[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Rules and Regulations]
[Pages 52012-52031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19975]
[[Page 52011]]
Vol. 78
Wednesday,
No. 162
August 21, 2013
Part V
Department of Commerce
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National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 635
Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory
Species Fishery Management Plan; Amendments 7 and 8; Final Rule and
Proposed Rule
Federal Register / Vol. 78 , No. 162 / Wednesday, August 21, 2013 /
Rules and Regulations
[[Page 52012]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 635
[Docket No. 120627194-3657-02]
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: Final rule.
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SUMMARY: This final rule implements Amendment 8 to the 2006
Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management
Plan (FMP). Amendment 8 to the 2006 Consolidated HMS FMP provides
additional opportunities for U.S. fishermen to harvest swordfish using
selective gears that are low in bycatch, given their rebuilt status and
increased availability. This final rule creates new and modified
commercial fishing vessel permits that allow permit holders to retain
and sell a limited number of swordfish caught on rod and reel,
handline, harpoon, green-stick, or bandit gear. Specific management
measures under this final action include the establishment of a new
open access commercial swordfish permit, modification of HMS Charter/
Headboat permit regulations to allow for the commercial retention of
swordfish on non-for-hire trips, regional swordfish retention limits
for the new and modified permits, gear authorizations, and reporting
requirements.
DATES: This rule is effective on September 20, 2013.
ADDRESSES: Copies of the Final Amendment 8 to the 2006 Consolidated HMS
FMP, including the Final Environmental Assessment and other documents
relevant to this rule are available from the Highly Migratory Species
Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/ or
upon request from the Atlantic HMS Management Division at 1315 East-
West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Rick Pearson at 727-824-5399 or
Jennifer Cudney at 301-427-8503.
SUPPLEMENTARY INFORMATION: Atlantic 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). The authority to issue regulations under the Magnuson-
Stevens Act and ATCA has been delegated from the Secretary of Commerce
to the Assistant Administrator for Fisheries, NOAA (AA). On May 28,
1999, NMFS published in the Federal Register (64 FR 29090) regulations
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) regulations 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. The implementing regulations for
Atlantic HMS are at 50 CFR part 635.
Background
A brief summary of the background of this final action is provided
below. The details of what was proposed and the alternatives considered
are described in Draft Amendment 8 to the 2006 Consolidated HMS FMP and
its proposed rule (78 FR 12273, February 22, 2013). Those documents are
incorporated by reference, and their description of management and
conservation measures considered in the Draft Amendment 8 to the 2006
Consolidated HMS FMP and its proposed rule are not repeated here.
Additional information regarding Atlantic HMS management can be found
in the Final Environmental Assessment (Final EA) for Amendment 8 to the
2006 Consolidated HMS FMP, the 2006 Consolidated HMS FMP and its
amendments, the annual HMS Stock Assessment and Fishery Evaluation
Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/.
The comments received on Draft Amendment 8 and its proposed rule,
and our responses to those comments, are summarized below in the
section labeled ``Response to Comments.''
This rule finalizes some of the management measures, and modifies
others, that were contained in the proposed rule for Amendment 8. The
purpose of this final rule is to provide additional opportunities for
U.S. fishermen to harvest swordfish using selective gears that result
in low bycatch, given their rebuilt status and increased availability.
This rule creates a new open access Swordfish General Commercial
permit and modifies regulations for HMS Charter/Headboat vessel permit
holders to allow commercial fishing for North Atlantic swordfish in the
U.S. Exclusive Economic Zone (EEZ). The new Swordfish General
Commercial permit allows fishermen to retain and sell a limited number
of swordfish caught using only rod and reel, handline, harpoon, bandit
gear, and green-stick gear. HMS Charter/Headboat vessel permit holders
are also authorized to fish under open-access swordfish commercial
permit regulations with rod and reel and handline only, when fishing
commercially on a non-for-hire trip.
The Swordfish General Commercial permit cannot be held on a vessel
in combination with any other swordfish permits, an HMS Charter/
Headboat permit, an HMS Angling category permit, an HMS Commercial
Caribbean Small Boat permit, or any Atlantic Tunas permit except for
the Atlantic Tunas General or Harpoon category permits. The Swordfish
General Commercial permit can be held on a vessel in combination with a
commercial shark permit or an Atlantic Tunas General or Harpoon
category permit. All swordfish landed under the new/modified permit(s)
must be reported in HMS logbooks, if selected, and all sales of
swordfish must only be to federally permitted swordfish dealers.
Swordfish General Commercial permit holders may participate in
registered HMS tournaments.
This final rule also establishes four separate swordfish management
regions for the new and modified permits (Northwest Atlantic, Gulf of
Mexico, U.S. Caribbean, and Florida Swordfish Management Area) with a
zero to six swordfish retention limit range within each region for the
new or modified permit(s). As described in the response to comments
below, the Florida Swordfish Management Area and the initial default
retention limit for that area have been modified from the proposed
rule. Initial default retention limits are set at three swordfish per
vessel per trip for Northwest Atlantic and Gulf of Mexico regions; two
swordfish per vessel per trip for the U.S. Caribbean; and zero
swordfish per vessel per trip limit for the modified Florida Swordfish
Management Area. The retention limit within each region may be adjusted
in-season based upon pre-established criteria (i.e., dealer reports,
landing trends, quota availability, availability of swordfish on
fishing grounds, variations in seasonal distribution, abundance, or
migration patterns, and other relevant factors) through the framework
procedures codified at Sec. 635.34.
Response to Comments
During the proposed rule stage, NMFS received approximately 210
written
[[Page 52013]]
comments from the public. NMFS also received comments from the Atlantic
HMS Advisory Panel and from constituents who attended the five public
hearings held in St. Petersburg, FL; Silver Spring, MD; Gloucester, MA;
Ft. Lauderdale, FL; and Manahawkin, NJ. Comments were also received
during three conference call/webinars held on March 11, 2013; April 18,
2013; and April 30, 2013. A summary of the comments received on the
proposed rule during the public comment period is provided below with
NMFS's responses. All written comments submitted during the comment
period can be found at http://www.regulations.gov/ by searching for
NOAA-NMFS-2013-0026.
Comment 1: NMFS received comments both in support of, and opposed
to, implementing a new open-access Swordfish General Commercial permit
that would authorize the use of rod and reel, handline, harpoon, bandit
gear, and green-stick (preferred alternative 1.2.4) . Commenters
supporting the proposed new permit stated that it would provide
additional opportunities to fish for a fully rebuilt species using
selective fishing gears which have little bycatch and few dead
discards; create new opportunities to catch more of the U.S. swordfish
quota; generate economic opportunities for commercial fishermen during
difficult economic times; safely increase the number of available
handgear permits without threatening the long-term sustainability of
the stock; and maintain existing limited access permit valuation by
establishing low retention limits.
Opponents of a new commercial swordfish permit said the need to
expand harvesting capacity in the U.S. North Atlantic swordfish fishery
has steadily diminished and the U.S. swordfish quota is almost fully
utilized; a new permit could prompt an early closure of the directed
swordfish fishery; swordfish are not sufficiently abundant to open a
new fishery or increase catches; commercial swordfish limited access
permits are not scarce and the costs of the permits are not a barrier
to entering the commercial fishery; a new open access permit would
undermine full-time commercial fishermen by allowing quasi-commercial
fishermen to harvest swordfish; and an open-access commercial swordfish
permit would lower limited access permit values and swordfish ex-vessel
prices (due to an increased supply of low quality product). Many of the
commenters opposed to the establishment of a new commercial swordfish
permit recommended the No Action alternative.
Response: NMFS has determined that establishing and implementing
new and modified commercial vessel permits to allow for a limited
number (0-6) of swordfish caught on rod and reel, handline, harpoon
gear, green-stick, or bandit gear to be retained and sold is warranted.
This action will provide additional opportunities for U.S. fishermen to
harvest swordfish using selective gears that result in low bycatch,
given the rebuilt status of swordfish and their increased availability.
The goal of this action is to more fully utilize the U.S. swordfish
quota allocation, which is based upon the recommendation of the
International Commission for the Conservation of Atlantic Tunas
(ICCAT).
Based upon the 2009 ICCAT SCRS swordfish stock assessment, the
North Atlantic swordfish stock is fully rebuilt. The United States'
annual baseline quota for North Atlantic swordfish is derived from
ICCAT Recommendation 10-02, and is published each year through
rulemaking in the Federal Register. ICCAT Recommendation 10-02 also
authorizes the United States to carry forward up to 25 percent of the
baseline U.S. quota to determine the annual adjusted U.S. quota. Both
domestic landings and estimated dead discards are counted against each
year's adjusted quota to determine compliance with the quota. Since
1997, domestic landings and estimated dead discards of North Atlantic
swordfish have been below both the baseline and adjusted U.S. quotas.
Although the margin between landings and available quota has narrowed
in recent years, there remains a large amount of unused North Atlantic
swordfish quota. In 2011, the United States was 766.6 mt (dw) below its
baseline swordfish quota. Implementing a new open-access swordfish
handgear permit with low retention limits will provide additional
opportunities to harvest this available quota, without exceeding it.
Landings derived from the new permit will be closely monitored through
dealer reports, and adjustments to regional retention limits could be
implemented if necessary to reduce the likelihood of an early closure
to the directed fishery.
Swordfish limited access permits (LAPs), while available, can be
difficult or expensive to obtain. Because no new swordfish permits have
been issued since 1999, many HMS LAPs have increased in value. The cost
of a swordfish handgear LAP ranges from $15,000 to $30,000, either of
which amount constitutes a high percentage of an individual vessel
owner's profits in a given year. They are also governed by restrictions
limiting the size and horsepower of the vessel to which the permits can
be transferred. Implementing a new open-access swordfish handgear
permit with low retention limits will remove barriers to obtaining a
limited access permit, and allow other commercial fishermen to
participate in the swordfish fishery on a small-scale, seasonal, or
supplemental basis.
Implementing a new open-access swordfish handgear permit is not
anticipated to undermine the existing commercial swordfish fishery
because landings under the new permit will be governed by low retention
limits that could be adjusted in-season to reduce the likelihood of a
directed fishery closure. The new permit is substantially different
from existing swordfish limited access permits: There are very low
retention limits (0-6 swordfish) associated with it, and only handgear
usage is authorized. Because of these important differences, the values
of existing swordfish limited access permits which have either no
retention limits (directed and handgear) or a much higher retention
limits (incidental), and which allow the use of pelagic longline gear
(directed and incidental) and buoy gear (directed and handgear), are
not expected to be greatly impacted.
