[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Proposed Rules]
[Pages 15701-15712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6455]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 080603729-8750-01]
RIN 0648-AW83


Highly Migratory Species; 2006 Consolidated Highly Migratory 
Species Fishery Management Plan; Amendment 4

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: This fishery management plan (FMP) amendment addresses 
Atlantic highly migratory species (HMS) fishery management measures in 
the U.S. Caribbean Region. There are substantial differences between 
some segments of the HMS fisheries in the Caribbean Region and the HMS 
fisheries that occur off the mainland of the United States, including: 
Limited fishing permit and dealer permit possession; smaller vessels; 
limited availability of processing and cold storage facilities; shorter 
trips; limited profit margins; and high local consumption of catches. 
These differences can sometimes create an awkward fit between current 
Federal HMS fishery regulations applicable to the whole Atlantic HMS 
fishery and the traditional operation of Caribbean fisheries, which has 
led to fewer Caribbean Region fishermen and vessels obtaining required 
permits and reporting data needed for effective fisheries management. 
NMFS is proposing management measures that would amend the HMS fishery 
management regulations for the U.S. Caribbean Region to better 
correspond with the traditional operation of the fishing fleet in the 
region and to provide NMFS with an improved capability to monitor and 
sustainably manage those fisheries. With this amendment, NMFS proposes 
to create an HMS Caribbean Small Boat Commercial Permit (CSBP) allowing 
fishing for and sales of bigeye, albacore, yellowfin, and skipjack 
(BAYS) tunas, Atlantic swordfish, and Atlantic sharks within local 
Caribbean markets. The proposed CSBP management measures include 
specific authorized species and retention limits, modification of 
reporting requirements, authorization of specific gears, vessel size 
restrictions, and consideration of mandatory workshop training.

[[Page 15702]]

Additionally, NMFS proposes to stipulate that the CSBP could not be 
held in combination with any other HMS permit.
    This proposed rule modifies regulatory text that is also proposed 
to be amended by the HMS Electronic Dealer Reporting System (E-dealer) 
rulemaking (RIN 0648-BA75). The proposed language included in the HMS 
E-dealer rulemaking is being utilized in the proposed rule for this 
action.

DATES: Written comments will be accepted until June 14, 2012. NMFS will 
announce the dates and locations of public hearings in a future Federal 
Register notice.

ADDRESSES: NMFS will announce the dates and locations of public 
hearings in a future Federal Register notice.
    You may submit comments on this document, identified by NOAA-NMFS-
2012-0053, by any of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0053 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
    <bullet> Mail: Submit written comments to Margo Schulze-Haugen, 
1315 East-West Highway, Silver Spring, MD 20910.
    <bullet> Fax: 301-713-1917; Attn: Margo Schulze-Haugen.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Greg Fairclough or Randy Blankinship 
at 727-824-5399.

SUPPLEMENTARY INFORMATION: Atlantic tunas and swordfish are managed 
under the dual authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) and the Atlantic Tuna 
Conventions Act (ATCA), which authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations as may be necessary and 
appropriate to implement recommendations of ICCAT. Federal Atlantic 
shark fisheries are managed under the authority of the Magnuson-Stevens 
Act. The authority to issue regulations under the Magnuson-Stevens Act 
and ATCA has been delegated from the Secretary to the Assistant 
Administrator for Fisheries, NOAA (AA). On May 28, 1999, NMFS published 
in the Federal Register (64 FR 29090) final regulations, effective July 
1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in 
the Federal Register (71 FR 58058) final regulations, effective 
November 1, 2006, implementing the 2006 Consolidated HMS FMP, which 
details the management measures for Atlantic HMS fisheries, including 
the HMS handgear fishery.

Background

    A brief summary of the background of this proposed action is 
provided below. A more complete summary of Atlantic HMS management can 
be found in the 2006 Consolidated HMS FMP, in the annual HMS SAFE 
Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/.
    In 2007, NMFS initiated a potential amendment to the 2006 
Consolidated HMS FMP (Amendment 4) to develop and implement management 
measures for HMS in the Caribbean Region. Pre-scoping for the amendment 
commenced in the winter of 2007/2008. National Environmental Policy Act 
(NEPA) scoping was initiated by publishing a Notice of Intent (NOI) to 
prepare an Environmental Impact Statement (EIS) in the Federal Register 
on May 27, 2008 (73 FR 30381). The NOI indicated that the EIS would 
address issues regarding authorized fishing gear and fishing vessel and 
dealer permitting in the Caribbean Region, as well as examine 
management alternatives to improve vessel and dealer reporting, data 
collection, and Agency outreach. On July 14, 2008, NMFS announced the 
availability in the Federal Register (73 FR 40301) of an ``issues and 
options'' paper describing measures that could be included in a 
potential amendment. In the same announcement, NMFS provided details 
for scoping meetings and requested comments on the issues and options 
document. The comment period was open until October 31, 2008. NMFS 
presented the issues and options paper to the Caribbean, Gulf of 
Mexico, South Atlantic, Mid-Atlantic, and New England Fishery 
Management Councils. Additionally, NMFS presented the issues and 
options presentation and a summary of the comments received during 
scoping to the HMS Advisory Panel (AP) at its September 2008 meeting. A 
summary of the scoping comments was released on January 15, 2009. A 
predraft of the proposed amendment, including specific management 
alternatives, was made available to the public on August 21, 2009. On 
July 13, 2011 (76 FR 41216), NMFS published a NOI to prepare an 
Environmental Assessment (EA) for Amendment 4. After considering 
potential environmental effects of the measure and substantive comments 
received through formal scoping and other means, NMFS preliminarily 
determined that an EA would provide an appropriate level of NEPA review 
for Amendment 4 and that preparing an EIS is not necessary. NMFS 
anticipates that this proposed action will have a low level of 
potential adverse environmental impacts due to the limited geographic 
area of the small-scale Caribbean HMS fishery, small size of the 
vessels involved, the relatively low number of known participants, and 
the use of traditional handgears. Additionally, any potential impacts 
to protected species are expected to be minimal.
    Currently, no HMS limited access fishing permits (LAPs) and only a 
small number of HMS open access fishing permits and dealer permits are 
held in the U.S. Caribbean Region. This is likely due to numerous 
factors, including the high costs typically associated with obtaining 
HMS LAPs and owning/operating a commercial vessel, relatively low catch 
volume and revenue, the low number of HMS LAPs that were initially 
issued to residents of the U.S. Caribbean, language barriers, and a 
general lack of awareness of HMS fishing regulations, among other 
factors. The low number of LAPs initially issued to fishermen in the 
U.S. Caribbean Region may have also been due to local fishermen not 
meeting previous qualification requirements or because they failed to 
apply for LAPs during the issuance process. The small number of HMS 
dealer permits in the region may be a result of limited processing and 
cold storage facilities, and the

[[Page 15703]]

