Atlantic Highly Migratory Species; Modification to the North Atlantic Swordfish and Shark Retention Limits for Certain Permit Holders and Add Inseason Adjustment Authorization Criteria, 22882-22895 [2021-08814]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 82 (Friday, April 30, 2021)]
[Rules and Regulations]
[Pages 22882-22895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08814]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 210422-0085]
RIN 0648-BI09


Atlantic Highly Migratory Species; Modification to the North 
Atlantic Swordfish and Shark Retention Limits for Certain Permit 
Holders and Add Inseason Adjustment Authorization Criteria

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

ACTION: Final rule.

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SUMMARY: NMFS is adjusting the current regulations for North Atlantic 
swordfish and shark retention limits for certain permit holders in U.S. 
Atlantic and Caribbean waters. Specifically, this action will modify 
swordfish retention limits for highly migratory species (HMS) 
Commercial Caribbean Small Boat permit holders, Swordfish General 
Commercial permit holders, and HMS Charter/Headboat permit holders with 
a commercial endorsement on a non-for hire (i.e., commercial) trip. 
This action will also modify the shark retention limits for HMS 
Commercial Caribbean Small Boat permit holders. Additionally, this 
action will add regulatory criteria for inseason adjustment of 
swordfish and shark retention limits for the HMS Commercial Caribbean 
Small Boat permit. The changes are expected to provide fishermen with 
greater flexibility, establish greater consistency across regions, and 
improve the efficiency of swordfish and shark management.

DATES: This final rule is effective on June 1, 2021.

ADDRESSES: Copies of the supporting documents, including the Final 
Environmental Assessment (EA), Regulatory Impact Review (RIR), and 
Final Regulatory Flexibility Analysis (FRFA) for this action, and the 
2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its 
amendments are available from the HMS website at: https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

FOR FURTHER INFORMATION CONTACT: Nicolas Alvarado at 727-824-5399, 
Delisse Ortiz at 240-681-9037, or Steve Durkee at (202) 670-6637.

SUPPLEMENTARY INFORMATION: Atlantic HMS are managed under the dual 
authorities of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act 
(ATCA). The implementing regulations for the 2006 Consolidated Atlantic 
HMS FMP and its amendments are at 50 CFR part 635.

Background

    In response to requests from HMS Advisory Panel members and other 
members of the public, NMFS undertook this rulemaking to provide 
consistency between the three open access swordfish handgear permits, 
all of which allow similar gears to be used within U.S. Atlantic and 
Caribbean waters, and to provide increased fishing opportunities for 
sharks in the U.S. Caribbean. Overall, this final rule should increase 
administrative efficiencies and increase management flexibility by 
managing the swordfish commercial open access permits in the different 
regions similarly. Additionally, this final rule should improve the 
efficiency of swordfish and shark management in all regions, while 
continuing to prevent overfishing.
    The proposed rule published on April 27, 2020 (85 FR 23315). The 
details of this rulemaking can be found in that proposed rule, and are 
not repeated here. Additional information can be found in the Final EA 
supporting this action, along with the 2006 Consolidated HMS FMP and 
its amendments [see ADDRESSES].
    The comment period for the proposed rule closed on June 26, 2020. 
NMFS held two public hearings via webinar, and consulted with the HMS 
Advisory Panel. In addition to the comments received during the 
webinars and from the HMS Advisory Panel, NMFS received 29 written 
comments, including comments from the Puerto Rico Department of Natural 
Resources, Florida Fish and Wildlife Conservation, environmental non-
governmental organizations, recreational and commercial fishermen, and 
the general public. The comments received, and responses to those 
comments, are summarized below in the Response to Comments section.
    After considering the management goals of this final action and 
public comments, NMFS is adjusting some of the proposed measures. 
Specifically, for swordfish, this final rule will increase the default 
retention limit to 18 swordfish per vessel per trip for the HMS 
Commercial Caribbean Small Boat and Swordfish General Commercial permit 
holders, and HMS Charter/Headboat permit holders with a commercial 
endorsement on a non-for hire (i.e., commercial) trip in all regions 
except for the Florida Swordfish Management Area, which will remain at 
0 swordfish per vessel per trip. This measure is a change from the 
proposed retention limit of six swordfish per vessel per trip for all 
regions except for the Florida Swordfish Management Area. For sharks, 
this rule will establish a default retention limit of three non-
prohibited smoothhound sharks, non-blacknose small coastal sharks, or 
large coastal (other than hammerhead, silky, and sandbar) sharks 
(combined) per vessel per trip for the HMS Commercial Caribbean Small 
Boat permit holders. This measure is a change from the proposed default 
retention limit of three smoothhound and/or tiger sharks (combined) per 
vessel per trip for the HMS Commercial Caribbean Small Boat permit 
holders. Lastly, this action will establish inseason adjustment 
procedures for the HMS Commercial Caribbean Small Boat permit swordfish 
and shark retention limits. This measure is unchanged from the proposed 
rule, and will allow NMFS to make inseason adjustments to the retention 
limits, as is already allowed for other swordfish and shark permits. 
These final actions are expected to provide fishermen with

[[Page 22883]]

greater flexibility, establish greater consistency across regions, and 
improve the efficiency of swordfish and shark management, while 
continuing to prevent overfishing.

Response to Comments

    NMFS received 29 written comments from commercial and recreational 
fishermen, Regional Fishery Management Councils (FMCs), states and 
territories, environmental non-governmental organizations, scientists, 
the Atlantic HMS Advisory Panel members, and other interested parties 
during the public comment period. All written comments can be found at 
https://www.regulations.gov. Comments are summarized below by major 
topic, together with NMFS' responses.

A. Retention Limit Inseason Adjustment Process (Alternatives A1-A3)

    Comment 1: NMFS received multiple comments stating that NMFS should 
prefer the No Action alternative (Alternative A1) regarding the 
inseason adjustment process. In addition, the Puerto Rico Department of 
Natural and Environmental Resources (PR DNER stated that the inseason 
retention limit adjustment process should not be changed because of the 
lack of data in the U.S. Caribbean region.
    Response: NMFS disagrees that a lack of data in the U.S. Caribbean 
region negates the ability to adopt inseason adjustment criteria. 
Alternatives A2 and A3 simply establish inseason adjustment criteria. 
Any inseason adjustment to the retention limits would be based upon the 
best scientific information available, consistent with the Magnuson-
Stevens Act and other applicable laws. These data include the relevant 
shark and swordfish status information, dealer reports, and U.S. 
Caribbean trip ticket data. Similarly, if NMFS maintains the No Action 
alternative and adjusts the retention limit via a framework action, 
NMFS would use the same data. Under NMFS' preferred alternatives A2 and 
A3, the adjustment process would be more flexible and the retention 
limits could be adjusted more quickly than would be done under the 
existing process. These alternatives could result in an increased 
likelihood that the retention limits would be adjusted as needed 
throughout the year, reducing administrative costs and potentially 
providing more timely management changes to swordfish and shark 
fishermen. This flexibility in reacting to the available data can 
assist in maintaining sustainable stocks and ensuring quotas are not 
exceeded.
    Additionally, National Standard 3 requires that, to the extent 
practicable, an individual stock of fish be managed as a unit 
throughout its range and interrelated stocks of fish be managed as a 
unit or in close coordination. The preferred alternatives (Alternatives 
A2 and A3) make management consistent throughout the range of the 
swordfish and shark stocks within the U.S. Exclusive Economic Zone 
(EEZ) as well as in state waters, because Federal HMS permit holders 
must comply with Federal regulations no matter where they fish, unless 
a state has measures that are more restrictive.

B. Swordfish Retention Limits (Alternatives B1-B4)

    Comment 2: NMFS received suggestions regarding potential ways to 
adjust the swordfish retention limit in order to ensure the swordfish 
quota is not exceeded. One suggestion was starting with an 18 fish per 
vessel per trip retention limit for all affected permit holders and 
reducing that to six fish per vessel per trip when 80 percent of the 
quota is reached. Another suggestion was a 15 swordfish retention limit 
that drops to six fish once 50,000 lb of swordfish has been landed. 
Another suggestion was a 25-mt set-aside quota for the affected permit 
holders; the retention limit would be reduced to zero once that set-
aside quota was reached.
    Response: Currently, before making any inseason adjustments to 
regional retention limits for the Swordfish General Commercial permit, 
NMFS considers the inseason adjustment criteria and other relevant 
factors codified in 50 CFR 635.24(b)(4)(iv)(A) through (G). NMFS uses 
these criteria when determining whether retention limits need to be 
modified in the middle of a fishing season. Under preferred Alternative 
A2, NMFS would adopt identical inseason adjustment criteria to allow 
for the adjustment of the regional swordfish retention limit for the 
HMS Commercial Caribbean Small Boat permit as well. While the 
suggestions provided are not explicitly incorporated into the inseason 
adjustment criteria, they are consistent with the factors NMFS 
considers before making any inseason adjustments. For instance, if NMFS 
determines that the retention limit for Swordfish General Commercial, 
HMS Commercial Caribbean Small Boat, and/or HMS Charter/Headboat permit 
holders could lead to an overharvest of the swordfish quota or lead to 
limited opportunities for vessels in other regions, as indicated under 
criteria C (the estimated amounts by which quotas for other categories 
of the fishery might be exceeded) or criteria 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), NMFS can reduce the retention limit inseason to reduce the rate 
of landings under the inseason adjustment criteria in this final 
action. Based on current domestic quota utilization trends and the fact 
that the swordfish quota has not been fully utilized since 2003, NMFS 
does not see a reason to create a separate quota category at this time.
    Comment 3: NMFS received comments supporting an increase in the 
swordfish retention limit to 18 fish per vessel per trip for the 
Swordfish General Commercial, HMS Commercial Caribbean Small Boat, and 
HMS Charter/Headboat permit holders. Commenters noted that the United 
States does not fully harvest the swordfish quota and that increasing 
the swordfish retention limit for these vessels could better utilize 
the quota. Commenters, including the Florida Fish and Wildlife 
Conservation Commission, also supported maintaining the zero swordfish 
retention limit in the Florida Swordfish Management Area.
    Response: As a result of public comments and further consideration 
of the primary objectives of this rulemaking, NMFS changed the 
preferred swordfish retention limit alternative from Alternative B2 to 
Alternative B4. Under Alternative B4, the default swordfish retention 
limit for HMS Commercial Caribbean Small Boat permit holders, and 
Swordfish General Commercial, and HMS Charter/Headboat permit holders 
outside of the Florida Swordfish Management Area would be 18 swordfish 
per trip. In the Florida Swordfish Management Area, the default 
swordfish retention limit would be zero fish for Swordfish General 
Commercial and HMS Charter/Headboat permit holders. NMFS noted in the 
proposed rule that, with regard to Alternatives B3 and B4, it was not 
yet clear that Swordfish General Commercial permit holders or HMS 
Commercial Caribbean Small Boat permit holders would benefit from a 
retention limit range of 0 to 18 swordfish per vessel per trip or if a 
default retention limit of 6 to 18 swordfish per trip was appropriate 
for the U.S. Caribbean region. Public comments indicated that a 
retention limit range of 0 to 18 swordfish per vessel per trip and a 
default retention limit of 18 swordfish per trip for the U.S. Caribbean 
region would be beneficial and appropriate for Swordfish General 
Commercial permit holders and HMS Commercial Caribbean Small Boat 
permit holders.

