[Federal Register Volume 77, Number 153 (Wednesday, August 8, 2012)]
[Rules and Regulations]
[Pages 47303-47318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19457]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110208116-2233-02]
RIN 0648-BA75


Atlantic Highly Migratory Species; Electronic Dealer Reporting 
Requirements

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

ACTION: Final rule.

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SUMMARY: This final rule will require that Federal Atlantic swordfish, 
shark, and tuna dealers report receipt of Atlantic sharks, swordfish, 
and bigeye, albacore, skipjack, and yellowfin (BAYS) tunas to NMFS 
through an electronic reporting system on a weekly basis. At this time, 
Atlantic Highly Migratory Species (HMS) dealers will not be required to 
report bluefin tuna through this electronic reporting system, as a 
separate reporting system is currently in place for this species. This 
final rule changes the current definition of who is considered an 
Atlantic HMS dealer and will require Atlantic HMS dealers to submit 
dealer reports to NMFS in a timely manner in order to be able to 
purchase commercially-harvested Atlantic sharks, swordfish, and BAYS 
tunas. Any delinquent reports will need to be submitted by the dealer 
and received by NMFS before a dealer can purchase commercially-
harvested Atlantic sharks, swordfish, and BAYS tunas from a fishing 
vessel. These measures are necessary to ensure timely and accurate 
reporting, which is critical for quota monitoring and management of 
these species.

DATES: Effective January 1, 2013.

ADDRESSES: Highly Migratory Species Management Division, 1315 East-West 
Highway, Silver Spring, MD 20910. Copies of the supporting documents, 
including a Regulatory Impact Review (RIR), Final Regulatory 
Flexibility Analysis (FRFA), and small entity compliance guide, are 
available online at the HMS Management Division 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 Delisse 
Ortiz with the Atlantic Highly Migratory Species Management Division 
and by email to [email protected] or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Delisse Ortiz or Karyl Brewster-Geisz 
at 301-427-8541, or Jackie Wilson at 240-338-3936.

SUPPLEMENTARY INFORMATION: 
    Atlantic HMS are managed under the dual authority of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 
et seq., and the Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 971 et 
seq. Under the MSA, NMFS must ensure consistency with the National 
Standards and manage fisheries to maintain optimum yield, rebuild 
overfished fisheries, and prevent overfishing. Under the ATCA, the 
Secretary of Commerce is required to promulgate regulations, as may be 
necessary and appropriate, to implement the recommendations adopted by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT). The authority to issue regulations under MSA and ATCA has been 
delegated from the Secretary to the Assistant Administrator for 
Fisheries, NOAA (AA). The implementing regulations for Atlantic HMS are 
at 50 CFR part 635.

Background

    On June 28, 2011 (76 FR 37750), NMFS published a proposed rule in 
the Federal Register to require that Federal Atlantic swordfish, shark, 
and tunas dealers report receipts of Atlantic sharks, swordfish, and 
BAYS tunas to NMFS through an electronic reporting system. The proposed 
rule also included flexible reporting regimes, which would allow NMFS 
to collect more frequent dealer reports when key Atlantic shark 
fisheries are open or as quotas become filled in the Atlantic swordfish 
and BAYS tunas fisheries, and addressed two additional topics: the 
definition of an Atlantic HMS dealer and the timely submission of 
Atlantic HMS dealer reports. 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.
    This final rule implements the requirement of electronic HMS dealer 
reporting, and is necessary to ensure timely and accurate reporting, 
which is critical for quota monitoring and management of these species. 
As described below, based in part on public comment, in this final 
rule, NMFS is changing several aspects of the proposed rule.
    In the proposed rule, NMFS considered and analyzed four

[[Page 47304]]

alternatives. In the preferred alternative in the proposed rule, NMFS 
proposed to increase the frequency of both positive and negative dealer 
reporting for Atlantic sharks, swordfish, and BAYS tunas to better 
facilitate timely quota monitoring. Specifically, NMFS proposed to 
change the reporting frequency depending on the available quota, length 
of fishing season, and species/species complexes when certain triggers 
were met by the different fisheries, as described in the proposed rule. 
In addition, the rule also proposed that all first receivers of 
Atlantic sharks, swordfish, and BAYS tunas harvested by federally-
permitted U.S. vessels, including entities that only shipped HMS 
product, must obtain a corresponding Federal Atlantic swordfish, shark, 
and/or tunas dealer permit and report such receipts to NMFS through the 
electronic reporting system so that NMFS can receive more species- and 
vessel-specific information. Finally, NMFS proposed that dealers must 
submit reports by the required deadline in order to be able to receive 
Atlantic swordfish, sharks, or BAYS tunas. Any delinquent reports would 
need to be submitted by the dealer and received by NMFS before a 
Federal Atlantic HMS dealer could purchase commercially-harvested 
Atlantic swordfish, sharks, and BAYS tunas from a fishing vessel.
    In this final rule, NMFS implements a requirement that dealers 
submit reports on a weekly basis in order to be able to purchase 
commercially-harvested Atlantic swordfish, sharks, and BAYS tunas from 
a fishing vessel. NMFS recognizes that daily reporting requirements for 
sharks, as proposed under alternative A3 in the proposed rule, would 
not allow dealers sufficient time to gather accurate price information 
for sharks and could have resulted in a large reporting burden on 
dealers. At the same time, NMFS acknowledges that unlike some shark 
fisheries, Atlantic swordfish and BAYS tunas fisheries are currently 
not quota limited and may not require more frequent reporting than the 
current biweekly reporting. However, NMFS notes that other Federal 
dealer permits currently require weekly reporting, including all 
Northeast Regional Office (NERO)-issued dealer permits. Many HMS 
dealers also possess NERO-issued permits and, therefore, are already 
reporting on a weekly basis. Additionally, many fisheries managed by 
SERO are moving to weekly dealer reporting and many HMS dealers also 
possess permits for these fisheries. Therefore, NMFS believes that 
weekly reporting balances the need for more timely landings data and 
maintains consistency in reporting requirements for different dealer 
permits. In addition, NMFS is integrating the HMS electronic reporting 
requirements into existing electronic reporting programs mainly to ease 
the overall burden on dealers.
    Thus, to better facilitate timely quota monitoring, NMFS will 
implement weekly reporting requirements for both positive and negative 
dealer reporting of Atlantic sharks, swordfish, and BAYS tunas. 
Positive reports of all species on a Federal dealer report through the 
NMFS-approved electronic reporting systems will fulfill reporting 
requirements for BAYS tunas, swordfish, and sharks purchased within the 
required reporting timeframe as required under Sec.  635.5(b)(ii). A 
negative report by the required deadline indicates no receipt or 
purchase of any species required to be reported. NMFS may consider 
changing the reporting frequency in a future rulemaking as needed for 
management of Atlantic BAYS tunas, sharks, and swordfish fisheries.
    In addition, during the comment period, NMFS heard that requiring 
first receivers to obtain dealer permits for receiving Atlantic 
swordfish and BAYS tunas would result in major disruptions to HMS 
dealers, and their business practices, especially in the Northeast. 
NMFS also heard that transporters of HMS product do not have the 
knowledge, training, or necessary equipment, such as scales for 
weighing product, to act as dealers. NMFS heard that Atlantic swordfish 
and BAYS tunas dealers have fewer species to identify compared to 
Atlantic shark dealers and price differences between Atlantic swordfish 
and BAYS tunas are greater so that species-specific reporting is more 
easily achieved for those fisheries. NMFS also heard that although the 
current definition of first receiver for Atlantic sharks potentially 
includes entities taking possession other than by purchasing trading or 
bartering, that has not been the practice in the industry. Furthermore, 
because many first receivers receive sharks, BAYS tunas, and swordfish, 
NMFS believe it is important to have one consistent definition of first 
receiver across all species. This one definition would simplify the 
regulations and maintain consistency with respect to who is considered 
a first receiver across species. Thus, NMFS will change the definition 
of first receiver with regard to which entity is required to have a 
dealer permit for receiving Atlantic tunas, sharks, and swordfish to 
make it more consistent with current industry practice and to simplify 
the regulations. That is, a person who takes possession for commercial 
purposes, any BAYS tunas, swordfish, or shark or parts of those species 
by purchasing, trading, or bartering once it is offloaded from the 
vessel owner or operator of a fishing vessel will be required to obtain 
the corresponding federal HMS dealer permit.
    NMFS proposed a range of alternatives for the implementation date 
of the electronic dealer reporting requirements and associated 
regulations, ranging from implementation beginning within 30 days of 
the final rule to a delayed implementation of three months. NMFS 
received unanimous support for delaying the implementation of the final 
regulations to allow dealers additional time to adjust their business 
practices, receive training for the new reporting system, and obtain 
capital for computer equipment and internet service. As such, this 
final rule will delay implementation of the new electronic dealer 
requirements until 2013, when the reporting system will be available 
and training workshops will have occurred. The purpose of the training 
workshops and webinars is to introduce and train dealers in using the 
new system in order to help ease the transition from the paper format 
to the new electronic reporting system. NMFS intends to hold several 
training workshops in appropriate locations along the east coast and 
Gulf of Mexico. During final implementation, NMFS will provide all 
permitted dealers with instructions on how to access the system, 
information on the web browser requirements, and instructions on how to 
obtain login and password information. This information will also be 
provided for individuals applying for a new dealer permit.
    During the comment period, NMFS also received some comments from 
dealers who were concerned about what would happen if they lost power, 
such as during a hurricane, or if the system went down. Specifically, 
these dealers did not want to be penalized for not reporting on time in 
such a situation. NMFS has designed the regulations to provide some 
Agency discretion, in responding to reporting delays caused by natural 
disasters or other non-preventable events. The system itself has 
backups and is not expected, in the course of normal business 
operations, to be down for long periods of time.

Response to Comments

    During the proposed rule stage, NMFS received nine written comments 
from non-governmental organizations,

[[Page 47305]]

fishermen, dealers, and other interested parties. NMFS also heard 
numerous comments from constituents in attendance at eight public 
hearings and while conducting outreach during phone calls. A summary of 
the major comments received for each proposed measure (electronic 
dealer reporting, frequency of reporting, timely dealer reporting and 
IRFA Alternatives) on the proposed rule during the public comment 
period is shown below with NMFS' responses. NMFS also received comments 
on exempted fishing/display permits, weak hooks, re-opening of closed 
areas, the size of existing quotas, and the stock status of sharks. 
However, these comments were not considered in the summary below as 
they were outside the scope of this rulemaking. All written comments 
submitted during the comment period can be found at http://www.regulations.gov/ by searching for RIN 0648-BA75.