customary sales and distribution system for seafood in the U.S. 
Caribbean Region, among other reasons. The low number of HMS fishing 
and dealer permits has resulted in limited catch and landings data from 
the U.S. HMS fisheries in the U.S. Caribbean Region, even though there 
are small-scale commercial fishermen targeting HMS, particularly 
yellowfin tuna. The lack of catch and landings data complicates fishery 
management efforts in the region. In some cases, traditionally utilized 
fishing gears and economically necessary practices, such as targeting 
both pelagic and reef fish species with multiple gear types during a 
single trip, may diverge from existing regulations and fishing norms in 
U.S. mainland fisheries.
    NMFS has benefited from receiving various recommendations to 
improve management of the HMS permitting program and HMS fisheries in 
the U.S. Caribbean Region from the HMS AP, Caribbean Fishery Management 
Council (CFMC), territorial governments, local fishermen, and Non-
Governmental Organizations (NGOs). Some suggested improvements to 
management of HMS fisheries in the U.S Caribbean Region received to 
date include: creating a new commercial Caribbean HMS permit; combining 
Caribbean vessel and dealer permits (thereby allowing small-scale 
vessels to retail/wholesale catch); authorizing specific gears; 
limiting small-scale vessel size; and providing additional training and 
outreach for compliance with regulations, species identification, and 
proper reporting.
    Based on discussions with the HMS AP, CFMC, and the territorial 
governments, NMFS believes that the depletion of continental shelf 
fishery resources may be increasing local interest in exploiting HMS 
resources in some areas. As local fishermen become more dependent on 
offshore fishery resources and increase fishing effort on HMS, there is 
an increased need for NMFS to consider ways of including small-scale 
Caribbean fishing vessels into the HMS permitting and reporting regime 
in order to collect better catch and effort data and provide for 
sustainably managed fisheries.
    This amendment is needed to implement management measures specific 
to the unique characteristics of the U.S. Caribbean Region. The purpose 
of this amendment is to enact HMS management measures that better 
correspond with the traditional operation of the fishing fleet in the 
U.S. Caribbean Region and to provide NMFS with an improved capability 
to monitor and sustainably manage those fisheries.
    The specific objectives for this action are to:
    <bullet> Increase participation in the HMS Federal fishery 
management program in the U.S. Caribbean Region;
    <bullet> Expand regional HMS permit availability and increase 
permitting program awareness, participation, and compliance in the U.S. 
Caribbean region;
    <bullet> Improve regional HMS catch and fishing effort data;
    <bullet> Examine and implement regionally tailored HMS management 
strategies, as appropriate;
    <bullet> Provide targeted training and outreach to HMS fishery 
participants; and
    <bullet> Improve NMFS' capability to monitor and sustainably manage 
U.S. Caribbean HMS fisheries.
    With this amendment, NMFS proposes to create a U.S. Caribbean-
Region-specific permit allowing fishing for and sales of BAYS tunas, 
swordfish, and sharks in that region; collect HMS landings data through 
NMFS' cooperation with existing territorial government programs; 
authorize the use of rod and reel, handline, harpoon, bandit gear, 
green-stick gear, and buoy gear; restrict the size of vessels eligible 
to be issued a CSBP to those 45 feet or less in length overall (LOA); 
limit the Caribbean permit to be valid only for fishing and sales in 
the U.S. Caribbean Region; and stipulate that the Caribbean permit may 
not be held in combination with any other HMS vessel permit.
    NMFS considered four alternatives ranging from maintaining the 
status quo to creating a new permit valid only in the Caribbean Region 
(as defined at 50 CFR 622.2), which could allow fishing for and sales 
of BAYS tunas, swordfish, and sharks (excluding sandbar) under specific 
limitations. NMFS assessed the impacts of the alternatives, which are 
composed of seven key topics: permitting/workshop certification; 
authorized species; retention limit ranges; reporting; authorized 
gears; vessel size restrictions; and regions. Instead of analyzing a 
range of alternatives under each individual topic, NMFS analyzed four 
alternatives that are composed of various suites of measures under the 
seven key topics.
    Alternative 1 would, among other things, maintain the current 
Atlantic HMS vessel and dealer permits structure, current upgrading 
restrictions, current authorized species and gear structure, current 
retention limits, and current observer and reporting requirements. 
Alternative 2 would create a new permit allowing fishing for and sales 
of BAYS tunas and swordfish under specific limitations. Alternative 3 
would create a new permit allowing fishing for and sales of BAYS tunas, 
swordfish, and sharks, under specific limitations. Alternative 3 
differs from Alternative 2 in that it could also allow for the 
retention of sharks. Alternative 4 would create a new permit allowing 
fishing for and sales of BAYS tunas, swordfish, and sharks, under 
specific limitations. Alternative 4 differs from Alternative 3 in that 
it could allow for higher retention limits of BAYS tunas, SWO, and 
Atlantic sharks, and would not limit vessel size.
    The preferred alternative (Alternative 3) would create an open 
access commercial vessel permit, the Caribbean Small Boat Commercial 
Permit (CSBP), which would authorize fishing for and sales of BAYS 
tunas, swordfish, and sharks in the U.S. Caribbean Region. CSBP holders 
would not be required to sell catches only to HMS permitted dealers and 
could retail their HMS catch, provided that specified reporting 
requirements are met. CSBP holders would be required to physically 
posses their permit, or a copy of their permit, at any point of HMS 
sale. The CSBP would not be valid for fishing for or sales of HMS 
outside of the U.S. Caribbean Region; nor could it be held on a vessel 
in combination with any other HMS vessel permit. The CSBP would be a 
commercial-only permit and, as such, would not allow the retention of 
billfish. Vessels issued a CSBP would be authorized to possess rod and 
reel, handline, harpoon, bandit gear, green-stick gear, and buoy gear. 
Under this alternative, rod and reel, handline, harpoon, bandit gear, 
green-stick gear, and buoy gear would be authorized for the harvest of 
BAYS tunas. Rod and reel, handline, harpoon, bandit gear, and buoy gear 
would be authorized for the harvest of SWO, and rod and reel, handline, 
and bandit gear would be authorized for the harvest of Atlantic sharks.
    Under the preferred alternative, retention limits could be set 
between 0 and 24 BAYS per vessel per trip, 0 to 6 swordfish per vessel 
per trip, and 0 to 3 non-sandbar LCS per vessel per trip, and 0 to 16 
SCS and pelagic sharks (combined) per vessel per trip. For both BAYS 
and swordfish, the current size limits and landing restrictions at 
Sec. Sec.  635.20 and 635.30 would apply. For sharks, there would be no 
size limits, as there is no current Federal commercial shark size 
limit; however, current landing restrictions at Sec.  635.30, such as 
``fins attached'' requirements, would apply.
    Although under the preferred alternative, NMFS intends to set the 
shark trip limits at 0, NMFS proposes to

[[Page 15704]]

require applicants for a CSBP to complete a NMFS Atlantic Shark 
Identification Workshop and submit a copy of a valid workshop 
certificate with their permit application package if shark trip limits 
are set above 0 in future rulemaking. Additionally, NMFS is considering 
requiring CSBP holders to possess a valid NMFS Atlantic Shark 
Identification Workshop certificate (or a copy) at any point of shark 
sale. NMFS would conduct rulemaking to implement these requirements 
through the framework procedures at Sec.  635.34(b) at the time that 
the shark trip limits are adjusted.
    Landings data for vessels issued CSBPs would be collected through 
cooperation between NMFS and territorial government fisheries data 
collection programs, as specified by those programs. The individual 
territorial governments would be responsible for supplying these data 
to the NMFS Southeast Fisheries Science Center (SEFSC) and meeting 
requirements determined to be appropriate by NMFS.
    Under the preferred alternative, NMFS requests specific comment on 
an initial retention limit of 10 BAYS tunas, 2 swordfish, and 0 sharks 
per vessel per trip. These limits were identified due to comments 
received during NEPA scoping and public comment on the Amendment 4 Pre-
Draft. The trip limits fall within the ranges discussed above, and 
could be adjusted in the future through the framework procedures 
codified at Sec.  635.34(b).
    NMFS is proposing Alternative 3 because it accomplishes the 
objectives and best addresses public input. Additionally, this 
alternative provides an increased capability for fisheries data 
collection and flexibility to modify trip limits for BAYS, swordfish, 
and sharks as appropriate and necessary.

Request for Comments

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted at a 
public hearing (see Public Hearings and Special Accommodations below). 
NMFS solicits comments on this proposed rule by June 14, 2012 (see 
DATES and ADDRESSES).
    NMFS will announce the dates and locations of public hearings in a 
future Federal Register notice.

Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant 
Administrator has determined that the proposed rule is consistent with 
the 2006 Consolidated HMS FMP and its amendments, other provisions of 
the Magnuson-Stevens Act, ATCA, and other applicable law, subject to 
further consideration after public comment.
    NMFS prepared an environmental assessment (EA) for this rule that 
discusses the impact on the environment that would result from this 
rule. In this proposed action, NMFS is considering options to increase 
the participation of small-scale Caribbean fishing vessels within the 
HMS permitting and reporting regime in order to better collect catch 
and effort data and provide for sustainably managed fisheries. A copy 
of the EA is available from NMFS (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A summary of the analysis follows. A copy of 
this analysis is available from NMFS (see ADDRESSES).

