[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Proposed Rules]
[Pages 49773-49780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23277]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 170901859-7999-01]
RIN 0648-BH19


Atlantic Highly Migratory Species; Charter/Headboat Permit 
Commercial Sale Provision

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would make HMS Charter/Headboat permits a 
non-commercial category and create a separate regulatory provision for 
the commercial sale of Atlantic highly migratory species (HMS) by HMS 
Charter/Headboat permit holders. Currently, all vessels issued an HMS 
Charter/Headboat permit could be categorized as a commercial fishing 
vessel and subject to United States Coast Guard (USCG) commercial 
fishing vessel safety requirements if they also possess a state 
commercial sale permit, regardless of whether the permit holder engages 
or intends to engage in commercial fishing. Under the proposed rule, 
HMS Charter/Headboat permit holders would be prohibited from selling 
Atlantic tunas or swordfish unless they obtain a ``commercial sale'' 
endorsement for their permit. This proposed rule would clarify which 
HMS Charter/Headboat permitted vessels are properly categorized as 
commercial fishing vessels. This action would be administrative in 
nature and would not affect fishing practices or result in any 
significant environmental or economic impacts.
    This proposed rule has a 15-day comment period. The abbreviated 
comment period is necessary to implement any management changes before 
January 1, 2018 to ensure all HMS charter/headboat vessels are 
appropriately categorized as commercial or non-commercial upon initial 
application or renewal of 2018 HMS Charter/Headboat permits. We do not 
anticipate the proposal to be controversial or to generate significant 
public comment and believe that a 15-day comment period will be 
sufficient to attract any substantive public input.

DATES: Written comments must be received by November 13, 2017. An 
operator-assisted, public conference call and webinar will be held on 
November 1, 2017, from 2:00 p.m. to 4:00 p.m., EST.

ADDRESSES: The conference call information is phone number 1 (888) 664-
9965; participant passcode 5355311. Participants are strongly 
encouraged to log/dial in fifteen minutes prior to the meeting. NMFS 
will show a brief presentation via webinar followed by an opportunity 
for public comment. To join the webinar go to: https://noaaevents2.webex.com/noaaevents2/onstage/g.php?MTID=efb2b4e48c0c4b75f50900b90743b7a18, event password: noaa. 
Participants that have not used WebEx before will be prompted to 
download and run a plug-in program that will enable them to view the 
webinar.
    You may submit comments on this document, identified by NOAA-NMFS-
2017-0124, 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-2017-0124, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Margo Schulze-Haugen, 
NMFS/SF1, 1315 East-West Highway, National Marine Fisheries Service, 
SSMC3, Silver Spring, MD 20910.
    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 will generally 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

[[Page 49774]]

be publicly accessible. NMFS will accept anonymous comments (enter ``N/
A'' in the required fields if you wish to remain anonymous). 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 the HMS Management Division by email to 
[email protected] or fax to (202) 395-7285.
    Presentation materials and copies of the supporting documents--
including the 2006 Consolidated HMS Fishery Management Plan (FMP) and 
its amendments and associated documents--are available from the HMS 
Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/ or by 
contacting Dianne Stephan by phone at 978-281-9260.

FOR FURTHER INFORMATION CONTACT: Dianne Stephan or Tobey Curtis by 
phone at 978-281-9260, or Steve Durkee by phone at 202-670-6637.

SUPPLEMENTARY INFORMATION:

Background

    Atlantic HMS regulations at 50 CFR 635.4(b) require that charter/
headboat vessels (i.e., vessels taking fee-paying passengers) used to 
fish for, take, retain, or possess Atlantic HMS, must obtain an HMS 
Charter/Headboat permit. In addition to carrying paying passengers, the 
permit also allows charter/headboat fishermen to diversify their 
operations by fishing commercially for Atlantic tunas and swordfish. 
They may also sell sharks if they have a commercial shark permit in 
addition to the Charter/Headboat permit. Relatively few permit holders 
use the commercial sale provision. From 2012-2016, an annual average of 
only seven percent of HMS Charter/Headboat permit holders sold any tuna 
or swordfish.
    Legislation and United States Coast Guard (USCG) commercial fishing 
vessel safety policies and regulatory interpretation may result in an 
increased compliance burden for HMS Charter/Headboat permitted vessels. 
Commercial fishing vessel safety provisions contained in the Coast 
Guard Authorization Act of 2010 (CGAA) and the Coast Guard and Maritime 
Transportation Act of 2012 were the subject of a Marine Safety 
Information Bulletin (MSIB 12-15) issued by the USCG on October 20, 
2015. MSIB 12-15 clarified that the law would require mandatory 
dockside safety exams to a broader population of commercial fishing 
vessels. As clarified in the notice, that broader community included 
HMS Charter/Headboat vessels that were authorized by the permit to sell 
fish commercially (e.g., all Charter/Headboat vessels) who also 
possessed a state commercial sale permit. The mandatory safety exam 
includes a check for required commercial fishing vessel safety 
equipment such as life rafts, emergency beacons, and survival suits, 
and other requirements found in 46 CFR part 28. Outfitting a vessel 
with these items comes at a substantial cost. Mandatory dockside safety 
exams for vessels operating beyond three nautical miles from the 
baseline under this program began October 15, 2015.
    The mandatory safety requirements have been difficult to enforce 
pending a more effective way to identify which HMS Charter/Headboat 
permit holders engage in commercial fishing and are therefore subject 
to the requirements. After receiving questions about applicability from 
NMFS and the regulated community, on July 10, 2017, the USCG issued 
Marine Safety Information Bulletin (MSIB 008-17) in an attempt to 
clarify the applicability of commercial fishing vessel safety 
requirements for vessels with HMS permits, including HMS Charter/
Headboat permits. USCG regulations at 46 CFR 28.50 define a commercial 
fishing vessel as a vessel that commercially engages in the catching, 
taking, or harvesting of fish, or an activity that can reasonably be 
expected to result in the catching, taking, or harvesting of fish. 
According to the MSIB 008-17, if an individual has an HMS Charter/
Headboat permit (which allows commercial sale) and a state permit to 
sell catch, the vessel is considered subject to commercial fishing 
vessel safety regulations.
    Many HMS Charter/Headboat operators that neither sell, nor intend 
to sell, their catch but hold a permit to sell have thus found that the 
USCG policy identifies their operations as a ``commercial fishing 
vessel,'' and requires them to adhere to USCG commercial fishing vessel 
safety requirements. For example, even small charter vessels (i.e., 
less than 20 feet in length) operating in the warm waters of the Gulf 
of Mexico and with no intent to sell HMS, may be required under the 
USCG regulations to carry an inflatable life raft that can cost 
approximately $1,750. In addition to the cost burden, a vessel of this 
size has minimal space to store such gear. These smaller HMS Charter/
Headboat permitted vessels were previously subject to the USCG safety 
regulations for uninspected passenger vessels of less than 100 gross 
tons and carrying six or less passengers, which are less extensive and 
less costly.
    In late 2016 and early 2017, NMFS and the USCG staff informally 
discussed how to more effectively categorize HMS charter/headboat 
vessels under USCG regulations. On October 6, 2017, the USCG formally 
reviewed this proposed rule and concurred with the approach to provide 
clarity on the applicability on their requirements. The HMS Advisory 
Panel discussed this issue at length at its May and September 2017 
meetings. Many HMS Advisory Panel members, including commercial, 
recreational, and council/state representatives, supported creating a 
separate regulatory provision for charter/headboat vessels that intend 
to sell HMS and to thus specify that other such vessels were not 
engaged in commercial sale and not subject to expensive USCG commercial 
vessel compliance obligations. Panel members stated that creating a 
separate sale provision would support more appropriate application and 
enforcement of USCG commercial fishing vessel safety requirements in 
the Atlantic HMS Charter/Headboat fishery, and would better clarify for 
permit holders which USCG regulations apply to their vessels and 
fishing operations.

Proposed Action

    This rule proposes to create a ``commercial sale'' endorsement on 
the existing HMS Charter/Headboat permit. Under the proposed rule, HMS 
Charter/Headboat permit holders would be prohibited from selling any 
catch of HMS unless they first obtain a ``commercial sale'' endorsement 
on their permit. Only those HMS Charter/Headboat permit holders with 
the endorsement would be permitted to sell Atlantic tunas or swordfish 
or sharks if they also have the additionally required commercial shark 
permit.
    This proposed rule clarifies that any HMS Charter/Headboat vessel 
that selects this commercial sale endorsement would be categorized as a 
commercial fishing vessel under USCG criteria, and therefore subject to 
USCG commercial fishing vessel safety requirements. Those vessels 
issued an HMS Charter/Headboat permit without a ``commercial sale'' 
endorsement would not be categorized as a commercial fishing vessel and 
would not be subject to the USCG commercial fishing vessel safety 
requirements. HMS Charter/Headboat permit holders with the commercial 
sale endorsement selling a tuna or swordfish must adhere to the 
applicable Atlantic Tunas General Category or General Commercial 
Swordfish permit possession limits and restrictions, and the landings 
would be applied against the appropriate commercial quota. HMS Charter/
Headboat permit holders that sell or intend to sell sharks must also 
obtain

[[Page 49775]]

the commercial sale endorsement on their permit as well as a commercial 
shark permit. This proposed rule would only change the permit category 
under which certain vessels are fishing. It would not affect quotas, 
gear types, or time/area restrictions, and neither increase or decrease 
fishing effort or affect fishing timing nor implement other measures 
that would potentially have any environmental impacts or effects.