The new open access Swordfish General Commercial permit could
affect swordfish ex-vessel prices in either direction, up or down;
however, comments received from fishing industry participants regarding
this issue were mixed. Some commenters stated that the additional
volume and poor quality of product would result in lower ex-vessel
prices. Other commenters indicated that prices would stabilize due to
less fluctuation in domestic landings, or potentially increase due to
the introduction of reliably high quality product into the U.S. market.
NMFS does not anticipate that the projected low level of landings
derived from new and modified swordfish permits will be large enough to
greatly impact prices, either higher or lower, because ex-vessel prices
are impacted by a number of factors, most notably the large volume of
fresh and frozen swordfish imported into the U.S. market.
Comment 2: NMFS should create a new limited access permit, not an
open access permit. NMFS should require a minimum amount of income from
commercial fishing in order to qualify for the new limited access
permit. The number of new limited access permits should be very low,
and there should be
[[Page 52014]]
a sunset date for the new permits where they would be valid only for a
pre-specified number of years.
Response: The open access commercial permit being implemented is
substantially different from existing swordfish limited access permits.
Very low retention limits (0-6 swordfish) are being implemented and
only handgear usage is authorized. Pelagic longline gear and buoy gear
are not authorized for the new Swordfish General Commercial permit. In
contrast, there are no retention limits for current swordfish directed
and handgear limited access permit holders, and swordfish incidental
limited access permit holders have a 30-fish per trip retention limit.
Pelagic longline gear is authorized for swordfish directed and
incidental limited access permits, and buoy gear is authorized for
swordfish directed and handgear limited access permits. Because of the
large potential harvesting capacity associated with these permits,
swordfish limited access permits are restricted in number and are also
governed by transfer, renewal, training, and vessel upgrading
regulations. These regulations have impacted the ability of some vessel
owners to participate in the commercial swordfish fishery using
handgears only. Because this rule implements a small-scale handgear
fishery that is primarily governed by low retention limits and in-
season adjustment criteria, a new swordfish limited access permit is
not needed.
Comment 3: NMFS should allow HMS Charter/Headboat permit holders to
fish commercially for swordfish on non-for-hire trips under the
applicable regional retention limit. A charter boat operator is already
a commercial fisherman whose income is derived principally from charter
and commercial fishing.
Response: NMFS agrees that HMS Charter/Headboat permit holders
should be allowed to fish commercially for swordfish under the
applicable commercial regional retention limits when they are not on a
for-hire trip due to the dual commercial and recreational nature of the
charter/headboat fishery. A similar allowance for charter/headboat
vessels exists in the commercial Atlantic tunas fishery. This rule also
specifies that swordfish captured on a for-hire trip may not be sold.
NMFS defines a ``for-hire'' trip as a trip carrying a fee-paying
passenger; having more than three persons for a vessel licensed to
carry six or fewer; or having more persons aboard than the number of
crew specified on the vessel's Certificate of Inspection for U.S. Coast
Guard inspected vessels. The number of persons aboard includes the
captain and crew.
Comment 4: NMFS should implement a three-fish retention limit in
the Florida Swordfish Management Area for HMS Charter/Headboat permit
holders only. A percentage of income as a charter boat ([square] 50
percent) should be required to qualify for the higher retention limit
so that only full-time charter operators could participate as
commercial vessels. Part-time charter operators should only be allowed
to obtain an HMS Angling category permit.
Response: NMFS is not implementing a separate swordfish commercial
permit or a higher retention limit for HMS Charter/Headboat permit
holders meeting certain income requirements and operating in the
Florida Swordfish Management Area. As described in the response to
Comment 2 above, a limited access permit or the establishment of new
permit qualification criteria (including an income threshold) are not
needed due to the comparatively low swordfish retention limits being
established. At this time, in order to facilitate public understanding
and enforcement of the new regulations, NMFS is implementing a single
regional swordfish retention limit to govern all handgear vessels
fishing under the new open-access commercial swordfish regulations.
Comment 5: NMFS should not establish a Florida Swordfish Management
Area to include the East Florida Coast Pelagic Longline Closed Area
through the northwestern boundary of Monroe County, FL, in the Gulf of
Mexico. Instead, NMFS should establish the boundary to only include the
Florida counties of St. Lucie, Martin, Palm Beach, Broward, Dade, and
Monroe. These counties require specific management due to the limited
area for swordfish fishing and the number of fishers using the area.
There could be some flexibility for the Florida Swordfish Management
Area/Northwest Atlantic area boundary so that there could be more
fishing effort in areas north of Palm Beach, FL. Under the proposed
alternative, persons fishing beyond the Florida Swordfish Management
Area and east of Ft. Pierce, FL, in the Northwest Atlantic region would
have to transit to north of the Georgia border to land their three
swordfish because they could not come straight into Ft. Pierce, FL,
which would create a burden for some fishermen and also pose a
potential safety issue.
Response: In response to public comment, NMFS has modified the
proposed Florida Swordfish Management Area by removing that portion of
the area north of 28[deg]17'10'' N. lat. The new northern boundary line
now intersects the U.S. mainland near Rockledge, FL, and the coastline
between Cape Canaveral, FL, and Melbourne, FL, near Cocoa Beach, FL.
The modified area is smaller in geographic area than the proposed area,
but larger than the alternative that only included six counties. As
described in the proposed rule and draft environmental assessment, the
area off the southeastern coast of Florida, particularly the Florida
Straits, contains oceanographic features that make the area
biologically unique. It provides important juvenile swordfish habitat,
and is essentially a narrow migratory corridor containing high
concentrations of swordfish located in close proximity to high
concentrations of people who may fish for them. The modified Florida
Swordfish Management Area being implemented more closely encompasses
the Florida Straits and the oceanographic features that make this area
biologically unique, yet is large enough to provide an enforceable
buffer area. Public comment indicated a concern about increased catches
of juvenile swordfish, the potential for larger numbers of fishermen in
the area, and the potential for crowding of fishermen, which could lead
to potential fishing gear and user conflicts. Modifying the area to
more closely correspond to the actual oceanographic features that make
the area unique will improve future conservation and management of
swordfish, while minimizing impacts on fishermen operating both in the
relatively narrow area of the Florida Straits and fishermen operating
north of this area where swordfish are less concentrated, consistent
with the objectives of this action. This modification is within the
range of alternatives considered for the Florida Swordfish Management
Area in Draft Amendment 8 and is a logical outgrowth of further
consideration of impacts of the Area boundary and public comment.
Comment 6: NMFS received various comments indicating that the
initial default retention limit within the Florida Swordfish Management
Area should be set at a number ranging from zero to six fish. Comments
in favor of increasing the proposed initial default limit of one
swordfish indicated that a one-swordfish limit in the Area would not
provide enough revenue to make a commercial fishing trip economically
feasible, so there would be little incentive for people to obtain the
new permit. Commenters in favor of a lower limit (i.e., zero fish) for
the Area stated that there is not enough open water
[[Page 52015]]
available in South Florida to handle the added fishing pressure that
the new commercial fishing effort would bring; that the very small area
is already extremely congested with commercially-permitted vessels and
recreational fishermen; that a balance between recreational and
commercial fishermen has developed in the Florida Straits where
everybody is able to fish together; and that a large number of new
entrants commercially targeting swordfish in the area would unsettle
that balance and inevitably cause user conflicts that would negatively
affect Southeast Florida's recreational and commercial fishing
industry. Several commenters also indicated that NMFS should not
increase commercial fishing effort in an important swordfish spawning
and juvenile habitat area.
Response: Because this final rule establishes a new open-access
commercial swordfish permit, NMFS will issue these permits in an
orderly and cautious manner from the outset. This is particularly
important off the southeast coast of Florida, due to the area's unique
oceanographic and biological characteristics that provide important
juvenile swordfish habitat and swordfish fishing grounds within easy
access to a large number of fishers. In consideration of public
comments, including a comment from the Florida Fish and Wildlife
Conservation Commission, indicating a high potential for the rapid
growth of a commercial fishery in the Florida Swordfish Management Area
under the proposed retention limit of one swordfish per vessel per
trip, NMFS has determined that an initial default retention limit of
zero swordfish is appropriate in the modified Florida Swordfish
Management Area for vessel owners issued a Swordfish General Commercial
permit. A commercial retention limit of zero swordfish in the Florida
Swordfish Management Area will also apply to HMS Charter/Headboat
permitted vessels in the Area when they are not on a for-hire trip.
Unless this commercial retention limit is modified in the future, HMS
Charter/Headboat permitted vessels in the Florida Swordfish Management
Area will not be allowed to sell swordfish unless the vessel also has a
Swordfish Handgear limited access permit. HMS Charter/Headboat
permitted vessels may retain, but not sell swordfish, under
recreational retention limits. HMS Charter/Headboat permitted vessels,
when not on a for-hire trip and located outside the Florida Swordfish
Management Area, may retain and sell swordfish within the applicable
regional retention limit. NMFS will continue to collect information to
evaluate the appropriateness of this and other regional retention
limits in the future using in-season adjustment authority.
Comment 7: NMFS received various comments indicating that the
initial default retention limits within the northwest Atlantic region
and the Gulf of Mexico should be set at a level that is either higher
or lower than the proposed limit of three swordfish per vessel per
trip. Comments in favor of increasing the initial default limit
indicated that a higher limit is needed to make commercial fishing
trips economically feasible because of the long distance to swordfish
fishing grounds in these areas. A higher retention limit of six to an
unlimited number of fish would provide additional revenue and allow for
profits while covering the high costs (fuel, crew, food, bait, etc.)
associated with such trips. Comments in favor of decreasing the
proposed initial default retention limit indicated that lower limits
are needed to preserve the value of existing limited access permits, to
conserve swordfish, to ensure that the U.S. swordfish quota is not
exceeded, or to prevent an early closure of the directed fishery.
Response: NMFS has determined that most Swordfish General
Commercial permit holders will likely participate in the commercial
swordfish fishery to supplement their primary fishing activities (i.e.,
tuna fishing and charter fishing). The three-fish initial default
retention limit being implemented for the Northwest Atlantic and Gulf
of Mexico areas is in the middle of the range of limits being
considered, and is appropriate for the initial establishment of a new
supplemental or seasonal open-access swordfish fishery. As additional
fishery information becomes available--including the number of new
permits issued, changes in landings, and impacts on the attainment of
the U.S. North Atlantic swordfish quota--NMFS will continue to evaluate
the appropriateness of modifying these limits using in-season
adjustment authority.
