[Federal Register Volume 65, Number 148 (Tuesday, August 1, 2000)]
[Rules and Regulations]
[Pages 47214-47238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19272]



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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; Pelagic Longline Management; Final 
Rule

  Federal Register / Vol. 65, No. 148 / Tuesday, August 1, 2000 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 991210332-0212-02; I.D. 110499B]
RIN 0648-AM79


Atlantic Highly Migratory Species; Pelagic Longline Management

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

ACTION: Final rule.

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SUMMARY: NMFS issues final regulations to prohibit pelagic longline 
fishing at certain times and in certain areas within the Exclusive 
Economic Zone of the Atlantic Ocean off the coast of the Southeastern 
United States and in the Gulf of Mexico, and to prohibit the use of 
live bait when deploying pelagic longline gear in the Gulf of Mexico. 
This action is necessary to reduce bycatch and incidental catch of 
overfished and protected species by pelagic longline fishermen who 
target highly migratory species (HMS).

DATES: This final rule is effective September 1, 2000.

ADDRESSES: For copies of the Final Supplemental Environmental Impact 
Statement/Regulatory Impact Review/Final Regulatory Flexibility 
Analysis (FSEIS/RIR/FRFA), contact Steve Meyers at 301-713-2347 or 
write to Rebecca Lent, Chief, HMS Division (SF/1), Office of 
Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Steve Meyers at 301-713-2347, fax 301-
713-1917, e-mail [email protected]; or Buck Sutter at 727-570-5447, 
fax 727-570-5364, e-mail [email protected].

SUPPLEMENTARY INFORMATION: The Atlantic swordfish and tuna fisheries 
are managed under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic 
Tunas Convention Act (ATCA). The Fishery Management Plan for Atlantic 
Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 
50 CFR part 635.

Pelagic Longline Fishery

    Pelagic longline gear is the dominant commercial fishing gear used 
by U.S. fishermen in the Atlantic Ocean to target highly migratory 
species. The gear consists of a mainline, often many miles in length, 
suspended in the water column by floats and from which baited hooks are 
attached on leaders (gangions). Though not completely selective, 
longline gear can be modified (e.g., gear configuration, hook depth, 
timing of sets) to target preferentially yellowfin tuna, bigeye tuna, 
or swordfish.
    Observer data and vessel logbooks indicate that pelagic longline 
fishing for Atlantic swordfish and tunas results in catch of non-target 
finfish species such as bluefin tuna, billfish, and undersized 
swordfish, and of protected species, including threatened and 
endangered sea turtles. Also, this fishing gear incidentally hooks 
marine mammals and sea birds during tuna and swordfish operations. The 
bycatch of animals that are hooked but not retained due to economic or 
regulatory factors contributes to overall fishing mortality. Such 
bycatch mortality may significantly impair rebuilding of overfished 
finfish stocks or the recovery of protected species.

Proposed Bycatch Reduction Strategy

    Atlantic blue marlin, white marlin, sailfish, bluefin tuna, and 
swordfish are overfished. In the HMS FMP and Amendment 1 to the 
Atlantic Billfish FMP (Billfish FMP Amendment), NMFS adopted a strategy 
for rebuilding these stocks through international cooperation at the 
International Commission for the Conservation of Atlantic Tunas 
(ICCAT). This strategy primarily involves reducing fishing mortality 
through the negotiation of country-specific catch quotas according to 
rebuilding schedules. However, the contribution of bycatch to total 
fishing mortality and the fact that ICCAT catch quotas for some species 
require that countries account for dead discards must be considered in 
the HMS fisheries. The swordfish rebuilding plan that was adopted by 
ICCAT at its 1999 meeting provides added incentive for the United 
States to reduce swordfish discards.
    In addition to ICCAT stock rebuilding efforts, several other 
applicable laws require that NMFS address bycatch issues in the HMS 
fisheries. These include the Magnuson-Stevens Act, the Marine Mammal 
Protection Act (MMPA), and the Endangered Species Act (ESA). Magnuson-
Stevens Act national standard 9 for fishery management plans requires 
U.S. action to minimize bycatch and bycatch mortality to the extent 
practicable.
    Under the MMPA, the Atlantic pelagic longline fishery has been 
listed as a Category I fishery due to the frequency of incidental 
mortality and serious injury to marine mammals. The Atlantic Offshore 
Cetacean Take Reduction Team was formed in May 1996 to address 
protected species bycatch in the Atlantic pelagic fisheries. A take 
reduction plan, submitted to NMFS in November, 1996, that contained 
measures to address the bycatch of strategic stocks of marine mammals, 
noted that additional reductions in takes of marine mammals could occur 
with closures of certain fishing areas during times of high interaction 
rates.
    Finally, under the ESA, NMFS is required to address fishery-related 
take of sea turtles that are considered threatened or endangered. 
Although most turtles are released alive, NMFS remains concerned about 
serious injuries of turtles hooked on pelagic longline gear. To the 
extent that turtle interactions occur at higher rates in certain 
fishing areas at particular times, time-area closures for pelagic 
longline fishing could affect turtle takes. An area closure to address 
swordfish discards could also help reduce sea turtle interactions if 
these animals tend to occur in the same ocean areas at the same time. 
Conversely, if sea turtle interactions are relatively higher in areas 
that remain open, fishing effort displaced from areas closed to protect 
juvenile swordfish could lead to increased turtle takes.
    In the final HMS FMP and Billfish FMP Amendment, NMFS stated that a 
comprehensive approach to time-area closures would be undertaken as 
part of a bycatch reduction strategy after further analysis of the data 
and consultation with the HMS and Billfish Advisory Panels (APs). NMFS 
held a combined meeting of the HMS and Billfish APs on June 10-11, 
1999, to discuss possible alternatives for a proposed rule under the 
framework provisions of the HMS FMP. The AP members were generally 
supportive of the time-area management strategy, provided several 
comments on temporal and/or spatial components that NMFS should 
consider further in its analyses, and requested that NMFS develop a 
written document outlining all analytical methods and results of the 
time-area evaluation. The APs' comments and suggestions were included 
in the development of a draft Technical Memorandum, which was made 
available to the public on November 2, 1999 (64 FR 59162).
    Subsequent to the release of the Technical Memorandum, NMFS 
considered three alternative actions to reduce bycatch and/or bycatch 
mortality in the Atlantic HMS pelagic longline fishery: status quo, 
gear modifications that would decrease hook-ups and/or

[[Page 47215]]

increase survival of bycatch species, and the prohibition of longline 
fishing in areas where rates of bycatch or incidental catch are higher. 
NMFS considered gear modifications beyond those examined previously 
during development of the HMS FMP. NMFS also considered a broad range 
of closures, both in terms of area and time. A proposed rule was 
published December 15, 1999 (64 FR 69982), for which alternatives were 
identified and analyzed in a draft Supplemental Environmental Impact 
Statement (64 FR 73550, December 30, 1999). The proposed rule included 
closed areas for pelagic longline gear in the western Gulf of Mexico 
and off the southeast coast of the United States.
    During the comment period on the proposed rule, NMFS received 
comment on many issues related to the proposed time/area closures. In 
particular, commenters noted that the proposed closure in the western 
Gulf of Mexico would not adequately address juvenile swordfish bycatch 
in the DeSoto Canyon area of the eastern portion of the Gulf. 
Additionally, commenters noted the significant economic impacts 
associated with large scale area closures in that vessel operators and 
shoreside support services would need considerable time for adjustment 
and relocation. Given these comments, NMFS analyzed the potential 
impacts of an additional closed area in the DeSoto Canyon. 
Subsequently, NMFS published supplementary information regarding the 
potential impacts of closing the DeSoto Canyon Area together with a 
revised summary of the IRFA prepared for the proposed rule (65 FR 
24440, April 26, 2000). The comment period for the proposed rule was 
reopened through May 12, 2000, and NMFS specifically requested comments 
on the extent to which delayed effectiveness could mitigate the 
economic impacts of area closures.

ESA Consultation

    On November 19, 1999, NMFS reinitiated consultation under section 7 
of the ESA based on preliminary reports that observed incidental take 
of loggerhead sea turtles by the Atlantic pelagic longline fishery 
during 1999 had exceeded levels anticipated in the Incidental Take 
Statement (ITS) previously issued for the HMS FMP. Additionally, the 
consultation included the pelagic longline management rulemaking that 
was in preparation, as it was recognized that the time/area closures, 
if implemented, could affect the overall interaction rates with sea 
turtles. In a Biological Opinion issued on June 30, 2000 (BO), NMFS 
concluded that operation of the pelagic longline fishery was likely to 
jeopardize the continued existence of loggerhead and leatherback sea 
turtles. The BO identified the Reasonable and Prudent Alternatives 
(RPAs) necessary to avoid jeopardy and listed the Reasonable and 
Prudent Measures (RPMs) and Terms and Conditions (TCs) necessary to 
authorize continued take as part of a revised ITS. While the 
implications of the BO are discussed in this final rule, NMFS will 
undertake additional rulemaking and non-regulatory actions as required 
to implement the additional management measures required under the BO.

Response to Comments

    NMFS received several hundred comments and several thousand form 
letters during the 2 comment periods, 13 public hearings, and 2 joint 
AP meetings of this rulemaking. Following are summaries of the comments 
together with NMFS' responses.

General

    Comment 1: There is no conservation benefit from the proposed 
closures except for small swordfish; therefore, the proposed time/area 
closures will probably have an imperceptible effect on rebuilding 
overfished HMS.
    Response: NMFS disagrees. Depending on the amount of redistribution 
of effort under the proposed closed areas, other species, such as 
sailfish and large coastal sharks, may benefit from these closures. 
Under the no-effort redistribution model, billfish discards are reduced 
by 19 to 43 percent, although, as discussed in the FSEIS, the actual 
benefit of these time/area closures is likely somewhere between the 
extremes predicted by the effort redistribution models. Further, 
prohibiting the use of live bait will provide a 10- to 46-percent 
reduction in billfish discards in the Gulf of Mexico. National standard 
9 of the Magnuson-Stevens Act requires that FMPs reduce bycatch to the 
extent practicable. Although it was not a stated objective of the final 
rule to rebuild overfished stocks through time/area closures or gear 
modifications, some benefit to rebuilding may also be experienced to 
the degree that mortality rates will be reduced for juveniles, pre-
adults, and reproductive fish. Also, to the extent that the United 
States can use the domestic bycatch reduction program, including time/
area closures and gear modifications, to convince other ICCAT member 
nations that bycatch should be minimized, these actions may have a 
significant impact on Atlantic-wide rebuilding of overfished HMS 
stocks.
    Comment 2: NMFS is already past the deadline for a rebuilding 
program for overfished HMS that includes bycatch reduction measures.
    Response: NMFS disagrees. The HMS FMP and the Billfish FMP 
Amendment include rebuilding plans that meet Magnuson-Stevens Act 
guidelines. The swordfish rebuilding program recently adopted by ICCAT 
is based in large part on the rebuilding plan outlined in the HMS FMP. 
Similarly, the rebuilding plans for blue and white marlin emphasize the 
importance of international efforts to reduce bycatch and bycatch 
mortality. NMFS implemented bycatch reduction measures in the HMS FMP, 
including limited access for swordfish and shark fisheries, time/area 
closure for pelagic longline gear to reduce bluefin tuna dead discards, 
limiting the length of mainline for longline fishermen, and other 
measures summarized in the HMS FMP. The Billfish FMP Amendment also 
outlined a bycatch reduction strategy. NMFS expects that additional 
measures will continue to be implemented for all HMS fisheries, 
including educational workshops that share results of recent research 
on gear modifications. Finally, as a result of the jeopardy finding in 
the BO, NMFS will initiate implementation of the requirements of the BO 
via additional rulemaking and other non-regulatory means.
    Comment 3: NMFS should extend the VMS implementation deadline past 
June 1, 2000.
    Response: NMFS agrees. On April 19, 2000 (65 FR 20918), NMFS 
extended the effective date until September 1, 2000. This will provide 
adequate time (2 months) to ensure that all systems are fully 
functional prior to the implementation of the time/area closures. Also, 
implementation of the measures in the BO may require a time/area 
closure and/or gear setting restrictions to be enforced by VMS.
    Comment 4: As the swordfish stocks continue to rebuild, the United 
States may need more U.S. boats to harvest the swordfish quota.
    Response: NMFS disagrees. The final regulations implementing the 
HMS FMP (May 28, 1999; 64 FR 29090), NMFS established a limited access 
program for Atlantic swordfish, Atlantic shark, and the pelagic 
longline sector of the Atlantic tuna fisheries. A description of the 
qualifying requirements for a directed or incidental limited access 
permit is contained in Chapter 4 of the HMS FMP. Using a multi-tiered 
process based on participation, approximately 450 limited access 
swordfish permits (directed and incidental) were awarded.

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Subsequent examination of fishing activity by these vessels in 
preparation of the proposed and final rule indicates that a significant 
portion did not report any HMS landings in either 1997 (331 vessels 
reported HMS landings) or 1998 (208 vessels reported HMS landings). 
Currently, the North Atlantic swordfish stock is estimated to be at 65 
percent of the level needed to support maximum sustainable yield (MSY). 
When the stock attains the level consistent with MSY, it is likely that 
the number of U.S.-flagged vessels with directed or incidental 
swordfish permits will be sufficient to handle any potential increase 
in the U.S. swordfish quota.
    Comment 5: NMFS should be concerned about small sources of 
mortality that may exacerbate overfishing and slow rebuilding.
    Response: NMFS agrees and is concerned about all sources of 
mortality on HMS stocks. NMFS is committed to work through available 
international fora to rebuild overfished HMS stocks, even when U.S. 
fishing is responsible for only a small source of the total Atlantic-
wide mortality. The rebuilding plans provided in the Billfish FMP 
Amendment are indicative of this commitment. Further, the Agency is 
required by the Magnuson-Stevens Act to take appropriate conservation 
actions, while considering the social and economic impacts on fishermen 
and fishing communities, and as such must consider management actions 
that meet the national standard guidelines.
    Comment 6: NMFS should increase outreach efforts to inform the 
public of the need for management of HMS resources.
    Response: NMFS agrees but is currently restricted from increasing 
outreach efforts by competing demands for funding (e.g., funds for 
observers, science). Note that the NMFS Highly Migratory Species 
Management Division posts current events and useful documents on the 
website www.nmfs.noaa.gov/sfa/hmspg.html. NMFS also produces 
informational brochures on current fishing regulations and mailouts, 
and NMFS uses a fax network for distribution of information. NMFS 
scientists are also participating in periodic outreach programs to 
share information on life history of billfish, sharks and tunas, as 
well as sharing information on methods that will enhance survival of 
released fish. An information hotline has also been established that 
summarizes current fisheries regulations as they apply to HMS. The 
hotline can be accessed by calling toll-free at 1-800-894-5528. 
Additional outreach efforts will be implemented as funding becomes 
available.
    Comment 7: The proposed closed areas will result in an increase in 
swordfish imports into the United States; this would deny U.S. seafood 
consumers access to fresh, quality-controlled fish.
    Response: NMFS does not anticipate that the U.S. fleet will be 
unable to meet its quota as a result of this final rule. Therefore, it 
is unlikely that imports will increase as a result of closed areas, 
although imports may increase for other unrelated reasons. NMFS does 
regulate the swordfish market other than to prohibit the import of 
undersized Atlantic swordfish into the U.S., which is monitored through 
the Certificate of Eligibility program. NMFS does not anticipate that 
this rule would affect the availability of high-quality, inspected 
seafood products provided to citizens of the United States by U.S. 
commercial fishermen. Imports of fishery products into the United 
States are also subject to the same hazard analysis and critical 
control point (HACCP) guidelines as are domestic landings.
    Comment 8: The proposed closed areas are not equitable for 
constituents in different states.
    Response: As required by national standard 2 of the Magnuson-
Stevens Act, NMFS utilized the best available scientific information to 
develop the proposed rule and the final action. NMFS used logbooks, 
observer programs, and various scientific studies to identify 
distributional patterns of seasonal abundance, by species, and areas of 
overlap between various HMS, protected and endangered species, as 
defined by concentrations of bycatch and incidental catch from pelagic 
longline gear in the U.S. EEZ. Therefore, in large part, the biology of 
the species dictated the locations of the closures. In the selection of 
the final actions, international obligations and the national standards 
were considered, including the issue of equity, as required by national 
standard 4. While the final closed areas may have larger impacts on 
fishermen who fish in those areas, such impacts are not inconsistent 
with national standard 4.
    Comment 9: NMFS is ignoring sea bird bycatch by the recreational 
fishermen who troll for HMS.
    Response: NMFS disagrees that it is ignoring sea bird bycatch. NMFS 
has no data indicating that sea birds are caught and discarded in the 
recreational fishery for HMS. NMFS is currently implementing a logbook 
and a voluntary observer program for charter/headboats involved with 
HMS fisheries. This program will provide additional information on 
recreational fishing, including any possible interactions with seabirds 
or other protected or endangered species. If the data collected 
indicate that a sea bird bycatch problem exists in the U.S. 
recreational troll fisheries, NMFS will take appropriate action.
    Comment 10: NMFS should quantify bycatch and bycatch mortality in 
the recreational fishery.
    Response: NMFS agrees that quantifying bycatch and bycatch 
mortality in recreational fisheries is important and has collected data 
used to quantify bycatch of large pelagics in the recreational fishery. 
Such data are reported in the U.S. National Report prepared each year 
by NMFS for submission to ICCAT. The Billfish FMP Amendment established 
a catch-and-release fishery management program for the recreational 
Atlantic billfish fishery; therefore, all billfish released alive, 
regardless of size, by recreational anglers are not considered as 
bycatch. However, the mortality associated with the capture-and-release 
event is an important component to quantify for population assessment. 
NMFS currently collects data on the number of billfish retained and 
released at selected tournaments. NMFS has funded studies to quantify 
the bycatch mortality in bluefin tuna and billfish recreational 
fisheries, and NMFS scientists have recently reported on the use of 
circle hooks to reduce release mortality for the recreational billfish 
fishery. NMFS encourages fishermen to handle and release HMS in a 
manner that maximizes their chances of survival.
    Comment 11: NMFS should re-establish the Second Harvest Program for 
swordfish whereby undersized swordfish are fed to the hungry instead of 
being discarded as bycatch.
    Response: The specific regulations for the swordfish donation 
program were eliminated when the HMS regulations were consolidated in 
implementing the final HMS FMP and Billfish FMP Amendment (May 29, 
1999; 64 FR 29090). During the consolidation process, the swordfish 
donation program regulations were evaluated under the President's 
Regulatory Reinvention Initiative. Given the low level of participation 
in the program at the time and the anticipated reduction in dead 
discards of undersized swordfish as the U.S. moved to adopt the 
alternative minimum size, it was determined that potential scale of 
operations did not require extensive regulatory text. However, under 
the current consolidated regulations, a fishermen could apply for an 
Exempted Fishing Permit (EFP) to authorize the

