[Federal Register Volume 70, Number 160 (Friday, August 19, 2005)]
[Proposed Rules]
[Pages 48804-48838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15965]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 300, 600, and 635



Atlantic Highly Migratory Species; Recreational Atlantic Blue and White 
Marlin Landings Limit; Amendments to the Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks and the Fishery Management Plan 
for Atlantic Billfish; Proposed Rule

  Federal Register / Vol. 70, No. 160 / Friday, August 19, 2005 / 
Proposed Rules  

[[Page 48804]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300, 600, and 635

[Docket No. 050805217-5217-01; I.D. 051603C]
RIN 0648-AQ65


Atlantic Highly Migratory Species; Recreational Atlantic Blue and 
White Marlin Landings Limit; Amendments to the Fishery Management Plan 
for Atlantic Tunas, Swordfish, and Sharks and the Fishery Management 
Plan for Atlantic Billfish

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

ACTION: Proposed rule; availability of the Fishery Management Plan 
(FMP); petition for rulemaking; proposed rule withdrawal; request for 
comments; public hearings.

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SUMMARY: NMFS proposes to consolidate the Fishery Management Plan (FMP) 
for Atlantic Tunas, Swordfish, and Sharks and the FMP for Atlantic 
Billfish, to change certain FMP management measures, to adjust 
regulatory framework measures, and to continue the process for updating 
essential fish habitat. The alternatives described in this proposed 
rule could impact fishermen and dealers for all Atlantic highly 
migratory species (HMS) fisheries. The range of alternatives examined 
includes those to: establish mandatory workshops for fishermen and 
dealers; consider methods of modifying and establishing time/area 
closures; address rebuilding and overfishing of northern albacore tuna, 
finetooth sharks, and Atlantic billfish; modify bluefin tuna (BFT) 
General Category subperiod quotas and simplify the management process 
of BFT; change the fishing year for tunas, swordfish, and billfish back 
to a calendar year; authorize additional fishing gears; and clarify 
numerous existing regulations, particularly in 50 CFR part 635. This 
proposed rule also announces the receipt of a petition for rulemaking 
regarding bluefin tuna and describes the analyses conducted as part of 
this rulemaking, in response to the petition, to consider closure areas 
in the Gulf of Mexico. In this proposed rule, NMFS also formally 
withdraws a proposed rule published September 17, 2003, to establish an 
annual domestic recreational landing limit of 250 Atlantic blue and 
white marlin and other measures.

DATES: Comments on this proposed rule and draft FMP must be received no 
later than 5 p.m. on October 18, 2005.
    Public hearings on this proposed rule and draft FMP will be held in 
September and October 2005. For specific dates and times see the 
SUPPLEMENTARY INFORMATION section of this document.
    The September 17, 2003, proposed rule (68 FR 54410) is withdrawn as 
of August 18, 2005.

ADDRESSES: The public hearings will be held in Port Aransas, TX; New 
Orleans, LA; Orange Beach, AL; Panama City, Madeira Beach, Key West, 
Fort Lauderdale, Fort Pierce, and Atlantic Beach, FL; Charleston, SC; 
Manteo, NC; Virginia Beach, VA; Ocean City, MD; Cape May and Barnegat 
Light, NJ; Islip and Montauk, NY; Narragansett, RI; New Bedford and 
Gloucester, MA; Portland, ME; St. Thomas, USVI; and San Juan and 
Mayaguez, PR. For specific locations see the SUPPLEMENTARY INFORMATION 
of this document.
    Written comments on the proposed rule and draft HMS FMP may be 
submitted to Karyl Brewster-Geisz, Highly Migratory Species Management 
Division:
     Email: [email protected]. Include in the subject line 
the following identifier: Atlantic HMS FMP.
     Mail: 1315 East-West Highway, Silver Spring, MD 20910. 
Please mark the outside of the envelope ``Comments on Draft HMS FMP.''
     Fax: 301-427-2592.
     Federal e-Rulemaking Portal: http://www.regulations.gov.
    Copies of the draft HMS FMP and other relevant documents are 
available from the Highly Migratory Species Management Division website 
at www.nmfs.noaa.gov/sfa/hms or by contacting Karyl Brewster-Geisz at 
301-713-2347.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz, Margo Schulze-
Haugen, or Heather Stirratt at 301-713-2347 or fax 301-713-1917; Russ 
Dunn at 727-824-5399 or fax 727-824-5398; or Mark Murray-Brown at 978-
281-9260 or fax 978-281-9340.

SUPPLEMENTARY INFORMATION: 
    The Atlantic HMS fisheries are managed under the dual authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and the Atlantic Tunas Convention Act (ATCA). The FMP for 
Atlantic Tunas, Swordfish, and Sharks, finalized in 1999, and the FMP 
for Atlantic Billfish, finalized in 1988, are implemented by 
regulations at 50 CFR part 635.
    Since the 1999 final rule (May 28, 1999; 64 FR 29090) that 
consolidated Atlantic HMS regulations and implemented the 1999 Atlantic 
Tunas, Swordfish, and Shark FMP and Amendment 1 to the Atlantic 
Billfish FMP, a number of management issues have arisen that require 
further reconsideration or action. Many of these actions are linked to 
each other and are best analyzed in conjunction with other actions. 
This proposed rule and draft HMS FMP cover many of these issues and 
topics including: minimizing bycatch or bycatch mortality, rebuilding 
overfished fisheries, and modifying existing management strategies. 
Some of the alternatives proposed relate to regulations under the 
Magnuson-Stevens Act or the Endangered Species Act (ESA). Other 
proposed actions would improve the clarity and effectiveness of 
existing regulations or the process to be followed when taking action, 
consistent with the FMPs. Some of the actions proposed in this rule 
would amend the FMP while other actions would adjust the management 
measures without amending the FMP. The need for each action is 
described later in this document with the analyses of each alternative.
    NMFS announced its intent to conduct an Environmental Impact 
Statement (EIS) amending the two current fishery management plans on 
July 9, 2003 (68 FR 40907). On April 30, 2004 (69 FR 23730), NMFS 
announced the availability of an Issues and Options Paper and nine 
scoping meetings. On May 26, 2004 (69 FR 29927), NMFS extended the 
comment period on the Issues and Options Paper, and announced an 
additional scoping meeting. During this time, NMFS also presented the 
Issues and Options Paper to the New England, Mid-Atlantic, and Gulf of 
Mexico Fishery Management Councils and the Atlantic States Marine 
Fisheries Commission. A summary of the major comments received during 
scoping was released in December 2004 and is available on the HMS 
Management Division website or by requesting a hard copy (see 
ADDRESSES). During scoping, NMFS referred to this project as Amendment 
2 to the existing FMPs. Starting with the Predraft stage, NMFS has 
referred to this project as the draft HMS FMP.
    In February 2005, NMFS released the combined Predraft to the 
Consolidated HMS FMP and annual Stock Assessment and Fishery Evaluation 
(SAFE) Report. NMFS presented the Predraft document to all five 
Atlantic Fishery Management Councils, both the Atlantic and Gulf of 
Mexico States Marine Fisheries Commissions, and to

[[Page 48805]]

the HMS and Billfish Advisory Panels. Comments received on both the 
Issues and Options Paper and the Predraft were considered when drafting 
and analyzing the ecological, economic, and social impacts of the 
alternatives in the proposed rule. A summary of the comments received 
on the Predraft was released in June 2005 and is available on the HMS 
Management Division website or by requesting a hard copy (see 
ADDRESSES).
    This proposed rule and the accompanying draft HMS FMP are the 
culmination of the analyses of the comments received on the Issues and 
Options paper and the Predraft document. In addition, the draft HMS FMP 
continues the process to conduct a five-year review of essential fish 
habitat (EFH) consistent with the EFH guidelines (the process started 
with the release of the Issues and Options Paper in April 2004). At 
this time, NMFS is reviewing the information available for all HMS, 
including billfish, and will determine which species need updates to 
their EFH identifications. Any updates or resulting changes in 
management will be done in a future rulemaking.
    As described below, NMFS is also taking additional actions in this 
proposed rule: (1) a formal withdrawal of the 2003 proposed rule to 
implement the ICCAT 250 fish limit (September 17, 2003; 68 FR 54410) 
and (2) a formal decision not to include in the draft HMS FMP the 
exemption to the ``no sale'' provision for the artisanal handline 
fishery in Puerto Rico as outlined in the 1988 Billfish FMP. NMFS has 
also reviewed a petition for rulemaking from Blue Ocean Institute et 
al. that requested NMFS look at a particular BFT spawning area in the 
Gulf of Mexico (copies of the petition can be requested, see 
ADDRESSES). An additional consideration was a settlement agreement 
related to white marlin that is awaiting court approval in the Center 
for Biological Diversity v. NMFS, Civ. Action No. 04-0063(D.D.C). The 
petition and settlement agreement are discussed further in the Time/
Area Closures section below.

Consolidation of FMP for Atlantic Tunas, Swordfish, and Sharks and FMP 
for Atlantic Billfish

    Currently, management of Atlantic HMS is accomplished through two 
different FMPs: the FMP for Atlantic Tunas, Swordfish, and Sharks and 
the FMP for Atlantic Billfish. The 1999 decision to maintain two 
different FMPs was based on the idea that the billfish fishery is 
recreational only while the tuna, swordfish, and shark fisheries are 
both commercial and recreational. Despite this decision, the 
regulations for both of these FMPs were consolidated under 50 CFR part 
635 in 1999.
    Since that decision, NMFS has further recognized the interrelated 
nature of these fisheries and the need to consider management actions 
collectively. For example, anglers fishing for Atlantic tunas, 
swordfish, sharks, or billfish must obtain an HMS Angling permit and 
must follow the recreational bag and size limits for all these species. 
Additionally, any management measures enacted for billfish recreational 
fishermen will likely have impacts on recreational fishermen for other 
HMS and vice versa. Thus, in the draft HMS FMP related to this rule, 
NMFS consolidates the two FMPs into one FMP, the consolidated Atlantic 
HMS FMP.
    Consolidating the FMPs will allow NMFS to take a more ecosystem-
based approach to these fisheries whose recreational fishermen often 
fish for tunas, swordfish, sharks, and billfish on the same trip and 
are required to have the same permit, and whose commercial fishermen 
catch billfish as bycatch while targeting other HMS. NMFS does not 
expect the consolidation of the FMPs to have an impact on the existing 
regulations because the regulations have been combined since 1999. NMFS 
also does not expect any impact on the priorities of the agency or on 
the composition of the Advisory Panels as a result of the 
consolidation.
    Unless specifically proposed in this rule or in the HMS FMP, the 
draft HMS FMP, in itself, would not change existing provisions of 
either the 1999 Atlantic Tunas, Swordfish, and Shark FMP (and its 2003 
amendment), the 1988 Billfish FMP (and its 1999 amendment), or any 
implementing regulations. However, the 1988 FMP for Atlantic Billfish 
contained a prohibition on the sale or purchase of Atlantic billfish, 
and simultaneously included a limited exemption from the ``no sale'' 
provision to accommodate a small-scale artisanal fishery in Puerto Rico 
that occasionally landed blue marlin. The exemption to the ``no sale'' 
provision was subject to a number of conditions and restrictions, 
including: only billfish caught on handlines having fewer than six 
hooks could be retained for sale; vessels retaining billfish for sale 
could not have a rod and reel onboard; billfish could be sold only in 
Puerto Rico; a maximum of 100 billfish per year could be landed and 
sold; if more than 100 billfish per year were landed under the 
exemption, the Councils would consider removing the exemption; all 
existing fishermen wishing to sell billfish would be required to obtain 
a permit; the Caribbean Fishery Management Council, in cooperation with 
the Government of the Commonwealth of Puerto Rico, would develop and 
implement a system for tracking billfish landings under the exemption; 
and the exemption would not be in effect until the permitting and 
tracking systems were operative, pending approval by the five involved 
Councils at that time.
    The exemption from the ``no sale'' provision for the Puerto Rican 
artisanal handline fishery has never been implemented because the 
aforementioned conditions have not been met, either prior to or 
following transfer of the FMP to Secretarial authority. NMFS is 
proposing not to carry forward the exemption to the no sale provision 
for the Puerto Rican artisanal handline fishery into the draft HMS FMP 
based on the overfished status of Atlantic billfishes, non-fulfillment 
of the conditions necessary to implement the exemption to the no sale 
provision and resultant non-implementation of the provision over a 
period of 18 years, public comment, and the support of the involved 
fishery management councils (specifically the Caribbean Council, which 
would be most directly impacted by the potential elimination of the 
exemption provision).

Analyses of Alternatives

    The following is a summary of the alternatives analyzed in the DEIS 
for the HMS FMP. These elements are arranged in the following sections: 
Bycatch Reduction, Rebuilding and Preventing Overfishing, Management 
Program Structure, and EFH Update.

1. Bycatch Reduction

    Under National Standard 9 of the Magnuson-Stevens Act, NMFS is 
required, to the extent practicable, to minimize bycatch and, to the 
extent that bycatch cannot be avoided, minimize bycatch mortality. In 
this proposed rule, NMFS examined two strategies specifically aimed at 
reducing bycatch and bycatch mortality: conducting workshops to teach 
handling/release techniques and species identification, and examining 
the effectiveness of time/area closures in reducing bycatch. As 
described below, other sections (e.g., Section 2 regarding finetooth 
sharks) in this proposed rule also consider the requirement to minimize 
bycatch and bycatch mortality. Detailed analyses of bycatch reduction 
alternatives are presented in the draft HMS FMP. Only a summary of the 
major points addressing workshops and time/area closures are described 
below.

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A. Workshops
    NMFS is proposing at 50 CFR 635.8 two types of workshops for 
participants in HMS fisheries. The first type would instruct 
participants in the safe handling, release, and identification of 
protected resources. The second type would instruct participants in the 
correct identification of HMS, particularly Atlantic sharks. The 
alternatives for and discussion of these workshops is provided below. 
Regardless of the requirements, any fishermen, dealer, or interested 
party would be welcome to attend any or all protected species or HMS 
identification workshops.
i. Protected Species Workshops
    On October 29, 2003, a Biological Opinion (BiOp) was issued in 
conjunction with Atlantic shark fishery management measures implemented 
in a final rule for Amendment 1 to the 1999 HMS FMP (December 24, 2003; 
68 FR 74746). Among other requirements, the 2003 BiOp included a 
requirement for workshops or other training programs to disseminate 
information regarding protocols and equipment for safe release and 
disentanglement of protected species, including information specific to 
smalltooth sawfish and sea turtles. The 2003 BiOp specifically required 
that the workshops concentrate on ways to reduce the potential for 
serious injury or mortality should incidental capture via hooking or 
entanglement occur.
    On June 1, 2004, a BiOp for the HMS pelagic longline fishery 
concluded that the continued operation of the pelagic longline fishery 
is likely to jeopardize the continued existence of leatherback sea 
turtles. In order to achieve the target post-release mortality rates 
for sea turtles specified in the 2004 BiOp, it is imperative that NMFS 
ensure all participants are aware of, and are proficient with, the safe 
release and disentanglement gears and protocols outlined in the BiOp. 
Mandatory workshops that would provide this type of training for vessel 
operators are required in the 2004 BiOp.
    In addition to addressing safe handling and disentanglement 
protocols, the workshops in this proposed rule would also disseminate 
information specific to the identification of protected resources 
commonly encountered during longline and gillnet fishing activities. 
Providing fishermen with the skills necessary to properly identify 
protected resources that are encountered during fishing activities 
would increase the likelihood that they employ the proper release and 
disentanglement protocols, improve the accuracy of logbook data and 
extrapolated take estimates, and assist fishermen in complying with the 
reporting regulations in 50 CFR part 635.
    The preferred alternatives for the protected resources workshops 
would implement one-day mandatory workshops and certification for HMS 
pelagic and bottom longline and shark gillnet vessel owners and 
operators by January 1, 2007. Mandatory vessel owner attendance would 
provide a link to vessel permit issuance and renewal ensuring that 
workshops are well attended and ensuring that vessel owners, if they 
are not the vessel operators, know what should be happening on their 
vessels. Shark and directed or incidental swordfish limited access 
permits would not be renewed without a copy of the certificate if 
logbooks indicate that longline or gillnet gear were used on at least 
one trip for that vessel in the preceding year or, in the case of 
vessels that were transferred in the preceding year, since the 
transfer. Mandatory operator attendance ensures that there is at least 
one person on board the vessel during fishing activities that is adept 
at the safe handling and release protocols and protected resource 
identification. Additionally, all owners and operators that attended 
and successfully completed industry certification workshops (held on 
April 8, 2005, in Orlando, Florida, and on June 27, 2005, in New 
Orleans, Louisiana), as documented by the workshop facilitators, are 
proposed to receive automatically valid protected species workshop 
certificates prior to the effective date of January 1, 2007. These 
workshops were attended by NMFS personnel, sponsored by industry 
representatives with experience in sea turtle handling and release 
protocols and fishing gear, and well-attended by pelagic longline 
fishermen.
    The preferred one-day workshops are not expected to result in 
excessive economic impacts, as they will be scheduled at numerous 
locales along the Atlantic coast, including the Gulf of Mexico and 
Caribbean, minimizing travel and lost fishing time. Requiring HMS 
longline and shark gillnet owners and operators to attain 
recertification every three years would balance the ecological benefits 
of maintaining familiarity with the protocols and the economic impacts 
of travel costs and lost fishing opportunities due to workshop 
attendance.
    NMFS considered a range of alternatives for these protected species 
workshops including voluntary workshops (no action). NMFS felt that 
voluntary workshops could limit the dissemination of the safe release, 
disentanglement, and protected resources identification information, 
and, therefore, would not guarantee compliance with the BiOps.
    NMFS also considered mandatory workshops for the owners, operators, 
and the crew of all HMS longline vessels. This alternative would 
require the greatest number of participants to become skilled in the 
release protocols and protected resource identification. This 
alternative was not preferred due to the level of economic impacts to 
the longline fishery and the transient nature of vessel crew members. 
Under the preferred alternatives, because operators would be required 
to attend the workshops, the operators would be responsible for 
ensuring that the appropriate crew members were proficient at the 
release techniques and protected resource identification.
    In addition to the three-year mandatory recertification for the 
protected species workshops, NMFS also considered mandatory 
recertification every two or five years. Recertification every two 
years may yield the most positive ecological impacts, however, this 
alternative would also have the greatest economic costs to the 
industry. Recertification every five years may allow a more extensive 
period of time to lapse between certification workshops than necessary 
to maintain proficiency and provide fishermen with updates on research 
and development of handling and dehooking protocols.
ii. HMS Identification Workshops
    The second type of workshops would aim to improve HMS 
identification skills. NMFS considered these workshops due in part to 
comments received from the HMS Advisory Panel and members of the 
general public stating the need for improved identification skills of 
participants in HMS fisheries, especially shark dealers. The preferred 
alternatives would require anyone federally permitted to receive, 
trade, purchase, or barter sharks from a vessel (shark dealers), or a 
suitable proxy, to attend an HMS identification workshop for 
certification before January 1, 2007. If a dealer opts to send a proxy, 
the dealer must designate a proxy from each place of business covered 
by the dealer's permit. The proxy would need to be a person who is 
employed by a place of business covered by the dealer's permit; is a 
primary participant in identification, weighing, or first receipt of 
fish as they are offloaded from a vessel; and is involved in filling 
out dealer reports.

[[Page 48807]]

The permitted shark dealer or proxy would need to renew the 
certification every three years. Shark identification is challenging 
for dealers because they encounter many different shark species lacking 
fins and head (sharks that are dressed are often called ``logs''). 
Dealers are required to enter species data into dealer reports based on 
their purchase of fish from numerous fishermen. These reports are used 
for stock assessments and quota monitoring. Thus, incorrect species 
data could have ecological impacts and, in the long-term, could impact 
the accuracy of stock assessments. Economic and social impacts on the 
shark dealers would be minimized by offering workshops at several 
locations per region, near commercial and recreational HMS fishing 
ports during non-peak fishing times.
    NMFS considered a range of alternatives for these identification 
workshops including voluntary HMS identification workshops for dealers, 
recreational fishermen, and all commercial vessel owners and operators 
(no action). From previous voluntary workshops on other topics, NMFS 
has found that voluntary workshops are generally not well attended and 
therefore are often not an efficient use of resources.
    NMFS also considered mandatory identification workshops for all HMS 
dealers. However, requiring all HMS dealers to attend may be 
inappropriate as swordfish and tuna dealer permit holders generally 
only see a relatively limited number of HMS species and are not faced 
with the same identification difficulties as the shark dealers. NMFS 
felt that other alternatives, such as mandatory workshops for 
commercial longline owners and/or operators, are a lower priority 
because these individuals observe the fish intact, thereby facilitating 
a positive species-specific identification. While these fishermen may 
need workshops in the future, in this proposed rule and draft HMS FMP, 
NMFS felt requiring shark dealers, whose data are used for both quota 
monitoring and stock assessments and who must identify more numerous 
and difficult species, was a higher priority at this time. Generally, 
logbook data is used for stock assessment purposes and to verify dealer 
reports, not quota monitoring. Alternatives to expand participation to 
include owners and/or operators in the charter headboat, general 
category, and handgear/harpoon fisheries could result in extensive 
negative economic impacts due to travel and lost fishing time as it 
would involve a much larger portion of the fishery. Mandatory workshops 
for all HMS Angling permit holders would result in the most extensive 
negative economic impacts as it would affect the largest single group 
of permit holders.
    NMFS also considered recertification every two, three, and five 
years. Recertification every two years has a greater economic impact to 
the dealers and a slightly positive impact on species identification. 
Since the identification of the species is not likely to change in the 
two years (species names do occasionally change as scientific 
information improves) and the dealers are interacting with the species 
on a regular basis, the certification renewal could take place with 
less frequency. Decreasing the frequency of renewal to every five years 
could introduce greater error in the species identification if the 
dealer begins to confuse similar species. Requiring the shark dealers 
to attain recertification every three years would balance the 
ecological benefits of maintaining the ability to properly identify the 
sharks and the economic impacts of workshop attendance due to travel 
costs and lost fishing opportunities.
B. Time/Area Closures
    Time/area closures were first implemented for Atlantic HMS 
beginning in 1999 in order to reduce bycatch and bycatch mortality 
while minimizing the reduction in target catch. As described in the 
draft HMS FMP, these closures have proven to be effective at reducing 
bycatch. Nonetheless, several HMS such as blue and white marlin and 
bluefin tuna are overfished with overfishing still occurring, and 
protected species such as leatherback and loggerhead sea turtles 
continue to interact with HMS gears. As a result, NMFS considered a 
range of alternatives to implement additional closures and/or modify 
existing closures, as necessary. As reflected in the HMS FMP, NMFS 
conducted extensive analyses regarding the impact of closures on all 
bycatch, particularly white and blue marlin, sea turtles, and bluefin 
tuna, in developing alternatives and selecting preferred alternatives. 
Also, as noted earlier, the analyses took into account the BFT spawning 
ground petition and the white marlin settlement agreement. NMFS is 
proposing to implement two alternatives that would: (1) complement the 
Gulf of Mexico Fishery Management Council's (GMFMC) time/area closures 
regarding Madison-Swanson and Steamboat Lumps closed areas and (2) 
establish criteria to be considered when contemplating regulatory 
framework adjustments to implement new time/area closures or make 
modifications to existing time/area closures.
    The first preferred alternative would implement HMS management 
measures in the Madison-Swanson and Steamboat Lumps closed areas, 
consistent with a September 2003 GMFMC request to NMFS. The proposed 
rule would prohibit all HMS fishing from November through April in the 
Madison-Swanson and Steamboat Lump closures, and allow recreational 
surface trolling only from May through October. If implemented, the HMS 
management measures would expire on June 16, 2010, consistent with 
GMFMC recommendations. Both of these closures are located just 
shoreward of the current DeSoto Canyon Closed Area for pelagic longline 
fishing in HMS fisheries.
    These closed areas were implemented in 2000 by the GMFMC in order 
to provide protection for spawning aggregations of gag grouper. The 
GMFMC requested NMFS to close the areas to HMS fishing to eliminate a 
loophole and to allow the GMFMC a better opportunity to evaluate the 
effectiveness of the closed area as a fishery management tool. Other 
species, including various groupers, snappers, and porgies could 
benefit by the closures. Any impacts on HMS species and HMS fishermen 
and communities are expected to be minimal. Only three HMS commercial 
trips were reported in the closed areas from 1997 to 2003. 
Additionally, recreational and charter/headboat fishing trips for HMS 
in the closed areas are not likely to be significantly curtailed due to 
the allowance for surface trolling from May through October, which are 
the prime fishing months.
    The second preferred alternative would establish criteria at 50 CFR 
635.34(d) to be considered when implementing new time/area closures or 
making modifications to existing time/area closures. These criteria 
would provide a more definitive process for the establishment or 
modification of time/area closures while allowing for greater 
transparency and predictability in the decision-making process. 
Criteria that would be considered may include the following: any ESA-
related issues, concerns, or requirements, including applicable 
Biological Opinions; bycatch rates of protected species, prohibited 
HMS, or non-target species both within the specified or potential 
closure area(s) and throughout the fishery; bycatch rates and post-
release mortality rates of bycatch species associated with different 
gear types; new or updated landings information, bycatch, and fishing 
effort data; applicable research;

