[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Rules and Regulations]
[Pages 31688-31709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10727]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 635



 Atlantic Highly Migratory Species (HMS); U.S. Atlantic Swordfish 
Fishery Management Measures; Final Rule

  Federal Register / Vol. 72, No. 109 / Thursday, June 7, 2007 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 061121306-7105-02; I.D. 110206A]
RIN 0648-AU86


Atlantic Highly Migratory Species (HMS); U.S. Atlantic Swordfish 
Fishery Management Measures

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

ACTION: Final rule.

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SUMMARY: This final rule amends regulations governing the North 
Atlantic swordfish fishery to provide additional opportunities for U.S. 
vessels to more fully utilize the U.S. North Atlantic swordfish quota, 
in recognition of the improved stock status of the species. The U.S. 
North Atlantic swordfish quota is derived from the recommendations of 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT), and is implemented under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) and the 
Atlantic Tunas Convention Act (ATCA). For the past several years, the 
United States has not fully harvested its available North Atlantic 
swordfish quota. This final rule will increase swordfish retention 
limits for Incidental swordfish permit holders, and modify recreational 
swordfish retention limits for HMS Charter/Headboat (CHB) and Angling 
category permit holders. It will also modify HMS limited access vessel 
upgrading restrictions for vessels concurrently issued certain HMS 
permits. These actions are necessary to address persistent 
underharvests of the domestic North Atlantic swordfish quota, while 
continuing to minimize bycatch to the extent practicable, so that 
swordfish are harvested in a sustainable, yet economically viable 
manner.

DATES: This final rule is effective July 9, 2007.

ADDRESSES: Copies of the Final Environmental Assessment/Regulatory 
Impact Review/Final Regulatory Flexibility Analysis (Final EA/RIR/FRFA) 
can be obtained from Sari Kiraly, Highly Migratory Species Management 
Division at 1315 East-West Highway, Silver Spring, MD 20910. Copies of 
the Final EA/RIR/FRFA, the 2006 Final Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan (Consolidated HMS FMP), and 
other relevant documents are also available from the Highly Migratory 
Species Management Division website at http://www.nmfs.noaa.gov/sfa/hms.

FOR FURTHER INFORMATION CONTACT: Sari Kiraly, by phone: 301-713-2347; 
by fax: 301-713-1917; or by e-mail: [email protected], or Richard A. 
Pearson, by phone: 727-824-5399; by fax: 727-824-5398; or by e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Atlantic swordfish fishery is managed under the 
Consolidated HMS FMP. Implementing regulations at 50 CFR part 635 are 
issued under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 
et seq.), and ATCA (16 U.S.C. 971 et seq). Under ATCA, the United 
States is obligated to implement the recommendations of ICCAT, 
including those for Atlantic swordfish quotas (ICCAT Recommendations 
02-02, 03-03, and 04-02). ICCAT is an inter-governmental fishery 
organization, currently consisting of 44 contracting parties, that is 
responsible for the conservation of tunas and tuna-like species, 
including swordfish, in the Atlantic Ocean and its adjacent seas.
    In 2001, ICCAT established its ``Criteria for the Allocation of 
Fishing Possibilities'' (ICCAT Recommendation 01-25) that included 15 
separate criteria to be considered when allocating quota within the 
ICCAT framework. The first two criteria relate to the past and present 
fishing activity of qualifying participants. These criteria specify 
that ``historical catches'' and ``the interests, fishing patterns and 
fishing practices'' of qualifying participants are to be considered 
when making allocation recommendations. Other criteria, including 
conservation measures, economic importance of the fishery, geographical 
occurrence of the stock, compliance with ICCAT management measures, and 
dependence on the stocks, must also be considered when allocating 
quota.
    At its 2006 meeting, ICCAT established an annual Total Allowable 
Catch (TAC) for North Atlantic swordfish of 14,000 mt whole weight (ww) 
for the years 2007 and 2008 (ICCAT Recommendation 06-02). A total of 
2,530 mt (ww) of the TAC were allocated to ``other contracting parties 
and others,'' with the remainder being distributed to the European 
Community (52.42 percent), United States (30.49 percent), Canada (10.52 
percent), and Japan (6.57 percent), using the allocation criteria 
described above. This resulted in a baseline U.S. North Atlantic 
swordfish quota of 3,907 mt (ww) for 2007 and 2008.
    U.S. North Atlantic swordfish catches, as reported to ICCAT, have 
declined by approximately 40 percent from 4,026 mt (ww) in 1995 to 
2,424 mt (ww) in 2005, although they have stabilized since 2001. As a 
percent of the ICCAT-recommended U.S. quota, the decline in U.S. North 
Atlantic swordfish landings is even more apparent. Because the portion 
of the baseline quota not landed in one year (an ``underage'') may be 
added to the subsequent year's baseline quota, the ``adjusted'' U.S. 
North Atlantic swordfish quota has continued to increase. The United 
States has landed less than its ICCAT-recommended ``baseline'' and 
``adjusted'' swordfish quota since 1997. Based on reported landings to 
ICCAT, the United States went from exceeding its ``baseline'' quota in 
1996 to landing only 29 percent of its ``adjusted'' quota in 2005. As 
indicated above, reported catches in 2005 were 2,424 mt (ww) of a 2005 
``adjusted'' quota of 8,319 mt (ww). For the 2006 fishing year, the 
United States' ``adjusted'' quota is 9,803 mt (ww). After completing 
the first half of the 2006 fishing year (June 1, 2006 - November 30, 
2006), the United States has landed approximately 913.7 mt (ww) of 
North Atlantic swordfish, which equates to 9.3 percent of the 
``adjusted'' quota, or 23 percent of the annual ``baseline'' quota.
    The ICCAT Standing Committee on Research and Statistics (SCRS) 
recently completed a stock assessment for North Atlantic swordfish, in 
October 2006. The 2006 assessment indicated that North Atlantic 
swordfish biomass had improved, possibly due to strong recruitment in 
the late 1990's combined with reductions in reported catch since then. 
The SCRS estimated the biomass of North Atlantic swordfish at the 
beginning of 2006 (B2006) to be at 99 percent of the biomass 
necessary to produce maximum sustainable yield (Bmsy). The 
2005 fishing mortality rate (F2005) was estimated to be 0.86 
times the fishing mortality rate at maximum sustainable yield 
(Fmsy). In other words, in 2006, the North Atlantic 
swordfish stock was determined to be almost fully rebuilt and fishing 
mortality was low.
    NMFS has implemented several management measures in recent years, 
primarily to reduce the bycatch of undersized swordfish, non-target 
species, and protected species. These actions have been effective at 
reducing bycatch, but they may have also had the unintended consequence 
of contributing to persistent underharvests of the U.S. North Atlantic 
swordfish quota, and a

[[Page 31689]]

precipitous decline in the number of active pelagic longline (PLL) 
vessels (``active'' is defined as vessels that report landings in the 
HMS logbook). Some of these measures include: year-round closures in 
the DeSoto Canyon and East Florida Coast areas; seasonal closures in 
the Charleston Bump and Northeastern areas; limited access vessel 
permits; mandatory utilization of Vessel Monitoring Systems (VMS); 
mandatory circle hook and bait requirements; possession and utilization 
of release and disentanglement gear; utilization of non-stainless 
hooks; and a live bait prohibition in the Gulf of Mexico.
    The Magnuson-Stevens Act specifies that NMFS shall provide a 
reasonable opportunity for domestic vessels to harvest quota 
allocations that are derived from international fishery agreements, 
such as ICCAT recommendations. In this final rule, NMFS is modifying 
certain management measures (swordfish retention limits and vessel 
upgrading provisions) to increase domestic swordfish landings and 
revenues, while retaining important bycatch reduction provisions. The 
final management measures are intended to help revitalize the 
historical U.S. swordfish fishery in recognition of the improved stock 
status of North Atlantic swordfish, and to help maintain or increase 
the historical U.S. North Atlantic swordfish quota allocation. These 
actions are necessary to address persistent underharvests of the 
domestic swordfish quota, while continuing to minimize bycatch to the 
maximum extent practicable, so that swordfish are harvested in a 
sustainable, yet economically viable manner.
    Specifically, this action will reduce swordfish dead discards by 
increasing swordfish retention limits for Incidental swordfish permit 
holders, and increase the per vessel recreational swordfish retention 
limits for HMS CHB and Angling category permit holders. This final rule 
will also modify HMS limited access vessel upgrading and permit 
transfer upgrading restrictions for vessels that are issued, or 
eligible for renewal of, the following three permits: Incidental or 
Directed swordfish and shark permits, and Atlantic Tunas Longline 
category permits.
    The Agency conducted an Environmental Assessment (EA) to analyze 
alternatives to increase the harvest of Atlantic swordfish, while 
retaining important bycatch reduction provisions. The alternatives 
included increasing incidental and recreational swordfish retention 
limits, and modifying HMS limited access vessel upgrading restrictions. 
Information regarding the alternatives was provided in the preamble of 
the proposed rule and is not repeated here. Additional information can 
be found in the Final EA/RIR/FRFA available from NMFS (see ADDRESSES).
    The public comment period for the proposed rule (November 28, 2006; 
71 FR 68784) was open from November 28, 2006, to January 31, 2007. 
During that time, NMFS conducted seven public hearings. The locations 
and dates of the public hearings were announced in a separate Federal 
Register notice (January 3, 2007; 72 FR 96). Public hearings were 
conducted in Gloucester, MA (January 17, 2007), Manahawkin, NJ (January 
18, 2007), Madeira Beach, FL (January 18, 2007), Destin, FL (January 
23, 2007), Houma, LA (January 25, 2007), Ft. Pierce, FL (January 30, 
2007), and Manteo, NC (January 31, 2007). The Agency received 
approximately 50 e-mailed or written comment letters, and many verbal 
comments that were presented at the public hearings. A summary of the 
major comments received, along with NMFS' response, is provided below.

Response to Comments

    These comments and responses are divided into two major categories: 
those that relate specifically to the alternatives discussed in the 
proposed rule and Draft EA, and those that relate to other potential 
swordfish management measures not included in the rulemaking. Because 
the Draft EA specifically mentions the possibility of implementing 
future, long-term swordfish management measures, NMFS considers and 
responds to comments received on issues beyond the direct scope of this 
rulemaking, but still related to swordfish management.

Purpose and Need for Rulemaking

    Comment 1: NMFS should not change swordfish management measures. 
The swordfish stock has just begun to rebound. The current regulations 
have enabled swordfish to rebuild. The increased abundance does not 
justify an enlargement of the fishery, especially for the commercial 
sector, which nearly destroyed the swordfish fishery in the first 
place. Enough swordfish to supply the market are currently being 
harvested. Recreational fishermen can catch the occasional large 
swordfish. Overall, it seems that the fishery is doing well. The 
present swordfish population consists mostly of juveniles. These fish 
should be left in the water to assure that the population has a full 
size range. There should be a total ban on catching any swordfish at 
all, by any entity, or an immediate decrease in swordfish retention for 
all.
    Response: The U.S. North Atlantic swordfish quota is derived from 
the recommendations of the ICCAT. The stock has shown a significant 
increase in abundance. In 2006, the SCRS of ICCAT concluded that the 
stock was at 99 percent of Bmsy, and recommended continuing 
with a TAC of 14,000 mt (ww), in accordance with the current rebuilding 
plan. Based on this information, ICCAT adopted an overall TAC of 14,000 
mt. This is the same TAC that had previously been recommended for the 
period from 2002 [dash] 2006, and it is expected to provide for 
continued growth of the North Atlantic stock. The United States is 
allocated 30.49 percent of the overall TAC, which equates to 3,907 mt 
(ww) after deducting 1,185 mt (ww) to ``other contracting parties.'' 
The United States has not landed its North Atlantic swordfish quota 
allocation since 1997. In order to help retain the historic U.S. ICCAT 
swordfish quota allocation, NMFS believes it is appropriate to 
implement prudent management measures that will increase U.S. swordfish 
landings and foster an economically viable fishery that adheres to 
sound conservation principles. Accordingly, the measures in this final 
rule are anticipated to increase U.S. swordfish landings, but remain 
within the current ICCAT-recommended U.S. quota allocation. The 
additional landings are not projected to jeopardize stock rebuilding. 
In fact, some of the additional landings may previously have been 
discarded dead because the vessel exceeded the current Incidental 
swordfish retention limits. For these reasons, this action is not 
expected to have a significant adverse impact upon the North Atlantic 
swordfish stock.
    Comment 2: If the U.S. swordfish fishery continues to under 
perform, it will be difficult for the United States to protect its 
quota share at ICCAT in 2008. The United States must harvest its 
swordfish quota share, or it will lose it. The agreed upon transfer of 
U.S. quota underages to other countries will allow for the development 
of new or larger foreign fisheries. If a precedent has been established 
with transferring unused swordfish quota to foreign nations that are 
developing their own fisheries, in the future the United States will 
need to defend what it has done to avoid further quota transfers or 
losses to other ICCAT nations that do not have the same conservation 
measures in place to reduce or mitigate bycatch. These countries will 
demand quota share based upon their newly developed swordfish 
fisheries. If the United States loses its swordfish quota at ICCAT, 
foreign pelagic longline vessels will line

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up in the Caribbean Straits or right outside the U.S. Exclusive 
Economic Zone (EEZ) and also catch billfish. Because these countries do 
not utilize circle hooks and careful release techniques, levels of 
bycatch will increase. Therefore, NMFS must retain the U.S. swordfish 
quota to protect other species, including blue and white marlin. 
Recreational and commercial swordfish fisheries, environmental groups, 
and NMFS will all lose if the U.S. swordfish quota share is lost or 
transferred. How is NMFS going to ensure that the domestic swordfish 
quota is filled, so that quota share is not lost?
    Response: ICCAT quota allocations are not solely dependent upon 
recent landings. In 2001, ICCAT established its ``Criteria for the 
Allocation of Fishing Possibilities'' (ICCAT Recommendation 01-25) that 
included 15 separate criteria to be considered when allocating quota 
within the ICCAT framework. Many other factors must also be considered 
during negotiations to allocate quota, including conservation measures, 
economic importance of the fishery, geographical occurrence of the 
stock, compliance with ICCAT management measures, and dependence on the 
stocks. For many of these criteria, especially conservation measures 
and compliance, the United States has been a world leader among fishing 
nations. However, NMFS also recognizes the relative importance that 
many ICCAT contracting parties place upon ``historical catches'' and 
``fishing patterns'' when making quota allocations. Because of this, 
NMFS implements management measures to help U.S. vessels more fully 
harvest the U.S. swordfish quota, especially since the stock is almost 
fully rebuilt. It would not be beneficial to risk losing any portion of 
the U.S. swordfish quota, for a variety of reasons, including those 
mentioned in this comment. While the Agency cannot ensure that the 
domestic swordfish quota will be fully harvested, it will consider 
future management actions, as appropriate, that are consistent with 
other federal law and may provide additional opportunities to harvest 
swordfish.
    Comment 3: It doesn't make sense to promote the killing of more 
swordfish in U.S. waters so that we won't have to give away U.S. quota 
to other countries. Why not stop ICCAT from allocating part of the U.S. 
quota to the other countries?
    Response: As discussed in the response to Comment 1, the U.S. 
swordfish quota allocation is derived from international negotiations 
conducted at ICCAT. Because of this, the United States cannot be 
assured of its future quota allocation. Therefore, NMFS believes it is 
appropriate, at this time, to implement swordfish management measures 
that address persistent swordfish quota underharvests to better ensure 
that the United States retains an influential role in future ICCAT 
swordfish quota discussions and negotiations. As the North Atlantic 
swordfish stock is almost fully rebuilt, and overfishing is not 
occurring, the additional domestic fishing effort anticipated from this 
rulemaking should not result in overfishing.
    Comment 4: The only way that the United States can set an 
international example regarding how to appropriately manage fisheries 
is to have its fishermen making money. It is not only about preserving 
fish and saving sea turtles. These two goals, a profitable fleet and 
sustainable fisheries, must be linked in order to convince other 
countries to change their fishing methods. Otherwise, foreign fishing 
nations will keep doing whatever it takes to maximize their landings.
    Response: NMFS believes that a well-managed, sustainable swordfish 
fishery can be profitable as well. These final regulations are an 
initial step towards improving the financial stability of the U.S. 
swordfish fleet, while assuring that swordfish remain at acceptable 
biomass levels, and bycatch rates and bycatch mortality do not 
increase. Additional measures may be considered in the future to 
increase swordfish landings. In achieving these two goals, a 
sustainable and profitable fishery, NMFS believes that other ICCAT 
nations throughout the Atlantic Basin might be encouraged to adopt 
much-needed conservation measures similar to those required of American 
vessels. These include regulations regarding bycatch reduction 
techniques, and implementation of effective fishery monitoring, 
reporting, and recordkeeping capabilities. For species that traverse 
international boundaries, such as HMS, NMFS believes that it is 
essential to achieve broad consensus and cooperation on matters of 
conservation.
    Comment 5: NMFS' mismanagement of the swordfish fishery is the 
problem, not the fishermen. If NMFS had not driven all of the 
longliners out of the Straits of Florida while stocks were at 96 
percent of Bmsy, the United States would be meeting its 
swordfish allocation instead of allowing so many imports from other 
countries. Many vessels are now out of business. I do not believe that 
the United States is committed to revitalizing its historical swordfish 
fishery. NMFS should have looked at swordfish landings seven years ago. 
The Agency would have seen that the United States was not catching its 
quota, and tried to revitalize the fishery then. If NMFS wants more 
young people to get into fishing, the United States needs to allow 
people to catch the swordfish quota and to maintain the swordfish quota 
in the future.
    Response: The East Florida Coast, DeSoto Canyon, and Charleston 
Bump PLL closed areas were originally implemented from November 2000 
[dash] March 2001. At that time, the North Atlantic swordfish stock 
assessment (SCRS 1999) indicated that the stock was overfished, and at 
65 percent of the biomass necessary to achieve Bmsy. In 
addition, overfishing was occurring (F1998/Fmsy = 
1.34). In 2000, the United States did not land its entire ICCAT 
swordfish quota allocation. The United States had an allocation of 
2,951 mt (ww), and reported landings were 2,684 mt (ww) in 2000. 
Because swordfish were overfished and overfishing was occurring in 
2000, NMFS reduced the bycatch of undersized swordfish and other 
species by closing to PLL gear certain important areas of the ocean 
with unique biological characteristics. Since the implementation of 
those PLL time/area closures in 2000 - 2001, the North Atlantic 
swordfish stock has substantially increased in abundance, and it is now 
almost fully rebuilt and overfishing is not occurring. This is a 
significant achievement. The result, in recent years, has been a larger 
overall TAC recommendation from ICCAT and a correspondingly larger U.S. 
swordfish quota allocation. During that same time period, however, the 
number of active PLL vessels has continued to decline. Because the 
swordfish stock has shown a significant increase in biomass, the Agency 
now believes it is appropriate to reconsider existing swordfish 
management measures and take additional steps to more fully utilize 
this important natural resource. Revitalizing the U.S. swordfish 
fishery, while ensuring that the biomass remains at sustainable levels, 
will provide opportunities for future generations of Americans to 
participate in this fishery.
    Comment 6: NMFS should take a conservative approach in its attempt 
to more fully harvest the U.S. swordfish quota. The current size 
structure of the swordfish stock may not accurately reflect the stock's 
structure before it was severely overfished. Although swordfish 
abundance has increased, many of the fish are still juveniles. If 
swordfish harvests are unabated, it could cause irreparable harm to the 
stock. The preferred alternatives appear to make modest strides to more 
fully harvest the