Electronic Dealer Reporting

    Comment 1: NMFS should set up a workshop to sit down with Agency 
and industry representatives to design the electronic reporting system 
so that NMFS can receive feedback on the practical aspects of how a 
dealer's business works.
    Response: NMFS agrees. NMFS began designing and building an 
electronic reporting system when NMFS began working on the proposed 
rule. The system is based on similar systems such as the Standard 
Atlantic Fisheries Information System (SAFIS) and the Southeast 
electronic Trip Ticket reporting system. During this time, NMFS asked 
some HMS dealers to test the system and provide feedback. This feedback 
resulted in many changes and improvements to the system. NMFS also had 
early versions of the system available at the April 2011, September 
2011, and March 2012 HMS Advisory Panel meetings for review and 
comment. In addition, as originally proposed, the Agency will delay 
implementation of the electronic dealer reporting system until 2013 in 
order to provide sufficient time for dealers to adjust to 
implementation of the new system and the additional requirements. 
During this time, NMFS will conduct outreach with industry 
representatives and dealers as well as provide additional outreach 
materials (e.g., System User Guide and Compliance Guides) to improve 
understanding and use of the new system. These outreach materials will 
be free and available through the new system and HMS Web site (http://www.nmfs.noaa.gov/sfa/hms/index.htm).
    Comment 2: NMFS received several comments regarding the change to 
electronic reporting, including: support for the change to electronic 
reporting; questions about why NMFS is considering electronic 
reporting; support for NMFS requiring paper or electronic reporting, 
but not a mixture of both; and concern that more timely and efficient 
data collection is needed for management as the lack of real-time data 
is costing jobs. The Atlantic States Marine Fisheries Commission 
(ASMFC) also commented that electronic reporting does not require 
specialized equipment and dealers should be able to comply.
    Response: The current regulations and infrastructure of the 
Atlantic HMS quota-monitoring systems result in a delay of several 
weeks to almost a month before NMFS receives dealer data. Once NMFS 
receives dealer data in a paper format, the data need to be transferred 
into the data systems and quality checked before it is available for 
use. This delay in the availability of dealer data effects the 
management and monitoring of small Atlantic HMS quotas and short 
fishing seasons, particularly for many of the shark fisheries. As such, 
NMFS is requiring all Federal Atlantic HMS dealers (except for dealers 
reporting Atlantic bluefin tuna) to report receipt of Atlantic sharks, 
swordfish, and BAYS tunas to NMFS through one centralized electronic 
reporting system. The new electronic reporting system will be 
integrated within existing SAFIS and Trip Tickets electronic reporting 
programs, thus reducing the number of places that dealers need to 
report. Under this new system, dealers will submit HMS data 
electronically instead of in a paper format and include additional 
information that is necessary for management of HMS (e.g., vessel and 
logbook information). The electronic submission of data will eliminate 
the delay associated with mailing in reports to NMFS and transferring 
reported data into electronic systems. In this manner, HMS landings 
data will be submitted on a more real-time basis, allowing for timely 
and efficient collection and use of data for management of Atlantic 
HMS. Once the system is fully operating, NMFS could consider altering 
the 80-percent trigger limit for closing the shark fishery to allow 
fishermen to more fully utilize the available quota.
    Comment 3: NMFS received comments in opposition to mandatory 
electronic dealer reporting as some dealers do not currently own a 
computer and reporting on paper is easier than getting the electronic 
system up and running, which is often time-consuming.
    Response: While NMFS recognizes that, in the short-term, the 
implementation of an HMS electronic dealer reporting system will change 
business practices for dealers and, for some, may result in some 
additional costs associated with purchasing a computer and internet 
service. In the short-term, electronic reporting can lead to more 
efficient fisheries and business practices that could be more 
economical in the long term (e.g., fishing seasons being open longer, 
easier negative reporting, etc.). As explained in the response to 
Comment 2, the existing regulations and infrastructure regarding dealer 
reporting have created issues for effective management and monitoring 
of small Atlantic HMS quotas and short fishing seasons. For instance, 
currently there is a delay of 10 to 25 days in the receipt of landings 
data received through dealer reports in a paper format. To reduce this 
delay, the Agency is requiring all federally-permitted HMS dealers to 
report receipt of swordfish, sharks, and BAYS tunas on a weekly basis 
to NMFS through the new HMS electronic reporting system. However, as 
previously mentioned in Comment 1, the Agency will delay the 
implementation of the new HMS electronic reporting system for all 
federally-permitted HMS dealers until 2013 to allow dealers more time 
to adjust their business practices, train in the new reporting system, 
and obtain necessary equipment (e.g., computer and internet service). 
NMFS is also holding training workshops to assist dealers in learning 
to use the new system. Anyone who would like to request a training 
workshop may contact Delisse Ortiz or Karyl Brewster Geisz at 301-427-
8503.
    Comment 4: NMFS received a comment questioning whether or not the 
electronic dealer reporting system would require a high-speed internet 
connection. Some dealers also stated that NMFS will need to help 
dealers in getting the electronic reporting system set up on their 
computers as well as conduct outreach to inform dealers how to use the 
new system.
    Response: NMFS' new HMS electronic reporting system requires the 
most basic internet connection to support the new system. The 
electronic reporting system will be available through SAFIS, which 
requires data entry through a Web site. The system will also be 
available through Trip Tickets, which is a program that is downloaded 
to the dealer's computer. In the Trip Tickets system, dealers can enter 
data as time allows, and then

[[Page 47306]]

connect to the internet and send the data to NMFS, thereby eliminating 
the need for a constant internet connection during data entry, as is 
needed for data entry into SAFIS. As mentioned in Comment 1, in order 
to give sufficient time for dealers to adjust to implementation of the 
new system and the additional requirements, NMFS will also delay 
implementation of the new HMS electronic reporting system for all 
federally-permitted HMS dealers until 2013. In addition, NMFS will 
conduct workshops to help dealers learn how to use the new system and 
easily transition from the current paper format to the new HMS 
electronic reporting system.
    Comment 5: NMFS needs to streamline and simplify the reporting 
requirements, especially between state and Federal reporting 
requirements, and ensure that the new electronic dealer reporting 
requirements prevent duplicative reporting. It is good that NMFS is 
incorporating the electronic reporting program into existing systems, 
such as SAFIS and Trip Tickets; the SAFIS program is a promising model 
for this single reporting entity to meet Federal and state 
requirements. NMFS needs to make reporting as easy as possible as the 
reporting requirements are complex and confusing.
    Response: NMFS is working with state agencies to streamline data 
collection to the extent possible to try to avoid duplicative 
reporting. Such coordination will also make the reporting process as 
simple and straightforward as possible. In addition, by incorporating 
electronic HMS dealer reporting requirements within SAFIS and Trip 
Tickets, NMFS is ensuring that in most cases dealers will only have to 
report to one system instead of multiple systems to meet their Federal 
and state reporting requirements. However, as mentioned below in 
Comment 40, some states require separate reporting as established by 
state law. NMFS also recognizes that the terms of the Federal permits 
may result in additional mandatory Federal reporting requirements 
beyond those required by states. NMFS will continue to coordinate with 
states to reduce duplicative reporting, to the extent possible.
    Comment 6: NMFS received a comment questioning how NMFS monitors 
shark landings from the state of Louisiana as shark fishing from this 
state is a large problem.
    Response: NMFS recognizes that Louisiana state fishermen, and state 
fishermen from other states, are major participants in the shark 
fisheries. The regulations implemented under this rulemaking will not 
change how shark landings are counted for quota monitoring. Currently, 
NMFS receives landings from all states and compares those landings with 
the landings reported by Federal dealers. Under the electronic system, 
this comparison could be easier depending on the extent that state and 
Federal requirements match, but the general concept for monitoring 
shark landings from all state and Federal fishermen will not change.
    Comment 7: Dealers and first receivers should not have to report 
information where vessels fish as NMFS already receives vessel 
monitoring system (VMS) reports and daily logbooks from the fishing 
vessels. NMFS should use logbooks for quota monitoring as they have 
more detailed information than dealer reports.
    Response: Logbooks, VMS, and dealer reports provide the Agency with 
different types of information, which are all necessary for management. 
The logbooks, which are required by most HMS commercial fishermen, 
provide information on fishing effort as well as amount of catch and 
location of fishing. Logbooks are submitted after each trip but, 
because of the amount of data and number of vessels involved, the data 
is not available for use on a real-time basis. VMS provides real-time 
information to inform enforcement on how and where a particular vessel 
is fishing as well as where it is fishing, but is not required on all 
HMS commercial vessels. Dealer reports provide information on landings 
as well as price information, which is not available in the logbook 
data or through VMS. In addition, under the new HMS electronic 
reporting system, NMFS will require dealers to provide information on 
where fish were caught to ensure proper quota management, for example 
by distinguishing between Atlantic and Gulf of Mexico non-sandbar LCS. 
In the past, the geographical information used in management of such 
quotas has been based on the physical location of the dealer, not where 
the sharks were actually caught. Therefore, the Agency requires 
different entities to submit different types of reports to NMFS in 
order to collect the necessary information for management (i.e., 
information on fishing effort, location of fishing, catch and landings 
information, and price information).
    Comment 8: NMFS needs to make sure there is a way dealers can print 
a copy of their report as dealers need to keep a copy of submitted 
reports for their files. Dealers need a way to verify they submitted 
their reports electronically.
    Response: NMFS agrees. The new HMS electronic reporting system will 
allow all Federal HMS dealers to print out a copy of each dealer report 
that is electronically submitted and received by NMFS. In addition, the 
new HMS electronic reporting system will provide dealers with a 
confirmation number once the reports have been submitted and received 
by NMFS, allowing dealers to verify submission of their dealer reports 
to NMFS.
    Comment 9: NMFS should allow dealers to report bluefin tuna through 
the new electronic dealer reporting system under daily reporting 
requirements and get rid of the paper and fax reporting system 
currently in place. This change would allow electronic reporting for 
all HMS.
    Response: Due to the complexity of the current Atlantic bluefin 
tuna reporting system, Federal HMS dealers reporting Atlantic bluefin 
tuna will continue to follow the current reporting requirements for 
this species at this time. However, in the future, NMFS could consider 
including Atlantic bluefin tuna in the HMS electronic dealer reporting 
system.
    Comment 10: NMFS needs to develop a backup plan, such as reporting 
via fax or paper, for when the internet is down so that dealers are not 
forced to be out of compliance. This may be especially important for 
dealers in the Caribbean if there is a storm and the internet and power 
are down for a long period of time.
    Response: The Agency recognizes that there may be interruptions in 
electrical power or internet service that are out of the control of 
Federal HMS dealers, but will impact dealers' abilities to submit 
reports to NMFS through the new HMS electronic reporting system. 
Further, given the changes to the reporting timeframe from the proposed 
to the final rule (i.e., from daily to weekly reporting), NMFS does not 
expect late reporting due to system disruptions to be as much of an 
issue. NMFS encourages dealers to contact the system administrator for 
the HMS electronic dealer reporting system when they experience any 
type of interruption for an extended period of time, and expects 
dealers to resume reporting as soon as possible once the disruption 
ends.
    Comment 11: Many fishermen and dealers do not encounter sharks and 
tunas in Puerto Rico, therefore the proposed changes would not affect 
them. However, many of the dealers speak Spanish and are not familiar 
with computers, so they would need a second person to help them submit 
reports.
    Response: Due to limits on Agency funding at this time, the new 
electronic dealer reports will be available only in English. The Agency 
may consider a

[[Page 47307]]

Spanish or Vietnamese version in the future. We have, however, 
translated notices and outreach documents into Spanish and will 
translate these notices and documents in Vietnamese as well. We have 
and will continue to conduct workshops in Spanish. In addition, the new 
electronic reporting system will be tailored to include the landing 
ports and vessels specific to all regions, including the Caribbean. 
This tailoring should allow non-English speaking dealers from any 
region to more easily utilize the new system once they are familiar 
with it. For those non-English speaking dealers who need additional 
assistance, NMFS will establish a dedicated phone number (301-427-8590) 
and email address ([email protected]) to provide assistance in 
completing reports. Finally, as previously mentioned in Comment 1, the 
Agency is delaying the implementation of the new HMS electronic 
reporting system until 2013 to allow dealers more time to adjust their 
business practices, obtain the necessary equipment (e.g., computer and 
internet service), and to allow NMFS to conduct workshops in areas like 
the Caribbean, which have not experienced electronic reporting to date.

