[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Rules and Regulations]
[Pages 59842-59852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24136]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 080603729-2454-02]
RIN 0648-AW83


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

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

ACTION: Final rule.

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SUMMARY: This fishery management plan (FMP) amendment addresses 
Atlantic highly migratory species (HMS) fishery management measures in 
the U.S. Caribbean territories including Puerto Rico and the U.S. 
Virgin Islands. There are substantial differences between some segments 
of the U.S. Caribbean HMS fisheries and the HMS fisheries that occur 
off the mainland of the United States, including: Limited fishing 
permit and dealer permit possession; smaller vessels; limited 
availability of processing and cold storage facilities; shorter trips; 
limited profit margins; and high local consumption of catches. These 
differences create an awkward fit between current federal HMS fishery 
regulations and the traditional operation of small-scale Caribbean HMS 
fisheries, and some small-scale commercial fishermen in the Caribbean 
may not be currently operating consistently with HMS fishing and dealer 
reporting requirements. NMFS is implementing management measures 
through this rulemaking that amend the HMS fishery management 
regulations in the U.S. Caribbean territories of Puerto Rico and the 
U.S. Virgin Islands to better manage the traditional small-scale 
commercial HMS fishing fleet in the U.S. Caribbean Region, enhance 
fishing opportunities and improve profits for the fleet, and to provide 
us with an improved capability to monitor and sustainably manage those 
fisheries. This final rule creates an HMS Commercial Caribbean Small 
Boat (CCSB) permit, which allows fishing for and sale of bigeye, 
albacore, yellowfin, and skipjack (BAYS) tunas, Atlantic swordfish, and 
Atlantic sharks within local U.S. Caribbean markets. Management 
measures under the CCSB permit include specific species authorizations 
and retention limits, reporting requirement modifications, specific 
gear authorizations, vessel size restrictions, and mandatory workshop 
training. Additionally, NMFS stipulates that the CCSB permit cannot be 
held in combination with any other HMS permit.

DATES: Effective on January 2, 2013.

ADDRESSES: Copies of the supporting documents-including the 
Environmental Assessment, Regulatory Impact Review, Final Regulatory 
Flexibility Analysis, small entity compliance guide, and the 2006 
Consolidated Atlantic HMS FMP are available for download from the HMS 
Web site at http://www.nmfs.noaa.gov/sfa/hms/or upon request from the 
Atlantic HMS Management Division at 1315 East-West Highway, Silver 
Spring, MD 20910. Written comments regarding the burden-hour estimates 
or other aspects of the collection-of-information requirements 
contained in this final rule may be submitted to the Atlantic HMS 
Management Division (see above), by email to [email protected], or by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Randy Blankinship, Rick Pearson, or 
Katie Davis by phone at 727-824-5399 or Delisse Ortiz by phone at 301-
427-8503.

SUPPLEMENTARY INFORMATION: Atlantic tunas and swordfish are managed 
under the dual authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) and the Atlantic Tuna 
Conventions Act (ATCA), which authorizes the Secretary of Commerce (the 
Secretary) to promulgate regulations as may be necessary and 
appropriate to implement recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT). Federal 
Atlantic shark fisheries are managed under the authority of the 
Magnuson-Stevens Act. The authority to issue regulations under the 
Magnuson-Stevens Act and ATCA has been delegated from the Secretary to 
the Assistant Administrator for Fisheries, NOAA. On May 28, 1999, NMFS 
published in the Federal Register (64 FR 29090) final regulations, 
effective July 1, 1999, implementing the Fishery Management Plan for 
Atlantic Tunas,

[[Page 59843]]

Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in 
the Federal Register (71 FR 58058) final regulations, effective 
November 1, 2006, implementing the 2006 Consolidated HMS FMP, which 
details the management measures for Atlantic HMS fisheries, including 
the HMS handgear fishery. The implementing regulations for the 
Consolidated HMS FMP and its amendments for Atlantic HMS are at 50 CFR 
part 635.

Background

    On March 16, 2012, NMFS published a proposed rule (77 CFR 6455) in 
the Federal Register to modify the federal HMS fishery regulations for 
the U.S. Caribbean Region. This rule finalizes the proposed management 
measures in the March 16, 2012 Proposed Rule. The purpose of this 
amendment is to enact HMS management measures that better correspond 
with the traditional operation of the small boat fishing fleet in the 
U.S. Caribbean Region and to provide NMFS with an improved capability 
to monitor and sustainably manage those fisheries.
    The specific objectives for this action are to:
     Increase participation in the HMS Federal fishery 
management program in the U.S. Caribbean Region;
     Expand regional HMS permit availability and increase 
permitting program awareness, participation, and compliance in the U.S. 
Caribbean Region;
     Improve regional HMS catch and fishing effort data;
     Examine and implement regionally tailored HMS management 
strategies, as appropriate;
     Provide targeted training and outreach to HMS fishery 
participants; and
     Improve NMFS' capability to monitor and sustainably manage 
U.S. Caribbean HMS fisheries.
    NMFS will issue the new CCSB permit from its Southeast Regional 
Permit Office pursuant to this final rule and other applicable 
provisions of 50 CFR part 635. Application procedures will be similar 
to those used for other fishing permits issued by the Southeast 
Regional Permit Office.
    A summary of the history and impacts of this action is provided in 
the proposed rule (77 CFR 6455, March 16, 2012) and environmental 
assessment, and those details are not repeated here. A more complete 
summary of Atlantic HMS management can be found in the 2006 
Consolidated HMS FMP, the annual HMS Stock Assessment and Fishery 
Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/. A brief summary of the actions of this final rule can be found 
below.
    This final rule creates the open access HMS CCSB permit, which 
allows holders to fish for and sell BAYS tunas, swordfish, and sharks 
in the U.S. Caribbean Region. The CCSB permit authorizes the possession 
and use of rod and reel, handline, harpoon, bandit gear, green-stick 
gear, and buoy gear. The vessels eligible for a CCSB permit are those 
45 feet or less in length overall (LOA). The CCSB permit is only valid 
for fishing and sales in the U.S. Caribbean Region, and may not be held 
in combination with any other HMS vessel permit. CCSB permit holders 
are required to physically possess their permit, or a copy of their 
permit, at all times during the harvest, retention, landing and sale of 
HMS.
    Landings data from the CCSB permit will be collected through 
cooperation with NMFS and existing territorial government fisheries 
data collection programs, as specified by those programs. The 
individual territorial governments will be responsible for supplying 
these data to the NMFS Southeast Fisheries Science Center and meeting 
requirements determined to be appropriate by NMFS.
    The CCSB permit is a commercial-only permit and, as such, does not 
authorize the retention of billfish. Rod and reel, handline, harpoon, 
bandit, green-stick, and buoy gears are authorized for the harvest of 
BAYS tunas; rod and reel, handline, harpoon, bandit, and buoy gears are 
authorized for the harvest of swordfish; and rod and reel, handline, 
and bandit gears are authorized for the harvest of sharks.
    Initial retention limits under the CCSB permit are set at 10 BAYS 
per vessel per trip, 2 swordfish per vessel per trip, and 0 sharks per 
vessel per trip. Trip limits may be adjusted in the future through the 
framework procedures codified at Sec.  635.34(b). For BAYS and 
swordfish, the current size limits and landing restrictions at 
Sec. Sec.  635.20 and 635.30, respectively, apply. For sharks, there 
are no size limits, as there is no current Federal commercial shark 
size limit; however, current landing restrictions at Sec.  635.30, such 
as ``fins attached'' requirements, apply. Size limits and landing 
restrictions would be considered as appropriate under future rulemaking 
if NMFS were to increase the retention limit above zero fish.
    NMFS considered four alternatives regarding HMS fisheries 
management in the Caribbean Region. The alternatives considered 
included various combinations of measures ranging from maintaining the 
status quo to alternative permit specifications on retention limits, 
vessel sizes, and additional restrictions. A description of the 
alternatives was provided in the proposed rule and is not repeated 
here.
    If shark trip limits are set above zero in a future rulemaking, 
applicants for a CCSB permit will be required to complete a NMFS 
Atlantic Shark Identification Workshop and submit a copy of a valid 
workshop certificate with their permit application. Additionally, NMFS 
may require CCSB permit holders to possess a copy of this certificate 
at every point of shark sale. NMFS would conduct rulemaking to 
implement these requirements through the framework procedures at Sec.  
635.34(b) at the time that the shark trip limits are adjusted.

