Atlantic Highly Migratory Species; Modification of the Retention of Incidentally-Caught Highly Migratory Species in Atlantic Trawl Fisheries, 49368-49380 [2011-20330]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Rules and Regulations]
[Pages 49368-49380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20330]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110112022-1262-02]
RIN 0648-BA45


Atlantic Highly Migratory Species; Modification of the Retention 
of Incidentally-Caught Highly Migratory Species in Atlantic Trawl 
Fisheries

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

ACTION: Final rule.

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

SUMMARY: This final rule modifies the permitting requirements and 
retention limits for Atlantic highly migratory species (HMS) that are 
incidentally-caught in Atlantic trawl fisheries. This action will 
reduce regulatory dead discards of incidentally-caught Atlantic 
swordfish in the Illex squid trawl fishery by establishing a new 
Incidental HMS Squid Trawl permit for all valid Illex squid moratorium 
permit holders. The Incidental HMS Squid Trawl permit will allow up to 
15 swordfish per trip to be retained. The final rule also establishes a 
retention limit for smoothhound sharks in all Atlantic trawl fisheries. 
These actions are necessary to achieve domestic management objectives 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), and to implement the 2006 Consolidated HMS 
Fishery Management Plan (Consolidated HMS FMP), including objectives in 
the FMP to monitor and control all components of fishing mortality, 
both directed and incidental, so as to ensure the long-term 
sustainability of HMS stocks, and to provide the data necessary for 
assessing HMS fish stocks and managing HMS, including addressing 
inadequacies in current data collection and the ongoing collection of 
economic and bycatch data in Atlantic HMS fisheries.

DATES: Effective August 10, 2011, except for the amendments to Sec.  
635.21(e)(3)(i), Sec.  635.24(a)(7), and Sec.  635.71(d)(18), which are 
delayed indefinitely. NMFS will publish a document in the Federal 
Register announcing the effective dates for this amendments.

ADDRESSES: Highly Migratory Species Management Division, 1315 East-West 
Highway, Silver Spring, MD 20910. Copies of the supporting documents--
including the Environmental Assessment (EA), Regulatory Impact Review 
(RIR), Final Regulatory Flexibility Analysis (FRFA), small entity 
compliance guide, and the 2006 Consolidated Atlantic HMSFMP--are 
available from the HMS Web site at https://www.nmfs.noaa.gov/sfa/hms/. 
Written comments regarding the burden-hour estimates or other aspects 
of the collection-of-information requirements contained in this final 
rule may be submitted to the HMS Management Division (see above) and by 
e-mail to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Rick Pearson at (727) 824-5399, Steve 
Durkee at (202) 670-6637, or Delisse Ortiz at (301) 427-8503.

SUPPLEMENTARY INFORMATION: North Atlantic swordfish and smoothhound 
shark species are managed under the

[[Page 49369]]

authority of the Magnuson-Stevens Act. Swordfish are also managed under 
the authority of the Atlantic Tunas Convention Act (ATCA), which 
authorizes the Secretary of Commerce (Secretary) to promulgate 
regulations as may be necessary and appropriate to implement 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT). The authority to issue regulations under the 
Magnuson-Stevens Act and ATCA has been delegated from the Secretary to 
the Assistant Administrator for Fisheries, NOAA (AA). On May 28, 1999, 
NMFS published in the Federal Register (64 FR 29090) final regulations, 
effective July 1, 1999, implementing the FMP for Atlantic Tunas, 
Swordfish, and Sharks. On October 2, 2006, NMFS published in the 
Federal Register (71 FR 58058) final regulations, effective November 1, 
2006, implementing the 2006 Consolidated HMS FMP, which details the 
management measures for Atlantic HMS fisheries. The implementing 
regulations for the Consolidated HMS FMP and its amendments for 
Atlantic HMS are at 50 CFR part 635.

Background

    On March 18, 2011, NMFS published a proposed rule (76 FR 14884) in 
the Federal Register to modify the permitting requirements and 
retention limits for incidentally-caught HMS in Atlantic trawl 
fisheries. The proposed rule addressed two separate, but related, 
issues: (1) The retention of incidentally-caught swordfish in the Illex 
squid trawl fishery; and, (2) the retention of incidentally-caught 
species in the smoothhound shark complex (including smooth dogfish and 
Florida smoothhound (genus Mustelus)) in all Atlantic trawl fisheries. 
This rule finalizes the proposed management measures in the March 18, 
2011, proposed rule. These final actions are necessary to achieve 
domestic management objectives under the Magnuson-Stevens Act and ATCA, 
and to implement the Consolidated HMS FMP and its amendments. This 
includes objectives in the FMP to monitor and control all components of 
fishing mortality, both directed and incidental, so as to ensure the 
long-term sustainability of HMS stocks, and to provide the data 
necessary for assessing HMS fish stocks and managing HMS, including 
addressing inadequacies in current data collection and the ongoing 
collection of economic and bycatch data in Atlantic HMS fisheries. NMFS 
will be issuing the new Incidental HMS Squid Trawl permit out of its 
Northeast Regional Permit Office pursuant to this final rule and other 
applicable provisions of 50 CFR part 635. Application procedures will 
be similar to those used for the Illex squid moratorium permit.
    NMFS considered four alternatives to address the retention of 
incidentally-caught swordfish in squid trawl fisheries (Issue A), and 
three alternatives to address the retention of incidentally-caught 
smoothhound sharks in trawl fisheries (Issue B).
    Alternative A1, the status quo, would maintain existing HMS permit 
requirements and incidental swordfish retention limits in squid trawl 
fisheries. The second alternative (A2), the selected final action, 
would implement a new permit (referred to as the Incidental HMS Squid 
Trawl permit) for Illex squid moratorium permit holders to retain up to 
15 swordfish per trip, the current squid trawl limit. The third 
alternative (A3) would exempt Illex squid moratorium permit holders 
from current HMS permit requirements (i.e., the ``HMS permit triple-
pack'') and allow them to retain up to 15 swordfish when fishing for 
squid. Finally, the fourth alternative (A4) would establish either a 
new Incidental HMS Squid Trawl permit available to all vessel owners 
currently issued a Loligo squid moratorium permit, or establish an 
exemption from the need for Loligo squid trawl vessels to be issued the 
``HMS permit triple-pack'' to retain swordfish.
    Currently, there are no management measures in effect for 
smoothhound sharks, thus trawl vessels may retain unlimited amounts of 
this species. All smoothhound shark management measures, including a 
commercial permit requirement and a commercial quota, will be 
implemented in the future when smoothhound sharks are fully 
incorporated into the HMS management unit, and upon completion of 
regulations implementing the Shark Conservation Act of 2010. Consistent 
with the stated intent of Amendment 3 to minimize changes to the 
fishery, trawl gear is not authorized as an HMS gear, but NMFS 
indicated that vessels with trawl gear could harvest smoothhound shark 
species at incidental levels, similar to swordfish. Thus, without the 
action being considered in this rulemaking, the retention of trawl-
caught smoothhound sharks would be prohibited in the future because the 
gear is not authorized. Accordingly, all of the alternatives for Issue 
B are analyzed relative to the time when smoothhound shark measures are 
in effect. For Issue B, under the no action alternative (B1), when 
smoothhound sharks are fully incorporated into the HMS management unit, 
their retention would be prohibited by trawl vessels. Alternative B2, 
the final action, would allow for the retention of smoothhound sharks 
caught incidentally in trawl gear in an amount not to exceed 25 percent 
of the total catch, by weight, when smoothhound sharks are fully 
incorporated into the HMS management unit. Finally, Alternative B3 
would allow for the retention of smoothhound sharks caught incidentally 
in trawl gear, in an amount not to exceed 50 percent of the total 
catch, by weight.
    The proposed rule contained additional details regarding the 
impacts of the alternatives considered and a brief summary of the 
recent management history. Those details are not repeated here.