[[Page 48808]]

social and economic impacts; and the practicability of implementing new 
or modified closures, including consistency with the FMP, Magnuson-
Stevens Act, and other applicable law. If the species is an ICCAT-
managed species, NMFS would need to determine the overall effect of the 
United States' catch of that species before implementing time/area 
closures. In these cases, other factors that NMFS would consider before 
implementing time/area closures include gear types and the location of 
and timing of a closed area. NMFS would attempt to balance ecological 
benefits with economic and social impacts. NMFS would also consider 
alternatives to closed areas, such as reducing quota(s), mandatory gear 
modifications, or alternative fishing practices such as designated 
fishing days. Thus, before the implementation of a time/area closure, 
NMFS would determine that such a closure would be the best option for a 
given set of management goals, consistent with the FMP, the Magnuson-
Stevens Act, and applicable laws.
    Besides implementing new time/area closures, NMFS may also consider 
modifying existing closed areas using these same criteria. The current 
time/area closures were implemented to meet specific management 
objectives relevant at that time and were intended to be reviewed and 
modified as appropriate, over time as those objectives were met or 
other management issues arose. Specifically, NMFS intended to modify 
existing closures, as necessary, to allow utilization of a given 
fishery once the objectives of the time/area closures had been met. 
Additionally, modifications may be needed if data showed the desired 
impact was not being met or oceanographic conditions changed. 
Additionally, because fisheries, fishing gear, fishing practices, and 
stock status change over time, occasionally NMFS must examine the 
continued need for existing time/area closures. One method of doing 
this would be for NMFS to conduct, fund, or support research, such as 
testing methods for reducing bycatch of protected, prohibited, and non-
target species. Such research would need to be part of a scientifically 
justified research plan, identifying the rationale, objectives, 
methodology, and experimental design of the research, and it would be 
limited in scope and magnitude in terms of ecological and socio-
economic impacts. Research in both open and closed areas may be 
warranted to collect data on the spatial and temporal relationship 
between target and bycatch species and to provide data for use in 
considering the criteria listed above. Such research could be 
cooperative in nature to include different stakeholders in the research 
process.
    Ultimately, the criteria above are aimed to develop smaller, more 
focused time/area closures that maximize bycatch reduction while 
minimizing reductions in catch of target species. The criteria 
themselves would not be expected to have any ecological, economic, or 
social impacts. Rather, the appropriate use of the criteria would be 
expected to have overall positive ecological impacts; NMFS would 
minimize, to the extent practicable, economic and social impacts.
    As a clarification, the primary goals of time/area closures are to 
maximize the reduction of bycatch of non-target and protected species 
while minimizing the reduction in the catch of target species and 
minimizing the social and economic impacts. However, closures are not 
the only means of addressing bycatch, and in some cases, may increase 
bycatch (see analyses in the HMS FMP of many of the time/area closure 
alternatives). Bycatch in and of itself would not necessitate 
implementation of a time/area closure but could if the HMS stock was 
either overfished and/or experiencing overfishing; the bycatch is a 
prohibited, threatened, or an endangered species; and no other option 
exists to reduce interactions in the time period required. In such 
cases, time/area closures could be part of a rebuilding plan for 
overfished species and/or serve as a method for decreasing interactions 
with protected species.
    Besides the two preferred alternatives described above, NMFS 
considered a number of additional alternatives including: (1) 
Maintaining the existing time/area closures (no action alternative); 
(2) prohibiting the use of pelagic longline gear in HMS fisheries in 
the central portion of the Gulf of Mexico from May through November; 
(3) prohibiting the use of pelagic longline gear in HMS fisheries in 
the Northeast during the month of June; (4) prohibiting the use of 
pelagic longline gear in HMS fisheries in the Gulf of Mexico from April 
through June; (5) prohibiting the use of pelagic longline gear in HMS 
fisheries in the Gulf of Mexico west of 86[deg] W. Long. year-round; 
(6) prohibiting the use of pelagic longline gear in HMS fisheries in an 
area of the Northeast to reduce sea turtle interactions; (7) modifying 
the existing Charleston Bump time/area closure to allow the use of 
pelagic longline gear in all areas seaward of the axis of the Gulf 
Stream; (8) modifying the existing Northeastern U.S. time/area closure 
to allow the use of pelagic longline gear in areas west of 72[deg]47' 
W. Long. during the month of June; (9) prohibiting the use of bottom 
longline gear in an area off the Florida Keys to protect endangered 
smalltooth sawfish; and (10) prohibiting the use of pelagic longline 
gear in HMS fisheries in all areas. All of the alternatives above could 
be implemented alone or in combination with any of the other 
alternatives. In the draft HMS FMP, NMFS describes the impacts of some 
of the most likely combinations of alternatives.
    The no action alternative has been effective at reducing bycatch 
and bycatch mortality in HMS fisheries. However, maintaining the 
existing closures would not protect spawning areas of gag grouper, per 
the GMFMC request. The various alternatives to close portions of the 
Gulf of Mexico or mid-Atlantic could have some ecological benefit for 
some target and non-target species and protected species and negative 
ecological impacts for other species. Detailed analyses of each 
alternative are provided in the HMS FMP. As reflected in those 
analyses, NMFS did not find any closure or group of closures that would 
have positive ecological benefits for all species examined, 
particularly marlin, sea turtles, and BFT. Even when combining the 
alternatives, the ecological benefits for some species were minimal at 
best with increases in discards of other species. Additionally, the 
economic and social impacts of the additional closures considered could 
be substantial. Thus, NMFS is not preferring any new closures at this 
time, but may consider these closures again in the future if additional 
protections for a specific species or group of species is needed.
    One of the Gulf of Mexico alternatives that NMFS considered was 
suggested in a petition for rulemaking from Blue Ocean Institute et al. 
as a means of protecting western Atlantic BFT that return to the Gulf 
of Mexico to spawn. This alternative would prohibit the use of pelagic 
longline gear in HMS fisheries in the Gulf of Mexico bluefin tuna 
spawning area from April through June (101,670 nm\2\; 3 months). 
Assuming no redistribution of effort (i.e., all hooks set in the 
proposed closure area are removed and not set in any open areas), the 
logbook data indicate that this alternative would potentially reduce 
discards of all of the species being considered from a minimum of 0.8 
percent for pelagic sharks to a maximum 21.5 percent for bluefin tuna. 
However, assuming that effort is redistributed to open areas (i.e., all 
hooks set in the proposed closure area are replaced by hooks set in 
remaining open areas),

[[Page 48809]]

bycatch is predicted to increase for all species except leatherback and 
other sea turtles. Even bluefin tuna discards, which showed a fairly 
dramatic decline without redistribution of effort, are predicted to 
increase by 9.8 percent with redistribution of effort. The apparent 
increase in predicted bluefin tuna discards with redistribution of 
effort is likely due to the fact that bluefin tuna are caught in months 
other than April through June in the Gulf of Mexico, as well as the 
high number of bluefin tuna discards in other areas. This is reflected 
in some of the other alternatives analyzed as described in the draft 
HMS FMP.
    NMFS also considered alternatives that would modify existing 
closures. As with the analyses of new closures, the analyses of the 
modifying existing closures showed mixed results in terms of ecological 
benefits and economic impacts. In some cases, the modified areas would 
result in captures of smaller sized swordfish or in higher levels of 
bycatch. For these reasons, NMFS does not prefer any modifications to 
the existing closures at this time. However, because the ecological 
impacts were generally minimal, these alternatives could be considered 
as a means to offset any negative ecological or economic impacts 
resulting from any future time/area closures.
    NMFS considered but is not preferring a closure of an area off 
Florida to protect smalltooth sawfish, at this time. While the area 
examined contains the largest number of smalltooth sawfish observed 
caught in the bottom longline fishery, only five smalltooth sawfish 
have been observed caught there. It is possible that closing this area 
could displace fishing effort into an area that has higher smalltooth 
sawfish catch rates or that is more critical toward the recovery of the 
species. A Smalltooth Sawfish Recovery Team is working to produce a 
recovery plan for smalltooth sawfish and to designate critical habitat. 
In order to better ensure positive ecological impacts on sawfish and to 
minimize any economic impacts on fishermen, NMFS would prefer to wait 
until the recovery plan is complete before taking action.
    NMFS also considered prohibiting the use of pelagic longline gear 
in all HMS fisheries. This alternative could have some ecological 
benefits for any non-migratory species that remain within the U.S. EEZ. 
However, for species that travel outside the U.S. EEZ, such as HMS or 
sea turtles, this alternative could have negative ecological benefits 
because these species need to be internationally managed. In the case 
of HMS, the United States takes only a small portion of the total 
allowable catch (TAC). In the case of sea turtles, unlike many other 
countries, the United States interacts with a minimal number of turtles 
and releases all of those caught. If the United States reduces the 
amount of HMS taken commercially by a significant amount by prohibiting 
pelagic longline fishing, other countries likely would take the U.S. 
portion of the TAC and would export those fish to U.S. consumers. Many 
of those countries do not have the bycatch reduction measures that the 
United States does. Furthermore, the United States is one of the few 
countries that supply much of the research on HMS and other species 
that interact with pelagic longline gear. Additionally, prohibiting the 
use of pelagic longline gear would have significant negative economic 
impacts on fishermen, fishing communities, suppliers, and dealers in 
all Atlantic and Gulf of Mexico states. Thus, NMFS prefers to seek 
other commercial and recreational management measures that could reduce 
bycatch without the adverse international or economic impacts of 
prohibiting pelagic longline.

2. Rebuilding and Preventing Overfishing

    The Magnuson-Stevens Act requires NMFS to rebuild overfished 
species and to prevent overfishing. The draft HMS FMP addresses 
alternatives for three stocks (northern Atlantic albacore tuna, 
finetooth sharks, and Atlantic billfish) that have been determined to 
be either overfished or experiencing overfishing.
A. Northern Albacore Tuna
    The U.S. fishery for northern Atlantic albacore is essentially 
dominated by two sectors. The commercial longline sector harvests 
albacore tuna as incidental bycatch in the swordfish and tunas pelagic 
fisheries. The recreational rod and reel sector targets albacore and 
other tunas out of northeast coastal ports. In the October 1999 Report 
to Congress on the Status of U.S. Fisheries, NMFS identified the 
northern albacore tuna stock as overfished. International fishery 
management efforts are needed for northern albacore tuna as the United 
States actually contributes to only a small portion of northern 
albacore tuna mortality. It is likely that preventing all U.S. 
mortality would not prevent overfishing from occurring on this stock. 
Alternatives for developing a rebuilding plan for northern albacore 
were published in a proposed rule issued on May 24, 2000 (65 FR 33519), 
and were discussed in the EA/RIR/IRFA prepared for that proposed rule. 
In the final rule (December 12, 2000; 65 FR 77523), NMFS indicated 
that, in establishing the foundation for an international rebuilding 
program, it would work through ICCAT to adopt a target stock size 
together with a time frame for rebuilding that included flexibility. 
Since the final rule, the U.S delegation to ICCAT has advocated a TAC 
for northern albacore tuna set at a level less than the current 
estimate of replacement yield (34,500 mt ww). Other ICCAT members have 
not shared the U.S. position that immediate catch reductions were 
needed to rebuild the spawning stock biomass to levels that would 
support MSY. Consequently, ICCAT has responded by adopting a series of 
recommendations (annually for 2000-2003) to set a TAC at the 
replacement yield level of 34,500 mt through 2006, together with 
country specific allocations in order to control compliance. In 
addition, the 1998 recommendation on limiting vessel capacity for 
northern albacore tuna has remained in force. Irrespective of the 
established TAC, reported catches have been significantly below the 
replacement yield level in recent years. Major harvesters (European 
Union countries) have attributed the decline in catches to gear changes 
(shifting from banned gillnets to trolling) and to availability (fish 
concentrations further offshore under prevailing oceanographic 
conditions) rather than further declines in abundance. If true, the low 
catches in recent years may have allowed some rebuilding to occur. 
Depending on the results of the scheduled 2007 stock assessment, the 
United States will continue to seek an international northern albacore 
tuna rebuilding program with a target stock level, a time table, and 
reference points. Because the formal rebuilding plan was not included 
in the 1999 Atlantic Tunas, Swordfish, and Sharks FMP, it is considered 
here for inclusion in the FMP. NMFS considered three different 
alternatives: establish a foundation for an international rebuilding 
program (the preferred alternative), no action, and establish a 
unilateral rebuilding plan. No regulatory text is proposed or required 
for this alternative. Regulatory text would be proposed, as warranted, 
once a international rebuilding plan is established.
    ICCAT has determined that the northern albacore tuna stock is below 
the biomass necessary to sustain maximum sustainable yield (MSY). 
Management advice from ICCAT's Standing Committee for Research and 
Statistics (SCRS) noted a stable stock at annual catches of 34,500 
metric tons (mt) whole weight (ww), while spawning stock biomass could 
be

[[Page 48810]]

increased if catches do not exceed 31,000 mt ww. Since ICCAT's 
recommendation establishing a TAC was issued in 2000, the United States 
has annually taken less than two percent of the recorded total annual 
international landings, averaging 416 mt ww a year. This average is 
well below the United States annual TAC allocation of 607 mt ww, which 
has not been exceeded in any year.
    The preferred alternative would seek to establish a foundation that 
can be used in negotiations with ICCAT to develop a rebuilding program 
for Atlantic northern albacore tuna, including targets for recovery, 
fishing mortality rate limits, and explicit interim milestones 
expressed in terms of measurable improvements of the stock. If 
successful, an Atlantic-wide revised TAC for northern albacore tuna, 
along with other conservation and management measures, would be adopted 
by ICCAT to rebuild the stock. The United States would then implement 
the ICCAT Rebuilding Program for albacore through appropriate measures 
(such as quotas, effort limitations, size and retention limits), in 
concert with the ICCAT recommendations, in the domestic fisheries.
    The United States is responsible for only two percent of Atlantic-
wide albacore landings; thus, the rebuilding plan would rely heavily on 
international cooperation and compliance with management measures. U.S. 
domestic fleets could experience short term negative economic impacts 
if harvest or effort restrictions become necessary; however, under 
current effort levels, the United States fleet would have to be 
restricted by more than 25 percent on average of the current TAC before 
an impact would be felt. If minimum size or retention limits were part 
of the ICCAT rebuilding plan, the United States pelagic longline fleet 
could be negatively impacted by having to discard a portion of the 
albacore catch. This may also result in an increase of dead discards if 
individual fish do not survive capture and release. The recreational 
fleet could also be impacted, as catch limitations might have a 
negative impact on the angler consumer surplus, but the extent is 
unknown, as many recreational trips targeting albacore often target 
other tunas or coastal pelagic species. This also may result in an 
increase of dead discards. The other alternatives of no action or 
unilateral action are not expected to rebuild northern albacore tuna. 
Thus, they are not preferred.

B. Finetooth Sharks

    Finetooth sharks are small coastal sharks (SCS) found in shallow, 
inshore waters of the south Atlantic and Gulf of Mexico. The 2002 stock 
assessment for SCS determined that overfishing of finetooth sharks is 
occurring but that other species in the SCS complex were not overfished 
or experiencing overfishing. The next SCS stock assessment will take 
place in 2007. These sharks are primarily caught with gillnet, bottom 
longline, or recreational gear.
    There are currently only five vessels that specifically target 
sharks with gillnet gear in the South Atlantic. These vessels 
contribute less than 10 percent to the overall commercial finetooth 
shark landings. The majority of finetooth shark landings are occurring 
in other commercial fisheries that are not targeting sharks but landing 
them incidentally to other species. These fisheries include fisheries 
in state waters, fisheries managed by the Regional Fishery Management 
Councils, Interstate Marine Fisheries Commissions, and/or fisheries 
that are not currently managed by either state or Federal regulations. 
NMFS considered four alternatives to address overfishing of finetooth 
sharks.
    Under the preferred alternative, NMFS would identify sources of 
finetooth shark fishing mortality by: (1) contacting the Atlantic 
Fishery Management Councils, Interstate Marine Fisheries Commissions, 
and states to collect more data on finetooth landings outside of HMS 
fisheries, (2) expanding existing observer coverage in the existing 
directed shark gillnet fishery observer program to include all 
incidental and directed shark permit holders fishing with gillnet gear, 
and (3) ensuring that finetooth sharks are included as a select species 
for bycatch sampling in the shrimp trawl fishery observer program. NMFS 
would use this information on how and by whom finetooth sharks are 
caught and/or landed, in a new stock assessment and in guiding 
additional management measures. No regulatory text is proposed or 
required for this alternative at this time. Regulatory text would be 
proposed, as warranted, in a separate rulemaking.
    The no action alternative would not result in obtaining the 
additional information on finetooth shark landings necessary to 
determine which fisheries may be contributing to fishing mortality. 
This alternative would result in negative ecological impacts because it 
would not enable NMFS to determine which fisheries are catching 
finetooth sharks.
    NMFS also considered an alternative enacting commercial management 
measures including trip limits, a reduction in the SCS quota, closing 
the directed shark gillnet fishery, and/or gear restrictions. These 
measures could result in additional dead discards as finetooth sharks 
are susceptible to a broad range of gillnet mesh sizes, are generally 
dead at harvest, and appear to be caught in gillnet fisheries that are 
not targeting sharks and that would continue to fish for their target 
species while discarding finetooth sharks. Reducing the SCS quota would 
have limited conservation benefits as finetooth sharks only comprise 35 
percent of commercial landings and the SCS quota is not fully utilized. 
Based on comprehensive observer data, the five vessels that use gillnet 
gear to target sharks are only responsible for a small portion of the 
finetooth shark fishing mortality. Therefore, closing this fishery 
would not likely prevent overfishing. Under this alternative, fishermen 
targeting sharks would likely experience economic impacts as a result 
of having to switch gear, having to spend more time traveling to and 
from offloading sites as a result of reduced soak times or a trip 
limit, or as a result of being prevented from fishing.
    NMFS considered a fourth alternative that would require the use of 
circle hooks on recreational trips targeting SCS and/or increasing the 
minimum size for finetooth sharks. NMFS does not have any conclusive 
evidence that use of circle hooks would decrease post hooking mortality 
of sharks, although, they have proven effective at reducing post 
hooking mortality for other HMS species. Thus, NMFS is not preferring 
this alternative, but is encouraging recreational fishermen to use 
circle hooks and is considering requiring the use of circle hooks in 
billfish tournaments (see Section C Atlantic Billfish below). Finetooth 
sharks only comprise 1.5 percent of the recreational harvest of SCS, 
therefore, measures directed at the recreational fishery would likely 
have limited conservation benefits especially since the current minimum 
size limit is already above the total length at which finetooth sharks 
are sexually mature. The commercial and recreational management 
measures described in the non-preferred alternatives may be necessary 
once NMFS has determined which fisheries are contributing to finetooth 
shark fishing mortality and/or further information on finetooth shark 
status is attained.

[[Page 48811]]

C. Atlantic Billfish
    Atlantic blue and white marlin are overfished with overfishing 
continuing. West Atlantic sailfish are also overfished. The most recent 
stock assessments for Atlantic blue and white marlin indicate that 
total marlin stock abundance is at approximately 40 percent and 12 
percent, respectively, of biomass levels necessary to support maximum 
sustainable yield (BMSY). The assessments further indicate 
that the fishing mortality rates for Atlantic blue and white marlin are 
estimated to be approximately 4 and 8.25 times higher, respectively, 
than rates which would allow achievement of the maximum sustainable 
yield (FMSY). The most recent stock assessment for west 
Atlantic sailfish was unable to estimate BMSY or 
FMSY, however the assessment considered current catch levels 
sustainable. Current Atlantic-wide stock status of Atlantic blue and 
white marlin, including biomass levels and fishing mortality rates, as 
per the most recent population assessments, do not appear to be 
consistent with achieving domestic management goals of 1.3 BMSY 
for Atlantic blue and white marlin. The United States is proposing 
management measures that will help in achieving this goal, and will 
continue to work with ICCAT on Atlantic billfish rebuilding efforts.
    Given the primarily catch-and-release nature of the U.S. 
recreational Atlantic billfish fishery, and the resultant low level of 
domestic landings, it is appropriate to focus management efforts on 
reducing aggregate fishing mortality, including post-release mortality 
and mortalities associated with landings, rather than reducing landings 
alone. The proposed management measures are anticipated to provide 
further reductions in domestic billfish mortalities in the directed 
recreational Atlantic billfish fishery while minimizing and mitigating 
adverse socio-economic impacts to the extent practicable. These 
proposed management measures are described below under: gear 
restrictions and landings restrictions.
i. Gear Restrictions
    NMFS considered three gear restriction alternatives, including a no 
action alternative. NMFS is proposing at 50 CFR 635.21(e)(2) to limit 
participants in Atlantic billfish tournaments to deploying only non-
offset circle hooks when using natural bait or natural bait/artificial 
lure combinations, effective January 1, 2007, to December 31, 2011. 
This would mean that no person participating in an HMS fishing 
tournament for Atlantic billfish would be allowed to deploy a J-hook or 
offset circle hook in combination with natural bait or a natural bait/
artificial lure arrangement.
    Circle hooks have been shown to significantly reduce injuries and 
post-release mortality as compared to J-hooks for billfish and other 
species. Under certain assumptions, NMFS estimates that requiring 
circle hooks with natural bait or natural bait/artificial lure rigs in 
billfish tournaments could provide a 23-percent absolute reduction in 
the post-release mortality rate for white marlin released in 
tournaments, which equates to a 65.7-percent reduction relative to J-
hooks. Again, under certain assumptions, requiring circle hooks could 
result in an estimated 302 Atlantic white marlin surviving a catch-and-
release event during an average year, that would otherwise be expected 
to die after release. NMFS anticipates that this alternative would also 
provide unquantified positive mortality benefits for other species with 
which billfish tournament participants interact, including, but not 
limited to, sailfish, blue marlin, tunas, dolphin, and wahoo. 
Additional ecological benefits may also accrue outside of tournaments 
as anglers become proficient and comfortable with circle hooks and 
increase voluntary use outside of tournaments.
    NMFS anticipates that socio-economic impacts of this alternative 
would be limited. Hooks represent a minor capital investment relative 
to other costs associated with participating in the billfish fishery. 
NMFS estimates that requiring circle hooks may result in a minor 
positive economic impact for billfish tournament participants as 
information suggests that circle hooks cost slightly less than 
comparable J-hooks, on average. Impacts on hook manufacturers, 
retailers, and anglers would also likely be limited given that J-hooks 
would still be permitted outside of tournaments, and within tournaments 
if paired with artificial lures. Further, the delay in date of 
effectiveness should provide anglers, hook manufacturers, and hook 
retailers, adequate time to utilize stocks of J-hooks that might 
otherwise be used by, or sold to, tournament participants.
    The preferred alternative would allow Atlantic billfish tournament 
participants to continue to use J-hooks with artificial lures on the 
same trip that they are using circle hooks with natural bait. NMFS 
received public comment during scoping and on the predraft document 
that fishermen tend to target white marlin and sailfish with natural 
baits while either drifting or slow trolling and target blue marlin by 
trolling at a higher rate of speed with the fish striking at the lure. 
What is known about hooking mechanics, as well as fishing practices and 
feeding preferences for blue marlin, indicates that trolling circle 
hooks at high speed would likely be ineffective at capturing these 
striking fish. Blue marlin are more likely to be captured as they 
strike at a fast moving lure, as opposed to deeply ingesting a bait or 
lure. This is believed to result in increased rates of hooking in the 
mouth or jaw with less resultant damage to vital tissues or internal 
organs and, ultimately, lower rates of post-release mortality. Known 
rates of post-release mortality for Atlantic white and blue marlin 
captured on recreational gear using J-hooks, 35 percent and 11 percent, 
respectively, supports this contention. As such, NMFS is not proposing 
to eliminate the use of J-hooks with artificial lures.
    The no action alternative would maintain existing recreational 
management measures such as minimum sizes, limiting allowable gear to 
rod and reel only, permitting requirements, and reporting requirements. 
As described above, these measures, in addition to those on the 
commercial fishery, have not been effective at to reducing fishing 
mortality to the appropriate levels. As such, additional actions, 
including international actions, are needed. Furthermore, while minimum 
size limits can constrain landings and associated mortalities by 
limiting the universe of potential fish that qualify for landing, they 
have little effect on post-release mortality.
    NMFS also considered requiring circle hooks with natural baits for 
all participants in all segments of HMS recreational fisheries. While 
this alternative could reduce mortality rates on billfish, it was not 
preferred at this time because there are only limited data on the 
impacts of circle hooks on other HMS species, including effects on 
post-release mortality and catch rates. As such, the impacts of this 
alternative on anglers targeting species other than billfish could not 
be adequately analyzed at this time. As billfish anglers become more 
familiar with circle hooks and begin using them to target other HMS, 
NMFS will likely gather additional information on any potential impacts 
on other species. Similar to the preferred alternative, this 
alternative would allow anglers to continue to use J-hooks with 
artificial lures.
ii. Landings Restrictions
    Currently, NMFS has no measures in place, other than minimum sizes, 
that directly limit landings of Atlantic

[[Page 48812]]

billfish in the Atlantic directed billfish fishery. NMFS considered six 
alternatives, including no action, and is preferring two alternatives 
that could limit landings in the directed Atlantic billfish fishery and 
the mortality associated with such landings, consistent with 
international obligations. The first preferred alternative would codify 
at 50 CFR 635.27 an international recommendation on recreational 
billfish landing limits. The second preferred alternative would allow a 
catch-and-release only fishery for Atlantic white marlin for five 
years, effective in 2007 (see proposed regulations at 50 CFR 635.20, 
635.22, and 635.30).
    At the 2000 ICCAT annual meeting, the United States agreed to limit 
recreational landings of Atlantic blue and white marlin to 250 fish, 
combined, on an annual basis. To codify and implement this 
recommendation, the first preferred alternative would provide for 
inseason minimum size adjustments, effective January 1, 2007. The 
current minimum size limits restrict marlin landings by reducing the 
pool of available legal-sized fish. However, increased effort or 
changes in angler behavior could result in increased landings and 
mortality. Under this alternative, NMFS could increase the minimum size 
of Atlantic blue and white marlin, if necessary, to between 117 - 138 
inches (297 - 350.5 cm) and 70 - 79 inches (178 - 201 cm), 
respectively, during a fishing year to slow landings.
    Allowing for inseason minimum size increases could minimize 
potential adverse socio-economic impacts on late season tournament 
operators and fishery participants by slowing landing rates and 
allowing landings to continue over the entire fishing year. 
Nevertheless, if the 250-marlin limit is achieved or projected to be 
achieved, despite inseason increases in size limits, no Atlantic blue 
or white marlin would be permitted to be taken, retained, or possessed 
from the date at which the limit is achieved or projected to be 
achieved. Minimum size limits would return to the current minimum size 
limits at the start of the subsequent fishing year. Possession of 
marlin would also be permitted at the start of the next fishing year, 
subject to the 250-limit adjusted for any prior overharvest. Consistent 
with ICCAT recommendations, NMFS would subtract any overharvest from 
the subsequent fishing year's landing limit and may carryover any 
underharvest to the subsequent fishing year.
    Prior to the start of each fishing year, NMFS would file with the 
Office of the Federal Register an action establishing the annual 
landing limit for recreationally-caught Atlantic blue and white marlin. 
The need for inseason action and the specific action taken (minimum 
size increase or shift to catch-and-release) would be based upon a 
review of landings, time remaining until conclusion of the current 
fishing year, current and historical landings trends, and any other 
relevant factors. Inseason adjustments would be made by filing an 
adjustment with the Office of the Federal Register. In no case should 
the adjustments be effective less than five days after the date of 
publication.
    Codification of ICCAT landing limits for Atlantic blue and white 
marlin, as well as the attendant compliance mechanisms and carryover 
procedures, are anticipated to have limited positive ecological 
impacts, in and of themselves, given the relatively low level of known 
United States landings. The United States was within the marlin landing 
limit for two of three reported years, and the 2002 exceedence was 
fully offset by carrying forward prior underharvest. These regulations 
may prevent otherwise unrestricted future increases in mortalities 
associated with known landings.
    Difficulties associated with quantifying current marlin landings, 
uncertainty regarding the number of marlin fishermen and absolute 
effort, and uncertainty regarding changes in angler behavior when faced 
with increased minimum sizes or a catch-and-release fishery make 
quantifying the potential socio-economic impacts of this alternative 
difficult. Nevertheless, NMFS believes that the proposed measures 
minimize the adverse socio-economic impacts by improving the likelihood 
of allowing marlin landings for the entire fishing year, while 
complying with international obligations. Impacts associated with 
implementation of the ICCAT landings limits are anticipated to range 
from none to modest, depending on catch rates, angler responses to 
inseason action, and inseason management measures implemented, if any. 
Areas that have late season fishing activity could be impacted to a 
greater extent by increased minimum sizes, however, these impacts are 
expected to be less substantial than if a total prohibition on the 
landing of Atlantic blue and white marlin was required to be 
implemented. If the ICCAT landing limit is achieved despite inseason 
adjustment of the minimum sizes and a total prohibition on possession 
and landings is implemented until new landings are available the 
following season, NMFS estimates that impacts for the fishery as a 
whole would be minor given the catch-and-release nature of the fishery 
and that a landings prohibition would most likely occur late in the 
fishing year. However, communities that might lose tournaments as a 
result of a landings prohibition could experience larger, localized 
impacts. The delay in the date of effectiveness should allow tournament 
operators time to adjust to the new regulations by modifying tournament 
rules and formats. Thus, the delay in effective date further mitigates 
the potential impacts of an inseason shift to catch-and-release only.
    NMFS's second preferred alternative proposes to decrease landings 
and the mortalities associated with landings by allowing only catch-
and-release fishing for Atlantic white marlin. Under this proposed 
management measure, no Atlantic white marlin would be taken, retained, 
or possessed for five years from January 1, 2007, through December 31, 
2011, inclusive.
    The ecological impacts of allowing only catch-and-release fishing 
for Atlantic white marlin would be limited to modest on its own. Known 
landings of Atlantic white marlin ranged between 23 and 116 fish for 
the period 2001 to 2003. Mortality benefits from this alternative would 
be expected to accrue from elimination of landed white marlin, as this 
alternative would not directly impact post-release mortality. However, 
the ecological impacts of this alternative in combination with the 
other preferred alternatives in this rule would likely contribute to a 
noticeable decrease in domestic mortality. For example, this preferred 
alternative coupled with mandatory use of circle hooks when using 
natural baits in billfish tournaments could substantially reduce 
mortality by reducing landings to zero and reducing the post-release 
mortality rate by 23 percent overall or 65.7 percent relative to J-
hooks.
    The ecological benefits of this preferred alternative for other 
species may vary in response to angler behavior. If anglers continue 
catch-and-release fishing for white marlin, there would likely be 
little change in impacts on other species. However, anglers can shift 
effort to target other species, such as sailfish, blue marlin, dolphin, 
and wahoo, to some extent. If this occurs, interactions with those 
species could increase.
    NMFS anticipates that any adverse socio-economic impacts stemming 
from this alternative would be small relative to the fishery as a 
whole, but would likely be heightened in localized areas. The primarily 
catch-and-release nature of fishing for Atlantic white marlin 
(approximately 90 to 99 percent of

