49368 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

well as perhaps the CAS Disclosure 

Statement, will be significant. 

10. Comment: A respondent observed 

that the (b)(14) overseas exemption has 

not been identified as a cause for 

overseas subcontracting challenges in 

recent testimonies. On June 29, 2010, 

Stuart W. Bowen, Jr., Special Inspector 

General for Iraq Reconstruction, testified 

before the House Subcommittee on 

National Security and Foreign Affairs, 

and identified many subcontracting 

issues. However, he did not mention the 

(b)(14) overseas exemption from CAS as 

a cause for any of the issues, nor did he 

recommend the imposition of CAS 

coverage on foreign concern 

subcontracts as a potential solution. In 

the July 26, 2010 hearing on war zone 

subcontracting before the Commission 

on Wartime Contracting (CWC), none of 

the witnesses cited the (b)(14) overseas 

exemption from CAS as contributing to 

the subcontracting challenges identified 

during the hearings, nor did any witness 

recommend the imposition of CAS 

coverage as a solution to overseas 

subcontracting problems. None of the 

CWC commissioners spoke of, or 

inquired about, subcontractor CAS 

coverage or CAS compliance during 

opening statements or witness 

testimony. 

Response: The CAS Board does not 

accept this reasoning for retaining the 

(b)(14) overseas exemption. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35, subchapter I) does 

not apply to this rulemaking, because 

this rule imposes no additional 

paperwork burden on offerors, affected 

contractors and subcontractors, or 

members of the public which requires 

the approval of OMB under 44 U.S.C. 

3501, et seq. The records required by 

this final rule are those normally 

maintained by contractors and 

subcontractors who claim 

reimbursement of costs under 

government contracts. 

E. Executive Order 12866, the 

Congressional Review Act, and the 

Regulatory Flexibility Act 

Because the affected contractors and 

subcontractors are those who are 

already subject to CAS but for the 

(b)(14) overseas exemption, and those 

who are subject to only CAS 401 and 

402 under the (b)(4) foreign concern 

exemption, the economic impact of this 

final rule on contractors and 

subcontractors is expected to be minor. 

As a result, the CAS Board has 

determined that this final rule will not 

result in the promulgation of an 

‘‘economically significant rule’’ under 

the provisions of Executive Order 

12866, and that a regulatory impact 

analysis is not required. For the same 

reason, the Administrator of the Office 

of Information and Regulatory Affairs 

has determined that this final rule is not 

a ‘‘major rule’’ under the Congressional 

Review Act, 5 U.S.C. chapter 8. Finally, 

this rule does not have a significant 

effect on a substantial number of small 

entities because small businesses are 

exempt from the application of the Cost 

Accounting Standards. Therefore, this 

final rule does not require a regulatory 

flexibility analysis under the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 

chapter 6. 

F. List of Subjects in 48 CFR 9903 

Government procurement, Cost 

accounting standards. 

Daniel I. Gordon, 

Chair, Cost Accounting Standards Board. 

For the reasons set forth in this 

preamble, Chapter 99 of Title 48 of the 

Code of Federal Regulations is proposed 

to be amended as set forth below: 

PART 9903—COST ACCOUNTING 

STANDARDS 

■ 1. The authority citation for Part 9903 

is amended to read as follows: 

Authority: Public Law 111–350, 124 Stat. 

3677, 41 U.S.C. 1502. 

9903.201–1 [Amended] 

■ 2. Section 9903.201–1 is amended by 

removing and reserving paragraph 

(b)(14). 

[FR Doc. 2011–20212 Filed 8–9–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 110112022–1262–02] 

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: Final rule. 

SUMMARY: This final rule modifies the 

permitting requirements and retention 

limits for Atlantic highly migratory 

species (HMS) that are incidentallycaught in Atlantic trawl fisheries. This 

action will reduce regulatory dead 

discards of incidentally-caught Atlantic 

swordfish in the Illex squid trawl 

fishery by establishing a new Incidental 

HMS Squid Trawl permit for all valid 

Illex squid moratorium permit holders. 

The Incidental HMS Squid Trawl permit 

will allow up to 15 swordfish per trip 

to be retained. The final rule also 

establishes a retention limit for 

smoothhound sharks in all Atlantic 

trawl fisheries. These 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: Effective August 10, 2011, except 

for the amendments to § 635.21(e)(3)(i), 

§ 635.24(a)(7), and § 635.71(d)(18), 

which are delayed indefinitely. NMFS 

will publish a document in the Federal 

Register announcing the effective dates 

for this amendments. 

ADDRESSES: Highly Migratory Species 

Management Division, 1315 East-West 

Highway, Silver Spring, MD 20910. 

Copies of the supporting documents— 

including the Environmental 

Assessment (EA), Regulatory Impact 

Review (RIR), Final Regulatory 

Flexibility Analysis (FRFA), small entity 

compliance guide, and the 2006 

Consolidated Atlantic HMSFMP—are 

available from the HMS Web site at 

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

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to the HMS 

Management Division (see above) and 

by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: Rick 

Pearson at (727) 824–5399, Steve Durkee 

at (202) 670–6637, or Delisse Ortiz at 

(301) 427–8503. 

SUPPLEMENTARY INFORMATION: North 

Atlantic swordfish and smoothhound 

shark species are managed under the 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49369 

authority of the Magnuson-Stevens Act. 

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 

FMP for Atlantic Tunas, Swordfish, and 

Sharks. 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. 

Background 

On March 18, 2011, NMFS published 

a proposed rule (76 FR 14884) in the 

Federal Register to modify the 

permitting requirements and retention 

limits for incidentally-caught HMS in 

Atlantic trawl fisheries. The proposed 

rule addressed two separate, but related, 

issues: (1) The retention of incidentallycaught swordfish in the Illex squid trawl 

fishery; and, (2) the retention of 

incidentally-caught species in the 

smoothhound shark complex (including 

smooth dogfish and Florida 

smoothhound (genus Mustelus)) in all 

Atlantic trawl fisheries. This rule 

finalizes the proposed management 

measures in the March 18, 2011, 

proposed rule. These final 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. NMFS will be 

issuing the new Incidental HMS Squid 

Trawl permit out of its Northeast 

Regional Permit Office pursuant to this 

final rule and other applicable 

provisions of 50 CFR part 635. 

Application procedures will be similar 

to those used for the Illex squid 

moratorium permit. 

NMFS considered four alternatives to 

address the retention of incidentallycaught swordfish in squid trawl 

fisheries (Issue A), and three 

alternatives to address the retention of 

incidentally-caught smoothhound 

sharks in trawl fisheries (Issue B). 

Alternative A1, the status quo, would 

maintain existing HMS permit 

requirements and incidental swordfish 

retention limits in squid trawl fisheries. 

The second alternative (A2), the 

selected final action, 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 (A3) 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 (A4) 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. 

Currently, there are no management 

measures in effect for smoothhound 

sharks, thus trawl vessels may retain 

unlimited amounts of this species. All 

smoothhound shark management 

measures, including a commercial 

permit requirement and a commercial 

quota, will be implemented in the future 

when smoothhound sharks are fully 

incorporated into the HMS management 

unit, and upon completion of 

regulations implementing the Shark 

Conservation Act of 2010. Consistent 

with the stated intent of Amendment 3 

to minimize changes to the fishery, 

trawl gear is 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. 