Response to Comments

    During the proposed rule stage, NMFS received seven written 
comments from non-governmental organizations, fishermen, dealers, and 
other interested parties. NMFS also heard numerous comments from 
constituents in attendance at the five public hearings. A summary of 
the major comments received on the proposed rule during the public 
comment period is shown below with NMFS' responses. All written 
comments submitted during the comment period can be found at https://www.regulations.gov/by searching for RIN 0648-BA45.

Issue A--Squid Trawl/Swordfish Comments

    Comment 1: NMFS should implement preferred Alternative A2 because 
it will improve data collection. Regulatory dead discards of swordfish 
contribute to scientific uncertainty. Swordfish are incidentally-caught 
in the Illex squid trawl fishery, so those fish should be counted. NMFS 
will gain ecological benefits associated with obtaining more reliable 
data.
    Response: NMFS agrees. NMFS is implementing preferred Alternative 
A2 to improve data collection. Swordfish discard estimates are 
currently required to be reported in the Northeast Fishing Vessel Trip 
Report (VTR). Allowing for the limited retention of swordfish by all 
vessels issued Illex squid moratorium permits will require that those 
fish be sold to a permitted swordfish dealer who must submit bi-weekly 
dealer reports. Bi-weekly swordfish dealer reports will provide more 
precise landing weights than those currently obtained from VTR discard 
estimates. Also, establishing a new Incidental HMS Squid Trawl Permit 
will enable NMFS to place observers on those

[[Page 49370]]

vessels to obtain additional catch and effort data specific to HMS in 
the future, if necessary.
    Comment 2: NMFS should implement preferred Alternative A2 because 
it will provide economic benefits by reducing dead discards of 
swordfish and converting them into landings. It is painful for so many 
Illex squid trawl vessels to discard incidentally-caught dead swordfish 
just because they do not have the correct HMS permits. The swordfish 
stock is fully rebuilt, so there is potential for more landings. The 
positive economic impacts to an individual vessel would be helpful. 
Preferred Alternative A2 would also be a great benefit to New Jersey 
ports, especially Cape May, where many Illex vessels unload.
    Response: NMFS agrees. Alternative A2, the final action, is 
estimated to result in moderate economic benefits ranging from $3,849-
$4,145 annually for individual active Illex squid trawl vessels. These 
estimates are based upon historical observer data that indicates an 
average of 1.2-3.3 swordfish discards per Illex trip. For trips that 
land the maximum of 15 swordfish, the additional ex-vessel revenue 
associated with those landings could be approximately $4,441 per Illex 
trip. However, because Illex fishery encounters with swordfish are 
primarily concentrated in July and August and relatively few vessels 
actively participate in the fishery, NMFS does not anticipate that a 
large number of squid trawl trips will land the maximum allowable 
limit. This final rule will lessen economic waste by allowing swordfish 
that are incidentally-caught while trawling for Illex squid to be 
retained and sold, rather than discarded dead. Fishing ports in Rhode 
Island and New Jersey are expected to be positively impacted by this 
rule because these states historically account for more than 90 percent 
of Illex squid landings.
    Comment 3: NMFS should not implement Alternatives A2-A4 because the 
squid trawl fishery could become a directed swordfish fishery in the 
future due to the value of swordfish. Allowing all Illex squid trawl 
vessels to retain up to 15 swordfish per trip will create an incentive 
for those vessels to target swordfish.
    Response: NMFS disagrees. The current HMS regulations specify that 
a vessel is considered to be in the squid trawl fishery when squid 
constitutes not less than 75 percent of the total fish on board and 
when trawl gear is the only gear on board. This means that a vessel 
would have to catch at least 5,000 lb. of squid to retain approximately 
15 average-sized (112 lb.) swordfish. Given that the Illex quota has 
held steady since 2000 at 24,000 mt for the entire fishery, during 
which landings have been averaging about 11,800 mt annually, individual 
vessel landings of 5,000 lb do not always occur. NMFS intends to 
monitor the fishery to ensure that the 15-fish retention limit is 
appropriate and consistent with the goal of maintaining the incidental 
nature of swordfish catches by squid trawl vessels.
    Comment 4: Due to a variety of economic factors like fuel costs, 
effort in many trawl fisheries has declined. If squid trawl fisheries 
are allowed to retain swordfish, fishing trips could become more 
profitable, which could encourage fishermen, who are not currently 
fishing, to fish. Because of the likelihood of increased trawl fishing 
effort, NMFS has incorrectly determined that ``the action will not be 
reasonably expected to cause substantial damage to the ocean and 
coastal habitats and/or essential fish habitat (EFH)'' and ``that the 
action will not reasonably be expected to adversely affect endangered 
or threatened species, marine mammals, or critical habitat of these 
species.'' Therefore, the draft Finding of No Significant Impact 
(FONSI) is incorrect. There will be a significant impact from this 
action and NMFS should prepare both an Environmental Impact Statement 
(EIS) and a Biological Opinion (BiOp).
    Response: NMFS disagrees. The Illex squid fishery is managed by the 
Mid-Atlantic Fishery Management Council (MAFMC) under the Atlantic 
Mackerel, Squids, and Butterfish Fishery Management Plan (MSB FMP). The 
MAFMC annually recommends an Acceptable Biological Catch (ABC) and a 
Domestic Annual Harvest (DAH) level. NMFS is required to close the 
directed Illex squid fishery when 95 percent of the DAH is achieved. 
Therefore, Illex squid fishing effort is effectively capped at a 
scientifically-determined upper quota limit. Because an EIS has been 
prepared for the MSB FMP, a BiOp has been developed for the fishery, 
and the MSB FMP has been determined to comply with the Magnuson-Stevens 
Act and its National Standards, any level of legal Illex squid fishing 
effort below 95 percent of the DAH has already been analyzed. The Illex 
squid fishery has been landing an average of 59 percent (range: 38-77 
percent) of the ABC since 2005, so it is possible that squid trawl 
fishing effort could increase. However, an increase would not be solely 
because of this final HMS rule. Squid trawl vessels tend to be 
specialized and are designed to capture small pelagic species such as 
squid, mackerel, and butterfish. The primary factors influencing effort 
in this fishery are ex-vessel prices of those species, seasonal 
availability, and the amount of fixed gear in the water column from 
other fisheries. Although landings by value per individual moratorium-
permitted vessel have fluctuated from 2002 to 2006, the vast majority 
of Illex landings (96 percent) during this period came from only 22 
distinct vessels. The additional revenue associated with the sale of 
incidentally-caught swordfish for a period of approximately 2-3 months 
($3,849-$4,145 annually per vessel) is not expected to offset the 
startup costs associated with this fishery or provide sufficient 
incentive for large numbers of currently inactive Illex squid vessels 
to reactivate. If some squid vessels do reactivate or increase their 
fishing effort, the fishery as a whole would continue to be limited by 
the ABC and DAH specified annually under the MSB FMP.
    Comment 5: NMFS should implement Alternative A4, which would 
establish either a new permit or an exemption for Loligo squid 
moratorium permit holders to retain swordfish. NMFS should allow for 
the retention of swordfish by both Illex and Loligo squid moratorium 
permit holders.
    Response: As explained in the Environmental Assessment, swordfish 
discards are much higher in the Illex squid trawl fishery than in the 
Loligo fishery. Based upon Northeast Fisheries Science Center (NEFSC) 
observer data, the average number of swordfish discards per Illex tow 
equals 0.11 (105 total discards/976 total tows = 0.11 discards/tow), 
and the average number of swordfish discards per tow in the Loligo 
fishery equals 0.01 (36 total discards/4,697 total tows = 0.01). In 
other words, swordfish discards are approximately 10 times higher in 
the Illex squid trawl fishery. This is because the Loligo fishery 
primarily operates inshore during summer months whereas the Illex 
fishery operates in the offshore Mid-Atlantic canyons during the summer 
where swordfish are more prevalent. Also, 75 out of 76 Illex squid 
moratorium permit holders have been issued a Loligo squid moratorium 
permit, so some of the swordfish discards in the Loligo fishery could 
be from these vessels. The data clearly indicate that the highest level 
of swordfish discards occur in the Illex squid fishery. Therefore, this 
final rule implements Alternative A2, which establishes a new HMS 
permit for Illex squid moratorium permit holders to retain up to 15 
incidentally-caught swordfish per trip.