Comments and Responses

    During the proposed rule stage, NMFS received three written 
comments from the public. NMFS also received comments from the Atlantic 
HMS Advisory Panel and heard additional comments from constituents who 
attended the six public hearings held in Puerto Rico, St. Croix, and 
St. Thomas. A summary of the comments received on the proposed rule 
during the public comment period is provided below with NMFS' response. 
All written comments submitted during the comment period can be found 
at http://www.regulations.gov/ by searching for RIN 0648-AW83.
    Comment 1: NMFS should implement a new CCSB permit for the U.S. 
Caribbean that authorizes the harvest of fish with the gears and 
retention limits specified in the preferred alternative. There are 
substantial differences between segments of the HMS fishery in the 
Caribbean and the rest of the eastern United States due to limited 
fishing permits, limited dealer permits, limited profit margins, and 
markets based on fishermen selling fish directly to the public. These 
characteristics show that this is a small-scale fishery and should be 
treated differently.
    Response: As reflected in the proposed and final rules and 
environmental assessment, NMFS recognizes that there are substantial 
differences between some segments of the HMS fisheries that occur in 
the U.S. Caribbean and those that occur off the mainland of the United 
States, including, but not limited to: Few HMS fishing and dealer 
permits; smaller vessels; limited availability of processing and cold 
storage facilities; shorter trips; limited profit margins; and high 
local consumption of catches. For these reasons, consistent with the 
commenter's observations, NMFS has

[[Page 59844]]

created a new permit for this small-scale fishery.
    Comment 2: Reporting of commercial fishing activity under the CCSB 
permit through territorial commercial data collection programs will 
work well because those programs better fit the markets on the islands 
where fish are sold directly to the public and not to dealers.
    Response: A goal of this rulemaking is improving reporting of 
commercial fishing activity under the CCSB permit through territorial 
commercial data collection programs. NMFS recognizes that in fish 
markets on the islands of the U.S. Caribbean fishermen often sell fish 
directly to the public. Recent efforts to improve commercial fisheries 
data collection in the U.S. Caribbean have been made by the territorial 
governments of Puerto Rico and the U.S. Virgin Islands, working in 
cooperation with NMFS, to better accommodate the practices in these 
island markets. Such territorial data collection improvements will be 
utilized to gather data from fishing trips by vessel owners issued the 
CCSB permit. NMFS agrees that this system should work well with the 
island markets, but will monitor the program to continue to look for 
ways to further improve reporting in the region.
    Comment 3: NMFS should require vessel owners to possess territorial 
government-issued commercial fishing licenses as a pre-requisite for 
obtaining the CCSB permit. Additionally, territorial commercial 
fisheries requirements must be met in order to sell fish in the U.S. 
Virgin Islands and Puerto Rico even if a fisherman holds a new HMS CCSB 
permit. These territorial requirements include residency requirements 
to hold a territorial commercial fishing license and reporting of 
fisheries landings through territorial commercial fisheries reporting 
programs.
    Response: Fishermen operating from and/or landing fish in Puerto 
Rico or the U.S. Virgin Islands must abide by applicable territorial 
regulations, including any residency or permitting requirements of that 
territory. However, NMFS does not require vessel owners to possess 
territorial government-issued commercial fishing licenses to obtain the 
federal CCSB permit, because the provisions of the territorial permit, 
currently or in the future, may not be compatible with federal 
management requirements. An owner of a vessel with a valid CCSB permit 
or any other permit issued pursuant to 50 CFR part 635 must agree, as a 
condition of such permit, to abide by the requirements of 50 CFR part 
635 without regard to where the vessel fishes. However, when a vessel 
fishes within the waters of a territory or state that has more 
restrictive regulations pertaining to Atlantic HMS, persons aboard the 
vessel must abide by the territory's or state's more restrictive 
regulations.
    Comment 4: The initial retention limit for BAYS tunas should be 
more than 10 fish because fishermen sometimes catch more than 10 
skipjack and yellowfin tunas on a trip. Also, a larger retention limit 
may be needed on extended trips to the islands off Puerto Rico, such as 
Isla Mona and Desecheo, where tunas may be caught over a period of 
three days, but cannot be landed due to the distances between islands.
    Response: NMFS sets the initial retention limit for BAYS tunas 
under the CCSB permit at 10 fish because information obtained during 
public scoping and during inquiries of federal enforcement agents in 
the U.S. Caribbean indicated that fishing trips using handgear (under 
an Atlantic Tunas General, HMS Charter/Headboat, or HMS Angling permit) 
rarely land more than 10 yellowfin tunas. Under the preferred 
alternative, NMFS analyzed a range in the number of BAYS tunas that may 
be retained, from zero to 24 fish. NMFS may increase or decrease the 
retention limit in a future rulemaking as necessary while considering 
the status of BAYS tuna populations and management needs. Improvements 
in data collection anticipated from this action will enable NMFS to 
better characterize the fishery, including better understanding the 
nature of extended fishing trips, and adjust management measures in 
order to better meet the needs of the commercial small boat HMS fishery 
in the U.S. Caribbean while sustainably managing those fisheries.
    Comment 5: The retention limit for sharks under a new HMS CCSB 
permit should be set above zero so that some shark landings can occur 
in federal waters and data can be collected from those landings to 
supply stock assessments.
    Response: NMFS disagrees that shark retention limits under the CCSB 
permit should be initially set above zero because several shark stocks 
are overfished and/or overfishing is occurring across their range, 
which for most shark species extends beyond the U.S. Caribbean. 
Additional fishing effort on sharks in the Caribbean that may occur if 
the retention limit is initially set above zero may further deplete 
shark populations. Data collection to supply shark stock assessments 
may occur under the existing Atlantic HMS exempted fishing permit and 
scientific research permit program. In the future, as shark populations 
recover and can be sustained under increased fishing effort, shark 
retention limits for the CCSB permit may be increased.
    Comment 6: When shark identification workshops are held in the 
Caribbean, the curriculum should include tuna identification in order 
to help clarify the use of multiple names for the same tuna species.
    Response: In the shark identification workshop curriculum, NMFS 
includes educational information about various topics that are related 
to Atlantic HMS fisheries. When future shark identification, or other, 
workshops are held in the U.S. Caribbean, NMFS will consider including 
tuna identification information as well.
    Comment 7: The CCSB permit should also allow recreational fishing 
for billfish.
    Response: The purpose of the CCSB permit is to better meet the 
needs of the commercial small boat HMS fishery in the U.S. Caribbean, 
which are not specifically addressed under existing regulations, and 
not to exempt fishermen from any of the federal regulations. Current 
regulations prohibit the retention of Atlantic billfish onboard 
commercially permitted vessels in order to meet the goals of the 
rebuilding program established by ICCAT for overfished Atlantic 
billfish populations. As such, NMFS will not allow the retention of 
Atlantic billfish onboard commercially permitted vessels as this fails 
to meet the goals set out by the ICCAT rebuilding plan.
    Comment 8: The allowance of 35 buoys per vessel per trip under the 
CCSB permit is too many for the small boat Caribbean commercial fishery 
for tunas. Six total buoys per vessel per trip with one hook per buoy 
is the maximum amount of gear needed.
    Response: Vessels may use fewer buoys than the maximum amount 
allowable under current regulations for the swordfish buoy gear 
fishery, which allows for the use of up to 35 buoys per vessel per 
trip. NMFS does not anticipate that the allowance of up to 35 buoys per 
vessel per trip will cause an excessive amount of fishing pressure on 
swordfish and BAYS tunas. The allowance of 35 buoys maintains 
consistency with existing regulations in the commercial swordfish 
handgear fishery and provides flexibility for CCSB permit holders to 
use up to 35 buoys.
    Comment 9: Implementing Amendment 4 in order to avoid an awkward 
fit between current federal HMS fishery regulations and the traditional 
operation of Caribbean fisheries is not a sound basis for exempting any 
fishing segment from