[[Page 48813]]

white marlin are released), along with the availability of other 
billfish species for landing and the limited duration of the measure 
(five years), would be expected to minimize and mitigate overall 
adverse impacts. NMFS acknowledges that some fishery participants and 
operators may be unwilling to shift to a catch-and-release format, and 
as such, NMFS estimates that this alternative could result in the 
cancellation of between one and four tournaments, as well as the loss 
of between 69 and 1,213 charters (there are approximately 11,447 
billfish charters and over 400,000 charter for all species). Losses of 
these magnitudes would be minor to modest for the fishery as a whole, 
but would likely be heightened for the local communities in which they 
may occur. Further, the proposed delay in effective date would likely 
allow tournament operators and anglers sufficient time to adjust to new 
requirements, thus further mitigating any adverse socio-economic 
impacts.
    NMFS also considered: (1) A no action alternative; (2)establishing 
larger minimum size limits for Atlantic blue and white marlin; (3) 
implementing a recreational bag limit of one Atlantic billfish per 
vessel per trip; and (4) allowing only catch-and-release fishing for 
Atlantic blue marlin. The no action alternative would maintain the 
current recreational minimum size measures that provide some limits on 
fishing mortality. The no action alternative would not address post-
release mortality of Atlantic billfish in the recreational fishery, 
which is now estimated to be significantly higher for white marlin than 
it was when Amendment 1 to the Atlantic Billfish FMP was published in 
1999.
    While providing some additional conservation benefit to these 
overfished species, the second alternative by itself would have limited 
ecological benefit because minimum size limits alone cannot directly 
address post-release mortality issues or directly limit effort. In 
addition, further reductions from the already low level of known 
domestic landings would provide only limited mortality benefits.
    The third alternative, while potentially restricting occasional 
landings of more than one billfish from a single trip, would provide 
only limited mortality reductions because bag limits cannot directly 
limit post-release mortality and fishing trips landing multiple 
billfish are rare events.
    The fourth alternative could provide some positive ecological 
benefits for Atlantic blue marlin, but could have noticeable adverse 
socio-economic impacts on fishery participants and associated shore 
side businesses.
    The suite of preferred gear and landings alternatives to reduce 
billfish mortality by the directed fishery are expected to achieve the 
goals and objectives of this rulemaking at this time. However, the non-
preferred alternatives may be considered in a future rulemaking, if 
necessary and appropriate.

3. Management Program Structure

    NMFS considered the alternatives described below in order to 
clarify existing regulations and improve management of Atlantic HMS. In 
and of themselves, many of these actions would have few ecological, 
social, and/or economic impacts. However, all should improve the 
management of Atlantic HMS.
A. Bluefin Tuna Quota Management
    The suite of management measures proposed at 50 CFR 635.27 for the 
management of BFT are not likely to have any ecological impacts. The 
quotas themselves are established by ICCAT, in accordance with the BFT 
20-year rebuilding plan. All of the alternatives considered, which 
modify how the quota is allocated among domestic fishermen, maintain 
the current ICCAT-recommended quota. These proposed small orders of 
change, quantified in either numbers of fish or in weight (metric 
tons), or time and/or location of harvest, compared to overall U.S. 
harvest levels, equate to ecological impacts that are unlikely to be 
measurable in terms of variability in the data used to conduct the BFT 
stock assessment. The goal of these alternatives is to clarify both the 
regulations and NMFS' responses to the inherent variability of the 
fishery in order to minimize any social or economic impacts. The 
management measures are split into three sections: time-periods and 
subquotas, annual quota allocations and effort controls, and inseason 
management.
i. Time-periods and Subquotas
    NMFS explored several possibilities for amending and/or clarifying 
the annual BFT subquota allocation schemes in both the General and 
Angling categories. Currently, using the ICCAT-recommended U.S. BFT 
TAC, NMFS divides the U.S. allocation into several domestic quota 
categories, which are then further subdivided into more finite 
temporal, geographic, and/or BFT size class categories to meet the 
objectives of the Magnuson-Stevens Act, ATCA, and the FMP. NMFS 
proposes to codify specific General category time-periods and 
associated subquotas (in percentage and whole weight) in the regulatory 
text. NMFS is proposing in this rule to codify the following time-
periods and subquota allocations: June - August, 50 percent (345 mt); 
September, 26.5 percent (182.8 mt); October - November, 13 percent 
(89.7 mt); December, 5.2 percent (35.9 mt); and January, 5.3 percent 
(36.5 mt). NMFS also proposes to clarify the procedures for calculating 
the Angling category school size-class BFT subquota allocation. 
Finally, NMFS is proposing to remove the north/south Angling category 
dividing line and the General Category New York Bight set-aside, which 
are not effective management tools at this time.
    These preferred alternatives enhance NMFS's ability to address the 
inherent variability in the BFT fishery. These alternatives also 
respond, in part, to the North Carolina Division of Marine Fisheries's 
(NCDMF) petition for rulemaking (November 18, 2002; 67 FR 69502) by 
proposing to allow for a General category winter BFT fishery while 
still recognizing the historical General category BFT allocation 
schemes.
    In addition to these preferred alternatives, NMFS considered 
maintaining the current time-periods, subquota allocations, and 
geographic set-asides for the General and Angling categories as 
established in the 1999 FMP (the no action alternative). This 
alternative hinders NMFS' ability to adapt BFT management measures to 
account for variations inherent in the fishery. Additionally, the 
current regulations do not allow for a winter BFT fishery in the South 
Atlantic region. The General Category New York Bight set-aside has not 
been used in the past several years. This geographic set-aside tends to 
complicate the subquota allocation of the General Category quota and 
creates the misperception that geographic set-asides are an effective 
management tool in a dynamic fishery. The recreational north/south line 
creates the perception that NMFS has the ability to use this management 
tool to provide fair and equitable recreational fishing opportunities. 
However, NMFS does not currently have the necessary real-time data for 
this to be an effective management tool.
    NMFS also considered an alternative that would establish the 
General category time-periods, subquotas, and geographic set-asides 
annually via framework action(s). This alternative would increase the 
administrative burden to implement the annual specifications prior to 
the start of the fishing year, and would not provide the

[[Page 48814]]

industry with the necessary stability to plan for the upcoming fishing 
year.
    Finally, NMFS considered three different alternatives for 
allocating the General category time-periods and subquota allocations. 
None of these alternatives were selected because the allocations did 
not adequately balance the need to preserve historical General category 
BFT allocations, to the extent practicable, while providing for a 
formalized winter BFT fishery in the South Atlantic.
ii. Annual Quota Allocations
    According to an ICCAT recommendation, if a Contracting Party 
exceeds the annual or biannual BFT quota, then the Contracting Party 
must reduce its catch to compensate for the overage. ICCAT eventually 
modified this recommendation to state that unused quota or an overage 
from the previous year shall be added or subtracted, as appropriate, to 
the current year's retainable catch. To maintain consistency with the 
ICCAT recommendations while streamlining the annual domestic BFT quota 
adjustment process, NMFS considered several alternatives.
    Under the preferred alternative, NMFS would modify the current 
procedures to calculate annual under- and overharvest adjustments so 
that the analysis of the baseline quota and subquotas occur only when 
ICCAT alters the recommended U.S. BFT TAC. Additionally, NMFS proposes 
to establish a carryover limit for each category equaling no more than 
100 percent of that category's baseline allocation for the individual 
quota category (i.e., no more than the baseline allocation would be 
allowed to roll from one year to the next), and to authorize the 
transfer of any category's quota that exceeds this limit to the Reserve 
category or another domestic quota category, while maintaining the 
status quo overharvest provisions. This preferred alternative would 
have positive ecological impacts by limiting the amount of unharvested 
quota that could be rolled from one year to the next. This alternative 
would minimize the impacts of stockpiling in any one category, and 
provide NMFS the flexibility to redistribute the overall quota 
available and to provide reasonable fishing opportunities to harvest 
the overall quota in the timeframe it was designated. Under these 
preferred alternatives, NMFS could provide the fishery with a stable 
baseline quota allocation on a timely basis from one year to the next; 
address under- and overharvests from the previous year; establish the 
General category effort controls and any recreational and commercial 
handgear daily retention limits for the upcoming season; enhance 
flexibility to adapt these management measure, if warranted; and 
streamline the annual rulemaking process. Additionally, implementing a 
cap on the amount of quota that can be carried over to the next fishing 
year would allow NMFS to manage the BFT harvest with more finite 
precision and minimize the occurrence of ``stockpiling'' in any one 
quota category.
    NMFS considered two other alternatives to modify the annual BFT 
management measures. Under the no action alternative, NMFS would 
continue to conduct a full analysis of the impacts of implementing the 
baseline quotas every year regardless of whether ICCAT recommended any 
changes to the BFT TAC. NMFS also considered eliminating the carryover 
provisions for unharvested quota where the unharvested quota would not 
be transferred to another category. Rather, that portion of the quota 
would remain unharvested. Under this alternative, the overharvest 
provisions would maintain the status quo.
iii. Inseason Management
    NMFS currently performs inseason management actions to adjust BFT 
management measures, such as daily retention limits, inseason quota 
transfers, and fishery closures/reopenings to the adapt to the changing 
conditions of each fishing season. Prior to making an inseason 
adjustment, NMFS must consider a set of criteria to ensure the actions 
comply with the objectives of the FMP. NMFS considered maintaining the 
existing inseason action procedures (no action alternative), which 
include analyzing different sets of criteria for each particular type 
of inseason action. Under the preferred alternative, NMFS would have a 
set of consistent criteria at 50 CFR 635.27(a)(8) to apply to all types 
of inseason actions for BFT. The proposed criteria are essentially the 
same as the current regulatory text at Sec. Sec.  635.27(a)(7) and 
635.28(a)(3) with some revision to eliminate overlapping 
considerations. This alternative would ensure reasonable fishing 
opportunities for all of the BFT fishery participants. Allowing for 
these opportunities is considered when establishing the baseline quota 
and should not have any additional ecological impacts. These criteria 
provide the necessary tools for meeting the draft HMS FMP's objectives 
in a consistent manner, while balancing the resource's needs with 
users' needs. Further, the criteria would allow NMFS to adapt 
management measures to the inherent variability in the fishery and to 
provide for maximum utilization of the BFT quota. The preferred 
alternative provides transparency and consistency in the conditions 
considered prior to taking action. Because there are several sets of 
criteria to consider before taking action, the no action alternative is 
not as transparent as the preferred alternative and could lead to 
inconsistencies in analysis between the types of inseason actions.
    NMFS also considered an alternative that would eliminate BFT 
inseason actions. While this alternative would simplify management, 
eliminating inseason actions would constrain NMFS's ability to adjust 
management actions due to fluctuations in catch rates and to prevent 
premature closures or overharvest of a domestic quota category. Because 
this type of variability or lack of variability is considered when 
setting the overall TAC, this alternative is unlikely to have any 
ecological impacts.
B. Timeframe for Annual Management of HMS Fisheries
    Many aspects of HMS management, including quota distributions and 
specifications, are implemented on an annual basis. This proposed rule 
considers three alternatives to modify the current management timeframe 
for HMS fisheries with the intent of simplifying the HMS management 
process. The no action alternative maintains the status quo, with 
sharks managed on a calendar year (January 1 - December 31) and tunas, 
swordfish, and billfish managed on a June 1 through May 31 fishing 
year. The preferred alternative would shift HMS management to a 
calendar year. A third alternative would shift all HMS fisheries to a 
June 1 - May 31 fishing year management cycle.
    Under the preferred alternative, the Atlantic shark management 
timeframe would remain as it currently is (calendar year), whereas 
tunas, swordfish, and billfish would shift from a June 1 - May 31 
fishing year to a calendar year. An abbreviated 2006 season from June 1 
through December 31, 2006, would be established to transition bluefin 
tuna and swordfish from a fishing year to a calendar year. The 
specifics of the abbreviated season for bluefin tuna and swordfish 
would be implemented under a future fishery specification process, as 
appropriate.
    The preferred alternative would simplify the regulatory process by 
managing all HMS fisheries on a calendar year. Currently, reports of 
U.S. landings are presented to ICCAT on a

[[Page 48815]]

calendar year basis while reports of quota under- and overharvests are 
analyzed on a fishing year basis. Thus, this alternative would simplify 
reports to international forums. Additionally, this alternative would 
strengthen our negotiating position during international compliance 
reviews by providing matching and transparent reports. While this 
alternative might cause some short-term confusion for fishermen who 
have adjusted to the June 1 to May 31 fishing year, in general this 
alternative is expected to simplify the management regime overall. When 
implemented in conjunction with the ICCAT landing limit for marlin, 
this alternative could shift potential negative impacts as a result of 
the ICCAT landing limit from the end of the fishing year (approximately 
May) to the end of the calendar year (approximately August through 
December). However, the likelihood of any impact is low because the 
ICCAT landing limit has rarely been reached.
    Under the no action alternative, Atlantic tunas, swordfish, and 
billfish would continue to be managed on a June 1 - May 31 fishing year 
timeframe, and Atlantic sharks would continue on a calendar year basis. 
This alternative was not selected as the preferred alternative because 
it does not meet the intent of simplifying HMS management.
    In addition, NMFS considered shifting all of the HMS fisheries to 
the June 1 - May 31 fishing year management timeframe. The management 
timeframe for Atlantic tunas, swordfish, and billfish would remain as 
is, whereas sharks would shift from the calendar year to the fishing 
year. This alternative is not preferred because it would not simplify 
international reporting and could cause short-term confusion in the 
shark fishery, which has operated on a calendar year basis since 1993.
C. Authorized Fishing Gears
    The revised list of authorized fisheries (LOF) and fishing gear 
used in the listed fisheries became effective on December 1, 1999 (64 
FR 67511). The rule applies to all U.S. marine fisheries, including 
Atlantic HMS. As stated in the rule, ``no person or vessel may employ 
fishing gear or participate in a fishery in the exclusive economic zone 
(EEZ) not included in this LOF without giving 90 days advance notice to 
the appropriate Fishery Management Council (Council) or, with respect 
to Atlantic HMS, the Secretary of Commerce (Secretary).'' The LOF is 
updated periodically and can be found at 50 CFR 600.725.
    Innovative fishing gears and techniques are essential to increasing 
efficiency and reducing bycatch in fisheries for Atlantic HMS. As 
current or traditional gears are modified and new gears are developed, 
NMFS needs to be cognizant of these advances to gauge their potential 
impacts on target catch rates, bycatch rates, and protected species 
interactions, all of which can have important management implications. 
New fishing gears and techniques need to be evaluated by NMFS for 
qualification as authorized gear types.
    In this rule, NMFS is proposing at 50 CFR 635.21(e) and (f) to 
authorize speargun fishing gear as a permissible gear-type in the 
recreational Atlantic tuna fishery, authorize green-stick fishing gear 
for the commercial harvest of bigeye, albacore, yellowfin, and skipjack 
(BAYS) tunas, authorize buoy gear in the swordfish handgear fishery, 
and clarify the allowance of hand-held cockpit gears.
    At the public hearings on the proposed list of authorized gears in 
the Atlantic tuna fisheries, no comments were received from 
spearfishermen and the regulations were made final without listing 
speargun fishing gear as an authorized fishing gear. Since 
implementation of the final rule, NMFS has received written requests 
and public comment requesting that NMFS authorize the use of speargun 
fishing gear in the Atlantic tuna fishery. The public comments suggest 
that relatively few individual fishermen compared to the number of 
existing angling permit holders (approximately 22,000) would be 
expected to use this gear type, and that spearfishermen expect low 
encounter rates with target species. Based on public comment and 
anecdotal information, NMFS anticipates that between 50 and 1,000 
individual U.S. fishermen may have an interest in using speargun 
fishing gear to target tunas. Relative to the current number of 
participants in the recreational Atlantic tuna fishery, and taking into 
account the estimated low encounter rates for target species, the 
additional anticipated effort from spearfishermen would likely result 
in minimal negative ecological impacts on Atlantic tunas.
    The authorization of speargun fishing gear in the recreational 
Atlantic tuna fishery would likely result in minor positive economic 
impacts. Under the preferred alternative, tunas taken with speargun 
fishing gear in the Angling category would not be eligible for sale. 
However, for consistency purposes, vessels that possess an Atlantic HMS 
charter/headboat (CHB) permit would be allowed to sell their 
recreational Atlantic tunas, except for BFT, while on a for-hire trip, 
provided they do not exceed the daily recreational retention limits for 
any BAYS tunas and abide by sale restrictions as outlined in 50 CFR 
635.31. Regardless of whether CHB fishermen are operating in a for-hire 
or non-for-hire manner, BFT harvested by speargun fishing gear may not 
be sold. The CHB sector may experience some positive economic impacts 
as spearfishermen may increase their use of for-hire vessels, 
increasing revenues to those vessels. Prohibiting the sale of BFT taken 
with spearfishing gear from CHB vessels could result in some perceived 
negative social and economic impacts. However, this activity is not 
currently allowed under existing regulations, therefore no additional 
adverse social or economic are anticipated for the CHB sector. 
Additionally, the authorization of spearfishing gear could increase the 
club-nature or camaraderie associated with spearfishing and may result 
in positive social impacts.
    NMFS is proposing at 50 CFR 635.21(e) to authorize green-stick 
fishing gear for the commercial harvest of Atlantic BAYS tunas. 
Commercial vessels utilizing or possessing green-stick gear would be 
prohibited from possessing or retaining BFT. There is a potential for 
increases in landings of other Atlantic HMS, but NMFS cannot quantify 
anticipated landings for this gear, at this time, due to the limited 
amount of landings information available. However, because this gear 
has been used in the HMS fisheries for several years but classified as 
longline (due to the number of hooks involved) or handgear (due to the 
use of rod and reel), authorizing this gear type would likely not 
result in increased effort, landings, or landing rates. The 
authorization of green-stick gear may result in positive social and 
economic impacts for those fishermen who wish to employ the gear to 
target BAYS tunas commercially. This gear type is fairly selective for 
BAYS tunas because of the fishing technique. As such, the gear is 
unlikely to interact with any sea turtles or other protected species. 
An increase in BAYS tuna landings could provide positive economic 
impacts to fishermen as well as benefits for fish houses, gear supply 
houses, and other associated businesses. Some commercial tuna fishermen 
utilizing green-stick gear may experience negative social and economic 
impacts due to the prohibition on the possession or retention of BFT, 
however, since available data indicate that few BFT have been reported 
captured using this gear type, NMFS anticipates that any negative 
impacts would likely be minor.

[[Page 48816]]

Vessels using green-stick gear and fishing under the General category 
would continue to be subject to the General category regulations (such 
as size limits), while vessels with pelagic longline (PLL) gear onboard 
would be subject to all current PLL regulations, including gear 
restrictions (such as circle hooks) and closed areas.
    NMFS is also proposing to authorize buoy gear in the commercial 
swordfish handgear fishery, as reflected in proposed regulatory changes 
to 50 CFR 600.725(v), 635.2, and 635.21(e)(4). Under current 
regulations, the swordfish handgear fishery may utilize individual 
handlines attached to free-floating buoys. This rule proposes to 
require that handlines used in HMS fisheries be attached to a vessel 
(see Regulatory Housekeeping Measures below). Further, this rule 
proposes to change the definition of individual free-floating buoyed 
lines, that are currently considered to be handlines, to ``buoy gear,'' 
allowing the commercial swordfish handgear fishery to continue 
utilizing this gear type. This rule would also limit the number of 
buoys that can be deployed to 35 buoys per vessel and require that each 
buoy have fixed monitoring equipment such as radar reflectors, beeper 
devices, lights, or reflective tape with a spotlight on the vessel in 
order to facilitate finding the gear. This preferred alternative would 
likely continue affording positive social and economic benefits to 
current fishery participants. Currently, a maximum of 282 permit 
holders (93 swordfish handgear and 189 swordfish directed) would be 
authorized to utilize this gear type to target swordfish. This 
alternative could result in perceived negative social impacts by 
recreational fishermen by continuing to allow commercial swordfish 
fishing in areas closed to HMS pelagic longline gear.
    Additionally, NMFS is preferring an alternative to clarify the use 
of secondary hand-held cockpit gears at 50 CFR 635.21(b) and (e). These 
gears may include, but are not limited to, dart harpoons, gaffs, flying 
gaffs, tail ropes, etc., and are used at boat side for subduing HMS 
captured on authorized primary fishing gears. In recent years, NMFS has 
become aware of some confusion regarding the allowable use of hand-held 
cockpit gears. In 50 CFR 635.21(e), NMFS lists the authorized primary 
fishing gear types that Atlantic HMS permit holders are allowed to use, 
based on the species being targeted and the permit category of the 
particular vessel. It is NMFS' intent to authorize only the primary 
fishing gear types used to harvest HMS, meaning the gears used to bring 
an HMS to the vessel. This alternative would clarify that secondary 
gears could be used to subdue HMS after they are brought to the vessel 
using a primary gear type. Under this proposed action, cockpit gears 
would not be allowed to be used in any way to capture free-swimming 
HMS, but only to gain control of HMS brought to the vessel via an 
authorized primary fishing gear type.
    In addition to a no action alternative, NMFS also considered 
alternatives to authorize speargun fishing gear as a permissible gear-
type in both the commercial tuna handgear and the recreational Atlantic 
tuna fisheries, and to authorize buoy gear in the commercial swordfish 
handgear fishery and limit vessels to possessing and deploying no more 
than 50 buoys with each buoy having no more than 15 hooks or gangions 
attached. NMFS did not prefer authorizing speargun fishing gear in the 
commercial tuna handgear fishery because, according to feedback 
received from HMS Advisory Panel (AP) members and the estimated low 
encounter rates, NMFS does not believe the commercial handgear sector 
would utilize this gear type. NMFS did not prefer the authorization of 
buoy gear with limits of 50 buoys possessed or deployed and up to 15 
hooks or gangions attached to each gear because of potential negative 
ecological and social impacts such as lost gear.
D. Regulatory Housekeeping Measures
    The proposed actions referred to as ``regulatory housekeeping 
measures'' include several minor revisions to existing regulatory text 
and 11 substantive actions. The minor revisions include: minor and 
nonsubstantive clarifications to reporting, permitting, and vessel 
upgrading requirements; and removal of duplicative reporting 
requirements, obsolete cross-references, and expired regulations. Also, 
the title of the ``Northeast Distant closed area'' is proposed to be 
changed to the ``Northeast Distant gear restricted area'' to reflect 
recent regulatory actions. See Section 2.3.4.1 of the draft HMS FMP for 
a table describing these minor revisions. In addition, NMFS is 
proposing a change to 50 CFR 635.4(f)(1) to include a rebuttable 
presumption that a vessel that possesses swordfish in excess of 
recreational retention limits intends to sell the swordfish. This 
change would make Sec.  635.4(f)(1) consistent with shark provisions at 
Sec.  635.4(e)(2), and shift the burden of proof to the vessel to show 
compliance with applicable regulations. This change would facilitate 
enforcement and would not impose any additional economic impacts on 
fishermen. As all of the above changes are minor technical additions, 
corrections, or changes to existing regulations, per the NOAA 
Administrative Order 216-6, they are categorically excluded from the 
requirement to prepare and Environmental Assessment or EIS.
    For the 11 more substantive proposed measures, alternatives have 
been developed and analyzed. Several of these alternatives would not 
implement new regulatory requirements and include: (1) a clarification 
that the sale or purchase of HMS in excess of current retention limits 
is prohibited; (2) a correction to a coordinate specified for the East 
Florida Coast closed area that would extend it 1.02 km (0.55 nm) 
eastward to the outer boundary of the EEZ to match with the list of 
coordinates given; (3) a measure to reinforce and clarify the 
recreational nature of the billfish fishery by prohibiting vessels 
issued commercial permits from possessing billfish; (4) a measure to 
provide an option for Atlantic tunas dealers, who engage in both 
domestic and international trade of HMS (see 50 CFR part 300 subpart M 
and 50 CFR part 635), to submit required BFT reports using the Internet 
once a system is designed and put in place; (5) a clarification of the 
deadlines for submitting ``no-fishing'' and ``cost-earnings'' reporting 
forms; (6) a clarification that vessel owners, not anglers, must report 
non-tournament recreational swordfish and billfish landings; and (7) a 
clarification to the procedure for specifying the annual 25 mt 
northeast distant (NED) BFT PLL allocation. The preferred alternatives 
described above are expected to produce minimal positive ecological 
impacts, with no significant adverse social or economic impacts. 
Extending the East Florida Coast closed area by 1.20 km (0.55 nm) is 
not expected to impact fishing effort, as vessels will likely relocate 
to nearby areas with similar catch rates. In summary, these 
alternatives are preferred over the no action alternatives because they 
would improve compliance by reinforcing and clarifying existing 
regulations and facilitate modernized reporting procedures. Unlike the 
above alternatives, several regulatory housekeeping measures would 
implement new regulations and are discussed in more detail below.
    The HMS time/area closures currently in effect apply specifically 
to either PLL or bottom longline (BLL) gear. Therefore, it is optimal 
for the two gear types to be clearly differentiable to determine 
compliance with the applicable restrictions. NMFS has developed 
alternatives to amend the

