separation. From April 1 through
October 31, the boundary separating the Gulf and Atlantic migratory
groups of king mackerel is 25 deg.48' N. lat., which is a line directly
west from the Monroe/Collier County, FL, boundary to the outer limit of
the EEZ.
(ii) Winter separation. From November 1 through March 31, the
boundary separating the Gulf and Atlantic migratory groups of king
mackerel is 29 deg.25' N. lat., which is a line directly east from the
Volusia/Flagler County, FL, boundary to the outer limit of the EEZ.
(2) Spanish mackerel. The boundary separating the Gulf and Atlantic
migratory groups of Spanish mackerel is 25 deg.20.4' N. lat., which is a
line directly east from the Miami-Dade/Monroe County, FL, boundary to
the outer limit of the EEZ.
Off Florida means the waters in the Gulf and South Atlantic from
30 deg.42'45.6" N. lat., which is a line directly east from the seaward
terminus of the Georgia/Florida boundary, to 87 deg.31'06" W. long.,
which is a line directly south from the Alabama/Florida boundary.
Off Georgia means the waters in the South Atlantic from a line
extending in a direction of 104 deg. from true north from the seaward
terminus of the South Carolina/Georgia boundary to 30 deg.42'45.6" N.
lat., which is a line directly east from the seaward terminus of the
Georgia/Florida boundary.
Official sunrise or official sunset means the time of sunrise or
sunset as determined for the date and location in The Nautical Almanac,
prepared by the U.S. Naval Observatory.
Off Louisiana, Mississippi, and Alabama means the waters in the Gulf
other than off Florida and off Texas.
Off North Carolina means the waters in the South Atlantic from
36 deg.34'55" N. lat., which is a line directly east from the Virginia/
North Carolina boundary, to a line extending in a direction of
135 deg.34'55" from true north from the North Carolina/South Carolina
boundary, as marked by the border station on Bird Island at
33 deg.51'07.9" N. lat., 78 deg.32'32.6" W. long.
Off South Carolina means the waters in the South Atlantic from a
line extending in a direction of 135 deg.34'55" from true north from the
North Carolina/South Carolina boundary, as marked by the border station
on Bird Island at 33 deg.51'07.9" N. lat., 78'32'32.6" W. long., to a
line extending in a direction of 104 deg. from true north from the
seaward terminus of the South Carolina/Georgia boundary.
Off Texas means the waters in the Gulf west of a rhumb line from
29 deg.32.1' N. lat., 93 deg.47.7' W. long. to 26 deg.11.4' N. lat.,
92 deg.53' W. long., which line is an extension of the boundary between
Louisiana and Texas.
[[Page 135]]
Penaeid shrimp trawler means any vessel that is equipped with one or
more trawl nets whose on-board or landed catch of brown, pink, or white
shrimp (penaeid shrimp) is more than 1 percent, by weight, of all fish
comprising its on-board or landed catch.
Powerhead means any device with an explosive charge, usually
attached to a speargun, spear, pole, or stick, that fires a projectile
upon contact.
Processor means a person who processes fish or fish products, or
parts thereof, for commercial use or consumption.
Purchase means the act or activity of buying, trading, or bartering,
or attempting to buy, trade, or barter.
Red drum, also called redfish, means Sciaenops ocellatus, or a part
thereof.
Red snapper means Lutjanus campechanus, or a part thereof, one of
the Gulf reef fish species.
Regional Administrator (RA), for the purposes of this part, means
the Administrator, Southeast Region, NMFS, 9721 Executive Center Drive
N., St. Petersburg, FL 33702, or a designee.
Rod and reel means a rod and reel unit that is not attached to a
vessel, or, if attached, is readily removable, from which a line and
attached hook(s) are deployed. The line is payed out from and retrieved
on the reel manually, electrically, or hydraulically.
Run-around gillnet means a gillnet, other than a long gillnet,
that, when used, encloses an area of water.
SAFMC means the South Atlantic Fishery Management Council.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
Science and Research Director (SRD), for the purposes of this part,
means the Science and Research Director, Southeast Fisheries Science
Center, NMFS (see Table 1 of Sec. 600.502 of this chapter).
Sea bass pot means a trap has six rectangular sides and does not
exceed 25 inches (63.5 cm) in height, width, or depth.
Shrimp means one or more of the following species, or a part
thereof:
(1) Brown shrimp, Penaeus aztecus.
(2) Pink shrimp, Penaeus duorarum.
(3) Rock shrimp, Sicyonia brevirostris.
(4) Royal red shrimp, Pleoticus robustus.
(5) Seabob shrimp, Xiphopenaeus kroyeri.
(6) White shrimp, Penaeus setiferus.
Shrimp trawler means any vessel that is equipped with one or more
trawl nets whose on-board or landed catch of shrimp is more than 1
percent, by weight, of all fish comprising its on-board or landed catch.
SMZ means special management zone.
South Atlantic means the Atlantic Ocean off the Atlantic coastal
states from the boundary between the MAFMC and the SAFMC, as specified
in Sec. 600.105(b) of this chapter, to the line of demarcation between
the Atlantic Ocean and the Gulf of Mexico, as specified in
Sec. 600.105(c) of this chapter.
South Atlantic snapper-grouper means one or more of the species, or
a part thereof, listed in Table 4 in Appendix A of this part.
Stab net means a gillnet, other than a long gillnet, or trammel net
whose weight line sinks to the bottom and submerges the float line.
Total length (TL), for the purposes of this part, means the
straight-line distance from the tip of the snout to the tip of the tail
(caudal fin), excluding any caudal filament, while the fish is lying on
its side. The mouth of the fish may be closed and/or the tail may be
squeezed together to give the greatest overall measurement. (See Figure
2 in Appendix C of this part.)
Toxic chemical means any substance, other than an allowable
chemical, that, when introduced into the water, can stun, immobilize, or
take marine life.
Trammel net means two or more panels of netting, suspended
vertically in the water by a common float line and a common weight line,
with one panel having a larger mesh size than the other(s), to entrap
fish in a pocket of netting.
Trip means a fishing trip, regardless of number of days duration,
that begins with departure from a dock, berth, beach, seawall, or ramp
and that terminates with return to a dock, berth, beach, seawall, or
ramp.
Try net, also called test net, means a net pulled for brief periods
by a shrimp
[[Page 136]]
trawler to test for shrimp concentrations or determine fishing
conditions (e.g., presence or absence of bottom debris, jellyfish,
bycatch, seagrasses).
Wild live rock means live rock other than aquacultured live rock.
Wreckfish means the species Polyprion americanus, or a part thereof,
one of the South Atlantic snapper-grouper species.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 47448, Sept. 9, 1996; 61 FR 65483, Dec. 13, 1996; 62 FR 18539, Apr.
16, 1997; 63 FR 10565, Mar. 4, 1998; 63 FR 18144, Apr. 14, 1998; 64 FR
59125, Nov. 2, 1999; 65 FR 52957, Aug. 31, 2000]
Effective Date Note: At 65 FR 52957, Aug. 31, 2000, Sec. 622.2 was
amended in the definition of Migratory Group by removing ``Dade'' and
adding in its place ``Miami-Dade'', effective Oct. 2, 2000.
Sec. 622.3 Relation to other laws and regulations.
(a) The relation of this part to other laws is set forth in
Sec. 600.705 of this chapter and paragraphs (b) and (c) of this section.
(b) Except for regulations on allowable octocoral, Gulf and South
Atlantic prohibited coral, and live rock, this part is intended to apply
within the EEZ portions of applicable National Marine Sanctuaries and
National Parks, unless the regulations governing such Sanctuaries or
Parks prohibit their application. Regulations on allowable octocoral,
Gulf and South Atlantic prohibited coral, and live rock do not apply
within the EEZ portions of the following National Marine Sanctuaries and
National Parks:
(1) Everglades National Park (36 CFR 7.45).
(2) Looe Key National Marine Sanctuary (15 CFR part 937).
(3) Fort Jefferson National Monument (36 CFR 7.27).
(4) Key Largo Coral Reef National Marine Sanctuary (15 CFR part
929).
(5) Biscayne National Park (16 U.S.C. 410gg).
(6) Gray's Reef National Marine Sanctuary (15 CFR Part 938).
(7) Monitor Marine Sanctuary (15 CFR part 924).
(c) For allowable octocoral, if a state has a catch, landing, or
gear regulation that is more restrictive than a catch, landing, or gear
regulation in this part, a person landing in such state allowable
octocoral taken from the Gulf or South Atlantic EEZ must comply with the
more restrictive state regulation.
(d) General provisions on facilitation of enforcement, penalties,
and enforcement policy applicable to all domestic fisheries are set
forth in Secs. 600.730, 600.735, and 600.740 of this chapter,
respectively.
(e) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing, or exempted educational activity, as specified in Sec. 600.745
of this chapter.
Sec. 622.4 Permits and fees.
(a) Permits required. To conduct activities in fisheries governed in
this part, valid permits, licenses, and endorsements are required as
follows:
(1) Charter vessel/headboat permits. For a person aboard a vessel
that is operating as a charter vessel or headboat to fish for or possess
coastal migratory pelagic fish, Gulf reef fish, or South Atlantic
snapper-grouper in or from the EEZ, a charter vessel/headboat permit for
coastal migratory pelagic fish, Gulf reef fish, or South Atlantic
snapper-grouper, respectively, must have been issued to the vessel and
must be on board. A charter vessel or headboat may have both a charter
vessel/headboat permit and a commercial vessel permit. However, when a
vessel is operating as a charter vessel or headboat, a person aboard
must adhere to the bag limits.
(2) Commercial vessel permits, licenses, and endorsements--(i) Fish
traps in the Gulf. For a person to possess or use a fish trap in the EEZ
in the Gulf of Mexico, a commercial vessel permit for Gulf reef fish
with a fish trap endorsement must have been issued to the vessel and
must be on board. See paragraph (n) of this section regarding fish trap
endorsements.
(ii) Gillnets for king mackerel in the southern Florida west coast
subzone. For a person aboard a vessel to use a run-around gillnet for
king mackerel in the southern Florida west coast subzone (see
Sec. 622.42(c)(1)(i)(A)(3)), a commercial vessel permit for king
mackerel with a gillnet endorsement must have been issued to the vessel
and must be on
[[Page 137]]
board. See paragraph (o) of this section regarding a moratorium on
endorsements for the use of gillnets for king mackerel in the southern
Florida west coast subzone and restrictions on transferability of king
mackerel gillnet endorsements.
(iii) King mackerel. For a person aboard a vessel to be eligible for
exemption from the bag limits and to fish under a quota for king
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a
commercial vessel permit for king mackerel must have been issued to the
vessel and must be on board. To obtain or renew a commercial vessel
permit for king mackerel, at least 25 percent of the applicant's earned
income, or at least $10,000, must have been derived from commercial
fishing (i.e., harvest and first sale of fish) or from charter fishing
during one of the 3 calendar years preceding the application. See
paragraph (q) of this section regarding a moratorium on commercial
vessel permits for king mackerel, transfers of permits during the
moratorium, and limited exceptions to the earned income or gross sales
requirement for a permit.
(iv) Spanish mackerel. For a person aboard a vessel to be eligible
for exemption from the bag limits and to fish under a quota for Spanish
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a
commercial vessel permit for Spanish mackerel must have been issued to
the vessel and must be on board. To obtain or renew a commercial vessel
permit for Spanish mackerel, at least 25 percent of the applicant's
earned income, or at least $10,000, must have been derived from
commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during one of the 3 calendar years preceding the
application.
(v) Gulf reef fish. For a person aboard a vessel to be eligible for
exemption from the bag limits, to fish under a quota, or to sell Gulf
reef fish in or from the Gulf EEZ, a commercial vessel permit for Gulf
reef fish must have been issued to the vessel and must be on board. To
obtain or renew a commercial vessel permit for Gulf reef fish, more than
50 percent of the applicant's earned income must have been derived from
commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during either of the 2 calendar years preceding the
application. See paragraph (m) of this section regarding a moratorium on
commercial vessel permits for Gulf reef fish and limited exceptions to
the earned income requirement for a permit.
(vi) South Atlantic snapper-grouper. For a person aboard a vessel to
be eligible for exemption from the bag limits for South Atlantic
snapper-grouper in or from the South Atlantic EEZ, to engage in the
directed fishery for tilefish in the South Atlantic EEZ, to use a
longline to fish for South Atlantic snapper-grouper in the South
Atlantic EEZ, or to use a sea bass pot in the South Atlantic EEZ between
35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC) and
28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly Building,
Cape Canaveral, FL), a commercial vessel permit for South Atlantic
snapper-grouper must have been issued to the vessel and must be on
board. A vessel with longline gear and more than 200 lb (90.7 kg) of
tilefish on board is considered to be in the directed fishery for
tilefish. It is a rebuttable presumption that a fishing vessel with more
than 200 lb (90.7 kg) of tilefish on board harvested such tilefish in
the EEZ. See Sec. 622.18 for limitations on the use, transfer, and
renewal of a commercial vessel permit for South Atlantic snapper-
grouper.
(vii) Wreckfish. For a person aboard a vessel to fish for wreckfish
in the South Atlantic EEZ, possess wreckfish in or from the South
Atlantic EEZ, offload wreckfish from the South Atlantic EEZ, or sell
wreckfish in or from the South Atlantic EEZ, a commercial vessel permit
for wreckfish must have been issued to the vessel and must be on board.
To obtain a commercial vessel permit for wreckfish, the applicant must
be a wreckfish shareholder; and either the shareholder must be the
vessel owner or the owner or operator must be an employee, contractor,
or agent of the shareholder. (See Sec. 622.15 for information on
wreckfish shareholders.)
(viii) South Atlantic rock shrimp. For a person aboard a vessel to
fish for rock shrimp in the South Atlantic EEZ or possess rock shrimp in
or from the
[[Page 138]]
South Atlantic EEZ, a commercial vessel permit for rock shrimp must be
issued to the vessel and must be on board.
(ix) Gulf red snapper. For a person aboard a vessel for which a
commercial vessel permit for Gulf reef fish has been issued to retain
red snapper under the trip limits specified in Sec. 622.44(d)(1) or (2),
a Class 1 or Class 2 Gulf red snapper license must have been issued to
the vessel and must be on board. See paragraph (p) of this section
regarding initial issue of red snapper licenses.
(x) South Atlantic golden crab. For a person aboard a vessel to fish
for golden crab in the South Atlantic EEZ, possess golden crab in or
from the South Atlantic EEZ, off-load golden crab from the South
Atlantic EEZ, or sell golden crab in or from the South Atlantic EEZ, a
commercial vessel permit for golden crab must be issued to the vessel
and must be on board. It is a rebuttable presumption that a golden crab
on board a vessel in the South Atlantic or off-loaded from a vessel in a
port adjoining the South Atlantic was harvested from the South Atlantic
EEZ. See Sec. 622.17 for limitations on the use, transfer, and renewal
of a commercial vessel permit for golden crab.
(3) Coral permits--(i) Allowable chemical. For an individual to take
or possess fish or other marine organisms with an allowable chemical in
a coral area, other than fish or other marine organisms that are landed
in Florida, a Federal allowable chemical permit must have been issued to
the individual. Such permit must be available when the permitted
activity is being conducted and when such fish or other marine organisms
are possessed, through landing ashore.
(ii) Allowable octocoral. For an individual to take or possess
allowable octocoral in the Gulf or South Atlantic EEZ, other than
allowable octocoral that is landed in Florida, a Federal allowable
octocoral permit must have been issued to the individual. Such permit
must be available for inspection when the permitted activity is being
conducted and when allowable octocoral is possessed, through landing
ashore.
(iii) Aquacultured live rock. For a person to take or possess
aquacultured live rock in the Gulf or South Atlantic EEZ, a Federal
aquacultured live rock permit must have been issued for the specific
harvest site. Such permit, or a copy, must be on board a vessel
depositing or possessing material on an aquacultured live rock site or
harvesting or possessing live rock from an aquacultured live rock site.
(iv) Prohibited coral. A Federal permit may be issued to take or
possess Gulf and South Atlantic prohibited coral or Caribbean prohibited
coral only as scientific research activity, exempted fishing, or
exempted educational activity. See Sec. 600.745 of this chapter for the
procedures and limitations for such activities and fishing.
(v) Florida permits. Appropriate Florida permits and endorsements
are required for the following activities, without regard to whether
they involve activities in the EEZ or Florida's waters:
(A) Landing in Florida fish or other marine organisms taken with an
allowable chemical in a coral area.
(B) Landing allowable octocoral in Florida.
(C) Landing live rock in Florida.
(4) Dealer permits. For a dealer to receive Gulf reef fish, golden
crab harvested from the South Atlantic EEZ, South Atlantic snapper-
grouper, rock shrimp harvested from the South Atlantic EEZ, or
wreckfish, a dealer permit for Gulf reef fish, golden crab, South
Atlantic snapper-grouper, rock shrimp, or wreckfish, respectively, must
be issued to the dealer. To obtain a dealer permit, the applicant must
have a valid state wholesaler's license in the state(s) where the dealer
operates, if required by such state(s), and must have a physical
facility at a fixed location in such state(s).
(b) Applications for permits. Application forms for all permits are
available from the RA. Completed application forms and all required
supporting documents must be submitted to the RA at least 30 days prior
to the date on which the applicant desires to have the permit made
effective. All vessel permits are mailed to owners, whether the
applicant is an owner or an operator.
(1) Coral permits. (i) The applicant for a coral permit must be the
individual who will be conducting the activity
[[Page 139]]
that requires the permit. In the case of a corporation or partnership
that will be conducting live rock aquaculture activity, the applicant
must be the principal shareholder or a general partner.
(ii) An applicant must provide the following:
(A) Name, address, telephone number, and other identifying
information of the applicant.
(B) Name and address of any affiliated company, institution, or
organization.
(C) Information concerning vessels, harvesting gear/methods, or
fishing areas, as specified on the application form.
(D) Any other information that may be necessary for the issuance or
administration of the permit.
(E) If applying for an aquacultured live rock permit, identification
of each vessel that will be depositing material on or harvesting
aquacultured live rock from the proposed aquacultured live rock site,
specification of the port of landing of aquacultured live rock, and a
site evaluation report prepared pursuant to generally accepted industry
standards that--
(1) Provides accurate coordinates of the proposed harvesting site so
that it can be located using LORAN or Global Positioning System
equipment;
(2) Shows the site on a chart in sufficient detail to determine its
size and allow for site inspection;
(3) Discusses possible hazards to safe navigation or hindrance to
vessel traffic, traditional fishing operations, or other public access
that may result from aquacultured live rock at the site;
(4) Describes the naturally occurring bottom habitat at the site;
and
(5) Specifies the type and origin of material to be deposited on the
site and how it will be distinguishable from the naturally occurring
substrate.
(2) Dealer permits. (i) The application for a dealer permit must be
submitted by the owner (in the case of a corporation, an officer or
shareholder; in the case of a partnership, a general partner).
(ii) An applicant must provide the following:
(A) A copy of each state wholesaler's license held by the dealer.
(B) Name, address, telephone number, date the business was formed,
and other identifying information of the business.
(C) The address of each physical facility at a fixed location where
the business receives fish.
(D) Name, address, telephone number, other identifying information,
and official capacity in the business of the applicant.
(E) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(3) Vessel permits. (i) The application for a commercial vessel
permit, other than for wreckfish, or for a charter vessel/headboat
permit must be submitted by the owner (in the case of a corporation, an
officer or shareholder; in the case of a partnership, a general partner)
or operator of the vessel. A commercial vessel permit that is issued
based on the earned income qualification of an operator is valid only
when that person is the operator of the vessel. The applicant for a
commercial vessel permit for wreckfish must be a wreckfish shareholder.
(ii) An applicant must provide the following:
(A) A copy of the vessel's valid USCG certificate of documentation
or, if not documented, a copy of its valid state registration
certificate.
(B) Vessel name and official number.
(C) Name, address, telephone number, and other identifying
information of the vessel owner and of the applicant, if other than the
owner.
(D) Any other information concerning the vessel, gear
characteristics, principal fisheries engaged in, or fishing areas, as
specified on the application form.
(E) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(F) If applying for a commercial vessel permit, documentation, as
specified in the instructions accompanying each application form,
showing that applicable eligibility requirements of paragraph (a)(2) of
this section have been met.
(G) If a fish trap or sea bass pot will be used, the number,
dimensions, and
[[Page 140]]
estimated cubic volume of the traps/pots that will be used and the
applicant's desired color code for use in identifying his or her vessel
and buoys (white is not an acceptable color code).
(c) Change in application information. The owner or operator of a
vessel with a permit, a person with a coral permit, or a dealer with a
permit must notify the RA within 30 days after any change in the
application information specified in paragraph (b) of this section. The
permit is void if any change in the information is not reported within
30 days.
(d) Fees. A fee is charged for each application for a permit,
license, or endorsement submitted under this section, for each request
for transfer or replacement of such permit, license, or endorsement, and
for each fish trap or sea bass pot identification tag required under
Sec. 622.6(b)(1)(i)(B). The amount of each fee is calculated in
accordance with the procedures of the NOAA Finance Handbook, available
from the RA, for determining the administrative costs of each special
product or service. The fee may not exceed such costs and is specified
with each application form. The appropriate fee must accompany each
application, request for transfer or replacement, or request for fish
trap/sea bass pot identification tags.
(e) Initial issuance. (1) The RA will issue an initial permit at any
time to an applicant if the application is complete and the specific
requirements for the requested permit have been met. An application is
complete when all requested forms, information, and documentation have
been received.
(2) Upon receipt of an incomplete application, the RA will notify
the applicant of the deficiency. If the applicant fails to correct the
deficiency within 30 days of the date of the RA's letter of
notification, the application will be considered abandoned.
(f) Duration. A permit remains valid for the period specified on it
unless it is revoked, suspended, or modified pursuant to subpart D of 15
CFR part 904 or the vessel or dealership is sold.
(g) Transfer. A vessel permit, license, or endorsement or dealer
permit issued under this section is not transferable or assignable,
except as provided in paragraph (m) of this section for a commercial
vessel permit for Gulf reef fish, in paragraph (n) of this section for a
fish trap endorsement, in paragraph (o) of this section for a Gulf king
mackerel gillnet endorsement, in paragraph (p) of this section for a red
snapper license, in paragraph (q) of this section for a king mackerel
permit, in Sec. 622.17(c) for a commercial vessel permit for golden
crab, or in Sec. 622.18(e) for a commercial vessel permit for South
Atlantic snapper-grouper. A person who acquires a vessel or dealership
who desires to conduct activities for which a permit or endorsement is
required must apply for a permit or endorsement in accordance with the
provisions of this section. If the acquired vessel or dealership is
currently permitted, the application must be accompanied by the original
permit and a copy of a signed bill of sale or equivalent acquisition
papers.
(h) Renewal. Although a permit required by this section is issued on
an annual basis, an application for permit renewal is required only
every 2 years. In the interim years, a permit is renewed automatically
(without application) for a vessel owner or dealer who has met the
specific requirements for the requested permit, who has submitted all
reports required under the Magnuson Act, and who is not subject to a
permit sanction or denial under paragraph (j) of this section. An owner
or dealer whose permit is expiring will be mailed a notification by the
RA approximately 2 months prior to expiration of the current permit.
That notification will advise the status of the renewal of the permit.
That is, the notification will advise that the renewed permit will be
issued without further action by the owner or dealer, that the permit is
not eligible for automatic renewal, or that a new application is
required. A notification that a permit is not eligible for automatic
renewal will specify the reasons and will provide an opportunity for
correction of any deficiencies. A notification that a new application is
required will include a preprinted renewal application. An automatically
renewed permit will be mailed by the RA approximately 1 month prior to
expiration of the old permit. A vessel owner or dealer who
[[Page 141]]
does not receive a notification of status of renewal of a permit by 45
days prior to expiration of the current permit must contact the RA.
(i) Display. A vessel permit, license, or endorsement issued under
this section must be carried on board the vessel. A dealer permit issued
under this section, or a copy thereof, must be available on the dealer's
premises. In addition, a copy of the dealer's permit must accompany each
vehicle that is used to pick up from a fishing vessel reef fish
harvested from the Gulf EEZ. The operator of a vessel must present the
permit, license, or endorsement for inspection upon the request of an
authorized officer. A dealer or a vehicle operator must present the
permit or a copy for inspection upon the request of an authorized
officer.
(j) Sanctions and denials. A permit, license, or endorsement issued
pursuant to this section may be revoked, suspended, or modified, and a
permit, license, or endorsement 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.
(k) Alteration. A permit, license, or endorsement that is altered,
erased, or mutilated is invalid.
(l) Replacement. A replacement permit, license, or endorsement may
be issued. An application for a replacement permit, license, or
endorsement is not considered a new application.
(m) Moratorium on commercial vessel permits for Gulf reef fish. The
provisions of this paragraph (m) are applicable through December 31,
2005.
(1) No applications for additional commercial vessel permits for
Gulf reef fish will be accepted. Existing vessel permits may be renewed,
are subject to the restrictions on transfer or change in paragraphs
(m)(2) through (5) of this section, and are subject to the requirement
for timely renewal in paragraph (m)(6) of this section.
(2) An owner of a permitted vessel may transfer the commercial
vessel permit for Gulf reef fish to another vessel owned by the same
entity.
(3) An owner whose earned income qualified for the commercial vessel
permit for Gulf reef fish may transfer the permit to the owner of
another vessel, or to the new owner when he or she transfers ownership
of the permitted vessel. Such owner of another vessel, or new owner, may
receive a commercial vessel permit for Gulf reef fish for his or her
vessel, and renew it through April 15 following the first full calendar
year after obtaining it, without meeting the earned income requirement
of paragraph (a)(2)(v) of this section. However, to further renew the
commercial vessel permit, the owner of the other vessel, or new owner,
must meet the earned income requirement not later than the first full
calendar year after the permit transfer takes place.
(4) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may transfer the permit to the income
qualifying operator when such operator becomes an owner of a vessel.
(5) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may have the operator qualification on the
permit removed, and renew it without such qualification through April 15
following the first full calendar year after removing it, without
meeting the earned income requirement of paragraph (a)(2)(v) of this
section. However, to further renew the commercial vessel permit, the
owner must meet the earned income requirement not later than the first
full calendar year after the operator qualification is removed. To have
an operator qualification removed from a permit, the owner must return
the original permit to the RA with an application for the changed
permit.
(6) A commercial vessel permit for Gulf reef fish that is not
renewed or that is revoked will not be reissued. A permit is considered
to be not renewed when an application for renewal is not received by the
RA within 1 year of the expiration date of the permit.
(n) Endorsements for fish traps in the Gulf. The provisions of this
paragraph (n) are applicable through February 7, 2007. After February 7,
2007, no fish trap endorsements are valid.
[[Page 142]]
(1) Only those fish trap endorsements that are valid on February 7,
1997, may be renewed. Such endorsements are subject to the restrictions
on transfer in paragraphs (n)(2) and (3) of this section and are subject
to the requirement for timely renewal in paragraph (n)(5) of this
section.
(2) Through February 7, 1999, a fish trap endorsement may be
transferred only to a vessel that has a commercial permit for reef fish.
(3) After February 7, 1999, a fish trap endorsement is not
transferable except as follows:
(i) An owner of a vessel with a fish trap endorsement may transfer
the endorsement to another vessel owned by the same entity.
(ii) A fish trap endorsement is transferable upon a change of
ownership of a permitted vessel with such endorsement from one to
another of the following: Husband, wife, son, daughter, brother, sister,
mother, or father.
(iii) When a change of ownership of a vessel with a fish trap
endorsement is directly related to the disability or death of the owner,
the RA may issue such endorsement, temporarily or permanently, with the
commercial vessel permit for Gulf reef fish that is issued for the
vessel under the new owner. Such new owner will be the person specified
by the owner or his/her legal guardian, in the case of a disabled owner,
or by the will or executor/administrator of the estate, in the case of a
deceased owner. (Paragraphs (m)(3) and (4) of this section apply for the
transfer of a commercial vessel permit for Gulf reef fish upon
disability or death of an owner.)
(iv) A fish trap endorsement may be transferred to a vessel with a
commercial vessel permit for Gulf reef fish whose owner has a record of
landings of reef fish from fish traps in the Gulf EEZ, as reported on
fishing vessel logbooks received by the SRD, from November 20, 1992,
through February 6, 1994, and who was unable to obtain a fish trap
endorsement for the vessel with the reported landings.
(4) The owner of a vessel that is to receive a transferred
endorsement must return the originals of the endorsed commercial vessel
permit for Gulf reef fish and the unendorsed permit to the RA with an
application for a fish trap endorsement for his or her vessel.
(5) A fish trap endorsement that is not renewed or that is revoked
will not be reissued. Such endorsement is considered to be not renewed
when an application for renewal is not received by the RA within 1 year
of the expiration date of the permit.
(o) Moratorium on endorsements for the use of gillnets for king
mackerel in the southern Florida west coast subzone. (1) An initial king
mackerel gillnet endorsement will be issued only if--
(i) The vessel owner was the owner of a vessel with a commercial
mackerel permit with a gillnet endorsement on or before October 16,
1995; and
(ii) The vessel owner was the owner of a vessel that had gillnet
landings of Gulf migratory group king mackerel in one of the two fishing
years, July 1, 1995, through June 30, 1996, or July 1, 1996, through
June 30, 1997. Such landings must have been documented by NMFS or by the
Florida Department of Environmental Protection trip ticket system as of
December 31, 1997. Only landings when a vessel had a valid commercial
permit for king mackerel with a gillnet endorsement and only landings
that were harvested, landed, and sold in compliance with state and
Federal regulations may be used to establish eligibility.
(2) Paragraphs (o)(1)(i) and (o)(1)(ii) of this section
notwithstanding, the owner of a vessel that received a commercial king
mackerel permit through transfer, between March 4, 1998, and March 28,
2000, from a vessel that met the eligibility requirements in paragraphs
(o)(1)(i) and (o)(1)(ii) also qualifies for an initial king mackerel
gillnet endorsement.
(3) To obtain an initial king mackerel gillnet endorsement under the
moratorium, an owner or operator of a vessel that does not have a king
mackerel gillnet endorsement on March 28, 2000 must submit an
application to the RA, postmarked or hand delivered not later than June
26, 2000. Except for applications for renewals of king mackerel gillnet
endorsements, no applications for king mackerel gillnet endorsements
will be accepted after June 26, 2000. Application forms are available
from the RA.
[[Page 143]]
(4) The RA will not issue an owner more initial king mackerel
gillnet endorsements under the moratorium than the number of vessels
with king mackerel gillnet endorsements that the owner owned
simultaneously on or before October 16, 1995.
(5) An owner of a vessel with a king mackerel gillnet endorsement
issued under this moratorium may transfer that endorsement upon a change
of ownership of a permitted vessel with such endorsement from one to
another of the following: Husband, wife, son, daughter, brother, sister,
mother, or father. Such endorsement also may be transferred to another
vessel owned by the same entity.
(6) A king mackerel gillnet endorsement that is not renewed or that
is revoked will not be reissued. An endorsement is considered to be not
renewed when an application for renewal is not received by the RA within
1 year after the expiration date of the permit that includes the
endorsement.
(p) Gulf red snapper licenses--(1) Class 1 licenses. To be eligible
for the 2,000-lb (907-kg) trip limit for Gulf red snapper specified in
Sec. 622.44(d)(1), a vessel must have been issued both a valid
commercial vessel permit for Gulf reef fish and a valid Class 1 Gulf red
snapper license, and such permit and license must be on board.
(2) Class 2 licenses. To be eligible for the 200-lb (91-kg) trip
limit for Gulf red snapper specified in Sec. 622.44(d)(2), a vessel must
have been issued both a valid commercial vessel permit for Gulf reef
fish and a valid Class 2 Gulf red snapper license, and such permit and
license must be on board.
(3) Operator restriction. An initial Gulf red snapper license that
is issued for a vessel based on the qualification of an operator or
historical captain is valid only when that operator or historical
captain is the operator of the vessel. When applicable, this operator
restriction is shown on the license.
(4) Transfer of Gulf red snapper licenses. A red snapper license may
be transferred independently of a commercial vessel permit for Gulf reef
fish. To request the transfer of a red snapper license, complete the
transfer information on the reverse of the license and return it to the
RA.
(5) Initial issue of Gulf red snapper licenses--(i) Class 1
licenses. (A) An initial Class 1 license will be issued for the vessel
specified by the holder of a valid red snapper endorsement on March 1,
1997, and to a historical captain. In the event of death or disability
of such holder between March 1, 1997, and the date Class 1 licenses are
issued, a Class 1 license will be issued for the vessel specified by the
person to whom the red snapper endorsement was transferred.
(B) Status as a historical captain is based on information collected
under Amendment 9 to the Fishery Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP) (59 FR 39301, August 2, 1994). A
historical captain is an operator who--
(1) From November 6, 1989, through 1993, fished solely under verbal
or written share agreements with an owner, and such agreements provided
for the operator to be responsible for hiring the crew, who was paid
from the share under his or her control;
(2) Landed from that vessel at least 5,000 lb (2,268 kg) of red
snapper per year in 2 of the 3 years 1990, 1991, and 1992;
(3) Derived more than 50 percent of his or her earned income from
commercial fishing, that is, sale of the catch, in each of the years
1989 through 1993; and
(4) Landed red snapper prior to November 7, 1989.
(ii) Class 2 licenses. (A) An initial Class 2 license will be issued
for the vessel specified by an owner or operator whose income qualified
for a commercial vessel permit for reef fish that was valid on March 1,
1997, and such owner or operator was the person whose earned income
qualified for a commercial vessel permit for reef fish that had a
landing of red snapper during the period from January 1, 1990, through
February 28, 1997.
(B) For the purpose of paragraph (p)(5)(ii)(A) of this section,
landings of red snapper are as recorded in the information collected
under Amendment 9 to the FMP (59 FR 39301, August 2, 1994) for the
period 1990 through 1992 and in fishing vessel logbooks, as required
under Sec. 622.5(a)(1)(ii), received by the SRD not later than March 31,
1997,
[[Page 144]]
for the period from January 1, 1993, through February 28, 1997.
(C) A vessel's red snapper landings record during the period from
January 1, 1990, through February 28, 1997, is retained by the owner at
the time of the landings if the vessel's permit was transferred to
another vessel owned by him or her. When a vessel has had a change of
ownership and concurrent transfer of its permit, the vessel's red
snapper landings record is credited to the owner of that vessel on March
1, 1997, unless there is a legally binding agreement under which a
previous owner retained the landings record. An owner who claims such
retention of a landings record must submit a copy of the agreement to
the RA postmarked or hand delivered not later than January 30, 1998.
However, an owner who submits a copy of such agreement after January 6,
1998, is not assured that a red snapper license will be issued before
the opening of the commercial fishery for red snapper on February 1,
1998.
(6) Implementation procedures--(i) Initial notification. The RA will
notify each owner of a vessel that had a valid permit for Gulf reef fish
on March 1, 1997, each operator whose earned income qualified for a
valid permit on that date, and each potential historical captain of his
or her eligibility for a Class 1 or Class 2 red snapper license. Initial
determinations of eligibility will be based on NMFS' records of red
snapper endorsements, red snapper landings during the period from
January 1, 1990, through February 28, 1997, and applications for
historical captain status under Amendment 9 to the FMP (59 FR 39301,
August 2, 1994). An owner, operator, or potential historical captain who
concurs with NMFS' initial determination of eligibility need take no
further action. Each owner, operator, and historical captain who is
initially determined to be eligible will be issued an appropriate
license not later than January 23, 1998.
(ii) Reconsideration. (A) An owner, operator, or potential
historical captain who does not concur with NMFS' initial determination
of eligibility for historical captain status or for a Class 2 red
snapper license may request reconsideration of that initial
determination by the RA.
(B) A written request for reconsideration must be submitted to the
RA postmarked or hand delivered not later than February 10, 1998, and
must provide written documentation supporting the basis for
reconsideration. However, an owner who submits such request after
January 13, 1998, is not assured that a red snapper license will be
issued before the opening of the commercial fishery for red snapper on
February 1, 1998. Upon request by the owner, operator, or potential
historical captain, the RA will forward the initial determination, the
request for reconsideration, and pertinent records to a committee
consisting of the principal state officials who are members of the
GMFMC, or their designees. An owner, operator, or potential historical
captain may request to make a personal appearance before the committee
in his or her request for reconsideration. If an owner, operator, or
potential historical captain requests that his or her request be
forwarded to the committee, such a request constitutes the applicant's
written authorization under section 402(b)(1)(F) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) for the
RA to make available to the committee members such confidential catch
and other records as are pertinent to the matter under reconsideration.
(C) Members of the committee will provide their individual
recommendations for each application for reconsideration referred to the
committee to the RA. The committee may only deliberate whether the
eligibility criteria specified in paragraph (p)(5) of this section were
applied correctly in the applicant's case, based solely on the available
record, including documentation submitted by the applicant. Neither the
committee nor the RA may consider whether a person should have been
eligible for historical captain status or a Class 2 license because of
hardship or other factors. The RA will make a final decision based on
the initial eligibility criteria in paragraph (p)(5) of this section and
the available record, including documentation submitted by the
applicant, and, if the request is considered by the committee,
[[Page 145]]
the recommendations and comments from each member of the committee. The
RA will notify the applicant of the decision and the reason therefore,
in writing, within 15 days of receiving the recommendations of the
committee members. If the application is not considered by the
committee, the RA will provide such notification within 15 days of the
RA's receipt of the request for reconsideration. The RA's decision will
constitute the final administrative action by NMFS on an application for
reconsideration.
(q) Moratorium on commercial vessel permits for king mackerel. This
paragraph (q) is effective through October 15, 2005.
(1) No applications for additional commercial vessel permits for
king mackerel will be accepted. Existing vessel permits may be renewed,
are subject to the restrictions on transfer or change in paragraphs
(q)(2) through (q)(5) of this section, and are subject to the
requirement for timely renewal in paragraph (q)(6) of this section.
(2) An owner of a permitted vessel may transfer the commercial
vessel permit for king mackerel issued under this moratorium to another
vessel owned by the same entity.
(3) An owner whose percentage of earned income or gross sales
qualified him/her for the commercial vessel permit for king mackerel
issued under the moratorium may request that NMFS transfer that permit
to the owner of another vessel, or to the new owner when he or she
transfers ownership of the permitted vessel. Such owner of another
vessel, or new owner, may receive a commercial vessel permit for king
mackerel for his or her vessel, and renew it through April 15 following
the first full calendar year after obtaining it, without meeting the
percentage of earned income or gross sales requirement of paragraph
(a)(2)(iii) of this section. However, to further renew the commercial
vessel permit, the owner of the other vessel, or new owner, must meet
the earned income or gross sales requirement not later than the first
full calendar year after the permit transfer takes place.
(4) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may request that NMFS transfer the permit to
the income-qualifying operator when such operator becomes an owner of a
vessel.
(5) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may have the operator qualification on the
permit removed, and renew it without such qualification through April 15
following the first full calendar year after removing it, without
meeting the earned income or gross sales requirement of paragraph
(a)(2)(iii) of this section. However, to further renew the commercial
vessel permit, the owner must meet the earned income or gross sales
requirement not later than the first full calendar year after the
operator qualification is removed. To have an operator qualification
removed from a permit, the owner must return the original permit to the
RA with an application for the changed permit.
(6) NMFS will not reissue a commercial vessel permit for king
mackerel if the permit is revoked or if the RA does not receive an
application for renewal within 1 year of the permit's expiration date.
[61 FR 34937, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 47448, Sept 9, 1996; 61 FR 48414, Sept. 13, 1996; 62 FR 13986, Mar.
25, 1997; 62 FR 67721, 67722, Dec. 30, 1997; 63 FR 10565, 10569, Mar. 4,
1998; 63 FR 38301, July 16, 1998; 63 FR 57590, Oct. 28, 1998; 64 FR
59126, Nov. 2, 1999; 65 FR 16339, Mar. 28, 2000; 65 FR 41017, July 3,
2000; 65 FR 52956, Aug. 31, 2000]
Effective Date Note: At 65 FR 52956, Aug. 31, 2000, Sec. 622.4 was
amended by revising the last two sentences of paragraph (a)(2)(iii), the
last sentence of (a)(2)(iv), and paragraph (q), effective Oct. 2, 2000.
For the convenience of the user, the superseded text follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(iii) * * * To obtain or renew a commercial vessel permit for king
mackerel valid after April 30, 1999, at least 25 percent of the
applicant's earned income, or at least $10,000, must have been derived
from commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during one of the 3 calendar years preceding the
application. See paragraph (q) of this section regarding a
[[Page 146]]
moratorium on commercial vessel permits for king mackerel, initial
permits under the moratorium, transfers of permits during the
moratorium, and limited exceptions to the earned income or gross sales
requirement for a permit.
(iv) * * * To obtain or renew a commercial vessel permit for Spanish
mackerel valid after April 30, 1999, at least 25 percent of the
applicant's earned income, or at least $10,000, must have been derived
from commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during one of the 3 calendar years preceding the
application.
* * * * *
(q) Moratorium on commercial vessel permits for king mackerel. This
paragraph (q) is effective through October 15, 2000.
(1) Effective March 4, 1998, an initial commercial vessel permit for
king mackerel will be issued only if the vessel owner was the owner of a
vessel with a commercial vessel permit for king mackerel on or before
October 16, 1995. A king mackerel permit for a vessel whose owner does
not meet this moratorium criterion may be renewed only through April 30,
1999.
(2) To obtain a commercial vessel permit for king mackerel under the
moratorium, an owner or operator of a vessel that does not have a valid
king mackerel permit on March 4, 1998, must submit an application to the
RA postmarked or hand delivered not later than June 2, 1998. Other than
applications for renewals of commercial vessel permits for king
mackerel, no applications for commercial vessel permits for king
mackerel will be accepted after June 2, 1998. Application forms are
available from the RA.
(3) An owner will not be issued initial commercial vessel permits
for king mackerel under the moratorium in numbers exceeding the number
of vessels permitted in the king mackerel fishery that he/she owned
simultaneously on or before October 16, 1995. If a vessel with a
commercial vessel permit for king mackerel on or before October 16,
1995, has been sold since that date, the owner on or before that date
retains the right to the commercial vessel permit for king mackerel
unless there is a written agreement that such right transfers to the new
owner.
(4) An owner of a permitted vessel may transfer the commercial
vessel permit for king mackerel issued under this moratorium to another
vessel owned by the same entity.
(5) An owner whose percentage of earned income or gross sales
qualified him/her for the commercial vessel permit for king mackerel
issued under the moratorium may request that NMFS transfer that permit
to the owner of another vessel, or to the new owner when he or she
transfers ownership of the permitted vessel. Such owner of another
vessel, or new owner, may receive a commercial vessel permit for king
mackerel for his or her vessel, and renew it through April 15 following
the first full calendar year after obtaining it, without meeting the
percentage of earned income or gross sales requirement of paragraph
(a)(2)(iii) of this section. However, to further renew the commercial
vessel permit, the owner of the other vessel, or new owner, must meet
the earned income or gross sales requirement not later than the first
full calendar year after the permit transfer takes place.
(6) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may request that NMFS transfer the permit to
the income-qualifying operator when such operator becomes an owner of a
vessel.
(7) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may have the operator qualification on the
permit removed, and renew it without such qualification through April 15
following the first full calendar year after removing it, without
meeting the earned income or gross sales requirement of paragraph
(a)(2)(iii) of this section. However, to further renew the commercial
vessel permit, the owner must meet the earned income or gross sales
requirement not later than the first full calendar year after the
operator qualification is removed. To have an operator qualification
removed from a permit, the owner must return the original permit to the
RA with an application for the changed permit.
(8) NMFS will not reissue a commercial vessel permit for king
mackerel if the permit is revoked or if the RA does not receive an
application for renewal within 1 year of the permit's expiration date.
Sec. 622.5 Recordkeeping and reporting.
Participants in fisheries governed in this part are required to keep
records and report as follows.
(a) Commercial vessel owners and operators--(1) Requirements by
species--(i) Coastal migratory pelagic fish. The owner or operator of a
vessel that fishes for or lands coastal migratory pelagic fish for sale
in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ or adjoining
state waters, or whose vessel is issued a commercial permit for king or
Spanish mackerel, as required under Sec. 622.4(a)(2)(iii) or (iv), who
is selected to report by the SRD, must maintain a fishing record on a
form available from the SRD and must submit such record as specified in
paragraph (a)(2) of this section.
[[Page 147]]
(ii) Gulf reef fish. The owner or operator of a vessel for which a
commercial permit for Gulf reef fish has been issued, as required under
Sec. 622.4(a)(2)(v), or whose vessel fishes for or lands reef fish in or
from state waters adjoining the Gulf EEZ, who is selected to report by
the SRD must maintain a fishing record on a form available from the SRD
and must submit such record as specified in paragraph (a)(2) of this
section.
(A) Fish traps. In addition to the other reporting requirements in
paragraph (a)(1)(ii) of this section, the owner or operator of a vessel
for which a fish trap endorsement has been issued, as required under
Sec. 622.4(a)(2)(i), must comply with the following requirements.
(1) Inspection. The RA will establish a 1-month period for mandatory
inspection of all fish trap gear, permits, and vessels. The RA will
provide written notification of the inspection period to each owner of a
vessel for which a fish trap endorsement has been issued as required
under Sec. 622.4(a)(2)(i). Each such owner or operator must contact the
Special Agent-in-Charge, NMFS, Office of Enforcement, Southeast Region,
St. Petersburg, FL (SAC) or his designee by telephone (727-570-5344) to
schedule an inspection during the 1-month period. Requests for
inspection must be made between 8:00 a.m. and 4:30 p.m. Monday through
Friday and must be made at least 72 hours in advance of the desired
inspection date. Inspections will be conducted Monday through Friday
between 8:00 a.m. and 4:30 p.m. only. On the inspection date, the owner
or operator must make all fish trap gear with attached trap tags and
buoys and all applicable permits available for inspection on land.
Vessels must also be made available for inspection as directed by the
SAC or his designee. Upon completion of the inspection and a
determination that all fish trap gear, permits, and vessels are in
compliance, an owner or operator may resume fishing with the lawful
gear. However, an owner or operator who fails to comply with the
inspection requirements during the 1-month inspection period or during
any other random inspection may not use or possess a fish trap in the
Gulf EEZ until the required inspection or reinspection, as directed by
the SAC, has been completed and all fish trap gear, permits, and vessels
are determined to be in compliance with all applicable regulations.
(2) Trip reports. For each fishing trip on which a fish trap will be
used or possessed, an owner or operator of a vessel for which a fish
trap endorsement has been issued, as required under Sec. 622.4(a)(2)(i),
must submit a trip initiation report and a trip termination report to
the SAC or his designee, by telephone, using the following 24-hour toll-
free number--800-305-0697.
(i) Trip initiation report. The trip initiation report must be
submitted before beginning the trip and must include: vessel name;
official number; number of traps to be deployed; sequence of trap tag
numbers; date, time, and point of departure; and intended time and date
of trip termination.
(ii) Trip termination report. The trip termination report must be
submitted immediately upon returning to port and prior to any offloading
of catch or fish traps. The trip termination report must include: vessel
name; official number; name and address of dealer where catch will be
offloaded and sold; the time offloading will begin; notification of any
lost traps; and notification of any traps left deployed for any reason.
(B) [Reserved]
(iii) Gulf shrimp. The owner or operator of a vessel that fishes for
shrimp in the Gulf EEZ or in adjoining state waters, or that lands
shrimp in an adjoining state, must provide information for any fishing
trip, as requested by the SRD, including, but not limited to, vessel
identification, gear, effort, amount of shrimp caught by species, shrimp
condition (heads on/heads off), fishing areas and depths, and person to
whom sold.
(iv) South Atlantic snapper-grouper. (A) The owner or operator of a
vessel for which a commercial permit for South Atlantic snapper-grouper
has been issued, as required under Sec. 622.4(a)(2)(vi), or whose vessel
fishes for or lands South Atlantic snapper-grouper in or from state
waters adjoining the South Atlantic EEZ, who is selected to report by
the SRD must maintain a fishing record on a form
[[Page 148]]
available from the SRD and must submit such record as specified in
paragraph (a)(2) of this section.
(B) The wreckfish shareholder under Sec. 622.15, or operator of a
vessel for which a commercial permit for wreckfish has been issued, as
required under Sec. 622.4(a)(2)(vii), must maintain a fishing record on
a form available from the SRD and must submit such record as specified
in paragraph (a)(2) of this section.
(C) The wreckfish shareholder under Sec. 622.15, or operator of a
vessel for which a commercial permit for wreckfish has been issued, as
required under Sec. 622.4(a)(2)(vii), must make available to an
authorized officer upon request all records of offloadings, purchases,
or sales of wreckfish.
(v) South Atlantic golden crab. The owner or operator of a vessel
for which a commercial permit for golden crab has been issued, as
required under Sec. 622.4(a)(2)(x), who is selected to report by the SRD
must maintain a fishing record on a form available from the SRD.
(2) Reporting deadlines. (i) Completed fishing records required by
paragraphs (a)(1)(i), (ii), and (iv) of this section must be submitted
to the SRD postmarked not later than 7 days after the end of each
fishing trip. If no fishing occurred during a calendar month, a report
so stating must be submitted on one of the forms postmarked not later
than 7 days after the end of that month. Information to be reported is
indicated on the form and its accompanying instructions.
(ii) Reporting forms required in paragraph (a)(1)(v) of this section
must be submitted to the SRD postmarked not later than 30 days after
sale of the golden crab offloaded from a trip. If no fishing occurred
during a calendar month, a report so stating must be submitted on one of
the forms postmarked not later than 7 days after the end of that month.
Information to be reported is indicated on the form and its accompanying
instructions.
(b) Charter vessel/headboat owners and operators--(1) Coastal
migratory pelagic fish, reef fish, and snapper-grouper. The owner or
operator of a vessel for which a charter vessel/headboat permit for
coastal migratory pelagic fish, Gulf reef fish, or South Atlantic
snapper-grouper has been issued, as required under Sec. 622.4(a)(1), or
whose vessel fishes for or lands such coastal migratory pelagic fish,
reef fish, or snapper-grouper in or from state waters adjoining the Gulf
or South Atlantic EEZ, who is selected to report by the SRD must
maintain a fishing record for each trip, or a portion of such trips as
specified by the SRD, on forms provided by the SRD and must submit such
record as specified in paragraph (b)(2) of this section.
(2) Reporting deadlines--(i) Charter vessels. Completed fishing
records required by paragraph (b)(1) of this section for charter vessels
must be submitted to the SRD weekly, postmarked not later than 7 days
after the end of each week (Sunday). Information to be reported is
indicated on the form and its accompanying instructions.
(ii) Headboats. Completed fishing records required by paragraph
(b)(1) of this section for headboats must be submitted to the SRD
monthly and must either be made available to an authorized statistical
reporting agent or be postmarked not later than 7 days after the end of
each month. Information to be reported is indicated on the form and its
accompanying instructions.
(c) Dealers--(1) Coastal migratory pelagic fish. (i) A person who
purchases coastal migratory pelagic fish from a fishing vessel, or
person, that fishes for or lands such fish in or from the EEZ or
adjoining state waters who is selected to report by the SRD must submit
information on forms provided by the SRD. This information must be
submitted to the SRD at monthly intervals, postmarked not later than 5
days after the end of each month. Reporting frequency and reporting
deadlines may be modified upon notification by the SRD. If no coastal
migratory pelagic fish were received during a calendar month, a report
so stating must be submitted on one of the forms, in accordance with the
instructions on the form, and must be postmarked not later than 5 days
after the end of the month. The information to be reported is as
follows:
(A) Dealer's or processor's name and address.
(B) County where fish were landed.
[[Page 149]]
(C) Total poundage of each species received during that month, or
other requested interval.
(D) Average monthly price paid for each species.
(E) Proportion of total poundage landed by each gear type.
(ii) Alternate SRD. For the purposes of paragraph (c)(1)(i) of this
section, in the states from New York through Virginia, or in the waters
off those states, ``SRD'' means the Science and Research Director,
Northeast Fisheries Science Center, NMFS (see Table 1 of Sec. 600.502 of
this chapter), or a designee.
(2) Gulf red drum. A dealers or processor who purchases red drum
harvested from the Gulf who is selected to report by the SRD must report
to the SRD such information as the SRD may request and in the form and
manner as the SRD may require. The information required to be submitted
must include, but is not limited to, the following:
(i) Dealer's or processor's name and address.
(ii) State and county where red drum were landed.
(iii) Total poundage of red drum received during the reporting
period, by each type of gear used for harvest.
(3) Gulf reef fish. A person who purchases Gulf reef fish from a
fishing vessel, or person, that fishes for or lands such fish in or from
the EEZ or adjoining state waters must maintain records and submit
information as follows:
(i) A dealer must maintain at his/her principal place of business a
record of Gulf reef fish that he/she receives. The record must contain
the name of each fishing vessel from which reef fish were received and
the date, species, and quantity of each receipt. A dealer must retain
such record for at least 1 year after receipt date and must provide such
record for inspection upon the request of an authorized officer or the
SRD.
(ii) When requested by the SRD, a dealer must provide information
from his/her record of Gulf reef fish received the total poundage of
each species received during the month, average monthly price paid for
each species by market size, and proportion of total poundage landed by
each gear type. This information must be provided on forms available
from the SRD and must be submitted to the SRD at monthly intervals,
postmarked not later than 5 days after the end of the month. Reporting
frequency and reporting deadlines may be modified upon notification by
the SRD. If no reef fish were received during a calendar month, a report
so stating must be submitted on one of the forms, postmarked not later
than 5 days after the end of the month.
(iii) The operator of a car or truck that is used to pick up from a
fishing vessel reef fish harvested from the Gulf must maintain a record
containing the name of each fishing vessel from which reef fish on the
car or truck have been received. The vehicle operator must provide such
record for inspection upon the request of an authorized officer.
(4) Gulf shrimp. A person who purchases shrimp from a vessel, or
person, that fishes for shrimp in the Gulf EEZ or in adjoining state
waters, or that lands shrimp in an adjoining state, must provide the
following information when requested by the SRD:
(i) Name and official number of the vessel from which shrimp were
received or the name of the person from whom shrimp were received, if
received from other than a vessel.
(ii) Amount of shrimp received by species and size category for each
receipt.
(iii) Exvessel value, by species and size category, for each
receipt.
(5) South Atlantic snapper-grouper. (i) A person who purchases South
Atlantic snapper-grouper that were harvested from the EEZ or from
adjoining state waters and who is selected to report by the SRD and a
dealer who has been issued a dealer permit for wreckfish, as required
under Sec. 622.4(a)(4), must provide information on receipts of South
Atlantic snapper-grouper and prices paid, by species, on forms available
from the SRD. The required information must be submitted to the SRD at
monthly intervals, postmarked not later than 5 days after the end of the
month. Reporting frequency and reporting deadlines may be modified upon
notification by the SRD. If no South Atlantic snapper-grouper were
received during a calendar month, a report so stating must be submitted
on one of the forms, postmarked not later
[[Page 150]]
than 5 days after the end of the month. However, during complete months
encompassed by the wreckfish spawning-season closure (that is, February
and March), a wreckfish dealer is not required to submit a report
stating that no wreckfish were received.
(ii) A dealer reporting South Atlantic snapper-grouper other than
wreckfish may submit the information required in paragraph (c)(5)(i) of
this section via facsimile (fax).
(iii) A dealer who has been issued a dealer permit for wreckfish, as
required under Sec. 622.4(a)(4), must make available to an authorized
officer upon request all records of offloadings, purchases, or sales of
wreckfish.
(6) South Atlantic golden crab. A dealer who receives from a fishing
vessel golden crab harvested from the South Atlantic EEZ and who is
selected by the SRD must provide information on receipts of, and prices
paid for, South Atlantic golden crab to the SRD at monthly intervals,
postmarked not later than 5 days after the end of each month. Reporting
frequency and reporting deadlines may be modified upon notification by
the SRD.
(7) South Atlantic rock shrimp. (i) A dealer who has been issued a
permit for rock shrimp, as required under Sec. 622.4(a)(4), and who is
selected by the SRD must provide information on receipts of rock shrimp
and prices paid on forms available from the SRD. The required
information must be submitted to the SRD at monthly intervals postmarked
not later than 5 days after the end of each month. Reporting frequencies
and reporting deadlines may be modified upon notification by the SRD.
(ii) On demand, a dealer who has been issued a dealer permit for
rock shrimp, as required under Sec. 622.4(a)(4), must make available to
an authorized officer all records of offloadings, purchases, or sales of
rock shrimp.
(d) Individuals with coral or live rock permits. (1) An individual
with a Federal allowable octocoral permit must submit a report of
harvest to the SRD. Specific reporting requirements will be provided
with the permit.
(2) A person with a Federal aquacultured live rock permit must
report to the RA each deposition of material on a site. Such reports
must be postmarked not later than 7 days after deposition and must
contain the following information:
(i) Permit number of site and date of deposit.
(ii) Geological origin of material deposited.
(iii) Amount of material deposited.
(iv) Source of material deposited, that is, where obtained, if
removed from another habitat, or from whom purchased.
(3) A person who takes aquacultured live rock must submit a report
of harvest to the RA. Specific reporting requirements will be provided
with the permit. This reporting requirement is waived for aquacultured
live rock that is landed in Florida.
(e) Additional data and inspection. Additional data will be
collected by authorized statistical reporting agents and by authorized
officers. A person who fishes for or possesses species in or from the
EEZ governed in this part is required to make the applicable fish or
parts thereof available for inspection by the SRD or an authorized
officer upon request.
(f) Commercial vessel, charter vessel, and headboat inventory. The
owner or operator of a commercial vessel, charter vessel, or headboat
operating in a fishery governed in this part who is not selected to
report by the SRD under paragraph (a) or (b) of this section must
provide the following information when interviewed by the SRD:
(1) Name and official number of vessel and permit number, if
applicable.
(2) Length and tonnage.
(3) Current home port.
(4) Fishing areas.
(5) Ports where fish were offloaded during the last year.
(6) Type and quantity of gear.
(7) Number of full- and part-time fishermen or crew members.
[61 FR 34940, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 47448, Sept. 9, 1996; 63 FR 10567, Mar. 4, 1998; 63 FR 57590, Oct.
28, 1998; 64 FR 59126, Nov. 2, 1999; 64 FR 68935, Dec. 9, 1999]
Sec. 622.6 Vessel and gear identification.
(a) Vessel identification--(1) Applicability--(i) Official number. A
vessel for which a permit has been issued under
[[Page 151]]
Sec. 622.4, and a vessel that fishes for or possesses shrimp in the Gulf
EEZ, must display its official number--
(A) On the port and starboard sides of the deckhouse or hull and,
for vessels over 25 ft (7.6 m) long, on an appropriate weather deck, so
as to be clearly visible from an enforcement vessel or aircraft.
(B) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(C) At least 18 inches (45.7 cm) in height for vessels over 65 ft
(19.8 m) long; at least 10 inches (25.4 cm) in height for vessels over
25 ft (7.6 m) long; and at least 3 inches (7.6 cm) in height for vessels
25 ft (7.6 m) long or less.
(ii) Official number and color code. The following vessels must
display their official number as specified in paragraph (a)(1)(i) of
this section and, in addition, must display their assigned color code: A
vessel for which a fish trap endorsement has been issued, as required
under Sec. 622.4(a)(2)(i); a vessel for which a permit has been issued
to fish with a sea bass pot, as required under Sec. 622.4(a)(2)(vi); a
vessel in the commercial Caribbean reef fish fishery fishing with traps;
and a vessel in the Caribbean spiny lobster fishery. Color codes
required for the Caribbean reef fish fishery and Caribbean spiny lobster
fishery are assigned by Puerto Rico or the U.S. Virgin Islands,
whichever is applicable; color codes required in all other fisheries are
assigned by the RA. The color code must be displayed--
(A) On the port and starboard sides of the deckhouse or hull and,
for vessels over 25 ft (7.6 m) long, on an appropriate weather deck, so
as to be clearly visible from an enforcement vessel or aircraft.
(B) In the form of a circle permanently affixed to or painted on the
vessel.
(C) At least 18 inches (45.7 cm) in diameter for vessels over 65 ft
(19.8 m) long; at least 10 inches (25.4 cm) in diameter for vessels over
25 ft (7.6 m) long; and at least 3 inches (7.6 cm) in diameter for
vessels 25 ft (7.6 m) long or less.
(2) Duties of operator. The operator of a vessel specified in
paragraph (a)(1) of this section must keep the official number and the
color code, if applicable, clearly legible and in good repair and must
ensure that no part of the fishing vessel, its rigging, fishing gear, or
any other material on board obstructs the view of the official number or
the color code, if applicable, from an enforcement vessel or aircraft.
(b) Gear identification--(1) Traps/pots and associated buoys--(i)
Traps or pots--(A) Caribbean EEZ. A fish trap or spiny lobster trap used
or possessed in the Caribbean EEZ must display the official number
specified for the vessel by Puerto Rico or the U.S. Virgin Islands so as
to be easily identified.
(B) Gulf and South Atlantic EEZ. A fish trap used or possessed in
the Gulf EEZ and a sea bass pot used or possessed in the South Atlantic
EEZ between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC)
and 28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly
Building, Cape Canaveral, FL), or a fish trap or sea bass pot on board a
vessel with a commercial permit for Gulf reef fish or South Atlantic
snapper-grouper, must have a valid identification tag issued by the RA
attached. A golden crab trap used or possessed in the South Atlantic EEZ
or on board a vessel with a commercial permit for golden crab must have
the commercial vessel permit number permanently affixed so as to be
easily distinguished, located, and identified; an identification tag
issued by the RA may be used for this purpose but is not required.
(ii) Associated buoys. A buoy that is attached to a trap or pot must
display the official number and assigned color code so as to be easily
distinguished, located, and identified as follows:
(A) Caribbean EEZ. Each buoy must display the official number and
color code assigned to the vessel by Puerto Rico or the U.S. Virgin
Islands, whichever is applicable.
(B) Gulf and South Atlantic EEZ. Each buoy must display the official
number and color code assigned by the RA. In the Gulf EEZ, a buoy must
be attached to each trap, or each end trap if traps are connected by a
line. In the South Atlantic EEZ, buoys are not required to be used, but,
if used, each buoy must display the official number and color
[[Page 152]]
code. However, no color code is required on a buoy attached to a golden
crab trap.
(iii) Presumption of ownership. A Caribbean spiny lobster trap, a
fish trap, a golden crab trap, or a sea bass pot in the EEZ will be
presumed to be the property of the most recently documented owner. This
presumption will not apply with respect to such traps and pots that are
lost or sold if the owner reports the loss or sale within 15 days to the
RA.
(iv) Unmarked traps, pots, or buoys. An unmarked Caribbean spiny
lobster trap, a fish trap, a golden crab trap, a sea bass pot, or a buoy
deployed in the EEZ where such trap, pot, or buoy is required to be
marked is illegal and may be disposed of in any appropriate manner by
the Assistant Administrator or an authorized officer.
(2) Gillnet buoys. On board a vessel with a valid Spanish mackerel
permit that is fishing for Spanish mackerel in, or that possesses
Spanish mackerel in or from, the South Atlantic EEZ off Florida north of
25 deg.20.4' N. lat., which is a line directly east from the Miami-Dade/
Monroe County, FL, boundary, the float line of each gillnet possessed,
including any net in use, must have a maximum of nine distinctive
floats, i.e., different from the usual net buoys, spaced uniformly at a
distance of 100 yd (91.4 m) or less. Each such distinctive float must
display the official number of the vessel.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43957, Aug. 27, 1996; 63
FR 10567, Mar. 4, 1998; 63 FR 57590, Oct. 28, 1998; 64 FR 59126, Nov. 2,
1999; 65 FR 52957, Aug. 31, 2000]
Effective Date Note: At 65 FR 52957, Aug. 31, 2000, Sec. 622.6 was
amended in paragraph (b)(2) by removing the word ``Dade'' and adding in
its place ``Miami-Dade'', effective Oct. 2, 2000.
Sec. 622.7 Prohibitions.
In addition to the general prohibitions in Sec. 600.725 of this
chapter, it is unlawful for any person to do any of the following:
(a) Engage in an activity for which a valid Federal permit, license,
or endorsement is required under Sec. 622.4 without such permit,
license, or endorsement.
(b) Falsify information on an application for a permit, license, or
endorsement or submitted in support of such application, as specified in
Sec. 622.4(b), (g), (p), or (q), or in Sec. 622.18.
(c) Fail to display a permit, license, or endorsement, as specified
in Sec. 622.4(i).
(d) Falsify or fail to maintain, submit, or provide information or
fail to comply with inspection requirements or restrictions, as
specified in Sec. 622.5(a) through (f).
(e) Fail to make a fish, or parts thereof, available for inspection,
as specified in Sec. 622.5(e).
(f) Falsify or fail to display and maintain vessel and gear
identification, as specified in Sec. 622.6 (a) and (b).
(g) Fail to comply with any requirement or restriction regarding ITQ
coupons, as specified in Sec. 622.15(c)(3), (c)(5), (c)(6), or (c)(7).
(h) Possess wreckfish as specified in Sec. 622.15(c)(4), receive
wreckfish except as specified in Sec. 622.15(c)(7), or offload a
wreckfish except as specified in Sec. 622.15 (d)(3) and (d)(4).
(i) Transfer--
(1) A wreckfish, as specified in Sec. 622.15(d)(1);
(2) A limited-harvest species, as specified in Sec. 622.32(c)
introductory text;
(3) A species/species group subject to a bag limit, as specified
Sec. 622.39(a)(1);
(4) South Atlantic snapper-grouper from a vessel with unauthorized
gear on board, as specified in Sec. 622.41(d)(2)(iii); or
(5) A species subject to a commercial trip limit, as specified in
Sec. 622.44.
(j) Use or possess prohibited gear or methods or possess fish in
association with possession or use of prohibited gear, as specified in
Sec. 622.31.
(k) Fish for, harvest, or possess a prohibited species, or a
limited-harvest species in excess of its limitation, sell or purchase
such species, fail to comply with release requirements, or molest or
strip eggs from a Caribbean spiny lobster, as specified in Sec. 622.32.
(l) Fish in violation of the prohibitions, restrictions, and
requirements applicable to seasonal and/or area closures, including but
not limited to: Prohibition of all fishing, gear restrictions,
restrictions on take or retention of fish, fish release requirements,
and
[[Page 153]]
restrictions on use of an anchor or grapple, as specified in
Sec. 622.33, Sec. 622.34, or Sec. 622.35, or as may be specified under
Sec. 622.46 (b) or (c).
(m) Harvest, possess, offload, sell, or purchase fish in excess of
the seasonal harvest limitations, as specified in Sec. 622.36.
(n) Except as allowed under Sec. 622.37(c) (2) and (3) for king and
Spanish mackerel, possess undersized fish, fail to release undersized
fish, or sell or purchase undersized fish, as specified in Sec. 622.37.
(o) Fail to maintain a fish intact through offloading ashore, as
specified in Sec. 622.38.
(p) Exceed a bag or possession limit, as specified in Sec. 622.39.
(q) Fail to comply with the limitations on traps and pots, including
but not limited to: Tending requirements, constructions requirements,
and area specific restrictions, as specified in Sec. 622.40.
(r) Fail to comply with the species-specific limitations, as
specified in Sec. 622.41.
(s) Fail to comply with the restrictions that apply after closure of
a fishery, as specified in Sec. 622.43.
(t) Possess on board a vessel or land, purchase, or sell fish in
excess of the commercial trip limits, as specified in Sec. 622.44.
(u) Fail to comply with the restrictions on sale/purchase, as
specified in Sec. 622.45.
(v) Interfere with fishing or obstruct or damage fishing gear or the
fishing vessel of another, as specified in Sec. 622.46(a).
(w) Fail to comply with the requirements for observer coverage as
specified in Sec. 622.10.
(x) Assault, resist, oppose, impede, intimidate, or interfere with a
NMFS-approved observer aboard a vessel.
(y) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or her
duties aboard a vessel.
(z) Fish for or possess golden crab in or from a designated fishing
zone of the South Atlantic EEZ other than the zone for which the vessel
is permitted, as specified in Sec. 622.17(b).
(aa) Falsify information submitted regarding an application for
testing a BRD, testing of a BRD, or the results of such testing, as
specified in Sec. 622.41(g)(3)(i) or (h)(3).
(bb) [Reserved]
[61 FR 34934, July 3, 1996, as amended at 61 FR 43957, Aug. 27, 1996; 61
FR 48415, Sept. 13, 1996; 62 FR 67722, Dec. 30, 1997; 63 FR 38301, July
16, 1998; 63 FR 57590, Oct. 28, 1998; 64 FR 37693, July 13, 1999; 64 FR
43941, Aug. 12, 1999; 64 FR 68935, Dec. 9, 1999]
Sec. 622.8 At-sea observer coverage.
(a) If a vessel's trip is selected by the SRD for observer coverage,
the owner or operator of a vessel for which a commercial permit for
golden crab has been issued, as required under Sec. 622.4(a)(2)(x), must
carry a NMFS-approved observer.
(b) When notified in writing by the SRD that his or her vessel has
been selected to carry an NMFS-approved observer, an owner or operator
must advise the SRD in writing not less than 5 days in advance of each
trip of the following:
(1) Departure information (port, dock, date, and time).
(2) Expected landing information (port, dock, and date).
(c) An owner or operator of a vessel on which a NMFS approved
observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the transmission
and receipt of messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any other
space used to hold, process, weigh, or store golden crab.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with
[[Page 154]]
the catch and distribution of golden crab for that trip.
[61 FR 43957, Aug. 27, 1996, as amended at 63 FR 57590, Oct. 28, 1998]
Subpart B--Effort Limitations
Sec. 622.15 Wreckfish individual transferable quota (ITQ) system.