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swordfish quota, apparently without fully reaching or exceeding it.
    Response: NMFS has taken a conservative approach in relieving some 
swordfish management measures to begin fishery revitalization efforts, 
while ensuring that swordfish overfishing does not occur and that 
bycatch of undersized swordfish, protected species and non-target 
species is minimized, to the extent practicable. However, it will be 
necessary to continue to monitor catches and landings to ensure that 
these objectives are met. Additional management measures may be 
considered in the future, as appropriate.
    Comment 7: We support the preferred alternatives and commend NMFS 
for moving forward and trying to provide more opportunities in this 
healthy fishery for both commercial and recreational interests. The 
Agency's ability to publish the proposed rule prior to the November 
2006 ICCAT meeting is appreciated. Although there are numerous concerns 
with the rule itself, it has shown the international community that the 
United States still has a valid stake in the swordfish fishery, and 
that revitalization is real and tangible.
    Response: NMFS recognized that it was imperative to demonstrate to 
ICCAT that the United States is committed to revitalizing its 
historical swordfish fishery, especially because the stock is now 
almost fully rebuilt. Importantly, the United States was successful in 
maintaining its swordfish quota share through 2008. U.S. fishermen have 
contributed to swordfish stock rebuilding, and should realize some 
benefit from it. Further action will be considered, consistent with the 
requirements of the Magnuson-Stevens Act, ATCA, the Endangered Species 
Act (ESA), the National Environmental Policy Act (NEPA), and other 
Federal regulations, to revitalize this important domestic fishery.
    Comment 8: The proposed measures fall far short of what is needed 
to save this national resource. I recognize that the proposed rule only 
includes less controversial solutions that can be implemented 
relatively quickly, but there will still be a significant underharvest 
of the U.S. swordfish quota. This poses a problem because there is a 
limited amount of time available to show that revitalization of the 
fishery is underway.
    Response: The final management measures are not likely, by 
themselves, to result in full utilization of the U.S. swordfish quota. 
Other measures may be considered in the future to provide additional 
opportunities to increase U.S. swordfish landings.
    Comment 9: The purpose of the proposed rulemaking was to revitalize 
the swordfish fishery, not redistribute the U.S. longline quota to 
recreational interests. NMFS should develop additional alternatives 
that will allow the commercial swordfish fishery to harvest more of the 
U.S. quota. The proposed alternatives are skewed to the advantage of 
the recreational and for-hire sectors. Because swordfish are almost 
fully rebuilt, it is a valuable opportunity for the U.S. food service 
sector. The proposed alternatives will not substantially increase the 
amount of product available to the seafood consuming public, or 
effectively increase the commercial swordfish harvest.
    Response: The overall U.S. North Atlantic swordfish quota is 
harvested by both commercial and recreational fisheries. Landings from 
both of these sectors are reported to ICCAT. Because the objective of 
this rulemaking is to increase overall U.S. swordfish landings, NMFS 
believes that the final management measures affecting both sectors are 
appropriate. The final rule does not redistribute U.S. longline quota 
to recreational fishing interests. Recreational and Incidental 
swordfish landings are currently allocated 300 mt (ww) of North 
Atlantic swordfish, within the overall U.S. quota. NMFS is not changing 
this allocation. In fact, projections contained within the Draft 
Environmental Assessment clearly indicated that the final measures are 
not likely to result in landings that would exceed the 300 mt (ww) 
Incidental quota. It is also important to note that commercial vessels 
with Directed swordfish permits are not currently governed by any 
retention limits, unlike recreational vessels. Furthermore, the 
selected vessel upgrading provisions will benefit the commercial sector 
exclusively. For these reasons, NMFS believes that the final management 
measures are appropriately balanced, and are not skewed to favor any 
particular sector. The rebuilt swordfish stock represents an 
opportunity to increase the amount of product available to the seafood 
consuming public. Increasing the Incidental swordfish retention limit 
and relieving some vessel upgrading restrictions are viable short-term 
ways to increase commercial swordfish harvests, while reinvigorating 
swordfish marketing channels.

No Action Alternatives (1a and 2a)

    Comment 10: I strongly oppose any changes to the current swordfish 
regulations so that swordfish can continue to rebuild. Therefore, I 
support the status quo alternatives and am opposed to all of the 
preferred alternatives. NMFS must conserve fish, and let the current 
regulations strengthen the swordfish population. Give the fish a break 
and rejoice in the resurrection of a magnificent fish species, which 
NMFS had previously allowed to go nearly extinct. The current 
regulations are not broken, so NMFS should not make any regulatory 
changes.
    Response: Swordfish is an important natural resource that provides 
food to American consumers, and economic and social benefits to 
commercial and recreational fishery participants. Among other 
requirements, the Magnuson-Stevens Act specifies that NMFS shall 
provide a ``reasonable opportunity'' for U.S. vessels to harvest HMS 
quotas that are managed under international agreements, such as ICCAT. 
As discussed in the response to Comment 1, the management measures 
contained in this final rule will provide for a modest increase in 
swordfish landings, without jeopardizing stock rebuilding efforts.
    Comment 11: Reasonable efforts to fully utilize the domestic 
swordfish quota are appropriate. It is vital that our commercial and 
recreational fishermen are given the opportunity to benefit from the 
successful rebuilding of the North Atlantic swordfish stock. NMFS 
should take responsible measures in an attempt to catch the U.S. 
swordfish quota, but not at the expense of billfish and the continuing 
recovery of swordfish. Therefore, NMFS cannot abandon its 
responsibility to protect juvenile swordfish, their nursery areas and 
critical spawning zones or other seriously overfished species, such as 
Atlantic marlin and bluefin tuna. NMFS should rebuild swordfish by 
ensuring that there is a spawning stock, and that the fishery is 
sustainable. Fishermen have to make a living, but it has taken 10 years 
to rebuild the stock. Do not let the pendulum swing the other way again 
to an overfished status.
    Response: The final management measures were selected to provide 
additional opportunities for commercial and recreational fishermen to 
land swordfish, while ensuring that the bycatch of undersized, 
protected, and non-target species remain at acceptable levels. NMFS is 
required under several federal statutes, including the Magnuson-Stevens 
Act, ESA, NEPA, and ATCA, to minimize bycatch and bycatch mortality to 
the extent practicable, prevent overfishing, achieve optimum yield, 
provide for sustained participation of fishing communities, protect 
threatened and endangered

[[Page 31692]]

species, and analyze the environmental impacts of potential fishery 
management actions. NMFS will continue to comply with all applicable 
legal requirements as it continues to investigate methods to revitalize 
the domestic swordfish fishery, so that U.S. swordfish quota share is 
retained.

Incidental Swordfish Retention Limits (Alternative 1a [dash] 1d)

    Comment 12: Is it really necessary for NMFS to increase Incidental 
swordfish retention limits? The fishery is just recovering from being 
overfished. I propose that recreational anglers release all swordfish, 
and that commercial fishermen remain at their current limits (non-
preferred alternative 1a) for the next five years to give the fishery a 
chance to more fully recover. There is no reason to increase the 
retention limits, no matter what category.
    Response: Swordfish are almost fully rebuilt. As discussed in the 
response to Comment 1, the North Atlantic swordfish stock was at 99 
percent of the biomass necessary to achieve Bmsy in 2006. 
Therefore, at this time, NMFS believes it is not necessary to lower the 
recreational retention limit. Rather, this final rule will increase the 
Incidental swordfish retention limit to reduce the number of legal-
sized swordfish being discarded, and to provide some economic benefit 
to permit holders by converting those discards into landings. Although 
most trips do not report a large number of discards, available logbook 
information shows that some trips reported as many as fifty swordfish 
discards. NMFS has selected final management measures that will reduce 
discards and allow more swordfish to be landed by Incidental swordfish 
permit holders, without providing an incentive for these permit holders 
to direct a large amount of additional fishing effort on swordfish. As 
such, the measures are not projected to adversely impact continued 
swordfish stock rebuilding.
    Comment 13: I support preferred alternative 1c, which would 
increase Incidental swordfish retention limits. This alternative would 
especially help commercial fishermen in the Gulf of Mexico. It would 
also help to supplement income for those fishermen whose earnings have 
been drastically slashed by recent shark management regulations.
    Response: The final management measures will increase the retention 
limits for vessels possessing an Incidental swordfish permit from two 
fish per trip to 30 fish per trip, except that permitted vessels 
fishing with a squid trawl will be limited to 15 swordfish per trip. 
These limits were selected because they may provide additional 
opportunities to land swordfish that might otherwise be discarded, 
while preventing a large increase in directed fishing effort. The 30 
fish limit is just below the median number of swordfish landed by 
directed permit holders (36 fish). If vessels land an additional 28 
swordfish, it could increase ex-vessel revenues by over $7,000.00 per 
trip, minus any additional costs, based upon the average weight and ex-
vessel price for swordfish in 2005.
    Comment 14: I thought ``incidental'' means just that, not 30 fish. 
NMFS should not change the commercial Incidental swordfish retention 
limits under preferred alternative 1c. I believe that this might turn 
Incidental swordfish permit holders into directed commercial fishers 
because of the high retention limit.
    Response: The selected alternative maintains a distinction between 
Incidental and Directed swordfish vessels. There is no retention limit 
for vessels possessing a Directed swordfish permit, whereas vessels 
possessing an Incidental swordfish permit would be allowed to retain 
only 30 fish per trip, and permitted squid trawl vessels would be 
limited to 15 swordfish per trip. Available logbook data from 2002 
[dash] 2005 indicate that the majority of Incidental swordfish permit 
holders did not report landing or discarding any swordfish. However, 19 
percent of the trips reported swordfish discards, with as many as 52 
reported on a single trip. Increasing the Incidental limit to 30 
swordfish will allow 90 percent of all swordfish discards to be 
converted into landings, if they are above the minimum legal size. As 
mentioned in the response to Comment 13, the 30 fish Incidental 
swordfish retention limit is just below the median number of swordfish 
reported kept on trips by Directed swordfish permit holders. It is 
possible that some Incidental permit holders may choose to deploy a 
directed swordfish set, perhaps seasonally. However, the new Incidental 
retention limit is not expected to result in a large-scale conversion 
to directed swordfish fishing by Incidental swordfish permit holders.
    Comment 15: The proposed regulations for retention limits make good 
sense. NMFS wants to limit regulatory discards, but not open the door 
for incidental permit holders to target swordfish. Discarding dead fish 
is the biggest double-edge sword, and it does not make any sense to 
throw a dead fish away.
    Response: The final management measures are intended to reduce 
regulatory discards without providing an incentive for Incidental 
swordfish permit holders to direct a large amount of fishing effort on 
swordfish. This is consistent with the incidental nature of the permit. 
It is primarily intended to allow Incidental permit holders to retain 
swordfish that might otherwise be discarded. The proposed 30 fish limit 
is just below the median number of swordfish retained by Directed 
permit holders.
    Comment 16: Increasing recreational and Incidental swordfish 
retention limits will not reduce discards of undersized swordfish.
    Response: Increasing recreational and Incidental swordfish 
retention limits will not reduce discards of undersized swordfish. NMFS 
cannot determine if the swordfish discards reported in the HMS logbook 
were attributable to exceeding the incidental retention limit, or 
because the swordfish were below the minimum legal size. NMFS 
continually strives to reduce the catch and mortality of undersized 
swordfish and non-target species. For example, NMFS has recently 
implemented a series of mandatory safe handling and release workshops 
for owners and operators of vessels with swordfish or shark Incidental 
and Directed permits, and using longline gear or gillnets. In 
combination with other measures, including mandatory circle hooks on 
PLL gear, mandatory possession and use of careful release equipment on 
PLL vessels, and PLL time/area closures, NMFS has made significant 
progress in reducing discards and discard mortality of undersized 
swordfish.
    Comment 17: The wording of the final regulations should be changed 
to restrict the increased Incidental swordfish retention limit to PLL 
gear and trawl gear only, and prohibit the higher retention limit in 
the buoy gear fishery in the East Florida Coast PLL closed area. The 
Incidental swordfish retention limit must remain at two fish, unless 
the permit is only to be used outside of the PLL closed areas. The area 
off the east coast of Florida is currently well balanced between 
commercial and recreational interests. Increasing Incidental swordfish 
retention limits could cause an increase in buoy gear sets in the East 
Florida Coast Closed Area off the Dade, Broward, and Palm Beach County 
Coasts. This would cause major conflicts with the vast recreational 
fleet in the Florida Straits, and undue stress on the recovering 
swordfish stock that consists mostly of immature fish that have not 
reached their full spawning potential.
    Response: Under HMS regulations at Sec.  635.71(e)(10), Incidental 
swordfish permit holders are not authorized to fish

[[Page 31693]]

for swordfish with buoy gear. For this reason, increasing the 
Incidental swordfish retention limit will not provide an incentive for 
fishermen to enter the buoy gear fishery in any area. Also, Incidental 
or Directed swordfish permit holders may not retain swordfish unless 
their vessel also possesses both a limited access shark permit and an 
Atlantic Tunas Longline category permit.
    Comment 18: NMFS is requested to consider increasing the Incidental 
swordfish retention limit for squid vessels to 20 fish. Also, a higher 
limit might be needed for squid freezer vessels that stay at sea for 
longer periods of time. Seventy-seven vessels hold Illex squid 
moratorium permits. Approximately 25 of these vessels actively fish for 
Illex squid in any single year, and 10 are freezer vessels that take 
trips lasting from seven to ten days. The remaining vessels utilize 
refrigerated seawater and stay at sea for three to four days. Because 
all existing regulations for maintaining swordfish as an incidental 
catch in the squid trawl fisheries would apply, no directed fishery is 
possible or encouraged.
    Response: The final management measures will increase the retention 
limit for Incidental swordfish permit holders that deploy squid trawls 
from five to 15 swordfish per trip. This increase will enable squid 
trawl vessels to retain fish that otherwise may have been discarded. 
Squid trawl vessels fish for, and land, small pelagic species such as 
squid, mackerel and butterfish. Swordfish catches should remain truly 
incidental to catches of these target species. However, NMFS welcomes 
additional input or comments from the squid trawl sector for future 
consideration.
    Comment 19: Increasing the retention limit for 48 Incidental 
swordfish permit holders will not make much of a difference, in terms 
of catching more of the swordfish quota. NMFS' projected swordfish 
landings are wrong. Incidental permit holders will not catch that many 
fish. NMFS has shown a wide range in the number of swordfish that could 
potentially be landed by increasing the Incidental swordfish limit. Why 
is there such a wide range? How did NMFS estimate the additional 
swordfish that will be landed? How many active Incidental swordfish 
permit holders are there? How many squid trawl vessels? Would the U.S. 
reach its quota before reaching the maximum number that could 
potentially be landed? Is it appropriate to project that each one of 
the boats is going to keep 30 fish? Only a small number of PLL boats 
are still in business, as two-thirds of the fleet is gone. The 
projections that NMFS has shown are confusing. NMFS should provide more 
detail on these numbers, so that they make sense.
    Response: The projected swordfish landings in the Draft 
Environmental Assessment are based upon certain assumptions. However, 
until final landings data are available after implementation of the new 
swordfish retention limits, it is not possible to determine whether 
these projections are accurate. In 2005, 10,787 lb dressed weight (dw) 
of swordfish were reported landed by Incidental swordfish permit 
holders in the HMS logbook. Swordfish landings by squid trawl vessels, 
as reported to ICCAT, averaged 10,443 lb (dw) per year from 1998 - 
2004. Because all squid trawl landings may not have been reported in 
the HMS logbook, these landings were added together with the other 
Incidental landings to derive an estimate of 21,230 lb (dw) of 
swordfish landed by Incidental permit holders in 2005. NMFS then 
presented a range of projected landings to reflect uncertainties 
regarding future fishing activity. At one end of the range, NMFS 
assumed that all reported discards by Incidental swordfish permit 
holders would be landed, up to 30 fish. Therefore, if a vessel reported 
landing two swordfish and discarding five swordfish, a total of seven 
swordfish were assumed to be landed. Also, squid trawl landings in 2005 
were tripled, reflecting the tripling of the squid limit from five fish 
to 15 fish. This methodology resulted in a projected estimate of 66,207 
lb. At the other end of the range, NMFS assumed that all reported trips 
by Incidental swordfish permit holders would land 30 fish. Therefore, 
if an Incidental swordfish permit holder reported landing one swordfish 
in 2005, it was assumed that 30 fish would be landed under the new 
limits. Again, squid trawl landings were also tripled. This methodology 
resulted in a projected estimate of 476,444 lb. A similar methodology 
was used for the recreational retention limits where, at one end of the 
range, it was assumed that only trips that had previously landed the 
retention limit (three fish) would also land the new retention limit 
(four fish or 15 fish). At the other end of the range, it was assumed 
that all recreational trips would land the new retention limits. NMFS 
believes that actual landings will likely fall somewhere between the 
lower and higher end of these ranges.
    Comment 20: Putting more swordfish on the market by increasing the 
Incidental retention limit will reduce the price that Directed 
swordfish permit holders receive. This is a bad economic decision.
    Response: NMFS recognizes that an increase in the volume of 
incidentally caught swordfish could affect swordfish prices. However, 
some constituents have told NMFS that the current 2-fish Incidental 
retention limit does not justify the additional effort of fishing for, 
or landing, swordfish, and then bringing them to market. These 
constituents stated that the current two-fish Incidental retention 
limit has contributed to an inadequate infrastructure and marketing 
channel in some areas that is not suitable for handling swordfish. NMFS 
believes that the 30-fish retention limit will provide more of an 
incentive to land and market incidentally caught swordfish, without a 
significant disruption to swordfish prices. Increased participation by 
incidental permit holders could help to develop a more consistent 
supply of swordfish, and thus lead to a more robust market for 
swordfish products.