[[Page 22884]]

    The change in preferred alternatives from B2 to B4 was based on 
five considerations. First, one of the goals of this rulemaking is to 
provide consistency in swordfish retention limits among the three open 
access swordfish handgear permits. Thus, if an increased default 
retention limit for one permit is implemented, a similar default 
retention limit increase for the other permits would be implemented, 
provided such a change is also supported. Second, the North Atlantic 
swordfish stock is not overfished nor is it experiencing overfishing, 
and therefore the stock can support higher removal levels within 
established quotas without jeopardizing the sustainability of the 
stock. Third, an increase in the retention limit to 18 swordfish per 
vessel per trip for Swordfish General Commercial and HMS Charter/
Headboat permit holders outside of the Florida Swordfish Management 
Area could provide additional fishing opportunities because trips that 
target swordfish farther offshore will be more likely to be profitable 
due to the higher number of swordfish that could be landed and sold. 
Fourth, the HMS Commercial Caribbean Small Boat (CCSB) permit is 
currently underutilized by commercial fishermen in the region, and a 
greater retention limit of swordfish that matches the retention limit 
of other permits could incentivize use of the HMS Commercial Caribbean 
Small Boat permit. If more fishermen in the region obtain the permit 
and comply with the reporting requirements, NMFS and territorial 
governments might receive better, more complete landings information. 
Fifth, this rule is also finalizing adaptive management measures 
(Alternative A2) that would allow NMFS to quickly adjust swordfish 
retention limits regionally (down to zero fish, if necessary) in 
response to landings information.
    Comment 4: NMFS received comments that swordfish and shark 
retention limits (Alternatives C1-C4) should not be increased until 
affected vessels are required to report catch in logbooks and have a 
vessel monitoring system (VMS) unit on board.
    Response: While logbooks and VMS units can provide important 
information for sustainable management of HMS, their application may 
not be appropriate in all fisheries. In the case of HMS Commercial 
Caribbean Small Boat permit holders, revenues are not high enough to 
justify the high price of a VMS unit, which has an initial cost of over 
$3,000 in addition to monthly and annual service fees. The HMS 
Commercial Caribbean Small Boat permit was implemented to facilitate 
improved HMS landings data. While a logbook could provide important 
information in the future, the near-term priority is to gather basic 
landings data to help track HMS fishing mortality. Furthermore, 
additional logbook and VMS requirements could disincentivize fishermen 
from obtaining the HMS Commercial Caribbean Small Boat permit, which 
would be counterproductive to the permit's purpose. Currently, 
Commercial Caribbean Small Boat permit holders are required to report 
landings through territorial reporting programs.
    Similarly, revenue in the Swordfish General Commercial and 
commercial HMS Charter/Headboat swordfish fisheries do not justify the 
high cost of a VMS unit. With an initial cost of $3,000 (not including 
monthly and annual service fees), a fisherman would need to sell 615 lb 
dw of swordfish to cover the cost (assuming average ex-vessel price of 
$4.88 per pound of swordfish). The current swordfish minimum length is 
equivalent to a 33 pound dressed weight fish, thus, the fishermen would 
need to land and sell 19 swordfish just to cover the cost of the VMS 
unit (615 lb dw/33 lb minimum size = 18.6), which is more than the 
maximum retention limit. Thus, a fisherman would need to take 
approximately two trips just to cover the cost of the VMS unit. Data 
indicate that between 2014 and 2020, Swordfish General Commercial 
permit holders who retain swordfish conduct on average 29 trips per 
year. During that same time period, on average, approximately 15 
vessels (out of 665 permitted vessels) were active annually in the 
fishery. Thus, the typical Swordfish General Commercial permit holder 
engages in fewer than two trips per year, and the cost of a VMS unit 
would exceed their annual ex-vessel revenue. The Agency expects this to 
be the case with HMS Commercial Caribbean Small Boat permit holders 
too, but does not have the data necessary to perform an analogous 
economic analysis. As participation in these fisheries increases, data 
collection methodologies will be reassessed.
    Regarding logbook requirements, NMFS continues to monitor the 
fisheries and may increase logbook reporting requirements in the 
future, especially given the move towards electronic logbooks 
throughout the Agency and overlapping requirements between regions. For 
example, effective January 5, 2021, all South Atlantic Fishery 
Management Council and Gulf of Mexico Fishery Management Council 
Charter/Headboat permit holders are required to report in an electronic 
logbook (July 21, 2020; 85 FR 44005). Gulf of Mexico Council permit 
holders will also be required to submit hail in and hail out 
declarations via a VMS or VMS-type device that is capable of logging 
location data, although that requirement is delayed indefinitely per 
the July 21, 2020 final rule (85 FR 44005). Any HMS Charter/Headboat 
permit holders that are also permitted in for-hire South Atlantic or 
Gulf of Mexico Council fisheries will be required to abide by these 
reporting requirements.
    Comment 5: NMFS received multiple comments stating that the 
swordfish retention limit for HMS Commercial Caribbean Small Boat 
permit holders should not be increased above six fish per trip because 
the vessels engaged in that fishery cannot safely carry more than six 
swordfish. One commenter suggested that vessels too small to carry six 
or more swordfish may transfer the fish to another vessel while at sea, 
and that such transfers could encourage excessive landings and reduce 
prices in the local markets, causing economic harm. Other commenters 
stated that some vessels can safely hold more than 6 swordfish and that 
vessel safety weight limits should be left to the discretion of the 
vessel operator.
    Response: At the proposed rule stage, NMFS preferred the 
alternative that would increase the retention limit range to zero to 
six swordfish per vessel per trip and the default retention limit to 
six swordfish per vessel per trip, for all three permits, because it 
was not clear that these permit holders would be able to benefit from a 
higher retention limit range. NMFS specifically requested public 
comments on the swordfish retention limits for these permits, and in 
particular, whether vessels with these permits could support the extra 
weight of additional swordfish. Public comments indicated that 
Swordfish General Commercial permit holders, HMS Charter/Headboat 
permit holders, and HMS Commercial Caribbean Small Boat permit holders 
would benefit from a retention limit range of 0 to 18 swordfish per 
vessel per trip, and that a default retention limit of 18 swordfish per 
trip was appropriate for the U.S. Caribbean region because some vessels 
can safely hold more than 6 swordfish. After reviewing all the public 
comments, NMFS feels Alternative B4, setting a retention limit range of 
0 to 18 swordfish per vessel per trip and a default retention limit of 
18 swordfish per vessel per trip, is the most appropriate alternative 
to implement. In part, this is because it will give fishermen the 
greatest opportunity to

[[Page 22885]]