The provisions of this section apply to wreckfish in or from the
South Atlantic EEZ.
(a) Percentage shares. (1) In accordance with the procedure
specified in the Fishery Management Plan for the Snapper-Grouper Fishery
of the South Atlantic Region, percentage shares of the quota for
wreckfish have been assigned. Each person has been notified by the RA of
his or her percentage share and shareholder certificate number.
(2) All or a portion of a person's percentage shares may be
transferred to another person. Transfer of shares must be reported on a
form available from the RA. The RA will confirm, in writing, each
transfer of shares. The effective date of each transfer is the
confirmation date provided by the RA. The confirmation date will
normally be not later than 3 working days after receipt of a properly
completed transfer form. A fee is charged for each transfer of shares.
The amount of the fee is calculated in accordance with the procedures of
the NOAA Finance Handbook, available from the RA, for determining the
administrative costs of each special product or service provided by NOAA
to non-Federal recipients. The fee may not exceed such costs and is
specified with each transfer form. The appropriate fee must accompany
each transfer form.
(b) Lists of wreckfish shareholders and permitted vessels. Annually,
on or about March 1, the RA will provide each wreckfish shareholder with
a list of all wreckfish shareholders and their percentage shares,
reflecting share transactions on forms received through February 15.
Annually by April 15, the RA will provide each dealer who holds a dealer
permit for wreckfish, as required under Sec. 622.4(a)(4), with a list of
vessels for which wreckfish permits have been issued, as required under
Sec. 622.4(a)(2)(vii). Annually, by April 15, the RA will provide each
wreckfish shareholder with a list of dealers who have been issued dealer
permits for wreckfish. From April 16 through January 14, updated lists
will be provided when required. Updated lists may be obtained at other
times or by a person who is not a wreckfish shareholder or wreckfish
dealer permit holder by written request to the RA.
(c) ITQs. (1) Annually, as soon after March 1 as the TAC for
wreckfish for the fishing year that commences April 16 is known, the RA
will calculate each wreckfish shareholder's ITQ. Each ITQ is the product
of the wreckfish TAC, in round weight, for the ensuing fishing year, the
factor for converting round weight to eviscerated weight, and each
wreckfish shareholder's percentage share, reflecting share transactions
reported on forms received by the RA through February 15. Thus, the ITQs
will be in terms of eviscerated weight of wreckfish.
(2) The RA will provide each wreckfish shareholder with ITQ coupons
in various denominations, the total of which equals his or her ITQ, and
a copy of the calculations used in determining his or her ITQ. Each
coupon will be coded to indicate the initial recipient.
(3) An ITQ coupon may be transferred from one wreckfish shareholder
to another by completing the sale endorsement thereon (that is, the
signature and shareholder certificate number of the buyer). An ITQ
coupon may be possessed only by the shareholder to whom it has been
issued, or by the shareholder's employee, contractor, or agent, unless
the ITQ coupon has been transferred to another shareholder. An ITQ
coupon that has been transferred to another shareholder may be possessed
only by the shareholder whose signature appears on the coupon as the
buyer, or by the shareholder's employee, contractor, or agent, and with
all required sale endorsements properly completed.
(4) Wreckfish may not be possessed on board a fishing vessel--
(i) In an amount exceeding the total of the ITQ coupons on board the
vessel;
(ii) That does not have on board a commercial vessel permit for
[[Page 155]]
wreckfish, as required under Sec. 622.4(a)(2)(vii); or
(iii) That does not have on board logbook forms for that fishing
trip, as required under Sec. 622.5(a)(1)(iv)(B).
(5) Prior to termination of a trip, a signature and date signed must
be affixed in ink to the ``Fisherman'' part of ITQ coupons in
denominations equal to the eviscerated weight of the wreckfish on board.
The ``Fisherman'' part of each such coupon must be separated from the
coupon and submitted with the logbook forms required by
Sec. 622.5(a)(1)(iv)(B) for that fishing trip.
(6) The ``Fish House'' part of each such coupon must be given to the
dealer to whom the wreckfish are transferred in amounts totaling the
eviscerated weight of the wreckfish transferred to that dealer. A
wreckfish may be transferred only to a dealer who holds a dealer permit
for wreckfish, as required under Sec. 622.4(a)(4).
(7) A dealer may receive a wreckfish only from a vessel for which a
commercial permit for wreckfish has been issued, as required under
Sec. 622.4(a)(2)(vii). A dealer must receive the ``Fish House'' part of
ITQ coupons in amounts totaling the eviscerated weight of the wreckfish
received; enter the permit number of the vessel from which the wreckfish
were received, enter the date the wreckfish were received, enter the
dealer's permit number, and sign each such ``Fish House'' part; and
submit all such parts with the dealer reports required by
Sec. 622.5(c)(5)(i).
(8) An owner or operator of a vessel and a dealer must make
available to an authorized officer all ITQ coupons in his or her
possession upon request.
(d) Wreckfish limitations. (1) A wreckfish taken in the South
Atlantic EEZ may not be transferred at sea, regardless of where the
transfer takes place; and a wreckfish may not be transferred in the
South Atlantic EEZ.
(2) A wreckfish possessed by a fisherman or dealer shoreward of the
outer boundary of the South Atlantic EEZ or in a South Atlantic coastal
state will be presumed to have been harvested from the South Atlantic
EEZ unless accompanied by documentation that it was harvested from other
than the South Atlantic EEZ.
(3) A wreckfish may be offloaded from a fishing vessel only between
8 a.m. and 5 p.m., local time.
(4) If a wreckfish is to be offloaded at a location other than a
fixed facility of a dealer who holds a dealer permit for wreckfish, as
required under Sec. 622.4(a)(4), the wreckfish shareholder or the vessel
operator must advise the NMFS, Office of Enforcement, Southeast Region,
St. Petersburg, FL, by telephone (1-800-853-1964), of the location not
less than 24 hours prior to offloading.
[61 FR 34934, July 3, 1996, as amended at 64 FR 59126, Nov. 2, 1999]
Sec. 622.16 Red snapper individual transferable quota (ITQ) system.
The ITQ system established by this section will remain in effect
through March 31, 2000, during which time NMFS and the GMFMC will
evaluate the effectiveness of the system. Based on the evaluation, the
system may be modified, extended, or terminated.
(a) Percentage shares. (1) Initial percentage shares of the annual
quota of red snapper are assigned to persons in accordance with the
procedure specified in Amendment 8 to the Fishery Management Plan for
the Reef Fish Fishery of the Gulf of Mexico (FMP) and in paragraphs
(c)(1) through (c)(4) of this section. Each person is notified by the RD
of his or her initial percentage shares. If additional shares become
available to NMFS, such as by forfeiture pursuant to subpart F of 15 CFR
part 904 for rule violations, such shares will be proportionately
reissued to shareholders based on their shares as of November 1, after
the additional shares become available. If NMFS is required to issue
additional shares, such as may be required in the resolution of
disputes, existing shares will be proportionately reduced. This
reduction of shares will be based on shares as of November 1 after the
required addition of shares.
(2) All or a portion of a person's percentage shares may be
transferred to another person who is a U.S. citizen or permanent
resident alien. (See paragraph (c)(5) of this section for restrictions
on the transfer of shares in the initial months under the ITQ system.)
Transfer of shares must be reported on
[[Page 156]]
a form available from the RD. The RD will confirm, in writing, the
registration of each transfer. The effective date of each transfer is
the confirmation date provided by the RD. The confirmation of
registration date will normally be not later than 3 working days after
receipt of a properly completed transfer form. However, reports of share
transfers received by the RD from November 1 through December 31 will
not be recorded or confirmed until after January 1. A fee is charged for
each transfer of percentage shares. The amount of the fee is calculated
in accordance with the procedures of the NOAA Finance Handbook for
determining the administrative costs of each special product or service
provided by NOAA to non-Federal recipients. The fee may not exceed such
costs and is specified with each transfer form. The appropriate fee must
accompany each transfer form.
(3) On or about January 1 each year, the RD will provide each red
snapper shareholder with a list of all red snapper shareholders and
their percentage shares, reflecting share transfers as indicated on
properly completed transfer forms received through October 31. Updated
lists may be obtained at other times, and by persons who are not red
snapper shareholders, by written request to the RD.
(b) ITQs. (1) Annually, as soon after November 15 as the following
year's red snapper quota is established, the RD will calculate each red
snapper shareholder's ITQ in terms of eviscerated weight. Each ITQ is
the product of the red snapper quota, in round weight, for the ensuing
fishing year, the factor for converting round weight to eviscerated
weight, and each red snapper shareholder's percentage share, reflecting
share transfers reported on forms received by the RD through October 31.
(2) The RD will provide each red snapper shareholder with ITQ
coupons in various denominations, the total of which equals his or her
ITQ, and a copy of the calculations used in determining his or her ITQ.
Each coupon will be coded to indicate the initial recipient.
(3) An ITQ coupon may be transferred. If the transfer is by sale,
the seller must enter the sale price on the coupon.
(4) Except when the red snapper bag limit applies, red snapper in or
from the EEZ or on board a vessel that has been issued a commercial
permit for Gulf reef fish, as required under Sec. 622.4(a)(2)(v), may
not be possessed in an amount, in eviscerated weight, exceeding the
total of ITQ coupons on board. (See Sec. 622.39(a) for applicability of
the bag limit.)
(5) Prior to termination of a trip, the operator's signature and the
date signed must be written in ink on the ``Vessel'' part of ITQ coupons
totaling at least the eviscerated weight of the red snapper on board. An
owner or operator of a vessel must separate the ``Vessel'' part of each
such coupon, enter thereon the permit number of the dealer to whom the
red snapper are transferred, and submit the ``Vessel'' parts with the
logbook forms for that fishing trip. An owner or operator of a vessel
must make available to an authorized officer all ITQ coupons in his or
her possession upon request.
(6) Red snapper harvested from the EEZ or possessed by a vessel with
a commercial permit for Gulf reef fish, as required under
Sec. 622.4(a)(2)(v), may be transferred only to a dealer with a Gulf
reef fish permit, as required under Sec. 622.4(a)(4). The ``Fish House''
part of each ITQ coupon must be given to such dealer, or the agent or
employee of such dealer, in amounts totaling at least the eviscerated
weight of the red snapper transferred to that dealer.
(7) A dealer with a Gulf reef fish permit may receive red snapper
only from a vessel that has on board a commercial permit for Gulf reef
fish. A dealer, or the agent or employee of a dealer, must receive the
``Fish House'' part of ITQ coupons totaling at least the eviscerated
weight of the red snapper received. Immediately upon receipt of red
snapper, the dealer, or the agent or employee of the dealer, must enter
the permit number of the vessel received from and date and sign each
such ``Fish House'' part. The dealer must submit all such parts as
required by paragraph (d)(6) of this section. A dealer, agent, or
employee must make available to an authorized officer all ITQ coupons in
his or her possession upon request.
[[Page 157]]
(c) Procedures for implementation--(1) Initial shareholders. The
following persons are initial shareholders in the red snapper ITQ
system:
(i) Either the owner or operator of a vessel with a valid permit on
August 29, 1995, provided such owner or operator had a landing of red
snapper during the period 1990 through 1992. If the earned income of an
operator was used to qualify for the permit that is valid on August 29,
1995, such operator is the initial shareholder rather than the owner. In
the case of an owner, the term ``person'' includes a corporation or
other legal entity; and
(ii) A historical captain. A historical captain means an operator
who meets all of the following qualifications:
(A) From November 6, 1989, through 1993, fished solely under verbal
or written share agreements with an owner, and such agreements provided
for the operator to be responsible for hiring the crew, who was paid
from the share under his or her control.
(B) Landed from that vessel at least 5,000 lb (2,268 kg) of red
snapper per year in 2 of the 3 years 1990, 1991, and 1992.
(C) Derived more than 50 percent of his or her earned income from
commercial fishing, that is, sale of the catch, in each of the years
1989 through 1993.
(D) Landed red snapper prior to November 7, 1989.
(2) Initial shares. (i) Initial shares are apportioned to initial
shareholders based on each shareholder's average of the top 2 years'
landings in 1990, 1991, and 1992. However, no person who is an initial
shareholder under paragraph (c)(1) of this section will receive an
initial percentage share that will amount to less than 100 lb (45.36
kg), round weight, of red snapper (90 lb (41 kg), eviscerated weight).
(ii) The percentage shares remaining after the minimum shares have
been calculated under paragraph (c)(2)(i) of this section are
apportioned based on each remaining shareholder's average of the top 2
years' landings in 1990, 1991, and 1992. In a case where a landing is
associated with an owner and a historical captain, such landing is
apportioned between the owner and historical captain in accordance with
the share agreement in effect at the time of the landing.
(iii) The determinations of landings of red snapper during the
period 1990 through 1992 and historical captain status are made in
accordance with the data collected under Amendment 9 to the FMP. Those
data identify each red snapper landing during the period 1990 through
1992. Each landing is associated with an owner and, when an operator's
earned income was used to qualify for the vessel permit at the time of
the landing, with such operator. Where appropriate, a landing is also
associated with a historical captain. However, a red snapper landings
record during that period that is associated solely with an owner may be
retained by that owner or transferred as follows:
(A) An owner of a vessel with a valid commercial permit for Gulf
reef fish on August 29, 1995, who transferred a vessel permit to another
vessel owned by him or her will retain the red snapper landings record
for the previous vessel.
(B) An owner of a vessel with a valid commercial permit for Gulf
reef fish on August 29, 1995, will retain the landings record of a
permitted vessel if the vessel had a change of ownership to another
entity without a substantive change in control of the vessel. It will be
presumed that there was no substantive change in control of a vessel if
a successor in interest received at least a 50 percent interest in the
vessel as a result of the change of ownership whether the change of
ownership was--
(1) From a closely held corporation to its majority shareholder;
(2) From an individual who became the majority shareholder of a
closely held corporation receiving the vessel;
(3) Between closely held corporations with a common majority
shareholder; or
(4) From one to another of the following: Husband, wife, son,
daughter, brother, sister, mother, or father.
(C) In other cases of transfer of a permit through change of
ownership of a vessel, an owner of a vessel with a valid commercial
permit for Gulf reef fish on August 29, 1995, will receive credit for
the landings record of the vessel before his or her ownership only if
there is a legally binding agreement for transfer of the landings
record.
[[Page 158]]
(iv) Requests for transfers of landings records must be submitted to
the RD and must be postmarked not later than December 14, 1995. The RD
may require documentation supporting such request. After considering
requests for transfers of landings records, the RD will advise each
initial shareholder or applicant of his or her tentative allocation of
shares.
(3) Notification of status. The RD will advise each owner, operator,
and historical captain for whom NMFS has a record of a red snapper
landing during the period 1990 through 1992, including those who
submitted such record under Amendment 9 to the FMP, of his or her
tentative status as an initial shareholder and the tentative landings
record that will be used to calculate his or her initial share.
(4) Appeals. (i) A special advisory panel, appointed by the GMFMC to
function as an appeals board, will consider written requests from
persons who contest their tentative status as an initial shareholder,
including historical captain status, or tentative landings record. In
addition to considering written requests, the board may allow personal
appearances by such persons before the board.
(ii) The panel is only empowered to consider disputed calculations
or determinations based on documentation submitted under Amendment 9 to
the FMP regarding landings of red snapper during the period 1990 through
1992, including transfers of such landings records, or regarding
historical captain status. In addition, the panel may consider
applications and documentation of landings not submitted under Amendment
9 if, in the board's opinion, there is justification for the late
application and documentation. The board is not empowered to consider an
application from a person who believes he or she should be eligible
because of hardship or other factors.
(iii) A written request for consideration by the board must be
submitted to the RD, postmarked not later than December 27, 1995, and
must contain documentation supporting the allegations that form the
basis for the request.
(iv) The board will meet as necessary to consider each request that
is submitted in a timely manner. Members of the appeals board will
provide their individual recommendations for each appeal to the GMFMC,
which will in turn submit its recommendation to the RD. The board and
the GMFMC will recommend whether the eligibility criteria, specified in
Amendment 8 to the FMP and paragraphs (c)(1) and (c)(2) of this section,
were correctly applied in each case, based solely on the available
record including documentation submitted by the applicant. The GMFMC
will also base its recommendation on the recommendations of the board.
The RD will decide the appeal based on the above criteria and the
available record, including documentation submitted by the applicant and
the recommendation of the GMFMC. The RD will notify the appellant of his
decision and the reason therefor, in writing, normally within 45 days of
receiving the GMFMC's recommendation. The RD's decision will constitute
the final administrative action by NMFS on an appeal.
(v) Upon completion of the appeal process, the RD will issue share
certificates to initial shareholders.
(5) Transfers of shares. The following restrictions apply to the
transfer of shares:
(i) The transfer of shares is prohibited through September 30, 1996.
(ii) From October 1, 1996, through September 30, 1997, shares may be
transferred only to other persons who are initial shareholders and are
U.S. citizens or permanent resident aliens.
(d) Exceptions/additions to general measures. Other provisions of
this part notwithstanding--
(1) Management of the red snapper ITQ system extends to adjoining
state waters in the manner stated in paragraphs (d)(2) and (d)(3) of
this section.
(2) For a dealer to receive red snapper harvested from state waters
adjoining the Gulf EEZ by or possessed on board a vessel with a
commercial permit for Gulf reef fish, the dealer permit for Gulf reef
fish specified in Sec. 622.4(a)(4) must have been issued to the dealer.
(3) A copy of the dealer's permit must accompany each vehicle that
is used to
[[Page 159]]
pick up from a fishing vessel red snapper from adjoining state waters
harvested by or possessed on board a vessel with a commercial permit for
Gulf reef fish.
(4) As a condition of a commercial vessel permit for Gulf reef fish,
without regard to where red snapper are harvested or possessed, a vessel
with such permit must comply with the red snapper ITQ requirements of
paragraph (b) of this section; may not transfer or receive red snapper
at sea; and must maintain red snapper with head and fins intact through
landing, and the exceptions to that requirement contained in
Sec. 622.38(d) do not apply to red snapper. Red snapper may be
eviscerated, gilled, and scaled but must otherwise be maintained in a
whole condition.
(5) As a condition of a dealer permit for Gulf reef fish, as
required under Sec. 622.4(a)(4) or under paragraph (d)(2) of this
section, without regard to where red snapper are harvested or possessed,
a permitted dealer must comply with the red snapper ITQ requirements of
paragraph (b) of this section.
(6) In any month that a red snapper is received, a dealer must
submit the report required under Sec. 622.5(c)(3)(ii). The ``Fish
House'' parts of red snapper individual transferable coupons, received
during the month in accordance with paragraph (b) of this section, must
be submitted to the SRD with the report.
(7) It is unlawful for a person to do any of the following:
(i) Receive red snapper from a fishing vessel without a dealer
permit for Gulf reef fish.
(ii) Fail to carry a copy of the dealer's permit, as specified in
paragraph (d)(3) of this section.
(iii) Fail to comply with a condition of a permit, as specified in
paragraph (d)(4) or (d)(5) of this section.
(iv) Fail to report red snapper received, as specified in paragraph
(d)(6) of this section.
Effective Date Note: At 61 FR 48415, Sept. 13, 1996, Sec. 622.16 was
stayed indefinitely.
Sec. 622.17 South Atlantic golden crab controlled access.
(a) General. In accordance with the procedures specified in the
Fishery Management Plan for the Golden Crab Fishery of the South
Atlantic Region, initial vessel permits have been issued for the
fishery. No additional permits may be issued.
(b) Fishing zones. (1) The South Atlantic EEZ is divided into three
fishing zones for golden crab. A permitted vessel may fish for golden
crab only in the zone shown on its permit. A vessel may possess golden
crab only in that zone, except that other zones may be transited if the
vessel notifies NMFS, Office of Enforcement, Southeast Region, St.
Petersburg, FL, by telephone (813-570-5344) in advance and does not fish
in an unpermitted zone. The designated fishing zones are as follows:
(i) Northern zone--the South Atlantic EEZ north of 28 deg. N. lat.
(ii) Middle zone--the South Atlantic EEZ from 25 deg. N. lat. to
28 deg. N. lat.
(iii) Southern zone--the South Atlantic EEZ south of 25 deg. N. lat.
(2) An owner of a permitted vessel may request that NMFS change the
zone specified on a permit from the middle or southern zone to the
northern zone. A request for such change and the existing permit must be
submitted from an owner of a permitted vessel to the RA.
(c) Transfer. (1) An owner of a vessel with a valid golden crab
permit may request that NMFS transfer the permit to another vessel by
returning the existing permit(s) to the RA with an application for a
permit for the replacement vessel.
(2) To obtain a commercial vessel permit via transfer, the owner of
the replacement vessel must submit to the RA a valid permit for a vessel
with a documented length overall, or permits for vessels with documented
aggregate lengths overall, of at least 90 percent of the documented
length overall of the replacement vessel.
(3) In addition to the provisions of paragraph (c)(2) of this
section, the owner of a permitted vessel who has requested that NMFS
transfer that permit to a smaller vessel (i.e., downsized) may
subsequently request NMFS transfer that permit to a vessel of a length
calculated from the length of the permitted vessel immediately prior to
downsizing.
(d) Renewal. In addition to the procedures and requirements of
Sec. 622.4(h) for commercial vessel permit renewals, for
[[Page 160]]
a golden crab permit to be renewed, the SRD must have received reports
for the permitted vessel, as required by Sec. 622.5(a)(1)(v),
documenting that at least 5,000 lb (2,268 kg) of golden crab were landed
from the South Atlantic EEZ by the permitted vessel during at least one
of the two 12-month periods immediately prior to the expiration date of
the vessel permit.
[63 FR 57590, Oct. 28, 1998, as amended at 64 FR 59126, Nov. 2, 1999]
Sec. 622.18 South Atlantic snapper-grouper limited access.
(a) Applicability. Beginning December 14, 1998, the only valid
commercial vessel permits for South Atlantic snapper-grouper are those
that have been issued under the limited access criteria in this section.
A vessel may have either a transferable commercial permit or a trip-
limited commercial permit for South Atlantic snapper-grouper.
(b) Initial eligibility. A vessel is eligible for an initial limited
access commercial permit for South Atlantic snapper-grouper if the owner
owned a vessel with a commercial vessel permit for South Atlantic
snapper-grouper at any time from February 11, 1996, through February 11,
1997, and owned a permitted vessel that had at least one landing of
snapper-grouper from the South Atlantic from January 1, 1993, through
August 20, 1996, as reported on fishing vessel logbooks received by the
SRD on or before August 20, 1996. An owner whose permitted vessels had
landings of snapper-grouper from the South Atlantic of at least 1,000 lb
(453.6 kg), whole weight, in any one of the years 1993, 1994, or 1995,
or in 1996 through August 20, as reported on fishing vessel logbooks
received by the SRD on or before August 20, 1996, is eligible for an
initial transferable permit. All other qualifying owners are eligible
for an initial trip-limited permit.
(c) Determinations of eligibility--(1) Permit history. The sole
basis for determining whether a vessel had a commercial vessel permit
for South Atlantic snapper-grouper at any time from February 11, 1996,
through February 11, 1997, is NMFS' permit records. An owner of a
currently permitted vessel who believes he/she meets the February 11,
1996, through February 11, 1997, permit history criterion based on
ownership of a vessel under a different name, as may have occurred when
ownership has changed from individual to corporate or vice versa, must
document his/her continuity of ownership. No more than one owner of a
currently permitted vessel will be credited with meeting the permit
history criterion based on a vessel's permit history.
(2) Landings. (i) Landings of snapper-grouper from the South
Atlantic during the qualifying period are determined from fishing vessel
logbooks received by the SRD on or before August 20, 1996. State trip
ticket data may be considered in support of claimed landings provided
such trip ticket data were received by the state on or before September
20, 1996.
(ii) Only landings when a vessel had a valid commercial permit for
snapper-grouper and only landings that were harvested, landed, and sold
in compliance with state and Federal regulations may be used to
establish eligibility.
(iii) For the purpose of eligibility for a limited access commercial
permit for snapper-grouper, the owner of a vessel that had a commercial
snapper-grouper permit during the qualifying period retains the snapper-
grouper landings record of that vessel during the time of his/her
ownership unless a sale of the vessel included a written agreement that
credit for such landings was transferred to the new owner. Such transfer
of credit must be for the vessel's entire record of landings of snapper-
grouper from the South Atlantic.
(d) Implementation procedures--(1) Notification of status. On or
about July 27, 1998, the RA will notify each owner of a vessel that had
a commercial permit for South Atlantic snapper-grouper at any time from
February 11, 1996, through February 11, 1997, and each owner of a vessel
that has a commercial permit for South Atlantic snapper-grouper on July
16, 1998, of NMFS' initial determination of eligibility for either a
transferable or a trip-limited, limited access commercial permit for
South Atlantic snapper-grouper. Each notification will include an
application
[[Page 161]]
for such permit. Addresses for such notifications will be based on NMFS'
permit records. A vessel owner who believes he/she qualifies for a
limited access commercial permit for South Atlantic snapper-grouper and
who does not receive such notification must obtain an application from
the RA.
(2) Applications. (i) An owner of a vessel who desires a limited
access commercial permit for South Atlantic snapper-grouper must submit
an application for such permit postmarked or hand-delivered not later
than October 14, 1998. Failure to apply in a timely manner will preclude
permit issuance even when the vessel owner meets the eligibility
criteria for such permit.
(ii) A vessel owner who agrees with NMFS' initial determination of
eligibility, including type of permit (transferable or trip-limited),
need provide no documentation of eligibility with his/her application.
(iii) A vessel owner who disagrees with the initial determination of
eligibility or type of permit must specify the type of permit applied
for and provide documentation of eligibility. Documentation and other
information submitted on or with an application are subject to
verification by comparison with state, Federal, and other records and
information. Submission of false documentation or information may
disqualify an owner from initial participation in the limited access
commercial South Atlantic snapper-grouper fishery and is a violation of
the regulations in this part.
(iv) If an application that is postmarked or hand delivered in a
timely manner is incomplete, the RA will notify the vessel owner of the
deficiency. If the owner fails to correct the deficiency within 20 days
of the date of the RA's notification, the application will be considered
abandoned.
(3) Issuance. (i) If a complete application is submitted in a timely
manner and the eligibility requirements specified in paragraph (b) of
this section are met, the RA will issue an initial commercial vessel
permit, transferable or trip-limited, as appropriate, and mail it to the
vessel owner not later than December 3, 1998.
(ii) If the eligibility requirements specified in paragraph (b) of
this section are not met, the RA will notify the vessel owner, in
writing, not later than November 13, 1998 of such determination and the
reasons for it.
(4) Reconsideration. (i) A vessel owner may request reconsideration
of the RA's determination regarding initial permit eligibility by
submitting a written request for reconsideration to the RA. Such request
must be postmarked or hand delivered within 20 days of the date of the
RA's notification denying initial permit issuance and must provide
written documentation supporting permit eligibility.
(ii) Upon receipt of a request for reconsideration, the RA will
forward the initial application, the RA's response to that application,
the request for reconsideration, and pertinent records to an Application
Oversight Board consisting of state directors (or their designees) from
each state in the Council's area of jurisdiction. Upon request, a vessel
owner may make a personal appearance before the Application Oversight
Board.
(iii) If reconsideration by the Application Oversight Board is
requested, such request constitutes the vessel owner's written
authorization under section 402(b)(1)(F) of the Magnuson-Stevens Act for
the RA to make available to the Application Oversight Board members such
confidential catch and other records as are pertinent to the matter
under reconsideration.
(iv) The Application Oversight Board may only deliberate whether the
eligibility criteria specified in paragraph (b) of this section were
applied correctly in the vessel owner's case, based solely on the
available record, including documentation submitted by the owner. The
Application Oversight Board may not consider whether an owner should
have been eligible for a commercial vessel permit because of hardship or
other factors. The Application Oversight Board members will provide
individual recommendations for each application for reconsideration to
the RA.
(v) The RA will make a final decision based on the eligibility
criteria specified in paragraph (b) of this section and the available
record, including documentation submitted by the vessel owner, and the
recommendations and
[[Page 162]]
comments from members of the Application Oversight Board. The RA may not
consider whether a vessel owner should have been eligible for a
commercial vessel permit because of hardship or other factors. The RA
will notify the owner of the decision and the reason for it, in writing,
within 15 days of receiving the recommendations from the Application
Oversight Board members. The RA's decision will constitute the final
administrative action by NMFS.
(e) Transfers of permits. A snapper-grouper limited access permit is
valid only for the vessel and owner named on the permit. To change
either the vessel or the owner, an application for transfer must be
submitted to the RA.
(1) Transferable permits. (i) An owner of a vessel with a
transferable permit may request that the RA transfer the permit to
another vessel owned by the same entity.
(ii) A transferable permit may be transferred upon a change of
ownership of a permitted vessel with such permit from one to another of
the following: Husband, wife, son, daughter, brother, sister, mother, or
father.
(iii) A transferable permit may be transferred to a vessel whose
owner had, as of August 20, 1996, a written contract for the purchase of
a vessel that included a provision transferring to the new owner the
rights to any limited access permit to which the former owner might
become entitled under the provisions for initial issue of limited access
permits. To be considered, any such written contract must be submitted
to the RA postmarked or hand-delivered on or before December 14, 1998.
(iv) Except as provided in paragraphs (e)(1)(i), (ii), and (iii) of
this section, a person desiring to acquire a limited access,
transferable permit for South Atlantic snapper-grouper must obtain and
exchange two such permits for one new permit.
(v) A transfer of a permit that is undertaken under paragraph
(e)(1)(ii), (e)(1)(iii), or (e)(1)(iv) of this section will constitute a
transfer of the vessel's entire catch history to the new owner.
(2) Trip-limited permits. An owner of a vessel with a triplimited
permit may request that the RA transfer the permit to another vessel
owned by the same entity.
(f) Renewal. NMFS will not reissue a commercial vessel permit for
South Atlantic snapper-grouper if the permit is revoked or if the RA
does not receive an application for renewal within 60 days of the
permit's expiration date.
[63 FR 38301, July 16, 1998, as amended at 64 FR 59126, Nov. 2, 1999; 65
FR 51252, Aug. 23, 2000]
Subpart C--Management Measures
Sec. 622.30 Fishing years.
The fishing year for species or species groups governed in this part
is January 1 through December 31 except for the following:
(a) Allowable octocoral-- October 1 through September 30.
(b) King and Spanish mackerel. The fishing year for the king and
Spanish mackerel bag limits specified in Sec. 622.39(c)(1) is January 1
through December 31. The following fishing years apply only for the king
and Spanish mackerel quotas specified in Sec. 622.42(c):
(1) Gulf migratory group king mackerel-- July 1 through June 30.
(2) All other migratory groups of king and Spanish mackerel-- April
1 through March 31.
(c) Wreckfish-- April 16 through April 15.
(d) South Atlantic greater amberjack--May 1 through April 30.
[61 FR 34934, July 3, 1996, as amended at 64 FR 3627, Jan. 25, 1999]
Sec. 622.31 Prohibited gear and methods.
In addition to the prohibited gear/methods specified in this
section, see Secs. 622.33, 622.34, and 622.35 for seasonal/area
prohibited gear/methods and Sec. 622.41 for species specific authorized
and unauthorized gear/methods.
(a) Explosives. An explosive (except an explosive in a powerhead)
may not be used to fish in the Caribbean, Gulf, or South Atlantic EEZ. A
vessel fishing in the EEZ for a species governed in this part, or a
vessel for which a permit has been issued under Sec. 622.4, may not have
on board any dynamite or similar explosive substance.
[[Page 163]]
(b) Chemicals and plants. A toxic chemical may not be used or
possessed in a coral area, and a chemical, plant, or plant-derived toxin
may not be used to harvest a Caribbean coral reef resource in the
Caribbean EEZ.
(c) Fish traps. (1) A fish trap may not be used in the South
Atlantic EEZ.
(2) A fish trap may not be used or possessed in the Gulf EEZ west of
85 deg.30' W. long. and, after February 7, 2007, may not be used or
possessed in the Gulf EEZ.
(3) A fish trap used other than where authorized in paragraph (c)
(1) or (2) of this section may be disposed of in any appropriate manner
by the Assistant Administrator or an authorized officer.
(d) Longlines for wreckfish. A bottom longline may not be used to
fish for wreckfish in the South Atlantic EEZ. A person aboard a vessel
that has a longline on board may not retain a wreckfish in or from the
South Atlantic EEZ. For the purposes of this paragraph, a vessel is
considered to have a longline on board when a power-operated longline
hauler, a cable of diameter suitable for use in the longline fishery
longer than 1.5 mi (2.4 km) on any reel, and gangions are on board.
Removal of any one of these three elements constitutes removal of a
longline.
(e) Poisons. (1) A poison, drug, or other chemical may not be used
to fish for Caribbean reef fish in the Caribbean EEZ.
(2) A poison may not be used to take Gulf reef fish in the Gulf EEZ.
(3) A poison may not be used to fish for South Atlantic snapper-
grouper in the South Atlantic EEZ.
(f) Power-assisted tools. A power-assisted tool may not be used in
the Caribbean EEZ to take a Caribbean coral reef resource or in the Gulf
or South Atlantic EEZ to take allowable octocoral, prohibited coral, or
live rock.
(g) Powerheads. A powerhead may not be used in the Caribbean EEZ to
harvest Caribbean reef fish or in the EEZ off South Carolina to harvest
South Atlantic snapper-grouper. The possession of a mutilated Caribbean
reef fish in or from the Caribbean EEZ, or a mutilated South Atlantic
snapper-grouper in or from the EEZ off South Carolina, and a powerhead
is prima facie evidence that such fish was harvested by a powerhead.
(h) Rebreathers and spearfishing gear. In the South Atlantic EEZ, a
person using a rebreather may not harvest South Atlantic snapper-grouper
with spearfishing gear. The possession of such snapper-grouper while in
the water with a rebreather is prima facie evidence that such fish was
harvested with spearfishing gear while using a rebreather.
(i) Sea bass pots. A sea bass pot may not be used in the South
Atlantic EEZ south of 28 deg.35.1' N. lat. (due east of the NASA Vehicle
Assembly Building, Cape Canaveral, FL). A sea bass pot deployed in the
EEZ south of 28 deg.35.1' N. lat. may be disposed of in any appropriate
manner by the Assistant Administrator or an authorized officer.
(j) Spears and hooks. A spear, hook, or similar device may not be
used in the Caribbean EEZ to harvest a Caribbean spiny lobster. The
possession of a speared, pierced, or punctured Caribbean spiny lobster
in or from the Caribbean EEZ is prima facie evidence of violation of
this section.
[61 FR 34934, July 3, 1996, as amended at 62 FR 13987, Mar. 25, 1997; 63
FR 10567, Mar. 4, 1998; 63 FR 57590, Oct. 28, 1998]
Effective Date Note: At 65 FR 56502, Sept. 19, 2000, Sec. 622.31 was
amended by adding paragraph (k), effective Sept. 14, 2000 through Mar.
18, 2001. For the convenience of the user, the added text follows:
Sec. 622.31 Prohibited gear and methods.
* * * * *
(k) Traps for royal red shrimp in the Gulf EEZ. A trap may not be
used to fish for royal red shrimp in the Gulf EEZ. A trap used to fish
for royal red shrimp in the Gulf EEZ may be disposed of in any
appropriate manner by the Assistant Administrator or an authorized
officer.
Sec. 622.32 Prohibited and limited-harvest species.
(a) General. The harvest and possession restrictions of this section
apply without regard to whether the species is harvested by a vessel
operating under a commercial vessel permit. The operator of a vessel
that fishes in the
[[Page 164]]
EEZ is responsible for the limit applicable to that vessel.
(b) Prohibited species. Prohibited species, by geographical area,
are as follows:
(1) Caribbean. (i) Caribbean prohibited coral may not be fished for
or possessed in or from the Caribbean EEZ. The taking of Caribbean
prohibited coral in the Caribbean EEZ is not considered unlawful
possession provided it is returned immediately to the sea in the general
area of fishing.
(ii) Foureye, banded, and longsnout butterflyfish; jewfish; Nassau
grouper; and seahorses may not be harvested or possessed in or from the
Caribbean EEZ. Such fish caught in the Caribbean EEZ must be released
immediately with a minimum of harm.
(iii) Egg-bearing spiny lobster in the Caribbean EEZ must be
returned to the water unharmed. An egg-bearing spiny lobster may be
retained in a trap, provided the trap is returned immediately to the
water. An egg-bearing spiny lobster may not be stripped, scraped,
shaved, clipped, or in any other manner molested, in order to remove the
eggs.
(2) Gulf. (i) Gulf and South Atlantic prohibited coral taken as
incidental catch in the Gulf EEZ must be returned immediately to the sea
in the general area of fishing. In fisheries where the entire catch is
landed unsorted, such as the scallop and groundfish fisheries, unsorted
prohibited coral may be landed ashore; however, no person may sell or
purchase such prohibited coral.
(ii) Jewfish may not be harvested or possessed in or from the Gulf
EEZ.
(iii) Red drum and Nassau grouper may not be harvested or possessed
in or from the Gulf EEZ. Such fish caught in the Gulf EEZ must be
released immediately with a minimum of harm.
(3) Mid-Atlantic. Red drum may not be harvested or possessed in or
from the Mid-Atlantic EEZ south of a line extending in a direction of
115 deg. from true north commencing at a point at 40 deg.29.6' N. lat.,
73 deg.54.1' W. long., such point being the intersection of the New
Jersey/New York boundary with the 3- nm line denoting the seaward limit
of state waters. Red drum caught in such portion of the Mid-Atlantic EEZ
must be released immediately with a minimum of harm.
(4) South Atlantic. (i) Gulf and South Atlantic prohibited coral
taken as incidental catch in the South Atlantic EEZ must be returned
immediately to the sea in the general area of fishing. In fisheries
where the entire catch is landed unsorted, such as the scallop and
groundfish fisheries, unsorted prohibited coral may be landed ashore;
however, no person may sell or purchase such prohibited coral.
(ii) Jewfish and Nassau grouper may not be harvested or possessed in
or from the South Atlantic EEZ. Jewfish and Nassau grouper taken in the
South Atlantic EEZ incidentally by hook-and-line must be released
immediately by cutting the line without removing the fish from the
water.
(iii) Red drum may not be harvested or possessed in or from the
South Atlantic EEZ. Red drum caught in the South Atlantic EEZ must be
released immediately with a minimum of harm.
(iv) Wild live rock may not be harvested or possessed in the South
Atlantic EEZ.
(v) It is intended that no female golden crabs in or from the South
Atlantic EEZ be retained on board a vessel and that any female golden
crab in or from the South Atlantic EEZ be released in a manner that will
ensure maximum probability of survival. However, to accommodate
legitimate incidental catch and retention, the number of female golden
crabs in or from the South Atlantic EEZ retained on board a vessel may
not exceed 0.5 percent, by number, of all golden crabs on board. See
Sec. 622.45(f)(1) regarding the prohibition of sale of female golden
crabs.
(vi) South Atlantic snapper-grouper may not be possessed in whole,
gutted, or filleted form by a person aboard a vessel fishing for or
possessing golden crab in or from the South Atlantic EEZ or possessing a
golden crab trap in the South Atlantic. Only the head, fins, and
backbone (collectively the ``rack'') of South Atlantic snapper-grouper
may be possessed for use as bait.
(c) Limited-harvest species. A person who fishes in the EEZ may not
combine a harvest limitation specified in this paragraph (c) with a
harvest limitation applicable to state waters. A
[[Page 165]]
species subject to a harvest limitation specified in this paragraph (c)
taken in the EEZ may not be transferred at sea, regardless of where such
transfer takes place, and such species may not be transferred in the
EEZ.
(1) Cobia. No person may possess more than two cobia per day in or
from the Gulf, Mid-Atlantic, or South Atlantic EEZ, regardless of the
number of trips or duration of a trip.
(2) Cubera snapper. No person may harvest more than two cubera
snapper measuring 30 inches (76.2 cm), TL, or larger, per day in the
South Atlantic EEZ off Florida and no more than two such cubera snapper
in or from the South Atlantic EEZ off Florida may be possessed on board
a vessel at any time.
(3) Speckled hind and warsaw grouper. The possession of speckled
hind and warsaw grouper in or from the South Atlantic EEZ is limited to
one of each per vessel per trip.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43959, Aug. 27, 1996; 62
FR 13988, Mar. 25, 1997; 63 FR 10567, Mar. 4, 1998]
Sec. 622.33 Caribbean EEZ seasonal and/or area closures.
(a) Seasonal closures. (1) Mutton snapper spawning aggregation area.
From March 1 through June 30, each year, fishing is prohibited in that
part of the following area that is in the EEZ. The area is bounded by
rhumb lines connecting, in order, the points listed.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 17 deg.37.8'............. 64 deg.53.0'
B................. 17 deg.39.0'............. 64 deg.53.0'
C................. 17 deg.39.0'............. 64 deg.50.5'
D................. 17 deg.38.1'............. 64 deg.50.5'
E................. 17 deg.37.8'............. 64 deg.52.5'
A................. 17 deg.37.8'............. 64 deg.53.0'
------------------------------------------------------------------------
(2) Red hind spawning aggregation areas. From December 1 through
February 28, each year, fishing is prohibited in those parts of the
following areas that are in the EEZ. Each area is bounded by rhumb lines
connecting, in order, the points listed.
(i) East of St. Croix.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 17 deg.50.2'............. 64 deg.27.9'
B................. 17 deg.50.1'............. 64 deg.26.1'
C................. 17 deg.49.2'............. 64 deg.25.8'
D................. 17 deg.48.6'............. 64 deg.25.8'
E................. 17 deg.48.1'............. 64 deg.26.1'
F................. 17 deg.47.5'............. 64 deg.26.9'
A................. 17 deg.50.2'............. 64 deg.27.9'
------------------------------------------------------------------------
(ii) West of Puerto Rico--(A) Bajo de Cico.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 18 deg.15.7'............. 67 deg.26.4'
B................. 18 deg.15.7'............. 67 deg.23.2'
C................. 18 deg.12.7'............. 67 deg.23.4'
D................. 18 deg.12.7'............. 67 deg.26.4'
A................. 18 deg.15.7'............. 67 deg.26.47
------------------------------------------------------------------------
(B) Tourmaline Bank.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 18 deg.11.2'............. 67 deg.22.4'
B................. 18 deg.11.2'............. 67 deg.19.2'
C................. 18 deg.08.2'............. 67 deg.19.2'
D................. 18 deg.08.2'............. 67 deg.22.4'
A................. 18 deg.11.2'............. 67 deg.22.4'
------------------------------------------------------------------------
(C) Abrir La Sierra Bank.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 18 deg.06.5'............. 67 deg.26.9'
B................. 18 deg.06.5'............. 67 deg.23.9'
C................. 18 deg.03.5'............. 67 deg.23.9'
D................. 18 deg.03.5'............. 67 deg.26.9'
A................. 18 deg.06.5'............. 67 deg.26.9'
------------------------------------------------------------------------
(3) Queen conch closure. From July 1 through September 30, each
year, no person may fish for queen conch in the Caribbean EEZ and no
person may possess on board a fishing vessel a queen conch in or from
the Caribbean EEZ.
(b) Year-round area closures. (1) Hind Bank Marine Conservation
District (MCD). The following activities are prohibited within the Hind
Bank MCD: Fishing for any species, and anchoring by fishing vessels. The
Hind Bank MCD is bounded by rhumb lines connecting, in order, the points
listed.
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................. 18 deg.13.2'............. 65 deg.06.0'
B................. 18 deg.13.2'............. 64 deg.59.0'
C................. 18 deg.11.8'............. 64 deg.59.0'
D................. 18 deg.10.7'............. 65 deg.06.0'
A................. 18 deg.13.2'............. 65 deg.06.0'
------------------------------------------------------------------------
(2) [Reserved]
[64 FR 60133, Nov. 4, 1999]
Sec. 622.34 Gulf EEZ seasonal and/or area closures.
(a) Alabama SMZ. The Alabama SMZ consists of artificial reefs and
surrounding areas. In the Alabama SMZ,
[[Page 166]]
fishing by a vessel that is operating as a charter vessel or headboat, a
vessel that does not have a commercial permit for Gulf reef fish, as
required under Sec. 622.4(a)(2), or a vessel with such a permit fishing
for Gulf reef fish is limited to hook-and-line gear with three or fewer
hooks per line and spearfishing gear. A person aboard a vessel that uses
on any trip gear other than hook-and-line gear with three or fewer hooks
per line and spearfishing gear in the Alabama SMZ is limited on that
trip to the bag limits for Gulf reef fish specified in Sec. 622.39(b)
and, for Gulf reef fish for which no bag limit is specified in
Sec. 622.39(b), the vessel is limited to 5 percent, by weight, of all
fish on board or landed. The Alabama SMZ is bounded by rhumb lines
connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................................... 30 deg.02.5' 88 deg.07.7'
B........................................... 30 deg.02.6' 87 deg.59.3'
C........................................... 29 deg.55.0' 87 deg.55.5'
D........................................... 29 deg.54.5' 88 deg.07.5'
A........................................... 30 deg.02.5' 88 deg.07.7'
------------------------------------------------------------------------
(b) Florida middle grounds HAPC. Fishing with a bottom longline,
bottom trawl, dredge, pot, or trap is prohibited year round in the area
bounded by rhumb lines connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................................... 28 deg.42.5' 84 deg.24.8'
B........................................... 28 deg.42.5' 84 deg.16.3'
C........................................... 28 deg.11.0' 84 deg.00.0'
D........................................... 28 deg.11.0' 84 deg.07.0'
E........................................... 28 deg.26.6' 84 deg.24.8'
A........................................... 28 deg.42.5' 84 deg.24.8'
------------------------------------------------------------------------
(c) Reef fish longline and buoy gear restricted area. A person
aboard a vessel that uses, on any trip, longline or buoy gear in the
longline and buoy gear restricted area is limited on that trip to the
bag limits for Gulf reef fish specified in Sec. 622.39(b)(1) and, for
Gulf reef fish for which no bag limit is specified in Sec. 622.39(b)(1),
the vessel is limited to 5 percent, by weight, of all fish on board or
landed. The longline and buoy gear restricted area is that part of the
Gulf EEZ shoreward of rhumb lines connecting, in order, the points
listed in Table 1, in Appendix B of this part.
(d) Riley's Hump seasonal closure. From May 1 through June 30, each
year, fishing is prohibited in the following area bounded by rhumb lines
connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................................... 24 deg.32.2' 83 deg.08.7'
B........................................... 24 deg.32.2' 83 deg.05.2'
C........................................... 24 deg.28.7' 83 deg.05.2'
D........................................... 24 deg.28.7' 83 deg.08.7'
A........................................... 24 deg.32.2' 83 deg.08.7'
------------------------------------------------------------------------
(e) Shrimp/stone crab separation zones. Five zones are established
in the Gulf EEZ and Florida's waters off Citrus and Hernando Counties
for the separation of shrimp trawling and stone crab trapping. Although
Zone II is entirely within Florida's waters, it is included in this
paragraph (e) for the convenience of fishermen. Restrictions that apply
to Zone II and those parts of the other zones that are in Florida's
waters are contained in Rule 46-38.001, Florida Administrative Code.
Geographical coordinates of the points referred to in this paragraph (e)
are as follows:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................................... 28 deg.59'30 82 deg.45'36
" "
B........................................... 28 deg.59'30 83 deg.00'10
" "
C........................................... 28 deg.26'01 82 deg.59'47
" "
D........................................... 28 deg.26'01 82 deg.56'54
" "
E........................................... 28 deg.41'39 82 deg.55'25
" "
F........................................... 28 deg.41'39 82 deg.56'09
" "
G........................................... 28 deg.48'56 82 deg.56'19
" "
H........................................... 28 deg.53'51 82 deg.51'19
" "
I \1\....................................... 28 deg.54'43 82 deg.44'52
" "
J \2\....................................... 28 deg.51'09 82 deg.44'00
" "
K........................................... 28 deg.50'59 82 deg.54'16
" "
L........................................... 28 deg.41'39 82 deg.53'56
" "
M \3\....................................... 28 deg.41'39 82 deg.38'46
" "
N........................................... 28 deg.41'39 82 deg.53'12
" "
O........................................... 28 deg.30'51 82 deg.55'11
" "
P........................................... 28 deg.40'00 82 deg.53'08
" "
Q........................................... 28 deg.40'00 82 deg.47'58
" "
R........................................... 28 deg.35'14 82 deg.47'47
" "
S........................................... 28 deg.30'51 82 deg.52'55
" "
T........................................... 28 deg.27'46 82 deg.55'09
" "
U........................................... 28 deg.30'51 82 deg.52'09
" "
------------------------------------------------------------------------
\1\ Crystal River Entrance Light 1A.
\2\ Long Pt. (southwest tip).
\3\ Shoreline.
(1) Zone I is enclosed by rhumb lines connecting, in order, points
A, B, C, D, T, E, F, G, H, I, and J, plus the shoreline between points A
and J. It is unlawful to trawl in that part of Zone I that is in the EEZ
from October 5 through May 20, each year.
(2) Zone II is enclosed by rhumb lines connecting, in order, points
J, I, H, K, L, and M, plus the shoreline between points J and M.
[[Page 167]]
(3) Zone III is enclosed by rhumb lines connecting, in order, points
P, Q, R, U, S, and P. It is unlawful to trawl in that part of Zone III
that is in the EEZ from October 5 through May 20, each year.
(4) Zone IV is enclosed by rhumb lines connecting, in order, points
E, N, S, O, and E.
(i) It is unlawful to place a stone crab trap in that part of Zone
IV that is in the EEZ from October 5 through December 1 and from April 2
through May 20, each year.
(ii) It is unlawful to trawl in that part of Zone IV that is in the
EEZ from December 2 through April 1, each year.
(5) Zone V is enclosed by rhumb lines connecting, in order, points
F, G, K, L, and F.
(i) It is unlawful to place a stone crab trap in that part of Zone V
that is in the EEZ from October 5 through November 30 and from March 16
through May 20, each year.
(ii) It is unlawful to trawl in that part of Zone V that is in the
EEZ from December 1 through March 15, each year.
(f) Southwest Florida seasonal trawl closure. From January 1 to 1
hour after official sunset on May 20, each year, trawling, including
trawling for live bait, is prohibited in that part of the Gulf EEZ
shoreward of rhumb lines connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
B \1\....................................... 26 deg.16.0' 81 deg.58.5'
C........................................... 26 deg.00.0' 82 deg.04.0'
D........................................... 25 deg.09.0' 81 deg.47.6'
E........................................... 24 deg.54.5' 81 deg.50.5'
M \1\....................................... 24 deg.49.3' 81 deg.46.4'
------------------------------------------------------------------------
\1\ On the seaward limit of Florida's waters.
(g) Reef fish stressed area. The stressed area is that part of the
Gulf EEZ shoreward of rhumb lines connecting, in order, the points
listed in Table 2, in Appendix B of this part.
(1) A powerhead may not be used in the stressed area to take Gulf
reef fish. Possession of a powerhead and a mutilated Gulf reef fish in
the stressed area or after having fished in the stressed area
constitutes prima facie evidence that such reef fish was taken with a
powerhead in the stressed area. The provisions of this paragraph do not
apply to the following species: dwarf sand perch, hogfish, and sand
perch.
(2) A roller trawl may not be used in the stressed area. Roller
trawl means a trawl net equipped with a series of large, solid rollers
separated by several smaller spacer rollers on a separate cable or line
(sweep) connected to the footrope, which makes it possible to fish the
gear over rough bottom, that is, in areas unsuitable for fishing
conventional shrimp trawls. Rigid framed trawls adapted for shrimping
over uneven bottom, in wide use along the west coast of Florida, and
shrimp trawls with hollow plastic rollers for fishing on soft bottoms,
are not considered roller trawls.
(3) A fish trap may not be used in the stressed area. A fish trap
used in the stressed area will be considered unclaimed or abandoned
property and may be disposed of in any appropriate manner by the
Assistant Administrator (including an authorized officer).
(h) Texas closure. (1) From 30 minutes after official sunset on May
15 to 30 minutes after official sunset on July 15, trawling, except
trawling for royal red shrimp beyond the 100-fathom (183-m) depth
contour, is prohibited in the Gulf EEZ off Texas.
(2) In accordance with the procedures and restrictions of the
Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico,
the RA may adjust the closing and/or opening date of the Texas closure
to provide an earlier, later, shorter, or longer closure, but the
duration of the closure may not exceed 90 days or be less than 45 days.
Notification of the adjustment of the closing or opening date will be
published in the Federal Register.
(i) Tortugas shrimp sanctuary. (1) The Tortugas shrimp sanctuary is
closed to trawling. The Tortugas shrimp sanctuary is that part of the
EEZ off Florida shoreward of rhumb lines connecting, in order, the
following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
N \1\....................................... 25 deg.52.9' 81 deg.37.9'
F........................................... 24 deg.50.7' 81 deg.51.3'
G \2\....................................... 24 deg.40.1' 82 deg.26.7'
H \3\....................................... 24 deg.34.7' 82 deg.35.2'
P \4\....................................... 24 deg.35.0' 82 deg.08.0'
------------------------------------------------------------------------
\1\ Coon Key Light.
\2\ New Ground Rocks Light.
[[Page 168]]
\3\ Rebecca Shoal Light.
\4\ Marquessas Keys.
(2) The provisions of paragraph (i)(1) of this section
notwithstanding--
(i) Effective from April 11 through September 30, each year, that
part of the Tortugas shrimp sanctuary seaward of rhumb lines connecting
the following points is open to trawling: From point T at 24 deg.47.8'
N. lat., 82 deg.01.0' W. long. to point U at 24 deg.43.83' N. lat.,
82 deg.01.0' W. long. (on the line denoting the seaward limit of
Florida's waters); thence along the seaward limit of Florida's waters,
as shown on the current edition of NOAA chart 11439, to point V at
24 deg.42.55' N. lat., 82 deg.15.0' W. long.; thence north to point W at
24 deg.43.6' N. lat., 82 deg.15.0' W. long.
(ii) Effective from April 11 through July 31, each year, that part
of the Tortugas shrimp sanctuary seaward of rhumb lines connecting the
following points is open to trawling: From point W to point V, both
points as specified in paragraph (i)(2)(i) of this section, to point G,
as specified in paragraph (i)(1) of this section.
(iii) Effective from May 26 through July 31, each year, that part of
the Tortugas shrimp sanctuary seaward of rhumb lines connecting the
following points is open to trawling: From point F, as specified in
paragraph (i)(1) of this section, to point Q at 24 deg.46.7' N. lat.,
81 deg.52.2' W. long. (on the line denoting the seaward limit of
Florida's waters); thence along the seaward limit of Florida's waters,
as shown on the current edition of NOAA chart 11439, to point U and
north to point T, both points as specified in paragraph (i)(2)(i) of
this section.
(j) West and East Flower Garden Banks HAPC. Fishing with a bottom
longline, bottom trawl, dredge, pot, or trap is prohibited year-round in
the HAPC. The West and East Flower Garden Banks are geographically
centered at 27 deg.52'14.21" N. lat., 93 deg.48'54.79" W. long. and
27 deg.55'07.44" N. lat., 93 deg.36'08.49" W. long., respectively. The
HAPC extends from these centers to the 50-fathom (300-ft) (91.4-m)
isobath.
(k) Closure of the Madison and Swanson sites and Steamboat Lumps. No
person may fish within the Madison and Swanson sites or Steamboat Lumps
for any species of fish except highly migratory species. Highly
migratory species means tuna species, marlin (Tetrapturus spp. and
Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and
swordfish (Xiphias gladius). This prohibition is effective through June
16, 2004. For the purpose of this paragraph (k), fish means finfish,
mollusks, crustaceans, and all other forms of marine animal and plant
life other than marine mammals and birds. The Madison and Swanson sites
are bounded by rhumb lines connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................................. 29 deg.17' 85 deg.50'
B................................. 29 deg.17' 85 deg.38'
C................................. 29 deg.06' 85 deg.38'
D................................. 29 deg.06' 85 deg.50'
A................................. 29 deg.17' 85 deg.50'
------------------------------------------------------------------------
Steamboat Lumps is bounded by rhumb lines connecting, in order, the
following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A................................. 28 deg.14' 84 deg.48'
B................................. 28 deg.14' 84 deg.37'
C................................. 28 deg.03' 84 deg.37'
D................................. 28 deg.03' 84 deg.48'
A................................. 28 deg.14' 84 deg.48'
------------------------------------------------------------------------
(l) Closures of the commercial fishery for red snapper. The
commercial fishery for red snapper in or from the Gulf EEZ is closed
from January 1 to noon on February 1 and thereafter from noon on the
10th of each month to noon on the first of each succeeding month until
the quota specified in Sec. 622.42(a)(1)(i)(A) is reached or until noon
on October 1, whichever occurs first. From October 1 to December 1, the
commercial fishery for red snapper in or from the Gulf EEZ is closed
from noon on the 10th of each month to noon on the first of each
succeeding month until the quota specified in Sec. 622.42(a)(1)(i)(B) is
reached or until the end of the fishing year, whichever occurs first.
All times are local times. During these closed periods, the possession
of red snapper in or from the Gulf EEZ and in the Gulf on board a vessel
for which a commercial permit for Gulf reef fish has been issued, as
required under Sec. 622.4(a)(2)(v), without regard to
[[Page 169]]
where such red snapper were harvested, is limited to the bag and
possession limits, as specified in Sec. 622.39(b)(1)(iii) and (b)(2),
respectively, and such red snapper are subject to the prohibition on
sale or purchase of red snapper possessed under the bag limit, as
specified in Sec. 622.45(c)(1). However, when the recreational quota for
red snapper has been reached and the bag and possession limit has been
reduced to zero, the limit for such possession during a closed period is
zero.
(m) Closures of the recreational fishery for red snapper. The
recreational fishery for red snapper in or from the Gulf EEZ is closed
from January 1 through April 20 and from November 1 through December 31.
During a closure, the bag and possession limit for red snapper in or
from the Gulf EEZ is zero.
(n) [Reserved]
(o) Seasonal closure of the commercial fishery for gag, red grouper,
and black grouper. From February 15 to March 15, each year, no person
aboard a vessel for which a valid Federal commercial permit for Gulf
reef fish has been issued may possess gag, red grouper, or black grouper
in the Gulf, regardless of where harvested. However, a person aboard a
vessel for which the permit indicates both charter vessel/headboat for
Gulf reef fish and commercial Gulf reef fish may continue to retain gag,
red grouper, and black grouper under the bag and possession limit
specified in Sec. 622.39(b), provided the vessel is operating as a
charter vessel or headboat. From February 15 until March 15, each year,
the sale or purchase of gag, red grouper, or black grouper is prohibited
as specified in Sec. 622.45(c)(4).
(p) Closures of the Gulf group king mackerel gillnet fishery. The
gillnet fishery for Gulf group king mackerel in or from the Gulf EEZ is
closed each fishing year from July 1 until 6:00 a.m. on the day after
the Martin Luther King Jr. Federal holiday. The gillnet fishery also is
closed during all subsequent weekends and observed Federal holidays,
except for the first weekend following the Martin Luther King Jr.
holiday which will remain open to the gillnet fishery provided a
notification of closure of that fishery has not been filed under
Sec. 622.43(a). Weekend closures are effective from 6:00 a.m. Saturday
to 6:00 a.m. Monday. Holiday closures are effective from 6:00 a.m. on
the observed Federal holiday to 6:00 a.m. the following day. All times
are eastern standard time. During these closures, a person aboard a
vessel using or possessing a gillnet with a stretched-mesh size of 4.75
inches (12.1 cm) or larger in the southern Florida west coast subzone
may not fish for or possess Gulf group king mackerel.
[61 FR 34934, July 3, 1996, as amended at 61 FR 48642, Sept. 16, 1996;
62 FR 46679, Sept. 4, 1997; 62 FR 47767, Sept. 11, 1997; 62 FR 67722,
Dec. 30, 1997; 64 FR 47713, Sept. 1, 1999; 64 FR 57404, Oct. 25, 1999;
64 FR 59126, Nov. 2, 1999; 65 FR 30363, May 11, 2000; 65 FR 31830, May
19, 2000; 65 FR 50162, Aug. 17, 2000]
Sec. 622.35 South Atlantic EEZ seasonal and/or area closures.
(a) Allowable octocoral closed area. No person may harvest or
possess allowable octocoral in the South Atlantic EEZ north of
28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly Building,
Cape Canaveral, FL).
(b) Longline closed areas. A longline may not be used to fish in the
EEZ for South Atlantic snapper-grouper south of 27 deg.10' N. lat. (due
east of the entrance to St. Lucie Inlet, FL); or north of 27 deg.10' N.
lat. where the charted depth is less than 50 fathoms (91.4 m), as shown
on the latest edition of the largest scale NOAA chart of the location. A
person aboard a vessel with a longline on board that fishes on a trip in
the South Atlantic EEZ south of 27 deg.10' N. lat., or north of
27 deg.10' N. lat. where the charted depth is less than 50 fathoms (91.4
m), is limited on that trip to the bag limit for South Atlantic snapper-
grouper for which a bag limit is specified in Sec. 622.39(d)(1), and to
zero for all other South Atlantic snapper-grouper. For the purpose of
this paragraph, a vessel is considered to have a longline on board when
a power-operated longline hauler, a cable or monofilament of diameter
and length suitable for use in the longline fishery, and gangions are on
board. Removal of any one of these three elements constitutes removal of
a longline.
(c) Oculina Bank--(1) HAPC. The Oculina Bank HAPC encompasses an
area bounded on the north by 28 deg.30' N. lat., on the south by
27 deg.30' N. lat., on
[[Page 170]]
the east by the 100-fathom (183-m) contour, as shown on the latest
edition of NOAA chart 11460, and on the west by 80 deg.00' W. long.; and
two adjacent areas: the first bounded on the north by 28 deg.30' N.
lat., on the south by 28 deg.29' N. lat., on the east by 80 deg.00' W.
long., and on the west by 80 deg.03' W. long.; and the second bounded on
the north by 28 deg.17' N. lat., on the south by 28 deg.16' N. lat., on
the east by 80 deg.00 W. long., and on the west by 80 deg.03' W. long.
In the Oculina Bank HAPC, no person may:
(i) Use a bottom longline, bottom trawl, dredge, pot, or trap.
(ii) If aboard a fishing vessel, anchor, use an anchor and chain, or
use a grapple and chain.
(iii) Fish for rock shrimp or possess rock shrimp in or from the
area on board a fishing vessel.
(2) Experimental closed area. Within the Oculina Bank HAPC, the
experimental closed area is bounded on the north by 27 deg.53' N. lat.,
on the south by 27 deg.30' N. lat., on the east by 79 deg.56' W. long.,
and on the west by 80 deg.00' W. long. No person may fish for South
Atlantic snapper-grouper in the experimental closed area, and no person
may retain South Atlantic snapper-grouper in or from the area. In the
experimental closed area, any South Atlantic snapper-grouper taken
incidentally by hook-and-line gear must be released immediately by
cutting the line without removing the fish from the water.
(d) South Atlantic shrimp cold weather closure. (1) Pursuant to the
procedures and criteria established in the FMP for the Shrimp Fishery of
the South Atlantic Region, when Florida, Georgia, North Carolina, or
South Carolina closes all or a portion of its waters of the South
Atlantic to the harvest of brown, pink, and white shrimp, the Assistant
Administrator may concurrently close the South Atlantic EEZ adjacent to
the closed state waters by filing a notification of closure with the
Office of the Federal Register. Closure of the adjacent EEZ will be
effective until the ending date of the closure in state waters, but may
be ended earlier based on the state's request. In the latter case, the
Assistant Administrator will terminate a closure of the EEZ by filing a
notification to that effect with the Office of the Federal Register.
(2) During a closure, as specified in paragraph (d)(1) of this
section--
(i) No person may trawl for brown shrimp, pink shrimp, or white
shrimp in the closed portion of the EEZ (closed area); and no person may
possess on board a fishing vessel brown shrimp, pink shrimp, or white
shrimp in or from a closed area, except as authorized in paragraph
(d)(2)(iii) of this section.
(ii) No person aboard a vessel trawling in that part of a closed
area that is within 25 nm of the baseline from which the territorial sea
is measured may use or have on board a trawl net with a mesh size less
than 4 inches (10.2 cm), as measured between the centers of opposite
knots when pulled taut.
(iii) Brown shrimp, pink shrimp, or white shrimp may be possessed on
board a fishing vessel in a closed area, provided the vessel is in
transit and all trawl nets with a mesh size less than 4 inches (10.2
cm), as measured between the centers of opposite knots when pulled taut,
are stowed below deck while transiting the closed area. For the purpose
of this paragraph, a vessel is in transit when it is on a direct and
continuous course through a closed area.
(e) SMZs. (1) The SMZs consist of artificial reefs and surrounding
areas as follows:
(i) Paradise Reef is bounded on the north by 33 deg.31.59' N. lat.;
on the south by 33 deg.30.51' N. lat.; on the east by 78 deg.57.55' W.
long.; and on the west by 78 deg.58.85' W. long.
(ii) Ten Mile Reef is bounded on the north by 33 deg.26.65' N. lat.;
on the south by 33 deg.24.80' N. lat.; on the east by 78 deg.51.08' W.
long.; and on the west by 78 deg.52.97' W. long.
(iii) Pawleys Island Reef is bounded on the north by 33 deg.26.58'
N. lat.; on the south by 33 deg.25.76' N. lat.; on the east by
79 deg.00.29' W. long.; and on the west by 79 deg.01.24' W. long.
(iv) Georgetown Reef is bounded on the north by 33 deg.14.90' N.
lat.; on the south by 33 deg.13.85' N. lat.; on the east by
78 deg.59.45' W. long.; and on the west by 79 deg.00.65' W. long.
(v) Capers Reef is bounded on the north by 32 deg.45.45' N. lat.; on
the south by 32 deg.43.91' N. lat.; on the east by
[[Page 171]]
79 deg.33.81' W. long.; and on the west by 79 deg.35.10' W. long.
(vi) Kiawah Reef is bounded on the north by 32 deg.29.78' N. lat.;
on the south by 32 deg.28.25' N. lat.; on the east by 79 deg.59.00' W.
long.; and on the west by 80 deg.00.95' W. long.
(vii) Edisto Offshore Reef is bounded on the north by 32 deg.15.30'
N. lat.; on the south by 32 deg.13.90' N. lat.; on the east by
79 deg.50.25' W. long.; and on the west by 79 deg.51.45' W. long.
(viii) Hunting Island Reef is bounded on the north by 32 deg.13.72'
N. lat.; on the south by 32 deg.12.30' N. lat.; on the east by
80 deg.19.23' W. long.; and on the west by 80 deg.21.00' W. long.
(ix) Fripp Island Reef is bounded on the north by 32 deg.15.92' N.
lat.; on the south by 32 deg.14.75' N. lat.; on the east by
80 deg.21.62' W. long.; and on the west by 80 deg.22.90' W. long.
(x) Betsy Ross Reef is bounded on the north by 32 deg.03.60' N.
lat.; on the south by 32 deg.02.88' N. lat.; on the east by
80 deg.24.57' W. long.; and on the west by 80 deg.25.50' W. long.
(xi) Hilton Head Reef/Artificial Reef--T is bounded on the north by
32 deg.00.71' N. lat.; on the south by 31 deg.59.42' N. lat.; on the
east by 80 deg.35.23' W. long.; and on the west by 80 deg.36.37' W.
long.
(xii) Artificial Reef--A is bounded on the north by 30 deg.56.4' N.
lat.; on the south by 30 deg.55.2' N. lat.; on the east by 81 deg.15.4'
W. long.; and on the west by 81 deg.16.5' W. long.
(xiii) Artificial Reef--C is bounded on the north by 30 deg.51.4' N.
lat.; on the south by 30 deg.50.1' N. lat.; on the east by 81 deg.09.1'
W. long.; and on the west by 81 deg.10.4' W. long.
(xiv) Artificial Reef--G is bounded on the north by 30 deg.59.1' N.
lat.; on the south by 30 deg.57.8' N. lat.; on the east by 80 deg.57.7'
W. long.; and on the west by 80 deg.59.2' W. long.
(xv) Artificial Reef--F is bounded on the north by 31 deg.06.6' N.
lat.; on the south by 31 deg.05.6' N. lat.; on the east by 81 deg.11.4'
W. long.; and on the west by 81 deg.13.3' W. long.
(xvi) Artificial Reef--J is bounded on the north by 31 deg.36.7' N.
lat.; on the south by 31 deg.35.7' N. lat.; on the east by 80 deg.47.0'
W. long.; and on the west by 80 deg.48.1' W. long.
(xvii) Artificial Reef--L is bounded on the north by 31 deg.46.2' N.
lat.; on the south by 31 deg.45.1' N. lat.; on the east by 80 deg.35.8'
W. long.; and on the west by 80 deg.37.1' W. long.
(xviii) Artificial Reef--KC is bounded on the north by 31 deg.51.2'
N. lat.; on the south by 31 deg.50.3' N. lat.; on the east by
80 deg.46.0' W. long.; and on the west by 80 deg.47.2' W. long.
(xix) Ft. Pierce Inshore Reef is bounded on the north by
27 deg.26.8' N. lat.; on the south by 27 deg.25.8' N. lat.; on the east
by 80 deg.09.24' W. long.; and on the west by 80 deg.10.36' W. long.
(xx) Ft. Pierce Offshore Reef is bounded by rhumb lines connecting,
in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................................... 27 deg.23.68 80 deg.03.95
' '
B........................................... 27 deg.22.80 80 deg.03.60
' '
C........................................... 27 deg.23.94 80 deg.00.02
' '
D........................................... 27 deg.24.85 80 deg.00.33
' '
A........................................... 27 deg.23.68 80 deg.03.95
' '
------------------------------------------------------------------------
(xxi) Key Biscayne/Artificial Reef--H is bounded on the north by
25 deg.42.82' N. lat.; on the south by 25 deg.41.32' N. lat.; on the
east by 80 deg.04.22' W. long.; and on the west by 80 deg.05.53' W.
long.