Recreational Swordfish Retention Limits (Alternatives 1e [dash] 1f)

    Comment 21: NMFS received several comments concerning preferred 
alternatives 1e and 1f, which would increase the per vessel 
recreational swordfish retention limits. These comments include: The 
current recreational swordfish retention limit is already very generous 
for ``personal'' use, and increasing it would promote commercial 
harvest by ``recreational'' anglers. Recreational permit holders are 
currently keeping one swordfish, and illegally selling the others to a 
restaurant or a market buyer. Under the preferred alternatives, these 
illegal recreational swordfish sales would continue to grow; there is 
no reason to increase ``recreational'' retention limits if the rampant 
illegal sale of recreational swordfish cannot be controlled. It is 
necessary to strike a balance when setting recreational limits between 
fulfilling the recreational ``experience'' and encouraging the 
development of a quasi-commercial activity; the preferred alternatives 
to increase recreational vessel limits will hurt the prices that 
commercial fishermen receive for their swordfish. These swordfish will 
be sold and compete in the market with commercially landed fish.
    Response: The Agency received many comments regarding the illegal 
sale of recreationally caught swordfish. The current regulations 
explicitly prohibit the sale of swordfish by HMS Angling category 
permit holders. The sale of swordfish by HMS CHB permit holders is also 
prohibited, unless the vessel owner concurrently possesses a limited

[[Page 31694]]

access swordfish Handgear permit. Furthermore, anyone who buys Atlantic 
swordfish from a U.S. vessel must have a Federal Atlantic Swordfish 
Dealer permit, and must report all purchases to NMFS. All non-
tournament swordfish landings by Angling and CHB permit holders must be 
reported by calling (800) 894-5528. For recreational swordfish 
reporting information in Maryland, contact (410) 213-1531. In North 
Carolina, contact (800) 338-7804. Tournament directors, if selected, 
must report tournament landings. NMFS does not anticipate that 
increasing the recreational retention limit will increase illegal 
recreational sales because the recreational sale of all swordfish is 
clearly prohibited. However, citizens with information regarding the 
illegal sale of recreationally caught swordfish are encouraged to call 
the anonymous NMFS Office of Law Enforcement tip line at (800) 853-1964 
to report the incident.
    Comment 22: A recreational vessel does not have enough room onboard 
to properly ice more than one fish. Therefore, the preferred 
alternatives to increase recreational swordfish retention limits could 
cause health problems. NMFS should reduce the recreational retention 
limit to one fish per boat per trip.
    Response: NMFS is not reducing the recreational retention limit 
because it is important to provide more opportunities for fishermen to 
land the U.S. swordfish quota, and recreational landings are counted 
against the quota. The decision regarding whether or not to land a fish 
is often made when the animal is alongside the boat. HMS regulations 
currently require that all fish that are not retained must be released 
in a manner that will ensure the maximum probability of survival, 
without removing the fish from the water. If an angler decides to keep 
a fish, it is his or her personal responsibility to ensure that the 
fish is maintained properly so that it is safe to eat. Since the fish 
cannot be sold, the federal government has no direct role in ensuring 
that it is safe to eat. However, to prevent waste, NMFS strongly 
encourages all anglers to keep no more fish than they can safely 
handle.
    Comment 23: Recreational fisheries can develop rapidly and can 
threaten the Incidental catch quota. NMFS must properly monitor and 
record recreational and CHB swordfish landings to control the ultimate 
destination of these catches. NMFS should also include criteria that 
would allow for the downward adjustment of recreational limits to 
prevent exceeding the Incidental catch quota.
    Response: As indicated in the response to Comment 21, all non-
tournament recreational swordfish landings by HMS Angling and CHB 
permit holders must be reported to NMFS, or to the states of Maryland 
and North Carolina as applicable. These landings are collected on a 
daily basis. Using historical reported recreational swordfish landings, 
the projections presented in the Draft Environmental Assessment 
indicate that increasing recreational retention limits will not result 
in an exceedance of the Incidental swordfish quota. However, anecdotal 
information suggests that recreational swordfish landings may be under 
reported. Reporting could increase in the future as more anglers become 
aware of the requirement through Agency outreach. NMFS will continue to 
collect recreational swordfish landings data, and will take appropriate 
and timely action to maintain compliance with the Incidental swordfish 
quota.
    Comment 24: I prefer alternative 1e, which would increase CHB 
vessel retention limits. This alternative would assist the recreational 
CHB industry by increasing overall recreational swordfish landings. It 
would allow CHB vessels to target swordfish instead of just catching 
them as bycatch species on tuna, marlin, and dolphin fishing trips.
    Response: The final management measures will increase the per 
vessel HMS CHB swordfish retention limits, based upon the number of 
paying passengers onboard. This could provide additional opportunities 
for the HMS CHB sector to market recreational swordfish fishing trips.
    Comment 25: Increasing the recreational retention limits will not 
affect the U.S. swordfish quota, because recreational fishermen are 
catching swordfish and not reporting them. They believe that reporting 
their catches will result in them being closed out.
    Response: As indicated in the response to Comment 21, all non-
tournament recreational swordfish landings by HMS Angling and CHB 
permit holders must be reported to NMFS, or to the states of Maryland 
and North Carolina as applicable. These reported landings are counted 
against the U.S. swordfish quota. It is possible that a failure to 
report recreational landings could result in a potential reduction of 
the Incidental swordfish quota, or a reduction in the overall U.S. 
swordfish quota in the future.
    Comment 26: We have no objections to the proposed regulations to 
increase the recreational retention limit to one per person, up to four 
per vessel, as long as NMFS is only making the change to help the U.S. 
reach its swordfish quota. Similarly, there is no objection to the 
proposed regulations to increase retention limits for CHB vessels.
    Response: The purpose of this rulemaking is to implement management 
measures that will enable the United States to more fully harvest its 
ICCAT-recommended North Atlantic swordfish quota. The U.S. swordfish 
quota allocation includes both recreational and commercial landings. 
For this reason, NMFS chose to modify the regulations for both sectors 
in order to increase overall U.S. swordfish landings.
    Comment 27: We support alternatives 1e and 1f to help the United 
States catch its swordfish quota. However, most recreationally caught 
swordfish are caught in the areas that are closed to PLL gear to 
protect juvenile swordfish. Therefore, we recommend an increase in the 
minimum size limit for all swordfish caught from within the PLL closed 
areas.
    Response: The minimum swordfish size is established by ICCAT. 
However, the United States has some discretion to negotiate a higher 
minimum size, considering domestic requirements. NMFS may consider this 
in the future, if necessary.
    Comment 28: Does the crew count when calculating the recreational 
swordfish vessel retention limit for HMS CHB vessels?
    Response: No. The captain and crew do not count when calculating 
the swordfish vessel retention limit for HMS CHB vessels. Under the 
final regulations, the vessel limit is no more than one swordfish per 
paying passenger, up to six swordfish per vessel per trip for charter 
vessels; and no more than one swordfish per person, up to 15 swordfish 
per vessel per trip for headboat vessels. The retention limit for 
vessels issued an HMS Angling category permit is no more than one per 
person, up to four swordfish per vessel per trip.
    Comment 29: In Louisiana, there are approximately four headboats, 
but they do not fit into the typical ``headboat'' category. They might 
fall under the headboat category or the charter boat category. These 
boats have to meet their minimum day rate, and they must carry a 
certain amount of passengers in order to leave the dock. But, they are 
different from the boats in Florida where everybody shows up and pays 
their individual fees. These boats are usually targeting snapper and 
grouper on overnight trips, but they may target swordfish. They might 
also fish for tuna during the day, and then start fishing for swordfish 
at night.

[[Page 31695]]

    Response: A charter boat means a vessel that is less than 100 gross 
tons (90.8 mt) that meets the requirements of the U.S. Coast Guard to 
carry six or fewer passengers for hire. A headboat means a vessel that 
holds a valid Certificate of Inspection issued by the U.S. Coast Guard 
to carry passengers for hire. Thus, the applicable swordfish retention 
limits for charter and headboat vessels are based upon the tonnage of 
the vessel and whether it meets the requirements to carry six or fewer 
passengers, or whether it possesses a valid Certificate of Inspection 
issued by the U.S. Coast Guard to carry passengers for hire.

Vessel Upgrading Restrictions (Alternatives 2a [dash] 2e)

    Comment 30: NMFS should consider an alternative to remove gross 
registered tonnage (GRT) and net tonnage (NT) restrictions for 
simplification of vessel construction or conversion.
    Response: Length overall (LOA), GRT, and NT are all measurements of 
a vessel's size and capacity. During the initial development of the 
limited access permit regulations, NMFS established an upper limit on 
fishing effort by restricting both the number of permitted vessels, and 
restricting upgrades in the size and capacity of those vessels. The 
purpose was to maintain overall fleet capacity at a relatively constant 
level. This was intended to improve the effectiveness of other 
management measures by preventing a sudden increase in fleet capacity 
and fishing effort when stocks first began to rebuild. Vessel tonnage 
was linked with vessel length to prevent vessels from increasing in 
beam while complying with other restrictions on length. However, since 
then, the fishing and boat building industries have informed NMFS that 
it is sometimes difficult to increase a vessel's length proportionately 
with its tonnage. Also, it has been brought to the Agency's attention 
that restrictions on net tonnage may significantly hamper interior 
modifications to vessels, such as reconfiguring the engine room, which 
may have little impact on the vessel's capacity. Finally, some 
fishermen have indicated that restrictive retention limits nullify the 
need to restrict vessel capacity (GRT and NT). NMFS is aware of these 
concerns and may consider further modifications to the vessel upgrading 
restrictions in the future. In this final rule, the 35 percent 
allowance is expected to provide additional flexibility for owners to 
upgrade their vessels, whether through construction, conversion, or 
permit transfer.
    Comment 31: I support no action alternative 2a for the upgrading 
restrictions. Vessel capacity is adequate. Bigger vessels are not 
needed to harvest swordfish in the Gulf of Mexico. By lifting the 
upgrading restrictions, NMFS is catering to people who are trying to go 
to the Grand Banks. Lifting or modifying the upgrading restrictions 
would only benefit larger swordfish boats that currently catch most of 
the swordfish. I do not want Atlantic fishermen upgrading their vessels 
and then moving to the Gulf of Mexico to fish for swordfish.
    Response: The final management measures will modify the vessel 
upgrading criteria for all vessels that concurrently possess Incidental 
or Directed swordfish and shark permits, and an Atlantic Tunas Longline 
category permit. This will benefit all commercial vessels that 
concurrently possess these three permits, not just larger vessels. 
Vessel owners are not required to upgrade. The revised upgrading 
criteria will improve the flexibility of vessel owners to make 
individual business decisions based upon their own unique 
circumstances. Overall, some vessels may not be optimally configured 
for current market conditions, and therefore profits may be less than 
optimal. Without some modification to the current upgrading 
restrictions, these vessels (primarily PLL vessels) would continue to 
be limited in their ability to modernize, thus affecting the ability to 
retain skilled crew, carry observers, and fish further offshore. In 
addition, limitations on vessel capacity may affect safety at sea 
because, in general, a larger vessel is more seaworthy than a smaller 
vessel, especially in rough seas. NMFS cannot accurately predict where 
newly upgraded vessels will fish, but it is important to provide some 
additional flexibility to improve their mobility. It is possible that 
some vessels could move out of the Gulf of Mexico to fish, rather than 
move into it.
    Comment 32: I support no action alternative 2a for the vessel 
upgrading restrictions. The United States is not failing to catch its 
swordfish quota because of the size of the vessels. The current fleet 
capacity can harvest the quota if the boats are provided with more 
opportunities to fish.
    Response: Vessel capacity is one factor, among several, that is 
potentially preventing the U.S. fleet from landing its full North 
Atlantic swordfish quota. NMFS believes that allowing for an increase 
in vessel size and horsepower (HP), will provide more opportunities to 
increase domestic swordfish catches. For example, increased vessel 
capacity and HP could allow some operators to fish further offshore, 
fish longer without offloading, and reduce the time spent transiting to 
and from fishing grounds.
    Comment 33: As a swordfish Handgear permit holder, I am opposed to 
lifting the upgrading restrictions on handgear vessels (non-preferred 
alternative 2c). I feel that making numerous permits available would 
cause far too many buoy gear conflicts with the vast recreational fleet 
in the Florida Straits.
    Response: In the final rule, NMFS is not removing or modifying 
upgrading restrictions for vessels issued limited access swordfish 
Handgear permits. Also, NMFS is not making any new commercial swordfish 
permits available, because they are all limited access. However, 
upgrading restrictions are being modified specifically for vessels that 
concurrently possess limited access Atlantic Tunas Longline permits, as 
well as Directed or Incidental swordfish and shark permits. Most of 
these vessels fish with PLL gear. HMS regulations also allow vessels 
with a Directed swordfish permit to fish with buoy gear in the PLL 
closed areas, if PLL gear is not onboard. Because many vessels that 
might fish with buoy gear have very high horsepower, several commenters 
have indicated that the current HP restriction is a limiting factor 
that prevents many fishermen from obtaining a Directed swordfish 
permit, along with the other two necessary permits, and deploying buoy 
gear. Therefore, by removing the HP upgrading restriction for Directed 
swordfish vessels, buoy gear fishing activity could increase. As 
described in greater detail in the response to Comment 40, NMFS 
currently believes that the buoy gear fishery is adequately regulated 
through limits on the number of buoys that may legally be deployed, 
gear monitoring and marking requirements, limits on the number of hooks 
that may be attached, logbook reporting requirements, and other general 
commercial fishing regulations. NMFS is aware of the concerns expressed 
regarding buoy gear, and may implement additional regulations on the 
buoy gear fishery in the future, if necessary.
    Comment 34: NMFS received several comments in favor of increasing 
allowable vessel upgrades, or removing the upgrading restrictions 
altogether (non-preferred alternative 2d). These comments include: I 
support immediately taking off the restrictions on vessel size for all 
vessels possessing HMS limited access permits. If the number of permits 
is limited, then why manage the size of the boat too? It is not the 
government's business regarding the