Purpose and Objectives of the Action

    NMFS proposes this rule consistent with the requirements of the 
Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its 
amendments, to enact HMS management measures that better correspond 
with the traditional operation of the fishing fleet in the U.S. 
Caribbean Region and to provide NMFS with improved capability to 
monitor and sustainably manage those fisheries.
    Consistent with the 2006 Consolidated HMS FMP, the Magnuson-Stevens 
Act, and other relevant federal laws, this rule is intended to increase 
participation in the HMS Federal fishery management program in the U.S. 
Caribbean Region; expand regional HMS permit availability and increase 
permitting program awareness, participation, and compliance in the U.S. 
Caribbean Region; improve regional HMS catch and fishing effort data; 
examine and implement regionally tailored HMS management strategies, as 
appropriate; provide targeted training and outreach to HMS fishery 
participants; and improve NMFS' capability to monitor and sustainably 
manage U.S. Caribbean HMS fisheries.

Number of Small Entities Affected

    If implemented, this rule would affect owners of vessels fishing 
for and selling HMS in the U.S. Caribbean Region. Under the Regulatory 
Flexibility Act, 5 U.S.C. 603(b)(3), NMFS must estimate the number of 
small entities to which the rule would apply. The Small Business 
Administration, which implements the RFA, defines a small fishing 
entity as one that has average annual receipts less than $4.0 million; 
charter/headboats are small entities if they have average annual 
receipts of less than $6.5 million. Additionally, wholesale fish 
dealers with 100 or fewer employees are considered small entities, as 
are seafood processors with 500 or fewer employees.
    This proposed rule would apply to small-scale HMS handgear vessels 
that fish in the Caribbean Region. The current Caribbean HMS handgear 
fishery is comprised of fishermen who are currently required to hold an 
Atlantic General category or a HMS Charter/Headboat category permit and 
the related industries including processors, bait houses, and equipment 
suppliers. There may also be a few unknown entrants to the Caribbean 
small-scale HMS fishery; however, this number is expected to be low due 
to the isolated area, small vessels in the region, limited fishing 
area, and limited profit margins. In 2010, there were 92 vessels 
permitted in the Atlantic tunas General category in Puerto Rico and 10 
in the USVI; also, there were 23 vessels permitted in the Charter/
Headboat category in Puerto Rico and 21 in the USVI. NMFS anticipates 
that the universe of fishermen who might purchase and fish under a CSBP 
would likely be approximately 100 individuals in the U.S. Caribbean 
Region, with some potential shift of fishermen currently permitted in 
the HMS Angling and Charter/Headboat categories. All of these vessels 
are considered ``small entities'' under the RFA for the purposes of 
this analysis.
    This proposed rule does not contain any new reporting requirements, 
but would require fishermen to apply for a CSBP in a manner similar to 
the way NMFS currently requires permit holders to apply for open access 
HMS permits. Fishermen, dealers, and managers in these fisheries must 
comply with a number laws, including, but not limited to, the Magnuson-
Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing 
Compliance Act, the Marine Mammal Protection Act, the Endangered 
Species Act, the National Environmental Policy Act, the Paperwork 
Reduction Act, and the

[[Page 15705]]

Coastal Zone Management Act. However, NMFS does not believe that the 
proposed regulations would duplicate, overlap, or conflict with any 
relevant regulations, federal or otherwise.

Alternatives

    NMFS considered three alternatives to this proposed rule. All of 
the entities affected by this rule are small entities, so the rule 
would not impose disparate impacts on small and large entities. 
Therefore, the analysis of alternatives to reduce the impact on small 
entities under section 603(c) of the RFA are inapplicable. This 
proposed action would modify existing requirements that may affect 
small entities and would simplify reporting requirements and better 
account for the business practices of Caribbean fishermen. 
Specifically, this rule would allow Caribbean small-scale fishermen 
with the CSBP to directly sell their catches of authorized HMS without 
possessing a dealer permit, provided that the fishermen report the 
harvest and sale of these animals to their respective territorial 
governments, which will report these data to the NMFS SEFSC. Small 
entities may not be exempted from the proposed reporting requirements 
if the objectives of this proposed rule are to be met, consistent with 
legal obligations.
    NMFS considered and analyzed three alternatives to the preferred 
alternative (this proposed rule). These alternatives ranged from the 
no-action alternative, or maintaining the status quo, to creating a 
CSBP permit valid only in the Caribbean Region which could allow 
fishing for and sales of BAYS tunas, swordfish, and Atlantic sharks 
(excluding sandbar) under specific limitations. NMFS assessed the 
impacts of the alternatives, which are composed of seven key topics: 
permitting/workshop certification; authorized species; retention limit 
ranges; reporting; authorized gears; vessel size restrictions; and, 
regions. Instead of analyzing a range of alternatives under individual 
topics, the IRFA analyzes four alternatives that are composed of 
various suites of measures under the seven key topics.
    Alternative 1 would, among other things, maintain current Atlantic 
HMS vessel and dealer permits structure, current upgrading 
restrictions, current authorized species and gear structure, current 
retention limits, and, current observer and reporting requirements. 
Alternative 2 would create a CSBP allowing fishing for and sales of 
BAYS tunas and Atlantic swordfish under specific limitations. 
Alternative 3 would create a CSBP allowing fishing for and sales of 
BAYS tunas, Atlantic swordfish, and Atlantic sharks, under specific 
limitations. Alternative 3 differs from Alternative 2 in that it could 
also allow for the retention of Atlantic sharks. Alternative 4 would 
create a CSBP allowing fishing for and sales of BAYS tunas, Atlantic 
swordfish, and Atlantic sharks, under specific limitations. Alternative 
4 differs from Alternative 3 in that it could allow for higher 
retention limits of BAYS tunas, Atlantic swordfish, Atlantic sharks, 
and would not limit vessel size. Under alternatives 2-4, modifications 
to the initial proposed retention limits could be made using the 
adjustment procedures codified at Sec.  635.34(b).
    Under Alternative 1, NMFS does not anticipate any substantive 
change in economic impacts as the small-scale fishermen in the 
Caribbean Region are already operating under the current regulations. 
However, this alternative may be contributing to a loss of potential 
income by small-scale fishermen in the Caribbean Region, because these 
fishermen are limited in their ability to gain access to commercial 
limited access swordfish and shark fisheries due to the relatively high 
costs of obtaining permits considering the low volume of their catch 
and resulting profit. Additionally, the relative absence of a dealer 
structure in the U.S. Caribbean Region effectively restricts where 
fishermen may legally sell their catches, so they often sell to non-
dealers or become individual dealers themselves.
    Alternative 2 would allow small-scale fishermen in the Caribbean 
Region to fish for, retain, and sell BAYS tunas and swordfish. 
Retention limits for BAYS tunas could be set between 0 and 24 fish per 
trip. The upper end of this range is equal to the current maximum 
recreational retention limit of yellowfin tuna (YFT) for an HMS charter 
vessel with 6 paying passengers and 2 crew members onboard. NMFS 
considered setting the initial limit at 10 BAYS tunas per trip. The 
Caribbean small-scale commercial tunas fishery is small, the vessels 
are limited in range and hold capacity, and are currently allowed to 
harvest unlimited numbers of BAYS tunas if they possess an Atlantic 
tunas General category permit. Alternative 2 would also allow permit 
holders to retain and sell 0 to 6 swordfish per vessel per trip. This 
upper limit is equal to the current maximum swordfish retention limit 
for the open access HMS Charter/Headboat permit with 6 paying 
passengers onboard. NMFS considered setting the initial retention limit 
at 2 swordfish per trip. In summary, NMFS would have framework 
adjustment authority under Sec.  635.34(b) to modify BAYS tunas and 
swordfish limits in the future within the ranges identified above. 
Under Alternative 2, NMFS considered establishing an initial proposed 
limit of 10 BAYS tunas per trip, and an initial proposed retention 
limit of 2 swordfish per trip. Alternative 2 would limit the length of 
vessels eligible for the CSBP to 45 feet or less.
    NMFS anticipates Alternative 2 would result in positive economic 
impacts for affected fishermen. Alternative 2 would allow small-scale 
Caribbean fishermen (vessels limited to 45 feet LOA or less) to use 
specific handgear (including buoy gear) and greenstick gear to fish for 
and retain BAYS tunas, and specific handgear to fish for and retain 
swordfish. Allowing small-scale fishermen in the U.S. Caribbean Region 
to use their traditional free-floating ``yo-yo'' handlines (buoy gear) 
to target BAYS tunas has been requested for many years. Establishing a 
trip limit range of 0 to 24 BAYS tunas with an initial proposed limit 
of 10 BAYS tunas per trip is expected to produce positive economic 
impacts because 10 BAYS is reported to be a very successful trip for 
the small-scale fishermen (Lynn Rios, pers. comm.). According to NMFS' 
``Fisheries of the United States, 2010,'' YFT sells for approximately 
$1.75 per pound in Puerto Rico (this price likely includes lesser 
quality longline landings); however, according to information provided 
by the USVI DPNR, YFT and ``tunas'' harvested in the handline fishery 
may sell for up to $7.00 per pound depending on quality and local 
demand (NMFS, 2011c).
    Using ICCAT conversions for YFT, a fish meeting the current U.S. 
minimum size (27 inches Curved Fork Length (CFL)) weighs approximately 
14 lb. Therefore, if each fisherman conducted two BAYS tunas trips per 
month (24 trips/yr.), and landed 10 YFT on each trip (240 YFT/yr.), 
then the annual revenue per vessel associated with this activity would 
range from $5,880.00 (240 YFT x 14 lb x $1.75/lb) - $23,520.00 (240 YFT 
x 14 lb x $7.00/lb). These estimates are based upon the initial 
retention limit of 10 BAYS tunas that NMFS considered under Alternative 
2. Because NMFS would have authority to adjust the BAYS tunas retention 
limits from 0 to 24 fish under Alternative 2, the annual ex-vessel 
revenue estimates could vary from $0.00 (under a 0 fish limit) to as 
much as $14,112 (576 YFT x 14 lb x $1.75/lb) - $56,448 (576 YFT x 14 lb 
x $7.00/lb) under a 24 fish retention limit if the BAYS retention limit 
were to change. Also, it is important to reemphasize that

