[Federal Register Volume 81, Number 226 (Wednesday, November 23, 2016)]
[Rules and Regulations]
[Pages 84501-84504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28171]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 160531477-6999-02]
RIN 0648-BG10


Atlantic Highly Migratory Species; Removal of Vessel Upgrade 
Restrictions for Swordfish Directed Limited Access and Atlantic Tunas 
Longline Category Permits

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

ACTION: Final rule.

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SUMMARY: This final rule removes vessel upgrading restrictions for 
vessels issued swordfish directed and Atlantic tunas Longline category 
limited access permits (LAPs). Currently, regulations allow for 
upgrading vessels or transferring permits to another vessel only if the 
vessel upgrade or permit transfer results in an increase of no more 
than 35 percent in length overall, gross registered tonnage, and net 
tonnage, as measured relative to the baseline vessel specifications 
(i.e., the specifications of the vessel first issued a Highly Migratory 
Species (HMS) LAP). This final rule eliminates these restrictions on 
upgrades and permit transfers. This action affects vessel owners issued 
swordfish directed and Atlantic tunas Longline category LAPs and 
fishing in the Atlantic Ocean, including the Gulf of Mexico and 
Caribbean Sea.

DATES: This rule is effective on December 23, 2016.

ADDRESSES: Other documents relevant to this final rule are available 
from the Atlantic HMS Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/ or by contacting Steve Durkee by phone at 
202-670-6637 or Rick Pearson by phone at 727-824-5399.

FOR FURTHER INFORMATION CONTACT: Steve Durkee by phone at 202-670-6637 
or Rick Pearson by phone at 727-824-5399.

SUPPLEMENTARY INFORMATION: The U.S. Atlantic swordfish and tuna 
fisheries are managed under the 2006 Consolidated HMS Fishery 
Management Plan (FMP) and its amendments. Implementing regulations at 
50 CFR part 635 are issued under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 
U.S.C. 1801 et seq., and the Atlantic Tunas Convention Act (ATCA), 16 
U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations, as may be necessary and 
appropriate, to implement recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT).

Background

    This final rule removes vessel upgrading restrictions for vessels 
issued swordfish directed and Atlantic tunas Longline category LAPs. A 
brief summary of the background of this final rule is provided below. 
The details were described in the proposed rule for this action (81 FR 
48731, July 26, 2016) and are not repeated here. Additional information 
regarding Atlantic HMS management can be found in the 2006 Consolidated 
Atlantic HMS FMP and its amendments, the annual HMS Stock Assessment 
and Fishery Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/. The comments received on the proposed rule 
for this action, and NMFS' responses to those comments, are summarized 
below in the section labeled ``Response to Comments.''
    In 1999, NMFS issued initial LAPs in the Atlantic swordfish and 
shark fisheries (64 FR 29090, March 28, 1999). To be eligible to fish 
with pelagic longline gear, a vessel had to be issued a swordfish 
directed or incidental LAP, a shark directed or incidental LAP, and an 
Atlantic tunas Longline category permit. After initial issuance of 
these permits, no new permits were issued by NMFS, but permits could be 
transferred to other vessels. Swordfish and shark directed LAPs 
included restrictions on vessel upgrading and permit transfers. Vessel 
upgrades and permit transfers were allowed only if the upgrade or 
permit transfer to another vessel did 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 
relative to the respective specifications of the first vessel issued 
the initial LAP (the baseline vessel). Additionally, vessels could only 
be upgraded one time. These vessel upgrading restrictions were put into 
place to limit capacity in the swordfish fishery. Incidental LAPs for 
these species did not have vessel upgrading restrictions. Upgrading 
restrictions for Atlantic tunas Longline category LAPs were not 
explicitly implemented in the 1999 rule. However, as a practical 
effect, Atlantic tunas Longline category LAPs were limited by the same 
upgrading restrictions as the swordfish and shark