[[Page 48817]]

definitions for pelagic and bottom longlines, or establish additional 
restrictions on these gears when fishing in the time/area closures. The 
preferred alternatives would limit the amount of floats and pelagic 
species that may be possessed on BLL vessels when fishing in PLL closed 
areas. Similarly, the preferred alternatives set a minimum number of 
floats and limit the amount of demersal species that PLL vessels may 
possess when fishing in BLL closed areas. The preferred alternatives 
are not expected to create significant adverse economic and social 
impacts. Both limits (float numbers and species composition) were 
chosen because they are consistent with the vast majority of commercial 
fishing operations. There may be some minor adverse economic impacts on 
vessels that deploy unusual numbers of floats or that fish for both 
pelagic and demersal species on the same trip, but those are expected 
to be rare occurrences. The preferred alternatives would improve 
monitoring and compliance with HMS closed area regulations. Thus, the 
ecological benefits associated with HMS closed areas are expected to 
remain intact or be strengthened. An alternative to require time/depth 
recorders on longlines was not preferred because it would impose larger 
negative social and economic impacts than the preferred alternatives, 
and would require precise information on longline location and water 
depth to determine compliance. An alternative to close areas to both 
types of gear would have the largest ecological benefits, not 
considering redistribution of effort, but it could also impose the 
largest adverse social and economic impacts.
    Species identification of sharks can be enhanced by the presence of 
fins. NMFS considered alternatives to amend the regulations governing 
commercial shark landings to facilitate shark identification for 
enforcement and data collection purposes. The preferred alternative 
would require that the second dorsal and anal fins remain on all sharks 
through landing. Although this alternative could have some minor 
economic and social impacts, it is expected to have ecological benefits 
and, in the long-term, aid in rebuilding the large coastal shark 
population. NMFS also considered an alternative that would require 
these fins to remain on all sharks, except for lemon and nurse sharks, 
through landing. This alternative would have similar economic and 
social impacts as described above, but could confuse the issue of 
identification because fishermen could remove all fins from a shark log 
and, incorrectly, report the shark as a nurse or lemon shark. If 
fishermen were to do this, the alternative might have adverse 
ecological impacts compared with the no action or the preferred 
alternative. Another alternative was considered that would require the 
retention of all fins on all sharks through landing. This alternative 
would have the largest ecological benefits but could also have fairly 
large adverse economic and social impacts. Therefore, it was not 
preferred.
    Currently, handlines are not required to be attached to, or in 
contact with, vessels. As a result, some vessel operators have been 
deploying numerous unattached handlines. This practice may circumvent 
the original ``concept'' of handline gear and could potentially result 
in an unintended increase in fishing effort. NMFS is preferring an 
alternative that would require that handlines be attached to, or in 
contact with, vessels. However, as described under Authorized Fishing 
Gears (above), NMFS prefers an alternative that would define unattached 
handlines as ``buoy gear,'' and authorize their use in the commercial 
swordfish handgear fishery. As a result, the preferred alternative in 
this section would primarily impact recreational fishermen and 
commercial fishermen that do not possess a directed commercial 
swordfish permit. There are no data indicating the prevalence of this 
practice, but public comment suggests that the use of unattached 
handlines may be increasing in the recreational sector. Therefore, this 
alternative could create some minor adverse social impacts on the 
recreational sector. Because fish caught recreationally cannot be sold, 
no direct adverse economic impacts are expected. However, some 
unquantifiable level of adverse economic impacts could be realized by 
charter vessels and gear suppliers. This alternative could produce 
ecological benefits by preventing uncontrolled expansion of the 
recreational handline fishery. The no action alternative was not 
preferred because it would not address the potential expansion of the 
handline fishery.
    Currently, vessels fishing recreationally for sharks, swordfish, 
billfish, and tunas (in some states) are able to fish under state 
regulations while in state waters, and under Federal regulations when 
in Federal waters. This has been problematic for NMFS, and has caused 
confusion on behalf of anglers, due to the differences between state 
and Federal regulations and the inability to verify whether a fish was 
caught in state or Federal waters. Thus, NMFS is preferring an 
alternative that would require recreational vessels with an HMS 
Angling, HMS Charter/Headboat (on a for-hire trip), or Atlantic Tunas 
General Category (participating in a registered HMS tournament) Federal 
permit to abide by Federal regulations as a condition of their permit, 
regardless of where they are fishing, unless a state has more 
restrictive regulations. Such a permit condition is already in place 
for commercial shark and swordfish Federal permit holders under 50 CFR 
635.4(a)(10). This alternative is expected to facilitate improved 
management of HMS and result in less confusion on behalf of fishermen 
and improved compliance. Compared with the no action alternative, the 
preferred alternative would produce greater ecological benefits with 
few resulting adverse social and economic impacts. However, the few HMS 
anglers who generally fish in states with less restrictive regulations 
would notice some adverse social impacts due to the more restrictive 
Federal regulations.

4. EFH Update

    EFH guidance that published on January 17, 2002 (67 FR 2343), 
requires NMFS to periodically review and update the EFH provisions, as 
warranted, based on the best scientific information available. The EFH 
regulations further require NMFS to review all EFH information at least 
once every five years. EFH, including habitat areas of particular 
concern (HAPCs), for HMS were identified in the 1999 Atlantic Tunas, 
Swordfish, and Shark FMP (and its Amendment) and the 1999 Amendment 1 
to the Billfish FMP. This draft HMS FMP continues the comprehensive 
five-year review of EFH for all HMS. This process began with the 
release of the Issues and Options Paper (April 30, 2004, 69 FR 23730). 
The purpose of the EFH review is to gather any new information and 
determine whether modifications to existing EFH descriptions and 
boundaries are warranted. While NMFS has presented new information 
relative to HMS EFH in the annual SAFE reports and Amendment 1 to the 
1999 FMP, this is the first comprehensive look at all new information 
related to HMS EFH.
    NMFS does not intend to modify any of the existing EFH descriptions 
or boundaries in this draft HMS FMP. Rather, NMFS is presenting new EFH 
information and data collected since 1999 and is requesting public 
comment on any additional data or information that may need to be 
included in the five-year review. Based on an assessment of the data 
collected thus far, NMFS has made a preliminary determination that 
modifying existing EFH for some HMS

[[Page 48818]]

may be warranted. Any modifications to existing EFH descriptions and 
boundaries would be addressed in a subsequent rulemaking. In order to 
consolidate EFH descriptions and maps previously provided in separate 
documents, all of the EFH descriptions and maps from the 1999 FMP, 
Amendment 1 to the 1999 FMP, and Amendment 1 to the Billfish FMP are 
provided in the draft HMS FMP. These maps include data acquired through 
the review process, and can be reviewed by the public to comment on the 
need for any additional information to be considered.
    Additionally, NMFS is required to identify fishing and non-fishing 
activities that may adversely affect EFH. Each FMP must include an 
evaluation of the potential adverse impacts of fishing on EFH, 
including the effects of each fishing activity regulated under the FMP, 
other Federal FMPs, and non-federally managed fishing activities (i.e., 
state fisheries). FMPs must describe each fishing activity and review 
and discuss all available relevant information such as the intensity, 
extent, and frequency of any adverse effects on EFH; the type of 
habitat within EFH that may be adversely affected; and the habitat 
functions that may be disturbed (50 CFR 600.815(a)(2)). If adverse 
effects of fishing activities are identified, the Magnuson-Stevens Act 
requires that these effects on EFH are minimized to the extent 
practicable and alternative measures be identified to minimize these 
effects encouraging the conservation and enhancement of EFH (Magnuson-
Stevens Act; 16 U.S.C. 1853 section 303(a)(7)).
    NMFS completed the original analysis of fishing and non-fishing 
impacts in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks and 
the 1999 Amendment 1 to the Billfish FMP, and is presenting information 
gathered during the five-year review, including all fishing and non-
fishing impacts, in the draft HMS FMP. A considerable amount of new 
information is available regarding gear impacts that have been 
incorporated into this review. For example, new information presented 
in the 2004 Gulf of Mexico Fishery Management Council final 
environmental impact statement for EFH suggests the bottom longline 
gear may have an adverse effect on coral reef habitat, which serves as 
EFH for certain reef fishes. As a result, NMFS has made a preliminary 
determination that some HMS gears, such as bottom longline, may have an 
adverse effect on EFH for other Federal and non-federally managed 
species. An assessment of such gears and an evaluation of any potential 
measures to minimize such impacts would be addressed in a subsequent 
rulemaking.

Withdrawal of Proposed Rule (68 FR 54410, September 17, 2003)

    NMFS published a proposed rule (September 17, 2003, 68 FR 54410) 
to: establish an annual domestic recreational landing limit of 250 
Atlantic blue and white marlin, combined; establish procedures to carry 
forward overharvest and underharvest of the Atlantic marlin between 
management periods; and clarify regulations specifying that the owner 
of a vessel participating in the Atlantic HMS Angling or CHB category 
be required to report recreational landings of Atlantic bluefin tuna, 
billfish, and swordfish. The intent of that proposed rule was to comply 
with ICCAT recommendations, improve the management and conservation of 
Atlantic HMS, and establish consistent HMS recreational reporting 
requirements to facilitate enforcement. The proposed rule was not 
finalized due to a need to review the methodology for calculating 
recreational marlin landings. As discussed above, the issues to be 
addressed in that rule are being addressed in this current action. NMFS 
is continuing to review various methodologies to identify the most 
appropriate approach for estimating recreational marlin landings. NMFS 
will provide updates on this review as new information becomes 
available.
    Accordingly, for the reasons stated above, the proposed rule that 
was published in the Federal Register on September 17, 2003 (68 FR 
54410)is withdrawn as of August 18, 2005.

Request for Comments

    NMFS is requesting comments on any of the alternatives or analyses 
described in this proposed rule and in the draft HMS FMP. NMFS is also 
requesting comments on specific items related to those alternatives to 
clarify certain sections of the regulatory text or in analyzing 
potential impacts of the alternatives. Specifically, NMFS requests 
comments on the costs of outfitting a commercial vessel with green-
stick gear. NMFS also requests comments on proxy designations for the 
HMS identification workshops. Specifically, NMFS would like to know 
who, if anyone, would be appropriate to act as a proxy for a shark 
dealer and what types of characteristics such a proxy should have. In 
order to better differentiate between pelagic and bottom longline gear 
in HMS closed areas, NMFS is proposing limitations on the number of 
fishing floats that may be possessed or deployed from longline vessels. 
Examples of such fishing floats include bullet floats, poly balls, high 
flyers, and lobster pot buoys. NMFS is specifically seeking comments on 
this list to determine if it is complete and/or accurate and if a 
definition of ``fishing floats'' in the final rule for this action is 
warranted. If a definition is warranted, NMFS is requesting comments on 
potential language for such a definition. NMFS is also specifically 
asking for comments regarding whether or not the indicator species 
proposed to be listed at 50 CFR part 635 in tables 2 and 3 of Appendix 
A are appropriate.
    Finally, NMFS is interested in hearing comments from the 
recreational fishery specifically for the proposed billfish measures. 
NMFS is proposing to implement the ICCAT recommended landing limit for 
marlin. As such, NMFS would establish the flexibility to perform 
inseason actions to reduce catch rates of billfish, if warranted. NMFS 
is specifically asking for comments regarding whether or not a minimum 
of five days is an appropriate amount of time to notify billfish 
fishery participants about inseason changes to minimum sizes and 
possession limits should an inseason action be necessary. NMFS is also 
proposing to require circle hooks with natural and natural/artificial 
bait combinations at billfish tournaments while still allowing J hooks 
with artificial bait. NMFS heard during scoping that fishermen use J 
hooks to troll for blue marlin and that trolling for blue marlin with 
circle hooks would greatly reduce blue marlin catches. NMFS is 
requesting comment on this proposed requirement of circle versus J 
hooks in billfish tournaments, the current fishing practices, and 
impacts on tournaments. Additionally, NMFS is proposing the catch-and-
release of white marlin from 2007 through 2011. NMFS is specifically 
requesting comments on the impacts of the proposed catch-and-release of 
white marlin provision on tournaments.
    Comments may be submitted via writing, email, fax, or phone (see 
ADDRESSES). Comments may also be submitted at a public hearing (see 
Public Hearings and Special Accommodations below). All comments must be 
submitted no later than 5 p.m. on October 18, 2005.

Public Hearings and Special Accommodations

    As listed in the table below, NMFS will hold 24 public hearings to 
receive comments from fishery participants and other members of the 
public regarding

[[Page 48819]]

this proposed rule and the draft HMS FMP. These hearings will be 
physically accessible to people with disabilities. Requests for sign 
language interpretation or other auxiliary aids should be directed to 
Heather Stirratt at (301) 713-2347 at least 5 days prior to the hearing 
date. NMFS also tentatively anticipates holding a meeting of the HMS 
and Billfish Advisory Panels on October 11, 12, and 13, 2005, in Silver 
Spring, Maryland. The actual dates and location will be announced in a 
future Federal Register notice.

------------------------------------------------------------------------
   Date          Time          Location                Address
------------------------------------------------------------------------
9/6/05      5:30-8:30 p.m.  New Bedford,    New Bedford Library, 613
                             MA              Pleasant St., New Bedford,
                                             MA 02740
------------------------------------------------------------------------
9/6/05      7-10 p.m.       Orange Beach,   Orange Beach Senior Center,
                             AL              26251 Canal Rd., Orange
                                             Beach, AL 36561
------------------------------------------------------------------------
9/7/05      7-10 p.m.       Narragansett,   Narragansett Town Hall, 25
                             RI              5\th\ Ave., Narragansett,
                                             RI 02882
------------------------------------------------------------------------
9/7/05      7-10 p.m.       Port Aransas,   University of Texas Marine
                             TX              Science Institute Visitor's
                                             Center (located on Cotter
                                             St. near beach), 750
                                             Channel View Dr., Port
                                             Aransas, TX 78373
------------------------------------------------------------------------
9/8/05      7-10 p.m.       New Orleans,    VIET Community Center, 4655
                             LA              Michoud Boulevard, Suite
                                             17, New Orleans, LA 70129
------------------------------------------------------------------------
9/8/05      7-10 p.m.       Portland, ME    Howard Johnson Plaza, 155
                                             Riverside Street/I-95,
                                             Portland, ME, 04103
------------------------------------------------------------------------
9/13/05     7-10 p.m.       West Islip, NY  West Islip Public Library, 3
                                             Higbie Ln., West Islip, NY
                                             11795
------------------------------------------------------------------------
9/14/05     7-10 p.m.       Montauk, NY     Montauk Fire House, 12
                                             Flamingo Avenue, Montauk,
                                             NY 11954
------------------------------------------------------------------------
9/15/05     6-9 p.m.        Gloucester, MA  Gloucester Lyceum and Sawyer
                                             Free Library, 2 Dale Ave.,
                                             Gloucester, MA 01930
------------------------------------------------------------------------
9/20/05     7-10 p.m.       Fort Pierce,    Fort Pierce Library, 101
                             FL              Melody Ln., Fort Pierce, FL
------------------------------------------------------------------------
9/21/05     7-10 p.m.       Key West, FL    Doubletree Grand Key Resort,
                                             3990 S. Roosevelt Blvd.,
                                             Key West, FL 33040
------------------------------------------------------------------------
9/22/05     7-10 p.m.       St. Thomas,     Frenchman's Reef & Morning
                             USVI            Star, St. Thomas, USVI
                                             00801
------------------------------------------------------------------------
9/26/05     7-10 p.m.       Virginia        Virginia Beach Pavilion
                             Beach, VA       Convention Center, 1000
                                             19th Street, Virginia
                                             Beach, VA 23451-5674
------------------------------------------------------------------------
9/28/05     7-10 p.m.       Charleston, SC  CCEHBR Jane's Island, 219
                                             Fort Johnson Rd.,
                                             Charleston, SC 29412
------------------------------------------------------------------------
9/28/05     7-10 p.m.       Ocean City, MD  North Side Parks and Rec,
                                             200 125\th\ St., Ocean
                                             City, MD 21842
------------------------------------------------------------------------
9/29/05     7-10 p.m.       Villas, NJ      Cape May Township Hall, 2600
                                             Bayshore Road, Villas, NJ
                                             082511
------------------------------------------------------------------------
9/29/05     7-10 p.m.       Manteo, NC      North Carolina Aquarium
                                             Roanoke Island, PO Box 967,
                                             Airport Road, Manteo, NC
                                             27954
------------------------------------------------------------------------
10/3/05     6:30-9 p.m.     Fort            African American Arts and
                             Lauderdale,     Cultural Center Research
                             FL              Library, 2650 Sistrunk
                                             Blvd., Fort Lauderdale, FL
                                             33311
------------------------------------------------------------------------
10/3/05     7-10 p.m.       Mayaguez, PR    Mayaguez Resort and Casino,
                                             Road 104 km 0.3, Barrio
                                             Algarrobo, Mayaguez PR
                                             00681
------------------------------------------------------------------------
10/4/05     7-10 p.m.       Panama City,    NMFS Panama City Laboratory,
                             FL              3500 Delwood Beach Rd.,
                                             Panama City, FL 32408
------------------------------------------------------------------------
10/4/05     5:30-8:30 p.m.  San Juan, PR    Carnegie Library (Biblioteca
                                             Carnegie), Ponce De Leon
                                             Ave. 7, San Juan,
                                             Puerto Rico 00901
------------------------------------------------------------------------
10/5/05     7-10 p.m.       Madeira Beach,  City of Madeira Beach, 300
                             FL              Municipal Dr., Madeira
                                             Beach, FL 33708
------------------------------------------------------------------------
10/6/05     7-10 p.m.       Atlantic        City of Atlantic Beach,
                             Beach, FL       Atlantic Beach City
                                             Chambers, 800 Seminole Rd.,
                                             Atlantic Beach, FL 32233
------------------------------------------------------------------------
10/6/05     7-9 p.m.        Barnegat        Barnegat Light First Aid
                             Light, NJ       Squad, West 10th Street,
                                             Barnegat Light, NJ 08006
------------------------------------------------------------------------

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. At this time, NMFS has 
preliminarily determined that the proposed rule and related draft HMS 
FMP are consistent with the national standards of the Magnuson-

[[Page 48820]]

Stevens Act, other provisions of the Act, and other applicable laws.
    NMFS prepared a DEIS for the draft HMS FMP that discusses the 
impact on the environment as a result of this rule. A summary of the 
impacts of each alternative on the environment is provided above. A 
copy of the DEIS is available from NMFS (see ADDRESSES). The 
Environmental Protection Agency is expected to publish the notice of 
availability for this DEIS on or about the same date that this proposed 
rule publishes.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has prepared an initial regulatory flexibility analysis (IRFA) 
as required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained in 
the SUPPLEMENTARY INFORMATION section of this proposed rule. A summary 
of the analysis follows. A copy of the full IRFA is available (see 
ADDRESSES).
    NMFS considers all permit holders to be small entities as reflected 
in the Small Business Administration's (SBA) size standards for fishing 
entities (5 U.S.C. 603(b)(3)). All permit holders are considered to be 
small entities because they either had gross receipts less than $3.5 
million for fish-harvesting, gross receipts less than $6.0 million for 
charter/party boats, or 100 or fewer employees for wholesale dealers. 
These are the SBA size standard for defining a small versus large 
business entity in this industry. A full description of the fisheries 
affected, the categories and number of permit holders, and registered 
tournaments can be found in the draft HMS FMP.
    The alternatives considered for requiring attendance at workshops 
on protected species release, disentanglement, and identification for 
pelagic longline, bottom longline, and gillnet owners and operators are 
estimated to apply to 576 vessels permitted to fish for HMS with 
longline gear and 20 shark gillnet vessels. The alternatives for shark 
identification workshops would impact approximately 230 federally 
permitted shark dealers. Other alternatives considered, but not 
preferred, for species identification could apply to up to 980 shark, 
swordfish, and tuna dealers; 10,022 HMS commercial vessel owners; and 
21,735 HMS angling permit holders.
    The preferred time/area closure alternatives to implement 
complementary Madison-Swanson and Steamboat Lumps closures would apply 
to 576 pelagic and bottom longline permitted vessels, but would likely 
only impact one pelagic longline and two bottom longline sets based on 
past observer and logbook data. This preferred alternative would also 
apply to 4,029 permitted HMS charter/headboat businesses and 21,735 HMS 
angling permit holders. However, the impacts to charter/headboat 
businesses and recreational fishermen are not expected to be 
substantial since this alternative includes a seasonal surface trolling 
allowance. In addition, many of these business have already been 
impacted by the previously implemented Madison-Swanson and Steamboat 
Lumps closures established by the GMFMC, and therefore are not likely 
to face further economic impacts as a result of the proposed 
complimentary HMS closure in the same area. Other non-preferred time/
area closure alternatives would apply to 576 permitted pelagic and 
bottom longline vessels primarily. The approximate number of vessels 
impacted by these different alternatives varies from as few as 20 to as 
many as all 177 active longline vessels (See Chapters 4 and 6 of the 
draft HMS FMP for the specific number of vessels estimated to be 
impacted by each time/area closure considered).
    The preferred alternative considered for northern albacore 
management, which would establish the foundation for developing an 
international rebuilding program through ICCAT, would apply to all tuna 
categories, a total of 31,308 permit holders. However, the proposed 
alternative does not have any direct impacts on small entities in the 
short term because it does not require any changes to direct management 
measures at this time.
    The preferred alternative for finetooth sharks also would not have 
any direct impacts on small entities but could affect 20 commercial 
vessels and potentially some of the 21,735 HMS angling permit holders. 
The non-preferred commercial management alternative, however, would 
apply to the estimated 20 shark gillnet vessels that are permitted and 
could apply to all commercial shark permit holders depending on what 
the management measures would be. The non-preferred recreational 
management alternative would apply to the 21,735 HMS angling permit 
holders; however, a small percentage of these recreational anglers 
target small coastal sharks or finetooth sharks.
    All the alternatives considered regarding the directed Atlantic 
billfish fishery would apply to 21,735 Angling, 4,029 CHB, and up to 
5,267 valid General (those participating in tournaments) category 
permits. In addition, there are currently 215 registered HMS 
tournaments that would be impacted by the proposed Atlantic billfish 
alternatives.
    The alternatives being considered for bluefin tuna management for 
time-periods and subquota allocations would primarily apply to the 
5,267 General category tuna permit holders. However, other bluefin tuna 
alternatives to streamline management processes would apply to all tuna 
categories, a total of 31,308 permit holders.
    The alternatives that consider changing the timeframe for annual 
management of HMS fisheries from a fishing year to a calendar year 
would essentially apply to all HMS permit holders and tournament 
registrants. Under the preferred alternative, only the shark fishery 
would not be impacted by the shift in annual management timeframe 
because it is already managed on a calendar year basis at this time.
    Several alternatives allowing or defining authorized fishing gears 
would apply to small entities. The proposed authorization of 
recreational speargun fishing for Atlantic tunas would apply to an 
unknown number of speargun users. This preferred alternative may also 
positively impact the 4,029 CHB permit holders by potentially 
increasing charter revenues, and it may negatively impact the current 
21,735 Angling category permit holders due to potential increases in 
competition for the BFT Angling category quota. The non-preferred 
alternative to allow speargun in both recreational and commercial tuna 
fisheries would also apply directly to the 5,267 General category and 
4,029 CHB permit holders. In addition, the preferred alternative that 
authorizes green-stick gear for the commercial harvest of Atlantic BAYS 
tunas would apply to the Atlantic Tunas Longline, General, and CHB (on 
non for-hire trips) category vessels, approximately 221, 5,267, and 
4,029 vessels respectively. The alternatives that address the 
utilization of handlines would apply to 282 permit holders (93 
swordfish handgear and 189 swordfish directed). The preferred 
alternative clarifying the authorized use of secondary cockpit gears 
would apply to all HMS permit holders.
    Finally, a variety of regulatory housekeeping proposals would apply 
to small entities. Specifically, the preferred changes to the 
definitions of pelagic and bottom longline would apply to the 576 
permitted pelagic and bottom longline vessels. The preferred 
alternative