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donation of certain fish that could not otherwise be retained (e.g., 
swordfish in excess of the bycatch limits in effect for the particular 
vessel). Thus, the regulations still provide a mechanism for a donation 
program.
    Comment 12: NMFS regulations force pelagic longline fishermen to 
discard swordfish, thus increasing bycatch in this fishery. NMFS should 
have a higher minimum size with a tolerance for undersized fish to 
reduce bycatch.
    Response: Swordfish caught below the minimum size are regulatory 
discards and, as such, are considered bycatch. The minimum size limit 
was established to create an incentive for fishermen to avoid areas of 
undersized swordfish, though this was found to be less successful than 
anticipated. NMFS discontinued the use of a higher minimum size with a 
15-percent tolerance for smaller fish because of concerns about the 
difficulty in enforcing such a measure. NMFS proposed a lower minimum 
size with no tolerance, and industry participants largely supported 
this decrease, stating that most of the fish landed under the tolerance 
provisions were just under the higher minimum size. In the Spring of 
1999, the ICCAT Advisory Committee recommended that NMFS evaluate the 
efficacy of the swordfish minimum size limit and reconsider eliminating 
that size limit if warranted. Pending the outcome of that evaluation, 
ICCAT is expressly considering discards in the swordfish catch 
allocation scheme. Under the 1999 ICCAT recommendation, total North 
Atlantic discards of undersized swordfish are subject to an allowance 
of 400 mt Atlantic-wide for the 2000 fishing season; the U.S. receives 
80 percent of this dead discard allowance (320 mt). The United States 
is obligated by international agreement to address swordfish discards. 
The time/area closures defined in the final rule will significantly 
reduce swordfish discards by U.S. pelagic longline vessels. Although 
some small swordfish will still be encountered under time/area 
management, the overall proportion of the catch that is discarded will 
be reduced and may, in fact, provide an opportunity to consider 
alternatives to minimum sizes in the international management of 
Atlantic swordfish.
    Comment 13: The proposed closed areas are expected to increase the 
catch of mako, thresher, and blue sharks. The pelagic shark stocks will 
not be able to withstand the possible increase in pelagic shark 
mortality (landings and discards) associated with pelagic longline 
effort redistribution.
    Response: Although the status of the pelagic sharks stock is 
currently designated as unknown, NMFS disagrees that the final rule 
will have a significant adverse impact on pelagic shark mortality. 
However, this does not mean that NMFS is not concerned about the status 
of these stocks. In fact, the HMS FMP established a blue shark quota, 
including dead discards from pelagic longline gear, that effectively 
sets an upper limit to the magnitude of impacts from displaced effort. 
In analyzing the impacts of the final closed areas, NMFS predicts only 
a 4-percent increase in pelagic shark landings and estimated discard 
rates increase by 8 percent under the effort redistribution model, 
which may overestimate impacts on bycatch and target catch. NMFS will 
closely monitor all pelagic shark landings through logbook and observer 
programs to follow changes in landing patterns resulting from effort 
redistribution.
    Comment 14: The proposed time/area closures will reduce gear 
conflicts between the growing recreational HMS fisheries and commercial 
fishing communities, but in some areas, particularly the eastern Gulf 
of Mexico and Mid-Atlantic Bight, conflicts could potentially increase.
    Response: NMFS previously identified gear conflicts between 
recreational and commercial entities in the 1988 Atlantic Billfish FMP 
and in the 1999 Amendment to that FMP. NMFS agrees that conflicts 
between recreational and commercial fishing groups could escalate in 
areas that remain open as a result of pelagic longline effort 
redistribution. Mitigating possible user conflicts was one of several 
reasons that temporal and spatial components of the proposed action 
were refined in the final action and, in the case of the western Gulf 
of Mexico, replaced by a live bait prohibition. Any management measure 
leading to a reduction in bycatch of billfish from commercial fishing 
gear may lead to localized increases in angler success and resultant 
economic benefits to associated U.S. recreational industries.
    Comment 15: NMFS should consider implementing Individual 
Transferable Quotas (ITQs) in the future as a bycatch reduction 
measure, particularly for bluefin tuna in the longline fishery.
    Response: Implementation of an ITQ scheme, with the sole or even 
partial purpose of reducing discards, could be considered and would 
require extensive detailed analysis before proceeding. However, NMFS is 
prohibited by the Magnuson-Stevens Act from implementing new ITQ 
programs at this time. The HMS FMP specifically addressed the bycatch 
of bluefin tuna by the pelagic longline fishery through implementation 
of a time/area closure during June off the Mid-Atlantic Bight. Initial 
results of the efficacy of the first closure (June 1999) are 
preliminary and do not indicate that the anticipated reductions were 
fully achieved. NMFS is currently reviewing whether the results are due 
to (1) a limited time frame for outreach (the final rule was published 
on May 28, 1999, with an effective date of June 1, 1999, for the 
bluefin tuna pelagic longline closure); (2) enforcement issues (VMS 
implementation was delayed until September 1, 2000); or, (3) inter-
annual variation in the areas of BFT interaction (increased discards 
occurred outside of the closed area).
    Comment 16: Large closed areas will pose significant enforcement 
challenges to U.S. Coast Guard (USCG) since the areas identified for 
closure in the proposed rule are not routinely patrolled by cutters. 
(This comment received from the USCG was followed up by a comment that 
supports the use of VMS to enforce closed areas.)
    Response: NMFS recognizes the need for effective enforcement of 
these closed areas and, as such, supports the use of VMS, which will 
become effective for all pelagic longline vessels on September 1, 2000 
(65 FR 20918; April 19, 2000). USCG resources will continue to be 
utilized, as that Agency is capable of confirming a vessel's location 
and whether it is fishing in the closed area. NMFS has entered into a 
cooperative agreement with the USCG to assist in the monitoring of 
fishing vessels at USCG locations.
    Comment 17: NMFS should define the closed area by latitude and 
longitude in the regulatory text, including the designation for the 
U.S. EEZ.
    Response: Except for a small portion of the East Florida Coast 
area, NMFS provides latitude and longitude coordinates for the 
boundaries to the closed areas in the regulatory text of this final 
rule. Given the curvature of the EEZ boundary between the U.S. and the 
Bahamas, it would be too complicated to express that segment of the 
boundary in latitude and longitude coordinates. NMFS notes that the EEZ 
boundary is plotted on most NOAA nautical charts and that vessel 
operators fishing that area must be familiar with the EEZ boundary in 
any case, as they are not authorized to fish commercially in the 
Bahamas.
    Comment 18: NMFS should take these proposed closed areas to ICCAT 
and encourage international closed areas.

[[Page 47218]]

    Response: NMFS supports consideration of closed areas and gear 
modifications to reduce undersized swordfish catch and fishing 
mortality and to protect spawning and/or nursery areas for swordfish 
and billfish on an Atlantic-wide basis, as discussed in the HMS FMP and 
Billfish FMP Amendment. In 1999, ICCAT adopted a U.S.-sponsored 
resolution for the development of possible international time/area 
closures (and gear modifications), and the Standing Committee for 
Research and Statistics (SCRS) is scheduled to provide a report on this 
topic at the ICCAT meeting in 2002. The final rule will be included in 
the U.S. National Report that will be submitted to ICCAT in October, 
2000.
    Comment 19: NMFS should ban pelagic longline gear or, at least, ban 
the use of this gear inside the U.S. EEZ.
    Response: NMFS disagrees. Banning pelagic longline gear in the U.S. 
EEZ is not necessary to protect highly migratory species. Bycatch can 
be addressed through time/area closures, education, and gear 
modifications. Requiring all vessels using pelagic longline gear to 
fish only outside the 200 mile limit may also be inconsistent with 
consideration of safety issues as required under national standard 10.
    Comment 20: Closures are not necessary; swordfish are rebuilding.
    Response: NMFS agrees that the North Atlantic swordfish stock may 
have stabilized and that an international rebuilding program is in 
place. To the extent that the time/area closures will reduce bycatch 
and bycatch mortality of undersized swordfish, pre-adults, and spawning 
fish, the closures will enhance stock rebuilding. Furthermore, NMFS is 
required by an ICCAT recommendation and under national standard 9 to 
minimize bycatch, to the extent practicable. Providing protection of 
small swordfish and reproducing fish though time/area closures is 
particularly critical as stocks begin to rebuild. The United States is 
allocated 29 percent of the north Atlantic swordfish quota (1997 
through 1999), and approximately 80 percent of the reported dead 
discards. Under the 1999 ICCAT recommendation, the total North Atlantic 
dead discard allowance for the 2000 fishing season is 400 mt; the U.S. 
receives 80 percent of the North Atlantic dead discard allowance (320 
mt). The dead discard allowance for the United States is reduced to 240 
mt in 2001, 160 mt in 2002, and will be phased out by 2004, with any 
overage of the discard allowance coming off the following year's quota. 
A total of 443 mt of swordfish were reported discarded by U.S. 
fishermen in the North Atlantic during 1998. Under the time/area 
strategy of the final rule, the no effort redistribution model predicts 
a 41.5-percent reduction in discards; under the effort redistribution 
model, discards are reduced by 31.4 percent. The closures could 
potentially reduce discards from 1998 levels to 259 mt under the no-
effort redistribution model and to 304 mt under the effort 
redistribution model, thereby meeting at least the year 2000 discard 
allocation levels without affecting the subsequent year's quota.
    Comment 21: NMFS should increase observer coverage of all 
components of HMS fisheries, including the pelagic longline fishery.
    Response: NMFS agrees that it would be beneficial to increase 
observer coverage to document bycatch in all HMS fishing sectors. 
Observer coverage of the pelagic longline averaged between 4 and 5 
percent between 1992 through 1998; a total of 2.9 percent of pelagic 
longline sets were observed during 1998. However, given current fiscal 
constraints, NMFS will not likely be able to significantly increase 
observer coverage in the pelagic longline fishery. NMFS will 
investigate additional funding mechanisms. Depending on funding, NMFS 
may implement an initial phase of the HMS charter/headboat and 
voluntary observer program in the summer of 2000 that will provide 
additional bycatch information from recreational fisheries.
    Comment 22: NMFS should develop a comprehensive bycatch strategy, 
including specific targets for bycatch reduction.
    Response: NMFS disagrees that setting fixed bycatch targets is 
necessary; in fact, such targets may be counterproductive. The multi-
species approach followed in the development of the proposed and final 
action to reduce bycatch, bycatch mortality, and incidental catch 
precludes setting target reduction for specific species without 
considering the impact on the remaining portion of the catch 
composition. For example, if the time/area closures were simply based 
on reducing swordfish discards by a set percentage, a concomitant 
increase in bycatch of other species could occur, or target catches 
could be reduced more than necessary to achieve national standard 9 
mandates. NMFS agrees that a comprehensive bycatch strategy is 
necessary and has outlined a plan that incorporates data collection, 
analysis, and measures that minimize bycatch, to the extent 
practicable. This strategy is outlined in the HMS FMP and the Billfish 
FMP Amendment.
    Comment 23: NMFS should conduct educational workshops.
    Response: NMFS supports the use of educational workshops to 
disseminate information on current research regarding bycatch reduction 
and to provide a forum through which fishermen can share bycatch 
reduction techniques with each other. NMFS scientists periodically hold 
seminars for fishermen to discuss the benefits of circle hooks and 
other handling techniques in the recreational billfish fishery. NMFS 
will seek input from representatives of fishing organizations and from 
the AP members regarding opportunities for workshops. Depending upon 
available funding and staff, NMFS will hold educational workshops to 
examine bycatch reduction activities in HMS fisheries, both for 
recreational and commercial fishermen.
    Comment 24: NMFS needs to be able to respond quickly to results of 
monitoring and evaluation of closed areas. NMFS should develop a 
framework process for adjusting closed areas, if necessary, in a timely 
manner.
    Response: NMFS agrees that a quick response to shifting fishing 
effort patterns is necessary. NMFS is currently able to adjust or 
develop new closed areas through the framework process (proposed and 
final rules, including public comment period) without amending the HMS 
FMP in the event that closed areas need to be altered to maximize the 
benefits to the nation. However, it will take time to collect and 
analyze the appropriate information, including data from the mandatory 
logbooks, observer program, and VMS.
    Comment 25: NMFS should reduce effort in the longline fishery, not 
just reduce bycatch.
    Response: The intent of this rulemaking is not to reduce effort in 
the fishery, but to reduce bycatch while minimizing the reduction of 
target catch by shifting effort away from areas with high bycatch and 
incidental catch. NMFS agrees that under a quota system, a time/area 
closure scheme will not necessarily reduce effort, although some vessel 
operators may choose to discontinue fishing due to economic or social 
factors. The use of time/area closures and gear restrictions 
(prohibition of live bait) was deemed by NMFS to be the best available 
management tool to reduce current levels of bycatch by the pelagic 
longline fishery, as required by national standard 9.
    Comment 26: NMFS should consider additional actions to address the 
impact of the increase in sea turtle interactions resulting from 
pelagic longline effort redistribution.
    Response: NMFS agrees that sea turtle interactions with pelagic 
longline gear

[[Page 47219]]

must be minimized as required by the ESA for listed species. On 
November 19, 1999, NMFS reinitiated consultation with NMFS' Office of 
Protected Resources based on preliminary information on the 1999 take 
levels by the pelagic longline fishery. The BO issued on June 30, 2000 
concluded that the continuation of the pelagic longline fishery could 
jeopardize the continued existence of loggerhead and leatherback sea 
turtles. The final time/area closures along the southeastern U.S. 
Atlantic coast were temporally and spatially reconfigured to mitigate, 
to the extent practicable, the impact of effort redistribution on sea 
turtle interactions. Bycatch rates, particularly for sea turtles, may 
be over-estimated by the effort redistribution model because the model 
estimated bycatch rates by assuming random or constant catch-per-unit-
effort in all remaining open areas. This estimation procedure could 
skew results for certain species if those species are concentrated in 
certain areas (such as sea turtles in the Grand Banks), instead of 
being randomly distributed over the entire open area. Fishing 
activities will be monitored using VMS, as well as through logbooks and 
on-board observers, to determine impacts of actual effort 
redistribution, which may require further Agency action to address 
increased turtle takes. NMFS is initiating efforts to address the 
requirements of the BO, including possible regulatory and non-
regulatory actions.
    Comment 27: NMFS is proceeding with the use of time/area management 
strategies only because of litigation filed against NMFS by various 
environmental groups following publication of the final rules 
implementing the HMS FMP.
    Response: NMFS disagrees. During public hearings held during the 
Fall of 1998 as part of the scoping process used to develop management 
alternatives for the draft HMS FMP and the Billfish FMP Amendment, NMFS 
received many comments regarding the utility of time/area closures to 
reduce bycatch in various HMS fisheries, including pelagic longline 
gear, and their use in protecting essential fish habitat (e.g., 
spawning and nursery grounds). The draft HMS FMP included a closure of 
a portion of the Florida Straits to reduce swordfish discards. Comments 
on the proposed action indicated that the area was spatially and 
temporally too limited to accomplish any significant reduction in 
bycatch, and, consequently, the area was not included as part of the 
final action. However, the HMS FMP clearly stated that, following 
publication of a final rule, an evaluation of wide-ranging time/area 
closures would be completed and implemented, if warranted. NMFS honored 
that commitment through the preparation of the Draft Technical 
Memorandum and the proposed and final rules, establishing both time/
area and gear modifications to reduce bycatch by the U.S. Atlantic HMS 
pelagic longline fishery.
    Comment 28: The comment period for the DeSoto Canyon area closure 
alternative is too short. Additional time must be provided to allow 
those in the affected area to adequately respond to this potentially 
devastating closure.
    Response: NMFS disagrees that additional time was warranted for 
public comment on the DeSoto Canyon closure alternative. During the 
public hearing period for the proposed rule (December 15, 1999, to 
March 1, 2000), NMFS received many comments indicating that an 
additional closure was needed in the northeastern Gulf of Mexico 
because of the historically high swordfish discard rate in the area. In 
response to this comment, NMFS conducted additional analysis and 
identified an area generally around the DeSoto Canyon that in fact did 
have high incidence of discards of swordfish relative to swordfish 
kept. Although the DeSoto Canyon is included within areas that were 
analyzed in the DSEIS and draft Technical Memorandum (made available 
November 1999), NMFS decided that an additional comment period was 
needed specifically on the potential utility of this closure because 
pelagic longline effort has declined by greater than 50 percent in this 
area over the past 5 years. NMFS notified the public of its intentions 
to consider a sub-area of previously analyzed areas in the Gulf of 
Mexico (i.e., DeSoto Canyon) through the HMS fax network, which is sent 
to thousands of permit holders, seafood dealers and fish houses 
throughout the eastern United States. In addition, NMFS mailed the 
Federal Register notice with supplementary information summarizing the 
biological, economic, and social analysis of the DeSoto Canyon closure, 
and the VMS materials to all HMS pelagic longline permitees. As a 
result of the April 26, 2000, Federal Register notice (65 FR 24440) 
soliciting comment on this alternative, NMFS received hundreds of 
responses, indicating that adequate time was provided for comment.
    Comment 29: Fish farming is the only answer to providing fish as a 
food for our population.
    Response: NMFS agrees that aquaculture and mariculture play and 
have an important role to play in providing fishery products, but 
disagrees that they are the only answer.

Use of Time/Area Closures to Reduce Bycatch

    Comment 1: NMFS should use time/area closures to reduce bycatch.
    Response: NMFS agrees that closed areas can be an effective way to 
reduce bycatch, both in the U.S. and international pelagic longline 
fisheries, and this final rule implements time/area closures for the 
pelagic longline fisheries in the Gulf of Mexico and along the 
southeastern U.S. Atlantic coast. Due to efforts of the United States, 
ICCAT has asked its scientific committee to explore the use of closed 
areas throughout the management unit. Swordfish, marlin, sailfish, and 
other HMS are considered overfished and are currently experiencing 
overfishing Atlantic-wide. The rebuilding plans established in the HMS 
FMP and the Billfish FMP Amendment will be enhanced to the extent that 
reduction of bycatch will decrease mortality of juveniles and 
reproductive fish. Further, a reduction in swordfish discards is now 
critical for the U.S. pelagic longline fishery as a result of the 1999 
ICCAT recommendation setting an North Atlantic discard allowance that 
is incrementally reduced to a zero tolerance level by 2004.
    Comment 2: NMFS should change the size and/or shape of the proposed 
western Gulf of Mexico closed area.
    Response: NMFS agrees and is closing the DeSoto Canyon area year-
round to pelagic longline fishing to address undersized swordfish 
discards and to prevent further increases in swordfish discards as a 
result of possible effort displacement to this area in response to the 
southeastern U.S. Atlantic coastal closures. Further, NMFS has 
attempted to mitigate the economic effects of the actions specifically 
aimed at reducing billfish bycatch, by eliminating the proposed western 
Gulf closure and by prohibiting use of live bait by pelagic longline 
vessels in the Gulf of Mexico instead. This gear modification is 
potentially as effective in reducing sailfish discards as the western 
Gulf closure and is approximately half as effective in reducing marlin 
discards. However, in consideration of the magnitude of U.S. billfish 
discards relative to Atlantic-wide levels and the extent of the 
economic impacts associated with the proposed western Gulf closure, 
modifying fishing practices is a viable alternative that effectively 
accomplishes the objectives of reducing billfish bycatch while allowing 
fishing to continue in the western Gulf of Mexico.
    Comment 3: Several commenters supported a closure of the Charleston

[[Page 47220]]