harvest the North Atlantic swordfish quota. Additionally, an increase 
in the default retention limit to 18 swordfish per vessel per trip for 
Swordfish General Commercial and HMS Charter/Headboat permit holders 
outside of the Florida Swordfish Management Area could provide 
additional fishing opportunities, because trips that target swordfish 
farther offshore will now be profitable. Furthermore, the HMS CCSB 
permit is currently underutilized by commercial fishermen in the 
region, and a greater swordfish retention limit that matches the 
retention limit of other permits could incentivize use of the HMS CCSB 
permit. If more fishermen in the region obtain the permit and comply 
with the reporting requirements, NMFS and territorial governments might 
receive better, more complete landings information. These social, 
economic, and administrative benefits would not undermine the 
sustainable harvest of North Atlantic swordfish. As detailed in Section 
3.1 of the Final EA, the North Atlantic swordfish stock is not 
overfished and overfishing is not occurring. The United States has not 
harvested its domestic allocation of the stock in a number of years and 
the increased harvest by Swordfish General Commercial permit holders, 
HMS Charter/Headboat permit holders, and HMS Commercial Caribbean Small 
Boat permit holders would not jeopardize the sustainability of the 
fishery. Furthermore, the inseason adjustment criteria give NMFS the 
ability to adjust retention limits regionally (down to zero fish, if 
necessary) in response to landings information. The healthy status of 
the North Atlantic swordfish stock, in concert with the inseason 
adjustment criteria, provide confidence that Alternative B4 would not 
lead to overfishing.
    Safety at sea is an important consideration in fisheries 
management, and National Standard 10 compels the Agency to consider the 
issue. To reduce safety at sea concerns, management measures are 
specifically designed to give fishermen the flexibility to safely 
operate their vessels. In HMS fisheries, mitigating safety concerns has 
not included regulations limiting catch retention based on vessel 
weight capacity. Instead, retention limits are set based on analyses of 
ecological and socioeconomic impacts, leaving the weight capacity 
compliance to the discretion of the vessel operator. Provided 
compliance with applicable U.S. Coast Guard regulations, the HMS 
Management Division typically defers to vessel operators as to how best 
to safely operate their vessels and will do so in this rule as well.
    The transfer of any HMS at sea or in port from one vessel to 
another vessel is expressly prohibited in the regulations at 50 CFR 
635.29(a) and 635.71(a)(61).
    Comment 6: One commenter expressed concern about setting the 
swordfish retention limit on a per trip basis because fishermen could 
take multiple trips per day, increasing the harvest of swordfish. As a 
solution, the commenter suggested a daily swordfish retention limit.
    Response: A daily swordfish retention limit is not needed, because 
it is unlikely that fishermen would engage in multiple trips per day 
and gears authorized under the relevant permits are unlikely to catch 
large numbers of swordfish. As indicated in the response to Comment 3 
above, there are limited geographic areas where swordfish are available 
close enough to shore to allow fishermen to make multiple trips per 
day. One of these areas is the south Florida region. However, the 
retention limit in that area under the Swordfish General Commercial 
permit is zero swordfish. The authorized gears use a limited number of 
hooks and are constantly tended by fishermen who quickly boat the 
swordfish once hooked. For these reasons, the gears authorized under 
these permits are unlikely to catch large numbers of swordfish. 
Swordfish General Commercial permit holders may use bandit, handline, 
harpoon, rod and reel, and green-stick gear when targeting and 
retaining swordfish. HMS Charter/Headboat vessel permit holders with a 
commercial sale endorsement may use rod and reel and handline under 
open-access swordfish commercial retention limits when on a commercial 
trip. HMS Commercial Caribbean Small Boat permit holders may use 
bandit, handline, harpoon, rod and reel, and buoy gear when targeting 
and retaining swordfish. Note that buoy gear in the context of HMS 
fisheries is defined in 50 CFR 635.2 as a fishing gear consisting of 
one or more floatation devices supporting a single mainline to which no 
more than two hooks or gangions are attached. The Caribbean Fishery 
Management Council is currently considering authorizing up to 25 hooks 
per vertical line in Council managed fisheries. More than two hooks 
would not be allowed when targeting and retaining swordfish, and NMFS 
will communicate this difference with targeted outreach in the U.S. 
Caribbean.
    Furthermore, the North Atlantic swordfish stock is not overfished 
and not experiencing overfishing. The United States has not harvested 
its domestic allocation of swordfish quota in a number of years, and 
there is plenty of room under the quota for additional effort and 
landings. Thus, even if a small number of fishermen are able to make 
multiple trips per day, the increase in harvest would not impact the 
sustainability of the North Atlantic swordfish stock.
    Comment 7: NMFS received several comments about the stock status of 
North Atlantic swordfish, including whether a sub-population of 
swordfish existed in the U.S. Caribbean. These comments questioned 
whether the North Atlantic swordfish stock was healthy enough to 
support increased effort and harvest. The PR DNER submitted a comment 
stating that the size of sexual maturity has decreased for females, 
which could be a sign of an overfished stock. The PR DNER stated that 
the retention limit for swordfish should not be increased until 
Caribbean-specific research is performed on the stock.
    Response: The North Atlantic swordfish stock is not overfished and 
is not experiencing overfishing. The International Commission for the 
Conservation of Atlantic Tunas (ICCAT) Standing Committee on Research 
and Statistics (SCRS) most recently assessed the stock in 2017. This 
assessment informed an Atlantic-wide total allowable catch (TAC) and 
the resulting domestic allocation of swordfish quota. Collectively, 
ICCAT Contracting Parties have not harvested the Atlantic-wide 
swordfish TAC in a number of years. Similarly, the United States has 
not harvested its full domestic allocation of swordfish quota. Thus, 
additional effort and landings would not jeopardize the sustainability 
of the North Atlantic swordfish stock.
    The 2017 ICCAT SCRS North Atlantic swordfish stock assessment, 
which is the best scientific information available, considered all 
swordfish north of five degrees north latitude to be a single stock. 
The data considered in the assessment did not indicate any sub-
populations in the Caribbean. NMFS is unaware of any reports, data, or 
publications suggesting a decrease in size of maturity for female 
swordfish. Furthermore, ICCAT has not indicated that there are any 
signs of a decrease of size at maturity for female swordfish, with the 
North Atlantic swordfish stock currently not overfished or undergoing 
overfishing.

C. Shark Retention Limits (Alternatives C1-C4)

    Comment 8: NMFS received a number of comments regarding the shark 
retention limit for the HMS Commercial

[[Page 22886]]

Caribbean Small Boat permit. Several commenters supported the No Action 
alternative to not allow shark retention under the HMS Commercial 
Caribbean Small Boat permit. Some of these commenters stated that 
sharks in the U.S. Caribbean are more valuable for tourism (including 
recreational SCUBA diving), recreational fishing, and ecological 
services than as a harvested resource. Other commenters indicated that 
a thorough analysis on the impacts to shark stocks and protected 
resources is needed before increasing the shark retention limit. NMFS 
also received a number of comments generally supporting the retention 
of sharks under the HMS Commercial Caribbean Small Boat permit. Some 
commenters stated that a shark fishery exists in the region, with 
vessels being able to safely hold two to six sharks, so authorizing the 
retention of sharks could incentivize fishermen to obtain the 
appropriate permit and to report their catch for quota tracking, 
species diversity estimates, and fishery-dependent data collection. 
NMFS also received multiple comments stating that a combination of 
Alternatives C2 and C3 should be implemented for HMS Commercial 
Caribbean Small Boat permit holders. Commenters stated that the species 
included under Alternative C2 (smoothhounds and tiger sharks) are too 
limited and do not include the full range of species that can be 
sustainably harvested in the U.S. Caribbean. Commenters stated that 
smoothhound catch data reflect incidental catch and that fishermen are 
more likely to target tiger sharks than smoothhound sharks. Thus, an 
allowance for the combined retention of smoothhound sharks and tiger 
sharks will likely direct fishing pressure only to tiger sharks, 
possibly leading to unsustainable catch. Commenters suggested allowing 
retention of more authorized shark species including small coastal, 
large coastal, pelagic, and smoothhound sharks. The commenters also 
stated that the species list under Alternative C3 (non-prohibited large 
coastal, small coastal, pelagic, and smoothhound sharks) was closer to 
the appropriate list of allowable shark species, but the retention 
limit of six sharks was too high, with HMS Commercial Caribbean Small 
Boat vessels being able to hold two to six sharks. These commenters 
suggested a hybrid of the two alternatives would work, with an 
adjustable retention limit of up to three sharks of the following 
species groups: Non-prohibited large coastal sharks (no hammerhead, 
silky, or sandbar sharks), small coastal sharks, and smoothhound 
sharks. Some of these commenters, including PR DNER, were also 
specifically concerned about the stock status of hammerhead, oceanic 
whitetip, and shortfin mako sharks, and suggested waiting until more is 
known about whether these species can tolerate increased harvest levels 
before any changes are made to the regulations. Some commenters stated 
that retention of pelagic sharks should not be authorized.
    Response: NMFS agrees that allowing a limited amount of shark 
retention could incentivize fishermen, who are already landing sharks, 
to obtain the appropriate permit and report landings. NMFS disagrees 
that the commercial harvest of shark should not be allowed solely based 
on the potential economic benefits of tourism and recreational fishing. 
Under the Magnuson-Stevens Act, NMFS strives to balance the needs of 
recreational and commercial fishing communities while also allowing for 
the opportunity to catch optimum yield. Given that many shark quotas 
are currently not being fully harvested, allowing for limited landings, 
which is also expected to improve compliance and data collection, is 
appropriate. Therefore, based on public comment regarding the species 
that should be allowed, NMFS developed a new preferred alternative, 
Alternative C4. This new preferred alternative is a hybrid of proposed 
Alternative C2 and Alternative C3. Under Alternative C4, NMFS 
establishes a retention limit range of zero to three non-prohibited 
large coastal, small coastal, and/or smoothhound sharks (combined) per 
vessel per trip, with a default retention limit of three sharks per 
vessel per trip. Prohibited sharks and pelagic (including shortfin mako 
and oceanic whitetip sharks), hammerhead, silky, blacknose, and sandbar 
sharks may not be retained under this alternative. This alternative is 
preferred because it would be responsive to public comments and would 
meet management goals by providing increased fishing opportunities to 
harvest sustainably managed sharks at incidental levels while still 
avoiding overharvest of specific species. This alternative is similar 
to Alternatives C2 and C3, with regional retention limits within the 
range discussed for all of the alternatives. Alternative C4 is 
anticipated to have neutral direct ecological impacts to shark stocks 
in the short- and long-term for several reasons. First, the quotas for 
the different shark management groups are not being modified, and 
fishermen would continue to be limited by the established shark quotas 
for these sustainably managed species. The quotas for many of these 
species have not been fully harvested in recent years. Therefore, 
additional retention of species under the large coastal (except 
hammerhead, silky, and sandbar sharks), small coastal (except blacknose 
sharks), and smoothhound shark management groups should not impact the 
sustainability of the stocks. Second, the retention limits in 
Alternative C4 would not likely increase landings to a level that may 
adversely affect shark populations given the limited range and hold 
capacity of the small-scale vessels involved. Additionally, shortfin 
mako and oceanic whitetip sharks, which are both in the pelagic shark 
management group, would not be authorized for retention and would not 
be adversely impacted by this action. Third, this rule is also 
finalizing adaptive management measures (Alternative A3) that would 
allow NMFS to quickly adjust shark retention limits regionally (down to 
zero fish, if necessary) in response to landings information. Fourth, 
NMFS anticipates that allowing the retention of sharks under the HMS 
CCSB permit will not only provide increased fishing opportunities to 
harvest sustainably managed sharks, but also improve catch and landings 
data in the U.S. Caribbean shark fishery as NMFS expects more fishermen 
to acquire the HMS CCSB permit given the ability to retain sharks. 
Increased participation and permitting would likely lead to improved 
data collection, more accurate stock assessments, and better management 
of the U.S. Caribbean shark fishery. Lastly, NMFS would carry out 
extensive outreach and education to fishermen and government agencies 
in the U.S. Caribbean region following implementation of this final 
action to address species identification and compliance concerns.
    Comment 9: Some commenters, including the PR DNER, expressed 
concern that fishermen in the U.S. Caribbean are unable to properly 
identify shark species. These commenters, including the PR DNER, 
suggested that shark identification education is an important priority 
for management.
    Response: NMFS is aware of the difficulty shark fishermen, 
including those in the U.S. Caribbean region, may have in accurately 
identifying shark species, and agrees with the commenters that 
education and outreach is a priority for management. As part of this 
rulemaking, NMFS will aim to improve species identification through 
extensive training, outreach, and education to fishermen and