Thus, without the action being 

considered in this rulemaking, the 

retention of trawl-caught smoothhound 

sharks would be prohibited in the future 

because the gear is not authorized. 

Accordingly, all of the alternatives for 

Issue B are analyzed relative to the time 

when smoothhound shark measures are 

in effect. For Issue B, under the no 

action alternative (B1), when 

smoothhound sharks are fully 

incorporated into the HMS management 

unit, their retention would be 

prohibited by trawl vessels. Alternative 

B2, the final action, 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 smoothhound 

sharks are fully incorporated into the 

HMS management unit. Finally, 

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. 

The proposed rule contained 

additional details regarding the impacts 

of the alternatives considered and a 

brief summary of the recent 

management history. Those details are 

not repeated here. 

Response to Comments 

During the proposed rule stage, NMFS 

received seven written comments from 

non-governmental organizations, 

fishermen, dealers, and other interested 

parties. NMFS also heard numerous 

comments from constituents in 

attendance at the five public hearings. A 

summary of the major comments 

received on the proposed rule during 

the public comment period is shown 

below with NMFS’ responses. All 

written comments submitted during the 

comment period can be found at 

http://www.regulations.gov/by searching 

for RIN 0648–BA45. 

Issue A—Squid Trawl/Swordfish 

Comments 

Comment 1: NMFS should implement 

preferred Alternative A2 because it will 

improve data collection. Regulatory 

dead discards of swordfish contribute to 

scientific uncertainty. Swordfish are 

incidentally-caught in the Illex squid 

trawl fishery, so those fish should be 

counted. NMFS will gain ecological 

benefits associated with obtaining more 

reliable data. 

Response: NMFS agrees. NMFS is 

implementing preferred Alternative A2 

to improve data collection. Swordfish 

discard estimates are currently required 

to be reported in the Northeast Fishing 

Vessel Trip Report (VTR). Allowing for 

the limited retention of swordfish by all 

vessels issued Illex squid moratorium 

permits will require that those fish be 

sold to a permitted swordfish dealer 

who must submit bi-weekly dealer 

reports. Bi-weekly swordfish dealer 

reports will provide more precise 

landing weights than those currently 

obtained from VTR discard estimates. 

Also, establishing a new Incidental 

HMS Squid Trawl Permit will enable 

NMFS to place observers on those 

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49370 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

vessels to obtain additional catch and 

effort data specific to HMS in the future, 

if necessary. 

Comment 2: NMFS should implement 

preferred Alternative A2 because it will 

provide economic benefits by reducing 

dead discards of swordfish and 

converting them into landings. It is 

painful for so many Illex squid trawl 

vessels to discard incidentally-caught 

dead swordfish just because they do not 

have the correct HMS permits. The 

swordfish stock is fully rebuilt, so there 

is potential for more landings. The 

positive economic impacts to an 

individual vessel would be helpful. 

Preferred Alternative A2 would also be 

a great benefit to New Jersey ports, 

especially Cape May, where many Illex 

vessels unload. 

Response: NMFS agrees. Alternative 

A2, the final action, is estimated to 

result in moderate economic benefits 

ranging from $3,849–$4,145 annually 

for individual active Illex squid trawl 

vessels. These estimates are based upon 

historical observer data that indicates an 

average of 1.2–3.3 swordfish discards 

per Illex trip. For trips that land the 

maximum of 15 swordfish, the 

additional ex-vessel revenue associated 

with those landings could be 

approximately $4,441 per Illex trip. 

However, because Illex fishery 

encounters with swordfish are primarily 

concentrated in July and August and 

relatively few vessels actively 

participate in the fishery, NMFS does 

not anticipate that a large number of 

squid trawl trips will land the 

maximum allowable limit. This final 

rule will lessen economic waste by 

allowing swordfish that are 

incidentally-caught while trawling for 

Illex squid to be retained and sold, 

rather than discarded dead. Fishing 

ports in Rhode Island and New Jersey 

are expected to be positively impacted 

by this rule because these states 

historically account for more than 90 

percent of Illex squid landings. 

Comment 3: NMFS should not 

implement Alternatives A2–A4 because 

the squid trawl fishery could become a 

directed swordfish fishery in the future 

due to the value of swordfish. Allowing 

all Illex squid trawl vessels to retain up 

to 15 swordfish per trip will create an 

incentive for those vessels to target 

swordfish. 

Response: NMFS disagrees. The 

current HMS regulations specify that a 

vessel is considered to be in the squid 

trawl fishery when squid constitutes not 

less than 75 percent of the total fish on 

board and when trawl gear is the only 

gear on board. This means that a vessel 

would have to catch at least 5,000 lb. of 

squid to retain approximately 15 

average-sized (112 lb.) swordfish. Given 

that the Illex quota has held steady since 

2000 at 24,000 mt for the entire fishery, 

during which landings have been 

averaging about 11,800 mt annually, 

individual vessel landings of 5,000 lb do 

not always occur. NMFS intends to 

monitor the fishery to ensure that the 

15-fish retention limit is appropriate 

and consistent with the goal of 

maintaining the incidental nature of 

swordfish catches by squid trawl 

vessels. 

Comment 4: Due to a variety of 

economic factors like fuel costs, effort in 

many trawl fisheries has declined. If 

squid trawl fisheries are allowed to 

retain swordfish, fishing trips could 

become more profitable, which could 

encourage fishermen, who are not 

currently fishing, to fish. Because of the 

likelihood of increased trawl fishing 

effort, NMFS has incorrectly determined 

that ‘‘the action will not be reasonably 

expected to cause substantial damage to 

the ocean and coastal habitats and/or 

essential fish habitat (EFH)’’ and ‘‘that 

the action will not reasonably be 

expected to adversely affect endangered 

or threatened species, marine mammals, 

or critical habitat of these species.’’ 

Therefore, the draft Finding of No 

Significant Impact (FONSI) is incorrect. 

There will be a significant impact from 

this action and NMFS should prepare 

both an Environmental Impact 

Statement (EIS) and a Biological 

Opinion (BiOp). 

Response: NMFS disagrees. The Illex 

squid fishery is managed by the MidAtlantic Fishery Management Council 

(MAFMC) under the Atlantic Mackerel, 

Squids, and Butterfish Fishery 

Management Plan (MSB FMP). The 

MAFMC annually recommends an 

Acceptable Biological Catch (ABC) and 

a Domestic Annual Harvest (DAH) level. 