[[Page 48821]]

requiring smaller second dorsal and anal fins would need to remain 
attached to the shark would apply to the 229 directed shark and 321 
incident shark permit holders. The proposed HMS retention limit 
requirements would apply to the 540 permitted shark and swordfish 
dealers and the 365 permitted Atlantic tuna dealers. The change in the 
definition of the East Florida Coast Closed Area is unlikely to 
directly impact any small entities but could affect any commercial 
permit holders fishing in that area. The preferred alternative 
prohibiting the retention of Atlantic billfish by vessels issued 
commercial permits or outside of a tournament would apply to General 
category, bottom longline, and shark gillnet vessels utilizing rod and 
real gear, but it is unlikely that many would be impacted by this 
proposed regulation. The preferred alternative to amend the HMS 
regulations to provide an option for Atlantic tunas dealers to submit 
required BFT reports using the Internet would apply to the 364 Atlantic 
tuna permit dealer holders. The preferred alternative requiring vessel 
owners to report non-tournament recreational landings of North Atlantic 
swordfish and Atlantic billfish would apply to 4,029 CHB permit holders 
and 21,735 Angling permit holders, but it is not expected that this 
proposal would impact many entities. Finally, the preferred alternative 
requiring recreational vessels with a Federal permit to abide by 
Federal regulations, regardless of where they are fishing, would 
potentially apply to 21,735 Angling, 4,029 CHB, and up to 5,267 valid 
General (those participating in tournaments) category permits.
    Other sectors of the HMS fisheries such as dealers, processors, 
bait houses, and gear manufacturers, some of which are considered small 
entities, might be indirectly affected by the proposed alternatives, 
particularly time/area closures, Atlantic billfish, and authorized 
fishing gear alternatives. However, the proposed rule does not apply 
directly to them, unless otherwise noted above. Rather, it applies only 
to permit holders and fishermen.
    None of the preferred alternatives in this document would result in 
additional reporting, recordkeeping, and compliance requirements that 
would require new Paperwork Reduction Act filings. However, some of the 
preferred alternatives could modify existing reporting and 
recordkeeping requirements (5 U.S.C. 603(b)(4)). These include 
workshops, coordination efforts directed at gathering additional 
information about finetooth shark mortality, and bluefin tuna dealer 
reporting.
    The preferred alternatives for workshops would require 
recordkeeping by NMFS to record attendance at workshops and the 
certification status of pelagic and bottom longline vessel owners and 
operators, as well as shark gillnet owners and operators. Small 
entities would need to keep their own certificates and may decide also 
to keep copies of certificates for their own records. Attending 
workshops would also be a change in compliance.
    In addition, the finetooth shark preferred alternative may expand 
the coverage of the current HMS observer programs. In addition, this 
preferred alternative would result in efforts to expand data that are 
currently collected by NMFS observers on shrimp trawl vessels to 
include finetooth shark and other HMS species of interest. Fishermen 
themselves would not need to change reporting.
    Finally, under regulatory housekeeping, the preferred alternative 
to allow bluefin tuna dealers the option to report electronically once 
a system is developed and is made available would modify current 
reporting requirement, but would not result in additional reporting or 
burden. In fact, this option may reduce the potential need to report 
the same data on multiple reports for those some small entities that 
chose this option.
    In addition to the reporting and recordkeeping requirements of the 
preferred alternatives, there are also proposed compliance requirements 
associated with the preferred alternatives. These compliance 
requirement include limiting billfish tournament participants to using 
only non-offset circle hooks when using natural baits or natural bait/
artificial lure combinations, requiring the retention of shark second 
dorsal and anal fins, and establishing the minimum and maximum number 
of floats for bottom longline and pelagic longline gear definitions.
    The other preferred alternatives would change quota allocations, 
timeframes, authorized fishing gear types, definitions, and other 
management measures, but would not likely change reporting or 
compliance in the fishery.
    Fishermen, charter/headboat operators, dealers, and managers in 
these fisheries must comply with a number of international agreements, 
domestic laws, other FMPs, and Take Reduction Plans (TRPs). Other FMPs 
could include Dolphin-Wahoo, Coastal Migratory Pelagics, and Snapper-
Grouper Reef Fish. Domestic laws include, but are not limited to, the 
Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas 
Fishing Compliance Act, the Marine Mammal Protection Act, the 
Endangered Species Act, the National Environmental Policy Act, the 
Paperwork Reduction Act, and the Coastal Zone Management Act. TRPs 
affecting the HMS Fisheries include Atlantic Large Whale, Bottlenose 
Dolphin, and Pelagic Longline plans. NMFS strives to ensure consistency 
among the regulations with fishery management councils and other 
relevant agencies. NMFS does not believe that the new regulations 
proposed to be implemented would conflict with any relevant 
regulations, Federal or otherwise (5 U.S.C. 603(b)(5)).
    The proposed HMS Madison-Swanson and Steamboat Lumps time/area 
closure overlaps with the geographic area covered by the GMFMC 
regulations that also implement a time/area closure in this area. 
However, the GMFMC's regulations do not cover HMS permitted gear types. 
Therefore, the proposed HMS Madison-Swanson time/area closure 
regulation that affects vessels utilizing HMS gear types complements 
the GMFMC regulation and would help with compliance and enforcement of 
this time/area closure by backstopping the GMFMC's regulations to cover 
all federally regulated gear types.
    The proposed Federal HMS permit condition requiring Federal permit 
holders participating in recreational trips to abide by Federal 
regulations in state waters, unless the state has more restrictive 
regulations, could overlap and/or duplicate State regulations. However, 
this proposed regulation would not overlap, duplicate, and/or conflict 
with any other Federal regulations and may reduce conflict with state 
regulations.
    One of the requirements of an IRFA is to describe any alternatives 
to the proposed rule which accomplish the stated objectives and which 
minimize any significant economic impacts. These impacts are discussed 
below and in Chapters 4 and 6 of the draft HMS FMP. Additionally, the 
Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four general 
categories of ``significant'' alternatives that would assist an agency 
in the development of significant alternatives. These categories of 
alternatives are: (1) Establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) Clarification, 
consolidation, or simplification of compliance and reporting 
requirements under the rule

[[Page 48822]]

for such small entities; (3) Use of performance rather than design 
standards; and (4) Exemptions from coverage of the rule for small 
entities.
    As noted earlier, NMFS considers all permit holders to be small 
entities. In order to meet the objectives of this proposed FMP and the 
statutes (i.e., Magnuson-Stevens Act, ATCA, ESA) as well as address the 
management concerns at hand, NMFS cannot exempt small entities or 
change the reporting requirements for small entities. Among other 
things, this proposed FMP would set quotas for the fishing season, 
retention limits for the recreational fishery, and gear restrictions, 
all of which would not be as effective with differing compliance and 
reporting requirements. Thus, there are no alternatives discussed which 
fall under the first and fourth categories described above. 
Alternatives under the second and third categories are discussed below 
with the alternatives that were considered but not preferred.
    As described below, NMFS considered a number of alternatives that 
could minimize the economic impact on small entities, particularly 
those pertaining to workshops, time/area closures, northern albacore 
tuna, finetooth sharks, Atlantic billfish, bluefin tuna quota 
management, timeframe for annual management, authorized fishing gears, 
and regulatory housekeeping measures.
    The preferred alternatives for longline release, disentanglement 
and identification workshops, which require mandatory workshops and 
certification on a three-year renewal timeline for all owners and 
operators of HMS vessels that use longline and gillnet gear, were 
designed to minimize the economic impacts on fishermen, while 
simultaneously complying with 2003 BiOp and the post-release mortality 
targets for protected resources established in the June 2004 BiOp. 
Requiring vessel owners to attend the workshops is estimated to have an 
economic impact to each bottom and pelagic longline vessel owner of up 
to $565 and $504 in potentially lost revenue share based on 2003 
logbook data, as well as unquantified travel costs to attend a 
workshop. The aggregate economic impact is estimated to be between 
$290,304 and $325,440 in the first year. Longline vessel operators 
would also be impacted by the preferred alternative, but it might not 
impact the economic well-being of the small business for which they 
work. In addition, the estimated twenty owners of vessels that use 
gillnet gear and have a Federal shark permit would each have an 
economic impact of up to $508 in lost revenue share based on 2003 
logbook data, as well as unquantified travel costs to attend a 
workshop.
    Specifically, under these alternatives, NMFS would strive to host a 
number of workshops in regional fishing hubs in order to minimize 
travel and lost fishing time. Besides the costs of travel and lost 
time, there would be no additional costs for workshop participants. 
NMFS would attempt to hold workshops during periods when the fishery is 
typically inactive, effectively minimizing lost fishing time. To 
minimize the overall economic cost of these workshops, the preferred 
alternatives would limit required participation in these workshops to 
owners and operators. It is likely that owners and operators would pass 
information and appropriate direction to their crew concerning release, 
disentanglement, and identification of protected resources. NMFS would 
also select a recertification period that would allow for sufficient 
retraining to maintain proficiency and update fishermen on new research 
and development related to the subject matter while not placing an 
excessive economic burden on the participants due to lost fishing time 
and travel resulting from attending a recertification workshop in 
person. Two, three, and five year recertification period are being 
considered, with a three-year period currently being preferred. In 
addition, to lower the costs of recertification, NMFS is considering 
the use of alternative sources of media including CD-ROM, DVDs, or web-
based media that would not result in travel costs or lost fishing time, 
as well as allowing private certified trainers to provide training at 
tailored times and locations to minimize any costs.
    Other alternatives considered were voluntary workshops for longline 
fishermen and mandatory workshops that would include crew in addition 
to owners and operators. Several alternatives would have less onerous 
economic impacts to small businesses relative to the preferred 
alternatives. These include: the no action alternative and mandatory 
workshops for only owners or only operators. These alternatives would 
not satisfy reasonable and prudent alternative under the June 2004 BiOp 
issued pursuant to ESA.
    The preferred alternative for identification workshops, which would 
require mandatory workshops for all federally permitted shark dealers, 
is preferred because species-specific identification of offloaded shark 
carcasses is much more difficult than other HMS as evidenced by the 
large proportion of ``unclassified'' sharks listed on shark dealer 
logbooks. The Agency would attempt to minimize economic impacts to 
shark dealers by holding workshops at fishing ports to minimize travel 
costs and during non-peak fishing times to minimize perturbations to 
business activity, to the extent possible. Similar measures as those 
being considered for disentanglement and identification recertification 
are being considered for the identification workshops for shark dealers 
in order to minimize the economic impacts caused by this measure.
    Other alternatives in addition to the no action alternative were 
voluntary HMS identification workshops, mandatory identification 
workshops for swordfish and tuna dealers, mandatory identification 
workshops for all commercial longline vessel owners and operators, 
mandatory identification workshops for all commercial vessel (longline, 
CHB, General category, and handgear/harpoon) owners and operators, and 
mandatory identification workshops for all HMS Angling permit holders. 
The economic impacts of these alternatives are detailed in the draft 
HMS FMP. The no action and voluntary HMS identification workshop 
alternatives would have less onerous economic impacts relative to the 
preferred alternative. However, these alternatives would not address 
the persistent problems with species-specific shark identification in 
dealer reports.
    In addition to the type of workshops, NMFS considered two 
additional renewal timetables of two and five years. A renewal 
timetable of five years would have a less adverse impact than the 
proposed timetable of three years. However, recertification every five 
years for bycatch release and disentanglement workshops would allow a 
more extensive period of time to lapse between certification workshops 
than necessary to maintain proficiency and provide updates on research 
and development of handling and dehooking protocols. In a similar 
fashion, recertification every five years for HMS identification 
workshops would also allow a more extensive period of time to lapse 
between certification workshops than necessary to maintain proficiency 
in species identification.
    The preferred alternatives for time/area closures, which would 
implement complementary measures in Madison-Swanson and Steamboat Lumps 
closures and establish criteria to be considered when implementing new 
time/area closures or making modifications to existing time/area 
closures, were designed to minimize

[[Page 48823]]

economic impacts incurred by fishermen, while simultaneously reducing 
the bycatch of non-target HMS and protected species such as sea turtles 
in Atlantic HMS fisheries. Complementary HMS regulations in the 
Madison-Swanson and Steamboat Lumps closures would have minimal 
economic impacts as from 1997 to 2003, only one pelagic longline set 
and two bottom longline sets were reported in these areas. All three 
sets occurred in the Madison-Swanson site. Four swordfish were kept on 
the pelagic longline set, and eight swordfish were discarded. There 
were no reported HMS caught on the two bottom longline sets. 
Recreational and charter/headboat fishing trips for HMS in the proposed 
marine reserves are not likely to be significantly curtailed due to the 
allowance for surface trolling from May through October, which are the 
prime fishing months. Creating these complementary HMS regulations 
would consolidate and simplify requirements for fishermen, and 
therefore simplify compliance. This alternative would also implement 
compatible regulations that would provide for a seasonal allowance (May 
- October) for surface trolling to partially alleviate any negative 
economic impacts associated with the closures or the HMS recreational 
and charter/headboat sector.
    Other alternatives considered in addition to the no action 
alternative were a closure of 11,191 nm\2\ in the central Gulf of 
Mexico to pelagic longline gear, a closure of 2,251 nm\2\ in the 
Northeast to pelagic longline gear, a closure of 101,670 nm\2\ in the 
Gulf of Mexico, a closure west of 86[deg] W. Longitude in the Gulf of 
Mexico to pelagic longline gear, a closure of 46,956 nm\2\ in the 
Northeast to pelagic longline gear, a prohibition on the use of bottom 
longline gear in an area off the Florida Keys to protect endangered 
smalltooth sawfish, and a prohibition on the use of pelagic longline 
gear in HMS fisheries in all areas. These closure alternatives were not 
preferred due to large economic impacts with conflicting ecological 
benefits between species. Without redistribution of effort, potential 
economic impacts ranged from a decline in gross fishery revenues of 
$299,120 to $25.8 million annually. With redistribution of effort, 
gross fishery revenues ranged from a decline of $820,132 to an increase 
of $6.0 million annually. These estimates of gross revenues lost or 
gained did not take into account additional costs that may be incurred 
as a result of relocating to new fishing grounds. The details of the 
economic impacts associated with these other alternatives are detailed 
in the draft HMS FMP. In addition to the closure alternatives, 
modifications to existing closures were also considered for the 
Charleston Bump closure and the Northeastern U.S. closure that provided 
some economic relief but did not meet ecological needs.
    The preferred alternative to establish criteria would guide future 
decision-making regarding implementation or modification of time/area 
closures. This would provide enhanced transparency, predictability, and 
understanding of HMS management decisions. The time/area closure 
criteria would not have immediate impacts. Any ecological, social, or 
economic impacts of a specific closure or modified closure would be 
analyzed in the future when that specific action is proposed.
    The alternative based on the petition from Blue Ocean Institute et 
al. would potentially impact a total of 75 vessels that fished in the 
area from 2001 - 2003. Without redistribution of effort, this 
alternative would potentially result in a 13.4 percent decrease in 
fishing effort, and reductions in landings ranging from a minimum of 
0.2 percent for bigeye tuna (kept) to a maximum of 29.0 percent for 
incidentally caught bluefin tuna (kept). The total loss in revenue for 
this alternative, assuming no redistribution of effort, would be 
approximately $3,136,229 annually, or $49,003 per vessel annually. With 
redistribution of fishing effort, the alternative is predicted to 
result in a decrease in bluefin and yellowfin tuna landings of 18.3 and 
11.0 percent, respectively, for estimated losses of approximately 
$166,040 and $1,382,042 annually. However, overall, there could be a 
net gain in revenues for this alternative with redistribution of effort 
of approximately $1,651,023 annually, or $25,797 per vessel annually, 
primarily due to a predicted increase in swordfish landings as a result 
of effort being displaced into the Atlantic. Bigeye tuna landings are 
also predicted to increase as a result of displaced effort. The actual 
ecological and social impacts of the alternative would likely be in 
between the redistribution and no redistribution models. Due to the 
potential negative ecological impacts, negative economic impacts, and 
the increase in bluefin tuna discards, NMFS is not preferring this 
alternative at this time.
    The preferred alternative for northern albacore tuna management, 
which would establish the foundation for developing an international 
rebuilding program, was designed to address rebuilding of the northern 
albacore tuna fishery while simultaneously minimizing economic impacts 
incurred by fishermen. This alternative would have minimal economic 
impacts, because it is not proposing additional restrictions at this 
time. Even under an international plan, the United States is a small 
participant in this fishery and only has a small allocation that it 
does not even fully harvest at this time.
    Other alternatives considered were no action and taking unilateral 
proportional reductions in northern albacore tuna harvest. Taking 
unilateral action to address northern albacore tuna on the part of the 
United States would likely not be effective in rebuilding the stock 
because the United States is a small participant in this fishery, and 
would have larger economic impacts than the preferred alternative 
because the rebuilding onus would fall on U.S. fishermen rather than 
being spread among all fishermen catching northern Albacore tuna.
    The no action alternative would have the same economic impacts as 
the preferred alternative because NMFS has been promoting an 
international rebuilding plan at ICCAT. In a prior rulemaking, NMFS 
addressed the same northern albacore tuna alternatives but did not 
incorporate them into the HMS FMP. The no action alternative is 
rejected, because it would not include the rebuilding strategy in the 
FMP.
    The preferred alternative for finetooth shark management was 
designed to address overfishing while minimizing economic impacts 
incurred by fishermen. This alternative would be expected to have 
minimal to no economic impacts, because no new restrictions are being 
proposed at this time. However, fishermen would be required to provide 
information to the observers. Long-term, the alternative would have 
positive ecological impacts by addressing finetooth mortality in HMS 
and other fisheries and positive economic impacts if the fishery is 
sustained.
    Other alternatives considered were no action, a range of commercial 
management measures, and a range of recreational management measures. 
The range of commercial management measures could potentially include 
any combination of: a directed trip limit for SCS, gillnet gear 
restrictions, prohibiting the use of gillnet gear for landing sharks, 
reduced soak time for gillnets, and reducing the overall SCS quota. The 
range of recreational management measures could potentially include 
requiring the use of circle hooks when targeting SCS and/or increasing 
the minimum size for retention of finetooth sharks. Only the no action 
alternative would have less economic

[[Page 48824]]

impact relative to the preferred alternative. However, this alternative 
was not preferred because it would not facilitate efforts to address 
overfishing of finetooth sharks.
    The preferred alternatives for Atlantic billfish management, which 
include requiring the use of non-offset circle hooks when using natural 
baits in tournaments, implementing the ICCAT marlin landings limits, 
and allowing only catch-and-release fishing for Atlantic white marlin 
from 2007-2011 were designed to minimize economic impacts incurred by 
recreational fishing sector, while simultaneously enhancing the 
management of the directed Atlantic billfish fishery. Specifically, 
requiring circle hooks would likely have a minimal economic impact, 
since it would not affect all billfish recreational anglers, only 
tournament participants. Therefore, the impacts on hook manufactures, 
retailers, and anglers would likely be limited given that J-hooks would 
continue to be permitted outside of tournaments and within tournaments 
with artificial lures. In addition, delayed implementation to 2007 
would help lower any potential economic impacts due to supply and 
demand changes. Impacts on tournaments would also likely be minimal, 
given the increase in the number of tournaments that provide special 
award categories or additional points for billfish captured and 
released on circle hooks. This alternative would also likely have high 
compliance rates given the self-policing that is likely to occur among 
tournament participants competing for prizes, as well as the increasing 
use of tournament observers.
    Several measures were also considered to minimize the economic 
impacts of implementing the ICCAT landing limit. The use of three 
separate levels of management measures based upon marlin landing 
thresholds diminishes the economic impacts of this alternative. When it 
is not expected that marlin landings will approach the threshold for 
action, then no in-season actions would occur and there would not be 
any economic impacts. If the threshold for action were achieved, 
minimum size requirements for Atlantic marlins would increase to a 
level sufficient to curtail landings. Finally, if the ICCAT landing 
limits were achieved in any one year, the fishery would shift to a 
catch-and-release only fishery for the remainder of that year. This 
last scenario would be unlikely given historical landings and minimum 
size requirements that would occur at the action threshold. This 
alternative would allow the response to be tailored to the needs of a 
given fishing year to ensure maximum utilization of the ICCAT landing 
limit. Under the calendar year management alternative that is currently 
preferred, implementing the ICCAT landing limit also would help reduce 
any disproportionate economic impacts to CHB operators, tournaments, 
and anglers who fish for marlin late in the fishing year or in late 
season tournaments by providing anglers the greatest opportunity to 
land marlin over the entire length of the fishing year. This 
alternative is estimated to potentially result in $1.3 to $2.7 million 
in economic impacts as compared to the $13.4 to $20.0 million in 
impacts for catch-and-release only for Atlantic blue and white marlin 
resulting in an estimated one to two tournament cancellations and 
unquantified impacts on CHB businesses.
    Catch-and-release of white marlin could result in some potential 
economic impacts. Any negative impacts would likely be reduced if 
vessels targeting white marlin already practice catch-and-release 
fishing and participate in catch-and-release tournaments. To mitigate 
negative socioeconomic impacts, NMFS would delay implementation of 
catch-and-release-only fishing requirements to allow the fishery time 
to adjust to new measures, and includes a sunset provision five years 
from implementation of catch-and-release requirements. NMFS estimates 
that this alternative could result in between $70 thousand and $1.2 
million in lost revenues to CHB vessels and $1.3 to $5.5 million in 
negative economic impacts (in comparison to $13.4 to $18.8 million for 
an alternative of catch-and-release only for Atlantic blue marlin) 
resulting from potentially cancelled HMS tournament cancellations.
    Other alternatives considered were no action, limiting all 
participants in the Atlantic HMS recreational fishery to using only 
non-offset circle hooks when using natural baits or natural bait/
artificial lure combinations in all HMS fisheries, increasing the 
minimum size limit for Atlantic white and/or blue marlin, implementing 
recreational bag limits of one Atlantic billfish per vessel per trip, 
and allowing only catch-and-release fishing for Atlantic blue marlin. 
Only the no action alternative would have less onerous economic impacts 
relative to the preferred alternatives. However, the no action 
alternative would not satisfy the requirements and goals of 
implementing the ICCAT recommendations under ATCA and furthering 
rebuilding of Atlantic blue and white marlin under the Magnuson-Stevens 
Act, or the objectives of the FMP.
    The preferred alternatives for bluefin tuna quota management 
include revised General category time-periods and subquotas to allow 
for a formalized winter fishery, clarified procedures for calculating 
the Angling category school size-class subquota allocation, 
modification of the bluefin tuna specification process and streamlining 
annual under/overharvest procedures, an individual quota category 
carryover limit and authorization of the transfer of quota exceeding 
limit, and revised and consolidated criteria that would be considered 
prior to performing a BFT inseason action. These preferred alternatives 
were designed to minimize economic impacts incurred by fishermen, while 
simultaneously enhancing and clarifying bluefin tuna quota management 
and inseason actions.
    Revising the General category time-periods and subquotas would 
strike a balance between providing consistent quota allocations and 
having the flexibility to amend them in a timely fashion. This 
alternative would slightly reduce General category quota from early 
time periods, thereby allowing for a formal winter General category 
bluefin tuna fishery to take place during the months of December and 
January, and therefore would increase regional access. By shifting the 
allocated quota from the June through August time-period, which has an 
overall higher allocation, to a later time-period any adverse impacts 
would be mitigated by the increased revenue generated in the later 
time-period. In addition, the fishermen from the Northeast are not 
precluded from fishing in southern areas during winter bluefin tuna 
season.
    Clarifying the procedures that NMFS uses in calculating the ICCAT 
recommendation regarding the eight percent tolerance for BFT under 115 
cm would simplify the regulations; this alternative would also remove 
the north/south dividing line that separates the Angling category. Due 
to the lack of real-time data currently, the north/south dividing line 
has not been effective in recent years, and therefore it would be 
removed under this preferred alternative. This alternative is not 
likely to have an economic impact.
    Eliminating the need to allocate each domestic quota categories' 
baseline allocation each year would have positive economic impacts to 
the domestic BFT fishery as a whole by allowing BFT fishery 
participants, either commercial or recreational in nature, to make 
better informed decisions on how to best establish a business plan for 
the upcoming season.

[[Page 48825]]

    Limiting the annual carryover for each category would have some 
economic impacts as a result of limiting the amount of underharvest of 
the bluefin tuna quota that could be rolled over from one year to the 
next within a category. However, this alternative was designed to 
mitigate any impacts by allowing NMFS to redistribute quota exceeding 
the proposed 100 percent rollover cap to the Reserve or to other 
domestic quota categories, provided the redistributions are consistent 
with ICCAT recommendations and the redistribution criteria.
    Consolidating the criteria to make inseason actions would result in 
slightly more positive economic impacts as the regulations would be 
consistent regardless of what type of inseason action is being 
considered. This would minimize confusion and provide additional 
transparency to the management process.
    Other alternatives considered in addition to the no action 
alternatives were establishing General category time-periods, 
subquotas, and geographic set asides annually via framework actions; 
establishing monthly General category time-periods and subquotas; 
revising the General category time-periods and subquotas to allow for a 
formalized winter fishery with different time-period allocations; 
eliminating the underharvest quota carryover provisions, and 
eliminating the BFT inseason actions. These additional alternatives 
would not likely reduce overall impacts to the fishery as a whole 
further relative to the preferred alternatives.
    The preferred alternative for the timeframe for annual management 
of HMS fisheries, which would shift the time frame to a calendar year 
(January 1 to December 31), was designed to minimize economic impacts 
on HMS fisheries and simplify HMS fishery management and reporting to 
ICCAT. This alternative would not impact the shark fishery, since that 
fishery is already operating under a calendar year. The shift in the 
other HMS fisheries' timeframe for annual management would establish 
consistent timing between U.S. domestic and international management 
programs, reducing the complexity of U.S. reports to ICCAT and creating 
more transparent analyses in the U.S. National Report. Setting an 
annual quota and other fishery specifications on a multi-year basis for 
bluefin tuna as discussed above could mitigate any potential negative 
impacts associated with reduced business planning periods that may 
result from a calendar year timeframe. The flexibility established in 
the preferred alternatives for billfish could partially mitigate any 
negative regional economic impacts to marlin tournaments, charters, and 
other related recreational fishing businesses. To facilitate the 
transition to a calendar year management timeframe for bluefin tuna and 
swordfish, the 2006 fishing year would be abbreviated from June 1, 
2006, through December 31, 2006, which could provide slightly higher 
quotas during that time period and slight positive impacts for 
fishermen. The specifics of this abbreviated season would be 
implemented under a separate action.
    Other alternatives considered were to maintain the current fishing 
year and to shift the fishing year to June 1 - May 31 for all HMS 
species. These alternatives are not likely to result in economic 
impacts substantially different than the preferred alternative; 
however, they would not meet the objectives of this action.
    The preferred alternatives for authorized fishing gears, which 
would authorize speargun fishing in the recreational Atlantic tuna 
fishery, authorize green-stick gear for the commercial harvest of 
Atlantic BAYS tunas, authorize buoy gear for the commercial swordfish 
fishery, and clarify the allowance of hand-held cockpit gear, were 
designed to reduce the economic impacts to fishermen and even enhance 
economic opportunities in recreational and commercial fishing. 
Specifically, allowing speargun gear would enhance economic 
opportunities in the tuna recreational fishery by including a new 
authorized class of recreational fishing, speargun fishing.
    Specifically authorizing green-stick gear would clarify current 
requirements. This gear is currently being utilized, however, there is 
uncertainty under current regulations as to whether this gear type is 
authorized. The preferred alternative would eliminate this uncertainty 
and enhance economic opportunities by authorizing this gear type.
    The swordfish handgear fishery may currently utilize individual 
handlines attached to free-floating buoys, however, a preferred 
alternative would require that handlines used in HMS fisheries be 
attached to a vessel. This alternative would change the definition of 
individual free-floating buoyed lines, that are currently considered to 
be handlines, to ``buoy gear,'' allowing the commercial swordfish 
handgear fishery to continue utilizing this gear type. This alternative 
would explicitly authorize buoy gear but limit vessels to possessing 
and deploying no more than 35 individual buoys with each having no more 
than two hooks or gangions attached. The economic impact of this 
alternative would likely be minimal, since the upper limit on the 
number of buoys is based on information obtained about the fishery 
though public comment, and based on what NMFS has identified as the 
manageable upper limit for the commercial sector.
    Finally, NMFS is also preferring an alternative that would likely 
reduce confusion over the allowable use of secondary cockpit gears to 
subdue HMS captured on authorized fishing gears. The use of these 
secondary gears might result in positive economic benefits from 
anticipated increases in retention rates.
    Other alternatives considered in addition to no action were to 
authorize speargun in both the commercial tuna handgear and 
recreational tuna fisheries and authorizing buoy gear in the commercial 
swordfish handgear fishery with 50 buoys with 14 hooks each. None of 
the non-preferred alternatives would have less economic impacts than 
the preferred alternatives.
    The preferred alternatives for regulatory housekeeping items were 
designed to minimize economic impacts, while also clarifying regulatory 
definitions and requirements, facilitating species identification, and 
enhancing regulatory compliance.
    The preferred alternatives that differentiate between BLL and PLL 
gear by using the number of floats and the species composition of catch 
landed would more clearly define the difference between BLL and PLL 
gear using a combination of gear configuration and performance 
standards based on the composition of catch landed. This would clarify 
the difference between these two gear types and enhance compliance with 
time/area closures that place restrictions on these two gear types. 
There could be some, but likely limited, economic impacts to vessels 
that may currently fish in gear restricted time/areas closures that do 
not conform to the proposed BLL and PLL gear specifications and 
performance standards. This performance based standard could adversely 
impact those longline vessels that regularly target both demersal and 
pelagic species on the same trip. Other alternatives considered in 
addition to the no action alternative were to require time/depth 
recorders on all HMS longlines and base closures on all longline 
vessels. Only the no action alternative could have less onerous 
economic impacts relative to the preferred alternatives. However, the 
no action alternative would not address NMFS' concerns with 
differentiating