[[Page 22887]]

territorial partners in the U.S. Caribbean region. Specifically, NMFS 
plans to work with State and territorial agencies as well as the 
Caribbean Fishery Management Council to ensure that outreach and 
education materials on shark identification, safe handling, shark 
fishing regulations, and proper reporting reaches shark fishermen. In 
addition, NMFS intends to make all outreach and educational material 
are available in both English and Spanish. This may include further 
developing educational materials, such as Caribbean HMS identification 
guides and brochures, that will be distributed at locations that 
fishermen frequent, and to individuals that acquire the HMS Commercial 
Caribbean Small Boat permit. NMFS anticipates that the extensive 
education and outreach measures will improve species identification and 
accurate reporting of catches of sharks in the U.S. Caribbean region.
    Comment 10: NMFS received a comment expressing concern about shark 
catch in pupping and nursery areas. The commenter indicated that 
juveniles of threatened and endangered sharks are known to be caught 
incidentally during local small-scale fisheries interactions within 
pupping and nursery areas of coastal areas of Caribbean Islands. The 
commenter stated that shallow mangrove habitats and estuarine areas are 
easily accessible to local net fishermen and anglers from shore. 
However, the number and effort of these gears is unknown due to lack of 
species-specific data on recreational fisheries. The presence of small 
juvenile specimens of multiple shark species (e.g., blacktip, lemon, 
hammerheads, oceanic whitetip, silky, and dusky) in the commercial 
fisheries suggest that U.S. Caribbean waters serve as critical nursery 
habitats for sharks. As such, NMFS should consider the importance of 
the U.S. Caribbean for the sustainability or recovery of the shark 
species and factor this information into the stock assessments. The 
commenter is concerned that human related impacts may limit the 
survival of juvenile sharks, undermining the populations' ability to 
maintain sustainable fisheries.
    Response: NMFS agrees that, based on the limited information 
available, there are likely pupping and nursery areas of sharks found 
within the U.S. Caribbean, and that some juvenile sharks will likely be 
caught by commercial and recreational fishermen. Some of these sharks 
may be threatened species, but there are no endangered shark species 
found within the U.S. Caribbean. Specifically, within the U.S. 
Caribbean, two shark species are listed as threatened under the 
Endangered Species Act (ESA). These species are the Central and 
Southwest Atlantic distinct population segment (DPS) of scalloped 
hammerhead sharks (which is a different distinct population segment 
than that found along the mainland) and oceanic whitetip sharks 
throughout their range. At this time, there are no species of sharks 
listed as endangered in the U.S. Caribbean. As described above under 
Comment 8, NMFS is finalizing a different alternative than proposed. 
Specifically, NMFS is finalizing Alternative C4. Under this 
alternative, neither oceanic whitetip nor scalloped hammerhead sharks 
may be harvested, and NMFS will work to provide education and outreach 
materials to improve shark identification in the area. This action is 
consistent with the results of the 2020 Biological Opinion issued under 
Section 7 of the ESA. On May 15, 2020, NMFS released a Biological 
Opinion for all Atlantic HMS fisheries except pelagic longline, which 
stated that the continued operation of the fisheries analyzed in the 
Biological Opinion (including handgear fisheries) is not likely to 
jeopardize the continued existence of sea turtles, sawfish, Atlantic 
sturgeon, scalloped hammerhead shark (Caribbean and Central Atlantic 
DPS), oceanic whitetip shark, and giant manta ray. NMFS is implementing 
the Reasonable and Prudent Measures and Terms and Conditions of that 
2020 Biological Opinion. This action is not anticipated to affect the 
above-referenced ESA-listed species in any way not previously analyzed 
for existing regulations and there is no new information that would 
alter this conclusion. Furthermore, the Agency does not anticipate any 
increased risks to overfished sharks or their habitats in the region. 
The gears authorized with an HMS Commercial Caribbean Small Boat permit 
in Federal waters are bandit, handline, harpoon, rod and reel, and buoy 
gear (see discussion of the definition of buoy gear in HMS fisheries 
and possible hook limit changes for buoy gear in Caribbean FMC-managed 
fisheries in the response to comment 6). Each of these is a tended gear 
that has low bycatch and bycatch mortality, which allows for quick 
release of shark species while minimizing adverse impact protected 
species, incidentally-caught species, or essential fish habitat. 
Additionally, NMFS believes that allowing for a limited number of 
sharks to be harvested will provide additional information, including 
effort and gear information, that can be used in stock assessments as 
well as improve our understanding of the species and any nursery and 
pupping areas in the U.S. Caribbean.
    Comment 11: One commenter expressed concern that allowing shark 
retention in the U.S. Caribbean could attract fishermen from the 
mainland United States to the region to fish, increasing fishing 
effort.
    Response: Currently, federally permitted commercial shark fishermen 
are able to fish in the U.S. Caribbean region, with the retention 
limits for the directed and smoothhound shark permits being higher than 
those allowed by the HMS Commercial Caribbean Small Boat permit. 
Therefore, NMFS disagrees that the allowance of up to three sharks per 
vessel per trip under the HMS Commercial Caribbean Small Boat permit 
would attract fishermen to the Caribbean and substantially increase 
fishing effort. The final retention limit is a conservative limit that 
is analogous to the lowest retention limit of the existing Federal HMS 
permits authorized for commercial shark fishing both off the mainland 
of the U.S. and in the U.S. Caribbean region. The distance for 
commercial fishermen from the U.S. mainland to travel to the U.S. 
Caribbean is over 900 miles (from Miami to U.S. Caribbean waters off 
the northwest of Puerto Rico) which is a considerable investment in 
time and fuel for any vessel, but especially one that is under 45 feet 
in length. The harvest of three sharks per vessel per trip would likely 
not offset the cost of fuel and therefore would not make a commercial 
fishing trip profitable. In addition, the HMS Commercial Caribbean 
Small Boat permit is valid only in the U.S. Caribbean region on vessels 
that are less than 45 feet long and cannot be held in conjunction with 
any other HMS permit in a calendar year. The HMS Commercial Caribbean 
Small Boat permit also allows fishermen to directly sell their HMS 
catch without possessing a dealer permit, provided that the fishermen 
report the harvest and sale of these fish to their respective 
territorial governments, which will report these data to the NMFS. This 
permit was implemented to provide fishermen in the region a way to 
comply with Federal HMS regulations while taking into account the 
unique and artisanal nature of the local fishery. It is unlikely that 
the conservative trip limit in this rulemaking would attract more 
fishermen from the mainland United States to the U.S. Caribbean region 
given the higher trip limits and vessel capacity other commercial shark 
permits afford them outside of the U.S. Caribbean region.

[[Page 22888]]

D. Other

    Comment 12: Multiple comments were submitted expressing concern 
about enforcement of swordfish and shark fishing regulations in the 
U.S. Caribbean. Commenters stated that there are not enough enforcement 
officers to monitor all fishing areas and ports. Some commenters, 
including PR DNER, commented that NMFS should focus on enforcement of 
existing regulations and outreach before implementing changes to 
authorized species and increasing retention limits under the HMS 
Commercial Caribbean Small Boat permit.
    Response: NMFS and the U.S. Coast Guard continue to enhance 
enforcement resources in the U.S. Caribbean and to enforce all Federal 
fisheries regulations with assistance from territorial governments 
through joint enforcement agreements. NMFS also provides outreach and 
training as part of those agreements. NMFS will provide targeted 
outreach and training on the measures of this final action to ensure 
compliance by fishermen. NMFS believes that one of the benefits of the 
preferred alternatives, including the increased swordfish retention 
limit and the ability to retain some shark species, will be an increase 
in the number of HMS Commercial Caribbean Small Boat permit holders. As 
a condition of the permit, fishermen will be required to know and 
comply with Federal regulations.
    Comment 13: Comments were submitted supporting separate shark 
quotas for the U.S. Caribbean instead of combining the quota with the 
Gulf of Mexico region.
    Response: These comments are outside the scope of this rulemaking 
because the purpose of this rulemaking is to modify the swordfish and 
shark retention limits for certain commercial swordfish and shark 
permits. The quotas and general management measures were established in 
the final rules to implement Amendment 2 to the 2006 Consolidated HMS 
FMP (73 FR 35778, June 24, 2008; corrected on 73 FR 40658; July 15, 
2008), Amendment 5a to the 2006 Consolidated HMS FMP (78 FR 40318; July 
3, 2013), Amendment 6 to the 2006 Consolidated HMS FMP (80 FR 50073; 
August 18, 2015), and Amendment 9 to the 2006 Consolidated HMS FMP (80 
FR 73128; November 24, 2015), and Amendment 5b to the 2006 Consolidated 
HMS FMP (21 FR 14678).
    Comment 14: One commenter suggested including mechanisms to ensure 
that sharks harvested in the U.S. Caribbean region will be contained in 
the local markets or for personal consumption. Other commenters stated 
that there is little to no market for shark meat in the U.S. Caribbean 
region and that allowing the retention of sharks under the HMS 
Commercial Caribbean Small Boat permit could promote the clandestine 
export of shark fins.
    Response: During the rulemaking process for Amendment 4 (77 FR 
59842, October 1, 2012) to the 2006 Consolidated HMS Fishery Management 
Plan, NMFS created the Commercial Caribbean Small Boat permit. At the 
time, NMFS recognized the need for a unique Caribbean permit in part 
because of the smaller vessels, shorter trips, limited profit margins, 
and high local consumption of catches associated with Caribbean 
commercial fisheries. Currently, NMFS does not believe that large 
amounts of sharks and shark products would be sold outside of local 
U.S. Caribbean markets because the retention limit is too low for 
vessels to make a profit shipping and selling the sharks outside of the 
U.S. Caribbean. Based on comments received from the HMS Advisory Panel, 
NMFS believes that there are sharks being sold in the U.S. Caribbean, 
and therefore, there is a local market for shark meat. Increasing 
commercial shark fishing opportunities in the U.S. Caribbean in a 
limited manner under this action could expand the market for 
sustainably harvested shark meat in the region. With regard to the 
export of shark fins, trade of shark fins that are harvested from 
sharks legally landed with their fins attached is legal in the United 
States and its Caribbean territories, and can contribute to supporting 
a sustainable shark fishing industry. Although no retention of sharks 
is currently allowed under the HMS Commercial Caribbean Small Boat 
permit, vessels with other commercial shark permits can currently 
retain sharks in the U.S. Caribbean and can legally sell their fins if 
they are sold to a federally permitted dealer. Increasing the number of 
sharks that can be legally harvested by HMS Commercial Caribbean Small 
Boat permit holders is not expected to correspond with a rise in 
illegal harvest of sharks or promotion of a clandestine fin trade. 
Rather, allowing the legal retention of sharks by HMS Commercial 
Caribbean Small Boat permit holders should provide for more legal 
markets of shark products, which is expected to incentivize fishermen 
to obtain the HMS Commercial Caribbean Small Boat permit and ultimately 
correspond with additional data to continue managing those species 
sustainably, consistent with the Magnuson-Stevens Act.
    Comment 15: One commenter expressed concern about contaminants in 
shark flesh and stated that research on the subject has not been 
performed in Puerto Rican waters.
    Response: The United States Food and Drug Administration's (FDA) 
Hazard, Analysis, and Critical Control Points (HACCP) published 
regulations (December 18; 1995; 60 FR 65197) that mandate the 
application of the HACCP principles to ensure the safe and sanitary 
processing of seafood products. Dealers are responsible for ensuring 
products they purchase and sell are in compliance with FDA HACCP 
regulations.
    Comment 16: One commenter stated that one of the outcomes of the 
Caribbean Challenge Initiative summit in the British Virgin Islands in 
May 2013, which included the participation of the Secretary of the PR 
DNER was a Communiqu[eacute] emphasizing the urgent need to create 
protection for sharks and rays across the entire Caribbean Region. As a 
result, PR DNER agreed to protect sharks and rays in PR waters. 
Therefore, promoting a shark fishery is contrary to Puerto Rico's 
policy.
    Response: Federal conservation and management measures have been 
and continue to be in place in Federal waters of the U.S. Caribbean. 
These measures, which will continue under this action, have resulted in 
sustainable managed shark fisheries. As a condition of their permits, 
federally permitted fishermen must abide by Federal regulations 
wherever they fish, including state waters, unless the state (or 
territory in this case) has more restrictive regulations (see 50 CFR 
635.4(a)(10)). NMFS works closely with the states and territories to 
ensure consistent regulations for shark fishing, to the extent 
practicable. In some cases, the regulations are not consistent. As 
such, federally permitted fishermen operating from and/or landing fish 
in Puerto Rico or the U.S. Virgin Islands must abide by any territorial 
commercial shark fishing regulations that are more restrictive. It is 
up to the fishermen to understand the regulations that are applicable 
to their situation.
    Additionally, this rule does not require Puerto Rico to promote a 
shark fishery. Rather, one of the purposes of this rulemaking is to 
adjust the shark retention limits of the existing HMS Commercial 
Caribbean Small Boat permit to better provide fishing opportunities for 
shark fishermen to harvest sustainably managed shark species. This 
permit is one of several existing Federal commercial shark permits that 
allow the retention of sharks in Federal waters of the United States, 
including the U.S. Caribbean region.