[[Page 15706]]

a 10-fish trip is considered very successful and the likelihood that it 
would occur on multiple trips over an entire year is unknown. The 
small-scale commercial HMS fishery in the region consists primarily of 
small vessels that are limited by hold capacity, crew size, trip 
length, fishing gears, and market infrastructure. Improvements in data 
collection anticipated through this action will enable NMFS to better 
characterize the fishery and adjust management measures in the future.
    The ability to legally land and sell swordfish from federal waters 
under Alternative 2 could increase the profitability of the local 
handgear fishery. Swordfish is currently selling for approximately 
$4.00 to $6.00 per pound in the Caribbean Region (Lynn Rios, pers. 
comm.). Analyzing a trip limit range of 0 to 6 for swordfish per trip, 
and setting an initial proposed retention limit of 2 swordfish per trip 
would likely result in positive economic impacts for those fishermen 
able to target and store 1 or 2 swordfish on their vessels.
    Using ICCAT conversions for swordfish, a fish meeting the current 
U.S. minimum size (47 inches Lower Jaw Fork Length (LJFJ)) weighs 
approximately 44 lb. Therefore, if each fisherman conducted two 
swordfish trips per month (24 trips/yr.), and landed 2 swordfish on 
each trip (24 swordfish/yr.), then the annual revenue per vessel 
associated with this activity would range from $4224.00 (24 swordfish x 
44 lb x $4.00/lb) - $6,336.00 (24 swordfish x 44 lb x $6.00/lb). These 
estimates are based upon the initial proposed retention limit of 2 
swordfish that NMFS considered under Alternative 2. Because NMFS would 
have authority to adjust the swordfish retention limit under this 
alternative from 0 to 6 fish using the framework procedures codified at 
50 CFR 635.34(b), the annual ex-vessel revenue estimates could vary 
from $0.00 (under a 0 fish limit) to as much as $25,344 (144 swordfish 
x 44 lb x $4.00/lb) - $38,016 (144 swordfish x 44 lb x $6.00/lb) under 
a 6-fish limit if the swordfish limit were to change. Also, a 2-fish 
trip is considered very successful and the likelihood that it would 
occur on multiple trips over an entire year is unknown. The small-scale 
commercial HMS fishery in the region consists primarily of small 
vessels that are limited by hold capacity, crew size, trip length, 
fishing gears, and market infrastructure. Improvements in data 
collection anticipated through this action will enable NMFS to better 
characterize the fishery and adjust management measures in the future.
    Alternative 2 does not contain any new reporting requirements, but 
would require fishermen to apply for a CSBP in a manner similar to the 
way HMS permit holders apply for their current HMS permits, if they 
currently hold one. The relative absence of a dealer structure in the 
U.S. Caribbean Region restricts where fishermen may legally sell their 
catches, so they often sell catches to non-dealers or become individual 
dealers themselves. This alternative would simplify reporting 
requirements and better account for the business practices of small-
scale Caribbean fishermen by allowing Caribbean fishermen with the CSBP 
to directly sell their catches of authorized HMS without possessing a 
dealer permit, provided that the fishermen report the harvest and sale 
of these animals to their respective territorial governments, which 
will report these data to the NMFS Southeast Fisheries Science Center 
(SEFSC).
    Alternative 3, the preferred alternative proposed here, would allow 
Caribbean small-scale fishermen to retain and sell from 0 and 24 BAYS 
tunas and from 0-6 swordfish, which are the same ranges as discussed in 
Alternative 2. These retention limits could be adjusted using the 
framework procedures at Sec.  635.34(b). Under Alternative 3, NMFS 
considered establishing an initial proposed limit of 10 BAYS tunas per 
trip, and an initial proposed retention limit of 2 swordfish per trip 
which are the same as Alternative 2. This suite could also allow for 
Caribbean small-scale fishermen to affordably participate in the 
commercial fishery for sharks. Under this alternative, shark retention 
limits could be set between 0 to 3 non-sandbar LCS and 0 to 16 SCS and 
pelagic sharks combined using the framework adjustment procedures at 
Sec.  635.34(b). To be conservative, NMFS considered setting the 
initial shark trip limit at 0, with the ability to modify the limits 
using the framework adjustment procedures at Sec.  635.34(b). 
Alternative 3 would limit the length of vessels eligible for the CSBP 
to 45 feet LOA or less.
    With regard to BAYS tunas and swordfish, the initial proposed 
retention limits in Alternative 3 (10 BAYS & 2 swordfish) would have 
the same positive economic impacts as Alternative 2 discussed above 
(BAYS: $5,880.00-$23,520.00; swordfish: $4224.00-$6,336.00). Similarly, 
because NMFS would have authority to adjust the BAYS tunas retention 
limits from 0 to 24 fish under Alternative 3, the annual ex-vessel 
revenue estimates could vary from $0.00 (under a 0 fish limit) to as 
much as $14,112 (576 YFT x 14 lb x $1.75/lb) - $56,448 (576 YFT x 14 lb 
x $7.00/lb) under a 24 fish retention limit if the BAYS limit were to 
change. Also, because NMFS would have authority to adjust the swordfish 
retention limit under this alternative from 0 to 6 fish using the 
framework procedures codified at Sec.  635.34(b), the annual ex-vessel 
revenue estimates could vary from $0.00 (under a 0 fish limit) to as 
much as $25,344 (144 swordfish x 44 lb x $4.00/lb) - $38,016 (144 
swordfish x 44 lb x $6.00/lb) under a 6-fish limit if the swordfish 
limit were to change.
    The potential ability for small-scale Caribbean fishermen to 
participate in the federal commercial shark fishery under this 
alternative by analyzing a retention limit range of 0 to 3 non-sandbar 
LCS and 0 to 16 SCS and pelagic sharks combined would produce larger 
potential positive economic impacts than Alternatives 1 and 2. 
According to NMFS' ``Fisheries of the United States, 2010,'' ``shark'' 
sells for approximately $1.57 per pound in Puerto Rico (this price 
likely includes lesser quality longline landings); however according to 
information provided by the USVI Department of Planning and Natural 
Resources (DPNR), ``shark'' harvested in the handline fishery may sell 
for up to $4.00 per pound depending on quality and demand (NMFS, 
2011c).
    NMFS considered setting the initial proposed shark retention limit 
at 0 under Alternative 3; this would produce $0.00 in ex-vessel 
revenues. There is a potential for future revenue increases under this 
alternative because NMFS would have the ability to modify the limits 
once the shark complexes have recovered and the Agency has more data on 
regional participants, catches, and discards in the CSBP fishery. The 
range of shark limits in Alternative 3 have the potential to provide 
increased revenues for fishermen who catch sharks and who have or can 
create a market for them in the U.S. Caribbean Region.
    Using information from the Northeast Fisheries Science Center 
(Kohler et al., 1996), the average weight of a Caribbean non-sandbar 
LCS (i.e., tiger, blacktip, lemon, nurse, great hammerhead) fish is 
approximately 95 lb (ww), and the average weight of a Caribbean pelagic 
shark (i.e., common thresher, oceanic whitetip, blue) is approximately 
150 lb (whole weight (ww)). For Caribbean SCS, a weight of 10 lb (ww) 
is assumed. Therefore, if each fisherman conducted two shark trips per 
month (24 trips/yr.), and landed 3 non-sandbar LCS and 16 SCS on each 
trip (72 LCS/yr. & 384 SCS), then the annual revenue per vessel 
associated with this activity would range from $16,768.00 (72 LCS x

