14884 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket 110112022–1025–02] 

RIN 0648–BA45 

Atlantic Highly Migratory Species; 

Modification of the Retention of 

Incidentally-Caught Highly Migratory 

Species in Atlantic Trawl Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments; notice of public hearings. 

SUMMARY: This proposed rule would 

modify the permitting and retention 

requirements for Atlantic highly 

migratory species (HMS) to address the 

incidental catch of North Atlantic 

swordfish in squid trawl fisheries, and 

the incidental catch of species in the 

smoothhound shark complex (which 

includes smooth dogfish and Florida 

smoothhound (genus Mustelus) in all 

Atlantic trawl fisheries. The action 

would reduce regulatory discards of 

incidentally-caught HMS in the Illex 

squid trawl fishery by establishing a 

new Incidental HMS Squid Trawl 

permit, and improve reporting and 

compliance with HMS regulations in 

Atlantic squid trawl fisheries. The 

proposed rule would also address 

regulatory discards of incidentallycaught species in the smoothhound 

shark complex by establishing a 

retention limit for smoothhound sharks 

in all Atlantic trawl fisheries. The 

proposed actions are necessary to 

achieve domestic management 

objectives under the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act), and to 

implement the 2006 Consolidated HMS 

Fishery Management Plan (Consolidated 

HMS FMP), including objectives in the 

FMP to monitor and control all 

components of fishing mortality, both 

directed and incidental, so as to ensure 

the long-term sustainability of HMS 

stocks, and to provide the data 

necessary for assessing HMS fish stocks 

and managing HMS, including 

addressing inadequacies in current data 

collection and the ongoing collection of 

economic and bycatch data in Atlantic 

HMS fisheries. 

DATES: Written comments must be 

received on or before April 17, 2011. 

The public hearing dates are: 

1. March 21, 2011, 1 p.m. to 3 p.m., 

Gloucester, MA 

2. March 22, 2011, 4:30 p.m. to 6:30 

p.m., Barnegat, NJ 

3. March 28, 2011, 5 p.m. to 7 p.m., 

Manteo, NC 

4. April 6, 2011, 8:30 a.m. to 10 a.m., 

Silver Spring, MD 

5. April 13, 2011, 11 a.m. to 12 p.m., 

Annapolis, MD 

ADDRESSES: The public hearings will be 

held at the NMFS Northeast Regional 

Office, 55 Great Republic Drive, 

Gloucester, MA, 01930; Ocean County 

Library (Barnegat Branch), 112 Burr 

Street, Barnegat, NJ, 08005; Manteo 

Town Hall, 407 Budleigh St., Manteo, 

NC, 27954; HMS Advisory Panel (AP) 

Meeting, Crowne Plaza Hotel, 8777 

Georgia Ave., Silver Spring, MD, 20910; 

Mid-Atlantic Fishery Management 

Council (MAFMC) Meeting, Historic Inn 

of Annapolis, 58 State Circle, 

Annapolis, MD, 21401. 

You may submit comments, identified 

by ‘‘0648–BA45,’’ by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov 

• Fax: 301–713–1917, Attn: Margo 

Schulze-Haugen 

• Mail: National Marine Fisheries 

Service, c/o HMS Management Division, 

SF/1, 1315 East-West Highway, Silver 

Spring, MD 20910. Please mark the 

outside of the envelope ‘‘Comments on 

Proposed Rule to Modify the Retention 

of Incidentally-Caught HMS in Atlantic 

Trawl Fisheries.’’ 

• Instructions: All comments received 

are part of the public record and 

generally will be posted to Portal 

http://www.regulations.gov without 

change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive information. 

NMFS will accept anonymous 

comments (enter ‘‘N/A’’ in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Supporting documents, including the 

draft Environmental Assessment (EA), 

Regulatory Impact Review (RIR), and 

Initial Regulatory Flexibility Analysis 

(IRFA) for this action are available 

online at the HMS Management 

Division Web site: http:// 

www.nmfs.noaa.gov/sfa/hms/. 

FOR FURTHER INFORMATION CONTACT: 

Richard A. Pearson at 727–824–5399, 

Steve Durkee at 202–670–6637, or 

Delisse Ortiz at 301–713–2347. 

SUPPLEMENTARY INFORMATION: North 

Atlantic swordfish and smoothhound 

shark species are managed under the 

authority of the Magnuson-Stevens Act, 

and swordfish are also managed under 

the authority of the Atlantic Tunas 

Convention Act (ATCA), which 

authorizes the Secretary of Commerce 

(Secretary) to promulgate regulations as 

may be necessary and appropriate to 

implement recommendations of the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT). 

The authority to issue regulations under 

the Magnuson-Stevens Act and ATCA 

has been delegated from the Secretary to 

the Assistant Administrator for 

Fisheries, NOAA (AA). On May 28, 

1999, NMFS published in the Federal 

Register (64 FR 29090) final regulations, 

effective July 1, 1999, implementing the 

Fishery Management Plan for Atlantic 

Tunas, Swordfish, and Sharks (1999 

FMP). On October 2, 2006, NMFS 

published in the Federal Register (71 

FR 58058) final regulations, effective 

November 1, 2006, implementing the 

2006 Consolidated HMS FMP, which 

details the management measures for 

Atlantic HMS fisheries. The 

implementing regulations for the 

Consolidated HMS FMP and its 

amendments for Atlantic HMS are at 50 

CFR part 635. 

I. Background 

NMFS is issuing this proposed rule to 

address the permitting requirements for, 

and retention of, incidentally-caught 

HMS in Atlantic trawl fisheries. The 

proposed actions are necessary to 

achieve domestic management 

objectives under the Magnuson-Stevens 

Act and ATCA, and to implement the 

Consolidated HMS FMP and its 

amendments. This includes objectives 

in the FMP to monitor and control all 

components of fishing mortality, both 

directed and incidental, so as to ensure 

the long-term sustainability of HMS 

stocks, and to provide the data 

necessary for assessing HMS fish stocks 

and managing HMS, including 

addressing inadequacies in current data 

collection and the ongoing collection of 

economic and bycatch data in Atlantic 

HMS fisheries. This proposed rule 

addresses two separate, but related, 

issues regarding the retention of 

incidentally-caught HMS in trawl 

fisheries to achieve these objectives: 

(1) The retention of incidentally-caught 

swordfish in the Illex squid trawl 

fishery; and, (2) the retention of 

incidentally-caught species in the 

smoothhound shark complex (including 


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smooth dogfish and Florida 

smoothhound (genus Mustelus)) in all 

Atlantic trawl fisheries. 

Retention of Incidentally-Caught 

Swordfish in Squid Trawl Fisheries 

Limited access permits (LAPs) in the 

North Atlantic commercial swordfish 

fishery were first implemented during 

1999–2000. These LAPs were issued 

based, in part, upon a vessel’s swordfish 

landings history. At the time, some 

squid trawl vessels qualified for a 

swordfish LAP, but many did not for a 

variety of reasons (including a lack of 

documented swordfish landings or 

income from swordfish). Under current 

regulations, vessels intending to legally 

land North Atlantic swordfish with gear 

other than handgear, including squid 

trawl vessels, must be issued a 

swordfish LAP, a shark LAP, and an 

Atlantic Tunas Longline LAP (the ‘‘HMS 

permit triple-pack’’). The requirement to 

possess three LAPs was primarily 

intended for pelagic longline (PLL) 

vessels, because of the high likelihood 

of catching swordfish, sharks, and tunas 

when fishing with PLL gear. Because 

some squid trawl vessels did not apply 

for, or qualify for, the ‘‘HMS permit 

triple-pack,’’ these vessels have had to 

discard any swordfish captured 

incidentally by their squid trawls. Due 

to physical trauma, most of the 

swordfish caught in trawl nets are 

brought onboard dead or die soon 

afterwards. 