[[Page 22889]]

    Comment 17: The PR DNER submitted a comment stating that shark, 
tuna, and swordfish in territorial waters are managed under Federal HMS 
regulations, and that commercial fishermen targeting or retaining these 
species must hold a Federal HMS permit. However, few commercial 
fishermen in Puerto Rico comply with this requirement, thus, PR DNER 
believes that data used in developing this action may be incomplete, 
and there is no evidence that an increase in the swordfish and shark 
retention limit is needed. In addition, PR DNER stated that data 
collection requirements should be enforced before increasing the 
swordfish and shark retention limits. Other commenters, including PR 
DNER, stated that additional research on U.S. Caribbean shark species 
is needed, and that HMS landings should be closely tracked. Several 
commenters stated that the Agency should carry out Caribbean-specific 
stock assessments for all sharks authorized for retention under the HMS 
Commercial Caribbean Small Boat permit. Some commenters specifically 
noted that stock status information is needed for smoothhound sharks in 
the Caribbean. Although the recent smoothhound shark stock assessments 
found that the stocks are healthy, not overfished, and with no 
overfishing occurring, the commenter stated that data from the U.S. 
Caribbean was not incorporated into the stock assessment. Two species 
of smoothhound sharks have been described in the U.S. Caribbean, but 
the assessment failed to recognize the presence of a different 
subspecies (Mustelus canis insularis Heemstra, 1997) that occurs in the 
region and may be the bulk of the incidental catches.
    Response: NMFS agrees that reporting of HMS landings in the region 
could continue to be improved. NMFS specifically implemented the HMS 
Commercial Caribbean Small Boat permit in 2012 (77 FR 59842; October 1, 
2012) in part to improve the Agency's capability to monitor and 
sustainably manage the fishery. The HMS Commercial Caribbean Small Boat 
permit provides several advantages for U.S. Caribbean fishermen, 
including the ability to act as a dealer and sell catch directly to 
consumers and restaurants, thus better meeting the type of markets that 
exist in the U.S. Caribbean. Since 2012, the reporting of landings of 
HMS in the territorial trip ticket programs has improved; however, 
fishermen seem to remain reluctant to obtain the permit. NMFS believes 
that one benefit of the preferred alternatives, including the increased 
swordfish retention limit and the ability to retain some shark species 
under the HMS Commercial Caribbean Small Boat permit, will be an 
increase in the number of HMS Commercial Caribbean Small Boat permit 
holders because the authorized species and retention limits may make 
the permit more desirable and may more closely match the existing 
fishing practices in the region. If more fishermen in the region obtain 
the permit and comply with the reporting requirements, NMFS and 
territorial governments would get better, more complete landings 
information. For this reason, the Agency disagrees with the assertion 
that reporting compliance must be addressed before changes to the 
retention limits are made. Instead, changes to the retention limit 
would make the HMS Commercial Caribbean Small Boat permit more 
desirable since it increases the potential profitability and 
flexibility of each trip. This is expected to increase the adoption of 
the HMS Commercial Caribbean Small Boat permit, leading to increased 
reporting compliance, and increased HMS fishery data from the region.
    Regarding the need for additional research and Caribbean-specific 
stock assessment for sharks authorized for retention under the HMS 
Commercial Caribbean Small Boat permit, management of the Atlantic 
shark fisheries is based on the best available science to achieve 
optimum yield while preventing overfishing and to rebuild overfished 
shark stocks. Domestic shark stock assessments are generally conducted 
through the Southeast Data, Assessment, and Review (SEDAR) process, in 
which NMFS participates. This process is also used by the South 
Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils and 
is designed to provide transparency throughout the stock assessment 
process. Additionally, there are some shark stocks that are assessed 
internationally via the process established by ICCAT. In all cases, 
NMFS ensures the data and models used are appropriate, all sources of 
mortality are considered, and that the end result constitutes the best 
available science, consistent with National Standard 2 and other 
requirements. To that end, this final action is allowing limited 
retention of non-prohibited sharks under the HMS Commercial Caribbean 
Small Boat permit, with shark landings being carefully monitored 
through the HMS e-Dealer reporting system and via the existing 
territorial reporting system to ensure timely quota monitoring. NMFS 
anticipates, as mentioned above, that allowing the retention of sharks 
under the HMS Commercial Caribbean Small Boat permit will not only 
provide increased fishing opportunities to harvest sustainably managed 
sharks, but also improve catch and landings data in the U.S. Caribbean 
shark fisheries as NMFS expects more fishermen to acquire the HMS 
Commercial Caribbean Small Boat permit given the ability to retain 
sharks. Increased participation and permitting is expected to lead to 
improved data collection, more accurate stock assessments, and better 
management of the U.S. Caribbean shark fishery.
    With regard to the concern on stock status information needed for 
smoothhound sharks in the Caribbean, the stocks of most Atlantic HMS 
span broad areas both within and beyond the Caribbean and regional 
stock assessments are not appropriate in such cases. A few shark 
species are found mainly in the Caribbean and in such cases regional 
stock assessments may be appropriate and are conducted accordingly as 
data are available. However, as is the case of species of smoothhound 
sharks, NMFS has only limited data for some species, which requires 
management to be based on species within a complex of species. Because 
of the overlap in range between the different species and the extreme 
difficulty in distinguishing species of smoothhound sharks from one 
another without genetic analysis to distinguish between the species, 
NMFS grouped all smoothhound species (all Mustelus species that are 
currently known and those that may be discovered within the U.S. EEZ of 
the Atlantic, Gulf of Mexico, and Caribbean) together within the term 
``smoothhound sharks'' for management purposes and manages them as a 
complex and one stock. Thus, the term ``smoothhound sharks'' 
collectively refers to smooth dogfish (Mustelus canis), Florida 
smoothhound (M. norrisi), Gulf smoothhound (M. sinusmexicanus), small 
eye smoothhound (M. higmani), and any other Mustelus species that might 
be found in U.S. waters of the Atlantic, Gulf of Mexico, and/or 
Caribbean. Any Mustelus shark species retained by commercial fishermen 
in the U.S. Caribbean region under the new HMS Commercial Caribbean 
Small Boat shark retention limits in this final action will continue to 
be counted towards the smoothhound shark complex quota, which in turn 
will help inform future stock assessments.