[[Page 15707]]

 95 lb x $1.57/lb + 384 SCS x 10 lb x $1.57/lb) -$42,720.00 (72 LCS x 
95 lb x $4.00/lb + 384 SCS x 10 lb x $4.00/lb). These estimates are 
based upon the upper catch limit of 3 non-sandbar LCS and 16 SCS or 
pelagic sharks (combined) that NMFS could consider under Alternative 3. 
These estimates of annual revenues would be higher if more pelagic 
sharks were landed, due to their larger average size. The likelihood 
that the limits would be reached on multiple trips over an entire year 
is unknown. The small-scale HMS fishery in the region consists 
primarily of small vessels that are limited by hold capacity, crew 
size, trip length, fishing gears, and market infrastructure. 
Improvements in data collection anticipated through this action will 
enable NMFS to better characterize the fishery and adjust management 
measures in the future.
    Alternative 3 does not contain any new reporting requirements, but 
would require fishermen to apply for a CSBP in a manner similar to the 
way NMFS currently requires permit holders to apply for open access HMS 
permits. The relative absence of a dealer structure in the U.S. 
Caribbean Region restricts where fishermen may legally sell their 
catches, and thus they sell them to non-permitted dealers or become 
individual dealers themselves. This alternative would simplify 
reporting requirements and better account for the business practices of 
Caribbean fishermen by allowing small-scale fishermen with the CSBP to 
directly sell their catches of authorized HMS without possessing a 
dealer permit, provided that the fishermen report the harvest and sale 
of these animals to their respective territorial governments, which 
will report these data to the SEFSC.
    Alternative 4 would establish a range that could allow Caribbean 
small-scale fishermen to retain and sell from between 0 to an unlimited 
number of BAYS tunas, with an initial proposed retention limit of 24 
BAYS tunas per trip. This could potentially increase the number of BAYS 
tunas harvested in the region. Alternative 4 would also establish a 
range that could allow permit holders to retain and sell from 0 to an 
unlimited number of swordfish per vessel per trip, with an initial 
proposed retention limit of 6 swordfish per trip. This alternative 
could potentially increase the number of swordfish harvested in the 
region. With regard to sharks, Alternative 4 could allow Caribbean 
small-scale fishermen to participate in the federal commercial fishery 
for sharks. Shark retention limits could be set between 0 to 33 non-
sandbar LCS, and from 0 to no limit for SCS and pelagic sharks 
combined. In summary, NMFS would have the ability to modify BAYS tunas, 
swordfish, and shark trip limits within the identified ranges using the 
framework adjustment procedures at Sec.  635.34(b).
    Under Alternative 4, NMFS considered setting an initial proposed 
limit of 24 BAYS tunas per trip; an initial proposed retention limit of 
6 swordfish per trip; and initial retention limits of 1 non-sandbar LCS 
and 2 SCS or pelagic sharks combined, with the ability to modify these 
retention limits using the framework adjustment procedures codified at 
Sec.  635.34(b). Alternative 4 would not limit the size of vessel 
allowed to be issued a CSBP. During NEPA scoping and through public 
comment on the Predraft, NMFS received comment from fishermen concerned 
about over capitalization leading to depressed market prices. 
Alternatives 2 and 3 would limit vessel size to 45 feet LOA or less.
    Alternative 4 could potentially have the largest positive economic 
impacts when compared with Alternatives 1, 2, and 3 discussed above; 
however, it could also result in local overcapitalization in the 
fishery, lead to depressed market prices, and other potential adverse 
economic impacts. It could increase the number of BAYS tunas harvested 
in the region, and the range would mirror the trip limits currently 
authorized for the open access Atlantic tunas General category permit. 
As discussed under Alternative 2, a trip where 10 BAYS tunas are 
harvested in the Caribbean small-scale HMS fishery is considered a very 
successful day, this alternative could increase the number of BAYS 
allowed to be harvested to an unlimited amount. This increased 
retention limit may result in additional positive economic impacts; 
however, it is not known if the Caribbean small-scale commercial fleet 
has the ability to hold and market this amount of tunas.
    Using ICCAT conversions for YFT, a fish meeting the current U.S. 
minimum size (27 inches CFL) weighs approximately 14 lb. Therefore, if 
each fisherman conducted two BAYS tunas trips per month (24 trips/yr.), 
and landed 24 YFT on each trip (576 YFT/yr.), then the annual revenue 
per vessel associated with this activity would range from $14,112.00 
(576 YFT x 14 lb x $1.75/lb) -$56,448.00 (576 YFT x 14 lb x $7.00/lb). 
These estimates are based upon the initial proposed retention limit of 
24 BAYS tunas that NMFS considered under Alternative 4. Because NMFS 
would have the ability to adjust the BAYS tunas retention limit from 0 
to an unlimited amount under Alternative 4, the annual ex-vessel 
revenue estimates would vary from either $0.00 to an unlimited amount 
if the BAYS retention limit were to change from the initial proposed 
limit of 24 BAYS/trip. Also, it is important to reemphasize that a 10-
fish trip is considered very successful, and the likelihood that a 24 
fish trip would occur on multiple trips over an entire year is unknown. 
The small-scale HMS fishery in the region consists primarily of small 
vessels that are limited by hold capacity, crew size, trip length, 
fishing gears, and market infrastructure. Improvements in data 
collection anticipated through this action will enable NMFS to better 
characterize the fishery and adjust management measures in the future.
    The unlimited upper end of the range being considered for swordfish 
in Alternative 4 would be equal to the current limited access swordfish 
directed permit retention limit. NMFS has received anecdotal 
information that swordfish are being harvested by handgear fishermen in 
the Caribbean Region. Alternative 4 would provide small-scale fishermen 
in the Caribbean Region with access to the federal commercial swordfish 
fishery and the ability to legally market their catches. Currently, 
entrance to the federal limited access commercial swordfish fishery has 
been difficult for small-scale fishermen as permits are cost 
prohibitive. However, as stated above, the vessels participating in the 
Caribbean small-scale commercial fishery are small, limited in range, 
and limited in hold capacity. It is not known if these small vessels 
can hold and safely transport an unlimited amount of swordfish to port.
    Using ICCAT conversions for swordfish, a fish meeting the current 
U.S. minimum size (47 inches LJFL) weighs approximately 44 lb. 
Therefore, if each fisherman conducted two swordfish trips per month 
(24 trips/yr.), and landed 6 swordfish on each trip (144 swordfish/
yr.), then the annual revenue per vessel associated with this activity 
would range from $25,344.00 (144 swordfish x 44 lb x $4.00/lb) - 
$38,016.00 (144 swordfish x 44 lb x $6.00/lb). These estimates are 
based upon the initial retention limit of 6 swordfish that NMFS 
considered under Alternative 4. Because NMFS would have framework 
authority to adjust the swordfish retention limit from 0 to an 
unlimited amount under Alternative 4, the annual ex-vessel revenue 
estimates would vary from $0.00 to an unlimited amount if the swordfish 
limit were to change from 6 per trip. Also, a 2-fish trip is considered 
very successful within the region and the likelihood that a 6-