[[Page 48826]]

between bottom and pelagic longline gear.
    The preferred alternative for shark identification, which would 
require that the second dorsal fin and anal fin remain attached on all 
sharks, addresses issues associated with shark species identification, 
but would be flexible enough to still allow fishermen to remove the 
most valuable fins in order to minimize the economic impacts of this 
alternative. Fishermen could experience, in the short-term, some 
adverse economic impacts associated with lower revenues associated with 
keeping the second dorsal and anal fins on sharks. Other alternatives 
considered in addition to the no action alternative were to require the 
dorsal and anal fin on all sharks except lemon and nurse sharks and to 
require all fins on all sharks be retained. Some alternatives could 
have less economic impacts relative to the preferred alternative. These 
include the no action alternative and the alternative requiring the 
dorsal and anal fin on all sharks except lemon and nurse sharks. These 
alternatives, however, would not satisfy enforcement and species 
identification needs.
    The preferred alternatives that prohibit the purchase or sale of 
HMS from vessels in excess of retention limits would enhance compliance 
with current regulations by consolidating the requirement for both 
vessels and dealers. These alternatives would have minimal economic 
impact on dealers and vessels following the current retention limits. 
The only additional alternative considered was no action, which would 
have less economic impact than the preferred alternatives but would not 
satisfy the enforcement or monitoring objectives.
    The preferred alternative that would amend the Florida East Coast 
closed area would clarify the regulations regarding this closed area 
and make them consistent with the boundary of the EEZ. The only 
additional alternative considered was no action. Neither alternative is 
expected to have any economic impact since fishing activity is likely 
to be limited in this small area.
    The preferred alternative that would amend the definition of 
handline gear to require that they be attached to a vessel, would 
clarify the definition of handline. The economic impact of this new 
definition would be minimal since unattached handline gear would be 
defined as ``buoy gear.'' Other alternatives considered were no action 
and to require handlines be attached to recreational vessels only. 
These two alternatives could have less economic impacts relative to the 
preferred alternative, but they would not meet the ecological 
objectives of this document.
    The preferred alternative that prohibits commercial vessels from 
retaining billfish would not have any economic impacts because current 
regulations do not allow these vessels to sell the billfish that are 
landed. This alternative would clarify and consolidate the requirements 
for commercial vessels to make them consistent with the regulations 
prohibiting vessel with pelagic longline gear from retaining billfish. 
The only other alternative considered was no action, which could have 
less social impacts than the preferred alternative but it would not 
satisfy ecological needs of rebuilding billfish stocks.
    The preferred alternative that allows Atlantic tuna dealers to 
submit reports using the Internet, would simplify reporting and 
potentially reduce costs. The other alternatives considered were no 
action and providing BFT dealers the option to report online (with 
specific exceptions) would not result in less economic burden than the 
preferred alternative.
    The preferred alternatives that require the submission of no 
fishing and cost-earnings reporting forms would clarify current 
regulations and potentially enhance compliance. The other alternative 
considered was no action; that alternative would not meet NMFS' 
objectives to collect quality data to manage the fishery. Neither 
alternative is expected to have any economic impacts.
    The preferred alternative that requires vessel owners to report 
non-tournament recreational landings would clarify and simplify the 
reporting process by codifying the current prevalent practice of 
recreational landings being reported by vessel owners versus individual 
anglers. The other alternative considered, no action, might result in 
less economic burden to small businesses but would not satisfy the goal 
of improving reporting or other objectives of the FMP.
    NMFS also prefers and alternative that clarifies current regulatory 
language regarding the roll-over of unharvested quota from the NED 
pursuant to an ICCAT recommendation. Other alternatives considered 
include no action and further discussions at ICCAT. There could be 
potential economic impacts associated with these two alternatives, if 
current regulatory text is misinterpreted as capping the set aside 
quota at 25 metric tons versus allocating 25 metric tons of BFT each 
year per the ICCAT recommendation. Retaining the current regulatory 
text under either alternative would not reflect the intent of the ICCAT 
recommendation.
    Finally, the preferred alternative that requires recreational 
vessels with a Federal permit to abide by Federal regulations 
regardless of where they are fishing would standardize compliance with 
HMS regulations for vessels possessing a federal HMS permit. This would 
likely simplify compliance with regulations, except in cases where a 
state has more restrictive regulations. The other alternative 
considered was no action, which could have marginally less economic 
impact than the preferred alternative, but it would not result in 
simplified compliance with regulations, and therefore would not meet 
the objectives of the FMP.
    There are currently three BiOps issued under the ESA for HMS 
fisheries: a June 2001 BiOp for the non-pelagic longline and non-shark 
HMS fisheries; an October 2003 BiOp for the HMS shark fisheries; and a 
June 2004 BiOp for the HMS pelagic longline fishery. As described in 
the draft HMS FMP, none of the preferred alternatives are expected to 
alter fishing practices, techniques, or effort in any way that would 
increase interactions with protected species or marine mammals. The 
preferred workshop alternatives implement requirements of both the 
October 2003 and June 2004 BiOps, and should reduce the post-release 
mortality of any protected species that are caught. The time/area 
closure preferred alternatives would provide a framework to consider 
impacts on protected species before implementing or modifying any time/
area closures. Implementing the closed areas, consistent with the GMFMC 
regulations, is not expected to alter HMS fishing effort or practices 
because the areas are so small and are of minor importance to HMS 
fishermen. The preferred alternatives for finetooth and northern 
albacore tuna are not expected to have any impact at this time would 
not impose new requirements of changes, at this time, to the fishery. 
To some extent, the use of circle hooks in billfish tournaments may 
reduce sea turtle interactions and mortalities in the recreational 
fishery; however, because the recreational fishery interacts with so 
few sea turtles, this alternative is not expected to have a significant 
impact. Similarly, the other preferred alternatives for reducing 
billfish fishing mortality for the directed recreational fishery are 
not expected to have any impact on protected species. The preferred 
alternatives for BFT management provide NMFS with additional 
flexibility to manage the BFT fishery. To the extent individual 
category quotas would be limited under

[[Page 48827]]

the preferred alternative (there is no limit under the no action 
alternative), the BFT preferred alternatives could have some minimal 
positive impact on protected species. The preferred alternative for the 
fishing year is not expected to alter fishing effort or practices 
because the fisheries themselves already operate year-round. If the 
250-marlin landing limit is approached and the minimize size on marlin 
is increased, tournaments scheduled for later in the fishing year could 
be impacted in terms of effort. However, this is unlikely to impact 
protected species given the small number of interactions with 
recreational gear. The preferred alternatives for authorized gear could 
change some fishing practices by allowing fishermen to use spearguns, 
green-stick, and buoy gear. However, it is unlikely that a speargun 
fisherman would mistake a sea turtle or other protected species for a 
tuna. Thus, NMFS does not expect that gear type to increase protected 
species or marine mammal interactions. In addition, both green-stick 
and buoy gear have been used in HMS fisheries (incorrectly classified 
as handline, handgear, or longline); this proposed rule would merely 
clarify the use of the gear and establish additional restrictions and 
regulations. In the case of buoy gear, this rule essentially renames an 
existing gear type (handline) for the commercial swordfish fishery. 
Furthermore, NMFS is proposing to require handlines to be attached to 
the vessel. While this may not reduce interactions with protected 
species (interactions in the handline fishery currently are minimal), 
it would reduce any mortality and prevent expansion of the fishery. 
Thus, NMFS does not expect protected species or marine mammal 
interactions to increase as a result of these changes to fishing gears. 
NMFS is changing the coordinates of the Florida East Coast closed area 
to ensure it matches the U.S. EEZ coordinates. Because the change is 
minor (approximately 1 km), NMFS does not expect this to change the 
number of protected species interactions. NMFS is also proposing a 
number of clarifications to the regulations; these clarifications are 
mainly administrative in nature and should not impact fishing effort or 
practices.

List of Subjects

50 CFR Part 300
    Fisheries, Foreign relations, Reporting and recordkeeping 
requirements, Treaties.
50 CFR Part 600
    Fisheries, Fishing, Fishing vessels, Foreign relations, Penalties, 
Reporting and recordkeeping requirements.
50 CFR Part 635
    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: August 5, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 300, 600, and 
635 are proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart M--International Trade Documentation and Tracking Programs 
for Highly Migratory Species

    1. The authority citation for subpart M continues to read as 
follows:

    Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 U.S.C. 1801 et 
seq.
    2. In Sec.  300.182, paragraph (d) is revised to read as follows:


Sec.  300.182  HMS international trade permit.

* * * * *
    (d) Duration. Any permit issued under this section is valid for the 
period specified on it, unless suspended or revoked.
* * * * *
    3. In Sec.  300.185, paragraphs (b)(3) and (c)(3) are revised to 
read as follows:


Sec.  300.185  Documentation, reporting and recordkeeping requirements 
for statistical documents and re-export certificates.

* * * * *
    (b) * * *
    (3) Reporting requirements. A permit holder must ensure that the 
original statistical document, as completed under paragraph (b)(2) of 
this section, accompanies the export of such products to their export 
destination. A copy of the statistical document must be postmarked and 
mailed by said permit holder to NMFS, at an address designated by NMFS, 
within 24 hours of the time the fish product was exported from the 
United States or a U.S. insular possession. Once a system is available, 
permit holders will also be able to submit the forms electronically via 
the Internet.
    (c) * * *
    (3) Reporting requirements. For each re-export, when required under 
this paragraph (c), a permit holder must submit the original of the 
completed re-export certificate and the original or a copy of the 
original statistical document completed as specified under paragraph 
(c)(2) of this section, to accompany the shipment of such products to 
their re-export destination. A copy of the completed statistical 
document and re-export certificate, when required under this paragraph 
(c), must be postmarked and mailed by said permit holder to NMFS, at an 
address designated by NMFS, within 24 hours of the time the shipment 
was re-exported from the United States. Once a system is available, 
permit holders will also be able to submit the forms electronically via 
the Internet.
* * * * *

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    4. The authority citation for part 600 continues to read as 
follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
    5. In Sec.  600.725, paragraph (v), table entries 1.A., 1.H., and 
1.I. under section IX. Secretary of Commerce are revised to read as 
follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

------------------------------------------------------------------------
                  Fishery                       Authorized gear types
------------------------------------------------------------------------
* * * * * * *
                        IX. SECRETARY OF COMMERCE
1. Atlantic Tunas Swordfish and Sharks       ...........................
 Fisheries (FMP):
 A. Swordfish handgear fishery.............  A. Rod and reel, harpoon,
                                              handline, bandit gear,
                                              buoy gear.
* * * * * * *
 H. Tuna recreational fishery..............  H. Rod and reel, handline,
                                              speargun gear.
 I. Tuna handgear fishery..................  I. Rod and reel, harpoon,
                                              handline, bandit gear,
                                              green-stick gear.
* * * * * * *
------------------------------------------------------------------------

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    6. The authority citation for 50 CFR part 635 continues to read as 
follows:

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


PART 635  [AMENDED]

    7. In part 635, remove the phrase ``Northeast Distant closed area'' 
wherever it appears and add in its place ``Northeast Distant gear 
restricted area''.
    8. In Sec.  635.2, the definitions of ``East Florida Coast closed 
area'', ``Fishing year'', ``Handgear'', ``Handline'', and

[[Page 48828]]

``Shark'' are revised; paragraph (5) under the definition of 
``Management unit'' is revised; the definition of ``ILAP'' is removed; 
and new definitions for ``Atlantic HMS identification workshop 
certificate'', ``Buoy gear'', ``Green-stick gear'', ``Madison-Swanson 
closed area'', ``Protected species workshop certificate'', ``Speargun 
gear'', and ``Steamboat Lumps closed area'' are added in alphabetical 
order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Atlantic HMS identification workshop certificate means the document 
issued by NMFS indicating that the person issued the certificate 
successfully completed the HMS identification workshop.
* * * * *
    Buoy gear means fishing gear that is released and retrieved by 
hand, consisting of a single buoy supporting a single mainline to which 
no more than two hooks or gangions are attached, and to which gear 
monitoring equipment is affixed. Gear monitoring equipment includes, 
but is not limited to, radar reflectors, beeper devices, lights, or 
reflective tape. Buoy gear must be constructed and deployed so that the 
mainline remains vertical in the water column.
* * * * *
    East Florida Coast closed area means the Atlantic Ocean area 
seaward of the inner boundary of the U.S. EEZ from a point intersecting 
the inner boundary of the U.S. EEZ at 31[deg]00' N. lat. near Jekyll 
Island, GA, and proceeding due east to connect by straight lines the 
following coordinates in the order stated: 31[deg]00' N. lat., 
78[deg]00' W. long.; 28[deg]17'10'' N. lat., 79[deg]11'24'' W. long.; 
then proceeding along the outer boundary of the EEZ to the intersection 
of the EEZ with 24[deg]00' N. lat.; then proceeding due west to 
24[deg]00' N. lat., 81[deg]47' W. long.; and then proceeding due north 
to intersect the inner boundary of the U.S. EEZ at 81[deg]47' W. long. 
near Key West, FL.
* * * * *
    Fishing year means January 1 through December 31.
* * * * *
    Green-stick gear means a line that is elevated, or suspended, above 
the water's surface from which no more than 10 hooks or gangions may be 
hung. The gear must be actively trolled and configured so that the 
baits are fished on or above the surface of the water. The suspended 
line, attached gangions, and catch may be retrieved collectively by 
hand or by mechanical means.
    Handgear means handline, harpoon, rod and reel, bandit gear, buoy 
gear, speargun gear, or green-stick gear.
    Handline means fishing gear that is attached to, or in contact 
with, a vessel; that consists of a mainline to which no more than two 
hooks or gangions may be attached; and that is released and retrieved 
by hand rather than by mechanical means.
* * * * *
    Madison-Swanson closed area means a rectangular-shaped area in the 
Gulf of Mexico bounded by straight lines connecting the following 
coordinates in the order stated: 29[deg]17' N. lat., 85[deg]50' W. 
long.; 29[deg]17' N. lat., 85[deg]38' W. long.; 29[deg]06' N. lat., 
85[deg]38' W. long.; 29[deg]06' N. lat., 85[deg]50' W. long.; 
29[deg]17' N. lat., 85[deg]50' W. long.
    Management unit means in this part:
* * * * *
    (5) For sharks, means all fish of the species listed in Table 1 of 
Appendix A to this part, in the western north Atlantic Ocean, including 
the Gulf of Mexico and the Caribbean Sea.
* * * * *
    Protected species workshop certificate means the document issued by 
NMFS indicating that the certificate holder has successfully completed 
the Atlantic HMS protected species release, disentanglement, and 
identification workshop.
* * * * *
    Shark means one of the oceanic species, or a part thereof, listed 
in Table 1 of Appendix A to this part.
* * * * *
    Speargun gear means a muscle-powered speargun equipped with a 
trigger mechanism, a spear with a tip designed to penetrate and retain 
fish, and terminal gear. Terminal gear may include, but is not limited 
to, trailing lines, reels, and floats. The term ``muscle-powered 
spearguns'' for the purposes of this part means those spearguns that 
store potential energy provided from the operator's muscles, and that 
release only the amount of energy that the operator has provided to it 
from his or her own muscles. Common energy storing methods for muscle-
powered spearguns include compressing air and springs, and the 
stretching of rubber bands.
    Steamboat Lumps closed area means a rectangular-shaped area in the 
Gulf of Mexico bounded by straight lines connecting the following 
coordinates in the order stated: 28[deg]14' N. lat., 84[deg]48' W. 
long.; 28[deg]14' N. lat., 84[deg]37' W. long.; 28[deg]03' N. lat., 
84[deg]37' W. long.; 28[deg]03' N. lat., 84[deg]48' W. long.; 
28[deg]14' N. lat., 84[deg]48' W. long.
* * * * *
    9. In Sec.  635.4, paragraphs (a)(10), (c)(2), (d)(4), (e)(1), 
(e)(2), (f)(1), (f)(2), (h)(2), (l)(2)(i), (l)(2)(ii)(B), 
(l)(2)(ii)(C), (l)(2)(viii), (l)(2)(ix), (m)(1), and (m)(2) are revised 
to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (a) * * *
    (10) Permit condition. An owner issued a swordfish, shark, HMS 
Angling, or HMS Charter/Headboat permit pursuant to this part must 
agree, as a condition of such permit, that the vessel's HMS 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 HMS, or gear are possessed, taken, or landed. However, when 
a vessel fishes within the waters of a state that has more restrictive 
regulations on HMS fishing, persons aboard the vessel must abide by the 
state's more restrictive regulations.
* * * * *
    (c) * * *
    (2) A vessel issued an Atlantic Tunas General category permit under 
paragraph (d) of this section may fish in a recreational HMS fishing 
tournament if the vessel has registered for, paid an entry fee to, and 
is fishing under the rules of a tournament that has registered with 
NMFS' HMS Management Division as required under Sec.  635.5(d). When a 
vessel issued an Atlantic Tunas General category permit is fishing in 
such a tournament, such vessel must comply with HMS Angling category 
regulations, except as provided in 635.4(c)(3).
* * * * *
    (d) * * *
    (4) A person can obtain a limited access Atlantic Tunas Longline 
category permit for a vessel only if the vessel has been issued both a 
limited access permit for shark and a limited access permit, other than 
handgear, for swordfish. Limited access Atlantic Tunas Longline 
category permits may only be obtained through transfer from current 
owners consistent with the provisions under paragraph (l)(2) of this 
section.
* * * * *
    (e) * * *
    (1) The only valid Federal commercial vessel permits for sharks are 
those that have been issued under the limited access program consistent 
with the provisions under paragraphs (l) and (m) of this section.
    (2) The owner of each vessel used to fish for or take Atlantic 
sharks or on which Atlantic sharks are retained, possessed with an 
intention to sell, or

[[Page 48829]]

sold must obtain, in addition to any other required permits, only one 
of two types of commercial limited access shark permits: Shark directed 
limited access permit or shark incidental limited access permit. It is 
a rebuttable presumption that the owner or operator of a vessel on 
which sharks are possessed in excess of the recreational retention 
limits intends to sell the sharks.
* * * * *
    (f) * * *
    (1) The owner of each vessel used to fish for or take Atlantic 
swordfish or on which Atlantic swordfish are retained, possessed with 
an intention to sell, or sold must obtain, in addition to any other 
required permits, only one of three types of commercial limited access 
swordfish permits: Swordfish directed limited access permit, swordfish 
incidental limited access permit, or swordfish handgear limited access 
permit. It is a rebuttable presumption that the owner or operator of a 
vessel on which swordfish are possessed in excess of the recreational 
retention limits intends to sell the swordfish.
    (2) The only valid commercial Federal vessel permits for swordfish 
are those that have been issued under the limited access program 
consistent with the provisions under paragraphs (l) and (m) of this 
section.
* * * * *
    (h) * * *
    (2) Limited access permits for swordfish and shark. See paragraph 
(l) of this section for transfers of LAPs for shark and swordfish. See 
paragraph (m) of this section for renewals of LAPs for shark and 
swordfish.
* * * * *
    (l) * * *
    (2) * * *
    (i) Subject to the restrictions on upgrading the harvesting 
capacity of permitted vessels in paragraph (l)(2)(ii) of this section 
and to the limitations on ownership of permitted vessels in paragraph 
(l)(2)(iii) of this section, an owner may transfer a shark or swordfish 
LAP or an Atlantic Tunas Longline category permit to another vessel 
that he or she owns or to another person. Directed handgear LAPs for 
swordfish may be transferred to another vessel but only for use with 
handgear and subject to the upgrading restrictions in paragraph 
(l)(2)(ii) of this section and the limitations on ownership of 
permitted vessels in paragraph (l)(2)(iii) of this section. Incidental 
catch LAPs are not subject to the requirements specified in paragraphs 
(l)(2)(ii) and (l)(2)(iii) of this section.
    (ii) * * *
    (B) Subsequent to the issuance of a limited access permit, the 
vessel's horsepower may be increased only once, relative to the 
baseline specifications of the vessel originally issued the LAP, 
whether through refitting, replacement, or transfer. Such an increase 
may not exceed 20 percent of the baseline specifications of the vessel 
originally issued the LAP.
    (C) Subsequent to the issuance of a limited access permit, the 
vessel's length overall, gross registered tonnage, and net tonnage may 
be increased only once, relative to the baseline specifications of the 
vessel originally issued the LAP, whether through refitting, 
replacement, or transfer. Any increase in any of these three 
specifications of vessel size may not exceed 10 percent of the baseline 
specifications of the vessel originally issued the LAP. If any of these 
three specifications is increased, any increase in the other two must 
be performed at the same time. This type of upgrade may be done 
separately from an engine horsepower upgrade.
* * * * *
    (viii) As specified in paragraph (f)(4) of this section, a directed 
or incidental LAP for swordfish, a directed or an incidental catch LAP 
for shark, and an Atlantic Tunas Longline category permit are required 
to retain swordfish. Accordingly, a LAP for swordfish obtained by 
transfer without either a directed or incidental catch shark LAP or an 
Atlantic tunas Longline category permit will not entitle an owner or 
operator to use a vessel to fish in the swordfish fishery.
    (ix) As specified in paragraph (d)(4) of this section, a directed 
or incidental LAP for swordfish, a directed or an incidental catch LAP 
for shark, and an Atlantic Tunas Longline category permit are required 
to retain Atlantic tunas taken by pelagic longline gear. Accordingly, 
an Atlantic Tunas Longline category permit obtained by transfer without 
either a directed or incidental catch swordfish or shark LAP will not 
entitle an owner or operator to use the permitted vessel to fish in the 
Atlantic tunas fishery with pelagic longline gear.
    (m) * * *
    (1) General. Persons must apply annually for a dealer permit for 
Atlantic tunas, sharks, and swordfish, and for an Atlantic HMS Angling, 
HMS Charter/Headboat, tunas, shark, or swordfish vessel permit. Except 
as specified in the instructions for automated renewals, a renewal 
application must be submitted to NMFS, along with a copy of a valid 
workshop certificate, if required pursuant to Sec.  635.8, at an 
address designated by NMFS, at least 30 days before a permit's 
expiration to avoid a lapse of permitted status. NMFS will renew a 
permit provided that the specific requirements for the requested permit 
are met, including those described in paragraph (l)(2) of this section, 
all reports required under the Magnuson-Stevens Act and ATCA have been 
submitted, including those described in Sec.  635.5, the applicant is 
not subject to a permit sanction or denial under paragraph (a)(6) of 
this section, and the workshop requirements specified in Sec.  635.8 
are met.
    (2) Shark, swordfish, and tuna longline LAPs. The owner of a vessel 
of the United States that fishes for, possesses, lands or sells shark 
or swordfish from the management unit, or takes or possesses such shark 
or swordfish as incidental catch or that fishes for Atlantic tunas with 
longline gear must have the applicable limited access permit(s) issued 
pursuant to the requirements in paragraphs (e) and (f) of this section. 
Only persons holding a non-expired limited access permit(s) in the 
preceding year are eligible for renewal of a limited access permit(s). 
Limited access permits that have been transferred according to the 
procedures of paragraph (l) of this section are not eligible for 
renewal by the transferor.
    10. In Sec.  635.5, paragraph (a)(4) is removed; paragraphs (a)(5) 
and (a)(6) are redesignated as paragraphs (a)(4) and (a)(5), 
respectively; and paragraphs (a)(1), (b)(2)(i)(A), (b)(2)(i)(B), 
(b)(3), (c)(2) and (d) are revised to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (a) * * *
    (1) If an owner of an HMS Charter/Headboat, an Atlantic Tunas, a 
shark, or a swordfish vessel, for which a permit has been issued under 
Sec.  635.4(b), (d), (e), or (f), is selected for logbook reporting in 
writing by NMFS, he or she must maintain and submit a fishing record on 
a logbook form specified by NMFS. Entries are required regarding the 
vessel's fishing effort and the number of fish landed and discarded. 
Entries on a day's fishing activities must be entered on the logbook 
form within 48 hours of completing that day's activities or before 
offloading, whichever is sooner. The owner or operator of the vessel 
must submit the logbook form(s) postmarked within 7 days of offloading 
all Atlantic HMS. If no fishing occurred during a calendar month, a no-
fishing form so stating must be submitted postmarked no later than 7 
days after the end of that month. If an

[[Page 48830]]

owner of an HMS Charter/Headboat, an Atlantic Tunas, a shark, or a 
swordfish vessel, for which a permit has been issued under Sec.  
635.4(b), (d), (e), or (f), is selected in writing by NMFS to complete 
the cost-earnings portion of the logbook(s), the owner or operator must 
maintain and submit the cost-earnings portion of the logbook postmarked 
no later than 30 days after completing the offloading for each trip 
fishing for Atlantic HMS during that calendar year, and submit the 
annual cost-earnings form(s) postmarked no later than January 31 of the 
following year.
* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (A) Landing reports. Each dealer issued an Atlantic tunas permit 
under Sec.  635.4 must submit a completed landing report on a form 
available from NMFS for each BFT received from a U.S. fishing vessel. 
Such report must be submitted by electronic facsimile (fax) or, once 
available, via the Internet, to a number or a web address designated by 
NMFS not later than 24 hours after receipt of the BFT. A landing report 
must indicate the name and permit number of the vessel that landed the 
BFT and must be signed by the permitted vessel's owner or operator 
immediately upon transfer of the BFT. The dealer must inspect the 
vessel's permit to verify that the required vessel name and vessel 
permit number as listed on the permit are correctly recorded on the 
landing report and to verify that the vessel permit has not expired.
    (B) Bi-weekly reports. Each dealer issued an Atlantic tunas permit 
under Sec.  635.4 must submit a bi-weekly report on forms available 
from NMFS for BFT received from U.S. vessels. For BFT received from 
U.S. vessels on the 1st through the 15th of each month, the dealer must 
submit the bi-weekly report form to NMFS postmarked or , once 
available, electronically submitted via the Internet not later than the 
25th of that month. Reports of BFT received on the 16th through the 
last day of each month must be postmarked or, once available, 
electronically submitted via the Internet not later than the 10th of 
the following month.
* * * * *
    (3) Recordkeeping. Dealers must retain at their place of business a 
copy of each report required under paragraphs (b)(1)(i), (b)(1)(ii), 
and (b)(2)(i) of this section for a period of 2 years from the date on 
which each report was required to be submitted.
    (c) * * *
    (2) Billfish and North Atlantic swordfish. The owner of a vessel 
permitted, or required to be permitted, in the Atlantic HMS Angling or 
Atlantic HMS Charter/Headboat category must report all non-tournament 
landings of Atlantic blue marlin, Atlantic white marlin, and Atlantic 
sailfish, and all non-tournament and non-commercial landings North 
Atlantic swordfish to NMFS by calling a number designated by NMFS 
within 24 hours of the landing. No white marlin from the management 
unit may be taken, retained, or possessed from January 1, 2007, through 
December 31, 2011, inclusive, as specified in Sec.  635.22(b). For 
telephone reports, a contact phone number must be provided so that a 
NMFS designee can call the vessel owner back for follow up questions 
and to provide a confirmation of the reported landing. The telephone 
landing report has not been completed unless the vessel owner has 
received a confirmation number from a NMFS designee.
* * * * *
    (d) Tournament operators. A tournament operator must register with 
the NMFS' HMS Management Division all tournaments that are conducted 
from a port in an Atlantic coastal state, including the U.S. Virgin 
Islands and Puerto Rico, at least 4 weeks prior to commencement of the 
tournament by indicating the purpose, dates, and location of the 
tournament. Tournament registration is not considered complete unless 
the operator has received a confirmation number from the NMFS' HMS 
Management Division. NMFS will notify a tournament operator in writing 
when his or her tournament has been selected for reporting. Tournament 
operators that are selected to report must maintain and submit to NMFS 
a record of catch and effort on forms available from NMFS. Tournament 
operators must submit the completed forms to NMFS, at an address 
designated by NMFS, postmarked no later than the 7th day after the 
conclusion of the tournament, and must attach a copy of the tournament 
rules.
* * * * *
    11. Add Sec.  635.8 under subpart A to read as follows:


Sec.  635.8  Workshops.