[[Page 49371]]

    Comment 6: NMFS should not have any restrictions on the number of 
swordfish allowed to be kept by squid trawl vessels, provided that all 
of the fish are accurately counted. Squid trawl vessels should be 
allowed to keep everything they catch, especially if the United States 
is not catching its ICCAT-recommended swordfish quota. A 15-fish limit 
could be restrictive. There may be instances when that limit is 
exceeded. There is also the potential for ``high-grading'' under a 15-
fish limit, where fishermen discard all but the largest fish. Large 
freezer boats would especially benefit from a higher incidental 
swordfish trip limit. If the 15-fish limit is too restrictive and dead 
discards still occur, there should be a regulatory mechanism to quickly 
increase the limit.
    Response: NMFS disagrees. The incidental swordfish retention limit 
for squid trawl vessels was increased from five to 15 swordfish in 2007 
(72 FR 31688, June 7, 2007). Based upon logbook analysis and public 
comment, it was determined that 15 swordfish was an appropriate limit 
for the vast majority of squid trawl trips. Since the limit was 
increased in 2007, NMFS has not received any comments from active squid 
trawl vessel operators indicating that the current limit is too 
restrictive, and additional analysis prepared for this rulemaking 
indicates an average range of 1.2-3.3 swordfish discards per Illex 
squid trip, with some trips catching more and others less. The purpose 
of this rulemaking is to modify the permitting requirements for squid 
trawl vessels and not to reconsider the current squid trawl incidental 
retention limit. Should the limit need to be revised, either lower or 
higher due to targeted fishing or continued discards, respectively, 
NMFS might reconsider the issue in a future rulemaking.
    Comment 7: NMFS should authorize trawl gear for swordfish.
    Response: Trawl gear is not authorized for the retention of any 
HMS. Because swordfish have historically been captured incidentally 
while trawling for squid, NMFS created a small allowance for some HMS-
permitted squid trawl vessels to retain swordfish. However, many squid 
trawl vessel owners did not qualify for, or obtain, the required HMS 
permits. This final rule creates a new Incidental HMS Squid Trawl 
permit, which will be available to all Illex squid moratorium permit 
holders to retain incidentally-caught swordfish, provided that squid 
constitute not less than 75 percent of the catch on board and trawl is 
the only commercial fishing gear on board. Authorizing trawl gear for 
all HMS, beyond allowing for limited incidental capture, is beyond the 
scope of this rulemaking and would require an Amendment to the HMS FMP 
and significant additional analysis.
    Comment 8: NMFS should clarify whether the permit proposed in 
Alternative A2 will be available to all Illex permitted vessels or only 
to active Illex vessels, and whether there will be any other 
qualification criteria for obtaining the permit.
    Response: As indicated in the response to Comment 7, the new 
Incidental HMS Squid Trawl permit will be available to all vessels 
issued a valid Illex squid moratorium permit, provided that all other 
requisite permit qualification criteria are met (reporting 
requirements, complete application, etc.).
    Comment 9: NMFS should clarify whether squid trawl vessels will 
need to have at least 75 percent Illex squid on board, or just squid, 
to be considered in the squid trawl fishery.
    Response: A vessel is considered to be in the squid trawl fishery 
when it has no commercial fishing gear other than trawls on board and 
when squid constitute not less than 75 percent by weight of the total 
fish on board or offloaded from the vessel. The squid do not have to be 
exclusively Illex squid.
    Comment 10: NMFS should clarify whether the HMS ``permit triple 
pack'' will be required for Loligo squid moratorium permit holders to 
retain swordfish if Alternative A2 is implemented.
    Response: The HMS ``permit triple pack'' will no longer be 
applicable for vessels that are participating in the squid trawl 
fishery upon the effective date of this final rule. After that date, 
the only permit that will allow any squid trawl vessel, Illex or 
Loligo, to retain swordfish will be the Incidental HMS Squid Trawl 
permit, which is available only to vessels issued a valid Illex squid 
moratorium permit.
    Comment 11: NMFS should clarify whether Illex squid moratorium 
permit holders will have to surrender their HMS ``permit triple pack'' 
if a new Incidental HMS Squid Trawl permit is implemented under 
Alternative A2.
    Response: As described in the response to Comment 10, the only 
permit that will allow for the retention of swordfish by squid trawl 
vessels will be the Incidental HMS Squid Trawl permit upon the 
effective date of this final rule. NMFS has determined that 
approximately five squid trawl vessels are currently issued the HMS 
``permit triple-pack.'' These permit holders may either transfer their 
HMS ``permit triple pack'' to another vessel, or let their swordfish 
and shark permits expire and then terminate 1 year after the expiration 
date. Atlantic Tunas Longline permits do not terminate 1 year after the 
expiration date. Vessel owners also have the option of maintaining 
their HMS ``permit triple pack'' through annual renewal. The permits do 
not have to be surrendered.
    Comment 12: NMFS should allow incidental squid permit holders to 
retain swordfish rather than just Illex squid moratorium permit 
holders.
    Response: NMFS disagrees. The vast majority of Illex squid landings 
come from vessels issued an Illex squid moratorium permit (99 percent, 
on average, from 2002-2006). Most swordfish discards occur during Illex 
squid fishing. Thus, Illex squid moratorium permit holders are more 
likely to capture swordfish than incidental squid permit holders, and 
NMFS is restricting qualification for the Incidental HMS Squid Trawl 
permit to Illex moratorium vessels.
    Comment 13: NMFS should clarify whether Illex squid moratorium 
permit holders issued an Incidental HMS squid trawl permit will have to 
report their swordfish separately in the HMS logbook or whether they 
could report their swordfish in the Northeast Vessel Trip Report (VTR) 
logbook.
    Response: Illex squid moratorium permit holders issued an 
Incidental HMS Squid Trawl permit will be required to report their 
swordfish in the Northeast VTR logbook. NMFS could also select 
Incidental HMS Squid Trawl permit holders to report their catch in the 
HMS logbook, but that is not being considered at this time. If NMFS 
decides to require those permit holders to report in the HMS logbook, 
NMFS would notify individuals of that requirement and provide 
instructions on how to comply with the requirement. NMFS reminds 
fishermen that swordfish may only be sold to dealers issued a valid 
Swordfish Dealer permit.
    Comment 14: NMFS should carefully monitor the swordfish fishery if 
Alternative A2 is implemented to make sure its assumption of no 
expected changes in fishing effort is correct.
    Response: NMFS agrees. The Agency intends to monitor the squid 
trawl fishery and periodically report on it in the annual HMS Stock 
Assessment and Fishery Evaluation (SAFE) Report. The information may 
include, but is not limited to, the number of squid trawl vessels 
landing swordfish and the amount of swordfish being landed by squid 
trawl vessels.
    Comment 15: NMFS should clarify whether squid trawl vessels will 
continue to be allowed to fish in the