[[Page 15708]]

fish trip would occur on multiple trips over an entire year is unknown. 
The small-scale HMS fishery in the region consists primarily of small 
vessels that are limited by hold capacity, crew size, trip length, 
fishing gears, and market infrastructure. Improvements in data 
collection anticipated through this action will enable NMFS to better 
characterize the fishery and adjust management measures in the future.
    The shark retention limits in the range for Alternative 4 have the 
potential to provide increased revenues for fishermen who catch sharks 
and who have or can create a market for them in the U.S. Caribbean 
Region.
    Using information from the Northeast Fisheries Science Center 
(Kohler et al., 1996), the average weight of a Caribbean non-sandbar 
LCS (i.e., tiger, blacktip, lemon, nurse, great hammerhead) fish is 
approximately 95 lb (whole weight (ww)), and the average weight of a 
Caribbean pelagic shark (i.e., common thresher, oceanic whitetip, blue) 
is approximately 150 lb (ww). For Caribbean SCS, a weight of 10 lb (ww) 
is assumed. Therefore, if each fisherman conducted two shark trips per 
month (24 trips/yr.), and landed 1 non-sandbar LCS and 2 SCS on each 
trip (24 LCS/yr. & 48 SCS), then the annual revenue per vessel 
associated with this activity would range from $4,296.00 (24 LCS x 95 
lb x $1.57/lb + 48 SCS x 10 lb x $1.57/lb) - $11,040.00 (24 LCS x 95 lb 
x $4.00/lb + 48 SCS x 10 lb x $4.00/lb). These estimates are based upon 
the initial retention limit of 1 non-sandbar LCS and 2 SCS or pelagic 
sharks (combined) that NMFS considered in Alternative 4. These 
estimates of annual revenues would be higher if more pelagic sharks 
were landed due to their larger average size. Because NMFS would have 
framework authority to adjust the retention limits from 0 to 33 non-
sandbar LCS and from 0 to an unlimited amount of SCS or pelagic sharks 
(combined) under Alternative 4, the annual ex-vessel revenue estimates 
would vary from $0.00 to an unlimited amount if the retention limits 
were to change. The likelihood that the retention limits would be 
reached on multiple trips over an entire year is unknown. The small-
scale HMS fishery in the region consists primarily of small vessels 
that are limited by hold capacity, crew size, trip length, fishing 
gears, and market infrastructure. Improvements in data collection 
anticipated through this action will enable NMFS to better characterize 
the fishery and adjust management measures in the future.
    Alternative 4 would not limit the size of vessel allowed to be 
issued a CSBP. During NEPA scoping and through public comment on the 
Predraft, the Agency received comments from fishermen concerned about 
over capitalization leading to depressed market prices. Alternatives 2 
and 3 limit vessel size to 45 feet or less. Alternative 4 does not 
identify a vessel size limit and could result in local 
overcapitalization in the fishery, lead to depressed market prices, and 
other potential adverse economic impacts.
    Alternative 4 does not contain any new reporting requirements, but 
would require fishermen to apply for a CSBP in a manner similar to the 
way HMS permit holders apply for their current HMS permits, if they 
currently hold one. The relative absence of a dealer structure in the 
U.S. Caribbean Region restricts where fishermen may legally sell their 
catches, so they often sell to non-dealers or become individual dealers 
themselves. This alternative would simplify reporting requirements and 
better account for the business practices of Caribbean fishermen by 
allowing small-scale fishermen with the CSBP to directly sell their 
catches of authorized HMS without possessing a dealer permit, provided 
that the fishermen report the harvest and sale of these animals to 
their respective territorial governments, which will report these data 
to the SEFSC.

List of Subjects

50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: March 13, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 600 and 635 
as amended at 76 FR 37750, June 28, 2011, are proposed to be amended as 
follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

    Authority:  5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

    2. In Sec.  600.725, paragraph (v), under the heading ``IX. 
Secretary of Commerce,'' entry 1, add N to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

------------------------------------------------------------------------
                Fishery                       Authorized gear types
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                        IX. Secretary of Commerce
------------------------------------------------------------------------
1. Atlantic Highly Migratory Species
 Fisheries (FMP):.
 
                              * * * * * * *
N. Caribbean Small Boat Commercial       N. Rod and reel, handline,
 Fishery.                                 harpoon, bandit gear, green-
                                          stick gear, buoy gear.
------------------------------------------------------------------------

* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. 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.

    4. In Sec.  635.4,
    a. Revise paragraphs (a)(5), (a)(10), (d)(1), (d)(2), (d)(3), 
(e)(1), (e)(2), (f)(1),

[[Page 15709]]

(f)(2), (g)(1)(ii), (g)(2), (g)(3), (h)(1) introductory text, (m)(1), 
and (m)(2); and
    b. Add paragraph (o) to read as follows:


Sec.  635.4  Permits and fees.

    (a) * * *
    (5) Display upon offloading. Upon offloading of Atlantic HMS, the 
owner or operator of the harvesting vessel must present for inspection 
the vessel's HMS Charter/Headboat permit; Atlantic tunas, shark, or 
swordfish permit; Incidental HMS squid trawl; HMS Caribbean Small Boat 
Commercial permit; and/or the shark research permit to the first 
receiver. The permit(s) must be presented prior to completing any 
applicable landing report specified at Sec.  635.5(a)(1), (a)(2), and 
(b)(2)(i).
* * * * *
    (10) Permit condition. An owner of a vessel with a valid swordfish, 
shark, HMS Angling, HMS Charter/Headboat, Incidental HMS squid trawl, 
or HMS Caribbean Small Boat Commercial 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.
* * * * *
    (d) Atlantic Tunas vessel permits. (1) The owner of each vessel 
used to fish for or take Atlantic tunas commercially or on which 
Atlantic tunas are retained or possessed with the intention of sale 
must obtain an HMS Charter/Headboat permit issued under paragraph (b) 
of this section, an HMS Caribbean Small Boat Commercial permit issued 
under paragraph (o) of this section, or an Atlantic tunas permit in 
one, and only one, of the following categories: General, Harpoon, 
Longline, Purse Seine, or Trap.
    (2) Persons aboard a vessel with a valid Atlantic Tunas, HMS 
Angling, HMS Charter/Headboat, or an HMS Caribbean Small Boat 
Commercial permit may fish for, take, retain, or possess Atlantic 
tunas, but only in compliance with the quotas, catch limits, size 
classes, and gear applicable to the permit or permit category of the 
vessel from which he or she is fishing. Persons may sell Atlantic tunas 
only if the harvesting vessel has a valid permit in the General, 
Harpoon, Longline, Purse Seine, or Trap category of the Atlantic Tunas 
permit or a valid HMS Charter/Headboat or an HMS Caribbean Small Boat 
Commercial permit.
    (3) A vessel issued an Atlantic Tunas permit in any category for a 
fishing year shall not be issued an HMS Angling permit, HMS Charter/
Headboat permit, or an Atlantic Tunas permit in any other category for 
that same fishing year, regardless of a change in the vessel's 
ownership. The owner of a vessel applying for an HMS Caribbean Small 
Boat Commercial permit as issued pursuant to paragraph (o) of this 
section is exempt from the requirements of this paragraph but is 
subject to restrictions set forth at Sec.  635.4 (o)(3) and may not 
hold any other HMS fishing permit simultaneously.
* * * * *
    (e) * * * (1) The owner of each vessel used to fish for or take 
Atlantic sharks or on which Atlantic sharks are retained, possessed 
with an intention to sell, or sold must obtain, in addition to any 
other required permits, at least one of the Federal Atlantic commercial 
shark permits described below or an HMS Caribbean Small Boat Commercial 
permit as issued pursuant to paragraph (o) of this section. A Federal 
Atlantic commercial shark permit or HMS Caribbean Small Boat Commercial 
permit is not required if the vessel is recreationally fishing and 
retains no more sharks than the recreational retention limit specified 
in Sec.  635.22(c), is operating pursuant to the conditions of a shark 
display or EFP issued pursuant to Sec.  635.32, or fishes exclusively 
within State waters. It is a rebuttable presumption that the owner or 
operator of a vessel without a permit issued pursuant to this part on 
which sharks are possessed in excess of the recreational retention 
limits intends to sell the sharks.
    (2) The owner of vessels that fish for, take, retain, or possess 
the Atlantic oceanic sharks listed in sections A, B, or C of Table 1 of 
Appendix A with an intention to sell must obtain a Federal Atlantic 
commercial shark directed or incidental limited access permit or an HMS 
Caribbean Small Boat Commercial permit issued pursuant to paragraph (o) 
of this section. The only valid Federal commercial shark directed and 
shark incidental limited access permits are those that have been issued 
under the limited access program consistent with the provisions under 
paragraphs (l) and (m) of this section.
* * * * *
    (f) * * * (1) Except as specified in paragraphs (n) and (o) 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 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 paragraphs (n) and (o) of this section.
* * * * *
    (g) * * *
    (1) * * *
    (ii) A first receiver, as defined in Sec.  635.2, of Atlantic 
bigeye, albacore, yellowfin, or skipjack tunas must possess a valid 
Federal Atlantic tunas dealer permit except as noted under paragraph 
(o) of this section.
    (2) Shark. A first receiver, as defined in Sec.  635.2, of any 
Atlantic shark listed in Table 1 of Appendix A of this part must 
possess a valid dealer permit except as noted under paragraph (o) of 
this section.
    (3) Swordfish. A first receiver, as defined in Sec.  635.2, of 
Atlantic swordfish must possess a valid Federal Atlantic swordfish 
dealer permit except as noted under paragraph (o) of this section.
* * * * *
    (h) * * *
    (1) Atlantic Tunas, HMS Angling, HMS Charter/Headboat, Incidental 
HMS squid trawl, and HMS Caribbean Small Boat Commercial vessel 
permits.
* * * * *
    (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, Incidental 
HMS squid trawl, or HMS Caribbean Small Boat Commercial vessel permit. 
Except as specified in the instructions for automated renewals, persons 
must submit a renewal application to NMFS, along with a copy of the 
applicable valid workshop certificate or certificates, if required 
pursuant to Sec.  635.8, at an address designated by