[[Page 84502]]

directed permits due to the requirement to hold all three permits when 
fishing with pelagic longline gear.
    On June 7, 2007 (72 FR 31688), NMFS issued a final rule amending 
the HMS fishery regulations to provide additional opportunities for 
U.S. vessels to more fully utilize the North Atlantic swordfish quota, 
recognizing the improved status of the species. The 2007 action 
modified limited access vessel upgrading and permit transfer 
restrictions for vessels that were concurrently issued, or were 
eligible to renew, directed or incidental swordfish, directed or 
incidental shark, and Atlantic tunas Longline category LAPs (i.e., 
vessels that were eligible to fish with pelagic longline gear). The 
rule also clarified that Atlantic tunas Longline category LAPs were 
subject to the same vessel upgrade restrictions as swordfish and shark 
directed LAPs. These measures allowed eligible vessel owners to upgrade 
their vessels by 35 percent in size (length overall, gross registered 
tonnage, and net tonnage) relative to the specifications of the 
baseline vessel, and removed upgrade limits on horsepower. 
Additionally, these permits could be upgraded more than once, provided 
that the new maximum upgrade limits were not exceeded.
    Since implementing the vessel upgrade requirements in 1999 and 
modifying them in 2007, several important things have changed in the 
Atlantic HMS pelagic longline fishery. As described in the proposed 
rule for this action, NMFS was concerned about ensuring that pelagic 
longline fishing effort and fleet capacity were commensurate with the 
available swordfish quota in 1999. The vessel upgrading restrictions 
were part of NMFS' management strategy to reduce fleet capacity. Since 
then, fleet capacity has been reduced through the successful 
application of the initial LAP qualification criteria and attrition 
over time. In 1998, prior to the implementation of upgrade 
restrictions, 233 pelagic longline vessels among the 2,000 permit 
holders landed swordfish and thus were considered ``active.'' The 
number of such vessels dropped to a low of 102 in 2006 and has since 
remained between 109 and 122 vessels. Similarly, as of December 30, 
1999, approximately 451 directed and incidental swordfish LAPs had been 
issued. By 2015, permit numbers had been reduced to 260 directed and 
incidental swordfish LAPs. Permit numbers are expected to remain at 
approximately these levels because no new LAPs are being issued.
    Other requirements implemented since 1999, such as those designed 
to reduce bycatch in the pelagic longline fishery (e.g., closed areas, 
bait requirements, individual bluefin tuna quotas, and gear 
restrictions), have also limited fishing effort. The directed North 
Atlantic swordfish quota has not been exceeded in almost 20 years and, 
in fact, has been underharvested for a number of years.
    During this same time period, the stock status of North Atlantic 
swordfish has significantly improved. In 2009, ICCAT declared that the 
stock had been fully rebuilt. Using domestic stock status thresholds, 
NMFS has also declared that the North Atlantic swordfish stock is not 
overfished and that overfishing is not occurring.
    In addition to limiting capacity in the HMS pelagic longline 
fishery, a secondary goal for implementing the specific swordfish 
directed and Atlantic tunas Longline vessel upgrade limits adopted in 
1999 was to be consistent with similar regulations previously 
established by the New England and Mid-Atlantic Fishery Management 
Councils (Councils). In August 2015, the Councils removed gross 
registered and net tonnage limits (80 FR 51754) so that only length and 
horsepower limits remain in effect. Because this HMS action will remove 
all upgrade restrictions for vessels issued swordfish directed and 
Atlantic tunas Longline category LAPs, only the Council regulations 
will limit vessel upgrading for vessels issued LAPs for both Council-
managed species and HMS. Thus, there will be no conflict between 
Council and HMS vessel upgrade restrictions. This action will simplify 
compliance for dually permitted vessels and provide greater flexibility 
for HMS permitted vessels.
    Because the overall reduction in pelagic longline fleet capacity, 
in combination with the totality of effort controls implemented since 
1999, has sufficiently limited the Atlantic HMS pelagic longline 
fishery's capacity, vessel upgrading and related permit transfer 
restrictions are no longer necessary at this time. Therefore, this 
final rule removes all upgrading restrictions for vessels issued 
swordfish directed and Atlantic tunas Longline category LAPs. Although 
limited in scope, this action eases a barrier to entry in the pelagic 
longline fishery, facilitates LAP transfers, provides increased 
business flexibility, and helps vessel owners address safety issues. 
Eliminating vessel upgrading restrictions will have short- and long-
term minor beneficial socioeconomic impacts, since it will allow 
fishermen to buy, sell, or transfer swordfish directed and Atlantic 
tunas Longline category LAPs without concerns about exceeding the 
maximum upgrade limit for the permits. It will also allow vessel owners 
to transfer their permits to newer vessels, which could have greater 
capacity, and address safety issues that exist with older vessels.
    Removing the upgrading restrictions is not expected to affect the 
overall number of swordfish and tunas being landed by vessels, as these 
amounts are determined by established quotas and effort controls 
(including, for example, individual vessel quotas for bluefin tuna), 
not the size of the vessel. Thus, this action is expected to have no 
ecological impacts beyond those previously analyzed regarding the 
quotas and existing conservation and management measures, and will not 
result in additional interactions with protected resources, given the 
other restrictions on the Atlantic HMS pelagic longline fishery.