While the use of trawl gear is not 

authorized for any HMS fisheries, the 

current regulations provide for the 

incidental retention of up to 15 

swordfish per trip in the squid trawl 

fishery, provided that the vessel has 

been issued the ‘‘HMS permit triplepack’’ that is required to retain 

swordfish. Under no circumstances, 

however, may a squid trawl vessel 

retain sharks (aside from smoothhound 

sharks) or tunas because trawl gear is 

not authorized for these species, and 

there is no exemption for these species 

for squid trawls. Under the HMS 

regulations, 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 

constitutes not less than 75 percent by 

weight of the total retained catch. An 

analysis of the Northeast Vessel Trip 

Report (VTR) data indicates that 

swordfish are frequently discarded by 

squid trawl vessels. Because swordfish 

are incidentally-caught during normal 

squid trawl fishing operations, and the 

regulations allow for retention only if 

the vessel has been issued the ‘‘HMS 

permit triple-pack,’’ the current permit 

requirements may be inadvertently 

contributing to regulatory dead discards 

of swordfish. When PLL gear is 

deployed, swordfish, sharks, and tunas 

are all likely to be caught. However, 

trawl gear is different from PLL gear, 

and incidentally-caught swordfish in 

squid trawl gear constitute a very small 

component of the overall catch. 

Therefore, the rationale which 

prompted NMFS to require the issuance 

of swordfish, shark, and Atlantic Tunas 

Longline LAPs in order to land 

swordfish is not as likely to be 

applicable to squid trawl vessels as it is 

for PLL vessels. 

Squid trawl vessel owners that were 

not initially issued the three LAPs 

required to retain swordfish can 

currently obtain the permits by 

purchasing them and transferring the 

permits to their vessels. However, this is 

not a practical solution because 

swordfish are a very small component of 

the overall catch in the squid trawl 

fishery and the ‘‘HMS permit triplepack’’ is often expensive, making it a 

poor investment for squid trawl vessels, 

and one that may take several years to 

recoup. The HMS permit structure is 

also problematic for squid trawl vessels 

because swordfish dead discards could 

be a source of revenue for U.S. 

fishermen. Swordfish caught 

incidentally by trawl gear are usually 

brought on board dead, or die soon 

afterwards. 

NMFS has received an increasing 

number of comments, primarily from 

squid trawl vessel owners, requesting 

reconsideration of the three-permit 

requirement for squid trawl vessels. The 

current HMS permit structure (i.e., the 

‘‘HMS permit triple-pack’’) is believed 

by these commenters to be burdensome, 

confusing, and unnecessary since squid 

trawl vessels do not fish with PLL gear. 

Allowing for the retention of 

incidentally-caught swordfish by squid 

trawl vessels would also enable a more 

thorough utilization of the available 

U.S. swordfish quota, which has been 

consistently underharvested in recent 

years. As a result of suggestions 

received at the 2009 HMS AP meeting 

and in constituent correspondence, 

NMFS published an Advanced Notice of 

Proposed Rulemaking (ANPR) (74 FR 

26174, June 1, 2009) requesting 

comments on, among other items, 

potential regulatory changes that would 

increase fishing opportunities to harvest 

the U.S. swordfish quota. NMFS 

specifically requested comments on a 

potential exemption for squid trawl 

vessels from the multi-permit 

requirement to retain incidentallycaught swordfish. During the comment 

period, the majority of the comments 

supported some type of multi-permit 

exemption for squid trawl vessels. 

Consequently, in this proposed rule, 

NMFS considers various alternatives 

that would allow squid trawl vessels to 

retain swordfish without the need for 

the ‘‘HMS permit triple-pack.’’ 

Following consideration of the 

comments received on the 2009 ANPR, 

and at the 2009 and 2010 HMS AP 

meetings, and in ongoing consultation 

with MAFMC staff, NMFS proposes to 

establish a new Incidental HMS Squid 

Trawl permit available to all vessel 

owners issued a valid Illex squid 

moratorium permit. It would allow for 

the retention, possession, and sale of up 

to 15 swordfish per trip (the current trip 

limit for squid trawl vessels that have 

been issued the ‘‘HMS permit triplepack’’) for all vessels in the squid trawl 

fishery issued the new permit. 

Establishment of a Retention Limit for 

Incidentally-Caught Smoothhound 

Sharks in Trawl Fisheries 

On June 1, 2010, NMFS published a 

final rule (75 FR 30484, June 1, 2010) 

implementing Amendment 3 to the 

Consolidated HMS FMP (Amendment 

3). In Amendment 3 (75 FR 30484, June 

1, 2010), NMFS determined that smooth 

dogfish is an oceanic shark and should 

be managed under the Secretary’s 

authority because of the wide 

distribution of smooth dogfish and 

because their range extends into the 

jurisdictions of more than one of the 

five regional Atlantic fishery 

management councils. NMFS 

determined that, based on existing data, 

the smooth dogfish fishery was 

substantial with average annual 

landings of 431 mt dressed weight (dw), 

which was among the highest for any 

Atlantic species of shark managed by 

NMFS. It was decided that sound 

science-based conservation and 

management was necessary to provide 

for long-term sustainable yield from the 

stock. 

During the development of 

Amendment 3, emerging molecular and 

morphological research determined that 

Florida smoothhounds (Mustelus 

norrisi) had been historically 

misclassified as a separate species from 

smooth dogfish. Additionally, NMFS’ 

Southeast Fisheries Science Center 

(SEFSC) advised that there were 

insufficient data at the time to separate 

smooth dogfish and Florida 

smoothound stocks, and that they 

should be treated as a single stock 

complex until scientific evidence 

indicated otherwise. Accordingly, 

because of this taxonomic correction 

and based upon SEFSC advice, both 

Florida smoothhounds and smooth 

dogfish began to be managed as the 


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smoothhound shark complex in 

Amendment 3. 

Most directed smooth dogfish catch 

occurs with gillnets and bottom 

longlines, and incidental catches occur 

with trawl gear. As such, NMFS 

implemented a new requirement for a 

Federal smoothhound permit that is to 

be effective at the start of the 2012 

smoothhound shark fishing season (75 

FR 30524, June 1, 2010). The purpose of 

this action was to collect better fishery 

data and improve information regarding 

the life history of the species, among 

others. Consistent with the stated intent 

of Amendment 3 to minimize changes to 

the fishery, trawl gear was not 

authorized as an HMS gear, but NMFS 

indicated that vessels with trawl gear 

could harvest smoothhound shark 

species at incidental levels, similar to 

swordfish. Therefore, NMFS is 

considering in this proposed rule an 

appropriate retention limit that would 

allow fishermen to harvest incidentallycaught smoothhound shark species with 

trawl gear provided that sufficient 

quantities of target catch are retained. 

The proposed action would allow 

persons on board a vessel in a trawl 

fishery that has been issued a 

commercial open-access smoothhound 

permit to retain, possess, land, or sell 

incidentally-caught smoothhound 

sharks, but only up to an amount that 

does not exceed 25 percent, by weight, 

of the total fish on board or offloaded 

from the vessel. A vessel is considered 

to be in a trawl fishery when it has no 

commercial fishing gear other than 

trawls on board and when smoothhound 

sharks constitute no more than 25 

percent by weight of the total fish on 

board or offloaded from the vessel. 

In summary, NMFS is proposing 

measures that would modify the 

permitting requirements and allowance 

for incidentally-caught HMS in trawl 

gears. These actions would reduce 

regulatory dead discards, consistent 

with fishery management objectives, by 

converting discards into landings; 

improve fishery data collection; provide 

additional opportunities for the U.S. 

swordfish quota to be caught; and 

accommodate the use of traditional 

fishing gears (i.e., trawls) that 

incidentally capture North Atlantic 

swordfish and smoothhound shark 

species. The complete list of alternatives 

and their ecological, social, and 

economic analyses is provided in the 

draft EA, RIR, and IRFA, and is not 

repeated here in its entirety. A copy of 

the draft EA/RIR/IRFA is available from 

NMFS (see ADDRESSES). 