Frequency of Reporting

    Comment 12: NMFS received several comments stating that dealers 
operating small businesses would have difficulty reporting 
electronically on a more frequent basis because they lack the staff to 
support the current biweekly reporting requirements; the reporting 
requirements are complex and confusing; and the increased reporting 
frequency will result in a larger reporting burden. Small businesses 
would benefit from less frequent reporting, and more frequent reporting 
may result in dealers being late in their submission, which could 
potentially keep their permits from being renewed. The proposed 
electronic dealer reporting requirements are burdensome, and dealers 
are becoming frustrated with the increasing number of regulations, 
which ultimately take time away from ensuring product quality. NMFS 
also received specific comments regarding the reporting frequency for 
tunas and swordfish, including: dealers should report as soon as they 
receive product; dealers should submit weekly reports; dealers feel 
electronic reporting of BAYS tunas and swordfish on a 21-day to monthly 
timeframe would suffice; dealers support the status quo or biweekly 
reporting for BAYS tunas and swordfish; and dealers support biweekly 
reporting with reporting frequency reflecting the average landing rate 
when 80 percent of the quota is filled. NMFS also received comments 
that dealers were opposed to daily or weekly reporting for pelagic non-
porbeagle sharks, BAYS tunas, or swordfish as these fisheries are not 
in any danger of experiencing overharvests. Daily reporting for 
swordfish would be a burden.
    Response: Based on public comment, NMFS will change the reporting 
frequency that was originally proposed for Atlantic swordfish, BAYS 
tunas, and shark dealers in the proposed rule published on June 28, 
2011 (76 FR 37750) to simplify reporting requirements as well as 
balance the need for timely landings data while avoiding excessive 
reporting burdens on dealers. NMFS recognizes that daily reporting 
requirements for sharks as proposed in the proposed rule would not 
allow dealers sufficient time to gather accurate price information for 
sharks and could have resulted in a large reporting burden on dealers. 
At the same time, NMFS acknowledges that unlike some shark fisheries, 
Atlantic swordfish and BAYS tunas fisheries are currently not quota 
limited and may not require more frequent reporting than the currently 
biweekly reporting. However, NMFS notes that some other Federal dealer 
permits, such as all NERO-issued dealer permits, require weekly 
reporting. Many HMS dealers also possess these NERO-issued permits and, 
therefore, are already reporting on a weekly basis. Additionally, many 
fisheries managed by the SERO are moving to weekly reporting and many 
HMS dealers also possess permits for these fisheries. NMFS believes 
that weekly reporting balances the need for more timely landings data 
and maintains consistency in reporting requirements for different 
dealer permits. In addition, NMFS is integrating the HMS electronic 
reporting requirements into existing electronic reporting programs, 
easing the overall burden on dealers.
    Comment 13: NMFS received several comments regarding negative 
reports, including: dealers do not understand why they have to submit 
negative reports to NMFS; submitting negative reports should be as 
simple as replying to an email that reminds the dealer of a reporting 
deadline; NMFS should not require negative reports to be submitted on a 
daily basis; negative reports should be done on a biweekly or a monthly 
basis; submitting negative reports more than once a month is 
unnecessary busy work; and the submission of negative reports should 
not be required. NMFS also heard that there should be a way dealers can 
indicate a block of time when they will not be receiving product, as 
some fisheries are seasonal in nature.
    Response: Negative reports submitted by HMS dealers are an 
essential part of quota monitoring. By submitting negative reports, 
dealers inform NMFS that they did not receive HMS product during that 
reporting time period. These reports allow NMFS to distinguish between 
dealers who have not received product during a reporting period and 
dealers who have simply not reported to NMFS during a given reporting 
period. By being able to identify dealers who have not reported versus 
those who have not received product, and by knowing the landings data 
historically reported by particular dealers, NMFS can better determine 
the potential status of different quotas as well as which dealers may 
have failed to report. Without negative reports, NMFS runs a greater 
risk keeping fisheries open when, in fact, they should be closed to 
prevent overharvest of the quota.
    Negative reports must occur with the same frequency as positive 
reports in order to inform NMFS about which dealers did not receive 
product during a specific reporting period versus which dealers have 
not reported. Receiving negative reports on a less frequent reporting 
basis than positive reports will not allow NMFS to determine which 
dealers have received product during a given reporting period as 
described above.
    Finally, the electronic reporting system will allow dealers to 
indicate time periods when they will not be accepting product for up to 
90 days. This should lessen the negative reporting burden on dealers.
    Comment 14: NMFS received a comment stating that because most fish 
are sold on consignment, with dealers often having to wait 21 days for 
actual price information, the proposed weekly reporting frequency would 
result in dealers having to submit and modify every report, creating an 
unnecessary burden on dealers. Therefore, NMFS should consider a 
reporting frequency of at least 21 days, so that dealers do not have to 
enter data in multiple times for a single transaction.
    Response: Currently, the reporting frequency for all HMS dealers is 
biweekly. As outlined in the response to Comment 12, based on public 
comment, NMFS will require weekly reporting for Atlantic swordfish, 
sharks, and BAYS tunas dealers.
    Dealers will be able to update price information on a past 
submitted report for up to 30 days from the submission of that report 
in order to provide NMFS with the most accurate price information 
available. This balances the

[[Page 47308]]

need for timely landings data with the need for additional time to 
provide NMFS with accurate price information.
    Comment 15: Changing the reporting frequency for swordfish from 
weekly to daily when the quota reaches 80 percent makes it seem like 
there is a problem with the swordfish quota when the United States will 
most likely not fill its swordfish quota.
    Response: As outlined in the response to Comment 12, in this final 
rule, NMFS has reconsidered the proposed reporting frequencies for 
Atlantic HMS dealers to simplify reporting requirements and balance the 
need for timely landings data while avoiding an excessive reporting 
burden on dealers. NMFS will require weekly reporting for Atlantic 
swordfish, sharks, and BAYS tunas dealers. NMFS may consider changing 
the reporting frequency in a future rulemaking as needed for management 
of Atlantic BAYS tunas, sharks, and swordfish fisheries. Allowing 
flexibility in the required reporting frequency for HMS dealers will 
allow NMFS to require more frequent dealer reporting if the swordfish 
fishery were to begin achieving its allocated quota in the future. It 
is not meant to indicate there are any problems with the swordfish 
fishery, rather, it will allow for more timely reporting and quota 
monitoring if the fishery were to ever become quota limited in the 
future.
    Comment 16: NMFS received several comments regarding the reporting 
frequency for sharks, including: support for the proposed daily 
submission of shark dealer reports as sharks are hard to identify and 
are quota limited; NMFS should require weekly reporting when the shark 
season is open for non-sandbar LCS, non-blacknose SCS, blacknose 
sharks, increase the reporting frequency to daily when the quota 
reaches 50 percent, and then decrease the reporting frequency when the 
seasons for these fisheries close; NMFS should consider biweekly 
reporting for sharks when non-sandbar LCS, non-blacknose SCS, and 
blacknose shark fisheries are closed. NMFS also heard that daily 
reporting of sharks is not practical; closing the fishing season early 
is a better alternative to daily reporting; and NMFS should consider 
keeping the current biweekly reporting for sharks or consider monthly 
reporting; and NMFS should only consider daily reporting once the shark 
quota reaches 80-percent.
    Response: As outlined in the response to Comment 12, based on 
public comment, NMFS has reconsidered the proposed reporting frequency 
for Atlantic shark dealers and will require Atlantic shark dealers to 
report on a weekly basis. This will simplify reporting requirements, as 
well as balance the need for timely shark landings with more time for 
dealers to report shark product unless NMFS determines more frequent 
reporting is required in the future. NMFS feels monthly reporting of 
shark landings will not provide timely enough data for monitoring small 
quotas, and will increase the probability of overharvests. In addition, 
NMFS considered changing the shark dealer reporting frequency as the 
shark quotas filled (i.e., increasing the reporting frequency to daily 
when the quota reaches 50 percent, and then decreasing the reporting 
frequency when the seasons for these fisheries close), but felt such a 
reporting regime may be difficult for dealers to keep track of and may 
hamper compliance with the reporting requirements. Thus, NMFS is trying 
to simplify the reporting requirements while balancing the need for 
more frequent data without over burdening dealers or adding additional 
complexity to the reporting requirements for dealers.
    Comment 17: NMFS should require weekly electronic reporting of BAYS 
tunas, swordfish and sharks so that all HMS species have the same 
reporting frequency; it is overly burdensome for dealers to keep track 
of different reporting frequencies for different species, especially if 
those frequencies change over time.
    Response: NMFS agrees. The Agency appreciates that it may be 
difficult for dealers to keep track of different reporting requirements 
for different HMS. Therefore, to minimize the reporting burden on 
dealers, NMFS changed the proposed flexible reporting requirements in 
the proposed rule and is requiring Atlantic HMS swordfish, sharks, and 
BAYS tunas dealers to report on a weekly basis. NMFS believes that 
weekly reporting balances the need for more timely landings data and 
maintains consistency in reporting requirements for different dealer 
permits. In addition, NMFS is integrating the HMS electronic reporting 
requirements into existing electronic reporting programs, easing the 
overall burden on dealers. The system will accept reports more 
frequently if dealers need to report HMS on a more frequent basis.
    Comment 18: The daily or weekly reporting frequency would be 
difficult given the time it takes for some dealers to receive product 
that is being transported from a fishing vessel or the time it takes to 
process product when a dealer is busy. In addition, some fish are sold 
to different dealers before the vessel is even offloaded, therefore, 
dealers would not be able to report on a daily or weekly basis as the 
fishing trips are longer than required reporting frequency.
    Response: The timeframe associated with dealer reporting 
requirements applies once a dealer first receives HMS product (i.e., it 
does not apply while the fishing vessel is still at sea before the 
product is offloaded). As outlined in the response to Comment 12, NMFS 
will maintain weekly reporting for Atlantic swordfish, sharks, and BAYS 
tunas dealers as it satisfies the need for more timely landings data 
while maintaining consistency in reporting requirements for different 
dealer permits.
    Comment 19: Dealers in the U.S. Virgin Islands may be able to 
comply with electronic dealer reporting; however, due to frequent power 
and internet outages, reporting more frequently (i.e., daily or weekly) 
would be an issue. Additionally, most fishermen sell their HMS catch 
directly to the public. If these individuals obtained dealer permits in 
the future, as most of them currently do not have HMS dealer permits, 
they most likely would not have access to computers for electronic 
reporting. Therefore, NMFS should obtain landings information from the 
territorial trip tickets and not through separate dealer reports.
    Response: All entities that purchase HMS from federally-permitted 
HMS vessels are currently required to obtain HMS dealers permits. 
Federally-permitted HMS dealers located in the Caribbean region are 
also currently required to submit paper reports to NMFS on a biweekly 
basis. Based on this final rule, federally-permitted HMS dealers will 
be required to report electronically via the HMS electronic dealer 
reporting system. As explained in the response to Comment 10, the 
Agency recognizes that there may be interruptions in electrical power 
or internet service that are out of the control of Federal HMS dealers, 
but will impact how dealers submit reports to NMFS through the new HMS 
electronic reporting system. Further, given the changes to the 
reporting timeframe from the proposed to the final rule (i.e., from 
daily to weekly reporting), NMFS does not expect late reporting due to 
system disruptions to be as much of an issue. NMFS encourages dealers 
to contact the system administrator for the HMS electronic dealer 
reporting system when they experience any type of interruption for an 
extended period of time, and expects dealers to resume reporting as 
soon as possible once the disruption ends. Finally, NMFS is currently 
working on a rulemaking that may consider collecting landings 
information