Comment 8: Establishing in-season adjustment criteria to quickly
modify the regional retention limits would effectively control the
proposed open-access swordfish fishery, and provide NMFS with the
ability to make timely adjustments to restrict or increase harvest as
necessary. Conversely, in-season adjustment authority might discourage
people from obtaining the proposed permit because they would be unsure
of future retention limits.
Response: NMFS agrees that establishing in-season adjustment
authority to quickly modify the regional retention limits based upon
pre-established criteria, in conjunction with effective monitoring of
swordfish landings through the HMS e-Dealer system, provides the
ability to effectively control the new open-access swordfish fishery.
For example, if swordfish landings from newly permitted vessels are
higher than projected, NMFS could reduce the retention limits to
minimize the likelihood of an early closure of the directed fishery or
to ensure that the U.S. swordfish quota is not exceeded. Conversely, if
participation in the new fishery and resultant swordfish landings are
low, limits could be increased. NMFS' current projections indicate that
adequate swordfish quota is available to accommodate the anticipated
level of landings derived from the new permit. NMFS will publish in-
season adjustments to retention limits in the Federal Register, as
needed.
Comment 9: The Gulf of Mexico region should be broken into two
regions separated by the 29[deg] N. lat. line (a line slightly north of
a latitudinal line extending from Freeport, TX, to Crystal River, FL)
because of differing transit times to productive grounds, and the need
for differing retention limits to facilitate profitable trips.
Response: Transit times to productive swordfish grounds in the Gulf
of Mexico vary not only from the north and south, but also from the
east and west. Implementing multiple fishing regions for the swordfish
fishery in the Gulf of Mexico may potentially cause confusion among
fishermen and complicate quota monitoring and enforcement. In addition,
the Gulf of Mexico is managed as one large area for current swordfish
limited access permit holders, thus NMFS prefers to implement a single
regional commercial swordfish retention limit to govern all Swordfish
General Commercial and HMS Charter/Headboat permitted vessels fishing
in the Gulf of Mexico. Retention limits within the Gulf of Mexico could
be adjusted in the future using in-season authority based upon the
attainment of pre-specified criteria (i.e., dealer reports, landing
trends, quota availability, availability of swordfish on fishing
grounds, variations in seasonal distribution, abundance, or migration
patterns, and other relevant factors). NMFS will continue to consider
other management measures to increase domestic swordfish landings and
revenues, while minimizing bycatch, and may consider separating the
Gulf of Mexico region into sub-regions in the future.
[[Page 52016]]
Comment 10: The proposed allowance for Swordfish General Commercial
permit holders to participate in registered HMS fishing tournaments
might increase recreational HMS Angling category permit holder interest
in obtaining the proposed permit.
Response: NMFS agrees. NMFS expects that most new permit applicants
will be current recreational swordfish fishermen with HMS Angling
category permits or current commercial tuna fishermen with Atlantic
Tunas General or Harpoon category permits resulting in a shift of
effort from these fisheries to the commercial swordfish handgear
fishery, but not a large increase in overall fishing effort. The
allowance for fishing in registered HMS fishing tournaments is
consistent with current Atlantic Tunas General category regulations,
which allow permit holders to participate in registered HMS
tournaments.
Comment 11: NMFS received contrasting comments regarding the
authorization of buoy gear for the proposed Swordfish General
Commercial permit. Commenters opposed to the concept indicated that
buoy gear should not be authorized for use with the proposed Swordfish
General Commercial permit, and should remain authorized only for
swordfish directed and handgear limited access permit holders. Other
commenters said that NMFS should authorize buoy gear for the proposed
Swordfish General Commercial permit and also for the Atlantic Tunas
General category permit, except in the Florida Swordfish Management
Area.
Response: Authorization of buoy gear for the proposed Swordfish
General Commercial permit is not within the range of alternatives
analyzed in Amendment 8. Buoy gear is only authorized for persons with
valid swordfish directed or handgear limited access permits. Comments
from the HMS Advisory Panel in recent years have reflected public
concern about user conflicts with buoy gear within the narrow
geographic range of the current buoy gear fishery off the southeast
coast of Florida. With this in mind, a potentially large number of
applicants for a new Swordfish General Commercial permit could
represent a potentially large increase in the amount of buoy gear
fished, and might increase the potential for gear conflicts. Under
Amendment 8, NMFS is authorizing fishing gears under the new Swordfish
General Commercial permit that are consistent with the fishing gears
authorized for the Atlantic Tunas General category permit. There is
very little catch and bycatch information available regarding buoy gear
used to target swordfish outside of the Florida Straits, and there is
no information available regarding buoy gear used to target tunas in
the Atlantic Ocean and Gulf of Mexico. Because of the potential for
large increases in the amount of buoy gear fished, the potential for
fishing gear conflicts, and the absence of information regarding buoy
gear fishing to target tunas which limits the Agency's ability to
analyze the impacts of additional buoy gear usage under open access
commercial permits on incidentally caught or bycatch species (such as
billfish and bluefin tuna), NMFS is not authorizing additional buoy
gear usage in this final rule.
Comment 12: NMFS should implement an open-access swordfish harpoon
category permit similar to the existing Atlantic Tunas Harpoon category
permit and allow at least 15 swordfish per trip to be landed. Swordfish
caught with harpoons are generally greater in size than swordfish
caught by other methods, and there is no bycatch. A three-fish limit is
not economically feasible because swordfish are not abundant in near-
shore waters, and it often takes days or weeks to make a full trip.
Response: The open access Swordfish General Commercial permit being
implemented is intended to facilitate a small-scale supplemental or
seasonal swordfish fishery that includes the harvest of swordfish with
harpoons. NMFS anticipates that commercial fishermen may be interested
in fishing with this new permit to supplement their primary commercial
fishing activities. There is already a commercial Swordfish handgear
limited access permit with unlimited swordfish retention that
authorizes the use of harpoon gear. Under the new Swordfish General
Commercial permit, the initial three-fish retention limit is
purposefully conservative for the implementation of a new open-access
swordfish permit. In the future, as additional fishery information
becomes available, NMFS could consider increasing the retention limit
based upon the in-season adjustment criteria.
Comment 13: NMFS did not consider a reasonable range of
alternatives in analyzing Amendment 8 to the 2006 Consolidated HMS FMP,
and did not provide an explanation of why other reasonable
alternatives, such as opening areas currently closed to pelagic
longline gear, were not considered.
Response: To provide additional opportunities for U.S. fishermen to
harvest swordfish using selective gears that are low in bycatch, given
their rebuilt status and increased availability, NMFS prepared a Draft
EA that analyzed a wide range of reasonable options. Specifically, the
alternatives considered two main issues: (1) The implementation of new
and modified commercial swordfish vessel permits and authorized gears
to allow for a limited number of swordfish to be retained and sold;
and, (2) the establishment of retention limits associated with the new
and modified permits.
With respect to vessel permitting and authorized gears, NMFS
considered three alternatives and four sub-alternatives. These ranged
from a no-action alternative, which maintains the current swordfish
limited access permit structure, to creating a new or modified
commercial swordfish permit(s) to allow for a limited number of
swordfish caught on rod and reel, handline, harpoon gear, green-stick,
or bandit gear to be retained and sold. With respect to swordfish
retention limits, NMFS considered three main alternatives and five sub-
alternatives. These ranged from establishing a fishery-wide zero-to-six
fish retention limit range for the new or modified permits(s), and
codifying a single limit within that range, to establishing separate
regions with regional retention limits that could be adjusted in-season
based upon pre-established criteria (i.e., dealer reports, landing
trends, quota availability, availability of swordfish on the fishing
grounds, variations in seasonal distribution, abundance, or migration
patterns, and other relevant factors).
Based upon the analysis in the Draft EA, NMFS determined that the
preferred alternatives were unlikely to have any significant adverse
environmental impacts, primarily because the authorized handgears are
low in bycatch and bycatch mortality of protected and non-target
species, and because of the rebuilt status of the North Atlantic
swordfish stock.
In the Draft EA, NMFS also considered several alternatives that
were not further analyzed, such as implementing a swordfish tagging
program to provide a higher level of reporting and to facilitate the
enforcement of swordfish regulations. After consulting with the HMS
Advisory Panel and other interested constituents, NMFS decided not to
further analyze these alternatives due to concerns about the
effectiveness of a tagging program to reliably identify swordfish bound
for commerce. Furthermore, establishing an open-access commercial
swordfish permit is expected to reduce the incentive for recreational
anglers to illegally sell or transfer swordfish to commercial fishermen
for later sale; the
[[Page 52017]]
response to Comment 34 has more information regarding swordfish tagging
alternatives. The Draft EA analyzed a reasonable range of alternatives
to meet the objectives of the action. Other alternatives such as re-
opening pelagic longline closed areas do not meet the purpose of the
proposed action due to the relatively higher bycatch of several species
that are either overfished and/or subject to overfishing (e.g., bluefin
tuna, marlins) or are listed under the Endangered Species Act (e.g.,
sea turtles); therefore, those alternatives were not considered in this
action.
Comment 14: NMFS should consider minor adjustments to the time/area
closures of the East Florida Coast and Charleston Bump pelagic longline
closures. A slight adjustment to the size, shape and duration of those
closures could allow the United States to fill its North Atlantic
swordfish quota. Experimental longline fishing conducted there has
proven the viability of swordfish landings with minimum bycatch of
small swordfish or billfish. NMFS could increase observer coverage on
pelagic longline vessels in these areas to better monitor catch and
bycatch. Any benefits of the north Atlantic swordfish recovery should
be aimed at the current directed fisheries, because the recovery was
realized by the sacrifice of these fishermen.
Response: The scope of Amendment 8 is to create additional
opportunities for the commercial harvest of swordfish using selective
gears (rod and reel, handline, harpoon, bandit gear, and greenstick)
that are low in bycatch, based upon the fact that the North Atlantic
swordfish stock is fully rebuilt and the U.S. quota has been
underutilized for over a decade. Since 2007, NMFS has implemented
numerous other management measures to increase domestic swordfish
landings, which are almost entirely by pelagic longline gear, and
revenues while minimizing bycatch. As part of these regulations, NMFS
increased the retention limit for pelagic longline vessels issued
incidental swordfish limited access permits from two fish to 30 fish
per vessel per trip; streamlined limited access permit issuance;
implemented a change to the swordfish minimum size requirements from 29
inches to 25 inches cleithrum to caudal keel; and implemented a new HMS
Commercial Caribbean Small Boat permit with a two swordfish per vessel
per trip limit.