[[Page 15710]]

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 Sec.  635.5 and Sec.  300.185 of this title; the 
applicant is not subject to a permit sanction or denial under paragraph 
(a)(6) of this section; and the workshop requirements specified in 
Sec.  635.8 are met.
    (2) Shark and swordfish LAPs. The owner of a vessel of the U.S. 
that fishes for, possesses, lands or sells shark or swordfish from the 
management unit, or that takes or possesses such shark or swordfish as 
incidental catch, must have the applicable limited access permit(s) 
issued pursuant to the requirements in paragraphs (e) and (f) of this 
section, except as specified in paragraphs (n) and (o) 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.
* * * * *
    (o) HMS Caribbean Small Boat Commercial permits. (1) The owner of a 
vessel who fishes in the U.S. Caribbean, as defined at Sec.  622.2 of 
this chapter, possesses handgear or green-stick gear and retains, with 
the intention to sell, any BAYS tunas, Atlantic swordfish, or Atlantic 
sharks may obtain an HMS Caribbean Small Boat Commercial permit. An HMS 
Caribbean Small Boat Commercial permit is valid only within the U.S. 
Caribbean, as defined at Sec.  622.2 of this chapter.
    (2) To be eligible for an HMS Caribbean Small Boat Commercial 
permit, vessel owners must provide documentation that the vessels is 
less than or equal to 13.7 m (45 ft) in length overall (LOA).
    (3) A vessel issued an HMS Caribbean Small Boat Commercial permit 
may not be issued any other HMS fishing permit, except those issued 
under Sec.  635.32, as long as a valid HMS Caribbean Small Boat 
Commercial permit is issued to that vessel.
    (4) The owner of a vessel issued an HMS Caribbean Small Boat 
Commercial permit may fish for, take, retain, or possess only BAYS 
tunas, Atlantic swordfish, and Atlantic sharks, subject to the trip 
limits specified at Sec.  635.24 and may possess unauthorized gears 
onboard as stated at Sec.  635.21(b).
    (5) HMS landed under an HMS Caribbean Small Boat Commercial permit 
may be sold by the owner or operator to individuals who do not possess 
the HMS dealer permits required under Sec.  635.4(g). HMS Caribbean 
Small Boat Commercial permit holders are not considered to be dealers 
as defined at Sec.  600.10 of this chapter because HMS Caribbean Small 
Boat Commercial permit holders may not purchase, barter, or trade for 
HMS harvested by other vessels with the intent to sell such landings.
    5. In Sec.  635.21, revise paragraphs (b), (e)(1) introductory 
text, (e)(3)(i), (e)(4)(iii), and (e)(4)(iv) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (b) General. No person may fish for, catch, possess, or retain any 
Atlantic HMS with gears other than the primary gears specifically 
authorized in this part. Consistent with paragraphs (a)(1) and (a)(2) 
of this section, secondary gears may be used at boat side to aid and 
assist in subduing, or bringing on board a vessel, Atlantic HMS that 
have first been caught or captured using primary gears. For purposes of 
this part, secondary gears include, but are not limited to, dart 
harpoons, gaffs, flying gaffs, tail ropes, etc. Secondary gears may not 
be used to capture, or attempt to capture, free-swimming or undersized 
HMS. Except for vessels permitted under Sec.  635.4(o) or as specified 
in this paragraph (b), a vessel using or having onboard in the Atlantic 
Ocean any unauthorized gear may not possess an Atlantic HMS on board.
* * * * *
    (e) * * * (1) Atlantic tunas. A person that fishes for, retains, or 
possesses an Atlantic bluefin tuna may not have on board a vessel or 
use on board a vessel any primary gear other than those authorized for 
the category for which the Atlantic tunas or HMS permit has been issued 
for such vessel. Primary gears are the gears specifically authorized in 
this section. When fishing for Atlantic tunas other than BFT, primary 
gear authorized for any Atlantic Tunas permit category may be used, 
except that purse seine gear may be used only on board vessels 
permitted in the Purse Seine category and pelagic longline gear may be 
used only on board vessels issued an Atlantic Tunas Longline category 
tuna permit, a LAP other than handgear for swordfish, and a LAP for 
sharks. A person issued an HMS Caribbean Small Boat Commercial permit 
who fishes for, retains, or possesses BAYS tunas in the U.S. Caribbean, 
as defined at Sec.  622.2, may have on board and use handline, harpoon, 
rod and reel, bandit gear, green-stick gear, and buoy gear.
* * * * *
    (3) * * * (i) No person may possess a shark in the EEZ taken from 
its management unit without a permit issued under Sec.  635.4. No 
person issued a Federal Atlantic commercial shark permit under Sec.  
635.4 may possess a shark taken by any gear other than rod and reel, 
handline, bandit gear, longline, or gillnet; except that individuals 
issued an HMS Caribbean Small Boat Commercial permit may only harvest 
sharks with rod and reel, handline, and bandit gear in the U.S. 
Caribbean, as defined at Sec.  622.2. No person issued an HMS Angling 
permit or an HMS Charter/headboat permit under Sec.  635.4 may possess 
a shark if the shark was taken from its management unit by any gear 
other than rod and reel or handline, except that persons on a vessel 
issued both an HMS Charter/Headboat permit and a Federal Atlantic 
commercial shark permit may possess sharks taken with rod and reel, 
handline, bandit gear, longline, or gillnet if the vessel is not 
engaged in a for-hire fishing trip.
* * * * *
    (4) * * *
    (iii) A person aboard a vessel issued or required to be issued a 
valid directed handgear LAP for Atlantic swordfish or an HMS Caribbean 
Small Boat Commercial permit may not fish for swordfish with any gear 
other than handgear. A swordfish will be deemed to have been harvested 
by longline when the fish is on board or offloaded from a vessel using 
or having on board longline gear. Only vessels that have been issued, 
or that are required to have been issued, a valid directed or handgear 
swordfish LAP or an HMS Caribbean Small Boat Commercial permit under 
this part may utilize or possess buoy gear. Vessels utilizing buoy gear 
may not possess or deploy more than 35 floatation devices, and may not 
deploy more than 35 individual buoy gears per vessel. Buoy gear must be 
constructed and deployed so that the hooks and/or gangions are attached 
to the vertical portion of the mainline. Floatation devices may be 
attached to one but not both ends of the mainline, and no hooks or 
gangions may be attached to any floatation device or horizontal portion 
of the mainline. If more than one floatation device is attached to a 
buoy gear, no hook or gangion may be attached to the mainline between 
them. Individual buoy gears may not be linked, clipped, or connected 
together in any way. Buoy

[[Page 15711]]

gears must be released and retrieved by hand. All deployed buoy gear 
must have some type of monitoring equipment affixed to it including, 
but not limited to, radar reflectors, beeper devices, lights, or 
reflective tape. If only reflective tape is affixed, the vessel 
deploying the buoy gear must possess on board an operable spotlight 
capable of illuminating deployed floatation devices. If a gear 
monitoring device is positively buoyant, and rigged to be attached to a 
fishing gear, it is included in the 35 floatation device vessel limit 
and must be marked appropriately.
    (iv) Except for persons aboard a vessel that has been issued a 
limited access North Atlantic swordfish permit, Incidental HMS squid 
trawl permit, or an HMS Caribbean Small Boat Commercial permit under 
Sec.  635.4, no person may fish for North Atlantic swordfish with, or 
possess a North Atlantic swordfish taken by, any gear other than 
handline or rod and reel.
    6. In Sec.  635.24, revise the section heading and add paragraphs 
(a)(4)(iv), (b)(3), and (c) to read as follows:


Sec.  635.24  Commercial retention limits for sharks, swordfish and 
BAYS tunas.