Bump area. Conversely, other commenters stated that the level of 
fishing activity in the Charleston Bump area does not warrant closure 
of this area.
    Response: Although pelagic longline activity in the Charleston Bump 
area results in bycatch of small swordfish throughout the year, over 70 
percent of the swordfish bycatch takes place during February through 
April. Therefore, NMFS is closing the Charleston Bump area for this 3-
month time frame of the highest discard rates. This partial year 
closure addresses the bulk of swordfish discards while minimizing 
social and economic impacts of the rule by allowing fishing for 9 
months, rather than the year-round closure included in the proposed 
Agency action. Minimizing the temporal component of the Charleston Bump 
closure also reduces the magnitude of potential increases in sea 
turtles interactions and white marlin discards predicted by the 
displaced effort model for the proposed rule. Nevertheless, NMFS is 
aware of the overall concerns regarding this area relative to potential 
increases in effort and concomitant effects on bycatch and incidental 
catch and will monitor fishing activity to determine whether a larger/
longer closure is necessary in the Charleston Bump area. If necessary, 
NMFS would pursue further action through the FMP framework process.
    Comment 4: NMFS should consider additional pelagic longline closed 
areas in a future rulemaking.
    Response: NMFS agrees that additional closed areas may be necessary 
to address bycatch, bycatch mortality, and incidental catch, 
particularly to address sea turtle takes as discussed in section 5.8 of 
the FSEIS. Shifts in fishing effort patterns may also warrant future 
rulemaking to close affected areas. NMFS will continue to monitor the 
pelagic longline fleet throughout its range.
    Comment 5: NMFS should change the shape, size, and/or timing of the 
South Atlantic proposed closed area.
    Response: NMFS agrees. NMFS is closing the southern part of the 
proposed Southeast area below 31 deg.N latitude (East Florida Coast) 
year-round in order to maximize the bycatch reduction benefits. The 
northern portion of the proposed closed area (Charleston Bump) is 
closed for the period of highest swordfish discards during February 
through April. NMFS may consider a larger closure in the Charleston 
Bump area if effort increases significantly in this area, resulting in 
increased incidental catches or discards of overfished HMS or protected 
species. NMFS would pursue this action through the FMP framework 
process.
    Comment 6: NMFS should include a closure of the Mid-Atlantic Bight 
and/or a Northeast area to pelagic longline gear.
    Response: NMFS disagrees that this rule should close the Mid-
Atlantic Bight and/or Northeast coastal statistical areas. The areas 
closed by this rule are considered temporal and spatial ``hot spots'' 
for HMS bycatch from U.S. pelagic longline effort within the U.S. EEZ, 
as evaluated by the frequency of occurrence and the relationship 
between total catch and discard rates. NMFS has included a closure in 
the mid-Atlantic area as part of the final HMS FMP to reduce bluefin 
tuna discards from pelagic longline gear. Nevertheless, NMFS recognizes 
that pelagic longline effort will likely increase in areas that remain 
open (as analyzed in the redistribution of effort model in FSEIS). By 
minimizing the size of the closure in the Gulf of Mexico and shortening 
the closed season for the Charleston Bump area, NMFS expects that the 
effects of effort redistribution would be lessened from those evaluated 
in the DSEIS and proposed rule. Considering HMS bycatch, closures of 
the Mid-Atlantic Bight, beyond the June pelagic longline closure for 
bluefin tuna discards, or in the offshore waters in the Atlantic Ocean 
off the northeastern United States are not warranted at this time. NMFS 
will continue to monitor the pelagic longline fleet throughout its 
range and will take appropriate action if necessary through the 
proposed and final rule process to reconfigure closures. In addition, 
as required by the BO, NMFS will consider measures to reduce and 
monitor interactions with sea turtles, particularly in the pelagic 
longline fishing grounds on the Grand Banks. Such measures may include 
area closures.
    Comment 7: NMFS should close areas to both commercial and 
recreational pelagic fishing. NMFS should consider closing areas to 
recreational rod and reel fishermen, particularly to protect small 
bluefin tuna.
    Response: NMFS disagrees. The closures included in the final rule 
address the requirements of national standard 9, while minimizing, to 
the extent practicable, the significant economic impacts that will be 
experienced by this fishery, as required by national standard 8. 
Monitoring programs in place do not identify the recreational fishery 
as a source of excessive bycatch. In fact, NMFS established a catch-
and-release fishery management program in the Billfish Amendment in 
recognition of the operational patterns of the recreational fishery to 
encourage further catch and release of Atlantic billfish. However, NMFS 
continues to address both monitoring of the recreational fishery and 
any bycatch mortality that does occur. At this time, NMFS encourages 
recreational fishermen to increase survival of released fish through 
the use of dehooking devices, circle hooks, and other gear 
modifications that may reduce stress on the hooked fish. Further, 
depending upon the availability of funding, NMFS will offer educational 
workshops in order to reduce bycatch in the recreational fishery.
    Comment 8: NMFS should consider ``rolling closures'' to spread the 
impacts throughout the region.
    Response: NMFS considered and rejected rolling closures. The HMS 
and Billfish APs advised NMFS that rolling closures may not be 
effective. MFS conducted analyses to consider closures with varying 
spatial limitations on a seasonal basis along the southeastern U.S. 
Atlantic coast; however, none were as effective as the final action 
(see section 7 of the FSEIS). Economic impacts of the closures were 
minimized, to the extent practicable, in light of the objectives of the 
conservation measures.
    Comment 9: NMFS should use oceanographic conditions to define the 
size, shape, and timing of area closures.
    Response: NMFS agrees that many life history characteristics of HMS 
are driven by oceanographic conditions, including the strength of the 
Gulf Stream in the Atlantic, the loop current in the Gulf, and the 
eddies that spin off these structures. By following long-term 
distributional patterns in establishing the temporal and spatial 
components of the closures, oceanographic conditions were indirectly 
utilized in defining and evaluating the effectiveness of the time/area 
closures. The sizes of the closures around the Charleston Bump and 
DeSoto Canyon are examples of how NMFS accounted for variations in the 
current patterns to establish the closed area boundaries.
    Comment 10: NMFS should alter the closed areas to be consistent 
with Congressional proposals.
    Response: NMFS disagrees. The objectives of the legislative 
proposals are not identical with those of this action. This final rule 
reflects the four objectives stated in the proposed rule: (1) maximize 
the reduction of finfish bycatch; (2) minimize the reduction in target 
catch of swordfish and other species; (3) consider impacts on the 
incidental catch of other species to minimize or reduce incidental 
catch levels; and (4) optimize survival of bycatch and incidental catch 
species.

[[Page 47221]]

NMFS has reviewed the various legislative proposals and provided, in 
testimony before Congress, an analysis of the relative effectiveness of 
the closures following the methods outlined in the FSEIS. In addition 
to bycatch reduction, the legislative actions also consider gear 
interactions and economic mitigation through a buyout program, which 
are beyond the scope of this rulemaking.
    Comment 11: The closures proposed by NMFS ignore an historically 
high area of swordfish discards and nursery grounds in the DeSoto 
Canyon in the northeastern Gulf of Mexico.
    Response: NMFS agrees and is closing an area in the northeastern 
Gulf of Mexico that includes the DeSoto Canyon. In the draft Technical 
Memorandum issued with the proposed rule, NMFS had evaluated the 
closure of a larger area in the Gulf of Mexico (area Bill D) that 
included the DeSoto Canyon. However, the primary objective for closures 
in the Gulf of Mexico in the proposed rule was to reduce billfish 
discards in the western Gulf of Mexico. In responding to comments on 
the use of live bait, NMFS noted in the FSEIS (see section 7.2) that 
the higher discards in the western Gulf were a likely result of fishing 
practices rather than a reflection of relatively higher abundance. 
Historically, catches of small swordfish were high in the DeSoto Canyon 
area; however there has been considerably less effort in this area in 
recent years, which is likely a reflection of the stricter minimum size 
limit for swordfish with no tolerance. Further rationale for the 
northeastern Gulf of Mexico closure is to prevent additional effort in 
this area by pelagic longline fishermen displaced from the southeastern 
U.S. Atlantic coast closures, which could negate the effectiveness of 
East Florida Coast and Charleston Bump closures in reducing swordfish 
discards.
    Comment 12: NMFS should reconsider the proposed closed areas 
because the increase in the bycatch of blue marlin, white marlin, and 
large coastal sharks is not ``worth'' the decrease in swordfish bycatch 
expected to result from the proposed closed areas.
    Response: The effort redistribution model used in the DSEIS and 
FSEIS is based on the assumption that all effort in the closed areas is 
randomly distributed throughout the remaining open areas and, as such, 
offers an estimation of the ``worst-case scenario'' from a biological 
perspective. This model estimates that discards of blue marlin could 
increase by 6.6 percent and white marlin by 10.8 percent. Blue marlin 
bycatch rates may be over-estimated by the effort redistribution model 
because the model estimated bycatch rates by assuming random or 
constant catch-per-unit-effort in all remaining open areas. This 
estimation procedure could skew results for certain species if those 
species are concentrated in certain areas, instead of being randomly 
distributed over the entire open area (see section 7 and appendix C of 
the FSEIS for full description of analytical procedures). Pelagic 
longline effort in the Caribbean (fishing areas below 22 deg. N. 
latitude) represents approximately 14 percent of the total U.S. 
Atlantic-wide fishing effort, but accounts for over half of the total 
blue marlin discards by U.S. pelagic longline vessels. These areas were 
not considered for closure since they are generally located outside 
U.S. EEZ waters. Therefore, it is likely that the no-effort 
redistribution model would be more applicable for blue marlin (12 
percent reduction in discards). White marlin discards were less 
concentrated in the Caribbean (32 percent of total Atlantic-wide 
levels) and did not show any identifiable patterns, particularly after 
the live bait effects were removed from the catch patterns. Therefore, 
the effort redistribution model (11 percent increase in white marlin 
discards) is probably more applicable in this case, indicating that 
white marlin discards are problematic and will need to be closely 
monitored. The prohibition of live bait in the Gulf will potentially 
further reduce Atlantic-wide discard levels of blue marlin and white 
marlin by approximately 3 percent and sailfish by 15 percent. Because 
large coastal sharks are overfished, management efforts that reduce 
discards (33.3 percent under the effort redistribution model) are 
likely to be beneficial to stock recovery and, in that regard, meet the 
objectives of the final rule.
    Comment 13: The closures included in the proposed rule will not be 
effective in rebuilding overfished HMS stocks unless huge areas of the 
Atlantic Ocean outside the U.S. EEZ are also closed.
    Response: National standard 9 requires FMPs to take actions to 
minimize bycatch to the extent practicable. The management actions 
included in the final rule have been formulated to meet the bycatch 
reduction directive of national standard 9, consistent with the 
requirements of other national standards for FMPs. To the extent that 
reducing bycatch and bycatch mortality impacts juvenile and 
reproductive HMS populations, the final actions may augment rebuilding 
programs for the overfished HMS stocks. While NMFS agrees that 
unilateral management action by the United States cannot rebuild 
overfished HMS stocks, the United States has been a leader in 
conservation of HMS resources and has taken many management actions 
(e.g., the time/area closures) to show the international forum our 
willingness to take the critical steps necessary to conserve these 
stocks. U.S. leadership has been used as a primary negotiation tool at 
ICCAT. The swordfish rebuilding program adopted by ICCAT in 1999 was 
based in large part on the rebuilding plan outlined in the HMS FMP. To 
the extent that the United States can use time/area closures and other 
bycatch reduction management strategies to convince other ICCAT member 
entities that bycatch can be minimized, the actions contained in the 
final rule may have a significant impact on Atlantic-wide rebuilding of 
overfished HMS stocks.
    Comment 14: The entire Gulf of Mexico should be closed to pelagic 
longline fishing.
    Response: NMFS disagrees that closure of the entire Gulf of Mexico 
to pelagic longline fishing is warranted. The proposed closure of the 
western Gulf of Mexico was predicated on the relatively higher billfish 
discards associated with the pelagic longline fishery operating in that 
area. Additional information and analyses obtained by NMFS subsequent 
to the publication of the DSEIS and proposed rule on December 15, 1999, 
indicate that prohibition of live bait could reduce blue and white 
marlin discards in the Gulf of Mexico by approximately 10 to 20 
percent, and sailfish discards by 45 percent, depending upon the 
analytical procedure used. Closure of the DeSoto Canyon area in the 
northeastern Gulf of Mexico, although only a third the size of the 
western Gulf of Mexico closure (32,800 square miles versus 96,500 
square miles), will provide a greater benefit in the reduction of 
swordfish discards (4 percent reduction Atlantic-wide versus a 3.1-
percent increase under the effort redistribution model) and will 
prevent vessels displaced from the southeastern U.S. Atlantic coastal 
closures from fishing in an area with an historically high rate of 
swordfish discards. The cumulative benefits of the northeastern Gulf 
closure and live bait prohibition meet the objectives of the final rule 
by providing a reasonable alternative to reduce bycatch rates, while 
minimizing economic and social impacts throughout the Gulf of Mexico.
    Comment 15: NMFS has already closed too many areas to commercial 
fishing. The proposed closures will eventually lead to total closure of 
the

[[Page 47222]]

entire Atlantic region to commercial fishing.
    Response: NMFS disagrees that the final rule closures will lead to 
elimination of the commercial pelagic longline fishery. However, NMFS 
agrees that use of time/area closures as a fishery management tool must 
involve careful consideration of the impact of Agency action on all 
components of both the commercial and recreational fisheries. 
Implementation of practicable conservation measures that meet Magnuson-
Stevens Act directives is the overarching objective of the Agency. To 
that end, NMFS has reduced the spatial and temporal constraints of the 
proposed closures and included a gear modification (prohibition of live 
bait) to help mitigate the economic and social concerns expected to 
result from the actions originally proposed.
    Comment 16: Closure of the DeSoto Canyon area, in addition to the 
western Gulf closure, will displace vessels into the Atlantic and/or 
Caribbean, which will negate the conservation measures associated with 
the closures.
    Response: NMFS disagrees because the effort redistribution model 
assumes that effort is displaced randomly throughout the remaining open 
areas. Therefore, the conservation benefits associated with the final 
action closures account for movement of effort into the Caribbean, Mid-
Atlantic Bight, or any other open area. Further, since the final rule 
does not close the western Gulf of Mexico, it is likely that the 
limited fishing effort currently expended within the DeSoto Canyon 
closure area (approximately one-third the size of the proposed Gulf 
closure) will be dispersed largely within the Gulf of Mexico.
    Comment 17: The proposed time/area closures are unjust, 
unnecessary, and inequitable and, as such, will result in further 
lawsuits against NMFS.
    Response: National standard 9 of the Magnuson-Stevens Act requires 
that NMFS take action to reduce bycatch to the extent practicable. The 
use of time/area closures is a practicable means of reducing bycatch of 
HMS resources while considering the economic concerns of participants 
in the pelagic longline fishery who target these overfished, 
international fishery resources. The IRFA, RIR, and other components of 
the DSEIS clearly identified the significant economic, social, and 
community impacts associated with the proposed time/area closures. NMFS 
selected conservation measures in the final rule that meet the 
directives of the Magnuson-Stevens Act, while being mindful of the 
requirements of national standard 8 to minimize negative economic, 
social, and community impacts, to the extent practicable.
    Comment 18: The DeSoto Canyon closure is needed to protect a 
swordfish nursery area, but it needs to be larger to be more effective.
    Response: NMFS agrees that the DeSoto Canyon area is an area with 
an historically high ratio of swordfish discarded to swordfish kept. 
NMFS does not agree that additional closed areas are warranted at this 
time. The analysis undertaken for the FSEIS included catch history from 
the entire northeastern Gulf of Mexico, east of the Mississippi River, 
and north of 26 deg. N. latitude (general location of the U.S. EEZ). 
Although effort has been declining around DeSoto Canyon in recent 
years, NMFS has selected this area for a closure to prevent further 
effort from being expended in this area, either by displaced effort 
from the Atlantic or by vessels shifting operations from other areas of 
the Gulf of Mexico.
    Comment 19: NMFS should have considered closures in the Caribbean, 
including the EEZ around Puerto Rico and the U.S. Virgin Islands, to 
protect spawning populations of swordfish and billfish.
    Response: Closed areas in the Caribbean were considered. However, 
as discussed in the DSEIS and FSEIS, closures were generally limited to 
U.S. EEZ waters where they would have maximum impact on all pelagic 
longline fishing effort. NMFS agrees that the Caribbean waters support 
important HMS spawning and nursery areas as identified in the essential 
fish habitat components of the HMS FMP and the Billfish FMP Amendment. 
Pelagic longline effort in the Caribbean (fishing areas below 22 deg. 
N. latitude) by U.S. flagged vessels is very effective in targeting 
swordfish with relatively low discard rates (approximately 6.7 fish 
kept to 1 discarded, as compared to an average 0.9 swordfish kept to 1 
discarded in the DeSoto Canyon area). Conversely, the U.S. pelagic 
longline effort in the Caribbean represents approximately 14 percent of 
the total U.S. Atlantic-wide fishing effort, but accounts for over half 
of the total blue marlin discards by U.S. pelagic longline vessels. 
NMFS did not select a closure in the Caribbean area because of the 
extensive range of the fishing effort in the Caribbean, which occurs 
mainly in international waters. In addition, the configuration of the 
EEZ around both Puerto Rico and the U.S. Virgin Islands would make 
closures relatively ineffective.
    Comment 20: NMFS should close the DeSoto Canyon area in addition 
to, not in place of, the proposed western Gulf of Mexico closure.
    Response: NMFS agrees that the DeSoto Canyon should be closed year-
round to reduce swordfish discards and prevent an increase in fishing 
pressure in this area as a result of displaced effort from the East 
Florida Coast closure. However, NMFS does not agree that the proposed 
western Gulf of Mexico closure (March to September) is also warranted 
at this time. The final rule includes a prohibition on the use of live 
bait on pelagic longline gear in the Gulf of Mexico. Analysis of this 
alternative indicates that prohibiting the use of live bait is likely 
to be as effective in reducing sailfish discards as the western Gulf 
closure, and about half as effective in reducing marlin discards. 
However, in consideration of the magnitude of U.S. billfish discards 
relative to Atlantic-wide levels and the extent of the economic, 
social, and community impacts associated with the proposed western Gulf 
closure, modifying fishing practices is a reasonable alternative that 
effectively accomplishes the objective of reducing billfish bycatch, to 
the extent practicable, while allowing fishing to continue in the 
western Gulf of Mexico.
    Comment 21: There is no reason for NMFS to close the DeSoto Canyon 
area to pelagic longline gear.
    Response: NMFS disagrees. The rationale for closing the DeSoto 
Canyon area year-round to pelagic longline fishing is twofold. The 
first is to prohibit fishing in an area with an historically low ratio 
of swordfish kept to number of undersized swordfish discarded, which 
over the period of 1993 to 1998 has averaged less than one swordfish 
kept to one swordfish discarded. The second is to prevent further 
increases in swordfish discards as a result of effort displacement into 
this area from the Florida East Coast year-round closure.
    Comment 22: The closures included in the proposed rule are more 
effective than the measures contained in various bills being considered 
in Congress.
    Response: There are several bills currently before Congress. It is 
difficult at this time to predict whether any of the bills will be 
enacted and, if a bill is enacted, what measures it will contain. The 
objectives of the legislative proposals are also different in some 
respects from those of NMFS' final action.
    Comment 23: Although the original proposed rule and the additional 
DeSoto Canyon closed area may not be contrary to ICCAT recommendations, 
they violate sections of the Magnuson-Stevens and Atlantic Tunas 
Convention

[[Page 47223]]

Acts. The action is not being taken to comply with ICCAT 
recommendations.
    Response: NMFS disagrees that the proposed and final rules violate 
the Magnuson-Stevens Act and ATCA. In fact, if NMFS failed to address 
the issues developed in the final action, the Agency would be in 
violation of Magnuson-Stevens Act directives related to national 
standard 9. Further, the 1999 ICCAT recommendation established a dead 
discard allowance that will require the United States to reduce 
swordfish discards by 25 percent from 1998 levels (i.e., 443 mt to 320 
mt) during the 2000 fishing year; any discards in excess of the dead 
discard allowance will be taken off the following year's quota. The 
dead discard allowance is subsequently reduced to 240 mt in 2001, 160 
mt in 2002, and 0 mt by 2004. Thus, consistent with the ICCAT 
recommendation, NMFS must take action to reduce swordfish dead 
discards.