(xxii) Little River Offshore Reef is bounded on the north by
33 deg.42.10' N. lat.; on the south by 33 deg.41.10' N. lat.; on the
east by 78 deg.26.40' W. long.; and on the west by 78 deg.27.10' W.
long.
(xxiii) BP-25 Reef is bounded on the north by 33 deg.21.70' N. lat.;
on the south by 33 deg.20.70' N. lat.; on the east by 78 deg.24.80' W.
long.; and on the west by 78 deg.25.60' W. long.
(xxiv) Vermilion Reef is bounded on the north by 32 deg.57.80' N.
lat.; on the south by 32 deg.57.30' N. lat.; on the east by
78 deg.39.30' W. long.; and on the west by 78 deg.40.10' W. long.
(xxv) Cape Romaine Reef is bounded on the north by 33 deg.00.00' N.
lat.; on the south by 32 deg.59.50' N. lat.; on the east by
79 deg.02.01' W. long.; and on the west by 79 deg.02.62' W. long.
(xxvi) Y-73 Reef is bounded on the north by 32 deg.33.20' N. lat.;
on the south by 32 deg.32.70' N. lat.; on the east by 79 deg.19.10' W.
long.; and on the west by 79 deg.19.70' W. long.
(xxvii) Eagles Nest Reef is bounded on the north by 32 deg.01.48' N.
lat.; on the south by 32 deg.00.98' N. lat.; on the east by
80 deg.30.00' W. long.; and on the west by 80 deg.30.65' W. long.
[[Page 172]]
(xxviii) Bill Perry Jr. Reef is bounded on the north by
33 deg.26.20' N. lat.; on the south by 33 deg.25.20' N. lat.; on the
east by 78 deg.32.70' W. long.; and on the west by 78 deg.33.80' W.
long.
(xxix) Comanche Reef is bounded on the north by 32 deg.27.40' N.
lat.; on the south by 32 deg.26.90' N. lat.; on the east by
79 deg.18.80' W. long.; and on the west by 79 deg.19.60' W. long.
(xxx) Murrel's Inlet 60 Foot Reef is bounded on the north by
33 deg.17.50' N. lat.; on the south by 33 deg.16.50' N. lat.; on the
east by 78 deg.44.67' W. long.; and on the west by 78 deg.45.98' W.
long.
(xxxi) Georgetown 95 Foot Reef is bounded on the north by
33 deg.11.75' N. lat.; on the south by 33 deg.10.75' N. lat.; on the
east by 78 deg.24.10' W. long.; and on the west by 78 deg.25.63' W.
long.
(xxxii) New Georgetown 60 Foot Reef is bounded on the north by
33 deg.09.25' N. lat.; on the south by 33 deg.07.75' N. lat.; on the
east by 78 deg.49.95' W. long.; and on the west by 78 deg.51.45' W.
long.
(xxxiii) North Inlet 45 Foot Reef is bounded on the north by
33 deg.21.03' N. lat.; on the south by 33 deg.20.03' N. lat.; on the
east by 79 deg.00.31' W. long.; and on the west by 79 deg.01.51' W.
long.
(xxxiv) CJ Davidson Reef is bounded on the north by 33 deg.06.48' N.
lat.; on the south by 33 deg.05.48' N. lat.; on the east by
79 deg.00.27' W. long.; and on the west by 79 deg.01.39' W. long.
(xxxv) Greenville Reef is bounded on the north by 32 deg.57.25' N.
lat.; on the south by 32 deg.56.25' N. lat.; on the east by
78 deg.54.25' W. long.; and on the west by 78 deg.55.25' W. long.
(xxxvi) Charleston 60 Foot Reef is bounded on the north by
32 deg.33.60' N. lat.; on the south by 32 deg.32.60' N. lat.; on the
east by 79 deg.39.70' W. long.; and on the west by 79 deg.40.90' W.
long.
(xxxvii) Edisto 60 Foot Reef is bounded on the north by
32 deg.21.75' N. lat.; on the south by 32 deg.20.75' N. lat.; on the
east by 80 deg.04.10' W. longitude; and on the west by 80 deg.05.70' W.
long.
(xxxviii) Edisto 40 Foot Reef is bounded on the north by
32 deg.25.78' N. lat.; on the south by 32 deg.24.78' N. lat.; on the
east by 80 deg.11.24' W. long.; and on the west by 80 deg.12.32' W.
long.
(xxxix) Beaufort 45 Foot Reef is bounded on the north by
32 deg.07.65' N. lat.; on the south by 32 deg.06.65' N. lat.; on the
east by 80 deg.28.80' W. long.; and on the west by 80 deg.29.80' W.
long.
(2) The use of a sea bass pot or a bottom longline is prohibited in
each of the SMZs. The following additional restrictions apply in the
indicated SMZs:
(i) In the SMZs specified in paragraphs (e)(1)(i) through
(e)(1)(xviii) and (e)(1)(xxii) through (e)(1)(xxxix) of this section,
the use of a gillnet or a trawl is prohibited, and fishing may be
conducted only with handline, rod and reel, and spearfishing gear.
(ii) In SMZs specified in paragraphs (e)(1) (xix) and (xx) of this
section, a hydraulic or electric reel that is permanently affixed to the
vessel is prohibited when fishing for South Atlantic snapper-grouper.
(iii) In the SMZs specified in paragraphs (e)(1) (xix) and (xxi) of
this section, the use of spearfishing gear is prohibited.
(iv) In the SMZs specified in paragraphs (e)(1)(i) through
(e)(1)(x), (e)(1)(xx), and (e)(1)(xxii) through (e)(1)(xxxix) of this
section, a powerhead may not be used to take South Atlantic snapper-
grouper. Possession of a powerhead and a mutilated South Atlantic
snapper-grouper in one of the specified SMZs, or after having fished in
one of the SMZs, constitutes prima facie evidence that such fish was
taken with a powerhead in the SMZ.
(f) Golden crab trap closed areas. In the golden crab northern zone,
a golden crab trap may not be deployed in waters less than 900 ft (274
m) deep. In the golden crab middle and southern zones, a golden crab
trap may not be deployed in waters less than 700 ft (213 m) deep. See
Sec. 622.17(b) for specification of the golden crab zones.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43959, Aug. 27, 1996; 61
FR 47449, Sept. 9, 1996; 63 FR 10567, Mar. 4, 1998; 63 FR 57590, Oct.
28, 1998; 63 FR 71794, Dec. 30, 1998; 65 FR 37295, June 14, 2000]
Sec. 622.36 Seasonal harvest limitations.
(a) Gulf EEZ. During March, April, and May, each year, the
possession of greater amberjack in or from the Gulf EEZ and in the Gulf
on board a vessel for which a commercial permit for Gulf reef fish has
been issued, as required under Sec. 622.4(a)(2)(v), without regard to
where such greater amberjack were
[[Page 173]]
harvested, is limited to the bag and possession limits, as specified in
Sec. 622.39(b)(1)(i) and (b)(2), respectively, and such greater
amberjack are subject to the prohibition on sale or purchase of greater
amberjack possessed under the bag limit, as specified in
Sec. 622.45(c)(1).
(b) South Atlantic EEZ--(1) Greater amberjack spawning season.
During April, each year, the possession of greater amberjack in or from
the South Atlantic EEZ and in the South Atlantic on board a vessel for
which a valid Federal commercial or charter vessel/headboat permit for
South Atlantic snapper-grouper has been issued, without regard to where
such greater amberjack were harvested, is limited to one per person per
day or one per person per trip, whichever is more restrictive. Such
greater amberjack are subject to the prohibition on sale or purchase, as
specified in Sec. 622.45(d)(6).
(2) Mutton snapper spawning season. During May and June, each year,
the possession of mutton snapper in or from the EEZ on board a vessel
that has a commercial permit for South Atlantic snapper-grouper is
limited to 10 per person per day or 10 per person per trip, whichever is
more restrictive.
(3) Wreckfish spawning-season closure. From January 15 through April
15, each year, no person may harvest or possess on a fishing vessel
wreckfish in or from the EEZ; offload wreckfish from the EEZ; or sell or
purchase wreckfish in or from the EEZ. The prohibition on sale or
purchase of wreckfish does not apply to trade in wreckfish that were
harvested, offloaded, and sold or purchased prior to January 15 and were
held in cold storage by a dealer or processor.
(4) Black grouper and gag. During March and April, each year, the
possession of black grouper and gag in or from the South Atlantic EEZ
and in the South Atlantic on board a vessel for which a valid Federal
commercial or charter vessel/headboat permit for South Atlantic snapper-
grouper has been issued, without regard to where such black grouper or
gag were harvested, is limited to two black grouper or gag, combined,
per person per day or two black grouper or gag, combined, per person per
trip, whichever is more restrictive. Such black grouper or gag are
subject to the prohibition on sale or purchase, as specified in
Sec. 622.45(d)(5).
(5) Red porgy. During January, February, March, and April, each
year, the harvest or possession of red porgy in or from the South
Atlantic EEZ, and in the South Atlantic on board a vessel for which a
valid Federal commercial or charter vessel/headboat permit for South
Atlantic snapper-grouper has been issued without regard to where such
red porgy were harvested, is limited to one per person per day or one
per person per trip, whichever is more restrictive. Such red porgy are
subject to the prohibition on sale or puchase, as specified in
Sec. 622.45(d)(5).
[61 FR 34934, July 3, 1996, as amended at 62 FR 67723, Dec. 30, 1997; 64
FR 3627, Jan. 25, 1999; 65 FR 51252, Aug. 23, 2000]
Sec. 622.37 Size limits.
All size limits in this section are minimum size limits unless
specified otherwise. Except for undersized king and Spanish mackerel
allowed in paragraphs (c)(2) and (c)(3) of this section, a fish not in
compliance with its size limit, as specified in this section, in or from
the Caribbean, Gulf, South Atlantic, and/or Mid-Atlantic EEZ, as
appropriate, may not be possessed, sold, or purchased. A fish not in
compliance with its size limit must be released immediately with a
minimum of harm. The operator of a vessel that fishes in the EEZ is
responsible for ensuring that fish on board are in compliance with the
size limits specified in this section.
(a) Caribbean reef fish: Yellowtail snapper--12 inches (30.5 cm),
TL.
(b) Caribbean spiny lobster--3.5 inches (8.9 cm), carapace length.
(c) Coastal migratory pelagic fish. (1) Cobia in the Gulf, Mid-
Atlantic, or South Atlantic--33 inches (83.8 cm), fork length.
(2) King mackerel in the Gulf, South Atlantic, or Mid-Atlantic--24
inches (61.0 cm), fork length, except that a vessel fishing under a
quota for king mackerel specified in Sec. 622.42(c)(1) may possess
undersized king mackerel in quantities not exceeding 5 percent, by
weight, of the king mackerel on board.
[[Page 174]]
(3) Spanish mackerel in the Gulf, South Atlantic, or Mid-Atlantic--
12 inches (30.5 cm), fork length, except that a vessel fishing under a
quota for Spanish mackerel specified in Sec. 622.42(c)(2) may possess
undersized Spanish mackerel in quantities not exceeding 5 percent, by
weight, of the Spanish mackerel on board.
(d) Gulf reef fish--(1) Snapper. (i) Lane snapper--8 inches (20.3
cm), TL.
(ii) Vermilion snapper--10 inches (25.4 cm), TL.
(iii) Cubera, dog, gray, mahogany, and yellowtail snappers and
schoolmaster--12 inches (30.5 cm), TL.
(iv) Red snapper--16 inches (40.6 cm), TL, for a fish taken by a
person subject to the bag limit specified in Sec. 622.39(b)(1)(iii) and
15 inches (38.1 cm), TL, for a fish taken by a person not subject to the
bag limit.
(v) Mutton snapper--16 inches (40.6 cm), TL.
(2) Grouper. (i) Scamp--16 inches (40.6 cm), TL.
(ii) Red grouper and yellowfin grouper--20 inches (50.8 cm), TL.
(iii) Black grouper and gag--(A) For a person not subject to the bag
limit specified in Sec. 622.39(b)(1)(ii)--24 inches (61.0 cm), TL.
(B) For a person subject to the bag limit specified in
Sec. 622.39(b)(1)(ii)--22 inches (55.9 cm), TL.
(3) Other Gulf reef fish species. (i) Gray triggerfish--12 inches
(30.5 cm), TL.
(ii) Hogfish--12 inches (30.5 cm), fork length.
(iii) Banded rudderfish and lesser amberjack--14 inches (35.6 cm),
fork length (minimum size); 22 inches (55.9 cm), fork length (maximum
size).
(iv) Greater amberjack--28 inches (71.1 cm), fork length, for a fish
taken by a person subject to the bag limit specified in
Sec. 622.39(b)(1)(i); and 36 inches (91.4 cm), fork length, for a fish
taken by a person not subject to the bag limit.
(e) South Atlantic snapper-grouper--(1) Snapper. (i) Lane snapper--8
inches (20.3 cm), TL.
(ii) Vermilion snapper--11 inches (27.9 cm), TL, for a fish taken by
a person subject to the bag limit specified in Sec. 622.39 (d)(1)(v) and
12 inches (30.5 cm), TL, for a fish taken by a person not subject to the
bag limit.
(iii) Blackfin, cubera, dog, gray, mahogany, queen, silk, and
yellowtail snappers; and schoolmaster--12 inches (30.5 cm), TL.
(iv) Mutton snapper--16 inches (40.6 cm), TL.
(v) Red snapper--20 inches (50.8 cm), TL.
(2) Grouper. (i) Red, yellowfin, and yellowmouth grouper; and
scamp--20 inches (50.8 cm), TL.
(ii) Black grouper and gag--24 inches (61.0 cm), TL.
(3) Other snapper-grouper species. (i) Black sea bass--10 inches
(25.4 cm), TL.
(ii) Gray triggerfish in the South Atlantic EEZ off Florida--12
inches (30.5 cm), TL.
(iii) Hogfish--12 inches (30.5 cm), fork length.
(iv) Red porgy--14 inches (35.6 cm), TL.
(v) Greater amberjack--28 inches (71.1 cm), fork length, for a fish
taken by a person subject to the bag limit specified in
Sec. 622.39(d)(1)(i) and 36 inches (91.4 cm), fork length, for a fish
taken by a person not subject to the bag limit.
(f) Gulf shrimp. White shrimp harvested in the EEZ are subject to
the minimum-size landing and possession limits of Louisiana when
possessed within the jurisdiction of that State.
(g) Caribbean queen conch--9 inches (22.9 cm) in length, that is,
from the tip of the spire to the distal end of the shell, and \3/8\ inch
(9.5 mm) in lip width at its widest point. A queen conch with a length
of at least 9 inches (22.9 cm) or a lip width of at least \3/8\ inch
(9.5 mm) is not undersized.
[61 FR 34934, July 3, 1996, as amended at 61 FR 65483, Dec. 13, 1996; 62
FR 13988, Mar. 25, 1997; 63 FR 444, Jan. 6, 1998; 63 FR 10567, Mar. 4,
1998; 64 FR 3628, Jan. 25, 1999; 64 FR 45459, Aug. 20, 1999; 64 FR
57404, Oct. 25, 1999; 65 FR 31831, May 19, 2000; 65 FR 50162, Aug. 17,
2000]
Sec. 622.38 Landing fish intact.
The operator of a vessel that fishes in the EEZ is responsible for
ensuring that fish on that vessel in the EEZ are maintained intact and,
if taken from the EEZ, are maintained intact through offloading ashore,
as specified in this section.
(a) The following must be maintained with head and fins intact:
Cobia, king mackerel, and Spanish mackerel in or
[[Page 175]]
from the Gulf, Mid-Atlantic, or South Atlantic EEZ, except as specified
for king mackerel in paragraph (g) of this section; South Atlantic
snapper-grouper in or from the South Atlantic EEZ, except as specified
in paragraph (h) of this section; yellowtail snapper in or from the
Caribbean EEZ; and finfish in or from the Gulf EEZ, except as specified
in paragraphs (c) and (d) of this section. Such fish may be eviscerated,
gilled, and scaled, but must otherwise be maintained in a whole
condition.
(b) A Caribbean spiny lobster in or from the Caribbean EEZ must be
maintained with head and carapace intact.
(c) Shark, swordfish, and tuna species are exempt from the
requirements of paragraph (a) of this section.
(d) In the Gulf EEZ:
(1) Bait is exempt from the requirement to be maintained with head
and fins intact.
(i) For the purpose of this paragraph (d)(1), bait means--
(A) Packaged, headless fish fillets that have the skin attached and
are frozen or refrigerated;
(B) Headless fish fillets that have the skin attached and are held
in brine; or
(C) Small pieces no larger than 3 in\3\ (7.6 cm\3\) or strips no
larger than 3 inches by 9 inches (7.6 cm by 22.9 cm) that have the skin
attached and are frozen, refrigerated, or held in brine.
(ii) Paragraph (d)(1)(i) of this section notwithstanding, a finfish
or part thereof possessed in or landed from the Gulf EEZ that is
subsequently sold or purchased as a finfish species, rather than as
bait, is not bait.
(2) Legal-sized finfish possessed for consumption at sea on the
harvesting vessel are exempt from the requirement to have head and fins
intact, provided--
(i) Such finfish do not exceed any applicable bag limit;
(ii) Such finfish do not exceed 1.5 lb (680 g) of finfish parts per
person aboard; and
(iii) The vessel is equipped to cook such finfish on board.
(e) A golden crab in or from the South Atlantic EEZ must be
maintained in whole condition through landing ashore. For the purposes
of this paragraph, whole means a crab that is in its natural condition
and that has not been gutted or separated into component pieces, e.g.,
clusters.
(f) A Caribbean conch resource in or from the Caribbean EEZ must be
maintained with meat and shell intact.
(g) Cut-off (damaged) king or Spanish mackerel that comply with the
minimum size limits in Sec. 622.37(c)(2) and (c)(3), respectively, and
the trip limits in Sec. 622.44(a) and (b), respectively, may be
possessed in the Gulf, Mid-Atlantic, or South Atlantic EEZ on, and
offloaded ashore from, a vessel that is operating under the respective
trip limits. Such cut-off fish also may be sold. A maximum of five
additional cut-off (damaged) king mackerel, not subject to the size
limits or trip limits, may be possessed or offloaded ashore but may not
be sold or purchased and are not counted against the trip limit.
(h) In the South Atlantic EEZ, snapper-grouper lawfully harvested in
Bahamian waters are exempt from the requirement that they be maintained
with head and fins intact, provided valid Bahamian fishing and cruising
permits are on board the vessel and the vessel is in transit through the
South Atlantic EEZ. For the purpose of this paragraph (i), a vessel is
in transit through the South Atlantic EEZ when it is on a direct and
continuous course through the South Atlantic EEZ and no one aboard the
vessel fishes in the EEZ.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43959, Aug. 27, 1996; 61
FR 65483, Dec. 13, 1996; 63 FR 10567, Mar. 4, 1998; 63 FR 38303, July
16, 1998; 64 FR 3628, Jan. 25, 1999; 65 FR 16340, Mar. 28, 2000]
Sec. 622.39 Bag and possession limits.
(a) Applicability. (1) The bag and possession limits apply for
species/species groups listed in this section in or from the EEZ. Unless
specified otherwise, bag limits apply to a person on a daily basis,
regardless of the number of trips in a day. Unless specified otherwise,
possession limits apply to a person on a trip after the first 24 hours
of that trip. The bag and possession limits apply to a person who fishes
in the EEZ in any manner, except a person aboard a vessel in the EEZ
that has on board the commercial vessel permit required under
Sec. 622.4(a)(2) for the appropriate species/species group. However, see
[[Page 176]]
Sec. 622.32 for limitations on taking prohibited and limited-harvest
species. The limitations in Sec. 622.32 apply without regard to whether
the species is harvested by a vessel operating under a commercial vessel
permit or by a person subject to the bag limits. The possession of a
commercial vessel permit notwithstanding, the bag and possession limits
apply when the vessel is operating as a charter vessel or headboat. A
person who fishes in the EEZ may not combine a bag limit specified in
this section with a bag or possession limit applicable to state waters.
A species/species group subject to a bag limit specified in this section
taken in the EEZ by a person subject to the bag limits may not be
transferred at sea, regardless of where such transfer takes place, and
such fish may not be transferred in the EEZ. The operator of a vessel
that fishes in the EEZ is responsible for ensuring that the bag and
possession limits specified in this section are not exceeded.
(2) Paragraph (a)(1) of this section notwithstanding, bag and
possession limits also apply for Gulf reef fish in or from the EEZ to a
person aboard a vessel that has on board a commercial permit for Gulf
reef fish--
(i) When trawl gear or entangling net gear is on board. A vessel is
considered to have trawl gear on board when trawl doors and a net are on
board. Removal from the vessel of all trawl doors or all nets
constitutes removal of trawl gear.
(ii) When a longline or buoy gear is on board and the vessel is
fishing or has fished on a trip in the reef fish longline and buoy gear
restricted area specified in Sec. 622.34(c). A vessel is considered to
have a longline on board when a power-operated longline hauler, a cable
of diameter and length suitable for use in the longline fishery, and
gangions are on board. Removal of any one of these three elements, in
its entirety, constitutes removal of a longline.
(iii) For a species/species group when its quota has been reached
and closure has been effected.
(iv) When the vessel has on board or is tending any trap other than
a fish trap authorized under Sec. 622.40(a)(2), a stone crab trap, or a
spiny lobster trap.
(3) Paragraph (a)(1) of this section notwithstanding, the bag and
other limits specified in Sec. 622.35(b) apply for South Atlantic
snapper-grouper in or from the EEZ to a person aboard a vessel for which
a commercial permit for South Atlantic snapper-grouper has been issued
that has on board a longline in the longline closed area.
(b) Gulf reef fish--(1) Bag limits. (i) Greater amberjack--1.
(ii) Groupers, combined, excluding jewfish and Nassau grouper--5 per
person per day, but not to exceed 1 speckled hind and 1 Warsaw grouper
per vessel per day.
(iii) Red snapper--4.
(iv) Snappers, combined, excluding red, lane, and vermilion
snapper--10.
(v) Gulf reef fish, combined, excluding those specified in
paragraphs (b)(1)(i) through (b)(1)(iv) and paragraphs (b)(1)(vi)
through (b)(1)(vii) of this section and excluding dwarf sand perch and
sand perch--20.
(vi) Banded rudderfish and lesser amberjack, combined--5.
(vii) Hogfish--5.
(2) Possession limits. A person, or a vessel in the case of speckled
hind or Warsaw grouper, on a trip that spans more than 24 hours may
possess no more than two daily bag limits, provided such trip is on a
vessel that is operating as a charter vessel or headboat, the vessel has
two licensed operators aboard, and each passenger is issued and has in
possession a receipt issued on behalf of the vessel that verifies the
length of the trip.
(c) King and Spanish mackerel--(1) Bag limits. (i) Atlantic
migratory group king mackerel--
(A) Mid-Atlantic and South Atlantic, other than off Florida--3.
(B) Off Florida--2, which is the daily bag limit specified by
Florida for its waters (Rule 46-12.004(1), Florida Administrative Code).
If Florida changes its limit, the bag limit specified in this paragraph
(c)(1)(i)(B) will be changed to conform to Florida's limit, provided
such limit does not exceed 5.
(ii) Gulf migratory group king mackerel--2, except that for an
operator or crew member of a charter vessel or headboat, the bag limit
is 0.
(iii) Atlantic migratory group Spanish mackerel--15.
[[Page 177]]
(iv) Gulf migratory group Spanish mackerel--15.
(2) Possession limits. A person who is on a trip that spans more
than 24 hours may possess no more than two daily bag limits, provided
such trip is on a vessel that is operating as a charter vessel or
headboat, the vessel has two licensed operators aboard, and each
passenger is issued and has in possession a receipt issued on behalf of
the vessel that verifies the length of the trip.
(d) South Atlantic snapper-grouper--(1) Bag limits. (i) Greater
amberjack--1.
(ii) Groupers, combined, excluding jewfish and Nassau grouper, and
tilefishes--5. However, within the 5-fish aggregate bag limit, no more
than two fish may be gag or black grouper, combined.
(iii) Hogfish in the South Atlantic off Florida--5.
(iv) Snappers, combined, excluding cubera snapper measuring 30
inches (76.2 cm), TL, or larger, in the South Atlantic off Florida, and
excluding vermilion snapper--10, of which no more than 2 may be red
snapper. (See Sec. 622.32(c)(2) for limitations on cubera snapper
measuring 30 inches (76.2 cm), TL, or larger, in or from the South
Atlantic EEZ off Florida.)
(v) Vermilion snapper--10.
(vi) Red porgy--1.
(vii) Black sea bass--20.
(viii) South Atlantic snapper-grouper, combined, excluding tomtate
and blue runner and those specified in paragraphs (d)(1)(i) through
(vii) of this section--20.
(2) Possession limits. (i) Provided each passenger is issued and has
in possession a receipt issued on behalf of the vessel that verifies the
duration of the trip--
(A) A person aboard a charter vessel or headboat on a trip that
spans more than 24 hours may possess no more than two daily bag limits
of species other than red porgy.
(B) A person aboard a headboat on a trip that spans more than 48
hours and who can document that fishing was conducted on at least 3 days
may possess no more than three daily bag limits of species other than
red porgy.
(ii) A person aboard a vessel may not possess red porgy in or from
the EEZ in excess of one per day or one per trip, whichever is more
restrictive.
(3) Longline bag limits. Other provisions of this paragraph (d)
notwithstanding, a person on a trip aboard a vessel for which the bag
limits apply that has a longline on board is limited on that trip to the
bag limit for South Atlantic snapper-grouper for which a bag limit is
specified in paragraph (d)(1) of this section, and to zero for all other
South Atlantic snapper-grouper. For the purpose of this paragraph
(d)(3), a vessel is considered to have a longline on board when a power-
operated longline hauler, a cable or monofilament of diameter and length
suitable for use in the longline fishery, and gangions are on board.
Removal of any one of these three elements constitutes removal of a
longline.
(e) Caribbean queen conch--(1) Applicability. Paragraph (a)(1) of
this section notwithstanding, the bag limit of paragraph (e)(2) of this
section does not apply to a fisherman who has a valid commercial fishing
license issued by Puerto Rico or the U.S. Virgin Islands. See
Sec. 622.44 for the commercial daily trip limit.
(2) Bag limit. The bag limit for queen conch in or from the
Caribbean EEZ is 3 per person or, if more than 4 persons are aboard, 12
per boat.
[61 FR 34934, July 3, 1996, as amended at 61 FR 65483, Dec. 13, 1996; 61
FR 65985, Dec. 16, 1996; 62 FR 23674, May 1, 1997; 62 FR 67723, Dec. 30,
1997; 63 FR 8356, Feb. 19, 1998; 63 FR 38303, July 16, 1998; 63 FR
72203, Dec. 31, 1998; 64 FR 3628, Jan. 25, 1999; 64 FR 33800, June 24,
1999; 64 FR 45459, Aug. 20, 1999; 64 FR 47713, Sept. 1, 1999; 64 FR
57404, Oct. 25, 1999; 65 FR 30363, May 11, 2000; 65 FR 41016, July 3,
2000; 65 FR 50162, Aug. 17, 2000; 65 FR 51252, Aug. 23, 2000]
Sec. 622.40 Limitations on traps and pots.
(a) Tending--(1) Caribbean EEZ. A fish trap or Caribbean spiny
lobster trap in the Caribbean EEZ may be pulled or tended only by a
person (other than an authorized officer) aboard the fish trap or spiny
lobster trap owner's vessel, or aboard another vessel if such vessel has
on board written consent of the trap owner, or if the trap owner is
aboard and has documentation verifying his identification number and
color code.
[[Page 178]]
An owner's written consent must specify the time period such consent is
effective and the trap owner's gear identification number and color
code.
(2) Gulf EEZ. A fish trap in the Gulf EEZ may be pulled or tended
only by a person (other than an authorized officer) aboard the vessel
with the fish trap endorsement to fish such trap. If such vessel has a
breakdown that prevents it from retrieving its traps, the owner or
operator must immediately notify the nearest NMFS Office of Enforcement
and must obtain authorization for another vessel to retrieve and land
its traps. The request for such authorization must include the requested
effective period for the retrieval and landing, the persons and vessel
to be authorized to retrieve the traps, and the point of landing of the
traps. Such authorization will be specific as to the effective period,
authorized persons and vessel, and point of landing. Such authorization
is valid solely for the removal of fish traps from the EEZ and for
harvest of fish incidental to such removal.
(3) South Atlantic EEZ. A sea bass pot or golden crab trap in the
South Atlantic EEZ may be pulled or tended only by a person (other than
an authorized officer) aboard the vessel permitted to fish such pot or
trap or aboard another vessel if such vessel has on board written
consent of the owner or operator of the vessel so permitted. For golden
crab only, a vessel with written consent on board must also possess a
valid commercial vessel permit for golden crab.
(b) Escape mechanisms--(1) Caribbean EEZ. (i) A fish trap used or
possessed in the Caribbean EEZ must have a panel located on each of two
sides of the trap, excluding the top, bottom, and side containing the
trap entrance. The opening covered by a panel must measure not less than
8 by 8 inches (20.3 by 20.3 cm). The mesh size of a panel may not be
smaller than the mesh size of the trap. A panel must be attached to the
trap with untreated jute twine with a diameter not exceeding \1/8\ inch
(3.2 mm). An access door may serve as one of the panels, provided it is
on an appropriate side, it is hinged only at its bottom, its only other
fastening is untreated jute twine with a diameter not exceeding \1/8\
inch (3.2 mm), and such fastening is at the top of the door so that the
door will fall open when such twine degrades. Jute twine used to secure
a panel may not be wrapped or overlapped.
(ii) A spiny lobster trap used or possessed in the Caribbean EEZ
must contain on any vertical side or on the top a panel no smaller in
diameter than the throat or entrance of the trap. The panel must be made
of or attached to the trap by one of the following degradable materials:
(A) Untreated fiber of biological origin with a diameter not
exceeding \1/8\ inch (3.2 mm). This includes, but is not limited to tyre
palm, hemp, jute, cotton, wool, or silk.
(B) Ungalvanized or uncoated iron wire with a diameter not exceeding
\1/16\ inch (1.6 mm), that is, 16 gauge wire.
(2) Gulf EEZ. A fish trap used or possessed in the Gulf EEZ must
have at least two escape windows on each of two sides, excluding the
bottom (a total of four escape windows), that are 2 by 2 inches (5.1 by
5.1 cm) or larger. In addition, a fish trap must have a panel or access
door located opposite each side of the trap that has a funnel. The
opening covered by each panel or access door must be 144 in2
(929 cm2) or larger, with one dimension of the area equal to
or larger than the largest interior axis of the trap's throat (funnel)
with no other dimension less than 6 inches (15.2 cm). The hinges and
fasteners of each panel or access door must be constructed of one of the
following degradable materials:
(i) Untreated jute string with a diameter not exceeding \3/16\ inch
(4.8 mm) that is not wrapped or overlapped.
(ii) Magnesium alloy, time float releases (pop-up devices) or
similar magnesium alloy fasteners.
(3) South Atlantic EEZ. (i) A sea bass pot that is used or possessed
in the South Atlantic EEZ between 35 deg.15.3' N. lat. (due east of Cape
Hatteras Light, NC) and 28 deg.35.1' N. lat. (due east of the NASA
Vehicle Assembly Building, Cape Canaveral, FL) is required to have--
(A) On at least one side, excluding top and bottom, a panel or door
with an opening equal to or larger than the interior end of the trap's
throat (funnel). The hinges and fasteners of each
[[Page 179]]
panel or door must be made of one of the following degradable materials:
(1) Ungalvanized or uncoated iron wire with a diameter not exceeding
0.041 inches (1.0 mm), that is, 19 gauge wire.
(2) Galvanic timed-release mechanisms with a letter grade
designation (degradability index) no higher than J.
(B) An unobstructed escape vent opening on at least two opposite
vertical sides, excluding top and bottom. The minimum dimensions of an
escape vent opening (based on inside measurement) are:
(1) 1\1/8\ by 5\3/4\ inches (2.9 by 14.6 cm) for a rectangular vent.
(2) 1.75 by 1.75 inches (4.5 by 4.5 cm) for a square vent.
(3) 2.0-inch (5.1-cm) diameter for a round vent.
(ii) A golden crab trap that is used or possessed in the South
Atlantic EEZ must have at least one escape gap or escape ring on each of
two opposite vertical sides. The minimum allowable inside dimensions of
an escape gap are 2.75 by 3.75 inches (7.0 by 9.5 cm); the minimum
allowable inside diameter of an escape ring is 4.5 inches (11.4 cm). In
addition to the escape gaps--
(A) A golden crab trap constructed of webbing must have an opening
(slit) at least 1 ft (30.5 cm) long that may be closed (relaced) only
with untreated cotton string no larger than \3/16\ inch (0.48 cm) in
diameter.
(B) A golden crab trap constructed of material other than webbing
must have an escape panel or door measuring at least 12 by 12 inches
(30.5 by 30.5 cm), located on at least one side, excluding top and
bottom. The hinges or fasteners of such door or panel must be made of
either ungalvanized or uncoated iron wire no larger than 19 gauge (0.04
inch (1.0 mm) in diameter) or untreated cotton string no larger than \3/
16\ inch (4.8 mm) in diameter.
(c) Construction requirements and mesh sizes--(1) Caribbean EEZ. A
bare-wire fish trap used or possessed in the EEZ that has hexagonal mesh
openings must have a minimum mesh size of 1.5 inches (3.8 cm) in the
smallest dimension measured between centers of opposite strands. A bare-
wire fish trap used or possessed in the EEZ that has other than
hexagonal mesh openings or a fish trap of other than bare wire, such as
coated wire or plastic, used or possessed in the EEZ, must have a
minimum mesh size of 2.0 inches (5.1 cm) in the smallest dimension
measured between centers of opposite strands.
(2) Gulf EEZ. A fish trap used or possessed in the Gulf EEZ must
meet all of the following mesh size requirements (based on centerline
measurements between opposite wires or netting strands):
(i) A minimum of 2 in2 (12.9 cm2) opening for
each mesh.
(ii) One-inch (2.5-cm) minimum length for the shortest side.
(iii) Minimum distance of 1 inch (2.5 cm) between parallel sides of
rectangular openings, and 1.5 inches (3.8 cm) between parallel sides of
square openings and of mesh openings with more than four sides.
(iv) One and nine-tenths inches (4.8 cm) minimum distance for
diagonal measures of mesh.
(3) South Atlantic EEZ. (i) A sea bass pot used or possessed in the
South Atlantic EEZ must have mesh sizes as follows (based on centerline
measurements between opposite, parallel wires or netting strands):
(A) Hexagonal mesh (chicken wire)--at least 1.5 inches (3.8 cm)
between the wrapped sides;
(B) Square mesh--at least 1.5 inches (3.8 cm) between sides; or
(C) Rectangular mesh--at least 1 inch (2.5 cm) between the longer
sides and 2 inches (5.1 cm) between the shorter sides.
(ii) A golden crab trap deployed or possessed in the South Atlantic
EEZ may not exceed 64 ft3 (1.8 m3) in volume in
the northern zone or 48 ft3 (1.4 m3) in volume in
the middle and southern zones. See Sec. 622.17(b) for specification of
the golden crab zones.
(d) Area-specific restrictions--(1) Gulf EEZ. In the Gulf EEZ, a
fish trap may be pulled or tended only from official sunrise to official
sunset. The operator of a vessel from which a fish trap is deployed in
the Gulf EEZ must retrieve all the vessel's fish traps and return them
to port on each trip. A fish trap that is not returned to port on a
trip, and its attached line and buoy, may be disposed of in any
appropriate manner by the Assistant Administrator or an
[[Page 180]]
authorized officer. The owner of such trap and/or the operator of the
responsible vessel is subject to appropriate civil penalties. A buoy
that floats on the surface must be attached to each fish trap, or to
each end trap of traps that are connected by a line, used in the Gulf
EEZ. The maximum allowable size for a fish trap fished in the Gulf EEZ
shoreward of the 50-fathom (91.4-m) isobath is 33 ft3 (0.9
m3) in volume. Fish trap volume is determined by measuring
the external dimensions of the trap, and includes both the enclosed
holding capacity of the trap and the volume of the funnel(s) within
those dimensions. There is no size limitation for fish traps fished
seaward of the 50-fathom (91.4-m) isobath. The maximum number of traps
that may be assigned to, possessed, or fished in the Gulf EEZ by a
vessel is 100.
(2) South Atlantic EEZ. (i) In the South Atlantic EEZ, sea bass pots
may not be used or possessed in multiple configurations, that is, two or
more pots may not be attached one to another so that their overall
dimensions exceed those allowed for an individual sea bass pot. This
does not preclude connecting individual pots to a line, such as a
``trawl'' or trot line.
(ii) Rope is the only material allowed to be used for a buoy line or
mainline attached to a golden crab trap, except that wire cable is
allowed for a mainline through December 31, 2000.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43959, Aug. 27, 1996; 62
FR 13988, Mar. 25, 1997; 63 FR 10568, Mar. 4, 1998; 63 FR 38303, July
16, 1998; 63 FR 57590, Oct. 28, 1998; 64 FR 3628, Jan. 25, 1999]
Sec. 622.41 Species specific limitations.
(a) Aquacultured live rock. In the Gulf or South Atlantic EEZ:
(1) Aquacultured live rock may be harvested only under a permit, as
required under Sec. 622.4(a)(3)(iii), and aquacultured live rock on a
site may be harvested only by the person, or his or her employee,
contractor, or agent, who has been issued the aquacultured live rock
permit for the site. A person harvesting aquacultured live rock is
exempt from the prohibition on taking prohibited coral for such
prohibited coral as attaches to aquacultured live rock.
(2) The following restrictions apply to individual aquaculture
activities:
(i) No aquaculture site may exceed 1 acre (0.4 ha) in size.
(ii) Material deposited on the aquaculture site--
(A) May not be placed over naturally occurring reef outcrops,
limestone ledges, coral reefs, or vegetated areas.
(B) Must be free of contaminants.
(C) Must be nontoxic.
(D) Must be placed on the site by hand or lowered completely to the
bottom under restraint, that is, not allowed to fall freely.
(E) Must be placed from a vessel that is anchored.
(F) In the Gulf EEZ, must be distinguishable, geologically or
otherwise (for example, be indelibly marked or tagged), from the
naturally occurring substrate.
(G) In the South Atlantic EEZ, must be geologically distinguishable
from the naturally occurring substrate and, in addition, may be
indelibly marked or tagged.
(iii) A minimum setback of at least 50 ft (15.2 m) must be
maintained from natural vegetated or hard bottom habitats.
(3) Mechanically dredging or drilling, or otherwise disturbing,
aquacultured live rock is prohibited, and aquacultured live rock may be
harvested only by hand. In addition, the following activities are
prohibited in the South Atlantic: Chipping of aquacultured live rock in
the EEZ, possession of chipped aquacultured live rock in or from the
EEZ, removal of allowable octocoral or prohibited coral from
aquacultured live rock in or from the EEZ, and possession of prohibited
coral not attached to aquacultured live rock or allowable octocoral,
while aquacultured live rock is in possession. See the definition of
``Allowable octocoral'' for clarification of the distinction between
allowable octocoral and live rock. For the purposes of this paragraph
(a)(3), chipping means breaking up reefs, ledges, or rocks into
fragments, usually by means of a chisel and hammer.
(4) Not less than 24 hours prior to harvest of aquacultured live
rock, the owner or operator of the harvesting
[[Page 181]]
vessel must provide the following information to the NMFS Law
Enforcement Office, Southeast Area, St. Petersburg, FL, telephone (813)
570-5344:
(i) Permit number of site to be harvested and date of harvest.
(ii) Name and official number of the vessel to be used in
harvesting.
(iii) Date, port, and facility at which aquacultured live rock will
be landed.
(b) Caribbean reef fish. A marine aquarium fish may be harvested in
the Caribbean EEZ only by a hand-held dip net or by a hand-held slurp
gun. For the purposes of this paragraph, a hand-held slurp gun is a
device that rapidly draws seawater containing fish into a self-contained
chamber, and a marine aquarium fish is a Caribbean reef fish that is
smaller than 5.5 inches (14.0 cm), TL.
(c) Coastal migratory pelagic fish--(1) Authorized gear. Subject to
the prohibitions on gear/methods specified in Sec. 622.31, the following
are the only fishing gears that may be used in the Gulf, Mid-Atlantic,
and South Atlantic EEZ in directed fisheries for coastal migratory
pelagic fish:
(i) King mackerel, Atlantic migratory group--
(A) North of 34 deg.37.3' N. lat., the latitude of Cape Lookout
Light, NC--all gear except drift gillnet and long gillnet.
(B) South of 34 deg.37.3' N. lat.--automatic reel, bandit gear,
handline, and rod and reel.
(ii) King mackerel, Gulf migratory group--hook-and-line gear and, in
the southern Florida west coast subzone only, run-around gillnet. (See
Sec. 622.42(c)(1)(i)(A)(3) for a description of the southern Florida
west coast subzone.)
(iii) Spanish mackerel, Atlantic migratory group--automatic reel,
bandit gear, handline, rod and reel, cast net, run-around gillnet, and
stab net.
(iv) Spanish mackerel, Gulf migratory group--all gear except drift
gillnet, long gillnet, and purse seine.
(v) Cobia in the Mid-Atlantic and South Atlantic EEZ, dolphin in the
South Atlantic EEZ, and little tunny in the South Atlantic EEZ south of
34 deg.37.3' N. lat.--automatic reel, bandit gear, handline, rod and
reel, and pelagic longline.
(vi) Cero in the South Atlantic EEZ and little tunny in the South
Atlantic EEZ north of 34 deg.37.3' N. lat.--all gear except drift
gillnet and long gillnet.
(vii) Bluefish, cero, cobia, dolphin, and little tunny in the Gulf
EEZ--all gear except drift gillnet and long gillnet.
(2) Unauthorized gear. Gear types other than those specified in
paragraph (c)(1) of this section are unauthorized gear and the following
possession limitations apply:
(i) Long gillnets. A vessel with a long gillnet on board in, or that
has fished on a trip in, the Gulf, Mid-Atlantic, or South Atlantic EEZ
may not have on board on that trip a coastal migratory pelagic fish.
(ii) Drift gillnets. A vessel with a drift gillnet on board in, or
that has fished on a trip in, the Gulf EEZ may not have on board on that
trip a coastal migratory pelagic fish.
(iii) Other unauthorized gear. Except as specified in paragraph
(c)(2)(iv) of this section, a person aboard a vessel with unauthorized
gear other than a drift gillnet in the Gulf EEZ or a long gillnet on
board in, or that has fished in, the EEZ where such gear is not
authorized in paragraph (c)(1) of this section, is subject to the bag
limit for king and Spanish mackerel specified in Sec. 622.39(c)(1)(ii)
and to the limit on cobia specified in Sec. 622.32(c)(1).
(iv) Exception for king mackerel in the Gulf EEZ. The provisions of
this paragraph (c)(2)(iv) apply to king mackerel taken in the Gulf EEZ
and to such king mackerel possessed in the Gulf. Paragraph (c)(2)(iii)
of this section notwithstanding, a person aboard a vessel that has a
valid commercial permit for king mackerel is not subject to the bag
limit for king mackerel when the vessel has on board on a trip
unauthorized gear other than a drift gillnet in the Gulf EEZ, a long
gillnet, or a run-around gillnet in an area other than the southern
Florida west coast subzone. Thus, the following applies to a vessel that
has a commercial permit for king mackerel:
(A) Such vessel may not use unauthorized gear in a directed fishery
for king mackerel in the Gulf EEZ.
(B) If such a vessel has a drift gillnet or a long gillnet on board
or a run-
[[Page 182]]
around gillnet in an area other than the southern Florida west coast
subzone, no king mackerel may be possessed.
(C) If such a vessel has unauthorized gear on board other than a
drift gillnet in the Gulf EEZ, a long gillnet, or a run-around gillnet
in an area other than the southern Florida west coast subzone, the
possession of king mackerel taken incidentally is restricted only by the
closure provisions of Sec. 622.43(a)(3) and the trip limits specified in
Sec. 622.44(a). See also paragraph (c)(4) of this section regarding the
purse seine incidental catch allowance of king mackerel.
(3) Gillnets--(i) King mackerel. The minimum allowable mesh size for
a gillnet used to fish in the Gulf, Mid-Atlantic, or South Atlantic EEZ
for king mackerel is 4.75 inches (12.1 cm), stretched mesh. A vessel in
such EEZ, or having fished on a trip in such EEZ, with a gillnet on
board that has a mesh size less than 4.75 (12.1 cm) inches, stretched
mesh, may not possess on that trip an incidental catch of king mackerel
that exceeds 10 percent, by number, of the total lawfully possessed
Spanish mackerel on board.
(ii) Spanish mackerel. (A) The minimum allowable mesh size for a
gillnet used to fish for Spanish mackerel in the Gulf, Mid-Atlantic, or
South Atlantic EEZ is 3.5 inches (8.9 cm), stretched mesh.
(1) A vessel in the Gulf EEZ, or having fished on a trip in the Gulf
EEZ, with a gillnet on board that has a mesh size less than 3.5 inches
(8.9 cm), stretched mesh, may not possess on that trip any Spanish
mackerel.
(2) A vessel in the South Atlantic or Mid-Atlantic EEZ, or having
fished on a trip in such EEZ, with a gillnet on board that has a mesh
size less than 3.5 inches (8.9 cm), stretched mesh, may possess or land
on the day of that trip no more than 500 lb (227 kg) of incidentally
caught Spanish mackerel.
(B) On board a vessel with a valid Spanish mackerel permit that is
fishing for Spanish mackerel in, or that possesses Spanish mackerel in
or from, the South Atlantic EEZ off Florida north of 25 deg.20.4' N.
lat., which is a line directly east from the Miami-Dade/Monroe County,
FL, boundary--
(1) No person may fish with, set, place in the water, or have on
board a gillnet with a float line longer than 800 yd (732 m).
(2) No person may fish with, set, or place in the water more than
one gillnet at any one time.
(3) No more than two gillnets, including any net in use, may be
possessed at any one time; provided, however, that if two gillnets,
including any net in use, are possessed at any one time, they must have
stretched mesh sizes (as allowed under the regulations) that differ by
at least .25 inch (.64 cm).
(4) No person may soak a gillnet for more than 1 hour. The soak
period begins when the first mesh is placed in the water and ends either
when the first mesh is retrieved back on board the vessel or the
gathering of the gillnet is begun to facilitate retrieval on board the
vessel, whichever occurs first; providing that, once the first mesh is
retrieved or the gathering is begun, the retrieval is continuous until
the gillnet is completely removed from the water.
(5) The float line of each gillnet possessed, including any net in
use, must have the distinctive floats specified in Sec. 622.6(b)(2).
(4) Purse seine incidental catch allowance. A vessel in the EEZ, or
having fished in the EEZ, with a purse seine on board will not be
considered as fishing, or having fished, for king or Spanish mackerel in
violation of a prohibition of purse seines under paragraph (c)(2) of
this section, in violation of the possession limits under paragraph
(c)(2)(iii) of this section, or, in the case of king mackerel from the
Atlantic migratory group, in violation of a closure effected in
accordance with Sec. 622.43(a), provided the king mackerel on board does
not exceed 1 percent, or the Spanish mackerel on board does not exceed
10 percent, of all fish on board the vessel. Incidental catch will be
calculated by number and/or weight of fish. Neither calculation may
exceed the allowable percentage. Incidentally caught king or Spanish
mackerel are counted toward the quotas provided for under Sec. 622.42(c)
and are subject to the prohibition of sale under Sec. 622.43(a)(3)(iii).
[[Page 183]]
(d) South Atlantic snapper-grouper--(1) Authorized gear. Subject to
the gear restrictions specified in Sec. 622.31, the following are the
only gear types authorized in a directed fishery for snapper-grouper in
the South Atlantic EEZ: Bandit gear, bottom longline, buoy gear,
handline, rod and reel, sea bass pot, and spearfishing gear.
(2) Unauthorized gear. All gear types other than those specified in
paragraph (d)(1) of this section are unauthorized gear and the following
possession and transfer limitations apply.
(i) A vessel with trawl gear on board that fishes in the EEZ on a
trip may possess no more than 200 lb (90.7 kg) of South Atlantic
snapper-grouper, excluding wreckfish, in or from the EEZ on that trip.
It is a rebuttable presumption that a vessel with more than 200 lb (90.7
kg) of South Atlantic snapper-grouper, excluding wreckfish, on board
harvested such fish in the EEZ.
(ii) Except as specified in paragraphs (d)(3) through (d)(5) of this
section, a person aboard a vessel with unauthorized gear on board, other
than trawl gear, that fishes in the EEZ on a trip is limited on that
trip to:
(A) South Atlantic snapper-grouper species for which a bag limit is
specified in Sec. 622.39(d)(1)--the bag limit.
(B) All other South Atlantic snapper-grouper--zero.
(iii) South Atlantic snapper-grouper on board a vessel with
unauthorized gear on board may not be transferred at sea, regardless of
where such transfer takes place, and such snapper-grouper may not be
transferred in the EEZ.
(iv) No vessel may receive at sea any South Atlantic snapper-grouper
from a vessel with unauthorized gear on board, as specified in paragraph
(d)(2)(iii) of this section.
(3) Possession allowance regarding sink nets off North Carolina. A
vessel that has on board a commercial permit for South Atlantic snapper-
grouper, excluding wreckfish, that fishes in the EEZ off North Carolina
with a sink net on board, may retain, without regard to the limits
specified in paragraph (d)(2)(ii) of this section, otherwise legal South
Atlantic snapper-grouper taken with bandit gear, buoy gear, handline,
rod and reel, or sea bass pot. For the purpose of this paragraph (d)(3),
a sink net is a gillnet with stretched mesh measurements of 3 to 4.75
inches (7.6 to 12.1 cm) that is attached to the vessel when deployed.
(4) Possession allowance regarding bait nets. A vessel that has on
board a commercial permit for South Atlantic snapper-grouper, excluding
wreckfish, that fishes in the South Atlantic EEZ with no more than one
bait net on board, may retain, without regard to the limits specified in
paragraph (d)(2)(ii) of this section, otherwise legal South Atlantic
snapper-grouper taken with bandit gear, buoy gear, handline, rod and
reel, or sea bass pot. For the purpose of this paragraph (d)(4), a bait
net is a gillnet not exceeding 50 ft (15.2 m) in length or 10 ft (3.1 m)
in height with stretched mesh measurements of 1.5 inches (3.8 cm) or
smaller that is attached to the vessel when deployed.
(5) Possession allowance regarding cast nets. A vessel that has on
board a commercial permit for South Atlantic snapper-grouper, excluding
wreckfish, that fishes in the South Atlantic EEZ with a cast net on
board, may retain, without regard to the limits specified in paragraph
(d)(2)(ii) of this section, otherwise legal South Atlantic snapper-
grouper taken with bandit gear, buoy gear, handline, rod and reel, or
sea bass pot. For the purpose of this paragraph (d)(5), a cast net is a
cone-shaped net thrown by hand and designed to spread out and capture
fish as the weighted circumference sinks to the bottom and comes
together when pulled by a line.
(6) Longline species limitation. A vessel that has on board a valid
Federal commercial permit for South Atlantic snapper-grouper, excluding
wreckfish, that fishes in the EEZ on a trip with a longline on board,
may possess only the following South Atlantic snapper-grouper: snowy
grouper, warsaw grouper, yellowedge grouper, misty grouper, golden
tilefish, blueline tilefish, and sand tilefish. For the purpose of this
paragraph, a vessel is considered to have a longline on board when a
power-operated longline hauler, a cable of diameter suitable for use in
the longline fishery on any reel, and gangions are on board. Removal of
any one of these
[[Page 184]]
three elements constitutes removal of a longline.
(e) South Atlantic golden crab. Traps are the only fishing gear
authorized in directed fishing for golden crab in the South Atlantic
EEZ. Golden crab in or from the South Atlantic EEZ may not be retained
on board a vessel possessing or using unauthorized gear.
(f) Caribbean queen conch. In the Caribbean EEZ, no person may
harvest queen conch by diving while using a device that provides a
continuous air supply from the surface.
(g) Shrimp in the South Atlantic--(1) BRD requirement. Except as
exempted in paragraph (g)(3)(ii) of this section, on a penaeid shrimp
trawler in the South Atlantic EEZ, each trawl net that is rigged for
fishing and has a mesh size less than 2.50 inches (6.35 cm), as measured
between the centers of opposite knots when pulled taut, and each try net
that is rigged for fishing and has a headrope length longer than 16.0 ft
(4.9 m), must have a certified BRD installed. A trawl net, or try net,
is rigged for fishing if it is in the water, or if it is shackled, tied,
or otherwise connected to a sled, door, or other device that spreads the
net, or to a tow rope, cable, pole, or extension, either on board or
attached to a shrimp trawler.
(2) Certified BRDs. The following BRDs are certified for use by
penaeid shrimp trawlers in the South Atlantic EEZ. Specifications of
these certified BRDs are contained in Appendix D of this part.
(i) Extended funnel.
(ii) Expanded mesh.
(iii) Fisheye.
(3) Certification of BRDs--(i) A person who seeks to have a BRD
certified for use in the South Atlantic EEZ must submit an application
to test such BRD, conduct the testing, and submit to the RA the results
of the test conducted and recorded in accordance with the Testing
Protocol for BRD Certification, which along with forms and procedures,
is included in the Bycatch Reduction Device Testing Protocol Manual
which is available from the SAFMC, One Southpark Circle, Suite 306,
Charleston, SC 29407-4699, and from the RA. A BRD that meets the
certification criterion, as determined under the Testing Protocol for
BRD Certification, will be added to the list of certified BRDs in
paragraph (g)(2) of this section.
(ii) A penaeid shrimp trawler that is authorized to test a BRD in
the EEZ for possible certification, has such written authorization on
board, and is conducting such test in accordance with the Testing
Protocol for BRD Certification is granted a limited exemption from the
BRD requirement specified in paragraph (g)(1) of this section. The
exemption from the BRD requirement is limited to those trawls that are
being used in the certification trials. All other trawls rigged for
fishing must be equipped with certified BRDs.
(h) Shrimp in the Gulf--(1) BRD requirement. (i) Except as exempted
in paragraphs (h)(1)(ii) through (iv) and paragraph (h)(3)(iii) of this
section, on a shrimp trawler in the Gulf EEZ shoreward of the 100-fathom
(183-m) depth contour west of 85 deg.30' W. long., each net that is
rigged for fishing must have a certified BRD installed. A trawl net is
rigged for fishing if it is in the water, or if it is shackled, tied, or
otherwise connected to a sled, door, or other device that spreads the
net, or to a tow rope, cable, pole, or extension, either on board or
attached to a shrimp trawler.
(ii) A shrimp trawler is exempt from the requirement to have a
certified BRD installed in each net provided that at least 90 percent
(by weight) of all shrimp on board or offloaded from such trawler are
royal red shrimp.
(iii) A shrimp trawler is exempt from the requirement to have a BRD
installed in a single try net with a headrope length of 16 ft (4.9 m) or
less provided the single try net is either pulled immediately in front
of another net or is not connected to another net.
(iv) A shrimp trawler is exempt from the requirement to have a
certified BRD installed in up to two rigid-frame roller trawls that are
16 ft (4.9 m) or less in length used or possessed on board. A rigid-
frame roller trawl is a trawl that has a mouth formed by a rigid frame
and a grid of rigid vertical bars; has rollers on the lower horizontal
part of the frame to allow the trawl to roll over the bottom and any
[[Page 185]]
obstruction while being towed; and has no doors, boards, or similar
devices attached to keep the mouth of the trawl open.
(2) Certified BRDs. The following BRDs are certified for use by
shrimp trawlers in the Gulf EEZ. Specifications of these certified BRDs
are contained in Appendix D to this part.
(i) Fisheye.
(ii) Gulf fisheye.
(iii) Jones-Davis.
(3) Procedures for certification of additional BRDs. The process for
the certification of additional BRDs consists of two phases--an optional
pre-certification phase and a required certification phase.
(i) Pre-certification. The pre-certification phase allows a person
to test and evaluate a new BRD design for up to 60 days without being
subject to the observer requirements and rigorous testing requirements
specified for certification testing in the Gulf Of Mexico Bycatch
Reduction Device Testing Protocol Manual.
(A) A person who wants to conduct pre-certification phase testing
must submit an application, as specified in the Gulf Of Mexico Bycatch
Reduction Device Testing Protocol Manual, to the RA. The Gulf Of Mexico
Bycatch Reduction Device Testing Protocol Manual, which is available
from the RA, upon request, contains the application forms.
(B) After reviewing the application, the RA will determine whether
to issue a letter of authorization (LOA) to conduct pre-certification
trials upon the vessel specified in the application. The RA will issue a
pre-certification phase LOA if the BRD design is substantially unlike
any BRD design previously determined not to meet the BRD certification
criterion or, if the design is substantially similar to a BRD design
previously determined not to meet the BRD certification criteria, and
the application demonstrates that the design could meet the
certification criterion through design revision or upon retesting (e.g.,
the application shows that statistical results could be improved upon
retesting by such things as using a larger sample size than that
previously used). If the RA authorizes pre-certification, the RA's
letter of authorization must be on board the vessel during any trip
involving the BRD testing.
(ii) Certification. A person who proposes a BRD for certification
for use in the Gulf EEZ must submit an application to test such BRD,
conduct the testing, and submit the results of the test in accordance
with the Gulf Of Mexico Bycatch Reduction Device Testing Protocol
Manual. The RA will issue a LOA to conduct certification trials upon the
vessel specified in the application if the RA finds that: The test plan
meets the requirements of the protocol; the observer identified in the
application is qualified and has no current or prior financial
relationship with the entity seeking BRD certification; the application
presents a BRD candidate substantially unlike BRDs previously determined
not to meet the current bycatch reduction criterion, or the applicant
has shown good cause for reconsideration (such as the likelihood of
improved statistical results yielded from a larger sample size than that
previously used); and for BRDs not previously tested for certification,
the results of any pre-certification trials conducted have been reviewed
and deemed to indicate a reasonable scientific basis for conducting
certification testing. If authorization to conduct certification trials
is denied, the RA will provide a letter of explanation to the applicant,
together with relevant recommendations to address the deficiencies
resulting in the denial. If a BRD meets the certification criterion, as
determined under the testing protocol, NMFS will publish a notice in the
Federal Register adding the BRD to the list of certified BRDs in
paragraph (h)(2) of this section providing the specifications for the
newly certified BRD, including any special conditions deemed appropriate
based on the certification testing results.
(iii) A shrimp trawler that is authorized to participate in the pre-
certification phase or to test a BRD in the EEZ for possible
certification has such written authorization on board and is conducting
such test in accordance with the Gulf Of Mexico Bycatch Reduction Device
Testing Protocol Manual is granted a limited exemption from the
[[Page 186]]
BRD requirement specified in paragraph (h)(1) of this section. The
exemption from the BRD requirement is limited to those trawls that are
being used in the certification trials. All other trawls rigged for
fishing must be equipped with certified BRDs.
(i) Gulf reef fish exhibiting trap rash. Gulf reef fish in or from
the Gulf EEZ that exhibit trap rash may be possessed on board a vessel
only if that vessel has a valid fish trap endorsement, as required under
Sec. 622.4(a)(2)(i), on board. Possession of such fish on board a vessel
without a valid fish trap endorsement is prima facie evidence of illegal
trap use and is prohibited. For the purpose of this paragraph, trap rash
is defined as physical damage to fish that characteristically results
from contact with wire fish traps. Such damage includes, but is not
limited to, broken fin spines, fin rays, or teeth; visually obvious loss
of scales; and cuts or abrasions on the body of the fish, particularly
on the head, snout, or mouth.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43959, Aug. 27, 1996; 61
FR 65484, Dec. 13, 1996; 62 FR 18539, Apr. 16, 1997; 63 FR 10568, Mar.
4, 1998; 63 FR 18144, Apr. 14, 1998; 63 FR 38303, July 16, 1998; 64 FR
3628, Jan. 25, 1999; 64 FR 36781, July 8, 1999; 64 FR 37694, July 13,
1999; 64 FR 43941, Aug. 12, 1999; 64 FR 45459, Aug. 20, 1999; 64 FR
52428, Sept. 29, 1999; 64 FR 59126, Nov. 2, 1999; 64 FR 68935, Dec. 9,
1999; 65 FR 16340, Mar. 28, 2000; 65 FR 52957, Aug. 31, 2000]
Effective Date Note: At 65 FR 52957, Aug. 31, 2000, Sec. 622.41 was
amended in paragraph (c)(3)(ii)(B), by removing the word ``Dade'' and
adding in its place ``Miami-Dade'', effective Oct. 2, 2000.
Sec. 622.42 Quotas.
Quotas apply for the fishing year for each species or species group.
Except for the quotas for Gulf and South Atlantic coral, the quotas
include species harvested from state waters adjoining the EEZ. Quotas
for species managed under this part are as follows. (See Sec. 622.32 for
limitations on taking prohibited and limited-harvest species. The
limitations in Sec. 622.32 apply without regard to whether the species
is harvested by a vessel operating under a commercial vessel permit or
by a person subject to the bag limits.)
(a) Gulf reef fish--(1) Commercial quotas. The following quotas
apply to persons who fish under commercial vessel permits for Gulf reef
fish, as required under Sec. 622.4(a)(2)(v).
(i) Red snapper--4.65 million lb (2.11 million kg), round weight,
apportioned as follows:
(A) Two-thirds of the quota specified in Sec. 622.42(a)(1)(i), 3.10
million lb (1.41 million kg), available at noon on February 1 each year,
subject to the closure provisions of Secs. 622.34(l) and
622.43(a)(1)(i).
(B) The remainder available at noon on October 1 each year, subject
to the closure provisions of Secs. 622.34(l) and 622.43(a)(1)(i).
(ii) Deep-water groupers (i.e., yellowedge grouper, misty grouper,
warsaw grouper, snowy grouper, and speckled hind), and, after the quota
for shallow-water grouper is reached, scamp, combined--1.60 million lb
(0.73 million kg), round weight.
(iii) Shallow-water groupers (i.e., all groupers other than deep-
water groupers, jewfish, and Nassau grouper), including scamp before the
quota for shallow-water groupers is reached, combined--9.80 million lb
(4.45 million kg), round weight.
(2) Recreational quota for red snapper. The following quota applies
to persons who harvest red snapper other than under commercial vessel
permits for Gulf reef fish and the commercial quota specified in
paragraph (a)(1)(i) of this section--4.47 million lb (2.03 million kg),
round weight.
(3) Shallow-water groupers, that is, all groupers other than deep-
water groupers, jewfish, and Nassau grouper, including scamp before the
quota for shallow-water groupers is reached, combined--9.8 million lb
(4.4 million kg), round weight.
(b) Gulf and South Atlantic allowable octocoral. The quota for all
persons who harvest allowable octocoral in the EEZ of the Gulf and South
Atlantic is 50,000 colonies. A colony is a continuous group of coral
polyps forming a single unit.
(c) King and Spanish mackerel. King and Spanish mackerel quotas
apply to persons who fish under commercial vessel permits for king or
Spanish mackerel, as required under Sec. 622.4(a)(2)(iii) or (iv). A
fish is counted against the
[[Page 187]]
quota for the area where it is caught when it is first sold.
(1) Migratory groups of king mackerel--(i) Gulf migratory group. The
quota for the Gulf migratory group of king mackerel is 3.39 million lb
(1.54 million kg). The Gulf migratory group is divided into eastern and
western zones separated by 87 deg.31'06'' W. long., which is a line
directly south from the Alabama/Florida boundary. Quotas for the eastern
and western zones are as follows:
(A) Eastern zone--2.34 million lb (1.06 million kg), which is
further divided into quotas as follows:
(1) Florida east coast subzone--1,082,250 lb (490,900 kg).
(2) Florida west coast subzones--(i) Southern--1,082,250 lb (490,900
kg), which is further divided into a quota of 541,125 lb (245,450 kg)
for vessels fishing with hook-and-line and a quota of 541,125 lb
(245,450 kg) for vessels fishing with run-around gillnets.
(ii) Northern--175,500 lb (79,606 kg).
(3) Description of Florida subzones. The Florida east coast subzone
is that part of the eastern zone north of 25 deg.20.4' N. lat., which is
a line directly east from the Miami-Dade/Monroe County, FL, boundary.
The Florida west coast subzone is that part of the eastern zone south
and west of 25 deg.20.4' N. lat. The Florida west coast subzone is
further divided into southern and northern subzones. From November 1
through March 31, the southern subzone is that part of the Florida west
coast subzone that extends south and west from 25 deg.20.4' N. lat. to
26 deg.19.8' N. lat., a line directly west from the Lee/Collier County,
FL boundary (i.e., the area off Collier and Monroe Counties). From April
1 through October 31, the southern subzone is that part of the Florida
west coast subzone that is between 26 deg.19.8' N. lat. and 25 deg.48'
N. lat., which is a line directly west from the Monroe/Collier County,
FL, boundary (i.e., off Collier County). The northern subzone is that
part of the Florida west coast subzone that is between 26 deg.19.8' N.
lat. and 87 deg.31'06'' W. long., which is a line directly south from
the Alabama/Florida boundary.
(B) Western zone--1.05 million lb (0.48 million kg).
(ii) Atlantic migratory group. The quota for the Atlantic migratory
group of king mackerel is 3.71 million lb (1.68 million kg). No more
than 0.40 million lb (0.18 million kg) may be harvested by purse seines.
(2) Migratory groups of Spanish mackerel--(i) Gulf migratory group.
The quota for the Gulf migratory group of Spanish mackerel is 5.187
million lb (2.353 million kg).
(ii) Atlantic migratory group. The quota for the Atlantic migratory
group of Spanish mackerel is 3.87 million lb (1.76 million kg).
(d) Royal red shrimp in the Gulf. The quota for all persons who
harvest royal red shrimp in the Gulf is 392,000 lb (177.8 mt), tail
weight.
(e) South Atlantic snapper-grouper, excluding wreckfish. The quotas
apply to persons who are not subject to the bag limits. (See
Sec. 622.39(a)(1) for applicability of the bag limits.)
(1) Snowy grouper--344,508 lb (156,266 kg), gutted weight, that is,
eviscerated but otherwise whole.
(2) Golden tilefish--1,001,663 lb (454,347 kg), gutted weight, that
is, eviscerated but otherwise whole.
(3) Greater amberjack--1,169,931 lb (530,672 kg), gutted weight,
that is, eviscerated but otherwise whole.
(f) Wreckfish. The quota for wreckfish applies to wreckfish
shareholders, or their employees, contractors, or agents, and is 2
million lb (907,185 kg), round weight. See Sec. 622.15 for information
on the wreckfish shareholder under the ITQ system.
[61 FR 34934, July 3, 1996, as amended at 61 FR 48643, Sept. 16, 1996;
62 FR 13988, Mar. 25, 1997; 62 FR 23674, May 1, 1997; 62 FR 46679, Sept.
4, 1997; 62 FR 67723, Dec. 30, 1997; 63 FR 8356, Feb. 19, 1998; 63 FR
10569, Mar. 4, 1998; 64 FR 3629, Jan. 25, 1999; 64 FR 45459, Aug. 20,
1999; 64 FR 59126, Nov. 2, 1999; 65 FR 16340, Mar. 28, 2000; 65 FR
30363, May 11, 2000; 65 FR 41016, July 3, 2000; 65 FR 50162, Aug. 17,
2000]
Sec. 622.43 Closures.
(a) General. When a quota specified in Sec. 622.42 is reached, or is
projected to be reached, the Assistant Administrator will file a
notification to that effect with the Office of the Federal Register. On
and after the effective date of such notification, for the remainder of
the fishing year, the following closure restrictions apply:
[[Page 188]]
(1) Gulf reef fish--(i) Commercial quotas. The bag and possession
limits specified in Sec. 622.39(b) apply to all harvest or possession in
or from the Gulf EEZ of the indicated species, and the sale or purchase
of the indicated species taken from the Gulf EEZ is prohibited. In
addition, the bag and possession limits for red snapper apply on board a
vessel for which a commercial permit for Gulf reef fish has been issued,
as required under Sec. 622.4(a)(2)(v), without regard to where such red
snapper were harvested. However, the bag and possession limits for red
snapper apply only when the recreational quota for red snapper has not
been reached and the bag and possession limit has not been reduced to
zero under paragraph (a)(1)(ii) of this section.
(ii) Recreational quota for red snapper. The bag and possession
limit for red snapper in or from the Gulf EEZ is zero.
(2) Gulf and South Atlantic allowable octocoral. Allowable octocoral
may not be harvested or possessed in the Gulf EEZ or South Atlantic EEZ
and the sale or purchase of allowable octocoral in or from the Gulf EEZ
or South Atlantic EEZ is prohibited.
(3) King and Spanish mackerel. The closure provisions of this
paragraph (a)(3) do not apply to Atlantic migratory group Spanish
mackerel, which are managed under the commercial trip limits specified
in Sec. 622.44(b) in lieu of the closure provisions of this section.
(i) A person aboard a vessel for which a commercial permit for king
or Spanish mackerel has been issued, as required under
Sec. 622.4(a)(2)(iii) or (iv), may not fish for king or Spanish mackerel
in the EEZ or retain king or Spanish mackerel in or from the EEZ under a
bag or possession limit specified in Sec. 622.39(c) for the closed
species, migratory group, zone, subzone, or gear, except as provided for
under paragraph (a)(3)(ii) of this section.
(ii) A person aboard a vessel for which the permit indicates both
charter vessel/headboat for coastal migratory pelagic fish and
commercial king or Spanish mackerel may continue to retain fish under a
bag and possession limit specified in Sec. 622.39(c), provided the
vessel is operating as a charter vessel or headboat.