[[Page 59845]]

compliance with U.S. regulations. Efforts should be made to increase 
compliance with existing federal regulations for HMS.
    Response: The CCSB permit and related fisheries regulations in this 
final rule do not exempt fishing segments from regulation. The specific 
provisions in this rule are warranted to implement management measures 
specific to the unique characteristics of the small-boat commercial HMS 
fishery in the U.S. Caribbean Region. The purpose of this action is to 
better manage the traditional HMS small boat commercial fishing fleet 
in the U.S. Caribbean Region, enhance fishing opportunities, improve 
profits for the fleet, and provide NMFS with an improved capability to 
monitor and sustainably manage the fishery. During Amendment 4 pre-
scoping, scoping, and HMS Advisory Panel meetings, NMFS received 
numerous comments that described the unique characteristics of the 
Caribbean region and that supported the purpose of the proposed rule. 
NMFS and the U.S. Coast Guard continue to enforce all fisheries 
regulations in the U.S. Caribbean and enlist assistance from 
territorial governments through joint enforcement agreements. On an 
ongoing basis, NMFS will review fisheries regulations to see if 
modifications are needed that would better meet management objectives 
and make those modifications, including regional considerations, as 
warranted.
    Comment 10: NMFS should increase education programs to permitted 
dealers in the U.S. Caribbean, thus improving the means for monitoring 
and management, rather than legitimizing failure to comply with current 
federal regulations.
    Response: NMFS has mass-produced and distributed outreach 
documents, including Caribbean HMS identification guides and Caribbean 
HMS outreach brochures summarizing the regulations, to fishermen and 
other constituents throughout the U.S. Caribbean Region (both in 
Spanish and English). With Amendment 4, NMFS is not exempting fishermen 
in any region from federal regulations; rather, NMFS is modifying 
fishery regulations under the 2006 Consolidated HMS FMP to better meet 
management objectives and local economic and fishing practice 
realities, thus encouraging greater regulatory compliance.
    Comment 11: Vessel length of 45 ft LOA or less is not a good 
distinguishing characteristic for small boats in the U.S. Caribbean 
region, especially if the vessels are supposed to be ``pangas.'' A true 
``panga'' ranges from 18 to 28 ft LOA. Preferred alternative 3 should 
limit vessels eligible for the CCSB permit to no greater than 30 ft LOA 
if the amendment is targeting traditional fisheries, and especially if 
the boats are supposed to be ``pangas.''
    Response: The U.S. Caribbean HMS fishery is mostly an opportunistic 
small-scale fishery, lacking any vessels larger than 45 ft LOA. The 
requirement that vessels eligible for a CCSB permit be less than or 
equal to 45 ft LOA was developed in response to comments from the U.S. 
Virgin Islands territorial government during pre-scoping. The U.S. 
Virgin Islands preferred that HMS regulations not encourage the 
movement of new commercial fishing vessels to the U.S. Virgin Islands 
that might, in time, compete with existing small boat commercial 
fishermen there. NMFS balanced this comment with the need to be as 
inclusive as possible of commercial fishing vessels that might 
participate in the U.S. Caribbean HMS small boat fishery. Vessels 
described as ``pangas'' are only one type of small boat used in this 
commercial fishery and the amendment is not designed specifically for 
this one type of small boat.
    Comment 12: High fuel prices have shortened fishing trips from the 
U.S. mainland, thus there are no differences in the length of fishing 
trips between the U.S. mainland and the U.S. Caribbean.
    Response: NMFS received comments during pre-scoping that many HMS 
fishing trips in the U.S. Caribbean are shorter because they are day 
trips where commercial fishermen leave port in the morning and return 
to port by the afternoon. Short trips such as this are only possible in 
areas where deep water is located close to port, which occurs in only a 
few locations near the U.S. mainland. The comment mentions that high 
fuel prices have shortened the trips from the U.S. mainland. Fuel 
prices in the U.S. Caribbean are normally higher than fuel prices on 
the U.S. mainland; thus the comment supports the conclusion that 
economic factors also limit trip length in the U.S. Caribbean.
    Comment 13: Increased operating costs have reduced profit margins 
for operators working out of the mainland, thus limited profit margins 
are not substantially different in the Caribbean.
    Response: This comment addresses NMFS assertion that among other 
things, profit margins in the U.S. Caribbean are reduced compared to 
U.S. mainland profit margins as one of the reasons for a Caribbean-
specific permit. In the documents associated with this rulemaking, NMFS 
has analyzed the extent to which increased operating costs have reduced 
profit margins in commercial HMS fisheries. However, these increased 
operating costs are in addition to the already low profit margins for 
fishermen in the U.S. Caribbean that result from the low prices for 
fish available in local, island markets and high operating costs due to 
factors such as higher fuel prices in the U.S. Caribbean compared to 
the U.S. mainland. Thus, NMFS believes that profit margins in the U.S. 
Caribbean continue to be lower than on the US mainland.
    Comment 14: NMFS should consider allowing HMS permits to be valid 
for more than a year.
    Response: The CCSB permit will be valid for one year and may be 
renewed annually. A longer period of validity would be more likely to 
result in permit information changing and not being updated by permit 
holders. NMFS needs to have current permit information in order to make 
appropriate fishery management decisions and believes that an annual 
renewal cycle balances the burden on the public and fishery management 
needs.
    Comment 15: NMFS needs to do more outreach and training to local 
state agencies, Coast Guard and enforcement, so that enforcement agents 
understand the regulations governing HMS in territorial and federal 
waters.
    Response: NMFS continues to work with its federal partners and 
state and territorial enforcement agencies under joint enforcement 
agreements and provides outreach and training as part of those 
agreements. Outreach and training are important components of effective 
enforcement of fisheries regulations.
    Comment 16: NMFS should evaluate the status of HMS stocks by 
regions given the different environmental conditions between the 
Caribbean region and the mainland.
    Response: The stocks of most Atlantic HMS span broad areas both 
within and beyond the Caribbean and regional stock assessments are not 
appropriate in such cases. A few shark species are found mainly in the 
Caribbean and in such cases, regional stock assessments may be 
appropriate and are conducted accordingly as data are available.
    Comment 17: NMFS should not authorize sales of HMS to non-seafood 
dealers because of seafood safety concerns and incompatibility with the 
United States Food and Drug Administration's (FDA) Hazard, Analysis, 
and Critical Control Points (HACCP). NMFS should require HMS to be iced 
properly in order to improve the quality and price of fish.
    Response: The FDA published regulations (December 18, 1995; 60 FR 
65197) mandating the application of the HACCP principles to ensure the 
safe and sanitary processing of seafood products. Dealers are 
responsible for

[[Page 59846]]

ensuring product they purchase and sell is in compliance with FDA HACCP 
regulations.

Changes From the Proposed Rule

    The permit name ``HMS Caribbean Small Boat Commercial permit'' was 
used in the proposed rule and has been changed to ``HMS Commercial 
Caribbean Small Boat permit'' in this final rule. Minor changes in the 
wording to the paragraphs found at Sec.  635.4(d)(3), (e)(1), (e)(2), 
(o)(3) and (o)(5) and Sec.  635.21(e)(3)(i) were made to provide 
further clarification. A change to add a new paragraph at Sec.  
635.71(a)(56) was made to provide further clarification. A minor change 
to delete the phrase ``After December 31, 2007,'' was made to the 
paragraph found at Sec.  635.27(c)(l)(i)(A) because the date is no 
longer needed.

Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant 
Administrator has determined that the final rule is consistent with the 
2006 Consolidated HMS FMP and its amendments, other provisions of the 
Magnuson-Stevens Act, ATCA, and other applicable law.
    NMFS prepared an environmental assessment for this final rule that 
discusses the impact on the environment that would result from this 
rule. In this final action, NMFS is addressing the need to increase the 
participation of small-scale Caribbean fishing vessels within the HMS 
permitting and reporting regime in order to better collect catch and 
effort data and provide for sustainably managed fisheries. A copy of 
the environmental assessment is available from NMFS (see ADDRESSES).
    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, OMB has determined that this final rule is not significant.
    The agency has consulted, to the extent practicable, with 
appropriate state and local officials to address the principles, 
criteria, and requirements of Executive Order 13132.
    A final regulatory flexibility analysis was prepared. The final 
regulatory flexibility analysis incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
initial regulatory flexibility analysis, NMFS's responses to those 
comments, and a summary of the analyses completed to support the 
action.
    The final regulatory flexibility analysis analyzed the anticipated 
economic impacts of the final action and any significant economic 
impacts on small entities. A summary of the final regulatory 
flexibility analysis is below. The initial and final regulatory 
flexibility analysis and the analysis of social and economic impacts 
are available from NMFS (see ADDRESSES).
    The purpose of this final rulemaking, consistent with the Magnuson-
Stevens Act, and the 2006 Consolidated HMS FMP and its amendments, is 
to enact HMS management measures that better correspond with the 
traditional operation of the small boat fishing fleet in the U.S. 
Caribbean Region and to provide NMFS with an improved capability to 
monitor and sustainably manage those fisheries.
    Section 604(a)(2) of the Regulatory Flexibility Act (RFA) requires 
agencies to summarize significant issues raised by the public in 
response to the IRFA, a summary of the agency's assessment of such 
issues, and a statement of any changes made as a result of the 
comments. We received several comments on the proposed rule and IRFA. 
Those comments and NMFS' responses to them are mentioned above in the 
preamble for this rule. In particular, comments 1, 2, 12, and 13 
address the rule's economic impacts. There are no substantive changes 
from the proposed rule as a result of these economic comments.
    Section 604(a)(3) of the RFA requires Federal agencies estimate the 
number of small entities to which the rule will apply. The current 
Caribbean HMS small-scale fishery is partially comprised of fishermen 
who currently hold an Atlantic General category or a HMS Charter/
headboat category permit and the related industries, including 
processors, bait houses, and equipment suppliers, all of which we 
consider to be small entities according to the size standards set by 
the Small Business Administration. There may also be a few new entrants 
to the Caribbean small-scale HMS fishery; however, the number of new 
entrants is expected to be low due to the isolated area, small vessels 
in the region, limited fishing area, and limited profit margins. The 
final rule applies to small-scale commercial HMS vessels that fish in 
the Caribbean Region. In 2010, there were 92 vessels permitted in the 
Atlantic tunas General category in Puerto Rico and 10 in the U.S. 
Virgin Islands. In 2010, there were 23 vessels permitted in the 
Charter/Headboat category in Puerto Rico and 21 in the U.S. Virgin 
Islands. We anticipate that the universe of fishermen who might 
purchase and fish under a Caribbean permit will be approximately 100 
individuals in the U.S. Caribbean Region, with some potential shift of 
fishermen currently permitted in the Angling and Charter/Headboat 
categories.
    Under section 604 (a)(4) of the RFA, agencies are required to 
describe any new reporting, record-keeping, and other compliance 
requirements in the final rule. This rule does not contain any new 
reporting requirements, but requires fishermen to apply for a Caribbean 
permit in a manner similar to the way HMS permit holders apply for 
their current HMS permits, if they currently hold one.
    This final rule does not conflict, duplicate, or overlap with other 
relevant federal rules (5 U.S.C. 603(b)(5)). 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 Magnuson-Stevens Act, the ACTA, the High Seas Fishing 
Compliance Act, the Marine Mammal Protection Act, the Endangered 
Species Act, the National Environmental Policy Act, the Paperwork 
Reduction Act, and the Coastal Zone Management Act. We do not believe 
that the new regulations duplicate, overlap, or conflict with any 
relevant regulations, federal or otherwise.
    Under section 604(a)(5) of the RFA, agencies are required to 
describe any alternatives to the rule which accomplish the stated 
objectives and which minimize any significant economic impacts. 
Economic impacts are discussed below and in the Environmental 
Assessment for the action. Additionally, the RFA (5 U.S.C. 603(c) (1)-
(4)) lists four general categories of significant alternatives that 
would assist an agency in developing significant alternatives. These 
categories of alternatives are: (1) Establishing differing compliance 
or reporting requirements or timetables that take into account the 
resources available to small entities; (2) clarifying, consolidating, 
or simplifying compliance and reporting requirements under the rule for 
such small entities; (3) using performance rather than design 
standards; and, (4) exempting from coverage of the rule for small 
entities.
    In order to meet the objectives of this final rule, consistent with 
legal obligations, we cannot exempt small entities or change the 
reporting requirements only for small entities. Thus, there are no 
alternatives discussed that fall under the first and fourth categories 
described above. In addition, none of the alternatives considered would 
result in additional reporting requirements (category two above). The 
relative absence of a dealer structure in the U.S. Caribbean region

[[Page 59847]]

