[Federal Register Volume 78, Number 36 (Friday, February 22, 2013)]
[Proposed Rules]
[Pages 12273-12287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03990]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 120627194-3097-01]
RIN 0648-BC31


Highly Migratory Species; 2006 Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan; Amendment 8

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule to implement Amendment 8 to the 2006 
Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management 
Plan (FMP) addresses North Atlantic swordfish commercial fishery 
management measures. In recent years, the North Atlantic swordfish 
stock has experienced significant growth due to ongoing domestic and 
international conservation measures designed to reduce mortality, 
protect juvenile swordfish, monitor international trade, reduce 
bycatch, and improve data collection. The most recent stock assessment, 
conducted in 2009, indicates that the North Atlantic swordfish 
population is fully rebuilt (``not overfished'') and overfishing is no 
longer occurring. Despite ongoing efforts to revitalize the U.S. North 
Atlantic swordfish fishery, domestic catches have remained below the 
U.S. North Atlantic swordfish quota allocated by the International 
Commission for the Conservation of Atlantic Tunas (ICCAT). Fishing 
gears such as rod and reel, handline, harpoon, bandit gear, and green-
stick are highly selective when compared to other gears, have low 
bycatch interaction rates with protected species and marine mammals, 
and may have low post-release mortality rates on non-target species and 
undersized swordfish. However, the current swordfish Handgear permit is 
a limited access permit, and is often difficult or expensive to obtain. 
Based upon the rebuilt status of North Atlantic swordfish, renewed 
interest in commercial handgears that are lower in bycatch and bycatch 
mortality, and the availability of swordfish quota, through Amendment 8 
to the 2006 Consolidated HMS FMP NFMS proposes to provide additional 
commercial fishing opportunities for persons using swordfish handgears.

DATES: Written comments will be accepted until April 23, 2013.

ADDRESSES: You may submit comments on this proposed rule to implement 
Amendment 8 to the 2006 Consolidated Atlantic HMS FMP, identified by 
NOAA-NMFS-2013-0026, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0026, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Highly Migratory Species 
Management Division, NMFS Office of Sustainable Fisheries, 1315 East-
West Highway, Silver Spring, MD 20910. Please mark on the outside of 
the envelope ``Comments on Amendment 8 to the HMS FMP.''
     Fax: 301-713-1917; Attn: Michael Clark or Jennifer Cudney
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and generally will be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. Do not submit confidential 
business information, or otherwise sensitive or protected information. 
NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, or Adobe PDF file 
formats only.
    NMFS will hold five public hearings on this proposed rule with two 
being conducted on March 11, 2013, and the others on March 14, 2013, 
March 28, 2013, and April 10, 2013. The public hearings will be held in 
St. Petersburg, FL; Silver Spring, MD; Gloucester, MA; Fort Lauderdale, 
FL; and via a public conference call and webinar. NMFS will also hold a 
conference call and webinar on this proposed rule to consult with the 
HMS Advisory Panel (HMS AP) on April 18, 2013. These public hearings 
may be combined with public hearings for other relevant highly 
migratory species management actions. For specific locations, dates and 
times see the SUPPLEMENTARY INFORMATION section of this document.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to Michael Clark, Highly Migratory 
Species Management Division, NMFS Office of Sustainable Fisheries, 1315 
East-West Highway, Silver Spring, MD 20910, and by email to [email protected] or fax to (202) 395-7285

FOR FURTHER INFORMATION CONTACT: Rick Pearson at 727-824-5399; Michael 
Clark or Jennifer Cudney at 301-427-8503; or Steve Durkee at 202-670-
6637.

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 Tunas 
Convention Act (ATCA). Under the Magnuson-Stevens Act, NMFS must, 
consistent with the National Standards, prevent overfishing while 
achieving, on a continuing basis, the optimum yield (OY) from each 
fishery and rebuild overfished fisheries. Under ATCA, the Secretary of 
Commerce (Secretary) shall promulgate regulations as may be necessary 
and appropriate to carry out recommendations by ICCAT. The authority to 
issue regulations under the Magnuson-Stevens Act and ATCA has been 
delegated from the Secretary to the Assistant Administrator for 
Fisheries, NOAA (AA). On May 28, 1999, NMFS published in the Federal 
Register (64 FR 29090) final regulations, effective July 1, 1999, 
implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, 
and Sharks (1999 FMP). On October 2, 2006, NMFS published in the 
Federal Register (71 FR 58058) final regulations, effective November 1, 
2006, implementing the 2006 Consolidated Highly Migratory Species (HMS) 
FMP, which details the management measures for Atlantic HMS fisheries, 
including the North Atlantic swordfish handgear fishery.

[[Page 12274]]

Background

    A brief summary of the background of this proposed action is 
provided below. A more complete summary of Atlantic HMS management 
measures can be found in the 2006 Consolidated Atlantic HMS FMP, in the 
annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and 
online at http://www.nmfs.noaa.gov/sfa/hms/.
    On June 1, 2009 (74 FR 26174), NMFS published an Advance Notice of 
Proposed Rulemaking (ANPR) to inform the public about and request 
comments concerning actions that NMFS was considering to increase 
opportunities for U.S. fisheries to more fully harvest the U.S. North 
Atlantic swordfish quota. One of the items contained in the ANPR was 
the potential establishment of a new commercial permit to harvest 
swordfish using handgear. The comment period for the ANPR ended on 
August 31, 2009. In addition to issuing an ANPR, NMFS publicly 
discussed a commercial swordfish handgear permit concept during HMS 
Advisory Panel (AP) meetings from 2009-2012. A pre-draft of Amendment 
8, including specific management alternatives, was presented to the HMS 
AP and made publicly available online in March of 2012. NMFS received 
numerous comments both in support of, and opposed to, the concept of a 
new commercial swordfish handgear permit, and many suggestions for how 
a new permit should be administered. All of the comments received on 
the 2009 ANPR, the 2009-2012 HMS AP meetings, and the pre-draft to 
Amendment 8, have been considered in the preparation of this proposed 
rule. Based upon those comments and discussions, NMFS has decided not 
to further analyze a swordfish body tagging program that was 
preliminarily discussed in the pre-draft to Amendment 8 due to concerns 
about its effectiveness at reliably identifying commercially-harvested 
swordfish and, in particular, preventing the illegal sale of 
recreationally-harvested fish.
    NMFS anticipates that the proposed action would have a low level of 
potential environmental impacts due to the relatively low swordfish 
retention limits (zero to six fish) that are being considered for a new 
permit and by restricting the authorized gears to traditional 
handgears. Additionally, the potential impacts on protected and non-
target species and essential fish habitat (EFH) are expected to be 
minimal due to the selective nature and low bycatch associated with the 
handgears being considered in this proposed rule. Therefore, after 
considering the potential environmental effects of the proposed 
measures and substantive comments received through the ANPR, HMS AP 
meetings, and the pre-draft for Amendment 8, NMFS has preliminarily 
determined that an environmental assessment would provide an 
appropriate level of review for Amendment 8, and that preparing an 
environmental impact statement is not necessary.
    The 1999 FMP established a limited access permit program for 
vessels in the commercial Atlantic swordfish, shark, and tuna longline 
fisheries to keep harvesting capacity consistent with the available 
quotas and to reduce latent effort while preventing overcapitalization. 
As a result, since 1999, persons interested in entering the commercial 
swordfish fishery have had to obtain a limited access vessel permit 
from an existing permit holder leaving the fishery. Two of the three 
types of swordfish limited access permits (the directed and incidental 
permits) also require vessel owners to obtain a shark limited access 
permit and an Atlantic tunas Longline category permit to fish for, or 
retain, North Atlantic swordfish. In addition to the Directed and 
Incidental swordfish permits, which allow the use of longline and most 
handgears, there is also a separate swordfish Handgear limited access 
permit, which restricts gear use to most handgears (i.e., rod and reel, 
handline, harpoon, buoy gear, and bandit gear, but not speargun gear). 
Since 2005, the number of swordfish Handgear limited access permits 
that have been renewed or transferred has ranged from 75-92 per year. 
Because no new commercial swordfish vessel permits have been issued 
since 1999, many of these limited access permits have substantially 
increased in value and can be difficult to obtain, thereby presenting a 
barrier to entry into the commercial swordfish handgear fishery.
    In recent years, the North Atlantic swordfish stock has experienced 
significant growth in biomass due largely to ongoing domestic and 
international conservation measures designed to reduce mortality, 
protect juvenile swordfish, monitor international trade, reduce 
bycatch, and improve data collection. Several strong year classes in 
the late 1990s and an overall reduction in catch since 1987 have 
supported the recovery of the North Atlantic swordfish stock. The most 
recent stock assessment for North Atlantic swordfish was conducted in 
2009 by ICCAT's Standing Committee on Research and Statistics (SCRS), 
using data through 2008. The SCRS found that fishing mortality had been 
below FMSY (the fishing mortality that produces maximum 
sustainable yield) since 2005. The trend for estimated relative biomass 
showed a consistent increase since 2000 and was at or above 
BMSY (1.05, range = 0.94-1.24). The SCRS indicated that 
there was a greater than 50-percent probability that the stock is above 
BMSY (sustainable biomass), and thus ICCAT's rebuilding 
objective had been achieved. In 2009, NMFS declared the North Atlantic 
swordfish population fully rebuilt (``not overfished'') with no 
overfishing occurring, based upon the SCRS stock assessment
    NMFS believes that there is high interest in providing additional 
access to the commercial swordfish fishery. Before, and since, the 
North Atlantic swordfish stock was declared fully rebuilt in 2009, NMFS 
has made significant efforts to restructure its fisheries and adjust 
regulatory constraints on its swordfish fishermen while not increasing 
the incidental catch of sea turtles, marine mammals, or other protected 
and non-target species. As a result of these ``revitalization'' efforts 
and the increased availability of fish due to stock rebuilding, U.S. 
swordfish catches have increased by nearly 40 percent since 2006. 
However, domestic catches have continued to remain below the North 
Atlantic swordfish quota recommended for the United States by ICCAT. 
There has been a recent re-emergence of interest in using handgear, 
including rod and reel, handline, harpoon, green-stick, and bandit 
gear, to fish commercially for swordfish. These gears are tended and, 
when compared to other gears, are highly selective, have low bycatch 
interaction rates with protected species and marine mammals, and may 
have low post-release mortality rates on non-target species and 
undersized swordfish. The potential expansion of the commercial 
swordfish handgear fishery is consistent with making steady progress 
toward fully harvesting the United States' domestic swordfish quota 
allocation while continuing to minimize the bycatch of protected 
species, marine mammals, non-target species, and undersized swordfish.
    As the swordfish stock has been declared rebuilt and more fish have 
recruited to larger sizes, rod and reel, handline, harpoon, and bandit 
gear have increasingly become more economically viable for commercial 
swordfish fishing over a larger geographic range. Additionally, these 
gears have the benefit of low bycatch and bycatch mortality rates. 
Additionally, there is now adequate swordfish quota available to 
provide additional access to the fishery. From 2007-2011, on average,