Gear Modifications

    Comment 1: NMFS needs to do gear research specifically for the 
Atlantic pelagic longline HMS fishery. Results from gear modification 
research on other fisheries may not have the same effectiveness when 
applied to the Atlantic pelagic longline fishery.
    Response: NMFS agrees that research on gear modifications would be 
most helpful if conducted in the Atlantic pelagic longline fishery. In 
fact, several gear-based data collection and research programs have 
been specifically directed on the Atlantic HMS pelagic longline 
fisheries. One study is looking at whether gear modifications, such as 
circle hooks, can reduce bycatch mortality and whether they are cost-
effective. Results are either inconclusive or too preliminary for 
application in this final rule. Funding is very limited at this time, 
so research results from other study areas are often applied to similar 
fisheries (e.g., western Pacific tuna longline and Gulf of Mexico tuna 
longline fishery).
    Comment 2: NMFS should provide exempted fishing permits (EFPs) to 
research vessels in closed areas to investigate the effectiveness of 
gear modifications and fishing practices to reduce bycatch and 
incidental catch interaction with pelagic longline gear.
    Response: NMFS agrees. Researchers must obtain a Scientific 
Research Permit (SRP) or EFP from NMFS to conduct research in a closed 
area with pelagic longline gear. A mechanism exists whereby NMFS can 
grant an SRP/EFP in order to obtain data (50 CFR 600.745). If a 
research team submits the required information, including a research 
plan, NMFS would consider granting an SRP/EFP subject to the terms and 
requirements of the existing regulations.
    Comment 3: NMFS received comments both supporting and opposing a 
regulation requiring the use of circle hooks in HMS fisheries. Comments 
include the following: Require them on commercial and/or recreational 
HMS vessels; do not require them; they are safer than regular hooks, 
and better, cheaper, and more effective than the DSEIS indicated.
    Response: NMFS agrees that circle hooks are a promising tool that 
can be used in many hook and line fisheries to improve survival of 
hooked fish and turtles that must be released. NMFS has funded a study, 
now underway in the Azores, to evaluate the effectiveness of circle 
hooks on sea turtle interactions and survival. If analyses indicate 
that circle hooks are a cost-effective way to increase turtle survival, 
NMFS may issue regulations requiring the use of such gear. NMFS seeks 
the cooperation of all fishermen to explore the use of circle hooks as 
a means to reduce bycatch mortality, which is less expensive and may 
have less economic impact than other measures (e.g., more extensive 
time/area closures). Many recreational anglers have already switched to 
circle hooks, particularly when fishing with dead bait, with several 
recent articles in sportfishing magazines reporting on the value of 
using circle hooks to reduce hooking-related mortality levels. In 
certain fisheries, commercial fishermen have already adopted circle 
hooks as well, as there is evidence of increased catch rates for some 
target species (e.g., yellowfin tuna).
    Comment 4: Some commenters noted that NMFS should prohibit the use 
of live bait in the pelagic longline fishery. Conversely, other 
commenters noted that, if NMFS prohibits live bait, fishermen will 
switch from targeting tuna to targeting swordfish. Since many pelagic 
longline fishermen operating in the Gulf of Mexico have incidental 
swordfish permits, this might result in increased discards of 
swordfish.
    Response: NMFS agrees that live bait should be prohibited. Live 
bait is used for 13 percent (logbook data) to 21 percent (observer 
data) of all pelagic longline sets in the Gulf of Mexico. Logbook and 
observer data indicate that blue and white marlin discards occur 
approximately twice as frequently on hooks with live bait; sailfish are 
discarded four to five times more frequently when live bait is used. 
Live bait is generally used to target yellowfin tuna, although dead 
bait is used on the majority of pelagic longline sets. Prohibiting live 
bait may lead to additional use of squid or other dead bait, which may 
be less effective than live bait in catching yellowfin tuna, but is a 
reasonable alternative to a closure of the western Gulf of Mexico as a 
means of reducing billfish bycatch. Some fishermen may switch from 
targeting tuna (daytime fishery) to targeting swordfish with dead bait, 
thereby increasing swordfish discards. However, fishing for swordfish 
with pelagic longline gear generally takes place during night-time 
hours and has an added expense and complexity with the use of light 
sticks. In anticipation of fishermen targeting swordfish in the Gulf of 
Mexico in reaction to this prohibition, NMFS has implemented a time/
area closure in a known swordfish nursery area in the eastern Gulf of 
Mexico (DeSoto Canyon) in an attempt to avoid the increased catch rates 
of small swordfish there. Further, if longline fishermen holding an 
Incidental category swordfish permit experience increased swordfish 
catch rates, NMFS may need to reconsider the incidental catch limit and 
the allocation of swordfish quota to the directed fishery. Prohibiting 
the use of live bait could be just as effective in reducing sailfish 
discards (approximately 15 percent reduction from the Atlantic-wide 
U.S. totals during 1995 through 1998) as the western Gulf closure. 
Although the live bait prohibition would be somewhat less effective in 
reducing marlin bycatch discards than the March to September area 
closure (e.g., blue marlin: 3.3 percent vs. a 7.2-percent reduction 
under the displaced effort model), it is less costly and is a practical 
alternative to the western Gulf closure.
    Comment 5: NMFS should implement other gear modifications (e.g., 
decreasing length of longline, decreasing soak time, and timing of 
sets).
    Response: NMFS agrees that gear modifications could be effective at 
reducing bycatch. However, many of these measures are difficult to 
enforce or could be circumvented by altering fishing patterns (e.g., 
additional sets made or increased soak time to offset a shorter 
mainline), resulting in no bycatch reduction. NMFS continues to support 
research projects regarding effectiveness of gear modifications.
    Comment 6: NMFS should allow the U.S. Atlantic pelagic longline 
fishery 1 year to voluntarily reduce bycatch with the use of self-
imposed gear modifications.
    Response: As a result of a 1999 ICCAT recommendation setting 
Atlantic-wide discard quotas, the United States must

[[Page 47224]]

immediately reduce swordfish discards during the 2000 fishing year to 
320 mt. This will have to be a significant reduction from 1998, when a 
total of 443 mt of swordfish discards from the North Atlantic were 
reported by the United States. The ICCAT recommendation also 
incrementally reduces the dead discard allowance to zero by the 2004 
fishing year. Any dead discards over the annual allowance will be taken 
off the following year's quota. Therefore, NMFS has determined that it 
is necessary to initiate mandatory bycatch reduction measures at this 
time.
    Comment 7: NMFS should limit the soak times of pelagic longline 
gear to reduce the number of dead discards.
    Response: NMFS evaluated an alternative in the FSEIS that would 
reduce pelagic longline soak time to 6 hours. The strategy would reduce 
the amount of time that pelagic longline gear could be deployed and 
thus reduce fishing effort (hours/hook) for each longline set. The 
current range of soak time for pelagic longline gear is 5 to 13 hours. 
This alternative was rejected based on the practicality of enforcement 
and the likelihood that fishermen would make two sets during a day, or 
otherwise extend a fishing trip to execute a similar level of effort/
trip. Since most billfish hit a longline hook during setting or 
retrieving, requiring a measure that forced a greater frequency of 
hooks moving through the water column could increase billfish discards. 
However, limiting soak to reduce sea turtle takes will likely be 
considered in developing alternatives to address concerns raised in the 
BO.

Environmental Justice

    Comment 1: The proposed closed areas would disproportionately 
affect African-Americans in South Carolina, Vietnamese-Americans in the 
states bordering the Gulf of Mexico, and low-income crew members.
    Response: NMFS considered environmental justice concerns as 
required by E.O. 12898 in selecting the preferred actions of the final 
rule. By minimizing the size of the closure in the Gulf of Mexico 
through prohibiting the use of live bait and by shortening the closed 
season for the Charleston Bump area, NMFS expects that the economic and 
social effects of the closures on minority groups and all other 
components of the pelagic longline fishing community will be minimized 
to the extent practicable.

Protected Species

    Comment 1: NMFS should re-designate the longline fishery from a 
Category I to a Category II fishery under the MMPA because the fishery 
bycatch meets the criteria for a Category II designation.
    Response: NMFS classifies fisheries on an annual basis. 
Classification criteria consist of a two-tiered, stock-specific 
approach that first addresses the total impact of all fisheries on each 
marine mammal stock, and then addresses the impact of individual 
fisheries on each stock. NMFS bases its classification of commercial 
fisheries on a variety of different types of information. The best 
source of information concerning the level of fishery-specific marine 
mammal incidental serious injury and mortality is the fishery observer 
program. If observer data are not available, NMFS may use fishermen's 
reports submitted per the requirements of the Marine Mammal 
Authorization Program since 1996 (or the Marine Mammal Exemption 
Program from 1989 to 1995), stranding data, data from other monitoring 
programs, and other sources of information. The Atlantic pelagic 
longline fishery has been monitored with about 2 to 5 percent observer 
coverage, in terms of sets observed, since 1992. The 1992-1997 
estimated take was based on an analysis of the observed incidental take 
and self-reported incidental take and effort data. The 1998 stock 
assessment reports, which were used for the 1999 List of Fisheries, 
included data which placed the pelagic longline fishery into Category 
I. NMFS will reevaluate categories in developing the 2001 List of 
Fisheries. However, NMFS anticipates using serious injury data, which 
would likely cause the pelagic longline fishery to remain in Category 
I.
    Comment 2: NMFS should be more concerned about fishermen than about 
sea turtles.
    Response: NMFS is concerned about achieving conservation benefits 
of the final rule while at the same time minimizing expected economic 
impacts on fishermen and related businesses, to the extent practicable. 
However, NMFS also must be in compliance with the Endangered Species 
Act, which requires NMFS to take appropriate actions to protect 
endangered or threatened species (e.g., sea turtles). The final rule 
includes reasonable actions that meet requirements of the Magnuson-
Stevens Act and ATCA (as it applies to swordfish discards) to reduce 
bycatch and seek long-term rebuilding of overfished HMS stocks, while 
balancing economic and social impacts. Even so, it is clear that the 
final actions will have significant social and economic impacts on 
various components of the pelagic longline communities. NMFS recognizes 
those impacts and has noted possible sources of economic relief (see 
section 8.0 of FSEIS).
    Comment 3: The projected increase in turtle takes as a result of 
the proposed closures (under the redistribution of effort model) is not 
likely because many boats are not capable of redistributing their 
longline effort to the Grand Banks.
    Response: NMFS agrees that turtle bycatch rates may be over-
estimated by the effort redistribution model because estimation of 
catch-per-unit-effort in the remaining open areas could be skewed if 
species are concentrated in one area (such as sea turtles in the Grand 
Banks or blue marlin in the Caribbean; see FSEIS for further 
information), rather than randomly distributed over the entire open 
area. Although fishing in the Grand Banks area requires a relatively 
larger vessel than currently utilized in some of the closed areas 
(e.g., east Florida coast) for practical and safety reasons, it is 
possible that some boats could commence fishing on the Grand Banks or 
increase current effort in this area due to the closures in other 
areas, resulting in potential increases in turtle interactions. It is 
not known at this time how many vessels are expected to redistribute 
their effort to areas and times where turtle interactions are highest, 
but fishing activities will be continually monitored through the VMS 
program, as well as through logbooks and on-board observers. The 
anticipated takes for loggerheads and leatherback sea turtles for 
pelagic longline gear established by the incidental take statement were 
exceeded during 1999, as discussed in section 5.8 of the FSEIS. The 
June 30, 2000 BO contained jeopardy findings for both loggerhead and 
leatherback sea turtles. NMFS is initiating efforts to address this 
issue, including possible regulatory and non-regulatory actions.

Dolphin/Wahoo Issue

    Comment 1: Comments were received that the mahi ``loophole'' 
undermines the effectiveness of the HMS time/area rule; Vessels using 
longline gear to target dolphin (mahi) should be prohibited from the 
HMS pelagic longline closed areas; NMFS should continue to work with 
the Councils to coordinate closed areas to reduce bycatch; If an 
exception is made for the closed area, HMS longline fishermen may move 
into the dolphin fishery.
    Response: NMFS has notified the respective fishery management 
councils of the jurisdictional issues presented by vessels fishing with 
pelagic longline gear for species that are not directly managed by the 
Secretary of Commerce (e.g., dolphin). The South Atlantic

[[Page 47225]]

Fishery Management Council has prepared a Draft Dolphin and Wahoo 
Fishery Management Plan with a preferred alternative that would 
prohibit the use of pelagic longline gear for dolphin and wahoo in 
areas closed to such gear under HMS regulations. NMFS cannot predict 
whether HMS longline fishermen will move into the dolphin fishery, but 
it is unlikely that there would be a major shift in effort. Vessel 
operators may not fish with pelagic longline gear in closed areas if 
they hold an HMS permit; therefore, they would have to relinquish all 
HMS permits in order to do so. NMFS does not expect that longline 
fishermen would sell their swordfish and tuna permits in order to 
target dolphin for a seasonal fishery of limited size and duration.
    Comment 2: NMFS should implement emergency regulations until the 
respective Councils can close the potential loophole posed by the 
longline fishery for dolphin.
    Response: If the level of fishing effort targeting dolphin 
increases, it will most likely be due to factors other than the time/
area closures implemented for bycatch reduction in the tuna/swordfish 
longline fisheries. It is unlikely that vessels affected by the HMS 
closures would give up HMS permits specifically to conduct a dolphin 
fishery. NMFS and the respective Councils can monitor effort, catch, 
and bycatch of non-HMS permitted longline fishermen targeting dolphin 
in the HMS closed areas and determine whether further action is 
required. The South Atlantic Fishery Management Council has already 
undertaken preliminary steps in preparing a proposed Dolphin and Wahoo 
FMP that includes parallel closures.
    Comment 3: No billfish or swordfish are caught in the mahi fishery; 
NMFS should not shut down the mahi longline fishery; it has virtually 
no discards and the stock is healthy; NMFS needs to analyze the dolphin 
fishery more closely in evaluating the impacts of the pelagic longline 
time/area closure.
    Response: Recognizing the jurisdictional issues, NMFS has asked the 
appropriate fishery management councils to examine management options 
guiding the use of pelagic longline gear to target dolphin. In the 
FSEIS, NMFS has included a more detailed discussion of the potential 
bycatch issues in the pelagic longline fishery for dolphin. Logbook 
reports from 1998 were examined for all sets made in the area from Key 
West, FL, to Wilmington Beach, NC. It was not possible to identify 
effort in the dolphin fishery with certainty, but sets were separated 
into those targeting swordfish/tunas/sharks and those listing a target 
as ``other.'' It was presumed that sets listing a target as ``other'' 
are predominantly targeting dolphin, and this was reflected in the 
nearly tenfold higher catch per set of dolphin. While swordfish and 
bluefin tuna discards were generally lower for the presumed dolphin 
sets, bycatch of billfish, sharks and bigeye, albacore, yellowfin, and 
skipjack (BAYS) tunas seems to be a concern. More specific information 
on catch occurring when pelagic longlines are set to target dolphin 
would be needed to confirm or refute the bycatch concerns. In the 
interim, to facilitate enforcement and to take a precautionary 
approach, NMFS has decided that HMS-permitted vessels should be 
prohibited from setting all pelagic longline gear in the closed areas, 
regardless of target species. It is possible that an operator of an 
HMS-permitted vessel who wishes to target dolphin could apply for an 
exempted fishing permit (EFP). If EFPs are issued, the data collected 
(e.g., logbook or observer reports) can be used to determine whether a 
dolphin fishery could be undertaken that would be consistent with the 
bycatch reduction objectives of the HMS FMP. However, such 
authorization for EFPs would have to be considered in consultation with 
the councils having management authority for dolphin.

Redistribution of Effort

    Comment 1: More pelagic longline fishermen will relocate to open 
fishing areas than exit the fishery as a result of the time/area 
closures.
    Response: To estimate the range of potential ecological impacts of 
the time/area closures, NMFS examined two scenarios for effort 
reallocation: (1) all effort in the closed area is removed from the 
system (worst-case alternative from the economic, social and community 
standpoint) and (2) all effort is randomly moved to available open 
areas (which may overestimate impact of effort if a species is not 
relatively uniformly distributed throughout the area--see discussion of 
sea turtle and blue marlin distribution in the FSEIS). Available 
information is insufficient for NMFS to estimate the number of vessels 
that may decide to discontinue fishing or to determine where the 
remaining vessels will relocate. However, if total U.S. pelagic 
longline effort is reduced by vessels leaving this fishery, the 
estimates of the effectiveness of the time/area closures will be 
underestimated.
    Comment 2: The NMFS western Gulf of Mexico proposed closure would 
force displacement of pelagic longline effort into known bycatch areas, 
particularly the DeSoto Canyon area in the eastern Gulf of Mexico, 
resulting in net losses in conservation effectiveness of the time/area 
closures.
    Response: NMFS agrees that this is a possibility. The areas 
selected in the proposed rule were based on areas and times when 
discard rates were relatively higher than those in other temporal/
spatial alternatives (``hot spots''). The overriding objective for the 
proposed closure in the Gulf of Mexico was to reduce billfish discards. 
A relatively higher discard-per-unit-effort was noted for marlin and 
sailfish in the western Gulf of Mexico. In conducting the analyses for 
the proposed rule, NMFS also recognized that there were discards of 
swordfish in the eastern Gulf; however, there was a relatively lower 
occurrence of billfish discards, particularly blue and white marlin, in 
this eastern area. Therefore, in consideration of the fact that the 
western Gulf area also had discards of undersized swordfish, NMFS 
selected this area for closure in the proposed rule. Information that 
became available subsequent to the preparation of the proposed rule and 
consistent with public comments received has provided additional 
insight into the differential bycatch of billfish from pelagic longline 
sets using live bait, a fishing practice which has occurred mainly in 
the western Gulf of Mexico. NMFS anticipated that this fishing 
technique would be moved to the eastern Gulf of Mexico if the proposed 
closure were implemented, resulting in an increase in billfish bycatch 
in this area. The final rule incorporates a prohibition on the use of 
live bait on pelagic longline gear which will reduce billfish bycatch 
without the need for a closure in the western Gulf of Mexico. As a 
result, NMFS re-examined other areas in the Gulf of Mexico and is 
closing the DeSoto Canyon and a portion of the west Florida shelf based 
on the historically high ratio of swordfish discards to swordfish kept 
in these areas. Further, this action will prevent an expansion of 
displaced fishing effort into this area following closures along the 
southeastern U.S. Atlantic coast.
    Comment 3: Displaced boats will re-flag to another country or sell 
their vessel and gear to ICCAT non-member countries in the Caribbean, 
or other areas, which will negate any gain in the reduction of billfish 
and undersized swordfish discards by U.S. commercial pelagic longline 
effort.
    Response: It is possible that U.S. owners will decide to sell their 
vessel(s) to citizens of one of the Caribbean countries. NMFS has 
information that