(iii) The sale or purchase of king or Spanish mackerel of the closed
species, migratory group, zone, subzone, or gear type is prohibited,
including such king or Spanish mackerel taken under the bag limits.
(4) Royal red shrimp in the Gulf. Royal red shrimp in or from the
Gulf EEZ may not be retained, and the sale or purchase of royal red
shrimp taken from the Gulf EEZ is prohibited.
(5) South Atlantic snapper-grouper, excluding wreckfish--(i) Greater
amberjack. The bag limit specified in Sec. 622.39(d)(1)(i) and the
possession limits specified in Sec. 622.39(d)(2) apply to all harvest or
possession of greater amberjack in or from the South Atlantic EEZ, and
the sale or purchase of greater amberjack taken from the EEZ is
prohibited. In addition, the bag and possession limits for greater
amberjack and the prohibition on sale/purchase apply in the South
Atlantic on board a vessel for which a valid Federal commercial or
charter vessel/headboat permit for South Atlantic snapper-grouper has
been issued, without regard to where such greater amberjack were
harvested.
(ii) Golden tilefish and snowy grouper. Golden tilefish and snowy
grouper, for which there are quotas, are managed under the commercial
trip limits specified in Sec. 622.44(c) in lieu of the closure
provisions of this section.
(6) Wreckfish. Wreckfish in or from the South Atlantic EEZ may not
be retained, and the sale or purchase of wreckfish taken from the South
Atlantic EEZ is prohibited.
(b) Exception to prohibition on sale/purchase. (1) The prohibition
on sale/purchase during a closure for Gulf reef fish, king and Spanish
mackerel, royal red shrimp, greater amberjack, or wreckfish in
paragraphs (a)(1), (a)(3)(iii), (a)(4), (a)(5)(i), or (a)(6) of this
section does not apply to the indicated species that were harvested,
landed ashore, and sold prior to the effective date of the closure and
were held in cold storage by a dealer or processor.
(2) The prohibition on sale/purchase during a closure for allowable
octocoral in paragraph (a)(2) of this
[[Page 189]]
section does not apply to allowable octocoral that was harvested and
landed ashore prior to the effective date of the closure.
(c) Reopening. When a fishery has been closed based on a projection
of the quota specified in Sec. 622.42 being reached and subsequent data
indicate that the quota was not reached, the Assistant Administrator may
file a notification to that effect with the Office of the Federal
Register. Such notification may reopen the fishery to provide an
opportunity for the quota to be reached.
[61 FR 34934, July 3, 1996, as amended at 62 FR 13988, Mar. 25, 1997; 62
FR 46679, Sept. 4, 1997; 62 FR 67723, Dec. 30, 1997; 63 FR 10569, Mar.
4, 1998; 64 FR 3629, Jan. 25, 1999; 64 FR 59126, Nov. 2, 1999]
Sec. 622.44 Commercial trip limits.
Commercial trip limits are limits on the amount of the applicable
species that may be possessed on board or landed, purchased, or sold
from a vessel per day. A person who fishes in the EEZ may not combine a
trip limit specified in this section with any trip or possession limit
applicable to state waters. A species subject to a trip limit specified
in this section taken in the EEZ may not be transferred at sea,
regardless of where such transfer takes place, and such species may not
be transferred in the EEZ. For fisheries governed by this part,
commercial trip limits apply as follows (all weights are round or
eviscerated weights):
(a) King mackerel--(1) Atlantic group. The following trip limits
apply to vessels for which commercial permits for king mackerel have
been issued, as required under Sec. 622.4(a)(2)(iii):
(i) North of 29 deg.25' N. lat., which is a line directly east from
the Flagler/Volusia County, FL, boundary, king mackerel in or from the
EEZ may not be possessed on board or landed from a vessel in a day in
amounts exceeding 3,500 lb (1,588 kg).
(ii) In the area between 29 deg.25' N. lat. and 28 deg.47.8' N.
lat., which is a line directly east from the Volusia/Brevard County, FL,
boundary, king mackerel in or from the EEZ may not be possessed on board
or landed from a vessel in a day in amounts exceeding 3,500 lb (1,588
kg) from April 1 through October 31.
(iii) In the area between 28 deg.47.8' N. lat. and 25 deg.20.47' N.
lat., which is a line directly east from the Miami-Dade/Monroe County,
FL, boundary, king mackerel in or from the EEZ may not be possessed on
board or landed from a vessel in a day in amounts exceeding 75 fish from
April 1 through October 31.
(iv) In the area between 25 deg.20.4' N. lat. and 25 deg.48' N.
lat., which is a line directly west from the Monroe/Collier County, FL,
boundary, king mackerel in or from the EEZ may not be possessed on board
or landed from a vessel in a day in amounts exceeding 1,250 lb (567 kg)
from April 1 through October 31.
(2) Gulf group. Commercial trip limits are established in the
eastern and western zones as follows. (See Sec. 622.42(c)(1)(i) for
specification of the eastern and western zones and
Sec. 622.42(c)(1)(i)(A)(3) for specifications of the subzones in the
eastern zone.)
(i) Eastern zone-Florida east coast subzone. In the Florida east
coast subzone, king mackerel in or from the EEZ may be possessed on
board or landed from a vessel for which a commercial permit for king
mackerel has been issued, as required under Sec. 622.4(a)(2)(iii), from
November 1 each fishing year until the subzone's fishing year quota of
king mackerel has been harvested or until March 31, whichever occurs
first, in amounts not exceeding 50 fish per day.
(ii) Eastern zone-Florida west coast subzone--(A) Gillnet gear. (1)
In the southern Florida west coast subzone, king mackerel in or from the
EEZ may be possessed on board or landed from a vessel for which a
commercial permit with a gillnet endorsement has been issued, as
required under Sec. 622.4(a)(2)(ii), in amounts not exceeding 25,000 lb
(11,340 kg) per day, provided the gillnet fishery for Gulf group king
mackerel is not closed under Sec. 622.34(p) or Sec. 622.43(a).
(2) In the southern Florida west coast subzone:
(i) King mackerel in or from the EEZ may be possessed on board or
landed from a vessel that uses or has on board a run-around gillnet on a
trip only
[[Page 190]]
when such vessel has on board a commercial permit for king mackerel with
a gillnet endorsement.
(ii) King mackerel from the southern west coast subzone landed by a
vessel for which such commercial permit with endorsement has been issued
will be counted against the run-around gillnet quota of
Sec. 622.42(c)(1)(i)(A)(2)(i).
(iii) King mackerel in or from the EEZ harvested with gear other
than run-around gillnet may not be retained on board a vessel for which
such commercial permit with endorsement has been issued.
(B) Hook-and-line gear. In the Florida west coast subzone, king
mackerel in or from the EEZ may be possessed on board or landed from a
vessel with a commercial permit for king mackerel, as required by
Sec. 622.4(a)(2)(iii), and operating under the hook-and-line gear quotas
in Sec. 622.42(c)(1)(i)(A)(2)(i) or (c)(1)(i)(A)(2)(ii):
(1) From July 1, each fishing year, until 75 percent of the
respective northern or southern subzone's hook-and-line gear quota has
been harvested--in amounts not exceeding 1,250 lb (567 kg) per day.
(2) From the date that 75 percent of the respective northern or
southern subzone's hook-and-line gear quota has been harvested, until a
closure of the respective northern or southern subzone's fishery for
vessels fishing with hook-and-line gear has been effected under
Sec. 622.43(a)--in amounts not exceeding 500 lb (227 kg) per day.
(iii) Notice of trip limit changes. The Assistant Administrator, by
filing a notification of trip limit change with the Office of the
Federal Register, will effect the trip limit changes specified in
paragraphs (a)(2)(i) and (a)(2)(ii)(B) of this section when the
requisite harvest level has been reached or is projected to be reached.
(iv) Western zone. In the western zone, king mackerel in or from the
EEZ may be possessed on board or landed from a vessel for which a
commercial permit for king mackerel has been issued, as required under
Sec. 622.4(a)(2)(ii), from July 1, each fishing year, until a closure of
the western zone's fishery has been effected under Sec. 622.43(a)--in
amounts not exceeding 3,000 lb (1,361 kg) per day.
(b) Spanish mackerel. (1) Commercial trip limits are established for
Atlantic migratory group Spanish mackerel as follows:
(i) North of 30 deg.42'45.6" N. lat., which is a line directly east
from the Georgia/Florida boundary, Spanish mackerel in or from the EEZ
may not be possessed on board or landed in a day from a vessel for which
a permit for Spanish mackerel has been issued, as required under
Sec. 622.4(a)(2)(iv), in amounts exceeding 3,500 lb (1,588 kg).
(ii) South of 30 deg.42'45.6" N. lat., Spanish mackerel in or from
the EEZ may not be possessed on board or landed in a day from a vessel
for which a permit for Spanish mackerel has been issued, as required
under Sec. 622.4(a)(2)(iv)--
(A) From April 1 through November 30, in amounts exceeding 3,500 lb
(1,588 kg).
(B) From December 1 until 75 percent of the adjusted quota is taken,
in amounts as follows:
(1) Mondays through Fridays--unlimited.
(2) Saturdays and Sundays--not exceeding 1,500 lb (680 kg).
(C) After 75 percent of the adjusted quota is taken until 100
percent of the adjusted quota is taken, in amounts not exceeding 1,500
lb (680 kg).
(D) After 100 percent of the adjusted quota is taken through the end
of the fishing year, in amounts not exceeding 500 lb (227kg).
(2) For the purpose of paragraph (b)(1)(ii) of this section, the
adjusted quota is 3.62 million lb (1.64 million kg). The adjusted quota
is the quota for Atlantic migratory group Spanish mackerel reduced by an
amount calculated to allow continued harvests of Atlantic migratory
group Spanish mackerel at the rate of 500 lb (227 kg) per vessel per day
for the remainder of the fishing year after the adjusted quota is
reached. By filing a notification with the Office of the Federal
Register, the Assistant Administrator will announce when 75 percent and
100 percent of the adjusted quota is reached or is projected to be
reached.
(3) For the purpose of paragraph (b)(1)(ii) of this section, a day
starts at 6 a.m., local time, and extends for 24 hours. If a vessel
terminates a trip prior to 6 a.m., but retains Spanish
[[Page 191]]
mackerel on board after that time, the Spanish mackerel retained on
board will not be considered in possession during the succeeding day,
provided the vessel is not underway between 6 a.m. and the time such
Spanish mackerel are unloaded, and provided such Spanish mackerel are
unloaded prior to 6 p.m.
(c) South Atlantic snapper-grouper. When a vessel fishes on a trip
in the South Atlantic EEZ, the vessel trip limits specified in this
paragraph (c) apply, provided persons aboard the vessel are not subject
to the bag limits. See Sec. 622.39(a) for applicability of the bag
limits.
(1) Trip-limited permits. A vessel for which a trip-limited permit
for South Atlantic snapper-grouper has been issued is limited to 225 lb
(102.1 kg) of snapper-grouper.
(2) Golden tilefish. (i) Until the fishing year quota specified in
Sec. 622.42(e)(2) is reached, 5,000 lb (2,268 kg).
(ii) After the fishing year quota specified in Sec. 622.42(e)(2) is
reached, 300 lb (136 kg).
(3) Snowy grouper. (i) Until the fishing year quota specified in
Sec. 622.42(e)(1) is reached, 2,500 lb (1,134 kg).
(ii) After the fishing year quota specified in Sec. 622.42(e)(1) is
reached, 300 lb (136 kg).
(4) Red porgy. (i) From May 1 through December 31, 50 lb (22.7 kg).
(ii) From January 1 through April 30, the seasonal harvest limit
specified in Sec. 622.36(b)(5) applies.
(5) Greater amberjack. Until the fishing year quota specified in
Sec. 622.42(e)(3) is reached, 1,000 lb (454 kg). See Sec.
622.43(a)(5)(i) for the limitations regarding greater amberjack after
the fishing year quota is reached.
(d) Gulf red snapper. (1) The trip limit for red snapper in or from
the Gulf for a vessel that has on board a valid commercial permit for
Gulf reef fish and a valid Class 1 red snapper license is 2,000 lb (907
kg), round or eviscerated weight.
(2) The trip limit for red snapper in or from the Gulf for a vessel
that has on board a valid commercial permit for Gulf reef fish and a
valid Class 2 red snapper license is 200 lb (91 kg), round or
eviscerated weight.
(3) The trip limit for red snapper in or from the Gulf for any other
vessel for which a commercial permit for Gulf reef fish has been issued
is zero.
(4) As a condition of a commercial vessel permit for Gulf reef fish,
as required under Sec. 622.4(a)(2)(v), without regard to where red
snapper are harvested or possessed, a vessel that has been issued such
permit--
(i) May not possess red snapper in or from the Gulf in excess of the
appropriate vessel trip limit, as specified in paragraphs (e)(1) through
(3) of this section.
(ii) May not transfer or receive at sea red snapper in or from the
Gulf.
(e) Caribbean queen conch. A person who fishes in the Caribbean EEZ
and is not subject to the bag limit may not possess in or from the
Caribbean EEZ more than 150 queen conch per day.
[61 FR 34934, July 3, 1996, as amended at 61 FR 48415, Sept. 13, 1996;
61 FR 48851, Sept. 17, 1996; 61 FR 65484, Dec. 13, 1996; 62 FR 23674,
May 1, 1997; 62 FR 67723, Dec. 30, 1997; 63 FR 8356, Feb. 19, 1998; 63
FR 10569, Mar. 4, 1998; 63 FR 38303, July 16, 1998; 64 FR 45459, Aug.
20, 1999; 64 FR 59126, Nov. 2, 1999; 65 FR 16341, Mar. 28, 2000; 65 FR
30364, May 11, 2000; 65 FR 41016, July 3, 2000; 65 FR 51252, Aug. 23,
2000; 65 FR 55205, Sept. 13, 2000]
Effective Date Note: At 65 FR 55205, Sept. 13, 2000, Sec. 622.44 was
amended by adding paragraph (c)(5), effective Oct. 13, 2000.
Sec. 622.45 Restrictions on sale/purchase.
In addition to restrictions on sale/purchase related to closures, as
specified in Sec. 622.43 (a) and (b), restrictions on sale and/or
purchase apply as follows.
(a) Caribbean coral reef resource. (1) No person may sell or
purchase a Caribbean prohibited coral harvested in the Caribbean EEZ.
(2) A Caribbean prohibited coral that is sold in Puerto Rico or the
U.S. Virgin Islands will be presumed to have been harvested in the
Caribbean EEZ, unless it is accompanied by documentation showing that it
was harvested elsewhere. Such documentation must contain:
(i) The information specified in subpart K of part 300 of this title
for marking containers or packages of fish or wildlife that are
imported, exported, or transported in interstate commerce.
[[Page 192]]
(ii) The name and home port of the vessel, or the name and address
of the individual, harvesting the Caribbean prohibited coral.
(iii) The port and date of landing the Caribbean prohibited coral.
(iv) A statement signed by the person selling the Caribbean
prohibited coral attesting that, to the best of his or her knowledge,
information, and belief, such Caribbean prohibited coral was harvested
other than in the Caribbean EEZ or the waters of Puerto Rico or the U.S.
Virgin Islands.
(b) Caribbean reef fish. A live red hind or live mutton snapper in
or from the Caribbean EEZ may not be sold or purchased and used in the
marine aquarium trade.
(c) Gulf reef fish. (1) A Gulf reef fish harvested in the EEZ on
board a vessel that does not have a valid commercial permit for Gulf
reef fish, as required under Sec. 622.4(a)(2)(v), or a Gulf reef fish
possessed under the bag limits specified in Sec. 622.39(b), may not be
sold or purchased.
(2) A Gulf reef fish harvested on board a vessel that has a valid
commercial permit for Gulf reef fish may be sold only to a dealer who
has a valid permit for Gulf reef fish, as required under
Sec. 622.4(a)(4).
(3) A Gulf reef fish harvested in the EEZ may be purchased by a
dealer who has a valid permit for Gulf reef fish, as required under
Sec. 622.4(a)(4), only from a vessel that has a valid commercial permit
for Gulf reef fish.
(4) From February 15 until March 15, each year, no person may sell
or purchase a gag, black grouper, or red grouper harvested from the Gulf
by a vessel with a valid Federal commercial permit for Gulf reef fish.
This prohibition on sale/purchase does not apply to gag, black grouper,
or red grouper that were harvested, landed ashore, and sold prior to
February 15 and were held in cold storage by a dealer or processor.
(d) South Atlantic snapper-grouper. (1) A person may sell South
Atlantic snapper-grouper harvested in the EEZ only to a dealer who has a
valid permit for South Atlantic snapper-grouper, as required under
Sec. 622.4(a)(4).
(2) A person may purchase South Atlantic snapper-grouper harvested
in the EEZ only from a vessel that has a valid commercial permit for
South Atlantic snapper-grouper, as required under Sec. 622.4(a)(2)(vi),
or from a person who has a valid commercial license to sell fish in the
state where the purchase occurs.
(3) Except for the sale or purchase of South Atlantic snapper-
grouper harvested by a vessel that has a valid commercial permit for
South Atlantic snapper-grouper, the sale or purchase of such fish is
limited to the bag limits specified in Sec. 622.39(d)(1).
(4) A warsaw grouper or speckled hind in or from the South Atlantic
EEZ may not be sold or purchased.
(5) During January, February, March, and April, no person may sell
or purchase a red porgy harvested from the South Atlantic EEZ or, if
harvested by a vessel for which a valid Federal commercial or charter
vessel/headboat permit for South Atlantic snapper-grouper has been
issued, harvested from the South Atlantic. The prohibition on sale/
purchase during January through April does not apply to red porgy that
were harvested, landed ashore, and sold prior to January 1 and were held
in cold storage by a dealer or processor. This prohibition also does not
apply to a dealer's purchase or sale of red porgy harvested from an area
other than the South Atlantic, provided such fish is accompanied by
documentation of harvest outside the South Atlantic. Such documentation
must contain:
(i) The information specified in 50 CFR part 300 subpart K for
marking containers or packages of fish or wildlife that are imported,
exported, or transported in interstate commerce;
(ii) The official number, name, and home port of the vessel
harvesting the red porgy;
(iii) The port and date of offloading from the vessel harvesting the
red porgy; and
(iv) A statement signed by the dealer attesting that the red porgy
was harvested from an area other than the South Atlantic.
(6) During April, no person may sell or purchase a greater amberjack
harvested from the South Atlantic EEZ or, if harvested by a vessel for
which a valid Federal commercial or charter vessel/headboat permit for
South Atlantic snapper-grouper has been issued,
[[Page 193]]
harvested from the South Atlantic. The prohibition on sale/purchase
during April does not apply to greater amberjack that were harvested,
landed ashore, and sold prior to April 1 and were held in cold storage
by a dealer or processor. This prohibition also does not apply to a
dealer's purchase or sale of greater amberjack harvested from an area
other than the South Atlantic, provided such fish is accompanied by
documentation of harvest outside the South Atlantic. Such documentation
must contain:
(i) The information specified in 50 CFR part 300 subpart K for
marking containers or packages of fish or wildlife that are imported,
exported, or transported in interstate commerce;
(ii) The official number, name, and home port of the vessel
harvesting the greater amberjack;
(iii) The port and date of offloading from the vessel harvesting the
greater amberjack; and
(iv) A statement signed by the dealer attesting that the greater
amberjack was harvested from an area other than the South Atlantic.
(7) During March and April, no person may sell or purchase a gag or
black grouper harvested from the South Atlantic EEZ or, if harvested by
a vessel for which a valid Federal commercial or charter vessel/headboat
permit for South Atlantic snapper-grouper has been issued, harvested
from the South Atlantic. The prohibition on sale/purchase during March
and April does not apply to gag or black grouper that were harvested,
landed ashore, and sold prior to March 1 and were held in cold storage
by a dealer or processor. This prohibition also does not apply to a
dealer's purchase or sale of gag or black grouper harvested from an area
other than the South Atlantic, provided such fish is accompanied by
documentation of harvest outside the South Atlantic. Such documentation
must contain:
(i) The information specified in 50 CFR part 300 subpart K for
marking containers or packages of fish or wildlife that are imported,
exported, or transported in interstate commerce;
(ii) The official number, name, and home port of the vessel
harvesting the gag or black grouper;
(iii) The port and date of offloading from the vessel harvesting the
gag or black grouper; and
(iv) A statement signed by the dealer attesting that the gag or
black grouper was harvested from an area other than the South Atlantic.
(e) Gulf and South Atlantic wild live rock. Wild live rock in or
from the Gulf EEZ or South Atlantic EEZ may not be sold or purchased.
The prohibition on sale or purchase does not apply to wild live rock
from the South Atlantic EEZ that was harvested and landed prior to
January 1, 1996, or to wild live rock from the Gulf EEZ that was
harvested and landed prior to January 1, 1997.
(f) South Atlantic golden crab. (1) A female golden crab in or from
the South Atlantic EEZ may not be sold or purchased.
(2) A golden crab harvested in the South Atlantic EEZ on board a
vessel that does not have a valid commercial permit for golden crab, as
required under Sec. 622.4(a)(2)(x), may not be sold or purchased.
(3) A golden crab harvested on board a vessel that has a valid
commercial permit for golden crab may be sold only to a dealer who has a
valid permit for golden crab, as required under Sec. 622.4(a)(4).
(4) A golden crab harvested in the South Atlantic EEZ may be
purchased by a dealer who has a valid permit for golden crab, as
required under Sec. 622.4(a)(4), only from a vessel that has a valid
commercial permit for golden crab.
(g) South Atlantic rock shrimp. (1) Rock shrimp harvested in the
South Atlantic EEZ on board a vessel that does not have a valid
commercial permit for rock shrimp, as required under
Sec. 622.4(a)(2)(viii), may not be transferred, received, sold, or
purchased.
(2) Rock shrimp harvested on board a vessel that has a valid
commercial permit for rock shrimp may be transferred or sold only to a
dealer who has a valid permit for rock shrimp, as required under
Sec. 622.4(a)(4).
(3) Rock shrimp harvested in the South Atlantic EEZ may be received
or purchased by a dealer who has a valid permit for rock shrimp, as
required under Sec. 622.4(a)(4), only from a vessel
[[Page 194]]
that has a valid commercial permit for rock shrimp.
(h) Cut-off (damaged) king or Spanish mackerel. A person may not
sell or purchase a cut-off (damaged) king or Spanish mackerel that does
not comply with the minimum size limits specified in Sec. 622.37(c)(2)
or (c)(3), respectively, or that is in excess of the trip limits
specified in Sec. 622.44(a) or (b), respectively.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43960, Aug. 27, 1996; 61
FR 47449, Sept. 9, 1996; 63 FR 10569, Mar. 4, 1998; 63 FR 57590, Oct.
28, 1998; 64 FR 3629, Jan. 25, 1999; 64 FR 59126, Nov. 2, 1999; 65 FR
16341, Mar. 28, 2000; 65 FR 31831, May 19, 2000; 65 FR 51253, Aug. 23,
2000]
Sec. 622.46 Prevention of gear conflicts.
(a) No person may knowingly place in the Gulf EEZ any article,
including fishing gear, that interferes with fishing or obstructs or
damages fishing gear or the fishing vessel of another; or knowingly use
fishing gear in such a fashion that it obstructs or damages the fishing
gear or fishing vessel of another.
(b) In accordance with the procedures and restrictions of the FMP
for the Shrimp Fishery of the Gulf of Mexico, the RA may modify or
establish separation zones for shrimp trawling and the use of fixed gear
to prevent gear conflicts. Necessary prohibitions or restrictions will
be published in the Federal Register.
(c) In accordance with the procedures and restrictions of the FMP
for Coastal Migratory Pelagic Resources, when the RA determines that a
conflict exists in the king mackerel fishery between hook-and-line and
gillnet fishermen in the South Atlantic EEZ off the east coast of
Florida between 27 deg.00.6' N. lat. and 27 deg.50.0' N. lat., the RA
may prohibit or restrict the use of hook-and-line and/or gillnets in all
or a portion of that area. Necessary prohibitions or restrictions will
be published in the Federal Register.
[61 FR 34934, July 3, 1996, as amended at 64 FR 59126, Nov. 2, 1999]
Sec. 622.47 Gulf groundfish trawl fishery.
Gulf groundfish trawl fishery means fishing in the Gulf EEZ by a
vessel that uses a bottom trawl, the unsorted catch of which is ground
up for animal feed or industrial products.
(a) Other provisions of this part notwithstanding, the owner or
operator of a vessel in the Gulf groundfish trawl fishery is exempt from
the following requirements and limitations for the vessel's unsorted
catch of Gulf reef fish:
(1) The requirement for a valid commercial vessel permit for Gulf
reef fish in order to sell Gulf reef fish.
(2) Minimum size limits for Gulf reef fish.
(3) Bag limits for Gulf reef fish.
(4) The prohibition on sale of Gulf reef fish after a quota closure.
(b) Other provisions of this part notwithstanding, a dealer in a
Gulf state is exempt from the requirement for a dealer permit for Gulf
reef fish to receive Gulf reef fish harvested from the Gulf EEZ by a
vessel in the Gulf groundfish trawl fishery.
Sec. 622.48 Adjustment of management measures.
In accordance with the framework procedures of the applicable FMPs,
the RA may establish or modify the following items:
(a) Caribbean coral reef resources. Species for which management
measures may be specified; prohibited species; harvest limitations,
including quotas, trip, or daily landing limits; gear restrictions;
closed seasons or areas; and marine conservation districts.
(b) Caribbean reef fish. Size limits, closed seasons or areas, fish
trap mesh size, and the threshold level for overfishing.
(c) Coastal migratory pelagic fish. For a species or species group:
Age-structured analyses, target date for rebuilding an overfished
species, MSY (or proxy), stock biomass achieved by fishing at MSY
(BMSY) (or proxy), maximum fishing mortality threshold
(MFMT), minimum stock size threshold (MSST), OY, TAC, quota (including a
quota of zero), bag limit (including a bag limit of zero), size limits,
vessel trip limits, closed seasons or areas and reopenings, gear
restrictions (ranging from regulation to complete prohibition),
reallocation of the commercial/recreational allocation of Atlantic
[[Page 195]]
group Spanish mackerel, permit requirements, definitions of essential
fish habitat, and essential fish habitat HAPCs or Coral HAPCs.
(d) Gulf reef fish. (1) For a species or species group: Target date
for rebuilding an overfished species, TAC, bag limits, size limits,
vessel trip limits, closed seasons or areas, gear restrictions, quotas,
MSY (or proxy), OY, and estimates of stock biomass achieved by fishing
at MSY (BMSY), minimum stock size threshold (MSST), and
maximum fishing mortality threshold (MFMT).
(2) SMZs and the gear restrictions applicable in each.
(e) Gulf royal red shrimp. MSY, OY, and TAC.
(f) South Atlantic snapper-grouper and wreckfish. Biomass levels,
age-structured analyses, target dates for rebuilding overfished species,
MSY, ABC, TAC, quotas, trip limits, bag limits, minimum sizes, gear
restrictions (ranging from regulation to complete prohibition), seasonal
or area closures, definitions of essential fish habitat, essential fish
habitat, essential fish habitat HAPCs or Coral HAPCs, and restrictions
on gear and fishing activities applicable in essential fish habitat and
essential fish habitat HAPCs.
(g) South Atlantic golden crab. Biomass levels, age-structured
analyses, MSY, ABC, TAC, quotas (including quotas equal to zero), trip
limits, minimum sizes, gear regulations and restrictions, permit
requirements, seasonal or area closures, time frame for recovery of
golden crab if overfished, fishing year (adjustment not to exceed 2
months), observer requirements, authority for the RA to close the
fishery when a quota is reached or is projected to be reached,
definitions of essential fish habitat, and essential fish habitat HAPCs
or Coral HAPCs.
(h) South Atlantic shrimp. Biomass levels, age-structured analyses,
BRD certification criteria, BRD specifications, BRD testing protocol,
certified BRDs, nets required to use BRDs, times and locations when the
use of BRDs is required, definitions of essential fish habitat, and
essential fish habitat HAPCs or Coral HAPCs.
(i) Gulf shrimp. Bycatch reduction criteria, BRD certification and
decertification criteria, BRD testing protocol, certified BRDs, and BRD
specifications.
(j) Gulf red drum. Target date for rebuilding an overfished species,
MSY (or proxy), stock biomass achieved by fishing at MSY
(BMSY), OY, TAC, minimum stock size threshold (MSST), maximum
fishing mortality threshold (MFMT), escapement rates for juvenile fish,
bag limits, size limits, gear harvest limits, and other restrictions
required to prevent exceeding allocations or quotas.
(k) Atlantic coast red drum. Definitions of essential fish habitat
and essential fish habitat HAPCs or Coral HAPCs.
(l) South Atlantic coral, coral reefs, and live/hard bottom
habitats. Definitions of essential fish habitat and essential fish
habitat HAPCs or Coral HAPCs.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43960, Aug. 27, 1996; 62
FR 13988, Mar. 25, 1997; 62 FR 18539, Apr. 16, 1997; 63 FR 10569, Mar.
4, 1998; 63 FR 18144, Apr. 14, 1998; 64 FR 36781, July 8, 1999; 65 FR
31835, May 19, 2000; 65 FR 37296, June 14, 2000; 65 FR 51253, Aug. 23,
2000]
Appendix A to Part 622--Species Tables
Table 1 of Appendix A to Part 622--Caribbean Coral Reef Resources
I. Sponges--Phylum Porifera
A. Demosponges--Class Demospongiae
Aphimedon compressa, Erect rope sponge
Chondrilla nucula, Chicken liver sponge
Cynachirella alloclada
Geodia neptuni, Potato sponge
Haliclona sp., Finger sponge
Myriastra sp.
Niphates digitalis, Pink vase sponge
N. erecta, Lavender rope sponge
Spinosella policifera
S. vaginalis
Tethya crypta
II. Coelenterates--Phylum Coelenterata
A. Hydrocorals--Class Hydrozoa
1. Hydroids--Order Athecatae
Family Milleporidae
Millepora spp., Fire corals
Family Stylasteridae
Stylaster roseus, Rose lace corals
B. Anthozoans--Class Anthozoa
1. Soft corals--Order Alcyonacea
Family Anthothelidae
Erythropodium caribaeorum, Encrusting gorgonian
Iciligorgia schrammi, Deepwater sea fan
Family Briaridae
Briareum asbestinum, Corky sea finger
Family Clavulariidae
Carijoa riisei
[[Page 196]]
Telesto spp.
2. Gorgonian corals--Order Gorgonacea
Family Ellisellidae
Ellisella spp., Sea whips
Family Gorgoniidae
Gorgonia flabellum, Venus sea fan
G. mariae, Wide-mesh sea fan
G. ventalina, Common sea fan
Pseudopterogorgia acerosa, Sea plume
P. albatrossae
P. americana, Slimy sea plume
P. bipinnata, Bipinnate plume
P. rigida
Pterogorgia anceps, Angular sea whip
P. citrina, Yellow sea whip
Family Plexauridae
Eunicea calyculata, Warty sea rod
E. clavigera
E. fusca, Doughnut sea rod
E. knighti
E. laciniata
E. laxispica
E. mammosa, Swollen-knob
E. succinea, Shelf-knob sea rod
E. touneforti
Muricea atlantica
M. elongata, Orange spiny rod
M. laxa, Delicate spiny rod
M. muricata, Spiny sea fan
M. pinnata, Long spine sea fan
Muriceopsis sp.
M. flavida, Rough sea plume
M. sulphurea
Plexaura flexuosa, Bent sea rod
P. homomalla, Black sea rod
Plexaurella dichotoma, Slit-pore sea rod
P. fusifera
P. grandiflora
P. grisea
P. nutans, Giant slit-pore
Pseudoplexaura crucis
P. flagellosa
P. porosa, Porous sea rod
P. wagenaari
3. Hard Corals--Order Scleractinia
Family Acroporidae
Acropora cervicornis, Staghorn coral
A. palmata, Elkhorn coral
A. prolifera, Fused staghorn
Family Agaricidae
Agaricia agaricities, Lettuce leaf coral
A. fragilis, Fragile saucer
A. lamarcki, Lamarck's sheet
A. tenuifolia, Thin leaf lettuce
Leptoseris cucullata, Sunray lettuce
Family Astrocoeniidae
Stephanocoenia michelinii, Blushing star
Family Caryophyllidae
Eusmilia fastigiata, Flower coral
Tubastrea aurea, Cup coral
Family Faviidae
Cladocora arbuscula, Tube coral
Colpophyllia natans, Boulder coral
Diploria clivosa, Knobby brain coral
D. labyrinthiformis, Grooved brain
D. strigosa, Symmetrical brain
Favia fragum, Golfball coral
Manicina areolata, Rose coral
M. mayori, Tortugas rose coral
Montastrea annularis, Boulder star coral
M. cavernosa, Great star coral
Solenastrea bournoni, Smooth star coral
Family Meandrinidae
Dendrogyra cylindrus, Pillar coral
Dichocoenia stellaris, Pancake star
D. stokesi, Elliptical star
Meandrina meandrites, Maze coral
Family Mussidae
Isophyllastrea rigida, Rough star coral
Isophyllia sinuosa, Sinuous cactus
Mussa angulosa, Large flower coral
Mycetophyllia aliciae, Thin fungus coral
M. danae, Fat fungus coral
M. ferox, Grooved fungus
M. lamarckiana, Fungus coral
Scolymia cubensis, Artichoke coral
S. lacera, Solitary disk
Family Oculinidae
Oculina diffusa, Ivory bush coral
Family Pocilloporidae
Madracis decactis, Ten-ray star coral
M. mirabilis, Yellow pencil
Family Poritidae
Porites astreoides, Mustard hill coral
P. branneri, Blue crust coral
P. divaricata, Small finger coral
P. porites, Finger coral
Family Rhizangiidae
Astrangia solitaria, Dwarf cup coral
Phyllangia americana, Hidden cup coral
Family Siderastreidae
Siderastrea radians, Lesser starlet
S. siderea, Massive starlet
4. Black Corals--Order Antipatharia
Antipathes spp., Bushy black coral
Stichopathes spp., Wire coral
5. Anemones--Order Actiniaria
Aiptasia tagetes, Pale anemone
Bartholomea annulata, Corkscrew anemone
Condylactis gigantea, Giant pink-tipped anemone
Hereractis lucida, Knobby anemone
Lebrunia spp., Staghorn anemone
Stichodactyla helianthus, Sun anemone
6. Colonial Anemones--Order Zoanthidea
Zoanthus spp., Sea mat
7. False Corals--Order Corallimorpharia
Discosoma spp. (formerly Rhodactis), False coral
Ricordia florida, Florida false coral
III. Annelid Worms--Phylum Annelida
A. Polychaetes--Class Polychaeta
Family Sabellidae, Feather duster worms
Sabellastarte spp., Tube worms
S. magnifica, Magnificent duster
Family Serpulidae
Spirobranchus giganteus, Christmas tree worm
IV. Mollusks--Phylum Mollusca
A. Gastropods--Class Gastropoda
Family Elysiidae
Tridachia crispata, Lettuce sea slug
Family Olividae
Oliva reticularis, Netted olive
[[Page 197]]
Family Ovulidae
Cyphoma gibbosum, Flamingo tongue
Family Ranellidae
Charonia tritonis, Atlantic triton trumpet
Family Strombidae, Winged conchs
Strombus spp. (except Queen conch, S. gigas)
B. Bivalves--Class Bivalvia
Family Limidae
Lima spp., Fileclams
L. scabra, Rough fileclam
Family Spondylidae
Spondylus americanus, Atlantic thorny oyster
C. Cephalopods--Class Cephalopoda
1. Octopuses--Order Octopoda
Family Octopodidae
Octopus spp. (except the Common octopus, O. vulgaris)
V. Arthropods--Phylum Arthropoda
A. Crustaceans--Subphylum Crustacea
1. Decapods--Order Decapoda
Family Alpheidae
Alpheaus armatus, Snapping shrimp
Family Diogenidae
Paguristes spp., Hermit crabs
P. cadenati, Red reef hermit
Family Grapsidae
Percnon gibbesi, Nimble spray crab
Family Hippolytidae
Lysmata spp., Peppermint shrimp
Thor amboinensis, Anemone shrimp
Family Majidae, Coral crabs
Mithrax spp., Clinging crabs
M. cinctimanus, Banded clinging
M. sculptus, Green clinging
Stenorhynchus seticornis, Yellowline arrow
Family Palaemonida
Periclimenes spp., Cleaner shrimp
Family Squillidae, Mantis crabs
Gonodactylus spp.
Lysiosquilla spp.
Family Stenopodidae, Coral shrimp
Stenopus hispidus, Banded shrimp
S. scutellatus, Golden shrimp
VI. Bryozoans--Phylum Bryozoa
VII. Echinoderms--Phylum Echinodermata
A. Feather stars--Class Crinoidea
Analcidometra armata, Swimming crinoid
Davidaster spp., Crinoids
Nemaster spp., Crinoids
B. Sea stars--Class Asteroidea
Astropecten spp., Sand stars
Linckia guildingii, Common comet star
Ophidiaster guildingii, Comet star
Oreaster reticulatus, Cushion sea star
C. Brittle and basket stars--Class Ophiuroidea
Astrophyton muricatum, Giant basket star
Ophiocoma spp., Brittlestars
Ophioderma spp., Brittlestars
O. rubicundum, Ruby brittlestar
D. Sea Urchins--Class Echinoidea
Diadema antillarum, Long-spined urchin
Echinometra spp., Purple urchin
Eucidaris tribuloides, Pencil urchin
Lytechinus spp., Pin cushion urchin
Tripneustes ventricosus, Sea egg
E. Sea Cucumbers--Class Holothuroidea
Holothuria spp., Sea cucumbers
VIII. Chordates--Phylum Chordata
A. Tunicates--Subphylum Urochordata
IX. Green Algae--Phylum Chlorophyta
Caulerpa spp., Green grape algae
Halimeda spp., Watercress algae
Penicillus spp., Neptune's brush
Udotea spp., Mermaid's fan
Ventricaria ventricosa, Sea pearls
X. Red Algae--Phylum Rhodophyta
XI. Sea grasses--Phylum Angiospermae
Halodule wrightii, Shoal grass
Halophila spp., Sea vines
Ruppia maritima, Widgeon grass
Syringodium filiforme, Manatee grass
Thalassia testudium, Turtle grass
Table 2 of Appendix A to Part 622-- Caribbean Reef Fish
Acanthuridae--Surgeonfishes
Ocean surgeonfish, Acanthurus bahianus
Doctorfish, Acanthurus chirurgus
Blue tang, Acanthurus coeruleus
Antennariidae--Frogfishes
Frogfish, Antennarius spp.
Apogonidae--Cardinalfishes
Flamefish, Apogon maculatus
Conchfish, Astrapogen stellatus
Aulostomidae--Trumpetfishes
Trumpetfish, Aulostomus maculatus
Balistidae--Leatherjackets
Scrawled filefish, Aluterus scriptus
Queen triggerfish, Balistes vetula
Whitespotted filefish, Cantherhines macrocerus
Ocean triggerfish, Canthidermis sufflamen
Black durgon, Melichthys niger
Sargassum triggerfish, Xanthichthys rigens
Blenniidae--Combtooth blennies
Redlip blenny, Ophioblennius atlanticus
Bothidae--Lefteye flounders
Peacock flounder, Bothus lunatus
Carangidae--Jacks
Yellow jack, Caranx bartholomaei
Blue runner, Caranx crysos
Horse-eye jack, Caranx latus
Black jack, Caranx lugubris
Bar jack, Caranx ruber
Greater amberjack, Seriola dumerili
Almaco jack, Seriola rivoliana
Chaetodontidae--Butterflyfishes
Longsnout butterflyfish, Chaetodon aculeatus
Foureye butterflyfish, Chaetodon capistratus
Spotfin butterflyfish, Chaetodon ocellatus
Banded butterflyfish, Chaetodon striatus
Cirrhitidae--Hawkfishes
Redspotted hawkfish, Amblycirrhitus pinos
Dactylopteridae--Flying gurnards
Flying gurnard, Dactylopterus volitans
Ephippidae--Spadefishes
Atlantic spadefish, Chaetodipterus faber
Gobiidae--Gobies
Neon goby, Gobiosoma oceanops
Rusty goby, Priolepis hipoliti
[[Page 198]]
Grammatidae--Basslets
Royal gramma, Gramma loreto
Haemulidae--Grunts
Porkfish, Anisotremus virginicus
Margate, Haemulon album
Tomtate, Haemulon aurolineatum
French grunt, Haemulon flavolineatum
White grunt, Haemulon plumieri
Bluestriped grunt, Haemulon sciurus
Holocentridae--Squirrelfishes
Squirrelfish, Holocentrus adscensionis
Longspine squirrelfish, Holocentrus rufus
Blackbar soldierfish, Myripristis jacobus
Cardinal soldierfish, Plectrypops retrospinis
Labridae--Wrasses
Spanish hogfish, Bodianus rufus
Creole wrasse, Clepticus parrae
Yellowcheek wrasse, Halichoeres cyanocephalus
Yellowhead wrasse, Halichoeres garnoti
Clown wrasse, Halichoeres maculipinna
Puddingwife, Halichoeres radiatus
Pearly razorfish, Hemipteronotus novacula
Green razorfish, Hemipteronotus splendens
Hogfish, Lachnolaimus maximus
Bluehead wrasse, Thalassoma bifasciatum
Lutjanidae--Snappers
Black snapper, Apsilus dentatus
Queen snapper, Etelis oculatus
Mutton snapper, Lutjanus analis
Schoolmaster, Lutjanus apodus
Blackfin snapper, Lutjanus buccanella
Gray snapper, Lutjanus griseus
Dog snapper, Lutjanus jocu
Mahogany snapper, Lutjanus mahogani
Lane snapper, Lutjanus synagris
Silk snapper, Lutjanus vivanus
Yellowtail snapper, Ocyurus chrysurus
Wenchman, Pristipomoides aquilonaris
Vermilion snapper, Rhomboplites aurorubens
Malacanthidae--Tilefishes
Blackline tilefish, Caulolatilus cyanops
Sand tilefish, Malacanthus plumieri
Mullidae--Goatfishes
Yellow goatfish, Mulloidichthys martinicus
Spotted goatfish, Pseudupeneus maculatus
Muraenidae--Morays
Chain moray, Echidna catenata
Green moray, Gymnothorax funebris
Goldentail moray, Gymnothorax miliaris
Ogcocephalidae--Batfishes
Batfish, Ogcocepahalus spp.
Ophichthidae--Snake eels
Goldspotted eel, Myrichthys ocellatus
Opistognathidae--Jawfishes
Yellowhead jawfish, Opistognathus aurifrons
Dusky jawfish, Opistognathus whitehursti
Ostraciidae--Boxfishes
Spotted trunkfish, Lactophrys bicaudalis
Honeycomb cowfish, Lactophrys polygonia
Scrawled cowfish, Lactophrys quadricornis
Trunkfish, Lactophrys trigonus
Smooth trunkfish, Lactophrys triqueter
Pomacanthidae--Angelfishes
Cherubfish, Centropyge argi
Queen angelfish, Holacanthus ciliaris
Rock beauty, Holacanthus tricolor
Gray angelfish, Pomacanthus arcuatus
French angelfish, Pomacanthus paru
Pomacentridae--Damselfishes
Sergeant major, Abudefduf saxatilis
Blue chromis, Chromis cyanea
Sunshinefish, Chromis insolata
Yellowtail damselfish, Microspathodon chrysurus
Dusky damselfish, Pomacentrus fuscus
Beaugregory, Pomacentrus leucostictus
Bicolor damselfish, Pomacentrus partitus
Threespot damselfish, Pomacentrus planifrons
Priacanthidae--Bigeyes
Bigeye, Priacanthus arenatus
Glasseye snapper, Priacanthus cruentatus
Scaridae--Parrotfishes
Midnight parrotfish, Scarus coelestinus
Blue parrotfish, Scarus coeruleus
Striped parrotfish, Scarus croicensis
Rainbow parrotfish, Scarus guacamaia
Princess parrotfish, Scarus taeniopterus
Queen parrotfish, Scarus vetula
Redband parrotfish, Sparisoma aurofrenatum
Redtail parrotfish, Sparisoma chrysopterum
Redfin parrotfish, Sparisoma rubripinne
Stoplight parrotfish, Sparisoma viride
Sciaenidae--Drums
High-hat, Equetus acuminatus
Jackknife-fish, Equetus lanceolatus
Spotted drum, Equetus punctatus
Scorpaenidae--Scorpionfishes
Serranidae--Sea basses
Rock hind, Epinephelus adscensionis
Graysby, Epinephelus cruentatus
Yellowedge grouper, Epinephelus flavolimbatus
Coney, Epinephelus fulvus
Red hind, Epinephelus guttatus
Jewfish, Epinephelus itajara
Red grouper, Epinephelus morio
Misty grouper, Epinephelus mystacinus
Nassau Grouper, Epinephelus striatus
Butter hamlet, Hypoplectrus unicolor
Swissguard basslet, Liopropoma rubre
Yellowfin grouper, Mycteroperca venenosa
Tiger grouper, Mycteroperca tigris
Creole-fish, Paranthias furcifer
Greater soapfish, Rypticus saponaceus
Orangeback bass, Serranus annularis
Lantern bass, Serranus baldwini
Tobaccofish, Serranus tabacarius
Harlequin bass, Serranus tigrinus
Chalk bass, Serranus tortugarum
Soleidae--Soles
Caribbean tonguefish, Symphurus arawak
Sparidae--Porgies
Sea bream, Archosargus rhomboidalis
Jolthead porgy, Calamus bajonado
Sheepshead porgy, Calamus penna
Pluma, Calamus pennatula
Syngnathidae--Pipefishes
Seahorses, Hippocampus spp.
Pipefishes, Syngnathus spp.
Synodontidae--Lizardfishes
[[Page 199]]
Sand diver, Synodus intermedius
Tetraodontidae--Puffers
Sharpnose puffer, Canthigaster rostrata
Porcupinefish, Diodon hystrix
Table 3 of Appendix A to Part 622--Gulf Reef Fish
Balistidae--Triggerfishes
Gray triggerfish, Balistes capriscus
Carangidae--Jacks
Greater amberjack, Seriola dumerili
Lesser amberjack, Seriola fasciata
Almaco jack, Seriola rivoliana
Banded rudderfish, Seriola zonata
Labridae--Wrasses
Hogfish, Lachnolaimus maximus
Lutjanidae--Snappers
Queen snapper, Etelis oculatus
Mutton snapper, Lutjanus analis
Schoolmaster, Lutjanus apodus
Blackfin snapper, Lutjanus buccanella
Red snapper, Lutjanus campechanus
Cubera snapper, Lutjanus cyanopterus
Gray (mangrove) snapper, Lutjanus griseus
Dog snapper, Lutjanus jocu
Mahogany snapper, Lutjanus mahogoni
Lane snapper, Lutjanus synagris
Silk snapper, Lutjanus vivanus
Yellowtail snapper, Ocyurus chrysurus
Wenchman, Pristipomoides aquilonaris
Vermilion snapper, Rhomboplites aurorubens
Malacanthidae--Tilefishes
Goldface tilefish, Caulolatilus chrysops
Blackline tilefish, Caulolatilus cyanops
Anchor tilefish, Caulolatilus intermedius
Blueline tilefish, Caulolatilus microps
Tilefish, Lopholatilus chamaeleonticeps
Serranidae--Groupers
Dwarf sand perch, Diplectrum bivittatum
Sand perch, Diplectrum formosum
Rock hind, Epinephelus adscensionis
Speckled hind, Epinephelus drummondhayi
Yellowedge grouper, Epinephelus flavolimbatus
Red hind, Epinephelus guttatus
Jewfish, Epinephelus itajara
Red grouper, Epinephelus morio
Misty grouper, Epinephelus mystacinus
Warsaw grouper, Epinephelus nigritus
Snowy grouper, Epinephelus niveatus
Nassau grouper, Epinephelus striatus
Black grouper, Mycteroperca bonaci
Yellowmouth grouper, Mycteroperca interstitialis
Gag, Mycteroperca microlepis
Scamp, Mycteroperca phenax
Yellowfin grouper, Mycteroperca venenosa
Table 4 of Appendix A to Part 622--South Atlantic Snapper-Grouper
Balistidae--Triggerfishes
Gray triggerfish, Balistes capriscus
Queen triggerfish, Balistes vetula
Ocean triggerfish, Canthidermis sufflamen
Carangidae--Jacks
Yellow jack, Caranx bartholomaei
Blue runner, Caranx crysos
Crevalle jack, Caranx hippos
Bar jack, Caranx ruber
Greater amberjack, Seriola dumerili
Lesser amberjack, Seriola fasciata
Almaco jack, Seriola rivoliana
Banded rudderfish, Seriola zonata
Ephippidae--Spadefishes
Spadefish, Chaetodipterus faber
Haemulidae--Grunts
Black margate, Anisotremus surinamensis
Porkfish, Anisotremus virginicus
Margate, Haemulon album
Tomtate, Haemulon aurolineatum
Smallmouth grunt, Haemulon chrysargyreum
French grunt, Haemulon flavolineatum
Spanish grunt, Haemulon macrostomum
Cottonwick, Haemulon melanurum
Sailors choice, Haemulon parrai
White grunt, Haemulon plumieri
Blue stripe grunt, Haemulon sciurus
Labridae--Wrasses
Hogfish, Lachnolaimus maximus
Puddingwife, Halichoeres radiatus
Lutjanidae--Snappers
Black snapper, Apsilus dentatus
Queen snapper, Etelis oculatus
Mutton snapper, Lutjanus analis
Schoolmaster, Lutjanus apodus
Blackfin snapper, Lutjanus buccanella
Red snapper, Lutjanus campechanus
Cubera snapper, Lutjanus cyanopterus
Gray snapper, Lutjanus griseus
Mahogany snapper, Lutjanus mahogoni
Dog snapper, Lutjanus jocu
Lane snapper, Lutjanus synagris
Silk snapper, Lutjanus vivanus
Yellowtail snapper, Ocyurus chrysurus
Vermilion snapper, Rhomboplites aurorubens
Malacanthidae--Tilefishes
Blueline tilefish, Caulolatilus microps
Golden tilefish, Lopholatilus chamaeleonticeps
Sand tilefish, Malacanthus plumieri
Percichthyidae--Temperate basses
Wreckfish, Polyprion americanus
Serranidae--Sea Basses and Groupers
Bank sea bass, Centropristis ocyurus
Rock sea bass, Centropristis philadelphica
Black sea bass, Centropristis striata
Rock hind, Epinephelus adscensionis
Graysby, Epinephelus cruentatus
Speckled hind, Epinephelus drummondhayi
Yellowedge grouper, Epinephelus flavolimbatus
Coney, Epinephelus fulvus
Red hind, Epinephelus guttatus
Jewfish, Epinephelus itajara
Red grouper, Epinephelus morio
Misty grouper, Epinephelus mystacinus
Warsaw grouper, Epinephelus nigritus
Snowy grouper, Epinephelus niveatus
Nassau grouper, Epinephelus striatus
Black grouper, Mycteroperca bonaci
Yellowmouth grouper, Mycteroperca interstitialis
[[Page 200]]
Gag, Mycteroperca microlepis
Scamp, Mycteroperca phenax
Tiger grouper, Mycteroperca tigris
Yellowfin grouper, Mycteroperca venenosa
Sparidae--Porgies
Sheepshead, Archosargus probatocephalus
Grass porgy, Calamus arctifrons
Jolthead porgy, Calamus bajonado
Saucereye porgy, Calamus calamus
Whitebone porgy, Calamus leucosteus
Knobbed porgy, Calamus nodosus
Red porgy, Pagrus pagrus
Longspine porgy, Stenotomus caprinus
Scup, Stenotomus chrysops
[61 FR 34934, July 3, 1996, as amended at 62 FR 13988, Mar. 25, 1997; 62
FR 67723, Dec. 30, 1997; 64 FR 57404, Oct. 25, 1999]
Appendix B to Part 622--Gulf Areas
Table 1 of Appendix B to Part 622.--Seaward Coordinates of the Longline
and Buoy Gear Restricted Area
------------------------------------------------------------------------
Point No. and reference location
\1\ North lat. West long.
------------------------------------------------------------------------
1 Seaward limit of Florida's 24 deg.48.0' 82 deg.48.0'
waters north of Dry Tortugas.....
2 North of Rebecca Shoal........ 25 deg.07.5' 82 deg.34.0'
3 Off Sanibel Island--Offshore.. 26 deg.26.0' 82 deg.59.0'
4 West of Egmont Key............ 27 deg.30.0' 83 deg.21.5'
5 Off Anclote Keys--Offshore.... 28 deg.10.0' 83 deg.45.0'
6 Southeast corner of Florida 28 deg.11.0' 84 deg.00.0'
Middle Ground....................
7 Southwest corner of Florida 28 deg.11.0' 84 deg.07.0'
Middle Ground....................
8 West corner of Florida Middle 28 deg.26.6' 84 deg.24.8'
Ground...........................
9 Northwest corner of Florida 28 deg.42.5' 84 deg.24.8'
Middle Ground....................
10 South of Carrabelle........... 29 deg.05.0' 84 deg.47.0'
11 South of Cape St. George...... 29 deg.02.5' 85 deg.09.0'
12 South of Cape San Blas lighted 29 deg.21.0' 85 deg.30.0'
bell buoy--20 fathoms............
13 South of Cape San Blas lighted 28 deg.58.7' 85 deg.30.0'
bell buoy--50 fathoms............
14 De Soto Canyon................ 30 deg.06.0' 86 deg.55.0'
15 South of Pensacola............ 29 deg.46.0' 87 deg.19.0'
16 South of Perdido Bay.......... 29 deg.29.0' 87 deg.27.5'
17 East of North Pass of the 29 deg.14.5' 88 deg.28.0'
Mississippi River................
18 South of Southwest Pass of the 28 deg.46.5' 89 deg.26.0'
Mississippi River................
19 Northwest tip of Mississippi 28 deg.38.5' 90 deg.08.5'
Canyon...........................
20 West side of Mississippi 28 deg.34.5' 89 deg.59.5'
Canyon...........................
21 South of Timbalier Bay........ 28 deg.22.5' 90 deg.02.5'
22 South of Terrebonne Bay....... 28 deg.10.5' 90 deg.31.5'
23 South of Freeport............. 27 deg.58.0' 95 deg.00.0'
24 Off Matagorda Island.......... 27 deg.43.0' 96 deg.02.0'
25 Off Aransas Pass.............. 27 deg.30.0' 96 deg.23.5'
26 Northeast of Port Mansfield... 27 deg.00.0' 96 deg.39.0'
27 East of Port Mansfield........ 26 deg.44.0' 96 deg.37.5'
28 Northeast of Port Isabel...... 26 deg.22.0' 96 deg.21.0'
29 U.S./Mexico EEZ boundary...... 26 deg.00.5' 96 deg.24.5'
Thence westerly along U.S./Mexico EEZ boundary to the seaward limit of
Texas' waters.
------------------------------------------------------------------------
\1\ Nearest identifiable landfall, boundary, navigational aid, or
submarine area.
Table 2 of Appendix B to Part 622.--Seaward Coordinates of the Stressed
Area
------------------------------------------------------------------------
Point No. and reference location
\1\ North lat. West long.
------------------------------------------------------------------------
1 Seaward limit of Florida's 24 deg.45.5' 82 deg.41.5'
waters northeast of Dry Tortugas.
2 North of Marquesas Keys........ 24 deg.48.0' 82 deg.06.5'
3 Off Cape Sable................. 25 deg.15.0' 82 deg.02.0'
4 Off Sanibel Island--Inshore.... 26 deg.26.0' 82 deg.29.0'
5 Off Sanibel Island--Offshore... 26 deg.26.0' 82 deg.59.0'
6 West of Egmont Key............. 27 deg.30.0' 83 deg.21.5'
7 Off Anclote Keys--Offshore..... 28 deg.10.0' 83 deg.45.0'
8 Off Anclote Keys--Inshore...... 28 deg.10.0' 83 deg.14.0'
9 Off Deadman Bay................ 29 deg.38.0' 84 deg.00.0'
10 Seaward limit of Florida's 29 deg.35.5' 84 deg.38.6'
waters east of Cape St. George...
Thence westerly along the seaward
limit of Florida's waters to:
11 Seaward limit of Florida's 29 deg.32.2' 85 deg.27.1'
waters south of Cape San Blas....
12 Southwest of Cape San Blas.... 29 deg.30.5' 85 deg.52.0'
13 Off St. Andrew Bay............ 29 deg.53.0' 86 deg.10.0'
14 De Soto Canyon................ 30 deg.06.0' 86 deg.55.0'
15 South of Florida/Alabama 29 deg.34.5' 87 deg.38.0'
border...........................
16 Off Mobile Bay................ 29 deg.41.0' 88 deg.00.0'
17 South of Alabama/Mississippi 30 deg.01.5' 88 deg.23.7'
border...........................
18 Horn/Chandeleur Islands....... 30 deg.01.5' 88 deg.40.5'
19 Chandeleur Islands............ 29 deg.35.5' 88 deg.37.0'
20 Seaward limit of Louisiana's 29 deg.16.3' 89 deg.00.0'
waters off North Pass of the
Mississippi River................
Thence southerly and westerly
along the seaward limit of
Louisiana's waters to:
[[Page 201]]
21 Seaward limit of Louisiana's 28 deg.57.3' 89 deg.28.2'
waters off Southwest Pass of the
Mississippi River................
22 Southeast of Grand Isle....... 29 deg.09.0' 89 deg.47.0'
23 Quick flashing horn buoy south 28 deg.32.5' 90 deg.42.0'
of Isles Dernieres...............
24 Southeast of Calcasieu Pass... 29 deg.10.0' 92 deg.37.0'
25 South of Sabine Pass--10 29 deg.09.0' 93 deg.41.0'
fathoms..........................
26 South of Sabine Pass--30 28 deg.21.5' 93 deg.28.0'
fathoms..........................
27 East of Aransas Pass.......... 27 deg.49.0' 96 deg.19.5'
28 East of Baffin Bay............ 27 deg.12.0' 96 deg.51.0'
29 Northeast of Port Mansfield... 26 deg.46.5' 96 deg.52.0'
30 Northeast of Port Isabel...... 26 deg.21.5' 96 deg.35.0'
31 U.S./Mexico EEZ boundary...... 26 deg.00.5' 96 deg.36.0'
Thence westerly along U.S./Mexico
EEZ boundary to the seaward limit
of Texas' waters ................
------------------------------------------------------------------------
\1\ Nearest identifiable landfall, boundary, navigational aid, or
submarine area.
[[Page 202]]
Appendix C to Part 622--Fish Length Measurements
[GRAPHIC] [TIFF OMITTED] TR03JY96.000
Figure 1 of Appendix C to Part 622--Carapace Length
[[Page 203]]
Figure 2 to Appendix C to Part 622--Illustration of Length
Measurements
[GRAPHIC] [TIFF OMITTED] TR25JA99.001
[61 FR 34934, July 3, 1996, as amended at 64 FR 3630, Jan. 25, 1999]
Appendix D to Part 622--Specifications for Certified BRDs
A. Extended Funnel.
[[Page 204]]
1. Description. The extended funnel BRD consists of an extension
with large-mesh webbing in the center (the large-mesh escape section)
and small-mesh webbing on each end held open by a semi-rigid hoop. A
funnel of small-mesh webbing is placed inside the extension to form a
passage for shrimp to the codend. It also creates an area of reduced
water flow to allow for fish escapement through the large mesh. One side
of the funnel is extended vertically to form a lead panel and area of
reduced water flow. There are two sizes of extended funnel BRDs, a
standard size and an inshore size for small trawls.
2. Minimum Construction and Installation Requirements for Standard
Size.
(a) Extension Material. The small-mesh sections used on both sides
of the large-mesh escape section are constructed of 1\5/8\ inch (4.13
cm), No. 30 stretched mesh, nylon webbing. The front section is 120
meshes around by 6\1/2\ meshes deep. The back section is 120 meshes
around by 23 meshes deep.
(b) Large-Mesh Escape Section. The large-mesh escape section is
constructed of 8 to 10 inch (20.3 to 25.4 cm), stretched mesh, webbing.
This section is cut on the bar to form a section that is 15 inches (38.1
cm) in length by 95 inches (241.3 cm) in circumference. The leading edge
is attached to the 6\1/2\-mesh extension section and the rear edge is
attached to the 23-mesh extension section.
(c) Funnel. The funnel is constructed of 1\1/2\ inch (3.81 cm),
stretched mesh, No. 30 depth-stretched and heat-set polyethylene
webbing. The circumference of the leading edge is 120 meshes and the
back edge is 78 meshes. The short side of the funnel is 34 to 36 inches
(86.4 to 91.4 cm) long and the opposite side of the funnel extends an
additional 22 to 24 inches (55.9 to 61.0 cm). The circumference of the
leading edge of the funnel is attached to the forward small-mesh section
three meshes forward of the large-mesh escape section and is evenly
sewn, mesh for mesh, to the small-mesh section. The after edge of the
funnel is attached to the after small-mesh section at its top and bottom
eight meshes back from the large-mesh escape panel. Seven meshes of the
top and seven meshes of the bottom of the funnel are attached to eight
meshes at the top and bottom of the small-mesh section, such eight
meshes being located immediately adjacent to the top and bottom centers
of the small-mesh section on the side of the funnel's extended side. The
extended side of the funnel is sewn at its top and bottom to the top and
bottom of the small-mesh section, extending at an angle toward the top
and bottom centers of the small-mesh section.
(d) Semi-Rigid Hoop. A 30-inch (76.2-cm) diameter hoop constructed
of plastic-coated trawl cable, swaged together with a \3/8\-inch (9.53-
mm) micropress sleeve, is installed five meshes behind the trailing edge
of the large-mesh escape section. The extension webbing must be laced to
the ring around the entire circumference and must be equally distributed
on the hoop, that is, 30 meshes must be evenly attached to each
quadrant.
(e) Installation. The extended funnel BRD is attached 8 inches (20.3
cm) behind the posterior edge of the TED. If it is attached behind a
soft TED, a second semi-rigid hoop, as prescribed in paragraph A.2.(d),
must be installed in the front section of the BRD extension webbing at
the leading edge of the funnel. The codend of the trawl net is attached
to the trailing edge of the BRD.
3. Minimum Construction and Installation Requirements for Inshore
Size.
(a) Extension Material. The small-mesh sections used on both sides
of the large-mesh escape section are constructed of 1\3/8\ inch (3.5
cm), No. 18 stretched mesh, nylon webbing. The front section is 120
meshes around by 6\1/2\ meshes deep. The back section is 120 meshes
around by 23 meshes deep.
(b) Large-Mesh Escape Section. The large-mesh escape section is
constructed of 8 to 10 inch (20.3 to 25.4 cm), stretched mesh, webbing.
This section is cut on the bar to form a section that is 15 inches (38.1
cm) by 75 inches (190.5 cm) in circumference. The leading edge is
attached to the 6\1/2\-mesh extension section and the rear edge is
attached to the 23-mesh extension section.
(c) Funnel. The funnel is constructed of 1\3/8\ inch (3.5 cm),
stretched mesh, No. 18 depth-stretched and heat-set polyethylene
webbing. The circumference of the leading edge is 120 meshes and the
back edge is 78 meshes. The short side of the funnel is 30 to 32 inches
(76.2 to 81.3 cm) long and the opposite side of the funnel extends an
additional 20 to 22 inches (50.8 to 55.9 cm). The circumference of the
leading edge of the funnel is attached to the forward small-mesh section
three meshes forward of the large-mesh escape section and is evenly
sewn, mesh for mesh, to the small-mesh section. The after edge of the
funnel is attached to the after small-mesh section at its top and bottom
eight meshes back from the large-mesh escape panel. Seven meshes of the
top and seven meshes of the bottom of the funnel are attached to eight
meshes at the top and bottom of the small-mesh section, such eight
meshes being located immediately adjacent to the top and bottom centers
of the small-mesh section on the side of the funnel's extended side. The
extended side of the funnel is sewn at its top and bottom to the top and
bottom of the small-mesh section, extending at an angle toward the top
and bottom centers of the small-mesh section.
(d) Semi-Rigid Hoop. A 24-inch (61.0-cm) diameter hoop constructed
of plastic-coated trawl cable, swaged together with a \3/8\-inch (9.53-
mm) micropress sleeve, is installed five meshes behind the trailing edge
of the large mesh section. The extension webbing must
[[Page 205]]
be laced to the ring around the entire circumference and must be equally
distributed on the hoop, that is, 30 meshes must be evenly attached to
each quadrant.
(e) Installation. The extended funnel BRD is attached 8 inches (20.3
cm) behind the posterior edge of the TED. If it is attached behind a
soft TED, a second semi-rigid hoop, as prescribed in paragraph A.3.(d),
must be installed in the front section of the BRD extension webbing at
the leading edge of the funnel. The codend of the trawl net is attached
to the trailing edge of the BRD.
B. Expanded Mesh. The expanded mesh BRD is constructed and installed
exactly the same as the standard size extended funnel BRD, except that
one side of the funnel is not extended to form a lead panel.
C. Fisheye.
1. Description. The fisheye BRD is a cone-shaped rigid frame
constructed from aluminum or steel rod of at least \1/4\ inch diameter,
which is inserted into the codend to form an escape opening. Fisheyes of
several different shapes and sizes have been tested in different
positions in the codend.
2. Minimum Construction and Installation Requirements. The fisheye
has a minimum opening dimension of 5 inches (12.7 cm) and a minimum
total opening area of 36 square inches (91.4 square cm). The fisheye
must be installed at the top center of the codend of the trawl to create
an opening in the trawl facing in the direction of the mouth of the
trawl no further forward than 11 ft (3.4 m) from the codend drawstring
(tie-off rings) or 70 percent of the distance between the codend
drawstring and the forward edge of the codend, excluding any extension,
whichever is the shorter distance. In the Gulf EEZ only, when the
fisheye BRD is installed in this position, no part of the lazy line
attachment system (i.e., any mechanism, such as elephant ears or choker
straps, used to attach the lazy line to the codend) may overlap the
fisheye escape opening when the fisheye is installed aft of the
attachment point of the codend retrieval system.
D. Gulf fisheye.
1. Description. The Gulf fisheye BRD is a cone-shaped rigid frame
constructed from aluminum or steel that is inserted into the top center
of the codend, or is offset not more than 15 meshes perpendicular to the
top center of the codend, to form an escape opening.
2. Minimum Construction and Installation Requirements. The Gulf
fisheye is a cone-shaped rigid frame constructed of aluminum or steel
rods. The rods must be at least \1/4\-inch (6.35-mm) diameter. Any
dimension of the escape opening must be at least 5.0 inches (12.7 cm),
and the total escape opening area must be at least 36.0 in2
(232.3 cm2). The Gulf fisheye must be installed in the codend
of the trawl to create an escape opening in the trawl, facing in the
direction of the mouth of the trawl, no further forward than 12.5 ft
(3.81 m) and no less than 8.5 ft (2.59 m) from the codend tie-off rings.
When installed in this position, no part of the lazy line attachment
system (i.e., any mechanism, such as elephant ears or choker straps,
used to attach the lazy line to the codend) may overlap the fisheye
escape opening when the fisheye is installed aft of the attachment point
of the codend retrieval system. The Gulf fisheye may not be offset more
than 15 meshes perpendicular to the top center of the codend.
E. Jones-Davis.
1. Description. The Jones-Davis BRD is similar to the expanded mesh
and the extended funnel BRDs except that the fish escape openings are
windows cut around the funnel rather than large-mesh sections. In
addition, a webbing cone fish deflector is installed behind the funnel.
2. Minimum Construction and Installation Requirements. The Jones-
Davis BRD must contain all of the following.
(a) Webbing extension. The webbing extension must be constructed
from a single piece of 1\5/8\-inch (3.5-cm) stretch mesh number 30 nylon
42 meshes by 120 meshes. A tube is formed from the extension webbing by
sewing the 42-mesh side together.
(b) 28-inch (71.1-cm) cable hoop. A single hoop must be constructed
of \1/2\-inch (1.3-cm) steel cable 88 inches (223.5 cm) in length. The
cable must be joined at its ends by a 3-inch (7.6-cm) piece of \1/2\-
inch (1.3-cm) aluminum pipe and pressed with a \3/8\-inch (0.95-cm) die
to form a hoop. The inside diameter of this hoop must be between 27 and
29 inches (68.6 and 73.7 cm). The hoop must be attached to the extension
webbing 17\1/2\ meshes behind the leading edge. The extension webbing
must be quartered and attached in four places around the hoop, and every
other mesh must be attached all the way around the hoop using number 24
twine or larger. The hoop must be laced with \3/8\-inch (0.95-cm)
polypropylene or polyethylene rope for chaffing.
(c) 24-inch (61.0-cm) hoop. A single hoop must be constructed of
either number 60 twine 80 inches (203.2 cm) in length or \3/8\-inch
(0.95-cm) steel cable 75\1/2\ inches (191.8 cm) in length. If twine is
used, the twine must be laced in and out of the extension webbing 39
meshes behind the leading edge, and the ends must be tied together. If
cable is used, the cable must be joined at its ends by a 3-inch (7.6-cm)
piece of \3/8\-inch (0.95-cm) aluminum pipe and pressed together with a
\1/4\-inch (0.64-cm) die to form a hoop. The inside diameter of this
hoop must be between 23 and 25 inches (58.4 and 63.4 cm). The hoop must
be attached to the extension webbing 39 meshes behind the leading edge.
The extension webbing must be quartered and attached in four places
around the hoop, and every other mesh must be attached all the way
around the hoop using number 24 twine or larger.
[[Page 206]]
The hoop must be laced with \3/8\-inch (0.95-cm) polypropylene or
polyethylene rope for chaffing.