[[Page 12275]]

the United States caught approximately 70 percent of its baseline quota 
allocation of North Atlantic swordfish. From 2006-2011, the ICCAT 
recommendation allowed the United States to carry over up to half of 
its baseline quota of uncaught swordfish to the following year. This 
carryover was reduced to a 25-percent rollover allowance starting in 
2012. In 2011, the most recent year for which complete data are 
available, the United States caught approximately 74 percent of its 
baseline swordfish quota and approximately 50 percent of its adjusted 
quota. For these reasons, NMFS is proposing increasing commercial 
access to the swordfish resource by establishing a new commercial 
swordfish handgear permit, and through modifications to existing 
permits. NMFS recognizes that newly implemented swordfish management 
measures and recent fishery behavior in 2012 and beyond could affect 
the amount of quota available for the new and modified commercial 
handgear permits. During the first half of 2012, changes to the ICCAT 
quota rollover allowance, a new minimum size requirement (77 FR 45273; 
July 31, 2012), and a continuing increase in landings have occurred. 
Therefore, NMFS will continue to carefully monitor the swordfish 
fishery to determine if, and how, these recent changes in the fishery 
could affect the establishment of new and modified commercial swordfish 
handgear permits.
    The primary purpose of the proposed action is to provide additional 
opportunities for U.S. fishermen to harvest swordfish using selective 
gears that result in lower bycatch rates, given the rebuilt status of 
swordfish and their resulting increased availability. The goal is for 
the United States to more fully utilize its domestic swordfish quota 
allocation, which is based upon the ICCAT recommendation. A secondary 
purpose of the proposed rule is to implement regulatory adjustments to 
update a telephone number and remove outdated references in the HMS 
regulations at 50 CFR part 635. Consistent with the 2006 Consolidated 
HMS FMP objectives, the Magnuson-Stevens Act, and other relevant 
Federal laws, the specific objectives for this action are to:
     Implement conservation and management measures that 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield (OY) from the U.S. North Atlantic swordfish fishery;
     Provide increased opportunities for the United States to 
more fully utilize its ICCAT-recommended domestic swordfish quota 
allocation;
     Implement a North Atlantic swordfish management system to 
make fleet capacity commensurate with resource status to improve both 
economic efficiency and biological conservation, and provide additional 
access for traditional fishing gears;
     Provide commercial swordfish fishing opportunities for 
U.S. fishermen within established quota levels using selective fishing 
gears that have minimal bycatch and maximize the survival of any 
released species;
     Enact management measures to establish new and modified 
commercial vessel permits that would allow for a limited number of 
swordfish to be caught on rod and reel, handline, harpoon, bandit gear, 
or green-stick gear and sold commercially;
     Examine and implement regionally tailored North Atlantic 
swordfish management strategies, as appropriate; and
     Improve the Agency's capability to monitor and sustainably 
manage the North Atlantic swordfish fishery.
    The proposed action would implement new and modified commercial 
vessel permits that allow fishermen to retain and sell a limited number 
of swordfish caught on rod and reel, handline, harpoon, bandit gear, 
and green-stick. Specifically this action proposes to implement: (1) 
New and modified swordfish vessel permits and authorized gears; and, 
(2) swordfish retention limits associated with the new and modified 
permits. Current swordfish reporting requirements, including the 
submission of monthly logbooks if a vessel is selected for reporting, 
would be applicable to any new or modified vessel permit. The 
alternatives that have been analyzed represent a range of options that 
NMFS has considered to allow for a limited number of swordfish (zero to 
six) caught on handgear (rod & reel, handline, harpoon, bandit gear, 
and green-stick) to be retained and sold commercially, as well as to 
provide NMFS with an improved ability to sustainably manage the North 
Atlantic swordfish fishery.
    With respect to vessel permitting and authorized gears, NMFS 
considered three alternatives and four sub-alternatives, ranging from a 
no-action alternative, which maintains the current swordfish permit 
structure, to creating a new and/or modified commercial swordfish 
handgear permit. Alternative 1.1 would maintain the current swordfish 
limited access permit structure and would not create a new and/or 
modified commercial swordfish permit. Alternative 1.2, a preferred 
alternative, would establish a new open access commercial swordfish 
permit and modify existing open access HMS permits to allow for the 
commercial retention of swordfish. Current swordfish reporting 
requirements, including the submission of monthly logbooks if a vessel 
is selected for reporting, would apply to all of the sub-alternatives 
for Alternative 1.2. Sub-alternative 1.2.1 would modify the existing 
open access Atlantic Tunas General category permit to allow for the 
commercial retention of swordfish using handgears. Sub-alternative 
1.2.2 would modify the existing open-access Atlantic tunas Harpoon 
category permit to allow for the commercial retention of swordfish 
using harpoon. Sub-alternative 1.2.3, a preferred alternative, would 
modify the existing HMS Charter/Headboat permit holder requirements to 
allow fishing under open access swordfish commercial regulations (with 
rod and reel and handline only) when fishing commercially (i.e., not on 
a for-hire trip with paying passengers). Sub-Alternative 1.2.4, a 
preferred alternative, would create a new, separate open-access 
commercial swordfish permit to allow landings of swordfish using 
handgears. Alternative 1.3 would establish a new limited-access 
commercial swordfish permit that authorizes using rod and reel, 
handline, bandit gear, harpoon, and green-stick gear. Current swordfish 
reporting requirements, including the submission of monthly logbooks if 
a vessel is selected for reporting, would also apply under Alternative 
1.3.
    The preferred alternative and sub-alternatives for permitting (1.2, 
1.2.3, and 1.2.4) are anticipated to have minor to neutral ecological 
impacts in the short and long-term. However, these alternatives could 
result in a minor increase in rod and reel, handline, harpoon, bandit 
gear, and green-stick gear commercial fishing effort if previously 
inactive fishermen obtain the new and modified permits and begin 
fishing. Preferred Alternatives 1.2.3 and 1.2.4 could also cause a 
minor increase in swordfish discards and discard mortality if fishing 
effort increases in areas with large concentrations of swordfish. 
Although the preferred alternative would establish a new open-access 
commercial swordfish permit, NMFS expects that most new permit 
applicants would be current recreational swordfish fishery participants 
with HMS Angling category permits, resulting in a shift of effort from 
the recreational fishery to the commercial fishery. Some current 
Atlantic Tunas

[[Page 12276]]

General category and Harpoon category permit holders could also obtain 
the new permit, and current HMS Charter/Headboat permit holders' 
existing permits would be modified to allow them to fish commercially 
for swordfish with rod and reel and handline on non for-hire trips. 
These permit holders would likely participate in the commercial 
swordfish fishery to supplement their primary fishing activities (i.e., 
tuna fishing and charter fishing). All new commercial swordfish fishery 
participants would be restricted to using only authorized handgears and 
would be required to comply with applicable regional retention limits 
(ranging from zero to six swordfish per vessel per trip). Thus, NMFS 
anticipates only a minor increase in overall swordfish fishery effort 
because of the low proposed retention limits and the authorization of 
handgears exclusively. Overall, NMFS anticipates that direct and 
indirect, short- and long-term ecological impacts on swordfish, non-
target species, ESA-protected species, essential fish habitat, and 
marine mammals from handgear and green-stick gear would be minor to 
neutral, primarily because these gears are closely tended and rarely 
interact with benthic habitat.
    Swordfish handgear is very selective because it is deployed at 
times, depths, and locations where swordfish, as opposed to other 
coastal species, are typically encountered. Hooks and bait are designed 
to target large pelagics exclusively. Thus, bycatch in the fishery is 
very low and bycatch mortality is presumably low as well, with most 
non-target species released immediately. Any landings associated with 
the new or modified permits would be reported through weekly dealer 
reports to ensure that they remain within the ICCAT-recommended U.S. 
swordfish quota, which has already been analyzed.
    The effects of most handgear fishing on ESA-listed species was most 
recently analyzed under a Biological Opinion (BiOp) issued on June 14, 
2001, entitled ``Reinitiation of Consultation on the Atlantic Highly 
Migratory Species Fishery Management Plan and its Associated 
Fisheries'' (http://www.nmfs.noaa.gov/sfa/hms/HMS060801.pdf). In the 
2001 BiOp, NMFS indicated that it anticipates that, because the 
potential for take in these fisheries (i.e., harpoon/handgear 
fisheries, hook and line, etc.) was low, the continued operation of 
these fisheries would result in documented takes of no more than three 
ESA-listed sea turtles, of any species, in combination, per calendar 
year. Additionally, the Atlantic HMS hook and line/harpoon fishery and 
green-stick fishery are classified as Category III under the MMPA (76 
FR 73912, November 29, 2011), meaning that these fisheries have a 
remote likelihood of incidental mortality or serious injury to marine 
mammals. Also, as described in Amendment 1 to the Consolidated HMS FMP 
(74 FR 28018, June 12, 2009), minimal impacts on EFH are anticipated 
because handgears are deployed in the water column and rarely interact 
with ocean bottom substrate. Some handgears such as rod and reel and 
bandit gear may have the ability to contact the ocean bottom, depending 
upon the method selected to fish; however, this contact was determined 
to not produce significant effects on EFH, including benthic habitats. 
Overall, the swordfish handgear fishery has negligible adverse physical 
impacts on mid-water environments, the substrate, and most sensitive 
benthic habitats. For this reason, Alternative 1.2 is anticipated to 
have neutral short- and long-term ecological impacts in the Atlantic. 
Under Alternative 1.2, NMFS considers four sub-alternatives. Ecological 
impacts on target, non-target, and ESA-protected species, marine 
mammals, and EFH would be the same as Alternative 1.2 under each of the 
four sub-alternatives.
    The preferred alternatives and sub-alternatives for permitting 
(1.2, 1.2.3, and 1.2.4) are expected to have direct economic benefits 
in the short- and long-term through increased opportunities to 
commercially fish for swordfish, and through increased gross revenues 
from swordfish sales for fishermen that obtain the new permit, or for 
HMS Charter/Headboat permit holders that could fish commercially for 
swordfish on non for-hire trips. Indirect minor beneficial economic 
impacts are expected in the short- and long-term for seafood dealers, 
marinas, bait, tackle, and ice suppliers, restaurants, and similar 
establishments which could experience a minor increase in sales due to 
increased participation in the commercial swordfish fishery. There may 
be potential short- and long-term negative economic impacts on existing 
swordfish limited access permit holders due to a reduction in permit 
values and ex-vessel swordfish prices, but any such impacts are 
expected to be minor due to the low retention limits being established 
for the new and modified permits. Swordfish retention limits for 
existing limited access permit holders are much higher or, in some 
cases, unlimited. NMFS has proposed low retention limits for the new 
and modified permits, in part to help maintain the value of existing 
limited access permits.
    NMFS considered three main alternatives and five sub-alternatives 
with respect to swordfish retention limits applicable to the new and 
modified permits. Alternative 2.1 would establish a fishery-wide zero-
to-six swordfish retention limit range for the new and modified 
permits, and codify a specific fishery-wide retention limit within that 
range. The upper limit, for this alternative and all others, is equal 
to the current maximum swordfish retention limit for the open access 
HMS Charter/Headboat permit with six paying passengers onboard. 
Alternative 2.2 would establish a fishery-wide zero-to-six swordfish 
retention limit range for the new and modified permits, and codify a 
specific fishery-wide retention limit within that range with in-season 
adjustment authority to change the limit based on pre-established 
criteria (e.g., dealer reports, landing trends, available quota, 
variations in seasonal distribution, abundance, or migration patterns, 
etc.).
    Alternative 2.3, a preferred alternative, would establish a zero-
to-six swordfish retention limit range for the new and modified 
permits, and establish swordfish management regions with specific 
retention limits with authority to adjust the regional retention limits 
in-season based on pre-established criteria (e.g., dealer reports, 
landing trends, available quota, variations in seasonal distribution, 
abundance, or migration patterns, etc.). For all of the sub-
alternatives under Alternative 2.3, NMFS is proposing to require that 
vessels may not possess, retain, or land any more swordfish than is 
specified for the region in which the vessel is located. For swordfish 
captured outside of the regions, vessels may not land any more 
swordfish than is specified for the region in which the swordfish are 
landed. This restriction will aid in the effectiveness and enforcement 
of the proposed retention limits by ensuring that vessels comply with 
the retention limits associated with the region in which they are 
located and in which the fish are landed.
    Alternative 2.3 has five sub-alternatives, which consider different 
geographic options for the swordfish management regions.
    Sub-alternative 2.3.1 would base the regions upon existing major 
United States domestic HMS fishing areas as reported to ICCAT 
(Northeast Distant area (NED), Northeast Coastal area (NEC), Mid-
Atlantic Bight area (MAB), South Atlantic Bight (SAB), Florida East 
Coast (FEC), Gulf of Mexico (GOM),