[[Page 47226]]

indicates that many Caribbean nations (some which may not be members of 
ICCAT) are interested in expanding their fishing fleets for HMS. NMFS 
is involved with many United States initiatives regarding issues of 
illegal, unregulated and unreported (IUU) fishing, including those 
developed through ICCAT and FAO. The recent ICCAT restrictions on 
swordfish imports from Honduras and Belize are evidence of this 
international effort. ICCAT also continues to work with Caribbean 
nations to discuss allocation criteria for these nations, as well as 
adherence to ICCAT recommendations, which has been a source of concern.
    Comment 4: The time/area closures will increase competition in the 
shark fishery because pelagic longline vessels will re-rig to undertake 
bottom longline fishing.
    Response: NMFS disagrees. The shark fishery operates under a 
limited access permit system. Most pelagic longline vessels have 
qualified for limited access shark permits. The level of retention 
allowable under an incidental permit is not sufficient to support 
profitable operations focusing on shark resources. While some pelagic 
longliners have directed permits and it is possible that some fishermen 
could purchase a directed shark permit, the total number of directed 
permits is capped, and the shark fishery operates under a quota system; 
therefore total effort and relative competition between vessels should 
remain unchanged.
    Comment 5: NMFS will force pelagic longline fishermen with small 
vessels to fish farther from shore, which could be unsafe during 
inclement weather. NMFS should consider safety-at-sea implications of 
the proposed closed areas.
    Response: NMFS agrees that vessel safety is an important component 
to be considered in developing reasonable management measures, as 
required by national standard 10 of the Magnuson-Stevens Act. Some 
pelagic longline vessels historically operating in the areas being 
closed are not capable of safely fishing farther out to sea in the open 
areas due to their size. However, the vast majority of pelagic longline 
effort targeting swordfish and tuna occurs in deep waters, generally in 
waters with depths in excess of 500 fathoms (3000 feet), requiring a 
vessel of sufficient size to safely handle open ocean conditions. The 
final rule closures should not adversely impact most of these vessels 
in regard to sea-worthiness, particularly with the removal of the 
western Gulf of Mexico closure and reducing the temporal restrictions 
of the Charleston Bump closure. However, there is a fleet of small 
pelagic longline vessels that fish the deep waters found relatively 
close to shore along the east Florida coast. This area will be closed 
year-round because of the magnitude of reported swordfish and billfish 
discards. If these vessels are moved to open areas that require fishing 
at a greater distance from shore, NMFS encourages vessel operators to 
follow U.S. Coast Guard-approved operating procedures and to exercise 
caution in determining the safe operating range for their sizes and 
types of vessels.
    Comment 6: Directed shark fishermen should be allowed to catch more 
sharks since bycatch of large coastal sharks in the pelagic longline 
fishery would be reduced with the time/area closures.
    Response: NMFS disagrees. Shark resources in the United States are 
either overfished (large coastal sharks), fully fished (small coastal) 
or unknown (pelagic sharks). Each shark category has a set harvest 
level that encompasses catch from all fishing sources. Time/area 
closures may result in an increase in pelagic shark discards and 
landings of approximately 8 and 4 percent, respectively, under complete 
effort redistribution. Conversely, the number of large coastal sharks 
discarded and landed from pelagic longline gear will likely decrease by 
33 and 18 percent, respectively, which may increase the duration of the 
large coastal shark fishing season. However, further increases in shark 
quotas are not warranted at this time.
    Comment 7: The effort redistribution model included in the DSEIS 
predicts an increase in BAYS tuna landings, but the United States has 
agreed to limit effort in the yellowfin tuna fishery under an ICCAT 
agreement.
    Response: While NMFS agrees that, under the effort redistribution 
model, BAYS tuna landings may increase (mainly as a result of increased 
yellowfin tuna catches), the ICCAT agreement limits U.S. yellowfin 
effort to 1993 levels. The catch levels predicted by the effort 
redistribution model are based on total effort redistribution and, as 
such, are likely to be an over-estimation of actual effort and catches 
under the final rule time/area closures. As a result of the HMS FMP, a 
limited access system is now in place for the tuna pelagic longline 
fishery, and a recreational limit of three yellowfin tuna per person 
per trip was also implemented. Commercial yellowfin tuna landings in 
1993 were 4,386 mt, while more recently (1996 to 1998), landings have 
averaged approximately 3,525 mt. The nearly 10 percent increase in BAYS 
landings predicted by the displaced effort model would increase average 
annual landings to only 3,700 to 3,800 mt, without an overall increase 
in effort.
    Comment 8: Fishermen can and will fish in closed areas with other 
types of fishing gear.
    Response: In the FSEIS, NMFS analyzed the potential impacts of 
fishermen changing target species through redistributing effort to 
other fisheries in which the vessel already may be active, or pursuing 
new fisheries by purchasing permits, as necessary. The South Atlantic 
Fishery Management Council is currently holding public hearings on a 
proposed dolphin/wahoo FMP that includes a preferred alternative that 
would prohibit pelagic longline fishing for dolphin and wahoo within 
the spatial and temporal constraints of closures for the HMS pelagic 
longline fishery. This could reduce effort redistribution from HMS to 
the dolphin and wahoo fisheries.
    Comment 9: If Agency actions force fishermen to fish in areas with 
high turtle interactions, then the Agency is responsible for any 
increase in take, not fishermen.
    Response: NMFS disagrees. The final time/area closures along the 
southeastern U.S. Atlantic coast were temporally and spatially 
reconfigured to mitigate, to the extent practicable, the impact of 
effort redistribution on sea turtle interactions. Turtle bycatch rates 
may be over-estimated by the effort redistribution model because 
estimation of catch-per-unit-effort in the remaining open areas could 
be skewed if species are concentrated more in one area (like sea 
turtles in the Grand Banks) rather than randomly distributed over the 
entire open area. NMFS will continue to monitor the fishery after 
implementation of the final rule. As a result of the jeopardy findings 
for loggerhead and leatherback sea turtles, NMFS will issue additional 
regulations that may include further modifications to gear and/or 
fishing methods, closed or limited fishing areas, and expanded 
monitoring (see section 5.8 of the FSEIS).
    Comment 10: The majority of directed swordfish and tuna pelagic 
longline fishermen are not active in other commercial fisheries.
    Response: NMFS disagrees. Of the 329 fishermen with swordfish 
limited access permits who held valid permits as of May 9, 2000, 
approximately half held only HMS limited access permits. The other 
fishermen held a range of permits including king mackerel, Spanish 
mackerel, golden crab, reef fish, red snapper (both Class 1 and Class 2 
licences), rock shrimp, snapper-grouper, and spiny lobster. In 
addition, some of

[[Page 47227]]

the vessel permit holders held permits in fisheries that are managed by 
the Northeast Regional Office.
    Comment 11: The closure will have unknown benefits because 
reallocation of effort will change the catch composition.
    Response: NMFS examined a range of impacts of effort reallocation, 
including removal of all effort from closed areas to redistributing all 
effort to available open areas. While the models used by NMFS provide 
estimates of potential increases or decreases in catch and discards, 
NMFS agrees that a full, quantitative assessment of effort reallocation 
cannot be made until the closures are implemented and fishermen develop 
new fishing patterns. However, the closures implemented through the 
final rule will significantly reduce impacts on the level of discards 
from the U.S. pelagic longline fishery in the U.S. EEZ, which was the 
goal of the action. NMFS will monitor vessel activity through the use 
of VMS, observers, logbooks, and dealer reports.
    Comment 12: The time/area closures will force vessels to increase 
effort and/or move into other South Atlantic fisheries for which they 
hold permits. Boats will move into the bottom longline fishery and 
catch grouper, snapper, and tilefish or shift to other pelagic longline 
fisheries, like dolphin and wahoo, in either the impacted closed areas 
or other locations along the Atlantic coast.
    Response: NMFS agrees that some vessels will likely expend effort 
in other fisheries. Although some pelagic longline fishermen who 
homeport their vessels in the closed areas have other permits (e.g., 
coastal migratory pelagics, snapper-grouper, charter vessels), many 
have only directed or incidental swordfish, shark and tuna permits. 
Most of the southeastern fisheries require Federal permits, some of 
which are issued under limited access programs. Limited access permits 
may not be available, which may limit the ability of displaced pelagic 
longline fishermen to target other species. Other vessels may move into 
other activities consistent with their fishing experience (e.g., 
recreational charter fishing). The dolphin and wahoo fishery resources 
are not under the direct management jurisdiction of the Secretary of 
Commerce. However, the Agency agrees that some pelagic longline effort 
may be directed toward dolphin and wahoo. The South Atlantic Fishery 
Management Council has prepared a proposed dolphin/wahoo FMP that 
includes a preferred alternative prohibiting pelagic longline fishing 
for dolphin and wahoo within the spatial and temporal constraints of 
closures for the HMS pelagic longline fishery. The FSEIS provides an 
analysis of potential impacts of alternative fishing activity by 
displaced HMS pelagic longline vessels.

Analysis of Ecological Benefits of Closures

    Comment 1: The DSEIS indicated that the proposed time/area closures 
would have a huge reduction in bluefin tuna discards, but reducing 
bluefin tuna bycatch is not listed as an objective of the Agency 
action.
    Response: NMFS disagrees that reduction of bluefin tuna discards 
was not included as an objective of the proposed Agency action, which 
had four clear objectives: Maximize the reduction of finfish bycatch 
(which includes bluefin tuna); minimize the reduction in the target 
catch of swordfish and other species; ensure the incidental catch of 
other species remains unchanged or is reduced; and optimize the 
survival of released animals. Analysis of time/area closure 
effectiveness used for the proposed rule encompassed all closures for 
HMS, including the annual northeastern U.S. pelagic longline closure 
during June developed specifically to reduce bluefin tuna discards that 
was part of the final rule implementing the HMS FMP. Closures included 
in the final rule are listed by species and area to clarify the 
cumulative impacts for each spatial component. Bluefin tuna discards 
increased by 11 percent when pelagic longline effort was randomly 
redistributed throughout the operational range of the U.S. Atlantic 
pelagic longline fishery as a result of the East Florida Coast and 
Charleston Bump closures; however, when combined with the June closure 
already in place, the net effect on bluefin tuna is a 39-percent 
reduction in discards.
    Comment 2: The Agency should have considered a more expansive 
scientific information baseline for evaluation of potential closures, 
including scientifically peer-reviewed literature prior to the 1995 to 
1997 information included in the DSEIS, as well as more updated and/or 
near real-time data sources (e.g., satellite data).
    Response: In preparing the FSEIS, the Agency expanded the data 
analyses to include logbook information from 1993 to 1998. These data 
provide further support for the temporal and spatial components of the 
time/area closures of the final rule. Historical scientific studies 
describing movement behavior of HMS, as well as oceanographic studies 
of current and water mass patterns were also reviewed in preparing the 
FSEIS. Setting closures or other fishing activities based on near real-
time satellite information on water or current patterns may be 
considered in future management actions, particularly in conjunction 
with the communication capabilities of the VMS systems required for all 
pelagic longline fishing vessels beginning September 1, 2000. Recent 
scientific studies on the relationship between billfish discard rates 
relative to use of live and dead bait on pelagic longline gear were 
also used.
    Comment 3: The evaluation of closed areas should be based on the 
ratio of catch to bycatch instead of absolute numbers of bycatch.
    Response: NMFS agrees that the ratio of catch to bycatch should be 
used in evaluating which areas to close, but disagrees that the 
absolute numbers of bycatch should not be considered. In developing the 
final area closures, NMFS examined, where appropriate, the temporal and 
spatial variations of the ratio of bycatch to target catch, the 
absolute numbers of bycatch and target catch, and relative fishing 
effort. For example, an area that has a high discard to number kept 
ratio may be indicative of a problem area, depending upon the relative 
volume of fishing effort that is currently or historically conducted in 
the area. Conversely, an area that has a relatively high absolute 
number of discards but a low ratio of discards to number of fish kept 
would be evaluated based on the relative fishing effort in the area. 
The analytical methods are fully described in the DSEIS, and clarified, 
where appropriate, in the FSEIS.
    Comment 4: A target bycatch threshold should be developed to allow 
for a tracking of the success of Agency actions.
    Response: NMFS disagrees. The development of the proposed and final 
rules clearly follows a multispecies management approach, and' as such, 
it is inappropriate to set target reductions for specific species 
without considering the impact on the remaining portion of the catch 
composition. For example, if the time/area closures were simply based 
on reducing swordfish discards by a set percentage, this could 
disproportionally increase the level of bycatch, bycatch mortality, 
and/or incidental catch of other species. The four overarching 
objectives discussed in the DSEIS and FSEIS guided the Agency 
throughout the development of the proposed and final actions.
    Comment 5: NMFS should investigate the effectiveness of the pelagic 
longline closure in the Pacific Ocean to evaluate potential impacts of 
closures along the U.S. Atlantic coast.
    Response: NMFS agrees that all similar closures should be evaluated 
to

[[Page 47228]]

determine potential biological, social, and economic impacts of final 
Agency actions. The closure of nearly 1 million square miles of Pacific 
Ocean near Hawaii to pelagic longline fishing vessels has been in 
effect since December 23, 1999; therefore, information on the impacts 
is limited at this time.
    Comment 6: Observer data should be used to evaluate accuracy of the 
logbook reports used in the NMFS time/area analyses.
    Response: NMFS agrees that observer coverage is needed to ground-
truth information provided in the mandatory logbook program. The Draft 
Technical Memorandum, included as part of the DSEIS, provides a 
discussion of the limitations of logbook data and explains the 
rationale for using these data. The Atlantic pelagic longline fishery 
has been monitored with about 2 to 5 percent observer coverage, in 
terms of sets observed since 1992, and is used to ground-truth the 
mandatory logbook data, and to provide specific biological information 
(e.g., tagging, obtaining tissue samples for genetic work). The 
observer information was used in developing the prohibition on the use 
of live bait.
    Comment 7: The analyses of the time/area closures are flawed 
because of the dependence upon mis-reported information in the 
mandatory logbooks.
    Response: NMFS disagrees that the analyses are flawed. While NMFS 
recognizes that there are limitations and constraints in the use of 
logbook information as discussed in the Draft Technical Memorandum and 
HMS FMP, these data undergo thorough review by NMFS scientists and can 
be used to identify catch trends and patterns over time. Also, if 
logbooks under-report bycatch as indicated in public comment, then the 
benefits of the time/area closures are even greater than predicted in 
the FSEIS.
    Comment 8: Use of percentages in the analyses make it difficult to 
assess benefits of the time/area closures.
    Response: To allow for valid analysis of temporal and spatial 
variations in closure effectiveness on a suite of target species and 
bycatch, it was necessary to have a common denominator for all 
comparisons. The total U.S. Atlantic catch, by year and species, was 
used for this purpose, and was provided in tabular form in the DSEIS. 
The percentages provided in the analyses can easily be converted to 
number by multiplying the percentage value by the appropriate annual 
total (landings and discards were considered as separate groups). In 
the FSEIS, NMFS further clarifies the use of percentages, numerical 
values, and ratios of numbers caught to numbers discarded.
    Comment 9: NMFS should not lump all BAYS together in the analysis 
of the time/area closures. Each tuna species should be separately 
analyzed, particularly for yellowfin tuna.
    Response: NMFS agrees that it is important to separate out the 
impact of the time/area closures on the various species of the BAYS 
tuna complex. Atlantic-wide, yellowfin tuna and bigeye tuna represent 
over 91 percent of the U.S. pelagic longline fleet catch of BAYS tunas 
(YFT--70.4 percent and bigeye tuna--20.8 percent). In the Gulf of 
Mexico, the 99.1 percent of the BAYS harvested from the proposed 
western Gulf closed area consisted of yellowfin tuna; in the final rule 
closure of DeSoto Canyon, yellowfin make up 98.4 percent of the BAYS 
complex. The BAYS tunas in the closure of the southeastern U.S. 
Atlantic coast consist of 89.5 percent yellowfin tuna and 7.5 percent 
bigeye tuna. The potential changes in landings of yellowfin tuna, 
bigeye tuna, the aggregate BAYS complex, and bluefin tuna are 
summarized for each final action under the effort redistribution and no 
effort redistribution models described in the FSEIS.
    Comment 10: NMFS should summarize the impacts of the time/area 
closures separately for the Gulf of Mexico and southeastern U.S. 
Atlantic coastal closures.
    Response: NMFS agrees. Ecological and economic impacts may be 
better understood if summarized both separately and in combination, 
and, to that end, this presentation approach is taken in the FSEIS. 
Although the DSEIS combined the ecological impacts for the Gulf of 
Mexico and southeastern U.S. Atlantic coastal closures under the 
discussion of each alternative, the draft Technical Memorandum provided 
results of the no effort redistribution and effort redistribution 
models separately for each closure area.
    Comment 11: NMFS should consider incorporating tagging data into 
the time/area analysis procedures.
    Response: NMFS agrees that information from tagging studies of 
billfish, tunas, sharks, and other species released by recreational and 
commercial fishermen provides valuable data on the range and movement 
patterns of these species and, as such were included in the qualitative 
procedures used to identify general areas for potential closure.
    Comment 12: The proposed Agency action is focused only on reducing 
swordfish discards, and does not consider the impacts on vessels.
    Response: NMFS disagrees. The evaluation of the time/area closure 
fishery management strategy in the DSEIS and FSEIS followed a multi-
species approach. Consistent with the objectives, patterns in the 
discards, bycatch and incidental catches of billfish, sea turtles, 
bluefin tuna, pelagic and large coastal sharks, and other overfished 
HMS were used to define time/area closures. The areas selected for 
closure in the final rule also seek to minimize the target catch of 
swordfish, tuna, dolphin, and other species and, thus, minimize the 
economic impacts on vessel owners. The evaluation of the impacts of the 
closures included all components of the pelagic longline catch, as well 
as those of dealers within the time/area closure locations.

Mitigation of Economic Impacts

    Comment 1: NMFS should provide economic compensation for the 
displaced vessels and dealers who are negatively impacted from the 
closed areas (various vessel buyout schemes were suggested ranging from 
recreational permit fees to having the remaining commercial fishermen 
compensate those who go out of business; other schemes included 
employing all displaced longline fishermen in fish hatcheries). While 
vessel owners can sell their permits and receive some compensation, 
dealers cannot. NMFS should provide resources for retraining or 
education of displaced longline fishermen.
    Response: NMFS recognizes that the time/area closures will 
adversely affect many vessels and dealers, and that the ripple effects 
of the closures will go beyond the immediate community of fishermen, 
and affect fishing families, associated businesses, and the larger 
coastal economy. NMFS also recognizes that the Magnuson-Stevens Act 
requirements to rebuild overfished fisheries and reduce bycatch are 
going to result in economic hardships--even closure of some businesses. 
Once the stocks are rebuilt, it may still not be possible for all the 
affected individuals to make a living because many fisheries are 
currently overcapitalized. NMFS has made a concerted effort to identify 
possible sources of economic relief for individuals and businesses 
affected by the regulatory measures in this rule. Some government 
agencies, such as the Small Business Administration, the Economic 
Development Administration, the Farm Credit System, the U.S. Department 
of Labor's Economic Dislocation and Worker Adjustment Assistance Act, 
may provide fishing industry participants with loans, training for new 
jobs, and/or grants for