II. Adjustments to the Permitting 

Requirements and Retention Limits for 

Incidentally-Caught Swordfish in Squid 

Trawl Fisheries 

Under the current swordfish retention 

limit regulations for squid trawl vessels 

at § 635.24, a squid trawl vessel must be 

issued a swordfish LAP (other than 

handgear), a shark LAP, and an Atlantic 

Tunas Longline LAP to retain, possess, 

land or sell the allowed incidental 

retention limit of 15 swordfish per trip. 

A vessel is considered to be in the squid 

trawl fishery when it has no commercial 

fishing gear other than trawl gear on 

board and when squid constitutes not 

less than 75 percent by weight of the 

total fish on board or offloaded from the 

vessel. In addition, vessel owners issued 

the ‘‘HMS permit triple-pack’’ are 

required to sell their swordfish only to 

federally permitted swordfish dealers, 

and must report all swordfish landed in 

Federal logbooks. 

As indicated in the Background 

section of this preamble, these current 

requirements may be contributing to 

regulatory dead discards of swordfish by 

squid trawl vessels which did not apply 

for, qualify for, or obtain, the three 

requisite permits needed to retain 

swordfish. The intent of this proposed 

action is to reduce wasteful discards in 

squid trawl fisheries by converting 

regulatory dead discards of swordfish 

into landings, and to fully account for 

swordfish removed from the stock to 

provide better data for stock assessment 

purposes and quota monitoring. 

Relieving squid trawl vessels of the 

need to be issued three different HMS 

permits (that were primarily intended 

for PLL vessels) would also be more 

efficient, and could improve reporting 

and compliance with HMS regulations 

in all squid trawl fisheries. 

NMFS is proposing the following 

alternatives to reduce regulatory dead 

discards of swordfish incidentallycaught in squid trawl gear: Alternative 

A1, no action; Alternative A2, the 

preferred alternative, which would 

establish a new permit (i.e., Incidental 

HMS Squid Trawl permit) that would 

allow Illex squid moratorium permit 

holders to retain up to 15 swordfish per 

trip; Alternative A3, which would 

exempt Illex squid moratorium permit 

holders from current HMS permitting 

requirements and allow them to retain 

up to 15 swordfish per trip; and, 

Alternative A4, which would establish 

either a new permit or an exemption, as 

applicable, for Loligo squid moratorium 

permit holders to retain up to 15 

swordfish per trip. 

Overall squid trawl fishing effort is 

not expected to change under any of the 

four alternatives regardless of whether 

vessels are allowed to retain, rather than 

discard, swordfish captured incidentally 

while fishing for squid. These vessels 

are primarily designed to fish for, and 

land, small pelagic species such as 

squid, mackerel, and butterfish. 

Swordfish catches are incidental to 

catches of these target species. For 2011, 

the U.S. allowable biological catch for 

Illex squid was set at 24,000 mt, with a 

domestic annual harvest limit of 23,328 

mt. Although Illex landings fluctuate on 

an annual basis, they are limited by 

these specifications. 

Northeast Fisheries Science Center 

(NEFSC) Observer Data from 1997–2006 

indicates that both the directed Illex and 

Loligo squid trawl fisheries appear to 

have relatively low levels of 

incidentally-caught swordfish, with 

considerably less catch in the Loligo 

fishery. For Illex trips, 12,057 lbs of 

swordfish were caught, with 7,683 lbs 

kept and 4,374 lbs discarded (976 tows 

sampled). For Loligo trips, 2,468 lbs of 

swordfish were caught, with 1,186 lbs 

kept and 1,282 lbs discarded (4,697 

tows sampled). The average number of 

swordfish discards per Illex tow 

amounts to 0.11/tow, and the average 

number of swordfish discards per Loligo 

tow amounts to 0.01/tow. Using the 

average number of discards per tow in 

the Illex fishery and the average tows 

per trip among large and small vessels 

results in an average of 3.3 and 1.2 

swordfish discards per Illex trip, 

respectively. Using the average number 

of discards per tow in the Loligo fishery 

and the average tows per trip among 

large and small vessels results in an 

average of 0.3 and 0.1 swordfish 

discards per Loligo trip, respectively. 

The incidental catch of swordfish in 

squid trawl gear is expected to continue 

to occur at the same level under all of 

the alternatives. There is a very high 

mortality rate of swordfish captured 

incidentally by squid trawl vessels. The 

primary difference between alternatives 

is whether the dead (or dying) swordfish 

would be allowed to be kept. Thus, 

ecologically, the impacts associated 

with all of the alternatives are expected 

to be neutral, relative to the status quo, 

as the same amount of squid trawl 

fishing effort is expected to occur and 

the same amount of swordfish would 

likely be killed under all of the 

alternatives. 

The incidental catch of swordfish is 

much higher in the Illex squid trawl 

fishery than in the Loligo squid trawl 

fishery. This is because the Loligo 

fishery operates inshore during summer 

months, whereas the Illex fishery 

operates in the offshore mid-Atlantic 

canyons during the summer where 


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swordfish are more prevalent. 

Temporally and spatially, the two squid 

trawl fisheries are different. 

In 2010, there were 365 vessels issued 

Loligo squid moratorium permits (of 

which 180 were active) and 76 vessels 

issued Illex squid moratorium permits 

(of which 18 were active). All of the 

Illex squid moratorium permit holders 

were issued Loligo squid moratorium 

permits. Although Alternative A4 is 

expected to have neutral ecological 

impacts because no change in squid 

trawl fishing effort is anticipated under 

any of the alternatives, establishing a 

new permit or a permit exemption for 

up to potentially 289 additional Loligo 

squid trawl vessels is not necessary to 

reduce dead discards because these 

vessels individually have very low 

swordfish discard rates. Thus, 

Alternative A4 is not preferred. 

The no action alternative would have 

minor adverse short-term, long-term, 

and cumulative social and economic 

impacts because of the continued 

occurrence of regulatory dead discards 

of swordfish by squid trawl vessels 

under this alternative. Although the 

estimated number of discards is 

relatively low (less than 450 fish 

annually), it represents unrealized 

income and economic waste because the 

swordfish must be thrown overboard 

and are usually dead. Alternatives A2– 

A4 would all provide minor beneficial 

direct short-term, long-term, and 

cumulative social and economic 

impacts because dead swordfish 

discards would be converted into 

landings and income for fishermen, and 

a larger portion of the ICCATrecommended U.S. swordfish quota 

would be harvested. Because 

Alternative A3 would not implement a 

permit requirement for Illex squid trawl 

fishermen, it would not provide 

additional fishery management 

information regarding the number of 

squid trawl vessels potentially landing 

swordfish. Thus, Alternative A3 is not 

preferred. 

Alternative A2 is preferred at this 

time because it would provide 

socioeconomic benefits for the Illex 

squid trawl fishery, which has the 

highest interaction rate with swordfish, 

and is anticipated to result in neutral 

ecological impacts without the potential 

for a large increase in overall squid 

trawl fishing effort. Additionally, 

Alternative A2 could improve reporting 

and compliance with HMS regulations 

in squid trawl fisheries through the 

requirement to obtain an HMS permit. 

The proposed action (Alternative A2) is 

not expected to have any significant 

ecological impact on the environment, 

including protected resources, target 

catches, and non-target catches, beyond 

those that have been previously 

analyzed. 

III. Establishment of a Retention Limit 

for Smoothhound Shark Species in 

Atlantic Trawl Fisheries 

Smoothhound sharks were brought 

under Federal management in 2010 

through implementation of Amendment 

3 to the Consolidated HMS FMP. As 

discussed in the Background section of 

this preamble, NMFS included a new 

requirement for a federal smoothhound 

permit that is to be effective at the start 

of the 2012 fishing season. Consistent 

with the intent of Amendment 3 to 

minimize changes in the fishery, NMFS 

stated that vessels fishing with trawl 

gear would be allowed to land 

smoothhound shark species at 

incidental levels, similar to swordfish. 