NMFS is required to close the directed 

Illex squid fishery when 95 percent of 

the DAH is achieved. Therefore, Illex 

squid fishing effort is effectively capped 

at a scientifically-determined upper 

quota limit. Because an EIS has been 

prepared for the MSB FMP, a BiOp has 

been developed for the fishery, and the 

MSB FMP has been determined to 

comply with the Magnuson-Stevens Act 

and its National Standards, any level of 

legal Illex squid fishing effort below 95 

percent of the DAH has already been 

analyzed. The Illex squid fishery has 

been landing an average of 59 percent 

(range: 38–77 percent) of the ABC since 

2005, so it is possible that squid trawl 

fishing effort could increase. However, 

an increase would not be solely because 

of this final HMS rule. Squid trawl 

vessels tend to be specialized and are 

designed to capture small pelagic 

species such as squid, mackerel, and 

butterfish. The primary factors 

influencing effort in this fishery are exvessel prices of those species, seasonal 

availability, and the amount of fixed 

gear in the water column from other 

fisheries. Although landings by value 

per individual moratorium-permitted 

vessel have fluctuated from 2002 to 

2006, the vast majority of Illex landings 

(96 percent) during this period came 

from only 22 distinct vessels. The 

additional revenue associated with the 

sale of incidentally-caught swordfish for 

a period of approximately 2–3 months 

($3,849–$4,145 annually per vessel) is 

not expected to offset the startup costs 

associated with this fishery or provide 

sufficient incentive for large numbers of 

currently inactive Illex squid vessels to 

reactivate. If some squid vessels do 

reactivate or increase their fishing effort, 

the fishery as a whole would continue 

to be limited by the ABC and DAH 

specified annually under the MSB FMP. 

Comment 5: NMFS should implement 

Alternative A4, which would establish 

either a new permit or an exemption for 

Loligo squid moratorium permit holders 

to retain swordfish. NMFS should allow 

for the retention of swordfish by both 

Illex and Loligo squid moratorium 

permit holders. 

Response: As explained in the 

Environmental Assessment, swordfish 

discards are much higher in the Illex 

squid trawl fishery than in the Loligo 

fishery. Based upon Northeast Fisheries 

Science Center (NEFSC) observer data, 

the average number of swordfish 

discards per Illex tow equals 0.11 (105 

total discards/976 total tows = 0.11 

discards/tow), and the average number 

of swordfish discards per tow in the 

Loligo fishery equals 0.01 (36 total 

discards/4,697 total tows = 0.01). In 

other words, swordfish discards are 

approximately 10 times higher in the 

Illex squid trawl fishery. This is because 

the Loligo fishery primarily operates 

inshore during summer months whereas 

the Illex fishery operates in the offshore 

Mid-Atlantic canyons during the 

summer where swordfish are more 

prevalent. Also, 75 out of 76 Illex squid 

moratorium permit holders have been 

issued a Loligo squid moratorium 

permit, so some of the swordfish 

discards in the Loligo fishery could be 

from these vessels. The data clearly 

indicate that the highest level of 

swordfish discards occur in the Illex 

squid fishery. Therefore, this final rule 

implements Alternative A2, which 

establishes a new HMS permit for Illex 

squid moratorium permit holders to 

retain up to 15 incidentally-caught 

swordfish per trip. 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49371 

Comment 6: NMFS should not have 

any restrictions on the number of 

swordfish allowed to be kept by squid 

trawl vessels, provided that all of the 

fish are accurately counted. Squid trawl 

vessels should be allowed to keep 

everything they catch, especially if the 

United States is not catching its ICCATrecommended swordfish quota. A 15- 

fish limit could be restrictive. There 

may be instances when that limit is 

exceeded. There is also the potential for 

‘‘high-grading’’ under a 15-fish limit, 

where fishermen discard all but the 

largest fish. Large freezer boats would 

especially benefit from a higher 

incidental swordfish trip limit. If the 15- 

fish limit is too restrictive and dead 

discards still occur, there should be a 

regulatory mechanism to quickly 

increase the limit. 

Response: NMFS disagrees. The 

incidental swordfish retention limit for 

squid trawl vessels was increased from 

five to 15 swordfish in 2007 (72 FR 

31688, June 7, 2007). Based upon 

logbook analysis and public comment, it 

was determined that 15 swordfish was 

an appropriate limit for the vast 

majority of squid trawl trips. Since the 

limit was increased in 2007, NMFS has 

not received any comments from active 

squid trawl vessel operators indicating 

that the current limit is too restrictive, 

and additional analysis prepared for this 

rulemaking indicates an average range 

of 1.2–3.3 swordfish discards per Illex 

squid trip, with some trips catching 

more and others less. The purpose of 

this rulemaking is to modify the 

permitting requirements for squid trawl 

vessels and not to reconsider the current 

squid trawl incidental retention limit. 

Should the limit need to be revised, 

either lower or higher due to targeted 

fishing or continued discards, 

respectively, NMFS might reconsider 

the issue in a future rulemaking. 

Comment 7: NMFS should authorize 

trawl gear for swordfish. 

Response: Trawl gear is not 

authorized for the retention of any HMS. 

Because swordfish have historically 

been captured incidentally while 

trawling for squid, NMFS created a 

small allowance for some HMSpermitted squid trawl vessels to retain 

swordfish. However, many squid trawl 

vessel owners did not qualify for, or 

obtain, the required HMS permits. This 

final rule creates a new Incidental HMS 

Squid Trawl permit, which will be 

available to all Illex squid moratorium 

permit holders to retain incidentallycaught swordfish, provided that squid 

constitute not less than 75 percent of the 

catch on board and trawl is the only 

commercial fishing gear on board. 

Authorizing trawl gear for all HMS, 

beyond allowing for limited incidental 

capture, is beyond the scope of this 

rulemaking and would require an 

Amendment to the HMS FMP and 

significant additional analysis. 

Comment 8: NMFS should clarify 

whether the permit proposed in 

Alternative A2 will be available to all 

Illex permitted vessels or only to active 

Illex vessels, and whether there will be 

any other qualification criteria for 

obtaining the permit. 

Response: As indicated in the 

response to Comment 7, the new 

Incidental HMS Squid Trawl permit 

will be available to all vessels issued a 

valid Illex squid moratorium permit, 

provided that all other requisite permit 

qualification criteria are met (reporting 

requirements, complete application, 

etc.). 

Comment 9: NMFS should clarify 

whether squid trawl vessels will need to 

have at least 75 percent Illex squid on 

board, or just squid, to be considered in 

the squid trawl fishery. 

Response: 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. The squid do 

not have to be exclusively Illex squid. 

Comment 10: NMFS should clarify 

whether the HMS ‘‘permit triple pack’’ 

will be required for Loligo squid 

moratorium permit holders to retain 

swordfish if Alternative A2 is 

implemented. 

Response: The HMS ‘‘permit triple 

pack’’ will no longer be applicable for 

vessels that are participating in the 

squid trawl fishery upon the effective 

date of this final rule. After that date, 

the only permit that will allow any 

squid trawl vessel, Illex or Loligo, to 

retain swordfish will be the Incidental 

HMS Squid Trawl permit, which is 

available only to vessels issued a valid 

Illex squid moratorium permit. 

Comment 11: NMFS should clarify 

whether Illex squid moratorium permit 

holders will have to surrender their 

HMS ‘‘permit triple pack’’ if a new 

Incidental HMS Squid Trawl permit is 

implemented under Alternative A2. 

