[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Proposed Rules]
[Pages 14884-14893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6266]



[[Page 14884]]

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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.

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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 
incidentally-caught 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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov
    <bullet> Fax: 301-713-1917, Attn: Margo Schulze-Haugen
    <bullet> 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.''
    <bullet> 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

[[Page 14885]]

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 triple-pack'' 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 triple-pack'' 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 incidentally-
caught 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 triple-pack'') 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

[[Page 14886]]

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 incidentally-caught 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 Sec.  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 incidentally-caught 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 ICCAT-recommended 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 short-term 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 non-existent.
    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

[[Page 14888]]

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 incidentally-caught 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

[[Page 14889]]

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 federally-permitted 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 triple-pack'' 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

[[Page 14890]]

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

[[Page 14891]]

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 Sec.  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:


Sec.  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 Sec.  
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 Sec.  
635.4(h)(1), a copy of a valid Illex squid moratorium permit, as 
described at Sec.  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 Sec.  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

[[Page 14892]]

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 Sec.  635.5 
and Sec.  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 Sec.  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 Sec.  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 Sec.  648.4(a)(5)(i) of this chapter, and no commercial fishing gear 
other than trawl gear.
    3. In Sec.  635.5, paragraph (a)(1) is revised to read as follows:


Sec.  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 
Sec.  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 Sec.  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 cost-earnings 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 Sec.  635.21, paragraphs (e)(3)(i), (e)(4)(i), and (e)(4)(iv) 
are revised to read as follows:


Sec.  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 Sec.  635.4. No person 
issued a Federal Atlantic commercial shark permit under Sec.  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 Sec.  635.24(a)(7). No person issued an HMS 
Angling permit or an HMS Charter/Headboat permit under Sec.  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 Sec.  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 Sec.  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 Sec.  635.24, paragraphs (a)(7), (b)(1), and (b)(2) are 
revised to read as follows:


Sec.  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 Sec. Sec.  
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[deg] 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[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.

[[Page 14893]]

    6. In Sec.  635.27, paragraph (c)(1)(i)(B) is revised to read as 
follows:


Sec.  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 Sec.  635.28, the first sentence of paragraph (c)(1)(i)(A) is 
revised to read as follows:


Sec.  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 Sec.  635.71, paragraph (d)(18) is added, and paragraph 
(e)(8) is revised to read as follows:


Sec.  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 
Sec.  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 Sec.  635.21(e)(4)(i).
* * * * *
[FR Doc. 2011-6266 Filed 3-17-11; 8:45 am]
BILLING CODE 3510-22-P