Response to Comments

    The comment period for the proposed rule closed on September 26, 
2016. NMFS received three written comments, which can be found at 
https://www.regulations.gov/ by searching for NOAA-NMFS-2016-0087. 
Comments were also received from the Atlantic HMS Advisory Panel during 
its meeting on September 7, 2016. No comments were received during a 
conference call/webinar held on August 23, 2016. NMFS received comments 
in support of, and one opposed to, removing vessel upgrade restrictions 
for vessels issued Atlantic tunas Longline category and swordfish 
directed permits. A summary of the comments received during the public 
comment period is provided below along with NMFS's responses.
    Comment 1: A commenter opposed to removing HMS pelagic longline 
vessel upgrade restrictions stated that the proposal will enable 
permits to be transferred to larger vessels that could catch more fish. 
The commenter also wrote that there should be a complete ban on 
catching swordfish because the species is virtually extinct.
    Response: North Atlantic swordfish are not virtually extinct. In 
2009, ICCAT declared that the stock was fully rebuilt, and it has 
remained so ever since. Using domestic stock status thresholds, NMFS 
has also declared that the north Atlantic swordfish stock is not 
overfished and that overfishing is not occurring. The most recent stock 
assessment, conducted in 2013, indicates that the stock is not 
overfished (B2011/BMSY = 1.14) and overfishing is 
not occurring (F2011/FMSY = 0.82). North Atlantic

[[Page 84503]]