[[Page 49372]]

pelagic longline (PLL) closed areas if Alternative A2 is implemented.
    Response: Squid trawl vessels issued an Incidental HMS Squid Trawl 
permit will continue to be allowed to fish in the PLL closed areas. 
However, the Illex squid trawl fishery generally does not occur in PLL 
closed areas, including the East Florida Coast, DeSoto Canyon, and 
Charleston Bump PLL closed areas. There could potentially be some 
overlap with the one-month Northeastern U.S. PLL closure, but the 
incidental catch of BFT and other HMS by squid trawl vessels is very 
low and retention is prohibited.

Issue B--Smoothhound Shark Trawl Comments

    Comment 16: NMFS should allow Atlantic trawl fishermen to retain 
smoothhound sharks to reduce regulatory discards.
    Response: NMFS agrees. NMFS intends to allow trawl fishermen to 
retain incidentally-caught smoothhound sharks to reduce regulatory 
discards of these species and to maintain the historic nature of the 
Atlantic trawl fishery. Based on catch and landings data over the past 
10 years, trawl fishermen rarely target smoothhound sharks. Those that 
are retained are typically caught incidentally while fishing for other 
species such as Loligo squid, summer flounder, scup, and whiting. 
Consistent with the intent of Amendment 3 to the 2006 Consolidated HMS 
FMP to minimize changes to the smoothhound shark fishery, Alternative 
B2 is NMFS's preferred alternative to address the retention of 
smoothhound sharks caught incidentally in trawl gear.
    Comment 17: A smoothhound shark retention limit of 25 percent of 
the total catch, by weight, is too restrictive and will not effectively 
reduce regulatory discards.
    Response: NMFS disagrees. Implementing any retention limit could 
potentially create regulatory discards. However, a retention limit of 
25 percent smoothhound sharks, by weight, was specifically chosen to 
minimize regulatory discards while ensuring that the trawl fishery for 
smoothhound sharks remains incidental. This limit incorporates 89 
percent of the trips that have occurred over the last 10 years, and 
precludes only 11 percent of trips with high smoothhound shark retained 
catch. Because the retention limit incorporates a very large proportion 
of historical trips (89 percent), NMFS believes the alternative is 
appropriate. It achieves a balance between minimizing changes to the 
smoothhound shark fishery while preserving the incidental nature of the 
trawl fishery.
    Comment 18: A smoothhound shark retention limit equivalent to 25 
percent of the total catch, by weight, is too high and will encourage 
directed trawl fishing effort on smoothhound sharks.
    Response: NMFS disagrees. Although a 25-percent retention limit 
incorporates the vast majority of historical trawl trips, it is not 
high enough to encourage a directed fishery. Smoothhound sharks have 
been unregulated since the fishery developed in the mid-1990s. Catch 
and landings data from the past 10 years indicate that, even when 
unmanaged, a directed trawl fishery for smoothhound sharks has not 
developed. NMFS does not believe that implementing a retention limit 
for smoothhound sharks caught in trawl gear will encourage a directed 
fishery.
    Comment 19: The proposed smoothhound shark retention limit could 
alter commercial trawl fishing effort or behavior.
    Response: NMFS disagrees. Even while the fishery has been 
unregulated, trawl fishermen have rarely targeted smoothhound sharks. 
Because smoothhound sharks are caught and retained incidentally when 
fishing for other species, it is not likely that trawl fishermen will 
change their fishing effort or behavior to catch smoothhound sharks 
solely because of the implementation of a retention limit.
    Comment 20: Implementing a percentage-based retention limit will be 
difficult to comply with since it will require that both the 
smoothhound shark portion of the catch and the total catch be weighed. 
Obtaining at-sea weights is very difficult, so it will be difficult to 
definitively calculate the percent of catch while at sea. Enforcement 
action could only occur at the dock. Many comments recommended that a 
single total allowable weight of smoothhound sharks should be used as 
the retention limit. The Mid-Atlantic Fishery Management Council 
encouraged NMFS to explore a 5,000 lb trip limit as an alternative to 
the 25-percent retention limit.
    Response: This comment was expressed by several constituents. 
Although NMFS did not include an alternative for an absolute weight 
retention limit in the proposed rule, the Agency did perform additional 
analyses pursuant to this comment for the final rule to determine the 
feasibility of this recommendation. The analysis was based upon the 
preferred alternative (i.e., a 25-percent smoothhound shark retention 
limit relative to total catch). The next step was to determine an 
absolute weight that is equivalent to the 25-percent retention limit. 
To calculate an absolute weight equivalent, NMFS analyzed VTR data from 
trawl trips that caught smoothhound sharks between 2000 and 2009. As 
expected, the vast majority of trawl trips had a very low total weight 
of smoothhound sharks, which is indicative of an incidental fishery. 
However, there was very little correlation between percent catch and 
weight. This is likely due to the wide range in hold capacities of 
vessels that retain smoothhound sharks caught in trawl gear. Once the 
smoothhound trawl trips were plotted, NMFS investigated several options 
to find an equivalent weight, including the use of ``best fit'' trend 
lines and finding a retention weight that incorporates the same 
proportion of trips as the preferred alternative (89 percent of trips). 
Due to the wide range of weights, NMFS was not able to determine a 
useable and robust retention limit equivalent to 25 percent catch. 
Furthermore, the two methods found equivalent retention limits that 
ranged from 145 lbs-900 lbs; both of which are substantially lower than 
the MAFMC's suggestion, and too low and variable to maintain the 
historical nature of the trawl fishery. Through this analysis, NMFS 
determined that an absolute weight retention limit would not prevent 
directed effort by smaller trawl boats with low catch levels and could 
be overly restrictive for larger vessels. Thus, NMFS is implementing 
Alternative B2, which provides a ``sliding scale'' in the form of a 
percentage and allows trawl vessels of all sizes to retain 
incidentally-caught smoothhound sharks while also preventing all trawl 
vessels from directing effort on smoothhound sharks. This approach is 
consistent with other HMS incidental trawl retention limits, including 
swordfish. With regards to compliance, trawl fishermen are encouraged 
to maintain an ongoing tally during fishing operations to ensure that 
their smoothhound shark catch is not excessive. Because trawls are 
being managed as an incidental gear, trawl fishermen are discouraged 
from actively targeting smoothhound sharks. NMFS agrees that at-sea 
enforcement of the 25-percent retention limit will be difficult in some 
cases but disagrees that it is impossible in all cases. As the 
commenter notes, the retention limit may also be enforced dockside 
during offloading.
    Comment 21: Trawl gear, like gillnet gear, should be an authorized 
gear in the smoothhound shark fishery and fishermen should be allowed 
to direct effort on the species.
    Response: As discussed in the response to Comment 7, trawl gear is