NMFS proposes the following 

alternatives to address the retention of 

smoothhound sharks caught 

incidentally in trawl gear: Alternative 

B1, no action; Alternative B2, the 

preferred alternative, which would 

allow for the retention of smoothhound 

sharks caught incidentally in trawl gear, 

in an amount not to exceed 25 percent 

of the total catch, by weight; and 

Alternative B3, which would allow for 

the retention of smoothhound sharks 

caught incidentally in trawl gear, in an 

amount not to exceed 50 percent of the 

total catch, by weight. 

Alternative B1 would not implement 

management measures in the 2012 

fishing year to allow for the retention of 

smoothhound sharks caught 

incidentally in trawl gear. Under 

Amendment 3 to the HMS FMP, trawl 

gear is not an authorized gear in the 

smoothhound shark fishery and, in the 

absence of additional regulations, it 

would be illegal, beginning with the 

2012 fishing season, to retain 

smoothhound sharks caught with trawl 

gear. 

After Federal smoothhound shark 

management measures are implemented 

in 2012, the no action Alternative B1 

would require trawl fishermen to 

discard any incidentally-caught 

smoothhound sharks. This alternative 

could have minor beneficial ecological 

impacts. Unlike swordfish captured in 

trawl gear, which are thought to have a 

very low survivorship, smoothhound 

sharks may be better adapted to survive 

trawl capture and release. Although 

difficult to quantify, it is possible that 

a portion of the discards under no 

action Alternative B1 would be live 

discards and, therefore, fishing 

mortality on the Atlantic smoothhound 

shark stock could be reduced. 

Alternatives B2 and B3 would be 

expected to have positive ecological 

impacts when compared to the status 

quo, since it is currently legal for trawl 

fishermen to retain an unlimited 

amount of smoothhound sharks. 

However, ecological impacts resulting 

from either Alternative B2 or B3 must 

also be assessed compared to the no 

action alternative, B1. Under the no 

action alternative, trawl fishermen 

would not be authorized to retain 

smoothhound sharks beginning in 2012. 

Therefore, both Alternatives B2 and B3 

would result in an increase in the 

retention of the species and the 

potential for higher fishing mortality in 

comparison to the no action alternative. 

For this reason, both Alternatives B2 

and B3 could have minor, direct shortterm and long-term negative ecological 

impacts relative to the no action 

alternative, because they would allow 

for some retention of smoothhound 

sharks. The two alternatives establish 

different incidental catch thresholds, 

but both would allow for retention of 

the species. The potential for higher 

fishing mortality under Alternative B2 

and B3, as compared to the no action 

alternative (no retention of 

smoothhound sharks in trawl gear 

beginning in 2012), could result in 

minor negative impacts to the stock. 

However, in comparison to the status 

quo (currently unlimited retention of 

smoothhound sharks in trawl gear), 

Alternatives B2 and B3 could have 

minor positive impacts to the stock 

because they limit retention to no more 

than 25 or 50 percent of the total 

retained catch on board, respectively. 

Regardless, it is important to note that 

the smoothhound shark complex does 

not show signs of being unhealthy, and 

catch data has remained consistent over 

the past 10 years. 

In summary, none of the alternatives 

are expected to result in any change in 

trawl fishing effort because 

smoothhound sharks are rarely, if ever, 

targeted with trawl gear. Smoothhound 

sharks are usually caught incidentally 

while trawl fishing for other species, 

such as summer flounder, scup, croaker, 

silver hake, and squid. Therefore, any 

ecological impacts associated with the 

alternatives, either positive or negative, 

are expected to be either minor or nonexistent. 

Social and economic impacts, either 

positive or negative, are similarly 

expected to be minor under all of the 

alternatives. Under Alternative B1, trawl 

fishermen could collectively lose 

$56,729 per year between 266 vessels 

(or approximately $213 per vessel), 

beginning in 2012. Under Alternatives 

B2 and B3, however, they would 


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continue to be allowed to retain and sell 

incidentally-caught smoothhound 

sharks. Calculating the exact level of 

revenue that would continue to be 

earned through smoothhound shark 

sales by trawl fishermen is difficult due 

to incomplete reporting and data. 

However, based upon the average 

annual total smoothhound shark trawl 

revenue estimate of $56,729, and the 

fact that Alternatives B2 and B3 would 

continue to allow approximately 89 

percent or 97 percent of historical 

smoothhound trawl trips to occur, 

respectively, fishermen would 

experience moderate positive social and 

economic impacts when compared to 

the no action alternative. Alternative B2 

is preferred at this time because of the 

NMFS’ intention to maintain 

smoothhound sharks as an incidental 

catch in the trawl fishery. Allowing no 

retention (Alternative B1) or up to 50 

percent of trawl catches to be 

smoothhound sharks (Alternative B3) 

would not be fully consistent with the 

intent to minimize changes to the 

smoothhound shark fishery. 

IV. Request for Comments 

NMFS requests comments on all 

aspects of this proposed rule. NMFS 

also requests specific comments 

regarding the practicality and potential 

impacts associated with establishing a 

smoothhound shark retention limit for 

trawl vessels that is based upon the 

percent, by weight, of the total catch on 

board or offloaded from the vessel. 

Comments on this proposed rule may 

be submitted online via http:// 

www.regulations.gov, by mail, or by fax. 

Comments may also be submitted at a 

public hearing (see Public Hearings and 

Special Accommodations below). NMFS 

solicits comments on this proposed rule 

by April 17, 2011 (see DATES and 

ADDRESSES). NMFS will hold five public 

hearings for this proposed rule. These 

hearings will be physically accessible to 

people with disabilities. Requests for 

sign language interpretation or other 

auxiliary aids should be directed to 

Richard A. Pearson at (727) 824–5399, 

Steve Durkee at (202) 670–6637, or 

Delisse Ortiz at (301) 713–2347 at least 

7 days prior to the hearing date. The 

public is reminded that NMFS expects 

participants at the public hearings to 

conduct themselves appropriately. At 

the beginning of each public hearing, a 

representative of NMFS will explain the 

ground rules (e.g., alcohol is prohibited 

from the hearing room; attendees will be 

called to give their comments in the 

order in which they registered to speak; 

each attendee will have an equal 

amount of time to speak; and attendees 

should not interrupt one another). The 

NMFS representative will attempt to 

structure the meeting so that all 

attending members of the public will be 

able to comment, if they so choose, 

regardless of the controversial nature of 

the subject(s). Attendees are expected to 

respect the ground rules, and, if they do 

not, they will be asked to leave the 

hearing. 

V. Classification 

Pursuant to the Magnuson-Stevens 

Act, the NMFS Assistant Administrator 

has determined that the proposed rule is 

consistent with the 2006 Consolidated 

HMS FMP and its amendments, other 

provisions of the MSA, and other 

applicable law, subject to further 

consideration after public comment. 

NMFS prepared an EA for this 

proposed rule that discusses the impact 

on the environment as a result of this 

rule. In this proposed action, NMFS 

considers the establishment of a new 

Incidental HMS Squid Trawl permit to 

reduce regulatory dead discards of 

North Atlantic swordfish in squid trawl 

fisheries with minimal ecological 

impacts. The proposed action also 

considers establishing a retention limit 

for smoothhound shark species in all 

Atlantic trawl fisheries to account for 

the incidental catch of these species. 