Response: As described in the 

response to Comment 10, the only 

permit that will allow for the retention 

of swordfish by squid trawl vessels will 

be the Incidental HMS Squid Trawl 

permit upon the effective date of this 

final rule. NMFS has determined that 

approximately five squid trawl vessels 

are currently issued the HMS ‘‘permit 

triple-pack.’’ These permit holders may 

either transfer their HMS ‘‘permit triple 

pack’’ to another vessel, or let their 

swordfish and shark permits expire and 

then terminate 1 year after the 

expiration date. Atlantic Tunas Longline 

permits do not terminate 1 year after the 

expiration date. Vessel owners also have 

the option of maintaining their HMS 

‘‘permit triple pack’’ through annual 

renewal. The permits do not have to be 

surrendered. 

Comment 12: NMFS should allow 

incidental squid permit holders to retain 

swordfish rather than just Illex squid 

moratorium permit holders. 

Response: NMFS disagrees. The vast 

majority of Illex squid landings come 

from vessels issued an Illex squid 

moratorium permit (99 percent, on 

average, from 2002–2006). Most 

swordfish discards occur during Illex 

squid fishing. Thus, Illex squid 

moratorium permit holders are more 

likely to capture swordfish than 

incidental squid permit holders, and 

NMFS is restricting qualification for the 

Incidental HMS Squid Trawl permit to 

Illex moratorium vessels. 

Comment 13: NMFS should clarify 

whether Illex squid moratorium permit 

holders issued an Incidental HMS squid 

trawl permit will have to report their 

swordfish separately in the HMS 

logbook or whether they could report 

their swordfish in the Northeast Vessel 

Trip Report (VTR) logbook. 

Response: Illex squid moratorium 

permit holders issued an Incidental 

HMS Squid Trawl permit will be 

required to report their swordfish in the 

Northeast VTR logbook. NMFS could 

also select Incidental HMS Squid Trawl 

permit holders to report their catch in 

the HMS logbook, but that is not being 

considered at this time. If NMFS 

decides to require those permit holders 

to report in the HMS logbook, NMFS 

would notify individuals of that 

requirement and provide instructions on 

how to comply with the requirement. 

NMFS reminds fishermen that 

swordfish may only be sold to dealers 

issued a valid Swordfish Dealer permit. 

Comment 14: NMFS should carefully 

monitor the swordfish fishery if 

Alternative A2 is implemented to make 

sure its assumption of no expected 

changes in fishing effort is correct. 

Response: NMFS agrees. The Agency 

intends to monitor the squid trawl 

fishery and periodically report on it in 

the annual HMS Stock Assessment and 

Fishery Evaluation (SAFE) Report. The 

information may include, but is not 

limited to, the number of squid trawl 

vessels landing swordfish and the 

amount of swordfish being landed by 

squid trawl vessels. 

Comment 15: NMFS should clarify 

whether squid trawl vessels will 

continue to be allowed to fish in the 

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49372 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

pelagic longline (PLL) closed areas if 

Alternative A2 is implemented. 

Response: Squid trawl vessels issued 

an Incidental HMS Squid Trawl permit 

will continue to be allowed to fish in 

the PLL closed areas. However, the Illex 

squid trawl fishery generally does not 

occur in PLL closed areas, including the 

East Florida Coast, DeSoto Canyon, and 

Charleston Bump PLL closed areas. 

There could potentially be some overlap 

with the one-month Northeastern U.S. 

PLL closure, but the incidental catch of 

BFT and other HMS by squid trawl 

vessels is very low and retention is 

prohibited. 

Issue B—Smoothhound Shark Trawl 

Comments 

Comment 16: NMFS should allow 

Atlantic trawl fishermen to retain 

smoothhound sharks to reduce 

regulatory discards. 

Response: NMFS agrees. NMFS 

intends to allow trawl fishermen to 

retain incidentally-caught smoothhound 

sharks to reduce regulatory discards of 

these species and to maintain the 

historic nature of the Atlantic trawl 

fishery. Based on catch and landings 

data over the past 10 years, trawl 

fishermen rarely target smoothhound 

sharks. Those that are retained are 

typically caught incidentally while 

fishing for other species such as Loligo 

squid, summer flounder, scup, and 

whiting. Consistent with the intent of 

Amendment 3 to the 2006 Consolidated 

HMS FMP to minimize changes to the 

smoothhound shark fishery, Alternative 

B2 is NMFS’s preferred alternative to 

address the retention of smoothhound 

sharks caught incidentally in trawl gear. 

Comment 17: A smoothhound shark 

retention limit of 25 percent of the total 

catch, by weight, is too restrictive and 

will not effectively reduce regulatory 

discards. 

Response: NMFS disagrees. 

Implementing any retention limit could 

potentially create regulatory discards. 

However, a retention limit of 25 percent 

smoothhound sharks, by weight, was 

specifically chosen to minimize 

regulatory discards while ensuring that 

the trawl fishery for smoothhound 

sharks remains incidental. This limit 

incorporates 89 percent of the trips that 

have occurred over the last 10 years, 

and precludes only 11 percent of trips 

with high smoothhound shark retained 

catch. Because the retention limit 

incorporates a very large proportion of 

historical trips (89 percent), NMFS 

believes the alternative is appropriate. It 

achieves a balance between minimizing 

changes to the smoothhound shark 

fishery while preserving the incidental 

nature of the trawl fishery. 

Comment 18: A smoothhound shark 

retention limit equivalent to 25 percent 

of the total catch, by weight, is too high 

and will encourage directed trawl 

fishing effort on smoothhound sharks. 

Response: NMFS disagrees. Although 

a 25-percent retention limit incorporates 

the vast majority of historical trawl 

trips, it is not high enough to encourage 

a directed fishery. Smoothhound sharks 

have been unregulated since the fishery 

developed in the mid-1990s. Catch and 

landings data from the past 10 years 

indicate that, even when unmanaged, a 

directed trawl fishery for smoothhound 

sharks has not developed. NMFS does 

not believe that implementing a 

retention limit for smoothhound sharks 

caught in trawl gear will encourage a 

directed fishery. 

Comment 19: The proposed 

smoothhound shark retention limit 

could alter commercial trawl fishing 

effort or behavior. 

Response: NMFS disagrees. Even 

while the fishery has been unregulated, 

trawl fishermen have rarely targeted 

smoothhound sharks. Because 

smoothhound sharks are caught and 

retained incidentally when fishing for 

other species, it is not likely that trawl 

fishermen will change their fishing 

effort or behavior to catch smoothhound 

sharks solely because of the 

implementation of a retention limit. 

Comment 20: Implementing a 

percentage-based retention limit will be 

difficult to comply with since it will 

require that both the smoothhound 

shark portion of the catch and the total 

catch be weighed. Obtaining at-sea 

weights is very difficult, so it will be 

difficult to definitively calculate the 

percent of catch while at sea. 

Enforcement action could only occur at 

the dock. Many comments 

recommended that a single total 

allowable weight of smoothhound 

sharks should be used as the retention 

limit. The Mid-Atlantic Fishery 

Management Council encouraged NMFS 

to explore a 5,000 lb trip limit as an 

alternative to the 25-percent retention 

limit. 

Response: This comment was 

expressed by several constituents. 

Although NMFS did not include an 

alternative for an absolute weight 

retention limit in the proposed rule, the 

Agency did perform additional analyses 

pursuant to this comment for the final 

rule to determine the feasibility of this 

recommendation. The analysis was 

based upon the preferred alternative 

(i.e., a 25-percent smoothhound shark 

retention limit relative to total catch). 