restricts where fishermen may legally sell their catches, so they often 
sell to non-dealers or become individual dealers themselves. This final 
action modifies existing requirements that may affect small entities 
and simplifies reporting requirements. As a result, it better accounts 
for the business practices of Caribbean fishermen by allowing Caribbean 
small-scale fishermen with the Caribbean permit to directly sell their 
catches of authorized HMS without possessing a dealer permit, provided 
that the fishermen report the harvest and sale of these animals to 
their respective territorial governments, which will report these data 
to the NMFS SEFSC. Small entities may not be exempted from the final 
reporting requirements if the objectives of this final rule are to be 
met, consistent with legal obligations.
    We considered and analyzed four alternatives in this Final 
Environmental Assessment. These alternatives ranged from maintaining 
the status quo to creating a CCSB permit valid only in the U.S. 
Caribbean Region, which could allow fishing for and sales of BAYS 
tunas, swordfish, and Atlantic sharks (excluding sandbar) under 
specific limitations. Three alternatives were analyzed that would have 
allowed us to modify retention limits using the framework adjustment 
procedures codified at Sec.  635.34(b). We assessed the impacts of the 
alternatives, which are composed of seven key topics, including: 
permitting/workshop certification; authorized species; retention limit 
ranges; reporting; authorized gears; vessel size restrictions; and, 
regions. Instead of analyzing a range of alternatives under individual 
topics, the final regulatory flexibility analysis considers a number of 
alternative suites that pull from a range of alternatives under all the 
topics.
    Alternative 1 would, among other things, maintain current Atlantic 
HMS vessel and dealer permits structure, current upgrading 
restrictions, current authorized species and gear structure, current 
retention limits, and, current observer and reporting requirements. 
Alternative 2 would create a Caribbean permit allowing fishing for and 
sales of BAYS tunas and Atlantic swordfish under specific limitations. 
Alternative 3 would create a Caribbean permit allowing fishing for and 
sales of BAYS tunas, Atlantic swordfish, and Atlantic sharks, under 
specific limitations. Alternative 3 differs from Alternative 2 in that 
it could also allow for the retention of Atlantic sharks. Alternative 4 
would create a Caribbean permit allowing fishing for and sales of BAYS 
tunas, Atlantic swordfish, and Atlantic sharks, under specific 
limitations. Alternative 4 differs from Alternative 3 in that it could 
allow for higher retention limits of BAYS tunas, Atlantic swordfish, 
Atlantic sharks, and would not limit vessel size. Under alternatives 2-
4, modifications to the initial retention limits could be made using 
the adjustment procedures codified at Sec.  635.34(b).
    Under Alternative 1, we do not anticipate any substantive change in 
economic impacts, as the small-scale fishermen in the Caribbean Region 
are already operating under the current regulations. However, this 
alternative may contribute to a loss of potential income by small-scale 
fishermen in the Caribbean Region, because these fishermen are limited 
in their ability to gain access to federal commercial limited access 
HMS fisheries due to the high costs of obtaining permits considering 
the low volume of their catch and resulting profit. The relative 
absence of a dealer structure may cause them to sell to non-dealers or 
to become individual dealers themselves, which may constitute 
additional financial burden with regard to the cost of a dealer permit. 
Therefore, for all the reasons mentioned above, we do not prefer this 
alternative.
    Alternative 2 would allow small-scale fishermen in the Caribbean 
Region to fish for, retain, and sell BAYS tunas and swordfish. This 
alternative would codify initial retention limits of 10 BAYS tunas/trip 
and 2 swordfish/trip, but also provides for a defined range within 
which the retention limits can be adjusted according to specific 
management criteria (0 to 24 for BAYS and 0 to 6 for swordfish). 
Alternative 2 would limit the length of vessels eligible for the 
Caribbean permit to 45 ft. or less. Based on preliminary scoping for 
this rulemaking, a trip in which 10 BAYS and/or 2 swordfish are 
captured is considered a very successful trip for the small-scale 
fishermen; thus, these were selected as initial retention limits for 
BAYS tuna and swordfish under this alternative. Atlantic yellowfin tuna 
and ``tunas'' harvested in the handline fishery may sell for between 
$1.75/lb and $7.00/lb, depending on quality and local demand. Using 
Commission conversions for yellowfin tuna, a fish meeting the current 
U.S. minimum size (27 inches CFL) weighs approximately 14 lb. 
Therefore, if each fisherman conducted two BAYS tunas trips per month 
(24 trips/yr.), and landed 10 yellowfin tuna on each trip (240 
yellowfin tuna/yr.), then the annual revenue per vessel associated with 
this activity would range from $5,880.00 (240 yellowfin tuna x 14 lb x 
$1.75/lb)--$23,520.00 (240 yellowfin tuna x 14 lb x $7.00/lb). 
Swordfish is currently selling for approximately $4.00 to $6.00 per 
pound in the Caribbean Region (Lynn Rios, pers. comm.). Using 
Commission conversions for swordfish, a fish meeting the current U.S. 
minimum size (47 inches lower jaw fork length) weighs approximately 44 
lb. Therefore, if each fisherman conducted two swordfish trips per 
month (24 trips/yr.), and landed 2 swordfish on each trip (24 
swordfish/yr.), then the annual revenue per vessel associated with this 
activity would range from $4,224.00 (24 swordfish x 44 lb x $4.00/lb)--
$6,336.00 (24 swordfish x 44 lb x $6.00/lb). Because we would have 
authority to adjust the BAYS tunas limits from 0 to 24 fish under 
Alternative 2, the annual ex-vessel revenue estimates vary, either 
higher or lower, according to these calculations if the BAYS and 
swordfish limits were to change. This alternative could result in 
positive economic impacts for Caribbean small-scale fishermen. The 
ability to land and sell swordfish under Alternative 2 could increase 
the profitability of the localized fishery. During the comment period 
on the proposed rule, commenters requested a higher initial retention 
limit for BAYS tunas, as sometimes fishermen catch more than 10 BAYS 
tunas on a trip, as well as include a retention limit for commercial 
shark fisheries that is above zero per trip. While this alternative 
provides the Agency the ability to adjust the retention limits as 
needed and provide positive social and economic benefits, it would 
provide potential access to the federal commercial shark fishery when 
stocks rebuild. Therefore, we do not prefer this alternative.
    Alternative 3, the preferred alternative, allows Caribbean small-
scale fishermen to retain and sell from 0 to 24 BAYS tunas/trip and 
from 0 to 6 swordfish/trip. This alternative also provides Caribbean 
small-scale fishermen the capacity to participate in the federal 
commercial fishery for sharks by establishing a retention limit range 
of 0 to 3 for non-sandbar large coastal sharks and 0 to 16 for small 
coastal sharks and pelagic sharks. To be conservative, we are 
considering setting the initial shark retention limit at 0, with the 
ability to modify the retention limits once the shark complexes have 
recovered and the Agency has more data on regional participants, 
catches, and discards in the Caribbean permit fishery.
    With regard to BAYS tunas and swordfish, Alternative 3 would have 
the same positive economic impacts as Alternative 2 discussed above 
(BAYS:

[[Page 59848]]

$5,880.00-$23,520.00; swordfish: $4224.00-$6,336.00). In the Caribbean, 
``shark'' sells for between $1.57/lb and $4.00/lb depending on quality 
and demand. We would set the initial shark retention limit at 0 under 
Alternative 3. This could potentially result in some initial negative 
economic impacts; however, sharks cannot legally be harvested from the 
U.S. exclusive economic zone without possessing a shark limited access 
fishing permit. There is a potential for future revenue increases under 
this alternative because we retain the ability to modify the retention 
limits once the shark complexes have recovered and the Agency has more 
data on regional participants, catches, and discards in the Caribbean 
permit fishery. In addition, during the comment period for the proposed 
rule, we heard strong support for allowing potential access to the 
commercial shark fisheries from small-scale HMS fishery participants 
when shark stocks rebuild. Therefore, allowing Caribbean permit 
fishermen the ability to participate in the future in the federal 
commercial shark fishery under this alternative by analyzing a range of 
retention limits can potentially result in a larger positive economic 
impact than Alternatives 1 and 2, if a retention limit of greater than 
zero is authorized in the future. Therefore, based on consideration of 
public comment and all the reasons described above, we prefer this 
alternative in the final rule.
    Alternative 4 would allow Caribbean small-scale fishermen to retain 
and sell from between 0 to an unlimited number of BAYS tunas, 0 to an 
unlimited number of swordfish, 0 to 33 sharks non-sandbar large coastal 
sharks, and from 0 to an unlimited number of small coastal sharks and 
pelagic sharks. Under Alternative 4, we would set initial retention 
limits of 24 BAYS tunas per trip, 6 swordfish per trip, and 1 non-
sandbar large coastal shark and 2 small coastal sharks or pelagic 
sharks combined, with the ability to modify the retention limits once 
the shark complexes have recovered and the Agency has more data on 
regional participants, catches, and discards in the Caribbean permit 
fishery. Additionally, this alternative would not limit the vessel size 
of participants in the Caribbean permit fishery. If each fisherman 
conducted two BAYS tunas trips per month (24 trips/yr.), and landed 24 
yellowfin tuna on each trip (576 yellowfin tuna/yr.), then the annual 
revenue per vessel associated with this activity would range from 
$14,112.00 (576 yellowfin tuna x 14 lb (average weight of a landed 
yellowfin tuna) x $1.75/lb)--$56,448.00 (576 yellowfin tuna x 14 lb x 
$7.00/lb). If each fisherman conducted two swordfish trips per month 
(24 trips/yr.), and landed 6 swordfish on each trip (144 swordfish/
yr.), then the annual revenue per vessel associated with this activity 
would range from $25,344.00 (144 swordfish x 44 lb x $4.00/lb)--
$38,016.00 (144 swordfish x 44 lb x $6.00/lb). If each fisherman 
conducted two shark trips per month (24 trips/yr.), and landed 1 non-
sandbar large coastal shark and 2 small coastal sharks on each trip (24 
large coastal sharks/yr. & 48 small coastal sharks/yr.), then the 
annual revenue per vessel associated with this activity would range 
from $4,296.00 (24 large coastal sharks x 95 lb x $1.57/lb + 48 small 
coastal sharks x 10 lb x $1.57/lb)--$11,040.00 (24 large coastal sharks 
x 95 lb x $4.00/lb + 48 small coastal sharks x 10 lb x $4.00/lb). These 
estimates of annual revenues could be higher if more pelagic sharks 
were landed due to their larger average size. Because we would have 
framework authority to adjust the trip limits for BAYS, swordfish, and 
sharks within the range analyzed under Alternative 4, this alternative 
could potentially have the largest positive economic impacts when 
compared with Alternatives 1, 2, and 3 discussed above. However, this 
alternative could also result in local overcapitalization in the 
fishery, lead to depressed market prices, and other potentially adverse 
economic impacts, a concern expressed by small-scale HMS fishermen in 
the comment period of the proposed rule. Based on public comment and 
reasons described above, we do not prefer this alternative.
    During the public comment period of the proposed rule, one 
commenter requested to know the economic costs and reporting burden 
associated with having to buy the new Caribbean permit. The social and 
economic impacts expected from Alternatives 2, 3, and 4 as a result of 
fishery participants in the U.S. Caribbean having to purchase the new 
permit are the same. For instance, if individuals needed to obtain the 
Caribbean permit, it will cost them a total of $25 on an annual basis. 
Because fishery participants in the Caribbean region are already 
reporting to the same existing territorial data collection programs 
required under the new Caribbean permit, we do not expect any 
additional reporting burden under any of the alternatives analyzed.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0205). Public reporting 
burden for the HMS CCSB permit is anticipated to result in an estimated 
100 new responses for fishermen who may wish to apply for the new 
permit and an estimated average of 20 minutes per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to 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 Paperwork Reduction Act, unless that collection of 
information displays a currently valid Office of Management and Budget 
control number.
    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 final regulatory flexibility 
analysis, 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 small 
entity compliance guide was prepared. Copies of this final rule and 
compliance guide are available upon request from NMFS or on the Web 
page (see ADDRESSES).