[[Page 31696]]

size of the engine that I have on my boat. The government has put 
enough restrictions on fishermen; in the Pacific PLL fleet all vessels 
can go up to 100 feet in length, so NMFS should consider this as an 
alternative; limiting the size of fishing vessels is a problem. Most 
current swordfish vessels are from 40 to 50 feet in length. Allowing 
these vessels to be upgraded by 35 percent to 65-foot vessels under 
preferred alternative 2e makes no sense, because 65-foot vessels have 
become unprofitable. No new 65-foot vessels have been built in years.
    Response: One of the goals of this rulemaking was to develop and 
implement management measures that would facilitate, in the short term, 
the ability of U.S. vessels to harvest the ICCAT-recommended domestic 
swordfish quota. Thus, the Agency selected alternatives that would meet 
these goals, and that were projected to have comparatively minor 
environmental impacts. Non-selected alternative 2d would have removed 
all HMS limited access vessel upgrading and permit transfer upgrading 
restrictions for ten years. This alternative was not selected because 
it was projected to result in the most adverse ecological impacts. The 
universe of affected vessels is substantially larger under alternative 
2d, and there would be no limit on the size to which HMS limited access 
vessels could be upgraded. The final management measures will allow 
some owners to upgrade their vessels by 35 percent in size (relative to 
the baseline specifications of the vessel initially issued the limited 
access permit), with no limits on HP. This would allow, for example, an 
``average'' 55-foot baseline vessel to be upgraded to a 74-foot vessel 
with unlimited HP. NMFS believes that this is a meaningful increase in 
vessel size, but overall fleet capacity will remain within acceptable 
limits. It provides vessel owners with more flexibility to make 
business decisions based upon their own individual needs. NMFS selected 
this alternative because there will likely be fewer adverse ecological 
impacts compared to the other alternatives. The North Atlantic 
swordfish stock is still rebuilding. Also, several species caught as 
bycatch in the PLL fishery are currently overfished, or protected under 
the ESA. The final management measures may increase overall fleet 
capacity, but not to extent that overfishing will occur or bycatch will 
substantially increase. As additional data become available regarding, 
among other things, swordfish stock status, sea turtle interactions, 
levels of bycatch, and the effectiveness of circle hooks and careful 
handling and release techniques, NMFS may reexamine the HMS limited 
access vessel upgrading restrictions to determine if additional 
modifications are warranted.
    Comment 35: Which vessels are eligible for the upgrade under 
preferred alternative 2e? Do they have to fish with PLL gear or just 
have the permits that would enable them to fish with PLL gear?
    Response: In order to be eligible for the 35-percent vessel upgrade 
in LOA, GRT, and NT, with no restrictions on HP, a vessel must 
concurrently possess, or be eligible for the renewal of, the following 
three permits 30 days from the effective date of this final rule: 
Directed or Incidental swordfish and shark permits, and an Atlantic 
Tunas Longline category permit. Vessel owners may submit applications 
to transfer permits so that a vessel concurrently possesses the three 
necessary permits to be eligible for the 35 percent upgrade. However, 
NMFS must receive a complete application from the vessel owner no later 
than 30 days from the effective date of this final rule in order for 
the vessel to be eligible.
    Comment 36: The swordfish industry stagnated and died because it 
could not build large freezer vessels just when they were needed to 
meet world market demand. NMFS must find a method to allow larger 
vessels to economically enter the fleet, such as foreign vessels or 
large shrimp boats. The U.S. fleet needs much larger vessels to travel 
further and to utilize onboard freezers.
    Response: As indicated in the response to Comment 34, NMFS 
considered an alternative that would have removed all upgrading 
restrictions on all vessels possessing HMS limited access permits. 
However, this alternative was not selected because it was determined to 
have the most severe adverse environmental impacts. As the frozen 
seafood market has grown substantially in recent years, NMFS may 
consider the concept of domestic freezer vessels in the future, if 
appropriate. Currently about 38 vessels are greater than 70 feet in 
length, and possess Directed swordfish permits. Under the final 
management measures, these existing vessels could be upgraded, either 
through conversion or permit transfer, to 94 feet or more, depending 
upon the size of the baseline vessel, for use as a freezer vessel 30 
days from the effective date of the final regulations. In the longer 
term, it may be necessary for NMFS to further analyze the potential 
impacts associated with a swordfish freezer fleet to determine an 
appropriate number of vessels, permit qualification criteria, 
environmental impacts, and other items. Under the Magnuson-Stevens Act, 
no foreign vessels are allowed to fish within the U.S. EEZ, unless that 
portion of the optimum yield that would be caught by those vessels 
cannot be harvested by U.S. vessels.
    Comment 37: The last U.S. PLL boat was built in 1994. There is no 
money for the owners of PLL vessels to upgrade their boats. If you want 
to revitalize the industry, then upgrading is not the way to do it 
because the remaining fishermen cannot afford it.
    Response: Several constituents identified the current vessel 
upgrading restrictions as one factor, among several, limiting the 
ability of U.S. vessels to fully harvest the U.S. swordfish quota. 
Vessel owners are not required to upgrade. The option to upgrade could 
improve the flexibility of some vessel owners to make individual 
business decisions, based upon their own unique circumstances.
    Comment 38: I support removing HP restrictions on PLL vessels in 
preferred alternative 2e. Speed is important when selling fresh fish, 
which the U.S. fleet does.
    Response: Removing the HP upgrading restrictions will provide 
additional flexibility to modify vessels possessing, or eligible to 
possess, Directed or Incidental swordfish and shark permits, and 
Atlantic Tunas Longline category permits. These vessels usually fish 
with stationary PLL gear, rather than with towed gear, so HP may have a 
relatively minor impact on fishing effort. However, if an owner is able 
to increase the vessel's speed, it could reduce transit time and 
provide additional fishing time.
    Comment 39: Removing HP upgrading restrictions in preferred 
alternative 2e will make little difference to PLL vessels. Most 
longline vessels are not going to go faster with more HP, and it will 
cost more in fuel. It is not possible to get some boats up on a plane 
to go faster, even if the HP is increased.
    Response: As indicated above in Comment 38, NMFS received 
contrasting comments regarding the effect of removing the HP upgrading 
restrictions. NMFS recognizes that some vessels may not be able to 
travel any faster with a more powerful engine, due to the vessel's hull 
configuration. However, other vessels might be able to travel faster. 
NMFS believes that waiving the HP upgrading restrictions on vessels 
that concurrently possess the three necessary HMS limited access 
permits will provide some owners with additional flexibility to modify 
their vessels according to their needs, and potentially provide more 
fishing time.

[[Page 31697]]

    Comment 40: We cannot support the proposed rule as written because 
the unlimited HP upgrade is not restricted to vessels that specifically 
fish with PLL gear. The Draft Environmental Assessment indicates that 
NMFS desired to restrict the upgrade to PLL vessels, but the proposed 
regulations do not reflect this intent. The limitation that currently 
keeps vessels from entering the buoy gear fishery is the HP limitation, 
and the fact that most available limited access swordfish permits do 
not match the typical high HP boats used in the recreational fishery 
off South Florida. We recommend and support limiting HP upgrades only 
to vessels that will fish with PLL gear. Otherwise, there could be an 
increase in buoy gear sets in the East Florida Coast Closed Area. If 
NMFS allows unlimited HP upgrades under preferred alternative 2e, those 
commercial swordfish permits will go to the Miami area, and not be used 
by vessels that fish with PLL gear. PLL boats will upgrade and use 
their Directed swordfish permit and upgraded boat to fish with buoy 
gear off the Florida East Coast, or the Directed swordfish permits will 
be bought by recreational fishermen in the Miami and Fort Lauderdale 
areas who want to become part-time commercial buoy gear fishermen. 
There are enough transferable permits available for those who wish to 
enter the buoy gear fishery with the serious intent of making a living. 
NMFS should allow the upgrades, provided that the permit holder 
forfeits the right to fish in the closed zones if they upgrade their 
permit or buy a permit that they plan to upgrade. If the HP for a 
commercial swordfish permit were increased, the holder would waive the 
right to fish in the PLL closed zones. Alternatively, we recommend 
limiting HP upgrades to vessels that will only fish with PLL gear. 
Restricting the gear types on upgraded permits would not affect vessels 
in any other HMS fisheries. Keeping the buoy gear fishery a small 
fishery with controlled growth would reduce gear conflicts and allow 
for a sustainable fishery. The intent was for the permits to be used to 
make PLL boats go farther offshore and stay out longer.
    Response: The intent of this final rule is to provide additional 
opportunities for U.S. vessels to harvest a larger portion of the 
ICCAT-recommended domestic swordfish quota. It is not intended solely 
to make PLL boats fish further offshore or for these vessels to take 
longer trips, although that could be a secondary benefit if additional 
swordfish landings occur with few additional adverse ecological 
impacts. The vessel upgrading restrictions are administered largely 
through the issuance of permits, as the allowable upgrade 
specifications for each vessel are printed directly on its limited 
access swordfish and shark permit. With the exception of the swordfish 
Handgear permit and some tuna permits, HMS vessel permits are currently 
issued by species, and not by gear. NMFS rejected an alternative to 
waive the upgrading restrictions on vessels possessing swordfish 
Handgear permits in the Draft Environmental Assessment because the 
upgrades would not be limited, and also to reduce buoy gear conflicts 
with recreational users. In this final rule, NMFS is modifying vessel 
size upgrading restrictions and removing HP upgrading restrictions on 
vessels concurrently possessing Incidental or Directed swordfish and 
shark permits, and an Atlantic Tunas Longline category permit. These 
three permits are necessary to fish for HMS with PLL gear, or to land 
swordfish commercially (other than with the swordfish Handgear permit). 
Because buoy gear is authorized only for vessels possessing either a 
Directed swordfish permit (along with the other two permits) or a 
swordfish Handgear permit, NMFS recognizes that, as a result of waiving 
the HP upgrading restrictions for vessels possessing a Directed 
swordfish permit, some current recreational fishermen may seek to 
obtain a Directed swordfish permit and the other two commercial permits 
to fish with buoy gear in the East Florida Coast PLL closed area. 
However, the Agency believes that the actual number of recreational 
fishermen choosing to pursue this commercial activity is likely to be 
limited, although it does warrant future monitoring. The start-up costs 
associated with obtaining the three commercial limited access permits 
and all of the required fishing and safety gear are sizeable. 
Furthermore, accurate recordkeeping and reporting are essential. This 
could potentially necessitate the formation of a corporation and a 
career change, if conducted on anything other than a part-time basis. 
Reporting forms and weighout slips must be submitted after each trip, 
or monthly if no fishing occurs. Additionally, vessel owners and 
operators must remain cognizant of, and adhere to, all commercial 
fishing regulations. If selected, these vessels would also be required 
to carry observers. In the 2006 Consolidated HMS FMP, NMFS recently 
authorized the use of buoy gear, and clarified its usage, by 
implementing several new restrictions for swordfish Directed and 
Handgear permit holders deploying buoy gear. These are the only permits 
with which buoy gear may be deployed. The new restrictions included a 
limit on the allowable number of hooks per buoy gear, a limit on the 
number of floatation devices that may be deployed, and gear monitoring 
requirements. The permit and upgrading restrictions are not based upon 
gear type, whereas the closed areas are administered by gear type. To 
restrict the new vessel upgrading requirements only to Directed 
swordfish permit holders that do not, or will not, fish in the PLL 
closed areas would require permit restructuring under a separate 
rulemaking. As additional information regarding buoy gear becomes 
available through the HMS logbook and research efforts, NMFS will 
reevaluate the fishery and its current regulations, if necessary.
    Comment 41: We support the increase in size and HP for PLL vessels 
in preferred alternative 2e, because it provides greater safety and 
range for each trip, which should provide a better opportunity to land 
the U.S. swordfish quota. Larger vessels fishing further from closed 
zones within U.S. waters should also reduce user group conflicts. 
However, if the increases in length and HP also result in larger drums 
and longer longlines on PLL vessels, restrictions should be implemented 
to restrict the longline length to no more than the current average 
length to avoid longer soak times and increased incidental catch 
mortality.
    Response: NMFS' Draft Atlantic Pelagic Longline Take Reduction Plan 
(available at http://www.nmfs.noaa.gov/pr/interactions/trt/pl-trt.htm), 
which was prepared to reduce bycatch of marine mammals in the Atlantic 
PLL fishery, has recommended that PLL vessels establish a 20 nautical-
mile upper limit on mainline length for all PLL sets within the Mid-
Atlantic Bight region. NMFS is preparing a proposed rule to implement 
this plan.
    Comment 42: Commercial fishermen are concerned that waiving the 
upgrading restrictions for HP will encourage additional recreational 
vessels to transfer commercial permits to their charter vessels and 
land swordfish commercially.
    Response: For a charter vessel to sell swordfish commercially, the 
vessel owner must obtain either a swordfish Handgear permit, or three 
required permits (Directed or Incidental swordfish and shark permits, 
and an Atlantic Tunas Longline category permit). Upgrade restrictions 
for swordfish Handgear permits are not being modified in this final 
rule. If the vessel owner obtains the other three required permits, 
that owner cannot

[[Page 31698]]

obtain an HMS CHB category permit, as specified in Sec.  635.4(d)(3). 
For this reason, NMFS does not believe that a large number of vessel 
owners will relinquish their HMS CHB permit for the opportunity to sell 
swordfish. It would likely necessitate a substantial change in business 
activites, from carrying paying recreational passengers to commercial 
fishing. Also, as discussed in the response to Comment 40, the start-up 
and operating costs are likely to be sizeable. However, the Agency 
believes that if some current CHB fishermen choose to become commercial 
fishermen as a result of this final rule, overall positive benefits 
could result. It would assist the Agency's efforts in harvesting the 
ICCAT-recommended U.S. swordfish quota.

Other Swordfish Management Measures

Pelagic Longline Closed Areas
    Comment 43: The current PLL closed areas are important biological 
areas that protect many species of juvenile fish. They should be closed 
to all vessels, both recreational and commercial.
    Response: The current HMS time/area closures apply to either PLL or 
bottom longline (BLL) gear. The first time/area closure for HMS was 
implemented in 1999 off New Jersey to reduce bluefin tuna discards in 
the PLL fishery. Since then, additional PLL closures have been 
implemented in the DeSoto Canyon (2000), Florida East Coast (2001), 
Charleston Bump (2001), and the Northeast Distant Area (2001). The 
Northeast Distant time/area closure was later modified in 2004 to a 
Gear Restricted Area, where only large circle hooks with special bait 
are allowed. In 2005, NMFS implemented the Mid-Atlantic shark BLL 
closed area. The goals of all the HMS time/area closures are to: (1) 
reduce bycatch; (2) minimize the reduction in target catches; and, (3) 
minimize or reduce non-target HMS (i.e., bluefin tuna and billfish) 
catch levels. There are currently no areas closed to recreational HMS 
fishing gears (i.e., rod and reel and handline), primarily because 
these gears are actively tended, and have few interactions with marine 
mammals and protected species. However, due to the large number of 
recreational anglers, NMFS will continue to investigate methods to 
reduce post release mortality in the recreational fishery.
    Comment 44: The primary reason that the United States is not 
catching its swordfish quota is because PLL vessels cannot fish in the 
PLL closed areas. Many PLL vessels went out of business due to the PLL 
time/area closures. Because the prime fishing grounds are closed, PLL 
vessels must fish in areas that do not produce many swordfish. The only 
way that the United States can increase its swordfish catch is to 
immediately reopen some of the PLL closed areas. Otherwise, the United 
States will lose some of its baseline swordfish quota by 2008. Also, 
swordfish catches will likely continue to decline as the few remaining 
PLL boats go out of business due to inadequate fishing opportunities. 
The commercial fishing industry is fast approaching a ``point of no 
return.'' Vessel owners will not invest in a larger vessel to continue 
in a business that is restricted in growth. The longer a fishery 
recovery program is drawn out, the faster that the fishing 
infrastructure will decay. There may soon be no docks left for HMS 
vessels to land swordfish in certain areas. NMFS should not encourage 
people to upgrade or buy a newer or larger boat, unless it can provide 
assurances that it will not regulate them out of business in the 
future. NMFS could open selected closed areas using intensive observer 
coverage. This would allow for an increase in catch while 
simultaneously providing important data. If any adverse trends are 
detected, the areas could immediately be closed. If NMFS opens some 
closed areas, the boats may be willing to give a percentage of their 
gross revenues to cover the cost of observers. To reduce bycatch, the 
PLL fleet has already transitioned to circle hooks, uses careful 
release and disentanglement gear, and is prohibited from using live 
bait in the Gulf of Mexico.
    The commercial PLL industry requests to work with NMFS on an 
Exempted Fishing Permit (EFP) that would provide data on PLL gear and 
lead to the eventual reopening of the PLL closed areas. The first PLL 
time/area closure that should be reconsidered is the area extending 
from the Straits of Florida up to, and including, the Charleston Bump 
area. This area is currently producing large volumes of high quality 
swordfish that average about 80 lb each. The bycatch of marine mammals 
and protected species in this area is low. There is also real time 
information available from mandatory Vessel Trip Reports and dealer 
reports. This information would support what appears to be a 
revitalized fishery when compared to landings in the same area ten 
years ago.
    NMFS should also consider a small-scale, cooperative research 
program (six to seven pelagic longline vessels) in the Charleston Bump 
time-area closure with 18/0 circle hooks and 100 percent observer 
coverage to monitor catch, discards and protected species interactions. 
This would provide important data on the swordfish population and the 
impacts of circle hooks and bait restrictions that have gone into 
effect since the inception of the closure. There are not many small 
fish, sea turtles, or marine mammals in the Charleston Bump at that 
time of the year. There are also a limited number of directed swordfish 
vessels, so adverse ecological impacts would likely be minimal. Re-
opening the area would allow for a short-term increase in commercially 
harvested swordfish on the market during the late winter and early 
spring.
    Finally, NMFS should reopen the southern portion of the DeSoto 
Canyon, because more area than necessary is closed in the Gulf of 
Mexico. Smaller boats cannot travel farther out west to fish in the 
Gulf of Mexico. The northern portion of the DeSoto Canyon should remain 
closed because it is a nursery ground for swordfish.
    In conclusion, NMFS has already implemented many bycatch mitigation 
measures for PLL vessels, based on the NED experimental fishery. 
Another experimental fishery in the current PLL time-area closures 
would provide additional important information. Re-opening portions of 
the PLL closed areas is essential to fully harvest the U.S. swordfish 
quota.
    Response: The current time/area closures were implemented for 
specific management objectives. NMFS may modify the existing closures, 
as appropriate, to allow utilization of a given fishery, consistent 
with the Consolidated HMS FMP, once the objective of the time/area 
closure had been met. However, NMFS must balance many factors when 
considering whether to re-open or to modify the HMS time/area closures. 
These include the bycatch of protected species, non-target species, and 
undersized fish. Also, socio-economic issues must be considered. A 
reexamination of the PLL closed areas, using information that has 
become available since the implementation of circle hooks in the PLL 
fishery, may be warranted because much of that information was not 
available during the recent development of the Consolidated HMS FMP.
    NMFS has received an application for an EFP to collect data from 
PLL vessels in the East Florida Coast and Charleston Bump closed areas 
to gather data on circle hook performance, and target and bycatch 
species composition. This information could be compared with historical 
PLL logbook and observer data to determine if the new PLL practices 
warrant a review of fishing in