Request for Comments

    NMFS is requesting comments on the alternatives and analyses 
described in this proposed rule, Initial Regulatory Flexibility Act 
Analysis (IRFA) and Regulatory Impact Review (RIR). Comments may be 
submitted via http://www.regulations.gov, mail, or fax. Comments may 
also be submitted at a public hearing (see Public Hearings and Special 
Accommodations below). NMFS solicits comments on this proposed rule by 
November 13, 2017 (see DATES and ADDRESSES).

Public Hearings

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax and comments may also be submitted at 
a public hearing. During the comment period, NMFS will hold one webinar 
conference call for this proposed rule (see ADDRESSES).

Classification

    Pursuant to the Magnuson-Stevens Fishery Management and 
Conservation (Magnuson-Stevens) Act, the NMFS Assistant Administrator 
has determined that the proposed rule is consistent with the 2006 
Consolidated HMS FMP and its amendments, other provisions of the 
Magnuson-Stevens Act, Atlantic Tunas Convention Act, and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Paperwork Reduction Act (PRA)

    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
submitted to OMB under control number (0648-0327). Public reporting 
burden for HMS Charter/Headboat permit applications initial response is 
estimated to average 30 minutes and renewal by telephone or web is 
estimated to average 6 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 
email to [email protected],or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    For the reasons described in the preamble, this proposed rule is 
expected to be deregulatory under Executive Order 13771.

Administrative Procedure Act (APA)

    This proposed rule has a 15-day comment period. The abbreviated 
comment period is necessary to implement any management changes before 
January 1, 2018 to ensure all HMS charter/headboat vessels are 
appropriately categorized as commercial or non-commercial upon initial 
application or renewal of 2018 HMS Charter/Headboat permits. This will 
avoid additional administrative burden on the agency and the regulated 
community that would result from a later implementation date, which 
would require those vessel owners needing the commercial endorsement to 
engage in an additional process. We do not anticipate the proposal to 
be controversial or to generate significant public comment and believe 
that a 15-day comment period will be sufficient to attract any 
substantive public input.

Regulatory Flexibility Act

    NMFS prepared an IRFA, 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 copy of this 
analysis is available from NMFS (see ADDRESSES). The following is a 
summary of the IRFA.
Description of the Reasons Why Action Is Being Considered
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the Background section of 
the preamble and in the SUMMARY of this proposed rule.
Description and Estimate of the Number of Small Entities to Which the 
Proposed Rule Would Apply
    Section 603(b)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The Small Business Administration (SBA) has established size criteria 
for all major industry sectors in the United States, including for-hire 
charter/headboat businesses. For-hire charter/headboat business fit 
into the ``Scenic and Sightseeing Transportation, Water'' industry 
under NAICS code 487210. SBA has established that the small entity size 
standard for that industry is $7.5 million in average annual receipts.
    Provision is made under SBA's regulations for an agency to develop 
its own industry-specific size standards after consultation with 
Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). 
Under this provision, NMFS may establish size standards that differ 
from those established by the SBA Office of Size Standards, but only 
for use by NMFS and only for the purpose of conducting an analysis of 
economic effects in fulfillment of the agency's obligations under the 
RFA. To utilize this provision, NMFS must publish such size standards 
in the Federal Register (FR), which NMFS did on December 29, 2015 (80 
FR 81194, December 29, 2015). In this final rule effective on July 1, 
2016, NMFS established a small business size standard of $11 million in 
annual gross receipts for all businesses in the commercial fishing 
industry (NAICS 11411) for RFA compliance purposes.
    NMFS considers all HMS Charter/Headboat permit holders (3,594 as of 
October 2016) to be small entities because these vessels have reported 
annual gross receipts of less than $11 million for commercial fishing 
or earn less than $7.5 million from for-hire fishing trips.
    NMFS has determined that this proposed rule would apply to the 
small businesses associated with the approximately seven percent of HMS 
Charter/Headboat permit holders that also commercially fish for 
swordfish and tuna. Based on the most recent number of permit holders, 
NMFS estimates that this proposed rule would apply to approximately 252 
HMS Charter/Headboat vessel owners. NMFS has determined that this 
action would not likely directly affect any small organizations or 
small government jurisdictions defined under the RFA.

[[Page 49776]]

Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Would Be Subject to the 
Requirements of the Report or Record
    Section 603(b)(4) of the RFA requires Agencies to describe any new 
reporting, record-keeping and other compliance requirements. This 
proposed rule would create a ``commercial sale'' endorsement for the 
HMS Charter/Headboat permit. Under the proposed rule, HMS Charter/
Headboat permit holders would be prohibited from selling any catch of 
HMS unless they obtain a commercial sale endorsement on their permit. 
The commercial sale endorsement could be added to the Charter/Headboat 
permit at the time of the permit application or renewal, or anytime 
thereafter. Only Charter/Headboat permit holders with the endorsement 
would be allowed to sell HMS although they would not be obligated to 
sell any HMS. There would be no additional charge for the commercial 
sale endorsement above the cost of the HMS Charter/Headboat permit; the 
endorsement would add less than a minute more of labor effort to the 
normal HMS Charter/Headboat permit process. Those vessels issued an HMS 
Charter/Headboat permit with a ``commercial sale'' endorsement would be 
categorized as a commercial vessel for the purposes of USCG commercial 
fishing vessel safety requirement.
Identification of All Relevant Federal Rules Which May Duplicate, 
Overlap, or Conflict with the Proposed Rule
    This proposed rule has been determined not to duplicate, overlap, 
or conflict with any Federal rules. This rule is being proposed to 
address changes in USCG commercial fishing vessel safety policies and 
regulatory interpretation that would result in an increased compliance 
burden for HMS Charter/Headboat permit holders due to the Coast Guard's 
broader definition of commercial fishing vessels. This proposed rule 
would clarify which HMS charter/headboat vessels are truly operating as 
commercial fishing vessels versus those that neither sell, nor intend 
to sell, their catch, which includes the majority of charter/headboat 
vessels.
Description of Any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of the Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    NMFS considered four different alternatives to separate the 
commercial sale provision from the HMS Charter/Headboat permit, and 
thus relieve some HMS Charter/Headboat permit holders from the changes 
in USCG commercial fishing vessel safety requirements. Alternative 1, 
the status quo/no action alternative, would make no changes to current 
HMS regulations. Alternative 2, the preferred alternative, would create 
an endorsement for the HMS Charter/Headboat permit that allows 
commercial sale of Atlantic tunas and swordfish. Alternative 3 would 
remove the commercial sale provision of the HMS Charter/Headboat 
permit. Alternative 4 would create two separate HMS Charter/Headboat 
permits; one that allows commercial sale of Atlantic tunas and 
swordfish, and one that does not.
    Under the ``no action'' Alternative 1, NMFS would maintain the 
current regulations regarding the Atlantic HMS Charter/Headboat permit. 
Under current regulations at 635.4(b), permit holders taking fee-paying 
passengers to fish for HMS (i.e. charter boats or headboats) must 
obtain the HMS Charter/Headboat permit. Since HMS Charter/Headboat 
permits allow the commercial sale of Atlantic tunas and swordfish, the 
vessels would now be subject to USCG commercial fishing vessel safety 
requirements, regardless of whether the permit holder intends to sell 
HMS. However, without a change to the HMS Charter/Headboat permit 
regulations, USCG will consider all HMS charter/headboat vessels as 
commercial fishing vessels that must adhere to the to USCG commercial 
fishing vessel safety requirements. HMS Charter/Headboat permitted 
vessels were previously subject to the USCG safety regulations for 
uninspected passenger vessels of less than 100 gross tons and carrying 
six or less passengers, which are less extensive and less costly.
    Under the USCG commercial fishing vessel safety requirements, many 
Atlantic HMS charter/headboats would have to comply with four rule 
requirements for survival craft, record keeping, examinations and 
certificates of compliance, and classing of vessels.
    The survival craft requirement establishes that all fishing 
industry vessels operating beyond 3 nautical miles must carry survival 
craft that will meet a new performance standard for primary lifesaving 
equipment. The use of ``lifeboats or liferafts'' are required for 
commercial vessels, whereas strictly for-hire vessels are only required 
to a have ``a survival craft that ensures that no part of an individual 
is immersed in water.'' This means that lifefloats and buoyant 
apparatus will no longer be accepted as survival craft on any 
commercial fishing vessel operating beyond 3 nautical miles once the 
most recent USCG guidance in fully enforced. Some HMS Charter/Headboat 
permitted vessels would incorrectly be identified as commercial 
vessels, subject to the more stringent lifeboat/liferaft requirements. 
USCG estimates that the maximum initial cost of this requirement per 
vessel will be $1,740 and have a recurring annual cost of $300. The 
records provision requires the individual in charge of a vessel 
operating beyond 3 nautical miles to maintain a record of lifesaving 
and fire equipment maintenance. It will be incumbent upon the master/
individual in charge of the vessel to maintain these records onboard. 
The USCG estimates this record keeping requirement will cost $18 
annually per vessel.
    The examinations and certificates of compliance provision requires 
a dockside safety examination at least once every 5 years for vessels, 
such as HMS charter/headboats that engage in commercial fishing, 
operating beyond 3 nautical miles with the first exam statutorily 
required by October 15, 2015. A ``certificate of compliance'' will be 
issued to a vessel successfully completing the exam. Voluntary exams 
will continue to be promoted for vessels operating inside 3 nautical 
miles. USCG estimates that the maximum initial cost of this requirement 
per vessel will be $600 and have a recurring cost of $600.
    The classing of vessels provision requires the survey and 
classification of a fishing vessel that is at least 50 feet overall in 
length, was built after July 1, 2013, and operates beyond 3 nautical 
miles. It is unlikely that this requirement will impact many Atlantic 
HMS charter/headboat vessels because the vessels are typically less 
than 50 feet overall in length.
    In sum, all 3,594 Atlantic HMS Charter/Headboat permit holders 
would face an initial per vessel cost of $2,358. The annual cost 
savings per vessel in subsequent years would be approximately $300 for 
the survival craft, $18 for record keeping, and $120 ($600/5 yrs) for 
examinations and certificates of completion. The total annual recurring 
cost saving per vessel would be $438 for these three requirements. 
These costs could be higher for some individual vessels that are too 
small or have too little storage space for the survival craft 
requirement because those vessels might require extensive modifications 
to accommodate the storage space for the gear.
    Under Alternative 2, the preferred alternative, NMFS would modify 
the regulations so that the HMS Charter/Headboat permit alone does not 
allow