The next step was to determine an 

absolute weight that is equivalent to the 

25-percent retention limit. To calculate 

an absolute weight equivalent, NMFS 

analyzed VTR data from trawl trips that 

caught smoothhound sharks between 

2000 and 2009. As expected, the vast 

majority of trawl trips had a very low 

total weight of smoothhound sharks, 

which is indicative of an incidental 

fishery. However, there was very little 

correlation between percent catch and 

weight. This is likely due to the wide 

range in hold capacities of vessels that 

retain smoothhound sharks caught in 

trawl gear. Once the smoothhound trawl 

trips were plotted, NMFS investigated 

several options to find an equivalent 

weight, including the use of ‘‘best fit’’ 

trend lines and finding a retention 

weight that incorporates the same 

proportion of trips as the preferred 

alternative (89 percent of trips). Due to 

the wide range of weights, NMFS was 

not able to determine a useable and 

robust retention limit equivalent to 25 

percent catch. Furthermore, the two 

methods found equivalent retention 

limits that ranged from 145 lbs–900 lbs; 

both of which are substantially lower 

than the MAFMC’s suggestion, and too 

low and variable to maintain the 

historical nature of the trawl fishery. 

Through this analysis, NMFS 

determined that an absolute weight 

retention limit would not prevent 

directed effort by smaller trawl boats 

with low catch levels and could be 

overly restrictive for larger vessels. 

Thus, NMFS is implementing 

Alternative B2, which provides a 

‘‘sliding scale’’ in the form of a 

percentage and allows trawl vessels of 

all sizes to retain incidentally-caught 

smoothhound sharks while also 

preventing all trawl vessels from 

directing effort on smoothhound sharks. 

This approach is consistent with other 

HMS incidental trawl retention limits, 

including swordfish. With regards to 

compliance, trawl fishermen are 

encouraged to maintain an ongoing tally 

during fishing operations to ensure that 

their smoothhound shark catch is not 

excessive. Because trawls are being 

managed as an incidental gear, trawl 

fishermen are discouraged from actively 

targeting smoothhound sharks. NMFS 

agrees that at-sea enforcement of the 25- 

percent retention limit will be difficult 

in some cases but disagrees that it is 

impossible in all cases. As the 

commenter notes, the retention limit 

may also be enforced dockside during 

offloading. 

Comment 21: Trawl gear, like gillnet 

gear, should be an authorized gear in the 

smoothhound shark fishery and 

fishermen should be allowed to direct 

effort on the species. 

Response: As discussed in the 

response to Comment 7, trawl gear is 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49373 

not authorized for any HMS. However, 

because smoothhound sharks have 

historically been captured incidentally 

while trawling for squid, summer 

flounder, scup, whiting, and other 

species, NMFS is implementing a small 

allowance for all trawl vessels to retain 

incidentally-caught smoothhound 

sharks similar to the small allowance 

allowed for swordfish by squid trawl 

vessels. This allowance is intended to 

maintain the historical nature of 

incidental catches of smoothhound 

sharks in Atlantic trawl fisheries. 

Comment 22: A smoothhound shark 

stock assessment should be a priority 

due to the unknown status of these 

species. 

Response: A stock assessment is 

fundamental to ensure the effective 

management of a fishery. However, 

stock assessments require a variety of 

data inputs, including landings and 

discard data reported by fishermen. At 

this time, much of the data on 

smoothhound sharks are incomplete. 

One of the objectives of Amendment 3 

is to collect data that can be used to 

inform future stock assessments. 

Comment 23: NMFS received a 

comment requesting that trawl 

fishermen that catch smoothhound 

sharks not be required to fill out a 

separate logbook. 

Response: Under Alternative B2, the 

final action, trawl fishermen who retain 

incidentally-caught smoothhound 

sharks will be required to obtain an 

open-access commercial smoothhound 

shark permit. Currently, there is no 

reporting requirement associated with 

the permit. In the future, NMFS may 

decide that logbooks or other reporting 

mechanisms are appropriate. However, 

NMFS will not pursue this unless 

existing reporting methods prove to be 

inadequate, until NMFS understands 

the universe of permitted smoothhound 

shark fishermen, and until NMFS can 

determine the most appropriate 

mechanism for reporting while 

minimizing duplication with current 

reporting requirements. 

Comment 24: Smoothhound shark 

trawl landings should be deducted from 

the overall smoothhound shark quota 

and there should be no specific gear 

quota allocations. 

Response: NMFS agrees. The 

smoothhound shark quota was 

developed in Amendment 3 to the 

Consolidated HMS FMP and will be 

implemented when other management 

measures for smoothhound sharks 

become effective. All smoothhound 

shark landings will be counted against 

the quota, regardless of gear type. 

Comment 25: NMFS received a 

comment indicating that the proposed 

action could increase trawl fishing effort 

and possibly result in increased impacts 

to essential fish habitat (EFH), the sea 

floor, and protected resources. 

Response: This final rule will 

establish a retention limit for 

smoothhound sharks caught 

incidentally while fishing for other 

species with trawl gear. NMFS does not 

expect that trawl fishing effort will 

change because of this action. Although 

the vast majority of historical trawl trips 

that landed smoothhound sharks could 

still occur under Alternative B2, 11 

percent of historically-acceptable trips 

would likely be precluded. Therefore, 

any change in trawl fishing that could 

potentially occur as a result of this final 

action would tend to be in the direction 

of decreased fishing effort, due to the 

implementation of a limit on the 

amount of smoothhound sharks that can 

be retained by trawl vessels. 

Comment 26: One commenter stated 

that the smoothhound shark retention 

limit will lead to regulatory discards 

and that more research should be 

performed to determine the proportion 

of smoothhound sharks that are alive at 

trawl haulback. This information could 

be used to develop regulations to 

require discarding of live individuals 

while allowing for the retention of dead 

smoothhound sharks. Another 

commenter stated that only males 

should be allowed to be retained and 

that females should be released to allow 

for greater reproductive potential in the 

population. 

Response: NMFS agrees that 

additional research would be helpful to 

fully characterize the incidental 

smoothhound shark fishery. Data 

collected from additional research could 

provide information regarding trawl 

gear mortality and smoothhound sex 

ratios. Once management measures are 

in place, including permitting, 

reporting, and observer requirements, 

NMFS will be able to collect this 

information and implement additional 

management measures, if necessary. 

Currently, however, the available 

information does not support liverelease or sex-specific release 

requirements. 

Comment 27: Allowing trawl 

fishermen to retain a limited amount of 

smoothhound sharks is not likely to 

impact the stock. 

Response: NMFS agrees. Although a 

formal stock assessment has not been 

performed, catch rates and levels have 

stayed reasonably consistent over the 

past 10 years. There is no indication 

that the smoothhound shark stock 

cannot support current harvest levels. 

This final action will not increase trawl 

fishing effort levels or rates. It 

implements a management measure that 

will keep trawl fishing effort 

approximately at current levels. 

Comment 28: Several commenters 

stated that while the ecological impacts 

are negligible, the economic benefits 

could be large for many trawl fishermen. 