[[Page 49373]]

not authorized for any HMS. However, because smoothhound sharks have 
historically been captured incidentally while trawling for squid, 
summer flounder, scup, whiting, and other species, NMFS is implementing 
a small allowance for all trawl vessels to retain incidentally-caught 
smoothhound sharks similar to the small allowance allowed for swordfish 
by squid trawl vessels. This allowance is intended to maintain the 
historical nature of incidental catches of smoothhound sharks in 
Atlantic trawl fisheries.
    Comment 22: A smoothhound shark stock assessment should be a 
priority due to the unknown status of these species.
    Response: A stock assessment is fundamental to ensure the effective 
management of a fishery. However, stock assessments require a variety 
of data inputs, including landings and discard data reported by 
fishermen. At this time, much of the data on smoothhound sharks are 
incomplete. One of the objectives of Amendment 3 is to collect data 
that can be used to inform future stock assessments.
    Comment 23: NMFS received a comment requesting that trawl fishermen 
that catch smoothhound sharks not be required to fill out a separate 
logbook.
    Response: Under Alternative B2, the final action, trawl fishermen 
who retain incidentally-caught smoothhound sharks will be required to 
obtain an open-access commercial smoothhound shark permit. Currently, 
there is no reporting requirement associated with the permit. In the 
future, NMFS may decide that logbooks or other reporting mechanisms are 
appropriate. However, NMFS will not pursue this unless existing 
reporting methods prove to be inadequate, until NMFS understands the 
universe of permitted smoothhound shark fishermen, and until NMFS can 
determine the most appropriate mechanism for reporting while minimizing 
duplication with current reporting requirements.
    Comment 24: Smoothhound shark trawl landings should be deducted 
from the overall smoothhound shark quota and there should be no 
specific gear quota allocations.
    Response: NMFS agrees. The smoothhound shark quota was developed in 
Amendment 3 to the Consolidated HMS FMP and will be implemented when 
other management measures for smoothhound sharks become effective. All 
smoothhound shark landings will be counted against the quota, 
regardless of gear type.
    Comment 25: NMFS received a comment indicating that the proposed 
action could increase trawl fishing effort and possibly result in 
increased impacts to essential fish habitat (EFH), the sea floor, and 
protected resources.
    Response: This final rule will establish a retention limit for 
smoothhound sharks caught incidentally while fishing for other species 
with trawl gear. NMFS does not expect that trawl fishing effort will 
change because of this action. Although the vast majority of historical 
trawl trips that landed smoothhound sharks could still occur under 
Alternative B2, 11 percent of historically-acceptable trips would 
likely be precluded. Therefore, any change in trawl fishing that could 
potentially occur as a result of this final action would tend to be in 
the direction of decreased fishing effort, due to the implementation of 
a limit on the amount of smoothhound sharks that can be retained by 
trawl vessels.
    Comment 26: One commenter stated that the smoothhound shark 
retention limit will lead to regulatory discards and that more research 
should be performed to determine the proportion of smoothhound sharks 
that are alive at trawl haulback. This information could be used to 
develop regulations to require discarding of live individuals while 
allowing for the retention of dead smoothhound sharks. Another 
commenter stated that only males should be allowed to be retained and 
that females should be released to allow for greater reproductive 
potential in the population.
    Response: NMFS agrees that additional research would be helpful to 
fully characterize the incidental smoothhound shark fishery. Data 
collected from additional research could provide information regarding 
trawl gear mortality and smoothhound sex ratios. Once management 
measures are in place, including permitting, reporting, and observer 
requirements, NMFS will be able to collect this information and 
implement additional management measures, if necessary. Currently, 
however, the available information does not support live-release or 
sex-specific release requirements.
    Comment 27: Allowing trawl fishermen to retain a limited amount of 
smoothhound sharks is not likely to impact the stock.
    Response: NMFS agrees. Although a formal stock assessment has not 
been performed, catch rates and levels have stayed reasonably 
consistent over the past 10 years. There is no indication that the 
smoothhound shark stock cannot support current harvest levels. This 
final action will not increase trawl fishing effort levels or rates. It 
implements a management measure that will keep trawl fishing effort 
approximately at current levels.
    Comment 28: Several commenters stated that while the ecological 
impacts are negligible, the economic benefits could be large for many 
trawl fishermen.
    Response: NMFS does not expect that trawl fishing effort levels or 
rates will change as a result of this final rule. As such, no new 
direct, indirect, or cumulative ecological impacts are expected. 
However, continuing to allow trawl fishermen to retain and sell 
incidentally-caught smoothhound sharks, rather than prohibiting trawl 
landings, will maintain some revenue from the species. The allowance to 
retain and sell a limited number of smoothhound sharks is expected to 
maintain revenues at levels just below the 10-year average of $68,968 
annually across the entire trawl fishery.
    Comment 29: One commenter disagreed with the statement in the 
economic impact analysis that businesses supporting trawl fisheries do 
not rely on smoothhound shark landings, especially as the statement 
applies to Ocean City, MD.
    Response: Smoothhound sharks are overwhelmingly caught and retained 
incidentally in Atlantic trawl fisheries while fishing for other 
species. They are not the primary reason for fishermen to embark on a 
trawl trip. NMFS is establishing a trawl retention limit that will 
allow 89 percent of historical trips that landed smoothhound sharks to 
continue to occur. Because the retention of trawl-caught smoothhound 
sharks will continue to be allowed at historical levels, businesses 
supporting trawl trips are not likely to be affected by this 
rulemaking. If, after the fishery is better characterized through 
mandatory permitting, reporting, and observer coverage, it is 
determined that smoothhound sharks caught in trawl gear have a greater 
indirect economic impact, the economic analyses will be updated.
    Comment 30: NMFS received several comments asking how the 
prohibition on shark finning, the 2010 Shark Conservation Act, and the 
fins-attached requirement implemented through the final rule for 
Amendment 3 to the 2006 HMS FMP would impact this rulemaking. Comments 
ranged from support for a fins-attached requirement in the smoothhound 
shark fishery, to a modification of the 5-percent fin-to-carcass ratio, 
to opposition to a fins-attached requirement due to efficiency and meat 
quality reductions. Additionally, NMFS received suggestions regarding 
how the 2010