These measures are meant to reduce 

regulatory dead discards of HMS in 

trawl fisheries, consistent with fishery 

management objectives, by converting 

discards into landings, improving 

fishery data collection, providing 

additional opportunities for the U.S. 

swordfish quota to be caught, and 

accommodating traditional fishing 

methods (i.e., trawls) that may 

incidentally capture swordfish and 

smoothhound shark species. A copy of 

the EA is available from NMFS (see 

ADDRESSES). 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A description of the action, why it is 

being considered, and the legal basis for 

this action are contained at the 

beginning of this section in the 

preamble and in the SUMMARY section of 

the preamble. A summary of the 

analysis follows. A copy of this analysis 

is available from NMFS (see 

ADDRESSES). 

In compliance with section 603(b)(1) 

of the RFA, the purpose of this proposed 

rulemaking is, consistent with the 

Magnuson-Stevens Act, and the 2006 

Consolidated HMS FMP and its 

amendments, to consider modifications 

to the permitting requirements for squid 

trawl vessels to retain incidentallycaught swordfish that would otherwise 

be discarded dead, and to establish 

smoothhound shark incidental retention 

limits for all Atlantic trawl vessels. 

In compliance with section 603(b)(2) 

of the RFA, the objectives of this 

proposed rulemaking are to: (1) 

Establish a new Incidental HMS Squid 

Trawl permit to reduce regulatory dead 

discards of North Atlantic swordfish in 

squid trawl fisheries; and, (2) establish 

a retention limit for smoothhound shark 

species in all Atlantic trawl fisheries to 

account for the incidental catch of these 

species. 

Section 603(b)(3) requires Federal 

agencies to provide an estimate of the 

number of small entities to which the 

rule would apply. NMFS has 

determined that all squid trawl vessels 

that are issued an Illex squid 

moratorium fishing permit and all trawl 

vessels that would obtain an open 

access smooth dogfish permit when it 

becomes required in 2012 are small 

entities under the Small Business 

Administration (SBA) size standards. 

All potentially effected vessels either 

had average annual receipts less than 

$4.0 million for fish-harvesting, average 

annual receipts less than $6.5 million 

for charter/party boats, 100 or fewer 

employees for wholesale dealers, or 500 

or fewer employees for seafood 

processors 13 CFR 121.201. 

The proposed rule would apply to the 

76 current (as of September 2010) Illex 

squid moratorium permit holders, of 

which 18 are considered ‘‘active’’ (i.e., 

reported landings in 2009). Rhode 

Island and New Jersey accounted for 99 

percent of Illex squid landings in 2009. 

NMFS cannot provide an estimate of the 

number of trawl vessels that would 

obtain an open access permit for 

smoothhound sharks in 2012, because 

the permit is currently not required. 

However, as a proxy, NMFS based its 

analysis upon vessels participating in 

the summer flounder and scup fisheries 

because these trawl fisheries frequently 

interact with smoothhound sharks. In 

2009, approximately 1,100 vessels were 

issued either a commercial summer 

flounder permit or a commercial scup 

permit or both, with 798 vessels landing 

summer flounder in 2000. Rhode Island, 

New York, New Jersey, Virginia, and 

North Carolina are the primary states 

with landings of summer flounder and 

scup. 

Under section 603 (b)(4) of the RFA, 

agencies are required to describe any 

new reporting, record-keeping and other 

compliance requirements. The proposed 

Federal permit requirement for an 


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Incidental HMS Squid Trawl permit 

would allow NMFS to collect data 

regarding participants in the fishery and 

landings through Federal dealer reports. 

The Federal Incidental HMS Squid 

Trawl permit requirement would 

require a similar permit application to 

the other current HMS permits. The 

information collected on the application 

would include vessel information, 

owner identification and contact 

information. A modest fee to process the 

application and annual renewal fee of 

approximately $20 may be required. 

Under section 603(b)(5) of the RFA, 

agencies are required to identify, to the 

extent practicable, all relevant Federal 

rules which may duplicate, overlap or 

conflict with the proposed rule. 

Fishermen, dealers, and managers in 

these fisheries must comply with a 

number of domestic laws, as well as 

regulations implementing other FMPs. 

These include, but are not limited to, 

the Magnuson-Stevens Act, the Atlantic 

Tunas Convention Act, the High Seas 

Fishing Compliance Act, the Marine 

Mammal Protection Act, the Endangered 

Species Act, the National 

Environmental Policy Act, the 

Paperwork Reduction Act, and the 

Coastal Zone Management Act. NMFS 

does not believe that the proposed 

regulations would duplicate, overlap, or 

conflict with any relevant regulations, 

Federal or otherwise. 

Under section 603(c) of the RFA, 

agencies are required to describe any 

alternatives to the proposed rule which 

accomplish the stated objectives and 

which minimize any significant 

economic impacts. The potential 

impacts of this proposed action are 

discussed below and in the EA for the 

proposed action. Additionally, the RFA 

lists four general categories of 

significant alternatives that would assist 

an agency in the development of 

significant alternatives (5 U.S.C. 603(c) 

(1)–(4)). These categories of alternatives 

are: (1) Establishment of differing 

compliance or reporting requirements or 

timetables that take into account the 

resources available to small entities; 

(2) clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; (3) use of 

performance rather than design 

standards; and, (4) exemptions from 

coverage of the rule for small entities Id. 

In order to meet the objectives of this 

proposed rule in a manner consistent 

with all other legal obligations, NMFS 

cannot exempt small entities or change 

the reporting requirements for only 

small entities. Thus, NMFS did not 

analyze any alternatives for either issue 

that fall under the first and fourth 

categories described above. In addition, 

NMFS intends to clarify and consolidate 

all reporting and compliance 

requirements associated with this 

proposed rule, to the extent practicable 

(category two above). All federallypermitted squid trawl vessels must 

currently report all of their landings via 

a NMFS Northeast Region Fishing 

Vessel Trip Report (VTR). NMFS 

intends to continue to utilize this 

reporting mechanism for all vessels that 

would be issued an Incidental HMS 

Squid Trawl permit to report their 

swordfish landings, although vessels 

could be selected for additional 

reporting under this rule if such 

reporting is determined to be necessary 

and appropriate. Similarly, the 

application process for the proposed 

Incidental HMS Squid Trawl permit 

would be the same, or similar, to the 

process used to apply for an Illex squid 

moratorium permit. The only 

prerequisite for obtaining the proposed 

new permit would be that the vessel has 

already been issued a valid Illex squid 

moratorium permit. There are no 

reporting or compliance requirements 

associated with establishing a 

smoothhound shark trawl vessel 

retention limit that could be 

consolidated, clarified, or simplified for 

small entities. Finally, NMFS does not 

know of any performance or design 

standards that would satisfy the 

aforementioned objectives of this 

rulemaking while, concurrently, 

complying with the Magnuson-Stevens 

Act (category three above). 

As described below, for this proposed 

rule, NMFS considered and analyzed 

four alternatives to address the retention 

of incidentally-caught swordfish in 

squid trawl fisheries (Issue A), and three 

alternatives to address the retention of 

incidentally-caught smoothhound 

sharks in trawl fisheries (Issue B). 

The first alternative for Issue A is the 

no action alternative. This alternative 

would maintain existing HMS permit 

requirements and incidental swordfish 

retention limits in squid trawl fisheries. 

The second alternative, the preferred 

alternative, would implement a new 

permit (referred to as the Incidental 

HMS Squid Trawl permit) for Illex squid 

moratorium permit holders to retain up 

to 15 swordfish per trip, the current 

squid trawl limit. The third alternative 

would exempt Illex squid moratorium 

permit holders from current HMS 

permit requirements (i.e., the ‘‘HMS 

permit triple-pack’’) and allow them to 

retain up to 15 swordfish when fishing 

for squid. Finally, the fourth alternative 

would establish either a new Incidental 

HMS Squid Trawl permit available to all 

vessel owners currently issued a Loligo 

squid moratorium permit, or establish 

an exemption from the need for Loligo 

squid trawl vessels to be issued the 

‘‘HMS permit triple-pack’’ to retain 

swordfish. 