swordfish quotas are set by ICCAT considering the stock's status and to 
ensure that the stock is sustainably harvested and to prevent 
overfishing from occurring. The United States adheres to its ICCAT-
designated quota and, in fact, has underharvested the quota for the 
past several years. Numerous conservation and management measures 
remain in place in addition to the quota limitations to ensure that the 
stock is protected. The vessel upgrading restriction removal does not 
affect the amount of fish caught, nor does it relieve other 
restrictions that ensure effective conservation and management of this 
rebuilt fishery. Thus, the commenter's concerns about the stock being 
``virtually extinct'' are unfounded and do not warrant modification of 
the proposed action.
    While removing the upgrade restrictions for vessels issued 
swordfish directed and Atlantic tunas Longline category permits could 
facilitate the transfer of permits to larger vessels which could catch 
more swordfish, overall compliance with the quota in this fishery 
ensures that the stock is not negatively affected by fishing effort. 
North Atlantic swordfish landings are regulated by semi-annual quotas, 
and the fishery can be adjusted or closed as those quotas are 
approached. Similarly, landings of most tunas and pelagic sharks are 
regulated by quotas which can be adjusted, as necessary, to remain 
within the quotas.
    Comment 2: A supporter of the proposal to remove upgrade 
restrictions for vessels issued Atlantic tunas Longline category and 
swordfish directed permits stated that when the upgrade restrictions 
were first implemented, the commercial swordfish industry was at a peak 
in terms of both participation and landings. The commenter stated that 
the swordfish fleet is currently in decline due to increased operating 
costs, competition from foreign product, and regulatory restrictions, 
despite a fully recovered north Atlantic swordfish stock; that NMFS 
should pursue management measures to allow new entrants into the 
fishery and to expand the production capabilities of the existing 
fleet; and that eliminating vessel upgrading restrictions is a small 
step toward encouraging new entrants in the pelagic longline fishery to 
keep the fleet operative.
    Response: Although this final action is limited in scope, it will 
ease a barrier to entry in the pelagic longline fishery, facilitate LAP 
transfers, and provide increased business flexibility. As discussed 
above, both the North Atlantic swordfish stock status and the pelagic 
longline fishery have changed significantly since 1999. The vessel 
upgrading restrictions were part of NMFS' initial management strategy 
to reduce fleet capacity. Since then, capacity has been reduced through 
the successful application of the initial LAP qualification criteria 
and attrition over time. Both the number of swordfish LAPs and the 
number of pelagic longline vessels actively landing swordfish have 
declined by approximately 50 percent since 1999. As a result of these 
and other management measures, swordfish are no longer overfished and 
overfishing is not occurring. The overall reduction in fleet capacity, 
in combination with the totality of effort controls implemented since 
1999, has sufficiently limited the Atlantic HMS pelagic longline 
fishery's capacity. Thus, vessel upgrading and related permit transfer 
restrictions are no longer necessary or relevant at this time. Adverse 
impacts on stock status can be avoided because swordfish landings are 
regulated by semi-annual quotas, and the fishery can be adjusted or 
closed as those quotas are approached. Similarly, landings of most 
tunas and pelagic sharks are regulated by quotas which can be adjusted, 
as necessary, to remain within the quotas.
    Comment 3: When the upgrade restrictions were first implemented, 
vessel observers were not considered. The requirement to carry 
observers requires more space onboard a vessel, thus there is sometimes 
a need to increase the size of vessels more than might be allowed by 
the existing upgrade restrictions.
    Response: Pelagic longline vessels are required to carry observers 
if selected by NMFS. Removing the upgrade restrictions for vessels 
issued swordfish directed and Atlantic tunas Longline category permits 
could allow owners to modify their vessels or purchase newer, larger 
vessels that would better accommodate these observers.
    Comment 4: A commenter in support of the proposed action indicated 
that fishing vessels and fishing equipment needs improvement from time 
to time and that vessel upgrading restrictions have sometimes 
restricted that ability.
    Response: NMFS agrees. Removing upgrade restrictions for vessels 
issued swordfish directed and Atlantic tunas Longline category vessels 
could facilitate improvements in safety, working conditions, and 
overall living conditions for both crew members and fishery observers 
while onboard. This final rule will allow pelagic longline vessel 
owners to make necessary modifications to their vessels without 
restrictions on vessel length and tonnage.
    Comment 5: A commenter indicated that it has been almost impossible 
to replace their older engine with a similar engine due to the 
horsepower upgrade limits.
    Response: Horsepower upgrade limits for most HMS pelagic longline 
vessels were removed in a final rule that published on June 7, 2007 (72 
FR 31688).
    Comment 6: NMFS should remove vessel upgrade restrictions on 
swordfish handgear LAPs in order to convert permits that are currently 
useless due to low horsepower upgrade limits and allow them to be used 
because handgear vessel owners often prefer high horsepower ratings.
    Response: NMFS has previously considered this request in a final 
rule that published on June 7, 2007 (72 FR 31688) and will continue to 
do so. The swordfish handgear LAP authorizes the deployment of buoy 
gear, and buoy gear may be deployed in areas including the East Florida 
Coast pelagic longline closed area. This area contains oceanographic 
features that make it biologically unique. It provides important 
juvenile swordfish habitat, and is essentially a narrow migratory 
corridor containing high concentrations of swordfish located in close 
proximity to high concentrations of people who may fish for them. As 
stated in 2007, horsepower upgrade restrictions can limit the number of 
swordfish handgear LAPs that are issued because newer handgear vessels 
have very high horsepower ratings. Public comment indicated a concern 
that removing vessel upgrade restrictions on swordfish handgear LAPs 
could result in increased numbers of fishermen in the area, and the 
potential for crowding of fishermen, which could lead to potential 
fishing gear and user conflicts. Those concerns remain valid and NMFS 
decided not to pursue similar adjustments in the swordfish handgear 
fishery at this time.
    Comment 7: Some fishermen might obtain swordfish directed permits 
because those permits could be used to fish with handgear (including 
buoy gear). This final action could provide a preliminary preview of 
lifting the vessel upgrade restrictions on swordfish handgear permits.
    Response: Vessels in the swordfish buoy gear fishery are generally 
small. NMFS believes that the current vessel size restrictions (for 
maximum length and tonnage) applicable to pelagic longline vessels 
issued swordfish directed and Atlantic tunas Longline category LAPs 
have not been a limiting factor in the number of vessels that use