[[Page 47309]]

associated with any new HMS fishing permits through territorial trip 
tickets.
First Receiver
    Comment 20: If there are problems with dealers accurately reporting 
different shark species, then NMFS should find a direct solution for 
species-specific reporting of sharks and not unnecessarily burden non-
shark HMS dealers. NMFS has not provided any discussion of widespread 
problems with Atlantic HMS reporting and the industry is not aware of 
misidentification problems in HMS swordfish or tunas dealer reports. 
First receivers may need to be the dealer for sharks, but species 
identification is not a problem that the industry recognizes for BAYS 
tunas or swordfish. First receivers of BAYS tunas and swordfish should 
not have to get a dealer permit.
    Response: NMFS realizes that swordfish and tuna fisheries operate 
differently than shark fisheries, in part due to the difference in 
prices associated with swordfish and BAYS tunas, and in part due to 
difficulties in identifying sharks. Thus, because species 
identification and species-specific reporting tend to be issues related 
to HMS shark dealers, NMFS will keep the status quo with regard to 
which entity is required to have a dealer permit for Atlantic tunas and 
swordfish. That is, a person who takes possession for commercial 
purposes, of any BAYS tunas, swordfish, or shark or any parts of those 
species by purchasing, trading, or bartering for it from the fishing 
vessel or owner of a fishing vessel, once it is offloaded, will be 
required to obtain the corresponding Federal HMS dealer permit.
    Comment 21: Since non-U.S. citizens cannot obtain U.S. permits, the 
proposed first receiver requirement would not work for product that is 
offloaded in Canada or other foreign countries by first receivers who 
are not U.S. citizens, and NMFS has no jurisdiction to require 
reporting by docks, shipping companies, and transporters that are not 
U.S. companies.
    Response: Due, in part, to the complexity of dealer transactions, 
including fish being brought in from foreign ports, and the importance 
of having one consistent definition of first receiver across all 
species, NMFS is changing the definition of first receiver with regard 
to which entity is required to have a dealer permit for Atlantic tunas, 
swordfish, and sharks to make it more consistent with current industry 
practice and to simplify regulations. As such, a person who takes 
possession, for commercial purposes, of any BAYS tunas, swordfish, or 
shark or any parts of those species by purchasing, trading, or 
bartering for it from the fishing vessel or owner of a fishing vessel, 
once it is offloaded, will be required to obtain the corresponding 
Federal HMS dealer permit.
    Comment 22: Requiring the first receiver to obtain a dealer permit 
will result in duplicative reporting, especially in the Northeast, as 
the person who receives the product will be required to have a dealer 
permit and report to NMFS, and then the dealer who ultimately purchases 
that product from the fishing vessel will also be required to report 
his entire purchase through SAFIS. Identifying duplicate reports will 
be difficult as most HMS product is offloaded at a dock and goes to 
multiple fish houses/dealers.
    Response: As explained above, NMFS will change the definition with 
regard to which entity is required to have a dealer permit in order to 
make it more consistent with current industry practice and to simply 
the regulations. This should reduce the possibility for duplicative 
reporting and should not interrupt business practices as it will not 
change the universe of permitted dealers. In addition, dealers will be 
able to report HMS through existing SAFIS and Trip Tickets electronic 
systems, which will keep dealers from having to report in multiple 
systems.
    Comment 23: In the Gulf of Mexico, many dealers are the first 
receivers, and fish are offloaded at a fish house that weighs, packs, 
pays the vessel, and reports the landings to NMFS. In addition, dealers 
usually own their own trucks, so the truck drivers would be covered by 
the dealers' permits. Pack houses who receive fish also have the dealer 
permits and report to NMFS. NMFS needs to simplify it so that the 
person who has product come across the dock needs to report it to NMFS. 
However, NMFS also heard that a first receiver should be able to 
purchase product from a fishing vessel without necessarily owning the 
dock facility where the product is landed as long as they possess the 
proper permits, and the first receiver should not need a dealer permit 
unless they purchase product from the fishing vessel.
    Response: In the proposed rule, NMFS proposed to have first 
receivers, such as pack houses, be required to obtain HMS dealer 
permits and report to NMFS. However, based on public comment that 
indicated this would create a major disruption in business practices, 
given that current regulations appear to work for dealers in both the 
Gulf of Mexico and Atlantic regions, and the importance of having one 
consistent definition of first receiver across all species, NMFS is 
changing the definition of first receiver with regard to which entity 
is required to have a dealer permit for Atlantic tunas, swordfish, and 
sharks to make it more consistent with current industry practice and to 
simplify the regulations. As such, a person who takes possession, for 
commercial purposes of any BAYS tunas, swordfish, or shark or any parts 
of those species by purchasing, trading, or bartering for it from the 
fishing vessel or owner of a fishing vessel, once it is offloaded, will 
be required to obtain the corresponding Federal HMS dealer permit.
    Comment 24: NMFS received several comments regarding first 
receivers of HMS product having to obtain a dealer permit, including: 
NMFS should keep the current definition of dealer for swordfish and 
BAYS tunas (i.e., the entity that purchases the product from the vessel 
should be considered the dealer); the facilities where fish are 
unloaded and packed in vats for shipment do not know final weights or 
prices; when fish are packed by a dock for shipment, packing/saltwater 
ice is not removed from fish in order to keep fish cold, and tails are 
not cut to preserve freshness of the fish; dealers remove ice, cut 
tails, weigh the fish, determine prices, and then repack the fish in 
ice, which is a labor intensive and costly process; the dealers' 
weights are more accurate than the shipping weights and recording 
accurate weight information is important not only for economic reasons 
and domestic quota management, but also for reporting to ICCAT; and if 
a dealer pays a dockage fee to have fish cross a remote dock, the catch 
and vessel information is forwarded to the dealer via fax or the 
transporter so that the current dealers have vessel-specific 
information that can be reported to NMFS. NMFS also heard that entities 
purchasing product from fishing vessels are not going to share price 
information with transporters; therefore, NMFS will lose price 
information by requiring first receivers, such as transporters, to 
obtain dealer permits and report to NMFS.
    Response: Based on public comment, NMFS understands that many 
entities responsible for packing and shipping fish do not have vessel 
or price information that is required on dealer reports. NMFS proposed 
that first receivers, including transporters, of non-BFT HMS product 
obtain an HMS dealer permit to ensure species-specific and vessel-
specific information is received from dealers and reported to NMFS for 
quota monitoring. NMFS has learned that many of these facilities and

[[Page 47310]]

transporters that first receive Atlantic BAYS tunas and swordfish 
products do not have final fish weights or price information and lack 
the resources and incentive to function as proper HMS dealers. In 
addition, since requiring transporters to obtain an HMS dealer permit 
may disrupt business practices, result in vessels not being able to 
land in safe harbors/docks, or result in vessels being unable to unload 
at reliable dealers, NMFS will not require transporters to obtain HMS 
dealer permits at this time. If the current universe of dealers has 
access to the information required by NMFS for reporting, including 
vessel-specific information, NMFS agrees that requiring first receivers 
of Atlantic BAYS tunas and swordfish product to have dealer permits and 
report to NMFS would not be an efficient process. In addition, having 
accurate price information is critical for management and the analysis 
of economic impacts. Thus, NMFS will maintain the status quo with 
regard to which entity is required to have a dealer permit for Atlantic 
BAYS tunas and swordfish.
    Comment 25: NMFS heard that in certain areas, such as in the Gulf 
of Mexico region, the trucks used to transport fish typically belong to 
the dealer who is purchasing the product; and individuals who transport 
fish should be an extension of the dealers' place of business to ensure 
that product is properly stored and handled.
    Response: Requiring transportation companies to be owned by dealers 
is outside the scope of this rulemaking. The Food and Drug 
Administration (FDA) published regulations (December 18, 1995; 60 FR 
65197) mandating the application of the Hazardous Analysis of Critical 
Control Point (HACCP) principles to ensure the safe and sanitary 
processing of seafood products. Dealers are responsible for ensuring 
product they purchase and sell is in compliance with FDA HACCP 
regulations.
    Comment 26: NMFS received a comment asking if a dealer located in a 
region closed for a particular shark fishery could accept shark product 
from an area that is open for that fishery if the dealer does not have 
a facility in that open area.
    Response: This final rule does not change the regulations at 50 CFR 
Sec.  635.28(b)(4). Under those regulations, except for under certain 
conditions, sharks dealers located in a region closed to a specific 
species or complex are not able to accept that species or complex from 
an area that is open unless the dealer has a facility in the open area 
and can receive sharks at that facility.
    Comment 27: NMFS should consider requiring fishermen to offload HMS 
product to designated ports/fish houses as is currently required in the 
reef fish Individual Fishing Quota (IFQ) Program in the Gulf of Mexico.
    Response: NMFS may consider this requirement in future rulemakings, 
especially for any HMS fisheries that might be considering catch share 
programs in the future, such as the shark fishery.
    Comment 28: Dealers in the U.S.V.I. and Puerto Rico are usually the 
first receivers.
    Response: Given the current definition of an HMS ``dealer'' under 
Sec.  635.4, this should not change any business practices of dealers 
in the U.S. Caribbean as this action will change the current 
definitions of a dealer to make it more consistent with current 
industry practice.

Timely Dealer Reporting

    Comment 29: NMFS received several comments regarding the proposed 
regulations to encourage timely reporting, including: support for the 
proposed changes where dealers would not be able to accept HMS product 
unless they had submitted their reports on time; NMFS should not punish 
all dealers because of a small universe of dealers that are not 
reporting on time; and NMFS should have enforcement actions against 
dealers who are not reporting on time instead of implementing new 
regulations.
    Response: There have been several issues of late reporting by 
Federal Atlantic HMS dealers, particularly for a number of the Atlantic 
shark dealers. Efforts by the Agency to follow up on dealer reports 
(i.e., phone calls; certified correspondence regarding late reporting; 
visits from local port agents and/or agents with the NOAA Office of Law 
Enforcement) drain scarce staff resources. In addition, late reporting 
negatively effects NMFS' ability to monitor the quota in a timely 
manner. NMFS feels the actions taken in this final rule, in regard to 
late reporting, strengthens the Agency's ability to take enforcement 
action when appropriate while not imposing any additional requirements 
on dealers. As such, in order to ensure timely reporting by all 
Atlantic HMS dealers, the Agency will require that a Federal Atlantic 
HMS dealer will only be authorized to purchase Atlantic swordfish, 
sharks, and BAYS tunas if the dealers have submitted all required 
reports to NMFS by the required reporting deadline. Any delinquent 
reports will need to be submitted and received by NMFS before a dealer 
could purchase commercially-harvested Atlantic swordfish, sharks, and 
BAYS tunas from a fishing vessel. Failure to report Atlantic sharks, 
swordfish, and BAYS tunas to NMFS within the required reporting 
frequency will result in dealers being ineligible to purchase Atlantic 
sharks, swordfish, and BAYS tunas. Although submission of delinquent 
reports will allow a dealer to legally purchase commercially- harvested 
Atlantic swordfish, sharks, and BAYS tunas from a fishing vessel, late 
reporting will still be a violation of the regulations and could result 
in enforcement action.
    Comment 30: Larger dealers may accept product even if a report has 
not been submitted on time due to different people submitting reports 
and accepting product. The scenario would not be intentional, but it 
could happen. NMFS should not deny a business the ability to accept 
fish strictly on the basis of late paperwork, and such a measure should 
be seen as a last resort. NMFS needs to be reasonable concerning 
penalties for inadvertent paperwork omissions. We have seen times when 
NMFS computers go down, sometimes over an entire weekend. NMFS should 
not apply penalties if they cannot receive information from dealers; 
therefore, NMFS should drop the idea of penalties for late reporting 
unless it becomes a persistent problem. NMFS should allow dealers to 
purchase product even if they are late in reporting, as it is important 
to revitalize HMS fisheries.
    Response: As previously mentioned in the response to Comment 29, 
late reports from Federal HMS dealers effect timely quota monitoring 
and require staff resources to resolve. Under the new HMS electronic 
reporting system, all delinquent reports will need to be submitted and 
received by NMFS before a dealer could purchase commercially-harvested 
Atlantic swordfish, sharks, and BAYS tunas. A Federal Atlantic HMS 
dealer who is receiving, and/or purchasing HMS product without having 
submitted all required report to NMFS will be in violation and subject 
to enforcement action for failing to submit reports on time as well as 
accepting non-BFT HMS product during the time the dealer reports were 
delinquent. This may require additional coordination between persons 
who receive fish and person who report to NMFS to ensure all the 
necessary reports have been submitted to NMFS before new non-BFT HMS 
product is accepted. In the event of a reporting disruption due to a 
loss of power or internet service, as with any instance of regulatory 
non-compliance, the Agency would exercise its enforcement discretion in 
determining whether or