For Issue A, the no action alternative 

(A1) would not result in any additional 

economic impacts to small entities in 

the short-term. However, this alternative 

contributes to a loss of potential income 

by squid trawl vessels which may 

occasionally catch a swordfish while it 

is foraging on squid or in the same 

physical environment, during normal 

squid trawl fishing activities. Only five 

squid trawl vessels out of 180 active 

Illex and Loligo squid vessels have been 

issued the requisite ‘‘HMS permit triplepack’’ needed to retain swordfish. There 

are 18 active squid trawl vessels which 

are issued both an Illex and Loligo 

permit (i.e., Illex/Loligo vessels). It is 

presumed that the five squid trawl 

vessels issued the necessary HMS 

permits are also Illex/Loligo vessels. 

This means that the vast majority of 

squid trawl vessels must discard any 

incidentally-caught swordfish because 

they do not have the proper LAPs 

needed to retain them. Most of the 

swordfish incidentally caught by squid 

trawl vessels are brought onboard dead, 

or die soon afterwards; these dead 

discards constitute unrealized income 

and economic waste. NMFS estimates 

that the no action alternative contributes 

from $3,849.30–$4,154.40 annually in 

unrealized income for the 13 active 

Illex/Loligo squid trawl vessels that are 

not issued HMS permits. In aggregate, 

the total amount of unrealized annual 

income by the 13 active Illex/Loligo 

squid trawl vessels is estimated to range 

from $50,041–$54,007, depending upon 

the number of small and large active 

squid trawl vessels. Similarly, the total 

amount of unrealized annual income by 

the 162 active Loligo squid trawl vessels 

ranges from $57,562–$76,749, 

depending upon the number of small 

and large active Loligo squid trawl 

vessels. Each swordfish discard is 

estimated to be valued at approximately 

$296.10. Because the no action 

alternative (A1) contributes to 

regulatory discards of dead swordfish by 

squid trawl vessels, thereby causing 

economic waste, and because current 

permit requirements (i.e., the ‘‘HMS 

permit triple-pack’’) are not well-suited 

for squid trawl vessels, it was not 

chosen as the preferred alternative. 

The preferred alternative, Alternative 

A2, would implement a new permit 

(referred to as the Incidental HMS Squid 

Trawl permit) for Illex squid 

moratorium permit holders to retain up 

to 15 swordfish per trip, which is the 

current squid trawl limit. Because 


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Alternative A2 would allow Illex squid 

trawl vessels to retain swordfish caught 

incidentally during normal squid trawl 

fishing activities, thereby converting 

dead swordfish discards into landings, 

this alternative is expected to provide 

some minor economic benefits to Illex 

squid trawl vessels. Specifically, this 

alternative is estimated to provide a 

moderate increase in annual revenues 

from between $3,849.30–$4,154.40 

annually for each of the 13 active Illex/ 

Loligo squid trawl vessels that have not 

been issued HMS permits. In aggregate, 

Alternative A2 could produce from 

$50,041–$54,007 annually in additional 

revenue amongst the 13 active Illex/ 

Loligo squid trawl vessels. These 

estimates were calculated using the 

average number of swordfish discards 

per tow from NEFSC observer data, and 

then extrapolating to determine the 

average number of swordfish discards 

per year for active vessels. Also, by 

implementing a permit requirement, 

NMFS would obtain important fishery 

management information, such as the 

identification of participants in the 

squid trawl fishery that may 

occasionally catch swordfish. This 

information will also help in outreach 

efforts. The Federal Incidental HMS 

Squid Trawl permit requirement would 

require a permit application similar to 

other current HMS permits. The 

information collected on the application 

would include vessel information and 

owner identification and contact 

information. A modest fee to process the 

application and annual renewal fee of 

approximately $20 may be required. 

This alternative is preferred because it 

would convert dead swordfish discards 

into landings, provide minor economic 

benefits to some small entities, reduce 

economic waste, provide additional 

fishery management information, and is 

not expected to appreciably alter current 

levels of fishing effort or have other 

adverse ecological consequences, 

including impacts on protected species, 

target species, non-target species, and 

essential fish habitat. 

Alternative A3 is estimated to have 

the same minor positive economic 

impacts on small entities as preferred 

Alternative A2. However, there would 

be no costs to vessel owners associated 

with obtaining a new HMS permit 

(approximately $20/year). Rather, 

Alternative A3 would exempt vessels 

issued an Illex squid moratorium permit 

from HMS permit requirements and 

allow them to land up to 15 swordfish 

caught incidentally while squid 

trawling. All swordfish landings would 

still have to be reported in the VTR 

logbook (as currently required), so 

landings information would be 

obtained. While this alternative would 

be less burdensome to industry, it 

would not help to better identify the 

universe of vessels participating in the 

Illex squid trawl fishery that may be 

catching swordfish incidentally. It is 

currently difficult to separate squid 

trawl vessels from other vessels in 

landings databases because the required 

HMS permits are identical to those 

issued to longline vessels and other 

vessels. A removal of HMS permitting 

requirements for Illex squid trawl 

vessels would exacerbate this situation. 

Furthermore, it would hamper NMFS’s 

efforts to improve outreach and 

communications with this small, but 

important, HMS constituency. Without 

a permit, NMFS could be deprived of 

important information regarding trawl 

vessel swordfish landings and fishery 

participation. Therefore, because 

Alternative A3 would not provide 

additional information for fishery 

management purposes, it was not 

selected as the preferred alternative. 

Alternative A4 would implement the 

same requirements for Loligo squid 

trawl vessels that NMFS selects for Illex 

squid trawl fishermen. This alternative 

is estimated to provide a moderate 

increase in annual revenues from 

between $355.32–$473.76 annually for 

162 active Loligo squid trawl vessels 

that are not issued HMS permits (i.e., 

180 active Loligo vessels minus 18 

active Illex/Loligo vessels). In aggregate, 

the total amount of additional annual 

income that could be realized under this 

alternative by the 162 active Loligo 

squid trawl vessels ranges from 

$57,562–$76,749, depending upon the 

number of small and large active Loligo 

squid trawl vessels. This alternative 

would convert dead swordfish discards 

into landings and could provide minor 

economic benefits. However, the 

incidental catch of swordfish in squid 

trawls is much higher in the Illex squid 

trawl fishery than in the Loligo squid 

trawl fishery. This is because the Loligo 

fishery operates inshore during summer 

months whereas the Illex fishery 

operates in the offshore mid-Atlantic 

canyons during the summer where 

swordfish are more prevalent. 

Temporally and spatially, the two 

fisheries are different. Establishing a 

new permit or a permit exemption for 

up to potentially 289 additional Loligo 

squid trawl vessels is not necessary to 

reduce dead discards because these 

vessels individually have very low 

swordfish discard rates. 

For Issue B, under the no action 

alternative (B1), beginning in 2012, the 

retention of smoothhound sharks would 

be prohibited by trawl vessels without 

the additional regulatory action that is 

proposed in this rulemaking. Therefore, 

Alternative B1 would have moderate 

direct short-term and long-term negative 

social and economic impacts starting in 

2012. Based on VTR data from 2000– 

2009, an average of 145,088 lbs dw of 

smoothhound sharks were caught in 

trawl gear, retained, and likely sold per 

year. Using an average ex-vessel price of 

$0.29 for smoothhound shark meat, 

$2.02 for smoothhound shark fins, and 

assuming a fin-to-carcass ratio of five 

percent, total revenues from 

smoothhound sharks caught in trawl 

gear averages $56,729 per year. Thus, in 

aggregate, under Alternative B1, in 2012 

trawl fishermen could collectively lose 

$56,729 per year across up to 266 

vessels. Individually, each vessel could 

realize approximately $213.26 annually 

in lost revenue under the no action 

alternative. This alternative is not 

preferred because prohibiting the 

retention of incidentally-caught 

smoothhound sharks by trawl gear 

would not be consistent with NMFS’s 

intent in Amendment 3 to minimize 

changes to the smoothhound fishery by 

allowing for incidental trawl landings. 