Changes From the Proposed Rule

    This section explains the changes in the regulatory text from the 
proposed rule to the final rule. These changes

[[Page 22890]]

were made in response to public comment.
    1. Section 635.24(b)(3), (b)(4) introductory text, and (b)(4)(iii). 
Modification of the Swordfish Retention Limit.
    In the proposed rule, NMFS proposed a default retention limit of 6 
swordfish per vessel per trip for all regions except the Florida 
Swordfish Management Area (which would retain the default retention 
limit of 0 swordfish per vessel per trip) and a retention limit of 0-6 
swordfish per vessel per trip for all permits. After considering public 
comment, NMFS is instead finalizing a default retention limit of 18 
swordfish per vessel per trip for all regions except the Florida 
Swordfish Management Area (which would retain the default retention 
limit of 0 swordfish per vessel per trip) and a retention limit of 0-18 
swordfish per vessel per trip for all permits. NMFS feels this action 
is appropriate because it will give fishermen the greatest opportunity 
to harvest the North Atlantic swordfish quota and will not create 
differences in retention limits among different permits in the U.S. 
Caribbean. Public comments indicated that Swordfish General Commercial 
permit holders and HMS Commercial Caribbean Small Boat permit holders 
would benefit from a retention limit range of 0 to 18 swordfish per 
vessel per trip, and that a default retention limit of 18 swordfish per 
trip was appropriate for the U.S. Caribbean region. As described above 
in the response to Comment 3, this change in the retention limit was 
based on the following five considerations--the goal of this rulemaking 
to provide consistency in swordfish retention limits among the three 
open access swordfish handgear permits, the healthy status of the North 
Atlantic swordfish stock, the potential for additional fishing 
opportunities because trips that target swordfish farther offshore will 
now be profitable, an increased opportunity for more fishermen in the 
Caribbean region to obtain the HMS Commercial Caribbean Small Boat 
permit and thus provide better, more complete landings information, and 
that this rule is also finalizing adaptive management measures that 
would allow NMFS to quickly adjust swordfish retention limits 
regionally (down to zero fish, if necessary) in response to landings 
information.
    2. Section 635.24(a)(4)(iv). Modification of the Shark Retention 
Limit.
    In the proposed rule, NMFS proposed a default retention limit of 
three smoothhound and/or tiger sharks (combined) per vessel per trip 
for any vessel that holds the HMS Commercial Caribbean Small Boat 
permit. After considering public comment, NMFS is finalizing a default 
retention limit of three total non-prohibited smoothhound, small 
coastal sharks (other than blacknose), or large coastal (other than 
hammerhead, silky, or sandbar) sharks (combined) per vessel per trip 
for any vessel that holds a HMS Commercial Caribbean Small Boat permit. 
Specifically, HMS Commercial Caribbean Small Boat permit holders could 
retain and sell tiger, blacktip, bull, spinner, lemon, Atlantic 
sharpnose, finetooth, bonnethead, and smoothhound sharks. This change 
is responsive to public comments, and meets management goals by 
providing increased fishing opportunities to harvest sustainably 
managed sharks at incidental levels while still avoiding overharvest of 
specific species. As described above in the response to Comment 8, in 
making this change, NMFS considered several factors including that 
fishermen would continue to be limited by the established and currently 
underutilized shark quotas, that the final retention limits would not 
likely increase landings to a level that may adversely affect shark 
populations given the limited range and hold capacity of the small-
scale vessels involved, that this rule is also finalizing adaptive 
management measures that would allow NMFS to quickly adjust shark 
retention limits regionally (down to zero fish, if necessary) in 
response to landings information, and that providing additional 
opportunities to retain sharks could improve catch and landings data in 
the U.S. Caribbean shark fishery if more fishermen acquire the HMS 
Commercial Caribbean Small Boat permit. Lastly, as part of the final 
action, NMFS intends to conduct extensive outreach and education to 
fishermen and government agencies in the U.S. Caribbean region to 
address species identification and compliance concerns.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its 
amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Summary of the Final Regulatory Flexibility Analysis

    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 is available from NMFS (see ADDRESSES). A summary 
is provided below.
A. Statement of the Need for and Objectives of This Final Rule
    Section 604(a)(1) of the RFA requires Agencies to state the need 
for and objective of, the final action.
    The objectives of this rulemaking are to provide consistency 
between the three open access swordfish handgear permits, all of which 
allow similar gears to be used within U.S. Atlantic and Caribbean 
waters, and to provide increased fishing opportunities for sharks in 
the U.S. Caribbean. Furthermore, this final action would increase 
administrative efficiencies and increase management flexibility by 
managing the open access swordfish commercial permits similarly.
B. A Summary of the Significant Issues Raised by the Public Comments in 
Response to the Initial Regulatory Flexibility Analysis, a Summary of 
the Agency's Assessment of Such Issues, and a Statement of Any Changes 
Made in the Rule as a Result of Such Comments
    Section 604(a)(2) requires that a FRFA include a summary of 
significant issues raised by public comment in response to the IRFA and 
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.
    During the public comment period, commenters requested NMFS 
implement a higher swordfish retention limit given the health of the 
stock, the availability of the resource, and the capacity and need of 
some permit holders to transport more than six swordfish when traveling 
further offshore to fishing grounds. Based on public comment, NMFS now 
prefers Alternative B4, instead of the preferred alternative in the 
Draft EA, Alternative B2, as this alternative will provide consistency 
in swordfish retention limits among the three open access swordfish 
handgear permits and a higher retention limit than the one proposed, 
which would provide additional fishing opportunities because trips that 
target swordfish farther offshore will be profitable under the higher 
retention limit.
    During the public comment period, some commenters expressed support 
for the preferred alternative in the Draft EA,

[[Page 22891]]

Alternative C2, but also argued that smoothhound sharks are only caught 
incidentally and are not a target species. As a result, these 
commenters were concerned that Alternative C2 would place any shark 
meat demand solely on tiger sharks. The commenters also felt 
Alternative C2 could potentially result in fishermen discarding sharks 
until tiger or smoothhound sharks were landed, potentially increasing 
fishing effort, discards, and shark mortality. The commenters also 
opposed the retention of any prohibited species along with some 
specific species, including pelagic and hammerhead sharks, given 
concerns regarding those species' vulnerability to fishing pressure, 
stock status, and effects on reef systems and ecotourism. Some 
commenters indicated that NMFS should combine Alternative C2 with 
Alternative C3 to allow for fishing opportunities to harvest 
sustainably managed sharks, with a retention limit not to exceed six 
sharks given the capacity and size of the vessels, while avoiding 
overharvest of specific shark species, including pelagic and hammerhead 
sharks. Commenters also requested NMFS provide extensive outreach and 
education to fishermen and government agencies on species 
identification and permit requirements. After considering public 
comment, NMFS created a new alternative, Alternative C4 to address the 
issues raised by the public.
    NMFS did not receive any comments from the Chief Counsel for 
Advocacy of the Small Business Administration in response to the 
proposed rule or the IRFA. All of the comments and responses to the 
comments are summarized in Appendix I of the Final EA.
C. Description and Estimate of the Number of Small Entities to Which 
the Final Rule Would Apply
    Section 604(a)(4) of the Regulatory Flexibility Act requires 
Agencies to provide an estimate of the number of small entities to 
which the rule would apply. The Small Business Administration (SBA) has 
established size criteria for all major industry sectors in the United 
States, including fish harvesters. Provision is made under SBA's 
regulations for an agency to develop its own industry-specific size 
standards after consultation with Advocacy and an opportunity for 
public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may 
establish size standards that differ from those established by the SBA 
Office of Size Standards, but only for use by NMFS and only for the 
purpose of conducting an analysis of economic effects in fulfillment of 
the agency's obligations under the RFA. To utilize this provision, NMFS 
must publish such size standards in the Federal Register (FR), which 
NMFS did on December 29, 2015 (80 FR 81194, December 29, 2015). In this 
final rule effective on July 1, 2016, NMFS established a small business 
size standard of $11 million in annual gross receipts for all 
businesses in the commercial fishing industry (NAICS 11411) for RFA 
compliance purposes. NMFS considers all HMS permit holders to be small 
entities because they had average annual receipts of less than $11 
million for commercial fishing.
    As discussed in Section 6.2.1 of the Final EA, the final rule would 
apply to the 665 Swordfish General Commercial permit holders, 30 HMS 
Commercial Caribbean Small Boat permit holders, and 3,839 HMS Charter/
Headboat permit holders with a commercial sale endorsement. Active 
permit holders are defined as those with valid permits that landed one 
swordfish based on HMS electronic dealer reports. Of those 665 
Swordfish General Commercial permit holders, 19 landed swordfish in 
2020. Of 30 HMS Commercial Caribbean Small Boat permit holders, two 
landed swordfish in 2020. Of the 3,839 HMS Charter/Headboat vessels, 23 
had an active commercial sale endorsement, and landed swordfish in 
2020. NMFS has determined that the final rule would not likely affect 
any small governmental jurisdictions. More information regarding the 
description of the fisheries affected, and the categories and number of 
permit holders can be found in Chapter 6 of the Final EA.
D. 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 Will Be Subject to the Requirements of 
the Report or Record
    Section 604(a)(5) of the RFA requires Agencies to describe any new 
reporting, record-keeping and other compliance requirements. The action 
does not contain any new collection of information, reporting, or 
record-keeping requirements.
E. Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes
    Under section 604(a)(6) of the RFA requires Agencies in the FRFA to 
describe the steps 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 why 
each one of the other significant alternatives to the rule considered 
by the agency which affect the impact on small entities was rejected. 
These impacts are discussed below and in Chapters 4 and 6 of the Final 
EA.
    The alternatives considered and analyzed are described below. The 
FRFA assumes that each vessel will have similar catch and gross 
revenues to show the relative impact of the final action on vessels.
    Alternative A1 would maintain the current ability to adjust the 
regional swordfish retention limits for vessels possessing the HMS 
Commercial Caribbean Small Boat permit only through framework 
adjustment procedures. See 50 CFR 635.34(b). This alternative would not 
result in any change in economic impacts, and would have neutral 
economic impacts on HMS permit holders.
    Alternative A2, the preferred alternative, would provide NMFS the 
ability to adjust the swordfish retention limit for the HMS Commercial 
Caribbean Small Boat fishery on an inseason basis, as needed. NMFS 
already has the ability to adjust the swordfish retention limits under 
the Swordfish General Commercial and HMS Charter/Headboat permits. 
Under this alternative, NMFS would have more flexibility in the 
regulations to be more responsive to the changes needed in the 
swordfish fishery within the fishing season. The alternative would 
provide for a new regulatory process that would not change the actual 
retention limits. Therefore, this alternative would have neutral 
economic impacts to HMS permit holders.
    Alternative A3, the preferred alternative, would provide NMFS the 
ability to adjust the shark retention limit for the HMS Commercial 
Caribbean Small Boat fishery on an inseason basis, as needed. NMFS 
already has the ability to adjust the shark retention limits under 
shark inseason trip limit adjustment authorization criteria for 
commercial shark fishermen. Under this alternative, NMFS would have 
more flexibility in the regulations to be more responsive to the 
changes needed in the shark fishery within the fishing season. The 
alternative would provide for a new regulatory process that would not 
change the actual retention limits. Therefore, this alternative would 
have neutral economic impacts to HMS permit holders.