[[Page 12277]]

Caribbean (CAR), and the Sargasso Sea (SAR)).
    Sub-alternative 2.3.2, a preferred alternative, would establish 
larger regions by merging the major domestic regions discussed in 
Alternative 2.3.1 into three larger regions (Northwest Atlantic, Gulf 
of Mexico, and Caribbean) and then adding a separate Florida Swordfish 
Management Area. NMFS is proposing to codify a retention limit of one 
swordfish per vessel per trip in the Florida Swordfish Management Area, 
two swordfish per vessel per trip in the Caribbean region (consistent 
with the swordfish retention limit for the U.S. Caribbean established 
in Amendment 4 to the 2006 Consolidated HMS FMP), and three swordfish 
per vessel per trip in the Northwest Atlantic and Gulf of Mexico 
regions. These regional retention limits fall within the range of zero 
to six swordfish discussed for all of the alternatives and, if 
selected, could be adjusted, either upward or downward, in the future 
through in-season adjustment procedures similar to those currently 
codified for bluefin tuna at Sec.  635.27 (a)(8).
    A one-fish initial default limit is proposed for the Florida 
Swordfish Management Area to provide for the orderly establishment of a 
small-scale commercial swordfish handgear fishery off Florida's east 
coast while potentially limiting the number of vessels participating 
and any associated ecological impacts. A two-fish initial default limit 
is proposed for the Caribbean region to be consistent with the limit 
recently implemented for the Caribbean Commercial Small Boat permit. 
The small-scale commercial HMS fishery in the Caribbean consists 
primarily of small vessels that are limited by hold capacity, crew 
size, trip length, fishing gears, and market infrastructure. A higher 
initial default limit of three swordfish per vessel per trip is being 
proposed for the Northwest Atlantic and the Gulf of Mexico to 
compensate for higher operating costs in these regions because a 
greater distance is required to travel to productive fishing grounds. A 
three-fish retention limit is in the middle of the range being 
considered for all of the alternatives. NMFS believes it is an 
appropriate default limit for these regions, based upon the size and 
hold capacity of most vessels participating in the swordfish handgear 
fishery. For many small- to medium-sized vessels, three swordfish would 
be considered a successful trip. It could become difficult to properly 
handle and store more than three large swordfish aboard a smaller 
vessel to ensure that the product maintains its quality and safety. The 
initial proposed default retention limits are purposefully conservative 
for the proposed implementation of a new open-access swordfish permit. 
As additional fishery information becomes available, they could be 
reconsidered in the future. For these reasons, NMFS proposes initial 
default limits of one, two, and three swordfish for the Florida 
Swordfish Management Area, Caribbean region, and the Northwest Atlantic 
and Gulf of Mexico regions, respectively. There are three different 
sub-alternatives that consider a potential Florida Swordfish Management 
Area (under sub-alternative 2.3.2).
    Sub-alternative 2.3.2.1, a preferred sub-alternative, would 
establish a Florida Swordfish Management Area in the Atlantic Ocean 
area seaward of the inner boundary of the U.S. EEZ from a point 
intersecting the inner boundary of the U.S. EEZ at 31[deg]00' N. lat. 
near Jekyll Island, GA, and proceeding due east to connect by straight 
lines the following coordinates in the order stated: 31[deg]00' N. 
lat., 78[deg]00' W. long.; 28[deg]17'10'' N. lat., 79[deg]11'24'' W. 
long.; then proceeding along the outer boundary of the EEZ to the 
intersection of the EEZ with 24[deg]00' N. lat.; then proceeding due 
west to 24[deg]00' N. lat., 82[deg]0' W. long, then proceeding due 
north to intersect the inner boundary of the U.S. EEZ at 82[deg]0' W. 
long. near Key West, FL. This management area also includes the area 
west of Monroe County, Florida, from 82[deg]0' W. long., 25[deg]48' N. 
lat.; then proceeding clockwise east along the inner boundary of the 
U.S. EEZ to a point located at 82[deg]0' W. long., 24[deg]46' N. lat.; 
and then proceeding due north to 82[deg]0' W. long., 25[deg]48' N. lat.
    Sub-alternative 2.3.2.2 would establish a Florida Swordfish 
Management Area in Federal waters extending from the Georgia-Florida 
border to Federal waters off the westernmost tip of Key West, FL 
(81[deg]48' W longitude).
    Sub-alternative 2.3.2.3 would establish a Florida Swordfish 
Management Area in Federal waters adjacent to the Florida counties of 
St. Lucie, Martin, Palm Beach, Broward, Dade and Monroe (including the 
Federal waters of Florida Bay).
    The creation of a special swordfish management area off Florida is 
expected to have positive ecological impacts. The east coast of 
Florida, and in particular the Florida Straits, contains one of the 
richest concentrations of marine life in the Atlantic Ocean. A 2003 
United Nations Food and Agriculture Organization study stated that the 
Florida Straits had the highest biodiversity in the Atlantic Ocean, and 
is home to 25 endemic species. A special swordfish management area with 
a lower retention limit is being considered due to its unique 
importance as juvenile swordfish habitat and as a migratory corridor. 
This area was closed to pelagic longline gear in 2001 to reduce the 
bycatch of several species. It provides important habitat for many 
highly migratory species and protected species, including swordfish, 
marlin, sailfish, sea turtles and marine mammals. A separate Florida 
Swordfish Management Area would help to conserve juvenile and adult 
swordfish in and near the Florida Straits and help to reduce gear 
conflicts that could potentially occur due to the large number of 
fishermen in, and in proximity to, the area. Comments received from the 
public and the HMS Advisory Panel indicated a concern about increased 
fishing mortality in this area. For these reasons, NMFS is proposing a 
low default initial retention limit of one swordfish per vessel per 
trip in this area. This low retention limit would provide for the 
orderly establishment of a small-scale commercial swordfish handgear 
fishery off Florida's east coast while potentially limiting the number 
of vessels participating and any associated ecological impacts, 
including swordfish discards, discard mortality, and the incidental 
catch of non-target and protected species.
    Preferred sub-alternative 2.3.2.1 would establish swordfish 
management regions in the Northwest Atlantic, Gulf of Mexico, 
Caribbean, and a Florida Swordfish Management Area encompassing the 
East Florida Coast Pelagic Longline Closed Area and Federal waters 
adjacent to Monroe County, FL (including Florida Bay). This preferred 
sub-alternative would also establish a zero-to-six swordfish retention 
limit range within each region for the new and modified permits and 
codify specific regional retention limits with authority to adjust the 
regional limits in-season based on pre-established criteria. 
Establishing unique swordfish regions would allow NMFS to tailor 
management practices geographically to the specific biological and 
other factors affecting a particular region, and would likely have 
positive direct and indirect ecological benefits. Providing authority 
to adjust the regional swordfish retention limits in-season (from zero 
to six fish) using regulatory procedures similar to those codified for 
bluefin tuna at Sec.  635.27 (a)(8) would provide NMFS with the ability 
to quickly modify the retention limit, so any potential adverse 
ecological impacts (e.g., higher than