Alternative B2, the preferred 

alternative, would allow for the 

retention of smoothhound sharks caught 

incidentally in trawl gear, in an amount 

not to exceed 25 percent of the total 

catch, by weight. When compared to the 

no action alternative, starting in 2012 

Alternative B2 would have moderate 

direct short-term and long-term positive 

social and economic impacts. Currently, 

some trawl fishermen supplement 

fishing revenue with smoothhound 

shark products. Under the no action 

alternative in 2012, they would no 

longer be able to do so. Under 

Alternative B2, however, they would 

continue to be allowed to retain and sell 

incidentally caught smoothhound 

sharks. Calculating the exact level of 

revenue that would continue to be 

earned through smoothhound shark 

sales by trawl fishermen is difficult due 

to incomplete reporting and data. 

However, based upon the average 

annual total smoothhound shark trawl 

revenue estimate of $56,729, and the 

fact that Alternative B2 would continue 

to allow approximately 89 percent of 

historical smoothhound trawl trips, 

fishermen stand to experience moderate 

positive social and economic impacts 

compared to Alternative B1 starting in 

2012. This alternative is preferred 

because it maintains 89 percent of 

historical smoothhound shark trips, but 

implements a reasonable upper 

threshold on landings to discourage a 

directed trawl fishery for smoothhound 


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sharks. This alternative is consistent 

with NMFS’s intent to maintain 

smoothhound sharks as an incidental 

catch in trawl fisheries. 

Alternative B3 would allow for the 

retention of smoothhound sharks caught 

incidentally in trawl gear, in an amount 

not to exceed 50 percent of the total 

catch, by weight. When compared to the 

no action alternative, Alternative B3 

would have moderate direct short-term 

and long-term positive social and 

economic impacts beginning in 2012. 

Currently, some trawl fishermen 

supplement fishing revenue with 

smoothhound shark products. Under the 

no action alternative, they would no 

longer be able to do so starting in 2012. 

Under Alternative B3, however, they 

would continue to be allowed to retain 

and sell incidentally-caught 

smoothhound sharks. Calculating the 

exact level of revenue that would 

continue to be earned through 

smoothhound shark sales by trawl 

fishermen is difficult due to incomplete 

reporting and data. However, based 

upon the average annual total 

smoothhound shark trawl revenue 

estimate of $56,729, and the fact that 

Alternative B3 would continue to allow 

approximately 97 percent of the 

historical smoothhound trawl trips, 

fishermen would experience moderate 

positive social and economic impacts 

compared to Alternative B1 starting in 

2012. This alternative is not preferred 

because allowing a trawl fishing trip to 

be up to 50 percent smoothhound 

sharks would not effectively ensure that 

a directed trawl fishery for 

smoothhound sharks does not develop. 

This alternative would not be consistent 

with NMFS’s intent in Amendment 3 to 

minimize changes to the smoothhound 

fishery by allowing only for incidental 

trawl landings. 

In summary, preferred Alternative A2 

would have minor direct short-term 

positive economic impacts. It is 

estimated to allow 13 active Illex squid 

trawl vessels to retain and sell from 

13–14 swordfish per vessel per year that 

they would otherwise be required to 

discard, assuming that historical fishing 

effort and discard rates remain constant. 

In aggregate, Alternative A2 could 

produce from $50,041–$54,007 annually 

in additional revenue amongst the 13 

active Illex/Loligo squid trawl vessels. 

Similarly, preferred Alternative B2 

would have minor direct short-term 

positive economic impacts, starting in 

2012. Trawl vessels would continue to 

be allowed to retain and sell 

incidentally caught smoothhound 

sharks. Calculating the exact level of 

revenue that would continue to be 

earned through smoothhound shark 

sales by trawl fishermen is difficult due 

to incomplete reporting and data. 

However, based upon the average 

annual total smoothhound shark trawl 

revenue estimate of $56,729, and the 

fact that Alternative B2 would continue 

to allow approximately 89 percent of 

historical smoothhound trawl trips, 

fishermen would stand to experience 

moderate positive social and economic 

impacts compared to the no action 

alternative starting in 2012. 

List of Subjects in 50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties. 

Dated: March 14, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set out in the preamble, 

50 CFR part 635 is proposed to be 

amended as follows: 

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

1. The authority citation for part 635 

continues to read as follows: 

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

1801 et seq. 

2. In § 635.4, paragraphs (a)(5), (a)(10), 

(f)(1), and (f)(2), the heading of 

paragraph (h)(1), and paragraphs (m)(1) 

and (m)(2) are revised, and paragraphs 

(h)(1)(iv) and (n) are added to read as 

follows: 

§ 635.4 Permits and fees. 

* * * * * 

(a) * * * 

(5) Display upon offloading. Upon 

offloading of Atlantic HMS, the owner 

or operator of the harvesting vessel must 

present for inspection the vessel’s HMS 

Charter/Headboat permit; Atlantic 

tunas, shark, or swordfish permit; 

Incidental HMS squid trawl; and/or the 

shark research permit to the first 

receiver. The permit(s) must be 

presented prior to completing any 

applicable landing report specified at 

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

* * * * * 

(10) Permit condition. An owner of a 

vessel with a valid swordfish, shark, 

HMS Angling, HMS Charter/Headboat, 

or Incidental HMS squid trawl permit 

issued pursuant to this part must agree, 

as a condition of such permit, that the 

vessel’s HMS 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 U.S. EEZ, or 

outside the U.S. EEZ, and without 

regard to where such HMS, or gear, are 

possessed, taken, or landed. However, 

when a vessel fishes within the waters 

of a state that has more restrictive 

regulations pertaining to HMS, persons 

aboard the vessel must abide by the 

state’s more restrictive regulations. 

* * * * * 

(f) * * * 

(1) Except as specified in paragraph 

(n) of this section, 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. It is a 

rebuttable presumption that the owner 

or operator of a vessel on which 

swordfish are possessed in excess of the 

recreational retention limits intends to 

sell the swordfish. 

(2) The only valid commercial Federal 

vessel permits for swordfish are those 

that have been issued under the limited 

access program consistent with the 

provisions under paragraphs (l) and (m) 

of this section, or those issued under 

paragraph (n) of this section. 

* * * * * 

(h) * * * 

(1) Atlantic Tunas, HMS Angling, 

HMS Charter/Headboat, and Incidental 

HMS squid trawl vessel permits. * * * 

* * * * * 

(iv) An applicant for an incidental 

HMS squid trawl permit must submit, in 

addition to all other information 

specified in § 635.4(h)(1), a copy of a 

valid Illex squid moratorium permit, as 

described at § 648.4(a)(5)(i) of this 

chapter. 

* * * * * 

(m) * * * 

(1) General. Persons must apply 

annually for a dealer permit for Atlantic 

tunas, sharks, and swordfish, and for an 

Atlantic HMS Angling, HMS Charter/ 

Headboat, tunas, shark, swordfish, or 

Incidental HMS squid trawl vessel 

permit. Except as specified in the 

instructions for automated renewals, 

persons must submit a renewal 

application to NMFS, along with a copy 

of the applicable valid workshop 

certificate or certificates, if required 

pursuant to § 635.8, 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 if the specific 

requirements for the requested permit 


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14892 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

are met, including those described in 

paragraphs (h)(1)(iv) and (l)(2) of this 

section, all reports required under the 

Magnuson-Stevens Act and ATCA have 

been submitted, including those 

described in § 635.5 and § 300.185 of 

this title, the applicant is not subject to 

a permit sanction or denial under 

paragraph (a)(6) of this section, and the 

workshop requirements specified in 

§ 635.8 are met. 