(d) Funnel. The funnel must be constructed from four sections of
1\1/2\-inch (3.8-cm) heat-set and depth-stretched polypropylene or
polyethylene webbing. The two side sections must be rectangular in
shape, 29\1/2\ meshes on the leading edge by 23 meshes deep. The top and
bottom sections are 29\1/2\ meshes on the leading edge by 23 meshes deep
and tapered 1 point 2 bars on both sides down to 8 meshes across the
back. The four sections must be sewn together down the 23-mesh edge to
form the funnel.
(e) Attachment of the funnel in the webbing extension. The funnel
must be installed two meshes behind the leading edge of the extension
starting at the center seam of the extension and the center mesh of the
funnel's top section leading edge. On the same row of meshes, the funnel
must be sewn evenly all the way around the inside of the extension. The
funnel's top and bottom back edges must be attached one mesh behind the
28-inch (71.1-cm) cable hoop (front hoop). Starting at the top center
seam, the back edge of the top funnel section must be attached four
meshes each side of the center. Counting around 60 meshes from the top
center, the back edge of the bottom section must be attached 4 meshes on
each side of the bottom center. Clearance between the side of the funnel
and the 28-inch (71.1-cm) cable hoop (front hoop) must be at least 6
inches (15.2 cm) when measured in the hanging position.
(f) Cutting the escape openings. The leading edge of the escape
opening must be located within 18 inches (45.7 cm) of the posterior edge
of the turtle excluder device (TED) grid. The area of the escape opening
must total at least 864 in2 (5,574.2 cm2). Two
escape openings 10 meshes wide by 13 meshes deep must be cut 6 meshes
apart in the extension webbing, starting at the top center extension
seam, 3 meshes back from the leading edge and 16 meshes to the left and
to the right (total of four openings). The four escape openings must be
double selvaged for strength.
(g) Alternative Method for Constructing the Funnel and Escape
Openings. The following method for constructing the funnel and escape
openings may be used instead of the method described in paragraphs
F.2.d., F.2.e., and F.2.f. of this section. With this alternative
method, the funnel and escape openings are formed by cutting a flap in
each side of the extension webbing; pushing the flaps inward; and
attaching the top and bottom edges along the bars of the extension
webbing to form the v-shape of the funnel. Minimum requirements
applicable to this method include: (1) The funnel's top and bottom back
edges must be attached one mesh behind the 28-inch (71.1-cm) cable hoop
(front hoop); (2) clearance between the side of the funnel and the 28-
inch (71.1-cm) cable hoop (front hoop) must be at least 6 inches (15.2
cm) when measured in the hanging position; (3) the leading edge of the
escape opening must be located within 18 inches (45.7 cm) of the
posterior edge of the turtle excluder device (TED) grid; and, (4) the
area of the escape opening must total at least 864 in2
(5,574.2 cm2). To construct the funnel and escape openings
using this method, begin 3\1/2\ meshes from the leading edge of the
extension, at the top center seam, count over 18 meshes on each side,
and cut 13 meshes toward the back of the extension. Turn parallel to the
leading edge, and cut 26 meshes toward the bottom center of the
extension. Next, turn parallel to the top center seam, and cut 13 meshes
forward toward the leading edge, creating a flap of webbing 13 meshes by
26 meshes by 13 meshes. Lengthen the flap to 18 meshes by adding a 4\1/
2\-mesh by 26-mesh rectangular section of webbing to the 26-mesh edge.
Attach the 18-mesh edges to the top and bottom of the extension by
sewing 2 bars of the extension to 1 mesh on the flap in toward the top
center and bottom center of the extension, forming the exit opening and
the funnel. Connect the two flaps together in the center with a 7-inch
piece of number 42 twine to allow adequate clearance for fish escapement
between the flaps and the side openings. On each side, sew a 6-mesh by
10\1/2\-mesh section of webbing to 6 meshes of the center of the 26-mesh
cut on the extension and 6 meshes centered between the 13-mesh cuts 3\1/
2\ meshes from the leading edge. This forms two 10-mesh by 13-mesh
openings on each side.
(h) Cone fish deflector. The cone fish deflector is constructed of 2
pieces of 1\5/8\-inch (4.13-cm) polypropylene or polyethylene webbing,
40 meshes wide by 20 meshes in length and cut on the bar on each side
forming a triangle. Starting at the apex of the two triangles, the two
pieces must be sewn together to form a cone of webbing. The apex of the
cone fish deflector must be positioned within 10-14 inches (25.4-35.6
cm) of the posterior edge of the funnel.
(i) 11-inch (27.9-cm) cable hoop for cone deflector. A single hoop
must be constructed of \5/16\-inch (0.79-cm) or \3/8\-inch (0.95-cm)
cable 34\1/2\ inches (87.6 cm) in length. The ends must be joined by a
3-inch (7.6-cm) piece of \3/8\-inch (0.95-cm) aluminum pipe pressed
together with a \1/4\-inch (0.64-cm) die. The hoop must be inserted in
the webbing cone, attached 10 meshes from the apex and laced all the way
around with heavy twine.
(j) Installation of the cone in the extension. The cone must be
installed in the extension 12 inches (30.5 cm) behind the back edge of
the funnel and attached in four places. The midpoint of a piece of
number 60 twine 4 ft (1.22 m) in length must be attached to the apex of
the cone. This piece of twine must be attached to the 28-inch (71.1-cm)
cable hoop
[[Page 207]]
at the center of each of its sides; the points of attachment for the two
pieces of twine must be measured 20 inches (50.8 cm) from the midpoint
attachment. Two 8-inch (20.3-cm) pieces of number 60 twine must be
attached to the top and bottom of the 11-inch (27.9-cm) cone hoop. The
opposite ends of these two pieces of twine must be attached to the top
and bottom center of the 24-inch (61-cm) cable hoop; the points of
attachment for the two pieces of twine must be measured 4 inches (10.2
cm) from the points where they are tied to the 11-inch (27.9-cm) cone
hoop.
[62 FR 18539, Apr. 16, 1997, as amended at 64 FR 37694, July 13, 1999]
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES--Table of Contents
Subpart A--General
Sec.
635.1 Purpose and scope.
635.2 Definitions.
635.3 Relation to other laws.
635.4 Permits and fees.
635.5 Recordkeeping and reporting.
635.6 Vessel and gear identification.
635.7 At-sea observer coverage.
Subpart B--Limited Access
635.16 Limited access permits.
Subpart C--Management Measures
635.20 Size limits.
635.21 Gear operation and deployment restrictions.
635.22 Recreational retention limits.
635.23 Retention limits for BFT.
635.24 Commercial retention limits for sharks and swordfish.
635.25 [Reserved]
635.26 Catch and release.
635.27 Quotas.
635.28 Closures.
635.29 Transfer at sea.
635.30 Possession at sea and landing.
635.31 Restrictions on sale and purchase.
635.32 Specifically authorized activities.
635.33 Archival tags.
635.34 Adjustment of management measures.
Subpart D--Restrictions on Imports
635.40 Restrictions to enhance conservation.
635.41 Species subject to documentation requirements.
635.42 Documentation requirements.
635.43 Contents of documentation.
635.44 Validation requirements.
635.45 Import restrictions for Belize, Honduras, and Panama.
635.46 Import restrictions on swordfish.
635.47 Ports of entry.
Subpart E--International Port Inspection
635.50 Basis and purpose.
635.51 Authorized officer.
635.52 Vessels subject to inspection.
635.53 Reports.
Subpart F--Enforcement
635.69 Vessel monitoring systems.
635.70 Penalties.
635.71 Prohibitions.
Appendix A to Part 635--Species Tables
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
Source: 64 FR 29135, May 28, 1999, unless otherwise noted.
Subpart A--General
Sec. 635.1 Purpose and scope.
(a) The regulations in this part govern the conservation and
management of Atlantic tunas, Atlantic billfish, Atlantic sharks, and
Atlantic swordfish under the authority of the Magnuson-Stevens Act and
ATCA. They implement the Fishery Management Plan for Atlantic Tunas,
Swordfish, and Sharks, and the Fishery Management Plan for Atlantic
Billfishes. The Atlantic tunas regulations govern conservation and
management of Atlantic tunas in the management unit. The Atlantic
billfish regulations govern conservation and management of Atlantic
billfish in the management unit. The Atlantic swordfish regulations
govern conservation and management of North and South Atlantic swordfish
in the management unit. North Atlantic swordfish are managed under the
authority of both ATCA and the Magnuson-Stevens Act. South Atlantic
swordfish are managed under the sole authority of ATCA. The shark
regulations govern conservation and management of sharks in the
management unit, solely under the authority of the Magnuson-Stevens Act.
Sharks are managed under the authority of the Magnuson-Stevens Act.
(b) Under section 9(d) of ATCA, NMFS has determined that the
regulations contained in this part with respect to Atlantic tunas are
applicable within the territorial sea of the United States adjacent to,
and within the
[[Page 208]]
boundaries of, the States of New Hampshire, Massachusetts, Rhode Island,
New York, New Jersey, Delaware, Maryland, Virginia, North Carolina,
South Carolina, Georgia, Florida, Alabama, Louisiana and Texas, and the
Commonwealths of Puerto Rico and the Virgin Islands. NMFS will undertake
a continuing review of State regulations to determine if regulations
applicable to Atlantic tunas, swordfish or billfish are at least as
restrictive as regulations contained in this part and if such
regulations are effectively enforced. In such case, NMFS will file with
the Office of the Federal Register for publication notification of the
basis for the determination and of the specific regulations that shall
or shall not apply in the territorial sea of the identified State.
Sec. 635.2 Definitions.
In addition to the definitions in the Magnuson-Stevens Act, ATCA,
and Sec. 600.10 of this chapter, the terms used in this part have
following meanings. If applicable, the terms used in this part supercede
those used in Sec. 600.10:
Archival tag means a device that is implanted or affixed to a fish
to electronically record scientific information about the migratory
behavior of that fish.
ATCA Certificate of Eligibility (COE) means the certificate that
must accompany any applicable shipment of fish pursuant to a finding
under 16 U.S.C. 971d (c)(4) or (c)(5).
Atlantic HMS means Atlantic tunas, billfish, sharks, and swordfish.
Atlantic Ocean, as used in this part, includes the North and South
Atlantic Oceans, the Gulf of Mexico, and the Caribbean Sea.
BFT landings quota means the portion of the ICCAT BFT catch quota
allocated to the United States against which landings of BFT are
counted.
Billfish Certificate of Eligibility (COE) means a certificate that
accompanies a shipment of billfish indicating that the billfish or
related species, or parts thereof, are not from the respective Atlantic
Ocean management units.
BSD tag means a numbered tag affixed to a BFT issued by any country
in conjunction with a catch statistics information program and recorded
on a BSD.
Caudal keel means the horizontal ridges along each side of a fish at
the base of the tail fin.
CFL (curved fork length) means the length of a fish measured from
the tip of the upper jaw to the fork of the tail along the contour of
the body in a line that runs along the top of the pectoral fin and the
top of the caudal keel.
Charleston Bump closed area means the Atlantic Ocean area seaward of
the baseline from which the territorial sea is measured from a point
intersecting the U.S. coast at 34 deg.00' N. lat. near Wilmington Beach,
North Carolina, and proceeding due east to connect by straight lines the
following coordinates in the order stated: 34 deg.00' N. lat.,
76 deg.00' W. long.; 31 deg.00' N. lat., 76 deg.00' W. long.; then
proceeding due west to intersect the coast at 31 deg.00' N. lat. near
Jekyll Island, Georgia.
CK means the length of a fish measured along the body contour, i.e.,
a curved measurement, from the point on the cleithrum that provides the
shortest possible measurement along the body contour to the anterior
portion of the caudal keel. The cleithrum is the semicircular bony
structure at the posterior edge of the gill opening.
Convention means the International Convention for the Conservation
of Atlantic Tunas, signed at Rio de Janeiro, Brazil, on May 14, 1966, 20
U.S.T. 2887, TIAS 6767, including any amendments or protocols thereto,
which are binding upon the United States.
Conventional tag means a numbered, flexible ribbon that is implanted
or affixed to a fish that is released back into the ocean that allows
for the identification of that fish in the event it is recaptured.
Dealer tag means the numbered, flexible, self-locking ribbon issued
by NMFS for the identification of BFT sold to a permitted dealer as
required under Sec. 635.5(b)(2)(ii).
Dehooking device means a device intended to remove a hook embedded
in a fish in order to release the fish with minimum damage.
Designated by NMFS means the address or location indicated in a
letter to permit holders or in a letter accompanying reporting forms.
[[Page 209]]
DeSoto Canyon closed area means the area within the Gulf of Mexico
bounded by straight lines connecting the following coordinates in the
order stated: 30 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00' N.
lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 86 deg.00' W. long.;
28 deg.00' N. lat., 84 deg.00' W. long.; 26 deg.00' N. lat., 84 deg.00'
W. long.; 26 deg.00' N. lat., 86 deg.00' W. long.; 28 deg.00' N. lat.,
86 deg.00' W. long.; 28 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00'
N. lat., 88 deg.00' W. long.
Division Chief means the Chief, Highly Migratory Species Management
Division, NMFS (F/SF1), 1315 East-West Highway, Silver Spring, MD,
20910; (301) 713-2347.
Downrigger means a piece of equipment attached to a vessel and with
a weight on a cable that is in turn attached to hook-and-line gear to
maintain lures or bait at depth while trolling. The downrigger has a
release system to retrieve the weight by rod and reel or by manual,
electric, or hydraulic winch after a fish strike on the hook-and-line
gear.
Dress means to process a fish by removal of head, viscera, and fins,
but does not include removal of the backbone, halving, quartering, or
otherwise further reducing the carcass.
Dressed weight (dw) means the weight of a fish after it has been
dressed.
East Florida Coast closed area means the Atlantic Ocean area seaward
of the baseline from which the territorial sea is measured from a point
intersecting the U.S. coast at 31 deg.00' N. lat. near Jekyll Island,
Georgia, and proceeding due east to connect by straight lines the
following coordinates in the order stated: 31 deg.00' N. lat.,
78 deg.00' W. long.; 28 deg.17' N. lat., 79 deg.00' W. long.; then
proceeding along the boundary of the EEZ to 24 deg.00' N. lat.,
79 deg.30' W. long.; then connecting by straight lines the following
coordinates in the order stated: 24 deg.00' N. lat., 79 deg.30' W.
long.; 24 deg.00' N. lat., 81 deg.00' W. long.; 24 deg.00' N. lat.,
81 deg.47' W. long.; then proceeding due north to intersect the coast at
81 deg.47' W. long. near Key West, Florida.
EFP means an exempted fishing permit issued pursuant to Sec. 600.745
of this chapter or to Sec. 635.32.
Eviscerated means a fish that has only the alimentary organs
removed.
Export means a shipment to a destination outside the customs
territory of the United States for which a Shipper's Export Declaration
(Customs Form 7525) is required. Atlantic HMS destined from one foreign
country to another, which transits the United States and for which a
Shipper's Export Declaration is not required to be filed, is not an
export under this definition.
Exporter means the principal party responsible for effecting export
from the United States as listed on the Shipper's Export Declaration
(Customs Form 7525) or any authorized electronic medium available from
U.S. Customs.
Finlet means one of the small individual fins on a tuna located
behind the second dorsal and anal fins and forward of the tail fin.
First transaction in the United States means the time and place at
which a fish is filleted, cut into steaks, or processed in any way that
physically alters it after being landed in or imported into the United
States.
Fishing record means all records of navigation and operations of a
fishing vessel, as well as all records of catching, harvesting,
transporting, landing, purchasing, or selling a fish.
Fishing vessel means any vessel engaged in fishing, processing, or
transporting fish loaded on the high seas, or any vessel outfitted for
such activities.
Fishing year means--
(1) For Atlantic tunas, billfish, and swordfish--June 1 through May
31 of the following year; and
(2) For sharks--January 1 through December 31.
FL (fork length) means the straight-line measurement of a fish from
the tip of the snout to the fork of the tail. The measurement is not
made along the curve of the body.
Giant BFT means an Atlantic BFT measuring 81 inches (206 cm) CFL or
greater.
Handgear means handline, harpoon, rod and reel or bandit gear.
Handline means fishing gear that consists of a mainline to which no
more than two leaders (gangions) with hooks are attached, and that is
released and retrieved by hand, rather than by mechanical means.
[[Page 210]]
High-flyer means a flag, radar reflector or radio beacon
transmitter, suitable for attachment to a longline to facilitate its
location and retrieval.
Highly migratory species (HMS) means bluefin, bigeye, yellowfin,
albacore, and skipjack tunas; swordfish; sharks (listed in appendix A to
this part); white marlin; blue marlin; sailfish; and longbill spearfish.
ILAP means an initial limited access permit issued pursuant to
Sec. 635.4.
Import means the release of HMS from a nation's Customs' custody and
entry into the territory of that nation. HMS are imported into the
United States upon release from U.S. Customs' custody pursuant to filing
an entry summary document (Customs Form 7501) or filing by any
authorized electronic medium. HMS destined from one foreign country to
another, which transit the United States and for which an entry summary
is not required to be filed, are not an import under this definition.
Importer, for the purpose of HMS imported into the United States,
means the importer of record as declared on U.S. Customs Form 7501 or by
any authorized electronic medium.
Intermediate country means a country that exports to another country
HMS previously imported by that nation. Shipments of HMS through a
country on a through bill of lading or in another manner that does not
enter the shipments into that country as an importation do not make that
country an intermediate country under this definition.
LAP means a limited access permit issued pursuant to Sec. 635.4.
Large coastal shark (LCS) means one of the species, or a part
thereof, listed in paragraph (a) of table 1 in appendix A to this part.
Large medium BFT means a BFT measuring at least 73 inches (185 cm)
and less than 81 inches (206 cm) CFL.
Large school BFT means a BFT measuring at least 47 inches (119 cm)
and less than 59 inches (150 cm) CFL.
LJFL (lower jaw-fork length) means the straight-line measurement of
a fish from the tip of the lower jaw to the fork of the caudal fin. The
measurement is not made along the curve of the body.
Longline means fishing gear that is set horizontally, either
anchored, floating, or attached to a vessel, and that consists of a
mainline or groundline with three or more leaders (gangions) and hooks,
whether retrieved by hand or mechanical means.
Management unit means in this part:
(1) For Atlantic tunas, longbill spearfish, blue marlin and white
marlin, means all fish of these species in the Atlantic Ocean;
(2) For sailfish, means all fish of this species in the Atlantic
Ocean west of 30 deg. W. long.;
(3) For North Atlantic swordfish, means all fish of this species in
the Atlantic Ocean north of 5 deg. N. lat.;
(4) For South Atlantic swordfish, means all fish of this species in
the Atlantic Ocean south of 5 deg. N. lat.; and
(5) For sharks, means all fish of these species in the western north
Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea.
Mid-Atlantic Bight means the area bounded by straight lines
connecting the mid-Atlantic states' internal waters and extending to
71 deg. W. long. between 35 deg. N. lat. and 43 deg. N. lat.
Non-ridgeback large coastal shark means one of the species, or a
part thereof, listed in paragraph (a)(2) of table 1 in appendix A to
this part.
North Atlantic swordfish or North Atlantic swordfish stock means
those swordfish occurring in the Atlantic Ocean north of 5 deg. N. lat.
Northeastern United States closed area means the area bounded by
straight lines connecting the following coordinates in the order stated:
40 deg.00' N. lat., 74 deg.00' W. long.; 40 deg.00' N. lat., 68 deg.00'
W. long.; 39 deg.00' N. lat., 68 deg.00' W. long.; and 39 deg.00' N.
lat., 74 deg.00' W. long.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Pectoral fin means the fin located behind the gill cover on either
side of a fish.
Pelagic longline means a longline that is suspended by floats in the
water column and that is not fixed to or in contact with the ocean
bottom.
Pelagic shark means one of the species, or a part thereof, listed in
paragraph (c) of table 1 in appendix A to this part.
[[Page 211]]
PFCFL (pectoral fin curved fork length) means the length of a
beheaded fish from the dorsal insertion of the pectoral fin to the fork
of the tail measured along the contour of the body in a line that runs
along the top of the pectoral fin and the top of the caudal keel.
Prohibited shark means one of the species, or a part thereof, listed
in paragraph (d) of table 1 in appendix A to this part.
Restricted-fishing day (RFD) means a day, beginning at 0000 hours
and ending at 2400 hours local time, during which a person aboard a
vessel for which a General category permit for Atlantic Tunas has been
issued may not fish for, possess, or retain a BFT.
Ridgeback large coastal shark means one of the species, or a part
thereof, listed in paragraph (a)(1) of table 1 in appendix A to this
part.
School BFT means a BFT measuring at least 27 inches (69 cm) and less
than 47 inches (119 cm) CFL.
Shark means one of the oceanic species, or a part thereof, listed in
tables 1 and 2 in appendix A to this part.
Small coastal shark (SCS) means one of the species, or a part
thereof, listed in paragraph (b) of table 1 in appendix A to this part.
Small medium BFT means a BFT measuring at least 59 inches (150 cm)
and less than 73 inches (185 cm) CFL.
South Atlantic swordfish or south Atlantic swordfish stock means
those swordfish occurring in the Atlantic Ocean south of 5 deg. N. lat.
Swordfish Certificate of Eligibility (COE) means the certificate
that accompanies a shipment of imported swordfish indicating that the
swordfish or swordfish parts are not from the Atlantic Ocean or, if they
are, are derived from a swordfish weighing more than 33 lb (15 kg) dw.
Tournament means any fishing competition involving Atlantic HMS in
which participants must register or otherwise enter or in which a prize
or award is offered for catching or landing such fish.
Tournament operator means a person or entity responsible for
maintaining records of participants and results used for awarding
tournament points or prizes, regardless of whether fish are retained.
Trip limit means the total allowable take from a single trip as
defined in Sec. 600.10 of this chapter.
Weighout slip means a document provided to the owner or operator of
the vessel by a person who weighs fish or parts thereof that are landed
from a fishing vessel. A document, such as a ``tally sheet,'' ``trip
ticket,'' or ``sales receipt,'' that contains such information is
considered a weighout slip.
Young school BFT means an Atlantic BFT measuring less than 27 inches
(69 cm) CFL.
[64 FR 29135, May 28, 1999, as amended at 65 FR 47237, Aug. 1, 2000]
Sec. 635.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705 of this chapter and in paragraphs (b) and (c) of this
section.
(b) In accordance with regulations issued under the Marine Mammal
Protection Act of 1972, as amended, it is unlawful for a commercial
fishing vessel, a vessel owner, or a master or operator of a vessel to
engage in fisheries for HMS in the Atlantic Ocean, unless the vessel
owner or authorized representative has complied with specified
requirements including, but not limited to, registration, exemption
certificates, decals, and reports, as contained in part 229 of this
title.
(c) General provisions on facilitation of enforcement, penalties,
and enforcement policy applicable to all domestic fisheries are set
forth in Secs. 600.730, 600.735, and Sec. 600.740 of this chapter,
respectively.
(d) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing, or exempted educational activity, as specified in Sec. 635.32.
Sec. 635.4 Permits and fees.
Information on permits and permit requirements may be obtained from
the Division Chief or where otherwise stated in this part.
(a) General. (1) Authorized activities. Each permit issued by NMFS
authorizes certain activities, and persons may not conduct these
activities without
[[Page 212]]
the appropriate permit, unless otherwise authorized by NMFS in
accordance with this part.
(2) Vessel permit inspection. The owner or operator of a vessel of
the United States must have the appropriate valid permit on board the
vessel to fish for, take, retain, or possess Atlantic tunas, when
engaged in commercial or recreational fishing, and to fish for, take,
retain or possess Atlantic swordfish or sharks when engaged in
commercial fishing. The vessel operator and must make such permit
available for inspection upon request by NMFS or a person authorized by
NMFS. The owner of the vessel is responsible for satisfying all of the
requirements associated with obtaining, maintaining, and making
available for inspection, all valid vessel permits.
(3) Property rights. Limited access vessel permits or any other
permit issued pursuant to this part do not represent either an absolute
right to the resource or any interest that is subject to the takings
provision of the Fifth Amendment of the U.S. Constitution. Rather,
limited access vessel permits represent only a harvesting privilege that
may be revoked, suspended, or amended subject to the requirements of the
Magnuson-Stevens Act or other applicable law.
(4) Dealer permit inspection. A dealer permit issued under this
section, or a copy thereof, must be available at each of the dealer's
places of business. A dealer must present the permit or a copy for
inspection upon the request of a NMFS-authorized officer.
(5) Display upon offloading. Upon transfer of Atlantic HMS, the
owner or operator of the harvesting vessel must present for inspection
the vessel's Atlantic tunas, shark, or swordfish permit to the receiving
dealer. The permit must be presented prior to completing any applicable
landing report specified at Sec. 635.5(a)(1), (a)(2) and (b)(2)(i).
(6) Sanctions and denials. A permit issued under this section may be
revoked, suspended, or modified, and a permit application may be denied,
in accordance with the procedures governing enforcement-related permit
sanctions and denials found at subpart D of 15 CFR part 904.
(7) Alteration. A vessel or dealer permit that is altered, erased,
mutilated, or otherwise modified is invalid.
(8) Replacement. NMFS may issue a replacement permit upon the
request of the permittee. An application for a replacement permit will
not be considered a new application. An appropriate fee, consistent with
paragraph (b) of this section, may be charged for issuance of the
replacement permit.
(9) Fees. NMFS may charge a fee for each application for a permit or
for each transfer or replacement of a permit. The amount of the fee is
calculated in accordance with the procedures of the NOAA Finance
Handbook, available from NMFS, for determining administrative costs of
each special product or service. The fee may not exceed such costs and
is specified in the instructions provided with each application form.
Each applicant must include the appropriate fee with each application or
request for transfer or replacement. A permit will not be issued to
anyone who fails to pay the fee.
(10) Permit condition. An owner issued a swordfish or shark permit
pursuant to this part must agree, as a condition of such permit, that
the vessel's swordfish or 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, or
outside the EEZ, and without regard to where such swordfish or shark, or
gear are possessed, taken or landed. However, when a vessel fishes
within the waters of a state that has more restrictive regulations on
swordfish or shark fishing, persons aboard the vessel must abide by the
state's more restrictive regulations.
(b) HMS Charter/Headboat Permits. (1) The owner of a charter boat or
headboat used to fish for, take, retain, or possess any Atlantic HMS
must obtain an HMS Charter/Headboat permit.
(2) While persons aboard a vessel that has been issued an HMS
Charter/Headboat permit are fishing for or are in possession of Atlantic
HMS, the operator of the vessel must have a valid Merchant Marine
License or Uninspected Passenger Vessel License, as applicable, issued
by the U.S. Coast Guard pursuant to regulations at 46
[[Page 213]]
CFR part 10. Such Coast Guard license must be carried on board the
vessel.
(c) [Reserved]
(d) Atlantic Tunas vessel permits. (1) The owner of each vessel used
to fish for or take Atlantic tunas or on which Atlantic tunas are
retained or possessed must obtain, in addition to any other required
permits, a permit in one and only one of the following categories:
Angling, Charter/Headboat, General, Harpoon, Longline, Purse Seine, or
Trap.
(2) Persons aboard a vessel with a valid Atlantic Tunas vessel
permit or a valid HMS Charter/Headboat permit may fish for, take,
retain, or possess Atlantic tunas, but only in compliance with the
quotas, catch limits, size classes, and gear applicable to the permit
category of the vessel from which he or she is fishing. Persons may sell
Atlantic tunas only if the harvesting vessel's valid permit is in the
General, Harpoon, Charter/Headboat, Longline, Purse Seine, or Trap
category of the Atlantic Tunas permit or is a valid HMS Charter/Headboat
permit. Persons may not sell Atlantic tunas caught on board a vessel
issued a permit in the Angling category.
(3) Except for purse seine vessels for which that permit has been
issued under this section, a vessel owner may change the category of the
vessel's permit no more than once each year and only from January 1
through May 15. From May 16 through December 31, the vessel's permit
category may not be changed, regardless of a change in the vessel's
ownership.
(4) A person can obtain an Atlantic Tunas Longline category permit
for a vessel only if the vessel has been issued both a limited access
permit for shark and a limited access permit for swordfish. NMFS will
issue Atlantic Tunas Longline category permits to qualifying vessels in
calendar year 1999. Thereafter, such permits may be obtained through
transfer from current owners consistent with the provisions under
paragraph (l)(2) of this section.
(5) An owner of a vessel with an Atlantic Tunas permit in the Purse
Seine category may transfer the permit to another purse seine vessel
that he or she owns. In either case, the owner must submit a written
request for transfer to NMFS, to an address designated by NMFS, and
attach an application for the new vessel and the existing permit. NMFS
will issue no more than 5 Atlantic Tunas Purse Seine category permits.
(e) Shark vessel LAPs. (1) As of July 1, 1999, the only valid
Federal commercial vessel permits for shark are those that have been
issued under the limited access criteria specified in Sec. 635.16.
(2) The owner of each vessel used to fish for or take Atlantic
sharks or on which Atlantic sharks are retained, possessed with an
intention to sell, or sold must obtain, in addition to any other
required permits, only one of two types of commercial limited access
shark permits: Shark directed limited access permit or shark incidental
limited access permit. See Sec. 635.16 regarding the initial issuance of
these two types of permits. It is a rebuttable presumption that the
owner or operator of a vessel on which sharks are possessed in excess of
the recreational retention limits intends to sell the sharks.
(3) A commercial limited access permit for sharks is not required if
the vessel is recreational fishing and retains no more sharks than the
recreational retention limit, is operating pursuant to the conditions of
a shark EFP, or that fishes exclusively within state waters.
(f) Swordfish vessel LAPs.
(1) The owner of each vessel used to fish for or take Atlantic
swordfish or on which Atlantic swordfish are retained, possessed with an
intention to sell, or sold must obtain, in addition to any other
required permits, only one of three types of commercial limited access
swordfish permits: swordfish directed limited access permit, swordfish
incidental limited access permit, or swordfish handgear limited access
permit. See Sec. 635.16 regarding the initial issuance of these three
types of permits.
(2) As of July 1, 1999, the only valid commercial Federal vessel
permits for swordfish are those that have been issued under the limited
access criteria specified in Sec. 635.16.
(3) A commercial Federal permit for swordfish is not required if the
vessel is recreational fishing.
[[Page 214]]
(4) Unless the owner has been issued a swordfish handgear permit, a
limited access permit for swordfish is valid only when the vessel has on
board a valid limited access permit for shark and a valid Atlantic Tunas
Longline category permit issued for such vessel.
(g) Dealer permits--(1) Atlantic tunas. A person that receives,
purchases, trades for, or barters for Atlantic tunas from a fishing
vessel of the United States or who imports or exports bluefin tuna,
regardless of ocean area of origin, must possess a valid dealer permit.
(2) Shark. A person that receives, purchases, trades for, or barters
for Atlantic sharks from a fishing vessel of the United States must
possess a valid dealer permit.
(3) Swordfish. A person that receives, purchases, trades for, or
barters for Atlantic swordfish from a fishing vessel of the United
States or who imports swordfish, regardless of origin, must possess a
valid dealer permit. Importation of swordfish by nonresident
corporations is restricted to those entities authorized under 19 CFR
141.18.
(h) Applications for permits. An owner of a vessel or a dealer must
submit to NMFS, at an address designated by NMFS, a complete application
and required supporting documents at least 30 days before the date on
which the permit is to be made effective. Application forms and
instructions for their completion are available from NMFS.
(1) Atlantic tunas vessel permits. (i) An applicant must provide all
information concerning his or her identification, vessel, gear used,
fishing areas, fisheries participated in, the corporation or partnership
owning the vessel, and income requirements requested by NMFS and
included on the application form.
(ii) An applicant must also submit a copy of the vessel's valid U.S.
Coast Guard documentation or, if not documented, a copy of its valid
state registration and any other information that may be necessary for
the issuance or administration of the permit as requested by NMFS. The
owner must submit such information to an address designated by NMFS.
(iii) NMFS may require an applicant to provide documentation
supporting the application before a permit is issued or to substantiate
why such permit should not be revoked or otherwise sanctioned under
paragraph (a)(7) of this section.
(2) Limited access permits for swordfish and shark. See Sec. 635.16
for the issuance of ILAPs for shark and swordfish. See paragraph (l) of
this section for transfers of ILAPs and LAPs for shark and swordfish.
See paragraph (m) of this section for renewals of LAPs for shark and
swordfish.
(3) Dealer permits. (i) An applicant for a dealer permit must
provide all the information requested on the application form necessary
to identify the company, its principal place of business, and mechanisms
by which the company can be contacted.
(ii) An applicant must also submit a copy of each state wholesaler's
license held by the dealer and, if a business is owned by a corporation
or partnership, the corporate or partnership documents requested on the
application form.
(iii) An applicant must also submit any other information that may
be necessary for the issuance or administration of the permit, as
requested by NMFS.
(i) Change in application information. A vessel owner or dealer must
report any change in the information contained in an application for a
permit within 30 days after such change. The report must be submitted in
writing to NMFS, to an address designated by NMFS with the issuance of
each permit. In the case of a vessel permit for Atlantic tunas or an HMS
Charter/Headboat permit, the vessel owner or operator must report the
change by phone or internet to a number or website designated by NMFS. A
new permit will be issued to incorporate the new information, subject to
limited access provisions specified in paragraph (l)(2) of this section.
For certain information changes, NMFS may require supporting
documentation before a new permit will be issued. If a change in the
permit information is not reported within 30 days, the permit is void as
of the 31st day after such change.
(j) Permit issuance. (1) NMFS will issue a permit within 30 days of
receipt
[[Page 215]]
of a complete and qualifying application. An application is complete
when all requested forms, information, and documentation have been
received, including all reports and fishing or catch information
required to be submitted under this part.
(2) NMFS will notify the applicant of any deficiency in the
application, including failure to provide information or reports
required to be submitted under this part. If the applicant fails to
correct the deficiency within 30 days following the date of
notification, the application will be considered abandoned.
(3) For issuance of ILAPs for shark and swordfish, see Sec. 635.16.
(k) Duration. A permit issued under this section will be valid for
the period specified on it unless it is revoked, suspended, or modified
pursuant to subpart D of 15 CFR part 904, the vessel or dealership is
sold, or any other information previously submitted on the application
changes, as specified in paragraph (i) of this section.
(l) Transfer--(1) General. A permit issued under this section is not
transferable or assignable to another vessel or owner or dealer; it is
valid only for the vessel or owner or dealer to whom it is issued. If a
person acquires a vessel or dealership and wants to conduct activities
for which a permit is required, that person must apply for a permit in
accordance with the provisions of paragraph (h) of this section or, if
the acquired vessel is permitted in either the shark, swordfish or tuna
longline fishery, in accordance with paragraph (l)(2) of this section.
If the acquired vessel or dealership is currently permitted, an
application must be accompanied by the original permit and by a copy of
a signed bill of sale or equivalent acquisition papers.
(2) Shark, swordfish, and tuna longline LAPs. (i) Subject to the
restrictions on upgrading the harvesting capacity of permitted vessels
in paragraph (l)(2)(ii) of this section and to the limitations on
ownership of permitted vessels in paragraph (l)(2)(iii) of this section,
an owner may transfer a shark or swordfish ILAP or LAP or an Atlantic
Tunas Longline category permit to another vessel that he or she owns or
to another person. Directed handgear ILAPs and LAPs for swordfish may be
transferred to another vessel but only for use with handgear and subject
to the upgrading restrictions in paragraph (l)(2)(ii) of this section
and the limitations on ownership of permitted vessels in paragraph
(l)(2)(iii) of this section. Incidental catch ILAPs and LAPs are not
subject to the requirements specified in paragraphs (l)(2)(ii) and
(l)(2)(iii) of this section.
(ii) An owner may upgrade a vessel with a shark, swordfish, or tuna
longline limited access permit, or transfer the limited access permit to
another vessel, and be eligible to retain or renew a limited access
permit only if the upgrade or transfer does not result in an increase in
horsepower of more than 20 percent or an increase of more than 10
percent in length overall, gross registered tonnage, or net tonnage from
the vessel baseline specifications.
(A) The vessel baseline specifications are the respective
specifications (length overall, gross registered tonnage, net tonnage,
horsepower) of the first vessel that was issued an initial limited
access permit or, if applicable, of that vessel's replacement owned as
of May 28, 1999.
(B) The vessel's horsepower may be increased only once subsequent to
the issuance of a limited access permit, whether through refitting,
replacement, or transfer. Such an increase may not exceed 20 percent of
the horsepower of the vessel's baseline specifications, as applicable.
(C) The vessel's length overall, gross registered tonnage, and net
tonnage may be increased only once subsequent to the issuance of a
limited access permit, whether through refitting, replacement, or
transfer. Any increase in any of these three specifications of vessel
size may not exceed 10 percent of the vessel's baseline specifications,
as applicable. If any of these three specifications is increased, any
increase in the other two must be performed at the same time. This type
of upgrade may be done separately from an engine horsepower upgrade.
(iii) No person or entity may own or control more than 5 percent of
the vessels for which swordfish directed, shark
[[Page 216]]
directed or tuna longline limited access permits have been issued.
(iv) In order to transfer a swordfish, shark or tuna longline
limited access permit to a replacement vessel, the owner of the vessel
issued the limited access permit must submit a request to NMFS, at an
address designated by NMFS, to transfer the limited access permit to
another vessel, subject to requirements specified in paragraph
(l)(2)(ii) of this section, if applicable. The owner must return the
current valid limited access permit to NMFS with a complete application
for a limited access permit, as specified in paragraph (h) of this
section, for the replacement vessel. Copies of both vessels' U.S. Coast
Guard documentation or state registration must accompany the
application.
(v) For swordfish, shark, and tuna longline limited access permit
transfers to a different person, the transferee must submit a request to
NMFS, at an address designated by NMFS, to transfer the original limited
access permit(s), subject to requirements specified in paragraphs
(l)(2)(ii) and (l)(2)(iii) of this section, if applicable. The following
must accompany the completed application: The original limited access
permit(s) with signatures of both parties to the transaction on the back
of the permit(s) and the bill of sale for the permit(s). A person must
include copies of both vessels' U.S. Coast Guard documentation or state
registration for limited access permit transfers involving vessels.
(vi) For limited access permit transfers in conjunction with the
sale of the permitted vessel, the transferee of the vessel and limited
access permit(s) issued to that vessel must submit a request to NMFS, at
an address designated by NMFS, to transfer the limited access permit(s),
subject to requirements specified in paragraphs (l)(2)(ii) and
(l)(2)(iii) of this section, if applicable. The following must accompany
the completed application: The original limited access permit(s) with
signatures of both parties to the transaction on the back of the
permit(s), the bill of sale for the limited access permit(s) and the
vessel, and a copy of the vessel's U.S. Coast Guard documentation or
state registration.
(vii) The owner of a vessel issued a limited access permit(s) who
sells the permitted vessel but retains the limited access permit(s) must
notify NMFS within 30 days after the sale of the change in application
information in accordance with paragraph (i) of this section. If the
owner wishes to transfer the limited access permit(s) to a replacement
vessel, he/she must apply according to the procedures in paragraph
(l)(2)(iv) of this section.
(viii) As specified in paragraph (f)(4) of this section, a directed
or incidental ILAP or LAP for swordfish, a directed or an incidental
catch ILAP or LAP for shark, and an Atlantic Tunas commercial category
permit are required to retain swordfish. Accordingly, a LAP for
swordfish obtained by transfer without either a directed or incidental
catch shark LAP or an Atlantic tunas commercial category permit will not
entitle an owner or operator to use a vessel to fish in the swordfish
fishery.
(ix) As specified in paragraph (d)(4) of this section, a directed or
incidental ILAP or LAP for swordfish, a directed or an incidental catch
ILAP or LAP for shark, and an Atlantic Tunas Longline category permit
are required to retain Atlantic tunas taken by pelagic longline gear.
Accordingly, an Atlantic Tunas Longline category permit obtained by
transfer without either a directed or incidental catch swordfish or
shark LAP will not entitle an owner or operator to use the permitted
vessel to fish in the Atlantic tunas fishery with pelagic longline gear.
(m) Renewal--(1) General. Persons must apply annually for a vessel
or dealer permit for Atlantic tunas, sharks, and swordfish, and HMS
Charter/Headboats. Persons must apply annually for an Atlantic tunas or
HMS Charter/headboat vessel permit. A renewal application must be
submitted to NMFS, at an address designated by NMFS, at least 30 days
before a permit's expiration to avoid a lapse of permitted status. NMFS
will renew a permit provided that the specific requirements for the
requested permit are met, including those described in Sec. 635.4
(l)(2), all reports required under the Magnuson-Stevens Act and ATCA
have been submitted, including those described in Sec. 635.5, and the
applicant is
[[Page 217]]
not subject to a permit sanction or denial under paragraph (a)(6) of
this section.
(2) Shark, swordfish, and tuna longline LAPs. As of June 1, 2000,
the owner of a vessel of the United States that fishes for, possesses,
lands or sells shark or swordfish from the management unit, or takes or
possesses such shark or swordfish as incidental catch or that fishes for
Atlantic tunas with longline gear must have the applicable limited
access permit(s) issued pursuant to the requirements in Sec. 635.4,
paragraphs (e) and (f). However, any ILAP that expires on June 30, 2000,
is valid through that date. Only valid limited access permit holders in
the preceding year are eligible for renewal of a limited access
permit(s). Limited access permits that have been transferred according
to the procedures of paragraph (l) of this section are not eligible for
renewal by the transferor.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37703, July 13, 1999; 65
FR 47238, Aug. 1, 2000]
Effective Date Note: At 64 FR 29137, May 28, 1999, Sec. 635.4 was
added. Paragraph (b) has information collection requirements and will
not become effective until Office of Management and Budget approval.
Sec. 635.5 Recordkeeping and reporting.
Information on HMS vessel and dealer reporting requirements may be
obtained from the Division Chief or where otherwise stated in this part.
(a) Vessels--(1) Logbooks. If an owner of an HMS Charter/Headboat
vessel, an Atlantic Tunas vessel, or a commercial shark or swordfish
vessel, for which a permit has been issued under Sec. 635.4(c), (d),
(e), or (f), is selected for logbook reporting in writing by NMFS, he or
she must maintain and submit a fishing record on a logbook specified by
NMFS. Entries are required regarding the vessel's fishing effort and the
number of fish landed and discarded. Entries on a day's fishing
activities must be entered on the form within 48 hours of completing
that day's activities and, for a 1-day trip, before offloading. The
owner or operator of the vessel must submit the logbook form(s)
postmarked within 7 days of offloading all Atlantic HMS.
(2) Weighout slips. If an owner of a permitted vessel is required to
maintain and submit logbooks under paragraph (a)(1) of this section, and
Atlantic HMS harvested on a trip are sold, the owner or operator must
obtain and submit copies of weighout slips for those fish. Each weighout
slip must show the dealer to whom the fish were transferred, the date
they were transferred, and the carcass weight of each fish for which
individual weights are normally recorded. For fish that are not
individually weighed, a weighout slip must record total weights by
species and market category. A weighout slip for sharks prior to or as
part of a commercial transaction involving shark carcasses or fins must
record the weights of carcasses and any detached fins. The owner or
operator must also submit copies of weighout slips with the logbook
forms required to be submitted under paragraph (a)(1) of this section.
(3) BFT not sold. If a person who catches and lands a large medium
or giant BFT from a vessel issued a permit in any of the commercial
categories for Atlantic tunas does not sell or otherwise transfer the
BFT to a dealer who has a dealer permit for Atlantic tunas, the person
must contact a NMFS enforcement agent, at a number designated by NMFS,
at the time of landing such BFT, provide the information needed for the
reports required under paragraph (b)(2)(i) of this section, and, if
requested, make the tuna available so that a NMFS enforcement agent or
authorized officer may inspect the fish and attach a tag to it.
Alternatively, such reporting requirement may be fulfilled if a dealer
who has a dealer permit for Atlantic tunas reports the BFT as being
landed but not sold on the reports required under paragraph (b)(2)(i) of
this section. All BFT landed but not sold will be applied to the quota
category according to the permit category of the vessel from which it
was landed.
(b) Dealers. Persons who have been issued a dealer permit under
Sec. 635.4 must submit reports to NMFS, to an address designated by
NMFS, and maintain records as follows:
(1) Atlantic HMS. (i) Dealers that receive Atlantic swordfish and
Atlantic
[[Page 218]]
sharks from U.S. vessels must report all Atlantic tunas (including BFT),
Atlantic swordfish and Atlantic sharks received from U.S. vessels on a
form available from NMFS.
(ii) Dealers must report all imports of BFT and swordfish on forms
available from NMFS.
(iii) Reports of Atlantic swordfish and shark dealers, including
reports of imported swordfish and bluefin tuna, received on the first
through the 15th of each month must be postmarked no later than the 25th
of that month. Reports of such fish received on the 16th through the
last day of each month must be postmarked not later than the 10th of the
following month. For swordfish imports, a dealer must attach a copy of
each certificate of eligibility to the report required under paragraph
(b)(1)(i) of this section. If a dealer has not received Atlantic
swordfish or Atlantic sharks from U.S. vessels, during a reporting
period, he or she must submit a report to NMFS, to an address designated
by NMFS so stating, and the report must be postmarked as specified for
the reporting period. A negative report is not necessary for Atlantic
swordfish imports.
(iv) The reporting requirement of paragraph (b)(1)(i) of this
section may be satisfied by a dealer if he or she provides a copy of
each appropriate weighout slip or sales record, provided such weighout
slip or sales record by itself or combined with the form available from
NMFS includes all of the required information and identifies each fish
by species.
(v) The dealer may mail or fax such report to an address designated
by NMFS or may hand-deliver such report to a state or Federal fishery
port agent designated by NMFS. If the dealer hand-delivers the report to
a port agent, a dealer must deliver such report no later than the
prescribed postmark date for the reporting period.
(2) Requirements for BFT--(i) Reports of BFT. Each dealer must
submit a completed landing report on each BFT received, to NMFS, at an
address designated by NMFS, by electronic facsimile (fax) not later than
24 hours from receipt of the fish. The landing report must be signed by
the permitted vessel's owner or operator immediately upon transfer of
the fish and must indicate the name and permit number of the vessel that
landed the fish. The dealer must inspect the vessel's permit to verify
that the required vessel name and vessel permit number as listed on the
permit are correctly recorded on the landing report. The dealer must
also submit a bi-weekly report on forms supplied by NMFS for transfers
from U.S. vessels and for imports of BFT. For BFT received on the first
through the 15th of each month, the dealer must submit the bi-weekly
report forms to NMFS postmarked no later than the 25th of that month.
Reports of receipt of such BFT received on the 16th through the last day
of each month must be postmarked not later than the 10th of the
following month.
(ii) Dealer Tags. NMFS will issue numbered dealer tags to each
person issued a dealer permit for Atlantic tunas under Sec. 635.4. A
dealer tag is not transferable and is usable only by the dealer to whom
it is issued. Dealer tags may not be reused once affixed to a tuna or
recorded on a package, container, or report.
(A) Affixing dealer tags. A dealer or a dealer's agent must affix a
dealer tag to each BFT purchased or received immediately upon its
offloading from a vessel. The dealer or dealer's agent must affix the
tag to the tuna between the fifth dorsal finlet and the caudal keel.
(B) Removal of dealer tags. A dealer tag affixed to any BFT under
paragraph (b)(2)(ii)(A) of this section or a BSD tag affixed to an
imported BFT must remain on the tuna until the tuna is cut into
portions. If the BFT or BFT parts subsequently are packaged for
transport for domestic commercial use or for export, the dealer or the
BSD tag number must be written legibly and indelibly on the outside of
any package or container. Such tag number must be recorded on any
document accompanying shipment of BFT for commercial use or export.
(3) Recordkeeping. Dealers must retain at their place of business a
copy of each written report required under paragraphs (b)(1)(i) through
(b)(1)(iii) and paragraph (b)(2)(i) of this section for a period of 2
years from the date on
[[Page 219]]
which each report was required to be submitted.
(c) Anglers. The owner of a vessel permitted in the Atlantic tunas
Angling or Atlantic tunas or HMS Charter/Headboat category must report
all BFT landed under the Angling category quota to NMFS through the
automated catch reporting system by calling 1-888-USA-TUNA within 24
hours of the landing. Alternative BFT reporting procedures may be
established by NMFS in cooperation with states and may include such
methodologies as telephone, dockside or mail surveys, mail in or phone-
in reports, tagging programs, or mandatory check-in stations. A census
or a statistical sample of persons fishing under the Angling category
may be used for these alternative reporting programs, and owners of
selected vessels will be notified by NMFS or by the cooperating state
agency of the requirements and procedures for reporting BFT. Each person
so notified must comply with those requirements and procedures.
Additionally, NMFS may determine that BFT landings reporting systems
implemented by the states, if mandatory, at least as restrictive, and
effectively enforced, are sufficient for Angling category quota
monitoring. In such case, NMFS will file with the Office of the Federal
Register for publication notification indicating that compliance with
the state system satisfies the reporting requirement of this paragraph
(c).
(d) Tournament operators. A tournament operator must notify NMFS of
the purpose, dates, and location of the tournament conducted from a port
in an Atlantic coastal state, including the U.S. Virgin Islands and
Puerto Rico, at least 4 weeks prior to commencement of the tournament.
NMFS will notify a tournament operator in writing, when his or her
tournament has been selected for reporting. The tournament operator that
is selected must maintain and submit to NMFS a record of catch and
effort on forms available from NMFS. Tournament operators must submit
completed forms to NMFS, at an address designated by NMFS, postmarked no
later than the 7th day after the conclusion of the tournament and must
attach a copy of the tournament rules.
(e) Inspection. Any person authorized to carry out enforcement
activities under the regulations in this part has the authority, without
warrant or other process, to inspect, at any reasonable time, catch on
board a vessel or on the premises of a dealer, logbooks, catch reports,
statistical records, sales receipts, or other records and reports
required by this part to be made, kept, or furnished. An owner or
operator of a fishing vessel that has been issued a permit under
Sec. 635.4 must allow NMFS or an authorized person to inspect and copy
any required reports and the records, in any form, on which the
completed reports are based, wherever they exist. An agent of a person
issued a vessel or dealer permit under this part, or anyone responsible
for offloading, storing packing, or selling regulated HMS for such
permittee, shall be subject to the inspection provisions of this
section.
(f) Additional data and inspection. Additional data on fishing
effort directed at Atlantic HMS or on catch of Atlantic HMS, regardless
of whether retained, may be collected by contractors and statistical
reporting agents, as designees of NMFS, and by authorized officers. A
person issued a permit under Sec. 635.4 is required to provide requested
information about fishing activity, and a person, regardless of whether
issued a permit under Sec. 635.4, who possesses an Atlantic HMS is
required to make such fish or parts thereof available for inspection by
NMFS or its designees upon request.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37704, July 13, 1999]
Sec. 635.6 Vessel and gear identification.
(a) Vessel number. For the purposes of this section, a vessel's
number is the vessel's official number issued by either by the U.S.
Coast Guard or by the appropriate state agency.
(b) Vessel identification. (1) An owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 must display the
vessel's number-
(i) On the port and starboard sides of the deckhouse or hull and on
an appropriate weather deck, so as to be clearly visible from an
enforcement vessel or aircraft.
[[Page 220]]
(ii) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(iii) At least 18 inches (45.7 cm) in height for vessels over 65 ft
(19.8 m) long and at least 10 inches (25.4 cm) in height for all other
vessels.
(2) The owner or operator of a vessel for which a permit has been
issued under Sec. 635.4 must keep the vessel's number clearly legible
and in good repair and ensure that no part of the vessel, its rigging,
its fishing gear, or any other material on board obstructs the view of
the vessel's number from an enforcement vessel or aircraft.
(c) Gear identification. (1) The owner or operator of a vessel for
which a permit has been issued under Sec. 635.4 and that uses a
handline, harpoon, longline, or gillnet, must display the vessel's name,
registration number or Atlantic Tunas permit number on each float
attached to a handline or harpoon and on the terminal floats and high-
flyers (if applicable) on a longline or gillnet used by the vessel. The
vessel's name or number must be at least 1 inch (2.5 cm) in height in
block letters or arabic numerals in a color that contrasts with the
background color of the float or high-flyer.
(2) An unmarked handline, harpoon, longline, or gillnet, is illegal
and may be disposed of in an appropriate manner by NMFS or an authorized
officer.
(3) In addition to gear marking requirements in this paragraph
(c)(1), provisions on gear marking for the southeast U.S. shark gillnet
fishery to implement the Atlantic Large Whale Take Reduction Plan are
set forth in Sec. 229.32(b) of this title.
Sec. 635.7 At-sea observer coverage.
(a) Applicability. NMFS may select for observer coverage any vessel
that has an Atlantic HMS, tunas, shark or swordfish permit issued under
Sec. 635.4. Vessels permitted in the HMS Charter/Headboat and Atlantic
Tunas Angling and Charter/Headboat categories will be requested to take
observers on a voluntary basis. When selected, vessels issued any other
permit under Sec. 635.4 are required to take observers on a mandatory
basis.
(b) Selection of vessels. NMFS will notify a vessel owner, in
writing, when his or her vessel is selected for observer coverage.
Vessels will be selected to provide information on catch, bycatch and
other fishery data according to the need for representative samples.
(c) Notification of trips. The owner or operator of a vessel that is
selected under paragraph (b) of this section must notify NMFS, at an
address designated by NMFS, before commencing any fishing trip that may
result in the incidental catch or harvest of Atlantic HMS. Notification
procedures and information requirements such as expected gear
deployment, trip duration and fishing area will be specified in a
selection letter sent by NMFS.
(d) Assignment of observers. Once notified of a trip, NMFS will
assign an observer for that trip based on current information needs
relative to the expected catch and bycatch likely to be associated with
the indicated gear deployment, trip duration and fishing area. If an
observer is not assigned for a fishing trip, NMFS will issue a waiver
for that trip to the owner or operator of the selected vessel. If an
observer is assigned for a trip, the operator of the selected vessel
must arrange to embark the observer and shall not fish for or retain any
Atlantic HMS unless the NMFS-assigned observer is aboard.
Notwithstanding the above procedures for assignment or waiver, at no
time shall a person aboard a vessel issued a directed shark ILAP or LAP
under Sec. 635.4 fish for Atlantic sharks with a gillnet or possess
sharks on board a vessel issued a directed shark ILAP or LAP with a
gillnet on board unless a NMFS-approved observer is aboard the vessel.
(e) Requirements. The owner or operator of a vessel on which a NMFS-
approved observer is embarked, regardless of whether required to carry
the observer, must comply with Secs. 600.725 and 600.746 of this chapter
and--
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the transmission
and receipt of
[[Page 221]]
messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any other
space used to hold, process, weigh, or store fish.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of fish for that trip.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37704, July 13, 1999]
Subpart B-Limited Access
Sec. 635.16 Limited access permits.
As of July 1, 1999, the only valid commercial vessel permits for
shark and swordfish are those that have been issued under the limited
access criteria specified in this section. If the Federal commercial
shark permit issued to the vessel owner prior to July 1, 1999, was based
on the qualifications of the operator, then a shark limited access
permit will be issued to the qualifying vessel owner, subject to the
provisions in this part, with the requirement that the operator must be
on board the vessel to fish for, take, retain, or possess Atlantic
sharks in state or Federal waters. This requirement expires May 30,
2000.
(a) Eligibility requirements for ILAPs--(1) Directed permits. To be
eligible for a directed ILAP in the shark or swordfish fishery, a vessel
owner must demonstrate past participation in the respective fishery by
having--
(i) Been the owner of a vessel that was issued a valid permit for
the respective fishery at any time from July 1, 1994, through December
31, 1997.
(ii) Documented shark or swordfish landings from the respective
federally permitted vessel that he or she owned, of at least $5,000 per
year in value or in number per year as follows--
(A) One hundred and two sharks per year for any 2 calendar years,
from January 1, 1991, through December 31, 1997, provided the landings
after July 1, 1993, occurred when the permit was valid, or
(B) Twenty-five swordfish per year for any 2 calendar years, from
January 1, 1987, through December 31, 1997, provided the landings
occurred when the permit was valid.
(iii) Been the owner of a vessel in the respective fishery that--
(A) Had a valid Federal shark permit at any time from January 1,
1998, through December 31, 1998, or
(B) Had a valid Federal swordfish permit at any time from June 1,
1998, through November 30, 1998.
(2) Incidental catch permits. To be eligible for an incidental ILAP
in the shark or swordfish fishery, a vessel owner must demonstrate past
participation in the respective fishery by having--
(i) Been the owner of a vessel that was issued a valid permit for
the respective fishery at any time from July 1, 1994, through December
31, 1997; and
(ii) Documented landings from the respective federally permitted
vessel that he or she owned of at least--
(A) Seven sharks from January 1, 1991, through December 31, 1997,
provided the landings after July 1, 1993, occurred when the permit was
valid; or
(B) Eleven swordfish from January 1, 1987, through December 31,
1997, provided the landings occurred when the permit was valid; and
(iii) Been the owner of a vessel in the respective fishery that--
(A) Had a valid Federal shark permit at any time from January 1,
1998, through December 31, 1998, or
(B) Had a valid Federal swordfish permit at any time from June 1,
1998, through November 30, 1998; and
(iv) Met either the gross income from fishing or the gross sales of
fish requirement specified in paragraph (a)(3)(i) or (ii) of this
section; or
(v) Been the owner of a vessel that had a permit for Atlantic tuna
in the Incidental category at any time from January 1, 1998, through
December 31, 1998; or
(vi) Been the owner of a vessel that is eligible for a directed or
incidental ILAP for swordfish (incidental shark ILAPs only).
(3) Handgear permits. To be eligible for a swordfish handgear ILAP--
[[Page 222]]
(i) The owner's gross income from commercial fishing (i.e., harvest
and first sale of fish) or from charter/headboat fishing must be more
than 50 percent of his or her earned income, during one of the 3
calendar years preceding the application, or
(ii) The owner's gross sales of fish harvested from his or her
vessel must have been more than $20,000, during one of the 3 calendar
years preceding the application, or
(iii) The owner must provide documentation of having been issued a
swordfish permit for use with harpoon gear, or
(iv) The owner must document his or her historical landings of
swordfish with handgear through logbook records, verifiable sales slips
or receipts from registered dealers or state landings records.
(b) Landings histories. For the purposes of the landings history
criteria in paragraphs (a)(1)(ii) and (a)(2)(ii) of this section:
(1) The owner of a permitted vessel at the time of a landing retains
credit for the landing unless ownership of the vessel and the landings
history has been transferred and there is a written agreement signed by
both parties to the transfer, or there is other credible written
evidence that the original owner transferred the landings history to the
new owner.
(2) A vessel's landings history may not be divided among owners. A
transfer of credit for landings history must be for the entire record of
landings under the previous owner.
(3) Vessel landings histories may not be consolidated among vessels.
Owners may not pool landings histories to meet the eligibility
requirements.
(c) Alternative eligibility requirements for initial permits. (1)
Persons who acquired ownership of a vessel and its landings history
after December 31, 1997, are exempt from the requirement to have owned a
federally permitted shark or swordfish vessel at any time during the
period July 1, 1994, through December 31, 1997. The acquired landings
history must meet the criteria for a directed or incidental catch permit
specified in paragraph (a)(1)(ii)(A), (a)(1)(ii)(B), (a)(2)(ii)(A) or
paragraph (a)(2)(ii)(B) of this section, and such persons must have had
a valid Federal shark permit at any time from January 1, 1998, through
December 31, 1998, or a valid Federal swordfish permit at any time from
June 1, 1998, through November 30, 1998.
(2) If a person first obtained a shark or swordfish permit in 1997,
the required landings for a directed or incidental catch permit
specified in paragraphs (a)(1)(ii) and (a)(2)(ii) are modified as
follows:
(i) To qualify for a directed shark or swordfish ILAP, respectively,
such persons must document landings from a federally permitted vessel of
at least:
(A) One hundred and two sharks in calendar year 1997, provided such
landings occurred when the permit was valid, or
(B) Twenty-five swordfish in calendar year 1997, provided such
landings occurred when the permit was valid.
(ii) To qualify for an incidental shark or swordfish catch ILAP,
respectively, such persons must document landings from a federally
permitted vessel of at least one shark or swordfish in calendar year
1997, provided such landings occurred when the permit was valid.
(d) Procedures for initial issuance of LAPs--(1) Notification of
status. NMFS will send all written correspondence regarding limited
access permits by certified mail.
(i) Shortly after the final rule is published, the Division Chief
will notify each owner of a vessel who had a valid Federal shark permit
at any time from January 1, 1998, through December 31, 1998, each owner
of a vessel who had a valid Federal swordfish permit at any time from
June 1, 1998, through November 30, 1998, and each owner of a vessel that
had a valid Atlantic tuna Incidental category permit at any time from
January 1, 1998, through December 31, 1998, of the initial determination
of the owner's eligibility for a directed or incidental catch ILAP. The
Division Chief will make the initial determination based on the criteria
in paragraphs (a)(1), (a)(2), and (c)(2) of this section and on records
available to NMFS and mail the appropriate permit. The Division Chief
will not make initial determinations of eligibility for a vessel permit
under the alternative eligibility requirements specified in
[[Page 223]]
paragraph (a)(3) or (c)(1) of this section; persons that believe they
qualify for a LAP under these criteria must apply to the Division Chief.
(ii) If NMFS determines that all qualifications for a directed or
incidental catch ILAP have been met and that no further action is
required, the appropriate permit for the vessel will be included with
the notification. An ILAP issued by NMFS will be valid through the
expiration date indicated on the permit.
(iii) A person must apply to the Division Chief for the appropriate
permit if--
(A) He or she does not agree with the initial determination;
(B) He or she believes that he or she qualifies for a directed or
incidental catch ILAP but did not receive a letter from the Division
Chief regarding eligibility status; or
(C) He or she believes that he or she qualifies for a swordfish
handgear permit.
(2) Applications for ILAPs. (i) Applicants may obtain application
forms and instructions from the Division Chief. The vessel owner must
submit a completed signed application form and all required supporting
documents.
(ii) An application for a directed or incidental catch ILAP must be
submitted to the Division Chief postmarked no later than September 1,
1999. An application for an initial swordfish handgear permit must be
submitted to the Division Chief postmarked no later than December 1,
1999. Any application received by the Division Chief after these dates
will not be considered.
(iii) Each application must be accompanied by documentation showing
that the criteria for the requested permit have been met. Vessel
landings of sharks in numbers of fish or value through June 30, 1993,
may be documented by verifiable sales slips or receipts from registered
dealers or by state landings records. Vessel landings of sharks in
numbers of fish after July 1, 1993, and all vessel landings of swordfish
in numbers of fish may be documented only by fishing vessel logbook
records that NMFS received before March 2, 1998. Vessel landings of
sharks or swordfish in value may be documented by verifiable sales slips
or receipts from registered dealers or by state landings records. NMFS
will not apply any landing of fish by number of fish or value that
occurred when the vessel did not have a valid Federal permit.
(iv) Information submitted on an application and documentation in
support of an application is subject to verification by comparison with
Federal, state, and other records and information. Submission of false
information or documentation may result in disqualification from initial
participation in the shark, swordfish, or tunas fisheries and may result
in Federal prosecution.
(v) If the Division Chief receives an incomplete application in a
timely manner, NMFS will notify the applicant of the deficiency. If the
applicant fails to correct the deficiency within 30 days of the date of
receipt of the Division Chief's notification, the application will be
considered abandoned.
(3) Actions on applications. Within 30 days of receipt of a complete
application, the Division Chief will take one of the following actions:
(i) If the eligibility requirements are met, the Division Chief will
issue the appropriate ILAP which will be valid through the marked
expiration date.
(ii) If, based on the information and documentation supplied with
the application, the Division Chief determines that the applicant does
not meet the eligibility criteria for the requested vessel permit, the
Division Chief will deny the application in a letter to the applicant.
If, based on the documentation supplied, the Division Chief believes the
applicant is qualified for an incidental catch vessel permit instead of
the requested directed ILAP, he or she will notify the applicant of the
denial of the requested directed ILAP but will issue the incidental
catch ILAP.
(4) Appeals. (i) If an application for an ILAP is denied or if an
incidental catch ILAP is issued instead of the requested directed ILAP,
the applicant may appeal the denial to the Director. The sole grounds
for appeal will be that the original denial by the Division Chief was
based on incorrect or incomplete information. No other grounds will be
[[Page 224]]
considered. An appeal must be in writing, must be submitted to the
Director postmarked no later than 90 days after receipt of the notice of
denial, must specify the grounds for the appeal, and must include
documentation supporting the grounds for the appeal. Documentation of
vessel landings that the Director may consider in support of an appeal
is described in paragraph (d)(2)(iii) of this section. Photocopies of
documentation (e.g., permits, logbook reports) will be acceptable for
initial submission. The Director may request originals at a later date,
which would be returned to the appellant.
(ii) Upon receipt of a complete written appeal with supporting
documentation, the Director may issue a provisional ILAP that is valid
for the period during the appeal. This provisional permit will be valid
only for use with the specified gear and will be subject to all
regulations contained in this part.
(iii) The Director will appoint an appeals officer who will review
the appeal documentation and other available records. If the information
and documentation presented in the appeal are insufficient, inconsistent
with vessel ownership, landings history, and other information available
from NMFS' records, or cannot be verified, the appeals officer may
notify the appellant that the information supplied is not adequate to
warrant issuance of the requested permit. The appellant will have 30
days from the date of receipt of the notification to submit to the
appeals officer corroborating documents in support of the appeal or to
submit a revised appeal. After the written appeal documentation is
complete, the appeals officer will make findings and a recommendation,
which shall be advisory only, to the Director within 60 days of receipt
of the appeal.
(iv) The Director will make a final decision on the appeal and send
the appellant notice of the decision. The Director's decision is the
final administrative action of the Department of Commerce on the
application.
(v) If the appeal is denied, the provisional permit will become
invalid 5 days after receipt of the notice of denial. If the appeal is
accepted, NMFS will issue an appropriate permit.
(e) Transfer of LAPs. For provisions on transfer of limited access
permits, see Sec. 635.4(l).
(f) Renewal of LAPs. For provisions on renewal of limited access
permits, see Sec. 635.4(m).
Subpart C--Management Measures
Sec. 635.20 Size limits.
(a) General. The CFL will be the sole criterion for determining the
size and/or size class of whole (head on) Atlantic tunas.
(b) BFT size classes. The size class of a BFT found with the head
removed shall be determined using pectoral fin curved fork length
(PFCFL) multiplied by a conversion factor of 1.35. The CFL, as
determined by conversion of the PFCFL, will be the sole criterion for
determining the size class of a beheaded BFT. The conversion factor may
be adjusted after consideration of additional scientific information and
fish measurement data, and will be made effective by filing with the
Office of the Federal Register for publication notification of the
adjustment.
(c) BFT, bigeye tuna, and yellowfin tuna. (1) No person shall take,
retain, or possess a BFT, bigeye tuna, or yellowfin tuna in the Atlantic
Ocean that is less than 27 inches (69 cm) CFL;
(2) Applying the conversion factor from PFCFL to CFL for a beheaded
BFT in Sec. 635.20(b) means that no person shall retain or possess a
BFT, with the head removed, that is less than 20 inches (51 cm) PFCFL.
(3) No person shall remove the head of a bigeye tuna or yellowfin
tuna if the remaining portion would be less than 27 inches (69 cm) from
the fork of the tail to the forward edge of the cut.
(d) Billfish. (1) No person shall take, retain or possess a blue
marlin taken from its management unit that is less than 99 inches (251
cm), LJFL.
(2) No person shall take, retain or possess a white marlin taken
from its management unit that is less than 66 inches (168 cm), LJFL.
(3) No person shall take, retain or possess shoreward of the outer
boundary of the EEZ a sailfish taken from its management unit that is
less than 63 inches (160 cm), LJFL.
[[Page 225]]
(e) Sharks. (1) No person shall take, retain, or possess in the
Atlantic EEZ any species classified as a ridgeback LCS shark, taken from
its management unit that is less than 54 inches (137 cm), fork length,
or, if the head and fins have been removed, 30 inches (76 cm) as a
straight line from the first dorsal fin ray to the precaudal pit. If the
precaudal pit has been removed, such measurement will be to the
posterior edge of the carcass. For the purposes of enforcing the minimum
size, it is a rebuttable presumption that any ridgeback shark from which
the head and fins have been removed is a ridgeback LCS shark.
(2) All sharks landed under the recreational retention limits
specified at Sec. 635.22(c) must have the head, tail, and fins attached
and be at least 54 inches (137 cm), FL, except that the minimum size
limit does not apply for Atlantic sharpnose sharks.
(f) Swordfish. (1) No person shall take, retain, or possess a north
or south Atlantic swordfish taken from its management unit that is less
than 29 inches (73 cm), CK, or 33 lb (15 kg) dressed weight. A swordfish
that is damaged by shark bites may be retained only if the remainder of
the carcass is at least 29 inches (73 cm) CK, or 33 lb (15 kg) dw. No
person shall import into the United States an Atlantic swordfish
weighing less than 33 lb (15 kg) dressed weight, or a part derived from
a swordfish that weighs less than 33 lb (15 kg) dressed weight.
(2) Except for a swordfish landed in a Pacific state and remaining
in the state of landing, a swordfish, or part thereof, weighing less
than 33 lb (15 kg) dressed weight will be deemed to be an Atlantic
swordfish harvested by a vessel of the United States and to be in
violation of the minimum size requirement of this section unless such
swordfish, or part thereof, is accompanied by a certificate of
eligibility attesting that the swordfish was lawfully imported. Refer to
Sec. 635.46(b) for the requirements related to the certificate of
eligibility.