List of Subjects

50 CFR Part 600

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

50 CFR Part 635

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


[[Page 59849]]


    Dated: September 26, 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 the reasons set out in the preamble, 50 CFR parts 600 and 635 
are to be amended as follows:

PART 600-MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

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


0
2. In Sec.  600.725, in the table in paragraph (v), under the heading 
``IX. Secretary of Commerce,'' entry 1, add entry ``N'' to read as 
follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

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

* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
3. The authority citation for part 635 continues to read as follows:

    Authority:  16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


0
4. In Sec.  635.4:
0
a. Revise paragraphs (a)(5), (a)(10), (d)(1), (d)(2), (d)(3), (e)(1), 
(e)(2), (f)(1), (f)(2), (g)(1), (g)(2), (g)(3), (h)(1) introductory 
text, (m)(1), and (m)(2); and
0
b. Add paragraph (o).
    The revisions and addition read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (a) * * *
    (5) Display upon offloading. Upon offloading of Atlantic HMS, the 
owner or operator of the harvesting vessel must present for inspection 
the vessel's HMS Charter/Headboat permit; Atlantic tunas, shark, or 
swordfish permit; Incidental HMS squid trawl; HMS Commercial Caribbean 
Small Boat permit; and/or the shark research permit to the first 
receiver. The permit(s) must be presented prior to completing any 
applicable landing report specified at Sec.  635.5(a)(1), (a)(2), and 
(b)(2)(i).
* * * * *
    (10) Permit condition. An owner of a vessel with a valid swordfish, 
shark, HMS Angling, HMS Charter/Headboat, Incidental HMS squid trawl, 
or HMS Commercial Caribbean Small Boat permit issued pursuant to this 
part must agree, as a condition of such permit, that the vessel's HMS 
fishing, catch, and gear are subject to the requirements of this part 
during the period of validity of the permit, without regard to whether 
such fishing occurs in the U.S. EEZ, or outside the U.S. EEZ, and 
without regard to where such HMS, or gear, are possessed, taken, or 
landed. However, when a vessel fishes within the waters of a state that 
has more restrictive regulations pertaining to HMS, persons aboard the 
vessel must abide by the state's more restrictive regulations.
* * * * *
    (d) Atlantic Tunas vessel permits. (1) The owner of each vessel 
used to fish for or take Atlantic tunas commercially or on which 
Atlantic tunas are retained or possessed with the intention of sale 
must obtain an HMS Charter/Headboat permit issued under paragraph (b) 
of this section, an HMS Commercial Caribbean Small Boat permit issued 
under paragraph (o) of this section, or an Atlantic tunas permit in 
one, and only one, of the following categories: General, Harpoon, 
Longline, Purse Seine, or Trap.
    (2) Persons aboard a vessel with a valid Atlantic Tunas, HMS 
Angling, HMS Charter/Headboat, or an HMS Commercial Caribbean Small 
Boat permit may fish for, take, retain, or possess Atlantic tunas, but 
only in compliance with the quotas, catch limits, size classes, and 
gear applicable to the permit or permit category of the vessel from 
which he or she is fishing. Persons may sell Atlantic tunas only if the 
harvesting vessel has a valid permit in the General, Harpoon, Longline, 
Purse Seine, or Trap category of the Atlantic Tunas permit, a valid HMS 
Charter/Headboat, or an HMS Commercial Caribbean Small Boat permit.
    (3) A vessel issued an Atlantic Tunas permit in any category for a 
fishing year shall not be issued an HMS Angling permit, HMS Charter/
Headboat permit, or an Atlantic Tunas permit in any other category for 
that same fishing year, regardless of a change in the vessel's 
ownership. A vessel issued an Atlantic Tunas permit may be issued an 
HMS Commercial Caribbean Small Boat permit, subject to restrictions set 
forth at Sec.  635.4(o), within that same fishing year; however, a 
vessel may not hold any other HMS fishing permit simultaneously with 
the HMS Commercial Caribbean Small Boat permit.
* * * * *
    (e) * * *
    (1) The owner of each vessel used to fish for or take Atlantic 
sharks or on which Atlantic sharks are retained, possessed with an 
intention to sell, or sold must obtain, in addition to any other 
required permits, at least one of the Federal Atlantic commercial shark 
permits described below or an HMS Commercial Caribbean Small Boat 
permit. A Federal Atlantic commercial shark permit or HMS Commercial 
Caribbean Small Boat permit is not required if the vessel is 
recreationally fishing and retains no more sharks than the recreational 
retention limit specified in Sec.  635.22(c), is operating pursuant to 
the conditions of a shark display or EFP issued pursuant to Sec.  
635.32, or fishes exclusively within State waters. It is a rebuttable 
presumption that the owner or operator of a vessel without a permit 
issued pursuant to this part, on which sharks are possessed in excess 
of the recreational retention limits, intends to sell the sharks.
    (2) The owner of vessels that fish for, take, retain, or possess 
the Atlantic oceanic sharks listed in sections A, B, or C of Table 1 of 
Appendix A with an intention to sell must obtain a Federal Atlantic 
commercial shark directed or incidental limited access permit or an HMS 
Commercial Caribbean Small Boat