[[Page 47229]]

economically stressed communities, and the Fisheries Finance Program 
could support an industry-sponsored vessel buyback. A summary of the 
types of buyback programs, loans, and government agencies that may be 
able to help are listed in section 3 of the FSEIS.
    Comment 2: NMFS needs to consider other alternatives that might 
have fewer and lesser adverse economic impacts.
    Response: In developing this final rule, NMFS considered and 
adopted a variety of options that minimize bycatch and bycatch 
mortality, achieve the same conservation goals, and mitigate the rule's 
economic impact. These option's include smaller closed areas and/or 
shorter closed periods than were proposed. In addition, the final rule 
substitutes a prohibition on the use of live bait in the Gulf of Mexico 
for the proposed closed area in the western Gulf. These alternatives 
are likely to have less of an adverse economic impact on fishermen and 
communities than the alternatives in the proposed rule.
    Comment 3: NMFS received a number of comments regarding permit 
buyouts, including the following: NMFS should buy out displaced 
longline vessels; NMFS should not buy out displaced longline vessels; 
thousands of businesses fail every day and those businesses do not ask 
tax payers to buy them out; NMFS should destroy any longline vessels 
that are bought out; and, without a buyout, many companies will go out 
of business.
    Response: This rule does not include a fishing capacity reduction 
program (buyback program); however, NMFS may implement a buyback 
program for this fishery if circumstances warrant. Any buyback program 
will be implemented in accordance with the Magnuson-Stevens Act, NMFS 
fishing capacity reduction regulations, and other applicable law. Under 
section 312 of the Magnuson-Stevens Act, NMFS may implement buyback 
programs that purchase fishing permits from permit holders or, 
alternatively, it may implement buyback programs that restrict vessels 
from participating in other fisheries by requiring that they be 
scrapped or be subject to title restrictions. The buyback method 
selected will depend on particular circumstances present when such 
buyback program, if any, is implemented. Furthermore, NMFS has 
concluded that it does have the authority to initiate and implement 
buyback programs for fisheries under the direct management authority of 
the Secretary of Commerce. Regulations implementing section 312, 
published May 18, 2000 (65 FR 31444), provide that ``for a fishery 
under the direct management authority of the Secretary, NMFS may 
conduct a program on NMFS' own motion by fulfilling the requirements * 
* * that reasonably apply to a program not initiated by a request.'' 
Because of the significant negative economic impacts expected with this 
final rule, NMFS has made a concerted effort to identify possible 
sources of economic relief for individuals and businesses affected by 
regulatory measures in fishery management. A summary of the types of 
buyback programs, loans, and government agencies that may be able to 
help are listed in Section 3 of the FSEIS.
    Comment 4: This proposed rule may cause Congress to abandon the 
legislative buyout that has been under consideration.
    Response: NMFS announced in the 1999 HMS FMP that the Agency was 
committed to reducing bycatch and bycatch mortality, as required in the 
Magnuson-Stevens Act, and would proceed with rulemaking to address 
bycatch concerns. NMFS cannot predict what this rulemaking may have on 
Congressional action.
    Comment 5: NMFS should recognize that there are economic and 
competitive disadvantages to businesses geographically close to the 
proposed closed areas.
    Response: NMFS agrees and is aware of the potentially significant 
economic impacts to related businesses, not just to fishermen. However, 
these areas were not chosen with respect to the impacts on a specific 
region but rather to target ``hot spots'' for pelagic longline bycatch. 
Because of the anticipated significant economic impacts, NMFS has 
selected alternatives that minimize those impacts while still 
maintaining conservation benefits similar to those in the proposed 
rule. In the Gulf of Mexico, NMFS chose to prohibit live bait in lieu 
of the large Western Gulf closure and has also implemented a smaller 
closed area that focuses on swordfish bycatch reduction. Although this 
area has a year-round closure, it is also located offshore so that 
smaller fishing vessels may still be able to fish. Thus, businesses 
near this closure may not be affected to the same extent as they would 
be if the area extended to the coast. In addition, as discussed 
earlier, NMFS has made a concerted effort to identify possible sources 
of economic relief for individuals and businesses affected by 
regulatory measures in fishery management.
    Comment 6: NMFS should reconsider limiting the capacity of the 
Atlantic pelagic longline fleet. NMFS should not implement further 
regulations and instead should monitor the fishery while giving the 
limited access program a chance to ``settle.'' Limited access was an 
important first step that has not been given a chance to provide 
benefits.
    Response: NMFS agrees that limiting access to the fishery is an 
important step. In July 1999, NMFS implemented limited access in the 
pelagic longline fleet. While it is true that limiting access to this 
fishery could provide an incentive for fishermen to reduce bycatch 
because they have an investment in the future of the fishery, NMFS has 
a mandate under the Magnuson-Stevens Act to minimize bycatch, to the 
extent practicable. In addition, the limited access program in place 
now was designed to reduce latent effort, not to reduce fishing effort. 
As a result, there is still excess capacity in this fishery. For 
example, of the 450 permit holders who qualified for a directed or 
incidental swordfish limited access permit, only 208 reported landings 
in the pelagic logbook in 1998. While other permit holders may be 
reporting landings in other logbooks, NMFS believes that many permit 
holders who do not fish regularly can still be bought out by fishermen 
who may be more active. Therefore, as announced in the HMS FMP and the 
2000 SAFE report and in addition to this rule to reduce bycatch and 
bycatch mortality in the pelagic longline fishery, NMFS continues to 
monitor the status of this fishery and, if necessary, will work with 
the APs to consider additional steps to reduce fishing effort.
    Comment 7: NMFS should make fishermen pay for an observer instead 
of VMS.
    Response: NMFS agrees that a user fee system for funding observer 
coverage could be beneficial. However, a VMS program to track vessels 
in areas where bycatch is a concern has some advantages in that it 
costs less, is less intrusive, and has some vessel safety benefits. 
NMFS will continue to examine means of applying user fees in fisheries 
subject to observer coverage. In the interim, the Atlantic pelagic 
longline fishery VMS requirement is effective beginning September 1, 
2000.
    Comment 8: Minimizing bycatch through large area closures will 
result in greater overall economic benefits for all fishing industry 
sectors.
    Response: NMFS agrees that minimizing bycatch enhances rebuilding 
of overfished stocks and, over the long term, should increase the 
economic benefits for all fishing sectors. However, in the short term, 
large area closures will force many small entities, such as fishermen 
and dealers, out of business. NMFS has chosen to close the areas that 
will provide the greatest

[[Page 47230]]

conservation and economic benefits in both the short and long terms. 
Because of the jeopardy finding for loggerhead and leatherback sea 
turtles, NMFS will propose additional measures to reduce the level of 
turtle takes. This could include a closure of the Grand Banks for the 
months of September through December, modifications in fishing methods, 
gear modifications, and increased monitoring activities.
    Comment 9: Every effort should be made to mitigate the economic 
loss to commercial fishermen; however, given the current strong 
economy, there is ample opportunity for those disadvantaged by the 
closures to make a financial recovery.
    Response: NMFS agrees that the economic loss to the commercial 
fishermen must be minimized as long as the conservation goals can still 
be achieved. Fishermen and others who lose their job or go out of 
business as a result of this rule may be able to relocate to either a 
different job altogether, or to a different job within the fishing 
industry. To aid displaced individuals, NMFS identified possible 
sources of economic relief for individuals and businesses affected by 
regulatory measures in fishery management. A summary of the types of 
loans and government agencies that may be able to help are listed in 3 
of the FSEIS.
    Comment 10: NMFS needs to consider actions to minimize economic 
impacts associated with moving families to areas that remain open to 
pelagic longline fishing.
    Response: NMFS is aware that some families will need to move as a 
result of these regulations and that the cost of moving may be high. To 
examine more fully these impacts, NMFS published a Federal Register 
document (65 FR 24440) on April 26, 2000, asking specifically for 
comments on the impact of delaying the effective date to provide 
sufficient time to relocate. The comments received are discussed here. 
Also, as a result of these concerns, NMFS is delaying implementation of 
some of these regulations for different lengths of time.
    Comment 11: The DeSoto Canyon closure is keyed to reducing 
swordfish discards and the analysis focuses on the social and economic 
impacts on the swordfish longline fishermen and their associated 
fishing communities. Other fisheries and fishing communities are likely 
to be affected by this closures and should be considered in the 
analysis.
    Response: NMFS agrees that a variety of fisheries and fishing 
communities should be considered in undertaking efforts to minimize 
bycatch and bycatch mortality. As this final rule is directed at the 
activities of only pelagic longline fishermen, the analyses focus on 
the impacts to the pelagic longline fishery and communities. As NMFS 
collects additional information on other fisheries (e.g., recreational, 
bottom longline), NMFS may determine that additional rulemakings are 
needed to reduce bycatch and bycatch mortality in those fisheries. If 
NMFS undertakes such rulemakings, it will conduct analyses to determine 
the impact of those rules.
    Comment 12: Many comments were received about the effective date. 
These comments included the following: NMFS should do the right thing 
and insist that the closures not be reduced and that they be 
implemented no later than 30 days after publication of the final rule 
expected on August 1; The closures must be enacted immediately without 
any delay; Fishermen and related businesses would need at least one 
full year prior to implementation to move and resettle into other 
regions; If NMFS is not going to provide compensation, NMFS needs to 
delay implementation by at least 6 months to relocate entire 
businesses, find a new docking facility, relocate staff, find a new 
church, find new schools for children, and find a new house; The 
swordfish rebuilding measures implemented last November at ICCAT are 
risk-prone and have less than a 50-percent chance of rebuilding in 10 
years. Given this, NMFS needs to implement these closures immediately 
to reduce pressure on the stock and increase the chance of sticking to 
the rebuilding schedule.
    Response: NMFS agrees that fishermen and related businesses will 
need time to relocate in response to the closures in this final rule. 
NMFS disagrees that even a short delay of these regulations would 
hinder rebuilding or cause irreparable harm to the resource. Any dead 
swordfish discards that happen between the publication of the final 
rule and implementation will be taken off the U.S. swordfish dead 
discard allowance included in the rebuilding plan. Thus, NMFS has 
decided to delay the implementation of the closures: 90 days for the 
DeSoto Canyon area (November 1, 2000) and 180 days (February 1, 2001) 
for the East Florida Coast closure, which coincides with the annual 
date that the seasonal Charleston Bump closure begins. Thus, the 
closures in the Southeast Atlantic would begin at the same time, making 
the regulations less confusing and allow fishermen and related 
businesses approximately 6 months to relocate if they so decide. The 
implementation of the DeSoto Canyon closure is not delayed for as long, 
because this closure is not as large an area as is the one the Atlantic 
and it is further offshore. Thus, fishermen who have fished pelagic 
longlines in the DeSoto Canyon area may be able to find alternative 
fishing sites within the Gulf of Mexico without having to relocate the 
home port of the vessel, and less time is necessary to prepare.
    Comment 13: Unless NMFS undertook a detailed analysis of the 
behavior of longline fishermen and processing industry to investigate 
the impacts of delaying the effective date (costs, vessel's choice, 
etc.), any decision to delay implementation would be essentially 
arbitrary.
    Response: NMFS disagrees. NMFS believes that commercial fishermen, 
dealers, and processors provided enough information in their comments 
on how long and why delayed implementation is needed for NMFS to make 
an informed decision.
    Comment 14: NMFS asked the wrong question in regard to delayed 
implementation. The correct question is what approach would produce the 
highest net economic benefits, not what are the short-term gains.
    Response: NMFS believes that asking the commercial fishing industry 
why they need delayed implementation and how long a delay it should be 
provides information needed for NMFS to decide the optimal approach. 
NMFS does not believe the highest net economic benefit would be 
achieved if all of the commercial fishermen were asked to move within 
30 days. Instead, NMFS believes it could be more beneficial to the 
fishermen and the consumer if commercial industries were given time to 
relocate while still giving them time to fish during this season.
    Comment 15: NMFS' entire approach on this rulemaking is 
fundamentally flawed because the Agency does not have the ability nor 
the authority to initiate an effort buyout program for Atlantic HMS.
    Response: NMFS disagrees. NMFS announced in the HMS FMP that it was 
committed to reducing bycatch and bycatch mortality and would initiate 
rulemaking for time/area closures based on comments received during 
that rulemaking. NMFS has previously concluded (65 FR 31444, May 18, 
2000) that section 312 of the Magnuson-Stevens Act provides 
authorization for the Atlantic HMS buyout ``on NMFS' own motion by 
fulfilling the requirements * * * that reasonably apply to a program 
not initiated by a request.'' While NMFS recognizes that a buyout 
program may provide some compensation for vessel owners, a

[[Page 47231]]

buyout program would not provide any compensation for other business 
owners. Instead, NMFS has explored other ways of minimizing economic 
impacts including smaller time/area closures, a prohibition on live 
bait, and delayed implementation.
    Comment 16: Closing the DeSoto Canyon in addition to the western 
Gulf of Mexico would only increase any social and economic impacts to 
vessels and their support and supplier community-based infrastructures.
    Response: NMFS agrees that closing both the proposed Gulf B area 
and the DeSoto Canyon would have even greater economic impacts than 
closing either one alone. In addition, preliminary analyses indicate 
that prohibiting live bait may have similar conservation benefits for 
billfish as closing the western Gulf of Mexico. For this reason, NMFS 
decided to close the DeSoto Canyon to minimize bycatch, particularly 
small swordfish, and prohibit live bait to minimize billfish bycatch.
    Comment 17: The Vietnamese Americans who have settled in states 
bordering the Gulf of Mexico are especially vulnerable to social and 
cultural disruption since they are dependent upon commercial fishing as 
a traditional livelihood that provides stability.
    Response: NMFS agrees that the Vietnamese American fishermen may be 
affected by the social and economic impacts of these regulations. 
However, NMFS mitigated impacts to the fishermen in these final 
regulations by deciding against closing the Western Gulf of Mexico and 
choosing to prohibit live bait. Thus, although these fishermen may need 
to alter the current method of fishing, they should not need to 
relocate.
    Comment 18: NMFS failed to factor in the economic benefits from 
decreased swordfish discards which would be added to the United States' 
total allowable landings under the ICCAT swordfish rebuilding program 
if swordfish discards are reduced below ICCAT targets.
    Response: NMFS disagrees that the Agency failed to factor in the 
economic benefits from decreased swordfish discards in relation to the 
1999 ICCAT swordfish rebuilding program. NMFS recognizes that reducing 
dead discards is crucial in order for U.S. fishermen to continue to 
land the full swordfish quota allocated to the United States (see 
section 7 of the FSEIS). For a full analysis of the social, economic, 
and conservation benefits of the 1999 swordfish rebuilding program, see 
the preamble to the proposed rule (64 FR 33519, December 15, 1999).
    Comment 19: Adding the DeSoto Canyon area closure to the Western 
Gulf of Mexico closure still would not save that many blue and white 
marlins. NMFS must weigh that against the economic devastation the 
closures will cause.
    Response: NMFS agrees that economic impacts must be considered. 
However, NMFS does not believe that Agency needs to ``balance'' the 
economic impacts against the conservation benefits. The Magnuson-
Stevens Act mandates NMFS to rebuild overfished stocks, prevent 
overfishing, and minimize bycatch and bycatch mortality for all stocks, 
not just billfish. Recently, the U.S. Court of Appeals for the District 
of Columbia Circuit ruled that the Magnuson-Stevens Act requires NMFS 
to give priority to conservation benefits and to consider adverse 
economic impacts if two alternatives achieve the same conservation 
benefits. NMFS recognizes that some regulations that meet this mandate 
will cause economic harm and has provided a summary of alternatives 
that may help affected fishermen and communities in Section 3 of the 
FSEIS. In addition, NMFS has analyzed many different areas and seasons 
in order to determine whether time/area closures will be effective at 
meeting the goals of this FSEIS, which time/area closures are the most 
effective, and which time/area closures are effective but have the 
least economic impacts. NMFS believes that the management measures 
chosen will meet all of the goals of this action and minimize the 
economic impacts, to the extent practicable.

Social and Economic Analyses

    Comment 1: NMFS received comments on the extent of the impacts of 
the proposed closed areas on the fishing fleet, including: One-third of 
the fleet would go out of business; hundreds of coastal communities 
would be negatively impacted; many fishermen would need to relocate; 
and the closures fall disproportionately on minority and low-income 
communities.
    Response: Comments received on the proposed rule helped NMFS to 
develop final regulations that would minimize the impacts of the 
potential closed areas while yielding similar (or better) conservation 
benefits. For example, many comments suggested that NMFS consider the 
DeSoto Canyon area both instead of and in addition to the proposed 
western Gulf closure (area Gulf B). NMFS found that the proposed Gulf B 
closure could reduce the total gross revenues from the entire pelagic 
longline fleet by 6.4 percent while the DeSoto Canyon closure might 
reduce the total gross revenues from the entire fleet by 2.2 percent. 
In addition, while analyses indicate the Gulf B closure could increase 
swordfish discards by 3.9 percent, the DeSoto Canyon closure could 
decrease swordfish discards by 4.1 percent. In the South Atlantic, the 
proposed closure could reduce swordfish discards by 27.7 percent and 
reduce total gross revenues to the fleet by 19.2 percent while the 
final closure could reduce swordfish discards by 27.3 percent and 
reduce total gross revenues for the fleet by only 9.0 percent.
    Comment 2: The closures will have almost no adverse impact on any 
group including commercial longline fishermen, as shown by NMFS' 
analyses. The economic and biological benefits of these zone closures 
far outstrip any commercial interests.
    Response: NMFS disagrees that this rule will not have any adverse 
impacts. NMFS' analyses, as supported by numerous comments received, 
indicate that many fishermen, dealers, and related industries could go 
out of business as a result of this rule. In addition, this rule will 
have ripple effects throughout the entire fishing community, commercial 
and recreational, and into other jobs and industries such as mechanics, 
engineers, and fishing supply markets. The analyses conducted for this 
rule indicate that the closed areas and times will have positive 
biological impacts and significant negative economic impacts for some 
businesses. NMFS has tried to achieve the conservation goal of 
minimizing bycatch while minimizing the economic impacts.
    Comment 3: Restrictions on commercial fishermen have economic 
impact not just on dealers and wholesalers but also on local grocery 
stores, welders, truckers, electrical technicians, mechanics, food 
banks, and other people in all communities.
    Response: NMFS agrees that this rule will have indirect impacts 
beyond the immediate fishing industry. However, non-fishing industries 
are already dependent on a range of businesses and industries. Although 
some initial adverse impacts may occur, these indirectly affected 
industries should be able to adjust through increased business in other 
non-fishing sectors.
    Comment 4: The economics of the pelagic longline fishery are 
integrated with other fisheries from a dealer's perspective.
    Response: NMFS agrees. In both the initial and final regulatory 
flexibility analyses and the regulatory impact review, NMFS analyzed 
the impact of

[[Page 47232]]

this rule on dealers. NMFS stated that, as a result of this rule, some 
dealers may lose a substantial amount of fish previously supplied from 
fishermen who have been issued a directed or incidental swordfish 
permit. However, the actual amount of gross revenues dealers lose will 
depend on the type of fish and the amount of fish dealers can obtain 
from other fishermen and other fisheries. Although NMFS believes this 
regulation will have a significant economic impact on HMS dealers who 
are located in coastal ports adjacent to the closed areas, most dealers 
are not as specialized as fishermen are, and they may be in a position 
to develop alternative business opportunities (e.g., purchases of other 
domestic fish products, import/export, value-added processing).
    Comment 5: Closing the DeSoto canyon area will force some 
businesses to close.
    Response: NMFS agrees; assuming no effort redistribution, the 
economic analyses for the DeSoto Canyon closure indicate that 
approximately eight vessels (4 percent) would lose half of their gross 
revenues and seven dealers who received fish from limited access permit 
holders (5.6 percent) would lose business volume equal to about half of 
the fish now handled. However, the economic impacts of the DeSoto 
Canyon are smaller than the anticipated economic impacts of the 
proposed Gulf B closure (12 vessels and 3 dealers losing half of their 
business). In addition, the closure of the DeSoto Canyon area has 
greater biological benefits for undersized swordfish than the proposed 
Gulf B closure. Thus, although some vessels may still go out of 
business as a result of this closure, the DeSoto Canyon area closure 
minimizes the economic impacts for most individuals. Also, the DeSoto 
Canyon area is located offshore, so smaller fishing vessels may still 
be able to fish adjacent open areas without relocating. This is not 
true of the Gulf B closure, which would have forced small vessels 
owners who wished to continue to fish to relocate.
    Comment 6: With the closures, pelagic longline fishermen are likely 
to move into other areas. Many existing fishermen and countless others 
working in those areas will be devastated by the concentration of 
boats. NMFS has failed to analyze the impact of displaced fishermen on 
communities in the open areas.
    Response: NMFS agrees that with this rule, many pelagic longline 
fishermen are likely to move into other areas. While this rule may 
increase user conflicts in some areas, NMFS feels that this relocation 
will increase the social and economic benefits in many communities by 
increasing the level of economic activity in the area, including 
employment. It is likely that some dealers and marinas in the open 
areas or along the edges of the closed areas will see an increase in 
business as fishermen move. Other support businesses near the open 
areas will likely be similarly influenced. Also, communities in the 
closed areas may have some economic relief if they transfer effort from 
commercial fishing to recreational fishing. This may have the added 
benefits of lessening user conflicts in other areas and enhancing the 
recreational experience. In addition, due to the shorter Charleston 
Bump closure and the smaller DeSoto Canyon closure further off the 
coast, some fishermen in those areas may decide not to relocate.
    Comment 7: Even though the quantity of swordfish available to 
consumers may not decrease due to imports, the quality of fresh 
swordfish will. Fresh fish should be available to everyone, not just to 
those who have the economic means to get it themselves or live across a 
line on a map. Even with a buyout, the level of economic activity will 
be diminished and consumers will lose access to the freshest product.
    Response: NMFS agrees that it is advantageous when fresh fish is 
available to everyone, and future generations are considered in efforts 
to develop sustainable fisheries. For that reason, NMFS is working to 
rebuild overfished fisheries and to reduce bycatch and bycatch 
mortality while minimizing the economic impacts with methods such as 
time/area closures and gear modifications, without banning pelagic 
longline gear. These methods will allow the fishery to continue to 
provide as much fresh fish as possible.
    Comment 8: This proposed rule should be considered as significant 
under Executive Order (E.O.) 12866.
    Response: Both NMFS and the Office of Management and Budget(OMB) 
concluded that this rule does not meet the criteria for classification 
as ``significant'' for purposes of E.O. 12866 review. However, NMFS has 
prepared initial and final regulatory flexibility analyses as required 
by the Regulatory Flexibility Act (RFA). It should be noted that a rule 
could have a significant economic impact for purposes of the RFA 
without the rule being considered significant under the criteria of 
E.O. 12866.
    Comment 9: The costs of the time/area closures have been 
overestimated while the benefits have been underestimated. NMFS has 
overestimated the man-hour cost of circle hooks. Many economic benefits 
have been underestimated or omitted from the analysis of the economic 
impact of the proposed closures.
    Response: NMFS agrees that some of the costs have been 
overestimated and some of the benefits have been underestimated. In 
both the initial and final regulatory flexibility analyses and the 
regulatory impact review, NMFS estimated the maximum economic impact of 
each alternative and understated many of the benefits. This is 
different than the analyses NMFS conducted to analyze the conservation 
impacts. Those analyses estimated the conservation impacts under no 
effort redistribution and effort redistribution models. The no effort 
redistribution model allowed NMFS to estimate the maximum biological 
benefits. The effort redistribution model allowed NMFS to estimate the 
minimum biological benefits. For the economic analyses, NMFS assumed no 
effort redistribution. This model allowed NMFS to estimate the maximum 
economic impact of the final regulations. If NMFS had assumed effort 
redistribution, the economic analyses would have indicated no change 
from the status quo or, perhaps, an increase in gross revenues (see 
section 7 of the FSEIS). While NMFS believes that the actual costs and 
benefits of the regulations will be somewhere between status quo and 
the costs described in the analyses, NMFS used the estimates from the 
most conservative models to make its decisions. This means that, for 
the biological estimates, NMFS used the effort redistribution model, 
and for the economic estimates, NMFS used the no-effort redistribution 
model. However, NMFS believes that many fishermen and related 
industries will adapt to the regulations and will continue to work in 
either the HMS fisheries or in others. However, because NMFS cannot 
predict the behavior of individuals, NMFS cannot estimate the exact 
cost or benefit any regulation will have. In addition, NMFS recognizes 
that the ripple effect of the closures will impact other business that 
provide goods and services to the pelagic longline fishery (e.g., 
tackle manufactures and suppliers; dock-side services, including ice, 
bait, fuel, dockage, labor; and vessel manufacture and repair). 
Although the final regulatory flexibility analysis and regulatory 
impact review provide a more thorough discussion of economic factors 
associated with the final Agency actions, NMFS does not have the 
necessary detailed economic information to make a quantitative