(3) A swordfish, or part thereof, will be monitored for compliance
with the minimum size requirement of this section from the time it is
landed in, or imported into, the United States up to, and including, the
point of first transaction in the United States.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37704, July 13, 1999]
Sec. 635.21 Gear operation and deployment restrictions.
(a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested
from its management unit that is not retained must be released in a
manner that will ensure maximum probability of survival, but without
removing the fish from the water.
(2) If a billfish is caught by a hook, the fish must be released by
cutting the line near the hook or by using a dehooking device, in either
case without removing the fish from the water.
(b) General. No person shall use any gear to fish for Atlantic HMS
other than those gears specifically authorized in this part. A vessel
using or having on board in the Atlantic Ocean any unauthorized gear may
not have on board an Atlantic HMS.
(c) Pelagic longlines. For purposes of this part, a vessel is
considered to have pelagic longline gear on board when a power-operated
longline hauler, a mainline, high-flyers, floats capable of supporting
the mainline, and leaders (gangions) with hooks are on board. Removal of
any one of these elements constitutes removal of pelagic longline gear.
If a vessel issued a permit under this part is in a closed area
designated under paragraph (c)(2) of this section with pelagic longline
gear on board, it is a rebuttable presumption that fish on board such
vessel were taken with pelagic longline gear in the closed area.
(1) From August 1, 1999, through November 30, 2000, no person may
deploy a pelagic longline that is more than 24 nautical miles (44.5 km)
in length in the Mid-Atlantic Bight.
(2) If pelagic longline gear is on board a vessel issued a permit
under this part, persons aboard that vessel may not fish or deploy any
type of fishing gear in:
(i) The Northeastern United States closed area from June 1 through
June 30 each calendar year;
(ii) In the Charleston Bump closed area from February 1 through
April 30 each calendar year;
[[Page 226]]
(iii) In the Florida East Coast closed area at any time beginning at
12:01 a.m. on February 1, 2001; and,
(iv) In the DeSoto Canyon closed area at any time beginning at 12:01
a.m. on November 1, 2000.
(3) When a marine mammal or sea turtle is hooked or entangled by
pelagic longline gear, the operator of the vessel must immediately
release the animal, retrieve the pelagic longline gear, and move at
least 1 nm (2 km) from the location of the incident before resuming
fishing. Reports of marine mammal entanglements must be submitted to
NMFS consistent with regulations in Sec. 229.6 of this title.
(4) In the Gulf of Mexico: pelagic longline gear may not be fished
or deployed from a vessel issued a permit under this part with live bait
affixed to the hooks; and, a person aboard a vessel issued a permit
under this part that has pelagic longline gear on board shall not
maintain live baitfish in any tank or well on board the vessel and shall
not possess live baitfish, and shall not set up or attach an aeration or
water circulation device in or to any such tank or well. For the
purposes of this section, the Gulf of Mexico includes all waters of the
U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c).
(d) Authorized gear--(1) Atlantic tunas. A person that retains or
possesses an Atlantic bluefin tuna may not have on board a vessel or use
on board the vessel any gear other than that authorized for the category
for which the Atlantic tunas or HMS permit has been issued for such
vessel. When fishing for Atlantic tunas other than BFT, fishing gear
authorized for any Atlantic Tunas permit category may be used, except
that purse seine gear may be used only on board vessels permitted in the
Purse Seine category and pelagic longline gear may be used only on board
vessels issued an Atlantic Tunas Longline category tuna permit as well
as ILAPs or LAPs for both swordfish and sharks. When fishing for BFT, a
person must use only the gear types authorized for the Atlantic tunas or
HMS permit category of the fishing vessel:
(i) Angling. Rod and reel (including downriggers) and handline.
(ii) Charter/Headboat. Rod and reel (including downriggers), bandit
gear, and handline.
(iii) General. Rod and reel (including downriggers), handline,
harpoon, and bandit gear.
(iv) Harpoon. Harpoon.
(v) Longline. Longline.
(vi) Purse Seine. Purse seine.
(A) Mesh size. A purse seine used in directed fishing for BFT must
have a mesh size equal to or smaller than 4.5 inches (11.4 cm) in the
main body (stretched when wet) and must have at least 24-count thread
throughout the net.
(B) Inspection of purse seine vessels. Persons that own or operate a
purse seine vessel conducting a directed fishery for Atlantic tunas must
have their fishing gear inspected for mesh size by an enforcement agent
of NMFS prior to commencing fishing for the season in any fishery that
may result in the harvest of Atlantic tunas. Such persons must request
such inspection at least 24 hours before commencement of the first
fishing trip of the season. If NMFS does not inspect the vessel within
24 hours of such notification, the inspection requirement is waived. In
addition, at least 24 hours before commencement of offloading any BFT
after a fishing trip, such persons must request an inspection of the
vessel and catch by notifying NMFS. If, after notification by the
vessel, NMFS does not arrange to inspect the vessel and catch at
offloading, the inspection requirement is waived.
(vii) Trap. Pound net and fish weir.
(2) Billfish. (i) Persons may possess a blue marlin or white marlin
in or take a blue marlin or a white marlin from its management unit only
if it is harvested by rod and reel. Regardless of how taken, persons may
not possess a blue marlin or a white marlin in or take a blue marlin or
a white marlin from its management unit on board a vessel using or
having on board a pelagic longline.
(ii) Persons may possess or take a sailfish shoreward of the outer
boundary of the Atlantic EEZ only if it is harvested by rod and reel.
Regardless of how taken, persons may not possess or take a sailfish
shoreward of the outer boundary of the Atlantic EEZ on
[[Page 227]]
board a vessel using or having on board a pelagic longline.
(3) Sharks. (i) No person may possess a shark in the EEZ if the
shark was taken from its management unit by any gear other than
handgear, longline or gillnet.
(ii) No person may fish for sharks with a gillnet with a total
length of 2.5 km or more. No person may have on board a vessel a gillnet
with a total length of 2.5 km or more.
(iii) Provisions on gear deployment for the southeast U.S. shark
drift gillnet fishery to implement the Atlantic Large Whale Take
Reduction Plan are set forth in Sec. 229.32(f) of this title.
(iv) While fishing for Atlantic sharks with a gillnet, the gillnet
must remain attached to the vessel at one end.
(4) Swordfish. (i) No person may possess north Atlantic swordfish
taken from its management unit by any gear other than handgear or
longline, except that such swordfish taken incidentally while fishing
with a squid trawl may be retained, subject to restrictions specified in
Sec. 635.24(b)(2). No person may possess south Atlantic swordfish taken
from its management unit by any gear other than longline.
(ii) An Atlantic swordfish may not be retained or possessed on board
a vessel with a gillnet. A swordfish will be deemed to have been
harvested by gillnet when it is onboard, or offloaded from a vessel
using or having on board a gillnet.
(iii) A person aboard a vessel issued a directed handgear ILAP or
LAP for Atlantic swordfish may not fish for swordfish with any gear
other than handgear. A swordfish will be deemed to have been harvested
by longline when it is on board, or offloaded from a vessel using or
having on board longline gear.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37704, July 13, 1999; 65
FR 47238, Aug. 1, 2000]
Sec. 635.22 Recreational retention limits.
(a) General. 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. 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 a vessel permit under Sec. 635.4 for
Atlantic sharks. The recreational retention limit for yellowfin tuna
applies to a person who fishes in any manner, except to a person aboard
a vessel who has been issued a vessel permit under Sec. 635.4 for
Atlantic tunas in any category other than Angling or Charter/Headboat.
(b) Billfish. No longbill spearfish from the management unit may be
possessed shoreward of the outer boundary of the EEZ.
(c) Sharks. One shark from either the large coastal, small coastal
or pelagic group may be retained per vessel per trip, subject to the
size limits described in Sec. 635.20(d), and, in addition, one Atlantic
sharpnose shark may be retained per person per trip. Regardless of the
length of a trip, no more than one Atlantic sharpnose shark per person
may be possessed on board a vessel. No prohibited sharks listed in table
1(d) of appendix A to this part may be retained.
(d) Yellowfin tuna. Three yellowfin tunas per person per day may be
retained. Regardless of the length of a trip, no more than three
yellowfin tuna per person may be possessed on board a vessel.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37704, July 13, 1999]
Sec. 635.23 Retention limits for BFT.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
(a) General category. (1) No person aboard a vessel that has a
General category Atlantic Tunas permit may possess, retain, land, or
sell a BFT in the school, large school, or small medium size class.
(2) On an RFD, no person aboard a vessel that has been issued a
General
[[Page 228]]
category Atlantic Tunas permit may fish for, possess, retain, land, or
sell a BFT of any size class, and tag-and-release fishing for BFT under
Sec. 635.26 is not authorized from such vessel. On days other than RFDs,
and when the General category is open, one large medium or giant BFT may
be caught and landed from such vessel per day. NMFS will annually
publish a schedule of RFDs in the Federal Register.
(3) Regardless of the length of a trip, no more than a single day's
retention limit of large medium or giant BFT may be possessed or
retained aboard a vessel that has a General category Atlantic Tunas
permit. On days other than RFDs, when the General category is open, no
person aboard such vessel may continue to fish, and the vessel must
immediately proceed to port once the applicable limit for large medium
or giant BFT is retained.
(4) To provide for maximum utilization of the quota for BFT, NMFS
may increase or decrease the daily retention limit of large medium and
giant BFT over a range from zero (on RFDs) to a maximum of three per
vessel. Such increase or decrease will be based on a review of dealer
reports, daily landing trends, availability of the species on the
fishing grounds, and any other relevant factors. NMFS will adjust the
daily retention limit specified in paragraph (a)(2) of this section by
filing with the Office of the Federal Register for publication
notification of the adjustment. Such adjustment will not be effective
until at least 3 calendar days after notification is filed with the
Office of the Federal Register for publication, except that previously
designated RFDs may be waived effective upon closure of the General
category fishery so that persons aboard vessels permitted in the General
category may conduct tag-and-release fishing for BFT under Sec. 635.26.
(b) Angling category. BFT may be retained and landed under the daily
limits and quotas applicable to the Angling category by persons aboard
vessels permitted in Atlantic tunas Angling category as follows:
(1) Large medium and giant BFT. (i) No large medium or giant BFT may
be retained, possessed, landed, or sold in the Gulf of Mexico, except
one per vessel per year may be landed if caught incidentally to fishing
for other species.
(ii) One per vessel per year may be retained, possessed, and landed
outside the Gulf of Mexico.
(iii) When a large medium or giant BFT has been caught and retained
under this paragraph (b)(1), no person aboard the vessel may continue to
fish, the vessel must immediately proceed to port, and no such BFT may
be sold or transferred to any person for a commercial purpose.
(2) School, large school, or small medium BFT. One per vessel per
day may be retained, possessed, or landed. Regardless of the length of a
trip, no more than a single day's allowable catch of school, large
school, or small medium BFT may be possessed or retained.
(3) Changes to retention limits. To provide for maximum utilization
of the quota for BFT spread over the longest period of time, NMFS may
increase or decrease the retention limit for any size class BFT or
change a vessel trip limit to an angler limit and vice versa. Such
increase or decrease will be based on a review of daily landing trends,
availability of the species on the fishing grounds, and any other
relevant factors. NMFS will adjust the daily retention limit specified
in paragraph (b)(2) of this section by filing with the Office of the
Federal Register for publication notification of the adjustment. Such
adjustment will not be effective until at least 3 calendar days after
notification is filed with the Office of the Federal Register for
publication.
(c) HMS or Tunas Charter/Headboat. Persons aboard a vessels
permitted in Atlantic HMS or Tunas Charter/Headboat category may retain
and land BFT under the daily limits and quotas applicable to the Angling
category or the General category as follows:
(1) When fishing in the Gulf of Mexico, the restrictions applicable
to the Angling category specified in paragraph (b)(1) of this section
apply.
(2) When fishing other than in the Gulf of Mexico when the fishery
for the General category is closed, the restrictions applicable to the
Angling category specified in paragraphs (b)(1) through (b)(3) of this
section apply.
[[Page 229]]
(3) When fishing other than in the Gulf of Mexico and when the
fishery under the General category has not been closed under
Sec. 635.28, a person aboard a vessel that has an HMS or Atlantic Tunas
Charter/Headboat permit may fish under either the retention limits
applicable to the General category specified in paragraphs (a)(2) and
(a)(3) of this section or the retention limits applicable to the Angling
category specified in paragraphs (b)(2) and (b)(3) of this section. The
size category of the first BFT retained will determine the fishing
category applicable to the vessel that day.
(d) Harpoon category. Persons aboard a vessel permitted in the
Atlantic Tunas Harpoon category may retain, possess, or land multiple
giant BFTs per day. An incidental catch of only one large medium BFT per
vessel per day may be retained, possessed, or landed.
(e) Purse Seine category. Persons aboard a vessel permitted in the
Atlantic Tunas Purse Seine category,
(1) May retain, possess, land, or sell large medium BFT in amounts
not exceeding 15 percent, by weight, of the giant BFT landed on that
trip, provided that the total amount of large medium BFT landed by that
vessel during the fishing year does not exceed 10 percent, by weight, of
the total amount of giant BFT allocated to that vessel for that fishing
year.
(2) May retain, possess or land BFT smaller than the large medium
size class that are taken incidentally when fishing for skipjack tuna or
yellowfin tuna in an amount not exceeding 1 percent, by weight, of the
skipjack tuna and yellowfin tuna landed on that trip. Landings of BFT
smaller than the large medium size class may not be sold and are counted
against the Purse Seine category BFT quota allocated to that vessel.
(f) Longline category. Persons aboard a vessel permitted in the
Atlantic Tunas Longline category may retain, possess, land, and sell
large medium and giant BFT taken incidentally in fishing for other
species. Limits on such retention/possession/landing/sale are as
follows:
(1) For landings south of 34 deg.00' N. lat., one large medium or
giant BFT per vessel per trip may be landed, provided that, for the
months of January through April, at least 1,500 lb (680 kg) and for the
months of May through December, at least 3,500 lb (1,588 kg), either dw
or round weight, of species other than BFT are legally caught, retained,
and offloaded from the same trip and are recorded on the dealer weighout
slip as sold.
(2) For landings north of 34 deg.00' N. lat., landings per vessel
per trip of large medium and giant BFT may not exceed 2 percent by
weight, either dw or round weight, of all other fish which are legally
caught, retained, and offloaded from the same trip and which are
recorded on the dealer weighout slip as sold.
(g) Trap category. Persons aboard a vessel permitted in the Atlantic
Tunas Trap category may retain, possess, land, and sell each fishing
year only one large medium or giant BFT that is taken incidentally while
fishing for other species with a pound net or fish weir. No other
Atlantic tunas caught in a pound net or fish weir may be retained.
[64 FR 29135, May 28, 1999, as amended at 65 FR 42887, July 12, 2000]
Sec. 635.24 Commercial retention limits for sharks and swordfish.
The retention limits in this section are subject to the quotas and
closure provisions in Secs. 635.27 and 635.28.
(a) Sharks. (1) Persons who own or operate a vessel that has been
issued a directed ILAP or LAP for shark may retain, possess or land no
more than 4,000 lb (1,814 kg), dw, of LCS per trip.
(2) Persons who own or operate a vessel that has been issued an
incidental catch ILAP or LAP for sharks may retain, possess or land no
more than 5 LCS and 16 SCS and pelagic sharks, combined, per trip.
(b) Swordfish. (1) Persons aboard a vessel that has been issued an
incidental ILAP or LAP for swordfish may retain, possess, or land no
more than two swordfish per trip in or from the Atlantic Ocean north of
5 deg. N. lat.
(2) Persons aboard a vessel in the squid trawl fishery that has been
issued an incidental ILAP or LAP for swordfish may retain, possess, or
land no more than five swordfish per trip in
[[Page 230]]
or from the Atlantic Ocean north of 5 deg. N. lat. A vessel is
considered to be in the squid trawl fishery when it has no commercial
fishing gear other than trawls on board and when squid constitute not
less than 75 percent by weight of the total fish on board or offloaded
from the vessel.
Sec. 635.25 [Reserved]
Sec. 635.26 Catch and release.
(a) BFT. (1) Notwithstanding the other provisions of this part, a
person aboard a vessel issued a permit under this part, other than a
person aboard a vessel permitted in the General category on a designated
RFD, may fish with rod and reel or handline gear for BFT under a tag and
release program, provided the person tags all BFT so caught, regardless
of whether previously tagged, with conventional tags issued or approved
by NMFS, returns such fish to the sea immediately after tagging with a
minimum of injury, and reports the tagging and, if the BFT was
previously tagged, the information on the previous tag. If NMFS-issued
or NMFS-approved conventional tags are not on board a vessel, all
persons aboard that vessel are ineligible to fish under the tag-and-
release program.
(2) Persons may obtain NMFS-issued conventional tags, reporting
cards, and detailed instructions for their use from the NMFS Cooperative
Tagging Center. Persons may use a conventional tag obtained from a
source other than NMFS to tag BFT, provided the use of such tags is
registered each year with the Cooperative Tagging Center and the NMFS
program manager has approved the use of a conventional tag from that
source. An angler using an alternative source of tags wishing to tag BFT
may contact the NMFS Cooperative Tagging Center at the Southeast Fishery
Science Center.
(3) An angler registering for the HMS tagging program is required to
provide his or her name, address, phone number and, if applicable, the
identity of the alternate source of tags.
(b) Billfish. NMFS is encouraging further catch and release of
Atlantic billfish by establishing a recreational catch-and-release
fishery management program, consistent with the guidance of
Sec. 600.350(c).
(c) Sharks. Notwithstanding the other provisions of this part, a
person may fish for white sharks (Carcharodon carcharias) with rod and
reel, provided the person releases such fish to the sea immediately with
a minimum of injury, and that such fish may not be removed from the
water.
[64 FR 29135, May 28, 1999, as amended at 65 FR 42887, July 12, 2000]
Sec. 635.27 Quotas.
(a) BFT. Consistent with ICCAT recommendations, NMFS will subtract
any allowance for dead discards from the fishing year's total U.S. quota
for BFT that can be caught and allocate the remainder to be retained,
possessed, or landed by persons and vessels subject to U.S.
jurisdiction. The total landing quota will be divided among the General,
Angling, Harpoon, Purse Seine, Longline, and Trap categories. Consistent
with these allocations and other applicable restrictions of this part,
BFT may be taken by persons aboard vessels issued Atlantic Tunas permits
or HMS Charter/Headboat permits. Allocations of the BFT landings quota
will be made according to the following percentages: General - 47.1
percent; Angling - 19.7 percent, which includes the school BFT held in
reserve as described under paragraph (a)(7)(ii) of this section; Harpoon
- 3.9 percent; Purse Seine - 18.6 percent; Longline - 8.1 percent; and
Trap - 0.1 percent. The remaining 2.5 percent of the BFT landings quota
will be held in reserve for inseason adjustments, to compensate for
overharvest in any category other than the Angling category school BFT
subquota or for fishery independent research. NMFS may apportion a
landings quota allocated to any category to specified fishing periods or
to geographic areas. BFT landings quotas are specified in whole weight.
(1) General category landings quota. Prior to each fishing year,
NMFS will set the General category effort control schedule, including
time-period subquotas and restricted-fishing days, through proposed and
final specifications published in the Federal Register.
[[Page 231]]
(i) Catches from vessels for which General category Atlantic Tunas
permits have been issued and certain catches from vessels for which an
HMS or Atlantic tunas Charter/Headboat permit has been issued are
counted against the General category landings quota. See
Sec. 635.23(c)(3) regarding landings by vessels with an HMS or Atlantic
tunas Charter/Headboat permit that are counted against the General
category landings quota. The total amount of large medium and giant BFT
that may be caught, retained, possessed, landed, or sold under the
General category landings quota is 47.1 percent of the overall U.S. BFT
landings quota, less 10 mt which is set aside for an area comprising the
waters south and west of a straight line originating at a point on the
southern shore of Long Island at 72 deg. 27' W. long (Shinnecock Inlet)
and running SSE 150 deg. true, and north of 38 deg.47' N. lat. as
specified in Sec. 635.27(a)(1)(iii). This 47.1 percent, less the 10 mt
set aside as specified in Sec. 635.27(a)(1)(iii), is apportioned as
follows:
(A) June 1 through August 31--60 percent;
(B) September 1 through September 30--30 percent; and
(C) October 1 through December 31--10 percent.
(ii) NMFS will adjust each period's apportionment based on
overharvest or underharvest in the prior period.
(iii) When the coastwide General category fishery has been closed in
any quota period under Sec. 637.28(a)(1), NMFS may publish notification
in the Federal Register to make available all or part of the 10 mt
landings quota set aside for an area comprising the waters south and
west of a straight line originating at a point on the southern shore of
Long Island at 72 deg.27' W. long. (Shinnecock Inlet) and running SSE
150 true, and north of 38 deg.47' N. lat. The daily catch limit for the
set-aside area will be one large medium or giant BFT per vessel per day.
Upon the effective date of the set-aside fishery, fishing for,
retaining, or landing large medium or giant BFT is authorized only
within the set-aside area. Any portion of the set-aside amount not
harvested prior to the reopening of the coastwide General category
fishery in the subsequent quota period established under paragraph
(a)(1)(i) of this section may be carried over for the purpose of
renewing the set-aside fishery at a later date.
(2) Angling category landings quota. The total amount of BFT that
may be caught, retained, possessed, and landed by anglers aboard vessels
for which an Angling category Atlantic Tunas permit or an HMS or
Atlantic Tunas Charter/Headboat permit has been issued is 19.7 percent
of the overall annual U.S. BFT landings quota. No more than 2.3 percent
of the annual Angling category landings quota may be large medium or
giant BFT and, over each 4-consecutive-year period, no more than 8
percent of the overall U.S. BFT landings quota may be school BFT. The
Angling category landings quota includes the amount of school BFT held
in reserve as specified under paragraph (a)(7)(ii) of this section. The
size class subquotas for BFT are further subdivided as follows:
(i) Under paragraph (a)(7)(ii) of this section, 47.2 percent of the
school BFT Angling category landings quota, minus the school BFT quota
held in reserve, may be caught, retained, possessed, or landed south of
38 deg. 47' N. lat.
(ii) an amount equal to 47.2 percent of the large school/small
medium BFT Angling category quota, may be caught, retained, possessed,
or landed south of 38 deg. 47' N. lat.
(iii) an amount equal to 66.7 percent of the large medium and giant
BFT Angling category quota may be caught, retained, possessed, or landed
south of 38 deg. 47' N. lat.
(3) Longline category quota. The total amount of large medium and
giant BFT that may be caught incidentally and retained, possessed, or
landed by vessels for which Longline category Atlantic tunas permits
have been issued is 8.1 percent of the overall U.S. BFT quota. No more
than 78.9 percent of the Longline category quota may be caught,
retained, possessed, or landed in the area south of 34 deg.00' N. lat.
(4) Purse Seine category quota. (i) The total amount of large medium
and giant BFT that may be caught, retained, possessed, or landed by
vessels for which Purse Seine category Atlantic Tunas permits have been
issued is 18.6 percent of the overall U.S. BFT
[[Page 232]]
landings quota. The directed purse seine fishery for BFT commences on
August 15 each year.
(ii) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued must apply in writing to NMFS at an address
designated by NMFS, for an allocation of BFT from the Purse Seine
category quota. The application must be postmarked no later than April
15 for an allocation of the quota that becomes available on June 1.
(iii) On or about May 1, NMFS will make equal allocations of the
available size classes of BFT among purse seine vessel permit holders so
requesting, adjusted as necessary to account for underharvest or
overharvest by each participating vessel or the vessel it replaces from
the previous fishing year, consistent with paragraph (a)(9)(i) of this
section. Such allocations are freely transferable, in whole or in part,
among vessels that have Purse Seine category Atlantic Tunas permits. Any
purse seine vessel permit holder intending to land bluefin tuna under an
allocation transferred from another purse seine vessel permit holder
must provide written notice of such intent to NMFS, at an address
designated by NMFS, 3 days before landing any such bluefin tuna. Such
notification must include the transfer date, amount (mt) transferred,
and the permit numbers of vessels involved in the transfer. Trip or
seasonal catch limits otherwise applicable under Sec. 635.23(e) are not
altered by transfers of bluefin tuna allocation. Purse seine vessel
permit holders who, through landing and/or transfer, have no remaining
bluefin tuna allocation may not use their permitted vessels in any
fishery in which Atlantic bluefin tuna might be caught, regardless of
whether retained.
(iv) An owner of a vessel for which a Purse Seine category Atlantic
Tunas permit has been issued may apply to NMFS to permanently
consolidate Purse Seine category vessel permits issued under Sec. 635.4.
Upon written approval of consolidation by NMFS, the Purse Seine Category
Atlantic Tunas Permit of a transferring vessel will be canceled, and the
receiving owner may apply for allocations of BFT commensurate with the
number of consolidated permits. An owner of a purse seine vessel whose
permit is canceled through consolidation may not use his or her vessel
in any purse seine fishery in which BFT might be caught.
(5) Harpoon category quota. The total amount of large medium and
giant BFT that may be caught, retained, possessed, landed, or sold by
vessels for which Harpoon category Atlantic Tunas permits have been
issued is 3.9 percent of the overall U.S. BFT quota.
(6) Trap category quota. The total amount of large medium and giant
BFT that may be caught, retained, possessed, or landed by vessels for
which Trap category Atlantic Tunas permits have been issued is 0.1
percent of the overall U.S. BFT quota.
(7) Reserve. (i) The total amount of BFT that is held in reserve for
inseason adjustments and fishery-independent research using quotas or
subquotas other than the Angling category school BFT subquota, is 2.5
percent of the overall U.S. BFT quota. Consistent with paragraph
(a)(7)(iii) of this section, NMFS may allocate any portion of this
reserve for inseason adjustments to any category quota in the fishery,
other than the Angling category school BFT subquota.
(ii) The total amount of school BFT that is held in reserve for
inseason adjustments and fishery independent research is 18.5 percent of
the total school BFT quota for the Angling category as described under
paragraph (a)(2) of this section, which is in addition to the amounts
specified in paragraph (a)(7)(i) of this section. Consistent with
paragraph (a)(7)(iii) of this section, NMFS may allocate any portion of
the school BFT held in reserve for inseason adjustments to the Angling
category.
(iii) NMFS will file with the Office of the Federal Register for
publication notification of any inseason adjustment. Before making any
such adjustment, NMFS will consider the following factors:
(A) The usefulness of information obtained from catches in the
particular category for biological sampling and monitoring of the status
of the stock.
(B) The catches of the particular category quota to date and the
likelihood
[[Page 233]]
of closure of that segment of the fishery if no allocation is made.
(C) The projected ability of the vessels fishing under the
particular category quota to harvest the additional amount of BFT before
the end of the fishing year.
(D) The estimated amounts by which quotas for other gear categories
of the fishery might be exceeded.
(E) Effects of the transfer on BFT rebuilding and overfishing.
(F) Effects of the transfer on accomplishing the objectives of the
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks.
(8) Inseason adjustments. Within a fishing year, NMFS may transfer
quotas among categories or, as appropriate, subcategories. If it is
determined, based on the factors in paragraphs (a)(7)(iii)(A) through
(a)(7)(iii)(F) of this section and the probability of exceeding the
total quota, that vessels fishing under any category or subcategory
quota are not likely to take that quota, NMFS may transfer inseason any
portion of the remaining quota of that fishing category to any other
fishing category or to the reserve as specified in paragraphs (a)(7)(i)
and (a)(7)(ii) of this section. NMFS will file with the Office of the
Federal Register for publication notification of any inseason
adjustment.
(9) Annual adjustments. (i) If NMFS determines, based on landings
statistics and other available information, that a BFT quota in any
category or, as appropriate, subcategory has been exceeded or has not
been reached, with the exception of the Purse Seine category, NMFS shall
subtract the overharvest from, or add the underharvest to, that quota
category for the following fishing year, provided that the total of the
adjusted category quotas and the Reserve is consistent with a
recommendation of ICCAT regarding country quotas, the take of school
BFT, and the allowance for dead discards. For the Purse Seine category,
if NMFS determines, based on landings statistics and other available
information, that a purse seine vessel's allocation, as adjusted, has
been exceeded or has not been reached, NMFS shall subtract the
overharvest from, or add the underharvest to, that vessel's allocation
for the following fishing year.
(ii) NMFS may allocate any quota remaining in the reserve at the end
of a fishing year to account for overharvest in any fishing category,
provided such allocation is consistent with the criteria specified in
paragraph (a)(7)(iii) of this section.
(iii) Regardless of the estimated landings in any year, NMFS may
adjust the annual school BFT quota to ensure that the average take of
school BFT over each 4-consecutive-year period beginning in the 1999
fishing year does not exceed 8 percent by weight of the total U.S. BFT
quota for that period.
(iv) If NMFS determines that the annual dead discard allowance has
been exceeded in one fishing year, NMFS shall subtract the amount in
excess of the allowance from the amount of BFT that can be landed in the
subsequent fishing year by those categories accounting for the dead
discards. If NMFS determines that the annual dead discard allowance has
not been reached, NMFS may add one-half of the remainder to the amount
of BFT that can be landed in the subsequent fishing year. Such amount
may be allocated to individual fishing categories or to the Reserve.
(v) NMFS will file with the Office of the Federal Register for
publication notification of the amount subtracted or added and the basis
for the quota reductions or increases made pursuant to paragraphs
(a)(9)(i) through (a)(9)(iv) of this section.
(b) Sharks--(1) Commercial quotas. The commercial quotas for shark
specified in paragraphs (b)(1)(i) through (b)(1)(iv) of this section
apply to sharks harvested from the management unit, regardless of where
harvested. Commercial quotas are specified for each of the management
groups of large coastal sharks, small coastal sharks, and pelagic
sharks.
(i) Large coastal sharks. The annual commercial quota for large
coastal sharks is 816 mt dw, apportioned between ridgeback and non-
ridgeback shark and divided between two equal semiannual fishing
seasons, January 1 through June 30, and July 1 through December 31. The
length of each season
[[Page 234]]
will be determined based on the projected catch rates, available quota,
and other relevant factors. NMFS will file with the Office of the
Federal Register for publication notification of each season's length at
least 30 days prior to the beginning of the season. The quotas for each
fishing season (unless otherwise specified in the Federal Register as
provided in paragraph (b)(1)(iv) of this section are as follows:
(A) Ridgeback shark--310 mt dw.
(B) Non-ridgeback shark-98 mt dw.
(ii) Small coastal sharks. The annual commercial quota for small
coastal shark is 359 mt dw, (unless otherwise specified in the Federal
Register as provided in paragraph (b)(1)(iv) of this section) divided
between two equal semiannual seasons, January 1 through June 30, and
July 1 through December 31. The quota for each semiannual season is
179.5 mt, dw.
(iii) Pelagic sharks. The annual commercial quotas for pelagic
sharks are 92 mt dw for porbeagle sharks and 488 mt dw for all other
pelagic sharks (unless otherwise specified in the Federal Register as
provided in paragraph (b)(1)(iv) of this section). These quotas are
divided between two equal semiannual periods, January 1 through June 30,
and July 1 through December 31. The quotas for each semiannual period
are as follows:
(A) Porbeagle sharks--46 mt dw.
(B) Pelagic sharks, other than porbeagle sharks--244 mt dw.
(C) Blue sharks--136.5 mt dw.
(iv) Annual adjustments. (A) NMFS will adjust the next year's
semiannual quotas for large coastal, small coastal, and pelagic sharks
to reflect actual landings during any semiannual period. For example, a
commercial quota underage or overage in the season that begins January 1
will result in an equivalent increase or decrease in the following
year's quota for the season that begins January 1, provided that the
annual quotas are not exceeded. NMFS will file with the Office of the
Federal Register for publication notification of any adjustment at least
30 days prior to the start of the next fishing season.
(B) NMFS will reduce the annual commercial quota for pelagic sharks
by the amount that the blue shark quota is exceeded at least 30 days
prior to the start of the next fishing season.
(C) Sharks discarded dead are counted against the applicable
directed fishery quota. Sharks taken and landed from state waters are
counted against the applicable directed fishery quota.
(2) Public display quota. The annual quota for persons who collect
sharks from any of the management groups under an EFP is 60 mt whole
weight (43 mt dw). All sharks collected under the authority of an EFP,
subject to restrictions at Sec. 635.32, will be counted against this
quota.
(c) Swordfish. (1) Consistent with ICCAT recommendations, the
fishing year's total amount of swordfish that may be caught, retained,
possessed, or landed by persons and vessels subject to U.S. jurisdiction
is divided into quotas for the North Atlantic swordfish stock and the
South Atlantic swordfish stock. The quota for the North Atlantic
swordfish stock is further divided into semi-annual directed fishery
quotas and an incidental catch quota for fishermen targeting other
species. A swordfish from the North Atlantic swordfish stock caught
prior to the directed fishery closure by a vessel for which a directed
fishery permit or a handgear permit for swordfish has been issued is
counted against the directed fishery quota. A swordfish from the North
Atlantic swordfish stock landed by a vessel for which an incidental
catch permit for swordfish has been issued, landed consequent to
recreational fishing, or caught after the effective date of a closure of
the directed fishery from a vessel for which a directed fishery permit
or a handgear permit for swordfish has been issued is counted against
the incidental catch quota. The entire quota for the South Atlantic
swordfish stock is reserved for longline vessels for which a directed
fishery permit for swordfish has been issued; retention of swordfish
caught incidental to other fishing activities is prohibited in the
Atlantic Ocean south of 5 deg. N. lat.
(i) North Atlantic swordfish stock. (A) The annual directed fishery
quota for the North Atlantic swordfish stock is 2033.2 mt dw, divided
into two equal semiannual quotas of 1016.6 mt dw, one for June 1 through
November 30, and
[[Page 235]]
the other for December 1 through May 31 of the following year.
(B) The annual incidental catch quota for the North Atlantic
swordfish stock is 300 mt dw.
(ii) South Atlantic swordfish stock. The annual directed fishery
quota for the South Atlantic swordfish stock is 289 mt dw. Incidental
harvest of swordfish is prohibited in the Atlantic Ocean south of 5 deg.
N. lat.
(2) Inseason adjustments. (i) NMFS may adjust the December 1 through
May 31 semiannual directed fishery quota to reflect actual catches
during the June 1 through November 30 semiannual period, provided that
the fishing year's directed fishery quota is not exceeded.
(ii) If NMFS determines that the annual incidental catch quota will
not be taken before the end of the fishing year, the excess quota may be
allocated to the directed fishery quota.
(iii) If NMFS determines that it is necessary to close the directed
swordfish fishery prior to the scheduled end of a semi-annual fishing
season, any estimated overharvest or underharvest of the directed
fishery quota for that semi-annual season will be used to adjust the
annual incidental catch quota accordingly.
(iv) NMFS will file with the Office of the Federal Register for
publication notification of any inseason swordfish quota adjustment and
its apportionment made under this paragraph (c)(2) of this section.
(3) Annual adjustments. (i) Except for the carryover provisions of
paragraph (c)(3)(ii) of this section, NMFS will file with the Office of
the Federal Register for publication notification of any adjustment to
the annual quota necessary to meet the objectives of the Fishery
Management Plan for Atlantic Tuna, Swordfish and Sharks. NMFS will
provide at least 30 days opportunity for public comment.
(ii) If consistent with applicable ICCAT recommendations, total
landings above or below the specific North Atlantic or South Atlantic
swordfish annual quota shall be subtracted from, or added to, the
following year's quota for that area. Any adjustments to the 12-month
directed fishery quota will be apportioned equally between the two
semiannual fishing seasons. NMFS will file with the Office of the
Federal Register for publication notification of any adjustment or
apportionment made under this paragraph (c)(3)(ii).
[64 FR 29135, May 28, 1999, as amended at 64 FR 58796, Nov. 1, 1999; 65
FR 42887, July 12, 2000]
Sec. 635.28 Closures.
(a) BFT. (1) When a BFT quota, other than the Purse Seine category
quota specified in Sec. 635.27(a)(4), is reached, or is projected to be
reached, NMFS will file with the Office of the Federal Register for
publication notification of closure. On and after the effective date and
time of such notification, for the remainder of the fishing year or for
a specified period as indicated in the notice, fishing for, retaining,
possessing, or landing BFT under that quota is prohibited until the
opening of the subsequent quota period or until such date as specified
in the notice.
(2) From August 15 through December 31, the owner or operator of a
vessel that has been allocated a portion of the Purse Seine category
quota under Sec. 635.27(a)(4) may fish for BFT. Such vessel may be used
to fish for yellowfin, bigeye, albacore, or skipjack tuna at any time,
however, landings of BFT taken incidental to fisheries targeting other
Atlantic tunas or in any fishery in which BFT might be caught will be
deducted from the individual vessel's quota for the following BFT
fishing season (i.e., August 15 through December 31). Upon reaching its
individual vessel allocation of BFT, the vessel may not participate in a
directed purse seine fishery for Atlantic tunas or in any fishery in
which BFT might be caught for the remainder of the fishing year.
(3) If NMFS determines that variations in seasonal distribution,
abundance, or migration patterns of BFT, or the catch rate in one area,
precludes anglers in another area from a reasonable opportunity to
harvest a portion of the Angling category quota, NMFS may close all or
part of the fishery under that category and may reopen it at a later
date if NMFS determines that BFT have migrated into the other area. In
determining the need for any
[[Page 236]]
such interim closure or area closure, NMFS will consider:
(i) The usefulness of information obtained from catches of a
particular geographic area of the fishery for biological sampling and
for monitoring the status of the stock;
(ii) The current year catches from the particular geographic area
relative to the catches recorded for that area during the preceding 4
years;
(iii) The catches from the particular geographic area to date
relative to the entire category and the likelihood of closure of that
entire category of the fishery if no interim closure or area closure is
effected; and
(iv) The projected ability of the entire category to harvest the
remaining amount of BFT before the anticipated end of the fishing
season.
(b) Sharks. (1) The commercial fishery for large coastal sharks will
remain open for fixed semiannual fishing seasons, as specified at
Sec. 635.27(b)(1)(i). From the effective date and time of a season
closure until additional quota becomes available, the fishery for large
coastal sharks is closed, and sharks of that species group may not be
retained on board a fishing vessel issued a commercial permit pursuant
to Sec. 635.4.
(2) When a semiannual quota for small coastal sharks or pelagic
sharks specified in Sec. 635.27(b)(1)(ii) and (b)(1)(iii) is reached, or
is projected to be reached, NMFS will file with the Office of the
Federal Register for publication a notice of closure at least 14 days
before the effective date. From the effective date and time of the
closure until additional quota becomes available, the fishery for the
appropriate shark species group is closed, and sharks of that species
group may not be retained on board a fishing vessel issued a commercial
permit pursuant to Sec. 635.4.
(3) When the fishery for a shark species group is closed, a fishing
vessel issued a shark ILAP or LAP pursuant to Sec. 635.4 may not possess
or sell a shark of that species group, and a permitted shark dealer may
not purchase or receive a shark of that species group from a vessel
issued a shark ILAP or 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.
(c) Swordfish--(1) Directed fishery closure. When the annual or
semiannual directed fishery quota specified in Sec. 635.27(c)(1)(i) or
(ii) is reached, or is projected to be reached, NMFS will file with the
Office of the Federal Register for publication notification of closure
at least 14 days before the effective date. From the effective date and
time of the closure until additional directed fishery quota becomes
available, the directed fishery for the appropriate stock is closed and
the following catch limits apply:
(i) When the directed fishery for the North Atlantic swordfish stock
is closed,
(A) No more than 15 swordfish per trip may be possessed in or from
the Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic
coastal state on a vessel using or having on board a longline. However,
legally taken swordfish from the South Atlantic swordfish stock may be
possessed in the Atlantic Ocean north of 5 deg. N. lat. or landed in an
Atlantic coastal state on a vessel with a longline provided the
harvesting vessel does no fishing on that trip in the Atlantic Ocean
north of 5 deg. N. lat. and reports positions with a vessel monitoring
system, as specified in Sec. 635.69. NMFS may adjust the incidental
catch retention limit by filing with the Office of the Federal Register
for publication notification of the change at least 14 days before the
effective date. Changes in the incidental catch limits will be based
upon the length of the directed fishery closure and the estimated rate
of catch by vessels fishing under the incidental catch quota.
(B) No more than 2 swordfish per trip may be possessed in or from
the Atlantic Ocean north of 5 deg. N. lat. or landed in an Atlantic
coastal state on a vessel that has been issued a handgear permit under
Sec. 635.4(f)(1) provided that such swordfish were not taken with a
harpoon.
(ii) When the directed fishery for the South Atlantic swordfish
stock is closed, swordfish from that stock taken incidental to fishing
for other species may not be retained.
[[Page 237]]
(2) Incidental catch closure. When the annual incidental catch quota
specified in Sec. 635.27(c)(1)(i) is reached, or is projected to be
reached, NMFS will file with the Office of the Federal Register for
publication notification of closure. From the effective date and time of
such notification until an additional incidental catch quota becomes
available, no swordfish may be possessed in or from the Atlantic Ocean
north of 5 deg. N. lat. or landed in an Atlantic coastal state, and a
swordfish in or from the Atlantic Ocean north of 5 deg. N. lat. may not
be sold. However, legally taken swordfish from the South Atlantic
swordfish stock may be possessed in the Atlantic Ocean north of 5 deg.
N. lat. or landed in an Atlantic coastal state on a vessel with a
longline, provided the harvesting vessel does not fish on that trip in
the Atlantic Ocean north of 5 deg. N. lat. and reports positions with a
vessel monitoring system, as specified in Sec. 635.69.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37705, July 13, 1999]
Sec. 635.29 Transfer at sea.
(a) Persons may not transfer an Atlantic tuna, blue marlin, white
marlin, or swordfish at sea in the Atlantic Ocean, regardless of where
the fish was harvested. However, an owner or operator of a vessel for
which a Purse Seine category Atlantic Tunas permit has been issued under
Sec. 635.4 may transfer large medium and giant BFT at sea from the net
of the catching vessel to another vessel for which a Purse Seine
category Atlantic Tunas permit has been issued, provided the amount
transferred does not cause the receiving vessel to exceed its currently
authorized vessel allocation, including incidental catch limits.
(b) Persons may not transfer a shark or a sailfish at sea shoreward
of the outer boundary of the EEZ, regardless of where the shark was
harvested, and persons may not transfer at sea a shark or a sailfish
taken shoreward of the outer boundary of the EEZ, regardless of where
the transfer takes place.
Sec. 635.30 Possession at sea and landing.
(a) Atlantic tunas. Persons that own or operate a fishing vessel
that possesses an Atlantic tuna in the Atlantic Ocean or that lands an
Atlantic tuna in an Atlantic coastal port must maintain such Atlantic
tuna through offloading either in round form or eviscerated with the
head and fins removed, provided one pectoral fin and the tail remain
attached.
(b) Billfish. Any person that possesses a blue marlin or a white
marlin taken from its management unit or a sailfish taken shoreward of
the outer boundary of the EEZ or lands a blue marlin or a white marlin
in an Atlantic coastal port must maintain such billfish with its head,
fins, and bill intact through offloading. Persons may eviscerate such
billfish, but it must otherwise be maintained whole.
(c) Shark. (1) No person shall fin any shark, i.e., remove only the
fins and return the remainder of the shark to the sea, shoreward of the
outer boundary of the EEZ and on board a vessel for which a commercial
vessel permit for shark has been issued. No person shall possess a shark
fin on board a fishing vessel after the vessel's first point of landing.
No person shall possess or offload wet shark fins in a quantity that
exceeds 5 percent of the weight of the shark carcasses. The prohibition
on finning applies to all species of sharks in the management unit. For
a list of species in the management unit, refer to tables 1 and 2 of
appendix A to this part.
(2) Persons that own or operate a vessel that has been issued a
commercial permit for shark may not fillet a shark at sea. Persons may
eviscerate and remove the head and fins, but must retain the fins with
the dressed carcasses. While on board and when offloaded, the wet shark
fins may not exceed 5 percent of the weight of the shark carcasses.
(3) Persons that own or operate a vessel that has been issued a
commercial permit that lands shark in an Atlantic coastal port must have
all fins weighed in conjunction with the weighing of the carcasses at
the vessel's first point of landing. Such weights must be recorded on
the weighout slips specified in Sec. 635.5(a)(2). Persons may not
possess a shark fin on board a fishing vessel after the vessel's first
point of landing. The wet fins may not exceed 5 percent of the weight of
the carcasses.
[[Page 238]]
(4) Persons aboard a vessel that does not have a commercial permit
for shark must maintain a shark in or from the EEZ intact through
landing--the head, tail, or fins may not be removed. The shark may be
bled.
(d) Swordfish. Persons that own or operate a fishing vessel that
possesses a swordfish in the Atlantic Ocean or lands a swordfish in an
Atlantic coastal port must maintain such swordfish in round or dressed
form through off-loading.
Sec. 635.31 Restrictions on sale and purchase.
(a) Atlantic tunas. (1) Persons that own or operate a vessel that
possesses an Atlantic tuna may sell such Atlantic tuna only if that
vessel has a valid HMS or Atlantic Tunas Charter/Headboat permit, or a
General, Harpoon, Longline, Purse Seine, or Trap category permit for
Atlantic tunas issued under this part. Persons may not sell a BFT
smaller than the large medium size class. However, a large medium or
giant BFT taken by a person on a vessel with an HMS or Atlantic Tunas
Charter/Headboat permit fishing in the Gulf of Mexico at any time, or
fishing outside the Gulf of Mexico when the fishery under the General
category has been closed, may not be sold (see Sec. 635.23(c)). Persons
may sell Atlantic tunas only to a dealer that has a valid permit for
purchasing Atlantic tunas issued under this part.
(2) Dealers may purchase Atlantic tunas only from a vessel that has
a valid commercial permit for Atlantic tunas issued under this part in
the appropriate category.
(3) Dealers or seafood processors may not purchase or sell a BFT
smaller than the large medium size class unless it is lawfully imported
and is accompanied by a BSD, as specified in Sec. 635.42(a).
(4) A BFT in the possession of a dealer or seafood processor is
deemed to be from the Atlantic Ocean. However, a BFT will not be deemed
to be from the Atlantic Ocean if--
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a BSD, as specified in Sec. 635.42(a).
(b) Billfish. (1) Persons may not sell or purchase a billfish taken
from its management unit.
(2) A billfish or a closely related species, namely, black marlin,
Makaira indica, striped marlin, Tetrapturus audax, or shortbill
spearfish, Tetrapturus angustirostris, or a part thereof, in the
possession of a dealer or seafood processor is considered, for purposes
of this part, to be a billfish from the Atlantic Ocean management unit.
However, a billfish or a closely related species will not be considered
to be from the Atlantic Ocean management unit if-
(i) It was landed in a Pacific state and remains in the state of
landing, or
(ii) It is accompanied by a Billfish Certificate of Eligibility that
documents that it was harvested from other than the Atlantic Ocean
management unit.
(c) Shark. (1) Persons that own or operate a vessel that possesses a
shark from the management unit may sell such shark only if the vessel
has a valid commercial permit for shark issued under this part. Persons
may possess and sell a shark only when the fishery for that species
group has not been closed, as specified in Sec. 635.28(b)(3).
(2) Persons that own or operate a vessel for which a valid
commercial shark permit has been issued and on which a shark from the
management unit is possessed, may sell such shark only to a dealer that
has a valid permit for shark issued under this part.
(3) Persons that own or operate a vessel for which a valid
commercial shark permit has been issued may not sell fins from a shark
harvested from the management unit, or harvested in the Atlantic Ocean
by a vessel for which a commercial permit for shark has been issued,
that are disproportionate to the weight of shark carcasses landed (the
wet fins may not exceed 5 percent of the weight of the carcasses).
(4) Only dealers that have a valid permit for shark may purchase a
shark from the owner or operator of a fishing vessel. Dealers may
purchase a shark only from an owner or operator of a vessel who has a
valid commercial permit for shark issued under this part, except that
dealers may purchase a shark from an owner or operator of a
[[Page 239]]
vessel that does not have a commercial permit for shark if that vessel
fishes exclusively in state waters. Dealers may purchase a shark from an
owner or operator of fishing vessel that has a permit issued under this
part only when the fishery for that species group has not been closed,
as specified in Sec. 635.28(b)(3).
(5) Dealers may not purchase from an owner or operator of a fishing
vessel shark fins that are disproportionate to the weight of shark
carcasses landed (the wet fins may not exceed 5 percent of the weight of
the carcasses).
(d) Swordfish. (1) Persons that own or operate a vessel on which a
swordfish in or from the Atlantic Ocean is possessed may sell such
swordfish only if the vessel has a valid commercial permit for swordfish
issued under this part. Persons may sell such swordfish only to a dealer
who has a valid permit for swordfish issued under this part.
(2) Dealers may purchase a swordfish harvested from the Atlantic
Ocean only from an owner or operator of a fishing vessel that has a
valid commercial permit for swordfish issued under this part.
Sec. 635.32 Specifically authorized activities.
(a) General. Consistent with the provisions of Sec. 600.745 of this
chapter, except as indicated in this section, NMFS may authorize for the
conduct of scientific research or the acquisition of information and
data, for the enhancement of safety at sea, for the purpose of
collecting animals for public education or display, or for investigating
the reduction of bycatch, economic discards or regulatory discards,
activities otherwise prohibited by the regulations contained in this
part. Activities subject to the provisions of this section include, but
are not limited to, scientific research resulting in, or likely to
result in, the take, harvest or incidental mortality of Atlantic HMS,
exempted fishing and exempted educational activities, or programs under
which regulated species retained in contravention to otherwise
applicable regulations may be donated through approved food bank
networks. Such activities must be authorized in writing and are subject
to all conditions specified in any letter of acknowledgment, exempted
fishing permit or scientific research permit issued in response to
requests for authorization under this section. For the purposes of all
regulated species covered under this part, NMFS has the sole authority
to issue permits, authorizations, and acknowledgments. If a regulated
species landed or retained under the authority of this section is
subject to a quota, the fish shall be counted against the quota category
as specified in the written authorization.
(b) Scientific research activities. For the purposes of all species
covered under this part regulated under the authority of ATCA, the
provisions for research plans under Sec. 600.745(a) and reports under
Sec. 600.745(c)(1) of this chapter are mandatory. In such cases of
authorized scientific research activities, NMFS shall issue scientific
research permits. For scientific research activities involving the
capture of Atlantic sharks, research plans and reports are requested;
letters of acknowledgment shall be issued by NMFS as indicated under
Sec. 600.745(a) of this chapter.
(c) Exempted fishing permits. (1) For activities consistent with the
purposes of this section and Sec. 600.745(b)(1) of this chapter, other
than scientific research conducted from a scientific research vessel,
NMFS may issue exempted fishing permits. Application procedures shall be
as indicated under Sec. 600.745(b)(2) of this chapter, except that NMFS
may consolidate requests for the purposes of obtaining public comment.
In such cases, NMFS may file with the Office of the Federal Register for
publication notification on an annual or, as necessary, more frequent
basis to report on previously authorized exempted fishing activities and
to solicit public comment on anticipated exempted fishing requests.
(2) Notwithstanding the provisions of Sec. 600.745 of this chapter
and other provisions of this part, a valid shark EFP is required to fish
for, take, retain, or possess a shark in or from the Atlantic EEZ for
the purposes of public display under the shark public display quota
specified in Sec. 635.27(b)(2). A valid shark EFP must be on board the
harvesting vessel, must be available when the shark is landed, must be
available when the shark is transported to the
[[Page 240]]
display facility, and must be presented for inspection upon request of
an authorized officer. A shark EFP is valid for the specific time, area,
gear, and species specified on it.
(3) To be eligible for a shark EFP, a person must provide all
information concerning his or her identification, numbers by species of
sharks to be collected, when and where they will be collected, vessel(s)
and gear to be used, description of the facility where they will be
displayed, and any other information that may be necessary for the
issuance or administration of the permit, as requested by NMFS.
(4) Written reports on fishing activities and disposition of catch
must be submitted to NMFS at an address designated by NMFS, for each
fish collected within 5 days of the collection. An annual written
summary report of all fishing activities and disposition of all fish
collected under the permit must also be submitted to NMFS at an address
designated by NMFS. NMFS will provide specific conditions and
requirements, consistent with the Fishery Management Plan for Atlantic
Tunas, Swordfish, and Sharks in the EFP.
Sec. 635.33 Archival tags.
(a) Implantation report. Any person affixing or implanting an
archival tag into a regulated species must obtain written authorization
from NMFS pursuant to Sec. 635.32. Persons so authorized to conduct
archival tag implantation must provide a written report to NMFS at an
address designated by NMFS, indicating the type and number of tags, the
species and approximate size of the fish as well as any additional
information requested in the authorization.
(b) Landing. Notwithstanding other provisions of this part, persons
may catch, possess, retain, and land an Atlantic HMS in which an
archival tag has been implanted or affixed, provided such persons comply
with the requirements of paragraph (c) of this section.
(c) Landing report. Persons that retain an Atlantic HMS that has an
archival tag must contact NMFS, prior to or at the time of landing;
furnish all requested information regarding the location and method of
capture; and, as instructed, remove the archival tag and return it to
NMFS or make the fish available for inspection and recovery of the tag
by a NMFS scientist, enforcement agent, or other person designated in
writing by NMFS.
(d) Quota monitoring. If an Atlantic HMS landed under the authority
of paragraph (b) of this section is subject to a quota, the fish will be
counted against the applicable quota for the species consistent with the
fishing gear and activity which resulted in the catch. In the event such
fishing gear or activity is otherwise prohibited under applicable
provisions of this part, the fish shall be counted against the reserve
quota established for that species.
Sec. 635.34 Adjustment of management measures.
(a) NMFS may adjust the catch limits for BFT, as specified in
Sec. 635.23, and the quotas for BFT, shark, and swordfish, as specified
in Sec. 635.27.
(b) In accordance with the framework procedures in the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks and the
Fishery Management Plan for Atlantic Billfishes, NMFS may establish or
modify for species or species groups of Atlantic HMS the following
management measures: maximum sustainable yield or optimum yield levels
based on the latest stock assessment or updates in the SAFE report;
domestic quotas; recreational and commercial retention limits, including
target catch requirements; size limits; fishing years or fishing
seasons; species in the management unit and the specification of the
species groups to which they belong; permitting and reporting
requirements; Atlantic tunas Purse Seine category cap on bluefin tuna
quota; time/area restrictions; allocations among user groups; gear
prohibitions, modifications, or use restrictions; effort restrictions;
essential fish habitat; and actions to implement ICCAT recommendations,
as appropriate.
[[Page 241]]
Subpart D--Restrictions on Imports
Sec. 635.40 Restrictions to enhance conservation.
(a) Determinations. Upon a determination by NMFS that species of
fish subject to regulation or under investigation by ICCAT are
ineligible for entry into the United States under 16 U.S.C. 971d (c)(4)
or (c)(5), NMFS, with the concurrence of the Secretary of State, will
file with the Office of the Federal Register for publication a finding
to that effect. Effective upon the date of filing of such finding, all
shipments of fish in any form of the species found to be ineligible will
be denied entry unless, with respect to a particular shipment, it is
established by satisfactory proof pursuant to paragraph (b) of this
section that the particular shipment of fish is eligible for entry.
Entry will not be denied and no such proof will be required for any such
shipment that, on the date of filing was in transit to the United States
on board a vessel operating as a common carrier.
(b) Proof of admissibility. (1) For the purposes of paragraph (a) of
this section and section 6(c) of ATCA, a shipment of fish in any form of
the species under regulation or under investigation by ICCAT offered for
entry, directly or indirectly, from a country named in a finding filed
with the Office of the Federal Register for publication under paragraph
(a) of this section is eligible for entry if the shipment is accompanied
by a completed ATCA COE attached to the invoice certifying that the fish
in the shipment:
(i) Are not of the species specified in the finding;
(ii) Are of the species named in the finding, but were not taken in
the regulatory area; or
(iii) Are of the species named in the finding, but are products of
an American fishery and were lawfully taken in conformity with
applicable conservation laws and regulations and landed in the country
named in the finding solely for transshipment.
(2) If the fish are offered for entry under paragraph (b)(1)(i) or
(b)(1)(ii) of this section, the ATCA COE must be executed by a duly
authorized official of the country named in the finding and the ATCA COE
must be validated by a consular officer or consular agent of the United
States. Such validation must be attached to the ATCA COE.
(3) If the fish are offered for entry under paragraph (b)(1)(iii) of
this section, the ATCA COE must be executed by a consular officer or
consular agent of the United States and be accompanied by the
declaration(s) required by 19 CFR 10.79. The ``Declaration of Master and
Two Members of Crew on Entry of Products of American Fisheries''
required by 19 CFR 10.79 must contain a further statement as follows:
``We further declare that the said fish were caught by us in full
compliance with part 635, title 50, Code of Federal Regulations, and
such other conservation laws and regulations as were applicable at the
time the fishing operation was in progress.''
(c) Removal of import restrictions. Upon a determination by NMFS
that the conditions no longer exist that warranted the the finding under
paragraph (a) of this section, NMFS will remove the import restriction
by filing with the Office of the Federal Register for publication
notification of removal effective on the date of filing. However, for 1
year from the date of filing every shipment of fish in any form that was
subject to the finding under paragraph (a) of this section will continue
to be denied entry, unless the shipment is accompanied by a
certification executed by an authorized official of the country of
export and authenticated by a consular officer or consular agent of the
United States certifying that no portion of the shipment is composed of
fish taken prior to or during the import restriction.
Sec. 635.41 Species subject to documentation requirements.
Imports into the United States and exports or re-exports from the
United States of all BFT or BFT products, regardless of ocean area of
catch, are subject to the documentation requirements of this subpart.
(a) Documentation is required for BFT identified by the following
item numbers from the Harmonized Tariff Schedule:
(1) Fresh or chilled BFT, excluding fillets and other fish meat, No.
0302.39.00.20.
[[Page 242]]
(2) Frozen BFT, excluding fillets, No. 0303.49.00.20.
(b) In addition, BFT products in other forms (e.g., chunks, fillets,
canned) listed under any other item numbers from the Harmonized Tariff
Schedule are subject to the documentation requirements of this subpart,
except that fish parts other than meat (e.g., heads, eyes, roe, guts,
tails) may be allowed entry without said statistical documentation.
(c) Southern bluefin tuna (Thunnus maccoyii) may be allowed entry
without the statistical documentation required under this section.
Sec. 635.42 Documentation requirements.
(a) BFT imports. (1) Imports of all BFT products into the United
States must be accompanied at the time of entry (filing of Customs Form
7501 or electronic equivalent) by an original completed approved BSD
with the information and exporter's certification specified in
Sec. 635.43(a). Customs Form 7501 can be obtained by contacting U.S.
Customs at http://www.customs.treas.gov/order.htm. Such information must
be validated as specified in Sec. 635.44(a) by a responsible government
official of the country whose flag vessel caught the tuna (regardless of
where the fish are first landed).
(2) BFT imported into the United States from a country requiring a
BSD tag on all such tuna available for sale must be accompanied by the
appropriate BSD tag issued by that country, and said BSD tag must remain
on any tuna until it reaches its final import destination. If the final
import destination is the United States, the BSD tag must remain on the
tuna until it is cut into portions. If the tuna portions are
subsequently packaged for domestic commercial use or re-export, the BSD
tag number and the issuing country must be written legibly and indelibly
on the outside of the package.
(3) A dealer who sells BFT that was previously imported into the
United States for domestic commercial use must provide on the original
BSD that accompanied the import shipment the correct information and
importer's certification specified in Sec. 635.43(a)(13) and must note
on the top of the BSD the entry number assigned at the time of filing
the entry summary. The original of the completed BSD must be postmarked
and mailed, or faxed, by said dealer to NMFS at an address designated by
NMFS within 24 hours of the time the tuna was imported into the United
States.
(b) BFT exports. (1) A dealer who exports BFT that was harvested by
U.S. vessels and first landed in the United States must complete an
original numbered BSD issued to that dealer by NMFS. Such an
individually numbered document is not transferable and may be used only
once by the dealer to which it was issued to report on a specific export
shipment. A dealer must provide on the BSD the correct information and
exporter certification specified in Sec. 635.43(a). The BSD must be
validated as specified in Sec. 635.44(b). A list of such officials may
be obtained by contacting NMFS. A dealer requesting U.S. Government
validation for exports should notify NMFS as soon as possible after
arrival of the vessel to avoid delays in inspection and validation of
the export shipment.
(2) A dealer who re-exports BFT that was previously imported into
the United States through filing an entry summary (Customs Form 7501 or
electronic equivalent) must provide on the original BSD that accompanied
the import shipment the correct information and intermediate importer's
certification specified in Sec. 635.43(a)(13) and must note on the top
of the BSD the entry number assigned at the time of filing the entry
summary. This requirement does not apply to BFT destined from one
foreign country to another which transits the United States and for
which an entry summary (Customs Form 7501 or electronic equivalent) is
not filed and for which a Shipper's Export Declaration for in-transit
merchandise (Customs Form 7513 or electronic equivalent) is filed.
Customs Form 7513 can be obtained by contacting U.S. Customs at http://
www.customs.treas.gov/order.htm.
(3) A dealer must submit the original of the completed BSD to
accompany the shipment of BFT to its export or re-export destination. A
copy of the BSD completed as specified under paragraph (b)(1) or (b)(2)
of this section
[[Page 243]]
must be postmarked and mailed by said dealer to NMFS, at an address
designated by NMFS, within 24 hours of the time the tuna was exported or
re-exported from the United States.
(c) Recordkeeping. A dealer must retain at his or her principal
place of business a copy of each BSD required to be submitted to NMFS
pursuant to this section for a period of 2 years from the date on which
it was submitted to NMFS.
Sec. 635.43 Contents of documentation.
(a) A BSD, to be deemed complete, must state:
(1) The document number assigned by the country issuing the
document.
(2) The name of the country issuing the document, which must be the
country whose flag vessel harvested the BFT, regardless of where the
tuna is first landed.
(3) The name of the vessel that caught the fish and the vessel's
registration number, if applicable.
(4) The name of the owner of the trap that caught the fish, if
applicable.
(5) The point of export, which is the city, state or province, and
country from which the BFT is first exported.
(6) The product type (fresh or frozen) and product form (round,
gilled and gutted, dressed, fillet, or other).
(7) The method of fishing used to harvest the fish (e.g., purse
seine, trap, rod and reel).
(8) The ocean area from which the fish was harvested (i.e., western
Atlantic, eastern Atlantic, Mediterranean, or Pacific).
(9) The weight of each fish (in kilograms for the same product form
previously specified).
(10) The identifying BSD tag number, if landed by vessels from
countries with tagging programs.
(11) The name and license number of, and be signed and dated in the
exporter's certification block by, the exporter.
(12) If applicable, the name and title of, and be signed and dated
in the validation block by, a responsible government official of the
country whose flag vessel caught the tuna (regardless of where the tuna
are first landed) or by an official of an institution accredited by said
government, with official government or accredited institution seal
affixed, thus validating the information on the BSD.
(13) As applicable, the name(s) and address(es), including the name
of the city and state or province of import, and the name(s) of the
intermediate country(ies) or the name of the country of final
destination, and license number(s) of, and be signed and dated in the
importer's certification block by each intermediate and the final
importer.
(b) An approved BSD may be obtained from NMFS to accompany exports
of BFT from the United States. A BFT dealer in a country that does not
provide an approved BSD to exporters may obtain an approved BSD from
NMFS to accompany exports to the United States.
(c) A dealer who exports bluefin tuna to the United States may use
the approved BSD obtainable from NMFS or a document developed by the
country of export, if that country submits a copy to the ICCAT Executive
Secretariat and NMFS concurs with the ICCAT Secretariat's determination
that the document meets the information requirements of the ICCAT
recommendation. In such case, NMFS will provide a list of countries for
which BSDs are approved, with examples of approved documents, to the
appropriate official of the U.S. Customs Service. Effective upon the
date indicated in such notice to the U.S. Customs Service, shipments of
BFT or BFT products offered for importation from said country(ies) may
be accompanied by either that country's approved BSD or by the BSD
provided to the foreign country exporter by NMFS.
Sec. 635.44 Validation requirements.
(a) Imports. The approved BSD accompanying any import of BFT,
regardless of whether the issuing country is a member of ICCAT, must be
validated by a government official from the issuing country, unless NMFS
waives this requirement for that country following a recommendation to
do so by the ICCAT Secretariat. NMFS will furnish a list of countries
for which government validation requirements are waived to the
appropriate official of the U.S. Customs Service.
[[Page 244]]
Such list will indicate the circumstances of exemption for each issuing
country and the non-government institutions, if any, accredited to
validate BSDs for that country.
(b) Exports. The approved BSD accompanying any export of BFT from
the United States must be validated by a U.S. Government official,
except pursuant to a waiver, if any, specified on the form and
accompanying instructions, or in a letter to the permitted dealer from
NMFS. Any waiver of government validation will be consistent with ICCAT
recommendations concerning validation of BSDs. If authorized, such
waiver of government validation may include:
(1) Exemptions from government validation for fish with individual
BSD tags affixed pursuant to Sec. 300.26 of this title or
Sec. 635.5(b)(2)(ii); or
(2) Validation by non-government officials authorized to do so by
NMFS under paragraph (c) of this section.
(c) Authorization for non-government validation. An institution or
association seeking authorization to validate BSDs accompanying exports
from the United States must apply in writing to the Director for such
authorization. The application must indicate the procedures to be used
for verification of information to be validated, list the names,
addresses, and telephone/fax numbers of individuals to perform
validation, and provide an example of the stamp or seal to be applied to
the BSD. NMFS, upon finding the institution or association capable of
verifying the information required on the BSD, will issue, within 30
days, a letter specifying the duration of effectiveness and conditions
of authority to validate BSDs accompanying exports from the United
States. The effectiveness of such authorization will be delayed as
necessary for NMFS to notify the ICCAT Secretariat of non-government
institutions and associations authorized to validate BSDs.
Sec. 635.45 Import restrictions for Belize, Honduras, and Panama.
All shipments of BFT or BFT products in any form harvested by a
vessel of Belize, Honduras, or Panama will be denied entry into the
United States.
Sec. 635.46 Import restrictions on swordfish.
(a) General. To facilitate enforcement of domestic regulations, a
swordfish, or part thereof, less than the minimum size specified at
Sec. 635.20(e) may not be imported, or attempted to be imported, into
the United States unless it is accompanied by the swordfish certificate
of eligibility as specified in paragraph (b) of this section attesting
either that the swordfish was harvested from an ocean area other than
the Atlantic Ocean or that the fish part was derived from a swordfish,
harvested from the Atlantic Ocean, that weighed at least 33 lb (15 kg)
dw at harvest.
(b) Swordfish COE. (1) A shipment of swordfish in any form offered
for import into the United States, directly or indirectly, from any
country is admissible only if accompanied by a swordfish COE. A
swordfish COE is required for swordfish identified by any item number
from the Harmonized Tariff Schedule including but not limited to the
following:
(i) Fresh or chilled swordfish steaks, No. 0302.69.20.41.
(ii) Fresh or chilled swordfish, excluding steaks, No.
0302.69.20.49.
(iii) Frozen swordfish steaks, No. 0302.79.20.41.
(iv) Frozen swordfish, excluding fillets, steaks and other fish
meat, No. 0302.79.20.49.
(v) Frozen swordfish, fillets, No. 0304.20.60.92.
(2) The swordfish COE required under this section must indicate, in
English, the flag state of the harvesting vessel, the ocean area of
harvest and, if the shipment contains swordfish or parts thereof less
than the minimum size specified at Sec. 635.20(e), the reason such
swordfish is eligible for entry, as specified in paragraph (a) of this
section. The swordfish COE shall be attached to the invoice accompanying
the swordfish shipment from the point of original export up to and
including the point of first transaction in the United States.
(3) The swordfish COE required under this section must include, in
English, the date, the name, the title of the governmental official or
other authorized
[[Page 245]]
person, and the name of the authorizing government agency of the country
exporting the swordfish to the United States. The swordfish COE must be
signed and dated by that governmental official or authorized person with
an official government seal affixed, thus validating the information on
the COE. (4) A swordfish COE may refer to swordfish taken from only one
ocean area of harvest (i.e., Atlantic, Pacific, Indian) and by vessels
under the jurisdiction of only one nation. If a shipment contains
swordfish taken from more than one ocean area, or swordfish harvested by
several vessels from different flag states, a separate swordfish COE
must accompany the shipment for each ocean area of harvest and for each
flag nation of the harvesting vessels.
(5) A model swordfish COE can be obtained by contacting the Division
Chief. An equivalent form may be used provided it contains all the
information required under this section.
(6) The importer must write the Customs Form 7501 entry number on
each swordfish COE and attach to the dealer report form all swordfish
COEs from shipments that are recorded on the bi-weekly dealer report
form.
Sec. 635.47 Ports of entry.
NMFS shall monitor the importation of BFT and swordfish into the
United States. If NMFS determines that the diversity of handling
practices at certain ports at which BFT or swordfish is being imported
into the United States allows for circumvention of the BSD or swordfish
COE requirement, NMFS may designate, after consultation with the U.S.
Customs Service, those ports at which Pacific or Atlantic bluefin tuna
or swordfish from any source may be imported into the United States.
NMFS shall announce through filing with the Office of the Federal
Register for publication the names of ports so designated and the
effective dates of entry restrictions.
Subpart E-International Port Inspection
Sec. 635.50 Basis and purpose.
The regulations in this subpart implement the ICCAT port inspection
scheme. The text of the ICCAT port inspection scheme may be obtained
from NMFS.
Sec. 635.51 Authorized officer.
For the purposes of this subpart, an authorized officer is a person
appointed by an ICCAT contracting party to serve as an authorized
inspector for ICCAT, and who possesses identification issued by the
authorized officer's national government.
Sec. 635.52 Vessels subject to inspection.