[[Page 12278]]

anticipated landings) that are detected could be addressed 
expeditiously, as necessary.
    The six-fish limit is equivalent to the current maximum swordfish 
retention limit for the open-access HMS Charter/Headboat permit with 
six paying passengers onboard. If the regional retention limit is set 
at zero, no change in fishing effort or ecological impacts is 
anticipated. If the regional limit is set at any level above zero, sub-
alternative 2.3.2.1 could provide for the additional harvest of 
swordfish--a species that is fully rebuilt and of which the U.S. quota 
has not been fully caught in recent years. It could cause a minor 
increase in rod and reel, handline, harpoon, bandit gear, and green-
stick commercial fishing effort if previously inactive fishermen obtain 
the new and modified permits and begin fishing. Also, this sub-
alternative could cause a minor increase in swordfish discards and 
discard mortality if fishing effort increases substantially in areas 
with large concentrations of juvenile swordfish. For these reasons, 
NMFS is proposing low initial default swordfish retention limits for 
the new and modified permits, including a one-fish limit in the Florida 
Swordfish Management Area.
    Overall, NMFS anticipates only neutral to minor ecological impacts 
on ESA-listed species, non-target species, marine mammals, and 
undersized swordfish associated with all of the preferred alternatives 
and sub-alternatives. As indicated in the June 14, 2001 BiOp issued for 
the Atlantic HMS handgear fishery, since the potential for takes in 
these fisheries (i.e., harpoon/handgear fisheries, hook and line, etc.) 
is low, NMFS anticipates that the continued operation of these 
fisheries would result in documented takes of no more than three ESA-
listed sea turtles, of any species, in combination, per calendar year. 
Additionally, the Atlantic swordfish and pelagic hook and line/harpoon 
fisheries are classified as Category III under the Marine Mammal 
Protection Act (MMPA), meaning that these fisheries have a remote 
likelihood of incidental mortality or serious injury to marine mammals 
(see MMPA List of Fisheries for 2012, 76 FR 73912, November 29, 2011). 
Finally, minimal impacts on EFH are anticipated from the preferred 
alternatives because handgears rarely interact with the ocean bottom 
substrate or benthic habitat.
    Establishing regions under preferred alternative 2.3.2 would allow 
NMFS to address region-specific management concerns. Providing NMFS 
with in-season adjustment authority would allow for timely adjustments 
to regional retention limits; however, it could provide less certainty 
than Alternative 2.1 to fishermen and law enforcement regarding changes 
to the swordfish retention limit. Conversely, positive economic 
benefits could occur if the retention limit were adjusted upward based 
upon information indicating that ample quota was available, or upon 
other pre-established criteria. Generally, the impacts associated with 
a region would depend upon its size, the number of fishery participants 
in the region, and the swordfish retention limits established for the 
region.
    Establishing a retention limit range of zero to six swordfish is 
anticipated to provide a seasonal, or secondary, fishery for most 
participants. For example, current Atlantic tunas General category 
permit holders could fish for swordfish overnight while targeting 
bluefin tuna at other times. Similarly, they could harpoon a swordfish 
if one were spotted during a tuna trip. A zero-to-six fish retention 
limit range is not likely to facilitate a full-time, year-round 
fishery, with the possible exception of some fishery participants in 
south Florida, where swordfish can be available on a year-round basis. 
However, it would provide some fishermen with the ability to 
commercially land swordfish, thereby resulting in positive economic 
benefits if the limit were set above zero. If a regional retention 
limit is set at zero, no change in socio-economic impacts is 
anticipated. The Agency received some comments, particularly in 
response to the 2009 ANPR, raising concerns about the potential for 
over-capitalization to occur in the swordfish fishery, potentially 
leading to depressed market prices and other adverse socio-economic 
impacts. Increasing the number of swordfish permits and the amount of 
swordfish in the market could potentially reduce the value of existing 
swordfish limited access permits and ex-vessel swordfish prices. 
However, any potential negative impacts on current swordfish limited 
access permit holders are expected to be mitigated by establishing 
lower retention limits for the new open-access permit than those that 
exist for swordfish limited access permits.
    For preferred sub-alternative 2.3.2.1, NMFS proposes an initial 
swordfish retention limit of one per vessel per trip for the Florida 
Swordfish Management Area, two swordfish per vessel per trip for the 
U.S. Caribbean, and three swordfish per vessel per trip for the 
Northwest Atlantic and Gulf of Mexico. These limits fall within the 
range discussed under Alternative 2.3 above, and could be modified in 
the future using in-season adjustment procedures similar to those 
codified at Sec.  635.27(a)(8). Under all of the retention limit 
alternatives, NMFS anticipates direct and indirect positive economic 
benefits if the limits are set above zero.

Administrative Adjustments

    There are two regulatory administrative adjustments in this 
proposed rule. NMFS is proposing to remove a portion of the last 
sentence in Sec.  635.4(j)(3), which contains outdated language 
referencing dates in 2008. Also, NMFS proposes to update a telephone 
number for the HMS Division Chief in the definitions at Sec.  635.2. 
These administrative adjustments would have no impact on the public or 
the environment.

Request for Comments

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted at a 
public hearing (see Public Hearings and Special Accommodations below). 
These comments will be used to assist in the development and 
finalization of Amendment 8 to the Consolidated HMS FMP. NMFS solicits 
comments on this proposed rule by April 23, 2013 (see DATES and 
ADDRESSES).
    NMFS requests specific public comment on the following issues:
    (1) What are the appropriate boundaries for the regions and for the 
Florida Swordfish Management Area?
    (2) What are appropriate swordfish retention limits under the new 
and modified permits? For all vessels issued the new and modified 
permits under preferred sub-alternative 2.3.2, should NMFS implement 
initial retention limits of one swordfish per vessel per trip for the 
Florida Swordfish Management Area, two swordfish per vessel per trip 
for the U.S. Caribbean, and three swordfish per vessel per trip limit 
for the Northwest Atlantic and Gulf of Mexico regions?
    (3) Are the criteria for inseason adjustment of the regional 
retention limits proposed at Sec.  635.24 (b)(4)(iv) sufficiently 
inclusive?
    (4) Is the proposed requirement to comply with the regional 
swordfish retention limits both at sea and upon landing at Sec.  
635.24(b)(4)(ii) clear and sufficient for the purposes of this 
rulemaking?

Public Hearings and Special Accommodations

    NMFS will hold public hearings in Massachusetts, Florida (2), 
Maryland, and hold a public conference call and webinar to provide the 
public with an opportunity to comment on the proposed management 
measures. NMFS

[[Page 12279]]

will also hold a public conference call and webinar to consult with the 
HMS AP. NMFS expects to consult with the HMS AP on April 18, 2013, as 
the scheduled public comment period does not overlap with an HMS 
Advisory Panel meeting. These public hearings may be combined with 
public hearings for other relevant highly migratory species management 
actions. These public hearings will be physically accessible to people 
with disabilities.

                  Table 1--Time and Locations of Upcoming Public Hearings and Phone Conferences
----------------------------------------------------------------------------------------------------------------
             Date                          Time              Meeting locations               Address
----------------------------------------------------------------------------------------------------------------
March 11, 2013...............  1:00-3:00 p.m...............  Public Conference  To participate in conference
                                                              Call & Webinar.    call, call: (800) 369-8439
                                                                                 Passcode: 69854. To participate
                                                                                 in webinar, RSVP at: https://www1.gotomeeting.com/register/958913664 958913664 A confirmation email
                                                                                 with webinar log-in information
                                                                                 will be sent after RSVP is
                                                                                 registered.
March 11, 2013...............  5:00-7:00 p.m...............  NMFS Southeast     263 13th Avenue South, St.
                                                              Regional Office    Petersburg, FL 33701.
                                                              (SERO) 1st Floor  Phone: 727-824-5301.
                                                              Conference Room.
March 14, 2013...............  1:00-4:00 p.m...............  NMFS Headquarters  1301 East-West Highway, Silver
                                                              Science Center     Spring, MD 20910.
                                                              Auditorium.
March 28, 2013...............  5:30-7:30 p.m...............  NMFS Northeast     55 Great Republic Drive
                                                              Regional Office    Gloucester, MA 01930.
                                                              (NERO) 1st Floor  Phone: 978-281-9300.
                                                              Conference Room.
April 10, 2013...............  5:00-7:00 p.m...............  Broward County     100 South Andrews Ave., Fort
                                                              Main Library       Lauderdale, Florida 33301.
                                                              Auditorium.       Phone: 954-357-7544.
April 18, 2013...............  2:30-4:30 p.m...............  HMS Advisory       To participate in conference
                                                              Panel              call, call: (800) 369-8439,
                                                              Consultation       Passcode: 69854
                                                              Call.             To participate in webinar, RSVP
                                                                                 at: https://www1.gotomeeting.com/register/592965928 592965928 A confirmation email
                                                                                 with webinar log-in information
                                                                                 will be sent after RSVP is
                                                                                 registered.
----------------------------------------------------------------------------------------------------------------

    Requests for sign language interpretation or other auxiliary aids 
should be directed to Rick Pearson at (727) 824-5399 at least 7 days 
prior to the workshop date. The public is reminded that NMFS expects 
participants at public hearings, council meetings, and phone 
conferences to conduct themselves appropriately. At the beginning of 
each meeting, a representative of NMFS will explain the ground rules 
(e.g., alcohol is prohibited from the meeting room; attendees will be 
called to give their comments in the order in which they registered to 
speak; each attendee will have an equal amount of time to speak; 
attendees may not interrupt one another; etc.). The NMFS representative 
will structure the meeting so that all attending members of the public 
will be able to comment, if they so choose, regardless of the 
controversial nature of the subject(s). Attendees are expected to 
respect the ground rules, and those that do not will be asked to leave 
the meeting.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated Atlantic HMS FMP, 
Amendment 8 and other amendments to that FMP, the Magnuson-Stevens Act, 
ATCA, and other applicable law, subject to further consideration after 
public comment.
    NMFS prepared an environmental assessment that discusses the impact 
on the environment as a result of this rule. In this proposed action, 
NMFS is considering options to provide additional commercial swordfish 
fishing opportunities using selective fishing gears that have minimal 
bycatch and few discards to allow the United States to more fully 
utilize its domestic swordfish quota allocation. A copy of the 
environmental assessment is available from NMFS (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A summary of the analysis follows. A copy of 
this analysis is available from NMFS (see ADDRESSES).
    The proposed action is being considered to provide additional 
opportunities to harvest swordfish using selective gears that have low 
rates of bycatch, given the rebuilt status of the swordfish stock and 
resulting increased availability of swordfish and availability of U.S. 
quota. The goal is for the United States to more fully utilize its 
domestic swordfish quota allocation, which is based upon the 
recommendation of ICCAT, and provide economic benefits to U.S. 
fishermen with minimal adverse environmental impacts.
    Section 603(b)(2) of the RFA requires that we describe the action's 
objectives. This proposed rulemaking is intended to implement 
conservation and management measures that prevent overfishing while 
achieving, on a continuing basis, the optimum yield (OY) from the U.S. 
North Atlantic swordfish fishery; provide increased opportunities to 
more fully utilize the ICCAT-recommended domestic North Atlantic 
swordfish quota allocation; implement North Atlantic swordfish 
management measures to make fleet capacity commensurate with resource 
status; provide additional commercial fishing opportunities for U.S. 
fishermen using selective fishing gears that have minimal bycatch rates 
and maximize the survival of any released species; provide additional 
access for traditional swordfish fishing gears; implement regionally-
tailored North Atlantic swordfish management strategies, as 
appropriate; and, improve the Agency's ability to monitor and 
sustainably manage the North Atlantic swordfish fishery. The proposed 
action is consistent with the Magnuson-Stevens Act and the 2006 
Consolidated HMS FMP and its amendments to implement recommendations of 
ICCAT pursuant to ATCA and to achieve domestic management objectives 
under the Magnuson-Stevens Act.