[[Page 49374]]

Shark Conservation Act should be implemented in Atlantic trawl 
fisheries.
    Response: The 2010 Shark Conservation Act was signed into law on 
January 4, 2011. This Act, among other things, prohibits the removal of 
fins from sharks in the U.S. EEZ. The Act also includes a separate 
provision addressing the smoothhound shark fishery. NMFS is currently 
preparing a proposed rule to implement the 2010 Shark Conservation Act 
and will consider these comments during that rulemaking. This final 
rule, however, does not address the landing condition of any shark 
species aboard a vessel or when landed and, therefore, these comments 
are outside the scope of this rulemaking.
    Comment 31: NMFS received a comment requesting that the Agency not 
move forward with this rule until after the 2010 Shark Conservation Act 
is implemented.
    Response: The 2010 Shark Conservation Act addresses the condition 
of sharks aboard a vessel or when landed. Under this final rule, NMFS 
is providing for the limited retention of smoothhound sharks caught 
incidentally in trawl gear to maintain the historical nature of the 
trawl fishery and to minimize changes, consistent with the intent of 
Amendment 3 to the HMS FMP. Thus, the final action in this rule does 
not address the condition of sharks aboard a vessel or when landed. The 
2010 Shark Conservation Act will be implemented in a separate 
rulemaking and need not be completed first.
    Comment 32: Some commenters disagreed with the Draft Finding of No 
Significant Impact (FONSI) assertion that the action is unlikely to 
jeopardize the sustainability of any non-target species. The commenters 
indicated that because this rule could lead to an at-sea processing 
allowance, enforcement will be complicated and will result in fishermen 
finning other shark species. The sustainability of other shark species 
would be in jeopardy due to potential at-sea processing allowances.
    Response: The prevention of shark finning is an important objective 
for NMFS. As noted in the response to Comment 30, NMFS is preparing a 
proposed rule to implement the 2010 Shark Conservation Act. Within the 
context of this final rule, the action to establish a retention limit 
for smoothhound sharks in the Atlantic trawl fisheries is not likely to 
jeopardize the sustainability of any non-target shark species. This 
action is not expected to alter trawl fishing effort levels and, 
therefore, no new impacts to non-target shark species are expected.
    Comment 33: NMFS received a comment stating that the Draft FONSI is 
erroneous because smoothhound shark issues became controversial after 
the 2010 Shark Conservation Act became law. Therefore, an environmental 
impact statement (EIS) should have been prepared rather than an 
environmental assessment (EA).
    Response: The Draft FONSI considered 16 criteria in making a 
determination of no significant impact. Each criterion is relevant to 
making a determination and has been considered individually, as well as 
in combination with the others. The significance of this action was 
analyzed based on the NAO 216-6 criteria and the President's Council on 
Environmental Quality (CEQ) context and intensity criteria, including 
the eighth criterion: ``To what degree are the effects on the quality 
of the human environment expected to be highly controversial?'' NMFS 
notes that interest in both the swordfish and smoothhound shark 
portions of the proposed rule was low during previous outreach efforts. 
NMFS recognizes that the visibility of, and interest in, the 
smoothhound shark fishery may have increased with passage of the 2010 
Shark Conservation Act. However, such increased interest is not enough 
to make the proposed action controversial, for the purpose of NEPA. The 
term ``controversial'' does not refer to the mere existence of 
opposition to, or interest in a proposed action; rather 
``controversial'' refers to cases where a substantial dispute exists as 
to the size, nature, or effect of the major federal action. Such 
substantial dispute does not exist here. Moreover, as discussed above, 
any heightened interested in or controversy surrounding the Shark 
Conservation Act is unrelated to implementing a limited smoothhound 
retention limit in Atlantic trawl fisheries. As such, controversy 
resulting from the legislation does not impact NMFS' finding of no 
significant impact. NMFS has determined that the FONSI was accurate and 
warranted, per NOAA NEPA guidance, thus an EA is the appropriate level 
of analysis for the current final rule rather than an EIS.
    Comment 34: NMFS received a comment indicating that the rule will 
have implications for the entire Atlantic and Gulf of Mexico, but the 
EA only focuses upon the mid-Atlantic region.
    Response: The vast majority of trawl trips that catch smoothhound 
sharks have historically occurred in the mid-Atlantic region. As such, 
the characterization of the fishery focused upon this area. It is not 
presently possible for NMFS to speculate what the smoothhound shark 
trawl fishery may look like in areas where the fishery could expand. If 
the incidental smoothhound shark trawl fishery begins to expand outside 
of the mid-Atlantic region, NMFS will conduct additional analyses to 
characterize that fishery and develop new management measures, if 
necessary.
    Comment 35: NMFS received a comment that, by not authorizing trawl 
gear, the Agency is attempting to circumvent ESA requirements to 
prepare a Biological Opinion (BiOp). The commenter stated that if NMFS 
intends to allow trawl gear to catch smoothhound sharks, the Agency 
should prepare a new BiOp for the trawl fishery.
    Response: NMFS disagrees. BiOps document whether a Federal activity 
is likely to jeopardize the continued existence of an ESA-listed 
species or result in the destruction or adverse modification of a 
species critical habitat. Typically, a BiOp is prepared for each 
directed fishery and can contain requirements to mitigate or prevent 
impacts to endangered species or critical habitat. It is not common for 
a BiOp to be prepared for an incidental fishery because the fishing 
activities have already been assessed under the directed fishery's 
BiOp. In the case of smoothhound sharks and trawl gear, the directed 
trawl fisheries each have BiOps that have assessed the fishing activity 
and possibly required mitigation measures. For example, when 
smoothhounds sharks are caught incidentally in trawl gear, they are 
most often caught in the directed fisheries for Loligo squid, summer 
flounder, scup, croaker, silver hake (whiting), and skate. The Loligo 
squid fishery was analyzed in the 2010 Mackerel Squid and Butterfish 
BiOp (https://www.nero.noaa.gov/prot_res/section7/NMFS-signedBOs/SMB%20BIOP%202010.pdf.) The summer flounder and scup fisheries were 
analyzed in the 2010 Summer Flounder, Scup, and Black Sea Bass BiOp 
(https://www.nero.noaa.gov/prot_res/section7/NMFS-signedBOs/FLS_SCP_BSB%20BIOP%202010.pdf). The silver hake fishery was analyzed in the 
2010 Northeast Multispecies BiOp (https://www.nero.noaa.gov/prot_res/section7/NMFS-signedBOs/MULTISPECIES%20BIOP%202010.pdf). The skate 
fishery was analyzed in the 2010 Northeast Skate Complex BiOp (https://www.nero.noaa.gov/prot_res/section7/NMFS-signedBOs/SKATE%20BIOP%202010.pdf). Since the directed trawl fisheries that 
incidentally catch smoothhound sharks have already been analyzed under 
the directed fishery's BiOps, it would be duplicative and unnecessary 
to reinitiate ESA

[[Page 49375]]

consultation for the incidental smoothhound shark trawl fishery.