[[Page 22892]]

    Under Alternative B1, the No Action alternative, NMFS would 
maintain the existing swordfish retention limits within the swordfish 
management regions for all vessels possessing an HMS Commercial 
Caribbean Small Boat permit, a Swordfish General Commercial permit, or 
an HMS Charter/Headboat permit on a commercial trip. For vessels 
possessing a Swordfish General Commercial permit or vessels with an HMS 
Charter/Headboat permit on a commercial trip, the current range of 
swordfish retention limits is zero to six swordfish per vessel per trip 
for all regions with the default retention limits (see Table 4.1 of the 
Final EA). For the HMS Commercial Caribbean Small Boat permit, the 
retention limit is two swordfish per vessel per trip. As discussed in 
Chapter 3 of the Final EA, a single swordfish is estimated to be worth 
$336.72 (ex-vessel), on average, whereas six swordfish are estimated to 
be worth $2,020.32 (ex-vessel). Under this alternative, the potential 
gross revenue per trip for each HMS Commercial Caribbean Small Boat 
vessel landing the trip limit would be approximately $673.44 based on 
the average ex-vessel price of swordfish. Similarly, the potential 
gross revenue per trip for vessels possessing a Swordfish General 
Commercial permit or HMS Charter/Headboat permit on a commercial trip 
fishing in either the U.S. Caribbean, Northwest Atlantic or Gulf of 
Mexico and landing the full trip limit would be $2,020.32, with gross 
revenue from swordfish ranging from either $673.44662 under a two 
swordfish limit or $1,010.16 under a three swordfish limit to $2,020.32 
under a six swordfish limit. Alternative B1 would result in neutral 
economic impacts in the short- and long-term since there is no change 
in the management structure of the swordfish fishery.
    Under Alternative B2, NMFS would maintain the default swordfish 
retention limit of zero swordfish per vessel per trip for the Florida 
Management Region and establish a default swordfish retention limit of 
six swordfish per vessel per trip for all other regions and for HMS 
Commercial Caribbean Small Boat and Swordfish General Commercial permit 
holders, and HMS Charter/Headboat permit holders with a commercial sale 
endorsement. For these permit holders in all regions, the retention 
limit range would be zero to six swordfish per vessel per trip. Under 
this alternative, the potential gross revenue per trip for each vessel 
that has landed the maximum allowed trip limit under either of the 
three swordfish commercial swordfish permits (HMS Commercial Caribbean 
Small Boat permit, Swordfish General Commercial permit, and HMS 
Charter/Headboat permit, on a commercial trip) and within the U.S. 
Caribbean, Northwest Atlantic, and Gulf of Mexico would be $2,020.32 
per vessel per trip (Table 4.1 of the Final EA). For example, for a 
vessel making ten trips per year and retaining the six swordfish limit 
each trip, the annual gross revenue derived from swordfish would 
generate up to $20,203.20. By having a higher default trip limit for 
swordfish, this alternative would continue to provide a seasonal, or 
secondary, fishery for most participants as well as new economic 
benefits to some fishermen as well as fishing tackle manufacturers and 
suppliers, bait suppliers, fuel providers, and swordfish dealers. 
Alternative B2 would likely result in overall neutral economic impacts 
in the short- and long-term. NMFS has increased the swordfish retention 
limit in the Northwest Atlantic and Gulf of Mexico, and the U.S. 
Caribbean regions to six every year since the implementation of the 
Swordfish General Commercial permit, thus any economic impact would be 
neutral for Swordfish General Commercial permit holders and HMS 
Charter/Headboat permit holders with a commercial sale endorsement. For 
the HMS Commercial Caribbean Small Boat permit holders, there would be 
a minor increase in revenue, but this minor increase would not have 
significant economic impacts for the fishery overall.
    Under Alternative B3, the retention limit range would be increased 
for Swordfish General Commercial permit holders and HMS Charter/
Headboat permit holders with a commercial sale endorsement, from zero 
to six swordfish per vessel per trip to 0-18 swordfish per vessel per 
trip for all regions with the same default retention limits as 
Alternative B2. For the HMS Commercial Caribbean Small Boat permit, 
NMFS would establish a swordfish retention limit range of 0-18 
swordfish per vessel per trip with a default retention limit of six 
swordfish per vessel per trip. Similar to Alternative B2, this 
alternative would establish a default swordfish retention limit of six 
swordfish per vessel per trip for the HMS Commercial Caribbean Small 
Boat permit holder within the U.S. Caribbean region. However, unlike 
Alternative B2, this alternative would increase the default swordfish 
retention limit from 6 swordfish per vessel per trip to 18 swordfish 
per vessel per trip for vessels possessing a Swordfish General 
Commercial permit, or vessels with an HMS Charter/Headboat permit with 
a commercial sale endorsement within the Northwest Atlantic, Gulf of 
Mexico, and the U.S. Caribbean swordfish management regions. The 
default swordfish retention trip limit for the Florida Swordfish 
Management Area would remain at zero. Under this alternative, the 
potential gross revenue for each vessel that has landed the maximum 
allowed trip limit under an HMS Commercial Caribbean Small Boat permit 
within the U.S. Caribbean region would be $2,020.32 per vessel per trip 
with gross revenue per trip from swordfish ranging from $2,020.32 to 
$6,060.96 under a 6 and 18 swordfish limit, respectively (Table 4.1 of 
the Final EA). Similarly, the potential gross revenue per trip for 
vessels possessing a Swordfish General Commercial permit or vessels 
with an HMS Charter/Headboat permit on a commercial trip fishing in 
either the U.S. Caribbean, Northwest Atlantic or Gulf of Mexico 
swordfish management regions retaining the maximum allowed limit on 
each trip would be $6,060.96 per vessel per trip (Table 4.1 of the 
Final EA). For example, for a vessel making ten trips per year and 
retaining the maximum allowable limit (i.e., an 18 swordfish retention 
limit) each trip, the annual gross revenue derived from swordfish would 
generate up to $60,609.60. By having a higher default trip limit for 
swordfish, this alternative would continue to provide a seasonal, or 
secondary, fishery for most participants as well as new economic 
benefits to some fishermen as well as fishing tackle manufacturers and 
suppliers, bait suppliers, fuel providers, and swordfish dealers. 
Alternative B3 would likely result in minor beneficial direct economic 
impacts on HMS Caribbean Commercial Small Boat permit holders, 
Swordfish General Commercial permit holders or HMS Charter/Headboat 
permit holders with a commercial sale endorsement in the short- and 
long-term since the retention limit is set above the default limit for 
all swordfish management region, resulting in fishermen potentially 
realizing higher trip revenues since fishermen would have more 
swordfish to sell.
    Under Alternative B4, the preferred alternative, NMFS would 
increase the retention limit range to 0-18 swordfish per vessel per 
trip for all regions (i.e., Florida Swordfish Management area, and the 
U.S. Caribbean, the Gulf of Mexico, and the Northwest Atlantic regions) 
for all three swordfish commercial permits. The default swordfish 
retention limit for these permit holders in all regions would be

[[Page 22893]]