Other alternatives, such as opening or modifying pelagic longline
closed areas, do not meet the objectives of the action. Pelagic
longline gear has higher bycatch levels of several species that are
either overfished and/or subject to overfishing (e.g., bluefin tuna,
marlins) or are listed under the Endangered Species Act (e.g., sea
turtles). Therefore, those alternatives were not considered in this
action. NMFS will continue to consider additional measures that could
be taken to increase swordfish landings and that would benefit the
pelagic longline fishery, while also minimizing bycatch and bycatch
mortality.
Comment 15: NMFS should allow more buoys to be deployed for permit
holders that are authorized to fish with buoy gear. This regulatory
change would produce more swordfish.
Response: Currently, vessels fishing with buoy gear are limited to
possessing or deploying no more than 35 floatation devices. In the 2006
Consolidated HMS FMP, NMFS determined that 35 buoys was the maximum
amount of buoy gear that a vessel could effectively deploy at one time
without losing excessive amounts of unattended floating gear and
increasing interactions with sea turtles or other protected resources.
The authorization of additional buoy gear was not considered in Draft
Amendment 8, and therefore is outside the scope of this final rule.
NMFS will continue to consider additional measures that could be taken
to increase swordfish landings as needed, while minimizing bycatch and
bycatch mortality.
Comment 16: NMFS should remove all of the restrictions requiring
multiple permits aboard vessels that only intend to fish for swordfish
with handgear, or otherwise have no longline gear on board. All
directed or incidental swordfish limited access permits should be
available for handgear usage, without needing to obtain shark and tuna
longline limited access permits. There are many latent limited access
permits in these categories that are restricted by an unnecessary link
to pelagic longline gear usage.
Response: NMFS recognizes that current HMS permit regulations have
impacted the ability of some vessel owners to participate in the
commercial swordfish fishery using handgear only. The regulations
governing swordfish directed and incidental limited access permits and
authorized gears were developed primarily to provide fishing
opportunities for multiple fisheries, including tunas, swordfish, and
sharks, because of the potential to catch any of these species groups
when deploying pelagic longline gear. The possession of pelagic
longline gear onboard a vessel also triggers several restrictions and
requirements that are unique to that gear because of protected species
and other bycatch concerns. Modification of these limited access permit
requirements and fishing gear authorizations could indirectly affect
HMS directed and incidental fisheries and bycatch species in myriad
ways, and were not considered in this rulemaking. The existing
regulatory structure of these permits facilitates reporting
requirements and data collection, while still providing the flexibility
to target several species using a variety of gears. In contrast, the
existing Swordfish Handgear limited access permit is available for use
without the need to be issued other limited access permits, and there
is no swordfish retention limit associated with it. The new open-access
Swordfish General Commercial permit will provide additional
opportunities for U.S. fishermen to harvest swordfish using handgear as
a supplemental or seasonal fishery. NMFS has previously considered
modifications to, and streamlining of, the HMS limited access permit
structure and will continue to do so; however, this subject was not
analyzed in Draft Amendment 8 and is outside the scope of the final
rule.
Comment 17: NMFS should reactivate a small number of limited access
swordfish permits that have been terminated.
Response: Under current regulations, swordfish and shark limited
access permits must be renewed annually, and are terminated if they are
not renewed within 1 year of expiration. The purpose of permit
termination is to remove unused, latent commercial permits from the
swordfish and shark fisheries. In recent years, NMFS has implemented
several management measures to increase domestic swordfish landings
while minimizing bycatch, and may consider additional management
measures in the future. Other alternatives, such as reactivating
terminated limited access permits, do not meet the objectives of this
action. Swordfish limited access permits authorize the use of pelagic
longline gear and/or buoy gear. Pelagic longline gear has higher
bycatch levels of several species that are either overfished and/or
subject to overfishing (e.g., bluefin tuna, marlins) or are listed
under the Endangered Species Act (e.g., sea turtles). With regard to
buoy gear, as discussed in the response to comment 11, there is very
little catch and bycatch information available to analyze the impacts
of additional buoy gear usage outside of the Florida Straits, and there
is no information available regarding buoy gear used to target tunas in
the Atlantic Ocean and Gulf of Mexico. Because of the potential for
large increases in the amount of buoy gear fished, the potential for
fishing gear conflicts, and the absence of other
[[Page 52018]]
critical catch and bycatch information, NMFS did not analyze any
alternatives to authorize additional buoy gear usage. Amendment 8
specifically creates additional opportunities for the commercial
harvest of swordfish using selective gears (rod and reel, handline,
harpoon, bandit gear, and greenstick) that have minimal bycatch and
result in few discards.
Comment 18: NMFS should increase access to the swordfish stock by
providing more fishing opportunities for the recreational sector.
Response: Access to the recreational swordfish fishery is currently
provided through HMS Angling and HMS Charter/Headboat permits, which
are both open-access permits. The retention limit under the HMS Angling
permit is one swordfish per person up to four swordfish per vessel per
trip. The retention limit for HMS Charter vessels is one swordfish per
paying passenger up to six swordfish per vessel per trip. The retention
limit for HMS Headboat vessels is one swordfish per paying passenger
and up to 15 swordfish per vessel per trip. In this action, NMFS
focused on increasing access for commercial handgear fishermen to the
rebuilt swordfish stock due to the low bycatch associated with handgear
and because the ICCAT-recommended U.S. swordfish quota allocation has
been underutilized for over a decade. Therefore, since recreational
access is already open access and subject to similar retention levels,
Draft Amendment 8 did not analyze alternatives to modify HMS Angling
category limits. Since this topic was not considered in Draft Amendment
8, this request is outside the scope of the final rule.
Comment 19: NMFS should require all vessels issued a swordfish
General Commercial Permit to abide by all of the same requirements that
apply to pelagic longline vessels, including commercial fishing vessel
safety requirements, logbook reporting, observers, bycatch mitigation,
workshops, and vessel monitoring systems (VMS). The new commercial
fishermen should be required to go to protected species workshops and
to carry protected species safe handling and release gear. All new
permit holders should also be required to comply with the protected
species Careful Handling and Release Protocols.
Response: All vessels that obtain the new Swordfish General
Commercial permit will be required to comply with U.S. Coast Guard
commercial fishing vessel safety requirements. Authorized fishing gears
under the new Swordfish General Commercial permit include rod and reel,
handline, harpoon, bandit gear, and green-stick gear. On June 14, 2001,
NMFS released a Biological Opinion (BiOp) under the Endangered Species
Act, which stated that the continued operation of HMS handgear
fisheries may adversely affect, but are not likely to jeopardize, the
continued existence of any endangered or threatened species under NMFS
jurisdiction. This BiOp indicated that the potential for takes in
handgear fisheries is low, and anticipated that the continued operation
of Atlantic HMS handgear fisheries would result in documented takes of
no more than three ESA-listed sea turtles, of any species, in
combination, per calendar year. In addition, Atlantic HMS handgear
fisheries are classified as Category III under the Marine Mammal
Protection Act (MMPA) (76 FR 73912, November 29, 2011), meaning that
these fisheries have a remote likelihood of incidental mortality or
serious injury to marine mammals.
In June 2004, NMFS released a BiOp for the Atlantic pelagic
longline fishery. That BiOp concluded that the pelagic longline fishery
was not likely to jeopardize the continued existence of loggerhead,
green, hawksbill, Kemp's ridley or olive ridley sea turtles, but was
likely to jeopardize the continued existence of leatherback sea
turtles. The 2004 BiOp established a reasonable and prudent measure and
alternative, which subjected the Atlantic HMS pelagic longline fishery
to time/area closures, VMS, observers, hook and bait restrictions,
compliance with safe handling and release protocols, and mandatory
protected species safe handling and release workshops. Additionally,
the pelagic longline fishery has been designated as a Category I
fishery under the MMPA because it has frequent incidental mortality and
serious injury of marine mammals.
Thus, many of the management measures required under the Endangered
Species Act and Marine Mammal Protection Act for the Atlantic HMS
pelagic longline fishery do not apply to the new Swordfish General
Commercial permit, because the potential for protected species
interactions with the gears authorized under this permit is low. The
suggested requirements for protected species bycatch mitigation
measures, protected species release and disentanglement training
workshops and VMS requirements are not warranted for the gears
authorized in this final rule. These requirements were not analyzed in
the Draft EA because they are outside the scope of this rulemaking.
Comment 20: Any interactions with protected species by new permit
holders would be considered ``takes,'' and these would increase. NMFS
also needs to consider the interactions with dusky sharks when there
could potentially be 4,100 boats deploying J-hooks.
Response: ESA-listed species taken with handgear would be counted
against the Incidental Take Statement (ITS) established in the 2001
BiOp. NMFS expects that most new permit applicants will be current
recreational swordfish fishermen with HMS Angling category permits or
current commercial tuna fishermen with Atlantic Tunas General or
Harpoon category permits, resulting in a shift of effort from these
fisheries to the commercial swordfish handgear fishery, but not a large
increase in overall fishing effort. In addition, the initial
implementation of a zero-fish default retention limit in the Florida
Swordfish Management Area will not change current fishing effort in an
area with high concentrations of recreational anglers and commercial
buoy gear fishermen. For these reasons, and because handgear has a
remote likelihood of interactions with protected species, NMFS does not
anticipate that interactions with protected species will increase in
any way that has not been previously analyzed in the 2001 BiOp as a
result of implementation of the new permit. Similarly, NMFS does not
expect a large increase in interactions with other species, including
dusky sharks. NMFS will consider conservation and management measures
for dusky sharks separately in Amendment 5b to the 2006 Consolidated
Atlantic HMS FMP.
Comment 21: Landings from the proposed new permit should not be
deducted from the directed swordfish quota. NMFS should establish a
separate quota category (two to five percent of the overall quota) for
these landings to protect the pelagic longline fishery quota from a
closure of the directed fishery.
Response: The new swordfish general commercial permit is a directed
swordfish permit; therefore, it is appropriate for landings from this
new permit to be counted against the directed swordfish quota. Under
ATCA and the Magnuson-Stevens Act, NMFS is required to provide U.S.
fishing vessels with a reasonable opportunity to harvest the U.S. ICCAT
quota. However, the directed swordfish quota has been under-harvested
for over a decade. NMFS has determined that additional swordfish
landings derived from this new permit could be counted against the
directed quota without fully reaching the U.S. ICCAT-recommended
[[Page 52019]]
quota. The ability to quickly adjust the regional swordfish retention
limits using in-season authority and pre-established criteria gives
NMFS the flexibility to manage the directed swordfish quota as
necessary.