[[Page 49777]]

commercial sale and would also create an endorsement for the HMS 
Charter/Headboat permit that allows commercial sale of Atlantic tunas 
and swordfish. Currently, charter/headboat vessels are able, though not 
obligated, to sell swordfish and tunas with an HMS Charter/Headboat 
permit. Consequently, vessels that hold an HMS Charter/Headboat permit 
are categorized as commercial fishing vessels subject to USCG 
commercial vessel fishing safety requirements if they also possess a 
state commercial sale permit, regardless of whether the permit holder 
engages or intends to sell HMS. Under Alternative 2, NMFS would create 
a ``commercial sale'' endorsement for the HMS Charter/Headboat permit. 
Under the proposed action, HMS Charter/Headboat permit holders would be 
prohibited from selling any catch of HMS unless they apply for a 
commercial sale endorsement to be added to their permit. The commercial 
sale endorsement could be added to the Charter/Headboat permit at the 
time of the permit application or renewal. Only charter/headboat 
vessels with the endorsement would be permitted to sell HMS although 
they would not be obligated to sell any HMS. Those vessels holding an 
HMS Charter/Headboat permit without a commercial sale endorsement would 
not be categorized as a commercial fishing vessel and would not be 
subject to the USCG commercial safety gear requirements. Those vessels 
that hold an HMS Charter/Headboat permit with a ``commercial sale'' 
endorsement would be categorized as a commercial vessel for the 
purposes of USCG commercial fishing safety requirements.
    The cost savings associated with implementing a commercial 
endorsement option for Atlantic HMS Charter/Headboat permits would be 
that approximately 93 percent of the permit holders would not have to 
comply with the costs associated with the USCG commercial fishing 
vessel safety requirements, since Atlantic HMS Charter/Headboat permit 
holders would not be considered commercial fishing vessels unless they 
were issued the commercial endorsement. The reduced costs per vessel 
initially would be approximately $1,740 for the survival craft, $18 for 
record keeping, and $600 for examinations and certificates of 
completion. The total initial costs saved per vessel would be $2,358. 
The annual cost savings per vessel in subsequent years would be 
approximately $300 for the survival craft, $18 for record keeping, and 
$120 ($600/5 yrs) for examinations and certificates of completion. The 
total annual recurring cost saving per vessel would be $438 for these 
three requirements. In addition to the reduced costs associated with 
complying with the USCG commercial fishing vessel safety requirements 
for those HMS Charter/Headboat permit holders that do not intend to 
obtain the endorsement to fish commercially, most Atlantic HMS Charter/
Headboat permit holders would have to do nothing different when 
obtaining their permit unless they want to commercially sell tunas or 
swordfish.
    For the approximately 7 percent of Atlantic Charter/Headboat permit 
holders that want to obtain a commercial endorsement to continue 
selling tunas and swordfish in addition to complying with the USCG 
commercial fishing vessel safety requirements, they would need to 
obtain an endorsement for the commercial sale of Atlantic tunas and 
swordfish. HMS charter/headboat permit holders issued the commercial 
sale endorsement selling sharks must obtain a commercial shark permit 
in addition to an HMS Charter/Headboat permit. This would likely only 
add a minute or so to the time it takes to obtain the Atlantic HMS 
Charter/Headboat permit and it would not add to the cost of obtaining 
the permit. NMFS would incur some costs associated with altering the 
online permit application to accommodate the endorsement, along with 
some customer service changes.
    Under Alternative 3, NMFS would remove the commercial sale 
provision of the HMS Charter/Headboat permit. Currently, charter/
headboat vessels are able, though not obligated, to sell swordfish and 
tunas as a condition of the HMS Charter/Headboat permit and may sell 
sharks if they also have a commercial shark permit. Consequently, 
vessels that hold an HMS Charter/Headboat permit currently are being 
categorized by USCG as commercial fishing vessels and subject to USCG 
commercial fishing vessel safety requirements if they also hold a state 
commercial sale permit, regardless of whether the permit holder engages 
or intends to sell HMS. Under Alternative 3, NMFS would remove the 
provision that allows commercial sales under the HMS Charter/Headboat 
permit. Thus, holding an HMS Charter/Headboat permit would no longer 
categorize a vessel as a commercial fishing vessel. charter/headboat 
vessel owners or operators that wish to engage in commercial sale of 
tunas and swordfish would instead need to obtain an Atlantic tunas 
General category and/or Swordfish General Commercial permit. The 
Atlantic Tunas General category and Swordfish General Commercial 
permits could be held in conjunction with the HMS Charter/Headboat 
permit. Those vessels with an HMS Charter/Headboat permit that do not 
intend to sell HMS and do not obtain an Atlantic Tunas General 
category, Swordfish General Commercial, or commercial shark permit 
would not be subject to USCG commercial fishing vessel safety 
requirements.
    The benefits of Alternative 3 versus the No Action alternative 
would be identical to Alternative 2. Approximately 93 percent of the 
permit holders would not have to face the costs associated with the 
USCG commercial fishing safety requirements, since Atlantic HMS 
Charter/Headboat permit holders would not be considered commercial 
fishing. The reduced costs for the fleet would be approximately 
$7,880,436 initially, and then $3,067,956 annually thereafter. The 7 
percent that wish to engage in commercial sale of tunas and swordfish 
would instead need to obtain an Atlantic tunas General category and/or 
Swordfish General Commercial permit. This would cost them $20 to obtain 
either the Atlantic Tunas General category permit or the Swordfish 
General Commercial permit. For the approximately 252 vessel owners that 
might obtain these $20 permits, the total cost would be $5,040 to 
$10,080 annually depending on whether they obtain one or both permits. 
In addition, vessel owners may need to expend a bit more time to 
complete the application for these additional permits. NMFS would incur 
costs associated with the substantial permits site and customer service 
changes that would be required for this change. NMFS prefers 
Alternative 2 over Alternative 3 because a commercial sale endorsement 
requirement more closely matches current fishing practices and would 
minimize disruptions. Currently, HMS Charter/Headboat permit holders 
can sell some HMS and Alternative 2 would allow them to continue by 
simply obtaining an endorsement on their Charter/Headboat permit. 
Alternative 3 would be more disruptive since it would require fishermen 
to obtain additional permits.
    Under Alternative 4, NMFS would create two separate Atlantic HMS 
Charter/Headboat permits; one that allows commercial sale of Atlantic 
tunas and swordfish, and one that does not. Currently, charter/headboat 
vessels are able, though not obligated, to sell swordfish and tunas as 
a condition of the HMS Charter/Headboat permit. Consequently, vessels 
that hold an HMS Charter/Headboat permit could be