[[Page 12280]]

    Section 603(b)(3) of the RFA requires Federal agencies to provide 
an estimate of the number of small entities to which the rule would 
apply. The current U.S. North Atlantic commercial swordfish fishery is 
comprised of 334 fishing vessel owners who hold either a limited access 
swordfish Handgear permit, or a limited access directed or incidental 
swordfish permit, and the related industries of seafood dealers and 
processors, fishing gear manufacturers and distributors, marinas, bait 
houses, restaurants, and other equipment suppliers. Specifically, the 
proposed rule would apply to small-scale handgear vessel owners that 
fish in the Atlantic Ocean, including the Gulf of Mexico and the U.S. 
Caribbean, that do not currently hold a commercial swordfish limited 
access permit. Using the number of current Atlantic tunas General 
category permit holders as a proxy, NMFS estimates that the universe of 
fishermen who might purchase and fish under a new commercial swordfish 
permit would be approximately 4,084 individuals, with some potential 
shift of fishermen currently permitted in the recreational HMS Angling 
category. These calculations are explained in greater detail below. 
This estimate is based upon the number of persons currently issued an 
Atlantic tunas General category permit, which is the commercial permit 
most similar to the ones being considered in the proposed action. NMFS 
used the following thresholds from the Small Business Administration 
(SBA) size standards to determine if an entity regulated under this 
action would be considered a small entity: 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. 
Based on these thresholds, NMFS determined that all HMS permit holders 
are small entities.
    This proposed rule contains new reporting, recordkeeping, or other 
compliance requirements. The proposed Federal open-access commercial 
swordfish handgear permit would allow NMFS to collect additional data 
regarding participants in the swordfish fishery and landings through 
Federal dealer reports. The new permit would require an application 
similar to some other current HMS permits. The information collected on 
the application would include vessel information and owner 
identification and contact information. A modest fee to process the 
application and annual renewal fee of approximately $25 may be 
required. The proposed rule also would also adopt standard commercial 
HMS permit reporting requirements for this permit. Currently, in 
Atlantic HMS fisheries, all commercial fishing vessels and Charter/
Headboat vessels are required to submit logbooks for all HMS trips if 
they are selected for reporting. Selected permit holders are required 
to submit logbooks to NMFS postmarked no later than seven days after 
unloading a trip. If no fishing activity occurred during a calendar 
month, a ``no fishing'' report must be submitted to NMFS, and be 
postmarked within seven days after the end of the month. Currently, the 
permits most similar to the ones being considered in this action (HMS 
Charter/Headboat, Atlantic tunas General category, and Atlantic tunas 
Harpoon category permit) are not selected for submitting logbooks, 
although they are eligible for selection.
    This proposed rule would 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 Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High 
Seas Fishing Compliance Act, the Marine Mammal Protection Act, the 
Endangered Species Act, the National Environmental Policy Act, the 
Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS does 
not believe that the proposed regulations duplicate, overlap, or 
conflict with any relevant regulations, Federal or otherwise.
    Under 5 U.S.C. 603(c), agencies are required to describe any 
alternatives to the proposed rule that accomplish the stated objectives 
and which minimize any significant economic impacts. These impacts are 
discussed below and in the draft Environmental Assessment for the 
proposed 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 the development of significant alternatives: (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 proposed rule, consistent 
with the Magnuson-Stevens Act, NMFS cannot exempt small entities or 
change the reporting requirements only for small entities because all 
the entities affected are considered small entities. Thus, there are no 
alternatives discussed that fall under the first and fourth categories 
described above. NMFS does not know of any performance or design 
standards that would satisfy the aforementioned objectives of this 
rulemaking while, concurrently, complying with the Magnuson-Stevens 
Act. Thus, there are no alternatives considered under the third 
category. All of the permit alternatives being considered, except for 
the no-action alternative, could result in additional reporting 
requirements (category two above) due to the issuance of new permits if 
new permit holders are selected for reporting. These are standard 
reporting requirements required of all HMS commercial permit holders. 
Thus, there are no alternatives discussed that fall under the second 
category described above. This proposed action would improve 
information collection by allowing NMFS to collect important fishery 
dependent data, if necessary, that could be used for quota monitoring 
and stock assessments.
    In this rulemaking, NMFS considered two different categories of 
issues to address swordfish management measures where each issue had 
its own range of alternatives and sub-alternatives that would meet the 
objectives of the Magnuson-Stevens Act and the 2006 Consolidated HMS 
FMP. The first category of alternatives (Alternatives 1.1-1.3 and sub-
alternatives) addresses swordfish permitting alternatives. The second 
category of alternatives (Alternatives 2.1-2.3 and sub-alternatives) 
addresses swordfish retention limits. The expected economic impacts 
these alternatives and sub-alternatives may have on small entities are 
summarized below. The full IRFA and all its analyses can be found in 
draft Amendment 8. In total, NMFS analyzed 15 different alternatives 
and sub-alternatives, and provided rationales for identifying the 
preferred alternatives. The seven permit alternatives range from 
maintaining the status quo for U.S. North Atlantic swordfish fisheries 
to creating a new commercial swordfish handgear permit and modifying 
the HMS Charter/Headboat permit to allow fishing for and sales of 
swordfish under specific limitations. NMFS analyzed eight alternatives 
that would allow NMFS to implement swordfish retention limits 
applicable to the new permit in a range from zero-to-six fish. Seven of 
these alternatives would allow NMFS to modify daily trip limits using 
in-season

[[Page 12281]]

adjustment procedures similar to those codified for bluefin tuna at 
Sec.  635.27(a)(8). NMFS assessed the impacts of the retention limit 
alternatives on both a fishery-wide basis and utilizing an approach 
which could be tailored on a regional basis.
    Alternative 1.1, the no action alternative, maintains the existing 
swordfish limited access permit program and would not establish a new 
swordfish permit. Under Alternative 1.1, NMFS does not anticipate any 
substantive change in economic impacts as the U.S. swordfish fishery is 
already operating under the current regulations. Entry into the 
commercial swordfish fishery would remain difficult due to high limited 
access permit costs and the current scarcity of available permits. In 
terms of available and unutilized swordfish quota, this alternative 
could contribute to a loss of potential income for fishermen who would 
like to fish commercially for swordfish, but are not able to obtain 
limited access permits. Under ATCA (16 U.S.C. 971 et. seq.) and the 
Magnuson-Stevens Act, NMFS is required to provide U.S. fishing vessels 
with a reasonable opportunity to harvest the ICCAT-recommended quota. 
Although there is sufficient quota to allow U.S. fishermen to catch 
more swordfish and remain within the ICCAT-recommended quota, current 
difficulties associated with obtaining a limited access permit may be a 
constraining factor. For this reason, the ``no action'' alternative is 
not preferred at this time.
    Alternative 1.2, a preferred alternative, would establish a new 
open-access commercial swordfish permit and modify existing open access 
HMS permits to allow for the commercial retention of swordfish using 
handgears. NMFS anticipates positive economic impacts for some U.S. 
fishermen under alternative 1.2. It would allow small-scale U.S. 
fishermen to use handgear (rod and reel, handline, harpoon, bandit 
gear, and green-stick), to fish for and commercially sell a limited 
amount of swordfish (zero to six fish per vessel per trip) to permitted 
swordfish dealers. This alternative would reduce economic barriers to 
the commercial swordfish fishery, provide more opportunities to fish 
commercially for swordfish, and potentially provide economic benefits 
to some fishermen. For example, if a new entrant landed 10 swordfish 
per year under this alternative, they could realize an increase in 
annual gross revenues of approximately $4,329.60. One trip landing six 
swordfish could yield $2,598 in gross revenues.
    NMFS received comments from some current swordfish limited access 
permit holders during public meetings to discuss the 2009 ANPR (74 FR 
26174, June 1, 2009) expressing concern that establishing a new 
swordfish permit could reduce ex-vessel swordfish prices and the value 
of existing limited access swordfish permits. It is not possible to 
precisely predict the number of new applicants for open access 
commercial swordfish permits, but NMFS expects that some current 
recreational fishermen with HMS Angling permits will remain 
recreational, rather than shift to commercial fishing. There are 
numerous commercial fishing vessel safety requirements and management 
regulations to comply with when operating a commercial fishing business 
that may discourage some recreational fishermen from obtaining a 
commercial permit. Under the proposed regulations, similar to the 
regulations that apply to the Atlantic tunas General category permit, 
fishermen issued a new Swordfish General Commercial permit would not be 
able to obtain an HMS Angling category permit. Therefore, a 
recreational fisherman who obtains a Swordfish General Commercial 
permit would forfeit the ability to fish for Atlantic billfishes, 
unless they are fishing in a registered HMS tournament, because fishing 
for these species is permissible only when issued an HMS Angling or 
Charter/Headboat permit. Additionally, the ability to fish 
recreationally for Atlantic tunas and sharks would be forfeited unless 
they are fishing in a registered HMS tournament or hold appropriate 
commercial tuna and/or shark permits. Negative impacts on current 
swordfish limited access permit holders could be mitigated by 
establishing lower retention limits for the new open access permit than 
the limits that currently exist for limited access permits. NMFS 
prefers Alternative 1.2 at this time, because it would increase access 
to the commercial swordfish fishery, would have positive socio-economic 
impacts for fishermen who are currently unable to obtain a swordfish 
limited access permit, and would have neutral to minor ecological 
impacts. Additionally, this alternative would provide increased 
opportunities to more fully utilize the ICCAT-recommended domestic 
North Atlantic swordfish quota allocation and thus could have long-term 
benefits to all swordfish fisherman by improving the United States' 
position with regard to maintaining its quota share at ICCAT.
    Sub-alternative 1.2.1 would modify the existing open-access 
Atlantic tunas General category permit to allow for the commercial 
retention of swordfish using handgears (rod and reel, handline, 
harpoon, bandit gear, and green-stick) and rename the modified permit 
as, potentially, the Atlantic tunas and swordfish General category 
permit. It would result in many of the same socio-economic impacts as 
Alternative 1.2. In addition, sub-alternative 1.2.1 would minimize the 
costs associated with obtaining the new swordfish permit for persons 
that have already been issued the Atlantic Tunas General category 
permit because they would only need to obtain one permit rather than 
two.
    Sub-alternative 1.2.2 would modify the existing open-access 
Atlantic tunas Harpoon category permit to allow for the commercial 
retention of swordfish using harpoon gear. This alternative would 
result in many of the same impacts as Alternative 1.2. Additionally, it 
would minimize the costs associated with obtaining the new permit for 
persons that have already been issued the Atlantic Tunas Harpoon 
category permit because they would only need to obtain one permit 
rather than two. Specifically, it would provide economic benefits to 
current Atlantic tunas Harpoon category permit holders that want to 
both harpoon swordfish and also fish for tunas under Atlantic tunas 
Harpoon category regulations.
    Sub-alternative 1.2.3, a preferred alternative, would allow HMS 
Charter/Headboat permit holders to fish under open access swordfish 
commercial regulations using rod and reel and handlines when fishing 
commercially (i.e., not on a for-hire trip with paying passengers). It 
would result in many of the same impacts as Alternative 1.2 and provide 
economic benefits to CHB permit holders when fishing commercially 
(i.e., not on a for-hire trip). It could also streamline permit 
issuance because CHB vessels would not need to obtain another permit.
    Sub-alternative 1.2.4, a preferred alternative, would create a 
separate open access commercial swordfish permit to allow landings 
using handgear. This alternative would have similar impacts as 
Alternative 1.2, above. However, it would increase the costs associated 
with obtaining the permit for persons that have already been issued an 
Atlantic Tunas General or Harpoon category permit. This alternative 
would not streamline permit issuance for persons that want to 
commercially fish for both tunas and swordfish, because they would need 
to obtain two different permits to conduct these activities. NMFS 
prefers sub-alternative 1.2.4 at this time, because it would increase 
access to the commercial swordfish fishery, would have positive socio-
economic impacts for fishermen who are currently unable