    (a) Protected species release, disentanglement, and identification 
workshops. (1) As of January 1, 2007, both owners and operators of 
vessels that have been issued or are required to have, Atlantic Tuna 
Longline Category, shark, or swordfish limited access vessel permits, 
pursuant to Sec.  635.4(d)(4), (e), and (f), and that fish with 
longline or gillnet gear, must be certified by NMFS as having completed 
a workshop on the release, disentanglement, and identification of 
protected species. For the purposes of this section, it is a rebuttable 
presumption that vessel owners and/or operators fish with longline or 
gillnet gear if: longline or gillnet gear is onboard the vessel; 
logbook reports indicate that longline or gillnet gear was used on at 
least one trip in the preceding year; or in the case of a permit 
transfer to new owners that occurred less than a year ago, logbook 
reports indicate that longline or gillnet gear was used on at least one 
trip since the permit transfer.
    (2) NMFS will issue a protected species workshop certificate to any 
permitted entity or person who has completed the workshop.
    (3) The owner of a vessel, that fishes with longline or gillnet 
gear as specified in paragraph (a)(1) of this section, is required to 
maintain, and possess on board the vessel, a valid protected species 
workshop certificate issued to that vessel owner. A copy of a valid 
protected species workshop certificate issued to the vessel owner for a 
vessel that fishes with longline or gillnet gear must be included in 
the application package to renew or obtain an Atlantic Tuna Longline 
Category, shark, or swordfish limited access permit. An owner who owns 
multiple vessels will be issued, upon successful completion of one 
workshop, multiple certificates to cover each vessel that he or she 
owns. An owner who is also an operator will be issued multiple 
certificates, one for the vessel and one for the operator.
    (4) An operator that fishes with longline or gillnet gear as 
specified in paragraph (a)(1) of this section must possess on board the 
vessel a valid protected species workshop certificate issued to that 
operator, in addition to a certificate issued to the vessel owner.
    (5) All owners and operators that, as documented by workshop 
facilitators, attended and successfully completed industry 
certification workshops, held on April 8, 2005, in Orlando, FL, and on 
June 27, 2005, in New Orleans, LA, will automatically receive valid 
protected species workshop certificates issued by NMFS no later than 
December 31, 2006.
    (b) Atlantic HMS identification workshops. (1) As of January 1, 
2007, all Federal Atlantic shark dealers permitted or required to be 
permitted pursuant to Sec.  635.4(g)(2), or a proxy as specified in 
paragraph (b)(4), must be certified by NMFS as having completed a 
workshop on the identification of HMS.

[[Page 48831]]

    (2) NMFS will issue an Atlantic HMS identification workshop 
certificate to any permitted entity or a proxy who has completed a 
workshop.
    (3) Dealers who own multiple businesses and who attend and 
successfully complete the workshop themselves will be issued multiple 
certificates to cover each place of business that he or she owns.
    (4) Dealers may send a proxy to the workshops. If a dealer opts to 
send a proxy, the dealer must designate a proxy from each place of 
business covered by the dealer's permit issued pursuant to Sec.  
635.4(g)(2). The proxy must be a person who is currently employed by a 
place of business covered by the dealer's permit; is a primary 
participant in the identification, weighing, or first receipt of fish 
as they are offloaded from a vessel; and is involved in filling out 
dealer reports as required under Sec.  635.5. Only one certificate will 
be issued to each proxy. If a proxy leaves the employment of a place of 
business covered by the dealer's permit, the dealer or another proxy 
must be certified as having completed a workshop pursuant to this 
section.
    (5) A Federal Atlantic shark dealer issued or required to be issued 
a shark dealer permit pursuant to Sec.  635.4(g)(2) must maintain and 
make available for inspection, at each place of business, a valid 
Atlantic HMS identification workshop certificate. A copy of this 
certificate issued to the dealer or proxy must be included in the 
dealer's application package to obtain or renew a shark dealer permit.
    (c) Terms and conditions. (1) Certificates, as described in 
paragraphs (a) and (b) of this section, are valid for three calendar 
years from the date of issuance. All certificates must be renewed every 
three years.
    (2) If a vessel fishes with longline or gillnet gear as described 
in paragraph (a), the vessel's owner cannot renew his or her Atlantic 
tunas Longline Category, shark, or swordfish limited access permit 
issued pursuant to Sec.  635.4(d)(4), (e), or (f) without a valid 
protected species workshop certificate.
    (3) An operator of a vessel that fishes with longline or gillnet 
gear as described in paragraph (a) and that has been or should be 
issued a limited access permit pursuant to Sec.  635.4(d)(4), (e), or 
(f), cannot fish without valid protected species workshop certificates 
issued to both the owner of that vessel and operator on board that 
vessel.
    (4) An Atlantic shark dealer cannot receive, purchase, trade, or 
barter for Atlantic shark without a valid Atlantic HMS identification 
workshop certificate on the premises of each business location. An 
Atlantic shark dealer cannot renew a Federal dealer permit issued 
pursuant to Sec.  635.4(g)(2) without a valid Atlantic HMS 
identification workshop certificate.
    (5) A vessel owner, operator, shark dealer, or proxy for a shark 
dealer who is issued either a protected species workshop certificate or 
an Atlantic HMS identification workshop certificate cannot transfer 
that certificate to another person.
    (6) Vessel owners issued a valid protected species workshop 
certificate can request, in the application for permit transfer per 
Sec.  635.4(l)(2), additional protected species workshop certificates 
for additional vessels that they own. Shark dealers can request from 
NMFS additional Atlantic HMS identification workshop certificates for 
additional places of business that they own provided that they, and not 
a proxy, were issued the certificate. Any additional certificates will 
expire three years after the workshop was attended and successfully 
completed, not three years after the request for an additional 
certificate.
    12. In Sec.  635.20, paragraph (d)(2) is revised; and paragraph 
(d)(4) is added to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (d) * * *
    (2) No person shall take, retain or possess a white marlin taken 
from its management unit that is less than 66 inches (168 cm), LJFL. No 
white marlin from the management unit may be taken, retained or 
possessed from January 1, 2007, through December 31, 2011, inclusive, 
as specified in Sec.  635.22(b).
* * * * *
    (4) The Atlantic blue and white marlin minimum size limits, 
specified in paragraphs (d)(1) and (d)(2) of this section, may be 
adjusted to sizes between 117 and 138 inches and 70 and 79 inches, 
respectively, to achieve, but not exceed, the annual Atlantic marlin 
landing limit specified in Sec.  635.27(d). No white marlin from the 
management unit may be taken, retained, or possessed from January 1, 
2007, through December 31, 2011, inclusive, as specified in Sec.  
635.22(b). Minimum size limit increases will be based upon a review of 
landings, the period of time remaining until conclusion of the current 
fishing year, current and historical landing trends, and any other 
relevant factors. NMFS will adjust the minimum size limits specified in 
this section by filing an adjustment with the Office of the Federal 
Register for publication. In no case shall the adjustments be effective 
less than 5 days after the date of publication. The adjusted minimum 
size limits will remain in effect through the end of the applicable 
fishing year or until otherwise adjusted.
* * * * *
    13. In Sec.  635.21, paragraphs (a)(2), (a)(4), (b), (c)(1), 
(c)(2)(ii), (c)(2)(iii), (c)(2)(iv), (c)(2)(v) introductory text, 
(e)(1) introductory text, (e)(1)(i), (e)(1)(ii), (e)(1)(iii), 
(e)(2)(i), (e)(2)(ii), and (e)(4)(iii) are revised; and paragraphs 
(d)(4), (e)(2)(iii), and (f) are added to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

    (a) * * *
    (2) If a billfish is caught by a hook and not retained, the fish 
must be released by cutting the line near the hook or by using a 
dehooking device, in either case without removing the fish from the 
water.
* * * * *
    (4) Area closures for all Atlantic HMS fishing gears. (i) No person 
may fish for, catch, possess, or retain any Atlantic highly migratory 
species or anchor a fishing vessel that has been issued a permit or is 
required to be permitted under this part, in the areas designated at 
Sec.  622.34(d) of this chapter.
    (ii) From November through April of each year until June 16, 2010, 
no vessel issued, or required to be issued, a permit under this part 
may fish or deploy any type of fishing gear in the Madison-Swanson 
closed area or the Steamboat Lumps closed area, as defined in Sec.  
635.2.
    (iii) From May through October of each year until June 16, 2010, no 
vessel issued, or required to be issued, a permit under this part may 
fish or deploy any type of fishing gear in the Madison-Swanson or the 
Steamboat Lumps closed areas except for surface trolling.
    (iv) For the purposes of this paragraph, surface trolling is 
defined as fishing with lines trailing behind a vessel which is in 
constant motion at speeds in excess of four knots with a visible wake. 
Such trolling may not involve the use of down riggers, wire lines, 
planers, or similar devices.
    (b) General. No person may fish for, catch, possess, or retain any 
Atlantic HMS other than with the primary gears, which are the gears 
specifically authorized in this part. Consistent with paragraphs (a)(1) 
and (a)(2) of this section, secondary gears may be used to aid and 
assist in subduing, or bringing on board a vessel, Atlantic HMS that 
have first been caught or captured using primary gears. For purposes of 
this part,

[[Page 48832]]

secondary gears include, but are not limited to, dart harpoons, gaffs, 
flying gaffs, tail ropes, etc. Secondary gears may not be used on free-
swimming HMS. A vessel using or having onboard in the Atlantic Ocean 
any unauthorized gear may not have an Atlantic HMS on board.
    (c) * * *
    (1) If a vessel issued or required to be issued a permit under this 
part is in a closed area designated under paragraph (c)(2) of this 
section and has a bottom longline onboard, the vessel may not, at any 
time:
    (i) Possess or land any pelagic species listed in Table 2 of 
Appendix A to this part in excess of 5 percent, by weight, of the 
weight of demersal species possessed or landed, that are listed in 
Table 3 of Appendix A to this part; and
    (ii) Possess or deploy more than 70 fishing floats.
    (2) * * *
    (ii) In the Charleston Bump closed area from February 1 through 
April 30 each calendar year;
    (iii) In the East Florida Coast closed area at any time;
    (iv) In the Desoto Canyon closed area at any time;
    (v) In the Northeast Distant gear restricted area at any time, 
unless persons onboard the vessel comply with the following:
* * * * *
    (d) * * *
    (4) If a vessel issued or required to be issued a permit under this 
part is in a closed area designated under paragraph (d)(1) of this 
section and has a pelagic longline onboard, the vessel may not, at any 
time:
    (i) Possess or land any demersal species listed in Table 3 of 
Appendix A to this part in excess of 5 percent, by weight, of the 
weight of pelagic species possessed or landed, that are listed in Table 
2 of Appendix A to this part; and
    (ii) Possess or deploy less than 71 fishing floats.
    (e) * * *
    (1) Atlantic tunas. A person that fishes for, retains, or possesses 
an Atlantic bluefin tuna may not have on board a vessel, use on board 
the vessel, or deploy green-stick gear or any primary gear other than 
those authorized for the category for which the Atlantic tunas or HMS 
permit has been issued for such vessel. Primary gears are the gears 
specifically authorized in this section. When fishing for Atlantic 
tunas other than BFT, primary fishing gear authorized for any Atlantic 
Tunas permit category may be used, except that purse seine gear may be 
used only on board vessels permitted in the Purse Seine category and 
pelagic longline gear may be used only on board vessels issued an 
Atlantic Tunas Longline category tuna permit, a LAP other than handgear 
for swordfish, and a LAP for sharks.
    (i) Angling. Rod and reel (including downriggers), handline, and 
speargun gear.
    (ii) Charter/Headboat. Rod and reel (including downriggers), bandit 
gear, handline, speargun gear, and green-stick gear (on non for-hire 
trips).
    (iii) General. Rod and reel (including downriggers), handline, 
harpoon, bandit gear, and green-stick gear.
* * * * *
    (2) * * *
    (i) Only persons who have been issued an HMS Angling or a Charter/
Headboat permit, or who have been issued an Atlantic Tunas General 
category permit and are participating in a tournament as provided in 
Sec.  635.4(c) of this part, may possess a blue marlin or white marlin 
in, or take a blue marlin or a white marlin from, its management unit. 
Blue marlin or white marlin may only be harvested by rod and reel. No 
white marlin from the management unit may be taken, retained, or 
possessed from January 1, 2007, through December 31, 2011, inclusive.
    (ii) Only persons who have been issued an HMS Angling or a Charter/
Headboat permit, or who have been issued an Atlantic Tunas General 
category permit and are participating in a tournament as provided in 
Sec.  635.4(c) of this part, may possess or take a sailfish shoreward 
of the outer boundary of the Atlantic EEZ. Sailfish may only be 
harvested by rod and reel.
    (iii) Persons who have been issued or are required to be issued a 
permit under this part and who are participating in a tournament, as 
defined in Sec.  635.2, for Atlantic billfish must deploy only non-
offset circle hooks when using natural bait or natural bait/artificial 
lure combinations, and may not deploy a J-hook or an offset circle hook 
in combination with natural bait or a natural bait/artificial lure 
combination.
* * * * *
    (4) * * *
    (iii) A person aboard a vessel issued or required to be issued a 
directed handgear LAP for Atlantic swordfish may not fish for swordfish 
with any gear other than handgear. Vessels that have been issued or 
that are required to have been issued a directed or handgear swordfish 
limited access permit under this part and that are utilizing buoy gear 
may not possess or deploy more than 35 individual buoys per vessel. All 
deployed buoy gear must have monitoring equipment affixed to it 
including, but not limited to, radar reflectors, beeper devices, 
lights, or reflective tape. If only reflective tape is affixed, the 
vessel deploying the buoy gear must possess an operable spotlight 
capable of illuminating deployed buoys. A swordfish will be deemed to 
have been harvested by longline when the fish is on board or offloaded 
from a vessel using or having on board longline gear.
* * * * *
    (f) Speargun gear. Persons authorized to fish for Atlantic tunas 
using speargun gear, as specified in paragraph (e)(1) of this section, 
must be physically in the water when the speargun is fired, and may 
freedive, use SCUBA or other underwater breathing devices. Only free-
swimming fish, not those restricted by fishing lines or other means may 
be taken by speargun gear. Powerheads, as defined at Sec.  600.10 of 
this part, are not allowed to be used to harvest or fish for tunas with 
speargun gear.
    14. In Sec.  635.22, paragraphs (b) and (c) are revised to read as 
follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (b) Billfish. No longbill spearfish from the management unit may be 
taken, retained, or possessed shoreward of the outer boundary of the 
EEZ. No white marlin from the management unit may be taken, retained, 
or possessed from January 1, 2007, through December 31, 2011, 
inclusive.
    (c) Sharks. One shark from either the large coastal, small coastal, 
or pelagic group may be retained per vessel per trip, subject to the 
size limits described in Sec.  635.20(e), and, in addition, one 
Atlantic sharpnose shark and one bonnethead shark may be retained per 
person per trip. Regardless of the length of a trip, no more than one 
Atlantic sharpnose shark and one bonnethead shark per person may be 
possessed on board a vessel. No prohibited sharks, including parts or 
pieces of prohibited sharks, from the management unit, which are listed 
in Table 1 of Appendix A to this part under prohibited sharks, may be 
retained. The recreational retention limit for sharks applies to any 
person who fishes in any manner, except to a person aboard a vessel 
which has been issued an Atlantic shark LAP under Sec.  635.4. If an 
Atlantic shark quota is closed under Sec.  635.28, the recreational 
retention limit for sharks may be applied to persons aboard a vessel 
issued an Atlantic shark LAP under Sec.  635.4, only if that vessel has 
also been issued an HMS Charter/

[[Page 48833]]

Headboat permit issued under Sec.  635.4 and is engaged in a for-hire 
fishing trip.
* * * * *
    15. In Sec.  635.23, paragraphs (a)(4), (b)(3), and (f)(3) are 
revised to read as follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (a) * * *
    (4) To provide for maximum utilization of the quota for BFT, NMFS 
may increase or decrease the daily retention limit of large medium and 
giant BFT over a range from zero (on RFDs) to a maximum of three per 
vessel. Such increase or decrease will be based on the criteria 
provided under Sec.  635.28(a)(8). NMFS will adjust the daily retention 
limit specified in paragraph (a)(2) of this section by filing an 
adjustment with the Office of the Federal Register for publication. In 
no case shall such adjustment be effective less than 3 calendar days 
after the date of filing with the Office of the Federal Register, 
except that previously designated RFDs may be waived effective upon 
closure of the General category fishery so that persons aboard vessels 
permitted in the General category may conduct tag-and-release fishing 
for BFT under Sec.  635.26.
    (b) * * *
    (3) Changes to retention limits. To provide for maximum utilization 
of the quota for BFT, over the longest period of time, NMFS may 
increase or decrease the retention limit for any size class BFT, or 
change a vessel trip limit to an angler trip limit and vice versa. Such 
increase or decrease in retention limit will be based on the criteria 
provided under Sec.  635.28 (a)(8). Such adjustments to the retention 
limits may be applied separately for persons aboard a specific vessel 
type, such as private vessels, headboats, or charter boats. NMFS will 
adjust the daily retention limit specified in paragraph (b)(2) of this 
section by filing an adjustment with the Office of the Federal Register 
for publication. In no case shall such adjustment be effective less 
than 3 calendar days after the date of filing with the Office of the 
Federal Register.
* * * * *
    (f) * * *
    (3) For pelagic longline vessels fishing in the Northeast Distant 
gear restricted area, under the exemption specified at Sec.  
635.21(c)(2)(v), all BFT taken incidental to fishing for other species 
while in that area may be retained up to the available quota as 
specified in Sec.  635.27(a), notwithstanding the retention limits and 
target catch requirements specified in paragraph (f)(1) of this 
section. Once the available quota as specified in Sec.  635.27(a) has 
been attained, the target catch requirements specified in paragraph 
(f)(1) of this section apply.
* * * * *
    16. In Sec.  635.24, paragraphs (a)(1), (a)(2), (b)(1), and the 
first sentence in paragraph (b)(2) are revised; and paragraph (a)(3) is 
added to read as follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

* * * * *
    (a) * * *
    (1) Persons who own or operate a vessel that has been issued a 
directed LAP for shark may retain, possess or land no more than 4,000 
lb (1,814 kg) dw of LCS per trip.
    (2) Persons who own or operate a vessel that has been issued an 
incidental catch LAP for sharks may retain, possess or land no more 
than 5 LCS and 16 SCS and pelagic sharks, combined, per trip.
    (3) Persons who own or operate a vessel that has been issued an 
incidental or directed LAP for sharks may not retain, possess, land, 
sell, or purchase a prohibited shark, including parts or pieces of 
prohibited sharks, which are listed in Table 1 of Appendix A to this 
part under prohibited sharks.
    (b) * * *
    (1) Persons aboard a vessel that has been issued an incidental LAP 
for swordfish may retain, possess, or land no more than two swordfish 
per trip in or from the Atlantic Ocean north of 5[deg] N. lat.
    (2) Persons aboard a vessel in the squid trawl fishery that has 
been issued an incidental LAP for swordfish may retain, possess, or 
land no more than five swordfish per trip in or from the Atlantic Ocean 
north of 5[deg] N. lat. * * *
    17. In Sec.  635.27, paragraphs (a) introductory text, (a)(1) 
introductory text, (a)(1)(i), (a)(1)(iii), (a)(2), (a)(3), (a)(4)(i), 
(a)(4)(iii), (a)(5), (a)(6), (a)(7)(i), (a)(7)(ii), (a)(8), (a)(9), 
(b)(1) introductory text, (c)(1)(i)(A), (c)(1)(i)(C), (c)(1)(ii), 
(c)(2)(i), (c)(2)(iv), and (c)(3) are revised; paragraph (a)(7)(iii) is 
removed; and paragraphs (a)(10) and (d) are added to read as follows:


Sec.  635.27  Quotas.

    (a) BFT. Consistent with ICCAT recommendations, NMFS will subtract 
any allowance for dead discards from the fishing year's total U.S. 
quota for BFT that can be caught, and allocate the remainder to be 
retained, possessed, or landed by persons and vessels subject to U.S. 
jurisdiction. The total landing quota will be divided among the 
General, Angling, Harpoon, Purse Seine, Longline, Trap, and Reserve 
categories. Consistent with these allocations and other applicable 
restrictions of this part, BFT may be taken by persons aboard vessels 
issued Atlantic Tunas permits, HMS Angling permits, or HMS Charter/
Headboat permits. The BFT baseline annual landings quota is 1,464.6 mt, 
not inclusive of an additional, annual 25 mt allocation provided in 
paragraph (a)(3) of this section. Allocations of this baseline annual 
landings quota will be made according to the following percentages: 
General - 47.1 percent (689.8 mt); Angling - 19.7 percent (288.6 mt), 
which includes the school BFT held in reserve as described under 
paragraph (a)(7)(ii) of this section; Harpoon - 3.9 percent (57.1 mt); 
Purse Seine - 18.6 percent (272.4 mt); Longline - 8.1 percent (118.6 
mt), which does not include the additional annual 25 mt allocation 
provided in paragraph (a)(3) this section; and Trap - 0.1 percent (1.5 
mt). The remaining 2.5 percent (36.6 mt) of the baseline annual 
landings quota will be held in reserve for inseason or annual 
adjustments based on the criteria in paragraph (a)(8) of this section. 
NMFS may apportion a landings quota allocated to any category to 
specified fishing periods or to geographic areas and will make annual 
adjustments to quotas, as specified in paragraph (a)(10) of this 
section. BFT landings quotas are specified in whole weight.
    (1) General category landings quota. Consistent with the 
Administrative Procedure Act and in accordance with the framework 
procedures of the HMS FMP, NMFS will publish in the Federal Register, 
prior to the beginning of each fishing year or as early as feasible, 
the General category effort control schedule, including daily retention 
limits and restricted-fishing days.
    (i) Catches from vessels for which General category Atlantic Tunas 
permits have been issued and certain catches from vessels for which an 
HMS Charter/Headboat permit has been issued are counted against the 
General category landings quota. See Sec.  635.23(c)(3) regarding 
landings by vessels with an HMS Charter/Headboat permit that are 
counted against the baseline General category landings quota. The 
amount of large medium and giant BFT that may be caught, retained, 
possessed, landed, or sold under the baseline General category landings 
quota is 47.1 percent (689.8 mt) of the overall baseline annual BFT 
landings quota, and is apportioned as follows:
    (A) June 1 through August 31 - 50 percent (344.9 mt);
    (B) September 1 through September 30 - 26.5 percent (182.8 mt);

[[Page 48834]]