Comment 22: A Finding of No Significant Impact (FONSI) is not
justified. NMFS must provide a full Environmental Impact Statement
(EIS) on this proposed action, which has the potential to significantly
increase the number of permit holders, alter traditional landing
patterns, negatively impact current limited access permit holders in
this fishery, and have significant economic and social impacts.
Response: NMFS has determined that the new Swordfish General
Commercial permit is not expected to result in cumulative effects that
could have a significant effect on target species or non-target species
or the human environment. The cumulative impacts of ongoing swordfish
fishery management actions, including those in this proposed action,
are expected to be positive from both an ecological and socio-economic
perspective. If the United States is successful at increasing its North
Atlantic swordfish landings and maintaining its international swordfish
quota, it will realize increased gross revenues to U.S. fishermen who
are participating in a well-managed, sustainable fishery. NMFS has
determined that there would not be a significant increase in fishing
effort under any of the proposed measures because most new Swordfish
General Commercial permit holders are likely already participating in
the recreational swordfish fishery, the Atlantic Tunas General or
Harpoon category fisheries, or the HMS Charter/Headboat fishery. 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 will be restricted to using only authorized handgear (rod
and reel, handline, harpoon, bandit gear, and green-stick), and must
comply with the applicable regional swordfish retention limits. These
traditional handgears are closely tended by fishermen. So while the
likelihood of interactions with non-target or bycatch species is low,
any incidentally-caught non-target species can usually be quickly and
safely released. Under the proposed action, NMFS anticipates that
fishermen using handgear will have no adverse impacts on ESA-listed
species beyond those analyzed in the 2001 BiOp, which concluded that
the HMS handgear fishery will not jeopardize any ESA-listed species.
Having solicited and reviewed public comment on the Draft EA, and
in view of the information presented in the Final EA that was prepared
to address proposed changes to the U.S. North Atlantic swordfish
fishery, particularly the small-scale handgear fishery, NMFS has
determined that this action will have no significant impact on the
quality of the human environment as described above and in the proposed
EA. In addition, all impacts to potentially affected areas, including
national, regional, and local, have been mitigated to reach the
conclusion of no significant impact. Accordingly, NMFS determined that
preparation of an EIS for this action was not necessary.
Comment 23: NMFS has not adequately assessed the potential
ecological impacts on protected species and juvenile swordfish. Current
guidance from the Council on Environmental Quality (CEQ) requires that
agencies consider greenhouse gas emissions associated with any proposed
actions and evaluate the carbon footprint associated with this new
permit.
Response: NMFS expects that most new permit applicants will be
current recreational swordfish fishermen with HMS Angling category
permits, current commercial tuna fishermen with Atlantic Tunas General
or Harpoon category permits, or current HMS Charter/Headboat permit
holders, resulting in a shift of effort from these fisheries to the
commercial swordfish handgear fishery, but not a large increase in
overall fishing effort. NMFS also determined that the new Swordfish
General Commercial permit could cause a minor increase in rod and reel,
handline, bandit gear, green-stick, and harpoon commercial fishing
effort if previously inactive fishermen obtain the new and modified
permit(s) and began fishing. This could result in a minor increase in
swordfish discards and discard mortality if fishing effort increases
substantially in areas with large concentrations of juvenile swordfish.
However, the establishment of a zero-fish retention limit in the
Florida Swordfish Management Area, where there are large concentrations
of juvenile and adult swordfish, will decrease the likelihood that
there are negative impacts to the swordfish stock due to the new
permit. Moreover, because NMFS does not expect a large increase in
overall fishing effort resulting from the new Swordfish General
Commercial permit, a significant increase in greenhouse gas emissions
is not anticipated.
Comment 24: NMFS received contrasting comments about potential
impacts on swordfish ex-vessel prices resulting from changes in
landings volume and product quality due to implementation of the
proposed permit. Some commenters stated that the proposed action would
greatly increase the number of vessels commercially fishing for
swordfish, so the ex-vessel price would decrease due to an increased
supply. Also, because newly-permitted handgear fishermen would not be
familiar with proper seafood handling methods, commenters stated that
swordfish quality and prices would decrease across the entire fishery.
Other commenters stated that the proposed permit would help to achieve
price stability by introducing a limited amount of high-quality,
dayboat swordfish into the domestic market. This is the type of small-
scale fishery that the seafood industry is looking to promote.
Response: NMFS determined that establishing the new Swordfish
General Commercial permit could have minor costs for U.S. fishermen
associated with obtaining the new permit and complying with additional
commercial fishing vessel safety requirements and fishery management
regulations. NMFS also recognizes that the new and modified permits
could affect ex-vessel swordfish prices and the values of existing
swordfish limited access permits. However, the projected low level of
landings derived from the new and modified swordfish permits is not
expected to be large enough to greatly impact swordfish prices, either
higher or lower, because ex-vessel prices are impacted by a number of
factors, most notably the large volume of fresh and frozen swordfish
imported into the U.S. market. Any other negative socio-economic
impacts on current swordfish limited access permit holders are expected
to be mitigated by the establishment of low swordfish retention limits
for the new and modified permits, including a zero-fish retention limit
in the modified Florida Swordfish Management Area. A retention limit
range of zero to six swordfish is anticipated to provide a seasonal, or
supplementary, fishery for most participants. It is not likely to
facilitate a full-time, year-round fishery. In contrast, there are no
retention limits for swordfish directed and handgear limited access
permit holders, and there is a 30-fish limit for incidental swordfish
limited access permit holders.
Positive economic benefits are expected if U.S. fishermen obtain
this open-access swordfish permit. If a new entrant lands 10 swordfish
per year with
[[Page 52020]]
the new permit, they could realize an increase in annual gross revenues
of approximately $4,320. If all the estimated 4,084 new entrants land
10 swordfish per year, total annual gross revenues from swordfish could
increase by $ 17.6 million, but quota limitations would reduce this
revenue to approximately $ 15.2 million. Economic benefits are also
anticipated for fishing tackle manufacturers and suppliers, bait
suppliers, fuel providers and swordfish dealers. In addition, this new
permit would have long-term socio-economic benefits if it creates a
situation where the U.S. swordfish quota is no longer at risk for being
reallocated to other ICCAT Parties due to low U.S. swordfish landings.
If the United States maintains its allocation of the total ICCAT-
recommended North Atlantic swordfish quota, then socio-economic
benefits would be realized by all swordfish fishery participants. For
these reasons, NMFS has determined that the net economic benefits of
the establishment of the new swordfish general commercial permit
outweigh the net economic costs to fishermen.
Comment 25: Commenters stated that NMFS had both underestimated and
overestimated the number of new permits that might be issued as a
result of the proposed action. Commenters also stated that NMFS had
both underestimated and overestimated the amount of additional landings
that might occur as a result of the proposed action. Therefore, the
potential environmental impacts associated with the proposed permit are
misrepresented.
Response: In developing the Final EA and final management measures,
NMFS considered public comments received in response to the Draft EA
and determined that the socio-economic and environmental analyses
contained in the Final EA are based upon the best available
information, and appropriately consider the potential impacts of this
action. It is not possible to predict the exact number of applicants
for a new open-access commercial fishing permit, because there are few
eligibility requirements for the new permit. Therefore, NMFS used the
total number of Atlantic Tunas General category permit holders (4,084)
as a proxy for the total number of new swordfish permit applicants,
because the Atlantic Tunas General category permit is most similar to
the permit being implemented in this action. NMFS then calculated the
number of successful Atlantic Tunas General category vessels (i.e.,
landed at least one bluefin tuna) in 2011 (583 successful vessels) and
multiplied that number by 10 swordfish per vessel/year to derive an
estimated catch of 5,830 swordfish a year. The selection of 10
swordfish per year is an estimate and some fishermen could land more
swordfish, while others could land less. The selection of 10 swordfish
per year is a reasonable proxy, particularly if many new permit holders
fish for swordfish on a part-time basis, similar to the practices of
many Atlantic Tunas General and Harpoon category permit holders when
fishing for bluefin tuna. With an average swordfish weight of 96 lb.
dressed weight (dw) in 2011, this is estimated to yield 254 mt dw of
additional swordfish landings. NMFS also multiplied the number of
Atlantic Tunas Harpoon category vessels (24) by 10 swordfish per
vessel/year to produce an estimated 240 additional swordfish caught per
year. With an average swordfish weight of 96 lb. dw in 2011, harpoon
landings are estimated to yield an additional 10.5 mt dw of U.S.
swordfish landings. In total, by combining these two estimates, the new
permit is predicted to yield 265 mt dw of additional U.S. swordfish
landings. Under the new Swordfish General Commercial permit, NMFS
estimated that total U.S. landings plus discards could approach 2,436
mt dw ((2,171 mt dw (2011 total U.S. landings reported to ICCAT) + 265
mt dw = 2, 436 mt dw)) if current fishing practices remain constant.
As described in the response to Comment 24, NMFS recognizes that
there may be minor socio-economic impacts to fishermen due to the
establishment of the new Swordfish General Commercial permit. However,
most negative socio-economic impacts on current swordfish limited
access permit holders are expected to be mitigated by the establishment
of low retention limits for the new Swordfish General Commercial
permit, including a zero retention limit in the Florida Swordfish
Management Area. A retention limit range of zero to six swordfish is
anticipated to provide a seasonal, or supplemental, fishery for most
participants. It is not likely to facilitate a full-time, year-round
fishery.
Comment 26: NMFS must consider the potential that ICCAT could
reduce the U.S. quota allocation or the overall North Atlantic
swordfish Total Allowable Catch (TAC). Recent swordfish landing trends
indicate that the United States is moving closer towards full
utilization of its swordfish quota by existing permit holders. The
proposed new permit could lead to a large increase in landings, fill
the quota quickly and, as a result, close the directed swordfish
fishery. There is not enough swordfish quota available for the new
permit.
Response: While NMFS recognizes that quota changes are possible at
ICCAT, the ability to monitor swordfish landings in near real-time with
the HMS e-Dealer system and to quickly adjust the regional swordfish
retention limits using in-season authority and pre-established criteria
gives NMFS the flexibility to manage the directed swordfish quota,
regardless of what the U.S. allocation of the ICCAT-recommended quota
may be.