[[Page 12282]]

to obtain a swordfish limited access permit, and would have neutral to 
minor ecological impacts. Additionally, sub-alternative 1.2.4 would 
better enable NMFS to differentiate between tuna and swordfish handgear 
fishermen in order to better monitor and assess these fisheries.
    Alternative 1.3 would allow for an unspecified number of new 
swordfish limited access permits to be issued. Depending upon the 
qualification criteria, this alternative could improve access to the 
fishery and provide economic benefits to some fishermen that qualify 
for the new limited access permit. However, it could also adversely 
affect some fishermen who do not qualify for a limited access permit. 
This alternative could limit any negative economic and social impacts 
on current commercial swordfish limited access permit holders by 
limiting the number of new swordfish permits issued. Selection of this 
alternative may require, among other things, the establishment of 
qualification criteria, control dates, application deadlines, 
application procedures, and grievance/appeals procedures for persons 
who have initially been determined as not eligible to qualify for a 
limited access permit. These aspects could increase administrative 
costs for NMFS and increase the reporting burden for the public to 
demonstrate that they meet qualifying criteria.
    Alternative 2.1 would establish a fishery-wide zero to six 
swordfish retention limit range for the new and modified permits, and 
codify a specific retention limit within that range. This alternative 
could provide some fishermen with the ability to commercially land 
swordfish, thereby resulting in positive economic benefits if the limit 
were set above zero. Additionally, economic benefits are anticipated 
for swordfish dealers and processors, fishing tackle manufacturers and 
suppliers, bait suppliers, restaurants, marinas, and fuel providers. 
NMFS anticipates a retention limit range of zero-to-six swordfish would 
provide a seasonal, or secondary, fishery for most participants. This 
alternative is not expected to facilitate a year-round fishery in most 
areas, with the possible exception of south Florida, where swordfish 
can be available year-round. There is a notable difference in the ex-
vessel revenue produced by a one swordfish/trip limit versus a six 
swordfish/trip limit. A single swordfish is estimated to be worth 
$432.96 ex-vessel, on average, whereas six swordfish would produce 
$2,597.76 ex-vessel. For a vessel making 10 trips per year and 
retaining the maximum allowable number of swordfish on each trip, 
annual gross revenue derived from swordfish would range from $4,329.60 
under a one-fish limit to $25,977.60 under a six-fish limit. Codifying 
a single coast-wide swordfish retention limit would provide certainty 
to both fishermen and law enforcement regarding the swordfish retention 
limit for the new open access permit. However, this alternative would 
not provide in-season adjustment authority to quickly modify the 
swordfish retention limit regionally by using pre-established criteria 
and thus would limit NMFS' management flexibility.
    Alternative 2.2 would establish a coast-wide zero-to-six swordfish 
retention limit range for the new and modified permits and codify a 
specific retention limit within that range. In addition, it would 
provide in-season adjustment authority for NMFS to modify the swordfish 
retention limit within the range (zero to six) using in-season 
adjustment procedures similar to those codified at Sec.  635.27 (a)(8). 
This alternative would have the same social and economic impacts as 
Alternative 2.1, but would provide less certainty to fishermen and law 
enforcement regarding possible in-season changes to the swordfish 
retention limit. Positive economic benefits could occur if the 
retention limit was increased during the fishing season based upon 
information indicating that sufficient quota was available, or upon 
other pre-established criteria.
    Alternative 2.3, a preferred alternative, would establish swordfish 
management regions and a zero-to-six swordfish retention limit range 
within each region for the new and modified permits and codify specific 
regional limits within that range with authority to adjust the regional 
limits in-season based on pre-established criteria. This alternative 
would have similar social and economic impacts as Alternative 2.1. If a 
regional retention limit is set at zero, NMFS expects no change in 
socio-economic impacts. If a regional limit is set at any level above 
zero, this alternative could provide economic benefits to some 
commercial handgear fishermen if they were previously inactive and 
obtain the new and modified permits and begin fishing. NMFS prefers 
Alternative 2.3 at this time, because it would allow swordfish 
retention limits to be quickly modified using in-season adjustment 
authority and provide additional flexibility to manage swordfish 
regionally.
    Sub-Alternative 2.3.1 would establish regions based upon existing 
major U.S. domestic fishing areas as reported to ICCAT (Northeast 
Distant area, Northeast Coastal area, Mid-Atlantic Bight area, South 
Atlantic Bight area, Florida East Coast area, Gulf of Mexico area, 
Caribbean area, and the Sargasso Sea area). Socio-economic impacts 
would be the same as Alternative 2.3 above. If this sub-alternative 
were implemented, NMFS is considering an initial swordfish retention 
limit of one swordfish per vessel per trip for the Florida East Coast 
area, two swordfish per vessel per trip for the Caribbean area, and a 
limit of three swordfish per vessel per trip for the Northwest Atlantic 
and Gulf of Mexico regions. For vessels making 10 trips per year and 
retaining the maximum allowable limit on each trip, annual gross 
revenue derived from swordfish would range from $4,329.60 under a one-
fish limit, $8,659.20 under a two-fish limit, and $12,988.80 under a 
three-fish limit.
    Sub-Alternative 2.3.2, a preferred alternative, would establish 
larger regions than sub-alternative 2.3.1, with the addition of a 
separate Florida Swordfish Management Area (Northwest Atlantic, Gulf of 
Mexico, Caribbean, and a Florida Swordfish Management Area as defined 
below). Under this sub-alternative, swordfish management measures could 
still be tailored geographically to the biological factors affecting a 
particular region; however, the regions would be larger (with the 
possible exception of the separate Florida Swordfish Management Area). 
Under this alternative, NMFS would propose an initial swordfish 
retention limit of one swordfish per vessel per trip for the Florida 
Swordfish Management Area, two swordfish per vessel per trip for the 
Caribbean area, and a limit of three swordfish per vessel per trip for 
the Northwest Atlantic and Gulf of Mexico regions. These retention 
limits fall within the range discussed under Alternative 2.3 above, and 
could be modified in the future using in-season adjustment procedures 
similar to those codified at Sec.  635.27(a)(8). For a vessel making 10 
trips per year and retaining the maximum allowable limit on each trip, 
annual gross revenue derived from swordfish would range from $4,329.60 
under a one-fish limit, $8,659.20 under a two-fish limit, and 
$12,988.80 under a three-fish limit.
    To estimate the number of entities affected by a special Florida 
Swordfish Management Area, NMFS first determined the number of Atlantic 
tunas General category permits issued. In 2011, there were 4,084 
Atlantic tunas General category permits issued. This number was used as 
a proxy to estimate the total number of new Swordfish General 
Commercial permits that could be issued fishery-wide. In 2011, 44

[[Page 12283]]

percent of all Directed and Incidental swordfish limited access permits 
were issued in Florida. Additionally, in 2011, 63 percent of all 
swordfish Handgear limited access permits were issued in Florida. 
Taking the average of these two numbers provided an estimate of 53.5 
percent, which is used as an estimate of the percent of new swordfish 
permits that could be issued in Florida. Using an estimated rate of 
53.5 percent of 4,084 potential new permits provides an estimate of 
2,185 potential new commercial swordfish handgear permits that could be 
issued in Florida. Assuming that two-thirds of these permits are issued 
to vessels on the east coast of Florida, potentially 1,455 new open-
access swordfish permits could be issued on the east coast of Florida 
(0.666 * 2,185 = 1,455).
    Sub-Alternative 2.3.2.1, a preferred alternative, would establish a 
Florida Swordfish Management Area that includes the East Florida Coast 
pelagic longline closed area through the northwestern boundary of 
Monroe County, FL, in the Gulf of Mexico (see Sec.  635.2 for bounding 
coordinates). Approximately 1,455 new permit holders could derive up to 
$4,329.60 annually under a one-fish limit, assuming they each took 10 
trips per year and landed one fish on each trip. NMFS prefers sub-
alternative 2.3.2.1 at this time, because it provides flexibility to 
manage the Florida commercial handgear swordfish fishery using 
boundaries that are already established and which correspond to an area 
that provides important habitat for many HMS and protected species, 
including swordfish, marlin, sailfish, sea turtles, and marine mammals. 
This area is also very accessible for large numbers of commercial and 
recreational fishing vessels.
    Sub-Alternative 2.3.2.2 would establish a Florida Swordfish 
Management Area that extends from the Georgia/Florida border to Key 
West, FL. This area is larger than, and includes, the East Florida 
Coast pelagic longline closed area. Therefore, the economic impacts 
described for sub-alternative 2.3.2.1 would also occur within this 
area. Additionally, because this special management area would be 
larger than sub-alternative 2.3.2.1, slightly more than 1,455 vessels 
could potentially be affected by a one-fish retention limit.
    Sub-Alternative 2.3.2.3 would establish a Florida Swordfish 
Management Area that includes the Florida counties of St. Lucie, 
Martin, Palm Beach, Broward, Dade, and Monroe. This area is smaller 
than the previous two sub-alternatives, but specifically includes 
oceanic areas with concentrations of swordfish that are readily 
accessible to many anglers. Because this special management area would 
be smaller than the areas in sub-alternative 2.3.2.1, slightly fewer 
than 1,455 vessels would potentially be affected by the one-swordfish 
per vessel per trip retention limit.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. This collection-of-information 
requirement would modify an existing (0648-0327) collection subject to 
review and approval by OMB under the Paperwork Reduction Act (PRA). 
Public reporting burden for a new Swordfish General Commercial permit 
is estimated to average 30 minutes per application. This burden 
estimate includes the time for reviewing instructions, gathering and 
maintaining the data needed, submitting the permit application, and 
completing and reviewing the collection information. On an annual 
basis, the new Swordfish General Commercial permit would increase the 
existing collection by 4,084 respondents/responses, 2,042 hours, and 
costs by $81,706. In total, 0648-0327 would include 41,261 responses/
respondents, 11,843 hours, and cost $738,917 per year. Public comment 
is sought regarding: Whether this proposed collection of information is 
necessary for the proper performance of the functions of NMFS, 
including whether the information shall have practical utility; the 
accuracy of the burden estimate; ways to enhance the quality, utility, 
and clarity of the information to be collected; and ways to minimize 
the burden of the collection of information, including through the use 
of automated collection techniques or other forms of information 
technology. Send comments on these or any other aspects of the 
collection of information to Michael Clark, the Highly Migratory 
Species Management Division, at the ADDRESSES above, 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.