[[Page 47311]]

not to take enforcement action considering all the circumstances, for 
example, whether the outage or loss was verified, and whether the 
dealer submitted the report as soon as possible once the outage ended. 
Further, given the changes to the reporting timeframe from the proposed 
to the final rule (i.e., from daily to weekly reporting), NMFS does not 
expect late reporting due to system disruptions to be as much of an 
issue. NMFS encourages dealers to contact the system administrator for 
the HMS electronic dealer reporting system when they experience any 
type of interruption for an extended period of time.
    Comment 31: NMFS should have a way to remind dealers of when their 
reports are due to NMFS. NMFS should provide adequate warning and 
opportunity to provide reports before having their livelihoods damaged 
just for the convenience of NMFS.
    Response: The Agency expects federal HMS dealers to comply with all 
applicable regulations without prompting from the Agency. It is the 
dealer's responsibility to keep track of reporting deadlines. In the 
final rule, NMFS will require a weekly reporting deadline for Atlantic 
swordfish, sharks, and BAYS tunas dealers. NMFS expects that the 
consistent reporting frequency for all HMS dealer permits should make 
it easier to remember when HMS reports are due to NMFS. Additionally, 
the new HMS electronic reporting system will track the timing and 
submission of Federal Atlantic HMS dealer reports and automatically 
notify dealers and NMFS (the HMS Management Division and NOAA Office of 
Law Enforcement) via email if reports are delinquent. The new HMS 
electronic reporting system will also notify dealers of the current 
reporting deadlines.
    Comment 32: NMFS needs to provide incentives to dealers so they 
comply with all of the dealer requirements (e.g., valid dealer permit, 
reporting deadline).
    Response: The Agency limits the sale of HMS product harvested from 
federally permitted vessels to federally-permitted HMS dealers. This 
should provide some incentive for federally-permitted HMS dealers to 
comply with all applicable regulations. Federal HMS dealers are 
required to submit dealer data in a timely manner to NMFS. Such timely 
submission is critical for accurate quota monitoring and management of 
HMS. Failure to comply with timely submission will affect the dealer's 
ability to accept new HMS product and will also make them subject to 
enforcement action. In addition, failure to submit timely dealer 
reports can lead to overharvests of allocated quotas, which can 
decrease quotas and shorten fishing seasons in subsequent fishing 
years, which can negatively affect both fishermen and dealers.

IRFA Alternatives

    Comment 33: NMFS received a comment supporting the delayed 
implementation date of February 1, 2012. NMFS should give sufficient 
time for dealers to prepare for the new system's implementation and 
learn how to use it.
    Response: NMFS agrees with this comment and will delay 
implementation of proposed electronic weekly reporting requirements for 
all federally-permitted HMS dealers for Atlantic swordfish, BAYS tunas, 
and shark dealers until January 2013.

Economic Concerns

    Comment 34: NMFS has grossly under estimated the time it will take 
dealers to submit dealer reports and the cost associated with hiring 
additional personnel to be in compliance with the additional paperwork.
    Response: Based on public comments, NMFS has reconsidered the 
proposed reporting frequencies for Atlantic HMS dealers to simplify 
reporting requirements and satisfy the need for timely landings data 
while avoiding an excessive reporting burden on dealers. NMFS 
recognizes that daily reporting requirements for sharks as proposed 
under alternative A3 in the proposed rule would not allow dealers 
sufficient time to gather accurate price information for sharks and 
could have resulted in a large reporting burden on dealers. At the same 
time, NMFS acknowledges that unlike some shark fisheries, Atlantic 
swordfish and BAYS tunas fisheries are currently not quota limited and 
may not require more frequent reporting than the current biweekly 
reporting. However, NMFS notes that other Federal dealer permits, such 
as all NERO-issued dealer permits, require weekly reporting. Many HMS 
dealers also possess these NERO-issued permits and, therefore, are 
already reporting on a weekly basis. Additionally, many fisheries 
managed by the SERO are moving to weekly reporting and many HMS dealers 
also possess permits for these fisheries. Therefore, NMFS believes that 
weekly reporting balances the need for more timely landings data and 
maintains consistency in reporting requirements for different dealer 
permits. In addition, NMFS is integrating the HMS electronic reporting 
requirements into existing electronic reporting programs in large part 
to ease the overall burden on dealers.
    Comment 35: NMFS's average cost of internet service is incorrect 
and flawed. My monthly high-speed internet service is higher, around 
$110 a month.
    Response: Based on public comment, NMFS has revised the cost of 
internet service from $50 per month used in the analyses for the 
proposed rule to $110 per month. This $110 estimate was the average 
cost for internet service presented in the IRFA, based on public 
comment, more accurately reflects the cost of having monthly internet 
service. Therefore, assuming dealers will need the most basic internet 
connection to support NMFS' electronic reporting system at a cost of 
$110 per month for internet services, the average annual cost to 
dealers will be $1,320 for internet services ($110 * 12 months = 
$1,320/year).

General

    Comment 36: NMFS should have a dedicated email for submitting 
comments instead of having comments submitted through the 
regulations.gov Web site. The Councils provide an email address for 
submission of comments.
    Response: Current NMFS guidance requires all public comments on 
rulemakings to be submitted through http://www.regulations.gov. 
Regulations.gov is continually updating its Web page based on public 
feedback. Additionally, users can establish news feeds for any Federal 
agency that regularly publishes proposed and final rules.
    Comment 37: The ASMFC and others commented that NMFS currently 
closes the Atlantic shark fisheries when landings in each fishery reach 
80 percent of quota to avoid overages. NMFS should consider increasing 
this threshold with the implementation of electronic dealer reporting 
as the Agency will be receiving more timely data.
    Response: NMFS will consider increasing the 80-percent threshold 
used to close the shark fisheries in the future based on timely receipt 
of state data and timely reporting by dealers.
    Comment 38: Currently, the Gulf reef fish fishery requires fishing 
vessels to get a confirmation number for their catch before a vessel 
can offload. This ensures that the Agency can account for all landings 
under the IFQ system for Gulf reef fish. NMFS should consider a similar 
system for HMS so that product can be tracked and reported to NMFS.
    Response: NMFS did not analyze the impact of requiring a 
confirmation code upon landing of HMS product in this rulemaking. 
However, NMFS may consider this requirement in a future rulemaking, as 
appropriate.

[[Page 47312]]

    Comment 39: NMFS should require all state dealers to get Federal 
dealer permits in the Gulf of Mexico. It would make the collection of 
data more coordinated between state and Federal agencies.
    Response: NMFS agrees that the coordination of data collection 
between state and Federal agencies would make data collection more 
efficient and timely. To that end, NMFS is appreciative of the efforts 
of ASMFC in implementing such a requirement in the Atlantic states 
under its jurisdiction. However, NMFS cannot require all states to 
implement such regulations. Rather, NMFS is working with state agencies 
in the Gulf of Mexico and Caribbean to streamline data collection, to 
the extent possible.
    Comment 40: NMFS should ensure that dealers and brokers are not 
subjected to duplicative reporting and out of state dealer licensing 
requirement that presently occurs in South Carolina.
    Response: As mentioned in the response to Comment 41, NMFS tries to 
streamline data collection, to the extent possible. However, NMFS does 
not have jurisdiction over what states can request for reporting under 
state law. While NMFS continues to coordinate with states to reduce 
duplicative reporting to the extent possible, because NMFS mandates 
reporting of HMS for federally-permitted dealers in all states from 
Maine through Texas and the Caribbean, there will be cases where NMFS 
requests data that is duplicative of some state requirements. NMFS 
feels that implementation of this electronic dealer system, because of 
the efforts to coordinate with states, ACCSP, SAFIS, and other 
electronic reporting systems, should remove some, but not all, of these 
duplicative requirements.
    Comment 41: NMFS should consider electronic logbooks for commercial 
fishing, and NMFS should specify the collections methods being 
considered for recreational data.
    Response: NMFS is currently working on electronic logbooks in some 
fisheries. For instance, in the Northeast region, fishermen can submit 
electronic vessel trip reports (VTRs). HMS fisheries may consider 
electronic logbooks in the future, and the Agency is continually 
working towards more timely data collection from both fishermen and 
dealers. In terms of recreational fishing data, NMFS collects 
recreational catch and effort information through the Marine 
Recreational Information Program (MRIP). MRIP is a new way NMFS is 
counting and reporting marine recreational catch and effort and 
replaces the Marine Recreational Fisheries Statistics Survey, or MRFSS, 
which had been in place since the 1970s. More information on MRIP can 
be found at http://www.countmyfish.noaa.gov/index.html.

Changes From the Proposed Rule (76 FR 37750, June 28, 2011)

    In addition to minor corrections throughout, NMFS has made several 
changes to the proposed rule. These changes are outlined below.
    1. In Sec.  635.2, the definitions of ``first receiver'' was 
removed and ``first receive'' was clarified and revised to mean ``to 
take possession for commercial purpose of any fish or any part thereof 
by purchasing, trading or bartering for it from the fish vessel owner 
or operator or operator once it is offloaded from the vessel, where the 
owner or operator has been issued, or should have been issued, a valid 
permit under this part. First receive does not mean to take possession 
solely for transport.'' In addition, the definition of ``reporting 
week'' was added to mean ``the period of time beginning at 0001 local 
time on Sunday and ending at 2400 hours local time the following 
Saturday.''
    2. Modifications made to Sec.  635.4(g) under the proposed rule 
were removed in the final rule. Specifically, Sec.  635.4(g)(1)(i), 
which stipulated different permitting requirements for Atlantic tunas 
dealers that received Atlantic bluefin, was removed. In addition, Sec.  
635.4(g)(1)(ii), which would have required first receivers of Atlantic 
BAYS tunas to obtain a dealer permits, was removed. Changes to sections 
Sec.  635.4(g)(1)-(3), which stipulated different dealer permit 
requirements for BAYS tunas, sharks, and swordfish in the current 
regulations, respectively, were modified based on public comment. In 
addition, changes were made to maintain consistency with the ``dealer'' 
definition under Sec.  600.10 and changes to the ``first receive'' 
definition under Sec.  635.2 in this final rule.
    3. In Sec.  635.5(b)(1)(i)-(iii), NMFS made various modifications 
and clarifications based, in part, on public comment. Specifically, as 
described above, the reporting frequencies that apply to Atlantic 
swordfish, BAYS tunas, and shark dealers were modified based on public 
comment to satisfy the need for timely landings data while avoiding an 
excessive reporting burden on dealers. In addition, it was clarified 
that dealers must report through a NMFS-approved electronic reporting 
system no later than midnight, local time, of the first Tuesday 
following the end of the reporting week unless the dealer is otherwise 
notified by NMFS, and can make modifications to their dealer reports 
not more than 30 days from when the report is submitted and received by 
NMFS.
    4. NMFS made various changes throughout Sec.  635.31(a) and (c). 
Most were minor changes to the language in order to be consistent with 
the language in other sections of the final rule. Regarding Sec.  
635.31(a)(1)(i), NMFS determined that the proposed change was not 
needed and decided to keep the existing regulatory text. Regarding 
Sec.  635.31(c)(6), this regulatory text was not proposed in the 
proposed rule as it has been implemented in a recent final rule (August 
29, 2011, 76 FR 53652), which was implemented after the publication of 
the proposed rule of this action (June 28, 2011, 76 FR 37550). In this 
final rule, NMFS replaces the word ``purchase'' with ``first receive'' 
to be consistent with the other changes made in this final rule. 
Regarding Sec.  635.31(d)(1), the proposed rule stipulated that 
fishermen could only offload Atlantic swordfish to dealers as all 
entities that first received Atlantic swordfish (i.e., not just 
entities which bought fish from fishermen) would have needed a dealer 
permit under the proposed rule. As a result of public comments, NMFS is 
not making that a requirement in this final rule. As such, NMFS is 
maintaining the existing language in Sec.  635.31(d)(1).
    5. In Sec.  635.71, NMFS simplified paragraph (a)(3). NMFS also 
decided that due, in part, to the changes made as a result of public 
comments, the changes proposed in paragraphs (a)(4), (a)(55), and 
(e)(1) were not needed at this time. Therefore, NMFS kept the existing 
language for paragraphs (a)(4) and (e)(1) and moved the proposed 
paragraph (a)(56) to paragraph (a)(55).