NMFS estimates that the new permit will yield approximately 265 mt
dw of additional U.S. swordfish landings. Under the new Swordfish
General Commercial permit, NMFS estimates that total U.S. landings plus
discards could approach 2,436 mt dw ((2,171 mt dw (2011 total U.S.
landings reported to ICCAT) + 265 mt dw = 2,436 mt dw)) if current
fishing practices remain constant. In terms of available and unutilized
swordfish quota, there is a loss of potential income by fishermen that
would like to fish commercially for swordfish, but who are not able to
obtain limited access permits. Currently, these limited access
swordfish handgear permits can cost upwards of $30,000. Because the
North Atlantic swordfish stock is fully rebuilt and the United States
has not attained its full ICCAT-recommended swordfish quota for over a
decade, overall gross revenues are lower than they could be if the U.S
quota was fully harvested. For example, the total U.S. adjusted
swordfish quota for 2012 was 3,559.2 mt dw (7,846,612 lbs. dw).
Assuming an average ex-vessel price of $4.51 per pound dw and 100
percent quota utilization, total possible gross revenue across the
domestic fishery could be $35.4 million, versus actual gross revenues
of $20.2 million (2011), or a difference of $15.2 million in unrealized
gross revenue due to the United States not fully attaining its adjusted
North Atlantic swordfish quota. 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. Therefore, the new Swordfish General
Commercial permit with low retention limits and in-season adjustment
authority to modify limits as needed is warranted.
Comment 27: When NMFS is considering the impact of this new permit
on the swordfish quota, the
[[Page 52021]]
Agency should reference the baseline quota.
Response: The baseline quota is the amount of swordfish that is
allocated to the United States by ICCAT without adjusting for quota
transfers to other countries (if applicable) or previous year under- or
over-harvest. The adjusted quota is the baseline quota as adjusted by
transfers and previous year over- or under-harvest. If under-harvest of
the previous year's adjusted quota occurs, the United States may carry-
forward its total under-harvest or 25% of the baseline quota, whichever
is less. Both the baseline and adjusted quotas are important when
considering the potential effects of swordfish landings under the new
Swordfish General Commercial permit and commercial retention by HMS
Charter/Headboat permitted vessels when not on a for-hire trip. Both
were considered in developing the Draft and Final EA for Amendment 8.
The adjusted quota is important because this number is what U.S.
fishermen are limited to, on an annual basis, and what the United
States must consider for long-term compliance with recommendations from
ICCAT and consistency with ATCA. If the U.S. baseline or adjusted quota
is repeatedly under-harvested, other countries wanting increased access
to the North Atlantic swordfish stock may look to the United States as
a source of quota that could be temporarily or permanently transferred.
If the adjusted quota is exceeded in one year, the overage must be
deducted from the following year's baseline quota.
In 2011, U.S. landings reported to ICCAT were 2,171 mt (dw). NMFS
anticipates additional landings from the new permit of 265 mt (dw),
which in 2011 would have produced 2,436 mt (dw) total landings plus
discards. Therefore in 2011, under the new Swordfish General Commercial
permit and modified HMS Charter/Headboat permit, U.S. landings (without
discards) would have been 501.6 mt (dw) below the baseline quota of
2,937.6 mt (dw), and 1,970.4 mt (dw) below the adjusted quota of
4,406.4 mt (dw). In the future, potential additional landings under
Amendment 8 could result in a directed swordfish semi-annual seasons
closure. However, NMFS has the authority and ability to monitor
landings and adjust retention limits in-season to slow or close the
harvest of swordfish by Swordfish General Commercial and HMS Charter/
Headboat permitted vessels, and thereby reduce the need to close the
directed swordfish season early.
Comment 28: Green stick and bandit gear should not be authorized
because of their potential ability to catch bluefin tuna. These gears
are not traditional swordfish fishing gears. Green-stick gear was
developed to catch tunas, particularly bluefin tuna, and it does not
catch swordfish very well.
Response: Greenstick and bandit gear are authorized under the
Swordfish General Commercial permit to be consistent with the Atlantic
Tunas General category permit under which these same gears are
currently authorized for the harvest of bigeye, albacore, yellowfin and
skipjack (BAYS) tunas and bluefin tunas. Under current regulations,
swordfish may not be retained if unauthorized fishing gears are onboard
the vessel. Atlantic Tunas General category permitted vessels that are
fishing for tunas may want to fish for tunas with greenstick or bandit
gear and may also have a Swordfish General Commercial permit and want
to fish for swordfish on the same trip. NMFS does not anticipate that
greenstick will be frequently used to harvest swordfish. However, by
allowing the harvest of swordfish with greenstick, NMFS is facilitating
the targeting of tunas and swordfish on the same trip. Under current
regulations, bandit gear is authorized to harvest swordfish under
Swordfish Handgear, Swordfish Directed, or Swordfish Incidental
permits.
Comment 29: NMFS must consider bluefin tuna catches by these
handgears in the Gulf of Mexico bluefin tuna spawning area. Estimated
discards must be deducted from the Atlantic Tunas General category
bluefin tuna quota. This reinforces the need for mandatory logbooks and
some level of observer coverage to provide statistically valid bluefin
tuna estimates in the Gulf of Mexico and the Atlantic Ocean. Bluefin
tuna catches are not allowed because directed bluefin tuna fishing in
the Gulf of Mexico is not allowed, but there will be catches.
Response: Greenstick and bandit gear are currently authorized for
the harvest of BAYS and bluefin tunas under the Atlantic Tunas General
category and HMS Charter/Headboat open access permits and the Atlantic
Tunas Longline limited access permits. The authorization of these gears
under these permits is not affected by Amendment 8. In the Gulf of
Mexico, it is illegal to target bluefin tuna. Available greenstick and
bandit gear catch and bycatch data indicate that fish released from
these gears, including bluefin tuna, have a high likelihood of survival
because the gears are tended and fish may be retrieved relatively
quickly and released. Bluefin tuna landings must be accounted for under
the appropriate bluefin tuna sub-quota and dead discards must be
accounted for against the overall U.S. quota. Atlantic Tunas General
category and HMS Charter/Headboat permitted vessels must report on
logbooks if selected for reporting. At this time, NMFS does not select
these vessels for reporting in order to obtain bluefin tuna dead
discard data because these authorized fishing gears have a low bluefin
tuna mortality rate.
Comment 30: The preferred alternatives in Amendment 8 will make it
easier for recreationally-caught swordfish to be illegally sold by
increasing the number of commercial permit holders through which fish
could be transferred and sold, especially in south Florida. NMFS will
have no way to regulate the landings of all these swordfish in south
Florida.
Response: The establishment of an open-access commercial swordfish
permit that is easy to apply for and obtain is expected to reduce the
incentive for recreational anglers to illegally sell or transfer
swordfish to commercial fishermen for later sale. Recreational HMS
fishermen in Federal waters must possess an HMS Angling permit, may not
sell their HMS, and must report all swordfish landings either online or
by phone within 24-hours of landing. In addition, commercially-caught
swordfish may only be sold to a federally permitted swordfish dealer.
In response to public comment and for other reasons explained above, at
this time, NMFS is implementing a zero-fish retention limit in the
Florida Swordfish Management Area for Swordfish General Commercial
permit holders and prohibiting the sale of fish by vessels with HMS
Charter/Headboat permits in this area, even when they are not on a for
hire trip. In south Florida, this zero-fish retention limit will not
provide additional incentive for recreational fishermen to illegally
sell or transfer swordfish to commercial fishermen for later sale. The
retention limit in south Florida and other regions may be adjusted in-
season, based upon the attainment of pre-established criteria contained
in the final rule implementing Amendment 8.
Comment 31: NMFS received comments opposed to the proposed
regulation, which would allow a person to obtain an Angling category
permit, and then relinquish that permit to obtain the Swordfish General
Commercial permit during the 2013 fishing year. If a person
relinquishes their Angling category permit to obtain the new commercial
permit, the commenter stated that they should be prohibited from
obtaining another
[[Page 52022]]
Atlantic Tunas permit during the same fishing year.
Response: NMFS agrees. A person may not change bluefin tuna quota
categories within the same fishing year under current regulations.
While this final rule will be effective prior to the issuance of 2014
Atlantic open access HMS and tunas permits, NMFS will not issue
Swordfish General Commercial permits prior to the issuance of 2014
permits.
Comment 32: NMFS received contrasting comments regarding the
effective date of the final rule implementing Amendment 8 to the 2006
Consolidated HMS FMP. Some commenters requested implementation as
quickly as possible so they could benefit from increased commercial
fishing opportunities for swordfish. Other commenters requested for
NMFS to wait until ICCAT stock assessment results and quota
recommendations are publicly available in the fall of 2013 before
making any significant changes to current swordfish management
measures.
Response: The effective date of this final rule is 30 days after
the date of its publication in the Federal Register; however, the new
Swordfish General Commercial Permit and the allowance for HMS Charter/
Headboat permitted vessels to sell swordfish on non-for hire trips will
first become effective upon issuance of the 2014 fishing permit. NMFS
is implementing this rule as quickly as possible in order to provide
additional opportunities to more fully utilize the U.S. swordfish
quota, while considering available information about North Atlantic
swordfish stock status. Regardless of the U.S. quota allocation issued
by ICCAT, NMFS has the ability to monitor swordfish landings in real-
time and will also have the ability under Amendment 8 to adjust
regional swordfish retention limits according to the in-season
adjustment authority criteria established in this final rule.
Comment 33: An open-access commercial swordfish permit will enable
many people who have not been able to qualify, based on fishing income,
for a Restricted Species Endorsement on the Florida Saltwater Products
License to more easily qualify. Therefore, the proposed commercial
swordfish permit will also create more fishing pressure on other
species, including Spanish mackerel, pompano, and king mackerel.
Response: The Restricted Species Endorsement is a Florida state
requirement that may be modified by the State of Florida based on their
determination of need. If the State of Florida maintains the status quo
regarding the Florida Restricted Species list, which does not currently
include swordfish, then some fishermen that obtain the new Swordfish
General Commercial permit could potentially land and sell swordfish
which could allow them to qualify more easily for entry into restricted
entry commercial fisheries in Florida. If the State of Florida adds
swordfish to the Restricted Species list, then it would not become any
easier for fishermen to qualify for entry into restricted commercial
fisheries in Florida.
Comment 34: NMFS should implement a swordfish tagging system to
promote more swordfish quota usage. Commenters stated that some
swordfish are being unreported and that the United States must ensure
that all swordfish that are being caught are accounted for.