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, Penalties, Reporting and 
recordkeeping requirements, Retention limits.

    Dated: February 14, 2013.
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 proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

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

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

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


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

                        IX--Secretary of Commerce
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                                * * * * *
A. Swordfish handgear fishery.............  A. Rod and reel, harpoon,
                                             handline, bandit gear, buoy
                                             gear, green-stick 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.  635.2, revise the definition for ``Division Chief'' and add 
the definition for ``Florida Swordfish Management Area'' in 
alphabetical order to read as follows:

[[Page 12284]]

Sec.  635.2  Definitions.

* * * * *
    Division Chief means the Chief, Highly Migratory Species Management 
Division, NMFS (F/SF1), 1315 East-West Highway, Silver Spring, MD, 
20910; (301) 427-8503.
* * * * *
    Florida Swordfish Management Area means the Atlantic Ocean area 
seaward of the inner boundary of the U.S. EEZ from a point intersecting 
the inner boundary of the U.S. EEZ at 31[deg]00' N. lat. near Jekyll 
Island, GA, and proceeding due east to connect by straight lines the 
following coordinates in the order stated: 31[deg]00' N. lat., 
78[deg]00' W. long.; 28[deg]17'10'' N. lat., 79[deg]11'24'' W. long.; 
then proceeding along the outer boundary of the EEZ to the intersection 
of the EEZ with 24[deg]00' N. lat.; then proceeding due west to 
24[deg]00' N. lat., 82[deg]0' W. long, then proceeding due north to 
intersect the inner boundary of the U.S. EEZ at 82[deg] 0' W. long. 
near Key West, FL. This management area also includes the area west of 
Monroe County, Florida, from 82[deg] 0' W. long., 25[deg]48' N. lat.; 
then proceeding clockwise east along the inner boundary of the U.S. EEZ 
to a point located at 82[deg]0' W. long., 24[deg]46' N. lat.; and then 
proceeding due north to 82[deg]0' W. long., 25[deg]48' N. lat. For 
purposes of Sec.  635.24(b)(4)(ii), the area in which the retention 
limit applies extends from the inner boundary of the U.S. EEZ to the 
shore between 31[deg]00' N. lat. (southward of Jekyll Island, GA) 
through the Florida Keys and northward along the Florida west coast to 
25[deg]48' N. lat. (southward of the northwest boundary of Monroe 
County, FL near Chokoloskee, FL).
* * * * *
0
5. In Sec.  635.4, paragraphs (b)(1), (c)(1), (c)(2), revise 
introductory paragraph (f), (f)(1), (f)(2), (f)(4), introductory 
paragraph (h)(1), (j)(3), and (m)(2), and add paragraphs (c)(4) and 
(f)(5) to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (b) * * *
    (1) The owner of a charter boat or headboat used to fish for, take, 
retain, or possess any Atlantic HMS must obtain an HMS Charter/Headboat 
permit. A vessel issued an HMS Charter/Headboat permit for a fishing 
year shall not be issued an HMS Angling permit, a Swordfish General 
Commercial permit, or an Atlantic Tunas permit in any category for that 
same fishing year, regardless of a change in the vessel's ownership.
* * * * *
    (c) * * *
    (1) The owner of any vessel used to fish recreationally for 
Atlantic HMS or on which Atlantic HMS are retained or possessed 
recreationally, must obtain an HMS Angling permit, except as provided 
in Sec.  635.4(c)(2). Atlantic HMS caught, retained, possessed, or 
landed by persons on board vessels with an HMS Angling permit may not 
be sold or transferred to any person for a commercial purpose. A vessel 
issued an HMS Angling permit for a fishing year shall not be issued an 
HMS Charter/Headboat permit, a Swordfish General Commercial permit, or 
an Atlantic Tunas permit in any category for that same fishing year, 
regardless of a change in the vessel's ownership.
    (2) A vessel with a valid Atlantic Tunas General category permit 
issued under paragraph (d) of this section or with a valid Swordfish 
General Commercial permit issued under paragraph (f) of this section, 
may fish in a recreational HMS fishing tournament if the vessel has 
registered for, paid an entry fee to, and is fishing under the rules of 
a tournament that has registered with NMFS' HMS Management Division as 
required under Sec.  635.5(d). When a vessel issued a valid Atlantic 
Tunas General category permit or a valid Swordfish General Commercial 
permit is fishing in such a tournament, such vessel must comply with 
HMS Angling category regulations, except as provided in paragraphs 
(c)(3) and (c)(4) of this section.
* * * * *
    (4) A vessel issued a Swordfish General Commercial permit fishing 
in a tournament, as authorized under Sec.  635.4(c)(2), shall comply 
with Swordfish General Commercial permit regulations when fishing for, 
retaining, possessing, or landing Atlantic swordfish.
* * * * *
    (f) Swordfish vessel permits. --(1) Except as specified in 
paragraphs (n) and (o) of this section, the owner of a vessel of the 
United States used to fish for or take swordfish commercially from the 
management unit, or on which swordfish from the management unit are 
retained, possessed with an intention to sell, or sold must obtain, an 
HMS Charter/Headboat permit issued under paragraph (b) of this section, 
or one of the following swordfish permits: A swordfish directed limited 
access permit, swordfish incidental limited access permit, swordfish 
handgear limited access permit, or Swordfish General Commercial permit. 
These permits cannot be held in combination with each other on the same 
vessel, except that an HMS Charter/Headboat permit may be held in 
combination with a swordfish handgear limited access permit on the same 
vessel. 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 the HMS Charter/Headboat permit issued under paragraph (b) of this 
section (and only when on a non for-hire trip), the Swordfish General 
Commercial permit issued under paragraph (f), a swordfish limited 
access permit issued consistent with paragraphs (l) and (m), or permits 
issued under paragraphs (n) and (o).
* * * * *
    (4) A directed or incidental limited access permit for swordfish is 
valid only when the vessel has on board a valid limited access permit 
for shark and a valid Atlantic Tunas Longline category permit issued 
for such vessel.
    (5) A Swordfish General Commercial permit may not be held on a 
vessel in conjunction with an HMS Charter/Headboat permit issued under 
paragraph (b) of this section, an HMS Angling category permit issued 
under paragraph (c), a swordfish limited access permit issued 
consistent with paragraphs (l) and (m), an Incidental HMS Squid Trawl 
permit issued under paragraph (n), or an HMS Commercial Caribbean Small 
Boat permit issued under paragraph (o). Except for the 2013 fishing 
year, a vessel issued a Swordfish General Commercial open access permit 
for a fishing year shall not be issued an HMS Angling permit or an HMS 
Charter/Headboat permit for that same fishing year, regardless of a 
change in the vessel's ownership. During the 2013 fishing year, vessel 
owners applying for a Swordfish General Commercial permit must abandon 
their HMS Angling or HMS Charter/Headboat permit if their vessel has 
been issued either of these permits.
* * * * *
    (h) * * *
    (1) Atlantic Tunas, HMS Angling, HMS Charter/Headboat, Swordfish 
General Commercial, Incidental HMS Squid Trawl, and HMS Commercial 
Caribbean Small Boat vessel permits.
* * * * *
    (j) * * *
    (3) A vessel owner issued an Atlantic tunas permit in the General, 
Harpoon, or Trap category or an Atlantic HMS permit in the Angling or 
Charter/Headboat category under paragraph (b), (c), or (d) of this 
section may change the category of the vessel permit once within 10 
calendar days of the date of

[[Page 12285]]