Response: NMFS does not expect that 

trawl fishing effort levels or rates will 

change as a result of this final rule. As 

such, no new direct, indirect, or 

cumulative ecological impacts are 

expected. However, continuing to allow 

trawl fishermen to retain and sell 

incidentally-caught smoothhound 

sharks, rather than prohibiting trawl 

landings, will maintain some revenue 

from the species. The allowance to 

retain and sell a limited number of 

smoothhound sharks is expected to 

maintain revenues at levels just below 

the 10-year average of $68,968 annually 

across the entire trawl fishery. 

Comment 29: One commenter 

disagreed with the statement in the 

economic impact analysis that 

businesses supporting trawl fisheries do 

not rely on smoothhound shark 

landings, especially as the statement 

applies to Ocean City, MD. 

Response: Smoothhound sharks are 

overwhelmingly caught and retained 

incidentally in Atlantic trawl fisheries 

while fishing for other species. They are 

not the primary reason for fishermen to 

embark on a trawl trip. NMFS is 

establishing a trawl retention limit that 

will allow 89 percent of historical trips 

that landed smoothhound sharks to 

continue to occur. Because the retention 

of trawl-caught smoothhound sharks 

will continue to be allowed at historical 

levels, businesses supporting trawl trips 

are not likely to be affected by this 

rulemaking. If, after the fishery is better 

characterized through mandatory 

permitting, reporting, and observer 

coverage, it is determined that 

smoothhound sharks caught in trawl 

gear have a greater indirect economic 

impact, the economic analyses will be 

updated. 

Comment 30: NMFS received several 

comments asking how the prohibition 

on shark finning, the 2010 Shark 

Conservation Act, and the fins-attached 

requirement implemented through the 

final rule for Amendment 3 to the 2006 

HMS FMP would impact this 

rulemaking. Comments ranged from 

support for a fins-attached requirement 

in the smoothhound shark fishery, to a 

modification of the 5-percent fin-tocarcass ratio, to opposition to a finsattached requirement due to efficiency 

and meat quality reductions. 

Additionally, NMFS received 

suggestions regarding how the 2010 

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49374 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

Shark Conservation Act should be 

implemented in Atlantic trawl fisheries. 

Response: The 2010 Shark 

Conservation Act was signed into law 

on January 4, 2011. This Act, among 

other things, prohibits the removal of 

fins from sharks in the U.S. EEZ. The 

Act also includes a separate provision 

addressing the smoothhound shark 

fishery. NMFS is currently preparing a 

proposed rule to implement the 2010 

Shark Conservation Act and will 

consider these comments during that 

rulemaking. This final rule, however, 

does not address the landing condition 

of any shark species aboard a vessel or 

when landed and, therefore, these 

comments are outside the scope of this 

rulemaking. 

Comment 31: NMFS received a 

comment requesting that the Agency not 

move forward with this rule until after 

the 2010 Shark Conservation Act is 

implemented. 

Response: The 2010 Shark 

Conservation Act addresses the 

condition of sharks aboard a vessel or 

when landed. Under this final rule, 

NMFS is providing for the limited 

retention of smoothhound sharks caught 

incidentally in trawl gear to maintain 

the historical nature of the trawl fishery 

and to minimize changes, consistent 

with the intent of Amendment 3 to the 

HMS FMP. Thus, the final action in this 

rule does not address the condition of 

sharks aboard a vessel or when landed. 

The 2010 Shark Conservation Act will 

be implemented in a separate 

rulemaking and need not be completed 

first. 

Comment 32: Some commenters 

disagreed with the Draft Finding of No 

Significant Impact (FONSI) assertion 

that the action is unlikely to jeopardize 

the sustainability of any non-target 

species. The commenters indicated that 

because this rule could lead to an at-sea 

processing allowance, enforcement will 

be complicated and will result in 

fishermen finning other shark species. 

The sustainability of other shark species 

would be in jeopardy due to potential 

at-sea processing allowances. 

Response: The prevention of shark 

finning is an important objective for 

NMFS. As noted in the response to 

Comment 30, NMFS is preparing a 

proposed rule to implement the 2010 

Shark Conservation Act. Within the 

context of this final rule, the action to 

establish a retention limit for 

smoothhound sharks in the Atlantic 

trawl fisheries is not likely to jeopardize 

the sustainability of any non-target 

shark species. This action is not 

expected to alter trawl fishing effort 

levels and, therefore, no new impacts to 

non-target shark species are expected. 

Comment 33: NMFS received a 

comment stating that the Draft FONSI is 

erroneous because smoothhound shark 

issues became controversial after the 

2010 Shark Conservation Act became 

law. Therefore, an environmental 

impact statement (EIS) should have 

been prepared rather than an 

environmental assessment (EA). 

Response: The Draft FONSI 

considered 16 criteria in making a 

determination of no significant impact. 

Each criterion is relevant to making a 

determination and has been considered 

individually, as well as in combination 

with the others. The significance of this 

action was analyzed based on the NAO 

216–6 criteria and the President’s 

Council on Environmental Quality 

(CEQ) context and intensity criteria, 

including the eighth criterion: ‘‘To what 

degree are the effects on the quality of 

the human environment expected to be 

highly controversial?’’ NMFS notes that 

interest in both the swordfish and 

smoothhound shark portions of the 

proposed rule was low during previous 

outreach efforts. NMFS recognizes that 

the visibility of, and interest in, the 

smoothhound shark fishery may have 

increased with passage of the 2010 

Shark Conservation Act. However, such 

increased interest is not enough to make 

the proposed action controversial, for 

the purpose of NEPA. The term 

‘‘controversial’’ does not refer to the 

mere existence of opposition to, or 

interest in a proposed action; rather 

‘‘controversial’’ refers to cases where a 

substantial dispute exists as to the size, 

nature, or effect of the major federal 

action. Such substantial dispute does 

not exist here. Moreover, as discussed 

above, any heightened interested in or 

controversy surrounding the Shark 

Conservation Act is unrelated to 

implementing a limited smoothhound 

retention limit in Atlantic trawl 

fisheries. As such, controversy resulting 

from the legislation does not impact 

NMFS’ finding of no significant impact. 

NMFS has determined that the FONSI 

was accurate and warranted, per NOAA 

NEPA guidance, thus an EA is the 

appropriate level of analysis for the 

current final rule rather than an EIS. 

Comment 34: NMFS received a 

comment indicating that the rule will 

have implications for the entire Atlantic 

and Gulf of Mexico, but the EA only 

focuses upon the mid-Atlantic region. 

Response: The vast majority of trawl 

trips that catch smoothhound sharks 

have historically occurred in the midAtlantic region. As such, the 

characterization of the fishery focused 

upon this area. It is not presently 

possible for NMFS to speculate what the 

smoothhound shark trawl fishery may 

look like in areas where the fishery 

could expand. If the incidental 

smoothhound shark trawl fishery begins 

to expand outside of the mid-Atlantic 

region, NMFS will conduct additional 

analyses to characterize that fishery and 

develop new management measures, if 

necessary. 