[[Page 31699]]

the PLL closed areas. NMFS published a notice in the Federal Register 
on March 13, 2007, to solicit public comments on the EFP request. NMFS 
published an additional notice in the Federal Register on April 11, 
2007, extending the comment period to April 25, 2007. The comment 
period was extended again to June 20, 2007, through publication of a 
notice in the Federal Register on May 7, 2007, based upon a request by 
the South Atlantic Fishery Management Council and others.
    Finally, the Agency recently established new criteria in the 
Consolidated HMS FMP to be considered when deciding whether to add, 
change, or modify time/area closures. These criteria include, but are 
not limited to, the following: (1) ESA related issues, concerns, or 
requirements; (2) bycatch rates of protected species, prohibited HMS, 
or non-target species; (3) bycatch rates and post-release mortality 
rates of bycatch species associated with different gear types; (4) new 
or updated landings, bycatch, and fishing effort data; (5) evidence or 
research indicating that changes to fishing gear and/or fishing 
practices can significantly reduce bycatch; (6) social and economic 
impacts; and (7) the practicability of implementing new or modified 
closures compared to other bycatch reduction options. For ICCAT managed 
species, NMFS will also consider the overall effect of U.S. catches on 
that species before implementing time/area closures. If the public 
believes that modification of an existing closure or the establishment 
of a new closure is warranted based upon these criteria, they may 
submit a petition for rulemaking to NMFS. It should contain sufficient 
information to consider the substance of the petition. The specific 
information that should be included in the petition is described in the 
Consolidated HMS FMP. Based upon the results of such an analysis, NMFS 
will determine whether to reopen or modify the PLL closed areas.
    Comment 45: NMFS must not implement any new regulations that would 
allow PLL fishing in the closed areas, or increase longline activity 
for the U.S. commercial fleet in the vicinity of the U.S. EEZ. These 
PLL closures are the only reason why swordfish abundance has increased. 
The recreational fishery has improved for every pelagic species, not 
just swordfish, since the PLL time/area closures were first 
implemented. These areas are extremely important management features 
that benefit swordfish, billfish, tuna, and protected species and must 
remain intact. There are still many undersized swordfish in these 
areas. If NMFS allows PLL vessels in the closed areas, the swordfish 
fishery will collapse again.
    Response: As indicated in response to Comment 44, the current time/
area closures were implemented for specific management objectives. NMFS 
may modify existing closures, as appropriate, consistent with the FMP, 
once the objective of the time/area closure has been met. Additionally, 
because fisheries, fishing gear, fishing practices, and stock status 
change over time, NMFS must periodically examine the continued need for 
the existing time/area closures. The criteria that NMFS will consider 
are described in the response to Comment 44. Based upon the results of 
such an analysis, NMFS will decide whether or not to reopen or modify 
the PLL closed areas.
    Comment 46: Swordfish abundance has increased because of the PLL 
closed areas. The DeSoto Canyon provides Florida recreational fishermen 
in the Gulf of Mexico with better fishing opportunities. The 
Mississippi Canyon and Green Canyon are also biologically rich areas. 
Perhaps NMFS should consider reopening portions of the DeSoto Canyon in 
exchange for closing portions of the Mississippi or Green Canyons. This 
could benefit species that reside or transit the western Gulf of 
Mexico.
    Response: These are options that NMFS could consider in the future. 
In analyzing the time/area closures, NMFS will strive to balance 
protection for overfished species, undersized fish, threatened and 
endangered species, and marine mammals, while providing opportunities 
for financially solvent fisheries.
Recommendations for Future Management
    Comment 47: To increase swordfish landings and/or improve 
management, NMFS should consider restructuring its HMS permit system. 
Specific suggestions include: (1) place swordfish in the General 
Category tuna permit; (2) allow Incidental swordfish permits to be 
converted to directed swordfish permits; (3) remove the restriction 
that requires three permits to fish for swordfish; (4) reinstate lapsed 
permits in the Barnegat Light area; (5) allow for the leasing of 
inactive permits; (6) allow all vessels that hold an Illex moratorium 
permit to apply for an Incidental swordfish permit; (7) implement a 
commercial rod and reel permit (not limited access) that would allow 
sport fishermen to sell their swordfish; and (8) issue more swordfish 
permits.
    Response: NMFS notes these very specific and informative comments 
from the public and will take them into consideration in the future, as 
warranted.
    Comment 48: If U.S. fishermen substantially increase their 
swordfish catch from July to October, along with the Canadian 
production, the market will not be able to support all of the fresh 
product in the first couple of years, which is when we need to make a 
difference. To retain the U.S. swordfish quota, NMFS should allow U.S. 
vessel owners to deploy large freezer vessels (50 meters or larger with 
-60[deg] C freezers) to substantially increase catches without 
destroying the fresh swordfish market. These types of vessels can stay 
at sea for two to three months at a time. The Grand Banks are fishable 
from June-November, so these vessels could take two trips annually to 
the Grand Banks, and then fish offshore in the south during winter 
months, freezing the entire catch at -60[deg] C. The vessels would be 
fishing rather than steaming back and forth to the dock. The landed 
fish would be sold on an entirely different market than fresh product. 
This is what the United States needs to catch its swordfish quota, and 
it would not affect local fresh markets. It would also create an 
exportable product. To deploy a vessel of this caliber in time for the 
2007 Grand Banks season, U.S. vessel captains need permission to 
contract or lease an existing, ready-to-fish vessel. This would be a 
vessel flagged outside of the United States. For the short term (three 
to five years), U.S. owners should be allowed to obtain existing 
foreign-flagged vessels. Then, after three to five years, they should 
be allowed to bring these same vessels under U.S. ownership and flag. 
It would be necessary to consider permits for these vessels too. 
Perhaps NMFS should allow for a 50-percent or larger increase, instead 
of a 35-percent increase in vessel upgrading.
    Response: As indicated in the response to Comment 36, NMFS may 
consider the concept of freezer vessels fishing for swordfish. Under 
the final management measures, some vessels potentially could be 
upgraded, through conversion or permit transfer, to be utilized as 
freezer vessels, depending upon the size of the baseline vessel. In the 
longer-term, it may be necessary to further analyze the potential 
impacts associated with a freezer fleet to determine the appropriate 
number of vessels, permit qualification criteria, and environmental 
impacts. Under the Magnuson-Stevens Act, foreign vessels may only 
harvest the portion of the

[[Page 31700]]

optimum yield that will not be harvested by vessel of the United 
States. Foreign vessels fishing in the U.S. EEZ must also comply with 
the requirements of Title II of the Magnuson-Stevens Act.
    Comment 49: It is important to open the Windward Passage and the 
area off the Yucatan to allow a larger percentage of the Atlantic 
swordfish fleet to fish in the winter.
    Response: The Windward Passage is a strait in the Caribbean Sea, 
between Cuba and Haiti. The waters off the Yucatan peninsula are 
largely within Mexican jurisdiction. Therefore, NMFS does not have the 
authority to open these waters to U.S. vessels.
    Comment 50: The swordfish market has collapsed in terms of price. 
The problem is not with the fish, but with the prices that commercial 
longliners receive for their swordfish. These boats fish for tunas 
because of the price. There is a limited U.S. market for fresh 
swordfish. Therefore, market revitalization to increase public demand 
for swordfish is critical. Promotional marketing of domestic swordfish 
would help reduce imports. Also, NMFS must combat media perceptions 
that swordfish are unsafe due to mercury, and that swordfish are 
endangered. U.S. fishermen get hurt every year by swordfish imports 
from Canada, especially in September when the domestic ex-vessel price 
plummets from over $4/lb to around $2/lb.
    Response: Market considerations are important. In October 2006, 
NMFS announced the results of a government-sponsored study conducted by 
the National Academy of Sciences addressing seafood safety and the 
health benefits associated with eating seafood. NMFS intends to 
continue to distribute fact-based information to the public regarding 
seafood consumption. For example, it is important to publicize the fact 
that swordfish are almost fully rebuilt to refute persistent 
perceptions that the stock is severely overfished. Exploring potential 
cooperative efforts with the seafood industry may further serve to 
promote domestic markets. Also, NMFS published a final rule in the 
Federal Register (April 11, 2007, 72 FR 18105) that provides for the 
establishment of Seafood Promotion Councils designed to help market and 
promote seafood to U.S. consumers, to eliminate confusion by providing 
the public with accurate information on the health benefits of eating 
seafood, and to assist the seafood industry to better market its 
products.
    Comment 51: NMFS must stop swordfish imports from flooding the U.S. 
market with cheap product. The United States should require that 
imported pelagic species be harvested according to the same 
conservation standards as domestic fish.
    Response: NMFS continues to conduct bilateral and multilateral 
outreach efforts with foreign countries, particularly regarding the use 
of circle hooks. In addition, the international provisions of the newly 
re-authorized Magnuson-Stevens Act will support the United States' 
continued efforts at the international level to pursue conservation 
measures comparable to the United States, while taking into account 
differing conditions.
    Comment 52: NMFS should establish in-season adjustments to PLL 
closed areas to improve the ability of the longline fleet to better 
harvest the swordfish quota. Flexibility is necessary to adjust pre-
established criteria, as is currently conducted in the bluefin tuna 
fishery. For example, in the Charleston Bump Area, the average 
swordfish size is increasing. The objective of that closed area has 
been met, but the area is still closed due to a lack of flexibility in 
the regulations. The swordfish industry has been denied a reasonable 
opportunity to catch a greater share of the U.S. quota, because NMFS 
lacks the authority to modify or waive closures on a real-time basis.
    Response: In-season adjustments are pre-specified modifications to 
existing management measures, and are typically used to change 
subquotas, retention limits, or some time/area closures such as 
restricted fishing days (RFDs,) based on landing trends, seasonal 
distribution of the species, availability, abundance, migration 
patterns, and other factors. The impacts associated with in-season 
adjustments are limited, and have already been analyzed in other 
supporting documents. For time/area closures that are more significant 
in scope, NMFS specified seven criteria in the Consolidated HMS FMP 
that may be considered when implementing or adjusting time/area 
closures. These are described in the response to Comment 44.
    Comment 53: The United States needs to show other countries that 
circle hooks are reducing bycatch while fostering an economically 
viable fishery. This would encourage other countries to use them and 
reduce bycatch throughout the Atlantic Ocean.
    Response: NMFS has conducted, and will continue to conduct, 
bilateral and multilateral outreach efforts with foreign countries 
regarding the use of circle hooks. In 2004, NMFS demonstrated the use 
of circle hooks at ICCAT. In 2005, ICCAT passed a non-binding measure 
regarding the use of circle hooks. These types of activities, in 
combination with economically viable domestic fisheries, may be an 
effective way to reduce bycatch throughout the Atlantic Ocean.
    Comment 54: NMFS received comments regarding the need to either 
increase or decrease the swordfish minimum size requirement. Comments 
include: The swordfish minimum size should be increased to at least 55 
inches. This would allow the fish to grow larger and rebuild the stock. 
NMFS should reduce the minimum swordfish size to increase catches. This 
would be more effective than the preferred alternatives at attaining 
the U.S. quota.
    Response: The current minimum size and weight for swordfish is 29 
inches (73 cm) from cleithrum to caudal keel (CK); 47 inches (119 cm) 
lower jaw fork length (LJFL); or 33 lb (15 kg) dressed weight (dw). 
These minimum sizes are established by ICCAT. However, the United 
States does have some discretion to negotiate a higher minimum size, 
considering domestic requirements. NMFS will consider this in the 
future, as appropriate.
    Comment 55: We do not support enacting measures to revitalize the 
PLL fishery, per se, because the gear results in intolerable levels of 
bycatch of protected and other species. Therefore, NMFS is urged to 
investigate other gears that will allow the United States to capture 
its swordfish quota without excessive bycatch.
    Response: This final rule is intended to facilitate the ability of 
U.S. vessels to fully harvest the domestic swordfish quota. The PLL 
fleet is a major component of the swordfish fishery. Therefore, NMFS 
believes that appropriate measures to revitalize the domestic PLL fleet 
are necessary, as are other measures to increase swordfish landings in 
other sectors. The number of active vessels that reported fishing with 
PLL gear has declined by approximately 68 percent since 1997, the last 
year that the United States fully harvested its swordfish quota. 
However, in that same time period, the swordfish stock has rebuilt from 
65 percent of Bmsy to 99 percent of Bmsy. This 
indicates that a balanced approach is necessary to increase swordfish 
landings, while ensuring that the fishery remains sustainable and that 
bycatch is minimized to the extent practicable. The HMS PLL fishery is 
currently subject to many regulations that were implemented to reduce 
bycatch and bycatch mortality. These include circle hook requirements, 
bait restrictions, mandatory possession and use of careful handling and 
release equipment, protected species safe handling, release, and 
identification certification

[[Page 31701]]

workshops, and time/area closures. In addition, PLL vessels must 
utilize VMS, submit logbook reports, and adhere to retention limits, 
quotas, minimum sizes, prohibited species restrictions, and other 
regulations. The measures in this final rule are anticipated to 
modestly increase swordfish landings, with only minor environmental 
impacts. NMFS will consider additional actions in the future. In the 
meantime, NMFS encourages investigations of other gears that will allow 
the United States to fully capture its swordfish quota without 
excessive bycatch.
    Comment 56: NMFS should allow greenstick gear in the Longline and 
General category tuna fisheries because the reduction in billfish 
bycatch in the tuna fishery may significantly offset any potential 
negative impact that swordfish revitalization may have on billfish 
bycatch. Greenstick gear is the most environmentally friendly method to 
commercially harvest tunas (including bluefin tuna) because it 
minimizes the discard mortality of undersized tunas and virtually 
eliminates any billfish bycatch.
    Response: NMFS did not modify the list of authorized gears to 
include green stick gear in the Consolidated HMS FMP due to confusion 
over the gear and concerns regarding bluefin tuna stock status. Rather, 
NMFS clarified the use of the gear and stated it would conduct 
additional outreach regarding its use. NMFS is continuing to examine 
the use of green stick gear and its impact on the environment, as well 
as its social and economic benefits and consequences.
    Comment 57: NMFS should implement the same regulations for 
swordfish that currently apply to yellowfin tuna in the CHB fishery. 
NMFS should allow charter boats to conduct either charter or commercial 
trips and allow the swordfish to be sold.
    Response: HMS CHB vessels may sell up to three yellowfin tuna per 
person per day when engaged on a for-hire trip, and there are no limits 
on the amount of yellowfin tuna that may be retained and sold when on a 
non for-hire trip. CHB vessels may not sell swordfish, unless the 
vessel also possesses a swordfish Handgear permit. This restriction was 
first implemented when swordfish were overfished, and the United States 
was fully harvesting its quota prior to 1997. Because these conditions 
have changed, NMFS may further analyze and reconsider the restriction 
in the future.
    Comment 58: Please consider limiting or banning buoy gear. We 
oppose granting additional buoy permits, and favor 100 percent VMS 
coverage for vessels fishing with buoy gear. Other restrictions on the 
buoy gear fishery must be considered, including circle hook 
requirements and geographical restrictions. Fishermen are concerned 
about the significant growth of this fishery in the last few months. 
Gear conflicts are a constant concern by both commercial and 
recreational interests. Keeping the buoy gear fishery small, with 
controlled growth, would reduce conflicts and allow for a sustainable 
fishery.
    Response: NMFS received many comments regarding the buoy gear 
fishery, especially as it occurs in the Straits of Florida. The public 
is reminded that, prior to 2006, the HMS buoy gear fishery was largely 
unregulated. NMFS significantly restricted the fishery in the 
Consolidated HMS FMP by authorizing buoy gear only for swordfish 
Handgear and Directed permit holders, limiting the number of floatation 
devices that could be deployed, limiting the number of hooks per buoy 
gear, and requiring that monitoring devices be attached to each gear. 
In addition, NMFS amended the definition of handline by requiring that 
they remain attached to vessels. The effect of these regulations was to 
limit the buoy gear fishery only to commercial fishermen, reduce the 
likelihood of lost gear, and provide for the collection of logbook 
information. As logbook and other research information become 
available, NMFS will consider whether additional regulations or 
restrictions are necessary.
    Comment 59: We oppose the issuance of any type of commercial 
swordfish permit to current recreational fishermen to fish in the 
closed zones. Making numerous commercial permits available would cause 
far too many buoy gear conflicts with the recreational fleet in the 
Florida Straits.
    Response: All commercial swordfish permits are limited access, 
which means that no new permits are being issued. However, persons may 
obtain an existing commercial limited access fishing permit through the 
permit transfer regulations specified at Sec.  635.4(l). The PLL and 
BLL closed areas apply only to those specific gears, and are not for 
the exclusive use of recreational fishing. For example, in the East 
Florida Coast closed area, holders of swordfish Handgear or Directed 
permits may fish for swordfish using handgear and buoy gear. Similarly, 
commercial shark permit holders may fish for sharks using BLL gear in 
this area. As logbook and other research information regarding buoy 
gear become available, NMFS will consider whether additional 
regulations or restrictions are necessary.
    Comment 60: Careful handling and release equipment should be 
required for HMS CHB, especially in the Gulf of Mexico. Terminal tackle 
should be removed to help increase post-release survival.
    Response: Terminal tackle should be removed from all species prior 
to their release in order to increase post-release survival. Current 
HMS regulations require that all fish that are not retained must be 
released in a manner that will ensure the maximum probability of 
survival, but without removing the fish from the water. Billfish that 
are not retained must be released by cutting the line near the hook or 
by using a dehooking device, in either case without removing the fish 
from the water. NMFS' Southeast Regional Office (SERO) recently 
published Amendment 18A to the Gulf of Mexico Reef Fish Management Plan 
on August 9, 2006 (71 FR 45428). Amendment 18A required that all for-
hire reef fish permitted vessels must possess and utilize release gear 
and careful handling protocols to reduce injuries to sea turtles and 
smalltooth sawfish. SERO estimated that 1,500 [dash] 1,600 for-hire 
reef fish vessels would be affected by this requirement. Because many 
reef fish permitted for-hire vessels in the Gulf of Mexico also possess 
an HMS CHB permit, they are already required to possess and utilize 
careful handling and release equipment. Depending upon future analyses, 
NMFS may consider requiring other HMS permitted vessels to possess and 
utilize careful handling and release equipment.
    Comment 61: NMFS should keep the live bait prohibition for PLL 
vessels in the Gulf of Mexico, because live bait results in higher 
rates of white marlin bycatch. If white marlin is listed under the ESA, 
most fisheries will be out business.
    Response: The live bait prohibition for HMS PLL vessels is not 
being modified in this final rule. However, NMFS has received several 
requests to reconsider the regulation because mandatory circle hooks 
have effectively reduced marlin bycatch and bycatch mortality. As more 
information becomes available through logbooks, observer data, and 
research efforts, NMFS may re-evaluate this requirement.
    Comment 62: Any effort to increase U.S. recreational swordfish 
landings is worthless unless adequate data collection methods are in 
place to monitor and report these landings. Accurate data is important. 
NMFS should reach out to the recreational fishing industry to work on 
these improvements. Outside of Florida, recreational swordfish landings 
are considered rare events and are not likely