issuance of the permit. After 10 calendar days from the date of 
issuance of the permit, the vessel owner may not change the permit 
category until the following fishing season.
* * * * *
    (m) * * *
    (2) Shark and swordfish permits. The owner of a vessel of the 
United States used to fish for or take sharks commercially from the 
management unit, or on which sharks from the management unit are 
retained, possessed with an intention to sell, or from which sharks 
from the management unit are sold must obtain the applicable limited 
access permit(s) issued pursuant to the requirements in paragraphs (e) 
and (f) of this section, or an HMS Commercial Caribbean Small Boat 
permit issued under paragraph (o) of this section. The owner of a 
vessel of the United States used to fish for or take swordfish 
commercially from the management unit, or on which swordfish from the 
management unit are retained, possessed with an intention to sell, or 
from which swordfish from the management unit are sold must obtain the 
applicable limited access permit(s) issued pursuant to the requirements 
in paragraphs (e) and (f) of this section, a Swordfish General 
Commercial permit issued under paragraph (f) of this section, an 
Incidental HMS Squid Trawl permit issued under paragraph (n) of this 
section, an HMS Commercial Caribbean Small Boat permit issued under 
paragraph (o) of this section, or an HMS Charter/Headboat permit issued 
under paragraph (b) of this section which authorizes a Charter/Headboat 
to fish commercially for swordfish on a non for-hire trip subject to 
the retention limits atSec.  635.24(b)(4) . The commercial retention 
and sale of swordfish for vessels issued an HMS Charter/Headboat permit 
is permissable only when the vessel is on a non for-hire trip. 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.
* * * * *
0
6. In Sec.  635.21, revise paragraphs (e)(2)(i), (e)(2)(ii), (e)(4)(i), 
(e)(4)(iv), and (g) and add paragraph (e)(4)(v) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (e) * * *
    (2) * * *
    (i) Only persons who have been issued a valid HMS Angling or valid 
Charter/Headboat permit, or who have been issued a valid Atlantic Tunas 
General category or Swordfish General Commercial permit and are 
participating in a tournament as provided in 635.4 (c) of this part, 
may possess a blue marlin, white marlin, or roundscale spearfish in, or 
take a blue marlin, white marlin, or roundscale spearfish from, its 
management unit. Blue marlin, white marlin, or roundscale spearfish may 
only be harvested by rod and reel.
    (ii) Only persons who have been issued a valid HMS Angling or valid 
Charter/Headboat permit, or who have been issued a valid Atlantic Tunas 
General category or Swordfish General Commercial permit and are 
participating in a tournament as provided in Sec.  635.4(c) of this 
part, may possess or take a sailfish shoreward of the outer boundary of 
the Atlantic EEZ. Sailfish may only be harvested by rod and reel.
* * * * *
    (4) * * *
    (i) No person may possess north Atlantic swordfish taken from its 
management unit by any gear other than handgear, green-stick, or 
longline, except that such swordfish taken incidentally while fishing 
with a squid trawl may be retained by a vessel issued a valid 
Incidental HMS squid trawl permit, subject to restrictions specified in 
Sec.  635.24(b)(2). No person may possess south Atlantic swordfish 
taken from its management unit by any gear other than longline.
* * * * *
    (iv) Except for persons aboard a vessel that has been issued a 
directed, incidental, or handgear limited access swordfish permit, a 
Swordfish General Commercial permit, an 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.
    (v) A person aboard a vessel issued or required to be issued a 
valid Swordfish General Commercial permit may only possess North 
Atlantic swordfish taken from its management unit by rod and reel, 
handline, bandit gear, green-stick, or harpoon gear.
* * * * *
    (g) Green-stick gear. Green-stick gear may only be utilized when 
fishing from vessels issued a valid Atlantic Tunas General, Swordfish 
General Commercial, HMS Charter/Headboat, or Atlantic Tunas Longline 
category permit. The gear must be attached to the vessel, actively 
trolled with the mainline at or above the water's surface, and may not 
be deployed with more than 10 hooks or gangions attached.
* * * * *
0
7. In Sec.  635.22, paragraphs (f), (f)(1) and (f)(2) are revised to 
read as follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (f) North Atlantic swordfish. The recreational retention limits for 
North Atlantic swordfish apply to persons who fish in any manner, 
except to persons aboard a vessel that has been issued an HMS Charter/
Headboat permit under Sec.  635.4(b) and only when on a non for-hire 
trip, a directed, incidental or handgear limited access swordfish 
permit under Sec.  635.4(e) and (f), a Swordfish General Commercial 
permit under Sec.  635.4(f), an Incidental HMS Squid Trawl permit under 
Sec.  635.4(n), or an HMS Commercial Caribbean Small boat permit under 
Sec.  635.4(o).
    (1) When on a for-hire trip as defined at Sec.  635.2, vessels 
issued an HMS Charter/Headboat permit under Sec.  635.4(b), that are 
charter boats as defined under Sec.  600.10 of this chapter, may 
retain, possess, or land no more than one North Atlantic swordfish per 
paying passenger and up to six North Atlantic swordfish per vessel per 
trip. When such vessels are on a non for-hire trip, they must comply 
with the commercial retention limits for swordfish specified at Sec.  
635.24(b)(4).
    (2) When on a for-hire trip as defined at Sec.  635.2, vessels 
issued an HMS Charter/Headboat permit under Sec.  635.4(b), that are 
headboats as defined under Sec.  600.10 of this chapter, may retain, 
possess, or land no more than one North Atlantic swordfish per paying 
passenger and up to 15 North Atlantic swordfish per vessel per trip. 
When such vessels are on a non for-hire trip, they may land no more 
than the commercial retention limits for swordfish specified at Sec.  
635.24(b)(4).
* * * * *
0
8. In Sec.  635.24, paragraph (b)(4) is added to read as follows:


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

* * * * *
    (b) * * *
    (4) Persons aboard a vessel that has been issued a Swordfish 
General Commercial permit or an HMS Charter/Headboat permit (and only 
when on a non for-hire trip) are subject to the regional swordfish 
retention limits specified at paragraph (b)(4)(iii), which may be 
adjusted during the fishing year

[[Page 12286]]

based upon the inseason regional retention limit adjustment criteria 
identified in paragraph (b)(4)(iv) below.
    (i) Regions. Persons aboard a vessel that has been issued a 
Swordfish General Commercial permit or an HMS Charter/Headboat permit 
(and only when on a non for-hire trip) may fish for or retain swordfish 
in the management unit. Regional retention limits for swordfish apply 
in four regions. For purposes of this section, these regions are: The 
Florida Swordfish Management Area as defined in Sec.  635.2; the 
Northwest Atlantic region (federal waters along the entire Atlantic 
coast of the United States north of 28[deg]17' N. latitude, but not 
inclusive of any water located in the Florida Swordfish Management Area 
as defined in Sec.  635.2); the Gulf of Mexico region (any water 
located in the EEZ in the entire Gulf of Mexico west of 82[deg] W. 
longitude, but not inclusive of any water located in the Florida 
Swordfish Management Area as defined in Sec.  635.2); and the Caribbean 
region (the U.S. territorial waters within the Caribbean as defined in 
Sec.  622.2 of this chapter).
    (ii) Possession, retention, and landing restrictions. Vessels that 
have been issued a Swordfish General Commercial permit or an HMS 
Charter/Headboat permit (and only when on a non for-hire trip), as a 
condition of these permits, may not possess, retain, or land any more 
swordfish than is specified for the region in which the vessel is 
located.
    (iii) Regional retention limits. The swordfish regional retention 
limits for each region will range between zero to six swordfish per 
vessel per trip. At the start of each fishing year, the default 
regional retention limits will apply. During the fishing year, NMFS may 
adjust the default retention limits per the inseason regional retention 
limit adjustment criteria listed in Sec.  635.24(b)(4)(iv), if 
necessary. The default retention limits for the regions set forth under 
paragraph (b)(4)(i) are:
    (A) one swordfish per vessel per trip for the Florida Swordfish 
Management Area.
    (B) two swordfish per vessel per trip for the Caribbean region.
    (C) three swordfish per vessel per trip for the Northwest Atlantic 
region.
    (D) three swordfish per vessel per trip for the Gulf of Mexico 
region.
    (iv) Inseason regional retention limit adjustment criteria. NMFS 
will file with the Office of the Federal Register for publication 
notification of any inseason adjustments to the regional retention 
limits. Before making any inseason adjustments to regional retention 
limits, NMFS will consider the following criteria and other relevant 
factors:
    (A) The usefulness of information obtained from biological sampling 
and monitoring of the North Atlantic swordfish stock;
    (B) The estimated ability of vessels participating in the fishery 
to land the amount of swordfish quota available before the end of the 
fishing year;
    (C) The estimated amounts by which quotas for other categories of 
the fishery might be exceeded;
    (D) Effects of the adjustment on accomplishing the objectives of 
the fishery management plan and its amendments;
    (E) Variations in seasonal distribution, abundance, or migration 
patterns of swordfish;
    (F) Effects of catch rates in one region precluding vessels in 
another region from having a reasonable opportunity to harvest a 
portion of the overall swordfish quota; and
    (G) Review of dealer reports, landing trends, and the availability 
of swordfish on the fishing grounds.
* * * * *
0
9. In Sec.  635.27, paragraphs (c)(1)(i)(A) and (c)(1)(i)(B) are 
revised 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 swordfish 
limited access permit, a swordfish handgear limited access permit, a 
HMS Commercial Caribbean Small Boat permit, a Swordfish General 
Commercial open access permit, or an HMS Charter/Headboat permit (and 
only when on a non for-hire trip) has been issued or is required to 
have been 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 periods: One for January 1 
through June 30, and the other for July 1 through December 31.
    (B) A swordfish from the North Atlantic swordfish stock landed by a 
vessel for which an incidental swordfish limited access permit, an 
incidental HMS Squid Trawl permit, an HMS Angling permit, or an HMS 
Charter/Headboat permit (and only when on a for-hire trip) has been 
issued, or a swordfish from the North Atlantic stock caught after the 
effective date of a closure of the directed fishery from a vessel for 
which a swordfish directed limited access permit, a swordfish handgear 
limited access permit, a HMS Commercial Caribbean Small Boat permit, a 
Swordfish General Commercial open access permit, or an HMS Charter/
Headboat permit (when on a non for-hire trip) has been issued, is 
counted against the incidental category quota. The annual incidental 
category quota is 300 mt dw for each fishing year.
* * * * *
0
10. In Sec.  635.28, paragraphs (c)(1)(i)(C) and (c)(1)(i)(D) are added 
to read as follows:


Sec.  635.28  Closures.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (C) No swordfish may be possessed, landed, or sold by vessels 
issued a Swordfish General Commercial open access permit.
    (D) No swordfish may be sold by vessels issued an HMS Charter/
Headboat permit.
* * * * *
0
11. In Sec.  635.34, paragraph (a) is revised to read as follows:


Sec.  635.34  Adjustment of management measures.

    (a) NMFS may adjust the catch limits for BFT, as specified in Sec.  
635.23; the quotas for BFT, shark and swordfish, as specified in Sec.  
635.27; the regional retention limits for Swordfish General Commercial 
permit holders, as specified at Sec.  635.23; the marlin landing limit, 
as specified in Sec.  635.27(d); and the minimum sizes for Atlantic 
blue marlin, white marlin, and roundscale spearfish as specified in 
Sec.  635.20.
* * * * *
0
12. In Sec.  635.71, paragraphs (e)(8) and (e)(15) are revised, and 
paragraph (e)(18) is added to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (e) * * *
    (8) Fish for North Atlantic swordfish from, possess North Atlantic 
swordfish on board, or land North Atlantic swordfish from a vessel 
using or having on board gear other than longline, green-stick gear, or 
handgear, except as specified at Sec.  635.21(e)(4)(i).
* * * * *

[[Page 12287]]

    (15) As the owner of a vessel permitted, or required to be 
permitted, in the Atlantic HMS Angling or the Atlantic HMS Charter/
Headboat category (and only when on a for-hire trip), fail to report a 
North Atlantic swordfish, as specified in Sec.  635.5(c)(2) or (c)(3).
* * * * *
    (18) As the owner of a vessel permitted, or required to be 
permitted, in the Swordfish General Commercial permit category, possess 
North Atlantic swordfish taken from its management unit by any gear 
other than rod and reel, handline, bandit gear, green-stick, or harpoon 
gear.
* * * * *
[FR Doc. 2013-03990 Filed 2-21-13; 8:45 am]
BILLING CODE 3510-22-P