[[Page 49778]]

categorized as commercial fishing vessels and subject to USCG 
commercial fishing vessel safety requirements, regardless of whether 
the permit holder engages or intends to sell HMS. Under Alternative 4, 
NMFS would create two separate HMS Charter/Headboat permits; one that 
would allow commercial sale of HMS, and one that would not. Those 
vessels holding an HMS Charter/Headboat permit that does not allow 
commercial sale would not be categorized as a commercial fishing vessel 
and would not be subject to the USCG commercial fishing vessel safety 
requirements. Those vessels that hold an HMS Charter/Headboat permit 
that allows commercial sale would be categorized as commercial vessels 
for the purposes of USCG commercial fishing vessel safety requirements.
    The benefits of Alternative 4 versus the No Action alternative 
would be identical to those provided by Alternative 2. Approximately 93 
percent of the permit holders would not have to face the costs 
associated with the USCG commercial fishing safety requirements, since 
Atlantic HMS Charter/Headboat permit holders would not be considered 
commercial fishing. The reduced costs for the fleet would be 
approximately $7,880,436 initially, and then $3,067,956 annually 
thereafter. Under this alternative, each of the 3,594 Atlantic HMS 
Charter/Headboat permit holders would have to determine which type of 
Charter/Headboat permit they wish to obtain for the year, and all of 
charter/headboat vessel owners would have to learn the new permit 
process. Unlike Alternative 3, there would be no additional costs 
associated with obtaining a commercial permit, because under this 
alternative each would pick either the no-sale HMS Charter/Headboat 
permit or the commercial sale Charter/Headboat permit. NMFS would incur 
costs associated with the substantial permits site and customer service 
changes that would be required for this change. NMFS would need to 
develop new regulatory text to describe these two new permits and 
fishery participants would have to learn and adapt to these changes.

List of Subjects in 50 CFR Part 635

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

    Dated: October 20, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set out in the preamble, 50 CFR part 635 is proposed to 
be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