Comment 35: NMFS received a 

comment that, by not authorizing trawl 

gear, the Agency is attempting to 

circumvent ESA requirements to 

prepare a Biological Opinion (BiOp). 

The commenter stated that if NMFS 

intends to allow trawl gear to catch 

smoothhound sharks, the Agency 

should prepare a new BiOp for the trawl 

fishery. 

Response: NMFS disagrees. BiOps 

document whether a Federal activity is 

likely to jeopardize the continued 

existence of an ESA-listed species or 

result in the destruction or adverse 

modification of a species critical habitat. 

Typically, a BiOp is prepared for each 

directed fishery and can contain 

requirements to mitigate or prevent 

impacts to endangered species or 

critical habitat. It is not common for a 

BiOp to be prepared for an incidental 

fishery because the fishing activities 

have already been assessed under the 

directed fishery’s BiOp. In the case of 

smoothhound sharks and trawl gear, the 

directed trawl fisheries each have BiOps 

that have assessed the fishing activity 

and possibly required mitigation 

measures. For example, when 

smoothhounds sharks are caught 

incidentally in trawl gear, they are most 

often caught in the directed fisheries for 

Loligo squid, summer flounder, scup, 

croaker, silver hake (whiting), and skate. 

The Loligo squid fishery was analyzed 

in the 2010 Mackerel Squid and 

Butterfish BiOp (http://www.nero.noaa.

gov/prot_res/section7/NMFSsignedBOs/SMB%20BIOP%202010.pdf.) 

The summer flounder and scup fisheries 

were analyzed in the 2010 Summer 

Flounder, Scup, and Black Sea Bass 

BiOp (http://www.nero.noaa.gov/prot_

res/section7/NMFS-signedBOs/FLS_

SCP_BSB%20BIOP%202010.pdf). The 

silver hake fishery was analyzed in the 

2010 Northeast Multispecies BiOp 

(http://www.nero.noaa.gov/prot_res/

section7/NMFS-signedBOs/MULTI

SPECIES%20BIOP%202010.pdf). The 

skate fishery was analyzed in the 2010 

Northeast Skate Complex BiOp (http:// 

www.nero.noaa.gov/prot_res/section7/

NMFS-signedBOs/SKATE%20BIOP%

202010.pdf). Since the directed trawl 

fisheries that incidentally catch 

smoothhound sharks have already been 

analyzed under the directed fishery’s 

BiOps, it would be duplicative and 

unnecessary to reinitiate ESA 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49375 

consultation for the incidental 

smoothhound shark trawl fishery. 

Changes From the Proposed Rule 

Minor changes to the paragraphs at 50 

CFR 635.4(f)(1) and 635.4(n) have been 

made to clarify that the term ‘‘or sold’’ 

in the original paragraphs means ‘‘or 

from which Atlantic swordfish are 

sold.’’ 

Classification 

The NMFS AA has determined that 

this final action is necessary for the 

conservation and management of the 

HMS fishery, and that it is consistent 

with the Magnuson-Stevens Act, the 

2006 Consolidated Atlantic HMS FMP 

and its amendments, ATCA, and other 

applicable law. 

There is good cause under 5 U.S.C. 

553(d)(3) to waive the 30-day delay in 

effective date for the Incidental HMS 

Squid Trawl provisions because such 

delay would be contrary to the public 

interest. Failure to implement this rule 

immediately would undermine its 

intent. The squid trawl management 

measures in this final rule will reduce 

economic waste by converting 

incidentally-caught swordfish 

regulatory dead discards into landings 

for sale and human consumption, 

improve data collection, and have no 

adverse environmental impacts. This 

rule will grant eligibility for all Illex 

squid moratorium permit holders to be 

issued a new Incidental HMS Squid 

Trawl permit that will allow these 

vessels to retain incidentally-caught 

swordfish that previously would have 

been discarded. Based upon observer 

data, NMFS estimates that this action 

would allow a total of approximately 

172 swordfish per year to be retained 

that previously had to be discarded 

assuming that 13 active Illex vessels 

discard 13.2 swordfish per year (or from 

1.1–3.3 swordfish/trip). In the unlikely 

event that all 76 permitted Illex vessels 

were to become active and retain the 

maximum allowable amount of 

swordfish per trip, it is possible that 

4,560 or more swordfish could be 

retained (76 vessels * 4 trips/yr. * 15 

swordfish/trip). Because the Illex squid 

trawl fishing season extends only 

through September of each year, any 

delay in effectiveness would be contrary 

to the public interest and against the 

intention of this rule to reduce 

regulatory dead discards of swordfish by 

squid trawl vessels. Finally, there is no 

hardship placed on the public by 

making this rule effective immediately. 

Those fishermen who do not apply for 

the permit enacted by this rule can 

continue their current practice of 

discarding swordfish. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared. The FRFA 

incorporates the Initial Regulatory 

Flexibility Analysis (IRFA), a summary 

of the significant issues raised by the 

public comments in response to the 

IRFA, NMFS’s responses to those 

comments, and a summary of the 

analyses completed to support the 

action. 

The FRFA analyzed the anticipated 

economic impacts of the final action 

and any significant economic impacts 

on small entities. A summary of the 

FRFA is below. The full FRFA and 

analysis of social and economic impacts 

are available from NMFS (see 

ADDRESSES). 

In compliance with section 604(a)(1) 

of the Regulatory Flexibility Act, the 

purpose of this final 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. 

Section 604(a)(2) of the Regulatory 

Flexibility Act requires NMFS to 

summarize significant issues raised by 

the public in response to the IRFA, a 

summary of NMFS’ assessment of such 

issues, and a statement of any changes 

made as a result of the comments. The 

IRFA was included as part of the draft 

EA and was summarized in the 

proposed rule. NMFS did not receive 

any comments specific to the IRFA; 

however, NMFS did receive comments 

related to the overall economic impacts 

of the proposed rule. Those comments 

and NMFS’ responses to them are 

mentioned above in the preamble for 

this rule. In particular, comments 2, 28, 

and 29 address the rule’s economic 

impacts. There are no substantive 

changes from the proposed rule as a 

result of these economic comments. 

Section 604(a)(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 openaccess smooth dogfish permit when it 

becomes required in 2012, are small 

entities under the Small Business 

Administration (SBA) size standards. 

All potentially affected 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). These are 

the Small Business Administration 

(SBA) size standards for defining a 

‘‘small’’ versus ‘‘large’’ business entity 

in this industry. 

The final 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 when they are 

fully incorporated into the HMS 

management unit, 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 604(a)(4) of the RFA, 

agencies are required to describe any 

new reporting, record-keeping, and 

other compliance requirements. The 

new Federal permit requirement for an 

Incidental HMS Squid Trawl permit 

will allow NMFS to collect data 

regarding participants in the fishery and 

swordfish landings through Federal 

dealer reports. The Federal Incidental 

HMS Squid Trawl permit requirement 

will 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 an annual renewal fee 

of approximately $20 may be required 

in the future. 