Changes From the Proposed Rule

    Minor changes to the paragraphs at 50 CFR 635.4(f)(1) and 635.4(n) 
have been made to clarify that the term ``or sold'' in the original 
paragraphs means ``or from which Atlantic swordfish are sold.''

Classification

    The NMFS AA has determined that this final action is necessary for 
the conservation and management of the HMS fishery, and that it is 
consistent with the Magnuson-Stevens Act, the 2006 Consolidated 
Atlantic HMS FMP and its amendments, ATCA, and other applicable law.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the Incidental HMS Squid Trawl provisions 
because such delay would be contrary to the public interest. Failure to 
implement this rule immediately would undermine its intent. The squid 
trawl management measures in this final rule will reduce economic waste 
by converting incidentally-caught swordfish regulatory dead discards 
into landings for sale and human consumption, improve data collection, 
and have no adverse environmental impacts. This rule will grant 
eligibility for all Illex squid moratorium permit holders to be issued 
a new Incidental HMS Squid Trawl permit that will allow these vessels 
to retain incidentally-caught swordfish that previously would have been 
discarded. Based upon observer data, NMFS estimates that this action 
would allow a total of approximately 172 swordfish per year to be 
retained that previously had to be discarded assuming that 13 active 
Illex vessels discard 13.2 swordfish per year (or from 1.1-3.3 
swordfish/trip). In the unlikely event that all 76 permitted Illex 
vessels were to become active and retain the maximum allowable amount 
of swordfish per trip, it is possible that 4,560 or more swordfish 
could be retained (76 vessels * 4 trips/yr. * 15 swordfish/trip). 
Because the Illex squid trawl fishing season extends only through 
September of each year, any delay in effectiveness would be contrary to 
the public interest and against the intention of this rule to reduce 
regulatory dead discards of swordfish by squid trawl vessels. Finally, 
there is no hardship placed on the public by making this rule effective 
immediately. Those fishermen who do not apply for the permit enacted by 
this rule can continue their current practice of discarding swordfish.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. 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, NMFS's responses to those comments, and a summary 
of the analyses completed to support the action.
    The FRFA analyzed the anticipated economic impacts of the final 
action and any significant economic impacts on small entities. A 
summary of the FRFA is below. The full FRFA and analysis of social and 
economic impacts are available from NMFS (see ADDRESSES).
    In compliance with section 604(a)(1) of the Regulatory Flexibility 
Act, the purpose of this final rulemaking is, consistent with the 
Magnuson-Stevens Act, and the 2006 Consolidated HMS FMP and its 
amendments, to consider modifications to the permitting requirements 
for squid trawl vessels to retain incidentally-caught swordfish that 
would otherwise be discarded dead, and to establish smoothhound shark 
incidental retention limits for all Atlantic trawl vessels.
    Section 604(a)(2) of the Regulatory Flexibility Act requires NMFS 
to summarize significant issues raised by the public in response to the 
IRFA, a summary of NMFS' assessment of such issues, and a statement of 
any changes made as a result of the comments. The IRFA was included as 
part of the draft EA and was summarized in the proposed rule. NMFS did 
not receive any comments specific to the IRFA; however, NMFS did 
receive comments related to the overall economic impacts of the 
proposed rule. Those comments and NMFS' responses to them are mentioned 
above in the preamble for this rule. In particular, comments 2, 28, and 
29 address the rule's economic impacts. There are no substantive 
changes from the proposed rule as a result of these economic comments.
    Section 604(a)(3) requires Federal agencies to provide an estimate 
of the number of small entities to which the rule would apply. NMFS has 
determined that all squid trawl vessels that are issued an Illex squid 
moratorium fishing permit, and all trawl vessels that would obtain an 
open-access smooth dogfish permit when it becomes required in 2012, are 
small entities under the Small Business Administration (SBA) size 
standards. All potentially affected vessels either had average annual 
receipts less than $4.0 million for fish-harvesting, average annual 
receipts less than $6.5 million for charter/party boats, 100 or fewer 
employees for wholesale dealers, or 500 or fewer employees for seafood 
processors (13 CFR 121.201). These are the Small Business 
Administration (SBA) size standards for defining a ``small'' versus 
``large'' business entity in this industry.
    The final rule would apply to the 76 current (as of September 2010) 
Illex squid moratorium permit holders, of which 18 are considered 
``active'' (i.e., reported landings in 2009). Rhode Island and New 
Jersey accounted for 99 percent of Illex squid landings in 2009. NMFS 
cannot provide an estimate of the number of trawl vessels that would 
obtain an open-access permit for smoothhound sharks when they are fully 
incorporated into the HMS management unit, because the permit is 
currently not required. However, as a proxy, NMFS based its analysis 
upon vessels participating in the summer flounder and scup fisheries 
because these trawl fisheries frequently interact with smoothhound 
sharks. In 2009, approximately 1,100 vessels were issued either a 
commercial summer flounder permit or a commercial scup permit, or both, 
with 798 vessels landing summer flounder in 2000. Rhode Island, New 
York, New Jersey, Virginia, and North Carolina are the primary states 
with landings of summer flounder and scup.
    Under section 604(a)(4) of the RFA, agencies are required to 
describe any new reporting, record-keeping, and other compliance 
requirements. The new Federal permit requirement for an Incidental HMS 
Squid Trawl permit will allow NMFS to collect data regarding 
participants in the fishery and swordfish landings through Federal 
dealer reports. The Federal Incidental HMS Squid Trawl permit 
requirement will require a similar permit application to the other 
current HMS permits. The information collected on the application would 
include vessel information, owner identification and contact 
information. A modest fee to process the application and an annual 
renewal fee of approximately $20 may be required in the future.
    When developing this action, NMFS considered different ways to 
reduce the regulatory burden on and provide flexibility to the 
regulated community, consistent with the recent Presidential Memorandum 
on Regulatory Flexibility, Small Business, and Job Creation (January 
18, 2011). NMFS currently intends to issue the new Incidental HMS Squid 
Trawl permit out of its Northeast Regional Permit Office pursuant to 
this final rule and other