[[Page 31702]]

to be recorded by traditional data collections like the Marine 
Recreational Fisheries Statistical Survey (MRFSS), the Large Pelagic 
Survey (LPS), and the Recreational Billfish Survey (RBS). MRFSS is 
fatally flawed, especially for swordfish. It is difficult for MRFSS 
surveyors to see if people are swordfish fishing because they are 
typically caught at night, oftentimes on a tuna or snapper/grouper 
trip. Therefore, there may not be many swordfish recorded in the MRFSS 
survey. NMFS should start using CHB logbooks to assess recreational 
swordfish landings. Additionally, NMFS should consider using a catch 
card program for swordfish similar to programs used by Maryland and 
North Carolina for BFT.
    Response: Accurate recreational landings data are important. For 
this reason, all non-tournament swordfish landings by HMS Angling 
category permit holders are required to be reported by calling (800) 
894-5528. In Maryland and North Carolina, vessel owners should report 
their swordfish landings at state-operated reporting stations. For 
information on these state's reporting stations, please call (410) 213-
1531 (MD) or (800) 338-7804 (NC). Swordfish landed in a registered 
tournament may be reported by the tournament operator. However, vessel 
owners are responsible for reporting if the tournament operator does 
not. HMS CHB permit holders must complete a logbook with landings 
information and submit it to NMFS, if selected. Finally, the newly re-
authorized Magnuson-Stevens Act has new MRFSS-related provisions which 
NMFS will address, as required under the Act.
    Comment 63: NMFS should consider allowing recreational anglers 48 
hours to report their recreational swordfish and billfish catches, 
instead of 24 hours. This would increase recreational reporting and, 
thus, recorded U.S. swordfish landings.
    Response: Currently, all recreational landings of swordfish must be 
reported to NMFS within 24 hours of landing. This ensures timely and 
accurate data collection. NMFS may consider extending the time period, 
if warranted, if it does not compromise data collection. The Agency is 
also currently testing an on-line reporting system to facilitate 
recreational reporting.
    Comment 64: NMFS should allow recreational fisherman to 
retroactively report previous swordfish landings. It would 
substantially increase historical recreational swordfish catches.
    Response: The recreational reporting requirement has been in place 
since 2003. NMFS is concerned that data quality and accuracy would be 
compromised if an amnesty program were implemented to allow for 
retroactive reporting of recreational landings. Unless the angler kept 
very detailed catch records, much of the data would be based upon 
personal recollection and have limited usefulness. It would also be 
very difficult to verify the reports.
    Comment 65: NMFS needs to employ a tagging system where only legal, 
tagged swordfish may be sold and distributed. This would help to track 
the removal of swordfish biomass.
    Response: NMFS received numerous comments regarding the illegal 
sale of recreationally caught swordfish. A tagging system could reduce 
this activity. Tags have been used effectively in the bluefin tuna 
fishery for many years, and could be appropriate for the swordfish 
fishery. However, domestic swordfish landings have historically been 
much higher than bluefin tuna landings, so the logistics associated 
with administering a swordfish tagging program would have to be 
addressed.
    Comment 66: Recreational fisherman need to have the current 
regulations presented to them in a way that makes them understand how 
to identify catches, know if they are legal, and know if they need to 
be reported. Perhaps mandatory workshops should be required for 
recreational fishermen. NMFS could also include information on fishing 
regulations and species identification with permit mailings or when 
renewing permits.
    Response: It is important for recreational fishermen to know and 
understand the regulations that affect their fishery. Due to the size 
and diversity of the HMS recreational fishing community, and because 
some anglers may fish only a few times a year, this sector presents a 
unique challenge. In addition to current outreach methods such as the 
HMS website and the e-mail list, additional outreach efforts are being 
explored with local newspapers, magazines, and other websites. 
Mandatory workshops for recreational anglers are not being considered 
at this time because they would likely be expensive and difficult to 
administer, given the large number of recreational anglers.
    Comment 67: Socio-economic data on recreational swordfishing is 
almost non-existent. NMFS must thoroughly evaluate socio-economic 
ramifications before making any major changes in swordfish fishery 
dynamics. This is a requirement of the Magnuson-Stevens Act.
    Response: The recreational swordfish fishery has developed 
relatively rapidly within the past three to six years, as the swordfish 
stock has continued to rebuild. For this reason, detailed socio-
economic data are limited. However, NMFS collects mandatory 
recreational swordfish landings data and mandatory swordfish tournament 
registration forms. In addition, NMFS has received many comments from 
recreational fishery participants in recent years regarding a variety 
of proposed management measures. Swordfish fishing is an important and 
growing recreational activity off the southeast coast of Florida, and 
is starting to spread to other regions as well. NMFS thoroughly 
considered verifiable information available on the socio-economic 
ramifications of the final management measures on the recreational 
swordfish fishing community during this rulemaking. As the swordfish 
stock continues to rebuild and the recreational fishery continues to 
grow, it will be necessary to obtain more socio-economic data regarding 
this activity.

Questions Regarding the U.S. ICCAT Swordfish Quota

    Comment 68: How many years is the current swordfish quota from 
ICCAT valid for?
    Response: In 2006, ICCAT-recommended a 3,907 mt (ww) U.S. North 
Atlantic swordfish quota for 2007 and 2008.
    Comment 69: Are dead discards counted against the ICCAT swordfish 
quota or used in stock assessments?
    Response: Yes. Estimated dead discards from scientific observer and 
logbook sampling programs are counted against the U.S. North Atlantic 
swordfish quota, and are used in the swordfish stock assessments 
conducted by ICCAT's SCRS.
    Comment 70: If the United States loses its ICCAT swordfish quota, 
would it affect recreational fisheries in this country as well?
    Response: It is possible that recreational fisheries could be 
directly or indirectly affected if the United States loses a portion of 
its swordfish quota. Recreational swordfish landings are included 
within the Incidental quota allocation, currently at 300 mt. Depending 
upon the size of any potential reduction in the overall U.S. swordfish 
quota, the Incidental quota allocation or recreational retention limits 
could be reduced correspondingly. Indirect impacts could occur if 
foreign nations are given a larger quota share, and those foreign 
vessels exert additional fishing effort on swordfish without measures 
to reduce the bycatch of protected species, undersized swordfish, and 
billfish. This

[[Page 31703]]

is one of the primary reasons why NMFS believes it is imperative to 
retain the historical U.S. North Atlantic swordfish quota share.
    Comment 71: If the U.S. swordfish quota is not being caught by 
2009, does NMFS have a contingency plan?
    Response: NMFS intends to continue monitoring U.S. swordfish 
landings and may adjust management measures in the future to provide 
additional opportunities for U.S. vessels to land the domestic 
swordfish quota.

Changes from the Proposed Rule

    In addition to minor edits, NMFS has made the following two changes 
to the proposed rule.
    1. In the final rule, at Sec.  635.4(l)(2), NMFS has modified 
paragraphs (ii)(B), and (ii)(C) by removing language specifying that a 
vessel's horsepower, length overall, gross registered tonnage, and net 
tonnage may be increased only once, subsequent to the issuance of a 
limited access permit. Also, in the final rule at Sec.  635.4(l)(2), 
paragraph (ii)(C) modifies the current regulations by removing language 
specifying that if any of the three specifications of vessel size are 
increased, any increase in the other two must be performed at the same 
time. These changes were made to provide additional flexibility for 
permit holders to incrementally upgrade their vessels, and to expedite 
the issuance and renewal of HMS permits. Under current regulations, 
NMFS must review over seven years worth of permit renewal information 
for each application submitted by the owner of an upgraded vessel to 
determine if the original vessel, or its replacement, has already been 
upgraded, even if the upgraded vessel is within the allowable upgrade 
specifications. If an upgrade has already occurred, several pieces of 
correspondence are often necessary to resolve the situation. NMFS 
believes that removing the regulation specifying that a vessel may only 
be upgraded once will not compromise the intent of the vessel upgrading 
restrictions and will have limited ecological impacts, because all of 
the upgraded vessels would still need to comply with the allowable 
upgrade specifications. This modification is within the range of 
alternatives considered in the EA/RIR/IRFA, and will provide additional 
flexibility for all HMS limited access permit holders to incrementally 
upgrade their vessels, while expediting the issuance and renewal of HMS 
permits.
    2. In the final rule at Sec.  635.4(l)(2)(x), NMFS has clarified 
the procedures, and specified the required permits, to qualify for the 
35 percent limited access vessel size upgrade allowance, with no 
restrictions on horsepower. These changes were made to better inform 
the public of the requirements, and to facilitate implementation of the 
new regulations.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C., 1801 et seq., and ATCA, 16 U.S.C. 971. NMFS has 
determined that the final rule and its related Environmental Assessment 
(EA) are consistent with the national standards of the Magnuson-Stevens 
Act, other provisions of the Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA, a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS' responses to 
those comments, and a summary of the analyses completed to support the 
action. The full FRFA and analysis of economic and ecological impacts 
are available from NMFS (see ADDRESSES). A summary of the information 
presented in the FRFA follows.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
the Agency to state the objective and need for the rule. As stated in 
the proposed rule, the objective of this final rule is to provide a 
reasonable opportunity for U.S. vessels to more fully harvest the 
ICCAT-recommended domestic swordfish quota, consistent with the 
Magnuson-Stevens Act and ATCA, by modifying North Atlantic swordfish 
retention limits and HMS limited access vessel upgrading restrictions.
    Section 604(a)(2) of the RFA requires the Agency to summarize 
significant issues raised by the public comments in response to the 
IRFA, summarize the assessment of the Agency of such issues, and state 
any changes made in the rule as a result of such comments. NMFS 
received several comments on the proposed rule and draft EA during the 
public comment period. A summary of these comments and the Agency's 
response are included in this final rule. NMFS did not receive any 
comments that were specific to the IRFA, but did receive a limited 
number of comments related to economic issues and concerns. These 
comments are responded to with the other comments (see Comments 20, 34, 
and 37). The specific economic concerns are also summarized here.
    A comment was received expressing concern that increasing the 
Incidental swordfish retention limit would put more swordfish in the 
market, and therefore have negative economic consequences by reducing 
the price that Directed swordfish permit holders receive for their 
swordfish. NMFS recognizes that an increase in the volume of 
incidentally-caught swordfish could impact swordfish prices received by 
all permit holders. However, some constituents have indicated to NMFS 
that the current 2-fish Incidental retention limit does not justify the 
additional effort and costs of fishing for, or landing, swordfish, and 
then bringing it to market. These constituents stated that the current 
2-fish Incidental retention limit has contributed to an inadequate 
infrastructure and marketing channel in some areas that is not suitable 
for handling swordfish. A 30-fish retention limit should provide more 
of an incentive to land and market incidentally-caught swordfish, 
without a significant disruption to swordfish prices. Increased 
participation by Incidental swordfish permit holders could help to 
develop a more consistent supply of swordfish, and thus lead to a more 
robust market for swordfish products, and help to stabilize prices.
    NMFS also received public comment regarding the availability of 
capital to pay for vessel upgrading. There was concern that relaxing 
the vessel upgrading restrictions would not revitalize the swordfish 
fishery, because many fishermen could not afford to upgrade their 
vessels, or were unable to obtain loans for vessel upgrades. However, 
other constituents identified the current vessel upgrading restrictions 
as one factor, among several, that is limiting the ability of the U.S. 
vessels to more fully harvest the U.S. swordfish quota. NMFS recognizes 
that each business is unique. Some vessel owners may choose to upgrade 
their vessels, whereas others will not. Owners are not required to 
upgrade vessels under this final rule. The option to upgrade could 
improve the flexibility of some vessel owners to make individual 
business decisions, based upon their unique circumstances. This could 
result in larger, more modern, U.S. swordfish vessels, and increased 
swordfish landings.
    Finally, some commenters indicated that a 35 percent upgrade in 
vessel size was not sufficient for their business purposes. NMFS 
believes that a 35 percent increase in vessel size, which would allow 
an ``average'' 55-foot vessel to be upgraded to a 69 [dash] 74-foot 
vessel depending upon whether a vessel has already been upgraded by 10 
percent, is a meaningful increase in vessel size. There are 
approximately 50

[[Page 31704]]