[[Page 47233]]

assessment of the impacts on fishery support businesses.
    Comment 10: The use of gross revenues to quantify impacts does not 
provide an accurate assessment of the economic impacts of the proposed 
rule; approximating loss changes by using average vessel costs would be 
a more appropriate technique.
    Response: NMFS agrees that using net revenues instead of gross 
revenues would provide a more accurate assessment of the economic 
impacts. However, as described in the HMS FMP, NMFS has only one 
estimate of the average variable costs for vessels in the pelagic 
longline fishery. Removing this estimate from every estimate of gross 
revenues would be the same as removing a constant and would result in 
the same estimates as those from gross revenues in terms of percent 
change in net revenues. Thus, NMFS prefers, at this time, to discuss 
the impact in regard to gross revenues and variable costs separately. 
However, NMFS is working on expanding its collection of social and 
economic data. NMFS is seeking approval to make the economic add-on to 
the pelagic logbook data collection mandatory for selected vessels. 
This information could be used in future rulemakings to estimate the 
net revenues for each vessel.
    Comment 11: The documents do not have enough data on people and the 
lives this rule will affect. Because of this, the rule fails to fully 
assess the social and economic impacts. NMFS needs to expand the social 
impact assessment.
    Response: The data used to examine the alternatives considered in 
the rulemaking constitute the best available data. However, NMFS agrees 
that additional data will be beneficial to future analyses. Therefore, 
NMFS is increasing efforts to collect social and economic data for use 
in future analyses, such as through the cost-earnings add-on to the 
pelagic logbook and charter/headboat logbook, and social and economic 
data surveys to be administered to tournament participants.
    Comment 12: NMFS needs additional information regarding any social 
and economic impacts from the proposed rule on the recreational fishing 
industry.
    Response: The proposed rule and FSEIS included a discussion of the 
value of recreational HMS fisheries and the potential increases in 
fishing success as a result of the closure of commercial pelagic 
longline fishing along the U.S. Atlantic coast. Given the potential 
benefits of the rule on the recreational fishing industry and the 
comments received, NMFS expanded the discussion of the impacts on 
recreational fishermen in the final rule documents.
    Comment 13: If the closures aid in the recovery of billfish, 
sharks, tunas, and swordfish, there will be tremendous economic gain in 
the recreational fishing sector. Healthy fish populations produce more 
economic benefit when they are used for recreational fishing first. The 
economic benefits of recreational angling have been demonstrated many 
times.
    Response: NMFS agrees that the recreational fishing industry 
provides many economic benefits and employment. The 1988 Billfish 
Fishery Management Plan, which prohibited commercial vessels from 
possessing billfish, recognizes the importance of the recreational 
billfish fishery. Although increasing the recreational fishery benefits 
and decreasing user conflicts are not an objective of the rule, NMFS 
realizes that such benefits could occur as a result of the regulations.
    Comment 14: NMFS needs to evaluate the economic impacts on 
recreational fishermen in the mid- Atlantic Bight that may result from 
increased interactions with displaced pelagic longline fishing 
activity.
    Response: NMFS agrees that displacement of pelagic longline effort 
may have an impact on the remaining open areas in the Atlantic. 
Accordingly, NMFS includes a discussion of additional management 
measures specifically for the mid-Atlantic Bight to reduce potential 
interactions with endangered/threatened species and with recreational 
anglers. In addition, the reduced time/area closures will not only 
minimize economic impacts on the commercial fishing industry, but also 
reduce user conflicts that may have occurred under the proposed rule if 
effort had been concentrated into smaller remaining open areas. For 
example, NMFS reduced the closure along the Atlantic coast, 
particularly the Charleston Bump area. This should help to minimize any 
user conflicts that may have occurred as a result of the proposed rule 
because some commercial fishermen in the Charleston Bump area may 
decide not to relocate north. However, the goal of this regulation is 
to reduce bycatch and bycatch mortality in the pelagic longline 
fishery, consistent with the Magnuson-Stevens Act, not to reduce user 
conflicts. NMFS will continue to monitor the impacts of this regulation 
on the environment and fishing interests. If necessary, NMFS will work 
with the APs and may issue additional regulations in order to reduce 
user conflicts.
    Comment 15: If one compares the 1997 summary economic statistics in 
the IRFA with the DSEIS and the 1998 summary statistics in the 
supplemental information about DeSoto Canyon, it appears that the 
fishery is collapsing.
    Response: NMFS disagrees. The level of participation in the fishery 
may appear to have declined because the IRFA undertaken for the 
proposed rule and the DSEIS used data from the northeast logbooks, 
whereas the analysis for the supplemental DeSoto Canyon alternative did 
not. The use of these northeast logbooks in the DeSoto Canyon analysis 
would increase the number of vessels that reported landings in 1998; 
however, most of these vessels reported few, if any, landings from 
areas in or near the final time/area closures, and would not be 
directly affected by the DeSoto closure. In addition, the average gross 
revenue per permit holder increases by 21 percent when comparing the 
1997 data with the 1998 data ($113,173 versus $137,126).
    Comment 16: While smaller areas would minimize the economic impacts 
on commercial fishermen, the District of Columbia Circuit Court of 
Appeals recently held that conservation concerns outweigh concerns 
about the potential economic impacts of fishery regulations.
    Response: NMFS agrees that conservation concerns are important. 
However, NMFS also recognizes that the proposed rule would have 
significant economic impacts. For this reason, NMFS re-examined the 
data and revised the final actions to achieve similar, or better, 
conservation impacts while reducing the economic impacts. NMFS feels 
that the suite of final actions (the revised time/area closures and the 
live bait prohibition) will have greater conservation benefits than the 
proposed regulations and serves to better mitigate economic impacts.
    Comment 17: The proposal violates the Regulatory Flexibility Act 
and would create social and economic devastation to fishing families 
and communities.
    Response: NMFS disagrees that the proposed or final regulations 
violate the RFA. The RFA imposes an analytical requirement and 
specifies procedures for assessing the impacts of proposed regulations 
on small entities. Federal Agencies must determine the economic impact, 
explore feasible alternatives for reducing the economic impact, and 
explain the reason for the regulatory choice. Further, the RFA requires 
that the Federal Agency obtain public comment on the analysis, and that 
comments be addressed in a justification of the final action. NMFS 
believes that the analyses in the

[[Page 47234]]

proposed rule and supplemental information meet all the requirements of 
the RFA. NMFS recognizes that the final regulations will have large 
impacts on many fishing families and communities but notes that the RFA 
does not preclude an Agency from implementing regulations having such 
impacts. NMFS chose final actions that meet the conservation goals and 
minimized the economic impacts, to the extent practicable.
    Comment 18: Regional market gluts, especially associated with bad 
weather events and/or quota closures, should be expected to reduce ex-
vessel prices.
    Response: NMFS agrees that the time/area closures may have some 
impact on ex-vessel price particularly if closures or bad weather keep 
commercial fishermen from fishing in the open areas. However, given the 
extent of the remaining open areas in the Gulf and along the Atlantic 
coast, NMFS does not believe that the time/area closures would change 
the ex-vessel price significantly or cause significant market gluts.
    Comment 19: NMFS should omit dealers who only import foreign fish 
from the analysis; in reality, domestic dealers who primarily offload 
and purchase ``trip-fish'' are few and far between and those in the 
closed areas will be impacted far greater than NMFS has analyzed.
    Response: NMFS agrees that dealers who purchase most of their fish 
from vessels that now fish the designated closed areas will be greatly 
affected by these regulations. However, neither the IRFA nor FRFA 
considered imported fish. Instead, these analyses only considered fish 
sold to dealers by swordfish limited access permit holders.
    Comment 20: Pelagic longline vessels need to gross at least 
$500,000 year to be profitable; NMFS' estimate for gross ex-vessel 
revenues is too low.
    Response: NMFS disagrees that the estimate for average ex-vessel 
gross revenues used in the IRFA and FRFA is too low. A number of 
studies performed on the voluntary economic add-on of the pelagic 
logbook indicate that many fishermen are operating on the margin and 
are not profitable. One study found that the average gross revenue per 
vessel was $118,804. This is similar to the average of $113,173 used in 
the IRFA and $137,126 used in the FRFA. Thus, while some vessels may 
gross over $500,000, the majority of vessels do not.

Changes From the Proposed Rule

    For reasons explained in the responses to comments listed in the 
preceding text, NMFS has modified the proposed rule to balance bycatch 
reduction objectives with the need to mitigate economic impacts. The 
proposed western Gulf of Mexico closure has been changed to a Gulf-wide 
prohibition on the use of live bait with pelagic longline gear. Also, 
the year-round DeSoto Canyon closed area has been added to further 
reduce dead discards of small swordfish. The proposed southeastern 
United States closed area has been split into northern and southern 
components: a seasonal (February 1- April 30) closure for the 
Charleston Bump area and a year-round closure for the Florida East 
Coast area.
    To facilitate enforcement, several new definitions and prohibitions 
were added, and the proposed descriptions of fishing gear and the 
conditions for transit of the closed areas were revised. These 
revisions prohibit fishing activity of any type, regardless of gear 
actually deployed or target species, when a vessel issued an HMS permit 
is in a closed area with pelagic longline gear on board. Additionally, 
this final rule establishes a rebuttable presumption that fish on board 
a vessel in a closed area were taken in the closed area with a pelagic 
longline if that gear is on board. This imposes a burden on the vessel 
operator to demonstrate that such fish were taken outside the closed 
area (e.g., logbook entries, VMS signature).

Conclusions

    In this final rule, NMFS prohibits pelagic longline fishing in 
areas with relatively higher bycatch rates because this alternative 
would best address the conservation and management objectives embodied 
in the FMP as required by the Magnuson-Stevens Act and ICCAT 
recommendations. Under the effort redistribution model, the final time/
area closures, in conjunction with the live bait prohibition, are 
expected to reduce swordfish discards by 31 percent and sailfish 
discards by 29 percent; blue marlin and white marlin discards could 
increase by 3 percent and 7 percent, respectively. The final action 
time/area closures in the DeSoto Canyon, East Florida Coast and 
Charleston Bump could reduce the number of swordfish kept by 13 percent 
and the number of dolphin kept by 18 percent, while BAYS tunas landings 
would increase by nearly 10 percent.
    The final area closures, together with the ban on live bait 
longlining in the Gulf of Mexico, appropriately meet the objectives of 
the Billfish and HMS FMPs and have the greatest likelihood of reducing 
bycatch while minimizing, to the extent possible, adverse impacts on 
fishing revenues and costs. Should future research indicate that 
practicable gear modifications could further reduce bycatch of managed 
HMS and/or protected resources, NMFS will consider those gear 
modifications in conjunction with, or as an alternative to, time-area 
closures. In addition, NMFS will address turtle bycatch in the pelagic 
longline fishery in a separate rulemaking (see the following ESA 
discussion). Future regulatory measures to reduce sea turtle bycatch 
may involve additional area closures and/or further modifications to 
fishing gear and methods in defined areas of high interaction rates.
    NMFS notes that there are similarities and differences between the 
time-area closures for pelagic longline gear contained in this final 
rule and those contained in legislation pending before Congress. Should 
any of the Congressional bills become law, NMFS will modify the 
measures contained in this final rule as necessary.

Compliance Guide

    Under the Small Business Regulatory Enforcement Fairness Act of 
1996, Federal Agencies are required to provide small business entities 
with a plain-language summary of how to comply with new regulations. 
Copies of the compliance guide for this final rule are available from 
Rebecca Lent (see ADDRESSES). To facilitate distribution, the 
compliance guide is also included in this document:
    Q1: I am a recreational fisherman. Will these regulations affect 
me?
    A: No. These regulations only affect commercial fishermen who use 
pelagic longline gear in the Atlantic ocean and have a Federal permit 
for Atlantic HMS.
    Q2: I use pelagic longline gear. Will these regulations affect me?
    A: Yes, if you have a Federal permit for Atlantic HMS. These 
regulations will prohibit you from fishing with pelagic longline gear 
in certain areas and times and from using live bait in the Gulf of 
Mexico. The Gulf of Mexico is the area of the U.S. EEZ west of 83 deg. 
W. longitude as defined in 50 CFR 600.105 (c).
    Q3: What is longline gear?
    A: A longline is fishing gear that is set horizontally, either 
anchored, floating, or attached to a vessel, and that consists of a 
mainline with three or more leaders (gangions) and hooks, whether 
retrieved by hand or mechanical means.
    Q4: What is pelagic longline gear?
    A: Pelagic longline gear is defined as a longline that is suspended 
by floats in the water column and that is not fixed to or in contact 
with the ocean bottom. Your vessel has pelagic longline on board when:
    1. A power-operated longline hauler,
    2. A mainline,
    3. High-flyers,

[[Page 47235]]

    4. Floats capable of supporting the mainline, and
    5. Leaders (gangions) with hooks are on board. Removal from the 
vessel of any one of these five elements constitutes removal of pelagic 
longline gear.
    Q5: What are the areas where I can't fish using pelagic longline 
gear?
    A: As of November 1, 2000, you will not be able to fish at any time 
using pelagic longline gear in the DeSoto Canyon area. This area, 
composed of two squares offshore of the west coast of Florida, is 
defined as the area within the following coordinates: 30 deg.00' N. 
lat., 88 deg.00' W. long.; 30 deg.00' N. lat., 86 deg.00' W. long.; 
28 deg.00' N. lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 84 deg.00' 
W. long.; 26 deg.00' N. lat., 84 deg.00' W. long.; 26 deg.00' N. lat., 
86 deg.00' W. long.; 28 deg.00' N. lat., 86 deg.00' W. long.; 
28 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00' N. lat., 88 deg.00' 
W. long.
    As of February 1, 2001, you will not be able to fish at any time 
using pelagic longline gear in the East Florida Coast area. This area, 
located along the east coast of Florida through Georgia, is defined as 
the seaward area within the following coordinates: starting at 
31 deg.00' N. lat. near Jekyll Island, Georgia, and proceeding due east 
to 31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat., 
79 deg.00' W. long.; then proceeding along the boundary of the Economic 
Exclusive Zone (EEZ) to 24 deg.00' N. lat., 79 deg.30' W. long.; then 
connecting by straight lines the following coordinates in the order 
stated: 24 deg.00' N. lat., 79 deg.30' W. long.; 24 deg.00' N. lat., 
81 deg.00' W. long.; 24 deg.00' N. lat., 81 deg.47' W. long.; then 
proceeding due north to intersect the coast at 81 deg.47' W. long. near 
Key West, Florida.
    Also, as of February 1, 2001, you will not be able to fish using 
pelagic longline gear from February through April each year in the 
Charleston Bump area. This area, located off of North Carolina, is 
defined as 34 deg.00' N. lat. near Wilmington Beach, North Carolina, 
and proceeding due east to connect by straight lines the following 
coordinates: 34 deg.00' N. lat., 76 deg.00' W. long.; 31 deg.00' N. 
lat., 76 deg.00' W. long.; then proceeding due west to intersect the 
coast at 31 deg.00' N. lat. near Jekyll Island, Georgia.
    Q6: Are all three areas closed year-round?
    A: No. The Charleston Bump area is closed only February 1 through 
April 30 of each year. The other two areas, DeSoto Canyon and East 
Florida Coast, are closed year-round.
    Q7: Are there any gear or fishing method restrictions in this rule?
    A: Yes. As of September 1, 2000, in the Gulf of Mexico, pelagic 
longline fishermen are not allowed to use live bait. Setting up a live 
well or maintaining live baitfish on board is prohibited. You may not 
have a tank or well attached to an aeration or water circulation device 
or have live baitfish if a pelagic longline is on board.
    Q8: I am a recreational fisherman. Can I use live bait?
    A: Yes. These regulations do not affect recreational fishermen.
    Q9: I am a commercial fisherman but I don't use pelagic longline. 
Will these regulations affect me?
    A: As long as you do not have a pelagic longline on board your 
vessel, you will be able to fish in the closed areas. See question 
number 4 above for an explanation of the five elements of pelagic 
longline gear.
    Q10: I use pelagic longline gear but do not have a limited access 
permit to fish for highly migratory species. Will these regulations 
affect me?
    A: These closed areas and gear restrictions apply only to 
commercial fishermen who hold Federal permits for Atlantic HMS. While 
unpermitted vessels may fish for other species with pelagic longline 
gear in these areas, no tunas, swordfish, billfish, or sharks may be 
retained on board those vessels. However, NMFS is working with the 
Regional Councils to ensure consistency between regulations for all 
pelagic longline fisheries.
    Q11: Will I need to buy a vessel monitoring system (VMS)?
    A: If you are a commercial fisherman with Federal permits for 
Atlantic HMS and you have pelagic longline gear on board, you will need 
to have a VMS operational by September 1, 2000.
    Q12: Can I transit the closed areas or will I need to go around 
them?
    A: If you have pelagic longline gear on board and possess a Federal 
Atlantic HMS permit, you will be allowed to transit the area if your 
vessel has a working VMS unit, but you will not be allowed to fish with 
any gear type. If you have pelagic longline gear on board, it is 
assumed that any fish on board were caught with pelagic longline in the 
closed area and you will have to demonstrate that the fish were 
harvested outside the closed area. If you do not have pelagic longline 
on board, you may fish in the area.
    Q13: Is there a vessel buyback program associated with this rule?
    A: No. This rule does not have a buyback program associated with 
it. Legislation pending before Congress may address vessel buybacks.
    Q14: I have the Federal swordfish, shark, and tuna limited access 
permits. If I decide to leave the pelagic longline fishery, can I sell 
my permits?
    A: Yes. You can sell your limited access permits individually, as a 
group, with the vessel, or without the vessel. If you have directed 
permits, upgrading restrictions for horsepower, length overall, and net 
and gross tonnage apply. For more information on transferring or 
renewing limited access permits, please contact the NOAA Fisheries 
Southeast region permit office in St. Petersburg, FL, at (727) 570-
5326.