Classification

    The NMFS Assistant Administrator has determined that this final 
action is consistent with the Magnuson-Stevens Act, 2006 Consolidated 
Atlantic HMS Fishery Management Plan (FMP) and its amendments, ATCA, 
and other applicable law.
    This final rule modifies a collection-of-information requirement 
associated with dealer reporting for Atlantic HMS dealers subject to 
the Paperwork Reduction Act (PRA) which has been approved by the Office 
of Management and Budget (OMB) under control number 0648-0040. The 
modifications were approved by OMB on July 31, 2012. The public 
reporting burden is associated with Atlantic HMS dealers having to 
report receipt of Atlantic swordfish, sharks, and BAYS tunas to NMFS 
electronically (15 minutes per positive report and 5 minutes per

[[Page 47313]]

negative report). NMFS will establish a weekly reporting frequency and 
may increase the reporting frequency via another regulatory action in 
the future for all HMS species if more frequent reporting is necessary 
to monitor the available quota. NMFS does not expect to do so in the 
near future for BAYS tunas, sharks, or swordfish.
    Public reporting burden for Atlantic swordfish, sharks, and BAYS 
tunas will be one hour per month (15 minutes per report each week 7x4 
weeks/month) or 12 hours per year. Based on the number of Atlantic 
swordfish, sharks, and tunas dealer permits (that deal with BAYS tunas) 
in 2011 (or 916 total permits), this will result in an estimated total 
annual burden of 10,992 hours.
    Negative reports will require less of a reporting burden as 
negative reports are estimated to only take 5 minutes to complete and 
send to NMFS. Finally, all 916 permit holders affected by this final 
rule are considered respondents.
    Send comments on this or any other aspects of the collection-of-
information to NMFS (see ADDRESSES) and by email to [email protected] 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.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    Ecological impacts, outside of those that have been previously 
analyzed for Atlantic shark dealer reporting requirements in Amendment 
2 to the 2006 Consolidated HMS FMP and categorically excluded for 
Atlantic swordfish and BAYS tunas, are not expected as a result of this 
final rule. This action will not directly affect fishing effort, 
quotas, fishing gear, authorized species, interactions with threatened 
or endangered species, or other relevant parameters. This final rule is 
exempt from the requirement to prepare an Environmental Assessment in 
accordance with NAO 216-6 because it will not have significant, 
additional impacts on the human environment, or any environmental 
consequences that have not been previously analyzed or are 
categorically excluded in accordance with Sections 5.05b and Section 
6.03.c.3(i) of NOAA's Administrative Order (NAO) 216-6. However, social 
and economic impacts are expected as a result of this final action.
    A FRFA was prepared, as required by 5 U.S.C. Section 604 of the 
Regulatory Flexibility Act (RFA). The FRFA incorporates the IRFA, a 
summary of the significant issues raised by the public comments in 
response to the IRFA, and NMFS responses to those comments, and a 
summary of the analyses completed to support the action. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    Section 604(a)(1) of the Regulatory Flexibility Act requires that 
the Agency describe the need for, and objectives of, the final rule. 
The purpose of this final rule is, consistent with the Magnuson-Stevens 
Act and the 2006 Consolidated HMS FMP and its amendments, to aid NMFS 
in monitoring and enforcing fisheries regulations, including those 
implemented at 50 CFR part 635. Specifically, this final action will 
change the current regulations and infrastructure of the Atlantic HMS 
quota-monitoring system by requiring all federally-permitted Atlantic 
HMS dealers to report receipt of Atlantic swordfish, sharks, and BAYS 
tunas to NMFS through an electronic dealer reporting system on a weekly 
basis and, delinquent reports to be submitted by dealers and received 
by NMFS before a dealer could purchase commercially-harvested Atlantic 
swordfish, sharks, and BAYS tunas. These actions are necessary to 
ensure timely and accurate reporting, which is critical for quota 
monitoring and management of these species.
    Section 604(a)(2) requires a summary of the significant issues 
raised by the public comments in response to the Initial Regulatory 
Flexibility Analysis (IRFA) and a statement of any changes made in the 
proposed rule as a result of such comments. The Agency received 
comments concerning the Initial Regulatory Flexibility Analysis stating 
that the Agency's estimate of monthly internet service of $50 per month 
was not appropriate (see comment 35 above). As a result, the estimate 
of monthly internet costs associated with this final action has 
increased to $110 per month, based on public comment. Estimates of the 
economic impacts of compliance with the final regulations have been 
updated in the FRFA and final rule.
    Comments were also received on the delayed implementation date 
discussed in the IRFA and proposed rule (see comment 33 above). The 
Agency proposed a delayed implementation date of 3 months, and the 
public was in support of such a delay. Therefore, NMFS plans to delay 
the implementation of the final action for this rule to provide dealers 
with approximately four to five months to learn about the electronic 
dealer reporting system before its use is required.
    Finally, comments also indicated that it would take dealers 
additional time to submit more frequent dealer reports and that there 
would be additional costs associated with hiring personnel to be in 
compliance with the proposed reporting frequencies (see comments 12, 
16, and 34 above). Based on public comments, NMFS has reconsidered the 
proposed reporting frequencies for Atlantic HMS dealers to simplify 
reporting requirements and satisfy the need for timely landings data 
while avoiding an excessive reporting burden on dealers. NMFS 
recognizes that daily reporting requirements for sharks as preferred in 
the proposed rule would not allow dealers sufficient time to gather 
accurate price information for sharks and could have resulted in a 
large reporting burden on dealers. At the same time, NMFS acknowledges 
that unlike some shark fisheries, Atlantic swordfish and BAYS tunas 
fisheries are currently not quota limited and may not require more 
frequent reporting than the current biweekly reporting. However, NMFS 
notes that other Federal dealer permits currently require weekly 
reporting, including all Northeast Regional Office (NERO)-issued dealer 
permits. Many HMS dealers also possess NERO-issued permits and, 
therefore, are already reporting on a weekly basis. Additionally, many 
fisheries managed by SERO are moving to weekly dealer reporting and 
many HMS dealers also possess permits for these fisheries. Therefore, 
NMFS believes that weekly reporting balances the need for more timely 
landings data and maintains consistency in reporting requirements for 
different dealer permits. In addition, NMFS is integrating the HMS 
electronic reporting requirements into existing electronic reporting 
programs, in part to ease the overall burden on dealers. Thus, NMFS 
feels the final action satisfies the need for timely reporting and 
avoids being overly burdensome on dealers with regard to reporting.
    Under Section 604(a)(3), Federal agencies must provide an estimate 
of the number of small entities to which the rule would apply. The 
Small Business Administration (SBA) standards for a ``small'' versus 
``large'' business entity are entities that have 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. Under these standards, NMFS considers all HMS permit 
holders subject to this rulemaking to be small entities. This

[[Page 47314]]

action would apply to all 916 Federal Atlantic HMS dealer permit 
holders (in 2011), of which 183 had Atlantic shark, 350 had Atlantic 
swordfish, and 383 had Atlantic tunas (bigeye, albacore, yellowfin, and 
skipjack) dealer permits.
    Under Section 604(a)(4), Federal agencies must provide a 
description of the projected reporting, recordkeeping, and other 
compliance requirements of the rule. The final action requires Federal 
Atlantic HMS dealers to report receipt of Atlantic sharks, swordfish, 
and BAYS tunas to NMFS through an electronic reporting system on a 
weekly basis. Under the final rule, the HMS dealer permit will continue 
to require the same application and fees (i.e., $50 to $75) that are 
currently in place. The information collected through the electronic 
dealer system will include additional data fields, including vessel and 
location of catch information; however, many new fields will be auto-
populated or selected from data fields in a drop down menu in the 
electronic system. In addition, failure to report Atlantic sharks, 
swordfish, and BAYS tunas to NMFS within the required reporting 
frequency will result in dealers being ineligible to first receive 
Atlantic sharks, swordfish, and BAYS tunas. This final rule will not 
conflict, duplicate, or overlap with other relevant Federal rules. 
Fishermen, dealers, and managers in these fisheries must comply with a 
number of international agreements, domestic laws, and other FMPs. 
These include, but are not limited to, the MSA, the ATCA, the Marine 
Mammal Protection Act, the Endangered Species Act, the National 
Environmental Policy Act, and the Paperwork Reduction Act. NMFS does 
not believe that the new regulations proposed to be implemented will 
duplicate, overlap, or conflict with any relevant regulations, Federal 
or otherwise.
    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. These impacts are 
discussed below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists 
four general categories of ``significant'' alternatives that will 
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 final rule, consistent with 
the MSA, NMFS cannot exempt small entities or change the reporting 
requirements only for small entities because all of the participants in 
Atlantic HMS fisheries are considered small entities. All federally-
permitted HMS dealers will submit weekly reports of all HMS received. 
Similarly, the application process for the dealer permit will be the 
same as the process that is required under the current regulations. The 
majority of the information required to report in the new reporting 
system will be the same as what is currently required. However, the 
final rule will require federally-permitted dealers to report 
information to NMFS weekly about Atlantic sharks, swordfish, and BAYS 
tunas received, in an electronic format rather than on paper.
    NMFS considered and analyzed four alternatives to ensure more 
timely, efficient, and accurate dealer reporting and subsequent quota 
monitoring of Atlantic HMS. NMFS considered the following alternatives: 
Alternative A1--Status quo; Alternative A2--Establish new flexible 
reporting requirements for all federally-permitted HMS dealers 
effective 30 days after publication of the final rule; Alternative A3--
Establish new flexible reporting requirements for all federally-
permitted HMS dealers and delay implementation; and Alternative A4--
Establish new weekly reporting requirements for all federally-permitted 
HMS dealers and delay implementation.
    Alternative A1, the no action alternative, would maintain existing 
reporting requirements for federally-permitted HMS dealers. There is no 
monetary cost associated with the required reporting as NMFS provides 
pre-paid envelopes for dealers to mail in their reports to the SEFSC. 
However, HMS dealers must renew their open-access dealer permit each 
year, and the total cost associated with obtaining a dealer permit, on 
an annual basis, is between $50 to $75 per dealer, depending on their 
participation in each of the HMS fisheries. With 916 dealers in the HMS 
fishery (as specified in section 2.3), the total annual cost for 
maintaining the dealer permits under the current paper format is from 
$45,800 (916 dealers * $50 for dealer permits) to $68,700 (916 dealers 
* $75 for dealer permits).
    Alternative A2, A3, and A4 would require all federally-permitted 
Atlantic HMS dealers to report receipt of Atlantic sharks, swordfish, 
and BAYS tunas to NMFS through an electronic dealer reporting system. 
As such, all of these alternatives would have similar direct economic 
impacts to dealers in terms of purchasing a computer and/or internet 
service (if they have not already done so) to comply with the final 
electronic reporting measures under alternative A2, A3, and A4. 
According to the Small Business Administration, Office of Advocacy 
(2010) approximately 94 percent of businesses own computers. Therefore, 
NMFS estimates that 861 dealers (916 * 0.94) already have a computer. 
Of businesses with computers, 95 percent or 817 dealers (861 dealers * 
0.95) have Internet service. Using these estimates, approximately 
between 44 (861 - 817 = 44 dealers with computers, but without 
Internet) to 55 (916 - 861 = 55 without computer and Internet) dealers 
would have to purchase computer and/or Internet services under this 
alternative. The total amount of costs associated with dealers 
reporting through the new dealer electronic system is estimated to be 
$58,080 (44 dealers * $1,320 for Internet service) for those dealers 
with a computer, but without Internet service and $106,425 (55 dealers 
* $1,935 for computer and Internet service) for those dealers without a 
computer and Internet service. Therefore, the additional aggregate cost 
for electronic reporting under any of the alternatives is approximately 
$164,505 ($58,080 + $106,425) in the first year. The cumulative cost 
for electronic reporting and permitting would be approximately $210,305 
($164,505 + $45,800) to $233,205 ($164,505 + $68,700) in the first 
year, depending on the number of dealer permits obtained by each 
dealer.
    Alternative A2 and A3 would have increased social and economic 
impacts based on reporting frequency and the requirement that all first 
receivers of Atlantic swordfish, sharks, and BAYS tunas, including 
transporters, obtain dealer permits. The increase in the reporting 
frequency could result in dealers having to hire additional personnel 
to comply with the increase number of dealer reports. The annual burden 
of reporting through the new system would depend on the species under 
alternative A2 and A3. For Atlantic swordfish and BAYS tunas, this 
would be an extra 0.5 hours per month (15 minutes per report each week 
x 4 weeks; dealers are currently required to report to NMFS twice a 
month) or 12 hours per year. Based on the number of Atlantic swordfish 
and tunas dealer permits (that deal with BAYS tunas) in 2011 (or 733 
total permits), this would