When developing this action, NMFS 

considered different ways to reduce the 

regulatory burden on and provide 

flexibility to the regulated community, 

consistent with the recent Presidential 

Memorandum on Regulatory Flexibility, 

Small Business, and Job Creation 

(January 18, 2011). NMFS currently 

intends to issue the new Incidental 

HMS Squid Trawl permit out of its 

Northeast Regional Permit Office 

pursuant to this final rule and other 

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49376 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

applicable provisions of 50 CFR part 

635. NMFS will use similar application 

procedures as those of the Illex squid 

moratorium permit. Because both 

permits will be issued from the same 

office using similar forms, the amount of 

paperwork and completion time will be 

reduced. Similarly, NMFS will continue 

to require squid trawl vessel owners to 

report their catch and landings in the 

Northeast Fishing Vessel Trip Report 

(VTR), rather than requiring a separate 

HMS logbook. This will avoid 

duplicative reporting requirements. By 

utilizing current operational procedures 

for permit issuance and reporting, the 

regulatory burden on regulated entities 

will be reduced. 

Under section 604(a)(5), agencies are 

required to describe any alternatives to 

the rule which accomplish the stated 

objectives and which minimize any 

significant economic impacts. Economic 

impacts are discussed below and in the 

Environmental Assessment for the 

action. Additionally, the Regulatory 

Flexibility Act (5 U.S.C. 603(c)(1)–(4)) 

lists four general categories of 

significant alternatives that would assist 

an agency in the development of 

significant alternatives. 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. 

In order to meet the objectives of this 

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 final 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 

VTR. NMFS intends to continue to 

utilize this reporting mechanism for all 

vessels that will 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 Incidental 

HMS Squid Trawl permit will be the 

same, or similar, to the process used to 

apply for an Illex squid moratorium 

permit. The only prerequisite for 

obtaining the new permit will 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 final 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 final action, 

will 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. 

The no action alternative (A1) would 

not result in any additional economic 

impacts to small entities in the shortterm. However, this alternative 

contributes to a loss of potential income 

by squid trawl vessels that 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 that 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–$4,145.40 annually in 

unrealized income individually 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 all 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 all 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 final action. 

The chosen alternative, Alternative 

A2, will 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 

Alternative A2 will 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—$4,145.40 

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 all 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 

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then extrapolating to determine the 

average number of swordfish discards 

per year for active vessels. Also, by 

implementing a permit requirement, 

NMFS will obtain important fishery 

management information, such as the 

identification of participants in the 

squid trawl fishery that may 

occasionally catch swordfish. This 

information will help in outreach 

efforts. The Federal Incidental HMS 

Squid Trawl permit requirement will 

require a permit application similar to 

other current HMS permits. The 

information collected on the application 

will include vessel information and 

owner identification and contact 

information. A modest fee to process the 

application and an annual renewal fee 

of approximately $20 may be required 

in the future. This alternative is selected 

because it will 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 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 Alternative 

A2. However, there would be no costs 

or recordkeeping burden 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 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 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 HMS vessels. 

Removing the HMS permitting 

requirements for Illex squid trawl 

vessels would worsen this situation. 

Furthermore, it would hamper NMFS’s 

efforts to improve outreach and 

communications with this small, but 

important, HMS constituency. Without 

a new HMS permit, NMFS could be 

deprived of important information 

regarding squid trawl vessel swordfish 

landings and fishery participation. 

Therefore, Alternative A3 was not 

selected as the final action because it 

would not provide additional 

information for fishery management 

purposes. 

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 

potentially as many as 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), when smoothhound 

sharks are fully incorporated into the 

HMS management unit in the future, the 

retention of smoothhound sharks would 

be prohibited by trawl vessels without 

the additional regulatory action 

contained in this rulemaking. Therefore, 

Alternative B1 would have moderate 

direct short-term and long-term negative 

social and economic impacts when 

smoothhound sharks are fully 

incorporated into the HMS management 

unit. 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 12 

percent (per the 2010 Shark 

Conservation Act, Public Law 111–348), 

total revenues from smoothhound 

sharks caught in trawl gear averages 

$68,968 per year. Thus, in aggregate, 

under Alternative B1, trawl fishermen 

could collectively lose $68,968 per year 

across up to 266 vessels. Individually, 

each vessel could lose approximately 

$259 annually in revenue under the noaction alternative. This alternative was 

not selected because prohibiting the 

retention of incidentally-caught 

smoothhound sharks by trawl gear 

would be inconsistent with NMFS’s 

intent in Amendment 3 to minimize 

changes to the smoothhound fishery by 

allowing for incidental trawl landings. 

Alternative B2, the final action, will 

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, 

after smoothhound sharks are fully 

incorporated into the HMS management 

unit in the future, Alternative B2 will 

provide 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, when 

smoothhound sharks are fully 

incorporated into the HMS management 

unit, they would no longer be able to do 

so. Under Alternative B2, however, they 

will continue to be allowed to retain 

and sell incidentally-caught 

smoothhound sharks. Calculating the 

exact level of revenue that will 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 $68,968, and 

the fact that Alternative B2 will 

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 

when smoothhound sharks are fully 

incorporated into the HMS management 

unit. This alternative was selected as the 

final action 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 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 

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49378 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

and long-term positive social and 

economic impacts when smoothhound 

sharks are fully incorporated into the 

HMS management unit. 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 when smoothhound sharks 

are fully incorporated into the HMS 

management unit. Under Alternative B3, 

however, they would continue to be 

allowed to retain and sell incidentallycaught 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 $68,968, 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 when 

smoothhound sharks are fully 

incorporated into the HMS management 

unit. This alternative was not selected 

because allowing up to 50 percent of a 

trawl trip to consist of smoothhound 

sharks would not effectively prevent a 

directed trawl fishery for smoothhound 

sharks from occurring. 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, Alternative A2 will 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, Alternative B2 will have 

minor direct short-term positive 

economic impacts when smoothhound 

sharks are fully incorporated into the 

HMS management unit. Trawl vessels 

will 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 $68,968, and the fact that 

Alternative B2 will continue to allow 

approximately 89 percent of historical 

smoothhound trawl trips to occur, 

fishermen will experience moderate 

positive social and economic impacts 

compared to the no-action alternative 

when smoothhound sharks are fully 

incorporated into the HMS management 

unit. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. Copies of the 

compliance guide for this final rule are 

available (see ADDRESSES). 

This final rule contains a collectionof-information requirement subject to 

the Paperwork Reduction Act (PRA) and 

which has been approved by OMB 

under control number 0648–0327. The 

public reporting burden to apply for the 

Incidental HMS Squid Trawl permit is 

estimated to average 15 minutes per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding these burden estimates, or any 

other aspect of this data collection, 

including suggestions for reducing the 

burden, to the HMS Management 

Division (see ADDRESSES) and by e-mail 

to OIRA_Submission@omb.eop.gov, or 

fax to (202) 395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

List of Subjects in 50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties. 

Dated: August 4, 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 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), (f)(2), (h)(1) heading, (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 or possessed 

with an intention to sell or from which 

Atlantic swordfish are sold must obtain, 

in addition to any other required 

permits, only one of three types of 

commercial limited access swordfish 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49379 

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 

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, or possessed 

with an intention to sell, or from which 

Atlantic swordfish are 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 

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49380 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

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. 

■ 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, and 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. 2011–20330 Filed 8–9–11; 8:45 am] 

BILLING CODE P 

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