    (C) October 1 through November 30 - 13 percent (89.7 mt);
    (D) December 1 through December 31 - 5.2 percent (35.9 mt); and
    (E) January 1 through January 31 - 5.3 percent (36.5 mt).
* * * * *
    (iii) When the coastwide General category fishery has been closed 
in any quota period specified under paragraph (a)(1)(i) of this 
section, NMFS will publish a closure action as specified in Sec.  
635.28. The subsequent time-period subquota will automatically open in 
accordance with the dates specified under paragraph (a)(1)(i) of this 
section.
    (2) Angling category landings quota. Consistent with the 
Administrative Procedure Act and in accordance with the framework 
procedures of the HMS FMP, prior to each fishing year or as early as 
feasible, NMFS will set the Angling category daily retention limits. 
The total amount of BFT that may be caught, retained, possessed, and 
landed by anglers aboard vessels for which an HMS Angling permit or an 
HMS Charter/Headboat permit has been issued is 19.7 percent (288.6 mt) 
of the overall annual U.S. BFT baseline landings quota. No more than 
2.3 percent (6.6 mt) of the annual Angling category landings quota may 
be large medium or giant BFT and, over each 4-consecutive-year period 
(starting in 1999, inclusive), no more than 8 percent of the overall 
U.S. BFT baseline landings quota, inclusive of the allocation specified 
in paragraph (a)(3) of this section, may be school BFT. The Angling 
category landings quota includes the amount of school BFT held in 
reserve as specified under paragraph (a)(7)(ii) of this section.
    (3) Longline category quota. The total amount of large medium and 
giant BFT that may be caught incidentally and retained, possessed, or 
landed by vessels for which Longline category Atlantic Tunas permits 
have been issued is 8.1 percent (118.6 mt) of the overall U.S. BFT 
quota. No more than 60.0 percent of the Longline category quota may be 
allocated for landing in the area south of 31[deg]00'; N. lat. In 
addition, 25 mt shall be allocated for incidental catch by pelagic 
longline vessels fishing in the Northeast Distant gear restricted area 
as specified at Sec.  635.23(f)(3).
    (4) * * *
    (i) The total amount of large medium and giant BFT that may be 
caught, retained, possessed, or landed by vessels for which Purse Seine 
category Atlantic Tunas permits have been issued is 18.6 percent (272.4 
mt) of the overall U.S. BFT baseline landings quota. The directed purse 
seine fishery for BFT commences on July 15 of each year unless NMFS 
takes action to delay the season start date. Based on cumulative and 
projected landings in other commercial fishing categories, and the 
potential for gear conflicts on the fishing grounds or market impacts 
due to oversupply, NMFS may delay the BFT purse seine season start date 
from July 15 to no later than August 15 by filing an adjustment with 
the Office of the Federal Register for publication. In no case shall 
such adjustment be filed less than 14 calendar days prior to July 15.
* * * * *
    (iii) On or about May 1 of each year, NMFS will make equal 
allocations of the available size classes of BFT among purse seine 
vessel permit holders so requesting, adjusted as necessary to account 
for underharvest or overharvest by each participating vessel or the 
vessel it replaces from the previous fishing year, consistent with 
paragraph (a)(10)(i) of this section. Such allocations are freely 
transferable, in whole or in part, among vessels that have Purse Seine 
category Atlantic Tunas permits. Any purse seine vessel permit holder 
intending to land bluefin tuna under an allocation transferred from 
another purse seine vessel permit holder must provide written notice of 
such intent to NMFS, at an address designated by NMFS, 3 days before 
landing any such bluefin tuna. Such notification must include the 
transfer date, amount (in metric tons) transferred, and the permit 
numbers of vessels involved in the transfer. Trip or seasonal catch 
limits otherwise applicable under Sec.  635.23(e) are not altered by 
transfers of bluefin tuna allocation. Purse seine vessel permit holders 
who, through landing and/or transfer, have no remaining bluefin tuna 
allocation may not use their permitted vessels in any fishery in which 
Atlantic bluefin tuna might be caught, regardless of whether bluefin 
tuna are retained.
* * * * *
    (5) Harpoon category quota. The total amount of large medium and 
giant BFT that may be caught, retained, possessed, landed, or sold by 
vessels for which Harpoon category Atlantic Tunas permits have been 
issued is 3.9 percent (57.1 mt) of the overall U.S. BFT baseline quota. 
The Harpoon category fishery closes on November 15 each year.
    (6) Trap category quota. The total amount of large medium and giant 
BFT that may be caught, retained, possessed, or landed by vessels for 
which Trap category Atlantic Tunas permits have been issued is 0.1 
percent (1.5 mt) of the overall U.S. BFT baseline quota.
    (7) * * *
    (i) The total amount of BFT that is held in reserve for inseason or 
annual adjustments and fishery-independent research using quotas or 
subquotas is 2.5 percent (36.6 mt) of the overall U.S. BFT baseline 
quota. Consistent with paragraph (a)(8) of this section, NMFS may 
allocate any portion of this reserve for inseason or annual adjustments 
to any category quota in the fishery.
    (ii) The total amount of school BFT that is held in reserve for 
inseason or annual adjustments and fishery-independent research is 18.5 
percent (36.6 mt) of the total school BFT quota for the Angling 
category as described under paragraph (a)(2) of this section, which is 
in addition to the amounts specified in paragraph (a)(7)(i) of this 
section. Consistent with paragraph (a)(8) of this section, NMFS may 
allocate any portion of the school BFT held in reserve for inseason or 
annual adjustments to the Angling category.
    (8) Determination criteria. NMFS will file with the Office of the 
Federal Register for publication notification of any inseason or annual 
adjustments. Before making any such adjustment, NMFS will consider the 
following criteria and other relevant factors:
    (i) The usefulness of information obtained from catches in the 
particular category for biological sampling and monitoring of the 
status of the stock.
    (ii) The catches of the particular category quota to date and the 
likelihood of closure of that segment of the fishery if no adjustment 
is made.
    (iii) The projected ability of the vessels fishing under the 
particular category quota to harvest the additional amount of BFT 
before the end of the fishing year.
    (iv) The estimated amounts by which quotas for other gear 
categories of the fishery might be exceeded.
    (v) Effects of the adjustment on BFT rebuilding and overfishing.
    (vi) Effects of the adjustment on accomplishing the objectives of 
the Fishery Management Plan.
    (vii) Variations in seasonal distribution, abundance, or migration 
patterns of BFT.
    (viii) Effects of catch rates in one area precluding vessels in 
another area from having a reasonable opportunity to harvest a portion 
of the category's quota.
    (ix) Review of dealer reports, daily landing trends, and the 
availability of the BFT on the fishing grounds.
    (9) Inseason adjustments. Within a fishing year, NMFS may transfer 
quotas among categories or, as appropriate, subcategories, based on the 
criteria in

[[Page 48835]]

paragraph (a)(8) of this section. NMFS may transfer inseason any 
portion of the remaining quota of a fishing category to any other 
fishing category or to the reserve as specified in paragraph (a)(7) of 
this section.
    (10) Annual adjustments. (i) If NMFS determines, based on landings 
statistics and other available information, that a BFT quota for any 
category or, as appropriate, subcategory has been exceeded or has not 
been reached, with the exception of the Purse Seine category, NMFS 
shall subtract the overharvest from, or add the underharvest to, that 
quota category for the following fishing year. These adjustments would 
be made provided that the underharvest being carried forward does not 
exceed 100 percent of the each category's baseline allocation specified 
in paragraph (a) of this section, and the total of the adjusted 
category quotas and the reserve are consistent with ICCAT 
recommendations. For the Purse Seine category, if NMFS determines, 
based on landings statistics and other available information, that a 
purse seine vessel's allocation, as adjusted, has been exceeded or has 
not been reached, NMFS shall subtract the overharvest from, or add the 
underharvest to, that vessel's allocation for the following fishing 
year. Purse seine vessel adjustments would take place provided that the 
underharvest being carried forward does not exceed 100 percent of the 
purse seine category baseline allocation. Any of the above unharvested 
quota amounts being carried forward that exceed the 100 percent limit 
will be transferred to the reserve, or another domestic quota category 
provided the transfers are consistent with paragraph (a)(8) of this 
section.
    (ii) NMFS may allocate any quota remaining in the reserve at the 
end of a fishing year to any fishing category, provided such allocation 
is consistent with the criteria specified in paragraph (a)(8) of this 
section.
    (iii) Regardless of the estimated landings in any year, NMFS may 
adjust the annual school BFT quota to ensure that the average take of 
school BFT over each 4-consecutive-year period beginning in the 1999 
fishing year does not exceed 8 percent by weight of the total U.S. BFT 
baseline quota for that period.
    (iv) If NMFS determines that the annual dead discard allowance has 
been exceeded in one fishing year, NMFS shall subtract the amount in 
excess of the allowance from the amount of BFT that can be landed in 
the subsequent fishing year by those categories accounting for the dead 
discards. If NMFS determines that the annual dead discard allowance has 
not been reached, NMFS may add one-half of the remainder to the amount 
of BFT that can be landed in the subsequent fishing year. Such amount 
may be allocated to individual fishing categories or to the reserve.
    (v) NMFS will file any annual adjustment with the Office of the 
Federal Register for publication and specify the basis for any quota 
reductions or increases made pursuant to this paragraph (a)(10).
    (b) * * *
    (1) Commercial quotas. The commercial quotas for sharks specified 
in paragraphs (b)(1)(i) through (b)(1)(vi) of this section apply to 
sharks harvested from the management unit, regardless of where 
harvested. Commercial quotas are specified for each of the management 
groups of large coastal sharks, small coastal sharks, and pelagic 
sharks. No prohibited sharks, including parts or pieces of prohibited 
sharks, which are listed in Section D. of Table 1 of appendix A to this 
part, may be retained except as authorized under Sec.  635.32.
* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (A) A swordfish from the North Atlantic swordfish stock caught 
prior to the directed fishery closure by a vessel for which a directed 
or handgear swordfish limited access permit has been issued is counted 
against the directed fishery quota. The annual fishery quota, not 
adjusted for over-or underharvests, is 2,937.6 mt dw. The annual quota 
is subdivided into two equal semiannual quotas: one for January 1 
through June 30, and the other for July 1 through December 31.
* * * * *
    (C) All swordfish discarded dead from U.S. fishing vessels, 
regardless of whether such vessels are permitted under this part, shall 
be counted against the annual directed fishing quota.
* * * * *
    (ii) South Atlantic swordfish. The annual directed fishery quota 
for the South Atlantic swordfish stock for the 2005 fishing year is 
75.2 mt dw. For the 2006 fishing year and thereafter, the annual 
directed fishery quota for south Atlantic swordfish is 90.2 mt dw. The 
entire quota for the South Atlantic swordfish stock is reserved for 
vessels with pelagic longline gear onboard and for which a directed 
fishery permit for swordfish has been issued; retention of swordfish 
caught incidental to other fishing activities or with other fishing 
gear is prohibited in the Atlantic Ocean south of 5 degrees North 
latitude.
    (2) * * *
    (i) NMFS may adjust the July 1 through December 31 semiannual 
directed fishery quota or, as applicable, the reserve category, to 
reflect actual directed fishery and incidental fishing category catches 
during the January 1 through June 30 semiannual period.
* * * * *
    (iv) NMFS will file with the Office of the Federal Register for 
publication any inseason swordfish quota adjustment and its 
apportionment to fishing categories or to the reserve made under 
paragraph (c)(2) of this section.
    (3) Annual adjustments. (i) Except for the carryover provisions of 
paragraphs (c)(3)(ii) and (iii) of this section, NMFS will file with 
the Office of the Federal Register for publication any adjustment to 
the annual quota necessary to meet the objectives of the Fishery 
Management Plan for Atlantic Tunas, Swordfish and Sharks. Consistent 
with the APA, NMFS will provide an opportunity for public comment.
    (ii) If consistent with applicable ICCAT recommendations, total 
landings above or below the specific North Atlantic or South Atlantic 
swordfish annual quota shall be subtracted from, or added to, the 
following year's quota for that area. As necessary to meet management 
objectives, such carryover adjustments may be apportioned to fishing 
categories and/or to the reserve. Any adjustments to the 12-month 
directed fishery quota will be apportioned equally between the two 
semiannual fishing seasons. NMFS will file with the Office of the 
Federal Register for publication any adjustment or apportionment made 
under this paragraph (c)(3)(ii).
    (iii) The dressed weight equivalent of the amount by which dead 
discards exceed the allowance specified at paragraph (c)(1)(i)(C) of 
this section shall be subtracted from the landings quota in the 
following fishing year or from the reserve category. NMFS will file 
with the Office of the Federal Register for publication any adjustment 
made under this paragraph (c)(3)(iii).
    (d) Atlantic blue and white marlin. (1) Effective January 1, 2007, 
and consistent with ICCAT recommendations and domestic management 
objectives, NMFS will establish the annual landing limit of Atlantic 
blue and white marlin to be taken, retained, or possessed by persons 
and vessels subject to U.S. jurisdiction. For the year 2007 and 
thereafter, this annual landing limit is 250 Atlantic blue and white 
marlin, combined.
    (2) Consistent with ICCAT recommendations and domestic

[[Page 48836]]

management objectives, and based on landings statistics, catch rate 
information, amount of time left in the fishing year, and any other 
relevant information, if NMFS determines that aggregate landings of 
Atlantic blue and white marlin exceeded the annual landing limit for a 
given fishing year, as established in paragraph (d)(1) of this section, 
NMFS will subtract any overharvest from the landing limit for the 
following fishing year. If NMFS determines that aggregate landings of 
Atlantic blue and white marlin were below the annual landing limit for 
a given fishing year, as established in paragraph (d)(1) of this 
section, NMFS may add any underharvest to the landing limit for the 
following fishing year.
    (3) Prior to the start of each fishing year or as early as 
possible, NMFS will file with the Office of the Federal Register for 
publication the annual recreational marlin landing limit specified in 
paragraph (d)(1) of this section, adjusted for any overharvest or 
underharvest, as specified in paragraph (d)(2) of this section.
    (4) When the annual marlin landing limit specified in paragraph 
(d)(3) of this section is reached or projected to be reached, NMFS will 
file for publication with the Office of the Federal Register an action 
restricting fishing for Atlantic blue and white marlin to catch-and-
release fishing only. In no case shall such adjustment be effective 
less than 5 days after the date of publication. From the effective date 
and time of such action until additional landings become available, no 
blue or white marlin from the management unit may be taken, retained, 
or possessed.
    18. In Sec.  635.28, paragraphs (a)(1) and (a)(3) are revised to 
read as follows:


Sec.  635.28  Closures.

    (a) * * *
    (1) When a BFT quota, other than the Purse Seine category quota 
specified in Sec.  635.27(a)(4), is reached, or is projected to be 
reached, NMFS will file a closure action with the Office of the Federal 
Register for publication. On and after the effective date and time of 
such action, for the remainder of the fishing year or for a specified 
period as indicated in the action, fishing for, retaining, possessing, 
or landing BFT under that quota is prohibited until the opening of the 
subsequent quota period or until such date as specified in the action.
* * * * *
    (3) If NMFS determines that variations in seasonal distribution, 
abundance, or migration patterns of BFT, or the catch rate in one area, 
precludes participants in another area from a reasonable opportunity to 
harvest any allocated domestic category quota, as stated in Sec.  
635.27(a), NMFS may close all or part of the fishery under that 
category. NMFS may reopen it at a later date if NMFS determines that 
reasonable fishing opportunities are available, i.e., BFT have migrated 
into the area or weather is conducive for fishing, etc. In determining 
the need for any such interim closure or area closure, NMFS will also 
take into consideration the criteria specified in Sec.  635.27(a)(8).
* * * * *
    19. In Sec.  635.30, paragraphs (b) and (c)(2) are revised to read 
as follows:


Sec.  635.30  Possession at sea and landing.

* * * * *
    (b) Billfish. Any person that possesses a blue marlin or a white 
marlin taken from its management unit or a sailfish taken shoreward of 
the outer boundary of the EEZ or lands a blue marlin or a white marlin 
in an Atlantic coastal port must maintain such billfish with its head, 
fins, and bill intact through offloading. Persons may eviscerate such 
billfish, but it must otherwise be maintained whole. No white marlin 
from the management unit may be taken, retained, or possessed from 
January 1, 2007, through December 31, 2011, inclusive, as specified in 
Sec.  635.22(b).
    (c) * * *
    (2) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark limited access permit may not fillet 
a shark at sea. A person may eviscerate and remove the head and fins, 
except for the second dorsal and anal fin, but must retain the fins 
with the dressed carcasses. The second dorsal and anal fin must remain 
on the shark until the shark is offloaded. While on board and when 
offloaded, wet shark fins may not exceed 5 percent of the dressed 
weight of the carcasses, in accordance with the regulations at part 
600, subpart N, of this chapter.
* * * * *
    20. In Sec.  635.31, paragraph (a)(1) is revised to read as 
follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) Persons that own or operate a vessel from which an Atlantic 
tuna is landed or offloaded may sell such Atlantic tuna only if that 
vessel has a valid HMS Charter/Headboat permit, or a General, Harpoon, 
Longline, Purse Seine, or Trap category permit for Atlantic Tunas 
issued under this part. However, no person shall sell a BFT smaller 
than the large medium size class. No large medium or giant BFT taken 
with speargun fishing gear or green-stick gear, shall be sold. Also, no 
large medium or giant BFT taken by a person aboard a vessel with an 
Atlantic HMS Charter/Headboat permit fishing in the Gulf of Mexico at 
any time, or fishing outside the Gulf of Mexico when the fishery under 
the General category has been closed, shall be sold (see Sec.  
635.23(c)). Persons shall sell Atlantic tunas only to a dealer that has 
a valid permit for purchasing Atlantic tunas issued under this part.
* * * * *
    21. In Sec.  635.34, paragraphs (a) and (b) are revised; and 
paragraph (d) is added to read as follows:


Sec.  635.34  Adjustment of management measures.

    (a) NMFS may adjust the catch limits for BFT, as specified in Sec.  
635.23; the quotas for BFT, shark and swordfish, as specified in Sec.  
635.27; the marlin landing limit, as specified in Sec.  635.27(d); and 
the minimum sizes for Atlantic blue and white marlin, as specified in 
Sec.  635.20.
    (b) In accordance with the framework procedures in the Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks and the 
Fishery Management Plan for Atlantic Billfishes, NMFS may establish or 
modify for species or species groups of Atlantic HMS the following 
management measures: maximum sustainable yield or optimum yield levels 
based on the latest stock assessment or updates in the SAFE report; 
domestic quotas; recreational and commercial retention limits, 
including target catch requirements; size limits; fishing years or 
fishing seasons; shark fishing regions or regional quotas; species in 
the management unit and the specification of the species groups to 
which they belong; species in the prohibited shark species group; 
classification system within shark species groups; permitting and 
reporting requirements; workshop requirements; Atlantic tunas Purse 
Seine category cap on bluefin tuna quota; time/area restrictions; 
allocations among user groups; gear prohibitions, modifications, or use 
restriction; effort restrictions; essential fish habitat; and actions 
to implement ICCAT recommendations, as appropriate.
* * * * *
    (d) When considering a framework adjustment to add, change, or 
modify time/area closures, NMFS will consider, consistent with the FMP, 
the Magnuson-Stevens Act, and other applicable law, the following: any 
ESA-related issues, concerns, or requirements, including applicable 
Biological Opinions; bycatch

[[Page 48837]]

rates of protected species, prohibited HMS, or non-target species both 
within the specified or potential closure area(s) and throughout the 
fishery; bycatch rates and post-release mortality rates of bycatch 
species associated with different gear types; new or updated landings, 
bycatch, and fishing effort data; applicable research; social and 
economic impacts; and the practicability of implementing new or 
modified closures compared to other bycatch reduction options. If the 
species is an ICCAT managed species, NMFS will also consider the 
overall effect of the United States' catch on that species before 
implementing time/area closures.
    22. In Sec.  635.71, paragraphs (a)(7), (a)(8), (a)(23), (a)(37), 
(a)(41), (a)(42), (a)(43), (a)(44), (b)(6), (b)(22), (c)(1), (c)(6), 
(d)(10), (d)(11), (e)(11), and (e)(15) are revised; and paragraphs 
(a)(48) through (a)(53), (b)(30), (c)(7) through (c)(9), and (d)(14) 
are added to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (7) Fail to allow an authorized agent of NMFS to inspect and copy 
reports and records, as specified in Sec.  635.5(e) and (f) or Sec.  
635.32.
    (8) Fail to make available for inspection an Atlantic HMS or its 
area of custody, as specified in Sec.  635.5(e) and (f).
* * * * *
    (23) Fail to comply with the restrictions on use of pelagic 
longline, bottom longline, gillnet, buoy gear, or speargun gear as 
specified in Sec.  635.21(c), (d), (e)(3), (e)(4), or (f).
* * * * *
    (37) Fail to report to NMFS, at the number designated by NMFS, the 
incidental capture of listed whales with shark gillnet gear as required 
by Sec.  635.5.
* * * * *
    (41) Fail to immediately notify NMFS upon the termination of a 
chartering arrangement as specified in Sec.  635.5(a)(5).
    (42) Count chartering arrangement catches against quotas other than 
those defined as the Contracting Party of which the chartering foreign 
entity is a member as specified in Sec.  635.5(a)(5).
    (43) Fail to submit catch information regarding fishing activities 
conducted under a chartering arrangement with a foreign entity, as 
specified in Sec.  635.5(a)(5).
    (44) Offload charter arrangement catch in ports other than ports of 
the chartering Contracting Party of which the foreign entity is a 
member or offload catch without the direct supervision of the 
chartering foreign entity as specified in Sec.  635.5(a)(5).
* * * * *
    (48) Purchase any HMS that was offloaded from an individual vessel 
in excess of the retention limits specified in Sec. Sec.  635.23 and 
635.24.
    (49) Sell any HMS that was offloaded from an individual vessel in 
excess of the retention limits specified in Sec. Sec.  635.23 and 
635.24.
    (50) Fail to be certified for completion of a NMFS protected 
species workshop, as required in Sec.  635.8(a).
    (51) Fail to have on board a vessel the valid protected species 
workshop certificates issued to the vessel owner and vessel operator as 
required in Sec.  635.8(a).
    (52) Transfer or falsify a NMFS protected species workshop 
certificate or a NMFS Atlantic HMS identification workshop certificate 
as specified at Sec.  635.8.
    (53) Fish for, catch, possess, retain, or land an Atlantic HMS 
using, or captured on, buoy gear, as defined at Sec.  635.2, unless the 
vessel owner has been issued a swordfish directed limited permit or a 
swordfish handgear limited access permit in accordance with Sec.  
635.4(f).
    (b) * * *
    (6) As the owner of a vessel permitted, or required to be 
permitted, in the Atlantic HMS Angling or Atlantic HMS Charter/Headboat 
category, fail to report a BFT, as specified in Sec.  635.5(c)(1) or 
(c)(3).
* * * * *
    (22) As the owner or operator of a purse seine vessel, fail to 
comply with the requirement for possession at sea and landing of BFT 
under Sec.  635.30(a).
* * * * *
    (30) Harvest or fish for tunas using spearguns with powerheads, as 
specified in Sec.  635.21(f).
    (c) * * *
    (1) As specified in Sec.  635.21(e)(2), retain a billfish harvested 
by gear other than rod and reel, or retain a billfish on board a vessel 
unless that vessel has been issued an Atlantic HMS Angling or Charter/
Headboat permit or has been issued an Atlantic Tunas General category 
permit and is participating in a tournament in compliance with Sec.  
635.4(c).
* * * * *
    (6) As the owner of a vessel permitted, or required to be 
permitted, in the Atlantic HMS Angling or Atlantic HMS Charter/Headboat 
category, fail to report a billfish, as specified in Sec.  635.5(c)(2) 
or (c)(3).
    (7) Deploy a J-hook or an offset circle hook in combination with 
natural bait or a natural bait/artificial lure combination when 
participating in a tournament for Atlantic billfish, as specified in 
Sec.  635.21(e)(2).
    (8) Take, retain, or possess an Atlantic blue or white marlin when 
the fishery for these species is closed, as specified in Sec.  
635.27(d).
    (9) Take, retain, or possess an Atlantic white marlin from January 
1, 2007, through December 31, 2011, inclusive, as specified in Sec.  
635.22(b).
    (d) * * *
    (10) Retain, possess, sell, or purchase a prohibited shark, 
including parts or pieces of prohibited sharks, as specified under 
Sec. Sec.  635.22(c), 635.24(a)(3), and 635.27(b)(1), or fail to 
disengage any hooked or entangled prohibited shark with the least harm 
possible to the animal as specified at Sec.  635.21(d)(3).
    (11) Receive, purchase, trade for, or barter for Atlantic shark and 
fail to be certified for completion of a NMFS Atlantic HMS 
identification workshop in violation of Sec.  635.8(b).
* * * * *
    (14) Receive, purchase, trade for, or barter for Atlantic shark 
without making available for inspection, at each of the dealer's places 
of business, a valid Atlantic HMS identification workshop certificate 
issued by NMFS in violation of Sec.  635.8(b).
    (e) * * *
    (11) As the owner of a vessel permitted, or required to be 
permitted, in the swordfish directed or a swordfish handgear limited 
access permit category, possess or deploy more than 35 individual buoy 
gears per vessel, or deploy buoy gear without affixed monitoring 
equipment, as specified at Sec.  635.21(e)(4)(iii).
* * * * *
    (15) As the owner of a vessel permitted, or required to be 
permitted, in the Atlantic HMS Angling or Atlantic HMS Charter/Headboat 
category, fail to report a North Atlantic swordfish, as specified in 
Sec.  635.5(c)(2) or (c)(3).
    23. In Appendix A to Part 635, revise Table 2 and add Table 3 to 
read as follows:

Appendix A to Part 635--Species Tables

* * * * *

[[Page 48838]]



           Table 2 of Appendix A to Part 635--Pelagic Species
 
Albacore tuna, Thunnus alalunga
Bigeye tuna, Thunnus obesus
Blue shark, Prionace glauca
Bluefin tuna, Thunnus thynnus
Dolphin fish, Coryphaena hippurus
Oceanic whitetip shark, Carcharhinus longimanus
Porbeagle shark, Lamna nasus
Shortfin mako shark, Isurus oxyrinchus
Skipjack tuna, Katsuwonus pelamis
Swordfish, Xiphias gladius
Thresher shark, Alopias vulpinus
Wahoo, Acanthocybium solandri
Yellowfin tuna, Thunnus albacares
 


           Table 3 of Appendix A to Part 635--Demersal Species
 
Atlantic sharpnose shark, Rhizoprionodon terraenovae
Black grouper, Mycteroperca bonaci
Blackfin snapper, Lutjanus buccanella
Blacknose shark, Carcharhinus acronotus
Blacktip shark, Carcharhinus limbatus
Bonnethead shark, Sphyrna tiburo
Bull shark, Carcharhinus leucas
Cubera snapper, Lutjanus cyanopterus
Dog snapper, Lutjanus jocu
Finetooth shark, Carcharhinus isodon
Gag grouper, Mycteroperca microlepis
Great hammerhead shark, Sphyrna mokarran
Lane snapper, Lutjanus synagris
Lemon shark, Negaprion brevirostris
Mangrove snapper, Lutjanus griseus
Marbled grouper, Dermatolepis inermis
Misty grouper, Epinephelus mystacinus
Mutton snapper, Lutjanus analis
Nurse shark, Ginglymostoma cirratum
Queen snapper, Etelis oculatus
Red grouper, Epinephelus morio
Red hind, Epinephelus guttatus
Red snapper, Lutjanus campechanus
Rock hind, Epinephelus adscensionis
Sandbar shark, Carcharhinus plumbeus
Scalloped hammerhead shark, Sphyrna lewini
Schoolmaster snapper, Lutjanus apodus
Silk snapper, Lutjanus vivanus
Silky shark, Carcharhinus falciformis
Smooth hammerhead shark, Sphyrna zygaena
Snowy grouper, Epinephelus niveatus
Speckled hind, Epinephelus drummondhayi
Spinner shark, Carcharhinus brevipinna
Tiger shark, Galeocerdo cuvieri
Vermilion snapper, Rhomboplites aurorubens
Warsaw grouper, Epinephelus nigritus
Yellowedge grouper, Epinephelus flavolimbatus
Yellowfin grouper, Mycteroperca venenosa
Yellowtail snapper, Ocyurus chrysurus
 

[FR Doc. 05-15965 Filed 8-18-05; 8:45 am]
BILLING CODE 3510-22-S