[[Page 59850]]

permit. The only valid Federal commercial shark directed and shark 
incidental limited access permits are those that have been issued under 
the limited access program consistent with the provisions under 
paragraphs (l) and (m) of this section.
* * * * *
    (f) * * *
    (1) Except as specified in paragraphs (n) and (o) of this section, 
the owner of each vessel used to fish for or take Atlantic swordfish or 
on which Atlantic swordfish are retained or possessed with an intention 
to sell or from which Atlantic swordfish are sold must obtain, in 
addition to any other required permits, only one of three types of 
commercial limited access swordfish permits: Swordfish directed limited 
access permit, swordfish incidental limited access permit, or swordfish 
handgear limited access permit. It is a rebuttable presumption that the 
owner or operator of a vessel on which swordfish are possessed in 
excess of the recreational retention limits intends to sell the 
swordfish.
    (2) The only valid commercial Federal vessel permits for swordfish 
are those that have been issued under the limited access program 
consistent with the provisions under paragraphs (l) and (m) of this 
section, or those issued under paragraphs (n) and (o) of this section.
* * * * *
    (g) * * *
    (1) 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 except as noted under 
paragraph (o) of this section.
    (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 except as noted under paragraph (o) of this section.
    (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 except as noted 
under paragraph (o) of this section.
    (h) * * *
    (1) Atlantic Tunas, HMS Angling, HMS Charter/Headboat, Incidental 
HMS squid trawl, and HMS Commercial Caribbean Small Boat vessel 
permits.
* * * * *
    (m) * * *
    (1) General. Persons must apply annually for a dealer permit for 
Atlantic tunas, sharks, and swordfish, and for an Atlantic HMS Angling, 
HMS Charter/Headboat, tunas, shark, swordfish, Incidental HMS squid 
trawl, or HMS Commercial Caribbean Small Boat vessel permit. Except as 
specified in the instructions for automated renewals, persons must 
submit a renewal application to NMFS, along with a copy of the 
applicable valid workshop certificate or certificates, if required 
pursuant to Sec.  635.8, at an address designated by NMFS, at least 30 
days before a permit's expiration to avoid a lapse of permitted status. 
NMFS will renew a permit if the specific requirements for the requested 
permit are met, including those described in paragraphs (h)(1)(iv) and 
(l)(2) of this section; all reports required under the Magnuson-Stevens 
Act and ATCA have been submitted, including those described in 
Sec. Sec.  635.5 and 300.185 of this title; the applicant is not 
subject to a permit sanction or denial under paragraph (a)(6) of this 
section; and the workshop requirements specified in Sec.  635.8 are 
met.
    (2) Shark and swordfish LAPs. The owner of a vessel of the U.S. 
that fishes for, possesses, lands or sells shark or swordfish from the 
management unit, or that takes or possesses such shark or swordfish as 
incidental catch, must have the applicable limited access permit(s) 
issued pursuant to the requirements in paragraphs (e) and (f) of this 
section, except as specified in paragraphs (n) and (o) of this section. 
Only persons holding non-expired shark and swordfish limited access 
permit(s) in the preceding year are eligible to renew those limited 
access permit(s). Transferors may not renew limited access permits that 
have been transferred according to the procedures in paragraph (l) of 
this section.
* * * * *
    (o) HMS Commercial Caribbean Small Boat permits. (1) The owner of a 
vessel who fishes in the U.S. Caribbean, as defined at Sec.  622.2 of 
this chapter, possesses handgear or green-stick gear and retains, with 
the intention to sell, any BAYS tunas, Atlantic swordfish, or Atlantic 
sharks may obtain an HMS Commercial Caribbean Small Boat permit. An HMS 
Commercial Caribbean Small Boat permit is valid only within the U.S. 
Caribbean, as defined at Sec.  622.2 of this chapter.
    (2) To be eligible for an HMS Commercial Caribbean Small Boat 
permit, vessel owners must provide documentation that the vessel is 
less than or equal to 13.7 m (45 ft) in length overall.
    (3) A vessel issued an HMS Commercial Caribbean Small Boat permit 
may not be issued any other HMS fishing permit, except those issued 
under Sec.  635.32, as long as the HMS Commercial Caribbean Small Boat 
permit is valid.
    (4) The owner of a vessel issued an HMS Commercial Caribbean Small 
Boat permit may fish for, take, retain, or possess only BAYS tunas, 
Atlantic swordfish, and Atlantic sharks, subject to the trip limits 
specified at Sec.  635.24 and may possess unauthorized gears onboard as 
stated at Sec.  635.21(b).
    (5) HMS landed under an HMS Commercial Caribbean Small Boat permit 
may be sold by the owner or operator to individuals who do not possess 
a valid HMS dealer permit otherwise required under Sec.  635.4(g). HMS 
Commercial Caribbean Small Boat permit holders may not sell HMS 
harvested or landed by another vessel or purchase, barter, or trade for 
HMS harvested by other vessels with the intent to sell.

0
5. In Sec.  635.21, revise paragraphs (b), (e)(1) introductory text, 
(e)(3)(i), and (e)(4)(iii) and (iv) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (b) General. No person may fish for, catch, possess, or retain any 
Atlantic HMS with gears other than the primary gears specifically 
authorized in this part. Consistent with paragraphs (a)(1) and (2) of 
this section, secondary gears may be used at boat side to aid and 
assist in subduing, or bringing on board a vessel, Atlantic HMS that 
have first been caught or captured using primary gears. For purposes of 
this part, secondary gears include, but are not limited to, dart 
harpoons, gaffs, flying gaffs, tail ropes, etc. Secondary gears may not 
be used to capture, or attempt to capture, free-swimming or undersized 
HMS. Except for vessels permitted under Sec.  635.4(o) or as specified 
in this paragraph (b), a vessel using or having onboard in the Atlantic 
Ocean any unauthorized gear may not possess an Atlantic HMS on board.
* * * * *
    (e) * * *
    (1) Atlantic tunas. A person that fishes for, retains, or possesses 
an Atlantic bluefin tuna (BFT) may not have on board a vessel or use on 
board a vessel any primary gear other than those authorized for the 
category for which the Atlantic tunas or HMS permit has been issued for 
such vessel. Primary gears are the gears specifically authorized in 
this section. When fishing for Atlantic tunas other than BFT, primary 
gear authorized for any Atlantic Tunas permit category may be used,

[[Page 59851]]

except that purse seine gear may be used only on board vessels 
permitted in the Purse Seine category and pelagic longline gear may be 
used only on board vessels issued an Atlantic Tunas Longline category 
tuna permit, a LAP other than handgear for swordfish, and a LAP for 
sharks. A person issued an HMS Commercial Caribbean Small Boat permit 
who fishes for, retains, or possesses BAYS tunas in the U.S. Caribbean, 
as defined at Sec.  622.2, may have on board and use handline, harpoon, 
rod and reel, bandit gear, green-stick gear, and buoy gear.
* * * * *
    (3) * * *
    (i) No person may possess a shark in the EEZ taken from its 
management unit without a permit issued under Sec.  635.4. No person 
issued a Federal Atlantic commercial shark permit under Sec.  635.4 may 
possess a shark taken by any gear other than rod and reel, handline, 
bandit gear, longline, or gillnet. No person issued an HMS Commercial 
Caribbean Small Boat permit may possess a shark taken from the U.S. 
Caribbean, as defined at Sec.  622.2, by any gear other than with rod 
and reel, handline or bandit gear. No person issued an HMS Angling 
permit or an HMS Charter/headboat permit under Sec.  635.4 may possess 
a shark if the shark was taken from its management unit by any gear 
other than rod and reel or handline, except that persons on a vessel 
issued both an HMS Charter/Headboat permit and a Federal Atlantic 
commercial shark permit may possess sharks taken with rod and reel, 
handline, bandit gear, longline, or gillnet if the vessel is not 
engaged in a for-hire fishing trip.
* * * * *
    (4) * * *
    (iii) A person aboard a vessel issued or required to be issued a 
valid directed handgear LAP for Atlantic swordfish or an HMS Commercial 
Caribbean Small Boat permit may not fish for swordfish with any gear 
other than handgear. A swordfish will be deemed to have been harvested 
by longline when the fish is on board or offloaded from a vessel using 
or having on board longline gear. Only vessels that have been issued, 
or that are required to have been issued, a valid directed or handgear 
swordfish LAP or an HMS Commercial Caribbean Small Boat permit under 
this part may utilize or possess buoy gear. Vessels utilizing buoy gear 
may not possess or deploy more than 35 floatation devices, and may not 
deploy more than 35 individual buoy gears per vessel. Buoy gear must be 
constructed and deployed so that the hooks and/or gangions are attached 
to the vertical portion of the mainline. Floatation devices may be 
attached to one but not both ends of the mainline, and no hooks or 
gangions may be attached to any floatation device or horizontal portion 
of the mainline. If more than one floatation device is attached to a 
buoy gear, no hook or gangion may be attached to the mainline between 
them. Individual buoy gears may not be linked, clipped, or connected 
together in any way. Buoy gears must be released and retrieved by hand. 
All deployed buoy gear must have some type of monitoring equipment 
affixed to it including, but not limited to, radar reflectors, beeper 
devices, lights, or reflective tape. If only reflective tape is 
affixed, the vessel deploying the buoy gear must possess on board an 
operable spotlight capable of illuminating deployed floatation devices. 
If a gear monitoring device is positively buoyant, and rigged to be 
attached to a fishing gear, it is included in the 35 floatation device 
vessel limit and must be marked appropriately.
    (iv) Except for persons aboard a vessel that has been issued a 
limited access North Atlantic swordfish permit, Incidental HMS squid 
trawl permit, or an HMS Commercial Caribbean Small Boat permit under 
Sec.  635.4, no person may fish for North Atlantic swordfish with, or 
possess a North Atlantic swordfish taken by, any gear other than 
handline or rod and reel.
* * * * *