Response: In the Draft EA for Amendment 8, NMFS thoroughly
considered an alternative that would implement a swordfish tagging
program to provide a higher level of reporting and to facilitate the
enforcement of swordfish regulations. Four sub-alternatives were
considered, including tagging: (1) Only swordfish landed by vessels
issued the new or modified permit(s); (2) all swordfish landed by any
gear other than PLL (i.e., rod and reel, handline, harpoon, bandit
gear, green-stick, trawl gear, and buoy gear; (3) all commercially
landed swordfish; and (4) all commercially-landed swordfish within, or
from, specified region(s). Additionally, NMFS considered whether to
provide tags to dealers and require that vessel operators tag swordfish
prior to offloading, or whether to provide tags to swordfish vessel
permit holders and require that swordfish be tagged immediately upon
being brought onboard a vessel. NMFS extensively investigated different
types of tags, program administration and costs, tag manufacturers,
reporting requirements, and enforcement considerations.
After consulting with the HMS Advisory Panel and other interested
constituents, NMFS decided not to further analyze the alternative to
implement a swordfish tagging program due to concerns about the
effectiveness of a tagging program to reliably identify swordfish that
are bound for commerce. Unless all commercial swordfish (both domestic
and imported) are tagged, it would remain difficult to differentiate
between legitimate commercial landings that needed to be tagged,
commercial landings that did not need to be tagged, imported swordfish,
and recreational landings illegally entering commerce. Furthermore,
establishing an open-access commercial swordfish permit is expected to
significantly reduce the incentive for recreational anglers to
illegally sell or transfer swordfish to commercial fishermen for later
sale, thereby reducing the need for a tagging program.
Changes From the Proposed Rule (78 FR 12273, February 22, 2013)
In this final rule and in response to public comment, NMFS has
modified the definition of the ``Florida Swordfish Management Area'' at
Sec. 635.2 by removing that portion of the area north of
28[deg]17'10'' N. lat. The new northern boundary line now intersects
the U.S. mainland near Rockledge, FL, and the coastline between Cape
Canaveral, FL, and Melbourne, FL, near Cocoa Beach, FL. The modified
area is smaller in geographic size than the proposed area. The area off
the southeastern coast of Florida, particularly the Florida Straits,
contains oceanographic features that make the area biologically unique.
It provides important juvenile swordfish habitat, and is essentially a
narrow migratory corridor containing high concentrations of swordfish
located in close proximity to high concentrations of people who may
fish for them. The modified Florida Swordfish Management Area more
closely encompasses the Florida Straits and the oceanographic features
that make this area biologically unique. Public comment indicated a
concern about increased catches of juvenile swordfish, the potential
for larger numbers of fishermen in the area, and the potential for
crowding of fishermen, which could lead to potential fishing gear and
user conflicts. Modifying the area to more closely correspond to the
actual oceanographic features that make the area unique will improve
future conservation and management of swordfish, while minimizing
impacts on fishermen operating both in the relatively narrow area of
the Florida Straits and fishermen operating north of this area where
swordfish are less concentrated. This modification is within the range
of alternatives considered for the Florida Swordfish Management Area in
Amendment 8. To account for the reduction in size of the Florida
Swordfish Management Area, the Northwest Atlantic region has been
increased in size by extending its southern boundary to 28[deg]17'10''
N. lat.
Also in response to public comment, NMFS has modified the initial
default retention limit of the Florida Swordfish Management Area. In
Sec. 635.24(b)(4)(iii), the initial default swordfish retention limit
for the modified Florida Swordfish Management Area has been changed
from one swordfish per vessel per trip
[[Page 52023]]
to zero swordfish per vessel per trip. An initial default retention
limit of zero swordfish per vessel per trip in the modified Florida
Swordfish Management Area better corresponds with NMFS' intent to take
a precautionary approach during the initial establishment of a new open
access commercial swordfish permit in an area that is biologically
unique and within the proximity of a large number of fishermen, while
still providing increased opportunities for commercial swordfish
handgear fisheries in other regions.
Paragraphs Sec. 635.4(f)(1) and (f)(2) have been changed to
indicate that the provision allowing HMS Charter/Headboat permitted
vessels to commercially fish for swordfish under the new regulations
will become effective on January 1, 2014. Similarly, in Sec.
635.4(f)(5), a sentence has been removed that described how the new
permit would have been issued during the 2013 fishing year. The new
permit will be made available for the 2014 fishing year, so that
sentence is no longer needed.
Paragraph Sec. 635.4(m)(2) has been reworded to improve clarity,
but no substantive change to this paragraph has been made.
A minor change has been made to Sec. 635.24(b)(4)(i) to improve
clarity and to reflect the changes made to the definition of the
Florida Swordfish Management Area.
A correction has been made at Sec. 635.34(a) to indicate the
proper cross-reference to Sec. 635.24 instead of Sec. 635.23. There
is no substantive change as a result of this correction.
Lastly, a change has been made at Sec. 635.71(e)(18) to improve
clarity by incorporating a cross-reference to Sec. 635.21(e)(4)(v).
Classification
The NMFS Assistant Administrator (AA) has determined that this
final rule is consistent with the 2006 Consolidated Atlantic HMS FMP
and its amendments, other provisions of the Magnuson-Stevens Act, ATCA,
and other applicable law.
NMFS prepared an environmental assessment for this final rule that
discusses the impact on the environment that would result from this
rule. In this final action, we 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 final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Agency has consulted, to the extent practicable, with
appropriate state and local officials to address the principles,
criteria, and requirements of Executive Order 13132.
A final regulatory flexibility analysis (FRFA) was prepared for
this rule. The FRFA incorporates the Initial Regulatory Flexibility
Analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA, our responses to those
comments, and a summary of the analyses completed to support the
action. The full FRFA and analysis of economic and ecological impacts
are available from NMFS (see ADDRESSES). A summary of the FRFA follows.
The purpose of this final rulemaking, consistent with the Magnuson-
Stevens Act, and the 2006 Consolidated HMS FMP and its amendments, is
to enact HMS management measures that 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 604(a)(2) of the RFA requires a summary of the significant
issues raised by the public comments in response to the IRFA, a summary
of the assessment of the Agency of such issues, and a statement of any
changes made in the rule as a result of such comments. NMFS received
many comments on the proposed rule and IRFA. A summary of these
comments and the Agency's responses, including changes as a result of
public comment, are included above. In particular, comments 1, 5, 6,
and 7 address the rule's economic impacts. For the reasons discussed in
the response to comments 5 and 6, NMFS has reduced the size of the
Florida Swordfish Management Area in this final rule, increased the
size of the Northwest Atlantic region, implemented a zero swordfish per
vessel per trip initial default retention limit in the smaller modified
Florida Swordfish Management Area, and implemented a three swordfish
per vessel per trip initial default retention limit in the area north
of Cocoa Beach, FL, to Jekyll Island, GA, that was originally proposed
to be subject to a one swordfish per vessel per trip limit. Otherwise,
there are no substantive changes from the proposed rule as a result of
these economic comments.
Section 604(a)(3) of the RFA requires a description and estimate of
the number of small entities to which the final rule would apply. The
Small Business Administration (SBA) has established size criteria for
all major industry sectors in the United States, including fish
harvesters. Previously, a business involved in fish harvesting was
classified as a small business if it is independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and has combined annual receipts not in excess of $4.0
million (NAICS code 114111, finfish fishing) for all its affiliated
operations worldwide. In addition, SBA has defined a small charter/
party boat entity (NAICS code 713990, recreational industries) as one
with average annual receipts of less than $7.0 million. On June 20,
2013, SBA issued a final rule revising the small business size
standards for several industries effective July 22, 2013. 78 FR 37398
(June 20, 2013). The rule increased the size standard for Finfish
Fishing from $4.0 to 19.0 million, Shellfish Fishing from $4.0 to 5.0
million, and Other Marine Fishing from $4.0 to 7.0 million. Id. at
37400 (Table 1).
NMFS has reviewed the analyses prepared for this action in light of
the new size standards. Under the former, lower size standards, all
entities subject to this action were considered small entities, thus
they all would continue to be considered small under the new standards.
This final 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. 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.
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 permit being implemented in this final action. This
final action could also indirectly apply to current U.S. North Atlantic
commercial swordfish fishery participants and the related industries of
seafood dealers and processors, fishing gear manufacturers and
distributors, marinas, bait houses, restaurants, and other equipment
suppliers. The current U.S. North
[[Page 52024]]
Atlantic commercial swordfish fishery is comprised of 334 fishing
vessel owners who are issued either a limited access swordfish Handgear
permit, or a limited access directed or incidental swordfish permit.
Section 604(a)(4) of the RFA requires a description of the
projected reporting, record-keeping, and other compliance requirements
of the final rule, including an estimate of the classes of small
entities which would be subject to the requirements of the report or
record.
This action contains new reporting, recordkeeping, or other
compliance requirements. The new Federal open-access Swordfish General
Commercial permit allows NMFS to collect additional data regarding
participants in the swordfish handgear fishery and landings through
Federal dealer reports. The new permit requires an application similar
to other current open-access HMS permits. The information collected on
the application includes 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 final rule
also adopts 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
implemented in this final action (HMS Charter/Headboat, Atlantic tunas
General category, and Atlantic tunas Harpoon category permit) are not
selected for submitting logbooks, although they may be selected in the
future.
Section 604(a)(5) of the RFA requires a description of the steps
NMFS has taken to minimize the significant economic impact on small
entities consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons for
selecting the alternative adopted in the final rule and the reason that
each one of the other significant alternatives to the rule considered
by the Agency which affect small entities was rejected. These impacts
are discussed below and in the final environmental assessment for
Amendment 8 to the 2006 Consolidated HMS FMP. Additionally, the RFA (5
U.S.C. 603(c)(1)-(4)) lists four general categories of ``significant''
alternatives that could assist an agency in the development of
significant alternatives. These categories of alternatives are: (1)
Establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) use of performance rather than design standards; and (4)
exemptions from coverage of the rule for small entities.
In order to meet the objectives of this rule, consistent with the
Magnuson-Stevens Act and ESA, 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. We do not know of any performance or design standards
that would satisfy the aforementioned objectives of this rulemaking
while also 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. The
action will improve information collection by allowing NMFS to collect
important fishery dependent data, if necessary, that could be used for
quota monitoring and stock assessments. As described below, NMFS
analyzed several different alternatives for this final rulemaking and
provides rationale for selecting the alternatives adopted in the final
rule and the reason that each one of the other significant alternatives
to the rule considered by the Agency which affect small entities was
rejected.