(a) All U.S. fishing vessels or vessels carrying fish species
subject to regulation pursuant to a recommendation of ICCAT, and their
catch, gear, and relevant documents, including fishing logbooks and
cargo manifests, are subject to inspection under this subpart to verify
compliance with ICCAT measures by an authorized officer when landing or
transshipping tuna or when making a port call at a port of any ICCAT
contracting party.
(b) A vessel, or a vessel carrying fish species subject to
regulation pursuant to a recommendation of ICCAT, that is registered by
any of the ICCAT contracting parties, and the vessel's catch, gear, and
relevant documents, including fishing logbooks and cargo manifests, are
subject to inspection under this subpart to verify compliance with ICCAT
measures when landing or transshipping regulated species or when making
a port call in the United States.
(c) The master of a vessel, or a vessel carrying fish species
subject to regulation pursuant to a recommendation of ICCAT, must
cooperate with an authorized officer during the conduct of an inspection
in national and foreign ports. Inspections will be carried out so that
the vessel suffers minimum interference and inconvenience, and so that
degradation of the quality of catch is avoided.
Sec. 635.53 Reports.
(a) Apparent violations shall be reported by the authorized officer
on a standardized ICCAT form or form produced by the national government
which collects the same quality of information. The authorized officer
must sign the form in the presence of the
[[Page 246]]
master of the vessel, who is entitled to add or have added to the report
any observations, and to add his own signature. The authorized officer
should note in the vessel's log that the inspection has been made.
(b) Copies of the report form must be sent to the flag state of the
vessel and to the ICCAT Secretariat within 10 days. Flag states will
consider and act on reports of apparent violations by foreign inspectors
on a similar basis as the reports of their national inspectors in
accordance with their national legislation. The vessel's flag state will
notify ICCAT of actions taken to address the violation.
Subpart F-Enforcement
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. To facilitate enforcement of time-area and
fishery closures, an owner or operator of a commercial vessel permitted
to fish for Atlantic HMS under Sec. 635.4 and that fishes with a pelagic
longline is required to install a NMFS-approved vessel monitoring system
(VMS) unit on board the vessel and operate the VMS unit whenever the
vessel leaves port with pelagic longline gear on board. A vessel is
considered to have pelagic longline gear on board for the purposes of
this section, when gear as specified at Sec. 635.21(c) is on board.
(b) Hardware specifications. The VMS hardware must be approved by
NMFS and must be able to perform all NMFS required functions. NMFS will
file with the Office of the Federal Register for publication
notification listing the specifications for approved VMS units. As
necessary, NMFS will make additions and/or amendments to the VMS
hardware type approval list to account for changes in specifications or
new products offered by manufacturers. NMFS will file with the Office of
the Federal Register for publication notification listing such additions
and/or amendments.
(c) Communications specifications. The communications service
provider must be approved by NMFS and must be able to provide all NMFS
required functions. NMFS will file with the Office of the Federal
Register for publication notification listing the specifications for
approved VMS communications service providers. As necessary, NMFS will
make additions and/or amendments to the VMS communications service
providers type approval list to account for changes in specifications or
new services offered by communications providers. NMFS will file with
the Office of the Federal Register for publication notification listing
such additions and/or amendments.
(d) Installation and service activation. When installing and
activating the NMFS-approved VMS unit, a vessel owner or operator must
follow procedures indicated on an installation and activation checklist
obtained from NMFS. Re-installation shall require the same checklist.
Upon completion of installation, the vessel owner must sign a statement
certifying compliance with the installation procedures of the checklist
and submit such certification to NMFS as indicated on the checklist.
Vessels fishing prior to submission of the certification will be in
violation of the VMS requirement.
(e) Operation. Owners or operators of vessels permitted, or required
to be permitted, to fish for HMS that have pelagic longline gear on
board, must activate the VMS to submit automatic position reports
beginning 2 hours prior to leaving port and not ending until the vessel
returns to port. While at sea, the unit must operate without
interruption and no person may interfere with, tamper with, alter,
damage, disable, or impede the operation of a VMS, or attempt any of the
same. Vessels fishing outside the geographic area of operation of the
installed VMS will be in violation of the VMS requirement.
(f) Interruption. When the vessel operator is aware that
transmission of automatic position reports has been interrupted, or when
notified by NMFS that automatic position reports are not being received,
the vessel operator must contact NMFS and follow the instructions given.
Such instructions may include but are not limited to manually
communicating to a location designated by NMFS the vessel's position or
returning to port until the VMS is operable.
(g) Repair and replacement. After a fishing trip during which
interruption
[[Page 247]]
of automatic position reports has occurred, the vessel's owner or
operator must replace or repair the VMS unit prior to the vessel's next
trip. Repair or reinstallation of a VMS unit or installation of a
replacement, including change of communications service provider shall
be in accordance with the checklist provided by NMFS and require the
same certification.
(h) Access. As a condition to obtaining a limited access permit for
Atlantic swordfish, sharks or tunas, all vessel owners or operators
using pelagic longline gear subject to the VMS provisions of this
section must allow NMFS, the USCG, and their authorized officers and
designees access to the vessel's position data obtained from the VMS at
the time of or after its transmission to the vendor or receiver, as the
case may be.
[64 FR 29135, May 28, 1999, as amended at 64 FR 37705, July 13, 1999; 65
FR 47238, Aug. 1, 2000]
Sec. 635.70 Penalties.
(a) General. See Sec. 600.735 of this chapter.
(b) Civil procedures for Atlantic tuna. Because of the perishable
nature of Atlantic tuna when it is not chilled or frozen, an authorized
officer may cause to be sold, for not less than its reasonable market
value, unchilled or unfrozen Atlantic tuna that may be seized and
forfeited under ATCA and this part.
Sec. 635.71 Prohibitions.
In addition to the prohibitions specified in Sec. 600.725 of this
chapter, it is unlawful for any person subject to the jurisdiction of
the United States to violate any provision of this part, ATCA, the
Magnuson-Stevens Act, or any other rules promulgated under ATCA or the
Magnuson-Stevens Act.
(a) General. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Falsify information required on an application for a permit
submitted under Sec. 635.4 or Sec. 635.16.
(2) Fish for, catch, possess, retain, or land an Atlantic HMS
without the appropriate valid vessel permit, LAP, or EFP on board the
vessel, as specified in Secs. 635.4 and 635.32.
(3) Purchase, receive, or transfer or attempt to purchase, receive,
or transfer, for commercial purposes, any Atlantic HMS landed by owners
of vessels not permitted to do so under Sec. 635.4, or purchase,
receive, or transfer, or attempt to purchase, receive, or transfer, for
commercial purposes, any Atlantic HMS without the appropriate valid
dealer permit issued under Sec. 635.4, except that this does not apply
to a shark harvested from a vessel that has not been issued a permit
under this part and that fishes exclusively within the waters under the
jurisdiction of any state.
(4) Sell or transfer or attempt to sell or transfer an Atlantic
tuna, shark, or swordfish other than to a dealer that has a valid dealer
permit issued under Sec. 635.4, except that this does not apply to a
shark harvested from a vessel that has not been issued a permit under
this part and that fishes exclusively within the waters under the
jurisdiction of any state.
(5) Fail to possess and make available for inspection a vessel
permit on board the permitted vessel or upon transfer of HMS to a dealer
or a dealer permit at the dealer's place of business, or to alter any
such permit as specified in Sec. 635.4(a).
(6) Falsify or fail to record, report, or maintain information
required to be recorded, reported, or maintained, as specified in
Sec. 635.5.
(7) Fail to allow an authorized agent of NMFS to inspect and copy
reports and records, as specified in Sec. 635.5(f).
(8) Fail to make available for inspection an Atlantic HMS or its
area of custody, as specified in Sec. 635.5(g).
(9) Fail to report the catching of any Atlantic HMS to which a
conventional tag has been affixed under a tag and release program.
(10) Falsify or fail to display and maintain vessel and gear
identification, as specified in Sec. 635.6.
(11) Fail to comply with the requirements for at-sea observer
coverage, as specified in Sec. 635.7 and Sec. 600.746.
(12) For any person to assault, resist, oppose, impede, intimidate,
interfere with, obstruct, delay, or prevent, by any means, any
authorized officer in the conduct of any search, inspection, seizure or
lawful investigation made in
[[Page 248]]
connection with enforcement of this part.
(13) Interfere with, delay, or prevent by any means, the
apprehension of another person, knowing that such person has committed
any act prohibited by this part.
(14) Fail to install, activate, repair or replace a vessel
monitoring system prior to leaving port with pelagic longline gear on
board the vessel as specified in Sec. 635.69.
(15) Tamper with, or fail to operate and maintain a vessel
monitoring system as specified in Sec. 635.69.
(16) Fail to contact NMFS or follow NMFS instructions when automatic
position reporting has been interrupted as specified in Sec. 635.69.
(17) Fish for Atlantic tunas or swordfish with a gillnet for or
possess Atlantic tunas or swordfish on board a vessel with a gillnet on
board, as specified in Sec. 635.21 (b), (d)(1), and (d)(4)(ii).
(18) Fail to retrieve fishing gear and move after an interaction
with a marine mammal or sea turtle, as specified in Sec. 635.21(c)(3).
(19) Fail to release an Atlantic HMS in the manner specified in
Sec. 635.21(a).
(20) Fail to report the retention of an Atlantic HMS that has an
archival tag, as specified in Sec. 635.33.
(21) Fail to maintain an Atlantic HMS in the form specified in
Sec. 635.30.
(22) Fish for, catch, retain, or possess an Atlantic HMS that is
less than its minimum size limit specified in Sec. 635.20.
(23) Fail to comply with the restrictions on use of a pelagic
longline or shark gillnet as specified in Sec. 635.21 (c) and (d)(3)(ii)
and (iii).
(24) Import any BFT or swordfish in a manner inconsistent with any
ports of entry designated by NMFS as authorized by Sec. 635.47.
(25) Dispose of fish or parts thereof or other matter in any manner
after any communication or signal from an authorized officer, or after
the approach of an authorized officer.
(26) Violate the terms and conditions or any provision of an
exempted fishing permit or scientific research permit issued under the
authority of Sec. 635.32.
(27) Operate a charterboat or headboat without a valid U.S. Coast
Guard merchant marine or uninspected passenger vessel license on board
the vessel when fishing for or possessing Atlantic HMS as specified at
Sec. 635.4(c)(2).
(28) Violate any provision of this part, the Magnuson-Stevens Act,
ATCA, or any regulations or permits issued under the Magnuson-Stevens
Act or ATCA.
(29) Fail to comply with the restrictions on importing HMS as
specified at Secs. 635.40, 635.41 and 635.46.
(30) Deploy or fish with a pelagic longline greater than the maximum
length authorized for any area specified at Sec. 635.21(c)(1).
(31) Deploy or fish with any fishing gear from a vessel with a
pelagic longline on board in any closed area during the time periods
specified at Sec. 635.21(c)(2).
(32) In the Gulf of Mexico, deploy or fish a pelagic longline with
live bait affixed to the hooks or to possess live bait, or set up a well
or tank to maintain live bait, aboard a vessel with pelagic longline
gear on board as specified at Sec. 635.21(c)(4).
(b) Atlantic tunas. It is unlawful for any person or vessel subject
to the jurisdiction of the United States to:
(1) Engage in fishing with a vessel that has a permit for Atlantic
tuna under Sec. 635.4, unless the vessel travels to and from the area
where it will be fishing under its own power and the person operating
that vessel brings any BFT under control (secured to the catching vessel
or on board) with no assistance from another vessel, except as shown by
the operator that the safety of the vessel or its crew was jeopardized
or other circumstances existed that were beyond the control of the
operator.
(2) Import or export bluefin tuna without a dealer permit, as
specified in Sec. 635.4(a)(4) and (g)(1).
(3) Fish for, catch, retain, or possess a BFT less than the large
medium size class by a vessel other than one that has on board an
Angling category Atlantic tunas permit, an HMS or Atlantic Tunas
Charter/Headboat permit, or a Purse Seine category Atlantic tunas permit
as authorized under Sec. 635.23 (b), (c), and (e)(2).
[[Page 249]]
(4) Fail to inspect a vessel's permit, fail to affix a dealer tag to
a large medium or giant BFT, or fail to use such tag as specified in
Sec. 635.5(b)(2).
(5) Fail to report a large medium or giant BFT that is not sold, as
specified in Sec. 635.5(a)(3) and Sec. 635.5(c).
(6) As an angler, fail to report a BFT, as specified in
Sec. 635.5(a)(3).
(7) Fish for, catch, retain, or possess a BFT with gear not
authorized for the category permit issued to the vessel or to have on
board such gear when in possession of a BFT, as specified in
Sec. 635.21(d)(1).
(8) Fail to request an inspection of a purse seine vessel, as
specified in Sec. 635.21(d)(1)(vi)(B).
(9) Fish for or catch BFT in a directed fishery with purse seine
nets without an allocation made under Sec. 635.27(a)(4).
(10) Fish for or catch any Atlantic tunas in a directed fishery with
purse seine nets from August 15 through December 31 if there is no
remaining BFT allocation made under Sec. 635.27 (a)(4).
(11) Exceed the recreational catch limit for yellowfin tuna, as
specified in Sec. 635.22(d).
(12) Exceed a catch limit for BFT specified for the appropriate
permit category, as specified in Sec. 635.23.
(13) As a vessel with a General category Atlantic tuna permit, fail
to immediately cease fishing and immediately return to port after
catching a large medium or giant BFT on a commercial fishing day, as
specified in Sec. 635.23(a)(3).
(14) As a vessel with an Angling category Atlantic tunas permit or
an HMS or Atlantic Tunas Charter/Headboat permit, fail to immediately
cease fishing and immediately return to port after catching a large
medium or giant BFT or fail to report such catch, as specified in
Sec. 635.23(b)(1)(iii) and (c)(1) through (c)(3).
(15) As a vessel with an Angling category Atlantic tunas permit or
an HMS or Atlantic Tunas Charter/Headboat permit, sell, offer for sale,
or attempt to sell a large medium or giant BFT after fishing under the
circumstances specified in Sec. 635.23(b)(1)(iii) and (c)(1) through
(3).
(16) Retain a BFT caught under the catch and release program
specified in Sec. 635.26.
(17) As a vessel with a Purse Seine category Atlantic tuna permit,
catch, possess, retain, or land BFT in excess of its allocation of the
Purse Seine category quota, or fish for BFT under that allocation prior
to August 15, as specified in Sec. 635.27(a)(4).
(18) As a vessel with a Purse Seine category Atlantic tunas permit,
land BFT smaller than the large medium size class except as specified
under Sec. 635.23(e)(2).
(19) Fish for, retain, possess, or land a BFT when the fishery is
closed, as specified in Sec. 635.28(a), except as may be authorized for
catch and release under Sec. 635.26.
(20) Approach to within 100 yd (91.5 m) of the cork line of a purse
seine net used by a vessel fishing for Atlantic tuna, or for a purse
seine vessel to approach to within 100 yd (91.5 m) of a vessel actively
fishing for Atlantic tuna, except that two vessels that have Purse Seine
category Atlantic tuna permits may approach closer to each other.
(21) Transfer at sea an Atlantic tuna, except as may be authorized
for the transfer of BFT between purse seine vessels, as specified in
Sec. 635.29(a).
(22) As the owner or operator of a purse seine vessel, fail to
comply with the requirements for weighing, measuring, and information
collection specified in Sec. 635.30(a)(2).
(23) Fish for, catch, possess, or retain a BFT from the Gulf of
Mexico except as specified under Sec. 635.23(f)(1), or if taken
incidental to recreational fishing for other species and retained in
accordance with Sec. 635.23(b) and (c).
(24) Fail to comply with the restrictions on sale and purchase of an
Atlantic tuna, as specified in Secs. 635.5(b), 635.23, and 635.31(a).
(25) Fail to comply with the documentation requirements for imported
or exported BFT or BFT products, as specified in Sec. 635.42.
(26) Import a BFT or BFT product into the United States from Belize,
Panama, or Honduras other than as authorized in Sec. 635.45.
(27) For any person to refuse to provide information requested by
NMFS
[[Page 250]]
personnel or anyone collecting information for NMFS, under an agreement
or contract, relating to the scientific monitoring or management of
Atlantic tunas.
(c) Billfish. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Retain a billfish on board a vessel with a pelagic longline on
board or harvested by gear other than rod and reel, as specified in
Sec. 635.21(d)(2).
(2) Transfer a billfish at sea, as specified in Sec. 635.29(a).
(3) Fail to maintain a billfish in the form specified in
Sec. 635.30(b).
(4) Sell or purchase a billfish, as specified in Sec. 635.31(b).
(5) Retain on board a vessel a longbill spearfish, or a blue marlin,
white marlin or sailfish that is less than the minimum size specified in
Sec. 635.20(d).
(d) Shark. It is unlawful for any person or vessel subject to the
jurisdiction of the United States to:
(1) Exceed a recreational retention limit for shark, as specified in
Sec. 635.22(c).
(2) Exceed a commercial retention limit for shark, as specified in
Sec. 635.24(a).
(3) Retain, possess, or land a shark of a species group when the
fishery for that species group is closed, as specified in
Sec. 635.28(b)(1) and (b)(2).
(4) Sell or purchase a shark of a species group when the fishery for
that species group is closed, as specified in Sec. 635.28(b)(3).
(5) Transfer a shark at sea, as specified in Sec. 635.29(b).
(6) Remove the fins from a shark listed in tables 1 and 2 in
appendix A to this part, and discard the remainder, or otherwise fail to
maintain a shark in its proper form, as specified in Sec. 635.30(c)(1)
through (c)(4).
(7) Have on board a fishing vessel, sell, or purchase shark fins
that are disproportionate to the weight of shark carcasses, as specified
in Sec. 635.30(c)(2) and (c)(3).
(8) Fail to have shark fins and carcasses weighed and recorded, as
specified in Sec. 635.30(c)(3).
(9) Fail to comply with the restrictions on sale and purchase of a
shark, as specified in Sec. 635.31(c).
(10) Retain, possess, sell, or purchase a prohibited shark.
(11) Falsify information submitted under Sec. 635.16(d)(2) or (d)(4)
in support of an application for an ILAP or an appeal of NMFS's denial
of an ILAP for shark.
(12) Fish for Atlantic sharks with unauthorized gear or possess
Atlantic sharks on board a vessel with unauthorized gear on board as
specified in Sec. 635.21(d)(3).
(13) Fish for Atlantic sharks with a gillnet or possess Atlantic
sharks on board a vessel with a gillnet on board, except as specified in
Sec. 635.21(d)(3).
(e) Swordfish. It is unlawful for any person or vessel subject to
the jurisdiction of the United States to:
(1) Purchase, barter for, or trade for a swordfish from the north or
south Atlantic swordfish stock or import a swordfish harvested from any
ocean area without a dealer permit, as specified in Sec. 635.4(g)(3).
(2) Fail to comply with the restrictions on use of a pelagic
longline specified in Sec. 635.21(b) and (c).
(3) When the directed fishery for swordfish is closed, exceed the
limits specified in Sec. 635.28(c)(1)(i) and (c)(1)(ii).
(4) When the incidental catch fishery for swordfish is closed,
possess, land, sell, or purchase a swordfish, as specified in
Sec. 635.28(c)(2).
(5) Transfer at sea a swordfish, as specified in Sec. 635.29(a).
(6) Fail to maintain a swordfish in the form specified in
Sec. 635.30(d).
(7) Fail to comply with the restrictions on sale and purchase of a
swordfish, as specified in Sec. 635.31(d).
(8) Fish for North Atlantic swordfish from, possess North Atlantic
swordfish on board, or land North Atlantic swordfish from a vessel using
or having on board gear other than pelagic longline or handgear.
(9) Fish for swordfish from the South Atlantic swordfish stock using
any gear other than pelagic longline.
(10) Fail to comply with the documentation requirements for the
importation of a swordfish, or part thereof, that is less than the
minimum size, as specified in Sec. 635.46.
(11) Falsify information submitted under Sec. 635.16(d)(2) or (d)(4)
in support
[[Page 251]]
of an application for an ILAP or an appeal of NMFS's denial of an
initial limited access permit for swordfish.
(12) Falsify information submitted under Sec. 635.46(b) in support
of entry of imported swordfish.
(13) Exceed the incidental catch retention limits specified at
Sec. 635.24(b).
[64 FR 29135, May 28, 1999, as amended at 64 FR 37705, July 13, 1999; 65
FR 42887, July 12, 2000; 65 FR 47238, Aug. 1, 2000]
Appendix A to Part 635--Species Tables
Table 1 of Appendix A to Part 635-Oceanic Sharks
A. Large coastal sharks:
1. Ridgeback sharks:
Sandbar, Carcharhinus plumbeus
Silky, Carcharhinus falciformis
Tiger, Galeocerdo cuvieri
2. Non-ridgeback sharks:
Blacktip, Carcharhinus limbatus
Bull, Carcharhinus leucas
Great hammerhead, Sphyrna mokarran
Lemon, Negaprion brevirostris
Nurse, Ginglymostoma cirratum
Scalloped hammerhead, Sphyrna lewini
Smooth hammerhead, Sphyrna zygaena
Spinner, Carcharhinus brevipinna
B. Small coastal sharks:
Atlantic sharpnose, Rhizoprionodon terraenovae
Blacknose, Carcharhinus acronotus
Bonnethead, Sphyrna tiburo
Finetooth, Carcharhinus isodon
C. Pelagic sharks:
Blue, Prionace glauca
Oceanic whitetip, Carcharhinus longimanus
Porbeagle, Lamna nasus
Shortfin mako, Isurus oxyrinchus
Thresher, Alopias vulpinus.
D. Prohibited sharks:
Atlantic angel, Squatina dumerili
Basking, Cetorhinus maximus
Bigeye sand tiger, Odontaspis noronhai
Bigeye sixgill, Hexanchus vitulus
Bigeye thresher, Alopias superciliosus
Bignose, Carcharhinus altimus
Caribbean reef, Carcharhinus perezi
Caribbean sharpnose, Rhizoprionodon porosus
Dusky, Carcharhinus obscurus
Galapagos, Carcharhinus galapagensis
Longfin mako, Isurus paucus
Narrowtooth, Carcharhinus brachyurus
Night, Carcharhinus signatus
Sand tiger, Odontaspis taurus
Sevengill, Heptranchias perlo
Sixgill, Hexanchus griseus
Smalltail, Carcharhinus porosus
Whale, Rhincodon typus
White, Carcharodon carcharias
Table 2 of Appendix A to Part 635-Deepwater/Other Shark Species
Blotched catshark, Scyliorhinus meadi
Broadgill catshark, Apristurus riveri
Chain dogfish, Scyliorhinus retifer
Deepwater catshark, Apristurus profundorum
Dwarf catshark, Scyliorhinus torrei
Iceland catshark, Apristurus laurussoni
Marbled catshark, Galeus arae
Smallfin catshark, Apristurus parvipinnis
Bigtooth cookiecutter, Isistius plutodus
Blainville's dogfish, Squalus blainvillei
Bramble shark, Echinorhinus brucus
Broadband dogfish, Etmopterus gracilispinnis
Caribbean lanternshark, Etmopterus hillianus
Cookiecutter shark, Isistius brasiliensis
Cuban dogfish, Squalus cubensis
Flatnose gulper shark, Deania profundorum
Fringefin lanternshark, Etmopterus schultzi
Great lanternshark, Etmopterus princeps
Green lanternshark, Etmopterus virens
Greenland shark, Somniosus microcephalus
Gulper shark, Centrophorus granulosus
Japanese gulper shark, Centrophorus acuus
Kitefin shark, Dalatias licha
Lined lanternshark, Etmopterus bullisi
Little gulper shark, Centrophorus uyato
Portuguese shark, Cetroscymnus coelolepis
Pygmy shark, Squaliolus laticaudus
Roughskin spiny dogfish, Squalus asper
Smallmouth velvet dogfish, Scymnodon obscurus
Smooth lanternshark, Etmopterus pusillus
American sawshark, Pristiophorus schroederi
Florida smoothhound, Mustelus norrisi
Smooth dogfish, Mustelus canis
PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH ATLANTIC--Table of Contents
Subpart A--General Provisions
Sec.
640.1 Purpose and scope.
640.2 Definitions.
640.3 Relation to other laws.
640.4 Permits and fees.
640.5 Recordkeeping and reporting. [Reserved]
640.6 Vessel and gear identification.
640.7 Prohibitions.
640.8 Facilitation of enforcement.
640.9 Penalties.
Subpart B--Management Measures
640.20 Seasons.
640.21 Harvest limitations.
640.22 Gear and diving restrictions.
[[Page 252]]
640.23 Bag/possession limits.
640.24 Authorized activities.
640.25 Adjustment of management measures.
Figures--Part 640
Figure 1--Carapace Length
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 640.1 Purpose and scope.
(a) The purpose of this part is to implement the Fishery Management
Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South
Atlantic prepared by the South Atlantic and Gulf of Mexico Fishery
Management Councils under the Magnuson Act.
(b) This part governs conservation and management of spiny lobster
and slipper (Spanish) lobster in the EEZ in the Atlantic Ocean and Gulf
of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/
North Carolina border south and through the Gulf of Mexico.
(c) An owner or operator of a vessel that has legally harvested
spiny lobsters in the waters of a foreign nation and possesses spiny
lobsters, or separated tails, in the EEZ incidental to such foreign
harvesting is exempt from the requirements of this part 640, provided
proof of lawful harvest in the waters of a foreign nation accompanies
such lobsters or tails.
[57 FR 56518, Nov. 30, 1992]
Sec. 640.2 Definitions.
In addition to the definitions in the Magnuson Act and in Sec. 620.2
of this chapter, the terms used in this part have the following
meanings:
Bully net means a circular frame attached at right angles to the end
of a pole and supporting a conical bag of webbing. The webbing is
usually held up by means of a cord which is released when the net is
dropped over a lobster.
Carapace length means the measurement of the carapace (head, body,
or front section) of a spiny lobster from the anteriormost edge (front)
of the groove between the horns directly above the eyes, along the
middorsal line (middle of the back), to the rear edge of the top part of
the carapace, excluding any translucent membrane.
Commercial fishing means any fishing or fishing activities which
result in the harvest of any marine or freshwater organisms, one or more
of which (or parts thereof) is sold, traded, or bartered.
Hoop net means a frame, circular or otherwise, supporting a shallow
bag of webbing and suspended by a line and bridles. The net is baited
and lowered to the ocean bottom, to be raised rapidly at a later time to
prevent the escape of lobster.
Live well means a shaded container used for holding live lobsters
aboard a vessel in which aerated seawater is continuously circulated
from the sea. Circulation of seawater at a rate that replaces the water
at least every 8 minutes meets the requirement for aeration.
Off Florida means the area from the Florida coast to the outer limit
of the EEZ between the Georgia/Florida boundary (30 deg.42'45.6"N.
latitude) and the Alabama/Florida boundary (87 deg.31'06"W. longitude).
Off the Gulf states, other than Florida means the area from the
coast to the outer limit of the EEZ between the Texas/Mexico border to
the Alabama/Florida boundary (87 deg.31'06" W. long.).
Off Monroe County, Florida means the area from the Florida coast to
the outer limit of the EEZ between a line extending directly east from
the Dade/Monroe County, Florida boundary (25 deg.20.4'N. latitude) and a
line extending directly west from the Monroe/Collier County, Florida
boundary (25 deg.48.0'N. latitude).
Off the southern Atlantic states, other than Florida means the area
from the coast to the outer limit of the EEZ between the Virginia/North
Carolina boundary (36 deg.34'55" N. lat.) to the Georgia/Florida
boundary (30 deg.42'45.6" N. lat.).
Recreational fishing means fishing or fishing activities which
result in the harvest of fish, none of which (or parts thereof) is sold,
traded, or bartered.
Regional Director means the Director, Southeast Region, NMFS, 9721
Executive Center Drive N., St. Petersburg, FL 33702, telephone 813-570-
5301; or a designee.
Slipper (Spanish) lobster means the species Scyllarides nodifer.
[[Page 253]]
Spiny lobster means the species Panulirus argus.
Tail length means the lengthwise measurement of the entire tail
(segmented portion), not including any protruding muscle tissue, of a
spiny lobster along the top middorsal line (middle of the back) to the
rearmost extremity. The measurement is made with the tail in a flat,
straight position with the tip of the tail closed.
Trip means a fishing trip, regardless of number of days' duration,
that begins with departure from a dock, berth, beach, seawall, or ramp
and that terminates with return to a dock, berth, beach, seawall, or
ramp.
[47 FR 29203, July 2, 1982, as amended at 52 FR 22659, June 15, 1987; 53
FR 17196, May 16, 1988; 53 FR 24655, June 29, 1988; 53 FR 38294, Sept.
30, 1988; 55 FR 26448, June 28, 1990; 57 FR 56518, Nov. 30, 1992; 58 FR
38979, July 21, 1993; 59 FR 53119, Oct. 21, 1994; 60 FR 41830, Aug. 14,
1995]
Sec. 640.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter and paragraph (b) of this section.
(b) The regulations in this part apply within the boundaries of any
national park, monument, or marine sanctuary in the Gulf of Mexico and
South Atlantic EEZ.
[47 FR 29203, July 2, 1982, as amended at 52 FR 22659, June 15, 1987; 53
FR 24655, June 29, 1988]
Sec. 640.4 Permits and fees.
(a) Applicability--(1) Licenses, certificates, and permits--(i) EEZ
off Florida and spiny lobster landed in Florida. For a person to sell,
trade, or barter, or attempt to sell, trade, or barter, a spiny lobster
harvested or possessed in the EEZ off Florida, or harvested in the EEZ
other than off Florida and landed from a fishing vessel in Florida, or
for a person to be exempt from the daily bag and possession limit
specified in Sec. 640.23(b)(1) for such spiny lobster, such person must
have the licenses and certificates specified to be a ``commercial
harvester,'' as defined in Rule 46-24.002(2), Florida Administrative
Code, in effect as of June 1, 1994. This incorporation by reference was
approved by the Director of the Office of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from the Florida Marine Fisheries Commission, 2540 Executive
Center Circle West, Suite 106, Tallahassee, FL 32301; telephone: 904-
487-0554. Copies may be inspected at the Office of the Regional
Director; the Office of Fisheries Conservation and Management, NMFS,
1315 East-West Highway, Silver Spring, MD; or the Office of the Federal
Register, 800 North Capitol Street NW, Suite 700, Washington, DC.
(ii) EEZ other than off Florida. For a person to sell, trade, or
barter, or attempt to sell, trade, or barter, a spiny lobster harvested
in the EEZ other than off Florida or for a person to be exempt from the
daily bag and possession limit specified in Sec. 640.23(b)(1) for such
spiny lobster, a Federal vessel permit must be issued to the harvesting
vessel and must be on board. However, see paragraph (a)(1)(i) of this
section for the licenses and certificates required for a person to
possess or land spiny lobster harvested in the EEZ other than off
Florida and subsequently possessed in the EEZ off Florida or landed from
a fishing vessel in Florida.
(2) Tail-separation permits. For a person to possess aboard a
fishing vessel a separated spiny lobster tail in or from the EEZ, a
tail-separation permit must be issued to the vessel and must be on
board.
(3) Corporation/partnership-owned vessels. For a vessel owned by a
corporation or partnership to be eligible for a Federal vessel permit
specified in paragraph (a)(1)(ii) of this section, the earned income
qualification specified in paragraph (b)(2)(vi) of this section must be
met by, and the statement required by that paragraph must be submitted
by, an officer or shareholder of the corporation, a general partner of
the partnership, or the vessel operator.
(4) Operator-qualified permits. A vessel permit issued upon the
qualification of an operator is valid only when that person is the
operator of the vessel.
(b) Applications for permits. (1) An application for a Federal
vessel and/or tail-separation permit must be submitted and signed by the
owner (in the case of a corporation, a qualifying officer or
shareholder; in the case of a
[[Page 254]]
partnership, a 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.
(2) An applicant must provide the following information:
(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 and official number.
(iii) Name, mailing address including zip code, telephone number,
social security number, and date of birth of the owner (if the owner is
a corporation/partnership, in lieu of the social security number,
provide the employer identification number, if one has been assigned by
the Internal Revenue Service, 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)(2)(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 requested by the Regional Director and
included on the application form.
(vi) A sworn statement by the applicant for a vessel permit
certifying that at least 10 percent of his or her earned income was
derived from commercial fishing, that is, sale of the catch, during the
calendar year preceding the application.
(vii) Documentation supporting the statement of income, if required
under paragraph (b)(3) of this section.
(viii) If a tail-separation permit is desired, a sworn statement by
the applicant certifying that his or her fishing activity--
(A) Is routinely conducted in the EEZ on trips of 48 hours or more;
and
(B) Necessitates the separation of carapace and tail to maintain a
quality product.
(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.
(3) The Regional Director may require the applicant to provide
documentation supporting the sworn statement under paragraph (b)(2)(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.
(c) Change in application information. The owner or operator of a
vessel with a permit must notify the Regional Director within 30 days
after any change in the application information specified in paragraph
(b) of this section. The permit is void if any change in the information
is not reported within 30 days.
(d) Fees. A fee is charged for each permit application submitted
under paragraph (b) of this section. The amount of the fee is calculated
in accordance with the procedures of the NOAA Finance Handbook for
determining the administrative costs of each special product or service.
The fee may not exceed such costs and is specified with each application
form. The appropriate fee must accompany each application.
(e) Issuance. (1) The Regional Director will issue a permit at any
time to an applicant if the application is complete and the applicant
meets the earned income requirement specified in paragraph (b)(2)(vi) of
this section. An application is complete when all requested forms,
information, and documentation have been received.
(2) 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 30 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
unless the vessel is sold or the permit is revoked, suspended, or
modified pursuant to subpart D of 15 CFR part 904.
[[Page 255]]
(g) Transfer. A permit issued pursuant to this section is not
transferable or assignable. A person purchasing a permitted vessel who
desires to conduct activities for which a permit is required must apply
for a permit in accordance with the provisions of paragraph (b) of this
section. The application must be accompanied by a copy of a signed bill
of sale.
(h) Display. A permit issued pursuant to this section must be
carried on board the vessel, and such vessel must be identified as
required by Sec. 640.6. The operator of a vessel must present the permit
for inspection upon the request of an authorized officer.
(i) 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.
(j) Alteration. A permit that is altered, erased, or mutilated is
invalid.
(k) 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.
[57 FR 56518, Nov. 30, 1992, as amended at 59 FR 53119, Oct. 21, 1994;
60 FR 41830, Aug. 14, 1995]
Sec. 640.5 Recordkeeping and reporting. [Reserved]
Sec. 640.6 Vessel and gear identification.
(a) EEZ off Florida. (1) An owner or operator of a vessel that is
used to harvest spiny lobsters by traps in the EEZ off Florida must
comply with the vessel and gear identification requirements applicable
to the harvesting of spiny lobsters by traps in Florida's waters in
sections 370.14(2)(a) and (3) and 370.142(2)(b), Florida Statutes, in
effect as of July 1, 1994, and in Rule 46-24.006(3), (4), and (5),
Florida Administrative Code, in effect as of June 1, 1994.
(2) An owner or operator of a vessel that is used to harvest spiny
lobsters by diving in the EEZ off Florida must comply with the vessel
identification requirements applicable to the harvesting of spiny
lobsters by diving in Florida's waters in Rule 46-24.006(6), Florida
Administrative Code, in effect as of June 1, 1994.
(3) The incorporation by reference in paragraphs (a)(1) and (a)(2)
of this section of sections 370.14(2)(a) and (3) and 370.142(2)(b),
Florida Statutes, and Rule 46-24.006(3), (4), (5), and (6), Florida
Administrative Code, was approved by the Director of the Office of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the Florida Marine Fisheries Commission,
2540 Executive Center Circle West, Suite 106, Tallahassee, FL 32301;
telephone: 904-487-0554. Copies may be inspected at the Office of the
Regional Director; the Office of Fisheries Conservation and Management,
NMFS, 1315 East-West Highway, Silver Spring, MD; or the Office of the
Federal Register, 800 North Capitol Street NW, Suite 700, Washington,
DC.
(b) EEZ other than off Florida. (1) The owner or operator of a
vessel that is used to harvest spiny lobsters in the EEZ other than off
Florida, must meet the following vessel and gear identification
requirements:
(i) The vessel's Florida crawfish license or trap number or, if not
licensed by Florida, the vessel's Federal vessel permit number must be
permanently and conspicuously displayed horizontally on the uppermost
structural portion of the vessel in numbers at least 10 inches (25.4 cm)
high so as to be readily identifiable from the air and water;
(ii) If the vessel uses spiny lobster traps in the EEZ, other than
off Florida--
(A) The vessel's color code, as assigned by Florida or, if a color
code has not been assigned by Florida, as assigned by the Regional
Director, must be permanently and conspicuously displayed above the
number specified in paragraph (b)(1)(i) of this section so as to be
readily identifiable from the air and water, such color code being in
the form of a circle at least 20 inches (50.8 cm) in diameter on a
background of colors contrasting to those contained in the assigned
color code;
(B) A buoy or timed-release buoy of such strength and buoyancy to
float
[[Page 256]]
must be attached to each spiny lobster trap or at each end of a string
of traps;
(C) A buoy used to mark spiny lobster traps must bear the vessel's
assigned color code and be of such color, hue, and brilliancy as to be
easily distinguished, seen, and located;
(D) A buoy used to mark spiny lobster traps must bear the vessel's
Florida crawfish license or trap number or, if not licensed by Florida,
the vessel's Federal vessel permit number in numbers at least 2 inches
(5.08 cm) high; and
(E) A spiny lobster trap must bear the vessel's Florida crawfish
license or trap number or, if not licensed by Florida, the vessel's
Federal vessel permit number permanently and legibly affixed.
(2) A spiny lobster trap in the EEZ, other than off Florida, will be
presumed to be the property of the most recently documented owner. Upon
the sale or transfer of a spiny lobster trap used in the EEZ, other than
off Florida, within 5 days of acquiring ownership, the person acquiring
ownership must notify the Florida Division of Law Enforcement of the
Department of Environmental Protection, for a trap that bears a Florida
crawfish license or trap number, or the Regional Director, for a trap
that bears a Federal vessel permit number, as to the number of traps
purchased, the vendor, and the crawfish license or trap number, or
Federal vessel permit number, currently displayed on the traps, and must
request issuance of a crawfish license or trap number, or Federal vessel
permit, if the acquiring owner does not possess such license or trap
number or permit.
(c) Unmarked traps and buoys. An unmarked spiny lobster trap or buoy
in the EEZ is illegal gear. Such trap or buoy, and any connecting lines,
will be considered unclaimed or abandoned property and may be disposed
of in any manner considered appropriate by the Assistant Administrator
or an authorized officer. An owner of such trap or buoy remains subject
to appropriate civil penalties.
[57 FR 56519, Nov. 30, 1992, as amended at 59 FR 53119, Oct. 21, 1994;
60 FR 41830, Aug. 14, 1995]
Sec. 640.7 Prohibitions.
In addition to the general prohibitions specified in Sec. 620.7 of
this chapter, it is unlawful for any person to do any of the following:
(a) Sell, trade, or barter, or attempt to sell, trade, or barter, a
spiny lobster in or from the EEZ without a required license,
certificate, or permit, as specified in Sec. 640.4(a)(1).
(b) Falsify information specified in Sec. 640.4(b)(2) on an
application for a permit.
(c) Fail to display a permit, as specified in Sec. 640.4(h).
(d) Falsify or fail to display and maintain vessel and gear
identification, as required by Sec. 640.6 (a) and (b).
(e) Possess a spiny lobster trap in the EEZ at a time not
authorized, as specified in Sec. 640.20(b)(3)(i) and (b)(3)(ii).
(f) Possess a spiny lobster in or from the EEZ at a time not
authorized, as specified in Sec. 640.20(b)(4).
(g) Fail to return immediately to the water a berried spiny lobster
or slipper lobster; strip eggs from or otherwise molest a berried spiny
lobster or slipper lobster; or possess a spiny lobster or slipper
lobster, or part thereof, from which eggs, swimmerettes, or pleopods
have been removed or stripped; as specified in Sec. 640.21(a).
(h) Possess or fail to return immediately to the water unharmed a
spiny lobster smaller than the minimum size limits specified in
Sec. 640.21 (b)(1) and (b)(3), except as provided in Sec. 640.21(c).
(i) Harvest or attempt to harvest a spiny lobster by diving without
having and using in the water a measuring device, or fail to release an
undersized spiny lobster in the water, as specified in
Sec. 640.21(b)(2).
(j) Possess an undersized spiny lobster for use as an attractant in
a trap in quantities or under conditions not authorized in
Sec. 640.21(c).
(k) Possess a separated spiny lobster tail, except as specified in
Sec. 640.21(d).
(l) Possess a spiny lobster harvested by prohibited gear or methods;
or possess on board a fishing vessel any dynamite or similar explosive
substance; as specified in Sec. 640.20(b) and Sec. 640.22 (a)(1) and
(a)(3).
(m) Use or possess in the EEZ a spiny lobster trap that does not
meet the requirements specified in Sec. 640.22(b)(1).
[[Page 257]]
(n) Pull or tend a spiny lobster trap other than during daylight
hours, as specified in Sec. 640.22(b)(2).
(o) Pull or tend another person's spiny lobster trap, except as
authorized in Sec. 640.22(b)(3).
(p) Possess spiny lobsters in or from the EEZ in an amount exceeding
the daily bag and possession limit specified in Sec. 640.23 (a), (b)(1),
or (b)(2) except as authorized in Sec. 640.23(b)(3) and (b)(4).
(q) Possess spiny lobsters aboard a vessel that uses or has on board
a net or trawl in an amount exceeding the limits, as specified in
Sec. 640.23(b)(4).
(r) Operate a vessel that fishes for or possesses spiny lobster in
or from the EEZ with spiny lobster aboard in an amount exceeding the
cumulative bag and possession limit, as specified in Sec. 640.23(d).
(s) Transfer or receive at sea spiny lobster in or from the EEZ
caught under the bag and possession limits, as specified in
Sec. 640.23(e).
(t) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Magnuson Act.
(u) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, purchase,
sale, possession, or transfer of a spiny lobster.
[57 FR 56520, Nov 30, 1992, as amended at 58 FR 38979, July 21, 1993; 58
FR 61845, Nov. 23, 1993; 59 FR 53119, Oct. 21, 1994; 60 FR 41831, Aug.
14, 1995]
Sec. 640.8 Facilitation of enforcement.
See Sec. 620.8 of this chapter.
[53 FR 24656, June 29, 1988]
Sec. 640.9 Penalties.
See Sec. 620.9 of this chapter.
[53 FR 24656, June 29, 1988]
Subpart B--Management Measures
Source: 57 FR 56520, Nov. 30, 1992, unless otherwise noted.
Sec. 640.20 Seasons.
(a) EEZ off the southern Atlantic states, other than Florida. In the
EEZ off the southern Atlantic states, other than Florida, there are no
seasonal restrictions on the harvest of spiny lobster or on the
possession of traps.
(b) EEZ off Florida and off the Gulf states, other than Florida--(1)
Commercial and recreational fishing season. The commercial and
recreational fishing season for spiny lobster in the EEZ off Florida and
the EEZ off the Gulf states, other than Florida, begins on August 6 and
ends on March 31.
(2) Special recreational fishing seasons--(i) EEZ off Florida. There
is a 2-day special recreational fishing season in the EEZ off Florida on
the last Wednesday and successive Thursday of July each year during
which fishing for spiny lobster is limited to diving or use of a bully
net or hoop net. (See Sec. 640.22(a) for general prohibitions on gear
and methods.) In the EEZ off Monroe County, Florida, no person may
harvest spiny lobster by diving at night, that is, from 1 hour after
official sunset to 1 hour before official sunrise, during this 2-day
special recreational fishing season.
(ii) EEZ off the Gulf states, other than Florida. There is a 2-day
special recreational fishing season in the EEZ off the Gulf states,
other than Florida, during the last Saturday and successive Sunday of
July each year during which fishing for spiny lobster may be conducted
by authorized gear and methods other than traps. (See Sec. 640.22(a) for
general prohibitions on gear and methods.)
(3) Possession of traps. (i) In the EEZ off Florida, the rules and
regulations applicable to the possession of spiny lobster traps in
Florida's waters in Rule 46-24.005(3), (4), and (5), Florida
Administrative Code, in effect as of June 1, 1994, apply in their
entirety to the possession of spiny lobster traps in the EEZ off
Florida. This incorporation by reference was approved by the Director of
the Office of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from the Florida Marine
Fisheries Commission, 2540 Executive Center Circle West, Suite 106,
Tallahassee, FL 32301; telephone: 904-487-0554. Copies may be inspected
at the Office of the Regional Director; the Office of Fisheries
Conservation and Management, NMFS, 1315 East-West Highway, Silver
[[Page 258]]
Spring, MD; or the Office of the Federal Register, 800 North Capitol
Street NW, Suite 700, Washington, DC.
(ii) In the EEZ off the Gulf states, other than Florida, a spiny
lobster trap may be placed in the water prior to the commercial and
recreational fishing season, which is specified in paragraph (b)(1) of
this section beginning on August 1 and must be removed from the water
after such season not later than April 5.
(iii) A spiny lobster trap, buoy, or rope in the EEZ off Florida or
in the EEZ off the Gulf states, other than Florida, during periods not
authorized in paragraphs (b)(3)(i) and (b)(3)(ii) of this section will
be considered unclaimed or abandoned property and may be disposed of in
any manner considered appropriate by the Assistant Administrator or an
authorized officer. An owner of such trap, buoy, or rope remains subject
to appropriate civil penalties.
(4) Possession of spiny lobsters. In the EEZ off Florida and the
Gulf states, a whole or a part of a spiny lobster subject to these
regulations may only be possessed during the commercial and recreational
fishing season and the special recreational fishing season specified in
Sec. 640.20, unless accompanied by proof of lawful harvest in the waters
of a foreign nation. Consistent with the provisions of paragraphs
(b)(3)(i) and (ii) of this section, a spiny lobster in a trap in this
area will not be deemed to be possessed provided such spiny lobster is
returned immediately to the water unharmed when a trap is removed from
the water between March 31 and April 15.
(c) Primacy of seasonal restrictions in the EEZ off Florida. The
seasonal restrictions applicable in the EEZ off Florida apply to all
spiny lobsters and traps in the EEZ off Florida, without regard to
harvest or use elsewhere, unless accompanied by proof of lawful harvest
elsewhere.
[60 FR 41831, Aug. 14, 1995]
Sec. 640.21 Harvest limitations.
(a) Berried lobsters. A berried (egg-bearing) spiny lobster or
slipper lobster in or from the EEZ must be returned immediately to the
water unharmed. If found in a trap in the EEZ, a berried spiny lobster
or slipper lobster may not be retained in the trap. A berried spiny
lobster or slipper lobster in or from the EEZ may not be stripped of its
eggs or otherwise molested. The possession of a spiny lobster or slipper
lobster, or part thereof, in or from the EEZ from which eggs,
swimmerettes, or pleopods have been removed or stripped is prohibited.
(b) Minimum size limits. (1) Except as provided in paragraph (c) of
this section--
(i) No person may possess a spiny lobster in or from the EEZ with a
carapace length of 3.0 inches (7.62 cm) or less; and
(ii) A spiny lobster, harvested in the EEZ by means other than
diving, with a carapace length of 3.0 inches (7.62 cm) or less must be
returned immediately to the water unharmed.
(2) No person may harvest or attempt to harvest a spiny lobster by
diving in the EEZ unless he or she possesses, while in the water, a
measuring device capable of measuring the carapace length. A spiny
lobster captured by a diver must be measured in the water using such
measuring device and, if the spiny lobster has a carapace length of 3.0
inches (7.62 cm) or less, it must be released unharmed immediately
without removal from the water.
(3) Aboard a vessel authorized under paragraph (d) of this section
to possess a separated spiny lobster tail, no person may possess in or
from the EEZ a separated spiny lobster tail with a tail length less than
5.5 inches (13.97 cm).
(c) Undersized attractants. A live spiny lobster under the minimum
size limit specified in paragraph (b)(1) of this section that is
harvested in the EEZ by a trap may be retained aboard the harvesting
vessel for future use as an attractant in a trap provided it is held in
a live well aboard the vessel. No more than fifty undersized spiny
lobsters, or one per trap aboard the vessel, whichever is greater, may
be retained aboard for use as attractants. The live well must provide a
minimum of \3/4\ gallons (1.7 liters) of seawater per spiny lobster. An
undersized spiny lobster so retained must be released to the water alive
and unharmed immediately upon leaving the trap lines and prior to one
hour after official sunset each day.
[[Page 259]]
(d) Tail separation. The possession aboard a fishing vessel of a
separated spiny lobster tail in or from the EEZ is authorized only when
the possession is incidental to fishing exclusively in the EEZ on a trip
of 48 hours or more and a Federal tail-separation permit specified in
Sec. 640.4(a)(2) has been issued to and is on board the vessel.
[57 FR 56520, Nov. 30, 1992, as amended at 59 FR 53119, Oct. 21, 1994]
Sec. 640.22 Gear and diving restrictions.
(a) Prohibited gear and methods. (1) A spiny lobster may not be
taken in the EEZ with a spear, hook, or similar device, or gear
containing such devices. In the EEZ, the possession of a speared,
pierced, or punctured spiny lobster is prima facie evidence that
prohibited gear was used to take such lobster. Hook, as used in this
paragraph (a)(1), does not include a hook in a hook-and-line fishery for
species other than spiny lobster; and possession of a spiny lobster that
has been speared, pierced, or punctured by such hook is not considered
evidence that prohibited gear was used to take the spiny lobster,
provided no prohibited gear is on board the vessel.
(2) A spiny lobster may not be taken in a directed fishery by the
use of a net or trawl. See Sec. 640.23(d) for the bycatch limits
applicable to a vessel that uses or has on board a net or trawl.
(3) Poisons and explosives may not be used to take a spiny lobster
or slipper lobster in the EEZ. For the purposes of this paragraph
(a)(3), chlorine, bleach, and similar substances, which are used to
flush a spiny lobster out of rocks or coral, are poisons. A vessel in
the spiny lobster or slipper lobster fishery may not possess on board in
the EEZ any dynamite or similar explosive substance.
(b) Traps. (1) In the EEZ, a spiny lobster trap may be no larger in
dimension than 3 feet by 2 feet by 2 feet (91.4 cm by 61.0 cm by 61.0
cm), or the volume equivalent. A trap constructed of material other than
wood must have a panel constructed of wood, cotton, or other material
that will degrade at the same rate as a wooden trap. Such panel must be
located in the upper half of the sides or on top of the trap, so that,
when removed, there will be an opening in the trap no smaller than the
diameter found at the throat or entrance of the trap.
(2) A spiny lobster trap in the EEZ may be pulled or tended during
daylight hours only, that is, from 1 hour before official sunrise to 1
hour after official sunset.
(3) A spiny lobster trap in the EEZ may be pulled or tended only by
the owner's vessel, or by a vessel for which permission to pull or work
traps belonging to another person has been granted--
(i) For traps in the EEZ off Florida, by the Florida Division of Law
Enforcement, Department of Environmental Protection, in accordance with
the procedures in Rule 46-24.006(7), Florida Administrative Code, in
effect as of June 1, 1994. This incorporation by reference was approved
by the Director of the Office of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the
Florida Marine Fisheries Commission, 2540 Executive Center Circle West,
Suite 106, Tallahassee, FL 32301; telephone: 904-487-0554. Copies may be
inspected at the Office of the Regional Director; the Office of
Fisheries Conservation and Management, NMFS, 1315 East-West Highway,
Silver Spring, MD; or the Office of the Federal Register, 800 North
Capitol Street NW, Suite 700, Washington, DC.
(ii) For traps in the EEZ, other than off Florida, by the Regional
Director, as may be arranged upon written request.
[57 FR 56520, Nov. 30, 1992, as amended at 58 FR 38980, July 21, 1993;
60 FR 41831, Aug. 14, 1995]
Sec. 640.23 Bag/possession limits.
(a) EEZ off the southern Atlantic states, other than Florida. The
daily bag or possession limit for spiny lobster in or from the EEZ off
the southern Atlantic states, other than Florida, is two per person for
commercial and recreational fishing, year-round.
(b) EEZ off Florida and off the Gulf states, other than Florida--(1)
Commercial and recreational fishing season. Except as specified in
paragraphs (b)(3) and (b)(4) of this section, during the commercial and
recreational fishing season specified in Sec. 640.20(b)(1), the daily
bag
[[Page 260]]
or possession limit of spiny lobster in or from the EEZ off Florida and
off the Gulf states, other than Florida, is six per person.
(2) Special recreational fishing seasons. During the special
recreational fishing seasons specified in Sec. 640.20(b)(2), the daily
bag or possession limit of spiny lobster--
(i) In or from the EEZ off the Gulf states, other than Florida, is
six per person;
(ii) In or from the EEZ off Florida other than off Monroe County,
Florida, is twelve per person; and
(iii) In or from the EEZ off Monroe County, Florida, is six per
person.
(3) Exemption from the bag/possession limit. During the commercial
and recreational fishing season specified in Sec. 640.20(b)(1), a person
is exempt from the bag and possession limit specified in paragraph (a)
of this section, provided--
(i) The harvest of spiny lobsters is by diving, or by the use of a
bully net, hoop net, or spiny lobster trap; and
(ii) The vessel from which the person is operating has on board the
required licenses, certificates, or permits, as specified in
Sec. 640.4(a)(1).
(4) Harvest by net or trawl. During the commercial and recreational
fishing season specified in Sec. 640.20(b)(1), aboard a vessel with the
required licenses, certificates, or permits specified in
Sec. 640.4(a)(1) that harvests spiny lobster by net or trawl or has on
board a net or trawl, the possession of spiny lobster in or from the EEZ
off Florida and off the Gulf states, other than Florida, may not exceed
at any time 5 percent, whole weight, of the total whole weight of all
fish lawfully in possession on board such vessel. If such vessel
lawfully possesses a separated spiny lobster tail, the possession of
spiny lobster in or from the EEZ may not exceed at any time 1.6 percent,
by weight of the spiny lobster or parts thereof, of the total whole
weight of all fish lawfully in possession on board such vessel. For the
purposes of this paragraph (b)(4), the term ``net or trawl'' does not
include a hand-held net, a loading or dip net, a bully net, or a hoop
net.
(5) Diving at night. The provisions of paragraph (b)(3) of this
section notwithstanding, a person who harvests spiny lobster in the EEZ
by diving at night, that is, from 1 hour after official sunset to 1 hour
before official sunrise, is limited to the bag limit specified in
paragraph (b)(1) of this section, whether or not a Federal vessel permit
specified in Sec. 640.4(a)(1) has been issued to and is on board the
vessel from which the diver is operating.
(c) Combination of bag/possession limits. A person who fishes for or
possesses spiny lobster in or from the EEZ under a bag or possession
limit specified in paragraph (a) or (b) of this section may not combine
the bag or possession limits of those paragraphs or combine such bag or
possession limit with a bag or possession limit applicable to state
waters.
(d) Responsibility for bag/possession limits. The operator of a
vessel that fishes for or possesses spiny lobster in or from the EEZ is
responsible for the cumulative bag or possession limit specified in
paragraphs (a) and (b) of this section applicable to that vessel, based
on the number of persons aboard.
(e) Transfer at sea. A person who fishes for or possesses spiny
lobster in or from the EEZ under a bag or possession limit specified in
paragraph (a) or (b) of this section may not transfer a spiny lobster at
sea from a fishing vessel to any other vessel, and no person may receive
at sea such spiny lobster.
[60 FR 41831, Aug. 14, 1995]
Sec. 640.24 Authorized activities.
The Assistant Administrator may authorize, for the acquisition of
information and date, activities otherwise prohibited by the regulations
in this part.
[57 FR 56520, Nov. 30, 1992, as amended at 60 FR 41832, Aug. 14, 1995]
Sec. 640.25 Adjustment of management measures.
In accordance with the framework procedure of the Fishery Management
Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South
Atlantic, the RA may establish or modify the following items:
definitions of essential fish habitat, Essential Fish Habitat-Habitat
Areas of Particular Concern, Coral-Habitat Areas of Particular Concern,
biomass levels, age-structured analyses, limits on the number of traps
[[Page 261]]
fished by each vessel, construction characteristics of traps,
specification of gear and vessel identification requirements,
specification of allowable or prohibited gear in a directed fishery,
specification of bycatch levels in non-directed fisheries, changes to
soak or removal periods and requirements for traps, recreational bag and
possession limits, changes in fishing seasons, limitations on use,
possession, and handling of undersized lobsters, and changes in minimum
size.
[65 FR 37296, June 14, 2000]
PART 644 [RESERVED]
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES--Table of Contents
Subpart A--General Provisions
Sec.
648.1 Purpose and scope.
648.2 Definitions.
648.3 Relation to other laws.
648.4 Vessel and individual commercial permits.
648.5 Operator permits.
648.6 Dealer/processor permits.
648.7 Recordkeeping and reporting requirements.
648.8 Vessel identification.
648.9 VMS requirements.
648.10 DAS notification requirements.
648.11 At-sea sea sampler/observer coverage.
648.12 Experimental fishing.
648.13 Transfers at sea.
648.14 Prohibitions.
648.15 Facilitation of enforcement.
648.16 Penalties.
648.17 Exemptions for vessels fishing in the NAFO Regulatory Area for
Multispecies vessels.
Subpart B--Management Measures for the Atlantic Mackerel, Squid, and
Butterfish Fisheries
648.20 Maximum optimum yield (OYs).
648.21 Procedures for determining initial annual amounts.
648.22 Closure of the fishery.
648.23 Gear restrictions.
648.24 Framework adjustments to management measures.
Subpart C--Management Measures for Atlantic Salmon
648.40 Prohibition on possession.
648.41 Framework specifications.
Subpart D-- Management Measures for the Atlantic Sea Scallop Fishery
648.50 Shell-height standard.
648.51 Gear and crew restrictions.
648.52 Possession limits.
648.53 DAS allocations.
648.54 State waters exemption.
648.55 Framework specifications.
648.57 Closed areas.
648.58 Sea Scallop Exemption Program.
Subpart E--Management Measures for the Atlantic Surf Clam and Ocean
Quahog Fisheries
648.70 Annual individual allocations.
648.71 Catch quotas.
648.72 Minimum surf clam size.
648.73 Closed areas.
648.74 Shucking at sea.
648.75 Cage identification.
648.76 Maine mahogany quahog zone.
648.77 Framework adjustments to management measures.
Subpart F--Management Measures for the NE Multispecies and Monkfish
Fisheries
648.80 Multispecies regulated mesh areas and restrictions on gear and
methods of fishing.
648.81 Closed areas.
648.82 Effort-control program for multispecies limited access vessels.
648.83 Multispecies minimum fish sizes.
648.84 Gear-marking requirements and gear restrictions.
648.85 Flexible Area Action System.
648.86 Multispecies possession restrictions.
648.87 Gillnet requirements to reduce or prevent marine mammal takes.
648.88 Multispecies open access permit restrictions.
648.89 Recreational and charter/party restrictions.
648.90 Multispecies framework specifications.
648.91 Monkfish regulated mesh areas and restrictions on gear and
methods of fishing.
648.92 Effort-control program for monkfish limited access vessels.
648.93 Monkfish minimum fish sizes.
648.94 Monkfish possession and landing restrictions.
648.95 [Reserved]
648.96 Monkfish framework specifications.
Subpart G--Management Measures for the Summer Flounder Fishery
648.100 Catch quotas and other restrictions.
648.101 Closures.
648.102 Time restrictions.
648.103 Minimum fish sizes.
648.104 Gear restrictions.
[[Page 262]]
648.105 Possession restrictions.
648.106 Sea turtle conservation.
648.107 Conservation equivalent measures for the recreational summer
flounder fishery.
648.108 Framework adjustments to management measures.
Subpart H--Management Measures for the Scup Fishery
648.120 Catch quotas and other restrictions.
648.121 Closures.
648.122 Season and area restrictions.
648.123 Gear restrictions.
648.124 Minimum fish sizes.
648.125 Possession limit.
648.126 Protection of threatened and endangered sea turtles.
648.127 Framework adjustments to management measures.
Subpart I--Management Measures for the Black Sea Bass Fishery
648.140 Catch quotas and other restrictions.
648.141 Closure.
648.142 Time restrictions.
648.143 Minimum sizes.
648.144 Gear restrictions.
648.145 Possession limit.
648.146 Special management zones.
648.147 Framework adjustments to management measures.
Subpart J--Management Measures for the Atlantic Bluefish Fishery
648.160 Catch quotas and other restrictions.
648.161 Closures.
648.162 Minimum fish sizes.
648.163 Gear restrictions.
648.164 Possession restrictions.
648.165 Framework specifications.
Subpart K [Reserved]
Subpart L--Management Measures for the Spiny Dogfish Fishery
648.230 Catch quotas and other restrictions.
648.231 Closures.
648.232 Time Restrictions. [Reserved]
648.233 Minimum Fish Sizes. [Reserved]
648.234 Gear restrictions. [Reserved]
648.235 Possession limit. [Reserved]
648.236 Special Management Zones. [Reserved]
648.237 Framework provisions.
Authority: 16 U.S.C. 1801 et seq.
Source: 61 FR 34968, July 3, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes for part 648 appear at 62 FR
14651, Mar. 27, 1997.
Subpart A--General Provisions
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans (FMPs) for the
Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the
Atlantic sea scallop fishery (Atlantic Sea Scallop FMP (Scallop FMP));
the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam
and Ocean Quahog FMP); the Northeast multispecies and monkfish fisheries
(NE Multispecies FMP) and (Monkfish FMP); the summer flounder, scup, and
black sea bass fisheries (Summer Flounder, Scup, and Black Sea Bass
FMP); the Atlantic bluefish fishery (Atlantic Bluefish FMP); and the
spiny dogfish fishery (Spiny Dogfish FMP). These FMPs and the
regulations in this part govern the conservation and management of the
above named fisheries of the Northeastern United States.
(b) This part governs domestic fishing only. Foreign fishing is
governed under subpart F of part 600 of this chapter.
[61 FR 34968, July 3, 1996, as amended at 61 FR 43424, Aug. 23, 1996; 62
FR 13299, Mar. 20, 1997; 65 FR 1568, Jan. 11, 2000]
Sec. 648.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 600.10 of this chapter, the terms used in this part have the
following meanings:
Alewife means Alosa pseudoharengus.
American lobster or lobster means Homarus americanus.
American shad means Alosa sapidissima.
Atlantic butterfish or butterfish means Peprilus triacanthus.
Atlantic croaker means Micropogonias undulatus.
Atlantic mackerel or mackerel means Scomber scombrus.
Atlantic Mackerel, Squid, and Butterfish Monitoring Committee means
the committee made up of staff representatives of the MAFMC and the
NEFMC, and the Northeast Regional Office and NEFSC of NMFS. The MAFMC
Executive Director or a designee chairs the Committee.
Atlantic salmon means Salmo salar.
[[Page 263]]
Atlantic sea scallop or scallop means Placopecten magellanicus,
throughout its range.
Beam trawl means gear, consisting of a twine bag attached to a beam
attached to a towing wire, designed so that the beam does not contact
the bottom. The beam is constructed with sinkers or shoes on either side
that support the beam above the bottom or any other modification so that
the beam does not contact the bottom. The beam trawl is designed to
slide along the bottom rather than dredge the bottom.
Black sea bass means Centropristis striata.
Black Sea Bass Monitoring Committee means a committee made up of
staff representatives of the Mid-Atlantic, New England, and South
Atlantic Fishery Management Councils, the Northeast Regional Office of
NMFS, the Northeast Fisheries Science Center, and Commission
representatives. The Council Executive Director or his designee chairs
the Committee.
Black sea bass pot or black sea bass trap means any such gear used
in catching and retaining black sea bass.
Blowfish (puffer) means any species in the family Tetraodontidae.
Bluefish means Pomotomus saltatrix.
Bluefish Monitoring Committee means a committee made up of staff
representatives of the Mid-Atlantic Fishery Management Council, the New
England Fishery Management Council, and South Atlantic Fishery
Management Council, the NMFS Northeast Regional Office, the NMFS
Northeast Fisheries Science Center, and the Commission. The Mid-Atlantic
Fishery Management Council's Executive Director or a designee chairs the
committee.
Bonito means Sarda sarda.
Brush-sweep trawl gear means trawl gear consisting of alternating
roller discs and bristle brushes that are strung along cables, chains,
or footropes, and aligned together to form the sweep of the trawl net,
designed to allow the trawl sweep to maintain contact with the ocean
floor, or any modification to trawl gear that is substantially similar
in design or effect.
Bushel (bu) means a standard unit of volumetric measurement deemed
to hold 1.88 ft\3\ (53.24 L) of surf clams or ocean quahogs in the
shell.
Cage means a container with a standard unit of volumetric
measurement containing 60 ft\3\ (1,700 L). The outside dimensions of a
standard cage generally are 3 ft (91 cm) wide, 4 ft (122 cm) long, and 5
ft (152 cm) high.
Chafing gear or cookies, with respect to the scallop fishery, means
steel, rubberized or other types of donut rings, disks, washers, twine,
or other material attached to or between the steel rings of a sea
scallop dredge.
Charter or party boat means any vessel that carries passengers for
hire to engage in recreational fishing and, with respect to
multispecies, that is not fishing under a DAS.
Combination vessel means a vessel that has fished in any one
calendar year with scallop dredge gear and otter trawl gear during the
period 1988 through 1990, and that is eligible for an allocation of
individual DAS under the NE Multispecies FMP and has applied for or been
issued a limited access scallop permit.
Commercial fishing or fishing commercially means fishing that is
intended to, or results in, the barter, trade, transfer, or sale of
fish.
Commission means the Atlantic States Marine Fisheries Commission.
Conger eel means Conger oceanicus.
Cunner means Tautogolabrus adspersus.
Council means the New England Fishery Management Council (NEFMC) for
the Atlantic sea scallop and the NE multispecies fisheries, or the Mid-
Atlantic Fishery Management Council (MAFMC) for the Atlantic mackerel,
squid, and butterfish; the Atlantic surf clam and ocean quahog; the
summer flounder, scup, and black sea bass fisheries; the Atlantic
bluefish fishery; and the spiny dogfish fishery.
Councils with respect to the monkfish fishery and spiny dogfish
fishery means the New England Fishery Management Council (NEFMC) and the
Mid-Atlantic Fishery Management Council (MAFMC).
Day(s)-at-Sea (DAS), with respect to the NE multispecies and
monkfish fisheries, and Atlantic sea scallop fishery, except as
described in Sec. 648.82(k)(1)(iv), means the 24-hour period of time or
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any part thereof during which a fishing vessel is absent from port to
fish for, possess, or land, or fishes for, possesses, or lands,
regulated species, monkfish, or scallops.
Dealer means any person who receives, for a commercial purpose
(other than solely for transport on land), from the owner or operator of
a vessel issued a valid permit under this part, any species of fish, the
harvest of which is managed by this part, unless otherwise exempted in
this part.
Dealer code means a confidential five-digit number assigned to each
dealer required to submit purchases using the IVR system for the purpose
of maintaining the integrity of the data reported through the IVR
system.
Dredge or dredge gear, with respect to the scallop fishery, means
gear consisting of a mouth frame attached to a holding bag constructed
of metal rings, or any other modification to this design, that can be or
is used in the harvest of scallops.
Dredge bottom, with respect to scallops, means the rings and links
found between the bail of the dredge and the club stick, which, when
fishing, would be in contact with the sea bed. This includes the
triangular shaped portions of the ring bag commonly known as
``diamonds.''
Dredge top, with respect to the scallop fishery, means the mesh
panel in the top of a dredge and immediately adjacent rings and links
found between the bail of the dredge, the club stick, and the two side
panels. The bail of the dredge is the rigid structure of the forward
portion of the dredge that connects to the warp and holds the dredge
open. The club stick is the rigid bar at the tail of the dredge bag that
is attached to the rings.
Dredge vessel, with respect to the scallop fishery, means any
fishing vessel that is equipped for fishing using dredge gear and that
is capable of catching scallops.
Exempted gear, with respect to the NE multispecies fishery, means
gear that is deemed to be not capable of catching NE multispecies and
includes: Pelagic hook and line, pelagic longline, spears, rakes, diving
gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets,
pelagic gillnets, pots and traps, purse seines, shrimp trawls (with a
properly configured grate as defined under this part), surf clam and
ocean quahog dredges, and midwater trawls.
Fishing trip or trip means a period of time during which fishing is
conducted, beginning when the vessel leaves port and ending when the
vessel returns to port.
Fishing year means:
(1) For the Atlantic sea scallop fishery, from March 1 through the
last day of February of the following year.
(2) For the NE multispecies and monkfish fisheries, from May 1
through April 30 of the following year.
(3) For all other fisheries in this part, from January 1 through
December 31.
Flatfish gillnets means gillnets that are either constructed with no
floats on the float line, or that are constructed with floats on the
float line and that have tie-down twine between the float line and the
lead line not more than 48 inches (18.90 cm) in length and spaced not
more than 15 feet (4.57 m) apart.
FMP means fishery management plan.
Fourspot flounder means Paralichthys oblongus.
Gillnet gear capable of catching multispecies means all gillnet gear
except pelagic gillnet gear specified at Sec. 648.81(g)(2)(ii) and
pelagic gillnet gear that is designed to fish for and is used to fish
for or catch tunas, swordfish, and sharks.
Gross registered tonnage (GRT) means the gross registered tonnage
specified on the USCG documentation for a vessel.
Hagfish means Myxine glutinosa.
Handline or handline gear means fishing gear that is released by
hand and consists of one main line to which is attached no more than two
leaders for a total of no more than three hooks. Handlines are retrieved
only by hand, not by mechanical means.
Harbor porpoise means Phocoena phocoena.
Harbor Porpoise Review Team (HPRT) means a team of scientific and
technical experts appointed by the NEFMC to review, analyze, and propose
harbor porpoise take mitigation alternatives.