0
2. In Sec.  635.2, add a new definition for ``Charter/headboat 
commercial sale endorsement'' in alphabetical order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Charter/headboat commercial sale endorsement means an authorization 
added to an HMS Charter/Headboat permit that is required for vessels 
that sell or intend to sell Atlantic tunas, sharks, and swordfish, 
provided that all other requirements in this part are also met.
* * * * *
0
3. In Sec.  635.4,
0
(a) Revise paragraphs (a)(5), (d)(1), (d)(2), introductory text for 
paragraph (f), and paragraphs (f)(1), (f)(2), and (m)(2); and
0
(b) Add paragraph (b)(3).
    The additions and revisions read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (a) * * *
    (5) Display upon offloading. Upon offloading of Atlantic HMS for 
sale, the owner or operator of the harvesting vessel must present for 
inspection the vessel's HMS Charter/Headboat permit with a commercial 
sale endorsement; Atlantic tunas, shark, or swordfish permit; 
Incidental HMS squid trawl; HMS Commercial Caribbean Small Boat permit; 
and/or the shark research permit to the first receiver. The permit(s) 
must be presented prior to completing any applicable landing report 
specified at Sec.  635.5(a)(1), (a)(2), and (b)(2)(i).
* * * * *
    (b) * * *
    (3) The owner of a charter boat or headboat that intends to sell 
Atlantic tunas or swordfish must obtain a commercial sale endorsement 
for the vessel's HMS Charter/Headboat permit. The owner of a charter 
boat or headboat that intends to sell Atlantic sharks must obtain a 
commercial sale endorsement for the vessel's HMS Charter/Headboat 
permit and must also obtain any applicable Atlantic commercial shark 
permits. A vessel owner that has obtained an HMS Charter/Headboat 
permit without a commercial sale endorsement is prohibited from selling 
any Atlantic HMS.
* * * * *
    (d) * * *
    (1) The owner of each vessel used to fish for or take Atlantic 
tunas commercially or on which Atlantic tunas are retained or possessed 
with the intention of sale must obtain an HMS Charter/Headboat permit 
with a commercial sale endorsement issued under paragraph (b) of this 
section, an HMS Commercial Caribbean Small Boat permit issued under 
paragraph (o) of this section, or an Atlantic tunas permit in one, and 
only one, of the following categories: General, Harpoon, Longline, 
Purse Seine, or Trap.
    (2) Persons aboard a vessel with a valid Atlantic Tunas, HMS 
Angling, HMS Charter/Headboat, or an HMS Commercial Caribbean Small 
Boat permit may fish for, take, retain, or possess Atlantic tunas, but 
only in compliance with the quotas, catch limits, size classes, and 
gear applicable to the permit or permit category of the vessel from 
which he or she is fishing. Persons may sell Atlantic tunas only if the 
harvesting vessel has a valid permit in the General, Harpoon, Longline, 
Purse Seine, or Trap category of the Atlantic Tunas permit, a valid HMS 
Charter/Headboat permit with a commercial sale endorsement, or an HMS 
Commercial Caribbean Small Boat permit.
* * * * *
    (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 or possessed with an intention to 
sell, or sold must obtain, an HMS Charter/Headboat permit with a 
commercial sale endorsement 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 a 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 with a 
commercial sale endorsement may be held in combination with a swordfish 
handgear

[[Page 49779]]

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 with a commercial sale endorsement 
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) of this section, a swordfish limited access permit issued 
consistent with paragraphs (l) and (m) of this section, or permits 
issued under paragraphs (n) and (o) of this section.
* * * * *
    (m) * * *
    (2) Shark and swordfish permits. A vessel owner must obtain the 
applicable limited access permit(s) issued pursuant to the requirements 
in paragraphs (e) and (f) of this section and/or a Federal commercial 
smoothhound permit issued under paragraph (e) of this section; or an 
HMS Commercial Caribbean Small Boat permit issued under paragraph (o) 
of this section, if: The vessel is used to fish for or take sharks 
commercially from the management unit; sharks from the management unit 
are retained or possessed on the vessel with an intention to sell; or 
sharks from the management unit are sold from the vessel. A vessel 
owner 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 with a commercial sale endorsement 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 at Sec.  635.24(b)(4) if: The vessel is used to fish 
for or take swordfish commercially from the management unit; swordfish 
from the management unit are retained or possessed on the vessel with 
an intention to sell; or swordfish from the management unit are sold 
from the vessel. The commercial retention and sale of swordfish from 
vessels issued an HMS Charter/Headboat permit with a commercial sale 
endorsement is permissible 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
4. In Sec.  635.19, paragraph (d)(4) was revised at 82 FR 16506, April 
4, 2017, effective January 1, 2018, and is further revised to read as 
follows:


Sec.  635.19  Authorized gears.

* * * * *
    (d) * * *
    (4) Persons on a vessel issued a permit with a shark endorsement 
under Sec.  635.4 may possess a shark only if the shark was taken by 
rod and reel or handline, except that persons on a vessel issued both 
an HMS Charter/Headboat permit with a commercial sale endorsement (with 
or without a shark endorsement) and a Federal Atlantic commercial shark 
permit may possess sharks taken by rod and reel, handline, bandit gear, 
longline, or gillnet if the vessel is engaged in a non for-hire fishing 
trip and the commercial shark fishery is open pursuant to Sec.  
635.28(b).
* * * * *
0
5. In Sec.  635.22, revise the introductory text in paragraph (f), and 
paragraphs (f)(1) and (f)(2) 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 with a commercial sale endorsement 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 have been issued a commercial sale endorsement 
and 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 have been issued a commercial sale endorsement and 
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
6. In Sec.  635.23, revise paragraph (c)(3) to read as follows:


Sec.  635.23  Retention limits for bluefin tuna.