    (a) * * *
    (4) * * *
    (iv) A person who owns or operates a vessel that has been issued an 
HMS Caribbean Small Boat Commercial permit may retain, possess, or land 
any LCS, SCS or pelagic sharks only when the trip limit is set above 
zero. The current shark trip limit for HMS Caribbean Small Boat 
Commercial permit holders is set at zero.
* * * * *
    (b) * * *
    (3) Persons aboard a vessel that has been issued an HMS Caribbean 
Small Boat Commercial vessel permit may retain, possess, land, or sell 
no more than 2 swordfish per trip in or from the Atlantic Ocean north 
of 5[deg] N. lat.
    (c) BAYS tunas. Persons aboard a vessel that has been issued an HMS 
Caribbean Small Boat Commercial permit under Sec.  635.4 may retain, 
possess, land, or sell no more than 10 BAYS tunas per trip.
    7. In Sec.  635.27, revise paragraph (c)(1)(i)(A) to read as 
follows:


Sec.  635.27  Quotas.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (A) A swordfish from the North Atlantic stock caught prior to the 
directed fishery closure by a vessel for which a directed fishery 
permit, a handgear permit for swordfish, or an HMS Caribbean Small Boat 
Commercial permit has been issued or is required to be issued is 
counted against the directed fishery quota. The annual fishery quota, 
not adjusted for over- or underharvests, is 2,937.6 mt dw for each 
fishing year. After December 31, 2007, the annual quota is subdivided 
into two equal semi-annual quotas of 1,468.8 mt dw: one for January 1 
through June 30, and the other for July 1 through December 31.
* * * * *
    8. In Sec.  635.31, revise paragraphs (a)(1)(i), (a)(2)(ii), and 
(d)(1) to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) * * *
    (i) A person that owns or operates a vessel from which an Atlantic 
tuna is landed or offloaded may sell such Atlantic tuna only if that 
vessel has a valid HMS Charter/Headboat permit; a valid General, 
Harpoon, Longline, Purse Seine, or Trap category permit for Atlantic 
tunas; or a valid HMS Caribbean Small Boat Commercial permit issued 
under this part. However, no person may sell a BFT smaller than the 
large medium size class. Also, no large medium or giant BFT taken by a 
person aboard a vessel with an Atlantic HMS Charter/Headboat permit 
fishing in the Gulf of Mexico at any time, or fishing outside the Gulf 
of Mexico when the fishery under the General category has been closed, 
may be sold (see Sec.  635.23(c)). A person may sell Atlantic bluefin 
tuna only to a dealer that has a valid permit for purchasing Atlantic 
bluefin tuna issued under this part. A person may not sell or purchase 
Atlantic tunas harvested with speargun fishing gear.
* * * * *
    (2) * * *
    (ii) Dealers may first receive Atlantic bigeye, albacore, yellowfin 
and skipjack tunas only if they have submitted reports to NMFS 
according to reporting requirements of paragraphs Sec.  635.5(b)(1)(ii) 
and only from a vessel that has a valid Federal commercial permit for 
Atlantic tunas issued under this part in the appropriate category. 
Individuals issued a valid HMS Caribbean Small Boat Commercial permit, 
and operating in the U.S. Caribbean as defined at Sec.  622.2, may sell 
their trip limits of BAYS tunas, codified at Sec.  635.24(c), to 
dealers and non-dealers.
* * * * *
    (d) * * * (1) Persons that own or operate a vessel on which a 
swordfish in or from the Atlantic Ocean is possessed may sell such 
swordfish only if the vessel has a valid commercial permit for 
swordfish issued under this part. Persons may offload such swordfish 
only to a dealer who has a valid permit for swordfish issued under this 
part; except that individuals issued a valid HMS Caribbean Small Boat 
Commercial permit, and operating in the U.S. Caribbean as defined at 
Sec.  622.2, may sell swordfish trip limits, codified at Sec.  
635.24(b)(3), to non-dealers.
* * * * *
    9. In Sec.  635.71, revise paragraphs (a)(3)(iii), (a)(4)(ii), 
(a)(53), (a)(55), (e)(1), (e)(10), (e)(11), (e)(16) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (3) * * *
    (iii) First receive, or attempt to first receive, Atlantic bigeye, 
albacore, yellowfin, and skipjack tunas, swordfish, or sharks without 
the appropriate valid Federal Atlantic HMS dealer permit issued under 
Sec.  635.4 or submission of reports by dealers to NMFS according to 
reporting requirements of Sec. Sec.  635.5(b)(1)(ii) and 
635.5(b)(1)(iii). This prohibition does not apply to HMS harvested by 
HMS Caribbean Small Boat Commercial vessel permit holders operating in 
the U.S. Caribbean as defined at Sec.  622.2 or to a shark harvested by 
a vessel that has not been issued a permit under this part and that 
fishes exclusively within the waters under the jurisdiction of any 
state.
    (4) * * *
    (ii) Offload an Atlantic bigeye, albacore, yellowfin, or skipjack 
tuna, swordfish, or shark other than to a dealer that has a valid 
Federal Atlantic HMS dealer permit issued under Sec.  635.4, except 
that this does not apply to HMS Caribbean Small Boat Commercial vessel 
permit holders operating in the U.S. Caribbean as defined at Sec.  
622.2 or to a shark harvested by a vessel that has not been issued a 
permit under this part and that fishes exclusively within the waters 
under the jurisdiction of any state.
* * * * *
    (53) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'', as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access permit or a swordfish handgear limited access permit in 
accordance with Sec.  635.4(f) or an HMS Caribbean Small Boat 
Commercial permit in accordance with Sec.  635.4(o).
* * * * *

[[Page 15712]]

    (55) For an individual issued an HMS Caribbean Small Boat 
Commercial permit to purchase, barter for, or trade for HMS harvested 
by other vessels with the intent to sell such landings.
* * * * *
    (e) * * *
    (1) First receive or attempt to first receive Atlantic swordfish 
from the north or south Atlantic swordfish stock without a Federal 
Atlantic swordfish dealer permit as specified in Sec.  635.4(g) unless 
the harvesting vessel possesses a valid HMS Caribbean Small Boat 
Commercial permit issued under Sec.  635.4 of this part and harvested 
the swordfish in the U.S. Caribbean as defined at Sec.  622.2.
* * * * *
    (10) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'' as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access permit or a swordfish handgear limited access permit in 
accordance with Sec.  635.4(f) or a valid HMS Caribbean Small Boat 
Commercial permit in accordance with Sec.  635.4(o).
    (11) As the owner of a vessel permitted, or required to be 
permitted, in the swordfish directed, swordfish handgear limited access 
permit category, or issued a valid HMS Caribbean Small Boat Commercial 
permit and utilizing buoy gear, to possess or deploy more than 35 
individual floatation devices, to deploy more than 35 individual buoy 
gears per vessel, or to deploy buoy gear without affixed monitoring 
equipment, as specified at Sec.  635.21(e)(4)(iii).
* * * * *
    (16) Possess any HMS, other than Atlantic swordfish, harvested with 
buoy gear as specified at Sec.  635.21(e) unless issued a HMS Caribbean 
Small Boat Commercial permit and operating within the U.S. Caribbean as 
defined at Sec.  622.2.
* * * * *
[FR Doc. 2012-6455 Filed 3-15-12; 8:45 am]
BILLING CODE 3510-22-P