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Herring means Atlantic herring, Clupea harengus, or blueback
herring, Alosa aestivalis.
Hickory shad means Alosa mediocris.
Hook gear means fishing gear that is comprised of a hook or hooks
attached to a line and includes, but is not limited to, longline,
setline, jigs, troll line, rod and reel, and line trawl.
Illex means Illex illecebrosus (short-finned or summer squid).
IVR system means the Interactive Voice Response dealer reporting
system established by the Regional Administrator for the purpose of
monitoring dealer purchases.
John Dory means Zenopsis conchifera.
Land means to begin offloading fish, to offload fish, or to enter
port with fish.
Liner means a piece of mesh or any other material rigged inside or
outside the main or outer net or dredge that restricts the mesh or ring
size or otherwise reduces escapement.
Link, with respect to the sea scallop fishery, means the material,
usually made of a \3/8\-inch (10-mm) or \7/16\-inch (11-mm) diameter
metal rod, that joins two adjacent rings within the ring bag of a
dredge.
Little tunny means Euthynnus alleteratus.
Loligo means Loligo pealei (long-finned or bone squid).
Longhorn sculpin means Myoxocephalus octodecimspinosus.
Longline gear means fishing gear that is or is designed to be set
horizontally, either anchored, floating, or attached to a vessel, and
that consists of a main or ground line with three or more gangions and
hooks.
Maine bushel means a standard unit of volumetric measurement equal
to 1.2445 cubic feet (35.24 L) of ocean quahogs in the shell.
Maine mahogany quahog zone means the area bounded on the east by the
U.S.-Canada maritime boundary, on the south by a straight line at
43 deg.50' N. latitude, and on the north and west by the shoreline of
Maine.
Menhaden means Atlantic menhaden, Brevoortia tyrannus.
Midwater trawl gear means trawl gear that is designed to fish for,
is capable of fishing for, or is being used to fish for pelagic species,
no portion of which is designed to be or is operated in contact with the
bottom at any time.
Mobile gear means trawls, beam trawls, and dredges that are designed
to maneuver with that vessel.
Monkfish, also known as anglerfish or goosefish, means Lophius
americanus.
Monkfish gillnets means gillnet gear with mesh size no smaller than
10-inches (25.4 cm) diamond mesh that is designed and used to fish for
and catch monkfish while fishing under a monkfish DAS.
Monkfish Monitoring Committee means a team of scientific and
technical staff appointed by the NEFMC and MAFMC to review, analyze, and
recommend adjustments to the management measures. The team consists of
staff from the NEFMC and the MAFMC, NMFS Northeast Regional Office,
NEFSC, the USCG, two fishing industry representatives selected by their
respective Council chairman (one from each management area with at least
one of the two representing either the Atlantic sea scallop or northeast
multispecies fishery), and staff from affected coastal states, appointed
by the Atlantic States Marine Fisheries Commission. The Chair is elected
by the Committee from within its ranks, subject to the approval of the
Chairs of the NEFMC and MAFMC.
Mullet means any species in the family Mugilidae.
Multispecies frames, also known as multispecies racks, means the
remains of the multispecies finfish after it has been filleted or
processed, not including the fillet.
Multispecies Monitoring Committee means a team of scientific and
technical staff appointed by the NEFMC to review, analyze, and recommend
adjustments to the measurement measures. The team consists of staff from
the NEFMC and the MAFMC, NMFS Northeast Region Office, NEFSC, the USCG,
an industry representative, and no more than two representatives,
appointed by the Commission, from affected states.
NAFO means Northwest Atlantic Fisheries Organization.
NAFO Convention Area means the waters of the Northwest Atlantic
Ocean north of 35 deg.00' N. lat. and west of a line extending due north
from 35 deg.00' N. lat.
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and 42 deg.00' W. long. to 59 deg.00' N. lat., thence due west to
44 deg.00' W. long., and thence due north to the coast of Greenland and
the waters of the Gulf of St. Lawrence, Davis Strait and Baffin Bay
south of 78 deg.10' N. lat.
NAFO Regulatory Area means the part of the NAFO Convention Area
which lies beyond the 200-mile zone of the coastal states.
NEFSC means the Northeast Fisheries Science Center, NMFS.
Net tonnage (NT) means the net tonnage specified on the USCG
documentation for a vessel.
Non-exempt gillnet fishery means a fishery which uses gillnet gear
capable of catching multispecies.
Non-exempt species means species of fish not included under the GOM/
GB and SNE Regulated Mesh Area exempted fisheries, as specified in
Sec. 648.80(a)(3), (a)(4), (a)(8) through (13), (b)(3)(i) and (ii),
(b)(5) through (8), and (d), (e), (h), and (i).
Northeast (NE) multispecies or multispecies means the following
species:
American plaice--Hippoglossoides platessoides.
Atlantic cod--Gadus morhua.
Atlantic halibut--Hippoglossus hippoglossus.
Haddock--Melanogrammus aeglefinus.
Ocean Pout--Macrozoarces americanus.
Offshore Hake--Merluccius albidus.
Pollock--Pollachius virens.
Redfish--Sebastes fasciatus.
Red hake--Urophycis chuss.
Silver hake (whiting)--Merluccius bilinearis.
White hake--Urophycis tenuis.
Windowpane flounder--Scophthalmus aquosus.
Winter flounder--Pleuronectes americanus.
Witch flounder--Glyptocephalus cynoglossus.
Yellowtail flounder--Pleuronectes ferruginea.
Northern shrimp means Pandalus borealis.
Ocean quahog means the species Arctica islandica.
Offload or offloading means to begin to remove, to remove, to pass
over the rail, or otherwise take away fish from any vessel. For purposes
of the surf clam and ocean quahog fishery, it means to separate
physically a cage from a vessel, such as by removing the sling or wire
used to remove the cage from the harvesting vessel.
Operator means the master, captain, or other individual on board a
fishing vessel, who is in charge of that vessel's operations.
Out of the monkfish fishery means the period of time during which a
vessel is not fishing for monkfish under the monkfish DAS program.
Out of the multispecies fishery means the period of time during
which a vessel is not fishing for regulated species under the NE
multispecies DAS program.
Pair trawl or pair trawling means to tow a single net between two
vessels.
Pelagic hook and line gear means handline or rod and reel gear that
is designed to fish for, or that is being used to fish for, pelagic
species, no portion of which is designed to be or is operated in contact
with the bottom at any time.
Pelagic longline gear means fishing gear that is not fixed, nor
designed to be fixed, nor anchored to the bottom and that consists of
monofilament main line (as opposed to a cable main line) to which
gangions are attached.
Personal use, with respect to the surf clam or ocean quahog fishery,
means harvest of surf clams or ocean quahogs for use as bait, for human
consumption, or for other purposes (not including sale or barter) in
amounts not to exceed 2 bu (106.48 L) per person per fishing trip.
Person who receives bluefish for commercial purposes means any
person (excluding representatives of governmental agencies) engaged in
the sale, barter, or trade of bluefish received from a fisherman, or one
who transports bluefish from a fisherman.
Postmark means independently verifiable evidence of date of mailing,
such as U.S. Postal Service postmark, United Parcel Service (U.P.S.) or
other private carrier postmark, certified mail receipt, overnight mail
receipt, or receipt received upon hand delivery to an authorized
representative of NMFS.
Prior to leaving port, with respect to the call-in notification
system for the Atlantic sea scallop, NE multispecies, and monkfish
fisheries, means prior to the last dock or mooring in port from which a
vessel departs to engage in fishing, including the transport of fish to
another port.
Processor means a person who receives surf clams or ocean quahogs
for a commercial purpose and removes them from a cage.
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Purse seine gear means an encircling net with floats on the top
edge, weights and a purse line on the bottom edge, and associated gear,
or any net designed to be, or capable of being, used in such fashion.
Quota-managed species means any species of finfish managed under
this part by an annual or seasonal quota, by annual target or actual
TAC, or by DAH limits.
Recreational fishing means fishing that is not intended to, nor
results in the barter, trade, or sale of fish.
Recreational fishing vessel, with respect to the scup fishery, means
any vessel from which no fishing other than recreational fishing is
conducted. Charter and party boats are considered recreational fishing
vessels for purposes of the scup minimum size requirement.
Regional Administrator means the Administrator, Northeast Region,
NMFS, or a designee.
Regulated fishery means any fishery of the United States which is
regulated under the Magnuson-Stevens Act.
Regulated species means the subset of NE multispecies that includes
Atlantic cod, witch flounder, American plaice, yellowtail flounder,
haddock, pollock, winter flounder, windowpane flounder, redfish, and
white hake.
Reporting month means the period of time beginning at 0001 hours
local time on the first day of each calendar month and ending at 2400
hours local time on the last day of each calendar month.
Reporting week means the period of time beginning at 0001 local time
on Sunday and ending at 2400 hours local time the following Saturday.
Re-rig or re-rigged means physical alteration of the vessel or its
gear in order to transform the vessel into one capable of fishing
commercially for a species in the applicable fishery.
Rigged hooks means hooks that are baited, or only need to be baited,
in order to be fished. Unsecured, unbaited hooks and gangions are not
considered to be rigged.
Rockhopper and roller gear means trawl gear configured with disks,
rollers, or other similar shaped devices that are attached to the bottom
belly of the trawl, contact the sea bottom, and that are designed to
raise the bottom panel of the trawl off the ocean bottom so as to enable
the gear to be fished on hard bottom.
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually operated reel attached.
Roundfish gillnets means gillnets that are constructed with floats
on the float line and that have no tie-down twine between the float line
and the lead line.
Runaround gillnet or encircling gillnet means a rectangular net
placed upright in the water column in a circular fashion with an opening
equal to or less than 1/4 the length of the net or with an opening
greater than 1/4 the length of the net, if the opening is obstructed in
any fashion.
Scallop dredge vessel means any fishing vessel, other than a
combination vessel, that uses or is equipped to use scallop dredge gear.
Scup means Stenotomus chrysops.
Scup Monitoring Committee means a committee made up of staff
representative of the MAFMC, NEFMC, South Atlantic Fishery Management
Council, the NMFS Northeast Regional Office, the NEFSC, and the
Commission. The MAFMC Executive Director or a designee chairs the
committee.
Scup pot or trap means a pot or trap used in catching and retaining
scup.
Sea Scallop Plan Development Team (PDT) means a team of technical
experts appointed by the NEFMC.
Sea raven means Hemitripterus americanus.
Searobin means any species of the family Triglidae.
Shucking or to shuck means opening or to open a scallop, surf clam,
or ocean quahog and removing the meat or the adductor muscle from the
shell.
Shucking machine means any mechanical device that automatically
removes the meat or the adductor muscle from a scallop, surf clam, or
ocean quahog shell.
Sink gillnet or bottom-tending gillnet means any gillnet, anchored
or otherwise, that is designed to be, or is fished on or near, the
bottom in the lower third of the water column.
Skate means any species of the family Rajidae.
Small-mesh multispecies means the subset of Northeast multispecies
that
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includes silver hake, offshore hake, and red hake.
Smooth dogfish means Mustelis canis.
Sorting machine means any mechanical device that automatically sorts
whole scallops by shell height, size, or other physical characteristics.
Spiny dogfish means Squalus acanthias.
Spiny Dogfish Monitoring Committee means a committee made up of
staff representatives of the MAFMC, NEFMC, the NMFS Northeast Regional
Office, the Northeast Fisheries Science Center, and the states, as well
as two ex-officio industry members (one from each Council jurisdiction).
The MAFMC Executive Director or a designee chairs the committee.
Spot means Leiostomus xanthurus.
Square mesh, with respect to the NE multispecies fishery, means mesh
in which the horizontal bars of the mesh run perpendicular to the long
axis of the net so when the net is placed under a strain the mesh
remains open to a square-like shape. Square mesh can be formed by
hanging diamond mesh ``on the square,'' if the resulting mesh conforms
with the above description of square mesh.
Squid means Loligo pealei or Illex illecebrosus.
Standard tote means a box typically constructed of plastic, designed
to hold 100 lb (45.3 kg) of fish plus ice, and that has a liquid
capacity of 70 L, or a volume of not more than 4,320 cubic in (2.5 cubic
ft or 70.79 cubic cm).
Substantially similar harvesting capacity means the same or less GRT
and vessel length.
Summer flounder means Paralichthys dentatus.
Summer Flounder Monitoring Committee means a committee made up of
staff representatives of the MAFMC, NEFMC, and SAFMC, the NMFS Northeast
Regional Office, the NEFSC, the Southeast Science Center, and the
Commission. The MAFMC Executive Director or a designee chairs the
committee.
Surf clams means Atlantic surf clams of the species Spisula
solidissima.
Swordfish means Xiphias gladius.
Target total allowable catch (TAC) means the annual domestic harvest
targets for regulated species.
Tautog (blackfish) means Tautoga onitas.
Tied up to the dock or tying up at a dock means tied up at a dock,
on a mooring, or elsewhere in a harbor.
Tilefish means Lopholatilus chamaeleonticeps.
Total Length (TL) means the straight-line distance from the tip of
the snout to the end of the tail (caudal fin) while the fish is lying on
its side.
Transfer means to begin to remove, to remove, to pass over the rail,
or to otherwise take away fish from any vessel and move them to another
vessel.
Trawl means gear consisting of a net that is towed, including but
not limited to beam trawls, pair trawls, otter trawls, and Danish and
Scottish seine gear.
Trawl sweep means the total length of the footrope on a trawl net
that is directly attached to the webbing of a net.
Under construction means that the keel had been laid or the vessel
was under written agreement for construction or the vessel was under
written contract for purchase.
Upon returning to port, means, for purposes of the call-in
notification system for the NE multispecies and monkfish fisheries, upon
first tying up at a dock at the end of a fishing trip.
Vessel length means the length specified on the USCG documentation
for a vessel or on the state registration for a vessel not required to
be documented under title 46 U.S.C., if the state length is verified by
an authorized officer or NMFS official.
Vessel Monitoring System (VMS) means a vessel monitoring system or
VMS unit as set forth in Sec. 648.9 and approved by NMFS for use by
Atlantic sea scallop, NE multispecies, and monkfish vessels, as required
by this part.
VMS unit means a device installed on board a vessel used for vessel
monitoring and transmitting the vessel's position as required by this
part.
Weakfish means Cynoscion regalis.
Whiting means Merluccius bilinearis.
Whiting Monitoring Committee (WMC) means a team appointed by the
NEFMC to review, analyze, and recommend adjustments to the management
measures addressing small-mesh multispecies. The team consists of staff
from
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the NEFMC and MAFMC, NMFS Northeast Regional Office, the NEFSC, the
USCG, at least one industry representative from each geographical area
(northern New England, southern New England, and the Mid-Atlantic), and
no more than two representatives, appointed by the Commission, from
affected states.
[61 FR 34968, July 3, 1996]
Editorial Note: For Federal Register citations affecting Sec. 648.2,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 648.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705.
(b) Nothing in these regulations supersedes more restrictive state
management measures for any of the species referenced in Sec. 648.1 and,
for Atlantic salmon, more restrictive local management measures.
Sec. 648.4 Vessel and individual commercial permits.
(a) Fishery specific permit information. (1) NE multispecies
vessels. Except for vessels that have been issued a valid High Seas
Fishing Compliance permit, have declared their intent to fish, and fish
exclusively in the NAFO Regulatory Area as provided in Sec. 648.17, any
vessel of the United States, including a charter or party boat, must
have been issued and have on board a valid multispecies permit to fish
for, possess, or land multispecies finfish in or from the EEZ.
Multispecies frames used as, or to be used as, bait on a vessel fishing
exclusively with pot gear are deemed not to be multispecies finfish for
purposes of this part provided that there is a receipt for the purchase
of those frames on board the vessel.
(i) Limited access multispecies permits--(A) Eligibility. To be
eligible to apply for a limited access multispecies permit, as specified
in Sec. 648.82, a vessel must have been issued a limited access
multispecies permit for the preceding year, be replacing a vessel that
was issued a limited access multispecies permit for the preceding year,
or be replacing a vessel that was issued a confirmation of permit
history.
(B) Application/renewal restrictions. All limited access permits
established under this section must be issued on an annual basis by the
last day of the fishing year for which the permit is required, unless a
Confirmation of Permit History (CPH) has been issued as specified in
paragraph (a)(1)(i)(J) of this section. Application for such permits
must be received no later than 30 days before the last day of the
fishing year. Failure to renew a limited access permit in any fishing
year bars the renewal of the permit in subsequent years.
(C) Qualification restriction. Unless the Regional Administrator
determines otherwise, no more than one vessel may qualify, at any one
time, for a limited access permit or CPH based on that or another
vessel's fishing and permit history. If more than one vessel owner
claims eligibility for a limited access permit or CPH, based on one
vessel's fishing and permit history, the Regional Administrator will
determine who is entitled to qualify for the permit or CPH and any DAS
allocation according to paragraph (a)(1)(i)(D) of this section.
(D) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it 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 retaining the vessel's
fishing and permit history for purposes of replacing the vessel.
(E) Replacement vessels. To be eligible for a limited access permit
under this section, the replacement vessel must meet the following
criteria and any other applicable criteria under paragraph (a)(1)(i)(F)
of this section:
(1) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel's baseline specifications, as
applicable.
(2) The replacement vessel's length, GRT, and NT may not exceed by
more than 10 percent the length, GRT, and NT of the vessel's baseline
specifications, as applicable.
(F) Upgraded vessel. A vessel may be upgraded, whether through
refitting or replacement, and be eligible to retain or renew a limited
access permit, only
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if the upgrade complies with the following:
(1) The vessels's horsepower may be increased only once, whether
through refitting or replacement. Such an increase may not exceed 20
percent of the horsepower of the vessel's baseline specifications, as
applicable.
(2) The vessel's length, GRT, and NT may be increased only once,
whether through refitting or replacement. Any increase in any of these
three specifications of vessel size may not exceed 10 percent of the
vessel's baseline specifications, as applicable. If any of these three
specifications is increased, any increase in the other two must be
performed at the same time. This type of upgrade may be done separately
from an engine horsepower upgrade.
(G) Consolidation restriction. Limited access permits and DAS
allocations may not be combined or consolidated.
(H) Vessel baseline specifications. The vessel baseline
specifications in this section are the respective specifications
(length, GRT, NT, horsepower) of the vessel that was initially issued a
limited access permit as of the date the initial vessel applied for such
permit.
(I) Limited access permit restrictions. (1) A vessel may be issued a
limited access multispecies permit in only one category during a fishing
year. Vessels may not change limited access multispecies permit
categories during the fishing year, except as provided in paragraph
(a)(1)(i)(I)(2) of this section. A vessel issued a limited access
multispecies hook-gear permit may not change its limited access permit
category at any time.
(2) The owner of a vessel issued a limited access multispecies
permit may request a change in permit category, unless otherwise
restricted by paragraph (a)(1)(i)(I)(1) of this section. The owner of a
limited access multispecies vessel eligible to request a change in
permit category must elect a category upon the vessel's permit
application and will have one opportunity to request a change in permit
category by submitting an application to the Regional Administrator
within 45 days of the effective date of the vessel's permit. If such a
request is not received within 45 days, the vessel owner may not request
a change in permit category and the vessel permit category will remain
unchanged for the duration of the fishing year. A vessel may not fish in
more than one multispecies permit category during a fishing year.
(3) With the exception of combination vessels, sea scallop dredge
vessels are not eligible for limited access multispecies permits.
(J) Confirmation of permit history. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, must apply for and receive
a CPH if the fishing and permit history of such vessel has been retained
lawfully by the applicant. To be eligible to obtain a CPH, the applicant
must show that the qualifying vessel meets the eligibility requirements,
as applicable, in this part. Issuance of a valid CPH preserves the
eligibility of the applicant to apply for a limited access permit for a
replacement vessel based on the qualifying vessel's fishing and permit
history at a subsequent time, subject to the replacement provisions
specified in this section. If fishing privileges have been assigned or
allocated previously under this part, based on the qualifying vessel's
fishing and permit history, the CPH also preserves such fishing
privileges. A CPH must be applied for in order for the applicant to
preserve the fishing rights and limited access eligibility of the
qualifying vessel. An application for a CPH must be received by the
Regional Administrator no later than 30 days prior to the end of the
first full fishing year in which a vessel permit cannot be issued.
Failure to do so is considered abandonment of the permit as described in
paragraph (a)(1)(i)(K) of this section. A CPH issued under this part
will remain valid until the fishing and permit history preserved by the
CPH is used to qualify a replacement vessel for a limited access permit.
Any decision regarding the issuance of a CPH for a qualifying vessel
that has applied for or been issued previously a limited access permit
is a final agency action subject to judicial review under 5 U.S.C. 704.
Information requirements for the CPH application are the same as those
for a limited access permit.
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Any request for information about the vessel on the CPH application form
refers to the qualifying vessel that has been sunk, destroyed, or
transferred. Vessel permit applicants who have been issued a CPH and who
wish to obtain a vessel permit for a replacement vessel based upon the
previous vessel history may do so pursuant to paragraph (a)(1)(i)(E) of
this section.
(K) Abandonment or voluntary relinquishment of permit history. If a
vessel's limited access permit history for a particular fishery is
voluntarily relinquished to the Regional Administrator or abandoned
through failure to renew or otherwise, no limited access permit for that
fishery may be reissued or renewed based on that vessel's history or to
any other vessel relying on that vessel's history.
(L) Restriction on permit splitting. A limited access permit issued
pursuant to this section may not be issued to a vessel or its
replacement or remain valid, if the vessel's permit or fishing history
has been used to qualify another vessel for another Federal fishery.
(M) Appeal of denial of permit--(1) Eligibility. Any applicant
eligible to apply for a limited access multispecies permit who is denied
such permit may appeal the denial to the Regional Administrator within
30 days of the notice of denial. Any such appeal must be based on one or
more of the following grounds, must be in writing, and must state the
grounds for the appeal:
(i) The information used by the Regional Administrator was based on
mistaken or incorrect data.
(ii) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria.
(iii) The applicant has new or additional information.
(2) Appeal review. The Regional Administrator will appoint a
designee who will make the initial decision on the appeal. The appellant
may request a review of the initial decision by the Regional
Administrator by so requesting in writing within 30 days of the notice
of the initial decision. If the appellant does not request a review of
the initial decision within 30 days, the initial decision is the final
administrative action of the Department of Commerce. Such review will be
conducted by a hearing officer appointed by the Regional Administrator.
The hearing officer shall make findings and a recommendation to the
Regional Administrator which shall be advisory only. Upon receiving the
findings and the recommendation, the Regional Administrator will issue a
final decision on the appeal. The Regional Administrator's decision is
the final administrative action of the Department of Commerce.
(3) Status of vessels pending appeal. A vessel denied a limited
access multispecies permit may fish under the limited access
multispecies category, provided that the denial has been appealed, the
appeal is pending, and the vessel has on board a letter from the
Regional Administrator authorizing the vessel to fish under the limited
access category. The Regional Administrator will issue such a letter for
the pendency of any appeal. Any such decision is the final
administrative action of the Department of Commerce on allowable fishing
activity, pending a final decision on the appeal. The letter of
authorization must be carried on board the vessel. If the appeal is
finally denied, the Regional Administrator shall send a notice of final
denial to the vessel owner; the authorizing letter becomes invalid 5
days after receipt of the notice of denial.
(ii) Open access permits. A vessel of the United States that has not
been issued a limited access multispecies permit is eligible for and may
be issued an ``open access multispecies'', ``handgear'', or ``charter/
party'' permit and may fish for, possess on board, and land multispecies
finfish subject to the restrictions in Sec. 648.88. A vessel that has
been issued a valid limited access scallop permit, but that has not been
issued a limited access multispecies permit, is eligible for and may be
issued an open access scallop multispecies possession limit permit and
may fish for, possess on board, and land multispecies finfish subject to
the restrictions in Sec. 648.88. The owner of a vessel issued an open
access permit may request a different open access permit category by
submitting an application to the Regional Administrator at any time.
[[Page 272]]
(2) Atlantic sea scallop vessels-- Any vessel of the United States
that fishes for, possesses, or lands Atlantic sea scallops in quantities
greater than 40 lb (18.14 kg) shucked, or 5 bu (176.2 L) of in-shell
scallops per trip, except vessels that fish exclusively in state waters
for scallops, must have been issued and carry on board a valid scallop
permit.
(i) Limited access scallop permits. Any vessel of the United States
that possesses or lands more than 400 lb (181.44 kg) of shucked, or the
equivalent amount of in-shell scallops (50 bu (176.2 L)) per trip,
except vessels that fish exclusively in state waters for scallops, must
have been issued and carry on board a valid limited access scallop
permit.
(A) Eligibility. To be eligible to apply for a limited access
scallop permit, a vessel must have been issued a limited access scallop
permit for the preceding year, be replacing a vessel that was issued a
limited access scallop permit for the preceding year, or be replacing a
vessel that was issued a confirmation of permit history.
(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(1)(i)(H) of
this section.
(I) Limited access permit restrictions. A vessel may be issued a
limited access scallop permit in only one category during a fishing
year. The owner of a vessel issued a limited access scallop permit must
elect a permit category upon the vessels permit application and will
have one opportunity to request a change in permit category by
submitting an application to the Regional Administrator within 45 days
of the effective date of the vessel's permit. After this date, the
vessel must remain in that permit category for the duration of the
fishing year. Any DAS that a vessel uses prior to a change in permit
category will be counted against its allocation received under any
subsequent permit category.
(J) Confirmation of Permit History. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(M) Percentage ownership restrictions. (1) For any vessel acquired
after March 1, 1994, a vessel owner is not eligible to be issued a
limited access scallop permit for the vessel if the issuance of the
permit will result in the vessel owner, or in any other person who is a
shareholder or partner of the vessel owner, having an ownership interest
in limited access scallop vessels in excess of 5 percent of the number
of all limited access scallop vessels at the time of permit application.
(2) Vessel owners who were initially issued a 1994 limited access
scallop permit or were issued or renewed a limited access scallop permit
for a vessel in 1995 and thereafter, in compliance with the ownership
restrictions in paragraph (a)(2)(i)(M)(1) of this section, are eligible
to renew such permits(s), regardless of whether the renewal of the
permits will result in the 5- percent ownership restriction being
exceeded.
(3) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a vessel owned by a corporation, who are
partners (general or limited) to a vessel owner, or who, in any way,
partly own a vessel.
(ii) General scallop permit. Any vessel of the United States that is
not in possession of a limited access scallop permit, and that
possesses, or lands per trip, more than 40 lb (18.14 kg) and less than
or including 400 lb (181.44 kg) of shucked meats, or the equivalent
amount of in-shell scallops (5 and 50 bu (176.2 L and 176.2 L),
respectively), except vessels that fish exclusively in state waters for
scallops, must carry on board a valid general scallop permit.
(3) Summer flounder vessels. Any vessel of the United States that
fishes for or retains summer flounder in the EEZ must have been issued
and carry on board a valid summer flounder permit,
[[Page 273]]
except for vessels other than party or charter vessels that observe the
possession limit set forth in Sec. 648.105.
(i) Moratorium permits--(A) Eligibility. To be eligible to apply for
a moratorium permit to fish for and retain summer flounder in excess of
the possession limit in Sec. 648.105 in the EEZ, a vessel must have been
issued a summer flounder moratorium permit for the preceding year, be
replacing a vessel that was issued a moratorium permit for the preceding
year, or be replacing a vessel that was issued a confirmation of permit
history.
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. The vessel baseline
specifications in this section are the respective specifications
(length, GRT, NT, horsepower) of the vessel as of March 22, 1999, unless
the vessel is in the process of construction or rerigging or under
agreement or written contract for construction or rerigging, as of the
effective baseline specification date in which case the baseline
specifications will be established no later than February 19, 2000.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(ii) Party and charter boat permits. Any party or charter boat is
eligible for a permit to fish for summer flounder, other than a summer
flounder moratorium permit, if it is carrying passengers for hire. Such
vessel must observe the possession limits specified in Sec. 648.105.
(iii) Exemption permits. Owners of summer flounder vessels seeking
an exemption from the minimum mesh requirement under the provisions of
Sec. 648.104(b)(1) must apply to the Regional Administrator under
paragraph (c) of this section at least 7 days prior to the date they
wish the permit to become effective. The applicant must mark ``Exemption
Permit Request'' on the permit application at the top. A permit issued
under this paragraph (a)(3)(iii) does not meet the requirements of
paragraph (a)(3)(i) of this section, but is subject to the other
provisions of this section. Persons issued an exemption permit must
surrender it to the Regional Administrator at least 1 day prior to the
date they wish to fish not subject to the exemption. The Regional
Administrator may impose temporary additional procedural requirements by
publishing a notification in the Federal Register.
(4) Surf clam and ocean quahog vessels. Any vessel of the United
States that fishes for surf clams or ocean quahogs, except vessels
taking surf clams and ocean quahogs for personal use or fishing
exclusively within state waters, must have been issued and carry on
board a valid surf clam or ocean quahog permit, respectively.
(i) Maine mahogany quahog permit. (A) A vessel is eligible for a
Maine mahogany quahog permit to fish for ocean quahogs in the Maine
mahogany quahog zone if it meets the following eligibility criteria in
paragraphs (a)(1) and (a)(2) of this section, and an application for a
Maine mahogany quahog permit is submitted by May 19, 1999. After May 19,
1999, to be eligible to apply for a Maine mahogany quahog permit, a
vessel must have been issued a Maine mahogany quahog permit for the
preceding year, be replacing a vessel that was issued a Maine mahogany
quahog permit for the preceding year, or be replacing a vessel that was
issued a confirmation of permit history.
(1) The vessel was issued a Federal Maine Mahogany Quahog
Experimental Permit during one of the experimental fisheries authorized
by the Regional Administrator between September 30, 1990, and September
30, 1997; and,
(2) The vessel landed at least one Maine bushel of ocean quahogs
from the Maine mahogany quahog zone as documented by fishing or
shellfish logs submitted to the Regional Administrator prior to January
1, 1998.
[[Page 274]]
(B)Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(M) Appeal of denial of a permit. (1) Any applicant denied a Maine
mahogany quahog permit may appeal to the Regional Administrator within
30 days of the notice of denial. Any such appeal shall be in writing.
The only ground for appeal is that the Regional Administrator's designee
erred in concluding that the vessel did not meet the criteria in
paragraph (a)(4)(i)(A) of this section. The appeal must set forth the
basis for the applicant's belief that the decision of the Regional
Administrator's designee was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator.
(3) The hearing officer shall make a recommendation to the Regional
Administrator.
(4) The Regional Administrator will make a final decision based on
the criteria in paragraph (a)(4)(i)(A) of this section and on the
available record, including any relevant documentation submitted by the
applicant and, if a hearing is held, the recommendation of the hearing
officer. The decision on the appeal by the Regional Administrator is the
final decision of the Department of Commerce.
(ii) [Reserved]
(5) Mackerel, squid, and butterfish vessels. Any vessel of the
United States, including party and charter vessels, must have been
issued and carry on board a valid vessel permit to fish for, possess, or
land Atlantic mackerel, squid, or butterfish in or from the EEZ.
(i) Loligo squid/butterfish and Illex squid moratorium permits
(Illex squid moratorium is applicable from July 1, 1997, until July 1,
2002)--(A) Eligibility. To be eligible to apply for a moratorium permit
to fish for and retain Loligo squid, butterfish, or Illex squid in
excess of the incidental catch allowance in paragraph (a)(5)(ii) of this
section in the EEZ, a vessel must have been issued a Loligo squid and
butterfish moratorium permit or Illex squid moratorium permit, as
applicable, for the preceding year, be replacing a vessel that was
issued a moratorium permit for the preceding year, or be replacing a
vessel that was issued a confirmation of permit history.
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(ii) Squid/butterfish incidental catch permit. Any vessel of the
United States may obtain a permit to fish for or retain up to 2,500 lb
(1.13 mt) of Loligo squid or butterfish, or up to 5,000 lb (2.27 mt) of
Illex squid, as an incidental catch in another directed fishery. The
incidental catch allowance may be revised by the Regional Administrator
based upon a recommendation by the Council following the procedure set
forth in Sec. 648.21.
(iii) Atlantic mackerel permit. Any vessel of the United States may
obtain a permit to fish for or retain Atlantic mackerel in or from the
EEZ, except
[[Page 275]]
for vessels that exceed either 165 feet in length overall (LOA) and 750
gross registered tons, or a shaft horsepower of 3000 shp. Vessels that
exceed the size or horsepower restrictions may seek to obtain an at-sea
processing permit specified under Sec. 648.6(a)(2).
(iv) Party and charter boat permits. The owner of any party or
charter boat must obtain a permit to fish for or retain in or from the
EEZ mackerel, squid, or butterfish while carrying passengers for hire.
(6) Scup vessels. Beginning on January 1, 1997, and subject to the
eligibility requirements specified in paragraphs (a)(6)(i) and
(a)(6)(ii) of this section, the owner of a vessel of the United States,
including a party or charter vessel, must obtain a permit issued under
this part to fish for or retain scup for sale, barter or trade, in or
from the EEZ north of 35 deg.15.3' N. lat. Any vessel, other than a
party or charter boat, that observes the possession limit restrictions
established pursuant to, and the prohibition on sale specified in,
Sec. 648.125 is exempt from the permit requirement.
(i) Moratorium permit--(A) Eligibility. To be eligible to apply for
a moratorium permit to fish for and retain scup, a vessel must have been
issued a scup moratorium permit for the preceding year, be replacing a
vessel that was issued a scup moratorium permit for the preceding year,
or be replacing a vessel that was issued a confirmation of permit
history.
(B)Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L)Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(ii) Party and charter boat permit. Any party or charter boat is
eligible for a permit to fish for scup, other than a scup moratorium
permit, if it is carrying passengers for hire. Such vessel must observe
the possession limits established pursuant to, and the prohibitions on
sale specified in, Sec. 648.125.
(7) Black sea bass vessels. Beginning June 1, 1997, any vessel of
the United States that fishes for or retains black sea bass in or from
the EEZ north of 35 deg.15.3' N. lat., the latitude of Cape Hatteras
Light, NC, must have been issued and carry on board a valid black sea
bass moratorium permit, except for vessels other than party or charter
vessels that observe the possession limit established pursuant to
Sec. 648.145.
(i) Moratorium permits--(A) Eligibility. To be eligible to apply for
a moratorium permit to fish for and retain black sea bass in excess of
the possession limit established pursuant to Sec. 648.145 in the EEZ
north of 35 deg.15.3' N. Lat., the latitude of Cape Hatteras Light, NC,
a vessel must have been issued a black sea bass moratorium permit for
the preceding year, be replacing a vessel that was issued a black sea
bass moratorium permit for the preceding year, or be replacing a vessel
that was issued a confirmation of permit history.
(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
[[Page 276]]
(ii) Party and charter boat permit. The owner of any party or
charter boat must obtain a permit to fish for or retain black sea bass
in or from U.S. waters of the western Atlantic Ocean from 35 deg.15.3'
N. lat., the latitude of Cape Hatteras Light, NC, northward to the U.S.-
Canada border, while carrying passengers for hire.
(8) Atlantic bluefish vessels. (i) Commercial. Any vessel of the
United States including party and charter boats not carrying passengers
for hire, that fishes for, possesses, or lands Atlantic bluefish in or
from the EEZ in excess of the recreational possession limit specified at
Sec. 648.164 must have been issued and carry on board a valid commercial
bluefish vessel permit.
(ii) Party and charter vessels. Any party or charter boat must have
been issued and carry on board a valid party or charter boat permit to
fish for, possess, or land Atlantic bluefish in or from the EEZ if it is
carrying passengers for hire. Persons on board such vessel must observe
the possession limits established pursuant to Sec. 648.164, and the
prohibitions on sale specified in Sec. 648.14(w).
(9) Monkfish vessels. Any vessel of the United States, including a
charter or party boat, must have been issued and have on board a valid
monkfish permit to fish for, possess, or land any monkfish in or from
the EEZ.
(i) Limited access monkfish permits (effective November 8, 1999. (A)
Eligibility. A vessel may be issued a limited access monkfish permit if
it meets any of the following limited access monkfish permits criteria:
(1) Category A permit (vessels without multispecies or scallop
limited access permits). The vessel landed 50,000 lb (22,680
kg) tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish
between February 28, 1991, and February 27, 1995;
(2) Category B permit (vessels less than 51 gross registered tonnage
(GRT) without multispecies or scallop limited access permits that do not
qualify for a Category A permit). The vessel landed 7,500 lb
(3,402 kg) tail-weight or 24,900 lb (11,294.6 kg) whole weight of
monkfish between February 28, 1991, and February 27, 1995;
(3) Category C permit (vessels with multispecies or scallop limited
access permits). The vessel landed 50,000 lb (22,680 kg)
tail-weight or 166,000 lb (75,297.6 kg) whole weight of monkfish between
February 28, 1991, and February 27, 1995; or
(4) Category D permit (all vessels with multispecies limited access
permits and vessels less than 51 GRT with scallop limited access permits
that do not qualify for a Category C permit). The vessel landed
7,500 lb (3,402 kg) tail-weight or 24,900 lb (11,294.6 kg)
whole weight of monkfish between February 28, 1991, and February 27,
1995.
(B) Application/renewal restrictions. No one may apply for an
initial limited access monkfish permit for a vessel after November 7,
2000.
(C) Qualification restrictions. (1) See paragraph (a)(1)(i)(C) of
this section.
(2) Vessels under agreement for construction or under
reconstruction. A vessel may be issued a limited access monkfish permit
if the vessel was under written agreement for construction or
reconstruction between February 28, 1994, and February 27, 1995, and
such vessel meets any of the qualification criteria regarding amount of
landings as stated in paragraph (a)(9)(i)(A) of this section between
February 28, 1991, and February 27, 1996.
(D) Change in ownership. (1) See paragraph (a)(1)(i)(D) of this
section.
(2) A vessel may be issued a limited access monkfish permit if it
was under written agreement for purchase as of February 27, 1995 and
meets any of the qualification criteria regarding amount of landings as
stated in paragraph (a)(9)(i)(A) of this section between February 28,
1991, and February 27, 1996.
(E) Replacement vessels. (1) See paragraph (a)(1)(i)(E) of this
section.
(2) A vessel 51 GRT that lawfully replaced a vessel 51
GRT between February 27, 1995, and October 7, 1999, that meets the
qualification criteria set forth in paragraph (a)(9)(i)(A) of this
section, but exceeds the 51 GRT vessel size qualification criteria as
stated in paragraph (a)(9)(i)(A)(2) or (4) of this section, may qualify
for and fish under the permit category for which the replaced vessel
qualified.
(3) A vessel that replaced a vessel that fished for and landed
monkfish between February 28, 1991, and February 27, 1995, may use the
replaced vessel's
[[Page 277]]
history in lieu of or in addition to such vessel's fishing history to
meet the qualification criteria set forth in paragraph (a)(9)(i)(A)(1),
(2), (3), or (4) of this section, unless the owner of the replaced
vessel retained the vessel's permit or fishing history, or such vessel
no longer exists and was replaced by another vessel according to the
provisions in paragraph (a)(1)(i)(D) of this section.
(F) Upgraded vessel. (1) See paragraph (a)(1)(i)(F) of this section.
(2) A vessel 51 GRT that upgraded from a vessel size 51
GRT between February 27, 1995, and October 7, 1999, that meets any of
the qualification criteria set forth in paragraph (a)(9)(i)(A) of this
section, but exceeds the 51 GRT vessel size qualification criteria as
stated in paragraphs (a)(9)(i)(A)(2) and (4) of this section, may
qualify for and fish under the permit category of the smaller vessel.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specification. See paragraph (a)(1)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. A limited access monkfish
permit may not be issued to a vessel or to its replacement, or remain
valid, if the vessel's permit or fishing history has been used to
qualify another vessel for another Federal fishery.
(M) Notification of eligibility for 1999. (1) NMFS will attempt to
notify all owners of vessels for which NMFS has credible evidence
available that they meet the qualification criteria described in
paragraph (a)(9)(i)(A)(1), (2), (3), or (4) of this section and that
they qualify for a limited access monkfish permit. Vessel owners must
still apply within 12 months of the effective date of these regulations
to complete the qualification requirements.
(2) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access monkfish permit, and the vessel
owner believes that there is credible evidence that the vessel does
qualify under the pertinent criteria, the vessel owner may apply for a
limited access monkfish permit within 12 months of the effective date of
these regulations by submitting evidence that the vessel meets the
requirements described in paragraph (a)(9)(i)(A)(1), (2), (3), or (4) of
this section.
(N) Appeal of denial of permit. (1) Any applicant denied a limited
access monkfish permit may appeal to the Regional Administrator within
30 days of the notice of denial. Any such appeal shall be in writing.
The only ground for appeal is that the Regional Administrator erred in
concluding that the vessel did not meet the criteria in paragraph
(a)(9)(i)(A)(1), (2), (3), or (4) of this section. The appeal shall set
forth the basis for the applicant's belief that the Regional
Administrator's decision was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator. The
hearing officer shall make a recommendation to the Regional
Administrator. The Regional Administrator's decision on the appeal is
the final decision of the Department of Commerce.
(3) Status of vessels pending appeal. (i) A vessel denied a limited
access monkfish permit may fish under the monkfish DAS program, provided
that the denial has been appealed, the appeal is pending, and the vessel
has on board a letter from the Regional Administrator authorizing the
vessel to fish under the monkfish DAS program. The Regional
Administrator will issue such a letter for the pendency of any appeal,
which decision is the final administrative action of the Department of
Commerce pending a final decision on the appeal. The letter of
authorization must be carried on board the vessel. A vessel with such a
letter of authorization shall not exceed the annual allocation of
monkfish DAS as specified in Sec. 648.92(b)(1) and must report the use
of monkfish DAS according to the provisions of Sec. 648.10(b) or (c),
whichever applies. If the appeal is finally denied, the Regional
Administrator shall send a notice of final denial to the vessel owner;
the authorizing letter shall become invalid 5 days after receipt of
[[Page 278]]
the notice of denial. If the appeal is finally approved, any DAS used
during pendency of the appeal shall be deducted from the vessel's annual
allocation of monkfish DAS for that fishing year.
(ii) Monkfish incidental catch permits effective November 8, 1999. A
vessel of the United States that is subject to these regulations and
that has not been issued a limited access monkfish permit is eligible
for and may be issued a monkfish incidental catch permit to fish for,
possess, or land monkfish subject to the restrictions in Sec. 648.94(c).
(ii) [Reserved]
(10) [Reserved]
(11) Spiny dogfish vessels. Any vessel of the United States that
commercially fishes for, possesses, or lands spiny dogfish in or from
the EEZ must have been issued and carry on board a valid commercial
spiny dogfish vessel permit.
(b) Permit conditions. Any person who applies for a fishing permit
under this section must agree as a condition of the permit that the
vessel and the vessel's fishing activity, catch, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward of
the EEZ, and without regard to where such fish or gear are possessed,
taken or landed), are subject to all requirements of this part, unless
exempted from such requirements under this part. All such fishing
activities, catch, and gear will remain subject to all applicable state
requirements. Except as otherwise provided in this part, if a
requirement of this part and a management measure required by a state or
local law differ, any vessel owner permitted to fish in the EEZ for any
species managed under this part must comply with the more restrictive
requirement. Owners and operators of vessels fishing under the terms of
a summer flounder moratorium, scup moratorium, black sea bass moratorium
or bluefish commercial vessel permit must also agree not to land summer
flounder, scup, black sea bass, spiny dogfish, or bluefish,
respectively, in any state after NMFS has published a notification in
the Federal Register stating that the commercial quota for that state or
period has been harvested and that no commercial quota is available for
the respective species. A state not receiving an allocation of summer
flounder, scup, black sea bass, spiny dogfish, or bluefish, either
directly or through a coastwide allocation, is deemed to have no
commercial quota available. Owners or operators fishing for surf clams
and ocean quahogs within waters under the jurisdiction of any state that
requires cage tags are not subject to any conflicting Federal minimum
size or tagging requirements. If a surf clam and ocean quahog
requirement of this part differs from a surf clam and ocean quahog
management measure required by a state that does not require cage
tagging, any vessel owners or operators permitted to fish in the EEZ for
surf clams and ocean quahogs must comply with the more restrictive
requirement while fishing in state waters. However, surrender of a surf
clam and ocean quahog vessel permit by the owner by certified mail
addressed to the Regional Administrator allows an individual to comply
with the less restrictive state minimum size requirement, as long as
fishing is conducted exclusively within state waters. If the commercial
black sea bass quota for a period is harvested and the coast is closed
to the possession of black sea bass north of 35 deg.15.3' N. lat., any
vessel owners that hold valid commercial permits for both the black sea
bass and the NMFS Southeast Region Snapper-Grouper fisheries may
surrender their moratorium Black Sea Bass permit by certified mail
addressed to the Regional Administrator and fish pursuant to their
Snapper-Grouper permit, as long as fishing is conducted exclusively in
waters, and landings are made, south of 35 deg.15.3' N. lat. A
moratorium permit for the black sea bass fishery that is voluntarily
relinquished or surrendered will be reissued upon the receipt of the
vessel owner's written request after a minimum period of 6 months from
the date of cancellation.
(c) Permit applications--(1) General. Applicants for a permit under
this section must submit a completed application on an appropriate form
obtained from the Regional Administrator. The application must be signed
and submitted to the Regional Administrator at least 30 days before the
date on
[[Page 279]]
which the applicant desires to have the permit made effective. The
Regional Administrator will notify the applicant of any deficiency in
the application pursuant to this section. Vessel owners who are eligible
to apply for limited access or moratorium permits under this part shall
provide information with the application sufficient for the Regional
Administrator to determine whether the vessel meets the applicable
eligibility requirements specified in this section.
(2) Vessel permit information requirements. (i) An application for a
permit issued under this section, in addition to the information
specified in paragraph (c)(1) of this section, also must contain at
least the following information, and any other information required by
the Regional Administrator: Vessel name, owner name or name of the
owner's authorized representative, mailing address, and telephone
number; USCG documentation number and a copy of the vessel's current
USCG documentation or, for a vessel not required to be documented under
title 46 U.S.C., the vessel's state registration number and a copy of
the current state registration; a copy of the vessel's current party/
charter boat license (if applicable), home port and principal port of
landing, length overall, GRT, NT, engine horsepower, year the vessel was
built, type of construction, type of propulsion, approximate fish hold
capacity, type of fishing gear used by the vessel, number of crew,
number of party or charter passengers licensed to be carried (if
applicable), permit category, if the owner is a corporation, a copy of
the current Certificate of Incorporation or other corporate papers
showing the date of incorporation and the names of the current officers
of the corporation, and the names and addresses of all shareholders
owning 25 percent or more of the corporation's shares; if the owner is a
partnership, a copy of the current Partnership Agreement and the names
and addresses of all partners; if there is more than one owner, the
names of all owners having a 25-percent interest or more; and permit
number of any current or, if expired, previous Federal fishery permit
issued to the vessel.
(ii) An application for an initial limited access multispecies hook-
gear permit must also contain the following information:
(A) If the engine horsepower was changed or a contract to change the
engine horsepower had been entered into prior to July 1, 1996, such that
it is different from that stated in the vessel's most recent application
for a Federal fisheries permit before July 1, 1996, sufficient
documentation to ascertain the different engine horsepower. However, the
engine replacement must be completed within 1 year of the date on which
the contract was signed.
(B) If the length, GRT, or NT was changed or a contract to change
the length, GRT, or NT had been entered into prior to July 1, 1996, such
that it is different from that stated in the vessel's most recent
application for a Federal fisheries permit, sufficient documentation to
ascertain the different length, GRT, or NT. However, the upgrade must be
completed within 1 year from the date on which the contract was signed.
(iii) An application for a limited access multispecies permit must
also contain the following information: For vessels fishing for NE
multispecies with gillnet gear, with the exception of vessels fishing
under the Small Vessel permit category, an annual declaration as either
a Day or Trip gillnet vessel designation as described in Sec. 648.82(k).
A vessel owner electing a Day gillnet designation must indicate the
number of gillnet tags that he/she is requesting and must include a
check for the cost of the tags. A permit holder letter will be sent to
the owner of each eligible gillnet vessel informing him/her of the costs
associated with this tagging requirement and directions for obtaining
tags. Once a vessel owner has elected this designation, he/she may not
change the designation or fish under the other gillnet category for the
remainder of the fishing year. Incomplete applications, as described in
paragraph (e) of this section, will be considered incomplete for the
purpose of obtaining authorization to fish in the NE multispecies
gillnet fishery and will be processed without a gillnet authorization.
[[Page 280]]
(A) If applying for a limited access multispecies Combination Vessel
permit or Individual DAS category permit, or if opting to use a VMS, a
copy of the vendor installation rceipt from a NMFS-approved VMS vendor
as described in Sec. 648.9.
(B) For vessels fishing for NE multispecies with gillnet gear, with
the exception of vessels under the Small Vessel permit category, an
annual declaration as either a Day or Trip gillnet vessel designation as
described in Sec. 648.82(k). Vessel owners electing a Day gillnet
designation must indicate the number of gillnet tags that they are
requesting and must include a check for the cost of the tags. A permit
holder letter will be sent to all eligible gillnet vessels informing
them of the costs associated with this tagging requirement and
directions for obtaining tags. Once a vessel owner has elected this
designation, he/she may not change the designation or fish under the
other gillnet category for the remainder of the fishing year. Incomplete
applications, as described in paragraph (e) of this section, will be
considered incomplete for the purpose of obtaining authorization to fish
in the NE multispecies gillnet fishery and will be processed without a
gillnet authorization.
(iv) An application for a limited access scallop permit must also
contain the following information:
(A) For every person named by applicants for limited access scallop
permits pursuant to paragraph (c)(2)(i) of this section, the names of
all other vessels in which that person has an ownership interest and for
which a limited access scallop permit has been issued or applied for.
(B) If applying for full-time or part-time limited access scallop
permit, or if opting to use a VMS unit, though not required, a copy of
the vendor installation receipt from a NMFS-approved VMS vendor as
described in Sec. 648.9.
(C) If applying to fish under the small dredge program set forth
under Sec. 648.51(e), an annual declaration into the program.
(v) An application for a surf clam and ocean quahog permit must also
contain the pump horsepower.
(d) Fees. The Regional Administrator may charge a fee to recover
administrative expenses of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures of
the NOAA Finance Handbook, available from the Regional Administrator,
for determining administrative costs of each special product or service.
The fee may not exceed such costs and is specified with each application
form. The appropriate fee must accompany each application; if it does
not, the application will be considered incomplete for purposes of
paragraph (e) of this section. Any fee paid by an insufficiently funded
commercial instrument shall render any permit issued on the basis
thereof null and void.
(e) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the Regional Administrator shall issue a permit within 30 days of
receipt of the application, unless the application is deemed incomplete
for the following reasons:
(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 in Sec. 648.7;
(ii) The application was not received by the Regional Administrator
by the applicable deadline set forth in this section;
(iii) The applicant and applicant's vessel failed to meet all
applicable eligibility requirements set forth in this section;
(iv) The applicant applying for a limited access multispecies
combination vessel or individual DAS permit, a full-time or part-time
limited access scallop permit, or electing to use a VMS, has failed to
meet all of the VMS requirements specified in Secs. 648.9 and 648.10; or
(v) The applicant has failed to meet any other application
requirements stated in this part.
(2) Incomplete applications. Upon receipt of an incomplete or
improperly executed application for any permit under this part, the
Regional Administrator shall notify the applicant of the deficiency in
the application. If the applicant fails to correct the deficiency
[[Page 281]]
within 30 days following the date of notification, the application will
be considered abandoned.
(f) Change in permit information. Any change in the information
specified in paragraphs (c)(2) or (c)(3) of this section must be
submitted by the applicant in writing to the Regional Administrator
within 15 days of the change, or the permit is void.
(g) Expiration. A permit expires upon the renewal date specified in
the permit.
(h) Duration. A permit will continue in effect unless it is revoked,
suspended, or modified under 15 CFR part 904, or otherwise expires, or
ownership changes, or the applicant has failed to report any change in
the information on the permit application to the Regional Administrator
as specified in paragraph (f) of this section. However, the Regional
Administrator may authorize the continuation of a permit if the new
owner so requests. Applications for permit continuations must be
addressed to the Regional Administrator.
(i) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(j) Reissuance. A permit may be reissued by the Regional
Administrator when requested in writing, stating the need for
reissuance, the name of the vessel (if applicable), and the fishing
permit number assigned. An application for the reissuance of a permit
will not be considered a new application. The fee for a reissued permit
shall be the same as for an initial permit.
(k) Transfer. A permit issued under this part is not transferable or
assignable. A permit will be valid only for the fishing vessel, owner
and/or person for which it is issued.
(l) Display. A vessel permit must be carried, at all times, on board
the vessel for which it is issued and shall be subject to inspection
upon request by any authorized officer. A person issued a permit under
this section must be able to present the permit for inspection when
requested by an authorized officer. Permits must be maintained in
legible condition.
(m) Sanctions. The Assistant Administrator may suspend, revoke, or
modify, any permit issued or sought under this section. Procedures
governing enforcement-related permit sanctions or denials are found at
subpart D of 15 CFR part 904.
[61 FR 34968, July 3, 1996]
Editorial Note: For Federal Register citations affecting Sec. 648.4,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18.1 kg), NE multispecies, monkfish, surf
clam, ocean quahog, mackerel, squid, butterfish, scup, black sea bass,
spiny dogfish, or bluefish, harvested in or from the EEZ, or issued a
permit for these species under this part, must have been issued under
this section and carry on board, a valid operator's permit. An
operator's permit issued pursuant to part 697 of this chapter satisfies
the permitting requirement of this section. This requirement does not
apply to operators of recreational vessels.
(b) Operator permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
provided by the Regional Administrator. The application must be signed
by the applicant and submitted to the Regional Administrator at least 30
days before the date upon which the applicant desires to have the permit
made effective. The Regional Administrator will notify the applicant of
any deficiency in the application, pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree as a condition of this permit that the
operator and vessel's fishing, catch, crew size, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward of
the EEZ, and without regard to where such fish or gear are possessed,
taken, or landed) are subject to all requirements of this part while
fishing in the EEZ or on board a vessel for which a permit is issued
under Sec. 648.4, unless exempted from such requirements under
Sec. 648.12. The vessel and all such fishing, catch, and gear will
remain subject to all applicable state or local requirements. Further,
[[Page 282]]
such operators must agree, as a condition of this permit, that, if the
permit is suspended or revoked pursuant to 15 CFR part 904, the operator
cannot be aboard any fishing vessel issued a Federal fisheries permit or
any vessel subject to Federal fishing regulations while the vessel is at
sea or engaged in offloading. If a requirement of this part and a
management measure required by state or local law differ, any operator
issued a permit under this part must comply with the more restrictive
requirement.
(d) Information requirements. An applicant must provide at least all
the following information and any other information required by the
Regional Administrator: Name, mailing address, and telephone number;
date of birth; hair color; eye color; height; weight; and signature of
the applicant. The applicant must also provide two recent (no more than
1 year old), color, passport-size photographs.
(e) Fees. Same as Sec. 648.4(d).
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Administrator shall issue an operator's permit within 30
days of receipt of a completed application, if the criteria specified
herein are met. Upon receipt of an incomplete or improperly executed
application, the Regional Administrator will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. Same as Sec. 648.4(g).
(h) Duration. A permit is valid until it is revoked, suspended or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Administrator as specified in paragraph (k)
of this section.
(i) Reissuance. Reissued permits, for otherwise valid permits, may
be issued by the Regional Administrator when requested in writing by the
applicant, stating the need for reissuance and the Federal operator
permit number assigned. An applicant for a reissued permit must also
provide two recent, color, passport-size photos of the applicant. An
application for a reissued permit will not be considered a new
application. An appropriate fee may be charged.
(j) Transfer. Permits issued under this part are not transferable or
assignable. A permit is valid only for the person to whom it is issued.
(k) Change in permit application information. Notice of a change in
the permit holder's name, address, or telephone number must be submitted
in writing to, and received by, the Regional Administrator within 15
days of the change in information. If written notice of the change in
information is not received by the Regional Administrator within 15
days, the permit is void.
(l) Alteration. Same as Sec. 648.4(i).
(m) Display. Any permit issued under this part must be maintained in
legible condition and displayed for inspection upon request by any
authorized officer or NMFS official.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be aboard a federally permitted fishing vessel in any capacity
while the vessel is at sea or engaged in offloading. Procedures
governing enforcement related permit sanctions and denials are found at
subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
[61 FR 34968, July 3, 1996, as amended at 61 FR 43425, Aug. 23, 1996; 61
FR 58465, Nov. 15, 1996; 64 FR 57593, Oct. 26, 1999; 64 FR 66587, Nov.
29, 1999; 65 FR 45851, July 26, 2000]
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, monkfish, sea scallop, summer
flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,
black sea bass, spiny dogfish, or bluefish dealers and surf clam and
ocean quahog processors must have been issued under this section, and
have in their possession, a valid permit for these species.
(b) Dealer/processor permit applications. Same as Sec. 648.5(b).
(c) Information requirements. Applications must contain at least the
following information, as applicable, and any other information required
by the Regional Administrator: Company
[[Page 283]]
name, place(s) of business (principal place of business if applying for
a surf clam and ocean quahog permit), mailing address(es) and telephone
number(s), owner's name, dealer permit number (if a renewal), name and
signature of the person responsible for the truth and accuracy of the
application, a copy of the certificate of incorporation if the business
is a corporation, and a copy of the partnership agreement and the names
and addresses of all partners, if the business is a partnership, name of
at-sea processor vessel, and current vessel documentation papers.
(d) Fees. Same as Sec. 648.4(d).
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Administrator will issue a permit at any time during the
fishing year to an applicant, unless the applicant fails to submit a
completed application. An application is complete when all requested
forms, information, and documentation have been received and the
applicant has submitted all applicable reports specified in Sec. 648.7
during the 12 months immediately preceding the application. Upon receipt
of an incomplete or improperly executed application, the Regional
Administrator will notify the applicant of the deficiency in the
application. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(f) Expiration. Same as Sec. 648.4(g).
(g) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or ownership
changes, or the applicant has failed to report any change in the
information on the permit application to the Regional Administrator as
required by paragraph (j) of this section.
(h) Reissuance. Reissued permits, for otherwise valid permits, may
be issued by the Regional Administrator when requested in writing by the
applicant, stating the need for reissuance and the Federal dealer permit
number assigned. An application for a reissued permit will not be
considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this part are not transferable or
assignable. A permit is valid only for the person to whom, or other
business entity to which, it is issued.
(j) Change in application information. Same as Sec. 648.5(k).
(k) Alteration. Same as Sec. 648.4(i).
(l) Display. Same as Sec. 648.5(m).
(m) Federal versus state requirements. If a requirement of this part
differs from a fisheries management measure required by state law, any
dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Same as Sec. 648.4(m).
[61 FR 34968, July 3, 1996, as amended at 61 FR 43425, Aug. 23, 1996; 61
FR 58465, Nov. 15, 1996; 64 FR 57593, Oct. 26, 1999; 65 FR 45851, July
26, 2000]
Sec. 648.7 Recordkeeping and reporting requirements.
(a) Dealers--(1) Detailed weekly report. Federally permitted dealers
must submit to the Regional Administrator or to the official designee a
detailed weekly report, within the time periods specified in paragraph
(f) of this section, on forms supplied by or approved by the Regional
Administrator and a report of all fish purchases, except surf clam and
ocean quahog dealers or processors who are required to report only surf
clam and ocean quahog purchases. If authorized in writing by the
Regional Administrator, dealers may submit reports electronically or
through other media. The following information, and any other
information required by the Regional Administrator, must be provided in
the report:
(i) All dealers issued a dealer permit under this part, with the
exception of those utilizing the surf clam or ocean quahog dealer
permit, must provide: Dealer name and mailing address; dealer permit
number; name and permit number or name and hull number (USCG
documentation number or state registration number, which ever is
applicable) of vessels from which fish are landed or received; trip
identifier for a trip from which fish are landed or received; dates of
purchases; pounds by species (by market category, if applicable); price
per pound by species (by market category, if applicable) or total value
by species (by market category,
[[Page 284]]
if applicable); port landed; signature of person supplying the
information; and any other information deemed necessary by the Regional
Administrator. The dealer or other authorized individual must sign all
report forms. If no fish are purchased during a reporting week, no
written report is required to be submitted. If no fish are purchased
during an entire reporting month, a report so stating on the required
form must be submitted.
(ii) Surf clam and ocean quahog processors and dealers must provide:
Date of purchase or receipt; name, permit number and mailing address;
number of bushels by species; cage tag numbers; allocation permit
number; vessel name and permit number; price per bushel by species.
Dealers must also report disposition of surf clams or ocean quahogs,
including name and permit number of recipients. Processors must also
report size distribution and meat yield per bushel by species.
(2) Weekly IVR system reports. (i) Federally permitted dealers
purchasing quota-managed species not deferred from coverage by the
Regional Administrator pursuant to paragraph (a)(2)(ii) of this section
must submit, within the time period specified in paragraph (f) of this
section, the following information, and any other information required
by the Regional Administrator, to the Regional Administrator or to an
official designee, via the IVR system established by the Regional
Administrator: Dealer permit number; dealer code; pounds purchased, by
species; reporting week in which species were purchased; and state of
landing for each species purchased. If no purchases of quota-managed
species not deferred from coverage by the Regional Administrator
pursuant to paragraph (a)(2)(ii) of this section were made during the
week, a report so stating must be submitted through the IVR system in
accordance with paragraph (f) of this section.
(ii) The Regional Administrator may defer any quota-managed species
from the IVR system reporting requirements if landings are not expected
to reach levels that would cause the applicable target exploitation rate
corresponding to a given domestic annual harvest limit, target or actual
TAC, or annual or seasonal quota specified for that species to be
exceeded. The Regional Administrator shall base any such determination
on the purchases reported, by species, in the comprehensive written
reports submitted by dealers and other available information. If the
Regional Administrator determines that any quota-managed species should
be deferred from the weekly IVR system reporting requirements, the
Regional Administrator shall publish notification so stating in the
Federal Register. If data indicate that landing levels have increased to
an extent that this determination ceases to be valid, the Regional
Administrator shall terminate the deferral by publishing notification in
the Federal Register.
(3) Annual report. All persons required to submit reports under
paragraph (a)(1) of this section are required to submit the following
information on an annual basis, on forms supplied by the Regional
Administrator:
(i) All dealers issued a dealer permit under this part, with the
exception of those processing only surf clams or ocean quahogs, must
complete the ``Employment Data'' section of the Annual Processed
Products Report; completion of the other sections of that form is
voluntary. Reports must be submitted to the address supplied by the
Regional Administrator.
(ii) Surf clam and ocean quahog processors and dealers must provide
the average number of processing plant employees during each month of
the year just ended; average number of employees engaged in production
of processed surf clam and ocean quahog products, by species, during
each month of the year just ended; plant capacity to process surf clam
and ocean quahog shellstock, or to process surf clam and ocean quahog
meats into finished products, by species; an estimate, for the next
year, of such processing capacities; and total payroll for surf clam and
ocean quahog processing, by month. If the plant processing capacities
required to be reported in this paragraph (a)(3)(ii) change more than 10
percent during any year, the processor shall notify the Regional
Administrator in writing within 10 days after the change.
(b) Vessel owners or operators.--(1) Fishing Vessel Trip Reports--
(i) The
[[Page 285]]
owner or operator of any vessel issued a permit under this part must
maintain on board the vessel, and submit, an accurate daily fishing log
report for all fishing trips, regardless of species fished for or taken,
on forms supplied by or approved by the Regional Administrator. If
authorized in writing by the Regional Administrator, a vessel owner or
operator may submit reports electronically, for example by using a VMS
or other media. With the exception of those vessel owners or operators
fishing under a surf clam or ocean quahog permit, at least the following
information and any other information required by the Regional
Administrator must be provided: Vessel name, USCG documentation number
(or state registration number, if undocumented); permit number; date/
time sailed; date/time landed; trip type; number of crew; number of
anglers (if a charter or party boat); gear fished; quantity and size of
gear; mesh/ring size; chart area fished; average depth; latitude/
longitude (or loran station and bearings); total hauls per area fished;
average tow time duration; pounds by species (or count, if a party or
charter vessel) of all species landed or discarded; dealer permit
number; dealer name; date sold; port and state landed; and vessel
operator's name, signature, and operator's permit number (if
applicable).
(ii) Surf clam and ocean quahog vessel owners and operators. The
owner or operator of any vessel conducting any surf clam and ocean
quahog fishing operations, except those conducted exclusively in waters
of a state that requires cage tags or when he/she has surrendered the
surf clam and ocean quahog fishing vessel permit, shall maintain, on
board the vessel, an accurate daily fishing log for each fishing trip,
on forms supplied by the Regional Administrator, showing at least: Name
and permit number of the vessel, total amount in bushels of each species
taken, date(s) caught, time at sea, duration of fishing time, locality
fished, crew size, crew share by percentage, landing port, date sold,
price per bushel, buyer, tag numbers from cages used, quantity of surf
clams and ocean quahogs discarded, and allocation permit number.
(c) When to fill out a log report. Log reports required by paragraph
(b)(1)(i) of this section must be filled out, except for information
required but not yet ascertainable, before offloading or landing has
begun. All information must be filled out before starting the next
fishing trip. Log reports required by paragraph (b)(1)(ii) of this
section must be filled out before landing any surf clams or ocean
quahogs.
(d) Inspection. All persons required to submit reports under this
section, upon the request of an authorized officer, or by an employee of
NMFS designated by the Regional Administrator to make such inspections,
must make immediately available for inspection copies of the required
reports that have been submitted, or should have been submitted, and the
records upon which the reports were based. At any time during or after a
trip, owners and operators must make immediately available for
inspection the fishing log reports currently in use, or to be submitted.
(e) Record retention. Copies of reports, and records upon which the
reports were based, must be retained and be available for review for 1
year after the date of the last entry on the report. Copies of fishing
log reports must be retained and available for review for 1 year after
the date of the last entry on the log. Dealers must retain required
reports and records at their principal place of business.
(f) Submitting reports--(1) Dealer or processor reports. (i)
Detailed weekly trip reports, required by paragraph (a)(1) of this
section, must be postmarked or received within 16 days after the end of
each reporting week. If no fish are purchased during a reporting month,
the report so stating required under paragraph (a)(1)(i) of this section
must be postmarked or received within 16 days after the end of the
reporting month.
(ii) Weekly IVR system reports required in paragraph (a)(2) of this
section must be submitted via the IVR system by midnight, Eastern time,
each Tuesday for the previous reporting week.
(iii) Annual reports for a calendar year must be postmarked or
received by February 10 of the following year. Contact the Regional
Administrator
[[Page 286]]
(see Table 1 to Sec. 600.502) for the address of NMFS Statistics.
(2) Fishing vessel log reports. Fishing log reports must be received
or postmarked, if mailed, within 15 days after the end of the reporting
month. Each owner will be sent forms and instructions, including the
address to which reports are to be submitted, shortly after receipt of a
Federal fisheries permit. If no fishing trip is made during a month, a
report stating so must be submitted.
(3) At-sea purchasers, receivers, or processors. All persons
purchasing, receiving, or processing any mackerel, or squid, or
butterfish, or scup, or black sea bass at sea for landing at any port of
the United States must submit information identical to that required by
paragraph (a)(1), (a)(2), or (a)(3) of this section, as applicable, and
provide those reports to the Regional Administrator or designee on the
same frequency basis.
(g) Additional data and sampling. Federally permitted dealers must
allow access to their premises and make available to an official
designee of the Regional Administrator any fish purchased from vessels
for the collection of biological data. Such data include, but are not
limited to, length measurements of fish and the collection of age
structures such as otoliths or scales.
[61 FR 34968, July 3, 1996, as amended at 61 FR 43425, Aug. 23, 1996; 61
FR 58465, Nov. 15, 1996; 62 FR 14646, Mar. 27, 1997; 63 FR 52640, Oct.
1, 1998; 63 FR 58329, Oct. 30, 1998; 64 FR 57593, Oct. 26, 1999; 65 FR
1569, Jan. 11, 2000; 65 FR 45851, July 26, 2000]
Sec. 648.8 Vessel identification.
(a) Vessel name and official number. Each fishing vessel subject to
this part and over 25 ft (7.6 m) in registered length must:
(1) Affix permanently its name on the port and starboard sides of
the bow and, if possible, on its stern.
(2) Display its official number on the port and starboard sides of
the deckhouse or hull, and on an appropriate weather deck so as to be
clearly visible from enforcement vessels and aircraft. The official
number is the USCG documentation number or the vessel's state
registration number for vessels not required to be documented under
title 46 U.S.C.
(b) Numerals. Except as provided in paragraph (d) of this section,
the official number must be displayed in block arabic numerals in
contrasting color at least 18 inches (45.7 cm) in height for fishing
vessels over 65 ft (19.8 m) in registered length, and at least 10 inches
(25.4 cm) in height for all other vessels over 25 ft (7.6 m) in
registered length. The registered length of a vessel, for purposes of
this section, is that registered length set forth in USCG or state
records.
(c) Duties of owner. The owner of each vessel subject to this part
shall ensure that--
(1) The vessel's name and official number are kept clearly legible
and in good repair.
(2) No part of the vessel, its rigging, its fishing gear, or any
other object obstructs the view of the official number from any
enforcement vessel or aircraft.
(d) Non-permanent marking. Vessels carrying recreational fishing
parties on a per capita basis or by charter must use markings that meet
the above requirements, except for the requirement that they be affixed
permanently to the vessel. The non-permanent markings must be displayed
in conformity with the above requirements.
(e) New Jersey surf clam or ocean quahog vessels. Instead of
complying with paragraph (a) of this section, surf clam or ocean quahog
vessels licensed under New Jersey law may use the appropriate vessel
identification markings established by that state.