[[Page 47315]]

result in an estimated total annual burden of 8,796 hours. If these 
fisheries reached 80 percent of any codified quotas, then the reporting 
burden would increase from weekly to daily reporting for positive or 
negative reports for any of the associated fisheries, however, NMFS 
does not anticipate that this would occur at this time.
    Atlantic sharks dealers would have to report more often while the 
non-sandbar LCS, blacknose sharks, and non-blacknose SCS fishing 
seasons were open. Atlantic shark dealers would spend approximately 7.5 
hours/month reporting to NMFS (15 minutes per report each day x 30 
days; currently dealers spend 0.5 hours reporting each month) while the 
non-sandbar LCS, blacknose sharks, and non-blacknose SCS fishing 
seasons were open, and approximately 1 hour per month (15 minutes per 
report each week x 4 weeks/month) when the fishing seasons for these 
fisheries were closed. In 2010, the non-sandbar LCS, blacknose, or non-
blacknose SCS fisheries were open for 33 weeks. In 2011, however, the 
blacknose and non-blacknose SCS were open all year round or for 52 
weeks. A similar range of season lengths in subsequent years would 
result in 57.75 to 91.00 hours of reporting by the federal shark dealer 
to NMFS while these fisheries were open. However, the non-sandbar LCS, 
blacknose, or non-blacknose SCS fisheries were closed for 20 weeks 
during 2010, which would result in 5 hours of reporting by the federal 
shark dealer to NMFS under similar fishing seasons. Based on the number 
of Atlantic shark dealer permits in 2011 (or 183 total permits), this 
would result in an estimated total annual burden of 11,483 hours.
    In addition, during the comment period on the proposed rule, NMFS 
heard that requiring all first receivers of Atlantic swordfish, sharks, 
and BAYS tunas, including transporters, to obtain dealer permits would 
result in changes to dealer business practices. While the absolute 
number of entities that would be affected by this alternative was not 
quantified, the information provided through public comment indicated 
that there would be negative social and economic impacts by requiring 
all first receivers, including transporters, of Atlantic swordfish, 
sharks, and BAYS tunas product to obtain dealers permits.
    Alternative A4, the final action, will simplify dealer reporting on 
dealers compared to the proposed alternative (i.e., alternative A3), 
and will change the current definition of who is considered an Atlantic 
HMS dealer in order to simplify the regulations and maintain 
consistency with respect to who is considered a first receiver across 
species. In addition, alternative A4 will only allow Atlantic HMS 
dealer to purchase commercially-harvested Atlantic swordfish, sharks, 
and BAYS tunas if the dealer has submitted timely reports to NMFS.
    Under the final action, the cost associated with alternative A4 
would be the additional reporting burden on dealers by requiring weekly 
reporting frequency for Atlantic swordfish, sharks, and BAYS tunas 
dealers. The amount of time it would take dealers to report through the 
electronic system is estimated to be the same amount of time HMS 
dealers currently take to report in a paper format (i.e., 15 minutes 
per report); however, dealers would be reporting twice as frequently as 
they do under the current regulations (i.e., they will be required to 
report weekly instead of twice a month). Thus, for Atlantic swordfish, 
sharks, and BAYS tunas, dealers would spend one hour per month (15 
minutes per report each week x 4 weeks/month) or 12 hours per year 
reporting to NMFS. Based on the number of Atlantic swordfish, shark, 
and tuna dealer permits (that deal with BAYS tunas) in 2011 (or 916 
total permits), this would result in an estimated total annual burden 
of 10,992 hours. Negative reports would require less of a reporting 
burden as negative reports are estimated to only take 5 minutes to 
complete and submit to NMFS. NMFS assumes that this reduction in the 
proposed reporting frequency should balance the need for timely data in 
quota limited fisheries while minimizing reporting burdens on HMS 
dealers.
    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. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of the 
final rule are available from the HMS Management Division, and the 
guide (i.e., permit holder letter) will be sent to all HMS dealers. The 
guide and this final rule will be available upon request.

List of Subjects in 50 CFR Part 635

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

    Dated: August 3, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and 
Duties of the 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

0
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.

0
2. In Sec.  635.2, the definition for ``First receiver'' is removed and 
the definitions for ``First receive'' and ``Reporting week'' are added 
in alphabetical order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    First receive means to take possession for commercial purposes of 
any fish or any part thereof by purchasing, trading or bartering for it 
from the fishing vessel owner or operator once it is offloaded, where 
the vessel has been issued, or should have been issued, a valid permit 
under this part. First receive does not mean to take possession solely 
for transport.
* * * * *
    Reporting week means the period of time beginning at 0001 local 
time on Sunday and ending at 2400 hours local time the following 
Saturday.
* * * * *

0
3. In Sec.  635.4, paragraph (g)(1), (g)(2) and (g)(3) are revised to 
read as follows:


Sec.  635.4  Permit and fees.

* * * * *
    (g) * * *
    (1) Atlantic tunas. A dealer, as defined under Sec.  600.10 of this 
chapter, must possess a valid federal Atlantic tunas dealer permit to 
purchase, trade, or barter any Atlantic tunas.
    (2) Shark. A dealer, as defined in Sec.  600.10 of this chapter, 
must possess a valid federal Atlantic shark dealer permit to purchase, 
trade, or barter any Atlantic shark listed in Table 1 of Appendix A of 
this part.
    (3) Swordfish. A dealer, as defined under Sec.  600.10 of this 
chapter, must possess a valid federal Atlantic swordfish dealer permit 
to purchase, trade, or barter any Atlantic swordfish.
* * * * *

0
4. In Sec.  635.5, paragraph (b)(1)(iv) is removed and paragraphs 
(b)(1)(i)

[[Page 47316]]

through (iii) are revised to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (1) * * *
    (i) Dealers that have been issued or should have been issued a 
Federal Atlantic BAYS tunas, swordfish, and/or shark dealer permit 
under Sec.  635.4 must submit to NMFS all reports required under this 
section within the timeframe specified under paragraph (b)(1)(ii) of 
this section. BAYS tunas, swordfish, and sharks commercially-harvested 
by a vessel can only be first received by dealers that have been issued 
or should have been issued an Atlantic tunas, swordfish, and/or shark 
dealer permit under Sec.  635.4. All federal Atlantic HMS dealers must 
provide a detailed report of all fish first received to NMFS within the 
period specified under paragraph (b)(1)(ii) of this section. All 
reports must be species-specific and must include the required 
information about all, swordfish, and sharks received by the dealer, 
including the required vessel information, regardless of where the fish 
were harvested or whether the harvesting vessel is permitted under 
Sec.  635.4. For sharks, each report must specify the total weight of 
the carcass(es) without the fins for each species, and the total fin 
weight by grade for all sharks combined. Dealers are also required to 
submit ``negative'' reports, indicating no receipt of any species, 
within the timeframe specified under paragraph (b)(1)(ii) of this 
section if they did not first receive any fish during the reporting 
period . As stated in Sec.  635.4(a)(6), failure to comply with these 
recordkeeping and reporting requirements may result in existing dealer 
permit(s) being revoked, suspended, or modified, and in the denial of 
any permit applications.
    (ii) Reports of any Atlantic BAYS tunas, sharks, and/or swordfish 
first received by dealers from a vessel must be submitted 
electronically on a weekly basis through a NMFS-approved electronic 
reporting system by the dealer and received by NMFS no later than 
midnight, local time, of the first Tuesday following the end of the 
reporting week unless the dealer is otherwise notified by NMFS. Reports 
of BAYS tunas, sharks, and/or swordfish may be modified for not more 
than 30 days from when the dealer report is submitted to NMFS. NMFS 
will require BAYS tunas, swordfish, and shark dealers to submit dealer 
reports to NMFS on a weekly basis. Atlantic BAYS tunas, sharks, and 
swordfish dealers must submit electronic negative reports stating that 
no BAYS tunas, sharks, and/or swordfish were first received when they 
received no fish of these species, and no parts thereof, during the 
reporting period. Reporting requirements for bluefin tuna are specified 
in paragraph (b)(2) of this section. The negative reporting requirement 
does not apply for bluefin tuna.
    (iii) Atlantic HMS dealers are not authorized to first receive 
Atlantic swordfish, sharks, and/or BAYS tunas if the required reports 
have not been submitted and received by NMFS according to reporting 
requirements under this section. Delinquent reports automatically 
result in an Atlantic HMS dealer becoming ineligible to first receive 
Atlantic swordfish, sharks, and/or BAYS tunas. Atlantic HMS dealers who 
become ineligible to first receive Atlantic swordfish, sharks, and/or 
BAYS tunas due to delinquent reports are authorized to first receive 
Atlantic swordfish, sharks, and/or BAYS tunas only once all required 
and delinquent reports have been completed, submitted by the dealer, 
and received by NMFS.
* * * * *

0
5. In Sec.  635.8, paragraphs (b)(4) through (6), and paragraph (c)(4) 
are revised to read as follows:


Sec.  635.8  Workshops.

