Atlantic Highly Migratory Species (HMS); U.S. Atlantic Swordfish Fishery Management Measures, 31688-31709 [E7-10727]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Rules and Regulations]
[Pages 31688-31709]
From the Federal Register Online via the Government Printing 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 https://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: Sari.Kiraly@noaa.gov, or Richard A. 
Pearson, by phone: 727-824-5399; by fax: 727-824-5398; or by e-mail: 
Rick.A.Pearson@noaa.gov.

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 tr