vessels greater than 70 feet in length that would qualify for the new 
upgrading provisions. These vessels could be upgraded to more than 90 
feet in length and possibly be converted to freezer vessels, upgrades 
which some commenters suggested are necessary. NMFS believes it is 
important to keep fleet capacity commensurate with resource abundance 
to ensure the sustainability of the swordfish fishery. Until additional 
analysis is completed and other logistical issues are resolved, NMFS 
believes that it is necessary to keep overall fleet capacity within 
some limits.
    No changes were made to the final rule as a result of these 
comments.
    Section 604(a)(3) of the RFA requires the Agency to describe and 
estimate the number of small entities to which the final rule will 
apply. NMFS considers all commercial permit holders to be small 
entities as reflected in the Small Business Administration's (SBA) 
criteria (gross receipts less than $4.0 million, the SBA size standard 
for defining a small versus a large business entity). The final action 
to increase incidental swordfish retention limits could directly affect 
48 vessel owners possessing valid Incidental swordfish permits. The 
final actions to modify recreational swordfish retention limits could 
directly affect approximately 4,173 HMS Charter/headboat permit holders 
and 25,238 HMS Angling category permit holders. The proposed action to 
modify PLL vessel upgrading restrictions could directly affect 
approximately 176 vessel owners possessing valid swordfish permits 
(i.e., concurrently possessing Directed or Incidental swordfish 
permits, Directed or Incidental shark permits, and an Atlantic Tunas 
Longline category permit). In total, the final actions could directly 
affect 29,587 HMS permit holders. Of these, 4,349 commercial permit 
holders (the combined number of HMS Charter/headboat permit holders and 
valid swordfish-permitted PLL vessel owners) are considered small 
business entities according to the Small Business Administration's 
standard for defining a small entity (Angling category permit holders 
are not considered businesses). Other small entities involved in HMS 
fisheries such as processors, brokers, ship builders, tackle shops, 
bait suppliers, marinas, and gear manufacturers might also be 
indirectly affected by the final regulations. However, the final rule 
does not apply directly to them. Rather, it applies only to permit 
holders and fishermen.
    Section 604(a)(4) of the RFA requires NMFS to describe the 
projected reporting, record-keeping, and other compliance requirements 
of the final rule, including an estimate of the classes of small 
entities that will be subject to the requirements of the report or 
record. This final rule does not contain any new reporting, 
recordkeeping, or other compliance requirements that will require new 
Paperwork Reduction Act filings. Vessel owners and operators must 
comply with the revised swordfish retention limits and upgrading 
regulations in the same manner that they have been required to comply 
with existing swordfish retention limits and upgrading regulations. 
However, the regulations contained in this rule are less restrictive 
than the current provisions.
    Section 604(a)(5) of the RFA requires the Agency to describe the 
steps taken to minimize the significant economic impact on small 
entities consistent with the stated objectives of the 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. 
Additionally, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four 
general categories of ``significant'' alternatives that would assist an 
agency in the development of significant alternatives. These categories 
of alternatives are:
    1. Establishment of differing compliance or reporting requirements 
or timetables that take into account the resources available to small 
entities;
    2. Clarification, consolidation, or simplification of compliance 
and reporting requirements under the rule for such small entities;
    3. Use of performance rather than design standards; and
    4. Exemptions from coverage of the rule for small entities.
    As noted earlier, NMFS considers all commercial permit holders to 
be small entities. In order to meet the objectives of this final rule, 
consistent with the Magnuson-Stevens Act, ATCA, and the ESA, NMFS 
cannot exempt small entities or change the compliance requirements only 
for small entities. Thus, there are no alternatives that fall under the 
first and fourth categories described above. In addition, none of the 
alternatives considered would result in additional reporting or 
compliance requirements (category two above) because all of the 
alternatives considered were intended to increase the domestic harvest 
of Atlantic swordfish, while maintaining important bycatch reduction 
measures. With regards to category three above, all of the alternatives 
for modifying vessel upgrading restrictions are based upon performance 
standards. In particular, the selected alternative does not mandate a 
particular change to vessel design, but rather provides additional 
flexibility for vessel owners to decide how best to upgrade their 
vessels.
    NMFS analyzed six different alternatives to increase swordfish 
retention limits, and five different alternatives to modify HMS limited 
access vessel upgrading restrictions. As described below, NMFS has 
provided justification for the selection of the preferred alternatives 
to achieve the desired objectives.
    Alternative 1a is considered the no action, or status quo, 
alternative for modifying recreational and incidental swordfish 
retention limits. Under current regulations, vessels issued valid 
Incidental swordfish limited access permits, other than those in the 
squid trawl fishery, are allowed to retain, possess or land no more 
than two swordfish per vessel per trip in or from the Atlantic Ocean 
north of 5[deg] N. lat. Vessels issued valid Incidental swordfish 
limited access permits that participate in the squid trawl fishery are 
allowed to retain, possess, or land no more than five swordfish per 
trip from the same area. HMS Angling and Charter/headboat vessel permit 
holders are allowed to retain one North Atlantic swordfish per person, 
up to three per vessel per trip.
    Under alternative 1a, there would be no change in the current 
baseline economic and social impacts associated with previously 
implemented North Atlantic swordfish retention limits. This alternative 
was not selected because it may be contributing to persistent 
underharvests of the domestic swordfish quota. Nineteen percent of 
trips reported by Incidental swordfish permit holders in the HMS 
logbook from 2002 - 2005 reported swordfish discards. If any of these 
swordfish discards were attributable to exceeding the current two fish 
limit, then these discards could potentially represent lost revenues 
associated with the status quo alternative. The current recreational 
swordfish retention limit of one fish per person, up to three per trip, 
may be lowering the demand for charter and headboat trips, especially 
when several people are on board, since each person may not be able to 
retain a swordfish.
    Under alternative 1b, the North Atlantic swordfish retention limit 
for vessels issued valid Incidental swordfish limited access permits 
would be removed, except that, for vessels issued valid Incidental 
swordfish permits that participate in the squid

[[Page 31705]]

trawl fishery, the limit would be increased to ten, until 70 percent of 
the adjusted domestic semi-annual North Atlantic swordfish quota is 
projected to be landed. After 70 percent of the directed semi-annual is 
projected to be landed, the Incidental swordfish retention limit would 
revert back to two swordfish per trip, and five swordfish per trip for 
squid trawl vessels, for the remainder of the semi-annual period.
    Alternative 1b was not selected because it could potentially have 
the most significant adverse ecological impacts if vessel owners with 
Incidental swordfish permits alter their strategies and choose to 
deploy additional sets to target swordfish. The potential economic gain 
from this alternative would be associated with increased landings from 
two swordfish per trip up to as many as 605 swordfish per trip (the 
highest number of swordfish reported landed by a directed vessel) minus 
what vessels could make tuna fishing during the same time if they 
switch entirely to swordfish fishing. Using the mean weight of 
swordfish landed in 2005 of 75.7 lb and the mean ex-vessel price of 
$3.71 per lb in 2005, the estimated value of potentially retaining up 
to an additional 603 swordfish could be as high as $169,351 per trip. 
However, this should only be considered an upper bound, especially 
because it does not take into account reductions in the retention of 
other species that might occur in order to make room to hold swordfish 
on the vessel. More typically, vessels issued Directed swordfish 
permits during the period from 2002 to 2005 kept an average of 60 to 77 
swordfish per trip. That would equate to potentially $16,289 to $21,064 
in additional revenue per trip for Incidental swordfish permit holders 
that engage in directed fishing for swordfish, assuming their 
capability to harvest swordfish is the same as the Directed swordfish 
permit holders.
    Alternative 1b would also increase the swordfish retention limit 
from 5 to 10 swordfish for vessels issued valid Incidental swordfish 
limited access permits that participate in the squid trawl fishery. 
This effectively doubles the current retention limit for these vessels. 
From 1998 [dash] 2004, all squid trawl vessels landed a combined 
average of 6.3 mt (ww) of swordfish per year. Increasing the limit for 
squid trawl vessels by an additional five swordfish per trip could 
potentially increase total annual landings of swordfish by all squid 
trawl vessels to 12.6 mt (ww) in total per year. This increase of 6.3 
mt (ww) of swordfish would be worth a total of $38,743 per year among 
all squid trawl vessels, based on the 2005 average ex-vessel price of 
swordfish of $3.71 per lb and a ratio of whole weight to dressed weight 
of 1.33.
    Alternative 1c, a selected alternative, would increase the North 
Atlantic swordfish retention limit for vessels issued valid Incidental 
swordfish limited access permits to 30 fish per vessel per trip; and 
for vessels issued valid Incidental swordfish limited access permits 
that participate in the squid trawl fishery, would increase the limit 
to 15 fish per vessel per trip. This alternative was selected because 
it will provide an opportunity for Incidental swordfish permit holders 
to land swordfish that might otherwise be discarded, but prevent a 
large increase in additional directed fishing effort on swordfish. As 
many as 52 swordfish have been reported discarded on a single trip by 
Incidental swordfish permit holders, although most trips report few 
discards. A 30 fish limit is just below the median number of swordfish 
that have been landed by Directed swordfish permit holders from 2002 - 
2005 (36 fish). Thus, this alternative is expected to have limited 
adverse ecological impacts, because fishing effort is not expected to 
greatly exceed current levels.
    The economic benefits associated with this alternative are 
estimated by taking the difference between the value of two swordfish 
and the value of 30 swordfish. Using the mean weight of swordfish 
landed in 2005 of 75.7 lb and the mean ex-vessel price of $3.71 per lb 
in 2005, the estimated value of potentially retaining an additional 28 
swordfish under this alternative is $7,864 per vessel per trip. Using 
logbook records from 2005, it is projected that total annual landings 
of swordfish could increase from 10,787 to 34,879 lb, if all reported 
discards were converted to landings, up to 30 fish. Using the average 
ex-vessel price of $3.71 per lb for 2005, the estimated total value of 
these additional landings would be $89,381 amongst all active 
Incidental swordfish vessels per year.
    Alternative 1c would also increase the swordfish retention limit 
from 5 to 15 swordfish for vessels issued valid Incidental swordfish 
limited access permits that participate in the squid trawl fishery. 
This would triple the current retention limit for these vessels. From 
1998 [dash] 2004, all squid trawl vessels landed an average of 6.3 mt 
(ww) of swordfish in total per year. Increasing the limit for squid 
trawl vessels by an additional ten swordfish per trip could potentially 
increase annual landings by all squid trawl vessels to 18.9 mt (ww) in 
total per year. This increase of 12.6 mt (ww) of swordfish would be 
worth a total of $77,487 per year among all squid trawl vessels, based 
on the same prices and ratios discussed above in alternative 1b.
    Alternative 1d would increase the North Atlantic swordfish 
retention limit for vessels issued valid Incidental swordfish limited 
access permits to 15 fish per vessel per trip; and, for vessels issued 
valid Incidental swordfish limited access permits that participate in 
the squid trawl fishery, would increase the limit to 10 fish per vessel 
per trip.
    Alternative 1d would provide an opportunity for Incidental 
swordfish permit holders to land swordfish that otherwise might be 
discarded, and would prevent a large increase in additional directed 
fishing effort on the swordfish. Therefore, this alternative would have 
only limited adverse ecological impacts because effort would be 
expected to remain at current levels. However, alternative 1d was not 
selected because a 15 fish limit is significantly below the mean number 
of swordfish landed by Directed swordfish permit holders (36 fish), 
although it is much higher than the current limit of two fish. It would 
not be as effective as the selected alternative at increasing domestic 
swordfish landings.
    The economic benefits of alternative 1d are estimated by taking the 
difference between the value of two swordfish and the value of 15 
swordfish. Using the mean weight and ex-vessel price of swordfish 
landed in 2005, as described in alternative 1c above, the estimated 
value of potentially retaining an additional 13 swordfish under this 
alternative is $3,651 per vessel per trip. Using logbook records from 
2005, it is projected that total annual landings of swordfish could 
increase from 10,787 lb to 30,350 lb, if all reported discards were 
converted to landings, up to 15 fish. Using the average ex-vessel price 
of $3.71 per lb for 2005, the estimated total value of these additional 
landings would be $72,579 amongst all active Incidental swordfish 
vessels per year.
    Alternative 1d would increase the swordfish retention limit from 5 
to 10 swordfish for vessels issued valid Incidental swordfish limited 
access permits that participate in the squid trawl fishery. This 
doubles the current retention limit for these vessels. From 1998 [dash] 
2004, all squid trawl vessels landed an average of 6.3 mt (ww) in total 
per year. Increasing the limit for squid trawl vessels by an additional 
five swordfish per trip could potentially increase annual landings by 
squid trawl vessels to 12.6 mt (ww) per year. This increase of 6.3 mt 
(ww) of swordfish

[[Page 31706]]

would be worth a total of $38,743 among all squid trawl vessels per 
year, based on the same prices and ratios discussed above in 
alternative 1b.
    Alternative 1e, a selected alternative, would implement a North 
Atlantic swordfish retention limit for HMS Charter/headboat vessels of 
one fish per paying passenger, up to six swordfish per trip for charter 
vessels and 15 swordfish per trip for headboat vessels. This 
alternative would maintain the current recreational limit of one 
swordfish per person, but increase the allowable upper retention limit 
from three to six fish for charter vessels, or from three fish to 
fifteen fish for headboat vessels. This alternative was selected 
because for-hire vessels often carry multiple paying passengers. A six-
fish upper vessel retention limit for charter vessels was the only 
alternative analyzed for this sector, besides the no action 
alternative, because these vessels are licensed to carry a maximum of 
six passengers per trip. Although headboats can carry upwards of 50 
passengers, a 15-fish retention limit was analyzed because it would 
provide a better opportunity for anglers on headboats to land a 
swordfish, while maintaining a recreational aspect to the charter/
headboat fishery. In addition, given the lack of data for swordfish 
retention by anglers, a 15 fish limit would still preclude potential 
negative effects on the swordfish stock. Thus, alternative 1e provides 
a reasonable opportunity for paying passengers to land swordfish, and 
may increase U.S. swordfish landings. Few adverse ecological impacts 
are anticipated under this alternative as swordfish are nearly rebuilt, 
and the recreational rod and reel fishery has been determined to have 
only minor impacts on protected species.
    In 2005, approximately 25 percent of the swordfish reported landed 
by Charter/headboat vessels in the HMS non-tournament recreational 
reporting database were in groups of three fish on the same date. Even 
though a quarter of the trips may have been limited in the amount of 
swordfish retained under the existing vessel trip limit, the benefits 
of raising the limit could extend beyond those trips. The economic 
benefits would result from additional bookings of charter trips, 
because the perceived value of a trip for an angler may be increased by 
the ability to land more fish. The 2004 average daily HMS charterboat 
rate for day trips was $1,053. The willingness-to-pay for swordfish 
charter trips is likely to be much higher than this value. Increased 
charter and headboat bookings could lead to positive economic 
multiplier impacts to tackle shops, boat dealers, hotels, fuel 
suppliers, and other associated local and regional businesses.
    Alternative 1f, a selected alternative, would implement a North 
Atlantic swordfish recreational retention limit for HMS Angling 
category vessels of one fish per person per trip, up to four swordfish 
per vessel per trip. This alternative would maintain the current 
recreational limit of one swordfish per person, but increase the upper 
retention limit from three fish to four fish per vessel per trip. A 
four-fish upper vessel retention limit for angling vessels was the only 
alternative analyzed for this sector, besides the no action 
alternative, because it would provide a modest increase in the 
opportunity to land a swordfish, while maintaining a recreational 
aspect to the fishery. Because there were 25,238 vessels issued HMS 
Angling category permits, as of February 1, 2006, an increase in the 
upper retention limit of more than one fish per angling vessel was 
considered, but rejected, due to concerns about potentially excessive 
recreational landings. HMS Angling category vessels do not carry paying 
passengers, so a higher limit based on the number of paying passengers 
onboard was also considered, but rejected. Thus, alternative 1f 
provides a reasonable opportunity for recreational anglers to land 
swordfish, and may increase U.S. swordfish landings. Few adverse 
ecological impacts are anticipated under this alternative as swordfish 
are nearly rebuilt, and the recreational rod and reel fishery has been 
determined to have only minor impacts on protected species.
    Approximately seven percent of the swordfish reported landed by 
Angling category vessels in the HMS non-tournament recreational 
reporting database were in groups of three fish on the same day. 
Therefore, the increase from three to four swordfish per vessel per 
trip under this alternative would likely affect a similar percentage of 
trips. The economic benefit of this alternative would derive from an 
increased perceived value of a recreational angling trip, due to the 
ability to land more fish. Recreational anglers might take more trips, 
which could lead to some multiplier benefits to tackle shops, boat 
dealers, hotels, fuel suppliers, and other related businesses. The 
average expenditure on HMS related trips is estimated to be $122 per 
person per day based on the recreational fishing expenditure survey 
add-on to the NMFS' Marine Recreational Fisheries Statistical Survey 
(MRFSS). The expenditure data include the costs of tackle, food, 
lodging, bait, ice, boat, fuel, processing, transportation, party/
charter fees, access/boat launching, and equipment rental.
    Alternative 2a is the no action, or status quo, alternative for 
modifying HMS limited access vessel upgrading restrictions, because it 
would retain the existing regulations. Under current regulations, 
owners may upgrade vessels or transfer permits to another vessel only 
if the vessel upgrade or permit transfer does not result in an increase 
in horsepower (HP) of more than 20 percent, or an increase of more than 
10 percent in length overall (LOA), gross registered tonnage (GRT), or 
net tonnage (NT), relative to the respective specifications of the 
first vessel issued the initial limited access permit (the baseline 
vessel). If any of the three vessel size specifications is increased, 
any increase in the other two must be performed at the same time. The 
current regulations also specify that vessel horsepower and vessel size 
may be increased only once. However, vessel size may be increased 
separately from an increase in vessel horsepower. These regulations 
have been in effect since 1999.
    Alternative 2a was not selected because it may be contributing to 
persistent underharvests of the domestic ICCAT- recommended swordfish 
quota. It may also be contributing to a decline in the number of active 
PLL vessels (i.e., vessels reporting landings) by limiting vessel 
owners' ability to optimally configure their vessels to maximize 
profits given changing ecological, regulatory, and market conditions.
    Under alternative 2a, there would be no change in the current 
baseline economic and social impacts associated with previously 
implemented North Atlantic swordfish vessel upgrade restrictions. By 
itself, the status quo alternative does not create any new economic 
burdens on HMS limited access permit holders. However, it would likely 
continue several negative economic impacts associated with upgrade 
restrictions. First, as previously mentioned, vessels may not be 
optimally configured for current market conditions, and therefore 
profits may be less than optimal. Second, current upgrade restrictions 
may make it burdensome for some vessels to comply with HMS observer 
accommodation requirements, due to inadequate bunk or berthing space. 
Third, some fishing vessels may wish to enhance their crew quarters in 
order to better attract labor. Finally, limitations on vessel upgrading 
may be affecting safety at sea. A larger vessel is generally more 
seaworthy than a smaller vessel, especially in rough seas. Current 
restraints on vessel size