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 et seq.
    NMFS prepared an initial regulatory flexibility analysis for the 
proposed rule. Based on comments received on the proposed rule and on 
the IRFA (see Comments and Responses section), NMFS has amended the 
final actions and has revised the regulatory flexibility analysis 
accordingly. The final regulatory flexibility analysis FRFA assumes 
that fishermen, during the time they would otherwise be pelagic 
longline fishing in the designated areas would instead (1) make 
longline sets in other areas, (2) participate in other commercial 
fisheries, or (3) exit commercial fishing. As of March 23, 2000, 450 
vessel owners had been issued for limited access permits for swordfish, 
sharks, and the Atlantic tunas Longline category. With these three 
permits, these 450 fishermen may use a pelagic longline to target 
Atlantic swordfish (if they have a directed swordfish permit), Atlantic 
tunas, or Atlantic sharks (if they have a directed shark permit). If 
they have an incidental swordfish or incidental shark permit, these 
fishermen could still target Atlantic tunas. Thus, the number of small 
entities directly affected by this regulation consists of at least 
these 450 fishermen. In addition, other sectors of the commercial 
fishery might be affected by this regulation, including dealers, 
processors, bait houses, and hook manufacturers. Using the weighout 
slips submitted by fishermen reporting in the pelagic longline logbook, 
NMFS estimates that 125 dealers received fish in 1998 from the 450 
fishermen who qualified under the limited access program. NMFS also 
received comments that the businesses associated with the recreational 
and charter/headboat sectors of the HMS fisheries may also experience 
economic impacts as a result of the commercial fishing effort 
displacement which would result from the time/area closures. On 
balance, though, these impacts are likely to be positive as gear 
conflicts will be reduced in some areas and the availability of target 
species will increase for the recreational sector.

[[Page 47236]]

    Under this final action, a decrease in gross revenues will result 
for some proportion of the affected small entities in the commercial 
fishing sector. Under the final time/area closure actions, NMFS 
estimates that, assuming the worst case scenario, the average annual 
gross revenues per permit holder could decrease by nearly 5 percent to 
about $130,000. Additionally, NMFS estimates that under the final 
closure actions approximately 43 percent of the vessels that reported 
landings in 1998 will experience at least a 5-percent decrease in gross 
revenues and approximately 14 percent of the vessels will experience at 
least a 50-percent decrease in gross revenues (i.e., be forced out of 
business). The final rule closures will also have an economic impact on 
dealers. About 15 percent of the permitted dealers could experience at 
least a 5-percent reduction in the amount of fish handled due to the 
DeSoto Canyon area closure, while 28 percent could experience at least 
five percent reduction in the amount of fish handled due to the 
Charleston Bump and East Florida Coast closures. However, to the extent 
that landings of HMS are likely to increase in other areas, gains will 
accrue to certain other vessel operators and dealers.
    Based on comments received on the proposed rule and the IRFA, NMFS 
has adopted a ban on live bait sets in lieu of the western Gulf of 
Mexico closed area. While a prohibition on live bait may reduce the 
landings of some pelagic longline fishermen, particularly yellowfin 
tuna landings, it is not likely that this final action will have a 
large impact on the gross revenues of any permit holder. More likely, 
this final action may have an impact on the net revenues of some permit 
holders since it will change the method of fishing. Requiring the use 
of frozen bait might increase costs by up to 22 percent for fishermen 
who currently use live bait. However, the use of dead bait might 
decrease the time at sea (since a number of days are used up fishing 
for live bait) and a decrease in the time spent at sea might decrease 
the cost of fuel, groceries, or the costs associated with catching the 
bait and keeping it alive. Thus, even though fishermen might need to 
spend additional money up front in order to leave for a fishing trip, 
this alternative might be beneficial if more sea time is available to 
fish for target species. In any event, the economic impacts of a live 
bait prohibition are expected to be less significant than under the 
proposed closure.
    The alternatives considered include the status quo, gear 
modifications, and a ban on pelagic longline fishing by U.S. vessels in 
the Atlantic Ocean. Although the status quo and gear modification 
alternatives might have lesser economic impacts on participants in the 
pelagic longline fishery, those alternatives either do not reduce 
bycatch to the extent that NMFS expects to be achieved by the time-area 
closures or present enforcement difficulties. While a complete ban on 
longline fishing would reduce bycatch to a greater extent than the 
time-area closures, the lost value of commercial seafood products and 
the adverse impacts on fishery participants and fishing communities 
would impose greater costs than the final action.
    In addition to changes from the proposed rule, NMFS has decided to 
delay implementation of some of the final regulations to help mitigate 
some of the economic impacts fishermen may experience as a result of 
the time/area closures and to give fishermen and related industries a 
chance to relocate both business interests and families. The RIR/FRFA 
provides further discussion of the economic effects of the final 
actions and all the alternatives considered.
    This final action will not impose any additional reporting or 
recordkeeping requirements on vessel operators or dealers. Vessel 
logbooks, dealer reports, observer notification, and VMS requirements 
applicable to the HMS fisheries are all currently approved by the 
Office of Management and Budget under existing regulations.
    In preparing the draft HMS FMP and Billfish Amendment, NMFS 
reinitiated formal consultation for all Highly Migratory Species 
commercial fisheries on May 12, 1998, under section 7 of the ESA. In a 
BO issued on April 23, 1999, NMFS concluded that operation of the 
Atlantic pelagic longline fishery may adversely affect, but is not 
likely to jeopardize, the continued existence of any endangered or 
threatened species under NMFS' jurisdiction. Certain provisions of the 
BO were incorporated into the final rule that implemented the FMPs and 
consolidated the HMS regulations (e.g., moving after encounters and 
limiting the mainline length). Other provisions of the BO required non-
regulatory programmatic actions (e.g., research and monitoring).
    The Incidental Take Statement (ITS) of the April 23, 1999, BO 
authorized the following levels of incidental take in the pelagic 
longline fisheries: 690 leatherback sea turtles (Dermochelys coriacea), 
entangled or hooked (annual estimated number) of which no more than 11 
are observed hooked by ingestion or moribund when released; 1541 
loggerhead sea turtles (Caretta caretta) entangled or hooked (annual 
estimated number) of which no more than 23 may be hooked by ingestion 
or observed moribund when released.
    Observed take levels documented in 1999 indicate that, of all the 
turtles taken, up to 50 loggerheads and 19 leatherbacks were observed 
``hooked by ingestion'' or moribund upon release. However, only about 3 
percent observer coverage was obtained and the anticipated take levels 
were based on 5 percent observer coverage. Thus, the observed levels of 
take would likely have been considerably higher had the required 5 
percent coverage level been achieved. If the target observer coverage 
level had been achieved, NMFS preliminarily projects that up to 83 
loggerheads and 32 leatherbacks would have been observed ``hooked by 
ingestion'' or moribund in 1999.
    On November 19, 1999, NMFS reinitiated consultation under Section 7 
of the ESA because observed take of loggerhead sea turtles by the 
Atlantic pelagic longline fishery had exceeded levels anticipated in 
the ITS. The consultation included this pelagic longline management 
rulemaking because the time/area closures, if implemented, could affect 
the overall interaction rates with sea turtles depending on fishermen's 
responses in terms of shifting pelagic longline effort or fishing for 
other species with other gear. The consultation also addressed the 
shark drift gillnet fishery and the Atlantic tunas purse seine 
fisheries; however, the following discussion addresses only issues in 
the BO that apply specifically to the pelagic longline fishery which is 
the subject of this final rule.
    After reviewing the current status of the northern right whale, the 
humpback, fin and sperm whales, and leatherback, loggerhead, green, 
hawksbill, and Kemp's ridley sea turtles, the environmental baseline 
for the action area, the effects of implementation of the proposed 
Amendment to the Atlantic HMS FMP, the record of compliance with 
requirements of previous BOs on HMS fisheries, and probable cumulative 
effects, it is NMFS' BO that continued operation of the Atlantic 
pelagic longline fishery is likely to jeopardize the continued 
existence of loggerhead and leatherback sea turtles.
    According to the BO, to avoid the likelihood of jeopardizing the 
continued existence of loggerhead and leatherback sea turtles, NMFS 
must implement fishery management measures to reduce the number of 
these turtles that are incidentally captured, injured, killed by gear 
associated with federally-managed

[[Page 47237]]

fisheries by at least 75 percent from current levels; that is, a 
reduction in the number of loggerhead and leatherback sea turtles 
captured, injured, or killed compared with a running average of the 
number captured, injured, or killed during the period 1993 to 1999. The 
reduction can be accomplished directly by gear modifications or it can 
be accomplished indirectly by changing the method by which gear is 
deployed.
    Indirect modifications could include managing fisheries that use 
harmful gear over time and space to eliminate the likelihood of 
interactions between loggerhead sea turtles and gear (proportional to 
the threat posed by specific gear); managing fisheries to eliminate the 
likelihood that loggerhead sea turtles captured by gear would drown 
before they can be released (such as keeping soak times to less than 30 
to 45 minutes); excluding gear from areas that, based on available 
data, appear to be important for loggerhead sea turtles; or, any 
combination of these changes that reduce the number of loggerhead sea 
turtles that are incidentally captured, injured, and killed by gear 
associated with federally-managed fisheries by at least 75 percent from 
current levels.
    The BO identified the Reasonable and Prudent Alternatives (RPAs) 
necessary to avoid jeopardy, and listed the Reasonable and Prudent 
Measures (RPMs) and Terms and Conditions (TCs) necessary to authorized 
continued takes. According to the BO, if NMFS cannot develop and 
implement direct or indirect management measures that reduce the number 
of loggerhead sea turtles that are incidentally captured, injured, and 
killed by gear associated with federally managed fisheries by at least 
75 percent from current levels, the following RPAs must be implemented: 
modifications in fishing gear or method (e.g., requirement for 
corrodible hooks or limiting fishing activity to certain temperature 
and time of day regimes); or exclusion zones (e.g., temporally and 
spatially restricting pelagic longline effort in the Grand Banks area); 
and enhanced monitoring.
    Section 9 of ESA and Federal regulations issued pursuant to section 
4(d) of ESA prohibit the take of endangered and threatened species, 
respectively, without special exemption. Incidental take is defined as 
take that is incidental to, and not the purpose of, the carrying out of 
an otherwise lawful activity. Under sections 7(b)(4) and 7(o)(2) of the 
ESA, taking that is incidental to and not intended as part of the 
Agency action is not a prohibited taking, provided that such taking is 
in compliance with the RPMs and TCs of the ITS. Section 7(b)(4)(c) of 
the ESA specifies that in order to provide an ITS for an endangered or 
threatened species of marine mammal, the taking must be authorized 
under section 101(a)(5) of the Marine Mammal Protection Act of 1972 
(MMPA). Since no incidental take has been authorized under section 
101(a)(5) of the MMPA, no statement on incidental take of endangered 
whales is provided and no take is authorized.
    Regarding anticipated incidental take of sea turtles in the pelagic 
longline fishery for swordfish, tunas, and sharks, it is hoped that 
this final rule to reduce bycatch in the pelagic longline fishery, 
which may slightly increase take levels of sea turtles, will be more 
than offset by the additional requirements to implement the RPMs 
according to the terms and conditions of the ITS. The BO states that 
the RPMs that are necessary and appropriate to minimize take of listed 
species include an effective monitoring and reporting system to 
document take, educating fishermen to reduce the potential for serious 
injury or mortality of hooked turtles, and assessments of current data 
to look for trends that may indicate management measures to reduce the 
number of protected species interactions.
    In order to be exempt from the take prohibitions of section 9 of 
ESA, the June 30, 2000, BO requires NMFS to comply with certain terms 
and conditions which would implement the RPMs described earlier and 
outline required reporting/monitoring requirements. The terms and 
conditions are non-discretionary and require: at-sea observer coverage; 
information collection on the condition of sea turtles and marine 
mammals when released; the presence and use of dipnets and cutting 
devices on all longline vessels; review of turtle bycatch and release 
mortality studies; financial support for genetic research to identify 
sea turtle subpopulations; examination of the influence of gear and 
fishing technique modifications such as light sticks and length of 
mainline on protected species interaction rates.
    NMFS will address the requirements of the BO in a subsequent 
rulemaking and by certain non-regulatory actions. In the interim, this 
final rule will not result in any irreversible and irretrievable 
commitment of resources that will have the effect of foreclosing the 
formulation or implementation of any RPAs necessary to reduce impacts 
on protected species.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 635

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

    Dated: July 26, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    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.


    2. In Sec. 635.2, the definition of ``High-flyer'' is revised and 
new definitions for ``Charleston Bump closed area,'' ``DeSoto Canyon 
closed area,'' ``East Florida Coast closed area,'' ``Handline,'' 
``Longline,'' and ``Pelagic longline'' are added in alphabetical order 
to read as follows:


Sec. 635.2  Definitions.

* * * * *
    Charleston Bump closed area means the Atlantic Ocean area seaward 
of the baseline from which the territorial sea is measured from a point 
intersecting the U.S. coast at 34 deg.00' N. lat. near Wilmington 
Beach, North Carolina, and proceeding due east to connect by straight 
lines the following coordinates in the order stated: 34 deg.00' N. 
lat., 76 deg.00' W. long.; 31 deg.00' N. lat., 76 deg.00' W. long.; 
then proceeding due west to intersect the coast at 31 deg.00' N. lat. 
near Jekyll Island, Georgia.
* * * * *
    DeSoto Canyon closed area means the area within the Gulf of Mexico 
bounded by straight lines connecting the following coordinates in the 
order stated: 30 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00' N. 
lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 86 deg.00' W. long.; 
28 deg.00' N. lat., 84 deg.00' W. long.; 26 deg.00' N. lat., 84 deg.00' 
W. long.; 26 deg.00' N. lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 
86 deg.00' W. long.; 28 deg.00' N. lat., 88 deg.00' W. long.; 
30 deg.00' N. lat., 88 deg.00' W. long.
* * * * *
    East Florida Coast closed area means the Atlantic Ocean area 
seaward of the baseline from which the territorial sea is measured from 
a point intersecting the U.S. coast at 31 deg.00' N. lat. near Jekyll 
Island, Georgia, and proceeding due east to connect by straight lines 
the following coordinates in the order

[[Page 47238]]

stated: 31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat., 
79 deg.00' W. long.; then proceeding along the boundary of the EEZ to 
24 deg.00' N. lat., 79 deg.30' W. long.; then connecting by straight 
lines the following coordinates in the order stated: 24 deg.00' N. 
lat., 79 deg.30' W. long.; 24 deg.00' N. lat., 81 deg.00' W. long.; 
24 deg.00' N. lat., 81 deg.47' W. long.; then proceeding due north to 
intersect the coast at 81 deg.47' W. long. near Key West, Florida.
* * * * *
    Handline means fishing gear that consists of a mainline to which no 
more than two leaders (gangions) with hooks are attached, and that is 
released and retrieved by hand, rather than by mechanical means.
    High-flyer means a flag, radar reflector or radio beacon 
transmitter, suitable for attachment to a longline to facilitate its 
location and retrieval.
* * * * *
    Longline means fishing gear that is set horizontally, either 
anchored, floating, or attached to a vessel, and that consists of a 
mainline or groundline with three or more leaders (gangions) and hooks, 
whether retrieved by hand or mechanical means.
* * * * *
    Pelagic longline means a longline that is suspended by floats in 
the water column and that is not fixed to or in contact with the ocean 
bottom.
* * * * *

    3. In Sec. 635.4, paragraph (a)(10) is added, and paragraph (e)(4) 
is removed, to read as follows:


Sec. 635.4  Permits and fees.

* * * * *
    (a) * * *
    (10) Permit condition. An owner issued a swordfish or shark permit 
pursuant to this part must agree, as a condition of such permit, that 
the vessel's swordfish or shark fishing, catch and gear are subject to 
the requirements of this part during the period of validity of the 
permit, without regard to whether such fishing occurs in the EEZ, or 
outside the EEZ, and without regard to where such swordfish or shark, 
or gear are possessed, taken or landed. However, when a vessel fishes 
within the waters of a state that has more restrictive regulations on 
swordfish or shark fishing, persons aboard the vessel must abide by the 
state's more restrictive regulations.
* * * * *

    4. In Sec. 635.21, paragraph (c) introductory paragraph and 
paragraph (c)(2) are revised, and paragraph (c)(4) is added to read as 
follows:


Sec. 635.21  Gear operation and deployment restrictions.

* * * * *
    (c) Pelagic longlines. For purposes of this part, a vessel is 
considered to have pelagic longline gear on board when a power-operated 
longline hauler, a mainline, high-flyers, floats capable of supporting 
the mainline, and leaders (gangions) with hooks are on board. Removal 
of any one of these elements constitutes removal of pelagic longline 
gear. If a vessel issued a permit under this part is in a closed area 
designated under paragraph (c)(2) of this section with pelagic longline 
gear on board, it is a rebuttable presumption that fish on board such 
vessel were taken with pelagic longline gear in the closed area.
* * * * *
    (2) If pelagic longline gear is on board a vessel issued a permit 
under this part, persons aboard that vessel may not fish or deploy any 
type of fishing gear in:
    (i) The Northeastern United States closed area from June 1 through 
June 30 each calendar year;
    (ii) In the Charleston Bump closed area from February 1 through 
April 30 each calendar year;
    (iii) In the Florida East Coast closed area at any time beginning 
at 12:01 a.m. on February 1, 2001; and,
    (iv) In the DeSoto Canyon closed area at any time beginning at 
12:01 a.m. on November 1, 2000.
* * * * *
    (4) In the Gulf of Mexico: pelagic longline gear may not be fished 
or deployed from a vessel issued a permit under this part with live 
bait affixed to the hooks; and, a person aboard a vessel issued a 
permit under this part that has pelagic longline gear on board shall 
not maintain live baitfish in any tank or well on board the vessel and 
shall not possess live baitfish, and shall not set up or attach an 
aeration or water circulation device in or to any such tank or well. 
For the purposes of this section, the Gulf of Mexico includes all 
waters of the U.S. EEZ west and north of the boundary stipulated at 50 
CFR 600.105(c).
* * * * *

    5. In Sec. 635.69, paragraph (a) is revised by adding a second 
sentence to read as follows:


Sec. 635.69  Vessel monitoring systems.

    (a) Applicability. * * * A vessel is considered to have pelagic 
longline gear on board for the purposes of this section, when gear as 
specified at Sec. 635.21(c) is on board.
* * * * *

    6. In Sec. 635.71, paragraphs (a)(30), (31), and (32) are added to 
read as follows:


Sec. 635.71  Prohibitions.

* * * * *
    (a) * * *
    (30) Deploy or fish with a pelagic longline greater than the 
maximum length authorized for any area specified at Sec. 635.21(c)(1).
    (31) Deploy or fish with any fishing gear from a vessel with a 
pelagic longline on board in any closed area during the time periods 
specified at Sec. 635.21(c)(2).
    (32) In the Gulf of Mexico, deploy or fish a pelagic longline with 
live bait affixed to the hooks or to possess live bait, or set up a 
well or tank to maintain live bait, aboard a vessel with pelagic 
longline gear on board as specified at Sec. 635.21(c)(4).
* * * * *
[FR Doc. 00-19272 Filed 7-31-00; 8:45 am]
BILLING CODE 3510-22-F