[[Page 84504]]

buoy gear. Rather, commenters indicated that buoy gear vessel owners 
are primarily limited by horsepower upgrade restrictions. Because the 
horsepower upgrade restrictions have already been removed from most 
swordfish directed limited access and Atlantic tunas Longline category 
LAPs (72 FR 31688) and because vessels owners who wish to enter the 
buoy gear fishery and whose vessels have large horsepower engines have 
already obtained permits and entered the fishery, it is unlikely that 
this action will result in significant increases in persons obtaining 
swordfish directed and Atlantic tunas Longline category LAPs to fish 
with buoy gear.
    Comment 8: NMFS should remove vessel upgrade restrictions on 
swordfish and shark incidental LAPs, and shark directed LAPs.
    Response: Swordfish and shark incidental LAPs and shark directed 
LAPs do not have vessel upgrade restrictions.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    The NMFS Assistant Administrator has determined that this final 
action is necessary for the conservation and management of the Atlantic 
HMS fisheries, and that it is consistent with the 2006 Consolidated HMS 
FMP and its amendments, other provisions of the Magnuson-Stevens Act, 
ATCA, and other applicable laws.
    This final action has been determined to be categorically excluded 
from the requirement to prepare an environmental assessment in 
accordance with NOAA Administrative Order 216-6. A memorandum for the 
file has been prepared that sets forth the decision to use a 
categorical exclusion because the rule would implement minor changes to 
the regulations whose effects have already been analyzed, and 
additional effects are not expected. This action will have no 
additional effects that were not already analyzed, and the action is 
not precedent-setting or controversial. It would not have a significant 
effect, individually or cumulatively, on the human environment.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    NMFS has determined that this final rule will have no effects on 
any coastal use or resource, and a negative determination pursuant to 
15 CFR 930.35 is not required. Therefore, pursuant to 15 CFR 
930.33(a)(2), coordination with appropriate state agencies under 
section 307 of the Coastal Zone Management Act is not required. No 
changes to the human environment are anticipated because removing the 
vessel upgrading restrictions would not affect the number of swordfish 
and tunas being landed by vessels, as these amounts are determined by 
the established quotas and effort controls, not the size of the vessel.

List of Subjects in 50 CFR Part 635

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

    Dated: November 17, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set out in the preamble, 50 CFR part 635 is 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, revise paragraphs (l)(2)(i), (l)(2)(ii) introductory 
text, (l)(2)(ii)(B), and (l)(2)(ii)(C) 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 paragraph (l)(2)(ii) 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 or to 
another person 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. Shark directed and incidental LAPs, swordfish directed 
and incidental LAPs, and Atlantic Tunas Longline category permits are 
not subject to the upgrading requirements specified in paragraph 
(l)(2)(ii) of this section. Shark and swordfish incidental LAPs are not 
subject to the ownership requirements specified in paragraph 
(l)(2)(iii) of this section.
    (ii) An owner may upgrade a vessel with a swordfish handgear LAP, 
or transfer such permit to another vessel or to another person, and be 
eligible to retain or renew such 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 swordfish handgear 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 swordfish handgear 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.
* * * * *
[FR Doc. 2016-28171 Filed 11-22-16; 8:45 am]
 BILLING CODE 3510-22-P