[[Page 31707]]

may also affect the ability to modernize or purchase new vessels. 
Without changes to upgrading restrictions, the number of active vessels 
in the swordfish PLL fleet may continue to decline, and persistent 
underharvests of the annual swordfish quota may continue to accrue. The 
following alternatives may allow for greater flexibility and provide 
for a more efficient deployment of the swordfish fleet.
    It is not possible to precisely quantify the economic impacts 
associated with the alternatives to modify HMS limited access permit 
vessel upgrading restrictions. This is because the decision to upgrade 
is a business decision, and depends largely upon whether the returns 
expected from an upgrade outweigh the costs of planning the upgrade, 
construction, financing, time to complete the necessary work, age of 
the current vessel, and the forgone revenues associated with being out 
of the fishery while vessel work is being completed. The potential 
economic benefits of vessel upgrades largely depend upon future 
harvests, ex-vessel prices, fuel prices, and labor costs. These factors 
fluctuate, often dramatically, with market forces from year to year 
making any estimated benefits difficult to assess. Independent of those 
factors, however, vessel owners will gain the economic benefits 
associated with having the increased flexibility to adjust vessel 
configurations in terms of length and horsepower to best fit their 
business needs. In addition, vessel owners under the following 
alternatives would be better able to comply with HMS observer 
accommodation requirements, and thus avoid lost fishing time. The 
potential to expand bunk and berthing areas could enhance the quality 
of life for crew and captains, provide intangible comfort benefits, and 
also potentially reduce the actual costs of retaining labor. Finally, 
the potential to upgrade vessels may have important positive safety 
implications, especially for smaller vessels operating far offshore in 
areas prone to extreme weather.
    Under each of the following alternatives, vessel owners will have 
to weigh the costs of potentially upgrading the length or horsepower of 
their vessels by the potential economic benefits associated with an 
upgrade. Many vessel owners may choose not to upgrade, even with 
relaxed upgrade restrictions, because of the capital costs associated 
with upgrading. The main economic benefit associated with the following 
alternatives will likely be from not having to acquire a permit from a 
larger vessel, including the associated transaction costs, when an 
owner wishes to increase vessel size or horsepower.
    The capital costs associated with potential upgrades are difficult 
to estimate. Large vessel length upgrades are not likely to occur by 
modifying existing vessels, according to several marine engineers and 
shipyards that NMFS contacted. They are more likely to result from the 
purchase of another vessel and the subsequent transfer of permits to 
that vessel. Horsepower upgrades are more likely to occur on existing 
vessels in conjunction with an engine replacement due to capital 
depreciation.
    NMFS contacted several shipyards regarding the potential costs of 
new vessels and upgrades to existing vessels. The shipyards agreed that 
it is probably more economical to perform large increases in vessel 
length by acquiring another larger vessel, than by modifying existing 
vessels. However, the estimated cost of building a new vessel is 
uncertain because few new vessels have been built since the upgrade 
restrictions were implemented in 1999, according to the shipyards 
contacted. The overall cost of upgrading would likely depend on the 
current size of the vessel, the age of the vessel, where the work will 
be done, financing costs, and whether an existing used vessel is 
available with the desired specifications, versus constructing a new 
vessel. For example, a 68 foot PLL vessel over 20 years old recently 
had a sales price of $245,000, according to a vessel broker list. To 
better quantify the associated costs and potential scope of vessel 
upgrades, NMFS sought comments from the public on the current market 
costs of upgrading PLL and swordfish Handgear vessels, but did not 
receive any new information.
    Alternative 2b would waive HMS limited access vessel upgrading and 
permit transfer upgrading restrictions for all vessels that are 
authorized to fish with pelagic longline gear for swordfish and tunas 
for 10 years, after which a new vessel baseline would be established 
and the current 10 percent LOA, GRT, NT; and 20 percent HP restrictions 
would go back into effect. A ten-year sunset provision was selected for 
this alternative because it provides a reasonable amount of time for 
owners to purchase or upgrade vessels, but establishes a deadline to 
account for any unanticipated future changes in the fishery or status 
of stocks.
    This alternative would likely have positive economic benefits for 
PLL vessel owners because it could provide increased operational 
flexibility for business owners to modify their vessels. However, it is 
not possible to predict how many vessels would be upgraded under this 
alternative, as any estimate is predicated upon the decisions of many 
different owners. Waiving vessel upgrade restrictions for PLL vessels 
could produce secondary and regional economic impacts. Shoreside 
support businesses such as shipyards, marine architects, and other 
commercial vessel suppliers could receive increased business from 
owners wanting to upgrade their vessels. Fish dealers may need to 
expand their operations to handle any greater supplies of swordfish 
that could result from increased fleet capacity. It is also possible 
that the value of limited access permits could be reduced by waiving 
the upgrade restrictions. The supply of usable permits for vessel 
owners that want to upgrade under the current limited access 
regulations is restricted, because permits have to meet certain 
characteristics in order to be transferred to a different vessel. 
Removing the upgrading restrictions would give a potential new entrant 
into the fishery a larger selection of permits to choose from, since 
they would be able to select from a larger pool of potential permits 
for sale. This increased supply could reduce the value of limited 
access permits. However, any improvements in the profitability of the 
fishery might increase demand for permits and could potentially offset 
any decrease in permit value.
    Alternative 2b was not selected because there would be no limit on 
the size to which PLL vessels could be upgraded. Therefore, 
unquantifiable adverse ecological impacts could occur, especially over 
the long term. However, it is also possible that larger PLL vessels 
might operate further offshore, thereby reducing some adverse impacts 
in nearshore areas.
    Alternative 2c would waive HMS limited access swordfish handgear 
vessel upgrading and permit transfer upgrading restrictions for 10 
years, after which a new baseline would be established and the current 
restrictions would go back into effect. A ten-year sunset provision was 
selected for this alternative because it provides a reasonable amount 
of time for owners to purchase or upgrade vessels, but establishes a 
deadline to account for any unanticipated future changes in the fishery 
or status of stocks.
    This alternative would likely have positive economic benefits for 
swordfish Handgear permit holders because it could increase operational 
flexibility for business owners to modify their vessels according to 
their business needs. However, for the same reasons

[[Page 31708]]

discussed above, it is not possible to predict how many vessels would 
be upgraded under this alternative, or the anticipated economic 
impacts, because the estimate is predicated upon the decisions of many 
different vessel owners. In general, similar direct and indirect 
economic benefits to vessel owners, dealers, shipyards, processors, and 
shoreside support businesses that were discussed under alternative 2b 
could result.
    Alternative 2c was not selected because it could result in 
unquantifiable adverse ecological impacts, especially over the long 
term, as there would be no limit on the size to which swordfish 
Handgear vessels could be upgraded. In addition, because the swordfish 
handgear fleet is currently most active in the East Florida Coast PLL 
closed area, ecological benefits associated with the area, including 
reductions in the bycatch of undersized swordfish, and non-target and 
protected species, could be compromised with a large expansion of the 
swordfish handgear fishery.
    Alternative 2d would waive all HMS limited access vessel upgrading 
and permit transfer upgrading restrictions for 10 years, after which a 
new baseline would be established and the current restrictions would go 
back into effect. This alternative would likely have the largest 
potential economic benefits as well as the largest potential adverse 
ecological costs, particularly on sharks, because the universe of 
impacted entities is the largest among all of the alternatives, and 
there would be no limit on the size to which vessels could be upgraded. 
For this reason, it was rejected.
    Alternatives 2b and 2c would be limited to vessels that are 
eligible to fish for swordfish and tunas with PLL gear, and swordfish 
Handgear vessels, respectively. Alternative 2d includes those vessels, 
as well as all other HMS limited access vessels, including those 
eligible to fish for sharks with bottom longline gear. Therefore, 
approximately 376 additional vessels would be eligible for unlimited 
upgrades under alternative 2d. While all of these additional shark 
vessels could be upgraded under this alternative, few are anticipated 
to take immediate advantage of the opportunity because of current 
regulatory conditions in the domestic shark fishery. Incidental shark 
permit holders are governed by retention limits for large coastal 
sharks (LCS), small coastal sharks (SCS), and pelagic sharks. Directed 
shark permit holders are governed by retention limits for LCS. Because 
of these retention limits, vessel size may not be a limiting factor in 
the shark fishery. Nevertheless, because many shark fisheries are 
overfished with overfishing occurring, the potential for adverse 
ecological impacts from increased effort on these species exists under 
alternative 2d. Other economic benefits and costs are similar to 
Alternatives 2b and 2c, including any secondary economic impacts to 
shoreside industries.
    Alternative 2e, the selected alternative, would establish new HMS 
limited access vessel upgrading and permit transfer upgrading 
restrictions only for HMS vessels that are authorized to fish with 
pelagic longline gear for swordfish and tunas (i.e., vessels that 
concurrently possess Directed or Incidental shark and swordfish 
permits, and an Atlantic Tunas Longline category permit), equivalent to 
35 percent LOA, GRT, and NT, as measured relative to the baseline 
vessel specifications (i.e., the specifications of the vessel first 
issued an HMS limited access permit), and remove horsepower upgrading 
and permit transfer upgrading restrictions for these vessels. This 
alternative was selected because it could improve the ability of U.S. 
vessels to fully harvest the domestic ICCAT-recommended swordfish 
quota, but imposes some limits on vessel upgrading by restricting the 
universe of potentially impacted entities to certain vessels only, and 
by limiting the magnitude of allowable upgrades.
    Alternative 2e is anticipated to have slightly lower economic 
benefits to permit holders than alternative 2d, and would likely have a 
very similar outcome to alternative 2b, except that a few major 
upgrades would not qualify and there would be no reversion back to the 
current regulations after 10 years. For the same reasons discussed 
above under alternative 2a, however, it is not possible to accurately 
predict how many vessels will be upgraded, or the anticipated future 
capacity of the fishery, because the prediction is dependent upon the 
business decisions of many individual boat owners.
    For an ``average'' 55-foot swordfish vessel, this alternative could 
result in a 69 [dash] 74 foot vessel, depending upon whether the vessel 
has already been upgraded. At the opposite end of the spectrum, it is 
also possible that all eligible vessels could increase by 25 [dash] 35 
percent or, conversely, none of the eligible vessels would be upgraded. 
Eligible vessel owners would gain the economic benefits associated with 
having increased operational flexibility to adjust vessel 
configurations in terms of length and horsepower to best fit their 
business needs. However, that flexibility would be capped by imposing a 
35 percent limit on increases in vessel length, gross tonnage, and net 
tonnage, unlike alternatives 2b, 2c, and 2d which have no limits on the 
size of upgrades.
    Other economic benefits and costs of alternative 2e are similar to 
those discussed under alternatives 2b, 2c, and 2d, including any 
secondary economic impacts to shoreside industries.
    This final rule contains no new collection-of-information 
requirements subject to review and approval by OMB under the PRA.

List of Subjects in 50 CFR Part 635

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

    Dated: May 29, 2007.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For 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.  635.4, paragraphs (l)(2)(i), (l)(2)(ii) introductory text, 
(l)(2)(ii)(B), (l)(2)(ii)(C), (l)(2)(iv), the first sentence in 
paragraph (l)(2)(v), and the first sentence in paragraph(l)(2)(vi) are 
revised; and paragraph (l)(2)(x) is added to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (l) * * *
    (2) * * *
    (i) Subject to the restrictions on upgrading the harvesting 
capacity of permitted vessels in paragraphs (l)(2)(ii) or (x) of this 
section, as applicable, and to the limitations on ownership of 
permitted vessels in paragraph (l)(2)(iii) of this section, an owner 
may transfer a shark or swordfish LAP or an Atlantic Tunas Longline 
category permit to another vessel that he or she owns or to another 
person. Directed handgear LAPs for swordfish may be transferred to 
another vessel but only for use with handgear and subject to the 
upgrading restrictions in paragraph (l)(2)(ii) of this section and the 
limitations on ownership of permitted vessels in paragraph (l)(2)(iii) 
of this section. Incidental catch LAPs are not subject to the 
requirements specified in paragraphs (l)(2)(ii),(iii), and (x) of this 
section.
    (ii) Except as specified in paragraph (l)(2)(x) of this section, an 
owner may

[[Page 31709]]

upgrade a vessel with a shark, swordfish, or tuna longline limited 
access permit, or transfer the limited access permit to another vessel, 
and be eligible to retain or renew a limited access permit only if the 
upgrade or transfer does not result in an increase in horsepower of 
more than 20 percent or an increase of more than 10 percent in length 
overall, gross registered tonnage, or net tonnage from the vessel 
baseline specifications.
* * * * *
    (B) Subsequent to the issuance of a limited access permit, the 
vessel's horsepower may be increased, relative to the baseline 
specifications of the vessel initially issued the LAP, through 
refitting, replacement, or transfer. Such an increase may not exceed 20 
percent of the baseline specifications of the vessel initially issued 
the LAP.
    (C) Subsequent to the issuance of a limited access permit, the 
vessel's length overall, gross registered tonnage, and net tonnage may 
be increased, relative to the baseline specifications of the vessel 
initially issued the LAP, through refitting, replacement, or transfer. 
An increase in any of these three specifications of vessel size may not 
exceed 10 percent of the baseline specifications of the vessel 
initially issued the LAP. This type of upgrade may be done separately 
from an engine horsepower upgrade.
* * * * *
    (iv) In order to transfer a swordfish, shark or tuna longline 
limited access permit to a replacement vessel, the owner of the vessel 
issued the limited access permit must submit a request to NMFS, at an 
address designated by NMFS, to transfer the limited access permit to 
another vessel, subject to requirements specified in paragraphs 
(l)(2)(ii) or (x) of this section, if applicable. The owner must return 
the current valid limited access permit to NMFS with a complete 
application for a limited access permit, as specified in paragraph (h) 
of this section, for the replacement vessel. Copies of both vessels' 
U.S. Coast Guard documentation or state registration must accompany the 
application.
    (v) For swordfish, shark, and tuna longline limited access permit 
transfers to a different person, the transferee must submit a request 
to NMFS, at an address designated by NMFS, to transfer the original 
limited access permit(s), subject to the requirements specified in 
paragraphs (l)(2)(ii), (iii), and (x) of this section, if applicable. * 
* *
    (vi) For limited access permit transfers in conjunction with the 
sale of the permitted vessel, the transferee of the vessel and limited 
access permit(s) issued to that vessel must submit a request to NMFS, 
at an address designated by NMFS, to transfer the limited access 
permit(s), subject to the requirements specified in paragraphs 
(l)(2)(ii), (iii), and (x) of this section, if applicable. * * *
* * * * *
    (x) The owner of a vessel that, on August 6, 2007, concurrently 
possesses, or is eligible to renew, a directed or incidental swordfish 
limited access permit, a directed or incidental shark limited access 
permit, and an Atlantic Tunas Longline category permit is eligible to 
upgrade that vessel, or transfer its limited access permits to another 
vessel, subject to the following restrictions:
    (A) For eligible vessels, as defined in paragraph (l)(2)(x), any 
increase in the three specifications of vessel size (length overall, 
gross registered tonnage, and net tonnage), whether through refitting, 
replacement, or transfer, may not exceed 35 percent of the vessel 
baseline specifications, as defined in paragraph (l)(2)(ii)(A) of this 
section. Horsepower for eligible vessels is not limited for purposes 
vessel upgrades or permit transfers under paragraph (l)(2)(x).
    (B) If a vessel owner wants to request a transfer of limited access 
permits in order to be eligible for the upgrading restrictions under 
paragraph (l)(2)(x), the transferee must submit a complete 
application(s), as specified in paragraphs (h),(i),(j), and (l)(1) of 
this section, according to the procedures at paragraphs (l)(2)(iv), 
(v), or (vi) of this section, as applicable, to an address designated 
by NMFS, so that the completed application(s) are received by NMFS by 
August 6, 2007. Vessels will not be eligible for the upgrading 
restrictions under paragraph (l)(2)(x) if applications are incomplete 
or received after August 6, 2007.
    (C) Owners of directed or incidental swordfish limited access 
permit(s), directed or incidental shark limited access permit(s), and 
Atlantic Tunas Longline category permit(s) that are not assigned to a 
specific vessel may request transfer of these permits to a vessel in 
order to be eligible for the upgrading restrictions under paragraph 
(l)(2)(x). The transferee must submit complete applications, as 
specified in paragraphs (h),(i),(j), and (l)(1) of this section, 
according to the procedures at paragraphs (l)(2)(iv), (v), or (vi) of 
this section, as applicable, to an address designated by NMFS, so that 
the completed applications are received by NMFS by August 6, 2007. 
Vessels will not be eligible for the upgrading restrictions under 
paragraph (l)(2)(x) if applications are incomplete or received by NMFS 
after August 6, 2007.
* * * * *
0
3. In Sec.  635.22, paragraph (f) is revised to read as follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (f) North Atlantic swordfish. The recreational retention limits for 
North Atlantic swordfish apply to persons who fish in any manner, 
except to persons aboard a vessel that has been issued a limited access 
North Atlantic swordfish permit under Sec.  635.4.
    (1) Vessels issued an HMS Charter/Headboat permit under Sec.  
635.4(b), that are charter boats as defined under Sec.  600.10 of this 
chapter, may retain, possess, or land no more than one North Atlantic 
swordfish per paying passenger and up to six North Atlantic swordfish 
per vessel per trip.
    (2) Vessels issued an HMS Charter/Headboat permit under Sec.  
635.4(b), that are headboats as defined under Sec.  600.10 of this 
chapter, may retain, possess, or land no more than one North Atlantic 
swordfish per paying passenger and up to 15 North Atlantic swordfish 
per vessel per trip.
    (3) Vessels issued an HMS Angling category permit under Sec.  
635.4(c), may retain, possess, or land no more than one North Atlantic 
swordfish per person and up to four North Atlantic swordfish per vessel 
per trip.
0
4. In Sec.  635.24, paragraphs (b)(1) and (2) are revised to read as 
follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

* * * * *
    (b) * * *
    (1) Persons aboard a vessel that has been issued an incidental LAP 
for swordfish may retain, possess, land, or sell no more than 30 
swordfish per trip in or from the Atlantic Ocean north of 5[deg] N. 
lat., except as specified in paragraph (b)(2) of this section.
    (2) Persons aboard a vessel in the squid trawl fishery that has 
been issued an incidental LAP for swordfish may retain, possess, land, 
or sell no more than 15 swordfish per trip in or from the Atlantic 
Ocean north of 5[deg] N. lat. A vessel is considered to be in the squid 
trawl fishery when it has no commercial fishing gear other than trawls 
on board and when squid constitute not less than 75 percent by weight 
of the total fish on board or offloaded from the vessel.
[FR Doc. E7-10727 Filed 6-6-07; 8:45 am]
BILLING CODE 3510-22-S