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 FRFA and all its analyses can be found in
the final environmental assessment for Amendment 8. In total, NMFS
analyzed 16 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 nine alternatives that would allow NMFS to implement swordfish
retention limits applicable to the new permit in a range from zero-to-
six fish. Eight of these alternatives would allow NMFS to modify daily
trip limits using in-season adjustment procedures. 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.
Alternative 1.2, a preferred alternative, would establish a new
open-access commercial swordfish permit and modify existing open access
HMS
[[Page 52025]]
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 are expected to 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 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 vessels using handgears
(rod and reel, handline, harpoon, bandit gear, and green-stick) to
retain swordfish commercially, 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 l.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 1.2.1 is not preferred because it would not
provide the ability to differentiate between the numbers of commercial
fishermen issued an Atlantic Tunas General category permit and those
issued an open-access commercial swordfish permit. This distinction
helps to analyze the socio-economic impacts of potential management
measures for both tunas and swordfish.
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 fish for tunas under Atlantic tunas Harpoon
category regulations. Sub-Alternative 1.2.2 is not preferred because it
would not provide the ability to differentiate between the numbers of
commercial fishermen issued an Atlantic Tunas Harpoon category permit
and those issued an open-access commercial swordfish permit.
Sub-alternative 1.2.3, a preferred alternative, would allow HMS
Charter/Headboat permit holders to fish under open access commercial
swordfish regulations, using only rod and reel and handlines, when 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 would also streamline permit issuance because CHB vessels
would not need to obtain another permit. Sub-Alternative 1.2.3 is
preferred because it achieves the goal of providing additional
opportunities to commercially harvest the U.S. swordfish quota using
handgears that are low in bycatch. A similar regulatory provision
exists which allows HMS Charter/Headboat permit holders to sell
Atlantic tunas under certain conditions because of the quasi-commercial
nature of the HMS Charter/Headboat 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 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 only 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
[[Page 52026]]
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, establishing 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 1.3 is not preferred because a new commercial
swordfish limited-access permit is not needed at this time. Under the
preferred alternatives, fishing effort in the open-access commercial
swordfish fishery will be managed using low regional retention limits
that can be adjusted using in-season authority to ensure that landings
remain within the U.S. quota.
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 2.1 is
not preferred because it does not provide the flexibility to manage the
new swordfish open access permit on a regional basis or to adjust
regional retention limits using in-season authority.
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 2.2 is not preferred
because it does not provide the flexibility to manage the new swordfish
open access permit on a regional basis.
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 considered 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. 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. 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 2.3.1
is not preferred because the small-scale handgear fishery is somewhat
similar across the entire Northwest Atlantic area and Gulf of Mexico,
so establishing several smaller areas is not needed at this time.
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 (the 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). In the draft EA and proposed rule, NMFS considered 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 fell within the range discussed under Alternative 2.3
above, and could be
[[Page 52027]]
modified in the future using in-season adjustment procedures. In this
action, NMFS establishes an initial default retention limit of zero
swordfish per vessel per trip for the Florida Swordfish Management Area
due to concerns about the rapid growth of a commercial fishery in an
important swordfish habitat area that is in close proximity to many
fishermen. Under a regional retention limit set at zero for the Florida
Swordfish Management Area, no change in socio-economic impacts is
anticipated. In other regions, vessels making 10 trips per year and
retaining the maximum allowable limit on each trip would derive annual
gross revenue from swordfish ranging 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 is preferred because it establishes
larger regions which can be consistently and effectively managed, yet
it still provides for the ability to manage the unique swordfish
habitat area off southeastern Florida
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
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 NMFS used to estimate 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, as is the case currently, then
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 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). Under a
regional retention limit set at zero for the Florida Swordfish
Management Area, no change in socio-economic impacts is anticipated.
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. Sub-Alternative 2.3.2.1 was
preferred in the draft EA and proposed rule because it corresponded to
the well-known boundaries of the existing East Florida Coast pelagic
longline closed area, and also provided an enforceable buffer by
including areas where there is not as much swordfishing activity. It is
no longer preferred because a new hybrid alternative has been developed
that better corresponds to the unique biological and oceanographic
features that make the area a migratory corridor containing a high
concentration of swordfish and providing important juvenile swordfish
habitat. The hybrid area also closely corresponds to locations
containing large numbers of fishermen, while still providing an
enforceable buffer area to the north and south of the prime
swordfishing areas off St. Lucie, Martin, Palm Beach, Broward, Dade,
and Monroe counties in Florida.
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. Under a regional retention limit set at zero for the Florida
Swordfish Management Area, no change in socio-economic impacts is
anticipated. 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 2.3.2.2 is not preferred because a new hybrid
alternative has been developed that better corresponds to the unique
biological and oceanographic features that make the area a migratory
corridor containing a high concentration of swordfish and providing
important juvenile swordfish habitat.
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. Under a regional retention limit set at
zero for the Florida Swordfish Management Area, no change in socio-
economic impacts is anticipated. 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. Sub-Alternative 2.3.2.3
is not preferred because this management area would provide a smaller,
and less enforceable, buffer area around the prime swordfishing areas.
A new hybrid alternative has been developed that better corresponds to
the unique biological and oceanographic features that make the area a
migratory corridor containing a high concentration of swordfish and
providing important juvenile swordfish habitat.
Sub-Alternative 2.3.2.4, a preferred alternative, would establish a
Florida Swordfish Management Area extending shoreward from near
Rockledge, FL, and Cocoa Beach, FL, to the outer boundary of the EEZ
through the northwestern boundary of Monroe County, FL, in the Gulf of
Mexico. This area is geographically smaller than Sub-Alternatives
2.3.2.1 and 2.3.2.2, but larger than Sub-Alternative 2.3.2.3. This sub-
alternative, in combination with a zero-fish retention limit, balances
the need to prevent the rapid growth of a commercial fishery in a
biologically unique area with the objective of providing additional
opportunities to harvest swordfish. The preferred alternative in the
draft EA (Sub-Alternative 2.3.2.1) would have implemented a one-fish
retention limit in a larger area. This alternative would implement a
zero-fish retention limit in a smaller area, and a three-fish retention
limit in the area north of Cocoa Beach, FL, that was previously
proposed to be subject to a one-fish retention limit. Thus, in the
smaller, modified Florida Swordfish Management Area (Sub-Alternative
2.3.2.4) with an initial default retention limit of zero, no change in
socio-economic impacts is anticipated. In the larger Northwest Atlantic
region, annual gross revenue derived from swordfish would be
approximately $12,988.80 under a three-fish limit for a vessel making
ten trips per year and retaining the maximum allowable limit on each
trip. Sub-Alternative 2.3.2.4 is preferred because it more closely
corresponds to the unique biological and oceanographic features that
make the area a migratory corridor containing a high concentration of
swordfish and providing important juvenile swordfish habitat. This area
also more closely corresponds to locations containing large numbers of
[[Page 52028]]
fishermen with comparatively easy access to the swordfish resource,
while still providing an enforceable buffer area to the north and south
of the prime swordfishing areas off St. Lucie, Martin, Palm Beach,
Broward, Dade, and Monroe counties in Florida.
This final rule does not conflict, duplicate, or overlap with other
relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and
managers in these fisheries must comply with a number of international
agreements, domestic laws, and other FMPs. These include, but are not
limited to, the Magnuson-Stevens Act, the ACTA, the High Seas Fishing
Compliance Act, the Marine Mammal Protection Act, the Endangered
Species Act, the National Environmental Policy Act, the Paperwork
Reduction Act, and the Coastal Zone Management Act. We do not believe
that the new regulations duplicate, overlap, or conflict with any
relevant regulations, Federal or otherwise.
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by OMB under control number 0648-0327. 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. Send comments on these burden estimated or any
other aspects of this data collection, including suggestions for
reducing the burden or any other aspects of the collection of
information to NMFS (see ADDRESSES) and by email to [email protected], or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. Copies of
this final rule and the compliance guide are available upon request
from NMFS (see ADDRESSES). Copies of the compliance guide will also be
available from the Highly Migratory Species Management Division Web
site at http://www.nmfs.noaa.gov/sfa/hms/.
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: August 13, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the
functions and duties of the Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 600 and 635
are amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.725, in the table in paragraph (v), under the heading
``IX. Secretary of Commerce,'' entry 1, revise A to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(v) * * *
------------------------------------------------------------------------
Fishery Authorized gear types
------------------------------------------------------------------------
* * * * * * *
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:
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
shoreward of the outer boundary of the U.S. EEZ from a point where
latitude 28[deg]17'10'' N. lat. intersects the U.S. mainland near
Rockledge, Florida and proceeding due east across the barrier island
near Cocoa Beach, Florida to connect by straight lines the following
coordinates in the order stated: 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 25[deg]48'' N. lat., 82[deg]0' W. long., then proceeding due
east to the shore near Chokoloskee, Florida).
* * * * *
0
5. In Sec. 635.4:
0
a. Revise paragraphs (b)(1), (c)(1), and (c)(2);
0
b. Add paragraph (c)(4);
[[Page 52029]]
0
c. Revise paragraphs (f) introductory text, (f)(1), (f)(2), and (f)(4);
0
d. Add paragraph (f)(5); and
0
e. Revise paragraphs (h)(1) introductory text, (j)(3), and (m)(2).
The revisions and additions 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. The Swordfish General Commercial
permit and the HMS Charter/Headboat permit provisions in paragraphs
(f)(1) and (2) of this section will first become effective beginning
with issuance of the 2014 fishing permit.
(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 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 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) 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.
* * * * *
(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). 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.
* * * * *
(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 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. A vessel owner 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
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 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) 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
[[Page 52030]]
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 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
6. In Sec. 635.21, revise paragraphs (e)(2)(i) and (ii) and (e)(4)(i)
and (iv), add paragraph (e)(4)(v), and revise paragraph (g) 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) introductory text and (f)(1) and (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 based upon the inseason regional
retention limit adjustment criteria identified in paragraph (b)(4)(iv)
below.
(i) Regions. 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]17'10'' N. latitude); the Gulf of Mexico
region (any water located in the EEZ in the entire Gulf of Mexico west
of 82[deg] W. longitude); 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
[[Page 52031]]
set forth under paragraph (b)(4)(i) of this section are:
(A) Zero 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 (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
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 (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 (D) are added to read
as follows:
Sec. 635.28 Fishery 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. 635.24; 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 (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 pelagic longline, green-stick
gear, or handgear, except as specified at Sec. 635.21(e)(4)(i).
* * * * *
(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, as specified in Sec. 635.21(e)(4)(v).
[FR Doc. 2013-19975 Filed 8-20-13; 8:45 am]
BILLING CODE 3510-22-P