* * * * *
    (c) * * *
    (3) When fishing other than in the Gulf of Mexico and when the 
fishery under the General category has not been closed under Sec.  
635.28, a person aboard a vessel that has been issued an HMS Charter/
Headboat permit with a commercial sale endorsement may fish under 
either the retention limits applicable to the General category 
specified in paragraphs (a)(2) and (a)(3) of this section or the 
retention limits applicable to the Angling category specified in 
paragraphs (b)(2) and (b)(3) of this section. The size category of the 
first BFT retained will determine the fishing category applicable to 
the vessel that day. A person aboard a vessel that has been issued an 
HMS Charter/Headboat without a commercial sale endorsement permit may 
fish only under the retention limits applicable to the Angling 
category.
* * * * *
0
7. In Sec.  635.24, revise the introductory text of paragraph (b)(4), 
and paragraph (b)(4)(ii) 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 with a 
commercial sale endorsement (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 
based upon the inseason regional retention limit adjustment criteria 
identified in paragraph (b)(4)(iv) below.
* * * * *
    (ii) Possession, retention, and landing restrictions. Vessels that 
have been issued a Swordfish General Commercial

[[Page 49780]]

permit or an HMS Charter/Headboat permit with a commercial sale 
endorsement (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.
* * * * *
0
8. In Sec.  635.27, revise paragraphs (a)(1)(i), (c)(1)(i)(A), and 
(c)(1)(i)(B) to read as follows:


Sec.  635.27  Quotas.

    (a) * * *
    (1) * * *
    (i) Catches from vessels for which General category Atlantic Tunas 
permits have been issued and certain catches from vessels for which an 
HMS Charter/Headboat permit with a commercial sale endorsement has been 
issued are counted against the General category quota in accordance 
with Sec.  635.23(c)(3). Pursuant to paragraph (a) of this section, the 
amount of large medium and giant bluefin tuna that may be caught, 
retained, possessed, landed, or sold under the General category quota 
is 466.7 mt, and is apportioned as follows, unless modified as 
described under paragraph (a)(1)(ii) of this section:
* * * * *
    (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 with a 
commercial sale endorsement (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 under harvests, 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 with a commercial sale endorsement (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
9. In Sec.  635.31, revise paragraphs (a)(1) and (c)(6) to read as 
follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) A person that owns or operates a vessel from which an Atlantic 
tuna is landed or offloaded may sell such Atlantic tuna only if that 
vessel has a valid HMS Charter/Headboat permit with a commercial sale 
endorsement; a valid General, Harpoon, Longline, Purse Seine, or Trap 
category permit for Atlantic tunas; or a valid HMS Commercial Caribbean 
Small Boat permit issued under this part and the appropriate category 
has not been closed, as specified at Sec.  635.28(a). However, no 
person may sell a bluefin tuna smaller than the large medium size 
class. Also, no large medium or giant bluefin tuna taken by a person 
aboard a vessel with an Atlantic HMS Charter/Headboat permit fishing in 
the Gulf of Mexico at any time, or fishing outside the Gulf of Mexico 
when the fishery under the General category has been closed, may be 
sold (see Sec.  635.23(c)). A person may sell Atlantic bluefin tuna 
only to a dealer that has a valid permit for purchasing Atlantic 
bluefin tuna issued under this part. A person may not sell or purchase 
Atlantic tunas harvested with speargun fishing gear.
* * * * *
    (c) * * *
* * * * *
    (6) A dealer issued a permit under this part may not first receive 
silky sharks, oceanic whitetip sharks or scalloped, smooth, or great 
hammerhead sharks from an owner or operator of a fishing vessel with 
pelagic longline gear on board, or from the owner of a fishing vessel 
issued both a HMS Charter/Headboat permit with a commercial sale 
endorsement and a commercial shark permit when tuna, swordfish or 
billfish are on board the vessel, offloaded from the vessel, or being 
offloaded from the vessel.
* * * * *
0
10. In Sec.  635.71, revise paragraph (a) and add paragraph (a)(62) to 
read as follows:


Sec.  635.71  Prohibitions.

    (a) * * *
    (2) Fish for, catch, possess, retain, land, or sell Atlantic HMS 
without the appropriate valid vessel permit, LAP, EFP, scientific 
research permit, display permit, chartering permit, or shark research 
permit on board the vessel, as specified in Sec. Sec.  635.4 and 
635.32.
* * * * *
    (62) A vessel owner that has obtained an HMS Charter/Headboat 
permit without a commercial sale endorsement is prohibited from selling 
any Atlantic HMS.
* * * * *
[FR Doc. 2017-23277 Filed 10-26-17; 8:45 am]
BILLING CODE 3510-22-P