set at 18 swordfish per vessel per trip, except for the Florida 
Swordfish Management Area, which would have a default swordfish 
retention limit of zero. As noted above, Alternative B3 would make the 
same modifications, but with a lower (six swordfish) default retention 
limit for the HMS Commercial Caribbean Small Boat permit within the 
U.S. Caribbean region. Similar to Alternative B3, the potential gross 
revenue per trip for each vessel that has landed the maximum allowed 
trip limit (i.e., an 18 swordfish retention limit) with an HMS 
Commercial Caribbean Small Boat permit, a Swordfish General Commercial 
permit, or a vessel with an HMS Charter/Headboat permit on a commercial 
trip fishing in either the U.S. Caribbean, the Northwest Atlantic or 
the Gulf of Mexico swordfish management regions would be $6,060.96 
(Table 4.1 of the Final EA). For example, for a vessel making ten trips 
per year and retaining the maximum allowable limit (i.e., an 18 
swordfish retention limit) each trip, the annual gross revenue derived 
from swordfish would generate up to $60,609.60. Similar to Alternative 
B3, by having a higher default trip limit for swordfish, this 
alternative would continue to provide a seasonal, or secondary, fishery 
for most participants. Increasing the retention limit above the default 
limit for all swordfish management regions would realize higher trip 
revenues since fishermen would have more swordfish to sell. Alternative 
B4 would likely result in minor beneficial direct economic impacts on 
HMS Commercial Caribbean Small Boat permit holders, Swordfish General 
Commercial permit holders or HMS Charter/Headboat permit holders with a 
commercial sale endorsement in the short- and long-term since the 
retention limit is set above the default limit for all swordfish 
management regions, resulting in fishermen potentially realizing higher 
trip revenues since fishermen would have more swordfish to sell.
    Under Alternative C1, the No Action alternative, NMFS would 
maintain the current retention limit of zero sharks per vessel per trip 
for vessels issued an HMS Commercial Caribbean Small Boat permit. Thus, 
this alternative would result in neutral direct economic impacts to HMS 
Commercial Caribbean Small Boat permit holder in the short- and long-
term. However, the No Action alternative would maintain management 
measures that may not be addressing multiple requests (see Chapter 1 of 
the Final EA) by commercial shark fishermen to land a limited number of 
sharks, restricting NMFS' ability to provide additional fishing 
opportunities to fishermen when other factors, such as availability of 
fish on the grounds and available quota, support such an increase.
    Under Alternative C2, NMFS would establish a default shark 
retention limit of three smoothhound and/or tiger sharks (combined) per 
vessel per trip for the HMS Commercial Caribbean Small Boat permit 
holders. The retention limit range would be zero to three smoothhound 
and/or tiger sharks (combined) per vessel per trip. The retention of 
any other shark species would not be allowed under this alternative. 
Table 4.3 in the Final EA summarizes the potential increase in annual 
ex-vessel revenue based on average weight and price data of smoothhound 
and tiger sharks. If a fisherman landed the maximum trip limit, with 
only tiger sharks being caught, and takes two trips per month (24 trips 
per year), then the annual revenue per vessel associated with this 
activity would be $5,067. If the vessel landed the full trip limit and 
conducted two trips per month (24 trips per year), with only 
smoothhound sharks being caught, then the annual revenue per vessel 
would be $835. Because the Agency would have the authority to adjust 
the shark retention limit from zero to three, the annual ex-vessel 
revenue estimates could vary from $0 (under a zero fish limit) to as 
much as $835 to $5,067, depending on the species composition of the 
catch. This minor increase in per trip and annual revenue would result 
in neutral economic impacts in the short- and long-term to the HMS 
Commercial Caribbean Small Boat permit holders because any potential 
increase would be relatively minor.
    Under Alternative C3, NMFS would establish a default retention 
limit of six non-prohibited large coastal, small coastal, pelagic, and/
or smoothhound sharks (combined) per vessel per trip for HMS Commercial 
Caribbean Small Boat permit holders. The retention limit range would be 
zero to six for non-prohibited large coastal, small coastal, pelagic, 
and smoothhound sharks (combined) per vessel per trip. Table 4.4 in the 
Final EA summarizes the potential increase in annual ex-vessel revenue 
based on average weight and price data of non-prohibited large coastal, 
small coastal, pelagic, and smoothhound sharks. If a fisherman landed 
the maximum trip limit, with only large coastal sharks being caught, 
and takes two trips per month (24 trips per year), then the annual 
revenue per vessel associated with this activity would be $10,135 
(Table 4.4 in the Final EA). Assuming a successful trip and two trips 
per month, the annual revenue per vessel associated with fishermen 
landing the full trip limit of either, small coastal, pelagic or 
smoothhound sharks would be $969, $12,817, and $1,669, respectively. 
Because the Agency would have the authority to adjust the shark 
retention limit from zero to six, the annual ex-vessel revenue 
estimates could vary from $0 (under a zero fish limit) to as much as 
$969 to $12,817, depending on the species composition of the catch. 
This minor increase in per trip and annual revenue would result in 
neutral economic impacts to the HMS Commercial Caribbean Small Boat 
permit holders in the short- and long-term because any potential 
increase would be relatively minor.
    Under Alternative C4, the preferred alternative, NMFS would 
establish a retention limit range of zero to three non-prohibited large 
coastal, small coastal, and/or smoothhound sharks (combined) per vessel 
per trip, with a default retention limit of three sharks per vessel per 
trip. The retention of pelagic, hammerhead, silky, blacknose, sandbar, 
and prohibited sharks is not allowed under this alternative. Table 4.5 
in the Final EA summarizes the potential increase in annual ex-vessel 
revenue based on average weight and price data of non-prohibited large 
coastal, small coastal, and smoothhound sharks. Assuming a successful 
trip and two trips per month (24 trips per year), the annual revenue 
per vessel associated with fishermen landing the full trip limit of 
either non-prohibited large coastal, small coastal, or smoothhound 
sharks would be $5,067, $484, and $835 respectively. Because the Agency 
would have the authority to adjust the shark retention limit from 0 to 
three, the annual ex-vessel revenue estimates could vary from $0 (under 
a 0 fish limit) to as much as $484 to $5,067, depending on the species 
composition of the catch. This minor increase in per trip, and annual 
revenue would result in neutral direct socioeconomic impacts in the 
short- and long-term to the HMS Commercial Caribbean Small Boat permit 
holders because any potential increase would be relatively minor.
    At the proposed rule stage, NMFS preferred Alternative C2, limiting 
the harvest to up to three tiger and/or smoothhound shark (combined) 
per vessel per trip for HMS CCSB permit holders. During the public 
comment period, some commenters expressed support for Alternative C2, 
but also argued that smoothhound sharks are only caught incidentally 
and are not a

[[Page 22894]]

target species. As a result, these commenters were concerned that 
Alternative C2 would place any shark meat demand solely on tiger 
sharks. The commenters also felt Alternative C2 could potentially 
result in fishermen discarding sharks until tiger or smoothhound sharks 
were landed, potentially increasing fishing effort, discards, and shark 
mortality. The commenters also opposed the retention of any prohibited 
species along with some specific species, including pelagic and 
hammerhead sharks, given concerns regarding those species' 
vulnerability to fishing pressure, stock status, and effects on reef 
systems and ecotourism. Some commenters indicated that NMFS should 
combine Alternative C2 with Alternative C3 to allow for fishing 
opportunities to harvest sustainably managed sharks, with a retention 
limit not to exceed six sharks given the capacity and size of the 
vessels, while avoiding overharvest of specific shark species, 
including pelagic and hammerhead sharks. Commenters also requested NMFS 
provide extensive outreach and education to fishermen and government 
agencies on species identification and permit requirements. After 
considering public comment, NMFS created this new alternative, 
Alternative C4. This alternative is preferred because it is responsive 
to public comments and would meet the management goals highlighted in 
Chapter 1 of the Final EA by providing increased fishing opportunities 
to harvest sustainably managed sharks at incidental levels while still 
avoiding overharvest of specific species.
    Given the amount of time that transpired from the Draft EA to the 
Final EA, the analyses in the Final EA were updated with an additional 
year of fisheries data, where appropriate. In addition, the total 
annual revenue calculations in the Final EA were revised from the Draft 
EA to better estimate the total annual revenue for each alternative by 
focusing on the average number of trips taken by the fleet multiplied 
by the ex-vessel revenue per trip. These updates did not change the 
conclusions of the analyses in the Draft EA regarding ecological, 
economic and social impacts of the alternatives.

Small Entity Compliance Guide

    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. As part of 
this rulemaking process, NMFS has prepared a listserv notice 
summarizing fishery information and regulations for the changes to the 
swordfish and shark commercial permits affected in this rule. This 
listserv notice also serves as the small entity compliance guide. 
Copies of the compliance guide are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 635

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

    Dated: April 22, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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


0
2. In Sec.  635.24, revise paragraphs (a)(4)(iv), (b)(3), (b)(4) 
introductory text, and (b)(4)(iii), remove paragraph (b)(4)(iv), and 
add paragraph (b)(5) to read as follows:


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

* * * * *
    (a) * * *
    (4) * * *
    (iv) A person who owns, operates, or is aboard a vessel that has 
been issued an HMS Commercial Caribbean Small Boat permit may retain, 
possess, land, or sell any blacktip, bull, lemon, nurse, spinner, 
tiger, Atlantic sharpnose, bonnethead, finetooth, and smoothhound 
shark, subject to the HMS Commercial Caribbean Small Boat permit shark 
retention limit. A person who owns, operates, or is aboard a vessel 
that has been issued an HMS Commercial Caribbean Small Boat permit may 
not retain, possess, land, or sell any hammerhead, blacknose, silky, 
sandbar, blue, thresher, oceanic whitetip, shortfin mako, or prohibited 
shark, including parts or pieces of these sharks. The shark retention 
limit for a person who owns, operates, or is aboard a vessel issued an 
HMS Commercial Caribbean Small Boat permit will range from zero to 
three sharks per vessel per trip. At the start of each fishing year, 
the default shark trip limit will apply. During the fishing year, NMFS 
may adjust the default shark trip limit per the inseason trip limit 
adjustment criteria listed in paragraph (a)(8) of this section. The 
default shark retention limit for the HMS Commercial Caribbean Small 
Boat permit is three sharks per vessel per trip.
* * * * *
    (b) * * *
    (3) A person who owns, operates, or is aboard a vessel that has 
been issued an HMS Commercial Caribbean Small Boat permit may retain, 
possess, land, or sell North Atlantic swordfish, subject to the HMS 
Commercial Caribbean Small Boat permit swordfish retention limit. The 
swordfish retention limit for a person who owns, operates, or is aboard 
a vessel issued an HMS Commercial Caribbean Small Boat permit will 
range from 0 to 18 swordfish per vessel per trip. At the start of each 
fishing year, the default retention limit will apply. During the 
fishing year, NMFS may adjust the default retention limit per the 
inseason regional retention limit adjustment criteria listed in 
paragraph (b)(5) of this section. The default retention limit for the 
HMS Commercial Caribbean Small Boat permit is eighteen swordfish per 
vessel per trip.
    (4) A person who owns, operates, or is aboard a vessel that has 
been issued a Swordfish General Commercial permit or an HMS Charter/
Headboat permit with a commercial sale endorsement (and only when on a 
non for-hire trip) are subject to the regional swordfish retention 
limits specified at paragraph (b)(4)(iii) of this section, which may be 
adjusted during the fishing year based upon the inseason regional 
retention limit adjustment criteria listed in paragraph (b)(5) of this 
section.
* * * * *
    (iii) Regional retention limits. The swordfish regional retention 
limits for each region will range from 0 to 18 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 paragraph (b)(5) of this section. The default 
retention limits for the regions 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) Eighteen swordfish per vessel per trip for the Caribbean 
region;

[[Page 22895]]

    (C) Eighteen swordfish per vessel per trip for the Northwest 
Atlantic region; and
    (D) Eighteen swordfish per vessel per trip for the Gulf of Mexico 
region.
    (5) NMFS will file with the Office of the Federal Register for 
publication notification of any inseason adjustments to the default 
swordfish retention limits specified at paragraphs (b)(3) and 
(b)(4)(iii) of this section. Before making any inseason adjustments to 
swordfish retention limits, NMFS will consider the following criteria 
and other relevant factors:
    (i) The usefulness of information obtained from biological sampling 
and monitoring of the North Atlantic swordfish stock;
    (ii) The estimated ability of vessels participating in the fishery 
to land the amount of swordfish quota available before the end of the 
fishing year;
    (iii) The estimated amounts by which quotas for other categories of 
the fishery might be exceeded;
    (iv) Effects of the adjustment on accomplishing the objectives of 
the fishery management plan and its amendments;
    (v) Variations in seasonal distribution, abundance, or migration 
patterns of swordfish;
    (vi) 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
    (vii) Review of dealer reports, landing trends, and the 
availability of swordfish on the fishing grounds.
* * * * *
[FR Doc. 2021-08814 Filed 4-29-21; 8:45 am]
BILLING CODE 3510-22-P