0
6. In Sec.  635.24, revise the section heading and add paragraphs 
(a)(4)(iv), (b)(3), and (c) to read as follows:


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

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

0
7. In Sec.  635.27, revise paragraph (c)(1)(i)(A) to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (A) A swordfish from the North Atlantic stock caught prior to the 
directed fishery closure by a vessel for which a directed fishery 
permit, or a handgear permit for swordfish, or an HMS Commercial 
Caribbean Small Boat permit has been issued or is required to be issued 
is counted against the directed fishery quota. The total baseline 
annual fishery quota, before any adjustments, is 2,937.6 mt dw for each 
fishing year. Consistent with applicable ICCAT recommendations, a 
portion of the total baseline annual fishery quota may be used for 
transfers to another ICCAT contracting party. The annual directed 
category quota is calculated by adjusting for over- or underharvests, 
dead discards, any applicable transfers, the incidental category quota, 
the reserve quota and other adjustments as needed, and is subdivided 
into two equal semi-annual: one for January 1 through June 30, and the 
other for July 1 through December 31.
* * * * *

0
8. In Sec.  635.31, revise paragraphs (a)(1), (a)(2)(ii), and (d)(1) to 
read as follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) A person that owns or operates a vessel from which an Atlantic 
tuna is landed or offloaded may sell such Atlantic tuna only if that 
vessel has a valid HMS Charter/Headboat permit; a valid General, 
Harpoon, Longline, Purse Seine, or Trap category permit for Atlantic 
tunas; or a valid HMS Commercial Caribbean Small Boat permit issued 
under this part. However, no person may sell a BFT smaller than the 
large medium size class. Also, no large medium or giant BFT taken by a 
person aboard a vessel with an Atlantic HMS Charter/Headboat permit 
fishing in the Gulf of Mexico at any time, or fishing outside the Gulf 
of Mexico when the fishery under the General category has been closed, 
may be sold (see Sec.  635.23(c)). A person may sell Atlantic bluefin 
tuna only to a dealer that has a valid permit for purchasing Atlantic 
bluefin tuna issued under this part. A person may not sell or purchase 
Atlantic tunas harvested with speargun fishing gear.
* * * * *

[[Page 59852]]

    (2) * * *
    (ii) Dealers may first receive BAYS tunas only if they have 
submitted reports to NMFS according to reporting requirements of 
paragraphs Sec.  635.5(b)(1)(ii) and only from a vessel that has a 
valid Federal commercial permit for Atlantic tunas issued under this 
part in the appropriate category. Individuals issued a valid HMS 
Commercial Caribbean Small Boat permit, and operating in the U.S. 
Caribbean as defined at Sec.  622.2, may sell their trip limits of BAYS 
tunas, codified at Sec.  635.24(c), to dealers and non-dealers.
* * * * *
    (d) * * *
    (1) Persons that own or operate a vessel on which a swordfish in or 
from the Atlantic Ocean is possessed may sell such swordfish only if 
the vessel has a valid commercial permit for swordfish issued under 
this part. Persons may offload such swordfish only to a dealer who has 
a valid permit for swordfish issued under this part; except that 
individuals issued a valid HMS Commercial Caribbean Small Boat permit, 
and operating in the U.S. Caribbean as defined at Sec.  622.2, may sell 
swordfish, as codified at Sec.  635.24(b)(3), to non-dealers.
* * * * *

0
9. In Sec.  635.71:
0
a. Revise paragraphs (a)(3), (a)(4), and (a)(53);
0
b. Add paragraph (a)(56); and
0
c. Revise paragraphs (e)(1), (e)(10), (e)(11), and (e)(16).
    The revisions and addition read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (3) Purchase, receive, or transfer or attempt to purchase, receive, 
or transfer, for commercial purposes, Atlantic 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 HMS 
harvested by HMS Commercial Caribbean Small Boat vessel permit holders 
operating in the U.S. Caribbean as defined at Sec.  622.2 or 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.
    (4) Sell or transfer or attempt to sell or transfer, for commercial 
purposes, an Atlantic tuna, shark, or swordfish other than to a dealer 
that has a valid dealer permit issued under Sec.  635.4, except that 
this does not apply to HMS Commercial Caribbean Small Boat vessel 
permit holders operating in the U.S. Caribbean as defined at Sec.  
622.2, or to a shark harvested by a vessel that has not been issued a 
permit under this part and that fishes exclusively within the waters 
under the jurisdiction of any state.
* * * * *
    (53) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'' as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access permit or a swordfish handgear limited access permit in 
accordance with Sec.  635.4(f) or a valid HMS Commercial Caribbean 
Small Boat permit in accordance with Sec.  635.4(o).
* * * * *
    (56) Have been issued a valid HMS Commercial Caribbean Small Boat 
permit and to purchase, barter for, or trade for HMS harvested by other 
vessels with the intent to sell.
* * * * *
    (e) * * *
    (1) Purchase, barter for, or trade for a swordfish from the north 
or south Atlantic swordfish stock without a dealer permit as specified 
in Sec.  635.4(g), unless the harvesting vessel possesses a valid HMS 
Commercial Caribbean Small Boat permit issued under Sec.  635.4 of this 
part and harvested the swordfish in the U.S. Caribbean as defined at 
Sec.  622.2.
* * * * *
    (10) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'' as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access permit or a swordfish handgear limited access permit in 
accordance with Sec.  635.4(f) or a valid HMS Commercial Caribbean 
Small Boat permit in accordance with Sec.  635.4(o).
    (11) As the owner of a vessel permitted, or required to be 
permitted, in the swordfish directed, swordfish handgear limited access 
permit category, or issued a valid HMS Commercial Caribbean Small Boat 
permit and utilizing buoy gear, to possess or deploy more than 35 
individual floatation devices, to deploy more than 35 individual buoy 
gears per vessel, or to deploy buoy gear without affixed monitoring 
equipment, as specified at Sec.  635.21(e)(4)(iii).
* * * * *
    (16) Possess any HMS, other than Atlantic swordfish, harvested with 
buoy gear as specified at Sec.  635.21(e) unless issued a valid HMS 
Commercial Caribbean Small Boat permit and operating within the U.S. 
Caribbean as defined at Sec.  622.2.
* * * * *
[FR Doc. 2012-24136 Filed 9-28-12; 8:45 am]
BILLING CODE 3510-22-P