(2) Shark and swordfish LAPs. The 

owner of a vessel of the U.S. that fishes 

for, possesses, lands or sells shark or 

swordfish from the management unit, or 

that takes or possesses such shark or 

swordfish as incidental catch, must 

have the applicable limited access 

permit(s) issued pursuant to the 

requirements in paragraphs (e) and (f) of 

this section, except as specified in 

paragraph (n) of this section. Only 

persons holding non-expired shark and 

swordfish limited access permit(s) in 

the preceding year are eligible to renew 

those limited access permit(s). 

Transferors may not renew limited 

access permits that have been 

transferred according to the procedures 

in paragraph (l) of this section. 

(n) Incidental HMS Squid Trawl 

permits. (1) The owner of a vessel in the 

squid trawl fishery, as described at 

§ 635.24(b)(2), on which Atlantic 

swordfish are retained, possessed with 

an intention to sell, or sold must obtain, 

in addition to any other required 

permits, an Incidental HMS squid trawl 

permit. 

(2) An Incidental HMS squid trawl 

permit is valid only when the vessel has 

on board a valid Illex squid moratorium 

permit, as described at § 648.4(a)(5)(i) of 

this chapter, and no commercial fishing 

gear other than trawl gear. 

3. In § 635.5, paragraph (a)(1) is 

revised to read as follows: 

§ 635.5 Recordkeeping and reporting. 

* * * * * 

(a) * * * 

(1) Logbooks. If an owner of an HMS 

charter/headboat vessel, an Atlantic 

tunas vessel, a shark vessel, a swordfish 

vessel, or a vessel in the squid trawl 

fishery for which a permit has been 

issued under § 635.4(b), (d), (e), (f), or 

(n) is selected for logbook reporting in 

writing by NMFS, he or she must 

maintain and submit a fishing record on 

a logbook form 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 logbook form within 48 hours of 

completing that day’s activities or before 

offloading, whichever is sooner. The 

owner or operator of the vessel must 

submit the logbook form(s) postmarked 

within 7 days of offloading all Atlantic 

HMS. If no fishing occurred during a 

calendar month, a no-fishing form so 

stating must be submitted postmarked 

no later than 7 days after the end of that 

month. If an owner of an HMS charter/ 

headboat vessel, Atlantic tunas vessel, 

shark vessel, swordfish vessel, or a 

vessel in the squid trawl fishery 

permitted under § 635.4(b), (d), (e), (f), 

or (n) is selected in writing by NMFS to 

complete the cost-earnings portion of 

the logbook(s), the owner or operator 

must maintain and submit the costearnings portion of the logbook 

postmarked no later than 30 days after 

completing the offloading for each trip 

fishing for Atlantic HMS during that 

calendar year, and submit the Atlantic 

Highly Migratory Species Annual 

Expenditures form(s) postmarked no 

later than the date specified on the form 

of the following year. 

* * * * * 

4. In § 635.21, paragraphs (e)(3)(i), 

(e)(4)(i), and (e)(4)(iv) are revised to read 

as follows: 

§ 635.21 Gear operation and deployment 

restrictions. 

* * * * * 

(e) * * * 

(3) * * * 

(i) No person may possess a shark in 

the EEZ taken from its management unit 

without a permit issued under § 635.4. 

No person issued a Federal Atlantic 

commercial shark permit under § 635.4 

may possess a shark taken by any gear 

other than rod and reel, handline, 

bandit gear, longline, or gillnet, except 

that smoothhound sharks taken 

incidentally while fishing with trawl 

gear may be retained by vessels issued 

a Federal commercial smoothhound 

permit, subject to the restrictions 

specified in § 635.24(a)(7). No person 

issued an HMS Angling permit or an 

HMS Charter/Headboat permit under 

§ 635.4 may possess a shark if the shark 

was taken from its management unit by 

any gear other than rod and reel or 

handline, except that persons on a 

vessel issued both an HMS Charter/ 

Headboat permit and a Federal Atlantic 

commercial shark permit may possess 

sharks taken with rod and reel, 

handline, bandit gear, longline, or 

gillnet if the vessel is not engaged in a 

for-hire fishing trip. 

* * * * * 

(4) * * * 

(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 by a vessel issued a valid 

Incidental HMS squid trawl permit, 

subject to restrictions specified in 

§ 635.24(b)(2). No person may possess 

south Atlantic swordfish taken from its 

management unit by any gear other than 

longline. 

* * * * * 

(iv) Except for persons aboard a vessel 

that has been issued a limited access 

North Atlantic swordfish permit or 

Incidental HMS squid trawl permit 

under § 635.4, no person may fish for 

North Atlantic swordfish with, or 

possess a North Atlantic swordfish 

taken by, any gear other than handline 

or rod and reel. 

* * * * * 

5. In § 635.24, paragraphs (a)(7), (b)(1), 

and (b)(2) are revised to read as follows: 

§ 635.24 Commercial retention limits for 

sharks and swordfish. 

* * * * * 

(a) * * * 

(7) Only persons who own or operate 

a vessel that has been issued a Federal 

commercial smoothhound permit may 

retain, possess, and land smoothhound 

sharks if the smoothhound fishery is 

open per §§ 635.27 and 635.28. Persons 

aboard a vessel in a trawl fishery that 

has been issued a commercial 

smoothhound permit, and are in 

compliance with all other applicable 

regulations, may retain, possess, land, or 

sell incidentally-caught smoothhound 

sharks, but only up to an amount that 

does not exceed 25 percent, by weight, 

of the total catch on board or offloaded 

from the vessel. A vessel is considered 

to be in a trawl fishery when it has no 

commercial fishing gear other than 

trawls on board and when smoothhound 

sharks constitute no more than 25 

percent by weight of the total fish on 

board or offloaded from the vessel. 

* * * * * 

(b) * * * 

(1) Persons aboard a vessel that has 

been issued an incidental LAP for 

swordfish may retain, possess, land, or 

sell no more than 30 swordfish per trip 

in or from the Atlantic Ocean north of 

5° N. lat. 

(2) Persons aboard a vessel in the 

squid trawl fishery that has been issued 

an Incidental HMS squid trawl permit 

may retain, possess, land, or sell no 

more than 15 swordfish per trip in or 

from the Atlantic Ocean north of 5° 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. 


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Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14893 

6. In § 635.27, paragraph (c)(1)(i)(B) is 

revised to read as follows: 

§ 635.27 Quotas. 

* * * * * 

(c) * * * 

(1) * * * 

(i) * * * 

(B) A swordfish from the North 

Atlantic swordfish stock landed by a 

vessel for which an incidental catch 

permit for swordfish or an HMS Angling 

or Charter/Headboat or Incidental HMS 

squid trawl permit has been issued, 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. 

* * * * * 

7. In § 635.28, the first sentence of 

paragraph (c)(1)(i)(A) is revised to read 

as follows: 

§ 635.28 Closures. 

* * * * * 

(c) * * * 

(1) * * * 

(i) * * * 

(A) No more than 15 swordfish per 

trip may be possessed in or from the 

Atlantic Ocean north of 5 N. lat. or 

landed in an Atlantic coastal state on a 

vessel using or having on board a 

pelagic longline, or issued an Incidental 

HMS squid trawl permit. * * * 

* * * * * 

8. In § 635.71, paragraph (d)(18) is 

added, and paragraph (e)(8) is revised to 

read as follows: 

§ 635.71 Prohibitions. 

* * * * * 

(d) * * * 

(18) Retain or possess on board a 

vessel in the trawl fishery smoothhound 

sharks in an amount that exceeds 25 

percent, by weight, of the total fish on 

board or offloaded from the vessel, as 

specified at § 635.24(a)(7). 

* * * * * 

(e) * * * 

(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, except as 

specified at § 635.21(e)(4)(i). 

* * * * * 

[FR Doc. 2011–6266 Filed 3–17–11; 8:45 am] 

BILLING CODE 3510–22–P 


jlentini on DSKJ8SOYB1PROD with PROPOSALS