[[Page 49376]]

applicable provisions of 50 CFR part 635. NMFS will use similar 
application procedures as those of the Illex squid moratorium permit. 
Because both permits will be issued from the same office using similar 
forms, the amount of paperwork and completion time will be reduced. 
Similarly, NMFS will continue to require squid trawl vessel owners to 
report their catch and landings in the Northeast Fishing Vessel Trip 
Report (VTR), rather than requiring a separate HMS logbook. This will 
avoid duplicative reporting requirements. By utilizing current 
operational procedures for permit issuance and reporting, the 
regulatory burden on regulated entities will be reduced.
    Under section 604(a)(5), agencies are required to describe any 
alternatives to the rule which accomplish the stated objectives and 
which minimize any significant economic impacts. Economic impacts are 
discussed below and in the Environmental Assessment for the action. 
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) 
lists four general categories of significant alternatives that would 
assist an agency in the development of significant alternatives. 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 in a manner consistent 
with all other legal obligations, NMFS cannot exempt small entities or 
change the reporting requirements for only small entities. Thus, NMFS 
did not analyze any alternatives for either issue that fall under the 
first and fourth categories described above. In addition, NMFS intends 
to clarify and consolidate all reporting and compliance requirements 
associated with this final rule, to the extent practicable (category 
two above). All federally-permitted squid trawl vessels must currently 
report all of their landings via a NMFS Northeast Region VTR. NMFS 
intends to continue to utilize this reporting mechanism for all vessels 
that will be issued an Incidental HMS Squid Trawl permit to report 
their swordfish landings, although vessels could be selected for 
additional reporting under this rule if such reporting is determined to 
be necessary and appropriate. Similarly, the application process for 
the Incidental HMS Squid Trawl permit will be the same, or similar, to 
the process used to apply for an Illex squid moratorium permit. The 
only prerequisite for obtaining the new permit will be that the vessel 
has already been issued a valid Illex squid moratorium permit. There 
are no reporting or compliance requirements associated with 
establishing a smoothhound shark trawl vessel retention limit that 
could be consolidated, clarified, or simplified for small entities. 
Finally, NMFS does not know of any performance or design standards that 
would satisfy the aforementioned objectives of this rulemaking while, 
concurrently, complying with the Magnuson-Stevens Act (category three 
above).
    As described below, for this final rule, NMFS considered and 
analyzed four alternatives to address the retention of incidentally-
caught swordfish in squid trawl fisheries (Issue A), and three 
alternatives to address the retention of incidentally-caught 
smoothhound sharks in trawl fisheries (Issue B).
    The first alternative for Issue A is the no action alternative. 
This alternative would maintain existing HMS permit requirements and 
incidental swordfish retention limits in squid trawl fisheries. The 
second alternative, the final action, will implement a new permit 
(referred to as the Incidental HMS Squid Trawl permit) for Illex squid 
moratorium permit holders to retain up to 15 swordfish per trip, the 
current squid trawl limit. The third alternative would exempt Illex 
squid moratorium permit holders from current HMS permit requirements 
(i.e., the ``HMS permit triple-pack'') and allow them to retain up to 
15 swordfish when fishing for squid. Finally, the fourth alternative 
would establish either a new Incidental HMS Squid Trawl permit 
available to all vessel owners currently issued a Loligo squid 
moratorium permit, or establish an exemption from the need for Loligo 
squid trawl vessels to be issued the ``HMS permit triple-pack'' to 
retain swordfish.
    The no action alternative (A1) would not result in any additional 
economic impacts to small entities in the short-term. However, this 
alternative contributes to a loss of potential income by squid trawl 
vessels that may occasionally catch a swordfish while it is foraging on 
squid or in the same physical environment, during normal squid trawl 
fishing activities. Only five squid trawl vessels out of 180 active 
Illex and Loligo squid vessels have been issued the requisite ``HMS 
permit triple-pack'' needed to retain swordfish. There are 18 active 
squid trawl vessels that are issued both an Illex and Loligo permit 
(i.e., Illex/Loligo vessels). It is presumed that the five squid trawl 
vessels issued the necessary HMS permits are also Illex/Loligo vessels. 
This means that the vast majority of squid trawl vessels must discard 
any incidentally-caught swordfish because they do not have the proper 
LAPs needed to retain them. Most of the swordfish incidentally caught 
by squid trawl vessels are brought onboard dead, or die soon 
afterwards; these dead discards constitute unrealized income and 
economic waste. NMFS estimates that the no-action alternative 
contributes from $3,849.30-$4,145.40 annually in unrealized income 
individually for the 13 active Illex/Loligo squid trawl vessels that 
are not issued HMS permits. In aggregate, the total amount of 
unrealized annual income by all 13 active Illex/Loligo squid trawl 
vessels is estimated to range from $50,041-$54,007, depending upon the 
number of small and large active squid trawl vessels. Similarly, the 
total amount of unrealized annual income by all 162 active Loligo squid 
trawl vessels ranges from $57,562-$76,749, depending upon the number of 
small and large active Loligo squid trawl vessels. Each swordfish 
discard is estimated to be valued at approximately $296.10. Because the 
no-action alternative (A1) contributes to regulatory discards of dead 
swordfish by squid trawl vessels, thereby causing economic waste, and 
because current permit requirements (i.e., the ``HMS permit triple-
pack'') are not well-suited for squid trawl vessels, it was not chosen 
as the final action.
    The chosen alternative, Alternative A2, will implement a new permit 
(referred to as the Incidental HMS Squid Trawl permit) for Illex squid 
moratorium permit holders to retain up to 15 swordfish per trip, which 
is the current squid trawl limit. Because Alternative A2 will allow 
Illex squid trawl vessels to retain swordfish caught incidentally 
during normal squid trawl fishing activities, thereby converting dead 
swordfish discards into landings, this alternative is expected to 
provide some minor economic benefits to Illex squid trawl vessels. 
Specifically, this alternative is estimated to provide a moderate 
increase in annual revenues from between $3,849.30--$4,145.40 annually 
for each of the 13 active Illex/Loligo squid trawl vessels that have 
not been issued HMS permits. In aggregate, Alternative A2 could produce 
from $50,041--$54,007 annually in additional revenue amongst all 13 
active Illex/Loligo squid trawl vessels. These estimates were 
calculated using the average number of swordfish discards per tow from 
NEFSC observer data, and

[[Page 49377]]

then extrapolating to determine the average number of swordfish 
discards per year for active vessels. Also, by implementing a permit 
requirement, NMFS will obtain important fishery management information, 
such as the identification of participants in the squid trawl fishery 
that may occasionally catch swordfish. This information will help in 
outreach efforts. The Federal Incidental HMS Squid Trawl permit 
requirement will require a permit application similar to other current 
HMS permits. The information collected on the application will include 
vessel information and owner identification and contact information. A 
modest fee to process the application and an annual renewal fee of 
approximately $20 may be required in the future. This alternative is 
selected because it will convert dead swordfish discards into landings, 
provide minor economic benefits to some small entities, reduce economic 
waste, provide add