* * * * *
    (b) * * *
    (4) Only dealers issued a valid shark dealer permit may send a 
proxy to the Atlantic shark identification workshops. If a dealer opts 
to send a proxy, the dealer must designate at least one proxy from each 
place of business listed on the dealer permit, issued pursuant to Sec.  
635.4(g)(2), which first receives Atlantic shark. The proxy must be a 
person who is currently employed by a place of business covered by the 
dealer's permit; is a primary participant in the identification, 
weighing, and/or first receipt of fish as they are received; and fills 
out dealer reports as required under Sec.  635.5. Only one certificate 
will be issued to each proxy. If a proxy is no longer employed by a 
place of business covered by the dealer's permit, the dealer or another 
proxy must be certified as having completed a workshop pursuant to this 
section. At least one individual from each place of business listed on 
the dealer permit which first receives Atlantic sharks must possess a 
valid Atlantic shark identification workshop certificate.
    (5) An Atlantic shark dealer issued or required to be issued a 
shark dealer permit pursuant to Sec.  635.4(g)(2) must possess and make 
available for inspection a valid dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy at 
each place of business listed on the dealer permit which first receives 
Atlantic sharks. For the purposes of this part, trucks or other 
conveyances of a dealer's place of business are considered to be 
extensions of a dealer's place of business and must possess a copy of a 
valid dealer or proxy Atlantic shark identification workshop 
certificate issued to a place of business covered by the dealer permit. 
A copy of a valid Atlantic shark identification workshop certificate 
must be included in the dealer's application package to obtain or renew 
an Atlantic shark dealer permit. If multiple businesses are authorized 
to first receive Atlantic sharks under the Atlantic shark dealer's 
permit, a copy of the Atlantic shark identification workshop 
certificate for each place of business listed on the Atlantic shark 
dealer permit which first receives Atlantic sharks must be included in 
the Atlantic shark dealer permit renewal application package.
    (6) Persons holding an expired Atlantic shark dealer permit and 
persons who intend to apply for a new Atlantic shark dealer permit will 
be issued a participant certificate in their name upon successful 
completion of the Atlantic shark identification workshop. A participant 
certificate issued to such persons may be used only to apply for an 
Atlantic shark dealer permit. Pursuant to Sec.  635.8(c)(4), an 
Atlantic shark dealer may not first receive Atlantic shark without a 
valid dealer or proxy Atlantic shark identification workshop 
certificate issued to the dealer or proxy. After an Atlantic shark 
dealer permit is issued to a person using an Atlantic shark 
identification workshop participant certificate, such person may obtain 
an Atlantic shark identification workshop dealer certificate for each 
location which first receives Atlantic sharks by contacting NMFS at an 
address designated by NMFS.
* * * * *
    (c) * * *
    (4) An Atlantic shark dealer may not first receive Atlantic shark 
without a valid dealer or proxy Atlantic shark identification workshop 
certificate issued to the dealer or proxy. A valid dealer or proxy 
Atlantic shark identification workshop certificate issued to the dealer 
or proxy must be maintained on the premises of each place of business 
listed on the dealer permit which first receives Atlantic sharks. An 
Atlantic shark dealer may not renew a Federal dealer permit issued 
pursuant to Sec.  635.4(g)(2) unless a

[[Page 47317]]

copy of a valid dealer or proxy Atlantic shark identification workshop 
certificate issued to the dealer or proxy has been submitted with the 
permit renewal application. If the dealer is not certified and opts to 
send a proxy or proxies to a workshop, the dealer must submit a copy of 
a valid proxy certificate for each place of business listed on the 
dealer permit which first receives Atlantic sharks.
* * * * *

0
6. In Sec.  635.27, paragraph (b)(1)(iv)(C) is revised to read as 
follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (iv) * * *
    (C) Except for non-sandbar LCS landed by vessels issued a valid 
shark research permit with a NMFS-approved observer onboard, any non-
sandbar LCS reported as harvested in the Florida Keys areas or in the 
Gulf of Mexico will be counted against the non-sandbar LCS Gulf of 
Mexico regional quota. Except for non-sandbar LCS landed by vessels 
issued a valid shark research permit with a NMFS-approved observer 
onboard, any non-sandbar LCS reported as harvested in the Atlantic 
region will be counted against the non-sandbar LCS Atlantic regional 
quota. Non-sandbar LCS landed by a vessel issued a valid shark research 
permit with a NMFS-approved observer onboard will be counted against 
the non-sandbar LCS research fishery quota using scientific observer 
reports.
* * * * *

0
7. In Sec.  635.28, paragraph (b)(4) is revised to read as follows:


Sec.  635.28  Closures.

* * * * *
    (b) * * *
    (4) When the fishery for a shark species group and/or region is 
closed, a fishing vessel, issued a Federal Atlantic commercial shark 
permit pursuant to Sec.  635.4, may not possess or sell a shark of that 
species group and/or region, except under the conditions specified in 
Sec.  635.22(a) and (c) or if the vessel possesses a valid shark 
research permit under Sec.  635.32 and a NMFS-approved observer is on 
board. During the closure period, an Atlantic shark dealer, issued a 
permit pursuant to Sec.  635.4, may not first receive a shark of that 
species group and/or region from a vessel issued a Federal Atlantic 
commercial shark permit, except that a permitted Atlantic shark dealer 
or processor may possess sharks that were harvested, offloaded, and 
sold, traded, or bartered, prior to the effective date of the closure 
and were held in storage. Under a closure for a shark species group, an 
Atlantic shark dealer, issued a permit pursuant to Sec.  635.4 may, in 
accordance with State regulations, purchase, trade for, barter for, or 
receive a shark of that species group if the sharks were harvested, 
offloaded, and sold, traded, or bartered from a vessel that fishes only 
in State waters and that has not been issued a federal Atlantic 
commercial shark permit, HMS Angling permit, or HMS Charter/Headboat 
permit pursuant to Sec.  635.4. Additionally, under a closure for a 
shark species group and/or regional closure, an Atlantic shark dealer, 
issued a permit pursuant to Sec.  635.4, may first receive a shark of 
that species group if the sharks were harvested, offloaded, and sold, 
traded, or bartered from a vessel issued a valid shark research permit 
(per Sec.  635.32) that had a NMFS-approved observer on board during 
the trip sharks were collected.
* * * * *

0
8. In Sec.  635.31, paragraphs (a)(2)(i) and (a)(2)(ii) are added and 
paragraphs (c)(2), (c)(4), (c)(5), (c)(6), (d)(1), and (d)(2) are 
revised to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (2) * * *
    (i) Dealers may purchase Atlantic bluefin tuna only from a vessel 
that has a valid Federal commercial permit for Atlantic tunas issued 
under this part in the appropriate category.
    (ii) Dealers may first receive BAYS tunas only if they have 
submitted reports to NMFS according to reporting requirements of 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.
* * * * *
    (c) * * *
    (2) Persons that own or operate a vessel for which a valid Federal 
Atlantic commercial shark permit has been issued and on which a shark 
from the management unit is possessed, may sell, barter or trade such 
shark only to a dealer that has a valid permit for shark issued under 
this part.
* * * * *
    (4) Only dealers that have a valid a Federal Atlantic shark dealer 
permit and who have submitted reports to NMFS according to reporting 
requirements of Sec.  635.5(b)(1)(ii) may first receive a shark from an 
owner or operator of a vessel that has, or is required to have, a valid 
federal Atlantic commercial shark permit issued under this part, except 
that Atlantic shark dealers may purchase, trade for, barter for, or 
receive a shark from an owner or operator of a vessel that does not 
have a federal Atlantic commercial shark permit if that vessel fishes 
exclusively in state waters. Atlantic shark dealers may first receive a 
sandbar shark only from an owner or operator of a vessel who has a 
valid shark research permit and who had a NMFS-approved observer on 
board the vessel for the trip in which the sandbar shark was collected. 
Atlantic shark dealers may first receive a shark from an owner or 
operator of a fishing vessel that has a permit issued under this part 
only when the fishery for that species group and/or region has not been 
closed, as specified in Sec.  635.28(b).
    (5) An Atlantic shark dealer issued a permit under this part may 
first receive shark fins from an owner or operator of a fishing vessel 
only if the shark fins were harvested in accordance with the 
regulations found at part 600, subpart N, of this chapter and in Sec.  
635.30(c).
    (6) A dealer issued a permit under this part may not first receive 
oceanic whitetip sharks or scalloped, smooth, or great hammerhead 
sharks from an owner or operator of a fishing vessel with pelagic 
longline gear on board, or from the owner of a fishing vessel issued 
both a HMS Charter/Headboat permit and a commercial shark permit when 
tuna, swordfish or billfish are on board the vessel, offloaded from the 
vessel, or being offloaded from the vessel.
    (d) * * *
    (1) Persons that own or operate a vessel on which a swordfish in or 
from the Atlantic Ocean is possessed may sell or trade 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.
    (2) Atlantic swordfish dealers may first receive a swordfish 
harvested from the Atlantic Ocean only from an owner or operator of a 
fishing vessel that has a valid commercial permit for swordfish issued 
under this part and only if the dealer has submitted reports to NMFS 
according to reporting requirements of Sec.  635.5(b)(1)(ii).

0
9. In Sec.  635.71, paragraph (a)(55) is added and paragraphs (a)(3), 
(d)(11), (d)(14), and (d)(16) are revised to read as follows:


Sec.  635.71  Prohibitions.

    (a) * * *
    (3) Purchase, receive, or transfer or attempt to purchase, receive, 
or transfer, for commercial purposes, Atlantic

[[Page 47318]]

bluefin tuna landed by owners of vessels not permitted to do so under 
Sec.  635.4, or purchase, receive, or transfer, or attempt to purchase, 
receive, or transfer Atlantic bluefin tuna without the appropriate 
valid Federal Atlantic tunas dealer permit issued under Sec.  635.4. 
Purchase, receive, or transfer or attempt to purchase, receive, or 
transfer, for commercial purposes, other than solely for transport, any 
BAYS tunas, swordfish, or sharks landed by owners of vessels not 
permitted to do so under Sec.  635.4, or purchase, receive, or 
transfer, or attempt to purchase, receive, or transfer, for commercial 
purposes, other than solely for transport, any BAYS tunas, swordfish, 
or sharks without the appropriate valid dealer permit issued under 
Sec.  635.4 or submission of reports by dealers to NMFS according to 
reporting requirements specified in Sec.  635.5. This prohibition does 
not apply to a shark harvested from a vessel that has not been issued a 
permit under this part and that fishes exclusively within the waters 
under the jurisdiction of any state.
* * * * *
    (55) Fail to electronically submit an Atlantic HMS dealer report 
through the HMS electronic dealer reporting system to report BAYS 
tunas, swordfish, and sharks to NMFS in accordance with Sec.  635.5, if 
issued, or required to be issued, a Federal Atlantic HMS dealer permit 
pursuant to Sec.  635.4.
* * * * *
    (d) * * *
    (11) First receive or attempt to first receive Atlantic sharks 
without a valid Federal Atlantic shark dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy or 
fail to be certified for completion of a NMFS Atlantic shark 
identification workshop in violation of Sec.  635.8.
* * * * *
    (14) First receive or attempt to first receive Atlantic sharks 
without making available for inspection, at each of the dealer's places 
of business listed on the dealer permit which first receives Atlantic 
sharks, an original, valid dealer or proxy Atlantic shark 
identification workshop certificate issued by NMFS to the dealer or 
proxy in violation of Sec.  635.8(b), except that trucks or other 
conveyances of the business must possess a copy of such certificate.
* * * * *
    (16) First receive or attempt to first receive a shark or sharks or 
part of a shark or sharks landed in excess of the retention limits 
specified in Sec.  635.24(a).
* * * * *
[FR Doc. 2012-19457 Filed 8-7-12; 8:45 am]
BILLING CODE 3510-22-P